MR. IBE VITALIS CHUKWUJINDU v. ASSET MANAGEMENT CORPORATION OF NIGERIA
(2019)LCN/13116(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of April, 2019
CA/L/346/2018
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
MR. IBE VITALIS CHUKWUJINDU – Appellant(s)
AND
ASSET MANAGEMANT CORPORATION OF NIGERIA – Respondent(s)
RATIO
WHETHER OR NOT PRELIMINARY OBJECTIONS AS TO JURISDICTION SHOULD BE TAKEN FIRST BEFORE THE SUBSTANTIVE SUIT
In APC V NDUUL & ORS (2017) LPELR 42415 (SC) the Apex Court held thus:
“What is in issue in this preliminary objection is that of jurisdiction which can be raised at any stage of the proceedings even on appeal up to the Supreme Court and in that regard it is not mandatory that leave of Court be obtained before the issue of jurisdiction can be raised…..In the case of State v Onagoruwa (1992) 2 SCNJ (Pt.1) 1 at 308 Belgore, JSC (as he then was) stated: “The red light to Court to be cautious is the jurisdiction and it must be settled by proper hearing of parties before further proceedings in a matter can be embarked upon. Similarly there are occasions after a matter has been before the Court for long before the issue of jurisdiction arises some in the middle of the entire proceedings or towards its tail end in that case the jurisdiction must first be settled before proceedings further …. It is therefore never too late to raise the issue of jurisdiction and in the case of this nature it is never premature to raise it…. The preliminary objections as to jurisdiction ought to have been taken first and decided upon.” See also Olufeagba v Abdur-Raheem (2009) 40 NSCQR 634 at 724 per Mukhtar JSC (as he then was). On whether a party can waive the issue of a lack of jurisdiction, this Court in Mobil Producing Nig. Unlimited v. Monokpo(2003) 18 NWLR (Pt.852) 346 at 436 – 435. Tobi JSC said; “The law is elementary that a party cannot or has not the competence to waive lack of jurisdiction of the Court. Where a Court lacks jurisdiction, the entire proceedings however well conducted are a nullity and a party cannot in law resuscitate or revive a nullity by waiver. Jurisdiction is basic to the entire adjudication. It affects the power of the Court to adjudicate on the matter. Where a Court lacks jurisdiction, no amount of indolent conduct on the part of any of the parties, particularly the defendant, can ripen into the defence of waiver. It is my view that the jurisdiction of a Court, where there is none, cannot be enlarged either by estoppel or waiver. Jurisdiction, being the forerunner of the judicial process, cannot, by acquiescence, collusion, compromise, or as in this case, waiver, confer jurisdiction on a Court that lacks it. Parties do not have the legal right to denote jurisdiction on a Court that lacks it. “Considering the paramount nature of jurisdiction or competence of an appeal and as a follow up of the vires of Court thereby, the issue of jurisdiction is taken as such that leave is not needed to raise it. Also because of its fundamental position it can be brought up at any level of the proceedings even for the first time on appeal, whether at the Court of Appeal or Supreme Court. It would therefore be self defeating, if there must be leave of Court before it can be raised or that when the leave has not been obtained previously to raise it, the proceedings are vitiated. That cannot be part of our adjudicatory system. See FRN v. Ifegwu (2003) 15 NWLR (Pt.842) 113 at 212. I shall make further references to some dicta of this Court for emphasis. Bello, CJN in Utih v Onoyivwe (1991) 1 SCNJ 25 at 49 aptly captured its fundamental nature in adjudication. He viewed it in an organic form thus; “Moreover, jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction; the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.” Okoro v Egbuoh (2006) 15 NWLR (Pt.1001) 1 at 23 – 24 per Tobi JSC stated thus: ”Although jurisdiction is a word of large purport and significance in the judicial process, it is not a subject of speculation or gossip….It is a matter of strict and hard law donated by Constitution and Statutes. It is a threshold issue, the blood that gives life to the survival of the action and occupying such an important place in the judicial process…” PER OBASEKI- ADEJUMO, J.C.A.
WHETHER OR NOT A LEGAL PRACTITIONER MUST SIGN THE WRIT OF SUMMONS
In addition, the Legal Practitioners Act also provides in Sections 2(1) & 24 that a writ of summons should be signed by a legal practitioner. This is a mandatory requirement of the law and the failure to adhere results in the writ being termed defective, null and void ab initio and incapable of invoking the jurisdiction of the Court. See BRAITHWAITE V SKYE BANK PLC (2013) 5 NWLR (PT 136) PG 1; OKARIKA V SAMUEL (2013) 7 NWLR (PT 1352) PG 19AT 37; EWUKOYA V BUARI (2016) LPELR 40492 (CA); TANIMU V RABIU (2018) 4 NWLR (PT 1619) PG 505; HERITAGE BANK LTD V BENTWORTH FINANCE (NIG) LTD, DELIVERED BY APEX COURT ON 23RD FEBRUARY, 2018; FIRST BANK OF NIG PLC V MAIWADA (2013) 5 NWLR PT 1348 PG 44. PER OBASEKI- ADEJUMO, J.C.A.
