The cases...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. 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 condition precedent to the exercise of Jurisdiction is absent. The cross Appellants Preliminary Objection filed on the 20/12/2006 at pages 360...
Where a Respondent is not comfortable with a finding, not the entire Judgment, which he considers fundamental, he can challenge same by filing a cross-appeal – Cameroon Airlines V. Otutuizu (2011) 4 NWLR (Pt. 1238) 512, Obi V. INEC (2007) 11 NWLR (Pt. 1046) 565. Where the Respondent supports the judgment, but wants it affirmed on grounds other than those relied upon by the Court, he must then file a Respondent's Notice – Kayili V. Yilbruk (2015) LPELR-24323(SC).
Without a cross-appeal or Respondent's Notice, he will not be allowed to attack the judgment, and the effect of violating this rule is that arguments in his brief in support of the Appellant will be ignored – see Obi V. INEC(supra).
There is nothing to indicate to me either, where there is a soiled relationship between the counsel and his client. Be that as it may, the settled practice is that a counsel whose fees have not been settled can lawfully refuse service of a process on him, and in that case, the litigant must personally be served with the process in question before a decision is taken against him, failing which would amount to a beach of the right of fair hearing. See Bamgboye v. University of Ilorin(1999) 6 SCNJ 295; Also, if a party changes his counsel but service of a Court process is nevertheless effected on his former counsel, the consequent proceedings based on that process are null and void for breach of the fair hearing rule, the fact that no formal notice of change of counsel has been filed notwithstanding. See FBN v. T.S.A Industries Ltd (2010) ALL FWLR (Pt. 537) 633. However, if counsel is aware of a date of adjournment but takes ill before or on that date, he should either write a letter to the Court or ask another counsel in his chambers (where he has some) to attend Court, failing which he shall not be heard to complain of beach of fair hearing if a decision is taken in his absence. See Governor of Zamfara State v. Gyalange (2013) 8 NWLR (Pt 1357) 462 at 479.
This Court had laid down the ground rules on what should be to qualify for an appropriate signing of a legal practitioner on a legal especially as it relates to an originating process such as a Notice of Appeal or such like. In the case of SLB Consortium Ltd v NNPC (2011) 9 NWLR (Pt. 1252) 317 at 337 -338, the Supreme Court per Rhodes – Vivour JSC stated thus:- "All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel written. Thirdly, who the counsel represent. Fourthly, name and address of legal firm. Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e, the Legal Practitioners Act)." In the lead judgment, Onnoghen JSC (as he then was) at pages 331 – 332 (paras H – A) held that:. "... A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and it is sufficient signature if the legal practitioner simple writes his own name over and above the name of his/or firm in which he carries out his practice." At 332 (Para E) it was further held thus: 'It has been argued that non-compliance with the provision of Order 25 Rule 4(3) supra is mere irregularity... as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of Madukolu v Nkemdilim (supra)... the provision of the Rules of Court involved herein are by the wordings mandatory not discretionary." The Court had in Okafor v Nweke (2007) 10 NWLR (Pt. 1043) 521 where the process in contention was signed above the name of J.H.C. Okolo, SAN & CO., stated as follows on what should be thus:- ".... J. H.C. OKOLO SAN & CO. is not a legal practitioner and therefore cannot practice as such by say, filing processes in...
Filing and service of a process have different legal essence. By Filing, a party crystallizes a legal process for the attainment of specific objective in judicial proceedings. Service is intended as notice to the other party and does not vitiate a judicial process duly initiated except that the attainment of the objective might be put in abeyance without proper or valid service. See the cases of AJIBOLA V. SOGEKE (2001) 23 W.R.N.68 at 88, SAIDU V. MAHMOOD (1998) 2 NWLR (Pt. 536) 130 at 138 and NATIONAL EMPLOYERS MUTUAL GENERAL INSURANCE ASSOCIATION LTD. V. LADUN MARTINS (1969) 1 A.N.L.R. 469 at 473.
OYEYEMI(RTD) &
Where a Notice of Appeal is not signed, and the Court proceeds to hear the appeal, it would be as if the hearing never took place. This is so since one cannot put something on nothing and expect it to stand. See UAC v. Mcfoy(1962) ACP 152.
In SLB Consortium Ltd v. NNPC (2011) 4SC (pt. i) p. 86.
I said that:
"Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot overrule the law (i.e. the Legal Practitioners Act). All processes filed in Court are to be signed as follows:
Firstly, the signature of counsel, which may be any contraption.
Secondly, the name of counsel clearly written.
Thirdly, who counsel represents.
Fourthly, name and address of legal firm."
It has now become trite in law that this Court can relist a matter upon the fulfilment of certain conditions and where those conditions or obstacles are absent the application such as the present would fail. The guide for this kind of presentation as we are faced with are stated in the case of N.N.S.C. v. E.S.V. (1990) 7 NWLR (pt.164) 526which are:-
(a) Whether the applicant had good reasons for being absent at the hearing?
(b) Whether he has shown that there was good reason for his delay in bringing the application?
(c) Whether the respondent will not be prejudiced or embarrassed if the order for the rehearing was made?
(d) Whether the applicant's case was manifestly unsupportable.
Service of originating process is not an issue of mere technicality. It goes to the roots of adjudication. This Court in SKENCONSULT (NIG.) LTD v. UKEY (1981) 1 SC (Reprint) 4 and UCHENDU v. OGBONI (1995) 5 NWLR (pt.603) 337 has held that improper service of originating process on the defendant denies the Court of its competence to adjudicate in the matter, since the suit would not have been initiated in accordance with the due process of law.
The Court has been consistent in maintaining that service of processes, particularly the originating process, is a precondition to the exercise of the Court's jurisdiction. Where there is no service at all or there is some procedural fault in service, the subsequent proceedings are a nullity ab initio. This is based on the basic principle of law that a party should know or be aware that there is a suit against him so that he can prepare his defence thereto. lf after service he chose not to put up any defence, the law assumes that he has no defence. However, where a defendant is not aware of a pending litigation because he was not served, the non service renders the proceedings null and void. See EIMSKIP LTD. v. EXQUISITE IND. (NIG) LTD. (2008) 4 NWLR (Pt.809) 88 citing with approval SKENCONSULT (NIG.) LTD. v. UKEY (supra).
In Odutola v Kayode (1994) 2 NWLR (Pt. 324) 1 at 19- 20 paras G – A, this Court had this to say: Since the lower Court ordered a personal service on the defendant, any other service not in accordance with the order of Court was not a proper service. This case has brought out clearly the statutory and honest duties required of a bailiff: to serve in accordance with the order of Court. Where a personal service is ordered, he must serve that person personally. Where a substituted service whether by pasting at the last known abode of the person required to be served, or by a publication in a newspaper is ordered, any other service which is not in accordance with the clear and unambiguous language of the Court is ineffectual. Further at page 21 para F of Odutola v. Kayode (supra), this Court continued: "To effect personal service of Court process on a party, the bailiff or any officer of Court entrusted with the task should satisfy himself that he has found the right man. It is not enough to leave a Court process with person who works with the same office with the defendant, as was done in this case, even if the latter undertakes to convey it to the appellants. A similar presentation had erupted in the case of Ihedioha v Okorocha (2016) 1 NWLR (Pt. 1492) 147 at 176 D – H "The order for substituted service which the trial Court made is tied to the address for service which the appellant supplied and the specific person (i. e. the 1st respondent) named in that order. Neither the bailiff nor any person at all was competent to alter the text and subject of the order without a prior leave of the Court. See Odutola v Kayode (1994) 2 NWLR (pt. 334) 1 at 15 for persuasion to the effect that the Court is bound by its own orders. In Kida v Ogunmola (supra) at 399 A H the Supreme Court relied on the decision of the Queen Bench Division of the Court of England Fry v Moore (1889) 23 QBD. 395 and decided that there cannot be substituted service of a suit which...
