ONYEKACHI AJA OTISI
ABDULLAHI MAHMUD BAYERO JCA
MUHAMMAD IBRAHIM SIRAJO JCA
APPELLANTS
ASSET MANAGEMENT CORPORATION OF NIGERIA (AMCON)
RESPONDENTS
APPEAL, BANKING, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE
The 1st Appellant was, at all times material to this case, the customer of the defunct Afribank Nigeria Plc. The 2nd and 3rd Appellants are the Managing Director/Chief Executive Officer and Executive Director respectively, of the 1st Appellant. In the course of their business relationship, the defunct Afribank Nigeria Plc at various times offered three separate credit facilities to the 1st Appellant for its business undertakings. The credit facilities were partly secured by, among other things, the personal guarantee of the 2nd and 3rd Appellants to repay the full amount of the facilities plus accrued interest in the event of default by the 1st Appellant. According to the Respondent, as at 10th November 2010, the total outstanding on the said credit facilities stood at the sum of N1, 474, 343, 833.83 (One Billion, Four Hundred and Seventy-Four Million, Three Hundred and Forty-Three Thousand, Eight Hundred and Thirty-Three Naira and Eighty-Three Kobo) comprising of principal and accrued interest.
Following the expiration of the tenors of all the three facilities, Afribank formally called up the facilities and the 1st and 2nd Appellants’ guarantee to repay the facilities but the debts remained outstanding and have not been repaid. In the meantime, the said debt portfolio of the Appellants was taken over by the Respondent herein, Asset Management Corporation of Nigeria (AMCON) as a non-performing bank asset prior to the liquidation of Afribank. AMCON has now stepped into the place of Afribank as the creditor, Afribank having divested itself of its rights over the said debt when it transferred same to AMCON, hence the institution of the suit at the Federal High Court, Lagos Judicial Division (the lower Court) by AMCON in order to recover the outstanding debt.
The suit of the Respondent, as Plaintiff, was filed under the Undefended List, pursuant to the order for leave granted it by the lower Court.
On 16/11/2012 when leave to enter the suit on the Undefended List was granted, the suit was adjourned to 19/12/2012 for hearing. The matter was not heard until 27/03/2013. On that morning of the hearing, i.e., 27/03/2013, the Appellants filed a Notice of Intention to Defend. The lower Court proceeded with the suit and entered judgment for the Respondent in terms of its relief before the Court.
By a motion on notice before the lower Court, the Appellants sought for an order of the lower Court setting aside its judgment and dismissing the Respondent’s suit, on the ground that the Writ of Summons initiating the suit was incompetent, as same was neither signed by a Legal Practitioner nor the Plaintiff, which renders the judgment of the lower Court a nullity for want of jurisdiction. The lower Court heard the motion and dismissed same in a ruling delivered the same day. Aggrieved, the Appellants made the instant appeal.
Appeal allowed
Whether the lower Court was not in error in holding that the non-signing of the writ of summons dated 18 October, 2012 was a mere irregularity which could be waived?
Considering the facts and circumstances of the case, particularly the notice of appeal dated 12 April, 2013, whether the lower Court was not in error when it held that the appellants’ application dated 8 May, 2013 amounts to an abuse of Court process?
“Functus Officio’ is a latin phrase meaning that the task has been accomplished and so there is nothing left to be done. In practice, the idea of this latin phrase is that the specific duties and functions that an officer was legally empowered and charged to perform have been wholly accomplished, rendering the officer bereft of the authority and competence based on the original commission. Generally, the position of the law is that once the Court has delivered its decision on a matter or over an issue, it becomes functus officio with regards to that matter or issue. The rationale is that a Court cannot sit on appeal over its own decision, having not been vested with power to do so. Once a Court has decided a matter or any issue, it ceases to be seized of it, and cannot reopen it. See Integrated Realty Ltd vs. Odofin & Ors (2017) LPELR-48358 (SC), Buhari vs. INEC (2008) LPELR-814 (SC), Pacers Multi-Dynamics Ltd & Ors vs. Access Bank (2022) LPELR-59572 (SC), Dingyadi vs. INEC & Ors (2011) LPELR-950 (SC). There are however, notable exceptions to the application of the rule that a Court cannot revisit, review, reopen matters it has decided, one of which is where the judgment or order is a nullity for want of jurisdiction due to failure to comply with an essential provision or failure to fulfil a condition precedent. The other exceptions are where the judgment was a default judgment or where it was obtained by fraud or illegality. – Per M. I. Sirajo, JCA.”
