➥ CASE SUMMARY OF:
Alhaji Abdulkareem Laaro Buhari (Balogun Gambari of Ilorin) & Anor. v. Alhaji Muhammad Aliyu Adebayo & Anor. (SC. 247/2014, 2022)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Defective writ;
Writ signed by a non-legal practitioner;
➥ CASE FACT/HISTORY
The facts giving rise to this appeal are that the appellants commenced the action giving rise to this appeal in the High Court of Kwara State by a writ of summons dated 28th September, 2005. The case proceeded to trial, at the conclusion of trial, before judgment was delivered, the 2nd and 3rd respondents brought an application challenging the competence of the suit on the ground that the suit was commenced by a defective writ of summons because the writ was signed by a person unknown to law. The learned trial judge in his judgment struck out the suit for want of jurisdiction and held that the defective writ of summons robbed the court of its jurisdiction to hear and determine the matter. The appellants therefore appealed to the Court of Appeal Ilorin Division, the lower court, which court in a unanimous decision dismissed the appellants’ appeal. Dissatisfied therefore, the appellants further appealed to this court via notice of appeal dated 7th March, 2014, containing grounds of appeal.
➥ ISSUE(S)
I. Whether the question writ of summon was signed by a legal practitioner known to law having record to the affidavit and documentary evidence on record?
II. Whether a statement of claim properly endorsed and filed with a writ of summons is capable of curing any defects in the writ by the doctrine of supersession of a statement of claim over a writ?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE WRIT IS DEFECTIVE AS IT WAS SIGNED BY A NON-LEGAL PRACTITIONER
‘The provisions of Order 2 rule 1 of the Kwara State (Civil Procedure) Rules, 2005 and sections 2 and 24 of the Legal Practitioners Act as cited are very clear and unambiguous, looking at the originating summons, it is very clear that it was signed by“ Femi Falana, A.O. Muhammed & Co.” and that the said “Femi Falana A.O Mohammed & Co” is neither a party to the action nora person known to law. The pertinent question here is, is “Femi Falana A. O. Mohammed & Co” a legal practitioner within the contemplation of the law? as to come within the provisions of Order 2 rule 2 of the Kwara State Civil Procedure Rules 2005 and sections 2 and 24 of the Legal Practitioners Act? To answer this question, I must have instant recourse to the provisions of section 24 of the Legal Practitioners Act, which provides as follows: “Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor either generally or for the purposes of any particular office or proceedings.” A legal practitioner contemplated by Order 26 rule 4(3) supra is the one defined in section 24 of the Legal Practitioners Act. “Femi Falana, A. O. Mohammed & Co.” is not a legal practitioner within the context of Order 26 rule 4(3). Learned counsel for the appellant made strenuous efforts to contend that a comma having been used to separate the name of Femi Falana from A.O. Muhammed solved the whole problem. According to learned counsel, Femi Falana as a person and a distinct legal practitioner cannot be part of the firm of A.O. Muhammed & Co. This argument by learned counsel is designed to postpone the evil day, the lower court at page 260 of the records of appeal held as follows: “the writ of summons that originated the appellant’s suit was not signed by a legal practitioner known to law and it was properly struck out by the learned trial Judge, the immediate consequence of which is that the foundation of the action does not exist and so the suit was properly struck out based on the principle that no one can place something upon nothing, Macfoy v. UAC (2006) 36 WRN 185, the totality of which is that the appellant’s suit lacks competence having not been initiated by due process of law. Madukolu v. Nkemdilim (1962) 1 All NLR 587, (1962) 2 SCNLR 341.’
‘It is clear from the facts of this case that there is no evidence on record that Femi Falana, A.D Mohammed & Co, is a legal practitioner whose name is on the roll, and therefore qualified to practice as a legal practitioner, the comma that appears after the name of Femi Falana does not in any way prove the fact that the name is the name of a legal practitioner. Section 2(1) of the Legal Practitioners Act clearly provides as follows; “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.” In the instant case, Femi Falana, A.O. Mohammed & Co is not a legal person. It can only function as such if it describes itself as: Femi Falana, SAN or A. O. Mohammed, SAN, counsel for the appellants cannot engage in legal gymnastics to revive a writ that is dead on arrival.’]
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.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[A STATEMENT OF CLAIM CANNOT CURE A DEFECTIVE WRIT
‘I agree with the submissions of the learned senior counsel for the 2nd and 3rd respondents on whether statement of claim supersedes the writ of summons that the reliefs endorsed on the statement of claim supersedes the once in the writ of summon, and nothing more. The two processes are mutually exclusive, a writ of summons can come to life without statement of claim but the later cannot be alive without the former. It is the principle of law that you cannot put something on nothing and expect it to stand, the writ of summon in this case which was the foundation of the appeal is defective, the appellant cannot rely on statement of claim to cure the defective writ of summons. The lower court has seen and answered it all.’]
.
.
