DEFECTIVE WRIT: Signing Of Originating Processes, Substantial Justice And Matters Arising -By Odatse Echo, Esq.

Know The Law: As It Is V290. Published: 5/5/2024.
By Odatse Echo Esq. ACIArb(UK) (researcher & legal consultant ).

INTRODUCTION:

In the realm of legal proceedings, the originating process stands as the gateway to justice.

Thus, several legal writers have written extensively on the subject. However, it would appear that the common man on the street of Wadata (a reasonable, right-thinking member of the society) who is an aggrieved party to a suit, who has been assured of having a good case by his lawyer, may not understand what a defective originating process means when his case is struck out or dismissed specifically on that ground. The lawyer and legal minds may have the time to read law articles on the subject and understand perfectly all the grammars and vocabularies and may even be familiar with phrases such as:

“the originating process, the writ of summons is defective and incurably bad…”

or may even have come across a clause such as:

“…this Originating Summons is a worthless sheet of paper, having being unsigned, or improperly signed, it robs the court of its jurisdictions. It is irredeemably incompetent and accordingly null and void, case dismissed”.

The common man on the street, the right thinking members of the society and the concerned litigant may not understand all the legal diction, the vocabularies and implication of the above. And all the other phrases used by legal writers and the court, as such, I have deem it fit to delve into the heart of this issue, shedding more light on the matter in the simplest way possible, for easy comprehension. Kindly take a seat and follow me keenly.

You see, the Nigerian legal system, the court, like a mighty tree, has roots strongly established on procedures. These procedures if they are not properly followed, no matter how good a case may be, it may suffer failure, or be thrown to the dustbin by the court, even if the matter was commenced since the dim past, since the days of our forefathers and has lasted for centuries, it does not matter to the court, as long as the proper procedure of initiating the suit was not followed, it will crumble. The suit will fail. It will suffer untimely death, I mean, it will not succeed. Never! That is what the law says. And the law remains like mountain Gibraltar that cannot be moved. It is the law, I am sorry, it is.

ORIGINATING PROCESS DEFINED:
You may wonder what the meaning of Originating Process is and why the hell does it needs signing and some special treatment that failure to treat it specially may be fatal to a case. I have also wondered as much, too but not anymore.

Well, for the sake of simplicity and being brief, the Supreme Court in the case of PRINCE MOBADENLE & 3 ORs v. ADISA WAHEED ABERUAGBA & 6 ORS (2023) unreported) held that originating process is the means through which court proceedings are commenced. In other words, it is the way in which actions are commenced before the court. And these ways, are in four modes, namely:
1. Writ of Summons,
2. Originating Summons,
3. Originating Motion
4. and Petition. See ODEDO v OGBUEGBEGO (2015).

Interestingly, the court has held that these are the only acceptable modes of commencing an action before a superior court of record and these modes constitute the foundation upon which all other processes in the suit are laid, be it statement of claim, statement of defence, counter-claim, interlocutory applications, affidavits and others. See ADAPI v BANUSI (2008).

Thus, signing of these originating processes by a lawyer representing his client (a litigant in a case) is very fundamental. It is a crucial step in legal proceedings, that if missed, forgotten or if improperly done or done in error, will lead to great consequences. This is because, such act robs the court of jurisdiction and renders the case a nullity, no matter how well conducted. See MADUKOLU v NKEMDILIM (1962) 1 ALL NLR (PT.4) 587.

Now let’s get to *THE CRUX OF THE MATTER*

The court in a plethora of cases, has held that any of the originating processes mentioned above, when used by a Lawyer to commence a suit, must be properly signed by a lawyer licensed to practice law in Nigeria, failure to do so, will render the case to fail even if the case is a good case and there are vital issues to be resolved by the court to address the concern of the parties to the case. The court may not have the latitude of time to entertain those vital issues since due process of law was not followed in filing the suit, in the first place. To the court, nothing was before the court to invoke its jurisdiction to entertain the matter in the first place. It does not matter how long the suit was filed or litigated upon. This is the position of the law and this position has not changed. Do you understand?

Interestingly, some litigants have benefited from this position and some have suffered grave and irrecoverable loss. Most especially litigants who have heard the good message that the court and the law advocate for substantial justice and not technicalities only to have their cases thrown to the dustbin after several years of legal battles, simply on grounds of a defective originating process. An error that their lawyer may have inadvertently committed, now the punishment have to be visited on them, even when the law appears to promote the mantra that counsel error should not be visited on thier clients in most cases.

