CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial — not part of the judgment as delivered
Facts of the Case
The Respondent commenced an action before the High Court of Plateau State via a Writ of Summons and an Affidavit in Support of the Claims, claiming the sum of N2,000,000.00 being the balance due on a road contract executed at NDLEA office at Laminga for the Appellant, plus interest. The Appellant filed a Notice of Intention to Defend. The suit was transferred to the General Cause List and heard without the filing of pleadings.
The Respondent’s case was that the Appellant subcontracted a road construction contract to him for N2.5 million, with additional work of N400,000, totalling N2.9 million, out of which only N900,000 was paid. The Appellant’s case was that the Respondent supplied sand, gravel and bitumen worth N900,000 and was fully paid. The trial Court granted the reliefs sought by the Respondent, ordering the Appellant to pay N2 million with interest. The Appellant’s appeal to the Court of Appeal was allowed in part; the Court set aside the pre-judgment interest but affirmed the principal sum. The Appellant further appealed to the Supreme Court.
Issues for Determination
ISSUE 1:
Having regard to the fact that the process commencing this action was not signed by a legal practitioner known to law, whether the whole proceeding, including the judgment of the lower Court, is not a nullity.
Decision / Holding
The Supreme Court allowed the appeal. The Court held that the Writ of Summons was signed by an unknown proxy with the prefix “f” (meaning “for”) before the name of a legal practitioner, making the identity of the signatory unknown and unascertainable. Consequently, the originating process was incompetent, the trial Court lacked jurisdiction, and the proceedings before the two lower Courts were null and void. The suit was struck out.
Ratio Decidendi / Principles
CIVIL PROCEDURE — Judgment and Order — Order of Court — Proper Order a Court Would Make Where It Lacks Jurisdiction to Entertain a Matter “With the finding that the suit before the trial Court was incompetent and deprived the Courts of the requisite jurisdiction to adjudicate over it, the appropriate and proper order to issue in respect thereof, is of striking out the suit.” Per Garba, JSC, in Ashaka v. Nwachukwu (2024) NLC-123-296-2013(SC) at p. 26; Paras C–D.
CIVIL PROCEDURE — Originating Process — Effect of an Incompetent Originating Process “Once an originating process is invalid and incompetent on any cognisable ground in law, it would deprive a Court of law of competence and jurisdiction to entertain and adjudicate over a matter.” Per Garba, JSC, in Ashaka v. Nwachukwu (2024) NLC-123-296-2013(SC) at p. 25; Paras C–D.
CIVIL PROCEDURE — Originating Process — Importance of an Originating Process; Effect of a Defective Originating Process “As the name suggests, an originating process or initiating process as it is sometimes called is the process that births legal proceedings such as a suit or an appeal. Being the process by which actions are commenced, its importance cannot be over-emphasised. In order for an action to be competent, the initiating process itself must not suffer from any fundamental defect, otherwise the action will be on quicksand. It is therefore not in doubt that the competence of an originating process goes to the root of the jurisdiction of the Court. … The incompetence of an originating process such as the Writ of Summons contaminates the entire proceedings, including processes filed and the judgment or decision rendered. Such an incompetent originating process is inchoate, lifeless and in the eyes of the law, non-existent.” Per Jauro, JSC, in Ashaka v. Nwachukwu (2024) NLC-123-296-2013(SC) at pp. 14–15; Paras B–B.
CIVIL PROCEDURE — Practice and Procedure — Issue of Jurisdiction — When Can the Issue of Jurisdiction Be Raised and Whether Court Can Raise Same Suo Motu “It is due to the prominent role of jurisdiction in the adjudicatory process that it is allowed to be raised at any time, even on a final appeal to this Court. … In fact, where the parties have for some reason refused or fail to raise the issue of jurisdiction, a Court is empowered to do so as the parties cannot waive the absence of jurisdiction or confer jurisdiction on a Court by agreement.” Per Jauro, JSC, in Ashaka v. Nwachukwu (2024) NLC-123-296-2013(SC) at p. 12; Paras C–F.
CIVIL PROCEDURE — Practice and Procedure — Signing of Court Process(es) — Effect of an Originating Process Signed by an Unidentifiable Person “From the manner in which the Writ of Summons was signed or executed, there is no doubt that it was signed by an unnamed and unknown person whose status as a legal practitioner is unknown and unascertainable. There is nothing on the face of the Writ or indeed any other document before the Court to show that it was signed by a legal practitioner. The LPA does not envisage the signing of Court processes through an unknown proxy. Court processes are either to be signed by parties or their legal practitioner and nothing more. Once it cannot be said who signed a Court process, it is automatically rendered incompetent. … In view of the above, there is no gainsaying that the Respondent’s Writ of Summons was irredeemably and fatally incompetent. It never activated the jurisdiction of the trial Court in the first place and in the eyes of the law, no proceedings were ever conducted before the trial Court.” Per Jauro, JSC, in Ashaka v. Nwachukwu (2024) NLC-123-296-2013(SC) at pp. 16–19; Paras D–E.
CIVIL PROCEDURE — Practice and Procedure — Signing of Court Process(es) — Position of the Law with Regard to the Signing of Legal Processes by a Legal Practitioner “One of the conditions for the validity of an originating process is that it must be signed by the Plaintiff where he represents himself or by a legal practitioner if the Plaintiff is represented by one. The Legal Practitioners Act (LPA) makes provisions for who can practice as a barrister and solicitor or, simply put, a legal practitioner in Nigeria. … From the foregoing provisions, it is abundantly clear that only a person whose name is on the roll of legal practitioners in Nigeria can practice as a barrister and solicitor and of course sign legal processes in that capacity on behalf of a litigant.” Per Jauro, JSC, in Ashaka v. Nwachukwu (2024) NLC-123-296-2013(SC) at pp. 15–16; Paras C–C.
