OGBOMOSO NORTH LOCAL GOVERNMENT v. ADECENTRO NIGERIA LIMITED & ORS
(2019)LCN/13240(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/IB/282/2009
RATIO
WHETHER A FIRM OF LEGAL PRACTITIONERS CAN SIGN A PROCESS FOR THE USE OF THE COURT
A firm of legal practitioners who, it has been repeatedly said, is incapable of signing a process for use in Court which law and practice has become so hackneyed as to be now common place since OKAFOR V. NWEKE (2007) 10 NWLR (PT.1043) 521 AT 534.PER NONYEREM OKORONKWO, J.C.A.
WHEN THE COURT OF APPEAL CAN RAISE ITS OWN ISSUES
In other words, the Court of Appeal is at liberty to raise issues where the parties have failed to raise a crucial issue of competence or jurisdiction John Bankole & 3 Ors v Mojidi Pelu & 3 Ors (1991) 11 -12 SC 116; Inua v. Nta (1961) 1 All NLR 576; Otegbade v. Adekoya (1962) 2 All NLR 52.PER NONYEREM OKORONKWO, J.C.A.
WHO HAS THE RIGHT AND CAPACITY TO SIGN A LAW PROCESS
The law has been restated over time that it is contrary to Sections 2(1) and 24 of the Legal Practitioners Act 1975 to sign a Law process especially a writ of summons, statement of claim etc by anyone other than a claimant or a Legal Practitioner engaged by such suitor.PER NONYEREM OKORONKWO, J.C.A.
JUSTICES
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
OGBOMOSO NORTH LOCAL GOVERNMENT Appellant(s)
AND
1. ADECENTRO NIGERIA LIMITED
2. OGBOMOSO SOUTH LOCAL GOVERNMENT
3. SURULERE LOCAL GOVERNMENT
4. OGOOLUWA LOCAL GOVERNMENT Respondent(s)
NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): The appeal arose from the judgment of the Oyo State High Court delivered on 30/10/98 whereby the following reliefs were declared in favour of the plaintiff herein respondent. The reliefs adjudged in plaintiff?s favour are as follows:
(1) A declaration that the employer?s or defendants? failure to cause to be issued Certificate No. 3 within time and/or to pay for work done and materials provided by the plaintiff as building contractor on due dates is wrongful, improper and constitutes a breach of contract made between the plaintiff and the employer or defendants for the construction of Commercial and Motor Park Complex at Ogbomoso.
(2) The sum of N96,612,66 due and payable as balance for work done by the plaintiff at the request of the Ogbomoso Local Government or the defendants.
(3) The sum of N3,703,450.60k as loss of profit on the said contract.
(4) The sum of N208,153.00 as itemized in paragraph 22 herein.
(5) The return of the plaintiff?s plants, equipment, materials and tools as set out in paragraph 24(b) herein in
1
good condition or their value in the sum of N23,613.030.00.
(6) The sum of N12,551.577.00 damages for loss of use of the plants, equipment, materials and tools for the period May 1986 to 1991.
(7) Damages for the wrongful detention of the plaintiff?s said plants, equipment?s, materials and tools, is assessed at N50,000.
The writ of summons by which the suit was commenced is at pages 1 and 2 of the record and was expressed to be issued by Bandele Aiku & Co of 18 Oyo Road Mokola, Ibadan. The statement of claim was signed by Bandele Aiku & Co plaintiffs solicitors.
A lot of work and time was expended in this case wherein the claim of the plaintiff herein respondent was: –
1. A declaration that the defendants failure to pay for work done and materials provided by the plaintiff as building contractor on due dates is wrongful, improper and constitutes a breach of a written contract dated 29 August, 1980 made between the plaintiff and the defendant for the construction of Ogbomoso Motor Park/Market Complex at Ogbomoso.
2. The sum of N96,612.68 being balance
2
due and payable by the defendant to the plaintiff for work done by the plaintiff as contractor on the contract for the construction of Ogbomoso Motor/Market Complex at the defendant?s request at Ogbomoso.
