THE REGISTERED TRUSTEES OF TIMBER DEALERS ASSOCIATION ABA & ORS v. ABA NORTH LOCAL (2014)

THE REGISTERED TRUSTEES OF TIMBER DEALERS ASSOCIATION ABA & ORS v. ABA NORTH LOCAL

(2014)LCN/7603(CA)

REGISTERED TRUSTEES OF UNITED AFRICAN METHODIST CHURCH v. KENNETH ENEMUO

(2014) LPELR-24071(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of December, 2014

CA/L/1238/2010

RATIO

COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO A TRIAL AND HOW TO DETERMINE WHETHER A COURT IS CLOTHED WITH JURISDICTION

It is trite that where a Court lacks jurisdiction over a matter, it lacks the ‘vires’ to entertain and deliberate on such a matter. The issue of jurisdiction therefore poses a crucial question of competence and a defect in it snuffs out the competence of a Court. In the absence of jurisdiction, the entire proceedings, trial, findings, orders and pronouncement of a court are rendered futile, invalid, null and void ab initio however brilliantly the proceedings were conducted. See the cases of Ajuwa v SPDC (Nig) Ltd (2008) 10 NWLR (Pt.1094) 64 @ 96 B-G; Matari v Dangaladima (1993) 3 NWLR (Pt.281) 266; Oke v Oke (2006) 17 NWLR (Pt.1008) 224. To determine whether a Court is clothed with jurisdiction to adjudicate over a matter, the Courts have always applied the golden rule as encapsulated in the time-honoured dictum of Madukolu v Nkemdilim (1962) 2 SCNLR 341 to the effect that a court is competent when:
(a) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Where all the three conditions listed above for the exercise of jurisdiction co-exist, a Court is said to have competence and jurisdiction. However any defect in competence would be fatal as the proceedings are a nullity however well conducted and decided: See Chevron (Nig.) Ltd. v. Warri North L.G.C. (2003) 5 NWLR (Pt.812) 28 @ 44 B-E; Adigun v. Osaka (2003) 5 NWLR (Pt.812) 95 @ 131 B-E, 134 B-C per. CHINWE EUGENIA IYIZOBA, J.C.A.

PRACTICE AND PROCEDURE: SIGNING COURT PROCESSES; WHETHER IT IS ONLY A REGISTERED LEGAL PRACTITIONER THAT CAN SIGH PROCESSES BEFORE A COURT

JUSTICE

RITA NOSAKHARE PEMU justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR justice of The Court of Appeal of Nigeria

Between

REGISTERED TRUSTEES OF UNITED AFRICAN METHODIST CHURCHAppellant(s)

AND

KENNETH ENEMUORespondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Onigbanjo J. of the High Court of Lagos State in Suit No IKD/17/2002 delivered on the 12th day of May, 2010 declaring the Respondent the rightful owner entitled to a Statutory Right of Occupancy over the disputed land. By a Writ of Summons filed on the 19th day of February, 2002, the Respondent as Claimant sought a declaration that he was the rightful owner and entitled to statutory right of occupancy of a parcel of land situate at Aina Asoloye Street, Eleja, Ikorodu, Lagos State measuring 1006.377 square meters; perpetual injunction restraining the Appellant/Defendant from trespassing on the said Land; possession of the said parcel of Land; and the sum of N320,000.00 being special and general damages for trespass and destruction of the Claimant’s concrete block fence over the Land.

The Respondent’s case is that the parcel of Land in dispute formed part of a large tract of land belonging to the Lowa family of Ikorodu, Lagos State from time immemorial. The Respondent’s Predecessor-in-title, Alhaja Abiola Banjoko now deceased, was a member of the Lowa Family. In the course of time, the Lowa Family conducted a Survey of their large parcel of Land and partitioned the said land into plots identified as Plots A-I. By Deed of Conveyance dated 10th March, 1978 and registered as 16/16/1708 at the Lands Registry Lagos State, the accredited Legal Representatives of the Lowa Family granted the Respondent’s Predecessor-in-title the plot known as Plot F in the large parcel of Land belonging to the Lowa Family. On the 23rd of June, 2000, the Respondent’s Predecessor-in-title transferred her entire rights and interest in Plot F to the Respondent. The Respondent proceeded to fence Plot F with block wall, which was subsequently pulled down and destroyed by the Appellant.