CIVIL PROCEDURE — Practice and Procedure — Signing of Court Process(es) — Proper Person/Manner to Sign a Court Process; Effect of a Court Process Signed by an Unknown Person “The law is now beyond argument, for being firmly established by endless pronouncements of this Court over the years, that an originating process used to initiate a legal action or an appeal, as the case may be, which invokes the requisite jurisdiction of the Court over the action or appeal, must be signed either by the party or by a legal practitioner, as defined under the Legal Practitioners Act, if represented, in order for it to be valid and competent in Law to properly ignite the jurisdiction of the Court. The law remains that once the person who signs such an originating process either as a party or legal practitioner, cannot be ascertained or identified on the process, such a process would be invalid and incompetent in law to render it incapable of invoking the requisite jurisdiction of the Court and vesting it with the judicial power and authority to entertain and adjudicate over the action.” Per Garba, JSC, in Ashaka v. Nwachukwu (2024) NLC-123-296-2013(SC) at pp. 24–25; Paras C–A.
CIVIL PROCEDURE — Practice and Procedure — Undefended List Procedure — Whether the Motion Ex Parte for the Issuance of a Writ Is the Originating Process Under the Undefended List Procedure “At the time when the action before the trial Court was instituted, Order 23 Rule 1 of the Plateau State High Court (Civil Procedure) Rules, 1987 was the relevant enabling provision for the Undefended List Procedure. … From the above provision, it is clear that the application referred to therein is for the issuance of a Writ to be placed under the Undefended List. The Writ of Summons itself is the originating process, not the motion ex parte. Furthermore, it is trite that actions are, as a general rule, commenced by Writ of Summons, Originating Summons, Originating Motion or Petition. A motion ex parte is not a valid mode for the commencement of action.” Per Jauro, JSC, in Ashaka v. Nwachukwu (2024) NLC-123-296-2013(SC) at pp. 9–10; Paras C–D.
COURT — Jurisdiction — Condition Precedent to Assumption of Jurisdiction by Court “In the locus classicus of Madukolu v. Nkemdilim 1962 NSCC 374, it was decided that in order for a Court to have jurisdiction to entertain an action, the following must be present: a. The Court must be properly constituted as regard numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; b. The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction; and c. The case comes before the Court initiated by due process of the law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. All these preconditions must be present and the absence of any one of them will deprive the Court of the competence to entertain the suit.” Per Jauro, JSC, in Ashaka v. Nwachukwu (2024) NLC-123-296-2013(SC) at pp. 12–14; Paras F–A.
COURT — Jurisdiction — Importance of Jurisdiction and Effect Where a Court Lacks Jurisdiction Over a Matter; Duty of Court When an Issue of Jurisdiction Is Raised “Jurisdiction is the power or competence of a Court to entertain a matter or adjudicate over a dispute submitted to it. Jurisdiction is to legal proceedings what oxygen is to human beings for without jurisdiction, no proceedings can be conducted. Jurisdiction is of fundamental importance in our jurisprudence and a Court must treat it with all sense of importance. … Any proceedings conducted in the absence of jurisdiction will amount to a nullity, an exercise in futility and a wasteful dissipation of energy.” Per Jauro, JSC, in Ashaka v. Nwachukwu (2024) NLC-123-296-2013(SC) at pp. 11–12; Paras C–B.
COURT — Raising Issue(s) Suo Motu — Whether an Appellate Court Can Raise the Issue of Jurisdiction Suo Motu and Determine Same Without Hearing the Parties “The argument as to the exact mode by which the suit before the trial Court was commenced is immaterial. The issue is one which affects the jurisdiction of the Court and the Court is entitled to raise and decide the same if it is noticed from a consideration of the record of appeal.” Per Jauro, JSC, in Ashaka v. Nwachukwu (2024) NLC-123-296-2013(SC) at pp. 10–11; Paras F–B.
JURISDICTION — Appellate Jurisdiction — Whether an Appellate Court Can Exercise Jurisdiction Over a Matter Where the Lower Court(s) Lacks Jurisdiction “The lack or want of jurisdiction on the part of the trial Court has, by law, fatally infested the competence and jurisdiction of both the Court below and this Court, as stated and re-stated in several decisions.” Per Garba, JSC, in Ashaka v. Nwachukwu (2024) NLC-123-296-2013(SC) at pp. 25–26; Paras E–B.
Obiter Dicta
Orders of Court
Appeal allowed. The Writ of Summons by which the Respondent’s action was instituted was struck out as incompetent. The proceedings before the trial Court and the Court of Appeal, including the judgments of both Courts, were set aside as null and void. The suit was struck out. Parties to bear their respective costs.
APPEARANCES
Counsel for the Appellant(s)
Dr. M. Y. Danung, Esq., with him, F. Z. Kaatpo, Esq.
Counsel for the Respondent(s)
O. A. Alao, Esq., with him, S. B. Olarinde, Esq.
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
— (DELIVERED BY ADAMU JAURO, J.S.C. (DELIVERING THE LEADING JUDGMENT):)
This is an appeal against the judgment of the Court of Appeal, Jos Division which allowed Appellant’s appeal in part and partially affirmed the judgment of the Plateau State High Court of Justice, which had granted all the reliefs sought by the Respondent as Plaintiff.
The Respondent commenced the action leading to this appeal before the High Court of Plateau State via a Writ of Summons and an Affidavit in Support of the Claims. He filed a Motion ex parte for the suit to be placed under the Undefended List. The following were the claims endorsed on the Writ:
“The Plaintiff claims from the Defendant the sum of N2,000,000.00 being the balance due to the Plaintiff from the Defendant on a road contract which the Plaintiff executed at NDLEA office at Laminga for the Defendant and which sum Defendant despite repeated demands has failed to pay.
