UYINA v. UJI
(2021)LCN/15861(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, May 07, 2021
CA/MK/39/2019
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
JEROME TSEVENDE UYINA APPELANT(S)
And
CHIEF ANYEBE UJI (Trading Under The Name And Style Of Dolphin Complex Hotel) RESPONDENT(S)
RATIO
DISTINCTION BETWEEN A SUBSTANTIVE JURISDICTIONAL DEFECT AND A PROCEDURAL DEFECT
Going forward, I need to once more recall the authority of Heritage Bank Limited vs. Bentworth Fin. (Nig.) Ltd. (supra), pages 434 – 435, paras. D – F, wherein the revered Eko, J.S.C., made a fine distinction between a substantive jurisdictional defect and the procedural defect, as follows:
“Jurisdictional defect that renders the adjudication incompetent, ultra vires, null and void, is the substantive jurisdiction because such jurisdictional issue is extrinsic to the adjudication: Madukolu vs. Nkemdilim (1962) 2 SCNLR., 341. When want of substantive jurisdiction is raised, the issue is whether the jurisdiction vested statutorily in the Court allows it to adjudicate in the matter. That is why it is extrinsic. When, however, the issue is whether a process filed in the course of the proceeding or adjudication is an irregular process, having not been issued or filed in accordance with the prescribed process, the issue raised is whether the process can be countenanced and not whether the Court can ordinarily and competently assume jurisdiction and adjudicate in the matter accordingly. In most cases, procedural jurisdiction is secondary to the substantive jurisdiction. The distinction between the two lies in the fact that while procedural jurisdiction can be waived; substantive jurisdiction cannot be waived.
The law is further settled that a procedural defect must be raised at the earliest opportunity, before the party complaining takes any new step with respect to the matter. See the case of A.G., Kwara State vs. Adeyemo (2017) 1 NWLR Pt. 1546, pg. 210, 239-240, paras. G-A, where the apex Court reiterated the fact that:
“… There are two types of jurisdiction: 1. Jurisdiction as a matter of procedural law. 2. Jurisdiction as a matter of substantive law. A litigant may waive the former. For example, a litigant may submit to procedural jurisdiction of the Court where a writ of summons has been served outside without leave or the litigant waives compliance. …” PER JOMBO-OFO, J.C.A
WHETHER OR NOT COURT PROCESSES PREPARED AND FILED IN COURT BY A LEGAL PRACTITIONER MUST BE SIGNED BY THE LEGAL PRACTITIONER
More often than not, Courts are slow to visit the sins of counsel on their clients. In the case of Williams vs. Adold/Stamm (2017) 6 NWLR Pt. 1560, pg. 1 at pp. 8-9, the apex Court made it obvious that:
“A process prepared and filed in Court by a legal practitioner must be signed by the legal practitioner, … The grouse of the respondents appeared to be that, there was no mark beside either of the two names to identify which of them signed the process. … The Court was satisfied that, there was no doubt as to who signed the process and that he is a legal practitioner whose name is on the roll. The omission to place a tick beside the name of Chief Ladi Rotimi Williams SAN did not mislead the respondents or the Court as to who signed the process, and such omission could not invalidate it. Therefore, the applicant’s written address filed on 16/11/2015 was competent.”
What eventuates from the foregoing is that, failure to link the signature on the process, or tick the name of the particular counsel who prepared the Amended Statement of Claim, as has played out in the instant scenario, does not invalidate the process, and thus, not fatal to the jurisdiction of the trial Court. This is more so now that the Courts are shying away from technicalities and leaning strongly on substantial justice. The apex Court has held in a plethora of cases that justice can only be done, if the substance of the matter is examined as reliance on technicalities leads to injustice. See the case of Saleh vs. Monguno (2006) 7 S.C., Pt. 11, pg. 97 at 115 – 116, where the Supreme Court reiterated the age-long position of law as follows:
“Thus, in its resolve to construe statutes and rules of Court only for the ends of justice, this Court has articulated in a number of cases that, whenever a plaintiff establishes a wrong that has been inflicted on him by a defendant, he should be granted a remedy, in spite of defects and other inadequacies as to form and contents of the document by which he initiates and sets out his claim. This was eloquently demonstrated in the earlier case of Aliu Bello & 13 Ors. vs. Attorney-General of Oyo State. (1986) 5 NWLR Pt. 45, pg. 828. In that case, this Court per Oputa, J.S.C., at page 886 restated the principle thus:
“Law and all its technical rules ought to be but a hand maid of justice and legal inflexibility (which may be becoming of law) may, if strictly followed, only serve to render justice grotesque or even lead to outright injustice. The Court will not endure that, mere form or fiction of law introduced for the sake of justice, should work a wrong contrary to the real truth and substance of the case before it. …” PER JOMBO-OFO, J.C.A
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of the High Court of Benue State (hereinafter referred to as the lower/trial Court), presided over by Hon. Justice E. M. Kpojime, J., in suit No. MHC/187/2015 and delivered 30th October, 2018.
