Legalpedia Citation: (2024-03) Legalpedia 40933 (SC)

In the Supreme Court of Nigeria

Holden At Abuja

Fri Mar 8, 2024

Suit Number: SC.296/2013

CORAM

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice

Mohammed Lawal Garba Justice

Helen Moronkeji Ogunwumiju Justice

Adamu Jauro Justice

Tijjani Abubakar Justice

PARTIES

ALHAJI SHEHU ASHAKA

APPELLANTS

SAMSON CHIDI NWACHUKWU

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONTRACT, EVIDENCE, JURISDICTION, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Respondent commenced the action leading to this appeal before the High Court of Plateau State via a Writ of Summons and an Affidavit in Support of the Claims. He filed a Motion ex parte for the suit to be placed under the Undefended List. He claimed from the Defendant the sum of N2,000,000.00 being the balance due to the Plaintiff from the Defendant on a road contract which the Plaintiff executed at NDLEA office at Laminga for the Defendant and which sum Defendant despite repeated demands has failed to pay.

The Appellant responded by filing a Notice of Intention to Defend and an Affidavit in support thereof. When the matter came up for hearing, counsel for the Respondent consented that the matter be transferred to the General Cause List and the suit was so transferred. It was however heard without the filing of pleadings pursuant to Order 23 Rule 3 of the Rules of Court.

At the close of trial and after the addresses of counsel, the trial Court delivered its judgment wherein it granted the reliefs sought by the Respondent. The Court ordered the Appellant to pay to the Respondent, the sum of N2 million and awarded interest at the rate of 22% per annum from July 2001 till the date of the judgment and post-judgment interest at the rate of 10% per annum.

The Appellant’s appeal to the Court below was allowed in part. The Court held that there was no basis for the award of 22% pre-judgment interest and set aside the same.

The Appellant was discontented by the judgment of the lower Court, hence this appeal.

HELD

Appeal allowed

ISSUES

1. Having regard to the fact that the process commencing this action was not signed by a legal practitioner known to law, whether the whole proceeding, including the judgment of the lower Court, is not a nullity?
2. Whether the lower Court was right when it affirmed the decision of the trial Court wherein it held that there were no material contradictions in the Respondent’s case to warrant a dismissal of same?
3. Whether the lower Court was right when it upheld the decision of the trial Court that Exhibit “A” constituted a binding contract between the Appellant and the Respondent?
4. Whether the lower Court was right when it held that the trial Court properly evaluated the evidence before it in arriving at the conclusion that there was a binding contract between the Appellant and the Respondent?
5. Whether the lower Court was right when it went outside exhibit “A” by relying on the conduct of the parties and other surrounding circumstances as indicatives of a binding contract between the parties?
6. Whether the lower Court was right when it affirmed the decision of the trial Court that the failure of the Appellant to call Engr. Gyang as a witness was fatal to the Appellant’s case?

RATIONES DECIDENDI

UNDEFENDED LIST PROCEDURE – THE UNDEFENDED LIST PROCEDURE – WHETHER A MOTION EX-PARTE IS AN ORIGINATING PROCESS UNDER THE UNDEFENDED LIST PROCEDURE

At the time when the action before the trial Court was instituted, Order 23 Rule 1 of the Plateau State High Court (Civil Procedure) Rules, 1987 was the relevant enabling provision for the Undefended List Procedure. The Rule is reproduced below:

“Whenever an application is made to a Court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand or any other claim and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.”

From the above provision, it is clear that the application referred to therein is for the issuance of a Writ to be placed under the Undefended List. The Writ of Summons itself is the originating process, not the motion ex parte. Furthermore, it is trite that actions are, as a general rule, commenced by Writ of Summons, Originating Summons, Originating Motion or Petition. A motion ex parte is not a valid mode for the commencement of action under the Plateau State High Court (Civil Procedure) Rules, 1987 and under most rules of Court. This is reinforced by Order 1 Rule 1 of the said Rules which is set out below:

“Subject to the provisions of any Act, civil proceedings may be begun by writ, originating summons, originating motion or petition, as hereinafter provided.”