3. The sum of N3,802,773.00 as loss of profit on the said contract.
4. The sum of N208,153.60 as cost of preliminaries, labour and staff pay-off and maintenance of plant incurred by the plaintiff on the said contract.
5. The return of the Plaintiff?s tools, materials, plants, machinery and equipments wrongfully detained by the defendant at the site of the Ogbomoso Motor Park/Market Complex, Ogbomoso or their value in the sum of N6,935,250.00.
6. N2,000.000 damages for loss of use of the said tools, plants, machinery and equipments.
The record of proceedings spans 690 pages showing the time and work put into the case by the parties, lawyers, administrative staff and of course the judges through whom the case passed.
I have earlier made reference to the writ of summons and the statement of claim, being originating processes of the claimant (herein respondent) signed by Bandele Aiku & Co.
3
A firm of legal practitioners who, it has been repeatedly said, is incapable of signing a process for use in Court which law and practice has become so hackneyed as to be now common place since OKAFOR V. NWEKE (2007) 10 NWLR (PT.1043) 521 AT 534. Notwithstanding, neither the appellant nor respondent raised the issue in this appeal. But it is an issue that goes to jurisdiction and the Court of Appeal is under the rules able to raise it. See Order 4 Rule 4 which provides thus:
The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondent?s notice has been given in respect of any particular part of the decision of the Court below, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.
In other words, the Court of Appeal is at liberty to raise issues where the
4
parties have failed to raise a crucial issue of competence or jurisdiction John Bankole & 3 Ors v Mojidi Pelu & 3 Ors (1991) 11 – 12 SC 116; Inua v. Nta (1961) 1 All NLR 576; Otegbade v. Adekoya (1962) 2 All NLR 52.
The issue is whether these proceedings in HOG/11/1991 is competent having been signed or initiated by Bandele Aiku & Co. and whether the lower Court had jurisdiction to do all that was done in that case.
The law has been restated over time that it is contrary to Sections 2(1) and 24 of the Legal Practitioners Act 1975 to sign a Law process especially a writ of summons, statement of claim etc by anyone other than a claimant or a Legal Practitioner engaged by such suitor. Several cases of the Supreme Court and of this Court has expounded this principles. In one such case coming before the Court of Appeal, Ibadan in Chief Fatai Agbebiyi & Ors v. Chief Sikiru Balogun Appeal No: CA/I/4/2012 reported LPELR I said:
The various High Court Civil Procedure Rules provide copiously for mode of commencing civil actions by writ of summon shall be signed by the intending Claimant or his Legal Practitioner.
5
In practice, most suits are signed by a Legal Practitioner and who a Legal Practitioner is, is aptly defined in Section 24 of the Legal Practitioners Act 1975 as a person entitled in accordance with the provisions of this act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.
In this case, the Writ of Summons was initiated or signed by Peluola, Lalude & Co., a firm of solicitors which is not a person entitled to practice as a barrister and solicitor and whose name is not on the roll of Barristers and solicitors in the Supreme Court of Nigeria.
The cases of Okafor vs. Nweke (2007) 10 NWLR (pt.1043) 521 at 534 and Peak Merchant Bank vs. Nigeria Deposit Insurance Corporation (2011) 12 NWLR (pt.1261) 253 and Ogundele vs. Agiri & Anor. (2009) 12 S.C. (pt.1) 135 at 165 have been cited in support and the consensus of judicial opinion from the apex to the base seem to be that such defect or omission rendered the entire proceedings a nullity ab initio, the defect being irreparable.?
In this case, the Writ of Summons was initiated and signed
6
by Bandele Aiku & Co., a firm of solicitors who is not a person entitled to practice as a barrister and solicitor and whose name is not on the roll of barristers and solicitors in the Supreme Court of Nigeria.
The Writ of Summons, not having been initiated by due process, everything founded upon it is a nullity. In that case under reference, I further commented thus:
The reason, in my view, why the entire proceedings become a nullity is that it was not begun at all. If it was not begun, there is nothing to cure or remedy as the learned counsel for the 1st – 4th respondents tearfully pleaded. Being a nullity, it does not exist. As it does not exist, every superstructure founded or erected thereupon rests on nothing and therefore is vitiated. The superstructures include the proceedings and the judgment of the lower Court, the subject of this appeal. They all rest on nothing and are therefore vitiated by being set aside.
