RAHAMANIYYA GLOBAL RESOURCES LIMITED v. CENTRAL BANK OF NIGERIA
(2016)LCN/8271(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of March, 2016
CA/S/72/2012
RATIO
COURT: THE RULES OF THE COURT CONCERNING THE OBJECTION TO THE GROUND OF APPEAL AND WRITS OF SUMMONS
I need to state right away that the objections to the grounds of appeal and issue ought to have been taken via a notice of preliminary objection which learned Respondent’s counsel failed to file as required by the Rules of this Court See NSIRIM V. NSIRIM (1990) 3NWLR (PT 138) 28 5 at 296; DADA V. DOSUNMU (2006) 18NWLR (PT 1010) 134. See Order 10 of the Court of Appeal Rules. I shall therefore discountenance the objections to the grounds of appeal and the issue formulated. I have deeply considered the arguments canvassed on both sides as well as the contents of the record of appeal. The relevant High Court Rules of this appeal are Order 5 Rules 1, 2 (1) and 15 of the Sokoto State High Court Civil Procedure Rules.
Order 5 Rule 1 of the said Rules state
Writ of the summons to be issued by the Registrar.
(1) A writ of summons shall be issued by the Registrar or other officer of the Court empowered to issue summonses, an application. the application shall ordinarily be made in writing by the plaintiffs solicitor by completing form 1 in the Appendix to these Rules but the Registrar or the other officer as aforesaid, where the applicant for a writ of summons is illiterate or has no solicitor, may dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared signed and issued?
Order 5 Rule 2 (1) of the Sokoto State High Court (Civil Procedure) Rules state
?Where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the plaintiff?s address and the legal practitioner name or a firm and a business address of this within the jurisdiction and also, if the legal practitioner is the agent of another the name or firm and address of his principal. per. TUNDE OYEBANJI AWOTOYE, J.C.A.
STATUTORY INTERPRETATION; THE IMPORT OF THE WORDS ‘ISSUE’ AND ‘SIGN’ AS USED IN THE SOKOTO RULES
Order 5 Rule 15 of the same Rules also read Issue of writ takes place upon its being signed by the Registrar or other officer of the Court duly authorized to sign the writ. The word ‘Issue’ and ‘Sign’ as used in the Sokoto Rules are not synonymous neither are they inter changeable.
The word ‘Issue’ is defined in Black’s Law Dictionary (with pronunciations) 6th Edition as ‘to send out officially to deliver, for use or authoritatively’’ The word Sign is defined in the same Dictionary as ‘To affix one name to a writing or instrument, for the purpose of authenticating or executing it or to give it effect as one’s act’. per. TUNDE OYEBANJI AWOTOYE, J.C.A.
COURT: WHO IS AUTHORIZED TO ISSUE OR DELIVER FOR USED, WRIT OF SUMMON ACCORDING TO THE SOKOTO RULES
Clearly from the Sokoto Rules only the Registrar or authorized Court official is authorized to issue or deliver for use, a writ of summons. Any other person that seeks to do it is committing a nullity or an exercise in futility. The issuance of the writ is done when the said Court official signs the writ of summons. An unissued writ is a mere sheet of paper without any legal relevance. See KIDA V. OGUNMOLA (2006) 13 NWLR (PT 997) By virtue of Order 5 Rule 12 (1) of the same Rules, a writ of summons, where the plaintiff is represented by a legal Practitioner shall be so endorsed, with the plaintiff’s address and the legal practitioner’s name or firm and the business address of the practitioner within the jurisdiction. per. TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICE
PAUL ADAMU GALINJE justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE justice of The Court of Appeal of Nigeria
MUHAMMED L. SHUAIBU justice of The Court of Appeal of Nigeria
Between
RAHAMANIYYA GLOBAL RESOURCES LIMITEDAppellant(s)
AND
CENTRAL BANK OF NIGERIARespondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal of the defendant in Suit No.SS/99/2014 against the decision of the High Court of justice 111 Sokoto delivered on 19/05/2015.
On 3/11/2014, the plaintiff at the lower Court initiated the action by causing the writ of summons to be issued in respect of the claim endorsed thereon. The said writ of summons, apart from having been signed by the Registrar of the lower Court was also signed by learned counsel for the plaintiff, Abdulkadir Mustapha of A. M. Abdulkadir & Co. In addition to the above the following was also endorsed on the writ
“??This writ was issued by the plaintiff through its solicitor A. M. Abubakar & Co No C -?? 21 Zaria Road, Kano Legal Practitioners for the plaintiff who reside in Sokoto.”
It is against the above that the defendant, now appellant, entered conditional appearance and filed notice of preliminary objection.
