GWANDU v. EFCC & ORS
(2022)LCN/16769(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Monday, July 25, 2022
CA/K/78/C/2018
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
SANI GWANDU APPELANT(S)
And
1. ECONOMIC AND FINANCIAL CRIMES COMMISSION 2. ATTORNEY-GENERAL OF KADUNA STATE 3. NIGERIA PRISON SERVICE 4. COMPTROLLER GENERAL OF PRISON RESPONDENT(S)
RATIO
WHETHER OR NOT ORIGINATING PROCESSES NOT SIGNED BY A LEGAL PRACTITIONER IS DEFECTIVE AND INCOMPETENT
The apex Court and this Court have severally interpreted the provision to have the same meaning and effect of mandatoriness notwithstanding any other saving provision in the Rule of Court like Order 51 (1) Fed. High Court Rules cited by the 1st Respondent counsel. See ABUBAKAR V. NASAMU (NO. 1) (2012) 17 NWLR (Pt. 1330) 407. See ADEOSUN V. GOVERNOR EKITI STATE (2012) 4 NWLR (Pt. 1291) 581, AGBITI NIG. V. ARMY NAVY (2011) 4 NWLR (Pt. 1236) 175, AREGBESOLA V. OYINLOLA (SUPRA), SAMI V. APC & ORS (2019) LPELR-4845 (CA).
A survey of case law on this issue including the afore cited decisions, in an unbroken long chain of cases from the locus classicus of OKAFOR V. NWEKE (2007) 10 NWLR (Pt. 1043) 521, through to S.L.B. CONSORTIUM LTD V. NNPC (SUPRA), F.B.N. PLC V. MAIWADA (2013) 5 NWLR (Pt. 1348) 444, 456 where the apex Court declined an invitation to depart from OKAFOR v. NWEKE (SUPRA) to the more recent cases like OKPE V. FAN MILK PLC & ANOR (2017) 2 NWLR (Pt. 1549) 282, B.P.S. CONST. & ENGR. LTD. V. FCDA (2017) 10 NWLR (Pt. 1572) 1 and HERITAGE BANK LTD V. BENTWORTH FINANCE (NIG) LTD, and TITILAYO INDUSTRIES LTD V. FAGBOLA (supra), the apex Court has firmly stood its ground that an Originating process which is required by the Rule of Court to be but is not signed by a legal Practitioner or the party is incurably defective and incompetent. Indeed only recently, in 2019 in the case of the TITILAYO PLASTIC INDUSTRIES LTD & ORS V. FAGBOLA (supra), the apex Court in affixing its stamp of authority, endorsed the decision of this on the mandatory nature of the said Rule of Court and its attendant consequence of non-compliance. PER WAMBAI, J.CA.
THE EFFECT OF INITIATING AN ACTION WITH AN UNSIGNED WRIT OF SUMMONS
The effect of initiating an action with an unsigned writ of summons was considered by the Apex Court in OMEGA BANK NIG. PLC v. OBC LTD (2005) ALL FWLR (Pt. 249) 1964 at 193 where the Court held:
A document which is not signed does not have any efficacy in law. As held in cases examined, the document is worthless and a worthless document cannot be efficacious. …Thus, failure to initiate the action with a valid writ of summons is a fundamental infraction, bothering on the jurisdiction of the Court to adjudicate over the matter. PER WAMBAI, J.CA.
THE POSITION OF LAW ON WHEN A COURT IS SAID TO HAVE JURISDICTION ON A MATTER
A Court of law is invested with jurisdiction to hear a matter when: 1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. 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 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu V. Nkemdilim (supra), Saraki V. FRN (2016) 3 NWLR (Pt. 1500) 531; All these three must be present for the Court to be vested with jurisdiction. PER WAMBAI, J.CA.
