UNITY BANK PLC v. KAY PLASTICS NIGERIA LIMITED & ANOR
(2018)LCN/11914(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/IL/94/2016
RATIO
JURISDICTION: THE POWER OF JURISDICTION
“The first issue that needs to be resolved in both appeal and cross-appeal is the validity of the process or processes by which the claim and counterclaim were commenced at the trial Court. The resolution of that issue may even render otiose all the other issues in the main appeal relating to the correctness or otherwise of the decision of the lower Court on the merits of the case the parties brought before it. This is so because of the settled position that if a Court lacks jurisdiction its decision, no matter how well conducted, is a nullity: Madukolu v. Nkemdilim (1962) SCNLR 341 @ 348 (Bairamian, J.S.C.).” PER BOLOUKUROMO MOSES UGO, J.C.A.
JURISDICTION: TO CHALLENGE A COURT’S JURISDICTION
“A challenge of Court’s jurisdiction can neither be stifled by procedural objections (Akegbejo v Ataga (1998)1 NWLR (PT. 534) 459 @ 466; Okoye v. NCFC Ltd. (1991) 6 NWLR (PT. 199) 501 @ 540-541) nor ignored or swept under the carpet under any other guise: Eze v. Attorney-General of Rivers State (2002) FWLR (PT 89) 1109 @ 1142 (Karibi-Whyte J.S.C.). For the same reason that the proceeding before he lower Court was a nullity, every other issue canvassed in the appeal also become academic and not worthy of a decision.” PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
UNITY BANK PLC
Appellant/Cross-Respondent – Appellant(s)
AND
1. KAY PLASTICS (NIG.) LTD
2. ALHAJI KOLAWOLE YUSUF
Respondent/Cross-Appellant – Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment):
This appeal and cross-appeal are against the judgment of M. A. Folayan J. of the High Court of Kwara State delivered on 10/1/2013. In that judgment Her Lordship dismissed on its merits appellant’s/cross-respondent’s claim against the respondents/cross-appellants and allowed in part the respondents/cross-appellants’ counterclaim against it.
The background facts of the case are that in 1990 and 1991 appellant/cross-respondent agreed with 1st respondent/cross-appellant to grant it (1st respondent/cross-appellant) banking facilities of N6.1 Million for importation and installation of a P.V.C. Film Production Plant Line in Ilorin. Later in 1993, 1st respondent applied for a revolving working capital facility of N5m, out of which appellant disbursed N3, 710, 594.00. Second respondent later guaranteed the debt of 1st respondent up to a limit of N23 million.
By its amended writ of summons issued on 10th April, 2003 under the now repealed Kwara State High Court (Civil Procedure) Rules 1989 (otherwise called the Uniform Procedure Rules) operative at that time, appellant/cross-respondent claimed jointly and severally against respondents/cross-appellants for the sum of N62,966,477.72 being its calculation of the cumulative amount of respondents/cross-appellants’ indebtedness to it from the various banking facilities it afforded 1st respondent and guaranteed by 2nd respondent.
It is of great interest and a major issue in this appeal that the Writ of Summons with which appellant commenced its action was prepared and signed by a firm of solicitors called Uwakwe Abugu & Co. rather than by a Legal Practitioner called to the Bar. The same Uwakwe Abugu & Co. also signed its original statement of claim as counsel to plaintiff.
The respondents/cross-appellants filed a Memorandum of Appearance and followed up with a defence as well as counterclaim against appellant/cross-respondent for various sums of money totaling N130,408, 100.00. It brought in its defence and counterclaim through a motion on notice filed and dated 13th January, 2005 after getting the order of the lower Court extending time for them to file both processes and to deem the two processes as properly filed.
Like appellant/cross-respondent, all respondents/cross-appellants said processes including even its motion on notice were also not signed by a solicitor. If anything their situation even seems to be worse as their said processes, motion included, were simply signed by an undisclosed person or entity for (PP) a firm of solicitors called ‘Kayode Olatoke & Co.’
Appellant responded with Reply again signed by Uwakwe Abugu & Co. It later amended all its aforementioned processes including the writ of summons. Whereas Uwakwe Abugu Esq., who from the records appeared before the lower Court in person as a lawyer on several occasions to prosecute appellant/cross-respondent’s claim signed this amended writ of summons, the same Uwakwe Abugu & Co., of the earlier processes signed all other amended processes of appellant/cross-respondent again.
In her judgment of 10/01/2013, Folayan J., after overruling respondents/cross-appellants’ objection to the validity of appellant/cross-respondent?s action on the grounds that its writ was not signed by a legal practitioner but by Uwakwe Abugu and Co., and so invalid, dismissed appellant/respondent’s case in its entirety on the merits but granted the respondents/cross-appellants’ counterclaim in part.
