Chukwudi Nnalimuo & 3 Ors Vs Sunday Elodumuo & 2 Ors (2018)
LAWGLOBAL HUB Lead Judgment Report
AMINA ADAMU AUGIE, J.S.C.
By a Writ of Summons issued at the Onitsha Judicial Division of High Court of East Central State of the Federation in July 1971, the Respondents, who were the Plaintiffs, claimed as follows –
(a) Declaration of title to all that piece or parcel of land known and called “UZO lRU” situate at Oraifite – –
(b) 100 [Pounds] being damages for trespass.
(c) Perpetual Injunction restraining the Defendant, their servants and agents from further acts of trespass on the said land.
At the trial, the Respondents called eight witnesses. They relied upon traditional evidence, acts of ownership and possession and the ownership of adjacent lands in support of their said claims.
The Appellants, who were Defendants, called six Witnesses. They also claimed that the land belongs to them, however, they did not file any counter-claim in respect of the land in dispute.
In his Judgment of 19/7/1997, the learned trial Judge, Keazor, J., found the traditional history of the Respondents more reliable than that of the Appellants, and concluded as follows –
1
Placed side by side with each other, the evidence of the Plaintiffs definitely tells the balance on the imaginary scale in favour of the plaintiff. I hold that they have proved their case.
Dissatisfied, the Appellants appealed to the Court of Appeal and from the Grounds of Appeal filed, they formulated eleven Issues for Determination. The Respondents formulated seven Issues, and submitted further that the “Appellants’ Issues 3-8 does not arise from Ground 12 or any other Ground”; furthermore, that –
Appellants’ Issues 3-9 and 3-10 are co-related within Ground 13, which complained that the learned trial judge failed to make definite and categorical finding that the Plaintiffs failed to prove acts of possession or ownership of adjacent lands as claimed by them. Accordingly, said Issues 3-9 and 3-10 are moot and academic, as those aggrieved thereby are the Plaintiffs, not the Appellants, who had not suffered any prejudice – – – It is the Plaintiffs, who ought to complain and appeal and not the Defendants/Appellants.
In its judgment delivered on 12/5/2003, the Court of Appeal held that Appellants Issue 8 does not arise from Ground 12, and struck out the said Issue with all
2
the arguments in support.
The Court of Appeal did not stop there; it also struck out issues 9 and 10 and determined the Appeal on the remaining Issues Nos 1, 2, 3, 4, 5, 6, 7, and 11. At the end of the day, it resolved the said Issues against the Appellants. It therefore, dismissed their Appeal and affirmed the trial Court’s decision.
Dissatisfied, Appellants appealed to this Court with a Notice of Appeal that they amended, and the Amended Notice of Appeal contains 16 Grounds of Appeal, They formulated four Issues i.e.
(1) Whether the Originating Claim filed in the name of the firm “EZEBILO UMEADI & IKEIANI” is not incompetent, which incompetence rendered the proceedings of the Court below null and void
(2) Whether their lordships of the Court below did not act without jurisdiction in striking out Issues 1 and 9 of the Appellants’ Brief of Argument when there was no preliminary objection before the Court and whether in any event issues as formulated are incompetent
(3) Whether Plaintiffs proved their case for declaration of title
(4) Whether in the face of contradictions in testimony of
3
witnesses on material face, the Plaintiffs are entitled to declaration of title to land
The Respondents also formulated four Issues for Determination:
(a) Whether this suit filed in 1971 is incompetent by virtue of the Particulars of Claim dated 16/7/71 signed by EZEBILO UMEADI & IKEIIANI, Solicitors to the Plaintiffs.
(b) Whether their Lordships of the Court below had jurisdiction to strike out Issues 8 and 9 of the Appellant Brief –when there was no Preliminary Objection before the Court and whether in any event those issues as formulated were incompetent.
(c) Whether Respondents proved their case for declaration of title
(d) Whether there are contradictions in the testimony of the Respondents witnesses on material facts, which should disentitle them to declaration of title to land.
