Effect Of Defective Signing Of Originating Processes On Court’s Jurisdiction

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 6th day of January, 2023

Before His Lordship

John Inyang Okoro

Amina Adamu Augie

Adamu Jauro

Tijjani Abubakar

Between

NICHOLVF WORLDWIDE HOLDINGS LIMITED APPELLANT

And

DANA SERVICES LIMITED RESPONDENT

(Lead Judgement delivered by Hon. John Inyang Okoro, JSC)

Facts

The Appellant and Respondent entered into a Cooperation Agreement on 15th November 2005, to provide visa application processing and documentation services to applicants applying for visas from the High Commission of the Government of the United Kingdom (“British High Commission”) in Nigeria. The Appellant had been awarded the said contract by the British High Commission (“Head Contract”) and the Appellant in turn entered into the Cooperation Agreement with the Respondent, in order to provide the services. It was mutually understood by the Appellant and the Respondent, that the continued existence of the Cooperation Agreement would be dependent on the existence of the Head Contract between the Appellant and the British High Commission. The parties also agreed that any dispute between them, would be submitted to arbitration.

Subsequently, the British High Commission terminated the Head Contract. Further to this, the Appellant wrote to the Respondent to inform it of the termination of the Cooperation Agreement between them. A dispute arose between them, and the Respondent filed a suit against the Appellant and its affiliate company at the Federal High Court, Lagos (“the FHC”). The Respondent obtained interim orders against the Appellant and its affiliate company, in the said suit. The FHC however, subsequently declined jurisdiction to entertain the suit, set aside the orders and dismissed the suit.

After the dismissal of the suit, the Respondent served a notice of arbitration on the Appellant for the purpose of referring the dispute to arbitration, in line with the arbitration clause in the Cooperation Agreement. The Appellant however, rejected the said notice and proceeded to file an originating summons at the High Court of Lagos State in Suit No. M/480/2008 – VF Worldwide Holdings Limited v Dana Services Limited, seeking judicial interpretation of the position of the parties. The trial court answered the questions submitted for determination by the Appellant in favour of the Respondent, affirmed the Respondent’s right to revert to arbitration and dismissed the suit. Dissatisfied, the Appellant appealed to the Court of Appeal. The Respondent filed a notice of preliminary objection challenging the competence of the appeal, on the basis that the originating summons and the accompanying written address by which the Appellant commenced the suit at the trial court were signed by an unknown person who is not a legal practitioner “for and on behalf of Professor Yemi Osinbajo, SAN”. The Court of Appeal upheld the preliminary objection, struck out the originating summons and the accompanying processes filed at the trial court and also set aside the judgement of the trial court.

Further aggrieved, the Appellant lodged an appeal at the Supreme Court.

Issues for Determination

After considering the issues submitted by respective counsel for the Appellant and the Respondent, the Apex Court reformulated the issues for determination as follows:

1. Whether the decision of the lower court to strike out the Appellant’s Appeal, on the basis that the originating summons filed at the trial court was incompetent for failure to conform to Sections 2(1) and 24 of the Legal Practitioners Act amounts to denial of access to justice?

2. Whether the lower court was right to strike out the Appellant’s Appeal for lack of jurisdiction on the basis of the Respondent’s preliminary objection without going into the substance of the appeal and whether this amounts to breach of the Appellant’s right to fair hearing?

Arguments

Counsel for the Appellant posited on the first issue, that the Respondent’s preliminary objection was an infraction of Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the “Constitution”), which entitled the Appellant access to justice. He submitted that Sections 2(1) and 24 of the Legal Practitioners Act (“LPA”) which was the basis of the striking out of the originating summons filed at the trial court, cannot be interpreted or applied to oust the operation of Section 6(6)(b) of the Constitution. He argued further that the originating summons and the written address were signed by one Miss Osasu Eghobamien who is a legal practitioner in the law firm of Simmons Cooper Partners, for and on behalf of Prof Yemi Osinbajo, and since Sections 2(1) and 24 of the LPA are silent on situations where a legal practitioner signs a legal process for and on behalf of another legal practitioner, it cannot be said to be applicable in the circumstance of the case as to render the originating processes filed at the trial court incompetent.

