THE SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED v. KENCHEZ NIGERIA LIMITED
(2018)LCN/11780(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of June, 2018
CA/PH/165/2011
RATIO
COURT PROCESSES MUST BE SIGNED BY PARTIES OR THEIR REPRESENTATIVES
There is a plethora of authorities that the processes of the Court must be signed either by the party concerned or by its Legal Practitioner duly recognised as such by the Legal Practitioners Act per AHMAD OLAREWAJU BELGORE, J.C.A
HOW AND WHEN A PRELIMINARY OBJECTION CAN BE RAISED
With respect, this Preliminary Objection is a challenge to the jurisdiction of this Court, and that of the trial Court to entertain the Cross-Appellants action as constituted. It does not matter how and when it was raised. It can be raised at any stage of the proceedings, even on appeal at the apex Court for the first time. It does not matter whether or not it is argued in the brief of argument. It can be raised orally without being reduced into writing per AHMAD OLAREWAJU BELGORE, J.C.A
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
THE SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED Appellant(s)
AND
KENCHEZ NIGERIA LIMITED Respondent(s)
AHMAD OLAREWAJU BELGORE, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the Ruling of the High Court of Rivers State, delivered by Honourable Justice R. I. Ahiakwo on the 22nd of February, 2011.
The Respondent commenced this action against the Appellant by way of Writ of Summons and sought for the following claims:-
(i) A declaration that the Claimant is the bonafide purchaser for value of the steel Pipes and/or goods forcibly removed by the defendant from the claimants premises in February, 2008
(ii) An Order of perpetual injunction restraining the defendant from further acts of trespass into the claimants premises and goods and/or further defamation of the claimant.
(iii) The sum of N1,262,134,220.00 (One Billion Two Hundred and Sixty Two Million, One Hundred and Thirty Four Thousand, Two Hundred and Twenty Naira) being and representing General losses and/or aggravated damages suffered by the claimant when the Defendant falsely and recklessly alleged that the Claimant had stolen its steel pipes and other goods and for trespass to the goods and premises of the Claimant in February, 2008.
(iv) An Order directing the defendant to return forthwith to the claimant the steel pipes carted away from the claimant premises by the defendant and being detained by the defendant till date.
The Respondent (being the claimant before the Court below) filed an application seeking for judgment in their favour because of the Appellants (the Defendant before the Court below) failure to enter appearance and file its defence within time. The Appellant filed a counter affidavit and later filed further affidavit in response to Respondent further counter affidavit.
The Appellant filed another application seeking for the order of Court below extending time within which to file and serve its statement of defence and other processes and order deeming the processes as properly filed and served. The Respondent only filed written address on point of law to this application. The two applications failed and the learned Trial Judge directed the Respondent to profer evidence if it so desires.
It is against the decision that the appeal is brought vide the Amended notice of appeal by the Appellant dated 11th December, 2014 containing four grounds of appeal to wit:
(1) The learned trial Judge misdirected himself in the manner in which he exercised his discretion as to whether or not to grant the Appellant extension of time to file its statement of defence, list of witnesses, witness depositions in support of its defence and to deem same as having been properly filed and served.
PARTICULARS OF MISDIRECTION
i. The application for extension of time to file its statement of defence etc. and to deem same as having been properly filed and served all relevant filing fees and penalty having been paid was made pursuant to Order 44 Rule 4 of the High Court Civil Procedure Rules 2006.
ii. Order 44 Rule 4 enjoins the Court to grant extension of time to take a procedural step.
iii. The Respondent did not file a counter affidavit to the motion in support of the application for extension of time filed by the Appellant.
iv. The trial Court failed to exercise its discretion properly by considering and or ordering the invocation of the proviso to Order 44 Rule 4 in the interest of Justice and when the application was also based on same.
v. The trial Judge gave undue weight to the fact that the Appellant did not explain the one month delay when there was no counter affidavit filed by the Respondent.
vi. The Court filled the gaps as to why it was to refuse application which said refusal was not borne out by evidence from the Respondent.
vii. The learned trial Judge adhored to technicalities over the substantial justice.
viii. The learned trial Judge closed its eyes to the statement of defence, which disclosed a substantial defence and other processes that had been filed and before it.
