MTN (NIG) COMMUNICATIONS LTD v. AGBO
(2022)LCN/17141(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Wednesday, May 18, 2022
CA/MK/38/2019
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
MTN NIGERIA COMMUNICATIONS LIMITED APPELANT(S)
And
MR. OTANWA FRIDAY AGBO RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE ISSUANCE OF ORIGINATING PROCESSES
The issuance of an originating process such as a writ of summons, is the beginning of the proceedings and where by reason of failure by counsel or the plaintiff, as it were, to sign the said writ of summons, the failure shall nullify the proceedings.
As to what would constitute an irregularity, the same Order 5 Rule 1(2) of the Benue State High Court (Civil Procedure) Rules, 2007 provides thus:
Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give such direction as he thinks fit to regularize such steps.
Failure to sign signature cannot equate to be failure as to time, or place, or manner or form as to be treated as an irregularity. Rather, the failure to sign the writ of summons being the originating process is at the heart of any action. As an originating process, the writ of summons is meant to bring into being an action or a suit. If the said originating process is incapacitated by act of non-compliance with the mandatory pre-conditions of the law, then the action it will throw up will be nothing but a stillbirth. Therefore, the writ of summons has to be duly signed by the appropriate person id est the counsel or plaintiff and the signature duly verified and certified by the Registrar. The writ of summons herein in issue which was signed behind the Registrar, amounted to an alteration and or change effected to same without the necessary action to be performed by the Registrar. In SLB Consortium Ltd. vs. N.N.P.C. (2011) 9 NWLR Pt. 1252, pg. 317, 332, para. E., our revered Onnoghen, JSC., did enjoin Courts as follows:
It has been argued that non-compliance with the provisions of Order 26 Rule 4(3) supra is a mere irregularity which had been waived as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of Madukolu vs. Nkemdilim (supra). That apart, the provisions of the Legal Practitioners Act, 1990, are statutory and therefore matters of substantive law which cannot be waived. The provisions of the Rules of Court involved herein are, by the wordings, mandatory not discretionary.
See also the authorities of Okafor vs. Nweke (2007) 10 NWLR Pt. 1043, pg. 521; and Min. of Works & Transport, Adamawa State vs. Yakubu (2013) 6 NWLR Pt. 1351, pg. 481, where the apex Court held that failure to sign an originating process renders same fundamentally defective, and legally non-existent which defect cannot even be cured by an amendment. The position in the instant appeal is quite distinguishable from where the writ of summons was signed however, by a person whose name has not been enrolled at the Supreme Court to practice law in Nigeria as was the case in Okafor vs. Nweke (supra). PER JOMBO-OFO, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This is a judgment against the decision of the High Court of Justice, Benue State (hereafter the lower/trial Court) presided over by Hon. Justice M. A. Ikpambese, J., delivered 22nd December, 2017 in suit No. MHC/136/17.
The plaintiff at the trial Court who herein is the respondent, had by a writ of summons issued 22nd March, 2017 and statement of claim filed same day claimed, as follows against the defendant who is the appellant herein:
23. (a) A DECLARATION that the blockage of the plaintiff’s MTN line, 08036361204 which the plaintiff obtained from the defendant sometimes in the year 2005 or 2006 and which he has been using consistently since then except for the eight days he travelled to Cameroun was based on negligence.
(b) A DECLARATION that the welcoming and ceding of the plaintiff’s MTN line, 08036361204 which the plaintiff obtained from the defendant sometimes in the year 2005 or 2006 and has been utilizing to an unknown person by the defendant without confirming the data in their systems constitutes grave negligence and insensitivity to the duty of care owed the plaintiff, an esteemed customer.
(c) A DECLARATION that the blocking of the plaintiff’s MTN line 08036361204 which the plaintiff obtained from the defendant sometimes in the year 2005 or 2006 and using its network to withdraw the funds in the account of the plaintiff and sending the alert into the unknown number welcomed by the defendant constitutes a breach of care and kingship status of a customer in the world of business.
