PRINCESS ROSEMARY YEWANDE ONILE-ERE v. MISS ADEDOYIN IYABO ONILE-ERE
(2016)LCN/8371(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/L/422/2014
RATIO
COURT: COURT JURISDICTION; THE IMPLICATION OF NOT DETERMINING THE QUESTION OF JURISDICTION FIRST BEFORE STARTING ANY PROCEEDINGS
The question of jurisdiction is very fundamental and should be determined first before starting any proceeding. If the Court proceeded without jurisdiction all proceedings however well conducted will amount to a nullity.
Ukwu vs. Bunge (1997) 8 NWLR (Pt.518) pg.527, Nonye vs. Anyichie (2005) 2 NWLR (Pt.910) pg. 623. PER. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: COURT JURISDICTION; DISTINCTION BETWEEN JURISDICTION AS A MATTER OF PROCEDURAL LAW AND JURISDICTION AS A AMTTER OF SUBSTANTIVE LAW
In this case, the Court granted the Respondent an order to amend his defective writ. The question is can a party amend a defective writ. A distinction must be drawn here between two types of jurisdiction namely: jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction on the Court where the Constitution or Statute or any provision of the Common Law says that the Court does not have jurisdiction. A litigant may submit to the procedural jurisdiction of the Court for instance where a writ has been served outside jurisdiction without leave. Ndayako vs. Dantoro (2004) 13 NWLR Pt.889 pg.187. PER. UZO I. NDUKWE-ANYANWU, J.C.A.
PRACTICE AND PROCEDURE: LEGAL PRACTITIONER ACT; THE STATUTORY DEFINITION OF A ‘ LEGAL PRACTITIONER’
Section 24 of the Legal Practitioners Act defines a ‘Legal Practitioner’ to be
“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 purpose of any particular office proceeding”
The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner he must have his name on the roll otherwise he cannot engage in any form of Legal Practice in Nigeria. PER. UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
PRINCESS ROSEMARY YEWANDE ONILE-ERE Appellant(s)
AND
MISS ADEDOYIN IYABO ONILE-ERE Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Lagos State delivered on the 18th day of December, 2013 by Hon. Justice
Bola Okikiolu-Ighile [Mrs.].
The 1st – 8th Claimants now 1st – 8th Respondents in this appeal by a Writ of Summon accompanied by Statement of Claim claimed against the 1st Defendant (now Appellant ) as follows:-
1. The Plaintiffs claim is for a declaration that the will and testament dated the 20th day of March, 2002 and purported to have been executed by Late Prince John Afolabi Onile-Ere is forged, illegal, null and void and cannot be enforced by the 1st Defendant to her benefit
2, An Order directing the Administrator-General of Lagos State to take over the management of the Estate of Late John Afolabi Onile-Ere pending the hearing and determination of the suit herein.
3. An Order directing the 1st and 2nd Defendants to account for the proceeds and administration of the Estate of the deceased till date,
4. An Order directing the Probate Registrar in the alternative to grant to the Plaintiffs Letter of
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Administration of the Estate of the said decease,
5. An Order restraining the Probate Registrar from granting probate of the purported will to the Defendants and if such had been granted, an order setting same aside.
6. An Order of injunction restraining the 1st and 2nd Defendants, their agents, and privies from interfering howsoever with the management of the deceased estate pending determination of this case, except to account for its proceeds and management prior to the filing of this suit”
In response, the Appellant filed her Statement of Defence, thereby joining issues with the Respondents. The case proceeded to trial. At the conclusion of trial, parties filed their respective final addresses. In the Appellant’s final address, the Appellant raised an issue of jurisdiction to the effect that the originating processes filed by the 1st- 8th Respondents were incompetent having been signed with a name of a law firm rather than a Legal Practitioner.
In response, the 1st – 8th Respondents applied to amend the originating process with a view to curing the defect. The Application was opposed by the Appellant.
In delivering its ruling, the trial
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judge granted the application for amendment to the dissatisfaction of the Appellant hence this Appeal.
In an Amended Notice of Appeal filed on 9th of June, 2015 and deemed properly filed on 24th of June, 2015, Two (2) grounds of appeal were filed. In accordance with the Rules of this Court, learned counsel for the Appellant filed its brief of argument on 30th of January 2015 but deemed properly filed on the 24th of June, 2015. No brief was filed by all the Respondents in this matter.
The Appellant in her brief has formulated two issues for determination of this appeal. The issues, as contained in the brief are:-
“1. Whether the signing of a Court process by any person other than the party or a legal practitioner duly enrolled at the Supreme Court of Nigeria is void ab initio as being contrary to the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Cap L.11, Laws of the Federation of Nigeria, 2004.
2. Whether a defective Originating process (in this case the Writ of Summons and Statement of Claim) signed by a person who is neither a Legal Practitioner nor a party to the suit can be cured by an amendment”
ISSUE 1
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Learned counsel for the Appellant referred to the originating processes filed in the name of the law firm Messrs Ekong, Odufuwa & Co. He contended that the Application for amendment was opposed by the Appellant and based on the objection by the Appellant the trial judge ought to have dismissed the suit rather than granting the amendment or amending the originating processes. He cited Section 2(1) and Section 24 of the Legal Practitioners Act, Cap L.11, Laws of the Federation of Nigeria, 2004 and submitted that the Originating processes (i.e. the Writ of summons and Statement of Claim) both signed by Messrs. Ekong, Odufuwa and Co, who is not a Legal Practitioner recognized by law, is a fundamental error which renders the processes and hence the proceedings incompetent and incurably bad. He relied on the cases of OKAFOR V. NWEKE (2007) 3 SC (PT.11) 55; MINISTRY OF WORKS AND TRANSPORT, ADAMAWA STATE & 4 ORS V. ALHAJI ISIYAKU YAKUBU & ANOR (2013) 1 SC 98.