BRIEF FACTS LEADING TO THE APPEAL
By a writ of summons issued 31st August, 2015, the plaintiff before the lower Court who herein is the appellant had sought the following reliefs at paragraph 15 thereof, against the defendant herein the respondent:
a. An order directing the defendant to close the artificial holes and for perpetual injunction restraining him from creating artificial holes into the plaintiff’s compound.
b. An order of special damages in the sum of N416,860.00 only.
c. General, punitive and aggravated damages assessed at N5 Million only. (See pages 1 – 22 of the record of appeal).
Upon service of the Writ of Summons and the accompanying processes on the defendant, he responded by filling a Memorandum of Appearance dated 15th October, 2015 and an accompanying Statement of Defence/Counter Claim dated 29th October, 2015. Both processes were filed 29th October, 2015. In the counter claim, the defendant sought as follows at paragraph 7 against the plaintiff:
7. WHEREFORE, the counter claimant is worried and aggrieved and seeks the following reliefs against the “defendant” from the Honourable Court:
a. A DECLARATION that the counterclaimant is in lawful occupation of his land at North-Bank having acquired and developed same from the year 1981 and it is covered by a certificate of occupancy.
b. A DECLARATION that the suing of the counterclaimant by the plaintiff in the main suit and defendant herein amounts to malicious prosecution.
c. SPECIAL DAMAGES of five hundred thousand naira only as professional fees.
d. GENERAL DAMAGES of one billion naira only. (See pages 23 – 34 of the record of appeal).
In reaction to the defendant’s Statement of Defence/Counter Claim, the plaintiff filed a reply dated 18th November, 2015 and filed 19th November, 2015. (See pages 35 – 36 of the record of appeal).
Prior to the hearing of the suit, the plaintiff by way of a Motion on Notice No. MHC/4733M/16 dated 28th October, 2016 and filed 1st November, 2016, sought inter alia the leave of Court to amend his statement of claim, file additional witness statement on oath and other accompanying processes. (See pages 40 – 46 of the record of appeal). The said motion was heard and granted 3rd November, 2016, consequent upon which the plaintiff’s Amended Statement of Claim dated 28th October, 2016 and filed along with the motion on notice, was deemed properly filed and served.
Hearing commenced based on the Amended Statement of Claim, with the plaintiff fielding two witnesses to wit PW1 and PW2. The defendant/counter claimant entered his defence with three witnesses namely DW1, DW2 and DW3 testifying on his behalf. At the prompting of the defence, the trial Court was moved to the locus in quo after which the parties were ordered to file and serve their respective final written addresses.
In its considered judgment delivered 30th October, 2018, the learned trial Judge held inter alia:
On the whole, I find no merit in the counter-claim. It is hereby dismissed in its entirety.
In conclusion, the preliminary objection raised by the defence counsel on the competence of the amended statement of claim succeeds. Consequently, plaintiff’s suit no. MHC/187/2015 is hereby struck out. Should the Court however be wrong in this decision, on the merit, the plaintiff’s suit no. MHC/187/2015 succeeds. … (See pages 173 – 174 of the record of appeal).
Piqued by the decision of the learned trial Judge declining jurisdiction to entertain his suit, consequent upon the plaintiff’s Amended Statement of Claim which the Court held to be incompetent, the appellant took out a Notice of Appeal challenging the decision of the trial Court in that regard. The record of appeal was compiled and transmitted to this Court on 18th March, 2019.
In line with the rules and practice of this Court the respective parties filed and exchanged briefs of argument. The appellant’s brief dated and filed 12th April, 2019 and their reply brief dated and filed 10th March, 2020 are both settled by C. T. Mue, Esq. The respondent’s brief dated 25th October, 2019 and filed 1st November, 2019 was settled by J. A. Agbatar, Esq.