On the importance of a bailiff carrying out his statutory duty in accordance with the Rules or Order of Court, I refer to Odutola Vs Kayode(1994) 2 NWLR (pt.324) 1 @ 19 – 20 G – A, where Olatawura, JSC (of blessed memory) stated thus:
"This case has brought out clearly the statutory and honest duties required of a bailiff: to serve in accordance with order of Court. Where personal service is ordered, he must serve that person personally. Where a substituted service either by pasting at the last known abode of the person required to be served, or by publication in a newspaper is ordered, any other service which is not in accordance with the clear and unambiguous language of the Court is ineffectual.
Bailiffs are officers of the Court. Any dereliction of duty in the discharge of their duties will cause unnecessary delay in the administration of justice. A false return of service on the part of the bailiff may lead to an attempt to deceive the Court. This in itself is an abuse of that order."
The law is equally settled that the presumption of regularity in this regard is rebuttable. A defendant who intends to challenge the affidavit of service deposed to by the bailiff must file an affidavit denying service and detailing specific facts, which show that he could not have been served on the date, or at the time, or at the place or in the manner deposed to. It would then be for the Court to determine whether or not the party complaining was indeed served accordingly.
Section 168 (1) of the Evidence Act, 2011 provides for the presumption of regularity of official acts. It provides thus;
"(1) Where any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with."
The law is trite that an affidavit of service deposed to by the bailiff of a Court stating the Fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matter stated in the affidavit, See: Schroder Vs Major (1989) 2 NWLR (Pt.101) 3 @ 11 E – H; Okoye Vs Centre Point Merchant Bank Ltd. (2008) 15 NWLR (Pt.1110) 335: Idisi Vs Ecodril (Nig) Ltd. (2016) LPELR- 40438 (SC).
It is therefore settled beyond dispute that the service of an originating process on a party to an action is a condition precedent to the exercise of the Court's jurisdiction, as any party against whom a suit or process is filed has the right to know that a suit had been instituted against him, what the claims are and an opportunity to defend himself if he has a defence thereto.
My Lords, I deem it appropriate to commence the resolution of this issue by considering, briefly, the law governing the service of originating processes. The settled position of the law was clearly stated by His Lordship, Musdapher, JSC (as he then was) in Kida Vs Ogunmola (2006) 6 SCNJ 165 @ 174 thus: service of process on a party to an action, particularly an originating process, is crucial and fundamental. See Auto Import Export v. Adetayo (2000) 18 NWLR (Pt. 799) 554; S.G.B.N v. Adewunmi (2003) 10 NWLR (Pt. 829) 526; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of the Courts jurisdiction was not fulfilled. To underscore the importance of service, His Lordship continued at page 175 lines 5 – 7 (supra); Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of counsel since where there is no service, there is no valid trial." The principle was re-stated in the recent decision of this Court in; Ihedioha Vs Okorocha (2016) 1 NWLR (Pt.1492) 148 @ 179 D-F by Okoro, JSC: "... I agree that it is not every non-compliance with the Rules of Court that should vitiate the proceedings. However, where the non-compliance robs the Court of its jurisdiction, the processes and the proceedings must be set aside. I must emphasize that service of process is an important aspect of the judicial process. Failure to serve a named party with Court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Any beach of this principle (of fair hearing) renders the proceedings a nullity. See Chime vs. Onyia (2009) All FWLR (Pt. 480) 673 @ 730-731 Paras H-B; (2009) 2 NWLR (Pt. 1124) 1. See also: Skenconsult (Nig) Ltd. Vs Ukey (1981) 1 SC...
This Appeal is easily resolved in favour of the Appellant because as my learned brother pointed out, the position of the law as it stands is that a legal process signed and issued by a law firm is definitely incompetent and is liable to be set aside. So, the processes used in Court must be signed and issued by a person and in the proper name of the person as enrolled to practice law in Nigeria under the Legal Practitioners Act – See Alawiye v. Ogunsanya (2012) 5 NWLR (Pt. 1348) 570, where Rhodes-Vivour, JSC, who also participated in SLB Consortium v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317, further observed that – "This case is on all fours with SLB Consortium v. NNPC In that case, the Originating Summons and the Amended Statement of Claim complained of were signed by "Adewale Adesokan & Co." Since Adewale Adesokan & Co. is not a legal practitioner, whose name is on the roll, the originating processes were defective and the appeal arising from the proceedings initiated and conducted without jurisdiction was incompetent. In this matter, the originating processes were signed by "Chief Afe Babalola, SAN & Co." It is clear that those processes were not signed by a person known to law, the name not being on the roll, and so the originating processes were signed contrary to Section 2 and 24 of the Legal Practitioners Act. Chief Afe Babalola, SAN & Co. is not a legal practitioner known to law, the said originating processes are defective and all proceedings that arose from the said defective processes are nullities. In SLB Consortium v. NNPC . I explained how processes filed in Court are to be signed, I said – "All processes signed in Court are to be signed, I said – (a) The signature of counsel which may be any contraption; (b) Secondly, the name of counsel clearly written' (c) Thirdly, who counsel represents; (d) Fourthly, name and address of legal firm." Click on the link below to...
The law is also trite that an incurably defective process cannot be amended nor can anything be added to it, the well known adage being that you cannot put something on nothing and expect it to stand. See: Nwaigwe v. Okere(2008) 5 SCNJ 256 @ 274.
The position of the law on the competence of a legal process signed by a person whose name does not appear on the roll of legal practitioners has been re-stated many times by this Court. In my concurring opinion in a recent decision of this Court in SHELL PETROLEUM DEVELOPMENT CO. NIG. LTD v. SAM ROYAL HOTEL NIG. LTD. (2016) LPELR-SC./120/2006 @ Page 23 A-D, as i observed as follows: "There is now a veritable body of authorities of this Court on the effect of signing a process in the name of a law firm, not being a person whose name appears on the roll of legal practitioners and authorized to practice Law in Nigeria by virtue of Sections 2 (1) and 24 of the Legal Practitioners Act Cap. L11 Laws of the Federation of Nigeria (L.F.N.) 2004. Some of the authorities are as follows: N.N.B. PLC v. Denclag Ltd. (2005) 4 NWLR (Pt. 915) 549 @ 582; Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; Okelade v. Adewunmi (2010) 2-3 SC (Pt. 1) 140; F.B.N. Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444 @ 488 A-D; SLB Consortium Ltd. v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317..... It has been said time and again that in upholding the sanctity of Sections 2 (1) and 24 of the Legal Practitioners Act this Court being a policy Court has a responsibility to ensure that standards of legal practice are maintained. Hear His Lordship, Fabiyi, JSC in F.B.N. Plc v. Maiwada (supra) at 488 A-D: 'I wish to repeat that we are interpreting in law which seeks to make legal practitioners responsible and accountable more especially in modern times that we are presently operating. I see nothing technical in insisting that a legal practitioner should abide by the dictates of the law signing Court processes... The decision inOkafor v. Nweke is not in any respect wrong in law and I cannot surmise a real likelihood of injustice perpetrated. I cannot trace the issue to the domain of public policy. .......... The law as enacted should be followed. I do not for one moment see any valid...