GUIDELINES FOR WHEN A COURT IS ROBBED OF JURISDICTION
Without wasting time, MADUKOLU V NKEMDILIM (supra) sets guidelines for when a Court is robbed of jurisdiction, one of which is when an action is commenced by faulty process; it deprives the Court of jurisdiction. The holding of the Supreme Court in OKARIKA V SAMUEL is very apt thus:
“The authority of the case of MADUKOLU V. NKEMDILIM under reference (SUPRA), is very well positioned on the jurisdiction of a Court to adjudicate on a matter before it. The threefold condition which must be fulfilled are hereunder listed as apparent. In other words, the jurisdiction of a Court can only be exercised 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; (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 the due process of law and upon the fulfilment of any condition precedent to the exercise of jurisdiction.”
It is trite that the writ of summons is a mode of commencing an action therefore it is a fundamental issue and goes to the root of jurisdiction failure to comply with provision of Section 2 (1) and 24 of the Legal Practitioner Act, therefore if a writ is unsigned it is in the same category of a writ signed in the name of the law firm. See OKARIKA & ORS V SAMUEL & ANOR (supra):
“The nature of a Notice of Appeal being an originating process is well settled and should not be a matter of controversy. Being an initiating process therefore it must be certified as competent in order to give it legality and recognition.” PER OBASEKI- ADEJUMO, J.C.A.
ABIMBOLA OSARUGUE OBASEKI- ADEJUMO, J.C.A.(Delivering the Leading Judgment): This is an appeal flowing from the ruling of the Federal High Court; Lagos delivered on 19th February, 2018 per BUBA, J wherein the learned trial judge dismissed the Appellant’s application challenging the competence of the Respondent’s unsigned writ of summons. Dissatisfied with the ruling, the Appellant filed a Notice of Appeal on 22/2/18 and consequent to the rules of this Court, parties filed and exchange briefs. The Appellant’s brief of argument was filed on 29/3/18 and reply brief was filed on 8/10/18 but deemed 18/10/18. The Appellant distilled four issues for determination wit:
1. Whether the Learned Trial Judge was right to hold that the Respondent’s unsigned writ of summons dated and filed on 11th September, 2015, legally and lawfully invoked the jurisdiction of the Court and thereby vested the Court with the jurisdiction and competence to entertain the suit.
2. Whether the order of the Learned Trial Judge dated 7th October, 2016 by which the learned Trial Judge ordered an amendment of the Respondent’s unsigned
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writ of summons was made without jurisdiction and therefore is a nullity in law and consequently not binding on the Court and the parties.
3. Whether the Learned Trial Judge was right when rather than administer justice in the case in accordance with the law, he opted to administer justice in accordance with common sense and logic.
4. Whether the Learned Trial Judge was right to refuse to follow and apply the binding decisions of the Supreme Court of Nigeria in (1) BRAITHWAITE V. SKYE BANK PLC (2013) 5 NWLR PART 1346 PAGE 1; (2) FIRST BANK OF NIGERIA PLC V. MAIWADA (2013) 5 NWLR PART 1348 PAGE 444 and (3) OKARIKA V. SAMUEL (2013) 7 NWLR PART 1352 PAGE 19.
While the Respondent’s brief was filed 3/7/18 but deemed 18/10/18, wherein he raised a preliminary objection and proffered arguments thereon. A sole issue was distilled for determination thus:
Whether or not the lower Court was right to hold the Respondent’s writ of summons, statement of claim and all other frontloaded documents legally and lawfully invoked the jurisdiction of the Court and thereby vested the Court with the jurisdiction and competence to entertain the suit.
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The first step in this appeal is to resolve the preliminary issue raised by the Respondent.
PRELIMINARY OBJECTION
The preliminary objection was filed on 13/6/18 and it is brought based upon the following grounds:
i). The writ of summons dated 11/9/2015 at pages 1-3 of the records was duly signed by a legal practitioner.
ii). Grounds 3 & 4 are incompetent because the Appellant has not filed an appeal against the ruling of the lower Court made on the 7th October 2016 and therefore cannot formulate a ground nor distill an issue in respect of the said ruling of 7th October 2016.
iii). All the arguments canvass by the Appellant in para 4.22 to 4.28 in respect of issue No 2 which were distilled from Grounds 3 & 4 go to no issue, incompetent and liable to be struck out.
iv). The Appellant has not challenged the findings of the lower Court to the effect that the Appellant counsel who was present in Court on the 7th October 2016 did not object to the decision of the lower Court allowing the Respondent counsel to amend its writ of summons by appending his signature therein.
v). The ruling of the lower Court on 7th October 2016 remains
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binding on both parties having not been appealed against.
