THE GOVERNOR, BORNO STATE & ORS v. ALHAJI TIJJANI GONI MOHAMMED
(2019)LCN/12639(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of February, 2019
CA/J/29/2018
RATIO
JURISDICTION: IMPORTANCE OF JURISDICTION
“Jurisdiction is of paramount importance in the process of adjudication. It is so fundamental that every step taken in the proceedings without it is a nullity and liable to be set aside, no matter how well conducted. See: MADUKOLU V. NKEMDILIM (1962) 2 SCLR 341; (1962) 2 ALL NLR 587 @ 594; SKENCONSULT (NIG). LTD. V. UKEY (1981) 1 S.C. 6 @ 52; INAKOJU V. ADELEKE (2007) 4 NWLR (PT. 1025) 427 @ 588 F; ATTORNEY GENERAL FOR TRINIDAD AND TOBAGO V ERICHIE (1893) AC 518, 522; TIMITIMI V. AMABEBE 14 WACA 374; MUSTAPHA V. GOVERNOR OF LAGOS STATE [1987] 2 NWLR (PT. 58) 539; UTIH V ONOYIVWE [1991] 1 NWLR (PT. 166) 206. It is because of the futility of proceedings conducted without jurisdiction that the issue may be raised at any stage of the proceedings, in any manner and even for the first time on appeal before the apex Court. NDUUL V. WAYO & ORS. (2018) LPELR 45151 (SC); IDISI V. ECODRIL (NIG.) LTD. & ORS. (2016) LPELR 40438 (SC).” PER UCHECHUKWU ONYEMENAM, J.C.A.
ACTION: WHERE AN ORIGINATING SUMMONS IS DEFECTIVE
“It is settled law that a fundamentally defective document such as an Originating process cannot be amended to infuse life into it. In other words, a fundamentally defective originating process cannot be cured by an amendment of same nor can anything be added to it, the well-known adage being that you cannot put something on nothing and expect it to stand. You can only validly amend a valid originating process, not a fundamentally defective one which in the eye of the law does not exist. See: NWAIGWE & ORS V. OKERE ANOR (2008) 5 SCNJ 256 @ 274; OKWUOSA V. GOMWALK & ORS (2017) LPELR 41736 (SC); (2008) 5 SCNJ 256 @ 274.” PER UCHECHUKWU ONYEMENAM, J.C.A.
ACTION: WHERE THE WRIT OF SUMMONS IS SIGNED IN THE NAME OF THE LAW FIRM
“The position of the law on the subject as established by a long line of Supreme Court decisions is that such a process is a nullity and it is void ab initio and it cannot sustain a cause of action and a judgment predicated on such a process must be set aside. It is a requirement of substantive law, and not of procedural law, and thus it cannot be waived and it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by such signing of the Court process and it is an issue that can be raised even at the Supreme Court for the first time – Okafor vs Nweke (2007) 10 NWLR (Pt 1043) 521, Oketade vs Adewunmi (2010) 8 NWLR (Pt 1195) 63, SLB Consortium Ltd vs NNPC (2011) 9 NWLR (Pt 1252) 317, Braithwaite vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc vs Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444, Alawiye vs Ogunsanya (2013) 5 N WLR (Pt 1348) 570, Minister of Works and Transport, Adamawa State Vs Yakubu (2013) 6 N WLR (Pt 1351) 481 and Okarika Vs Samuel (2013) 7 NWLR (Pt 1352) 19.” PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
1. THE GOVERNOR, BORNO STATE
2. THE COMMISSIONER OF LAND AND SURVEY, BORNO STATE
3. ATTORNEY-GENERAL, BORNO STATE Appellant(s)
AND
ALHAJI TIJJANI GONI MOHAMMED Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment):
This appeal emanates from the decision of the High Court of Borno State sitting at Maiduguri, delivered on 27th September, 2017 in suit No. M/165/2004 delivered by P. H Nggada, J. wherein judgment was entered in favour of the Respondent.