ix. The learned trial Judge failed to consider the merit of the defence before it.
x. By Order 5 Rule 1 of the High Court Civil Procedure Rules, 2006, failure to file the defence within time was an irregularity for which the Appellant sought to regularize same
xi. The learned trial Judge did not exercise his discretion in the interest justice.
xii. The learned trial Judge misapplied the decision inWILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) ALL NLR 1 and applied justice in accordance with technicality and not substantial justice.
xiii. The learned trial Judge failed to apply the Supreme Court decision in UBA V. DIKE NWORA (1978) 2 LRN 149.
xiv. In the aforesaid premises it was entirely in the interest of justice that the learned trial Judge grants the Appellants application for extension of time.
(2) The learned trial Judge misdirected himself in the manner in which he exercised his discretion when he held that there was no material upon which he could exercise his discretion to grant the Appellant application for extension of time to file his statement of defence, that of witness, witness depositions and document in support of its defence and to deem same as having been properly filed and served when he found that the Appellant failed to explain its lethargy within the period of one Month.
PARTICULARS OF MISDIRECTION
(i) The record shows that the Appellant had entered a conditional appearance on the 8th of March, 2010.
(ii) The record shows that the Appellant Preliminary Objection filed on the 8th of March, 2010 was predicated on Order 5 of the High Court Civil Procedure Rule, 2006
(iii) Order 5 Rule 2 of the High Court Civil Procedure Rules 2006 enjoined the party raising the challenge not to take any fresh step.
(iv) It is settled law that a successful grant of such a Preliminary Objection would have disposed the matter.
(v) The Respondent did not file any counter affidavit to the Appellant motion for extension of time.
(vi) The Court entertained submissions of counsel that were not based on evidence before the Court.
(vii) The Respondent conceded that it was in the interest of justice that the matter be heard on its merit.
(viii) The learned trial Judge failed to take relevant matters into consideration that the statement of defence, witness depositions, documents in support of defence all disclosed a defence on merits.
(ix) The learned trial Judge failed to consider the claim involved the colossal sum of N1,260,134,220.00 (One Billion Two Hundred and Sixty Two Million, One Hundred and Thirty Four Thousand, Two Hundred and Twenty Naira).
(x) The learned trial Judge failed to consider the proviso to Order 44 Rule 4.
(xi) The learned trial Judge failed to consider that the Appellant has shown full interest in the proceedings.
(xii) The lower Court’s discretion was not exercised judicially and judiciously in the overall interest of Justice and the rights of the parties.
(3) The learned trial Judge failed to exercise his discretion judicially and judiciously when he refused the Appellants application for extension of time to file its statement of defence, list of witness, witness deposition and document in support of its defence and to deem same as having been properly filed and served.
PARTICULARS OF MISDIRECTION
i. The learned trial Judge failed to consider that the statement of defence etc were already filed and were before the Court.
ii. The learned trial Judge failed to consider that there was no inordinate delay.
iii. The learned trial Judge failed to consider the stage of the proceeding.
iv. The learned trial Judge failed to consider that the Respondent admitted the content of the affidavit in support.
v. The learned trial Judge failed to consider the Proviso to Order 44 Rule 4.
vi. The learned trial Judges denial of the Appellants application has led to the denial of the Appellants right to fair hearing pursuant to Section 36 (1) of the constitutional of the Federal Republic of Nigeria 1999.
vii. The learned trial Judges denial of application breached audi alteram partem rule.
viii. Breach of the right to fair hearing renders the entire proceedings incompetent.
ix. The learned trial Judge failed to consider the attitude of the superior Court to deciding cases on their merits and not on their technicalities.
(4) The learned trial Judge erred in law when he fixed the case of the claimant for hearing.
