GUARANTY TRUST BANK PLC v. TOYED NIGERIA LIMITED & ANOR (2016)

GUARANTY TRUST BANK PLC v. TOYED NIGERIA LIMITED & ANOR

(2016)LCN/9223(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 21st day of December, 2016

CA/L/851/2013

RATIO

COURT: WHEN WILL A COURT BE COMPETENT
It has been said times without numbers that:
“a Court is competent only when the Court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other”.
The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the Court. It therefore means that where a Court has no jurisdiction to lead and determine a case but goes ahead to do so, it becomes an exercise of futility as the decision arrived at in such a case amounts in law to a nullity irrespectively of how well the proceedings were conducted. See Umanah v. Attah (2006) 17 NWLR (Pt. 1009) page 503, Madukolu v. Nkemdilim (1962) 1 All NLR 587, Skenconsult v. Ukey (1981) 1 SC page 6, Araka v. Ejeagwu (200) 12 SC (Pt. 1) page 99. PER UZO I. NDUKWE-ANYANWU, J.C.A.

JURISDICTION: ESSENCE OF JURISDICTION
The law is well settled and it no longer admits of any argument that jurisdiction is the very basis and the life wire of every matter and on which any Court tries or hears a case. It is, metaphorically speaking, the life blood of all trials, whether it be at the Court of trial or on appeal, and without which all such trials and hearings are a nullity notwithstanding how well or meticulous such a trial or proceeding had been conducted or how sound or profound the resultant judgment. It is simply a nullity. See Madukolu v. Nkemdilim (1962) 2 All NLR 581. See also Balogun v. Ohiwhere (2005) All FWLR (Pt. 281) 1724; Onuorah v. Kaduna PRC Ltd. (2005) All FWLR (Pt. 256) 1356; Okereke v. Yar’Adua (2008) All FWLR (Pt. 343) 636; Essien v. Essien (2010) All FWLR (Pt. 523) 1192; Petro Jessica Enterprises Ltd v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 693. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
PROCEDURE: JURISDICTION; AT WHAT TIME CAN THE ISSUE OF JURISDICTION BE RAISED AND EFFECT OF LACK OF JURISDICTION OF COURT ON PROCEEDINGS
The corollary to the above succinct position of the law is that the issue of jurisdiction, being a threshold issue, can be raised at any stage of the proceeding either by the parties or by the Court suo motu as was done by this Court in this Appeal. It could even be raised for the first time on appeal though it was not raised before the Court below. In the light of the all important place jurisdiction occupies in the hearing and determination of every matter placed before the Courts, once it is raised the Court is under a duty and indeed an obligation to consider it first and resolve it one way or the other. This is so because without jurisdiction, which is the life wire of any and every judicial process or proceedings, there can be no validity or competence of either the Court process or proceeding or the resultant decision of the Court. See Western Steel Works Ltd. v. Iron and Steel Workers Union (1989) 2 NSCC (vol. 17) 786 @ p.798.
“It is for the above reasons and many more germane reasons as can be seen in several decided cases as are replete in our law reports that the effect of lack of jurisdiction on the processes or proceedings and or decisions of Court is so grave and can be liken to a watchman who watches or the labourer who labours all in vain except the Almighty God watches or builds. Consequently, it would be safe to say that without jurisdiction the labourers, that is the parties and their counsel on the one hand and the Court on the other hand labour in vain. See Attorney General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

JUSTICES

UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

GUARANTY TRUST BANK PLC Appellant(s)

AND

1. TOYED NIGERIA LIMITED
2. MRS OLASUNMBO OSIDIPE Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Lagos State delivered on the 3rd of June, 2013 by Hon. Justice O. O. Oke.

