Legalpedia Citation: (2023-03) Legalpedia 59189 (CA)

In the Court of Appeal

Holden at Lagos

Fri Mar 31, 2023

Suit Number: CA/L/878/2007

CORAM

MONICA .B. DONGBAN-MENSEM

OBANDE FESTUS OGBUINYA

ABUBAKAR SADIQ UMAR

PARTIES

DE-JEZE NIGERIA LIMITED.

APPELLANTS

WEMA SECURITIES AND FINANCE PLC

RESPONDENTS

AREA(S) OF LAW

JURISDICTION, CIVIL PROCEDURAL LAW, LAW IN PRACTICE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The appeal queries the correctness of the decision (Ruling) of the High Court of Lagos State (trial Court). The facts of the case which transformed into an appeal are that, the respondent granted import finance facilities to the appellant in the cumulative sum of N13M. The Appellant deposited his property to serve as security for the facilities. The facilities were to be repaid within 90 days of their grants and were terminated in August, 2011. In March, 2003, the appellant could pay only N1,240,000.00. As at December, 2004, the appellant’s debt profile to the respondent stood at N37.7M. The appellant refused to repay the said accumulated sum despite repeated demands by the respondent.  Sequel to that, the respondent beseeched the trail court, via an originating summons praying that the right of the respondent to the property be foreclosed. The originating summons was duly filed and served on the appellant but he neither appeared in court nor filed a response. The trial court granted the order in favour of the respondent. The appellant being dissatisfied with the decision of the trial court has appealed to this instant court.

HELD

Appeal allowed.

ISSUES

1. Whether the learned trial judge had jurisdiction to entertain this suit at the time he did?
2. Whether the provisions of Section 34(1) and Section 34(3) of the Evidence Act as well as Order 32 Rule 14, Order 33 Rule 4, Order 39 Rule 1(4) and Order 44 Rule 4 High Court of Lagos State (Civil Procedure) Rules 2004 are applicable to the Appellant’s application and if they apply at all to what extent would they affect the Appellant’s Application?

RATIONES DECIDENDI

JURISDICTION – THE COURTS ARE COMPELLED TO ACCORD PREMIER ATTENTION TO THE ISSUE OF JURISDICTION

The law compels the courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt.1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Ndual (2018) 2 NWLR (Pt. 1602) 1; Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254.   I will obey this legal commandment so as not to insult the law. –Per-OBANDE FESTUS OGBUINYA, JCA

JURISDICTION – WHAT JURISDICTION CONNOTES

Jurisdiction, a mantra in adjudication, connotes the authority/power of a court to determine a dispute submitted to it by contending parties in any proceeding, see Ajamole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodagbe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548. –Per –  OBANDE FESTUS OGBUINYA, JCA

INGREDIENTS OF JURISDICTION – WHEN IS THE COURT VESTED WITH JURISDICTION

A court of law is invested with jurisdiction to hear a matter when:

“1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and

2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

3. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Modukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Daro v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworka v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to infuse jurisdiction into a court.Per –  OBANDE FESTUS OGBUINYA, JCA

 

ORIGINATING PROCESSES – ORIGINATING PROCESSES MUST BE SIGNED BY A LEGAL PRACTITIONER

It is a settled elementary law that an originating process, like originating summons, must be signed by a legal practitioner, who franked it, or a litigant, in order to infuse validity into it.  Per –  OBANDE FESTUS OGBUINYA, JCA

LEGAL PRACTITIONER – WHO IS A LEGAL PRACTIONER

The legal practitioner, in the mind of the law, is one entitled to practice as a barrister and solicitor and whose name is on the roll of legal practitioners as decreed by the provisions of sections 2 (1) and 24 of the Legal Practitioners Act (hereunder abridged to “the Act”). Per –  OBANDE FESTUS OGBUINYA, JCA