Dissatisfied with that judgment, appellant, Unity Bank Plc, filed its Notice and Grounds of appeal against it on 11/1/13. One of its major complaints is the validity of the counterclaim of the defendants/counter-claimants/respondents/cross-appellants upon which Folayan J., entered judgment. It is of the view that the said counterclaim having not been signed by a Legal Practitioner was incompetent so judgment could not be properly entered on it.
The defendants/counterclaimants are also not satisfied with the decision of Her Lordship overruling their objection to the validity of appellant/cross-respondent’s action on the same ground of the writ not being signed by a Legal Practitioner and have cross-appealed against that part of the judgment by a Notice and Grounds of Appeal dated and filed on 08/04/2013.
Appellant in its amended brief of argument filed and adopted by Mr. Teju Adigun distilled the following issues for determination:
1. Whether or not the lower Court’s finding on the appellant’s claim for N62, 966, 477, 72 was perverse and liable to be set aside.
2. Whether or not the respondent’s counterclaim was statute barred.
3. Whether or not respondents are entitled to the monetary claims and cost granted by the lower Court.
4. Whether the lower Court had jurisdiction to entertain the respondents? counterclaim when same was originally signed in the name of the Kayode Olatoke and Co., and not by any named legal practitioner.
Respondents/cross-appellants responded to the appeal of appellant Unity Bank Plc with a brief of argument filed and adopted at the hearing by Oludare Akanbi Esq. There, appellant, after pointing out what they described as ‘certain preliminarily issues’ including the fact that in their view appellant did not appeal against a crucial finding of the lower Court and no issue was formulated from some grounds of appeal so those grounds (2, 7, 8 and 10) were deemed abandoned, formulated similar four issues as follows:
1. Whether the trial Court was not right when it dismissed the appellant’s claim on the ground that same was not proved.
2. Whether or not the respondent’s counterclaim were statute barred.
3. Whether or not respondents are entitled to the monetary claim and cost granted by the lower Court.
4. Whether the trial Court had jurisdiction to entertain the respondents? counterclaim.
They, defendants/respondents, as cross-appellants then filed and adopted a separate brief of argument in respect of their cross-appeal and formulated the following sole issue:
Whether the learned trial judge was right when he held that the writ of summons and statement of claim of the claimant (now cross-respondent) signed in the name of Uwakwe Abugu & Co. is competent, the contents of same having been amended.
Claimant/appellant (Unity Bank Plc) it should be noted elected not to respond to the cross-appeal attacking the very foundation of its action on which its appeal is anchored. That prompted Mr. Oludare Akanbi for cross-appellant to submit during the hearing of the appeal on 30/05/2018 that claimant/appellant had conceded the cross-appeal. Mr. Adigun for Unity Bank Plc. had no response to even that submission.
Arguments
Arguing issue 1 of its appeal, appellant (Unity bank Plc) through its counsel Mr. Adigun first took on the finding of Folayan J., that it wrongly computed the interest and charges on a revolving loan of N5 Million instead of the correct amount of N3.7m and that rendered the total amount of N62,966,477.72 claimed by it incorrect and unreliable. Counsel argued that appellant clearly pleaded, and it was testified to by PW3, that though although ?5m was approved as warehouse facility, only N3, 710, 594.00 was disbursed to and utilized by 1st respondent so there was no basis for His Lordship’s finding that it wrongly computed the interest and charges it claimed on N5m instead of N3.7m that was disbursed to 1st respondent. Miscarriage of justice, counsel thus argued, was occasioned by Her Lordship’s finding which deserves our intervention. A customer’s indebtedness to its bank is usually proved by statements of accounts, counsel argued, and this, appellant, he said, did by tendering Exhibits 35 – 38 all of which are 1st respondent’s statements of accounts.
PW3, counsel also argued, testified to how these statements of accounts arose from the facilities it granted 1st respondent yet counsel to 1st respondent did not controvert them either in cross-examination or final address. He thus submitted that appellant sufficiently proved its claim of N62,966,477.72 and the lower wrong in finding otherwise so we should resolve this issue in its favour.
All other arguments of appellant (Unity Bank Plc) were directed at the partial grant of the counterclaim of respondents by the lower Court.
On issue 2, it (Unity Bank Plc) argued that respondents’ counterclaim was brought after six years of the date cause of action accrued to respondents so it was barred by the Limitation Law of Kwara State and the lower Court wrong in rejecting its contention to that effect. Its counsel Mr. Adigun went through each head of the counterclaim in arriving at the said conclusion. The claim of N4,536,100 for counterpart funding according to it accrued with the commissioning of the PVC Plant in issue in 1992 and so respondents’ 6-year period to sue on it lapsed in 1998. Two Million Naira (N2m) general damages claimed by respondents for the takeover of the same Plant by its said appointment of the Consultant/Manager also ran from 1/4/1993 when he was appointed and 30/09/94 when the 18 months agreed by parties for him to run the Plant ended, but respondents went to sleep until 2007, it argued. The same thing it said applied to the claims for counterpart funding which also took effect from the commissioning of the Plant in 1/4/93 and ought to have ended on 30/9/94. It asked us to resolve this issue in its favour and hold the counterclaim statute barred.
