Chief Ajibola Aribisala San V. Asset Management Corporation of Nigeria (2008)
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JAMILU YAMMAMA TUKUR, J.C.A.
This is an appeal against the Ruling of the Federal High Court Lagos Division in SUIT NO: FHC/L/CS/513/2015 delivered by Honourable Justice M.B Idris on 2nd July, 2015, wherein the Court delivered a Ruling in favour of the Respondent.
The material facts of the proceedings culminating in this appeal are that the Respondent instituted an action vide a Writ of Summons dated 15th April, 2015, seeking certain reliefs against the Appellant revolving around dissatisfaction with the Appellant?s Receivership of the Delta Steel Company Plc.
Upon the service of the Writ of Summons and other requisite processes on the Appellant, the Appellant filed a Memorandum of Conditional Appearance dated 5th June 2015, and an application essentially seeking an order of the lower Court striking out the suit on the ground of lack of jurisdiction based on an invalid Writ of Summons.
?In a Ruling dated 2nd July, 2015, the learned trial Judge found that the Writ of Summons was valid; properly signed by Dr Joseph Nwobike SAN, as legal practitioner for the
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Respondent; and the placing of the signature on the third page of the Writ of Summons amounted to a permissible modification to the form of Writ of Summons. He consequently refused to strikeout the Writ of Summons and the suit.
Dissatisfied with the above, the Appellant appealed to this Court vide a Notice of Appeal dated 14th July, 2015, and filed on 15th July, 2015.
The Appellant?s 2nd Amended Brief of Argument settled by Tayo Oyetibo SAN, is dated 23rd May, 2018 and filed on 25th May, 2018, but deemed as properly filed on 22nd October, 2018. Appellant?s Reply Brief is dated and filed on 11th October, 2018, but deemed as properly filed on 22nd October, 2018.
Appellant?s counsel formulated a sole issue for determination to wit:
Whether the lower Court was not wrong in law in holding that it has jurisdiction to entertain the suit when the Writ of Summons by which the suit was commenced was not properly signed by the Respondent or its legal practitioner.
On the other hand, the Respondent?s Brief of Argument settled by Kunle Gbolahan, Esq., is dated and filed on 2nd October, 2018, but deemed properly filed on 22nd October, 2018.<br< p=””
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Respondent?s counsel also formulated a sole issue thus:
Whether the writ of summons by which the Respondent commenced Suit No: FHC/L/CS/513/2015: Asset Management Corporation of Nigeria v. Chief Ajibola A. Aribisala, SAN is competent in law.
An examination of the above issues raised by both parties revealed that they are substantially the same. I therefore adopt Appellant?s issue for the purpose of convenience in determining this appeal.
ISSUE:
WHETHER THE LOWER COURT WAS NOT WRONG IN LAW IN HOLDING THAT IT HAS JURISDICTION TO ENTERTAIN THE SUIT WHEN THE WRIT OF SUMMONS BY WHICH THE SUIT WAS COMMENCED WAS NOT PROPERLY SIGNED BY THE RESPONDENT OR ITS LEGAL PRACTITIONER
Learned senior counsel for the Appellant argued that the lower Court lacked jurisdiction to entertain the suit grounding this suit because one of the fundamental requirements for the assumption of jurisdiction by the Courts was absent.
He relied on the following cases:
SPDC v. Anaro (2015) LPELR-24750 (SC); Akere v. Governor of Oyo State (2012) 12 NWLR (Pt.1314) 240; Madukolu v. Nkemdilim (1962) 2 SCNLR 342;
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Galadima v. Tambai (2000) 6 SC (Pt.1) 196; Araka v. Ejeagwu (2000) 12 SC (Pt.1) 99; and Dangana & Anor v. Usman &Ors (2012) 2 SC (Pt.1) 99.
Learned senior counsel also argued that the Writ of Summons is invalid because it was not signed by the Respondent nor its Legal Practitioner, as the purported signature of the Legal Practitioner which was affixed on a separate piece of paper attached to the writ, did not meet with the mandatory requirements of the lower Court?s Rules, which are to the effect that the front and reverse side of the writ must contain certain essential endorsements.
