WEMA BANK v. ALIMI LAMIDI
(2017)LCN/9644(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of March, 2017
CA/AK/4/2012
RATIO
JURISDICTION: CONSEQUENCE OF A COURT NOT HAVING THE JURISDICTION TO HEAR AND DETERMINE A MATTER BEFORE IT
The question of jurisdiction is very fundamental in the adjudication of matters in Court. If a Court has no jurisdiction to hear and determine a matter, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be because a defect in competence is very fundamental. DAPIANLONG v. DARIYE (2007) 8 NWLR (Pt. 1036) PG. 336. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
ISSUE OF JURISDICTION: IMPORTANCE OF RESOLVING THE ISSUE OF JURISDICTION FIRST BEFORE EMBARKING ON FURTHER PROCEEDINGS
The issue of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. UKWU v. BUNGE (1997) 8 NWLR (Pt. 518) PG. 527, A-G, LAGOS STATE v. DOSUNMU (1989) 3 NWLR (Pt. 111) PG. 552, NNONYE v. ANYICHE (2005) 2 NWLR (Pt. 910) PG. 623. Where the jurisdiction of a Court is challenged, the Court is entitled to consider the Plaintiffs claim before it in order to decide, whether it has the jurisdiction to entertain it. “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.” UMANAH v. ATTAH (2006) 17 NWLR (Pt. 1009) 503, MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587, SKENCONSULT v. UKEY (1981) 1 SC 6, BENIN RUBBER PRODUCERS LTD. v. OJO (1997) 9 NWLR (Pt. 521) 388. MAGAJI v. MATARI (2000) 5 SC 46, ALAO v. AFRICAN CONTINENTAL BANK LTD. (2000) 6 SC (Pt. 1) 27, GALADIMA v. TAMBAI (2000) 6 SC (Pt. 1) 196, ARAKA v. EJEAGWU (2000) 12 SC (Pt. 1) 99, LUFTHANZA AIRLINES v. ODIESE (2006) 7 NWLR (PT. 978) 39. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
JURISDICTION: WHETHER A PARTY CAN IMPOSE JURISDICTION ON A COURT ; THE PROPER ORDER FOR THE COURT TO MAKE WHERE IT LACK JURISDICTION
Once a Court lacks jurisdiction, a party cannot use any Statutory Provision or Common Law principle to impose it because absence of jurisdiction is irreparable in law. The only thing left for the Court to do is to strike out the matter. UMANAH v. ATTA (2006) 17 NWLR (Pt. 1009) PG. 503. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
SIGNING OF COURT PROCESSES: POSITION OF THE LAW WHERE COURT PROCESSES ARE SIGNED BY A LAW FIRM
Section 2(1) and 24 of the Legal Practitioner Act which provide as follows: “Section 2(7): Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the roll. Section 24: Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as s barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.” By virtue of Section 24 of Legal Practitioner Act, a legal practitioner in Nigeria is a person entitled in accordance with the provisions of this Act to practice as a lawyer. OKAFOR v. NWEKE (SUPRA). The general rule is that Court processes signed in the name of a law firm without indicating the name of the practitioner who signed them are incompetent and are liable to be struck out. In other words, Court processes must be signed by a legal practitioner known to law. A person shall be entitled to practice as a lawyer in Nigeria if and only if his name is on the roll. OKAFOR v. NWEKE (SUPRA). See Section 2(1) of Legal Practitioner Act, 2004. Now that these originating Processes were signed by a law firm of “A. Ajibola & Co.”, does it conform with the provisions of Section 2(1) and Section 24 of Legal Practitioner Act? I dare say that the signing of the originating Processes by a firm does not conform to what Section 2(1) and Section 24 of Legal Practitioner Act envisaged. A law firm is not a legal practitioner known to law. Therefore the processes signed by the law firm are incompetent and therefore renders the whole proceedings null and void ab initio. The proceedings conducted by the trial Court on the strength of the incompetent process become a nullity. It cannot be remedied. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
WEMA BANK – Appellant(s)
AND
ALIMI LAMIDI – Respondent(s)
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State delivered on 11th July, 2011 by Hon. Justice O. O. Afolabi.
