IBEZIAKO v. IBEZIAKO
(2020)LCN/14454(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Friday, July 10, 2020
CA/E/98/2019
RATIO
PLEADINGS: ORIGINATING PROCESS – failure to sign, consequences.
The grouse of the Appellant under this issue is that the originating process i.e. the writ of summons was not signed by the Respondent or by her legal representative as mandated under the provision of Order 6 Rule 3 of the Enugu State High Court (Civil Procedure) Rules. The aforementioned provision of the Rules of the trial Court provides as follows:
“1. Originating process shall be prepared by the plaintiff or his Legal Practitioner, and shall be clearly printed on good quality paper.
2. (1) The Registrar shall seal every originating process, whereupon it shall be deemed to be issued.
(2) A plaintiff or his Legal Practitioner shall, on presenting any originating process for sealing, leave with the Registrar as many copies of the process as there are defendants to be served plus extra copies for the Court and registry use.
(3) Each copy shall be signed by the Legal Practitioner or by a plaintiff where, if a natural person, he sues in person, and shall be certified after verification by the registrar, as being a true copy of the original process filed.” (Underlining mine for emphasis).
Judicial authorities of this Court and the Apex Court are in abundance on the effect of an unsigned originating process. The originating process in this case is the writ of summons which is the foundation of the action. The failure of a party to sign an originating process borders on the competence of the matter and by implication, the jurisdiction of the Court below in entertaining the case in the first place. At pages 1 to 2 of the record, is to be found the writ of summons The position at law is that an unsigned writ of summons is out rightly void and not even a subsequent Amended writ could effect a cure to it. It is void and remains void and nothing can be added to it. See NZOM & ANOR vs. JINADU (1987) LPELR –2143 (SC). The consequence of a void writ of summons is that the case it has acted as an initiating process remains incompetent and that this deprives the Court of the jurisdiction to entertain same. The position is that among other things, for a case to be competent it has to be initiated by due process of law as a condition precedent without which the Court cannot exercise its jurisdiction. See LADO V. CPC (2011) LPELR – 8254 (SC). It is important to perhaps, draw attention to the fact that the effect of an unsigned initiating process was discussed by the apex Court in the case of OMEGA BANK NIG PLC V. O.B.C LTD (2005) LPELR – 2636 (SC), where the old sage, per NIKI TOBI, JSC had this to say;
“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.”
The failure therefore to commence proceedings with a valid writ of summons is an infraction, which clearly borders on the question of jurisdiction and the competence of the Court to adjudicate on the matter. See the case of KIDA vs. OGUNMOLA (2006) LPELR-1690 SC. Where the law expressly provides for the doing of a thing, failure to comply with such provisions in the course of commencement of a suit is fatal to such action. Per ABUBAKAR SADIQ UMAR, JCA
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
PROFESSOR DR. STEPHEN MBANEFO IBEZIAKO APPELANT(S)
And
(MRS) VERONICA NNEKA NDIDI IBEZIAKO RESPONDENT(S)
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Enugu State in the Nsukka Judicial division delivered by H. O. EYA J. on 10th October, 2018 wherein the learned trial judge granted the claims of the Respondent as Plaintiff against the Appellant as Defendant.
The Respondent as Plaintiff filed the suit which is the subject of the instant appeal against the Appellant as Defendant at the Court below claiming for the following reliefs:
“1. A declaration that the Plaintiff is entitled to common/joint ownership of:
i. Life Interest in No. 1 Ibeziako Street, Nsukka
ii. No. Ibeziako Street Onuiyi Road, Nsukka
iii. Chibuzo Ibeziako Estate, 8A Onuiyi Road, Nsukka
iv. Ojinaka Ibeziako Estate, 22C University Market Road, Nsukka
v. The University Motel Nsukka
2. Injunction restraining the defendant by himself, agent, servant and/or privy from alienating the common/joint owned properties stated herein without consent and authority of the plaintiff.”
(See page 5 of the record of appeal)
The Respondent in proof of her claims testified as sole
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witness while the Appellant testified in his defence. Upon the close of trial and final addresses of counsel, the learned trial Judge in a considered judgment delivered on 10th October, 2018 granted reliefs 1 (i), (ii), (iii), (iv) and 2 of the Respondent’s claims. (See pages 154 – 168 of the record of appeal).
