CHARLES DURU v. FEDERAL REPUBLIC OF NIGERIA
March 31, 2025ELDER HENDERSON ENYINNA SOMIARI JUMBO VS ASSET MANAGEMENT CORPORATION OF NIGERIA & 2 ORS
April 1, 2025Legalpedia Citation: (2020) Legalpedia (CA) 07131
In the Court of Appeal
HOLDEN AT CALABAR
Tue Jun 23, 2020
Suit Number: CA/C/173/2014
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HAMMA AKAWU BARKA
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HAMMA AKAWU BARKA
PARTIES
THEODORE BASSEY DANNET-OWOO
MR. FRANCIS EFFIONG
AREA(S) OF LAW
Not Avaialble
SUMMARY OF FACTS
The Plaintiffs/Respondents initiated an action via a Writ of Summons at the High Court of Cross River State, seeking for the following relief: a declaration that they are entitled to a statutory right of occupancy of a piece of land situate and lying at 94/104 Atamunu Street by Enebong Avenue, Calabar, more particularly described in plan No. TJ SE 221, being a subject of a certificate of occupancy No. CA/55577/98 OF 22ND October, 1998; N2,000,000.00 (Two Million Naira) general/special damages for trespass and destruction of economic trees; Perpetual injunction restraining the Defendants themselves or their agents and servants from further trespass on the land, by the way of building or howsoever dealing with the said piece of land. Issues having been joined, and at the close of pre-trial conferencing, parties engaged in a full-blown trial. At the close of trial, the Court ordered for written addresses, which were filed and adopted, setting the stage for the Court’s judgement, which was eventually delivered in favour of the Respondents. Dissatisfied with the judgement of the lower Court, the Defendants/Appellants filed an appeal before this court.
HELD
Appeal Allowed
ISSUES
Whether the Learned trial Judge was right when he assumed jurisdiction to entertain an incompetent suit that was not initiated by due process of Law.
RATIONES DECIDENDI
ORIGINATING PROCESS- PRINCIPLES GUIDING THE SIGNING AND SEALING OF ORIGINATING PROCESSES
“The starting point in the resolution of this appeal is the provision of Order eight (8) Rule two (2) sub-rule one (1) two (2) and three (3) of the Cross River State High Court (Civil Procedure) Rules 2008 which provides: –
2(1) the registrar shall seal every originating process whereupon it shall be deemed to be issued.
(2) A claimant or his legal practitioner shall on presenting any originating process for sealing leave with the registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.
(3) Each copy shall be signed by the legal practitioner or by a claimant where he sues in person and shall be certified after verification by the registrar as having a true copy of the original process filed.
The writ of summons originating the instant case is located at page 10 of the record. Thereat, it is obvious that the writ was neither signed by the claimant nor his legal representative on his behalf. Indeed, at nowhere can it be seen that the registrar of the lower Court sealed the writ in conformity with the rules of Court. In fact the writ of summons was not signed. I have earlier on reproduced the provisions of Order 8 Rule 2 of the rules governing the lower Court dealing with the signing and sealing of a writ of summons. The question to be asked is, what is the consequence of an unsigned writ of summons and a writ that is not sealed by the registry? The generally accepted state of the law with regards to unsigned documents is that an unsigned document is worthless and of no use at all. This was the view held by this Court in the case of Mbang vs. Guardian Newspapers Ltd (2010) LPELR – 4470 (CA), that an unsigned document cannot generate or initiate an action, and in law an unsigned document is entitled to no weight. It is incapable of being used by a Court to resolve facts that are disputed in an action between the parties. Similarly in Dantiye and Anor vs. Kanya & Ors. (2008) LPELR 4021 (CA), this Court opined that failure to sign a document will not only render it worthless, but will also render it inadmissible in evidence; and further in Sarai & Anor vs. Haruna and Ors. (2008) LPELR-4933 (CA), the Court held that an election petition which is either not signed at all or is improperly signed to say the least is invalid and should be struck out. See also Gbadamosi & Anor vs. Biala & Ors (2014) LPELR-24389 (CA), Brewtech Nig. Ltd vs. Akinnawo & Anor (2016) LPELR-40094 (CA), Garuba vs. Kwara Investment Co. Ltd & 2 Ors. (2005) 5 NWLR (pt. 917) 160. Flowing from this state of the law, we must next explore the consequence of a writ not signed as demanded by the rules governing the Court of trial. Nnamani JSC in Skenconsult NIG. Ltd. & Anor vs. Godwin Sekondy Ukey (1981) LPELR 3072 (SC), speaking in tune with the provisions of Section 95 of the Sheriff and Civil Process Act , defined a writ of summons to mean: –
A writ of summons includes any writ or process by which a suit is commenced or of which the object is to require the appearance of any person against whom relief is sought in a suit or who is interested in maintaining such a relief.
