WEMA BANK PLC v. TOKELAT FISHING INDUSTRIES LTD & ANOR
(2022)LCN/16611(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, February 10, 2022
CA/L/1169/2017
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Between
WEMA BANK PLC APPELANT(S)
And
1. TOKELAT FISHING INDUSTRIES LIMITED 2. WEMA SECURITIES & FINANCE PLC RESPONDENT(S)
RATIO
WHETHER OR NOT COURT PROCESSES FILED BY A LEGAL PRACTITIONER MUST BE SIGNED BY THE LEGAL PRACTITIONER
By the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation 2004, a legal practitioner who can, within the meaning of the relevant Rules of Court, validate a Court process, whether writ of summons, notice of appeal, statement of claim or statement of defence, must be a named legal practitioner whose name is on the Roll of Legal Practitioners in the Supreme Court of Nigeria, registered to practice as a Barrister and Solicitor in this Country. These provisions have received frequent and consistent judicial interpretation such that it is now well settled that a process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner. A foremost authority was the case of Okafor v. Nweke (supra), (2007) LPELR-2412(SC). PER OTISI, J.C.A.
THE POSITION OF THE LAW ON THE TWO TYPES OF JURISDICTION
Jurisdiction is a question of law.
There are two types of jurisdiction.
1. Jurisdiction as a matter of procedural law.
2. Jurisdiction as a matter of substantive law. A litigant may waive the former.
Again in Appeal No: SC.175/2005 Heritage Bank Ltd v Bentworth Finance (Nigeria) Ltd decided by this Court on 23rd February, 2018 Eko J.S.C. explained the distinction between substantive jurisdiction and procedural jurisdiction.
The law is very well settled that counsel may waive a defect in procedure which is procedural law.
What is waiver and what are the consequences when counsel waives his right?
Waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile and complain of what he has waived. Put in another way, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. See Ariori & Ors v Elemo & Ors (1983) 14 NSCC P.1; Chief John Eze v Dr. C.I. Okechukwu & 7 Ors (2002) 14 SCM p.105. PER OTISI, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION AS THE FOUNDATION OF THE COURT
The issue of jurisdiction is always a threshold and foundational issue to the competence of the action, as well as of the Court to entertain the action; Utih v Onoyivwe (1991) LPELR-3436(SC). It is well settled that for a Court to be competent to assume jurisdiction, the following three conditions must be satisfied:
(a) The Court must be properly constituted as regards number and qualification of members of the bench.
(b) The subject matter of the case must be within the jurisdiction of the Court.
(c) The case must come before the Court initiated by one process of law and upon fulfillment of all condition precedent to the exercise of the jurisdiction. PER OTISI, J.C.A.
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The Appellant lodged this appeal against the decision of the High Court of Lagos State, Ikeja Judicial Division Coram O.A. Dabiri, J., delivered on February 13th, 2017 in favour of the 1st Respondent.
The facts leading to this appeal can be summarized in this manner: At all material times the 1st Respondent was a customer of the Appellant Bank, in which it maintained a current account No. 7040002714 with the Appellant’s Oshodi branch, and other accounts with the Appellant’s International Banking Division. In the course of their relationship as banker/customer, the Appellant advanced credit facilities to the 1st Respondent.
Disputes arose between Appellant and 1st Respondent over allegations of the 1st Respondent that its accounts had been mismanaged and wrongly debited by the Appellant for transactions that did not take place. The 1st Respondent alleged that its indebtedness to the Appellant was less than the amount claimed by the Appellant. The 1st Respondent, as claimant, consequently commenced action by way of Writ of Summons and Statement of Claim in which it sought, inter alia, a declaration that its level of indebtedness to the Appellant was less than the amount demanded by the Appellant.
In the course of hearing, the 1st Respondent amended its Writ of Summons and Statement of Claim on 10/9/2002, 20/5/2003, and on 8/4/2004. While the 2nd Amended Statement of Claim of 20/5/2003 was signed by A. J. Owonikoko, Esq (now SAN), the Appellant alleged that the Amended Statement of Claim of 10/9/2002 and 3rd Amended Statement of Claim of 8/4/2004 were signed on behalf of Chief Tunde Olojo and A. J. Owonikoko, respectively, by persons whose names or identities were undisclosed.
The Appellant, as 1st defendant before the lower Court, filed a Statement of Defence and Counter-Claim to the 1st Respondent’s Originating Processes, denying the claims of the 1st Respondent. The case of the Appellant was that the 1st Respondent maintained various accounts with the Appellant, which enjoyed credit facilities, and which were secured with Deed of Legal Mortgage on the 1st Respondent’s property. The 1st Respondent defaulted in its repayment obligations on the facility. Despite several demand letters, the repayment obligations were not met. The Appellant counter-claimed for the sum of N250,000,000.00, said to be the sum owed by the 1st Respondent to the Appellant. At the conclusion of hearing, the learned trial Judge, on 13/2/2017, entered judgment in favour of the 1st Respondent and dismissed the Appellant’s Counter-Claim.
Aggrieved by the decision of the lower Court, the Appellant lodged this appeal by two Notices of Appeal dated 20/2/2017 and 10/5/2017. At the hearing of the appeal on 24/11/2021, the Appellant withdrew the Notice of Appeal dated 20/2/2017, which is hereby struck out. The appeal was argued on the Notice of Appeal, filed on 10/5/2017, on ten grounds of appeal, pages 2194–2204, Vol. 5 of the Record of Appeal. The 1st Respondent filed a Notice of Cross Appeal on 8/2/2021.
The parties filed Briefs of Argument, pursuant to the Rules of this Court. The Appellant’s Amended Brief was filed on 23/3/2021 but deemed on 23/6/2021. The 1st Respondent/Cross Appellant’s Amended Brief was filed on 25/6/2021, while the Appellant’s Reply/Cross Respondent’s Brief was filed on 19/7/2021. The 1st Respondent/Cross Appellant’s Reply Brief was filed on 10/9/2021 but deemed properly filed and served on 24/11/2021. The 1st Respondent/Cross Appellant also filed an Additional List of Authorities on 24/11/2021.
At the hearing of the appeal on 24/11/2021, the Briefs were respectively adopted by Professor Taiwo Osipitan, SAN, for the Appellant/Cross Respondent, with Dr. S.A. Adesanya, and by A.J. Owonikoko, SAN for the 1st Respondent/Cross Appellant, with O. Keshinro, Esq. While Professor Osipitan, SAN, urged the Court to allow the appeal and dismiss the cross appeal, Mr. Owonikoko, SAN, in turn, asked the Court to dismiss the appeal and allow the cross appeal. Michael Omorodion, Esq. appeared for the 2nd Respondent, which had filed no Brief and had no argument to urge on the Court.
Substantive Appeal
The Appellant distilled five issues for determination of the main appeal:
i. Whether learned trial Judge rightly or wrongly assumed jurisdiction over the 1st Respondent’s Suit: GROUNDS 3 & 9
ii. Whether Learned trial Judge rightly or wrongly awarded subsumed general and special damages in favour of the 1st Respondent: GROUNDS 1, 2 & 4
iii. Whether Learned trial Judge rightly or wrongly held the Appellant liable for negligently and recklessly mismanaging the account of the 1st Respondent: GROUNDS 4 & 5.
iv. Whether Learned trial Judge rightly or wrongly held that the Appellant negligently and maliciously managed the 1st Respondent’s account as a basis for the award of damages: GROUNDS 6, 7
v. Whether Learned trial Judge rightly or wrongly dismissed Appellant’s Counter-Claim. GROUND 10
For the 1st Respondent, the following issues were submitted for determination of the appeal:
1. Whether, based on technical objection raised for the first time on appeal by Appellant as regards manner of appending counsel’s signature on the last amended Statement of Claim; the trial Court had the requisite jurisdiction to entertain the 1st Respondent’s action on which Appellant also filed and prosecuted its dismissed Counter-Claim. (Grounds 3 and 9 of Appellant’s Notice of Appeal).
2. Whether, in light of the totality, weight and credibility of the evidence proffered by parties, trial Court rightly held Appellant liable for breach of its contractual duties to the 1st Respondent on which basis Appellant was ordered to reimburse wrong debit and unreflected credit postings against 1st Respondent’s accounts and compensate it in damages for the injury thereby occasioned 1st Respondent (Grounds 1, 2, 4, 5, 6, 7 and 8 of Appellant’s Notice of Appeal).
3. Whether there was sufficient evidence before the trial Court in proof of the Appellant’s Counter-Claim (Ground 10 of Appellant’s Notice of Appeal)
The issues formulated by the 1st Respondent are subsumed in the issues as framed by the Appellant. I shall adopt the issues as formulated by the Appellant in determining this appeal, commencing from Issue 1 in which the issue of jurisdiction has been raised.
Issue 1.
