SERMATECH (NIG) LTD v. WOTU IBOR (NIG) LTD
(2020)LCN/15243(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Monday, May 18, 2020
CA/C/64/2017
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Philomena Mbua Ekpe Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
SERMATECH NIGERIA LTD APPELANT(S)
And
WOTU IBOR NIGERIA LTD RESPONDENT(S)
RATIO
COMPETENCE OF THE COURT TO ADJUDICATE ON A MATTER BEFORE IT
The law is settled that a Court is competent when:-
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and
(b) 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
(c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See MADUKOLU V NKEMDILIM (1962) 2 SCNLR 341.
An initiating process is competent only if same is signed by a legal practitioner. Where not so signed, it will be defective and incapable of founding any competent action. Therefore, an action founded on an incompetent writ of summons cannot be otherwise. See F.B.N. PLC V MAIWADA (2013) 5 NWLR (Prt 1348) 444 and ARUEZE V NWAUKONI (2019) 5 NWLR (Prt 1666) 469. PER SHUAIBU, J.C.A.
PARTIES TO SIGN PROCESSES FILED IN COURT
In the case ofALAWIYE V OGUNSANYA (2013) ALL FWLR (Prt 668) 800 at 808 – 809, the Supreme Court has held that the processes filed in Court are to be signed as follows:
(a) The signature of counsel, which may be any contraption,
(b) The name of counsel clearly written.
(c) Who counsel represents.
(d) Name and address of legal firm.
Also the Apex Court has settled the controversy as to who is mandatorily required to sign the originating process in OKAFOR V NWEKE (2007) 70 NWLR (Prt 1043) 521.
Therefore, the failure to commence proceeding with valid writ of summons as in this case goes to the root of the case and any order emanating from such proceedings is liable to be struck out for being incompetent and a nullity. See SLB CONSORTIUM LTD V NNPC (Supra). PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of the Honourable Justice Edem Ita Koofrreh of the High Court of Cross River State, Obubra Judicial Division delivered on April 4th, 2016. The respondent as claimant at the Court below took out a writ of summons and statement of claim both filed on 21st November, 2014. In paragraph 10 of the statement of claim the respondent as claimant claimed from the appellant’s /Defendants thereat as follows:-
(i) N3,502,680 (Three Million, Five Hundred and Two Thousand, Six Hundred and Eighty Naira) being the balance of the sum owed, due and payable to the claimant by the defendant arising from the contract of the supply of petroleum product (diesel) by the claimant to the defendants, spanning from 23rd June, 2013 to 23rd August, 2013 in which the defendants have failed and / or neglected to pay despite repeated demands and entreaties.
(ii) Interest on the said sum at the prevailing banking rate of 21% (Twenty-one percent) from the 23rd day of October, 2014 until judgment is delivered in this suit and thereafter at the rate of 10% (ten percent) until the judgment is liquidated.
(iii) N500,000.00 (Five Hundred Thousand Naira) being cost of action.
Pleadings were filed and exchanged and the matter proceeded to trial wherein witnesses were called and exhibits tendered. At the end the trial and after striking out the name of the 2nd defendant in the suit, judgment was entered in favour of the claimant (now respondent).
Dissatisfied, appellant filed this appeal through a notice of appeal filed on 18/4/2016. The said notice of appeal at pages 108 – 110 of the record of appeal contains five (5) grounds of appeal.
In this Court, parties exchanged and adopted their briefs of argument. The appellant’s brief settled by A. A. Obor Esq raised the following issues for determination:
1. In a claim for recovery of debt, whether it is safe to treat conflicting evidence on the amount owed as minor (Distilled from grounds 1 and 2).
2. Whether the learned trial judge was right in law to hold that the claim of N3,502,680 is not a claim in special damages. (Distilled from grounds 3 and 4).
3. On the totality of evidence before the Court whether the learned trial judge was right in law to strike out the name of a necessary party – 2nd respondent in her judgment. (Distilled from ground 5).
The respondent’s brief was settled by B. E. Enang Esq. and adopts the three (3) issues nominated by the appellant.
Before delving into the argument of learned counsel on the above issues, it is pertinent to state at this juncture that the appellant had challenged the writ of summons that gave birth to the proceedings now on appeal on the ground that same was not signed by a legal practitioner in accordance with the provisions of Order 8 Rule 2 (3) of the High Court (Civil Procedure) Rules of Cross River State 2008.
