TOTAL (E & P) (NIG) LTD v. NWORGU
(2021)LCN/15645(CA)
In the Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Thursday, November 25, 2021
CA/PH/218/2014
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Muhammed Lawal Abubakar Justice of the Court of Appeal
Between
TOTAL (E & P) NIGERIA LIMITED APPELANT(S)
And
CHIEF DENNIS NWORGU RESPONDENT(S)
RATIO
CONDITION TO BE SATISFIED BEFORE A COURT CAN ASSUME JURISDICTION OVER ANY MATTER
It is trite law that before a Court can assume jurisdiction over any matter, the said matter must have been properly instituted through the process of law. See Porbeni vs. Pabod Financial (2001) FWLR (Pt. 63) 84, Madukolu v. Nkemdilim (1962) 1 All NLR NWLR 587. PER ELECHI, J.C.A.
THE POSITION OF THE LAW ON SIGNING OF A STATEMENT OF CLAIM
It was signed by Messrs casfile & Co. The crux of the issue now is the said statement of claim signed by a law firm. In law, the signing of a statement of claim is a sine quo non for its validity and such a process must be signed either by the party or his counsel in the name clearly enrolled on the roll of Legal Practitioners Act 1976, failing which it would be rendered irredeemable and incurably defective and thus incompetent beyond redemption and not even by any subsequent amendments could such invalid and void process be salvaged. See SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (Pt. 1252) 317 at 331-332, Nigerian Army vs. Samuel (2013) 14 NWLR (Pt. 1375) 466 at 483, Dickson Ogunseinde Virya Farms Ltd vs. Societe General Bank Ltd. (2018) LPELR-43710 (SC) 24 at 29, Olagbenro vs. Olayiwola (2014) 17 NWLR (Pt. 1436) 313 at 366. PER ELECHI, J.C.A.
WHETHER OR NOT AN INCOMPETENT ORIGINATING PROCESS IS LIABLE TO BE STRUCK OUT
In law, an incompetent originating process such as the one in question is such that an action or matter or cause founded on it is likewise incompetent and liable to be struck-out. See Mingi Services Ltd vs. Imaote (2003) FWLR (pt 143) 341 to 346.
Now, whether the above position of the law, would not amount to sacrificing substantial justice at the altar of technical justice, raises a serious concern but since without competence there can be no validity in any Court proceedings or judgment thereon. The admonition of the Apex Court in Dada vs. Dosunmu (2006) 18 NWLR (Pt. 1010) 1 is apt where the supreme Court per Niki Tobi JSC (of blessed memory) had on this issue of substantial justice according to law opined inter alia:
“The role of the Court is to apply the principles of substantial justice according to law. A Court of law will not be performing its role as an independent umpire if it bends backward to do justice to one of the parties, at the expense of the other party. Justice, that very expensive commodity in the judicial process should be evenly spread between the parties where the rule of the Court has clearly and unambiguously provided for a particular act or situation, the Court has a duty to enforce the act or situation and here the issue of doing substantial justice should not arise. The party who failed to comply with the rule has himself to blame.”
When an action or matter or course is found to be incompetent, that is the end of the matter, since one cannot put something on nothing and expect it to stand, for nullity upon nullity will still amount to nullity and nothing more. See Macfoy vs. UAC Ltd (1962) 1 AC 100 at 160, Babatope vs. Sadiku & Ors (2017) LPELR – 41966.
On the significance of a legal practitioner to sign the Respondent statement of claim, see Order 25 Rule 4(3) of the Rivers State High Court (Civil Procedure) Rule 1987 provides thus:
“Pleadings shall be signed by a legal practitioner or by the party if he sues or defends the action.” PER ELECHI,J.C.A.
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Rivers State presided over by Hon. Justice G.N. Akpughumum in Suit No. PHC/1085/98 and delivered on 29th October, 2013 in favour of the Claimant/Respondent.
The Appellant being dissatisfied with the said judgment appealed to this Court on a five grounds of appeal on the initial notice of appeal filed on the 3/12/2013. Later and on an amended notice of appeal was filed dated 16th January, 2017 on which this appeal is predicated on.
