HYUNDAI HEAVY INDUSTRIES CO. NIG. LTD v. ASECHEMIE & ORS
(2020)LCN/14292(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Thursday, June 11, 2020
CA/PH/51/2017
Before Our Lordships:
Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Between
HYUNDAI HEAVY INDUSTRIES COMPANY NIG. LTD APPELANT(S)
And
- DR. DOUGLAS ASECHEMIE 2. MCDONALD INTERNATIONAL ENGINEERING LTD 3. SUFFOLK PET. SERVICES LTD RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
It ought to be reiterated that the principle of fair hearing is not merely technical but rather a rule of substance that requires every Court of law to uphold and strictly apply in the exercise of the judicial powers thereof under Section 6 (6) (1) – (5) and 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. See BAMAIYI VS. THE STATE (2001) 2 NWLR (Pt. 698) 438; KOTOYE VS. CBN (1989) 1 NWLR (Pt. 98) 419; ATANO VS. AG BENDEL STATE (1988) 2 NWLR (Pt.75) 201. PER SAULAWA, J.C.A.
WHETHER OR NOT THE COURT HAS THE DUTY TO BALANCE THE NEED NOT TO DELAY JUSTICE
Yet, the Court has an onerous duty to balance the need not to delay justice with a far more fundamental requisite in the administration of justice – non denial of justice. I think it was in the of CEEKAY TRADER LTD VS. GENERAL MOTORS COY LTD, that the Apex Court cherishingly postulated the immutable doctrine, thus:
Delay of justice is bad, but denial of justice is worse and outrageous. The denial inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of justice. It is for this reason that when a case is not fought and heard on merits, the order to be made must be one that does not shut out a party permanently from obtaining justice. See (1992) LPELR – 834 (SC) per Olatawura, JSC (of blessed memory) @ 47 paragraphs B-E
Per Saulawa, JCA @ 72-73 paragraphs E-C. PER SAULAWA, J.C.A.
THE BURDEN OF PROOF IN CIVIL CASES
The position of the law with regard to burden of proof in civil cases, is not at large. See Sections 131, 132, 133 and 134 of the Evidence Act (supra).
Most particularly, the provisions of Section 133(1) are to the unequivocal effect that in civil cases the burden of first proving the existence or non-existence of a particular fact predicates upon the party against whom judgment would (ultimately) be given if no evidence were adduced (produced) by either side, regard of course being had to presumption that may arise on the pleadings. However, it is equally provided in subsection (2) of Section 133 of the Evidence Act (supra) that –
(2) If the party referred to in subsection (1) of this section adduced evidence which ought reasonably to satisfy a jury (Court) that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successfully, until all the issues in the pleadings have been dealt with.
Under Section 134 of the Evidence Act (supra), the burden of proof in all civil cases shall invariably be discharged upon the balance of probabilities.
Thus, when the foregoing salient provisions of Sections 131, 132, 133 and 134 of the Evidence Act are married to the 1st Respondent’s pleading, there is no gainsaying that the 1st Respondent has the onerous burden under the law to prove the facts pleaded in the Statement of Claim thereof on the preponderance of evidence or balance of probabilities. See HASKE VS. MAGAJI (2009) All FWLR (Pt.461) 887; BUHARI VS. INEC (2008) NWLR (Pt.1120) 246 at 369-370; UBN LTD VS. OZIGI (1994) 3 NWLR (Pt.333). In the case of ADEGOKE vs. ADIBI, the Supreme Court had had a cause to aptly reiterate the fundamental doctrines to the following effect:
In civil case, while the general burden of proof in the sense of establishing his case lies on the Plaintiff, such a burden is not as static as in criminal cases. Not only will there be instances in which on the state of the pleadings the burden of proof lies on the defendant but also, as the case progresses, it may become the duty of the defendant to call evidence in proof or rebuttal of some particular point which may arise in the case.
See (1992) 5 NWLR (Pt. 242) 410; (1992) 6 SCNJ 136; (1992) LPELR-95 (SC) per Nnaemeka-Agu, JSC @ 19-20 paragraphs G-A. PER SAULAWA, J.C.A.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant Appeal is a fall-out of the interlocutory Ruling of the Rivers State High Court, Coram S. H. Arioku, J. delivered on October 11, 2016 in Suit No. PHC/1376/2005. By the said interlocutory decision, the Court below dismissed the Appellant’s Preliminary Objection, thereby challenging the competence of the Respondents’ suit.
