(2016) LPELR-40165(CA)

Transcription

1 MOUDKAS NIG ENT. LTD & ORS v. OBIOMA & ORS CITATION: UZO I. NDUKWE-ANYANWU JOSEPH SHAGBAOR IKYEGH SAMUEL CHUKWUDUMEBI OSEJI In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON FRIDAY, 11TH MARCH, 2016 Suit No: CA/L/794/2012 Before Their Lordships: Between M. O. MOUDKAS NIGERIA ENT. LIMITED ALHAJI M. O. OLADOKUN EMIKO ISRAEL OBIOMA MADAM HANNAH ANIFATU BAKARE MR. CHARLES ESUMAI And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) - Respondent(s) RATIO DECIDENDI

2 1 ACTION - STATEMENT OF CLAIM: Effect of a statement of claim not signed by a party or a legal practitioner: Whether the defect can be cured by amendment "Of the statement of claim I am clear in my modest opinion that it was not signed by a recognised or known registered legal practitioner or the claimants. It is on that score incurable defective. The defect cannot be cured by an amendment. The amended statement of claim does not therefore cure the mortal defect in the statement of claim. See Ministry of Works and Transport, Adamawa State and Ors. v. Yakubu and Anor. (2013) 6 NWLR (pt.1351) 481 at 495 -?? 496 as follows-??my Lord, in the instant appeal, it is not in dispute that the originating process was neither signed by a party to the case nor a legal practitioner but by "J. R. Ndawalam and Co." a non- cognizance person whose name is not on the roll of this Court. It must be stretched that there is a world of difference between a legal practitioner and his chambers. While a legal practitioner is lawyer whose name is on the cali roil, his law chambers is not, hence it cannot perform the duty of a legal practitioner and perhaps cannot be addressed as learned counselor learned Senior Advocate of Nigeria, SAN as the case may be....?applying these principles to the case at hand, I have no doubt in my mind that the originating process having not being properly initiated, the action is incompetent and any appeal arising from such an incompetent process is also incompetent. See: also Okafor v. Nweke (2007) All FWLR (Pt. 360) at , (2007) 10 NWLR (Pt. 1043) 521; The Registered Trustee of Apostolic Church Lagos Area v. Akindele (1967) NMLR 263 at 265, (1967) SCNLR 205. My Lords, I would have ended this judgment here, but for the submission of the respondent counsel that the said originating process was amended and as such it does not form basis upon which the case was tried and determined. The questions that easily come to mind are that can an incompetent originating process or processes be amended, or can the incompetence of the process be cured by the amendment? No doubt, the learned counsel of the respondents pretends not to appreciate the fundamental nature of an originating process. The fatal effect of the signing of an originating process by a law firm is that the entire suit was incompetent ab initio. It was dead at the point of filing. This highlights the painful realities that confronts a litigant when counsel fails to sign processes as stipulated by law. The originating process, as in this case, is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment?". See also Okarika v. Samuel (2013) 7 NWLR (pt.1352) 19, Nigerian Army v. Samuel (2013) 14 NWLR (pt. 1375) 466, Alawiye v. Ogunsanya (2013) 5 NWLR (pt. 1348) 570 and the cases (supra) cited by the appellants on the issue."per IKYEGH, J.C.A. (Pp. 6-8, Paras. C-E) - read in context