ORIGINATING PROCESS – EFFECT OF AN ORIGINATING PROCESS NOT SIGNED BY A LEGAL PRACTITIONER

In other words, an originating process not signed by a legal practitioner, as stipulated in the above provisions of the Act and the rules of court, is infested with incompetence with the attendant liability of expunction. The incompetence divests the court of the jurisdiction to adjudicate over the action, which hosts it, in deserving circumstances, see Registered Trustees, The Apostolic Church, v. Akindele (1967) NMLR (Pt. 263); Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; Const. Res. (Nig.) Ltd. v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 592; Okonkwo v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 614; Bala v. Dikko (2013) 4 NWLR (Pt. 1343) 52; Braithwaite v. Skye Bank (2013) 5 NWLR (Pt. 1346) 1; FBN Plc. v. Maiwada (supra)/(2013) 5 NWLR (Pt. 1348) 444; Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570; Min., W & T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481; Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19; Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 1375) 466; Dankwambo v. Abubakar (2016) 2 NWLR (Pt. 1495) 157; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd (2016) 8 NWLR (Pt. 1514) 318; Tanimu v. Rabiu (2018) 4 NWLR (Pt. 1610) 505; B.O.I. Ltd. v. Awojugbagbe Light Ind. Ltd. (2018) 6 NWLR (Pt. 1615) 220; Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420; B.L.L.S. Co. Ltd. v. M.V. Western Star (2019) 9 NWLR (Pt. 1678) 489; Yusuf v. Mobil Oil (Nig.) Plc. (2019) 13 NWLR (Pt. 1689) 374; Salami v. Alh. M.J.M. Wuse Family (2019) 13 NWLR (Pt. 1689) 301; Alikor v. Ogwo (2019) 15 NWLR (Pt. 1695) 331; Yusuf v. Mobil Oil (Nig.) Plc (2020) 3 NWLR (Pt. 1710) 1; JVCPP (UK) Ltd. v. Famiyide (2020) 14 NWLR (Pt. 1744) 334; Ajibade v. Gbadamosi (2021) 7 NWLR (Pt. 1776) 475; Solumade v. Kuti (2022) 1 NWLR (Pt. 1810) 31. Per –  OBANDE FESTUS OGBUINYA, JCA

ORIGINATING PROCESSES – A LAWYER’S SIGNATURE ON AN ORIGINATING PROCESS MUST BE FOLLOWED BY HIS NAME

The law insists on the concurrent presence of name and signature of a legal practitioner so as to vest validity and viability in an originating process, see SLB Consortium Ltd. v. NNPC (supra). Put simply, the originating summons was not signed in the spirit and manner prescribed by law. Unarguably, lack of endorsement of an originating summons (originating process) by a lawyer is “a fundamental irregularity that goes to the roots”, see Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd (supra) at 434, per Eko, JSC. –Per –  OBANDE FESTUS OGBUINYA, JCA

 

SIGNATURE & NAME OF A LAWYER – THE POSITION OF THE LAW ON A PROCESS SIGNED BY A LAWYER WITHOUT HIS NAME

Incontestably, there is a contraption/signature which sits atop of a line under which appears G.C. ANYAFULU & ASSOCIATES.  Be that as it may, I am unable to locate, even with the prying eagle-eye of an appellate court, the name of the respondent’s counsel, be it G.C. Anyafulu, Esq., or any other lawyer, before G.C. ANYAFULU & ASSOCIATES which is a law firm par excellence. The name of the respondent’s counsel, who owns the signature/contraption, ought to be sandwiched between the contraption and the law firm. There is total absence of a counsel’s name. In the glaring absence of that, the import is that the signature belongs to G.C. ANYAFULU & ASSOCIATES: a law firm that is disrobed of any authority of a legal practitioner within the firmament of the law. G.C. ANYAFULU & ASSOCIATES is not a natural person that is clothed the right to sign a process in that form. Per –  OBANDE FESTUS OGBUINYA, JCA