The first Issue formulated by both Parties raises the question of whether the decision of this Court in Okafor V. Nweke (2007) 10 NWLR (pt. 1043) 521, which touches on jurisdiction, applies in this Appeal based on an action that commenced 46 years ago.
It is a settled law that jurisdiction is the life wire of every litigation before a Court of law.
4
It is the lifeblood too, therefore, a Court of law must go into the issue first before any other issue. This is because if the Court has no jurisdiction, the proceedings, however ably and well conducted, will be a nullity ab initio- see Abiola & Sons Bottling Co. V. F. C. M. B. (2013) 10 NWLR (pt. 1363) 501 SC and Ani V. Nna (1996) 4 NWLR (Pt.440) 101.
In this case, the Appellants cited Sections 2(1) and 19 of the Legal Practitioners Act, 1962, which was the law in existence at the time of filing the claim in 1971, and argued that it is clear that it was” Ezebilo Umeadi & Ikejiani’, a firm that filed the claim; but it is only a legal practitioner, who is competent to sign a legal process, and a process signed in the name of a firm is a nullity and cannot be used to activate the jurisdiction of the Court.
Furthermore, that the person whose signature is subscribed on the claim is unknown, and it is not known whether the person is a legal practitioner admitted to practice law in Nigeria; and so, the Originating Claim filed on 16/7/71 is a nullity -Oketade v. Adewunmi (2010) 8 NWLR (pt. 1195) 64 FBN.
5
Maiwada (2013) 5 NWLR (pt. 1348) 444, Okafor V. Nweke (supra) cited.The Respondents, however, submitted that this fresh issue “comes after the Suit had crossed several streams and climbed several hills to get to the climax of our Court system and that “no doubt it is the last straw clutched in desperation to succeed.They asked whether the facts in this appeal are on all fours with the facts, which founded the decisions in all the cases from Okafor V. Nweke (supra), and submitted that Appellant only relied upon the Legal Practitioners Act, 1962 with no reference to the High Court Rules of Eastern Region, 1963 applicable then, which are different from the present Rules that has made vast changes in procedures, including as to commencement of Suits.
They cited Order 2, Rule 1; Order 3, Rules 1, 3 & 4 of the High Court Rules of Eastern Nigeria. 1963, and argued that Order 3, Rule 1 did not require that a claim must be signed by a Plaintiff or his Legal Practitioner; that Order 1, Rule 2 defined a solicitor to include any Legal Practitioner but Order 3, Rule 3 did not use “Plaintiff or his Solicitor but instead used
6
“Plaintiff or his Agent which meant that under the 1963 Rules, an agent was wider in meaning than a solicitor or a legal practitioner, and this scenario explains the impatience of this Court in Ogbuanyinya & Ors V. Okudo & Ors (1990) 4 NWLR (Pt. 146) 551 SC; and that as important as the issuance of a Writ was under the 1963 Rules, even the failure of the Judge to sign it was not considered fatal, citing Saude V. Abdullahi (1989) 4 NWLR (Pt. 116) 387 SC.
They further argued that it was only a Writ signed or issued by a non-recognized authority that was invalid – Nzenwanne V. lgwe (1976) 1 All NLR (pt. 1) 76, Uttah V. Independence Brewery (1974) 1 All NLR (Pt. 1) 497, Okwuosa V. Okwuosa (1974) 1 All NLR (pt.1) 496 Ike V. Nzekwe (1975) 1 All NLR (Pt.1) 17, lfegbu V. Ukaefu (1971) 1 ECSLR l84, and that-
No case has held that an application (e.g. particulars of claim) for a writ of summons made and subsequently issued as required by law by a Judge, registrar or other authorized person in accordance with the old 1963 Rules – – made the suit thereby void and all proceedings thereon a nullity. More so, as it was not mandatory that
7
only a Plaintiff or his legal practitioner must sign the application. Even more so, when the law allowed an oral application. The issuance of a writ of summons commenced a suit. Thus, even if [their] claim was irregular, which is not conceded, there was already a valid suit. This explains why a statement of claim superseded a writ of summons, not the particulars of claim. It is sheer technicality to look before the issue of the writ. Shuaibu V. Muazu (2007) 7 NWLR (Pt. 1033) 271; lgwe Uzor & Sons V. Onwuzor (2007) 4 NWLR (PT. 1024) 303.