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): The Appellant, Sani Gwandu, was convicted on the 5/11/2013 in charge no. FHC/KD/CS/151/2016 by Hon. Justice Emeka Nwite of the Federal High Court sitting in Kaduna for the offences of conspiracy to obtain money by false pretence and obtaining the sum of thirteen million five hundred and forty thousand naira only (N13,540,000.00) and sentenced to seven (7) years imprisonment. The Appellant was aggrieved by the decision and appealed to this Court vide appeal no. CA/K/487/2013. The appeal was dismissed on 22/9/2014. He has further appealed to the Supreme Court.
Meanwhile, after serving one year and three months of the seven years term of imprisonment, the then Executive Governor of Kaduna State Muktar Ramalan Yero on the 15/01/2015 acting on the recommendation of the state Advisory Council of prerogative of mercy granted the Appellant pardon, appellant having being diagnosed with chronic renal failure.
Upon being aware of the Appellant’s release from prison, the first Respondent who was aggrieved by the Appellant’s premature release believing that it was ultra vires the power of the Governor of Kaduna State, took out an Originating Summons filed on the 3/10/2017 and sought the interpretation of the following questions:
1. “WHETHER under Section 212 of the 1999 Constitution of the Federal Republic of Nigeria the Governor of a State can grant pardon to a person convicted under a Federal enactment to wit: Advance Fee Fraud and other Fraud related offences, Act 2006.”
2. “WHETHER the grant of pardon by the Executive Governor of Kaduna State to the 4th Defendant, prosecuted by an agency of the Federal Government and convicted on 5th November, 2013 under the Advance Fee Fraud and other Fraud related offences Act, 2006 is in accordance with Sections 175 and 212 of the 1999 Constitution of the Federal Republic of Nigeria.”
Should the questions be affirmatively answered, the 1st Respondent sought the following reliefs, to wit;
1. “A DECLARATION that only the President of the Federal Republic of Nigeria has the power to grant pardon to a person convicted under a Federal enactment under the 1999 Constitution.”
2. “A DECLARATION that the powers of the Governor of Kaduna State, Mukhtar Ramalan Yero (as he then was) did not extend to the release of a person convicted under the Advance Fee Fraud and other Fraud Related Offences Act, 2006, being a Federal Legislation.”
3. “A DECLARATION that the release of the convict, Sani Gwandu on the 15th day of January, 2015 by the 2nd and 3rd Defendants from prison custody is unconstitutional and therefore null and void.”
4. “AN ORDER for the immediate return of the convict to prison custody to complete the remainder of his prison term.” [See pages 2-4 of the Record].”
The amended Originating Summons was accompanied by an affidavit of 3 paragraphs and 3 annextures marked exhibits EFCC 1-3 and Counsels written address.
In opposition, the Appellant filed a 7 paragraphs counter – affidavit, with 3 annexures marked Exhibits SGA, SGB and SGC, together with learned Senior Counsel’s written address.
Similarly, the 3rd and 4th Respondents filed a joint counter-affidavit of 5 paragraphs to which were annexed 2 annextures marked Exhibits 1 and2.
The 1st Respondent orally replied to the Appellant’s processes.
After considering the affidavits and the written addresses, the learned trial judge entered judgment for the 1st Respondent and granted all it’s reliefs.
Consequently, the Appellant was ordered to be returned immediately to the prison to complete the reminder of his prison term.
Upset by the judgment, the Appellant through his Counsel Tajudeen O. Oladoja, SAN, has appealed the decision to this Court vide his Notice of appeal filed on the 18/12/2017 on two grounds. He was granted leave on 14/5/18 to amend the Notice of appeal. The amended Notice of appeal contains 5 grounds of appeal.
The learned SAN, Oladoja, for the Appellant distilled two issues for determination, namely:-
1. WHETHER the Court below was vested with the requisite jurisdiction to adjudicate over a case initiated by an Amended Originating Summons which was not signed by a known and identifiable legal practitioner. (Distilled from Ground 1 of the Amended Notice of Appeal).