And Plaintiff claims interest at the rate of 25% from the 20th July, 2001 until judgment and thereafter at 10% per annum until the entire sum is liquidated.”
The Appellant responded by filing a Notice of Intention to Defend and an Affidavit in
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support thereof. When the matter came up for hearing, counsel for the Respondent consented that the matter be transferred to the General Cause List and the suit was so transferred. It was however heard without the filing of pleadings pursuant to Order 23 Rule 3 of the Rules of Court. At the hearing of the suit, the Respondent called four witnesses as PW1 – PW4, while the Appellant testified alone for himself as DW1.
The case of the Respondent as Plaintiff, led through his witnesses, was that the Appellant was awarded a contract by the Plateau State Government for the construction of a road at NDLEA, Jos which he subcontracted to the Respondent for the sum of N2.5 million. The Appellant later gave additional work to the Respondent for the sum of N400,000 such that the total bill went up to N2.9 million, out of which only N900,000.00 was paid to him, leaving the sum of N2 million outstanding. It was also stated that the Respondent had taken a loan of N1 million from Sawlid Investment Ltd at an interest rate of 24% per annum to finance the project.
On the part of the Appellant, his case was that he had a road contract at Busa Buji Street, Jos and
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at NDLEA in Jos, so the Respondent and Sani (PW3) approached him that they had gravel and bitumen to supply to him. He stated that Respondent supplied sand, gravel and bitumen worth N900,000.00 to him and he had fully paid him for the supplies.
At the close of trial and after the addresses of counsel, the trial Court delivered its judgment wherein it granted the reliefs sought by the Respondent. The Court ordered the Appellant to pay to the Respondent, the sum of N2 million and awarded interest at the rate of 22% per annum from July 2001 till the date of the judgment and post-judgment interest at the rate of 10% per annum. The Appellant’s appeal to the Court below was allowed in part. The Court held that there was no basis for the award of 22% pre-judgment interest and set aside the same.
The Appellant was discontented by the judgment of the lower Court, hence this appeal. The Notice of Appeal by which the appeal was commenced has been amended pursuant to an order of this Court.
The appeal was heard on 12th December, 2023. At the hearing of the appeal, M. Y. Danung, Esq for the Appellant adopted the Appellant’s amended brief and reply brief and
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urged the Court to allow the appeal. In urging the Court to dismiss the appeal, learned counsel O.A. Alao, Esq adopted the Respondent’s amended brief settled by Edwin O. Okoro, Esq.
Appellant’s counsel submitted the following issues for determination in his brief of argument, which issues were adopted by learned Respondent’s counsel:
“i. Having regard to the fact that the process commencing this action was not signed by a legal practitioner known to law, whether the whole proceeding, including the judgment of the lower Court, is not a nullity (Grounds 7 and 8).
ii. Whether the lower Court was right when it affirmed the decision of the trial Court wherein it held that there were no material contradictions in the Respondent’s case to warrant a dismissal of same (Ground 11).
iii. Whether the lower Court was right when it upheld the decision of the trial Court that Exhibit “A” constituted a binding contract between the Appellant and the Respondent (Ground 3).
iv. Whether the lower Court was right when it held that the trial Court properly evaluated the evidence before it in arriving at the conclusion that there was a
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binding contract between the Appellant and the Respondent (Grounds 9 and 10).
v. Whether the lower Court was right when it went outside exhibit “A” by relying on the conduct of the parties and other surrounding circumstances as indicatives of a binding contract between the parties (Ground 1).
vi. Whether the lower Court was right when it affirmed the decision of the trial Court that the failure of the Appellant to call Engr. Gyang as a witness was fatal to the Appellant’s case (Ground 4).”
These issues are apt for the determination of the appeal. Issue one has jurisdictional implications, hence I will deal with the issue first and move on to the other issues if need be.
ISSUE ONE
The Appellant’s counsel submitted that the competence of an originating process is one of the determinants of a Court’s jurisdiction. He relied on the cases of OKARIKA V. SAMUEL (2013) 7 NWLR (PT. 1352) 19; MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR (PT. 4) 587. It was submitted that the action was commenced by a Motion ex parte to place the suit under the Undefended List, which was not signed by a legal practitioner known to law, same having been signed by
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an unnamed person for (written as “f”) another person. Relying on S.L.B. CONSORTIUM V. N.N.P.C. (2011) 9 NWLR (PT. 1252) 317; NIGERIAN ARMY V. SAMUEL (2013) 14 NWLR (PT. 1375) 466, it was submitted that the motion paper having been signed by an unknown person for a legal practitioner, was in the eyes of the law not signed at all and thus incapable of invoking the jurisdiction of the trial Court.
Learned counsel further submitted that the consequence of the manner in which the originating process was signed is that same is fundamentally defective and deprived the Court of jurisdiction to entertain the matter. He cited in support the cases of BALA V. DIKKO (2013) 4 NWLR (PT. 1343) 52; OKETADE V. ADEWUNMI (2010) 8 NWLR (PT. 1165) 63; F.B.N. V. MAIWADA (2013) 5 NWLR (PT. 1348) 444; OKARIKA V. SAMUEL (supra). It was submitted that the Respondent’s suit before the trial Court, the appeal to the lower Court and the decision reached therein are null and void. The cases of MIN., W.T. ADAMAWA STATE V. YAKUBU (2013) 6 NWLR (PT. 1351) 481; IBRAHIM V. MUHAMMADU (1998) 4 NWLR (PT. 545) 176 were relied on.
Concluding his submission on the issue, counsel urged us
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to resolve the issue against the Respondent and in favour of the Appellant, set aside the judgments of the two lower Courts and strike out the suit in its entirety.
