ZURU v. FAKAI
(2021)LCN/15896(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, June 17, 2021
CA/S/143/2018
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
MAIDAWA ZURU APPELANT(S)
And
SAIDU GARBA FAKAI RESPONDENT(S)
RATIO
DEFINITION OF THE TERM “JURISDICTION”
A question that must be answered is: what is jurisdiction in law and what are its ingredients?
In the case of SHITTA-BEY VS. ATTORNEY-GENERAL, FEDERATION (1998) 10 NWLR (PT. 570) PAGE 392, jurisdiction was defined as follows:
“it is the authority a Court of law has to entertain and decide a matter brought before it by litigants. It embraces every kind of judicial action be it criminal, civil and what nots. It is the power of Court to decide a matter in controversy and it presupposes the existence of a duly constituted Court with control over the subject matter and the parties.”
While the ingredients of jurisdiction exist where:
(a) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction.
(b) The Court is properly constituted as regards members and their requisite qualification and no member is disqualified for one reason or the other; and
(c) The case is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See the cases of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; SKENCONSULT (NIG) LTD VS. UKEY (1981) 1 SC 6; ISHOLA VS. AJIBOYE (1994) 6 NWLR (PT. 352) PAGE 506; WESTERN STEEL WORKS LTD VS. IRON AND STEEL WORKERS UNION (1986) 3 NWLR (PT. 30) PAGE 617 and ODOFIN VS. AGU (1992) 3 NWLR (PT. 229) PAGE 350.
In the Supreme Court case of ALIOKE VS. OYE (2018) 18 NWLR (PT. 1651) PAGE 247 AT PAGE 260 PARAS B, jurisdiction was defined per Bage JSC as:
“The law is settled that jurisdiction is a threshold or fundamental issue that can be raised anytime during the trial of a suit up to finality.”
Also, in the Supreme Court case of PDP VS. OKOROCHA & ORS (2012) 15 NWLR (PT. 1323) PAGE 205, it was held that:
“jurisdiction is visualized as the very basis on which any Court or Tribunal tries a case. It is the lifeline of all trials. Any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of a proceeding.” PER IDRIS, J.C.A.
WHETHER OR NOT THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF COURT PROCEEDINGS
I will like to say that it is elementary law that jurisdiction can be raised at any time of a proceeding. In fact, it can be raised for the first time at the Supreme Court. In the case of APC VS. NDUUL & ORS (2017) LPELR–42415 (SC), the Apex Court held thus:
“…jurisdiction can be raised at any stage of the proceedings even on appeal up to the Supreme Court and in that regard, it is not mandatory that leave of Court be obtained before the issue of jurisdiction can be raised.”
Considering the paramount nature of jurisdiction, the issue of jurisdiction is taken as such that leave is not needed to raise it. Also because of its fundamental position, it can be brought up at any level of the proceedings even for the first time on appeal, whether at the Court of Appeal or Supreme Court. It would therefore be self-defeating, if there must be leave of Court before it can be raised. PER IDRIS, J.C.A.
GUIDELINES ON HOW COURT PROCESSES ARE SIGNED
This Court reiterated the stance of the Supreme Court on guidelines on how Court processes are signed in the case of ALHAJI ISMAIL AGWARU JEN VS. SANUSI ADAMU LAU (2014) LPELR–24167 (CA) AT PAGES 20–21 PARA E – A thus:
“For the sake of guidance, all processes filed in Court, are to be signed as follows (a) The signature, which may be any contraption; b) The name of counsel clearly written; c) The party counsel represents; d) name and address of law firm.”
This is a mandatory requirement of the law and the failure to adhere to it results in the writ being deemed defective, null and void ab initio and incapable of invoking the jurisdiction of the Court. See the cases of BRAITHWAITE VS. SKYE BANK PLC (2013) 5 NWLR (PT. 136) PG 1; OKARIKA VS. SAMUEL (2013) 7 NWLR (PT. 1352) PG 19 AT 37; EWUKOYA VS. BUARI (2016) LPELR–40492 (CA); TANIMU VS. RABIU (2018) 4 NWLR (PT. 1619) PG 505; HERITAGE BANK LTD VS. BENTWORTH FINANCE (NIG) LTD DELIVERED BY THE APEX COURT ON 23RD FEBRUARY, 2018 and FIRST BANK OF NIG PLC VS. MAIWADA (2013) 5 NWLR (PT. 1348) PG 44.