In view of the fact that the judgment was given on the merits, the lower Court may not have the jurisdiction to revisit it, having become functus officio, unless the application falls within one of the exceptions. In the motion of 08/05/2013 filed before the lower Court by the Appellants seeking the setting aside of the judgment of 27/03/2013, one of the grounds upon which the application was predicated was that the Writ of Summons initiating the suit was incompetent, null and void as same was not signed by the Plaintiff or its Legal Practitioner, thereby depriving the Court of jurisdiction to entertain the suit. This ground sets the Appellants’ application within the ambit of the exceptions to the rule of functus officio. The lower Court can never be functus officio when the question before it concerns a challenge to its own jurisdiction to adjudicate in the first place. The lower Court therefore has the power to hear and determine the application as it did, and in the same token, this Court is imbued with the requisite jurisdiction to hear and determine appeal against the decision or ruling of the lower Court as rendered in that application. – Per M. I. Sirajo, JCA
“Unlike the Civil Procedure Rules of some State High Courts in Nigeria, the Federal High Court (Civil Procedure) Rules mandatorily require a Plaintiff or his counsel to sign the Writ of Summons before submitting it for filing. Non-compliance with that mandatory provision as captured by Order 3 Rule 12(3) is fatal to any originating process. Failure to sign a Writ of Summons, where signing is required, as provided for under the Rules of the Federal High Court, fundamentally affects the validity of a Plaintiff’s suit, as it calls into question the competence of the suit and the jurisdiction of the Court.
This is because an unsigned originating process such as the Writ of Summons in the instant case renders the process invalid and ousts the jurisdiction of the Court to entertain the same. The Writ of Summons initiating this case on appeal, prepared and issued by Mr. Osayaba Giwa-Osagie of Messrs Giwa Osagie & Co, filed on 08/10/2012, which occupies pages 1 -3 of the Record of Appeal, was not signed by the Respondent or the counsel who prepared and filed the same, in total disregard of the mandatory requirement of the rules. The non-signing of the Writ has rendered it invalid and incompetent. This means that the suit was not commenced in accordance with due process of law – Madukolu vs. Nkemdilim (supra). The result of the invalid and incompetent writ is that the case it has acted as an originating process remains incompetent and this deprives the Court of the jurisdiction to entertain the same.
See Mainasara vs. First Bank of Nigeria Plc (2021) LPELR-56612 (SC), Ojikutu & Ors vs Kuti & Ors (2021) LPELR-56231 (SC), FX Mercantile Ventures Ltd vs. Jethrow Nig. Ltd & Anor (2021) LPELR-56741 (CA), Braithwaite vs. Skye Bank Plc (2012) LPELR-15532 (SC).
Let me reiterate that issues touching on the jurisdiction of the Court are of such fundamental nature that they cannot be waived by any of the parties as such issues go to the root of the matter. In other words, parties cannot connive to confer jurisdiction on a Court where non-existent. Parties are only allowed to waive procedural irregularities, not issues affecting jurisdiction.
See Zakirai vs. Muhammad & Ors (2017) LPELR-42349 (SC), Nigercare Development Co. Ltd vs. Adamawa State Water Board (2008) LPELR-1997 (SC). The lower Court was therefore in error when it held that the non-signing of the Writ of Summons was a procedural irregularity which has been waived by the Appellants through the steps taken by them in the suit.-Per M. I. Sirajo, JCA”
“I wish to point out that the Apex Court has defined what and how a signature should be in relation to Court processes, and it is that definition and/or description that should guide the Courts in determining whether or not any process is signed.
In the case of SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (Pt.1252) 317 @ 337, per Rhodes-Vivour, JSC, painted a graphic picture of how a Court process shall be signed by a Legal Practitioner, in the following words:
“All processes file in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of the counsel clearly written. Thirdly, who the counsel represents. Fourthly, name and address of Legal firm.”