3 2 ACTION - SURVIVAL OF CAUSE OF ACTION: Whether an action can survive on a valid writ of summons where the statement of claim has been struck out "Having regard to the fact that the statement of claim is incurably defective the proceedings built on it are a nullity and are hereby set aside together with the judgment built on its successor which could not have amended the mortally defective statement of claim. The writ of summons was, however, properly signed as stated earlier. It would keep the case alive at the Court below vide Hamzat and Anor. v. Sanni and Ors. (2015) 5 NWLR (pt.1453) 486 at 505 as per the judgment of Peter-Odili, J.S.C., thus "From what is put across by learned counsel for the respondent to which learned counsel for the appellant merely glossed over and in doing that failed to appreciate the danger their processes and competence were in, I find it easy to go along with the contention of the respondent that the appellants' statement of claim on which evidence was led is a nullity having not been signed by a legal practitioner as known by the definition of Section 24 of the Legal Practitioners' Act and so the statement of claim has to be struck out as a nullity and of course along with that striking out would be the evidence hanging on the purported pleadings, This is a situation well established by this Court in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521. The point has to be made that the writ of summons being competent and valid, the suit is well initiated by due process of the law and would therefore stand. I say no more in that regard." See further the judgment of Ariwoola J.S.C., in page 506 of the law report thus "??However, because the writ of summons by which the action was commenced and which originated the action was properly signed by a legal practitioner as prescribed by our law, it remains valid and can still be built upon as a solid foundation. It is the statement of claim upon which evidence was based that cannot stand. Indeed as the saying goes, you cannot put something or nothing and expect it to stay, it will fall. Evidence led in the case based on incompetent statement of claim is also incompetent and should be discountenanced and struck out. Therefore, the writ of summons which was separately filed several months before the statement of claim was filed having been properly signed and competent cannot and should not be allowed to be killed by an incompetent statement of claim. It stands, while the statement of claim is struck out."per IKYEGH, J.C.A. (Pp. 8-10, Paras. F-F) - read in context 3 COURT - JURISDICTION: Condition for a Court to have jurisdiction over a cause of action "For a Court to have jurisdiction over a cause of action, the action must be competent. That means it must come before the Court initiated by due process. By due process, it means that, the originating process ought to be signed by a legal practioner as envisaged by Section 2(1) and 24 of the Legal Practitioners Act LFN See also Okafor vs. Nweke (2007) 10 NWLR of 1043 page 521."Per NDUKWE- ANYANWU, J.C.A. (P. 12, Paras. A-C) - read in context

4 JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment) : The appeal is against the judgment of the High Court of Justice of Lagos State sitting at Ikeja Judicial Division (the Court below) whereby the 1st respondent was granted ownership of a parcel of land located at Ogombo village within Eti-Osa Local Government of Lagos State, while the counter-claim of the appellants for trespass and injunction to the same parcel of land was dismissed. Aggrieved with the decision of the Court below, the appellant filed a notice of appeal which was amended with the leave of the Court and filed on with four grounds of appeal. A brief of argument which was amended with the leave of the Court was filed on , but deemed properly filed on Four issues were formulated for determination in the appeal in the amended brief of argument. The first issue for determination which is said to be covered by ground 1 of the amended notice of appeal reads- "Whether the proceedings before the Lower Court amounted to a nullity in law and consequently ought to be set aside for want of jurisdiction".

5 The ground 1 of the amended notice of appeal upon which the first issue for determination is based reads - "The learned trial Judge erred in law when she assumed jurisdiction to entertain the claimantsã ÂÂ suit when the writ of summons (which activated the judicial power of the trial Court) together with the Statement of Claim and other frontloaded processes were neither signed by the claimants nor a legal practitioner as prescribed by the legal practitioners Act LFN Particulars of Error A. The Writ of Summons, Statement of Claim and other accompanying processes mandatorily required to accompany the originating process were not signed by a Legal Practitioner whose name appears on the roll of call or; someone who is capable of Signing such processes in accordance with Section 2(1) and 24 of the Legal Practitioners Act. LFN B. By Order 3 Rule 2(1) and Order 5 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2012 read together with Sections 2 and 24 of the Legal Practitioners Act LFN 2004, the manifest defect in the Statement of Claim and other accompanying processes before the Lower Court

6 makes the proceedings a nullity. C. The decisions of the Supreme Court in Okafor v. Nweke (2007) 10 NWLR (pt. 1043) and the unreported decisions of this Honourable Court in: M.I Aremu v. Wadud Ayinde Shinaba &Ors - unreported Appeal No: CAl1175/2010 delivered on the is" January 2014; Sunday Adeneye & Anor v. Alhaji Bukar Yaro - unreported Appeal No: CAl1266/2002 delivered on the 25th day June 2010 are on all fours with the facts of the extant case." The cases of Okafor v. Nweke (2007) 10 NWLR (pt.1043) 521, Ogundele & Anor. vs. Agiri (2009) 12 S.C (pt 1) 13, Oketade vs. Adewunmi & Ors. (2010) 2-3 S.C (pt. 1), NNB Plc vs. Denclang Limited (2003) 4 NWLR (pt. 916) 549 at 573, Sunday Adeneye & Anor. vs. Alhaji Bukar Yaro â Unreported Appeal No: CA/L/266/2002 delivered on 25th day June 2010, Peale Merchant Bank Ltd vs. NDIC (Unreported) Appeal No: CA/L/575/05 delivered on 14th day of May, 2010, Aremu vs. Wadud Ayinde Shinaba (Unreported) Appeal No: CA/L/1175M/2010 delivered on the 17th day of January, 2014, SLB. Consortium vs. NNPC (2011) 9 NWLR (pt. 1252) 317 at , Edet vs. Chief of Air Staff 3