He relied on:
Order 3 Rules 4, 11(1), 12(1) and (3), Order 4 Rules 1 and 5(2) of the Rules of the Federal High Court; University of Nigeria Teaching Hospital Management Board & Anor v. Hope Chinyelu Nnoli (1994) 8 NWLR (Pt.363) 376.
Learned Senior counsel submitted that the trial Court?s holding to the effect that the actions of the Respondent?s amounted to a permissible modification of the writ based on Order 3 of the Federal High Court Rules and Section 23 of the Interpretation Act, is wrong because the issue of modification can only come after, and can only be done to
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a valid writ of summons. He further argued that if the Writ of Summons had been valid, but did not have enough space to contain all the reliefs, then reliefs may be added to it by the use of an extra sheet, which has been previously referred to as an ?allonge?, that the space meant for certain items, cannot be used for others arbitrarily.
He relied on:Janet Alatede v. Joseph Jeje Falode & Anor (1966) 1 ALL NLR 101; and Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 @ 565.
He also submitted that the basis of the attack on the lower Court?s jurisdiction is not a technical point, but one based on the conditions for the invocation of the Court?s jurisdiction and failure to meet with the mandatory provisions of Order 3 Rules 12(3) of the Rules of the lower Court, which must be obeyed and that it is now well settled that the issue of signature on a Court process is not a mere irregularity, but goes to jurisdiction.
He relied on the following cases:
Ogundele v. Agiri (2009) 18 NWLR (Pt.1173) 219; Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521; SLB v. NNPC (2011) 9 NWLR (Pt.1252) 317; Ministry of Works and
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Transport Adamawa State v. Yakubu (2013) 6 NWLR (Pt.1351) 481 at 496; Yaya Sammah v. Mr. Samuel Oluwole Ojo (2013) LPELR-22020 (CA); Okarika v. Samuel (2013) LPELR-19935(SC); Ezenwa v. K.S.H.S.M.B (2011) 9 NWLR (Pt.1251) 89 CA; and Aiki v. Idowu (2006) 9 NWLR (Pt.984) 47.
On the other hand, learned counsel for the Respondent argued that contrary to the Appellant?s argument, there is nothing in Order 3 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009, and the entire Rules that mandates a Plaintiff to endorse all his claims, name, signature and address of his Legal Practitioner on the reverse side of the Writ of Summons and there is no provision in the Rules that limits Civil form 1 to just one page consisting of the front page and reverse page only.
Learned counsel also argued that the Appellant is not permitted to read into the provisions of the Rules what is not contained therein and the Court is not empowered to add to the provisions of the Rules, what was not contemplated therein.
He relied on the case of Miss Nkiru Amobi v. Mrs Grace Nzegwu & Ors (2014) 2 NWLR (Pt.1392) P.510 at 545-546, paras G-B.
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Learned counsel submitted that assuming the Federal High Court (Civil Procedure) Rules 2009 provides that the reverse side of a Writ of Summons must contain the name, signature and address of a Legal Practitioner, Order 3, Rule 4 of the same Rules provide for modification and variation to the effect that the signature and address of the Respondent?s counsel flowing into the third page of the writ of summons due to the number of reliefs sought by the Respondent is appropriate, especially as the Appellant was not misled in line with Section 23 of the Interpretation Act, Cap 123, LFN, 2004.
He relied on the case of AG Anambra State & Ors v. AGF & Ors (1993) 6 NWLR (Pt.302) 692.
He also submitted that contrary to the arguments of Appellant?s counsel, the issue in this appeal is a technical one; that the cases of Uwazuirike v. AGF and Chief of Army Staff v. Isah relied upon by the Appellant are inapplicable to the facts of this appeal, and that in Uwazuirike?s case, the situation was that instead of the Appellant signing the notice in a criminal appeal, his legal practitioner did; and that whether or not the issue is a
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technical one, no procedural irregularity should vitiate an action once it can be shown that the other party was not misled or prejudiced.
