MR. AUGUSTINE ARUEZE & ORS v. CHIEF MIKE A. NWAUKONI (2018)

  1. AUGUSTINE ARUEZE & ORS v. CHIEF MIKE A. NWAUKONI

In The Supreme Court of Nigeria

On Friday, the 14th day of December, 2018

SC.55/2011

 

JUSTICES

MUSA DATTIJO MUHAMMAD    Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS    Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE    Justice of The Supreme Court of Nigeria

PAUL ADAMU GALUMJE    Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE    Justice of The Supreme Court of Nigeria

Between

 

  1. MR. AUGUSTINE ARUEZE
    2. MR. OKONKWO IYASE
    3. CHIEF COLLINS AFUWAH
    (for themselves and on behalf of Umu-Uti family of Agidiase quarter, Ogwashi-Uku) Appellant(s)

AND

CHIEF MIKE A. NWAUKONI  Respondent(s)

SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This appeal is brought by the Appellants/Cross Respondents and the Cross-Appeal brought by the Respondent/Cross-Appellant are against the judgment of the Court of Appeal, Benin Division delivered on 12th July 2010 in Appeal No. B/CA/94/2009. The Court of Appeal reversed the judgment of the High Court of Delta State, Ogwashi-Uku Division (‘the trial Court) delivered on 20th March 2008 in favour of the Appellant/Cross Respondents in Suit No. O/9/2005. The lower Court however made some findings against the Respondent as laid-out at pages 464-542 and at 712-760 of the Record of Appeal for the two judgments respectively.

The Appellants/Cross-Respondents expressed dis-satisfaction with the judgment of the Court of Appeal and filed a Notice of Appeal dated 13th July 2010 and an amended Notice of Appeal deemed 15th June 2017 against the decisions of Court of Appeal. The Respondent/Cross-Appellant who was the Appellant at the Court of Appeal is also not totally satisfied with some parts of the judgment wherein the Court of Appeal held that the suit that

 

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culminated in the instant was properly constituted notwithstanding that all the families interested/affected in the subject matter of the suit (the chieftaincy title) were not joined as parties in the suit. The grievances of the Respondent’s Cross-Appeal are contained in the `Notice of Cross Appeal’ filed 4th November 2012 and deemed on 15th June, 2017.

SUMMARY OF FACTS:
The suit from which this appeal arose was filed by the Appellants (as Plaintiffs) in a representative capacity on behalf of themselves and their family (Umu-Uti family). The suit sought specific declarations as particularly contained in the Amended Statement of Claim beginning from page 360, particularly at pages 365-366 of the Record of Appeal.

The Cross-Appellant raised a Preliminary Objection on the jurisdiction of this Court to entertain an appeal which emanated from a process not initiated by due process of the Court at trial. The basis of the objection is that the ‘Amended Statement of Claim No.3 filed on the 20th December, 2006 at pages 360-366 of the Record of appeal upon which the trial Court predicated its judgement at page 465

 

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thereof was signed “for” by a person not disclosed on the process. Having raised a Preliminary Objection, by law and procedure, it takes precedence, and must be determined and resolved before taking further steps in this Judgment.

DETERMINATION OF THE PRELIMINARY OBJECTION
The Respondent/Cross-Appellant has raised an objection to the jurisdiction of this Court which is premised on the fact that the ‘Amended Statement of Claim at pages 366 of the Record of Appeal was signed by an undisclosed person for L.E. Eguakun Esq. for Ewah & Ewa. The Respondent/Cross-Appellant reiterated the principle of law established by this court in OKAFOR VS NWEKE (2007) 10 NWLR (Pt. 1043) Pg, 521 at 531 Para G-H; OKETADE VS ADEWUNMI (2010) 8 NWLR (Pt. 1195) Pg 63 at 74-75 PARA F-A; FBN PLC VS MAIWADA (2013) 5 NWLR (Pt.1348) 444 to the effect that the proper procedure for signing on behalf of somebody else is to disclose the name and identity of the person who signed and for whom it was signed if signed on behalf of another person in chambers- the two names must be disclosed.

The Respondent/Cross-Appellant contends further that the person who signed for L.E.