On issue 3, the Bank argued that respondents did not lead any credible evidence to support their monetary counterclaims for which the trial judge granted them N4,536,100 for counterpart funding, general damages of N2m and costs of N100, 000. It argued that not only were respondents’ pleadings inconsistent with respect to counterpart funding, there was also material conflict in the documents they relied on to support their claim. Apart from Exhibits D6 and D14, it argued, respondents did not produce any shred of evidence in support of their claim of N4,536,100. The lower Court’s decision to award respondent’s general damages, it argued, was also erroneous.
A party claiming damages must lead evidence in proof of such damage, it submitted citing U.B.A. Plc v. Iboro (2009) LPELR- 8383 (CA).
It argued that the award of N100,000 cost by the lower Court in favour of respondents was without basis, that the Court does not make a habit of granting what a party did not ask. It finally asked us to reverse the decision of the lower Court in granting the claims of for counterpart funding, general damages and the award of N100,000.00.
On issue 4, it was argued by appellant that the judgment of the lower Court on the counterclaim was given without jurisdiction and liable to be set aside. It anchored this submission on the fact that the counterclaim itself and the motion on notice that brought it into the proceeding were all signed by Kayode Olatoke & Co. instead of a Legal Practitioner called to the Bar within the meaning of Section 2(1) of the Legal Practitioners Act. That omission, it argued, is fundamental, renders the counterclaim invalid, is incapable of being cured by an amendment and denies the Court of jurisdiction to hear it. For these, we were referred to a number of cases including Okafor v. Nweke (2007) 10 NWLR (PT 1043) 521 (S.C.); Guaranty Trust Bank Plc v. Innoson (Nig.) Ltd (2017) LPELR-42368 (SC); Bukola v. Oshundahunsi (2012) LPELR-8546 (CA); Nigerian Army v. Samuel (2013) 14 NWLR (PT. 1375) 466 @ 483; Ministry of Works & Transport, Adamawa State v. Yakubu (2013) 6 NWLR (PT. 1351) 481 @ 496 (SC).
It was submitted by counsel on behalf of the Bank that the counterclaim is respondents’ ‘originating’ or ‘initiating’ process against it because a counterclaim is a separate and independent action. A Court cannot adjudicate on an incompetent and therefore invalid process like the counterclaim of the respondents, it was submitted by Mr. Adigun relying on Ikpeazu v. Ekeagbara (2016) LPELR-40847(CA) p. 22-24; Ogunmola v. Kida (2006) 13 NWLR (PT. 997) 377 S.C. Counsel stressed that a counterclaim collapses if the writ of summons in the action is incompetent.
Mr. Adigun for appellant later submitted to us as additional authorities the decisions of this Court in the cases of Aberuagba & Anor v. Oyekan & Ors (2018) LPELR-43669 particularly the dicta of Barka and Owoade JJ.C.A and Integrated Merchants Ltd v. Osun state Government & Anor. (2011) LPELR-8803 (CA) p. 9, (Adumein, JCA). Counsel urged us to resolve this issue too against respondents and set aside the judgment of the lower Court granting their counterclaim. Counsel finally prayed us to allow its appeal.
Responding in the order the four issues were argued by appellant Bank, Mr. Akanbi for respondents on issue 1 submitted that appellant failed woefully to prove the N62, 966, 477.72 debt it claimed from respondents so the lower court was right in dismissing its claim. Counsel argued that since respondents joined issues with appellant by asserting that the actual amount of money appellant released to 1st respondent was only N3,710,594 and not the N5,000,000.00 both parties initially agreed by the Equipment Lease Agreement it should advance 1st respondent and since evidence abound that it was actually N3,710, 594 that appellant released to 1st respondent, the onus was on it (appellant) as claimant to prove that it computed its said debt of N62,966,477.72 on interest and bank charges calculated on N3,710, 594 and not N5,000,000.00. That, counsel argued, it failed to prove and its case was properly dismissed.
Learned counsel citing Adebiyi v. Umar (2012) 9 NWLR (PT. 1305) 275 @ 302 and Wema Bank Plc v. Osilaru (2008) 10 NWLR (PT. 1094) 150 @ 179 (CA) and Habib Nig. Bank Ltd v. Gifts Unique Nig. Ltd (2008) 10 NWLR (PT 1094) 150 @ 179 argued that merely tendering or dumping on the Court statements of accounts as appellant did was not enough, that the Court cannot turn itself to appellant’s Lord Advocate or an investigating body and do the math for it.
