MR. MUFUTAU AYINLA OYEYEMI v. MOBIL OIL NIGERIA PLC (2013)

MR. MUFUTAU AYINLA OYEYEMI v. MOBIL OIL NIGERIA PLC

(2013)LCN/6659(CA)

In The Court of Appeal of Nigeria

On Monday, the 16th day of December, 2013

CA/I/250/2009

RATIO

EFFECT OF FAILURE TO COMMENCE A SUIT WITH A VALID WRIT OR STATEMENT IF CLAIM

The validity of a proceeding before a court is a fundamental and necessary requirement for the competence of the suit and preceding the process set out to commence. It is an indispensable condition, necessary for the competence of the suit. Failure to commence a suit with a valid writ and/or statement of claim goes to the root of the action since the conditions precedent to the exercise of the court’s jurisdiction would not have been met to duly place the suit before that court, see, MADUKOLU v. NKEMDILIM (1962) SCNLR 341; KIDA OGUNMOLA (2006) 13 NWLR (Pt. 997) 377. Per CHIDI NWAOMA UWA, J.C.A.

WHETHER COURT PROCESSES MUST BE SIGNED BY LEGAL PRACTITIONER’S

See, also S.L.B. CONSORTIUM LTD. v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317; F.B.N. PLC v. MAIWADA (2013) 5 NWLR (Pt. 1348) P. 44 and more recently, NIGERIAN ARMY v. SAMUEL (2013) 14 NWLR (Pt. 1375) P. 466. Per CHIDI NWAOMA UWA, J.C.A.

WHETHER IN ANY PROCEEDING, A PRELIMINARY OBJECTION CHALLENGING THE JURISDICTION OF COURT MUST BE RESOLVED FIRST

“The court had a duty to make its decision of the preliminary objection known to the parties before proceeding to decide the appeal thereby giving opportunity to anyone not satisfied with its decision to appeal against same. In the instant case the court did not only fail to rule on the preliminary objection as to the competence of the appeal but proceeded suo motu to decide the appeal without hearing the parties.”

At page 267 his Lordship Uwais C.J.N. (as he then was) held thus:

“There can be no doubt that the court below committed a serious error. Since the parties were denied the right to fair hearing as guaranteed by the constitution, the determination of the appeal before that court is a nullity and I have no hesitation to declare it null and void.”

See, also AHANEKU v. EKERUO (2002) 1 NWLR (Pt. 748) 301 at 308. Per CHIDI NWAOMA UWA, J.C.A.

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

MR. MUFUTAU AYINLA OYEYEMI Appellant(s)

AND

MOBIL OIL NIGERIA PLC Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Oyo State High Court delivered on 31st October, 2008 by Ige, J. in favour of the respondent, then defendant in the trial court. The plaintiff now Appellant by way of writ of summons and statement of claim against the Respondent sought some declaratory reliefs as well as an order converting the termination of his appointment into retirement and an order for the payment of his entitlements based on the appellant’s right as a pensioner of the Respondent. The Respondent in his statement of defence denied liability arising from the termination of the contract of employment of the Appellant. At the close of trial, the learned trial judge held that that the Respondent had exercised its common law right to hire and fire and as such, the termination of the Appellant’s contract of service by the Respondent was lawful. All the reliefs sought by the Appellant were refused and dismissed in its entirety. The appellant appealed being dissatisfied with the judgment and urged that the judgment be set aside.

After the Appellant had filed and served his brief of argument on the Respondent, the Respondent observed that the originating processes filed by the Appellant in respect of the proceedings in the trial court were signed by a law firm rather than a legal practitioner as laid down in OKAFOR & 2 ORS. v. NWEKE & 4 ORS. (2007) 3 S.C. (Pt. 11) p. 55 at 62-63, PARAS. 20-35, 64 PARAS. 5-20. As a result, the Respondent filed a preliminary objection on 13/11/09 to the hearing of the Appeal, which was argued in the Respondent’s brief and was responded to by the Appellant in his reply brief filed on 23/6/11.