BACKGROUND FACTS
The suit in question was instituted in the Court below by the 1st Respondent on 11/08/2005 vide a Writ of Summons. By paragraph 25 of the Statement of Claim, filed along with the Writ, the 1st Respondent claimed against the Appellant, the 2nd and 3rd Respondents the following reliefs:
“The sum of N108,667,881 (One Hundred and Eight Million, Six Hundred and Sixty Seven Thousand, Eight Hundred and eighty one Naira) only being and representing his gains/profit/commission for his consultancy services rendered to the Defendants known as HMS. HYUNDAI/ MCDONALD/ SUFFOLK CONSORTIUM (Defendants in this suit) at the instance or request of the 1st Defendants as the managing Director for the 3rd Defendants of which services made the Defendants to:
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- Successfully form the consortium known as and called HMS,
II. Technically and commercially enabled the consortium (HMS) to win the forcados Yokri integrated project for US $800,000,000.00 (Eight Hundred Million US Dollars)”
On 16/07/2010 the Appellant (1st Defendant) filed in the Court below the Statement of Defence thereof. Likewise, on 02/12/2011 E. Ugbeia, Esq. filled on behalf of the Appellant a Notice of Preliminary Objection urging upon the Court below to strike out the suit in question for want of jurisdiction. The Preliminary Objection was predicated upon two grounds, viz:
I. “The Writ of Summons commencing this action and Claimants Statement of Claim filed on 11/08/05 were signed by proxy i.e by an unidentified or an unknown person for and on behalf of F. H. Oso Esq. (SAN) and therefore incurably defective and incompetent.
II. By virtue of the Court of Appeals decision in ONWARD ENTERPRISES LIMITED V. OLAM INTERNATIONAL LIMITED (2010) ALL FWLR (PT. 531) P. 1503 @ 1514 par as. A- E of Court process signed by an unidentified or unknown person is incompetent and must be struck out”
On 16/05/2016, the Court
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below adjourned to 17/06/2016 for Ruling in regard to the Preliminary Objection. However, the vexed Ruling was eventually delivered on 11/10/2016 to the conclusive effect.
From the provision of the 1984, 2006 and 2010 Rules as set out here in the 1987 Rules under reference did not make any provision for signing of the Writ of Summon by the Legal Practitioner at the time of filing, as to make it mandatory and render the processes filed incompetent even if name was signed by proxy, as there is no requirement for signing of the Writ by a Legal Practitioner under the 1987 Rules of Court in Rivers State. In the result the Preliminary Objection is misconceived, the Application of the Defendant challenging the Writ issued under the 1987 Rules, is entirely unmeritorious and it was merely filed to waste the time of the Court and it ought to be dismissed and it is hereby dismissed.
See pages 76-79 of the Record of Appeal.
The Notice of Appeal was dated and filed on 25/10/2016. The Record of Appeal was initially transmitted on 01/02/2017, but deemed properly compiled and transmitted on 28/09/2017.
On 18/03/2020, when the appeal came up for hearing,
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the Learned Counsel had the privilege of addressing the Court and thereby adopting the argument contained in their respective Briefs of Argument, thus resulting in reserving Judgment. Most particularly, the Appellant’s Amended Brief was filed on 26/06/2018 by Tonye Krukubo, Esq. That brief spans a total of 13 pages. Specifically at page 3, a couple of issues have been couched:
I. Considering the fact that the 1st Respondents’ Writ of Summons and Statement of Claim were signed by an unidentified/unknown person for and on behalf of F. A. Oso (SAN) was the Lower Court right in law when it dismissed the Appellants Notice of Preliminary Objection challenging the competence of the suit? (Distilled from Ground 1 of the Amended Notice of Appeal).
II. Was the Lower Court right in law when it granted the 1st Respondent leave to amend its Originating Process and Statement of Claim which were signed by an unidentified unknown person (distilled from Ground 2 of the Notice of Appeal)
The issue 1 is argued extensively at pages 3-10 of the brief. In the main, it is submitted that the 1st Respondent’s suit, as constituted was not initiated
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by due process of law. That, the 1st Respondents Writ of Summons and Statement of Claim, filed on 11/08/2005, were signed by Proxy i.e by an unidentified or unknown person for and on behalf of F. A. Oso, Esq. (SAN), and therefore incompetent. The Learned Counsel has cited and relied upon various authorities in aid of the proposition. SeeBANKOLE VS DADA (2003) 11 NWLR (PT 830) 199-200 paragraphs G- D, GOVERNOR OF KWARA STATE VS LAFIAJI (2005) 5 NWLR (PT. 917) 139 @ 151 PARAGRAPHS D, SLB CONSORTIUM LTD VS. NNP (2011) 9 NWLR (PT. 1252) 317 @ 337 PARAGRAPHS G-H. ONWARDENT LTD V SOLAM INT’L LTD (2010) ALL FWLR (PT.531), 1503 @ 7513 PARAGRAPHS A-F, et al.
