IN THE COURT OF APPEAL OF NIGERIA
On Thursday, The 13th day of February, 2014
CA/K/298/2010
BETWEEN
1. COSMOS EZE ................. Appellants
2. SUNDAY OKAFOR
3. OSITA JOHN
4. DANIEL OFILI
5. GODWIN EMESIANI
6. INCORPORATED TRUSTEES OF AUTO PARTS DEALERS ASSOCIATION, SABON-GARI, KANO.
V.
DONATUS OKECHUKWU .............. Respondent
APPEARANCES
M. N. Duru for Appellant
Ifeanyi Ogenyi for Respondent
MAIN JUDGMENT
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Kano State High Court of Justice, delivered on 11th September, 2009 by Patricia A. Mahmoud J.
The Appellants were the Defendants at the lower Court while the Respondent was the Plaintiff.
By writ of summons dated 2nd April, 2001 and an amended statement of claim dated 24th March, 2004 the Respondent sued the Appellants claiming jointly and severally the following reliefs;
"a. An order of perpetual injunction, restraining the defendants, their agents, privies, servants etc from further harassing or threatening the plaintiff or dealing in any way with his goods or wares or otherwise in the market, in the house or elsewhere.
b. Special damages in the sum of =N=566,500.00 being the value of the goods carted away and sold out below the price value and given to the 1st defendant OR the specific return of the said goods.
c. Return of the household items listed in paragraph 6 hereof.
d. General damages for loss of business, inhuman and degrading treatment, damages to reputation and good will of business N5,000,000.00.
e. Court rate interest and cost".
A brief fact of the case was that the Appellants and the Respondent all belonged to the 6th Appellant Association. The Association has and operates a constitution which can be seen at pages 296-306 of the printed record of appeal. Showed or embedded in the 6th Appellant's constitution is a provision for a body responsible for settling dispute amongst members.
On 18th February, 2001 the 1st Appellant gave to the Respondent an envelop containing the sum of $2,600 to help him deliver at Lagos to one I.K (1st Appellant business associate). When the 1st Appellant realised that his message was not delivered he confronted the Respondent about same. He (the 1st Appellant) reported the matter to the 6th Appellant (an association which they both belong). The 2nd to 5th Appellants were then officers of the 6th Appellant (the association).
After listening to both parties the 6th Appellant decided that the Respondent should pay the 1st Appellant the sum in issue ($2,600). The Respondent agreed to pay the 1st Appellant back the money by giving him various items of spare parts totalling the sum of N236,820.00. The transaction was reduced into writing and signed by the Respondent on 22nd February, 2002.
The Respondent subsequently, turned around to demand for the return of the goods (spare parts), the 1st Appellant had to report back to the 6th Appellant (the association) which in turn invited the police who later charged the Respondent to Court for criminal breach of trust.
It was after the Respondent was charged to Court that he brought the present action by writ of summons and statement of claim dated 2nd April, 2001. The writ and statement of claim was later amended. By the amended statement of claim dated 24th March, 2004 the Respondent claimed the relief(s) as earlier stated above in this judgment.
The original writ and the amended writ of summons together with the statement of claim were all endorsed by NELSON UZEOGBU & CO, a non legal practitioner.
Before issues were joined, counsel to the 2nd to 5th Appellants prayed the Court to strike out their names on the ground that they were not necessary or proper parties to the suit. The Court refused the application, but however it struck out the names of the police officers thus the matter proceeded against the 1st to 6th Appellants.
Issues were joined and witnesses were taken on both sides, the Court delivered a considered judgment on 30th September, 2009 in favour of the Respondent.
Dissatisfied with the said judgment the Appellants filed a notice of appeal containing six (6) grounds of appeal. Leave of this Court was later sought for and obtained on 2nd May, 2013 for the Appellant to raise and argue for the first time before this Court a fresh issue on the competence of the entire suit and/or jurisdiction of the trial Court to try the matter in the light of the fact that the suit was not initiated through due process of the law and to amend the notice of appeal to include that fresh issue raised.
In their brief of arguments the Appellants raised four issues for the determination of the Appeal.
They are adumbrated as follows;
"ISSUE ONE:
WHETHER OR NOT from the circumstances of this matter, especially the originating processes filed therein, the lower Court's jurisdiction was properly ignited to hear this matter. Ground one is covered by this issue.
ISSUE TWO
WHETHER the learned trial judge was right to have given judgment against the 2nd, 3rd and 5th Defendants who are agents of a disclosed principal?
This issue takes care of grounds 2 and 3 of the amended Notice Appeal.
ISSUE THREE
WHETHER THE LEARNED trial Court was right when it found for the Plaintiff in this matter on the basis of conjunctures and speculations against the weight of evidence, AND Whether he applied the correct principle of law in the award of damages in this matter. This covers grounds 4, 6 and 7.
