MR. MUYIWA ODEJAYI & ANOR v. HENLEY INDUSTRIES LIMITED (2013)

MR. MUYIWA ODEJAYI & ANOR v. HENLEY INDUSTRIES LIMITED

(2013)LCN/6073(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of March, 2013

CA/L/150/2011

RATIO

COURT OF APPEAL: SECTION 24 OF THE COURT OF APPEAL ACT

Section 24 of the Court of Appeal Act provides:
(1) “Where a person desires to appeal to the Court of Appeal, he must give notice of appeal or notice of application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provisions of subsection (2) of this section that is applicable to the case.
(2) The periods for giving notice of appeal or notice of application for leave to appeal are –
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;…”
In Autu Import v Adebayo (supra) cited by Cross Respondent’s Counsel Igu J.S.C’s observed at page 578:
“I think I ought to state that it cannot be over emphasized that appeals generally are creations of statute and failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and proper before the court will deprive such appellate court of jurisdiction to entertain the appeal.PER CHINWE EUGENIA IYIZOBA, J.C.A.

APPEAL: FAILURE TO FILE AN APPEAL WITHIN THE STATUTORY PERIOD AND OBTAIN EXTENSION OF TIME WITHIN WHICH TO APPEAL WILL AFFECT JURISDICTION

APPEAL: INTERLOCUTORY APPEAL: EFFECT OF IT BEING FILED OUTSIDE TIME AND WITHOUT THE LEAVE OF THE COURT OF APPEAL
“Where an appeal against an interlocutory decision is filed outside the stipulated time without the leave of court the appeal will be struck out for being incompetent. In the instant case, the appellants’ appeal which was filed without leave more than 14 days after the order striking out the suit was made was out of time and therefore incompetent.”
The court of appeal in Ejiogu v Irona (supra) observed that:
“…a notice of appeal filed outside the period of time prescribed by the relevant statutory provisions and in the absence of a valid order enlarging such time first sought and obtained is no notice of appeal at all. This is because for being filed in contravention or violation of the law, the law does not recognize its existence at all for the purpose of judicial proceedings. The physical act of filing such notice or its presence in the record of the court is of no legal consequence whatsoever since in the eyes of the law, it does not exist.”PER CHINWE EUGENIA IYIZOBA, J.C.A.

A PROCESS SIGNED BY A LAW FIRM IS INCOMPETENT AND NULL AND VOID

It is now a well settled principle of law that a process signed by a law firm is incompetent and incurably defective, null and void. See Okafor v. Nweke (supra); Oketade v. Adewunmi (supra); N.N.B. Plc. v. Denclag Ltd (supra); Ashco Nig. v. Ward & Green (2010) NWLR (Pt.1181) 302; Mohammed v. M. E. Oc Ltd (2010) 2 NWLR (Pt.1179) 473. The court lacks the competence to adjudicate on such incompetent process and question of amendment of the process cannot arise.PER CHINWE EUGENIA IYIZOBA, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

