CASE OF THE DAY: EFFECT OF FAILURE TO PROPERLY SIGN AN ORIGINATING PROCESS

PARADIGM COMMUNICATIONS LTD V.HIS EXCELLENCY OBONG (ARC.) VICTOR ATTAH

Suit Number:?CA/C/212/2017

FULL JUDGEMENT

1. (DELIVERED BY BALKISU BELLO ALIYU, JCA
2. This appeal is against the judgment of the High Court of Akwa Ibom State sitting at Uyo, delivered by Hon. Justice F. F. Obot on the 7th August 2014 in respect of suit NO. HU/439/2007 filed by the Respondent against the Appellant vide an amended writ of summons accompanied with amended statement of claim. The facts that gave rise to the suit as stated in the statement of claim located in pages 9 to 10 of the record of appeal are that the Appellants are the owners and publishers of the National Daily Newspaper with their registered office at Ikeja, Lagos State. The Respondent was a former Governor of Akwa Ibom State who served two terms of 8 years in office from 1999 to 2007, and was the presidential candidate of the People Democratic Party (PDP) for the 2007 Presidential election of Nigeria. He claimed that from the 27th August to 2nd September 2007, the Appellants authorized and caused to be published in their National Daily Newspaper as a front page news item captioned:?
3. “ATTAH IN N50B FRAUD”
4. > Flees with wife to Barbados
5. > Used failed American businessmen to dupe Akwa Ibom
6. > EFCC closes in on him;”
7. which, publication was widely circulated and read in several towns and cities in Nigeria including Abuja, Uyo, Calabar, Lagos, etc. He also claimed that under the above captioned front page news items, the Appellants published concerning him the following words:
8. 1.“OPERATIVES of Economic and Financial Crimes Commission (EFCC) are closing in on former Governor Victor Attah of Akwa Ibom State over alleged inflated contracts totaling over N50 billion.
9. 2.But to escape facing the humiliation of being arrested and tried for corruption, which his former colleagues were subjected to, Attah fled Nigeria. Our source indicated that the ex-governor of Akwa Ibom State has chosen to keep away from Nigeria to avoid his certain arrest to answer to the lengthy corruption rap sheet which include the over N50 billion fraud, his property and investment in London, Barbados, US and foreign account.
10. 3.…. that the former Akwa Ibom Governor, fingered by the EFCC as one of the corrupt ex-governors, has no plans to return to Nigeria soon unless extradited by EFCC.
11. 4.… the former Akwa Ibom governor paid out huge sums in hard currency to some of his fronts in the US, using one Ms. Aisha Buhari who was later revealed as Attah’s mistress, claims the funds were being used to lobby into the State Foreign Direct Investment”,
12. Which publication when read together meant that the Respondent was a criminal fraudster, unreliable person, a corrupt ruler and a wanted person. He also claimed that the Appellants’ newspaper publication was made to a number of persons in and outside Nigeria including one Asuquo Udoh a banker who testified as PW2 for the Respondent.
13. Upon these facts, the Respondent prayed the trial Court for the following reliefs against the Appellants jointly and severally:
14. a)N500,000,000 (Five Hundred Million) Naira as damages for libel.
15. b)Perpetual injunction restraining the defendants by themselves, their agents, employees or servants from repeating the same or similar libel and concerning the plaintiff.
16. The Appellants being the Defendants at the trial Court were served with the claims of the Respondent, but they failed/neglected to file a defence thereto. After hearing the witnesses of the Respondent, the learned trial Judge entered judgment in favour of the Respondent and awarded him the sum of N100,000,000 (One Hundred Million Naira) as general damages for libel.
17. The Appellants were aggrieved with the judgment of the trial Court and filed this appeal against it through their notice of appeal filed on the 24th March 2017 with the leave of this Court. The notice of appeal contained two grounds of appeal reproduced below with their particulars:
18. GROUND 1
19. The learned trial Judge erred in law when he entered final judgment in the Respondent’s favour at the trial Court based on an unsigned Writ of Summons.
