MUSTAPHA & ORS v. ADENOPO & ORS
(2020)LCN/14711(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, November 13, 2020
CA/L/294M/2009
RATIO
JURISDICTION: FUNDAMENTAL NATURE OF THE ISSUE OF JURISDICTION
A Court’s jurisdiction is defined as “a Court’s power to decide a case or issue a decree” (Black’s Law Dictionary, 9th Edition, page 927). The issue of jurisdiction is fundamental to adjudication and it cannot be overemphasized to state and restate that fundamental principle of law. Being a threshold issue, the issue of jurisdiction must be resolved first and foremost before any other issue in order to avoid embarking on an exercise in futility, for without jurisdiction any proceeding or decision reached on a case is a total nullity. See Oriorio & Ors. Vs. Osain & Ors. (2012) 16 NWLR (pt. 1327) 560, Anyanwu Vs. Ogunewe & Ors. (2014) 1-2 SC (pt. II) 49 and Effiom Vs. Eteng (2018) LPELR-46130 (CA). PER ALIYU, J.C.A.
JURISDICTION: CONDITIONS TO BE SATISFIED IN ORDER FOR THE COURT TO ASSUME JURISDICTION ON A MATTER
It is also trite law that one of the conditions that must be satisfied in order for the Court to assume jurisdiction on a matter is that such matter comes before the Court by due process, that is, upon performance/fulfillment of all conditions precedent to the exercise of its jurisdiction on the matter. See Madukolu & Ors. Vs. Nkemdilim (1962) LPELR-24023 (SC). PER ALIYU, J.C.A.
PROCESSES: REQUIREMENT FOR A LEGAL PRACTITIONER TO SIGN THE ORIGINATING PROCESSES
It is required that a legal practitioner must sign the originating processes such as the writ of summons and statement of claim in order for them to be valid and competent and to activate the jurisdiction of the Court to look into the complaint contained therein. In the case of Atake Vs. Afejuku (1994) LPELR-585 (SC), Belgore, JSC (later CJN) held:
Who is a legal practitioner? He is that person that has been called to the Bar to practice as a Barrister and Solicitor of the Supreme Court of Nigeria as provided in Section 2(1), (2), (3) & (4) of the Legal Practitioners Act.
So, it is the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Cap. L11 Laws of the Federation of Nigeria 2004 that provides for who can validly sign a process of Court. It is only a person whose name is on the roll, having been called to the Bar that is entitled to practice as Barrister and Solicitor in Nigeria and who can act as such to sign originating Court’s processes for them to be competent. Thus, the signing of the Court’s processes becomes a matter of law, being statutorily required, and the validity of the originating processes has direct effect to the competence/jurisdiction of the Court to adjudicate on the dispute it is called upon to determine. Where any Court processes, including originating processes are not signed by a legal practitioner within the contemplation of the provisions of the Legal Practitioners Act referred to supra, the processes are void and the suit is incompetent, and the Court would have no jurisdiction to determine it. See Bukola Vs. Oshundahunsi & Ors. (supra), Octs Education Services Ltd & Anor. Vs. Padson Industries Ltd & Anor. (2012) LPELR-14069, Okafor Vs. Nweke (supra), Dan’asabe Vs. Babale (supra), KLM Royal Dutch Airlines & Anor. Vs. Taba & Ors. (2014) LPELR-239993 (CA). PER ALIYU, J.C.A.
PROCESSES: EFFECT OF SIGNING A PROCESS IN THE NAME OF A LAW FIRM
The signature of a law firm on the writ of summons and the statement of claim for certain make the processes void and incompetent, which means that the suit has not been placed before the lower Court by due process of law. As a consequence, the trial Court would have no jurisdiction/power to entertain the suit that is commenced by void originating processes ab initio. See Ogunseinde Vs. Societe General Bank Ltd (2018) 9 NWLR (pt. 1624) 230 (SC) and Alikor Vs. Ogwo (2019) 15 NWLR (pt. 1695) 331 (SC) and Yusuf Vs. Mobil Oil (Nig.) Plc (2020) 3 NWLR (pt. 1701) (SC). PER ALIYU, J.C.A.
