CORAM
PARTIES
1. ADEWALE DEBAYO-DOHERTY2. OLUSEGUN DEBAYO DOHERTY3. BABALOLA DEBAYO-DOHERTY 4. KENN MOTORS5. EXPRESS NEWSPAPER6. REDEEMED CHRISTIAN CHURCH OF GOD APPELLANTS
1. MR. ADEKUNLE MOGBA2. MR. OJO MOGBA3. OTUNBA TUNDE ONAKOYA 4. DENNY MOTORS5. FIRM MOTORS6. PRINCE & QUEEN MOTORS RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondents instituted an action against the Appellants at the Lagos State High Court seeking declarative and injunctive reliefs with respect to a piece of land situate, lying and being at Mile 8 on Lagos-Ikorodu Road, off Idi-Iroko Village, Onigbongbo, Ikeja. The Respondents were granted all reliefs claimed. Subsequently, the Appellant filed a motion to set aside the judgment on the ground that the writ of summons and statement of claim were signed in a Firm’s name, that is, in the name of Niran Owadusi & Co., and thus rendered the proceedings incompetent. The trial court dismissed the application on the ground that the court was functus officio. Dissatisfied with the trial court’s decision, the Appellants have appealed to this court.
HELD
Appeal Allowed
ISSUES
Whether the action is competent, having been commenced with a writ of summons signed in a firm name
RATIONES DECIDENDI
SIGNING OF COURT PROCESS (ES) –EFFECT OF A WRIT OF SUMMONS SIGNED IN THE NAME OF A LAW FIRM
“This Court had this to say in the case of Fatoki V Akintola & Anor (2018) LPELR – 45142 (CA) about the practice and procedure of signing Court process(es) and the effect of a writ of summons signed in the name of a law firm:
“My perusal of the record of appeal deemed filed and served on 21/9/2015 resulted in the discovery of two Writs of Summons filed on the 25/7/2005 and 17/6/2008 both issued and endorsed in the name of “A. Ajibola & Co” and “A. Ajibola Esq.” respectively as contained on pages 8-8A and 9-9A of the Record of Appeal. The first Writ of Summons being the initiating process in this matter while the second having at its foot note as AMENDED 17TH DAY OF JUNE, 2008 PURSUANT TO ORDER OF HON. JUSTICE AWOLALU DATE THE 17TH DAY OF JUNE, 2008. It is not in contest that the Writ of Summon dated and filed at the lower Court on 25/7/2005 was the process that kick started the action in Suit No: HED/23/2005 and also not in doubt that amendment was sought of same which brought about the Writ of Summon of 17/6/2008, 3 years later. A Court of law will have jurisdiction to hear a matter if the case comes before it initiated by due process of law among other ingredients determining the jurisdiction of the Court. See the cases of A. U. Abba Tukur v. The Govt. of Taraba State (supra) and Dr. Ekeozu v. Ogbasi (supra) cited by the Appellant’s Counsel. The question here is whether the amendment sought and obtained on the 17/6/2008 has rectified the defect in the initiating process to the effect of assuming jurisdiction by Court of trial to proceed with the proceedings in the matter. In an effort to answer this question Femi Sarumi Esq., submitted that where a Writ of Summons is not properly signed, the Suit is not validly initiated and the Court is robbed of jurisdiction to try such matter. But M. A. Shittu Esq., in reliance to the decision in the Unity Bank Plc v. Denclag Ltd (supra) submitted that the defect in the initiating Writ of Summons can be rectified by amendment as done in this case by the trial Judge on 17/6/2008; which gave him the jurisdiction to proceed with the matter to conclusion. He referred to and relied on unreported decisions of this Court in Appeals Nos: CA/I/90/2006 and CA/AK/157/2013. I am of the opinion that where a provision of law has clearly and unambiguously provided for a particular act or situation, the Courts have a duty to enforce the act or situation. In this wise, the issue of substantial justice has to take its subsidiary position as Equity always follows the law. The Learned Counsel for the Appellant made frantic efforts in distinguishing the much relied decision of Unity Bank Plc and the case at hand which I earlier stated in this judgment. I have seen cogent reasons in the distinction and subscribed to it thereof. It is even a settled principle of law that parties cannot acquiesce to lack of jurisdiction by Court or by consent confer jurisdiction on the Court. See: Ijebu-Ode Local Govt. v. Adedeji Balogun (supra) where it was held that, “where in fact the Court has no jurisdiction, the active support or ignorance or silence of the parties cannot vest the Court with the requisite jurisdiction which is the essential pre-condition to the exercise of judicial power.” The Learned Respondents’ Counsel’s call to treat this case as an “exception” to the case of Okafor v. Nweke (supra) in avoidance of punishing the litigant is of no moment. The party who failed to comply with the rule has himself to blame as it is a well settled principle of law that a process signed by a law firm is in-competent and in-curably defective, null and void. See Odejayi & Anor v. Henley Ind. Ltd. (Supra). The Writ of Summons that initiated proceedings in this matter is grossly defective and the amendment of same by an order of the trial Court holds no water. See the case of Ministry of Works &Transport, Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) where the Apex Court had this to say: – “The effect of signing of an originating process by a law firm is that the originating process is in-competent, fundamentally defective and legally non-existent. Consequently, such originating process cannot be cured by an amendment and the suit commenced by such originating process is incompetent ab initio. It was dead at the point of filing.”
