ADEKUNLE AJIBODE & ORS v. DAUDA GBADAMOSI & ORS

The original writ of summons tagged “General writ of summons” is at page 2 of the records. It was issued by Chief Toye Coker & Co. The writ contained an untrue statement to the effect that Chief Toye Coker & Co. of 6, Ojugbele Street, Off Metun Road Otta, Ogun State is “Legal Practitioner for the Plaintiffs “Chief Toye Coker & Co.” is not a single Legal Practitioner as described in the writ. Rather it indicates a firm of legal practitioners. I accept the argument of Learned counsel for the Appellants, which his colleague for the Respondent did not counter, to the effect Chief Toye Coker & Co. cannot validly sign the writ of summons, an initiating process. I will add that the said law firm of Chief Toye Coker & Co; cannot sign any valid Court process, not being a legal practitioner within the meaning and intendment of the Legal Practitioners Acts: Section 2(1) of the Act provides “Section 2(1) subject to the provisions of this Act a person shall be entitled to practice as a Banister or as a Barrister and Solicitor either generally or for the purpose of any particular office or proceedings.” In my humble view “a person” as used in Section 2(1) of the Act means a natural (not a juristic) person who must have satisfied the condition precedent to call, and must have been called, to the Bar in Nigeria; or admitted under special circumstances to engage in law practice in Nigeria. The person referred to in the subsection must have been duly called to the Bar and must have been enrolled in the Supreme Court of Nigeria. Even learned counsel for the Respondents agreed, by implication, that Chief Toye Coker & Co. is not a person contemplated in Section 2(1) of the Act. The locus classicus on this point, Okafor vs Nweke (Supra) relied on by the Appellants, but the facts of which the Respondent tried to distinguish from the facts of this case, 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. See also FBN Plc& 3 Ors vs Maiwada & 2 Ors (2012) 5 SC (Pt. 111) 1, Alawiye vs Ogunsanya (2012) 12 SC (Pt.111) 1 A process signed in violation of the provisions of the Act cannot be said to have been duly filed before the Court. In the eye of the law, such process does not exist and so cannot invoke the judgment of the Court. See Ogli Oko Memorial Farm Ltd &Anor vs Nigerian, Agricultural Cooperative Bank Ltd (2008) 4 SCNJ 436. –

“Learned counsel for the Respondents argued that the statement of claim which he says is a part of the initiating process, supercedes the writ of summons. In the suit giving rise to this appeal the originating process is the writ of summons. The subsequent statement of claim is not part of the initiating process. I agree with Learned counsel for the Respondents that the statement of claim when filed supercedes 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. What purports to be a writ of summons in this case became a nullity upon being filed. It could not ignite the jurisdiction of the Court and a purported process filed pursuant to it does not fare better than the writ. –

Learned counsel for the Appellants argued that the trial Court and ipso facto the Court below had no jurisdiction in the matter. If the Trial Court lacked jurisdiction to entertain the matter, it follows that the Court below had no jurisdiction to hear the appeal arising therefrom. Jurisdiction of a Court is donated to it by either the constitution or by a statute. See Miss Oluchi J. Anyanwoko vs Chief Mrs. Christy O. N. Okoye & 4 Ors. (2010) 1 SC (Pt. 11) 30. The jurisdiction of the Court remains dormant until the claim before the Court ignites it. If the claim has not been brought before the Court by due process the claim cannot invoke the Court’s jurisdiction, and the Court labours in vain in entertaining the suit. This is the case here. The trial Court lacked jurisdiction to entertain the suit nor has the Court below the competence to determine the appeal arising from proceeding which are void. 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 vsBentworth 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”.-