It is trite that it is the seal or signature, of the author on a document that authenticates the document. A legal document or process of Court must be settled or signed by either the legal practitioner of the choice of the litigant or the litigant himself. The disputed processes were purportedly settled or signed by a legal practitioner, whose identity is unknown. Where ex facie a Court process it is uncertain if the process was signed by the litigant or the legal practitioner representing him, the process is incompetent. Court processes must either be signed by the litigant himself or by the legal practitioner retained by him. A Court process that purports to be settled by a legal practitioner must, as a requirement of statute, have not only the signature of the legal practitioner but also his name clearly shown and indicating that the signature is his. The decision of this Court in SLB CONSTRUCTION LTD. v. NNPC (supra) and many others on Court processes prepared and filed by a legal practitioner clearly demonstrate that for the signature thereon appended to be valid, it must be traceable to a legal practitioner. The process must have the signature or mark of the legal practitioner either against his name, or over and above his name.
There is no doubt that it has been held in a plethora of decisions of this Court and it is now firmly settled that a Court process that is not signed by a legal practitioner whose name appears on the roll of legal practitioners and who is entitled to practice as a barrister and Solicitor as provided for in Sections 2 and 24 (2) (1) of the LPA Cap. 111 LFN 2004 is incompetent and liable to be struck out. See: Oketade vs Adewunmi (supra); Okafor Vs Nweke(supra): F.B.N. Plc. Vs Maiwada (2013) 5 NWLR (Pt. 1348) 1433. ln S.L.B. Consortium Ltd. Vs N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317 @ 331 B-332A, this Court affirmed its earlier decision in Registered Trustees of Apostolic Church Lagos Area vs Rahman Akinde (1967) NMLR 263 and held that a process prepared and filed in Court by a legal practitioner must be signed by the legal practitioner, and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice.
WILLIAMS & ANOR V. ADOLD/
See also Section 2(1) of the said Act. I believe that Olujinmi & Akeredolu", is a Law Firm and there is no evidence that it is registered as a Business Name. The consequence is that both the said Notice of Appeal and the Appellant's Briefs, are incompetent, invalid and therefore, null and void as rightly submitted in the Respondents'Brief. The courts, including this Court, have pronounced on such document or document signed as So So & Co. See the cases of The Registered Trustees of Apostolic Church Lagos Arch-diocese v. Rahman Akindele (1967) NMLR 263 @265. The unreported cases of suit CA/J/162/2000 – First Bank of Nigeria Plc. & anor. V. Alhaji Selmanu Maidawa – dated 27th March, 2002 – per Mangaji, JCA (of blessed memory) My unreported Judgment Suit CA/J/234/2000 dated 7th December, 2004 – Major-General Bamiyi (Rtd) v. Danladi A.B. Galla. See recently, the case of Okafor & 2Ors. v. Nwoke & 4 ors. (2007) 10 NWLR (Pt.1043) 521; (2007) 3 SCNJ. 185; (2007) &S.C. (Pt.11) 55; (2007) All FWLR (Pt.368) 1016.
Adewunmi & ors v. Oketade LGC(5/3/2010) C
Quite apart from the fact that court orders must be obeyed as directed, it cannot be over-emphasized that for a valid and effective commencement of a claim, an intending plaintiff shall strictly comply with the provisions of relevant statutes and the rules made thereunder and governing the claims made such as the High Court Law and Rules of Anambra State. It is the responsibility of the plaintiff inter alia to pay the requisite fees in respect of each and every relief claimed as prescribed by the rules to enable the court's judicial functions to commence. A court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the court or such fees are payable by any Government Ministry or non-Ministerial Government Department or Local Government pursuant to the provisions of the said High Court Rules of Anambra State. If the default in payment is that of the plaintiff, the claim in respect of which such prescribed fees have not been paid cannot be said to be properly before the court and should be struck out in the absence of an appropriate remedial action or application to regularise such anomally.
Relying on ODUTOLA v. KAYODE (1994) 2 NWLR (Pt.324) 1 at 22 B – C; SOCIETE GENERALE LTD. v. JOHN ADEBAYO ADEWUNMI (2003) 29 WRN 37 at 47; A.G. RIVERS STATE v. GREGORY OBI UDE (2007) ALL FWLR (Pt.347) 598 at 614; it is submitted correctly for the Appellants that, service of Hearing Notice is a condition precedent for the invocation of Order 6 Rule 9(5) of the Court of Appeal Rules, 2002. It touches the heart of fair hearing guaranteed under Section 36(1) of the 1999 Constitution; particularly the principle of audi alteram partem. The defect is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication, as it touches on the competence of the adjudicating body to exercise its jurisdiction in the matter: MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR (Pt.4) 587 at 594; SKENCONSULT v. UKEY (2001) 49 WRN 63 at 86 87. The attitude of the Courts to service of Court's process and the consequence for non-service of Court's processes were aptly stated thus by this Court in SKENCONSULT v. UKEY (supra) –
The service of process on the defence (or the adversary) so as to enable him appear to defend (or advance) the relief sought against him (or by him) and due appearance by the party or any counsel (retained by him) must be those fundamental conditions precedent before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.
Any application to serve the writ outside jurisdiction must be made under Section 97 of the Sheriffs and Civil Process Act. See: Broad Bank of Nigeria Ltd v. Alhaji S. Olayiwola & Sons Ltd & Anor (2005) 3 NWLR (Pt. 912) 434; Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664; Fumudoh v. Aboro (1991) 9 NWLR (pt. 214) 210; Erokoro v. Government of Cross River State (1991) 4 NWLR (pt. 185) 322; University of Ife v. Fawehinmi Contruction Co. Ltd (1991) 7 NWLR (Pt. 201) 26; Achineku v. Ishaga (1988) 4 NWLR (pt.89) 411.
