JAMEON NIGERIA LIMITED & ORS v. ISA ENGINEERING NIGERIA LIMITED & ANOR (2018)

JAMEON NIGERIA LIMITED & ORS v. ISA ENGINEERING NIGERIA LIMITED & ANOR

(2018)LCN/11117(CA)

In The Court of Appeal of Nigeria

On Thursday, the 22nd day of March, 2018

CA/C/27/2014

RATIO

UNSIGNED WRIT OF SUMMONS

An unsigned writ of summons is totally worthless as the writ of summons originating this entire case fails to meet the basic requirement of the law thereby rendering it incompetent and incapable of activating the jurisdiction of the Court. Per CHIOMA EGONDU NWOSU-IHEME, J.C.A

JURISDICTION CAN BE RAISED AT ANY POINT

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

Between

JAMEON NIGERIA LIMITED
2. EMMANUEL BASSEY EFFIONG
(D.M.D. JAMEON NIGERIA LTD)
3. JUDE NWACHUKWU
(M.D. JAMEON NIGERIA LTD) Appellant(s)

AND

ISA ENGINEERING NIGERIA LIMITED
2. TOCHUKWU PHILIP EZEANYA
(M.D ISA ENGINEERING NIGERIA LTD) Respondent(s)

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment)

The Appellants were the Defendants at the Court below in the suit filed by the Respondents herein as Claimants under the Undefended List. Judgment was entered against the Appellants in favour of the Respondents by O. I. Itam, J, of the Calabar Division of the High Court of Cross-River State in Suit No. HC/368/2011 delivered on the 16th day of March, 2012. Aggrieved by that decision, the Appellants have appealed against the said judgment.

SUMMARY OF FACTS:
The Appellants issued the Respondents an original Local Purchase Order (LPO) which was admitted at the trial Court as Exhibit 7. The Respondents supplied all items listed in the LPO and the Respondents were issued waybills in acknowledgment of the supply, which were 30 in number and admitted as Exhibits 8 (A1-A30). The Respondents issued the Appellants with sales invoice in replacement of the Waybills, admitted as Exhibit 9. Respondent was then issued two Zenith Bank Cheques by the Appellants covering the balance of the amount admitted as Exhibits 10A and 10B. Thereafter, the Appellants were issued demand letters for payment vide Exhibit 11, which was served in their Calabar Airport office vide Exhibit 12 and at their Port Harcourt office vide Exhibit 13.

By a writ of summons filed on 25/11/2011, the Respondents claimed against the Appellants as follows:
1. The sum of N6,500,000.00 (Six Million and Five Hundred Thousand Naira) only being balance sum for the supply of 1,000 tons of stone base (0-50mm) made on 23rd May, 2011 on sales invoice No. 0201.
2. 21% interest on the said N6,500,000.00 (Six Million and Five Hundred Thousand Naira) only per month from 23rd June, 2011; 30 days after the said supply and delivery of the sales invoice, when the payment is due as per the LPO.
3. 10% interest on the judgment sum from the date judgment is entered until the final liquidation.
4. N300,000.00 (Three Hundred Thousand Naira) only, being cost of prosecuting this suit.
5. Any further sums or amount of money that the Court may find the Defendant liable and payable to the Claimants in the course of the trial or at the end of the trial.

The learned trial Judge in a considered judgment agreed that the Appellants were served all relevant processes in the suit, but opted to stay away from Court. He therefore proceeded to enter judgment in favour of the Respondents against the Appellants. This appeal is predicated on the said judgment under the Undefended List.

The Appellants counsel Emeka Orafu, Esq., distilled four issues for determination thus:
(1) Whether having regards to the peculiar procedure of undefended list and writ of summons to be served outside jurisdiction, which the Claimants did not fulfill, the Court was right to have assumed jurisdiction where the Court has no jurisdiction.
(2) Whether by the procedure adopted by the Honourable Court in hearing the said suit and without proper prove of service on the Defendants before Honourable Court, would it be said that the Defendants were given fair hearing.
(3) Whether from claims of the Claimants as it was on the face of the writ of summons, the Exparte applications, the Honourable Court was right in placing the said suit under the undefended list.
(4) Whether the failure of the Judge to evaluate all the evidence placed before the Court led to a miscarriage of justice.”

Counsel for the Respondents, Chris A. C. Ogbogu Esq., on his part, distilled Two Issues for determination thus:
(1) “Whether this suit as it was originally constituted in the lower Court under HC/368/2011 was competent and hence confer jurisdiction on the lower Court to deliver judgment of 16/3/12.
(2) Whether from the circumstances of this case the Defendants/Appellants have justiciable case on appeal and have come with clean hands.”

In his argument on his first issue, which though not direct on failure by the Claimants or their counsel to sign the writ of summons, counsel for the Appellant, Emeka Orafu Esq., cited Order 8 Rule 3 of the High Court (Civil Procedure) Rules of Cross River State 2008 and contended that a look at the writ of summons on page 2 of the Record of appeal shows that neither the Claimants nor their counsel signed the writ of summons. The language of the said Rule being mandatory, he argued, the lower Court was robbed of jurisdiction to hear the suit.