In its 3rd Amended Statement of Defence dated 21/01/10, the Appellant contended that it purchased the same piece of Land from the accredited Representatives of the same Lowa Family of Ikorodu on or about the 27th of November, 1981. The Appellant stated that it also purchased another parcel of Land beside the Land in dispute on which it erected its Auditorium while it used the Land in dispute for parking and open air services. The Appellant insists that it had been using the parcel of land in dispute since 1981 until 2001 when the Respondent began to lay claim to it.

At the conclusion of the trial, the Learned Trial Judge entered judgment partially in favour of the Respondent by declaring the Respondent the rightful owner entitled to a Statutory Right of occupancy over the parcel of Land; granting a perpetual injunction restraining the Defendant from trespassing on the said Land; granting the Respondent exclusive possession of the said parcel of Land forthwith; and the sum of N270,000.00 general damages for the Appellant’s admitted destruction of the Claimant’s concrete block fence. The Learned Trial Judge however refused to grant the Claimant’s claim for special damages and the claim for the cost of the action.

The Appellant, dissatisfied with the Judgment, has appealed to this court on 7 grounds. In his brief of argument, learned counsel for the appellant first raised a preliminary objection that the lower court had no jurisdiction to entertain the suit as the writ of summons was signed by a law firm. In the alternative, out of the 7 grounds of appeal, counsel formulated three issues for determination.

I shall go straight ahead to consider the preliminary objection. The Appellant is challenging the validity of the Originating Processes viz the Writ of Summons and the Statement of Claim on the ground that the said processes were signed by an entity that was neither the Respondent nor a duly registered Legal Practitioner contrary to the requirements of Order 6 Rule 2(2) of the High Court of Lagos State (Civil Procedure) Rules 1994 which provides that Originating Processes shall be signed by a Legal Practitioner or the Plaintiff himself where he sues in person. It is the submission of the Appellant that pursuant to Section 2(1) of the Legal Practitioners Act as amended, “… a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is in the roll”.

Learned Counsel further submitted that Section 24 of the Legal Practitioners Act as amended defines a Legal Practitioner as …”a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor; either generally or for the purposes of any particular office or proceedings”. Counsel argued therefore that only human beings called to the Bar can sign documents and that any process signed by a Law Firm, not being a Legal Practitioner is incompetent. In support of his argument, Learned Counsel referred this Court to the following Supreme Court cases: Okafor v Nweke (2007) 10 NWLR (Pt.1043) 521 @ 531-532; Oketade v Adewunmi (2010) 8 NWLR (Pt.1195) 63 @ 74 81 and 82; SLB Consortium Ltd v Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt.1252) 317.

Learned counsel for the Respondent while admitting that the omission to endorse his name on the Writ of Summons and Statement of Claim is contrary to the combined effect of Order 4 Rule 10 and Order 6 Rule 2(2) of the High Court of Lagos State (Civil Procedure) Rules 1994, contended that the said omission is only an irregularity which should not nullify the proceedings of the Lower Court and the judgment entered therein. In support of his argument, Counsel referred this Court to Order 5 Rule 1(1) of the High Court of Lagos State (Civil Procedure) Rules 1994 which provides that “Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceeding, there has been by reason of anything done or left undone, a failure to comply with the requirements of these rules whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein”.

It is the submission of Learned Counsel that the omission of the Counsel to the Respondent to endorse his name on the Writ of Summons and Statement of Claim is an irregularity which is protected by Order 5 Rule 1(1) of the High Court of Lagos State (Civil Procedure) Rules 1994. In support of his submission, Counsel cited the Supreme Court case of D.A. Faseun & Ors (1967) N.M.L.R. 66 where the Apex Court posited that

“The omission to indorse the name and address of a legal practitioner on the Writ as required by these Rules is however, an irregularity only and does not affect the substance of the Suit”.