20. PARTICULARS OF ERROR
21. a)The Respondent, as Claimant at the trial Court commenced Suit NO: HU/439/2007 with a writ of summons that was signed by an unknown person for one A. Ekong Bassey Esq. dated and filed on the 20th of November 2007 against the Appellants as Defendants.
22. b)The Respondent’s Writ of Summons dated and filed on the 4th May 2012 at the trial Court was not signed by a legal practitioner.
23. c)The Court wrongly assumed jurisdiction over a suit commenced via an unsigned Writ of Summons.
24. GROUND 2
25. The judgment is against the weight of evidence.
26. Upon entry of the appeal, the Appellants filed their brief of argument settled by MRS. N. N. OBINWA, on the 1st August 2017 in which she proposed a sole issue for the determination of the appeal as:
27. Whether a judgment obtained on a Writ of Summons signed by proxy or an unsigned Writ of Summons is not without jurisdiction and therefore a nullity. (Distilled from Ground 1).
28. In opposing the Appeal, the Respondent’s brief settled by ETIM OFFIONG ESQ. was filed on the 22nd February 2018, and learned counsel also formulated a lone issue for the determination of the appeal thus:
29. Whether the writ of summons issued on 20th November 2007 properly invoked the jurisdiction of the trial court to hear and determine the case?
30. The Appellant’s Reply brief was filed on the 30th May 2022. The appeal was called for hearing on the 7th June 2022 and counsel on both sides adopted the parties’ respective briefs. The Appellants’ learned counsel urged us to allow the appeal, but the Respondents prayed that the appeal be dismissed.
31. There appeared to be no disagreement between the parties on the issue arising from the grounds of appeal for determination since the lone issue they each formulated is the same. I therefore adopt the Appellants’ lone issue to be my guide to the determination of this appeal.?
32. On its lone issue, the Appellant’s learned counsel submitted that jurisdiction is the livewire, cornerstone and bedrock of every judicial proceeding and can therefore not be compromised nor conferred by consent of parties on the court. He relied on the cases of NNAKWE VS. STATE (2014) ALL FWLR (PT. 716) 414, MADUKOLU VS. NKEMDILIM (1962) ALL NLR (PT. 4) 587 and others for support. He argued that in this case, the originating process filed by the Respondent at the trial Court was signed by a proxy, an unnamed individual for another person. Further, the amended writ of summons was not signed at all; and this underscores the position of the law that the trial Court lacked jurisdiction to adjudicate over the suit that gave rise to this appeal. This is because the suit was not initiated by due process of law as was held in the MADUKOLU VS. NKEMDILIM (supra) and MINISTRY OF WORKS AND TRANSPORT ADAMAWA STATE & 4 ORS. VS. YAKUBU (2013) ALL FWLR (PT. 694) 23 at 37, where the Supreme Court set the guidelines to be followed in signing an originating process for it to be competent. He insisted that the Respondent’s originating processes commencing this suit that was signed by a proxy was a nullity, therefore fatal to the Respondent’s case and the trial Court had no jurisdiction to entertain the suit. That, notwithstanding the amendment to the writ of summons, even assuming the amended process was properly signed, he argued that an incompetent originating process cannot be amended. Further submitted that where the Court lacks jurisdiction to entertain a suit, the entire proceeding is invalid and the decision reached is a nullity. The learned counsel therefore urged this Court to hold that the judgment of the trial Court delivered on the 7th August 2014 against the Defendants based on a writ of summons signed by a proxy and on an unsigned amended writ of summons that was a nullity.
33. The Respondent’s learned counsel replied to the submissions of the Appellant through his submissions on his sole issue; whether the writ of summons issued on the 20th November 2007 properly invoked the jurisdiction of the trial Court to hear and determine the case. He submitted that the suit was commenced vide the Akwa Ibom State High Court Civil Procedure Rules 1989, by which the writ of summons was issued by the Registrar of the trial Court pursuant to Order 5 Rules 1(1) and 15 of the said Rules. By those rules, the writ of summons shall be issued and signed by the Registrar or other authorized officers of the trial Court. Learned counsel submitted that as at the 20th November 2007 when the writ commencing this suit was issued, there were no provisions for the legal practitioner of the claimant to sign the writ of summons. The Rules only required a legal practitioner to file form 1 pursuant to Order 1(2) of the said Rules of the trial Court for the registrar to issue the writ of summons in form 1, which no provision for a legal practitioner of the claimant to sign the writ he applied to the registrar to be issued. As such, the signing of the writ by the Respondent’s counsel after writing his name was superfluous and not a mandatory requirement of the law, he argued. He further submitted that as at the time the writ of summons commencing this suit was issued, it was only the name of the legal practitioner that made the application to the registrar for the issuance of the writ that was required and not his signature.
