(2018) LPELR-45327(CA)

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1 MV CORAL GEM & ORS v. OISEOMAYE & ORS CITATION: TIJJANI ABUBAKAR In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON WEDNESDAY, 13TH JUNE, 2018 Suit No: CA/L/492/2014 BIOBELE ABRAHAM GEORGEWILL Before Their Lordships: Justice, Court of Appeal Justice, Court of Appeal ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal Between 1. MV CORAL GEM 2. OWNERS OF MV CORAL GEM 3. THE CAPTAIN MV CORAL GEM 4. THE CHARTERERS MV CORAL GEM 5. PANALPINA (NIG) LTD And 1. ALEX OISEOMAYE 2. MR. SUNDAY OISEOMAYE 3. MADAM VERO OISEOMAYE 4. MISS TOPE OISEOMAYE 5. OJIAGWU OISEOMAYE 6. UWAIFO OISEOMAYE 7. EFE OISEOMAYE 8. JUNIOR OISEOMAYE 9. CHARLES OISEOMAYE 10. JAMES OISEOMAYE 11. FELIX OISEOMAYE 12. BOSE OISEOMAYE 13. PATIENCE OISEOMAYE 14. MRS. FUNMILAYO OISEOMAYE (FIRST) 15. MRS. FUNMILOLA OISEOMAYE (SECOND) 16. CHIEF OREVA OISEOMAYE 17. MRS. ELIZABETH OISEOMAYE 18. AKUDICKS STEVEDORING - Appellant(s) - Respondent(s)

2 RATIO DECIDENDI 1. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Proper person to sign a legal process/effect of legal documents signed/franked by a law firm "The issue central to this appeal is the writ of summons and statement of claim taken out by the Respondents in this appeal, found at pages 1-5 of the records of appeal. The contention of the Appellants is that the writ and statement of claim were signed by "Queen Ukadike & Associates" the processes are therefore incompetent and are incapable of activating the jurisdiction of the lower Court. The learned Counsel upon being served the application seeking to strike out the processes now filed application seeking to amend the said incompetent processes. The application was heard and granted by the lower Court. On the 4th day of October the following proceedings took place. "Ike Ukadike: For the Plaintiffs; Ukadike: We want to amend our pleadings; we have served the defendants. The application is dated 17/2/10 and supported by a 10 paragraph affidavit We have a written address. Court: Application granted as prayed.?the amended writ of summons and statement of claim are to be served on the Defendants within 7 days of today Case is adjourned to 25/11/10. SIGNED C.M.A. OLATOREGUN-ISHOLA JUDGE.'' The issue is just whether an incompetent originating process can be Amended. There is no doubt, the processes in contention were signed by "Queen Ukadike & Associates". All said, considering the infantry of decisions on this point, the law remains settled that the Court is only competent to adjudicate over a matter when all the conditions precedent are met, it is obvious where a condition precedent is not fulfilled, the Court will be divested of jurisdiction to adjudicate, an action commenced by an incompetent originating process cannot confer jurisdiction on the Court, only valid and competent originating process can confer jurisdiction on the Court. In the instant case, the Appellants raised objection timeously, this therefore means any proceedings so conducted on the incompetent processes would amount to waste of precious judicial time, See: EBN LTD Vs. HALILCO (NIG) LTD (2006) 7 NWLR (Pt. 980) 568.?I think the learned trial Judge was in grave error when he entertained and granted Respondents application for amendment when it was clear from the materials before the Court that the writ of summons and the statement of claim are incompetent. The Supreme Court of Nigeria in FBN Vs. MAIWADA (Supra), held that "...All processes must be signed in the manner as prescribed by the Act, that is to say by a person qualified as a legal Practitioner and enrolled in the Supreme Court of Nigeria. Any Court processes signed in the business names of the firm as in the case of JHC OKOLO SAN & CO., having been rendered incurably defective ab initio are liable to be struck out." I need to mention that I am aware of the recent decision of the Supreme Court of Nigeria in HERITAGE BANK LIMITED Vs BENTWOTH FINANCE (NIG) LTD SC 175/2005, delivered on the 23rd day of February I am of the view that this recent decision cannot come to the aid of the Respondents in the instant case. The sole issue for determination in this appeal is resolved in favour of the Appellant. The Ruling delivered by the lower Court on the 4th day of October, 2010 is hereby set aside, and suit No: FHC/L/CS/427/2001 is struck out."per ABUBAKAR, J.C.A. (Pp. 8-10, Paras. A-F) - read in context

