ILOKSON & CO. (NIG) LTD v. UNION BANK (2021)

ILOKSON & CO. (NIG) LTD v. UNION BANK

(2021)LCN/5052(SC)

In The Supreme Court

On Friday, March 26, 2021

SC.69/2009

Before Our Lordships:

Olukayode Ariwoola Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Samuel Chukwudumebi Oseji Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Between

ILOKSON & COMPANY (NIG) LTD APPELANT(S)

And

UNION BANK OF NIGERIA RESPONDENT(S)

RATIO

WHEN A JURISDICTIONAL ISSUE CAN BE RAISED

The belatedness of a jurisdictional issue has no place in our judicial system since you cannot put something on nothing and expect it to stand. It is settled that the issue of jurisdiction can be raised any time, even before this Court for the first time. Per OBASEKI, JSC, in CHIEF DANIEL AWODELE OLOBA V. ISAAC OLUBODUN AKEREJA (1988) LPELR-2583(SC) (PP. 17-18, PARAS. F-D), comprehensively handled this matter thus:
…It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the appeal Courts. This issue can be raised by any of the parties or by the Court itself suo motu…There is no justice in exercising jurisdiction where there is none. It is injustice to the law, to the Court and to the parties so to do – PER UWANI MUSA ABBA AJI, J.S.C.

The effect of signing a process in a name other than that of a legal practitioner

It is on record at pages 2 and 3 of the record that on the writ of summons and the application for writ of summons, the Respondent’s originating process was issued and signed thus:
I certainly do not need a microscope to decipher that the said process was signed by the legal firm and not by a legal practitioner, contrary to the provision of Sections 2(1) and 24 of the Legal Practitioners Act.
…the effect of signing a process in a name other than that of a legal practitioner…this Court elevated the position to the level of substantive law beyond procedural technicalities…it has decided that the provisions of Sections 2(1) and 24 of the Act affect the jurisdiction of the Court as a matter of substantive law and not as a matter of procedural law…it is now settled that all Court processes….must be signed in the manner as prescribed by the Act, that is to say, by a person qualified as a legal practitioner and enrolled in the Supreme Court of Nigeria. Any Court processes signed in the business names of a firm’s name…having been rendered incurably defective ab initio are liable to be struck out… There is nothing technical in applying the provisions of Sections 2(1) and 24 of the Legal Practitioners Act as it is drafted by the Legislature… The implication of all I have said above is that the said defendant/appellant’s pleading, signed by “PP: Olatoke and Co.,” is unknown to our law.
See Per NWEZE, J.S.C, in SALAMI V. MUSE (2019) LPELR-47038(SC) (PP. 8-19, PARA. B) – PER UWANI MUSA ABBA AJI, J.S.C.

The law is now common knowledge that only a Legal Practitioner called to the Nigerian Bar and whose name appears on the Roll as Barristers and Solicitors at this Court, has the authority and competence to sign a legal process to be filed in a Court of law, by dint of the provisions of Sections 2(1) and 24 of the Legal Practitioners Act. No other person, natural or artificial; including a registered Law Firm or Company of Legal Practitioners can validly and competently sign such a process and where it was purportedly signed by or in the name of such other person, it is incompetent in law and incapable of invoking the requisite statutory jurisdiction of a Court of law to adjudicate over the process. In such a situation, the Court would lack the competence or jurisdiction to entertain the process and exercise valid judicial authority in respect thereof. See the famous Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 321, NNB Plc v. Denclag Ltd. (2005) 4 NWLR (pt. 916) 549, Kida v. Ogunmola (2006) 13 NWLR (pt. 997) 377, Oketade v. Adewunmi (2010) 8 NWLR (pt. 1195) 63, SLB Consortium Ltd. v. NNPC (2011) 3 & 4 MJSC 145, Okarika v. Samuel (2013) 7 NWLR (pt. 1352) 19.

The signing of a Court process being a statutory requirement goes to the competence of the process which in turn, affects the competence and jurisdiction of the Court and so is not a technical issue, but is substantial and can be raised at any stage of judicial proceedings at all levels of the judicial hierarchy of the Courts. See SPDCN v. Sam Royal Hotel (2016) 8 NWLR (pt. 1514) 318 at 333, Okarika v. Samuel (Supra), PMB Ltd. v. NDIC (2011) 12 NWLR (pt. 1261) 253, FBN v. Maiwada (2013) 5 NWLR (pt. 1348) 444 and Salami v. Muse (2019) LPELR – 47038 (SC) cited in the leading judgment.

