PRACTICE AND PROCEDURE – SIGNING OF COURT PROCESS(ES) – Effect of a court process signed in the name of a law firm; whether same can be amended
“It is not in doubt that, by virtue of rules and practice of the Courts in this country, a condition precedent necessary to validate an originating process is that it must contain therein a signature of either the appellant or appellant’s counsel. See Okpe v Fan Milk Plc and Anor (2016) LPELR-42562 (SC); Nigerian Army v Samuel [2013] 14 NWLR (pt. 1375) 466, 482; Kida v Ogunmola [2006] 13 NWLR (pt. 997) 377. Section 2 (1) of the Legal Practitioners Act reads: Subject to the provisions of the Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll. On its part, Section 24 of the Legal Practitioners Act provides thus: In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say – Legal practitioner’ means a person entitled in accordance with the provisions of this Act to practise as a barrister or as a barrister and a solicitor, either generally or for the purpose of any particular office or proceedings. The purpose of the foregoing sections is to ensure that only a legal practitioner whose name is on the roll of this Court should sign Court processes. A firm of lawyers is not a legal practitioner within the meaning and intendment of Section 24 of the Act. The effect of signing an originating process by a law firm is that such process is, fundamentally, defective. It is therefore incompetent. An originating process confers jurisdiction on a Court. Thus, where such process is incompetent, the jurisdiction of such Court to entertain the matter is ousted. See Okpe v Fan Milk Plc and Anor (supra), S.L.B Consortium v N.N.P.C [2011] 9 NWLR (pt. 1251) 317, Kente v Ishaku (2017) LPELR-4207 (SC) and Madukolu v Nkemdilim [1962] 2 SCNLR 341. Such an incompetent process cannot be amended. Any attempt to amend such a process would amount to attempting to foist jurisdiction upon the Court. This cannot be for it is settled law that jurisdiction is a creation of statute. It is not, therefore, a creation of the parties or counsel. See W.A.E.C v Adeyanju [2008] 9 NWLR (pt. 1092) 270, Adigun and Ors v The Attorney-General of Oyo State and Ors [1987] 2 NWLR (pt. 56) 197; [1987] 3 SCNJ 118, Ugwuh v Attorney-General East Central State [1975] 6 SC 13, National Bank of Nigeria Ltd v Weide and Co. (Nig.) Ltd and Ors [1996] 10 SCNJ 147. The decision in Okafor v Nweke [2007] 10 NWLR (pt. 1043) 521 has assumed a pre-eminent position in the jurisprudence of permissible signatures on Court processes in this country. The consistent posture with which the Courts in this country have followed this decision takes care of the first question raised for determination in this appeal. Only a handful will be cited here: Ajibode and Ors v Gbadamosi and Ors (2021) LPELR-53089 (SC), Salami v Muse (2019) LPELR- 47038 (SC), Yusuf v Mobil Oil (Nig.) Plc. [2020] 3 NWLR (pt. 1710), Braithwaite v Skye Bank Plc [2012] LPELR-15532 (SC) and Ministry of Works and Transport, Adamawa State v Yakubu [2013] 6 NWLR (pt. 1351) 481. Based on the foregoing, the judgment delivered by the trial Court in the instant case is a nullity, as it lacked jurisdiction to entertain the suit ab initio.” Per CHIMA CENTUS NWEZE, JSC in YONGO & ORS v. HAANONGON & ORS (2022-LCER-46535-SC) (Pp 14 – 17; Paras F – C)
Facts
This is an appeal against the judgment of the Court of Appeal, Makurdi Judicial Division.
The appellants by Writ of Summons and Statement of Claim instituted the action before the High Court of Benue State claiming for declaration of title to land among other claims.
On her part, the 1st respondent counter-claimed for trespass and perpetual injunction. At the conclusion of the hearing, the trial Court dismissed the appellants’ case and granted the counter-claim of the 1st respondent. The appellants’ case on appeal was also dismissed and the judgment of the trial Court was affirmed. Dissatisfied, the appellants appealed to the Supreme Court. The Respondent at the Supreme Court raised a Preliminary objection challenging the competence of the appeal.
Issues
The Preliminary Objection was determined on a lone issue viz: “Whether the learned trial Judge had jurisdiction to entertain the suit when the Writ of Summons and Statement of Claim dated and filed on 24/10/2001 were signed by Albert Yawe & Co in breach of the provisions of Sections 2(1) and 24 of the Legal Practitioners, 1975.”
Lead Judge(ment)
ADAMU JAURO, J.S.C. (Delivering the Leading Judgment)
Held
In a unanimous decision, the Preliminary Objection was upheld and the appeal was struck out for want of competence.
Alternate Citations
(2022) LPELR-57282(SC)
Full Judgment
Counsel:
HELEN M. GBOR, ESQ.
For Appellant(s)
JOHNNY AGIM, ESQ.
for 1st Respondent
MATHIAS IKYAV, ESQ., Senior State Counsel, Ministry of Justice, Benue State –
for 2nd and 3rd Respondents
For Respondent(s)
For Appellant(s)
For Respondent(s)
Counsel’s Photograph(s) Needed.