Legalpedia Citation: (2009) Legalpedia 67184 (CA)
In the Court of Appeal
Abuja
Mon Mar 9, 2009
Suit Number: CA/L/141/2009
CORAM
PARTIES
APPELLANTS
RESPONDENTS
AREA(S) OF LAW
ACTION, APPEAL, COURT, JUDGMENT AND ORDER, JURISDICTION, LEGAL PRACTITIONER, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
SUMMARY OF FACTS
The Appellant and the Respondent were the Defendant/Respondent and Claimant/Applicant respectively before the High Court of Lagos State, Lagos Division.
There was a construction contract between the Respondent and Suffolk Engineering and Construction Limited (SECL). The Appellant issued an Advanced Payment Guarantee (APG) policy bond, No. HQ0180009678, in favour of the Respondent as security for the advance payment of certain sum of money made by the Respondent to SECL pursuant to the construction contract. The Appellant in favour of the Respondent later renewed the APG. The Respondent alleged that the SECL defaulted in the performance of the construction contract. As a result, the Respondent made formal written demands from the Appellant for the payment of the full value of the APG policy bond in the sum of $21 Million. The Appellant, despite repeated demands, failed to pay the full value of the APG policy bond to the Respondent. Sequel to that, the Respondent beseeched the lower court, via a writ of summons filed on 14th July, 2005, wherein it claimed against the Appellant the payment of the sum of $21 Million, interest thereon and cost of the action. The Respondent filed an application wherein it prayed the lower court for an order entering summary judgment against the 1st Defendant for the sum of US$21 million (Twenty-one million United States Dollars) only, plus interest thereon at the rate prevalent on the date of payment) from the 29th day of November until the date of judgment and thereafter at the same rate until total liquidation of the debt and an order granting the Claimant N7,500,000.00 being the cost of prosecuting this application.
The Appellant denied liability by filing a statement of defence and a counter claim in opposition to the application. The lower court heard the application for summary judgment and granted the first prayer in the application.
The Appellant being dissatisfied with the decision filed a notice of appeal which was amended with the leave of this court, wherein it prayed for the setting aside of the judgment of the lower court and to strike out the Respondent suit for being incompetent.
HELD
Appeal Allowed
ISSUES
Whether the Respondent’s Suit No. LD/1141/05 commenced by the Respondent vide Writ of Summons and Statement of Claim filed on 17/06/2005 as constituted and the Respondent’s Motion of Notice for Summary Judgment filed on same date were incompetent thereby robbing the lower court of jurisdiction.
RATIONES DECIDENDI
APPEAL, PRACTICE AND PROCEDURE
AMENDMENT OF PROCESS –WHETHER AN APPELLANT REQUIRES AN EXTENSION OF TIME TO AMEND HIS NOTICE OF APPEAL
“Generally, the position of law is that a party is bestowed with the right to amend his processes at any stage of the proceedings with the leave of the court, see Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 374. In other words, a party’s, appellant’s, right to amend his notice of appeal has no time frame within the firmament of the Court of Appeal Rules, 2016 or 2021. It follows, therefore, that an appellant does not require an extension of time to amend his notice of appeal by raising fresh issues. Leave of court is the sine qua non for such an amendment, see Gazzali v. State (supra). The necessity for an extension of time arises when a statute, substantive or subsidiary, prescribes a ceiling on time for the performance of an act and a party fails to consummate it within the circumscribed period. Also, it occurs when a court extends a time for a party to do an act and he fails to accomplish it within the limited period. By the same token, filing additional grounds of appeal does not require an extension of time, but leave of court. In the face of this inelastic position of adjectival law, the appellant did not offend the law when it failed to approach this court via a trinity prayers that ought to house a prayer for an extension of time to amend the notice of appeal. In effect, all the diatribes, which the respondent rained against the procedure adopted by the appellant, pale into insignificance. PER O.F.OGBUINYA, J.C.A
COURT, APPEAL, PRACTICE AND PROCEDURE
COURT – WHETHER A COURT IS PERMITTED TO ENTERTAIN AN APPEAL OVER ITS DECISION