Dissatisfied with the turn of events, the Appellant invoked the appellate jurisdiction of this Court vide a Notice of appeal dated 4th January, 2019 and filed on 8th January, 2019. The said Notice of appeal containing six grounds of appeal can be found at pages 169 – 175 of the records of appeal.
In line with the Rules of this Court, parties filed and exchanged their respective briefs. The Appellant’s brief of argument is dated 7th March, 2019 and filed on 8th March, 2019. The Appellant also filed a Reply Brief dated 26th August, 2019 and filed on 20th September, 2019. Both Briefs were settled by CHIEF IKENNA EGBUNA (SAN) who at paragraph 2 of the Appellant’s brief of argument formulated four issues for determination to wit:
“1. Whether the learned trial judge had jurisdiction to entertain and determine
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a suit that was commenced without due process of law.
2. Whether the decision of the learned trial judge is not against the weight of evidence led at the trial.
3. Whether the Respondent proved her entitlement or title to the property subject matter of this suit.
4. Whether there existed the property subject matter of this case as at the time the suit was commenced at the trial Court.”
The Respondent’s brief on the other hand is dated 1st August, 2019 and filed on 6th August, 2019. The said brief was settled by D. C. EKWEALOR ESQ. who at page 2 of the brief merely adopted the issues formulated by learned senior counsel to the Appellant.
The appeal was heard on 9th June, 2020 wherein counsel adopted their respective briefs and made oral submissions in support of their contentions in the appeal.
APPELLANT’ ARGUMENTS AND SUBMISSION
On issue No. 1 distilled by the Appellant, counsel submitted that the suit which is the subject of the instant appeal was not commenced by due process of law and as such, the trial Court lacked the jurisdiction to entertain same. He submitted that the writ of summons was not
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signed by counsel representing the Respondent nor was it signed by the Respondent herself in accordance with Order 6 Rule 1 and 2 of the High Court (Civil Procedure) Rules of Enugu State (2006). He argued that noncompliance with the issue of signing of writ of summons being an originating process robs the Court the jurisdiction to entertain the suit. He referred the Court to the case of MADUKOLU & ORS V. NKEMDILIM (1962) ALL NLR Pt. 2 page 581 at 589 – 590.
On issue No. 2, counsel argued that the law is settled that in a civil case, the standard of proof is on the preponderance of evidence. He referred the Court to Section 133(1) of the Evidence Act, 2011. Counsel submitted that the witness deposition that accompanied the statement of claim of the Respondent was not adopted as the deponent; one Oby Agu was not called to testify at trial. He submitted further that the evidence given by the Respondent was as to the facts pleaded by the Respondent in her reply to the Statement of defence only. It is the submission of counsel that the deposition of the Respondent did not cover any of the facts pleaded in the statement of claim, including the
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reliefs sought. Relying on the cases of OLUYEDE V. ACCESS BANK PLC (2015) 17 NWLR (Pt. 1489) Pg. 596; SALISU V. AMUSAN (2011) 18 WRN 135, Counsel argued that the law is settled that facts pleaded without evidence go to no issue and the Court will not countenance those pleaded facts. Counsel therefore submitted that the trial Court erred to have held that the Respondent proved her case upon the preponderance of evidence when there was no evidence adduced by the Respondent in support of her claims.
On issue No. 3, learned counsel to the Appellant adopted all his arguments and submissions under issue No. 2 and submitted further that the Respondent’s claims to joint ownership of the Appellant’s real estate at Nsukka cannot first and only be pleaded in the reply to the statement of defence and evidence given only in respect of facts pleaded in the reply to the statement of defence. On the ways of proving title to land, counsel referred this Court to the cases of IDUNDUN V. OKUMAGBA (1976) 10 SC 227; THOMPSON V. AROWOLO (2003) 7 NWLR (PT. 818) PAGE 163. Also on the modes of acquiring title to land, he referred the Court to the cases of OPOTO V. ANAUN
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(2016) 16 NWLR (PT. 1539) PAGE 437; AJIBOYE V. ISHOLA (2006) 13 NWLR (PT. 998) and submitted that the Respondent did not prove any of the above factors to entitle her to the claim of joint ownership of the Appellant’s real estate. It is the argument of counsel that the law is settled that a claimant in an action for declaration of title to land must establish his entitlement to same on the strength of his own case and not on the weaknesses of the adversary’s case. He relied on the case of AIYEOLA V. PEDRO (2014) 13 NWLR (Pt. 1424) page 409.