By an amended Writ of Summons dated 14th December, 2004, the Respondent herein as Plaintiff sued the Appellants as Defendants before the trial Court, claiming for the reliefs contained in paragraph 19 of his amended statement of claim accompanying the amended Writ of Summons. He claimed against the Appellants jointly and severally for the following reliefs, thus:
a.A declaration that the purported revocation of the Plaintiff’s Right of Occupancy No. Bo/48432 by the Defendants is unlawful, illegal and unconstitutional.
b. An Order setting aside the letter dated 14th September, 2004 revoking the Plaintiff’s Right of Occupancy No. BO/48432 or any other letter or instrument to that effect.
c. An Order of injunction restraining the Defendants, their agent and privies from interfering or further interfering with the Plaintiff?s Right of Occupancy No. Bo/48432 without lawful cause.
From the record, facts of the case are that, the Respondent in 2002 applied to the 1st Appellant for the purchase of house No. 2, Gombole Road, Old GRA Maiduguri belonging to the Borno State Government. Meanwhile the house had been allocated to one Alh. Jidda Ruffai (deceased), a civil servant, who had been in its occupation since its allocation to him by the Borno State Government in 1995; as a tenant. That by the introduction of the Borno State policy to dispose of all Government quarters to the people of Borno State particularly the civil servants in occupation of the houses, while empty or non-occupied quarters were to be sold to the public; Alh. Jidda applied to purchase house No. 2, Gombole Road, Old GRA Maiduguri which he occupied. Incidentally, the Respondent also had applied for the purchase of the same property.
The Respondent’s application was processed and considered first and accordingly the house sold to him instead of Alh. Jidda. It is further the fact that, upon the coming into power by a new Government in 2003, many complaints on the abuse of the housing policy were received and a committee was set up to look into the issue whereupon it was discovered that many occupants of the Government quarters were denied the opportunity to purchase the houses they occupied. Based on the foregoing, the committee recommended to the government to revoke all the Rights of Occupancies granted over the houses bought by non-occupants where such houses were occupied at the time of purchasing same to enable the occupants purchase same in accordance with the government policy.
The committee’s recommendation was followed and the government consequently revoked the Respondent’s Certificate of Occupancy No. BO/48432. Aggrieved with the revocation, the Respondent filed suit with No. M/165/2004 challenging the said revocation. After trial, judgment was delivered on 31st December, 2012 in favour of the Respondent. Being dissatisfied with the judgment of the trial Court, the Appellant herein appealed to this Court in Appeal No. CA/J/145/2013; wherein judgment was delivered on 28th September, 2016. This Court allowed the appeal in part and set aside the judgment of the trial Court and ordered for a retrial before a different judge of the High Court of Borno State.
It was the case of the Appellant that upon the assignment of the case to U. B. Bwala J. as he then was (now retired) for trial de novo, the Respondent filed a Motion on Notice to amend his Writ of Summons which was signed by Haruna Mshelia & Co., as seen in page 2 of the record. Upon being served with the said motion, the Appellant filed a counter affidavit and in addition filed a motion No. BOHC/MG/CV/12MA/2017 seeking to strike out the Respondent’s suit No. M/165/2004 on the ground that the Writ of Summons, was issued and signed by a Law Firm and not by a legal practitioner. The trial Court ignored the challenge to its jurisdiction to hear and determine suit No. M/165/2004 and granted the application without pronouncing whether or not it has the jurisdiction to entertain same. Shortly after the amendment of the defective Writ of Summons, Bwala J. retired and P. H. Nggada J. took over and continued from where Bwala J. stopped.
