OJO OGUNWALE & ORS v. MOSES ADEYI & ORS
(2019)LCN/13298(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of May, 2019
CA/IB/285/2009
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
OJO OGUNWALE & ORS Appellant(s)
AND
MOSES ADEYI & ORS Respondent(s)
RATIO
WHETHER OR NOT WHERE A STATUTE HAS PRESCRIBED THE MODE OF PERFORMING AN ACT, IT MUST BE STRICTLY COMPLIED WITH
It is settled law that where a statute has prescribed the mode of performing an act only that mode of performing the act competently is contemplated, otherwise the act will be a nullity. When the law has specified the mode of doing an act or following a step in proceeding that mode must be strictly complied with. See Abubakar v. Nasamu (No.2) (2012) 17 NWLR (PT. 1330) 523 (SC). PER TALBA, J.C.A.
THE FUNDAMENTAL ISSUE OF THE PROPER PERSON TO SIGN A LEGAL PROCESS
?The issue of the proper person to sign a legal process is so fundamental that when a legal process is authored by a person not authorized or recognized by the Legal Practitioners Act to sign the document or the Rules of the Court, the process is rendered invalid and it becomes null and void. The law is that once an initiating process or any other legal process is not signed or authorized either by the party in the suit or the Legal Practitioner on his behalf, then the process is invalid and the jurisdiction of the Court is ousted. It has been held in innumerable cases both by this Court and the apex Court that a law firm is not a legal person and therefore cannot sign and issue any legal process under the Legal Practitioners Act. PER TALBA, J.C.A.
WHETHER OR NOT WHEN A LAW IS BREACHED, ANY ACTION CARRIED OUT AS A RESULT OF THE BREACH IS ILLEGAL, NULL AND VOID
It is well established that when a law is breached, any action carried out as a result of the breach or contrary to the dictates of the law is illegal null and void.
It follows that any Court process not signed or authorized by the person authorized to so author is fundamentally defective and cannot be corrected ? See Chief Fatai Agbebiyi & Ors v. Chief Sikiru Balogun Appeal No. CA/I/4/2012; Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521; Oketade v. Adewunmi (2010) 8 NWLR (pt. 1195) 63; F.B.N. Plc v. Maiwada (2013) 5 NWLR (pt. 1348) 444 and Igbenidion v. Watson & Sons Ltd (2018) 8 NWLR (pt. 1621) 374. PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Oyo State High Court of Justice, Ogbomoso Judicial Division delivered on the 30th day of April, 2007.
The Respondents in this appeal instituted this action as suit No: HOG/156/91 against the Appellants as Defendants, at the Oyo Judicial Division. Upon an application made by the Plaintiffs now Respondents the case was transferred to Ogbomoso Judicial Division with a new Suit No: HOG/11/93.
The Plaintiffs now Respondents filed a Further – Further Amended Statement of Claim on 29th January, 2004 pursuant to the order of Court made on same date.
Equally the Defendant now Appellants filed an Amended Statement of Defence on 18th December, 2001. Pursuant to the Order of Court made on 12th December, 2001. The Reply to the Defendants/Appellant Amended Statement of Defence dated 28th day of January, 2004 was deemed properly filed and served on the 29th day of January, 2004.
?The Plaintiff now Respondents Claim against the Defendants now Appellants, jointly severally in paragraph 16 of the Further ? Further Amended
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Statement of Claim is as follows:
1. A DECLARATION that the Plaintiff entitled to Certificate of Occupancy in respect of the piece or parcel of land measuring about 67.154 hectares and worth at least a million naira and situate, lying at Alaba Village and to which piece or parcel of land is delineated on survey plan Number BOP/OY/91/706.
2.The sum of N100,000:00 being special and general damages for wanton and malicious destruction of the Plaintiff crops committed by the Defendants on the Plaintiffs farm situate and lying at Alaba Village, Ogbomoso on various dates namely 24/5/91 and 27/8/96 among others .
PARTICULARS
(a) 2 acres (sic) (about 9 hectares (sic) of tomatoes destroyed on 24/5/91 N10,000:00
(b) 2 acres (about 1 hectare) of Maize destroyed on 27/8/96 N 35,000:00
(c) 3 acres (about 1 hectare) of Tomatoes destroyed on 27/8/96 N 25,000:00
General Damages N 30,000:00
N 100,000:00
3. An injunction restraining the Defendants their servants, agents and other privies whatsoever from further acts of trespass on the said farmland.