The questions evolving in the instant appeal are not altogether dissimilar with what this Court recently entertained in the unreported case of Chief Emmanuel Ito Nyong Orok vs. Esinjo (Chief) Ekpo Omin Ekpo Eta and Ors. , in appeal with No. CA/C/143/2017, delivered on the 22nd of May, 2020. In the case just cited, this Court reasoned that:
The appellant by this issue, no doubt seeks to and does contend that the lower Court was robbed of jurisdiction entertaining the suit leading to the instant appeal, on the premise that the writ which initiated the suit before the lower Court was incompetent, and thereby denied the lower Court the competence and jurisdiction to have entertained the suit in the first place. The incompetency that affected the jurisdiction of the lower Court, counsel argued is premised on the fact that the writ of summons by which the action was commenced was not signed. As a starting point, jurisdiction has been held by this Court and the Apex Court in numerous cases, so numerous to count, as being fundamental, likened to the blood that gives life to an action. And where a Court is devoid of or is lacking in jurisdiction to try a matter before it and proceeds to do so, whatever decision arrived at amounts to a nullity, and the fact that it was well conducted and the result brilliantly arrived at nonetheless. See Oloba vs. Akereja (1988) 3 NWLR (pt. 84) 508, Utih vs. Onoyivwe (1991) 1 NWLR (pt. 166) 166, NURTW vs. RTEAN (2012) 10 NWLR (pt. 170).”
COMPETENCE OF COURT- FACTORS THAT DETERMINES THE COMPETENCE OF COURT
“The template in the determination of the competence of an action is a by product of a host of cases notably the age old case of Madukolu vs. Nkemdilim (1962) 1ALL NLR (pt. 4) 587; which held that:
A Court is competent when:
(i) It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another, or,
(ii) 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
(iii) Any defect in competence is fatal for the proceedings are a nullity however well decided, the defect being extrinsic to the adjudication.”
UNSIGNED WRIT OF SUMMONS- IMPLICATION OF AN UNSIGNED WRIT OF SUMMONS
“The nagging question would be, what then is the consequence for the plaintiff or his legal practitioners failure to sign the said writ of summons, with respect to the competence of the originating process? I have been referred to the decision of my learned brother Oyewale JCA, in the case of Bassey & Ors vs. Edem & Ors (2016) LPELR 42054 (CA), where this Court had this to say:
Generally, where the words of a statute are clear and unambiguous, the Court should give same its ordinary literal interpretation. This is often referred to as the literal rule. It is the most elementary rule of construction. See First Bank v. Maiwada (2012) 51 NSCQR 155 @ 172. The words used in the above quoted rules of the High Court of Cross River State are totally clear and unambiguous. They expect a writ to be commenced in by the litigant or by his legal practitioner and to be signed by whoever prepared it. The amended writ here which formed the basis of the exercise of judicial power in this case was not signed by anyone. The position of the law in this regard is clear and totally unambiguous. As unsigned document is totally worthless and incapable of conferring legal benefits. See Garuba v. K.I.C Ltd (2005) 5 NWLR (PT. 917) 160 and Rabiu Alfa V. Zakari 6 EPR 773 AT 778-779. It was contended by Mr. Anana that the issue was a mere irregularity waived by the conduct of the 1st Appellant. As inviting as the argument sounded, it is no sequitur in the face of the state of the law and I am therefore not persuaded. The defect here goes to the jurisdiction and totally affect the competence of the exercise of judicial powers by the learned trial judge. The writ of summons in this case is on pages 1 and 2 of the Record of Appeal. There is a type-written endorsement on page 2 of the record as follows: This writ was issued by E.N Kanu, Esq, whose address for service is at No. 21 Dennis Osadebay Way Asaba.
Save for the barren type-written statement reproduced above, E. N. Kanu, Esq, who allegedly issued the writ did not sign it. The law is now settled that an originating process, such as a writ of summons and a notice of appeal, must be signed by the litigating party or legal practitioner on his behalf. See Emmanuel Okafor & 2 Ors V. Augustine Nweke & 4 Ors (2007) 3 SCNJ 185 (2007) 10 NWLR (PT. 1043) 521; First Bank Of Nigeria Plc. v. Alhaji Salmonu Maiwada (2013) 5 NWLR (PT. 1248) 448 and Aaron Okarika & 4 Ors V. Isaiah Samuel & Anor (2013) 17 NWLR (PT. 1352) 19 AT 43 Per Peter-Odili, JSC. The above represent the law as it is today. The Supreme Court further reiterated the position in the recent case of GTB Plc v. Innoson (Nig) Ltd(2017) 16 NWLR PT. 1591 Pg. 181 Pg. 196-197. We therefore submit that all the legal authorities cited and relied upon by the Respondent are inapplicable in the instant appeal. We urge the Court to uphold the entire Appellant’s argument on this point, that the Respondents having not signed the writ of summons in this matter, the said writ is incompetent and defective and accordingly, the lower Court lacked jurisdiction to have entertained and determined the matter. In the case of Keystone Bank Ltd V. J.O Adebiyi & Sons (Nig) Ltd (2015) 1 NWLR (PT. 1439) 98 AT 11, this Court clearly stated that, a signature is meant to authenticate a document, thus an unsigned writ of summons has no efficacy or value in law, as nobody assumes responsibility for it. In the instant appeal, the unsigned writ is not a mere irregularity but a fundamental defect that makes the whole process fundamentally defective.
