FCMB PLC v. ISHOLA & ANOR (2020)

FCMB PLC v. ISHOLA & ANOR

(2020)LCN/14598(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, September 25, 2020

CA/AK/269/2018

RATIO

PLEADINGS: JURISDICTION.

The Supreme Court per Obaseki, JSC, settled this matter when it held: “The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the appeal Courts. This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction in the Court it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it, see Odiase V Agho (supra). There is no justice in exercising jurisdiction where there is none. It is injustice to the law, to the Court and to the parties so to do.” See also LADOJA V INEC (2007) 12NWLR, PT 1047, 115 and ESANUBOR & ANOR V FAWEYA & ORS (2019) LPELR- 46961(SC). It can never therefore be too late in law to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect on judicial administration. Such issue can also be raised without leave of Court provided always that the other party is put on notice either by way of preliminary objection, by motion on notice or as a ground of appeal. The issue of jurisdiction is exempted from the restrictions which hamper other legal points from being raised for the first time on appeal. The submission of learned counsel to the respondent that the appellant was served with all the endorsed processes in 2010 but said nothing is of no moment as that cannot as that cannot be used to estop them from raising it now. The only unfortunate consideration is that raising it at this stage is no longer useful in saving valuable judicial time and cost expended in the trial should this Court pronounce the trial a nullity. Per PATRICIA AJUMA MAHMOUD, J.C.A.

RATIO

PLEADINGS: ENDORSEMENT OF A WRIT.

ORDER 6(2) (3) of the OSUN STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2008 provides as follows:
“Each copy SHALL be signed by the LEGAL PRACTITIONER or by a PLAINTIFF where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.” (Emphasis provided).
The learned counsel to the appellants did also rely on Sections 2 and 24 of the Legal Practitioners Act, Cap L11, LFN, 2004 to contend that where a Plaintiff is represented by a legal practitioner, the law mandates that the process be endorsed with the name of a solicitor whose name is on the role of legal practitioners duly certified to practice in Nigeria. While I agree that this represents the law, the contention in this case is not whether MR Kehinde Adesiyan whose name appeared as counsel for the Plaintiffs/Respondents is a legal Practitioner within the meaning of the Act as opposed to Kehinde Adesiyan & Co who is not a human person capable of being enrolled as a barrister and solicitor in the Supreme Court. The crux of the matter in this case is whether MR Kehinde Adesiyan signed the Writ of Summons as obviously the Plaintiffs/Respondents had elected to sue through a legal practitioner. This may however become relevant when the half hearted submission of the Respondent’s counsel that the writ was signed at the top. I will deal with this issue later.
The learned counsel to the Respondents in his submission blew hot and cold a lot in his brief. At one point he seems to concede that the writ was not signed but the irregularity was cured by signing the accompanying statement of claim or by the amendment of the writ. This style of sitting on the fence as it were is novel in advocacy but perhaps that can be accommodated since in law there are always grey areas; it’s never white or black. Assuming that I have made the right assumptions from counsel’s submissions that he conceded that the Originating Writ of Summons was not signed but only argued that the statement of claim endorsed thereon having been properly signed and the Writ of Summons amended by order of Court sought and granted on the 26th April, 2016, the defective or incompetent writ was no longer material before the Court, it still needs to be determined whether that original writ was competent.
The relevant writ in question is contained at pages 2-3 of the record. For the avoidance of doubt I reproduce part of this writ:
“This Writ issued by KEHINDE ADESIYAN ESQ OF KEHINDE ADESIYAN & CO. Whose address for service is …. Kehinde Adesiyan Esq. Kehinde Adesiyan & Co. 2, Olaore Shopping Complex, Opposite Christ African Church Pry, School, Gbongan Road, Osogbo.
agent of THE PLAINTIFF of SAME ADDRESS.”
I also reproduce the relevant portion of the amended Writ of Summons at pages 136-137 of the record.
“This Writ issued by KEHINDE ADESIYAN ESQ OF KEHINDE ADESIYAN & CO
Whose address for service is ……
Signed
Kehinde Adesiyan Esq.
Kehinde Adesiyan & Co.
2, Olaore Shopping Complex,
Opposite Christ African Church
Pry School, Gbongan Road,
Osogbo.
Agent for THE PLAINTIFF
of SAME ADDRESS.”
A cursory look at the two processes confirm without a doubt that while the originating Writ of Summons was not signed by MR Kehinde Adesiyan, counsel to the respondents, the amended Writ of Summons was properly signed by him.
The Respondents’ counsel did not hold a contrary view in his various contentions under issue (1). I am therefore inclined to agree with the appellant’s counsel’s contention that the Originating Writ of Summons filed on the 7th October, 2010 was not signed by the respondents’ counsel.
The settled position of the law is that any initiating process not signed by the Legal Practitioner or by the Plaintiff if he sues in person is incompetent. Order 6(2)(3) of the Osun State High Court (Civil Procedure) Rules (supra) involves the procedural jurisdiction of the Court and the provisions are mandatory, not discretionary. This means that non-compliance with it is not a mere irregularity. See SLB CONSORTIUM LTD V NNPC (2011) 9 NWLR, PT 1252, 317. Besides even if this provision of the Rules of Osun State High Court is held to be permissive, the failure of the legal practitioner to sign the process will still be caught up by Sections 2 and 24 of the Legal Practitioners Act (supra).
This is perhaps a good time to bring up the issue raised even if feebly by the respondents’ counsel that the writ was signed at the top of it. I have gone back to page 2 of the record to confirm this allegation. Curiously there’s a mark which could pass for a signature on the line where it is written: “This Writ issued by KEHINDE ADESIYAN ESQ of KEHINDE ADESIYAN & CO.” A cursory comparison confirms to me that this signature is not the same as that signed above counsel’s name at page 137. It may well not have been done by the same person. Assuming that I am misconceived in my judgment and it is indeed the signature of counsel, Kehinde Adesiyan, the mark is directly on top of Kehinde Adesiyan & Co and not above Kehinde Adesiyan Esq. If somebody was trying to be clever by half by signing this, probably for counsel since I have said it looks distinctly different from counsel’s signature on the statement of claim, they are caught up by Sections 2 and 24 of Legal Practitioners Act (supra). The law is trite that where an Originating Process as in this case, the Writ of Summons is not signed by the litigating party where he sues in person or by the legal practitioner on his behalf, the process is rendered invalid and defective. This defect which is incurable ousts the jurisdiction of the Court: ENEBONG & ANOR V EDEM & ORS (2016) LPELR-41190 (CA); MADUKOLU V NKEMDILIM (1962) 2 SCNLR, 341; OKARIKA V SAMUEL (2013) 7 NWLR, PT 1352, 19; EFFIOM V ETENG (2018) LPELR-46130(CA); GTB PLC V TOYED NIGERIA LTD & ANOR (2016) LPELR-41481(CA); HON LUCKY ODILI V NIGERIA AGIP OIL COMPANY LTD (2018) LPELR-45165(CA) and BASSEY V PRUDENTIAL CO-OPERATIVE MICRO FINANCE BANK LTD (2018) LPELR-44338(CA).
The requirement of the Legal Practitioners Act is that generally, it is a legal practitioner called to the Nigerian Bar and whose name appears in the Roll of legal Practitioners, who may issue Court processes including originating processes like the writ of summons. Per PATRICIA AJUMA MAHMOUD, J.C.A.

