ABERUAGBA & ANOR v. OYEKAN & ORS
In The Court of Appeal of Nigeria
On Friday, the 12th day of January, 2018
Before Their Lordships
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
1. ADISA WAHEED ABERUAGBA
2. RASHEED AKANGBE OLUSHESI
(for themselves and as head and representatives of the Esimikan Family of Ilado-Odo and Inagbe Islands)-Appellants
1. PRINCE MOBADENLE OYEKAN
2. ALABI DOSUMU
3. MUFUTAU TADEYO
4. ADESOJI AJOSE
(for themselves and as head and Representatives of Asi- Dosumu Family of Lagos)
5. CHIEFTAINCY COMMITTEE, OJO LOCAL GOVERNMENT AREA
6. CHIEFTAINCY COMMITTEE AMUWO ODOFIN LOCAL GOVERNMENT AREA
7. LAGOS STATE COUNCIL OF OBAS AND CHIEFS
8. GOVERNOR OF LAGOS STATE
9. ATTORNEY GENERAL OF LAGOS STATE-Respondents
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Lagos State High Court in suit No. ID/1133/1995, between Adisa Waheed Aberuagba and one other (suing for themselves and as head and representatives of the Esimikan Family of Ilado-Odo and Inagbe Islands) and Prince Mobadenle Oyekan and Twelve others, delivered on the 5th of June, 2012; Coram Inumidun Akande (CJ). In the judgment stated above the Court dismissed the claimants claim and granted the counterclaim of the 1st 7th defendants.
It should be recalled that the appellants as claimants before the lower Court, approached the Court via a writ of summons dated and filed on 21st of April, 1995. By the claimants amended statement of claim dated the 24/11/1998, but filed on the 27/11/1998, claimants jointly and severally claimed against the defendants the following reliefs:-
1) Declaration that the 1st to 7th Defendants are not members of the Esimikan family of Ilado-odo and Inagbe
2) Declaration that all that piece or parcel of land known as Ilado-Odo and Inagbe Islands are the property of the Esimikan Family of Ilado-Odo and Inagbe who are entitled to the title, general control and superintendence thereof.
3) An Injunction restraining the defendants, their agents, servants, privies, assigns or otherwise however from entering into, trespassing upon or in any other manner interfering with all that land known as Ilado-Odo and Inagbe Islands.
4) An Injunction restraining the 1st – 7th defendants their agents, servants, privies, assigns or otherwise however from representing, parading of otherwise holding themselves out as members of the Esimikan family of Ilado-Odo and Inagbe Islands.
5) Declaration that the purported nomination, and or appointment of the 2nd defendant by the 1st defendant as the Onilado of Ilado and Inagbe in the Ojo Local Government of Lagos is not in accordance with the custom and tradition of the Esimikan family and people of Ilado-Odo and Inagbe, and is thus wrongful, illegal, null and void.
6) A declaration that the 1st defendant or any Oba of Lagos for that matter has no jurisdiction to nominate appoint or in any other way interfere in the appointment of nomination of the plaintiffs family for the position of Baale of Onilado of Ilado-Odo and Inagbe and as such that the purported and or appoint of the 2nd defendant by the 1st Defendant for the ancient stool of Onilado of Ilado-Odo and Inagbe in the Ojo Local Government of Lagos Sate is illegal, null and void and of no effect whatsoever not being in accordance with the custom and tradition of Wsimikan family of Ilado-Odo and Inagbe.
7) A declaration that as the current regent Baale of Ilado-Odo and Inagbe the 3rd plaintiff is the rightful ruler of Ilado-Odo and Inagbe Islands under the native law, tradition and custom of Ilado-Odo and Inagbe.
8) An injunction restraining the 2nd defendant from representing parading or in any other way holding himself out as Onilado of Ilado-odo and Inagbe and from performing any of the customary functions of that office and assuming any of the appurtenances thereof.
9) An order setting aside the purported nomination/appointment of the 2nd defendant as Onilado of Ilado-Odo and Inagbe.
10) An injunction restraining the 8th to 12th defendants from approving the purported nomination of the 2nd defendant setting in Motion thereof the procedures of installation or installing him or giving him staff of office or recognizing or continuing to recognize or further validate the 2nd defendant’s appointment as the Onilado of Ilado-OdoInagbe islands or dealing with him in any way as the Onilado of Ilado-OdoInagbe.
11) A declaration that the purported declaration of customary law regulating selection to the stool of Onilado of Ilado-Odo purportedly rushed and made by the 10th, 11th and 12th defendants in consent with the other defendants, is not in accordance with the customary law of Ilado-Odo does not contain a true statement of the customary law of Ilado-Odo Inagbe regulating selection of the Onilado of Ilado, and is therefore illegal, null, void and of no effect.
12) An order setting aside the purported declaration and all acts done pursuant thereto by the defendants or any combination of them, and their agents, assigns servants, and privies.
13) An injunction restraining the 8th to 12th defendants, agents, privies, assigns servants or otherwise however called from liking any action or any further action, or in any other manner whatsoever relying upon or recognise the purported declaration of the customary law regulating selection
to the stool of Onilado of Ilado-Odo and Inagbe Islands.
14) A declaration that SUIT NO. ID/335/73, GNIYU DOSUNMU & ORS. VS. YAKUBU TADEYE AND ID/158/76: PRINCE SURAJU DOSUNMU VS. PRINCE DOSUNMU, having no application to the plaintiff’s family which is the true Esimikan family of Ilado-Odo and Inagbe Islands.
15) An order setting aside the judgments in SUIT NO. ID/335/73 and SUIT NO. ID/158/76 on the grounds of fraud, collusion and material falsehood between the plaintiffs and the defendants therein.
16) An order setting aside the proceedings and decisions of the standing Tribunal of Inquiry into Chieftaincy Affairs in Lagos State as it affects the Onilado of Ilado-Odo and Inagbe Chieftaincy in the exercise of this Court disciplinary jurisdiction.
