THE MIRAGE INVESTMENT LIMITED & ANOR v. CLEMENT OFFIONG & ANOR

CORAM

Uchechukwu Onyemenam Justice Court of Appeal

Nnamdi Okwy Dimgba Justice Court of Appeal

Asmau Ojuolape Akanbi Justice Court of Appeal

PARTIES

1. THE MIRAGE INVESTMENT LIMITED

2. HIGH CHIEF EDEM DUKE

APPELLANTS 

1. CLEMENT OFFIONG

2. ALBERT KUSU

RESPONDENTS 

AREA(S) OF LAW

APPEAL, CIVIL PROCEDURE, CONSTITUTIONAL LAW, JURISDICTION, PRACTICE AND PROCEDURE, COURT PROCEEDINGS, ORIGINATING PROCESS, LEGAL PRACTITIONER, WRIT OF SUMMONS, COSTS

SUMMARY OF FACTS

This case involves an appeal against the ruling of the High Court of Cross River State sitting in Calabar in Suit No. HC/201/2016 delivered on 16/10/18 by Ayare E. Ayade, J. The lower Court had dismissed a Notice of Preliminary Objection (NPO) filed by the Appellants challenging the competence of the suit based on an alleged unsigned writ of summons. The Appellants contended that the writ of summons was neither signed by the Claimant nor by the Claimant’s Counsel as required by Order 8 Rule 2(3) of the High Court Civil Procedure Rule Cross River State, 2008, thereby rendering the suit incompetent and depriving the Court of jurisdiction.

The facts leading to this appeal stem from a lease agreement between the Respondents and the Appellants over a property known as Mirage Parkway Hotel in Calabar, owned by the Appellants. Following disagreements related to rent, which the Appellants sought to enforce in a manner considered inappropriate by the Respondents, the Respondents initiated legal action on 26/04/16 seeking various declarations and damages of N500,000,000.00 for resorting to self-help.

After several adjournments, trial commenced on 13/10/17 when the Respondents opened their case. The matter suffered multiple additional adjournments at the instance of the Appellants. The Respondents eventually closed their case on 26/06/18, with the matter adjourned to 13/07/18 for defense. Rather than opening their defense, the Appellants, through newly engaged counsel Chief Cletus Okoi, filed a motion on 23/07/18 asking that the suit be dismissed on grounds that the writ of summons was not signed in compliance with the Rules of Court.

In a ruling delivered on 16/10/18, the lower Court dismissed the application and imposed a cost of N50,000.00 against the Appellants, to be paid personally by their counsel, Chief Cletus Okoi, for what the Court termed “wanton mischief and delay” of the proceedings. Dissatisfied, the Appellants appealed.

HELD

1. The appeal was dismissed for being grossly unmeritorious.

2. The Court of Appeal held that the writ of summons was properly signed by the Respondents’ counsel, Patrick Ekuri Esq., as required by Order 8 Rule 2(3) of the High Court Civil Procedure Rules of Cross River State, 2008.

3. The Court of Appeal affirmed the lower Court’s ruling that the Appellants’ preliminary objection was frivolous and constituted a delay tactic.

4. The Court held that the cost of N50,000.00 imposed by the lower Court against the Appellants, to be paid personally by their counsel Chief Cletus Okoi, was justified.

5. The Court imposed an additional cost of N500,000.00 against the Appellants in favor of the Respondents, to be personally paid by Chief Cletus Okoi for orchestrating the frivolous appeal.

6. The Ruling of the lower Court in Suit No: HC/201/2016 delivered on 16/10/18 was affirmed.

ISSUES

1. Whether the writ of summons filed by the Respondents in the lower Court was competent?

2. Whether the learned trial Judge was not in order when he held that the application of the Appellant was mischievous and a delay of proceedings, whether it thereby constituted bias against the Appellant?

RATIONES DECIDENDI

ORIGINATING PROCESS – IMPORTANCE OF A PROPERLY SIGNED WRIT OF SUMMONS TO COURT’S JURISDICTION

“Failure to sign a writ in the manner required by law fundamentally affects the validity of a suit as it erodes the competence of the suit and ousts jurisdiction of the Court to determine same. See AYA V. NKANU (2022) 11 NWLR (PT. 1840) 157 SC; MAINASARA V. F.B.N. PLC (2022) 6 NWLR (PT. 1827) 465 SC,I.B.E.D.CO. PLC V. FOLORUNSHO (2024) 5 NWLR (PT. 1931) 341 CA.” – Per UCHECHUKWU ONYEMENAM, J.C.A.

WRIT OF SUMMONS – NATURE AND SIGNIFICANCE OF A WRIT OF SUMMONS

“A writ of summons is an initiating legal process by which the jurisdiction of a trial High Court can properly and validly be invoked by a person or party who intends to utilize the judicial process of that Court to seek reliefs or remedies from the Court against another on any legal ground. It is one way or mode of commencing actions in the High Court that is provided for in the Rules of Courts. As an initiating or originating process for the invocation of a Court’s jurisdiction, a writ of summons is the foundation and the process which gives life to a valid action before a High Court without which there could be no valid action before the Court in respect of which it can properly, in law, assume jurisdiction to conduct proceedings or adjudicate.” – Per UCHECHUKWU ONYEMENAM, J.C.A.

