UMEJEI v. AMEACHI
(2020)LCN/15733(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, March 13, 2020
CA/B/326/2017
Before Our Lordships:
Philomena Mbua Ekpe Justice of the Court of Appeal
Tunde OyebanjiAwotoye Justice of the Court of Appeal
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Between
LUCKY UMEJEI APPELANT(S)
And
PATRICK AMEACHI RESPONDENT(S)
RATIO:
ITHE ISSUANCE OF A WRIT OF SUMMONS
Order 3 Rule 6 of the Delta State High Court Rules is quite explicit on what is required for a valid Writ of Summons.
It states thus
“A writ of summons shall be issues by the Registrar or other officer of the Court empowered to issue summons on application. The application shall ordinarily be made in writing by the claimants solicitor by completing form 1 in the Appendix to these Rules: but the Registrar or other officer as aforesaid where the applicant for a writ of summons is illiterate or has no solicitor, may disperse with a written application and insteadhimself record full particulars of an oral application made and on that record a writ of summons may be prepared signed and issued.”
However in view of the current state of judicial decisions on this issue I resolve this issue in favour of the appellant. The law is settled that an originating process must be signed by the legal practitioner issuing it. See CA/B/337/2016.ALLANZA UCHE UGBOMAH V. OGBUESHI UZEM ALLANAH & 2 OTHERS (2018) LPELR – 44832 where this Court interpreted the same Delta State High Court Rules on this point. TUNDE OYEBANJI AWOTOYE, J.C.A.
WHO ISSUES THE WRIT OF SUMMONS?
I have gone through the Writ of summons filed by the Respondent at the lower Court. It is on pages 1 and 2 of the record of appeal. It is true the Writ of summons was not signed by either the claimant or his counsel.
Did this lapse vitiate the claim? The relevant Rules of Court in this appeal is the High Court of Delta State (Civil Procedure) Rules 2009.
Order 3 Rule 6 of the Delta High Court Rules makers it mandatory for the Writ of Summons to be issued by the Registrar or other officer of the Court. Order 8 of Writ shall not be necessary in addition to the signature of the Register or officer of the Court. TUNDE OYEBANJI AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellant against the judgment of Delta State High Court delivered on 19/2/17.
The claim of the Claimant/Respondent as per paragraph 20 of the Further Amended Statement of Claim reads thus:
“WHEREFORE the claimant claims from the defendant for
a. An order of Court directing the defendant to immediately pay back to the claimant the sum of N3,695,000.00 (Three million six hundred and ninety five thousand Naira) being the total sum of money the claimant paid to the defendant’s late father, Prince Paul Michael Chuks Urneje Mordi, for the purchase of different parcels of land at lbusa between 2008 and 2010 as the defendant’s father was later found not to be the owner of the parcels of land.
b. An order of Court directing the defendant to pay to the claimant the sum of N400,000,00 (Four hundred thousand Naira) only which the claimant gave to the defendant’s said father, on the defendants father’s request to enable him defend his claim of ownership of the land and in consideration of which he conveyed a parcel of land measuring 100 feet x 100 feet to the claimant on 1/5/2011 which he was later found not to have title to.
c. An order of Court directing the defendant to immediately pay back to the claimant the sum of N200,000.00 which the claimant paid to the defendant’s said father on 10/9/2008 for the purchase of a parcel of land on behalf of Mr. Francis ChizorAzeh as the defendant’s father did not have title to the land.
d. An Order of Court directing the defendant to immediately pay back to the claimant the sum of N200,000 which the claimant paid to the defendant’s said father in 2008 for the purchase of a parcel of land on behalf of Mrs. Mirian Ngozi Okafor as the defendant’s father did not have title to the land.
e. An order of Court directing the defendant to pay the claimant the sum of N5,000,000.00 (Five million Naira) being general damages for being prevented by the defendant’s said father from putting the said sums of money to other uses especially purchasing other parcels of land which the claimant would have resold at a huge profit.
f. Interest at the rate of 10% on the total sum adjudged due to the claimant from the dateof judgment until the judgment debt is fully liquidated.
g. Any other order or such further orders as the honourable Court may deem fit to make in the interest of justice.”