17) An order setting aside the Onilado of Ilado (Approval of Appointment) Notice of 1995.
The 1st – 7th defendants in the 3rd amended statement of defense dated the 6th November, 2009 denied each and every allegation in the amended statement of claim, and further counterclaimed as follows-
1. Declaration that the 1st to the 7th defendants are members and accredited representatives of the Esimikan family of Ilado-odo and Inagbe in the Ojo Local Government Council Area of Lagos State.
2. A declaration that the 2nd to the 7th defendants are members of the Executive Committee of the Esimikan family Council of Ilado-Odo and Inagbe charged with the sole control, overall superintendence over all dealings with regard to the Esimikan family lands at Ilado-Odo and Inagbe and also the custody of all moneys accruing therefrom for themselves and on behalf of all the members of the Esimikan family of Ilado-Odo and Inagbe as setup Suit No. LD/188/76 between S.A. Dosumu and others and G. Dosumu.
3. A perpetual injunction restraining the 1st 3rd Claimants, their agents, servants, privies, assigns or otherwise howsoever from representing, parading or otherwise holding out themselves as members of the Esimikan family of Ilado-Odo and Inagbe-Odo.
4. A perpetual injunction restraining the 1st 3rd Claimants, their agents, servants, assigns, privies or otherwise howsoever from laying claims to ownership of the lands and in any way whatsoever dealing with such lands belonging to the Esimikan family at Ilado-Odo and Inagbe-Odo.
It is on record that all other parties filed statements of defense with the exception of the 8th defendant therein. Trial commenced on the 19/11/1997 with the claimants and the 1st – 7th defendants adducing evidence. Written addresses were ordered, filed and adopted. The vexed judgment is that dated the 5th of June, 2012. In dismissing the claimants claim, the lower Court at page 33 of the judgment located at page 630 of the records stated that: –
“from the totality of the evidence of the claimants herein proof of the facts in their Amended Statement of Claim the Court observes that they predicated their claim on the ownership of the 2 Islands and traditional history which they have failed woefully to prove. It is the law that where a plaintiff predicates his claim in a land suit on ownership or exclusive possession and have failed to prove wither of them which he has pleaded, his claim should be dismissed. The Court in this judgment shall dismiss the claimants’ claims in the Amended Statement of Claim. See the case of Adesanya vs Otuewu (1993) 1 NWLR (Part 270) 414.Â Where a defendant can show a better title, the plaintiff cannot rely on mere possession. Proof of good title supersedes possession. See the case of Adesanya Vs. Otuewu (supra).”
With respect to the counterclaim, the trial Court reasoned at page 34 of the judgment, also to be found at page 631 of the records that:-
“in the instant case, the 1st to 7th defendants have by their credible evidence before the Court established that they are the true descendants of Esimikan the founder of the 2 Islands of Ilado-Odo and Inagbe, and that the 2nd defendant is entitle to be the Onilado of Ilado-Odo and Inagbe. That as the true descendants of Esimikan they are entitle to the ownership of the 2 Islands which are their own by right of inheritance. These therefore are better title than those of the Claimants. There are compelling evidence of act of ownership and possession by the various Exhibits tendered through Dw2 at the trial and they are relied on in this judgment. Even the relevant claimants’ witnesses testimonies at the trial support the 1st to 7th defendants in their claims before the Court.
It is my considered view that the evidence of the claimants in proof of the facts in their Amended Statement of Claim gives
credence to the facts that they have been on the 2 Islands as tenants of the 1st to 7th defendants’ forefathers to whom they have been paying rents. CW1, CW2, CW3, CW4 and CW5 confirmed this in their testimonies at the trial.
Further still the lower Court at page 40 of the judgment emphasized that:-
“as the claimants did not file defense to counterclaim as such they did not join any issue with the 1st to 7th defendants in their pleading. Again the Court will discountenance Mr. Aladesanmi’s submission as it relates to the counterclaim as well. When a plaintiff adduces oral evidence which establishes his claim against the defendant in the terms of his Writ of Summons, and that evidence is not rebutted by the defense, the plaintiff is entitled to judgment. See the case of Nwogo vs. Njoku (1990) 3 NWLR (part 140) 571. The Counterclaim is taken to be Statement of Claim in this case. The 1st to 7th defendants are claimants in the counterclaim.
Whilst the claimants in the main suit are the defendants in the counterclaim. The 1st to 7th defendants herein are thus entitled to judgment in the counter-claim.”
Consequently judgment was entered for the counter-claimants, when the lower Court stated that:
As the claimants did not file defense to the counterclaim as such they did not join issue with the 1st to 7th Respondents in their pleading. Again the Court will discountenance Mr. Aledesanmi’s submission as it relates to the well. When a plaintiff adduces oral evidence which establishes his claim against the defendant in the terms of his writ of summons, and that evidence is not rebutted by the defense, the plaintiff is entitled to judgment. See the case of Nwogo vs. Njoku (1990) 3 NWLR (Pt. 140) 571. The counterclaim is taken to be the statement of claim in this case. The 1st to 7th Respondents are the claimants in the counterclaim, whilst the claimants in the main claim are the defendants in the counterclaim. The 1st to 7th defendants herein are thus entitled to judgment in the counterclaim. The counterclaim hereby succeeds. The Court hereby enters judgment in favor of the 1st to 7th defendants counterclaimants as per the reliefs sought.
Aggrieved by the decision of the lower Court, the claimants now appellants filed a Notice of Appeal dated the 8th of June, 2012 predicated upon 16 grounds of appeal. The extant Notice of Appeal however is the further amended Notice of Appeal filed on the 4/11/15 with the leave of Court, predicated on two grounds. The grounds of appeal and their particulars reads as follows:-
1. The learned trial Chief Judge erred in assuming jurisdiction to hear parties on the reliefs sought when the purported suit filed by the claimants was null and void ab initio, and should have been struck out
(a) The originating processes by which the claimants purported to institute the action before the lower Court was not signed by a known legal practitioner contrary to law.