After hearing the parties, the learned trial Judge, on 19/05/2015 ruled inter alia thus
“??The case of SLB Consortium Ltd (supra) demonstrate the need
and importance that a Writ of Summons must be signed by a legal Practitioner. In the case at hand Learned Plaintiff counsel did signed the writ of summons which learned defence counsel has no issue on that. I therefore, will and do agree with the submission of the learned Plaintiff counsel that the above case relied on by the defence, supports case of the plaintiff.
Be that as it may be, can the issue raised by learned Defence Counsel divest this Court of jurisdiction to entertain this suit? I do not think so having regard to Order 2.1 (1) High Court Civil Procedure Rules of 1993. The provisions states:-
“??Where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirement of the rules, whether in respect of time, place. Manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any other document, judgment or Order therein”
The slip identified is an irregularity that is curable as
such, same cannot be the basis this Court will surrender its jurisdiction to entertain this matter.
In conclusion, it is here ordered the plaintiff should effect the necessary correction highlighted as apparent on the writ of summons to wit, a wit can only be issued by a legal Practitioner and not a law firm.
Consequently, from the foregoing, the preliminary objection by learned defence counsel is here overruled. This case will proceed for determination on merit.”
The appellant filed a Notice of Appeal on 1/6/2015 challenging the ruling of the lower Court on two grounds.
Ground One
The lower Court erred in law when it treated the signing of the writ of summons by a law firm instead of legal practitioner as mere irregularity.
PARTICULARS
A. The writ of summons filed by the respondent was not signed by a legal practitioner.
B. The writ of summons signed by a law firm is an incompetent process in law.
C. The lower Court itself has admitted in its ruling that a writ can only be issued by a legal practitioner and not a law firm.
Ground Two
The lower Court erred in law when it ordered the
plaintiff to effect the necessary corrections on its writ of summons when there was no competent writ before the Court.
A. The lower Court has also admitted that there is an apparent problem with the writ filed by the plaintiff.
B. The lower Court has admitted in its ruling that a writ of summons could not be issued by a law firm, but a legal practitioner.
C. That the proper order to be made by the lower Court in the circumstance was to strike out the entire writ of summons not an order for correction.
D. The order of correction made by the lower Court was just like putting something on nothing and expected it to stand.?
The record of appeal was transmitted to this Court on 20/8/15. After its transmission, learned counsel on both sides filed briefs of argument.
The appellant?s brief of argument was filed on 27/8/2015. The brief was settled by M. A. Sambo learned counsel for the appellant. Learned counsel formulated one sole issue for determination to wit:-
?Whether the lower Court was right when it treated the signing of a writ of summons by a law firm as mere irregularity that could be cured by
correction of writ.?
Learned appellant?s counsel referred to the Supreme Court cases of MINISTRY OF WORKS AND TRANSPORT ADAMAWA STATE & 4 OTHERS V. ALHAJI ISIYAKU YAKUBU & ANOTHER (2013) 6NWLR 481 at 486; AND ODEJAYI & ANOTHER V. HELEN INDUSTRIES LTD (2013) LPERL ? 20368.
He submitted that the ruling of the learned trial Judge overruling his objection was a fatal error in the light of the above authorities. He urged the Court to therefore set aside the decision of the lower Court.
The respondent?s brief of argument was filed on 10/9/2015. It was settled by Abubakar Mustapha on behalf of the respondent. Learned counsel formulated one issue for determination as follows:
?Whether the lower Court was right in overruling the appellant?s Notice of Preliminary Objection on the ground that it was the respondent?s counsel that signed the writ of summons and not the law ? firm.?
Learned counsel submitted that by virtue of provisions of Order 5 Rule 1 of the Rules of the lower Court, a writ of summons could be issued by the registrar of the lower Court or other officers of the
lower Court and the issue took place upon the signing of the writ by the Registrar or other officers of the lower Court duly authorized to sign the writ and this was fulfilled by the Respondent?s counsel.
Learned counsel further attacked the issues formulated and the ground of appeal as not arising from the decision of the lower Court. He urged the Court to strike out the grounds and the issue. He cited INTEGRATED BUILDERS V. DOMZAG LTD (2005) NWLR (PT 909) 97 at 112 ? 113.
I need to state right away that the objections to the grounds of appeal and issue ought to have been taken via a notice of preliminary objection which learned Respondent?s counsel failed to file as required by the Rules of this Court See NSIRIM V. NSIRIM (1990) 3NWLR (PT 138) 28 5 at 296; DADA V. DOSUNMU (2006) 18NWLR (PT 1010) 134. See Order 10 of the Court of Appeal Rules. I shall therefore discountenance the objections to the grounds of appeal and the issue formulated.