Similar provisions are contained in most High Court Rules across the country. – Per Adamu Jauro, JSC

JURISDICTION – THE IMPORTANCE OF JURISDICTION – WHEN AND BY WHO THE ISSUE OF JURISDICTION CAN BE RAISED – PRECONDITIONS FOR A COURT TO HAVE JURISDICTION

Moreover, the argument as to the exact mode by which the suit before the trial Court was commenced is immaterial. The issue is one which affects the jurisdiction of the Court and the Court is entitled to raise and decide the same if it is noticed from a consideration of the record of appeal. See OWNERS OF THE MT “MARIGOLD” V. NNPC & ANOR (2022) LPELR- 56858(SC). Thus, what is important is whether or not the originating process, the Writ of Summons, was executed as dictated by law and the implication thereof.

As I have stated earlier, the issue under consideration borders on the jurisdiction of the Court. Jurisdiction is the power or competence of a Court to entertain a matter or adjudicate over a dispute submitted to it. Jurisdiction is to legal proceedings what oxygen is to human beings for without jurisdiction, no proceedings can be conducted. Jurisdiction is of fundamental importance in our jurisprudence and a Court must treat it with all sense of importance. It must not be treated lightly as its absence will render null, void and of no effect, every step taken in the proceedings. Any proceedings conducted in the absence of jurisdiction will amount to a nullity, an exercise in futility and a wasteful dissipation of energy.

Hence, in order to avoid wasting precious judicial time, a Court must determine whether or not it has jurisdiction immediately the issue arises. AKERE & ORS V. GOV OF OYO STATE & ORS (2012) LPELR-7806 (SC); DINGYADI & ANOR V. INEC & ORS (2010) LPELR – 40142 (SC); NDIC V. CBN & ANOR (2002) LPELR – 2000 (SC); SHELIM & ANOR V. GOBANG (2009) LPELR – 3043 (SC); SHITTA-BEY V. AG FEDERATION & ANOR (1998) LPELR-3055 (SC).

It is due to the prominent role of jurisdiction in the adjudicatory process that it is allowed to be raised at any time, even on a final appeal to this Court, as the Appellant has done herein. In fact, where the parties have for some reason refused or fail to raise the issue of jurisdiction, a Court is empowered to do so as the parties cannot waive the absence of jurisdiction or confer jurisdiction on a Court by agreement. See STANBIC IBTC BANK PLC V. LONGTERM GLOBAL CAPITAL LTD & ORS (2021) LPELR – 56661 (SC); CONTROLLER GENERAL OF PRISONS & ORS V. ELEMA & ANOR (2021) LPELR-56219(SC); SOCIO-POLITICAL RESEARCH DEVELOPMENT V. MINISTRY OF FCT & ORS (2018) LPELR-45708 (SC).

In the locus classicus of MADUKOLU V. NKEMDILIM 1962 NSCC 374, it was decided that in order for a Court to have jurisdiction to entertain an action, the following must be present:

1. The Court must be properly constituted as regard numbers and qualifications of members of the bench, and no member is disqualified for one reason or another;

1. The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction; and

1. The case comes before the Court initiated by due process of the law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

See also NGERE V. OKURUKET XIV (2023) 14 NWLR (PT. 1904) 361; ADEYEMI V. ACHIMU NDIC (2023) 1 NWLR (PT. 1866) 583; OKONKWO V. F.R.N. (2022) 8 NWLR (PT. 1833) 427; NWOBIKE V. F.R.N. (2022) 6 NWLR (PT. 1826) 293; NWORKA V. ONONEZE-MADU (2019) 7 NWLR (PT. 1672) 422; NWACHUKWU V. NWACHUKWU (2018) 17 NWLR (PT. 1648) 357; D.E.N.R. LTD. V. TRANS INTL BANK LTD. (2008) 18 NWLR (PT. 1119) 388. All these preconditions must be present and the absence of any one of them will deprive the Court of the competence to entertain the suit. – Per Adamu Jauro, JSC

ORIGINATING PROCESS – MEANING AND IMPORTANCE OF AN ORIGINATING PROCESS – MEANING OF LEGAL PRACTITIONER – PEOPLE THAT CAN SIGN ORIGINATING PROCESSES

