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WHILZY INDUSTRIES (NIG) LTD & ORS v. UBA PLC & ANOR (2022)

WHILZY INDUSTRIES (NIG) LTD & ORS v. UBA PLC & ANOR

(2022)LCN/16615(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, June 09, 2022

CA/IB/184/2013

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

1. WHILZY INDUSTRIES NIGERIA LIMITED 2. EMMANUEL OLUKOKUN TAIWO OLORUNWA 3. ELDER MOSES ADEBAYO TAIWO OLORUNWA 4. ELDER JOSEPH AKINTAYO APPELANT(S)

And

1. UNITED BANK FOR AFRICA PLC 2. E. O. SOWADE RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON WHEN A COURT IS SAID TO BE COMPETENT

The law is trite and it is that:
“… a Court is competent when –
1. it is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another; and
2. 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
3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
per the Supreme Court in the case of Gabriel Madukolu & Ors v. Johnson Nkemdilim (1962) NSCC (Vol. 2) 374 at 379.
See also the case of Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. PER ADUMEIN, J.C.A.

THE POSITION OF LAW ON WHERE A TRIAL COURT LACKS JURSIDICTION TO ENTERTAIN AN ACTION OR A CASE

The law is settled that where a trial Court lacks jurisdiction to entertain an action or a case, its proceedings are a nullity and the Court of appeal would have no jurisdiction to entertain an appeal arising therefrom. Such an appeal is liable to be struck out for want of jurisdiction. See Chief Etuedor Utih v. Jacob Umurhurhu Onoyivwe & Ors (1991) 1 NWLR (Pt. 166) 166, SLB Consortium Limited v. Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 and All Progressive Grand Alliance v. Senator Christiana N. D. Anyanwu & 2 Ors (2014) 7 NWLR (Pt. 1407) 541. PER ADUMEIN, J.C.A.

WHETHER OR NOT A COURT IS TO INDULGE IN AN ACADEMIC EXERCISE

The law is quite settled that a Court is not to indulge in an academic exercise but is to restrict its deliberations to only live issues. See Evangelist Adeyemi Oyeneye v. S.O. Odugbesan (1972) 4 SC 244; Chief R. O. Nkwocha v. Gov. Anambra State (1984) 1 SCNLR 634, Ikenye Dike v. Obi Nzeka (1986) 4 NWLR (Pt. 34) 144, Jimoh Akinfolarin v. Solomon Oluwole Akinnola (1994) 3 NWLR (Pt. 335) 659, Dalek Nigeria Limited v. Oil Mineral Producing Areas Development Commission (2007) 7 NWLR (Pt. 1033) 402, Amalgamated Trustees Limited v. Associated Discount House Limited (2007) 15 NWLR (Pt. 1056) 118, Chukwuka Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1, Dr. John Olukayode Fayemi & Anor v. Olusegun Adebayo Oni & 7 Ors (2010) 17 NWLR (Pt. 1222) 326, Senator Umaru Dahiru v. All Progressives Congress (2017) 4 NWLR (Pt. 1555) 248 and Prof. Rasheed Ijaodola v. University of Ilorin Governing Council & 17 Ors (2018) 14 NWLR (Pt. 1638) 32. PER ADUMEIN, J.C.A.