From the 2 (two) grounds of the Notice of Appeal, the appellant crafted the following 2 (two) issues as determinative of this appeal:
a. Whether having regard to the settled position of law, and the peculiar circumstances of this case, the defect in the Plaintiff’s Statement of Claim touched on the substantive jurisdiction of the Trial Court, even when the Defendant failed to raise same timeously and thereby, waived his right to so do. (Distilled from Ground 2 of the Appellant’s Grounds of Appeal).
b. Whether or not the non-tying of the signature on a Court process to particular counsel on the list of counsel affect the jurisdiction of the Court? (Distilled from Ground 1 of the Appellant’s Grounds of Appeal).
On the part of the respondent, they donated the following 3 issues as apt for determination of the appeal:
i. Whether a Court process which has been properly signed or not, is a fundamental issue which can invalidate the said process.
ii. Whether a Court can speculate as to whether or not a person who signed a Court process is a legal practitioner.
iii. Whether a Court is under a duty to adjudicate on an incompetent/invalid Statement of Claim. List of witnesses and documents, and statements on oath as in this Appeal.
I shall adopt and determine this appeal based on the 2 (two) issues as distilled above by the appellant, more so as they are aptly tied to the grounds of appeal.
ISSUE A
Whether having regard to the settled position of law, and the peculiar circumstances of this case, the defect in the Plaintiff’s Statement of Claim touched on the substantive jurisdiction of the Trial Court, even when the Defendant failed to raise same timeously and thereby, waived his right to so do.
The appellant out-rightly submits that a Statement of Claim like the appellant’s Amended Statement of Claim before the trial Court is not an originating process and as such a defect in it is a mere procedural irregularity which does not affect the substantive jurisdiction of the Court. Appellant went on to submit that where a party, like the respondent in the instant case, has taken steps to enable the Court and the adversary to come to the conclusion that such a party has condoned the defect, he is taken to have waived his right to subsequently raise same. See Heritage Bank Ltd. vs. Bentworth Fin. (Nig.) Ltd. (2018) 9 NWLR Pt. 1625, pg. 420 at 434, paras. B-C. Appellant further submitted that a defect in procedure must be raised at the earliest opportunity before the party complaining takes any further step with respect to the matter. See A.G., Kwara State vs. Adeyemo (2017) 1 NWLR Pt. 1546, pg. 210 at 239-240, paras. G-A. Appellant finally opined that, had the trial Court averted its mind to the issue of waiver as duly canvassed, it would have come to a different conclusion in the judgment. He urged on us to resolve the issue in favour of the appellant and against the respondent.
The respondent on the converse, referred the Court to the names of four respective counsel listed on the Amended Statement of Claim dated 28th October, “2017” (?) and submitted that there is no mark indicating who amongst the four signed the document. Respondent contended that paragraph 9 of the affidavit in support of the motion on notice vide which the Amended Statement of Claim was brought in, deposed therein that the said Amended Statement of Claim was prepared by one J. B. Ifer, Esq. (See page 42 of the record of appeal). Relying on the authority of Oyama vs. Agibe (2016) All FWLR Pt. 840, pg. 1272 at 1285 – 1286, per Otisi, J.C.A., the respondent went on to submit that the issue of whether the amended statement of claim and the accompanying processes are properly signed or not, is a jurisdictional and fundamental matter that cannot be waived or overlooked by the Court. That, the amendment to the statement of claim was done in a bid to cure a defective writ which was not signed by the plaintiff or his counsel and so cannot enjoy the benefit of Heritage Bank Ltd. vs. Bentworth Fin. (Nig.) Ltd. supra. Respondent quipped that the appellant has the option of filing a competent process before the lower Court as the matter was not dismissed; and that the defect is a fundamental one and not a mere procedural defect. See further, F.B.N. vs. Maiwada as reproduced in Ariyo vs. Abigor (2016) All FWLR Pt. 841, pg. 1776. Respondent urged a resolution of the issue in the respondent’s favour.
RESOLUTION OF ISSUE A
It is pertinent to state at the onset that the process under attack in this issue is, the plaintiff/appellant’s AMENDED STATEMENT OF CLAIM as opposed to the original Statement of Claim which is no longer valid or even the Originating process to wit the Writ of Summons.
The appellant’s Statement of Claim was amended pursuant to Motion on Notice No. MHC/4733M/2016, which said Motion was argued and granted 3rd November, 2016. (See pages 40 – 46 of the record of appeal). The said Amended Statement of Claim as it were, has the names of four counsel listed thereon with one signature appended on the right-hand side of the first-two names to wit: J. B. Ifer, Esq. and V. S. Asen, Esq.
