SKYPOWER EXPRESS AIRWAYS LTD v. UBA, PLC & ANOR
(2022)LCN/5152(SC)
In The Supreme Court
On Friday, January 07, 2022
SC.80/2016
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Between
SKYPOWER EXPRESS AIRWAYS LIMITED APPELANT(S)
And
1. UNITED BANK FOR AFRICA PLC 2. SILVERGATE INTERNATIONAL MERCHANTS LIMITED RESPONDENT(S)
RATIO:
SIGNATURE ON AN ORIGINATIN PROCESS
An originating Court process employed or used for the invocation of a Court’s jurisdiction over an action or matter which was signed in the name of a Law Firm is incurably incompetent and incapable of igniting or invoking the requisite jurisdiction of the Court to entertain the action or matter for being in contravention or breach of the provisions of Sections 2 (1) and 24 of the LPA and Rules of Courts. This is the position established, stated and restated in the decisions in Okafor v. Nweke, SLB Consortium v. NNPC and FBN, Plc v. Maiwada (all supra) and the underlining principle decided by this Court in these cases is that once a Court process is signed in the name of Law Firm and the person whose signature was appended cannot be identified to be a legal practitioner entitled to practice law by virtue of the provisions of Sections 2 (1) and 24 of the LPA, then such a process is incurable incompetent. The import of the decisions is that non-compliance with the provisions of Sections 2(1) and 24 of the LPA, as a matter of substantive law, affects and deprives a Court of the jurisdiction to entertain and adjudicate over such a Court process, as an initiating process, which is therefore liable to be struck out. Madukolu v. Nkemdilim (supra), Ebhodagbe v. Omokhafe (2004) 12 SCNJ, 106, Obi v. INEC (2007) 7 SC, 268.
MOHAMMED LAWAL GARBA, J.S.C
SIGNATURE ON AN ORIGINATIN PROCESS
It is a well settled principle of law that a Court process must be signed either by the party or by a Legal Practitioner whose name is on the Roll of Legal practitioners.
The rational for this legal position was expatiated in the case of Peak Merchant Bank Limited v. Nigeria Deposit Insurance Corporation (2011) 12 NWLR (pt. 1261) 253 at 261-261 as follows:-
“I am of the firm view that any person signing processes on behalf of a principal partner in the chambers must state his name and designation to show that he is a legal practitioner whose name is ascertainable in the roll of registered legal practitioners. This is to avoid a situation where a clerk, messenger or secretary would sign processes filed in Court on behalf of principal partners in the chambers.” Mary Ukaego Peter-Odili
MOHAMMED LAWAL GARBA, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Lagos Division of the Court of Appeal (lower Court) delivered on the 25th November, 2015 in favour of the 1st Respondent who was the Appellant therein.
Briefly, the facts which led to the appeal before the lower Court are that the Appellant had sued the Respondents before the Lagos State High Court (trial Court) vide a writ of summons dated 11th May, 2000 and claimed the following reliefs:
“1. A Declaration that the plaintiff is the owner of and entitled to the various sums of money totaling N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) paid into the 2nd Defendant’s Account No. 201-01874-2 with the 1st Defendant between 24th November and 2nd December 1998 on the inducements of the 1st Defendant.
2. A Declaration that the failure, refusal and or neglect by the 1st Defendant to refund or pay back the said sum of N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) to the plaintiff amounts to unlawful conversion of or an improper dealing with the plaintiff’s fund and a breach of trust as well as a breach of contract.
3. A Declaration that the purported transfer by the 1st Defendant of the plaintiff’s N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) paid into the 2nd Defendant’s Current Account No. 201-01874-2 on the inducement of the 1st Defendant to Allied Internal Ltd, if true is improper, irregular, wrongful, null and void.
4. AN ORDER setting aside the purported transfer of the Plaintiff’s funds being N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) kept in the 2nd Defendant’s Current No. 201-01874-2 to Allied International Ltd, on the purported mandate of the 2nd Defendant’s Managing Director Alhaji Yunusa.
5. AN ORDER directing the 1st Defendant to refund and pay back to the plaintiff the sum of N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) which the 1st Defendant induced the plaintiff to pay into the 2nd Defendant’s Current Account No. 210-01874-2 to be held in trust for purpose of transfer to the Plaintiff’s Account No. 201-019366 when finally established, the sum with interest at 21% per annum, being the current bank rate from 3rd December, 1998 until date of judgment and thereafter till final payment.
Alternatively
The sum of N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) against the 1st Defendant being monthly had and received by the 1st Defendant for purposes of opening a Current Account for the Plaintiff, which purpose has failed, with interest at 21% per annum from 3rd December, 1998 until final judgment and thereafter until final payment.
6. N10 million being damages for deceit and fraudulent representations and or misstatements, improper inducements and unlawful deprivation of the use of legitimate funds further to which the plaintiff may suffer damage.”
The claims were denied by the Respondents in their respective Statements of Defence and at the end of trial, judgment was entered in favour of the Appellant on the 30th May, 2008 by the trial Court.
Aggrieved, the 1st Respondent appealed against that judgment to the lower Court, which, as stated above, allowed the appeal on the ground that the originating processes, i.e; the writ of summons and the Statement or Claim were both signed in the name of a Law Firm and not by the Legal Practitioner known to law and so incompetent.
The appeal was brought vide the Notice of Appeal dated the 3rd December, 2015 on seven (7) grounds and in the Appellant Brief filed on the 17th March, 2016, six (6) issues are set out for determination as follows:-
“i. Whether the lower Court was right by striking out the appellant’s preliminary objection to the competence of the appeal as well as the jurisdiction of the Court to entertain the same and assuming jurisdiction over the matter. This relates to grounds one of the grounds of appeal.
ii. Whether the lower Court was right and did not act in excess of its jurisdiction when it held that the suit was not initiated in accordance with or by the due process of law and as such the suit was incompetent ab initio thereby rendering the judgment delivered by the Court on 30th May 2008 null and void. This issue is relative to grounds 2 & 3.
iii. Whether the lower Court was right when it failed to distinguish the case from the cases of Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521, SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) 317 and FBN, Plc v. Maiwada (2013) 5 NWLR (pt. 1348) 444 as well as apply the principle in Ogundele v. Agiri (2009) 18 NWLR (pt. 1173) 219 and hold that the signature ‘J. O. Esezoobo’ makes it an exception to the cases. This is relative to ground 4.
iv. Whether the lower Court was right and did not violate the appellant’s fundamental right to a fair hearing guaranteed by Section 36(1) of the 1999 Constitution, as amended, when it held that ground one of the 1st Respondent’s Further Amended Notice of Appeal dated 17th October 2012 was competent and required no leave of the Court to validate it. Relative to ground 5.
v. Whether the lower Court properly came to the conclusion that “the Appellant’s complaint (in ground two) flows from the decision of the lower Court wherein the Court decided in favour of the 1st Respondent that the transfer of the money in contention was wrong” and consequently holding the appeal competent. Relative to ground 6.
vi. Whether the lower Court was right and did not violate Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, by failing to hear the case within a reasonable time until seven (7) years from 2008 to 2015 such as renders the judgment of the lower Court a nullity. This is relative to ground 7 of the Notice of appeal.”
