(2017) LPELR-42702(CA)

Transcription

1 SIJUADE v. ELUGBINDIN & 3 ORS. CITATION: In the Court of Appeal In the Akure Judicial Division Holden at Akure ON MONDAY, 15TH MAY, 2017 Suit No: CA/AK/48/2014 Before Their Lordships: UZO IFEYINWA NDUKWE-ANYANWU OBANDE FESTUS OGBUINYA RIDWAN MAIWADA ABDULLAHI Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal ADEYEMI SIJUADE - Appellant(s) RAIMI ELUGBINDIN & 3 ORS. RATIO DECIDENDI And 1. ACTION - ORIGINATING PROCESS(ES): Effect of a defective originating process - Respondent(s) "In the instant case it was obvious that the Appellant as Plaintiff in the Lower Court failed to initiate the suit properly. The signing of the Writ by an unknown person and the signing of the Statement of Claim by a law firm is against what the law envisaged in Section 2(1) and Section 24 of Legal Practitioner Act Be that as it may, the Originating Process i.e. the Writ of Summons and Statement of Claim in this suit are incompetent and incurably bad. They cannot be remedied. The proceedings in the Lower Court are null and void. The Lower Court had no jurisdiction to entertain the suit. It therefore follows that there is no judgment to appeal on."per NDUKWE-ANYANWU, J.C.A. (P. 12, Paras. B-E) - read in context 2. ACTION - ORIGINATING PROCESS(ES): Effect of a defective originating process "It is not proper and convenient to place something on nothing with the expectation of it stay. There has to be proper foundation for what is to be built on it to stand. Jurisdiction is a fundamental issue and strong pillar for any matter brought before the Court of Law. Where the case is commenced with an incompetent Writ and Statement of Claim as in this instant matter, the Court is robbed of jurisdiction to entertain it. Anything done in furtherance of the proceedings without due consideration of the incompetent Writ and Statement of Claim that initiated the action will be null, void and of no effect whatsoever."per ABDULLAHI, J.C.A. (Pp , Paras. D-A) - read in context

2 3. COURT - RAISING ISSUE(S) SUO MOTU: Position of the law where Court raises an issue suo motu "It is pertinent to note at this stage that when a Court raises an issue on its own motion, or raises an issue not in contemplation of the parties, or an issue not before the Court, the Courts are said to have raised the issue suo motu. Therefore, it is desirable that the parties should be heard before a decision is reached on the issue. This is what procedural fairness entails. See KUTI V BALOGUN (1978) 1 SC PG. 53, OGIAMIEN V. OGIAMIEN (1969) NMLR PG.248, ADENIJI V. ADENIJI (1972) 4 SC PG.10, IRIRI V. ERHUELOBARA (1991) 2 NWLR (PT.173) PG.252. However, the Court in GBAGBARIGHA V TORUEMU [2013] 6 NWLR [PT.1350] PG The Supreme Court per Rhodes-Vivour JSC held and stated when there would be no need to call the parties to address the Court on an issue raised suo motu by the Court. (1) When the issue relates to the Court's own jurisdiction. (2) When both parties are not aware of or ignored a Statute which may have a bearing on the case or (3) When on the face of the Record, serious questions of fairness of the proceedings is in evidence. COMPTOIR COMMERCIAL & IND. S.P.R. LTD. V. O.G.S.W.C. (2002) 9 NWLR (PT.773) PG.629, KOLAWOLE V. A.G. OYO STATE (2006) 3 NWLR (PT.966) PG.50, EZEANYA V. OKEKE (1995) 4 NWLR (PT.388) PG.142, ACB PLC V. LOSADA (NIG.) LTD. (1995) 7 NWLR (PT.405) PG.26, OJUKWU V. YAR-ADUA (2009) 12 NWLR (PT.1154) PG.50, OYEWOLE V. AKANDE (2009) 15 NWLR (PT.1163) PG.119. As reiterated early, it is wrong for a Court to raise an issue suo motu and decide on it without inviting the parties to address it on same. However, the principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of facts. In some special circumstances like this, the Court can raise an issue of law or jurisdiction suo motu and decide upon it without hearing the parties before it."per NDUKWE-ANYANWU, J.C.A. (Pp , Paras. D-A) - read in context 4. JUDGMENT AND ORDER - ORDER OF COURT: Proper order a court would make where it lacks jurisdiction to entertain a matter "Where the Court has no jurisdiction to adjudicate on a case, the only thing left for the Court to do is to strike out the case. UMANNAH V. ATTAH (2006) 17 NWLR (PT.1009) PG. 503."Per NDUKWE-ANYANWU, J.C.A. (P. 12, Paras. E-F) - read in context

