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JAGABA & ORS v. GBASE & ORS (2022)

JAGABA & ORS v. GBASE & ORS

(2022)LCN/16927(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, September 06, 2022

CA/A/32/2014

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

1. SULE JAGABA 2. TUNDE 3. PASTOR JAMES BUBUMI 4. SARI SHAY JAGABA SOKOTO APPELANT(S)

And

1. NIGER DAMIDAMI GBASE 2. PADA ZAKAKORE DAMIDAMI 3. ZARIA DAMIDAMI RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON THE  IMPORTANCE OF JURISDICTION

Now the importance of jurisdiction cannot be overemphasized. Jurisdiction is the life wire of adjudication. It is trite that proceedings no matter how well or brilliantly conducted amounts to a nullity where it is conducted without jurisdiction. – see the cases of NURTW & ORS. V. RTEAN & ORS. (2012) LPELR-7840 (SC), CPC V. INEC & ORS (2011) LPELR-12654(CA), GITTO CONSTRUCZIONI GENERALI (NIG) LTD V. ESSIEN (2019) LPELR- 47098(CA) and ALALADE V. PRESIDENT OF THE OTA GRADE 1 CUSTOMARY COURT & ORS (2021) LPELR-55656(CA).  PER SENCHI, J.C.A.

CONDITIONS THAT DETERMINE THE JURISDICTION OF COURT

For a Court of law to be vested with the jurisdiction to hear and determine any suit, three basic requirements must be met or satisfied i.e.
(a) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another.
(b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) The case comes before a Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
See the Supreme Court’s decision in the case of MADUKOLU & ORS V. NKEMDILIM (1962) LPELR-24023(SC) which Still represents the position of the law today.

Arising therefrom, the first issue herein questions the jurisdiction of the lower Court to entertain the suit subject of this appeal. The Appellants’ ground is that the originating processes were not signed in compliance with the law particularly Sections 2(1) and 24 of the Legal Practitioners Act. PER SENCHI, J.C.A.

WHETHER OR NOT COURT PROCESSES MUST BE SIGNED BY A LEGAL PRACTITIONER IN HIS OWN NAME

Interpreting Sections 2 and 24 of the Legal Practitioners Act, the principle was firmly established by the Supreme Court in the case of OKAFOR V. NWEKE (2007) 10 NWLR PT. 1043 P. 521 that Court processes must be signed by a legal practitioner in his own name. The position was held that ‘legal practitioner’ does not include firm names and any legal practitioner signing Court process on behalf of a firm of legal practitioners must include his own name. This position has been religiously followed in subsequent cases by both the Supreme Court and this Court. – see the cases of BRAITHWAITE V. SKYE BANK PLC. (2012) LPELR-1S532(SC), NYONG & ANOR V. OTU & ORS (2012) LPELR-8480(CA), TANIMU & ANOR V. RABIU & ORS (2017) LPELR-47998(SC) and DIAMOND BANK V. TRANTER INTERNATIONAL LTD & ANOR (2019) LPELR- 47618(CA).
It is thus the firmly established position of the law that by virtue of Sections 2 and 24 of the Legal Practitioners Act, it is only a legal practitioner that can sign Court processes on behalf of a litigant and a Court process thus signed by a person not authorised under the Legal Practitioners Act or recognized by that Act to practice as a legal practitioner is rendered invalid, null and void. See DEVELOPMENT ORGANIZATION & ANOR V. IBRAHIM MOHAMMED (2014) LPELR-23598(CA).

Any Court process not verifiable to have been signed by either the party himself or his legal practitioner is incompetent and therefore, liable to be struck out. See the case of DIAMOND BANK V. TRANTER INTERNATIONAL LTD & ANOR (SUPRA) where this Court held that;
“Nowadays, so strict is the Rule in Okafor V. Nweke (Supra) that even where a Court process, including originating process, is signed above the names of two or more counsel for the party affected but without any indication as to who amongst the several names of counsel signed the Court process, such a Court process would be held to be incompetent and thus liable to be struck out.”
On how Court processes are to be validly signed, the Supreme Court held that Court processes for filing in Court are to be signed as follows: first, the signature of counsel, which may be any contraption. Secondly, the name of the counsel clearly written. Thirdly, who the counsel represents. Fourthly, the name and address of Legal firm. – see the Supreme Court’s decision in SLB Consortium Ltd vs. NNPC (2011) 9 NWLR Pt. 1252 P. 317. See also ADE-OJO V. OJO & ANOR (2021) LPELR-56205(CA).
PER SENCHI, J.C.A.