Well, over the years, the court has said this particular error is so fundamental that it would affect everything if left unpunished. Hence, the much ado about defective originating process.

INSTANCES WHERE A CASE MAY FAIL AS FAR AS SIGNING OF ORIGINATING PROCESSES IS CONCERNED:

The court has held that:

1. An originating process no matter how good the case it initiates before the court may be, must not be signed by unknown person. This means that the identity and particulars of the lawyer that signs the process must be certain, clear, unambiguous and not open to conjecture. For instance in SLB CONSORTIUM v. NNPC (2011) 9 NWLR (PT. 1252) 317 it was held that a process, having been signed by an unknown or unnamed person for a Legal Practitioner, was, in the eyes of the law, not signed at all, and thus, incapable of invoking the jurisdiction of the trial court. And that the consequence of the manner in which the originating process was signed is that the same is fundamentally defective, and deprived the court of jurisdiction to entertain the matter. Also in the case of VF WORLDWIDE HOLDINGS LTD. v DANA SERV. LTD. (2023) 15 NWLR (PT. 1908) 573, it was held by the Court that: “From the above, it is without a doubt that the name and identity of the signatory to the Appellant’s originating process is an unknown person. This is an anomaly which the law treats as fundamental, since the requirement of the law is that a court process must be signed either by a party or his legal practitioner. None of the aforesaid persons signed the originating process of the Appellant in this case, rather, the process was signed for Prof Yemi Osinbajo, SAN by an unnamed proxy. This court is not in a position to speculate on the identity of this unknown proxy, and evidence cannot be taken to resolve his identity. The decision of this court on the incompetence of court process, not properly signed and filed, remains consistent and unequivocal.”

2. An originating process must not be left unsigned. This is because, an unsigned originating process is not only a worthless sheet of paper but a colossal waste to be thrown to the dustbin. See OKAFOR v. NWEKE (2007), 10 NWLR (PT. 1043) 521. Thus, an originating process is supposed to be sign by either the litigant or the lawyer to the litigant where the litigant employs the service of a legal practitioner. Accordingly, an originating process that is not sign at all, will automatically be rendered defective and incompetent. See. ALHAJI SHEHU ASHAKA v SAMSON CHIDI NWACHUKWU (2024).

3. An originating process cannot be sign in proxy. Thus, the practice of a lawyer signing a writ and writing “F” or “PP’ before appending signature is improper and has rendered such originating process defective and incompetent. Some lawyers and law firms, including the small and big firms do make this costly mistake. For instance, in the above case, the writ of summons was signed thus; “F” “signature/mark” Oba Maduabuchi, Esq, 4 New Zaria Terrace, Jos.” The Supreme Court held that when “F” or “PP’ is written before appending the signature to a document, the letter “F” represents “For” and the letter “PP” represents “by proxy,” showing that the signatory signed for someone else who is unable to sign the document. The court noted that there is nothing on the face of the Writ of Summons to show that it was signed by a legal practitioner. Their Lordships held that court processes are either to be signed by parties or their legal practitioner; the Legal Practitioners’ Act does not envisage the signing of court processes through an unknown proxy. Once it cannot be said who signed a court process, it is automatically rendered incompetent (OKAFOR v. NWEKE (2007), 10 NWLR (PT. 1043) 521. The court held further that the effect of an originating process not duly signed by a legal practitioner recognised to practice law in Nigeria by virtue of the provisions of Sections 2(1) and 24 of the Legal Practitioners’ Act, is a fundamental defect that robs the court of jurisdiction to entertain the suit.

4. An originating process cannot be signed by a law firm. Thus, the practice of lawyers signing a writ and instead of writing their names after the signature and then furnishing other particulars, but would rather prefer to write the name of their firms after their signature, is improper in law and would always render such an originating process incompetent. The apex court has held in SKYPOWER EXPRESS AIRWAYS LIMITED v. UNITED BANK FOR AFRICA PLC & ORS (2022) LPELR-56590 and has earlier given same position judicial imprimatur in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043); and SLB Consortium v. NNPC (2011) 9 NWLR (Pt. 1252) that once a Court process is signed in the name of a Law Firm and the person whose signature was appended cannot be identified to be a legal practitioner entitled to practice law by virtue of the provisions of sections 2(1) and 24 of the LPA, such process is incurable incompetent. See Obi v. INEC (2007) 7 SC, 268. For instance, in the case of ALHAJI SHEHU ASHAKA v SAMSON CHIDI NWACHUKWU (2024). The Supreme court held that “the Writ of Summons is irredeemably and fatally incompetent. It never activated the jurisdiction of the trial court in the first place, and in the eyes of the law, no proceedings were ever conducted before the trial court. Every step taken before the trial court and the lower court were predicated on the incompetent Writ of Summons. It is synonymous to placing something on nothing, it is bound to fall apart like a deck of cards. It is of utmost importance that such improperly signed processes be rejected and struck out, in order to weed out quacks disguising as legal practitioners.