3 5. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Effect of a court process signed in the name of a law firm "The Appellant as Plaintiff took out a writ on 20th May, 2001 which was signed by someone as counsel. The Statement of Claim was signed by the Plaintiff Solicitors in the following manner: Plaintiff's Solicitor SOJI OYEBADEJO & CO. SOLICITORS 55, IGBOYA STREET, ILE-IFE The Defendants/Respondents had not complained about the competency of this suit filed in the Lower Court. The Court suo motu discovered that there was an infringement in the initiation of the Writ which is the Originating Process in this suit. This is an infringement that borders on the jurisdiction of the Court to adjudicate on this suit. The question of jurisdiction is very fundamental in the adjudication of matters in Court. If a Court has no jurisdiction to hear and determine a matter, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be, because a defect in competency is very fundamental. DAPIALONG V. DARIYE (2007) 8 NWLR (PT.1306) PG.332. The issue of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. UKWU V. BUNGE (1997) 8 NWLR (PT.518) PG.527, A.G. LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PT.111) PG.552, NNONYE V. ANYICHIE (2005) 2 NWLR (PT.910) PG.625. Whenever or wherever, the jurisdiction of the Court is challenged, the Court is entitled to consider the plaintiffs claim before it in order to decide whether it has jurisdiction to entertain it. "It is settled that a Court is competent when the Court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; 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 the case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. All the requirements must coexist conjunctively before jurisdiction can be exercised by the Court. It therefore means that where a Court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted." UMANAH V ATTAH (2006) 17 NWLR (PT.1009) 503, MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587, SKENCONSULT V. UKEY (1981) 1 SC, BENIN RUBBER PRODUCERS LTD. V. OJO (1997) 9 NWLR (PT.521) 388, MAGAJI V. MATARI (2000) 5 SC 46, ALAO V. AFRICAN CONTINENTAL BANK LTD. (2000) 6 SC (PT.1) 27, GALADIMA V. TAMBAI (2000), 6 SC (PT.1) 196, ARAKA V. EJEAGWU (2000) 12 SC (PT.1) 99, LUFTHANSA AIRLINES V. ODIESE (2006) 7 NWLR (PT.978) 39. In the present appeal, the Writ of Summons and the Statement were signed by unknown persons who were not identified in both processes. In the writ, there was just a signature. However, in the Statement of claim it was signed by a law firm "SOJI OYEBADEJO & CO." Section 2(1) and 24 of the Legal Practitioner Act provide as follows: "Section 2(1): Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll. Section 24: 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 purposes of any particular office or proceedings." By virtue of Section 24 of Legal Practitioner Act, a Legal Practitioner in Nigeria is a person entitled in accordance with the provision of this Act to practice as a lawyer. OKAFOR V NWEKE (2007) 10 NWLR (PT.1043) PG.521. It is settled law that only a Legal Practitioner recognised by the law can issue or sign Court processes. Any Court process not issued or signed by a Legal Practitioner recognised by law is fundamentally defective, incompetent, null and void and thus incapable of conferring jurisdiction on any Court of law to entertain the matter. The propriety of signing a Court process in the name of a law firm rather than in the name of Legal Practitioner was considered by the Supreme Court in OKAFOR V NWEKE (Supra) and the conclusion of the Supreme Court was that such a process was incompetent and liable to be struck out. See also OGUNDELE V AFRI (2009) 18 NWLR (Pt.1173) PG.213, SLB CONSORTIUM V. NNPC (2011) 4 SCNJ PT.211, OKELADE V. ADEWUNMI (2007) 10 NWLR (PT.1043) PG. AND CONTINENTAL SHIPYARD LTD V. EZIOGOLI SHIPPING LTD. (2010) 1 WRN PG.138. The Originating Processes commencing the suit in the Lower Court was incompetent having been signed by the law firm of "SOJI OYEBADEJO & CO." and the Writ just signed without indicating who owned the signature. This fundamental error in initiating the action is fatal and has robbed the Lower Court of jurisdiction to entertain the suit at all and the judgment so delivered is null and void. Once a Court lacked jurisdiction, a party cannot use any Statutory Provision or Common Law principle to impose it because absence of jurisdiction is irreparable in law."per NDUKWE-ANYANWU, J.C.A. (Pp. 6-10, Paras. B-D) - read in context