Once it is shown and demonstrated satisfactorily that an originating process employed or used to initiate an action or suit was/is incompetent, the defect is fatal ab initio depriving the trial Court and subsequently, the appellate Courts of the requisite jurisdiction to adjudicate over it since you cannot put something on nothing and expect it to stand; the defect being contigeous -PER MOHAMMED LAWAL GARBA, J.S.C.:

UWANI MUSA ABBA AJI, J.S.C. (Delivering the Leading Judgment): The Appellant was a customer of the Respondent with a current account at its Otukpo Road branch, Makurdi. On 21/9/1994, the Respondent granted an export financing credit facility in the sum of N6,000,000.00 to the Appellant. In all, the Respondent granted the Appellant the principal sum of N8.5 million, which interest rose to N15,073,341.00 as at 30/6/1998. Thus, the claim of the Respondent against the Appellant was N15,073,341.00 with 25% interest from 30/6/1998 till judgment and after judgment, when the whole sum is liquidated.

The Appellant however denied receipt of N8.5 million but only N7.5 million, which it over paid the Respondent, evidenced vide Exhibit 00. Under the condition of the grant of the credit facility, the proceeds of the foreign businesses whereof the facility was granted were to pass through the account of the Appellant, kept by the Respondent. The Appellant counter-claimed the sum of N26,170,370.00 and $161,604.39 from the Respondent or the sum of N42,333,009.74. The Respondent fielded PW1 to PW3 as its witnesses with documents in proof of its case while the Appellant forwarded DW1, to prove its case.
On 6/11/2002, the trial Court gave judgment in favour of the Respondent and dismissed the counter-claim of the Appellant. On appeal to the lower Court, the Appellant lost, hence this appeal. The Appellant has distilled these issues for the determination of the appeal:
1. Whether the Court below acted without jurisdiction when it affirmed the judgment of the learned trial Judge which awarded the sum of N15,073,341.00 against the Appellant as principal sum and interest on an overdraft said to have been granted to the Appellant by the Respondent when the originating processes that initiated Suit No: MHC/124/98 were signed by law firms instead of legal practitioners as required by law.
2. Did the Respondent prove its entitlement to the sum of N15,073,341.00 being the alleged principal overdraft and the interest thereon, having regard to the totality of the evidence on the printed record and was it the duty of the Appellant to prove that the Respondent granted her an overdraft of N8.5 million.
3. Did their lordships of the Courts below evaluate the evidence before them, before entering judgment for the Respondent in the sum of N15,073,341.00 being the alleged principal overdraft and interest thereon?
4. Was the Appellant indebted to the Respondent in the sum of N15,073,341.00 as at 30/6/98 for their lordships to award the said sum to the Respondent having regard to the totality of the evidence adduced on the printed record?
5. Was Exhibit ‘Q’ an admission by the Appellant that it was owing the Respondent the sum of N10,349,704.00 as at 2/10/96 and indeed was their lordships right when they relied on Exhibit N, an absolutely inadmissible document to give judgment to the Respondent?
6. Did their lordships appreciate the case of the Appellant both on the pleadings and evidence in support of the counter-claim, and did they in fact properly evaluate the said evidence before dismissing the counter-claim of the Appellant?

The Respondent having adopted the Appellant’s prolific issues, I shall consider issue one first which has been made a jurisdictional issue by the Appellant that may determine the fate of this appeal one way or the other.

ISSUE ONE:
1. Whether the Court below acted without jurisdiction when it affirmed the judgment of the learned trial Judge which awarded the sum of N15,073,341.00 against the Appellant as principal sum and interest on an overdraft said to have been granted to the Appellant by the Respondent when the originating processes that initiated Suit No: MHC/124/98 were signed by law firms instead of legal practitioners as required by law.
The Appellant’s learned Counsel submission is that the application for the issuance of the writ of summons was signed by Godwin A. Igbarago and Company. See pages 2-3 of the record. Thus, both application for the writ and the writ of summons being originating processes not signed by a legal practitioner are incompetent and robbed the Court of its jurisdiction. He relied on OKAFOR & ORS V. NWEKE (2007) LPELR-2412 SC, YUSUF V. MOBIL OIL NIG PLC (2020) 3 NWLR (PT.1710) AT 14-15. He urged this issue to be resolved in his favour.

Learned Counsel to the Respondent has submitted that it was the Principal Attorney, G.A. IGBARAGO ESQ that signed the writ of summons although the name of the company, G.A. IGBARAGO & COMPANY appeared before it. Thus, that this should be treated as an irregularity since also the Appellant’s objection to the Court’s jurisdiction is belated to be considered. He placed reliance on HERITAGE BANK LTD V. BENTWORTH FINANCE NIG. LTD (2018) 9 NWLR (PT. 1625) AT 420. He prayed therefore for the resolution of this issue in favour of the Respondent.