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Niger State, Minna delivered by M.S. Zukogi, J. on 5/2/2013 in Suit No. NSHC/MIN/70/2009.

The Respondents (as plaintiffs) claim against the Appellants (as Defendants) before the lower Court as follows:
(a) A declaration of title to a piece and parcel of Land by the situated at Mutumdaya to plaintiffs.
(b) A Court Order to set aside the purported sales of the Land by the first defendant to the second and third defendants.
(c) A declaration that the entire Land, including the portions where buildings structures were put up belong to the plaintiffs.
(d) An Order of perpetual injunction restraining the defendants jointly and severally their servants agents, assigns, privies from trespassing on the disputed Land or disturbing the plaintiff’s peaceful enjoyment of the Land.
(e) A claim of N250,000.00 general damages from the defendants jointly and severally to the plaintiffs plus substantial costs.

The Respondents (as plaintiffs) commenced this action by writ of summons and statement of claim against the Appellants (defendants) at the High Court of Niger State. The Amended Statement of Claim dated 16/6/2009. (See page 28 of the Record of Appeal) The 1st, 2nd and 4th Appellants jointly filed their statement of defence dated 18/1/2010 (see page 36 of the Record) wherein they counter-claimed against the Respondents for title over the disputed land. For his part, the 3rd Appellant filed his statement of defence (see page 54 of the Record) and included a counter-claim against the Respondents for declaration that the sale between himself and the 1st Respondent is valid and also for damages. The Respondents filed their defence to the 3rd Respondent’s Counter-claim (at page 85 of the Record).

At the trial before the lower Court, the Respondents called 5 witnesses, the 1st, 2nd and 4th Appellants also called 5 witnesses while the 3rc Appellant called a single witness in support of their respective cases. The Respondents’ case was that their forebears had settled on and cultivated the then virgin land at MutumDaya which the Respondents had thereafter inherited. The Appellants’ case however is that the land in dispute was inherited by the 1st Respondent from his forebears and he sold the land to the 2nd and 3rd Appellants respectively.

A visit to the locus in quo was conducted by the lower Court in the course of trial. At the conclusion of evidence and address of parties, the lower Court delivered its judgment on 5/2/2013 (see page 241 of the Record of Appeal) wherein it found for the Respondents’ claim and granted same while finding that the Appellants’ case failed.

​Dissatisfied with the decision of the lower Court, the Appellants have appealed against same to this Court by filing their notice of appeal. By Amended Notice of Appeal dated 5/10/2018, the Appellants raised 6 grounds of appeal from which they further raised 3 issues for determination in their Appellants’ Brief of Argument dated 18/7/2019. The 3 issues so raised by the Appellants in their brief and settled by Mahmud Mohammed Esq. are as follows:-
1. Having regards to the fact that the originating process was not properly signed by a legal practitioner whether same is not incompetent. (Ground 1)
2. Whether the Respondents proved their case and therefore entitled to a declaration of title to the land in dispute.

(Grounds 2, 3, 4, 5).
3. Whether considering the facts of this case and the evidence, the Appellant is not entitled to the reliefs in the counter claim (Ground 6).

The Respondents’ Brief of Argument dated 26/11/2020, and settled by Jonathan Guru Taidi Esq. the Respondents formulated and argued 3 similar issues for determination, to wit;
a) Whether the Respondents proved their case as required by lew to entitle them to judgment of the trial Court over the land in dispute.
b) Did the trial Court rightly entertain the claims of the Respondents which were duly signed by the Counsel to the Respondents? And if answered in the negative whether that has occasioned any miscarriage of justice.
c) Whether the Appellants proved their Counter-claim having regards to the evidence before the trial Court.
The Appellants filed a Reply brief on 16/2/2021.