Furthermore, that the rationale of Okafor V. Nweke (supra) and cases that followed it were based on the document in issue, being only a document that must be signed by the Plaintiff or his legal practitioner – FBN. V. Maiwada (supra); that in the cases following Okafor V. Nweke (supra), which they enumerated in their brief [14 cases numbered as (a) to (n)], the document was an originating process, Writ of Summons, Notice of Appeal, etc.; and that the Appellants carry the burden of establishing facts, which show that the conditions stipulated under the old Rules were not complied with, but they failed to establish such facts.
8
The Appellants, however, submitted in their Reply Brief that this Issue is a matter of jurisdiction since a suit must be initiated by due process of the law and there must not be any feature in the case which prevents a Court from exercising its jurisdiction, citing Madukolu V. Nkemdilim (1962) 2 SCNLR 341; that the Respondents’ arguments demonstrate a misconception of their contention that it was a law firm that filed the claim contrary to the Legal Practitioners Act that it is the said Act that determines who a legal practitioner is and not the provisions of High Court Rules of Eastern Nigeria, 1963; that provisions of Rules of Court cannot take precedence over substantive provisions of that Act and whatever was provided in the Rules must take a bow to the superior provision of that Act, citing FBN V. Maiwada (supra)
They further argued that there is nothing on the face of the Writ of Summons at page 1 of the Record to indicate that it was signed by a Judge or a legal practitioner; that a mere signature without subscribing the name of the person, who signed same, makes the Respondents case worse, because it is not known, who
9
signed the process; that it is apparent that the Writ issued on 16/7/71 was issued on the basis of the claim filed on same 16/7/71, therefore, the claim having been filed in the name of “Ezebilo Umadi & Ikejiani, it is a nullity and not a legal process that can serve as foundation for issuance of a Writ of Summons, citing Adefulu V. Okulaja (1996) 9 NWLR (pt.475) 668 @ 693.
They further submitted that the claim filed in the name of “Ezebilo Umeadi & Ikejiani’, being a nullity for infringing the said provisions of Sections 2(1) and 19 of the Legal Practitioners Act, the Writ of Summons filed on the basis of the claim is a nullity, more so that the Writ of Summons incorporated reliefs sought in the claim filed in the name of “Ezebilo Umeadi & Ikejianl’; and that what remains is for this Court to apply the law as enunciated in the numerous cases decided by this Court to the effect that a legal process filed in the name of the firm is, indeed, a nullity.
As to the Respondents argument that the onus of proof lies on them, the Appellants countered that having regard to their complaint of the breach of the said Legal Practitioners Act, 1962, the provisions
10
of the Rules of Court has no relevance; and that the onus of proving compliance, if any, is on the Respondents, who made the positive assertion that they had complied with the requirements of the said Legal Practitioners Act of 1962, citing Odom v. P.D.P. (2015) 6 NWLR (Pt 1456) P. 527 @ 560 – 563.
To start with, each case is determined on its own merits in accordance with the law existing when the cause of action arose -Mustapha V. Gov., Lagos State (1987) 2 NWLR (Pt 58) 539. Sections 2 (1) and 19 of the said Legal Practitioners Act, 1962 are similar to Sections 2(1) and 24 of the Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 1990, considered by this Court in Okafor V. Nweke (supra), decided in 2007.
Section 2(1) of the two Acts provides that subject to the provisions of this Act, a person shall be entitled to practice as barrister and solicitor if, and only if, his name is on the roll; and Section 19 of the 1962 Act & Section 24 of the current Act says-
“Legal Practitioner” means a person entitled in accordance with the provisions of this Act to practice
11
as a barrister or solicitor, either generally or for the purposes of any particular office or proceedings.