THE POSITION OF LAW ON HOW A COURT PROCESS IS TO BE FRANKED BY A LEGAL PRACTITIONER

The position of the law concerning how a Court process should be franked by a Legal Practitioner has not changed. See Section 2 and 24 of the Legal Practitioners Act, the case of OKAFOR V. NWEKE (2007) ALL FWLR (PT. 368) 1016, OLU ODE OKPE V. FAN MILK PLC & ANOR (2016) LPELR-425662.
In this appeal, the writ of summons and statement of claim were signed by S.A. ONADELE & CO and it offends Section 2(1) and 24 of the Legal Practitioners Act, which provides that only the person whose name appears on the roll of the Supreme Court can engage in any form of legal practice, therefore, a defective writ cannot confer jurisdiction on the Court as held in OKAFOR & ORS V. AUGUSTINE NWEKE & ORS (2007) 3 SC (PT. 11) 55 and MACFOY V. UAC(1962) AC 150. Hence the writ of summons and statement of claim are both incompetent ab initio, the trial Court was divest of jurisdiction to entertain the Appellant’s action.
PER ADUMEIN, J.C.A.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellants were the Plaintiffs in Suit No. FHC/IB/CS/91/2001 commenced by way of writ of summons in the Federal High Court, holden at Ibadan, in which they sought the following claims against the respondents, who were the defendants therein:
“The Plaintiff’s claim is for:
1. Declarations that the appointment of the 2nd defendant by the 1st defendant as Receiver/Manager of the 1st Plaintiff by virtue of the Floating Debenture dated 3/10/90 and the Deed of Appointment dated 26/4/2000 registered as per the Corporate Affairs commission’s letter dated 7/6/2000 is invalid, null and void and of no effect whatsoever in so far as it purportedly authorized the taking of possession of the 1st plaintiff’s factory premises situate at Sakutu Ogbegbe Area, Oyo (including buildings and fixtures together with fixed plants and machineries thereon).
2. Declarations that the ex parte Court order dated 6/10/2000 in Suit No. FHC/IB/CS/53/2000 by which the 2nd defendant entered the factory premises of the 1st Plaintiff at Sakutu Ogbegbe Area Oyo on 11/10/2000 vi et armis with the aid of armed policemen and multitude of people is a nullity being in breach of plaintiffs’ constitutional right of fair hearing and obtained by the defendants in bad faith and in abuse of the process of the Court.
3. Declarations that the 1st defendant has not acted bona fide in the exercise of his powers and the discharge of the functions of his office as Receiver/Manager of the 1st plaintiff as laid down by the Deed of Floating Debenture and the Companies and Allied Matters Act, Cap. 59 Laws of the Federation of Nigeria 1990 with resultant damage to the plaintiffs.
4. Declarations that the defendants fraudulently conspired to deal unfairly with the assets of the plaintiffs and thereby occasioned considerable damage to the plaintiffs.
“5. Declarations that the property of the 2nd plaintiff situate at Sakutu Ogbegbe Area, Oyo and covered by Certificate of Statutory Right of Occupancy dated 14/5/81 and registered as No. 41 in Vol. 2378 of the Lands Registry in the office at Ibadan is free from incumbrances purportedly created in favour of the 1st defendant by the legal mortgage dated 4/10/90 and registered as No. 20/20/2961 of the Lands Registry in the office at Ibadan, on account of the said legal mortgage being null and void for not having received the consent of the Governor as stipulated by the mandatory provisions of the Land Use Act, Cap. 202 Laws of the Federation of Nigeria.
6. Further declarations that the 2nd defendant as agent of the 1st defendant committed trespass when on 11/10/2000 he entered the factory premises of the 1st plaintiff situate at Sakutu Ogbegbe Area, Oyo, vi et armis with armed policemen and multitude of people and continues to remain there since then in the purported exercise of powers and duties as receiver/Manager of the 1st plaintiff when the said property being the bona fide property of the 2nd plaintiff by virtue of the Certificate of Statutory Rights of Occupancy dated 14/5/81 and registered as No. 41 at page 41 in Vol. 2378 of the Lands Registry in the office at Ibadan is outside the scope of the Deed of Debenture dated 3/10/90 under which he was appointed as Receiver/Manager.
7. Injunctions restraining the defendants, their servant, agents or privies from committing further acts of trespass on the said property and/or selling or perfecting the sale or interfering or further interfering with the plaintiffs’ rights, interests or possession thereof including buildings and fixtures together with fixed plants and machineries thereon.
8. An order of mandatory injunctions directing the defendants their agents, privies or any person deriving title or interests from them to return to the premises of the 1st plaintiff intact and in their original form all the assets of the 1st plaintiff irregularly dismembered, removed or caused to be removed from the said premises of the 1st plaintiff by the defendants their agents or privies.
9. Aggravated damages of N2. Million.”

The appellants also filed a statement of claim of 40 paragraphs by which the above claims were repeated in paragraph 40 thereof. The respondents, as the defendants in the trial Court, filed a statement of defence of 47 paragraphs. The respondents raised a preliminary objection in paragraphs 34 and 42 of their statement of defence as follows:
“The Defendants shall at the trial of this matter raise as a point of preliminary objection that in view of the present status of the 1st plaintiff (being a Company in Receivership) the plaintiffs do not have the Locus Standi to institute this action.”
“The Defendants shall raise as a matter of preliminary point of law that the instant action as presently constituted does not disclose any reasonable cause of action.”

