Skypower Express Airways Ltd V. Uba, Plc & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED LAWAL GARBA, J.S.C. 

This appeal is against the judgment of the Lagos Division of the Court of Appeal (lower Court) delivered on the 25th November, 2015 in favour of the 1st Respondent who was the Appellant therein.

Briefly, the facts which led to the appeal before the lower Court are that the Appellant had sued the Respondents before the Lagos State High Court (trial Court) vide a writ of summons dated 11th May, 2000 and claimed the following reliefs:

“1. A Declaration that the plaintiff is the owner of and entitled to the various sums of money totaling N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) paid into the 2nd Defendant’s Account No. 201-01874-2 with the 1st Defendant between 24th November and 2nd December 1998 on the inducements of the 1st Defendant.

2. A Declaration that the failure, refusal and or neglect by the 1st Defendant to refund or pay back the said sum of N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) to the plaintiff amounts to unlawful conversion of or an improper dealing with the plaintiff’s fund and a breach of trust as well as a breach of contract.
3. A Declaration that the purported transfer by the 1st Defendant of the plaintiff’s N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) paid into the 2nd Defendant’s Current Account No. 201-01874-2 on the inducement of the 1st Defendant to Allied Internal Ltd, if true is improper, irregular, wrongful, null and void.
4. AN ORDER setting aside the purported transfer of the Plaintiff’s funds being N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) kept in the 2nd Defendant’s Current No. 201-01874-2 to Allied International Ltd, on the purported mandate of the 2nd Defendant’s Managing Director Alhaji Yunusa.
5. AN ORDER directing the 1st Defendant to refund and pay back to the plaintiff the sum of N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) which the 1st Defendant induced the plaintiff to pay into the 2nd Defendant’s Current Account No. 210-01874-2 to be held in trust for purpose of transfer to the Plaintiff’s Account No. 201-019366 when finally established, the sum with interest at 21% per annum, being the current bank rate from 3rd December, 1998 until date of judgment and thereafter till final payment.

Alternatively

The sum of N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) against the 1st Defendant being monthly had and received by the 1st Defendant for purposes of opening a Current Account for the Plaintiff, which purpose has failed, with interest at 21% per annum from 3rd December, 1998 until final judgment and thereafter until final payment.

6. N10 million being damages for deceit and fraudulent representations and or misstatements, improper inducements and unlawful deprivation of the use of legitimate funds further to which the plaintiff may suffer damage.”

The claims were denied by the Respondents in their respective Statements of Defence and at the end of trial, judgment was entered in favour of the Appellant on the 30th May, 2008 by the trial Court.

​Aggrieved, the 1st Respondent appealed against that judgment to the lower Court, which, as stated above, allowed the appeal on the ground that the originating processes, i.e; the writ of summons and the Statement or Claim were both signed in the name of a Law Firm and not by the Legal Practitioner known to law and so incompetent.

The appeal was brought vide the Notice of Appeal dated the 3rd December, 2015 on seven (7) grounds and in the Appellant Brief filed on the 17th March, 2016, six (6) issues are set out for determination as follows:-

“i. Whether the lower Court was right by striking out the appellant’s preliminary objection to the competence of the appeal as well as the jurisdiction of the Court to entertain the same and assuming jurisdiction over the matter. This relates to grounds one of the grounds of appeal.

ii. Whether the lower Court was right and did not act in excess of its jurisdiction when it held that the suit was not initiated in accordance with or by the due process of law and as such the suit was incompetent ab initio thereby rendering the judgment delivered by the Court on 30th May 2008 null and void. This issue is relative to grounds 2 & 3.

iii. Whether the lower Court was right when it failed to distinguish 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 as well as apply the principle in Ogundele v. Agiri (2009) 18 NWLR (pt. 1173) 219 and hold that the signature ‘J. O. Esezoobo’ makes it an exception to the cases. This is relative to ground 4.

iv. Whether the lower Court was right and did not violate the appellant’s fundamental right to a fair hearing guaranteed by Section 36(1) of the 1999 Constitution, as amended, when it held that ground one of the 1st Respondent’s Further Amended Notice of Appeal dated 17th October 2012 was competent and required no leave of the Court to validate it. Relative to ground 5.

v. Whether the lower Court properly came to the conclusion that “the Appellant’s complaint (in ground two) flows from the decision of the lower Court wherein the Court decided in favour of the 1st Respondent that the transfer of the money in contention was wrong” and consequently holding the appeal competent. Relative to ground 6.

vi. Whether the lower Court was right and did not violate Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, by failing to hear the case within a reasonable time until seven (7) years from 2008 to 2015 such as renders the judgment of the lower Court a nullity. This is relative to ground 7 of the Notice of appeal.”