By a further amended Writ of Summons together with a Statement of Claim, the Claimant now Appellant claimed against the 1st and 2nd Defendants now 1st and 2nd Respondents as follows:
“1.2.1. From the 1st and 2nd Defendants jointly and severally the sum of N5,044,636.03 (Five Million and Forty Four Thousand, Six Hundred and Thirty Six Naira, and Three Kobo) being the principal and accrued interest as at 28/2/07 and compound interest on the said sum at the rate of 29% per annum from 28/2/07, until judgment is delivered and the final liquidation of the judgment debt.
1.2.2. Against the 2nd Defendant only, a declaration that the claimant upon 1st Defendant’s default of the repayment of the loan facility and accrued interest is entitled to sell the property situate at Plot 3, Adisa Ogunwemimo Street, Idimu Road Agege, comprised in a Deed dated 6/11/75 and presently registered as No. 79 at page 79 in Volume 1531, of the

Land Registry, Lagos, now at Alausa and also comprised in a Deed registered as 05/95/1363 at the Land Registry, Alausa and
1.2.3. Against the 1st and 2nd Defendants, legal fees and cost of this recovery action in the sum of N500,000”

It was the case of the Appellant that the 1st Respondent is a customer of the Appellant bank and had by a resolution of its Board of Directors dated 2nd April, 1997 applied for two loan facilities from the Appellant as follows:
1. Bankers Acceptance facility in the sum of N2,000,000.00 and
2. Over draft facility in the sum of N1,000,000.00

In response, the Appellant issued a Letter of Offer dated 20th August, 1997 (Exhibit B) approving the two loans subject to the fulfillment of the following conditions for drawdown by the Respondent:
1. Acceptance of loan offer;
2. Board resolution of the 1st Respondent accepting the loan facility;
3. Deposit of title documents of the 2nd Respondent’s property situated at Plot 3, Adisa Ogunwemimo Street, Idimu Road, Agege supported by a duly executed memorandum of deposit and Power of Attorney;
4. Execution of a deed of personal guarantee of the

loan facilities by the 2nd Respondent;
5. Deposit of original share certificates for various quoted Companies duly verified and supported by a duly executed memorandum of deposit consent to sell and the blank share transfer forms;
6. Re-imbursement of legal cost and fees of recovering the loan facilities.

The offer was accepted by the Respondents and the necessary conditions for drawdown were fulfilled by the Respondent including the execution of an overdraft facility agreement dated 20th August, 1997 (Exhibit R). The 1st Respondent however defaulted in the repayment of the loan facility. The Appellant then facilitated a stock broking house to sell the shares of the 2nd Respondent in its custody but the proceeds of the shares was insufficient to liquidate the loan facility with interest and the Appellant called the Respondents to pay the outstanding balance which was refused by the Respondents. Hence the Appellant commenced this action at the lower Court.

In response, the Respondents filed a further amended Statement of Defence and Counter claimed wherein the claimed as follows:

“1.3.1. A declaration that the rate of interest

charged by the Claimant in respect of the aforesaid transaction was excessive.
1.3.2. A declaration that the Claimant was not entitled to continue to charge interests on the 1st Defendant’s account from 2nd November, 1998 when it started to call in the loan facilities;
1.3.3. A declaration that the Claimant was negligent and/or fraudulent in the management of the 1st Defendant’s accounts;
1.3.4. A declaration that the Defendants are no longer indebted or liable to the Claimant on account of the aforesaid transaction, the debt having been satisfied by the disposal of the said Late Mr. Osidipe’s shares;
1.3.5. An order that the Claimant do release to the Defendants forthwith the original tide documents of the said Late Mr. Osidipe’s property situate, lying and being at 7, Adisa Ogunwemimo Street, Akowonjo, Lagos State and registered as No. 79 at Page 79 in Volume 15341 of the Lands Registry in the office at Lagos (now (Alausa);
1.3.6. The sum of N3,961,832.00 (Three Million, Nine Hundred and Sixty One Thousand, Eight Hundred and Thirty Two Naira only) being the value of the said Late Mr. Osidipe’s shares deposited with the Claimant and

compound interest on the sum at, the rate of 25% per annum from 2nd November, 1998 until judgment and thereafter at the rate of 21% per annum until final liquidation of the judgment debt.
1.3.7. Such further and/or other order(s) as may be just.”