By a writ of summon together with a Statement of Claim dated 23rd January, 2006, the Plaintiff now Respondent claimed against the Defendant now Appellant as follows:
(1) Declaration that the suspension and subsequent dismissal of the Plaintiff by the Defendant by its letter dated 30th March, 2005 was wrongful, invalid, null and void and constituted a breach of the contract of employment of the Plaintiff with the Defendant.
(2) The sum of N270,000.00 being the accrued salaries and allowances due to the Plaintiff for the period of his suspension with half pay and later without pay till the filing of this suit i.e. March 2005 to December 2005, a period of 10 months at the rate of N27,000.00 Per month.
(3) Payment of all benefits, gratuity, pension and other entitlements to the Plaintiff at the current rate the Defendant pays her retired staff calculated up to the period when the Plaintiff shall attain the retirement age of
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60 years or ALTERNATIVELY
(4) The sum of N5,000,000.00 (Five Million Naira) being general damages for wrongful dismissal, embarrassment, humiliation, shame, frustration, financial hardship and other inconveniences suffered and still being suffered by the Plaintiff on account of his wrongful suspension from duty and dismissal by the Defendant.
The Defendant/Appellant in opposition filed a Statement of Defence and counter-claim wherein it counter-claimed against the Plaintiff/Respondent as follows:
(a) The sum of N715,230.00 (Seven hundred and Fifteen thousand, Two hundred and Thirty Naira only) representing the sum suppressed and fraudulently converted by the Plaintiff.
(b) For a mandatory Order of this Honourable Court that the Plaintiff avail his presence at the police station for interrogation on the robbery incident of May 28th 2004.
(c) For other consequential Order(s) and reliefs as may be just and equitable in the circumstances.
Pleadings were filed and exchanged between the parties. At the conclusion of evidence on both sides and after taking the address of counsel, the trial judge in delivering its judgment held as
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follows:
“(1) The dismissal of the Plaintiff by the Defendant from its employment was wrongful, and constituted a breach of the contract of employment of the Plaintiff with the Defendant.
(2) Reliefs 2 and 3 of the Plaintiffs claim is granted.
(3) Cost of N15,000.00 is awarded in favour of the Plaintiff and against the Defendant.”
Dissatisfied with the said judgment, the Defendant as Appellant filed an Amended Notice of Appeal on 20th November, 2013, containing 7 grounds of appeal.
In accordance with the Rules of this Court, learned counsel for the Appellant filed its brief of argument on 30th January, 2015 but deemed properly filed on 2nd February, 2015, while the Respondent’s brief of argument was filed on 4th May, 2015 but deemed properly filed on 21st September, 2015. Appellant thereafter filed a Reply brief on 21st September, 2015.
The Appellant in its brief formulated four issues for determination as follows:
ISSUE 1
Whether or not the lower Court has the jurisdictional competence to have heard and determine the Claim of the Respondent in view of the fact that all his originating processes (i.e. Writ of
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Summons, Statement of Claim, Reply to Statement of Defence, and Defence to Counter-Claim) were not signed by the legal practitioner known to law.
ISSUE 2
Whether the Appellant gave the Respondent fair hearing before terminating his employment.
ISSUE 3
Whether the findings of the Court that the Appellant did not prove conclusively the allegation of cash suppression and stealing against the Respondent was borne out of the evidence before the Court.
ISSUE 4
Whether the termination of the employment of the Respondent constituted a breach of his contract of employment and if in the affirmative, whether the Court can rightly give the Respondent judgment directing the Appellant to pay the benefits, gratuity, pension and other entitlements to the Respondent at the current rate the Appellant pays her retired staff calculated up to the period when the Respondent shall attain the retirement age of 60 years.
The Respondent on the other hand, formulated two issues for determination as follows:
(a) Whether the suit was properly and validly commenced at the trial Court.
(b) Whether the Respondent’s employment was not unlawfully
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terminated by the Appellant.
From the briefs of the parties, one issue runs paramount; i.e. the issue of jurisdiction of the lower Court to entertain this case. It is issue No. 1 in both parties brief of argument.
Arguing on issue 1, learned counsel for the Appellant submitted that it is settled law that only a legal practitioner recognize by law can issue or sign Court Processes. He relied on Section 2(1) and 24 of the Legal Practitioners Act. He further submitted that any Court processes not issued or signed by a legal practitioner recognized by law is fundamentally defective, incompetent, null and void and thus incapable of conferring jurisdiction on any Court of law to entertain the matter.