7 (1994) 2 NWLR (pt. 324) 41 at 65-66, Garba Aiki vs. Gabiel Idowu (2006) 9 NWLR (part) at page 65, Tamti vs. N.C.S.B. (2009) 7 NWLR (part 1141) 631 at 654, Nigerian Army vs. Samuel (2013) 14 NWLR Part 1375 page 466 at page 486, read with Orders 3 Rule 2(1)(a), 5 rule 1(i), 6 Rule 2(3), 15 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2012 and Section 24 of the Legal Practitioners Act, 2004, were cited for the submission that by signing the statement of claim in page 3 of the record of appeal (the record) and the reply to the statement of defence in page 40 of the record under- "B.A. SATAYO-ARO and Co. 148 Tokunbo Street Lagos". The proceedings at the Court below together with the judgment built on it is a nullity as the originating process was signed by a person unknown to law, therefore the appeal should be allowed and the proceedings at the Court below together with the judgment should be set aside and the case at the Court below struck out. In response to issue 1 (supra) the 1st respondent argued under issue (iii) of the issues for determination in his amended brief of argument filed on

8 that the writ was signed by B.A. SOTAYO ESQ. of B.A. SOTAYO-ARO and Co. whose address is given as 148 Tokunbo Street, Lagos, so the writ was properly signed and saved the proceedings and the judgment; more so the amended statement of claim which the Court below based its judgment on was signed by a recognised legal practitioner duly authorised to sign such processes, therefore the amended statement of claim superseded the statement of claim that was not signed by a known legal practitioner, consequently, it was urged that the proceedings at the Court below was not a nullity citing in support Order 3 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004 and the cases of Braithwaite v. Skye Bank Plc (2012) LPELR â 15532, Azubuike v. Hassan (2014) LPELR , SLB Consortium v. NNPC (2011) 9 NWLR (pt.1252) 317. It appears the writ of summons in page 1 of the record was signed by B.A. Sotayo Esq., a known legal practitioner in the law firm of B.A. Sotayo-Aro and Co. of No.148 Tokunbo Street Lagos which is sufficient and good in law. The originating process, the writ of summons, thus properly initiated the action.

9 The statement of claim which superseded the writ of summons was, however, signed in page 5 of the record thus "B.A. SOTAYO-ARO and Co. 148 Tokunbo Street Lagos". The 1st respondent argued that the statement of claim was amended and bore the signature of a known legal practitioner therefore it saved the proceedings. I agree that the writ was properly signed. Of the statement of claim I am clear in my modest opinion that it was not signed by a recognised or known registered legal practitioner or the claimants. It is on that score incurable defective. The defect cannot be cured by an amendment. The amended statement of claim does not therefore cure the mortal defect in the statement of claim. See Ministry of Works and Transport, Adamawa State and Ors. v. Yakubu and Anor. (2013) 6 NWLR (pt.1351) 481 at as follows- My Lord, in the instant appeal, it is not in dispute that the originating process was neither signed by a party to the case nor a legal practitioner but by "J. R. Ndawalam and Co." a non- cognizance person whose name is not on the roll of this Court. It must be stretched

10 that there is a world of difference between a legal practitioner and his chambers. While a legal practitioner is lawyer whose name is on the cali roil, his law chambers is not, hence it cannot perform the duty of a legal practitioner and perhaps cannot be addressed as learned counselor learned Senior Advocate of Nigeria, SAN as the case may be.... Applying these principles to the case at hand, I have no doubt in my mind that the originating process having not being properly initiated, the action is incompetent and any appeal arising from such an incompetent process is also incompetent. See: also Okafor v. Nweke (2007) All FWLR (Pt. 360) at , (2007) 10 NWLR (Pt. 1043) 521; The Registered Trustee of Apostolic Church Lagos Area v. Akindele (1967) NMLR 263 at 265, (1967) SCNLR 205. My Lords, I would have ended this judgment here, but for the submission of the respondent counsel that the said originating process was amended and as such it does not form