The case of MADUKOLU VS. NKEMDILIM (SUPRA) sets guidelines for when a Court is robbed of jurisdiction, one of which is when an action is commenced by a faulty process, it deprives the Court of jurisdiction. The decision of the Supreme Court in OKARIKA VS. SAMUEL (2013) 7 NWLR (PT. 1352) is very apt thus:
“The authority of the case of MADUKOLU V. NKEMDILIM under reference (SUPRA), is very well positioned on the jurisdiction of a Court to adjudicate on a matter before it. The threefold condition which must be fulfilled are hereunder listed as apparent. In other words, the jurisdiction of a Court can only be exercised when:- (1) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; (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 the due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.” PER IDRIS, J.C.A.
THE EFFECT OF AN UNSIGNED INITIATING COURT PROCESS
The effect of an unsigned initiating process was discussed by the Supreme Court in the case of OMEGA BANK NIG PLC VS. OBC LTD (2005) ALL FWLR (PT. 249) 1964 AT 1993, per Niki Tobi, JSC when he held:
“A document which is not signed does not have any efficacy in law. As held in cases examined, the document is worthless and a worthless document cannot be efficacious.” The failure therefore to commence proceedings with a valid writ of summons is an infraction, which clearly borders on the question of jurisdiction and the competence of the Court to adjudicate on the matter. See the case of BUHARI vs. ADEBAYO (2014) LPELR-22521 and KIDA vs. OGUNMOLA (2006) LPELR-1690 SC.”
From the above, it is clear that the act of not signing or signing of originating processes is taken seriously by the Court. Once an originating process is unsigned, it robs the Court of jurisdiction and any judgment that is delivered in such a case is null and void ab initio. This is not a matter of Courts sacrificing justice on technicalities. Lawyers cannot keep acting negligent and preparing shoddy processes and then raise the defence of technicalities. They have the legal obligation to pay proper attention when preparing processes for their clients. The saying that “mistake of counsel will not be visited on litigant” will not ameliorate the situation. In fact, this mistake destroys the entire proceedings. PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering The Leading Judgment): By a writ of summons dated the 6th of December, 2012, the Respondent who was Claimant filed an action against the Appellant wherein he sought for the following reliefs:
1. A DECLARATION that the Claimant is the person entitled to statutory right of occupancy to all that parcel of land situate, lying and being at Tudun Wada Area in dispute between the Claimant and the Defendant.
2. A DECLARATION that the continued encroachment on the land in dispute by the Defendant is an act of trespass.
3. AN ORDER of perpetual injunction restraining the Defendant, his agents, privies, heirs or assigns from further encroaching trespassing or committing an act on the land.
4.The sum of N100,000.00 as general damages for trespass.
5. The cost of this action.
It was the Respondent’s case that he purchased a land at Tudun Wada Area, Zuru local Government of Kebbi State from one Dogo Rikoto for N36.00 sometime in 1972, in the presence of one Alhaji Ruwa Majemi and one Tukur Mamman. The Respondent stated that fifteen years earlier, the wife of the Appellant approached him and begged him to allow her use a portion of the land for akara selling business which he agreed to.
However, in 2011 to his surprise, the Appellant started erecting a structure on the land, claiming that the land belongs to him. The Respondent protested against the building of the structure on the land and reported the matter to the Ministry of Land and Survey, Kebbi State, Zuru Local Government Area Office but the Appellant refused to heed to any of the advice and warnings.
Left with no other choice, the Respondent instituted the action before the High Court, Kebbi State.
It is the Appellant’s (who was the Defendant) case that he bought the said land in dispute from one Gambo Zuru also known as Gambo Isah Rikoto on the 5th of May, 1976 at the sum of N90.00. He also stated that his wife had been using a portion of the land for her akara business for 15 years undisturbed.
Appellant further claimed to be in active ownership and undisturbed enjoyment of the land since 1976 until when the Respondent started claiming ownership of the land.
At the trial, the Respondent called 3 (three) witnesses in proof of his claim while the Appellant called 4 (four) witnesses in his defence.
While delivering his judgment, the learned trial Judge, Justice Umar Abubakar held that it is an established principle of law that a party claiming declaration of title to land, statutory or customary right of occupancy has the option of establishing one of the five ways of proving ownership of land. The trial Judge stated that title can be established by proof of land adjacent to land in dispute and it was clear from the evidence before the Court that the land in question belonged to the Respondent. The Court granted reliefs 1, 2 and 3 sought and general damages of N50,000.
