L. O. CHUKWUMA COMMERCIAL AGENCIES (NIG) LTD & ANOR v. CITIBANK (NIG) LTD
(2020)LCN/14728(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, November 19, 2020
CA/AW/559/2016
RATIO
PROCESS: EFFECT OF ANY PROCESS FILED IN THE NAME OF A FIRM
It is trite that any process filed in the name of a firm is a nullity.
SPDCN LTD Vs SAM ROYAL HOTEL NIG LTD (2016)8 NWLR (Part 1514)318 @ 342-343. PER PEMU, J.C.A.
PROCESS: WHO CAN VALIDLY SIGN A COURT PROCESS
In OKAFOR V NWEKE (2007)19 WLR SCI, the initiating process was signed by “JHC Okolo, SAN & CO”. It was held that, that was flawed and cannot be cured. This is because the processes were not issued by a legal practitioner known to law.
In BANK OF INDUSTRY LTD Vs AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR 43812 S.C. both parties are id idem that the Notice of Appeal and indeed the Appellant’s brief of argument were filed in the lower Court by a firm of a Legal Practitioner by name Oluwole Aluko & Co, which was certainly an artificial person and not a human being.
Ipso facto the Writ of Summons in the Suit the subject matter of this appeal was not signed by a human being, but an artificial person viz. G. C. M. Onyiuke’s Chambers.
My humble self in the case of FAFUNWA V BELLVIEW TRAVELS LTD (2013) LPELR 20800 C.A. held that where Court processes are signed by legal Practitioner in their partnership or firms’ names, without indicating the name of the Practitioner signing the process such is incompetent and liable to be struck out. PER PEMU, J.C.A.
PROCEEDING: EFFECT OF FAILURE TO COMPLY WITH THE REQUIREMENT OF RULES OF A PROCEEDINGS
Order 5 Rule (1) of the High Court (Civil Procedure) Rules of Anambra State 2016 provides the following
“Where, in beginning or purporting to begin any proceeding, there has, by reason of anything done or left undone, been a failure to comply with the requirement of these rules, the failure shall nullify the proceedings” PER PEMU, J.C.A.
PROCESS: WHETHER A FAULTY ORIGINATING PROCESS CAN BE CURED BY AMENDMENT
An originating process is not a pleading and it cannot be said to amount to one. In this case, the suit was dead on arrival as the originating process was not alive in approaching the portals of the Court.
Decidedly the Apex Court in declaring a suit a nullity observed that a faulty originating process cannot be cured by amendment. This question was considered by MUNTAKA – COOMASSIE JSC (of blessed memory) in M.W & AMP.T.A.S. Vs YAKUBU & AMP & ORS (2013) I.S.C 116-117 where he posited
“That the fatal effect of the signing of an Originating process by a Law firm is that the entire Suit was incompetent ab initio. It was dead at the point of filling. This highlights the painful realities that confront a litigant when Counsel fails to sign processes as stipulated by law. The Originating process as in this case is fundamentally and incompetent. It is inchoate, legally non-existent, and cannot therefore be cured by amendment”. PER PEMU, J.C.A.
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
1. L. O. CHUKWUMA COMMERCIAL AGENCIES (NIG) LTD 2. LONGINUS O. CHUKWUMA APPELANT(S)
And
CITIBANK NIGERIA LIMITED RESPONDENT(S)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the decision of the High Court of Justice of Anambra State holden in Nnewi, delivered on the 20th of May, 2013.
FACTS OF THE CASE
The 1st Appellant had approached the Respondent, to open a letter of credit in favour of the 1st Appellant’s customer abroad. This is for the purpose of the importation of goods for sale.
Terms of the initial facility included the following viz;
a) That before the irrevocable letter of credit would be opened by the respondent in favour of the 1st appellant’s overseas customers, the 1st appellant must deposit a 30% worth of the agreed sum of letter of credit, as a cash collateral for the facility.
b) The 2nd appellant, who is the Claimant/CEO of the 1st Appellant shall sign a personal guarantee of the letter of credit-opened at the instance of the 1st appellant, and
c) The bill of landing in respect of the goods imported with the letters of credit shall be delivered to the respondents, who holds same until the appellant deposits another 30% of the worth of the letter of
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credit.
After the offer of the funding to the 1st appellant, and upon a later transaction in respect of the offer letter of 11th June, the title documents for the 1st appellants’ building at Nnewi was deposited with the respondent as collateral.
Notably is that this transaction had no bearing or relationship with the two persons’ transactions/offer letters of January and February 2003 which were concluded.
The offer letter of 11th June, 2003 was for $300,000 USD and this was separated from the offer letter of 28th of February 2003 which was from $250,000.00USD.