Proffering argument on this preliminary issue, learned counsel for the appellant contends that non-signing of the writ of summons is a fundamental defect that renders the main action incompetent, invalid and divest this Court of jurisdiction. He thus submits that the signing of the statement of claim does not satisfy the requirements of Order 8 Rule 2 (3) of the extant Rules which stipulates that each copy of the writ shall be signed by the legal practitioner or by the claimant where he sues in person. He referred to the cases of NWOKEDIASO V ONUOHA (2001) FWLR (pt 59) 1326, SLB CONSORTIUM LTD V NNPC (2011) 9 NWLR (pt 1252) 317 and M. V. ARABELLA V N. A. I. C. (2008) 32 WRN 4 to the effect that the endorsement at page 2 of the writ of summons to wit that the writ was issued by Qudus Lawal Esq. does not constitute a contraption / signature of either the claimant or legal practitioner.
Still in argument, learned counsel submits that the legal requirement of signing the writ of summons is separate and distinct from the need to sign pleadings as such that the fact that the pleadings is signed does not cure the defect of non-signing the writ. He referred to BUHARI V ADEBAYO (2014) 10 NWLR (pt. 1416) 560 at 587.
In further argument, learned counsel submits that non-signing of a writ of summons is not a matter of mere procedural irregularity that can be cured or be waived or acquiesced to by any of the parties. And that non-signing of writ of summons being an originating process is a matter of jurisdictional importance that renders the process incompetent and liable to be struck out. He referred to KIDA V OGUNMOLA (2006) ALL FWLR (prt 327) 402, OKARIKA V SAMUEL (2013) 7 NWLR (prt 1352) 19 and MINISTRY OF WORKS & TRANSPORT V YAKUBU (2013) 53 NSCQR 1 at 24.
Learned counsel for the respondent on his part submits that the non-signing of the writ of summons is a mere procedural irregularity and if so treated, will not nullify the proceedings relying on Order 11 Rules 1 and 2of the extant Rules of Court.
He also submits that Rules of Court are not to be obeyed to the detriment of justice as they are basically made to assist the Court in arriving at substantial justice in any given matter not justice via technicality. He referred to U.B.A. PLC V MODE NIGERIA LTD (2001) FWLR (prt 40) 1664 at 1674.
It was also submitted on behalf of the respondent that since the statement of claim supersedes the writ of summons, whatever is contained in the writ of summons but does not appear on the statement of claim is deemed abandoned. He referred to LAHAN & ORS V LAJOYE TAN & ORS (1972) N.S.CC 460 and ENIGBOKAN V AMERICAN INTERNATIONAL INSURANCE CO. LTD (1994) 6 NWLR (Pt 348) 1.
Learned counsel finally submits that although the issue of jurisdiction of a Court can be raised even at the Supreme Court for the first time but having neglected to take foundational procedural steps to that effect and proceeded to take fresh steps to the end of the trial, the appellant must be taken to have waived her right. He referred to ROZEN INVESTMENT LTD V NDIC (2006), ALL FWLR (Prt 348) and AKANINWO V NSIRIM (2008) ALL FWLR ( Pt. 410) 610.
Parties in this case are ad idem as regards the non-signing of the writ of summon but the areas of divergence are that since the statement of claim supersedes the writ, the subsequent signing of the statement of claim should be taken to have cured the apparent defect in the writ of summons. Also the failure to sign the writ of summons is a procedural irregularity which can be waived.
The provisions of Order 8 Rules 2 (3) of the High Court (Civil Procedure) Rules of Cross River State, 2008 provides:-
“2 (3) Each copy shall be signed by 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.”
In a similar vein, the provisions of Order 11 Rules 1 – 2 of the said rules provides that “where in the beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding, there has by reason of anything done or left undone, been a failure to comply with the requirements of these 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 proceeding or any document or order therein.”
The fundamental question is whether the failure to sign a writ of summons is a mere irregularity which is incapable of nullifying the proceedings?