2. WHETHER the 1st Respondent had locus standi to institute the Originating Summons, to contend that the act of the Governor of Kaduna State is ultra vires Section 175 of the 1999 Constitution [as amended]. (Distilled from Ground 2 of the Amended Notice of Appeal).
On his part, the 1st Respondent, the only Respondent who filed a brief of argument in the appeal, also formulated two issues, essentially the same with the Appellant’s issues, in these terms: –
1. Whether the signing of the Amended Originating Summons by the Presiding Judge instead of the 1st Respondent’s Counsel was sufficient to render it invalid and therefore vitiated the jurisdiction of the Court below to determine the suit. (Distilled from Ground 1 of the Amended Notice of Appeal).
2. Whether the 1st Respondent lacked the locus standi to institute the action that gave rise to this appeal. (Distilled from Ground 2 of the Amended Notice of Appeal).
I will utilize the issues as crafted by the learned silk for the Appellant in the determination of this appeal.
ISSUE NO. 1
WHETHER the Court below was vested with the requisite jurisdiction to adjudicate over a case initiated by an Amended Originating Summons which was not signed by a known and identifiable legal practitioner. (Distilled from Ground 1 of the Amended Notice of Appeal).
APPELLANT’S SUBMISSION
It is the contention of the learned Oladoja, SAN, for the Appellant that the amended Originating Summons which was not signed by either the legal practitioner or the 1st Respondent personally but by the Hon. Judge of the lower Court contravenes the mandatory provision of Order 3 Rule 12(3) of the Federal High Court (Civil procedure) Rules, 2009 and is grossly incompetent and invalid citing the cases of OKARIKA V. SAMUEL (2013) Vol. 53 NSCQR (Pt. 1) 220 at p. 23, AREGBESOLA V. OYINLOLA (2011) Vol. 9 EPR 1 at p. 133, OGUDU V. THE STATE (2011) Vol. 48 NSCQR (Pt. 1) 377 at p. 409, ALAWIYE V. OGUNSANYA (2012) Vol. 52 NSCQR (Pt. 1) 186 at p. 230, SHELIM V. GOBANG (2009) Vol. 39 NSCQR 175 at p. 195, SOCIETE GENERALE BANK V. ADEWUNMI (2003) Vol. 14 NSCQR (Pt. 1) 119 at p. 133, MACFOY V. UAC LTD. (1962) 152 at p. 160.
The unsigned amended Originating Summons, he argued, cannot generate or initiate an action and is incapable of being used by the Court to resolve facts. GARUBA V. KWARA INVESTMENT CO. (2005) NWLR (Pt. 917) 160, TSALISAWA V. HABIBA (1991)2 NWLR (Pt. 174) 462.
It was submitted that by the virtue of Sections 2 (1) and 24 of the Legal Practitioners Act LFN 2004, only a legal Practitioner whose name is on the role of the Supreme Court can sign a Court process to ensure responsibility and accountability, citing the case of IBRAHIM V. BARDE (1996) 9 NWLR (Pt. 474) 513, U.A. VENTURES V. FCMB (1998) 4 NWLR (Pt. 547) 546, IBWA V. IMANO (NIG) LTD & ANOR. (1998) 4 NWLR (Pt. 111) 114.
Premised on these, the learned Senior Counsel submitted that the Originating Process having not been initiated by due process of law and upon the condition precedent to the exercise of the Court’s jurisdiction, the trial Court as well as this Court are robbed of jurisdiction over the matter. MADUKOLU V. NKEMDILIMI (1962) 2 ALL NLR 581, OKARIKA V. SAMUEL (2013) VOL. 53 NSCQR (PT. 1) 220 and that whatever is done no matter how well it was done, is a nullity as the defect is incurable MACFOY V. UAC LTD (1961) ALL ER 1169, urging us to resolve the issue in favour of the Appellant.
