UBA PLC v. FADLALLAH
(2021)LCN/15692(CA)
In the Court of Appeal
(KANO JUDICIAL DIVISION)
On Monday, May 10, 2021
CA/KN/62/2015
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA APPELANT(S)
And
ALI FADLALLAH (Trading Under The Name And Style Of Ali Fadlallah & Sons) RESPONDENT(S)
RATIO
THE REQUIREMENT FOR THE VALIDITY OF A WRIT OF SUMMONS AND ANY OTHER COURT PROCESSES
Now, it is settled beyond peradventure that it is a requirement for validity of a writ of summons, statement of claim and any other Court process that it should be signed by either the claimant, where he sues in person, or by his legal practitioner in his name as contained in the Roll of Legal Practitioners in the Supreme Court, where he sues by one, and that where the writ of summons, statement of claim and any Court process is not so signed, it is null and void and cannot ignite the jurisdiction of the Court to hear and determine the case and it renders as nullities the proceeding conducted and judgment delivered thereon. This is the requirement of the provisions of Section 2(1) and 24 of the Legal Practitioners Act as interpreted by the Supreme Court in a plethora of cases including Okafor Vs Nweke (2007) 10 NWLR (Pt 1043) 521, Oketade Vs Adewunmi (2010) 8 NWLR (Pt 1195) 63, SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (Pt 1252) 317, Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444, Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt 1348) 570, Minister of Works and Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt 1351) 481, Okarika Vs Samuel (2013) 7 NWLR (Pt 1352) 19, Hamzat Vs Sanni (2015) 5 NWLR (Pt 1453) 486, R. A. Oliyide & Sons Ltd Vs Obafemi Awolowo University, Ile-Ife (2018) 8 NWLR (Pt 1622) 564 to mention a few. PER ABIRU, J.C.A.
DEFINITION OF THE TERM “SIGNATURE”
The law defines signature as a person’s name or mark, written by that person or at the person’s direction, it is also any name, mark or writing used with the intention of authenticating a document. See Oko Vs Ntaji (2014) LPELR 24248(CA), Michmerah International Ltd Vs Nigeria International Bank Ltd (2015) LPELR 25768(CA). In SLB Consortium Ltd Vs Nigeria National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 at pages 331-332, Onnonghen, JSC, (as he then was), commenting on what constitutes signing of Court process by a legal practitioner, said in the lead judgment, thus:
“… In signing the notice of appeal, Mr. Cole used his own name, that is to say the name in which he registered as a Legal practitioner. We hold that on any interpretation of the rules, that was a sufficient compliance with them, and we do not accept the submissions that the addition of the words ‘For A.J Cole & Co., would invalidate the signature if the signature in a business name was not permitted’. …The above decision clearly states that a process prepared and filed in a Court of law by a legal practitioner must be signed by the Legal Practitioner and that it is sufficient signature if the Legal Practitioner simply writes his own name over and above the name of his or her firm in which he carries out his practice. In the instant case, it would have been sufficient if Mr. Adewale Adesokan had simply written or stamped his name on top of Adewale Adesokan & Co., because Mr. Adewale Adesokan is a legal Practitioner registered to practice law in the Roll at the Supreme Court…” (underlining for emphasis). PER ABIRU, J.C.A.
THE POSITION OF THE LAW ON AMENDED PLEADINGS
It is not in contest that amended pleadings date back and take effect from the date of the original pleadings. See Jatau Vs Ahmed(2003) 4 NWLR (Pt. 811) 498 and Brittania-U Nigeria Ltd Vs Seplat Petroleum Development Company Ltd (2016) LPELR 40007(SC).This is however a legal fiction. A legal device invented for the purpose of ease of adjudication and it does not change the actual date of filing of the amended process, and does not pretend that nothing existed before the amended process was filed. Hence, the Courts have stated repeatedly that a statement of claim or defence which has been amended with leave of Court does not disappear into thin air and cease to exist and it is still part of the proceedings and can be properly looked at or referred to by the trial Court. See Salami Vs Oke (1987) 4 NWLR (Pt 63) 11, Agbaisi Vs Ebikorefe (1997) 4 NWLR (Pt 502) 630, Balonwu Vs Obi (2007) NWLR (Pt 1028) 488, Anambra State Environmental Sanitation Authority Vs Ekwenem (2009) 13 NWLR (Pt 1158) 410, Uzodinma Vs Izunaso (No.2) (2011) 17 NWLR (Pt 1275) 30. In Agbahomovo Vs Eduyegbe (1999) 3 NWLR (Pt 594) 170, the Supreme Court at 186-187 H-C explained the point thus:
“Although once pleadings are duly amended by an order of Court, what stood before the amendment is no longer material before the Court and no longer defines the issue to be tried before the Court, that however is as far as that proposition of the law goes. It does not lay down any principle that an original pleading which has been amended by the order of Court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out from the proceedings.”
Similarly, this Court in Attorney General, Edo State Vs Jessica Trading Co Ltd (1999) 5 NWLR (Pt 604) 500 at 513 said:
“However, because a pleading has been amended does not mean that it is expunged or struck out and the Court can rightly refer to it though it cannot consider it as the basis of the claim or defence in the action. Thus, pleading amended does not cease to be part of the record.”
The original pleadings will only cease to exist where it is withdrawn and is accordingly struck out – Yahaya Vs Chukwura (2002) 3 NWLR (Pt 753) 20 and Adebayo-Adegbola Vs Idowu (2013) LPELR 21448(CA), Mancha Vs Emukowate (2017) LPELR 43113(CA).Dovetailing from this position of the law is the principle that where a party seeks for and obtains leave of Court to amend his pleadings, but fails to file the amended process within the time allotted by the Court or by the Rules of Court or files an amended process different from the one in respect of which leave was granted, the amended process will be struck out and a trial Court is obligated to continue to adjudicate the matter on the original pleadings. See Aunam (Nigeria) Ltd Vs Leventis Motors Ltd (1990) 5 NWLR (Pt 151) 458, Oil Minerals Producing Areas Development Commission Vs Icer Nigeria Ltd (2001) 7 NWLR (Pt 712) 327, Yahaya Vs Chukwura(2002) 3 NWLR (Pt 753) 20, Union Bank of Nigeria Plc Vs Nwuche (2007) All FWLR (Pt 383) 179, Motoh Vs Motoh (2011) 16 NWLR (Pt 1274) 474. PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State delivered in Suit No. K/611/1999 by Honorable Justice Nuhu Yahaya Galadanchi on the 13th of February, 2014. The Respondent was the claimant before the lower Court and his claims were for:
i. A declaration that the Certificate of Occupancy No LKN/CON/RES/RC/81/111 covering all that piece of land situate at Dakata Quarters in the Waje District of Kano State is the property of the Respondent.
ii. An order of the Court directing the Appellant to deliver and return the said Certificate of Occupancy No. LKN/CON/RES/RC/81/111 in its custody to the Respondent.
iii. Damages for the detention of the said Certificate of Occupancy No. LKN/CON/RES/RC/81/111 since 1st of August, 1998.
iv. An injunction restraining the Appellant, its agents, servants or privies from selling, alienating, disposing of and/or tampering with the Respondent’s interest in the property covered by the Certificate of Occupancy No. LKN/CON/RES/RC/81/111 pending the determination of the suit.
The writ of summons was supported by a statement of claim dated the 20th of August, 1999. The Appellant responded by filing a statement of defence dated the 17th of December, 1999. The records of appeal shows that the Respondent amended his pleadings and filed an amended statement of claim, with the leave of the lower Court and without objection from the Appellant, dated the 16th of October, 2000. The records show that the Respondent further amended his pleadings and he, with the leave of the lower Court and without objection from the Appellant, filed a further amended statement of claim dated the 5th of July, 2002. The records shows that the Respondent again amended his pleadings and he filed a further amended statement of claim dated the 6th of November, 2006, with the leave of the lower Court and without objection from the Appellant.