In arguing the objection which he adopted during hearing of the appeal, Respondent contended that his objection is in respect of grounds 3 & 4 of the Notice of Appeal, that the grounds are in respect of the ruling of 7th October, 2016 which is not the basis of this appeal but the Court’s ruling of 19th February, 2018, he referred to the Notice of Appeal filed at page 238 – 248 of the record.
He submitted that the ground must emanate from the ruling/judgment complained of. He cited MERCANTILE BANK OF NIGERIA PLC & ANOR V NWOBODO (2005) LPELR 1860 (SC); IKWEKI & ORS V EBELE & ANOR (2005) LPELR 1490 (SC).
Respondent noted that there has not been any appeal against the ruling of 7/10/2016 in any way and the Appellant cannot complain of same herein and the grounds are incompetent. He relied on SPDC NIG LTD V AZUKAEME (2010) LPELR 4955 (CA).
He contended that having consented to the order of 7th October, 2016, the Appellant cannot renege on it and even if he wants to, it has to be by way of leave of Court, he referred
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to Section 241(2)(c) of the 1999 Constitution (as amended).
Respondent further contended that issue 2 covered grounds 3 & 4 and that no issue can be distilled from an incompetent ground, that it goes to no issue and should be struck out. He referred toISONGUYO V EYO & ANOR (2016) LPELR – 41206 (CA); AGBAKA V AMADI (1998) 11 NWLR (PT 572) 16; AKPAN V EFFIONG (2010) 17 NWLR (PT 1223) 421; BARRISTER ORHAR JEV & ANOR V SEKAN DZUA IYORTYOM & ORS (2014) NWLR (PT 1428) 575 at 608; IROAGANACHI V MADUBUKO & ANOR (2016) LPELR 40046 (CA).
The Appellant in its reply brief submitted that the arguments are misconceived and fundamentally flawed in facts and law because the decision of 7th October, 2016 was in reality a nullity in law. He relied on OKAFOR V A.G. ANAMBRA STATE (1991) 6 NWLR (Pt 200) pg 659; OBODO V OLOMU (1987) 3 NWLR (Pt 59) Pg 111.
Appellant contended that a complaint against the ruling of 19th February, 2018 would lead into consideration of the validity or otherwise of the decision on the 7th October, 2016 and therefore grounds 3 & 4 of the Notice of Appeal is valid.
On the issue of leave not having been obtained, Appellant
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submits that the ruling of 7th October, 2016 is made without jurisdiction and jurisdictional issue can be raised at any time without leave of Court. He relied on FRN V IFEGWU (2003) 15 NWLR PT 842 PG 113 AT 226 Para F-G; ELUGBE V OMOKHAFE (2004) 18 NWLR PT 905 PG 319 AT 338 Para E-H.
In conclusion, he urged the Court to hold that grounds 3 & 4 and issue 2 is competent having challenged jurisdiction of the Court and leave of Court is not required for the appeal.
RESOLUTION
The grouse is that issue 2 of the issues for determination which is based on grounds 3 & 4 are from the ruling of 7/10/16 and no leave has been obtained for same. Grounds 3 & 4 raise jurisdictional issue, it is on the initial order of Court directing an amendment on a defective writ, which is the basis of the application to strike out the action for want of jurisdiction which was deprived as a result of a writ that was unsigned. See APGA V OYE & ORS (2018) LPELR – 45196 (SC). In APC V NDUUL & ORS (2017) LPELR 42415 (SC) the Apex Court held thus:
“What is in issue in this preliminary objection is that of jurisdiction which can be raised at any
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stage of the proceedings even on appeal up to the Supreme Court and in that regard it is not mandatory that leave of Court be obtained before the issue of jurisdiction can be raised…..In the case of State v Onagoruwa (1992) 2 SCNJ (Pt.1) 1 at 308 Belgore, JSC (as he then was) stated: “The red light to Court to be cautious is the jurisdiction and it must be settled by proper hearing of parties before further proceedings in a matter can be embarked upon. Similarly there are occasions after a matter has been before the Court for long before the issue of jurisdiction arises some in the middle of the entire proceedings or towards its tail end in that case the jurisdiction must first be settled before proceedings further …. It is therefore never too late to raise the issue of jurisdiction and in the case of this nature it is never premature to raise it…. The preliminary objections as to jurisdiction ought to have been taken first and decided upon.” See also Olufeagba v Abdur-Raheem (2009) 40 NSCQR 634 at 724 per Mukhtar JSC (as he then was). On whether a party can waive the issue of a lack of jurisdiction, this Court in Mobil Producing Nig. Unlimited v. Monokpo
