Integrated Merchants Limited V. Osun State Government & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOORE A. A. ADUMEIN. J.C.A. (Delivering the Leading Judgment)

The appellant was the plaintiff while the respondents were the defendants in Suit No: HOS/76/2002 which was heard and determined by the High Court of Osun State, Osogbo Judicial Division, holding at Osogbo presided over by Abdulkareem, J. The parties filed and exchanged pleadings; the matter proceeded to trial; the appellant called one witness who was cross-examined by the respondents’ counsel; the respondents rested their case on that of the appellant; counsel for the both parties addressed the trial court and judgment was delivered on the 12th day of December,2006.

The appellant’s claim was dismissed. The appellant was dissatisfied with judgment of the trial court and filed a notice of appeal containing 4 (four) grounds (pages 72 to 74 of the record of appeal). The grounds of appeal, shorn of their particulars, are reproduced herein:

1. The Honourable Judge erred in law and fact when he held that the insurance Performance Bound (sic) Exhibit “F” was not a fulfillment of the condition precedent to the release of 60% materials advance when the same has been incorporated into the agreement dated 23rd December, 1998 between the parties.
2. The learned trial Judge erred in law and fact when he held the Respondents were entitled to treat the Agreement between the 1st respondent and the Appellant for the supply installation and commissioning of a comprehensive Television Studio Equipment for the Osun State Broadcasting Corporation Services dated 23rd August, 1998 as having been terminated on the ground of inordinate delay by the Appellant and thereby came to the wrong conclusion
3. The trial court erred in law when it went beyond interpreting and giving effect to Exhibit “E” but proceeded to consider extraneous matters to nullify Exhibit “E” thus defeating the intention of parties.
4. The decision of the trial court is against the weight of evidence.

The appellant’s statement of claim of 26 (twenty-six) paragraph spans pages 3 to 6 of the record of appeal. The respondents filed a statement of defence of 11 paragraphs (pages 8 and 9 of the record). The appellant’s reply to the respondents’ statement of defence covers pages 10 to 12 of the record of appeal. It is important to point out here that both the statement of claim and the reply to the statement of defence, filed by the appellant in the court below, were signed on its behalf by “TUNDE OLASHORE & CO” (see pages 6 and 12 of the record of appeal). The parties were, therefore, invited to address the Court on the competence of the appellant’s statement of claim and reply to statement of defence.

Mr. Babatunde Aiku (SAN), learned counsel for the appellant, at the hearing of the appeal argued that the appellant’s statement of claim signed by “TUNDE OLASHORE & CO” complied with the High Court (Civil Procedure) Rules of Oyo State applicable when the suit was filed in 2002 as the legal practitioner stated the name of the law firm and supplied the address in compliance with Order 5 rule 12(1). On this point, the learned Senior Counsel referred to and relied on the case of DAVID V. JOLAYEMI (2011) 1 NWLR (Pt.1258) 320 at 356.

The appellant referred to the notice of appeal signed by “OLATUNDE OLASHORE ESQ” and submitted that it is the notice of appeal that gives the court the jurisdiction to entertain this appeal PEAK MERCHANT BANK LTD. V. NIGERIAN DEPOSIT INSURANCE CORPORATION (2011) 12 NWLR (1261) 253 at 262. The appellant contended that the judgment of the lower court is a valid judgment and that the respondents did not file a cross appeal or a respondent’s notice urging the Court to affirm the judgment on the ground that the statement of claim was not signed by counsel. On this point, the appellant referred the Court to the case of AROWOLO V. ADESINA (2011) 2 NWLR (pt.1231) 315 329 – 330.

It was further submitted by the appellant that this Court could raise an issue suo motu but such an issue must be a live issue. The case of OKONJI & ORS. V. NJOKANMA & ORS. (1999) 14. NWLR (pt.638) 250 at 266 was cited and relied on. The appellant argued that the issue raised suo motu by the court is not a live issue in the appeal – OGUNDELE V. AGIRI (2009) 18 NWLR (Pt.1143) 219 at 246.

The appellant finally urged the Court to proceed with the merit of the case in the interest of the litigants as the Supreme Court did in Ogundele’s case.

In reply, Mr. Biodun Badiora (PSC, Osun State), learned counsel for the respondents, argued that the statement of claim signed by “TUNDE OLASHORE & CO” offended the provisions of sections 2(1) and 24 of the Legal Practitioners’ Act, Cap. 2007 Laws of the Federation of Nigeria, 1990. Relying on the cases of OKETADE V. ADEWUNMI & ORS . (2010) 4 SCM 1 at 7 and OKAFOR & ORS. V. NWEKE & ORS. (2007) 5 SCM 180 at 187 the respondents contended that a process signed by a law firm remains incompetent. The respondents argued that Order 5 rule 12 (1) of the High Court (Civil Procedure) Rules of Oyo State relied upon by the appellant was inapplicable because the said rule referred to writ of summons and not statement of claim, as in this case.

The learned counsel for the respondents referred to Order 4 rule 4 of the Rules of this Court and submitted that the Court is not limited to the notice of appeal and that the Court rightly raised the issue suo motu.

Order 5 rule 12 (1) of the High Court (Civil Procedure) Rules of Oyo State Provide thus:

“Where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the plaintiff’s address and the legal practitioner’s name or firm and a business address of his within the jurisdiction and also, if the legal practitioner is the agent of another the name or firm and business address of his principal.”

As can be seen from Order 5 rule 12(1) of the High Court (Civil Procedure) Rules reproduced above, a writ of summons, the process by which this suit was commenced could be endorsed by a law firm as it was done in this case.

In ordinary civil suits, a writ of summons is the foundation or substratum of a law suit where it is required to be commenced by a writ of summons. It is on the writ of summons that all other processes – statement of claim, statement of defence, counter claim, reply, motions, and all interlocutory processes are laid. Where the writ of summons is defective, incurably defective, the foundation of the suit is gone and there is nothing upon which other processes in the suit can stand. However, where the writ of summons is sound, being competent, other processes can be properly laid on it.In the instant case, the writ of summons is competent, and there has been no argument about this. The respondents argued that Order 5 rule 12 (1) of the High Court (Civil Procedure) Rules of Oyo State relied upon by the appellant was inapplicable to this case. I agree with the respondents. However, I am of the view that this appeal ought to be heard on its merit because a comparison of the signatures on the writ of summons and the appellant’s notice of appeal clearly shows that they are the same.