UNITY BANK v. KAY PLASTICS (NIG) LTD &ANOR
CITATION: (2018) LPELR-44977(CA)
In the Court of AppealIn the Ilorin Judicial Division
Holden at Ilorin
ON WEDNESDAY, 11TH JULY, 2018Suit No: CA/IL/94/2016
Before Their Lordships:
CHIDI NWAOMA UWA Justice, Court of AppealHAMMA AKAWU BARKA Justice, Court of AppealBOLOUKUROMO MOSES UGO Justice, Court of Appeal
BetweenUNITY BANK PLCAppellant/Cross-Respondent - Appellant(s)
And1. KAY PLASTICS (NIG.) LTD2. ALHAJI KOLAWOLE YUSUFRespondent/Cross-Appellant
- Respondent(s)
RATIO DECIDENDI
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1. ACTION - COUNTER-CLAIM: Whether a counter-claim will fail where an originating process is invalid"...And here my view is that there is no way the said counterclaim of defendants/respondents can survive the invalidity of the writ of summons.While it is true that a counterclaim is usually described as a separate and independent action, we must not fail to put that legal jingle in itsproper context, just as Nnaemeka-Agu, JSC, in Ojibah v. Ojibah (1991) 5 NWLR (PT. 191) 296 also exhorted counsel and the Courts to be waryof "deciding cases and issues on the established legal jingles and catch-phrases without fully asking one's self how well they fit into theparticular facts of the case." A counterclaim is an independent and separate action from the main claim only to the extent that it has a lifeindependent of the plaintiff's claim which the Rules of Court and the Forms made pursuant thereto require to be endorsed on writ of summonsbefore issue. (See a Copy of Form 1 - the format of Writ of summons - contained at pages 202 - 204 of the 2005 Rules of the Kwara State HighCourt). The writ of summons which is a document in the name of the State or Officer of Court, usually the Registrar, summoning/commandingthe defendant to appear to an action in the name of the plaintiff and which usually opens with the command "You are hereby commanded thatwithin .... number of days you cause an appearance to be entered for you in an action at the suit of ...... and in default of your so doing theclaimant may proceed therein and judgment may be given in your absence", is actually the only originating process for all actions required bythe Rules of Court to be commenced by writ of summons. What constitutes the claim of the claimant in the writ, which the defendant is atliberty to respond with a 'counterclaim', is simply the endorsement close to the end of the writ. That endorsement is just one of several that theRules and the Form stipulate be made on the summons before issue. That part of Form 1 at p. 203 of the Rules of the lower Court, incidentallyoccupying just a very little portion of it for that matter, reads thus:Endorsement to be made on the writ before issue thereof.The claimant's claim is for, .........It is this endorsement of the claim on this portion of the writ of summons which the claimant also further particularizes and elaborates upon inhis statement of claim that the defendant counterclaims to which counterclaim is properly described as independent and distinct action fromthe claim endorsed by the claimant, such that even if that claim is held statute barred, not prosecuted, withdrawn, struck out for failure todisclose cause of action, declared incompetent for any other reason or even fails on the merits for lack of proof, the counterclaim is notaffected. It is in that sense and that sense alone that a counterclaim is an independent and separate action from the main action or claim andnot that it is an originating process of its own as suggested by counsel or one hanging in the air, so to speak, without an originating process tosupport it. A counterclaim, I repeat, draws life from the originating process (the writ of summons in this case) filed by the claimant and backedby the power of the State or officer of Court commanding the defendant to appear and contest the action or face the risk of having judgmententered against him in his absence. That being the case, any defect that affects the writ of summons and renders it invalid as in this case isbound to adversely affect every other thing founded on it including claim and counterclaim. It has to be noted too that there are only four waysof originating an action, otherwise called originating processes, recognized by both the 1989 Rules of the High Court of Kwara State applicableat the time of the commencement of this action and the present 2005 Rules of that Court. These are:1. Writ of summons,2. Originating summons,3. Originating motion, and4. Petition.Order 1 Rule 1 of the 1989 Rules as well as Order 2 Rule 1 of the present 2005 Civil Procedure Rules of the Kwara State High Court both ofwhich are similarly subtitled 'Form and Commencement of Action' are in agreement on this with their also similarly-worded provision thatreads:Subject to the provisions of any enactment, civil proceedings may be begun by writ, originating summons, originating motion or petition, ashereinafter provided.Every other process, including statement of claim, witness statements on oath and so forth required by the innovative 'frontloading' 2005 Rulesof Court to accompany the originating processes aforementioned are simply what they are: mere accompaniments and not originatingprocesses. That much is further made clear by the following provisions of the 2005 Rules of the lower Court which are also duplicated in theRules of all other High Courts in this country. First is Order 2 Rule 2 (2) which says:R.2 (1) All civil proceedings commenced by writ shall be accompanied by :(a) statement of claim.(b) list of witnesses to be called at the trial,(c) written statements on oath of the witnesses and,(d) copies of every document to be relied on at the trial.Order 27 R. 1 (1) then makes the distinction between originating proceses like Writs of Summons and their accompaniments even clearer byproviding that:O. 27 R.1(1) The claimant shall file his originating process and accompanying documents simultaneously for service on the defendant or ifthere are two or more defendants, on each defendant.From this and the earlier analysis of the true nature of a counterclaim vis-a-vis the writ of summons, the incompetence of the writ of summonsin his case undoubtedly affected the counterclaim filed by defendants/respondents pursuant to it. To argue the contrary is to assert the legaland logical impossibility of expecting something to stand on nothing. Even going beyond all that is that the counterclaim in this case was, asearlier noted, brought into being through a motion on notice that was prepared and signed by an unknown and undisclosed person 'PP' (for) thesame entity called Kayode Olatoke and Co. That same undisclosed person who may not even be a lawyer at all also signed respondents'attached counterclaim for 'PP' (for) Kayode Olatoke and Co., which the lower Court deemed as properly filed. (See p. 98 - 111 of the recordsagain). That is the process Mr. Akanbi for respondents is defending as valid and having a life of its own and so capable of sustaining thejudgment the lower Court entered in favour of respondents. My Lords, he does not have me with him. I am certain he is not correct.The purported unreported decision of the Supreme Court of 23rd February, 2018 in SC/175/2005 in Heritage Bank Ltd v. Bentworth Finance(Nig.) Ltd cited by Akanbi does not also change anything. In the first place counsel only produced to us an incomplete copy of what purports tobe the judgment of the Supreme Court. The said judgment, apparently downloaded from a website that goes by the name Nigeria Lawyer, onlycontains what purports to be the lead judgment of Ejembi Eko, JSC. There are no contributions from his Brother Justices Rhodes-Vivour, Peter-Odili, Ogunbiyi and Sanusi (JJ.S.C.) whose names also appear on its first page as having heard the appeal with Eko, J.S.C. Even more curiously,the said judgment is purportedly certified by one Bilikisu B. Musa who described herself as Registrar of the Supreme Court of Nigeria, even asthe said document as said is downloaded from the Internet and not obtained from the Supreme Court where it was purportedly certified. That isnot all, the certification is also done only at the last page alone, as opposed to the well