Three (3) issues are said to arise from the grounds of the appeal for decision by the Court, in the Amended 1st Respondent’s Brief filed on the 10th September 2021, they are in the following terms:-
“(i) Whether the lower Court was right when it held that the Appellant’s action at the lower Court was incompetent ab initio having been initiated by a Writ of Summons and Statement of Claim which were not signed by a legal practitioner?” (Grounds 2, 3 and 4).
(ii) Whether the lower Court was right when it struck out the Appellant’s preliminary objection dated 24 March, 2014?” (Grounds 1, 5 and 6).
(iii) Whether the length of the proceedings as the lower Court amount to a breach of the Appellant’s fundamental right to fair hearing?” (Ground 7).”
There is no record that the 2nd Respondent, who was duly served with all the material processes in the appeal, filed a brief of argument or any other process for the prosecution of the appeal. The 2nd Respondent was also not represented at the oral hearing of the appeal on the 12th October, 2021 when the learned counsel for the Appellant and 1st Respondent adopted their respective briefs. The Appellant also filed the Appellant’s Reply Brief on 26th September, 2018.
As stated above, the lower Court allowed the appeal by the 1st Respondent on the sole ground that the originating processes were incompetent for being signed in the name of a Law Firm and not a legal practitioner. The suit was struck out for incompetence and want of jurisdiction on the part of the trial Court to entertain and adjudicate over it.
The crucial issue which requires determination first, is whether the lower Court is right in law in that decision. Although, the appellant also challenges the competence of the 1st Respondent’s Notice of Appeal in the lower Court, in the absence of or without the requisite jurisdiction on the part of the trial Court, if it turns out, to entertain and conduct proceedings in the Appellant’s suit initially, then the issue or question of an appeal; competent or incompetent, against the outcome of the purported proceedings conducted in the suit, would not arise. This Court, per M. D. Muhammad, JSC, in the recent case of NNPC v. Roven Shipping Ltd. (2019) NWLR (pt. 1676) 67 at 92, restated the law that:-
“A decision arrived at a Court without jurisdiction, being null and void, can never be the basis of a competent appeal or further litigation.”
His lordship referred to and relied on the decisions in Fadiora v. Gbadebo (1978) 3 SC, 219 and Bamishebi v. Faloye (1987) 2 NWLR (pt. 54) 51.
The very intrinsic and extrinsic nature of the issue of jurisdiction in judicial proceedings of a Court of law and the fatal consequence on the part of a Court to entertain an action, are of considerable antiquity to be elementary in our judicial jurisprudence now. Madukolu v. Nkemdilim (1962) 1 All NLR, 587, (1962) 2 SCNLR 341 is the decision often referred to and relied on for the fundamental and crucial nature of the issue of jurisdiction in judicial proceedings of a Court of law and, named by many, as the “Locus classicus” on the issue.
The law is also firmly established that it is never too late in the course of the proceedings of all Courts in a matter, at all stages of the judicial ladder, for any of the parties or the Courts to raise the issue of jurisdiction, in any form, and that once raised or it arises, it should be decided first before further steps are taken on other issues in the matter in order to avoid an exercise in futility. See Madukolu v. Nkemdilim (supra), Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 7 SC, 158, (1983) 1 SCNLR, 1172, U.D. U.S. v. Kraus Thoumpson Org. Ltd. (2001) 15 NWLR (pt. 376) 305, Obiuweubi v. CBN (2011) 7 NWLR (pt. 1247) 46, Bankole v. Dada (2003) 11 NWLR (pt. 830) 174, NDIC v. CBN (2002) 7 NWLR (pt. 766) 272.
The Appellant’s arguments on the issue, which is argued under the Appellant’s issues two and three at pages 7 – 14 of the Appellant’s Brief, are to the effect that the person who signed page 2 of the Record of Appeal is identifiable by the name written on it and not in doubt and that the lower Court was wrong to have relied on the decisions in Okafor v. Nweke (2007) 10 NWLR (pt. 1252) 317 and FBN, Plc v. Maiwada (2013) 5 NWLR (pt. 1348) 444 to hold that the Appellant’s suit was not initiated by due process of the law to deprive the trial Court of the jurisdiction to entertain it. Learned counsel pointed out and maintains that J. O. Esezobo who signed page 2 of that Record of appeal and all other processes, is different and clear from J. Odion Esezobo & Co. written thereunder and so the facts in the aforenamed decisions are distinguishable from the facts in the Appellant’s case. He argues that where the signature is the name of counsel, as in the Appellant’s case, it cannot be ascribed to a law firm since it is not a mere mark or contraption that is not identifiable. Dankwambo v. Abubakar (2016) 2 NWLR (pt. 1495) 157 at 180/184, 187 and 194/196 was referred to. It is his further argument that with the signature “J.O. Esezobo” being clearly the name of the person who signed, the identity of the person who appended the signature was no longer in doubt, citing Hamzat v. Sanni (2015) 5 NWLR (pt. 1453) 486 at 498 — 499 and 505 — 507 on the difference between “shall sign” and “shall endorse” in respect of processes of Court provided for in the Rules of the trial Court.
Learned Counsel urged the Court to resolve the issue in favour of the Appellant.