RATIO

PLEADINGS: MEANING OF LEGAL PRACTITIONER.

There are a plethora of cases on who is a legal practitioner within the meaning of the Act. The locus classicus on this however is readily OKAFOR V NWEKE (2007) 10 NWLR, PT 1043, 521.
In that case, a motion on notice, a notice of cross appeal and applicant’s brief of argument in support of the said motion were all signed by and issued by the law firm of JHC OKOLO SAN & CO. In deciding the issue of a legal practitioner, the apex Court held: “Since both counsels (sic) agree that JHC OKOLO SAN & CO is not a legal practitioner recognized by the law, it follows that the said JHC OKOLO & CO cannot legally and/or file any process in the Courts and as such the motion on notice filed on the 19th December, 2005; notice of cross appeal and applicant brief of argument in support of the said motion all signed and issued by the firm known and called JHC OKOLO & CO are incompetent in law particularly as the said firm is not a registered legal practitioner.” See also SLB CONSORTIUM V NNPC (SUPRA); OKPE V FAN MILK PLC & ANOR (2017) 2 NWLR, PT 1549, 282; EMEKA V CHUBA-IKPEAZU (2017) 15 NWLR, PT 1589, 345 and EMERAH & ANOR V OLADOSUN & ORS (2018) LPELR-46555(CA). The primary thread that runs through all these cases and similar others is that any originating process signed and issued under a law firm only as in this case, Kehinde Adesiyan & Co is incurably defective and any decision predicated thereon is a nullity. Per PATRICIA AJUMA MAHMOUD, J.C.A.

RATIO

PLEADINGS: INCOMPETENT PROCESS.

in law an incompetent process cannot be amended. The defect in the unsigned Writ of Summons goes to the root of the proceedings and renders same void ab initio. The Writ of Summons is the foundation of every subsequent process, be it amendment, statement of claim, etc.
It therefore has to be competent to sustain any subsequent amendment or process. To hold otherwise as contended by respondents’ counsel is an invitation to catastrophe; to put something on nothing will make it to surely crumble. See the case of SLB CONSORTIUM LTD V NNPC (SUPRA); UBN PLC V LAWAL (2011) LPELR-8879 (CA); IN RE: ACCESS BANK & ORS (2018) LPELR-45949.
Indeed Muntaka-Coomasie, JSC puts it very practically in the case of MINISTRY OF WORKS & TRANSPORT, ADAMAWA STATE V YAKUBU (2013) 6 NWLR PT 1351, 481 AT 496 PARAS C-E: “The questions that easily come to mind are that, can an incompetent originating process or processes be amended, or can the incompetence of the process be cured by an amendment?…………. the entire suit was incompetent ab initio. It was dead at the point of filing………. The originating process is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment”
It follows from these authorities that the amendment to the Writ of Summons sought and granted by the trial Court on the 26th day of April, 2016 was an exercise in futility as the motion to amend the unsigned, incompetent and void Writ of Summons was a prayer to resuscitate a dead process which unfortunately the trial erroneously made. Barring any limitation law, the proper application by the respondents’ counsel ought to have been one withdrawing the Writ of Summons and having the same struck out if this had come to his attention at the trial Court. The Plaintiffs/Respondents could then have filed a properly endorsed Writ of Summons. That way this trial could have been avoided, saving ample judicial time and valuable resources for all concerned.
Having found that the Originating Writ of Summons in this case was incompetent and has therefore robbed the trial Court of jurisdiction to either amend the defective writ or to indeed try the matter it follows that everything or every step taken by the trial Court subsequent thereto was void and a nullity in law. Per PATRICIA AJUMA MAHMOUD, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

FIRST CITY MONUMENT BANK PLC APPELANT(S)

And

1. CHIEF FUNSO ISHOLA 2. FISOLA LIMITED RESPONDENT(S)

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The 1st Respondent was offered and he accepted an overdraft facility of N15,000,000 (Fifteen Million Naira) from the Defendant/Appellant on the 19th April, 2007. On the 12th June, 2007, an additional overdraft facility of N8,000,000 (Eight Million Naira) was offered and accepted by the 2nd Plaintiff/Respondent. On the 25/01/2008, the two facilities were merged and re-offered to the 2nd Plaintiff/Respondent as a N23,000,000 (Twenty-Three Million Naira) facility.

On the 30/07/2008 this facility was renewed for the 2nd Plaintiff/Respondent on the same terms and the same security. The collateral security for the facilities in all the three agreements was a lien on the shares of the Plaintiffs/Respondents contained in the joint memorandum addressed to Central Security Cleaning System (CSCS). The condition given for the draw down or assessing the facilities included consignment of all blue chip shares of the Plaintiffs/Respondents to CSCS as security for the loan, the statement of the stock position, i.e. the value of the shares as at the time of the offer, confirmation from CSCS that the value was

correct, receipt of certificate of pledge and letter of set off over the shares used as collateral, receipt of undated letter addressed to CSCS authorizing the defendant to sell the pledged shares in the event of default and others as contained in the clause titled: “Condition Precedent to Drawdown.” There were two pertinent clauses: Margin call and other conditions and covenants which gave the defendant unilateral powers over the Plaintiffs’ shares but these conditions were jettisoned by the Defendant/Appellant to the detriment of the Plaintiffs. When the Plaintiffs/Respondents engaged the services of a forensic expert to look into their accounts, it was discovered that there were illegal deductions and spurious dealings with the plaintiffs’ accounts by the defendant.