On issue No. 4, it is the submission of counsel that the Respondent who claimed entitlement to the Appellant’s real estate must do so by leading credible evidence and that the Appellant is not duty bound in law to disprove what the Respondent has not proved. Counsel referred to paragraph 17 and 18 of the statement of defence wherein the Appellant pleaded to have sold the property claimed by the Respondent and that her claim over same was odious and speculative. He submitted that the Respondent in her reply to the averment of the Appellant in this regard simply replied that any such sale is void where
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it had happened and that no facts were pleaded to show the existence of the said property, neither was any such evidence led at the trial to buttress the existence of the property.
It is the submission of counsel that a case cannot be contested on the bases of the facts in the statement of defence and reply to the statement of defence and evidence led thereto without evidence on the statement of claim.
On the whole, counsel urged the Court to resolve all the issues in favour of the Appellant and allow the appeal.
RESPONDENT’S ARGUMENTS AND SUBMISSIONS
On whether the suit was initiated by due process of law, counsel to the Respondent submitted that the writ of summons of the Respondent was concluded at page 3 of the record of appeal. He submitted further that the same page carries the claims against the Appellant, Respondent’s counsel’s name, address, phone number, signature and the address of the Appellant for service.
It is the submission of counsel that if page 3 of the record of appeal is removed from the writ of summons of the Respondent, then there is no writ of summons and as such page one of the writ of
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summons cannot be separated from page 3 of the writ of summons. It is the contention of counsel that the complaint of the Appellant on the competence of the writ of summons is not enough reason to invalidate same. He referred the Court to Section 168 (1) of the Evidence Act, 2011 and argued that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. He cited the case of OYAKHIRE V. THE STATE (2007) ALL FWLR (PT. 344) 1 SC AT 11 – 12.
Counsel submitted that the writ of summons and other originating processes were duly signed by the Respondent’s counsel because page 3 of the record of appeal is part and conclusion of the writ of summons.
On whether the decision of the trial judge is against the weight of evidence, counsel to the Respondent submitted that the evidence of the Respondent as sole witness was sufficient to establish her claim against the Appellant. He submitted further that in the statement of claim, all the facts upon which the Respondent obtained judgment in her favour were clearly pleaded. It is the submission
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of counsel that the Respondent was hospitalized when the suit was filed consequent upon which she wanted the said Oby Agu to testify on her behalf. That upon her recovery, the Respondent adopted her comprehensive statement on oath that covered all the facts pleaded, documents and reliefs sought against the Appellant. He referred the Court to pages 49 – 53 of the record of appeal.
On issue No. 3, counsel to the Respondent submitted that the Respondent proved her joint ownership with her the Appellant over the property by their statutory marriage, by acts of ownership, by acts of long possession and enjoyment of the land and by assigning part of the property as joint owners. Counsel submitted further that the parties got married statutorily in 1977 and they acquired the properties as joint owners while the Respondent was actively managing the properties which were named after their biological children except the University Motel. He referred the Court to ‘Exhibit B’, which is the deed of assignment of part of the property and submitted that the said exhibit is clear that the Respondent and the Appellant are joint owners of the properties.
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According to counsel, the Appellant admitted that his elder brother one Barrister Akunne prepared Exhibit ‘B’ and that he signed as joint assignor. He referred the Court to page 124 of the record of appeal.
On issue No. 4, counsel adopted his submissions and arguments under issue No. 3 above and submitted further that the Appellant being a joint owner with the Respondent cannot sell or alienate any of the properties without the consent and participation of the Respondent. He submitted that at trial, the Appellant who knows the legal implication of the purported sale did not adduce evidence regarding the said sale. He urged the Court to resolve the issues in favour of the Respondent and dismiss the appeal for lacking in merit.