PARTICULARS OF MISDIRECTION
i. The record shows that the suit was commenced by Writ of Summons supported by a statement of claim and other processes in accordance with the Rules of High Court of Rivers State, 2006.
ii. The record shows that the same was not commenced under the undefended list procedure or the summary judgment proceeding.
iii. The Appellant was willing to defend the case.
iv. The Appellant statement of defence disclose a defence on merits.
v. The Appellant had filed its defence and other processes in accordance with the High Court Civil Procedure Rules, 2006.
vi. The learned trial Judge refuse the Appellant application for extension of time to its defence etc. and to deem same as properly filed and served.
vii. Fixing the case for hearing in the absence of the Appellant defence relegated the Appellant to the position of a mere observer to the proceeding and not a defendant.
viii. Adjourning for the Claimant to prove its case while refusing to allow the defendant to be heard in defence of the claimants case is unconstitutional and in breach of the right to fair hearing and the audi alteram partem rule.
Brief of argument were filed and exchanged by the parties. The Appellant also filed a Reply Brief in response to the Respondent brief. There is a Cross-Appellant brief of argument and Cross-Respondent brief filed and exchanged by the parties.
In the Appellant brief, learned counsel for the Appellant Mrs Miannaya A. Essien, SAN, submitted two issues for our humble determination and they are:
1. Whether the Appellant was not denied its constitutional right of fair hearing when the trial Court dismissed its application for extension of time to file its defence, witness statements, list of documents and documents in support of its defence
- Whether the learned trial Judges decision wherein he dismissed the Appellant application for extension of time was right and based upon a proper exercise of discretion
On the trial issue, learned silk submitted that the Appellant was denied its right to fair hearing by the learned trial Judge when he shut the Appellant out of the case by refusing it leave to regularise its defence. He submitted that same was not in accordance with the settled law.
The learned silk referred this Court to Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the case of AKO V. ABUH (1988) 3 NWLR Part 85, P.969; OKOROIKE V. IGBOKWE (2000) 14 NWLR part 688 P. 498 503 -504 Paras G-A, SAIDU V. MOHAMMED (1988) 2 NWLR Part 536 P. 130 at P.139 Paras G-H.
Counsel submitted further that the Appellant had entered a conditional appearance, was always represented in Court by its counsel and even filed a Preliminary Objection.
Counsel referred us further to the cases of EZECHUKWU V. ONWUKA (2006) 2 NWLR (PT.963) 151 at 204; IKA LOCAL GOVT. AREA V. MBA (2007) 12 NWLR (PT.1049) P. 676; ESHENAKE V. GBINIJE (2006) 1 NWLR (PT.961) P. 228 p. 351 Paras B E.
Counsel submitted that the IKA LOCAL GOVT V. MBA (Supra) is applicable and the Rivers State High Court Civil Procedure Rules, 2006 are not superior to the constitution and therefore cannot be applied in breach of Appellant constitutional right.
Counsel submitted further that the failure to allow the Appellant to defend amounted to dispensing justice on the altar of technicalities.
The learned silk for the Appellant posited that since Appellant had filed its defence and other processes in accordance with the High Court Civil Procedure Rules, 2006 and same disclosed a defence on merits, that alone shows sufficient material and willingness of the Appellant to defend his case which the Court ought to have considered instead the learned trial Judge shut out the Appellant on technical ground.
Learned counsel finally submitted that judgment given in a circumstance of this nature where the Appellant was shut out on technical ground while the Respondent proceeded with proffering evidence in proof of his case is not judgment on merit and same is against the spirit of audi alteram partem rule and therefore breached the constitutional right of fair hearing of the party.
Appellant urged this honourable Court to resolve this issue in their favour.
On the issue two, the learned Senior Advocate submitted that the learned trial Judge failed to exercise his discretion judicially and judiciously which led to a miscarriage of justice against the Appellant and infringed on their constitutional right to fair hearing.
Counsel referred to pages 197-203 and page 212 -357 of the record vis a vis Order 5, Order 15 Rule 1 (2), Order 44 Rule 4, Order 45 Rule 14 and Order 1 Rule (3) and submitted that the law is settled that failure to take a procedural step is merely an irregularity which can be cured by Courts. He referred us to the case of UBA LTD & 2 ORS V. DIKE NWORA (SUPRA);
Counsel based that the paramount consideration in granting an application for extension of time to take a procedural step is the interest of justice. He submitted further that the Court below is a misdirection because in coming to that conclusion the Court below failed to consider that:-
i. The Respondent did not file a counter affidavit and was deemed in law to have conceded the contents of the supporting affidavit.
ii. It got judicial Notice of records by virtue of Section 74 (1) (m) of the Evidence Act, which showed the conditional appearance and preliminary objection had been filed and argued.
iii. There was ample material in the Courts records upon which the Court could have exercised its discretion.
