VF WORLDWIDE HOLDINGS LIMITED v. DANA SERVICES LIMITED
(2014)LCN/7511(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of November, 2014
CA/L/535/10
RATIO
PRACTICE AND PROCEDURE: PREPARING AND SIGNING ORIGINATING COURT PROCESSES; WHETHER IT IS ONLY A PRACTITIONER THAT CAN PREPARE AND SIGN ORIGINATING COURT PROCESSES
It is trite law that it is only a legal practitioner that can prepare and sign originating Court processes. Counsel referred the court to Order 6 Rule 2(3) of the High Court of Lagos State (Civil Procedure) Rules 2004 where it is required that processes should be signed by a person who is on the roll of legal Practitioners. See Legal Practitioners Act, Cap L11, LFN 2004 S. 2(1) and 24 and Okafor v. Nweke (2007) 10 NWLR Pt. 1043 pg. 521. per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: JURISDICTION; WHAT THE COURT IS ENTITLED TO CONSIDER WHERE THE JURISDICTION OF A COURT IS CHALLENGED
Where the jurisdiction of a court is challenged, the court is entitled under S.6 of the 1999 Constitution to consider the offending process to determine whether the originating process is competent to foist jurisdiction on the court. See Adeleke vs. SHA (2006) 16 NWLR pt. 1006 pg. 608, Egbebu vs. IGP (2006)5 NWLR Pt.972 pg. 146 where it was held that; “It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction, and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. See Umanah vs. Attah (2006) 17 NWLR Pt. 1009 pg 503, Madukolu v. Nkemdilim (1962) 1 All NLR Pg. 587, Skenconsult v. Ukay (1981) 1 SC pg. 6, Mogaji v. Matari (2000) 5 SC pg. 46, Alao v. ACB Limited (2000) 6 SC Pt. 1 pt 1 pg 27, Galadima vs. Tambai (2000) 6 SC Pt. 1 pg 196, Anaka v. Ejeagwu (2000) 12 SC Pt. 1 pg. 99.” per. UZO I. NDUKWE-ANYANWU, J.C.A.
PRACTICE AND PROCEDURE: ORIGINATING PROCESS; WHAT AN ORIGINATING MUST CONVEY
The Courts have held in many cases that an Originating process must convey:
(1) The signature of counsel which may be any contraption;
(2) The name of counsel clearly written as indication of authorship of the signature;
(3) The name of the person(s) counsel represents and;
(4) The name and address of the legal firm under which counsel practices as legal practitioner or solicitor/advocate of the Supreme Court of Nigeria.
All the requirements stipulated above must be present before the court process, so signed, would be authentic and beyond reproach. Any breach of the principles relating to signature is fundamental and it knocks the bottom off any suit, no matter how well couched and to any proceedings, no matter how well conducted. Aremu vs. Shinaba (2014) 8 NWLR Pt. 1408 pg. 63. The Nigeria Army vs. Samuel (2013) 14 NWLR pt. 1375 pg. 466, SLB Consortium vs. NNPC (2011) 9 NWLR PT. 1252 pg. 317, Alawiye v. Ogunsanya (2013) 5 NWLR Pt. 1348 pg.444 Braithwaite vs. Skye Bank Plc (2013) 5 NWLR Pt. 1346 pg. 1. per. UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
VF WORLDWIDE HOLDINGS LIMITED – Appellant(s)
AND
DANA SERVICES LIMITED – Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State sitting in Lagos delivered on 27th of January, 2010 dismissing the suit before it.
The facts of this case are as stated by the Appellant in this case. It is as follows:
3. “The Appellant (V”FS) was awarded a contract by the Government of the United Kingdom to provide technological support services in Lagos Nigeria. The agreement was entered on 29th November, 2005, with a provision allowing VFS was to franchise/subcontract or outsource its business for this purpose in Nigeria to a local service provider.
4. Earlier, in anticipation of the support service contract from the High Commission of the Government of the United Kingdom in Nigeria, VFS and the Respondent (“Dana”) entered into a Cooperation Agreement dated November 15th 2005 (“the Agreement”). By the terms of the Agreement, VFS agreed to license Dano as a service provider to make use of VFS’ relevant intellectual property rights and property in providing technological and logistics support services to the British High Commission in Nigeria. The Agreement between VFS and Dano was co-terminus with the contract awarded by the British High Commission to VFS. The implication, as mutually understood by both parties, was that if the British High Commission terminated its contract with VFS at any time, then the contract between VFS and Dona also stands terminated.