I am aware that Order 6 Rules 5(b) provides that such substituted service be done through "a person being an agent of the person to be served or to some other Person," For the avoidance of doubt, the word "person" is not defined under the rules. But by Section 18(1) of the Interpretation Act, Cap 192 Laws of the Federation of Nigeria 1990, a "person" is defined as including anybody or persons corporate and incorporate. The All Progressives Congress, the political party of the Appellant at its National Headquarters Abuja, qualifies as "some other person" as used in the Rules. It is obvious that a political party is an artificial person and operates through natural persons. As the appellant was a governorship candidate of the APC, it was reasonable for the learned trial Judge to believe and exercise his discretion in favour of granting the application through the National Secretariat of the Party. SeeUniversity of Jos v Ikegwuoha (2013) 9 NWLR (pt 1360) 478, Atake v Afejuku (1994) 9 NWLR (pt 368) 379, Ibrahim v Judicial Service Committee, Kaduna State & Anor (1998) 14 NWLR (Pt 584) 1. The phrase "come to the knowledge of the person to be served" in Rule 5[b] gives it a liberal meaning. That is to say, where the process is made available at the office or residence of the defendant whether he is present or not and he is so informed as was done in this case, the process has come to his knowledge and that satisfies Order 6 Rule 5[b) of the Federal High Court (Civil Procedure) Rules. To hold otherwise could be to dignify technicality above doing substantial justice. Any interpretation by our Courts which seeks to emasculate should be avoided as it would not serve the interest of justice and would tend to confine the citizenry into a legal container. It should be avoided at all legitimate costs. See First Bank of Nig. Plc & Anor v Maiwada & Ors (supra). Moreso, the appellant who had timeously become...
Without much ado, I find it extremely very easy to agree with the views expressed by both the learned Trial Judge and the Court below in the interpretation accorded Order 6 Rule 5(b) of the Federal High Court (Civil Procedure) Rules 2009. In Okoye v Centre Point Merchant Bank Ltd (2008) All FWLR (pt 441) 810, this Court stated clearly that the object of all types of services of Court processes, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of and be able to resist if he may, that which is sought against him.
See also Section 2(1) of the said Act. I believe that Olujinmi & Akeredolu", is a Law Firm and there is no evidence that it is registered as a Business Name. The consequence is that both the said Notice of Appeal and the Appellant's Briefs, are incompetent, invalid and therefore, null and void as rightly submitted in the Respondents'Brief. The courts, including this Court, have pronounced on such document or document signed as So So & Co. See the cases of The Registered Trustees of Apostolic Church Lagos Arch-diocese v. Rahman Akindele (1967) NMLR 263 @265. The unreported cases of suit CA/J/162/2000 – First Bank of Nigeria Plc. & anor. V. Alhaji Selmanu Maidawa – dated 27th March, 2002 – per Mangaji, JCA (of blessed memory) @ pages 1.3 & 14; My unreported Judgment Suit CA/J/234/2000 dated 7th December, 2004 – Major-General Bamiyi (Rtd) v. Danladi A.B. Galla. See recently, the case of Okafor & 2Ors. v. Nwoke & 4 ors. (2007) 10 NWLR (Pt.1043) 521; (2007) 3 SCNJ. 185; (2007) &S.C. (Pt.11) 55; (2007) All FWLR (Pt.368) 1016.
Adewunmi & ors v. Oketade LGC(5/3/2010) C
On the issue of amendment.....it is the law that an incompetent process cannot be amended".
See also the Supreme Court decision in Nigeria Army v Samuel (2013) 14 NWLR (Pt. 1375) 466 at 483 (Para E – H), where the Court per Onnoghen JSC (as he then was) held thus:
"N. O. O. Oke & Co. is not a legal practitioner registered in Nigeria to practice law and thereby clothed with the powers to sign/frank legal documents and file same in the Court of law, it is also not a legal person known to law which makes its position worse...........
The lack of legal personality is a fundamental defect which cannot be cured by an amendment. It is a defect that goes to the root of the proceedings and renders same void ab initio. In the eyes of the law, the notice of appeal in this case did not exist and can therefore not be accorded validity by an amendment. What is void is void."
Similarly, at page 486, F- G of the above case, His Lordship Ogunbiyi, JSC in his respect held thus:
"The Originating notice of appeal as the initiating process must be competent for any subsequent amendment to sustain. To hold otherwise and as contended by the respondent's counsel is to put something on nothing and which would surely crumble. The amendment has no foundation to stand thereon".
Akaahs JSC in the same SLB Consortium Ltd v NNPC in dealing on what should obtain upon an amendment of the defective notice of appeal stated thus:
"The Originating process i.e. the notice of appeal (which was purportedly amended) upon which the lower Court allowed the appeal from the General Court Martial was fundamentally defective which could not be cured by an amendment. Consequently the judgment of the lower Court predicated on an invalid notice of appeal is a nullity".
Dickson Ogunseinde Virya Farms Limited v. Societe Generale Bank Limited & Ors LGC(9/2/2018) J
....... the Supreme Court has put its stamp of interpretation on who can sign an originating process upon which the process would be taken as valid. In the case of SLB Consortium Ltd v NNPC (2011) 9 NWLR (Pt. 1252) 317, this Court had interpreted Order 26 Rule 4 (3) of the Federal High Court (Civil Procedure) Rules, 2000 which stipulates that "Pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person. Order 3 Rule 12 (3) of same Federal High Court provides that every originating process shall be signed by the Legal Practitioner or by the plaintiff where the plaintiff sues in person." My learned brother, Rhodes-Vivour JSC in the said SLB Consortium Ltd v NNPC (supra) spelt out the position at pages 237 – 338 thus: "All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel written. Thirdly, who the counsel represent. Fourthly, name and address of legal firm." His Lordship further held at 337 (para G) that "Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioner Act.)" In the lead judgment, Onnoghen JSC at pages 331 – 332 (para H – A) held that: ".....A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and that it is sufficient signature if the legal practitioner simply write his own name over and above the name of his/or firm in which he carries out his practice. It has been argued that noncompliance with the provision of Order 26 Rule 4(3) supra is mere irregularity.......as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of Madukolu v Nkemdilim (supra)...... the provision of...
It is settled law, that the proof of service of processes on all parties to the suit before the Court is the factor which confers jurisdiction of the Court on the parties. In the absence of proof of service, the Court acts in vain, and the proceedings a nullity.
However, Section 36(2) of the Constitution of Nigeria 1999 provided that an opportunity should be provided for a person whose rights and obligation may be affected to make Representation to the administration of authority before that authority makes decision affecting that person.
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This is because the Notice of Appeal is the substratum of the appeal. It is the foundation upon which every other process or proceeding in the appeal rests. Being an originating process, it is a fundamental requirement not only of the Rules of this Court but also of the constitutional right of fair hearing guaranteed under Section 36(1) of the 1999 Constitution that all parties to the appeal be duly served therewith. It is only when a party has notice of proceedings that he is in a position to read thereto and place his own side of the case before the Court. In an appeal, service of the notice of appeal on the respondent provides him with an opportunity to participate in the compilation of records and to file a cross-appeal, if necessary. On the mandatoriness of personal service of the Notice of Appeal, see Order 2 Rule 3 (1) (b) of the Rules of this Court.
Failure to serve an originating process on a party to the proceedings is a fundamental defect which goes to the root of the Court's jurisdiction to adjudicate.
