ONUN OTU ECHU IGIRIGA V. ELDER EFFIONG OKON BASSEY & ORS. (2013)

ONUN OTU ECHU IGIRIGA V. ELDER EFFIONG OKON BASSEY & ORS.

(2013)LCN/6006(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 5th day of March, 2013

CA/C/174/2009

RATIO

JURISDICTION: OBJECTION TO JURISDICTION: IN WHICH SITUATIONS CAN SUCH OBJECTIONS BE RAISED?

An objection to the jurisdiction of a court can be raised in any of the following situations:
“(a) On the basis of the statement of claims; or
(b) On the basis of evidence received:
(c) By motion supported by affidavit setting out the facts relied on; or
(d) On the face of writ of summons where appropriate as to the capacity in which the action was brought, or against who the action was brought.”
Guaranty Trust Bank Plc vs. Fadco Industries Ltd. (2005) ALL FWLR Pt.287 page 913; Nnonye vs. Anyichie (2005) 2 NWLR Pt.910 page 623; NDIC vs. CBN (2002) 7 NWLR Pt.272 Page–; Arjay Ltd. Airline Management Support Ltd. (2003) 2 SCNJ page 148.PER UZO I. NDUKWE-ANYANWU J.C.A.

COMPETENCE OF A COURT: WHEN THE COURT CAN BE SAID TO BE COMPETENT

WORDS AND MEANING:” SHALL”
The word shall in this subsection is mandatory. The Registrar shall seal every originating process. The sealing of this originating process is a condition precedent. Where the Registrar fails to seal an originating process it robs the court of jurisdiction to entertain this unsealed writ. It is even more important for the Registrar to seal the process as it is, an originating process. All the subsections of Order 8 are mandatory. A writ issued without the Registrar’s seal is incompetent and cannot be cured. Where the word shall is used in any legislature it means it is mandatory. There is no other meaning that can be ascribed to it. The word shall means that any failure on the part of the Registrar to seal the writ of summons, invalidates the writ.
A writ unlike other processes is an originating court process and it requires the Registrar’s seal. NNPC vs. Elumah (1997) 3 NWLR Pt.492 page 195: BBN vs. Olayiwola (2001) 6 WRN page 141.PER UZO I. NDUKWE-ANYANWU J.C.A.

ORIGINATING PROCESS: EFFECT OF FAILURE TO SEAL AN ORIGINATING PROCESS

Failure to seal an originating process is not a mere irregularity. It is a condition precedent that foists jurisdiction on the court. This defect is therefore fundamental and robs the court of the necessary jurisdiction to continue.
In order to ascertain whether the Court has jurisdiction to entertain a matter, the court is guided by the claim before it, by critically looking of the writ of summons and the statement of claim. Gafar vs. Government of Kwara State (2007) 4 NWLR Pt.1024) page 375: Onuonoh vs. K.R.P.C. (2005) 6 NWLR.PER UZO I. NDUKWE-ANYANWU J.C.A.

JURISDICTION: WHEN THE COURT IS DEPRIVED OF JURISDICTION BECAUSE THE ORIGINATING PROCESS IS INCOMPETENT, WHAT IS THE RIGHT ORDER TO MAKE?
Where the court has no jurisdiction to entertain a case because the originating process is incompetent, the right order to make is one of striking out. Okolo vs. UBN Ltd. (2004) 3 NWLR Pt.859 page 87: Johnson vs. Lufodeju (2002) 8 NWLR Pt.768 page 192.The court was therefore right in striking out the suit. Having held that the writ of summons is incompetent, the court does not have the necessary vires to continue to adjudicate and consider the second issue. It would be an exercise in futility.
Where the jurisdiction of the court is challenged, the court is entitled under Section 6 of the 1999 Constitution to consider the plaintiff’s claim before it in order to decide, whether it has the jurisdiction to entertain it. Adeleke vs. OSHA (supra); Egbobu vs. I.G.P. (2006) NWLR Pt.972 page 146.PER UZO I. NDUKWE-ANYANWU J.C.A.