It was the case of the Respondents that they are not indebted to the Appellant as the proceeds from the sale of the shares were enough to offset the debt owed by the 1st Respondent. They also alleged fraud and negligence on the part of the Appellant in the event the proceeds of the shares were found insufficient to repay the loan facility. They also contended that the agreed rate of interest was 23% per annum by the parties and the Appellant’s argument that 23% is compound interest is untenable as there was an express agreement as to the rate of interest. He referred to Exhibit B (the letter of offer). He also contended that the Appellant could not charge any interest rate after the loan facility had been called in.

At the trial the Appellant called one witness (CW1) and tendered 9 documentary exhibits while the Respondents also called one witness (DW1) and tendered 8 documentary

exhibits.

After trial and addresses of counsel to both parties, the trial judge, in its Judgment dismissed the Claim of the Appellant and granted part of the counter-claim of the Respondent as follows:
“1. A Declaration that the Claimant was not entitled to continue to charge interest on the 1st Defendant’s account from 2nd November, 1998 when it started to call in the loan facilities.
2. A Declaration that the Claimant was negligent in the management of the 1st Defendant’s account.
3. A Declaration that the Defendants are no longer indebted or liable to the Claimant on account of the aforesaid transaction, the debt having been satisfied by the disposal of the said late Mr. Osidipe’s shares.
4. An Order that the Claimant do release to the Defendant forthwith the original title documents of the late Mr. Osidipe’s property situate, lying and being at 7 Adisa Ogunwemimo Street, Akowonjo, Lagos State and registered as No. 79 at page 79 in Volume 1531 of the Lands Registry in the office at Lagos (now Alausa)
5. I award cost of N250,000,00 in favour of the Defendant as cost of this action.”

?Dissatisfied with the said

judgment, the Appellants filed a Notice of Appeal consisting of seven (7) grounds of appeal. The Appellant filed its brief of argument on the 12th November, 2013 and distilled four (4) issues for determination as follows:
“ISSUE NO. 1
Whether the trial Court came to a correct decision that the interest payable on the loan facility granted the 1st Respondent was simple interest over a period of one year only? Distilled from Ground 1 of the Notice of Appeal.
ISSUE NO. 2
Whether or not the failure of the learned trial Judge to evaluate Exhibit R as it relates to the bargain of the Appellant and the 1st Respondent did not lead to the erroneous finding that the Respondents were not indebted to the Appellant? Distilled from Grounds 2 and 3 of the Notice of Appeal.
ISSUE NO. 3
Whether the Respondents established their counterclaim against the Appellant? Distilled from Grounds 4, 5 and 6 of the Notice of Appeal.
ISSUE NO. 4
Whether or not the cost awarded was not punitive and excessive? Distilled from Ground 7 of the Notice of Appeal.

?No brief was filed by the Respondents.

?ISSUE 1
Counsel submitted

that the learned trial judge was wrong in holding that the interest payable on the loan facility was simple interest and only for the period of the loan facility i.e. 1 year. It is the contention of counsel that Exhibit R (Overdraft Facility Agreement) which clearly references Exhibit B in its recital clause was not only limited to the overdraft facility of N1 million but also extended to the Bankers Acceptance Facility of N2 million. Thus where Exhibit B is silent on the applicable interest rate, Exhibit R will apply. He contended that by the provision of Clause 7.3 and 8 of Exhibit R, it was agreed that compound interest would be chargeable on the loan facility until the debt is repaid. Counsel also refer this Court to Exhibit D (Deed of Guarantee and Indemnity executed by the 2nd Respondent) to establish the fact that parties agreed that compound interest was chargeable on the loan facility until it is repaid.