All the sum borrowed from the respondent was fully liquidated before the parties entered into last and fresh transaction; which resulted in the Suit the subject matter of this appeal. Other subsequent transactions by way of efforts to pay were done.
The agreement on clearing and warehousing of the goods are contained in the letter of 6th January, 2004 from the respondent which is a consequence of the meeting between the respondent and the appellants at the latter’s office in Lagos. By the said letter, the appellants were to write to reply on or before the 10th
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of January 2004 “accepting the associated cost i.e. duty, warehousing and escort service,” by way of reimbursement.
After the deal resulting from the offer and acceptance was sealed, the Respondent by letter dated May 12th 2004, executed a Volte face against the said agreement of the 6th January, 2004 which now placed the onus of paying the charges and duties on the respondent, while the onus to repay the expenses was vested on the appellants.
The result of the breach of the terms of the agreement borne out of the accepted offer of 6th January, 2004, at the eleventh hour of the effort to salvage the 1st appellant’s over stayed goods was that the goods imported with the facility was auctioned by the Federal Government.
The 1st appellant lost its 30% of the worth of the letter of credit being cash collateral it deposited in tandem with the terms of the letter of credit.
The 2nd appellant offered no personal guarantee in respect of the facility in question. He only guaranteed its facility of 13th day of February 2002, in which the respondent did not demand for mortgage collateral. The facility was completely repaired before the
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last transactions wherein the respondent charged their procedure with different terms and conditions.
The Appellant states that evidence exist that the Respondent was assured that the building the subject of the mortgage collateral collapsed and in it were large quantities of goods belonging to the 1st appellant. This has prevented the 1st Appellant to liquidate the debt. It depended on and hoped to dispose of the goods and use the proceeds to liquidate the facility in order to collect the goods constructively in custody of the Respondent.
After the Respondent breached the Clearing agreement, the appellants secured another clearing agent who accepted to be paid after the goods must have been sold; the respondent declined to surrender the bill of lading in its custody to either the said clearing agent or to the appellants, pursuant to the proposal as contained in the appellants’ letter to the respondent dated 15th June 2004.
Despite the loss of the goods to the Federal Government auction, the 1st appellant made efforts to resolve the problems through a repayment proposal to the respondent by the mortgage deed between the Respondent and the
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1st Appellant, it was the obligation of the respondent to insure the property utilized as collateral (1st appellant’s block of 15 three-bedroom flats) with three warehoused at its ground floor.
The Respondent, pursuant to the discretionary provision in the mortgage deed, debited the 1st appellant’s account with the sum of N691,000.00 on 5th of June 2003 – “for the perfection of the mortgage deed”.
The Respondent failed to take up the issue of claim from the insurance Company as a source of the liquidation of the debt, when the 1st appellant had sent an expert Estate valuer’s report on the collapsed building site.
The 1st appellant then wrote to the respondent on 12th July 2005, demanding to know the insurance company alongside the necessary particulars of the policy, to enable the 1st appellant process the claims.
The Respondent rather than initializing the appropriate claims against the insurance company, it did nothing. The Appellants discovered that the Respondent was not making any effort to put claims in respect of the collapsed mortgage property, because it did not in fact insure the building.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Rather, the respondent held the shipping documents to the goods, imported and kept making demands for the liquidation of the sum borrowed via the mortgage.
The appellant filed their brief of argument on the 29th of November, 2017. It is settled by Nwafili Okwuosa, Esq. The Respondent’s brief was filed on the 12th March, 2019. It is settled by Tochukwu Onyiuke, Esq.
The Appellants amended brief was filed on the 17th July, 2020. The Appellants distilled twelve (12) issues for determination which are
1. Whether the originating process used in initiating Suit No: HN/99/2006, having been merely signed in the name of a firm of solicitors, is valid and competent.
2. Whether a Court that is lacking in jurisdiction can make any valid order or take any step, except to pronounce on the issue of its competence or lack of it.
3. Whether the photocopy of the certified true copy of a statement of account is admissible in evidence under Section 90 (1)(e) (i-iv), Evidence Act, 2011.
4. Whether the Respondent was entitled to charge interest at the agreed 22% interest rate on the facility (letter of credit sum), after the expiry date of
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31/03/2001, as therein claimed and awarded by the trial Court.
5. Whether assuming that the trial Court was wrong in its conclusion that the appellants were in complete agreement with the outstanding amount of indebtedness and accumulation of interests, as stated in the statement of account, in the absence of an express and unequivocal admission of indebtedness to the extent claimed by the respondent, the respondent succeeded in proving, on the balance of probability the appellants’ indebtedness as awarded by the trial Court.
6. Whether the trial judge was right to hold that the appellant’s case at the trial, regarding the unaccounted N320,000.00 deduction, was for a refund of the said sum of money or that the respondent misled them, by the deduction, into believing that it duly insured the mortgage property; hence, liable for the losses incurred as a result of the non-insurance of the property.
