HARRISON OGARA & ANOR v. DR. I. DIALOKE
(2018)LCN/12276(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2018
CA/E/206/2013
RATIO
COURT AND PROCEDURE: WHETHER A SUIT IS TO COMMENCE WITH A VALID WRIT OF SUMMONS
“It is trite that for a suit to be competent, it must be commenced with a valid writ of summons. In the case of KIDA V. OGUNMOLA (Supra) (2006) LPELR-1690(SC), MUSDAPHER ,J.S.C observed: ‘…the validity of the originating processes in a proceeding before a Court is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any Order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.'” PER CHINWE EUGENIA IYIZOBA, J.C.A.
COURT AND PROCEDURE: WHETHER AN UNSIGNED WRIT OF SUMMON CAN BE CONSIDERED VALID
“The question here is whether an unsigned writ of summons can be considered valid under any circumstance. It is now settled law that a Court process that is not signed by a legal practitioner whose name appears on the roll of legal practitioners and who is entitled to practice as a barrister and solicitor as provided for in Section 2 and 24(2) (1) of the Legal Practitioners Act, 2004 is incompetent and liable to be struck out. See the case of OKAFOR V. NWEKE (2007) 3 SC (PT.II) 55. OKETADE Vs ADEWUNMI (2010) 8 NWLR (Pt.1295) 63, OKAFOR VS. NWEKE (2007) 10 NWLR (PT.1043) 521, SLB CONSORTIUM VS. NNPC (2011) 9 NWLR (PT.1252) 317 AND WILLIAMS VS. ADOLD/STAMM INT’L (NIG) LTD (2017) 6 NWLR (PT.1560) 1 @19.” PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1. HARRISON OGARA
(The Editor in Chief of the Starlite Newspaper)
2. ISERVE STARLITE PUBLICATIONS LTD Appellant(s)
AND
DR. I. DIALOKE Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Enugu State Nsukka judicial division in Suit No N/53/2008 delivered on the 9th day of July 2012 Coram Onovo J. The Respondent as Plaintiff had instituted the action against the Appellants as Defendants claiming the following reliefs:
a. “An Order of the Court directing, commanding and or compelling the defendants to retract the said publication forthwith and render an unreserved apology to the Plaintiff in the front page of The Starlite Newspaper and The Guardian Newspaper respectively.
b. An Order of perpetual injunction restraining the defendants whether by themselves, their agents, servants, employees, workers, privies and or anybody howsoever described acting for and or on behalf of and or in the name of the defendants in any manner whatsoever from further publishing the said news item.
c. (N50,000,000.00) fifty million naira damages.”
The facts giving rise to the suit are as follows: The 1st Defendant, now 1st Appellant, was the Editor in Chief of the Starlite Newspaper, while the 2nd Appellant was the publisher of the newspaper. On Monday 15th October, 2007, the Defendants published of and concerning the Respondent in the front page, page 2 and page 15 respectively of the newspaper an article titled ‘Sex for marks: UNN sacks 2 lecturers’ and ‘Sex for marks @ UNN: Dr. Dialoke, Dr. Emerole sacked.’ According to the Respondent, in the said article, it was published not only that the Respondent was sacked by the University for harassing students sexually and having had sex with almost all the girls in the class, but that the University Authorities is looking beyond the crime and have placed his doctorate degree certificate under powerful scrutiny with a view to ascertaining the genuineness.
It was further published that at the time of filing the report, it was gathered authoritatively that the professors who supervised the two lecturers involved in their Ph.D programmes have come under intensive investigation. Indeed, that it has been confirmed that the award of PhD certificates to Dr. Dialoke and Emerole had been withdrawn. It was also published that the Respondent was given the name ‘Mkpi’ which means, he- goat. Based on the publication, the Respondent sued the Appellants for libel. The Appellants in the joint Statement of Defence filed on their behalf by counsel admitted the publication and set up the defences of justification and qualified privilege.