1ST RESPONDENT’S SUBMISSION
Submitting par contra and contending that the absence of the legal Practitioner’s signature on the amended Originating Summons is not sufficient to render the process void and rob the Court of its jurisdiction, learned Counsel submitted that the Rules of Court are hand maids of justice and that if this Court is to hold that it lacks jurisdiction because the Originating Summons was signed by the judge instead of the legal practitioner, it would be contrary to the fundamental objective of the Rules of the lower Court which is for the just and expeditions disposition of cases. He cited the cases of SALEH V. MONGUNO (2006) 15 NWLR (Pt. 1001) 26 at 60 AC, ABDULKADIR ALIYU & ORS V. INTER CONTINENTAL BANK PLC (2013) LPELR 20716 (CA) at 24 – 25 B – B per Abiru JCA. He also referred to Order 51 (1) of the Rules of the lower Court to argue that the absence of the Counsel’s signature on the originating process is a mere irregularity which does not go to the root of the suit to rob the Court of by its jurisdiction, and can be cured.
learned counsel also referred to Order 9 (2) of the Rules of the lower Court, 2009 to argue that since it is a requirement of the Rule that every Originating Summon is to be accompanied by an affidavit and copies of exhibits which the 1st Respondent complied with, and it is the affidavit that sets out the facts relied upon, it was sufficient that the affidavit was attached.
The word “shall” as used in Order 3 Rule (1) of the Federal High Court Rules, 2009 learned Counsel argued, is not mandatory, AMADI V. NNPC (2000) NWLR (Pt. 674) 76 at 97 and that the 1st Respondent having attached the affidavit which the trial Court relied upon, the absence of the Counsel’s signature on the amended Originating Summons does not render the process void urging us to resolve the issue in the negative, (in favour of the Respondent).
In his reply brief, the learned Senior Counsel for the Appellant submitted that Order 51 (1) of the Rules of the lower Court relied upon by the Appellant to salvage the amended Originating process as an irregularity does not apply as the Supreme Court has held in S.L.B. CONSORTIUM LTD V. NNPC (2011) 9 NWLR (Pt. 1252) 317 that a provision of the Rules of Court cannot come in aid to regularize an incurably bad process, and that the Court also gave the guidelines as to how the process should be signed.
He submitted that the condition imposed by Order 3 Rule 11 (1) makes it mandatory on a claimant to sign the process and a legal practitioner to ensure that each copy is signed by him.
On the Respondent’s submission that the affidavit in support of the amended Originating Summon suffices it was submitted that though all the bundles of documents filed by the 1st Respondent may be referred to as originating processes, the paramount and the fundamental document upon which the others depend remains the amended Originating Summons that validates the affidavit. BUHARI V. ADEBAYO (2014) 10 NWLR (Pt. 1416) 56.
He submitted that the legal Practitioner must be diligent in the practice of the profession and must avoid the 3 “nots” of carelessness in signing and filing Court process, negligence in filing and signing Court process, and tardiness in filing Court processes.
He submitted that the signature of the learned trial judge on the amended Originating Summons does not salvage the process and that the issue of non-signing of Originating Summons is not a matter of technicality but one of jurisdiction.
He stated that the case of SALEH V. MONGUNO (2006) 15 NWLR (Pt. 1001) 316 relied upon by the Respondents Counsel is inapplicable to the circumstances of this case and urged that the Respondent’s argument be discontinued.
RESOLUTION OF APPEAL
It is not in contention or in contestation that the amended Originating Summons by which the action was commenced at the lower Court was neither signed by the legal Practitioner or the party itself. The only bone of contention is the effect of such non-signing of the originating process. The contention of the learned Respondent’s Counsel is that the absence of the signature of the legal practitioner or their litigant on the Originating Summons is not sufficient to render it void and rob the Court of jurisdiction same having been signed by the judge and accompanied by duly filed affidavit.