ORIGINATING PROCESSES – MEANING OF

An originating/original process, which is issued at the beginning of a judicial proceeding, is any writ or notice by which a defendant is called upon to appear and answer a plaintiff’s declaration/suit. It is a process that lies at the cradle of any action and the first to greet any party that views the record or court file. An originating process initiates and ignites the jurisdiction of a court to entertain a matter. It is a jealous process that does not embrace its accompanying processes in its fold and appellation. Per –  OBANDE FESTUS OGBUINYA, JCA

ORIGINATING PROCESSES – WHETHER OR NOT EVERY COURT PROCESS IS AN ORIGINATING PROCESS

While every originating process is a court process, not every court process is an originating process. It stems from this connotation of an originating process that an accompanying process, such as an affidavit which may be filed contemporaneously with it (originating process), does not come within the lean perimeter of an originating process. In Ajibode v. Gbadamosi (2021) 7 NWLR (Pt. 1776) 475 at 500, Ngwuta, JSC (of the blessed memory), incisively, declared:

I agree with learned counsel for the respondents that the statement of claim when filed supersedes the writ of summons. But this principle is not absolute in its applications. It applies to the contents of the writ of summons and if a new claim is contained in the statement of claim, the new claim cannot be superceded for it is not part of the claim in the writ, and the statement of claim cannot supercede its part. Most of all, if the writ of summons is filed, as in this case in violation of the Legal Practitioners Act and ipso facto null and void the time hallowed principle of the statement of claim superceding the writ of summons will not apply. The writ is a nullity and there is nothing for the statement of claim to supercede. That which is not in existence cannot be superceded by anything. –Per –  OBANDE FESTUS OGBUINYA, JCA

 

ENDORSEMENT OF AN ORIGINATING PROCESSES – THE LEGALITY OF A PROCESS ENDORSED BY A LAW FIRM

As already noted, with a plethora of ex cathedra authorities, at the dawn of this resolution, the issue of endorsement of an originating process, or any process, by a law firm which, in the sight of the law, renders it incompetent, is a quintessence of a jurisdictional question that borders on the jurisdiction of the court. Per –  OBANDE FESTUS OGBUINYA, JCA

 

 

JURISDICTION – WHETHER OR NOT PARTIES CAN BY CONSENT BESTOW JURISDICTION ON A COURT

It admits of no argument that parties cannot by consent, acquiescence, connivance, collusion, compromise, indolence, waiver or any guise bestow jurisdiction on a court where none exists nor oust it of jurisdiction in the presence of one, see Mobil Prod. (Nig.) Unltd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346; Okolo v. UBN (2004) 3 NWLR (Pt. 859) 87; Ukpong v. Comm. for Finance (2006) 9 NWLR (Pt. 1013) 187; Gafar v. Govt., Kwara State (2007) 4 NWLR (Pt. 1024) 375; Mobil Prod. (Nig.) Unltd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346; Oni v. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80; Kawawu v. PDP (2017) 3 NWLR (Pt. 1553) 420; Customary Court of Appeal, Edo State v. Aguele (2008) 3 NWLR (Pt. 1607) 369; FRN v. Solomon (2018) 7 NWLR (Pt. 1618) 201. Moreover, the law has, rightly, declared the provisions of sections 2(1) and 24 of the Act as “matters of substantive law which cannot be waived”, see SLB Consortium Ltd. v. NNPC (supra), at 332, per Onnoghen, JSC; Braithwaite v. Skye Bank Plc. (supra); FBN Plc. v. Maiwada (supra); Ndayako v. Santoro (2004) 13 NWLR (Pt. 889) 187. In effect, jurisdiction as a matter of substantive law is not amenable to waiver so as to avail the respondent. Per –  OBANDE FESTUS OGBUINYA, JCA

ORIGINATING PROCESSES – AN ORIGINATING PROCESS IS THE SPINAL CORD OF A SUIT

It cannot be gainsaid that an originating summons, an originating process, is the spinal cord of a suit. It is the foundation upon which all other processes and proceedings are built on in a matter. In other words, all other processes and proceedings trace their paternity and validity to an originating process. It follows that the originating summons, which is under attack of expulsion, gave birth to all the other processes filed by the feuding parties and the proceedings in the action which transfigured into the appeal. Per –  OBANDE FESTUS OGBUINYA, JCA