On issue 2, of whether the cause of action in the counterclaim was statute barred having been purportedly commenced after six years of the alleged breach of contract, respondents through their counsel argued that the cause of action in respect of the counterclaim was a continuous one as long as appellant and its consultant managers were using the equipment for the plant from 1991 till 2001; that at best cause of action arose in 2002 when appellant caused her solicitors to write Exhibit 40 demanding for payment of the amount it claimed respondents were owing it from the said equipment lease agreement. The cause of action, counsel submitted, in fact finally arose when appellant filed this action in 2003 thereby evincing its intention not to be bound by its agreements with respondents. Citing Iyizoba, JCA, in Adesina v. Ojo (2012) 10 NWLR (PT. 1309) 552 @ 569, counsel argued that cause of action cannot exist where nothing has happened to entitle a plaintiff to some relief or to sue someone.
So long as appellant was holding over the plant with a promise to efficiently service the debt but neither handed the plant nor serviced the debt, a fresh cause of arose, he submitted. For what constitutes continuing cause of action counsel referred us to S.P.D.C.N. Ltd v. Amadi (2010) 3 NWLR (PT. 1210) 82 @ 123 and C.B.N. v. Amao (2010) 15 NWLR (PT. 1219) 271 @ 296 para B-D. (S.C).
The claim of general damages, counsel submitted, cannot be statute barred as it is contingent on the injury suffered by respondent as a result of the breach of contract between the parties, for which counsel cited N.M.A. v. MMA (2010) 4 NWLR (PT. 1185) 613 @ 650. Counsel urged us to resolve this issue against appellant.
On issue 3, respondents submitted that they proved their claims of N4,536,100.00.00, general damages of N2Million and costs of N100,000.00 the lower Court awarded them.
In respect of the sum of N4,536,100.00.00 they said they gave in their pleadings and Exhibit D14 a breakdown of that sum as representing their total investment in their Equipment Lease Agreement with appellant which was breached by it. Exhibit D14, they asserted, is the assessment appellant asked them to make when it was contemplating selling the PVC Plant that was the subject of their agreement.
Exhibit D14 they said was sent to appellant but it did not dispute nor protest the quotation, not even in its pleadings or through evidence of its witnesses. There is also no conflict between paragraphs 43 and 53 of their defence or their Exhibits D6 and D14, they argued. They submitted that they need not show any receipt to back up their expenditure on those items nor prove that they were pre-agreed between them and appellant, that once they are able to show that they expended such amounts on the plant that was mismanaged by the appellant, they are entitled to their expenses, they submitted. Proof of special damages, they argued, means no more than giving calculable assessment of the claim and means giving the other party access to the facts upon which the calculation is based.
Respondents argued, too, that the lower Court was also right in awarding them general damages since they proved breach of contract by appellant. They submitted that 1st respondent would have made profit from the plant if appellant had allowed it to manage it, which position they argued the Court is empowered to put them back by award of special damages. U.B.A. Plc v. BTL Ind. Ltd (2006) 19 NWLR (PT. 1013) 61 @ 143; Omega Bank Nig. Plc v. O.B.C. Ltd (2005) 8 NWLR (PT. 928) 547 @ 578, Johnson Wax (Nig.) Ltd v. Sanni (2010) 3 NWLR (PT. 1181) 235 @ 251 were cited by respondents to buttress this point.
On the cost of N100,000.00 awarded them by the trial judge, they submitted that given the provisions of Order 55 R. 1 of the Rules of High Court of Kwara State 2005 enjoining the Court to indemnify the party who is in the right for his expenses and also taking into account the fact that the case dragged on for ten years in the trial Court, costs of ?100,000.00 was reasonable so we should not interfere.
On issue four concerning their counterclaim and the motion for the order deeming it, all of which were signed by Kayode Olatoke & Co., respondents argued that there is a distinction between signing an originating process in the name of a law firm and doing so in respect of a process that does not originate the action the latter of which they submitted a counterclaim belongs. They argued that whereas the former is fundamental and goes to the root of the action and automatically invalidates the proceeding, the latter is mere irregularity and does not invalidate. For this they strongly relied on what they described as an unreported decision of the Supreme Court of 23rd February, 2018 in SC/175/2005 in Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd. They cited the case in their brief of argument but their counsel only produced to us after argument an incomplete version of what purports to be the judgment of the Supreme Court containing only a lead judgment credited to Ejembi Eko, JSC. They argued that the process being challenged by appellant is a ?statement of defence? which by the decision in Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd is not an originating process so the issue of its signing by the law firm of Kayode Olatoke & Co. should be treated as mere irregularity.
Counsel on their behalf argued, too, that appellant did not raise its said complaint of the ”irregularity” of the statement of defence/counterclaim upon its service on it but rather filed a reply and even cross-examined on it so it is too late for it to complain now as it is deemed to have waived the said ”irregularity”.
Assuming, but without conceding that the irregularity is even fatal, counsel further argued, appellant’s remedy lies in the provisions of Order 4 R. 2(1) and (2) of the Rules of the trial Court, which enjoins it to apply by motion on notice or summons within reasonable time, and before it takes further steps in the proceedings, to set aside the said process. Appellant having failed to comply with that procedure, they argued, it cannot be heard now and the cases it cited are of no avail. Counsel cited a number of cases on this point including an earlier unreported decision of this Court of 22/07/2011 in Appeal No. CA/IL/ 21/29(?) between the parties herein, Unity Bank Plc v. Kay Plastics Nig. Ltd & Anor, and urged us to resolve this issue too against appellant and dismiss its appeal with heavy costs.