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
- CHIEF FATAI ADEWALE MUSTAPHA 2. MR. MICHAEL GBADEBO ONAKOYA (FOR THEMSELVES AND ON BEHALF OF THE MEMBERS OF THE EWADE RULING HOUSE) 3. MR. OLU ADEBANJO 4. CHIEF OLADELE KADIRI (FOR THEMSELVES AND ON BEHALF OF THE MEMBERS OF THE ERELU RULING HOUSING) 5. MR. GALIBU SANNI 6. CHIEF OLUWOLE OKOYE (FOR THEMSELVES AND ON BEHALF OF THE MEMBERS OF THE SAMBA RULING HOUSE) 7. CHIEF SAFIRIYU BAKARE (HEAD OF OSIKADEWA RULING HOUSE) 8. ALHAJI CHIEF TAMIRIYU BELLO 9. VENERABLE M. O. ODUNLAMI (FOR THEMSELVES AND ON BEHALF OF THE MEMBERS OF THE OSIKEDEWA RULING HOUSE) APPELANT(S)
And
- CHIEF JOHNSON ADENOPO (FOR HIMSELF AND AS REPRESENTATIVE OF ERELU RULING HOUSE) 2. ABEBOSIPO FOLORUNSO ISMAILA 3. ALHAJI SIKIRU ADESADA (FOR THEMSELVES AND AS REPRESENTATIVES OF THE OSIKADEWA RULING HOUSE OF AROWOSHOGUN QUARTERS, IGBORE, EPE, LAGOS STATE) 4. THE ATTORNEY-GENERAL OF LAGOS STATE 5. LAGOS STATE GOVERNMENT 6. TRIBUNAL OF ENQUIRY INTO CHIEFTANCY MATTERS, LAGOS STATE 7. EPE LOCAL GOVERNMENT 8. OTUNBA A. I. ADEBAMAWO (HEAD OF EWADE RULING HOUSE) 9. CHIEF DAUDA KADIRI 10. CHIEF GBENRO OTUNNOWO (FOR THEMSELVES AND ON BEHALF OF MEMBERS OF THE EWADE RULING HOUSE) 11. MR. TABURALIYU SALAM HASSAN ADESADE (FOR HIMSELF AND ALSO REPRESENTATIVES OF ERELU HOUSE) (AMENDED PURSUANT TO THE ORDER OF THE COURT OF APPEAL ON THE 27TH DAY OF JUNE, 2016) RESPONDENT(S)
BALKISU BELLO ALIYU, J.C.A.: (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Lagos State, Ikorodu judicial division (trial Court) delivered on the 15th October 2008 by Hon. Justice H. A. O Abiru in respect of suit No; ID/1472/1992. The Respondents commenced the said suit as Claimants vide a writ of summons filed on the 18th June 1992 and a statement of claim filed on the 23rd February 1999, which were subsequently amended on the 5th January 2007. The Appellants were the Defendants against whom the suit was filed seeking declaratory reliefs. The originating processes are located in pages 1 to 25 of the record of appeal.
The case of the Respondents before the trial Court was that they are all members of the ADESADA and OSIKADEWA Ruling Houses and both ruling houses are in respect of the OTUNBA ORIJERU OF IGBOYE CHIFTAINCY STOOL and that they commenced the suit for themselves and on behalf of their respective ruling houses. It was their claim that the OSIFADERIN and OSIKADEWA lines of OSIFADERIN family constitute the only two traditionally recognized ruling houses known as ERELU RULING HOUSE and OSIKADEWA
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RULING HOUSE entitled to present and nominate candidates to fill the stool of OTUNBA ORIJERU OF IGBOYE which tradition and practice is immemorial and that no other family in Igboye or elsewhere has ever produced any OTUNBA ORIJERU of Igboya. The Respondents claimed that by custom and tradition relating to the appointment of an Otunba Orijeru, it is now the turn of the Osikadewa Ruling House to nominate and present a candidate to ascent the throne of Otunba Orijeru of Igboye.
The Respondents asserted that owing to some sponsored and unfounded claims by certain people to the stool of the Otunba Orijeru of Igboye, a commission of enquiry headed by the Hon. Justice E. A. Hotonu was established by the Lagos State Government to inquire into the validity of the declarations made by the traditional chieftaincy families and other identities of the Ruling houses in the Otunba Orijeru of Igboye chieftaincy. Unfortunately, the findings of the said commission of inquiry were inconclusive, owing to what was seen as a missing link, which the commission failed to identify. Consequently, the Lagos State Government again constituted another commission of inquiry headed by
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Reverend J. I. Akindele, the then Administrator of Epe Local Government Area, with terms of reference contained in the Government White paper.