“This Court has held in quite a number of cases that by Section 2(1) of the Legal Practitioners Act, Cap 207, Laws of the Federation of Nigeria, 1990 that no person or institution other than that prescribed in the Act shall be allowed to practice as legal practitioner in Nigeria. The said Section 2(1) provides as follows: – “Subject to the provisions of this Act, a person shall be entitled to practice as barrister and solicitor if, and only if, his name is on the roll.” Section 24 of the said Act states that: – “Legal Practitioner” means a person entitled in accordance with the provisions of this Act to practice as a barrister or solicitor, either generally or for the purposes of any particular office or proceedings.” The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner in Nigeria, he must have his name on the role of Legal Practitioners, otherwise, he cannot engage in any form of legal practice including the signing of legal documents for use in Court. That was the position taken by this Court in Okafor v Nweke (2007) All FWLR (pt. 368) 1016, where the originating process was signed by a law firm of J.H.C. Okolo, SAN & Co. The same position was taken in First Bank of Nigeria Plc& 3 Ors v Maiwada& 2 Ors (2012) 5 SC (pt. 111) 1, Alawiye v Ogunsanya (2012) 12 SC (pt. 111) 1, Chukwudi Nnalimu & Ors v Sunday Elodumuo & Ors (2018) LPELR – 43898 (SC), Okarika & Ors vs Samuel &Anor (2013) 7 NWLR (pt. 1352) 19 amongst others. –

“The substantive law touching on the issue of nullity of signing a legal process by a law firm is found in both Sections 2(1) and 24 of the Legal Practitioners Act. Section 2(1) of the Legal Practitioners Act, Cap. 207 of the Laws of the Federation of Nigeria, 1990, provides that: “Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.” Similarly, Section 24 of the Legal Practitioners Act defines a “legal practitioner” to be “a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceeding.” 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. See Per ONNOGHEN, J.S.C. in Okafor & Ors V. Nweke & Ors (2007) LPELR-2412(SC) (PP. 10-11, PARAS. D-A). –

“The Writ of Summons in this suit filed and signed by “Chief Coker & Co.” is substantially and fundamentally defective to give the general proceedings any life. I am satisfied with the legal exegesis my learned brother, Per NWEZE, J.S.C. made in Salami V. Muse (2019) LPELR-47038 (SC) (PP 8-19, PARA. B) while he relied on First Bank Of Nigeria Plc & Ors V Maiwada And Ors [2012] 5 SC (PT. 111) 1 and sundry authorities. This equally abundantly represents the position of the law on this matter. He expatiated thus: …the issue of jurisdiction constitutes an exception to this general principle for it…could be raised for the first time before an appellate Court, with or without leave…it can never be too late in law to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration…Indeed, leave of the appellate Court is unnecessary since it can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so… Thus, although it is desirable that preliminary objections on issues of jurisdiction be raised early, once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. What is more, it is always in the interest of justice, where necessary, to raise jurisdictional issues so as to save time and costs and to avoid a trial which may ultimately amount to a nullity…in… FBN Plc and Anor v Alhaji Salman Maiwada (supra)], an eminent panel of seven distinguished Justices of this Court, unanimously, endorsed the Court’s earlier decision. Thus, the position is that…it is now settled that all Court processes…must be signed in the manner as prescribed by the Act, that is to say, by a person qualified as a legal practitioner and enrolled in the Supreme Court of Nigeria. Any Court process signed in the business names of a firm’s name…having been rendered incurably defective ab initio are liable to be struck out…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…One should not talk of technicality when a substantive provision of the law is rightly invoked. –

There are two types of jurisdiction – procedural and substantive. The latter is a matter of substantive law; while the former is a matter of procedural law regulating the practice and procedure guiding the manner suits are initiated, tried etc.: AG. Kwara State & Anor. V. Adeyemo & Ors. (2016) LPELR -4114 (SC) where Rhodes-Vivour, J.S.C., re-stated the distinction between the two thus: that substantive jurisdiction is vested in the Court by the enabling statute or the Constitution; that “no litigant can confer jurisdiction on the Court”, and it cannot be waived. And, on the other hand, that a party can waive any aspect of procedural jurisdiction by acquiescing in the defect. See also Ndayako v. Dantoro (2004) 13 NWLR (pt. 889) 187 at where Edozie, J.S.C. pointedly stated: It is noteworthy that a distinction must be drawn between two types of jurisdiction, viz: jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst the litigant can waive the former, no litigant can confer jurisdiction in the Court where the constitution or statute … says the Court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the Court e.g. where a writ has been served outside jurisdiction without: Re Orr V. Erwing (1883) 22 Ch.D 456, 463 —. –