Parties filed and exchanged pleadings. After close of pleadings the case proceeded
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to hearing. In the course of trial before the Lower Court parties adduced oral evidence in support of their pleadings and tendered survey plan as proof of title. The two Plaintiffs/Respondents testified and they called seven other witnesses, while the 1st and 6th Defendants/Appellants testified and they called three other witnesses. At the conclusion of the trial the learned trial Judge Hon. Justice O. A. Boade held thus:
?In conclusion, the claim of the Plaintiffs succeeds and the reliefs are granted accordingly with the exception of damages which has been put at N10,000:00 for Crops damaged on 24/5/91 and general damages of N 25,000:00 for trespass?
Being aggrieved by the Judgment the Appellants lodged an appeal to this Court. The original Notice of Appeal was filed on the 19th day of June, 2007. On the 12th day of May, 2010 the Court granted leave to the Appellants to amend the Notice of Appeal and to argue additional grounds of appeal. And on the 17th May, 2017 the Court further granted leave to the Appellants to further amended their amended Notice of Appeal by incorporating the additional grounds of appeal into the further
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amended notice of appeal.
The Court also deemed the already filed further amended notice of appeal dated and filed on 11th May, 2017 as being properly filed and served on the 17th May, 2017.
The further amended notice of appeal contain nine (9) grounds of appeal. The reliefs sought from the Court of appeal are thus:
(i) AN ORDER of the Appellate Court allowing this appeal, setting aside the Judgment of the lower Court delivered on 30th day of April, 2007 and dismissing the Respondents Claims in its entirety.
(ii) ANY FURTHER ORDER or other orders.
Parties filed and exchanged briefs. At the time of the hearing of this appeal the Appellant relied on the brief filed on 26th June, 2017, the amended Appellants brief. The Respondent was not in Court and he was not represented by a counsel. The Court Registrar informed the Court that the Respondent was served with a hearing notice through his counsel Olusegun Oyewo. The Appellants? counsel urged the court to deem the Respondents brief as having been argued. Pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules 2016.
?Consequently the Respondents brief filed on 6th March
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2018 and deemed properly filed and served on 20th March, 2018, was deemed as having been argued. The Appellants counsel equally relied and adopted the amended reply brief of argument filed on 3rd April, 2018. The Appellants counsel submitted that the Respondents raised a notice of Preliminary Objection in their brief but he failed to comply with Order 10 Rule 1 of the Court of Appeal Rules 2016.
In the amended Appellants brief four issues were distilled for determination as follows:
1. Whether the Plaintiffs before the lower Court properly invoked the Jurisdiction of the Honourable Court was right when it granted the Plaintiffs reliefs in this case.
2. Whether considering the entire claims of the Respondents before the lower Court Vis a Vis the evidence led by them the Honourable Court below ought to have entered Judgment for them the way it did.
3. Whether from the totality of the case of the parties before the Honourable Court below, the Honourable Court below was right to grant the Plaintiffs before it as it did.
4. Whether the Honourable Court below was right when it held that the Plaintiffs before it had established better title and
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that they are entitled to the damages claimed by them.
The Respondent raised a preliminary objection and argued same in the respondents brief. And alternatively the Respondent adopted the issues for determination as formulated by the Appellants in this appeal.
It is apt at this stage to consider the preliminary objection. The Respondent counsel submitted that ground one of the grounds of appeal is incompetent and runs foul of the provisions of the Court of appeal Rules Order 6 Rule 2 (2) and (3) 2011. The said grounds of appeal lack particulars of error of the alleged reliefs which are not available to the Respondents as Claimants at the trial Court to which the trial Court lack jurisdiction. Learned Counsel submitted that a ground of appeal which alleges errors in law or misdirection but fails to furnish the particulars of the error or misdirection alleged is competent and liable to be struck out. By the ground the Appellants alleged that the trial Court acted without jurisdiction to grant a particular relief without furnishing the particulars. He cited the following cases to buttress his argument Umanah v. Attah (2004) NWLR (pt. 871) 63 and
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A.G.Akwa Ibom State v. Essien (2004) 7 NWLR (pt. 872) 288.
Learned counsel urged the Court to strike out the ground and discountenance all arguments canvassed thereon.