The Appellant’s grouse against the jurisdiction of the trial and the lower Court is that the originating process (Writ of Summons) was not signed by a legal practitioner known to law. As the name suggests, an originating process or initiating process as it is sometimes called is the process that births legal proceedings such as a suit or an appeal. Being the process by which actions are commenced, its importance cannot be over-emphasised. In order for an action to be competent, the initiating process itself must not suffer from any fundamental defect, otherwise the action will be on quicksand. It is therefore not in doubt that the competence of an originating process goes to the root of the jurisdiction of the Court. Given the relationship between an originating process and jurisdiction, a competent originating process is crucial in activating the jurisdiction of Court. On the other hand, the incompetence of an originating process such as the Writ of Summons contaminates the entire proceedings, including processes filed and the judgment or decision rendered. Such an incompetent originating process is inchoate, lifeless and in the eyes of the law, non-existent. It can therefore not give life to the proceedings before the Court, thereby rendering every step taken null and void ab initio. See AKINGBULUGBE V. NIGERIAN ROMANIAN WOOD INDUSTRIES LTD (2023) LPELR- 59948 (SC); ANI & ORS V. EFFIOK & ORS (2023) LPELR – 59783 (SC); KENTE V. ISHAKU & ORS (2017) LPELR – 42077 (SC); OKPE V. FAN MILK PLC & ANOR (2016) LPELR – 42562 (SC); BRAITHWAITE V. SKYE BANK PLC (2012) LPELR – 15532 (SC).

One of the conditions for the validity of an originating process is that it must be signed by the Plaintiff where he represents himself or by a legal practitioner if the Plaintiff is represented by one. The Legal Practitioners Act (LPA) makes provisions for who can practice as a barrister and solicitor or, simply put, a legal practitioner in Nigeria. At this juncture, it is important that we have recourse to Sections 2(1) and 24 of the LPA, which are set out below:

Section 2(1):

2. (1) Subject to the provisions of this Act, a person shall be entitled to practise as a barrister and solicitor if, and only if, his name is on the roll.”

Section 24:

“In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say-

“Legal practitioner” means a person entitled in accordance with the provisions of this Act to practise as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.”

From the foregoing provisions, it is abundantly clear that only a person whose name is on the roll of legal practitioners in Nigeria can practice as a barrister and solicitor and of course sign legal processes in that capacity on behalf of a litigant. – Per Adamu Jauro, JSC

SIGNING OF COURT PROCESSES – WHETHER THE LEGAL PRACTITIONERS’ ACT ENVISAGES THE SIGNING OF COURT A PROCESS THROUGH AN UNKNOWN PROXY – PEOPLE WHO ARE TO SIGN COURT PROCESSES – WHERE A COURT PROCESS IS NOT PROPERLY SIGNED AND FILED

The LPA does not envisage the signing of Court processes through an unknown proxy. Court processes are either to be signed by parties or their legal practitioner and nothing more. Once it cannot be said who signed a Court process, it is automatically rendered incompetent. See OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 521; AKINGBULUGBE V. NIGERIAN ROMANIAN WOOD INDUSTRIES LTD (supra); SOLUMADE V. KUTI (2022) 1 NWLR (PT. 1810) 31; NETWORK SECURITIES LTD V. DAHIRU & ORS (2022) LPELR – 57835 (SC); ALIKOR V. OGWO (2019) 15 NWLR (PT. 1695) 331; N.L.C. V. F.G.N. (2018) 7 NWLR (PTE 1619) 561; OKARIKA V. SAMUEL (2013) 7 NWLR (PT. 1352) 19; SLB CONSORTIUM LTD. V. N.N.P.C. (2011) 9 NWLR (PT. 1252) 317.

The originating processes in VF WORLDWIDE HOLDINGS LTD. V. DANA SERV. LTD. (2023) 15 NWLR (PT. 1908) 573 was similarly signed in a manner similar to how the Writ in this case was signed. This Court upheld the decision of the Court of Appeal declaring the originating processes as incompetent. At page 600, paras. A – E of the report, this Court expatiated thus:

“From the above, it is without a doubt that the name and identity of the signatory to the appellant’s originating process is an unknown person.