The records of appeal shows that the further amended statement of claim dated the 6th of November, 2006 and the statement of defence of the Appellant filed on the 17th of December, 1999 were the extant pleadings at the time trial was conducted in the lower Court. The records shows that the parties called one witness each in proof of their respective cases and tendered exhibits and that the parties filed their respective final written addresses. The records shows that thereafter on the 16th of April, 2013, the Respondent filed an application seeking to further amend his statement of claim. The Appellant opposed the application and filed a counter-affidavit thereto. The lower Court took arguments on the application and granted same on the 10th of October, 2013 and consequently, the Respondent’s further amended statement of claim dated the 16th of April, 2013 was deemed proper. The parties adopted their respective final addresses and the lower Court delivered judgment in favour of the Respondent and granted some of the reliefs claimed.
The Appellant was dissatisfied with the judgment and it caused its Counsel to file a notice of appeal dated the 24th of April, 2014 and containing four grounds of appeal. The Appellant subsequently amended the notice of appeal with the leave of this Court and he filed an amended notice of appeal dated the 27th of May, 2019 on the 11th of June, 2019 and it also contained four grounds of appeal. In arguing the appeal before this Court, Counsel to the Appellant filed an amended brief of arguments dated the 27th of May, 2019 on the 10th of June, 2019. In response, the Respondent filed a Notice of Intention to Contend dated the 23rd of February, 2016 on the 26th of February, 2016 as well as a brief of argument dated the 5th of November, 2019 on the 29th of November, 2019. The Appellant filed a reply brief of arguments dated the 18th of December, 2019 on the 24th of December, 2019. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.
Counsel to the Appellants distilled four issues for determination in the appeal and these were:
i. Whether this suit was competent before the trial Court.
ii. Whether from the evidence placed before the trial Court, the claims of the Respondent could be sustained.
iii. Whether the judgment of the trial Court was not against the evidence placed before it.
iv. Whether or not the trial Judge rightly considered Exhibit D1.
On his part, Counsel to the Respondent distilled two issues for determination in the appeal and one issue for determination on the Notice of Intention to Contend. The two issues for determination formulated in the appeal were:
i. Whether the suit was incompetent ab initio.
ii. Whether from the state of the pleadings and evidence adduced, the lower Court was not right in granting the reliefs of the Respondent.
The sole issue for determination distilled on the Notice of Intention to Contend was:
Whether the Appellant’s statement of defence dated 7th December, 1999 is known to law?
Reading through the records of appeal, particularly the writ of summons, the statement of claim, the amended statement of claim and the three further amended statements of claim, the statement of defence, the notes of evidence, the final written addresses of the parties in the lower Court, the judgment of the lower Court and the notice of appeal, as well as the arguments in the respective briefs of arguments of the parties, this Court is of the view that the issues for determination formulated by Counsel to the Respondent both on the appeal and on the Notice of Intention to Contend adequately capture the matters arising in this appeal. This Court adopts the issues, but will make slight variations to them, and they will be resolved seriatim.
This Court considers it pertinent at this juncture to comment on the reply brief of arguments filed by Counsel to the Appellant. The reply brief of arguments spanned thirty pages and it was in response to the Respondent’s brief of arguments of twenty-five pages. Twenty-one of the thirty pages were spent on re-arguing the issues raised and argued in the Appellant’s brief of arguments and to which the Respondent canvassed contrary arguments. Nine pages were devoted to responding to the issue for determination formulated on the Notice of Intention to Contend. It is settled law that the function of a reply brief is to answer the arguments in a respondent’s brief which were not taken in the appellant’s brief and it should be limited to answering any new points arising from the respondent’s brief. Where a respondent’s brief merely responds to the points raised in the appellant’s brief and does not raise any new points, a reply brief is otiose as it is not a means for re-arguing the case of the appellant –Omnia (Nig) Ltd Vs Dyktrade Ltd (2007) 15 NWLR (Pt 1058) 576, Abdullahi Vs Military Administrator, Kaduna State (2009) 15 NWLR (Pt 1165) 417, Longe Vs First Bank of Nigeria Plc (2010) 6 NWLR (Pt 1189) 1, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221.
In National Revenue Mobilization Allocation and Fiscal Commission Vs Johnson (2019) 2 NWLR (Pt 1656) 247, the Supreme Court at page 269 B-D made the point thus:
“A reply brief is to deal with a new issue of law or argument raised in an objection in the respondent’s brief, which was not covered by the appellant’s brief of argument. A reply brief of argument is filed only in response to new argument of the respondent on law that has newly been raised by the respondent, but was not touched or covered by the appellant in the appellant’s brief. But, where there has been no such new issue or point of law, a reply brief of argument is most unnecessary and anyone filed in that respect is liable to be discountenanced or ignored by the Court. A reply brief is not to be a repair kit to put right any lacuna or correct any error in the appellant’s brief of argument.”
The additional case law authorities which were replete and quoted from in extensio in the reply brief should have been forwarded as additional authorities in support of the arguments in the Appellant’s brief and not used in re-arguing the case of the Appellant in the reply brief. This Court will ignore the twenty-one pages of the reply brief of the Appellant which was expended on re-arguing the issues raised and argued in the Appellant’s brief of arguments and to which the Respondent canvassed contrary arguments and will countenance only the nine pages that dealt with the issue raised on the Notice of Intention to Contend.
Issue One
Whether the suit, as filed and prosecuted before the lower Court, was competent?
In arguing the issue for determination, Counsel referred to the cases of Bank of Industry Ltd Vs Awojugbagbe Light Industies Ltd (2019) All FWLR (Pt 977) 36 and SLB Consortium Ltd Vs NNPC (2011) All FWLR (Pt 583) 1902 in asserting that the Supreme Court had laid down the proper procedure for signing Court processes and he listed the four steps as (i) signature of Counsel; (ii) name of counsel; (iii) who counsel represents; and (iv) name and address of firm. Counsel stated that the writ of summons taken out by Counsel to the Respondent to commence the action in the lower Court did not satisfy this four step procedure and was thus invalid and incompetent and that the lower Court thus erred in assuming jurisdiction to hear and determine the matter and that the action was incompetent ab initio. Counsel stated further that the further amended statement of claim, on the basis of which evidence was led in the lower Court, was signed in the name of a law firm, J.B. Majiyagbe & Co, and that this was contrary to the provisions of Sections 2(1) and 24 of the Legal Practitioners Act and was thus also incompetent and he referred to the case ofBraithwaite Vs Skye Bank Plc (2012) 12 SCNJ 121.
Counsel stated that, consequently, the evidence led by the Respondent before the lower Court could not stand as one cannot build something on nothing and he referred to the cases of Nwachukwu Vs State (2007) All FWLR (Pt 390) 1380 and Unity Bank Plc Vs Abiola (2009) All FWLR (Pt 452) 1086. Counsel stated that the fact that the further amended statement of claim dated the 6th of November, 2006 was fundamentally defective and incompetent, it could not be amended and that as such, the granting of the application of the Respondent to amend the said further amended statement of claim by another further amended statement of claim dated the 16th of April, 2013 and which sought to rectify the defect in the signing of the further amended statement of claim dated 6th of November, 2006 was an exercise in futility and he referred to the cases of Ministry of Works and Transport Adamawa State Vs Yakubu (2013) All FWLR (Pt 694) 23 and Ikoli Ventures Ltd Vs SPDC (Nig) Ltd (2010) All FWLR (Pt 520) 1332. Counsel urged the Court to resolve the issue for determination in favour of the Appellant.