The Court is urged to so hold that the Court below was wrong in law, when it dismissed the Appellant’s Preliminary Objection.
The issue 2 is argued at pages 10-11 of the said brief, to the effect that the 1st Respondent’s Writ of Summons and Statement of Claim, being incurably incompetent, cannot be remedied or amended by recourse to any Rule of Court below. See OLAGBENRO VS OLAYIWOLA (2014) 17 NWLR (PT. 1436) 313; ONWARD ENT. LTD VS OLAM INT’L LTD (Supra) et al. The Court is urged to so hold.
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Conclusively, the Court is urged upon to set aside the vexed decision of the Court below and strike out the said suit, as same was purportedly commenced by an incurably defective process. Contrariwise, the 1st Respondents consequential Amended Brief was settled by O. A. Fati – Oso on 29/11/18. Though unpaginated, that brief actually spans a total of 18 pages.
At page 4 of the said brief the 1st Respondent raises a Preliminary Objection which is predicated upon a total of five grounds. A sole issue has been formulated for the determination of the Preliminary Objection viz:
“Whether or not this interlocutory Appeal is incompetent or not based on the main Appeal and the grounds contained therein which in our view makes it a more academic exercise”
It is submitted, that there is a glaring connection between the grounds of appeal contained in this appeal and the main appeal. The provisions of paragraphs 3 (a) (i) (ii) and 10 (a) of the Court of Appeal Practice Direction Rules, 2013 have been cited and relied upon in support of the foregoing contention.
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Further submitted, that by the provision of paragraph 10(a) of the Practice Direction (Supra), this Court shall refrain, from hearing such interlocutory appeal as the present one. The Court is thus urged to strike out or dismiss the present interlocutory appeal. It is argued that the law is trite, that once a substance suit has been determined, it overtakes the interlocutory appeal. See NWORA VS NWABUEZE (2011) 17 NWLR (PT. 1277) 699 @ 718-719; 724 (SC) ODEDO VS INEC (2008) 17 NWLR (PT. 1117) 554 @ 600.
On the whole it is postulated, that the Court below had exercised its discretion, judiciously and judicially, based on the facts presented before it.
Conclusively, the Court is urged to so hold.
Apparently, the 1st Respondent has adopted the Appellant’s two issues for determination of the appeal. The issue No. 1 is argued at pages 9 -11 of the said brief. It is submitted in the main that under Order 5 Rule 1 (1) of the Rivers State High Court (Civil Procedure) Rules, 1987, a Legal Practitioner was not required or mandated to sign a Writ of Summons. Further submitted that by virtue of the said Rules of the Court below (1987), the duty to issue a Writ of Summons was that of the Court Registrar.
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See IGWE UZUR & SONS NIGERIA LTD. VS. ONWUZOR (2007) 4 NWLR (PT.1024) @ 203.
It was argued, that the reference to the 2016 or 2010 Rules of Court when this suit was instituted in 2005, is misconceived that by virtue of Order 1 Rule (2) of the High Court of Rivers State (Civil Procedure) Rules 2010 give a retrospective effect to those Rules.
The Learned Counsel equally cited the case of SHUAIBU VS. MU’AZU (2007) 7 NWLR (PT. 1033) 271 and OGUNWANDE MICHAEL VS. TSKJ LTD. Delivered on 30/4/2012, to the effect that the omission to sign a Writ of Summons is a mere procedural irregularity which does not render the Originating Writ of Summon or Statement of Claim void.
The Court is urged to so hold.
The issue No. 2 is argued at pages 11-14 of the said brief, without much ado the Court is urged the second issue in the affirmative. The Learned Counsel relies on the case of UNIT BANK PLC VS. DENCLARK LTD. (2012) 18 NWLR (PT. 293) @ 327 PARAGRAPHS B-F, OBINYIRUIKE VS. LICHE (1991) NWLR (PT. 187) 87 et al. It was argued, that the application before the Court below to grant the amendment and he so granted was valid and legitimate. Conclusively,
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the Court is urged to so hold.
The Appellant’s Reply Brief was filed on 30/09/19. It spans a total of 12 pages. Pages 2-7 (paragraphs 5-16) of the Appellants Reply Brief deal with the 1st Respondent’s Preliminary Objection.
It is submitted in the main, that all the submissions of the 1st Respondents in the Preliminary Objection are grossly misconceived and a misrepresentation of Law. It is argued, that as the vexed suit is no longer pending before the Court below, Section 10 (b) at the 2013 of the Court of Appeal Practice Direction does not apply in the instant appeal. The Court is urged to so hold.