APPELLANTS’ ARGUMENTS ON THEIR ISSUES:
Making submissions on their issue No. 1, the Appellants’ learned Counsel argued that all processes filed in Court by parties must be signed by a legal practitioner whose name appear on the Roll of Legal Practitioners in Nigeria and who is entitled to practice as Barrister and Solicitor in Nigeria. He contended that where it is not signed as such, it is worthless and therefore grossly incompetent and cannot form part of the process to be considered or relied upon by Court. He posited that the name of the signatory must be endorsed. He relied on the cases of PMB LTD V NDIC (2011) 12 NWLR PT. 1261 P. 253, ADENEYE V. YARO (2013) 3 NWLR PT. 1342 P. 6 and SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR PT. 1252 P. 315. He argued that the manner in which the Amended Statement of Claim is signed shows that no Counsel’s name is tied to the signature and this does not conform with the provisions of Sections 2(1) and 24 of the Legal Practitioners Act. He submitted that this makes the suit incompetent ab initio. He contended that the Amended Statement of Claim is the foundation upon which the decision of the lower Court is based and since the foundation is incompetent, nothing can stand on it. He argued that as neither the Respondents nor legal practitioner signed the originating process, such breach goes to the jurisdiction of the lower Court to entertain the matter. He referred this Court to MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341. He urged this Court to resolve the issue in favour of the Appellants.

On his issue No. 2, Appellants’ Counsel contended that a declaration of title to land is granted in respect of land identified with certainty and therefore a claimant has the duty to show the Court the area of land which his claim is predicated upon. He posited that the claim must fail and be dismissed if not so ascertained. He relied on ODUMOSU V. OLUWOLE (2004) FWLR pt. 191 P. 1628. He argued that the case of the Respondents and the visit to the locus in quo are manifestly contradictory on the identity of the land in dispute. Counsel further submitted that the Respondents did not sufficiently establish the genealogy or family tree from the purported founders of the land down to the Respondents. That the Respondents failed to establish their relationship with the founders or the particulars of intervening owners of the land. He cited JALA & ORS V. JALA & ORS (2017) LPELR-43320 (CA). He contended that the evidence of the Respondents’ witnesses is lumped up and there is nothing distinguishing evidence from personal knowledge from evidence from other sources contrary to Section 115 of the Evidence Act. He argued that general damages cannot be awarded without proof of the location and description of land allegedly trespassed on. He urged this Court to resolve his Issue No. 2 in favour of the Appellants.

In respect of their issue No. 3, the Appellants through their Counsel submitted that a close look at the evidence led by the Appellants’ witnesses in proof of the Counter-claim would show that the land belongs to the 1st Appellant as inherited from his grandfather and this was not controverted by the Respondents. He contended that the Counter-claim ought to succeed on the strength of the pleadings and evidence of the Appellants. He posited that the lower Court was wrong to have held that there were contradictions in the evidence of the 1st Appellant as to how he got the land. Counsel argued that there were no such contradictions and he went further to urge this Court to resolve his issue No. 3 in the Appellants’ favour.

Learned Counsel to the Appellants concluded his submissions in his brief by urging this Court to allow the appeal and set aside the judgment of the lower Court. He also urged this Court to either declare the entire proceedings a nullity or in the alternative set aside the award made by the lower Court in favour of the Respondents’ claim and grant the Counter-claim.

RESPONDENTS’ ARGUMENTS ON THEIR ISSUES:
It is the Respondents’ submission on the first issue in their brief of argument that the Respondents fulfilled the burden placed on them by law to prove their claim as contained in their pleading on the preponderance of evidence and this is why the lower Court declared the land in dispute in their favour. He relied on a plethora of decided cases as authority. Learned Counsel to the Respondents went over a summary of the evidence of the Respondents’ witnesses at trial and submitted that the traditional history put forward by the Respondents was credible while that of the 1st Appellant was most unreliable. On the Respondents’ duty to properly identify the land they claimed. Counsel submitted that besides the clear description given by the Respondents’ witnesses, the visit to the locus in quo conducted by the lower Court showed that there was no discrepancy. He posited that general damages are awarded to a successful party even if no damage or loss is caused. He urged us to resolve his first issue in favour of the Respondents.