Learned Counsel also submitted that the Appellant cannot properly challenge on appeal, the competence of the Writ of Summons and Statement of Claim filed by the Respondent at the Lower Court 10 years ago and that the Appellant’s Preliminary Objection ought to have been raised at the Lower Court. In support of his submission, Counsel referred this Court to the provision of Order 5 Rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules 1994 which provides that an application to set aside proceedings for irregularity should be made within reasonable time and before the party applying has taken fresh steps after becoming aware of the irregularity. Counsel referred the Court to its decision in Adams v Umar 2009) 5 NWLR (Pt.1133) 41 @ 116 to the effect that “… where the wrong procedure was adopted in commencing a suit and no objection to the procedure was timeously raised by the opposing party, the proceeding based on such wrong procedure is valid’. This Court held further in the above case that “once a step is taken in a proceeding, by a party complaining about the breach of the rules of court, he is said to have waived the breach”.

Learned Counsel further submitted that it is also incompetent for the Appellant to raise the issue of a defective Writ before the Court of Appeal because there was no decision on the competence of the said Writ by the Lower Court against which a complaint can now be made at the Court of Appeal. Counsel cited the case of Adegoke Motors Ltd v Adesanya & Anor (1989) 3 NWLR (Pt.109) 250 where the Supreme Court held that “The Supreme Court cannot make any pronouncement on the endorsement or Service of Writ of Summons when such an issue was never placed before the lower courts”.

In reply to the Respondent’s Brief, the Appellant submitted that the Respondent’s position is a misconception of the law having regard to the legal position of law on the competency of the suit commenced, issued and signed in the name of a Law Firm. In addition to the Authorities he previously cited, Learned Counsel further referred this Court to the following Supreme Court cases: Brathwaite v Skye Bank (2013) 5 NWLR (Pt.1346) 1 @ 17F-G; FBN v Maiwada (2013) 5 NWLR (Pt.1348) 444.

I have carefully considered the arguments of both counsel on this preliminary objection. The issue is one of jurisdiction. It is trite that where a Court lacks jurisdiction over a matter, it lacks the ‘vires’ to entertain and deliberate on such a matter. The issue of jurisdiction therefore poses a crucial question of competence and a defect in it snuffs out the competence of a Court. In the absence of jurisdiction, the entire proceedings, trial, findings, orders and pronouncement of a court are rendered futile, invalid, null and void ab initio however brilliantly the proceedings were conducted. See the cases of Ajuwa v SPDC (Nig) Ltd (2008) 10 NWLR (Pt.1094) 64 @ 96 B-G; Matari v Dangaladima (1993) 3 NWLR (Pt.281) 266; Oke v Oke (2006) 17 NWLR (Pt.1008) 224.

To determine whether a Court is clothed with jurisdiction to adjudicate over a matter, the Courts have always applied the golden rule as encapsulated in the time-honoured dictum of Madukolu v Nkemdilim (1962) 2 SCNLR 341 to the effect that a court is competent when:
(a) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Where all the three conditions listed above for the exercise of jurisdiction co-exist, a Court is said to have competence and jurisdiction. However any defect in competence would be fatal as the proceedings are a nullity however well conducted and decided: See Chevron (Nig.) Ltd. v. Warri North L.G.C. (2003) 5 NWLR (Pt.812) 28 @ 44 B-E; Adigun v. Osaka (2003) 5 NWLR (Pt.812) 95 @ 131 B-E, 134 B-C

In the instant case, Learned Appellant’s counsel submitted that the Originating Processes are incompetent on the ground that the said processes were signed by an entity that was neither the Respondent nor a duly registered Legal Practitioner contrary to the requirements of Order 6 Rule 2(2) of the High Court of Lagos State (Civil Procedure) Rules 1994. Section 24 of the Legal Practitioners Act as amended, Cap L11, Laws of the Federation of Nigeria 2004, defines a Legal Practitioner as:
“……a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor; either generally or for the purposes of any particular office or proceedings’; and section 2(1) of the Legal Practitioners Act as amended states that “… a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is in the roll”.
Obviously a firm of Legal Practitioners is not a Legal Practitioner within the definition of the Legal Practitioners Act.