“The law does not grant a court the licence to constitute itself into an appellate court over its decision, see Famu v. Kassim (2013) 7 NWLR (Pt. 1352) 124; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Ngere v. Okuruket ‘xiv’ (2017) 5 NWLR (1599) 440; Eneh v. NDIC (2018) 16 NWLR (Pt. 1645) 355. This court is not prepared to arrogate to itself the underserved status of an appellate without any constitutional or statutory backing. This is because, the law will query it on the footing of quo warranto. The foregoing, which impinges on the jurisdiction of this court, constitutes another serious coup de grace to the success of the respondent’s application. It is disabled from its birth. It cannot fly! PER O.F.OGBUINYA, J.C.A
JURISDICTION, COURT
ISSUE OF JURISDICTION – DUTY OF COURT WHEN AN ISSUE OF JURISDICTION IS RAISED
“The law compels the courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt.1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Ndual (2018) 2 NWLR (Pt. 1602) 1; Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. I will obey this legal commandment so as not to insult the law”. PER O.F.OGBUINYA, J.C.A
JURISDICTION
JURISDICTION – MEANING OF JURISDICTION
“Jurisdiction, a mantra in adjudication, connotes the authority/power of a court to determine a dispute submitted to it by contending parties in any proceeding, see Ajamole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodagbe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548”. PER O.F.OGBUINYA, J.C.A
JURISDICTION, COURT
JURISDICTION – INGREDIENTS THAT INFUSES A COURT WITH JURISDICTION
“A court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. 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 3. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Modukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Daro v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworka v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to infuse jurisdiction into a court. PER O.F.OGBUINYA, J.C.A
ACTION, LEGAL PRACTITIONER
ORIGINATING PROCESS – STATUS OF AN ORIGINATING PROCESS NOT SIGNED BY A LEGAL PRACTITIONER
“It is now a settled elementary law that an originating process, like writ of summons, originating summons and notice of appeal, must be signed by a legal practitioner, who franked it, or a litigant, in order to infuse validity into it. The legal practitioner, in the mind of the law, is one entitled to practice as a barrister and solicitor and whose name is on the roll of legal practitioners as decreed by the provisions of sections 2 (1) and 24 of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004 (hereunder abridged to “the Act”). In other words, an originating process not signed by a legal practitioner, as ordained by the above provisions of the Act and the rules of court, is infested with incompetence with the attendant liability of expunction. The incompetence divests the court of the jurisdiction to adjudicate over the action, which hosts it, in deserving circumstances, see Registered Trustees, The Apostolic Church, v. Akindele (1967) NMLR (Pt. 263); Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; Const. Res. (Nig.) Ltd. v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 592; Okonkwo v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 614; Bala v. Dikko (2013) 4 NWLR (Pt. 1343) 52; Braithwaite v. Skye Bank (2013) 5 NWLR (Pt. 1346) 1; FBN Plc. v. Maiwada (supra)/(2013) 5 NWLR (Pt. 1348) 444; Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570; Min., W & T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481; Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19; Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 1375) 466; Dankwambo v. Abubakar (2016) 2 NWLR (Pt. 1495) 157; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd (2016) 8 NWLR (Pt. 1514) 318; Tanimu v. Rabiu (2018) 4 NWLR (Pt. 1610) 505; B.O.I. Ltd. v. Awojugbagbe Light Ind. Ltd. (2018) 6 NWLR (Pt. 1615) 220; Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420; B.L.L.S. Co. Ltd. v. M.V. Western Star (2019) 9 NWLR (Pt. 1678) 489; Yusuf v. Mobil Oil (Nig.) Plc. (2019) 13 NWLR (Pt. 1689) 374; Salami v. Alh. M.J.M. Wuse Family (2019) 13 NWLR (Pt. 1689) 301; Alikor v. Ogwo (2019) 15 NWLR (Pt. 1695) 331; Yusuf v. Mobil Oil (Nig.) Plc (2020) 3 NWLR (Pt. 1710) 1; JVCPP (UK) Ltd. v. Famiyide (2020) 14 NWLR (Pt. 1744) 334”. PER O.F.OGBUINYA, J.C.A
COURT
SIGNING A COURT PROCESS – METHOD OF SIGNING A COURT PROCESS
“In SLB Consortium Ltd. v. NNPC (supra), at page 337 thereof, Rhodes-Vivour, JSC, incisively, espoused the methodology for signing a court process in these illuminating words:
What then is so important about the way counsel chooses to sign processes. Once it cannot be said who signed a process it is incurably bad, and rules of court that seem to provide a remedy are of no use as a rule cannot override the Law (i.e the Legal Practitioner Act). All processes filed in court are to be signed as follows:
First, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of Legal Firm.