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5 UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Osun State delivered by Hon. Justice F. E. Awolalu on the 4th July, The Appellant as Plaintiff had filed the action against the Respondent as Defendant, and subsequently sought to discontinue same. In granting the application, the learned trial judge dismissed the suit and awarded cost of N100, against the Plaintiff. The facts of the case can briefly be summarized as follows: the Plaintiff now Appellant, via a Writ of Summons dated 20th May 2002 claimed against the Defendants now Respondent as follows;- 1. The sum of N50,000 being general damages for trespass by the Defendants on the Plaintiff parcel of land situate lying and being at Kosere Village, along Ife-Ifewara Road, Ile-Ife. 2. Injunction restraining the Defendants, their servants, agents, privies and any other person claiming through them from further trespassing or entering the said land. The Respondents entered appearance and filed their Statement of Defence. The Appellant thereafter filed Reply to the Statement of 1

6 Defence. On the hearing date the Appellant made an oral application for discontinuance of the action based on Order 23(1) (2) of the Osun State High Court [Amended) Civil Procedure Rules The trial judge in delivering its judgment dismissed the Appellant's action and awarded N100,000 cost against the Appellant. Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 5th July, 2013 consisting of three grounds of Appeal. In accordance with the Rules of this Court, parties filed their respective brief of argument. The Appellant's brief was filed on the 5th June, 2014; while the Respondent's brief was filed on the 6th November, The Appellant, in his brief formulated two Issues for determination viz: 1. Whether the Plaintiff can withdraw his claim against the Defendants when pleadings have not been completed in a case where N50,000 was claimed as damages and costs of N10,000 had been awarded against him. 2. Whether in a claim of N50,000 damages, costs of N100,000 can be awarded by the Court.

7 The Respondents on their part adopted the Issues formulated by the Appellant ISSUE 1 Learned 2

8 counsel for the Appellant submitted that by the provision of Order 23 Rule (1) (2) of the Osun State [Amended] Civil Procedure Rules 2008 the Plaintiff has the right to discontinue or withdraw his case. He contended that the Lower Court having awarded cost of N10,000 against the Appellant for failure to file his Amended Statement of Claim, the trial Court was wrong in holding that pleadings have been concluded and subsequently dismissing the action. He further contended that failure to file the amended pleading was a mistake of counsel which should not be visited on the party. Counsel also contended the Appellant having obtained a Customary Judgment which was duly pleaded before the Court, the dismissal of the suit by the High Court will foreclose his right to ever claim his property. He thus urged this Court to allow this appeal. Learned counsel for the Respondent submitted that contrary to the Appellant's Counsel Submission, there was a valid and subsisting pleading before the trial Court and that failure of the Appellant to file its amended pleading did not in any way affect the original pleading before the Court. Counsel referred

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10 to the Statement of Claim filed on 20th May 2002; Statement of Defence filed on 16th April, 2004 and the Appellant's reply filed on the 6th January 2006 at pages 1 to 10 of the Record. He also refer to the case ofamadi V CHINDA & ORS (2009) 5 SCM 27. Counsel reproduced Order 23 of the Osun State [Amended] Civil Procedure Rules 2008 and submitted that the said provision is not in favour of the Appellant, he submitted that it is trite law that an application for discontinuance made after the case have been set down for hearing can only be withdrawn with leave of Court and in granting leave, the Court has the discretion of what order to make. He further contended that the exercise of discretion of the trial Court cannot be interfered with by an appellate Court. In the instant case, the suit was already set down for hearing before the Appellant made the oral application to withdraw the suit in open Court. Thus the order of dismissal was within the discretion of the trial Court, which this Court will not interfere with. ISSUE TWO Learned counsel for the Appellant submitted that though the award of costs is within the discretion of the 4