3 2. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Effect of a court process signed in the name of a law firm "It is the law that an incompetent originating process cannot be amended. An incompetent process robs the Court of jurisdiction to adjudicate on the matter and an amendment cannot cure such defect. I am therefore in agreement with my learned brother that the lower Court was in grave error when he granted the Respondent's application for amendment of the originating process. The proper order to make is that of striking out of the writ of summons and statement of claim. See the case ofhamzat & ANOR v SANNI & ORS (2015) LPELR SC, where PETER-ODILI, JSC at pages at paras F - B stated 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..." See also the cases of OLAGBENRO & ORS V OLAYIWOLA & ORS (2014) LPELR CA; NIGERIAN ROMANIAN WOOD & ANOR v AKINGBULUGBE (2010) LPELR CA; UNION DICON SALT PLC v ABDULRASHEED NASIRU (2008) LPELR CA. I too find that the Appellant's appeal has merit and is hereby allowed. The Ruling delivered by the lower Court on 4th October, 2010 is accordingly set aside, and suit No: FHC/L/CS/427/2001 is struck out."per OBASEKI-ADEJUMO, J.C.A. (Pp , Paras. D-F) - read in context

4 TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): The Respondents in this appeal brought an action against the Appellants, claiming the sum of $100,000 damages for the death of their father, husband sibling and or benefactor. On the 6th day of July 2001, the Appellants as defendants filed their statement of defense, and thereafter brought an application seeking to dismiss the suit for reasons of incompetence of the originating processes. Upon receipt of the application to dismiss the suit, the Respondents now filed an application to amend the incompetent process, the lower Court entertained the application for amendment and went ahead to grant the application as prayed. On Monday the 4th day of October, 2010, the lower Court presided over by Olatoregun Ishola J, granted the application, the alleged incompetent originating process was therefore accordingly amended. The Ruling delivered by the lower Court therefore peeved the Appellants. This appeal is therefore against the Ruling delivered by Olatoregun Ishola J., in suit number 1

5 FHC/L/CS/427/2001 delivered on the 4th day of October The Appellant's notice of appeal is found at pages of the records of appeal containing sole ground of appeal, the ground reads as follows: "The learned trial Judge erred in law when he granted the application of the Respondents for an amendment of the writ of summons and statement of claim signed and endorsed in the firm's name of "Queen Ukadike & Associates" rather than the Counsel's name". PARTICULARS a. The Plaintiffs/Respondents commenced their action by writ of summons and statement of claim signed and endorsed in the firm's name of "Queen Ukadike & Associates" rather than the Counsels name. b. The Application of the Appellants for striking out the writ of summons and statement of claim of the Plaintiffs/Respondents was pending at the time the learned trial Judge granted the motion of the Respondents for amendment. Learned Counsel Chukwuka Ozuatalam filed the Appellant's brief of argument on the 12th day of August, 2014, the brief was deemed as properly filed 2

6 and served on the 25th day of March, The Respondents filed no brief of argument, this appeal was therefore heard on the Appellants brief alone. The Appellants through learned Counsel nominated sole issue for determination and the issue reads as follows: "Whether the writ of summons and the statement of claim by which suit No. FHC/L/427/2001 was commenced, not being signed by a legal practitioner are by virtue of that defect incapable of maintaining Suit No. FHC/L/CS/427/2007." Submitting on the sole issue for determination, learned Counsel for the Appellants said; the Respondents commenced their action against the Appellants by writ of summons and statement of claim dated 30th May, 2001, both the writ of summons and the statement of claim were signed by "Queen Ukadike & Associates" Plaintiffs solicitors, both processes were signed in the name of the law firm without indicating the actual name of Counsel who signed the processes, the Appellants brought application to dismiss the suit for incompetence, that while the application to dismiss the suit was pending, the Respondents brought an application to 3