The Respondents claimed that the Reverend Akindele’s commission of Inquiry failed to avail them adequate opportunity to be heard in presenting their case especially as relating to the Chieftaincy Ruling Houses of Igboye. Specifically, they asserted that the OSIKADEWA ruling house of Arowosegunde Quarters was never heard nor given the opportunity to be heard in presenting their case relating to the chieftaincy ruling houses of Igboye. Instead the commission of inquiry reported that it relied on the evidence adduced by Chief A. B. Adesada before the earlier Hotonu Tribunal of Inquiry set to reconcile the statements of other factions. They claimed that the Reverend Akindele’s panel went ahead to recommend to the Government for approval four Ruling houses namely, ERELU, EWADA, SHAMBA AND OSIKADEWA ruling houses. The Respondents/Claimants pleaded that no ruling house was ever known as EWADE or SHAMBA at Igboye in relation to the Otunba Orijeru of Igboye, but that the only ruling houses traditionally
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recognized by the aged history and tradition in regard to the Otunba Orijeru of Igboye chieftaincy are the ERELU and OSIKADEWA ruling houses. Still the Lagos State Government accepted the recommendation of the panel of inquiry and issued and published a white paper approving the recommendation of the panel. That the then 7th Defendant (Mr. Michael Gbadebo Onakoya) who is not a member of any of the two ruling houses nor was he appointed and/or installed by any legally constituted authority has been parading himself as the new Otunba Orijeru of Igboye, otherwise known as Orijeru of Igboye, Epe. Upon these facts, the Respondents prayed the trial Court for the following declaratory and injunctive reliefs:
i. A DECLARATION: That the report dated the 19th of December, 1985 made by the panel of inquiry headed by REV. J. I. AKINDELE, Sole Administrator Epe Local Government on the dispute over OTUNBA ORIJERU of Igboye CHIEFTAINCY is null and void as the Claimants were not given the opportunity of hearing in the proceedings leading thereto.
ii. DECLARATION: That the Government’s view on the report of inquiry mentioned in paragraph 1 hereto as contained
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in the white paper released by the 1st Defendant in January, 1989 in respect of the OTUNBA ORIJERU of Igboye chieftaincy is null and void and of no effect whatsoever.
iii. DECLARATION: That the declaration made by the Epe Local Government on the 27th February 1990 regulating the selection of candidates to fill the stool of OTUNBA ORIJERU of Igboye, Epe and allegedly approved the 2nd Defendant on the 18th March 1991 is null and void as the same violates the right of the Claimants to be heard, a condition precedent.
iv. DECLARATION: That the 7th Defendant has not been appointed and/or installed as OTUNBA ORIJERU of Igboye by any constituted authority and as such he is not the Orijeru of Igboye.
v. PERPETUAL INJUNTION: Restraining the defendants by themselves their agents, servants and/or privies from implementing or giving effect to the views contained in the said white paper or appointing or recognizing any candidate pursuant thereto.
vi. PERPETUAL INJUNCTION: Restraining the defendants by themselves, their agents, servants and/or privies from implementing, enforcing, giving effect to the Declaration mentioned in paragraph 3 thereof.
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vii. PERPETUAL INJUNCTION: Restraining the defendants from considering, delivering upon or giving effect to enforcing the aforesaid Government white paper and/or the Defendants regulating the selection of candidates into the stool of Orijeru of Igboye, Epe.
viii. AN ORDER of perpetual injunction restraining the 7th Defendant from parading himself or being installed as the Otunba Orijeru of Igboye or Orijeru of Igboye and/or doing any act or anything whatsoever in that capacity.
The Appellants as defendants filed statements of defence in which they admitted that indeed the Claimants belonged to the Erelu and Osikadewa ruling houses relating to the Otunba Orijeru chieftaincy recognized under the Obas and Cheifs Law of Lagos State. They also admitted that the Lagos State Government found a missing link in the report of the Justice Hotonu’s Commission of inquiry and the Government set up the Rev. Akindele panel of inquiry which had three public sittings on the 27th and 28th November and 4th December of 1985 and heard evidence from all the heads and principal members of the families. They asserted that Chief A. B. Adesada testified for the claimants
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before the panel and at the end of its deliberations, it submitted its report dated 18th December 1985 which the Government accepted, approved and issued a white paper and a Chieftaincy Declaration encompassing the recommendations of the panel. Consequently, the 7th Defendant was nominated as Otunba Orijeru of Igboye now known as Orijeru of Igboye by the Ewede Ruling House and installed pursuant to the chieftaincy declaration. His nomination was approved by the Lagos State Government by its letter dated 26th February 2003 and he has since been performing the functions of the office. The Appellants also raised the defence of statute of limitation and pleaded that the suit is statute barred because the cause of action arose in 1985 while the suit was filed in 1992. They also raised a preliminary objection challenging the locus standi of the Respondents/claimants to institute the suit on the ground that they are not the heads of the families they represented in filing the suit.
