Circumstances where the Statement of Claim will not Supersede the Writ of Summons
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 22nd Day of January 2021
Before Their Lordships
Nwali Sylvester Ngwuta
John Inyang Okoro
Chima Centus Nweze
Uwani Musa Abba Aji
Justices, Supreme Court
ADEKUNLE AJIBODE Appellants
CHIEF RAIMI AJIBODE
CHIEF M. A AJIBODE
DAUDA GBADAMOSI Respondents
PRINCE SADIRU OBALANLEGBE
MURAINA ABATAN (For themselves and on behalf of Aidokun-Ogbo Family of Ewupe)
(Lead judgement delivered by Honourable Justice Nwali Sylvester Ngwuta, JSC)
The Respondents commenced Suit No. HCT/72/1995 against the Appellants by a Writ of Summons filed at the High Court of Ogun State, seeking inter alia, a declaration that the 1st to 5th Appellant are not members of or related to Adoku-Ogbo Family of Ewupe, Otta, Ogun State. The Statement of Claim was amended three times and the final Amended Statement of Claim was filed on 25/4/2002. The 1st to 5th Appellant filed their Statement of Defence. At the conclusion of the trial, the court granted two reliefs in favour of the Respondents and dismissed the other reliefs sought by the Respondents.
Dissatisfied with the judgment of the trial court, the Appellants appealed to the Court of Appeal, which court allowed the appeal. The appellate court affirmed the judgment of the trial court in respect of the two reliefs which the trial court granted in part. Dissatisfied with the judgment of the Court of Appeal, the Appellant appealed to the Supreme Court.
Issue for Determination
The following sole issue was determined by the apex court in respect of the appeal –
Whether the lower court had jurisdiction to sit on an appeal emanating from the judgment delivered by the trial court, being a matter that originated from a Writ of Summons signed by the law office of Chief Toyer Coker & Co.
Counsel for the Appellant submitted that the issue of jurisdiction can be raised in any proceedings, even at the Supreme Court, for the first time. He added that once the issue of jurisdiction is raised, it must be resolved before any further step is taken in the appeal. Relying on the decision in RAJI & ORS v. PAYE (2003) 7 SCN 55 at 63, he urged the court to hold that failure to raise the issue either at the trial court or the Court of Appeal will not deprive the Appellants of the right to be heard on the issue of jurisdiction. Further, counsel relied on the case of MADUKOLU v NKEMDILIM (1962) 1 All NCR 587, in support of his position on when a court can assume jurisdiction in a matter. He referred to pages 1 to 23 of the summons and the ex parte motion seeking approval of the trial court for the Respondents to institute and prosecute the suit in a representative capacity. Counsel emphasised that the said processes were signed by the law firm of Chief Toye Coker & Co. which is not qualified under Section 2(1) of the Legal Practitioner’s Act to sign legal processes. He reproduced Section 2(1) of the Act and relied on the decision in OKAFOR v NWEKE (2007) All FWLR (Pt. 368) 1016 at 1025 – 1027, in urging the court to dismiss the suit.
Responding to the submissions above, counsel for the Respondents conceded that a threshold issue can be raised even on appeal to the Supreme Court and that the court has laid down condition for the competence of a matter before it. The conditions include the case coming before the court by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. He relied on MADUKOLU v NKEMDILIM (supra) and SKEN CONSULT NIG. LTD v UKEY (1981) 1 SC 6 at 36. Counsel also agreed with the doctrine of stare decisis and the case of OKAFOR v NWEKE (supra), which was followed in SLB CONSORTIUM LTD v NNPC (2011) 4 SCNJ 211. However, he submitted that a judgment is an authority for what it decides – EMEKA v OKADIGBO & 4 ORS (2012) 18 NWLR (Pt. 1331) 55 at 95- 97. The two cases of OKAFOR v NWEKE (supra) and SLB CONSORTIUM LIMITED v NNPC (supra) in which the Originating Summons and Amended Statement of Claim were signed by the law firm of Adewale Adesokan & Co., the objections were predicated on a breach of the rules of court. He distinguished these cases by stating that in the instant case, the ground of objection is not predicated on any rules of court.
Counsel argued further that the Statement of Claim is part of the originating process and when it is filed, it supersedes the Writ of Summons and the content therein determine the jurisdiction of the court to entertain the suit. He argued that the Statement of Claim, which according to him, is part of the initiating process, was signed by a legal practitioner. He urged the court to distinguish the facts of this case from the fact of OKAFOR v NWEKE and arrive at a different conclusion from the referenced suit.
Court’s Judgement and Rationale
Deciding the sole issue, the Supreme Court held that the original Writ of Summons tagged “General Writ of Summons,” was issued by the law firm of Chief Toye Coker & Co. The Writ contained an untrue statement to the effect that Chief Toye Coker & Co. of 6, Ojugbele Street, Off Metun Road, Otta, Ogun State is a legal practitioner for the Plaintiffs. Chief Toye Coker & Co. is not a single Legal Practitioner as described in the Writ; rather, it indicates a firm of legal practitioners.
