MR. GREGORY UMARI MGBADO & ORS v. ELDER SYLVESTER AGI IGOGO & ANOR (2019)

MR. GREGORY UMARI MGBADO & ORS v. ELDER SYLVESTER AGI IGOGO & ANOR

(2019)LCN/12937(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2019

CA/C/33/2016

RATIO

JURISDICTION: MATTERS OF JURISDICTION ARE TO BE HANDLED FIRST

In due loyalty to the dictate of the law, I will attend to issue E (five) first. The reason is located in the kernel of the issue which is plain. It centres on the jurisdiction of the lower Court to hear the suit which metamorphosed into this appeal. The law compels the Courts to handle issue of jurisdiction first when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will pay total allegiance to this legal commandment so as not to insult the law.PER OBANDE FESTUS OGBUINYA, J.C.A.

JURISDICTION: DEFINITION

Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajamole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR (Pt.798) 1;Ndaeyo v. Ogunaya (1977) 1 IMSLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175.PER OBANDE FESTUS OGBUINYA, J.C.A.

JURISDICTION: ESSENTIAL INGREDIENTS

A Court of law is invested with jurisdiction to hear a matter when: 1. it is properly constituted as regards numbers and qualifications of 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 fulfillment of any condition precedent to the exercise of jurisdiction?, see Madukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81;Dairo v. UBN (2007) 16 NWLR (Pt. 1059) 164; Okereke v. Yar?Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. These three ingredients must co-exist in order to vest jurisdiction in a Court.PER OBANDE FESTUS OGBUINYA, J.C.A.

WRIT OF SUMMONS: THE EFFECT OF A WRIT OF SUMMONS NOT BEING SIGNED BY A LEGAL PRACTTITONER

Now, the appellants chief grievance is that the respondents? writ of summons was not signed by a legal practitioner which impinged on the jurisdiction of the lower Court to entertain it. The appellants hinged his grouse on the provision of Order 8 Rule 2(3) of the High Court Rules.
It is settled law, that an originating process, like writ of summons, originating summons and notice of appeal, must be signed by a legal practitioner, who franked it, or a litigant in order to infuse validity into it. The legal practitioner, in the mind of the law, is one entitled to practice as a barrister and solicitor and whose name is on the roll of legal practitioners as decreed by the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004 (hereunder abridged to the Act). In other words, an originating process not signed by a legal practitioner, as ordained by the above provisions of the Act and the rules of Court, is infested with incompetence with the attendant liability of expunction. The incompetence divests the Court of the jurisdiction to adjudicate over the action, which hosts it, in deserving circumstances, see Registered Trustees, The Apostolic Church, v. Akindele (1967) NMLR (Pt. 263); Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; Const. Res. (Nig.) Ltd. v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 592; Okonkwo v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 614; Bala v. Dikko (2013) 4 NWLR (Pt. 1343) 52; Braithwaite v. Skye Bank (2013) 5 NWLR (Pt. 1346) 1; FBN Plc. v. Maiwada (supra)/(2013) 5 NWLR (Pt. 1348) 444; Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570; Min., W & T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481; Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19; Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 1375) 466; Dankwambo v. Abubakar (2016) 2 NWLR (Pt. 1495) 157; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd(2016) 8 NWLR (Pt. 1514) 318; Tanimu v. Rabiu (2018) 4 NWLR (Pt. 1610) 505; B.O.I. Ltd. v. Awojugbagbe Light Ind. Ltd.(2018) 6 NWLR (Pt. 1615) 220; Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420.PER OBANDE FESTUS OGBUINYA, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

1. MR. GREGORY UMARI MGBADO
2. AKPAK UGAH
3. MR. LOUIS AGBOJE UGAH-IFU
4. MR. EMMANUEL UGAN
5. MR. AKPOTU NEJI
(For themselves & on behalf of Ikariku Community-Ishibori, Ogoja) Appellant(s)