STATEMENT OF FACTS
The Appellant stated that on or about October 29, 1987, the Appellant contracted the Respondent, a registered Estate Surveyor and Valuer, to pay compensation on its behalf to the people of Ikuru town whose land was acquired by the Appellant.
The Respondent did not pay the compensation as at when due. He claimed that there was a dispute as to who among the Ikuru People was entitled to the compensation money and that the said dispute culminated in suit at the Rivers State High Court in BHC/19/1980 – Chief Dickson Ikuru & Ors vs. Sunday S. Nteoguija, the said suit was concluded in 1989.
Upon the continued failure of the Respondent to pay the compensation to the Ikuru people, the Appellant in 1992 (Five years after engaging the Respondent and three years after the conclusion of the aforementioned case), the Appellant reported the matter to the Nigeria Police (“the Police”) who initiated an investigation into the matter. The Respondent was subsequently charged to Magistrate Court, Elimgbu for the offence.
It was after the Respondent had been charged to Court for stealing by the police that he purportedly paid the said compensation to the Ikuru People on December 15, 1992. The Respondent contended that he did not pay the compensation money because of the agreement he had with the Appellant to keep the money until the determination of the above Ikuru’s suit.
On its part, the Appellant stated that it never at any time had an understanding with the Respondent to keep the compensation money until the determination of the said suit as alleged. In any event that the said Ikuru suit ended in 1989 but the Respondent did not execute the contract until sometime in 1992 after the Appellant has reported the matter to the police.
ISSUES FOR DETERMINATION
It is submitted on behalf of the Appellant that the issues that arise for determination in this appeal are as follows:-
1. Whether the trial Court was vested with jurisdiction when it heard and determined Suit No. PHC/1085/98 in favour of the Respondent based on an amended Statement of Claim which derived its root on an initial Statement of Claim which was signed by a law firm contrary to the applicable rules of Court that same should be signed by either a legal practitioner or the Claimant himself? (Covers ground 5 on the Amended Notice of Appeal).
2. Whether the Respondent’s failure to pay compensation to the people of Ikuru at the material time as directed by the Appellant is not material in determining Appellant’s liability for maliciously prosecuting the Respondent? (Covers ground 2 on the Amended Notice of Appeal).
3. Whether the Respondent discharged the burden of proof as regards his averment that meetings were held wherein it was agreed that he should hold on to the compensation money and not pay same over to the intended recipients pending the outcome of Suit No. BHC/19/80-Dickson Ikuru v. Sunday Nteogwuija? (Covers ground 1 on the Amended Notice of Appeal).
4. Whether there was a material contradiction in the Appellant’s pleading and evidence in relation to her counsel’s advice that a report be made to the Police for investigation and possible prosecution? (Covers ground 3 on the Amended Notice of Appeal).
5. Whether the award of the sum of N50,000,000.00 (Fifty Million Naira) as general damages against the Appellant is justifiable and reasonable (Covers ground 4 on the Amended Notice of Appeal).
ARGUMENTS AND SUBMISSIONS.
ISSUE ONE
WHETHER THE TRIAL COURT WAS VESTED WITH JURISDICTION WHEN IT HEARD AND DETERMINED SUIT NO. PHC/1085/98 IN FAVOUR OF THE RESPONDENT BASED ON AN AMENDED STATEMENT OF CLAIM WHICH HE DERIVED ITS ROOT ON AN INITIAL STATEMENT OF CLAIM WHICH WAS SIGNED BY A LAW FIRM CONTRARY TO THE APPLICABLE RULES OF COURT THAT SAME SHOULD BE SIGNED BY EITHER A LEGAL PRACTITIONER OR THE CLAIMANT HIMSELF (COVERS GROUND 5 ON THE AMENDED NOTICE OF APPEAL)
The Respondent’s Statement of Claim dated December 22, 1998 and filed on February 19, 1999 was signed by Messrs case file & Co. However, Order 25 Rule 4(3) of the Rivers State High Court (Civil Procedures) Rules 1987, the applicable rule at the material time, provides, thus:
“Pleading shall be signed by a legal practitioner or by the party if he sues or defends person.”
Clearly, there is no dispute that the Respondent’s Statement of Claim upon which he commenced the suit was neither signed by Counsel nor the Respondent himself who was the Claimant at the lower Court as required by the above provision of the applicable rules of Court. Thereafter, there was an amendment of the said Statement of Claim and the amended statement of claim was eventually signed by counsel.