Reacting to the foregoing, counsel for the Respondents, Chris A. C. Ogbogu, Esq., did not react to his failure to sign the writ, but rather described it as technical and that the law have clearly moved from technicalities to substantial justice in all ramifications. He made no specific reference to the said Order 8 Rule 3 of the High Court (Civil Procedure) Rules of Cross River State. He cited ANYA NWOKO V. OKOYE (2006) 2 FWLR (Pt. 308) P. 1930 at 1932 and argued that non-compliance with the Courts Rules of procedure does not affect the jurisdiction of the Court, he described it as mere irregularity which has nothing to do with the jurisdiction of the Court.

In dealing with this appeal, I will take the first issue as formulated by counsel for the Appellants since that is the issue that bothers on jurisdiction at least as argued in his brief of argument.

I will however couch it differently into one straight forward issue of narrow compass. It is:
“Whether on the facts and circumstances of this case an unsigned writ of summons can validly activate the jurisdiction of the trial High Court.”

Let me begin by reproducing Order 8 Rule 3 of the High Court (Civil Procedure) Rules of Cross River State, 2008. It provides as follows:

Each copy shall be signed by the Legal Practitioner or by a Claimant where he sues in person..
By the provisions of the said Order 8 Rule 3 of the High Court (Civil Procedure) Rules, it is mandatory that for a writ of summons to be valid so as to vest a trial High Court with jurisdiction to entertain the suit, the said writ of summons must either be signed by a legal practitioner representing the Claimant; or by the Claimant.
Apart from the said Order 8 Rule 3, already reproduced, Sections 2 and 24 of the Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 1990 as re-enacted in 2004, make it mandatory that where a plaintiff is represented by a Legal Practitioner in any suit, the originating process therein must be signed and endorsed with the name of a solicitor whose name is on the roll of legal practitioners duly certified to practice in Nigeria.
The issue of jurisdiction is fundamental. It is the foundation and pivot of adjudication. If a Court lacks jurisdiction, it automatically lacks the necessary competence to try the case. A defect in competence is very fundamental because the entire proceedings would be null and void ab initio however well conducted or well decided they might otherwise be.
The requisites or competence to adjudicate have been long settled by the Apex Court. It held that a Court has jurisdiction over a matter when:
a) It is properly constituted with respect to the number and qualification of its members.
b) The subject matter of the action is within its jurisdiction.
c) The action is initiated by due process of the law and
d) Any condition precedent to the exercise of its jurisdiction has been fulfilled.
See MADUKOLU V. NKEMDILIM (1962) 2 SC NLR Pg. 341.
In OKARIKA V. SAMUEL (2013) 7 NWLR (Pt. 1352) Pg. 19 at 43, Mary Peter-Odili JSC stated thus:
Once an initiating process, be it writ of summons or Notice of appeal is not signed or authenticated either by the litigating party or the legal practitioner on his behalf, then the process is invalid and the jurisdiction of the Court is ousted the defect is taken as incurable.
The Supreme Court re-stated this issue of how best to sign an originating process in SLB CONSORTIUM LTD V. N.N.P.C. (2011) 3-4 MJSC, Pg. 145, 166-167 Paras F-A where Rhodes-Vivour, JSC, held as follows:
What then is so important about the way counsel chooses to sign processes (Once it cannot be said who signed the process, it is incurably bad, and rules of Court that seem to provide a remedy are the Legal Practitioners Act).
All processes filed in Court are to be signed as follows:
First, the signature of counsel, which may be any contraption;
Secondly, the name of counsel clearly written;
Thirdly, who counsel represents.
Fourthly, name and address of legal firm. The position is that there must be strict compliance with the law, as clearly spelt out in REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS V. R. AKINDELE (1967) NWLR Pg. 263.
The issue of a void writ of summons cannot be said to be a mere technicality which can be waived or brushed aside.
In DADA V. DOSUNMU (2006) 18 NWLR (Pt. 1010) NIKI TOBI JSC made the following observation:
The role of the Court is to apply the principles of substantial justice according to law. The principles cannot be applied outside the law or in contradiction of the law where a rule of law has clearly and unambiguously provided for a particular act or situation, the Courts have a duty to enforce the act or situation and here: the issue of doing substantial justice does not or should not arise. The party who failed to comply with the rule has himself to blame..
It is trite that this defect cannot be cured by other processes which were endorsed by the Legal Practitioner. In MUYIWA ODEJAYI & ANOR V. HENLEY INDUSTRIES LTD (2013) LPELR 20368, this Court held:
It is immaterial that the legal practitioners name was endorsed in other parts of the process in order to show that he issued the writ or process. What the law requires is that the process be signed or executed by the legal practitioner. The name of the legal practitioner without his signature does not satisfy the requirement of the law.
An unsigned writ of summons is totally worthless as the writ of summons originating this entire case fails to meet the basic requirement of the law thereby rendering it incompetent and incapable of activating the jurisdiction of the Court. See SLB CONSORTIUM V. N.N.P.C (supra).
In OLUWATUYI V. OWOJUYIGBE (2015) All FWLR (Pt. 789) 1083 at 1097 1099, the Court held:
The extant law with regards to the signing of initiating processes such as a writ of summons and the statement of claim as in the current circumstances is that they are to be signed by a legal practitioner recognized by law or a person entitled to practice as a Barrister and Solicitor.
My reasoning on this is that much as the Courts are laying emphasis more on substantial justice at the expense of technical justice, we must not lose sight of the fact that we are enjoined to apply substantial justice according to law.
The writ of summons herein was not signed and endorsed by Chris A. C. Ogbogu Esq., being the Claimants counsel nor by the Claimant himself as required by law and so the above statutory and procedural requirements were not complied with. This has regrettably and unfortunately resulted in fatal consequences.
Put in another way, where a statute or Rule of Court, stipulates that a particular thing must be done in a prescribed manner while initiating a suit or provides for a procedure for commencement of an action, failure to comply with such requirement renders any suit commenced otherwise incompetent for not having been initiated by due process of law.
See OBASANJO V. YUSUF (2004) 9 NWLR (Pt. 788) 144 at 221.
Looking at the writ of summons on pages 1 & 2 of the Record of appeal, particularly page 2, it is very clear that counsel for the Respondents, (Claimants) at the trial Court did not sign his signature at all, this is procedural blunder and the mistake of counsel has now adversely affected the Respondent. The learned trial Judge on his side took all the necessary steps to see that justice was done as could be seen in his well written judgment. All the efforts made which led to the proper service of the Appellants outside jurisdiction has come to a nullity, it is indeed unfortunate. The Respondents have indeed played into the hands of the Appellants who from the Records have been desperately looking for escape route where there was clearly none. Unfortunately, counsel for the Respondents provided them with one on a Platter of Gold by failure to sign the writ of summons.