This appeal lapses, the Suit HOG/11/91 and the judgment on it are hereby set aside and struck out.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft the Judgment
7
just delivered by my learned brother Nonyerem Okoronkwo JCA. The reasoning and conclusion are in consonance with my views on the issues raised in this appeal, and I adopt them as my own.
In this case the Writ of Summons was initiated and signed by Bandele Aiku & Co, a firm of solicitors who is not on the roll of barristers and solicitors in the Supreme Court of Nigeria.
The defect in signing a Court process as in the Writ of Summons and Statement of Claim in this case is extrinsic to the adjudication of the case; The condition precedent to the exercise of jurisdiction is absent. Section 2(1) of the Legal Practitioners Act States that subject to the provisions of the Act, a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the roll. And Section 24 of the Act defines a legal practitioner as a person entitled in accordance with the provisions of the Act to practice as a barrister and or a barrister and solicitor either generally or for the purpose of any particular office or proceedings.
?In this case the Writ of Summons not having been initiated by due process everything founded upon it is a
8
nullity. See Chief Fatai Agbebiyi & Ors v. Chief Sikiru Balogun Appeal No: CA/I/4/12, Onyekwuluje vs Aminashaun (2019) 4 NWLR (pt. 1662) 242, Oke v. Sotunde (2019) 4 NWLR (pt. 1661) 119, Hamzat v. Sanni (2015) 5 NWLR (pt. 1453) 486 SC, Greif (V.L) Containers v. O.P & Ind Ltd (2015) 8 NWLR (pt. 1461) 260, Eze v. Okechukwu (2015) 10 NWLR (pt. 1467) 307 and C.D.O Tudun Maliki Quarters v. Mohammed (2015) 9 NWLR (pt. 1465) 585.
In consequence thereof this appeal lapses, the suit H09/11/19 and the Judgment on it are hereby set aside and struck out.
FOLASADE AYODEJI OJO, J.C.A.: I have read before now the lead judgment delivered by my learned brother NONYEREM OKORONKWO JCA. I completely agree with his Lordship that the lower Court had no jurisdiction to entertain the suit culminating in this appeal.
?The suit at the lower Court was commenced by an invalid originating process. The Writ of Summons was signed by Bandele A. Aiku & Co., a law firm. This is contrary to the provision of Section 2(1) and 24 of the Extant Legal Practitioners Act. It has been held in a number of judicial authorities that a Writ of Summons signed by a law
9
firm is incompetent and any proceeding thereon is a nullity. See SLB CONSORTIUM LTD VS. NIGERIAN NATIONAL PERTOLEUM CORPORATION (2011) 9 NWLR (PT. 1252) 317 AT 322; BRAITHWAITE VS. SKYE BANK PLC (2013) 5 NWLR (PT. 1346) 1; OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1043) 521; FIRST BANK OF NEGERIA PLC & ORS VS. ALHAJI SALAMANU MAIWADA & ORS. (2012) LPELR 9713 (SC); ALHAJI TAJUDEEN BABATUNDE HAMZAT & ANR. VS. ALHAJI SALIU IREYEMI SANNI & ORS. (2015) LPELR – 24302 (SC).
An incompetent Writ of Summons goes to the foundation of an action and robs the trial Court of jurisdiction to entertain such suit. A valid Writ of Summons is a condition precedent for a competent suit. The Writ of Summons filed at the lower Court is invalid having been signed in the name of a law firm.
?An incompetent action cannot give birth to a competent appeal. It is for the above and fuller reasons given in the lead judgment that I also strike out this appeal. I abide by all the consequential orders made by my learned brother in the lead judgment.
10
Appearances:
Akinsumbo S. Akande with him, O.S. YusufFor Appellant(s)
1st Respondent absent.
2nd, 3rd and 4th Respondents absent.For Respondent(s)
Appearances
Akinsumbo S. Akande with him, O.S. YusufFor Appellant
AND
1st Respondent absent.
2nd, 3rd and 4th Respondents absent.For Respondent