It was also the case of the Appellant that he being dissatisfied with the ruling of the trial Court without jurisdiction, applied to the trial Court to set aside its ruling for want of jurisdiction but the Court dismissed the application. Being dissatisfied again, the Appellant then appealed to this Court in appeal No. CA/J/265/2017 challenging the trial Court’s ruling refusing to set aside its ruling granting the amendment of the Respondent’s defective Writ of Summons; upon filing the appeal, the Appellants applied for a stay of proceedings before the trial Court, but the trial Court dismissed same and the Appellants later filed a similar motion before this Court and drew the attention of the trial Court that appeal has been entered, yet the trial Court ignored and ordered that the case be proceeded to hearing wherein hearing commenced on 7th August, 2017.
At the trial, the Respondent led evidence as PW1 and tendered 7 documents marked as Exhibits T1 – T7 and closed his case and matter adjourned for defence. Before the return date the Appellants filed an application seeking leave to tender and rely on the evidence of one Jidda Ruffai (deceased) earlier given in this case in 2009, being the only evidence the Appellants intended to use. The trial Court dismissed the application and the Appellants closed their case without any witness. The parties filed, exchanged and adopted their respective addresses on 7th September, 2017.
In its considered judgment delivered on 27th September, 2017, the trial Court granted all the claims/reliefs of the Respondent against the Appellants jointly and severally.
Aggrieved and dissatisfied with the said judgment, the Appellants now appealed to this Court via a Notice of Appeal dated and filed on 10th November, 2017 containing 3 grounds of appeal. Parties filed their briefs of argument in line with the rules of this Court. Thereafter, the appeal was heard on 6th November, 2018. Mr. B. Adamu adopted the Appellants’ brief filed on 21st June, 2018 and relied on same as the Appellants’ argument in the appeal in urging the Court to allow the appeal.
On the Respondent’s side, Mr. J. O. Uroko holding the brief of U. Tatama adopted and relied on his brief filed on 6th August, 2018 in urging the Court to dismiss the appeal.
While Mr. Adamu who prepared the Appellants’ brief distilled 2 issues, Mr. Tatama raised a lone issue in the Respondent’s brief.
The 2 issues formulated in the Appellants’ brief are:
1. Whether the learned trial Court judge was right in assuming jurisdiction to hear and determine suit no. M/165/2004 in view of the plethora of authorities decided by our Apex Court and this Honourable Court which laid down the principle of law that once a Court process is signed by a law firm it render same incompetent and robbed the Court of jurisdiction such as the instant Writ of Summons signed by Haruna Mshelia & Co.
2. Whether the defective Writ of Summons which the trial Court amended had cured the defect associated with the Writ of Summons so as to clothe the trial Court with jurisdiction to hear and determine suit No. M/165/2004.
Meanwhile, the lone issue distilled by the Respondent’s Counsel is thus:
1. Whether at the material time, the Borno State High Court commenced the hearing and determination of the Respondent’s case to wit: 7th day of August, 2017, the Court was clothed and or possessed of the requisite jurisdiction to hear and determine same?
I have carefully examined both sets of issues for determination raised by parties and the Grounds of Appeal; it is my view that the 2 issues raised by the Appellants’ Counsel echoes the same tune with the lone issue nominated by the Respondent’s Counsel, only that the Respondent’s Counsel combined the Appellants’ 2 issues as a sole issue. I shall adopt the sole issue raised by the Respondent to determine the appeal.
SUBMISSIONS ON THE LONE ISSUE
Mr. Adamu for the Appellants submitted that a Writ of Summons being an originating process is the foundation upon which an entire suit stems and as such for a suit to be heard and determined the writ must be valid as there cannot be a valid suit without a valid Writ of Summons. He cited: ABIODUN V. F.R.N. (2016) 9 NWLR (PT. 1516) 126. The learned Counsel referred to pages 1-2 of the record and contended that the Respondent?s Writ of Summons was signed by a law firm Haruna Mshelia & Co. and not a legal practitioner as required by the law and as such the writ is incompetent. He referred to:OKPE V. FANMILK (2017) 12 NWLR (PT. 1549) 282 AT 317- 318 PARAS. E-G; SECTIONS 2(1) AND 24 LEGAL PRACTITIONERS ACT; EMMANUEL OKAFOR & ORS. V. NWEKE & ORS (2007) 10 NWLR (PT. 1043) 521 AT 531-532 PARAS.G-A; FBN PLC V. MAIWADA (2013) 3 NWLR (PT. 1348) 444; ALAWIYE V. OGUNSANYA (2013) 5 NWLR (PT. 1348) 570, SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR (PT. 1252) 317; OLAGBENRO V. OLAYIWOLA (2014) 17 NWLR (PT. 1436) 313; AKANJI V. IBADAN NORTHEAST LGA (2017) LPELR 42180.