The Plaintiffs/Respondents by an amended statement of claim dated 17/06/2016 but filed on the 20/06/2016 claimed against the Defendant/Appellant the following reliefs:-
(a) A DECLARATION that the failure of the Defendant to act swiftly by selling the stocks in line with the terms of agreement automatically determined the transactions dated 19th April, 2017, 25th

January, 2008 and 30th July, 2008 respectively.
(b) A DECLARATION that the purported conversion of the Secured Overdraft Facilities of the Plaintiffs to a Term Loan by the Defendant is fraudulent, in bad faith, null and void.
(c) A DECLARATION that the Defendant being a Commercial Bank registered and licensed in Nigeria is bond (sic) by the Banks & Other Financial Institutions Act (BOFIA) of June 20, 1991 (CAP B3 2004 Laws of the Federation of Nigeria) Other various Guidelines, Monetary Policies, Circulars etc. issued by the Central Bank of Nigeria (CBN) to Commercial Bank (sic) operating in Nigeria.
(d) A DECLARATION that any charge on or debit on claimant accounts by the Defendants neither mutually agreed ab initio nor provided for or covered by BOFIA (supra) and or other various Guidelines issued by the Central Bank of Nigeria is wrongful, illegal, null and void.
(e) A DECLARATION that under (sic) by virtue of the banker/customer relationship subsisting between the 2nd Claimant and the Defendant, the Defendant owes a fiduciary duty of care to the 2nd Claimant to ensure that all entries and bank charges made by the Defendant in the

2nd Claimant’s accounts maintained therewith the Defendant are accurate, correct and in accordance with the prevailing contract and regulatory prescriptions and directives as determined by the CBN from time to time and
(f) A DECLARATION that the Defendant Bank is entitled to fully mitigate the 2nd Claimant by way of a refund; any wrongful entry into its account within 14 days upon being put on notice pursuant to the strict provisions of Section 3.2.4.g. of the CBN Monetary, Credit, Foreign Trade & Exchange Policy Circular No. 38 of 05/01/2010.
(g) A DECLARATION that the various credit facilities contracts originated by the Defendant was tainted with ex facie (id est, on its face) and performance illegalities and that the Defendant perfected the subject illegality only.
(h) A DECLARATION that the STATEMENT OF ACCOUNT prepared by the Defendant is UNRELIABLE and does not represent the true state of affairs of the 2nd Claimant arising from the passing of the EXCESS BANK CHARGES and application of illegal interest rates and particularly gross violation of the Central Bank of Nigeria Guidelines and the CBN Guide to bank Charges of

01/01/2004.
(i) A DECLARATION that the Claimant is entitled to the Defendant Bank for any sum whatsoever.
(j) A DECLARATION that the 2nd Claimant is entitled to the Identified and unchallenged stolen sum from the accounts for N18,105,090.91 styled excess, spurious and illegal bank charges as per the Consultant’s unchallenged “a fortiori” reports dated 23/04/2014 and covering the period between 20/03/2007 and 26/11/2012.
(k) A DECLARATION that the 2nd Claimant is entitled to 100% Penalty of the stolen sum styled excess bank charges for N10,046,662.53 as a result of the failure of the Defendant to refund the identified and unchallenged excess bank charges within the statutory 14-day period pursuant to the strict provision of Section 3.2.5.g. of the CBN Monetary, Credit, Foreign Trade & Exchange Policy Circular No. 40 of 01/01/2014 and by extension; in breach of relevant provisions of Sections 60(1), 60(2)(a) and 64(1 ) of the Bank & other Financial Institutions Act (BOFIA) of June, 20, 1991 (CAP B3 2004 Laws of the Federation of Nigeria).
(l) A DECLARATION that the 1st Claimant is entitled to a refund of the accounts

statements gleaned alleged total deposit for N106,370,873.10 (including interest refund at the prevailing CBN MRR/MPR for N46,422,456.66 sum) as embedded in the accounts from in variously credited monies lent thereto the Defendant and as a result of both ex facie and performance illegalities, fraud, undue influence and duress as perpetuated in the accounts by the Claimant and as espoused in the Consultants’ unchallenged, uncontroverted and undisputed “a fortiori” report dated 23/04/2014 and covering the period between 20/03/2007 and 26/1/2012.
(m) A DECLARATION that the 1st Claimant is entitled to 100% Penalty of the account statement gleaned alleged deposit for N59,948.416.44 as a result of the failure of the Defendant to Refund the identified and unchallenged excess bank charges within the statutory 14-day period pursuant to the strict provisions of Section 3.2.5.g. of the CBN Monetary, Credit, Foreign Trade & Exchange Policy Circular No. 40 of 01/01/2014 and by extension; in breach of relevant provisions of Sections 60(1), 60(2)(a) and 64(1) of the Bank & Other Financial Institutions Act (BOFIA) of June 20, 1991 (CAP B3 2004 Laws of the Federation of Nigeria).

(n) AN ORDER DIRECTING the Defendant to pay by Certified Bank Draft/Funds Transfer the sum of N10,046,662.53 plus interest thereon At the prevailing CBN MRR/MPR as at 23/04/2014 for N8,058,428.38 being excess Bank charges illegally and wrongfully passed into 2nd Claimant’s accounts and A FURTHER ORDER directing the Defendant to pay to the Claimant the mandatory 100% Penalty of the amount of EXCESS BANK CHARGES i.e. on (N10,046,662.53) and totalling N28,151,753.43 arising from the provision of Section 3.2.5.g. of the CBN Monetary, Credit, Foreign Trade and Exchange Policy No. 40 of 01/01/2014 for failure of the Defendant to refund the subject sum to the 2nd Claimant within 14 days of being put on notice.
DESCRIPTION – AMOUNT
100% Penalty for 14-day Non-Refund Breach – 10,046,662.53
Add: Wednesday, April 23, 2014 Excess Charges Refund Demand – 18,105,090.91
Total Refundable By the Defendant bank to the 2nd Claimant – 28,151,753.44
(o) AN ORDER DIRECTING the Claimant to pay by Certified Bank Draft/Funds Transfer the sum of N59,948,416.44 plus interest thereon at the prevailing CBN MRR/MPR as at