In his response, Counsel to the Respondent stated that a holistic look at the writ of summons shows that it was signed by Counsel, Vincent I. Asika, and it stated on its face that it was issued by Vincent I. Asika Esq. of J.B. Majiyagbe & Co., whose address for service is 4, Human Rights Avenue, Kano. Counsel stated that the process contained the signature of Counsel who issued it, the name of the Counsel and the name and address of the law office and that it thus complied with the requirements laid down in SLB Consortium Ltd Vs NNPC (2011) All FWLR (Pt 583) 1902 and Williams Vs Adold Stamm International (Nig) Ltd (2017) All FWLR (Pt 879) 721. Counsel stated further, and in the alternative, that the extant rules of the High Court of Kano State, at the time the writ of summons was issued, required that it was the Registrar of Court that issued writs of summons and that as such it was the Registrar of Court, and not the Counsel, that was required to sign and issue the writ of summons and that thus any improper signing of such writ by Counsel was insignificant and he referred to the provisions of Order 5 Rule 1 of the Kano State High Court (Civil Procedure Rules) 1988 and the case of Shell Petroleum Development Company of Nigeria Ltd Vs Gbeneyei (2019) 13 NWLR (Pt 1689) 272. Counsel stated that, whichever way, the writ of summons issued to commence the action was competent.
Counsel stated that the statement claim filed to accompany the writ of summons and dated the 20th of August, 1999 was also competently signed and it met all the requirements laid down for signing of such processes in the cases of SLB Consortium Ltd Vs NNPC supra and Williams Vs Adold Stamm International (Nig) Ltd supra. Counsel conceded that the further amended statements of claim dated the 5th of July, 2002 and dated the 6th of November, 2006 both signed in the name of the law firm, J.B. Majiyagbe & Co, were incompetent not having been signed by a legal practitioner known to law. Counsel stated that since the original statement of claim dated the 20th of August, 1999 by which the action was commenced was valid, the invalidity of the further amended statements of claim did not render the suit void ab initio and that it thus stands to reason that all the proceedings conducted in the lower Court could not be wished away simply because the further amended processes were incompetent and he referred to the cases of Adegbola Vs Idowu (2014) All FWLR (Pt 747) 712, Ilukwe Vs Okeke (2017) All FWLR (Pt. 900) 537 and Aunam Nig Ltd Vs Leventis Motors Ltd (1990) 5 NWLR (Pt 151) 458.
Counsel stated that this was not a case in which the originating processes used in commencing the action were incompetent and that the lower Court had jurisdiction to entertain the action ab initio and that this jurisdiction of the lower Court to hear the matter was not affected by the anomalies in the further amended statements of claim. Counsel stated that the anomalies were cured and corrected in the further amended statement of claim filed on the 16th of April, 2013 and that it was on these bases that the lower Court granted the motion of the Respondent seeking the further amendment of the statement of claim and that the reasoning of the lower Court in the ruling granting the motion was in tandem with the statement of law made by the Supreme Court in the case Bank of Industry Ltd Vs Awojugbagbe Light Industries Ltd supra. Counsel stated that the failure of the further amended statements of claim dated the 5th of July, 2002 and dated the 6th of November, 2006 revived the original statement of claim dated 20th of August, 1999 and that since the evidence led by the Respondent could be sustain on the basis of the averments in that statement of claim, the proceedings cannot be said to amount to a nullity and he referred to the case of Aunam Nig Ltd Vs Leventis Motors Ltd supra.
Counsel stated that the argument of Counsel to the Appellant that the errors committed in the further amended statements of claim dated the 5th of July, 2002 and dated the 6th of November, 2006 was irredeemable or irreparable did not countenance the decision of the Supreme Court in Unity Bank Plc Vs Denclag Limited (2012) 3 SCNJ 335 which held that such errors could be corrected by an amendment. Counsel stated the facts of the cases relied upon by Counsel to the Appellant in making his assertions were different from those in this case and he urged the Court to uphold his submissions and resolve the issue for determination in favour of the Respondent.
Now, it is settled beyond peradventure that it is a requirement for validity of a writ of summons, statement of claim and any other Court process that it should be signed by either the claimant, where he sues in person, or by his legal practitioner in his name as contained in the Roll of Legal Practitioners in the Supreme Court, where he sues by one, and that where the writ of summons, statement of claim and any Court process is not so signed, it is null and void and cannot ignite the jurisdiction of the Court to hear and determine the case and it renders as nullities the proceeding conducted and judgment delivered thereon. This is the requirement of the provisions of Section 2(1) and 24 of the Legal Practitioners Act as interpreted by the Supreme Court in a plethora of cases including Okafor Vs Nweke (2007) 10 NWLR (Pt 1043) 521, Oketade Vs Adewunmi (2010) 8 NWLR (Pt 1195) 63, SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (Pt 1252) 317, Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444, Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt 1348) 570, Minister of Works and Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt 1351) 481, Okarika Vs Samuel (2013) 7 NWLR (Pt 1352) 19, Hamzat Vs Sanni (2015) 5 NWLR (Pt 1453) 486, R. A. Oliyide & Sons Ltd Vs Obafemi Awolowo University, Ile-Ife (2018) 8 NWLR (Pt 1622) 564 to mention a few.
The tenure of the case law authorities suggest that the Supreme Court has a threshold between what amounts to adequate compliance with the provisions of Section 2(1) and 24 of the Legal Practitioners Act on signing of Court processes and what amounts to perfect compliance with the provisions. The law defines signature as a person’s name or mark, written by that person or at the person’s direction, it is also any name, mark or writing used with the intention of authenticating a document. See Oko Vs Ntaji (2014) LPELR 24248(CA), Michmerah International Ltd Vs Nigeria International Bank Ltd (2015) LPELR 25768(CA). In SLB Consortium Ltd Vs Nigeria National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 at pages 331-332, Onnonghen, JSC, (as he then was), commenting on what constitutes signing of Court process by a legal practitioner, said in the lead judgment, thus:
“… In signing the notice of appeal, Mr. Cole used his own name, that is to say the name in which he registered as a Legal practitioner. We hold that on any interpretation of the rules, that was a sufficient compliance with them, and we do not accept the submissions that the addition of the words ‘For A.J Cole & Co., would invalidate the signature if the signature in a business name was not permitted’. …The above decision clearly states that a process prepared and filed in a Court of law by a legal practitioner must be signed by the Legal Practitioner and that it is sufficient signature if the Legal Practitioner simply writes his own name over and above the name of his or her firm in which he carries out his practice. In the instant case, it would have been sufficient if Mr. Adewale Adesokan had simply written or stamped his name on top of Adewale Adesokan & Co., because Mr. Adewale Adesokan is a legal Practitioner registered to practice law in the Roll at the Supreme Court…” (underlining for emphasis)
This statement was quoted with approval by the Supreme Court in Okpe Vs Fan Milk Plc (2016) LPELR 42562(SC), Williams Vs Adold/Stamm International (Nig) Ltd (2017) LPELR 41559(SC), Emeka Vs Chuba-Ikpeazu (2017) LPELR 41920(SC), Bank of Industry Ltd Vs Awojugbagbe Light Industries Ltd (2018) LPELR 43812(SC). Again, in Dankwambo Vs Abubakar (2016) 2 NWLR (Pt 1495) 157,Kekere-Ekun, JSC, said thus:
“I agree with learned counsel for the 1st respondent that there is nothing in Section 2(1) of the Legal Practitioners Act that prohibits the use of an abbreviation of one’s name or initials in signing documents and/or conducting proceedings in any Court of law in Nigeria. In my view, to construe Section 2(1) of the Legal Practitioners Act in the strict sense urged by learned senior counsel for the appellant would be inconsistent with the intendment of the provision, which is to protect the legal profession from impostors and charlatans. Such an interpretation would amount to enthroning technicalities at the expense of substance and would certainly lead to a miscarriage of justice as has occurred in the instant case. It cannot be the intendment of the statute to punish a legal practitioner who has genuinely been called to the Bar simply because he signs processes and conducts proceedings using an abbreviation of his name as it appears on the Roll.”
In other words, and on the one end, the writing of the name of the legal practitioner, either in full or with his initials, on the originating process, apart from and in addition to the name of his law firm, meets the requirement of signing of a Court process by the legal practitioner under the provisions of Sections 2(1) and 24 of the Legal Practitioners Act. This position was adumbrated by this Court in the cases Michmerah International Ltd Vs Nigeria International Bank Ltd supra, Allu Vs Gyunka (2015) LPELR 40478(CA), Oshoko Vs Akinrinade (2016) LPELR 41948(CA), Pacers Multi-Dynamics Ltd Vs Ecobank Plc (2018) LPELR 45008(CA), Tell Communications Ltd Vs Ngilari (2019) LPELR 46934(CA).