During the trial, the Respondents called two witnesses and the Appellants called four witnesses in support of their respective pleadings. Learned Counsel for the parties also filed
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written final addresses and the case was adjourned for judgment. in the Court’s judgment, the learned trial Judge dismissed the objections of the Appellants and granted all the reliefs sought by the Respondents against the Appellants.
The Appellants were aggrieved with the judgment of the trial Court and filed notice of appeal against it, which was later amended and filed on the 18th July 2016. They relied on six grounds of appeal contained therein from which they distilled the following six issues for determination in the Appellants’ brief of argument filed on the 24th March 2017:
i. Whether the lower Court possessed the requisite jurisdiction to hear and determine the Claimants’ action commenced vide the writ of summons and statement of claim dated 18th June 1992 and 22nd of February 1995 respectively?
ii. Whether upon the materials before the Court, the Claimants possessed the requisite locus standi to initiate, maintain and prosecute the action in the lower Court in a representative capacity?
iii. Whether upon the pleadings and evidence before the Court, the Court was correct in its finding that the 1st
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Defendant had abandoned its defence of limitation of action?
iv. Whether the lower Court was correct in law to have nullified and voided Exhibits D1, D2 and D3 upon the basis of an action commenced on a writ of summons?
v. Whether the lower Court rightly found that the Defendants had admitted the Claimants’ pleadings on the basis of a “general traverse”?
vi. Whether the lower Court, upon the evidence before it was correct in holding that the proceedings of the Rev. J. I. Akindele Panel breached the Claimants’ right to fair hearing by allegedly not affording the Osikadewa Ruling House an opportunity to present its case?
None of the Respondents deemed it fit to file a brief of argument in response to the appeal and on the 22nd January 2020, this Court ordered the appeal to be set for hearing on the Appellants’ brief alone and all the Respondents were duly notified on this order. The appeal was therefore unopposed and heard on the 24th September 2020, and the Appellants’ learned Counsel T. J. Odesola Esq. adopted the Appellants’ brief of argument and prayed that the appeal be allowed and the judgment
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of the trial Court be set aside.
The consequence of the Respondents’ failure to file a brief of argument is that they are deemed in law to have conceded to the issues raised for determination and the argument canvassed in support thereof by the Appellants. Nevertheless, it is not a home run for the Appellants because the Court must determine the merit or demerit of their case regardless. They have to succeed or fail on the strength of their own case. See Skye Bank & Anor. Vs. Akinpelu (2010) LPELR-3073 (SC) and Sheidu Vs. State (2010) LPELR-3592 (CA). I will therefore proceed to consider the Appellants’ submissions and in determining the appeal, I shall utilize the issues for determination proposed by the Appellants as my guide.
APPELLANTS’ SUBMISSIONS
In arguing issue one distilled from ground 6 of appeal, the learned Appellants’ counsel Temitope J. Odesola Esq. submitted that the lower Court lacked jurisdiction to determine the suit commenced by a writ of summons filed on the 18th June 1992 and a statement of claim filed on the 22nd February 1995 because these originating processes were not signed by a legal
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practitioner entitled to practice as a barrister and solicitor by virtue of having his name in the roll as provided by Sections 2(1) and 24 of the Legal Practitioners Act. He argued that “Bisi Ade-Ademuwagun & Co.” that signed the said originating processes is not a person whose name is on the role of legal practitioners prescribed by the provisions of the Act. He submitted that this is a fundamental error, which cannot be cured by the amendment of the originating processes made on the 5th January 2007. Learned counsel placed reliance for support on the cases of SLB CONSORTIUM LTD VS. NNPC (2011) 9 NWLR (pt. 1252) 332, OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1041) 521, DAN’ASABE VS. BABALE (2013) LPELR-22360 (CA) and NNB PLC VS. DENCLAG LTD (2005) 4 NWLR (PT. 916) 549, and a host of others to submit that given the defects that afflicted the originating processes by which the suit was commenced, the lower Court lacked the jurisdiction to entertain the suit; and accordingly, all the proceedings that took place before it including the judgment appealed against amount to nullity and liable to be set aside. He urged us to so hold and, on this
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basis alone, allow the appeal.
On the Appellants’ issue 2, distilled from ground 3 of appeal, learned counsel referred us to paragraphs 2 and 3 of the 6th to 8th Appellants’ amended statement of defence wherein they admitted that though the 3rd to 5th Respondents were members of the Osikadewa Ruling house, but they were neither principal members and/or the Head of the said ruling house and they were not authorized by the ruling houses to institute this action. In resolving this issue, the learned trial Judge held that there must be proof of substantial opposition by the members of the family and that the proof is done by a motion on notice and not by way of defence.