Dissatisfied with the judgment of the trial Court, the Appellant filed an Amended Notice of Appeal comprising of two grounds of appeal.
The Appellant’s counsel filed an amended Appellant’s brief of argument deemed on the 18th of November, 2020, settled by Hussaini Zakariyau Esq. In the said brief, a sole issue for determination was distilled thus:
Whether the originating process before the lower Court in suit no: KB/ZR/HC/11CV/2012 is competent and confer jurisdiction on the trial Court. (Distilled from Grounds 1 and 2 of the Amended Notice of Appeal)
The Appellant’s counsel has argued that it is the law as stated in the case of IKPEAZU VS. EKEAGBARA (2016) 40 W.R.N. PAGE 68 that an incompetent process is null and void ab initio. It cannot be amended.
It was further submitted that the Respondent had initiated the case before the trial Court vide a writ of summons dated 6th December, 2012 and that the said originating process was not signed.
The Appellant’s counsel further submitted that it is trite law that an originating process must be signed by an identified legal practitioner and that failure to so sign renders the process incompetent and cannot confer jurisdiction on the Court.
It was submitted that the lower Court cannot have jurisdiction over the matter as a result of the unsigned originating process. Thus, there was no case before the lower Court for it to have adjudicated upon as a defective writ of summons cannot confer jurisdiction on a Court and if a Court assumes jurisdiction in such case, any judgment or order emanating therefrom is null and void and liable to be set aside. On this point counsel referred to the case of KIDA VS. OGUNMOLA (2006) ALL FWLR (PT. 327) PAGE 402 AT 412.
This Court was urged to set aside the judgment of the lower Court as being incompetent as the trial Court lacked the jurisdiction to entertain the suit.
The Respondent’s counsel on the other hand filed an Amended Respondent’s Brief of Argument deemed on the 12th of January, 2021 and settled by Garba Abubakar Shehu Esq., in the said brief a sole issue for determination was distilled thus:
Whether the issue for determination formulated by the Appellant is competent for arising from the only ground of appeal on an issue that was not pronounced upon by the trial Court and no leave of the Court was sought and obtained before it was raised for the first time before this Honourable Court.
The Respondent’s counsel has argued that the issue of whether the originating process was signed or not was not raised at all at the trial Court and neither did the learned trial Judge make any pronouncement on it in the judgment being appealed against.
It was further submitted by Respondent’s counsel that the Appellant had simply sought for leave to file additional grounds of appeal without seeking for leave to raise a fresh issue not pronounced upon by the trial Court which rendered both the ground of appeal and issue distilled therefrom incompetent. The Respondent’s counsel then cited the Supreme Court case of SHETTIMA & ANOR VS. GONI & ORS (2011) LPELR 417 SC.
The Respondent’s counsel further cited the case of A.G ADAMAWA STATE & ORS VS. WARE & ORS (2006) LPELR–609 (SC) where it was held that it is settled law that it is incompetent to raise a fresh issue of law in appeal without leave.
Finally, it was submitted that since the entire appeal is predicated on this issue, this Court was urged to dismiss the entire appeal.
The Appellant’s counsel in response, filed the Appellant’s Reply Brief deemed on the 12th of January, 2021 and settled by Hussaini Zakariyau Esq.
The Appellant’s counsel has submitted that the issue of jurisdiction is so important as generally spelt out to have the exclusive preserve of being raised at any stage of the proceedings even on appeal or in the Supreme Court for the first time as long as there is a competent appeal before an Appellant can raise such issue. On this point, reference was made to the cases of ARUEZE VS. NWAUKONI (2019) 5 NWLR (PT. 1666) AT 472 and BOKO VS. NUNGWA (2019) 1 NWLR (PT. 1654) PAGE 407.
The Appellant’s counsel further argued that the Courts have in series of authorities decided that issues surrounding jurisdiction is in an exclusive province of its own and it can be raised without necessarily seeking leave from the Court.
This Court was urged to allow the appeal and grant judgment in favour of the Appellant.
RESOLUTION OF ISSUES
Having read and digested the briefs filed by respective counsel for the Appellant and Respondent herein, I hereby distill two issues for determination thus:
1. Whether the Originating process before the lower Court in suit no; KB/ZR/HC/11CV/2012 is competent and confers jurisdiction on the trial Court.