In the said Okafor V. Nweke (supra) the originating processes were signed by a law firm, and this Court categorically said that-
The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner he must have his name in the roll, otherwise, he cannot engage in any form of legal practice in Nigeria, – – – Since J.H.C, Okolo, SAN & Co is not a legal practitioner recognized by the law, it follows that the said J,H.C, Okolo, SAN & Co cannot legally sign and/or file any process in the Court and as such the Motion on Notice – – Notice of Cross-Appeal and brief of argument – – are incompetent in law particularly as the said firm of J.H.C. Okolo, SAN & Co is not a registered legal practitioner.
This Court reiterated this position that a law firm “cannot legally sign and/or file any process in the Courts”; and any such process signed by a law firm is “incompetent in law in many other cases, including FBN V. Maiwada (supra), where Fabiyi, JSC, stated –
12
The decision in Okafor V. Nweke was based on a substantive law – an Act of the National Assembly i.e. the Legal Practitioners Act. It is not based on Rules of Court. According to Oguntade JSC at page 534 of the Judgment in Okafor v. Nweke-
It would have been quite another matter if what is in issue is a mere compliance with Court Rules.”
Let me say it bluntly that where the provisions of an Act like the Legal Practitioners Act is at play, as herein, provisions of Rules of Court, which are subject to the law, must take the side line.
In this case, the Respondents argued that the Appellants made no reference to the High Court Rules of Eastern Region, 1963, which “are starkly different from the present Rules”, particularly Order 2 Rule 1 of the said High Court Rules, which stipulates that-
Every suit shall be commenced by a writ of summons signed by a Judge, Magistrate or other officer empowered to sign summonses. The writ of summons shall be issued by the Registrar or other officer of the Court empowered to issue summonses on application. The application shall ordinarily be made in writing but the Registrar or other officer as aforesaid where an applicant for a writ of
13
summons is illiterate may dispense with a written application and instead himself record full particulars of the oral application made and on that record a writ of summons may be prepared, signed and issued.
They also referred to Order 3 Rule 1 (1), (3) & (4) that says
(1) It shall be sufficient for the plaintiff to state his claim in his application for the writ of summons briefly in a general form, but he may deliver to the Registrar at the time of making the application for the writ of summons, particulars of his claim in any form which shall give the defendant reasonably sufficient information as to the details thereof.
(3) Any Judge or other officer empowered to sign writ of summons may, in his discretion, refuse to sign any writ of summons until the plaintiff shall have delivered to the Registrar such particulars and duplicate provided that where the plaintiff is illiterate and unable to furnish particulars in writing the particulars and duplicates thereof shall be prepared by the Registrar from the dictation of the plaintiff.
(4) The registrar shall annex the particulars to the writ of summons and shall annex a duplicate thereof
14
each copy of the summons for service.
So, under the said 1963 High Court Rules, the writ of summons, by which a Suit is commenced, is signed by a Judge, Magistrate or other officer empowered to sign it. The application is usually made in writing; but an illiterate Applicant is allowed to make an oral application, which the Registrar or other officer may record, and on that record, the writ is then prepared, signed and issued.
It is sufficient under the said Rules for the Plaintiff to state his claim briefly in a general form or deliver to the Registrar the particulars of his claim in any form, which gives the Defendant “reasonably sufficient information as to the details thereof”; and the Judge or other officer may refuse to sign a writ of summons until a Plaintiff delivers to the Registrar such particulars of claim.
The present Rules referred to by the Respondents is the Anambra State High Court (Civil Procedure) Rules, 2006, and originating process is defined in Order 1 Rule 2 as any process by which a Suit is initiated”. The 2006 High Court Rules require that it
15
be signed by the Plaintiff himself or his legal practitioner, which is generally the case – see Okpe V. Fan Milk (supra), wherein this Court per I. T. Muhammad JSC, explained that-
Rules of Court and practice mandate that for a Notice of Appeal to be valid, it has to be signed by the Appellant himself or his legal practitioner. Thus, the requirement of such Court Rules, and in fact the Legal Practitioner’s Act is that generally, it is a legal practitioner called to the Nigerian Bar and whose name appears in the Roll of Legal Practitioners, who may issue Court processes, including originating processes such as a notice of appeal.