?ISSUE 2
Counsel submitted that the Court is duty bound to determine the case of the parties based on their bargain. According to counsel, the bargain in this case is contained in Exhibit B and R being the letter of offer and the overdraft

facility agreement respectively. He contended that the learned trial judge ought to have read the two exhibits together. Had this been done the learned trial judge would have realized that the agreed interest between the parties is a compound interest as stipulated in clause 8 of Exhibit R and this represents the bargain between the parties. According to counsel this fact is further acknowledged by the 1st respondent in a letter dated 4th December, 2003 Exhibit O Paragraph 10 wherein the 1st Respondent noted that the loan was attracting compound interest. He also noted that the Respondent had never objected to the compound interest entries in its Statement of account which had always been made available to the Respondents. He referred to Exhibit H and G-G1 which the Respondents acknowledged receipt of in Exhibit L.

Furthermore counsel contended that the trial judge merely made a finding as to the extent of the indebtedness of the Respondents but did not make any finding as to whether the indebtedness was discharged. Counsel contended that the trial judge made a finding as to the value of the securities for the loan when the agreement was entered but

did not make any finding as to how much the securities was sold for notwithstanding that there was evidence before the Court as to the actual amount realized from the sale of the security. Counsel contended that once a loan is admitted the duty of proving the loan has been discharged lies on the debtor, which in this case the Respondents has failed to discharged the burden. Thus the trial judge has failed to properly evaluate the evidence before the Court thereby occasioning substantial miscarriage of justice.

?ISSUE 3
It is the contention of counsel that the Respondent did not establish or prove its counter-claim against the Appellant. He contended that the only witness who testified for the Respondent (DW1) was neither an employee of the Respondent’s Company nor was he part of the transaction, therefore the oral evidence given by DW1 was inadmissible hearsay and all the documents tendered by him are equally inadmissible documentary hearsay. Thus there was no evidence in support of the Respondent’s Counter-claim. Counsel also contended that there was no evidence produced in support of the particulars of negligence pleaded in the

counter-claim.

Counsel contended in the alternative that the trial Court’s finding of negligence against the Appellant was not based on the pleading before the Court and should be set aside.

Furthermore, counsel contended that some of the trial Court’s finding of negligence against the Appellant was in respect of acts of the stockbrokers which cannot be attributed to the Appellant as the stockbrokers were agents of the 2nd Respondent and not the Appellant having been nominated by the Respondents. He referred to Exhibit M which established clearly that it was the 1st respondent who nominated the Nigerian Stockbrokers Limited to act as stockbroker for the sale of Delta Glass Plc shares and also it was the 2nd Respondent who signed forms pre-authorizing the sale of his other shares by a stockbroker, Security Swaps.

Finally, counsel contended that failure to prove damages was fatal to the case of the Respondents. Thus the trial judge was therefore wrong in holding the Appellant liable in negligence. Counsel urged this Court to resolve this issue in his favour.

ISSUE 4

Counsel submitted that although the award of cost is at the

discretion of the trial Court, such discretion should be exercised judicially and judiciously. Counsel contended that the cost awarded by the trial Court is excessive and punitive given that the Appellant did not cause the delay of hearing, the out of pocket expenses were not more than N10,000 the number of appearance was less than 35 and there was no claim or representation for cost by the Respondent. Counsel urges this Court to set aside the award of cost. On 1st August 2016, this Court suo motu raised the issue of the competence of the writ of summons and statement of claim and directed the parties to address it.

These additional briefs were filed pursuant to the order of the Court directing parties to address the Court on the competency of the writ of summons and statement of claim.

In addressing the issue, the Appellant filed its written address on 12th July, 2016. In the address, learned counsel for the Appellant argued that by the authority of Madukolu v. Nkemdilim, one of the grounds upon which a suit will be incompetent is when the originating process failed to comply with the rules of Court. It is the contention of counsel that by the

combined reading of Order 1 Rule 1(3) and Order 3 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004, the originating process is the writ of summon and not the Statement of claim and Defence to counterclaim. He contended that the writ of summon (the originating process) in this case was duly signed by a named legal practitioner, one Mr. Wale Elegbeleye in accordance with Order 4 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 2004.He urged this Court to take judicial notice of the fact that the signature that is on the writ signed by Mr. Wale Elegbeleye is the same as those in the accompanying process (i.e. Statement of Claim and Defence to Counter-claim) thereby satisfying the provision of Order 15 Rule 2 of the High Court of Lagos state (Civil procedure) Rules 2004.

