Whether a Party Can Ask the Court to Strike Out a Matter Instituted By Him Owing to the Defect In His Originating Process

CASE TITLE:   ESIRI v. YEP & ANOR (2023) LPELR-59847(CA)

JUDGMENT DATE:   10TH FEBRUARY, 2023

JUSTICES:                 HABEEB ADEWALE OLUMUYIWA ABIRU, JCA

                                  PETER OYINKENIMIEMI AFFEN, JCA

                                 MOHAMMED LAWAL ABUBAKAR, JCA

DIVISION: YOLA

PRACTICE AREA:           CIVIL PROCEDURE

FACTS:

The 1st Respondent/Cross-Appellant as Plaintiff instituted an action claiming declaratory, injunctive, and monetary reliefs against the 2nd Respondent/1st Cross-Respondent, and one Dr. Frederick Esiri (as Defendants) over a parcel of land known and called Guk, situate along Dembe Road, near Alhaji Panyo’s grazing land in Sardauna Local Government Area of Taraba State.

The Defendants subjoined separate counterclaims to their respective statements of defence.

At the conclusion of the trial, the trial judge dismissed the main claim as well as the two counterclaims as unproven, hence the main appeal and the cross-appeal. Dr. Frederick Esiri died during the pendency of this appeal and his son; Mark Esiri was substituted for him as Appellant/2nd Cross Respondent upon the order of the Court of Appeal. Due to the jurisdictional issue that was raised in the cross-appeal, the same was considered first.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the sole issue thus:

” Whether the lower Court was right when it entertained the suit before it, amended the writ and the 1st Respondent’s counterclaim, heard evidence thereon and proceeded to deliver judgment?”

COUNSEL SUBMISSION

The learned counsel for the Cross-Appellant called in aid the case of WIKE NYESOM v DAKUKU PETERSIDE (2016) 65 NSCQR (PT 3) 1325 at 1451 submitted that the trial Court was wrong to have assumed jurisdiction to entertain the suit in that the writ of summons (being the originating process) was not signed by the plaintiff or his counsel and the entire suit was consequently incompetent. He cited the case of BRAITHWAITE v SKYE BANK (2012) 52 NSCQR (PT 2) 458 at 468.

He argued that an incompetent process cannot be cured by an amendment, as such the defective writ of summons could not be salvaged by the amendment granted by the trial Court. The case of MINISTRY OF WORKS AND TRANSPORT v YAKUBU (2013) 53 NSCQR (PT 2) 1 at 20.

In response, the counsel for the 2nd Cross-Respondent conceded that an originating process can only be signed by a legal practitioner properly so called as held in SLB CONSORTIUM LTD v. NNPC supra.

He however contended that the principle and authorities cited [which relate to the invalidity of Court processes that are not signed by a legal practitioner] are inapplicable in the present situation where a legal practitioner properly so-called failed to sign a Court process after writing or printing his name on the roll on such a process; that the processes before the trial Court were prepared and issued by O. S. Kara, Esq., who is a legal practitioner properly so called, and since the Cross Appellant’s contention is not that O. S. Kara, Esq., is not a legal practitioner properly so called, the originating processes contained in the records are not affected by the type of incompetence envisaged in the cases cited, as such the amendment granted by the lower Court was superfluous for having been engineered by undue apprehension, insisting that it was sufficient signing that the legal practitioner O. S. Kara, Esq., has printed his name on the processes.

He relied on SLB CONSORTIUM LTD v N.N.P.C. (2011) 4 SC (PT 1) 86 at 97 – 100 and urged to hold that there is nothing in the originating processes filed before the trial Court that ought to have denied the Court of jurisdiction.

Counsel submitted that even if there is something wrong with the originating processes, the Cross Appellant cannot benefit from his own wrong to the detriment of the 2nd Respondent by arguing that the trial Court had no jurisdiction to determine the 2nd Respondent’s counterclaim simply because his own processes are bad.

DECISION/HELD:

In conclusion, the cross-appeal succeeded. The judgment of the trial High Court inclusive of the entire proceedings was set aside for being nullity on the ground that the writ of summons filed at the Court was incompetent.

RATIO:

PRACTICE AND PROCEDURE- COURT PROCESS(ES): Whether a party can ask the Court to strike out a matter owing to the defect in his own originating process

“…I have given more than passing consideration to the 2nd Cross Respondent’s further contention that ‘the Cross Appellant whose process is defective cannot benefit from his own wrong by insisting that the lower Court had no jurisdiction to entertain the counterclaim because his own processes are bad’. I reckon that it should ordinarily taste sour in the mouth of the Cross-Appellant (as the plaintiff in the Court below) to argue on appeal that the defective writ of summons issued by him robbed the Court of jurisdiction to entertain the 2nd Cross Respondent’s counterclaim.

But owing to the fundamental and intrinsic nature and effect of the jurisdiction in judicial administration, this Court cannot shut its eyes to the incompetence of the suit flowing from the defective writ of summons dated 29/1/09 that purportedly originated the suit merely because the point is raised by the Cross-Appellant (qua plaintiff).

Since it is neither too early nor too late in the day to raise the issue of jurisdiction, nor is the Court finicky or fussy about the manner or by whom it may be raised, the deleterious effect of the defective writ on the jurisdiction of the lower Court to adjudicate cannot be wished away. It would seem therefore that this is one instance in which an appellate Court should preoccupy itself with the ‘power of the message and not the image of the messenger’.

As his Lordship, Okoro, JSC intoned in YUSUF v MOBIL OIL (NIG) PLC [2020] 3 NWLR 1 SC at 15: “The truth must be told that where a writ of summons or statement of claim is incompetent, as in this case, the Court would lack the jurisdiction to entertain the matter. Where the matter is heard and determined on the incompetent process, the Court would have engaged in a wasteful judicial exercise, no matter the efforts put into it. The entire proceedings are void and liable to be set aside.” Per AFFEN, J.C.A.

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