34. The learned Respondent’s counsel further argued that by the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, the emphasis is on whether the person who signed a court’s process is a legal practitioner. That once that person is a legal practitioner, then the process is valid and that in this case, the handwritten name of the Respondent’s counsel Etim Offiong is sufficient compliance with the provisions of Sections 2(1) and 24 of the Act. He relied on the case of WILLIAMS VS. ADOLD/STAMM INTERNATIONAL (NIG.) LTD (2017) ALL FWLR (PT. 789) 721 at 740 to support his submissions. He also pointed out that it is not in doubt that Etim Offiong who signed the writ of summons is a legal practitioner, and it would have been a different matter if the writ was not signed at all or was issued and signed by a law firm.
35. On the complaint of the Appellant that the amended writ of summons was not signed, the Respondent argued that since that amended writ of summons was accompanied with an amended statement of claim that was duly signed, it was not necessary to sign the amended writ of summons because the amendment was made pursuant to the Rules of the trial Court under which the writ of summons is not severable from the accompanying statement of claim. He conceded that the amended writ of summons cannot supersede the writ that was issued and signed on the 20th November 2007, and therefore it cannot be said that the amended writ of summons was not signed. That in any event, the amended statement of claim that accompanied the amended writ of summons having been signed is sufficient because documents do not need to be franked, by signing every page of it for it to be authenticated. It is sufficient authentication to sign at the foot of the entire document as was done by Etim Offiong Esq. when he signed the amended statement of claim accompanying the amended writ of summons. Learned Counsel urged us to hold that the original writ of summons and the amended writ of summons were duly signed by Etim Offiong Esq. a legal practitioner, as defined by Sections 2(1) and 24 of the Legal Practitioners Act.
36. By way of reply on points of law, the Appellant’s learned counsel placed reliance on the provisions of Sections 2 of the Legal Practitioners Act and Order 6 Rules 1 and 2(3) of the Akwa Ibom State High Court Civil Procedure Rules 2009 and also the cases of SOLUMADE VS. KUTI (2022) 1 NWLR (PT. 1810) 31 at 67 and ALIKOR VS. OGWO (2019) 15 NWLR (PT. 1695) 331 at 364-365; to submit that this suit was heard by the trial Judge based on an unsigned amended writ of summons filed on the 4th May 2012. He argued that legally speaking, not signing an amended writ of summons either by the Respondent himself or by his legal practitioner is an incurable defect that cannot be saved by the litany of submissions in the Respondent’s brief of argument. It means that there was nothing before the trial Court and the entire proceeding leading to the judgment appealed against is incompetent, inchoate and legally non-existent and the Respondent’s brief of argument which owed its root of origin from it, from the beginning of the suit has nothing to lean or stand on. Everything collapsed, vide the case of ALIKOR VS. OGWO (supra).
37. In response to the Respondent’s argument that an amended writ of summons does not fall in a class of originating processes, as such, it cannot supersede the original writ of summons filed on the 20th November 2007; the Appellant’s learned counsel submitted that the Respondent’s argument is misconceived. This is because contrary to the argument of the Respondent, the amended writ of summons filed at the trial Court on the 4th May 2012 is an originating process because it was based on the claims indorsed on it that the trial Court entered judgment now under appeal, regardless of the fact that the amendment takes effect retrospectively. Therefore, where the amended writ of summons is incurably defective, as in this case, there would be nothing upon which the trial Court could exercise its jurisdiction. He submitted that it is immaterial that the writ sought to be amended was valid. Reliance was placed on the cases of SOLUMADE VS. KUTI (2022) 1 NWLR (PT. 1810) 31 at 67, UZODINMA VS. IZUNASO (NO. 1) (2011) 17 NWLR (PT. 1275) 28 at 88 and BELLO VS. INEC (2010) 8 NWLR (PT. 1196) 342 at 385 for support.