In reply, Mr. Adigun for appellant argued that appellant’s challenge to the validity of the counterclaim is one that touches the jurisdiction of the Court and so capable of being raised at any time; that it can never be too late to raise it as any proceeding conducted without jurisdiction is a nullity: for which he cited Agbiti v. Nigerian Navy (2011) 4 NWLR (PT. 1236) 175 (SC) among other cases. A counterclaim is a separate and independent action so it is the originating process in itself and its signing by Kayode Olatoke & Co. invalidated it, Mr. Adigun countered.
On respondents’ contention that improper signing of the counterclaim by Kayode Olatoke & Co. is mere irregularity which is deemed waived, and is waived by respondents having not challenged the counterclaim within reasonable time in line with Order 4 Rule 2 of the Rules of the lower Court, Mr. Adigun relying on the decisions of the Supreme Court in SLB Consortium Ltd v. NNPC (2011) 9 NWLR (PT. 1252) 317 and FBN Ltd v. Maiwada (2013) 5 NWLR (PT 1348) 444 submitted that the failure of respondents to comply with substantive provisions of Sections 2(1) and 24 of the Legal Practitioners Act cannot be mere irregularity neither can they be supplanted by rules of Court.
On the unreported decision of the Supreme Court in Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd which formed the backbone of respondents’ bid to sustain their counterclaim, Mr. Adigun cautioned us to exercise extreme restraint in placing reliance on an unreported decision which is not also placed before us. Counsel went on to submit that the said decision does not even avail respondents as the document in issue there was a statement of claim and not counterclaim as in this case.
To that extent, he argued, the relevant authority is FBN Ltd v. Maiwada (2013) 5 NWLR (PT. 1348) 444 which was incidentally a decision of the full Court of the Supreme Court, as opposed to a regular 5-man Panel of the Court that decided Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd, he pointed out. A decision of the full panel of a Court can only be overruled by another full panel of that Court and not by a regular panel, counsel submitted citing Yonwuren v. Modern Signs (1985) 1 NWLR (PT. 2) 244; Osafile v. Odi (1985) 1 NWLR (PT. 1) 17; Bogoro Local Government Council v. Kyauta & Ors (2017) LPELR-43296 (CA).
Argument of the Cross-Appeal
The cross-appellants’ argument of their sole issue of Whether the learned trial judge was right when he held that the writ of summons and statement of claim of the claimant (now cross-respondent) signed in the name of Uwakwe Abugu & Co. is competent, the contents of same having been amended? ran along the same lines with those canvassed by appellant against the counterclaim in the main appeal. The pith of their argument is that the entity called Uwakwe Abugu & Co. that signed plaintiff/appellant/cross-respondent’s writ of summons is not a Legal Practitioner within the meaning of Sections 2(1) and 24 of the Legal Practitioners Act so it is incompetent and left the Court without jurisdiction to entertain it and wrong in its decision overruling their contention to that effect. They stressed that being an incompetent process the purported amendment by the lower Court is also invalid and incapable of curing it, contrary to Her Lordship’s reasoning, neither is it one that can be cured by rules of Court.
For these submissions they cited basically the same cases cited by appellant in their argument against the counterclaim and urged us to uphold their cross-appeal and strike out the claims of the cross-respondent in their entirety.
As earlier pointed out, Unity Bank Plc did not respond to the cross-appeal. Even more noteworthy, its counsel Mr. Adigun had no answer to the submission of Mr. Akanbi for cross-appellant, during argument of the appeal on 30/05/2018, that its failure to respond to the cross-appeal meant it had conceded to it.
Resolution of issues
The first issue that needs to be resolved in both appeal and cross-appeal is the validity of the process or processes by which the claim and counterclaim were commenced at the trial Court. The resolution of that issue may even render otiose all the other issues in the main appeal relating to the correctness or otherwise of the decision of the lower Court on the merits of the case the parties brought before it. This is so because of the settled position that if a Court lacks jurisdiction its decision, no matter how well conducted, is a nullity: Madukolu v. Nkemdilim (1962) SCNLR 341 @ 348 (Bairamian, J.S.C.).
My Lords, permit me, therefore, to adopt an unconventional approach here by starting with the cross-appeal targeted at the main claim instead of beginning from the main appeal. I do so for two reasons: (1) the cross-appeal challenges the validity of the main claim and the jurisdiction of the lower Court over it, and (2) the invalidity of the originating summons may have a direct bearing on whether respondent/cross-appellant’s counterclaim, which is only attacked in the main appeal, can survive without it. I thought I should first deal with the big masquerade, regardless of where it may be found, before coming to the smaller one. So I start with the cross-appeal.