7. Whether the Court can validly raise an issue suo motu and decide same without an opportunity given to parties to be heard on the issue so raised.
8. Whether a bank which debits a customer’s account with the cost of an insurance
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policy supposedly created over a mortgage property, would be liable only to refund the money so deducted where, upon the loss of the mortgage property, it is discovered that the bank did not, in fact, insure the property.
9. Whether the trial Court’s conclusion that the 1st appellant “clearly understood that perfection of the mortgaged property did not include insurance of the mortgage property” is supported by evidence before the Court.
10. Whether in view of the draft made out in favour of the clearing agent, amongst other things, the trial Court’s interpretation of exhibits “W” “X”, “Y” and “Z”, as evidence between the parties that the 1st appellant shall provide the immediate cash covering the cost of clearing its goods trapped at the wharf, is supportable.
11. Whether, on the totality of the evidence before the trial Court, the onus of proving the essence of the bank draft enclosed to a letter of employment written to the clearing agent by the respondent rested on the 1st appellant to discharge.
12. Whether the trial Court’s finding that Exhibit
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“F”, being the personal guarantee given by the 2nd appellant as a condition for the 1st offer/letter of credit, was meant to be continuous and formed part of the last offer/letter of credit, it supported by evidence before the Court.
The Respondent on their part proffered two (2) issues for determination viz;
1. Whether the lower Court had the jurisdiction to entertain /hear the suit filed by the Appellants at the lower Court and proceed to deliver judgment therein?
2. Whether based on the preponderance of evidence required in civil suit and the rules guiding admissibility of documentary evidence, the lower Court was right when it entered judgment in favour of the Respondent?
On the 16th of September 2020, the Respondent withdrew his preliminary objection which he had submitted at pages 5 of the Respondents brief of argument.
Upon taking a cursory look at the respective issues proffered for determination, it is incumbent to address the first issue for determination proffered by the Appellant which issue goes to jurisdiction. If I find it tenable, then that knocks the bottom off the appeal and indeed the entire proceedings
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from its inception.
ISSUE ONE in the Appellant’s brief has this to say
“WHETHER THE ORIGINATING PROCESS USED IN INITIATING SUIT NO. HN/99/2006, HAVING BEEN MERELY SIGNED IN THE NAME OF A FIRM OF SOLICITORS IS VALID AND COMPETENT.”
A look at the Application for Writ of Summons reflected at Pages 1-2 of the Record of Appeal, it indicates that there is a signature thereon, but there is no known name to which the signature applies. It only says G. C. M. Onyiuke’s Chambers, G/01 Onyiuke & Co.
It is trite that any process filed in the name of a firm is a nullity.
SPDCN LTD Vs SAM ROYAL HOTEL NIG LTD (2016)8 NWLR (Part 1514)318 @ 342-343.
In the instant case, it is noted that no names whatsoever are reflected on the process as bearing the signature appended on the process. The names of Solicitors Chambers cannot attract a signature as required by law.
Indeed, the Writ of Summons filed on the 22nd of May 2006, the Statement of Claim filed on the 22nd of May 2006, the reply to Statement of Defence and counter claim filed on the 23rd of November 2006 (Page 224 of the Record of Appeal) and other processes
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were not signed by any legal entity – one enrolled to practice as legal Practitioner as envisaged under Section 2(1) of the Legal Practitioner Act 2004.
In OKAFOR V NWEKE (2007)19 WLR SCI, the initiating process was signed by “JHC Okolo, SAN & CO”. It was held that, that was flawed and cannot be cured. This is because the processes were not issued by a legal practitioner known to law.
In BANK OF INDUSTRY LTD Vs AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR 43812 S.C. both parties are id idem that the Notice of Appeal and indeed the Appellant’s brief of argument were filed in the lower Court by a firm of a Legal Practitioner by name Oluwole Aluko & Co, which was certainly an artificial person and not a human being.
Ipso facto the Writ of Summons in the Suit the subject matter of this appeal was not signed by a human being, but an artificial person viz. G. C. M. Onyiuke’s Chambers.
My humble self in the case of FAFUNWA V BELLVIEW TRAVELS LTD (2013) LPELR 20800 C.A. held that where Court processes are signed by legal Practitioner in their partnership or firms’ names, without indicating the name of the
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Practitioner signing the process such is incompetent and liable to be struck out.
In the instant case, it is apparent that the Plaintiff (Respondent in the present appeal) did not act in person as it is an artificial legal entity i.e (Nigerian International Bank Ltd).