He referred to EJIKEM V. IBOKWE (1997) 7 NNLR PF 592 P.514, P.592 P 597 PARAS B.
Counsel submitted further that the learned trial Judge gave undue weight to the fact that the Appellant did not explain the one month delay when there was no counter affidavit filed by the Respondent. It therefore drove the Appellant away from the temple of justice when there was no evidence that the Respondent would suffer any Prejudice.
Counsel submitted further that the learned trial Judge adhered himself to technicalities over substantial justice and closed his eyes to the statement of defence which disclosed a substantial defence and other processes that had been filed and were before the Court.
Counsel urged this Court to resolve this issue in their favour and allow the appeal.
In response to the Appellant brief, learned counsel for the Respondent argues their Preliminary objection first and he submitted that the Appellant is a non-juristic person duly unknown to law and the Respondent. That the name with which the purported Appellant was sued is The Shell Petroleum Development Company of Nigeria Limited. The same name with which Appellants Notice of Appeal was filed. Counsel submitted that the name is not a registered name and only a juristic personality can invoke the appellate predication of this Honourable Court by way of appeal. He referred to SLB CONSORTIUM LTD V. NNPC (2001) 9 NWLR (PT. 1252) 317 at 329 -33 Paras C-g, 355 A-B, 336 -337.
Counsel submitted further that the Appellant is required by law to seek leave of this Honourable Court and same must be granted before filing its Notice of Appeal. He referred this Court to Section 25 (3) of the Court of Appeal Act and Pages 367-384 of the Record.
Counsel submitted that the aforesaid requisite application was filed not served on them within five days of filing as required by Order 39 Rule 1 (1) heard and granted by the Court below when the motion filed by the Respondent to stay further proceeding had not been disposed off. He submitted finally that the order was not valid and therefore makes this appeal incompetent and pray this Court to strike it out.
On the main appeal, learned counsel submitted a sole issue for this Honourable Court determination which is:
Was the learned trial Judge right to have exercised his discretion to refuse the Appellants application for extension of time.
Counsel submitted by way of response to the issue of fair hearing raised by the Appellant that the Appellant right of fair hearing was not violated in any way by the lower Court and same was not raised and argued by the Appellant before the lower Court.
He referred to MRS. AGBOOLA V. UBA PLC & ORS (2011) 2 -3 SC. (PT. 11) 43 AT 86. He referred us to page 202 and juxtaposed it with page 359 of the records.
Counsel submitted that the Appellant failure to comply with the Rules of the Court below regulating the presentation of its defence within 42 days and the fact that the granting or refusing an application is at the discretion of the Court and same discretion was exercised judicially and judiciously by the lower Court in refusing the application for extension of time made by the Appellant.
Counsel submitted further that Rules are designed for the quick dispensation of justice and same must not be manipulated to cause delay as the Appellant did. He referred to Rule 1 (3), OLANIYAN V. OYEWOLE (2008) All FWLR (Pt.399) 503 at 530 -531.
Learned counsel finally submitted that the reason advanced by the Appellant was not cogent to warrant the grant of the application. Counsel urged this Court to resolve this issue in their favour and dismiss the appeal.
Appellant in their reply to the Respondent submissions urged this Court to discountenance the introduction and statement of facts enunciated by the Respondent. He referred the Court to pages 430 447 of the additional records.
On paragraph 1.02 and 1.06 of the Respondent brief, counsel referred us to page 427 of the additional records and urged the Court to discountenance them for being mistruth.
In response to the Respondent Notice of Preliminary Objection, counsel submitted that the omission of the word The from the name of the Appellant is a typographical error of counsel and should be treated as a mere misnomer. He returned to the case OGBORI VS. IBORI (2004) 7 NWLR (PT. 871 P. 192 AT P. 224; AJAYI V. AJIBOLA (2004) 16 NWLR (PT. 898) PG. 91 AT 188 -192 PARAS. D E.
