LINUS DASWAR & ORS v. PATRICK DASHE DAPAM
(2019)LCN/13893(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of May, 2019
CA/J/198/2018
RATIO
THE IMPORTANCE OF ORIGINATING PROCESSES AND HOW THEY AFFECT THE COMPETENCE OF THE PROCEEDINGS THAT FOLLOW
There is no doubt the validity of Originating Process in a proceeding like Originating Summons, Writ of Summons, or notice of appeal is the sine qua non for the competent of the proceedings that follows it. SeeMadukolu Vs Nkemdilim (1962) 2 SCNLR 341 and Kente Vs Ishaku (2017) 15 NWLR (Pt. 1587) 94 at 118 paras. A-B. But where a process is not signed by a litigant or his Counsel, the process is invalid and the jurisdiction of the Court is ousted Okarika Vs Samuel (2013) 2 SCNJ 491. PER TANI YUSUF HASSAN, J.C.A.
SIGNATURE: PURPOSE AND WHO IS ALLOWED TO SIGN A LEGAL DOCUMENT AND WHAT ARE THE PROCESSES INVOLVED?
A signature is the act of signing or endorsing ones name on a document, it is usually a kind of contraption or distinctive mark indicating identity and when it is appended it authenticates a document S.P.D.C.N. Ltd Vs Ekosi (2016) 2 NWLR (Pt. 1496) 278 at 280. By Order 5 Rule 12(1) of the Plateau State High Court Civil Procedure Rules, 1987, it is mandatory that a Writ must be signed by a litigant or his legal representative. The provisions of Sections 2(1) and 24 of the Legal Practitioners Act are not ambiguous, if both sections are taken and read conjunctively, it is crystal clear that the signing of Court process must be by a known, named and identifiable person who must satisfy all the requirements contained in the Legal Practitioners Act to be entitled to practice law specifically or generally in Nigeria under the Legal Practitioners Act. See F.B.N.Plc Vs Maiwada (2013) 5 NWLR (Pt. 1348) 444. PER TANI YUSUF HASSAN, J.C.A.
WHO IS ENTITLED TO PRACTISE AS A LEGAL PRACTITIONER IN NIGERIA
Sections 2(1) and 24 of the Legal Practitioners Act provides thus:
2(1) 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 defines legal practitioner to be:
A person entitled in accordance with the provisions of this Act to practice as a barrister or a barrister and solicitor, either generally or for the purpose of any particular office proceeding.?
The Supreme Court in F.B.N Plc Vs Maiwada (supra) held that the only way to identify such a Legal Practitioner is to have his name reflected on the Court process issued. PER TANI YUSUF HASSAN, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
Between
1. LINUS DASWAR
2. DEBORAH JOHN DASWAR
3. AUGUSTINE DASOEM
4. MR. DATUGUN DANANG
5. LIVINUS DASHIP
6. MUSA DA’AM Appellant(s)
AND
PATRICK DASHE DAPAM
(Suing for himself and on behalf of Japjan Community Secondary School Namu) Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This appeal arose from the Ruling of Plateau State High Court delivered on the 27th day of March, 2018 by Hon. Justice I. I. Kunda in Suit No. PLD/J504/2017.
The Respondent as Plaintiff at the lower Court filed a Writ of Summons on the 24th day of August, 2017 claiming against the Appellants as Defendants, jointly and severally as follows:
1) A declaration of title to all that piece and parcel of land lying and situated in Namu town Langkaku road purchased via a sale agreement dated 3rd day of June, 2018 in favour of the Plaintiff.
2) A declaration that the school known and referred to as Jepjan Community Secondary School Namu was founded by the Plaintiff as such belongs to the Plaintiff.
3) An Order directing the Defendants to vacate and hand over possession of the Jepjan Community Secondary School Namu to the Plaintiffs who are the rightful owners of Jepjan Community Secondary School.
4) An Order directing the Defendants jointly and severally to produce the original establishment form/receipt which is in custody of the acting principal and to hand over same to the Plaintiff.
5) An order retraining the Defendants by themselves, their agents and privies from parading themselves in whatever capacities as the owners of Jepjan Community Secondary School.
6) An Order that the Defendants should account for the monies received as school fees and PTA levy from 2011 till date.
7) General damages in the sum of Ten Million Naira only (10,000,000.00) for Defendants act of conversion of the school to their own, mismanaging the school and dragging the school backward.
The Appellants upon being served with the Writ filed a memorandum of conditional appearance on the 27th of September, 2017 and a Notice of Preliminary Objection dated and filed on the 22nd of January, 2018. The Plaintiff/Respondent filed a Counter Affidavit to the Preliminary objection on the 15th of February, 2018.
?
Meanwhile the Defendants/Appellants have not filed their statement of defence despite adjournment of the case from 10th November, 2017 to 23rd of January, 2018 to enable them file their statement of defence. On the 16th of February, 2018 when the Preliminary Objection was taken, there was no statement of defence filed by the Defendants/Appellants.
The Preliminary Objection of the Defendants/Appellants was predicated on the following grounds:
1. The Writ of Summons in this case is dated 22nd day of August, 2017 and filed on the 24th day of August, 2017 being the Originating Process was not properly signed by the Plaintiff?s solicitors as require by law in that same was not sealed by the Plaintiff?s solicitors who signed it.
2. The law requires every process prepared by a legal practitioner to be sealed by the legal practitioner.
3. The Plaintiff/Respondent?s Writ as it is presently constituted is incompetent having not being initiated by due process of law.