Secondly, it is further argued, that there is nothing in the Practice Direction 2013 (supra) which renders an appeal dealing with issues of pure law incompetent. The Court is urged to discountenance the cases cited by the 1st Respondent.OLALE VS. EKWELENDU (1989) 4 NWLR (PT. 115) 325 – NWORA VS. NWABUEZE (2011) 17 NWLR (PT. 1277) 699; ODEDO VS INEC (2008) 17 NWLR (PT. 1117) 554.
It is posited that the issues in the present interlocutory appeal are different and distinct from the issues in the substantive appeal. That in any event
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the Appellant has filed an application praying in the Court for an order consolidating the two appeals in question.
Conclusively, the Court is urged to discountenance the 1st Respondents argument in regard to the Preliminary Objection thereof.
On the other hand, pages 7-10 (paragraphs 17 -22) of the Reply Brief. By the said reply brief, it is argued to the conclusive effect that having shown that the Writ of Summons was incompetent and defective, it could not have been validly salvaged by an amendment. See OLAGBENRO VS. OLAYIWOLA (2014) 17 NWLR (PT. 1436) 313.
On the whole, the Court is urged to discountenance the 1st Respondents argument and set aside the decision of the Court below, as same was purportedly commenced by a incurably defective process.
I have accorded a critical albeit dispassionate regard upon the nature and circumstances surrounding the instant (interlocutory) appeal, the submissions of the Learned Counsel in their respective Briefs of Argument vis-a vis the Record of Appeal, as a whole.
In view of the 1st Respondent’s Preliminary Objection raised in the said brief thereof, I have deemed it imperative to first
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and foremost deal with same before proceeding to determine the appeal on the merits.
DETERMINATION OF THE 1ST RESPONDENT’S PRELIMINARY OBJECTION.
By the Notice of Preliminary Objection thereof, the 1st Respondent has challenged the competence of the instant Notice of Appeal on 5 grounds, thereby urging upon the Court to strike out or dismiss the appeal.
The 1st Respondent objection in the brief thereof is predicated upon the proposition that in view of the fact that Judgment has already been delivered in the substantive matter, the present interlocutory appeal has thus become speculative, spent, academic and an abuse of Court process.
Instructively, the provisions of paragraph 3 of the Court of Appeal Practice Direction, 2013, upon which the 1st Respondent relied, are to the following effect.
“3. (a) the presiding Justice of each Division in conjunction with the Deputy Chief Registrar of the Division, shall ensure that their various registries give priority to the listings consideration and determination of all applications and substantive appeals to the items listed in (i) below in respect of the Rulings and Judgment (sic)
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of the Court below related thereto.
(i) All Criminal Appeals originating or (sic) involving the EFCC, ICPC of any other statutorily recognized prosecutorial agency or person, or where the offence relate to Terrorism Rape, kidnapping, Corruption, money laundering or human trafficking;
(ii) Interlocutory appeals challenging the ruling of the Court below on an interlocutory application heard in that Court”
On the other hand, the provisions of paragraph 10 of the Court of Appeal Practice Direction (supra) equally relied upon by the 1st Respondent, are to the effect:
“10 (a) … in the determination of appeals arising from interlocutory decisions of the Court below in respect of any of the matters listed in 3 above, the Court, shall give priority to those matters and where possible hear such matters, on a day (sic) basis until final determination.
(b) Without prejudice to any one of the foregoing, the Court shall refuse (sic) to hear appeals arising from such interlocutory decisions of the Court below where the matter deals (sic) with any of the issues listed in 3 above and the Court is of the opinion that the grounds
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raised in the appeal are such that the Court (sic) can conveniently be determined by way of an appeal arising from the final Judgment of the Court below provided that where the grounds of the appeal deal with issues of pure law, the Court may exercise discretion and determine it expeditiously.
(c) In the case of any such interlocutory appeals stated in ‘b’ above this (sic) Court shall order the Court blow to accelerate hearing in the substantive suit”
In the instant case, as at the very material time the interlocutory appeal was heard. On 18/03/2020, resulting in reserving Judgment, the suit (PHC/1376/2005) from which the said appeal emanated had already been determined by the Court below on 31/07/20017. That being the case therefore, there is nothing subsisting before the Court below that would warrant, compel or necessitate the Court of Appeal to “Order the Court below to accelerate hearing in the substantive matters,” as required by paragraph 10 (c) of the Court of Appeal Practice Direction, 2013 (Supra).
