Ila Enterprises Ltd & Anor V. Umar Ali & Co. (Nig) Ltd (2022)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. 

The present appeal is against the judgment of the Court of Appeal, Kaduna Judicial Division delivered on April 19th, 2013. By the said decision, the Court below dismissed the Appellant’s appeal (CA/K/379/2004) for lacking in merits.

BACKGROUND FACTS

The suit was commenced by the Respondent vide a writ of summons under the defendant List Procedure on June 28th, 2004. By the suit in question, the Respondent claimed against the Appellants jointly and severally the following reliefs:

1. The sum of N11,408,431.00k (Eleven Million Four Hundred and Eight Thousand Four Hundred and Thirty-One Naira) being the balance of the purchase price of cotton lint supplied to the Defendants by the Plaintiff by virtue of an oral contract agreement entered into by the parties sometime in early 2001.
2. 21% interest thereon from 30th October 2001 till judgment and thereafter 10% interest until liquidation of the said sum.
3. Costs of this action.

The Appellants vehemently denied the claim and filed a Notice of Intention to defend the action. The Appellants equally challenged the competence of the action on the ground that some of the originating processes were not endorsed by the commissioner for Oaths in regard to the affidavits.

The trial Court discountenanced the Appellants’ objection and the Notice of Intention to Defend the action. Accordingly, the trial Court proceeded to enter judgment in the Respondent’s favour as per the claim thereof.

Dissatisfied with the said judgment, the Appellants appealed to the Court below, which dutifully heard the appeal and delivered judgment to the conclusive effect:

In the instant appeal, the appellants having issued a cheque in favour of the respondent to be paid the sum of N11,408,431.00 by Union Bank which was eventually not honoured by the said bank, are deemed in law to have acknowledged being indebted to the Respondent to the tune of N11,408,431.00 and I so hold.

In conclusion therefore, this appeal is hereby dismissed for lack of merit.

On March 7th, when this appeal came up for hearing, the learned counsel addressed the Court and adopted the argument contained in their respective briefs. Thus, warranting this Court to reserve judgment in the appeal to today.

The Appellant’s brief of argument, settled by Dr. Nuradeen A. Ayagi Esq. on 30/12/2021, spans a total of 15 pages. At page 4 of that brief, a total of three Issues have been nominated for determination viz:

1. Whether the originating processes on which the respondents’ action at the trial Court was based were not incompetent and incurably so for being unsigned and for having been issued by and signed for a non-legal practitioner and whether that did not affect the jurisdiction of the trial Court.
2. Whether the omission by the lower Court to consider and make pronouncements on each and every issue formulated and argued by the appellants did not constitute denial of fair hearing capable of nullifying the decision reached.
3. Whether the existence of a counterclaim, dispute as to the quantum of the outstanding amount and the particulars provided therefore are not sufficient to constitute triable issues and thereupon transfer the case to the general cause list.

​The issue No. 1 is canvassed at pages 4-7 of the brief, to the effect that a cursory look at the writ of summons would reveal that it has no legal value as it had not been filed in Court; it carries no official stamp of the registry or an endorsement by the processing registrar of the Court. The implication of which is that it ought not to have been looked at by the trial Court. See CPC VS. OMBUGADU (2013) 7 SCNJ 775.

Further submitted, that the writ of summons (pages 1-2 of the Record) has not been signed by the issuing legal practitioner. Therefore, the unsigned process is as good as no process, because it’s the counsel’s signature that signifies the process was duly issued by a person in a position to so issue. See OKARIKA VS. SAMUEL (2013) 2 SCNJ 491 @ 498; OKAFOR VS. NWEKE (2007) 3 SCNJ 185; HAMZAT VS. SANNI (2015) 1 SCNJ 123; FBN VS. MAIWADA (2012) 5 SCNJ 1. BRAITHWAITE VS. SKYE BANK (2012) 12 SCNJ 106 @ 111.

The Court is urged to so hold.