For the determination of the Appeal, the appellant formulated five (5) issues. They are as follows:
“(1) Whether the learned trial judge was right in basing his decision on the issues that he raised suo motu and outside the pleadings of the parties and evidence on the record of the court that a collective agreement will not be binding on an employer unless it can be proved or shown that the terms and conditions in the collective agreement have been adopted and incorporated into the contract of service of such employee.
(2) Whether the respondent can terminate the appointment of the appellant without compliance with the provision of the collective agreement Exhibit B and without payment of monthly pension to the appellant as provided for in Exhibit C.
(3) Whether the learned trial judge was right in the absence of issues in the pleading and evidence on record and counsel address on it in incorporating into exhibits B and C extraneous issues that the appellants should have exercised the right to retire under Exhibit C before he was fired by the respondent and that exhibit B is defective as to date of commencement and execution by the parties.
(4) Whether the evidence of the appellant that the Marketing Director of the respondent, Mr. G. B. Dal Silva, threatened to return him to detention before he signed exhibits E and F was discredited and if the answer is in the negative whether the finding of the learned trial Judge that D.W.1 was not cross examined on the issue of duress was perverse in the absence of evidence from him on the issue of duress.
(5) Whether there is distinction in law between retirement of appointment and conversion of termination of appointment into retirement and if the answer is in the affirmative whether the decision of the learned trial judge that the appellant cannot be reinstated into his employment is perverse having regard to the fact that the appellant did not seek any relief for his reinstatement but only sought relief for the conversion of the termination of his employment into retirement.”

In response to the above issues, the respondent objected to the competence of the appeal, argued in its respondent’s brief and in the alternative, should the preliminary objection fail, formulated three (3) issues for the determination of the appeal. They are:
“(1) Whether the collective agreement – Exhibit B between the Respondent and the Petroleum and Natural Gas Senior Staff Association (PENGASSAN) which was undated and was not executed by the parties, is enforceable by the Appellant vis-a-vis his letter of appointment which was neither pleaded nor tendered in evidence before the trial court?
(2) Having regards to the Appellant’s evidence before the trial court as can be seen in the record of appeal, whether the Appellant’s acceptance of his termination letter and collection of his entitlements were under duress?
(3) Whether the learned trial judge was right to apply the principle that part-performance does not apply to a contract of service as laid down in DR. BEN CHUKWUMA v. SPDC (1993) 4 NWLR (Pt. 289) PAGE 512 AT 537 PARA. F-G to the instant case?”

In arguing the appeal, the learned counsel to the Appellant, Oluwole Aluko Esq. adopted and relied on his brief of argument dated and filed on 13/8/09. In arguing his issue one, it was submitted that in the absence of evidence from the respondent in the record of the court the finding of the learned trial judge that deprived the appellant from relying on the collective agreement Exhibit ‘B’ by which the respondent can only terminate his appointment after two or three warnings to him is perverse.

On his issue two, it was submitted that from available records, the appellant by Exhibits ‘A’, ‘A1’ and ‘A2’ received an award from the respondent for his loyal service to the respondent. It was argued that the appellant did not have a single query or warning to him before his appointment was terminated in breach and violation of the collective agreement that is, Exhibit ‘B’, that there must be two or three warnings to him. It was submitted that from Exhibit ‘C’, it is clear that the appellant contributed to the Pension Scheme, as part of his salary was deducted monthly towards it. It was the contention of the learned counsel that it would be inequitable and unjust for the respondent to retain the payments that the appellant had made towards the monthly pension and the appellant’s appointment terminated without payment of the monthly pension to him. See, BELLO v. NEPA ILRN PAGE 200 at 206-207. It was submitted that the appellant is under legal obligation to comply with Exhibits ‘B’ and ‘C’.