In response, the Respondent’s counsel pointed out that the Appellant’s arguments on the issue of competence of the originating process relate to a motion ex parte. He argued that a motion ex parte cannot be an originating process. He placed reliance on OKARIKA V. SAMUEL (supra), Order 1 Rule 1 of the Plateau State High Court (Civil Procedure) Rules, 1987 and Civil Procedure in Nigeria by Fidelis Nwadialo, page 211. It was submitted that the cases relied on by the Appellant are not applicable to this appeal as the common issue therein relates to the competence of originating processes such as Writ of Summons, Originating Motion, Originating Summons, Petition and Notice of Appeal.
Learned counsel argued that the motion ex parte was only filed to apply for the suit to be placed under the undefended list. OBITUDE V. ONYESOM COMM. BANK LTD (2014) 9 NWLR (PT. 1412) 352 was cited in support. It was submitted that the motion cannot be said to be the originating process, thus any defect thereon
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cannot affect the jurisdiction of the trial Court to entertain the suit. He urged the Court to resolve the issue against the Appellant.
In the Appellant’s reply brief, it was submitted that the Respondent’s counsel ignored the argument on the validity or otherwise of the originating process, but only argued that the motion ex parte was not the originating process. He stated that the Respondent’s counsel deliberately ignored the fact that the Writ of Summons at pages 3 – 4 of the record of appeal was equally signed in the same way as the motion ex parte. Counsel cited the case of NWANKWO V. YAR’ADUA (2010) 12 NWLR (PT. 1209) 518 to submit that the failure to respond to the Appellant’s argument amounts to concession that indeed the originating process is incompetent, thereby robbing the trial Court and the Court below of the jurisdiction to entertain the suit and appeal before them respectively.
RESOLUTION
The Appellant complained that the originating process by which the Respondent instituted his action before the trial Court was incompetent and therefore incapable of triggering the jurisdiction of the trial Court. The Respondent’s counsel did
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not dispute the position of the law that the incompetence of an originating process is fatal to the jurisdiction of the Court, but stated that the Appellant was wrong to refer to the motion ex parte to place the suit under the Undefended List, rather than the Writ of Summons as the originating process.
At the time when the action before the trial Court was instituted, Order 23 Rule 1 of the Plateau State High Court (Civil Procedure) Rules, 1987 was the relevant enabling provision for the Undefended List Procedure. The Rule is reproduced below:
“Whenever an application is made to a Court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand or any other claim and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the
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circumstance of the particular case.”
From the above provision, it is clear that the application referred to therein is for the issuance of a Writ to be placed under the Undefended List. The Writ of Summons itself is the originating process, not the motion ex parte. Furthermore, it is trite that actions are, as a general rule, commenced by Writ of Summons, Originating Summons, Originating Motion or Petition. A motion ex parte is not a valid mode for the commencement of action under the Plateau State High Court (Civil Procedure) Rules, 1987 and under most rules of Court. This is reinforced by Order 1 Rule 1 of the said Rules which is set out below:
“Subject to the provisions of any Act, civil proceedings may be begun by writ, originating summons, originating motion or petition, as hereinafter provided.”
Similar provisions are contained in most High Court Rules across the country.
In any event, the Appellant has stated in his reply brief that the Writ of Summons was indeed the originating process by which the Respondent’s suit before the trial Court was initiated.
Moreover, the argument as to the exact mode by which the suit before the
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trial Court was commenced is immaterial. The issue is one which affects the jurisdiction of the Court and the Court is entitled to raise and decide the same if it is noticed from a consideration of the record of appeal. See OWNERS OF THE MT “MARIGOLD” V. NNPC & ANOR (2022) LPELR- 56858(SC). Thus, what is important is whether or not the originating process, the Writ of Summons, was executed as dictated by law and the implication thereof.
As I have stated earlier, the issue under consideration borders on the jurisdiction of the Court. Jurisdiction is the power or competence of a Court to entertain a matter or adjudicate over a dispute submitted to it. Jurisdiction is to legal proceedings what oxygen is to human beings for without jurisdiction, no proceedings can be conducted. Jurisdiction is of fundamental importance in our jurisprudence and a Court must treat it with all sense of importance. It must not be treated lightly as its absence will render null, void and of no effect, every step taken in the proceedings. Any proceedings conducted in the absence of jurisdiction will amount to a nullity, an exercise in futility and a wasteful dissipation of energy.
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Hence, in order to avoid wasting precious judicial time, a Court must determine whether or not it has jurisdiction immediately the issue arises. AKERE & ORS V. GOV OF OYO STATE & ORS (2012) LPELR-7806 (SC); DINGYADI & ANOR V. INEC & ORS (2010) LPELR – 40142 (SC); NDIC V. CBN & ANOR (2002) LPELR – 2000 (SC); SHELIM & ANOR V. GOBANG (2009) LPELR – 3043 (SC); SHITTA-BEY V. AG FEDERATION & ANOR (1998) LPELR-3055 (SC).
It is due to the prominent role of jurisdiction in the adjudicatory process that it is allowed to be raised at any time, even on a final appeal to this Court, as the Appellant has done herein. In fact, where the parties have for some reason refused or fail to raise the issue of jurisdiction, a Court is empowered to do so as the parties cannot waive the absence of jurisdiction or confer jurisdiction on a Court by agreement. See STANBIC IBTC BANK PLC V. LONGTERM GLOBAL CAPITAL LTD & ORS (2021) LPELR – 56661 (SC); CONTROLLER GENERAL OF PRISONS & ORS V. ELEMA & ANOR (2021) LPELR-56219(SC); SOCIO-POLITICAL RESEARCH DEVELOPMENT V. MINISTRY OF FCT & ORS (2018) LPELR-45708 (SC).