A writ of summons is an initiating legal process by which the jurisdiction of a trial High Court can properly and validly be invoked by a person or party who intends to utilize the judicial process of that Court to seek for reliefs or remedies from the Court against another on any legal ground. Consequently, the validity of an originating process in a proceeding before a Court is fundamental and the competence of proceedings is condition sine qua non to the legitimacy of any suit.
As stated elsewhere in this judgment that the writ in the instant case was neither signed by the claimant nor legal practitioner as required by Order 8 Rules 2 (3) of the extant rules of Court. The law is settled that a Court is competent when:-
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and
(b) 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
(c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See MADUKOLU V NKEMDILIM (1962) 2 SCNLR 341.
An initiating process is competent only if same is signed by a legal practitioner. Where not so signed, it will be defective and incapable of founding any competent action. Therefore, an action founded on an incompetent writ of summons cannot be otherwise. See F.B.N. PLC V MAIWADA (2013) 5 NWLR (Prt 1348) 444 and ARUEZE V NWAUKONI (2019) 5 NWLR (Prt 1666) 469.
In the case ofALAWIYE V OGUNSANYA (2013) ALL FWLR (Prt 668) 800 at 808 – 809, the Supreme Court has held that the processes filed in Court are to be signed as follows:
(a) The signature of counsel, which may be any contraption,
(b) The name of counsel clearly written.
(c) Who counsel represents.
(d) Name and address of legal firm.
Also the Apex Court has settled the controversy as to who is mandatorily required to sign the originating process in OKAFOR V NWEKE (2007) 70 NWLR (Prt 1043) 521.
Therefore, the failure to commence proceeding with valid writ of summons as in this case goes to the root of the case and any order emanating from such proceedings is liable to be struck out for being incompetent and a nullity. See SLB CONSORTIUM LTD V NNPC (Supra).
On whether the failure on the part of the appellant to raise such objection timeously and her subsequent taking steps in the matter amounted to waiver, the issue of jurisdiction needed no formalities before being raised. Thus, where a Court lacks jurisdiction, parties in litigation cannot confer jurisdiction on the Court. As a matter of law, lack of jurisdiction cannot be waived by one or both parties. The issue of competence of an originating process goes to the jurisdiction of the Court where the Court lacks jurisdiction, it cannot make any order whatsoever, or invoke any Section of the law. See ARUEZE V NWAUKONI (Supra).
In the light of the above, and considering the fact that the apparent defect in the writ of summons is extrinsic to the adjudication of this case, there is therefore no basis to proceed with the hearing of this appeal. The preliminary issue raised by the appellant is hereby sustained and the entire appeal collapses. Accordingly, suit NO. HB/22/2014 is struck out.
Parties to bear their respective costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
PHILOMENA MBUA EKPE, J.C.A.: My learned brother M. L. Shuaibu, JCA afforded me the opportunity of reading in advance, a draft copy of the judgment just delivered. I am in total agreement with the resolution made thereof.
Appeal dismissed.
Appearances:
- A. Obor Esq. For Appellant(s)
- E. Enang For Respondent(s)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Monday, May 18, 2020
CA/C/64/2017
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Philomena Mbua Ekpe Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
SERMATECH NIGERIA LTD APPELANT(S)
And
WOTU IBOR NIGERIA LTD RESPONDENT(S)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of the Honourable Justice Edem Ita Koofrreh of the High Court of Cross River State, Obubra Judicial Division delivered on April 4th, 2016. The respondent as claimant at the Court below took out a writ of summons and statement of claim both filed on 21st November, 2014. In paragraph 10 of the statement of claim the respondent as claimant claimed from the appellant’s /Defendants thereat as follows:-
(i) N3,502,680 (Three Million, Five Hundred and Two Thousand, Six Hundred and Eighty Naira) being the balance of the sum owed, due and payable to the claimant by the defendant arising from the contract of the supply of petroleum product (diesel) by the claimant to the defendants, spanning from 23rd June, 2013 to 23rd August, 2013 in which the defendants have failed and / or neglected to pay despite repeated demands and entreaties.
(ii) Interest on the said sum at the prevailing banking rate of 21% (Twenty-one percent) from the 23rd day of October, 2014 until judgment is delivered in this suit and thereafter at the rate of 10% (ten percent) until the judgment is liquidated.
(iii) N500,000.00 (Five Hundred Thousand Naira) being cost of action.