On his third issue, it was the submission of the learned counsel that the finding of the learned trial judge is perverse when he held that the appellant had exercised the right to retire under Exhibit ‘C’ before he was fired by the respondent and that Exhibit ‘B’ is highly defective because it had no date of commencement, it did not show that it was executed by the parties thereto, and therefore a worthless document.

On the appellant’s fourth issue, it was submitted that the learned trial judge’s finding that the appellant’s termination of appointment was valid is perverse. It was argued that the D.W.1 was not a competent witness on the issue of duress and did not give evidence on it, therefore could not have been cross examined on the issue that he did not refer to in his evidence. It was contended that Mr. Dal Silva, the Manager of the Respondent, whom the appellant alleged threatened to return him to detention if he refused to sign for his letter of termination and collect his entitlement is the only competent witness on the issue of duress under Section 77(a) and (b) of the Evidence Act.
It was further argued that there was no evidence to show that the D.W.1 was present when Mr. Dal. Silva handed over the termination letter, Exhibit ‘D’ to the appellant. Also that the finding of the learned trial judge that the appellant did not receive Exhibits ‘E’ and ‘F’ under duress is perverse and in violation of the provision of Section 77 (a) and (b) of the Evidence Act since Mr. Dal Silva the respondent’s staff who issued the threat to the appellant was not called by the respondent to testify, See, KATE ENTERPRISES LTD v. DAEWOOD NIG. LTD. (1985) 7 SC (Pt. 1), P. 1 at 46.

It was argued that there is evidence on record of the appellant’s that Mr. Dal Silva forced him to sign the letter, and that this should have made it imperative that he be called to challenge the appellant’s evidence on the issue of duress.

On the appellant’s fifth and last issue, it was submitted that the learned trial judge was in error when he held that an employee whose appointment has been wrongfully terminated is not entitled to reinstatement in coming to the conclusion that the reliefs of the appellant cannot be granted by the court. It was argued that the case of DR. CHUKWUMA v. SPDC (1993) 4 NWLR (Pt. 289) P. 512 at 537 F-G relied upon by the trial judge could be distinguished from the present case on the ground that there was a relief in Chukwumah’s case that he should be reinstated into his position before the termination whereas, there is no such relief in the present case.

In response to the appeal, the Respondent raised a preliminary objection to the hearing of the appeal and urged that same be struck out. The respondent Prayed as follows:
“NOTICE is hereby given that the Respondent/Applicant shall by way of Preliminary Objection at the hearing of this Appeal contend that the Appellant/Respondent’s Appeal filed by way of a Notice of Appeal dated 29th January, 2009 be struck out.
TAKE FURTHER NOTICE that the Respondent/Applicant shall at the hearing of the said Preliminary Objection be relying on the undated Appellant/Respondent’s Writ of Summons and Statement of Claim dated 19th August 1999 respectively, contained in pages 2 and 3A of the Record of Appeal.

Grounds for Preliminary Objection
1. The Appellant filed his Originating processes (Writ of Summons and Statement of Claim) at the High Court of Oyo State and signed as “Oluwole Aluko & Co.”, a person who is not a Legal Practitioner enrolled to practice as a Legal Practitioner in Nigeria and contrary to the Supreme Court’s decision in OKAFOR & 2 ORS. v. NWEKE & 4 ORS. (2007) 3 SC (Pt. 11) PAGE 55 AT 62-63, PARAS. 20-35, PAGE 64 PARAS 5-20 AND ORDER 25 RULE 4 (1) OF THE HIGH COURT OF OYO STATE (CIVIL PROCEDURE) RULES 1988.
2. The Appellant’s claim in the High Court was not commenced in compliance with due process of law and therefore robbed the lower court and this Honourable Court jurisdiction to entertain same as stated by the Supreme Court in MADUKOLU v. NKEMDILIM (1952) 2 NSCC PAGE 374 AT 379-380.
3. This appeal cannot be predicated on an incompetent suit that was commenced in the lower court, as one cannot put something on nothing and expect it to stand as was held in MACFOY v. UAC (1962) AC 152 AT 160.”