The cross-appeal
The issue of lack of jurisdiction in the lower Court which is raised in both the main appeal and cross-appeal is founded on the manner the writ of summons and the counterclaim, including the motion by which time was extended to deem it filed, were signed not by Legal Practitioners but by the law firm of Uwakwe Abugu & Co. in respect of the writ of summons and original statement of claim, and by Kayode Olatoke & Co. in respect of the said motion on notice dated and filed on 13/5/2005 and its counterclaim both of which span pages 98 – 111 of the records of appeal.
It is now well settled in our jurisprudence that only Legal Practitioners called to the Bar as stated in Sections 2(1) and 24 of the Legal Practitioners Act, and not law firms, can sign legal processes including originating process. This position is so well entrenched in our jurisprudence that it is no longer open to disputation. The cases of Okafor v. Nweke (2007) 10 NWLR (PT. 1043) 521 (S.C.); Guaranty Trust Bank Plc v. Innoson (Nig.) Ltd (2017) LPELR-42368 (SC); Bukola v. Oshundahunsi (2012) LPELR-8546 (CA); Nigerian Army v. Samuel (2013) 14 NWLR (PT. 1375) 466 @ 483; Ministry of Works & Transport, Adamawa State v. Yakubu (2013) 6 NWLR (PT. 1351) 481 @ 496 (SC); SLB Consortium Ltd v. NNPC (2011) 9 NWLR (PT. 1252) 317 and FBN Ltd v. Maiwada (2013) 5 NWLR (PT. 1348) 444 cited by both parties establish that point beyond doubt.
I guess that also was the reason behind the claimant/appellant/cross-respondent’s well informed and commendable decision not to contest defendants’/respondents’/cross-appellants’ attack on the validity of its writ of summons, nay its claim, despite the fact that the trial judge ruled in its favour when cross-appellant raised that same point in their address before that Court. An incompetent processes, contrary to the reasoning of the lower Court, cannot be corrected or amended. Any purported amendment of such process is also invalid and amounts to waste of time. Incidentally, I had cause (in company and concurrence of my learned brothers Lokulo-Sodipe and Akinbami, JJ.C.A) to address this same issue comprehensively in my Unreported lead Judgment of 07/03/2016 in CA/EK/82/2016: Abiodun Akinyede & Anor v. Dr. Francis Akinyede.
So, Folayan J. was, with due respect, incorrect when she held in her judgment while overruling cross-appellant that:
”It would be recalled that there was an amendment granted by this Court to amend the original processes filed in 2003. The complaint here is on the originating process filed on 11th June 2003 (writ of summons) and 17th October, 2005 (statement of claim). There was an application granted for amendment and this complaint and objection is not on the amended statement of claim. An amended process supersedes the original which was amended and the process of this Court which brought hat amendment into being is still a valid decision of this Court which has not been challenged or reversed on appeal.”
In my aforementioned unreported judgment in Abiodun Akinyede & Anor v. Dr. Francis Akinyede, I referenced Order 5 Rule 1 of the old Ondo State High Court Rules stating that writ of summons shall be prepared by Legal Practitioner. Order 5 Rules 1 and 2 of the now repealed Kwara State High Court (Civil Procedure) Rules 1989 applicable in the lower Court in 2003 when appellant/cross-respondent filed its summon also states that it is the plaintiff’s solicitor or the Registrar of Court, if the plaintiff is illiterate or doesn’t have a solicitor, that shall prepare writ of summons. It reads:
Order 5.
R.1(1)
A writ of summons shall be issued by the Registrar, or other officer of the Court empowered to issue summons, on application.
(2) The application shall ordinarily be made in writing by the plaintiff?s solicitor by completing from 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 dispense 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.
Also worthy of note are the provisions of Order 5 Rule 1 of the 2005 Rules of the High Court of Kwara State stating that ”Originating process shall be prepared by a claimant or his Legal Practitioner.”
Uwakwe Abugu & Co. not being a solicitor or Legal Practitioner as defined by the Legal Practitioners Act cannot validly prepare let alone sign a writ of summons, consequently the writ it prepared and signed for appellant/cross-respondent is invalid and remained so regardless of the amendment the lower Court purports to have granted it. In the light of that, the cross-appeal has merit and is allowed.
And that takes me back to the main appeal.
The Main Appeal
And here my view is that there is no way the said counterclaim of defendants/respondents can survive the invalidity of the writ of summons. While it is true that a counterclaim is usually described as a separate and independent action, we must not fail to put that legal jingle in its proper con, just as Nnaemeka-Agu, JSC, in Ojibah v. Ojibah (1991) 5 NWLR (PT. 191) 296 also exhorted counsel and the Courts to be wary of ”deciding cases and issues on the established legal jingles and catch-phrases without fully asking one’s self how well they fit into the particular facts of the case.”