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

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

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

Between

ONUN OTU ECHU IGIRIGA Appellant(s)

AND

1. ELDER EFFIONG OKON BASSEY
2. MR. AJAH IBIANG AJAH
3. MR. EKPE OWAI IBE
4. OFEM AJAH OKOI
5. MR. IBE IKWA
6. CHIEF ENI EKO
7. MR. AJAH OFEM UBANGA
8. MR. NKANU EFUT Respondent(s)

UZO I. NDUKWE-ANYANWU J.C.A., (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting in Akamkpa delivered on 7th day of July, 2009 in suit No.HK/1/2009. The Appellant as plaintiff took out a writ against the Respondents as defendants and claimed the following:
“1. Declaration that the 1st Defendant not being a Traditional Ruler within the contemplation of the Traditional Rulers Law of Cross River State has no legal or traditional authority to perform the functions of a Traditional Ruler.
2. A DECLARATION that the Claimant is the duly certificated and recognized Clan Head of Adim and Onun Usor of Adim (Onun Arum).
3. AN ORDER setting aside the document titled, “the indigenous concerned citizens peace committee of Adim, Biase Local Government Ares of Cross River State of Nigeria resolutions reached and recommendations at a general meeting of Adim people held at the village square (Ogbusor) in Adim on the 6th of December, 2008″, for not being the resolution of Adim people and for being illegal, malicious and contrary to the Traditional Rulers Law of Cross River State.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, particularly the 1st defendant from taking over the functions of the claimant and from performing any of the functions or duties of Onun Arum or Choirman of Adim Town Council, as contained in the purported resolution of 6th December, 2008, which are the traditional functions, duties and responsibilities of the claimant as a Clan Head of Adim or Onum Usor of Adim (Onun Arum) or Chairman, Adim Town Council.
5. AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, either by themselves, agents, assigns, or servants from interfering with the performance of the claimant’s traditional and/or statutory functions and duties as the Clan Head of Adim or Onun Usor of Adim (Onun Arum), or in any way or manner from harassing, intimidating or disturbing the claimant in the performance of his duties as the Clan Head of Adim.
6. AN ORDER SETTING ASIDE ALL THE ANNOUNCEMENT made by the defendants, their agents, servants, and assigns, purporting to dethrone the claimant as the Clan Head of Adim and Onun Usor of Adim or Onun Arum.
7. The sum of Fifty Million Naira (N50,000,000.00) only being damages for the injury, humiliation and for the unlawful interference with the traditional and statutory functions and responsibilities of the claimant by the defendants.”
Upon service of the writ of summons and other processes on the Respondents as defendants, they entered a conditional appearance on 27th day of February, 2009. On 10th day of March, 2009 the Respondents filed o motion on notice seeking on order to set aside the writ of summons on two alternative grounds namely:
“(a) The writ of summons does not comply with the mandatory requirements of Order 8 rule 2(1) and (3) of the High Court (Civil Procedure) Rules;
(b) The mode of commencing the action is not by writ of summons, pursuant to Order 7 rule 1(a) and (c), but by way of application for Judicial Review under Order 40 rule 1(2) and (sic) of the High Court (Civil Procedure) Rules, 2004.”
See page 47 of the record.
In support of this motion is a 4 paragraphs affidavit. Also filed is a written address. The Appellant filed his Reply to the Preliminary Objection on 17th day of March, 2009. A rejoinder was filed by the Respondents on 24th day of March, 2009 on points of law. The addresses were adopted by both parties on
30th day of March, 2009. On the 7th day of July, 2009 the learned trial Judge delivered his considered “Final Ruling” striking out the Appellant’s writ of summons. The main thrust of his judgment was that:
‘(i) The appellant did not seal the writ of summons with the seal of the High Court of Cross River State in accordance with Order 8 rule 2(1) and (3) of the High Court of Cross River State (Civil Procedure) Rules,
2008.
(ii) He did not commence the suit by way of judicial review as provided in Order 40 rule 2(b), (c) of the same Rules.”
Being dissatisfied, the Appellant filed his notice with three grounds of appeal. The Appellant filed his Appellant’s brief and articulated two issues for determination as follows:
“1. Whether the decision of the learned trial Judge striking out the appellant’s suit because he failed to seal the writ of summons is not a technical and mechanical interpretation and application of the provisions of Order 8 rule 2(1) of the High Court of Cross River State (Civil Procedure) Rules, 2008? (Grounds 1 and 3).