This is an anomaly which the law treats as fundamental since the requirement of the law is that a Court process must be signed either by a party or his legal practitioner. None of the aforesaid persons signed the originating process of the appellant in this case, rather the process was signed for Prof. Yemi Osinbajo, SAN by an unnamed proxy.

This Court is not in a position to speculate on the identity of this unknown proxy, and evidence cannot be taken to resolve his identity. The decision of this Court on the incompetence of Court process, not properly signed and filed, remains consistent and unequivocal. See Aya v. Nkanu (2022) 11 NWLR (Pt. 1840) 157; Skypower Exp Airways v. U.B.A. Plc (2022) 6 NWLR (Pt. 1826) 203; Ajibode v. Gbadamosi (2021) 7 NWLR (Pt. 1776) 475; R. A. Oliyide & Sons v. O.A.U., Ile-Ife (2018) 8 NWLR (Pt. 1662) 546; Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521.

I agree with the decision of the Court below that the originating process filed by the appellant before the trial Court is incompetent.”

In view of the above, there is no gainsaying that the Respondent’s Writ of Summons was irredeemably and fatally incompetent. It never activated the jurisdiction of the trial Court in the first place and in the eyes of the law, no proceedings were ever conducted before the trial Court. Every step taken before the trial Court and the lower Court was predicated on the incompetent Writ of Summons. It is synonymous to placing something on nothing, it is bound to fall apart like a deck of cards.

It is worth mentioning that aside from the fact that the signing of a Court process by a person other than a party or a legal practitioner recognized to practice law in Nigeria offends the provisions of the Legal Practitioners Act, a subsisting Act of parliament in force, it is of utmost importance that such improperly signed processes be rejected and struck out in order to weed out quacks disguising as legal practitioners. – Per Adamu Jauro, JSC

ORIGINATING PROCESS – THE EFFECT OF AN ORIGINATING PROCESS SIGNED BY A PERSON OTHER THAN A PARTY OR LEGAL PRACTITIONER RECOGNISED TO PRACTICE LAW – CONDUCT OF PARTIES WHEN SIGNING AN ORIGINATING PROCESS ON BEHALF OF SOMEONE

The effect of an originating process signed by a person other than a party or a legal practitioner recognised to practice law in Nigeria by virtue of the provisions of Sections 2(1) and 24 of the Legal Practitioners’ Act, has been firmly settled to finality by this Court in a plethora of authorities. It is a fundamental defect that robs the Court of jurisdiction to entertain the suit. See Okafor vs Nweke (2007) 10 NWLR (Pt. 1043) 521; SLB Consortium Ltd. vs N.N.P.C (2011) 9 NWLR (Pt. 1252) 317; Al-Masmoon Security Ltd Vs Pipelines Marketing Products Co. Ltd. (2022) LPELR – 56859 (SC) 10 – 12 D – A; Onyekwuluje vs Animashaun (2019) 4 NWLR (Pt. 1662) 242 @ 261 D; VF Worldwide Holdings Ltd Vs Dana Services Ltd. (2023) 15 NWLR (Pt. 1908) 573; SPDC v. Sam Royal Hotel Nig. Ltd. (2016) 8 NWLR (Pt. 1514) 318.

In Al-Masmoon Security Ltd Vs Pipelines Marketing Products Co. Ltd. (supra), the Notice of Appeal was signed by an unknown proxy of the named legal practitioner, Emmanuel Esene of Emmanuel Esene & Co. The process was signed with the prefix “pp” before the named Emmanuel Esene. An attempt was made in the reply brief, in reaction to the preliminary objection to the competence of the notice of appeal, to contend that the prefix “pp” means “Principal Partner.” This contention was rejected having regard to the known dictionary meaning of “pp” which is “per pro” meaning “by proxy.” Similarly, the prefix “f” before a name is universally known to mean “for” or “on behalf of.”