Learned counsel then made an attempt to distinguish the facts of this appeal from that of the case of Janet Alatede v. Joseph Jeje Falode & Anor (1966) All NLR 101, on the grounds that the case in question was decided in 1966; it was not decided on the extant provisions of the Rules of the lower Court or any similar provision in any extant Rules of Court; unlike Order 2 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules upon which that case was decided, Order 3 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009 allows a Plaintiff to modify or vary the form of a writ of summons; and the Plaintiff here did not type its endorsements on a separate sheet of paper and paste it on the reverse side of the writ of summons.
He also submitted that all the cases relied upon by the Appellant with regards to signature have no bearing with the facts and circumstances of this appeal, as they either dwelt on signing of Court processes in the name of a law firm, a counsel not signing Court processes at all or not dating same.
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In the reply brief, learned senior counsel for the Appellant submitted that the Respondent?s counsel tacitly conceded that the writ of summons is irregular through modification leading to failure to sign the writ on either of its two sides.
Senior counsel also submitted that whether the Appellant was misled is immaterial to the question at hand, which is whether the modifications were permissible. He further submitted that the modifications in question are significant, material and of the effect that the Court has no jurisdiction to entertain the action.
He relied on the case of Onwukwe v. Iwuchukwu (2017) LPELR-41584(CA).
RESOLUTION
An originating process such as a claim, a writ of summons, an originating summons, a petition, a notice of appeal and such like, is the very foundation upon which a case or an appeal stands, without which it would definitely fall. This is the same kind of logic contained in the cliche: ?you cannot put something on nothing and expect it to stand?. The practical effect of this is that a defective writ of summons cannot bestow jurisdiction on the Court below. The Supreme
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Court gave a wholesome exposition of the above in the case of OKPE v. FAN MILK PLC & ANOR(2016) LPELR-42562 (SC) (P. 36, Paras. A-D) Per MUHAMMAD, J.S.C., thus:
“An originating process is the foundation stone of any proceedings in any Court. It thus, affects the jurisdiction of that Court. No Court of law can assume jurisdiction through a defective originating process. If it does, the proceeding however well conducted will amount to a nullity. As a nullity, nothing more can competently be considered in this appeal. All other issues formulated by the respective parties collapse and are accordingly struck out.”
See: KENTE v. ISHAKU & ORS (2017) LPELR-42077(SC); OKON & ORS v. ANSA & ORS (2018) LPELR-44304(CA); and AKINGBOLA & ANOR v. IGBE & ORS(2018) LPELR-44155(CA).
It is also indubitable that it is primarily the Rules of a Court that would prescribe what would constitute a valid originating process for that Court, and that such provisions are not to be trifled with. It is now settled that the rules of Court are not a mere guide or directions, but a key source of adjectival law that governs the procedural aspects of how cases are
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brought, processed and dispensed with by our Courts. The Supreme Court gave the foregoing a judicial stamp of approval in the case of IWUNZE v. FRN (2014) LPELR-22254(SC)(Pp. 38-39, paras. G-B) Per OKORO, J.S.C., where it held thus:
“Again, rules of Court are meant to be obeyed. They are not made for the fun of it. They must be followed strictly, unless the Court is given discretion under them. These rules bind all parties before the Court. No party is allowed to choose when or which to obey and/or disobey. See G.M.O. Nworah & Sons Co. Ltd. V. Afam Akputa (2010) 9 NWLR (pt. 1200) 443, Ajayi & Anor. V. Omorogbe (1993) 6 NWLR (pt. 301), Akanbi & Ors V. Alao & Anor. (1989) 5 SCNJ 10 at 13, Miss Ezeanah V. Alhaji Atta Mamoud (2004) 7 NWLR (pt 873) 468 at 502.”
See: MC INVESTMENTS LTD. & ANOR. v. CORE INVESTMENTS & CAPITAL MARKETS LTD.(2012) LPELR-7801(SC); OBARO V. HASSAN(2013) LPELR-20089(SC); and RUKUJE v. DEBA(2018) LPELR-44422(CA).