2. Whether the learned trial Judge was right in his interpretation and application of Order 40 of the High Court of Cross River State (Civil Procedure) Rules, 2008 and the authorities of Obioha vs Military Administrator of Imo State (1998) 10 NWLR (Pt. 569) 295 and Lawani vs. Oladokun (2003) FWLR (Pt. 150) at 1759 – 1760 to the case at hand? (Ground 2).”
The Appellant was granted on order on 12th day of Nov ember, 2012 to hear this appeal on the Appellant’s brief alone.
On the 11th February, 2013, this appeal was heard on the Appellant’s brief alone. The learned counsel to the Appellant submitted that the learned trial Judge compared Order 5 rules 1 and 15 of the High Court of Cross River State (Civil Procedure) Rules, 1987 and Order 8 rule 2(1) of the High Court of Cross River State (Civil Procedure) Rules, 2008. He came to the conclusion that while the old Rules required the Registrar to sign the originating process, the new Rules imposed a duty on him to seal the originating process. The learned trial Judge held as follows:
“Consequently, I hereby find and hold that the sealing and NOT signing of an originating process, is what (sic) required under Order 8 rules 2(1) of the Cross River State High Court (Civil Procedure) Rules, 2008. Thus, the claimant/respondent having failed to seal his process as required by the rules cannot be adjudged to have properly taken out the process, so as to have it considered.”
Counsel argued that with her signing in the old Rules and sealing in the new Rules, it is the duty of the Registrar. Counsel referred the court to Order 8 rule 2(1) which provides as follows:
“2(1) The Registrar shall seal every originating process whereupon it shall be deemed to be issued.”
Counsel reiterated that the duty to seal the writ was that of the Registrar. Having failed to seal the writ, the claimant/Appellant would not be made to suffer the ills of this failure. See Global Excellence Communication Ltd. vs. Duke (2007) 16 NWLR Pt.1059 page 22: Izedonwen vs. UBN Plc (2010) 6 NWLR Pt.1295 page 1. Counsel referred the court to the case of U.T.C. vs. Pamotei FWLR Pt.129 page 1557 or (1989) 2 NWLR Pt.103 page 244 where Belgore, JSC held:
“Rules of procedure are made for the convenience and orderly hearing of cases in court. They are made to hold the cause of justice and not to defeat justice. The rules are therefore aids to the court and not masters of the court. For court to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the courts slavish to rules. This certainty is not the eaison d’etre of rules of court.”
C.O.P. vs. Ayi (2005) 4 WRN Page 123; (2005) All FWLR Pt.286 page 679; Abubakor Tatari Ali Polytechnic vs. Maira (2005) ALL FWLR Pt.284 page 250.
Counsel further referred the court to Order 7 rule 3 High Court (Civil Procedure) Rules of Cross River State, 2008 which specifies the form o writ of summons should take. It provides that:
“Except in the cases in which different forms are provided in these Rules, the writ of summons shall be in Form 1 with such modifications or variations as circumstances may require.”
Counsel argued that the claimant’s writ was a replica of Form 1 as provided. Counsel stated that there was no place for the seal. There was only a provision for Registrar’s signature and not the seal. Counsel insisted that the failure to seal was that of the Registrar and not of the claimant/Appellant. Therefore the Appellant should not be penalized for such a failure. Shuaibu vs. Muazu (2007) 7 NWLR Pt. 1033 page 271; Famfa Oil Ltd. vs. Attorney-General of Federation (2003) 18 NWLR Pt. 852 page 453; S.C.C. (Nig.) Ltd. vs. Elemodu (2005) 7 NWLR Pt.923 page 28: Duke vs. Akpabuyo Local Government (2005) 19 NWLR Pt.959 page 130; C.B.N. vs. Adedefi (2004) 13 NWLR Pt.890 page 226.
Counsel therefore urged the court to resolve this issue in favour of the Appellant.
The Respondents had of the earliest opportunity objected to the jurisdiction of the court to deal with this suit. The Respondents as defendants entered a conditional appearance. After that the Respondents filed a motion on notice as a preliminary objection. In it, the Respondents’ questioned the jurisdiction of the court to hear the suit as it was constituted. In effect, the Respondents questioned the jurisdiction of the court.
Where ever, the jurisdiction of the court is questioned , the court will deal with it immediately. Where on objection is taken to the jurisdiction of the court, it is of ways neater tidier, to deal with it first under Section 6 of the 1999 Constitution. In doing this, the court has to look of the Appellant’s writ of summons and statement of claim before the court to decide whether it has the jurisdiction to entertain it. Adeleke vs. O.S.H.A. (2006) 16 NWLR Pt.1006 page 608; Egbobu vs. I.G.P. (2006) 5 NWLR Pt.972 page 162.