23/04/2014 for N46,422,456.66 Being account statement gleaned alleged deposit in the 2nd Claimant’s account and A FURTHER ORDER directing the Defendant to Pay to the Claimant the mandatory 100% Penalty on the said amount i.e. on (N59,948,416.44) and totalling N166,319,289.54 in variously credited monies lent thereto the Defendant bank during the pendency of the financial relationship and as a result of both ex facie and performance illegalities, fraud, undue influence and duress as perpetuated in the accounts by the Claimant and as espoused in the Consultants’ unchallenged, uncontroverted and undisputed “a fortiori” report dated 23/04/2014 and covering the period Between 20/03/2007 and 26/11/2012.
DESCRIPTION – AMOUNT
100% Penalty for 14-day Non-Refund Breach – 59,948,416.44
Add: Wednesday, April 23, 2014 Gleaned Deposit Refund Demand – N106,370,873.10
Total Refundable By the Defendant bank to the 2nd Claimant – 166,319,289.54
(p) AN ORDER releasing and discharging the Claimants from all and any obligation and liabilities in the banking contract between the 2nd Claimant and the Defendant bank

arising from the Defendant’s breach of the aforesaid contract.
(q) AN ORDER OF THE HONOURABLE COURT for interest thereon at the commercial rate of 21% p.a. from date of filing this suit till date of judgment and thereafter at 10% p.a. till liquidation thereof.
(r) The sum of N100,000,000.00 being and representing general and exemplary damages for the Defendant’s conduct which conduct was calculated to undeservedly benefit the Defendant in excess of the lawfully allowable profits by reason of the unwarranted manipulation of the 2nd Claimant’s said accounts by the Defendant to the prejudice of the 1st Claimant.
(s) AN ORDER directing the Defendant to pay the 2nd Claimant the Sun of N2,000,000.00 (Two Million Naira Only) being the professional Fees paid to the Forensic Consultant engaged to carry out the Forensic examination of Statements of Accounts.
(t) N500,000.00 (Five Hundred Thousand Naira Only) being cost of this suit.
(u) The return of the 50% stock in excess of the 100% of the facility amount as at 30th July, 2008 which value totalled N15,608,564.37k.
(v) The return of all further lodgment into the account

as from 1st June, 2008 till date which amounted to N10,072.517.65.
(w) Interest of 21% on the amount due to the Plaintiffs as in (c) above from the date of judgment until finally liquidated.
(x) An order for the return of the sum of N1,000,000.00 being the value of the 20,000 Units shares of First Bank Plc bought on behalf of the plaintiffs by the defendant for failure to account and release the share Certificate to the Plaintiffs.
In proof of their case, the 1st Plaintiff/Respondent testified on their own behalf as PW1, called two other witnesses and tendered several exhibits.

The Defendant/Appellant denied the allegations of illegal deductions, excessive interest charges and failure to sell the stock and shares used as collateral security for the loan transaction by the Plaintiffs/Respondents before the global fall of shares in late 2007 and 2008, contending that the Defendant/Appellant had other options to recover its money from the Plaintiffs/Respondents.

The Defendant/Appellant also counter claimed against the Plaintiffs/Respondents as follows:
(a) A Declaration that as 25th February 2010, the Plaintiffs are indebted to the

Defendant in the sum of N30,285,319.96k (thirty million, two hundred and eight five thousand, three hundred and nineteen naira ninety six kobo) being sum of money due to the Defendant from the Plaintiffs with respect to the plaintiff’s Account No: 0682-0602-7846-6001 maintained with the Defendant Bank relating to banking transactions in the Offer Letters of April 2007, June 2007, January 2008, July 2008 and June 2009 respectively which said offers were accepted by the Plaintiffs from the Defendant Bank.
(b) IN THE ALTERNATIVE TO (a) above, a Declaration that as at 29th July, 2011, the Plaintiffs are indebted to the Defendant in the sum of N35,593,248.47K (third five million, five hundred and ninety three thousand, two hundred and forty eight naira, forty seven kobo) being sum of money due to the Defendant from the Plaintiffs with respect to the Plaintiff’s Account No: 0682-0602-7846-6001 maintained with the Defendant Bank relating to banking transactions in the Offer Letters of April 2007, June 2007, January 2008, July 2008 and June 2009 respectively which said Offers were accepted by the Plaintiffs from the Defendant Bank.
(c) Judgment

in the sum N23,184,632.67k (twenty three million, one hundred and eight four thousand, six hundred and thirty two naira, sixty seven kobo) being part of the debt of the Plaintiffs transferred and or taken over from the Defendant by Asset Management corporation of Nigeria (AMCON) on 20th May 2011 of which said sum has not been settled or liquidated by the Plaintiffs as at date.
(d) 15% agreed interest on the said N23,184,632.67k (twenty three million, one hundred and eight four thousand, six hundred and thirty two naira, sixty seven kobo) from 20th May 2011 till the date of judgment.
(e) 10% Court interest on the said sum N23,184,632.67k (twenty three million, one hundred and eight four thousand, six hundred and thirty two naira, sixty seven kobo) from the date of judgment till final liquidation.
(f) Judgment in the sum of N12,497,827.81 (twelve million, four hundred and ninety seven thousand, eight hundred and twenty seven naira, eighty one kobo) being part of the debt of Plaintiffs to the Defendant which was written off by the Defendant on 29th July 2011 to enable the Defendant maintain a clean record book of which said sum has not been settled

or liquidated by the Plaintiffs as at date.
(g) 15% agreed interest on the said N12,497,827.81 (twelve million, four hundred and ninety seven thousand, eight hundred and twenty seven naira, eighty one kobo) from 29th July 2011 till the date of judgment.
(h) 10% Court interest on the said N12,497,827.81 (twelve million, four hundred and ninety seven thousand, eight hundred and twenty seven naira, eighty one kobo) from the date of judgment till final liquidation.
(i) Cost of this proceeding.

In support of their defence/counterclaim, the Defendant/Appellant called two witnesses and tendered some exhibits. The Defendant/Appellant had sought to also tender the offer letter of 02/06/2009 but upon the objection of the Plaintiffs/Respondents which was upheld by the Court; same was rejected and marked R1.

At the close of evidence, parties filed and exchanged written addresses which were adopted. In a considered judgment delivered on the 26th June 2018, his Lordship, Hon. Justice A. A. Aderibigbe of the Osun State High Court sitting at Ejigbo, found in favour of the Plaintiff/Respondents and granted all their reliefs except the relief covered by

Exhibit P73. The Court dismissed the counter claim filed by the Defendant/Appellant.