ISSUE FOUR
WHETHER THE LEARNED trial judge was not wrong when he held that the conditions for customary Arbitration stipulated in the case of OWOSILE VS SOTUMBO were not met in this case. Ground 5 of the amended Notice of appeal is covered by this issue".
On behalf of the Respondent, four issues were distilled for the determination of this Appeal. The issues are reproduced as follows:
"3.1 Whether the trial Court's exercise of the matter has been validly faulted by the Appellants.
3.2 Whether the learned trial judge was right to have given judgment against the 2nd, 3rd & 5th Defendants.
3.3 Whether the learned trial judge based his judgment on conjectures and speculations as against the weight of evidence.
3.4 Whether the learned trial judge applied the correct principles of law in the award of damages in this matter.
3.5 Whether the learned trial judge was right when he held that the conditions for customary Arbitration stipulated in the case of Owosile vs. Sotunbo were not met in this case".
Counsel to the respondent in his brief of arguments, Responded to the issue of jurisdiction raised by the Appellants by formulating one issue for determination as follows:
ISSUE ONE
"Whether or not from the circumstances of this matter, especially the originating process filed therein, the lower Court's jurisdiction was properly ignited to hear this matter".
In his submission on this issue the learned counsel to the Appellants argued that the issues of competence of a suit which affects jurisdiction of the Court can be raised at any stage of the proceedings in the Court of first instance or in Appeal Courts. He maintained that the issue can be raised by any of the parties or by the Court suo motu. The counsel contended that there are sufficient facts ex facie on the record establishing want of jurisdiction of the Court and that it is therefore the duty of the Court to raise the issue suo motu if parties fail to draw the Court's attention to it. The Court referred to the cases of;
LABOUR PARTY VS INEC (2009) ALL FWLR (PT.478) PG.233 AT 244; AMALE VS SOKOTO LOCAL GOVERNMENT (2012) ALL FWLR (PT.618) PG.833 AT 846 PARA.; MOZIE VS MBAMALU (2006) ALL FWLR (PT.341) PG.1203.
Learned counsel for the Appellants further contended that before a Court can assume jurisdiction over any matter, the said matter must have been properly initiated through due process of the law, He referred the Court the cases of;
PORBEN VS PABOD FINANCIAL (2001) FWLR (PT.63) PG.84; CA MADUKOLU VS NKEMDILIM (1962) 1 ALL NWLR 587.
Learned counsel submitted that the present matter was not initiated through a due process of law in that the originating process as can be seen from the record of this Court were both endorsed by the law firm of NELSON UZUEGBU & CO. who is not a legal practitioner known to and prescribed by sections 2, 4, 7, 23 & 24 of the Legal Practitioner's Act 1962.
He argued that the writ of summons and the annexed statement of claim are incurably defective and could not have ignited the jurisdiction of the trial Court since the matter was not initiated by due process of the law. Learned counsel referred the Court to the case of; S.C.C NIG, LTD AND ANOTHER VS MR LEVI EKENMA (2009) ALL FWLR (PT.497), PG.53 AT 77.
He contended that the said originating process runs contrary to the law and a host of Courts decisions. He referred the Court to the cases of;
OKAFOR VS NWEKE (2007) 10 NWLR (PT.1043) PG.521; SLB. CONSORTIUM LTD VS NNPC (2011) 3 SCNJ 185 AT 191; THOMAS VS MAUDE (2007) ALL FWLR (PT.361) AT 1749; NEW NIGERIAN BANK PLC VS DENCLAG (2004) ALL FWLR (PT.228) AT 606; GLOBAL TRANS-OCEANICO S.A VS FREE ENTERPRISES NIG. LTD (2001) FWLR (PT.40) AT 1706.
The Court was urged to follow these decisions and to hold that the originating processes filed by the Respondent which were signed by person not known to the law as legal practitioner, are defective, null and void and that the lower Court's jurisdiction has not been properly ignited.
Learned counsel for the Appellants urged the Court to resolve this issue in their favour and set aside the entire trial conducted by the learned trial judge for want of jurisdiction.
Learned counsel to the Respondent on the other hand in his reply on the competence of the trial Court to adjudicate over the matter referred to the case of; B.M LTD VS WOERMANN-LINE (2009) 13 NWLR (PT.1157) AT 179.
He submitted that in the instant case, the trial Court was duly constituted by a qualified judge, the subject matter of the case falls within the jurisdiction of the trial Court and the matter was initiated by due process of law.