Since the initiating process in Suit HC/368/2011 was not signed by a legal practitioner as directed by Order 8 Rule 3 of the Cross-River State High Court (Civil Procedure) Rules, 2008, the suit was not initiated by due process. It is clearly incompetent and the trial Court was robbed of jurisdiction.
As stated earlier in this judgment, where a Court is devoid of jurisdiction as in this case, any exercise of judicial power no matter how diligent, how well thought out and properly conducted, is a nullity and incapable of conferring legal benefits.

There is merit in this appeal and it is hereby allowed. The sole issue is resolved against the Respondents and in favour of the Appellants. The judgment of O. I. Itam, J, of the Calabar Division of the High Court of Cross River State in suit No. HC/368/2011, delivered on the 16th of March, 2012, having been delivered without jurisdiction is hereby set aside. It is struck out for being incompetent, null and void and regrettably of no judicial effect whatsoever. Respondents are at liberty to start all over. I make no order as to costs.

STEPHEN JONAH ADAH, J.C.A.: I was availed the draft of the judgment just delivered by my Learned Brother Chioma Egondu Nwosu-Iheme, JCA.

I am in agreement with his reasoning and conclusion that there is merit in this appeal. I also do allow this appeal.

The issue of jurisdiction I must re-echo here is very fundamental in every case before a Court of Law. The issue can be raised at anytime even in Appeal Court or the Supreme Court. The determinants of jurisdiction have been duly well settled over the years by the Supreme Court and this Court. It is the nature of the Plaintiff’s claim before the Court that determines the jurisdiction of the Court. See JEV & ANOR. VS. IYORTYOM & ORS. (2014) 14 NWLR (PT. 1428) 575; ABIA STATE TRANSP. CORP. & ORS. VS. QUORUM CONSORTIUM L TD. (2009) 9 NWLR (PT. 1145) 1. The Insoluble grit of the issue is the fact that any matter determined in excess of jurisdiction is a nullity. It is well known by now that a defective originating process cannot activate the jurisdiction of the Court. In the instant case, the writ of summons with which the case was originated at the Court below was not endorsed by the legal practitioner who took out the writ. This no doubt, has rendered the foundation of this case void and of no effect whatsoever.
This therefore cannot give birth to any legitimate initiation of proceeding of the lower Court. This issue is not a mere irregularity neither is it an issue of technicality. It is an issue of substance and it is an incurable error which has rendered everything done by the Court below on the basis of that writ void ab initio.

I agree with my Learned Brother in the lead judgment that the writ is incompetent, null and void and must be struck out. I therefore allow this appeal and I order the writ of the Court below in Suit No. HC/368/2011 struck out. I also abide by the order as to costs.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege of reading the draft of the lead judgment just read by my learned brother NWOSU-IHEME, JCA and I agree with the reasoning and conclusion therein.

The fundamental defect in the originating process incurably deprived the Court of the requisite jurisdiction. The appeal is therefore allowed.
I adopt the consequential orders in the lead judgment as mine.

Appearances

Emeka Orafu Esq.For Appellant

AND

Chris A. C. Ogbogu Esq.For Respondent