1. MR. MUYIWA ODEJAYI
2. FIRST BANK OF NIGERIA PLC Appellant(s)

AND

HENLEY INDUSTRIES LTD Respondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): The Respondent/cross-appellant (as claimant) took out a writ of summons at the High court of Lagos State against the Appellants/Cross-Respondents (as defendants). The claim as endorsed in the writ and statement of claim was for declarations and mandatory injunction restraining the defendants from selling or taking over for purposes of sale the claimant’s assets situate at its factory premises until there is a court order to do so. Pleadings were duly filed and exchanged. The matter was set down for pre-trial conference during which several applications were made by the parties. Subsequently, after four years of being in court, the defendants, by motion on notice dated 11th day of June 2010 raised an objection to the jurisdiction of the Court on the ground that the writ of summons dated 2/2/06 signed by ISAAC M. BORO & CO is incompetent and incurably defective. The claimant in vehement opposition to the motion filed a written address. The learned trial judge, Pedro J. after hearing the parties delivered her ruling on 21/12/10 dismissing the objection. The defendants being dissatisfied with the decision filed a notice of appeal on 4/1/11 containing two grounds of appeal. The claimant being also dissatisfied with the reasons given by the learned trial judge for her decision, on receipt of the notice of appeal by the defendants/appellants also filed a cross appeal against the ruling. The notice of Cross Appeal dated 18/1/11 also raised two grounds of appeal.
As is customary in this court, the parties filed and exchanged briefs of argument. The appellants’ brief of argument is dated and filed on 4/3/11. The Respondent/cross-appellant’s brief of argument is dated and filed on 6/4/11. The cross-Respondents’ brief of argument and their reply brief are both dated and filed on 21/4/11.
The appeal came up for hearing on the 25th day of February 2013. Learned counsel for the Appellant/cross-Respondent informed the court that they filed a notice of preliminary objection to the cross-Appellants brief of argument and that the objection was argued in their brief. The parties thereafter duly adopted and relied on their respective briefs of argument.
In view of the preliminary objection to the Cross-appeal and the observation of Onnoghen JSC in Adekoye v. N.S.P.M.C. Ltd (2009) 5 NWLR (Pt.1134) 322 @ 338 that although it is the normal practice when there is a main appeal and a cross-appeal to resolve the issues raised in the main appeal before going on to those of the cross-appeal, where the issue raised in the cross-appeal touches on jurisdiction, it is better to deal with it first; I shall take the cross-appeal before the main appeal.
CROSS-APPEAL
The cross-Appellant in his notice of cross-appeal dated 18/1/11 at page 42-45 of the record of appeal raised two grounds of appeal out of which he formulated the following sole issue:
“Having regard to the fact that the name and signature of Isaac M. Boro Esq,, the solicitor of the Respondent who issued the writ of summons was clearly endorsed on the writ of summons, whether the learned trial Judge was right in ordering the amendment of the writ of summons (grounds one and two of the notice of cross-appeal)”
CROSS-APPELTANT’S ARGUMENTS:
Learned counsel for the cross Appellant in her brief of argument submitted that the relevant provisions which the lower court ought to consider in reaching a decision on the competence of the writ of summons as to the content and form of the writ are order 3 Rule 3 of the High court of Lagos state (civil procedure) Rules 2004 which provides:
“Except in the cases in which any different forms are provided in these Rules, the writ of summons shall be in Form 1 with such modifications or variations as circumstances may require.”
Counsel argued that the writ of summons which is made pursuant to Order 3 Rule 3 made no provisions at all for the signature of the legal practitioner who issued the writ that by the provisions of the Form, the only signature needed is that of the Registrar. Counsel argued that the writ of summons in the instant case satisfied the requirements of the law i.e. order 3 Rule 3 and Form 1. Counsel Submitted that the lower court was wrong to have ordered an amendment of the writ of summons as there was no legal reason for the order there being no irregularity on the writ that requires any amendment. Counsel urged the court to hold that the writ of summons is regular, valid and competent.