noted procedure of the Supreme Court certifying everypage of its judgments. Mr. Adigun cautioned us to be wary of relying on an unreported judgment including the one in issue. I think he has apoint. One even wonders why a judgment said to have been delivered by the Supreme Court since 23rd of February this year (2018) has notbeen officially reported by any of the several Official Law Reporting outlets, not even by Electronic Law Reporters like Law Pavilion andLegalpediawho are noted for prompt reporting of the decisions of not only Supreme Court but a good number of the decisions of this Court too.But assuming that the said incomplete copy of Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd brandished by respondents is actuallygenuine (and it may well be), it must again be pointed out that the document in that case that was signed by a law firm instead of LegalPractitioner was not an originating process like we have here but just a statement of claim. In fact even in that case it was recognized at p.17by Eko, JSC, that "The law is settled as this Court pointed out in Braithwaite v. SkyeBank Plc (supra) at p.17; Nigerian Army v. Samuel (supra) at486; Thomas v. Maude (2007) ALL FWLR (PT. 361) 1749; F.B.N. v. Uwada (respondent again curiously not omitted in the said document) (2002)2 NWLR (PT 805) 485; an irregularity affecting an originating process is a fundamental irregularity that goes to the roots." That settles it, evenas this Court (Barka and Owoade, J.C.A) had also held in Aberuagba & Anor v. Oyekan & Ors (2018) LPELR-43669 that a defect of this typeaffecting the originating process affects a counterclaim too. On that note, I hereby also uphold issue 4 of the appeal and declare the judgmentof the lower Court on respondent's counterclaim also a nullity. The appeal of Unity Bank is therefore also allowed and, for avoidance of doubt,the said judgment of Folayan J. of 10/01/2013 is hereby set aside."Per UGO, J.C.A. (Pp. 27-36, Paras. E-B) - read in context
2. COURT - JURISDICTION: Effect of a court hearing a matter where it has no jurisdiction"...if a Court lacks jurisdiction its decision, no matter how well conducted, is a nullity: Madukolu v. Nkemdilim (1962) SCNLR 341 @ 348(Bairamian, J.S.C.)."Per UGO, J.C.A. (P. 22, Para. F) - read in context
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3. COURT - JURISDICTION: Effect of a court hearing a matter where it has no jurisdiction"If a Court lacks jurisdiction whatever happened before it and what it said in the trial is a nullity. A challenge of Court's jurisdiction can neitherbe stifled by procedural objections (Akegbejo v Ataga (1998)1 NWLR (PT. 534) 459 @ 466; Okoye v. NCFC Ltd. (1991) 6 NWLR (PT. 199) 501 @540-541) nor ignored or swept under the carpet under any other guise: Eze v. Attorney-General of Rivers State (2002) FWLR (PT 89) 1109 @1142 (Karibi-Whyte J.S.C.)."Per UGO, J.C.A. (P. 36, Paras. D-F) - read in context
4. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Proper person to sign a legal process/effect of legal documentssigned/franked by a law firm"The issue of lack of jurisdiction in the lower Court which is raised in both the main appeal and cross-appeal is founded on the manner the writof summons and the counterclaim, including the motion by which time was extended to deem it filed, were signed not by Legal Practitionersbut by the law firm of Uwakwe Abugu & Co. in respect of the writ of summons and original statement of claim, and by Kayode Olatoke & Co. inrespect of the said motion on notice dated and filed on 13/5/2005 and its counterclaim both of which span pages 98 - 111 of the records ofappeal.It is now well settled in our jurisprudence that only Legal Practitioners called to the Bar as stated in Sections 2(1) and 24 of the LegalPractitioners Act, and not law firms, can sign legal processes including originating process. This position is so well entrenched in ourjurisprudence that it is no longer open to disputation. The cases of Okafor v. Nweke (2007) 10 NWLR (PT. 1043) 521 (S.C.); Guaranty Trust BankPlc v. Innoson (Nig.) Ltd (2017) LPELR-42368 (SC); Bukola v. Oshundahunsi (2012) LPELR-8546 (CA); Nigerian Army v. Samuel (2013) 14 NWLR(PT. 1375) 466 @ 483; Ministry of Works & Transport, Adamawa State v. Yakubu (2013) 6 NWLR (PT. 1351) 481 @ 496 (SC); Consortium Ltd v.NNPC (2011) 9 NWLR (PT. 1252) 317 and FBN Ltd v. Maiwada (2013) 5 NWLR (PT. 1348) 444 cited by both parties establish that point beyonddoubt. I guess that also was the reason behind the claimant/appellant/cross-respondent's well informed and commendable decision not tocontest defendants'/respondents'/cross-appellants' attack on the validity of its writ of summons, nay its claim, despite the fact that the trialjudge ruled in its favour when cross-appellant raised that same point in their address before that Court. An incompetent processes, contrary tothe reasoning of the lower Court, cannot be corrected or amended. Any purported amendment of such process is also invalid and amounts towaste of time. Incidentally, I had cause (in company and concurrence of my learned brothers Lokulo-Sodipe and Akinbami, JJ.C.A) to addressthis same issue comprehensively in my Unreported lead Judgment of 07/03/2016 in CA/EK/82/2016: Abiodun Akinyede & Anor v. Dr. FrancisAkinyede.So, Folayan J. was, with due respect, incorrect when she held in her judgment while overruling cross-appellant that:"It would be recalled that there was an amendment granted by this Court to amend the original processes filed in 2003. The complaint here ison the originating process filed on 11th June 2003 (writ of summons) and 17th October, 2005 (statement of claim). There was an applicationgranted for amendment and this complaint and objection is not on the amended statement of claim. An amended process supersedes theoriginal which was amended and the process of this Court which brought hat amendment into being is still a valid decision of this Court whichhas not been challenged or reversed on appeal."In my aforementioned unreported judgment in Abiodun Akinyede & Anor v. Dr. Francis Akinyede, I referenced Order 5 Rule 1 of the old OndoState High Court Rules stating that writ of summons shall be prepared by Legal Practitioner. Order 5 Rules 1 and 2 of the now repealed KwaraState High Court (Civil Procedure) Rules 1989 applicable in the lower Court in 2003 when appellant/cross-respondent filed its summon alsostates that it is the plaintiff's solicitor or the Registrar of Court, if the plaintiff is illiterate or doesn't have a solicitor, that shall prepare writ ofsummons. It reads:Order 5.R.1(1)A writ of summons shall be issued by the Registrar, or other officer of the Court empowered to issue summons, on application.(2) The application shall ordinarily be made in writing by the plaintiff's solicitor by completing from 1 in the Appendix to these Rules, but theRegistrar or other officer as aforesaid, where the applicant for a writ of summons is illiterate, or has no solicitor, may dispense with a writtenapplication and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared,signed and issued.'Also worthy of note are the provisions of Order 5 Rule 1 of the 2005 Rules of the High Court of Kwara State stating that 'Originating processshall be prepared by a claimant or his Legal Practitioner .....'Uwakwe Abugu & Co. not being a solicitor or Legal Practitioner as defined by the Legal Practitioners Act cannot validly prepare let alone sign awrit of summons, consequently the writ it prepared and signed for appellant/cross-respondent is invalid and remained so regardless of theamendment the lower Court purports to have granted it. In the light of that, the cross-appeal has merit and is allowed."Per UGO, J.C.A. (Pp.23-27, Paras. D-D) - read in context
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BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the
Leading Judgment): This appeal and cross-appeal are
against the judgment of M. A. Folayan J. of the High Court
of Kwara State delivered on 10/1/2013. In that judgment
Her Lordship dismissed on its merits appellant’s/cross-
respondent’s claim against the respondents/cross-
appellants and allowed in part the respondents/cross-
appellants’ counterclaim against it.