The preliminary objection was argued in the respondent’s brief. In arguing same, the learned counsel to the respondent O. Oshobi Esq. appearing with K. T. Olawumi Esq. for the Respondent adopted and relied on the respondent’s brief of argument dated and filed on 26/1/11.

It was submitted that the Appellant’s writ of summons and statement of claim dated 19th August 1999 was signed by the law firm of “Oluwole Aluko & Co.”, pages 12 and 3A of the printed records. It was argued that both are incompetent. It was submitted that the Rules of the High Court of Oyo State 1988 settled the position as to who can sign the pleading of a party in its Order 25 Rule 4(1) thereof.

It was submitted further that the Apex Court in Nigeria has made it clear who must sign a court process for it to be competent, it must be signed by a legal practitioner whose name is on the roll of the Supreme Court qualified to practice as Barrister and Solicitor in Nigeria. See, OKAFOR & 2 ORS v. NWEKE & 4 ORS (2007) 3 SC (Pt. II) PAGE 55 at 52-63 PARAS. 5-20.

It was submitted that the signature of “Oluwole Aluko & Co.” on the writ of summons and statement of claim of the Appellant robs the pleadings of competence ab initio as “Oluwole Aluko & Co.” is not a registered legal practitioner enrolled to practice law as a Barrister and Solicitor in this Court. See, NWANI v. BAKARI (2005) ALL FWLR (Pt. 281) PG. 1803 at 1825-186 PARAS. C – B and FIRST BANK OF NIGERIA PLC & ANOR v. MAIWADA (2003) ALL FWLR (Pt. 151) PG. 2001 at 2014 PARAS. C-H at 2015 PARAS B-C.

It was argued that the Oyo State High Court lacked the jurisdiction to entertain this matter in the first place and consequently the hearing which is deemed not to have taken place in law. See, MACFOY v. U.A.C. (1962) AC 152 AT 160 and MADUKOLU v. NKEMDILIM (1962) 2 NSCC P. 374 at 379-380.

It was submitted that the writ of summons and statement of claim are liable to be struck out and as a result this appeal.
Should the preliminary objection be overruled, the learned respondent counsel argued the main appeal in the alternative. In arguing his first issue, the learned counsel submitted that the trial court was right when he held that despite any provision in Exhibit ‘B’, the common law right to terminate the appointment of the Appellant is unassailable. See, NWOBOSI v. ACB LTD. (1995) 6 NWLR (Pt. 404) P. 658 at 681 PARA. E-H.

It was submitted that the trial court was right when it held that a collective agreement that was not incorporated in the original contract of service is unenforceable. See ENO OSAGIE v. NNB PLC. (2005) 3 NWLR (Pt. 913) 513 at 542 PARAS. E-H TO 543 PARAS. A-D; Also, UBN LTD. v. EDET (1993) 4 NWLR (Pt. 287) P. 288 amongst others. Further, that the Appellant’s Exhibits ‘B’ and ‘C’ did not in any of its clauses make reference to contract of service which is evidenced by his letter of appointment. It was the contention of the learned counsel that the appellant’s failure to produce his letter of appointment which was also not pleaded is fatal to his case as same would have shown the terms of his employment with the Respondent. See, ZIDEEH v. R.S.C.S.C. (2007) 3 NWLR (1022) PAGE 554 at 570, PARA. A-D and Section 149(d) of the Evidence Act, CAP E14, Laws of the Federation of Nigeria 2004. See also, AWOSHILE v. SHOTUBO (1986) 3 NWLR (Pt. 29) PAGE 471; ONWUJIBA v. OBIENU (1991) 4 BWLR (Pt. 183) 16 amongst others. We were urged to presume and hold that the failure of the Appellant to place his contract of service by way of pleading same in his statement of claim and tendering it at the trial implies that the contract of service would have been unfavourable to the Appellant if he had produced it.