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(2003) 18 NWLR (Pt.852) 346 at 436 – 435. Tobi JSC said; “The law is elementary that a party cannot or has not the competence to waive lack of jurisdiction of the Court. Where a Court lacks jurisdiction, the entire proceedings however well conducted are a nullity and a party cannot in law resuscitate or revive a nullity by waiver. Jurisdiction is basic to the entire adjudication. It affects the power of the Court to adjudicate on the matter. Where a Court lacks jurisdiction, no amount of indolent conduct on the part of any of the parties, particularly the defendant, can ripen into the defence of waiver. It is my view that the jurisdiction of a Court, where there is none, cannot be enlarged either by estoppel or waiver. Jurisdiction, being the forerunner of the judicial process, cannot, by acquiescence, collusion, compromise, or as in this case, waiver, confer jurisdiction on a Court that lacks it. Parties do not have the legal right to denote jurisdiction on a Court that lacks it. “Considering the paramount nature of jurisdiction or competence of an appeal and as a follow up of the vires of Court thereby, the issue of jurisdiction is taken as such that leave is
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not needed to raise it. Also because of its fundamental position it can be brought up at any level of the proceedings even for the first time on appeal, whether at the Court of Appeal or Supreme Court. It would therefore be self defeating, if there must be leave of Court before it can be raised or that when the leave has not been obtained previously to raise it, the proceedings are vitiated. That cannot be part of our adjudicatory system. See FRN v. Ifegwu (2003) 15 NWLR (Pt.842) 113 at 212. I shall make further references to some dicta of this Court for emphasis. Bello, CJN in Utih v Onoyivwe (1991) 1 SCNJ 25 at 49 aptly captured its fundamental nature in adjudication. He viewed it in an organic form thus; “Moreover, jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction; the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.” Okoro v Egbuoh (2006) 15 NWLR (Pt.1001) 1 at 23 – 24 per Tobi JSC stated thus: ”Although jurisdiction is a word of large purport and
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significance in the judicial process, it is not a subject of speculation or gossip….It is a matter of strict and hard law donated by Constitution and Statutes. It is a threshold issue, the blood that gives life to the survival of the action and occupying such an important place in the judicial process…”
Applying the above dictum to the case at hand it is a jurisdictional issue and can be raised at any time, and requires no leave of Court to do so. The resolution of the application to strike out an action by a new counsel certainly would involve the genesis of the process which is continuous. See OBIAKOR V STATE (2002) 10 NWLR (PT 776) at 626; ELUGBE V OMOKHAFE (supra). Therefore, grounds 3 & 4 of the Notice of Appeal shown in their particulars are hereunder reproduced:
3. The learned trial judge erred in law when he held that the failure of the Respondent and/or its legal practitioner to sign the Respondents writ of summons dated and filed on 11th September, 2015 is an error that can be cured by an amendment.
4. The learned Trial judge erred in law when he held that the Court and the parties are bound by the order of
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Court dated 7th October, 2016 by which the Court ordered an amendment of the Respondent’s unsigned writ of summons.
From the reproduced grounds it is clear that; they complain of the Court’s jurisdiction to make the said order of 7th October, 2016 and the holding of the lower Court that it is a curable defect. These are purely jurisdictional and needs no leave to be raised.
Therefore, I dismiss the objection of the Respondent. I shall proceed to the merit of the appeal.
APPELLANT’S SUBMISSIONS
The Appellant submitted that the conditions of a Court to have jurisdiction is stated in MADUKOLU V NKEMDILIM (1962) SCNLR 341: 1962 NSCC PG 374. Appellant contended that the matter was not instituted by due process of law as the writ of summons filed on 11th September, 2015 was not signed at all. He referred to Order 3 Rules 11(1) And 12 (3) of the Federal High Court Civil Procedure Rules, 2009 and that the use of shall makes it mandatory to comply with. He cited TABIK INVESTMENT LTD V GUARANTY TRUST BANK PLC (2011) 17 NWLR (PT 1276) PG 240 AT 256 PAR G-H; amongst other cases and Section 2(1) And 24 Legal Practitioners Act
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and the effect which renders the unsigned process a nullity.
On issue 2, Appellant contended that on 7th October, 2016 the Respondent sought and obtained for counsel to sign the unsigned writ of summons at page 208 and that the Court took the view that they were bound by the earlier order to sign on 7th October, 2016. Appellant queried the power of the Court to permit such, and that it was made without jurisdiction and therefore a nullity.
In the premise of the cases cited by the Appellant, he submitted that the order of 7/10/2016 was a nullity and consequently not binding on the Court and parties.
On the 3rd issue, the Appellant submitted that the lower Court opted to administer justice in accordance with common sense and logic, and the lower Court refused to follow binding decisions and that this Court should hold that the lower Court was in error.