The background facts of the case are that in 1990 and 1991
appel lant /cross -respondent agreed wi th 1st
respondent /cross -appe l lant to grant i t (1s t
respondent/cross-appellant) banking facilities of ₦6.1
Million for importation and installation of a P.V.C. Film
Production Plant Line in Ilorin. Later in 1993, 1st
respondent applied for a revolving working capital facility
of ₦5m, out of which appellant disbursed ₦3, 710, 594.00.
Second respondent later guaranteed the debt of 1st
respondent up to a limit of ₦23 million.
By its amended writ of summons issued on 10th April, 2003
under the now repealed Kwara State High Court (Civil
Procedure) Rules 1989 (otherwise called the Uniform
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Procedure Rules) operative at that time, appellant/cross-
respondent claimed jointly and severally against
respondents /cross -appel lants for the sum of
₦62,966,477.72 being its calculation of the cumulative
amount of respondents/cross-appellants’ indebtedness to it
from the various banking facilities it afforded 1st
respondent and guaranteed by 2nd respondent.
It is of great interest and a major issue in this appeal that
the Writ of Summons with which appellant commenced its
action was prepared and signed by a firm of solicitors
called Uwakwe Abugu & Co. rather than by a Legal
Practitioner called to the Bar. The same Uwakwe Abugu &
Co. also signed its original statement of claim as ‘counsel to
plaintiff.’
The respondents/cross-appellants filed a Memorandum of
Appearance and followed up with a defence as well as
counterclaim against appellant/cross-respondent for
various sums of money totaling ₦130,408, 100.00. It
brought in its defence and counterclaim through a motion
on notice filed and dated 13th January, 2005 after getting
the order of the lower Court extending time for them to file
both processes and to deem the two processes as properly
filed.
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Like appellant/cross-respondent, all respondents/cross-
appellants said processes including even its motion on
notice were also not signed by a solicitor. If anything their
situation even seems to be worse as their said processes,
motion included, were simply signed by an undisclosed
person or entity for (PP) a firm of solicitors called ‘Kayode
Olatoke & Co.’
Appellant responded with Reply again signed by Uwakwe
Abugu & Co. It later amended all its aforementioned
processes including the writ of summons. Whereas Uwakwe
Abugu Esq., who from the records appeared before the
lower Court in person as a lawyer on several occasions to
prosecute appellant/cross-respondent’s claim signed this
amended writ of summons, the same Uwakwe Abugu & Co.,
of the earlier processes signed all other amended processes
of appellant/cross-respondent again.
In her judgment of 10/01/2013, Folayan J., after overruling
respondents/cross-appellants’ objection to the validity of
appellant/cross-respondent’s action on the grounds that its
writ was not signed by a legal practitioner but by Uwakwe
Abugu and Co., and so invalid, dismissed
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appellant/respondent’s case in its entirety on the merits but
granted the respondents/cross-appellants’ counterclaim in
part.
Dissatisfied with that judgment, appellant, Unity Bank Plc,
filed its Notice and Grounds of appeal against it on 11/1/13.
One of its major complaints is the validity of the
c o u n t e r c l a i m o f t h e d e f e n d a n t s / c o u n t e r -
claimants/respondents/cross-appellants upon which
Folayan J., entered judgment. It is of the view that the said
counterclaim having not been signed by a Legal
Practitioner was incompetent so judgment could not be
properly entered on it.
The defendants/counterclaimants are also not satisfied with
the decision of Her Lordship overruling their objection to
the validity of appellant/cross-respondent’s action on the
same ground of the writ not being signed by a Legal
Practitioner and have cross-appealed against that part of
the judgment by a Notice and Grounds of Appeal dated and
filed on 08/04/2013.
Appellant in its amended brief of argument filed and
adopted by Mr. Teju Adigun distilled the following issues
for determination:
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1. Whether or not the lower Court’s f inding on
the appellant’s claim for N62, 966, 477, 72 was perverse
and liable to be set aside.
2. Whether or not the respondent’s counterclaim was
statute barred.
3. Whether or not respondents are entitled to the monetary
claims and cost granted by the lower Court.
4. Whether the lower Court had jurisdiction to entertain the
respondents’ counterclaim when same was originally
signed in the name of the Kayode Olatoke and Co., and not
by any named legal practitioner.
Respondents/cross-appellants responded to the appeal of
appellant Unity Bank Plc with a brief of argument filed and
adopted at the hearing by Oludare Akanbi Esq. There,
appellant, after pointing out what they described as
‘certain preliminarily issues’ including the fact that in their
view appellant did not appeal against a crucial finding of
the lower Court and no issue was formulated from some
grounds of appeal so those grounds (2, 7, 8 and 10) were
deemed abandoned, formulated similar four issues as
follows:
1. Whether the trial Court was not right when it dismissed
the appellant’s claim on the ground that same was not
proved.
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2. Whether or not the respondent’s counterclaim were
statute barred.
3. Whether or not respondents are entitled to the monetary
claim and cost granted by the lower Court.
4. Whether the trial Court had jurisdiction to entertain the
respondents’ counterclaim.
They, defendants/respondents, as cross-appellants then
filed and adopted a separate brief of argument in respect of
their cross-appeal and formulated the following sole issue:
Whether the learned trial judge was right when he held
that the writ of summons and statement of claim of the
claimant (now cross-respondent) signed in the name of
Uwakwe Abugu & Co. is competent, the contents of same
having been amended.
Claimant/appellant (Unity Bank Plc) it should be noted
elected not to respond to the cross-appeal attacking the
very foundation of its action on which its appeal is
anchored. That prompted Mr. Oludare Akanbi for cross-
appellant to submit during the hearing of the appeal on
30/05/2018 that claimant/appellant had conceded the cross-
appeal. Mr. Adigun for Unity Bank Plc. had no response to
even that submission.