The respondents by a motion on notice dated 02/05/2003 but filed an 07/05/2003 got leave of the lower Court to set down their preliminary questions for hearing. After hearing the parties on the preliminary objection, the trial Court, per Hon. Justice S. Yahaya, rendered a reserved ruling on 13/05/2004 whereby the appellants’ action was struck out for being “incompetent as it is not properly constituted”. This appeal is against the said decision and it is based on the appellants’ notice of appeal filed on 16/05/2014, after obtaining an order from the Court on 08/05/2014.

The appeal was argued solely on the appellants’ brief filed on 30/05/2014 because this Court made an order on 23/05/2019 that the respondents should not be heard “on account of deliberate failure to file brief”.

At the hearing, Babajide Onadele, Esq., learned counsel for the appellants, adopted and relied on the appellants’ brief and urged the Court to allow the appeal.

It should be noted that in the appellants’ brief, settled by O. Akinfemi Onadele, Esq., they raised the following issues for determination:
“Issue 1: Whether having regard to the effect of judicial authorities binding on it, particularly Okafor v. Nweke 2007 10 NWLR (Pt. 1042) 521, the trial Court ought to have declined the exercise of jurisdiction on the Respondents’ application being an initiating process signed by a law firm (Ground 1).
Issue 2: Whether the trial Court was right to have struck out the action as being incompetent on the ground that there was no authorization by the board of directors when that issue was raised suo motu by the trial Court without hearing the parties thereon (Grounds 2 & 3).
Issue 3: Whether in all the circumstances of the case, the default of trial Court to resolve clear conflicts before it as to whether or not the Appellants have Locus standi to institute the action on account of the 1st Appellant being under receivership did not occasion miscarriage of justice (Grounds 4 & 5).
Issue 4: Whether having regard to the facts and circumstances of the case, the decision of the Court below in striking out the action was the outcome of a discretion judicially and judiciously exercised (Grounds 6, 7 & 8).”

Having read the record of appeal and bearing in mind the fundamental nature of jurisdiction, this Court suo motu raised the issue of the competence of the appellants’ writ of summons and statement of claim and asked the learned counsel to address the Court on it.

The relevant proceedings at the hearing of the appeal and the responses of the learned counsel are hereby fully reproduced as follows:
“HEARING
Mr. Onadele: This appeal was filed pursuant to the orders of this Court made on 08/05/2014.
We adopt and rely on the appellants’ brief filed on 30/05/2014.
We urge the Court to allow the appeal.
Mr. Falase: We did not file any brief.
COURT: The Court is by law entitled to take judicial notice of the record of appeal.
We have taken judicial notice of the originating writ of summons and the statement of claim filed in Suit No. FHC/IB/CS/91/2001 and there is apparently the jurisdictional issue of the competence of the appellants’ suit.
The parties are, therefore, hereby ordered to orally address us on the competence of the appellants’ suit.
(SGD)
MOORE A. A. ADUMEIN
PRESIDING JUSTICE,
06/06/2022.
Mr. Onadele: The appellant’s originating suit is competent in view of the decision in the case of S.P.D.C.N. Ltd v. Gbeneyei (2019) 13 NWLR (Pt. 1989) 272 at 294.
Upon the filing of our action, the respondents took steps by filing processes in the lower Court and they have waived any right to complain of any defect in the appellants’ processes, which is a procedural jurisdictional matter. See BPE v. Dangote Cement PLC (2021) ALL FWLR (Pt. 1082) 227.
Mr. Falase: We submitted that the appellants’ writ of summons and statement of claim were not applications but substantive processes which were not signed by a legal practitioner. See Ojikutu & Ors v. Kuti & Ors (2021) LPELR – 56231 (SC)
The appellants’ suit was not competent.
COURT: Judgment in this appeal is hereby reserved to be delivered on 09/06/2022.
(SGD)
MOORE A. A. ADUMEIN
PRESIDING JUSTICE,
06/06/2022.”

The writ of summons taken out by the appellants on 08/06/2001 is on pages 2 to 4 of the record of appeal, while their statement of claim spans from pages 5 to 10 of the record.

The appellants’ claims, as endorsed on their writ of summons and the appellants’ statement of claim were signed as follows:
“…
S. A. Onadele & Co.
Plaintiffs’ Solicitors,
No. 55, Iwo Road,
Opp. Old Testing Ground,
Ibadan.”