The 1st Respondent’s arguments on the issue are that the law is settled that only a legal practitioner entitled to practice law under the Legal Practitioners Act (LPA) can sign processes to be filed in Court and that a process signed in the name of law firm is incompetent. Reliance was placed on Peak Merchant Bank Ltd. v. NDIC (2011) 12 NWLR (pt. 1261) 253 at 201 – 202, SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) 317, the facts of which are said to be similar to the Respondents’ case, FBN v. Maiwada (supra), Framphino Pharm. V. Jawa Int. Ltd. (2013) 5 NWLR (pt. 1348) 444 and SPDC Ltd. v. Sam Royal Hotel Nig. Ltd. (2016) 8 NWLR (pt. 1514) 318. Learned counsel referred to Order 17 Rule 4 of the Trial Court Rules and contends that the arguments of the Appellant do not appreciate the purport of the decisions in SLB Consortium Ltd. v. NNPC and Okafor v. Nweke (both supra) in which, contrary to the arguments, do not create “exceptions and borderline cases” but restated the law that an originating process signed in the name of a law firm, is incompetent. He maintains that the Appellant’s writ and Statement of Claim issued by “J. Odion Esezobo & Co.” did not come before the trial Court initiated by due process of law and upon fulfilment of a condition precedent to the exercise of jurisdiction and so incompetent. That a party cannot condone or waive lack of jurisdiction on the part of a Court to entertain and action, on the authority of Ugo v. Okafor (1996) 3 NWLR (pt. 438) 542 and Ijebu-Ode Local Government v. Adedeji (1991) 1 NWLR (pt. 166) 136, Adeyemi v. Opeyori (1976) 9 – 10 SC, 31 at 49, 51 – 52 and Kasikwu Farms Ltd. v. A. G. Bendel State (1986) 1 NWLR (pt. 19) 693 at 703 – 704.
In the Appellant’s Reply Brief, it is maintained that the facts in FBN, Plc v. Maiwada (supra) are not similar to the Appellant’s case.
RESOLUTION:
The law is now firmly settled beyond arguments, and the learned counsel for the parties acknowledge and agree, that an originating Court process employed or used for the invocation of a Court’s jurisdiction over an action or matter which was signed in the name of a Law Firm is incurably incompetent and incapable of igniting or invoking the requisite jurisdiction of the Court to entertain the action or matter for being in contravention or breach of the provisions of Sections 2 (1) and 24 of the LPA and Rules of Courts.
This is the position established, stated and restated in the decisions in Okafor v. Nweke, SLB Consortium v. NNPC and FBN, Plc v. Maiwada (all supra) and the underlining principle decided by this Court in these cases is that once a Court process is signed in the name of Law Firm and the person whose signature was appended cannot be identified to be a legal practitioner entitled to practice law by virtue of the provisions of Sections 2 (1) and 24 of the LPA, then such a process is incurable incompetent. The import of the decisions is that non-compliance with the provisions of Sections 2(1) and 24 of the LPA, as a matter of substantive law, affects and deprives a Court of the jurisdiction to entertain and adjudicate over such a Court process, as an initiating process, which is therefore liable to be struck out. Madukolu v. Nkemdilim (supra), Ebhodagbe v. Omokhafe (2004) 12 SCNJ, 106, Obi v. INEC (2007) 7 SC, 268.
The question whether a Court process filed in Court was signed in the name of an identifiable person or in the name of a law firm is and can easily be determined by a physical view, close look and consideration of the process itself by the Court.
The Court processes in this appeal are the writ of summons at pages 1 – 3 and the statement of claim at pages 4 – 11 of vol. 2 of the Record of Appeal, which appear thus:-
“ … “
Even a casual and passing glance at these processes would clearly show, beyond reasonable argument, that each was signed with a signature above, for and on the name of “J. Odion Esezobo & Co.” indicated to be counsel plaintiff. It is plain that the signature does not reveal, signify or identify, precisely, the name of the person who appended the signature or signed for the law firm, said to be the counsel to the plaintiff on any of the processes. The signature itself does not portray the name of the person who inscribed it for the purpose of accurate identification and proper authentication. “Signature” is defined in the 9th Edition of the Black’s Law Dictionary, page 1507, to mean, among others:-
“1. A person’s name or mark written by that person or at the person’s direction.
“the signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of this signer.” The word “sign” is also defined on the same page, to mean, inter alia:-
“To identify (a record) by means of a signature, mark, or other symbols with the intent to authenticate it as an act or agreement of the person identifying it.” See also Onward Ent. Ltd. v. Olam Int. Ltd. (2010) All FWLR (pt. 531) 1503 at 1512.
In SLB Consortium Ltd. v. NNPC, (supra) this Court, per Rhodes-Vivour, JSC underscored the importance of the way counsel chooses to sign a Court process and how all processes to be filed in Court shall be signed by Counsel. His Lordship explained that:-
“Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the Law (i.e. the Legal Practitioners Act). All processes filed in Court are to be signed as follows:-
First, the signature of counsel, which may be any contraption.
Secondly, the name of Counsel clearly written.
Thirdly, who counsel represents.
Fourthly, name and address of Legal Firm.”
This position was restated by the Learned Law lord in the case of Nigerian Army v. Samuel (2013) 14 NWLR (pt. 1375) 446 at 485 to settle the appropriate manner, way or mode for proper and valid signing of all Court processes by Counsel representing parties recognised by the law. Any Court process not signed by a legal practitioner representing a party as specifically stated and in the specified manner, is not a Court process signed in accordance with or recognised by law since it will not be a process signed by an identifiable person who could be attributed the competence to sign same.
The undeniable fact in the case of the Appellant in this appeal is that both the writ of summons at page 2 and the statement of claim at pages 4 – 11 of vol. 2 of the Record of Appeal, which clearly and expressly, though mutedly, speak for themselves, are signed by way of a contraption as a signature, over, for and in the name of the law firm of “J. Odion Esezobo & Co.” The contraption or signature is not/does not represent the name of any identifiable person. In his brief of argument, the learned counsel for the appellant has strenuously contended that the signature is the name of counsel for the plaintiff and it is not just a contraption. However, an objective look at the signature shows not even a semblance of a specific and identifiable name, which by the prescription of the Court in SLB Consortium Ltd. v. NNPC and Nigerian Army v. Samuel (above, supra) is required to be “clearly written” in addition to any contraption which may be inscribed or appended as a signature of counsel to the processes. On the two (2) processes, only a signature appears and was inscribed without any name specifically, distinctly and clearly written so as to identify the person who made the contraption of the signature thereon.
The signature was inscribed or appended, as a contraption, over or on top of the name of the Law Firm of “J. Odion Esezobo & Co.” clearly indicating and showing that they were both signed on behalf of and in the name of the said law firm, as counsel for the plaintiff. In the words of Mukhtar, JSC (later CJN) in SLB Consortium Ltd v. NNPC (supra):-
“It is instructive to note here that the requirement for the name of the Legal Practitioner to be given, is necessary and important. The emphasis here is on the name together with the signature.”
Rhodes-Viviour, JSC, concluded that:-
“A signature without the name is incurably bad. ”
In the foregoing premises, the facts of the appellant’s case on the competence of the initiating processes filed at the trial Court are substantially similar, even the same, as those considered and decided upon by this Court in the cases of Okafor v. Nweke, SLB Consortium Ltd. v. NNPC and FBN, Plc v. Maiwada referred to and relied on by the lower Court to hold that the said processes for being signed in the name of Law Firm, are incurably bad and incompetent and the action for not being initiated in line with due process of the law, was incompetent and liable to be struck out.
