Whether Defect in Originating Process Can be Waived by Parties
In the Supreme Court of Nigeria
Holden at Abuja
On Thursday, the 7th Day of January, 2022
Before Their Lordships
Mary Ukaego Peter-Odili
Kudirat Motonmori Olatokunbo Kekere-Ekun
Ejembi Eko
Mohammed Lawal Garba
Ibrahim Mohammed
Musa Saulawa
Justices, Supreme Court
Appeal No: SC.80/2016
Between
SKYPOWER EXPRESS AIRWAYS LTD APPELLANT
And
1. UNITED BANK FOR AFRICA PLC
2. SILVERGATE INTERNATIONAL RESPONDENT
MERCHANT BANK PLC
(Lead Judgement delivered by Honourable Mohammed Lawal Garba, JSC)
Facts
At the trial court, the Appellant as Plaintiff commenced the suit against the Respondents via a writ of summons dated 11th May, 2000, claiming inter alia, the sum of N9,071,650.00 paid into the 2nd Respondent’s account with the 1st Respondent between 24th November and 2nd December, 1998 on the inducement of the 1st Respondent.
The Respondents denied the claim, in their respective Statements of Defence. Upon conclusion of trial, judgement was entered in favour of the Appellant on 30th May, 2008. Aggrieved thereby, the 1st Respondent appealed to the Court of Appeal, challenging the competence of the Writ of Summons and Statement of Claim, which were signed in the name of a law firm instead of a legal practitioner known to law. The Appellant on its part, raised a Preliminary Objection challenging the competence of the Notice of Appeal filed by the 1st Respondent and the jurisdiction of the Court of Appeal to determine the appeal in the face of the incompetence. The Court of Appeal, however, decided to determine first, the first issue raised, which challenged the competence of the originating processes filed by the Appellant at the trial court. The court allowed the appeal on this ground and struck out the Appellant’s Preliminary Objection challenging the competence of the appeal before the Court of Appeal.
At the Supreme Court, the Appellant challenged the decision of the Court of Appeal striking out its Preliminary Objection, and contended that the Court of Appeal had no jurisdiction to have entertained the appeal. The Appellant also contended that the Court of Appeal ought to have distinguished the case from the cases of OKAFOR v NWEKE (2007) 10 NWLR (Pt. 1043) 521; SLB CONSORTIUM LTD v NNPC (2011) 9 NWLR (Pt. 1252) 317 and FBN PLC v MAIWADA (2013) 5 NWLR (Pt. 1348) 444.
Issue for Determination
Though the Appellant formulated six issues for determination by the court, and the Respondent posed three issues for determination of the appeal, the Supreme Court resolved the appeal on the sole issue as follows:
Whether the Court of Appeal was right when it held that the Appellant’s action at the trial court was incompetent, the Writ of Summons and Statement of Claim having been signed in the name of a law firm instead of a legal practitioner known to law.
Arguments
Counsel for theAppellant contended that the person who signed the originating processes in question, is indefinable by the name written on it. He argued that J.O. Esezoobo who signed the processes, is different from J. Odion Esezoobo & Co written under. He maintained that where the signature is the name of counsel, as in this case, it cannot be ascribed to a law firm since it is not a mere mark or contraption that is not identifiable. He relied on DANKWAMBO v ABUBAKAR (2016) 1 NWLR (Pt. 1495) 157. He posited that with the signature – “J.O. Esezoobo” being clearly the name of the person who signed, the identity of the person who appended the signature was no longer in doubt. Counsel relied on the decision in HAMZAT v SANNI (2015) 5 NWLR (Pt. 1453) 486 in respect of his submission on the difference between “shall sign” and “shall endorse” in respect of processes of court provided for in the Rules of the trial court. The Appellant also submitted that the Respondents, who did not raise an objection to the competence of the processes filed by the Appellant at the trial court, are deemed to have waived their rights to complain about the alleged incompetence.
On his part, Counsel for the 1st Respondent argued that only a legal practitioner entitled to practice law under the Legal Practitioners Act (LPA) can sign processes to be filed in court and that a process signed in the name of a law firm is incompetent. He argued further that the decisions in OKAFOR v NWEKE (2007) 10 NWLR (Pt. 1043) 521; SLB CONSORTIUM LTD v NNPC (2011) 9 NWLR (Pt. 1252) 317 do not create exceptions and borderline cases. He maintained that the processes signed by J. Odion Esezoobo & Co did not come before the trial court initiated by due process of law and upon fulfilment of a condition precedent to the exercise of jurisdiction, and so, they are incompetent. He argued further that a party cannot waive lack of jurisdiction of a court to entertain an action.