By Order 3 Rules 11 (1) and 12 (3) of the Federal High Court (civil procedure) Rules, 2009, each copy of an originating process prepared by a plaintiff or his legal practitioner “shall” be signed by the legal Practitioner or by a plaintiff where the plaintiff sues in person and shall be certified after verification by the Registrar as being the true copy of the Originating process filed.
The originating process in this case, the amended Originating Summons at pages 1 – 3 of the record of appeal only bears the name of the legal practitioner, ”Hussaini Gambo (Mrs)” without the signature of either the said Legal Practitioner or the 1st Respondent. It however bears the signature of the judge.
Obviously, the amended Originating Summons does not comply with Order 3 Rule 12 (3) of the Rules of the lower Court. By its plain meaning each copy of the prepared originating process is to be signed by the legal practitioner who prepared it for filing or by the plaintiff where the plaintiff sues in person. The required signature on the prepared originating process which shall be in conformity with Order 3 Rule 11 (1) within the meaning of Order 3 Rule 12 (3) is that of the legal practitioner who prepared the process or of the plaintiff. It is only after strict compliance with Order 3 Rule 12 (3) that the Registrar shall seal the originating process where upon it shall be deemed issued. Order 3 Rule 12 (3) does not contemplate the signature of the judge as the person filling the process in place of or in substitution for that of the legal practitioner or the plaintiff. The judge’s signature is only for the issuance of the process. The two signatures do not serve the same purpose nor are they in the alternative. They are two separate mandatory requirements, to validate the filling and issuance of the process respectively. In TITILAYO PLASTIC INDUSTRIES LTD & ORS V. FAGBOLA (2019) LPELR-47606 (SC) which dealt with the failure of the judge to sign the originating process to validate its issuance, the apex Court held:
“…Again, on this originating summons issue is the question of the improper issuance of the said summons. The Court of Appeal had held that the originating summons was not signed either by the Registrar of the trial Federal High Court or the presiding Judge. The Court below therefore held that there was non-compliance in an incurably defective way. It is difficult to go against what the Court below said in the light of Order 7 Rule 8 of the Federal High Court (Civil Procedure) Rules, 2000, the applicable Rules of the trial Court at the time the originating summons was filed.”
This is the plain and grammatical meaning of Order 3 Rule 12 (3) read together with Order 3 Rules 11 (1) and 12 of the Rules of the lower Court. Such is the intended meaning and effect of the provision.
The employment of the word “shall” in their provision renders it a mandatory provision. By it, the provision issues a decree of compulsion compelling compliance and leaves no room for any option or a discretion in the matter. This has been the avowed interpretation of the said Rule of Court or similar provision in other states Rules of Court.
The apex Court and this Court have severally interpreted the provision to have the same meaning and effect of mandatoriness notwithstanding any other saving provision in the Rule of Court like Order 51 (1) Fed. High Court Rules cited by the 1st Respondent counsel. See ABUBAKAR V. NASAMU (NO. 1) (2012) 17 NWLR (Pt. 1330) 407. See ADEOSUN V. GOVERNOR EKITI STATE (2012) 4 NWLR (Pt. 1291) 581, AGBITI NIG. V. ARMY NAVY (2011) 4 NWLR (Pt. 1236) 175, AREGBESOLA V. OYINLOLA (SUPRA), SAMI V. APC & ORS (2019) LPELR-4845 (CA).