Citing Section 2(1) of the Legal Practitioner’s Act, the apex court held that “a person” as used in Section 2(1) of the Act means a natural (not a juristic) person who must have satisfied the condition precedent to call and must have been called to the Bar in Nigeria; or admitted under special circumstances to engage in law practice in Nigeria. The person referred to in the sub-section must have been duly called to the bar and must have been enrolled at the Supreme Court of Nigeria. Toye Coker & Co is not a person contemplated in Section 2(1) of the Act.”
Regarding the submission of counsel for the Respondents that the decision in OKAFOR v NWEKE (supra) and similar cases were decisions on objections relating to breaches of rules of court, the Supreme Court held that violation of an Act of the National Assembly is a much more serious matter than a violation of the rules of court. A party cannot waive the breach of a law made by the National Assembly and it is never late in any proceedings to raise the issue of jurisdiction.
On the submission that the Statement of Claim, when filed, supersedes the Writ of Summons is not absolute in its applications. It applies to the contents of the Writ of Summons and if a new claim is contained in the Statement of Claim, the new claim cannot be superseded for it is not part of the claim in the Writ, and the Statement of Claim cannot supersede this part. More so, if the Writ of Summons is filed, as in this case, in violation of the Legal Practitioner’s Act and Ipso Facto null and void, the time hallowed principle that the Statement of Claim superseding the Writ of Summons will not apply. What purports to be a Writ of Summons in this case became a nullity upon being filed; it could not ignite the jurisdiction of the court and a purported process filed pursuant to it does not fare better than the Writ.
Their Lordships held further that if the trial court lacked jurisdiction to entertain the matter, it follows that the court below had no jurisdiction to hear the appeal arising therefrom. Jurisdiction of a court is donated to it by either the constitution or by a statute – MISS OLUCHI J. ANYANWAKO v CHIEF MRS. CHRISTY O.N. OKOYE & 4 ORS. (2010) 1 SC (Pt. II) 30. The jurisdiction of the court remains dormant until the claim before the court ignites it. If the claim has not been brought before the court by due process, the claim cannot invoke the court’s jurisdiction, and the court labours in vain in entertaining the suit. This is the case here. The trial court lacked jurisdiction to entertain the suit nor has the court below the competence to determine the appeal arising from proceeding which are void.
Consequent upon the foregoing, the Supreme Court ordered that the proceedings at the trial court, as those in the Court of Appeal be, and were declared null and void.
(Dissenting opinion of Honourable Ejembi Eko, JSC)
Dissenting on the sole issue, Honourable Ejembi Eko, JSC stated that the issue is a Preliminary Objection to the competence of the suit of the Respondents at the trial court and same was not raised either at the trial court or the lower court. Therefore, the counsel who settled the Notice of Appeal was clearly misleading the court in the Notice of Appeal when he asserted that the Defendants/Appellants, was dissatisfied with the decision in the judgment of the Court of Appeal and hereby appeal as of right to the Supreme Court. This is a suggestion that the Preliminary Objection was an issue before the lower court, which court decided the issue in its judgement.
His Lordship opined that it is too late in the day for the Appellants herein to be heard complaining about any defect in the Writ of Summons to which they unconditionally entered appearance, filed pleadings, and called evidence; and in respect of which the trial court gave them judgment. His Lordship stated further that the Supreme Court does not entertain appeals from the High Court and that the provisions of Order 2 Rules 9(1) and 29(1) of the Supreme Court Rules do not avail the Appellants as the provision relates to setting aside a process for non-compliance with the Supreme Court Rules. This cannot be invoked to set aside or strike out any process filed at the trial court as the Supreme Court cannot usurp the functions of the High Court. Also, the issue canvassed is a fresh point of law on procedural jurisdiction of the trial court which can only be raised on appeal to the Supreme Court with leave of court. Further, the Writ of Summons was issued by the Principal Registrar of the High Court in accordance with the Rules of court and in line with the claims of the Plaintiff as endorsed in the Writ. The Rules of court does not authorise the Plaintiffs or their counsel to issue Writ of Summons; hence, there is presumption of regularity in line with the provisions of the Evidence Act. More so, by the provisions of the extant rules of the High Court of Ogun State, the court is empowered to “amend any matter in any indorsement or pleading” at any stage and this may not necessarily involve the striking out of the entire pleadings. His Lordship related the instant case to the decided case of HERITAGE BANK LTD v. BENTWORTH FINANCE (NIG.) LTD. (2018} 9 NWLR (Pt. 1625) 420 (SC) and struck out the appeal with costs.
Appeal allowed on a ratio of 4:1.
Mr. S.A. Sanni for the Appellant.
Mr. J.T Shotirane with J.T Komolafe for the Respondent.
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