It was the learned counsel’s submissions, on the authority of the case of Osagunna Vs. The Military Government of Ekiti State & Ors. (1997) 7 SCNJ 278 that before a representative suit by a family member on behalf of the family can be competent, there must be common interest in addition to a formal authority signed by the others showing that the representatives have their authority to institute or defend the suit on their behalf. Further, there must be leave of
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Court obtained through a motion ex-parte supported by an affidavit sworn to by one of the persons to be represented and attached therewith a letter of authority. He submitted that in this case, the Respondents failed to fulfill these conditions that are required to prosecute the case in a representative capacity. He also submitted that it made no difference whether or not there was an opposition raised by any member of the family through a motion or through defence. The trial Court in this case, based on the evidence before it ought to have found and held that the Respondents as the Claimants failed to meet the prescribed threshold and therefore lacked the locus standi to institute and maintain this action. He further submitted that it was not enough for the Respondents to claim that they have sufficient and/or common interest to institute the matter but they must furnish the Court with either the authorization of all members of the family or apply for and obtain leave to sue in representative capacity.
He argued that the evidence before the trial Court especially with the joinder of the head of the ruling family (as the 16th Defendant) that the 3rd and
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4th Respondent claimed to represent is sufficient evidence of the absence of authority to institute the suit in a representative capacity. Learned Counsel submitted that the trial Court was manifestly in error for holding that the 3rd and 4th Claimants had locus standi to prosecute the suit in representative capacity simply because no motion was filed in opposition at the beginning of the action. That it is sufficient that the Appellants raised the lack of competence of the Respondents to sue in the (Appellants’) statement of defence, and they needed not file a motion to that effect. He therefore urged this Court to hold that the Respondents failed to fulfill all conditions required to successfully prosecute this suit before the lower Court and to resolve this issue in favour of the Appellants.
On issue 3, learned counsel started his argument by stating the meaning of cause of action and submitted that the pleadings of the Respondents in their amended statement of claim determines what the cause of action in the suit is and the time it accrues for determining whether or not it is statute barred. He relied for support on the cases of
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Cookey Vs. Fombo (2005) 15 NWLR (pt. 947) 202 and Adekoya Vs. FHA (2008) 11 NWLR (pt. 1099) 539 and others. He referred to paragraphs 35 of the Respondents’ amended statement of claim in page 23 of the record where the Respondent stated that they instituted the action when they became aware of the pendency of suit No: STC/8/92; a matter that was based on the findings and recommendation of the Rev. Akindele Panel of Inquiry. The Appellants joined issues with the Respondents by their paragraphs 7-12 wherein they stated that the Rev. Akindele’s Panel sat three times in 1985 and upon submitting his report, the Lagos State Government made a Declaration approving the recommendation in 1989, which was thereafter registered. He relied on Section 8(4) of the Limitation Law of Lagos State, which provides that action founded on tort shall not be brought after the expiration of six years from the date the cause of action arose, to submit that the Respondents’ suit that was filed on the 18th June 1992 is statute barred by virtue of the said section. On this basis, learned Counsel urged the Court to resolve issue 3 in the Appellants’ favour.
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On issue 4, it was submitted that the report of the Rev. Akindele’s panel of enquiry, exhibits D1, D2 and D3 are judicial in nature and as such they are only amenable to be set aside by way of an order of judicial review and not by writ of summons. We were referred to Order 40 Rule 40 of the High Court of Lagos State (Civil Procedure) Rules 2012 which provide for application for judicial review and for declaratory and injunctive reliefs. Learned Counsel also referred to the pleadings of the parties showing that the complaint of the Respondent was against the report of the panel of inquiry and the subsequent chieftaincy declaration made on it, which complaint should have been by judicial review to quash that report. He submitted that exhibits D1, D2 and D3 are reports/documents relating to proceedings of administrative tribunals and government bodies having legal authority to determine the rights of subjects and having the duty to act judicially. Therefore, the appropriate procedure to quash the said exhibits is by judicial review and we were urged to so hold and resolve the issue in favour of the Appellants.