(d) AN ORDER of the Honourable Court compelling the defendant to refund the sum of two hundred thousand, four hundred and twenty thousand naira negligently or fraudulently withdrawn from the plaintiff’s fidelity account using the network of the defendant.
(e) AN ORDER of perpetual injunction restraining the defendant from further tempering (sic) with the account of the plaintiff or from doing anything negligently to the MTN line of the plaintiff.
(f) SPECIAL DAMAGES of Two Hundred and Fifty Thousand [N250,000] Naira only representing legal consultancy fees and the advanced payment for the prosecution of this suit.
(g) GENERAL DAMAGES of Twenty Million Naira [N20,000,000.00] only on punitive and exemplary footing for the psychological trauma, commercial stagnation, erosion of reputation and societal disgrace the plaintiff suffered as a result of the defendant’s unwarranted, mischievous, negligent blocking of the plaintiff MTN line and ceding it to another.
(h) THE COST of prosecuting this suit assessed at 20% of the judgment sum.
(i) AN ORDER of 10% post judgment interest until the judgment sum is defrayed. (See pages 7 – 8 of the record of appeal).
On 10th April, 2017, the defendant filed a Notice of Preliminary Objection No. MHC/761M/17 pursuant to Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999 (the Constitution), Section 138 of the Nigerian Communications Act (NCA), Chapter N97 Laws of the Federation of Nigeria, 2004, and Order 6 Rule 2(3), Order 39 Rule 1 of the Benue State (Civil Procedure), praying the Court for:
AN Order striking out this Suit for want of Jurisdiction.
The Grounds for the Objection include:
1. The Writ of Summons issued is fundamentally defective and therefore incompetent.
2. By virtue of Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999, Chapter C23 Laws of the Federation of Nigeria, 2004 (the 1999 Constitution) and Section 138 of the Nigerian Communications Act, Chapter N97 of the Laws of the Federation of Nigeria (the NCA), the Benue State High Court lacks the jurisdictional competence to hear and determine this Suit.
Particulars
1. By Section 251(1) of the 1999 Constitution the Federal High Court can, by an Act of the National Assembly, be conferred with the exclusive Jurisdiction to hear and determine any subject matter not listed in the said Section 251(1)(a) to (s).
2. Section 138 of the NCA confers on the Federal High Court “exclusive Jurisdiction over all matters, suits and cases howsoever arising out of or pursuant to or consequent upon…” the NCA.
3. The subject matter of this Suit being complaints relating to connectivity and the network service provided for the Plaintiff/Respondent arises from the NCA. (See pages 24 – 25 of the record of appeal).
The defendant/objector also filed his written address in support of the preliminary objection, while the learned counsel for the plaintiff filed their written address in opposition to the objection on 10th May, 2017.
In his considered ruling/judgment delivered 22nd December, 2017, the learned trial Judge dismissed the defendant/objector’s Notice of Preliminary Objection. (See pages 49 – 51 of the record of appeal). Dissatisfied with the decision, the defendant/objector (hereinafter the appellant), filed a Notice of Appeal against the ruling at the lower Court on 7th February, 2019. (See pages 52 – 56 of the record of appeal).
The record of appeal was compiled and transmitted to this Court on 15th March, 2019. Appellant’s brief of argument settled by Ndubuisi Ogbonnaya, Esq., was filed 11th April, 2019. Despite service of the said brief of argument on the plaintiff/respondent through one Joel Tatyogh, Esq. on 12th April, 2019, they failed to file respondent’s brief of argument. Consequently, the appeal was heard and determined solely on the appellant’s brief of argument. From the 6 (six) grounds of the Notice and Grounds of Appeal, the appellant formulated the following two issues for determination:
1. Whether having found that the Writ of Summons in this suit was not signed, the lower Court was right in holding that the error/failure was a mere irregularity and in further directing the Plaintiff’s Counsel to sign the writ of summons? (Grounds 1, 2 and 3).
2. Whether the subject matter in this suit falls within the exclusive jurisdictional purview of the Federal High Court in view of the express provisions of Section 138 of the NCA. (Grounds 4, 5 and 6).