The counter affidavit of the Plaintiff/Respondent having been filed out of time without leave of the Court, was discountenanced by the Court. The trial Court, on the 27th of March, 2018, in its considered Ruling refused the preliminary objection and dismissed same. The Ruling of the lower Court gave rise to this appeal. The appeal was commenced on the 9th of April, 2018 when the Appellants filed a notice of appeal anchored by two grounds of appeal with their particulars and reliefs sought.
In line with the Rules of Court, both parties filed, exchanged and adopted their respective briefs as follows ? Appellants? brief, Respondent?s brief and Appellants? reply brief.
The Appellants brief settled by Orifunmishe Vincent Esq. was dated and filed on the 27th of November, 2018, with a lone issue distilled for determination which reads:
Whether the Writ of Summons filed on the 24th day of August, 2017 before the lower Court with NBA seal in the name of Z. O. Umar ticked makes the said Writ competent.
The Appellant?s Reply brief was dated 4th day of January, 2019 and filed on the 10th of January, 2019.
The Respondent?s brief dated and filed on 28th December, 2018, also identified a lone issue for determination as follows:
Whether the Writ as can be seen on pages 1 to 3 of the printed record is competent same having been sealed and signed by Z. O. Umar Esq., a legal practitioner in the law firm of Dinak, P. C. Dinak and Associates.?
The lone issue raised by both parties are similar. I adopt the Appellants issue.
ISSUE ONE
Whether the Writ of Summons filed on the 24th day of August, 2017 before the lower Court with NBA seal in the name of Z. O. Umar ticked makes the said Writ competent.?
The argument of the Appellants? Counsel is that the Writ of Summon filed by the Respondent on the 24th day of August, 2017 is incompetent, having not been properly sealed by the Respondent?s solicitor as required by law. That the Writ of Summons issued and signed with the NBA seal in the name of Z. O. Umar ticked does not make the said Writ competent.
Learned Counsel posited that for the Writ to be competent, it must comply with the provision of Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007 and the combined effect of the decision in the cases of Sarkin Yaki Vs Bagudu (2015) SC 722 and Adeneye Vs Yaro (2013) 3 NWLR (Pt. 1342) 625 at 633 paras. B-C. That the rule requires that every process filed by Counsel in Court must be sealed with NBA stamp, failure of which the process will be deemed improperly signed or filed.
It is the submission of the Appellant?s Counsel that, P.C. Dinak Esq. whose name appeared on the Writ as the signatory did not seal the Writ of Summons as required by law. That the Writ of Summons has the name of P.C. Dinak Esq. immediately after the signature which by implication means the said P.C. Dinak Esq., signed same and Z.O. Umar Esq. practicing stamp was affixed. Counsel referred to pages 1-3 of the record to show that the Writ was signed by P.C Dinak Esq. and the Court owe no duty to embark on enquiry outside what was demonstrated before it. He also referred to paragraphs 6, 7 and 8 of the affidavit in support of the preliminary objection at pages 7-8 of the record which was unchallenged and deemed admitted. The Court was referred to Cameroon Airline Vs Otutuizu (2011) 4 NWLR (Pt. 1238) 512 at 545 para. F.
Learned Counsel for the Appellants contended that the finding of the trial Court that the name Z. O. Umar ticked is the name of the Counsel that signed the process is perverse as there is no evidence before the Court to that effect. That a junior Counsel signing a legal process or and on behalf of his senior or principal should clearly write his name below his signature and thereafter the name of others with an indication for, and not ticking.
Submitting further, that assuming but not conceding that it was Z. O. Umar that signed the Writ of Summons whose seal appeared on the Writ, the mode of signing is void and it is unacceptable in law. He relied on this submission on the cases of Adeneye Vs Yaro (supra); Edet Vs Chief of Air Staff (1994) 2 NWLR (Pt. 324) 41; Okafor Vs Nweke (2007) 10 NWLR (Pt. 1043) 521 and SLB Consortium Ltd Vs Nig. National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 at 337-338 paras. F-A, on proper requirement for signing of legal processes and submitted that the Respondent?s Writ falls short of the second and third requirement as provided in Petroleum Corporation (supra). Also referred on requirement of law with regard to signing of legal processes is Order 25 Rule 4(1) of the Rules of the High Court of Plateau State, 1987.
We are urged to resolve in favour of the Appellants and allow the appeal.
Responding, learned Counsel for the Respondent argued that a careful look at the Writ of Summons before the Court, it is sealed and signed by Z. O. Umar Esq., a junior counsel in the law firm of Dinak P.C. & Associates on behalf of P.C. Dinak Esq. That at page 3 of the record, Z.O. Umar whose signature appears on the Writ is ticked as the person who signed the Writ. Referring to Order 5 Rule 12(1) of Plateau State High Court Civil Procedure Rules, 1987, Rule 10(1), (2) and (3) of the Rules of Professional Conduct and the cases of First Bank Vs Maiwada and Adeniyi Vs Yaro (supra), it is submitted that the sealing and signing of the Writ by Z.O. Umar is proper and the Writ is competent having satisfied the conditions stated in SBL Consortium Ltd Vs National Petroleum Corporation (supra). That the decision in Sarkin Yaki Vs Bagudu (supra) relied upon by the Appellant is not applicable in this case. Relying on the case Anyanwoko Vs Okoye (2010) 1 SCNJ 148 at 152 holdings 2 and 3, it is submitted that it is untenable for the Appellant to contend that the sealing and signing of the Writ by Z.O Umar on behalf of P.C. Dinak Esq. has breached the rules of Professional Conduct for Legal Practitioners Act, 2007, thus depriving the Court of jurisdiction, when there is no rule breached in this case. That this appeal is a ploy to delay the trial a
