MR. I. AREMU v. WADUD AYINDE SHINABA & ORS
(2014)LCN/6770(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of January, 2014
CA/L/1175M/2010
RATIO
WHETHER A COURT PROCESS MAY BE SIGNED BY AN UNDISCLOSED PERSON ON BEHALF OF A KNOWN PERSON
In respect of legal practitioners, the case of The Nigerian Army v. Sgt. Asanu Samuel and Ors. (2013) 14 NWLR (Pt. 1375) 466 at 485 restates in the words of Rhodes-Vivour, J.S.C. following the earlier case of SLB Consortium v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317 at 337-338 that the originating process must convey first, the signature of counsel, which may be any contraption; second, the name of counsel clearly written as indition of authorship of the signature; third, the name of the person(s) counsel represents; and fourth, the name and address of the legal firm under which counsel practices as a legal practitioner or solicitor/advocate of the supreme court of Nigeria. All the three requirements stipulated above must be present before the court process so signed would be authentic and beyond reproach. See also Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570 at 518, where Rhodes-Vivour, J.S.C., re-emphasised what his lordship had earlier stated in SLB Consortium v. N.N.P.C. (supra) that –
“Once it cannot be said who signed the process, it is incurably bad, and rules of court that seem to provide a remedy are of no use as a rule of court cannot override the Legal Practitioner Act. There must be strict compliance with the law”.
See also F.B.N. Plc. v. Maiwada (2013) 5 NWLR (Pt. 1348) 444; Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt. 1346) page 11 at 16 – 22.
In respect of a claimant, the signature and name together with the description of the claimant as the claimant in the action must be on the originating process to cloth it with validity.
It is wrong for an unknown/unidentified or undisclosed person to sign the process for or on behalf of a known person, be it a legal practitioner or a claimant.
See Adeneye and Anor. v. Yaro (2013) 3 NWLR (Pt. 1342) 625 at 633-634, where this Court held inter alia that –
“In a more recent case, Onward Enterprises Ltd. v. Olam International Ltd and Ors appeal No. CA/L/365/08 my learned brother, Mukhtar, J.C.A. expressed similar views on page 9 of the said lead ruling delivered on the 24th June 2010 as follows:-
“Name of signatory is therefore necessary to fulfill the requirement of valid and legally recognizable signature…
The person signing is required to write his name in longhand and in a legible and readable manner in order to satisfy the requirement of signature, which mere scribbling falls shorts of ….. any attempt to detect the unnamed signatory will amount to converting the court into a forensic laboratory”. Per JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
MR. I. AREMU
(For himself and on behalf of the Family of Alhaji Abdullahi Aremu) Appellant(s)
AND
1. WADUD AYINDE SHINABA
2. TAJUDEEN ADEDEJI SHINABA
3. RUFAI KAYODE GIWA & ORS
(For themselves and on behalf of Imam Lawani Shinaba Family) Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering Leading Judgment): The suit, the subject matter of this appeal was instituted by Writ of Summons dated 13th August 2007 – pages 1-27 of the Record of Appeal.
In paragraph 26 of the Statement of Claim, the Claimants claim against the Defendant as follows:
(1) A declaration that the Claimant are the beneficial owner and therefore entitled to the grant of statutory right of occupancy on the entire property situate at No. 24 Faji Street, Lagos which is particularly described in Survey Plan No. LAT/427/LA/89 dated 20/10/89 drawn by Lat. Survey Consultant, Licenced and Registered Surveyor with Beacon Nos. DAC6154, DAC6155, DAC6166, DAC6157, DAC6158, DAC6159, DAC6159, DAC6160, DAC6161 and thereon edged red.
(2) A declaration that the redevelopment of the portion occupied by the Defendant into 3 storey building without proper building agreement with the Claimants amounts to a trespass and therefore wrongful, unlawful and illegal.
(3) Forfeiture of the Defendant’s right of possession at No. 24, Faji Street, Lagos and an order granting the Claimants the possession thereof.
(4) N500,000.00. Exemplary damage.
(5) Cost of this action – (Page 6 of the Record of Appeal).
The suit was struck out for lack of diligent prosecution by the Court on the 7th day July, 2009, but same was relisted on the 12th of November, 2009 – (Page 102 of the Record of Appeal). The matter was adjourned to the 14th and 15th of December, 2009. Trial commenced. At the end of the trial, the claims, as set out on page 2 of the Record of Appeal were granted. Judgment was entered for the Respondents.
BRIEF FACTS
The Claimants (Respondents) claimed in essence that they are the beneficial owners and therefore entitled to the grant of statutory right of occupancy on the entire property situate at No. 24 Faji Street, Lagos, as well as forfeiture of the Defendant’s interest on the said property.
