R. A. OLIYIDE & SONS LIMITED v. OBAFEMI AWOLOWO UNIVERSITY, ILE-IFE (2018)

                                                                     

In The Supreme Court of Nigeria

On Friday, the 9th day of February, 2018

SC.357/2001

Before Their Lordships

OLABODE RHODES-VIVOURJustice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILIJustice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYIJustice of The Supreme Court of Nigeria

AMIRU SANUSIJustice of The Supreme Court of Nigeria

SIDI DAUDA BAGEJustice of The Supreme Court of Nigeria


Between

R. A. OLIYIDE & SONS LIMITEDAppellant

AND

OBAFEMI AWOLOWO UNIVERSITY, ILE-IFERespondent

……………………. A ……………………..

CLARA BATA OGUNBIYI, J.S.C. (Delivering the Leading Judgment): The appeal herein is against the judgment of the Court of Appeal, Ibadan Judicial Division delivered on 15th February, 2001. By the aforesaid decision, the lower Court held that, the plaintiff’s suit was incompetent and was accordingly struck out.

The Appellant herein, being dissatisfied with the judgment of the Court of Appeal, sought and obtained leave of the said Court and appealed against the judgment thereof.

FACTS RELEVANT TO THE APPEAL
The Appellant was the plaintiff at the High Court. It filed an action against the Respondent who was Defendant, seeking for declarations and monetary claim for breach of contract arising from a contractual relationship which hitherto existed between the Plaintiff and the Defendant.
In the course of proceedings before the trial Court, plaintiff/appellant amended its statement of claim. The defendant filed an original statement of defence denying the claim of the plaintiff. However, in the course of proceedings, defendant amended its statement of defence, hence an amended statement of defence was filed. The plaintiff replied to the defence filed by the defendant.
Upon being served with the Writ of Summons and Statement of Claim, the defendant without filing any defence, moved the Court vide an application challenging the competence of the plaintiff’s suit. The said application was duly argued and dismissed. It is not out of place to mention that the application filed by the defendant was anchored on a complaint that no pre-action notice was issued and served on the defendant before the filing of the action.
Being dissatisfied with the ruling dismissing the preliminary objection, Defendant/Respondent filed an appeal against that decision. The appeal was abandoned and was not pursued by the Defendant.
In proving its case, plaintiff called three witnesses and tendered various documentary evidence admitted as exhibits. Defendant on its part called four witnesses and also tendered documentary evidence which were admitted as exhibits.
The learned trial Judge, after taking addresses of counsel to the parties delivered its judgment whereby it found for the plaintiff.
Being dissatisfied with the judgment delivered on 22nd January, 1996, Defendant/Respondent filed its notice of appeal against that decision. It is instructive to state that the notice of appeal as stated thereon was filed against the decision delivered on 22nd January, 1996 and no other decision i.e. to say it had nothing to do with the ruling delivered on 16th January, 1995. Also at the lower Court, the appeal filed against the decision of 16th January, 1995 was not consolidated with the appeal filed against the judgment delivered on 22nd January, 1996.
Furthermore, in considering the appeal filed before it, the Court of Appeal limited its consideration to the validity of Exhibit T (pre-action notice) tendered by the parties and held that, that notice did not satisfy the requirement of Section 46 of the Obafemi Awolowo University Act, as to issuance and service of pre-action notice.
The appellant being dissatisfied with the judgment of the Court of Appeal, obtained leave of that Court and consequently filed an appeal to this Court.
…………………….B ……………………..
In compliance with the Rules of Court, briefs were exchanged by all parties in the following terms:
1) Appellant’s Amended Brief of Argument filed on the 23/6/2016 but deemed properly filed on 3/10/2017 was settled by Tunde Babalola Esq.
2) Respondent’s Brief of Argument filed 15/2/2017 but deemed properly filed also on 14/11/17 was settled by Chief Akin Olujimi, SAN.
3) Appellant’s reply Brief of Argument filed 26/9/2017 but deemed properly filed on 14/11/17 was further settled by Tunde Babalola Esq.
On the 14/11/17 when the appeal came up for hearing, counsel adopted and relied on their respective briefs of arguments. The learned counsel for the appellant urged in favour of allowing the appeal, while the counsel representing the respondent urged that the appeal should be dismissed for want of merit.
The five issues formulated on behalf of the Appellant are as follows:
1. Whether in the eyes of the law and by the incompetent Brief of Argument filed by the Respondent at the lower Court, the Respondent herein (the Appellant at the Court of Appeal) had abandoned its appeal at the lower Court which robs the lower Court of the requisite jurisdiction to hear and determine the appeal before it, ab initio (Ground 1).
2. Whether the learned Justices of the Court below breached the Appellant’s right to fair 
hearing when it failed to determine the issue properly raised and canvassed before it with respect to the incompetence of Ground 1 of the Respondent’s Notice of Appeal filed and maintained on 9th February, 1996 before the lower Court (Ground 2).
3. Whether the Defendant/Respondent raised any competent question of pre-action notice to warrant its consideration by the Court below. (Grounds 3, 4, 5 and 7).
4. Whether Exhibit ‘T’ satisfied the requirement of a valid pre-action notice. (Grounds 4 and 6).
5. Whether the learned Justices of the Court below were right in failing to consider the merit of the case before it. (Ground 6).