The learned Counsel for the Appellants stated that the questions to be answered and which the trial Court refused and failed to pronounce on are ‘whether Haruna Mshelia & Co., is a name recognized by law which can be found on the roll of legal practitioners’ and Whether Haruna Mshelia & Co. can by law sign and file an originating process such as Writ of Summons as in the case at hand The learned Counsel argued that if the answer to the above poser is in the negative, then the Writ of Summons signed by Haruna Mshelia & Co., in 2004 is defective, invalid and incompetent and as such robbed the trial Court of the jurisdiction to entertain the matter in suit No. M/165/2004. He referred to OKPE V. FAN MILK (supra) page 313 paras. D-G.
The learned counsel for the Appellant referred and reproduced the position of the trial Court at page 138 lines 5-10 of the record to contend that the trial Court misconceived the law therein in view of the position of the law stated in NIG. ARMY V. SAMUEL (2013) 14 NWLR (PT. 1375) 466 AT 483; OLAGBENRO V. OLAYIWOLA (SUPRA) 313 AT 368. He further referred to the holding of the trial Court at pages 137-138 of the record and contended that the position of the trial Court referred to in said pages on the state of amendment of an originating process is erroneous. Mr. Bulus Adamu Director Civil Litigation, in the Appellants? brief also submitted that once a Writ of Summons is defective as in this case, an amendment cannot cure the defect to cloth the Court with jurisdiction. He argued that in the circumstance, the defective process remained incompetent awaiting the Court to strike it out.
On the Appellants’ 2nd issue, the learned Counsel for the Appellants argued that since the Writ of Summons was defective, incompetent and void ab initio, no amount of amendment can cure the defect to clothe the trial Court with the jurisdiction to entertain suit No. M/165/2004. He submitted that since there was no valid Writ of Summons which would have been amended, the attempt to amend the Writ of Summons is to try to resurrect a dead horse, which is stone dead. He cited: NWAIGWE V. OKERE (2008) 5 SCNJ 256 AT 261; OLAGBENRO V. OLAYIWOLA (SUPRA); NIG. ARMY V. SAMUEL (Supra).
The learned counsel submitted that the position of the law that the Writ of Summons having been amended dates back to the time the original Writ of Summons was filed in 2004 is only applicable in respect of a valid Writ of Summons which is amended, but is not applicable in a case such as this, where the amended Writ of Summons was void ab initio which is only liable to be struck out.
He therefore urged the Court to hold that the amended Writ is incompetent, void ab initio and to strike it out; and resolve the issue in favour of the Appellants, allow the appeal and strike out suit No. M/165/2004.
Responding, Mr. Tatama of the learned Counsel for the Respondent started by submitting on the position of the law that a Court is only competent to hear and determine a case before it if three conditions exists or are fulfilled and he listed the 3 instances and stated that the Borno State High Court is a creation of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
He referred to: MADUKOLU V. NKEMDILILM (1962) 1 ALL NLR (PT. 4) 587 and Section 270 (1) & (2) of the 1999 Constitution (as amended).