CROSS-RESPONDENTS, ARGUMENTS:
In his cross-Respondent brief, learned counsel challenged the competence of the cross appeal on the premise that:
“This Honourable Court lacks the jurisdiction to entertain the Respondent’s Cross-appeal in that the Cross-Appeal is wholly incompetent having been filed outside the period stipulated in section 24(2) of the Court of appeal Act Cap 36 Laws of the Federation 2004”.
Counsel submitted that by virtue of section 24(2) of the court of Appeal Act cap 36 Laws of the Federation 2004 the period for the giving of notice of appeal or notice of application for leave to appeal in a civil case or matter is fourteen days where the appeal is against an interlocutory decision. Counsel submitted that the ruling of the trial court delivered on the 21st day of December 2010 was an interlocutory decision. The Notice of Cross-Appeal filed by the Cross-Appellant on the 20th day of January 2011 against the interlocutory decision of the trial court was not filed within the period stipulated in Section 24(2) of the Act. Counsel relying on the cases of Auto Import Export v. Adebayo (2002) 18 NWLR (Pt.799) 554 @ 578; Alor v. Ngene (2007) 17 NWLR (Pt.1062) 163 @ 177; Ejiogu v. Irona (2009) 4 NWLR (Pt. 1132) 513 @ 569; and Yusuf v. Adewuvi Brothers (1991) 7 NWLR (Pt.319) 862 urged the Court to strike out the Cross-Appellant’s cross appeal as incompetent.
In the event that the court overrules the preliminary objection, the Cross-Respondent identified two issues for determination:
1. Whether the learned trial judge was right when it held that the writ of summons dated 2nd February 2006 which was signed by the firm of Isaac M. Boro & Co. was defective and in total violation of Order 6 Rule 2(3) of the High court of Lagos State (Civil procedure) Rules 2004 (Ground 1 of the Notice of Cross-Appeal)
2. Whether the learned trial Judge was right when he made an order directing the Cross Appellant to amend the writ of Summons (Grounds 2 of the Notice of Cross Appeal)
Learned counsel in his arguments on issue 1 submitted that order 6 Rule 2(3) of the High court of Lagos state (Civil Procedure) Rules 2004 provides that the writ of summons shall be signed by the Legal Practitioner or by the claimant and that the trial court gave a correct interpretation of the Rule when he made the finding that the writ signed by Isaac M. Boro & Co was not signed by the Claimant or its Legal Practitioners. Counsel submitted that the contention of learned counsel for the Cross Appellant that by the requirement of Form 1 the signature of the Legal Practitioner was not necessary is preposterous. Counsel relied on the cases of Ajuta 11 v. Ngene (2002) 1 NWLR (Pt.748) 278 @ 300, Ekpan v Uyo (1986) 3 NWLR (Pt. 26) 63 @ 76. Dada v Dosunmu (2006) 128 NWLR (Pt. 1010) 134 @ 166.
On issue 2, learned counsel submitted that the trial judge having found that the writ of summons dated 2/2/06 was signed by a law firm in total violation of order 6 Rule 2(3) of High court of Lagos state (civil procedure) Rules 2004, his lordship ought to have struck out the suit for being incompetent and that he was in grave error to have ordered the amendment of the writ of summons. Learned counsel called on the court to follow the decision of the Supreme Court in Okafor v Nweke (supra) and other similar decisions of the apex court to the effect that the writ of summons signed by Isaac M. Boro & co, a firm of legal practitioners is incompetent, incurably defective and ought to be struck out.
The cross-Appellant did not file any reply to the preliminary objection or submissions of the cross-Respondents but during the hearing, counsel urged the Court to dismiss the preliminary objection.
RESOLUTION:
Section 24 of the Court of Appeal Act provides:
(1) “Where a person desires to appeal to the Court of Appeal, he must give notice of appeal or notice of application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provisions of subsection (2) of this section that is applicable to the case.
(2) The periods for giving notice of appeal or notice of application for leave to appeal are –
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;…”
In Autu Import v Adebayo (supra) cited by Cross Respondent’s Counsel Igu J.S.C’s observed at page 578:
“I think I ought to state that it cannot be over emphasized that appeals generally are creations of statute and failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and proper before the court will deprive such appellate court of jurisdiction to entertain the appeal.