A survey of case law on this issue including the afore cited decisions, in an unbroken long chain of cases from the locus classicus of OKAFOR V. NWEKE (2007) 10 NWLR (Pt. 1043) 521, through to S.L.B. CONSORTIUM LTD V. NNPC (SUPRA), F.B.N. PLC V. MAIWADA (2013) 5 NWLR (Pt. 1348) 444, 456 where the apex Court declined an invitation to depart from OKAFOR v. NWEKE (SUPRA) to the more recent cases like OKPE V. FAN MILK PLC & ANOR (2017) 2 NWLR (Pt. 1549) 282, B.P.S. CONST. & ENGR. LTD. V. FCDA (2017) 10 NWLR (Pt. 1572) 1 and HERITAGE BANK LTD V. BENTWORTH FINANCE (NIG) LTD, and TITILAYO INDUSTRIES LTD V. FAGBOLA (supra), the apex Court has firmly stood its ground that an Originating process which is required by the Rule of Court to be but is not signed by a legal Practitioner or the party is incurably defective and incompetent. Indeed only recently, in 2019 in the case of the TITILAYO PLASTIC INDUSTRIES LTD & ORS V. FAGBOLA (supra), the apex Court in affixing its stamp of authority, endorsed the decision of this on the mandatory nature of the said Rule of Court and its attendant consequence of non-compliance.
It is therefore settled that non-compliance with the provision or any such defect in the originating process cannot be treated as a curable irregularity by the general saving provision of the Rules of Court and in this case by Order 51 (1) of the Rules of the lower Court cited by the 1st Respondent.
This is so because the originating process is the spinal cord of the action, it is its foundation upon which every other process and power depends. All other processes including the power of the Court over the suit draws its validity from the originating process which is the initiator and the kick-starter of the action. Given to this state of the law, once the foundation is polluted or all together destroyed, the other accompanying processes will also be infected and be rendered incompetent as well. Like an armed robber, the incompetence of the originating process also robs the Court of its jurisdiction donated by the Constitution or the law.
In SAMI V. APC (SUPRA), I had occasion to consider a similar argument and stated thus: –
“Now, a writ of summons is an originating process and the foundation of a plaintiffs claim. It is the process that kick starts the action and in turn vests jurisdiction on the Court. An unsigned writ of summon is a worthless process; it is non-existent and legally incurable. It is a dead process which cannot be resuscitated no matter what effort is made to bring it to life. It is an incompetent and void process and remains so. In the eyes of the law, it is not in existence, and what is not in existence cannot be amended, as amendment cannot bring to being what is non-existent or bring to life what is dead. Such an unsigned writ of summons is and remains an incompetent process.
As an originating process, where the writ of summons as in this case is fundamentally defective, it is incapable of kick-starting the action or initiating any legal proceedings or to ignite the jurisdictional competence of the Court. It cannot invoke the jurisdiction of the Court. See BUHARI V. ADEBAYO (2014) 10 NWLR (Pt.) 560
The effect of initiating an action with an unsigned writ of summons was considered by the Apex Court in OMEGA BANK NIG. PLC v. OBC LTD (2005) ALL FWLR (Pt. 249) 1964 at 193 where the Court held:
A document which is not signed does not have any efficacy in law. As held in cases examined, the document is worthless and a worthless document cannot be efficacious. …Thus, failure to initiate the action with a valid writ of summons is a fundamental infraction, bothering on the jurisdiction of the Court to adjudicate over the matter.
Learned appellant’s counsel argued profusely that the failure to sign the writ of summons is a mere irregularity which can be amended and cured. He cited a number of authorities including the cases of PATE V. MUHAMMAD (Supra) (2016) LPELR-41175 (CA), SAUDE V. ABDULLAHI (Supra) LPELR 3017 (SC) to contend that the defective writ of summons is capable of being amended.
These cases however do not support or enhance his position. All the cited cases deal with procedural irregularities. Not a single case decided that a fundamental defect in the originating process, such as an unsigned writ of summons, can be amended or that such a fundamental defect is a mere irregularity. While the cases cited and relied upon remain good law for the principles enunciated and established, they have no relevance to the facts of this matter.”
In the instance case, the argument of the 1st Respondent’s counsel that the absence of the signature of the legal practitioner on the originating process is an irregularity and can be cured by Order 51 (1) of the Rules of the lower Court has since been rejected by the Supreme Court that even an amendment cannot cure such an incompetent process. In MINISTRY OF WORKS AND TRANSPORT, ADAMAWA STATE V. YAKUBU.