On behalf of the Respondent, however the following three issues were considered as relevant and adequate for the determination of this appeal:
(i) Whether the appeal before the lower Court was incompetent as to invalidate the judgment of the lower Court in favour of the respondent- covers Ground 1
(ii) Whether the lower Court properly considered the issue of the competence of this suit raised by the respondent based on the failure of the appellant to serve Proper pre-action notice as required by Section 
46(1) of the Obafemi Awolowo University Act – covers Grounds 2, 3, 4, 5, 7 and 8.
(iii) Whether in the light of the findings of the lower Court that the purported pre-action notice issued by the appellant was invalid and incompetent thereby rendering the suit based on it incompetent, the failure to consider the merit of the suit has caused the appellant any miscarriage of justice – covers Ground 6.

For the determination of the 1st issue to this appeal, the appellant’s counsel had drawn our attention to the appeal filed by the Respondent herein at the lower Court. The said respondent was the appellant before that Court. It is the contention of the appellant’s counsel herein that the respondent abandoned its appeal at the lower Court on the account of its brief of argument.
For the just clarification of the point raised by the learned counsel for the appellant at paragraph 1.03 of its Amended Brief of Argument, copious and thorough reference would be made to the record of appeal and specifically at pages 268 to 281 being the appellant’s Brief.
I have considered carefully, the said brief of argument filed by the respondent, who was the appellant before the lower Court. The observation in my view reveals that the brief filed by the respondent who was the appellant at the lower Court was signed on its behalf.
……………………. C ……………………..
Put differently, although the respondent claimed that the brief it filed as appellant at the lower Court, was authored by Chief Olujimi, SAN, the appellant herein, however holds a different opinion.
The entire argument by the appellant in its issue 1 is anchored on the submission that the lower Court acted without jurisdiction when it allowed the appeal of the Respondent, (Appellant at the Court of Appeal), when there was no competent brief before it.
The respondent at paragraph 4.8 of its brief of argument restates the misconception conceived by the appellant who alleges an irregularity on the non-signing of the brief of argument. The contention, counsel submits has no foundation and is without any basis.
It is not the case of the appellant, respondent argues, that the brief in question was signed by a firm or that Chief Akin Olujimi, SAN, who the appellant admitted authored the brief , is not a legal practitioner recognized by law; that there is therefore no doubt as to the identity of the legal practitioner behind the process or to whom the process may be traced.
The pertinent question to ask at this juncture and as rightly posed by the appellant is:- Did a Legal practitioner or the learned silk himself sign the contested process?
I seek to state that for all intents and purposes, the central thread that runs through the respondent’s issue 1 is that the counsel has not denied that he did not sign the appellant’s Brief at the lower Court. In fact he did admit that it was unsigned by him and impliedly admitted that it was signed on his behalf by on unidentified proxy. Reference to substantiate can be made to paragraphs 4.5 and 4.8 of the respondent’s brief which are reproduced hereunder:-
Paragraph 4.5
“It will only mean that Chief Akin Olujimi, SAN who authored the brief in question, as admitted by the appellant, did not sign the brief. It has long been settled by the Supreme Court that the failure to sign a process…….”
Paragraph 4.8
“It is observed that the appellant at paragraph 4.05 to 4.07 of its brief has characterized the alleged irregularity of the non-signing of brief in question by Chief Akin Olujimi, SAN who admittedly authored it……..”
The law is trite and well settled that what is admitted needs no proof. See the case of Ehinlawo V. Oke (2008) 16 NWLR (Pt. 1113) 357. Since the Respondent has not denied that he did not sign the Brief but rather admitted that it was unsigned by him, it then becomes unnecessary for the appellant to provide further evidence in order to prove this issue, as wrongly contemplated by the respondent. It follows therefore that all the submissions on behalf of the Respondent, in respect of the need to provide further evidence and also regarding raising of a fresh issue, should in the circumstance be disregarded and discountenanced.
An issue of jurisdiction (like the one at hand) is not a fresh issue and it is settled law that such can be raised at anytime by various means even viva voce for the first time on appeal in this Court. See Anyanwu V. Ogunewe & Ors (2014) LPELR 22184 (SC).