5. It was also agreed between the parties that in the event of any dispute, the parties were to resort to arbitration, which shall be governed by Nigerian Law. The Agreement was also to be governed by and interpreted under Nigerian Law. By a letter dated March 2nd 2007, the British High Commission informed Dana that effective from 15th April 2007,Dana would no longer act as a sub-contractor for the British High Commission in Nigeria. The letter further stated that due to new developments in its contractual arrangements with its commercial partners, the developments in its contractual arrangements with its commercial partners the British High Commission required VFS to take complete control of all functions relating to visa application services. By letter dated 3rd April 2007, the British High Commission terminated the Agreement with VFS effective from April 14th 2007.
6. Upon the receipt of notice of the termination of VFS’ contract with the British High Commission, the contract between VFS and Dana was automatically terminated in line with term of the Co-operate Agreement. Accordingly, VFS by its letter dated 6th April, 2007 issued Dana a notice of termination effective from April 13th 2007. VFS also invited Dana for negotiations on the respective obligations of both parties under the Agreement.
7. The negotiations between VFS and Dana were, however, truncated midway, as the parties were unable to agree on their respective obligations.
8. In breach of Clauses 35 and 36 of the Agreement that specified for arbitration.
Dana commenced action at the Federal High Court, Lagos in Suit No: FHC/L/CS/314/2007 against VS and its affiliate company,VFS Global Services PW Limited seeking declaratory and injunction reliefs against VFS for breach of the contract.
9. Dana obtained interim orders against VFS and VFS Global Services PW Limited in respect of the running of its business activities. The Federal High Court heard VFS’ motion of 23rd April, 2007 to vacate the interim order along with the Dana’s motion for interlocutory injunction dated 4th April, 2007.
10. On 30th May 2007, the Federal High Court in considering the facts as adduced by VFS in its motion of 23rd April, 2007 set aside the ex-parte order it had earlier granted and also refused Dana’s motion for interlocutory injunction. Dana consequently appealed the decision of the Federal High Court vacating the interim orders by its Notice of Appeal dated 13th June, 2007. Dana also filed a motion at the Federal High Court seeking an injunction pending the determination of its appeal.
11. Pursuant to its objection to the jurisdiction of the Federal High Court in its Statement of Defence, VFS filed a motion dated 10th July 2007 for the hearing and determination of its objection. The Federal High Court considered VFS motion of 10th July, 2007 along with Dana’s motion for injunction pending appeal and held that it had no jurisdiction to hear the suit and dismissed the suit.
12. Following the dismissal of its case by the Federal High Court, Dana served VFS with a Notice of Arbitration by its letter dated August 4, 2008. VFS in response to the Notice of Arbitration wrote to Dana stating its opposition the Arbitral proceedings.
13. VFS’ view was that arbitration was inconsistent with the legal positions of the parties. As such, it requested a judicial interpretation of the rights of the parties to arbitrate by the Originating Summons dated September 8th 2008.
14. In its judgment of January 27th 2011, the Lagos State High Court answered VFS Originating Summons’ questions in the negative and validated Dana’s right to revert to arbitration despite its breach of the agreement to arbitrate by commencing action at the Federal High Court. This judgment of the Lagos High Court is the trigger for this appeal.”
The Appellant filed its notice with two grounds of appeal. The Appellant also filed its Appellant’s Brief on 12th of June, 2012 but deemed properly filed and served on 7th of May, 2014. In it, the Appellant articulated 2 issues for determination as follows: –
“i. Having initiated judicial proceedings and obtained relief in the Federal High Court, has Dona not waived its right to revert to arbitration? (Distilled from Ground 1 of the Grounds of Appeal).
ii. In view of the Constitutional role of the Court of Appeal as the reviewing authority for the decisions of the Federal High Court, can the learned Trial Judge review the decision of the Federal High Court dismissing Dana’s case (Distilled from Grounds 2 of the Grounds of Appeal)”
Also filed was the Appellant’s Reply Brief on 24th of September, 2014 but deemed properly filed and served on 25th September, 2014.
