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UDECHUKWU v. NNUBIA (2022)

UDECHUKWU v. NNUBIA

(2022)LCN/16564(CA) 

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Monday, April 25, 2022

CA/PH/313/2018

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

DANIEL UDECHUKWU APPELANT(S)

And

PASTOR NELSON OKORO NNUBIA RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON AN UNSIGNED WRIT OF SUMMONS

In the case of Ekine v. West [2021] LPELR-56282(CA), this Court (per Olabode Abimbola Adegbehingbe, JCA), on the issue of non-signing of a writ of summons, stated as follows:
“In determining (a) above, it is true, upon an examination of the writ of summons at pages 1-3 of the record of appeal, that the process is not signed, though it announces that it was issued by O. Manners West Esq., of the Law Firm of Amachree and Amachree, 49, Moorehouse Street, Port Harcourt. The relevant provisions of the High Court of Rivers State (Civil Procedure) Rules, 2010 is Order 6 Rules 1-3. Order 6 Rule 3, definitely renders its tenor in imperative terms, while demanding that either a claimant or his legal practitioner should sign a writ of summons prepared for filing. The import of the two decisions of this Court cited above, crystallized to the fact that an unsigned writ of summons is not an irregularity as contended, but goes to the root of the process that seeks to originate the action. The learned counsel for the respondent tried to wriggle himself out of the situation in which he found himself, unfortunately, I cannot see him succeeding. The issue at hand is that the writ originating the action before the trial Court was not signed, and in the eyes of the law, a worthless paper.
PER ADEGBEHINGBE, J.C.A.

THE POSITION OF LAW ON THE CONDITIONS UPON WHICH THE COURT CAN EXERCISE JURISDICTION IN A MATTER

In the appeal being determined herein, the consequence of lack of authenticating signature from either the respondent or his legal practitioner, sucked jurisdiction out of the proceedings intended to be commenced by the writ of summons filed on 20/02/2013, at the Registry of the Court below. A Court has and can only exercise jurisdiction when:
(a) it is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another; and
(b) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of the Court’s jurisdiction. See Madukolu v. Nkemdilim [1962] 2 SCNLR 341. PER ADEGBEHINGBE, J.C.A.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): The suit which led to this appeal was filed on 16/03/2012. It was filed in the registry of the Port Harcourt Division of the High Court of Rivers State. The respondent in this appeal was the claimant in the suit. The respondent sued the appellant in this appeal, as the defendant. In the writ of summons and paragraph 10 of the statement of claim (filed together) the respondent prayed the lower Court to make the following orders:
“a. A DECLARATION that the claimant by inheritance is entitled to the customary and statutory right of occupancy over the piece or parcel of land being lying and situate at Ohia Barbwire MEASURING 1483.82 SQ MTS. IN PLAN NO VNN/SC/RV036/1988, in Woji Por Harcourt Rivers State and can put it to whatsoever use he wishes.
b. A DECLARATION that all that piece of parcel of land measuring and approximately three plots lying and situate at as Ohia Barbwire MEASURING 1483.82 SQ MTS. IN PLAN NO VNN/SC/RV036/1988, in Woji Port Harcourt Rivers State belongs to the claimant.
c. AN ORDER of perpetual injunction restraining the defendant his privies, representatives, agents, or whatsoever and by whatever name called from trespassing into the said piece or parcel of land, subject matter of this action.
d. An order of the Court directing the defendant to pay N10 Million Naira damages cost of economic tree and for renting the claimant land.”
(See pages 1-5 of the record of appeal).

The appellant stated his counter-claim in paragraph 17 of his amended statement of defence and counter-claim, filed on 19/05/2016 (pages 116-120) as follows:
“WHEREFORE the defendant counter-claims against the claimant the following:
i) An order for possession against the claimant his servants, agents and privies in favour of the defendant and his principal Mr. Timothy Kemjika Onuoha.
ii) An order of injunction restraining the claimant his servants, agents and privies from further trespass into the land in dispute.
iii) the sum of TWENTY MILLION N20,000,000.00 being general damages and special damages incurred in the defence of this suit.
Particulars of special damages
i) Cost of securing bail at Calabar – 350,000.00
ii) Professional fee for present suit N2,000,000.00
iii) Transport fare 100,000.00
Subtotal N2,450,000.00
General damages N17,550,000.00
Total N20,000,000.00.”