It was argued that Exhibit ‘B’ which the appellant heavily relied upon to complain about the termination of his appointment with the Respondent is defective in that it had no commencement date and it was not executed by the parties. It was submitted that Exhibit ‘B’ is a worthless document, void and without any legal flavour. We were urged not to act on Exhibit ‘B’ as same lacks legal effect.

On his issue two, it was submitted that the argument that the appellant signed the letter of termination under duress is unfounded. It was further argued that the appellant before the trial court lied on oath and that the court should not act on his evidence. See, AYANWANLE v. ATANDA (1988) 1 NWLR (Pt. 68) P. 22 at 36 PARA. C. We were urged not to reverse the decision of the trial court unless it is found to be perverse or unsupported by evidence, see, ORO v. FALADE (1995) 5 NWLR (Pt. 396) P. 385 at 416 PARA. E-G.

It was further argued without conceding that Exhibits ‘B’ and ‘C’ entitled the Appellant to any pension, which the Respondent has demonstrated that he is not entitled to, the appellant has waived such right by signing, accepting the letter of termination and collecting his entitlements from the Respondent, see, MBELEDOGU v. ANETO (1996) 2 NWLR (429) P. 159 at 156 PARA. C-D. We were urged to affirm the decision of the trial court.

On issue three, it was submitted by the learned counsel to the respondent that the facts of two cases may not be the same but a principle laid down in one case can be applied in another case if it is germane to the other case. Further, that what the law requires is that principles laid down in a case can be used as a guide in another case. It was submitted that the trial court utilizing the case of BEN CHUKWUMA v. SPDC (SUPRA) in the instant case cannot be faulted, see ADEGOKE MOTORS LTD. v. ADESANYA (1989) 3 NWLR (Pt. 109) P. 250 at 275 PARAS. B-D and ADESOKAN v. ADETUNJI (1994) 5 NWLR (Pt. 346) P. 540 at 577 PARAS. A-E. We were urged to affirm the decision of the trial court.

In his reply, dated 22/6/2011 filed on 23/6/2011 which was adopted and relied upon by the learned counsel to the appellant in which the learned counsel responded to the preliminary objection, filed and argued by the respondent, the learned counsel to the appellant drew a distinction between procedural and statutory jurisdictions of the court.

It was argued that procedural jurisdiction could be waived and was waived in the present case by the unconditional entry of appearance and filing of the statement of defence under Order 2 Rule 2 (1) of the High Court Rules of Oyo State and Order 20 Rule 5(1) Court of Appeal Rules 2011 and that the respondent’s application ought not to be entertained. It was argued that this court ought not to entertain an appeal on a procedural irregularity at the court below that has been cured by the respondent taking part in the proceedings.

The learned counsel relied on the cases of COLE v. MARTINS (1968) 1 ALL NLR P. 164 at 165 and UNITY BANK PLC. v. ABIOLA (2009) ALL FWLR (Pt. 452) P. 1082 at 1098 and 1100 to argue that court processes signed by a law firm are valid. Further, that Order 25 Rule 4(1) of the High Court Rules of Oyo State does not apply to the facts of this case.

It was argued that, the source of the procedural jurisdiction of the Court of Appeal is the Notice of Appeal and not the writ of summons and the statement of claim at the lower court.
In reply to the respondent’s brief the learned counsel to the appellant reargued his appeal. I would therefore not review same again.

It is trite that where a preliminary objection has been raised challenging the jurisdiction of the court, same must be resolved first and if need be, the substantive matter and appeal in this case, depending on the outcome of the preliminary objection. In the case of ONYEMA & ORS. v. EGBUCHULAM (1996) 5 NWLR (Pt. 448) 224, at 265 HIS LORDSHIP KUTIGI, JSC (as he then was) in this respect held thus:
“The court had a duty to make its decision of the preliminary objection known to the parties before proceeding to decide the appeal thereby giving opportunity to anyone not satisfied with its decision to appeal against same. In the instant case the court did not only fail to rule on the preliminary objection as to the competence of the appeal but proceeded suo motu to decide the appeal without hearing the parties.”
At page 267 his Lordship Uwais C.J.N. (as he then was) held thus:
“There can be no doubt that the court below committed a serious error. Since the parties were denied the right to fair hearing as guaranteed by the constitution, the determination of the appeal before that court is a nullity and I have no hesitation to declare it null and void.”
See, also AHANEKU v. EKERUO (2002) 1 NWLR (Pt. 748) 301 at 308.