Counsel stated that the propriety of signing a Court process in the name of a law firm rather than in the name of a legal practitioner was considered by the Supreme Court in OKAFOR v. NWEKE (2007) 10 NWLR (Pt. 1043) 521 and that the conclusion of the Supreme Court in that matter was that such a process was incompetent and liable to be struck out. He also referred to the cases of OGUNDELE v. AGIRI (2009) 18 NWLR (Pt. 1173) 219; SLB CONSORTIUM v.
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N.N.P.C. (2011) 4 SCNJ 211; OKETADE v. ADEWUNMI (2007) 10 NWLR (Pt. 1043) and also CONTINENTAL SHIPYARD Ltd v. EZIOGOLI SHIPPING Ltd (2010) 1 WRN 138.
Concluding, learned counsel for the Appellant submitted that since the Originating Process commencing this action was incompetent having been signed by a law firm i.e. “Yemi Ajibola & Co. and A. Ajibola & Co.” and not a legal practitioner, this fundamental error in initiating the action is so fatal and has robbed the lower Court of jurisdiction to entertain the suit and give judgment in favour of the Respondent. He relied on the cases of ALAWIYE v. OGUNSANYA (2012) 12 SC (Pt. 111) 1: ALIMS NIG LTD v. UBA (2013) 1 SC 1: MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341.
He thus urged this Court to resolve this issue in favour of the Appellant.
?Learned counsel for the Respondent on his part submitted that the Respondent having commenced this action under the Oyo State High Court (Civil Procedure) Rules 1988 which allowed the signing of Court process either by a legal practitioner’s name or firm, the filing of the suit in the name of “Yemi Ajibola & Co. and A. Ajibola & Co.” was not
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irregular and improper and hence it did not deprive the lower Court of the jurisdiction to entertain this matter. He referred to Order 5 Rule 12(7) of the Oyo State High Court (Civil Procedure) Rules 1988.
Counsel also contended that the principle of stare decisis in respect of the Supreme Court decision of OKAFOR v. NWEKE (SUPRA) and other similar cases will not apply in this case. It is the contention of counsel that the facts in this case can be distinguishable from the facts in the case of OKAFOR v. NWEKE (SUPRA) and other similar cases as the Oyo State High Court Rules 1988 was not considered. He referred to the case of DAVID v. JOLAYEMI (2011) 13 WRN 55.
Counsel urged this Court to disregard the argument of the Appellant as the alleged incompetence is merely an irregularity and does not go to the substance of the suit.
?Learned counsel for the Appellant in his reply submitted that it is trite that Rules of Court cannot override the express provision of a Statute or a Court decision and as such the Rules of the Oyo State High Court 1988 cannot override the provision of Section 2(1), 4, 7, 23 and 24 of the Legal Practitioners Act
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neither can it override the decision of the Supreme Court on this issue. He relied on the cases ofAFRIBANK NIGERIA PLC v. AKWARA (2006) 1 SC (Pt. II) 41; AUTO IMPORT EXPORT v. ADEBAYO (2002) 18 NWLR (Pt. 799) 554; UNIVERSITY OF LAGOS & ANOR v. AIGORO (1984) 12 SC 152; OKAFOR v. NWEKE (SUPRA); OGUNDELE v. AGIRI (SUPRA); SLB CONSORTIUM v. N.N.P.C. (SUPRA).
Finally counsel submitted that the decision in DAVID v. JOLAYEMI (SUPRA) which the respondent counsel heavily relied on does not assist the case of the Respondent and as such of no relevance to the determination of this appeal.
He thus urged this Court to allow this appeal and set aside the judgment of the lower Court delivered on the 11th July, 2011 against the Appellant and grant the Appellant’s Counter-claim.
RESOLUTION
This matter borders on the jurisdiction of the Court to hear this appeal on the grounds that the Writ of Summons and the Statement of Claim taken out in 2006 offends the law.
?The question of jurisdiction is very fundamental in the adjudication of matters in Court. If a Court has no jurisdiction to hear and determine a matter, the proceedings are and
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remain a nullity ab initio no matter how well conducted and brilliantly decided they might be because a defect in competence is very fundamental. DAPIANLONG v. DARIYE (2007) 8 NWLR (Pt. 1036) PG. 336.