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Arguments
Arguing issue 1 of its appeal, appellant (Unity bank Plc)
through its counsel Mr. Adigun first took on the finding of
Folayan J., that it wrongly computed the interest and
charges on a revolving loan of ₦5 Million instead of the
correct amount of ₦3.7m and that rendered the total
amount of ₦62,966,477.72 claimed by it incorrect and
unreliable. Counsel argued that appellant clearly pleaded,
and it was testified to by PW3, that though although ₦5m
was approved as warehouse facility, only ₦3, 710, 594.00
was disbursed to and utilized by 1st respondent so there
was no basis for His Lordship’s finding that it wrongly
computed the interest and charges it claimed on ₦5m
instead of N3.7m that was disbursed to 1st respondent.
Miscarriage of justice, counsel thus argued, was occasioned
by Her Lordship’s finding which deserves our intervention.
A customer’s indebtedness to its bank is usually proved by
statements of accounts, counsel argued, and this, appellant,
he said, did by tendering Exhibits 35 – 38 all of which are
1st respondent’s statements of accounts. PW3, counsel also
argued, testified to how these statements of accounts arose
from the facilities it granted 1st
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respondent yet counsel to 1st respondent did not
controvert them either in cross-examination or final
address. He thus submitted that appellant sufficiently
proved its claim of ₦62,966,477.72 and the lower wrong in
finding otherwise so we should resolve this issue in its
favour.
All other arguments of appellant (Unity Bank Plc) were
directed at the partial grant of the counterclaim of
respondents by the lower Court.
On issue 2, it (Unity Bank Plc) argued that respondents’
counterclaim was brought after six years of the date cause
of action accrued to respondents so it was barred by the
Limitation Law of Kwara State and the lower Court wrong
in rejecting its contention to that effect. Its counsel Mr.
Adigun went through each head of the counterclaim in
arriving at the said conclusion. The claim of ₦4,536,100 for
counterpart funding according to it accrued with the
commissioning of the PVC Plant in issue in 1992 and so
respondents’ 6-year period to sue on it lapsed in 1998. Two
Million Naira (₦2m) general damages claimed by
respondents for the takeover of the same Plant by its said
appointment of the Consultant/Manager also ran from
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1/4/1993 when he was appointed and 30/09/94 when the 18
months agreed by parties for him to run the Plant ended,
but respondents went to sleep until 2007, it argued. The
same thing it said applied to the claims for counterpart
funding which also took effect from the commissioning of
the Plant in 1/4/93 and ought to have ended on 30/9/94. It
asked us to resolve this issue in its favour and hold the
counterclaim statute barred.
On issue 3, the Bank argued that respondents did not lead
any credible evidence to support their monetary
counterclaims for which the trial judge granted them
₦4,536,100 for counterpart funding, general damages of
₦2m and costs of ₦100, 000. It argued that not only were
respondents’ pleadings inconsistent with respect to
counterpart funding, there was also material conflict in the
documents they relied on to support their claim. Apart from
Exhibits D6 and D14, it argued, respondents did not
produce any shred of evidence in support of their claim of
₦4,536,100. The lower Court’s decision to award
respondent’s general damages, it argued, was also
erroneous.
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A party claiming damages must lead evidence in proof of
such damage, it submitted citing U.B.A. Plc v. Iboro
(2009) LPELR- 8383 (CA).
It argued that the award of ₦100,000 cost by the lower
Court in favour of respondents was without basis, that the
Court does not make a habit of granting what a party did
not ask. It finally asked us to reverse the decision of the
lower Court in granting the claims of for counterpart
funding, general damages and the award of ₦100,000.00.
On issue 4, it was argued by appellant that the judgment of
the lower Court on the counterclaim was given without
jurisdiction and liable to be set aside. It anchored this
submission on the fact that the counterclaim itself and the
motion on notice that brought it into the proceeding were
all signed by Kayode Olatoke & Co. instead of a Legal
Practitioner called to the Bar within the meaning of Section
2(1) of the Legal Practitioners Act. That omission, it
argued, is fundamental, renders the counterclaim invalid, is
incapable of being cured by an amendment and denies the
Court of jurisdiction to hear it. For these, we were referred
to a number of cases including Okafor v. Nweke (2007)
10 NWLR (PT 1043) 521 (S.C.); Guaranty
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Trust Bank Plc v. Innoson (Nig.) Ltd (2017)
LPELR-42368 (SC); Bukola v. Oshundahunsi (2012)
LPELR-8546 (CA); Nigerian Army v. Samuel (2013) 14
NWLR (PT. 1375) 466 @ 483; Ministry of Works &
Transport, Adamawa State v. Yakubu (2013) 6 NWLR
(PT. 1351) 481 @ 496 (SC). It was submitted by counsel
on behalf of the Bank that the counterclaim is respondents’
‘originating’ or ‘initiating’ process against it because a
counterclaim is a separate and independent action. A Court
cannot adjudicate on an incompetent and therefore invalid
process like the counterclaim of the respondents, it was
submitted by Mr. Adigun relying on Ikpeazu v. Ekeagbara
(2016) LPELR-40847(CA) p. 22-24; Ogunmola v. Kida
(2006) 13 NWLR (PT. 997) 377 S.C. Counsel stressed
that a counterclaim collapses if the writ of summons in the
action is incompetent.
Mr. Adigun for appellant later submitted to us as additional
authorities the decisions of this Court in the cases of
Aberuagba & Anor v . Oyekan & Ors (2018)
LPELR-43669 particularly the dicta of Barka and Owoade
JJ.C.A and Integrated Merchants Ltd v. Osun state
Government & Anor. (2011) LPELR-8803 (CA)
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p. 9, (Adumein, JCA). Counsel urged us to resolve this
issue too against respondents and set aside the judgment of
the lower Court granting their counterclaim. Counsel
finally prayed us to allow its appeal.
Responding in the order the four issues were argued by
appellant Bank, Mr. Akanbi for respondents on issue 1
submitted that appellant failed woefully to prove the ₦62,
966, 477.72 debt it claimed from respondents so the lower
court was right in dismissing its claim. Counsel argued that
since respondents joined issues with appellant by asserting
that the actual amount of money appellant released to 1st
respondent was only ₦3,710,594 and not the ₦5,000,000.00
both parties initially agreed by the Equipment Lease
Agreement it should advance 1st respondent and since
evidence abound that it was actually ₦3,710, 594 that
appellant released to 1st respondent, the onus was on it
(appellant) as claimant to prove that it computed its said
debt of ₦62,966,477.72 on interest and bank charges
calculated on ₦3,710, 594 and not ₦5,000,000.00. That,
counsel argued, it failed to prove and its case was properly
dismissed.