Perhaps, I should state that since the two (2) processes in the Appellant’s case have been demonstrated to have been signed in the name of a law firm and not by a Legal Practitioner known to law, the issue of the provisions of the trial Court’s Rules as to who has the duty to issue and “sign” or “endorse” a writ of summons is non-sequitur in the determination of the competence of the processes in question. The case of Hamzat v. Sanni (supra) therefore becomes irrelevant in the circumstances.
I resolve the issue in favour of the 1st Respondent and against the Appellant.
The resolution of the issue has effectively and completely subsumed the other issues raised in the appeal since in the absence of the requisite jurisdiction to entertain and conduct valid proceedings on the part of the trial Court, no competent issue could arise for consideration out of the action.
In the final result, the incompetent initiating processes are hereby struck out and the appeal dismissed.
Parties shall bear their respective costs of prosecuting the appeal.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Mohammed Lawal Garba JSC and to underscore the support I have in the reasoning from which the decision came about, I shall make some comments.
On the 12th October, 2021 date of hearing, learned counsel for the appellant, Johnson Esezoobo, Esq. adopted the brief of argument filed on 17/3/2016 and the Reply brief filed on 26/7/2016. He distilled six (6) issues for determination as follows:-
i. Whether the lower Court was right by striking out the appellant’s preliminary objection to the competence of the appeal as well as the jurisdiction of the Court to entertain the same and assuming jurisdiction over the matter. This relates to ground one of the grounds of appeal.
ii. Whether the lower Court was right and did not act in excess of its jurisdiction when it held that the suit was not initiated in accordance with or by the due process of law and as such the suit was incompetent ab initio thereby rendering the judgment delivered by the Court on 30th May 2008 null and void. This issue is relative to grounds 2 & 3.
iii. Whether the lower Court was right when it failed to distinguish the case from the cases of Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521, SLB, PLC Consortium Ltd V NNPC (2011) 9 NWLR (PT. 1252) 317 and FBN, PLC V. Maiwada (2013) 5 NWLR (PT. 1348) 444 as well as apply the principle in Ogundele v Agiri (2009) 18 NWLR (PT. 1173) 219 and hold that the signature J.O. Esezoobo’ makes it an exception to the cases. This is relative to ground 4.
iv. Whether the lower Court was right and did not violate the appellant’s fundamental right to a fair hearing guaranteed by Section 36(1) of the 1999 Constitution, as amended, when it held that ground one of the 1st Respondent’s further Amended Notice of Appeal dated 17th October 2012 was competent and required no leave of the Court to validate it. Relative to ground 5.
v. Whether the lower Court properly came to the conclusion that “the Appellant’s complaint (in ground two) flows from the decision of the lower Court wherein the Court decided in favour of the 1st Respondent that the transfer of the money in contention was wrong” and consequently holding the appeal incompetent. Relative to ground 6.
vi. Whether the lower Court was right and did not violate Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, by failing to hear the case within a reasonable time until seven (7) years from 2008 to 2015 such as renders the judgment of the lower Court a nullity (Ground 7 of the Notice of Appeal).
Learned counsel for the 1st respondent, Davidson Oturu adopted the brief of argument filed on 10/9/2021 and deemed filed on 12/10/2021 and in it distilled three issues for determination Viz:
i. Whether the lower Court was right when it held that the Appellant’s action at the lower Court was incompetent ab initio having been initiated by a Writ of Summons and Statement of Claim which were not signed by a legal practitioner” (Grounds 2, 3 and 4).
ii. Whether the lower Court was right when it struck out the Appellant’s preliminary objection dated 24th March, 2014.” (Ground 1, 5 and 6)
iii. Whether the length of the proceedings at the lower Court amount to a breach of the Appellant’s fundamental right to fair hearing? Ground 7
I shall make use of Issue 1 of the respondent in the determination of this appeal.
ISSUE 1
Whether the lower Court was right when it held that appellant’s action at the lower Court was incompetent ab initio having been initiated by a Writ of Summons and Statement of Claim which were not signed by a legal practitioner.
Learned counsel for the appellant contended that the issue of the non signing of the originating process was not raised at the trial Court and so comes to no issue here and now. He cited SLB Consortium Ltd v. NNPC (2011) 9 NWLR (pt. 1252) 317 etc.
That ascribing a signature as clear as J.O. Esezoobo over ‘J. ODION ESEZOOBO & Co to the law firm rather than the person whose name was clear on the face of the process is taking the law beyond what was decided in earlier cases of this Court. He cited Dankwambo v Abubakar (2016) 2 NWLR (pt. 1495) 157 at 179-208.
In response, learned counsel for the 1st respondent submitted that there is no name as “J. Odion Esezoobo & Co” on the Roll of legal practitioners in Nigeria. That where a Court lacks jurisdiction or competence to entertain an action, the parties to the suit cannot by acquiescence, waive or even by agreement confer jurisdiction or competence upon the Court. He cited Ugo v Okafor (1996) 3 NWLR (pt. 438) 542; Ijebu-Ode LG v Adedeji (1991) 1 NWLR (pt. 166) 136 etc.
It is a well settled principle of law that a Court process must be signed either by the party or by a Legal Practitioner whose name is on the Roll of Legal practitioners.
The rational for this legal position was expatiated in the case of Peak Merchant Bank Limited v. Nigeria Deposit Insurance Corporation (2011) 12 NWLR (pt. 1261) 253 at 261-261 as follows:-
“I am of the firm view that any person signing processes on behalf of a principal partner in the chambers must state his name and designation to show that he is a legal practitioner whose name is ascertainable in the roll of registered legal practitioners. This is to avoid a situation where a clerk, messenger or secretary would sign processes filed in Court on behalf of principal partners in the chambers.”
In the case at hand the Appellant’s Writ of Summons and Statement of Claim dated May 11, 2000 will be found at pp. 1 to 11 of the Record. On pp. 3 and 11 respectively of the Record, which are the concluding parts of the Writ of Summons and Statement of Claim, the following endorsements will be found:
“J. Odion Esezoobo & Co
Counsel to the Plaintiff
5 Destiny Chambers
105, Ikorodu Road
Fadeyi
Lagos State”
Apart from the name of the law firm, the endorsements do not carry the name of any person entitled to practice law in Nigeria. Order 17, R4 of the High Court of Lagos State (Civil Procedure) Rules 1994 (which were the applicable rules at the time this action was commenced at the lower Court) provides as follows:
“…Pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person.”