AND

1. ELDER SYLVESTER AGI IGOGO
2. MR. IGBAJI UDIDI
(For themselves & as accredited members of Ukamusha Community-Ishibori, Ogoja) Respondent(s)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal queries the correctness of the decision of the High Court of Cross River State, holden at Ogoja (hereinafter referred to as ?the lower Court?), coram judice: Bassey E. Ikpeme, J., in Suit No. HJ/10/2012, delivered on 15th October, 2014. Before the lower Court, the appellants and the respondents were the defendants and the claimants respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The respondents claimed ownership, from time immemorial, of the piece of land lying, being and situate behind the Ministry of Works Ogoja from Aya River up to the boundary with Ugaga in Yala Local Government Area of Cross River State. They exercised acts of ownership and possession thereon without let or hindrance. Sometime in 2011 and 2012, the appellants unlawfully entered the said land by surveying it and leasing out same to people which deprived the respondents of revenue therefrom. Sequel to these, the respondents beseeched the lower Court, via a writ of summons filed on 6th March, 2012, and tabled against

the appellants, jointly and severally, the following reliefs.
1. A declaration that the entry into part of claimants? land lying and situate at behind ministry of works represented on survey plan number EEA/CS/CR/1642/2004 dated 15/2/2004 by the defendants, surveying and leasing same amounts to trespass.
2. Perpetual injunction restraining the defendants, their agents, servants and or privies from further trespassing into the claimants? land lying and situate behind ministry of works Ogoja, up to Aya River and boundary by Ugaga Village in Yala local Government Area.
3. Twenty Million Naira (N20,000,000.00) for trespass.
4. N20,000,000.00 (Twenty Million for special damages).

In reaction, the appellants joined issue with the respondents and denied liability. They claimed ownership of the disputed land as an inheritance from their forebears and justified their entry into it. Consequently, they counter-claimed against the respondents and prayed for the following reliefs:
34. A DECLARATION that the Defendants/Counterclaimants are the owners of the piece and parcel of land situate at behind Ministry of Works by Forestry up to Aya

River in Ogoja Local Government Area which said land is bounded by the Yala Local Government Area.
35. The sum of N50,000,000.00 being general damages for trespass and laying inordinate claim haven (sic) trespassed into the Defendants/Counterclaimants? land.
36. AN ORDER of perpetual injunction restraining the Claimants either by themselves, servants, agents and or assigns from further trespass into the land described in relief (1) above, either with a view of laying inordinate claim or do anything whatsoever in violation of Defendants? right to exclusive possession.

Following the denials and rival claims, the lower Court had a full-scale determination of the case. In proof of the case, the respondents fielded two witnesses. In disproof of the case, the appellants called three witnesses. Tons of documentary evidence were tendered by the parties. At the closure of evidence, the parties, through counsel, addressed the lower Court. In a considered judgment, delivered on 15th October, 2014, found at pages 899-933 of the record, the lower Court dismissed the respondents? claim and the appellants? counter-claim.

The appellants were dissatisfied with the decision. Hence, on 30th December, 2014, they lodged a 4-ground notice of appeal which is copied at pages 934-938 of the record. Subsequently, with the leave of this Court, the appellants filed an amended notice of appeal on 22nd March, 2017 and deemed properly filed on 10th April, 2018, hosting eight grounds, wherein they prayed the Court as follows:
A. An order allowing the appeal, affirming decision of the trial Court which dismissed the respondents? claim and setting aside; that part of the judgment of the trial Court which dismissed the Appellants? counter claim.
B. An order allowing the counter claim and awarding all the reliefs claimed by the counter claimants/appellants.

Thereafter, the parties filed and exchanged their respective briefs of arguments in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 7th February, 2019.