On the issue that no leave was obtained before filing this appeal, counsel submitted that the Respondent misconceived it and same borne out by the records and made in bad faith. Counsel submitted that the Appellant sought for the leave and same was granted. He referred to pages 386, 472, and 430 447 of the additional records.
Counsel submitted that the day the application for leave was heard, learned counsel for the Respondent was in Court for another matter but chose to absent himself from the application for leave to appeal.
He referred to page 480 and 552 of the additional records. He urged this Court to discountenance the Respondent argument and submission raised in the Preliminary Objection.
In response to the pages 5-10, learned counsel urged this Court to discountenance the arguments that the arguments are misconceived as the Appellant did not raise any new issue that could have required leave of the Court.
He submitted further there was sufficient reason before the Court below for the exercise of its discretion in accordance with the law.
Counsel finally replied that the law now is that substantial justice should be made paramount against technical justice. He urged the Court to discountenance all the cases cited, the arguments and submissions of the Respondent and to allow this appeal.
CROSS-APPEAL
The learned counsel for the Cross-Appellant submitted a sole issue for this Honourable Court’s determination distilled from the single ground of appeal and which is:
Whether the learned trial Judge was right to have dismissed the motion for judgment in default of appearance and pleadings by the Defendant (Cross-Respondent).
The learned Silk in arguing this submitted that there was no basis for the lower Court to dismiss the Cross-Appellant application for default judgment. According to the learned counsel issues were not joined by the Cross-Respondent.
Counsel submitted that the Cross-Appellants claim was mixed and only one is for declaratory relief. Counsel submitted that the learned trial Judge misunderstood and misapplied the decision in OGOLO V. OGOLO (2006) ALL FWLR (PT.313) 1. He referred to EGUSUMBA V. OMUSURUIKE (2002) ALL FWLR (PT.128) 138 at 1408. He urged this Court to resolve this issue in their favour and allow the Cross-Appeal.
In response to the Cross-Appellant brief, learned counsel for the Cross-Respondent also submitted a lone issue for this Honourable Court’s determination and which is:
Whether the learned trial Judge was right to dismiss the motion for judgment in default of appearance and pleadings.
Learned counsel submitted that Cross-Appellants appeal is misconceived and that the learned trial Judge was right to refuse same. He referred this Court to pages 116, 156-184 and prayed this Court to dismiss this appeal.
Counsel submitted further that Order 20, Rule 1, 3, 5 and 9 are inapplicable because the reliefs sought by the Cross-Appellant are not based on debts, liquidated money demand, pecuniary damages or pecuniary losses within the meaning of the law and that the cross-appellant also sought a declaratory relief that they owned the steel pipes and other goods in dispute. Counsel submitted therefore that the declaratory relief sought cannot be granted without evidence. He referred to KWAJAFFA V. B. O. N. LTD (2004) 13 NWLR (PT.889) P. 146 at P. 172 PARAS D-E.
Learned Counsel urged the Court to uphold their argument and dismiss this appeal as same lacks merit.
When this appeal came up for hearing on the 4th day of April, 2018, Mr. Ukiri, learned counsel for the Respondent, informed the Court that there is a Preliminary Objection to the hearing of the appeal which has been argued at pages 4 and 5 of the Respondents Brief of Argument. The objection to the competence of the appeal is premised on the fact that:
The Notice of Appeal if filed by Shell Petroleum Development Company of Nigeria Limited” is incompetent because:-
(a) The Appellant is a non-juristic personality known to the Law and the Respondent.
(b) Leave to appeal is required but was not validly sought and granted before the notice of appeal was filed.
On the first sub-ground that the omission of the article The” from the name of the Appellant renders the Notice of Appeal incompetent, I must state that this is a mere misnomer and neither the Court nor any of the party was harmed or misled by the omission. The attention of the Court was drawn to the same error committed by the trial Court in its ruling of the 22nd day of February, 2011 at page 361 of the record of appeal where the same party was named without the article The, I do not see how this can vitiate the competency of the Notice of Appeal and the jurisdiction of this Court to hear and determine this appeal. For avoidance of doubt, I hold that this appeal is competent.