The question that arises is whether “J. Odion Esezoobo & Co” is a legal practitioner within the meaning of Order 17, Rule 4? The answer is clearly in the negative. Section 24 of the Legal Practitioners Act, Chapter L. 11 Laws of the Federation of Nigeria, 2004 (formerly S.24 of the Legal Practitioners Act, Cap 207, L.F.N., 1990 defines a legal practitioner as meaning:
“…a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor either generally or for the purposes of any particular office or proceedings.”
Furthermore, Section 2(1) of the Legal Practitioners Act also provides that:
“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”.
The facts of this case are similar to the facts in SLB Consortium Ltd. V. N.N.P.C. (2011) 9 NWLR (Pt. 1252 317. There, the originating processes filed at the High Court were signed in the name of the law firm representing the Appellant. At the Supreme Court, the Respondent for the first time on appeal raised a jurisdictional objection on this ground and argued that the originating processes were therefore incompetent. The Supreme Court agreed with the Respondent. At pages 335 to 336 of the Report, Fabiyi JSC stated as follows:
“Briefs of argument were filed on behalf of the parties. The respondent observed that the originating summons filed by the appellant in respect of the proceedings at the trial Federal High Court were signed by a law firm instead of a qualified legal Practitioner as required by the rules and practice of the Federal High Court and contrary to the decision in the case of Okafor v. Nweke (2007) 3 SC (Pt. 11) 55 at 62-2-63, (2007) 10 NWLR (Pt. 1043) 521. A notice of preliminary objection dated 25th May 2009 to the hearing of the appeal was filed. The complaint is that since the originating summons was signed by “Adewale Adesokan & Co” as the plaintiff’s legal practitioner, it is incompetent.
There is no gainsaying the fact that vide Order 26 Rule 4 (3) of the Federal High Court Rules 2000 processes shall be signed by a legal practitioner or a party if he sues or defends in person. In reality, “Adewale Adesokan & Co” which signed the originating summons is not a legal practitioner known to the applicable Legal Practitioners Act, CAP 207 of the Laws of the Federation of Nigeria 1990. This is so since it is not a person entitled to practice as a barrister and solicitor with its name on the roll. Refer to the case Okafor v. Nweke & Ors (supra) … It is not in doubt that the signature of “Adewale Adesokan & Co” on the originating summons of the appellant robs the process of competence ab initio as the said firm is not a registered legal practitioner enrolled to practice law as a Barrister and Solicitor of this Court…
In the prevailing circumstance, all the proceedings which rested on the inchoate originating summons are deemed not to have a place in law. One cannot put something on nothing and expect it to stand. This is as stated decades ago in UAC v. Macfoy (1962) AC 152 at 160.
It is also desirable to state it here that this Court in the case of Madukolu v. Nkedilim (1962) 2 NSCC, 374 at 379-380, (1962) SCNLR 341 maintained that a Court is competent when, inter alia, ‘the case comes up before the Court initiated by due process of law, and upon the fulfillment of any condition precedent to the exercise of jurisdiction’.
It has been established that the originating summons signed by a law firm of ‘Adewale Adesokan & Co’ was not initiated by due process. As same is incompetent, this appeal rests on nothing. This appeal must be, and it is hereby struck out as the preliminary objection is sustained.”
At pp. 337 to 338 of the law report, Rhodes-Vivour JSC made the same point in the following words:
“This suit highlights the painful realities that confronts a litigation when counsel fails to sign processes stipulated by law. The appellant as plaintiff sued the respondent in the Federal High Court for breach of contract and won. He was awarded $19,840,467 as damages, and that was in 2001. The respondent appealed. The Court of Appeal found the judgment of the trial Court correct and sent back the case for a hearing on damages. After hearing, the Court reduced the sum and awarded damages in the sum of $7,155,053. On appeal, the Court of Appeal found that the trial Court had no jurisdiction to hear the case. It ordered that the case being simple contract should be heard by the State High Court. Dissatisfied, the appellant lodged an appeal before this Court. The respondent filed a preliminary objection. The objection being that the originating processes (i.e in the trial Court) was not properly signed by learned counsel for the appellant (plaintiff). Okafor & Ors v. Nweke & 4 Ors (2007), this Court said the same thing Okafor (supra) says. See Reg. Trustees of Apostolic Church of Lagos v. R. Akindele (1967) NMLR p.263.
What then is so important about the way counsel chooses to sign process? Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e the Legal Practitioners Act). All processes filed in Court are to be signed as follows:
First, the signature of counsel, which may be contraction.
Secondly, the name of counsel clearly written.
Thirdly, who counsel represents.
Fourthly, name and address of the legal firm.
In this case, the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the law, clearly spelt out in Reg. Trustees of Apostolic Church of Lagos v. Akindele (supra) and Okafor v. Nweke (supra).
In this case, there is a signature of counsel but no name of counsel. A signature without a name is incurably bad.”
In the light of the above decisions, it is clear that there is no name as “J. Odion Esezoobo & Co” on the Roll of legal practitioners in Nigeria. Therefore that process signed in the name of “J. Odion Esezoobo & Co” is incompetent. The entire proceedings at the trial Court to the judgment are incompetent. Just as Lord Denning stated in Macfoy v. UAC (1961) 3 All ER 1169 at p. 1172;
“You cannot put something on nothing and expect it to stay there. It will collapse.”
The appellant veered off course in the arguments in paragraphs 4.13 to 4.23 and 8.11 to 8:15 of the appellant’s Brief and the distinctions which the Appellant seeks to make between the decisions of the Supreme Court in SLB Consortium Ltd. V. N.N.P.C (supra), Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 and other decisions on the point, it is clear that the Appellant’s counsel had failed to appreciate the purport of the decisions. Contrary to the arguments in the said paragraphs, the SLB decision and in fact, none of the decisions of the Supreme Court on the point create “exceptions and borderline cases”.
The law is not opaque in mystery that where an originating process is signed in the name of a law firm, the process is incompetent.
Of note is with specific reference to the Appellant’s arguments in paragraphs 8.11 to 8.15 of the Appellant’s Brief, the 1st Respondent was not in a position to waive the Appellant’s incompetent Writ Summons. The originating process is fundamentally defective and legally non-existent and the action is dead at the point of filing. The Appellant’s Writ of Summons and statement of Claim issued by “J. Odion Esezoobo & Co” did not come before the Court initiated by due process of law and the trial Court had no jurisdiction to adjudicate on these incompetent processes.
It is trite that where a Court lacks jurisdiction or competence to entertain an action, the parties to the suit cannot by acquiescence, waiver or even agreement confer jurisdiction or competence upon the Court. A party cannot waive in a situation where clearly the Court lacks jurisdiction to entertain a matter. See Ugo v. Okafor (1996) 3 NWLR (Pt. 438) 542 and Ijebu-Ode L.G. v. Adedeji (1991) 1 NWLR (Pt. 166) 135.