I would therefore resolve first the preliminary objection of the respondent who has challenged the jurisdiction of the trial court to have entertained the matter in the first place considering the fact that the undated writ of summons and the statement of claim dated 19/8/1999 were signed by “Oluwole Aluko & Co.” with a mark or signature above it
“Oluwole Aluko and Co.” is a firm, at pages 2 and 3A of the printed records rather than a legal practitioner. The bottom of the statement of claim reads as follows:
“SGD.
Oluwole Aluko & Co.,
Plaintiff Solicitor.
189b, Adekule Fajuyi Road.
Adamamasingba.
Ibadan.”

The learned counsel to the respondent had argued that the firm of Oluwole Aluko & Co. that purportedly signed the writ of summons and statement of claim is not a legal practitioner that could sign the court process and that the undated writ of summons and statement of claim from which the entire case was predicated upon are incompetent for which reason the trial court ought not to have entertained the matter that gave rise to this appeal.

It is clear from the reproduced portion above that there was a signature no doubt but, there is no identifiable legal practitioner that signed the original writ and statement of claim, worse still the writ was undated and unsigned. The name of a law firm beneath the signature is not a legal practitioner admitted to practice law in Nigeria.

Firstly, Order 25 Rule 4 (1) of the Oyo state High Court (Civil Procedure) Rules, 1988 relied upon by the learned counsel to the respondent in his objection provides as follows:
“4(1) Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, Sums and Numbers shall be expressed in figures but may also be expressed in words. Pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person.”
(Underlined mine for emphasis)
The above provisions of the Oyo State High Court Rules, are clear that pleadings shall be signed by a legal practitioner unless a party sues or defends in person, which is not the case here. It is a mandatory requirement of the Rules of the trial court which was not complied with the writ of summons and statement of claim in this case not having been signed by a legal practitioner are incompetent.

Secondly, Section 2 (1) of the Legal Practitioners Act, CAP. 207 LFN 1990 has clearly stated who barrister and solicitor entitled to practice as such in Nigeria as follows:
“Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the roll”
The above Section must be read with Section 24 of the same Act which defines who a legal practitioner is. It states as follows:
“A person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office or proceeding.”
The above provisions have been given clear judicial interpretation in the celebrated case of OKAFOR v. NWEKE (supra) relied upon by the learned counsel to the Respondent in his preliminary objection where a Motion on Notice was signed by a law firm, his Lordship Onnoghen, JSC at pages 531-532, held thus:
“From the above provision, it is clear that the person who is entitled to practice as a legal practitioner must have had his name on the roll. It does not say that his signature must be on the roll but his name…….
The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner he must have his name on the roll otherwise he cannot engage in any form of legal practice in Nigeria.”
(underlining mine for emphasis)
The above provisions talk about name not signature in the roll. It cannot be said that Oluwole Aluko and Co. is a legal practitioner as defined and recognized by law. The law permits a legal practitioner that is identifiable to sign court processes not the firm. Beneath the signature, the name of the person who signed the writ and the statement of claim should be clearly stated otherwise court processes could be signed by anyone in the firm, a clerk, a confidential secretary, messenger and even the security man on the assumption that they were signed by a legal practitioner in the firm who has been called to the Nigerian Bar and has his name on the roll of barristers and solicitors. By looking at the “signature” above the name of the firm in the present case, one cannot tell who signed it, and this is dangerous for the legal practitioners where an originating process emanating from their firm cannot be identified to be that of a particular legal practitioner in the firm. Having the name of the signatory below the signature, is to protect members of the legal profession to ensure that a process emanating from their firms actually were signed by a legal practitioner that is qualified to do so, this would also check touts endorsing court processes.
A case on all four with the present one is BRAITHWAITE v. SKYE BANK PLC (2013) (Pt. 1346) 5 NWLR P.1, where the originating processes, the writ of summons and the statement of claim were held to be defective not having been signed by a legal practitioner as defined above.