Secondly, by virtue of paragraph 10 (b) of the Court of Appeal Practice Direction, 2013 (Supra), it is
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provided by way of proviso to the effect:
“Provided that where the grounds of the appeal deal with issues of pure law the Court may exercise discretion and determine it expeditiously.”
The instant interlocutory appeal, as alluded to herein above, is predicated upon three grounds:
GROUND 1
The Lower Court erred in law and thereby arrived at a wrong decision when it dismissed the Appellants’ Notice of Preliminary Objection filed on 02/12/2016.
ERROR:
I. The Respondents Writ of Summons and Statement of Claim filed on 11/08/2005 were both signed by an unidentified/unknown person for and on behalf of FAOSO ESQ, SAN yet the Lower Court dismissed the Appellant’s Preliminary Objection which challenged the competence (sic) these processes.
II. The Attention of the Lower Court Judge was drawn to several decisions of the Supreme Court and this Honourable Court, including SLB CONSORTIUM LTD Vs. NNPC (2011) 9 NWLR (Pt. 1252) 317… which decide that Court process signed by unnamed proxies are incompetent and cannot be remedied by reliance on the saving provisions of the Rules of Court…
III. The
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Lower Court Judge violated the Rule of stare decisis by overworking the decisions of the Supreme Court and Court of Appeal so much have clearly settled the question of the legal effect of signing Court processes by unknown proxies and in so doing fall into grave error of law.
GROUND 2:
The Lower Court erred in law and thereby reached an erroneous decision when it granted the Respondents application to amend his Writ of Summons and Statement of Claim.
PARTICULARS OF ERROR
I. The Respondents Writ of Summons and Statement of Claim were incurably incompetent.
II. The Lower Court refused to be bound by the decision of the Supreme Court in SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR (PT. 1252) 317.
III. The decision of the Lower Court granting Leave to the Respondent to amend his Writ of Summons and Statement Claim is contrary to existing case law in Nigeria and therefore wrong.
IV. The Lower Court decision granting Leave to the Respondent to amend his incompetent Writ of Summons and Statement of Claim is contrary to the time honoured principle of judicial precedent totally wrong and deserving of being set aside.
GROUND 3
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The Lower Court erred in law undoubtedly, both grounds 1 and 2 upon which the Notice of Appeal is crucially predicated are pure grounds of law within the purview of the provisions of paragraph 10 (b) of the Court of Appeal Practice Direction, 2013 (Supra). The two are cases of OLALE V. EKWELENDU (1989) 4 NWLR (PT.115) 328 AND NWORA V. NWABUEZE (2011) 17 NWLR (PT. 1277) 699 are undoubtedly inapplicable to the instant case. Neither could the instant case be characterized as speculative spent or academic within the doctrine espoused in the case of ODEDO VS. NEC (2008) 17, NWLR (PT.1117) 554.
In the course of administering justice to the parties before it, a Court has an onerous duty to ensure that valuable time of the Court and indeed of the parties themselves is not unduly delayed. Thus, the Court, must do everything possible within its judicial powers to save time and costs of litigation in matters before it.
It was aptly held by the Apex Court in the case ofARAKA VS EGBUE (2003) 17 NWLR (PT.848).
This appeal has once again brought to the fore the filing of appeals of an interlocutory nature. While the parties have exercised their
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constitutionally not much could have been lost if the issue before us was taken at the end of the case together with any other ground or grounds of appeal if the Respondent lost out at the end. The action was filed in October, 1985 and we are still on an interlocutory appeal about eighteen years after, I am not saying that the Respondent was wrong in exercising this Constitutional Right of appeal, I cannot say that. But the point I am making is that a little discretion would have taken this matter lesser period in that Court.
Per Niki Tobi JSC at 22-22.
In my considered view, the instant appeal could not by any stretch of imagination, be deemed speculative, spent, or academic, within the purview of the authoritative principle espoused in the case of ODEDO VS. INEC (2008) 17 NWLR (PT. 1117) 554. And I so hold.
Against the backdrop of the foregoing postulations, it is rather obvious that the 1st Respondent’s Preliminary Objection is lacking in merits, and same is hereby discountenanced and dismissed by me.
Thus, having effectively dismissed the 1st Respondent’s Preliminary Object, I have considered it imperative to proceed to
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determine the appeal on the merits, on the basis of the Appellant’s two issues.