The Appellant raised jurisdictional issues of competence of the 1st Respondent’s pleadings, as well as non-disclosure of reasonable cause of action by the 1st Respondent in its Statement of Claim. The originating processes of the writ of summons and statement of claim were signed by Chief Tunde Olojo. On 10/9/2002, the Statement of Claim was amended. The Appellant contended that the identities of the persons who signed the 1st Amended Statement of Claim dated 10/9/2002, as well as the 3rd Amended Statement of Claim dated 8/4/2004 on behalf of Messrs Olojo and Owonikoko respectively were unknown. That although Chief Olojo’s name appeared as Counsel on the 1st Amended Statement of Claim, it was not signed by him but on his behalf by a person whose identity was not disclosed. Without the name of the person who signed the 1st Amended Statement of Claim on behalf of Chief Olojo, the Court is left to speculate on the signatory’s identity. It was submitted that where the name of the signatory of a process or where the name of a person who signs a process on behalf of a legal practitioner is not evident on the process, the process is incompetent null and void, citing Peak Merchant Bank Plc v NDIC (2011) 12 NWLR (PT. 1261) 253 at 262; MTN (Nig.) Comm. Ltd v C.C. Inv. Ltd (2015) 7 NWLR (Pt. 1459) 437 at 465; Ewukoya & Anor v. Buari & Ors (2016) LPELR-40492 (CA); Okafor v Nweke (2007) 10 NWLR (PT. 1043) 521; Kuranga & Ors v. George & Anor (2015) LPELR-25977 (CA).
Senior Counsel for the Appellant argued that although the Statement of Claim was further amended on 20/5/2003 and 8/4/2004 respectively, these amendments did not cure the inherent defect of the 1st Amended Statement of Claim dated 10/9/2002, in line with the principle of law that one does not put something on nothing and expect it to stand. It was submitted that where the 1st Amended Statement of Claim of 10/9/2002 was incompetent and void, it was incapable of being amended. Reliance was placed on the decision in Nasiru v Bindawa (2006) 1 NWLR (PT. 961) 355 at 373; Macfoy v UAC (1961) 3 ALL ER 1169 at 1172. The judgment of the lower Court being based on the 3rd Amended Statement of Claim of 8/4/2004, which was traceable to the void Amended Statement of Claim of 10/9/2002, the Court was urged to hold that where the judgment of the lower Court was based on an incompetent process, the judgment was void and liable to be set aside. The decisions in E.B.N. Ltd v Halilco (Nig) Ltd (2006) 7 NWLR (Pt.980) 568 at 585; S.L.B. Consortium Ltd v NNPC (2011) 9 NWLR (PT. 1252) 317 at 336 were cited and relied on.
It was further contended that the 3rd Amended Statement of Claim of 8/4/2004 was also void because the name of the person who signed same on behalf of A. J. Owonikoko, Esq (now SAN) was not disclosed in the said 3rd Amended Statement of Claim. Judgment of the lower Court was entered on the said 3rd Amended Statement of Claim of 8/4/2004, which, as argued, was void on these two distinct grounds. Senior Counsel posited that the Appellant was entitled to have the said judgment of the lower Court set aside on these grounds.
The Court was invited to compare the original Statement of Claim dated 21/6/2000, and the 3rd Amended Statement of Claim, which would show that with the exception of N27,158,610.09 claimed as unauthorised transfer/debit, all the other claims in respect of which judgment was entered against the Appellant in the 3rd Amended Statement of Claim were missing from the original Statement of Claim. All the specific claims/awards of N489,742,645.53, N32,500,000.00, N3,748,852.46, N6,062,401.76 and consolidated special and general damages of N505,000,000.00 were not in the original Statement of Claim, in which the Respondent had only claimed general damages of N205,000,000, there was no claim for loss of profit. All the new heads of damages claimed and awarded in 1st Respondent’s favour were based on the 3rd Amended Statement of Claim dated 8/4/2004, which was invalid. The Court was urged hold that the judgment of the lower Court, was a nullity, being based on an incompetent process.
The Appellant further argued that the 1st Respondent failed to disclose a reasonable cause of action against the Appellant in the Amended Statement of Claim. It was common ground that a banker and customer relationship existed between the Appellant and the 1st Respondent. It was also common ground that the 1st Respondent enjoyed credit facilities which it was availed by the Appellant, leading to a creditor and debtor relationship between the Appellant and the 1st Respondent. The 1st Respondent, which sought to use the machinery of the Court to determine her quantum or level of indebtedness to the Appellant, had disclosed no reasonable cause of action.
Senior Counsel for the Appellant referred to the reliefs sought by the 1st Respondent. The principal relief in the lower Court was a declaration that the sum of N201,316,859.78 was not the exact amount which the 1st Respondent owed the Appellant. The 1st Respondent then claimed consequential reliefs of an Order appointing an independent and reputable firm of auditors to audit its account with the Appellant. It was posited that, from the principal relief, the 1st Respondent was not disputing its status as the Appellant’s debtor. The Appellant had argued in the lower Court that since the 1st Respondent sought a declaration that the amount claimed by the Appellant was not the exact amount it owed the Appellant, but was unable to state the amount it owed the Appellant, the 1st Respondent had not disclosed a reasonable cause of action against her. As such, 1st Respondent’s claim should be dismissed. The learned trial Judge rejected this argument to hold that since there was a contract of Banker and Customer relationship between Appellant and 1st Respondent, which the Appellant allegedly breached, reasonable cause of action was disclosed by the 1st Respondent against the Appellant. And that the lower Court was not deprived of the jurisdiction to entertain 1st Respondent’s suit.
Senior Counsel for the Appellant referred to the holding of the learned trial Judge on the issue to contend that the learned trial Judge blurred the distinction between subject matter jurisdiction and lack of reasonable cause of action, which deprived the Court of jurisdiction to entertain the suit. The Appellant did not query the jurisdiction of the lower Court to entertain the subject matter of Banker and Customer relationship. The issue raised by the Appellant which the Court below failed to address, was whether a claim by a customer/debtor of a Bank that the amount claimed by the creditor was not the exact amount of money which it owed the creditor bank amounted to a reasonable cause of action. The Appellant had cited the cases of Union Bank of Nig Ltd v Penny Mart Limited (1992) 5 NWLR (Pt 240) 228; Daily Times Nig Plc v DSV Ltd (2014) 5 NWLR (PT. 1400) 321 at 359 in support of its position that no reasonable cause of action was disclosed by the 1st Respondent, who having admitted indebtedness to the Appellant Bank, alleged that the amount demanded by the Bank was not the amount it owed, without disclosing the amount owed.
It was submitted that the learned trial Judge failed to give a decision on the contention that the lower Court had no jurisdiction to entertain the matter on account of non-disclosure of reasonable cause of action but decided same on completely different issue of subject matter jurisdiction. The Court has a duty to pronounce on and decide on all issues brought before it by the parties, citing Marine Management Associates Inc. v National Maritime Authority (2012) 18 NWLR (Pt. 1333) 506 at 532; Dingyadi v I.N.E.C (2010) 18 NWLR (Pt. 1224) 1 at 51. The Court was urged to resolve the issue in favour of the Appellant.
For the 1st Respondent, on the allegation that two of the Amended Statements of Claim were signed by persons different from, or on behalf of, the persons whose names were inscribed, the decision of the Supreme Court in Heritage Bank Ltd v Bentworth Finance (Nig.) Ltd (2018) 9 NWLR (Pt 1625) 420, was cited and relied on in urging the Court to resolve this issue against the Appellant. The Supreme Court had distinguished between a defect in procedure and a defect in competence or jurisdiction, holding that the former was a mere irregularity that could be waived. The Appellant’s complaint was that two amended Statements of Claim were not properly signed, but there was no complaint about the Writ of Summons, which was the originating process. Neither was there any complaint about the original Statement of Claim. Further reliance was placed on the decisions in P.W.T.H. v Ceddi Corp. Ltd & Anor (2012) 2 NWLR (Pt 1285) 465 at 501–502; N.C. Angus (W/A) Ltd v FRN [2021] 19 WRN 62 at 75 (CA). The Appellant, which had not anchored its complaint on an identified or cognizable defect in the originating process, the Writ of Summons, had participated in the proceedings at the trial Court, joined issues and even filed a Counter-Claim to the suit. It was submitted that, the Appellant, as the defendant, had clearly condoned the defective statement of claim and waived his right to object to this defective process.
The 1st Respondent further submitted that unlike the Heritage Bank case (supra), where the Statement of Claim was ex-facie defective, no such defect can be seen on either of the Amended Statements of Claim complained about by the Appellant. The said Amended Statements of Claim bear the names of identifiable persons, and not law firms, as in authorities relied on by the Appellant. The cases of Okafor v Nweke (supra); Ewukoya & Anor v Buari & Ors (supra), Alhaji Rafiu Kuranga & Ors v Olatunde George & Anor (supra) were therefore inapplicable to this appeal.
It was argued that, contrary to the suggestion of the Appellant that the processes in issue were signed on behalf of Messrs Olojo and Owonikoko respectively, there was nothing on the face of the documents to suggest that they were not signed by the named persons indicated thereunder. It was not the duty of the Court to begin to trace whether the signature inscribed on one document tallies with the signature on another document. It was submitted that it was up to the Appellant to prove that the signatures did not belong either to Chief Olojo or Mr Owonikoko, which it failed to do.