The Claimants listed 2 witnesses, WADUD AYINDE SHINABA and RUFAI KAYODE GIWA (page 7 of the Record of Appeal). They filed a Statement of Claim also dated 13th August 2007.
The Defendant filed a Statement of Defence on the 5th of October, 2007 (pages 29-32 of the Record of Appeal). He fielded just one witness – ALHAJI MUNIRU AREMU – (Page 44 of the Record of Appeal).
The Appellant is dissatisfied with the Judgment delivered on the 10th of June 2010 and has appealed same.
Pursuant to the Practice Direction of this Honourable Court, the Appellant filed an original Notice of Appeal which was amended vide Amended Notice of Appeal filed on the 1st of June 2011 with eleven (11) Grounds of Appeal.
Ground No. 2 is the omnibus Ground and should have been the last Ground of Appeal as it states
“THE JUDGMENT OF THE LEARNED TRIAL JUDGE IS AGAINST THE WEIGHT OF EVIDENCE”
Ground No 3 has this to say
“THE LEARNED TRIAL JUDGE MISDIRECTED HIMSELF IN LAW AND IN FACT WHEN HE HELD AS FOLLOWS:-
“THE CLAIMANTS HAVE CLEARLY ESTABLISHED THAT THE PROPERTY BELONGED TO THE SHINABA FAMILY AND THE EVIDENCE OF THE SOLE WITNESS FOR THE DEFENDANT BUTTRESSED THIS POINT. I THEREFORE FIND THAT THE ORIGINAL OWNER OF THE PROPERTY IN DISPUTE IS THE SHINABA FAMILY AND IT IS FAMILY PROPERTY AND THERE IS NO EVIDENCE OF PARTITION OR SEVERANCE OF THE AND”
But that Ground was buttressed with particulars of error. This is grossly irregular, as you cannot have particulars of error in support of misdirection of law and of facts.
I had often times reiterated the fact that vague and imprecise Grounds of Appeal offend the Provision of Order 6 of the Court of Appeal Rules 2011.
A Ground of Appeal that complains about error of law must state particulars of error and not particulars of misdirection.
Ground three, being vague is hereby struck out.
Ground No. 9 has this to say
THE LEARNED TRIAL JUDGE MISDIRECTED HIMSELF ON THE FACTS WHEN SHE HELD AS FOLLOWS:-
“THIRDLY, THE DEFENDANTS BEING TENANTS TO THE CLAIMANTS CHALLENGED THE TITLE OF THEIR LANDLORD OVERLORD AND ARE THEREFORE ENTITLED TO FORFEITURE OF THEIR TENANCY. I THEREFORE HOLD THAT THE DEFENDANTS ARE LIABLE TO FORFEITURE OF THE PORTION OCCUPIED BY THEM”
The Appellant proceeded to state particulars of error. This clearly is a contradiction in terms. You cannot support a Ground of Appeal which states misdirection with particulars of error.
This Ground is incompetent and same is hereby struck out.
Having struck out Grounds 2, being an omnibus Ground, Grounds 3 and 9, I am left with Grounds 1, 4, 5, 6, 7, 9, 10 and 11 and I shall decide this Appeal based on these Grounds.
The Appellant filed his Brief of Argument on the 11th of September, 2012, but same was deemed filed on the 17th of September 2012.
He proffered four (4) issues for determination. They are
(1) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN LAW TO HAVE ASSUMED JURISDICTION ON THE SUIT BEFORE IT WHEN THE WRIT OF SUMMON, STATEMENT OF CLAIM AND REPLY TO STATEMENT OF DEFENCE FILED BY THE RESPONDENTS WERE SIGNED BY A PERSON UNKNOWN TO THE LEGAL PRACTITIONER ACT?
(2) WHETHER OR NOT THE ACTION FILED BEFORE THE LEARNED TRIAL JUDGE IS STATUTE BARRED BY WAY OF LACHES AND ACQUIESCES IN RESPECT OF UNDISTURBED POSSESSION FOR ABOUT 38 YEARS.
(3) HAVING REGARDS TO THE ORAL TESTIMONIES OF WITNESSES AND THE DOCUMENTS TENDERED, WHETHER THE TRIAL JUDGE WAS RIGHT TO HAVE GRANTED THE DECLARATORY RELIEFS PRAYED FOR BY THE CLAIMANTS OR NOT?
(4) IS THIS A CASE IN WHICH THE DEFENDANT (APPELLANT) COULD BE LIABLE TO FORFEITURE OF HIS INTEREST IN THE PORTION HE OCCUPIES AT NO. 24 FAJI STREET, LAGOS?
The Appellant adopted his Brief of Argument on the 27th of November, 2013.
