MULTICHOICE NIGERIA LIMITED v. HON JERRY AKPAN (2014)

MULTICHOICE NIGERIA LIMITED v. HON JERRY AKPAN

(2014)LCN/7078(CA)

In The Court of Appeal of Nigeria

On Monday, the 31st day of March, 2014

CA/C/179/2011

RATIO

JURISDICTION: COMPETENCE OF COURT

Jurisdiction is always a threshold issue. It is well settled law that the question of the jurisdiction of the court touches on the competence of the court to hear and determine a cause or matter before it. It is fundamental to the adjudication and determination of the cause before the court. The existence or absence of jurisdiction in the court goes to the root of the matter and sustains or nullifies the decision of the court in respect of the relevant subject matter.
See Godwin v Okwey (2010) 5-7 (PT 111) MJSC 206; Osakwe v FCE (2010) 3 (PT IV) MJSC 103; Obikoya V. Registrar of Companies (1975) 4 SC 31 at 34; Ezomo V. Oyakhire (1985) 1 NWLR (Pt.2) 195.

The law is also trite, as rightly submitted by the Appellant, that a court can be said to have jurisdiction and competence to hear a matter when:
(1) It is properly constituted as regards numbers and qualifications of the members of the bench such that 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 of the case which prevents the court from exercising its jurisdiction; and,
(3) The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See: Madukolu & Ors V. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587; (2001) 3 SCM 185.

Where a court lacks the necessary vires to entertain a suit, any step taken in relation to the matter is a nullity and void. Any proceedings conducted without jurisdiction amounts to a nullity, no matter how well it is conducted; and, without the necessary jurisdiction a Court cannot make any valid order. See: Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR. (Pt.135) 715. Aremo II. v Adekanye (2004) 11 MJSC 11; Madukolu vs. Nkemdilim (supra); Adesola vs. Abidoye (1999) 14 NWLR (PT 637) 28. PER ONYEKACHI A. OTISI, J.C.A.

DISTINCTION BETWEEN AN ORDER OF “STRIKING OUT” AND “DISMISSAL” OF AN ACTION IN COURT

In law, there is a distinction between an order of “striking out”, and “dismissal” of an action by a court. Striking out means disposing of an action or matter, temporarily, and not on the merit. Depending on the reason/s for such an order and the law, an action or matter may be re-filed or restored in another court or by the court.
An order of dismissal, ordinarily, means disposing of a matter or case on the merit of the issues heard and determined finally as between the parties before the court. The order is final and subject only to an appeal and cannot, in the absence of statutory provisions, be re-opened or reviewed by the court that made it. See Okeke v Modu (1969) (470) 121 at 127.
From the meaning of and effect of the two distinct orders, it is clear that where a case or matter is incompetent in law, the defect goes to the jurisdiction of the court before which it was brought and renders it incompetent to adjudicate over it. The incompetence of the case robs the court of the requisite competence/jurisdiction to entertain the case and without jurisdiction, the basis for the exercise of judicial authority and power to conduct proceedings in the case by way of determination on the merit, would be absent. In such situations, the only order that can properly be made is one striking out the case for want of jurisdiction. See Bronik Motors Ltd. v Wema Bank Ltd. (1983) 6 SC, 158; Ajomale v Yarduat (1991) 5 NWLR (191) 257, (91) 5 SC, 200.
As demonstrated in the lead judgment, proceedings conducted without the requisite jurisdiction, no matter how otherwise well and brilliantly conducted, are a fruitless, worthless and so an exercise in futility for being null and void ab initio. See Attorney-General, Lagos State v Dosunmu (1989) 3 NWLR (111) 552; Ike v Nzekwe (1975) 2 SC, 1; Ajomale v Yarduat (1991) 5 NWLR (191) 257. In the absence of jurisdiction, a court cannot determine a case on the merit for a proper order of dismissal of the action to be made to dispose of the case finally between the parties. PER MOHAMMED LAWAL GARBA, J.C.A

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

MULTICHOICE NIGERIA LTD Appellant(s)

AND

HON JERRY AKPAN
(Doing business under the name and style of Jerry Akpan & Co.) Respondent(s)

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Akwa Ibom State, Uyo Judicial Division, delivered on the 12th day of April, 2011 wherein judgment was entered in favour of the Respondent against the Appellant.