It is contended on behalf of the Appellant that the Statement of Claim filed on February 19, 1989 and its subsequent amendment are incompetent, therefore, the hearing and determination of Suit NO.PHC/1085/98 was culminated in a judgment in favour of the Respondent based on the aforesaid incompetent Amended Statement of Claim is a nullity in law as the incompetent amended statement of claim diverted the trial Court of the requisite jurisdiction to hear and determine the suit. Learned Appellant counsel contends that non-signing of the said original Statement of Claim is such a fundamental vice which had incurable vitiated the Statement of claim in such a manner that it became incapable of sustaining any subsequent amendment foisted on it. See Order 25 Rule 4(3) of the Rivers State High Court. (Civil Procedure) Rules 1987.
It is further submitted that the clear and unambiguous words in a substantive or adjectival statute must be given their ordinary and literal meaning. See DURU v. FRN (2013) 6 NWLR (Pt 1351) 441. The Court is urged to hold that the word “SHALL” as used in Order 25 Rule 4(3) of the 1987 Rules connotes ‘MUST’ which therefore makes it mandatory for a writ of summons to be signed by a legal practitioner or the claimant where he sues in person. See Bala vs. Dikko (2013)4NWLR (Pt1343) 52.
Consequently, it is submitted that failure to sign the original Statement of Claim renders it fundamentally defective and thus incompetent and beyond remedy as it offends the Mandatory provision of Order 25 Rule 4(3) of the 1987 Rules.
It is further contended on behalf of the Appellant that the Respondent’s original statement of claim is caught by the recent decisions of this Honourable Court and the Supreme Court wherein it has been consistently held that the non-signing or improper signing of processes by legal practitioners in Nigeria both at the trial Court and before the appellate Courts renders such processes incompetent. See Okafor vs. Nweke (2007) 10 NWLR Pt. 1043, 521, Oketade vs. Adewunmi (2010) 8NWLR Pt. 1195, 63 at p 74, paras. B-H and p. 75, para A., SLB Consortium Ltd vs. N.N.P.C (2011) All FWLR Pt. 583, 1902 at p. 1916-1917 paras. B-A, Braithwaite vs. Skye Bank Plc (2013) All FWLR (Pt. 664) 39 and Ministry of Works and Transport Adamawa State vs. Yakubu (2013) 6NWLR (Pt. 1) 351, 481.
Even if Appellant counsel prays the Court not to visit the mistake of counsel on the Respondent, but that still can not avail. See FRN Plc vs. Maiwada (2013) 5 NWLR (Pt. 1348) 444.
Consequently, the amendment or the amended statement of claim upon which the claimant fought his case at the lower Court was without foundation as it is trite that you cannot put something on nothing and expect it to stand. See Macfoy vs. UAC (1961) BALLER, 1169. Based on the foregoing, he urged the Court to resolve issue 1 in favour of the Appellant by holding that the lower Court lacked jurisdiction to hear and determine SUIT NO. PHC/1085/98 based on an incompetent amended statement of claim. Therefore, the judgment emanating from the incompetent amended statement of claim should be struck out for lack of jurisdiction on the part of the lower Court.
The Respondent before adopting Appellants’ issues for determination stated the facts of the case that:
a. The Appellant engaged the professional service of the Respondent as a Chartered Estate Surveyor and Valuer sometime in 1987 to settle and pay compensation to landowners whose land the Appellant acquired for its own use.
b. In carrying out his professional duties, there was a dispute among the several landowners in the Ikuru Town over who the actual owner was and therefore entitled to receive said compensation in consideration of the land acquired.
c. The land was subject of a pending dispute in Rivers State High Court, Bori Division in BHC/19/90 between the contending parties. Pendency of this suit in Court was stalling or frustrating Appellant’s need for immediate possession of the land to build a helipad/communication mast.
d. To make for immediate acquisition by the Appellant of the land, the disputing parties, that is, parties to the Suit No. BHC/19/80, the Respondent, and the Appellant represented by its in-house solicitor one Mr. Michael Asiegbu held meetings and mutually agreed among themselves that the compensation money should be held by the Respondent in trust for whoever eventually becomes victorious in the said suit at the High Court.