On the Respondents’ second issue, learned Counsel to the Respondents submitted that the jurisdiction of the Court to hear and determine any matter is invoked by filing the appropriate process at the registry of the Court. He contended that the amended writ of summons and amended statement of claim were signed by F. Fajemirokun (now late) who was called to the Nigerian Bar to practice as Barrister and Solicitor of the Supreme Court of Nigeria since 1975. It is submitted that the Respondents thus substantially complied with the legal prerequisites. He contended that even if there was non-compliance on the part of the Appellant, the defect is are mere lapse and procedural irregularity which the Appellants had willingly waived by participating fully in the entire proceedings at the lower Court. He further argued that in Nweke v. Okafor (2007) 10 NWLR pt. 1043 P. 151 the process was signed in the name of a law firm, a non-juristic person but that is not the case here. Counsel to the Respondents posited that the Appellants have failed to show what injustice has been done to them by the result of the procedural irregularity and they should be seen as having waived same. Counsel noted that the Appellants did not complain until the final address stage at the lower Court. He contended that the lower Court’s decision to overrule the Appellant’s objection cannot be faulted as Courts have long moved away from the terrain of technical justice towards doing substantial justice. He relied on the case of OBAKPOLOR V. THE STATE (1991) 1 NWLR PT. 165 P. 113. Referring this Court to Sections 2(1) and 24 of the Legal Practitioners Act, learned Counsel submitted that the purpose of the provision is merely to ensure that fake lawyers do not invade the profession and the practice of declaring a legal process incompetent as a result of slip of counsel is certainly an overkill. He argued that to start the case afresh would cause a lot of hardship to both parties.

​Making submissions on their third and final issue, the Respondents’ Counsel posited that since the 1st Appellant counterclaimed for a declaration of title to the said land at MutunDaya, the 1st Appellant has a duty to plead and prove his case in one of the five ways enunciated in IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227. After making a summary of the evidence of the Appellants’ witnesses in his brief, Counsel submitted that the Appellants’ witnesses contradicted one another on material facts. He contended that the lower Court was right to have held as such and rejected the 1st Appellant’s traditional history. In support, he cited the case of NWOKIDU V. OKANU (2010) 1 SENJ 167. He argued that the 1st Appellant did not prove his title to the disputed land and therefore had nothing to pass to anybody. That the 2nd and 3rd Appellants who claimed to have bought the land in dispute from the 1st Appellant would equally have nothing. He contended that the Appellants who pleaded traditional history in proof of title cannot fail back on acts of ownership having failed to establish traditional history.

In conclusion, learned Counsel to the Respondents urged us to dismiss this appeal as lacking in merit and affirm the judgment of the lower Court.

APPELLANTS’ REPLY BRIEF:
The submission of the Appellants in their Reply brief is that the Respondents have not shown by any evidence how the land in dispute was founded and their case was bound to fail. They proceeded to repeat some of their submissions which they had already made in their brief of argument.

ISSUES FOR DETERMINATION:
Having put in summary the arguments of the respective parties through their Counsel on record, it is relevant to note that the issues formulated by the respective parties for the determination of this appeal amount to the same thing. I shall adopt the issues as formulated by the Appellants (with slight modification of my own to the first issue) as the main issues under which I shall consider this appeal. The issues for determination are therefore as follows;
1. Whether the originating process before the lower Court was competent in view of the manner in which they were signed. (Ground 1)
2. Whether the Respondents proved their case and therefore entitled to a declaration of title to the land in dispute. (Grounds 2, 3, 4, 5).
3. Whether considering the facts of this case and the evidence, the Appellant is not entitled to the reliefs in the counter claim (Ground 6).

​I shall now consider and address the issues anon.
Issue No. 1:
1. Whether the originating process before the lower Court was competent in view of the manner in which they were signed. (Ground 1)
Now the records show that the 1st, 2nd and 4th Appellants’ Counsel had in their final written address (before the lower Court) raised an objection to the competence of the suit and contended that the lower Court lacked the jurisdiction to entertain same as the originating processes were neither signed by the Respondents nor by a legal practitioner.

In its decision on this, the lower Court held as follows in its judgment (at page 277 of the Record of Appeal);
“The Counsel to the 1st, 2nd and 4th defendants Mr. Ndagi Musa raised a preliminary objection in their final written address as to the form of commencement of this action. Stating that the Court lacks jurisdiction as the processes by which the action commenced were not signed by either the plaintiffs or a legal practitioner and he referred to the case of SULEIMAN VS SWOLD SWEET & CONFECTIONARY NIG. LTD (2010) 4 WRN 85; this case has no relevance here. For in the case before us through counsel to the 1st, 2nd and 4th defendants claim processes by which the action began were incompetent as they were not signed; learned counsel however waived and participated fully in the proceedings in this case till he filed in his final written address.
When counsel now deems it fit to raise the objection.
It is trite that a person will not be allowed to complain against an irregularity which he himself has accepted, waived or acquiesced in, see NOIBI VS FIKOLATI & ORS (1987) 1 NWLR Pt. 52, 619. “

The lower Court then proceeded to hold that in weighing the Respondents’ case against the Appellants’ counter-claim, the Respondents’ case weighs heavier on the preponderance of evidence before it.