The facts leading to this appeal are as follows: On 28th January, 2009, the Appellant, defendant in the lower court, suspended the Respondent’s DSTV account No.38210900 used in his law firm and barred him from further viewing, although the expiry date of the subscription was on 31st January,2009. As a result of the disconnection of his account by the Appellant, the Respondent was forced to pay for another subscription on the same date, while the subsisting subscription was yet to expire. Aggrieved by the inconvenience and embarrassment caused him by the breach of the Appellant’s obligation under the subscription agreement to keep him fully and unceasingly subscribed, having fully paid his monthly subscription fee, the Appellant took out a Writ of Summons at the lower court, signed in the name of his law firm, Jerry Akpan & Co. on 15th March, 2010, and to which was attached the Statement of Claim and other processes; claiming against the Defendant (now Appellant) the sum of N50,000,000.00 (Fifty Million Naira) being general damages for injuries and loss suffered in breach of contract. At the conclusion of hearing, judgment was entered in favour of the Respondent against the Appellant. Dissatisfied by the said judgment, the Appellant brought this appeal.

In their Amended Notice and Grounds of Appeal filed on 9/4/2013, the Appellant raised three grounds of appeal and sought the following Reliefs:
1. That this Appeal be allowed.
2. That the judgment of the trial Court be set aside and dismiss the claims of the Respondent.

The Appellant’s Brief of Argument was settled by S.C. Ukairo, Esq. of Counsel, and filed on 14/10/2013 but deemed properly filed and served on 22/10/2013. J.K. Omang, Esq. of Counsel for the Respondent settled the Respondent’s Brief on 19/3/2014, but it was deemed properly filed and served on 25/3/2014. These Briefs were respectively adopted on 25/3/2014 by Mr. Ukairo for the Appellant and by the Respondent, Jery, Akpan, Esq., who appeared in person.

The Appellant raised 2 Issues for determination as follows:
1. Whether the Trial Court was clothed with the requisite jurisdiction to entertain the suit having regard to the fact that the same was not initiated with due process of law.
2. Whether the award of the sum of N100, 000.00 as damages is not excessive in the light of the evidence before the trial court.
I shall first consider Issue No 1.
The complaint of the Appellant is that the writ of summons initiating this action is inchoate. That the said writ of summons dated 15th day of March, 2010 by which this suit was commenced clearly shows that it was issued by Jerry Akpan & Co. See page 3 of the Record of Appeal. It is submitted that, while it is not in doubt that Jerry Akpan & Co. is a firm of legal practitioners and represented the Respondent as Claimant in this suit at the lower court, the said writ of summons had not been issued in compliance with the Rules and therefore was incompetent. Learned Counsel for the Appellant relied on the provisions of Order 6 of the Akwa Ibom High Court (Civil Procedure Rules) 2009, and Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation of Nigeria 2004.
It is submitted that the trial court was therefore bereft of jurisdiction to entertain it. Learned Counsel relied, inter alia, on Min.of Transport Adamawa State vs. Yakubu (2013) 1 MJSC (PT 11) 65 at 80; Kida vs. Ogunmola (2006) ALL FWLR (PT 327) 402 at 412.
While conceding that the appeal ought to succeed, the Respondent however raised a sole issue for determination:
Whether a striking out order is not the proper order to be made by this Honourable Court where it finds that the lower court lacks jurisdiction to determine the matter.
It is submitted that the writ of summons issued by the Respondent was indeed signed in the name of Jerry Akpan & Co., a law firm and not a legal practitioner; thereby rendering the writ of summons incompetent ab initio and thereby depriving the trial court of the jurisdiction to hear and determine the matter in the first instance; relying on SLB Consortium Ltd. vs. NNPC (2011) 9 NWLR (PT. 1252) 317); Okafor vs. Nweke (2007) 10 NWLR (PT.1043) 521. However, it is submitted that on the strength of the above judicial authorities, the relief seeking a dismissal of the Respondent’s claim before the lower court should not be granted. That the proper order an Appellate Court ought to make where a court lacks jurisdiction to entertain a matter is to strike out the matter and not to dismiss it; relying on Tsokwa Motors (Nig.) Ltd. vs. U.B.A Plc (2008) 2 NWLR (PT. 1071) 347; Obi vs. INEC (2007) 11 NWLR (PT. 1046) 565.

In the circumstance of this case where the trial court had no jurisdiction to entertain the matter as a result of the incompetence of the initiating process, the Writ of Summons, the only other step for the court to take is to strike out the action. I agree with the Respondent that striking out the action is the appropriate order to make in this circumstance. This is an order this Court is empowered to make by virtue of the provisions of Section 15 of the Court of Appeal Act, 2004. Accordingly, the Writ of Summons dated 15th day of March, 2010, as well as the proceedings in Suit No HU/55/2010, being a nullity, are hereby struck out.
In the circumstance, Issue No 2 raised by the Appellant is overtaken, as the damages of N100, 000.00 were awarded in the null proceedings.