On grounds four of the grounds of appeal learned counsel submitted that ground four is split into two issues for determination i.e issue 2 and 4 in the Appellants brief. Issues in appeal must arise from one or more grounds of appeal and it is usual for one, two or more grounds of appeal to constitute an issue but not the other way round. He also relied on the following cases to buttress his argumentA.P. Ltd v. Owodunni (2003) 15 NSCQR 308, Ifediorah v. Ume (1988) 2 NWLR (pt. 74) 5, Nwokoro v. Nwosu (1994) 4 NWLR (pt. 337) 172, Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718, N.B.N. Ltd v. N.E.T. Ltd (1986) 3 NWLR (pt 31) 667, Modupe v. State (1988) NWLR (pt. 87) 130, First Bank of Nigeria Plc. v. Alh Musa Labbo (1996) 3 NWLR and Kano ile v. Gloede & Hoff (2005) 22 NSCQR 346.
Learned counsel submitted that the two issues formulated from ground four has rendered ground four and all the issues formulated thereon incompetent. He urged the Court to strike out ground four and the
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issues formulated thereon. And that issues 2 and 3 were formulated based on ground 2 which has rendered ground 2 and the issues canvassed thereon incompetent. Learned counsel submitted further that issue No. 3 as formulated in the Appellants brief of argument appears to cover all the grounds of appeal. Also issue No. 4 of the Appellants relates to grounds 2, 3 & 4 of the grounds of appeal. The combined effect of this is that more than one issue had been formulated on each ground of appeal . the issues so formulated and arguments thereon are invalid and must be struck out.
While responding to the preliminary objection in the amended Reply brief of argument, the Appellants counsel submitted that the preliminary objection is misconceived; the Respondents have failed to take proper step according to settled position of law to challenge the grounds of appeal.
?The law is settled that where a Respondent intend to challenge a ground or some grounds of appeal or object to the competence of a ground or some grounds of appeal, it is by way of motion on notice for an order striking out the incompetent grounds of appeal and not by way of a preliminary
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objection in the Respondents brief.
Learned counsel submitted that the object of a preliminary objection is to challenge the competence of an appeal or the hearing of an appeal. The purpose of which is to terminate the appeal at that stage if successful. Learned counsel relied on the case ofGarba v. Mohammed (2016) 16 NWLR (pt. 1537) 114 at 115 E ? F where the Supreme Court held thus:
?A preliminary objection is only filed against the hearing of an appeal. Where for example there is an objection against some grounds of appeal but there are other grounds that can sustain the appeal a preliminary objection would not be appropriate procedure to adopt in the circumstances?
Learned counsel referred to Order 6 Rule 3 which relate to striking out of vague ground of appeal and Order 6 Rule 6 which relate to striking out of Notice of Appeal. He said the two provisions are different and the ways of invoking them by an aggrieved Respondent(s) is equally different.
?Learned counsel submitted that the Respondents having failed to file a motion to challenge the competence of the ground of appeal, he is precluded from doing so by way of
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a notice of preliminary objection.
The learned counsel submitted the assuming without conceding that the Respondent can raise preliminary objection to the grounds of appeal, the objection is not well founded. He submitted that the 1st ground of appeal is an issue of jurisdiction which can be raised at any time and by any means. It can be raised orally by a party and it is radical in nature so it can be raised by the Court Suo Moto. The absence of jurisdiction will strict to senso deprive the Court of the power to adjudicate in any matter.
On the nature of issue of jurisdiction and when and how it can be raised, the learned counsel relied on the case of M.P.P.P v. I.N.E.C (No. 2) 2015) 18 NWLR (pt. 149) 251 at 269 where the Court held thus:
?The issue of jurisdiction is over and above any legal manipulation. It has to be neatly observed and acted upon, whether it was raised in any ground of appeal or not. The jurisdiction of Court is a question of law which can be mentioned and raised for the first time in the Appellate Courts or even in the Supreme Court.
There is no need for leave of Court to be sought and obtained before it can be
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said to have been properly raised. No matter in what manner it was raised, it can lawfully be raised as a fresh issue on appeal?
The learned counsel also relied on the case of Adegbite v. Amosu (2016) 15 NWLR (pt. 1536) 405 at 427 where the Supreme Court held that:
?The issue of jurisdiction is fundamental and it can be raised at any stage of the proceedings even for the first time in the Supreme Court without leave. The issue of jurisdiction may be pleaded or may not be pleaded. All that is required is that some process is filed so that the adverse party is not taken by surprise?