Parties filed and exchanged pleadings after which the learned trial Judge proceeded to hear the parties and their respective witnesses.
After hearing the parties, the learned trial Judge held that the claimant proved his case in part and proceeded to give judgment in his favour as follows:
“I have given due consideration to the evidence before me and I hold that the claimant has proved his case in part on the balance of probability Judgment is accordingly entered In the follow terms
a) I direct the defendant to Immediately pay back to the claimant the sum of #3,695,00000 (Three Million Six Hundred and Ninety Five -Thousand Naira) being the total sum of money the claimant paid the defendants late father, Prince Paul Michael Chuks Umejei Mordi, for the purchase of different parcels of land at Ibusa between 2008 and 2010 as the defendant’s father was later found out not to be the owner of the parcels of land
b) This relief fails and is refused<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
c) This relief fails and is refused
d) Relief fails and is refused.
e) Relief fails and is refused.
f) Interest at the rate of 10% on the total sum of #3,695,000.00 (Three Million six Hundred and Ninety Five Thousand Naira) only being the total sum adjudged due to the claimant from today being the 16th of February 2017 being the date of Judgment until the Judgment debt is fully liquidated.”
Dissatisfied with the decision, the Appellant filed Notice of Appeal on 13/3/17. Appellant’s Brief of Argument was deemed properly filed on 3/6/19. The Respondents brief was filed on 15/3/19. All these were done after transmission of record of appeal to his Court.
SUBMISSION OF COUNSEL.
APPELLANT’S BRIEF OF ARGUMENT
Appellant’s brief of argument was filed on the 13th day of November, 2017 and deemed filed on the 6th day of March 2019. It was settled by JONATHAN EKPERUSI ESQ.
Appellant’s counsel formulated three issues for determination form the grounds of appeal to wit
Whether the lower Court has jurisdiction to entertain the action.
2. Whether the action can be competently maintained against the appellant in his personal capacity.
3. Whether the Respondent is entitled to the grant of reliefs 20 (a) and (f) of his Further Amended Statement of Claim.
ISSUE ONE
Learned counsel to the appellant submitted that the proceedings at the trial Court was not commenced by due process of law and therefore robbed the Court of the requite jurisdiction to entertain the matter.
Counsel submitted that it was settled law that any Court process not signed by counsel or the issuing party was incurably defective and liable to be struck out.
He relied on NEW NIGERIAN BANK PLC V DENCLAG LIMITED (2005) 4 NWLR (PT 916) 582 AND ANOR in submitting that where an originating Court process was not signed, it becomes incompetent and renders the entire proceedings a nullity.
Counsel to the appellant relied on EDILCO (NIG) LTD V UBA PLC (2000) FWLR (PT 21) 792 and other decided cases and contended that it was settled law that an unsigned document was totally worthless and prayed the Court to resolve this issue in favour of the Appellant.
ISSUE TWO
Appellant’s counsel submitted that from the pleadings and evidence on record, that this action could not be maintained against the Appellant in his personal capacity.
Appellant’s counsel contended that it was not an excuse that the Appellant filed his memorandum of appearance, statement of Defence and participated in the action and relied on ESTATE OF ABACHA V EKE SPIFF (2009) ALL FWLR (PT 467) at 22.
Appellants counsel submitted that the Appellant was wrongly sued thereby rendering the action incompetent and prayed the Court to so hold.
ISSUE THREE
Learned counsel to the Appellant submitted that the Respondent was not entitled to the grant of reliefs 20 (a) and (f) of his further Amended Statement of Claim.
He submitted that the claims in respect of relief 20 (a) from the pleadings and evidence adduce was not proved by the Respondent.
Appellant’s counsel submitted that the case of the Respondent was speculative and full of irreconcilable contradictions and as such could not warrant the granting of the reliefs in 20 (a) and (f) of the further amended statement of claim and urged the Court to resolve issue three in favour of the Appellant.
APPELLANT’S REPLY BRIEF OF ARGUMENT<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Appellant’s Reply brief of argument was dated 22nd day of March, 2019 and was filed on the 26th day of March 2019.