The learned Counsel referred to pages 1-10; 11-38; 46-47 of the record to show that the Writ of Summons in Suit No. M/165/2004 was filed on 1st December, 2004; the application to amend the said writ was filed on 15th February, 2017; the Court’s ruling granting the application was on 25th May, 2017; and the case commenced on 7th August, 2017. He submitted that amendment of any process can be made at any stage of the proceedings and that any such amendment dates back to the time the process was originally filed. He cited: JATAU V. AHMED (2003) 5 MJSC 180 AT 194; OKADIGBO V. CHIDI (2015) ALL FWLR (PT. 792) 1650 AT 1672; OKORO V. OKORO (2011) ALL FWLR (PT. 572) 1749.
The learned Counsel further submitted that the effect of an amendment is that what stood before the amendment is no longer material and no longer defines the issues to be tried. ADEWUMI & ANOR V. A.G. EKITI STATE & ORS (2000) FWLR (PT. 92); (2002) 2 NWLR (PT. 751) 474 AT 506 PARAS. E-F; SCC (NIG) LTD. V. ELEMADU (2004) ALL FWLR (PT. 230) 1168.
He contended that since the Respondent’s Writ was filed on 1st December, 2004, but was amended by the order of the Court made on 25th May, 2017, that amendment took effect from the 1st December, 2004 and accordingly, the processes were validly pending before the trial Court.
The learned Counsel contended that the order of the trial Court granting the amendment of the Respondent’s Writ of Summons is still subsisting as the same has not been appealed against, nor set aside by an appellate Court. He referred to: KANU V. OBETA (2015) ALL FWLR (PT. 810) 1164 AT 1192; JOE BEST ESTATE DEV. & PROPERTIES LTD V. NZEGWU (2015) ALL FWLR (PT. 797) 753 AT 773; OGUNLEYE V. AINA (2013) ALL FWLR (PT. 682) 1681 AT 1712; NDAYAKO V. JIKANTORO (2004) 8 MJSC 163 AT 191-192. He further referred to the arguments of the Appellants in paragraphs 4:05, 4:06, 4:07, 4:08, 4:13, 4:15, 4: 18, 4:19 and 4:21 and contended that said arguments are out of point as the position of the trial Court at pages 137-138 cannot be faulted, quoting the relevant excerpt of the trial Court’s judgment. He contended that the cases of NWAIGWE V. OKERE (supra); OLAGBENRO V. OLAYIWOLA (supra); cited by the Appellants at paragraph 5:02 of their brief do not represent the correct position of the law as regards amendment of processes. He rather cited: ADEKEYE V. AKIN OLUGBADE (1987) 3 NWLR (PT. 60) 214; FAGUNWA V. ADIBI (2004) 12 NJS 1 AT 20-21.
The learned Counsel finally contended that the Appellants failed to show that a Court process no matter how bad cannot be amended, nor did they show that the order of the trial Court of 25th May, 2017 granting the amendment of the said Writ of Summons filed on 1st December, 2004, has been set aside. He urged the Court to hold that all the arguments canvassed by Appellants Counsel do not reflect the true position of the law and as such the appeal cannot be sustained.
The learned Counsel finally urged the Court to resolve the issue in favour of the Respondent, dismiss the appeal and affirm the decision of the trial Court in suit No. M/165/2004.
RESOLUTION OF THE ISSUE
I want to start by saying the parties fought their cases strongly and cited authorities which they showcased from their perspectives to sway the Court to decide in their favour respectively.