Methinks that aside the above, it could also be irresistibly inferred from the cases aforementioned that:

5. An originating process cannot be said to have been properly signed if signed by a clerk, messenger, office assistant, paralegal, or secretary of a law firm on behalf of a litigant or the firm or lawyer.

6. It cannot be said to have been properly signed if signed by a person who was dead even before the case commenced. It cannot be said to have been properly signed by a non-existent fellow either.

7. An originating process cannot be said to have been properly signed by a lawyer whose name has been struck off the roll neither can a writ be said to have been properly signed if signed by a law student on internship, or a law graduate on externship or a paralegal in the employment of a firm, for and on behalf of the said Firm.

8. An originating process cannot be said to have been properly signed, if signed by a third party in proxy, for and on behalf of a known person, or a named lawyer.

In all these circumstances, such originating process is bound to fail, no matter how good the case may be, and how long it may have been litigated before the court.

WAYS IN WHICH ORIGINATING PROCESSES ARE TO BE SIGNED:

An originating process must be properly signed by a lawyer whose name is on the roll.

The signature of the lawyer, the name of the said lawyer vividly written, capacity in which the lawyer append his/her signature, that is, whether for plaintiff or claimant or petitioner, or defendant or respondent or applicant or the appellant, the name and address of the lawyer’s firm and other relevant particulars like phone number, email and etc.

The apex court has given judicial imprimatur to the position that the condition that the name of the Legal Practitioner must be provided clearly after the signature, is a fundamental one which cannot be overlooked. The procedure is the name together with the signature of the legal practitioner. Thus, it means that a mere signature without the name would be incompetent. For instance in the case of PEAK MERCHANT BANK LIMITED v. NIGERIA DEPOSIT INSURANCE CORPORATION (2011) 12 NWLR (pt. 1261) the Supreme Court held that lawyer signing processes on behalf of a principal partner in the chambers or firm must clearly provide some vital particulars, like his/her name and designation to show that he/she is a legal practitioner whose name is verifiable in the roll of registered legal practitioners. This is to avoid a situation where a quack, a non lawyer or a clerk, messenger or secretary would sign processes filed in Court on behalf of principal partners in chambers or the litigant(s).

THE LAWYERS RESPONSIBILITY:

Since the above is the legal position, it behooves on a lawyer to be diligent and always follow due process. The lawyer owes his client this duty which is none negotiable.

Examples abound where lawyers inadvertently omit their names, forget to sign originating process or even wrote the names of their law firms below the signature, most times, as their way of signing the originating process. It has been held that such inadvertence or anomaly renders the originating process void and the entire suit incompetent.

The Nigerian law is trite that only a legal practitioner within the meaning of section 2 (1) of the Legal Practitioners Act, Cap L11, LFN 2004, can sign an originating process and not a law firm owned by that legal practitioner. It is as simple as that.

SUBSTANTIAL JUSTICE AND MATTERS ARISING

Whereas it is undisputable that an originating process is the process that births legal proceedings. Being the process by which actions are initiated, its importance cannot be overemphasised. And in order for an action to be competent, the initiating process itself must not suffer from any fundamental defect; otherwise, the action will be on quicksand. It is therefore, not in doubt that the competence of an originating process goes to the root of the jurisdiction of a court.

Also, given the relationship between an originating process and jurisdiction, a competent originating process is crucial in activating the jurisdiction of court. And on the other hand, the incompetence of an originating process such as a Writ of Summons contaminates the entire proceedings, including processes filed and the judgement or decision rendered. Such an incompetent originating process is inchoate, lifeless, and, in the eyes of the law, non-existent. It can therefore, not give life to the proceedings before the court, thereby rendering every step taken null and void ab initio. see. ANI & ORS v. EFFIOK & ORS (2023) LPELR 59783 (SC).