e. The Defendant having released the compensation money being the consideration for the land acquired to the original land owners, that is, the people of Ikuru town through the Respondent, the property in the good, that is, the compensation money has passed to the landowners and the compensation money at that time, no longer belonged to the Appellant since it had taken possession of the land and used same for its purpose.
f. They also mutually resolved among themselves that at the end of the case, whoever was victorious, should notify the Respondent with a certified true copy of the judgment in the said suit so that the Respondent would pay him/them the compensation money he held in trust. On 6th November, 1989, The High Court in River State sitting in Bori delivered its judgment in BHC/19/80. On 10th December, 1992, the victorious parties in the suit wrote to the Respondent through their solicitor Metong B.R. Orombo, Esq., demanding payment of the compensation.
g. On 15th December, 1992, the Respondent paid the victorious party the compensation money he held in trust for them through said solicitor.
h. The Appellant made a criminal complaint to the police against the Respondent of stealing the said compensation money he was holding in trust and he (Respondent) was arrested, detained, dehumanized and arraigned in Court even before delivery of the judgment of the High Court on 6th of November, 1989 and even before he received the said solicitor’s letter on 10th December, 1992.
i. While the criminal charge was pending at the Chief Magistrate Court, Elimgbu against the Respondent, he (Respondent) paid said compensation money to the victorious party and informed the Appellant and yet Appellant continued to prosecute him on the said criminal charge instead of at least discounting the criminal charge at that stage.
j. The criminal charge against the Respondent lasted for well over six years before he was discharged and acquitted by the High Court on appeal.
k. The prosecution of the Respondent by the Appellant on the false criminal charge which commenced even before the compensation money became due and payable was malicious.
l. The Appellant engaged the services of a private legal practitioner – Eberechi Adele, Esq., who applied for and obtained the Fiat of the Honourable Attorney General of Rivers State with which Respondent was prosecuted until his acquitted by the High Court on appeal.
The Appellant filed a Notice of Appeal containing 5 grounds and formulated 5 issues for determination of this appeal.
The Respondent hereby adopts the said issues formulated for determination of the appeal.
ISSUE ONE
WHETHER THE TRIAL COURT WAS VESTED WITH JURISDICTION WHEN IT HEARD AND DETERMINED SUIT NO. PHC/1085/98 IN FAVOUR OF THE RESPONDENT BASED ON AN AMENDED STATEMENT OF CLAIM WHICH DERIVED ITS ROOT ON AN INITIAL STATEMENT OF CLAIM WHICH WAS SIGNED BY A LAW FIRM CONTRARY TO THE APPLICABLE RULES OF COURT THAT SAME SHOULD BE SIGNED BY EITHER A LEGAL PRACTITIONER OR THE CLAIMANT HIMSELF.
It is submitted that contrary to the submission of the Appellants counsel that the so-called non-signing of the said statement of claim as stipulated by Order 25 Rule 4(3) of the Rivers State High Court, Rules 1987 does not affect the jurisdiction of the Court below that heard and determined the suit. This is because the said statement of claim filed on 19th February, 1999 was not the originating process. The writ of summons issued earlier in this case on 7th July, 1998 and which was duly signed by Patrick Abohwo Esq., of counsel was the originating process. The writ of summons was the foundation of Suit No. PHC/1085/98.
Under the Rivers State High Court (Civil Procedure) Rules 1987, a writ of summons could only be issued by the plaintiff and served on the Defendant and subsequently, the Plaintiff would file his statement of claim in the suit. This was what transpired in this case. See Order 25 Rule 1 of said rules particularly the proviso thereto. In paragraphs 4.1.9 at page 8 of the Appellant’s Brief of Argument, the Appellant’s counsel concedes that “it was not mandatory for a writ to be filled contemporaneously with the statement of claim; the latter could be filed subsequently.” This being the case, it is further submitted that it is the writ of summons issued in Suit No. PHC1085/98 on 7th July, 1998 that was the originating process only and that does not include the statement of claim which the Appellant complains that was signed by a law firm.