The law is settled that only a registered Legal Practitioner can sign processes before a court of law: Okafor v Nweke (2007) 10 NWLR (Pt.1042) 521 and N.N.B. Plc. v Denclag Ltd (2005) 4 NWLR (Pt.916) 549 @ 502 – 503 F – B.
In the case of Okafor v Nweke (Supra) which both parties cited in their various briefs, the Applicants therein filed a motion on notice for extension of time within which to apply for leave to cross appeal, leave to cross appeal against the judgment of the Court of Appeal and extension of time within which to file the Appellant’s notice of cross appeal. The motion, supporting affidavit and brief of argument in support were all signed by JHC Okolo SAN & Co. The Respondents filed a Counter Affidavit in opposition to the application raising the issue of competence of the Applicant’s motion, notice of cross appeal and applicant’s brief of argument in support. The Supreme Court in a considered judgment held inter alia at P.532 H-A:
“Since both Counsel agree that JHC Okolo is not a legal practitioner recognized by law, it follows that the said IHC 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 applicant’s brief of argument in support of the said motion all signed by the firm known and called JHC Okolo SAN & Co are incompetent in law particularly as the said firm of JHC Okolo SAN & Co is not a registered Legal Practitioner.”
The Apex Court further held at p.533 B-H that:
“Legal Practitioners have formed the habit of signing court processes in their partnership or firm’s name without indicating the name of the practitioner signing the process. Such documents are incompetent and are liable to be struck out. In the instant case, the processes filed in the application, particularly the motion on notice filed on 19/5/05, the proposed notice of cross appeal and the applicant’s brief of argument in support of the motion were incompetent in that they were not issued by a legal practitioner known to law.”
The omission of Learned Counsel to insert his name in the Originating Processes does not amount to a mere procedural irregularity. It is a matter of substantive law provided for in the Legal Practitioners’ Act. The objection has in fact raised an issue of the jurisdiction of this Court to hear and determine the matter and an issue of jurisdiction is fundamental to adjudication and can be raised at any stage of the proceedings, even in the Supreme Court for the first time. See the case of SLB Consortium Ltd v Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt.1252) 317 @ 332 E-A cited by the Appellant where Onnoghen (JSC) in his leading judgment stated as follows:
“The argument that the objection ought to have been taken before the trial court and that it is rather too late in the day to raise same in this Court particularly as the respondents had taken steps in the proceedings after becoming aware of the defect or irregularities is erroneous because the issue involved in the objection is not a matter of irregularity in procedure but of substantive law…”.
The Supreme Court further confirmed its position on this issue in its recent decision in Brathwaite v Skye Bank (2013) 5 NWLR (Pt.1346) 1 @ 17 paras F-G; where Muhammed (JSC) held
“Having found that exhibits skye 1 and 3 have not been signed by a Legal Practitioner as required by both rules of the trial Court and extant provisions of the Legal Practitioners’ Act, the two originating processes are, on the authorities fundamentally defective and incapable of initiating any competent action.
Again in FBN v Maiwada (2013) 5 NWLR (Pt.1348) 444 the Supreme Court per Fabiyi (JSC) maintained its position in Okafor v Nweke (Supra) in the following words:
“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 process of our profession”.
Respondent’s counsel had submitted that the Supreme Court rendered the processes in Okafor v Nweke (Supra) incompetent because the Processes under consideration in that case namely the Notice of Motion, the Notice of Cross Appeal and the Respondent’s Brief of Argument were filed in the Supreme Court, while in this case, the Appellant is challenging the competence of the Writ of Summons and Statement of Claim filed by the Respondent at the Lower Court; and that the Appellant’s Preliminary Objection therefore ought to have been raised at the Lower Court and not before this Court. There is no merit in this argument. The Supreme Court did not render the Processes in Okafor v Nweke (Supra) incompetent because the said processes were filed in the Supreme Court. The Supreme Court in the said case, considering processes filed in court, observed “… it follows that the said JHC Okolo SAN & Co cannot legally sign and/or file any process in the courts and held that “Such documents are incompetent and are liable to be struck out”, referring to all documents filed in court. The Apex Court did not make any distinction on the basis of the court in which the document was filed and the Legal Practitioners Act did not make any such distinction either. It follows that any process before any court that is not signed by a Legal Practitioner is incompetent and liable to be struck out. Chuks Ikokwu & Co cannot legally sign and/or file any process in the courts and as such the Writ of Summons and Statement of Claim signed by the firm known and called Chuks Ikokwu & Co are incompetent as the said firm of Chuks Ikokwu & Co is not a registered Legal Practitioner. Clause C as enunciated in Madukolu v Nkemdilim (Supra) to the effect that a case must come before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction is lacking in the instant case. The Originating Process filed in the Lower Court not having complied with the condition precedent to the commencement of this action, the Lower Court as well as this Court has no jurisdiction to entertain the suit and as a corollary; the judgment of the Lower Court is rendered a nullity. See Akingbehin v Thompson (2008) 6 NWLR (Pt.1083) 790 279 where the Court stated thus:
“Where a condition precedent for the exercise of the court’s jurisdiction has not been fulfilled, such a court lacks the requisite jurisdiction or competence to adjudicate in the matter or suit, and where a court lacks jurisdiction to adjudicate in a proceedings, such proceedings when conducted is or amounts to a nullity however well or beautifully conducted it might have been”.
This defect in competence is fatal. The Lower Court lacked the necessary jurisdiction to entertain this suit. I hold that the proceedings of that Court are a nullity. Many counsel have learnt that whenever this unfortunate scenario presents itself, no kind of ingenious argument can salvage the situation as the Supreme Court has in a long line of decided cases made its stand on the issue clear beyond peradventure. It is a waste of time to challenge the status quo; as unfortunate as the situation is for the litigants. The preliminary objection succeeds and is upheld. The appeal is meritorious and is hereby allowed. The Judgment of Onigbanjo J. of the High Court of Lagos State in Suit No IKD/17/2002 delivered on the 12th day of May 2010 is set aside as a nullity. I make no order as to costs.