Thereafter, trial commenced and the Respondent as Plaintiff called two witnesses in proof of his case. He testified in person and denied all the allegations in the publication of the Appellants. He also called another witness who gave evidence in support of his claims. The 1st Appellant gave evidence in support of the defence. At the close of trial, parties filed their written addresses and the trial Court gave judgment on 9th July 2012 holding that the Respondent was defamed with regard to the publication that his doctorate degree certificate was withdrawn by the University of Nigeria Nsukka. With respect to the publication regarding the Respondent’s alleged sexual dealings with students, the trial Court simply stated that it cannot overlook the circumstances of the termination of the Respondent’s appointment and declined to award him any relief in that regard. He was awarded N200,000.00 as damages for defamation.
Being dissatisfied with the judgment, the Appellants filed an appeal in this Court. The Respondent also cross-appealed on the refusal of the trial Court to find that the he was defamed by the aspect of the article on his sexual dealings with students and also on the quantum of damages awarded in his favour. Parties filed and exchanged briefs of argument. At the hearing of the appeal, the Appellants were not represented but their brief was deemed duly argued. Learned counsel for the Respondent/Cross-Appellant who was present and adopted his brief of argument. Out of the three grounds of appeal in the Notice, the Appellants in their brief of argument formulated two issues for determination as follows:
1. Whether the Writ of Summons in this Suit is incompetent.
2. Whether the defence of qualified privilege under Section 190(1) (a) (i) of the Torts Law of Enugu State, CAP. 150, Revised Laws of Enugu State of Nigeria, 2004 availed the Appellants.
The Respondent/Cross Appellant adopted the issues formulated by learned counsel for the Appellants. Counsel however pointed out that the issues formulated did not cover the first ground of appeal in the Appellants’ Notice of appeal; and that the ground must consequently be deemed abandoned. The first ground reads thus:
GROUND ONE:
The trial Court erred in law when it held that the Respondent proved the claim of libel.
PARTICULARS
(i) In the judgment the trial Court held thus:-
Are the words capable of bearing a defamatory meaning? The Plaintiff answered this in the affirmative both in his pleadings and in his evidence before the Court. The Defendants however kept mum on this. The plaintiff’s statement of claim and evidence bear testimony to the meaning of the words and the way they were understood by right thinking members of the society. They are capable of bearing a defamatory meaning when the entire article is read as a whole. First, there is the part dealing with the plaintiff having been ‘sacked’ and ‘booted out’ of the University for his sexual escapades and for being acknowledged by students to be ‘Mkpi’.”
(ii) The trial Court did not take into consideration evidence elicited from the P.W.1 and D.W.1 which evidence was favourable to the appellants? case and which they were entitled to have credited to the appellants.
(iii) The Court has a duty to consider all the evidence put before it before coming to any decision.
(iv) The Respondent did not plead innuendo.
It is evident from the two issues formulated by the Appellants that no issue was formulated from the above Ground one. I agree with learned counsel for the Respondent. Ground one in the Appellants? Grounds of appeal is deemed abandoned.
ISSUE 1:
WHETHER THE WRIT OF SUMMONS IN THIS SUIT IS INCOMPETENT
APPELLANTS? ARGUMENTS:
Learned counsel for the Appellants on this issue submitted that the writ of summons was not signed by either the Respondent or his counsel; and that the action is consequently incompetent. He referred to the provisions of Order 6 Rule 2(3) of the High Court of Enugu State (Civil Procedure) Rules and submitted that the Rule used the word ‘shall’ which implies that compliance with the provision requiring the signature of counsel or litigant on the writ of summons is mandatory. Counsel referred to a number of authorities including the cases of KIDA V. OGUNMOLA (2006) ALL FWLR (PT.327) 402 @ 412; SLB CONSORTIUM LTD V. NNPC (2011) ALL FWLR (PT.583) 1902 @ 1909; BRAITHWAITE V. SKYE BANK PLC (2012) 12 SC (PT.1) 13. He submitted that Rules of Court are meant to be obeyed and urged the Court to hold that the Respondent’s action is incompetent.