Counsel further argued that the case of OKAFOR v. NWEKE (2007) 10 NWLR (Pt. 1043) 521 and SLB CONSORTIUM LTD v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317 do not apply in this case as:
1. The originating process in the 2 cases i.e. Originating motion and Originating summons respectively did not contain the name of the legal practitioner while in the

instant case the name, signature of the legal practitioner was clearly stated in the writ of summon.
2. In the 2 cases there was no evidence as to the person the signature belonged to while in the instant case there was sufficient evidence that the signature in the Statement of claim and Defence to counter-claim belonged to Mr. Wale Elegbeleye, a legal practitioner.

He thus urged this Court to resolve this issue in favour of the Appellant. In the event that this Court should find otherwise, counsel submitted that the Counter-claim dated 10th March 2005 be struck out as same was not signed by a legal practitioner and the judgment predicated on the said counter-claim be set aside accordingly. He referred to issue 2 and 3.

In response, the Respondents filed their written address on 15th July, 2016. Learned counsel for the Respondent submitted that contrary to the Appellant’s submission, the originating processes included the Writ of Summons, the Statement of Claim and Defence to counterclaim. He also contended that all are incompetent. He contended that while the writ of summons was signed by one Mr. Wale Elegbeleye who was described as an

agent and not a legal practitioner, the Statement of claim and Defence to Counter-claim were signed by “Oluyomi Olawore & Co”. He relied on the provisions of Order 3 Rule 2(1) and (2) and Order 15 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004, Sections 2 and 24 of the Legal Practitioners Act and the case of OKAFOR v. NWEKE (2007) 10 NWLR (Pt. 1043) 521; SLB CONSORTIUM LTD v. NNPC (2011) 9 NWLR (Pt. 1252) 317.

He also submitted that such incompetency cannot be cured by an amendment. He relied on the case of MOHAMMED v. MARTINS ELECTRONICS CO. LTD (2010) 2 NWLR (Pt. 1179) 473; DADA v. DOSUNMU (2006) 16 NWLR (Pt. 1010) 134; OKETADE v. ADEWUNMI (2010) 8 NWLR (Pt. 1195) 63.

He thus urged this Court to strike out this appeal as the originating process is incurably bad thereby robbing the Court of its jurisdiction.
RESOLUTION
The Courts have in many cases ruled on the seriousness of jurisdiction to adjudicate on any matter coming before it. The issue of who signs Originating Processes in a suit affects the jurisdiction of the Court one way or the other. The Originating Process i.e. Writ of Summons, Statement of

Claim and the reply to Statement of Defence are to be signed by a person known to law.

It has been said times without numbers that:
“a Court is competent only when the Court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other”.
The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the Court. It therefore means that where a Court has no jurisdiction to lead and determine a case but goes ahead to do so, it becomes an exercise of futility as the decision arrived at in such a case amounts in law to a nullity irrespectively of how well the proceedings were conducted. See Umanah v. Attah (2006) 17 NWLR (Pt. 1009) page 503, Madukolu v. Nkemdilim (1962) 1 All NLR 587, Skenconsult v. Ukey (1981) 1 SC page 6, Araka v. Ejeagwu

(200) 12 SC (Pt. 1) page 99.

In this appeal, the Court was unclear who signed the Original Processes in the suit in the Court below. Hence, the Court suo motu requested counsel to address the Court on this issue solely. The Writ of Summons was taken out by an “agent for the claimant” of Oluyomi Olawore & Co.
It is not clear whether, the so called agent is a legal practitioner recognised by law.