There is no dispute on the fact that the writ of summons filed on 1st December, 2004, was signed by Haruna Mshelia & Co. There was also no contention that said Haruna Mshelia & Co. is not a legal practitioner who can sign Court processes as stipulated by Sections 2(1) and 24 Legal Practitioners Act. Also not in dispute is the fact that Haruna Mshelia & Co having without the backing of the Legal Practitioners Act signed the Respondent’s writ of summons filed on 1st December, 2004, the said writ was incompetent. See: OKPE V. FANMILK (2017) 12 NWLR (PT. 1549) 282 AT 317-318 PARAS. E-G; SECTIONS 2 (1) AND 24 LEGAL PRACTITIONERS ACT; EMMANUEL OKAFOR & ORS. V. NWEKE & ORS (2007) 10 NWLR (PT. 1043) 521 AT 531-532 PARAS. G-A; FBN PLC V. MAIWADA (2013) 3 NWLR (PT. 1348) 444; ALAWIYE V. OGUNSANYA (2013) 5 NWLR (PT. 1348) 570, SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR (PT. 1252) 317; OLAGBENRO V. OLAYIWOLA (2014) 17 NWLR (PT. 1436) 313; AKANJI V. IBADAN NORTHEAST LGA (2017) LPELR 42180.
Also not in dispute is that the Respondent’s writ of summons filed on 1st December, 2004, was amended by the order of the lower Court made on 25th May 2017.
It is also not in contention that the said order amending the incompetent writ has not been set aside. The dispute here is whether a defective, invalid and incompetent originating process can be amended and whether the incompetence of the writ of summons robbed the trial Court of the jurisdiction to entertain the matter in suit No. M/165/2004.
Jurisdiction is of paramount importance in the process of adjudication. It is so fundamental that every step taken in the proceedings without it is a nullity and liable to be set aside, no matter how well conducted. See: MADUKOLU V. NKEMDILIM (1962) 2 SCLR 341; (1962) 2 ALL NLR 587 @ 594; SKENCONSULT (NIG). LTD. V. UKEY (1981) 1 S.C. 6 @ 52; INAKOJU V. ADELEKE (2007) 4 NWLR (PT. 1025) 427 @ 588 F; ATTORNEY GENERAL FOR TRINIDAD AND TOBAGO V ERICHIE (1893) AC 518, 522; TIMITIMI V. AMABEBE 14 WACA 374; MUSTAPHA V. GOVERNOR OF LAGOS STATE [1987] 2 NWLR (PT. 58) 539; UTIH V ONOYIVWE [1991] 1 NWLR (PT. 166) 206. It is because of the futility of proceedings conducted without jurisdiction that the issue may be raised at any stage of the proceedings, in any manner and even for the first time on appeal before the apex Court. NDUUL V. WAYO & ORS. (2018) LPELR 45151 (SC); IDISI V. ECODRIL (NIG.) LTD. & ORS. (2016) LPELR 40438 (SC).
The Appellants herein are challenging the jurisdiction of the trial Court to hear and determine Suit No. M/165/2004 that originated via an amended incompetent writ of summons. It is correct as posited by the Respondent?s counsel that amendment of a process can be at any time before judgment. However, where the justice of the case does not so warrant or where such amendment will overreach the other party, or is fraudulent or will change the character of the case; amendment will not be granted. See:CCG (NIG.) LTD. & ANOR. V. IDORENYIN (2015) LPELR ? 24685 (SC); SPDC (Nig.) Ltd. V. EDAMKUE & ORS. (2009) LPELR 3048 (SC); ADENIYI & ORS. V. OYELEYE & ORS. (2013) LPELR ? 21387 (CA). Also the position of the law is that once an amendment is duly made, it goes to the root of the document amended which is to say the amendment dates back to the date the process was filed. See: NUT TARABA STATE & ORS V. HABU & ORS. (2018) LPELR 44057 (SC); REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIG. V. NAMA (2014) LPELR 22372 (SC); SALAMI V. OKE (1987) 4 NWLR (PT. 63) 1 AT 17; JATAU V. AHMED (2003) FWLR (PT.151) 1837 AT 1896; ADEWUMI & ANOR V. A. G. EKITI STATE & ORS (2000) FWLR (PT. 92); (2002) 2 NWLR (PT. 751) 474 AT 506 PARAS. E-F; SCC (NIG.) LTD. V. ELEMADU (2004) ALL FWLR (PT. 230) 1168.