ORIGINATING PROCESSES – WHETHER OR NOT THE INCOMPETENCE OF AN ORIGINATING PROCESS AFFECT OTHER PROCESSES AND PROCEEDING

Given this interwoven judicial relationship, the incompetence of the originating summons pollutes the purity of the other processes and proceedings, inclusive of the foreclosure order, and, de jure, render them incompetent and a nullity, see Agu v. Odofin (1992) 3 SCNJ 161; Adelekan v. Elu-Line NV (2006) 2 NWLR (Pt. 993) 33; Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Ikweki v. Ebele (2005) 11 NWLR (Pt. 936) 397; Aderibigbe v. Abidoye 92009) 10 NWLR (Pt. 1150) 592; Odunze v. Nwosu (2007) 13 NWLR (Pt. 105) 1; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; General Electric Co. v. Akande (2010) 18 NWLR (Pt. 1225) 596; FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141; Ikechukwu v. FRN (2015) 7 NWLR (Pt. 1457) 1; Ikuepenikan v. State (2016) 9 NWLR (Pt. 1465) 518; Allanah v. Kpolokwu(2016) 6 NWLR (Pt. 1509) 1; Japhet v. State (2016) 6 NWLR (Pt. 1509) 602; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd. (2016) 9 NWLR (Pt. 1516) 126;  Fasuyi v. PDP (supra); FRN v. Dairo (supra); SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agwu v. Julius Berger (Nig.) Plc (2019) 11 NWLR (Pt. 1682) 105. The reason is obvious. They have no substratum to stand and claim any validity. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592.  In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513.  Per –  OBANDE FESTUS OGBUINYA, JCA

JURISDICTION – LEGAL EFFECT OF A COURT DIVESTED OF JURISDICTION

Where a court is divested of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be mired in the quicksand of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola(2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra);Isah v. INEC (supra) Per –  OBANDE FESTUS OGBUINYA, JCA

NULLITY – MEANING OF

In the eyes of the law, nullity denotes: “Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect”, see Lasisi v. State (2013) 12 NWLR (Pt.1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. Per –  OBANDE FESTUS OGBUINYA, JCA

NULLITY – CONSEQUENCE OF NULLITY

The dire consequence of a nullity is dismal.  If a decision or proceeding is stained with nullity, it is void and taken as if it was never given or made, see Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Furthermore, such a decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party, who possesses it, nor does it impose any obligations on its victim party, see Ajibola v. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The bounden duty of a court is to set aside a null order ex debito justitiae in that it does not exist in law, see Mamman v. Hajo (supra); N. A. C. B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364. Since the lower court’s decision, delivered on 20th May, 2005, is marooned in the murky ocean of nullity, it must be mowed down by the unbiased judicial sword of this court.  In the end, I have no choice than to resolve the issue one in favour of the appellant and against the respondent. Per –  OBANDE FESTUS OGBUINYA, JCA

JUDGMENT – THE APPROPRAITE ORDER TO BE MADE WHERE A COURT LACKS JURISDICTION

Where the jurisdiction of a court to hear a matter is eroded, the order it makes is plain. It is one of striking it out, see Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (Pt. 927) 366; Uwazuruike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt. 1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1071) 347; Ikechukwu v. FRN (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt.1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Min., W.O.T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481. The principle applies where an appellate court finds that a lower court lacked the jurisdiction to entertain the case on appeal before it, see Statoil (Nig.) Ltd. v. Inducon (Nig.) Ltd. (2021) 7 NWLR (Pt. 1774) 1. This will be the destiny of the respondent’s suit which meandered, with the measured millipede speed of court processes, to this court. Per –  OBANDE FESTUS OGBUINYA, JCA

CASES CITED

STATUTES REFERRED TO

1. Evidence Act
2. High Court of Lagos State (Civil Procedure) Rules
3. Court of Appeal Rules 2021
4. Legal Practitioners Act

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