A counterclaim is an independent and separate action from the main claim only to the extent that it has a life independent of the plaintiff’s claim which the Rules of Court and the Forms made pursuant thereto require to be endorsed on writ of summons before issue. (See a Copy of Form 1 – the format of Writ of summons – contained at pages 202 – 204 of the 2005 Rules of the Kwara State High Court). The writ of summons which is a document in the name of the State or Officer of Court, usually the Registrar, summoning/commanding the defendant to appear to an action in the name of the plaintiff and which usually opens with the command ”You are hereby commanded that within ”. number of days you cause an appearance to be entered for you in an action at the suit of and in default of your so doing the claimant may proceed therein and judgment may be given in your absence?, is actually the only originating process for all actions required by the Rules of Court to be commenced by writ of summons.
What constitutes the claim of the claimant in the writ, which the defendant is at liberty to respond with a ”counterclaim”, is simply the endorsement close to the end of the writ. That endorsement is just one of several that the Rules and the Form stipulate be made on the summons before issue. That part of Form 1 at p. 203 of the Rules of the lower Court, incidentally occupying just a very little portion of it for that matter, reads thus:
Endorsement to be made on the writ before issue thereof.
The claimant’s claim is for, :
It is this endorsement of the claim on this portion of the writ of summons which the claimant also further particularizes and elaborates upon in his statement of claim that the defendant counterclaims to which counterclaim is properly described as independent and distinct action from the claim endorsed by the claimant, such that even if that claim is held statute barred, not prosecuted, withdrawn, struck out for failure to disclose cause of action, declared incompetent for any other reason or even fails on the merits for lack of proof, the counterclaim is not affected. It is in that sense and that sense alone that a counterclaim is an independent and separate action from the main action or claim and not that it is an originating process of its own as suggested by counsel or one hanging in the air, so to speak, without an originating process to support it.
A counterclaim, I repeat, draws life from the originating process (the writ of summons in this case) filed by the claimant and backed by the power of the State or officer of Court commanding the defendant to appear and contest the action or face the risk of having judgment entered against him in his absence. That being the case, any defect that affects the writ of summons and renders it invalid as in this case is bound to adversely affect every other thing founded on it including claim and counterclaim.
It has to be noted too that there are only four ways of originating an action, otherwise called originating processes, recognized by both the 1989 Rules of the High Court of Kwara State applicable at the time of the commencement of this action and the present 2005 Rules of that Court. These are:
1. Writ of summons,
2. Originating summons,
3. Originating motion, and
4. Petition.
Order 1 Rule 1 of the 1989 Rules as well as Order 2 Rule 1 of the present 2005 Civil Procedure Rules of the Kwara State High Court both of which are similarly subtitled ”Form and Commencement of Action” are in agreement on this with their also similarly-worded provision that reads:
Subject to the provisions of any enactment, civil proceedings may be begun by writ, originating summons, originating motion or petition, as hereinafter provided.
Every other process, including statement of claim, witness statements on oath and so forth required by the innovative ”frontloading” 2005 Rules of Court to accompany the originating processes aforementioned are simply what they are: mere accompaniments and not originating processes.
That much is further made clear by the following provisions of the 2005 Rules of the lower Court which are also duplicated in the Rules of all other High Courts in this country. First is Order 2 Rule 2 (2) which says:
R.2 (1) All civil proceedings commenced by writ shall be accompanied by :
(a) statement of claim.
(b) list of witnesses to be called at the trial,
(c) written statements on oath of the witnesses and,
(d) copies of every document to be relied on at the trial.
Order 27 R. 1 (1) then makes the distinction between originating proceses like Writs of Summons and their accompaniments even clearer by providing that:
O. 27 R.1(1) The claimant shall file his originating process and accompanying documents simultaneously for service on the defendant or if there are two or more defendants, on each defendant.
From this and the earlier analysis of the true nature of a counterclaim vis-a-vis the writ of summons, the incompetence of the writ of summons in his case undoubtedly affected the counterclaim filed by defendants/respondents pursuant to it. To argue the contrary is to assert the legal and logical impossibility of expecting something to stand on nothing.
Even going beyond all that is that the counterclaim in this case was, as earlier noted, brought into being through a motion on notice that was prepared and signed by an unknown and undisclosed person ”PP” (for) the same entity called Kayode Olatoke and Co. That same undisclosed person who may not even be a lawyer at all also signed respondents’ attached counterclaim for ”PP” (for) Kayode Olatoke and Co., which the lower Court deemed as properly filed. (See p. 98 -111 of the records again). That is the process Mr. Akanbi for respondents is defending as valid and having a life of its own and so capable of sustaining the judgment the lower Court entered in favour of respondents. My Lords, he does not have me with him. I am certain he is not correct.