In any event, the issue of the propriety of signing of Court processes by a law firm had been put beyond any doubt recently by the Supreme Court in First Bank of Nigeria Plc v. Maiwada and Framphino Pharmaceutical v. Jawa International Limited (2013) 5 NWLR (Pt. 1348) 444. In this case, the full Court of the Supreme Court assisted by over 11 amici curiae took another look at the issue. In the lead judgment, Justice J.A. Fabiyi, JSC held at pages 487 to 488 of the Report as follows:
“I wish to repeat that we are interpreting a law which seeks to make legal practitioners responsible and accountable more especially in modern times that we are presently operating. I see nothing technical in insisting that a legal practitioner should abide by the dictates of the law in signing Court processes. It is my view that if the decision in Okafor v. Nweke is revisited as argued, more confusion will be created. The decision in Okafor v. Nweke is not in any respect wrong in law and I cannot trace the issue to the domain of public policy. The convenience of counsel should have no pre- eminence over the dictate of the law. The law as enacted should be followed. I do not for one moment see any valid reason why the decision of this Court in Okafor v. Nweke should be revisited. It has come to stay and legal practitioners should reframe their minds to live by it for due accountability and responsibility on their part and for the due protection of our profession.”
Musdapher, CJN – “The purported appeals filed before the Court of Appeal were incompetent and were properly struck out by the Court of Appeal”. Also in SPDC Ltd v. Sam Royal Hotel (Nig) Ltd (2016) 8 NWLR 318, the Supreme Court held thus:-
“There is now a veritable body of authorities of this Court on the effect of signing a process in the name of a law firm, not being a person whose name appears on the roll of legal practitioners and authorized to practice law in Nigeria by virtue of Section 2(1) and 24 of the Legal Practitioners Act, Cap. L.11, Laws of the Federation of Nigeria (LFN) 2004. Some of the authorities are as follows: N.N.B. Plc v. Denclag Ltd. (2005) 4 NWLR (Pt. 915) 549 at 582; Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; Oketade v. Adewunmi (2010) 2-3 SC (Pt. 1) 140, (2010) 8 NWLR (Pt. 1195) 63; F.B.N Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444 at 488 A-D; SLB Consortium Ltd v. N.N.P.C (2011) 9 NWLR (Pt. 1252) 317.
It therefore behoves any legal practitioner practicing before the Courts in Nigeria to fully acquaint himself with the law and the precedents set by this apex Court.
It has been said time and again that in upholding the sanctity of Sections 2(1) and 24 of the Legal Practitioners Act, this Court being a public policy Court, has a responsibility to ensure that standards of legal practice are maintained.”
It is now well settled in law that it is the Claimant’s case that vests jurisdiction on the Court. A valid Writ of Summons is sine qua non to the assumption of the requisite jurisdiction by a Court to entertain or adjudicate over a matter commenced by that process. I refer to Adeyemi v. Opeyori (1976) 9-10 SC 31 at 49, 51-52; and Kasikwu Farms Limited v. A.G of Bendel State (1986) 1 NWLR (Pt. 19) 695 at 703-704. The Court will not look at a defendant’s processes to determine whether it has jurisdiction. I posit that the onus is on the Appellant (as Claimant at the lower Court) to ensure that its action at the lower Court was originated by due process of law. That duty has never been that of the defendant. See: Madukolu v. Nkemdilim (1962) All NLR (Pt. 11) 581.
It is clear that this appeal is a non starter, the writ of summons and statement of claim being the originating process having not been signed by a legal practitioner as known in the Roll of Legal Practitioners is invalid or incompetent hence this appeal being a continuum from that originating process cannot be validated as the jurisdiction of the Court had been ousted with the jurisdiction of the trial Court non-existent on account of that incompetence.
The Court below followed that above principle and I see nothing upon which I can depart from that. See First Bank of Nigeria Plc v. Maiwada and Framphino Pharmaceutical v. Java International Limited (2013) 5 NWLR (pt. 1348) 444; SPDC Ltd v. Sam Royal Hotel (Nig) Ltd (supra); Hamzat v. Sani (2015) 5 NWLR (pt. 1453) 486.
The appeal in my view from the foregoing has no merit and I dismiss it. I also strike out the suit in the Court of trial.
Appeal Dismissed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Mohammed Lawal Garba, JSC, just delivered. I agree entirely with the reasoning and conclusion reached therein and adopt same as my own.
The provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Cap L11, Laws of the Federation of Nigeria, 2004, are clear and unequivocal and must be given their ordinary meaning. Section 2(1) provides as follows:
“2(1) 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.”
Section 24 defines a “legal practitioner” to be “a person entitled, in accordance with the provision of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular proceeding.” (Emphasis mine)
It was held in Okafor vs Nweke (2007) 10 NWLR (Pt. 1043) 521 @ 531 C – D, that the combined effect of these 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. In that case, as in the present one, there was a signature above the inscription J.H.C. Okolo, SAN & Co, a law firm. The person who appended his signature thereto purported to have signed the process on behalf of J.H.C. Okolo, SAN & Co. This Court, per Onnoghen, JSC (as he then was) held thus at pages 531 – 532 G -A:
“…it is very clear that by looking at the documents, the signature which learned senior advocate claims to be his really belongs to J.H.C. Okolo, SAN & Co. or was appended on its behalf since it was signed on top of that name. Since both counsel agree that J.H.C. Okolo, SAN & Co. is not a legal practitioner recognized by the law, it follows that the said J.H.C. Okolo, SAN & Co. cannot legally sign and/or file any process in the Courts and as such the motion on notice filed on 19th December 2005, notice of cross appeal and appellants’ brief of argument in support of the said motion all signed and issued by the firm known and called J.H.C. Okolo, SAN & Co. are incompetent in law, particularly as the said firm of J.H.C. Okolo, SAN & Co. is not a registered legal practitioner.”
The instant case is on all fours with Okafor Vs Nweke (supra). A signature, which cannot be deciphered, appears above the inscription “J. Odion Esezobo & Co.” at the foot of the Writ of Summons and Statement of Claim at pages 3 and 11 of the record. Just as in Nweke’s case, learned counsel before us has laboured to convince the Court that the contraption above “J. Odion Esezobo & Co.” belongs to the appellant’s counsel. I agree with my learned brother, Garba, JSC, that the signature above “J. Odion Esezobo & Co.” cannot be presumed to belong to the appellant’s counsel and in any event the signature was appended for and on behalf of “J, Odion Esezobo & Co.,” which is not the name of any legal practitioner appearing on the roll of legal practitioners at the Supreme Court.
