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UBN PLC v. NWANOJUO (2020)

UBN PLC v. NWANOJUO

(2020)LCN/15650(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, October 28, 2020

CA/C/454/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

HammaAkawuBarka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

UNION BANK OF NIGERIA PLCAPPELANT(S)

And

INNOCENT N. NWANOJUORESPONDENT(S)

 

RATIO:

A DEFECT IN COMPETENCE IS FATAL AND THE VALIDITY OF WRIT OF SUMMONS

It was decided in plethora of judicial decisions that any defect in competence is fatal and proceedings are a nullity, however well conducted and decided. B. M. LTD V. WOERMANN – LINE (2009) 13 NWLR (prt 1157) 149 PORBENI V. PABOD FINANCE INVESTMENT CO (2002) 3 NWLR (prt 754) 452 and EZE V. OKECHUKWU (2015)10 NWLR (prt 1467) 307.
It is equally settled that the validity of the writ of summons, issue and or its service are fundamental conditions precedent to the assumption of jurisdiction by a Court. See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341 and SLB CONSORTIUM LTD V. NNPC (supra).
In an effort to buttress his point, learned counsel for the appellant has argued that the above provisions of the extant rules of Court was similar to the provisions of Order 6 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000. ​

THE EFFECT OF NOT SIGNING A WRIT OF SUMMONS BY THE LEGAL PRACTITIONER

The similarity of these rules is that an application for writ of summons was to be originated by a legal practitioner or a plaintiff. But the writ was to be prepared, signed and issued by a Registrar. Thus, there is a difference between a writ of summons and an application. That being the case, the failure of a legal practitioner to sign a writ of summons at a trial Court is of no effect. It does not vitiate the proceedings. See S.P.D.C.N. V. GBENIYEI (2019) 13 NWLR (prt 1689) 272 at 294. In FAMFA OIL LTD V. A.G., FEDERATION (2003

THE JURIDICTION OF A COURT OF LAW      

Before any Court of law assumes jurisdiction to determine or adjudicate on a cause or matter, the Court must be competent. A Court is competent when:
(a) the Court is properly constituted as regards members and qualification of the bench and no member is disqualified for one reason or another;
(b) the subject matter of the case is within the Court’s jurisdiction, and
(c) the matter is initiated by due process of law that is, the case comes before the Court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
It was decided in plethora of judicial decisions that any defect in competence is fatal and proceedings are a nullity, however well conducted and decided. B. M. LTD V. WOERMANN – LINE (2009) 13 NWLR (prt 1157) 149 PORBENI V. PABOD FINANCE INVESTMENT CO (2002) 3 NWLR (prt 754) 452 and EZE V. OKECHUKWU (2015)10 NWLR (prt 1467) 307. MUHAMMED LAWAL SHUAIBU, J.C.A. 

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against an interlocutory decision of the High Court of Cross River State, sitting at Calabar delivered on 16th February, 2018. The defendant now appellant vide a notice of preliminary objection filed on 20/7/2017 prayed the lower Court for the followings:-
1. An order striking out suit NO. HC/288/2014 for reason of its being incompetent before this honourable Court.
2. An order setting down suit No. HJ/56/95 which was consolidated with Suit No. HJ/4/96 (now HC/288/2014) by the order of the honourable Court of justice, sitting at Ogoja for hearing.
3. And for such further orders as this honourable Court may deem fit to make in the circumstance of this case.

The grounds upon which the application was predicated are –
(a) The condition precedent to the institution of the action was not fulfilled by the claimant/respondent before instituting the same.
(b) That the writ of summons and the amended writ of summons in this suit NO. HC/288/2017 (which were originally numbered as Suit No. HJ/4/96 are incompetent before this Honourable Court as samewere not issued as required by law.
(c) That the honourable Court lacks jurisdiction to hear and determine this action on the basis of the incompetent writ of summons which was later amended by the order of the Court and filed on 16th March, 1998.

The claimant/respondent joined issues with the appellant herein by filing a counter-affidavit on 24/10/2017 wherein he denied the facts stated in the appellant’s affidavit. After considering the various affidavit of the parties together with the argument of the respective counsel, learned trial judge in a reserved and considered ruling delivered on 16th February, 2018 dismissed the preliminary objection at page 124 of the record of appeal as follows:-
…”the position here is that the writs said not to have been properly signed have the names of the legal practitioners who issued same written on them in addition to the names of the firm under which they practiced and then the adversary of the law firms.”

Dissatisfied, appellant appealed to this Court through a notice of appeal filed on 2/3/2018. The said notice of appeal at pages 125 – 127 of the record of appealcontains three grounds of appeal. Distilled from the three grounds of appeal, appellant formulated two issues for the determination of this appeal as follows:-
1. Whether the trial Court has jurisdiction to hear and determine this case in view of the fact that the condition precedent to the assumption of jurisdiction was not fulfilled by the respondent before the commencement of this action as the writ of summons in this case was not signed by the respondent or his legal practitioner.
2. Whether adequate consideration was given to the appellant’s case at the trial Court by the learned trial judge before the dismissal of the appellant’s preliminary objection challenging the jurisdiction of the Court.