See, also, Adegbola v. Idowu (2020) 7 NWLR (Pt. 1722) 94. PER O.F.OGBUINYA, J.C.A
COURT, ACTION
ENDORSEMENT OF AN ORIGINATING PROCESS – EFFECT OF LACK OF ENDORSEMENT OF A WRIT OF SUMMONS BY A LEGAL PRACTITIONER
“The law insists on the presence of name and signature of a legal practitioner so as to vest validity and viability in an originating process, see SLB Consortium Ltd. v. NNPC (supra). Put simply, the writ of summons was not signed in the spirit and manner ordained by the law. Indubitably, lack of endorsement of a writ of summons by a lawyer is “a fundamental irregularity that goes to the roots”, see Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd (supra) at 434, per Eko, JSC. Nota bene, the respondent’s counsel offered no argument to demolish or neutralise the sterling argument of the appellant’s Senior Counsel on the terminal issue. In the mind of the law, that is an undiluted admission that the writ of summons was not signed in due allegiance to the injunction of the law, see Nwankwo v. Yar’adua (2010) 12 NWLR (Pt. 1209) 518; Okongwu v. NNPC (1989) 4 NWLR (Pt. 115) 296; Ugboaja v. Akintoye Sowemimo (2008) 16 NWLR (Pt. 1113) 278; Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. To this end, it will smell of judicial sacrilege to crown the writ of summons with the undeserved toga of validity. I, per contra, declare it as tainted with an indelible incompetence and invalidity. PER O.F.OGBUINYA, J.C.A
ACTION
WRIT OF SUMMONS – EFFECT OF AN INCOMPETENT WRIT OF SUMMONS
“It cannot be gainsaid that a writ of summons, an originating process, is the spinal cord of a suit. It is the foundation upon which all other processes and proceedings are anchored on in a matter. In other words, all other processes and proceedings trace their paternity and validity to an originating process. It follows that the writ of summons, which is under attack of expulsion, gave birth to all the other processes filed by the feuding parties and the proceedings in the action which transfigured into the appeal. Given this relationship, the incompetence of the writ of summons pollutes the purity of the other processes and proceedings, inclusive of the judgment, and, ipso facto, render them incompetent. The reason is obvious. They have no substratum to perch and command any validity. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513. PER O.F.OGBUINYA, J.C.A
ACTION, JURISDICTION
WRIT OF SUMMONS – LEGAL CONSEQUENCES OF AN INCOMPETENT WRIT OF SUMMONS
“The legal consequences, which follow the incompetent writ of summons, are far-reaching. The respondents’ suit was not initiated by due process of law and the condition precedent for its institution was not satisfied as required by law. In the view of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”, see Atalegbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jumbo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt.1536) 439. The result is that the lower court was drained of the requisite jurisdiction to entertain the action ab initio. It, therefore, with utmost respect, defiled the law when it heard the matter. Where a court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; Isah v. INEC (2016)18 NWLR (Pt. 1544) 175. PER O.F.OGBUINYA, J.C.A
ACTION, JUDGMENT AND ORDER, COURT, PRACTICE AND PROCEDURE
NULLITY – STATUS OF A DECISION SMEARED WITH NULLITY
“In the eyes of the law, nullity denotes: “Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect”, see Lasisi v. State (2013) 12 NWLR (Pt.1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. The dire consequence of a nullity is dismal. If a decision or proceeding is smeared with nullity, it is void and taken as if it was never given or made, see Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Furthermore, such a decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party, who possesses it, nor does it impose any obligations on its victim party, see Ajibola v. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The bounden duty of a court is to set aside a null order ex debito justitiae in that it does not exist in law, see Mamman v. Hajo (supra); N. A. C. B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364. Since the lower court’s decision is marooned in the murky ocean of nullity, it must be mowed down by the unbiased judicial sword of this court”. PER O.F.OGBUINYA, J.C.A
JURISDICTION, JUDGMENT AND ORDER, COURT, PRACTICE AND PROCEDURE
LACK OF JURISDICTION- APPROPRIATE ORDER A COURT SHOULD MAKE WHERE IT LACKS JURISDICTION
“Where the jurisdiction of a court to hear a matter is eroded, the order it makes is plain. It is one of striking it out, see Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (Pt. 927) 366; Uwazuruike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt. 1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1071) 347; Ikechukwu v. FRN (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt.1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Min., W.O.T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481”. PER O.F.OGBUINYA, J.C.A
COURT, LEGAL PRACTITIONER, PRACTICE AND PROCEDURE
COURT PROCESS – WHO CAN VALIDATE A COURT PROCESS?
“By the provisions of Section 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). PER O.A. OTISI, J.C.A
ACTION, JURISDICTION, LEGAL PRACTITIONER, PRACTICE AND PROCEDURE
SIGNING OF AN ORIGINATING PROCESS – WHETHER THE FAILURE OF A COUNSEL TO SIGN AN ORIGINATING PROCESS AFFECTS THE JURISDICTION OF THE COURT TO ENTERTAIN THE MATTER
“The failure of the Respondent’s Counsel to sign the originating process before the lower court was 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); Obada 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 Appellate 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, J.C.A
CASES CITED
NOT AVAILABLE
STATUTES REFERRED TO
Court of Appeal Rules, 2016
High Court of Lagos State (Civil Procedure) Rules, 2004
Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004