(b) A Court process that is not signed by either the party or his counsel is null and void, hence the originating processes were null and void ab initio
(c) A Court of law can inter alia assume jurisdiction to entertain a suit when the suit is initiated by due process of law.
(d) The lower Court ought to have consequently declined jurisdiction in the circumstance.
2. The learned trial Chief Judge erred in law in assuming jurisdiction over the counterclaim filed by the 1st – 7th defendants’ before her when the purported suit filed by the claimants was null and void ab initio
(a) The originating processes by which the claimants purported to commence the action were null and void due to the fact that they were not signed by a known legal practitioner.
(b) Consequently, there were no plaintiffs or claimants before the lower Court, hence, there could be no defendants before the lower Court.
(c) A counter-claim is not one of the ways of commencing an action at the High Court, but is by law, a separate action filed by a defendant, which must be included in the statement of defense.
(d) Where there was no claim, there could be no counterclaim, and the 1st- 7th defendants ought to have filed a fresh action rather than trying to put something on nothing.
(e) Where an act (such as instituting an action is a nullity) any proceedings founded thereon would of necessity also amount to a nullity.
(f) The judgment pronounced by the lower Court on the purported counter-claim amounted to a nullity in the circumstance.
In the Appellants Amended brief of Argument dated the 3rd of November, 2015 filed on
the 4th of November, 2015, and deemed filed on 24th of February, 2017 one issue was raised for the resolution of this appeal. It is:
Whether by virtue of the void writ of summons, the lower Court lacked the jurisdiction to have entertained the suit in its entirety, thereby rendering the judgment on the main suit as well as on the counterclaim a nullity.
The 1st – 4th Respondents reacted to the appeal by distilling a sole issue to wit:-
Whether the judgment of the High Court on the counterclaim was affected by the invalidity of the writ of summons and pleadings of the appellants.
The 6th Respondent similarly identified a single issue for resolution. It is;
Whether the counterclaim is liable to be struck out on account of the incompetence of the writ of summons and statement of claim.
For the 7th – 9th Respondents, two issues were identified for the resolution of the appeal.
1/ Whether in the face of a void writ of summons, the lower Court can properly assume jurisdiction to entertain the Appellants suit, and
2/ In the event of answering the above issue in the negative, what is the effect of the proceedings and judgment of the lower Court that resulted in this appeal.
The appellants in moving their appeal dwelt at length on the importance of jurisdiction being fundamental and which can be raised at any stage of the proceedings. The decisions of Christaben Group Ltd vs Oni (2008) 11 NWLR (pt 1097) 89, Odofin vs Agu (1992) 3 NWLR (pt 229) 350, Dr. Tosin Ajayi vs Princess (Mrs) Olajumoke Adebiyi & Ors (2012) 11 NWLR (pt 1310) 137 at 202, Oloba vs Akereja (1988) 3 NWLR (pt 84) 508, Peenok Investments Ltd vs Hotel Presidential Ltd (1983) 4 NCLR 122, Galadima vs Tambai (2000) 11 NWLR (Pt.677) 1, Adeigbe vs Kushimo (1965) 1 All NLR 248, Otukpo vs John (2000) 8 NWLR (pt 669) 507, Ajuwon vs Adeoti (1990) 2 NWLR (pt 132) 271, NDIC vs Savannah Bank Plc (2003) 1 NWLR (Pt 801) 311 at 356; were cited in that respect. Learned counsel also submitted that before any Court of law can assume jurisdiction to determine or adjudicate on a cause or matter, the Court must be competent. The cases of Madukolu vs Nkemdilim (1962) 2 SCNLR 341; SLB Consortium Ltd vs NNPC (2011) 9 NWLR (pt 1252) 317, B.M Ltd vs Woermans Line (2009) 13 NWLR (pt 1157) 149, Porbeni vs Pabod Finance Investment Co. (2002) 3 NWLR (pt. 754) 452, Eze vs Okechukwu (2015) 10 NWLR (pt 1467) 307 at 321, were cited on the Point.
It is the submission of learned counsel that a Court process can only be signed by a legal practitioner and not a law firm. The case of Okafor vs Nweke (2007) 10 NWLR (Pt.1049) 52, Eze vs Okechukwu (2015) 10 NWLR (Pt.1467) 307 at 320 were relied upon, consequently it is the argument of learned counsel that the writ of summons which commenced the action at the Lagos state High Court, in the suit, having been signed by a law firm as against a legal practitioner known to law, the action as commenced was null and void hence the lower Court lacked the jurisdiction to have entertain the suit and which ought to have been struck out.
He argued that an act which is a nullity has no legal consequence being incurably bad, and on this preposition counsel cited Lord Denning in Mcfoy vs UAC (1962) A. C. 152, adopted by this Court in Fatai Sule Dakan & Ors vs Alhaji Lasisi Asalu & Ors (2015) 13 NWLR (pt 1475) 47 at 55 where it was held:-
“if an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the Court declare it to be so. And every proceedings which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.
Looking at the case founding this appeal, counsel holds the view that there was no claim before the lower Court over which the Court could have assumed jurisdiction. He referred to the four ways of commencing an action before the lower Court, i.e.
(i) by writ of summons
(ii) Originating Summons
(iii) Originating motion and
and observed that a counterclaim is not initiated in any of the above mentioned methods, and therefore unknown as a form of commencing an action.