The said Order 25 Rule 4(3) of Rules of Court was not breached by Respondent’s counsel. Assuming but not conceding that the rules were breached, it is submitted that it is a mere irregularly that does not touch on the jurisdiction of the Court or at all. In the instant case, pleadings are not the originating process but the writ of summons is.
By the provisions of Order 2 Rule 1(1) of the Rivers State High Court (Civil Procedure) Rules 1987, the effect of the non-signing by a legal practitioner is an irregularity capable of being cured. In the instant case, the statement of claim was subsequently amended and same duly signed by a legal practitioner. See Order 2 Rule 2 of the Rivers State High Court (Civil Procedure) Rules 1987.
It is submitted that a perusal of the writ of summons issued on 7th July, 1998 which undoubtedly is the originating process in the suit leading to this appeal, shows that one Patrick Abohwo, Esq., of counsel caused the writ of summons to issue and he signed his signature thereon. Furthermore, in the affidavit of verification of the endorsement on the writ of summons filed the same 7th July, 1998, the same Patrick Abohwo, Esq., of counsel as a deponent also signed his signature thereon as exactly as the signature he signed on the writ of summons. On the original statement of claim filed on 18th February, 1999, the same Patrick Abohwo, Esq., of counsel also signed his regular or usual signature the same way he earlier signed his signature on the writ of summons and the said affidavit of verification. In the writ of summons and the affidavit of verification, the said counsel boldly wrote his name “Patrick Abohwo” and signed his regular signature. But in the original statement of claim, he omitted to write his name but nevertheless appended his very signature just as the signature he had earlier signed to the said processes.
It is submitted that the omission to write his name on the original statement of claim does not and cannot be interpreted to mean that he did not sign same. It is an irrefutable fact that Patrick Abohwo, Esq., signed the original statement of claim himself. A look at the regular signature of Patrick Abohwo, Esq., on the writ of summons and the same signature on the affidavit of verification clearly shows that it is the same signature with the signature on the original statement of claim. It is submitted that the said two signatures on the writ of summons and the affidavit of verification respectively are necessary to explain or introduce a fact in issue or relevant fact. The said two signatures are also a fact which establishes the identity of person whose identity is relevant in this case.
The fundamental question is: whose identity is relevant to unveil the author of the signature in the original statement of claim for the determination of this appeal? It is submitted that it is the identity of the author or owner of the signature on the original statement of claim, that is, whether the signature on the said original statement of claim is the signature of Patrick Abohwo, Esq., who had earlier signed his signature on the two other processes. See Sections 7(a) and 7(c) of the Evidence Act 2011.
Furthermore learned counsel contended that the law enjoins this Court to compare the said three signatures as contained in the writ of summons, the affidavit of verification of the endorsement on the writ and the original statement of claim respectively to ascertain if they are one and the same signature of one person, that is Patrick Abohwo, Esq., the legal practitioner in question. See Section 101(1) of the Evidence Act 2011. When your Lordships look at the signature on the said three processes two of which processes contain the name of the maker, that is, Patrick Abohwo, Esq., it will be apparent that the signature on the original statement of claim was actually made by an identifiable legal practitioner in the person of Patrick Abohwo, Esq. See Adenle vs. Olude (2002) 102 LRCN 1988 at page 1988.
The Court is urged to hold that the original statement of claim was made and signed by Patrick Abohwo, Esq. of Counsel. Also that by comparing the three signatures on the said three processes, the Court will not be in any difficulty to hold that the original statement was not signed by a law firm as erroneously urged by the Appellant. This is more so when the original statement of claim is not the originating process. The omission to so state or write his personal name for the said process could be a mistake or blunder of counsel.
The Appellant submitted that Order 25 Rule 4(1) of the Akwa-Ibom State High Court (Civil Procedures) Rules 1989 which is in pari materia with Order 25 Rule 4(3) of the Rivers State High Court (Civil Procedure) Rules 1987, has been interpreted by this Court (Calabar Division) and held that the word “shall” in the said order is equivalent to “must”.
In response thereto, it is submitted that the instant case is distinguishable from the case cited. This is because in the instant case, the original statement of claim was subsequently amended and it contains the signature of the counsel who settled same. In the case cited by Appellants counsel, there was no amendment of the offending process and the decision in that case, does not state that the Court by that very fact, lacked jurisdiction to entertain the case or set aside the trial decision. It is therefore submitted that the first principle of law is that jurisdiction in any suit is determined by the nature of the claimant’s claim. See Anyanwoko vs. Chief Mrs. Okoye & Ors (2010) 182 LRCN 106 at 123, Clement vs. Anyanwu (1989) 3 NWLR (Pt. 107) 39 at 50.