In the very recent decision of this Court in Maina vs. EFCC (2020) 2 NWLR Pt. 1708, pg. 230 at 251-252, it was no doubt held per Abundaga, J.C.A., that:
“Where a Court process has affixed to it, the seal of the Legal Practitioner who prepared it in line with Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners 2007, it is otiose to tick the name of the counsel whose name is in the seal as the signatory on the document or process.”
Consequent upon the foregoing and on a careful perusal of the seal and stamp affixed on the appellant’s Motion upon which the Amended Statement of Claim was brought in as a process of the Court, it is clear that the said Stamp bears the name of “Ian Solomon” who in turn is listed as the 3rd counsel in the line-up of counsel on the said process. The impression thereby created is that “Ian Solomon” prepared the Amended Statement of Claim. Be that as it may, this position to my mind, would still not obliterate or dispense with the need to tick or tie the signature to the particular counsel who prepared the process, and as enunciated in the earlier decision of Oyama vs. Agibe (2015) LPELR-40600(CA). The need to tick or tie the signature or contraption remains indispensable, given the fact that most law firms operate in partnership of more than one counsel. In such circumstances of multiple partners or counsel as has played out in the instant case, the processes filed in Court by such firms cannot have the Seal and Stamp of each of those counsel in the firm. Rather, the process can only accommodate one NBA Seal and Stamp which invariably may not belong to the very counsel that prepared the said process. For a firm with only one counsel, the need to tick or tie signature to name of the counsel may not arise. However, in the case of multiple counsel in the firm, the need of specificity of the counsel who prepared such process, cannot be overemphasized. To this end, the needed identification will be met by way of ticking the name of the particular counsel that prepared the process. Furthermore, and in order to authenticate the process, the signature or contraption as it were of the said counsel must be appended on the process, in such a manner that the Court will not be left in doubt as to the owner of the signature. In order to achieve this clarity and avoid confusion, the signature of the particular counsel shall be linked to its owner. This mode of linkage has always been achieved by the age-long practice of ticking.
As it is in the instant case, the Court is still left to speculate as to who, between J. B. IFER, ESQ., V. S. ASEN, ESQ., and SOLOMON IAN, ESQ., specifically prepared and filed the process in Court, since the particular owner of the signature is not identifiable. Notwithstanding the Seal and Stamp affixed thereon, the process could have been signed by any of the first-two counsel, beside whom the signature is appended. What I have tried to say so far is that, the affixing of NBA Seal and Stamp alone, without proper identification of the particular counsel out of multiple counsel in a firm, who prepared and filed a process in Court, still leaves the Court to speculate. For proper identification therefore, and without prejudice to the affixing of the NBA Seal and Stamp, the counsel’s name ought to be ticked also.
Besides that, the apex Court in a plethora of authorities which include SLB. Consortium vs. NNPC (2014) 3-4 MJ.S.C., 145 at 146 – 151, Ratio 1 thereof, made it clear that all processes filed in Court are to be signed as follows:
“First, the signature of counsel which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of legal firm …”
See further the authorities of Citibank (Nig.) Ltd. vs. Titan Energy Ltd. (2018) LPELR-4464(CA); Nweke vs. FRN. (2018) LPELR-460033(CA); Daniel vs. INEC. & Ors. (2015) LPELR-24566(SC); Ewukoya vs. Tajudeen Buari (2016) LPELR-40492(CA) at 9 – 12 (D-B); Bank of Industries Ltd. vs. Awojugbagbe Light Industries Ltd. (2018) LPELR-43812(SC); Min. of Works & Transport, Adamawa State vs. Yakubu (2013) All FWLR (Pt. 694) 23, 27-28; and Bello vs. Adamu (2013) All FWLR (Pt. 671) 1582, 1881, Ratio 1.
It follows from the foregoing that either way, be it an originating process such as a Writ of Summons or any other process such as the Statement of Claim, once it is a process meant for use in Court, it is desirable that the signature of the specific Legal Practitioner who prepared same or that of the Claimant as the case may be, is appended thereon in order for such a process to attract validity. While a document devoid of the maker’s signature would be rendered invalid and of no consequence, a process like the Amended Statement of Claim which has an unidentifiable signature appended thereon, can only be said to be irregular. This is to say that, the Amended Statement of Claim such as the one in the instant case wherein three counsel, as already enumerated above are contending for one signature or contraption, cannot but be deemed to be irregular and voidable as opposed to being void.