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I agree with learned counsel to the 1st respondent that notice of appeal is the foundation of the appeal and that non-service of the notice, if established, goes to the root of the appeal. The defect is not a mere irregularity as, being fundamental, it robs the appellate Court the jurisdiction to hear and determine the appeal. This Court has repeatedly held that service of an initiating process, which the notice of appeal is, is a sine qua non for a Court to assume jurisdiction over a case. In S.G.B.N. Ltd v. Adewunmi (2003) 10 NWLR (Pt.829) 529 this Court restated its concerns thus:-
"Service of a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seised of the matter. Clearly due service of process of Court is a condition sine quo non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set-aside as a nullity.
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I join my learned brother to answer that question in the negative. My reason for so doing is that in a plethora of cases including OKAFOR VS. NWEKE (2007) 10 NWLR (PT.1043); EZE VS. OKECHUKWU (2015) 10 NWLR (PT. 1467) 307 AT 320 AND SLB CONSORTIUM LTD VS. NNPC (2011) 9 NWLR (PT.1252) 317 the Apex Court emphasised that the defect created in a originating process which is not signed by a legal practitioner goes to jurisdiction. If it does, then the counter – claim which arose as a result of the Plaintiffs claim cannot stand because as a matter of action, the Counter Claim is dependent on the Plaintiffs claim.
A Counter – Claim on the other hand is said to be a separate and independent claim, not as a matter of action but in relation to proof and distinct treatment in adjudication. A Counter-Claim is a separate and independent Claim in the same action with the Plaintiff's Claim.
Thus the above rule of Law which treats the Counter- Claim as a separate and distinct claim, does not save the Counter Claim when the Court is deprived of jurisdiction to entertain the main claim.
For emphasis, the Originating processes in suit No: ID/1133/95 as filed by the appellant being incompetent the trial Court was wrong to have proceeded and to have entertained the suit. My view is that the appellant's suit qualified to have been struck out for being incompetent and I so hold. For emphasis, I make reference to the recent decision of the Apex Court in the case of Kente vs. Ishaku (2017) 15 NWLR (pt. 1587) 94 @ 118, where it was stressed that:
"The validity of originating process in a proceeding, like the originating summons, writ of summons or notice of appeal, is the sine qua non for the competence of the proceedings that follows it, or that is initiated by such process, see Madukolu vs. Nkemdilim (1964) 3 NSCC 374 @ 379 – 380. Consequently, failure to commence a suit or appeal with a valid originating process is a fundamental error. It goes to the root of the action or appeal since the conditions precedent for the exercise of the Court's jurisdiction would not have been met to place the suit or appeal before the Court for the exercise of its jurisdiction to hear and to determine the issues in the action or the appeal. See Kida vs. Ogunmola (2006) 13 NWLR (pt. 997) 377; Braithwaite vs. Skye Bank Plc (2012) LPELR 75532 SC."
It is against the backdrop of the cases thus cited that, that Chief Afe Babalola SAN & Co" and "Rotimi Aladesanmi though eminent legal firms who purportedly signed the Original processes before the lower Court, did so in vain rendering the entire Originating process invalid, incompetent and a complete nullity. This much was asserted by the Supreme Court in the case of Okarika vs. Samuel (supra) that:-
Once an originating process be it writ of summon, or Notice of appeal is not signed or authenticated either by the litigating party or the Legal Practitioner on his behalf, then the processes is invalid and the jurisdiction of the Court is ousted. The defect is taken as incurable and the process signed in the name of a Legal Firm would not suffice."
This apparently is the state of the law, eminently recognized and conceded to by all the parties.
Law is settled that where service of process is required, failure to serve it is a fundamental vice that touches on the jurisdiction of the Court that is seized with the matter. See Auto Import Export v. Adebayo (2002) 18 NWLR (Pt.799) 554, Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.384) 535, Skenconsult (Nig.) Ltd v. Ukey (1980) of SC 6, Obimonure v. Erinosho (1966) 1 AII NLR 250.
ALL PROGRESSIVE CONGRESS (APC) v.
The Law is settled that a failure to serve the opposing party with the necessary process which will facilitate the hearing of a case connotes that the condition precedent to the exercise of jurisdiction of the Court is not fulfilled. In other words absence of service of Court processes, where those processes are required to be served is a fundamental vice that goes to the jurisdiction of the Court. A party who complains that he has not been served with necessary Court processes does not require leave of either the Lower Court or this Court to raise it in his ground of appeal.
See Auto Import Export v. Adebayo (2002) 18 NWLR (Pt.799) 554 at 583 paragraphs B-D.
ALL PROGRESSIVE CONGRESS (APC) v.
It is settled law that where service of process is required, failure to serve it is a fundamental vice and touches on the jurisdiction of the Court that is seised of the matter. See: Obimonure v. Erinosho (1966) 1 All NLR 250; Skenconsult (Nig) Ltd v. Ukey (1980) 1 S.C. 6; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.384) 535; Auto Import Export v. Adebayo (2002) 18 NWLR (Pt.799) 554.
ALL PROGRESSIVE CONGRESS (APC) v.
It has to be reiterated even at the risk of repeating what has become trite and perhaps looked upon as over flogged but must be said, that service of Court process is fundamental as without it the Court lacks the jurisdiction to proceed with the hearing and determination of the matter.
ALL PROGRESSIVE CONGRESS (APC) v.
I therefore agree with Learned Counsel for the Appellant that the motion dated 11/04/2016 was not ripe for hearing and the Lower Court had no jurisdiction to hear and determine the application. In Auto Import Export v. Adebayo (Supra) at page 582 paragraph: C – F this Court had this to say:
Where as in the present case, service of process is required, failure to serve it is a fundamental vice and the person affected by the order but was not served with the process, again as in the present case is entitled ex debito justitiate to have the order set aside as a nullity. See Obimonure v. Erinoso and Anor (1966) 1 All NLR 250, Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.364) 535, (1994) 10 SCNJ 109 at 128; Skenconsult v. Ukey (1980) 1 SC 6 at 26. Accordingly, service of a process in proceedings is fundamental to the assumption of jurisdiction. Failure to serve a process where service is required goes to the root of proper conceptions of recognized procedure of litigation. It is a fundamental vice which renders null and void an order made against the party who should have been served as the idea that an order can validly be made against a party who has no notification of the action against him is one that is clearly undesirable and, indeed unacceptable in our judicial system.
ALL PROGRESSIVE CONGRESS (APC) v.
It is well established that failure to effect service of process where it is required renders the proceeding and judgment a nullity. See NEW NIGERIAN NEWSPAPERS vs OTEH (1992) 4 NWLR (Pt. 237) at 626 and JULIUS BERGER (NIG.) LTD VS FEMI (1993) 5 NWLR (Pt.295) 612.
In EBOH VS OGBU (1994) 5 NWLR (Pt.346) 703 at 715. This Court per Muntaka-Coomassie, JSC (as he then was) stated thus;
"It was essential for the motion to have been served since the Court has no jurisdiction over a person who has not been served unless he of course submits to jurisdiction.
The two lower Courts were therefore clearly right when they came to the conclusion that the motion for judgment was never served on the respondents and that the judgment obtained thereon was a nullity and ought to be set aside.