It is submitted that it is too late in the day for the Appellant to complain that there is an issue in the original statement of claim when the process was not the originating process, when the statement of claim was duly amended and when the Appellant filed its statement of defence to the said original statement of claim and actively participated in the proceedings until judgment. See Duke vs. Akpabuyo Local Govt. Council (2006) 133 LRCN page 108 at 134 & 137.
From case laws, it is clear that the submission of Appellant’s counsel that the failure to properly sign the original statement of claim robbed the Court below of jurisdiction is misconceived. This is more so when the said process was duly amended.
Appellant’s counsel cited many case laws and contends in summary that failure of counsel to sign the original statement of claim cannot be cured by amendment and that such failure cannot be regarded as mistake or negligence of counsel or tardiness on the part of the counsel.
Learned counsel submitted on behalf of the Respondent that all the case laws cited by the Appellant’s counsel are not apt, that is, they are not on all fours with the instant case and therefore inapplicable. See Bala vs. Dikko (supra), Okafor vs. Nweke (supra), First Bank of Nig. vs. Maiwada (supra).
It is further submitted that in all the case laws relied upon by the Appellant’s counsel, it is pertinent to point out that the bone of contention were “Notices or Appeal” which are originating process the spinal cord or life wire of an appeal while the bone of contention in this case is the statement of claim which is not the originating process or life wire or spinal cord of this suit. The originating process in this case is the writ of summons the spinal cord or life wire of the suit. It is pertinent also to point out that after Notice of Appeal is issued, there is no other process that follows thereafter except Appellant’s brief of argument and after Appellant and Respondent exchanging their respective briefs and argument, then judgment. This scenario elucidates the point that a notice of appeal is an originating process. Thus failure to properly sign same is fatal. But not when it concerns statement of claim simpliciter which is not the originating process.
It is therefore submitted that Appellant’s counsel, is not on the right legal footing when he argued that the original statement of claim having not been properly signed is fundamentally defective and that no amendment can cure the defect. He appears to misconceive the original statement of claim to be an originating process. It is submitted that the amended statement of claim has its solid foundation on the original statement of claim since same can be amended in law. In the case of Nalsa & Team Associates vs. NNPC(1991) 8 NWLR part 212 page 652 at page 668 paragraphs A-C held that there is nothing wrong to file a motion so as to correct the error detected made in earlier process filed even where it is contended as in this case, that there is no competent process which invariably has robbed Court of jurisdiction to entertain the matter in the first place.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In Nalsa & Team Associates (supra), the Appellant filed a Notice of Appeal in exercise of its constitutional right of appeal under Sections 220,221 and 222 of the Constitution of Federal Republic of Nigeria 1979, Section 24 of the Court of Appeal Act and the Rules of the Court of Appeal. The said motion was filed in breach of the laws same having been filed out of time.
The Court is urged to resolve this issue in favour of the Respondent.
RESOLUTION OF ISSUES
The appeal will be considered and determined based on issue one formulated by the Appellant and adopted by the Respondent thus:
ISSUE ONE
WHETHER THE TRIAL COURT WAS VESTED WITH JURISDICTION WHEN IT HEARD AND DETERMINED SUIT NO. PHC/1085/98 IN FAVOUR OF THE RESPONDENT BASED ON AN AMENDED STATEMENT OF CLAIM WHICH DERIVED ITS ROOT ON AN INITIAL STATEMENT OF CLAIM WHICH WAS SIGNED BY A LAW FIRM CONTRARY TO THE APPLICABLE RULES OF COURT THAT SAME SHOULD BE SIGNED BY EITHER A LEGAL PRACTITIONER OR THE CLAIMANT HIMSELF (Covers ground 5 on the Amended Notice of Appeal).
It is trite law that before a Court can assume jurisdiction over any matter, the said matter must have been properly instituted through the process of law. See Porbeni vs. Pabod Financial (2001) FWLR (Pt. 63) 84, Madukolu v. Nkemdilim (1962) 1 All NLR NWLR 587.