In response to the Appellant’s brief, the Respondent filed its brief on 6th of June, 2014. In it the Respondent argued his Preliminary Objection filed.
In arguing his preliminary objection, the Counsel to the Respondent submitted that this appeal is incompetent as the Appellant’s originating summons was purportedly signed for and on behalf of Prof. Yemi Osinbajo SAN by an un-named person whose identity and status remain undisclosed on the Originating Court process.
It is trite law that it is only a legal practitioner that can prepare and sign originating Court processes. Counsel referred the court to Order 6 Rule 2(3) of the High Court of Lagos State (Civil Procedure) Rules 2004 where it is required that processes should be signed by a person who is on the roll of legal Practitioners. See Legal Practitioners Act, Cap L11, LFN 2004 S. 2(1) and 24 and Okafor v. Nweke (2007) 10 NWLR Pt. 1043 pg. 521.
Counsel submitted that the originating summons and the supporting written address were signed by an unnamed or unknown person whose name is not indicated or endorsed on the originating Court process. The originating summons was signed by an unknown person for and on behalf of Prof: Yemi Osinbajo, SAN of Simmons Cooper Partners. This Originating Court Process is therefore, incompetent and liable to be struck out. Counsel referred the court to the holding of the Supreme Court in Okafor vs. Nweke (supra).
“In conclusion I agree with the submission of learned Senior Advocate of Nigeria for the Respondents that the processes filed in this application particularly the Motion on Notice filed 19th of December, 2015, the proposed notice of cross appeal and applicant’s Brief of Argument in support of the said Motion on Notice are incompetent in that they were not issued by a Legal Practitioner known to law and are consequently struck out, with N1,000,00 cost in favour of the respondent.”
The preparation, signing and filling of the Originating Court process by an unnamed person for and on behalf of Prof. Yemi Osinbajo SAN renders the Originating Court Process in issue in this proceeding incompetent. See Sunday Adeleye vs. Disu Adekanmi Onoleye CA/L/266/2002 (unreported) delivered on 25th June, 2010 where Adamu Jauro JCA held as follows: –
“The proper thing to do where a counsel is signing a process for an on behalf of another, the counsel signing must indicate his name, immediately below the signature.
By indicating the name on the process, it establishes that the signatory is a legal practitioner whose name is on roll of practitioners and reduces the chances of abuse whereby clerks, messengers or watchman signing process on behalf of their principals. See Edet v. Chief of Air Staff (1994) 2 NWLR (Pt. 324) 41 at 65.
“(a) is the name of the signatory to the notice of appeal has not been disclosed, it cannot be ascertained whether the signatory is a legal practitioner or not. Consequent upon the foregoing, the notice of appeal dated 30th of May 1997 was neither signed by the 1st appellant nor a legal practitioner known to Law, hence incompetent.”
Counsel finally submitted that the originating Court process is the foundation upon which this appeal is predicated. It is incurably bad because it has not been signed in accordance with the law.
It is trite that one cannot put something on nothing and expect it to stand, it will fall. See Solanke vs. Somefun (1974) 1 SC pg. 141, Marfery vs. EBN vs. Halico (Nig) Ltd. (2006) 35 WRN pg. 75.
Counsel therefore urges the court to strike out the Appellant’s Originating Summons dated 8th September, 2008 and dismiss the appeal for being incompetent. See SCB Consortium Limited vs. NNPC (2011) 9 NWLR Pt. 1252 pg. 317 where the Supreme Court upheld a preliminary objection to the hearing of the appeal on the ground that the originating process by which the action was commenced at the trial court was incompetent. The Supreme Court upheld the objection and dismissed the appeal. Counsel urges the court to also dismiss this appeal. See also Uduma vs. Aranti (2012) 7 NWLR Pt. 1298 pg.55.