Dissatisfied with this judgment, the Defendant/Appellant by its amended Notice of Appeal dated the 17th April, 2019 and filed on the 23rd April, 2019, appealed to this Court on nineteen grounds. Whereof the appellant sought an order of Court allowing the appeal and striking out suit No HOS/85/2010 for being null and void and of no effect. Parties filed and exchanged briefs. This appeal was heard on the appellant’s amended brief settled by MR Wole Omisade of MESSRS OLAWOYIN & OLAWOYIN, filed on the 23/04/2019. The Respondent’s amended brief was settled by MR Kehinde Adesiyan of Counsel and filed on the 07/05/2019.

Premised on the nineteen (19) grounds of appeal, the learned counsel to the appellant distilled the following eight issues for the determination of this Court:
1. Whether the trial Court was right to have dismissed the Appellant’s Counter-Claim (Grounds 3, 4 & 11).
2. Whether the trial Court was right to grant all the reliefs sought by the Respondents when the said claims are nebulous containing various sums of money which

are not ascertainable. (distilled from Grounds 6 and 14).
3. Whether the lower Court ought to have exercised jurisdiction to consider and delivered (sic) judgment on an incompetent, invalid, null and void Writ of Summons dated 7 October, 2010 same having not been signed by the Respondents or their Legal Practitioner. (distilled from Grounds 7, 8 and 9).
4. Whether the trial Court was right to have held that the Respondents are no longer indebted to Appellant because of Appellant’s failure to sell the shares used as collateral security to recover the facilities granted to the Respondents as contained in the offer letters. (distilled from Ground 10)
5. Whether the trial Court was right not to have ascertained the exact monetary awards the Appellant is obligated to pay the Respondents as the judgment sum after it had partly resolved issue (6) in favour of the Appellant. (distilled from Ground 12).
6. Whether it was right for the trial Court to award the sum of N100,000,000.00 (One Hundred Million Naira) only as the general and exemplary damages against the Appellant considering the circumstances of this suit. (distilled from Ground

15)
7. Whether it was right for the trial Court to have awarded penalties for excess charges in favour of the Respondents when the Respondents are not the Central Bank of Nigeria (distilled from Ground 16).
8. Whether it was right for the trial Court to grant reliefs for which no evidence was led by the Respondents (distilled from Ground 18).

On their part, the Respondents formulated five (5) issues for the determination of this Court as follows:
(1) Whether it is correct that the Originating process with which this suit is commenced i.e. the Writ of Summons dated 7th of October, 2010 was incompetent as to rob the Lower Court of the jurisdiction to hear this suit at the Lower Court.
(2) Whether the Learned trial judge was justified in entering final judgment in favour of the Respondents against the Appellant having regard to the oral and documentary evidence led by the parties in this case.
(3) Whether from the reliefs sought from the Lower Court, the monetary awards granted by the Lower Court are unascertainable, vague and nebulous in nature. (Distilled from Grounds 6, 12 and 14).
(4) Whether it was correct to conclude that

the trial Court had granted reliefs for which no evidence was led by the Respondents.(Distilled from Grounds 18).
(5) Whether having expunged issues that were related to Exhibit P. 73 from the judgment of the trial Court, it is correct that the trial Court had awarded penalties for excess charges in favour of the Respondents. (Distilled from Ground 16).

In arguing this appeal, MR W. Omisade of Counsel for the Appellant adopted their brief as their legal arguments in support of the appeal. Issue 3 which is distilled from grounds 7, 8 & 9 of the grounds of appeal challenge the jurisdiction of the trial Court to hear and determine the suit on an incompetent, invalid, null and void writ of summons dated 07/10/2010, same not having been signed by the Respondents or their legal practitioner. In seeking the indulgence of the Court to argue this issue first, counsel referred to pages 1-3 of the record to submit that the Original Writ of Summons dated 7th October, 2010 was not signed by the Respondents or their legal practitioner. Counsel referred to ORDER 6(2)(3) OF THE OSUN STATE HIGH COURT (AMENDED) CIVIL PROCEDURE RULES, 2008 which mandates a

Plaintiff, where he sues in person or his legal practitioner to sign the Writ of Summons. Counsel contended that a writ not so signed is not only invalid but ousts the jurisdiction of the trial Court. Counsel also referred to SECTIONS 2 AND 24 OF THE LEGAL PRACTITIONERS ACT CAP 207, LFN, 2004 to submit that it is mandatory where a Plaintiff is represented by a Legal Practitioner in any suit, for the originating process therein to be signed and endorsed with the name of the solicitor whose name is on the roll of legal practitioners duly certified to practice in Nigeria.

Counsel argued that jurisdiction is fundamental and pivotal to adjudication. That if a Court lacks jurisdiction, it automatically lacks the necessary competence to try a case. That such a defect is very fundamental as it affects the competence of the proceedings, capable of rendering it null and void ab initio. Counsel referred to the cases of OKARIKA V SAMUEL (2013) 7 NWLR, PT 1352, 19 AT 43 and SLB CONSORTIUM LTD V NNPC (2011) 3-4 MJSC, 145 AT 166-167, PARAS F-E to contend that once an initiating process is not signed or authenticated either by the litigating party or the legal

practitioner on his behalf, such a process is invalid and the jurisdiction of the Court is ousted as the defect is taken as incurable. Counsel referred to the case of DADA V DOSUNMU (2006) 18 NWLR PT 1010, 134 to contend that where a rule of law has clearly and unambiguously provided for a particular act or situation, the Courts have a duty to enforce the act or situation and the issue of doing substantial justice does not or should not arise. In other words, that like in this case, the issue of a void writ of summon cannot be said to be a mere technicality to be waived for the Court to apply the principles of substantial justice. That such a defect cannot be cured by other subsequent processes which were endorsed by the legal practitioner. Counsel referred to the case of MUYIWA ODEJAYI & ANOR V HENLEY INDUSTRIES LTD (2013) LPELR, 20368 (CA). Counsel also referred to the cases of SLB CONSORTIUM V NNPC (2011) 3-4 MJSC, 145; OLUWATUYI V OWOJUYIGBE (2015) AFWLR, PT 789, 1083 AT 1097-1099 and OBASANJO V YUSUF (2004) 9 NWLR, PT 788, 1472 AT 221 to submit that an unsigned writ of summons as is the instant case is rendered incompetent and incapable of activating

the jurisdiction of the Court. That in the instant case, the writ of summons having not been signed and endorsed by MR Kehinde Adesiyan, the claimants’ counsel as required by law and procedure, is rendered incompetent.