See SKEN CONSULT NIG. LTD VS UKEY (1981) 1 S.C. 6 UNITED NIGERIA PRESS LTD & ANOR vs ADEBANJO (1969) 1 ANLR 431"
The law is well settled that service of a process on a party to a proceeding is fundamental. It is service that confers jurisdiction on the Court seised of the matter. Where there is failure to serve a process where service is required, the person entitled to be served but not so serviced, is entitled, ex debito justicae to have it set aside. See: S.G.B.N. Ltd. Vs. Adewunmi (2003) 10 NWLR (Pt.829) 526; Mark vs Eze (2004) 5 NWLR (Pt.865) 54; Tsokwa Motors (Nig.) Ltd. Vs UBA Plc (2008) 2 NWLR (Pt. 1071) 347. Failure to effect service of a process on a party where service is required renders the proceedings null and void and of no effect.
Service of an originating process, such as the writ of summons, originating summons, notice of appeal, etc, is fundamental and goes to the root of the competence of the Court to adjudicate. Where an originating process has not been served on the adverse party, the non-service vitiates the entire proceedings and any orders made therein. The premise for this proposition is that a party to a proceeding should know or be aware that there is a case against him in order to afford him adequate opportunity to defend himself if he desires to do so. See: Odutola vs Kayode (1994) 4 SCNJ 1; Leedo Presidential Hotel Ltd. Vs B.O.N Ltd. (1998) 10 NWLR (Pt. 570) 353 @ 381 B; Okoye vs C.P.M.B Ltd. (2008) 15 NWLR (Pt. 1110) 335; Skenconsult Nig. Ltd & Anor vs Ukey (1981) 1 SC 6 @ 26. It is also in keeping with the principle of fair hearing enshrined in Section 36(1) of Constitution, as amended.
Order 2 Rule 6 of the Court of Appeal Rules, 2002 provides that service of the Notice of Appeal on the respondent shall be personal.
A Court's proceedings where there is non service of the initiating process constitutes a manifest breach of Section 36 of the 1999 Constitution which makes it mandatory for the Court to hear the defendant before deciding any issue against him. The lower Court in proceeding against the appellant, who is not served with the initiating processes of the appeal, stands clear breach of the Constitution. The Court's judgment suffers a fundamental defect and deserves, as rightly urged by learned appellant's counsel, to be set-aside. See Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC 6, Mark v. Eze (2004) 5 NWLR (Pt 865) 54 and Estate of Late Chief Humphrey I. S. Disi V. Ecodril Nigeria Ltd & Ors (2016) LPELR-40438 (SC).
Service ensures jurisdiction. Every other process filed in the absence of service of the originating process has nothing to stand on to say the least being countenanced by a Court of law. See the case of Miden Systems Ltd V. Effiong (2011) 2 NWLR (Pt. 1231) 354 at 366 wherein it was held that jurisdiction of a Court is properly invoked by service of the Court Process on the defendant. Service goes to the jurisdiction
Same principle was applied in the case of Ndasuko Vs Mohammed (2007) 2 WRN 178.
As rightly observed on behalf of the appellant therefore, by proceeding to file a purported brief of argument and several motions without service of the notice of appeal and records of appeal on the appellant, the respondent as appellant before the lower Court "built a castle in the air." In other words, there was no foundation.
A Court of law cannot properly be said to be discharging its primary duty of dispensing justice evenly if it listens to one party only to a dispute in the absence of the other. See the case of INEC V. Nnaji (2004) 16 NWLR (Pt. 900) 473. See also Uwazurike & Ors V. A-G Federation (2007) 14 WRN 112; and Auto Import & Export V. Munguno(2003) 1 NWLR (Pt. 801) 221.
Also in the case of Mbadinuju v Ezuka (1994) 8 NWLR (Pt. 364) 535 at 554 this Court held that:-
where notice of any proceeding is required, failure to notify any party is a fundamental omission which entitles the party not served and against whom any other is given in his absence to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction for the making of the order has not been fulfilled; such an order is regarded as a nullity."
The clear implication of the foregoing, as rightly put forth by the appellants counsel, is that the lower Court assumed jurisdiction over an incompetent appeal which suffers from the fundamental defect of non-service of originating processes on the appellant as respondent before it. In the case of Kida V. Ogunmola under reference supra, at page 393, this Court held and said:- "It is trite law, that after its issue a writ of summons or any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the defendant of the claims against him, --- - . Where service of a process is legally required the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitae to have the order set aside as a nullity. See Obiomonure Vs. Erinosho (1966) 1 ALL NLR 250, Mbadinuju Vs. Ezuka(1994) 10 SCNJ 109. Sken Consult Vs. Ukey (1980) 1 SC 6, Adeigbe Vs. Kusimo (1965) NWLR 284. Service of the originating process has been held to be a condition precedent to the exercise of jurisdiction by the Court out of whose registry the originating process was issued. See National Bank Vs. Guthrie (1993) 4 SCNJ 1 at 17... In my view, the validity of the Originating Processes in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. -- - the failure to commence proceedings with a valid Writ of Summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the...
Again and on the fundamental institution of service of process, this Court, in the case of Sken Consult (Nigeria) Ltd & Anor V. Ukey (1981) 1 SC 6 at 26, unanimously held after reference made to the Madukolu's case supra,and said:-
"The service of process on the defendant so as to enable him appear to defend the relief being sought against him and the appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice."
The absence of service forecloses foundation. See again the case of Macfoy V. UAC Ltd (1962) AC 152 where the absence of foundation denotes that:
"you cannot put something on nothing and expect it to stay there. It will collapse.
The provision of Order 2 Rule 6 of the Court of Appeal Rules, stipulates that it is mandatory for the service of the Notice of Appeal on a Respondent to be personal. The Rule states as follows:-
"Except as may be otherwise provided in these Rules or in other written law, no notice or other written communication in proceedings in the Court need be served personally except the notice of appeal."
In other words, a close look at the Record of Appeal reveals clearly that at no point in time did it reflect that the Notice of Appeal from the trial High Court to the Court of Appeal, which is the initiating process, was ever served by the trial High Court Registry or the Respondent on the Appellant.
In a very recent unreported Appeal No. SC.660/2015- Ihedioha v. Okorocha delivered on 29th October, 2015, at pages 29-32 the decision of this Court, the foregoing principle was re-affirmed wherein it struck out the appeal before it for non-service of the notice of appeal in the following terms:-
The question which I wish to attempt an answer is whether the proven failure by the appellants to serve the named respondents the notice of appeal is a mere irregularity or whether it goes to the root of the appeal. Let me state categorically that although the Court is not a slave to its rules, it shall at all times ensure that its rules are obeyed.. the Court must draw a dichotomy between non-compliance arising from non-service of the Court process as opposed to and distinct from non-compliance arising from other procedural aberrations like non-endorsement of the Court process.
I must emphasize that service of process is an important aspect of the judicial process. Failure to serve a named party with Court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Any breach of this principle renders proceedings a nullity Service of process, I must say is a fundamental issue and condition precedent before the Court can have competence to adjudicate.