The learned counsel submitted that a counterclaim is a claim for a relief against on opposing party after an original claim has been made. He drew the Courts attention to the case of Maobison Interlink Ltd Vs U.T.C. (Nig) Plc (2013) 9 NWLR (pt 1359) 1197 to the effect that where no original
claim has been made, it would be impossible to validly make a counterclaim, insisting that the jurisdiction of the lower Court was ousted with regards to the counterclaim which arose from the void exercise. He commends the decision of Eze vs Okechukwu (2015) 10 NWLR (pt 1467) 307 at 324 and further referred to Order 17 Rule 6 of the Lagos State (Civil Procedure) Rules 2004, maintaining that there must be a pending suit or action before a counterclaim could be filed in the statement of defense.
Further submitting that the counterclaim emanating from a void act ought to have been struck out by the lower Court, emphasized that where a Court lacks jurisdiction to entertain a suit, any proceedings thereon would amount to a nullity including any decision even where the parties consent to it. In conclusion learned counsel urged this Court to allow the appeal upon the following reasons;
(a) Jurisdiction of a Court is a fundamental issue which can be raised at any stage of proceedings and even at the Apex Court for the first time, by either party or even suo motu by the court.
(b) Any proceedings conducted without jurisdiction amounts to a nullity no matter how well conducted and any decision or judgment thereon also amounts to a nullity.
(c) The writ of summons by which the suit was commenced amounted to nullity by virtue of not being signed by a known legal practitioner thereby rending the entire proceedings founded upon it void ab initio.
(d) The legal consequence of a void act is that it never occurred and confers absolutely no rights, hence, there was never any plaintiff of claimants, neither were there any claims before the lower Court. Consequently, there could have been no defendant neither could there have been a counter claim before the lower Court.
(e) A nullity can never be the basis or foundation for anything nor can it precipitate any valid action, hence, the 1st – 4th respondents, who purported to file a counterclaim when there was no claim at all, ought to have commenced a fresh action for their reliefs sought.
(f) The entire judgment of the lower Court amounts to a nullity, as the void action ought to have been struck out for want of jurisdiction as the voidness was ab initio.
In opposing the Appeal and with respect to the only issue identified by the 1st – 4th Respondents, learned counsel for the 1st – 4th Respondents referred to the processes filed by the appellants originating, their claim before the lower Court, submitting that the appellants by their submissions in this appeal have conceded to the fact that their writ was defective the consequence of which is that it ought to have been struck out. The cases of Okafor vs Nweke (2002) 10 NWLR (Pt.1043) 521, Braithwaite vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, FBN Plc vs Maiwada (2013) 5 NWLR (Pt.1348) 444 and S.L.B Consortium Ltd vs NNPC (2011) 9 NWLR (Pt 1252) 317 were cited on the point.
On the contention by the appellants that the invalidity of their originating process not only vitiated their action but should also be extended to the counterclaim, and thereby urging the Court to set aside the judgment of the lower Court on the writ of Summons and the counterclaim, learned counsel drew the Courts attention to the English case of Winterfield vs Bradrum (1877-78) 3 QBD 3 24 at 326 per Justice Brett, and pages 210-211 of Odgers on Pleadings and Practice 18th Edition by G. F. Harwood and B. A. Harwood, followed in Ayegbola vs Esso West Africa Inc. (1966) 1 All NLR 170 on the nature and meaning of a counterclaim:
“A counter claim to quote from Harlsbury’s Laws of England 3rd Edition Vol. 34 page 395 para. 671, is-
“A weapon of offence which enables a defendant to enforce a claim against the plaintiff as effectually as in an independent action”
Instead of suing separately, the defendant may insert his claim into the plaintiffs suit under the label of counter claim if it is of a kind which by law he is entitled to raise and have disposed of in the plaintiffs suit.”
Counsel also relied on the case of Shemar Nig Ltd vs Mokt Industries (2009) LPELR – 887 (CA) per Orji Abadua where it was held:-
“for all purposes except those of execution, the plaintiff’s claim and the defendant’s counter claim are two independent actions and the Court gives separate judgment and costs both in the original claim and on the counter claim. Accordingly, if for any reason the plaintiff’s action is stayed, discontinued, struck out or dismissed, the counter claim may be proceeded with.”
On the appellants submission that since the writ was bad, there was no action before the Court, and in
the absence of any actions, the 1st – 4th Respondents ought to have commenced a fresh suit, in other words, that the fate of the counterclaim is inexorably tied or linked to the fate of the plaintiff’s claim so that whatever vice, virus or defect that afflicts the plaintiffs claim also affect and afflicts the counterclaim; it was argued that before the advent of the judicature Act, and specifically the position of the English Courts in Megowon vs Niddleton (1883) 11 Q” BD 464 at 472 which held that:
“by the judicature Act, 1873, the Courts have power to grant to a defendant any relief which is properly claimed by him against the plaintiff and which might have been granted in a suit properly instituted by him for that purpose. By that enactment a defendant is permitted to set up a counter-claim….a counter-claim is not merely a defense, but has the same effect as a statement of claim in a cross action. It had never been the case before the Judicature Acts that discontinuance of an action had the effect of discontinuing a cross-action. It has been contended that the rules as to pleading a counter – claim is treated as part of the statement of defense, and that it was not intended that a counter-claim should have further vitality when the plaintiff’s claim is discontinued…but a counter-claim is not part of the plaintiff’s action and cannot be so treated…a plaintiff can deal only with his own case. He cannot touch that to which legislature has given the effect of a statement of claim in a cross-action.”
Further relying on the holding of our Court is Okonkwo vs CCB Nig. Plc (2003) 8 NWLR (pt. 822) 347 at 403 per Niki Tobi JSC, and Susainah (Trawling Vessel) Vs Abogun (supra) at page 488, where Salami JCA held:-
“the separate and independent nature of a counter claim notwithstanding that a counter claim is related to the principal claim is not symbolic nor symbiotic. The existence of the principal action not symbiotic that is why one can exist independently of the other. A withdrawal of failure of the principal action does not necessarily affect or prejudice existence of the counter claim vice versa. Since the judgment in the principal action is not interdependent on the judgment in the counter claim a vice in one cannot destroy the other.”