It was further argued that, assuming but not conceding that the 1st and 3rd Amended Statements of Claim contained defects, the Appellant had no complaint about the Original Statement of Claim and the 2nd Amended Statement of Claim. Discountenancing the alleged defective processes would not rob the Court of jurisdiction. Rather, at the worst, would be the invalidation of the 3rd Amended Statement of Claim leaving the 2nd Amended Statement of Claim extant, citing Unity Bank Plc v Bouari (2008)7 NWLR (Pt 1086) 372 at 399 A-B (SC); Vulcan Gases Ltd v G.F. Ind. A.G. (2001) 9 NWLR (Pt 719) 610 at 640 on the principle that an amended process relates back in time to when the original process was filed and, what stood before the amendment is no longer material before the Court and no longer defines the issues to be tried.
On the competence of the 2nd Amended Statement of Claim, reliance was placed on Unity Bank Plc v Denclag (2012) 18 NWLR (Pt 1332) 293 at 327 to submit that having been filed upon leave granted to amend the allegedly defective 1st Amended Statement of Claim, the 2nd Amended Statement of Claim was valid.
Senior Counsel for 1st Respondent posited that an objection surrounding the mode or manner of appending counsel’s signature on Court process, where it is not disputed that counsel’s name indorsed on the process is that of a person called to Bar and entitled to practice, does not invite invocation of Okafor’s case to invalidate the process. It becomes fatal where no known legal practitioner is stated beneath the signature, which distinction was recognized in Ibekwe & Ors v Isidore [2021] 16 WRN 175 at 188-189. That where an undisputed name of a Counsel is supplied under the signature, but not ticked, it is at best a procedural defect, which if not objected to timeously would be taken as waived, citing Dankwambo v Abubakar (2016) 2 NWLR (Pt 1495) 257 at 206; Heritage case (supra); Williams v Adold/Stamm Int’l (Nig.) Ltd (2017) 6 NWLR (Pt 1560) 1 at 19 to 20. The decision in Bakari v. Ogundipe & Ors (2021) 5 NWLR (PT 1768) 1 at 40, 68-69 was also cited and relied on.
On the alleged non-disclosure of reasonable cause of action by the 1st Respondent, as claimant at the trial Court, reliance was placed on the substance of the 1st Respondent’s case at the trial Court. The 1st Respondent, as claimant, averred that it was not owing the Appellant Bank the sum claimed to be owed, and that until a proper audit and subsequent reconciliation is carried out, it cannot be said whether or not there was any debt due. The foundation of the 1st Respondent’s action was that the Appellant had mismanaged the 1st Respondent’s account and funds contrary to the banker-customer relationship that existed between the two companies. The holdings of the trial Court were referred to in submitting that the trial Court found that a reasonable cause of action founded in breach of contractual banker-customer relationship was disclosed by the 1st Respondent. That it is incorrect to posit that the trial Court treated subject matter jurisdiction, and not failure to disclose reasonable cause of action. Determination of a reasonable cause of action arises from the total examination of a claimant’s originating process and not just the reliefs sought. The cause of action was evident on the face of the pleadings. The Court was urged to resolve the two jurisdictional issues raised in favour of the 1st Respondent.
In the Reply Brief, the Appellant submitted that the 1st Respondent’s reliance on the decision in Heritage Bank v Bentworth Finance (Nigeria) Limited (2018) 9 NWLR (PT. 1625) 420 was misconceived and improper, having regard to earlier decisions of Okafor v Nweke, First Bank Plc v Maiwada, Hamzat & Anor v Sanni & Ors (2015) LPELR-24302 (SC). That the thrust of the previous cases is the invalidity of such processes regardless of the validity of the Originating Process or participation by the defendant in the trial of such suits. On whether there could be a waiver of the Appellant’s right to object to incompetent processes because of participation in the trial, it was submitted that the provisions of Section 2(1) of Legal Practitioners Act, which prescribes signing of processes by a Legal Practitioner who is enrolled in the register of Legal Practitioners, is a mandatory provision of a substantive law, citing Ajibode v Gbadamosi (2021) 7 NWLR (PT. 1776) 475 in which the Supreme Court departed from the isolated decision in the Heritage Bank case when it held that Section 2(1) of the Legal Practitioners Act is a mandatory provision which is non-waivable. It was therefore submitted that the Heritage Bank case had not overruled prior cases on the issue. The Court was urged to uphold Appellant’s submission on the invalidity of the Respondent’s Amended Statement of Claim.
Assuming without conceding that the Heritage Bank case is good law, it was submitted that the said case has been overruled by the recent decision of the apex Court in Ajibode v Gbadamosi (2021) 7 NWLR (PT. 1776) 475.
In response to the argument that there was no defect in the 1st and 3rd Amended Statements of Claim because they show the names of identifiable persons, the cases of Peak Merchant Bank Plc v NDIC, FBN v Maiwada and SLB Consortium, which deal frontally with signing Court processes, on behalf of another Counsel, by a person who is not identified as a Legal Practitioner and whose name is not shown to or proved to be on the roll of Legal Practitioners.
On the argument that it is not the duty of Court to trace whether the signature inscribed on one document is in tandem with the signature on another, it was submitted that a Court of law is entitled and has an abiding duty to look at all Court processes filed before it, in order to arrive at a just and proper decision on the issue placed before it, citing Agbareh v Mimrah (2008) 2 NWLR (Pt. 1071) 378 at 411-412; Ado v Mekara (2009) 9 NWLR (Pt. 1147) 491 at 506. It was therefore proper for the Court to examine relevant processes in order to decide whether the processes were signed by same or different persons. Where the issue is whether a person signed/executed a document or not, the Court is at liberty to compare the signature on undisputed documents with those on the disputed documents; relying on Adenle v Olude (2003) 18 NWLR (PT 799) 412; Anikpeh v U.B.A. PLC (2018) LPELR-46327 (CA).
In response to the submission that “the worst case scenario would be the invalidation of the 3rd Amended Statement of Claim leaving the 2nd Amended Statement of Claim extant”, it was submitted that where as in the instant case, 1st Respondent predicated its claim on and also adduced evidence on the basis of the 3rd Amended Statement of Claim and judgment of the lower Court was based on the 3rd Amended Statement of Claim, the judgment and the invalid 3rd Amended Statement of Claim are liable to be set aside. The Court was urged to hold that 1st and 3rd Amended Statements of Claim of the 1st Respondent were incompetent and invalid. The judgment of learned trial Judge, which was based on an incompetent process was liable to be set aside.
Resolution
By the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation 2004, a legal practitioner who can, within the meaning of the relevant Rules of Court, validate a Court process, whether writ of summons, notice of appeal, statement of claim or statement of defence, must be a named legal practitioner whose name is on the Roll of Legal Practitioners in the Supreme Court of Nigeria, registered to practice as a Barrister and Solicitor in this Country. These provisions have received frequent and consistent judicial interpretation such that it is now well settled that a process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner. A foremost authority was the case of Okafor v. Nweke (supra), (2007) LPELR-2412(SC). The Supreme Court considered the provisions of Section 2(1) and 24 of the Legal Practitioners Act, and, per Onnoghen, JSC (CJN retired) held:
“The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner he must have his name in the roll otherwise he cannot engage in any form of legal practice in Nigeria.
The question that follows is whether J.H.C. OKOLO SAN & CO is a legal practitioner recognized by the law? From the submissions of both counsels, it is very clear that the answer to that question is in the negative. In other words, both senior counsel agree that J.H.C. OKOLO SAN & CO is not a legal practitioner and therefore cannot practice as such by say, filing processes in the Courts of this country. It is in recognition of this fact that accounts for the argument of learned Senior Advocate for the applicants that to determine the actual person who signed the processes evidence would have to be adduced which would necessarily establish the fact that the signature on top of the inscription J.H.C. OKOLO SAN & CO. actually belongs to J.H.C. OKOLO SAN who is a legal practitioner in the roll. I had earlier stated that the law does not say that what should be in the roll should be the signature of the legal practitioner but his name. That apart, it is very clear that by looking at the documents, the signature which learned senior advocate claims to be his really belongs to J.H.C. OKOLO SAN & CO. or was appended on its behalf since it was signed on top of that name. Since both counsel agree that J.H.C. OKOLO SAN & OKAFOR & ORS. V. NWEKE & ORS & CO is not a legal practitioner recognized by the law, it follows that the said J.H.C. OKOLO SAN & CO. cannot legally sign and/or file any process in the Courts and as such the motion on notice filed on 19th, December 2005, notice of cross appeal and applicants brief of argument in support of the said motion all signed and issued by the firm known and called J.H.C. OKOLO SAN & CO are incompetent in law particularly as the said firm of J.H.C. OKOLO SAN & CO. is not a registered legal practitioner. In arriving at the above conclusion, which is very obvious having regard to the law, I have taken into consideration the issue of substantial justice which is balanced on the other side of the scale of justice with the need to arrest the current embarrassing trend in legal practice where authentication or franking of legal documents, particularly processes for filing in the Courts have not been receiving the serious attention they deserve from some legal practitioners.”