Order 5 Rule (1) of the High Court (Civil Procedure) Rules of Anambra State 2016 provides the following
“Where, in beginning or purporting to begin any proceeding, there has, by reason of anything done or left undone, been a failure to comply with the requirement of these rules, the failure shall nullify the proceedings”
Section 2(1) of the Legal Practitioners Act Cap L11, Laws of the Federation of Nigeria 2004, defines a person entitled to practice as a legal practitioner, thus
“Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll”
No names of firms or companies are on the Rolls of the Supreme Court of Nigeria. It has to be the name of a person, a person with flesh and blood. A person that can see, feel and touch.
Section 24 of the Legal Practitioners Act
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defines a Legal Practitioners as
“A person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor either generally or for the purpose of any particular office proceeding.”
Again, a firm or company cannot by itself practice as a barrister or as a solicitor. It requires human beings to man their firms. Humans that give breath and life to their firms and companies. These humans are those entitled to append their names and signatures on Court processes to make their processes legal.
Any flaw in an originating process is fatal and indeed incurable.
Issues such as this had been pronounced by the Apex Court time without number. I shall attempt to cite some of the cases.
BRAITHWAITE V SKYE BANK PLC (2013)15 LRN.27 – (2013)5 NWLR (pt 1346)1 @ 16; MINISTRY OF WORKS & TRANSPORT ADAMAWA & ORS V ALHAJI ISIYAKU YAKUBU ENT. LTD (2013)24 WRN 1. OKARIKA V SAMUEL )2013)7 NWLR (Pt 1352 – LPELR. 24302(S.C.) 1 @ 17.
In HAMZAT V SANNI (2015) LPELR 24302 (SC)1 @ 17, the Apex Court held inter alia that the entire trial was an exercise in futility
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in that two Statements of Claim by the Appellants, on which the evidence of their witnesses were based, were signed by one “Olumuyiwa Obanena & Co.” There were therefore no valid Statement of Claim.
I am of the view that this Issue is one that must be answered in the negative. This renders the entire trial in the Court below in Suit No HN/99/2006, a nullity.
I share the submissions of the Appellant in Paragraph 4.1.14 of his brief of argument that where a Court finds that a preliminary issue/objection to the competence of either the proceedings of the Court below or the one before it, succeeds, there is no need to go into the merit of the appeal as this would amount in my view to an academic exercise. – UMUEZE V UMUEZE (2011)16 WRN. 132@149; A-G GENERATION V ANPP (2003)27 WRN 62.
It is pertinent to state here that the Court may confine itself to an issue which goes to the foundation of a cause, matter or appeal, which in its view raises a fundamental issue, in striking out the entire Suit and/or appeal.
From the various processes already filed, the Respondents cannot be said to be ignorant of this because in the Court
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below, they had exchanged processes with the Appellant.
Respondent in its brief at Page 6 of the Amended Respondents brief of argument, had submitted that he sought leave of Court to amend his Writ of Summons, which the Court below granted.
With respect, a Writ of Summon can be amended before it is served on the adverse party. To allow an amendment after it was served would be overreaching. More so, it is on record that the Plaintiff had made the same error in all its processes sub-sequentially filed.
An originating process is not a pleading and it cannot be said to amount to one. In this case, the suit was dead on arrival as the originating process was not alive in approaching the portals of the Court.
Decidedly the Apex Court in declaring a suit a nullity observed that a faulty originating process cannot be cured by amendment. This question was considered by MUNTAKA – COOMASSIE JSC (of blessed memory) in M.W & AMP.T.A.S. Vs YAKUBU & AMP & ORS (2013) I.S.C 116-117 where he posited
“That the fatal effect of the signing of an Originating process by a Law firm is that the entire Suit was incompetent ab initio. It
15
was dead at the point of filling. This highlights the painful realities that confront a litigant when Counsel fails to sign processes as stipulated by law. The Originating process as in this case is fundamentally and incompetent. It is inchoate, legally non-existent, and cannot therefore be cured by amendment”.
To submit that an Originating process amounts to a pleading is a gross misconception.
The result is that the Suit, the subject matter of this appeal is a nullity and same is liable to be set aside and same is hereby set aside.
Accordingly, Suit No. HN/99/2006 is hereby dismissed as being a nullity.
N100,000 costs in favour of the Appellant.
CHIOMA NWOSU-IHEME, J.C.A.: I had the advantage of reading the draft of the lead Judgment delivered by my learned brother, R. N. PEMU, (JCA).
I agree with the reasoning and conclusion which I adopt as mine. I accordingly allow this appeal, dismiss Suit No HN/99/2006 for being a nullity.
I also award N100,000 costs in favour of the Appellants.
BITRUS GYRAZAMA SANGA, J.C.A.: I agree.
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Appearances:
NWAFILI OKWUOSA, ESQ. For Appellant(s)
TOCHUKWU ONYIUKE, ESQ. For Respondent(s)