At the other end, Rhodes-Vivour, JSC, in his contributory judgment in the case of SLB Consortium Ltd Vs Nigeria National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 at 337-338, suggested the perfect manner of endorsing Court processes when signing, thus: first, the signature of Counsel, which may be any contraption, followed by name of Counsel clearly written, and then who counsel represents, followed by the name and address of the law firm. This suggestion was re-echoed by the Supreme Court in other cases such as Okpe Vs Fan Milk Plc (2016) LPELR 42562(SC), Emeka Vs Chuba-Ikpeazu (2017) LPELR 41920(SC), GTB Plc Vs Innoson Nigeria Ltd (2017) LPELR 42368(SC), Bank of Industry Ltd Vs Awojugbagbe Light Industries Ltd (2018) LPELR 43812(SC). There is nothing in these cases, however, that says that this suggested perfect manner of endorsement of Court processes is engraved in stone and that once it is not complied with in the exact manner and order, the signing of the Court process is invalid; none of the cases made such pronouncement.
Thus, once the manner of signing a Court process falls anywhere between the threshold and the suggested perfect manner of endorsement of signature, i.e between the two ends, the signing of the Court process is proper.
As stated earlier, the action in the lower Court was commenced by a writ of summons dated the 20th of August, 1999. An examination of the writ of summons shows that it carried on its face a handwritten signature, which was a name – Vincent I. Asika, and this was subsequently followed by an endorsement that “This writ was issued by Vincent I. Asika Esq. of J. B. Majiyagbe & Co whose address for service is 4, Human Rights Avenue Kano … Legal Practitioners for the said Plaintiff who resides in Kano.’ It is obvious that the signing of the writ of summons came within the threshold of the manner stipulated by the Supreme Court for signing of Court processes and it was thus competent. The writ of summons was accompanied by a statement of claim also dated the 20th of August, 1999 and an examination of same shows that it carried on its face a similar handwritten signature, a name – Vincent I. Asika, and this was immediately followed by an endorsement “J. B. Majiyagbe & Co., Plaintiff’s Solicitors, 4, Human Rights Avenue, Kano.” It is also without doubt that the signature and endorsement came within the threshold of the manners stipulated by the Supreme Court for signing of Court processes and it was thus competent. The two originating processes by which the action in the lower Court was commenced were properly endorsed and signed and were competent.
The Respondent subsequently amended and further amended the statement of the claim and he filed an amended statement of claim dated the 16th of October, 2000, further amended statements of claim dated the 5th of July, 2002 and another further amended statement of claim dated the 6th of November, 2006. The amended statement of claim and the two further amended statements of claim were endorsed and signed in the name of the law firm of J. B. Majiyagbe & Co and the name of the legal practitioner who signed the processes was not stated anywhere on the processes either handwritten or otherwise. They were not signed in line with the provisions of Section 2(1) and 24 of the Legal Practitioners Act, as interpreted by the Supreme Court, and they were thus incompetent. See Nnalimuo Vs Elodumuo (2018) 8 NWLR (Pt 1622) 546, Alikor Vs Ogwo (2019) 15 NWLR (Pt 1695) 331.
Apparently realizing the defect in the further amended statements of claim, Counsel to the Respondent filed a motion dated the 16th of April, 2013 seeking to further amend the statement of claim dated 6th of November, 2006. The records of appeal show that Counsel to the Appellant opposed the application on the ground that the defect in the further amended statement of claim was fundamental and irredeemable by an amendment. The lower Court overruled the objection and allowed the amendment and a further amended statement of claim filed on the 16th of April, 2013 was deemed proper by the lower Court. The further amended statement of claim was signed and endorsed in the name of Counsel thus – “AbdulHafees D. Khalid Esq, Plaintiff’s Solicitors, J. B. Majiyagbe & Co., 4 Human Rights Avenue, Kano”. Counsel to the Respondent has argued in this appeal that the lower Court was correct in allowing the amendment because the defect in the further amended statement of claim dated the 6th of November, 2006 was redeemable and repairable by an amendment and he referred to the case of Unity Bank Plc Vs Denclag Limited (2012) 3 SCNJ 335.Counsel to the Appellant maintained otherwise and he referred to the case of Ministry of Works and Transport Adamawa State Vs Yakubu (2013) All FWLR (Pt. 694) 23.
It is correct that in the case of Unity Bank Plc Vs Denclag Limited (2012) 3 SCNJ 335, the Supreme Court suggested that an error in signing a Court process in the name of a law firm was correctable by an amendment of the Court process to reflect the name of Counsel thereon. This suggestion was taken a step further by the Supreme Court in the case of Heritage Bank Limited Vs Benthworth Finance (Nigeria) Ltd (2018) 9 NWLR (Pt 1625) 420 where it stated that the signing of a statement of claim in the name law firm was an irregularity that could be waived by the other party or corrected by an amendment by the party. This was reiterated by the Supreme Court in Bakari Vs Ogundipe (2021) 5 NWLR (Pt 1768) 1. These positions, however, represent the minority opinion of the Supreme Court on the subject. The majority opinion of the Supreme Court, expressed in cases prior and subsequent to the above mentioned cases, is that an error in signing any Court process in the name of a law firm, and not in the name of a known legal practitioner, is fundamental and goes to the root of the Court process and renders it incompetent, null and void and it is not redeemable, repairable or correctable by an amendment of the process – see for example the cases of Nnalimuo Vs Elodumuo supra, Ogunseinde Vs Societe Generale Bank Ltd (2018) 9 NWLR (Pt 1624) 230, Onyekwuluje Vs Animashaun (2019) 4 NWLR (Pt 1662) 242, Arueze Vs Nwaukoni (2019) 5 NWLR (Pt 1666) 469, B.L. Lizard Shipping Co Ltd Vs M.V. “Western Star” (2019) 9 NWLR (Pt 1678) 489, Salami Vs Alhaji Mohammed Jodi Magaji Muse Family (2019) 13 NWLR (Pt 1689) 301, Alikor Vs Ogwo supra. In Ministry of Works and Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt 1351) 481 at 496, the Supreme Court made the point thus:
“My Lords, I would have ended this judgment here, but for the submission of the respondent counsel that the said originating process was amended and as such it does not form the basis upon which the case was tried and determined. The questions that easily come to mind are that can an incompetent originating process or processes be amended? No doubt, the learned counsel to the respondent pretends not to appreciate the fundamental nature of an originating process. That fatal effect of signing of an originating process by a law firm is that the entire suit was incompetent ab initio. It was dead at the point of filing. This highlight the painful realities that confront a litigant when counsel fails to sign processes as stipulated by law. The originating process, as in this case, is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment.”
In Yusuf Vs Mobil Oil (Nig) Plc (2020) 3 NWLR (Pt 1710) 1, the Supreme Court at pages 15C-F reiterated thus:
“In order to obviate ambiguity or to aver some more facts, a party may amend his pleadings before the end of hearing or judgment and sometimes on appeal. However, the process sought to be amended must be competent and valid before it can be amended. Where the process is fundamentally defective ab initio, it is incompetent and does not exist at all in law, and cannot be amended. In this case, the appellant’s 4th amended statement of claim is void ab initio. Therefore, it cannot be cured by an amendment.”
Following the position of the law as adumbrated in the majority opinion of the Supreme Court, it is the view of this Court that the lower Court had no vires to grant the application of the Respondent seeking to amend the further amended statement of claim dated the 6th of November, 2006 as there was nothing to amend. The further amended statement of claim of the Respondent dated the 16th of April, 2013 was thus also incompetent. A defect in the statement of claim results not in the striking out of the suit for being a nullity, rather it is only the offensive statement of claim, as a process that is struck out. See Bakari Vs Ogundipe (2021) 5 NWLR (Pt 1768) 1.The amended statement of claim dated the 16th of October, 2000, the further amended statement of claim dated the 5th of July, 2002, the further amended statement of claim dated the 6th of November, 2006 and the further amended statement of claim of the Respondent dated the 16th of April, 2013 are thus all hereby struck out.