7 amend the defective originating processes, that at the time the lower Court heard and determined the Respondents application for amended, the Appellants application seeking to dismiss the suit was still pending, learned Counsel therefore submitted that the law is fairly settled that defect in competence or jurisdiction is fatal and renders the entire proceedings a nullity no matter how well and brilliantly conducted the proceedings may appear to be. An action is incompetent if there is non-compliance with the law or rules of Court, or affects the foundation and fundamental of a suit, Counsel relied on the decision in SANUSI Vs. OSENI (1992) 4 NWLR (Pt. 237)557. Learned Counsel for the Appellants relied on the decisions in MADUKOLU & ORS Vs. NKEMDILIM (1962) 2 SCNLR 431, and MARK Vs. EKE (1997) 11 NWLR (Pt. 529) 501, to submit that, for a Court to be competent to adjudicate over a matter, parties must be properly constituted with regards to numbers and qualifications of members of the bench, and no member of the bench is disqualified for one reason or the other, the subject matter of the case falls 4

8 within 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 upon fulfilment of condition precedent to the exercise by the Court of its jurisdiction. Learned Counsel further submitted that any defect in competence is fatal and the proceedings are a nullity however well and brilliantly conducted. Addressing the Court on a very narrow compass, learned Counsel said the narrow issue is whether the failure to sign the originating processes by a named legal practitioner robs the Court of its jurisdiction, and whether a process that is incompetent may be cured by amendment. Learned Counsel relied on the decision in AARON OKARIKA & ORS Vs. ISAIAH SAMUEL & ANOR (2013) LPELR-1995 (SC), to submit that an initiating process must be valid to confer a Court with jurisdiction to adjudicate between the parties in litigation. Counsel further submitted that where an initiating process is faulty, irregular and invalid, it cannot confer jurisdiction on the Court. Again Counsel submitted that failure to commence an action with a valid 5

9 writ of summons and or statement of claim strikes at the root of the action since condition precedent has not been met to properly place the suit before the Court, he relied on the decisions in MOHAMMED MARI KIDA Vs. A. D. OGUNMOLA (2006) 13 NWLR (Pt. 997) 337, and BRAITHWAITE Vs. SKYE BANK PLC (2013) 5 NWLR (Pt.1346) 1 at 15. Learned Counsel for the Appellants submitted that originating processes must be filed in conformity with the provisions of the law, and originating processes shall be signed by either the parties; legal practitioner representing the parties or their agent, he relied on NIGERIAN ARMY Vs. SAMUEL (2013) 14 NWLR (1375) 466 at 482, OKAFOR Vs. NWEKE (2007) 10 NWLR (Pt. 1043) 521, FBN Vs. MAIWADA (2013) 5 NWLR (1348) 444 at 494, and ALAWIYE Vs. OGUNSANYA (2013) 5 NWLR (Pt. 1348) 570. Learned Counsel for the Appellants also referred to SLB CONSORTIUM Vs. NNPC (2011) 9 NWLR (Pt. 1252), to further submit that, Court processes may be signed by Counsel which may be any contraption, name of Counsel clearly written, who the Counsel represents, name and address of the legal firm. 6

10 Coming back to the instant appeal, learned Counsel for the Appellants said, the action at the Court below was commenced on behalf of the Respondents by a writ a summons and statement of claim signed by "Queen Ukadike & Associates" Solicitor, learned Counsel said the relevant process is found at pages 1-5 of the records of appeal, Counsel said "Queen Ukadike & Associates " is not a legal Practitioner within the meaning of section 24 of the Legal Practitioners Act Cap 111 LFN 2004, the action therefore failed to satisfy the mandatory prerequisite condition for activating the jurisdiction of the Court. Learned Counsel submitted that a law firm is not a legal person and is therefore incapable of practicing law as per the provisions of section 2(1) and 24 of the legal Practitioners Act, and cannot therefore be a legal Practitioner within the meaning and intendment of the legal Practitioners Act. Learned Counsel then contended that the Court processes signed by "Queen Ukadike & Associates" are incompetent, fundamentally defective and therefore legally non-existent, he therefore urged the Court to strike out the processes and allow the appeal. 7