Furthermore, a Statement of Claim, unlike a Writ of Summons and a Notice of Appeal, is not an Originating Process for which its defect will go to the root of the matter. Reliance is placed on the recent case of Heritage Bank Ltd. vs. Bentworth Fin. (Nig.) Limited (2018) 9 NWLR Pt. 1625, page 420 at 434, paras. B – C, wherein our noble Eko, J.S.C., brought home the fact that:
“Whether an irregularity renders a process void and not voidable depends on the type of irregularity. An irregularity affecting an originating process is a fundamental irregularity that goes to the roots. The Statement of Claim is not an originating proces …” (Underlining mine for emphasis).
Given the foregoing pronouncement in gold of the Supreme Court, it follows that the appellant’s Amended Statement of Claim which sole defect touches on who, out of four listed counsel signed same, ought not be viewed as a fundamental defect and so capable of rendering same void. There is a signature on the process no doubt, just that the Court cannot pin-point the particular counsel out of the four that signed same. Aside from the confusion of who out of the four counsel signed the process, there is nothing on record to suggest that any of them is not a legal practitioner as envisaged by Sections 2(1) and 4 of the Legal Practitioners Act, 1975. In other words, any of the four listed counsel is qualified to sign the process and indeed the same was signed by one of them. It is worthy of note that the accepted or adopted practice, is for the signature to sit on top of the name of the signatory and in the case of multiple or listed number of counsel as is obtainable in firms of legal practitioners, the ticking of the name of the particular signatory.
Going forward, I need to once more recall the authority of Heritage Bank Limited vs. Bentworth Fin. (Nig.) Ltd. (supra), pages 434 – 435, paras. D – F, wherein the revered Eko, J.S.C., made a fine distinction between a substantive jurisdictional defect and the procedural defect, as follows:
“Jurisdictional defect that renders the adjudication incompetent, ultra vires, null and void, is the substantive jurisdiction because such jurisdictional issue is extrinsic to the adjudication: Madukolu vs. Nkemdilim (1962) 2 SCNLR., 341. When want of substantive jurisdiction is raised, the issue is whether the jurisdiction vested statutorily in the Court allows it to adjudicate in the matter. That is why it is extrinsic. When, however, the issue is whether a process filed in the course of the proceeding or adjudication is an irregular process, having not been issued or filed in accordance with the prescribed process, the issue raised is whether the process can be countenanced and not whether the Court can ordinarily and competently assume jurisdiction and adjudicate in the matter accordingly. In most cases, procedural jurisdiction is secondary to the substantive jurisdiction. The distinction between the two lies in the fact that while procedural jurisdiction can be waived; substantive jurisdiction cannot be waived.
The law is further settled that a procedural defect must be raised at the earliest opportunity, before the party complaining takes any new step with respect to the matter. See the case of A.G., Kwara State vs. Adeyemo (2017) 1 NWLR Pt. 1546, pg. 210, 239-240, paras. G-A, where the apex Court reiterated the fact that:
“… There are two types of jurisdiction: 1. Jurisdiction as a matter of procedural law. 2. Jurisdiction as a matter of substantive law. A litigant may waive the former. For example, a litigant may submit to procedural jurisdiction of the Court where a writ of summons has been served outside without leave or the litigant waives compliance. …”
The conduct of the respondent herein, indeed leaves no one in doubt that he waived the defect in the Amended Statement of Claim. This is borne out of the fact that, when the appellant filed the Amended Statement of Claim, and also sought a deeming order of the Court to deem same as properly filed and served, the respondent did not raise any issue concerning the irregularity of the Amended Statement of Claim. The lower Court granted the application as made, thereby deeming the process irrespective of the defect on the face of it. The appellant opened and closed his case based on the Amended Statement of Claim, likewise the respondent. Thereafter, and on the application of the respondent, the lower Court went on a visit to the locus in quo with the parties before finally adjourning for filing and exchange of Written Addresses. It was then in the course of doing his written address, that the learned counsel for the respondent raised the issue of incompetence of the appellant’s Amended Statement of Claim. From every indication, the respondent has taken not just several but also far-reaching steps, for which the justice of the case will not allow him to now turn around to query the competence or otherwise of the Amended Statement of Claim. The respondent has obviously slept on his right and as such, should be allowed to continue with the sleep undisturbed. See once more the authority of Heritage Bank Ltd. (supra), wherein Eko, J.S.C., at pg. 434 – 435, paras. A-B went further to enjoin thus:
“The facts of this case, particularly on this objection, are that, in spite of the fact that the statement of claim was allegedly not signed by a non-legally qualified legal practitioner, but by a firm of legal practitioners, the appellant as defendant, condoned the defective process. They participated in this proceedings and evidence arising from the statement of claim was called after the statement of defence joining issues with the defective statement of claim was filed. Judgment of the trial Court, based on the evidence elicited from the statement of claim was delivered without objection. Even at the Court of Appeal, no issue was made of the alleged defective statement of claim. The appellant as the defendant had clearly condoned the defective statement of claim and waived his right to object to this defective process. The right of the defence to object to the irregularity ex facie the statement of claim is waivable right, being a private right.”