Now, as noted earlier, the action in the lower Court was commenced by a writ of summons and statement of claim both dated the 20th of August, 1999 and this Court had found that both processes were properly signed and endorsed and were competent. It was this statement of claim that was amended, further amended and further amended. The question that arises is – with the striking out of the amended statement of claim and the three further amended statements of claim, what was state of the action of the Respondent before the lower Court?
It is not in contest that amended pleadings date back and take effect from the date of the original pleadings. See Jatau Vs Ahmed(2003) 4 NWLR (Pt. 811) 498 and Brittania-U Nigeria Ltd Vs Seplat Petroleum Development Company Ltd (2016) LPELR 40007(SC).This is however a legal fiction. A legal device invented for the purpose of ease of adjudication and it does not change the actual date of filing of the amended process, and does not pretend that nothing existed before the amended process was filed. Hence, the Courts have stated repeatedly that a statement of claim or defence which has been amended with leave of Court does not disappear into thin air and cease to exist and it is still part of the proceedings and can be properly looked at or referred to by the trial Court. See Salami Vs Oke (1987) 4 NWLR (Pt 63) 11, Agbaisi Vs Ebikorefe (1997) 4 NWLR (Pt 502) 630, Balonwu Vs Obi (2007) NWLR (Pt 1028) 488, Anambra State Environmental Sanitation Authority Vs Ekwenem (2009) 13 NWLR (Pt 1158) 410, Uzodinma Vs Izunaso (No.2) (2011) 17 NWLR (Pt 1275) 30. In Agbahomovo Vs Eduyegbe (1999) 3 NWLR (Pt 594) 170, the Supreme Court at 186-187 H-C explained the point thus:
“Although once pleadings are duly amended by an order of Court, what stood before the amendment is no longer material before the Court and no longer defines the issue to be tried before the Court, that however is as far as that proposition of the law goes. It does not lay down any principle that an original pleading which has been amended by the order of Court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out from the proceedings.”
Similarly, this Court in Attorney General, Edo State Vs Jessica Trading Co Ltd (1999) 5 NWLR (Pt 604) 500 at 513 said:
“However, because a pleading has been amended does not mean that it is expunged or struck out and the Court can rightly refer to it though it cannot consider it as the basis of the claim or defence in the action. Thus, pleading amended does not cease to be part of the record.”
The original pleadings will only cease to exist where it is withdrawn and is accordingly struck out – Yahaya Vs Chukwura (2002) 3 NWLR (Pt 753) 20 and Adebayo-Adegbola Vs Idowu (2013) LPELR 21448(CA), Mancha Vs Emukowate (2017) LPELR 43113(CA).Dovetailing from this position of the law is the principle that where a party seeks for and obtains leave of Court to amend his pleadings, but fails to file the amended process within the time allotted by the Court or by the Rules of Court or files an amended process different from the one in respect of which leave was granted, the amended process will be struck out and a trial Court is obligated to continue to adjudicate the matter on the original pleadings. See Aunam (Nigeria) Ltd Vs Leventis Motors Ltd (1990) 5 NWLR (Pt 151) 458, Oil Minerals Producing Areas Development Commission Vs Icer Nigeria Ltd (2001) 7 NWLR (Pt 712) 327, Yahaya Vs Chukwura(2002) 3 NWLR (Pt 753) 20, Union Bank of Nigeria Plc Vs Nwuche (2007) All FWLR (Pt 383) 179, Motoh Vs Motoh (2011) 16 NWLR (Pt 1274) 474. In the instant case, the jurisdiction of the lower Court to hear and determine the matter was ignited by the original statement of claim dated the 20th of August, 1999, which was subsequently superseded by the amended statement of claim and the three further amended statements of claim. With the failure of the amended statement of claim and the three further amended statements of claim, the natural course of events is that matters return to as they were before the amendments; back to the original statement of claim, which had not been withdrawn and/or struck out and still formed part of records of the lower Court. See Mancha Vs Emukowatesupra, Ilukwe Vs Okeke (2017) All FWLR (Pt 900) 537. Therefore, the failure of the amended statement of claim and the three further amended statements of claim revived the original statement of claim dated the 20th of August, 1999 and it becomes the extant pleadings before the lower Court.
This leads to the next question – whether the original statement of claim supports and can sustain the evidence led by the Respondent in support of his claims? As was stated earlier, the prevailing statement of claim at the time the Respondent led evidence in proof of his case was the further amended statement of claim dated the 6th of November, 2006 and the trial was conducted on the strength of the averments contained therein. A comparison of the averments contained in original statement of claim with the averments in the further amended statement of claim dated the 6th of November, 2006 show that they are practically and materially the same. The material averments in the further amended statement of claim were a word for word and line by line replication of the averments in the original statement of claim. The further amended statement of claim merely jettisoned some of the averments in the original statement of claim and consisted of twenty paragraphs as against the original statement of claim which contained twenty-three paragraphs. The evidence led by the Respondent could very well have been led on the strength of the averments in the original statement of claim. The averments in the original statement of claim clearly support and sustain the evidence led by the Respondent in support of his claims.
The submission of Counsel to the Appellant that since the extant pleadings of the Respondent at the time of trial was the further amended statement of claim dated the 6th of November, 2006 and the said further amended statement of claim was incompetent, the evidence led by the Respondent must necessarily be struck out as it amounted to building something on nothing, and the authorities relied on by Counsel, cannot fly in view of the peculiar facts of this case. It is settled law that each case must be determined on its particular or peculiar facts and circumstances. See CSS Bookshop Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) All FWLR (Pt 319) 819, The Administrators/Executors of the Estate of Sani Abacha (Deceased) Vs Eke-Spiff (2009) LPELR 3152(SC), Skye Bank Plc Vs Akinpelu (2010) 9 NWLR (Pt 1198) 179. Thus, it is settled in our jurisprudence that legal principles established in decided authorities are not to be applied across board and in all matters without regard for the peculiar facts and circumstances of a particular case. See Emeka Vs Okadigbo (2012) 18 NWLR (Pt 1331) 55 at 96, Marine Management Association Inc & Anor Vs National Maritime Consultancy Ltd (2012) 3 NWLR (Pt 1333) 506 at 538A. In the case of All Progressives Grand Alliance Vs Oye (2019) 2 NWLR (Pt 1657) 472, the Supreme Court made the point at page 570E-F thus:
‘Before a party can rely on the doctrine of stare decisis the peculiarity of the case in which it is raised has to tally with the circumstances that prevailed in the earlier case. Each case stands on its own and an earlier judicial authority is only of use where the facts are apposite or similar to the case at hand and not an authority to be applied in the air to each and every case that seems to bear a semblance of similarities.’
This Court finds that the action before the lower Court was competent and that the evidence led by the Respondent in support of his claims and the proceedings conducted in the lower Court were not nullities. The first issue for determination is resolved in favour of the Respondent.
Before proceeding to the second issue for determination on the appeal, this Court considers it wise to consider, at this point, the issue formulated for determination on the Respondent’s Notice of Intention to contend because it is related to the first issue for determination in the appeal. The issue is – whether the Appellant’s statement of defence filed before the lower Court was known to law.