38. The Appellant further argued that the Respondent admitted that his suit was heard and determined on the amended writ of summons and amended statement of claim. Learned counsel then reproduced the provisions of Order 6 Rules 1 and 2(3) of the trial Court’s 2009 Rules of Civil Procedure and submitted that these Rules made clear and mandatory provisions for the Respondent himself or his legal practitioner to sign the amended writ of summons filed on the 4th May 2012. Therefore, the argument of the Respondent that the non-signing of the amended writ of summons of 4th May 2012 is saved by the purported valid writ of summons filed on the 20th November 2007 is of no moment because, the 2009 Rules of procedure of the trial Court that came into force on the 1st December 2009 governed the proceedings of the instant case. It follows that the failure of the Respondent or his legal practitioner to sign the amended writ of summons was in breach of those Rules which thereby robbed the trial Court of jurisdiction to continue in the hearing of the matter after the 4th May 2012, and the decision arrived at by the trial court was a nullity.
39. In response to the argument of the Respondent that the signing of the amended statement of claim suffices to cure the non-signing of the amended writ of summons, the Appellant’s learned counsel submitted that an amended statement of claim is just a supporting document and not an originating process. Therefore, the signing of the accompanying amended statement of claim cannot, by any stretch of imagination, take the place of signing an originating process which in law initiates the suit in the first place. He urged the Court to so hold.
40. RESOLUTION
41. The lone issue for my determination as raised by the Appellant is whether a judgment obtained on a Writ of Summons signed by proxy or an unsigned Writ of Summons is not without jurisdiction and therefore a nullity. This issue queried the validity of the original writ of summons filed on the 20th November 2007 to commence this suit and its subsequent amendment filed on the 4th May 2012.
42. Before I proceed to determine this issue, it is necessary to guide myself with the current position of law regarding signing of originating processes filed in courts to commence proceedings. The law is, and it is settled that an originating process filed in court to commence a suit must be signed by a legal practitioner where a party sues by one. Sections 4 and 24 of the Legal Practitioners Act defined a legal practitioner as person who is qualified to practice law in Nigeria having been duly certified as such by the Benchers. It needs to be re-stated also that the Legal Practitioners Act is a substantive law and not a procedural law, and therefore compliance with its provisions are mandatory and are issues of jurisdiction as rightly submitted by the Appellants’ counsel. See ILOKSON & CO. NIG. LTD VS. UNION BANK OF NIG. PLC (2021) LPELR-55626 (SC) and OLIYIDE & SONS LTD VS. OAU, ILE-IFE (2018) LPELR-43711 (SC) among others.
43. The first head to be considered in the resolution of the lone issue is the original writ of summons that was filed on the 20th November 2007 through which this suit was commenced. That writ is contained in pages 2 to 3 of the record of appeal and it was filed along with the Respondent’s statement of claim also copied on pages 4 to 6 of the record. On the face of this process, the Registrar of the High Court of Akwa Ibom State commanded the Appellant by the order of Court to appear within 30 days after the service of the writ on it in respect of the action commenced by the Respondent against it. This “order” or ‘command’ of the trial court was duly signed by the Registrar of the Court who failed to state his name. He or she simply signed as “Registrar”. Then on the second page of the process the claims of the Respondents against the Appellant are listed under the heading “Indorsements” which ended with the following paragraph:
44. This writ was issued by A. Ekong Bassey, Esq. whose address for service is A. Ekong Bassey & Associates No. 225 Oron Road, Uyo, Akwa Ibom State, Legal Practitioners for the said Plaintiff who resides at APICO Shelter Afrique Housing Estate, Off Oron Road, Itiam, Uyo, Akwa Ibom State.
45. There was a signature just above the name “A. Ekong Bassey Esq.” and the word “for” before “A. Ekong Bassey Esq.” indicating that the signature is not that of A. Ekong Bassey Esq. but it was signed “for” him by someone else whose name was not disclosed.