The learned counsel to the Respondent contended that the jurisdiction of a Court is not inferred or imagined but statutory. He argued that it is the statute which creates the Court that defines its jurisdiction. Learned counsel referred the Court to the cases of;
SHELIM VS GOBANG (2009) 12 NWLR (PT.1156) 435 AT PG 452 and
TTMOTHY VS OFORKA (2008) 9 NWLR (PT.1091) 204 AT PG 213.
The Respondent counsel contended that based on the above cited authorities, the 1999 Constitution of the Federal Republic of Nigeria (as amended) is supreme over all other laws in Nigeria including the Legal Practitioner's Act. He submitted that the Constitution has vested on the High Court the jurisdiction to entertain matters of this nature and therefore no other law, statute or authority cited by the Appellant's counsel can deprive the High Court of the jurisdiction vested on it by the Constitution.
He argued that the Appellant's counsel limited the scope of the jurisdiction of a trial Court only to the point that a matter has to be properly initiated through due process of the law. The case of PORBENI (SUPRA) and host of other similar authorities cited by the Appellant's counsel according to the Respondent counsel are not on all fours with the instant case and are distinguishable.
Learned counsel maintained that judgment was entered in this case by the trial Court in 2009, and that the judgment debtor's counsel at that time (FELIX EZE ESQ) opened discussions to settle a portion of the judgment debt in full and final settlement. He argued that when the Appellant initially filed this appeal they did not complain of the mode of signing the writ of summons. Learned counsel insisted that this new challenge against the writ is belated and the Appellants are estopped from raising it.
He contended that the writ was properly endorsed in accordance with the Kano State High Court Civil Procedure Rules 1988 (Order 5 Rule 12(1)) which provides as follows;
"Where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the plaintiffs address and the legal practitioner's name or firm and a business address of his within the jurisdiction and also if the legal practitioner is the agent of another, the name of the firm and business address of his principal."
Learned counsel submitted that the above provision makes it permissible for a writ to be issued in the name of the firm of legal practitioner and same shall be competent and urge the Court to so hold.
He opined that the Supreme Court has warned that technical justice is no justice at all and a Court of law should distance itself from it, and always ensure to do substantial justice between the parties before it and not be bugged down by technicalities. He referred the Court to cases of
AKPAN VS BOB (2010) 17 NWLR PT.1223 421 AT 478 - 479; and SANNI VS AGARA (2010) 2 NWLR PT.1178 AT 399.
The Court was urged to resolve this issue in favour of the Respondent.
"Subject to the provisions of any act, civil proceedings may begun by writ, originating summons, originating motion or petition as hereinafter provided"
It is trite law that a Court process can only be signed by a legal practitioner. In OKAFOR VS NWEKE (SUPRA) the Supreme Court held that;
"by virtue of section 24 of the Legal Practitioners Act, cap 207 laws of the federation of Nigeria 1990, a legal practitioner is a person entitled in accordance with the act to practice as a barrister or solicitor as a barrister and solicitor, either generally or for the purpose of any particular office or proceeding. A law firm is not a legal practitioner and therefore cannot practice as such by filling processes in Nigerian Courts. Only human beings actually called to the Bar can practice or practice by signing documents".
It is very clear from page 2 of record of Appeal that the writ and other originating processes giving rise to this appeal were all signed by NELSON UZUEGBU & CO. This fact has not been disputed by the Respondent but has only argued that it is in compliance with the Kano State High Court (Civil Procedure) Rules 1988.
It is trite that processes filed in Courts are to be signed by a named counsel and the effect of processes signed without the name of counsel as in this case is incurably bad. See SLB CONSORTIUM LTD VS NNPC (2011) NWLR PART 1252 PG.317 AT 323 where the Supreme Court held PER WALTER SAM. NKANU ONNOGHEN JSC as follows;
"All processes filed in Court are to be signed as follows;
a. first, signature of counsel, which may be any contraption;
b. secondly, the name of the counsel clearly written;
c. thirdly, who counsel represents.
d. Fourthly, name and address of legal firm.
Once it cannot be said who signed the 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 Legal Practitioners Act. There must be strict compliance with the law. In the instance case, there was a signature of counsel, but no name of counsel. A signature without the name is incurably bad..."
Furthermore, section 2(1) of the Legal Practitioners Act Cap 207 of the Laws of the Federation of Nigeria 1990 provides as follows;
"Subject to the provisions of this act, a person shall be entitled to practice as a Barrister and Solicitor if, and only if, name is on the roll".
It is clear from the above provision of the law that the person who is entitled to practice as a legal practitioner must have his name on the roll.
"a person entitled in accordance with the provisions of this Act to practice as a Barrister or as a Solicitor, either generally or for the purpose of any particular office or proceedings".
The [combined] effect of the provisions of section 2(1) and 24 of the Legal Practitioners Act is that, for a person to be qualified to practice as a legal practitioner, he must have his name on the roll otherwise, he cannot engage in any form of legal practice in Nigeria.