The Appellant on issue 4 on the doctrine of stare decisis, that the lower Court was bound to follow the laid down decisions of the Apex Court on the matter especially FIRST BANK NIG PLC V MAIWADA (supra) which held that Order 51 Rule 1 of the Federal High Court Rules would take a second
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position in the scheme of things and is not the redeeming feature that can save the process wrongly signed by a legal firm or not signed at all.
Appellant reviewed other decisions which touched on the facts of this matter and submitted that the Court should apply these cases and strike out the matter.
RESPONDENT’S SUBMISSIONS
As earlier noted in this judgment, the Respondent distilled a sole issue which embraces the issues of the Appellant.
In response, the Respondent submitted that the parties are bound by the record of proceedings. He referred to the writ of summons at pages 1 – 3, that it was signed by the legal practitioner who affixed his name. He relied on NYAH V NOAH (2007) 4 NWLR (PT 1024) 320 AT 336 PAR B-C (CA); GOVERMENT CROSS RIVER STATE V ASSAM (2008) ALL FWLR (PT 418) 351 AT 352, amongst other cases.
Respondent relied on the Part 5.5 of the AMCON Practice Direction, 2013 and submitted that it was complied with and that the writ on page 1-6 is signed. He relied on PATAMA LTD & ORS V UBN PLC (2015) LPELR 24535 (CA) and that the lower Court was right, since it complies with the AMCON Practice Direction,
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2013. He submitted that if there is anything unsigned, by virtue of the AMCON Practice Direction, 2013 it should be treated as an irregularity and that the Court can direct an amendment by the AMCON Practice Direction 2013. He referred to Part Vii of the AMCON Practice Direction, 2013 on formal defects and stated that the Court ought to have either allowed the defect to be swiftly regularised or remedied, that AMCON cases are sui generis and general provision does not apply to it. He referred to ABIA STATE UNIVERSITY UTURU V OTOSI (2010) LPELR 3565 (CA); DADA V OSHINKANLU (1995) 5 NWLR (PT 398) PG 755; A.G. OGUN STATE V AG FEDERATION (2002)18 NWLR (PT 789) 232; NDDC V PRECISION ASS. LTD (2006) 16 NWLR (PT 1006) PG 527.
He posit that until set aside, the decision remains binding on parties. He cited OGIDI & ORS V OKOLI & ORS (2014) LPELR – 22925 (CA); JIMOH & ORS V AKANDE & ANOR (2009) 5 NWLR (PT 1135) 549.
Respondent also submitted that a decision of Court mutually consented to by parties cannot be appealed against as of right except with the leave of Court. He relied on Section 241(2)(c) of the 1999 Constitution (as amended);
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SPDC NIG LTD V AZUKAEME (supra).
On the whole, Respondent submitted that the provisions of the enabling AMCON laws override the general provisions and that the lower Court was right to administer justice in accordance with the AMCON laws.
APPELLANTS REPLY
Appellant submitted that the Respondents submission is misleading and a misrepresentation of what had actually occurred. He said it was not in dispute that the suit commenced on the 11th September, 2015 and reiterated his submission in the Appellants brief.
On the import of AMCON practice direction, 2013 and part Vii (1) of the AMCON Practice Direction, 2013, he submits that the arguments are misconceived and it is merely a practice direction which is inferior to law and cannot supersede the law which is the Legal Practitioners Act. He relied onSLB CONSORTIUM LTD V NNPC (2011) 9 NWLR 122 (PT 1252) PG 317; BRAITHWAITE V SKYE BANK PLC (2013) 5 NWLR (PT 1346) PG 1; OKAFOR V NWEKE (2007)10 NWLR (PT 1043) PG 521.
That the provision of the Legal Practitioners Act comes to play in the signing of the writ of summons, that it is a statutory requirement. He further relied on
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EIMSKIP LTD V EXQUISITE IND LTD (2003) 4 NWLR (PT 809) PG 88. He submitted that the defect is a fundamental defect. He cited OKARIKA V SAMUEL (supra).
Appellant emphasised that the failure to sign the writ is not a defect that can be cured by an amendment, and consequently any amendment is a nullity. He cited in aid PETGAS RESOURSES LTD V MBANEFO (2018) 1 NWLR (PT 1601) PG 442; NWAIGWE V OKEKE (2008) 13 NWLR (PT 1105) PG 445; OGUNSEINDE V SOCIETE GENERALE BANK LTD.
Appellant submitted that having chosen to file the writ under the Federal High Court Rules 2009 instead of the forms under AMCON Practice Directions, 2013, any issue or dispute arising from here must be resolved by reference to provision of the Federal High Court Rules and not the AMCON Practice Directions, 2013 having waived his rights. He relied on ARIORI V ELEMO (1983) 14 NSCC PG 1 AT 8; R.A OLIYIDE & SONS LTD V OAU ILE IFE (2018) 8 NWLR (PT 1622) PG 564; NIGERIAN ARMY V SAMUEL (2013) 14 NWLR (PT 1375) PG 466.