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Learned counsel citing Adebiyi v. Umar (2012) 9 NWLR
(PT. 1305) 275 @ 302 and Wema Bank Plc v. Osilaru
(2008) 10 NWLR (PT. 1094) 150 @ 179 (CA) and
Habib Nig. Bank Ltd v. Gifts Unique Nig. Ltd (2008)
10 NWLR (PT 1094) 150 @ 179 argued that merely
tendering or dumping on the Court statements of accounts
as appellant did was not enough, that the Court cannot turn
itself to appellant’s Lord Advocate or an investigating body
and do the math for it.
On issue 2, of whether the cause of action in the
counterclaim was statute barred having been purportedly
commenced after six years of the alleged breach of
contract, respondents through their counsel argued that
the cause of action in respect of the counterclaim was a
continuous one as long as appellant and its consultant
managers were using the equipment for the plant from
1991 till 2001; that at best cause of action arose in 2002
when appellant caused her solicitors to write Exhibit 40
demanding for payment of the amount it claimed
respondents were owing it from the said equipment lease
agreement. The cause of action, counsel submitted, in fact
finally arose when appellant filed this action in 2003
13
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CA)
thereby evincing its intention not to be bound by its
agreements with respondents. Citing Iyizoba, JCA, in
Adesina v. Ojo (2012) 10 NWLR (PT. 1309) 552 @ 569,
counsel argued that cause of action cannot exist where
nothing has happened to entitle a plaintiff to some relief or
to sue someone. So long as appellant was holding over the
plant with a promise to efficiently service the debt but
neither handed the plant nor serviced the debt, a fresh
cause of arose, he submitted. For what constitutes
continuing cause of action counsel referred us to
S.P.D.C.N. Ltd v. Amadi (2010) 3 NWLR (PT. 1210) 82
@ 123 and C.B.N. v. Amao (2010) 15 NWLR (PT.
1219) 271 @ 296 para B-D. (S.C).
The claim of general damages, counsel submitted, cannot
be statute barred as it is contingent on the injury suffered
by respondent as a result of the breach of contract between
the parties, for which counsel cited N.M.A. v. MMA
(2010) 4 NWLR (PT. 1185) 613 @ 650. Counsel urged
us to resolve this issue against appellant.
On issue 3, respondents submitted that they proved their
claims of ₦4,536,100.00.00, general damages of ₦2Million
and costs of ₦100,000.00 the lower Court awarded them.
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In respect of the sum of ₦4,536,100.00.00 they said they
gave in their pleadings and Exhibit D14 a breakdown of
that sum as representing their total investment in their
Equipment Lease Agreement with appellant which was
breached by it. Exhibit D14, they asserted, is the
assessment appellant asked them to make when it was
contemplating selling the PVC Plant that was the subject of
their agreement. Exhibit D14 they said was sent to
appellant but it did not dispute nor protest the quotation,
not even in its pleadings or through evidence of its
witnesses. There is also no conflict between paragraphs 43
and 53 of their defence or their Exhibits D6 and D14, they
argued. They submitted that they need not show any
receipt to back up their expenditure on those items nor
prove that they were pre-agreed between them and
appellant, that once they are able to show that they
expended such amounts on the plant that was mismanaged
by the appellant, they are entitled to their expenses, they
submitted. Proof of special damages, they argued, means
no more than giving calculable assessment of the claim and
means giving the other party access to the facts upon
which the calculation is based.
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Respondents argued, too, that the lower Court was also
right in awarding them general damages since they proved
breach of contract by appellant. They submitted that 1st
respondent would have made profit from the plant if
appellant had allowed it to manage it, which position they
argued the Court is empowered to put them back by award
of special damages. U.B.A. Plc v. BTL Ind. Ltd (2006) 19
NWLR (PT. 1013) 61 @ 143; Omega Bank Nig. Plc v.
O.B.C. Ltd (2005) 8 NWLR (PT. 928) 547 @ 578,
Johnson Wax (Nig.) Ltd v. Sanni (2010) 3 NWLR (PT.
1181) 235 @ 251 were cited by respondents to buttress
this point.
On the cost of ₦100,000.00 awarded them by the trial
judge, they submitted that given the provisions of Order 55
R. 1 of the Rules of High Court of Kwara State 2005
enjoining the Court to indemnify the party who is in the
right for his expenses and also taking into account the fact
that the case dragged on for ten years in the trial Court,
costs of ₦100,000.00 was reasonable so we should not
interfere.
On issue four concerning their counterclaim and the motion
for the order deeming it, all of which were signed by
Kayode Olatoke & Co., respondents
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argued that there is a distinction between signing an
originating process in the name of a law firm and doing so
in respect of a process that does not originate the action
the latter of which they submitted a counterclaim belongs.
They argued that whereas the former is fundamental and
goes to the root of the action and automatically invalidates
the proceeding, the latter is mere irregularity and does not
invalidate. For this they strongly relied on what they
described as an unreported decision of the Supreme Court
of 23rd February, 2018 in SC/175/2005 in Heritage Bank
Ltd v. Bentworth Finance (Nig.) Ltd. They cited the case
in their brief of argument but their counsel only produced
to us after argument an incomplete version of what
purports to be the judgment of the Supreme Court
containing only a lead judgment credited to Ejembi Eko,
JSC. They argued that the process being challenged by
appellant is a ‘statement of defence’ which by the decision
in Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd
is not an originating process so the issue of its signing by
the law firm of Kayode Olatoke & Co. should be treated as
mere irregularity.
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Counsel on their behalf argued, too, that appellant did not
raise its said complaint of the ‘irregularity’ of the statement
of defence/counterclaim upon its service on it but rather
filed a reply and even cross-examined on it so it is too late
for it to complain now as it is deemed to have waived the
said ‘irregularity’.
Assuming, but without conceding that the irregularity is
even fatal, counsel further argued, appellant’s remedy lies
in the provisions of Order 4 R. 2(1) and (2) of the Rules of
the trial Court, which enjoins it to apply by motion on
notice or summons within reasonable time, and before it
takes further steps in the proceedings, to set aside the said
process. Appellant having failed to comply with that
procedure, they argued, it cannot be heard now and the
cases it cited are of no avail. Counsel cited a number of
cases on this point including an earlier unreported decision
of this Court of 22/07/2011 in Appeal No. CA/IL/ 21/29(?)
between the parties herein, Unity Bank Plc v. Kay
Plastics Nig. Ltd & Anor, and urged us to resolve this
issue too against appellant and dismiss its appeal with
heavy costs.
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In reply, Mr. Adigun for appellant argued that appellant’s
challenge to the validity of the counterclaim is one that
touches the jurisdiction of the Court and so capable of
being raised at any time; that it can never be too late to
raise it as any proceeding conducted without jurisdiction is
a nullity: for which he cited Agbiti v. Nigerian Navy
(2011) 4 NWLR (PT. 1236) 175 (SC) among other cases.