See Oyakhire v. State (2006) 15 NWLR (pt. 1001) 157, Gaji v. Paye (2003) 8 NWLR (pt. 823) 583, Arjay Ltd v. Airline Management Support Ltd (2003) 7 NWLR (pt. 820) 557, Opobiyi v. Muniru (2011) 18 NWLR (pt. 1278) 387, NNPC v. KLIFCO Nig. Ltd (2011) 10 NWLR (pt. 1255) 209., NBN Ltd v. Soyeye (1977) 5 SC 181, Ndaeyo v. Ogunaya (1977) 1 SC 11 and Oloba v. Akereja (1989) 3 NWLR (pt. 84) 508.
Learned counsel submitted that the ground 1 of the grounds of appeal is a complete particular in itself because it raise the fundamental and radical issue of
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the lower Court jurisdiction to take the case and grant the reliefs before it. He submitted that once objection is raised to the jurisdiction of a Court the entire case is put up for examination with a view to determining whether there is no feature in it which robs the Court of the power to adjudicate over it. He cited the case of Ugbomi v. Okowa (2016) 11 NWLR (pt. 1522) 84 where the Supreme Court held:
?A ground of appeal is to give the respondent the necessary notice of the grudges the Appellant has against the Judgment he has appealed against. Particulars of a ground of appeal only provides specific details to fill the yearning gaps in an explicit ground. Once a ground of appeal gives the Respondent the necessary notice of the grudges the Appellant has against the decision of appeal and leaves no room for any surprise to be thrust on the Respondent. On the issue to be raised in the appeal the ground is valid and competent. See Iwuoha v. Nipost (2003) 8 NWLR (pt. 822) 208 and Osasona v. Ajayi (2004) 14 NWLR (pt. 894) 527 referred to?
The learned counsel equally relied on the Supreme Court decision in the case of Ameen v. Amao (2013) 9
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NWLR (pt. 1353) 159 at 170 ? 171 where the Court held thus:
?The absence of particulars for a ground of appeal would not necessarily render the ground void and of no effect. What is needed is that the other party knows precisely what is in contest on appeal. Therefore where the ground leaves no room for doubt as to what the dispute is or the explanation is embedded in the ground of appeal then an objection to the competence of the grounds for absence of particulars cannot hold. SeeUBA Ltd v. Achoru (1990) 6 NWLR (pt. 125) 254 Shyllon v. Asein (1994) 6 NWLR (pt. 353) 670 referred to?.
The learned counsel submitted that ground 1 is sufficient notice to the Respondent and there is no need for particulars.
?On ground 4 of the grounds of appeal the learned counsel submitted that it is not true/correct that it is split into 2 issues for determination, that is issues 2 and 4 in the Appellants brief. The Respondent in an inconsistent manner at page 4 in paragraph 3 of the Respondents brief also allege that issue 2 is generated from ground 2 of the notice of appeal. He said the submission is inconsistent and show clearly that there is a
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misapprehension of the grounds of appeal raised and issues generated therefrom. The Respondents are also contending that issue No. 4 relates to grounds 2, 3 and 4. The learned counsel submitted that the entire submission of the Respondents counsel is conflicting and inconsistent. He urged the Court to dismiss the preliminary objection.
Responding further to the preliminary objection the Appellants counsel submitted that issue 1 of the Appellants brief is related to Ground 1 of the amended notice of appeal. And issue 1 can be raised in the brief of argument without same being raised as a ground of appeal.
Issue No. 2 is a focus on the case of the Respondent before the lower Court and to examine whether the Respondent who had the burden of proof had discharged same. It also examined the case of the Respondents before the lower Court in terms of the declaratory reliefs sought.
Issue No.2 cover ground 4 of the amended grounds of appeal and ground 1 of the additional grounds of appeal.
?Issue No. 3 relate to ground 5 of the amended grounds of appeal. It relates to the omnibus grounds of appeal related to the general examination of the case of the
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parties and not specific findings of the lower Court.
Issue No. 4 relate to grounds 2 and 3 of the grounds of appeal in amended notice of appeal, and ground 4 of the additional ground of appeal. The issue relates to specific findings of the lower Court that the Respondents have established a better title and that they are entitled to the damages claimed by them. The particulars of each ground relate to the findings of the Court and relate to what is decided by the lower Court.