RESOLUTION
The issues of the Appellant are tailored to the issues in the appeal while the Respondent’s issue is a sole broad question which embraces all the
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issues raised by Appellant. I shall therefore dwell on the Appellant’s issues while considering the Respondent’s issues.
This issue to my mind is a resolution of whether the Appellant having consented to amending the unsigned writ can raise an objection to same under the circumstances of the case.
Contrary to the premise of the Respondent, the writ originally filed to commence the action was under the Federal High Court Rules and not one of the initiating forms under the AMCON Practice Direction, 2013. The writ is at page 168 of the record and the signature of the counsel Stanley C. Ezenibe, Esq of Ade Oyebanji & Co, is conspicuously missing. At pages 1 – 6 is the amended version which is not marked amended. If it was signed ab initio there would be no need for the Court’s ruling at page 221 of the record. What then is the relevance of a signature? A signature authenticates the process filed, and if not signed by a legal practitioner or plaintiff it is invalid as there is no stamp of authority. See OKARIKA V SAMUEL (2013) 7 NWLR (PT 1352) PG 19. This Court reiterated the stance of the Supreme Court on guidelines on
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how Court process(es) are signed in ALHAJI ISMAIL AGWARU JEN V SANUSI ADAMU LAU (2014) LPELR 24167 (CA) AT PAGES 20-21 PAR E-A thus:
For the sake of guidance, all processes filed in Court, are to be signed as follows (a) The signature, which may be any contraption; b) The name of counsel clearly written; c) The party counsel represents; d) name and address of law firm. See SLB CONSORTIUM V NNPC (SUPRA), ALAWIYE V OGUNSANYA.
In this appeal the signature requirement was not complied with.
I must note that the Respondent’s brief was from a wrong premise and may mislead anybody when it maintains that the originating process is at pages 1 – 6 of the record, when indeed it is the corrected version.
Order 3 Rules 11(1) & 12(3) of the Federal High Court:
11(1) Originating process shall be prepared by a plaintiff or the plaintiff’s legal practitioner and shall be clearly printed in black and ink on white opaque A4 paper of high quality.
12(3) Each copy SHALL be signed by the legal practitioner or by a plaintiff where the plaintiff sues in person and shall be certified after verification by the Registrar
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as being a true copy of originating process filed.
See TABIK INVESTMENT LTD V GUARANTY TRUST BANK PLC (supra). In addition, the Legal Practitioners Act also provides in Sections 2(1) & 24 that a writ of summons should be signed by a legal practitioner. This is a mandatory requirement of the law and the failure to adhere results in the writ being termed defective, null and void ab initio and incapable of invoking the jurisdiction of the Court. See BRAITHWAITE V SKYE BANK PLC (2013) 5 NWLR (PT 136) PG 1; OKARIKA V SAMUEL (2013) 7 NWLR (PT 1352) PG 19AT 37; EWUKOYA V BUARI (2016) LPELR 40492 (CA); TANIMU V RABIU (2018) 4 NWLR (PT 1619) PG 505; HERITAGE BANK LTD V BENTWORTH FINANCE (NIG) LTD, DELIVERED BY APEX COURT ON 23RD FEBRUARY, 2018; FIRST BANK OF NIG PLC V MAIWADA (2013) 5 NWLR PT 1348 PG 44.
The Respondent’s grouse in the preliminary objection is that grounds 3 & 4 of the Notice of Appeal from which issue 2 is distilled is defective because leave of Court was not obtained as it emanates from the ruling of 7th October, 2016.
The complaint in grounds 3 & 4 are on the jurisdiction of the Court in allowing an amendment to the writ.
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Without wasting time, MADUKOLU V NKEMDILIM (supra) sets guidelines for when a Court is robbed of jurisdiction, one of which is when an action is commenced by faulty process; it deprives the Court of jurisdiction. The holding of the Supreme Court in OKARIKA V SAMUEL is very apt thus:
“The authority of the case of MADUKOLU V. NKEMDILIM under reference (SUPRA), is very well positioned on the jurisdiction of a Court to adjudicate on a matter before it. The threefold condition which must be fulfilled are hereunder listed as apparent. In other words, the jurisdiction of a Court can only be exercised 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; (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 the due process of law and upon the fulfilment of any condition precedent to the exercise of jurisdiction.”
It is trite that the writ of summons is a mode of commencing an action
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therefore it is a fundamental issue and goes to the root of jurisdiction failure to comply with provision of Section 2 (1) and 24 of the Legal Practitioner Act, therefore if a writ is unsigned it is in the same category of a writ signed in the name of the law firm. See OKARIKA & ORS V SAMUEL & ANOR (supra):
“The nature of a Notice of Appeal being an originating process is well settled and should not be a matter of controversy. Being an initiating process therefore it must be certified as competent in order to give it legality and recognition.”
