MOLOKWU v. OBUDIKE & ORS
(2022)LCN/17134(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/AW/170/2018
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
IKECHUKWU MOLOKWU APPELANT(S)
And
1. JACOB OBUDIKE 2. ARINZE OBUDIKE 3. NNAMDI OBUDIKE RESPONDENT(S)
RATIO
CONDITIONS UNDER WHICH A COURT CAN ASSUME JURISDICTION TO ENTERTAIN A MATTER
The conditions under which a Court can assume jurisdiction to entertain a matter are clearly spelt out in S. P. D. C. (NIG) LTD V. AGBARA (2016) ALL FWLR (PT. 825) PG. 85.
They are:
1. That the subject matter of the case is within its jurisdiction.
2. That there is no feature in the case which prevents the Court from exercising its jurisdiction.
3. That the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. PER NWOSU-IHEME, J.C.A.
THE POSITION OF LAW ON PREPARING ORIGINATING PROCESSES
ORDER 6 RULE 1 of the High Court (Civil Procedure) Rules Anambra State, 2006 provides:
“Originating process shall be prepared by a Plaintiff or his Legal Practitioner and shall be clearly printed on Opaque A4 paper of good quality.”
ORDER 6 RULES 2(3) of the same Anambra State High Court Civil Procedure Rules provides:
“Each copy shall be signed by the Legal Practitioner or by a Plaintiff where 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)
The said Writ of Summons the subject matter of this Appeal is at pages 1-3 of the Record of Appeal. A look at the said Writ shows clearly that it was neither signed by the Plaintiff nor his Legal Practitioner.
The penalty for failure to comply with the said Rules is provided for in ORDER 5 RULE 1 (1) of the same High Court Civil Procedure Rules.
It provides:
“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 requirements of these rules, the failure shall nullify proceedings.”
Since the validity of the originating process in a proceeding is a sine qua non to the legitimacy of any Suit, the failure in the instant case by the Plaintiff (Appellant herein) or his Legal Practitioner to sign the said Writ in the manner required by the Rules as reproduced above, has fundamentally affected the validity of the Appellant’s Suit at the Court below and has resulted in fatal consequences. It has therefore robbed the lower Court of jurisdiction. This is because the jurisdiction of the Court has not been activated ab initio.
The Supreme Court in OKARIKA V. SAMUEL (2013) NWLR (PT. 1353) PG 585 stated in very lear terms that:
“Once the 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 that process is invalid and the jurisdiction of the Court is ousted, the defect is taken as incurable.” PER NWOSU-IHEME, J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of the Awka Division of the Anambra State High Court, presided over by D. A. Onyefulu, J,. The Judgment was delivered on the 5th day of February, 2018 in Motion No A/1602M/2017.
The Respondents herein as Defendants at the Court below had filed a Motion challenging the competence of the Suit on the ground that the Writ of Summons was neither signed by a Legal Practitioner nor the Plaintiff himself. In a considered Ruling the learned trial Judge upheld the objection of the Respondents and struck out the Suit for being incompetent and for want of jurisdiction to entertain the Suit.
This Interlocutory Appeal is predicated on the said Ruling.
Even though Counsel for the Respondents Emeka Ejike Esq. raised a Preliminary Objection at pages 3 – 4 of his brief, he did not mention it while adopting his brief. The said Preliminary Objection is therefore deemed abandoned. The Appellant’s brief which was filed out of time is hereby ordered by this Court as having been properly filed and served on the 1st day of February, 2022. Learned Counsel for the Appellant E. C. Uzoka Esq. distilled two issues for determination as follows:
i. “Whether the trial Court was right in striking out the Suit on the mere allegation that neither the Plaintiff nor his Counsel signed an alleged Writ of Summons not exhibited.
ii. Whether this case can subsist or exist on the originating process as Writ of Summons as shown on pages 6 to 15 of Record of Appeal.”
Learned Counsel for the Respondents Emeka Ejike Esq on the other hand distilled a sole issue thus:
“Whether the Court below was right in striking out the Suit for lack of jurisdiction to entertain same due to non-signing of the Writ of Summons by the Plaintiff or his Counsel.”
I will make use of this sole issue in the determination of this Appeal. The submissions of both Counsel are as argued in their respective briefs. I do not intend to reproduce same here.
Jurisdiction is the authority by which Courts and Judicial Officers take cognizance of and decide cases.
The conditions under which a Court can assume jurisdiction to entertain a matter are clearly spelt out in S. P. D. C. (NIG) LTD V. AGBARA (2016) ALL FWLR (PT. 825) PG. 85.
They are:
1. That the subject matter of the case is within its jurisdiction.
2. That there is no feature in the case which prevents the Court from exercising its jurisdiction.
3. That the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Again the High Court (Civil Procedure) Rules of Anambra State provided answers to the issue now on Appeal.
ORDER 6 RULE 1 of the High Court (Civil Procedure) Rules Anambra State, 2006 provides:
“Originating process shall be prepared by a Plaintiff or his Legal Practitioner and shall be clearly printed on Opaque A4 paper of good quality.”
ORDER 6 RULES 2(3) of the same Anambra State High Court Civil Procedure Rules provides:
“Each copy shall be signed by the Legal Practitioner or by a Plaintiff where 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)
The said Writ of Summons the subject matter of this Appeal is at pages 1-3 of the Record of Appeal. A look at the said Writ shows clearly that it was neither signed by the Plaintiff nor his Legal Practitioner.
The penalty for failure to comply with the said Rules is provided for in ORDER 5 RULE 1 (1) of the same High Court Civil Procedure Rules.
It provides:
“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 requirements of these rules, the failure shall nullify proceedings.”
Since the validity of the originating process in a proceeding is a sine qua non to the legitimacy of any Suit, the failure in the instant case by the Plaintiff (Appellant herein) or his Legal Practitioner to sign the said Writ in the manner required by the Rules as reproduced above, has fundamentally affected the validity of the Appellant’s Suit at the Court below and has resulted in fatal consequences. It has therefore robbed the lower Court of jurisdiction. This is because the jurisdiction of the Court has not been activated ab initio.
The Supreme Court in OKARIKA V. SAMUEL (2013) NWLR (PT. 1353) PG 585 stated in very lear terms that:
“Once the 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 that process is invalid and the jurisdiction of the Court is ousted, the defect is taken as incurable.”
In the premise, the sole issue is resolved against the Appellant and in favour of the Respondents. This Interlocutory Appeal is unmeritorious and is hereby dismissed.
The Ruling of D. A. Onyefulu J, of Awka Division of the Anambra State High Court, delivered on the 5th day of February, 2018 in Motion No A/1602M/2017 is hereby affirmed.
I make no order as to costs.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, CHIOMA E. NWOSU-IHEME, PhD-JCA and I am in agreement with the reasoning and conclusions in disallowing the Appeal as completely lacking in merit. I subscribe to the consequential orders made thereto.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have read before now the lead judgment of my learned brother, CHIOMA NWOSU-IHEME, JCA. I agree with the reasoning and conclusions contained therein.
Appearances:
E. C. Uzoka, Esq,. For Appellant(s)
Emeka Ejike, Esq,. For Respondent(s)