ISSUE 1 (ONE)
Whether having found that the Writ of Summons in this suit was not signed, the lower Court was right in holding that the error/failure was a mere irregularity and in further directing the Plaintiff’s Counsel to sign the writ of summons?
In arguing this issue, the appellant while relying on some cases, submitted that failure to sign the Writ of Summons as duly confirmed by the lower Court is not a mere irregularity that can howsoever be cured. See Order 5 Rule (1) and (2) and Order 6 Rule 2(3) of the Benue State High Court (Civil Procedure) Rules, 2007. Learned counsel contended that only omissions as to time (like filing out of time) or omissions as to place (like filing in the wrong Judicial division), or manner (like adopting the wrong procedure or approach), or form (like bringing a suit by summons which ought to have been brought by Writ or like noncompliance with standard forms), will constitute an irregularity. Counsel canvassed that nothing in the said rules would indicate that a failure to sign a writ of summons or any other originating process by the Plaintiff or his Counsel can be treated as a mere irregularity.
RESOLUTION OF ISSUE 1 (ONE)
It was the clear findings of the lower Court that:
It is not in doubt that the plaintiff or his counsel did not sign the writ. However, the application for writ of summons and the statement of claim are signed by Emmanuel Ominyi, Esq., on 21st day of March, 2017.
The issue here is whether the plaintiff or his counsel and not whether his name is on the Supreme Court Roll. Emmanuel Ominyi readily supplied his number in the Supreme Court Roll as SCN065441.
It is agreed that counsel affixed his practice seal/stamp on the first page of the writ of summons but did not sign in the signature column of page 1 of the writ of summons.
The case of Okafor vs. Nweke (2007) NWLR Pt. 1043, pg. 521 where a process was signed and under the signature was written “J. H. C. Okolo SAN & Co.” does not apply to the set of facts in the instant case. This is because J. H. C. Okolo SAN & Co. is not a legal practitioner and cannot practice by filing processes.
In the instant case, Emmanuel Ominiyi, Esq. omitted to sign the writ and the objection is timeously raised. It is, however, an irregularity since the application for the writ of summons and statement of claim are signed. In the light of the above, the plaintiff’s counsel, Emmanuel Ominiyi, Esq. shall sign the writ of summons which is the last column/line in page 1 of the originating process.[(See page 50 of the record of appeal). Underlining supplied for emphasis].
The mere fact that the writ of summons as duly found by the learned trial Judge, was not signed ab initio, is enough reason for the trial Court to strike out the writ of summons. This is in view of the mandatory provisions of Order 6 Rule 2(3) of the Benue State High Court (Civil Procedure) Rules, 2007 which reads thus:
(3) Each copy shall be signed by the Legal Practitioner or by a plaintiff where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed. (Underlining mine for emphasis).
Given the underlined word “shall” in the foregoing, it is clear that there are no two ways about it that the writ of summons must be signed by counsel or plaintiff at the point of issue and not in the open Court as the learned trial Judge out of his magnanimity allowed to happen. Signing the writ of summons inside the Court hall as ordered by the learned trial Judge, and behind the Registrar is contrary to the foregoing Order 6 Rule 2(3) (supra). This is because the Registrar would be shut out of his responsibility of verification and certification of the process as prescribed by the said Order 6 Rule 2(3) supra. The word “shall” as it appears therein, makes it obligatory for counsel or the plaintiff as the case may be, to sign and the Registrar to verify and certify the signature on the writ of summons to be that of the signatory. Since the writ of summons was not signed in the presence of the Registrar, there is no way he can vouch or certify that the said signature is that of the learned Emmanuel Ominyi, Esq. of counsel.
The failure of counsel to sign the writ of summons, irrespective of the fact that he signed the statement of claim as found by the lower Court does not bring it within the ambit of mere irregularity. As rightly submitted by the learned counsel for the appellant, it is unheard of that a process already issued, filed and served is returned to the plaintiff for any form of alteration without a proper application and/or a concurrence of both parties in the suit. This is in sync with the provisions of Order 5 Rule 1(1) of the Benue State High Court (Civil Procedure) Rules, 2007 which states as follows:
Where in beginning or purporting to begin any proceeding there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure shall nullify the proceedings.