DETERMINATION OF THE INTERLOCUTORY APPEAL ON MERITS
Most instructively, as copiously alluded to herein above, the first issue raises the very vexed question of whether or not considering that the 1st Respondent’s Writ of Summons, and Statement of Claim were signed by an unidentified/unknown person for and on behalf of F. A. Oso (SAN), the Court below was right in law when it dismissed the Appellant’s Notice of Preliminary Objection challenging the competence of the suit before the Court below. The first issue is distilled from ground 1 of the Amended Notice of Appeal.
In the locus classicus on the ever recurrent fundamental issue of jurisdiction; MADUKOLU VS. NKEMDILIM (1962) SCNLR 341, the Supreme Court was recorded to have held that a Court of law is competent to adjudicate upon a matter before it, when:
(1) It is properly Constituted as regards numbers and qualification of members of the bench and no member (thereof) is at is qualified for any reason whatsoever; or
(2) The subject matter of the case is within its jurisdiction and there is
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no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) The case comes before the Court limited by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided the defect is extrinsic to the adjudication.
Per Bairamian JSC.
Interestingly, ever since Bairamian, JSC enunciated the foregoing immutable doctrine in MADUKOLU VS. NKEMDILIM (Supra), the issue of Jurisdictional competence of Courts of law has become a fundamental jurisprudential equation in the Nigerian judicial administration system.
Due to the poignant and complex nature thereof, the issue of jurisdiction is not merely important but fundamental. Thus, once raised by a party in a case, it behooves the Court seized of the matter to consider and determine the question of jurisdiction first and foremost before delving into the substantive matter on the merits. Indeed, the issue of jurisdiction can be raised at any stage of the Court’s proceedings be it the trial or Appellate Court even up to the
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highest judicial hierarchy, the Supreme Court. As authoritatively held by the Apex Court itself: –
The issue of jurisdiction is fundamental and the law is trite that it can be raised by a party at any stage at Courts proceedings, even at the level of the Supreme Court. It is however ideal that it be raised at the earliest stages of proceedings to avoid the necessary waste of time, which the Defendant has done on the instant case. When issue of jurisdiction is raised at the stage was raised in this case, the Court must carefully peruse the Writ of Summons and the statement of claim to consider whether it has jurisdiction to entertain and determine the matter.
SeeADETONA VS. TGELE GENERAL ENTERPRISES LTD (2011) LPELR – SC 237/2005 per Mukhtar, JSC (later CJN) at 38 – 39 paragraphs G – A; DURWODE VS. STATE (2000) 15 NWLR {Pt. 691} 467; OTUKPO VS. JOHN (2000) 8 NWLR {Pt. 669} 507; ADEYEMI VS. OPEYORI (1976) 10 SC. 31; AREMO II VS. ADEKAIYE (2007) 13 NWLR {Pt. 891} 571.
Most certainly, the issue of jurisdiction needs not be overemphasized, at all. This is so, because the jurisdiction of the Court of Appeal to entertain, hear
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and determine appeals from the Courts below is fundamentally predicated upon the jurisdiction of the said Courts below to hear and determine the matters before them in the first instance.
The far reaching significance of issue of jurisdiction was comprehensively illustrated by the Apex Court in a plethora of authorities, not least of which was the case of SLB CONSORTIUM LTD VS. NNPC (2011) 9 NWLR (1252) 314. Indeed, that was the case in which an objection was raised at the hearing of the appeal before the Apex Court, to the effect that the Originating Processes filed in the trial Court, was incompetent, having been signed by a Counsel firm instead of a qualified Legal Practitioner, in accordance with the mandatory requirement of the Rules of the Federal High Court and the decision of the Apex Court in the case of OKAFOR VS. NWEKE (2007) 3 SC {Pt. 11} 55 at 62 – 63.
It was argued in that case, that the Appellant was deemed to have waived his right to complain not having raised the objection at the earliest opportunity before the trial Court. The Supreme Court held:
The argument that the objection ought to have been taken before the trial
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Court aid that it is rather to take in the day to raise same in this Court particularly as the Respondents had taken steps on the proceedings after becoming aware of the defect or irregularities is erroneous because the issue involved in the objection is not a matter of irregularity in procedure but of substantive law and issue of jurisdiction of the Courts to hear and determine the matter as constituted and it is settled law, which has been conceded by both Counsel in their proceedings that an issue of jurisdiction is fundamental to adjudication and can be raised at any stage in the proceedings even for the jurist time in the Supreme Court.
Per Onnoghen, JSC (as he then was) at 332 – 333 paragraphs G – B; APGA VS. ANYANWU (2014) LPELR – SC. 20/2013 per Kellere-Ekwu JSC at 28 – 29 paragraphs A – E.