About five years later, this position of the law was affirmed by the Apex Court sitting as a full Court in First Bank of Nigeria Plc v. Maiwada (2012) LPELR-9213(SC); (2012) 5 SC (Pt. 111) 1. On the interpretation to be accorded the wordings of the Act, the Apex Court, per Fabiyi, JSC, held, pages 11-12 of the E-Report:
“Generally, where the words of a statute are clear and unambiguous, the Court should give same its ordinary literal interpretation…
In my considered opinion, the words employed in drafting Sections 2(1) and 24 of the Act are simple and straight forward. The literal construction of the law is that legal practitioners who are animate personalities should sign Court processes and not a firm of legal practitioners which is inanimate and cannot be found in the roll of this Court.”
On whether the decision in Okafor v Nweke (supra) was mere technical justice, which ought to be revisited, the Supreme Court further held, pages 15–16 of the E-Report:
“There is also the view of some counsel that the decision in Okafor v. Nweke had to do with technical justice. I agree that the age of technical justice is gone. The current vogue is substantial justice. See: Dada v. Dosunmu (2006) 12 PNJSC 115. But substantial justice can only 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 Sections 2(1) and 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.”
The Supreme Court then declined the invitation to revisit the decision in Okafor v. Nweke since it was not in any respect wrong in law.
The decision in Okafor v Nweke (supra) and the subsequent decision ofFBN v Maiwada (supra), restating the position of the law as enunciated therein, has been followed in a number of decisions of the Apex Court and of this Court. To mention but a few, see: SLB Consortium Ltd v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317; (2011) LPELR-3074(SC); Okarika v. Samuel (2013) LPELR-19935(SC); Oketade v Adewunmi (2010) 8 NWLR (Pt. 1195) 63; SPDC v Sam Royal (Nig) Ltd (2016) LPELR-40062(SC); Okpe v. Fan Milk Plc & Anor (2016) LPELR-42562(SC); Williams & Anor v. Adold/Stamm International Nigeria Limited & Anor (2017) LPELR-41559(SC); GTB v. Innoson Nigeria Ltd (2017) LPELR-42368(SC); Akinsanya & Anor v. Federal Mortgage Finance Ltd (2010) LPELR-3687(CA); Igiriga v. Bassey (2013) LPELR-20346(CA); N.N.P.C. v. Roven Shipping Ltd (2014) LPELR-22540(CA); Kpezanyashi & Ors v Jezhi & Ors (2018) LPELR-44402(CA); Ewukoya & Anor v. Buari & Ors (supra), (2016) LPELR-40492(CA).
This position of the law was restated by the Supreme Court, per Bage, JSC, in Arueze & Ors v. Nwaukoni (2018) LPELR-46352(SC) at page 11 thus:
“The cases of OKAFOR VS NWEKE (Supra) OKETADE VS ADEWUNMI (Supra) FBN PLC v. MAIWADA (Supra) cited above have settled the matter with satisfactory finality, to the effect that the proper procedure for signing on behalf of somebody else is to disclose the name and identity of the person who signed and for whom it was signed if signed on behalf of another person in chambers- the two names must be disclosed. I can’t agree less with the Respondent that the originating process, the Amended Statement of Claim No. 3 was defective as issued. This goes to the jurisdiction of this Court to entertain this appeal.”
In view of the contentions of the 1st Respondent’s Counsel, it is important to consider this position of the law against the decisions in Heritage Bank Ltd v Bentworth Finance (Nig.) Ltd (2018) 3 NWLR (PT 1625) 420, and in Bakari v. Ogundipe & Ors (supra), (2020) LPELR-49571(SC).
In Heritage Bank Ltd v Bentworth Finance (Nig.) Ltd (supra), the Appellant lodged an appeal at the Supreme Court challenging the decision of this Court dismissing its appeal against the judgment of the High Court of Lagos State. The statement of claim filed on 19/9/1990 was not signed by a person whose name is on the roll call of Legal Practitioners registered in the Supreme Court and licensed to practice law in Nigeria, in line with the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, but was signed by “Beatrice Fisher & Co”. At the Supreme Court, the Appellant, for the first time, contended that the statement of claim was defective and incompetent, robbing both the High Court and the Court of Appeal of jurisdiction to entertain the suit. The Supreme Court, per Eko, JSC, held, pages 434 – 435:
“The facts of this case, particularly on this objection, are that in spite of the fact that the statement of claim was allegedly not signed by a known legally qualified Legal Practitioner, but by a firm of Legal Practitioners, the Appellant, as Defendant, condoned the defective process. They participated in the proceedings and evidence arising from the statement of claim was called after the statement of defence joining issues with the defective statement of claim was filed. Judgment of the trial Court, based on the evidence elicited from the statement of claim, was delivered without objection. Even at the Court of Appeal, no issue was made of the alleged defective statement of claim. The Appellant, as the Defendant, had clearly condoned the defective statement of claim and waived his right to object to this defective process.”
The learned Law Lord was also of the view that an irregularity that affects an originating process is a fundamental defect that would go to the root of the matter and would thereby affect the competence of the action. But that the statement of claim was not such an originating process, page 434. I note that the decision in F.B.N. PLC v Maiwada (supra) was not considered in this case at all.
In Bakari v. Ogundipe & Ors (supra), one of the issues considered by the Supreme Court was:
Whether the Court of Appeal had jurisdiction to entertain the appeal before it having regard to the incompetent originating process, i.e. the statement of claim filed before the trial Court and signed by an unknown person for Plaintiffs counsel?
The Apex Court, per Rhodes Vivour, JSC said, at pages 24–29 of Supreme Court:
“It is important I set out the facts on this issue. The 1st Respondent, as Plaintiff had at the trial Court filed a Statement of claim on 27th April, 2006 signed by someone, but it cannot be said who signed the process.
The Appellant did not raise any objection on this defect at the trial Court nor at the Court of Appeal but raised it as an issue of jurisdiction at the Supreme Court for the first time.
The Appellant participated in the proceedings and evidence from the statement of claim was called after the Statement of defence joining issues with the defective Statement of claim. The trial Court gave judgment upon the evidence and even at the Court of Appeal no issue was made of the alleged defective Statement of Claim…
In SLB Consortium Ltd v NNPC (2011) 4 SC (Pt.1) p.86, I explained how processes filed in Court are to be signed. I said:
First, the signature of counsel, which may be any contraption.
Secondly, the name of counsel clearly written.
Thirdly, who counsel represents.
Fourthly, name and address of legal firm.
It is clear from the facts above that the Statement of Claim was signed, but there was no name of counsel. So the process is irregular.
If the trial judge raised this issue Suo Motu and called on counsel to address him on it, the suit would have been struck out. This would also be the outcome, if learned counsel for the defendant raised objection.
Why was the suit not struck out?
In A.G. Kwara State & Anor v Saka Adeyemo & Ors (2016) 7 SC (Pt.II) p. 149.
I said that:
Jurisdiction is a question of law.
There are two types of jurisdiction.
1. Jurisdiction as a matter of procedural law.
2. Jurisdiction as a matter of substantive law. A litigant may waive the former.
Again in Appeal No: SC.175/2005 Heritage Bank Ltd v Bentworth Finance (Nigeria) Ltd decided by this Court on 23rd February, 2018 Eko J.S.C. explained the distinction between substantive jurisdiction and procedural jurisdiction.
The law is very well settled that counsel may waive a defect in procedure which is procedural law.
What is waiver and what are the consequences when counsel waives his right?
Waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile and complain of what he has waived. Put in another way, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. See Ariori & Ors v Elemo & Ors (1983) 14 NSCC P.1; Chief John Eze v Dr. C.I. Okechukwu & 7 Ors (2002) 14 SCM p.105
After the Writ of Summons and Statement of Claim filed by the 1st Respondent/Plaintiff were served on the Appellant, he did not raise any objection to the defect in the Statement of Claim at the trial Court instead, he filed a Statement of defence and participated in trial and judgment was delivered in his favour. Not objecting to the signature on the Statement of claim amounts to a waiver. It is only when objection is made at the earliest opportunity can it be said that the right was not waived…
The appellant accepted the statement of claim as if it was very much in order. He participated in the proceedings, filed a statement of defence and called evidence. Judgment of the trial Court was given, dismissing the 1st Respondent’s claim. The Appellant was happy. He did not complain. The 1st Respondent/Plaintiff filed an appeal. On Appeal, the Appellant defended the judgment and never made the defective Statement of Claim an issue.
When the Appellant lost in the Court of Appeal he appealed to the Supreme Court, and made the issue of the competence of the Statement of Claim an issue for the first time. It is clear he waived his right to object to the defective process. The right of the Appellant to object to the defective statement of claim is a waivable right, being procedural jurisdiction. A private right.