In this case, the Writ of Summons at page 1 of the Record reads-
SUIT NO. 0/122/71
Between Obunike Eqwuatu & 2 Ors. – Plaintiffs
And Chukwuji Nnalinmuo & 5 Ors. – Defendants
Chukwuji Nnalinmuo & 5 Ors., C/o St Johns Catholic Mission, Akwukwu Town.
Your (sic) are hereby commanded in the States name to attend this Court at Onitsha on Monday, the 23rd day of August, 1971 at 9 o clock in the forenoon to answer a Suit by Obunike Eqwuatu & 2 Ors. of Umunakwa
16
Quarter, Ifite Village, Oraifite Town
The Plaintiffs claim against the Defendant as follows:
(a) Declaration of title etc.
(b) 100 damages for trespass.
(c) Perpetual injunction restraining the Defendant etc.
(See copy of claim overleaf)
Issued at Onitsha the 16th day of July, 1971.
Sgd.
That was it, the Writ of Summons ended with a mere “Sgd. – no name and no designation. There was nothing to indicate, who signed the Writ of Summons, whether a Judge, Magistrate or other officer empowered to sign summonses, as stipulated in Order 2 Rule 1 of the High Court Rules of Eastern Nigeria, 1963. The Writ of Summons also referred to “copy of Claim overleaf.
The 6-paragraph CLAIM is at page 2 of the Record and it was signed by “EZEBILO UMEADI & IKEJIANI, Plaintiffs Solicitor.
The Appellants attacked both Writ of Summons and CLAIM. They contend that the said Writ is a nullity because the person, who had signed it, is unknown; and that the CLAIM, which is the basis upon which the Writ was issued, is also a nullity because it was signed by a law firm in breach of the Legal
17
The Respondents position, however, is that the Appellants’ contention cannot stand in the face of the said High Court Rules. They argued that the originating process under the 1963 Rules was the Writ of Summons” signed by a Judge of the High Court, which contained reliefs sought, not particulars of claim; and that-
The sheer truth is that under the old Rules, particulars of claim was significantly of less importance that a writ of summons and was only a matter of form to which technicality was abhorred. We therefore, urge the Supreme Court to reject Issue No. 1, both as a matter of law and of judicial policy as upholding it will be tantamount to injecting great instability in the legal process.
Obviously, in the circumstances of this case, it is not possible to put the Legal Practitioners Act, 1962 and 1963 High Court Rules into neat little compartments, and keep them entirely separate.
There is no indication of who signed the Writ, and this Court cannot take the word of the Respondents that it was signed by “a Judge of the High Court”. It is settled law that appellate Courts are bound by the
18
record of the proceedings before it, and cannot depart therefrom – Sommer V. FHA (1992) LPELR-3103 (SC).
See also SLB Consortium Ltd. V. NNPC (2016) 9 NWLR (pt. 1252) 317, wherein this Court made it very clear that – once it cannot be said who signed the process, it is incurably bad. A signature identifies a document as an act of a particular person and without a signature, the document cannot pass as the act of such an unnamed person; it is, therefore, completely useless – Tsalibawa V. Habiba (1991) 2 NWLR (pt. 174) 461 at 480.
In addition, it is apparent that the CLAIM attached to the Writ of Summons was part and parcel of the Writ of Summons. As I pointed out earlier, under the 1963 Rules, a Plaintiff states his claim in a general form or delivers to the Registrar particulars, which gives a Defendant sufficient information of its details, and it is based thereon that the Writ is prepared, signed and issued.