In the instant case, the borne of contention was the two Originating Processes – the Writ of Summons and the Statement of Claim – contained at pages 1 – 3 and 5 – 8, respectively of the record of appeal. Most particularly, at page 2 of the said Record, the Writ of Summons was signed thus: -<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
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…This writ was issued by F. A. OSO Esq. (SAN) Legal Practitioner of Fatai Aremu OSO (SAN) & Co. of No. 2 Rail Crescent (Abobiri Street) Port Harcourt Rivers State for the said Plaintiff. Dated this 11th day of August, 2005.
(SIGNED)
For: F. A. OSO Esq.
(SAN)
Fatai Aremu Oso (SAN) & Co.
No. 2 Rail Crescent, Port Harcourt.
Again, at the foot of the Statement of Claim (page 8 of the Record), the same scenerio of endorsement was replicated, viz:
“Dated at Port Harcourt this 11th day of August, 2005.
(SIGNED)
For: F. A. OSO Esq.
(SAN)
Fatai Aremu Oso (SAN) & Co.
No. 2 Rail Crescent, Port Harcourt.
It is crystally obvious, on the face of the record of appeal, that an unknown and unidentified person had actually signed both the Writ of Summons and the Statement “For – F. A. Oso Esq. (SAN)”. There is no doubt about that fact, at all. The pertinent question is – what then is the implication of the person unknown to law signing the originating processes in question on behalf of the “F. A. Oso Esq. (SAN) of Appellant’s Counsel? The answer in my
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opinion is not far-fetched.
In the instant case, the fact that the unknown and unidentified person purportedly signed the two originating processes for and on behalf of the 1st Respondent’s (Plaintiffs) Counsel – F. A. Oso Esq. (SAN)”, is not at all controversial. Yet, by virtue of the Provisions of Section 2(1) of the Legal Practitioners Act Cap. 207, Laws of the Federation, 1990: –
Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.
From the foregoing provisions of the Legal Practitioners Act (Supra), it is very obvious that the only person, without any exception, entitled to practice as a legal Practitioner in Nigeria ought to have had his “name on the roll”. The Act does not say or state that his signature must be on the roll, but rather the name thereof.
What’s more, Section 24 of the Legal Practitioners Act (supra) defines “a Legal Practitioner” to be: –
[A] person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either
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generally or for the purpose of any particular proceeding.
It was aptly held in OKAFOR VS. NWEKE (2007) 10 NWLR {Pt. 1043} 521; (2007) 3 SC {Pt. 11} 55; (2007) LPELR – SC. 27/2008 that: –
The combined effect of the above provisions (Sections 2(1) and 24 of the Legal Practitioners Act) is that for a person to be qualified to Practitioner he must have his name in the roll otherwise he cannot engage in any form at Legal Practice in Nigeria.
Per Onnoghen, JSC (as the Learned Lord then was) at 10 – 12 paragraphs D – A.
In arriving at the foregoing conclusion, the Apex Court took in to account the issue of substantial justice, which is balanced on the scale of justice of the need to arrest the current embarrassing trend in Legal Practice in regard to authentication or franking of legal Court process for filing in the Courts have been treated with levity. It was accordingly held by the Apex Court: In OKAFOR VS. NWEKE (supra):
Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples.
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We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country.
The law exist it as a guide for actions needed for the practice of the law not to be twisted and turned to same whatever purpose, legitimate or otherwise which can only but result in embarrassing the profession if encouraged. It is rather the fortunate that the offending processes originated from the hallowed chambers of a Learned senior advocate at Nigeria who did not even see them as improper and unacceptable but went on and on to argue that the documents, which in law are supposed to speak for themselves, actually told a lie as to their authentication.
Per Onnoghen, JSC (as he then was) @ 12 – 13 paragraphs E – B.
In the instant case, as postulated herein above, the unknown or unidentified person that purportedly signed the two originating processes undoubtedly could have been anybody else than the Appellants’ Counsel, “F. A. Oso Esq. (SAN)”. The Apex Court while interpreting the provisions of Sections 2(1) and 24 of the Legal Practitioners Act (Supra), in the case of
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SLB CONSORTIUM LTD VS. NNPC NIG. PLC (2011) 9 NWLR {Pt. 252} 317, aptly surmised:
What then is so important about the way Counsel chooses to sign processes? Once it cannot be said who signed a process, it is incurably bad and the rules of Court that seen to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioners Act). All processes filed in Court are to be signed as follows: –
First the signature of Counsel, which may any contraption.
Secondly, the name of Counsel clearly written.
Thirdly, who Counsel represents.
Fourthly, name and address of Legal Firm.
In this suit the originating summons was signed but there was no name of Counsel. The position is that there must be strict compliance with the law…
In this case there is signature of Counsel, but no name of Counsel. A signature without the name is incurably bad.