11 trial Court, such discretion must be exercised judicially and judiciously. It is the contention of counsel that the award of N100,000 cost by the trial judge is faulty on the following grounds: 1. Because the Supreme Court has limited post judgment cost to N50, The cost of N100,000 which is far in excess of the N50,000 claimed as damages in the case is a miscarriage of justice. 3. The N100,000 cost was based on the wrong premises that pleading have been concluded. He thus urged this Court to set aside the judgment of the Lower Court. On the other hand, learned counsel for the Respondent submitted that the trial Court rightly awarded the cost of N100,000 against the Appellant based on the antecedent of the case as explained by the Respondent in his application for cost before the Court. Counsel also contended that factors to be taken into account in interfering with the discretion of the Lower Court by the Appellate Court was set out in the case of ANIEKAN AMOS PETER V. ASST INSP GENERAL OF POLICE (2001) FWLR (PT.49) He further contended that the Appellant has failed to show the presence of any of those factors to

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13 justify the interference with the discretion of the Lower Court in this case. He thus urged this Court to hold that the cost was not excessive. RESOLUTION The Appellant as Plaintiff took out a writ on 20th May, 2001 which was signed by someone as counsel. The Statement of Claim was signed by the Plaintiff Solicitors in the following manner: Plaintiff s Solicitor SOJI OYEBADEJO & CO. SOLICITORS 55, IGBOYA STREET, ILE-IFE The Defendants/Respondents had not complained about the competency of this suit filed in the Lower Court. The Court suo motu discovered that there was an infringement in the initiation of the Writ which is the Originating Process in this suit. This is an infringement that borders on the jurisdiction of the Court to adjudicate on this suit. The question of jurisdiction is very fundamental in the adjudication of matters in Court. If a Court has no jurisdiction to hear and determine a matter, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be, because a defect in competency is very fundamental. DAPIALONG V. DARIYE 6

14 (2007) 8 NWLR (PT.1306) PG.332. The issue of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. UKWU V. BUNGE (1997) 8 NWLR (PT.518) PG.527, A.G. LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PT.111) PG.552, NNONYE V. ANYICHIE (2005) 2 NWLR (PT.910) PG.625. Whenever or wherever, the jurisdiction of the Court is challenged, the Court is entitled to consider the plaintiffs claim before it in order to decide whether it has jurisdiction to entertain it. It is settled that a Court is competent when the Court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; 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 the case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the Court. It therefore means that where a Court has no jurisdiction 7

15 to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted." UMANAH V ATTAH (2006) 17 NWLR (PT.1009) 503, MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587, SKENCONSULT V. UKEY (1981) 1 SC, BENIN RUBBER PRODUCERS LTD. V. OJO (1997) 9 NWLR (PT.521) 388, MAGAJI V. MATARI (2000) 5 SC 46, ALAO V. AFRICAN CONTINENTAL BANK LTD. (2000) 6 SC (PT.1) 27, GALADIMA V. TAMBAI (2000), 6 SC (PT.1) 196, ARAKA V. EJEAGWU (2000) 12 SC (PT.1) 99, LUFTHANSA AIRLINES V. ODIESE (2006) 7 NWLR (PT.978) 39. In the present appeal, the Writ of Summons and the Statement were signed by unknown persons who were not identified in both processes. In the writ, there was just a signature. However, in the Statement of claim it was signed by a law firm "SOJI OYEBADEJO & CO. Section 2(1) and 24 of the Legal Practitioner Act provide as follows: "Section 2(1): Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll. Section 24: 8

16 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 purposes of any particular office or proceedings." By virtue of Section 24 of Legal Practitioner Act, a Legal Practitioner in Nigeria is a person entitled in accordance with the provision of this Act to practice as a lawyer. OKAFOR V NWEKE (2007) 10 NWLR (PT.1043) PG.521. It is settled law that only a Legal Practitioner recognised by the law can issue or sign Court processes. Any Court process not issued or signed by a Legal Practitioner recognised by law is fundamentally defective, incompetent, null and void and thus incapable of conferring jurisdiction on any Court of law to entertain the matter. The propriety of signing a Court process in the name of a law firm rather than in the name of Legal Practitioner was considered by the Supreme Court in OKAFOR V NWEKE (Supra) and the conclusion of the Supreme Court was that such a process was incompetent and liable to be struck out. See also OGUNDELE V AFRI (2009) 18 NWLR (Pt.1173) PG.213, SLB CONSORTIUM V. NNPC (2011) 4 SCNJ 9