Notwithstanding what I have said above, the life question is, can a defective originating process be amended? The answer is in the affirmative where such originating process is not void ab initio, like where a notice of appeal is alleged defective because some of the grounds of appeal are incompetent while there are competent grounds that could sustain the appeal. See: NUT TARABA STATE & ORS V. HABU & ORS. (2018) LPELR ? 44057 (SC). Also where a name not known to law is used in an originating process, amendment could be granted. See: REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIG. V. NAMA (2014) LPELR ? 22372 (SC). However where an originating summons is void ab initio like when it is not initiated by due process, the process is incurably defective and cannot be subject to amendment.
It is settled law that a fundamentally defective document such as an Originating process cannot be amended to infuse life into it. In other words, a fundamentally defective originating process cannot be cured by an amendment of same nor can anything be added to it, the well-known adage being that you cannot put something on nothing and expect it to stand. You can only validly amend a valid originating process, not a fundamentally defective one which in the eye of the law does not exist. See: NWAIGWE & ORS V. OKERE ANOR (2008) 5 SCNJ 256 @ 274; OKWUOSA V. GOMWALK & ORS (2017) LPELR 41736 (SC); (2008) 5 SCNJ 256 @ 274.
In the instant case, the writ of summons filed by the Respondent in the eye of the law bears no signature having been signed by Haruna Mshelia & Co., in violation of Sections 2(1) and 24 Legal Practitioners Act. It is a crche principle of law that a process not signed by the maker is a worthless document and void ab initio. A document which is not signed does not have any efficacy in law. See: OMEGA BANK (NIG.) PLC. V. O. B. C. (SC). Accordingly, an unsigned process is only good for striking out and nothing more as any proceedings or order based on it is a nullity.
In the instant case therefore, the unsigned writ of summons by virtue of the fact that the referred process was not signed by a legal practitioner is incapable of being amended as the said writ is incurably defective. The purported amendment made on 25th May 2017, to validate the writ was made in error. The said order of the lower Court made on 25th May, 2017 amending the writ of summons filed on 1st December, 2004 which writ was signed by Haruna Mshelia & Co., is hereby set aside for incompetence. It means there was no valid writ of summons to stem Suit No. M/165/2004. I therefore hold that Suit No. M/165/2004 is incompetent. Consequent upon my holding, it follows that the trial Court was robbed of the jurisdiction to hear and determine Suit No. M/165/2004. In consequent therefore, the decision of the trial Court in Suit No. M/165/2004 is void and the same is set aside for want of jurisdiction. Suit No. M/165/2004 is liable to be struck out.
Finally, I resolve the sole issue in favour of the Appellants.
I hold that the appeal has merit. The same is allowed. I set aside the judgment of the High Court of Borno State delivered on 27th September, 2017 by P. H. Nggada for want of jurisdiction. I hereby strike out Suit No. M/165/2004.
No other as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.
The appeal raises the vexed issue of the signing of the writ of summons in the name of a law firm. The position of the law on the subject as established by a long line of Supreme Court decisions is that such a process is a nullity and it is void ab initio and it cannot sustain a cause of action and a judgment predicated on such a process must be set aside. It is a requirement of substantive law, and not of procedural law, and thus it cannot be waived and it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by such signing of the Court process and it is an issue that can be raised even at the Supreme Court for the first time – Okafor vs Nweke (2007) 10 NWLR (Pt 1043) 521, Oketade vs Adewunmi (2010) 8 NWLR (Pt 1195) 63, SLB Consortium Ltd vs NNPC (2011) 9 NWLR (Pt 1252) 317, Braithwaite vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc vs Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444, Alawiye vs Ogunsanya (2013) 5 N WLR (Pt 1348) 570, Minister of Works and Transport, Adamawa State Vs Yakubu (2013) 6 N WLR (Pt 1351) 481 and Okarika Vs Samuel (2013) 7 NWLR (Pt 1352) 19.