The rule with regards to the signing of initiating process such as the writ of Summons and the Statement of Claim as in the current circumstances is that they are to be signed by a legal practitioner recognised by law or a person entitled to practice as a Barrister and Solicitor either generally or for the purpose of any particular office or proceeding. The principle is captured in Section 2(1) and Section 24 L.P.A. See Fadeyi v. Owolabi (2014) LPELR-22474; Nweke v. Okafor (2007) 10 NWLR (Pt. 1043) page 521; Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) page 68; SLB Consortium Ltd. v. N.N.P.C. (2011) 9 NWLR (Pt. 1252 page 317; Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt. 1346) page 1; F.B.N. Plc v. Maiwada & Ors (2015) 5 NWLR (Pt. 1348) page

444; Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) page 570.

The Courts have held that it is the claim of the plaintiff as endorsed on the Writ of Summons and elaborated in the Statement of Claim or any other Originating Process that determines the jurisdiction of the Court. See Elelu-Habeeb v. AGF (2012) 13 NWLR (Pt. 1318) page 423. Where, the claimant who is a biological person fails to sign, a legal practitioner recognised by law may sign on his behalf. In the present appeal, a person said to be the agent of the claimant signed the Writ. It is not indicated whether this so called agent is a legal practitioner recognised by law.

On a closer look at the Statement of Claim, the signature is that of “Oluyomi Olawore & Co.” This is not a biological person and definitely not a legal practitioner known to law. See Section 2(1) and Section 24 Legal Practitioner’s Act.

The error of omitting to state the name of the legal practitioner who signed an Originating Process was fatal to the suit in the lower Court. There can therefore be no argument as to the fact that a Law firm is not qualified to be a legal practitioner as envisaged by

law.
The present position of the law as established by a long list of Supreme Court decisions is that such a process signed by someone unknown to law is a nullity. It is void ab initio. The Statement of Claim signed by a law firm cannot sustain a cause of action neither can a writ of Summons signed by an “agent” to the claimant sustain this cause of action.

The Originating Process i.e. writ of summons signed by an agent to the claimant and the Statement of Claim signed by a law firm cannot sustain this suit. This error robs the Court of the jurisdiction to hear this appeal.

This appeal is incompetent as the Court lacks the jurisdiction to hear it. The judgment delivered in the lower Court based on an incompetent originating Processes is hereby set aside. The judgment on counter-claim is also set aside.

I make no order as to cost. Each party is to bear its own cost.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My lords, going by the issue raised suo motu by this Court it appears to me that it raises the issue of lack of jurisdiction against the Court below in hearing and determining the Claims of the

Appellant as Claimant before it. The law is well settled and it no longer admits of any argument that jurisdiction is the very basis and the life wire of every matter and on which any Court tries or hears a case. It is, metaphorically speaking, the life blood of all trials, whether it be at the Court of trial or on appeal, and without which all such trials and hearings are a nullity notwithstanding how well or meticulous such a trial or proceeding had been conducted or how sound or profound the resultant judgment. It is simply a nullity. See Madukolu v. Nkemdilim (1962) 2 All NLR 581. See also Balogun v. Ohiwhere (2005) All FWLR (Pt. 281) 1724; Onuorah v. Kaduna PRC Ltd. (2005) All FWLR (Pt. 256) 1356; Okereke v. Yar’Adua (2008) All FWLR (Pt. 343) 636; Essien v. Essien (2010) All FWLR (Pt. 523) 1192; Petro Jessica Enterprises Ltd v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 693.

The corollary to the above succinct position of the law is that the issue of jurisdiction, being a threshold issue, can be raised at any stage of the proceeding either by the parties or by the Court suo motu as was done by this Court in this Appeal. It could even be

raised for the first time on appeal though it was not raised before the Court below. In the light of the all important place jurisdiction occupies in the hearing and determination of every matter placed before the Courts, once it is raised the Court is under a duty and indeed an obligation to consider it first and resolve it one way or the other. This is so because without jurisdiction, which is the life wire of any and every judicial process or proceedings, there can be no validity or competence of either the Court process or proceeding or the resultant decision of the Court. See Western Steel Works Ltd. v. Iron and Steel Workers Union (1989) 2 NSCC (vol. 17) 786 @ p.798.
?It is for the above reasons and many more germane reasons as can be seen in several decided cases as are replete in our law reports that the effect of lack of jurisdiction on the processes or proceedings and or decisions of Court is so grave and can be liken to a watchman who watches or the labourer who labours all in vain except the Almighty God watches or builds. Consequently, it would be safe to say that without jurisdiction the labourers, that is the parties and their counsel on