Appellant’s counsel contended that the provision of the High Court of Delta State (civil Procedure Rules 2009 dealing with signing of a writ of summons was interpreted by this Court in the case of ALLANZA UCHE UGBOMAH VS OGBUESHI NZEM ALLANAH & 2 ORS with appeal No. CA/B/337/2016 now reported as 2018 LPELR 44832) where the Court held that an originating process such as Writ of Summon and Notice of Appeal must be signed by the litigating party or a legal practitioner on his behalf.
Appellant’s counsel submitted that the mere typing of a person’s name on a process does not mean the process has been signed by that person.
See SUNDAY ADENEYE & ANOR VS ALHAJI BUKAR YARO (2013) 3 NWLR (PT 1342) 625 at 634 and ORS.
Appellant’s Counsel submitted by relying on FIRST BANK OF NIGERIA PLC & ANOR V ALHAJI SALMONU MAIWADA (supra) at 37 that even where it was not slated in any high Court (Civil Procedures) the Supreme Court held that an originating process must be signed by the litigant or the legal practitioner representing him before it can be valid to confer jurisdiction on the Court.
RESPONDENT BRIEF OF ARGUMENT
The respondent brief of argument was dated 15th March, 2019 and filed on the same day.
Respondent’s brief was settled by CHARLES OKOH ESQ and Respondent’s counsel formulated two issues for determination by this Court to wit;
1. Having regard to the Rules of Court whether the action was properly commenced and maintained against the Appellant and or the issues raised by the Appellant affect the jurisdiction of the Court to hear the case.
2. Whether the Respondent is entitled to the grant of reliefs 20(a) and (f) in his further Amended Statement of Claim.
ISSUE ONE
Respondent’s counsel argued that there was nowhere in the High Court of Delta State (civil Procedure) Rules 2009 where it was slated that a counsel applying for the issuance of writ must be signed before it could be valid.
Respondent counsel relied on Order 3, Rules 6 and Order 3, Rules 12(1) of the High Court of Delta State (Civil Procedure) Rules, 2009.
Respondent’s counsel argued that the cases cited by the appellant’s counsel in regards to issue one are irrelevant and inapplicable and such should be discarded.
Respondent’s counsel contended that by the rules of Court lawyers applies for a writ while Registrar or other officer of the Court issues writ.
Respondent’s counsel argued that flowing from the provisions of the Court of Appeal Rules and High Court of Delta State (Civil Procedure) Rules 2009, that the writ of summons was properly issued by the Registrar of the lower Court.
Respondent counsel argued that the Defendant/ Appellant waived his right by not objecting or complaining for non compliance with the Rules of Court. See the case of ANYANWOKO V OKOYE (2010) ALL FWLR PT 515 P.214 @ 229 Para D-H AND ANOR
Respondent’s learned counsel also relied on Order 5 Rule 1 on the effect of non compliance in arguing that failure may be treated as an irregularity and if so treated should not nullify the proceeding.
Respondent’s counsel argued that the case before the trial Court deals with claim for refund of money paid for a consideration that totally failed and was pending before the death of the defendant before the Court ordered for substitution in line with the Rules of Court. Respondent’s Counsel relied on Order 13 Rule 39 of the High Court of Delta State (Civil Procedure) Rules 2009
Respondent’s counsel contended that the administration of estate law does not apply in this case as it not about the administration of the deceased estate.
ISSUE TWO
Respondent’s counsel submitted that having regard to the pleadings and the evidence of the parties, the Respondent was entitled to the judgment in 20 (a) and (f) of the further amended statement of claim.
Learned counsel relied on SECTION 134 of the EVIDENCE ACT, 2011 and MOGAJI V ODOFIN (1978) 4 SC 91 @ 94. He argued the Claimant/Respondent pleaded and gave evidence of how he bought parcels of land from Defendant/Appellant’s father which facts were admitted by the Appellant.
Respondent counsel urged the Court to resolve both issues in favour of the Respondent.
The appellant formulated 3 issues for determination as follows:
Whether the lower Court has jurisdiction to entertain the action.