?I have deeply considered the arguments canvassed on both sides as well as the contents of the record of appeal. The relevant High Court Rules of this appeal are Order 5 Rules 1, 2 (1) and
15 of the Sokoto State High Court Civil Procedure Rules.
Order 5 Rule 1 of the said Rules state
?Writ of the summons to be issued by the Registrar.
(1) A writ of summons shall be issued by the Registrar or other officer of the Court empowered to issue summonses, an application. the application shall ordinarily be made in writing by the plaintiffs solicitor by completing form 1 in the Appendix to these Rules but the Registrar or the other officer as aforesaid, where the applicant for a writ of summons is illiterate or has no solicitor, may dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared signed and issued?
Order 5 Rule 2 (1) of the Sokoto State High Court (Civil Procedure) Rules state
?Where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the plaintiff?s address and the legal practitioner name or a firm and a business address of this within the jurisdiction and also, if the legal practitioner is the agent of another the name or firm and address of his principal?<br< p=””>
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Order 5 Rule 15 of the same Rules also read
?Issue of writ takes place upon its being signed by the Registrar or other officer of the Court duly authorized to sign the writ.?
The word ?Issue? and ?Sign? as used in the Sokoto Rules are not synonymous neither are they inter changeable.
The word ?Issue? is defined in Black?s Law Dictionary (with pronunciations) 6th Edition as ?to send out officially to deliver, for use or authoritatively?
The word Sign is defined in the same Dictionary as
?To affix one name to a writing or instrument, for the purpose of authenticating or executing it or to give it effect as one?s act?
Clearly from the Sokoto Rules only the Registrar or authorized Court official is authorized to issue or deliver for use, a writ of summons. Any other person that seeks to do it is committing a nullity or an exercise in futility. The issuance of the writ is done when the said Court official signs the writ of summons.
?An unissued writ is a mere sheet of paper without any legal relevance. See KIDA V. OGUNMOLA (2006) 13 NWLR (PT 997)
377.
By virtue of Order 5 Rule 12 (1) of the same Rules, a writ of summons, where the plaintiff is represented by a legal Practitioner shall be so endorsed, with the plaintiff’s address and the legal practitioner’??s name or firm and the business address of the practitioner within the jurisdiction.
I have carefully perused the writ of summons issued at the lower Court as contained on page 1 – 4 of the record of appeal. Rightly, the writ was issued by the Registrar of the lower Court on 3/11/2014. The plaintiff’??s counsel also endorsed his name, signature, name of firm and address as required by the Rules.
The following addition on the writ i.e. “??This writ was issued by the plaintiff its solicitor A. M. Abdulkadir & co No C 21 Zaria Road, Kano Legal Practitioner’s for the plaintiff who reside in Sokoto.”??therefore, has no legal effect in my view. It is a mere surplusage and a mere waste of words. The plaintiff under the Rules cannot issue the writ neither can its solicitor do so. I therefore agree entirely with the Ruling of the lower Court overruling the preliminary objection of the defendant.
The facts of this case are distinguishable from that of MINISTRY OF WORKS AND TRANSPORT ADAMAWA STATE & 4 OTHERS V. ALHAJI ISIYAKU YAKUBU & ANOTHER (supra) where it was held thus
“The effects of signing of an originating process by a law firm is that the originating process is incompetent, fundamentally defective and legally non -?? existence”
This writ of summons in the instant appeal was signed by the legal practitioner himself and not his firm.
This appeal lacks merit.
It fails in it’s entirely. The ruling of Sambo J. of High Court of justice Sokoto delivered on 19/5/2015 is hereby affirmed. Suit No.SS/99/2014, RAHMANIYYA GLOBAL RESOURCES LTD V. CENTRAL BANK OF NIGERIA is hereby remitted back to the lower Court for the continuation of hearing and its determination.
No order as to costs.
PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother Awotoye J.C.A., and I agree with the reasoning contained therein and the conclusion arrived thereat. For the same reason in the leading judgment I dismiss the appeal and
endorse all the consequential order made by my learned brother, including order as to costs.
MUHAMMED L. SHUAIBU, J.C.A.: I have the privilege to read in advance the leading judgment prepared by my learned brother Tunde O. Awotoye, J.C.A and I agree entirely with the reasoning and conclusion that the appeal lacks merit. It is also accordingly dismissed by me. I abide by the consequential orders remitting the suit back to the lower Court for the continuation of trial.
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Appearances
M. A. Sambo Esq.For Appellant
AND
A. M. Abdulkadir Esq.For Respondent