In response, the appellant’s counsel submitted that the Respondent voluntarily waived its right and would be stopped from challenging the Appellant’s originating Summons and written address dated 8th September, 2008 on grounds of signature/un-named person. Counsel stated that the law is that where a party entitled to a known right voluntarily surrenders same at his option when he could have raised it or insisted on it, such party is deemed to have waived his right. A waived right is a lost right. Learned counsel to the Appellant in response to the Respondents preliminary objection identified the following (3) legal points for the court’s determination;
i. Whether the Respondent’s objection is not a violation of the provision of Section 6(6) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
ii. whether the Respondent has not waived its right to object to or challenge the purported irregularity in the Originating Processes?
iii Whether the Respondent’s reliance on technicality should defeat the determination of the Appeal on the merit?
Counsel submitted that the Respondent’s argument is technical.
Counsel argued that the Respondent relied on S. 2(1) and 24 of the Legal practitioners Act, 2004 and case law in support of its argument in urging the court to dismiss this appeal.
Learned counsel argued that S.2 (1) & 24 of the Legal Practitioners Act cannot be interpreted or applied to oust, limit or circumscribe the operation of S.6(6)(b) of the 1999 Constitution. Counsel argued that this will be an infraction on access to justice guaranteed under the basic provision of S.6 (6)(b) of the 1999 Constitution.
Counsel continued that the Originating Process were signed by Miss. Osasu Egbobamien now Mrs. Osasu Edoigiaweme a former legal practitioner in Simmons Cooper Partners for and on behalf of another legal practitioner, Prof, Yemi Osinbajo SAN. Counsel argued that the Legal Practitioners Act was silent on when a legal practitioner signs a legal process for another legal practitioner.
Counsel went on to state that it is an elementary rule of statutory interpretation which requires words to be given their ordinary and single interpretation.
See Abubakar vs. A.G.F (2007) 3 NWLR Pt. 1022 pg. 636 where the Supreme Court held:
“In construing the provision of a statute where the words are clear and unambiguous, it is the words used that prevails and not what the court says the provisions means.”
See also Awuse v. Odili (2003) 18 NWLR Pt. 851 pg. 180.
“…Where a statute is clear and unambiguous, the Court in the exercise of its interpretative jurisdiction must stop where the statute stops. In other words, a court of law has no jurisdiction to rewrite a statute to suit the purpose of one of the parties or both parties. The moment a court of law intends to rewrite a statute or really rewrites a statute, the intention of the lawmakers is thrown overboard and the court changes places with the lawmaker. (See also: A.G. Abia State v. A.G. Federation (2005) 12 NWLR (Pt. 940) Pg. 452 at 503 and 516: I.M.B. vs. Tinubu (2007) 45 WRN 1 at 19 (SC).
Counsel therefore urged the court to discountenance the Respondent’s arguments in its Preliminary Objection. An originating process is a very important process. It is what foists jurisdiction on the court. The Respondent by a Preliminary objection has challenged the competency of the originating process in the court below.
Where the jurisdiction of a court is challenged, the court is entitled under S.6 of the 1999 Constitution to consider the offending process to determine whether the originating process is competent to foist jurisdiction on the court.
See Adeleke vs. SHA (2006) 16 NWLR pt. 1006 pg. 608, Egbebu vs. IGP (2006)5 NWLR Pt.972 pg. 146 where it was held that;
“It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction, and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. See Umanah vs. Attah (2006) 17 NWLR Pt. 1009 pg 503, Madukolu v. Nkemdilim (1962) 1 All NLR Pg. 587, Skenconsult v. Ukay (1981) 1 SC pg. 6, Mogaji v. Matari (2000) 5 SC pg. 46, Alao v. ACB Limited (2000) 6 SC Pt. 1 pt 1 pg 27, Galadima vs. Tambai (2000) 6 SC Pt. 1 pg 196, Anaka v. Ejeagwu (2000) 12 SC Pt. 1 pg. 99.”
The aspect that concerns us in this appeal is whether “the suit was initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.”
The Courts have held in many cases that an Originating process must convey:
(1) The signature of counsel which may be any contraption;
(2) The name of counsel clearly written as indication of authorship of the signature;
(3) The name of the person(s) counsel represents and;
(4) The name and address of the legal firm under which counsel practices as legal practitioner or solicitor/advocate of the Supreme Court of Nigeria.