46. The Respondent’s counsel did not deny the fact that indeed someone else not him, signed the writ of summons. In paragraph 2.01 of the Respondent’s brief, he admitted that:?
47. “the name Etim Offiong was hand written in italics on top of the name A. Ekong Bassey, Esq. It is therefore clear that Etim Offiong is the person who signed the writ on behalf of A. Ekong Bassey Esq.
48. But I carefully examined the writ of summons, there is no name of the signatory stated as ‘Etim Effiong’ anywhere on it. There was only a signature without the name and therefore the above submission of the Respondent’s learned counsel is incorrect and not supported by the record of this appeal. There is nowhere in the writ of summons contained in pages 2 to 3 of the record that the name Etim Offiong appeared or at all in the entire record. The Appellant is therefore correct that an unknown person signed originating writ and the Respondent’s counsel’s brief cannot be evidence to explain who signed on his behalf. The fact remained that he did not sign the writ of summons commencing this suit.
49. I have supra stated the position of the law settled by a long line of decisions of this Court and the Apex Court that a legal practitioner must sign an originating process in order to activate the jurisdiction of the court to determine the suit it commences. The Respondent argued that by Order 5 Rules 1(1) and 15 of the Akwa Ibom State High Court Civil Procedure Rules 1989 which provides that a writ of summons shall be issued by the Registrar of that court. If that was the case, why did the Respondent’s counsel choose to sign the writ through a proxy. Besides, it was clearly stated on the writ as reproduced supra, that the writ “was issued “by A. Ekong Bassey…” He cannot deny that fact stated clearly in the record of appeal.
50. In the case of ONYEKULUJE VS. ANIMASHAUN (2019) 4 NWLR (PT. 1662) 242 at 261 para. D, BAGE, JSC speaking for the Apex Court held that:
51. The cases of Okafor V. Nweke (supra), Oketade V. Adewumi (supra) and FBN Plc V. Maiwada (supra) and others cited above 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, for whom it was signed if signed on behalf of another person in chambers, the two names must be disclosed.
53. Also in the case of AL-MASMOON SECURITY LTD VS. PIPELINES MARKETING PRODUCTS CO. LTD (2022) LPELR-56859 (SC), the Apex Court relied on its earlier decision in the case of SLB CONSORTIUM LTD VS. NNPC (2011) 9 NWLR (PT. 1252) 311 and held that once it cannot be determined who signed a court process, it is incurably bad and rules of Court that seem to provide remedy are of no use as a rule of court cannot override the Legal Practitioners Act. It further held that a signature without a name in a process is incurably bad. It is therefore settled law that by the provisions of Section 2(1) and 24 of the Legal Practitioners Act, all processes filed in Court, particularly originating processes must be signed by a known and named legal practitioner and not by an unknown proxy as in this case.
54. With regards to the amended writ of summons filed on the 4th May 2012 contained in pages 6 to 7 of the record of appeal, there is no doubt that it was not signed. But that is of no moment because since the original writ of summons is incompetent, it cannot be amended for one cannot put something on nothing. There was nothing to amend. I am in total agreement with the Respondents’ counsel that the entire proceeding leading to the judgment appealed against is a nullity.?
55. I therefore uphold the argument of the Appellant’s Learned Counsel that the originating writ of summons commencing this suit filed on the 20th November 2007 in which the claims of the Respondent against the Appellants was signed for the Respondent/Claimant’s counsel by an unknown person who did not state his name was incurably bad and incompetent. The suit was therefore not commenced by due process of law, having failed to fulfill the requirement of the Legal Practitioners Act as stated supra. As such the jurisdiction of the trial Court was not properly activated and the subsequent proceedings conducted by the trial Court leading to the judgment appealed against are complete nullity.
56. In the final analysis I enter a negative answer to the lone issue for determination of this appeal and resolve it in favour of the Appellant. Consequently, this appeal has merit and I allow it. I set aside the judgment of the High Court of Akwa Ibom State sitting at Uyo, delivered by Hon. Justice F. F. Obot on the 7th August 2014 in respect of suit NO. HU/439/2007. Parties shall bear their respective costs of prosecuting this appeal.