RESPONDENT?S ARGUMENTS:
Learned counsel for the Respondent in reply submitted that the use of ‘shall’ in a Statute is not always construed to be mandatory. He referred to the meaning of ‘shall’ in Black’s Law Dictionary, 6th Edition at page 1375. He further referred to the cases of ATAMGBA V. EFFIMI (2001) FWLR (PT 58) 1155 @ 1175; KATTO V. CBN (1991) 9 NWLR (PT.214) 126. Citing the case of OLOBA V. AKEREJA (1988) 3 NWLR (PT.84) 508 AT 528, counsel argued that Rules of Court being adjectival law are meant to be vehicles for attainment of justice based on rights conferred by substantive laws and as such are not masters but handmaids of justice. He referred to Section 56 of the High Court Law of Enugu State, 2004 and submitted that the writ of summons is issued by the Registrar of Court.
He also referred to Order 6 Rule 2(1) of the Rules of the Court which provides that the Registrar shall seal every originating process of Court and same would be deemed issued. Counsel relied on the cases of FAMFA OIL LTD V. AG FEDERATION (2003) 18 NWLR (PT.852) 453 AND ANYANWOKO V. OKOYE (2010) 1 SC (PT.II) 3, and submitted that the Supreme Court in those cases held that failure of counsel to sign originating processes amounted to mere irregularities which did not invalidate the action.
He submitted that the major difference between the cases cited by learned counsel for the Appellants and this very case is that those cases dealt with noncompliance with mandatory statutory provisions while in this case, the objection is concerned with noncompliance with procedural or adjectival law which will not nullify the action. He referred to CLEMENT V. IWUANYANWU (1989) 4 SC (PT.II) 89 and Order 5 Rule 3 of the High Court Rules of Enugu State. Counsel submitted that no condition precedent was breached in this case. He urged us to overrule the objection.
APPELLANTS’ REPLY
In the Appellants’ Reply Brief of Argument; learned counsel relying on the case of OLUWATUYI V. OWOJUYIGBE (2014) LPELR 23529 submitted that the requirement that counsel must sign originating processes of Court was made imperative by the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Cap L 11, Laws of the Federation of Nigeria 2004.
RESOLUTION
It is trite that for a suit to be competent, it must be commenced with a valid writ of summons. In the case of KIDA V. OGUNMOLA (Supra) (2006) LPELR-1690(SC), MUSDAPHER ,J.S.C observed:
“…the validity of the originating processes in a proceeding before a Court is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any Order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.” See also BRAITHWAITE V. SKYE BANK PLC (2012) LPELR-15532 (SC), where OGUNBIYI J.S.C observed:
“A writ of summons is an originating process by means of which actions are commenced. The competence of such process is a pre-requisite for a valid and subsisting claim. Where the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction thereon.”
The question here is whether an unsigned writ of summons can be considered valid under any circumstance. It is now settled law that a Court process that is not signed by a legal practitioner whose name appears on the roll of legal practitioners and who is entitled to practice as a barrister and solicitor as provided for in Section 2 and 24(2) (1) of the Legal Practitioners Act, 2004 is incompetent and liable to be struck out. See the case of OKAFOR V. NWEKE (2007) 3 SC (PT.II) 55. OKETADE Vs ADEWUNMI (2010) 8 NWLR (Pt.1295) 63, OKAFOR VS. NWEKE (2007) 10 NWLR (PT.1043) 521, SLB CONSORTIUM VS. NNPC (2011) 9 NWLR (PT.1252) 317 AND WILLIAMS VS. ADOLD/STAMM INT’L (NIG) LTD (2017) 6 NWLR (PT.1560) 1 @19.
In the case of SLB CONSORTIUM LTD V. NNPC the Supreme Court after considering the case of REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS AREA V. RAHMAN AKINDELE (1967) NMLR 263 explained that “a process prepared and filed in Court of law by a legal practitioner must be signed by the legal practitioner and that it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his firm in which he carries out his practice.”
Learned counsel for the Respondent relied on the cases of FAMFA OIL LTD V. AG FEDERATION (2003) 18 NWLR (PT.852) 453 AND ANYANWOKO V. OKOYE (2010) 1 SC (PT.II) 30 to contend that the omission of counsel in this case should be treated as an irregularity. The cases are inapposite. In FAMFA OIL LTD V. AG FEDERATION (SUPRA), the Originating Summons by which the action was commenced was required to be signed by the Judge, but it was signed by the Registrar, the Supreme Court held that such noncompliance did not nullify the action. In ANYANWOKO V. OKOYE (SUPRA) the original copy of the Originating Summons in the Courts file was duly signed by counsel but the copy served on the Appellant was not so signed. Objection brought by the Appellant in that case was overruled.