During its hearing, learned counsel for the appellants, D. O. Kulo, Esq., adopted the appellants? brief of argument, filed on 16th April, 2018, as representing his arguments for the appeal. He urged the Court

to allow it. Similarly, learned counsel for the respondents, Mba O. Mba, Esq., adopted the respondents? brief of argument, filed on 22nd November, 2018 and deemed properly filed on 7th February, 2019, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellants? brief of argument, learned counsel distilled five issues for determination to wit:
A.Whether that part of the judgment of the trial Court which dismissed the appellants? counter claim is perverse.
B. Whether a Court of law can pick and choose between two contradictory pieces of evidence.
C. Whether the dismissal of the appellants? counter claim is proper in law – having regards to the weight of the evidence on records.
D. Whether the failure to deliver the judgment within the statutory period allowed by Section 194 of the 1999 Constitution occasioned a miscarriage of justice.
E. Whether the writ of summons commencing this action is void in law having regards to the provisions of Order 8 Rule 2 and 3 of the Cross River State High Court Civil Procedure Rules of 2008.

In the respondents? brief of argument, learned counsel crafted four issues for determination viz:
1. Whether the learned trial Court was right in dismissing parties’ claims in suit no. HJ/I0/2012 which is the subject of appeal here?
2. Whether the Ikaribu community from where the appellants come are distinct and separate from Ukamusha community of Ogoja, entitling them to the exclusive ownership of the Ukamusha communal land particularly, the land behind Ministry of Works, Ogoja?
3. Whether the delivery of the judgment which is the subject of this appeal outside the statutory 90 days and the use of the two affidavits of DW2 in resolving the issue of appellants’ autonomy has occasioned a miscarriage of justice to the appellants in this appeal?
4. Whether the failure of the Registrar of the High Court of Cross River State, Ogoja judicial Division to seal the Writ and the purported non signing of the Writ vitiates the Writ of Summons commencing the action at the lower Court.?

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondents? issues can be, conveniently, subsumed under the appellants. In view of

this sameness, I will decide the appeal on the issues formulated by the appellants: the undoubted owners of the appeal. I will, for reasons that will unfold anon, deal with issue five (E) first.

Arguments on issue E.
Learned counsel for the appellants submitted that the writ of summons, which commenced the respondents? case, was not sealed by the registrar of the lower Court or signed by counsel as required by Order 8 Rules 2 and 3 of the Cross River State High Court (Civil Procedure) Rules, 2008 (hereunder abridged to ?the High Court Rules.?). He posited that the non-sealing and signing of the writ of summons denied the lower Court of the jurisdiction to try the case. He asserted that the word ?shall? was used in the provision which made it mandatory. He relied on Sylvester v. Ohiakwu (2014) 5 NWLR (Pt. 1401) 467. He insisted that validity of the writ of summons was a condition-precedent to the assumption of jurisdiction by the lower Court. He cited Porbeni v. Pabod Finance & Investment Co. Ltd. (2001) FWLR (Pt. 63) 84. He concluded that proceedings conducted without jurisdiction would be a nullity. He referred

to Olabomi v. Oyewinle (2013) LPELR ? 20969. He urged the Court to strike out the writ of summons and award the reliefs claimed in counter-claim.

For the respondents, learned counsel contended that, assuming the registrar did not perform his duty of sealing the writ, the respondents could not be punished for his negligence of duty. He relied on PWTHAG v. Ceddi Corp. Ltd. (supra) (sic); BBN Ltd. v. Olayiwola & Sons (2005) 3 NWLR (Pt. 912) 1434. He reasoned that the writ of summons was signed by counsel as required by Order 8 Rule 2(3) of the High Court Rules. He referred to the writ of summons and form 1 contained in the High Court Rules. He postulated that the counsel?s name on the writ of summons was sufficient signature. He referred to the meaning of signature in Black?s Law Dictionary, 9th edition. He persisted that the writ of summons was valid.

Resolution of the issue
In due loyalty to the dictate of the law, I will attend to issue E (five) first. The reason is located in the kernel of the issue which is plain. It centres on the jurisdiction of the lower Court to hear the suit which metamorphosed into this appeal. The

law compels the Courts to handle issue of jurisdiction first when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will pay total allegiance to this legal commandment so as not to insult the law.