On issue 5, learned counsel submitted that the crux of
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the Respondents’ pleadings before the trial Court is that there are two traditionally recognized ruling houses, namely Erelu and Osikadewa ruling houses who are entitled to present and nominate candidates for fill the stool of Otunba Orijeru of Igboye which tradition and practice is immemorial. It is submitted that the 6th to 8th Appellants by their amended statement of defence denied the claim of the Respondent by pleading that the only ruling houses in Igboye are Ewade, Erelu, Shamba and Osidkadewa as shown in pages 167 to 170 of the record of appeal. He argued that the learned trial Judge in holding that there was only a general traverse to the claims of the Respondent (page 254 to 255 of the record), failed to identify which portion of the Appellants’ pleadings constituted the general traverse. He argued that contrary to the holding of the trial Court, the Appellants specifically traversed the essential and material allegations of the Respondents and the Court was urged to so hold and resolve this issue in favour of the Appellants.
On issue 6, the learned counsel conceded that it is a fundamental requirement of
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Section 36(1) of the Constitution of Nigeria, 1999 as amended that in the determination of the right or obligation of any person by a Court or any tribunal or body vested with the powers to determine questions affecting the rights of others must afford the parties involved equal opportunity to be heard. Failure to adhere to this fundamental requirement in any proceeding will render such proceedings a nullity. He relied on the case of Shekete Vs. NAF (2007) 14 NWLR (pt. 1053) 159 and others in support of this trite principle of law. He however submitted that in this case, contrary to the holding of the trial Court, the Respondents were represented before the Rev. Akindele panel of inquiry by Chief A. B. Adesada who has a duel lineage. This fact was confirmed by the evidence of CW1, who testified that Chief A. B. Adesada represented both the Erelu and Osikadewa ruling houses. That his father’s ruling house is the Erelu through which he became Otunba Ojire and he also belonged to the Osikadewa family though his mother and that he was also the head of the community. He also referred to the evidence of CW2 who stated under cross-examination that his ruling house of Osikadewa was
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included in the Rev. Akindele but only by a divine intervention. Learned Counsel submitted that the two families were included in the report of the panel because they were represented by Chief Adesada and not by any divine intervention as posited by CW2 in his evidence. That the fact that A. B. Adesada and Musa Adebamowo attended two sittings of the Rev. Akindele panel of inquiry was stated in paragraph 8(vi) of the findings of the panel contained in page 42 of the record of appeal. Relying on Section 46 of the Evidence Act 2011, learned counsel submitted that the evidence given by A. B. Adesada (copied in pages 51 to 52 of the record of appeal) given before the panel of inquiry corresponded fully with the findings of the panel on the lineage of Oshifaderin, the founder of Igboye. The learned Counsel submitted that on the basis of the evidence before it, the trial Court erred in law when it held that the Osikadewa Ruling House that was duly represented by A. B. Adesada was denied the opportunity to be heard and the Court was urged to so hold and resolve this issue in favour of the Appellants.
RESOLUTION
The Appellants’ issue one queries the
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competence of the suit commenced via a writ of summons filed on the 18th June 1992 and a statement of claim filed on the 22nd February 1995 before the trial Court. The argument of the Appellants on this issue is to the effect that the trial Court lacked jurisdiction to determine the suit because the two originating processes that were the foundation of the suit were signed by a law firm of “Bisi Ade-Ademuwagun & Co.” which is not a legal practitioner in the roll as defined by Sections 2 and 24 of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004. They argued that even though the processes were later amended, but that amendment cannot cure the fundamental defect of the originating processes.
A Court’s jurisdiction is defined as “a Court’s power to decide a case or issue a decree” (Black’s Law Dictionary, 9th Edition, page 927). The issue of jurisdiction is fundamental to adjudication and it cannot be overemphasized to state and restate that fundamental principle of law. Being a threshold issue, the issue of jurisdiction must be resolved first and foremost before any other issue in
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order to avoid embarking on an exercise in futility, for without jurisdiction any proceeding or decision reached on a case is a total nullity. See Oriorio & Ors. Vs. Osain & Ors. (2012) 16 NWLR (pt. 1327) 560, Anyanwu Vs. Ogunewe & Ors. (2014) 1-2 SC (pt. II) 49 and Effiom Vs. Eteng (2018) LPELR-46130 (CA).