The writ of summons and the appellants’ statement of claim, in their action in the trial Court, were both signed by “S. A. Onadele & Co.”, which is a business name and at best a law firm. The law is settled that a law firm or business name, such as “S. A. Onadele & Co.” is not a legal practitioner, whose name is on the roll of the Supreme Court, under Sections 2(1) and 24 of the Legal Practitioners’ Act, Cap. L11, Laws of the Federation of Nigeria, 2004 who can sign Court processes and appear in Court to represent a party in any judicial proceedings. Thus, in the case of SLB Consortium Limited v. Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 at 332, per Onnoghen, JSC (as he then was), the Supreme Court held as follows:
“…in law, a business name is not accorded legal personality, it is not recognized as a legal person capable of taking or defending actions in the law Courts.”
At page 366 of the same case, the apex Court Fabiyi, JSC was very specific by holding and stating as follows:
“In reality “Adewale Adesokan & Co.” which signed the originating summons is not a legal practitioner known to the applicable Legal Practitioners Act …
It is not in doubt that the signature of ‘Adewale Adesokan & Co.’ on the originating summons of the appellant robs the process of competence ab initio…”
See also the cases of Emmanuel Okafor v. Augustine Nweke (2007) 3 SC (Pt. II) 55; (2007) 10 NWLR (Pt. 1042) 521 and Prof. Vincent Nnamdi Okwuosa v. Prof. N. E. Gomwalk & Ors. (2017) 9 NWLR (Pt. 1570) 259.
In this case, since the writ of summons and the statement of claim were both signed by “S. A. Onadele & Co.”, these processes were ab initio incompetent and the trial Court was divested of jurisdiction to entertain the appellants’ action or suit.

The law is trite and it is that:
“… a Court is competent when –
1. it is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another; and
2. 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
3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
per the Supreme Court in the case of Gabriel Madukolu & Ors v. Johnson Nkemdilim (1962) NSCC (Vol. 2) 374 at 379.
See also the case of Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517.

In this case, the appellants’ action or suit was not initiated by due process of law as the writ of summons and the statement of claim, anchored thereon were not signed by any recognized legal personality or a legal practitioner known under the Legal Practitioners Act, 2004.

It should be noted that learned counsel for the appellants filed a list of additional authorities whereby decisions of this Court, including Yakusak v. Xela Nig. Ltd & Ors (2019) LPELR – 48728 (CA); Jalbait Ventures Nig. Ltd. & Anor v. Unity Bank Plc. (2016) LPELR – 41625 (CA), Leadership Newspaper Group Ltd. v. Senator Isa Mohammed (2017) LPELR – 4287 (CA) and Gwalem v. Daura & Ors (2019) LPELR – 48435 (CA) were cited to show that rules of various High Courts in Nigeria, which are ipsissima verba with those of the High Court of Oyo State (Civil Procedure) Rules, do not require writs to be signed by the plaintiff or legal practitioner on his behalf.

I agree that writs of summons are issued by the various High Courts. However, the endorsement as to the plaintiff’s claims are usually made by the plaintiff or a legal practitioner acting on his behalf. The Courts have no vires to make claims on behalf of a claimant/plaintiff or a party. Therefore, the claimant/plaintiff has the responsibility for the claims endorsed on the writ of summons issued on his behalf by the Court. Where the endorsement of the claims in a writ of summons are not signed, then nobody can be attached with the responsibility for them. In this case, it is not only the writ of summons, as per the relief endorsed thereon, that is defective. The statement of claim upon which the appellants based their case was equally affected by the same virus.

The cases cited in the appellants’ list of additional authorities are not applicable to the facts and circumstances of this case.

The appellants’ writ of summons and statement of claim, having not been signed by any legal person, can be regarded as unsigned processes. The law is that an unsigned document or process is worthless and has no efficacy in law. See Abdul Hamid Ojo v. Primate E. O. Adejobi (1978) 11 NSCC 161, Attorney-General of Abia State v. Silas O. Agharanya (1999) 6 NWLR (Pt. 607) 362, Faro Bottling Co. Ltd v. Lawrence Osuji (2002) 1 NWLR (Pt. 748) 311 and Omega Bank (Nigeria) Plc. v. O.B.C. Ltd. (2005) 1 SCNJ 150; (2005) 8 NWLR (Pt. 928) 547.

The learned counsel for the appellants argued that the respondents had taken steps in the trial Court in defence of the action and they had waived their right to complain.
I think that the issue of jurisdiction cannot be waived by any party, because parties cannot by consent or acquiescence confer jurisdiction on a Court of law. See Alero Jadesimi v. Adolo Okotie-Eboh(1986) 1 NWLR (Pt. 16) 264, Western Steel Works Limited & Anor v. Iron & Steel Workers Union of Nigeria & Anor (1986) 3 NWLR (Pt. 30) 617, Mr. Oladiti Adesola v. Alhaji Raimi Abidoye (1999) 14 NWLR (Pt. 637) 28, Hon. Sani Sha’Aban v. Alhaji Namadi Sambo (2010) 19 NWLR (Pt. 1226) 353, Isaac Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (Pt. 1247) 465 and All Progressive Grand Alliance v. Senator Christiana N. D. Anyanwu (2014) 7 NWLR (Pt. 1407) 541.