The twist added to the present case is that the said writ of summons was amended by the lower Court on the application of the Respondent, despite stiff opposition thereto by the Appellants that the lower Court had no jurisdiction to amend the process and the pendency of a motion on notice filed by the Appellants praying for an order striking out the writ of summons for being incompetent. The lower Court thereafter conducted trial on the strength of the amended writ of summons and entered judgment in favour of the Respondent. This appeal centers around the questions whether the lower Court possessed the power which it exercised to amend the writ of summons, and, if not, what is the effect on the proceedings conducted by the lower Court.
In Unity Bank Plc vs Denclag Ltd (2012) 18 NWLR (Pt 1332) 293, the Supreme Court held that an originating process, in that case a notice of appeal, that was signed in the name of a law firm could be amended and signed correctly in the name of a legal practitioner. However, the tenure of the decisions of the Supreme Court thereafter departed from that position and maintained that such a defective writ cannot be amended. In Minister of Works and Transport, Adamawa State Vs Yakubu supra the Supreme Court, per Muntaka-Coomassie, JSC stated:
“The questions that easily come to mind are that, can an incompetent originating process or processes be amended, or can the incompetence of the process be cured by amendment?…. The fatal effect of the signing of an originating process by a law firm is that the entire suit was incompetent ab initio. It was dead at the point of filing is …. The origination process…. is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment.”
The position was reiterated by Onnoghen, JSC (as he then was) in Nigerian Army vs Samuel (2013) 14 NWLR (Pt 1375) 466 at 483 thus:
“N. O. O. Oke & Co., is not a legal practitioner registered in Nigeria to practice law and thereby clothed with powers to sign/ frank legal documents and file same in the Court of law. It is also not a legal person known to law which makes its position worse…. The lack of legal personality is a fundamental defect which cannot be cured by an amendment. It is a defect that goes to the root of the proceedings and renders same void ab initio. In the eyes of the law, the notice of appeal in this case did not exist and can therefore not be accorded validity by an amendment. What is void is void. ”
Similar statements were made by the Supreme Court in Hamzat Vs Sanni (2015) 5 NWLR (Pt 1453) 486, Williams Vs Adold/Stamm International (Nig) Ltd (2017) LPELR 41559(SC), GT Bank Plc vs Innoson Nigeria Ltd (2017) LPELR 42368(SC), Nnalimuo vs Elodumuo (2018) LPELR 43898(SC), Dickson Ogunseinde Virya Farms Ltd Vs Societe General Bank Ltd (2018) LPELR 43710(SC). It is obvious from these statements that the lower Court lacked the power to grant the amendment of the writ of summons sought by the Respondent.
The necessary consequence of this finding is that the writ of summons upon which the proceedings leading to the judgment of the lower Court were conducted was fundamentally defective and void ab initio. This made the whole proceedings, as well as the judgment entered thereon by the lower Court, nullities – SLB Consortium Ltd vs NNPC supra.
It is for this reason and the fuller exposition of the law in the lead judgment that I too find merit in the appeal and I hereby allow same. I set aside the judgment of the High Court of Borno State delivered in Suit No M/165/2004 by Honorable Justice P. H. Nggada on the 27th of September 2017. I abide the consequential order striking out the suit in the lower Court and the order on costs in the lead judgment.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: Having read in draft the lead judgment of my learned brother UCHECHUKWU ONYEMENAM, JCA just delivered and having nothing useful to improve on the reasoning that the Writ of Summons is incompetent ab initio and the conclusion that the trial Court lacks the necessary jurisdiction to entertain the suit.
I have no hesitation in adopting the reasoning and conclusion there at to equally allow the meritorious appeal.
I also allow the appeal and abide by the consequential orders therein contained.
Appearances:
B. Adamu, Esq. (DCL, MOJ Borno)For Appellant(s)
J. O. Uroko, Esq. holding the brief of U. Tatama, Esq.For Respondent(s)