In arguing the issue, Counsel to the Respondent noted that the statement of defence filed by the Counsel to the Appellant in the lower Court was endorsed and signed in the name of a law firm, M. A. Bello & Co., without the name of an identifiable legal practitioner shown thereon. Counsel stated that it was settled law that a Court process endorsed and signed in such a manner offends the provisions of Section 2(1) and 24 of the Legal Practitioners Act and is incompetent, null and void and he referred to several case law authorities including Okafor Vs Nweke (2007) 10 NWLR (Pt 1043) 521, Williams Vs Tinubu (2014) All FWLR (Pt 755) 200 and Oduwole Vs David-West (2010) 10 NWLR (Pt 1203) 598. Counsel stated that in the light of the incompetence of the statement of defence, all the evidence led by the Appellant in response to the claims of the Respondent went to no issue and cannot be countenanced and that the case of the Respondent should be treated as undefended and unchallenged and requiring minimal evidence to sustain.
In his response, Counsel to the Appellant stated that the contention of the Counsel to the Respondent was anachronistic and no longer represented the law and that except for originating processes, the Courts no longer discountenance processes that are signed in the name of a law firm, unless the other party objects to such irregularity at the earliest opportunity and he referred to and quoted extensively from the cases of Heritage Bank Ltd Vs Bentworth Finance (Nigeria) Ltd (2018) 9 NWLR (Pt 1625) 420, Nabobo Vs Musa(2018) LPELR 44808(CA). Counsel stated that since the Respondent did not object to the statement of defence in the lower Court and took several steps after the filing and service of the statement of defence, including participating in the trial conducted thereon, it was too late for the Respondent to challenge the competence of the statement of defence in this appeal. Counsel urged the Court to discountenance the challenge of the Counsel to the Respondent and to hold that the statement of defence was valid. It was not in contest that the statement of defence filed by the Appellant before the lower Court and dated the 7th of December, 1999 was signed and endorsed in the name of a law firm, M. A. Bello & Co. It also was not in contest that the manner of signing and endorsement offends the provisions of Section 2(1) and 24 of the Legal Practitioners Act. The contention is – what is the effect of such non-compliance with the provisions of Section 2(1) and 24 of the Legal Practitioners Act. Counsel to the Appellant contended that since the process involved is not the writ of summons, an originating process, the non-compliance was an irregularity which must be objected to at the earliest opportunity by the other party, otherwise the other party will be deemed to have waived it and he relied on the decision of the Supreme Court in the case of Heritage Bank Ltd Vs Bentworth Finance (Nigeria) Ltd supra for this proposition. This was reiterated in the case of Bakari Vs Ogundipe (2021) 5 NWLR (Pt 1768) 1.
As stated earlier, the decisions in the Heritage Bank Ltd Vs Bentworth Finance (Nigeria) Ltd and Bakari Vs Ogundipe do not represent the prevalent position of the law on the subject. Firstly, the decisions which were given by five-man panels of the Supreme Court went against the decision of the seven-man panel of the Supreme Court in First Bank of Nigeria Plc Vs Maiwada supra which held unequivocally that any Court process signed in the business name of a firm is incurably defective ab initio. It is elementary that the decision of the seven-man panel of the Supreme Court is superior to the decision of a five-man panel of the Court –Bogoro Local Government Council Vs Kyauta (2017) LPELR 43296(CA), Federal Republic of Nigeria Vs Achida (2018) LPELR 46065(CA). And a latter decision of five-man panel of the Supreme Court cannot override an earlier decision of a seven-man panel of the Court. See Gadi Vs Made (2010) 7 NWLR (Pt 1193) 325, Zakirai Vs Muhammad (2015) LPELR 40387(CA), Obasanjo Farms (Nig) Ltd Vs Muhammad (2016) LPELR 40199(CA), Social Democratic Party Vs Biem (2019) LPELR 46871(CA).
Secondly, the general position taken by the Supreme Court on this subject is that the requirement of endorsing and signing a Court process in the name of known legal practitioner, and not in the name of a law firm, is a requirement of substantive law, and not of procedural law, and thus it cannot be waived and it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by such signing of the Court process and it is an issue that can be raised even at the Supreme Court for the first time. See SLB Consortium Ltd Vs NNPC supra, Braithwaite Vs Skye Bank Plc supra, First Bank of Nigeria Plc Vs Maiwada & Ors supra, Alawiye Vs Ogunsanya supra, Minister of Works and Transport, Adamawa State Vs Yakubu supra, Onyekwuluje Vs Animashaun supra. It is also irrelevant that the process involved is not the writ of summons, but a statement of claim or a statement of defence. See Ogunseinde Vs Societe Generale Bank Ltd supra, Arueze Vs Nwaukoni supra, Yusuf Vs Mobil Oil (Nig) Plc supra. In Salami Vs Alhaji Mohammed Jodi Magaji Muse Family supra, M. D. Muhammad, JSC, commented at page 323D-F thus:
“I am in complete agreement with learned respondent’s counsel that appellant’s proposed amended statement of defence is a worthless process same having been signed by the firm of Kayode Olatoke & Co., instead of a legal practitioner as required by Sections 2(1) and 24 of the Legal Practitioners Act. The effect of this is that there is no valid pleading on record to sustain appellant’s case at the trial Court or his further agitation at the appellate level.”
In his contribution, Aka’ahs, JSC, went further at page 324E-H that:
“…Learned counsel argued that the only pleadings of the appellant before the trial Court upon which the evidence of the appellant is premised is the document tagged ‘Proposed Amended Statement of Defence’ which was never filed and secondly, the ‘Proposed Amended Statement of Defence’ of the defendant was not signed by a Legal Practitioner as required by Sections 2(1) and 24 of the Legal Practitioners Act by Sections 2(1) and 24 of the Legal Practitioners Act but signed in the name of PP: Kayode Olatoke & Co., who is not a legal practitioner. The preliminary objection is unanswerable. Learned counsel argued rather feebly that the respondent had ample opportunity to raise the issue about non-existence of defence of the appellant at the trial and since he did not do so either at the trial Court or in the Court below, it is too late to raise the issue at the Supreme Court.
This is an originating process that goes to the jurisdiction of the Court. It can therefore be raised at anytime even for the first time in the Supreme Court … The case of Okafor v Nweke … and other cases emphasise the effect of any originating process which is signed in the name other than that of a legal practitioner as null and void. Any evidence predicated on the null process would not be of any evidential value since it will not be based on nothing…”
The statement of defence filed by the Appellant was thus incompetent and defective ab initio and since it was the original and only statement of defence filed by the Appellant, the entire evidence led on it by the Appellant in its defence to the claims of the Respondent was baseless and must be discountenanced and it is hereby expunged from the records. The issue formulated on the Notice of Intention to Contend is thus resolved in favour of the Respondent.
Issue Two
Whether from the state of the pleadings and evidence adduced, the lower Court was right in granting the claims of the Respondent.
The case of the Respondent on the pleadings was that he is a dealer in textile and other goods and that he carried on business under the name and style of Ali Fadlallah & Sons, a registered business name, and that he is the registered owner of the all that piece of land situate at Waje District of the Municipal Administrative Area of Kano State covered by a Certificate of Occupancy No LKN/CON/RES/RC/81/111. It was its case that sometimes in March 1998, he entered into negotiations with a company called Messrs A. H. Suleiman & Sons Ltd for the sale of the said land and in the course he handed the original of his Certificate of Occupancy to Messrs A. H. Suleiman & Sons Ltd for the purpose of verification of the authenticity of his ownership of the land, and for no other purpose. It was his case that the negotiations for the sale of the land eventually broke down as the parties could not agree on the main terms of the sale and he demanded for the return of the original of his Certificate of Occupancy.
It was the case of the Respondent that, unknown to him and without his consent, the said Messrs A. H. Suleiman & Sons Ltd had entered into a loan arrangement with the Appellant and had deposited the original of his Certificate of Occupancy over the parcel the land as security for the loan. It was his case that he continued to demand for the return of the original of his Certificate of Occupancy and that when Messrs A. H. Suleiman & Sons Ltd were not forthcoming with same, he instructed a firm of Solicitors to commence an action against it for conversion and detention. It was his case that it was in the course of instituting the legal action that it was discovered, upon a routine investigation at the Lands Registry, that Messrs A. H. Suleiman & Sons Ltd was under receivership and that the Appellant was contemplating alienating the parcel of land covered by his Certificate of Occupancy and deposited with it.