The purported unreported decision of the Supreme Court of 23rd February, 2018 in SC/175/2005 in Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd cited by Akanbi does not also change anything. In the first place counsel only produced to us an incomplete copy of what purports to be the judgment of the Supreme Court. The said judgment, apparently downloaded from a website that goes by the name Nigeria Lawyer, only contains what purports to be the lead judgment of Ejembi Eko, JSC. There are no contributions from his Brother Justices Rhodes-Vivour, Peter-Odili, Ogunbiyi and Sanusi (JJ.S.C.) whose names also appear on its first page as having heard the appeal with Eko, J.S.C. Even more curiously, the said judgment is purportedly certified by one Bilikisu B. Musa who described herself as Registrar of the Supreme Court of Nigeria, even as the said document as said is downloaded from the Internet and not obtained from the Supreme Court where it was purportedly certified. That is not all, the certification is also done only at the last page alone, as opposed to the well noted procedure of the Supreme Court certifying every page of its judgments.
Mr. Adigun cautioned us to be wary of relying on an unreported judgment including the one in issue. I think he has a point. One even wonders why a judgment said to have been delivered by the Supreme Court since 23rd of February this year (2018) has not been officially reported by any of the several Official Law Reporting outlets, not even by Electronic Law Reporters like Law Pavilion and Legalpedia who are noted for prompt reporting of the decisions of not only Supreme Court but a good number of the decisions of this Court too.
But assuming that the said incomplete copy of Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd brandished by respondents is actually genuine (and it may well be), it must again be pointed out that the document in that case that was signed by a law firm instead of Legal Practitioner was not an originating process like we have here but just a statement of claim. In fact even in that case it was recognized at p.17 by Eko, JSC, that ”The law is settled as this Court pointed out in Braithwaite v. SkyeBank Plc (supra) at p.17; Nigerian Army v. Samuel (supra) at 486; Thomas v. Maude (2007) ALL FWLR (PT. 361) 1749; F.B.N. v. Uwada (respondent again curiously not omitted in the said document) (2002) 2 NWLR (PT 805) 485; an irregularity affecting an originating process is a fundamental irregularity that goes to the roots.”
That settles it, even as this Court (Barka and Owoade, J.C.A) had also held in Aberuagba & Anor v. Oyekan & Ors (2018) LPELR-43669 that a defect of this type affecting the originating process affects a counterclaim too.
On that note, I hereby also uphold issue 4 of the appeal and declare the judgment of the lower Court on respondent’s counterclaim also a nullity. The appeal of Unity Bank is therefore also allowed and, for avoidance of doubt, the said judgment of Folayan J. of 10/01/2013 is hereby set aside.
In so deciding, I am not unmindful of the preliminary issues raised by Mr. Akanbi regarding the issues framed by appellant or his other contention that a particular finding of the trial judge on the counterclaim was not appealed. Those arguments may have been valid if the issue here was not one of jurisdiction. If a Court lacks jurisdiction whatever happened before it and what it said in the trial is a nullity.
A challenge of Court’s jurisdiction can neither be stifled by procedural objections (Akegbejo v Ataga (1998)1 NWLR (PT. 534) 459 @ 466; Okoye v. NCFC Ltd. (1991) 6 NWLR (PT. 199) 501 @ 540-541) nor ignored or swept under the carpet under any other guise: Eze v. Attorney-General of Rivers State (2002) FWLR (PT 89) 1109 @ 1142 (Karibi-Whyte J.S.C.). For the same reason that the proceeding before he lower Court was a nullity, every other issue canvassed in the appeal also become academic and not worthy of a decision.
In the final analysis, both appeal and cross-appeal are allowed on grounds of the invalidity of the writ of summons and counterclaim and the proceedings of the lower Court including its judgment of 10/01/2013 is/are declared nullity and, for avoidance of doubt, set aside and the said case struck out from that Court.
Parties shall bear their costs.
CHIDI NWAOMA UWA, J.C.A.: I read before now the draft copy of the judgment of my learned brother, BOLOUKUROMO MOSES UGO, JCA. The issue of competence of the Appeal and cross-appeal were comprehensively looked into and resolved by his Lordship and I have nothing to add. I agree that the Appeal and Cross-Appeal are meritorious and I also allow same to the effect that the proceedings before the lower Court including the judgment is a nullity, same is set aside. I abide by the order awarding no costs in the leading judgment.
HAMMA AKAWU BARKA, J.C.A.: I was opportuned to have read in draft the judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO JCA. I fully endorse the resolution of the sole issue in the appeal, as well as the issue raised in the Cross Appeal. My Lord has brilliantly dealt with the arguments to my satisfaction. The judgment of the lower Court having been founded on a defective writ of summons, the entirety of the proceedings before it was a nullity. It is accordingly set aside by me and the case struck out being incompetent.
Appearances:
Teju Adigun Esq. with him, Grace Jogoh Esq. and Olatobera Oladeji Esq.- for Appellant/Cross-RespondentFor Appellant(s)
Oludare Akanbi Esq. with him, K. Aminu Esq. and O.J. David Esq.- for Respondent/Cross- AppellantFor Respondent(s)