2. Whether the issue of jurisdiction can be raised successfully before this Court without leave being sought and obtained.
I shall however resolve and determine both issues together.
The Appellant in this instant appeal has raised the issue of jurisdiction. In fact, the entire appeal is based on the question of whether the trial Court had the jurisdiction to entertain the matter and deliver judgment despite the fact that the originating process i.e. the writ of summons was unsigned.
A question that must be answered is: what is jurisdiction in law and what are its ingredients?
In the case of SHITTA-BEY VS. ATTORNEY-GENERAL, FEDERATION (1998) 10 NWLR (PT. 570) PAGE 392, jurisdiction was defined as follows:
“it is the authority a Court of law has to entertain and decide a matter brought before it by litigants. It embraces every kind of judicial action be it criminal, civil and what nots. It is the power of Court to decide a matter in controversy and it presupposes the existence of a duly constituted Court with control over the subject matter and the parties.”
While the ingredients of jurisdiction exist where:
(a) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction.
(b) The Court is properly constituted as regards members and their requisite qualification and no member is disqualified for one reason or the other; and
(c) The case is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See the cases of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; SKENCONSULT (NIG) LTD VS. UKEY (1981) 1 SC 6; ISHOLA VS. AJIBOYE (1994) 6 NWLR (PT. 352) PAGE 506; WESTERN STEEL WORKS LTD VS. IRON AND STEEL WORKERS UNION (1986) 3 NWLR (PT. 30) PAGE 617 and ODOFIN VS. AGU (1992) 3 NWLR (PT. 229) PAGE 350.
In the Supreme Court case of ALIOKE VS. OYE (2018) 18 NWLR (PT. 1651) PAGE 247 AT PAGE 260 PARAS B, jurisdiction was defined per Bage JSC as:
“The law is settled that jurisdiction is a threshold or fundamental issue that can be raised anytime during the trial of a suit up to finality.”
Also, in the Supreme Court case of PDP VS. OKOROCHA & ORS (2012) 15 NWLR (PT. 1323) PAGE 205, it was held that:
“jurisdiction is visualized as the very basis on which any Court or Tribunal tries a case. It is the lifeline of all trials. Any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of a proceeding.”
The Respondent’s counsel has argued that the issue of whether the writ of summons was signed and competent was never raised at the trial Court and neither did the learned trial Judge make any pronouncement on it in the judgment being appealed against. Counsel had further argued that the Appellant ought to seek leave to raise the fresh issue of jurisdiction on appeal.
I will like to say that it is elementary law that jurisdiction can be raised at any time of a proceeding. In fact, it can be raised for the first time at the Supreme Court. In the case of APC VS. NDUUL & ORS (2017) LPELR–42415 (SC), the Apex Court held thus:
“…jurisdiction can be raised at any stage of the proceedings even on appeal up to the Supreme Court and in that regard, it is not mandatory that leave of Court be obtained before the issue of jurisdiction can be raised.”
Considering the paramount nature of jurisdiction, the issue of jurisdiction is taken as such that leave is not needed to raise it. Also because of its fundamental position, it can be brought up at any level of the proceedings even for the first time on appeal, whether at the Court of Appeal or Supreme Court. It would therefore be self-defeating, if there must be leave of Court before it can be raised.
Even though it is trite law that an appeal must be against the decision of the trial Court, the nature of jurisdiction is so distinct that it does not matter whether it was one of the many issues canvassed at the lower Court. All that is needed is that there is a competent ground of appeal bordering on the issue of jurisdiction.
Back to the issue of the competence of the writ of summons. What is the relevance of a signature on an originating process? A signature authenticates the process filed and if not signed by a legal practitioner or plaintiff, it is invalid as there is no stamp of authority. See the case of OKARIKA VS. SAMUEL (2013) 7 NWLR (PT. 1352) PG 19.
This Court reiterated the stance of the Supreme Court on guidelines on how Court processes are signed in the case of ALHAJI ISMAIL AGWARU JEN VS. SANUSI ADAMU LAU (2014) LPELR–24167 (CA) AT PAGES 20–21 PARA E – A thus:
“For the sake of guidance, all processes filed in Court, are to be signed as follows (a) The signature, which may be any contraption; b) The name of counsel clearly written; c) The party counsel represents; d) name and address of law firm.”