The decision in Nweke’s case has been followed in many subsequent decisions of this Court such as: Oketade vs Adewunmi & Ors. (2010) 2 – 3 SC (Pt. 1) 140; FBN Plc vs Maiwada (2013) 5 NWLR (Pt. 1348) 444; Nigerian Army Vs Samuel & Ors. (2013) LPELR – 20931 (SC) @ 14 – 16. In FBN Plc Vs Maiwada (supra) there was an attempt by the appellant to have the decision in Okafor Vs Nweke revisited, on the ground that it was reached per incuriam.
The full bench of this Court, assisted by 11 amici curae resisted the attempt and held that the decision is not in any respect, wrong in law and that it has come to stay. Yet again in Igbinedion & Ors vs Antia (2017) 12 SC (Pt. X) 102 @ 120 — 123, another full panel of this Court maintained the position in Okafor Vs Nweke. See also: SPDC Ltd Vs Sam Royal Hotel (Nig). (2016) 8 NWLR (Pt. 1514) 318.
In Hamzat vs Sanni (2015) 5 NWLR (Pt. 1453) 486, the issue of the competence of the Statement of Claim filed at the trial Court, having been signed in the name of a law firm, “Olumuyiwa Obanewa & Co.”, was raised for the first time before this Court. It was held that being an issue of jurisdiction, it goes to the root of the matter and sustains or nullifies whatever decision the Court may arrive at, no matter how brilliantly presented and could therefore be raised at any time, even for the first time before this Court. In that case, the Writ of Summons was found to be valid. However, the incompetent Statement of Claim and evidence led thereon were expunged from the record. See pages 497 C – G per Galadima, JSC (supra) and 504 – 505 D – F per Peter-Odili, JSC (supra).
This issue should finally be laid to rest. I agree with my learned brother that the processes before the trial Court were incompetent and rightly struck out by the Court below.
For these and the more detailed reasoning in the lead judgment, I too would dismiss the appeal.
The parties shall bear their respective costs in the appeal.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I agree with the reasoning and conclusion reached in the judgment just delivered by my learned brother, the Hon. Justice M. L. Garba, JSC, to the effect that the instant appeal is grossly unmeritorious thus ought to be dismissed.
Hence, without any much ado, I too hereby dismiss the appeal and abide by the consequential order thereby striking out the suit (LD/1432/2000) in the trial Court.
EJEMBI EKO, J.S.C. (DISSENTING): The Court of Appeal, Lagos Division (hereinafter called “the lower Court”) predicated the decision appealed on the fact that the entity – “J. Odion Ezezoobo & Co” that signed “the writ of summons” initiating the suit at the trial Court was not either the Plaintiff or “a legal practitioner within the meaning of the Legal Practitioners Act and the contemplation of Order 17 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1994 (now Order 15 Rule 2 of the 2012 Rules of the (said) Court”. On this premise the lower Court concluded that the action at the trial Court, not initiated in accordance with the due process of law, was incompetent ab initio. The judgment of the trial Court, in consequence of the said writ of summons, allegedly incompetent, was declared null and void.
The principle of law espoused in NWEKE v. OKAFOR (2007) 10 NWLR (pt. 1043) 521, followed by SLB CONSTRUCTION LTD. v. NNPC (2011) 9 NWLR (pt. 1252) 317; FBN PLC v. MAIWADA (2013) 5 NWLR (pt. 1348) 444, was, in my view, wrongly applied in the decision appealed, considering the peculiar facts of the case. Not every process of Court is an originating process. I agree the following are originating processes; that is:- the writ of summons; originating summons; originating motion and a Notice of Appeal. The process the subject of NWEKE v. OKAFOR (supra) was an originating motion purportedly signed or settled by J.H.C. OKOLO, SAN & Co. that was neither the litigant himself nor a known legal practitioner. The originating motion, being an originating process was in the circumstance adjudged fundamentally defective and void ab initio. A defect in any other process, not an originating process, is taken as a mere irregularity. They are voidable at the instance of the adversary; who upon failing to object, is deemed to have condoned and acquiesced in the defect and therefore taken to have waived his right in law to object to the defect.
A procedural irregularity can be waived or deemed to have been waived by the adversary “taking steps” in the proceedings inspite of the defect. This Court in ARIORI v. ELEMO (1983) 1 SC 13 has held that a party, in whom a legal right enures, can waive the legal right including his right in law to object to any defect appearing ex facie the process. Such conduct of failing or neglecting to object timeously to procedural defect appearing ex facie the process creates estoppel by conduct against the prospective objector under Section 169 of the Evidence Act, 2011.
I had stated that not all processes of Court are originating processes. An indorsement on the writ of summons, the purpose of which “is to let the defendant know why he is sued and what is being claimed against him” is not itself the writ of summons. The defect in the indorsement is curable either by amendment or the subsequent filing of statement of claim: FIDELIS NWADIALO – CIVIL PROCEDURE IN NIGERIA, 2nd Ed; Page 218, relying on the English case: HILL v. BOROUGH OF LUTON (1951) 2 KB 387. In the same vein when the indorsement is deficient or bereft of particularity, such defect does not pronto render the writ of summons a nullity: PANTIN v. WOOD (1962) 1 QB 594. T. AKINOLA AGUDA: PRACTICE & PROCEDURE OF THE SUPREME COURT etc 1980 Ed. Para, 3.25, pages 22 – 23 citing FADAHUNSI v. SHELL COMPANY OF NIGERIA LTD (1969) NMLR 3041 etc opines, and I agree, that a defect in indorsement does not render a writ a nullity since such defect is curable by an amendment even of the writ.
In the instant case the writ of summons, which commanded the defendant to cause an appearance to be entered in the High Court of Lagos State in an action at the suit of the Plaintiff/Appellant, was issued “by order of the Court”. It was duly signed, at page 1 of the Records of appeal, by an officer duly authorised in that behalf by the extant Rules of the trial Court: Order 5 Rule 1 thereof. There is no complaint about this. Its validity and competence enjoy presumption of regularity under Section 168(1) of the Evidence Act, 2011 since the “formal requisites for its validity were duly complied with” as a judicial act. The writ of summons at page 2 of the Record, has the indorsement which the defendant/respondent did not complain of.