At the end of trial, the lower Court (Coram: Justice G. O. Omereji) delivered its judgment, dated 12/01/2018. The Court concluded its judgment (at page 236 of the record of appeal), as follows:
“Having resolved the issue in favour of the Claimant, the Claimant has proved that he is entitled to the reliefs sought while the counter-claim of the Defendant which has not been proved is hereby dismissed for lacking in merit.
Since I have held that the Claimant has proved his case on the balance of probability, I hereby grant the reliefs (a), (b) and the declaration sought.
I also grant the Order of Perpetual Injunction sought by the Claimant in his relief (c).
Relief (d) is for an order of the Court directing the Defendant to pay Ten Million Naira damages, cost of Economic trees and for renting the Claimant’s land, I hereby grant to the Claimant the sum of Five Million Naira (N5,000,000.00) instead of Ten Million Naira (N10,000,000.00).”

The appellant was an unhappy person, after the judgment was delivered. The appellant manifested his discontent by filing a notice of appeal, on 10/05/2018, which complained in five grounds, without particulars, thus:
“GROUND ONE
The learned trial judge erred in law and acted without jurisdiction when the Court entertained the Claimant/Respondent’s suit for Customary and Statutory right of occupancy over land where it is very clear in the face of the Writ of Summons that the Writ of Summons was not being signed by the Claimant counsel.

GROUND TWO
The learned trial judge erred in law and acted without jurisdiction when the Court entertained the Claimant/Respondent’s suit over land where. It was clear that there was no NBA stamp of the counsel identifying him as a legal practitioner.

GROUND THREE
The learned trial judge erred in law and acted without jurisdiction when he granted the Claimant/Respondent’s claims where it was very clear that the Claimant/Respondent lacked the locus standi to institute the suit.

GROUND FOUR
The learned trial judge erred in law and acted without jurisdiction when he granted the Claimant/Respondent reliefs where it is very clear that the Defendant/Appellant is not a proper party.

GROUND FIVE
That the learned trial judge erred in law when he awarded the sum of five million naira (5,000,000.00) as damages when the Court was in violation of law and lacked jurisdiction to determine the suit.”

Appellant’s brief of argument was filed on 30/10/2018, deemed properly filed and served on 10/02/2022, and was settled by Chief Kingsley Chuku. Learned counsel distilled five issues for the determination of the appeal, as follows:
“i. Whether the learned trial judge erred in law in assuming jurisdiction to hear and determined the suit of the Respondent, when it’s clearly shown on the face of the writ of summons, that the writ of summons was not signed by the Respondent’s counsel.
ii. Whether the Respondent’s originating processes filed without affixing the stamp and seal of a Legal Practitioner, and the Respondent’s Counsel without making any oral or written application to regularize same, does not offend the provision of Rule 10(1) of the Rules of Professional Conduct 2007.

iii. Whether the Respondent having dispossessed the subject matter of the Suit has sufficient right and/or locus standi to maintain an action against the Appellant for trespass to the said property?
iv. Whether the trial judge erred in law by entertaining the suit against the Appellant despite the Appellant’s disclosure of a named and known Principal Mr. Timothy Onuoha who is also known to the Respondent before the commencement of the Suit at the Lower Court?
v. Whether the trial Court had the jurisdiction to hear the incompetent suit of Respondent, and the award of the sum of Five Million Naira (N5,000,000.00) as damages, was awarded without jurisdiction.”

The respondent’s brief of argument was filed on 27/08/2019, but deemed properly filed and served on 10/02/2022, settled by Ani O. Ani Esq. Learned counsel found only one issue for the determination, which is:
“Whether the learned trial Judge properly evaluated and ascribed probative value to the Affidavit evidence placed before it in exercising is discretion in granting the Respondent’s application.”

The appellant filed a reply brief of argument on 06/11/2019, which was deemed properly filed and served on 10/02/2022.

Hearing of the Appeal
The appeal was heard on 10/02/2022. T. D. Jaja Esq. (holding K. Chuku Esq.’s brief) appeared for the appellant. Learned counsel adopted the appellant’s brief of argument filed on 30/10/2018 and the reply brief of argument filed on 06/11/2019, both deemed properly filed and served on 10/02/2022, as argument of the appeal. He urged the Court to allow the appeal and set aside the judgment of the lower Court.

Ani O. Ani Esq., appeared for the respondent. Learned counsel adopted the respondent’s brief of argument filed on 27/08/2019 but deemed properly filed and served on 10/02/2022, as argument of opposition to the appeal. He urged the Court to dismiss the appeal.