11 The issue central to this appeal is the writ of summons and statement of claim taken out by the Respondents in this appeal, found at pages 1-5 of the records of appeal. The contention of the Appellants is that the writ and statement of claim were signed by "Queen Ukadike & Associates" the processes are therefore incompetent and are incapable of activating the jurisdiction of the lower Court. The learned Counsel upon being served the application seeking to strike out the processes now filed application seeking to amend the said incompetent processes. The application was heard and granted by the lower Court. On the 4th day of October the following proceedings took place. "Ike Ukadike: For the Plaintiffs; Ukadike: We want to amend our pleadings; we have served the defendants. The application is dated 17/2/10 and supported by a 10 paragraph affidavit We have a written address. Court: Application granted as prayed. The amended writ of summons and statement of claim are to be served on the Defendants within 7 days of today Case is adjourned to 25/11/10. 8

12 SIGNED C.M.A. OLATOREGUN-ISHOLA JUDGE.'' The issue is just whether an incompetent originating process can be Amended. There is no doubt, the processes in contention were signed by "Queen Ukadike & Associates". All said, considering the infantry of decisions on this point, the law remains settled that the Court is only competent to adjudicate over a matter when all the conditions precedent are met, it is obvious where a condition precedent is not fulfilled, the Court will be divested of jurisdiction to adjudicate, an action commenced by an incompetent originating process cannot confer jurisdiction on the Court, only valid and competent originating process can confer jurisdiction on the Court. In the instant case, the Appellants raised objection timeously, this therefore means any proceedings so conducted on the incompetent processes would amount to waste of precious judicial time, See: EBN LTD Vs. HALILCO (NIG) LTD (2006) 7 NWLR (Pt. 980) 568. I think the learned trial Judge was in grave error when he entertained and granted Respondents 9

13 application for amendment when it was clear from the materials before the Court that the writ of summons and the statement of claim are incompetent. The Supreme Court of Nigeria in FBN Vs. MAIWADA (Supra), held that "...All processes must be signed in the manner as prescribed by the Act, that is to say by a person qualified as a legal Practitioner and enrolled in the Supreme Court of Nigeria. Any Court processes signed in the business names of the firm as in the case of JHC OKOLO SAN & CO., having been rendered incurably defective ab initio are liable to be struck out." I need to mention that I am aware of the recent decision of the Supreme Court of Nigeria in HERITAGE BANK LIMITED Vs BENTWOTH FINANCE (NIG) LTD SC 175/2005, delivered on the 23rd day of February I am of the view that this recent decision cannot come to the aid of the Respondents in the instant case. The sole issue for determination in this appeal is resolved in favour of the Appellant. The Ruling delivered by the lower Court on the 4th day of October, 2010 is hereby set aside, and suit No: FHC/L/CS/427/2001 is struck out. 10

14 Parties in this appeal shall bear their respective costs. BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother TIJJANI ABUBAKAR, J.C.A., just delivered with which I agree and adopt as mine, I have nothing more to add. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I read in draft a copy of the leading judgment of my learned brother, TIJJANI ABUBAKAR, JCA just delivered. I am in agreement with the reasoning and conclusion therein. It is the law that an incompetent originating process cannot be amended. An incompetent process robs the Court of jurisdiction to adjudicate on the matter and an amendment cannot cure such defect. I am therefore in agreement with my learned brother that the lower Court was in grave error when he granted the Respondent's application for amendment of the originating process. 11

15 The proper order to make is that of striking out of the writ of summons and statement of claim. See the case ofhamzat & ANOR v SANNI & ORS (2015) LPELR SC, where PETER-ODILI, JSC at pages at paras F - B stated 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... See also the cases of OLAGBENRO & ORS V OLAYIWOLA & ORS (2014) LPELR CA; NIGERIAN ROMANIAN WOOD & ANOR v AKINGBULUGBE (2010) LPELR 9140 CA; UNION DICON SALT PLC v ABDULRASHEED NASIRU (2008) LPELR CA. I too find that the Appellant's appeal has merit and is hereby allowed. The Ruling delivered by the lower Court on 4th October, 2010 is accordingly set aside, and suit No: FHC/L/CS/427/2001 is struck out. 12

16 Appearances: Parties absent For Appellant(s) Parties absent For Respondent(s)

(2016) LPELR-40165(CA)

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