Being that the defect in the appellant’s Amended Statement of Claim is found to be merely a procedural defect which does not in any way affect the substance of the case, the said process shall be countenanced. The respondent in the circumstances of this case, cannot be allowed to take back with the left hand, what he had given by way of waiver with the right hand. Issue A is for the reasons set out above, resolved in favour of the appellant and against the respondent.
ISSUE B
Whether or not the non-tying of the signature on a Court process to particular counsel on the list of counsel affect the jurisdiction of the Court?
Appellant submits herein that failure to tie the signature on a Court process to a particular counsel is inconsequential and does not render the process incompetent. See the case of Williams vs. Adold/Stamm International (Nig.) Ltd. (2017) 6 NWLR Pt. 1560, pg. 1 at 8-9. Appellant submitted that, the failure of the appellant to tick the name of the counsel that signed the Amended Statement of Claim did not mislead the respondent or the Court as to who actually signed the processes, and such omission cannot invalidate the process. He urged on us to hold that the signature on the Amended Statement of Claim is that of Solomon Ian, Esq. as the NBA Stamp and Seal attached to the process is that of Solomon Ian, Esq. Appellant urged on us not to allow technicalities override the cause of justice, more significantly as both the respondent and the lower Court were not misled as to who actually signed the Amended Statement of Claim. He urged that we resolved the issue in appellant’s favour.
The respondent argued primarily herein that, the Court cannot descend from her glory into the realm of speculations and that it must resist such a dishonourable posture to speculate who actually signed the Amended Statement of Claim and all its accompanying processes of the plaintiff/appellant and on which stands his case. He relied on Spring Bank Plc. vs. Julius Babatunde (2012) All FWLR Pt. 609, pg. 1199, paras. G-H. Appellant finally canvassed that the trial Court rightly nullified the appellant’s Amended Statement of Claim thereby leaving nothing in the case of the said appellant upon which it could stand to exercise jurisdiction. Respondent urged a resolution of this issue in favour of the respondent as well as a dismissal of the appeal with attendant cost against the appellant.
RESOLUTION OF ISSUE B
This issue is of a narrow compass, bearing the already resolved issue A. As earlier resolved and given the particular circumstances of the case, the failure of the appellant to link or tie the signature on the Amended Statement of Claim to a particular counsel, has been held to be a mere procedural defect and irregularity which is overlooked. The Court is satisfied that the process was signed by one of the four counsel listed thereon, and as I noted, there is nothing to show that any of them is not a qualified legal practitioner, whose name is not on the Roll of Legal Practitioners kept at the Supreme Court. Thus, the process is voidable and not void, consequent upon which the irregularity is discountenanced in the interest of substantial justice. More often than not, Courts are slow to visit the sins of counsel on their clients. In the case of Williams vs. Adold/Stamm (2017) 6 NWLR Pt. 1560, pg. 1 at pp. 8-9, the apex Court made it obvious that:
“A process prepared and filed in Court by a legal practitioner must be signed by the legal practitioner, … The grouse of the respondents appeared to be that, there was no mark beside either of the two names to identify which of them signed the process. … The Court was satisfied that, there was no doubt as to who signed the process and that he is a legal practitioner whose name is on the roll. The omission to place a tick beside the name of Chief Ladi Rotimi Williams SAN did not mislead the respondents or the Court as to who signed the process, and such omission could not invalidate it. Therefore, the applicant’s written address filed on 16/11/2015 was competent.”
