Mr. Augustine Arueze & Ors V. Chief Mike A. Nwaukoni (2018)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This appeal is brought by the Appellants/Cross Respondents and the Cross-Appeal brought by the Respondent/Cross-Appellant are against the judgment of the Court of Appeal, Benin Division delivered on 12th July 2010 in Appeal No. B/CA/94/2009. The Court of Appeal reversed the judgment of the High Court of Delta State, Ogwashi-Uku Division (‘the trial Court) delivered on 20th March 2008 in favour of the Appellant/Cross Respondents in Suit No. O/9/2005. The lower Court however made some findings against the Respondent as laid-out at pages 464-542 and at 712-760 of the Record of Appeal for the two judgments respectively.
The Appellants/Cross-Respondents expressed dis-satisfaction with the judgment of the Court of Appeal and filed a Notice of Appeal dated 13th July 2010 and an amended Notice of Appeal deemed 15th June 2017 against the decisions of Court of Appeal. The Respondent/Cross-Appellant who was the Appellant at the Court of Appeal is also not totally satisfied with some parts of the judgment wherein the Court of Appeal held that the suit that
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culminated in the instant was properly constituted notwithstanding that all the families interested/affected in the subject matter of the suit (the chieftaincy title) were not joined as parties in the suit. The grievances of the Respondent’s Cross-Appeal are contained in the `Notice of Cross Appeal’ filed 4th November 2012 and deemed on 15th June, 2017.
SUMMARY OF FACTS:
The suit from which this appeal arose was filed by the Appellants (as Plaintiffs) in a representative capacity on behalf of themselves and their family (Umu-Uti family). The suit sought specific declarations as particularly contained in the Amended Statement of Claim beginning from page 360, particularly at pages 365-366 of the Record of Appeal.
The Cross-Appellant raised a Preliminary Objection on the jurisdiction of this Court to entertain an appeal which emanated from a process not initiated by due process of the Court at trial. The basis of the objection is that the ‘Amended Statement of Claim No.3 filed on the 20th December, 2006 at pages 360-366 of the Record of appeal upon which the trial Court predicated its judgement at page 465
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thereof was signed “for” by a person not disclosed on the process. Having raised a Preliminary Objection, by law and procedure, it takes precedence, and must be determined and resolved before taking further steps in this Judgment.
DETERMINATION OF THE PRELIMINARY OBJECTION
The Respondent/Cross-Appellant has raised an objection to the jurisdiction of this Court which is premised on the fact that the ‘Amended Statement of Claim at pages 366 of the Record of Appeal was signed by an undisclosed person for L.E. Eguakun Esq. for Ewah & Ewa. The Respondent/Cross-Appellant reiterated the principle of law established by this court in OKAFOR VS NWEKE (2007) 10 NWLR (Pt. 1043) Pg, 521 at 531 Para G-H; OKETADE VS ADEWUNMI (2010) 8 NWLR (Pt. 1195) Pg 63 at 74-75 PARA F-A; FBN PLC VS MAIWADA (2013) 5 NWLR (Pt.1348) 444 to the effect that the proper procedure for signing on behalf of somebody else is to disclose the name and identity of the person who signed and for whom it was signed if signed on behalf of another person in chambers- the two names must be disclosed.
The Respondent/Cross-Appellant contends further that the person who signed for L.E.
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Eguakun Esq., ought to have disclosed his/her name and identity on the process. Thus, relying on the above authorities and the decision of the Court of Appeal in VF WORLDWIDE HOLDINGS LIMITED VS DANA SERVICES (2014) LPELR 24087 (CA), the Respondent contends that the trial Court, the Court of Appeal and this Honourable Court lacked and remain lacking in jurisdiction to entertain the Appellants’ suit, as it is predicated on a defective process- amended Statement of Claim No. 3- not initiated by due process of law. The Respondent/Cross-Appellant in conclusion urged this Court to uphold the objection by declining jurisdiction to entertain the appeal and to set aside the judgment of the trial Court and the suit for being incompetent.
In its response to the Preliminary Objection, the Appellants argued that the law is that, by virtue of Section 2 (1) and 24 of the Legal Practitioners Act Cap 207 Laws of the Federation of Nigeria 2004, a person is entitled to practice as a barrister and solicitor either generally or for the purpose of any particular office if his name is on the roll of call of legal practitioners in Nigeria.
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However, the Appellant posited further that the crux of the Respondent’s contention is not whether or not a legal practitioner signed the process but that the name and identify was not disclosed.
The Appellant urged the Court to compare the signature on the Amended Statement of Claim No. 3 with the signature on the Plaintiffs’ final written address at pages 403-429 of the record, particularly at page 429 to come to the conclusion that both were signed by ‘Stanley O. Ibhayehor’ a legal practitioner of Ewah & Ewa, Solicitors to the Appellants. The Appellants further urged this Court to compare the signature by virtue of Section 101 (1) of the Evidence Act, 2011 and further urged this Court to put itself in the shoes of the trial Court. The Appellants referred to the cases of WASSAH VS KARA (2015) 4 NWLR (Pt. 1449) 374 at 396-397, Para G-A; CGG (NIG.) LTD. VS AMINU (2015) 7 NWLR (Pt.1459), 577 at 594 per Rhodes Vivour JSC.
In closing, the Appellants submitted that the Courts have moved away from technicality to substantive justice. The Appellants placed reliance on cases of FRN VS DAIRO (2015) 6 NWLR (Pt. 1454) 141 at 170-171, Para. H-A, per Nweze JSC and ABUBAKAR VS YAR’ADUA (2008) 4
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NWLR (Pt. 1078) 465, 511 Para. B. The Appellants urged this Court to hear the appeal on the merit and dismiss the Notice of Preliminary Objection.