The issuance of an originating process such as a writ of summons, is the beginning of the proceedings and where by reason of failure by counsel or the plaintiff, as it were, to sign the said writ of summons, the failure shall nullify the proceedings.
As to what would constitute an irregularity, the same Order 5 Rule 1(2) of the Benue State High Court (Civil Procedure) Rules, 2007 provides thus:
Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give such direction as he thinks fit to regularize such steps.
Failure to sign signature cannot equate to be failure as to time, or place, or manner or form as to be treated as an irregularity. Rather, the failure to sign the writ of summons being the originating process is at the heart of any action. As an originating process, the writ of summons is meant to bring into being an action or a suit. If the said originating process is incapacitated by act of non-compliance with the mandatory pre-conditions of the law, then the action it will throw up will be nothing but a stillbirth. Therefore, the writ of summons has to be duly signed by the appropriate person id est the counsel or plaintiff and the signature duly verified and certified by the Registrar. The writ of summons herein in issue which was signed behind the Registrar, amounted to an alteration and or change effected to same without the necessary action to be performed by the Registrar. In SLB Consortium Ltd. vs. N.N.P.C. (2011) 9 NWLR Pt. 1252, pg. 317, 332, para. E., our revered Onnoghen, JSC., did enjoin Courts as follows:
It has been argued that non-compliance with the provisions of Order 26 Rule 4(3) supra is a mere irregularity which had been waived as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of Madukolu vs. Nkemdilim (supra). That apart, the provisions of the Legal Practitioners Act, 1990, are statutory and therefore matters of substantive law which cannot be waived. The provisions of the Rules of Court involved herein are, by the wordings, mandatory not discretionary.
See also the authorities of Okafor vs. Nweke (2007) 10 NWLR Pt. 1043, pg. 521; and Min. of Works & Transport, Adamawa State vs. Yakubu (2013) 6 NWLR Pt. 1351, pg. 481, where the apex Court held that failure to sign an originating process renders same fundamentally defective, and legally non-existent which defect cannot even be cured by an amendment. The position in the instant appeal is quite distinguishable from where the writ of summons was signed however, by a person whose name has not been enrolled at the Supreme Court to practice law in Nigeria as was the case in Okafor vs. Nweke (supra). Of importance in this regard is the decision of this Court in Buhari vs. Adebayo (2014) 10 NWLR Pt. 1416, pg. 560, per my noble brother Akeju, JCA., where he held as follows:
The writ of summons that originated the appellant’s suit was not properly signed by a legal practitioner known to law and it is properly struck out by the learned trial Judge, the immediate consequence of which is that the foundation of the action does not exist and so the suit was properly struck out based on the principle that no one can place something upon nothing, MacFoy vs. UAC (2006) 16 WRN 185 (sic); the totality of which is that appellants’ suit lacks competence having not been initiated by due process of law, Madukolu vs. Nkemdilim (1962) 1 All NLR 357, (1962) 2 SCNLR2 41.
The bottom line of this appeal is that the writ of summons preceding the action that yielded the instant appeal was not signed at all, neither the name and/or mark of a Legal Practitioner visible on the face of it. Also, the fact that counsel affixed his stamp/seal on the said writ of summons does not cure the apparent defect of the process. Thus, the attempt by the learned trial Judge to amend the totally fractured process with the fact that Emmanuel Ominyi, Esq. of counsel was properly enrolled at the Supreme Court does not arise. At the end of the day, the question whether having found that the Writ of Summons in the suit was not signed, the lower Court was right in holding that the error/failure was a mere irregularity and for which he further directed the Plaintiff’s counsel to sign the said Writ of Summons in the face of the lower Court, is answered in the negative. The Writ of Summons had by that omission become invalidated or voided for being incurably defective. The lower Court was bereft of the necessary jurisdiction to meddle with the Writ of Summons by trying to cure such an incurable defect. Being a dead process on arrival, all that the learned trial Judge had to do in the circumstances, was to strike out the Writ of Summons.