Three (3) issues are said to arise from the grounds of the appeal for decision by the Court, in the Amended 1st Respondent’s Brief filed on the 10th September 2021, they are in the following terms:-

“(i) Whether the lower Court was right when it held that the Appellant’s action at the lower Court was incompetent ab initio having been initiated by a Writ of Summons and Statement of Claim which were not signed by a legal practitioner?” (Grounds 2, 3 and 4).

(ii) Whether the lower Court was right when it struck out the Appellant’s preliminary objection dated 24 March, 2014?” (Grounds 1, 5 and 6).

(iii) Whether the length of the proceedings as the lower Court amount to a breach of the Appellant’s fundamental right to fair hearing?” (Ground 7).”

There is no record that the 2nd Respondent, who was duly served with all the material processes in the appeal, filed a brief of argument or any other process for the prosecution of the appeal. The 2nd Respondent was also not represented at the oral hearing of the appeal on the 12th October, 2021 when the learned counsel for the Appellant and 1st Respondent adopted their respective briefs. The Appellant also filed the Appellant’s Reply Brief on 26th September, 2018.

As stated above, the lower Court allowed the appeal by the 1st Respondent on the sole ground that the originating processes were incompetent for being signed in the name of a Law Firm and not a legal practitioner. The suit was struck out for incompetence and want of jurisdiction on the part of the trial Court to entertain and adjudicate over it.

The crucial issue which requires determination first, is whether the lower Court is right in law in that decision. Although, the appellant also challenges the competence of the 1st Respondent’s Notice of Appeal in the lower Court, in the absence of or without the requisite jurisdiction on the part of the trial Court, if it turns out, to entertain and conduct proceedings in the Appellant’s suit initially, then the issue or question of an appeal; competent or incompetent, against the outcome of the purported proceedings conducted in the suit, would not arise. This Court, per M. D. Muhammad, JSC, in the recent case of NNPC v. Roven Shipping Ltd. (2019) NWLR (pt. 1676) 67 at 92, restated the law that:-

“A decision arrived at a Court without jurisdiction, being null and void, can never be the basis of a competent appeal or further litigation.”

His lordship referred to and relied on the decisions in Fadiora v. Gbadebo (1978) 3 SC, 219 and Bamishebi v. Faloye (1987) 2 NWLR (pt. 54) 51.

The very intrinsic and extrinsic nature of the issue of jurisdiction in judicial proceedings of a Court of law and the fatal consequence on the part of a Court to entertain an action, are of considerable antiquity to be elementary in our judicial jurisprudence now. Madukolu v. Nkemdilim (1962) 1 All NLR, 587, (1962) 2 SCNLR 341 is the decision often referred to and relied on for the fundamental and crucial nature of the issue of jurisdiction in judicial proceedings of a Court of law and, named by many, as the “Locus classicus” on the issue.

The law is also firmly established that 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 on other issues in the matter in order to avoid an exercise in futility. See Madukolu v. Nkemdilim (supra), Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 7 SC, 158, (1983) 1 SCNLR, 1172, U.D. U.S. v. Kraus Thoumpson Org. Ltd. (2001) 15 NWLR (pt. 376) 305, Obiuweubi v. CBN (2011) 7 NWLR (pt. 1247) 46, Bankole v. Dada (2003) 11 NWLR (pt. 830) 174, NDIC v. CBN (2002) 7 NWLR (pt. 766) 272.

The Appellant’s arguments on the issue, which is argued under the Appellant’s issues two and three at pages 7 – 14 of the Appellant’s Brief, are to the effect that the person who signed page 2 of the Record of Appeal is identifiable by the name written on it and not in doubt and that the lower Court was wrong to have relied on the decisions in Okafor v. Nweke (2007) 10 NWLR (pt. 1252) 317 and FBN, Plc v. Maiwada (2013) 5 NWLR (pt. 1348) 444 to hold that the Appellant’s suit was not initiated by due process of the law to deprive the trial Court of the jurisdiction to entertain it. Learned counsel pointed out and maintains that J. O. Esezobo who signed page 2 of that Record of appeal and all other processes, is different and clear from J. Odion Esezobo & Co. written thereunder and so the facts in the aforenamed decisions are distinguishable from the facts in the Appellant’s case. He argues that where the signature is the name of counsel, as in the Appellant’s case, it cannot be ascribed to a law firm since it is not a mere mark or contraption that is not identifiable. Dankwambo v. Abubakar (2016) 2 NWLR (pt. 1495) 157 at 180/184, 187 and 194/196 was referred to. It is his further argument that with the signature “J.O. Esezobo” being clearly the name of the person who signed, the identity of the person who appended the signature was no longer in doubt, citing Hamzat v. Sanni (2015) 5 NWLR (pt. 1453) 486 at 498 — 499 and 505 — 507 on the difference between “shall sign” and “shall endorse” in respect of processes of Court provided for in the Rules of the trial Court.