This is a mandatory requirement of the law and the failure to adhere to it results in the writ being deemed defective, null and void ab initio and incapable of invoking the jurisdiction of the Court. See the cases of BRAITHWAITE VS. SKYE BANK PLC (2013) 5 NWLR (PT. 136) PG 1; OKARIKA VS. SAMUEL (2013) 7 NWLR (PT. 1352) PG 19 AT 37; EWUKOYA VS. BUARI (2016) LPELR–40492 (CA); TANIMU VS. RABIU (2018) 4 NWLR (PT. 1619) PG 505; HERITAGE BANK LTD VS. BENTWORTH FINANCE (NIG) LTD DELIVERED BY THE APEX COURT ON 23RD FEBRUARY, 2018 and FIRST BANK OF NIG PLC VS. MAIWADA (2013) 5 NWLR (PT. 1348) PG 44.
The case of MADUKOLU VS. NKEMDILIM (SUPRA) sets guidelines for when a Court is robbed of jurisdiction, one of which is when an action is commenced by a faulty process, it deprives the Court of jurisdiction. The decision of the Supreme Court in OKARIKA VS. SAMUEL (2013) 7 NWLR (PT. 1352) is very apt thus:
“The authority of the case of MADUKOLU V. NKEMDILIM under reference (SUPRA), is very well positioned on the jurisdiction of a Court to adjudicate on a matter before it. The threefold condition which must be fulfilled are hereunder listed as apparent. In other words, the jurisdiction of a Court can only be exercised when:- (1) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; (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 the due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.”
The non-signing of a writ of summons is a fundamental issue that goes to the root of jurisdiction. Therefore, the issue of a defective writ is not negotiable as it is a jurisdictional point.
In the case of BRAITHWAITE VS. SKYE BANK PLC (SUPRA), the Court held that a writ of summons is an originating process by which actions are commenced. The competence of such process is a pre-requisite for a valid and subsisting claim. Where the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction thereon. Jurisdiction of a Court is constitutional. No Court can therefore confer jurisdiction upon itself nor can parties by their mutual agreement also confer any jurisdiction on a Court that lacks jurisdiction. A defective originating process cannot activate the Court’s jurisdiction. It is a statutory substantive requirement which cannot be cured by the provision in the rules of Court.
In the case of ALHAJI UMAR ALIYU TECHNICAL VS. FBN & ORS (2018) LPELR–44663 (CA) this Court held on the effect of failure to sign a writ of summons thus:
“It is perhaps important to first begin by disposing off the issue of failure of the Appellant as Plaintiff in the Court below to sign the writ of summons by which this action was commenced at the Court below as this deals with the question of the competence of the matter and by implication, the jurisdiction of the Court below in entertaining the case in the first place…A close examination of the said writ of summons shows that it was not signed either by the Appellant as Plaintiff or his Counsel… Anyways, the position at law is that an unsigned writ of summons is outrightly void and not even a subsequent Amended writ could effect a cure to it. It is void and remains void and nothing can be added to it. See NZOM & ANOR vs. JINADU (1987) 2 SC 205. The consequence of a void writ of summons is that the case it has acted as an initiating process remains incompetent and that this deprives the Court of the jurisdiction to entertain same. The position is that among other things, for a case to be competent it has to be initiated by due process of law as a condition precedent without which the Court cannot exercise its jurisdiction. See LADO vs. CPC (2011) 12 SCNJ 383.”
The effect of an unsigned initiating process was discussed by the Supreme Court in the case of OMEGA BANK NIG PLC VS. OBC LTD (2005) ALL FWLR (PT. 249) 1964 AT 1993, per Niki Tobi, JSC when he held:
“A document which is not signed does not have any efficacy in law. As held in cases examined, the document is worthless and a worthless document cannot be efficacious.” The failure therefore to commence proceedings with a valid writ of summons is an infraction, which clearly borders on the question of jurisdiction and the competence of the Court to adjudicate on the matter. See the case of BUHARI vs. ADEBAYO (2014) LPELR-22521 and KIDA vs. OGUNMOLA (2006) LPELR-1690 SC.”
From the above, it is clear that the act of not signing or signing of originating processes is taken seriously by the Court. Once an originating process is unsigned, it robs the Court of jurisdiction and any judgment that is delivered in such a case is null and void ab initio. This is not a matter of Courts sacrificing justice on technicalities. Lawyers cannot keep acting negligent and preparing shoddy processes and then raise the defence of technicalities. They have the legal obligation to pay proper attention when preparing processes for their clients. The saying that “mistake of counsel will not be visited on litigant” will not ameliorate the situation. In fact, this mistake destroys the entire proceedings.