The Court processes were signed unlike in this case where it was not signed at all. Also, contrary to the contention of the learned counsel for the Respondent who has dutifully labored to salvage this case, this is not simply a case of non-compliance with the requirement of Rules of Court or adjectival law, but a requirement of substantive law, The Legal Practitioners Act. The decisions of the Supreme Court and the Court of Appeal on this matter are numerous and consistent and this Court cannot depart from them in the instant case.
See OBIAKOR & ORS V OKAFOR (2017) LPELR-43309(CA) where on the effect of a defective writ on the jurisdiction of the Court ABIRU J.C.A held:
“Looking at the writ of summons contained in record of appeal, there is nothing thereon showing the name and signature of the person who took it out for filing in the lower Court and it is thus impossible to ascertain if the person was a legal practitioner registered to practice Law in Nigeria or the Respondent himself. It is settled law that an issue affecting the substantive jurisdiction of a Court to hear a matter cannot be resolved on basis of conjecture or speculation and that the jurisdiction of a Court cannot be presumed or assumed; it must be resolved on clear facts on the records. Thus, on facts as contained in the records of appeal, the writ of summons before the lower Court was not signed either by a legal practitioner registered to practice Law in Nigeria or by the Respondent himself. This rendered the writ of summons incompetent and this robbed the lower Court of jurisdiction to entertain the action – Abe Vs Skye Bank Plc (2015) 4 NWLR (Pt 1450) 512, Eze vs Okechukwu (2015) 10 NWLR (Pt 1467) 307, Williams Vs Adold/Stamm International (Nig) Ltd (2017) 6 NWLR (pt 1560) 1.”
In this case, the writ of summons at pages 1 to 3 of the record of appeal was not signed by the learned counsel or the Respondent. It is thus clear that the requirement of the law is not complied with at all by the Respondent and his counsel. The action is incompetent in that the originating processes were not signed by either the Plaintiff or his counsel and as such failed to comply with the provision of the applicable High Court Rules of Enugu State and the Legal Practitioners Act.
On this issue one alone, I hold that this appeal is meritorious and is hereby allowed. The judgment of the High Court of Enugu Sate in Suit No N/53/2008 delivered on the 9th day of July 2012 Coram Onovo J is set aside. The case of the Respondent before the lower Court is hereby stuck out. The parties are to bear their respective costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have read the Leading Judgment of my Learned Brother C. E. lyizoba, JCA and I am in total agreement with his reasoning and conclusion that the Suit of the Respondent (then Plaintiff) in the Lower Court was incompetent since the Writ Of Summons was neither signed by a Legal Practitioner nor the Respondent personally. Accordingly, on the authorities of Okafor V. Nweke (2007) 3 SC (Pt. 11) 55; SLB consortium V. NNPC (2011) 9 NWLR (Pt. 1252) 317 and Williams V. ADOLD/STAMM INT’L (Nig. Ltd.) (2017) 6 NWLR (Pt. 1560) 1 at 1950; ably cited and relied upon by my Learned brother, the Appellants’ Appeal is meritorious and same is accordingly allowed.
I also shall set aside the Judgment Of the Learned Trial Judge delivered on 9th July, 2012 per Onovo, J. for being a nullity and abide by the Order as to costs.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother CHINWE EUGENIA IYIZOBA, JCA and I totally endorse the reasoning and conclusion therein.
An unsigned document is a totally worthless piece of paper absolutely null and void. See SLB CONSORTIUM VS NNPC (2011) 9 NWLR (PT 1252) 317.
For the more detailed reasoning in the lead judgment, I equally allow the appeal and I adopt the consequential Orders in the lead judgment as mine.
Appearances:
APPELLANT NOT REPRESENTED BUT SERVED.
For Appellant(s)
A. U. AGBO ESQ.For Respondent(s)