The Appellant’s counsel had called the Court’s attention to the defective Writ and Statement of Claim filed by the Respondent as Plaintiff in the lower Court. The issue of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. UKWU v. BUNGE (1997) 8 NWLR (Pt. 518) PG. 527, A-G, LAGOS STATE v. DOSUNMU (1989) 3 NWLR (Pt. 111) PG. 552, NNONYE v. ANYICHE (2005) 2 NWLR (Pt. 910) PG. 623.
Where the jurisdiction of a Court is challenged, the Court is entitled to consider the Plaintiffs claim before it in order to decide, whether it has the jurisdiction to entertain it.
“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
9
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.” UMANAH v. ATTAH (2006) 17 NWLR (Pt. 1009) 503, MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587, SKENCONSULT v. UKEY (1981) 1 SC 6, BENIN RUBBER PRODUCERS LTD. v. OJO (1997) 9 NWLR (Pt. 521) 388. MAGAJI v. MATARI (2000) 5 SC 46, ALAO v. AFRICAN CONTINENTAL BANK LTD. (2000) 6 SC (Pt. 1) 27, GALADIMA v. TAMBAI (2000) 6 SC (Pt. 1) 196, ARAKA v. EJEAGWU (2000) 12 SC (Pt. 1) 99, LUFTHANZA AIRLINES v. ODIESE (2006) 7 NWLR (PT. 978) 39.
In the instant case, the Writ of Summons and the Statement of Claim were signed by “Ajibola & Co.” Section 2(1) and 24 of the Legal Practitioner Act which provide as follows:
“Section 2(1):
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Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the roll.
Section 24: Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as s barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.”
By virtue of Section 24 of Legal Practitioner Act, a legal practitioner in Nigeria is a person entitled in accordance with the provisions of this Act to practice as a lawyer. OKAFOR v. NWEKE (SUPRA).
The general rule is that Court processes signed in the name of a law firm without indicating the name of the practitioner who signed them are incompetent and are liable to be struck out. In other words, Court processes must be signed by a legal practitioner known to law.
A person shall be entitled to practice as a lawyer in Nigeria if and only if his name is on the roll.OKAFOR v. NWEKE (SUPRA). See Section 2(1) of Legal Practitioner Act, 2004.
Now that these originating Processes were signed by a law firm of “A. Ajibola & Co.”, does it conform
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with the provisions of Section 2(1) and Section 24 of Legal Practitioner Act?
I dare say that the signing of the originating Processes by a firm does not conform to what Section 2(1) and Section 24 of Legal Practitioner Act envisaged.
A law firm is not a legal practitioner known to law. Therefore the processes signed by the law firm are incompetent and therefore renders the whole proceedings null and void ab initio. The proceedings conducted by the trial Court on the strength of the incompetent process become a nullity. It cannot be remedied.
Once a Court lacks jurisdiction, a party cannot use any Statutory Provision or Common Law principle to impose it because absence of jurisdiction is irreparable in law. The only thing left for the Court to do is to strike out the matter. UMANAH v. ATTAH (2006) 17 NWLR (Pt. 1009) PG. 503.
This issue is resolved in favour of the Appellant.
The three other issues have no bearing anymore as the Court lacks jurisdiction to continue.
This appeal is meritorious. It is allowed. The judgment of the lower Court is a nullity and therefore set aside.
?I make no orders as to
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costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I had read the lead Judgment just rendered now in its draft form and do agree with my learned brother Uzo I. Ndukwe-Anyanwu, JCA in his lead Judgment that the appeal is meritorious and should be allowed.
There was in law no validly constituted suit at the trial Court on account of which the trial Court could proceed to adjudicate and deliver Judgment as the Writ of Summons was taken out and signed by “Yemi Ajibola & Co. and A. Ajibola & Co”.
The Writ not having been signed by a legal practitioner known to law and registered as such was in violation of the provisions of Section 2(1) and 24 of the Legal Practitioners’ Act, 2004, rendered the suit and Court incompetent. His Lordship has so comprehensively referred to the plethora of the decisions of this Court and the Apex Court on the now settled and over trodden path that a Court is without jurisdiction to entertain a suit not competently taken out. See Madukolu v. Nkemdilim(1962) 1 All NLR 587, ; Umanah v. Attah (2006) 17 NWLR (Pt. 1009) 503 and a rain of other cases set out at pages 10-11 of the
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lead Judgment.