Whether the action can be competently mentioned against the Appellant in his personal capacity.
Whether the Respondent is entitled to the grant of Reliefs 20(a) and (f) of the further Amended Statement of Claim.
The respondent on the other hand in his brief of argument identified two issues for determination; the issues are:
Having regard to the Rules of Court and maintained against the Appellant and or the issues raised by the Appellant affect the jurisdiction of the Court to hear the case.
Whether the Respondent is entitled to the grant of reliefs 20(a) and (f) of the further Amended Statement of Claim.
RESOLUTION
I have deeply consider the issues formulated by the parties along with the record of appeal and the various processes filed.
I am of the humble view that the issues identified by the appellant are wide and apt enough for the just determination of this appeal. I therefore adopt them in this judgment.
ISSUE ONE
Having regard to the Rules of Court whether the action was properly commenced and maintained against the appellant and or the issues raised by the Appellant affect the jurisdiction of the Court to hear the case.
I have gone through the Writ of summons filed by the Respondent at the lower Court. It is on pages 1 and 2 of the record of appeal. It is true the Writ of summons was not signed by either the claimant or his counsel.
Did this lapse vitiate the claim? The relevant Rules of Court in this appeal is the High Court of Delta State (Civil Procedure) Rules 2009.
Order 3 Rule 6 of the Delta High Court Rules makers it mandatory for the Writ of Summons to be issued by the Registrar or other officer of the Court. Order 8 of Writ shall not be necessary in addition to the signature of the Register or officer of the Court.
Order 3 Rule 6 of the Delta State High Court Rules is quite explicit on what is required for a valid Writ of Summons.
It states thus
“A writ of summons shall be issues by the Registrar or other officer of the Court empowered to issue summons on application. The application shall ordinarily be made in writing by the claimants solicitor by completing form 1 in the Appendix to these Rules: but the Registrar or other officer as aforesaid where the applicant for a writ of summons is illiterate or has no solicitor, may disperse with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared signed and issued.”
However in view of the current state of judicial decisions on this issue I resolve this issue in favour of the appellant. The law is settled that an originating process must be signed by the legal practitioner issuing it. See CA/B/337/2016.ALLANZA UCHE UGBOMAH V. OGBUESHI UZEM ALLANAH & 2 OTHERS (2018) LPELR – 44832 where this Court interpreted the same Delta State High Court Rules on this point.
Adumein, JCA in the said case had this to say in the case as follows:
The learned counsel for the respondent submitted strongly that neither Order 3 of the High Court of Delta State (Civil Procedure) Rules 2009 nor Form 1 in the schedule thereto – the form of writ of summons used in this case requires the counsel issuing or taking out the writ to sign it. Without any hesitation, I hold that this argument has no basis in law and logic. Although the Rules of the trial Court have not specifically provided that a writ of summons must be signed by the legal practitioner, who issues it or takes it out on behalfof a claimant, common sense dictates that writ of summons should be signed by the legal practitioner who issues it on behalf of his client.”
The above decision being a decision of this Court, having not been set aside by the Apex Court is binding on me. I therefore resolve this issue in favour of the Appellant.
There is therefore no basis for going ahead to resolve the other issues formulated in this appeal as the foundation of the action subject matter of this appeal has been dismantled.
This appeal has merit. The judgment of Delta State High Court delivered on 16/2/2012 is hereby set aside. In its place I hereby order that the case of the claimant is struck out. Cost of N60,000.00 is awarded in favour of the Appellant.
PHILOMENA MBUA EKPE, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, TUNDE OYEBAMIJI AWOTOYE, JCA.
I too resolve that this appeal has merit. The judgment of Delta State High Court delivered on 16/2/2012 is hereby set aside and the case of the claimant is struck out.
I abide by the order as to cost.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I agree with the decision of my learned brother, Tunde Oyebamiji Awotoye, JCA; that this appeal is meritorious and I also allow it.
I abide by all the orders in the leading judgment.
Appearances:
JONATHAN EKPERUSI For Appellant(s)
CHARLES OKOH For Respondent(s)