Learned Counsel urged the Court to resolve the issue in favour of the Appellant.

The 1st Respondent’s arguments on the issue are that the law is settled 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 law firm is incompetent. Reliance was placed on Peak Merchant Bank Ltd. v. NDIC (2011) 12 NWLR (pt. 1261) 253 at 201 – 202, SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) 317, the facts of which are said to be similar to the Respondents’ case, FBN v. Maiwada (supra), Framphino Pharm. V. Jawa Int. Ltd. (2013) 5 NWLR (pt. 1348) 444 and SPDC Ltd. v. Sam Royal Hotel Nig. Ltd. (2016) 8 NWLR (pt. 1514) 318. Learned counsel referred to Order 17 Rule 4 of the Trial Court Rules and contends that the arguments of the Appellant do not appreciate the purport of the decisions in SLB Consortium Ltd. v. NNPC and Okafor v. Nweke (both supra) in which, contrary to the arguments, do not create “exceptions and borderline cases” but restated the law that an originating process signed in the name of a law firm, is incompetent. He maintains that the Appellant’s writ and Statement of Claim issued by “J. Odion Esezobo & 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 incompetent. That a party cannot condone or waive lack of jurisdiction on the part of a Court to entertain and action, on the authority of Ugo v. Okafor (1996) 3 NWLR (pt. 438) 542 and Ijebu-Ode Local Government v. Adedeji (1991) 1 NWLR (pt. 166) 136, Adeyemi v. Opeyori (1976) 9 – 10 SC, 31 at 49, 51 – 52 and Kasikwu Farms Ltd. v. A. G. Bendel State (1986) 1 NWLR (pt. 19) 693 at 703 – 704.

In the Appellant’s Reply Brief, it is maintained that the facts in FBN, Plc v. Maiwada (supra) are not similar to the Appellant’s case.

RESOLUTION:

The law is now firmly settled beyond arguments, and the learned counsel for the parties acknowledge and agree, that an originating Court process employed or used for the invocation of a Court’s jurisdiction over an action or matter which was signed in the name of a Law Firm is incurably incompetent and incapable of igniting or invoking the requisite jurisdiction of the Court to entertain the action or matter for being in contravention or breach of the provisions of Sections 2 (1) and 24 of the LPA and Rules of Courts.

​This is the position established, stated and restated in the decisions in Okafor v. Nweke, SLB Consortium v. NNPC and FBN, Plc v. Maiwada (all supra) and the underlining principle decided by this Court in these cases is that once a Court process is signed in the name of Law Firm and the person whose signature was appended cannot be identified to be a legal practitioner entitled to practice law by virtue of the provisions of Sections 2 (1) and 24 of the LPA, then such a process is incurable incompetent. The import of the decisions is that non-compliance with the provisions of Sections 2(1) and 24 of the LPA, as a matter of substantive law, affects and deprives a Court of the jurisdiction to entertain and adjudicate over such a Court process, as an initiating process, which is therefore liable to be struck out. Madukolu v. Nkemdilim (supra), Ebhodagbe v. Omokhafe (2004) 12 SCNJ, 106, Obi v. INEC (2007) 7 SC, 268.

​The question whether a Court process filed in Court was signed in the name of an identifiable person or in the name of a law firm is and can easily be determined by a physical view, close look and consideration of the process itself by the Court.

​The Court processes in this appeal are the writ of summons at pages 1 – 3 and the statement of claim at pages 4 – 11 of vol. 2 of the Record of Appeal, which appear thus:-

“ … “

Even a casual and passing glance at these processes would clearly show, beyond reasonable argument, that each was signed with a signature above, for and on the name of “J. Odion Esezobo & Co.” indicated to be counsel plaintiff. It is plain that the signature does not reveal, signify or identify, precisely, the name of the person who appended the signature or signed for the law firm, said to be the counsel to the plaintiff on any of the processes. The signature itself does not portray the name of the person who inscribed it for the purpose of accurate identification and proper authentication. “Signature” is defined in the 9th Edition of the Black’s Law Dictionary, page 1507, to mean, among others:-

“1. A person’s name or mark written by that person or at the person’s direction.