This appeal therefore succeeds.

Parties are to bear their own costs.

MOHAMMED LAWAL GARBA, J.C.A.: With the concession by the Respondent that the initiating process filed by him in the High Court in the case against the Appellant, was fatally defective and therefore incompetent in law, this appeal is straightforward and determined completely by that fact.

Although the appeal is uncontested, my learned brother, Onyekachi A. Otisi, JCA, has dutifully, considered the crucial issue of the competence of the writ of summons filed in the High Court to initiate the case against the Appellant and resolved it in line with the law, as was required in cases such as Salau v Para-Koyi (2001) 13 NWLR (731) 602; John Holt Ventures Ltd. v Oputa (1996) 9 NWLR (470) 101; Ugboaja v Sowemimo (2008) 10 MJSC, 105.

The law is now beyond argument that an initiating process meant to invoke the jurisdiction of a court over a cause or matter required by law to be signed by either the parties or the legal practitioners representing them, is incompetent, if or when signed by or in the name of a Law Firm, which is not a legal practitioner under the Legal Practitioners Act. See Reg. Trustees of Apostolic Church v Akindele (1967) SCNLR, 205; NNB Plc v Denelag Ltd. (2005) 4 NWLR (916) 54; Oketode v Adewunmi (2010) 8 NWLR (1195) 63; Fatoki v Baruwa (2012) 14 NWLR (1319) 1; Okarika v Samuel (2013) 7 NWLR (1352) 19.
Since the writ of summons was signed in the name of the Law Firm of the Respondent, it was incurably incompetent thereby robbing the High Court of the requisite jurisdiction to adjudicate in or entertain the case initiated by it. The law is firmly established that where court lacks jurisdiction to entertain a case, the only proper and appropriate order it has the juridical authority and power to make in the case, in the absence of statutory provisions, is one striking out the case. See Otapo v Sunmonu (1987) 3 NWLR, 58; Okoye v N.C. & F.C. Ltd. (1991) 6 NWLR (199) 501; Tanmola v S & Mapping Geodata (1995) 6 NWLR (403) 617; NDIC v CBN (2002) 7 NWLR (706) 272 at 300; Fasakin Foods Ltd. v Shosanya (2006) 10 NWLR (987) 126 at 149.

The position of the law is the same even where the court found later that it has no jurisdiction to hear and determine the case after it had been concluded. The only order that can then be made is one striking out the case. See Tinubu v Khalil & Dibbo Transp. Ltd. (2000) 11 NWLR (677) 71. Among the exceptions to the position of the law enunciated and restated in the above authorities, are;
(1) Where the court finds that it lacks jurisdiction to entertain a case on the ground that it was statute barred, the proper order to make in the case, is one dismissing the case and not one of striking out. See Egbe v Adefarasin (No.2) (57) 1 NWLR (47) 1;
Eboigbe v NNPC (1994) 5 NWLR (347) 649; N.P.A. v Lotus Plastics Ltd. (2005) 19 NWLR (959) 158, and
(2) For the Federal High Court, where it finds that it lacks the jurisdiction to entertain a case and it is the High Court of a State or the Federal Capital Territory, Abuja that has jurisdiction to adjudicate over the case the proper order to make in the case is one for transfer of the case to the appropriate court with the requisite jurisdiction, and not one striking out the case on ground of want of jurisdiction on its part. See Section 22(2) of the Federal High Court Act, 2005; Mokelu v Fed. Comm. For Works & Housing (1976) NSC, 187 at 190; Paico (Press & Books) v CBN (2001) 3 NWLR (700) 347 at 373.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Onyekachi A. Otisi, JCA. I agree that a court lacks the necessary jurisdiction where an originating process is incompetent. An incompetent originating process denies a court of the necessary vires to adjudicate.

It is important for a party who perceives that a court has no jurisdiction to hear a cause or matter, to raise the issue at the earliest opportunity. Correspondingly, a court is expected to decide the issue of its jurisdiction to hear a case when a challenge is raised at the earliest opportunity. Nnonye Vs. Anyichie (2005) 2 NWLR pt 910 page 623.

More especially, the Respondent was magnanimous to throw in the towel, accepting that indeed, his originating process was not signed. For this and the more robust reasoning and conclusion in the lead judgment, I also allow this appeal. I abide by all the orders contained therein.

Appearances

S.C. Ukairo, Esq.,For Appellant

AND

Jerry Akpan, Esq.,For Respondent