Per Rhodes Vivour, JSC.
It ought to be reiterated, that despite the unmistakable and rather compelling decision of the Supreme Court in SLB CONSORTIUM LTD VS. NNPC NIG PLC (Supra) et al, the Court below came to the contrary decision at page 49, lines 11
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– 15 of the Records: –
The cases cited are relevant to the Writ of Summons filed after the 2006 and 2010 Rules of Court came into force. From the provisions of the 1987, 2006 and 2010 Rules as set out herein, the 1987 Rules under reference, did not make it mandatory, and render the processes filed incompetent, even if same was signed by a proxy, as there is no requirement for signing of the writ by a Legal Practitioner under the 1987 Rules of Court in Rivers State.
Most regrettably, the foregoing finding of the Court below is at variance with the true position of the law as authoritatively enunciated by the Supreme Court, and dutifully followed by the Court of Appeal, in a plethora of authorities. See ONWARD ENTERPRISES LTD VS. OLAM INTERNATIONAL LTD (2010) All FWLR {Pt. 531} 1503 at 1513 paragraphs A – F., POAR MORCTANT BANK LTD VS. NDIC (2010) Appeal No. CA/572/05 delivered on 14/05/2010.
Against the backdrop of the foregoing a far-reaching postulations, the first issue ought to be, and name is hereby resolved in favour of the Appellant.
ISSUE NO. 2
The second issue as copiously alluded to above, raises the question of
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whether or not the Court below was right, when it granted the 1st Respondent leave to amend his originating processes which were signed by an unidentified/unknown person. The second issue is distilled from ground 2 of the Notice of Appeal.
In my considered opinion, having effectively resolved the first issue in favour of the Appellant, there is no gainsaying the fact that the second issue ought to be answered in the negative and equally resolved in favour of the Appellant, for some obvious reasons.
As aptly argued by the Appellant, the 1st Respondent cannot by an application for amendment, seek to cure the defect inherent in the originating processes (i.e. the writ of the summons and statement of claim) both of which have been adjudged under the first issue to be grossly defective and thus incompetent.
Indeed, the law is well settled, that an invalid or incompetent originating process cannot, by any stretch of imagination, be saved or cured vide the instrumentality of purported amendment. SeeEMECHETA VS. OGUERI (1998) 12 NWLR {Pt. 579} 502 at 515 paragraphs F – G. SLB CONSORTIUM LTD VS. NNPC (2011) 9 NWLR {Pt. 1252} 317 at 337 paragraphs
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G – H., PAP VS. EKEAGBARA (2016) LPELR – 40849 (CA).
In the circumstances, the second issue ought to be, and it is hereby answered in the negative, and equally resolved in favour of the Appellant.
Hence, having resolved both issues in favour of the Appellant, the appeal resultantly succeeds, and it is hereby allowed by me.
Consequently, the interlocutory ruling of the Rivers State High Court Port Harcourt, delivered by A. H. Aprioku, J., on October 11, 2016 in the Suit No. PHC/1376/2005, is hereby set aside. The Suit in question is hereby struck out for being incompetent.
The Appellant shall be entitled to cost of N50,000.00 against the 1st Respondent.
TUNDE OYEBAMIJI AWOTOYE J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother I. M. M. Saulawa, J.C.A.
I am in full agreement with the sound reasoning and conclusion therein
I agree both issues thrown up in this appeal should be resolved in favour of the Appellant for the brilliant reasons adduced In the leading judgment. Counsel should exercise great care in drafting the originating process in an action as If the
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originating process is found to be incompetent the entire case of the Plaintiff is incurable and fatally infected. The consequence is the entire case of the concerned party collapses like a pack of cards. I abide by the consequential orders in the lead judgment (cost inclusive).
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have had the benefit of reading in draft the judgment as delivered by my learned brother I. M. M. SAULAWA, JCA. I agree entirely with his analysis of the issues raised and conclusion reached therein.
The appeal succeeds and it is allowed by me. To this end, I too shall set aside the interlocutory ruling of the Rivers State High Court, Port Harcourt, delivered by A. H. Aprioku, J. on October 11, 2016 in suit No. PHC/1376/2005. The case in question for being a nullity is struck out by me also.
I abide by his Lordship’s order as to costs.
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Appearances:
T.J. Krukrubo, Esq., with him, S.M. Tsado, Esq. For Appellant(s)
K.O. Fatai-Oso, Esq., for the 1st Respondent.
R.F. Diete-Spiff, Esq. for the 2nd & 3rd Respondents For Respondent(s)