In this case, it is the writ of summons that is the originating process irrespective of the fact that it is an AMCON Matter and it must comply with statutory requirements especially as it is a creation of statute. It is the practice direction that sets out the initiating process via forms which also includes the mode of initiating process under the rules of the Federal High Court. The Apex Court held on the importance of jurisdiction in the process of adjudication thus:
“Jurisdiction is the life wire of adjudication which is constitutionally conferred. No Court or any party/parties can by consensus
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confer jurisdiction. The locus classical authority in the celebrated case of MADUKOLU V. NKEMDILIM (1962) 1 All NLR 587 of 594 is very instructive on the indispensable nature of jurisdiction which can be raised of any stage of a proceeding even if for the first time in this Court.”
See also EWUKOYA V BUARI (supra); INTEGRATED MERCHANTS LIMITED V OSUN STATE GOVT & ANOR.
Therefore, the issue of a defective writ is not negotiable it is a jurisdictional point. In BRAITHWAITE V SKYE BANK PLC (supra), the Court held that a writ of summons is an originating process by which actions are commenced. The competence of such process is a pre-requisite for valid and subsisting claim. Where the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction thereon. Jurisdiction of a Court is constitutional. No Court can therefore confer jurisdiction upon itself nor can parties by their mutual agreement also confer any jurisdiction. A defective originating process cannot activate the Court’s jurisdiction.
The issue can be raised at any time so the new counsel who spotted the defect could raise
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same and a Court of law can rule on same at the end of the matter. Order 51 of the Federal High Court Rules 2009 relied upon by the lower Court has been laid to rest in FIRST BANK PLC V MAIWADA (supra) that this rule takes a second position in this scenario, it cannot redeem a process wrongly signed or not signed at all. It is a statutory substantive requirement which cannot be cured by the provision in the rules of Court. The act supersedes the rules. See also BRAITHWAITE V SKYE BANK PLC (supra) AT PG 19-20.
Therefore, this issue also cannot be cured by the AMCON Practice Direction which is a rule enacted for exigencies, it cannot supersede the Legal Practitioner’s Act. In ALHAJI UMAR ALIYU TECHNICAL V FBN & ORS (2018) LPELR – 44663 (CA) this Court held on the effect of failure to sign a writ of summons thus:
“It is perhaps important to first begin by disposing off the issue of failure of the Appellant as Plaintiff in the Court below to sign the writ of summons by which this action was commenced at the Court below as this deals with the question of the competence of the matter and by implication, the jurisdiction of the Court below in
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entertaining the case in the first place…A close examination of the said writ of summons shows that it was not signed either by the Appellant as Plaintiff or his Counsel… Anyways, the position at law is that an unsigned writ of summons is out rightly void and not even a subsequent Amended writ could effect a cure to it. It is void and remains void and nothing can be added to it. See NZOM & ANOR vs. JINADU (1987) 2 SC 205. The consequence of a void writ of summons is that the case it has acted as an initiating process remains incompetent and that this deprives the Court of the jurisdiction to entertain same. The position is that among other things, for a case to be competent it has to be initiated by due process of law as a condition precedent without which the Court cannot exercise its jurisdiction. See LADO vs. CPC (2011) 12 SCNJ 383. It is important to perhaps, draw attention to the fact that the effect of an unsigned initiating process was discussed by the apex Court in the case of OMEGA BANK NIG PLC vs. OBC LTD (2005) ALL FWLR (PT. 249) 1964 AT 1993, where the old sage, per NIKI TOBI, JSC (OBM) had this to say; “A document which is not signed does
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not have any efficacy in law. As held in cases examined, the document is worthless and a worthless document cannot be efficacious.” The failure therefore to commence proceedings with a valid writ of summons is an infraction, which clearly borders on the question of jurisdiction and the competence of the Court to adjudicate on the matter. See the case of BUHARI vs. ADEBAYO (2014) LPELR-22521 and KIDA vs. OGUNMOLA (2006) LPELR-1690 SC. To this end, the Notice of Preliminary Objection is hereby sustained. It will in the circumstances of this position be unnecessary to deal with the other issues raised under the Notice of Preliminary Objection, the determination of the question of failure of signing the writ of summons having completely knocked off the substratum of the Appellant’s Case right from its inception at the Court below. This Appeal is therefore dismissed.”
From the above it is clear that the act of not signing or signing is viewed seriously by the Court. The objection/or defect cannot be waived, therefore, the Appellant’s new counsel was right to have raised same at the earliest opportunity and the lower Court was wrong to have held that they
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had waived their rights by not objecting in the first place also trivializing same as an irregularity curable by Order 51(1) of The Federal High Court Rules 2009 is a total disregard of judicial precedents.