Furthermore, in the recent decision of this Court, which raised similar questions, akin to the case before the Court; Mr. Oscar vs. Lazarus-Undie , (unreported) in appeal with NO. CA/C/165/2014, delivered on the 15th of May, 2020 anchored by self, held that:
Two facts stand out upon a critical examination of the writ of summons filed before the lower Court. It is plain from the record, specifically at pages 1-2 thereof, that the writ was neither signed by the claimant nor any legal practitioner on his behalf, nor was the writ sealed by the registrar of the Court, as demanded by the rules of Court, thereby in total breach of the stipulations of Order 8 Rules1 3 of the Rules of Court applicable to the lower Court. Both parties do not dispute the fact that on the face of the writ of summons, there is no evidence that it was not signed by the claimant or his legal representative. Nnamani JSC defined a writ of summons as being and includes any writ or process by which a suit is commenced or of which the object is to require the appearance of any person against whom relief is sought in a suit or who is interested in resisting such relief. See Skenconsult Nigeria Ltd & Anor vs. Godwin Sekondy Ukey (1981) LPELR-3072 (SC). The law is equally positioned to the effect that:
Initiating a process in Court of first instance or an appeal which lies to an appeal Court has to be sponsored by a person natural or artificial. In case the appeal proceeds from a natural person, it has to be filed and prosecuted by that natural person who has the capacity to see, hear, talk feel or perceive or where circumstances demand by his counsel who has the same qualities/capacity. See Aaron Okarika & Ors vs. Isaiah Samuel & Anor (2013) LPELR-19935 (SC) per Muhammad JSC.
Also in the recent case of Febson Fitness Centre vs. Coppa H. Ltd (2015) 6NWLR (pt. 1455) 263 @ 278, where the Court held that:
The principle of law is that an originating process whether writ of summons, originating summons or Notice of Appeal must be valid in order to confer jurisdiction on a Court to adjudicate between the parties on the subject matter in dispute. But where the process is not signed by a litigant or his counsel, the process is invalid and the jurisdiction of the Court is ousted.
Mr. Nachamanda of learned counsel for the appellant cannot be wrong in asserting that the writ of summons which was not signed by the respondent and or his counsel acting on his behalf rendered the writ incompetent and robbed the lower Court of the necessary jurisdiction to entertain it. The case of Keystone Bank Ltd vs. J.O.A & S (Nig) Ltd (supra), which held that:
The originating process, that is the writ of summons in suit No, NSHC/SD/1/09 ought to have been signed by the plaintiffs in that suit (now respondent) or a legal practitioner on their behalf. Having been not so signed, the writ of summons was incompetent and by extension it was not properly issued by the registrar of the Court below. This defect affected adversely the jurisdictional competence of the lower Court to entertain the respondents suit.
The respondent on the issue seems to hang his argument on the issue pointing out that failure to adhere strictly with the rules of Court is not enough to vitiate or to deny a party the right to ventilate his grievance. I agree with him. I said so in the case of Colito Nigeria Ltd & Anor vs. Honourable Justice Titi Daibu (2018) LPELR 44300 (CA). my reason for agreeing with the principle is that rules of Court are in place to regulate practice in Court and do not by itself confer jurisdiction. See Odom vs. PDP per Dattijo JSC, Idegwu vs. The State (2015) 6 NWLR (pt. 1455) 236, Uwazurike vs. AG Federation (2007) 8 NWLR (pt. 1035) 1. In other words, were the facts of the instant case, to be on all fours with the cases just cited, I would have with humility departed from the decision of my learned brothers in the case of Igiriga vs. Bassey (supra). In other words, irregularities cannot defeat the course of justice as argued. This however is not the case in the matter before the Court. The departing point is that the writ was not signed at all, and in matters of signature in an originating process, there cannot be compromise or departure thereto. See Idegwu vs. The State (supra) @ page 286.