Appellant’s Argument of the Appeal
In arguing the first issue for determination, appellant’s counsel submitted that the respondent’s writ of summons filed before the lower Court was incompetent having not been signed by respondent’s counsel.

With respect to the second issue, appellant’s counsel submitted that the Rule 10 of the Rules of Professional Conduct of Legal Practitioners 2007 was breached by the respondent’s counsel failing to affix his professional seal to the processes filed to commence the suit and without any effort made to correct the anomaly.

On the third issue, learned counsel pointed out that the respondent lacked locus standi to bring the suit before the lower Court, as he did not have any extant interest in the land in dispute, which he admitted having sold, before the commencement of the suit, under cross-examination.

On the fourth issue, learned counsel for the appellant contended that the respondent is an agent for a disclosed principal (Mr. Timothy Onuoha) and is therefore not a proper party in the suit.

On the fifth issue, it was argued that the lower Court treated the question of an unsigned writ of summons, as if it is a question of issuance of a writ of summons. He insisted that the lower Court lacked jurisdiction and its judgment amounts to a nullity.

Respondent’s Argument of the Appeal
On the first issue, respondent’s counsel pointed out that the writ of summons was issued by the Registrar of the lower Court, at the instance of respondent’s counsel. He stated that the appellant cannot deny that respondent’s counsel, Ani O. Ani Esq. signed the originating process, with the attention of the Court directed to page 5 of the record of appeal. Learned counsel submitted that the lower Court had jurisdiction to determine the suit.

On the second issue, respondent’s counsel explained that the stamp and seal was introduced to the legal profession in 2014, whereas the suit was filed on 16/03/2012. Going by processes filed after introduction of the seal and stamp in 2014, respondent’s counsel affixed seal and stamp, as shown in the record of appeal (e. g. pages 115, 179 etc.). The attention of the Court was drawn to the fact that the appellant’s counsel did not affix the stamp and seal to his own processes until in 2015. He urged the Court to hold that those were not compliance issues, at the time of filing the suit.

On the third issue, it was submitted that the claim of the respondent fell within a time space of 2001-2011. It was noted that the lower Court was concerned with trespass which took place in 2007-2011 (page 4 of the record of appeal). The respondent, under cross-examination, admitted (page 218 of the record) that he was in possession of the land in 2010-2011. Incongruously, learned counsel highlighted the fact that the appellant tendered a Power of Attorney dated 29/06/2012, birthed four months after the commencement of the suit. He insisted that the appellant did not deny trespassing on the land in dispute nor did he ever say that he did not remove economic trees from the land. (See paragraph 13 of the counter-claim at pages 28-28 of the record of appeal) or that he did not give out the land on rent for three years. He submitted that unchallenged evidence ought to be accepted by the Court, relying on the case of Fari v. FMF Ltd. [2004] All FWLR (Pt. 235) 20. He submitted that the respondent cannot maintain an action against his purchaser.

The respondent’s counsel found time to offer advice to his opponent when he stated that the better option for the appellant to oppose the suit was to have considered whether the suit was statute-barred. He explained that the claim of the respondent covered 2007-2011, which evidence was not debunked (page 218 of the record of appeal). Learned counsel urged the Court to uphold the lower Court’s decision.

On the fourth issue, the position of learned counsel is that Exhibit C shows that it is dated 29/06/2012 (page 215 of the record of appeal), while trespass committed was in 2007-2011. The appellant admitted that he was in possession of the land in dispute in 2010, when cross-examined. That implied, in the view of learned counsel, that the appellant was without a principal all through that period. Learned counsel submitted that Exhibit C was made specifically for the purpose of the suit, which was filed on 16/03/2012, with reliance placed on Section 157 of the Evidence Act, 2011 and the cases of Samson Owie v. Solomon E. Ighiwi [2005] All FWLR (Pt. 248) 1771 and Agballah v. Nnamani & Anor [2005] All FWLR (Pt. 245) 1060. He accused the appellant of procuring his Power of Attorney four months after the suit was filed and for the purpose of the suit. Learned counsel submitted that the appellant was the necessary party to be sued and not Timothy Onuoha.

On the fifth issue, learned counsel submitted that the lower Court acted within its jurisdiction when it determined the suit before it.

The appellant’s reply brief of argument referred the Court to the decision in S. P. D. C. N. Ltd. v. Obonogina [2018] 17 NWLR (Pt. 1648) 221 at 233 on how to, and who should, issue writ of summons. There was nothing new or fresh advanced in the reply brief.