All the requirements stipulated above must be present before the court process, so signed, would be authentic and beyond reproach. Any breach of the principles relating to signature is fundamental and it knocks the bottom off any suit, no matter how well couched and to any proceedings, no matter how well conducted. Aremu vs. Shinaba (2014) 8 NWLR Pt. 1408 pg. 63. The Nigeria Army vs. Samuel (2013) 14 NWLR pt. 1375 pg. 466, SLB Consortium vs. NNPC (2011) 9 NWLR PT. 1252 pg. 317, Alawiye v. Ogunsanya (2013) 5 NWLR Pt. 1348 pg.444 Braithwaite vs. Skye Bank Plc (2013) 5 NWLR Pt. 1346 pg. 1.
My learned Bro. Ikyegh JCA also held in Aremu vs. Shinaba (supra) that “In respect of a claimant, the signature and name together with the description of a claimant as the claimant in an action must be on the Originating Process to cloth it with validity.
It is wrong for an unknown/unidentified or undisclosed person to sign a process for or on behalf of a known person be it a legal practitioner or a claimant.”
The above says it all. The counsel to the Appellant in his reply is trying to give the name of the owner of the signature. This is medicine after death. The courts have in a plethora of cases held that only an identified legal practitioner can sign an originating process. Failure to do so renders the process incompetent.
Where an originating process is incompetent, the court lacks the necessary vires to adjudicate. The originating process in the suit in the court below was signed by an unknown person.
The learned counsel to the Appellant in his reply, had argued strenuously that the Respondent had waived his right to complain. I must quickly add that questions of jurisdiction is fundamental and cannot be waived by parties. A party cannot foist jurisdiction on the court where there is none.
It is only a properly signed and authenticated originating process that can foist jurisdiction on a court. A litigant can waive and submit to the procedural jurisdiction of the court for instance where a writ has been served outside jurisdiction without leave. Ndayako v. Dalono (2004) 13 NWLR Pt. 889 pg. 187. A litigant cannot foist jurisdiction on the court where there is none.
Appellant’s counsel also argued that the Respondent is estopped from raising the issue of jurisdiction as he had waived his rights in the lower court by acquiescence.
It is pertinent to say at this stage, that, it is important for a party who perceives that a court has no jurisdiction to hear a cause or matter, to raise the issue at the earliest opportunity Nnonye v. Ayichie (2005) 2 NWLR Pt. 910 pg. 623.
Therefore it means that a question of jurisdiction can be raised at anytime even at the Court of Appeal or Supreme Court. A Court can also suo motu raise an issue of jurisdiction.
In the present case, the Respondent by a Preliminary Objection raised a question of jurisdiction. The Respondent challenged the jurisdiction of the court to hear the suit in the lower court. The Appellant counsel scribbled its signature for “Yemi Osinbajo SAN”.
The signature does not belong to any identifiable person known to law.
The name of the person who signed the process was not on the process. This singular inadvertence had rendered the original process incompetent. See S.2 (1) and 24 of Legal Practitioners Act Cap L11 LFN 2004 Okafor v. Nweke (supra).
Since the Originating Summons and the supporting written address are incompetent the lower court, therefore, lacked the necessary vires to hear the suit. Once a court lacks jurisdiction, the matter ends here and the only procedural duty left for the court is to strike the suit or appeal out.
This Preliminary Objection has merit and it is upheld. This appeal and the suit in the lower court is struck out as the Originating Process is incompetent. The judgment of the lower court is set aside. I make no orders as to cost.
JOSEPH SHAGBAOR IKYEGH,J.C.A.: I am in full agreement with the lucid judgment prepared by my learned brother, Ndukwe-Anyanwu, J. C. A., which I had the honour of reading in print. I gratefully adopt the judgment as mine with nothing to add. I too abide by the consequential order on costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, U. I. NDUKWE – ANYANWU, JCA.
I agree with the reasoning and conclusions arrived at in the judgment and I have no additional contribution to make. The judgment has fully considered the main issue in contention between the parties which is whether the suit was statute barred by the time the action was commenced.
I also abide by the orders made in the lead judgment.
Appearances
B. Irukera, Esq. with O. Odum, Esq.For Appellant
AND
F. Onuobia Esq. with A. G Anafi, Esq.For Respondent