In the locus classicus
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of MADUKOLU V. NKEMDILIM 1962 NSCC 374, it was decided that in order for a Court to have jurisdiction to entertain an action, the following must be present:
a. The Court must be properly constituted as regard numbers and qualifications of members of the bench, and no member is disqualified for one reason or another;
b. The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction; and
c. The case comes before the Court initiated by due process of the law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
See also NGERE V. OKURUKET XIV (2023) 14 NWLR (PT. 1904) 361; ADEYEMI V. ACHIMU NDIC (2023) 1 NWLR (PT. 1866) 583; OKONKWO V. F.R.N. (2022) 8 NWLR (PT. 1833) 427; NWOBIKE V. F.R.N. (2022) 6 NWLR (PT. 1826) 293; NWORKA V. ONONEZE-MADU (2019) 7 NWLR (PT. 1672) 422; NWACHUKWU V. NWACHUKWU (2018) 17 NWLR (PT. 1648) 357; D.E.N.R. LTD. V. TRANS INTL BANK LTD. (2008) 18 NWLR (PT. 1119) 388. All these preconditions must be present and the absence of any one of them will deprive the Court of the competence to
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entertain the suit.
The Appellant’s grouse against the jurisdiction of the trial and the lower Court is that the originating process (Writ of Summons) was not signed by a legal practitioner known to law. As the name suggests, an originating process or initiating process as it is sometimes called is the process that births legal proceedings such as a suit or an appeal. Being the process by which actions are commenced, its importance cannot be over-emphasised. In order for an action to be competent, the initiating process itself must not suffer from any fundamental defect, otherwise the action will be on quicksand. It is therefore not in doubt that the competence of an originating process goes to the root of the jurisdiction of the Court. Given the relationship between an originating process and jurisdiction, a competent originating process is crucial in activating the jurisdiction of Court. On the other hand, the incompetence of an originating process such as the Writ of Summons contaminates the entire proceedings, including processes filed and the judgment or decision rendered. Such an incompetent originating process is inchoate, lifeless and in the eyes of
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the law, non-existent. It can therefore not give life to the proceedings before the Court, thereby rendering every step taken null and void ab initio. See AKINGBULUGBE V. NIGERIAN ROMANIAN WOOD INDUSTRIES LTD (2023) LPELR- 59948 (SC); ANI & ORS V. EFFIOK & ORS (2023) LPELR – 59783 (SC); KENTE V. ISHAKU & ORS (2017) LPELR – 42077 (SC); OKPE V. FAN MILK PLC & ANOR (2016) LPELR – 42562 (SC); BRAITHWAITE V. SKYE BANK PLC (2012) LPELR – 15532 (SC).
One of the conditions for the validity of an originating process is that it must be signed by the Plaintiff where he represents himself or by a legal practitioner if the Plaintiff is represented by one. The Legal Practitioners Act (LPA) makes provisions for who can practice as a barrister and solicitor or, simply put, a legal practitioner in Nigeria. At this juncture, it is important that we have recourse to Sections 2(1) and 24 of the LPA, which are set out below:
Section 2(1):
2. (1) Subject to the provisions of this Act, a person shall be entitled to practise as a barrister and solicitor if, and only if, his name is on the roll.”
Section 24:
“In this Act, unless the
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context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say-
“Legal practitioner” means a person entitled in accordance with the provisions of this Act to practise as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.”
From the foregoing provisions, it is abundantly clear that only a person whose name is on the roll of legal practitioners in Nigeria can practice as a barrister and solicitor and of course sign legal processes in that capacity on behalf of a litigant.
The next consideration was whether the allegation of the Appellant that the Respondent’s Writ of Summons filed before the trial Court was not signed by a legal practitioner whose name is on the roll. In the instant case, the Writ of Summons was signed in the same way the motion ex parte to place the suit under the Undefended List was signed. It was signed thus:
“f “signature impression/mark”
Oba Madaubuchi, Esq
4 New Zaria Terrace
Jos.”
When the letter “f” is written before appending the signature on a
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document, the letter represents “for”, showing that the signatory signed for someone else, who is unable to sign the document.
From the manner in which the Writ of Summons was signed or executed, there is no doubt that it was signed by an unnamed and unknown person whose status as a legal practitioner is unknown and unascertainable. There is nothing on the face of the Writ or indeed any other document before the Court to show that it was signed by a legal practitioner. The LPA does not envisage the signing of Court processes through an unknown proxy. Court processes are either to be signed by parties or their legal practitioner and nothing more. Once it cannot be said who signed a Court process, it is automatically rendered incompetent. See OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 521; AKINGBULUGBE V. NIGERIAN ROMANIAN WOOD INDUSTRIES LTD (supra); SOLUMADE V. KUTI (2022) 1 NWLR (PT. 1810) 31; NETWORK SECURITIES LTD V. DAHIRU & ORS (2022) LPELR – 57835 (SC); ALIKOR V. OGWO (2019) 15 NWLR (PT. 1695) 331; N.L.C. V. F.G.N. (2018) 7 NWLR (PTE 1619) 561; OKARIKA V. SAMUEL (2013) 7 NWLR (PT. 1352) 19; SLB CONSORTIUM LTD. V. N.N.P.C. (2011) 9 NWLR (PT.
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1252) 317.
The originating processes in VF WORLDWIDE HOLDINGS LTD. V. DANA SERV. LTD. (2023) 15 NWLR (PT. 1908) 573 was similarly signed in a manner similar to how the Writ in this case was signed. This Court upheld the decision of the Court of Appeal declaring the originating processes as incompetent. At page 600, paras. A – E of the report, this Court expatiated thus:
“From the above, it is without a doubt that the name and identity of the signatory to the appellant’s originating process is an unknown person.
This is an anomaly which the law treats as fundamental since the requirement of the law is that a Court process must be signed either by a party or his legal practitioner. None of the aforesaid persons signed the originating process of the appellant in this case, rather the process was signed for Prof. Yemi Osinbajo, SAN by an unnamed proxy.