I will also refer to the dictum of Fabiyi, JSC (Rtd) in the case of FIRST BANK VS. MAIWADA (2013) 5 NWLR (PT. 1348) AT PAGE 485 PAR F–G:
“I agree that the age of technical justice is gone. The current vogue is substantial justice. See DADA V DOSUNMU (2006) 12 PMSC 1115 (2006) 18 NWLR (PT 1010) 134. But substantial justice can be attained not by bending the law but by applying it as it is; not as it ought to be. There is nothing technical in applying the provisions of Section 2(1) & 24 of the Legal Practitioners Act as it is drafted by the legislature. The law should not be bent to suit the whims and caprices of the parties/counsel. One should not talk of technicality when a substantive provision of the law is rightly invoked.’’
In the case of ODEJAYI VS. HENLEY INDUSTRIES LTD (2013) LPELR–20368 this Court held thus:
“Where a writ of summons is not properly signed, it means the suit was not validly initiated and robs the Court of the jurisdiction to entertain the suit. A defective writ of summons is void ab initio. It is a nullity and cannot be amended. Indeed, all proceedings based on it are a nullity.’’
The Apex Court found itself in this situation in the case of OGUNSEINDE VS. SOCIETE GENERALE BANK LTD (2018) LPELR–43710 where it granted an amendment and later in the proceedings realized the error and wasted no time in admitting same and held that it was a dead process and cannot be amended. Once an originating process is defective then everything built on it will be affected and collapses like a pack of cards. It cannot stand. See MACFOY VS. U. A. C. (1961) 3 ALL ER 1169.
In the Supreme Court case of APGA VS. OYE & ORS (2018) LPELR – 45196 (SC), it was held that that jurisdiction is a threshold or foundational issue that can be raised anytime during the trial of a suit up to finality. Leave need not to be sought.
All the Appellant needs to do is to have a competent Notice of Appeal with a ground of appeal raising the issue of jurisdiction. Leave need not be sought and obtained.
I have looked at the writ of summons contained in the Record of Appeal and indeed, the writ of summons is unsigned. There is no signature endorsed by the legal practitioner who prepared the process. The reason for this, I do not know. Even though, the Appellant failed to raise this issue timeously, the law still gives him a right to raise it on appeal. Too bad this grievous mistake will cost the Respondent the victory he has already secured at the trial Court.
Having said this, the appeal succeeds. The judgment of the trial Court is hereby set aside as it is void ab initio on the grounds that the originating process was unsigned, and the suit is also hereby struck out. The appeal is allowed. There is no order as to cost.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading of the draft of the judgment just delivered by my learned brother, Idris, JCA. I fully agree with the conclusion that this appeal is meritorious. In allowing the appeal, I wish to add that an unsigned document is not capable of conferring any right or obligations and commands no judicial value of validity or any efficacy in law. See the decision in OMEGA BANK NIG. PLC. V. O. B. C. LTD (2005) 8 NWLR (PT. 928) 547. Also, in ATT. GEN. KWARA STATE V. ALAO (2000) 9 NWLR (PT. 671) 89 at 104, it was held in effect that the law is trite and well settled that an unsigned document is a worthless piece of paper and therefore incapable of conferring any rights or obligations on the party who created it and sought to rely on it. More specifically, with respect to Court processes that were not signed as required by the rules of Court such are not capable of activating the jurisdiction of the Court to adjudicate on the matter in which they were filed. The law always requires the person who purportedly signed any document to clearly and unambiguously identify himself. I abide by all the consequential orders of His Lordship in the lead judgment.
SAIDU TANKO HUSSAINI, J.C.A.: A document or process of Court which was used or relied on as an initiating process of Court is a worthless piece of paper in absence of any signature duly put in place to authenticate it as a valid document, cannot be acted on. My lord in the lead judgment has addressed this point at length with reference to several decisions of the apex Court and this Court. I endorse his reasoning and conclusion. Indeed, the case initiated at the Court below vide an unsigned Writ of Summons, was dead on arrival (DOA) hence, the authority of Court to act on it was thereby ousted for lack of jurisdiction. This appeal succeeds and the judgment delivered at the trial Court is hereby set aside.
Appearances:
N. HARUNA Esq. For Appellant(s)
G. A. SHEHU Esq. For Respondent(s)