Let me first and foremost deal with the competence of the preliminary objection. The appellants counsel contended that the preliminary objection is misconceived, the Respondents have failed to take proper steps, according to settled position of the law to challenge the grounds of appeal, which is by way of motion on notice for an order striking out the incompetent grounds of appeal and not by way of a preliminary objection in the Respondents brief. The Appellants counsel submitted that having failed to file a motion on notice to challenge the competence of the grounds of appeal. The Respondents are precluded from doing so in the Respondents brief.
Order 10 Rule 1 of the
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Court of Appeal Rules 2016 provides that, a Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, settling out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registry within the same time.
It is without any doubt that a preliminary objection is by notice of which twenty copies have to be filed before hearing of the objection. Notice is not brief of argument, hence Order 10 Rule 1 of the Court of Appeal Rules does not specify that preliminary objection shall be incorporated in the brief of argument nor state that the preliminary objection shall be by way of motion. However where the preliminary objection is incorporated in the brief of argument, with the grounds of objection and three clear days before the hearing, it has been accepted by the Court of Appeal as a mode of bringing preliminary objection in the Court. In this instant case the preliminary objection was incorporated in Respondents? brief of argument and three days? notice before the hearing of the objection was given to
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the Appellant. There is therefore compliance with Order 10 Rule 1 of the Court of Appeal Rules 2016. See Abana v. Obi (2004) 10 NWLR (pt. 881) 319; Okolo v U.B.N. Ltd (2004) 3 NWLR (pt. 857) 87.
On this note I hold that the preliminary objection is properly before this Court. The arguments canvassed by the Respondent on the preliminary objection and the response of the Appellant has been adequately captured in the early part of this judgment. It will therefore be apt to proceed to resolve the issues therein.
The respondent raised a preliminary objection to ground one (1) of the grounds of appeal as being incompetent and runs foul of the provision of the Court of Appeal Rules, Order 6 Rule 2 (2) and (3) 2011. The said ground one of the grounds of appeal lacks particulars of error of the alleged reliefs.
Ground one of the further amended notice of appeal reads:
?The learned trial Judge acted without jurisdiction when he granted the plaintiffs reliefs in this case, when the reliefs are not available in the particular circumstances of this case and ought to have been dismissed.?
?It is crystal clear that ground one is an issue
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of jurisdiction. Jurisdiction is a radical and crucial question of competence for if the Court has no jurisdiction to hear the case, the proceedings are and remain a nullity however well conducted and brilliantly decided, they might otherwise have been as a defect in competence is intrinsic to but rather extrinsic the adjudication so observed. Jurisdiction of a Court can be raised and challenged even for the first time in the Court of Appeal or Supreme Court. See Att. Gen Bendel State & 2 Ors v. PLA Aideyan (1989) 4 NWLR (pt. 118) 646 (SC); Elendu v. Ekwoaba (1995) 3 NWLR (pt. 386) 704 (CA) and Ijebu Ode Local Govt v. Adedeji Balogun & Co Ltd (1991) 1 NWLR (pt. 166) 136. Applying the above authorities the Appellant has legal justification to raise the issue of lack of jurisdiction of the lower Court in this Court. The ground of appeal raising the issue of jurisdiction of the Court cannot be ignored for any reason whatsoever. See Eze v. AG River State & Anor 8 NSCQRR 537.
The law is that once the grounds of appeal are clear and contain details of points complained of, the absence of particulars is not fatal and does not render the grounds
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incompetent. See Osho v. State (2012) 8 NWLR (pt. 1302) 243 (CA); Osasona v. Ajayi (2004) 14 NWLR (pt. 894) 527; Koya v. UBA Ltd (1997) 1 NWLR (pt. 481) 251; UBA Ltd v. Achoru (1990) 6 NWLR (156) 254.
The very essence of grounds of appeal is to give reasonable and adequate notice of what the grouse, attack or complaints are against the decision appealed from. Once the grounds give or provide sufficient information to enable the Respondent know what he is to meet at the appeal and would therefore not be taken by surprise on the issue or point raised therein, such grounds are valid and competent ground of appeal.
In this instant case the ground one of the further amended notice of appeal which raised the issue of jurisdiction and competence of the lower Court, gives the Respondent the necessary notice of the grudges the Appellant; has against the decision on appeal and leaves no room for any surprise to be thrust on the Respondent. See Ameen v. Amao (supra).
Consequent to the above findings I hold that the objection to ground one of the grounds of appeal due to the absence of the particulars lacks merit and same is overruled.