APPELLANT’S REPLY
In his reply brief, counsel to the Appellant submitted that the process contained at page 3 of the record of appeal is a document titled “claim” signed by the Respondent’s counsel. He submitted further that the said process has the heading of the Court and the names of parties making it obvious to be a separate process which does not form a continuous part of the writ
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of summons contained at pages 1 to 2 of the record of appeal. He referred the Court to Order 3 Rules 2 and 3 of the High Court of Enugu State (Civil Procedure) Rules and submitted further that in the provision for the use of writ of summons and the forms the writ is to take, there was no mention of what is called “claim” as an originating process, or a complement thereto. He argued that where the law expressly provides for the doing of a thing, failure to comply with such provision in the course of commencement of a suit is fatal to such an action. He referred the Court to the case of NWANKWO V. YAR’ADUA (2010) 45 WRN 1. It is the submission of counsel that such failure will rob the Court of the jurisdiction to entertain the suit as the action has been commenced without due process of law.
Replying to the Respondent’s submission and arguments on issue No. 2, counsel to the Appellant submitted that a statement of claim cannot rightly be proved by evidence contained in a further statement on oath made in furtherance to the facts pleaded in the Respondent’s Reply to the Statement of defence.
On issue No. 3 and 4, counsel
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to the Appellant by way of Reply submitted that contrary to the Respondent submission that the marriage between the parties is enough to suggest joint ownership, the Respondent did not and has not discharged the burden of proof on her by leading evidence to show that she is a joint owner of all the properties in the suit. He submitted further that there is no evidence to suggest that she contributed towards the purchase of the disputed properties. It is the contention of counsel that the law does not require the Appellant to disprove what the Respondent has not proven. He referred the Court to the excerpt of the decision of the trial Court at page 167 lines 11 – 12 of the record of appeal. Counsel submitted that the Appellant did not admit any fact of the Respondent as far as co-ownership was concerned. He submitted further that Exhibit “B” does not suggest joint ownership of all the properties in issue and that said exhibit only relates to a faction of one of the many properties in this case. It is his submission that the recital of Exhibit “B” does not capture who or when it was acquired by either of the parties and so proves
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nothing for the Respondent’s assertion. He submitted that the said exhibit was tendered as a receipt and not a title document and that the law is settled that it cannot therefore be used to establish title over a property. He cited the case of WARIGBELEGHA V. OWERRE (2012) 3 NWLR (PT. 1288) PAGE 153 AT PARA. G – H.
RESOLUTION OF ISSUES
I have read through the pages of the record of appeal before this Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. I am of the view that the issues stated below are apt for the determination of the appeal:
1. Whether the suit was commenced through due process of law to confer the trial Court with the jurisdiction to entertain same?
2. Whether the learned trial judge properly evaluated the evidence before it in reaching the decision that is being challenged now on appeal?
RESOLUTION OF ISSUE NO. 1
The grouse of the Appellant under this issue is that the originating process i.e. the writ of summons was not signed by the Respondent or by her legal representative as mandated under the provision of
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Order 6 Rule 3 of the Enugu State High Court (Civil Procedure) Rules. The aforementioned provision of the Rules of the trial Court provides as follows:
“1. Originating process shall be prepared by the plaintiff or his Legal Practitioner, and shall be clearly printed on good quality paper.
2. (1) The Registrar shall seal every originating process, whereupon it shall be deemed to be issued.
(2) A plaintiff or his Legal Practitioner shall, on presenting any originating process for sealing, leave with the Registrar as many copies of the process as there are defendants to be served plus extra copies for the Court and registry use.
(3) Each copy shall be signed by the Legal Practitioner or by a plaintiff where, if a natural person, he sues in person, and shall be certified after verification by the registrar, as being a true copy of the original process filed.” (Underlining mine for emphasis).
Judicial authorities of this Court and the Apex Court are in abundance on the effect of an unsigned originating process. The originating process in this case is the writ of summons which is the foundation of the action. The failure of a party to sign an
14
originating process borders on the competence of the matter and by implication, the jurisdiction of the Court below in entertaining the case in the first place. At pages 1 to 2 of the record, is to be found the writ of summons. A close examination of the said writ of summons shows that it was not signed either by the Respondent as Plaintiff or her Counsel. This Court has also closely examined the reaction of Respondent’s Counsel on the question of failure to sign the writ of summons and the Respondent counsel on the other hand argued vehemently that the writ of summons was concluded with page 3 of the record of appeal and that the said page carries the claim against the Appellant as defendant, the Respondent’s name, address, phone number, signature and the address of the Appellant for service.
The question that settles the issue in controversy is whether the said document at page 3 of the record of appeal can be considered as a part of the writ of summons or the concluding part of same?