In total support, I wish to add a few words of my own, on signing of Court process, In the name of firm or partnership, contrary to the Provisions of Section 2(1) and 24 of the Legal Practitioners Act LFN, 2004. The decision of this Court in OKAFOR VS NWEKE (2007) 3 S.C. (Pt.11) 55 at 64-65, was basically determined based on the Provision of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation of Nigeria, 2004.Section 2(1) of the Legal Practitioners Act Laws of the Federation of Nigeria 2004 provides as follows:- "Subject to the provisions to this Act, a person shall be entitled to practice as a Barrister and Solicitor if, and only if, his name is on the roll. Section 24 of the Legal Practitioners Act supra provides that: "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 Practice as a Barrister or as a Barrister and Solicitor, either generally or for the purpose of any particular office or proceedings." The purpose of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation of Nigeria, 2004, is to ensure that only a Legal Practitioner whose name is on the roll of the Supreme Court should sign Court processes. It is to ensure responsibility and accountability on the part of a legal practitioner who signs a Court process. It is to ensure that fake lawyers do not invade the profession. See:- IBRAHIM V. BARDE (1996) 9 NWLR (Pt.474) 513; U. A. VENTURES VS FCMB (1998) 4 NWLR (Pt.547) 546; IBWA V. IMANO (NIG) LTD & ANOR(1988) 7 SC. (Reprint) (Pt.III) 114. The words employed in drafting Sections 2(1) and 24 of the Legal Practitioner Act, Law of the Federation of Nigeria 2004, are simple and straight forward. The literal construction of the Law is that Legal Practitioners who are animate personalities should sign Court...
The Criminal Procedure Law has provided for the correct procedure for service of process on the Accused/Appellant. Where a statute prescribes a certain mode of service of a process, the non-compliance with the provisions of the statute makes the service void. See Amadi v NNPC (2000) 6 SC Pt. 1 Pg. 66; Oyun LG v. Amalgamated Building Society Ltd (2006) All FWLR Pt. 334 Pg. 1983.
A trial court takes one of three decisions in an ex parte application, it can:
(a) refuse the application; or
(b) grant the application; or
(c) order that the ex parte application be served on the adverse party. By this, the ex parte application automatically becomes one on notice."
It is trite law that where a party has an Ex Parte application before a court, only the applicant party is allowed to address the court. The other party need not be in court and even when in court can only be seen and not heard. In 7up Bottling Co. v. Abiola & Sons (1995) 3 NWLR Pt. 383 Pg. 275. In N.A.A v. Orjiakor (1998) 6 NWLR Pt. 553 Pg. 253, the Court held as follows:
"The Latin expression "ex parte" means on one side only; by or for one party; done for, on behalf of; in application ex parte, only the applicant is heard. An ex parte application has no respondent. Even if the defendant in the matter is present in court, he cannot be heard unless with the permission of the court. In most cases the court does not grant such permission-
I agree with the learned counsel for the Respondent's submission that there is a distinction between improper service and non-service and that an irregular service can be set aside by the court upon timeous application by the aggrieved party. See Adeigbe v. Kusimo (Supra). The failure of a party to apply timeously for regularization of irregular service is deemed as acquiescence or waiver of such irregularity. Ogbuagbu JSC in Chief Abe & Anor v. UBN Plc (2005) All FWLR (Pt. 291) Pg. 1727 at 1738-1738 held that;
"The complaint improper service which has in fact brought the notice to the attention of the defendant who has by his conduct of entering appearance demonstrated that he has notice of the action, is considered as seeking to rely on technicalities"
The position of the law which has been handed down by the apex Court is that abuse of process is the improper use of the judicial process by a party in litigation. It may occur in various ways, predominantly demonstrated by the institution of multiplicity of actions on the same subject matter between the same parties. Another incidence is the institution of actions by same parties simultaneously in different Courts even though on different grounds, where the two similar processes are used in respect of the exercise of the same right in order to achieve the same goal.
See the cases of IKINE & ORS Vs. EDJERODE & ORS (2001) LPELR-1479 (SC); ASHEY AGWASIM & ANOR Vs. DAVID OJICHIE & ANOR (2004) 18 NSCQR 359 at 36. Put simply, abuse of Court process entails the usage of the process of the Court mala fide and improperly, and in most cases, to the annoyance and irritation of another party.
Therefore, where it is found that two or more actions have been commenced before a competent Court on the same subject matter and the parties in the two suits are the same, the only inference that will be drawn is that the intention, purpose and bringing the suit before the Court, which is later in time, is to harass, irritate and annoy the other party against whom the suit was commenced; and also interfere with the administration of justice. PER KOLAWOLE, J.CA.
It is well settled beyond any equivocation, that the service of an originating process on a named party, who ought to be served, is an indispensable aspect of any adjudication. It goes to the root of the Court’s competence and jurisdiction to entertain the suit. Service of an originating process accords with the guarantee of the right to fair hearing as provided for in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. It notifies the party of the institution of an action against him and affords him the opportunity, if he so desires, to defend the claim.
Failure to serve an originating process renders the entire proceedings a nullity, See: Kida vs Ogunmola (2006) 13 NWLR (Pt. 997) 377, Obimonure vs Erinosho (1966) 1 ALL NLR 250; Skenconsult vs Ukey (1981) 1 SC 6 @ 26; Mgbenwelu vs Olumba (2016) LPELR KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
My lords, the primacy, or should I say, the primary place, of service of process, more particularly, originating process in the adjudicatory process cannot be overemphasized. It is a cardinal requirement of our procedural law that has dovetailed over the years into threshold issue of jurisdiction and competence. Thus, without service, proper service at that, where service of process is required, any proceeding founded thereon is a nullity.
In appellate litigation, the Notice of Appeal is indisputably the originating process. Its service personally on all the parties directly affected by the appeal is sine quo non unless there is an Order of Court for substituted service of the Notice of Appeal. It follows therefore, failure to serve a Notice of Appeal on a party directly affected by the appeal is fatal and would render any proceedings founded thereon a nullity. See Order 2 Rule 2 of the Court of Appeal Rules 2021.
See also NUT Taraba State V. Habu (2018) 15 NWLR (Pt. 1642) 381 AT pp. 393-394; Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 AT pp. 176-177. PER GEORGEWILL, J.C.A.
The position of the law on amendment of process or processes of Court in a suit or action is very clear and settled to the effect that once an amendment is made or granted by the Court seised of the matter to any process, the earlier processes ceased to be in existence and no longer defines the issues between the parties to the action or suit.
Therefore, the position in the Appellant’s case herein is that upon the filing of the aforesaid Further and Better Amended Statement of Claim by the Appellants on 8/3/2018, the Amended Statement of Claim filed on 8/5/2017 ceased to be the pleading defining the issues in the Appellant’s suit. The Further and Better Amended Statement of Claim filed on 8/3/2018 replaced the Amended Statement of Claim filed on 8/5/2017 and the extant Further and Better Amended Statement of Claim related back to the date the action was first filed in Court. See: 1.JOHN OFORISHE V.
NIGERIAN GAS COMPANY LTD (2018) 2 NWLR (PART 1602) 35 at 56 G-H to 57 A per RHODES- VIVOUR JSC said: “After amendment of pleadings by both sides, the final pleadings were the amended statement of claim filed on 3rd May 1995 and the further amended statement of defence filed on 7th June, 1995. The purpose of amending pleadings is to prevent the Court from giving judgment in ignorance of facts that should be known before rights are finally decided. Put in another way amendments to pleadings are ultimately to enable the Court decide the real issues in controversy between the parties.