It was the case of the Respondent that he did not borrow any money from the Appellant to warrant the Appellant holding and wanting to sell his parcel of land and that he caused his Counsel to file a caveat at the Lands Registry to warn that the land did not belong to Messrs A. H. Suleiman & Sons Ltd and as such could not be disposed off by the Appellant. It was its case that he thereafter engaged the Appellant, informed it of the position of the property and made several demands for the return of the original of his Certificate of Occupancy and that when the Appellant was not forthcoming with the document, he caused his Counsel to make a formal demand on the Appellant. It was his case that the Counsel to the Appellant responded by a letter threatening to sell and dispose of the land in satisfaction of the debt owed the Appellant by Messrs A. H. Suleiman & Sons Ltd and that he, by reason of the failure of the Appellant to return the original of his Certificate of Occupancy, lost out on a loan of N20 Million he was processing with his bankers which he wanted to secure with the land.
The Respondent called one witness and tendered three exhibits in proof of his case. This Court had found that the statement of defence filed by the Appellant was incompetent ab initio and was null and void and that the evidence led thereon was baseless and had expunged same. This meant in effect that the averments on the statement of claim of the Respondent were not denied, contested or challenged and the necessary consequence of this is that they were admitted by the Appellant. See Egesimba Vs Onuzuruike (2002) 15 NWLR (Pt 791) 466, Okoebor Vs Police Council (2003) 12 NWLR (Pt. 834) 444, Consolidated Resources Ltd Vs Abofar Ventures (Nig) Ltd (2007) 6 NWLR (Pt 1030) 221. Similarly, the failure of the evidence led by the Appellant meant that it is presumed to have admitted the case made against it at trial by the Respondent. See Ifeta Vs Shell Petroleum Development Corporation of Nigeria Ltd(2006) 8 NWLR (Pt 983) 585d, Okolie Vs Marinho (2006) 15 NWLR (Pt 1002) 316, Central Bank of Nigeria Vs Okojie (2015) LPELR 24740(SC).
It is correct that failure of a defendant to lead evidence on his pleading does not translate to automatic victory for a claimant. This is because a claimant must succeed on the strength of his case and not rely on the weakness of the defence and the absence of a statement of defence or evidence led by the defendant does not exonerate the responsibility on a claim to prove his claim. See Harka Air Services Ltd Vs Keazor (2006) 1 NWLR (Pt 960) 160 and Ogunyade Vs Osunkeye (2007) 15 NWLR (Pt 1057) 218.
However, the law is that in such circumstances, the onus of proof on a claimant will be discharged on minimal evidence as there is no evidence to put on the other side of the imaginary scale. See Nwabuoku Vs Ottih (1961) 2 SCNLR 232, Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt 109) 352, Adeleke Vs Iyanda (2001) 13 NWLR (Pt 729) 1, Adewuyi Vs Odukwe (2005) 14 NWLR (Pt 945) 473.
The lower Court found in the judgment that the evidence given by the sole witness of the Respondent, including the three exhibits tendered through him, was not challenged, contradicted or controverted during cross-examination and that it was credible, cogent and sufficient to sustain his claims.
In arguing this issue for determination, Counsel to the Appellant referred to the case of Ojiogu Vs Ojiogu (2010) 3 SCNJ (Pt. 2) 418 in asserting that parties are bound by their pleadings and that evidence given at variance with pleading goes to no issue and to the case of Okolo Vs Dakolo (2006) FWLR (Pt 336) 201 in reiterating that oral evidence must be consistent with the pleadings and that parties do not have the freedom to move out of the pleadings in search of a better case. Counsel referred to the averment in the pleadings that the Respondent is a dealer in textile and other goods and that he carried on business under the name and style of Ali Fadlallah & Sons, a registered business name and the evidence of the sole witness of the Respondent where he said is name was Hussain Fadlallah and that he was the Respondent trading under the name and style of Ali Fadlallah & Sons. Counsel stated that the evidence of the witness was at variance with the pleadings which presupposed that it was Ali Fadlallah that carried on business under the name and style of Ali Fadlallah & Sons and that the witness stated under cross-examination that his name was not Ali Fadlallah and that Ali Fadlallah was in Kano.
Counsel stated that the witness gave evidence that he was the person who held negotiations with Messrs A. H. Suleiman & Sons Ltd and that he was the person that handed over the original Certificate of Occupancy and that he did so in the presence of one Ali Awada. Counsel stated that the averments in the pleadings suggested that it was Ali Fadlallah trading under the name and style of Ali Fadlallah & Sons that directly carried out these acts and not Hussain Fadlallah, the witness, and that as such the evidence of the witness was at best hearsay evidence and was inadmissible and he referred to the provisions of Sections 37, 38 and 126 of the Evidence Act and the case of Ojo Vs Gharoro (2006) FWLR (Pt 316) 197. Counsel stated that the evidence of the witness was at variance with and contradicted the pleadings of the Respondent and that the variance and the contradictions were so grave, material and fundamental and they touched the foundation of the case of the Respondent and that the evidence ought to have been rejected and discountenanced by the lower Court and he referred to the cases of Abubakar Vs Joseph (2008) FWLR (Pt 432) 1065 and Administrator General & Public Trustee Delta State Vs Ogogo (2006) FWLR (Pt 293) 256.
Counsel stated that the person called Ali Fadlallah (trading under the name and style of Ali Fadlallah & Sons) did not give evidence in support of his pleadings and that the reliance placed by the lower Court on the evidence of sole witness of the Respondent was wrongful. The further arguments of Counsel on the deliberations of the lower Court on the documentary evidence led by the Appellant as Exhibit D1 has become superfluous in view of the expunction of the evidence led by the Appellant before the lower Court.
In his response, Counsel to the Respondent conceded that the witness did wrongly describe himself as the Respondent in the opening part of his testimony, but stated that this should not affect the gravamen of his testimony and that he gave clear and lucid evidence in support of the Respondent’s claims. Counsel stated that, in a declaratory action, it was not the law that a party must appear personally to testify and that it was sufficient if he led credible evidence to substantiate his claim and he referred to the cases of Shittu Vs Fashawe (2005) 14 NWLR (Pt 946) 674 and Ukwuyok Vs Ogbulu (2010) 5 NWLR (Pt 1187) 316. Counsel stated that apart from the confusion of the witness that he was not the actual Respondent, his whole testimony of the events that took place was unchallenged and un-contradicted at trial and ought to be believed and relied on as the lower Court did and he referred to the case of Okeke Vs Agbodike (1999) 4 NWLR (Pt 638) 215.
Counsel alluded to the existence of an agency relationship between the Respondent and the witness and which he said should be presumed or inferred from the fact that the Certificate of Occupancy in issue in this matter was in the name of the Respondent and the evidence of the witness that he was the person who handed the Certificate of Occupancy to a third party. Counsel stated that it was settled law that an action brought by an agent of a disclosed principal or a donee of a Power of Attorney can only be validly filed in the name of the disclosed principal or donor, and not in name of the agent and he referred to the case of Vulcan Gases Ltd Vs G. F. Industries AG (2001) 9 NWLR (Pt 719) 610. Counsel stated that the assertion of the Counsel to the Appellant that the evidence of the evidence was hearsay and inadmissible was belied by the quality of the evidence of the witness which was a vivid, personal and eye witness account of his direct dealings with the third party concerned over the property.
Counsel stated that apart from his mis-description of himself as the Respondent, there was no contradiction between the evidence of the witness and the pleadings and that the testimony of the witness was in full tandem with the facts as pleaded. Counsel stated that the mis-description was a trivial inconsistency between the evidence and the pleadings of the Respondent and that the Appellant has not shown any miscarriage of justice occasioned to it thereby and it should thus not form a basis for this Court disturbing the findings made by the lower Court on the case of the Respondent and he referred to the case of Okeke Vs Agbodike supra. Counsel urged the Court to resolve the issue for determination in favour of the Respondent.