 

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Eguakun Esq., ought to have disclosed his/her name and identity on the process. Thus, relying on the above authorities and the decision of the Court of Appeal in VF WORLDWIDE HOLDINGS LIMITED VS DANA SERVICES (2014) LPELR 24087 (CA), the Respondent contends that the trial Court, the Court of Appeal and this Honourable Court lacked and remain lacking in jurisdiction to entertain the Appellants’ suit, as it is predicated on a defective process- amended Statement of Claim No. 3- not initiated by due process of law. The Respondent/Cross-Appellant in conclusion urged this Court to uphold the objection by declining jurisdiction to entertain the appeal and to set aside the judgment of the trial Court and the suit for being incompetent.

In its response to the Preliminary Objection, the Appellants argued that the law is that, by virtue of Section 2 (1) and 24 of the Legal Practitioners Act Cap 207 Laws of the Federation of Nigeria 2004, a person is entitled to practice as a barrister and solicitor either generally or for the purpose of any particular office if his name is on the roll of call of legal practitioners in Nigeria.

 

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However, the Appellant posited further that the crux of the Respondent’s contention is not whether or not a legal practitioner signed the process but that the name and identify was not disclosed.

The Appellant urged the Court to compare the signature on the Amended Statement of Claim No. 3 with the signature on the Plaintiffs’ final written address at pages 403-429 of the record, particularly at page 429 to come to the conclusion that both were signed by ‘Stanley O. Ibhayehor’ a legal practitioner of Ewah & Ewa, Solicitors to the Appellants. The Appellants further urged this Court to compare the signature by virtue of Section 101 (1) of the Evidence Act, 2011 and further urged this Court to put itself in the shoes of the trial Court. The Appellants referred to the cases of WASSAH VS KARA (2015) 4 NWLR (Pt. 1449) 374 at 396-397, Para G-A; CGG (NIG.) LTD. VS AMINU (2015) 7 NWLR (Pt.1459), 577 at 594 per Rhodes Vivour JSC.

In closing, the Appellants submitted that the Courts have moved away from technicality to substantive justice. The Appellants placed reliance on cases of FRN VS DAIRO (2015) 6 NWLR (Pt. 1454) 141 at 170-171, Para. H-A, per Nweze JSC and ABUBAKAR VS YAR’ADUA (2008) 4

 

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NWLR (Pt. 1078) 465, 511 Para. B. The Appellants urged this Court to hear the appeal on the merit and dismiss the Notice of Preliminary Objection.

The term jurisdiction imports and connotes the authority, competence and legal power which a Court of law or Tribunal possesses to hear a matter before it and reach a decision on such a matter. The law is settled beyond peradventure that an issue of jurisdiction once raised must be resolved. See A – G., LAGOS STATE VS DOSUNMU (1989) 3 NWLR (Pt. 111) 552; (1989) 6 SCNJ 134, MADUKOLU VS NKEMDILIM (2001) 46 WRN 1; (1981) 1 NCLR 135, SOFEKUN VS AKINYEMI (1981) 1 NCLR    135. Also in the case of: A- G. RIVERS SATE VS A. G. AKWA IBOM STATE (2011) 8 NWLR (Pt. 1248) P. 31 at P.214, Paras. B – D, Rhodes-Vivour, JSC.
Jurisdiction is a threshold matter, and so it must be resolved at the earliest opportunity, as any proceedings conducted without jurisdiction would amount to a nullity no matter the outcome of the proceedings. The issue of jurisdiction is so important that it can be raised at any stage of the proceedings even on appeal or in the Supreme Court for the first time.

 

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See BRONIK MOTORS LTD. AND ANOR. VS WEMA BANK LTD. (1983) 1 SCNLR P. 296; USMAN DAN FODIO UNIVERSITY VS KRAUS THOMPSON ORGANISATION LTD. (2001) 15 NWLR (Pt. 736) P. 305. By its prominence, issue of jurisdiction can be raised informally, although it is desirable some process is filed so that the adverse party is not taken by surprise.
Jurisdiction is the very basis on which any Tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. This vital and overwhelming importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to this Court; afortiori the Court can suo motu raise it… It has even been said that it is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity. See NTUKS VS NIGERIAN PORTS AUTHORITY (2007) All FWLR (Pt. 387) 809 at 828, Paras. C – G, (SC); (2007) 5 – 6 SC 1.