In the above description, the signature and name of counsel must appear differently and distinctly. The signature cannot be substituted for the name, neither can the name be substituted for the signature. The two are independent of each other.
If the name Osayawa Giwa-Osagie is taken as the signature of the Legal Practitioner who issued the Writ, as submitted by counsel, the question will then be: What is the name of the person who issued the Writ? There must be an issuer before the signature, and one name cannot suffice for both the issuer and the signature. Osayawa Giwa-Osagie, on the face of the Writ of Summons is the issuer. Other than the name, no other mark was made to represent the signature of the owner of that name.-Per M. I. Sirajo, JCA”
“Having held under issue 1 that the said application was in order and that the lower Court was not functus officio with respect to it, coupled with my finding that the Writ of Summons initiating the Respondent’s action at the lower Court is invalid and incompetent and for that reason the lower Court lacks the jurisdiction to entertain the suit, which rendered its proceeding and judgment a nullity, going ahead to consider the merit of issue 2 will amount to an exercise in futility, an academic voyage lacking in utilitarian value and unworthy of the precious judicial time and energy that would be dissipated thereon.
See Odom & Ors vs. PDP & Ors (2015) LPELR24351 (SC), Mohammed vs. Bormu & Anor (2022) LPELR-58065 (SC), Odey vs. APC & Ors (2023) LPELR-60044 (SC), Timinimi & Ors vs. INEC (2022) LPELR-59474 (SC), Moses & Anor vs. Giadom & Ors (2021) LPELR-55887 (SC), Sulaiman & Ors vs. APC & Ors (2022) LPELR-58846 (SC).-Per M. I. Sirajo, JCA”
“The order sought by the Appellants for the dismissal of the Respondent’s suit at the lower Court cannot be granted as it is un-grantable in view of the incompetence and invalidity of the originating process. There can be no determination on the merits on an incompetent Writ of Summons. Therefore, the appropriate order to make in the circumstance is to strike out the incompetent process.-Per M. I. Sirajo, JCA”
“By the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation, 2004, a legal practitioner who can, within the meaning of the relevant Rules of Court, validate a Court process, whether writ of summons, notice of appeal, statement of claim or statement of defence, must be a named legal practitioner whose name is on the Roll of Legal Practitioners in the Supreme Court of Nigeria, registered to practice as a Barrister and Solicitor in this Country. These provisions have received frequent and consistent judicial interpretation such that it is now well settled that a process prepared and filed in a Court of law by a legal practitioner, which has not been signed by the legal practitioner, is incompetent. A foremost authority was the case of Okafor v. Nweke (2007) LPELR-2412(SC).”
About five years later, this position of the law was affirmed by the Apex Court sitting as a full Court in First Bank of Nigeria Plc v. Maiwada (2012) LPELR-9213(SC); (2012) 5 SC (Pt. 111) 1 on whether the decision in Okafor v Nweke (supra) was mere technical justice which ought to be revisited, the Supreme Court held, pages 15 – 16 of the E-Report:
“There is also the view of some counsel that the decision in Okafor v. Nweke had to do with technical justice. I agree that the age of technical justice is gone. The current vogue is substantial justice. See Dada v. Dosunmu (2006) 12 PNJSC 115. 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. The law should not be bent to suit the whims and caprices of the parties/counsel. One should not talk of technicality when a substantive provision of the law is rightly invoked.”
The Supreme Court then declined the invitation to revisit the decision in Okafor v. Nweke as it was not considered to be, in any respect, wrong in law.