I agree with learned senior counsel for the Appellant that a party will not be penalised for the mistake of his counsel or of the Court registry. A party in such circumstance will be penalised only where the mistake is traceable to him. In the instant case, it is not shown that the Appellant personally prepared and filed the Notice of Appeal in question. See OGBURU V. IBORI [2004] 1 NWLR (PT.8711) 192 @ 224; AJADI V. AJIBOLA [2004] 16 NWLR (PT.898) 91 @ 188-192.
I have now discovered, from the case docket, that a Ruling by this Court, delivered on the 5th day of December, 2014, Coram: MOHAMMED LAWAL GARBA, JCA; EJEMBI EKO, JCA (as he then was); and THERESA N. ORJI ABADUA, where Hon. Justice M. L. Garba, JCA delivered the lead ruling had disposed of the first leg of the Respondents preliminary objection. I can now understand why learned counsel for the Respondent kept mum when the learned Senior Counsel told the Court that the matter had been settled by this Court by dismissing the Respondents preliminary objection.
Now, this Court on the 5th day of December, 2014 left the ground of objection on absence of leave to file Notice of Appeal for consideration at the hearing of the appeal (see page 2 of the Ruling).
The Senior Counsel for the Appellant submitted that a preliminary objection cannot be heard in bits. I do agree with her. At the stage this Court heard the motion for the amendment of the Appellants name, it would be premature to consider the issue whether or not the notice of appeal was properly/validly filed. It is at the state of hearing the appeal that an objection can properly be taken to its competence and the jurisdiction of this Court to entertain and determine the appeal. We are now at that stage. Reference was made, by learned senior counsel, to page 472 of the Additional Record of Appeal where the learned trial Judge expressed satisfaction as to the service of the motion to Order 39, Rule 5 of the Rivers State High Court (Civil Procedure) Rules. It is to this same Order 39, Rule 5 that the Respondent referred and on it, it relied in arguing the objection. The only problem I have with the argument of the learned counsel for the Respondent is the confused state of the arguments.
At one breath, it was alleged that the motion for leave to appeal was not served on the Respondent at all. On the other hand, it was alleged that the motion was not served at least 2 clear days between the service .. and the day named in the notice for hearing the motion (The quotes were supplied by the Respondent. See lines 6-8 of paragraph 3.02 on page 4 of the Respondents Brief). With this state of affairs, one is not certain as to what precisely the Respondent wants. Learned counsel for the Respondent made reference to his motion for setting aside, at the trial Court, the order granting the Appellant leave to appeal on the grounds of fraud and/or misrepresentation. To this motion the Appellant filed a counter affidavit that graphically demonstrated how learned counsel, was served. It was very revealing and worrisome how counsel would, because of his clients case, descend so low. There was no further affidavit deposed to in contradicting the damaging depositions in the counter affidavit and by the record before this Court, the reality of the case is that the Respondent was served. This is so because the depositions as contained in that counter affidavit remain unchallenged.
Having been established that the Respondent was served with the motion for leave to appeal, I hold that this preliminary objection lacks merit and it is hereby dismissed. I hold that the Notice of Appeal was validly filed and it is competent.
I would have gone straight to the treatment of the appeal, but the Respondent filed a Cross-appeal and in response thereto, the Appellant has filed Notice of Preliminary Objection stating that the Respondents suit before the lower Court is incompetent and consequently this Court lacks the jurisdiction to entertain its appeal. The objection is grounded on the following grounds:
i. The action was commenced by Writ of Summons filed on the 9th of December, 2009.
ii. Neither the Cross-Appellant nor its Legal Practitioner signed the Writ of Summons as required by Order 6, Rule 1, Rule 2 (3) of the High Court of Rivers State (Civil Procedure) Rules, 2010.
iii. By virtue of Sections 2 (1) and 24 of the Legal Practitioners Act, all Court processes are to be signed and issued in the course of the proceedings of the suit by the Legal Practitioner enrolled to practice law in Nigeria.
iv. The Cross-Appellants Writ of Summons being a Court process is incompetent as same was not signed by a Legal Practitioner enrolled to practice law in Nigeria.
v. The Writ of Summons being the originating process is incompetent and the Court lacks the requisite jurisdiction to hear and entertain the suit.
vi. Failure to commence the suit in accordance with the law has led to lack of jurisdiction.