In particular, failure to file an appeal within the statutory period of time prescribed by law without obtaining an extension of time within which to appeal in accordance with the provisions of the Rules or to comply with the statutory requirements which are conditions precedent to the filing of a valid appeal constitutes an incurable defect that must deprive the appellate court of jurisdiction to entertain the appeal….”
See also the view of Kalgo JSC in Alor v. Ngene (supra) @ page 177
“Where an appeal against an interlocutory decision is filed outside the stipulated time without the leave of court the appeal will be struck out for being incompetent. In the instant case, the appellants’ appeal which was filed without leave more than 14 days after the order striking out the suit was made was out of time and therefore incompetent.”
The court of appeal in Ejiogu v Irona (supra) observed that:
“…a notice of appeal filed outside the period of time prescribed by the relevant statutory provisions and in the absence of a valid order enlarging such time first sought and obtained is no notice of appeal at all. This is because for being filed in contravention or violation of the law, the law does not recognize its existence at all for the purpose of judicial proceedings. The physical act of filing such notice or its presence in the record of the court is of no legal consequence whatsoever since in the eyes of the law, it does not exist.”
I think the law is clear enough. The ruling of the trial Judge was delivered on 21/12/10 and is unarguably an interlocutory decision. The Cross-Appellant’s notice of cross-appeal is dated 18/1/11 and was filed on 2011.The notice was filed 30 days after the ruling was delivered and in clear violation of Section 24 (2) (a) of the court of Appeal Act which required the notice to be filed within 14 days. There is no evidence in the records that the cross-Appellant filed an application for extension of time within which to appeal. The cross-Appellant apparently knew he did not comply with the law, and consequently had nothing to urge the court in reply. In the circumstances the preliminary objection succeeds and is hereby upheld. I hold that this court lack the jurisdiction to entertain the cross-appeal, the notice of cross-appeal having been filed in contravention of Section 24(2) (a) of the court of appeal Act. The cross-appeal is incompetent. It is hereby struck out.
MAIN APPEAL
Out of his two grounds of appeal, the appellant distilled a sole issue for determination viz:
“Whether the learned trial Judge was right in dismissing the Appellants’ application dated the 11th day of June 2010 having held that the writ of summons dated 2nd February 2006 was not signed by the Claimant or its Legal Practitioner but by the firm of Isaac M. Boro & Co.”
The Respondent in the main appeal also distilled a sole issue from the two grounds of appeal viz:
“Having regard to the fact that the name of Isaac M. Boro Esq., the solicitor to the Respondent who issued the writ of summons was clearly endorsed in the writ of summons, whether the Learned Trial judge was not right in dismissing the Appellants’ application to strike out the suit on the sole ground that the said writ of summons was not signed by a legal practitioner. Grounds one and two of the notice of appeal.”
APPELLANTS ARGUMENTS:
Learned Counsel for the Appellants Omo-Elo Jomaru Akokaike Esq., in his brief referred to the relief prayed for in the motion on notice, order 6 Rule 2(3) of the High Court of Lagos State (Civil Procedure) Rules 2004, parts of the ruling of the learned trial judge and submitted that the trial Judge having rightly held that the writ of summons was signed by Isaac M. Boro & Co and that same is in total violation of order 6 Rule 2 (3) of the High Court of Lagos state (Civil Procedure) Rules 2004 ought to have struck out the suit. Learned counsel submitted that there is a plethora of judicial authorities to the effect that a process signed by a Law Firm is incompetent and incurably defective. It followed that by the doctrine of stare decisis, the learned trial judge ought to have followed the law as stated in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521. Learned counsel also referred to the supreme court Judgments in Oketade v. Adewunmi (2010) 8 NWLR (Pt.1195) 63; N.N.B. Plc v. Denclag Ltd (2005) 4 NWLR (Pt.916) 549 @ 573 and submitted that the learned trial judge fell into grave error when he held that the signing of the writ by a law firm was a mere irregularity as to form and on grounds of substantial justice between the parties ordered the respondent to take necessary steps to amend its originating process. Counsel relying on N.N.B PLC v. Denclag Ltd (supra) submitted that it is trite law that an incompetent court process cannot be amended. One cannot put something on nothing and expect it to stand. Counsel argued that the order made by the trial judge cannot in any form or manner cure the defective writ of summons signed by Isaac M. Boro & Co which is ab initio, null and void. Counsel relied on ODdu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt.523) 1 @ 21. Learned Counsel finally relying on Abacha v. Fawehinmi (2000) 6 NWLR (Pt.660) 228 @ 317 submitted that by the time honoured doctrine of precedents the decision of the supreme court on the point is binding on all courts in Nigeria and must be followed. counsel urged us to determine the lone issue in favour of the Appellants and strike out the writ of summons signed by Isaac M. Boro & Co.
RESPONDENTS ARGUMENTS:
Learned counsel for the Respondent in the first part of her brief of argument covering pages 4 – 14 responded to the appellants’ arguments on the main appeal and also addressed the sole issue as formulated by her on the appellant’s two grounds of appeal. She went to great pains to convince us that learned counsel for the appellants had ‘deliberately misrepresented the cold, precise and lucid facts of the case’ by their averment in paragraph 4 of their affidavit in support of the application that:
