EFFECT OF A DEFECTIVE WRIT OF SUMMONS ON A COUNTERCLAIM

CASE TITLE: EFFANGA & ANOR v. EFFANGA (2021) LPELR-55157(CA)

JUDGMENT DATE: 16TH JULY, 2021

PRACTICE AREA: CIVIL PROCEDURE.

LEAD JUDGMENT: MUHAMMED LAWAL SHUAIBU, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on the issue of signing of a writ of summons.

FACTS

This is an appeal against the judgment of the High Court of Cross River State delivered by Hon. Justice Obojor A. Ogar on 16th day of July 2016.

The Appellants instituted an action against the Respondent vide an amended statement of claim filed on 13/5/2013 seeking declaratory reliefs and an order of perpetual injunction.

Upon being served with the statement of claim, the Respondent denied the claims of the Appellants and counter claimed.

In brief, the facts of the dispute between the parties are that the Appellants and the Respondent are siblings of the same parents struggling over the control and management of the properties of their late father Chief Effiom Effanga Oku, who died intestate in 2004. The 1st Appellant is the first son, though not the eldest child of their father, while the Respondent, a female, is the eldest child of their father. The Appellants contend that the 1st Appellant as eldest son is entitled to administer the estate for the benefit of other siblings under Efik customary law and that the properties include those of their aunt, late Ann Bassey Effiom Duke inherited by their father upon her death without a child. The Respondent on the other hand contends that the 1st Appellant had forcefully taken over possession of all the title documents of their late father’s properties upon his death and has been administering same since 2004 without rendering account. And that their late aunt Ann Bassey Effiom Duke had willed all her properties to her leaving nothing for their father to inherit.

After hearing the case, the High Court granted only the 1st relief sought by the Appellants and granted the counterclaim of the Respondent in part.

Dissatisfied, the Appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on a sole issue:

 Whether the omission on the part of the claimant’s counsel in the lower Court to sign the originating process in the suit leading to the present appeal rendered both the appellants’ writ of summons filed on 13th July 2009, and the respondent’s counterclaim in the lower Court a nullity?

DECISION/HELD

In conclusion, the Court allowed the appeal and struck out the suit at the High Court for being a nullity on the ground of lack of jurisdiction of the High Court to entertain the suit upon the unsigned writ of summons.

RATIOS:

• ACTION – ORIGINATING PROCESS(ES): Importance of validity of originating process in a proceeding
•  ACTION – ORIGINATING PROCESS(ES): Whether it is mandatory for a claimant or his legal practitioner to prepare and sign an originating process
•  ACTION – WRIT OF SUMMONS: Effect of a defective writ on a counter claim
• PRACTICE AND PROCEDURE – SIGNING OF COURT PROCESS(ES): Effect of failure to sign a writ of summons