A Court of law is invested with jurisdiction to hear a matter when: ?1. it is properly constituted as regards numbers and qualifications of 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 fulfillment of any condition precedent to the exercise of jurisdiction?, see Madukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81;Dairo v. UBN (2007) 16 NWLR (Pt. 1059) 164; Okereke v. Yar?Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. These three ingredients must co-exist in order to vest jurisdiction in a Court.

Now, the appellants? chief grievance is that the respondents? writ of summons was not signed by a legal practitioner which impinged on the jurisdiction of the lower Court to entertain it. The appellants hinged his grouse on the

provision of Order 8 Rule 2(3) of the High Court Rules.
It is settled law, that an originating process, like writ of summons, originating summons and notice of appeal, must be signed by a legal practitioner, who franked it, or a litigant in order to infuse validity into it. The legal practitioner, in the mind of the law, is one entitled to practice as a barrister and solicitor and whose name is on the roll of legal practitioners as decreed by the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004 (hereunder abridged to ?the Act?). In other words, an originating process not signed by a legal practitioner, as ordained by the above provisions of the Act and the rules of Court, is infested with incompetence with the attendant liability of expunction. The incompetence divests the Court of the jurisdiction to adjudicate over the action, which hosts it, in deserving circumstances, see Registered Trustees, The Apostolic Church, v. Akindele (1967) NMLR (Pt. 263); Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63; SLB Consortium Ltd. v. NNPC

(2011) 9 NWLR (Pt. 1252) 317; Const. Res. (Nig.) Ltd. v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 592; Okonkwo v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 614; Bala v. Dikko (2013) 4 NWLR (Pt. 1343) 52; Braithwaite v. Skye Bank (2013) 5 NWLR (Pt. 1346) 1; FBN Plc. v. Maiwada (supra)/(2013) 5 NWLR (Pt. 1348) 444; Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570; Min., W & T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481; Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19; Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 1375) 466; Dankwambo v. Abubakar (2016) 2 NWLR (Pt. 1495) 157; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd(2016) 8 NWLR (Pt. 1514) 318; Tanimu v. Rabiu (2018) 4 NWLR (Pt. 1610) 505; B.O.I. Ltd. v. Awojugbagbe Light Ind. Ltd.(2018) 6 NWLR (Pt. 1615) 220; Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420.
I have, in due fidelity to the law, inspected the record, the bedrock of the appeal, particularly at the residence of the writ of summons, sought to be jettisoned, which colonises pages 1 and 2 of the mountainous record. It must be placed on record, pronto, that the writ of summons parented the respondents? suit.

I have given a microscopic examination to it. It was issued by E. A. Idom-Murphy, Esq of Idom-Murphy Obiem & Partners of No. 8 Calabar Street, Igoli-Ogoja. Nevertheless, I am unable to find, even with the prying eagle eye of a Court, where the respondents? counsel, E. A. Idom-Murphy Esq., who prepared it, signed it in due obedience to the provision of Order 8 Rule 2(3) of the High Court Rules which states that: ?(3) Each copy [originating process] shall be signed ?. by the Legal Practitioner or by the plaintiff or a claimant.
The draftsman of the provision of Order 8 Rule 3 of the High Court Rules employed the word ?shall? which, in this con, implies compulsion/mandatoriness, see Okonkwo v. UBA Plc. (supra); Ugwuanyi v. NICON Ins. Plc. (2013) 11 NWLR (Pt. 1366) 546; Adeosun v. Gov., Ekiti State (2012) 4 NWLR (Pt. 1291) 581; Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Co. Ltd. (2014) 7 NWLR (Pt. 1405) 165; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 407; Agbiti v. Nigeria Navy (2011) 4 NWLR (Pt. 1236) 175; Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259)