17 PT.211, OKELADE V. ADEWUNMI (2007) 10 NWLR (PT.1043) PG. AND CONTINENTAL SHIPYARD LTD V. EZIOGOLI SHIPPING LTD. (2010) 1 WRN PG.138. The Originating Processes commencing the suit in the Lower Court was incompetent having been signed by the law firm of "SOJI OYEBADEJO & CO." and the Writ just signed without indicating who owned the signature. This fundamental error in initiating the action is fatal and has robbed the Lower Court of jurisdiction to entertain the suit at all and the judgment so delivered is null and void. Once a Court lacked jurisdiction, a party cannot use any Statutory Provision or Common Law principle to impose it because absence of jurisdiction is irreparable in law. It is pertinent to note at this stage that when a Court raises an issue on its own motion, or raises an issue not in contemplation of the parties, or an issue not before the Court, the Courts are said to have raised the issue suo motu. Therefore, it is desirable that the parties should be heard before a decision is reached on the issue. This is what procedural fairness entails. See KUTI V BALOGUN (1978) 1 SC PG. 53, OGIAMIEN V. OGIAMIEN (1969) NMLR PG.248, ADENIJI 10

18 V. ADENIJI (1972) 4 SC PG.10, IRIRI V. ERHUELOBARA (1991) 2 NWLR (PT.173) PG.252. However, the Court in GBAGBARIGHA V TORUEMU [2013] 6 NWLR [PT.1350] PG The Supreme Court per Rhodes-Vivour JSC held and stated when there would be no need to call the parties to address the Court on an issue raised suo motu by the Court. (1) When the issue relates to the Court's own jurisdiction. (2) When both parties are not aware of or ignored a Statute which may have a bearing on the case or (3) When on the face of the Record, serious questions of fairness of the proceedings is in evidence. COMPTOIR COMMERCIAL & IND. S.P.R. LTD. V. O.G.S.W.C. (2002) 9 NWLR (PT.773) PG.629, KOLAWOLE V. A.G. OYO STATE (2006) 3 NWLR (PT.966) PG.50, EZEANYA V. OKEKE (1995) 4 NWLR (PT.388) PG.142, ACB PLC V. LOSADA (NIG.) LTD. (1995) 7 NWLR (PT.405) PG.26, OJUKWU V. YAR- ADUA (2009) 12 NWLR (PT.1154) PG.50, OYEWOLE V. AKANDE (2009) 15 NWLR (PT.1163) PG.119. As reiterated early, it is wrong for a Court to raise an issue suo motu and decide on it without inviting the parties to address it on same. However, the principle that the Court ought not to raise an issue 11

19 suo motu and decide upon it without hearing from the parties applies mainly to issues of facts. In some special circumstances like this, the Court can raise an issue of law or jurisdiction suo motu and decide upon it without hearing the parties before it. In the instant case it was obvious that the Appellant as Plaintiff in the Lower Court failed to initiate the suit properly. The signing of the Writ by an unknown person and the signing of the Statement of Claim by a law firm is against what the law envisaged in Section 2(1) and Section 24 of Legal Practitioner Act Be that as it may, the Originating Process i.e. the Writ of Summons and Statement of Claim in this suit are incompetent and incurably bad. They cannot be remedied. The proceedings in the Lower Court are null and void. The Lower Court had no jurisdiction to entertain the suit. It therefore follows that there is no judgment to appeal on. Where the Court has no jurisdiction to adjudicate on a case, the only thing left for the Court to do is to strike out the case. UMANNAH V. ATTAH (2006) 17 NWLR (PT.1009) PG This appeal is therefore struck out. I make no order as to 12

20 costs. OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in draft, the leading judgment delivered by my learned brother: Uzo I. Ndukwe - Anyanwu, JCA. I endorse, in toto, the reasoning and conclusion in it. I, too, strike out the appeal on ground of incompetence. I abide by the consequential orders decreed in the leading judgment. RIDWAN MAIWADA ABDULLAHI, J.C.A.:The draft of the lead judgment just delivered by my learned brother, UZO I. NDUKWE-ANYANWU, PJCA was served on me which I read with keen interest and entirely agreed with the reasoning and conclusion arrived at. It is not proper and convenient to place something on nothing with the expectation of it stay. There has to be proper foundation for what is to be built on it to stand. Jurisdiction is a fundamental issue and strong pillar for any matter brought before the Court of Law. Where the case is commenced with an incompetent Writ and Statement of Claim as in this instant matter, the Court is robbed of jurisdiction to entertain it. Anything done in furtherance of the proceedings without due consideration of the 13

21 incompetent Writ and Statement of Claim that initiated the action will be null, void and of no effect whatsoever. In view of the above, I too struck out this appeal as embodied in the lead judgment. No order as to costs. 14