Dr. Tunji Braithwaite Vs Skye Bank Plc (2012)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

By its Notice of preliminary objection filed on 19th October 2011, the Respondent challenges the competence of the instant appeal on the ground that the appeal being a continuation of the original suit which brought it about, and the suit, suit No. LD/1850/2005 was commenced by a defective Writ of Summons and Statement of Claim, both dated and filed on 25th October 2005, the appeal is incurably defective thereby robbing the court of the jurisdiction to hear and determine the appeal.

A six paragraph affidavit and four Exhibits, SKYE 1, 2, 3 and 4 support the preliminary objection. These Exhibits are the Writ of Summons, statement of claim and the official receipts issued at the trial court, Lagos State High Court, for payments in respect of the two originating processes.

In opposing the preliminary objection, the Appellant relies on the fifteen paragraph counter-affidavit deposed to by one Ismail Shaib Usman a legal practitioner in the Appellant/Respondent’s Law firm: Tunji Braithwaite and Co.

Both sides adopted and relied on their written addresses as their arguments for and against the preliminary objection.

Learned counsel to the Respondent/Objector, in their written address and orally, submits that the non-signing of the originating Writ of Summons and Statement of Claim by the claimant or his counsel as required by the mandatory provisions of Order 6 Rule 2 (3) and Order 15 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 respectively, has deprived the trial court the jurisdiction over the suit in the first place. It is further submitted that neither the court below nor this court can, by extension, assume jurisdiction on the basis of the defective originating processes.

The Appellant, it is further contended, sues through the law firm of Oluyede and Oluyede which is not a legal practitioner within the meaning of Section 24 of the Legal Practitioners Act Cap. 207 Laws of the Federation of Nigeria 1990. Originating processes signed by the law firm instead of a Legal Practitioner, learned counsel stresses, cannot be the basis of the claimant’s action at the trial court and subsequent appeals arising from same. Relying on Madukolu v. Nkemdilim (1962) 2 NSCC 374 at 379-380; State v. Onagoruwa (1992) 2 NWLR (Pt.229) 33; Funduk Engineering Ltd. v. Mcarthur (1995) 4 NWLR (Pt.392) 640 and Ma’aji Galadima v. Alhaji Adamu Tambai (2000) 11 NWLR (Pt.677) 15, learned counsel insists that the point he raises is a jurisdictional one and same can be raised for the first time even in this court. Further and particularly relying on Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521, and SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317 at 336, counsel urges us to uphold the preliminary objection and strike out the incompetent appeal.

Paragraphs 9-11 of the Appellant/Respondent’s counter-affidavit are hereunder reproduced for their significance in Appellant’s opposition to the preliminary objection.

“9. That Exhibits SKYE 1, 2, 3 and 4 respectively attached to the Affidavit in Support are in the nature of additional evidence which are unrelated to the narrow issue involved in the Interlocutory Appeal in this Honourable Court.

10. That the Writ of Summons and Statement of Claim and associated processes in Suit No. LD/1850/2005 are not incurably defective as alleged.
11. That the name of the Legal Practitioner who settled the Originating Processes in Suit No. LD/1850/2005 was stated in the Writ of Summons as Ajibola Oluyede of Oluyede & Oluyede, a registered firm of legal practitioners.”

Respondent to the objector’s arguments, learned Appellant’s counsel submits that the grounds of the Respondent’s objection consist of fresh issues that were not raised at the trial High Court or the court below, the Court of Appeal. Though the Respondent/Objector is entitled to raise a jurisdictional issues any time and even for the first time at the Apex Court, learned Appellant/Respondent counsel concedes, the issue, however, must be raised on the basis of a ground of Appeal. The Respondent having failed to raise the issue either at the trial court or the court below, it is contended, cannot raise the issue now. Learned Appellant/Respondent counsel supports his contention with the decisions in Anyoha v. Chukwu (2008) 4 NWLR (Pt.1076) 31 at 47, Usman Dan Fodio University v. Kraus Thompson, Organization (Nig.) Ltd. (2001) 15 NWLR (Pt. 736) 305, Ezomo v. Oyakhire (1985) 2 SC 260 and Shobogun v. Sanni & Ors. (1974) 1 ALL NRL (Pt. 2) 311 at 316.

On the merit of the preliminary objection, learned Appellant’s counsel while conceding that Order 6 rule 2(3) and Order 15 rule (1) of the Lagos State High Court (civil procedure) require the two originating processes to be signed by a legal practitioner where the litigant does not sue in person, the same rules of court, counsel contends, provide that non-compliance with any of its provision must be raised timeously otherwise it would be deemed waived by the complainant.

Besides, learned counsel argues, it is not every non-compliance with the rules that is capable of vitiating proceedings. The practice has grown, it is submitted, for courts to treat most non-compliance as irregularities incapable of nullifying proceedings.

In the instant case, it is further submitted, the mistakes is that of the counsel engaged by the Appellant and such mistakes, on a plethora of authorities, is never visited on the litigant. The provision of S.2 (1) of the Legal Practitioners Act, it is insisted by counsel, must not be read in isolation. The provision if read in the light of the rules of the trial court will be understanding to be an elastic one. The Respondent’s objection is over-reaching and to uphold same at this stage, learned Appellant counsel argues, will be inequitable. He urges that the decisions of this court in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 and SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (1252) 317, given the peculiar facts in the case at hand, should not be applied. Relying on BBN Ltd. v. S. Olayiwola & Sons Ltd. and Anor. (2005) 1 SC (Pt. 11) 1, Adefawasin v. Dayekh (2007) ALL FWLR (Pt. 348) 911 at 930, NDP v. INEC (2001) ALL FWLR (Pt. 358) 1124 at 1144 – 1145, Abubakar v. Yar’adua (2008) ALL FWLR (Pt. 404) 1409 at 1449, Famfa Oil Ltd. v. A.G. Federation (2003) 9-10 SC 31. Appellant’s counsel finally urges that the objection be dismissed as being unmeritorious.

The issue that arises from the Respondent’s preliminary objection is whether the Writ of Summons and the Statement of Claim, Exhibits SKYE 1 and 3 annexed to the affidavit in support of the preliminary objection, not being signed by a legal practitioner, are by virtue of that defect incapable of maintaining suit No. LD/1850/2005 and by extension the instant appeal.