The law is settled that a point of law can be raised on a preliminary objection by a party to a suit if the point of law will be decisive of the whole litigation.

 

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Therefore, where there is a point of law which if decided one way is going to be decisive of the whole litigation as in the instant case that advantage ought to be taken of the facilities afforded by the rules of Court to have disposed as soon as raised. See N.V. SCHEEP VS MV “S. ARAZ” (2000) 12 SCNJ 24, (2001) FWLR (Pt. 34) 543; EVERETT VS RIBBANDS (1952) 2 QB 198; ADDIS VS CROCKER (1961) 1 QB 11; MADU VS ONONUJU (1986) 3 NWLR (Pt. 26) 23; YEOMAN CREDIT LTD. VS LATTER (1961) 2 All ER 281.” Per Ogbuagu JSC.

The preliminary objection raised by the Respondent/Cross-Appellant is anchored on the validity or competence of the Originating process, the Amended Statement of Claim No.3. filed by the Appellants, and whether on the face of the vital process it was validly issued and signed by ascertainable person with competence to issue such process through the Court. I dare say, for the purpose of the originating process, the validity cannot be inferentially drawn. It is one that must be drawn with mathematical precision, leaving no room for conjecture as to the personality of the originator, in this case, and a legal practitioner.

 

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I’m persuaded, but not otherwise convinced of the provision of Section 101 (1) of the Evidence Act, 2011 cited by the Appellants at pages 3-4 of its Reply brief. For elucidation, I reproduce same thus:
“(1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.”
The purport of the above section is to clear doubts by comparing signatures, writings, seals or finger impressions. While this may be necessary in respect of issues as to validity of two documents, the snag of the attempt of the Appellants to rely on the above provisions is that there is only one document in contention, not two. The only document on which the preliminary objection of the Respondent is based is and remains Amended Statement of Claim No. 3. Thus, extraneous illustration or comparison

 

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by inferences cannot be introduced unless the objection is based on two documents. If I hear the Respondent clearly, it says the originating process with which the suit was commenced is defective to the extent that Amended Statement of Claim No. 3 was not signed by a person ascertainable in law and procedure, and no contention is made by the Respondent of any other document in this appeal.
The cases of OKAFOR VS NWEKE (Supra) OKETADE VS ADEWUNMI (Supra) FBN PLC v. MAIWADA (Supra) cited above have settled the matter with satisfactory finality, to the effect that the proper procedure for signing on behalf of somebody else is to disclose the name and identity of the person who signed and for whom it was signed if signed on behalf of another person in chambers- the two names must be disclosed. I can’t agree less with the Respondent that the originating process, the Amended Statement of Claim No. 3 was defective as issued. This goes to the jurisdiction of this Court to entertain this appeal.
I will only need to add, the position of this Court on its competency to proceed with any matter placed before it. See:- the celebrated case of MADUKOLU AND ORS VS NKEMDILIM (1962) 1 All NLR 587 at 594.

 

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Bairamian F. J. (as he then was) stated the principles which have been accepted in successive case in this Court. “A Court is Competent”; he said, when:-
“(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) 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
(3) The case comes before the Court initiated by due process of Law and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided; the defect is Extrinsic to the adjudication.”
The Amended Statement of Claim No. 3, which is an initiating process, is already found to be defective. This action, which is founded on it, cannot be said to have been initiated by due process of Law. The defect is extrinsic to the adjudication of this case. This Court cannot proceed to hear this case, as the

 

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condition precedent to the exercise of Jurisdiction is absent. The cross Appellants Preliminary Objection filed on the 20/12/2006 at pages 360 – 366 of the record of appeal is hereby upheld. The Entire appeal collapses, and it is hereby struck out by this Court.
Parties to bear their own Costs.

MUSA DATTIJO MUHAMMAD, J.S.C.: Having had a preview of the lead judgment of my learned brother SIDI DAUDA BAGE JSC just delivered, I entirely agree with the reasoning and conclusion therein that the appeal being incompetent be struck out.

The respondent/cross appellant had raised a preliminary objection as to the competence of the suit that brought about the instant appeal. The amended statement of claim, an originating process, learned senior counsel for the respondent/cross appellant submits, not being signed by a person known to law, cannot give rise to a competent action. The two Courts below and indeed this Court, it is submitted, cannot proceed on an action initiated on a defective process. Reliance has been put on Okafor V. Nweke (2007) 10 NWLR (Pt. 1043) 527 at 531 and FBN Plc V. Maiwada (2013) 5 NWLR (Pt. 1348) 444.