A counterclaim is a separate and independent action so it is
the originating process in itself and its signing by Kayode
Olatoke & Co. invalidated it, Mr. Adigun countered.
On respondents’ contention that improper signing of the
counterclaim by Kayode Olatoke & Co. is mere irregularity
which is deemed waived, and is waived by respondents
having not challenged the counterclaim within reasonable
time in line with Order 4 Rule 2 of the Rules of the lower
Court, Mr. Adigun relying on the decisions of the Supreme
Court in SLB Consortium Ltd v. NNPC (2011) 9 NWLR
(PT. 1252) 317 and FBN Ltd v. Maiwada (2013) 5
NWLR (PT 1348) 444 submitted that the failure of
respondents to comply with substantive provisions of
Sections 2(1) and 24 of the Legal Practitioners Act cannot
be mere irregularity neither can they be supplanted by
rules of Court.
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CA)
On the unreported decision of the Supreme Court in
Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd which
formed the backbone of respondents’ bid to sustain their
counterclaim, Mr. Adigun cautioned us to exercise extreme
restraint in placing reliance on an unreported decision
which is not also placed before us. Counsel went on to
submit that the said decision does not even avail
respondents as the document in issue there was a
statement of claim and not counterclaim as in this case. To
that extent, he argued, the relevant authority is FBN Ltd v.
Maiwada (2013) 5 NWLR (PT. 1348) 444 which was
incidentally a decision of the full Court of the Supreme
Court, as opposed to a regular 5-man Panel of the Court
that decided Heritage Bank Ltd v. Bentworth Finance
(Nig.) Ltd, he pointed out. A decision of the full panel of a
Court can only be overruled by another full panel of that
Court and not by a regular panel, counsel submitted citing
Yonwuren v. Modern Signs (1985) 1 NWLR (PT. 2)
244; Osafile v. Odi (1985) 1 NWLR (PT. 1) 17; Bogoro
Local Government Council v. Kyauta & Ors (2017)
LPELR-43296 (CA).
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Argument of the Cross-Appeal
The cross-appellants’ argument of their sole issue of
“Whether the learned trial judge was right when he
held that the writ of summons and statement of claim
of the claimant (now cross-respondent) signed in the
name of Uwakwe Abugu & Co. is competent, the
contents of same having been amended” ran along the
same lines with those canvassed by appellant against the
counterclaim in the main appeal. The pith of their
argument is that the entity called Uwakwe Abugu & Co.
that signed plaintiff/appellant/cross-respondent’s writ of
summons is not a Legal Practitioner within the meaning of
Sections 2(1) and 24 of the Legal Practitioners Act so it is
incompetent and left the Court without jurisdiction to
entertain it and wrong in its decision overruling their
contention to that effect. They stressed that being an
incompetent process the purported amendment by the
lower Court is also invalid and incapable of curing it,
contrary to Her Lordship’s reasoning, neither is it one that
can be cured by rules of Court.
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For these submissions they cited basically the same
cases cited by appellant in their argument against the
counterclaim and urged us to uphold their cross-appeal and
strike out the claims of the cross-respondent in their
entirety.
As earlier pointed out, Unity Bank Plc did not respond to
the cross-appeal. Even more noteworthy, its counsel Mr.
Adigun had no answer to the submission of Mr. Akanbi for
cross-appellant, during argument of the appeal on
30/05/2018, that its failure to respond to the cross-appeal
meant it had conceded to it.
Resolution of issues
The first issue that needs to be resolved in both appeal and
cross-appeal is the validity of the process or processes by
which the claim and counterclaim were commenced at the
trial Court. The resolution of that issue may even render
otiose all the other issues in the main appeal relating to the
correctness or otherwise of the decision of the lower Court
on the merits of the case the parties brought before it. This
is so because of the settled position that if a Court lacks
jurisdiction its decision, no matter how well conducted, is a
nullity: Madukolu v. Nkemdilim (1962) SCNLR 341 @
348 (Bairamian, J.S.C.).
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My Lords, permit me, therefore, to adopt an unconventional
approach here by starting with the cross-appeal targeted at
the main claim instead of beginning from the main appeal. I
do so for two reasons: (1) the cross-appeal challenges the
validity of the main claim and the jurisdiction of the lower
Court over it, and (2) the invalidity of the originating
summons may have a direct bearing on whether
respondent/cross-appellant’s counterclaim, which is only
attacked in the main appeal, can survive without it. I
thought I should first deal with the big masquerade,
regardless of where it may be found, before coming to the
smaller one. So I start with the cross-appeal.
The cross-appeal
The issue of lack of jurisdiction in the lower Court which is
raised in both the main appeal and cross-appeal is founded
on the manner the writ of summons and the counterclaim,
including the motion by which time was extended to deem
it filed, were signed not by Legal Practitioners but by the
law firm of Uwakwe Abugu & Co. in respect of the writ of
summons and original statement of claim, and by Kayode
Olatoke & Co. in respect of the said motion on notice
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dated and filed on 13/5/2005 and its counterclaim both of
which span pages 98 – 111 of the records of appeal.
It is now well settled in our jurisprudence that only Legal
Practitioners called to the Bar as stated in Sections 2(1)
and 24 of the Legal Practitioners Act, and not law firms,
can sign legal processes including originating process. This
position is so well entrenched in our jurisprudence that it is
no longer open to disputation. The cases of Okafor v.
Nweke (2007) 10 NWLR (PT. 1043) 521 (S.C.);
Guaranty Trust Bank Plc v. Innoson (Nig.) Ltd (2017)
LPELR-42368 (SC); Bukola v. Oshundahunsi (2012)
LPELR-8546 (CA); Nigerian Army v. Samuel (2013) 14
NWLR (PT. 1375) 466 @ 483; Ministry of Works &
Transport, Adamawa State v. Yakubu (2013) 6 NWLR
(PT. 1351) 481 @ 496 (SC); SLB Consortium Ltd v.
NNPC (2011) 9 NWLR (PT. 1252) 317 and FBN Ltd v.
Maiwada (2013) 5 NWLR (PT. 1348) 444 cited by both
parties establish that point beyond doubt. I guess that also
was the reason behind the claimant/appellant/cross-
respondent’s well informed and commendable decision not
to contest defendants’/respondents’/cross-appellants’
attack on the validity of its writ of summons, nay its
24
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claim, despite the fact that the trial judge ruled in its favour
when cross-appellant raised that same point in their
address before that Court. An incompetent processes,
contrary to the reasoning of the lower Court, cannot be
corrected or amended. Any purported amendment of such
process is also invalid and amounts to waste of time.
Incidentally, I had cause (in company and concurrence of
my learned brothers Lokulo-Sodipe and Akinbami, JJ.C.A) to
address this same issue comprehensively in my Unreported
lead Judgment of 07/03/2016 in CA/EK/82/2016: Abiodun
Akinyede & Anor v. Dr. Francis Akinyede.