Resolution of the Issue of Signature
In the case of Ekine v. West [2021] LPELR-56282(CA), this Court (per Olabode Abimbola Adegbehingbe, JCA), on the issue of non-signing of a writ of summons, stated as follows:
“In determining (a) above, it is true, upon an examination of the writ of summons at pages 1-3 of the record of appeal, that the process is not signed, though it announces that it was issued by O. Manners West Esq., of the Law Firm of Amachree and Amachree, 49, Moorehouse Street, Port Harcourt. The relevant provisions of the High Court of Rivers State (Civil Procedure) Rules, 2010 is Order 6 Rules 1-3. Order 6 Rule 3, definitely renders its tenor in imperative terms, while demanding that either a claimant or his legal practitioner should sign a writ of summons prepared for filing. In this case, the writ of summons was not signed and that abstinence has consequences. In the case of Orok v. Eta [2021] 12 NWLR (Pt. 1790) 350 at 371 this Court stated, in similar circumstances, after reviewing previous decisions of this Court, as follows:
“The import of the two decisions of this Court cited above, crystallized to the fact that an unsigned writ of summons is not an irregularity as contended, but goes to the root of the process that seeks to originate the action. The learned counsel for the respondent tried to wriggle himself out of the situation in which he found himself, unfortunately, I cannot see him succeeding. The issue at hand is that the writ originating the action before the trial Court was not signed, and in the eyes of the law, a worthless paper. The two decisions cited before now, eloquently answered all arguments postulated by the respondent, and I wholly adopt same in the resolution of this appeal. The resultant effect is that the unsigned writ is incompetent, and the lower Court robbed of the jurisdiction to try the suit before it. In other words, the purported trial and decision arrived at by the Court below is a nullity and all orders made therein null and void. The issue is resolved in favour of the appellant.”
In the appeal being determined herein, the consequence of lack of authenticating signature from either the respondent or his legal practitioner, sucked jurisdiction out of the proceedings intended to be commenced by the writ of summons filed on 20/02/2013, at the Registry of the Court below. A Court has and can only exercise jurisdiction when:
(a) it is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another; and
(b) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of the Court’s jurisdiction. See Madukolu v. Nkemdilim [1962] 2 SCNLR 341.
The suit determined by the lower Court was ensnared by condition (c) above. The lower Court did not have jurisdiction to determine the respondent’s suit and its judgment, regarding the grant of the respondent’s claim, which is the part of the subject of this appeal, was a product of miscarriage of justice. The judgment of the lower Court, regarding the claim of the respondent, dated 03/05/2016, signed by Justice S. O. Benson, is hereby set aside. The claim of the respondent before the lower Court is hereby struck out, for want of requisite jurisdiction in the lower Court to determine it, as constituted.”
As it was in Ekine’s case, so it is in this case. I have scrutinized the writ of summons filed in the lower Court on 16/03/2012 (pages 1-2 of the record of appeal). I did not find any signature ascribed to the respondent’s solicitor. The name of the respondent’s solicitor (Ani O. Ani Esq.) is written on page 2 of the document, without the requisite accompanying, authenticating signature. The absence of a signature compromised the integrity of the writ of summons and deprived the lower Court of jurisdiction to determine the suit purportedly filed before it. The suit was not initiated by due process of law, and upon fulfilment of a condition precedent to the exercise of the Court’s jurisdiction. The judgment of the lower Court delivered on 12/02/2018, without jurisdiction, is a nullity and is bound to reversed and set aside.

There is no purpose to be served with the examination and consideration of the other issues in this appeal, which is hereby allowed. The judgment of the lower Court dated 12/02/2018 is hereby set aside. The suit of the respondent (PHC/554/2012) is hereby struck out.

TANI YUSUF HASSAN, J.C.A.: I read in draft the lead Judgment of my learned brother, OLABODE ABIMBOLA ADEGBEHINGBE, JCA.
I agree.

PAUL OBI ELECHI, J.C.A.: My brother, Olabode Abimbola Adegbehingbe, JCA made available to me a draft of the judgment just delivered.

I am in total agreement with him that the appeal be and is hereby allowed as there is merit thereupon.

I also join his Lordship in allowing this appeal, set aside the judgment of the lower Court and the consequent orders made.
Appeal allowed.

Appearances:

Appellant was served hearing notice by text message but absent For Appellant(s)

Ani O. Ani, Esq. with him, B. O. Wogbo, Esq. For Respondent(s)