 

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Learned counsel for the appellants/cross respondents posits otherwise. He insists that there is due compliance with Sections 2(1) and 24 of the Legal Practitioners Act Cap 207 Laws of the Federation 2004 by which a legal practitioner is required to sign the initiating process. Respondent/cross appellant’s complaint that hinges on the identity of the person who signed the document, it is contended, does not avail the respondent. To discredit appellants’ amended statement of claim on the grounds alluded to by the respondent, it is further contended, is to enthrone technicalities which this Court in FRN V. Dairo (2015) 6 NWLR (Pt. 1454) 141 at 170 – 171 and Abubakar V. Yar Adua (2008) (Pt. 1078) 465 at 511 has held Courts must refrain from.
In decisions of this Court too numerous to call, a Court is said to have competence or jurisdiction to entertain a matter when (1) It is properly constituted as regard numbers and qualification of the members of the bench so that no member is disqualified for one reason or another. (II) the subject matter of the case is within its jurisdiction and there is no

 

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feature of the case which prevents the Court from exercising its jurisdiction and (III) the case comes before the Court initiated by due process of the law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu & Ors V. Nkemdilim (1962) 2 SCNLR 341 and Cotecna International Ltd V. Ivory Merchant Bank Ltd (2006) LPELR-896 (SC), (2006) 4 SC (Pt 1) 1.
This Court in Okafor V. Nweke (supra), Oketade V. Adewumi (supra) and FBN Plc V. Maiwada (supra) has insisted that an initiating process such as the appellants’ Amended Statement of claim No. 3 herein is competent only if same is signed by a legal practitioner. Not having been so signed, it is further held, it is defective and incapable of founding any competent action. The respondent has demonstrated by his objection the defect in the Amended Statement of claim on which the appellants purport to have initiated their action. The action so commenced, I agree with learned respondent’s counsel, is incompetent. An appeal founded on an action that is itself incompetent cannot be otherwise. I so hold.
 

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It is for the foregoing and the fuller reasons contained in the lead judgment that I also strike out the incompetent appeal. I too make no order as to costs.

KUMAI BAYANG AKA’AHS, J.S.C.: I had a preview of the judgement just delivered by my learned brother, Bage JSC. I agree that the preliminary objection is successful.

The 3rd amended statement of claim is copied from pages 360-366 of the records. At page 366 is the signature of the person who signed it. He signed “for L. E. Eguakun Esq” but he did not write his name. Since this is the amended statement of claim on which issues were joined and evidence of witnesses taken leading to the judgement delivered by the learned trial Judge on 20 March, 2008, it must be ascertained that the person who signed it was a legal practitioner in accordance with Sections 2(1) and 24 of the Legal Practitioners Act Cap. 207 Laws of the Federation of Nigeria 1990. The case of Okafor v. Nweke (2007) 10 NWLR [Pt. 1043) 521 has settled the controversy as to who is mandatorily required to sign the originating process. The preliminary objection is therefore sustained and the said amended statement of claim is struck out as

 

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being incompetent. All the proceedings and judgement in the trial Court have no base on which they were conducted. They are a nullity and are hereby set aside. Similarly the Notice of Appeal to the Court of Appeal and the judgement of that Court are incompetent and accordingly set aside. Equally the notice of Appeal to this Court is incompetent and same is struck out.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment just delivered by my learned brother, Bage, JSC, and I agree with him that in the circumstances of this case, where an originating process was signed “for” by a person not disclosed on the process, the Preliminary Objection raised by the Cross-Appellant must be upheld and the Appeal must be struck out.
The issue of competence of an originating process goes to the jurisdiction of the Court and where it lacks jurisdiction, the Court cannot make any order whatsoever or invoke any section of the law. It is on this basis that I find it difficult to uphold the argument of the Appellants with regards to Section 22 of the Supreme Court Act.

