Court Of Appeal, Lagos Division – November, 2015
Legalpedia Electronic Citation LERCA/L/709/2012
Areas of Law:
ACTION, APPEAL, COURT, JURISDICTION, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES
Summary of Facts
The Appellants instituted a suit against the Respondent in the High Court claiming damages for losses suffered by them due to the collapse of the Respondent’s building on their property. The Respondent filed a preliminary objection to the suit on the grounds that the Appellants are members of the family of Layeni descendants and that the family through its trustees had taken out another writ against the Respondent claiming damages for losses suffered as a result of the collapse of the same building on their property. The trial court upheld the preliminary objection hence an appeal to this court at the instance of the Appellant.
Issues for Determination
- Whether the lower court had jurisdiction to entertain the Notice of Preliminary Objection and the written addresses filed by the Respondent upon which it dismissed the appellants’ case?
- Whether the lower court did not act in excess of its jurisdiction in relying on processes in Suit No. LD/1290/2007 Jide Layeni & ors v Bank of Industry to rule that this suit constitutes an abuse of court process?
- Whether having regard to the circumstances and the pre – conditions for establishing abuse of Court process, the lower court did not wrongly hold that this suit constitutes an abuse of court process?
LEGAL PROCESSES – IMPORTANCE IN SIGNING LEGAL PROCESSES
“Indeed the name of a signatory is important to make complete and valid the identity of a signature. Furthermore, the requirement of the Legal Practitioners Act is that the name of any person signing processes be on the roll of those qualified to practice in Nigeria. This point was succinctly made by HON. JUSTICE MSHELIA, JCA in the case of Dr. Bolaji Akinsanya &Anor V Federal Mortgage Finance Limited (2010) LPELR-3687 (CA) as follows:
“The importance of stating the name of the signatory cannot be over- emphasized. Signature is only identifiable by the name of the signatory. Court processes must therefore be signed by a named legal practitioner.”
Therefore, an identifiable name and signature of a legal practitioner signing a process is important because that is what invokes jurisdiction of the court. PER Y. B. NIMPAR, J.C.A
JURISDICTION – IMPORTANCE OF JURISDICTION
“Jurisdiction is fundamental and must at all times be present for a valid determination of any matter. See the case of Dapialong V Dariye (2007)
LPELR – 928 (SC) wherein the Supreme Court emphasized on the importance of jurisdiction in the following words:
“It is settled that jurisdiction is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio, however well conducted and brilliantly decided that might be since a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Jurisdiction is therefore considered as nerve centre of adjudication; the blood that give life to the survival of an action in a court of law in the very same way that blood gives life to the human being in particular and the animal race in general.” PER Y. B. NIMPAR, J.C.A
REPRESENTATIVE ACTION – WHETHER ALL MEMBERS CONSTITUTING A REPRESENTATIVE ACTION IS REQUIRED TO BE NAMED
“When suits are instituted for and on behalf of a family or in a representative action, not all the names of those who constitute that family are usually named. See Mozie V Mbamalu (2006) 15 NWLR (Pt. 1003) 466
where the court held as follows:
“It is not my understanding of the law that all the members of the Omerone family must be specifically named as parties. That will be enumerating or parading a village or community of names, which is most unnecessary. That type of enumeration can only be useful in a census exercise, not in a court of law. So much stationary and time will be wasted and for no good reason.” PER Y. B. NIMPAR, J.C.A
ABUSE OF COURT PROCESS – PRECONDITIONS FOR THE EXISTENCE OF AN ABUSE OF COURT PROCESS
“Preconditions that must exist before an abuse of court process can be said to have occurred were settled by the Supreme Court in the case of Umeh V Iwu (2008) 8 NWLR (Pt. 1089)
“It is settled that for there to be an abuse of court process, there must exist a multiplicity of suits between the same parties on the same subject matter and on the same issues which preconditions are mutually inclusive as they are conjunctive.”
It is clear from above therefore that 3 conditions must exist namely:
(i) Same parties
(ii) Same subject matter
(iii) Same issues”. PER Y. B. NIMPAR, J.C.A