The bone of contention in this appeal however is not the scope or bindingness of the Federal High Court (Civil Procedure) Rules, 2009, with regards to how a writ of summons is to be created or elements of
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its validity, but the pith of the disagreement is whether the Writ of Summons dated 15th April, 2015, by which the suit grounding this appeal was filed, is valid in light of the relevant provisions of the Rules. It therefore logically follows that a determination of the issue at stake herein can only be achieved upon an examination of the rules of the lower Court.
Now Order 3 Rule 4 of the Federal High Court (Civil Procedure) Rules provides thus:
Except in cases in which different forms are provided for in these Rules, the Writ of summons shall be in Form 1 with such modifications or variations as circumstances may require.
Two principles are immediately clear from the above, which are:
1. The Writ of Summons should follow the sample or precedent in Form 1 terms of form and contents; and
2. The Form adopted may be changed, albeit not in a fundamental manner, in order to meet certain circumstances that may arise.
?The question that immediately comes to mind therefore is what are the contents of Form 1 and in what order do they come in? A corollary to this is whether the Writ of Summons filed by the Respondent at the lower Court
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complied with the form and the answer is in my view in the affirmative. All the essentials of a writ of summons were therein contained, with the only difference with the form, if any, being that it is more than a single page due to the amount of reliefs contained therein.
The words used in the rules in question are clear and straightforward. Thus, I applied their ordinary meaning in line with the settled position of the law that except where the ordinary meaning of words used in a statute would result in absurdity, the Court should give effect to them.
See: AG OF LAGOS STATE v. AG OF THE FEDERATION & ORS (2014) LPELR-22701(SC); and Afolabi v. Tejuoso & Anor (2017) LPELR-42543(CA).
The use of forms is not a strange or esoteric concept in law and the legal practice. It is basic that except in circumstances where the law providing for the use of a form provides that it cannot be modified, then slight modifications which are based on the circumstances would not affect the validity of the document produced.
?Appellant?s counsel made arguments to the effect that there are certain mandatory provisions of the rules of the lower
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Court which the Writ of Summons in question did not comply with, primarily the position of the signature, which he has argued must be on the face or reverse side of the Writ.
Order 3 Rules 11 and 12 provides thus:
11.(1) Originating process shall be prepared by a Plaintiff or the plaintiff’s legal practitioner, and shall be clearly printed in black ink on white opaque A4 paper of high quality.
(2) The person filing the originating summons shall leave at the Registry sufficient number of copies thereof together with the documents in Sub-rule 2 of Rule 9 of this rule for service on the respondent or respondents.
12.(1) The Registrar shall seal every originating process whereupon it shall be deemed to be issued.
(2) A Plaintiff or the Plaintiffs legal practitioner shall, on presenting any originating process for sealing, leave with the Registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.
(3) Each copy shall be signed by the legal practitioner or by a plaintiff where the plaintiff sues in person and
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shall be certified after verification by the Registrar as being a true copy of the original process filed.
A calm look at the above provisions indeed reveals that there is no requirement that the specific details mentioned by Appellant?s counsel, including the signature of either the Plaintiff or the Plaintiff?s Counsel must be on the reverse side of the writ. The provisions are to the effect that the writ must be signed, and it was indeed properly signed by the Respondent?s counsel at trial. To agree with Appellant?s counsel that the signature ought not to have placed on the third page would be importing a meaning into the rules, which the rules never envisaged and which serve no useful purpose. I agree with Respondent?s counsel that the Court is restrained from importing a meaning into statutes which are not the clear intention of the drafters. It is the primary duty of the Courts to interpret law, not create it.
See: Setraco (Nig) Ltd v. Kpaji (2017) LPELR-41560(SC).
?In the light of the foregoing I find no merit with this appeal and same is hereby dismissed.
The Ruling of the lower Court delivered on 2nd day of July, 2015 is affirmed.
Parties to bear their respective costs.
Other Citations: (2008)LCN/2975(CA)