On the part of the respondent, a lone issue is formulated for the hearing of this appeal thus:-
Whether the writ of summons in this case is competent to vest jurisdiction on the trial Court to entertain the case.

At the hearing of this appeal on 16/9/2020, Jerry Akpan Esq., who also settled the brief of argument, adopted and relied on the appellant’s brief of argument filed on 10/12/2018 but deemed as properly filed on16/6/2010 in urging this Court to allow the appeal. The respondent’s brief of argument settled by L. N. Umar, Esq. was filed on 23/7/2020. F. O. Ameh, Esq., adopted and relied on the said respondent’s brief of argument in urging this Court to dismiss the appeal.

It is imperative to state here that the two issues formulated by the appellant can conveniently be subsumed into the lone issue identified by the respondent. I shall therefore determine this appeal based on the lone issue formulated by the respondent for its brevity and conciseness.

Proffering argument on behalf of the appellant, learned counsel referred to Section 84 (4) of the Evidence in contending that for a document to be valid, it must be signed or authenticated by the maker. The essence of signing a document according to the learned counsel is to authenticate a document and thus give effect to the document. It makes the maker to assume responsibility for it and also signature on a document, apart from validating the document gives probative value to the document to be traced to the maker as it has origin. He submitted that signing of a Court process by the respondent or hislegal practitioner where he sued through his legal practitioner makes the process so signed to be competent and failure to do so, renders the proceedings incompetent. Counsel cited OMALAYE V. TAJUDEEN (2012)15 NWLR (prt 1323) 315 at 338 OKAFOR V. NWEKE (2007) 10 NWLR (prt 1043) 521 and OKETADE V. ADEWUNMI (2010)8 NWLR (prt 1195) 63 at 74 – 75.

In further argument, counsel referred copiously to the provisions of Order 5 Rule 12 (1) of the Cross River State High Court Edit 1987 vis-a- vis Order 16 Rule 10 (1) of the Federal High Court (Civil Procedure) Rules 2000 in submitting that even though none of these rules made provision for signing the writ of summons or originating Court process by the plaintiff or the legal practitioner who prepares it but in ensuring that a valid Court process is filed, the law insist that it must be signed by the legal practitioner who prepares it and filed same in Court. He therefore contended that suit NO. HJ/4/96 ought to have been signed by the legal practitioner who prepares and filed same at the registry of the trial Court, but the respondent’s merely wrote his name and that of his law firm without signing thewrit. He referred to SLB CONSORTIUM V. NNPC (2011) 9 NWLR (prt 1252) 317 to the effect that the unsigned originating process of the respondent is incompetent.

In response to the above argument, learned counsel to the respondent also relied on the provisions of Order 5 Rule 12 (1) of the Cross River State High Court (Civil Procedure) Edict of 1987 and submitted that the word “may” was used in relation to preparing, signing and issuing a writ of summons and therefore permissive. He referred to KALIEL V. ALIERO (1999)4 NWLR (prt 597) 144 to the effect that when the word “may” is used it is permissive as against “shall” which is mandatory.

Still in argument, learned counsel submitted that under the 1987 rules, the signing of a writ of summons was not compulsory and that the law applicable to an action is the law in existence at the time the cause of action arose and not the law in force at the time of instituting the action or time of judgment.

In further argument, learned counsel submitted that the whole gamut of the appellant’s case is to deploy technicalities in order to scuttle this matter and frustratethe respondent. He referred to FAYEMI V. ONI (2009)8 WRN 109 to contend that judicial authorities has long shifted from reliance on technicalities to doing substantial justice.

Before any Court of law assumes jurisdiction to determine or adjudicate on a cause or matter, the Court must be competent. A Court is competent when:
(a) the Court is properly constituted as regards members and qualification of the bench and no member is disqualified for one reason or another;
(b) the subject matter of the case is within the Court’s jurisdiction, and
(c) the matter is initiated by due process of law that is, the case comes before the Court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
It was decided in plethora of judicial decisions that any defect in competence is fatal and proceedings are a nullity, however well conducted and decided. B. M. LTD V. WOERMANN – LINE (2009) 13 NWLR (prt 1157) 149 PORBENI V. PABOD FINANCE INVESTMENT CO (2002) 3 NWLR (prt 754) 452 and EZE V. OKECHUKWU (2015)10 NWLR (prt 1467) 307.

It is equally settled that the validity of the writ ofsummons, issue and or its service are fundamental conditions precedent to the assumption of jurisdiction by a Court. See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341 and SLB CONSORTIUM LTD V. NNPC (supra).