It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes on exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the
proceedings was conducted.
Umanah vs. Attah (2006) 17 NWLR (Pt 1009) 503
Madukolu vs. Nkemdilim (1962) 1 All NLR 587
Skenconsult vs. Ukey (1981) 1 SC 6
Benin Rubber Producers Ltd vs. Ojo (1997) 9 NWLR (Pt 521) 388
Magaji vs. Matari (2000) 5 SC 46
Alao vs. African Continental Bank Ltd (2000) 6 SC (Pt 1) 27.
Order 8 rule 2(1) provides as follows:
2(1) The Registrar shall seal every originating process whereupon it shall be deemed to be issued.”
The Registrar shall seal every originating process whereupon it shall be deemed to be issued.
The word shall in this subsection is mandatory. The Registrar shall seal every originating process. The sealing of this originating process is a condition precedent. Where the Registrar fails to seal an originating process it robs the court of jurisdiction to entertain this unsealed writ. It is even more important for the Registrar to seal the process as it is, an originating process. All the subsections of Order 8 are mandatory. A writ issued without the Registrar’s seal is incompetent and cannot be cured. Where the word shall is used in any legislature it means it is mandatory. There is no other meaning that can be ascribed to it. The word shall means that any failure on the part of the Registrar to seal the writ of summons, invalidates the writ.
A writ unlike other processes is an originating court process and it requires the Registrar’s seal. NNPC vs. Elumah (1997) 3 NWLR Pt.492 page 195: BBN vs. Olayiwola (2001) 6 WRN page 141.
The seal as envisaged by the Rules is a condition precedent. See Chairman LEDB vs. Adewale & Ors. (1966) NWLR page 72 where Ikpeazu, J., held:
“This suit was instituted by means of an originating summons which was not sealed. It is clear in law that an originating summons must be sealed, but this was not done in this case. After the lapse of several months this omission was noticed and an effort was made to put a seal on the unsealed summons which has been in the court file. I have asked counsel to satisfy me that this late sealing will have the effect of curing the omission retrospectively. This was not done I do not think that this case is properly before the court and therefore strike it out…”
Nwabueze vs. Obi-Okoye (1988) 3 NSCC page 53, Kida vs. Ogunmola (2006) All FWLR Pt.327 page 402 where it was held by the Supreme Court that:
“…The validity of the issue of the originating process is fundamental to the competence of a suit. Therefore, failure to commence a proceeding with a writ of summons validly issued goes to the root of the case and any order emanating from such proceeding is liable to be set aside as incompetent and a nullity. Such a flaw clearly borders on the issue of jurisdiction and the competence of the court to adjudicate on the matter…”The learned counsel for the Appellant argued that the Appellant has done what he is expected to do by filing his writ. It is left for the Registrar to seal the writ of summons. Having failed to, the Appellant is not to suffer for the negligent acts of the Registrar. It is the duty of the claimant/Appellant to ensure that every copy of the writ of summons is duly sealed by the Registrar.
Failure to seal an originating process is not a mere irregularity. It is a condition precedent that foists jurisdiction on the court. This defect is therefore fundamental and robs the court of the necessary jurisdiction to continue.
In order to ascertain whether the Court has jurisdiction to entertain a matter, the court is guided by the claim before it, by critically looking of the writ of summons and the statement of claim. Gafar vs. Government of Kwara State (2007) 4 NWLR Pt.1024) page 375: Onuonoh vs. K.R.P.C. (2005) 6 NWLR
Pt.921 page 393 Tukur vs. Government of Gongolo State (1989) 4 NWLR Pt.117 page 517.The trial court was right in upholding the preliminary objection of the Respondents. The suit in the High Court was struck out rightly.
Where the court has no jurisdiction to entertain a case because the originating process is incompetent, the right order to make is one of striking out. Okolo vs. UBN Ltd. (2004) 3 NWLR Pt.859 page 87: Johnson vs. Lufodeju (2002) 8 NWLR Pt.768 page 192.The court was therefore right in striking out the suit. Having held that the writ of summons is incompetent, the court does not have the necessary vires to continue to adjudicate and consider the second issue. It would be an exercise in futility.
Where the jurisdiction of the court is challenged, the court is entitled under Section 6 of the 1999 Constitution to consider the plaintiff’s claim before it in order to decide, whether it has the jurisdiction to entertain it. Adeleke vs. OSHA (supra); Egbobu vs. I.G.P. (2006) NWLR Pt.972 page 146.
I have held that the court lacks the jurisdiction and therefore cannot continue to entertain the alternative prayer.
Issue one is therefore resolve against the Appellant. This appeal is unmeritorious and therefore dismissed. I affirm the decision of the lower court in upholding the preliminary objection and striking out the Appellant’s claim. I make no orders as to costs.