The appellant is therefore on a strong wicket urging this Court to hold that the writ of summons, not having been signed by the claimant (respondent) rendered the same incompetent, and thereby robbed the lower Court and by extension this Court the jurisdiction to entertain the case: Multichoice Nigeria Ltd vs. Hon. Jerry Akpan (2014) LPELR 22681 (CA), PDP vs. Ekeagbara & Ors (2016) LPELR 40849 (CA), where an originating process initiating a suit is found to be incompetent, a Court of law would not have the jurisdiction to adjudicate on it, for an invalid process cannot initiate a suit in a Court of law. See also Ogunmola vs. Kida (2006) ALL FWLR (pt. 327) 402 @ 412. The failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. The consequence is that this Court can rightly invoke the provisions of Section 15 of the Court of Appeal Act 2004 , and thereby strike out the suit filed below for being incompetent.
The import of the two decisions of this Court cited above crystallized to the fact that an unsigned writ of summons is not an irregularity as contended, but goes to the root of the process that seeks to originate the action.”
NON-SEALING OF ORIGINATING PROCESS- EFFECT OF THE NON-SEALING OF AN ORIGINATING PROCESS
“With respect to the second leg of the learned senior counsels submission which turned on the interpretation of Order 8 Rule 2 , and the question whether the failure of the registrar to seal the writ ousted the jurisdiction of the Court to entertain the suit filed. This Court fortunately interpreted that same provision in the recent decision of this Court, in the unreported case of Mr. Oscar Ofuka vs. Lazarus Izabi-Undie Esq , in appeal with No. CA/C/165/2014, delivered by this Court on the 15/5/2020. Therein, this Court held that:
Let me by way of passing briefly comment on the requirement by the Court registrar sealing a writ of summons as demanded by Order 8 Rules 1 , 2(1) and (3) of the High Court of Cross River State (Civil Procedure) Rules 2008 , which I had earlier reproduced before now. Learned counsel for the appellant heavily leaned on the authority of Igiriga vs. Bassey (supra) to argue that the non- sealing by the registrar of Court robbed the Court of jurisdiction to entertain the action. I had occasion to study the case under reference, and the opinion of my learned brothers on the issue. The case of State Independent Electoral Commission Ekiti State vs. National Conscience Party (2008) LPELR 4980 (CA) per Sankey JCA was drawn to my attention. I also considered the decision of Tsammani JCA in Ajayi vs. Oguntowo (2018) ALL FWLR (pt. 953) 197 @ 218, and relied on the authority of the Apex Court in the case of Saleh vs. Monguno (2006) 7SCNJ 236, thereby agreeing with the statement of the law, that rules of Court and all its technical rules ought to be but a handmaid of justice and legal inflexibility may if strictly followed only serve to render justice grotesque or even lead to outright injustice, which the Courts would not endure. In other words, rules of Court are made to aid the course of justice, and therefore the interest of justice must be given paramountcy over and above rules of Court when undue compliance with the rules would lead to outright injustice. Thus the decision of SIEC Ekiti State vs. The National Conscience Party (supra) in my humble view is more in tune with the extant position of the law. See Oyekunle Power Stephen Gbenga vs. APC & Ors (unreported) Appeal No. CA/IL/78/19, delivered on the 2nd July, 2019, per Barka JCA. I have however tried to distinguish the present position and made it clear that the writ of summons, which the respondent failed to sign, is fundamental, and rendered the writ incompetent. This is different from the act of sealing the same writ where signed by a known person or his counsel.
I also adopt my reasoning in the case under reference, and hold that the non sealing of an originating process is an irregularity which does not oust the jurisdiction of the Court to entertain the action.”
ORIGINATING PROCESS – REQIUREMENT FOR THE VALIDITY OF AN ORIGINATING PROCESS
The validity of any originating process known to law must comply with the law. Its validity in any proceeding must be settled as it is a fundamental issue and requirement, to make the process alive or indeed make it a life issue. It is a sine qua non. Thus, failure to properly sign an originating process or any process of Court for that matter in the proper way makes the suit liable to be set aside as being incompetent thereby rendering the proceedings predicated on it null and void. See Kida V. Ogunmola (2006) ALL FWLR (prt 327) 402.
WRIT OF SUMMONS – EFFECT OF FAILURE TO SIGN A WRIT OF SUMMONS
“That failure to sign a writ of summons as required by law fundamentally affects the validity of a claimants suit, as it calls the competence of the suit and the jurisdiction of the Court in question. The law is well settled that an originating process, such as a writ of summons, must be signed by the litigating party or legal practitioner on his behalf.
CASES CITED
Not Available
STATUTES REFERRED TO
Court of Appeal Act, 2004|Cross River State High Court (Civil Procedure) Rules 2008|Supreme Court, 2008|