502; BPS Constr. & Engr. Co. Ltd v. F.C.D.A (2017) 10 NWLR (Pt. 1572) 1. Unarguably, the writ of summons, which is in the heat of banishment, is a classic exemplification of an originating process: a process issued at the beginning of a judicial proceeding to kick start an action. Since the writ of summons was not endorsed by a legal practitioner, who authored and issued it, it is tainted with an indelible incompetence.
In an avowed bid to arrest and amputate the caustic long arm of this hallowed principle of law, id est, that an originating process must be signed by a legal practitioner to be valid, the respondents weaved the defence that the lawyer?s name in the writ of summons is the signature. Incontestably, signature of a legal practitioner may be any contraption, see SLB Consortium Ltd. v. NNPC (supra); Alawiye v. Ogunsanya (supra); Min. IN. & T., Adamawa State v. Yakubu (supra); Nigerian Army v. Samuel (supra). Also, the name of counsel is a sufficient signature in law, see Registered Trustees, Apostolic Church v. Akindele (supra); SLB Consortium Ltd. v. NNPC (supra).
However, there is total absence of such contraption in the

portion of the writ of summons where the name of the respondents? legal practitioner is written. Again, if the name of the respondents? counsel, E. A. Idom-Murphy, is construed as his signature, then it becomes ?E. A. Idom-Murphy Esq of Idom-Murphy, Obiem & Partners? which, to all intents and purposes, qualifies as signature of a law firm which is an affront to the law. It stems from these, that the respondents? lawyer?s name, Idom-Murphy, Esq., cannot play the amphibious roles of being his name and signature concurrently. The law insists on the presence of name and signature of a legal practitioner so as to imbue validity and viability in an originating process, see SLB Consortium Ltd. v. NNPC (supra). Put simply, the writ of summons was not signed in the spirit and manner decreed by the law. Indubitably, lack of endorsement of a writ of summons by a lawyer is ?a fundamental irregularity that goes to the roots?, see Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd (supra) at 434, per Eko, JSC. These, with due reverence, puncture the defence, invented by the respondents, to castrate the issue. It is lame and cannot fly.

I have, in due consultation with the law, demolished the single defence erected by the respondent. It will smell of judicial sacrilege to crown the respondents? unsigned writ of summons with the toga of validity. Contrariwise, I declare it as smeared with incompetence and invalidity.
?It cannot be gainsaid that a writ of summons, an originating process, is the spinal cord of a suit. It is the foundation upon which all other processes and proceedings are anchored on in a matter. In other words, all other processes and proceedings owe their origin and validity to an originating process. It follows, that the writ of summons, which is under the attack of ostracisation, gave birth to all the other processes filed by the feuding parties and the proceedings in the action which transfigured into the appeal. Given this parental relationship, the incompetence of the writ of summons pollutes the purity of the other processes and proceedings and, ipso facto, render them orphans and incompetent. The reason is obvious. They have no substratum to perch and command any validity. It is a notorious principle of law that no one puts something on

nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592; B.O.I. Ltd. v. Awojugbagbe Light Ind. Ltd. (2018) 6 NWLR (Pt. 1615) 220. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513.
The legal consequences, which follow the incompetent writ of summons, are far-reaching. The respondents? suit was not initiated by due process of law and the condition precedent, for its institution, was not satisfied as required by law. In the view of the law, a condition precedent is: ?the one that delays the vesting of a right until the happening of an event?, seeAtolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jombo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt.1536) 439. The result is that the lower

Court was drained of the requisite jurisdiction to entertain the action ab initio. It, therefore, with utmost respect, defiled the law when it heard the matter. Where a Court is not clothed with the jurisdiction to entertain a matter, the proceedings germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable nest of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra).
In the eyes of the law, nullity denotes: ?Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect?, seeLasisi v. State (2013) 12 NWLR (Pt.1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. The dire consequence of a nullity is dismissal. If a decision or proceeding is plagued by nullity, it is void and taken as if it was never given or made, see Okoye v. Nigeria Const. &

Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342.
Furthermore, such a decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party, who possesses it, nor does it impose any obligations on its victim party, see Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The bounden duty of a Court is to set aside a null order ex debito justitiae in that it does not exist in law, see Mamman v. Hajo (supra); N. A. C. B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364. Since the lower Court?s decision is offensive to the law, it must be mowed down by the unbiased judicial sword of this Court. In the end, I have no choice than to resolve the issue five (E) in favour of the appellants and against the respondents.
For the sake of clarity, the nullity which infested all the subsequent proceedings to the null writ of summons punctures the appellants? solicitation to this Court to grant their reliefs in the counter-claim. Although, a counter-claim is

an independent action, the proceedings of the main claim and the counter-claim, in the case in hand, are intertwined and inseparable. Having regard to the appellants? attack on the jurisdiction of the lower Court, I liken them, vis a vis their counter-claim, to ?a man who, while praying fervently for long life, yet carries in his pocket, a time bomb which, on explosion, would end his life?, see Yoye v. Olubode (1974) NSCC (vol.9) 409 at 414, per Ibekwe, JSC. Where will this Court fetch the jurisdiction, without injuring the law, to accede to their request? No place. This constitutes coup de grace in the appellants? supplication. It is not grantable in law.
For the avoidance of doubt, the outcome of issue E (five), which is a product of invalidity of an unsigned writ of summons, renders the need to deal with the other issues otiose, seeOkpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282. Where the jurisdiction of a Court to hear a matter is eroded, the order it makes is plain. It is one of striking it out, see Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (Pt. 927) 366;

Uwazuruike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt. 1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1059) 347; Ikechukwu v. FRN (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt.1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Min., W.O.T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481. That will be the fate of the respondents? suit, which journeyed with the measured speed of Court processes, to this Court.

Before the last verdict, let me observe, by way of obiter, that this case, like all other such cases touching on this stubborn and recurring issue, craves for the meticulosity of lawyers in the management and control of matters from cradle to berth in the temple of justice. A lawyer ought not to treat any matter, or any aspect of it, with levity. The subsequent aftermath of such lackadaisical approach may be dismal and catastrophic. A laissez-faire attitude, in handling briefs, has the potential to reverse the fate of a good case to a misfortune. At once, it diminishes the gargantuan confidence the litigants usually repose in lawyers even as

they (litigants) bear the unexpected and unfriendly brunt. It must be discouraged!
?On the whole, having resolved the foremost issue E (five) in favour of the appellants, the destiny of the appeal is plain. It is imbued with merit. The appeal is allowed only on ground of want of jurisdiction of the lower Court to hear the suit. Consequently, Suit No. HJ/10/2012, filed by the respondents, is struck out for being incompetent. The parties shall bear the respective costs they expended in the prosecution and defence of the fruitful appeal.

MOJEED ADEKUNLE OWOADE, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother Obande Festus Ogbuinya, JCA. I agree with the reasoning and conclusion in particular that the trial Court had no jurisdiction for the reason that the Respondents writ of summons was not signed by a legal practitioner. I also allow the appeal for the above reason. I abide with the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the succinct judgment of my learned brother, Obande F. Ogbuinya, JCA and I agree

entirely with his reasoning and conclusion arrived thereat. The apex Court of the land had in plethora of cases decided that once it cannot be said who signed a process, it is incurably bad and the rules of Court that seems to provide a remedy are of no use as the rules of Court cannot override the law. Thus, the legal consequence of the incompetent Writ of Summons robs the Court of its requisite jurisdiction to hear and determine the suit ab intio.

Appearances:

D. O. Kulo, Esq.For Appellant(s)

Mba O. Mba, Esq. with him, U. F. Inah, Esq.For Respondent(s)

Appearances

D. O. Kulo, Esq.For Appellant

AND

Mba O. Mba, Esq. with him, U. F. Inah, Esq.For Respondent