……………………. D ……………………..
Hence and as rightly submitted by the learned counsel for the appellant, the submission by the respondent’s counsel at Paragraph 4.5 of their brief of argument, is grossly misconceived, wherein he said that failure to sign a process is only an irregularity that will not vitiate the process except it has occasioned a miscarriage of justice.
It followed that all cases cited by the respondent on this point are therefore irrelevant and inapplicable. They are in fact against the respondent. Further still, the non-signing of the Brief by a legal practitioner in the Court below is an issue of jurisdiction that can be raised at any time.
Thus, all the submissions by the respondent’s counsel and cases cited by him alleging appellant having consented to the unsigned Brief, Waiver of right, no miscarriage of justice, appellant has not suffered any injustice e.t.c are irrelevant because the complaint relates to an issue of jurisdiction. Hence the cases of Famfa Oil Ltd V. A.G. Federation (2003) 18 NWLR (Pt. 852) 453 at 467 SCC (Nig) Ltd V. Elemadu (2005) 7 NWLR (Pt. 923) 28 at 80 and Anyanwoko V. Okoye (2010) 5 NWLR (Pt. 1188) 497 at 519 are all inapplicable.
It goes without say therefore that what is relevant at this point is not a question of whether or not the appellant has suffered any injustice as wrongly contemplated by the learned counsel for the respondent. The importance of this case is that it is jurisdictional, which the law allows can be raised of any time, even for the first time in this Court.
At Paragraph 4.5(iii) of the respondent’s brief of argument, reference was made to the Court of Appeal case of A.C.B. Plc V. Haston (Nig) Ltd (1997) 8 NWLR (Pt. 515) 110 at 127. The learned counsel subscribes to the view held by the Court that the failure of counsel to sign pleading would not invalidate the process and that the appellate Court would not allow technicality to prevent the flow in the wheel of justice; that the alleged failure to sign the respondent’s brief in the lower Court, even if established does not go to the jurisdiction. In other words that it is not jurisdictional.
I seek to restate at this juncture further that the respondent’s counsel in support of his argument, cites the case of Anyanwoko V. Okoye (2010) 5 NWLR (pt. 1188) 497 at 514.

In that case, the facts disclosed that the suit was commenced at the trial Court by originating summons and there were objections inter alia that it was not commenced in accordance with the prescribed rules of Court since the
claim was contentious and involved substantial disputes, thus originating summon was inappropriate. Hence the Court lacks jurisdiction to hear the case.
This Court, while considering the objection that the suit was not commenced in accordance with the prescribed rules of Court held at pages 513 and 514 of the lead judgment and said:
“With respect to the first issue, the first ground of the objection is that the summons was not signed by the Registrar of the Federal Capital Territory High Court as required by Order 6 Rule 8 of the Rules of that Court and that by reason of the aforesaid non-signing no summons was, in law, issued. Order 6 Rule 8 provided that:
“An originating summons is issued upon its being signed by the Registrar or other officer of the Court duly authorized to sign the summons.”
It is not contested that the originating summons was not signed by the Registrar of the Court as enjoined by Order 6 Rule 8 of the Rules of the Court and therefore a breach of the Rules. What, however, is the legal effect of this breach?
In Clement V. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39 at 50 this Court per Oputa, JSC articulate 
this principle when he declared:
……………………. E ……………………..

“I think it is trite law that Rules of Court are rules of procedure. They do not by themselves and themselves alone confer jurisdiction. They merely regulate the exercise of jurisdiction conferred aliunde.”
“It is untenable therefore for the appellant to contend that the breach of the provisions of Order 6 Rule 8 of the Rules of Court robbed the Court of any jurisdiction. The jurisdiction of a Court donated either by the Constitution or by the statute remains unaffected by breaches of Rules of Court. The sustained challenge of this issue of jurisdiction founded on the breach of Order 6 Rule 8 of the Federal Capital Territory High Court Rules was, with respect, grossly misplaced, not worth the time and trouble of the Court and even counsel for the parties.”