“The writ of summons dated the 2nd day of February 2006 was not signed by the Claimant or its Legal Practitioner but by the firm of Isaac M. Boro & Co”
Learned Counsel contended that the name of the legal practitioner who issued the writ of summons, Isaac M. Boro Esq. was expressly stated on the writ. While conceding that Order 6 Rule 2(3) of the High Court (Civil Procedure) Rules, 2004 provides that every originating process shall be signed by a legal Practitioner or by a claimant where he sues in person; counsel argued that the provision of the Rules was met and ably satisfied in the case. She hinged her argument on her contention that Order 6 Rule 2(3) of the Rules of the lower court is a general provision in relation to originating processes while Order 3 Rule 3 made specific provisions in relation to the contents and form of a writ of summons. Order 3 rule 3 provides:
“Except in the cases in which any different forms are provided in these Rules, the writ of summons shall be in Form 1 with such modifications or variations as circumstances may require”
Learned Counsel argued that Form 1 (writ of summons) made pursuant to Order 3 Rule 3 of the Rules made no provision at all for the signature of the Legal Practitioner who issues same but only provided for the signature of the Registrar of the Court. Counsel submitted that it is only the signature of the Registrar of the court that is required and not that of the Legal Practitioner. In the light of the foregoing, counsel submitted that all the cases cited by the appellant do not have any bearing to the material facts of this case. In all of those cases, counsel argued, the relevant processes were not signed by a legal practitioner known to law and the name of the legal practitioner that issued the processes was not stated in any of the processes unlike in the present case where the writ of summons bore the name of the legal practitioner and the statement of claim and other processes were signed by the legal practitioner. Counsel urged us not to apply the principle decided in the cases of Okafor v. Nweke, Oketade v. Adewunmi and N.N.B. Plc v Denclag Ltd as the facts are not apposite and the doctrine of stare decisis inapplicable.
APPELLANTS’ REPLY:
Learned Counsel citing the case of Okoye v N. C. & F Co. LH (1991) 6 NWLR (Pt.199) 501 @ 532-533 submitted that the sole issue for determination formulated by the Respondent in his brief of argument was incompetent and should be struck out as the issue did not arise from the grounds of appeal in the notice of appeal filed by the appellants. Counsel submitted that the issue whether the name of Isaac M. Boro Esq. was endorsed on the writ of summons as canvassed by the Respondent is not distilled from any of the two Grounds of Appeal in the Notice of Appeal filed by the Appellants. Counsel further submitted that the findings of the trial Judge were not concerned with the sole issue raised by the Respondent. Learned Counsel relying on the cases of Ndukwe v State (2009) 7 NWLR (Pt.1739) 43 @ 74 and African Petroleum Ltd v. Owodunni (1991) 8 NWLR (Pt.210) 391 @ 423 submitted that the position of the law is that where an issue formulated by a party to an appeal is not covered by any ground of appeal the issue must be struck out for want of competence. Counsel urged us to strike out the issue formulated by the respondent and the arguments canvassed on the incompetent issue.
RESOLUTION:
It is apt in the circumstances to consider first the objection of the appellant to the issue formulated by the Respondent. It is indeed trite law that issues formulated by the parties in an appeal must be based on the grounds of appeal. In this main appeal, the issue formulated by the Respondent must arise from the grounds of appeal filed by the appellant in his notice of appeal. In Okoye v. N.C. & F. Co Ltd (supra) referred to by learned counsel for the appellant, Akpata J.S.C. observed:
“This court has consistently said in an unbroken stream of authorities that the issues for determination in an appeal must arise from and be related to the grounds of appeal filed…each party to an appeal, the appellant or the respondent, is entitled to formulate what are in his opinion the issues for determination, but the issues must arise from and relate to the grounds of appeal filed.”
It is necessary therefore to consider the grounds of appeal filed by the appellant in order to ascertain whether the respondent’s sole issue for determination arose there from. The grounds of appeal without their particulars in the Appellants’ notice of appeal dated 2/1/11 and filed on 17/2/11 at pages 38-41 of the record of appeal are as follows:
GROUND ONE
The learned trial judge erred in law when he dismissed the Appellant’s Motion on Notice dated the 11th day of June 2010 on the premise that the Writ of Summons dated the 2nd day of February 2006 signed by ISAAC M. BORO & CO is a mere irregularity which can be regularized by the Respondent and same is competent.
GROUND TWO
The learned trial Judge erred in law when he made an order directing the Respondent to amend the Writ of Summons dated the 2nd day of February 2006 signed by ISAAC M. BORO & CO.
Looking at these grounds of appeal, can it be said that the Respondent’s sole issue is not based on, related to or arise from them? I shall once more set out the respondent’s sole issue:
“Having regard to the fact that the name of Isaac M. Boro Esq., the solicitor to the Respondent who issued the Writ of Summons was clearly endorsed in the Writ of Summons, whether the Learned Trial judge was not right in dismissing the Appellants’ application to strike out the suit on the sole ground that the said writ of summons was not signed by a legal practitioner, Grounds one and two of the notice of appeal.”