Counsel contended that pursuant to the order of Court sought and granted on the 26th April, 2016, the plaintiffs amended their writ of summons on the 17th June, 2016. That it was upon this purported Amended Writ of Summons that the case preceded to hearing or trial. Counsel submitted that since the Original Writ of Summons dated 7th October, 2010 was void it was not in existence and therefore nothing could have been put on it. Counsel referred to the dictum of Lord Denning in the celebrated case of MCFOY V UAC LTD (1961) WLR, 1405 to the effect that a void act is a nullity in law and it is incurably bad. Counsel also referred to the Supreme Court cases of HAKIDO KPEMA V THE STATE (1986) 2 SC, 41 ZG 75-77; OKAFOR V A.G, ANAMBRA STATE (1991) 6 NWLR, PT 200, 659 AT 678 and NNB V DENCLARK (2013) 1 MJSC, PT II, 65 AT 81 Which all affirmed and followed the dictum of Lord Denning. Counsel urged the Court to hold that since the Original Writ

of Summons was incurably bad, an Amended Writ cannot be founded on it as you cannot put something on nothing and expect it to stand. Counsel urged the Court to therefore strike out the entire suit for being incompetent.

Issue 3 as argued touches on the jurisdiction of the trial Court. It is akin to a preliminary objection and has the potential of terminating this appeal at this stage. It is therefore pertinent to first resolve this issue before proceeding further in this appeal. In this regard issue (1) as raised by the Respondents’ brief is in pari material with the appellant’s issue 3. In arguing the appeal, MR Kehinde Adesiyan of counsel for the Respondent adopted their amended brief dated and filed on the 7th of May, 2019. In arguing on their issue (1) which is on the competence of the Original Writ of Summons, counsel while conceding to the mandatory nature of ORDER 6 (2) (3) OF THE OSUN STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2008 maintained that the Writ of Summons and other processes filed in this suit on the 10th October, 2010 were properly signed and executed by the Plaintiffs’ Legal Practitioner. Counsel contended that the

Writ of Summons has the name of the issuing authority “KEHINDE ADESIYAN ESQ of KEHINDE ADESIYAN & CO whose address for service is ……………………. Kehinde Adesiyan Esq., Kehinde Adesiyan & Co, 2, Olaore Shopping Complex, Opposite Christ African Church Pry School, Gbongan Road, Osogbo, Agent for THE PLAINTIFFS OF SAME ADDRESS boldly written thereon with signature of the counsel on the top of the process. Counsel contended that the signature as appeared on page 2 of the Record being complained of is sufficient signature of the legal practitioner who issued it. That he does not know how the appellant came about with the issue of an unsigned writ of summons when the said Writ of Summons and all accompanying processes duly signed and sealed were served on the appellant since 2010 and the appellant never raised this issue at the trial lower Court. Counsel urged the Court to discountenance the appellants’ submission in this regard.

Counsel conceded that Sections 2 and 24 of the Legal Practitioners Act, CAP 207, LFN, 2004 and all the cases cited by the Appellant’s Counsel represent the current position of the law but still urged

the Court to declare it inapplicable to the instant case. In a manner akin to a prophecy, counsel contended that a time would come when the Supreme Court will have opportunity to revisit their position on unsigned original processes especially where processes accompanying such processes have been severally amended. Counsel fortified his argument by relying on the case of A.G. EKITI STATE V ADEWUMI (2002) 1 SC, 47 (also reported in (2002) 2 NWLR, PT 751, 474 and correctly cited as ADEWUMI & ANOR V AG, EKITI STATE, not as wrongly cited by counsel), submitted that an amendment takes effect from the date of the original document amended and an action continues as if the amendment had been inserted from the start or beginning. Counsel also referred to the case of ILODIBIA V NCC LTD (1997) 7 NWLR, PT 512, 202-203, PARAS H-A. Counsel referred to the case of ADESOLA V AZEEZ (2005) 1 SC, 1-49 to submit that once the maker of an unsigned document gives evidence of the circumstances that led to his not signing it, such a document will be held admissible. Counsel also referred to the case of SALISU V MOBOLAJI (2016) 15 NWLR, PT 1535, 266, PARAS B-F to contend that the

statement of claim which accompanied the writ supersedes it. Counsel recognises from his submission the position of the Supreme Court on unsigned originating processes but hopes that a time will come when the Supreme Court will revisit their position on the matter! This notwithstanding, counsel argued that in this appeal, two amendments were made which made the processes initially filed and amended otiose and irrelevant. Counsel finally submitted that the Writ of Summons which triggered off this case filed on the 10th October 2010 satisfied all the requirements of the law and the Rules of Court as to signature and was validly issued and served on the Appellant.

The Appellant also filed a reply brief on the 20/05/2019. This reply brief is not paginated but does look too voluminous for a normal reply brief. However, since I will not at this stage concern myself with all the issues raised by the parties, I will refrain from forming an opinion on it. Suffice it to state that while I do not consider it worthwhile to summarize the submissions of counsel in this reply brief, I would if the need arises make reference to the submission in respect of the

respondents’ issue (1).

The issue (3) raised by the appellant is the same with issue (1) as raised by the Respondents. The issue (3) as I have pointed out challenges the competence of the originating process filed before the trial Court and consequently the jurisdiction of the Court. Being an issue of jurisdiction, it can be raised at any time by either party and even by the Court suo motu. The Supreme Court per Obaseki, JSC, settled this matter when it held: “The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the appeal Courts. This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction in the Court it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it, see Odiase V Agho (supra). There is no justice in exercising jurisdiction where there is none. It is injustice to the law, to the Court and to the parties so to do.” See also LADOJA V INEC (2007) 12

NWLR, PT 1047, 115 and ESANUBOR & ANOR V FAWEYA & ORS (2019) LPELR- 46961(SC). It can never therefore be too late in law to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect on judicial administration. Such issue can also be raised without leave of Court provided always that the other party is put on notice either by way of preliminary objection, by motion on notice or as a ground of appeal. The issue of jurisdiction is exempted from the restrictions which hamper other legal points from being raised for the first time on appeal. The submission of learned counsel to the respondent that the appellant was served with all the endorsed processes in 2010 but said nothing is of no moment as that cannot as that cannot be used to estop them from raising it now. The only unfortunate consideration is that raising it at this stage is no longer useful in saving valuable judicial time and cost expended in the trial should this Court pronounce the trial a nullity.