The position of the law is that the amendment relates to the original pleadings and all amendments before the final amendments seize to be pleadings to be relied on in the trial. They remain worthless. See Rotimi Ors v. Mc Gregor (1974) II SC p. 133; C.G.D.G. (Nig) Ltd Idorenyin (2015) 5-6 SC (Pt. II) p. 1; (2015) 8 NWLR (Pt.1475) 149.” PER IGE, J.C.A.
Where there are defects in the processes and if there are other competent grounds which can sustain the appeal, the use of preliminary objection is discouraged and a motion on Notice is the most appropriate process to file, see SPDC (NIG) V AMADI & ORS (2011) LPELR-3204 in which the Supreme Court held thus: “Preliminary Objections are filed against the hearing of an appeal and so once it succeeds, the appeal no longer exists. All often, we see preliminary objections filed against one or more grounds of appeal.
Once there are other grounds that can sustain the appeal, a Preliminary objection should not be filed instead a Notice of Motion seeking to strike out the defective grounds of the appeal should be filed.” The Appellate Courts have continued to advice counsel to file appropriate processes but those words of counsel have remained unheeded as counsel still file the wrong the process thereby wasting Courts valuable time. In this appeal even if the objection succeeds it would not terminate the appeal because there is a competent ground of appeal that can sustain the appeal and the objective of a Preliminary Objection seeking to terminate the appeal has been defeated.
The objection is against ground two only and there is a competent ground one to sustain the appeal, see ODUNUKWE V OFOMATA (2010) 18 NWLR (Pt. 1225) 404 . PER NIMPAR, J.C.A.
Section 2(1) of the Legal Practitioners’ Act, CAP L11 LFN 2004, states thus:- “Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.” From the above provision, it is clear that the person who is entitled to practice as a legal practitioner must have had his name on the roll. It does not say that his signature must be on the roll but his name.
Section 24 of the Legal Practitioners Act defines a “Legal Practitioner” to be: “A person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceeding.” The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner he must have his name on the roll, otherwise he cannot engage in any form of legal practice in Nigeria. It follows therefore that only a person with his professional name is entitled to practice law in Nigeria and this does not include a legal firm.
On no account should the name of a Law Firm be used interchangeably with the name of a Legal Practitioner. The former has some corporate connotation while the later has none. It follows that where Court processes are issued in the name of a Law Firm, such processes are fundamentally defective and remain incompetent, null and void. In SLB Consortium Ltd. v. NNPC (2011) 4 SC (Pt. 1) 86, this Court opined: “All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written.
Thirdly, who counsel represents. Fourthly, name and address of legal firm”. ABDU ABOKI, J.S.C.
It is now settled beyond any form of equivocation that by virtue of Section 2(1) and 24 of the Legal Practitioners Act, only a person whose name appears on the roll of Barristers and Solicitors in Nigeria, is competent to sign legal processes. A firm of legal practitioners does not come within the definition of a legal practitioner as provided for in the Act. This position of the law has been fully entrenched by numerous decisions of this Court.
A full panel of this Court in the case of Igbinedion vs Antia (2017)12 SC (Pt.x) 102 at 120-123, had cause to re-examine the authorities on the issue and held conclusively that the position of the law as regards the incompetence of a legal process not signed by a legal practitioner known to law has come to stay. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
….In the well-known case of Okafor V. Nweke (supra), where a Motion on Notice was signed by “J.H.C. Okolo, SAN & Co”, this Court per Onnoghen, JSC., (as he then was) at Page 62 Lines 25 & Page 64 Lines 5- 25, categorically said – The combined effect of the above Provisions is that for a person to be qualified to practice as a legal practitioner he must have his name in the roll, otherwise, he cannot engage in any form of legal practice in Nigeria. The law does not say that what should be in the roll should be the signature of the legal practitioner but his name.
That apart, it is very clear that by looking at the documents, the signature which learned counsel claimed to be his really belongs to J.H.C. OKOLO, SAN and CO or was appended on its behalf ‘since it was signed on top of that name. Since both counsel agree that J.H.C. OKOLO, SAN & CO is not a legal practitioner recognised by the law, it follows that the said J.H.C. OKOLO, SAN & CO cannot legally sign and/or file any process in the Courts and as such the Motion on Notice – Notice of Cross-Appeal and brief of argument- all signed and issued by the firm known and called J.H.C.
OKOLO, SAN & CO. are incompetent in law, particularly as the said firm of J.H.C. OKOLO, SAN & CO is not a registered legal practitioner. This Court maintained the same position and reiterated its point that a law firm “cannot legally sign and/or file any process in the Courts”, and any such process signed by a law firm is “incompetent in law” in FBN v. Maiwada (supra) and SLB Consortium v. NNPC (supra). In SLB Consortium v.
NNPC (supra), the originating summons was signed by a law firm, This Court per Fabiyi, JSC., at Pages 105-106 Lines 15-5 held that- It is not in doubt that the signature of “Adewale Adesokan & Co.” on the originating summons robs the process of competence ab initio as the said firm is not a registered legal practitioner enrolled to practice law as Barrister and Solicitor in this Court – In the prevailing circumstance, all the proceedings, which rested on the inchoate originating summons, are deemed not to have taken place in law. One cannot put something on nothing and expect it to stand.
This is as stated in UAC v. Macfoy (supra). – It has been established that the originating summons signed by a Law Firm of “Adewale Adesokan & Co was not initiated by due process. As same is incompetent, this Appeal rests on nothing.” The same Fabiyi, JSC, at Pages 28-29 Lines 25-5 stated as follows in FBN v. Maiwada (supra) – We are interpreting a law, which seeks to make legal practitioners responsible and accountable in modern times – I see nothing technical in insisting that a legal practitioner should abide by dictates of the law in signing Court processes.
It is my view that if the decision in Okafor v. Nweke is revisited as urged, more confusion will be created. The decision in Okafor v. Nweke is not in any respect wrong in law – The convenience of counsel should have no pre-eminence over the dictate of law. The law as enacted should be followed. I do not for one moment see any valid reason why the decision in Okafor v. Nweke should be revisited. It has come to stay and legal practitioners should reframe their minds to live by it for due accountability and responsibility on their part and for due protection of our profession.
The decision in Okafor v. Nweke (supra) has come to stay, that is the message entrenched in the decisions of this Court thereafter – see Hamzat & Anor v. Sanni & Ors. (2015) 1-2 S.C. 1, wherein this Court per Galadima, JSC., at Pages 17-18 Lines 5-10 very aptly stated as follows- This Court was faced with a similar situation -in Okafor v. Nweke – In SLB Consortium v. NNPC – this Court citing the case of Okafor v.
Nweke struck out the Plaintiff’s Originating Summons and Statement of Claim, both having been signed by “Adewale Adesokan Co”, who was held not to be a legal practitioner known to law – In view of our clear position in Okafor v. Nweke and other similar cases, I hold that, the Appellant’s statement of claim on which evidence was led were a nullity, same having been signed in the name of a law firm. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.