The question now is whether NELSON UZUEGBU & CO. is a legal practitioner recognized by Nigerian law?
I am in agreement with the submission of the Appellants' counsel that the answer is in the negative. Nelson Uzuegbu & Co. being a firm of Legal Practitioners which is inanimate cannot be found in the roll of Legal Practitioner and can therefore not sign any Court process for filing in any Court in Nigeria.
I find support in this opinion of mine from the consolidated and unreported decision of the Supreme Court in the cases of First Bank Plc v. Salman Maiwada (Suit No. SC/202/2002) and Franphino Pharmaceutical Ltd & Anor v. Jana International Ltd (Suit No. SC/269/2005) delivered on 25th May, 2012, where the Court held Per Fabiyi JSC:
"In my considered opinion, the words employed in drafting section 2(1) and 24 of the Act (meaning the Legal Practitioners 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 can not be found in the roll of this Court"
Also in the case of SCC Nig. Ltd and Another v. Mr. Levi Ekenma (2009) All FWLR (Pt. 497) page 53 at 77 the Court of Appeal held that:
"A firm of Legal Practitioners is not a legal practitioner given the provision of section 2 and 24 of Cap. 207 Laws of the Federation of Nigeria, 1990 and therefore cannot legally sign and or file any processes in the Courts".
Learned counsel for the Respondent had relied heavily on the provision of the Order 5 rule 12(1) of the Kano State High Court (Civil Procedure) Rules 1988 which provides as follows:-
"Where a Plaintiff sues by a legal practitioner, the writ shall be endorsed with the Plaintiff's address and the legal practitioner's name or firm and a business address of his within the jurisdiction and also if the legal practitioner is the agent of another, the name of firm and business address of his principal" (underline mine).
A careful reading of the said provision of the Kano State High Court Civil Procedure Rules reveals that it is not its intendment to confer authority on form of Legal Practitioners which is inanimate to sign Court process.
I am of the opinion that the submission of the learned counsel to Respondent on this issue is misconceived.
It is worthy to state that issues of jurisdiction goes to the root of the powers of the Court to adjudicate, where a Court lacks jurisdiction, any step taken in the proceeding would be a nullity no matter how well conducted. See the case of; CHRISTABEN GROUP LTD VS ONI (2008) 11 NWLR (PT.1097) PG 84 AT 95.
In B.M. Ltd. v. Woermann-line (2009) 13 NWLR (Pt.1157) page 148 at 179 where the Supreme Court held as follows:
"Before any Court of law assumes jurisdiction so as to determine or adjudicate on a Cause or matter, the Court must be competent. A Court is competent when:
a. the Court is properly constituted as regards members and qualifications of the bench and no member is disqualified for one reason or another; and
b. the subject matter of the case is within the Court's jurisdiction
c. the matter is initiated by due process of law."
In Porbeni's case (supra) at page 94, it was held thus:
"A Court is competent when;
(c) the case comes before the Court by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity, however well conducted and decided...
The validity of the issue of writ of summons and/or it's service are fundamental conditions precedent to the assumption of jurisdiction by the Court."
See: MADUKOLU VS NKEMDILIM 1962 2 SCNLR 341; SLB CONSORTIUM LTD VS NNPC (2011) 9 NWLR PART 1252.
I have carefully perused the record of the instant appeal before this Court, it is very clear particularly pages 2 & 7 that the writ of summons and statement of claim in SUIT NO. K/214/2001 were signed by NELSON UZUEGBU & CO, not a legal practitioner. Therefore the suit was not initiated by due process as same is incompetent and the lower Court cannot assume jurisdiction to determine or adjudicate in such suit. See; B.M. LTD VS WOERMANN-LINE (SUPRA);
SLB CONSORTIUM LTD VS NNPC (SUPRA) AT PG. 321; CHRISTABEN GROUP VS ONI (SUPRA).
Therefore, the trial Courts proceeding and/or hearing of the matter rest on nothing. This issue having disposed of this appeal, it will amount to an academic exercise considering the other issues raised by the parties in this Appeal.
The decision of the lower Court is hereby set aside having been stripped of jurisdiction. There is merit in this appeal and it is hereby allowed. There is no order as to costs.
DALHATU ADAMU, J.C.A.:
I have had the advantage of going through the lead judgment of my learned brother Aboki JCA in this appeal. I agree with his reasons and the conclusion reached in the appeal. I also hold that there is merit in the appeal. Accordingly I hereby allow the appeal and set aside the decision of the trial court for absence of jurisdiction. I also made no order on costs.
ITA G. MBABA, J.C.A.:
I agree with the reasoning and conclusions of my learned brother Abdu Aboki JCA.
I abide by the consequential orders in the lead judgment.