Now the importance of jurisdiction cannot be overemphasized. Jurisdiction is the life wire of adjudication. It is trite that proceedings no matter how well or brilliantly conducted amounts to a nullity where it is conducted without jurisdiction. – see the cases of NURTW & ORS. V. RTEAN & ORS. (2012) LPELR-7840 (SC), CPC V. INEC & ORS (2011) LPELR-12654(CA), GITTO CONSTRUCZIONI GENERALI (NIG) LTD V. ESSIEN (2019) LPELR- 47098(CA) and ALALADE V. PRESIDENT OF THE OTA GRADE 1 CUSTOMARY COURT & ORS (2021) LPELR-55656(CA). 

For a Court of law to be vested with the jurisdiction to hear and determine any suit, three basic requirements must be met or satisfied i.e.
(a) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another.
(b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) The case comes before a Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
See the Supreme Court’s decision in the case of MADUKOLU & ORS V. NKEMDILIM (1962) LPELR-24023(SC) which Still represents the position of the law today.

Arising therefrom, the first issue herein questions the jurisdiction of the lower Court to entertain the suit subject of this appeal. The Appellants’ ground is that the originating processes were not signed in compliance with the law particularly Sections 2(1) and 24 of the Legal Practitioners Act.

​Interpreting Sections 2 and 24 of the Legal Practitioners Act, the principle was firmly established by the Supreme Court in the case of OKAFOR V. NWEKE (2007) 10 NWLR PT. 1043 P. 521 that Court processes must be signed by a legal practitioner in his own name. The position was held that ‘legal practitioner’ does not include firm names and any legal practitioner signing Court process on behalf of a firm of legal practitioners must include his own name. This position has been religiously followed in subsequent cases by both the Supreme Court and this Court. – see the cases of BRAITHWAITE V. SKYE BANK PLC. (2012) LPELR-1S532(SC), NYONG & ANOR V. OTU & ORS (2012) LPELR-8480(CA), TANIMU & ANOR V. RABIU & ORS (2017) LPELR-47998(SC) and DIAMOND BANK V. TRANTER INTERNATIONAL LTD & ANOR (2019) LPELR- 47618(CA).
It is thus the firmly established position of the law that by virtue of Sections 2 and 24 of the Legal Practitioners Act, it is only a legal practitioner that can sign Court processes on behalf of a litigant and a Court process thus signed by a person not authorised under the Legal Practitioners Act or recognized by that Act to practice as a legal practitioner is rendered invalid, null and void. See DEVELOPMENT ORGANIZATION & ANOR V. IBRAHIM MOHAMMED (2014) LPELR-23598(CA).

Any Court process not verifiable to have been signed by either the party himself or his legal practitioner is incompetent and therefore, liable to be struck out. See the case of DIAMOND BANK V. TRANTER INTERNATIONAL LTD & ANOR (SUPRA) where this Court held that;
“Nowadays, so strict is the Rule in Okafor V. Nweke (Supra) that even where a Court process, including originating process, is signed above the names of two or more counsel for the party affected but without any indication as to who amongst the several names of counsel signed the Court process, such a Court process would be held to be incompetent and thus liable to be struck out.”
On how Court processes are to be validly signed, the Supreme Court held that Court processes for filing in Court are to be signed as follows: first, the signature of counsel, which may be any contraption. Secondly, the name of the counsel clearly written. Thirdly, who the counsel represents. Fourthly, the name and address of Legal firm. – see the Supreme Court’s decision in SLB Consortium Ltd vs. NNPC (2011) 9 NWLR Pt. 1252 P. 317. See also ADE-OJO V. OJO & ANOR (2021) LPELR-56205(CA).

I have carefully perused the Amended Statement of Claim filed in the instant case at the lower Court which was the originating process upon which the trial was conducted and Judgment given.

For avoidance of doubt, the said originating process is at pages 28-30 of the Record of Appeal. There is a signature at the end of the process (at page 30 of the Record). Below the said signature are the following endorsements;
“THE APPLICANTS
C/O F. FAJEMIROKUN
FAMROK CHAMBERS
S.E 83 D ABDU STREET
MINNA”

There is no name at all as to who signed the Amended Statement of Claim. In other words, the person who purportedly signed the said originating process is not known.