Learned counsel urged the Court, premised on the authority cited and relied upon by him to reject the appellants submission and to hold that the trial Court had jurisdiction to entertain the counter-claim and to grant the reliefs therein, and thereby dismiss the appeal.
The 6th respondent arguing in support of his sole issue; whether the counterclaim is liable to be struck out on account of the incompetence of the writ of summons and statement of claim, drew the attention of the Court to the processes filed by the appellant before the lower Court in the writ of summons and the appellants amended statement of claim all signed by unknown person. He referred to the provisions of Order 6 Rule 1 and Order 15 Rule 2 of the High Court (Civil Procedure) Rules of Lagos State 2004 and the case of Registered Trustees of the Apostolic Church Vs R. Akindele (1967) NMLR 262 on the requirement of Originating processes and pleadings being signed by a legal practitioner acting on behalf of the parties or by the litigants themselves.
Learned counsel on the state of the counterclaim, posits that a counterclaim is independent of the appellants suit, a suit of its own, and that only the main action filed by the appellant qualified to be struck out, leaving the counterclaim of the 1st – 4th respondents standing.
In support of the contention that a counterclaim is an independent action, learned counsel referred the Court to the decision in a number of cases including, Anambra State Government vs. Gemex International Ltd (2011) 20 WRN 135 at 158, Gowon vs. Ike Okongwu (1994) 2 NWLR (pt. 326) 355 at 364 Dabup vs. Kolo (1993) 9 NWLR (pt. 317) 254 at 281, per Ogundare JSC, Peterside vs. I.M.B (Nig) Ltd (1993) 2 NWLR (pt. 278) 712 at 731, and Ogbonda vs. Eke (1998) 10 NWLR (Pt.568) 73 at 82-83 amongst many others. Further and with respect to the status of a counterclaim, counsel cited the English cases of Witerfield vs. Bradnum (1877-8) 3 QBD 324 at 326 per Brett L.J, and Bower L.J in Amos vs. Bobbett (1889) 22 QBD 543 at 548. He differentiated the cases of Maobison Interlinks Ltd vs. UTC (supra) and Unuakhoni vs The State (supra), while commending the case of Nnachi vs Onuorah (2011) 22 WRN 77 at 96 and Adewuyi vs Odukwe (2005) JSC (pt. 11) 1 at 13 on what should be the judgment of the Court where the evidence is one sided. The conclusion of learned
counsel is that this Court enter an order dismissing the appellants appeal and to enter an order of striking out of the substantive suit instead of dismissal and to preserve the judgment on the counterclaim on the premise that a counterclaim is an independent action which survives the substantive suit, even where it is dismissed or struck out, and there being no appeal on the judgment on the counterclaim, same should be allowed to stand.
The 7th – 9th Respondents with respect to the 1st issue crafted, which is whether in the face of a void writ of summons, the lower Court can properly assume jurisdiction to entertain plaintiffs suit, is of the view that the lower Court cannot properly assume jurisdiction in a matter not properly initiated as was the case in the present appeal. Citing Madukolu vs Nkemdilim (supra), counsel opined that the writ of summons determines the jurisdictional competence of a Court. He submits that parties are all agreed that the writ of summons meant to kick start the action was not signed by a person known to law. He placed reliance on the cases of Eze vs Okechukwu (supra) and Okarika & Ors vs Samuel & Ors (2013) LPELR – 19935 (SC) where the Supreme Court interpreted Section of the Legal Practitioners Act 2004.
Still resting on the case of Okarika vs Samuel (supra) to the effect that:-
“Once an Originating process, be it Writ of summons or notice of appeal is not signed or authenticated either by the litigating party or the legal practitioner on his behalf, then the process is invalid and the jurisdiction of the Court is ousted. The defect is taken as incurable and the process signed in the name of a legal firm would not suffice.”
Respondent counsel opines that in the situation of the present circumstances, the processes were incompetent.
On issue 2 which poses the question, what is the effect of the proceedings and judgment of the lower Court that resulted to this appeal, counsel states that while the writ of summons and all other processes which are a nullity will be void, the proceedings with respect to the 1st – 4th respondents counterclaim will be affirmed.
He submits that where a Court is bereft of jurisdiction, any proceeding conducted without such power is an exercise in futility and therefore a nullity, and reference on this legal position is made to the cases of Yakubu vs. Federal Mortgage Bank of Nigeria Ltd (supra) and Management Enterprises Ltd vs. Otusanya (1987) 2 NWLR (pt.55) 179.
On why the judgment with respect to the counterclaim should be affirmed, counsel referred to the decision of this Court in Alaya vs. Isaac (2012) LPELR 9301 (CA) Obolo & Ors Vs. Ilukoyenikan & Ors (2013) LPELR 20324 (CA) on the nature of a counterclaim being a cross-action, and submits that the counterclaim can therefore stay alive not minding the death of the original claim of the appellants. He finally prayed that this Court dismiss the appeal and affirm the 1st – 4th respondents judgment on the counterclaim.
Replying to the arguments of the 1st 4th respondents, 6th respondent and the 7th -9th respondents jointly on points of law raised therein, the learned appellant’s counsel emphasized that the voidness of the purported suit is not an issue, the legal implication being that the lower Court cannot take cognizance of it, and ought to have been stuck out. He contended that none of the authorities cited by the respondents took care of situations such as the one under consideration, arguing that cases are authorities for what they decided, and referred to the case of Alh. Tajudeen Babatunde Hamzat vs. Alhaji Ireyemi Sanni (2016) 21 WRN 77 at 99, where it was held that: “No issues could have been joined on the pleadings unless the statement of claim was valid.”
He contended that it is only where there is a suit filed that the Court can strike out or dismiss. There been none filed, it becomes mere paper’s filed not amounting to filing a suit at the lower Court, and therefore urged the Court to allow the appeal.