the one hand and the Court on the other hand labour in vain. See Attorney General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552.
In law, therefore, where a Court finds that it has no jurisdiction and that the proceedings are a nullity that is where the matter ends and no amount of sentiment or substantial justice or indeed over zealousness can dictate otherwise, since one cannot put something on nothing and expect it to stand. See Macfoy v. U.A.C. Ltd (1962) AC 152 @ p.160. See also Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688; Barclays Bank of Nigeria v. C.B.N. (1976) 1 All NLR (Pt. 1) 6; Attorney General of Lagos State v. Dosunmu (supra) @ p. 552.

In the lead judgment just delivered by my Lord UZO IFEYINWA NDUKWE-ANYANWA JCA, a draft of which was afforded me in advance for my preview and with which I am in complete agreement with both the reasons and conclusions reached therein, this crucial issue of the competence of the origination process, that is the writ of summons filed by the Appellant and signed by one “Wale Elegbeleye” as an “Agent for the Claimant”, who was neither shown to be the

claimant nor a “Legal Practitioner” coupled with the Statement of Claim signed in the name of “Oluyomi Olawore & Co”, also not shown to be on the Roll of Legal Practitioners” are both invalid and that in my view is the end of the matter.

My lords, in law therefore, the Appellant’s originating process, its Writ of Summons having not been properly signed as required by law and the Statement of Claim, which is also a Court process required by law to be properly signed, having not being properly signed as required by law by any named Legal Practitioner, whose name is on the Roll of Legal practitioners in the Supreme Court as prescribed by the provisions of Sections 2(1) & 24 of the Legal Practitioners Act, are both incompetent and thus invalid. No more, no less! It is my view that no amount of grammar or logical deductions can change that fact. It is as immutable as the old laws of Persia which once promulgated and proclaimed cannot be changed. Happily, in Nigeria, these positions of the law can only be changed by the Supreme Court by reason of the apex position it occupies in the Nigerian Judicial hierarchy. See Nweke v. Okafor (2007) 10 NWLR (Pt.

1043) 521. See also SLB Consortium Ltd v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317; Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt. 1346) 1; F.B.N. Plc v Maiwada & Ors (2015) 5 NWLR (Pt. 1348) 444; Alawiye v. Ogunsanya (2012) Vol. 52 NSCQR (Pt. 1) 186 @ p. 230.
The suit before the Court below was commenced by means of a Writ of Summons, which in my view was thus the only originating process and which must be valid and competent to confer life on both the proceedings and judgment of the Court below as well as on this appeal. Consequently, where the writ of summons, as it has it has been found or turns out to be was invalid and incompetent it is the end of the matter. It is incurably bad and thus good for nothing or anything worthwhile the precious time of the Court to be considered on the merit.
In Okarika v. Samuel (2013) vol. 53 NSCQR (Pt. 1) 220 @ p. 238, the Supreme Court pronounced with finality inter alia thus:
“It is thus the law that an initiating process whether writ of summons, originating summons or a notice of appeal must be valid to confer jurisdiction on a Court to adjudicate between parties on a subject matter in dispute

between them. Thus a notice of appeal not signed by an appellant or his counsel is invalid as there is no stamp of authority or authentication”
So it is with the Appellant’s Writ of Summons, the originating process, as well as the Appellant’s Statement of Claim both having not been properly signed are thus invalid void and incompetent and can be liken to a tale told by an idiot full of sound and fury signifying nothing absolutely nothing worth anything. See Macfoy v. U.A.C. Ltd (supra) @ p. 160.