In the instant case, the Respondent filed a Statement of Claim dated December 22, 1998 and filed February 19, 1999. It was signed by Messrs casfile & Co. The crux of the issue now is the said statement of claim signed by a law firm. In law, the signing of a statement of claim is a sine quo non for its validity and such a process must be signed either by the party or his counsel in the name clearly enrolled on the roll of Legal Practitioners Act 1976, failing which it would be rendered irredeemable and incurably defective and thus incompetent beyond redemption and not even by any subsequent amendments could such invalid and void process be salvaged. See SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (Pt. 1252) 317 at 331-332, Nigerian Army vs. Samuel (2013) 14 NWLR (Pt. 1375) 466 at 483, Dickson Ogunseinde Virya Farms Ltd vs. Societe General Bank Ltd. (2018) LPELR-43710 (SC) 24 at 29, Olagbenro vs. Olayiwola (2014) 17 NWLR (Pt. 1436) 313 at 366. It is clear to me and I so find that the statement of claim filed by the Respondent dated December 22, 1998 and filed on February 19, 1999 signed in Messrs Casfile & Co is invalid and thus incompetent. In law, an incompetent originating process such as the one in question is such that an action or matter or cause founded on it is likewise incompetent and liable to be struck-out. See Mingi Services Ltd vs. Imaote (2003) FWLR (pt 143) 341 to 346.
Now, whether the above position of the law, would not amount to sacrificing substantial justice at the altar of technical justice, raises a serious concern but since without competence there can be no validity in any Court proceedings or judgment thereon. The admonition of the Apex Court in Dada vs. Dosunmu (2006) 18 NWLR (Pt. 1010) 1 is apt where the supreme Court per Niki Tobi JSC (of blessed memory) had on this issue of substantial justice according to law opined inter alia:
“The role of the Court is to apply the principles of substantial justice according to law. A Court of law will not be performing its role as an independent umpire if it bends backward to do justice to one of the parties, at the expense of the other party. Justice, that very expensive commodity in the judicial process should be evenly spread between the parties where the rule of the Court has clearly and unambiguously provided for a particular act or situation, the Court has a duty to enforce the act or situation and here the issue of doing substantial justice should not arise. The party who failed to comply with the rule has himself to blame.”
When an action or matter or course is found to be incompetent, that is the end of the matter, since one cannot put something on nothing and expect it to stand, for nullity upon nullity will still amount to nullity and nothing more. See Macfoy vs. UAC Ltd (1962) 1 AC 100 at 160, Babatope vs. Sadiku & Ors (2017) LPELR – 41966.
On the significance of a legal practitioner to sign the Respondent statement of claim, see Order 25 Rule 4(3) of the Rivers State High Court (Civil Procedure) Rule 1987 provides thus:
“Pleadings shall be signed by a legal practitioner or by the party if he sues or defends the action.”
I do not agree with the submission of the Appellant’s counsel that the so-called non-signing of the said statement of claim as stipulated by Order 25 Rule 4(3) of the Rivers State High Court Rule 1987 does not affect the jurisdiction of the Court below that heard and determined the suit.
Appellant’s counsel argued that by the provisions of Order 2 Rule 1(1) of the Rivers State High Court (Civil Procedure) Rules 1987, the effect of the non-signing by a legal practitioner is an irregularity capable of being cured. In the instant case, the Statement of Claim was subsequently amended and same duly signed by a Legal practitioner. See Order 2 Rule 2 of the Rivers State High Court (Civil Procedure) Rule 1987.