The Respondent filed a RESPONDENTS’ NOTICE TO VARY the decision of the lower court pursuant to order 9 Rules 1 and 6 of the court of Appeal Rules 2011, seeking that the claim as presented by the claimants (the Respondents herein) be struck out. Thus, the Respondents filed no Brief of Argument. He is in support of Issue No. 1 raised by the Appellant, as that is enough to dispose of the Appeal. The Grounds upon which the Respondents intend to rely for such variation are as follows:
1. The Respondents concede to Ground one of the Amended Notice of Appeal dated 31st day of May 2011 and canvassed as issue 1 in the Appellant’s Brief dated 11th September, 2012 and filed on same day before this Honourable Court.
2. Had the lower court adverted timeously to the apparent defect in the originating process dated 13th day of August, 2007, filed by the office of the Public Defender on behalf of the Respondents herein, it would have struck out the claim without proceeding to trial due to the incompetence inherent on the face of the Originating process and in consonance with judicial pronouncements of superior courts.
3. A resolution of that singular issue is enough to determine this appeal.
ISSUE No. 1
The Issue of jurisdiction comes into focus here, as the question is whether the learned trial Judge was right in law to have assumed jurisdiction on the suit before it when the Writ of Summons, Statement of Claim and Reply to the Statement of Defence filed by the Respondents were signed by a person unknown.
The Appellant refers this Court to the originating processes, that is, the Writ of Summons, Statement of Claim and Reply to the Statement of Defence filed by the Respondents which originated this action. That on these documents, it is apparent that someone signed these processes for and on behalf of Bisi Akinlade (Mrs.), a counsel in the office of the Public Defender of Lagos State Ministry of Justice. He submits that the person who signed for the aforementioned counsel did not state his/her names as to be able to ascertain and confirm with clinical diligence that he or she has his name on the Roll of Solicitors and Barristers of the Supreme Court of Nigeria.
Referring to the Provisions of Order 6 Rule 2(3) of the High Court of Lagos State (Civil Procedure) Rules 2004, which states that
(3) “Each copy shall be signed by the Legal practitioner or by a Claimant where he sues in person and shall certify after verification by the Registrar as being a true copy of the original process filed”
He argues that the Writ of Summons, Statement of Claim and the Reply to the Statement of Defence on pages 2, 6 and 53 of the Record of Proceedings were not signed by any of the Respondents. The question also arises whether the said originating processes can be said to have been signed by a legal practitioner representing the Respondents.
Referring to Section 24 of the Legal Practitioner Act Cap L11 2004 which defines a Legal Practitioner as
“A person entitled in accordance with the Provision of this act to practice as a Barrister and Solicitor, either generally or for the purpose of any particular office or proceedings”
Section 2(1) of the same Act provides
“subject to the provision of the act a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the roll”
He cites OKAFOR v. NWEKE (2007) 10, NWLR (Part 1043) 521; OGUNDELE & ANOR v. AGIRI (2009) 12 S.C (Pt. 1) 13; OKETADE v. ADEWUMI & ORS (2010) 2-3 SC. (Pt. 1) and NNB PLC v. DENCLANG LTD (2003) 4 NWLR (Pt. 916) 549 @ 573.
He submits that in the instant case, the Writ of Summons dated 13th August 2007, Statement of Claim dated 9th of August 2007 and Reply to Statement of Defence dated 26th October 2007 were signed by an unnamed person for and on behalf of Bisi Akinlade (Mrs.).
He argues that, as the name of the signatory to the aforementioned originating process filed at the lower Court, on behalf of the Respondents have not been disclosed, it cannot be ascertained whether the signatory is a legal practitioner or not, more so as the roll of practitioner contain names and or signatories.
He submits that the originating processes i.e. the Writ of Summons, Statement of Claim and the Reply to Statement of Defence, signed by an UNNAMED PERSON “for Mrs. Bisi Akinlade” makes the suit at the lower Court grossly incompetent and robs it of jurisdiction.
I shall consider this issue first, as it goes to jurisdiction. If it is viable, then it disposes of the Appeal without much ado.
A cursory look at the writ of summons (at its page 2) in the Record of Appeal shows that someone signed for BISI AKINLADE (MRS). The signature is of an unknown person. The same applies to the statement of claim – page 6 of the Record of Appeal.
The Reply to Statement of Defence filed on the 25th of October, 2007 is also signed by an unknown person for Mrs. Bisi Akinlade – (page 53 of the Record of Appeal). Indeed other processes were signed for Bisi Akinlade (Mrs.), for example the list of witnesses of the Claimants (page 7 of the Record of Appeal), the list of documents of the Claimants (page 14 of the Record of Appeal), the Pretrial Information Sheet i.e. Form 18 (page 78 of the Record of Appeal).
Indeed, nearly the entire process of the Respondents is prevalent with unknown names signing for Mrs. Bisi Akinlade.