RITA NOSAKHARE PEMU, J.C.A.: I have read before now, in draft, the lead Judgment just delivered by my brother CHINWE EUGENIA IYIZOBA J.C.A., and I cannot but agree totally with her reasoning and conclusion.

In a motley of decided cases, the principle has been put to rest, that the objection that a Court has no jurisdiction to entertain a matter is not just an ordinary point of law.
This is because there must be jurisdiction before adjudication – MADUKOLU V. NKEMDILIM (1962) 1 All NLR. 587.
Therefore a Court of law would not be clothed with Jurisdiction in whatever form, to adjudicate upon a matter, if there is a feature of the case that denies it jurisdiction – KOTOYE V. SARAKI (1994) 7 NWLR (PT.357) 414.

Let me emphasis this hypothetically. Fault of counsel, for instance if he fails to, or delay in filing an appeal timeously, can be overlooked, if there is good and substantial reason for the delay – NWADIKE V. NWADIKE (1987) 4 NWLR (PT.65) 394. Counsel’s sins are usually not visited on litigants.
But where a condition precedent for courts’ being seized of Jurisdiction is absent, for instance where, as in the present case, counsel fails to sign the originating process in a manner according to law, that lacuna cannot cure the Courts’ lack of jurisdiction in the first place.
The process becomes incurably defective and dead. It can never be resurrected.

I adopt the Judgment as mine and make the same consequential order.

JAMILU YAMMAMA TUKUR, J.C.A.: My lord Chinwe Eugenia Iyizoba JCA, has afforded me the opportunity of reading before today the judgment just delivered.

I agree with the reasoning and conclusions. I too allow the appeal and abide by the consequential orders contained therein.
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Appearances

Adewale Adesokan Esq.For Appellant

AND

Oge Enyindah Esq.For Respondent