The appellant’s contention here is that the respondent’s writ of summons in respect of Suit No. HJ/4/96 prior to the consolidation along with appellant’s suit No. HJ/56/95 and now consolidated into Suit No. HC/288/2014 is incompetent, same not having been signed by the legal practitioner who prepares and filed it at the registry of the trial Court. In S.P.C.N. LTD V. OBONOGNA (2018) 17 NWLR (prt 1648) 221 at 234 this Court has held that the validity of originating processes in a proceeding before a Court is sine qua-non, an indispensable condition necessary for the competence of the suit and indeed proceeding initiated by such process. Therefore, failure to commence a suit with valid writ and/or statement of claim goes to the root of the action.
​The question then is, was the respondent’s writ of summons in suit No. HJ/4/96 been initiated by valid processes? Where statute provides for a particular method of performing a duty, thatmethod and no other must have to be adopted. BUHARI V. INEC (2008)4 NWLR (prt 1078) 546. Learned counsel for the respondent has rightly submitted that the applicable law is the one in existence at time when the cause of action arose and the extant law was the High Court of Cross River State (Civil Procedure) Edict 1987. Order 5 Rule 12 (1) of the said Edict provides as follows:-
A writ of summons shall be issued by the registrar or the officer of the Court empowered to issue summons on application. The application shall ordinarily be made in writing by the plaintiff’s solicitor by completing form 1 in Appendix 6 to these Rules but the Registrar or other officer empowered to do so may, were the applicant for the writ of summons is illiterate, or has no solicitor, dispense with a written application and instead himself record full particulars of an oral application made on that record a writ of summons may be prepared, signed and issued.
In an effort to buttress his point, learned counsel for the appellant has argued that the above provisions of the extant rules of Court was similar to the provisions of Order 6 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000. ​

The similarity of these rules is that an application for writ of summons was to be originated by a legal practitioner or a plaintiff. But the writ was to be prepared, signed and issued by a Registrar. Thus, there is a difference between a writ of summons and an application. That being the case, the failure of a legal practitioner to sign a writ of summons at a trial Court is of no effect. It does not vitiate the proceedings. See S.P.D.C.N. V. GBENIYEI (2019) 13 NWLR (prt 1689) 272 at 294. In FAMFA OIL LTD V. A.G., FEDERATION (2003) 18 NWLR (prt 852) 453 at 471 and 467, the Supreme Court was very emphatic that once a prospective plaintiff has properly made his claim as required by law, delivered the same to the Registrar for assessment of the necessary fees payable and such fees are fully paid, his responsibility ceases. What is left to be done, such as signing the relevant process or the writ of summons or issuing of an originating summons are entirely the domestic affairs of the Court’s staff.
​Learned counsel for the appellant seems to have confused the requirements of signing Court’s processes by a legalpractitioner with the procedure of originating an action through an application by a legal practitioner or a plaintiff pursuant to Order 5 Rule 12 (1) of the extant rules. In both the cases of OKAFOR V. NWEKE (2007) 10 NWLR (prt 1043) 521 FIRST BANK PLC. V MAIWADA (2013) 5 NWLR (prt 1348) 444, ALAWIYE V. OGUNSANYA (2013) 5 NWLR (prt 1348) 570, EZE V. OKECHUKWU (supra) and hosts of other cases, are to the effect 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 firm in which he carries out his practice and that a firm of solicitors is not competent to sign a process.
In the instant, there is no requirement of signing the writ of summons by a legal practitioner as same was to be prepared, signed and issued by a Registrar.

In conclusion, the lone issue is resolved against the appellant. I find no substance in the appeal. It is accordingly dismissed with a costs which I assessed at N100,000.00 in favour of the respondent and against the appellant.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Muhammed L. Shuaibu JCA.

I agree with the reasoning and conclusion in the lead judgment. I also find no merit in the appeal.

It is perhaps to be said for the umpteenth time that the rules laid down in cases such as OKAFOR v. NWEKE (2007) 10 NWLR (Pt 1043) 521; ALAWIYE v. OGUNSANYA (2013) 5 NWLR (Pt 1348) 570 and such other cases are not applicable where there is no requirement of signing the writ of summons by a Legal Practitioner as when such writ was to be prepared, signed and issued by a Registrar.
For this and the fuller reasons given in the lead judgment. I also dismiss the appeal.

HAMMA AKAWU BARKA, J.C.A.: I was opportuned reading in draft the Judgment of my learned brother, Muhammed L. Shuaibu, JCA. I agree with his reasoning and the conclusion reached. I agree that the appeal be dismissed with costs. I also abide on costs as ordered in the lead judgment.

Appearances:

JERRY AKPAN, ESQ.For Appellant(s)

F. O. AMEH, ESQ.For Respondent(s)