The term jurisdiction imports and connotes the authority, competence and legal power which a Court of law or Tribunal possesses to hear a matter before it and reach a decision on such a matter. The law is settled beyond peradventure that an issue of jurisdiction once raised must be resolved. See A – G., LAGOS STATE VS DOSUNMU (1989) 3 NWLR (Pt. 111) 552; (1989) 6 SCNJ 134, MADUKOLU VS NKEMDILIM (2001) 46 WRN 1; (1981) 1 NCLR 135, SOFEKUN VS AKINYEMI (1981) 1 NCLR 135. Also in the case of: A- G. RIVERS SATE VS A. G. AKWA IBOM STATE (2011) 8 NWLR (Pt. 1248) P. 31 at P.214, Paras. B – D, Rhodes-Vivour, JSC.
Jurisdiction is a threshold matter, and so it must be resolved at the earliest opportunity, as any proceedings conducted without jurisdiction would amount to a nullity no matter the outcome of the proceedings. The issue of jurisdiction is so important that it can be raised at any stage of the proceedings even on appeal or in the Supreme Court for the first time.
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See BRONIK MOTORS LTD. AND ANOR. VS WEMA BANK LTD. (1983) 1 SCNLR P. 296; USMAN DAN FODIO UNIVERSITY VS KRAUS THOMPSON ORGANISATION LTD. (2001) 15 NWLR (Pt. 736) P. 305. By its prominence, issue of jurisdiction can be raised informally, although it is desirable some process is filed so that the adverse party is not taken by surprise.
Jurisdiction is the very basis on which any Tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. This vital and overwhelming importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to this Court; afortiori the Court can suo motu raise it… It has even been said that it is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity. See NTUKS VS NIGERIAN PORTS AUTHORITY (2007) All FWLR (Pt. 387) 809 at 828, Paras. C – G, (SC); (2007) 5 – 6 SC 1.
The law is settled that a point of law can be raised on a preliminary objection by a party to a suit if the point of law will be decisive of the whole litigation.
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Therefore, where there is a point of law which if decided one way is going to be decisive of the whole litigation as in the instant case that advantage ought to be taken of the facilities afforded by the rules of Court to have disposed as soon as raised. See N.V. SCHEEP VS MV “S. ARAZ” (2000) 12 SCNJ 24, (2001) FWLR (Pt. 34) 543; EVERETT VS RIBBANDS (1952) 2 QB 198; ADDIS VS CROCKER (1961) 1 QB 11; MADU VS ONONUJU (1986) 3 NWLR (Pt. 26) 23; YEOMAN CREDIT LTD. VS LATTER (1961) 2 All ER 281.” Per Ogbuagu JSC.
The preliminary objection raised by the Respondent/Cross-Appellant is anchored on the validity or competence of the Originating process, the Amended Statement of Claim No.3. filed by the Appellants, and whether on the face of the vital process it was validly issued and signed by ascertainable person with competence to issue such process through the Court. I dare say, for the purpose of the originating process, the validity cannot be inferentially drawn. It is one that must be drawn with mathematical precision, leaving no room for conjecture as to the personality of the originator, in this case, and a legal practitioner.
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I’m persuaded, but not otherwise convinced of the provision of Section 101 (1) of the Evidence Act, 2011 cited by the Appellants at pages 3-4 of its Reply brief. For elucidation, I reproduce same thus:
“(1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.”
The purport of the above section is to clear doubts by comparing signatures, writings, seals or finger impressions. While this may be necessary in respect of issues as to validity of two documents, the snag of the attempt of the Appellants to rely on the above provisions is that there is only one document in contention, not two. The only document on which the preliminary objection of the Respondent is based is and remains Amended Statement of Claim No. 3. Thus, extraneous illustration or comparison
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by inferences cannot be introduced unless the objection is based on two documents. If I hear the Respondent clearly, it says the originating process with which the suit was commenced is defective to the extent that Amended Statement of Claim No. 3 was not signed by a person ascertainable in law and procedure, and no contention is made by the Respondent of any other document in this appeal.
The cases of OKAFOR VS NWEKE (Supra) OKETADE VS ADEWUNMI (Supra) FBN PLC v. MAIWADA (Supra) cited above have settled the matter with satisfactory finality, to the effect that the proper procedure for signing on behalf of somebody else is to disclose the name and identity of the person who signed and for whom it was signed if signed on behalf of another person in chambers- the two names must be disclosed. I can’t agree less with the Respondent that the originating process, the Amended Statement of Claim No. 3 was defective as issued. This goes to the jurisdiction of this Court to entertain this appeal.
I will only need to add, the position of this Court on its competency to proceed with any matter placed before it. See:- the celebrated case of MADUKOLU AND ORS VS NKEMDILIM (1962) 1 All NLR 587 at 594.
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Bairamian F. J. (as he then was) stated the principles which have been accepted in successive case in this Court. “A Court is Competent”; he said, when:-
“(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) The case comes before the Court initiated by due process of Law and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided; the defect is Extrinsic to the adjudication.”
The Amended Statement of Claim No. 3, which is an initiating process, is already found to be defective. This action, which is founded on it, cannot be said to have been initiated by due process of Law. The defect is extrinsic to the adjudication of this case. This Court cannot proceed to hear this case, as the
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condition precedent to the exercise of Jurisdiction is absent. The cross Appellants Preliminary Objection filed on the 20/12/2006 at pages 360 – 366 of the record of appeal is hereby upheld. The Entire appeal collapses, and it is hereby struck out by this Court.
Parties to bear their own Costs.
SC.55/2011