This Court is not in a position to speculate on the identity of this unknown proxy, and evidence cannot be taken to resolve his identity. The decision of this Court on the incompetence of Court process, not properly signed and filed, remains consistent and unequivocal. See Aya v. Nkanu (2022)
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11 NWLR (Pt. 1840) 157; Skypower Exp Airways v. U.B.A. Plc (2022) 6 NWLR (Pt. 1826) 203; Ajibode v. Gbadamosi (2021) 7 NWLR (Pt. 1776) 475; R. A. Oliyide & Sons v. O.A.U., Ile-Ife (2018) 8 NWLR (Pt. 1662) 546; Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521.
I agree with the decision of the Court below that the originating process filed by the appellant before the trial Court is incompetent.”
In view of the above, there is no gainsaying that the Respondent’s Writ of Summons was irredeemably and fatally incompetent. It never activated the jurisdiction of the trial Court in the first place and in the eyes of the law, no proceedings were ever conducted before the trial Court. Every step taken before the trial Court and the lower Court was predicated on the incompetent Writ of Summons. It is synonymous to placing something on nothing, it is bound to fall apart like a deck of cards.
It is worth mentioning that aside from the fact that the signing of a Court process by a person other than a party or a legal practitioner recognized to practice law in Nigeria offends the provisions of the Legal Practitioners Act, a subsisting Act of parliament in
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force, it is of utmost importance that such improperly signed processes be rejected and struck out in order to weed out quacks disguising as legal practitioners.
Flowing from the foregoing, issue one is resolved in favour of the Appellant and against the Respondent. The issue suffices for the determination of the appeal.
The culmination of all I have said is that there is merit in the appeal and the same is hereby allowed. The Writ of Summons by which the Respondent’s action before the trial Court was instituted is incompetent and same is hereby struck out. The incompetence of the Writ of Summons has sullied the suit and the proceedings before the trial Court and the lower Court, including the judgments of both Courts. The suit having not been commenced by due process of law, the trial Court lacked jurisdiction to adjudicate thereon and same is hereby struck out. The proceedings before the trial Court and the lower Court, including the judgments of both Courts are also contaminated and rendered null and void and they are hereby set aside. Parties shall bear their respective costs.
Appeal allowed.
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Concurring Opinion(s)
— KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.:
The effect of an originating process signed by a person other than a party or a legal practitioner recognised to practice law in Nigeria by virtue of the provisions of Sections 2(1) and 24 of the Legal Practitioners’ Act, has been firmly settled to finality by this Court in a plethora of authorities. It is a fundamental defect that robs the Court of jurisdiction to entertain the suit. See Okafor vs Nweke (2007) 10 NWLR (Pt. 1043) 521; SLB Consortium Ltd. vs N.N.P.C (2011) 9 NWLR (Pt. 1252) 317; Al-Masmoon Security Ltd Vs Pipelines Marketing Products Co. Ltd. (2022) LPELR – 56859 (SC) 10 – 12 D – A; Onyekwuluje vs Animashaun (2019) 4 NWLR (Pt. 1662) 242 @ 261 D; VF Worldwide Holdings Ltd Vs Dana Services Ltd. (2023) 15 NWLR (Pt. 1908) 573; SPDC v. Sam Royal Hotel Nig. Ltd. (2016) 8 NWLR (Pt. 1514) 318.
In Al-Masmoon Security Ltd Vs Pipelines Marketing Products Co. Ltd. (supra), the Notice of Appeal was signed by an unknown proxy of the named legal practitioner, Emmanuel Esene of Emmanuel Esene & Co. The process was signed with the prefix “pp” before the named Emmanuel Esene. An attempt was made in the reply brief, in reaction to the preliminary
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objection to the competence of the notice of appeal, to contend that the prefix “pp” means “Principal Partner.” This contention was rejected having regard to the known dictionary meaning of “pp” which is “per pro” meaning “by proxy.” Similarly, the prefix “f” before a name is universally known to mean “for” or “on behalf of.”
Reference was made to the decision of this Court in SLB Consortium Ltd Vs NNPC (supra) where it was held, inter alia at 337 – 338 G – A per Rhodes-Vivour, JSC:
“Once it cannot be said who signed a process, it is incurably bad…
In this suit the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the law clearly spelt out in Reg. Trustees of Apostolic Church, Lagos Vs R. Akindele (supra) [(1967) 7 NWLR 263] and Okafor Vs Nweke (supra).
In Onyekwuluje Vs Animashaun (supra) at 261 D, this Court held thus:
“The cases of Okafor Vs Nweke (supra); Oketade Vs Adewunmi (supra) [(2010) 8 NWLR (Pt. 1195) 63] above have settled the matter with satisfactory finality, to the effect that the proper procedure for signing on behalf of somebody
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else is to disclose the name and identity of the person who signed and for whom it was signed if signed on behalf of another person in chambers. The two names must be disclosed.”
In the instant case, there is a contraption on the Writ of Summons above the name “Oba Maduabuchi Esq” with the prefix “f” preceding the name. It means that the identity of the person who signed on behalf of Oba Maduabuchi Esq. is unknown and it is therefore impossible to determine whether the signature belongs to a person recognised to practice law in Nigeria or not.
In light of all the authorities referred to above, the originating process is no doubt fundamentally defective. The trial Court therefore lacked jurisdiction to entertain the suit. The want of jurisdiction by the trial Court has equally deprived the lower Court of jurisdiction to entertain the appeal arising therefrom.
In the circumstances, I agree entirely with my learned brother, Adamu Jauro, JSC, that the proceedings before the two lower Courts are rendered null and void and are accordingly set aside. The appeal therefore succeeds. It is hereby allowed.
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Appeal allowed.