Court’s Judgement and Rationale
Before determining the issue, the Supreme Court noted that the Appellant challenged the competence of the 1st Respondent’s Notice of Appeal at the lower court by way of Preliminary Objection, which was not countenanced by the lower court as the court went on to determine the issue raised by the 1st Respondent on competence of the originating processes by the Appellant initiated the suit before the trial court. The Apex Court validated the position taken by the Court of Appeal in determining the issue of competence of the originating processes before the trial court, despite challenge to the competence of the Notice and Grounds of Appeal and its jurisdiction to entertain the appeal. The Supreme Court reasoned on this point, that in the absence of the requisite jurisdiction on the part of the trial court, the question of the competence or incompetence of the appeal would not arise. The court relied on NNPC v ROVEN SHIPPING LTD (2019) 9 NWLR (Pt. 1676) 67 at 92 where the Supreme Court per Muhammad JSC, restated that a decision arrived at by a court without jurisdiction, being null and void, can never be the basis of a competent appeal or further litigation.
On the sole issue, the Supreme Court held that an originating process signed in the name of a law firm is incurably incompetent and incapable of igniting or invoking the jurisdiction of the court, for being in contravention of Sections 2(1) and 24 of the Legal Practitioners Act. The court cited and relied on the decisions of OKAFOR v NWEKE (2007) 10 NWLR (Pt. 1043) 521; SLB CONSORTIUM LTD v NNPC (2011) 9 NWLR (Pt. 1252) 317 and FBN PLC v MAIWADA (2013) 5 NWLR (Pt. 1348) 444.
Their court noted that the question whether a court process was signed in the name of an identifiable person or in the name of a law firm, is determined by a physical view of the process itself. Their Lordships observed that the processes contained in the record of appeal, were signed by way of a contraption as a signature for and in the name of J. Odion Esezoobo. Citing the case of SLB CONSORTIUM LTD v NNPC where His Lordship, Rhodes-Vivour, JSC explained that all processes filed in court must be signed with the signature of counsel which may be any contraption, followed by the name of counsel, who counsel represents and the name and address of the law firm, the court held that the originating process of the Appellant did not meet the requirements highlighted in the case. A look at the signature on the process did not show the semblance of a specific and identifiable name, which is required to be clearly written in addition to the contraption.
On the submission that the 1st Respondent is deemed to waived its right to challenge the competence of the processes, having failed to raise the objection at the trial court and participated in the proceedings, the court held it is trite that where a court lacks jurisdiction or competence to entertain an action, the parties to the suit cannot by acquiescence, waiver or even agreement, confer jurisdiction or competence upon the court. A party cannot waive in a situation, where clearly the court lacks jurisdiction to entertain a matter – UGO v Okafor (1996) 3 NWLR (Pt. 438) 542. It is never too late in the course of the proceedings of all courts in a matter, at all stages of the judicial ladder, for any of the parties or the courts to raise the issue of jurisdiction, in any form, and that once raised or it arises, it should be decided first before further steps are taken or other issues in the matter in order to avoid an exercise in futility – MADUKOLU v NKEMDILIM (1962) 1 All NLR 587.
In view of the foregoing, the issue was resolved in favour of the 1st Respondent. The court held that this effectively subsumed other issues raised in the appeal. The originating processes were thereby struck out.
Dissenting Opinion of Honourable Ejembi Eko, JSC
His Lordship held the dissenting view that the principle of law espoused in OKAFOR v NWEKE (2007) 10 NWLR (Pt. 1043) 521; SLB CONSORTIUM LTD v NNPC (2011) 9 NWLR (Pt. 1252) 317 and FBN PLC v MAIWADA (2013) 5 NWLR (Pt. 1348) 444, were wrongly applied considering the peculiar facts of this case. His Lordship expressed the view that a Writ of Summons is issued “by Order of the Court” and enjoys the presumption of regularity under Section 168(1) of the Evidence Act. His Lordship distinguished between a Writ of Summons which is issued by Order of Court and the endorsement on the Writ of Summons.
The learned Justice further noted that the competence of the Writ of Summons, was not an issue before the trial court. Therefore, the 1st Respondent’s Ground of Appeal at the lower court, was not a challenge to any particular ratio decidendi of the trial court. It follows that leave ought to be sought and obtained before filing such Ground of Appeal, being a fresh issue at the lower court.
The issue of competence of the Writ ought to have been raised timeously as a Preliminary Objection and not a Ground of Appeal. Having failed to raise the objection, the Respondents were estopped from raising same as a Ground of Appeal before the lower court. On this basis, His Lordship allowed the appeal.
Appeal Dismissed by a Majority Decision of 4:1.
Representation
Johnson Odion Esezoobo, Esq. with Samuel Esezoobo, Esq. for the Appellant.
Adedapo Tunde-Olowu, Esq. with Davidson Oturu, Esq. and Rebeccar Ebokpo, Esq. for the 1st Respondent.
No representation for the 2nd Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)