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It is settled principle of law that jurisdiction is very fundamental, it is the live wire of a case which should be determined at the earliest opportunity. Once it is raised everything else has to stop to give the prime position of hearing on the jurisdictional issue. Consequent to the above settled principle of law it now becomes expedient to determine the issue of jurisdiction. See N.U.R.T.W. v. R.T.E.A.N. (2012) 10 NWLR p.170 and Oloba v. Akereja (1988) 3 NWLR (pt. 84) 508.
It is the contention of the Appellants? counsel that the writ of summons originating this action at the High Court, the further, further amended statement of claim, the reply to the Defendants amended statement of defence were all signed by J.A.O. Awomolo & Co a name not admitted to practice law in the Federal Republic of Nigeria.
Learned counsel submitted that by virtue of Section 24 of the Legal Practitioners Act, a legal practitioner is defined thus: means a person entitled in accordance with the provisions of this act, to practice as barrister or as a barrister and solicitor either generally or for the purpose of a particular office or proceedings.
?Learned counsel relied on
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the case of Oketade v. Adewunmi (2010) 10 MJSC Vol. 3 (pt. 11) 31 and Equity Bank of Nigeria Ltd v. Halilco Nig. Ltd (2006) All FWLR (PT. 337) 438 AT 445 where the Court held thus:
?An incompetent originating process by which an action is begun robs the Court to entertain the matter before it?.
In response to this point, the respondents counsel admitted that it is settled principle of law that processes signed by a name not being a name dully admitted to practice law in Nigeria is nothing but a mere worthless piece of paper.
Learned counsel submitted that a close look at the ?writ? that commenced this action at page 43 of the record of proceedings before this Court will show that this case is distinguishable from all the cases cited and relied upon by the Appellants.
?Learned counsel referred to the portion of the ?writ? where J.A.O. Awomolo & Company appended its signature immediately after the signature it was written ?This writ issued by J.A.O. Awomolo Esq of J.A.O. Awomolo & Co. learned counsel submitted that J.A.O. Awomolo Esq that issued the ?writ? is a person duly admitted
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to practice law in Nigeria. It follows that J.A.O. Awomolo Esq that settled the writ is equally the person that signed the originating processes. Unlike in the cases cited by the Appellants where it was difficult to know and determine whether actually the processes were signed by person duly admitted to practice law in Nigeria. He relied on the case ofUnity Bank v. Abiola (2009) All FWLR (pt. 452) 1082.
Learned counsel submitted further that J.A.O. Awomolo is the sole counsel in J.A.O. Awomolo & Co that signed the processes, in which case his signature in any process in that name will be deemed proper and valid. He relied on the case of Augusta Cole v. Sergious Olatunji Mattins & Anor (1968) 1 All WLR.
In this instant case the Respondent had agreed that the ?writ? of summons and other processes were signed by J.A.O. Awomolo & Co. The Respondent had also agreed that processes signed by a name not being a name duly admitted to practice law in Nigeria is nothing but a mere worthless piece of paper.
?However, the Respondent counsel had made attempts to distinguish the writ complained of in this instant case and other
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?writ? on which a decision was taken by this Court and the apex Court. He said the distinguishing feature here is that the writ complained of was signed by J.A.O. Awomolo & Co but after the signature it was written: ?This writ issued by J.A.O. Awomolo Esq of J.A.O. Awomolo & Co.?
Let me emphatically mention that the issue in contention is the person who signed the writ and not the person who issued the writ. The scenario in this instant case has the semblance of Judgment delivered by XYZ but it was signed by XYZ & Co. It does not make the judgment valid.
It is settled law that where a statute has prescribed the mode of performing an act only that mode of performing the act competently is contemplated, otherwise the act will be a nullity. When the law has specified the mode of doing an act or following a step in proceeding that mode must be strictly complied with. See Abubakar v. Nasamu (No.2) (2012) 17 NWLR (PT. 1330) 523 (SC).
?The issue of the proper person to sign a legal process is so fundamental that when a legal process is authored by a person not authorized or recognized by the Legal Practitioners Act
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to sign the document or the Rules of the Court, the process is rendered invalid and it becomes null and void. The law is that once an initiating process or any other legal process is not signed or authorized either by the party in the suit or the Legal Practitioner on his behalf, then the process is invalid and the jurisdiction of the Court is ousted. It has been held in innumerable cases both by this Court and the apex Court that a law firm is not a legal person and therefore cannot sign and issue any legal process under the Legal Practitioners Act. The issuance of the writ in this instant case by J.A.O. Awomolo Esq does not cure the defect of signing the writ by J.A.O. Awomolo & Co.