It is also trite law that one of the conditions that must be satisfied in order for the Court to assume jurisdiction on a matter is that such matter comes before the Court by due process, that is, upon performance/fulfillment of all conditions precedent to the exercise of its jurisdiction on the matter. See Madukolu & Ors. Vs. Nkemdilim (1962) LPELR-24023 (SC). The originating processes used in commencing the suit before the trial Court are the foundation of the suit and therefore crucial to the exercise of the Court’s power to adjudicate on the suit. In fact, it is these processes that are first examined and where they are found to be incompetent, the foundation of the suit is in jeopardy. It is required that a legal practitioner must sign the originating processes such as the writ of summons and statement of claim in order for
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them to be valid and competent and to activate the jurisdiction of the Court to look into the complaint contained therein. In the case of Atake Vs. Afejuku (1994) LPELR-585 (SC), Belgore, JSC (later CJN) held:
Who is a legal practitioner? He is that person that has been called to the Bar to practice as a Barrister and Solicitor of the Supreme Court of Nigeria as provided in Section 2(1), (2), (3) & (4) of the Legal Practitioners Act.
So, it is the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Cap. L11 Laws of the Federation of Nigeria 2004 that provides for who can validly sign a process of Court. It is only a person whose name is on the roll, having been called to the Bar that is entitled to practice as Barrister and Solicitor in Nigeria and who can act as such to sign originating Court’s processes for them to be competent. Thus, the signing of the Court’s processes becomes a matter of law, being statutorily required, and the validity of the originating processes has direct effect to the competence/jurisdiction of the Court to adjudicate on the dispute it is called upon to determine. Where any Court processes,
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including originating processes are not signed by a legal practitioner within the contemplation of the provisions of the Legal Practitioners Act referred to supra, the processes are void and the suit is incompetent, and the Court would have no jurisdiction to determine it. See Bukola Vs. Oshundahunsi & Ors. (supra), Octs Education Services Ltd & Anor. Vs. Padson Industries Ltd & Anor. (2012) LPELR-14069, Okafor Vs. Nweke (supra), Dan’asabe Vs. Babale (supra), KLM Royal Dutch Airlines & Anor. Vs. Taba & Ors. (2014) LPELR-239993 (CA).
Now an examination of the writ of summons located in page 1 to 2 of the record of appeal shows clearly that it was stated that:
This writ was issued by BISI ADE-ADEWAGUN & CO. of 79 BANK- ANTHONY WAY, IKEJA…
A signature is appended above the name BISI ADE-ADEMUYIGUN & CO indicating that Bisi Ade-Ademuyigun & Co’s signed the writ. The same Bisi Ade-Ademuwagun & Co. also signed and dated the statement of claim located in page 7 of the record of appeal. There is no doubt that the law firm of ‘Bisi Ademuyigun & Co’ is not a legal practitioner within
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the contemplation of the provisions of Sections 2 and 24 of the Legal Practitioners Act. In the case of F.B.N. Vs. Maiwada (2013) 5 NWLR (pt. 1348) 444 a full panel of the Apex Court revisited its decision in the case of Okafor Vs. Nweke (2007) 10 NWLR (pt. 1043) 521 and decided that it was good law that only legal practitioners who are animate personalities can validly sign Court’s processes and not inanimate law firms. This is now the trite position of the law followed in uncountable number of cases by both the Apex Court and this Court including in the cases of Hamzat & Anor. Vs. Sanni & Ors. (2015) 5 NWLR (pt. 1453) 486 at 505, Unity Bank Vs. Kay Plastic Nig. Ltd & Anor. (2018) LPELR-44977 (CA), CO-operative & Commerce Bank Plc & Anor. Vs. Ekperi (2007) LPELR-876 (SC). The signature of a law firm on the writ of summons and the statement of claim for certain make the processes void and incompetent, which means that the suit has not been placed before the lower Court by due process of law. As a consequence, the trial Court would have no jurisdiction/power to entertain the suit that is commenced by void originating processes ab
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initio. See Ogunseinde Vs. Societe General Bank Ltd (2018) 9 NWLR (pt. 1624) 230 (SC) and Alikor Vs. Ogwo (2019) 15 NWLR (pt. 1695) 331 (SC) and Yusuf Vs. Mobil Oil (Nig.) Plc (2020) 3 NWLR (pt. 1701) (SC).