“the signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of this signer.” The word “sign” is also defined on the same page, to mean, inter alia:-

“To identify (a record) by means of a signature, mark, or other symbols with the intent to authenticate it as an act or agreement of the person identifying it.” See also Onward Ent. Ltd. v. Olam Int. Ltd. (2010) All FWLR (pt. 531) 1503 at 1512.

In SLB Consortium Ltd. v. NNPC, (supra) this Court, per Rhodes-Vivour, JSC underscored the importance of the way counsel chooses to sign a Court process and how all processes to be filed in Court shall be signed by Counsel. His Lordship explained that:-

“Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the Law (i.e. the Legal Practitioners Act). All processes filed in Court are to be signed as follows:-

First, the signature of counsel, which may be any contraption.

Secondly, the name of Counsel clearly written.

Thirdly, who counsel represents.

Fourthly, name and address of Legal Firm.”

This position was restated by the Learned Law lord in the case of Nigerian Army v. Samuel (2013) 14 NWLR (pt. 1375) 446 at 485 to settle the appropriate manner, way or mode for proper and valid signing of all Court processes by Counsel representing parties recognised by the law. Any Court process not signed by a legal practitioner representing a party as specifically stated and in the specified manner, is not a Court process signed in accordance with or recognised by law since it will not be a process signed by an identifiable person who could be attributed the competence to sign same.

The undeniable fact in the case of the Appellant in this appeal is that both the writ of summons at page 2 and the statement of claim at pages 4 – 11 of vol. 2 of the Record of Appeal, which clearly and expressly, though mutedly, speak for themselves, are signed by way of a contraption as a signature, over, for and in the name of the law firm of “J. Odion Esezobo & Co.” The contraption or signature is not/does not represent the name of any identifiable person. In his brief of argument, the learned counsel for the appellant has strenuously contended that the signature is the name of counsel for the plaintiff and it is not just a contraption. However, an objective look at the signature shows not even a semblance of a specific and identifiable name, which by the prescription of the Court in SLB Consortium Ltd. v. NNPC and Nigerian Army v. Samuel (above, supra) is required to be “clearly written” in addition to any contraption which may be inscribed or appended as a signature of counsel to the processes. On the two (2) processes, only a signature appears and was inscribed without any name specifically, distinctly and clearly written so as to identify the person who made the contraption of the signature thereon.

The signature was inscribed or appended, as a contraption, over or on top of the name of the Law Firm of “J. Odion Esezobo & Co.” clearly indicating and showing that they were both signed on behalf of and in the name of the said law firm, as counsel for the plaintiff. In the words of Mukhtar, JSC (later CJN) in SLB Consortium Ltd v. NNPC (supra):-

“It is instructive to note here that the requirement for the name of the Legal Practitioner to be given, is necessary and important. The emphasis here is on the name together with the signature.”

Rhodes-Viviour, JSC, concluded that:-

“A signature without the name is incurably bad. ”

In the foregoing premises, the facts of the appellant’s case on the competence of the initiating processes filed at the trial Court are substantially similar, even the same, as those considered and decided upon by this Court in the cases of Okafor v. Nweke, SLB Consortium Ltd. v. NNPC and FBN, Plc v. Maiwada referred to and relied on by the lower Court to hold that the said processes for being signed in the name of Law Firm, are incurably bad and incompetent and the action for not being initiated in line with due process of the law, was incompetent and liable to be struck out.

Perhaps, I should state that since the two (2) processes in the Appellant’s case have been demonstrated to have been signed in the name of a law firm and not by a Legal Practitioner known to law, the issue of the provisions of the trial Court’s Rules as to who has the duty to issue and “sign” or “endorse” a writ of summons is non-sequitur in the determination of the competence of the processes in question. The case of Hamzat v. Sanni (supra) therefore becomes irrelevant in the circumstances.

I resolve the issue in favour of the 1st Respondent and against the Appellant.

​The resolution of the issue has effectively and completely subsumed the other issues raised in the appeal since in the absence of the requisite jurisdiction to entertain and conduct valid proceedings on the part of the trial Court, no competent issue could arise for consideration out of the action.

In the final result, the incompetent initiating processes are hereby struck out and the appeal dismissed.

Parties shall bear their respective costs of prosecuting the appeal.

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SC.80/2016