The decision in Okafor v Nweke (supra) and the subsequent decision of FBN v Maiwada (supra), have both been followed in a number of decisions of the Apex Court and of this Court to mention but a few. See SLB Consortium Ltd v. N.N.P.C (2011) 9 NWLR (Pt. 1252) 317; (2011) LPELR-3074(SC), Okarika v. Samuel (2013) LPELR-19935(SC), Oketade v Adewunmi (2010) 8 NWLR (Pt. 1195) 63, SPDC v Sam Royal (Nig) Ltd (2016) LPELR-40062(SC), Okpe v. Fan Milk Plc & Anor (2016) LPELR-42562(SC), Williams & Anor v. Adold/Stamm International Nigeria Limited & Anor (2017) LPELR-41559 (SC), GTB v. Innoson Nigeria Ltd (2017) LPELR-42368 (SC), Arueze & Ors v. Nwaukoni (2018) LPELR-46352 (SC), Akinsanya & Anor v. Federal Mortgage Finance Ltd (2010) LPELR-3687(CA), Igiriga v. Bassey (2013) LPELR-20346(CA), N.N.P.C. v. Roven Shipping Ltd (2014) LPELR-22140(CA), Kpezanyashi & Ors v Jezhi & Ors (2018) LPELR-44402(CA), Ewukoya & Anor v. Buari & Ors (2016) LPELR-40492(CA).
Without going into much detail, it is important to note that the decisions in Heritage Bank Ltd v Bentworth Finance (Nig.) Ltd (2018) 3 NWLR (PT 1625) 420, per Eko, JSC, and in Bakari v. Ogundipe & Ors (2020) LPELR-49571(SC), per Rhodes-Vivour, JSC, which espoused the contrary position of waiver of the right to object to a defective process that has not been appropriately signed by a legal practitioner. where the party objecting had participated in the proceedings, were not decisions of the Supreme Court sitting as a full Court. In First Bank of Nigeria Plc v. Maiwada (supra), the reason for which the full Court was empaneled was stated, per Fabiyi, JSC thus, page 3 of the E-Report:
”The core issue in my considered opinion is – whether a Court process not personally signed by a legal practitioner duly registered in the roll of this Court as dictated by the applicable provisions of the Legal practitioners Act is valid or competent. Among legal practitioners, we have two schools of thought in respect of the above salient issue. The division is very grave indeed. To put the dispute at rest, the Hon. Chief Justice of Nigeria has empanelled a full Court. A host of amicus curiae got invitation to address the Court on the issue.”
In other words, it was to avoid confusion and discordant judicial pronouncements on the competence or validity of a Court process not personally signed by a legal practitioner duly registered in the roll of the Supreme Court as provided in the Legal Practitioners Act that the Supreme Court sitting as a full Court was empaneled. As earlier stated, that full panel validated the position of the law in Okafor v Nweke (supra).
In this regard therefore, and with utmost respect, it is my humble opinion that the decisions in Heritage Bank Ltd v Bentworth Finance (Nig.) Ltd (supra) in 2018, and in Bakari v. Ogundipe & Ors (supra) in 2020, which were not decisions of the Supreme Court sitting as a full Court, cannot be said to represent the extant position of the law on this issue, having regard to the decision in Okafor v Nweke (supra), which was duly affirmed in FBN v Maiwada (supra). These decisions still represent the law. See also recent affirmations by the apex Court in Ajibode & Ors v Gbadamosi & Ors (2021) LPELR-53089(SC), per Ngwuta, JSC (of blessed memory), Ojikutu & Ors v. Kuti & Ors (2021) LPELR-56231(SC), Skypower Express Airways Ltd v. UBA Plc & Anor (2022) LPELR-56590(SC), Yongo & Ors v. Hanongon & Ors (2022) LPELR-57282(SC).-Per O. A. Otisi, JCA”
“The failure of the Respondent’s Counsel to sign the Writ of Summons, which initiated the suit before the lower Court, was not a mere irregularity, as opined by the lower Court, but a defect that impacted on the jurisdiction of the lower Court to entertain the matter. Jurisdiction is always a threshold issue, for when the Court has no jurisdiction to entertain a matter, the proceedings are a nullity, no matter how well conducted and brilliantly decided they may have been. Lakanmi v Adene (2003) LPELR-1750(SC), Ekulo Farms Ltd v UBN Plc (2006) LPELR-1101(SC), Obaba v Military Governor of Kwara State (1994) LPELR-2147(SC).
It is also trite that a jurisdictional issue can be raised at any time, even at the Apex Court. Adegoke v Adibi (1992) LPELR-95(SC), Adesola v Abidoye (1999) LPELR-153(SC), Odutola v University of Ilorin (2004) LPELR-2632(SC).-Per O. A. Otisi, JCA”
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