In law, originating process whether be it by way of commencing a suit or initiating an appeal, once found to be incompetent the resultant consequences are the same. It simply robs the trial Court or the appellate Court as the case may be of its jurisdiction. This is so because in law a Court is competent only and only when all conditions precedent to the exercise of its jurisdiction has been fulfilled and never before then. See Madukolu v. Nkemdilim (supra) @ p. 581. See also Okarika v. Samuel (supra) @ p. 238; Shelim v. Gobang (2009) Vol. 173 LRCN 36 @ p. 42.
In Macfoy v. U.A.C. Ltd. (supra) @ p.160; the immortal words of that erudite law lord,

Lord Denning springs forth thus:
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of Court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have an order declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

It is the light of the above few words of mine and for the fuller reasons contained in the lead judgment that I too hold that since the Appellant’s Writ of Summons was incompetent, the judgment of the Court below founded on it was also a nullity. Consequently, this appeal itself founded on the invalid judgment of the Court below is equally incompetent and is stuck out and the Appellant’s Writ of Summons is also hereby struck out for being incompetent. I shall abide by the order as to no cost made in the lead judgment.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: It is hornbook law that it is only a legal practitioner qualified to practice law in Nigeria that can issue

Court processes by virtue of the provisions of Sections 2 (1) and 24 of the Legal Practitioners’ Act. This legal position has been settled since the decision in OKAFOR v. NWEKE (2007) 10 NWLR (Pt. 1043) 521 where it was held that for a person to be qualified to practice as a legal practitioner, he must have his name on the Roll of Legal Practitioners and that what the law provides for is that it is the name of the legal practitioner that is on the Roll and not his signature. In the circumstances of the OKAFOR v. NWEKE case the process issued in the name of J.H.C. Okolo, SAN & Co. was set aside for being incompetent since J.H.C. Okolo, SAN & Co, was not a name on the Roll of Legal Practitioners. The decision in OKAFOR v. NWEKE was followed by the Supreme Court in OGUNDELE v. AGIRI (2009) 18 NWLR (Pt. 1173) 219 at 246-247 where a process issued in the home of Ajibola & Co. was held to be incompetent. Also in OKETADE v. ADEWUNMI (2010) 8 NWLR (Pt. 1195) 63 at 73H-75H, a process issued in the name of Olujinmi & Akeredolu was held to be incompetent. Furthermore, in SLB CONSORTIUM v. NNPC (2011) ALL FWLR (Pt. 583) 1902 the Supreme Court set aside a

process issued in the name of Adewale Adesokan & Co. This Court in several of its decisions has followed the reasoning in the case of OKAFOR v. NWEKE. In one such decision in NEW NIGERIAN BANK Plc v. DENCLAG LTD (2005) 4 NWLR (Pt. 916) 549, a process issued in the name of Ibrahim Hamman & Co. was set aside. See also NWANI v. BAKARI Appeal No. CA/J/241/2001 (unreported) delivered on 9th December 2004 and UNITY BANK PLC v. OLUWAFEMI (2007) ALL FWLR (Pt. 382) 1923. The attempt to get the Supreme Court to revisit and overrule the decision in OKAFOR v. NWEKE which presented itself in the cases of FIRST BANK NIG. PLC v. MAIWADA and FRANPHINO PHARMACEUTICAL LTD v. JAWA INTERNATIONAL LTD (2012) LPELR-9713 (SC) was unsuccessful as the full Court of the Supreme Court affirmed and maintained the legal position enunciated in OKAFOR v. NWEKE by holding that processes issued in the names of David M. Mando & Co. and O. E. Abang & Co. were incompetent.

In the light of this settled state of the law, the processes taken out in this matter in the firm name of Oluyomi Olawore & Co., a name which is not on the Roll of Legal Practitioners are incurably

defective and are therefore liable to be struck out. It is for this reason and the more insightful reasoning and conclusion in the leading judgment of my learned brother, Uzo I. Ndukwe-Anyanwu, JCA, which I was privileged to read in draft that I avow my concurrence that the Court does not have jurisdiction to entertain the matter. I abide by the consequential orders made in the leading judgment, inclusive of the order as to costs.

Appearances

Olayinka AbimbolaFor Appellant

AND

Babatunde OyendeFor Respondent