For the avoidance of doubt, I have perused the original Statement of Claim filed by the Respondents by which they originally initiated their action. It is at pages 3 and 4 of the Record of Appeal and it is signed thus;
‘Plaintiffs Solicitor,
Famrok Chambers,
S.E. 83d Abdu Street,
Minna.”

Again, the identity of the person that signed as the plaintiffs’ solicitor is not known as his name is not stated.

​In ZARTECH LTD V. OLAOGUN ENTERPRISES LTD (2016) LPELR-41927(CA) this Court held per my learned brother Tsammani, JCA as follows;
“It is not in doubt that a signature without the name of the maker shows nothing. It is incurably bad. In other words, where a Court process, whether originating or not is purportedly signed by a Legal Practitioner but without the name of the Legal practitioner, the defect is not a mere irregularity that can be cured but a fundamental vice affecting the validity of the process. The document or process will be incompetent, null and void. “
It follows therefore that both the original statement of claim and the Amended version are both incompetent as they have not been validly signed in the manner recognised by the law.
In fact, the incompetence of the originating processes dates and reaches as far back as when the original statement of claim was filed (at inception of the matter) and not just as at amendment because it is trite that an invalid original process such as the original statement of claim in this case cannot be validly amended. See ZARTECH LTD V. OLAOGUN ENTERPRISES LTD (Supra) where this Court held that;
“It is the law that an invalid document or process is null and void and therefore cannot be rectified by any subsequent amendment. In other words, where the original document is void, it cannot be amended since what is void cannot be validly amended. What is invalid is void, and you cannot put something on nothing and get something out of it. This is because, from nothing comes nothing i.e. Ex nihilo nihil fit. It therefore follows that, if the Original Statement of Claim is found to be invalid and thus void, “the amended process” will also be void.”
​In the instant case, the original statement of claim being incompetent, null and void, its amended version must also be void as nothing can be placed on nothing. The entire proceedings i.e. evidence led and decision of the lower Court, which were all based on such incompetent and null originating processes must also all be null and void. This is because the incompetent statement of claim cannot be the basis on which any evidence can be adduced and any evidence predicated on such will be afflicted by incompetency. Such evidence will neither be admissible in evidence nor capable of being accorded any probative value. In turn, the judgment of the lower Court purporting to ascribe probative value to such evidence must be null and void. The malady goes on and on. The short version is that the lower Court lacked the jurisdiction to entertain the incompetent statement of claim and its judgment based thereon is invalid, null and void. – see HAMZAT & ANOR V. SANNI & ORS (2015) LPELR-24302(SC) and the decision of this Court in AJAO V. OGUNTOLU & ANOR (2021) LPELR-56076(CA).
In similar circumstances as in the instant case, this Court held as follows in ZARTECH LTD V. OLAOGUN ENTERPRISES LTD (SUPRA) on the effect of such an invalid statement of claim;
“Having found as above, it is obvious that the Statement of Claim filed on 20/2/2006, which is the Originating Process in this case is incompetent, invalid and void ab initio. It cannot be cured by an amendment. It has no remedy but to have same struck out. It is hereby struck out. It therefore means that, the proceedings of the Court below was conducted without jurisdiction. This is because the case was not initiated by due process of law, and upon fulfillment of a condition precedent to the exercise of the Court’s jurisdiction. See Madukolu v. Nkemdilim (1962) 2 S.C.N.L.R. p.341. See also SLB Consortium Ltd v. NNPC (supra) at pp.336 – 337 paragraphs G – A. It therefore means that the entire proceedings of the Court below and the judgment given thereon, was conducted without jurisdiction.”
In BRAITHWAITE V. SKYE BANK PLC. (2012) LPELR-15532(SC) the Supreme Court held as follows per Muhammad JSC;
“I agree with learned counsel to the Respondent/Objector that this Court has consistently held that the validity of the originating processes in a proceeding before a Court is fundamental and a necessary requirement for the competence of the suit and proceeding the processes set out to commence. Failure to commence a suit with a valid Writ and/or Statement of Claim goes to the root of the action since the conditions precedent to the exercise of the Court’s jurisdiction would not have been met to duty place the suit before the Court. See Madukolu v. Nkemdilim (supra) and Mohammed Mari Kida v. A. D. Ogunmola (2006) 13 NWLR (Pt.997).”
​The incompetence of the statement of claim occasioned by the invalid signing of same is not a mere procedural irregularity as wont to be argued by the Respondents’ counsel. It is a fundamental issue that affects the jurisdiction of the lower Court to entertain the suit. It is not capable of being waived and the mere fact that the Appellants participated at trial cannot amount to a waiver. This Court has held that the issue of non-signing of an originating process by a legal practitioner is a jurisdictional one and not an irregularity that can be waived. – see IDOMI v. ABAYA & ORS (2021) LPELR-S5681(CA). It was also held in the foregoing case that parties cannot confer jurisdiction on a Court by consent or acquiescence.
In AJAO V. OGUNTOLU & ANOR (SUPRA) this Court went on to consider the effect of an invalidly signed and incompetent statement of claim on the corresponding counter-claim. It was held that although a counter-claim is a separate action, the effect of the incompetence of a main action on the counterclaim would depend on the facts and circumstances of the case. This Court held per Ogakwu, JCA that where an original statement of claim is not valid, no issues can be joined upon the invalid pleadings and a statement of defence/counterclaim was as good as having not been filed.
In the instant case, the issues involved in the statements of defence and counter-claim of the Appellants are closely interwoven with the issues involved in the incompetent statement of claim of the Respondents. The issues were purportedly joined on all the processes and evidence was led thereon. Judgment was delivered on both the main claim and counter-claim based on the evidence led on issues purportedly joined. As there can be no joinder of issues on the incompetent statement of claim, the incompetence of the statement of claim in the instant case has affected the counter-claim. Thus, an order striking out the entire suit including the counter-claim for lack of jurisdiction is unavoidable in the circumstances.
Counsel to the Respondents has appealed that the setting aside of the instant case in the circumstances would occasion hardship on the parties to this case who will have to start afresh.
Well, that is unfortunate. But that is the law and the law must be obeyed by parties and this Court. There is no room for exercise of discretion by this Court in such a jurisdictional matter.
​All the foregoing authorities represent the position of the law on signing Court processes, and all Courts in Nigeria, including this Court, are bound by it. – see FBN PLC & ORS Y. MAIWADA & ORS (2012) LPELR-9713(SC). See particularly the decision of this Court per my learned brother Tsammani, JCA in ZARTECH LTD V. OLAOGUN ENTERPRISES LTD (SUPRA).
In view of all the foregoing, the originating processes in the instant suit is incompetent, invalid, null and void having not been signed as required by law by a legal practitioner. 