This, decidedly makes the entire action baseless and of none effect. This lacuna divests the court of its revered jurisdiction.
Authorities earlier cited by learned counsel for the Appellant are trite and subsist.
Any breach of the principles relating to signature is fundamental and it knocks the bottom off any suit, no matter how well couched, and to any proceedings, no matter how well conducted.
I am tempted to allow this appeal on this threshold. And this is exactly what I shall do, because to consider the other issues would amount to nothing, but an academic exercise.
Issue No 1, is answered in the negative and same is resolved in favour of the Appellant. You cannot put something on nothing. It would collapse.
This knocks the bottom off the entire suit in the lower Court and makes this appeal meritorious. The Respondents notice succeeds.
Accordingly the Appeal is allowed and the decision of Hon. Justice B. A. Oke-Lawal delivered on the 10th of June 2010 is without foundation and same is hereby set aside.
N30,000 costs in favour of the Appellant.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: The originating process – the application for writ of summons and the statement of claim – together with the reply to the statement of defence were signed by an unidentified/unknown person for a Mrs. Bisi Akinlade. The originating process, the life-wire of the action, was on that account incurably defective, as it was neither signed by the respondents as claimants or by their legal practitioner. See sections 2(1) and 24 of the Legal practitioners Act Cap. L11 Laws of the Federation, 2004 and order 6 rule 2(3) of the High Court of Lagos State (Civil Procedure) Rules, 2004, the latter which provides –
“Each copy (of originating process) shall be signed by the Legal Practitioner or by a claimant where he sues in person and shall certify after verification by the Registrar as being a true copy of the originating process filed”.
In respect of legal practitioners, the case of The Nigerian Army v. Sgt. Asanu Samuel and Ors. (2013) 14 NWLR (Pt. 1375) 466 at 485 restates in the words of Rhodes-Vivour, J.S.C. following the earlier case of SLB Consortium v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317 at 337-338 that the originating process must convey first, the signature of counsel, which may be any contraption; second, the name of counsel clearly written as indication of authorship of the signature; third, the name of the person(s) counsel represents; and fourth, the name and address of the legal firm under which counsel practices as a legal practitioner or solicitor/advocate of the supreme court of Nigeria. All the three requirements stipulated above must be present before the court process so signed would be authentic and beyond reproach. See also Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570 at 518, where Rhodes-Vivour, J.S.C., re-emphasised what his lordship had earlier stated in SLB Consortium v. N.N.P.C. (supra) that –
“Once it cannot be said who signed the process, it is incurably bad, and rules of court that seem to provide a remedy are of no use as a rule of court cannot override the Legal Practitioner Act. There must be strict compliance with the law”.
See also F.B.N. Plc. v. Maiwada (2013) 5 NWLR (Pt. 1348) 444; Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt. 1346) page 11 at 16 – 22.
In respect of a claimant, the signature and name together with the description of the claimant as the claimant in the action must be on the originating process to cloth it with validity.
It is wrong for an unknown/unidentified or undisclosed person to sign the process for or on behalf of a known person, be it a legal practitioner or a claimant.
See Adeneye and Anor. v. Yaro (2013) 3 NWLR (Pt. 1342) 625 at 633-634, where this Court held inter alia that –
“In a more recent case, Onward Enterprises Ltd. v. Olam International Ltd and Ors appeal No. CA/L/365/08 my learned brother, Mukhtar, J.C.A. expressed similar views on page 9 of the said lead ruling delivered on the 24th June 2010 as follows:-
“Name of signatory is therefore necessary to fulfill the requirement of valid and legally recognizable signature…
The person signing is required to write his name in longhand and in a legible and readable manner in order to satisfy the requirement of signature, which mere scribbling falls shorts of ….. any attempt to detect the unnamed signatory will amount to converting the court into a forensic laboratory”.
It is for these reasons and for the more elaborate reasons contained in the lead judgment of my learned brother, Rita Nosakhare Pemu, J.C.A., (which I had the honour of reading in advance) that I too see merit in the appeal and hereby allow it and set aside the judgment of the court below and enter an order striking out the suit at the court below with N30,000.00 costs to the appellant against the respondents.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, RITA NOSAKHARE PEMU, J.C.A. I agree that the appeal has merit and should be allowed. In Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 the Supreme Court per Onnoghen, JSC observed:
“Legal practitioners have formed the habit of signing court processes in their partnership or firm’s name without indicating the name of the practitioner signing the process. Such documents are incompetent and are liable to be struck out.”
The Respondent realizing that the error in the signing of the processes was confounding, filed a Respondent’s notice contending that the decision of the court below be varied by having the claim struck out. That certainly brought closure to the appeal. I abide by the order as to costs.
Appearances
D. A. Awosika, Esq.
R. E. Machael Esq.For Appellant
AND
For Respondent