In Appeal No. CA/J/280/2001 Texaco (Nig.) Plc And Reuben Iloka 2. Iloksons & Co. (Nig.) Ltd delivered on 31st May, 2013, I stated that the competence/the validity of an originating process is a fundamental and necessary prerequisite for the competence of a suit or an appeal.
That the failure to commence the suit with a valid process did not place the suit properly before the Court, which as a corollary lacked the jurisdiction to entertain and adjudicate on same.
In Dr. Braithwaite v. Skye Bank Plc (2012) 12 SC 1 the point was also made.
The violation of the Legal Practitioners Act as made is such that cannot be waived; the Writ of Summons was incompetent and so also the trial Court had no jurisdiction to embark upon any hearing of the case.
The proceedings, including the Judgment were, therefore, undertaken and rendered without jurisdiction and must be set aside.
This Court has no resurrection power over the suit that was dead from inception. Why are such violations still occurring? I agree with my Lord in the lead that the suit which could not crawl because it had no legal valid
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sub-stratum should be struck out.
Can any Counsel claim ignorance of this notorious position of the law in Nigeria?
I shall not reproduce the plethora of authorities in this regard as it will be boring so to do. My Advise as to what course is opened to dissatisfied parties or litigants with the position of the Law as it is now, can be found in this Court’s decisions in CA/I/46/2009 (Akure Division) CA/J/408/2007 (Makurdi Division) CA/J/280/2011 of 31/1/13 (Makurdi Division); Tunde Akinlusi v. CBN ? CA/L/298/1997 of 31/1/2011. I surmise that when the back-log of such defective initiating processes are exhausted from the arsenals and Dockets of our Law Chambers, learned counsel for parties/Litigants will consider very seriously the misfortune and unfortunate toll of losses brought by non adherence to this clear position of the Law which is justified by the substantive Laws and in the protection of the legal profession and the avoidance of Quackery. In Dr Braithwaite v. Skye Bank Plc. (2012) 12 SC (Pt. 1) Pg. 1, the Supreme Court re-stated per Mohammed JSC thus:
“I agree with Learned Counsel to the Respondent/Objector that this Court
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has consistently held that the validity of the originating processes in a proceeding before a Court is a fundamental and necessary requirement for the competence of the suit. Failure to commence the suit with a valid Writ/Statement of claim goes to the root of the action since the condition precedent to the exercise of the Court’s jurisdiction would not have been met to duly place the suit before the Court. See Madukolu v. Nkemdilim; Mohammed Maikida v. A. D. Ogunmola (2006) 6 SC 147, (2006) 13 NMLR (Pt. 1997)”.
The trial Court had no jurisdiction as the case was not properly placed before her. An exercise in futility was embarked upon, regrettably. As I always say, all Courts in Nigeria, below the Supreme Court are to stand Akimbo to this stance, unless and until it is reversed by the Apex Court or by Legislation amending the relevant Legislations and/or Nullifying the Apex Court’s decision as done during the 1965 Legislations in South Africa relating the Unilateral Declaration of Independence and the aftermath cases of Mudzimatunto e.t.c.
Pursuant to Section 15 of the Court of Appeal Act, 2004, I allow the appeal and set aside the Null
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Judgment delivered on 11th July, 2011 at the lower Court and strike out the suit therein, the subject of this Appeal.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: My learned brother, UZO I. NDUKWE-ANYANWU, JCA/PJ rendered me the opportunity of reading the lead judgment delivered which I read in draft. I agreed with my noble lord reasoning and conclusion touching on issue of jurisdiction with nothing useful to add.
I too resolved the first issue in favour of the Appellant and found the appeal meritorious. It is allowed and the judgment of the trial Court set aside as it is a nullity for lack of jurisdiction.
?Parties to bear their individual costs.
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Appearances:
E. OchukwunuFor Appellant(s)
M.O. AweFor Respondent(s)
Appearances
E. OchukwunuFor Appellant
AND
M.O. AweFor Respondent