All parties are on common ground on the established legal principle, that jurisdiction is fundamental in the determination of any matter before a Court of law, for as asserted by the Apex Court in Adesola vs. Raimi (1999) 14 NWLR (Pt. 637) 28 per Karibi Whyte JSC.
“It is an elementary but cardinal principle of the exercise of jurisdiction that where the Court lacks jurisdiction, the parties cannot confer and vest jurisdiction on it. Accordingly the fact that the parties fought a case erroneously on the basis that the Court had jurisdiction when there was none
cannot estop a party from subsequently taking the contrary position see Shitta Bey vs Attorney General of the Federation (1998) 10 NWLR (Pt.570) 392. It follows from this principle that jurisdiction cannot be acquired by consent of the parties, nor can it be enlarged by estoppels – see Jadesimi vs. Okotie Eboh (1986) 1 NWLR (Pt 16) 264. This principle is fortified by the well settled principle that the issue of jurisdiction which determines the competence to exercise jurisdiction can be raised at any stage of a trial and indeed even for the first time on appeal. See Bronik Motors Ltd and Anor. vs. Wema Bank Ltd. (1983) 1 SCNLR 296, Onyema vs. Oputa (1987) 3 NWLR (Pt.60) 259.”
It is also not an issue before us, the fact that the originating processes filed by the appellant as claimant before the lower Court was void in that, all the processes were signed in the name of “Chief Afe Babalola SAN and Co.”, and Rotimi Aladesanmi & Co.” respectively, as against the provisions of the law.
Now Order 6 Rule 1 and 15 Rule 2 of the Lagos State High Court (Civil Procedure) Rules 2004 provided as follows:-Order 6 Rule 1: Originating process shall be prepared by a claimant or his Legal Practitioner and shall be clearly printed on opaque A4 paper of good quality.
Order 15 Rule 2
pleadings shall be signed by a Legal Practitioner or by the party if he sues or defends in person.
The word Legal Practitioner has been defined under Section 24 of the Legal Practitioners Act 1975 to mean:-
A person entitled in accordance with the provisions of this act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office or Proceeding.”
What this means is that Originating Court processes, and pleadings shall be signed by either a Legal Practitioner acting on behalf of the party or parties or by the litigant himself where he acts without a counsel. This is the position of the law established by many cases including, Registered Trustee of the Apostolic Church vs. R. Akindele (1967) NWLR 262 Okafor vs. Nweke (2007) 10 NWLR (Pt.1043) 521 SLB Consortium Ltd. vs. NNPC (2011) 9 NWLR (Pt. 1252) 317, Eze vs. Okechukwu (2015) 10 NWLR (Pt. 1467) 307 at 320 and Okarika & Ors. vs. Samuel & Ors. (2013) 7 NWLR (Pt. 1352) 9 at 43 where the Supreme Court per Ogunbiyi JSC emphasized that:-
The purpose of Section 2(1) and 24 of the Act is to ensure that only a Legal Practitioner whose name is on the roll of this Court sign Court processes. In my considered opinion, the words employed in drafting Section 2 (1)and 24 of the Act are simple and straight forward. The internal Constitutions of the law is that Legal Practitioners who are animate personalities and not a firm of Legal Practitioners which is unanimated and cannot be found in the roll of this court.”
See also Osun State Property Development Corporation vs. Iyiola (2011) LPELR – 4807 (CA) where it was also held that:
A company or a firm of Legal Practitioner and though composed of Legal Practitioners is not a Legal Practitioner within the contemplation of Order 1 Rule 5 of the Court of Appeal Rules 2007 and cannot therefore sign processes for filing in Court. See Oketade vs. Adewunmi & 4 Ors. (2010) 23 SC (Pt.1) 40, Ogundele vs. Agri(2009) 12 SC (Pt.1) 135 at 165 NNB PLC vs. Denclag Ltd. (2005) 4 NWLR (Pt.916) 549 at 582, Okafor vs. Nweke (2007) 10 NWLR (Pt.1043) 52.”
It is against the backdrop of the cases thus cited that, that Chief Afe Babalola SAN & Co” and “Rotimi Aladesanmi though eminent legal firms who purportedly signed the Original processes before the lower Court, did so in vain rendering the entire Originating process invalid, incompetent and a complete nullity. This much was asserted by the Supreme Court in the case of Okarika vs. Samuel (supra) that:-
Once an originating process be it writ of summon, or Notice of appeal is not signed or authenticated either by the litigating party or the Legal Practitioner on his behalf, then the processes is invalid and the jurisdiction of the Court is ousted. The defect is taken as incurable and the process signed in the name of a Legal Firm would not suffice.”
This apparently is the state of the law, eminently recognized and conceded to by all the parties.
For emphasis, the Originating processes in suit No: ID/1133/95 as filed by the appellant being incompetent the trial Court was wrong to have proceeded and to have entertained the suit. My view is that the appellant’s suit qualified to have been
struck out for being incompetent and I so hold. For emphasis, I make reference to the recent decision of the Apex Court in the case of Kente vs. Ishaku (2017) 15 NWLR (pt. 1587) 94 @ 118, where it was stressed that:
“The validity of originating process in a proceeding, like the originating summons, writ of summons or notice of appeal, is the sine qua non for the competence of the proceedings that follows it, or that is initiated by such process, see Madukolu vs. Nkemdilim (1964) 3 NSCC 374 @ 379 – 380. Consequently, failure to commence a suit or appeal with a valid originating process is a fundamental error. It goes to the root of the action or appeal since the conditions precedent for the exercise of the Court’s jurisdiction would not have been met to place the suit or appeal before the Court for the exercise of its jurisdiction to hear and to determine the issues in the action or the appeal. See Kida vs. Ogunmola (2006) 13 NWLR (pt. 997) 377; Braithwaite vs. Skye Bank Plc (2012) LPELR 75532 SC.”