Muntaka Coomasie JSC stated:
“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 amendment?
…The fatal effect of the signing of an originating process by a law firm is that 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.”
As in the case of SAMI V. APC & ORS. (SUPRA) the cases of SALEH V. MONGUNO (SUPRA), ABDULKADIR ALIYU & ORS. V. INTERCONTINENTAL BANK PLC & ANOR (SUPRA), cited by the learned Respondent’s Counsel, do not deal with non-compliance with mandatory requirement of signing a legal process. Let me therefore reiterate that this requirement as highlighted earlier in this judgment is not a matter of procedural irregularity or of technicalities. It is a matter of substantive law of jurisdiction and thus a fundamental principle which is the core or the bedrock of every adjudication. It is a condition precedent to the assumption of jurisdiction. In FBN PLC V. MAIWADA (SUPRA) the apex Court per Onnoghen reiterated:
“I wish to repeat that we are interpreting a law which seeks to make the legal Practitioners responsible and accountable more especially in modern times that we are presently operating. I see nothing technical in insisting that a legal Practitioner should abide by the dictates of the law signing Court processes. It is my view that if the decision in OKAFOR V. NWEKE is revisited as urged, more confusion will be created.”
It follows that the argument of the learned Respondent’s Counsel that the signature of the judge on the Amended Originating Summons and that the regularity of the accompanying affidavit suffices, unfortunately, is not supported by law as demonstrated supra. The signature of the judge to validate the issuance of the writ does not take the place of the signature of the legal Practitioner who prepared and filed the process nor of the plaintiff/litigant who owns the case, to validate the filling of the process. Similarly, as earlier stated, the validity of the affidavit which is like the structure built on the foundation, the Originating process, cannot stand where the foundation collapses or crumbles. The structure erected on the collapsed foundation must also crumble with the foundation. Surely, from nothing comes nothing, something cannot be placed on nothing and be expected to stand. It cannot stand. The Latin maxim is ex nihilo, nihil fit: out of nothing, nothing comes. See MANAGEMENT ENTERPRISES LTD V. OTUSANYA (1987) LPELR (1834) 1 at 74, NZOM V. JINADU (1987) LPELR (2143) 1 at 44.
See also MACFOY V. UAC (2006) 16 WRN 183. The effect is that the 1st Respondent’s action was not initiated by due process of law and a condition precedent not fulfilled thereby denying the Court of jurisdiction.
A Court of law is invested with jurisdiction to hear a matter when: 1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. 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 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu V. Nkemdilim (supra), Saraki V. FRN (2016) 3 NWLR (Pt. 1500) 531; All these three must be present for the Court to be vested with jurisdiction.
I agree with the submission of the learned Senior Counsel for the Appellant which is merely a restatement of the law that being a jurisdictional issue, same can be raised on appeal as they have done here and indeed even in the Supreme Court for the first time. See N.N.P.C. V. ORHIOWASELE (2013) 13 NWLR (Pt. 1311) 211 at 223 E-F.
Therefore, all said and done, the amended Originating Summons which initiated suit FHC/KD/CS/151/2015 before the lower Court is incompetent and the Court had no jurisdiction to have entertained the action. In the circumstance this issue is therefore resolved in favour of the Appellant. Having resolved the issue in favour of the Appellant, a consideration of the 2nd issue becomes otiose. In the circumstance, I find merit in this appeal and it is hereby allowed.
Consequently, the incompetent Amended Originating Summons is hereby struck out. All the orders made by the lower Court pursuant to the incompetent amended Originating Summons are hereby set aside.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Amina Audi Wambi, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
Tajudeen O. Oladoja, SAN For Appellant(s)
Chile Okoroma Esq. – for 1st Respondent.
E.B. Abichele with him, I.I. Gazali – for 3rd & 4th Respondent. For Respondent(s)