From the peculiar circumstances of this case, I do not agree with the learned Respondent counsel that the provisions of Order 25 Rule 4(3) of the Rivers State (Civil Procedure) Rules 1987 that non-signing of the said Statement of Claim does not affect the jurisdiction of the Court. In fact, it does affect it. This is because it is not an irregularity but a matter of substantive law. The said statement of claim is also incompetent even if signed by an unknown person. The Supreme Court has taken a definite stand on this issue. The consequence of non-signing of a statement of claim was demonstrated in Arueze V Nwaukoni (2019) 5 NWLR (pt 1666) 469 at page 83. In that case, the Respondent filed a Preliminary Objection at the Supreme Court raising for the first time the issue of improper signing of the statement of claim used at the trial Court. In upholding the objection, the Supreme Court held:
“In the instant case, the amended statement of claim is a Court process which required the signature of a legal practitioner. It was signed by an unknown person, to that extent it is incompetent. The decision of the trial Court would have been a striking out of the said amended statement of claim since it failed to do so, I, by virtue of Order 8 Rule 12(2) of the Supreme Court Rules, do have the power to strike out the said statement of claim. Accordingly, the amended statement of claim is hereby struck out for being incompetent. Having so struck out, the amended statement of claim, the base upon which the appellants’ claim stood has been removed. This being so, all the proceedings and judgment founded on the amended statement of claim must collapse. Accordingly, they have collapsed like a park of cards and are accordingly struck out.” In the light of the forgoing, I hereby hold that the said amended statement of claim is defective and also incompetent because it was neither signed by the 1st Respondent nor his counsel.
The effect in law is that such a Court process is a nullity and invalid and therefore cannot confer jurisdiction on the Court to determine the suit. Such originating process is not only incompetent but null and void. Being a void process, it cannot be remedied by an amendment. It also renders invalid the Statement of Claim upon which the suit was heard and determined.
Consequently, the entire proceedings and the judgment predicated on such void process cannot also be sustained and is hereby set aside. See Osifeso & Ors vs. Bat Co. Ltd (2015) LPELR-41726 (CA), Okpe vs. Fan Milk Plc & Anor (2017) 2 NWLR (Pt. 1549) 282 and Adekunle Ajibode & Ors vs. Gbadamosi & Ors(2021) LPELR-53089) (SC).
Consequently, the Writ of Summons is hereby struck-out and both proceedings and the judgment delivered on the 29th October, 2013 are hereby set aside.
Appeal Allowed.
HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance, the judgment delivered by my learned brother, P.O. Elechi, JCA.
The record of appeal discloses that the initial Writ of Summons, being the originating process was signed by Messrs Casefile & Co.
It is the law that where the Rules of Court permits a Court process to be signed by a Legal Practitioner, such a Legal Practitioner must be a juristic person, i.e. a natural human being whose name must be on the Roll of Legal Practitioners kept in the Supreme Court. Therefore, a document signed in the name of the Law Firm by which the Legal Practitioner Practices, will be invalid, null and void. It is not a matter of procedure but that of substantive law. See Sections 2(1) and 24 of the Legal Practitioners Act. See also Okafor v Nweke(2007) 10 NWLR (Pt.1043) 521, SLB Consortium Ltd v NNPC (2011) All FWLR (Pt.583) 1902 and FBN v Maiwada (2013) 5 NWLR (Pt.1348) at 478.
In the instant case, the Originating Writ of Summons was signed in the name of the Law Firm. The effect in law, is that, such a Court process is a nullity and invalid and therefore cannot confer jurisdiction on the Court to determine the suit. Such originating process is not only incompetent but null and void. Being a void process, it cannot be remedied by an amendment. It also renders invalid the statement of claim upon which the matter was heard and determined. Consequently, the entire proceedings and the judgment predicated on such a void process cannot also be sustained. It must be set aside. See Osifeso & Ors v BATCO. Ltd (2015) LPELR-41726 (CA), Okpe v Fan Milk Plc & Anor (2017) 2 NWLR (Pt.1549) 282 and Adekunle Ajibode & Ors v Danda Gbadamosi & Ors (2021) LPELR-53089 (SC).
On that note, I agree with my learned brother that, on issue one (1) alone, this appeal should be and is hereby allowed. Accordingly, I order that the Writ of Summons be struck out. The proceedings of the Court below premised thereon including the judgment delivered on 29/10/2013 are hereby set aside.
MUHAMMED LAWAL ABUBAKAR, J.C.A.: I have gone through the draft judgment just delivered by my learned brother, the HON. JUSTICE PAUL OBI ELECHI, JCA and I entirely agreed with him.
The appeal has merit and I also allow it.
Appearances:
H.C. Chibor, Esq., with him, A.O. Aigba, Esq. For Appellant(s)
J.C. Ejiogu, Esq. For Respondent(s)