So, Folayan J. was, with due respect, incorrect when she
held in her judgment while overruling cross-appellant that:
“It would be recalled that there was an amendment granted
by this Court to amend the original processes filed in 2003.
The complaint here is on the originating process filed on
11th June 2003 (writ of summons) and 17th October, 2005
(statement of claim). There was an application granted for
amendment and this complaint and objection is not on the
amended statement of claim.
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An amended process supersedes the original which was
amended and the process of this Court which brought hat
amendment into being is still a valid decision of this Court
which has not been challenged or reversed on appeal.”
In my aforementioned unreported judgment in Abiodun
Akinyede & Anor v. Dr. Francis Akinyede, I referenced
Order 5 Rule 1 of the old Ondo State High Court Rules
stating that writ of summons shall be prepared by Legal
Practitioner. Order 5 Rules 1 and 2 of the now repealed
Kwara State High Court (Civil Procedure) Rules 1989
applicable in the lower Court in 2003 when appellant/cross-
respondent filed its summon also states that it is the
plaintiff’s solicitor or the Registrar of Court, if the plaintiff
is illiterate or doesn’t have a solicitor, that shall prepare
writ of summons. It reads:
Order 5.
R.1(1)
A writ of summons shall be issued by the Registrar, or
other officer of the Court empowered to issue summons, on
application.
(2) The application shall ordinarily be made in writing by
the plaintiff’s solicitor by completing from 1 in the
Appendix to these Rules, but the Registrar or other officer
as aforesaid, where the applicant for a writ of
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summons is illiterate, or has no solicitor, may dispense with
a written application and instead himself record full
particulars of an oral application made and on that record a
writ of summons may be prepared, signed and issued.’
Also worthy of note are the provisions of Order 5 Rule 1 of
the 2005 Rules of the High Court of Kwara State stating
that ‘Originating process shall be prepared by a claimant or
his Legal Practitioner …..’
Uwakwe Abugu & Co. not being a solicitor or Legal
Practitioner as defined by the Legal Practitioners Act
cannot validly prepare let alone sign a writ of summons,
consequently the writ it prepared and signed for
appellant/cross-respondent is invalid and remained so
regardless of the amendment the lower Court purports to
have granted it. In the light of that, the cross-appeal has
merit and is allowed.
And that takes me back to the main appeal.
The Main Appeal
And here my view is that there is no way the said
counterclaim of defendants/respondents can survive the
invalidity of the writ of summons. While it is true that a
counterclaim is usually described as a separate and
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independent action, we must not fail to put that legal jingle
in its proper context, just as Nnaemeka-Agu, JSC, in Ojibah
v. Ojibah (1991) 5 NWLR (PT. 191) 296 also exhorted
counsel and the Courts to be wary of “deciding cases and
issues on the established legal jingles and catch-phrases
without fully asking one’s self how well they fit into the
particular facts of the case.” A counterclaim is an
independent and separate action from the main claim only
to the extent that it has a life independent of the plaintiff’s
claim which the Rules of Court and the Forms made
pursuant thereto require to be endorsed on writ of
summons before issue. (See a Copy of Form 1 - the format
of Writ of summons - contained at pages 202 – 204 of the
2005 Rules of the Kwara State High Court). The writ of
summons which is a document in the name of the State or
O f f i c e r o f C o u r t , u s u a l l y t h e R e g i s t r a r ,
summoning/commanding the defendant to appear to an
action in the name of the plaintiff and which usually opens
with the command “You are hereby commanded that
within …. number of days you cause an appearance to be
entered
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for you in an action at the suit of …… and in default of your
so doing the claimant may proceed therein and judgment
may be given in your absence”, is actually the only
originating process for all actions required by the Rules of
Court to be commenced by writ of summons. What
constitutes the claim of the claimant in the writ, which the
defendant is at liberty to respond with a ‘counterclaim’, is
simply the endorsement close to the end of the writ. That
endorsement is just one of several that the Rules and the
Form stipulate be made on the summons before issue. That
part of Form 1 at p. 203 of the Rules of the lower Court,
incidentally occupying just a very little portion of it for that
matter, reads thus:
Endorsement to be made on the writ before issue thereof.
The claimant’s claim is for, ………
It is this endorsement of the claim on this portion of the
writ of summons which the claimant also further
particularizes and elaborates upon in his statement of claim
that the defendant counterclaims to which counterclaim is
properly described as
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independent and distinct action from the claim endorsed by
the claimant, such that even if that claim is held statute
barred, not prosecuted, withdrawn, struck out for failure to
disclose cause of action, declared incompetent for any
other reason or even fails on the merits for lack of proof,
the counterclaim is not affected. It is in that sense and that
sense alone that a counterclaim is an independent and
separate action from the main action or claim and not that
it is an originating process of its own as suggested by
counsel or one hanging in the air, so to speak, without an
originating process to support it. A counterclaim, I repeat,
draws life from the originating process (the writ of
summons in this case) filed by the claimant and backed by
the power of the State or officer of Court commanding the
defendant to appear and contest the action or face the risk
of having judgment entered against him in his absence.
That being the case, any defect that affects the writ of
summons and renders it invalid as in this case is bound to
adversely affect every other thing founded on it including
claim and counterclaim.
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It has to be noted too that there are only four ways of
originating an action, otherwise called originating
processes, recognized by both the 1989 Rules of the High
Court of Kwara State applicable at the time of the
commencement of this action and the present 2005 Rules
of that Court. These are:
1. Writ of summons,
2. Originating summons,
3. Originating motion, and
4. Petition.
Order 1 Rule 1 of the 1989 Rules as well as Order 2 Rule 1
of the present 2005 Civil Procedure Rules of the Kwara
State High Court both of which are similarly subtitled
‘Form and Commencement of Action’ are in agreement on
this with their also similarly-worded provision that reads:
Subject to the provisions of any enactment, civil
proceedings may be begun by writ, originating
summons, originating motion or petition, as
hereinafter provided.
Every other process, including statement of claim, witness
statements on oath and so forth required by the innovative
‘frontloading’ 2005 Rules of Court to accompany the
originating processes aforementioned are simply what they
are: mere accompaniments and not originating processes.
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That much is further made clear by the following provisions
of the 2005 Rules of the lower Court which are also
duplicated in the Rules of all other High Courts in this
country. First is Order 2 Rule 2 (2) which says:
R.2 (1) All civil proceedings commenced by writ shall
be accompanied by :
(a) statement of claim.
(b) list of witnesses to be called at the trial,
(c) written statements on oath of the witnesses and,
(d) copies of every document to be relied on at the trial.
Order 27 R. 1 (1) then makes the distinction between
originating proceses like Writs of Summons and their
accompaniments even clearer by providing that:
O. 27 R.1(1) The claimant shall file his originating
process and accompanying documents simultaneously
for service on the defendant or if there are two or more
defendants, on each defendant.