Counsel for the Respondent on the other hand, submitted that there was no breach of Section 6(6)(b) of the Constitution by the lower court, since the jurisdiction of the trial court was not validly activated by the Appellant. He cited the case of DONGTOE v C.S.C PLATEAU STATE (2001) 9 NWLR (PT. 717) 132 AT 150. He contended that Sections 2(1) and 24 of the LPA only provide the procedure to be followed when exercising the right of access to court, one of which is that only a legal practitioner should prepare, sign and file court processes. He argued that where an enactment prescribes steps to be fulfilled before the jurisdiction of the court can be properly invoked; it does not amount to denial of access to court as argued by the Appellant. He submitted that the Appellant’s suit before the trial court was not initiated by due process of law, as the originating summons was not signed by any verifiable legal practitioner, hence, it was fundamentally defective and this operated to rob the court of jurisdiction to hear the suit. Counsel for the Respondent argued further that the Appellant’s attempt in its Brief of Argument to show that the originating processes were signed by a legal practitioner is an afterthought, and is not verifiable by evidence.

Regarding the second issue, counsel for the Appellant argued that the lower court, not being a trial court, ought to have exhaustively considered and determined the other issues raised in the appeal, despite finding that it lacked jurisdiction to entertain the matter. He cited KATTO v CBN (1991) 9 NWLR (PT. 214) 126 in support of his argument.

Court’s Judgement and Rationale

On the first issue, the Apex Court held that for a litigant to properly approach the courts for redress over an injury or wrong, such litigant must follow due process of law in order to confer jurisdiction on the court; and before any court can entertain a matter before it, such court must have jurisdiction to do so. The Court held further that for every right, there is a corresponding responsibility, and while Section 6(6)(b) of the Constitution creates the right of access to court, there are procedures and requirements geared towards ensuring that the jurisdiction of court is properly invoked for the right to be exercised, and failure to comply with them will deprive the court of jurisdiction. The Court held that Sections 2(1) and 24 of the LPA specify who a legal practitioner is and by extension, who is entitled to sign an originating process or other court process before any court in Nigeria, in order to properly activate the jurisdiction of the court. The Apex Court held that the Appellant’s originating summons and written address were signed “for and on behalf of Professor Yemi Osinbajo, SAN”, by an unknown person who could not be verified as a legal practitioner entitled to practice and sign court processes as a Barrister and Solicitor in Nigeria, and this rendered the said processes incurably bad and incompetent. The Appellant’s suit at the trial court could not therefore, be said to have been initiated by due process of law, and the decision of the Court of Appeal striking out the incompetent originating processes did not in any way amount to a denial of the Appellant’s constitutional right of access to court, because the Appellant had itself failed to properly activate the jurisdiction of the trial court. The Court relied on its decisions in MADUKOLU V NKEMDILIM (1961) SCNLR 61 and OKAFOR v NWEKE (2007) 10 NWLR (PT. 1043) 521.

Regarding the second issue, the Court noted that it has on many occasions admonished lower courts to determine substantive issues in an appeal, despite upholding a challenge to jurisdiction to entertain the appeal, so as to give the Apex Court something to determine if it finds otherwise on the issue of jurisdiction, and essentially to avoid remitting the appeal back to the lower court for determination on the merit.

The foregoing notwithstanding, the Apex Court found that the trial court had already determined the questions submitted for determination in the originating summons, against the Appellant. The Court held that the alleged failure by the lower court to consider the issues did not occasion any miscarriage of justice on the Appellant, because the originating summons at the trial court was incompetent, and even at that, the court considered the questions, found them to be unproved and accordingly, dismissed the suit. There was therefore, no need for the Court of Appeal to determine any other issue in the appeal.

Appeal Dismissed.

Representation

Ikem Isiekwena with Adegoke Adedoyin and Chinelo Obekwe for the Appellant.

A.G. Anafi with A.N. Salis for the Respondent.