CORAM

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ADAMU HOBON FHC

A.A. OKEKE FEDERAL HIGH COURT

A A. OKEKE FEDERAL HIGH COURT

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PARTIES

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YAZIDU A. ALIYUALH. ISA TUKUR APPELLANTS

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ALH. MOHAMMED SANI ABDULDAWERE MAZANG RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent’s case was that sometimes in the year 2000; he applied and was granted Right of Occupancy over the land in dispute covered by certificate No. TS/GH/BL & S/LAN/169734, after payment of the necessary fees in the sum of N25, 550. 00 and receipts issued in respect thereof. In 2001, the Respondent commenced development on the land by laying a foundation therein and halted due to financial constraint until later around February, 2009 when he mobilized his site Engineer and other laborers back to the site for the continuation of the work. The 1st Appellant later came in and laid claim over the land, and requested the site Engineer to stop work and vacate the land for him. This development reached the Respondent who was also invited to Jalingo Police station at the complaint of the 1st Appellant on the dispute over the ownership of the land. The Respondent was detained in the Police Station at a point in time. Infuriated with the turn of event, the Respondent took out a writ against the Appellants and claimed jointly and severally a declaration that the piece of land known as plot No. 3(D) road, measuring about 1196 square meters lying and situate at Anguwanya Mai Salla behind Presidential Annex Jalingo is the property of the Plaintiff, a declaration that the Defendants trespassed on the land by erecting a wall fence around same without the Plaintiff’s consent or permission among other reliefs. At the trial, the Respondent called 4 (four) witnesses and tendered 4 (four) exhibits. The Appellants as Defendants called 5 (five) witnesses and tendered 6 (six) documents which were admitted and marked as exhibits. At the close of the hearing, the Court below in a considered judgment, found in favour of the Respondent. Dissatisfied with the judgment of the court below, the Appellants have appealed to this court.

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HELD

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Appeal Allowed

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ISSUES

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Whether the originating processes used to commence Suit No. TRSJ/101/2009 as well as the entire proceedings conducted therein by the trial Court together with the resultant judgment are competent in law?

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RATIONES DECIDENDI

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GROUNDS OF APPEAL – MEANING OF GROUNDS OF APPEAL

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“However, the law is rock solid that Grounds of Appeal are said to be the reasons why the decision is considered wrong by the aggrieved party. See Albert Akpan V. Bob (2010)43 N.S.C.Q.R. 446; Azatse V. Zegcor (1994)5 NWLR (Pt.342) 76 at 83; Oladele V. The State (1991)1 NWLR (PT.170) P.708 AT 718. Any ground of Appeal which no issue was distilled is deemed abandoned. See Sparkling Breweries V. Union Bank (2001)7 NWLR S.C.N.J. 334.” –

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FORMULATION OF ISSUES FOR DETERMINATION – REQUIREMENT FOR THE COMPETENCE OF AN ISSUE FOR DETERMINATION

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“the law guiding formulation of issues has it that for an issue for determination to be competent, each issue must relate to at least one of the valid grounds of appeal. Any issue not derived from a ground of appeal, is incompetent and court cannot make finding on it. See Union Bank Plc V. Bouari (2008)2 SCNJ; WAEC V. Adeyanju (2008)4 SCNJ 167; Nwankwo V. Edcs U.A. (2007)2 SCNJ 89; Mil. Admin For Ekiti State V. Aladeyelu (2007)5 SCNJ 1.” –

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RULES OF COURT-MEANING AND ESSENCE OF RULES OF COURT

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“The complaint of the appellants is on non-compliance with the Rules of the High Court of Taraba State on the “signing of Writ of Summons” on filing. It is trite that Rules of Court are part of the machinery of justice made by the courts to regulate their proceedings and they are designed to assist in obtaining justice with ease, certainty and dispatch. True to the respondent’s argument contained at paragraph 11.1 of page 6 of the respondent’s brief, they partake of the nature of subsidiary legislation by virtue of section 18 (1) of the Interpretation Act Cap. I 23 Laws of the Federation of Nigeria 2004, and consequently have the force of law which must be obeyed by parties. See Hajag v. Hajah (2013) All FWLR (Pt.679) p.1054 at 1075, para.G-C; Stabilini v. Vision Nig Ltd v. S.V. Ltd (2011)8 NWLR (Pt.1249) p.265, at 276, para.A-B; Idris v. Abubakar (2011) All FWLR (Pt.557) p.733, at 748; Duke v. Akpabuyo Local Gov’t. (2005)19 NWLR (Pt.959) 130; Agip (Nig.) Ltd v. Agip Petroli Int’l. & Ors (2010)5 NWLR (Pt.1187) 348.” –

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ORIGINATING PROCESS – REQUIREMENT FOR THE VALIDITY OF AN ORIGINATING PROCESS

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“The courts have therefore, maintained over the years that for any originating process of the court to be valid, it must be signed by the litigant in person or by a Legal practitioner. See Okafor v. Nweke (2007)10 NWLR (Pt.1043) 521, First Bank of Nig. Ltd v. Maiwada (2012) Vol.213 LRCN 121 at 129 r.6; Omega Bank (Nig) Plc v. OBC Limited (2005); A.G. Abia State v. Agharanya (1999)6 NWLR (Pt.607) 362”.