In other words, a Writ of Summons is prepared on the basis of the claim, as stated by the Plaintiff, before it is actually signed. In this case, it was clearly stated in paragraph 6 of the CLAIM –
<br< p=””
</br<
19
The Plaintiffs on the above premises claim against the Defendants, jointly and severally, as follows –
(a) Declaration of title to all that piece or parcel of land known and called “UZO IRU” situate at Oraifite, the annual value of which is 10 (Pounds).
(b) 100 [Pounds) being damages for trespass.
(c) Perpetual Injunction restraining Defendant, their servants and agent from further acts of trespass on the said land.
The claims were incorporated in the Writ of Summons as follows-
The Plaintiffs claim against the Defendant as follows:
(a) Declaration of title etc.
(b) 100 damages for trespass.
(c) Perpetual injunction restraining the Defendant etc.
What can be clearer than that The Respondents claims against the Appellants, which were inserted into the Writ of Summons, were obtained from the Respondents’ CLAIM attached thereto. In effect, the Writ of Summons could not have been prepared, signed and issued without particulars derived from the CLAIM. So, the Writ of Summons itself is inextricably tied to the CLAIM, and any defect in the CLAIM must affect the Writ of Summons.
20
The CLAIM was signed by “EZEBILO UMEADI & IKEJANI’, a law firm, and on the authority of Okafor V. Nweke (supra), and other decided cases of this Court, the said CLAIM signed by a law firm is incompetent in law, and it is, therefore, a nullity.
The Respondents urged this Court to proceed with caution in deciding whether Okafor V. Nweke (supra) applied since –
The issue of ownership will not be settled thereby if the Suit is struck out and a new suit on account of limitation bar may not be permissible, leaving the issue of ownership undecided. The parties will forever be condemned to physically fight or resort to other self help to use the land dispute.
But the Appellants contend that this is an unnecessary appeal to sentiment, which has no place in our law; that the Court decides issues submitted to it, not what will happen after it has done so; therefore, sentiments cannot be the basis of any adjudication, citing Total Plc. V. Onuoha (2011) 11 NWLR (Pt 725) 634.
As much as I sympathize with the Respondents in this case that was filed in July 1971, over 46 years ago, I agree with the Appellants that sentiments
21
have no place in judicial deliberations – see Ezeugo V. Ohanyere (1978) NSCC (Vol. 11) 449, where Obaseki, JSC, added “for if it [i.e. sentiments] did our task would be infinitely more difficult and less beneficial to the society.
The Appellants are right that this is a matter of jurisdiction. A Suit must be initiated by due process of the law, and without any feature that prevents a Court from exercising its jurisdiction, as decided by this Court in Madukolu V. Nkemdillm (supra).
In this case, there is nothing that can alleviate the situation, the Respondents have found themselves. This is a Court of law; a Court bound by the Record transmitted from the lower Courts, a Court that cannot be swayed by sentiments, and a Court that must rise above the miasma of despair and act according to law, particularly when an issue touches on jurisdiction, as in this case.
Jurisdiction is described as the pillar upon which the entire case stands, and once it is shown that a Court lacks jurisdiction, the foundation of the case is not only shaken, the case crumbles. In effect, there is no case before the Court for adjudication
22
see Okolo & Anor V. Union Bank (2004) 3 NWLR (pt. 859) 87 and Ministry of W. & T., Adamawa State V. Yakubu (2013) 6 NWLR (pt. 1351) 481, where this Court aptly observed that –
The fatal effect of the signing of an originating process by a law firm is that the entire Suit was incompetent ab initio. It was dead at the point of filing. This highlights the painful realities that confront a litigant when counsel fails to sign processes as stipulated by law. The originating process, as in this case is fundamentally defective and incompetent It is inchoate (and) legally non-existent.
In this case, the originating processes filed at the trial Court were defective and incompetent. The trial was therefore, a nullity.
Thus, it is not necessary to look into the other Issues raised. The Suit filed by the Respondents at the trial Court is struck out. I make no order as to costs.
SC.278/2005