The complaint of the Appellant under this issue for determination is against the evaluation of evidence carried out by the lower Court. It is settled law that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt 1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353.
It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse. See Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Ayinde Vs State (2019) 12 NWLR (Pt 1687) 410, State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289, MTN Vs Corporate Communication Investment Ltd (2019) LPELR 47042(SC).
A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable. See Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217, State Vs Sani (2018) 9 NWLR (Pt 1624) 278. Therefore, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark of a re-evaluation of the evidence led by the parties where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice.
Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court. See Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92.
In deliberating on the case of the Respondent, the lower Court stated in the judgment thus:
“The above testimony of PW1 that he is the plaintiff in this case trading under the name of Ali Fadlallah & Sons has not been challenged or discredited during cross-examination. Also the testimony of PW1 that he personally gave A. H. Suleiman & Sons the original certificate of occupancy for the purpose of conducting a search only has not been challenged or discredited during cross-examination, and for this and in the absence of any other challenges, the Court is satisfied that PW1 is the plaintiff in this case.”
The lower Court thereafter traversed through the evidence of the witness and found that it was in consonance with the pleadings and that it was not challenged or discredited and was credible and sufficient to sustain the claims of the Respondent.
Counsel to the Appellant has contended against these findings of the lower Court on the grounds that (i) the finding that the witness was the plaintiff was not in consonance with the pleadings of the Respondent and the evidence of the witness; (ii) that it was incumbent on Ali Fadlallah to attend Court to testify in person in view of the pleadings and that his failure to do so rendered the evidence of the witness hearsay and inadmissible.
Now, the pleadings of the Respondent described the Respondent as Ali Fadlallah (trading under the name and style of Ali Fadlallah & Sons). The witness in his evidence stated that his name was Hussain Fadlallah and that he knew the Appellant and that he was a business man and was the Respondent, a textile dealer, trading under the name and style of Ali Fadlallah & Sons. Under cross-examination, the witness stated that his name was not Ali Fadlallah and that Ali Fadlallah was in Kano. It is correct as stated by Counsel to the Appellant that there was discordance between the pleadings and the evidence of the witness that he was the Respondent as described on the pleadings, and this fact was admitted and conceded by the Counsel to the Respondent.
It must be noted that Counsel to the Respondent lunged into an explanation in his brief of arguments of the presence of an agency or donor and donee of power of attorney relationship between the witness and Ali Fadlallah. No such relationship was pleaded and neither was any evidence led thereon. It is elementary that address of Counsel cannot be substituted for pleadings and/or evidence. See Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt 109) 352, Auto Import Export Vs Adebayo (2005) LPELR 642(SC), Agugua Vs State(2017) 10 NWLR (Pt 1573) 254, Oforishe Vs Nigeria Gas Co., Ltd (2018) 2 NWLR (Pt 1602) 35. The finding of the lower Court that, on the state of the pleadings and evidence led, the witness was the person described as the Respondent on the pleadings is unsupportable. The first contention of Counsel to the Appellant against the evaluation of evidence carried out by the lower Court is upheld.
With regards to the second contention of Counsel to the Appellant, this Court must say that it finds the assertion that it was incumbent on the person called as Ali Fadlallah (trading under the name and style of Ali Fadlallah & Sons) to attend Court to testify in person in proof of his claims and that his failure to do so meant that the evidence of his witness was hearsay and inadmissible a bit far-fetched. Counsel to the Appellant neither demonstrated why this must be so nor did he refer to any case law authority in support of the assertion. The law is that a party to a civil case is not bound to call a particular witness or witnesses, if he can prove his case without calling that particular witness. It is for the party who perceives that a particular witness is vital or material to his case on a particular issue that has the duty to call such a witness. Accordingly, it is not for the adversary or even the Court to dictate to such party which witness to call. It is within the exclusive preserve of a party or his Counsel, after weighing all the facts and circumstances of his case to decide on the person or persons he will call as witnesses in support of his case. Such a witness may be the party himself or someone other person. All that is required of a party in a civil case is to call such evidence and prove the averments in the pleadings. See Bello Vs Kassim (1969) NMLR 149, Lawal-Osula Vs Lawal-Osula (1993) 2 NWLR (Pt 274) 158 at 179, Esika Vs Medolu (1997) 2 NWLR (Pt 485) 54, Ogolo Vs Ogolo (1997) 7 NWLR (Pt 512) 310, Olori Motors & Co Ltd Vs Union Bank of Nigeria Ltd (1998) 6 NWLR (Pt 554) 493, Adesina Vs Afolabi (2001) 31 WRN 159, Shittu Vs Fashawe (2005) 7 SCNJ 337, Jala Vs Jala (2017) LPELR 43320(CA).
Thus, the necessary question is – whether the sole witness of the Respondent gave evidence in proof of the averments in the statement of claim of the Respondent? A read through the notes of evidence contained in the records of appeal show that witness testified that he was the person directly involved in the transactions and who carried out the specific acts pleaded in the statement of claim and he gave a lucid, clear and explanatory testimony in proof of the averments and, as noted by the lower Court, the evidence of the witness was not discredited, challenged or disparaged under cross-examination. The evidence of the witness was obviously not hearsay evidence. It is good law that unchallenged or un-contradicted oral evidence is admissible to establish the existence of a fact on which it is based and such evidence can be believed and relied upon by a trial Court in making findings. See Nigeria Construction Ltd Vs Okugbeni (1987) 4 NWLR (Pt 67) 89, Ikuomola Vs Oniwaya (1990) 4 NWLR (Pt 146) 617, Lagos State Development & Property Corporation Vs Nigeria Land & Sea Foods Ltd (1992) 5 NWLR (Pt 244) 653, Eyo Vs Onuoha (2011) 3 SCNJ 302. Counsel to the Appellant has not given this Court any reason to fault the finding of the lower Court that the evidence of the witness was credible, cogent and sufficient to sustain the claims of the Respondent. The second contention of Counsel was baseless.
In view of these findings, the next question that arises is – whether the error committed by the lower Court in finding that the witness who testified for the Respondent was the Respondent in the matter is sufficient for this Court to overturn the decision of the lower Court granting the claims of the Respondent? This Court thinks not. The fact of the wrongful description of the witness as the actual Respondent in the matter did not derogate from the cogency of the evidence of the witness on the facts pleaded in the statement of claim. It is settled law that it is not every error committed by a lower Court that would result in its decision being set aside on appeal. For an error to be worthy of having that effect, it must be relevant to the issues in contention between the parties and be substantial as to lead to a miscarriage of justice – First Bank of Nigeria Plc Vs Ozokwere (2014) 3 NWLR (Pt 1395) 439, Azabada Vs State (2014) 12 NWLR (Pt 1420) 40.
The required onus of proof on the Respondent to succeed on his claims, in the absence of a valid statement of defence and evidence thereon from the Appellant, was minimal proof. The evidence of the witness was more than sufficient to discharge the onus of proof. The second issue for determination is resolved in favour of the Respondent.
In conclusion, this Court finds no merit in the appeal and same is hereby dismissed. The judgment of the High Court of Kano State delivered in Suit No K/611/1999 by Honorable Justice Nuhu Yahaya Galadanchi on the 13th of February, 2014 is hereby affirmed. The Respondent is awarded the costs of the appeal assessed at N100,000.00.
These shall be the orders of the Court.
HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of reading, in draft, the judgment of my learned brother Habeeb Adewale Olumuyiwa Abiru, JCA just delivered. I agree with his reasons therein and the conclusion that the appeal is lacking in substance.
For same reasons, which I adopt, the appeal is hereby dismissed. I subscribe to the consequential orders made in the judgment.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I entirely agree with the reasoning and conclusion reached that the appeal is without merit. I too dismiss the appeal and affirm the decision of the trial Court. I also abide by all other consequential orders as contained in the lead judgment.
Appearances:
T. Okitikpi with him, Temitope Oyebisi & S. O. AbdulRasheed For Appellant(s)
AbdulHafees D. Khalid For Respondent(s)