What eventuates from the foregoing is that, failure to link the signature on the process, or tick the name of the particular counsel who prepared the Amended Statement of Claim, as has played out in the instant scenario, does not invalidate the process, and thus, not fatal to the jurisdiction of the trial Court. This is more so now that the Courts are shying away from technicalities and leaning strongly on substantial justice. The apex Court has held in a plethora of cases that justice can only be done, if the substance of the matter is examined as reliance on technicalities leads to injustice. See the case of Saleh vs. Monguno (2006) 7 S.C., Pt. 11, pg. 97 at 115 – 116, where the Supreme Court reiterated the age-long position of law as follows:
“Thus, in its resolve to construe statutes and rules of Court only for the ends of justice, this Court has articulated in a number of cases that, whenever a plaintiff establishes a wrong that has been inflicted on him by a defendant, he should be granted a remedy, in spite of defects and other inadequacies as to form and contents of the document by which he initiates and sets out his claim. This was eloquently demonstrated in the earlier case of Aliu Bello & 13 Ors. vs. Attorney-General of Oyo State. (1986) 5 NWLR Pt. 45, pg. 828. In that case, this Court per Oputa, J.S.C., at page 886 restated the principle thus:
“Law and all its technical rules ought to be but a hand maid of justice and legal inflexibility (which may be becoming of law) may, if strictly followed, only serve to render justice grotesque or even lead to outright injustice. The Court will not endure that, mere form or fiction of law introduced for the sake of justice, should work a wrong contrary to the real truth and substance of the case before it. …”
Espousing the law further, the noble Karibi Whyte, J.S.C., at page 871, in the same Saleh vs. Monguno (supra) in lending his voice to the issue restated the principle more pointedly thus:
“I think it is erroneous to assume that the maxim ubi jus ibiremedium is only an English Common Law principle. It is a principle of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the Courts to provide a remedy whenever the plaintiff has established a right. The Court obviously cannot do otherwise. It is enjoined to eschew reliance on technicalities in the determination of disputes. See State vs. Gwonto & Ors. (1983) 1 SCNLR 142 @ 160. The substance of the action rather than the form should be the predominating consideration.”
See further, the cases of Fagunwa vs. Adibi (2004) 7 SC., Pt. 99, pg. 108; Duke vs. Akpabuyo Local Government (2005) 12 SC., Pt. 1, pg. 1 at 5 – 6; Broad Bank Nig. Ltd. vs. Alhaji Olayiwola & Sons Ltd. (2005) All FWLR Pt. 251, pg. 236 at 248; and Ikpala Estates Hotels Ltd. vs. National Electric Power Authority (2004) All FWLR Pt. 236, pg. 362(CA) at 381.
Premised on all of the above, the decision of the lower Court wherein it invalidated and declined jurisdiction to entertain the appellant’s claim on the grounds that the person who signed the Amended Statement of Claim is not identifiable and that it cannot be presumed that he is a legal practitioner, is unsupportable and thereby unsustainable. The question whether the non-tying of the signature on the appellant’s Amended Statement of Claim to a particular counsel on the list of counsel affects the jurisdiction of the Court, is thus answered in the negative. I am saying that the omission to so link or tie the signature to any of the names of the listed four counsel, is a procedural misnomer which has not touched on the substance of the action. Issue B is for this reason, resolved in favour of the appellant and against the respondent.
Having resolved the two issues formulated for determination of the appeal, in favour of the appellant and against the respondent, it follows that the appeal is imbued with merit. In the event, that part of the lower Court’s decision in suit No. MHC/187/2015, wherein it declined jurisdiction to adjudicate on the plaintiff/appellant’s Amended Statement of Claim, on the erroneous finding that it was incompetent because the signature thereon was not tied or linked to any of the four counsel listed therein, is hereby set aside.
The appeal in sum is allowed with cost assessed and fixed at N100,000.00 in favour of the appellant and against the respondent.
IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance, the draft copy of the lead judgment delivered by my learned brother, Hon. Justice C. Ifeoma Jombo-Ofo, J.C.A. I agree with the reasoning and conclusions reached in the lead judgment that the defect in the Appellant’s Amended Statement of Claim is merely a procedural defect which does not in any way affect the substance of the case, and that the said process shall be countenanced more so, since the Respondent in the circumstances of this case, cannot be allowed to take back with the left hand, what he had given by way of waiver with the right hand. ARIORI VS. ELEMO (1983) 1 SCNLR 1 PER IDIGBE, J.S.C. AT PAGE 22 refers. Accordingly, in the light of the foregoing, I also resolve this issue in favour of the Appellant.