Court processes not signed by legal practitioners as defined above, in this case the originating processes is a nullity ab initio. The nullity of the originating processes is very fundamental and goes to the root of the action.
See, also S.L.B. CONSORTIUM LTD. v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317; F.B.N. PLC v. MAIWADA (2013) 5 NWLR (Pt. 1348) P. 44 and more recently, NIGERIAN ARMY v. SAMUEL (2013) 14 NWLR (Pt. 1375) P. 466.

The learned counsel to the appellant had argued that the defect in the originating processes are defects in the processes before the trial court and not this court and that the respondent/objector did not raise same in the lower court and had therefore waived his right irrespective of the provisions of Order 25 Rule 4 (1) of the High Court of Oyo State (Civil Procedure) Rules 1988 which provides that the processes be signed by a legal practitioner.
On this issue of waiver, the issue of jurisdiction touches on the root of an action, it cannot be waived. In the present case, it is more that an irregularity, see SBN v. OKOJIE (222) 22 WRN 51; (2002) 8 NWLR (Pt. 768) 48 (2002) 9 NSCQR.

An objection that challenges the jurisdiction of the trial court which gave rise to the appeal could be raised anytime, even in the Apex court. Holding that the respondent/objector had waived his right by going as far as this appeal before the objection, would be urging this court to deviate from the decided Supreme Court authorities to which I am bound, in FIRST BANK OF NIGERIA PLC & ANOR v. MAIWADA (SUPRA) S.L.B. CONSORTIUM LTD v. NNPC (SUPRA). The cases citied and relied upon by the learned counsel to the appellant are no longer good laws and are not applicable, the line of cases of COLE v. MARTINS (supra). This court cannot deviate from the more recent decisions; the argument is not tenable in law. The respondent/objector could not have waived his right to object to the defective processes because the case is now on appeal.

Based on the rules of the trial court and the legal practitioners Act, the two originating processes are defective and incapable of initiating any competent action. This suit was wrongly commenced, since the originating processes are fundamentally defective. The action, Suit No: I/593/99 purportedly commenced by the defective originating processes, is incompetent and therefore incapable of resulting in a competent appeal, the writ of summons and statement of claim are hereby struck out.

In sum, I find merit in the respondent’s preliminary objection; I sustain same and strike out this appeal for being incompetent.
I award costs of N50,000 against the appellant.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, C. N. Uwa, J.C.A availed me the opportunity to read in advance the judgment just delivered.
I agree that this appeal is incompetent and should be struck out. On the authorities cited and relied on by my learned brother, and which are apt to the determination of the notice of preliminary objection, it is obvious that the originating processes, which are the foundation of the action are incompetent. They cannot sustain the life of the action and by extension this appeal. The preliminary objection therefore has merit and is hereby sustained by me. This appeal is therefore incompetent and is accordingly struck out.
I abide by the order on costs.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my Lord Chidi Nwaoma Uwa, J.C.A. and I am in agreement with the judgment.

The issue of a legal process such as a Writ of Summons being signed by a law firm has been laid to rest by the Supreme Court in the case of Emmanuel Okafor & Ors v. Augustine Nweke & Ors (2007) 10 NWLR part 1043 p. 521 et al where the Supreme Court held that any such legal process filed by Counsel is incompetent.

In view of the position taken by the Supreme Court, any adamantine argument of Counsel to the contrary can only be regarded as a forlorn wish.

I agree with my Lord that the Preliminary Objection has merit and that the appeal be struck out.

Appearances

Oluwole Aluko Esq.For Appellant

AND

O. Oshobi Esq. with K. T. Olawumi Esq.For Respondent