UNSIGNED ORIGINATING PROCESS – LEGAL EFFECT OF AN UNSIGNED ORIGINATING PROCESS

“An unsigned process, particularly originating process, is a worthless document, which does not have any efficacy in law. This is because, a document, which is not signed, has no origin in terms of its maker. Such a process or document, which is not traceable to any known author, may be said to have a spurious origin, therefore, it is incurably bad and cannot be remedied.” – Per UCHECHUKWU ONYEMENAM, J.C.A.

JURISDICTION – FOUNDATION AND IMPORTANCE OF JURISDICTION

“Jurisdiction is the foundation of adjudication. Jurisdiction is a threshold issue that determines the authority of a Court or Tribunal to entertain a case before it. This is because, it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution and law that it will have the judicial power and authority to entertain any cause or matter brought before it by the parties. The absence of such requisite jurisdiction would render any proceedings purportedly conducted by a Court an exercise in futility rendering it null, void, and of no effect whatsoever, no matter how well conducted.” – Per UCHECHUKWU ONYEMENAM, J.C.A.

CONDITIONS FOR JURISDICTION – PREREQUISITES FOR A COURT TO EXERCISE JURISDICTION

 “For a Court to have jurisdiction to entertain any matter before it, the following conditions must be fulfilled: (a) 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; (b) 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 (c) the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.” – Per UCHECHUKWU ONYEMENAM, J.C.A.

JURISDICTION AND FRIVOLOUS OBJECTIONS – IMPROPRIETY OF RAISING JURISDICTION ISSUE WITHOUT COMPELLING REASONS

“The issue of jurisdiction is not a magic wand that, can be waved without compelling and cogent reasons to do so, there must be a genuine reason at least, a fundamental defect, which will indeed affect the jurisdiction of a Court. Even the Court can raise the issue of jurisdiction suo motu, however, there must be compelling reason before same can be raised.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

LEGAL PRACTITIONER’S DUTY – OBLIGATION OF COUNSEL TO GIVE PROPER LEGAL ADVICE

 “Chief Cletus Okori, counsel to the Appellant being an expert of law has a duty to advise his client on what line of action to take in the light of the applicable law.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

FRIVOLOUS APPLICATIONS – PROPRIETY OF AWARDING COSTS AGAINST COUNSEL PERSONALLY

“I am in total agreement with the learned trial Court that the application filed by Chief Cletus Okori was filed to delay the course of Justice and having misadvised his client, the cost awarded against him personally was/is appropriate.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

AWARD OF COSTS – JUSTIFICATION FOR IMPOSING PERSONAL COSTS ON COUNSEL

 “By this deposition which Chief Cletus Okoi Esq. filed himself in support of the provocative motion challenging the Court’s jurisdiction on a ground that is patently false; namely, that the writ of summons was not signed, Chief Okoi had claimed full paternity for the application, and had not sought to share the credit with anyone. Having appropriated the credit solely to himself in the filing, the sanction the trial Court imposed on him personally, arising from the application’s very frivolous nature, is very deserving and warranted.” – Per NNAMDI OKWY DIMGBA, J.C.A.

ASSESSMENT OF COSTS – IMPOSITION OF SUBSTANTIAL COSTS FOR FRIVOLOUS APPEALS

“Cost of N500,000.00 (Five Hundred Thousand Naira) is awarded against the Appellants in favour of the Respondents. This cost is to be personally paid by Chief Cletus Okoi Esq. also for orchestrating this frivolous appeal.” – Per NNAMDI OKWY DIMGBA, J.C.A.

FRIVOLOUS APPEALS – CONSEQUENCES OF PURSUING UNMERITORIOUS APPEALS

“All the issues having been resolved in favour of the Respondents, this appeal is dismissed for being grossly unmeritorious. The Ruling of the lower Court in Suit No: HC/201/2016 delivered on 16/10/18 is hereby affirmed.” – Per NNAMDI OKWY DIMGBA, J.C.A.

COMPLIANCE WITH RULES – EFFECT OF PROPERLY SIGNED WRIT OF SUMMONS

“From the record of appeal before the Court, the writ of summons is contained at pages 1-3 of the record of appeal. Therein, the Registrar of the trial Court, one E.E. Effiong signed the writ of summons at page 1 on 26th April, 2016; and one Patrick Ekuri Esq, counsel to the Respondents signed the same writ of summons at page 3 as the Claimant’s counsel. Since there is no challenge of the record of appeal by the Appellant, I hold that the record has evidenced complete compliance of the Respondents with the condition precedent to initiating the suit, which conferred jurisdiction on the trial Court.” – Per UCHECHUKWU ONYEMENAM, J.C.A.

DELAY OF PROCEEDINGS – CONSEQUENCES OF DELIBERATE DELAY TACTICS

“The above chronology of events, as borne out by the Record, shows that indeed as the trial Court had found, there has been wanton delay of the proceedings on the part of the Appellants and a penalty by way of cost was truly desirable.” – Per NNAMDI OKWY DIMGBA, J.C.A.

CASES CITED

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• High Court of Cross River State (Civil Procedure) Rules 2008

• Court of Appeal Rules

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