The document at page 3 of the record of appeal is titled “CLAIM”. It has a separate heading of Court and just beneath the Suit No., the
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following was boldly written in capital letter:
“THE REGISTRAR KINDLY ISSUE A WRIT OF SUMMON AT THE INSTANCE OF THE PLAINTIFF AGAINST THE DEFENDANT.”
The document contained at page 3 of the record of appeal was signed by one D. C. EKWEALOR ESQ and same is dated 16th February, 2016. I am of the opinion that the said document contains a directive given to the Registrar to issue a writ of summons against the Appellant and cannot be seen or inferred to be part of the writ of summons. I agree with the submissions of the Appellant’s counsel at paragraph 2.4 of the reply brief that the Respondent prepared and signed a document titled “claim” which is unknown to law instead of signing the writ of summons. I also agree with his submission that such unilateral departure from the rules of Court cannot by any stretch of imagination be construed to mean compliance with the law.
The position at law is that an unsigned writ of summons is out rightly void and not even a subsequent Amended writ could effect a cure to it. It is void and remains void and nothing can be added to it. See NZOM & ANOR vs. JINADU (1987) LPELR –
16
2143 (SC). The consequence of a void writ of summons is that the case it has acted as an initiating process remains incompetent and that this deprives the Court of the jurisdiction to entertain same. The position is that among other things, for a case to be competent it has to be initiated by due process of law as a condition precedent without which the Court cannot exercise its jurisdiction. See LADO V. CPC (2011) LPELR – 8254 (SC). It is important to perhaps, draw attention to the fact that the effect of an unsigned initiating process was discussed by the apex Court in the case of OMEGA BANK NIG PLC V. O.B.C LTD (2005) LPELR – 2636 (SC), where the old sage, per NIKI TOBI, JSC had this to say;
“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.”
The failure therefore to commence proceedings with a valid writ of summons is an infraction, which clearly borders on the question of jurisdiction and the competence of the Court to adjudicate on the matter. See the case of KIDA vs. OGUNMOLA (2006) LPELR-1690 SC. Where the law
17
expressly provides for the doing of a thing, failure to comply with such provisions in the course of commencement of a suit is fatal to such action.
Flowing from the hills of the above, the question I ask myself is that of what judicial relevance would it be to pronounce on the other issues in an action when it has been held as a fundamental issue that the Originating Process i.e. the Writ of Summons which gave birth to the decision of the trial Court that is under an appellate scrutiny in this Court was not signed by the Respondent or by her legal representative? I am not oblivious of the plethora of judicial authorities of this Court and the Apex Court on the need of the Court of Appeal to pronounce on all the issues before it.
However, the only exception made by the Supreme Court in that case is in the clearest of cases. One of the clearest of cases would be where a Court makes a finding that it lacks the judicial power and authority by the application of any statute, to entertain a case or dispute brought before it by the parties. In other words, where the Court after a consideration of an issue questioning or challenging its jurisdiction
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canvassed by the parties, it held that by the provisions of any relevant statute, it lacks the necessary jurisdiction to entertain and determine the dispute between the parties, would be one of the clearest of cases when the duty to consider other issues in the case abates. Failure to sign the writ of summons as mandated by Order 6 Rule 3 of the Rules of the trial Court knocks off the substratum of the Respondent’s case from inception at the trial Court. In the circumstances, I find that it will be unnecessary to deal with the other issues raised in the grounds of appeal.
The appeal therefore has merits and same is hereby allowed. The decision of the High Court of Enugu State in the Nsukka judicial division delivered by H. O. EYA J. on 10th October, 2018 wherein the learned trial judge granted the claims of the Respondent as Plaintiff is hereby struck out for want of jurisdiction.
Parties shall bear their respective costs.
IGNATIUS IGWE AGUBE, J.C.A.: The Leading Judgment of my Learned Brother the Honourable Justice A. S. Umar, JCA; was made available to me now and having read same, I am in total agreement with his reasoning and
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conclusion that the Appeal is meritorious and it is accordingly allowed. I abide by the consequential orders as made by my Lord.
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 ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I equally hold that the appeal is meritorious and it is accordingly allowed.
I adopt the consequential orders in the lead judgment as mine.
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Appearances:
CHIEF IKENNA EGBUNA (SAN), with him, CHUKA OSI ANATOGA ESQ. For Appellant(s)
C. EKWEALOR ESQ. For Respondent(s)
