Continued from last week
To determine whether a Court is clothed with jurisdiction to adjudicate over a matter, the Courts have always applied the golden rule as encapsulated in the time-honoured dictum of Madukolu v Nkemdilim (1962) 2 SCNLR 341 to the effect that a court is competent when:
(a) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Where all the three conditions listed above for the exercise of jurisdiction co-exist, a Court is said to have competence and jurisdiction. However any defect in competence would be fatal as the proceedings are a nullity however well conducted and decided: See Chevron (Nig.) Ltd. v. Warri North L.G.C. (2003) 5 NWLR (Pt.812) 28 @ 44 B-E; Adigun v. Osaka (2003) 5 NWLR (Pt.812) 95 @ 131 B-E, 134 B-C
In the instant case, Learned Appellant’s counsel submitted that the Originating Processes are incompetent on the ground that the said processes were signed by an entity that was neither the Respondent nor a duly registered Legal Practitioner contrary to the requirements of Order 6 Rule 2(2) of the High Court of Lagos State (Civil Procedure) Rules 1994.
Obviously a firm of Legal Practitioners is not a Legal Practitioner within the definition of the Legal Practitioners Act.
The law is settled that only a registered Legal Practitioner can sign processes before a court of law:Okafor v Nweke (2007) 10 NWLR (Pt.1042) 521 and N.N.B. Plc. v Denclag Ltd (2005) 4 NWLR (Pt.916) 549 @ 502 – 503 F – B.
The omission of Learned Counsel to insert his name in the Originating Processes does not amount to a mere procedural irregularity. It is a matter of substantive law provided for in the Legal Practitioners’ Act. The objection has in fact raised an issue of the jurisdiction of this Court to hear and determine the matter and an issue of jurisdiction is fundamental to adjudication and can be raised at any stage of the proceedings, even in the Supreme Court for the first time.
The Supreme Court further confirmed its position on this issue in its recent decision in Brathwaite v Skye Bank (2013) 5 NWLR (Pt.1346) 1 @ 17 paras F-G;
Again in FBN v Maiwada (2013) 5 NWLR (Pt.1348) 444 the Supreme Court per Fabiyi (JSC) maintained its position in Okafor v Nweke
Respondent’s counsel had submitted that the Supreme Court rendered the processes in Okafor v Nweke (Supra) incompetent because the Processes under consideration in that case namely the Notice of Motion, the Notice of Cross Appeal and the Respondent’s Brief of Argument were filed in the Supreme Court, while in this case, the Appellant is challenging the competence of the Writ of Summons and Statement of Claim filed by the Respondent at the Lower Court; and that the Appellant’s Preliminary Objection therefore ought to have been raised at the Lower Court and not before this Court. There is no merit in this argument.
The Supreme Court did not render the processes in Okafor v Nweke (Supra) incompetent because the said processes were filed in the Supreme Court. The Supreme Court in the said case, considering processes filed in court, observed “… it follows that the said JHC Okolo SAN & Co cannot legally sign and/or file any process in the courts and held that “Such documents are incompetent and are liable to be struck out”, referring to all documents filed in court.
The Apex Court did not make any distinction on the basis of the court in which the document was filed and the Legal Practitioners Act did not make any such distinction either. It follows that any process before any court that is not signed by a Legal Practitioner is incompetent and liable to be struck out.
Chuks Ikokwu & Co cannot legally sign and/or file any process in the courts and as such the Writ of Summons and Statement of Claim signed by the firm known and called Chuks Ikokwu & Co are incompetent as the said firm of Chuks Ikokwu & Co is not a registered Legal Practitioner.
Clause C as enunciated in Madukolu v Nkemdilim (Supra) to the effect that a case must come before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction is lacking in the instant case. The Originating Process filed in the Lower Court not having complied with the condition precedent to the commencement of this action, the Lower Court as well as this Court has no jurisdiction to entertain the suit and as a corollary; the judgment of the Lower Court is rendered a nullity. See Akingbehin v Thompson (2008) 6 NWLR (Pt.1083) 790 279 where the Court stated thus:
“Where a condition precedent for the exercise of the court’s jurisdiction has not been fulfilled, such a court lacks the requisite jurisdiction or competence to adjudicate in the matter or suit, and where a court lacks jurisdiction to adjudicate in a proceedings, such proceedings when conducted is or amounts to a nullity however well or beautifully conducted it might have been”.
This defect in competence is fatal. The Lower Court lacked the necessary jurisdiction to entertain this suit. I hold that the proceedings of that Court are a nullity. Many counsel have learnt that whenever this unfortunate scenario presents itself, no kind of ingenious argument can salvage the situation as the Supreme Court has in a long line of decided cases made its stand on the issue clear beyond peradventure. It is a waste of time to challenge the status quo; as unfortunate as the situation is for the litigants. The preliminary objection succeeds and is upheld. The appeal is meritorious and is hereby allowed. The Judgment of Onigbanjo J. of the High Court of Lagos State in Suit No IKD/17/2002 delivered on the 12th day of May 2010 is set aside as a nullity. I make no order as to costs.
Appearances
Adewale Adesokan Esq.
For the Appelants
Oge Enyindah Esq.
For the Respondents
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