It is my considered view that the issue is related to and arose from the grounds of appeal. The appellant by his ground of appeal is saying that the trial judge erred when he dismissed his motion on the basis that the writ of summon signed by Isaac M. Boro & Co is a mere irregularity. The Respondent on the other hand, by his sole issue is saying that the trial judge did not err in dismissing the appellant’s application because even though the writ was not signed by a legal practitioner, the name of the legal practitioner who issued the writ, Isaac M. Boro Esq. was endorsed in the writ of summons. That is also the crux of the Respondent’s contention in his reply to the appellant’s argument at the lower court. In his ruling at page 33 of the record the learned trial judge observed:
“the contention of the respondent is that the claimant has complied with the rules such as to make the writ duly issued and competent before this court.”
The respondent’s, sole issue is consequently not, in my view outside the contemplation of the grounds of appeal.
Now to the appeal proper, both counsel and the learned trial Judge are in agreement that a law firm is not a legal practitioner within the definition of section 24 of the Legal practitioners Act Cap L11, Laws of the Federation 2004. Indeed the learned judge in his ruling at page 35 of the record held that the writ of summons signed by Isaac M. Boro & Co is clearly irregular and in total violation of Order 6 Rule 2(3) of the High Court of Lagos State (Civil Procedure) Rules 2004. The rule provides:
“Each copy shall be signed by the Legal Practitioner or by a Claimant where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.”
This rule is specific and clear that the writ shall be signed by the legal practitioner or by the claimant where he sues in person. The writ of summons shown at page 2 of the record was signed by Isaac M. Boro & Co. The Registrar by endorsing the name of Isaac M. Boro Esq as the legal Practitioner who issued the writ was merely complying with the provision in the second part of Order 6 Rule 2(3) as set out above.
Order 3 rule 3 of the High court Lagos Rules provides:
“Except in the cases, in which any different forms are provided in these Rules, the writ of summons shall be in Form 1 with such modifications or variations as circumstances may require.”
The contention of learned counsel for the Respondent is that the Form 1 referred to above has no provision for the signature of the legal practitioner and that his signature was therefore un-necessary. This contention is with all due respect totally misconceived, The clear provision of the rule is that the writ of summons shall be in Form 1 with such modifications or variations as circumstances may require (see underlining above). One of such modification is provided for in Order 6 Rule 2(3) of the High Court of Lagos State (Civil Procedure) Rules 2004 that the writ shall be signed by the legal practitioner. It is customary for the legal practitioner to append his signature on the writ in compliance with that rule. But instead of the legal practitioner signing the writ, his law firm Isaac M. Boro & Co signed the writ. The contention of Respondent’s counsel that this writ of summons signed by a law firm satisfies the requirement of the Rules because the registrar endorsed the name of the legal practitioner on the form is a complete misconception of the law. Learned counsel spent a great deal of time and energy canvassing an issue that is clearly untenable. This case comes squarely within the principle laid down by the Supreme Court in Okafor v. Nweke (supra); Oketade v. Adewunmi (supra); N.N.B. Plc. Denclag (supra), all properly referred to by learned counsel for the Respondent with relevant quotations. It appears to me however that learned counsel by quoting gleefully from these decisions is under the misconceived impression that these cases are all concerned with notices of appeal, briefs of argument and motions unlike the present case which concerns the writ of summons and when especially, the legal practitioner who issued the writ is identifiable on the face of the writ and he duly signed other processes filed along with the writ. The principle of law here is immutable and it is this: where the law requires a court process to be signed by a legal practitioner, signature by a law firm renders the process fundamentally defective. 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, irrespective of the stage of the hearing at which the issue was taken up. It is a jurisdictional issue and can be taken up at any stage of the proceedings. With all due respect to learned counsel the facts of the cases of Okafor v. Nweke, Oketade v. Adewunmi and N. N. B. Plc v. Denclag Ltd are not distinguishable from this case. They are indeed on all fours. Once a process which is supposed to be signed by a legal practitioner is signed instead by his law firm, the process is defective. It is immaterial that the legal Practitioner’s name was endorsed in other parts of the process in order to show that he issued the writ or process. What the law requires is that the process be signed or executed by the legal practitioner. The name of the legal practitioner without his signature does not satisfy the requirement of the law. It is that signature that will stamp the document as emanating from the legal practitioner. Anyone can endorse or write the name of a legal practitioner on a process. It is his signature that gives the process the required authenticity, Okafor v. Nweke (supra) and all the other similar cases decided by the apex court are binding on all courts in Nigeria including this court.