The nagging issue to my mind, which agitated the appellant appears to be the judgment of the lower Court granted to the 1st and 4th Respondents on the counterclaim, filed in the statement of defense and counterclaim. The argument of the appellants being that the voidness of the purported suit which the Appellant’s assumed they had instituted before the lower Court, which is definitely not in dispute, the effect of the proceedings and judgment of the lower Court granted in favor of the 1st – 4th respondents, generated the instant appeal. In other words, the appeal raises the question, whether the judgment obtained in the counter claim, is also liable to be struck out on account of the incompetence of the writ of summons and statement of claim filed by the appellants. The fact that a counterclaim is a distinct action by the defendants against the plaintiff with its independent and separate life from the main claim, and with a distinct existence, as stated by Tobi JCA in Peterside vs. IMB (Nig) Ltd (supra),alongside so many numerous decisions, is so established in our jurisprudence, and can indeed stand even where the main claim is withdrawn, dismissed or struck out.
The learned counsel for the appellant seems to agree with the legal position exposed in the authorities cited, but argued that the cases cited failed to address the present situation, with regards to a void originating process, upon which the statement of defense and the counterclaim originated therefrom. He forcefully argued that the originating process being void, the respondents instead of the counterclaim, which is left hanging ought to have been filed afresh. He insists that with the writ founding the action a nullity, the counterclaim which draws its breath of life from same, ought also follow suit and be struck out. The critical question this Court must contend with is, whether the originating process said to be flawed, void and regarded as not to be reckoned with, and which qualifies to be struck out, automatically affects the counter-clam filed, in response to the writ and statement of claim when all we have from the claimants is a null document? I think the appellants have a point there. I have been referred to a decision of this Court in the case of Dimacon Industries Limited vs. Mr. Olayiwola Ajayi-Bembe(unreported) with Appeal No. CA/L/421/2013, delivered on the 19th day of May, 2017, where Georgewill JCA reasoned that:
“One would not have to consider a claim to see if a counter claim is valid or meritorious. A counterclaim has its own pleadings too. In like manner one would not need to consider a counterclaim to determine if a claim is competent or meritorious. Both are like the rivers Niger and Benue, which like the principle of law and equity flow in the same stream but their waters will never mix.”
In agreeing with the position taken in the lead judgment, Ogakwu JCA, stated that:
“The pith of the contention in this appeal is whether the hearing of a counterclaim can be proceeded with when the main claim is aborted in the circumstances stipulated in Order 17 Rule 11 of the rules of Court. As has been clearly demonstrated in the leading judgment, even though the words employed in the rules of Court are stayed discontinued or dismissed, the striking out of the main claim, particularly on the application of the claimant is akin to discontinuing the claim.”
The clear implication of the reasoning of my brothers is invariably in line with the decision in Peterside vs. IMB (Nig) Ltd (supra), which is to the effect that even where the claimants claim is discontinued, the counterclaim
subsists, upon the simple reasoning that a counterclaim is an independent action, being a cross action and therefore the fact that the main claim is discontinued or withdrawn, cannot and do not affect the prosecution of the counterclaim. The stand of the Courts with regards to the uniqueness of a counterclaim, can be clearly seen from the decisions of Obolo & Ors vs. Ilukoyenikan & Ors (2013) LPELR – 20324 (CA) per Kekere-Ekun JCA, (As he then was) Susainah (Trawling Vessel) & Ors vs. Abogun (2007) 1 NWLR (pt. 1016) 456, Beloxxi & Co. Ltd vs. South Trust Bank & Ors (2012) LPELR-8021 (CA) and Alaya vs. Isaac (2012) LPELR-9306 (CA), it has been argued that in the instant case, where a purported writ and statement of claim was filed, consequent upon which the counterclaim was filed, and the writ and statement of claim having been conclusively adjudged as being incompetent by reason of the wrong signing of the processes, the counterclaim which though came into existence in response to the void writ, by its very nature of being a process independent of the writ filed, is said to have a different existence from the void writ. The other contention is that the writ of summons and the statement of claim being void, the counterclaim filed alongside the void originating process is similarly void having been predicated upon a void process. I believe that Adumein JCA, in the case of Integrated Merchants Limited vs. Osun State Government and Anor. (2011) LPELR 8803 (CA), faced with a similar situation, appreciated the situation, by saying that:
“in ordinary civil suits, a writ of summons is the foundation or substratum of a law suit where it is required to be commenced by a writ of summons.
It is on the writ of summons, that all other processes statement of claim, statement of defense, counterclaim, reply, motions and all interlocutory processes are laid. Where the writ is defective, incurably defective, the foundation of the suit is gone, and there is nothing upon which other processes in the suit can stand.”
Indeed the Supreme Court in the case of Alhaji Tajudeen Hamzat vs. Alhaji Ireyemi Sanni (2016) 21 WRN 77 @ 99 per Odili JSC, stated that, where a statement of claim is not valid, as in the instant case, no issues can be joined upon the invalid pleadings, and in our case, the none existent pleadings. In the case of Dimacon Industries Limited vs. Mr. Olayiwola Ajayi-Bembe (unreported) in Appeal No. CA/L/421/2013, delivered on the 19th of May, 2017, which I took pains to comprehend, I understood the reasoning in the judgment, as stating that:
“what then is the legal implication of such an application by a plaintiff asking the Court below to strike out its own claim? in my view, it is no more than an application to discontinue or withdraw the claim against the respondent at a stage when the appellant can no longer discontinue or withdraw its claim on its own without the imprimatur of the Court below authorizing and sanctioning the discontinuance or withdrawal by way of a striking out.”