While I do not intend at this stage to box the Court into whether the issue of jurisdiction raised will be determined on issue (3) of the appellant or

Respondents’ issue (1) it is sufficient if I determine the issue of whether the Originating Process, the Writ of Summons admittedly dated and filed on the 07th October, 2010, was filed in compliance with the Osun State (Civil Procedure) Rules, 2008, especially, ORDER 6 (2) (3) thereof and Sections 2 and 24 of the Legal Practitioners Act, CAP L11, LFN, 2004 and therefore competent. In other words whether the Osun State High Court which heard and determined this matter now on appeal was properly clothed with jurisdiction to do so.

on the role of legal practitioners duly certified to practice in Nigeria. While I agree that this represents the law, the contention in this case is not whether MR Kehinde Adesiyan whose name appeared as counsel for the Plaintiffs/Respondents is a legal Practitioner within the meaning of the Act as opposed to Kehinde Adesiyan & Co who is not a human person capable of being enrolled as a barrister and solicitor in the Supreme Court. The crux of the matter in this case is whether MR Kehinde Adesiyan signed the Writ of Summons as obviously the Plaintiffs/Respondents had elected to sue through a legal practitioner. This may however become relevant when the half hearted submission of the Respondent’s counsel that the writ was signed at the top. I will deal with this issue later.
The learned counsel to the Respondents in his submission blew hot and cold a lot in his brief. At one point he seems to concede that the writ was not signed but the irregularity was cured by signing the accompanying statement of claim or by the amendment of the writ. This style of sitting on the fence as it were is novel in advocacy but perhaps that can be accommodated since

in law there are always grey areas; it’s never white or black. Assuming that I have made the right assumptions from counsel’s submissions that he conceded that the Originating Writ of Summons was not signed but only argued that the statement of claim endorsed thereon having been properly signed and the Writ of Summons amended by order of Court sought and granted on the 26th April, 2016, the defective or incompetent writ was no longer material before the Court, it still needs to be determined whether that original writ was competent.
The relevant writ in question is contained at pages 2-3 of the record. For the avoidance of doubt I reproduce part of this writ:
“This Writ issued by KEHINDE ADESIYAN ESQ OF KEHINDE ADESIYAN & CO. Whose address for service is …. Kehinde Adesiyan Esq. Kehinde Adesiyan & Co. 2, Olaore Shopping Complex, Opposite Christ African Church Pry, School, Gbongan Road, Osogbo.
agent of THE PLAINTIFF of SAME ADDRESS.”
I also reproduce the relevant portion of the amended Writ of Summons at pages 136-137 of the record.
“This Writ issued by KEHINDE ADESIYAN ESQ OF KEHINDE ADESIYAN &

CO
Whose address for service is ……
Signed
Kehinde Adesiyan Esq.
Kehinde Adesiyan & Co.
2, Olaore Shopping Complex,
Opposite Christ African Church
Pry School, Gbongan Road,
Osogbo.
Agent for THE PLAINTIFF
of SAME ADDRESS.”
A cursory look at the two processes confirm without a doubt that while the originating Writ of Summons was not signed by MR Kehinde Adesiyan, counsel to the respondents, the amended Writ of Summons was properly signed by him.
The Respondents’ counsel did not hold a contrary view in his various contentions under issue (1). I am therefore inclined to agree with the appellant’s counsel’s contention that the Originating Writ of Summons filed on the 7th October, 2010 was not signed by the respondents’ counsel.
The settled position of the law is that any initiating process not signed by the Legal Practitioner or by the Plaintiff if he sues in person is incompetent. Order 6(2)(3) of the Osun State High Court (Civil Procedure) Rules (supra) involves the procedural jurisdiction of the Court and the provisions are mandatory, not discretionary.

This means that non-compliance with it is not a mere irregularity. See SLB CONSORTIUM LTD V NNPC (2011) 9 NWLR, PT 1252, 317. Besides even if this provision of the Rules of Osun State High Court is held to be permissive, the failure of the legal practitioner to sign the process will still be caught up by Sections 2 and 24 of the Legal Practitioners Act (supra).
This is perhaps a good time to bring up the issue raised even if feebly by the respondents’ counsel that the writ was signed at the top of it. I have gone back to page 2 of the record to confirm this allegation. Curiously there’s a mark which could pass for a signature on the line where it is written: “This Writ issued by KEHINDE ADESIYAN ESQ of KEHINDE ADESIYAN & CO.” A cursory comparison confirms to me that this signature is not the same as that signed above counsel’s name at page 137. It may well not have been done by the same person. Assuming that I am misconceived in my judgment and it is indeed the signature of counsel, Kehinde Adesiyan, the mark is directly on top of Kehinde Adesiyan & Co and not above Kehinde Adesiyan Esq. If somebody was trying to be clever

by half by signing this, probably for counsel since I have said it looks distinctly different from counsel’s signature on the statement of claim, they are caught up by Sections 2 and 24 of Legal Practitioners Act (supra). The law is trite that where an Originating Process as in this case, the Writ of Summons is not signed by the litigating party where he sues in person or by the legal practitioner on his behalf, the process is rendered invalid and defective. This defect which is incurable ousts the jurisdiction of the Court: ENEBONG & ANOR V EDEM & ORS (2016) LPELR-41190 (CA); MADUKOLU V NKEMDILIM (1962) 2 SCNLR, 341; OKARIKA V SAMUEL (2013) 7 NWLR, PT 1352, 19; EFFIOM V ETENG (2018) LPELR-46130(CA); GTB PLC V TOYED NIGERIA LTD & ANOR (2016) LPELR-41481(CA); HON LUCKY ODILI V NIGERIA AGIP OIL COMPANY LTD (2018) LPELR-45165(CA) and BASSEY V PRUDENTIAL CO-OPERATIVE MICRO FINANCE BANK LTD (2018) LPELR-44338(CA).
The requirement of the Legal Practitioners Act is that generally, it is a legal practitioner called to the Nigerian Bar and whose name appears in the Roll of legal Practitioners, who may issue Court processes including originating