For the sake of clarity, I will again re-state the law as very ably set out in the appellant brief. It is now a well settled principle of law that a process signed by a law firm is incompetent and incurably defective, null and void. See Okafor v. Nweke (supra); Oketade v. Adewunmi (supra); N.N.B. Plc. v. Denclag Ltd (supra); Ashco Nig. v. Ward & Green (2010) NWLR (Pt.1181) 302; Mohammed v. M. E. Oc Ltd (2010) 2 NWLR (Pt.1179) 473. The court lacks the competence to adjudicate on such incompetent process and question of amendment of the process cannot arise. The learned trial Judge therefore fell into grave error by holding that the claimant could be allowed to amend its originating process because issues had been joined and pre trial conference commenced and in order to do substantial justice. The learned trial Judge lost sight of the fact that an incompetent process cannot be amended. 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. On the issue of substantial justice, Tobi J.S.C. in Dada v Dosunmu [2006] 18 NWLR (pt.1010) observed:
“The role of the court is to apply the principles of substantial justice according to law. The principles cannot be applied outside the law or in contradiction of the law. A court of law will not be performing its role as an independent umpire if it bends backward to do justice to one of the parties, at the expense of the other party. Justice, that very expensive commodity in the judicial process should be evenly spread between the parties.
Where a rule of court has clearly and unambiguously provided for a particular act or situation, the courts have a duty to enforce the act or situation and here; the issue of doing substantial justice does not or should not arise. The party who failed to comply with the rule has himself to blame…”
The learned trial Judge having found that the writ of summons was not signed by the claimant or its legal practitioner but by a law firm had no business allowing an amendment on the grounds of substantial justice. He is by the doctrine of stare decisis bound to follow the decision of the Supreme Court in Okafor v Nweke and the very long line of authorities on the issue. The sole issue is determined in favour of the appellant.
As a matter of fact, I consider it necessary to mention in passing that even if the cross-appeal had been held competent, the cross-appeal would have failed woefully for all the reasons stated above.
In the final result, the appeal succeeds and is hereby allowed. The ruling of Pedro J. of the High Court of Lagos State delivered on 21/12/10 in suit No. LD/142/2006 is hereby set aside. In its place, the Appellant’s motion on notice dated 11/6/10 praying for an order striking out the suit for want of jurisdiction in that the writ of summons dated 2/2/06 signed by Isaac M. Boro & Co is incompetent and incurably defective due to non-compliance with order 6 Rule 2(3) of the High Court of Lagos State (Civil Procedure) Rules 2004 is granted as prayed with N25,000.00 costs in favour of the Appellants.

AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Iyizoba, JCA, and I agree with him that the appeal must be allowed, and the Ruling of the lower Court set aside. The situation in this case is not any different from that in Okafor V. Nweke (2007) 10 NWLR (Pt.1043) 521 SC, where the Supreme Court hammered the nail down with its decision that a law firm “cannot legally sign and/or file any process in the Courts”; and that any such process signed by a law firm is “incompetent in law”, which means that the process is not only defective but also incurably bad, and in a case like this one, robs the Court of the jurisdiction to entertain the suit. The importance of jurisdiction is why the law insists that it can be raised at any stage of a case, be it at the trial, on appeal to this Court of the Supreme Court; a fortiori the Court can raise it suo motu – see Petrojessica Ent. Ltd. & Anor v. Leventis Tech. Co. Ltd. (1992) NWLR (Pt.244) 675, where Belgore, JSC, further explained that –
“It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce – – it is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity”.
The Supreme Court has spoken, and every Court in Nigeria must fall in line.
In the circumstances, I do hereby allow the appeal, and I abide by the consequential orders in the lead judgment including the order as to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the thorough judgment pronounced by my learned brother, Iyizoba, J.C.A., and adopt the same as mine with these few words, by way of emphasis.
The application for a writ of summons was signed by the law firm of “Isaac M. Boro and Co” which rendered it incurably defective and struck at the root of the jurisdiction of the court below to entertain the action – see Abbas v. Tera (2013) 2 NWLR (pt.1338) 284 at 291-292, where Bulkachuwa, J.C.A. (now acting P.C.A.) held inter alia that-
“A writ of summons is the originating process and its competency gives the court seised of the matter, the necessary jurisdiction to look into the suit….
In the instant case, a writ of summons which should be signed by a legal practitioner was signed by a law firm, rendering the said writ incompetent. It is not initiated before the court by due process, the court in such a situation is robbed of the competence or jurisdiction to act upon it.”
See also Madukolu and ors v. Nkemdilim (1962) 2 SCNLR 314, W.A.E.C v. Akinkunmi (2003) 35 NSCQLR 222, Oketade v. Adewunmi (2010) 3 S.C. 140 at 146-147, S.L.B. Consortium Ltd v. NNPC (2011) 9 NWLR (pt.1252) 317, First Bank of Nigeria Plc and Anor. V. Alhaji Salmanu Maiwada, unreported appeal No.SC.204/2002 delivered on 25.5.2012 per the lead judgment of Fabiyi, which approved (with the concurrence of Musdapher, C.J.N., Mohammed, Chukwuma – Eneh, Adekeye, Peter – Odili and Ariwoola, JJ.S.C.) the decision in the case of Okafor v. Nweke (2007) 10 NWLR (pt.1043) 521.
It is for the reason given above and the more elaborate reasons contained in the judgment of my learned brother, Iyizoba, J.C.A., that I too see merit in the appeal and hereby allow it and abide by the consequential orders contained in the said lead judgment.

Appearances

Omo-Elo Jomaru Akokaike Esq. for the Appellants/Cross-RespondentsFor Appellant

AND

Dayo Ayoola-Johnson Esq. with Gabriel Uduafi Esq. for the Respondent/Cross-AppellantFor Respondent