I totally agree with the position of the law exposed therein. There is no argument to the fact that the striking out of a main claim, particularly upon the application of the claimant is akin to a discontinuance of the claim, and a counterclaim being a separate and independent action by a plethora of decisions, can proceed, when the main claim is struck out. My humble view upon a solemn consideration of the case at hand however appears to me that the facts of this case are slightly at variance with the facts of the case just highlighted. I anchor my observation on the fact that in the instant case from which the appeal originated, both the writ of summons and the statement of claim were void, all being in breach of the principle established in Okafor vs. Nweke (supra). It is also on those void processes that the trial Court proceeded to hear and to determine the claim and the counterclaim. The learned counsel for the appellant to my mind is on the right footing, when he asserted that the factual and legal impossibility of a person purporting to file a defense/counterclaim or any process whatsoever to a claim that is void, cannot have any support in law. This assertion finds support in the case of Alh. Tajudeen Babatunde Hamzat vs. Alh. Ireyemi Sanni (2016) 21 WRN 77 @ 99. Indeed Eko JSC in the case of Kente vs. Ishaku (supra), emphasized that:
“it cannot be overemphasized that unless the action or appeal was initiated in accordance with the due process of law, which includes its commencement by or with a valid initiating or originating process, it is incompetent. See Madukolu vs.
Nkemdilim (supra). The proceeding in such action or appeal remain a nullity ab initio no matter how well the proceedings were conducted. See Timitimi vs. Amabebe (1953) 14 WACA 374. Courts do not exercise their given jurisdiction in futility.”
My humble but firm stand is that there being no valid writ or statement of claim to respond to the filing of a statement of defense and counterclaim pursuant to the void processes cannot be maintained, since there were no issues to be joined on. See the cases of Cotecna Int’l Ltd vs. Churchgate (Nig.) Ltd (2010) 18 NWLR (pt. 1225) 346, Broad Bank (Nig) Ltd vs. ZamoGas (Nig) Ltd (2011) LPELR 3892 (CA). This Court in the case of Aina Modupe Jeje vs. Enterprise Bank Ltd and Ors (2015) LPELR 24829 (CA), per Lokulo-Sodipe, stated;
“What a counter claim is and its attributes are settled in law. Counterclaim is a claim for relief asserted against an opposing party after an original claim has been made; that is a defendants claim in opposition to or as a set off against the plaintiffs claim. it is not only a claim by the defendant against the plaintiff in the same proceedings, but it is regarded as an independent and separate action in which the defendant and counterclaimant is in opposition of the plaintiff in the same proceedings.”
To insist that the counterclaim in the circumstance can be prosecuted, when there is no writ or statement of claim originating the action, amounted to initiating a claim by way of a counterclaim, as against the four known methods of Commencing an action, to wit, writ of Summons, originating summons, originating motion and petition. Obviously the cases cited by the three set of respondents to the effect that a counter claim is a distinct action from the main claim, and can rightly be proceeded with, even where the main claim is withdrawn, struck out or dismissed, must be understood in the circumstance of the cases in which they were determined, and are inapplicable to the instant case. I therefore find myself in agreement with the appellant, that the counterclaimant against the backdrop of there being no valid processes originating the action before the lower Court ought to have proceeded and to have filed a distinct action seeking for the reliefs enumerated in the ill-fated counterclaim. I also agree with the appellants that the consequence of a void act is that the act never occurred in the first place, and therefore any rights, privileges or sanctions premised on the void act, cannot command any legal backing, as the entire judgment amounted to a nullity for which the lower Court lacked the jurisdiction to entertain. The sole issue canvassed by the appellant and responded to by the three set of respondents is determined in favor of the appellant.
In the result, the judgment of the lower Court in its entirety being a nullity, the invalid claim as well as the purported cross action or counterclaim are deservingly struck out, as the counter claim cannot exist, where there is no patent and valid claim to anchor its initiation. The appeal succeeds and it is hereby allowed by me. The decision of Akande C.J, delivered on the 5th day of June, 2012 is hereby set aside being a nullity in its entirety. Parties are at liberty to file their plaint appropriately to be determined before the State High Court. I make no order as to costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the Judgment just delivered by my learned brother, HAMMA AKAWU BARKA, JCA. I agree with the reasoning and conclusion and I too allow the Appeal as being meritorious.
Indeed, my learned brother painstakingly dealt with the Issues at stake in this Appeal. The most crucial being whether a counter claim could nevertheless be sustained where the writ of summons which originated the claim is found to be defective.
I join my learned brother to answer that question in the negative. My reason for so doing is that in a plethora of cases including OKAFOR VS. NWEKE (2007) 10 NWLR (PT.1043); EZE VS. OKECHUKWU (2015) 10 NWLR (PT. 1467) 307 AT 320 AND SLB CONSORTIUM LTD VS. NNPC (2011) 9 NWLR (PT.1252) 317 the Apex Court emphasised that the defect created in a originating process which is not signed by a legal practitioner goes to jurisdiction. If it does, then the counter – claim which arose as a result of the Plaintiffs claim cannot stand because as a matter of action, the Counter Claim is dependent on the Plaintiffs claim.
A Counter – Claim on the other hand is said to be a separate and independent claim, not as a matter of action but in relation to proof and distinct treatment in adjudication. A Counter-Claim is a separate and independent Claim in the same action with the Plaintiff’s Claim.
Thus the above rule of Law which treats the Counter- Claim as a separate and distinct claim, does not save the Counter Claim when the Court is deprived of jurisdiction to entertain the main claim.
For this reason and the fuller reasons given in the Judgment of my learned brother BARKA JCA. I also allow the Appeal.
I abide with the Order as to Costs.
CHIDI NWAOMA UWA, J.C.A.: I agree with the judgment of my learned brother, HAMMA AKAWU BARKA, JCA. I abide with the order made as to costs.
R. A. Aladesanmi, with him, A, Denira, Yemesi Onanubi and Amaoru Ebiere-For Appellants
A. A. Osara for 1st -4th Respondents.
Ayodeji Ogunlana for 6th Respondent.
A. O. Muheeb for 7th Respondent.-For Respondents