— MOHAMMED LAWAL GARBA, J.S.C.:
My learned brother Adamu Jauro, JSC has proficiently considered and resolved the crucial issue of the competence of the originating process/es by which the action was instituted by the Respondent at the trial Court against the Appellant.
The law is now beyond argument, for being firmly established by endless pronouncements of this Court over the years, that an originating process used to initiate a legal action or an appeal, as the case may be, which invokes the requisite jurisdiction of the Court over the action or appeal, must be signed either by the party or by a legal practitioner, as defined under the Legal Practitioners Act, if represented, in order for it to be valid and competent in Law to properly ignite the jurisdiction of the Court. The law remains that once the person who signs such an originating process either as a party or legal practitioner, cannot be ascertained or identified on the process, such a process would be invalid and incompetent in law to render it incapable of invoking the requisite jurisdiction of the Court and vesting it with the judicial power and authority to entertain and
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adjudicate over the action, Onyekwuluje v. Animashaun (2019) 4 NWLR (Pt. 1662) 252 (SC), NNPC v. Roven Shipping Ltd. (2019) 9 NWLR (Pt. 1676) 67 (SC), Ogunseinde v. SGB Ltd (2018) 4 NWLR (Pt. 1624) 230 (SC) Tanimu v. Rabi’u (2018) 4 NWLR (Pt. 610) 505 (SC).
The authorities cited in the lead judgment on the principle of law, suffice for the purpose of determination and disposal of the appeal.
Once an originating process is invalid and incompetent on any cognisable ground in law, it would deprive a Court of law of competence and jurisdiction to entertain and adjudicate over a matter, Edegbe Ltd. v. Okomobor (2003) 1 FWLR 9Pt. 188) 512, Yakubu v. F. M. B. N. Ltd. (2015) 11 NWLR (Pt. 1470) 232, Okpe v. Fan Milk, Plc. (2017) 2 NWLR (Pt. 1549) 282 (SC).
In the premises of the law and for reasons set out in the lead judgment, I totally agree that both the ex parte motion and the writ of summons used to initiate or commence the Respondent’s Suit before the trial Court were incompetent originating processes which deprived that Court of the requisite competence and jurisdiction to adjudicate over the action. The lack or want of jurisdiction on the part
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of the trial Court has, by law, fatally infested the competence and jurisdiction of both the Court below and this Court, as stated and re-stated in several decisions; including Lakanmi v. Adene (2003) 10 NWLR (Pt. 828) 353 at 367, Tsokwa Motors Ltd. v. UBA, Plc (2008) 2 NWLR (Pt. 1071) 347 at 377 (SC), Nwoko v. Waoboshi (2020) 13 NWLR 9Pt. 1742) 395 at 400 (SC), Oni v. Cadbury Nig. Plc. (2016) LPELR-26061 (SC), Ebebi v. Esemokumokumor (2022) 1 NWLR (Pt. 1812) 463 (SC), Aliyu v. APC (2022) LPELR-57345 (SC).
With the finding that the suit before the trial Court was incompetent and deprived the Courts of the requisite jurisdiction to adjudicate over it, the appropriate and proper order to issue in respect thereof, is of striking out the suit. See Obi v. INEC (2007) 7 SC, 268 Oloriode v. Oyebi (1984) SCNR, 390, Adesokan v. Adetunji (1994) 5 NWLR (Pt. 348) 540, Gombe v. P.W. Nig. (1995) 6 NWLR (Pt. 402) 402.
I join the lead judgment in striking out the suit filed at the trial Court on ground of incompetence and I abide by the order on costs.
— HELEN MORONKEJI OGUNWUMIJU, J.S.C.:
I have read before now the erudite judgment just delivered by my learned
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brother ADAMU JAURO, JSC. I am of the view, while I agree with his lordship’s reasoning and conclusion that the appeal should be allowed being meritorious, the issue of jurisdiction of the trial Court raised in this appeal had been settled since 2007 in this Court and I would not rehash it ad nauseum in this appeal. I allow the appeal for the reasons given copiously in the lead judgment. I abide by the order as to costs.
Appeal Allowed.
— TIJJANI ABUBAKAR, J.S.C.:
I had the advantage of reading before now the comprehensive leading Judgment of my learned brother JAURO, JSC. I endorse the entire reasoning and conclusion and adopt the Judgment as my own.
I have nothing extra to add.