It would be most inequitable and unjust to the 1st Respondent/Plaintiff for the Appellant after waiving his right to complain about the Plaintiff’s incompetent process, to be allowed to complain on appeal. Waiver is inferred or implied after examining the conduct of the Appellant.
No Court would allow the Appellant to renege from his acquiescence. This issue is resolved against the Appellant.”
The learned Jurist considered F.B.N. Plc v Maiwada (supra) and held that counsel on the other side quickly complained about the incompetence of the originating process. He did not waive his right to object.
It is important to note that the decision of the Apex Court in First Bank of Nigeria Plc v. Maiwada (supra), was a decision of the Supreme Court sitting as its full Court. The reason for which the full Court was empaneled was stated, per Fabiyi, JSC thus, page 3 of the E-Report:
“The core issue in my considered opinion is – whether a Court process not personally signed by a legal practitioner duly registered in the roll of this Court as dictated by the applicable provisions of the Legal Practitioners Act is valid or competent.
Among legal practitioners, we have two schools of thought in respect of the above salient, issue. The division is very grave indeed. To put the dispute at rest, the Hon. Chief Justice of Nigeria has empaneled a full Court. A host of amicus curiae got invitation to address the Court on the issue.”
In other words, it was to avoid confusion and discordant judicial pronouncements on the competence or validity of a Court process not personally signed by a legal practitioner duly registered in the roll of the Supreme Court as provided in the Legal Practitioners Act that the Supreme Court sitting as a full Court was empaneled.
In this regard therefore, and with utmost respect, it is my humble opinion that the decisions in Heritage Bank Ltd v Bentworth Finance (Nig.) Ltd (supra) in 2018, and in Bakari v. Ogundipe & Ors (supra) in 2020, which were not decisions of the Supreme Court sitting as a full Court, cannot be said to represent the extant position of the law on this issue. Therefore, the decision in Okafor v Nweke (supra), duly affirmed in FBN v Maiwada (supra), still represents law.
The concept of waiver in this circumstance was considered in the recent decision in Ajibode & Ors v Gbadamosi & Ors (supra), relied on by the Appellant, and also reported in (2021) LPELR-53089(SC). At pages 14–15 of the E-Report, the Supreme Court, per Ngwuta, JSC (of blessed memory) affirmed the position of the law thus:
“My noble Lords, I am not unaware of contrary decisions by eminent jurists of the Court below and of the apex Court.
The facts of this appeal appear to be similar to the facts in IBB Industries Ltd vs Mutunci (Nig) Ltd (2012) 6 NWLR (Pt. 1297) 487 CA and Heritage Bank Ltd vs Bentworth Finance (Nig) Ltd (2018) 9 NWLR (Pt. 1625) 420 SC.
The Court of Appeal in IBB’s case relied on the doctrine of waiver and dismissed the appeal. Also, in the Heritage Bank’s case, this Court dismissed the appeal on the same doctrine.
In each case, it would appear that the signature by a law firm was treated as an irregularity which the Appellants waived by taking part in the proceedings, being aware of the defects therein.
In the present appeal, though the Appellants took part in the proceedings and neither raised the issue that the initial process was signed by a law firm in the trial Court nor in the Court of Appeal, the defect cannot be treated as an irregularity that a party can waive. A party cannot waive the breach of a law made by the National Assembly and it is never late in any proceedings to raise the issue of jurisdiction.”
(Emphasis mine).
A look at the processes will reveal that while the originating writ of summons and Statement of Claim were signed by Chief Tunde Olojo, pages 1–11 of the Record of Appeal, the Amended Statement of Claim, at pages 215–224 of the Record of Appeal, was signed thus:
(signed)
f: Chief Tunde Olojo
Shinkafi, Kusamotu Olojo & Co
Synergy Attornies
Plaintiff’s Solicitors
Unity House (9th Floor)
37, Marina, Lagos.
The 3rd Amended Statement of Claim, at pages 409–418 of the Record of Appeal, was signed thus:
(signed)
PP: A.J. Owonikoko
Shinkafi, Kusamotu Olojo & Co
Synergy Attornies
Plaintiff’s Solicitors
Unity House (9th Floor)
37, Marina, Lagos.
Signing ‘for’ (f), or PP – per procuration, simply means signing for another person. It indicates that the signing of the document has been done on behalf of the person whose name appears thereon. The Cambridge Business English Dictionary Cambridge University Press defines ‘pp’ per pro as what is written in front of a person’s name when one signs a letter or document for them. It is used to show when someone has signed a document for a person who is not available to sign it; Tanimu v Rabiu (2017) LPELR-47998(SC); Kpezanyashi & Ors v Jezhi & Ors (supra) at pages 25–26.
What is fundamental is that, where the relevant rules of Court provide that process must be signed by a legal practitioner, only a legal practitioner within the meaning of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation, 2004, can frank or sign the Court process. This simply means that the identity of the legal practitioner who signs a Court process, whether directly or on behalf of another, must be known. The identity of the legal practitioner must be explicitly evident.
It is irrelevant whether the process involved is an originating process such as a writ of summons or notice of appeal, or another process filed in the course of proceedings; Akinsanya & Anor v. Federal Mortgage Finance Ltd (supra); GTB v. Innoson Nigeria Ltd (supra). As was recently (in 2021) restated in Ajibode & Ors v Gbadamosi & Ors (supra) at page 11 of the E-Report:
“The locus classicus on this point, Okafor vs Nweke (Supra)… established that any document or process for filing in Court (not just an originating process) must be signed by a person qualified to practice under the Act. Any other mode of signing and authenticating a Legal Process will render the process a nullity.”
(Emphasis mine).
As demonstrated above, therefore, the originating writ of summons and Statement of Claim, pages 1–11 of the Record of Appeal, which were signed by Chief Tunde Olojo, were signed by an identified Legal Practitioner, as demanded by the Legal Practitioners’ Act and in line with the pronouncements on the issue in Okafor v Nweke (Supra) and FBN v Maiwada (supra).
The same cannot be said of the Amended Statement of Claim, at pages 215–224 of the Record of Appeal, which was signed by an unidentified person, thus:
(signed)
f: Chief Tunde Olojo
Shinkafi, Kusamotu Olojo & Co
Synergy Attornies
Plaintiff’s Solicitors
Unity House (9th Floor)
37, Marina, Lagos.
The identity of the person who signed the said Amended Statement of Claim was not known. The argument for the 1st Respondent that there was nothing on the face of the processes in issue to suggest that they were not signed by the named persons as indicated falls on its face. It is established that a Court cannot indulge in speculating on the identity of an unknown signatory of a process and further speculating on whether the signatory is a Legal Practitioner within the meaning of the Legal Practitioners’ Act. It is well settled that Courts act on facts and the law, and do not assume or engage in speculation on any matter; Universal Trust Bank of Nigeria v Ozoemena (2007) LPELR-3414(SC); Awolola v The Governor of Ekiti State & Ors (2018) LPELR-46346(SC).
The subsequent 2nd Amended Statement of Claim filed on 20/5/2003, pages 321–329 of the Record of Appeal, was signed thus:
(signed)
A.J. Owonikoko
Shinkafi, Kusamotu Olojo & Co
Synergy Attornies
Plaintiff’s Solicitors
Unity House (9th Floor)
37, Marina, Lagos.
The signatory thereto is identifiable as A. J. Owonikoko, Esq., now SAN, learned Senior Counsel for the Respondent. However, the 2nd Amended Statement of Claim was premised on the Amended Statement of Claim, filed earlier on 10/9/2002. The said Amended Statement of Claim, as demonstrated above, was fundamentally defective. It was an incompetent process. Therefore, it cannot be taken into account. As rightly submitted for the Appellant, the principle of law remains that something cannot be placed on nothing; Macfoy v UAC (1961) 3 All ER 1169 at 1172; Alhaji Tajudeen Babatunde Hamzat & Anor v. Alhaji Saliu Ireyemi Sanni & Ors (2015) LPELR-24302(SC).
The 3rd Amended Statement of Claim at pages 409–418 of the Record of Appeal, was also fundamentally defective in that it was signed by an unidentified person thus:
(signed)
PP: A.J. Owonikoko
Shinkafi, Kusamotu Olojo & Co
Synergy Attornies
Plaintiff’s Solicitors
Unity House (9th Floor)
37, Marina, Lagos.
Notwithstanding, even if the said 3rd Amended Statement of Claim were found to have been a competent process in that it was properly signed, it would have suffered the same fate as the 2nd Amended Statement of Claim. The simple reason being that the Amended Statement of Claim, on which subsequent amendments were premised, was itself an incompetent process and the Court cannot take account of it. The relevant query now for consideration, to my mind, is: where do these findings leave this matter?
The 1st Respondent had argued that that Appellant participated in the proceedings at the lower Court and could be deemed to have waived any procedural defect in the signing of the 3rd Amended Statement of Claim. However, this line of argument, already demonstrated above, is totally out of line with the decision of the Apex Court in Okafor v Nweke (supra), duly affirmed by the Supreme Court sitting as the full Court in FBN v Maiwada (supra), and recently in 2021, restated per Ngwuta, JSC, in Ajibode & Ors v Gbadamosi & Ors (supra). It is beyond cavil that a party cannot waive the breach of a law made by the National Assembly. Therefore, where the Court lacks the power to exercise jurisdiction to entertain a matter, the question of waiver cannot arise. It cannot therefore be treated as a mere irregularity that a party can waive; Ajibode & Ors v Gbadamosi & Ors (supra).
