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.
- That the Writ of Summons and Statement of Claim and associated processes in Suit No. LD/1850/2005 are not incurably defective as alleged.
- 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.
Learned Respondent/Objector’s counsel, Osinaike Esq., insists that Exhibits 1 and 3 being fundamentally defective have affected the validity of the suit the Appellant purportedly commenced with then as well as the two appeals which evolved from the incompetent suit.
On the other hand, learned Appellant/Respondent’s counsel Okesiji Esq. counters that the defect in Exhibits SKYE 1 and 3 being procedural and which the Respondent/Objector did not raise timeously, are deemed to have been waived. It is overreaching, learned counsel contends, to allow the Respondent raise his objection now which objection the rules of the trial court provides must be treated as merely irregularity.
Now, a perusal of Exhibits SKYE 1 and 3 certainly leaves one in no doubt that the two have not been signed by a Legal Practitioner. Whereas Exhibit SKYE 1 is not signed at all, Exhibit SKYE 3 carries a signature on top of the same of the claimant’s firm of solicitors, Oluyede and Oluyede.
I agree with learned counsel to the Respondent/Objector that this court has consistently held that the validity of the originating processes in a proceeding before a court is fundamental and a necessary requirement for the competence of the suit and proceeding the processes set out to commence. Failure to commence a suit with a valid Writ and/or Statement of Claim goes to the root of the action since the conditions precedent to the exercise of the court’s jurisdiction would not have been met to duly place the suit before the court. See Madukolu v. Nkemdilim (supra) and Mohammed Mari Kida v. A. D. Ogunmola (2006) 13 NWLR (Pt. 997).
I am unable to agree with Learned Appellant/Respondent counsel that the defect in Exhibits SKYE 1 and 3 are procedural and having not been made an issue timeously the Respondent/Objector is deemed to have waived his right. Being procedural mistakes, Appeallant/Respondent counsel further urges, the defects in the Exhibits should, given the adjectival rules of the trial court, be treated as mere irregularities.
Learned counsel must be reminded that Respondent’s preliminary objection is not founded on order 6 rule 2 (3) and order 15 rule 2 of the High Court of Lagos State (civil procedure) rules 2004 applicable to the trial court alone, non-compliance with which adjectival provisions of the same rules of court consider to be mere irregularity. Beyond that, the preliminary objection is also founded on S.2(1) and S.24 of the legal practitioners Act CAP Laws of the Federation 2004.
Again, learned Appellant/Respondent counsel in asking us to ignore the decisions of this court in Okafor v. Nweke (supra) and SLB Consortium Ltd. v. NNPC (supra) because of the peculiar facts of the instant case seem to be requesting the impossible. The court remains bound by its previous decisions where the facts and the laws considered in the earlier cases are the same or similar in the cases being subsequently determined. See Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 SC and Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530.
The resolution of the issue that arises from Respondent’s preliminary objection in the case at hand, Learned Appellant counsel is to be reminded, also requires the application of the provisions of Section 2 (1) and 24 of the Legal Practitioner’s Act, Laws of the Federation of Nigeria the application of which provisions, to similar facts, informed the decisions of this court in Okafor v. Nweke (supra) and SLB Consortium Ltd. v. NNPC (supra).
I hasten to note that sitting as a full court, this court has further applied the principle it enunciated in the two earlier cases the Appellant/Respondent asked us to deviate from in its unreported decision in First Bank of Nigeria Plc and another v. Alhaji Salmanu Maiwada in Appeal No. SC.204/2002 delivered on 25th May, 2012.
At page 12 of the judgment, the court per my learned brother Fabiyi JSC succinctly restated the principle thus:-
“The purpose of sections 2(1) and 24 of the act is to ensure that only legal practitioner whose name is on the roll of this court sign court processes…
In my considered opinion, the words employed in drafting sections 2 (1) and 24 of the Act are simple and straight forward. The literal construction of the law is that Legal Practitioners who are animate personalities should sign court processes and not a firm of legal practitioners which is inanimate and cannot be found in the roll of this court.”
Further addressing the collateral issue similarly raised in the case at hand as it was earlier raised in Okafor v. Nweke before then, His lordship Fabiyi, JSC proceeded at page 21 of the judgment thus:
“The decision 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 on Okafor v. Nweke, ‘It would have been quite another matter it what is in issue is a mere compliance with court rules.’ Let me say 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 sideline.”
His lordship had earlier in his judgment opined thus:-
“The provisions S.2(2) and 24 of the Act as reproduced above remain in law and shall continue to be so until when same is repealed or amended. For now, I see nothing amiss about the law.”
Learned Appellant/Respondent’s counsel has made similar suggestions considered by this court that since the non-signing of Exhibits SKYE 1 and 3 are lapses on the part of counsel, the latter’s sin should not be visited on the litigant; that to allow adjectival provisions stultify proceedings is to enthrone technicality and that finding merit in Respondent’s objection that has not been raised timeously will occasion miscarriage of justice. The decision of this court in First Bank Plc and Anor. v. Alhaji Salmanu Maiwada, shown in the passages of the judgment deliberately reproduced earlier in this has addressed all these questions.
Learned Appellant’s/Respondent’s Counsel who has not shown to us that the earlier decisions he urges us not to apply in the instant case were reached per incuriam that the decisions are clearly wrong, erroneous in law or that public policy considerations will necessitate the departure cannot be indulged along the lines he canvasses. We are bound by these earlier decisions of ours.
Having found that Exhibits SKYE 1 and 3 have not been signed by a Legal Practitioner as required by both the rules of the trial court and extant provisions of the legal Practitioners Act, the two originating processes are on the authorities fundamentally defective and incapable of initiating any competent action. Suit No. LD/1850/2005 purportedly commenced by the defective originating processes being incompetent is incapable of giving rise to a competent appeal. In the result, I find merit in the Respondent’s preliminary objection and strike out the incompetent Appeal No. SC.325/2010. Parties should bear their respective costs.
SC. 325/2010