Pleadings were filed and exchanged and the matter proceeded to trial wherein witnesses were called and exhibits tendered. At the end the trial and after striking out the name of the 2nd defendant in the suit, judgment was entered in favour of the claimant (now respondent).
Dissatisfied, appellant filed this appeal through a notice of appeal filed on 18/4/2016. The said notice of appeal at pages 108 – 110 of the record of appeal contains five (5) grounds of appeal.
In this Court, parties exchanged and adopted their briefs of argument. The appellant’s brief settled by A. A. Obor Esq raised the following issues for determination:
1. In a claim for recovery of debt, whether it is safe to treat conflicting evidence on the amount owed as minor (Distilled from grounds 1 and 2).
2. Whether the learned trial judge was right in law to hold that the claim of N3,502,680 is not a claim in special damages. (Distilled from grounds 3 and 4).
3. On the totality of evidence before the Court whether the learned trial judge was right in law to strike out the name of a necessary party – 2nd respondent in her judgment. (Distilled from ground 5).
The respondent’s brief was settled by B. E. Enang Esq. and adopts the three (3) issues nominated by the appellant.
Before delving into the argument of learned counsel on the above issues, it is pertinent to state at this juncture that the appellant had challenged the writ of summons that gave birth to the proceedings now on appeal on the ground that same was not signed by a legal practitioner in accordance with the provisions of Order 8 Rule 2 (3) of the High Court (Civil Procedure) Rules of Cross River State 2008.
Proffering argument on this preliminary issue, learned counsel for the appellant contends that non-signing of the writ of summons is a fundamental defect that renders the main action incompetent, invalid and divest this Court of jurisdiction. He thus submits that the signing of the statement of claim does not satisfy the requirements of Order 8 Rule 2 (3) of the extant Rules which stipulates that each copy of the writ shall be signed by the legal practitioner or by the claimant where he sues in person. He referred to the cases of NWOKEDIASO V ONUOHA (2001) FWLR (pt 59) 1326, SLB CONSORTIUM LTD V NNPC (2011) 9 NWLR (pt 1252) 317 and M. V. ARABELLA V N. A. I. C. (2008) 32 WRN 4 to the effect that the endorsement at page 2 of the writ of summons to wit that the writ was issued by Qudus Lawal Esq. does not constitute a contraption / signature of either the claimant or legal practitioner.
Still in argument, learned counsel submits that the legal requirement of signing the writ of summons is separate and distinct from the need to sign pleadings as such that the fact that the pleadings is signed does not cure the defect of non-signing the writ. He referred to BUHARI V ADEBAYO (2014) 10 NWLR (pt. 1416) 560 at 587.
In further argument, learned counsel submits that non-signing of a writ of summons is not a matter of mere procedural irregularity that can be cured or be waived or acquiesced to by any of the parties. And that non-signing of writ of summons being an originating process is a matter of jurisdictional importance that renders the process incompetent and liable to be struck out. He referred to KIDA V OGUNMOLA (2006) ALL FWLR (prt 327) 402, OKARIKA V SAMUEL (2013) 7 NWLR (prt 1352) 19 and MINISTRY OF WORKS & TRANSPORT V YAKUBU (2013) 53 NSCQR 1 at 24.
Learned counsel for the respondent on his part submits that the non-signing of the writ of summons is a mere procedural irregularity and if so treated, will not nullify the proceedings relying on Order 11 Rules 1 and 2of the extant Rules of Court.
He also submits that Rules of Court are not to be obeyed to the detriment of justice as they are basically made to assist the Court in arriving at substantial justice in any given matter not justice via technicality. He referred to U.B.A. PLC V MODE NIGERIA LTD (2001) FWLR (prt 40) 1664 at 1674.
It was also submitted on behalf of the respondent that since the statement of claim supersedes the writ of summons, whatever is contained in the writ of summons but does not appear on the statement of claim is deemed abandoned. He referred to LAHAN & ORS V LAJOYE TAN & ORS (1972) N.S.CC 460 and ENIGBOKAN V AMERICAN INTERNATIONAL INSURANCE CO. LTD (1994) 6 NWLR (Pt 348) 1.