When the case came up for hearing on the 24th day of April, 2018, Mrs. Essien, SAN, learned senior counsel for the Cross-Respondent, drew attention to the fact that there was no Reply Brief filed in response to this preliminary objection. She submitted that the Writ of Summons is incompetent by reasons of the facts stated here above, urging that the suit before the lower Court being a nullity be struck out.
It was submitted further that the steps taken so far before the lower Court and this Court being null and void, both the lower Court and this Court lack the jurisdiction to entertain this action. It is urged that the suit before the lower Court be struck out for lack of jurisdiction. Reliance is placed on ALAWAYE V. OGUNSANYA [2013] 5 NWLR (PT.1348) @ 610-613.
In response, Ukiri Esq., learned counsel for the Cross-Appellant, submitted that there was no such notice of preliminary objection by virtue of Order 10, Rule 1 of the Rule of this Court. It is submitted that the objection was not argued in the brief and as such, it is deemed abandoned. It is further argued that it does not challenge the Notice of Cross-Appeal but the Writ of Summons and that the Writ of Summons was properly signed.
The reasons given by learned counsel for the Cross-Appellant for not filing a Reply Brief in response to the preliminary objection are that:
(a) It was not argued in the Cross-Respondents Brief of Argument.
(b) It does not challenge the Notice of Cross-Appeal, but the Writ of Summons.
With respect, this Preliminary Objection is a challenge to the jurisdiction of this Court, and that of the trial Court to entertain the Cross-Appellants action as constituted. It does not matter how and when it was raised. It can be raised at any stage of the proceedings, even on appeal at the apex Court for the first time. It does not matter whether or not it is argued in the brief of argument. It can be raised orally without being reduced into writing. Learned counsel for the Cross-Appellant is clearly under a misconception not to have filed a Reply Brief. The implication of this is that the Cross-Appellant has accepted the objection as raised by the Cross-Respondent. Page 2 of the record to which our attention was drawn by the learned senior counsel indicates that the Writ was issued upon the application of E. B. Ukiri & Company, Legal Practitioners to the Claimant. This is an issue stated in a process of the lower Court and endorsed by ICHELLA CHUKWU Esq., an Assistant Chief Registrar (Litigation) in the Registry of the trial Court.
Failure to frontally respond to this preliminary objection gives it a credence and I have no choice but to uphold it.
There is a plethora of authorities that the processes of the Court must be signed either by the party concerned or by its Legal Practitioner duly recognised as such by the Legal Practitioners Act, (See Section 2 (1) and 24 thereof). See also the case of ALAWAYE V. OGUNSANMI (Supra).
In the light of the foregoing, it is clear beyond peradventure that the Writ of Summons as constituted is incompetent and null and void ab initio. All subsequent steps so far taken after its filing are also null and void. Both the trial Court and this Court lack the prerequisite jurisdiction to entertain the action.
The Suit of the Respondent/Cross-Appellant as constituted in the trial Court, having been found to be incompetent, is hereby struck out.
Having struck out the suit before the lower Court, it becomes unnecessary for me to dwell into any of the two appeals herein. Nothing can be placed on nothing. The two appeals are hereby struck out.
Cost assessed at N150,000.00 is hereby awarded against the Respondent and in favour of the Appellant.
FATIMA OMORO AKINBAMI, J.C.A.: I agree
PAUL OBI ELECHI, J.C.A.: I agree
Appearances:
Mrs. M.A. Essien, SAN with her, O.U. Ulasi, Esq., S.E. Ejneng, Esq., and O.U. Ogbuigwe, Esq.For Appellant(s)
E.B. Ukiri, Esq. with him, F.O. Okeri, Esq.For Respondent(s)
Appearances
Mrs. M.A. Essien, SAN with her, O.U. Ulasi, Esq., S.E. Ejneng, Esq., and O.U. Ogbuigwe, Esq.For Appellant
AND
E.B. Ukiri, Esq. with him, F.O. Okeri, Esq.For Respondent