It is also irrelevant that the Appellant took part in the proceedings and neither raised the issue at the trial Court that the initial process was not properly signed by an identifiable legal practitioner. The defect is a jurisdictional issue that can be raised at any time, even at the Apex Court. It is well settled that a jurisdictional issue can be raised at any time; Adegoke v Adibi (1992) LPELR-95(SC); Adesola v Abidoye (1999) LPELR-153(SC);Olutola v University of Ilorin (2004) LPELR-2632(SC).
In Alhaji Tajudeen Babatunde Hamzat & Anor v. Alhaji Saliu Ireyemi Sanni & Ors (supra) the Respondents therein filed a preliminary objection challenging the competence of the statement of claim of the Appellants therein, on which evidence of the Appellants’ witnesses at the trial Court was based. The main plank of the objection was that the statement of claim was signed by “OLUMUYIWA OBANEWA AND CO.” as “Legal Practitioners, solicitors to the plaintiffs.” This objection was raised for the first time at the Supreme Court. The Supreme Court, per Galadima, JSC made it clear that the question as to whether a Court has jurisdiction or not to entertain an action can be raised at any time of the proceedings and even for the first time at the appellate Court.
The issue of jurisdiction is always a threshold and foundational issue to the competence of the action, as well as of the Court to entertain the action; Utih v Onoyivwe (1991) LPELR-3436(SC). It is well settled that for a Court to be competent to assume jurisdiction, the following three conditions must be satisfied:
(a) The Court must be properly constituted as regards number and qualification of members of the bench.
(b) The subject matter of the case must be within the jurisdiction of the Court.
(c) The case must come before the Court initiated by one process of law and upon fulfillment of all condition precedent to the exercise of the jurisdiction.
Any defect in competence of a Court-process is fatal and the proceedings arising therefrom will be rendered a nullity, no matter how well conducted: Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Skenconsult (Nig) Ltd v Ukey (1981) 1 SC6. This is well settled.
The 1st Respondent had argued that even if the 3rd Amended Statement of Claim were invalidated, the 2nd Amended Statement of Claim was competent. In Unity Bank Plc v Denclag (supra), also reported in (2012) LPELR -9729(SC), which was relied on by the 1st Respondent, one of the issues considered by the Supreme Court was whether the notice of appeal of the Appellant was valid in law. The defective notice of appeal was signed on behalf of the Appellant by IBRAHIM HAMMAN & CO. The Respondent’s Counsel therein had argued that the lower Court having made an order for the amendment of the notice of appeal on account of the irregular or defective signature not being made by a legal practitioner, the process remained valid. The Supreme Court by a majority decision, per Odili, JSC upheld the decision of this Court allowing an amendment of the notice of appeal signature page before it, page 42 of the E-Report, stating that:
“This comes into one of those exceptions that could alleviate the hardship that otherwise would have resulted. Therefore the process was redeemed and consequently valid.”
Dissenting, Chukwuma-Eneh, JSC noted that a full Court of the Supreme Court had been empanelled to revisit, reverse or depart from the decision of Okafor v Nweke (supra), and opined, that:
“However, until the judgment of the full Court reached in the said suits is delivered it is my view that the decision in Okafor v Nweke a binding authority in this Court still subsists and holds sway.”
Interestingly, the full Court of the Supreme Court empaneled to revisit, reverse or depart from the decision of Okafor v Nweke (supra), led to the decision in FBN v Maiwada (supra), which validated the position of the law in Okafor v Nweke (supra). In my respectful opinion therefore, the decision of Unity Bank Plc v Denclag (supra) would not be applicable herein.
Further, and this is fundamental, the trial Court premised its judgment on the defective 3rd Amended Statement of Claim. The learned trial Judge noted in judgment, page 2143 of the Record of Appeal:
“…the Claim of the Claimant is as contained in his 3rd Amended Statement of Claim of 8th day of April, 2004.”
The claims of the 1st Respondent were, thus, considered on the basis of the evidence led by the parties on the issues joined by the 3rd Amended Statement of Claim. That is to say, the judgment on appeal was premised on the 3rd Amended Statement of Claim, which has been adjudged to be incompetent. The submissions of learned Senior Counsel for 1st Respondent implies that the evidence adduced in respect of the 3rd Amended Statement of Claim would have to be separated. In my considered view, however, even if it were possible to decipher and separate the portion of evidence led that was in respect of the originating Statement of Claim or the 2nd Amended Statement of Claim and delete the evidence led in respect of claims in the 3rd Amended Statement of Claim, that certainly does not seem like a fitting task for the Court, more so an appellate Court.
It is clear that the only competent Statement of Claim was the originating Statement of Claim which was signed by Chief Tunde Olojo, pages 1–11 of the Record of Appeal. As already demonstrated above, the incompetently signed Amended Statement of Claim, pages 215-224 of the Record of Appeal, fatally infected the further 2nd and 3rd Amended Statements of Claim. In this circumstance, the only order that can be made is to strike out the incompetent 3rd Amended Statement of Claim.
The implication is that the proceedings and judgment of the lower Court were a nullity. The said judgment delivered in favour of the 1st Respondent’s claims is hereby set aside.
In this light, a further consideration of the Appellant’s Issues 2, 3 and 4 would be unnecessary, and indeed, may be premature. I shall however, proceed to consider Issue 5 of the Appellant, which was akin to Issue 3 as formulated by the 1st Respondent.
Issue 5
Issue 5 as distilled by the Appellant challenged the decision of the lower Court dismissing the Counter-Claim of the Appellant. The lower Court had dismissed the Appellant’s Counter-Claim on the ground that there were contradictions between the pleadings and the evidence of the Appellant. It was submitted that the standard of proof in civil cases is on the preponderance of evidence and the balance of probability; citing Uwah & Anor v. Akpabio & Anor (2014) LPELR-22311(SC); Ohochukwu v A.G. Rivers State (2012) 6 NWLR (PT. 1295) 53 at 84. On the meaning of preponderance of evidence or balance of probability, reference was made to Black’s Law Dictionary 8th Edition; Oilserv Ltd v L.A.I. & Co (Nig) Ltd (2008) 2 NWLR (PT 1070) 191 at 211; Okorie v Unakalamba & Anor (2013) LPELR-22508(CA). Referring to the decision of learned trial Judge, it was argued that the fact that different balances were reflected in the account on different dates was not a valid reason for stating that Appellant adduced contradictory evidence. An active Statement of Account cannot reflect the same credit or debit balance in different months/years because of lodgements, withdrawals, interest and bank charges.
Further, that the fact that Appellant claimed before the trial Court the sum of N250,000,000.00 and its letter of demand written well before the filing of the Counter-Claim stated N201,316,859.78 as the then outstanding balance, did not justify outright dismissal of Appellant’s suit on the ground of contradictions. That the Appellant led cogent and material evidence in proof of the 1st Respondent’s indebtedness. The learned trial Judge was wrong in holding that the Appellant failed to prove its Counter-Claim. Where the claim of a party is unchallenged, the proof required is minimal, citing Broadline Ent. Ltd. v Monterey Maritime Corp. (1995) 9 NWLR (PT. 417) 1 at 47. It was submitted, assuming without conceding that the 1st Respondent effectively joined issues with the Appellant on its Counter-Claim, that the learned trial Judge’s decision was based solely on the fact that the figures claimed by the Appellant before the lower Court were contradictory in nature. But, that discrepancy between the amount claimed and the amount proved is not a valid reason for dismissing a claim. A party will only be entitled to what it is able to prove as due to it, relying on Kaduna Textiles Ltd v Umar (1994) 1 NWLR (PART 319) 143 at 155, Okoebor v Eyobo Eng. Serv. Ltd. (1991) 4 NWLR (PART 187) 553 at 566.
The learned trial Judge in dismissing the Counter-Claim of the Appellant also held that the Appellant merely dumped the Statement of Account, Exhibit TF75, on the Court without showing how the debit balance on the said Statement of Account was arrived at. It was submitted that aside from tendering Exhibit TF75 in evidence, the Appellant also led evidence on the contents of the said Exhibit through DW1 and his Witness Statement on Oath. The Appellant’s oral and documentary evidence in support of the Counter-Claim went unchallenged.