11 basis upon which the case was tried and determined. The questions that easily come to mind are that can an incompetent originating process or processes be amended, or can the incompetence of the process be cured by the amendment? No doubt, the learned counsel of the respondents pretends not to appreciate the fundamental nature of an originating process. The fatal effect of the signing of an originating process by a law firm is that the entire suit was incompetent ab initio. It was dead at the point of filing. This highlights the painful realities that confronts a litigant when counsel fails to sign processes as stipulated by law. The originating process, as in this case, is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment". See also Okarika v. Samuel (2013) 7 NWLR (pt.1352) 19, Nigerian Army v. Samuel (2013) 14 NWLR (pt. 1375) 466, Alawiye v. Ogunsanya (2013) 5 NWLR (pt. 1348) 570 and the cases (supra) cited by the appellants on the issue. Having regard to the fact that the statement of claim is incurably defective the proceedings built on it are a nullity and

12 are hereby set aside together with the judgment built on its successor which could not have amended the mortally defective statement of claim. The writ of summons was, however, properly signed as stated earlier. It would keep the case alive at the Court below vide Hamzat and Anor. v. Sanni and Ors. (2015) 5 NWLR (pt.1453) 486 at 505 as per the judgment of Peter-Odili, J.S.C., thus "From what is put across by learned counsel for the respondent to which learned counsel for the appellant merely glossed over and in doing that failed to appreciate the danger their processes and competence were in, I find it easy to go along with the contention of the respondent that the appellants' statement of claim on which evidence was led is a nullity having not been signed by a legal practitioner as known by the definition of Section 24 of the Legal Practitioners' Act and so the statement of claim has to be struck out as a nullity and of course along with that striking out would be the evidence hanging on the purported pleadings, This is a situation well established by this Court in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521. The point has to

13 be made that the writ of summons being competent and valid, the suit is well initiated by due process of the law and would therefore stand. I say no more in that regard." See further the judgment of Ariwoola J.S.C., in page 506 of the law report thus "However, because the writ of summons by which the action was commenced and which originated the action was properly signed by a legal practitioner as prescribed by our law, it remains valid and can still be built upon as a solid foundation. It is the statement of claim upon which evidence was based that cannot stand. Indeed as the saying goes, you cannot put something or nothing and expect it to stay, it will fall. Evidence led in the case based on incompetent statement of claim is also incompetent and should be discountenanced and struck out. Therefore, the writ of summons which was separately filed several months before the statement of claim was filed having been properly signed and competent cannot and should not be allowed to be killed by an incompetent statement of claim. It stands, while the statement of claim is struck out." Similarly, the statement of defence

14 and counter-claim which was signed in page 82 of the record by "R. O. Samuel and Associates" was signed by a person not known to law as was the statement of claim alluded to earlier, therefore the process is incompetent and is hereby struck out along with the evidence built on it on the same principle of law and the cases applied (supra) in the case of the statement of claim. See Oketade v. Adewunmi (2010) 8 NWLR (pt.1195) 63. The panacea, however, is that the counter-claimant may start afresh with a properly signed statement of defence and counter-claim in the new trial vide F.B.N. Plc v. Maiwada (2013) 5 NWLR (pt.1348) 444. I would allow the appeal on this issue and set aside the proceedings of the Court below including the judgment based thereon with an order that the writ of summons survives and fresh processes/proceedings may be built on it before a Court differently constituted to be designed by the learned Chief Judge of Lagos State as the case was earlier heard on the merit by the Court below from which the appeal emanated. Parties to bear their costs. UZO I. NDUKWE-ANYANWU, J.C.A.: I had the 11

15 privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Shagbao Ikyegh JCA. For a Court to have jurisdiction over a cause of action, the action must be competent. That means it must come before the Court initiated by due process. By due process, it means that, the originating process ought to be signed by a legal practioner as envisaged by Section 2(1) and 24 of the Legal Practitioners Act LFN See also Okafor vs. Nweke (2007) 10 NWLR of 1043 page 521. For this and the more robost reasoning in the lead judgment, I also hold that this appeal is meritorious and allowed. I abide by all the consequential orders contained therein and adopt them as mine. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the opportunity of reading before now the lead judgment delivered by learned brother J. S. IKYEGH JCA. I agree with the reasoning and conclusions reached therein and I adopt same as mine. The appeal is accordingly allowed. I abide by the consequential orders made in the lead judgment including order as to cost.