Flowing from the above, I found and hold that the Writ of Summons that initiated proceedings in this matter as in-competent and the lower Court was in grave error to have assumed jurisdiction to hear and determine the matter.”
SIGNING OF COURT PROCESS (ES) – RATIONALE FOR THE PRINCIPLE THAT LEGAL PRACTITIONERS AND NOT LAW FIRMS SHOULD SIGN COURT PROCESS(ES)
“In Olumoye & Ors v Adelakun & Ors (2018) LPELR 44283 (CA) this Court also held thus:
“It is not in doubt that O. A. ADEYEMI & CO., is a Law Firm. Being a Law Firm, it does not qualify as a “Legal Practitioner” as recognized by Sections 2(1) and 24 of the Legal Practitioners Act. By a combined reading of Sections 2(1) and 24 of the Legal Practitioners Act therefore, a Legal Practitioner is a person entitled to practice Law in Nigeria, as a barrister and solicitor, either generally or for the purpose of any particular office or proceeding. To qualify as such Legal Practitioner, the name of such person must be on the roll; which is a Register of Legal Practitioners kept at the Supreme Court Registry. Now, it has been determined and thus settled by the Supreme Court (and this Court) in a plethora of decided cases that, a Law Firm is not a legal practitioner within the context of Sections 2(1) and 24 of the Legal Practitioners Act. That, a Law firm is not a person who has been or is capable of being called to the Bar as to have its name on the roll, so as to enable it practice as a barrister and solicitor. This is so, only human beings can be called to Bar and have their names on the roll. See Okafor v. Nweke (2007) 10 NWLR (pt.1043) 527; SLB Consortium Ltd v. NNPC (2011) 9 NWLR (pt.1252) 317 at 332; Alhaji Tajudeen Babatunde Hamzat & Anor v. Alhaji Saliu Ireyemi Sanni & Ors (2015) LPELR 24302 (SC); Shell Petroleum Dev. Co. of Nigeira Ltd v. Sam Royal Nig Ltd (2016) LPELR – 40062 (SC); FBN Plc v. Maiwada (2013) 5 NWLR (pt.1348) 444 at 488 paragraphs A – D and Braithwaite V. Skye Bank Plc (2013) 5 NWLR (PT.1346) 1. The Supreme Court explained the rationale for this principle in Okafor V. Nweke (Supra) as follows: “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 are agreed 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……. 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.” It was then held that, the Motion on Notice, Notice of Cross-Appeal and Applicant’s Brief of Argument in Support of the said Motion, all signed by the Law Firm known as J.H.C. Okolo SAN & Co. are incompetent, as the said J.H.C. Okolo SAN & Co. is not a legal practitioner whose name is on the roll. In the instant case, the Originating Processes, to wit: the Writ of Summons and Statement of Claim were signed in the name of O. A. ADEYEMI & CO. It is not in doubt that O. A. ADEYEMI & CO., is not a Legal Practitioner whose name is on the roll. By the authorities cited above, the said Originating Processes are incompetent, null and void. The authorities have clearly decided that a Court process signed in the name of a Law Firm is incompetent, null and void and thus robs the Court of the jurisdiction to hear and determine on it. The Supreme Court decided in Okafor V. Nweke (Supra) that the issue is one of substantive Law and not a procedural matter that can be waived. See also KLM Royal Dutch Airlines & Anor V. Chief Yakubu Toba & Ors (2014) LPELR – 23993 (CA); F.B.N. Plc V. Maiwada (Supra); Vesa Foods Agencies Ltd V. Access Bank Plc (2014) LPELR -22441 (SC) and Oketade V. Adewunmi& 4 ORS(2010) 8 NWLR (PT.1195) 63. That being so, the Writ of Summons and Statement of Claim were irredeemable invalid, null and void. It also means that there was no competent suit which the trial Court could hear and determine. The trial Court therefore, had no jurisdiction to hear and determine on those invalid processes. By extension, this Court cannot pronounce on the judgment of the trial Court which is the product of such void proceeding. The trial Court, and by extension this Court, have been deprived of the jurisdiction to hear and determine the matter. It would therefore be an exercise in futility to proceed to determine on this appeal. On the whole therefore, I hold that the Writ of Summons and Statement of Claim issued in the name of O. A. ADEYEMI & CO. is invalid, null and void, and therefore cannot sustain the proceedings and judgment of the trial Court. Consequently, those processes being invalid, null and void are hereby struck out. The result is that there is no valid Originating Process to sustain the proceedings and judgment subject of this appeal. This appeal is accordingly struck out. I make no order on costs.” Per TSAMMANI, J.C.A (Pp. 9-13, para. E).”
SIGNING OF COURT PROCESS (ES) – PROCEDURE FOR THE SIGNING OF PROCESSES FILED IN COURT
The case of SLB Consortium Ltd v NNPC (Supra) laid down the procedure for the signing of processes filed in Court. It is the signature of the counsel first, followed by the name of the counsel then the party who the council represents and then followed by the name and address of the firm. In Igbinedion V Anita (2018) 15 NWLR (PT 1642) 221 at 235, the Supreme Court held that there must be full disclosure of identity of persons signing a Notice of Appeal, to assist the Court to confirm that the person who signed the document is a Legal Practitioner indeed”.
CASES CITED
None
STATUTES REFERRED TO
Legal Practitioners Act|