The 1st Respondent as claimant did not deny its indebtedness to the Appellant. On issues relating to recovery of debt, it was submitted that once it is shown either by evidence or by the borrower’s admission that a debt was indeed owed or that a loan was indeed advanced, the burden is on the borrower to adduce evidence that the facility has been repaid. That, where the evidence showed that 1st Respondent was owing the Appellant, the 1st Respondent cannot by mere denial turn around and claim non-indebtedness to the Appellant. Reliance was placed on the following cases: Okoli v. Morecab Finance (Nigeria) Ltd (2007) LPELR-2463(SC); FCMB v. Rophine (Nig) Ltd & Anor (2017) LPELR-42704(CA). That the lower Court was wrong in dismissing the Appellant’s Counter-Claim when the 1st Respondent did not lead any evidence to show how and when the facility granted to her by the Appellant was fully repaid. The 1st Respondent’s letter, Exhibit TF18, was also relied on. The Court was urged to hold that the lower Court wrongly dismissed the Appellant’s counter-claim.
On the dismissal of the Appellant’s Counter-Claim, the 1st Respondent contended that Appellant failed to prove by evidence its entitlement to any particular sum as counter-claimed. The Appellant had relied on the evidence of its witness, which demonstrated a lack of understanding of basic banking practice.
The Appellant sought to give evidence through its Brief that the discrepancies in amounts reflected in its demand letter, Further Amended Statement of Defence, Statement of Account and witness Statement of Oath were as a result of accumulating interests on the sums due as all these documents have different dates. Such information, however, could only have been provided at the lower Court by a Witness Statement on Oath or during oral examination, and not in a Brief of Argument.
The Court was urged to note that the underlying debit balance on which the counter-claim was prosecuted was a transfer of the original disputed balances from three accounts that the bank unilaterally collapsed under an alleged account restructuring of the accounts. That the balance was before the forensic audit, and before the 1st Respondent had access to the two sub-accounts at Appellant’s head office, which revealed the unexplained missing of sums transferred from 1st Respondent’s current account by Appellant.
It was submitted that the quantum of proof required to prove liability of a bank debt, by Customer to Bank, comprised tendering of a bank statement, or other relevant documents such as credit and debit advice, and providing oral evidence to explain the entries therein, in line with the provisions of Section 51 of the Evidence Act, 2011. Reference was also made to Veepee Ind. Ltd v Cocoa Ind. Ltd (2008) 13 NWLR (Pt 1105) 486 at 510 to 511 C-B; Ogboja v Access Bank Plc (2016) 2 NWLR (Pt 1496) 291 at 321–322 H-A; Wema Bank Plc v Osilaru (2008) 10 NWLR (Pt 1094) 150 at 171 A & 179–180. That, without proving its claim, as a counter-claimant, the Appellant had argued in paragraph 8.10 of its Brief that 1st Respondent ought to have proved that it paid back any alleged indebtedness. It was submitted that the evidence before the trial Court showed that the 1st Respondent did in fact pay back and service the credit facilities availed it, through payments made by its customers into its accounts with the Appellant as shown in the Statement of Accounts at pages 659 to 690, 767 to 776 of the Record of Appeal (Vol. I). That, it was the Appellant who failed to reflect these credits accordingly or surreptitiously moved monies away from the 1st Respondent’s accounts in order to create a continued illusion of a never-ending ocean of debt. The evidence of DW1 under cross-examination where he was unable to locate various sums of money in the Statements of Account for which credit advice instruments had been issued to the 1st Respondent was referred to.
On the contention of the Appellant that the 1st Respondent admitted its indebtedness, it was argued that any plea made by the 1st Respondent for compassion or reprise, was made before full realization of the ‘fraud’ being practised on its accounts and do not amount to admissions. On what would constitute an admission of debt, reliance was placed on the decision in UBN Plc v Dawodu (2003) 4 NWLR (Pt 810) 287 at 304 B-G, that:
“…a mere general admission of indebtedness cannot be used as basis of a judgment for a specific sum.”
The Appellant had alleged that the 1st Respondent failed to join issues with it on the Counter-Claim. In response, reference was made to the 1st Respondent’s Amended Reply and Defence to Counter-Claim. The Court was urged to dismiss the Counter-Claim on the facts of the case.
In the Reply Brief, the Appellant submitted that the 1st Respondent’s comments that the lower Court had dismissed the Counter-Claim of the Appellant on ground that the Appellant did not offer necessary evidence in support of the Counter-Claim but relied on the oral evidence of DW1 was incorrect. The judgment of the lower Court on the Counter-Claim was not based on those grounds. It was submitted in order to support the judgment on grounds different from those relied upon by learned trial Judge, the 1st Respondent in compliance with Order 9 Rule 2 of the Rules of this Court, must file a Respondent’s Notice, relying on Ejura v Idris (2006) 4 NWLR (PT. 971) 538 at 564; NNB PLC v. Egun (2001) 7 NWLR (PT 711) 1 at 15. Not having filed a Respondent’s Notice, the 1st Respondent cannot support the judgment of the lower Court on the various grounds as it had done in its Brief.
In the alternative, it was submitted that there were sufficient materials in support of the Counter-Claim. The materiality of the alleged contradictions was not demonstrated in the lower Court. The Counter-Claim should not have been dismissed. The Court was urged to resolve the issue in favour of the Appellant.
Resolution
As rightly submitted by the Appellant, the Counter-Claim is a separate action and not affected by the striking out of the 3rd Amended Statement of Claim of the 1st Respondent. A Counter-Claimant may be allowed to proceed and prove his Counter-Claim, even when the main claim has been struck out, stayed, discontinued or dismissed; Alhaji Yusuf Dan Hausa & Co Ltd v Panatrade Ltd (1993) LPELR-420(SC); Ogli Oko Memorial Farms Ltd v NACB Ltd (2008) LPELR-2306(SC).
The 1st Respondent had filed an Amended Reply and Defence to the Counter-Claim, pages 265–269 of the Record of Appeal, Vol 1. The record reveals that the Appellant subsequently filed a Further Amended Statement of Defence and Counter-Claim, pages 891–902 of the Record of Appeal, Vol 2. As noted by the learned trial Judge, the Appellant had acknowledged the said Amended Reply and Defence to the Counter-Claim in its final written address. However, I also agree with the learned trial Judge that even if the 1st Respondent had failed to respond to the Counter-Claim, the Appellant still had the duty to prove its claims. It would not translate to mean that the 1st Respondent admitted the Counter-Claim; Akpaji v Udemba (2009) LPELR-371(SC).
The Appellant, as 1st defendant/counterclaimant before the lower Court, claimed:
a. The sum of N250 Million being the sum due and payable to the 2st Defendant/Counter Claimant by the Plaintiff for the various facilities extended to the Plaintiff by the 1st Defendant/Counter Claimant.
b. Interest on the said sum at the rate of 21% from the 19th March 2001 until judgment and 7% thereafter until final liquidation.
The lower Court held as follows at page 2182 of the Record of Appeal:
“It is trite law that any bank which is claiming a sum of money on the basis of the overall debit balance of a statement of account must adduce both documentary and oral evidence to show how the overall overdraft balance was arrived at mere dumping of a bank statement is not sufficient explanation of debits and lodgments in a customer’s account without an officer of the bank explaining or interpreting them to the Court to charge the customer with liability for the overall debit balance shown in the statement of account. There should be a breakdown of how much of the debt is interest to enable the Court to appreciate what is before it without having to do private calculations.”
The learned trial Judge further held, page 2183:
“The evidence of the 1st Defendant through its processes were contradictory to wit paragraph 66 of the DW1 Oath which was stated at N195,889,104.38 being the debit balance of the account as at 20th April, 2000. Secondly, the statement of account by the 1st Defendant (Exhibit TF75) shows a debit balance of N180,459,946.55 as at 30th day of April, 1999. Whereas the 1st Defendant is also demanding the sum of N201,316,859.78 from the Claimant by its Letter Exhibit TF39 and the 1st Defendant claims N250,000,000 as the sum due and payable to the 1st Defendant by the Claimant for the various facilities extended to it. These facts and evidence are so contradictory that it left much to be desired. This Court is not able to put this(sic) contradictions together but must come to the inevitable conclusion that the 1st Defendant have not been able to prove its Counter-Claim against the Claimant therefore the Counter-Claim of the claim hereby fails and its dismissed.”
DW1 testified for the Appellant in respect of the Counter-Claim. His written deposition made on 23/10/2014, found at pages 941–952 of the Record of Appeal, Vol 2., was adopted as his evidence on 11/3/2015, page 1177 of the Record of Appeal. On 27/4/2015, DW1 tendered the documents mentioned in his written deposition. DW1 did not draw attention of the trial Court to any particular document or any portion thereof.
Now, documents do not speak. There has to be proper linkage of the document and the issue sought to be proved. A party has an obligation to tie his documents to the facts or evidence or admitted facts in open Court. This cannot be done by oral or written address, or by a brief of argument on appeal. Therefore, even where a document has been tendered and admitted in evidence, it is the duty of the witness to link the document or relevant portions thereof to the issue at hand. This is the well settled position of the law; APGA v Al-Makura (2016) LPELR-47053(SC); Ucha v Elechi (2012) LPELR-7823(SC); Ladoja v Ajimobi (2016) LPELR-40658(SC).
In addition to the failure of DW1 to link the documents tendered to the issues in controversy, I found the cross-examination of DW1 by 1st Respondent’s Counsel quite revealing. See pages 1198–1206 of the Record of Appeal.