Without much ado, the appellants’ action or suit was incompetent and the trial Court had no jurisdiction to entertain it.
The law is settled that where a trial Court lacks jurisdiction to entertain an action or a case, its proceedings are a nullity and the Court of appeal would have no jurisdiction to entertain an appeal arising therefrom. Such an appeal is liable to be struck out for want of jurisdiction. See Chief Etuedor Utih v. Jacob Umurhurhu Onoyivwe & Ors (1991) 1 NWLR (Pt. 166) 166, SLB Consortium Limited v. Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 and All Progressive Grand Alliance v. Senator Christiana N. D. Anyanwu & 2 Ors (2014) 7 NWLR (Pt. 1407) 541.

It is for all the foregoing reasons that this appeal is hereby struck out for want of jurisdiction.

Consequently, the respondents’/applicants’ motion on notice for extension of time to cross-appeal against the ruling of the trial Court delivered on the 13th day of May, 2004 (the subject of the substantive appeal which has just been struck out) is also struck out as it has become academic; notwithstanding the said motion had been moved and ruling reserved.

The law is quite settled that a Court is not to indulge in an academic exercise but is to restrict its deliberations to only live issues. See Evangelist Adeyemi Oyeneye v. S.O. Odugbesan (1972) 4 SC 244; Chief R. O. Nkwocha v. Gov. Anambra State (1984) 1 SCNLR 634, Ikenye Dike v. Obi Nzeka (1986) 4 NWLR (Pt. 34) 144, Jimoh Akinfolarin v. Solomon Oluwole Akinnola (1994) 3 NWLR (Pt. 335) 659, Dalek Nigeria Limited v. Oil Mineral Producing Areas Development Commission (2007) 7 NWLR (Pt. 1033) 402, Amalgamated Trustees Limited v. Associated Discount House Limited (2007) 15 NWLR (Pt. 1056) 118, Chukwuka Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1, Dr. John Olukayode Fayemi & Anor v. Olusegun Adebayo Oni & 7 Ors (2010) 17 NWLR (Pt. 1222) 326, Senator Umaru Dahiru v. All Progressives Congress (2017) 4 NWLR (Pt. 1555) 248 and Prof. Rasheed Ijaodola v. University of Ilorin Governing Council & 17 Ors (2018) 14 NWLR (Pt. 1638) 32.
Therefore, the resolution of an issue one way or the other, as in the case of the respondents’ motion on notice to cross-appeal, will be no more than engaging in an academic exercise if the result will be of no utilitarian value to the parties. See Overseas Construction Co. Nig. Ltd. v. Creek Enterprises Nig. Ltd. (1985) 3 NWLR (Pt. 13) 407, M. O. Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162, Chief Gani Fawehinmi v. Col. Halilu Akilu (1987) 4 NWLR (Pt. 67) 799, Alhaji Dahiru Saude v. Alhaji Halliru Abdullahi (1989) 4 NWLR (Pt. 116) 387, Chief G. A. Titilayo v. Chief J. Omoniyi Olupo (1991) NWLR (Pt. 205) 519, Potter Dabup v. Haruna Bako Kolo (1993) 12 SCNJ 1, Abiodun Adelaja v. Yesufu Alade (1999) 6 NWLR (Pt. 608) 544; (1999) 4 SCNJ 4, Global Transport Oceanic S. A. & Anor V. Free Enterprises Nigeria Limited (2001) 2 SCNJ 224 and Dodo Dabo v. Alhaji Ikira Abdullahi (2005) 29 WRN 1.

For the avoidance of any doubt, the substantive appeal and the respondents’ motion on notice to cross appeal are hereby struck out.