It is on record at pages 2 and 3 of the record that on the writ of summons and the application for writ of summons, the Respondent’s originating process was issued and signed thus:
(Sgd)
G.A. IGBARAGO & COMPANY
(LEGAL PRACTITIONERS)
39, J.S. TARKA WAY,
GBOKO,
PRINCIPAL ATTORNEY: G.A. IGBARAGO ESQ
LEAD COUNSEL

I certainly do not need a microscope to decipher that the said process was signed by the legal firm and not by a legal practitioner, contrary to the provision of Sections 2(1) and 24 of the Legal Practitioners Act.
…the effect of signing a process in a name other than that of a legal practitioner…this Court elevated the position to the level of substantive law beyond procedural technicalities…it has decided that the provisions of Sections 2(1) and 24 of the Act affect the jurisdiction of the Court as a matter of substantive law and not as a matter of procedural law…it is now settled that all Court processes….must be signed in the manner as prescribed by the Act, that is to say, by a person qualified as a legal practitioner and enrolled in the Supreme Court of Nigeria. Any Court processes signed in the business names of a firm’s name…having been rendered incurably defective ab initio are liable to be struck out… There is nothing technical in applying the provisions of Sections 2(1) and 24 of the Legal Practitioners Act as it is drafted by the Legislature… The implication of all I have said above is that the said defendant/appellant’s pleading, signed by “PP: Olatoke and Co.,” is unknown to our law.
See Per NWEZE, J.S.C, in SALAMI V. MUSE (2019) LPELR-47038(SC) (PP. 8-19, PARA. B).

This is a very simple case under the undefended list procedure. However, the learned Counsel to the Appellant prepared a 55-page brief and 9-page reply!!! This must be irritating, cumbersome and herculean to anyone that will handle it. The lawyer confronted with the task of preparing a brief would do well to remember what may be called the A. B. C. of all legal writing, namely Accuracy, Brevity and Clarity. See Per OPUTA, JSC, in ENGINEERING ENTERPRISE OF NIGER CONTRACTOR COMPANY OF NIG V. AG KADUNA STATE (1987) LPELR-1143(SC) (PP. 71-74, PARAS. A-B). A good brief should be brief and short to cover the main subject matter. It is a fitted garment and not an overflowing one. Counsel must learn to make their briefs straight to the point. I think that it is because there is no penalty by the Registry before accepting such briefs or refusing such windy, inelegant, voluminous and verbose briefs, which is the reason why Counsels do not care to make their briefs brief.

This issue is therefore resolved in favour of the Appellant and the appeal is allowed on issue one. All the accompanying issues must abate and expire. I set aside the judgment of both the trial and lower Courts as nullity. Parties are to bear their costs.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft, the lead judgment of my learned brother, U. M. Abba Aji, JSC, just delivered. I am in agreement with the reasoning therein and the conclusion arrived thereat, that there is merit in the appeal and it should be allowed. I too will allow it.
Appeal allowed.

MOHAMMED LAWAL GARBA, J.S.C.: I have read a draft of the leading judgment written by my Learned Brother, U. M. Abba Aji, JSC, in this appeal and agree that apparently, the originating process filed at the trial Court to initiate the suit against the Appellant was signed in the name of the Law Firm of G. A. Igbarago and Company, even though it was indicated that the “PRINCIPAL ATTORNEY” G. A. Igbarago, Esq. as lead counsel. It cannot seriously be argued that G. A. Igbarago, Esq. was the person who personally signed the process, as a Legal Practitioner and lead counsel in the G. A. Igbarago and Company simply he was described as the Principal Attorney and lead Counsel after the signature column on the process where it was clearly indicated that it was the G. A. Igbarago and Company that signed it.

In the above premises and for reasons set out in the leading judgment, I join in allowing the appeal and striking out the Respondent’s writ filed under the undefended list of the trial Court, for being incompetent.

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.: I had the privilege of reading in advance, the leading judgment just delivered by my learned brother, Uwani Musa Abba Aji, JSC and I entirely agree with the reasoning and conclusion therein.
I also abide by the consequential orders including the order on costs.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice UWANI MUSA ABBA AJI, JSC I completely agree with the reasoning, conclusions, decisions and orders therein.

Appearances:

J. S. OKUTEPA, SAN WITH HIM, OJONIMI S. APEH, ESQ, AYOBAMI K. OKE, ESQ. EMODGYAJE P. GALUMJE, ESQ. AND ABDULKAREEM MUSA,, ESQ. For Appellant(s)

CHIEF BANKOLE FALADE, ESQ. WITH HIM, A. S. MOYOSORE, ESQ. AND I. S. AYODELE, ESQ. For Respondent(s)