“In the case of Noibi v. Fikolati (1987) 1 NWLR (pt. 52) 619 at 632, it was held that where a party consented to wrong procedure at the trial Court and infact suffered no injustice, it would be too late to complain on appeal that a wrong procedure was adopted. Thus, where an action was commenced by an irregular procedure and a defendant did not complain but took active part therein, he cannot later be heard to complain and take advantage of the irregularity. See also Nasco Management Services Ltd v. A.N. Amaku Transport Ltd (1999) 1 NWLR (pt. 588) 576 at 588.

“The Courts these days lean in favour of doing substantial justice in a case rather than hanging on crass technicality to re-open a procedural irregularity that had been waived by the party who could or should have timeously raised it: Nneji & Ors. v. Chukwu & Ors. (1988) 6 SCNJ 132 at 138 – 140; Atanda v. Ajani (1989) 3 NWLR (pt. 111) 511, at 545; Ndayako & Ors. v. Dantoro & Ors. (supra).

“A defendant, who though aware of any defect in the writ of summons, still took steps in the proceedings is estopped from subsequently raising the issue of the defect: Nwoye v. Nigeria Road Construction Ltd (1966) NMLR 254; Sadiku Obatemi Samuel v. Samuel Orisanwo (1967) NMLR 27; in Nigeria Produce Marketing Co. Ltd v. Compagne Nogu D’importation (1971) 1 NMLR 223, the defendant who, submitting to the jurisdiction of the trial Court, had asked for a date to file pleadings (as these Appellants, as defendants, did at the trial Court) was held to have “taken steps” in the proceedings and thereby estopped from complaining subsequently about the defect in the writ. On the contrary, a defendant (unlike the defendants/Appellants herein) who entered “conditional appearance” or was appearing in protest would not be estopped or barred from subsequently raising the issue of any defect on the writ: AGUDA: PRACTICE & PROCEDURE IN SUPREME COURT, etc. (1988) paragraphs 3.121 – 3.122 at page 44. This Court, in J.S. Sonuga & Ors. v. Kehinde Anadein & Ors. (1967) 1 ALL NLR 91; (1967) NMLR 77 stated poignantly that it is inequitable for a defendant, who not objecting to a defective process, accepted it and acted on it; thus, leading the Plaintiff to believe that the defence had no objection hereto (as it does no harm to him), to subsequently raise it. The Court of justice will hold such conduct to be inequitable and unconscionable. Equity acts in personam. The doctrine of estoppel by conduct, now codified as Section 169 of the Evidence Act, 2011 is all about this. Section 169 provides – 169. When one person has, either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing. At the risk of repetition: a defendant who consented to a wrong procedure at the trial cannot, should not, be heard on appeal to say that the wrong procedure was used: Colony Dev. Board v. Kamson & Ors (1955) 21 NLR 75; CFAO v. Onitsha Industries Ltd (1932) 11 NLR 102; G.A. Akhiwu v. The Principal Lotteries Officer, etc. (1972) 1 ALL NLR (pt. 1) 229. The principle has been as old as that. And it has, for that long, been with us. –