Reference was made to the decision of this Court in SLB Consortium Ltd Vs NNPC (supra) where it was held, inter alia at 337 – 338 G – A per Rhodes-Vivour, JSC:

“Once it cannot be said who signed a process, it is incurably bad…

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 Vs R. Akindele (supra) [(1967) 7 NWLR 263] and Okafor Vs Nweke (supra).

In Onyekwuluje Vs Animashaun (supra) at 261 D, this Court held thus:

“The cases of Okafor Vs Nweke (supra); Oketade Vs Adewunmi (supra) [(2010) 8 NWLR (Pt. 1195) 63] 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.” – Per K. M. O. Kekere-Ekun, JSC

ORIGINATING PROCESS – THE PARTIES TO SIGN ORIGINATING PROCESSES – WHERE THE PERSON WHO SIGNED AN ORIGINATING PROCESS CANNOT BE ASCERTAINED OR IDENTIFIED

The law is now beyond argument, for being firmly established by endless pronouncements of this Court over the years, that an originating process used to initiate a legal action or an appeal, as the case may be, which invokes the requisite jurisdiction of the Court over the action or appeal, must be signed either by the party or by a legal practitioner, as defined under the Legal Practitioners Act, if represented, in order for it to be valid and competent in Law to properly ignite the jurisdiction of the Court. The law remains that once the person who signs such an originating process either as a party or legal practitioner, cannot be ascertained or identified on the process, such a process would be invalid and incompetent in law to render it incapable of invoking the requisite jurisdiction of the Court and vesting it with the judicial power and authority to entertain and adjudicate over the action, Onyekwuluje v. Animashaun (2019) 4 NWLR (Pt. 1662) 252 (SC), NNPC v. Roven Shipping Ltd. (2019) 9 NWLR (Pt. 1676) 67 (SC), Ogunseinde v. SGB Ltd (2018) 4 NWLR (Pt. 1624) 230 (SC) Tanimu v. Rabi’u (2018) 4 NWLR (Pt. 610) 505 (SC). – Per M. L. Garba, JSC

ORIGINATING PROCESS – WHERE AN ORIGINATING PROCESS IS INVALID AND INCOMPETENT

Once an originating process is invalid and incompetent on any cognisable ground in law, it would deprive a Court of law of competence and jurisdiction to entertain and adjudicate over a matter, Edegbe Ltd. v. Okomobor (2003) 1 FWLR 9Pt. 188) 512, Yakubu v. F. M. B. N. Ltd. (2015) 11 NWLR (Pt. 1470) 232, Okpe v. Fan Milk, Plc. (2017) 2 NWLR (Pt. 1549) 282 (SC). – Per M. L. Garba, JSC

JURISDICTION – WHERE THE TRIAL COURT LACKS JURISDICTION

The lack or want of jurisdiction on the part of the trial Court has, by law, fatally infested the competence and jurisdiction of both the Court below and this Court, as stated and re-stated in several decisions; including Lakanmi v. Adene (2003) 10 NWLR (Pt. 828) 353 at 367, Tsokwa Motors Ltd. v. UBA, Plc (2008) 2 NWLR (Pt. 1071) 347 at 377 (SC), Nwoko v. Waoboshi (2020) 13 NWLR 9Pt. 1742) 395 at 400 (SC), Oni v. Cadbury Nig. Plc. (2016) LPELR-26061 (SC), Ebebi v. Esemokumokumor (2022) 1 NWLR (Pt. 1812) 463 (SC), Aliyu v. APC (2022) LPELR-57345 (SC).

With the finding that the suit before the trial Court was incompetent and deprived the Courts of the requisite jurisdiction to adjudicate over it, the appropriate and proper order to issue in respect thereof, is of striking out the suit. See Obi v. INEC (2007) 7 SC, 268 Oloriode v. Oyebi (1984) SCNR, 390, Adesokan v. Adetunji (1994) 5 NWLR (Pt. 348) 540, Gombe v. P.W. Nig. (1995) 6 NWLR (Pt. 402) 402. – Per M. L. Garba, JSC

CASES CITED

STATUTES REFERRED TO

1. Plateau State High Court (Civil Procedure) Rules, 1987
2. Legal Practitioners’ Act
   

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