Issue No. 1 is therefore resolved in favour of the Appellants and against the Respondents.

As the lower Court lacked the jurisdiction to entertain the suit in the first place, the remaining two issues in this appeal which deal with the merit of the case cannot be competently dealt with.

In the result, the instant appeal is meritorious and it is accordingly allowed.

​The Judgment of the High Court of Niger State, Minna delivered by M.S. Zukogi, J. on 5/2/2013 in Suit No. NSHC/MIN/70/2009 is hereby set aside. In its place, I hereby make an order striking out the entire Suit No. NSHC/MIN/70/2009 for want of competence and lack of jurisdiction. 

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance, the Judgment delivered by my learned brother, Danlami Zama Senchi, JCA.

The issue of signing of a Court process by counsel was settled by the Supreme Court in the case of FBN & Ors. v. Maiwada & Ors. (2012) LPELR-9713 (SC) wherein a full panel of the Supreme Court held the ratio in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 to be good law. The Supreme Court also held that the issue is that of substantive law, i.e, the Lega Practitioners Act. That, it is not an issue of procedure which can be waived.

It is for the above reason and the detailed reasons stated in the lead judgment that I agree that the appeal has merit. On that note, I hold that the originating process leading to the decision of the trial Court is invalid, null and void. Same is hereby struck out. Consequently, the judgment predicated thereon is hereby set aside.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother, Danlami Zama Senchi, JCA, and I am in agreement with the reasoning and conclusion reached therein.

​I also allow the appeal for being meritorious and set aside the judgment of the High Court of Niger State, Minna delivered by M. S. Zukogi, J. on 5/2/2013 in Suit No. NSHC/MIN/70/2009.

​I make no order as to costs.

Appearances:

O. S. Akaar, Esq. For Appellant(s)

…For Respondent(s)