Dissenting Opinion(s)
None
REFERENCES
Research enhancement — dynamically linked
Referenced Judgments
Adesokan v. Adetunji (1994) 5 NWLR (Pt. 348) 540 — cited at p. 26
Adeyemi v. Achimu NDIC (2023) 1 NWLR (Pt. 1866) 583 — cited at p. 13
Ajibode v. Gbadamosi (2021) 7 NWLR (Pt. 1776) 475 — cited at p. 19
Akere & Ors v. Gov of Oyo State & Ors (2012) LPELR-7806 (SC) — cited at p. 12
Akingbulugbe v. Nigerian Romanian Wood Industries Ltd (2023) LPELR-59948 (SC) — cited at pp. 15, 17
Al-Masmoon Security Ltd v. Pipelines Marketing Products Co. Ltd. (2022) LPELR-56859 (SC) — cited at p. 21
Alikor v. Ogwo (2019) 15 NWLR (Pt. 1695) 331 — cited at p. 17
Aliyu v. APC (2022) LPELR-57345 (SC) — cited at p. 26
Ani & Ors v. Effiok & Ors (2023) LPELR-59783 (SC) — cited at p. 15
Aya v. Nkanu (2022) 11 NWLR (Pt. 1840) 157 — cited at p. 18
Bala v. Dikko (2013) 4 NWLR (Pt. 1343) 52 — cited at p. 6
Braithwaite v. Skye Bank Plc (2012) LPELR-15532 (SC) — cited at p. 15
Controller General of Prisons & Ors v. Elema & Anor (2021) LPELR-56219(SC) — cited at p. 12
D.E.N.R. Ltd. v. Trans Intl Bank Ltd. (2008) 18 NWLR (Pt. 1119) 388 — cited at p. 13
Dingyadi & Anor v. INEC & Ors (2010) LPELR-40142 (SC) — cited at p. 12
Ebebi v. Esemokumokumor (2022) 1 NWLR (Pt. 1812) 463 (SC) — cited at p. 26
Edegbe Ltd. v. Okomobor (2003) 1 FWLR (Pt. 188) 512 — cited at p. 25
F.B.N. v. Maiwada (2013) 5 NWLR (Pt. 1348) 444 — cited at p. 6
Gombe v. P.W. Nig. (1995) 6 NWLR (Pt. 402) 402 — cited at p. 26
Ibrahim v. Muhammadu (1998) 4 NWLR (Pt. 545) 176 — cited at p. 6
Kente v. Ishaku & Ors (2017) LPELR-42077 (SC) — cited at p. 15
Lakanmi v. Adene (2003) 10 NWLR (Pt. 828) 353 — cited at p. 25
Madukolu v. Nkemdilim 1962 NSCC 374 — cited at pp. 5, 13
Min., W.T. Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481 — cited at p. 6
NDIC v. CBN & Anor (2002) LPELR-2000 (SC) — cited at p. 12
Network Securities Ltd v. Dahiru & Ors (2022) LPELR-57835 (SC) — cited at p. 17
Ngere v. Okuruket XIV (2023) 14 NWLR (Pt. 1904) 361 — cited at p. 13
Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 1375) 466 — cited at p. 6
N.L.C. v. F.G.N. (2018) 7 NWLR (Pt. 1619) 561 — cited at p. 17
NNPC v. Roven Shipping Ltd. (2019) 9 NWLR (Pt. 1676) 67 (SC) — cited at p. 25
Nwachukwu v. Nwachukwu (2018) 17 NWLR (Pt. 1648) 357 — cited at p. 13
Nwankwo v. Yar'Adua (2010) 12 NWLR (Pt. 1209) 518 — cited at p. 8
Nwobike v. F.R.N. (2022) 6 NWLR (Pt. 1826) 293 — cited at p. 13
Nwoko v. Waoboshi (2020) 13 NWLR (Pt. 1742) 395 — cited at p. 26
Nworka v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422 — cited at p. 13
Obi v. INEC (2007) 7 SC 268 — cited at p. 26
Obitude v. Onyesom Comm. Bank Ltd (2014) 9 NWLR (Pt. 1412) 352 — cited at p. 7
Ogunseinde v. SGB Ltd (2018) 4 NWLR (Pt. 1624) 230 (SC) — cited at p. 25
Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 — cited at pp. 17, 19, 21, 22
Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19 — cited at pp. 5, 6, 7, 17
Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63 — cited at pp. 6, 22
Okonkwu v. F.R.N. (2022) 8 NWLR (Pt. 1833) 427 — cited at p. 13
Okpe v. Fan Milk Plc & Anor (2016) LPELR-42562 (SC); (2017) 2 NWLR (Pt. 1549) 282 (SC) — cited at pp. 15, 25
Oloriode v. Oyebi (1984) SCNR 390 — cited at p. 26
Oni v. Cadbury Nig. Plc. (2016) LPELR-26061 (SC) — cited at p. 26
Onyekwuluje v. Animashaun (2019) 4 NWLR (Pt. 1662) 242 (SC); (2019) 4 NWLR (Pt. 1662) 252 — cited at pp. 21, 22, 25
Owners of the MT "Marigold" v. NNPC & Anor (2022) LPELR-56858(SC) — cited at p. 11
R. A. Oliyide & Sons v. O.A.U., Ile-Ife (2018) 8 NWLR (Pt. 1662) 546 — cited at p. 19
Reg. Trustees of Apostolic Church, Lagos v. R. Akindele (1967) 7 NWLR 263 — cited at p. 22
Shelim & Anor v. Gobang (2009) LPELR-3043 (SC) — cited at p. 12
Shitta-Bey v. AG Federation & Anor (1998) LPELR-3055 (SC) — cited at p. 12
Skypower Exp Airways v. U.B.A. Plc (2022) 6 NWLR (Pt. 1826) 203 — cited at p. 19
SLB Consortium Ltd. v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317 — cited at pp. 6, 17, 21, 22
Socio-Political Research Development v. Ministry of FCT & Ors (2018) LPELR-45708 (SC) — cited at p. 12
Solumade v. Kuti (2022) 1 NWLR (Pt. 1810) 31 — cited at p. 17
SPDC v. Sam Royal Hotel Nig. Ltd. (2016) 8 NWLR (Pt. 1514) 318 — cited at p. 21
Stanbic IBTC Bank Plc v. Longterm Global Capital Ltd & Ors (2021) LPELR-56661 (SC) — cited at p. 12
Tanimu v. Rabi'u (2018) 4 NWLR (Pt. 610) 505 (SC) — cited at p. 25
Tsokwa Motors Ltd. v. UBA, Plc (2008) 2 NWLR (Pt. 1071) 347 (SC) — cited at p. 26
VF Worldwide Holdings Ltd. v. Dana Serv. Ltd. (2023) 15 NWLR (Pt. 1908) 573 — cited at pp. 18, 21
Yakubu v. F. M. B. N. Ltd. (2015) 11 NWLR (Pt. 1470) 232 — cited at p. 25
Referenced Statutes
Legal Practitioners Act, Sections 2(1), 24 — cited at pp. 15-16, 19, 21, 25
Plateau State High Court (Civil Procedure) Rules, 1987, Order 1 Rule 1, Order 23 Rule 1, Order 23 Rule 3 — cited at pp. 1-2, 7, 9, 10