In his written depositions, DW1 stated as follows:
14. That the 1st Defendant denies paragraph 20 to the extent that the sum of N32,500,000.00 (Thirty Two Million Five Hundred Thousand Naira) was illegally transferred to the Head Office Deport rather than International Banking Division which it was originally meant for.
15. That the 1st Defendant state(sic) further that the above referred sum was duly transferred on 17th 1998(sic) Oshodi Branch International Banking Division through the Head Office Deport finance facility Repayment Account on 24th June, 1998. The 1st Defendant would rely on the Statement of Account at the trial.
16. That the 1st Defendant avers that contrary to paragraph 20(e), (f) and (g) of the Statement of Claim, the said sum of N32,500,000.00 was eventually transferred to International Banking Division as requested.
Under cross-examination by Counsel for the 1st Respondent, DW1 was unable to confirm from Exhibit TF21, the statement of account for the relevant period, the eventual transfer of the N32,500,000.00 in issue to the Appellant’s International Banking Division from the Corporate Division, as he had deposed. Indeed, in answer to the question of whether there was any statement of account where the money could be found, he responded:
“Not yet”
Further cross examination of DW1 revealed the following:
“Q: See Exhibit T.F. 27 those are also Credit advice from Oshodi branch to International Banking Division?
A: Yes, I confirm
Q: Show me where the advice can be found in Exhibit 21 which is supposed to be the additional of the transfer?
A: These statements cannot be said to be missing there is 6 month interval but we have checked the Statement is not here.
Q: See Exhibit 27 see advice of 19/12/97 shown where the money moved to as oppose(sic) to International Banking Division is there any credit entry?
A: The date is not there I can’t see it here.
Q: See Exhibit 27 can you see N24,426,502 move to International banking division where was it shown.
A: No, the date is not there.
Q: See Exhibit 27 advice debit for N26,071,556.86 moved from Oshodi Branch on 12th January 1998 to International Banking Division is entry in the international banking division?
A: No the entry is not there on the date is not there.
A: None of the Exhibit 27 credit advice is found in Exhibit 21 where they are supposed to be credited.”
DW1 further said under cross-examination:
“I confirmed that I cannot tell the where about of the money in Exhibit 27 and N132,500,000.00”
Again, he admitted:
“Q: When the restructuring was done, as at 12/8/1998 trying to reconcile to know the true standing of the customer?
A: Yes, that is correct.
Q: As at the time the restructuring the account should credit of N355,985,474.36 to the credit of the Claimant?
A: Yes, that is correct.
Q: Does a customer pay interest where his account is in credit?
A: No, any charges will not be a valid application of the interest regime in the Bank.
Q: It is N178 Million moved as a restructured (sic) in(sic) the basis of the Claim that the Claimant is owing?
A: Yes, that is correct.”
DW1 also admitted that the sum of N150 million advanced to the 1st Respondent by the 2nd Respondent through the Appellant, was indeed paid to the Appellant but that it never entered the 1st Respondent’s account.
In my considered opinion, in the light of the fact that the lower Court did not have the benefit of the linkage of the exhibits with the issues in contest, and in view of the evidence of DW1 under cross-examination, which was disconcerting, and largely contradicted his written depositions, the lower Court rightly concluded that the Appellant failed to prove its Counter-Claim against the 1st Respondent. I see absolutely no reason to disturb that conclusion. Issue 5 is therefore resolved against the Appellant.
This appeal therefore succeeds in part. In view of the resolution of Issue 1 in favour of the Appellant, the judgment of the lower Court delivered on 13/2/2017, in favour of the 1st Respondent, is hereby set aside.
Cross Appeal
The cross appeal was premised on the judgment of the lower Court, which has been set aside on the basis of the incompetent 3rd Amended Statement of Claim, that was struck out. There is nothing therefore to consider herein as the carpet has been literally pulled from under the contentions of the 1st Respondent/Cross Appellant. The cross appeal is accordingly hereby struck out.
ABUBAKAR SADIQ UMAR, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother ONYEKACHI AJA OTISI, JCA and I agree with his reasoning and conclusion therein. The law is firmly settled as contained in the provision of Section 2(1) of the Legal Practitioners Act, Cap. L11, 2004 that only a person whose name is on the roll call may append is name and signature on a Court process otherwise such process becomes incompetent. The Supreme Court in the case of Okarika v Samuel (2013) 7 NWLR Pt. 1352 p.19 at p. 45 considered the provision of Section 2(1) of the Legal Practitioners and held thus:
“…The combined effect of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation as interpreted in the decision of this Court in Okafor v Nweke (2007) 10 NWLR (Pt 1043) 521 has given a very clear and succinct definition of a person entitled to practice as a barrister and solicitor. By this definition, it is obvious that the category of persons recognised as authentic must be those circumscribed within the provision of the law. It is not an open cheque or a floodgate for any person outside the profession to usurp the power which is so restrictive…”
The combination of the provisions of Sections 2(1) and 24 of the Legal Practitioners Act is that the signature on a Court process must be that of a named and identifiable person who has satisfied the conditions stipulated in accordance with the provisions of the Legal Practitioners’ Act and so entitled to practice law in Nigeria.
Therefore, for a process to be competent, the person who executes the process must be identified and be shown to be a qualified Legal Practitioner in accordance with Sections 2 and 24 of the Legal Practitioners Act. The law does not permit a situation where Court processes are signed by an identifiable person, whose name is not on the processes, for and/or on behalf of a named legal practitioner. The Supreme Court in the case of SLB Consortium v NNPC (2011) 4SC (Pt. 1) p. 86 state the effect of omission of the name of the signatory on a process as follows:
“…Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e the Legal Practitioners Act)… In this suit the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the law, clearly spelt out in Reg. Trustees of Apostolic Church Lagos v. R. Akindele (Supra) and Okafor V Nweke (Supra) …”
See also the case of F.B.N Plc v Maiwada (2013) 5 NWLR (Pt.1348) p. 444 at p.494 which affirmed the decision of the Supreme Court in Okafor v Nweke (2007) 10 NWLR (Pt. 1043) 521.
The signature of an unidentified person purportedly signed for a Legal Practitioner – Chief Tunde Olojo – on the Amended Statement of Claim at pages 215-224 of the Record of Appeal is incompetent and not capable of activating the rights or obligations of the parties or confer jurisdiction on this Court or the lower Court.
The defect in the Amended Statement of Claim at pages 215-224 cannot be cured by the 2nd Amended Statement of Claim as the foundation upon which the 2nd Amended Statement of Claim is predicated is not only shaken but already broken. An amendment cannot cure a nullity in law. Therefore, the subsequent 2nd Amended Statement of Claim at pages 321-329 of the Record of Appeal is incompetent. The fundamental error in the signing of the Amended Statement of Claim and the subsequent amendments predicated thereon has rendered the entire proceedings in respect thereof a nullity. The judgment of the lower Court in respect of the 1st Respondent’s Amended Statement of Claim is hereby set aside.
I abide by all the consequential orders in the lead judgment.
MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I had the privilege of reading in draft, the lead judgment prepared by my learned brother, Onyekachi Aja Otisi, JCA, just delivered. I agree with his reasoning and conclusion that the judgment of the lower Court be set aside as same was based on incompetent Amended Statement of Claim. His lordship has painstakingly, exhaustively and dispassionately dealt with all the relevant issues in this appeal. I wish to add in summary that the cases of Heritage Bank Ltd vs. Bentworth Finance (Nig.) Ltd (2018) 9 NWLR (Pt.1625) 420 and Bakari vs. Ogundipe & Ors (2020) 5 NWLR (Pt.1768) 1, which introduced the principle of waiver, and appears to have overruled Okafor vs. Nweke (2007) LPELR-2412 (SC); SLB Consortium Ltd vs. N.N.P.C. (2011) 9 NWLR (Pt.1252) 317 and FBN Plc vs. Maiwada (2012) LPELR-9213 (SC), were also overtaken by events as the extant position of the law is as stated by Ngwuta, JSC, (of blessed memory) in the case of Ajibode & Ors vs. Gbadamosi & Ors (2021) LPELR-53089 (SC), shortly before he took his exit from the Supreme Court Bench through the cold hands of death. Delivering the lead judgment of the Court (Eko, JSC, Dissenting), his lordship posited that a party cannot waive the breach of a law notwithstanding his taking part in a proceeding that is founded on faulty process that is not signed according to the stipulation of the law. With this decision, his lordship has restored to the front burner the decision of the full Court of the Supreme Court in FBN Plc vs. Maiwada (supra). For the reasons stated in the lead judgment, which I adopt as mine, I too set aside the decision of the lower Court in respect of the claim of the 1st Respondent and strike out the cross appeal.
Appearances:
Professor Taiwo Osipitan, SAN, with him, Dr. S.A. Adesanya For Appellant(s)
A.J. Owonikoko, SAN, with him, O. Keshinro, Esq. – for 1st Respondent/Cross Appellant
Michael Omorodion, Esq. – for 2nd Respondent For Respondent(s)