The complaint of the defendants/respondents at the lower Court necessitating this appeal is all about the process at page 3 headed “WRIT OF SUMMONS” which, in substance and actuality, was/is not a writ of summons, having not been issued “by the order of Court”. It was clearly not a process issued by an officer duly authorised in that behalf by the Rules of the trial Court. The process, clearly, a mere surplusage in view of the Writ of Summons at page 1 and the indorsement on the writ of summons at page 2 of the of the Record and the subsequent statement of claim. The finding of fact, by the lower Court, that the said surplus process at page 3 of the Record was the writ of summons commencing the suit is thus perverse.
The defendants, herein the Respondents, had consistently, at the trial Court, not complained about any defective writ of summons on account of its being allegedly singed or settled by a firm of legal practitioners, “J. Odion Ezezoobo & Co.” They each filed a Statement of Defence which, by leave of Court, they amended and filed Amended Statements of Defence subsequently. The parties called evidence on their respective pleadings. Their counsel also made final submissions wherein they adumbrated on the merits of their respective cases. No objection was taken against the Writ of Summons allegedly signed or settled by a firm of legal practitioners – “J. Odion Ezezoobo & Co”. There being no such objection, the trial Court in its reserved judgment at pages 209 — 247 of Record neither considered nor resolved such issue. In other words, the trial Court did not consider or decide that the Writ of Summons on which the trial predicated and proceeded up to final judgment was defective and void ab initio.
In its final judgment, the trial Court found only the 2nd defendant liable in the suit of the Plaintiff/Appellant. In the appeal of the 2nd defendant, the first issue settled for the determination of the appeal by the lower Court (from ground 1 of the Further Amended Notice of Appeal) was: whether the Writ of Summons and the Statement of Claim not signed by the plaintiff himself but by a law firm were competent? The lower Court resolved that issue (in relation to only the Writ of Summons) in favour of the 2nd defendant and the suit of the Plaintiff/Appellant was struck out; hence this further appeal. The facts in this case, being almost on all fours with HERITAGE BANK LTD v. BENTWORTH FINANCE (NIG.) LTD. (2018) 9 NWLR (pt. 1625) 420 (SC); the decision should have followed the decision in the HERITAGE BANK case (supra).
Me thinks the said ground one in the Further Amended Notice of Appeal, not directed or not being a challenge to any particular ratio decidendi of the decision of the trial Court appealed, ought to have been thoroughly interrogated by the lower Court, which appellate Court, by dint of Sections 241, 242 and 243 of the 1999 Constitution is not constituted to entertain preliminary objections that ought to have been raised and determined by the trial Court. The said Ground one, to me, is an attempt to invite the lower Court to usurp the function of the trial Court. Procedurally, therefore, leave ought to have been first sought and obtained before filing of the said Ground one, being a fresh issue at the lower Court and the issue raised therein also being extraneous to the decision appealed.
I will restate the point I made in A.G, KWARA STATE v. LAWAL & ORS (2017) LPELR – 42347 (SC) that there is a distinction between preliminary objection and ground of appeal. The main objective of preliminary objection is to terminate the suit in limine without going to its merits or substance. The usual complaint in preliminary objection is that the suit is incompetent and therefore should not be heard because the Court lacks jurisdiction to hear and determine the merits of it: NEPA v. ANGO (2001) 15 NWLR (pt. 737) 627 (SC); NDIGWE v. NWUDE (1999) 11 NWLR (pt. 626) 314 (SC). On the other hand, a ground of appeal attacks the correctness of the decision appealed on a point or issue, and if successful, the ground of appeal and issue raised therefrom invariably leads to the setting aside of the decision on that point.
The point canvassed in Ground One and issue one raised therefrom for the determination of the appeal at the lower Court, which that Court acceded to howbeit wrongly, was that the suit was incompetent, the Writ of Summons commencing it being void by reason of the fact that it was settled or signed by a law firm – J. Odion Ezezoobo & Co, an entity unknown to law. The defendants at the trial Court having not raised any objection to the Writ of Summons and having also acquiesced in the defect were subsequently estopped from formulating objection thereto by the fact of their taking active steps in the proceedings leading to the trial Court’s final judgment: ARIORI v. ELEMO (supra); Section 168 (1) of the Evidence Act, 2011. In this regard a ground of appeal is not an acceptable procedure for raising preliminary objection (that had been abandoned and/or waived) and doing so will be unconscionable, equity acting in personam; delay defeats equity and equity follows the law and public policy in ensuring that there must be an end to litigation. A party in litigation must be consistent. He cannot prevaricate, and therefore on one issue or point he must not be encouraged to approbate and reprobate at the same time. That is the mischief estoppel by conduct seeks to restrain and exterminate in the administration of justice. The Supreme Court, being both a Court of justice and a policy Court must take a consistently robust stance on this. Strict compliance with the rules of Court makes administration of justice quicker: SOLANKE v. SOMEFUN (1974) 1 ALL NLR 586 (SC) at 592; F.B.N. V. ABRAHAM (2008) 362 NSCQR 1056 at 1076.
Undue application or extension of the principle in NWEKE v. OKAFOR (supra), without any attempt at distinction, is now stretching the principle to a breaking point, and leading invariably to substantial injustice (as in my opinion was the situation in AJIBODE v. GBADAMOSI (2021) 7 NWLR (pt. 1776) 475 (SC). Parties with bad cases, who by conduct had waived their right in law to object to defective process at the trial would later, after several years at the appellate Courts, surface with a ground of appeal as subterfuge to raise in substance an issue that clearly amounts to preliminary objection. These days the Courts abhor technicality and have moved from undue reliance on technicality to doing substantial justice. In other words, as this Court has laid down in several authoritative judicial policy declarations, it is no longer the duty of the Court to give undue prominence to technicality at the expense of justice: NWOBODO v. ONOH (1984) 1 SCNLR 1; OWURU v. INEC (1999) 10 NWLR (pt. 622) 201; NWOLE v. IWUAGWU (2004) 15 NWLR (pt. 895) 61; IDRIS v. ANPP (2008) 8 NWLR (pt. 1088) 1 at 91; just to mention a few.
Finding, as I do, no defect that vitiated the Writ of Summons and the indorsement thereon at pages 1 and 2 of the Record of appeals; and that the defendants at the trial Court had waived their right to the preliminary objection and accordingly estopped from raising the said objection vide Ground One of the Notice of Appeal (from which issue one had been raised) before the lower Court; I hereby allow the appeal and set aside the decision of the lower Court appealed. In my firm view, the lower Court had been hoodwinked and thereby succumbed to sheer arcane technicality, a clear antithesis of doing substantial justice in the matter.
Appeal allowed. I make no order as to costs.
Appearances:
Johnson Odion Esezobo, Esq. For Appellant(s)
Adedapo Tunde-Olowu, FCIArb, with him, Davidson Oturu, Esq. and Elex – for 1st Respondent For Respondent(s)