processes like the writ of summons. I have taken up counsel on his contention that if it is the mark over and above “Kehinde Adesiyan & Co” that he refers to as signature, was that a signature by a legal practitioner? There are a plethora of cases on who is a legal practitioner within the meaning of the Act. The locus classicus on this however is readily OKAFOR V NWEKE (2007) 10 NWLR, PT 1043, 521.
In that case, a motion on notice, a notice of cross appeal and applicant’s brief of argument in support of the said motion were all signed by and issued by the law firm of JHC OKOLO SAN & CO. In deciding the issue of a legal practitioner, the apex Court held: “Since both counsels (sic) agree that JHC OKOLO SAN & CO is not a legal practitioner recognized by the law, it follows that the said JHC OKOLO & CO cannot legally and/or file any process in the Courts and as such the motion on notice filed on the 19th December, 2005; notice of cross appeal and applicant brief of argument in support of the said motion all signed and issued by the firm known and called JHC OKOLO & CO are incompetent in law particularly as the said firm

is not a registered legal practitioner.” See also SLB CONSORTIUM V NNPC (SUPRA); OKPE V FAN MILK PLC & ANOR (2017) 2 NWLR, PT 1549, 282; EMEKA V CHUBA-IKPEAZU (2017) 15 NWLR, PT 1589, 345 and EMERAH & ANOR V OLADOSUN & ORS (2018) LPELR-46555(CA). The primary thread that runs through all these cases and similar others is that any originating process signed and issued under a law firm only as in this case, Kehinde Adesiyan & Co is incurably defective and any decision predicated thereon is a nullity. It is therefore irrelevant if that mark is adjudged to be a signature as clearly it is the signature of the firm.

As has been pointed out earlier in this judgment the defective Originating Writ of Summons had by leave of the trial Court been amended. The respondents’ counsel has argued that with the amendment of the Writ of Summons granted by the trial Court, the appellant should not be heard to complain about the incompetence of the amended processes as an amendment takes effect from the date of the Original Process which was amended as if the amendment had been inserted from the start. This position is further fortified according

to counsel as the subsequent statement of claim which was properly signed has superseded the defective writ. These arguments of counsel are clearly untenable as in law an incompetent process cannot be amended. The defect in the unsigned Writ of Summons goes to the root of the proceedings and renders same void ab initio. The Writ of Summons is the foundation of every subsequent process, be it amendment, statement of claim, etc.
It therefore has to be competent to sustain any subsequent amendment or process. To hold otherwise as contended by respondents’ counsel is an invitation to catastrophe; to put something on nothing will make it to surely crumble. See the case of SLB CONSORTIUM LTD V NNPC (SUPRA); UBN PLC V LAWAL (2011) LPELR-8879 (CA); IN RE: ACCESS BANK & ORS (2018) LPELR-45949.
Indeed Muntaka-Coomasie, JSC puts it very practically in the case of MINISTRY OF WORKS & TRANSPORT, ADAMAWA STATE V YAKUBU (2013) 6 NWLR PT 1351, 481 AT 496 PARAS C-E: “The questions that easily come to mind are that, can an incompetent originating process or processes be amended, or can the incompetence of the process be cured by an amendment?

…………. the entire suit was incompetent ab initio. It was dead at the point of filing………. The originating process is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment”
It follows from these authorities that the amendment to the Writ of Summons sought and granted by the trial Court on the 26th day of April, 2016 was an exercise in futility as the motion to amend the unsigned, incompetent and void Writ of Summons was a prayer to resuscitate a dead process which unfortunately the trial erroneously made. Barring any limitation law, the proper application by the respondents’ counsel ought to have been one withdrawing the Writ of Summons and having the same struck out if this had come to his attention at the trial Court. The Plaintiffs/Respondents could then have filed a properly endorsed Writ of Summons. That way this trial could have been avoided, saving ample judicial time and valuable resources for all concerned.
Having found that the Originating Writ of Summons in this case was incompetent and has therefore robbed the trial Court of jurisdiction

to either amend the defective writ or to indeed try the matter it follows that everything or every step taken by the trial Court subsequent thereto was void and a nullity in law. The learned trial judge acted in grave error as every step he took pursuant to the Original Writ of Summons filed on the 7th of October, 2010 was a futile and void act. The trial Court was not clothed with jurisdiction and I so find. Issue 3 as raised by the Appellant is therefore resolved in its favour.

Having resolved this issue in favour of the Appellant and having found that the Writ of Summons upon which the proceedings of the trial Court was hinged was a nullity and liable to be struck out and the proceedings set aside, it becomes for me an academic exercise to seek to resolve the other issues raised by the parties in this appeal. A Court should restrict its ample judicial time to determine live issues and not engage in futile academic exercise which produces no value to the litigants. An academic issue or question is one that does not relate to the lives issues in litigation because it is spent and it will not enure any right or benefit on the successful party:

AGBAKOBA V INEC & ORS (2008) 18 NWLR, PT 1119, 489; SALIK V IDRIS & ORS (2014) 15 NWLR, PT 1429, 36; AR SECURITY SOLUTION LTD V EFCC (2018) LPELR-43828 (SC); CPC V INEC (2011), 18 NWLR, PT 1279, 493 and IKUFORIJI V FRN (2018) LPELR-43884(SC).

I have found that the trial Court acted without jurisdiction. I hold that this conclusion from a single issue obviates the need of dissipating judicial time and energy on the other seven issues submitted for determination in this appeal by the Appellant. To do so will no doubt be a worthless exercise which will in no way serve the ends of justice. Since the trial Court acted without jurisdiction by predicating its proceedings and decision on an incompetent Writ of Summons, everything done by the trial lower Court was a nullity. Consequently suit No HOS/85/2010 of the High Court of Osun State sitting at Ejigbo is struck out for being incompetent.

I make no order as to costs in the circumstances of this case.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading the draft of the leading judgment in this appeal just rendered by my learned Brother, P. A. Mahmoud, JCA.

I am in agreement that the

appeal is meritorious for the reasons expantiated in the said leading judgment. Having acted without the requisite jurisdiction, the entire proceedings, of the trial Court which culminated in its decision the subject of this appeal, are concomitantly set aside.
I abide by the other consequential orders made in the leading judgment.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA who treated the issues raised in the Appeal judiciously and judicially.

I am in agreement with the reasoning and conclusion of the lead judgment with nothing different to add thereto.
I too found that the trial Court acted without jurisdiction and all that was done by it resulted to a nullity. Consequently, Suit No. HOS/85/2010 of the High Court of Osun State sitting in Ejigbo is struck out for being incompetent.

Parties to bear their costs.

Appearances:

MR W. Omisade For Appellant(s)

MR Kehinde Adesiyan For Respondent(s)