Furthermore, the AMCON proceedings have to be initiated and such procedure is the fundamental process of commencing an action, it cannot invoke its rules to save the process being a statutory requirement and cannot be termed an irregularity.
The case precedents abound that ought to have guided the lower Court in reaching its decision. Once a jurisdictional issue is raised it cannot be wished away under the guise of technicality but dealt with according to the requirement of the law.
Again in ODEJAYI V HENLEY IND LTD (supra) this Court held thus:
Where a writ of summons is not properly signed, it means the suit was not validly initiated and robs the court of the jurisdiction to entertain the suit……A defective writ of summons is void ab initio. It is a nullity and cannot be amended. Indeed all proceedings based on it are a nullity.
The Apex Court found itself in this situation in the case of
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OGUNSEINDE V SOCIETE GENERALE BANK LTD (supra) where it granted an amendment and later in the proceedings realised the error and wasted no time in admitting same and held that it was a dead process and cannot be amended.
Once the fundamental process is defective then everything built on it will be affected and collapses like a pack of cards it cannot stand. See MACFOY V U.A.C. (supra).
I draw strength from the dictum of FABIYI, JSC (RTD) inFIRST BANK V MAIWADA (supra) AT PAGE 485 PAR F-G:
I agree that the age of technical justice is gone. The current vogue is substantial justice. See DADA V DOSUNMU(2006) 12 PMSC 1115 (2006) 18 NWLR (PT 1010) 134. But substantial justice can be attained not by bending the law but by applying it as it is; not as it ought to be. There is nothing technical in applying the provisions of Section 2(1)& 24 of the Legal Practitioners Act as it is drafted by the legislature. The law should not be bent to suit the whims and caprices of the parties/counsel. One should not talk of technicality when a substantive provision of the law is rightly invoked.
In the light of the above dictum, it behoves on legal
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practitioners to closely vet their processes before filing initiating processes or any process at all. See ZAKIRAI V MOHAMMED & ORS 2017 LPELR 42349 (SC):
“A litigant may submit to a procedural jurisdiction of the Court, but no litigant can confer jurisdiction on the Court where a Statute or the Constitution says that the Court does not have jurisdiction. Thus, while substantive jurisdiction of the Court cannot be waived, a party can waive a matter relating to procedural jurisdiction of the Court, and this is usually determined from reliefs sought in the process – Mobil Prod. (Nig) UnLtd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1 SC…
The lower Court had no business directing an amendment of a dead process having been fundamentally defective from the date of filing. Having done so, it must at the earliest opportunity it is brought to its attention do the needful.
In OGUNSEINDE V SOCIETE GENERAL BANK LTD (supra) PG 248 PAR B-C:
…from the above guides of his Court, it follows that the amendment granted by this Court which the signature column was rectified was an amendment in futility as the motion of
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10th March, 2017, seeking leave to amend the defective notice of appeal was a prayer to resuscitate a dead process and so the grant was erroneously made and the error has to be admitted.
In the light of the above analysis, the writ having not been signed is fundamentally defective, null and void and the lower Court erred in law by directing the amendment. The lower Court lacks jurisdiction to entertain the matter and all proceedings from the inception of the case are a nullity.
Consequently, I resolve issues 1, 2, 3, & 4, in favour of the Appellant.
The appeal succeeds and it is accordingly allowed. The ruling of the lower Court is set aside and Suit No: FHC/L/CS/1429/2015 is also struck out. Costs of N200,000 is awarded in favour of the Appellant against the Respondent.
MOHAMMED LAWAL GARBA, J.C.A.: I have read, in draft, the lead judgement written by my learned brother Abimbola Osarugue Obaseki-Adejumo, JCA in this appeal and completely agree, on the authority of the many cases cited and more, that the unsigned writ used to commence the Respondent’s case before the High Court was a dead
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initiating process which could not be revived and brought back to legal life to validly invoke the requisite junsdiction of that Court to entertain and adjudicate over the case. The case was in the circumstances not initiated by due process of the law to vest the High Court the necessary power and authority to adjudicate over it. Braithwaite v. Skye Bank Plc (2013)5 NWLR (1346) 1 (cited in the lead judgement). Buhari v. Adebayo (2014)10 NWLR (1416) 560, Idegwu v. State (2015)6 NWLR (1455) 286. SPDCN Limited v. Ekosi (2016)2 NWLR (1496)278, Okarika v. Samuel (2013) 7NWLR (1352)
The appeal is allowed by me too, in terms of the lead judgement.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A.
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Appearances:
Stanley Ugwoke with him, N. J. Inyang For Appellant(s)
S.E. Ezenile For Respondent(s)
Appearances
Stanley Ugwoke with him, N. J. Inyang For Appellant
AND
S.E. Ezenile For Respondent