JOSEPH TINE TUR, J.C.A.: The facts leading to this appeal have been ably summarized by my Lord Uzo I. Ndukwe-Anyanwu, JCA in the lead judgment. I agree with the conclusion arrived at having read an advance copy of the judgment. I shall add the following comments of mine by drawing attention to the provisions of order 7 rule 8(1) – (4) and order 8 rule 1-4 of the High Court (Civil Procedure) Rules, 2008. Order 7 rule 8(1)-(4) reads as follows:
“8(1) An originating summons shall be in the Forms 3, 4, or 5 to these Rules and shall be accompanied by a Notice of Appointment in Form 6, with such variations as circumstances may require. It shall be prepared by the applicant or his Legal Practitioner and shall be sealed and filed in the Registrar, and when so sealed and filed shall be deemed to issued.
(2) An originating summons shall be accompanied by:
(a) An affidavit setting out the facts relied upon;
(b) All the exhibits to be relied upon;
(c) A written summons in support of the summons
(3) the person filing the originating summons shall leave at the Registry sufficient number of copies thereof together with the document in sub-rule 2 above for service on the respondent or respondents.
(4) An originating process shall not be altered after it is sealed except upon application to a Judge.”
Order 8 Rule 1-4 reads as follows
“1 Originating process shall be prepared by a claimant or his Legal Practitioner, and shall be clearly printed on white paper of good quality.
(2) A claimant or his Legal Practitioner shall, on presenting any originating process for sealing any originating process for sealing, leave with the Registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.
(3) Each copy shall be signed by the Legal Practitioner or by a claimant where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.
5. The Registrar shall, after sealing an originating process, file it and note on it the date and time of filing and the number of copies supplied by a claimant or his Legal Practitioner for service on the defendant. The Registrar shall then make an entry of the filing in the cause book and identify the action with a suit number that may comprise an abbreviation of the Judicial Division, a chronological number and the year of filing.
4. The Registrar shall promptly arrange for personal service on each defendant of a copy of the original process and accompanying documents duly certified as provided by Rule 2(3) of this Order.”
Order 7 rules 8(1)-(4) and Order 8 rules 1-4 of the Rules (supra) have clearly set out the role of the claimant or his Legal Practitioner and that of the Registrar of the High court. The two orders enjoin the claimant or the Legal Practitioner to prepare the originating process which shall be clearly printed on white paper of good quality. The purpose of going to the Registry is to present the originating process ‘for sealing” by the Registrar. The claimant or Legal Practitioner is to leave with the Registrar as many copies of the originating process as there are defendants to be served.
The Registrar’s sealing of every originating process constitutes issuance of the originating process by the Court to commence proceedings in the High Court of Justice in cross River state. In Mobil Oil Nigeria Ltd. vs. Alhaii Hameed Adebisi Iiaiya (1964) L.L.R. 60 Adefarasin J., held at page 61 thus:
“I now come to the second point which is, to my mind, really directed at the word “writ”. In the case in hand, the Plaintiff’s application for a writ was filed on the 9th of March, 1963. The writ was not in fact issued until the 21st March, 1963, when Caxton-Martins, Ag. J., signed the writ of summons. The summons, dated the 21st of March, 1963, was, according to the endorsement by the Bailiff, served on the Defendant on the 18th clay of March, 1964. The whole point, therefore, turns on the meaning of the words in order II rule 5:
“..In case service of the writ shall not have been effected within one year from the date hereof.’
the emphasis being the word “writ” what then is the meaning of “writ’? When does a writ of summons arise? Is it when the application for the writ is filed by the Plaintiff or is it when the judge signs the writ of summons? The clear answer to my mind is that the writ commences when a judge or magistrate signs the summons. This view is supported by Order II rule 1 which reads as follows:
‘Every suit shall be commenced by a writ of summons signed y a judge, magistrate or other officer empowered to sign summons. The writ of summons shall be issued by the Registrar or other officer of the Court empowered to issue summons on application..”