 

 

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My learned brother, Bage, JSC, addressed the issue squarely in the lead Judgment, and adopting his reasoning as mine, I will simply say that the trial Court had no jurisdiction as at the time it delivered its Judgement, therefore, neither the Court of Appeal nor this Court has jurisdiction to look into whether its decision is right or wrong.
The said Preliminary Objection raised by the Cross-Appellant is therefore sustained and the Appellants’ Appeal is hereby struck out.
The Parties are to bear their own costs.

PAUL ADAMU GALINJE, J.S.C.: The Appellants herein who were plaintiffs at the trial Court initiated an action in a representative capacity on behalf of himself and the family of Umu-Uti family in which they claimed specific declarations as contained in the Amended statement of claim No.3. The Respondent issued a preliminary objection to the jurisdiction of this Court to entertain an appeal which emanated from a process not initiated by due process of the Court of trial. It is the Respondents contention that the Amended statement of claim No. 3

 

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upon which the case was decided was signed by an unknown person for L. E. Eguakun Esq., for Ewah and Ewa. In support of this objection, Learned Counsel for the respondent called in aid the authorities in Okafor v Nweke (2007)10 NWLR (Pt. 1043) 521 at 531 paras G -H; Oketade v Adewunmi (2010)8 NWLR (Pt.1195) 63 at 74 – 75 paras F-A; and FBN PLC v Maiwada (2013) 5 NWLR (Pt. 1348) 444.
In Okafor v Nweke (Supra), the applicants on the 19th December, 2005, filed a motion on notice at the Supreme Court, seeking inter alia an order of extension of time within which to apply for leave to cross appeal, leave to cross appeal and extension of time to cross appeal. The motion was signed by “J. H. C. Okolo, SAN & Co.” The motion was supported by an affidavit to which was exhibited the proposed notice of cross appeal. The proposed notice of appeal was signed by J. H. C. Okolo, SAN & Co. The Applicants filed a brief of argument in respect of the application and the brief was also signed by J. H. C. Okolo SAN 86 Co. The 1st -3rd Respondents filed a counter affidavit and in their brief of argument raised the issue of

 

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incompetence of the applicants’ motion on notice, notice of cross appeal and the brief of argument. This Court considered the provisions of Sections 2 (1) and 24 of the legal Practitioners Act Cap.207, Laws of the Federation of Nigeria 1990 and held that the processes filed in the application, particularly the motion on notice filed on 19/5/05, the proposed notice of appeal and the applicants’ brief of argument in support of the motion were incompetent in that they were not issued by a legal practitioner known to Law. They were accordingly struck out with N1,000.00 costs.
In the instant case, the Amended statement of claim No.3 is a Court process which required the signature of a legal practitioner. It was signed by an unknown person, to that extent it is incompetent. The decision of this Court in Okafor v Nweke (Supra) and other authorities which have been cited and relied upon by Learned Counsel for the Respondent have not been set aside or overruled despite several attempts to have them set aside by legal practitioners. I am bound by those decisions as I do not think that the matters so arisen in them border on technicalities.

 

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The Amended statement of claim No.3 upon which the case was decided at the trial Court is incompetent.
The decision of the trial Court would have been a striking out of the said Amended statement of claim No.3 since it failed to do so, I, by virtue of Order 8 Rule 12(2) of the Supreme Court rule, do have the power to strike out the said statement of claim. Accordingly the Amended statement of claim, No.3 is hereby struck out for being incompetent. Having so struck out the Amended statement of claim No.3, the base upon which the Appellants’ claims stood has been removed. This being so all the proceedings and the judgment founded on the Amended statement of claim No.3, must collapse. Accordingly they have collapsed like a pack of cards and are accordingly struck out. The notice of appeal in respect of this appeal is therefore incompetent and it is accordingly struck out.

 

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Appearances:

  1. Ofodile Okafor, SAN with him, O.F. Idenyi-Attah and H.C. Okoro For Appellant(s)

Ricky Tarfa, SAN with him, C. Okwuoyi, Prof. D. Amokaye, M. Bamidele and P. Udo-Inyang For  Respondent(s)

 

Appearances

  1. Ofodile Okafor, SAN with him, O.F. Idenyi-Attah and H.C. Okoro For Appellant

 

AND

Ricky Tarfa, SAN with him, C. Okwuoyi, Prof. D. Amokaye, M. Bamidele and P. Udo-Inyang For Respondent

 

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