However, should the court continue to allow every case that suffers from defective originating process to fail and then allow the litigants to suffer grave loss, or hang on uncertainty about their unresolved issues?

Methinks, with the greatest respect, that, that would defeat the purpose of doing substantial justice. Recall that in plethora of cases the court has held that substantial justice should be the ultimate goal, henceforth.

Even the Supreme Court in DAPIANLONG v. DARIYE (No. 2) [2007] 8 NWLR (Pt. 1036) 332 held per Onneghen J.S.C [as he then was] that:

“The reign of technical justice is over. On the throne now sits substantial justice. Long may you reign, substantial justice!”

The same court held in ALIKE v. OYE & ORS [2018] LPELR-45153(SC) 28-29, Paras. E-E that:

_“our duty as an Apex Court is to do substantial, justice-stark justice, based on fairness, which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context. We are not judicial technicians in the workshop of technical justice. The jurisprudence or logic of our reasoning is, as humanly possible, devoid of technicalities… The need to do substantial justice and avoid delving into the error of technicalities is well settled. Even in cases where errors of omission or commission called blunders have been made, it is unjust to hold that because blunders have been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”

If the above be the ultimate goal of the Nigerian courts and the courts are concerned only with substantial justice and the merit of the case brought before them, then it would therefore appear from the cases cited above that their decision on the effect of defective originating processes is progressing towards strictly promoting technicalities than actually doing substantial justice. There is a need to evolve.

Methinks, the focus of the court should be centered on determining the substantive issues between parties on the merit and that goal should be supreme, no matter what.

It is a fact of common knowledge that the Nigerian legal system moves in a slow pace. With such slow court system in which a case may take more than a decade to be determined from the trial court to the Supreme Court, a litigant’s hope and time in getting justice would have been sacrificed on the alter of strict procedural rule simply on the ground that an originating process was defective. In the case of PRINCE MOBADENLE OYEKAN & ORS v ADISA WAHEED ABERUAGBA & 6 ORS (supra) for instance, it took nearly three decades for the litigants to litigate the case, only for the said matter to be dismissed on grounds of a defective originating process, leaving the substantive matter between the parties hanging and unresolved. The law hits hard and harsh in this case as the litigants got nothing really substantially resolved after battling for over 25 years. There may be worse case scenario than the above.

Conclusion and Recommendation.

Conclusively, it is humbly submitted that taking the inadvertence of counsel on innocent litigants negates the goal of doing substantial justice. As such, the rule on defective originating process should be relaxed or subject to certain exceptions. It is high time, that we have exceptions and sub-exceptions to the rule and legal position.

It is recommended that:
1. Where the originating process is incurably and irredeemably bad on the ground that it was unsigned, the matter/suit should merely be struck out, refiled, and relisted subsequently, upon payment of huge cost by the lawyer, and the originating process should be perfected by properly signing it. This should be at any stage of the proceedings.

2. More so, the rule may be relaxed to be that the court can raise the issue of unsigned originating process _suo moto_ at any stage of the proceedings, since it affects its jurisdiction and then resolve the issue by striking the case out and ordering that it be properly refiled with huge cost on the lawyer that files it with the anomaly, mistake, or inadvertence and for it to be decided on the merit. This is for the purpose of doing substantial justice.

3. Where the originating process is defective on grounds of improper signing, like it being signed by a law firm or by a lawyer in proxy, the court may call for evidence and order that that particular lawyer provide evidence of being a licensed lawyer in Nigeria and proof of practicing with the said firm in the matter. It is trite that a law firm cannot be called to bar and does not have its name on the roll; however, where it can be shown to the satisfaction of the court that although the process was signed in the name of a law firm, that notwithstanding, the said firm truly exists having therein a licensed lawyer who signs the originating process, such originating process should not be invalidated; rather, a huge cost should be awarded against the party who commits the anomaly/inadvertence while the substantive issues in the case are resolved on the merit.

4. It is further recommended that lawyers exercise the utmost diligence required of professionals and should be up to date with the law, due process and due legal procedures.

5. The common man, the reasonable, right-thinking member of society, as a client or litigant, should exercise precaution in choosing a lawyer and be ready to bear the outcome of his case, even while ensuring that his lawyer knows what he is doing by following up with his case without ceasing.

Source: BarristerNg