It is well established that when a law is breached, any action carried out as a result of the breach or contrary to the dictates of the law is illegal null and void.
It follows that any Court process not signed or authorized by the person authorized to so author is fundamentally defective and cannot be corrected ? See Chief Fatai Agbebiyi & Ors v. Chief Sikiru Balogun Appeal No. CA/I/4/2012; Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521; Oketade v.
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Adewunmi (2010) 8 NWLR (pt. 1195) 63; F.B.N. Plc v. Maiwada (2013) 5 NWLR (pt. 1348) 444 and Igbenidion v. Watson & Sons Ltd (2018) 8 NWLR (pt. 1621) 374.
In this case the writ of summons the further – further amended statement of claim, the reply to the defendants amended statement of defence were all signed by J.A.O. Awomolo & 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 role of barristers and solicitors in the Supreme Court of Nigeria. The originating process not being initiated by due process everything founded upon it is a nullity. There cannot be a departure from the normal practice of signing an originating process. An originating process can only confer jurisdiction on the Court when it is duly or properly initiated in compliance with Sections 2 (1) and 24 of the Legal Practitioners Act 1975. The proceedings initiated by the respondent via the invalid originating process and hearing conducted thereon have been rendered null and void and ought to be struck out. The Suit No. HOG/11/93 and the judgment on it are hereby set aside and struck out.
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?In view of the fact that the Suit NO. HOG/11/93 and the Judgment on it has been set aside and struck out, it would amount to an academic exercise to consider the other issues in the preliminary objection or the substantive appeal. As Courts of law are not established to adjudicate or embark on academic exercise, other issues which have become academic are also liable to be struck out. Consequently the other issues in the preliminary objection and the three remaining issues in the substantive appeal are hereby struck out.
NONYEREM OKORONKWO, J.C.A.: Whenever a case or suit is purportedly initiated in breach of due legal process, such a suit is incompetent and a nullity.
This is the outcome in the suit; the subject of this appeal carefully examined by Abubakar Mahmud Talba, JCA. I agree.
FOLASADE AYODEJI OJO, J.C.A.: I have read before now in draft the lead judgment delivered by my learned brother, Abubakar Mahmud Talba JCA. I agree with the reasoning and conclusion therein.
The judgment of the lower Court in SUIT RO.HOG/156/91, which is the subject of the instant appeal was premised on a proceedings not
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initiated by due process. It was commenced by a Writ of Summons signed by J.A.O. Awomolo & Co, a law firm. The practice of signing court processes in the name of a law firm has been deprecated severally in a plethora of authorities including OKAFOR VS. NWEKE (2007) 3 SC (PT.11) 55; HAMZAT & ANOR v. SANNI & ORS(2015) 1-2 SC 1; BRAITHWAITE VS. SKYE PLC (2012) LPELR 15532 SC OKPE VS. FAN MILK PLC & ANOR,(2016) LPELR 425262.
In all of these cases the apex Court held that any suit initiated by a person who is not enrolled in the Register of the Supreme Court, not licensed to practice as a legal practitioner in the Federal Republic of Nigeria is a nullity.
In the instant appeal J.O.A. Awomolo & Co. who signed the originating process in Suit No. HOG/156/91 is not a legal practitioner duly licensed to practice law. Any proceeding conducted pursuant to that originating process is therefore a nullity. The judgment delivered in that suit is also a nullity as you cannot put something on nothing and except it to stand. It would collapse like a pack of cards. See MACFOY VS. UAC 1962 AC 152; C.C.B.PLC v. EKPERI (2007)3 NWLR (PT.1022) 493
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It follows therefore that this appeal has no leg to stand on. I agree with my learned brother that this appeal should be struck out and I so do. I abide by all other consequential orders made in the lead judgment. For the avoidance of doubt, the judgment of the lower Court in SUIT NO: HOG/156/91 is hereby set aside and the suit is also struck out.
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Appearances:
Akinsumbo S. Akande with him, Ademola Atejioye
For Appellant(s)
Respondent Counsel AbsentFor Respondent(s)
Appearances
Akinsumbo S. Akande with him, Ademola AtejioyeFor Appellant
AND
Respondent Counsel AbsentFor Respondent