From this and the earlier analysis of the true nature of a
counterclaim vis-a-vis the writ of summons, the
incompetence of the writ of summons in his case
undoubtedly affected the counterclaim filed by
defendants/respondents pursuant to it. To argue the
contrary is to assert the legal and logical impossibility of
expecting something to stand on nothing.
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Even going beyond all that is that the counterclaim in this
case was, as earlier noted, brought into being through a
motion on notice that was prepared and signed by an
unknown and undisclosed person ‘PP’ (for) the same entity
called Kayode Olatoke and Co. That same undisclosed
person who may not even be a lawyer at all also signed
respondents’ attached counterclaim for ‘PP’ (for) Kayode
Olatoke and Co., which the lower Court deemed as properly
filed. (See p. 98 – 111 of the records again). That is the
process Mr. Akanbi for respondents is defending as valid
and having a life of its own and so capable of sustaining the
judgment the lower Court entered in favour of respondents.
My Lords, he does not have me with him. I am certain he is
not correct.
The purported unreported decision of the Supreme Court of
23rd February, 2018 in SC/175/2005 in Heritage Bank
Ltd v. Bentworth Finance (Nig.) Ltd cited by Akanbi
does not also change anything. In the first place counsel
only produced to us an incomplete copy of what purports to
be the judgment of the Supreme Court. The said judgment,
apparently downloaded from a website that
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goes by the name Nigeria Lawyer, only contains what
purports to be the lead judgment of Ejembi Eko, JSC. There
are no contributions from his Brother Justices Rhodes-
Vivour, Peter-Odili, Ogunbiyi and Sanusi (JJ.S.C.) whose
names also appear on its first page as having heard the
appeal with Eko, J.S.C. Even more curiously, the said
judgment is purportedly certified by one Bilikisu B. Musa
who described herself as Registrar of the Supreme Court of
Nigeria, even as the said document as said is downloaded
from the Internet and not obtained from the Supreme Court
where it was purportedly certified. That is not all, the
certification is also done only at the last page alone, as
opposed to the well noted procedure of the Supreme Court
certifying every page of its judgments. Mr. Adigun
cautioned us to be wary of relying on an unreported
judgment including the one in issue. I think he has a point.
One even wonders why a judgment said to have been
delivered by the Supreme Court since 23rd of February this
year (2018) has not been officially reported by any of the
several Official Law Reporting outlets, not even by
Electronic Law Reporters like Law Pavilion and Legalpedia
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8) LP
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who are noted for prompt reporting of the decisions of not
only Supreme Court but a good number of the decisions of
this Court too.
But assuming that the said incomplete copy of Heritage
Bank Ltd v. Bentworth Finance (Nig.) Ltd brandished
by respondents is actually genuine (and it may well be), it
must again be pointed out that the document in that case
that was signed by a law firm instead of Legal Practitioner
was not an originating process like we have here but just a
statement of claim. In fact even in that case it was
recognized at p.17 by Eko, JSC, that “The law is settled as
this Court pointed out in Braithwaite v. SkyeBank Plc
(supra) at p.17; Nigerian Army v. Samuel (supra) at
486; Thomas v. Maude (2007) ALL FWLR (PT. 361)
1749; F.B.N. v. Uwada (respondent again curiously not
omitted in the said document) (2002) 2 NWLR (PT 805)
485; an irregularity affecting an originating process is a
fundamental irregularity that goes to the roots.” That
settles it, even as this Court (Barka and Owoade, J.C.A) had
also held in Aberuagba & Anor v. Oyekan & Ors (2018)
LPELR-43669 that a defect of this type affecting the
originating process affects a counterclaim too.
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8) LP
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On that note, I hereby also uphold issue 4 of the appeal and
declare the judgment of the lower Court on respondent’s
counterclaim also a nullity. The appeal of Unity Bank is
therefore also allowed and, for avoidance of doubt, the said
judgment of Folayan J. of 10/01/2013 is hereby set aside.
In so deciding, I am not unmindful of the preliminary issues
raised by Mr. Akanbi regarding the issues framed by
appellant or his other contention that a particular finding of
the trial judge on the counterclaim was not appealed. Those
arguments may have been valid if the issue here was not
one of jurisdiction. If a Court lacks jurisdiction whatever
happened before it and what it said in the trial is a nullity.
A challenge of Court’s jurisdiction can neither be stifled by
procedural objections (Akegbejo v Ataga (1998)1 NWLR
(PT. 534) 459 @ 466; Okoye v. NCFC Ltd. (1991) 6
NWLR (PT. 199) 501 @ 540-541) nor ignored or swept
under the carpet under any other guise: Eze v. Attorney-
General of Rivers State (2002) FWLR (PT 89) 1109 @
1142 (Karibi-Whyte J.S.C.). For the same reason that the
proceeding before he lower Court was a nullity,
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8) LP
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every other issue canvassed in the appeal also become
academic and not worthy of a decision.
In the final analysis, both appeal and cross-appeal are
allowed on grounds of the invalidity of the writ of summons
and counterclaim and the proceedings of the lower Court
including its judgment of 10/01/2013 is/are declared nullity
and, for avoidance of doubt, set aside and the said case
struck out from that Court.
Parties shall bear their costs.
CHIDI NWAOMA UWA, J.C.A.: I read before now the
draft copy of the judgment of my learned brother,
BOLOUKUROMO MOSES UGO, JCA. The issue of
competence of the Appeal and cross-appeal were
comprehensively looked into and resolved by his Lordship
and I have nothing to add. I agree that the Appeal and
Cross-Appeal are meritorious and I also allow same to the
effect that the proceedings before the lower Court
including the judgment is a nullity, same is set aside. I
abide by the order awarding no costs in the leading
judgment.
HAMMA AKAWU BARKA, J.C.A.: I was opportuned to
have read in draft the judgment just delivered by my
learned brother BOLOUKUROMO MOSES
37
(201
8) LP
ELR-44
977(
CA)
UGO JCA. I fully endorse the resolution of the sole issue in
the appeal, as well as the issue raised in the Cross Appeal.
My Lord has brilliantly dealt with the arguments to my
satisfaction. The judgment of the lower Court having been
founded on a defective writ of summons, the entirety of the
proceedings before it was a nullity. It is accordingly set
aside by me and the case struck out being incompetent.
38
(201
8) LP
ELR-44
977(
CA)
Appearances:
Teju Adigun Esq. with him, Grace Jogoh Esq. andOlatobera Oladeji Esq.- for Appellant/Cross-Respondent For Appellant(s)
Oludare Akanbi Esq. with him, K. Aminu Esq. andO.J. David Esq.- for Respondent/Cross- AppellantFor Respondent(s)
(201
8) LP
ELR-44
977(
CA)