On issue (b) the learned Counsel to the Appellant submitted that, failure of the Appellant to tick the name of the Counsel that signed the Amended Statement of Claim did not render the process incompetent. The Supreme Court had held in the case of GUARANTY TRUST BANK PLC VS. INNOSON NIGERIA LIMITED (2017) LPELR-42S68 (SC) PER EKO, J.S.C., PAGES 7-8, PARAS. D-C thus:
“It is trite that it is the seal or signature of the author on a document that authenticates the document. A legal document or process of Court must be settled or signed by either the Legal Practitioner of the choice of the litigant or the litigant himself. The disputed processes were purportedly settled or signed by a Legal Practitioner, whose identity is unknown. Where ex facie a Court process it is uncertain if the process was signed by the litigant or the Legal Practitioner representing him, the process is incompetent. Court processes must either be signed by the litigant himself or by the Legal Practitioner retained by him. A Court process that purports to be settled by a Legal Practitioner must, as a requirement of statute, have not only the signature of the Legal Practitioner but also his name clearly shown and indicating that the signature is his. The decision of this Court in SLB Construction Ltd. vs. NNPC (supra) and many others on Court processes prepared and filed by a Legal Practitioner clearly demonstrate that for the signature thereon appended to be valid, it must be traceable to a Legal Practitioner. The process must have the signature or mark of the Legal Practitioner either against his name, or over and above his name.”
From the above dictum of the learned Law Lord of the Apex Court, since in the instant case, the seal and signature of one of the Legal Practitioners who appeared for the Appellant can be found on the Amended Statement of Claim, I am in total agreement with my learned brother that while a document devoid of the maker’s signature would be rendered invalid and of no consequence, a process like the Amended Statement of Claim which has an unidentifiable signature appended thereon, can only be said to be irregular. This is to say that, the Amended Statement of Claim such as the one in the instant case wherein three Counsel, as already enumerated therein, have only one signature or contraption is deemed to be irregular and voidable as opposed to being void.
I further endorse the position taken by my learned brother that on the authority of Heritage Bank Ltd. vs. Bentworth Fin. (Nig.) Limited (2008) 9 NWLR (Pt. 1625) page 420 at 434, paras. B-C per Eko, J.S.C. who restated the position of the law that whether an irregularity renders a process void and not voidable depends on the type of irregularity and that an irregularity affecting an Originating Process which is a fundamental irregularity that goes to the roots. I agree also that, the Amended Statement of Claim not being an Originating Process and which sole defect touches on who, out of the four Counsel signed same, ought not be viewed as fundamentally defective so as to render same void. Furthermore, as was rightly observed by my noble brother, there is a signature on the process except that, it cannot be pin pointed by the Court as to who among the four learned Counsel to the Appellant, whose name appear on the process, signed the said Amended Statement of Claim.
Accordingly, since the non-ticking of the Counsel to the Appellant who signed the process is a procedural irregularity which does not go to the root/substantive jurisdiction of the lower Court and more particularly since the objection was not raised timeously, the Respondent had waived his right to complain of the irregularity. See Heritage Bank Ltd. vs. Bentworth Finance (Nig.) Ltd. (supra) at 434-435 paras. A-B; ably cited by my learned brother.
On the whole, I adopt the entire lead judgment of my learned brother in also holding that the Appeal is meritorious and hereby succeeds. The decision of the learned trial Judge delivered on the 30th October, 2018 in favour of the Respondent is hereby set aside. In consequence, the Plaintiff/Appellant’s Suit No. MHC/187/2015 is remitted to the Hon. Chief Judge of Benue State for reassignment to another Judge for hearing de novo. I also abide by the Order as to costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, C. IFEOMA JOMBO-OFO, J.C.A. and I am in complete agreement with the resolution of issues donated for determination.
There is a difference between an originating process and other process of Court, the originating process impacts on jurisdiction if it is defective but other processes affect procedural jurisdiction of the Court and can be waived as was the case in this appeal.
Failure to object to an irregular process timeously will obviously shut out any objection, see STATE V ONYEUKWU (2004) LPELR-3116(SC) wherein the apex Court held:
“It is settled law that any person who has acquiesced to an irregular procedure without objecting at the appropriate time has lost his right to complain on appeal.” Per MUSDAPHER, J.S.C. (of blessed memory).
Where as in this case, the Respondent, who consented or acquiesced to an irregular/wrong procedure, cannot complain of same thereafter as was done. The trial Court therefore erred. I also agree with other unassailable reasoning in the lead judgment to allow the appeal and abide by other orders made therein.
Appearances:
Daniel Agabi, Esq. with him, M. A. Uyina, Esq. For Appellant(s)
Aondoaver Lordzua, Esq. For Respondent(s)