“In Okafor v. Nweke (2007) ALL FWLR (pt. 368) 1016, the objection to the defect (that the motion paper was signed by a firm of lawyers – J.I.C. OKOLO, SAN & Co) was taken up timeously without fresh or further steps taken by the respondent upon his becoming aware of the defect. That alone distinguishes Okafor v. Nweke (ibid) from the instant case. Again, in Okafor v. Nweke (ibid) the objection was not by way of a notice or ground of appeal. The right to raise a plea as to any defect in the originating process, be it a charge in a criminal proceeding or a writ of summons in civil proceeding, is not a right to be taken up first on appeal as a ground appeal, but only by way of preliminary objection at the trial: Edu v. C.O.P (1952) 14 WACA 163. Preliminary objection and appeal process are governed by two different and mutually inconsistent procedures. While the essence of preliminary objection is to terminate the suit or appeal in limine: appeal is by way of review or rehearing. For the purpose of the instant matter the High Court (Civil Procedure) Rule, 1987 of Ogun State had made adequate provisions for the defendant to challenge or object to any defective process not taken out in accordance with its due process. Therefore, any objection to the competence of the originating process of the trial High Court must be in accordance with the Rules of procedure of the trial Court. The Rules of appeal to this Court are governed by the rules of procedures made for this Court alone. Nothing in either the Supreme Court Act or the Supreme Court Rules permits the appellants herein to formulate their preliminary objection to the competence of the suit or the processes therein at the trial Court in the Supreme Court by way of a ground of appeal, as the instant. In any case, by virtue of Section 233(1) of the 1999 Constitution, as amended, the Supreme Court has no jurisdiction to entertain appeals from any High Court. It also has no jurisdiction to entertain preliminary objection or objections to the competence of either the action or any process therein at the High Court. ?Order 2 Rule 9(1) of the Supreme Court Rules – providing for preliminary objection to the hearing of an appeal, does not avail the Appellants herein. So also Order 2 Rule 29(1) – providing for an application to strike out or set aside a process for non-compliance with the Supreme Court Rules. As the Litigant at the Supreme Court cannot invoke the Supreme Court Rules to set aside or strike out any process filed at the trial Court; so also, the Supreme Court cannot be invited to usurp the functions of the High Court except the matter comes to it by way of appeal through and from the intermediate Court. –

“The issue canvassed in the sole ground of appeal is a fresh point of law on the procedural jurisdiction of the trial Court. It is a fresh issue. It was neither raised at nor considered by the trial Court and the Court of Appeal. Being a fresh issue, it can only be raised at this Court with leave of Court: Isa Bello v. FRN (2018} LPELR 44465 (SC) 6. This appeal, raising a fresh issue neither raised at nor considered by the two Courts, which was filed as of right, is incompetent: A.I.C. Ltd. v. NNPC (2005) 5 SCNJ 316; A.G. Adamawa State & Ors. v. Jonah Jauro Ware & Ors. (2006) 4 NWLR (pt. 970) 399. It is accordingly struck out. The exception to this rule is when the jurisdictional issue is one of substantive jurisdiction as was the case in Gaji & Ors. v. Paye (2003) 7 SCM 55 cited by the Appellants. In that case the issue was whether Sections 39 & 41 of the Land Use Act had not ousted the jurisdiction of the High Court over land in non-urban area. Durwode v. The State (2000) 12 SC (pt. 1) 1 is also about the substantive jurisdiction the trial Court had to entertain the case. These two cases do not avail the Appellant herein – the issue in the appeal being one of procedural jurisdiction. By virtue, my Lords, of Section 233(2) & (3) of the Constitution appeal does not lie to this Court as of right on issues of fact or mixed law and fact. The question: whether Chief Toye Coker & Co. is a natural person or a juristic persona is one of fact, provable and proven only by empirical evidence – viva voice or affidavit evidence. Apart from there being no such evidence on the Record before us; the issue raised by the sole ground of appeal is one of mixed law and facts. It is trite that this Court lacks jurisdiction to entertain issues of fact or mixed law and fact unless leave was first sought and obtained previously for such issues to be raised. This appeal not backed by law is an exercise in abuse of Court’s process: R-Benkay (Nig) Ltd v. Cadbury (Nig) Ltd (2012) S NWLR (pt. 1306) 536.-