Learned counsel finally submits that although the issue of jurisdiction of a Court can be raised even at the Supreme Court for the first time but having neglected to take foundational procedural steps to that effect and proceeded to take fresh steps to the end of the trial, the appellant must be taken to have waived her right. He referred to ROZEN INVESTMENT LTD V NDIC (2006), ALL FWLR (Prt 348) and AKANINWO V NSIRIM (2008) ALL FWLR ( Pt. 410) 610.
Parties in this case are ad idem as regards the non-signing of the writ of summon but the areas of divergence are that since the statement of claim supersedes the writ, the subsequent signing of the statement of claim should be taken to have cured the apparent defect in the writ of summons. Also the failure to sign the writ of summons is a procedural irregularity which can be waived.
The provisions of Order 8 Rules 2 (3) of the High Court (Civil Procedure) Rules of Cross River State, 2008 provides:-
“2 (3) Each copy shall be signed by 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.”
In a similar vein, the provisions of Order 11 Rules 1 – 2 of the said rules provides that “where in the beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding, there has by reason of anything done or left undone, been a failure to comply with the requirements of these 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 proceeding or any document or order therein.”
The fundamental question is whether the failure to sign a writ of summons is a mere irregularity which is incapable of nullifying the proceedings?
A writ of summons is an initiating legal process by which the jurisdiction of a trial High Court can properly and validly be invoked by a person or party who intends to utilize the judicial process of that Court to seek for reliefs or remedies from the Court against another on any legal ground. Consequently, the validity of an originating process in a proceeding before a Court is fundamental and the competence of proceedings is condition sine qua non to the legitimacy of any suit.
As stated elsewhere in this judgment that the writ in the instant case was neither signed by the claimant nor legal practitioner as required by Order 8 Rules 2 (3) of the extant rules of Court. The law is settled that a Court is competent when:-
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and
(b) 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
(c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See MADUKOLU V NKEMDILIM (1962) 2 SCNLR 341.
An initiating process is competent only if same is signed by a legal practitioner. Where not so signed, it will be defective and incapable of founding any competent action. Therefore, an action founded on an incompetent writ of summons cannot be otherwise. See F.B.N. PLC V MAIWADA (2013) 5 NWLR (Prt 1348) 444 and ARUEZE V NWAUKONI (2019) 5 NWLR (Prt 1666) 469.
In the case ofALAWIYE V OGUNSANYA (2013) ALL FWLR (Prt 668) 800 at 808 – 809, the Supreme Court has held that the processes filed in Court are to be signed as follows:
(a) The signature of counsel, which may be any contraption,
(b) The name of counsel clearly written.
(c) Who counsel represents.
(d) Name and address of legal firm.
Also the Apex Court has settled the controversy as to who is mandatorily required to sign the originating process in OKAFOR V NWEKE (2007) 70 NWLR (Prt 1043) 521.
Therefore, the failure to commence proceeding with valid writ of summons as in this case goes to the root of the case and any order emanating from such proceedings is liable to be struck out for being incompetent and a nullity. See SLB CONSORTIUM LTD V NNPC (Supra).
On whether the failure on the part of the appellant to raise such objection timeously and her subsequent taking steps in the matter amounted to waiver, the issue of jurisdiction needed no formalities before being raised. Thus, where a Court lacks jurisdiction, parties in litigation cannot confer jurisdiction on the Court. As a matter of law, lack of jurisdiction cannot be waived by one or both parties. The issue of competence of an originating process goes to the jurisdiction of the Court where the Court lacks jurisdiction, it cannot make any order whatsoever, or invoke any Section of the law. See ARUEZE V NWAUKONI (Supra).
In the light of the above, and considering the fact that the apparent defect in the writ of summons is extrinsic to the adjudication of this case, there is therefore no basis to proceed with the hearing of this appeal. The preliminary issue raised by the appellant is hereby sustained and the entire appeal collapses. Accordingly, suit NO. HB/22/2014 is struck out.
Parties to bear their respective costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
PHILOMENA MBUA EKPE, J.C.A.: My learned brother M. L. Shuaibu, JCA afforded me the opportunity of reading in advance, a draft copy of the judgment just delivered. I am in total agreement with the resolution made thereof.
Appeal dismissed.
Appearances:
A. Obor Esq. For Appellant(s)
E. Enang For Respondent(s)