The parties are hereby ordered to bear their respective costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA and I am in complete agreement with the lucid reasoning and conclusion arrived at in the judgment. The position of the law concerning how a Court process should be franked by a Legal Practitioner has not changed. See Section 2 and 24 of the Legal Practitioners Act, the case of OKAFOR V. NWEKE (2007) ALL FWLR (PT. 368) 1016, OLU ODE OKPE V. FAN MILK PLC & ANOR (2016) LPELR-425662.
In this appeal, the writ of summons and statement of claim were signed by S.A. ONADELE & CO and it offends Section 2(1) and 24 of the Legal Practitioners Act, which provides that only the person whose name appears on the roll of the Supreme Court can engage in any form of legal practice, therefore, a defective writ cannot confer jurisdiction on the Court as held in OKAFOR & ORS V. AUGUSTINE NWEKE & ORS (2007) 3 SC (PT. 11) 55 and MACFOY V. UAC(1962) AC 150. Hence the writ of summons and statement of claim are both incompetent ab initio, the trial Court was divest of jurisdiction to entertain the Appellant’s action.

I adopt the resolution in the lead judgment as mine and I abide by the orders made therein.

ABBA BELLO MOHAMMED, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA, to which I am in full agreement.

As ably stated in the lead judgment, this Court had, upon examination of the Record of Appeal at the hearing of this appeal, raised the issue of jurisdiction suo motu and directed parties to address it on the competence of the Appellant’s Writ of Summons and Statement of Claim which he used to commence the suit before the trial Court. It was apparent from the Record that the said originating processes with which the suit was commenced by the Appellant were all signed in the name of the law firm of S. A. Onadele & Co., instead of a legal practitioner as required by Sections 2(1) and 24 of the Legal Practitioners Act.

Although at the hearing of the appeal, the learned Counsel for the Appellant had acknowledged that the originating processes used to commence the suit at the trial Court were signed by the law firm of S. A. Onadele & Co., instead of the legal practitioner, he tried to argue that the Respondent have waived the irregularity by taking steps in the case. But the position of the law on the invalidity of Court processes signed in the name of law firms instead of identifiable legal practitioners has long been settled by plethora of judicial decisions of the Appellate Courts. Suffice it for me to state that the Apex Court had severally pronounced that by virtue of Sections 2(1) and 24 of the Legal Practitioners Act, Court processes can only be validly signed by legal practitioners and processes signed in the names of law firms are incompetent and invalid. See SALAMI v MUSE (2019) 13 NWLR (Pt. 1689) 301, per Muhammad, JSC at 323 and per Nweze, JSC at 320 – 321, ONYEKWULUJE v ANIMASHAUN (2019) 4 NWLR (Pt. 1662) 242, per Bage, JSC at 260 – 261, paras. E- E: FIRST BANK OF NIGERIA PLC v MAIWADA (2013) 5 NWLR (Pt. 1348) 444. Per Fabiyi, JSC at page 483, paras. B – G: SLB CONSORTIUM LIMITED v NNPC (2011) 9 NWLR (Pt. 1252) 317, per Onnoghen, JSC (as he then was) at pages 331 – 332. paras. H – B and per Rhodes-Vivour, JSC at pages 337 – 338. paras. G – B.
Indeed, faced with a similar scenario where the originating processes used to commence a suit were signed by a law firm instead of a legal practitioner, the Supreme Court had in its most recent decision delivered by Jauro, JSC in YONGO & ORS v HANONGON & ORS (2022) LPELR-57282(SC) held at pages 9 – 11, paras. C – D, that:
“The implication of the foregoing is that such originating processes or Court processes are incompetent and they are certain to be struck out. In a situation where the processes afflicted with the malady of fundamental defect is an originating process, the whole proceedings conducted thereon, including appellate proceedings would amount to a nullity and a time-wasting exercise.”
Commencing a suit with an incompetent originating process as was done by the Appellant is therefore, a fundamental defect that cannot be waived. And since the Appellant’s action before the trial Court was evidently commenced with incompetent originating processes, the trial Court was bereft of jurisdiction to entertain the suit. A trial is the foundation of the adjudicatory system and an appeal is merely a continuation of the case at trial. See CHITRA KNITTING & WEAVING MANUFACTURING CO. LTD v AKINGBADE (2016) LPELR-40437(SC), per Ogunbiyi, JSC at page 27 paras. A – B. Hence, an appellate Court cannot have jurisdiction in a matter which the trial Court lacked the jurisdiction to entertain. See YONGO & ORS v HANONGON & ORS (supra).

It is for the foregoing reasons which have been more elaborately espoused in the lead judgment of my learned brother, ADUMEIN, JCA, that I also strike out this appeal and all pending motions contained in it for want of jurisdiction.

Appearances:

Babajide Onadele, Esq. For Appellant(s)

Kanmi Falase, Esq. For Respondent(s)