It is important to state though, that the Respondents amended the writ of summons and their statement of claim and filed the amended processes on the 5th January 2007. Indeed, the proceedings of the lower Court from which judgment appealed against emanated were conducted on the amended writ of summons amended statement of claim. These amended processes were both signed by ‘Banjo Abass Esq. of Sekoni Chambers.’ The question now arises whether this amendment that was apparently done to rectify the illegality of signing the original writ of summons and the statement of claim by a law firm, can validate those processes. In the case of Yusuf Vs. Mobil Oil (Nig.) Plc (supra), a case with similar facts with the present case because the Respondent’s originating proceses were signed by a law firm but subsequently amended and signed by a legal practitioner. The Apex Court, per Okoro JSC held that though a party is entitled to amend his
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pleadings under certain principles before judgment, but that such “processes sought to be amended must be competent and valid before it can be given a hearing by the Court…. The truth be told that where a writ of summons or a statement of claim is incompetent, as in this case, the Court would have no jurisdiction to entertain the matter….” In his contribution to the judgment, Augie J.S.C. held in page 21, paragraph G that:
There is no question that the 3rd and 4th amended statement of claim, which were signed by a law firm are incurably defective and incompetent. Bearing in mind that an amendment dates back to the date the process amended was filed, it follows that an incompetent process, which is dead ab initio cannot be amended. The said processes do not exist in the eyes of the law. So, there is nothing to amend as there was nothing there in the first place.
See also Oyewole & Ors. Vs. Adedeji (supra) and SLB Consortium Ltd Vs. NNPC (supra) cited by the Appellants’ learned counsel, and Cooperative & Commerce Bank Plc & Anor Vs. Ekperi (2007) LPELR-876 (SC).
So, it is in this case that since the
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originating processes were void ab initio because they were not signed by a legal practitioner, there was no suit in the eyes of the law before the trial Court. Consequently, all the proceedings of the lower Court based on the void originating processes including the judgment delivered thereon amount to total nullity and deemed not to have taken place at all. On this basis, issue one is answered in the negative and resolved in favour of the Appellant. In the circumstance I cannot proceed to determine the remaining issues raised by the Appellants, perchance that the Respondents decide to return to the trial Court to start afresh.
Having resolved issue one in favour of the Appellants to the effect that the entire suit is incompetent ab initio and the lower Court had no jurisdiction to determine it, means that the appeal has merit and I allow it. I set aside the judgment of the trial Court and the entire suit is hereby struck out. Cost of N200, 000 (two hundred thousand Naira) awarded to the Appellants against the Respondents.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the lucid judgment prepared by my learned brother, Balkisu Bello Aliyu, J.C.A.
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EBIOWEI TOBI, J.C.A.: I have been opportuned to read in draft the leading judgment of my learned brother, Balkisu Bello Aliyu, JCA, and I am in agreement with my lord’s resolution of the issues presented before this Court for determination. It is trite law that one cannot put something on nothing and expect it to stand. In Mamman & Anor vs. Hajo (2016) the Supreme Court per Muhammad, JSC had this to say:
“The well laid down principle of the law is that one cannot put something on nothing and expect it to stand, it will certainly collapse. Macfoy v. UAC (1961) 3 WLR 405 at 1409. All the proceedings conducted by the Sharia Court of Appeal of Kebbi State in that matter, giving rise to this appeal, were voided by the provision of Section 277 of the 1999 Constitution (as amended). In Macfoy’s case(supra), Lord Denning was reported to have said: “If an act is void, then it is in law a nullity, it is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It (is) automatically null and void without much ado, though it is sometimes convenient to have the Court to declare it to be so. And every proceeding
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which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect to stay there. ”
Similarly, in NERC vs. Adebiyi & Ors (2017) LPELR 42903 (CA), this Court per Georgewill, JCA reiterated this principle when he held:
“The law is far too well settled to be disturbed now that out of nullity nothing worth anything or something can emerge or be predicated thereon. The Latin Maxim goes thus: Nihil non-exspectantaedificare Store: One cannot put something on nothing and expect it to stand. No! It would simply collapse like a pack of cards. See Benjamin Leonard Macfoy V. UAC Limited (1962) AC 152…”
Having found that the originating processes which vests jurisdiction on the Court was void abinitio, there was no amount of amendment that can cure such defect as there is nothing before the Court in the first place. It is just like administering oxygen to a dead person; no amount of oxygen administered will bring the dead person back life.
It is in the light of the foregoing and the fuller reasons given by Learned brother Balkisu Bello Aliyu, JCA, in the fuller judgment that I find that this appeal is meritorious same is
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hereby upheld. In consequence, the proceedings and judgment of the lower Court is hereby set aside and the suit struck out. I abide by the order for cost.
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Appearances:
J. ODESOLA ESQ. For Appellant(s)
O. MUHEEB ESQ. – FOR THE 4TH – 6TH RESPONDENTS
I. B. ANIMASHAUN ESQ. – FOR THE 8TH RESPONDENT
T. A. DAIRO ESQ. – FOR THE 9TH & 10TH RESPONDENTS
1ST, 3RD, AND 11TH RESPONDENTS SERVED WITH NOTICES OF HEARING BUT THEY WERE ABSENT.
For Respondent(s)