A claimant served an unsealed originating process by the Registrar is put on notice that the originating process is not deemed to have been issued for the purpose of commencing legal proceedings in the High Court of Justice in Cross River State and ought to take the appropriate action to remedy the defect or error. For example, if the person is the defendant to have it timeously set aside. Only an originating summons that has been sealed by the Registrar is to be “deemed to be issued” under the Rules (supra). upon sealing the originating process is put forth as the official process of the Court. To “Issue” is to put forth officially; to send out or distribute officially. The purpose of sealing a process is to secure or prove its authenticity. That the originating process has legal consequences. See Blacks Law Dictionary, 9th edition, pages 908 and 1466. Only the legislature can tell why every originating process “shall” be sealed by the Registrar. The duty of the Court is to construe the provisions of Order 8 rules 1-4 of the High Court (Civil Procedure) Rules, 2008 bearing in mind the legislative objects and intentions. See Osho vs. Philips (1972) 1 All NLR (Pt.1) 276 at 285; Odutola Holdings Ltd. vs. Ladejobi (2006) 12 NWLR (Pt.9941 321. I shall adopt as mine the words of Nnaemeka-Agu, J., (as he then was) in Okoye & Ors. vs. Okoye & Ors. (1975) 5 ECSLR 156 where His Lordship held at Page 157 that:
“…the Court is never called upon to pronounce upon the reasonableness or otherwise of a statute or rule, but to interpret and enforce it. The rule is part of our rules and I consider it necessary that I shall enforce it until it is amended or repeated.”
The use of seals in legal transactions is fast becoming old fashioned, obsolete or archaic. Some countries or jurisdictions no longer require the sealing of originating processes or documents to give them legal approval or authenticity. For instance, in Restatement of Contracts, 2nd edition, 1979, paragraph 96 appears the following commentary on the use of seal:
“The use of seal in England seems to have begun after the Norman Conquest, spreading from royalty and a few of the nobility to those of lesser rank Originally a seal often consisted of wax bearing the imprint of an individualized signet ring, and in the seventeenth century Lord Coke said that wax without impression was not a seal. But in the United States the Courts have not required either wax or impression, impressions directly on the paper were recognized early and are still common for notarial and corporate seals, and gummed wafers have been widely used. In the absence of statute decisions have divided on the effectiveness of the written or printed word ‘seal, the printed initials ‘L.S.’ (locus sigilli, meaning place of the seal), a scrawl made with a pen (often called a ‘scroll’) and a recital of sealing. Most states in which the seal is still recognized now have statutes giving effect to one or more such devices.”
Again in Land Law, 2nd edition, 1988 pages 481-482 appears the following observation by the author, Peter Butt:
“The time-honoured form of seal was a blood of wax at the foot of the document, bearing an imprint of some kind, often a crest or motto. The use of wax was not, however, necessary for a seal, and any mark or impression on the paper was sufficient as long as it was made with the intention of affixing a seal. Recent English cases have been willing to find the necessary intention in circumstances where Courts in the past would almost certainly have declined, so much so that it may now be the common law that a document purported to be executed as a deed but lacking actual sealing will be regarded as sealed as long as it contains a printed or written indication of where the mark or impression constituting the seal should be placed if it were Co be affixed.”
The sum total of what I have been driving home is that if the lawmaker in this compute age is stall of the opinion that the approved method of authenticating every originating process is by the Registrar’s seal, so be it. Once the originating process has not been sealed by the Registrar of the High Court the legal consequence is that the case has not come before the Court initiated by due process of law, and upon the fulfillment of a condition precedent to the exercise of the Court’s jurisdiction. Any defect in competence in such a circumstance is fatal no matter how well the proceedings may be eventually conducted or determined. See Adeigbe & Anor. vs. Kusimo & Ors. (1965) NMLR 284:. Madukolu vs. Nkemdilim (1962) 1 All NLR 587 at 595; Johnson vs. Osaye (2001) FWLR (Pt.68) 1197 at 1209-1210.
A Court must have jurisdiction before it can determine the rights of the parties. See Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76. Where objection to the jurisdiction of a Court is properly raised and upheld, the remedy is to strike out the originating process. See Nigerian Leather Works Ltd. vs. Voss (1977) NWLR 220 and
Ajayi vs. Odunsi (1959) 4 FSC 189.
For these and the more detailed reasons in the lead judgment, I also uphold the ruling of the learned trial Judge. This appeal lacks merit and is dismissed.

ONYEKACHI A. OTISI, J.C.A: I have had the opportunity of reading in draft the Judgment just delivered by my learned Brother Ndukwe-Anyanwu JCA. I am in complete agreement with the reasoning and conclusion. I have nothing further to add.
I abide with the Order affirming the decision of the lower Court in striking out the suit.

Appearances

M.E. Ukweni, Esq.
M.T. Otu, Esq.
P.A. Akpoke, Esq.
M.O. Mba,Esq.
P.O. Arikpo,Esq.
C.A.C Ejijie, Esq.
O.J. Abu,Esq.For Appellant

AND

For Respondent