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✓ DECISION:
‘In the circumstance therefore, I find no merit in this appeal, I hold that the writ of summons, held to be defective by concurrent findings of the trial and lower court is also found to be fundamentally defective by this court, it is therefore struck out. appellants appeal lacks merit, it is therefore accordingly dismissed. The judgment of the lower court delivered on the 27th day of February, 2024, is affirmed. Parties in this appeal shall bear their respective costs.’
➥ FURTHER DICTA:
⦿ ALL PROCESSES FILED IN COURT ARE TO BE SIGNED AS FOLLOWS
At this juncture, I must make it clear that the learned counsel for the appellant has not understood the principles in SLB Consortium v. NNPC (supra). The law is very clear that as there is no name written to legitimize the process, it then goes to nothing and it must be discountenanced. In SLB Consortium v. NNPC (supra) this court made it clear that: “All processes filed in court are to be signed as follows: (a) First the signature of counsel which may be any contraption; (b) Secondly, the name of the counsel clearly written; (c) Thirdly, who counsel represents; (d) Fourthly, name and address of legal firm”. I must reiterate the position taken by this court in SLB Consortium v. NNPC (supra) that: “Once it cannot be said who signed the process, it is incurably bad, and rules of court that seem to provide a remedy are of no use as rule cannot override the Legal Practitioners Act. There must be a strict compliance with the law. Accordingly, the writ of summons in this matter is defective and therefore incompetent. – T. Abubakar JSC.
⦿ BRIEF OF ARGUMENT CANNOT BE USED TO ADDUCE ORAL EVIDENCE
I have no difficulty agreeing with Yusuf Ali, SAN that a brief of argument is not a forum to adduce oral evidence. See UBN &Anor v. Ayodare & Sons Nig. Ltd. (2007) All FWLR (Pt. 383) 1 at42, (2007) 13 NWLR (Pt. 1052) 567; F.G Chime v. Ezea (2009) All FWLR (Pt. 470) 659 at 748; (2009) 2 NWLR (Pt. 1125) 263. – M. Peter-Odili JSC.
⦿ THE RELATIONSHIP BETWEEN A STATEMENT OF CLAIM AND A WRIT OF SUMMONS
In order to underscore the position taken by the trial court. I wish to liken the relationship between a writ of summons and a statement of claim to that between a foundation and a structure erected thereon. The writ of summons is like a foundation while the statement of claim is like the structure that was erected on the foundation. This is why a suit could exist on the basis of a writ of summons alone even before the statement of claim is filed and not the other way round. When it is said that a statement of claim supercedes the ones on the writ. Nothing more. The two processes are mutually exclusive, a writ of summons can come to life without a statement of claim but the latter cannot be alive without the former. At page 258 of the record, the Court of Appeal held on the superiority of the statement of claim and the writ of summons as follows:- The superiority of a statement of claim over the writ is in respect of the claim averred therein, as it is settled law that where a relief claimed in the statement of claim differs from the writ. The statement of claim supercedes the writ. See Elf Nig Ltdv v. Sillo (1994) 6 NWLR (Pt. 350) 258; Daniel Holding Ltd. v. UBA Plc (2005) TSC (Pt.1) 18; (2005) 13 NWLR (Pt. 943) 533. NTA v. Aniagbo (1972)5 SC 156; (1972) 1 All NLR 74.Another aspect: in which the statement of claim supercedes the writ is where there is issue of whether the claim itself has disclosed reasonable cause of action in which case it is the claim that is to be examined. See Cookey v. Fambo (2005) 15 NWLR (Pt. 947) 182; (2005) 13 NWLR (Pt.943) 533. – M. Peter-Odili JSC.
⦿ A LAWYER IS TO DO FOR HIS CLIENT
In the case of Wauga v. British Rails Board (1929) 2 All ER1169, Lord Simond had a cause to cite with approval Dr. Johnson’s observations in Boswell’s Life of John (Birkbeck Hill Edition) 26: As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who by study and experience, have acquired the art and power of arranging evidence, and of applying to the points a tissue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself, if he could. See also Tijani v. First Bank Plc (2014) 1 NWLR (Pt. 1387) 57; Passco Intl Ltd. v. Unity Bank Plc (2021) 7 NWLR (Pt. 1775) 224, per Saulawa, JSC @ 260-262 paragraphs C-A; Pettitt v. Greyhound Racing Association (No.1) (1968) All E.R. 545, per Lord Denning, MR. @ 549.
➥ LEAD JUDGEMENT DELIVERED BY:
Tijjani Abubakar, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Kamaldeen B. Quadri, Esq.
⦿ FOR THE RESPONDENT(S)
Lateef Omoyemi Akangbe, Esq. for 1st Respondent;
Yusuf Ali, SAN, for 2nd & 3rd Respondent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ VALIDITY OF THE ORIGINATING PROCESS BEFORE A COURT IS FUNDAMENTAL
This court in Kida v. Ogunmola (2006) LPELR-1690 SC;(2006) 13 NWLR (Pt. 997) 377 also held as follows: “… 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. Therefore, 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 proceedings as claimed by the learned trial Judge.”
➥ REFERENCED (OTHERS)