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LEGAL PRACTITIONER – DEFINITION OF A LEGAL PRACTITIONER

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“However, a Legal Practitioner is defined under Section 2 of the Legal Practitioners Act Cap.L11, Laws of the Federation of Nigeria 2004, as follows:
“Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office or proceedings”.
The Act is silent as to who is a Barrister or a Barrister and Solicitor, but the qualifications for enrollment as a Barrister and Solicitor is provided under Section 7 of the Act as follows:
“Subject to the provisions of this section, a person shall be entitled to have his name enrolled if and only if:
i.He has been called to the BAR by the Body of Benchers; and
ii.He produces a certificate of his Call to the Bar to the Registrar”.

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ORIGINATING PROCESS – EFFECT OF A FAILURE TO SIGN AN ORIGINATING PROCESS

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“The portion of the endorsements to the Writ contained at page 2 of the record is reproduced hereunder, thus;
“This Writ is issued by Yahuza Abdullahi ESQ. of YAHUZA ABDULLAHI & CO….”
From the face of the above excerpt, it is glaringly clear that the Writ was prepared, though, unsigned and issued by one “Yahuza Abdullahi Esq. of Yahuza Abdullahi & Co.”, and who could possibly, have been a legal practitioner within the meaning of Section 2 of the Legal practitioners Act, notwithstanding the legal implication of absence of signature on the processes. It is to be noted that there exist a thin line between this particular appeal and the cases cited and relied upon by the Learned Appellants’ counsel such as: Okafor v. Nweke (2007)10 NWLR (Pt.1043) 521, First Bank of Nig. Ltd v. Maiwada (2012) Vol.213 LRCN 121 at 129 r.6; Omega Bank (Nig) Plc. v. OBC Limited (2005); A.G. Abia State v. Agharanya (1999)6 NWLR (Pt.607) 362. While in those cases cited particularly Okafor v. Nweke (supra), it was the originating appeal processes wrongly signed by a law firm such as “J.H.C. Okolo SAN & CO.”, who is neither a legal practitioner on the roll nor the litigant competent to prepare and sign court process that was in issue and such originating processes wrongly signed in the name of the law firms, were therefore, declared incompetent. In the case of this appeal before us, the signature is completely absent on the Writ which has the name of “Yahuza Abdullahi Esq. of Yahuza Abdullahi & Co.” appeared on the endorsement thereto. These differences notwithstanding, the implication of such an omission is so fundamental that target to castigate the case or appeal arising therefrom as being incompetent.” The above Rule of Court is obedient to clarity and unambuigity. To this end, the law gives the court the license to accord to its literal meaning without any embellishments, see Olafu V. Itodo (2010)18 NWLR; Shettima V. Goni (2011); Ardo V Nyako(2014); Ikechukwu V. Nwoye(2015). That is to say, on an action founded on writ of summons, a litigant or his legal representative shall:-
i.Prepare and sign such originating court process(s) as in Form 1 to the appendix; and
ii.Such court processes or document shall be filed at the registry of the court for issuance and service to all parties concerned upon payment of all necessary fees.
Unless and until the above conditions are satisfied, an action will not be said to have properly commenced before the court.” –

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ORIGINATING PROCESS – EFFECT OF A DEFECT IN AN ORIGINATING PROCESS

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“I agree “in toto” with the position of the learned counsel for the Appellants that, the said defect in the originating process of the Respondent robbed the trial Court of the requisite jurisdiction to adjudicate upon the action of the Respondent. Consequently, the entire proceedings of the trial Court, in the action, leading to the judgment being appeal against amount to a nullity and are liable to be set aside by this Court. See the cases of: (1) Madukolu v. Nkemdilim (1962) LPELR-24022(SC); (2) Adetayo v. Ademola (2010) LPELR-155(SC); (3) C.P.C. v. Ombugadu (2013) LPELR-21007(SC) and (4) Mcfoy v. U.A.C. (1962) A.C. p.152.

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CASES CITED

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None

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STATUTES REFERRED TO

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Interpretation Act Cap. I 23 Laws of the Federation of Nigeria 2004|Legal practitioners Act Cap.L11, Laws of the Federation of Nigeria 2004|

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