Be that as it may, our revered Nweze, JSC., in the case of Dr. Okey Ikechukwu vs. Fed. Rep. of Nigeria & 2 Ors. (2015) 7 NWLR Pt. 1457, pg. 1 at 21, paras. D-G., has enjoined as follows in the leading judgment:
As a general rule, an intermediate Court, like the Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus, for example, where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. In this case the Court of Appeal upheld the 1st Respondent’s Preliminary Objection to the competence of the appellant’s appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the argument in support of the issues for determination distilled by the parties to the appeal. [F.M.H. vs. C.S.A. Ltd. (2009) 9 NWLR Pt. 1145, pg. 193; Brawal Shipping (Nig.) Ltd. vs. F. I. Onwadike Co. Ltd. (2000) 11 NWLR Pt. 678, pg. 387; Adeogun vs. Fasogbon (2011) 8 NWLR Pt. 1250, pg. 427; Ovunwo vs. Woko (2011) 17 NWLR Pt. 1277, pg. 522; F.C.D.A. vs. Sule (1994) 3 NWLR Pt. 332, pg. 257; Ifeanyi Chukwu (Osondu) Co. Ltd. vs. Soleh Boneh (Nig.) Ltd. (2000) 5 NWLR Pt. 656, pg. 322; NEPA vs. Ango (2001) 15 NWLR Pt. 737, pg. 625; Uwazurike vs. A-G., Federation (2007) 8 NWLR Pt. 1035, pg. 1 referred to.]
Regarding the proper order to make where the Court finds it lacks jurisdiction, the apex Court went on in Dr. Okey Ikechukwu (supra) to hold thus:
Where a Court finds that it lacks jurisdiction, the appropriate order it should make is one striking out the matter. In this case, the Court of Appeal was right when it refused to consider the issues formulated by the parties, and struck out the appeal after it upheld the 1st respondent’s preliminary objection to its jurisdiction. [Hambe vs. Hueze (2001) 4 NWLR pt. 703, pg. 372; Onyemah vs. Egbuchulam (1996) 5 NWLR pt. 448, pg. 255; NEPA vs. Ango (2001) 15 NWLR Pt. 737, pg. 627 referred to.)
Leaning on the foregoing authority and taking cognizance of the fact that the lower Court failed to do the needful, which is to strike out the action for non-compliance with a veritable pre-condition, I shall pursuant, to the provisions of Section 15 of the Court of Appeal Act (as amended), order that the Writ of Summons issued 22nd March, 2017 in suit No. MHC/136/2017 shall be struck out and it is so struck out. Furthermore, issue 2 (two) as raised for determination is hereby rendered otiose and of no moment. Issue 2 (two) is likewise struck out.
The resultant effect is that the appeal by the defendant/appellant is imbued with merit and therefore allowed. On the whole the ruling of the High Court of Benue State in suit No. MHC/136/2017, per Hon. Justice M. A. Ikpambese, J., delivered 22nd December, 2017 is hereby set aside.
Appeal succeeds.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading the draft judgment of my learned brother Hon. Justice C. Ifeoma Jombo-Ofo, JCA, I have nothing to add to the well researched Judgment which I adopt as mine.
The resultant effect is that the appeal by the Defendant/Appellant is imbued with merit and therefore allowed.
MUSLIM SULE HASSAN, J.C.A.: I read in advance the lead judgment of my learned brother CORDELIA IFEOMA JOMBO-OFO, JCA, just delivered whose reasoning and conclusion therein I hereby adopt as mine in allowing the appeal. This appeal is meritorious and is hereby allowed, the judgment of the lower Court delivered on 22nd day of December, 2017 is hereby set aside.
Appearances:
Ndubuisi Ogbonna, Esq., with him, Esther Onoja, Esq. For Appellant(s)
Respondent was served Hearing Notice on 11th February, 2022 through counsel Emmanuel Ominyi, Esq. on tel. Nos. 0706 507 2443. The record of appeal was served on the said respondent on 4th March, 2019, while the appellant’s brief was served on them through one Joel Tatyogh, Esq. on 12th April, 2019 For Respondent(s)