ISSUE 2
It is the submission of learned counsel for the Appellant that the signing of the originating processes in the name of the law firm is not a mere irregularity capable of being
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cured by amendment. He referred to the Supreme Court decision as per M. S. MUNTAKA COOMASSIE JSC of MINISTRY OF WORKS AND TRANSPORT, ADAMAWA STATE & 4 ORS V ALHAJI ISIYAKU YAKUBU & ANOR (SUPRA) herein reproduced as follows:
“My lords, I would have ended this judgment here, but for the submission of the Respondent’s counsel that the said originating process was amended and as such it does not form basis upon which the case was tried and determined. The question that easily come to mind are that can an incompetent originating process or processes be amended, or can the incompetence of the process be cured by amendment? No doubt, the learned counsel of the Respondent pretends not to appreciate the fundamental nature of an originating process? The fatal effect of the signing of an originating process by law firm is that the entire suit was incompetent ab initio, It was dead at the point of filing… the originating process, as in this case, is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment.”
He therefore submitted that the non-compliance rendered the
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proceeding a nullity incapable of being amended and urged this Court to dismiss the suit as being incompetent ab initio.
The question before this Court is whether the writ signed by a law firm can foist jurisdiction on this Court. The Appellant as defendant in the Court below had raised an objection to the issue of jurisdiction. The Court granted the Respondent an order to amend his defective writ.
There is a great difference between a defective writ and an irregular writ.
The question of jurisdiction is very fundamental and should be determined first before starting any proceeding. If the Court proceeded without jurisdiction all proceedings however well conducted will amount to a nullity.
Ukwu vs. Bunge (1997) 8 NWLR (Pt.518) pg.527, Nonye vs. Anyichie (2005) 2 NWLR (Pt.910) pg. 623.
In this case, the Court granted the Respondent an order to amend his defective writ. The question is can a party amend a defective writ. A distinction must be drawn here between two types of jurisdiction namely: jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant
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can confer jurisdiction on the Court where the Constitution or Statute or any provision of the Common Law says that the Court does not have jurisdiction. A litigant may submit to the procedural jurisdiction of the Court for instance where a writ has been served outside jurisdiction without leave. Ndayako vs. Dantoro (2004) 13 NWLR Pt.889 pg.187.
In the suit in the Court below, the writ was signed by a law firm instead of a legal practitioner as prescribed by law. See Okafor vs. Nweke (2007) 10 NWLR Pt.1043 pg.521 where Onnoghen JSC put to rest the question of who can sign a legal process. My Lord Onnoghen, JSC held inter alia that the person to sign a legal process is one whose name is in the roll of lawyers. Section 2(1) of the Legal Practitioners Act Cap 207 of the LFN 1990 provides thus:
“Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll”
From the above provisions of this Act, it is clear that the person who is entitled to practice as a Legal Practitioner must have his name on the roll. It does not say that a law firm can sign.
Section 24 of the
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Legal Practitioners Act defines a ‘Legal Practitioner’ to be
“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 purpose of any particular office proceeding”
The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner he must have his name on the roll otherwise he cannot engage in any form of Legal Practice in Nigeria.
From the above it appears that the writ of summons and the statement of claim filed by the Respondent as Plaintiff in the Court were signed by the law firm of Messrs Ekong, Odufuwa & Co. Legal Practitioners.
This law firm is not a person as envisaged by Section 2(1) and Section 24 of the Legal Practitioners Act. Therefore the law firm is unknown to law and not in the nominal roll of lawyers.
It therefore means that the originating process upon which this suit was commenced in the Court below is incompetent in law. The fact of a law firm signing an originating process is not a mere technicality; it goes to the root of the jurisdiction of the Court.
The
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failure to commence proceedings with a valid Writ of Summons and Statement of Claim 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.
This case clearly borders on jurisdiction, the issue of jurisdiction and competence of the Court to adjudicate on the matter. See Keda vs. Ogunwole (2006) 13 NWLR Pt.m997 pg.377.
This issue is not a mere irregularity that can be waived by parties, or become regular by an amendment. N.U.B. Ltd. vs. Samba Pet. Co. Ltd. [2006] 12 NWLR Pt.993 pg.98.
The trial judge was therefore in error when it granted leave to the Plaintiff/Respondent to amend the defective originating process. The Respondent’s process cannot be amended as it is incurably bad.
This appeal therefore succeeds. It is allowed. The Ruling of the learned trial judge is set aside it being a nullity ab initio.
I make no orders as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in print the judgment written by my learned brother, Uzo I. Ndukwe-Anyanwu, J.C.A., with which I agree absolutely with emphasis that an
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incurably defective originating process cannot be amended vide Ministry of Works and Transport, Adamawa State and Ors. v. Yakubu and Anor. (2013) 6 NWLR (Pt.1351) 481 at 495 – 496. Therefore the Court below was wrong in granting an amendment of the mortally defective originating process. I too would allow the appeal and abide by the consequential order(s) contained in the lead judgment.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read in advance the lead judgment just delivered by my learned brother, UZO I. NDUKWE-ANYANWU JCA. It is now well established as held by the SC in Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521 that a law firm is not a legal practitioner within the meaning of the Legal Practitioners Act and any process required to be signed by a legal practitioner signed by a law firm is incompetent. Where it is on originating process it is incurably defective and cannot be amended. The Lower Court erred in granting an order to amend the process. I too allow the appeal and abide by the consequential orders in the lead judgment of my learned brother Ndukwe-Anyanwu JCA.
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Appearances
J. O. Abass with him, M. O. AbariFor Appellant
AND
–For Respondent