It is clear that Order 6 Rule 8 of the Rules of the High Court Federal Capital Territory Abuja was being interpreted in that case. The said Rule dealt with non-signing of the originating summons by the Registrar or other officer of the Court before issuance. And it was upon the breach of this Rule that this Court held that the breach of that Rule does not rob the Court of any jurisdiction. It is settled that cases remain authorities only for what they decided.
See the case of Ugwuanyi V. Nicon Ins. Plc. (2013) 11 NWLR (Pt. 1366) pg 546 at 604.

It is obvious as rightly submitted by the learned counsel for the appellant that the case under reference is inapplicable to the instant case because apart from the fact that it is not a Registrar or officer of the Court that is involved herein, the issue at hand is also not related to a breach of a Rule of Court but a breach of the Legal Practitioners Act, which has been interpreted in several decisions of this Court. As stated in the Appellant’s Brief, a Legal Practitioner must sign all processes filed in Court by himself and an unknown Proxy who is not a Legal Practitioner cannot sign on his behalf.
The pertinent question, which I had asked earlier in the course of this judgment, is, Did a Legal Practitioner or the learned silk himself sign the contested process? The respondent himself has admitted the answer to the question is in the negative. Hence the respondent is therefore approbating and reprobating by supporting this arguments at Paragraph 4.8(ii).
It is well settled principle of law that counsel should not approbate and reprobate. See Akaninwo V. Nsirim (2008) All FWLR (Pt. 410) 610 at 663 wherein this Court per Tobi, JSC made the following Pronouncement thus:
“A litigant should not be allowed to speak at the same time or the same moment from the two sides of his mouth. He can only be allowed to speak from one side of the mouth at the same time or the same moment. He cannot make a case in his pleadings and suddenly change or reverse position to make a different case. A party cannot by his complete state of mind make an admission and later decide to change it by an amendment.”
I seek to restate further that as contemplated by the appellant’s counsel, the context within which their amended brief of Paragraph 4.07 was stated relates to the failure to file a Brief. Counsel confers copiously to Order 18 Rule 10 of the Court of Appeal Rules, 2011 which lays down the consequences of the failure in filing a brief of argument, in other words, it will result in dismissal of the appeal.
It follows that the submissions by the Respondent’s counsel on waiver e.t.c. also the reliance on Order 20, Rule 5 have both missed the point and spring from a faulty foundation.
Furthermore and to buttress the point further, it is a matter of law to stress emphatically that the issue of non signing of the appellant’s Brief by a Legal Practitioner is jurisdictional. The law is trite and elementary that an issue of jurisdiction cannot be waived. As stated earlier, it is not an irregularity and can be raised at any time, even for the first time in this Court as held severally.
Consequently, the submission by the Respondent’s counsel at Paragraph a.8(iii) of its brief is discountenanced as misconceived. That is to say the reliance on Order 18 Rule 10 of the Court of Appeal Rules, 2011.
The law is again well settled that on appeal, this Court is empowered by Section 22 of its Act to do what the lower Court should have done. See the case of Agbakoba V. INEC(2008) 18 NWLR (Pt. 1119) 489 wherein it was held that:
“The invocation of the power of this Court under Section 22 of the Supreme Court Act, is to make any orders the Courts below are empowered to make. See Dantata & Anor. V. Mohammed (2000) 5 SC 1: (2000) 7 NWLR, (Pt. 664) 176) at 200″ per Chukwuma-Eneh, JSC.
……………………. F ……………………..

The said issue 1 is resolved therefore in favour of the appellant. In other words, the lower Court acted without jurisdiction when it allowed the appeal of the Respondent based on an incompetent Brief of argument.
In the eyes of the law, the Respondent herein abandoned its appeal at the lower Court because it (the appellant at the lower Court) did not have a competent Brief of argument before the Court; the lower Court in the result acted without jurisdiction when it allowed the appeal of the respondent based on an incompetent Brief of argument. The Respondent’s Brief (appellant at the lower Court) was signed by a proxy unknown to law.
Accordingly, this issue is resolved in favour of the appellant herein, and thus determine this appeal in limine without having to consider the other issues raised. As a consequence, I hereby set aside the decision of the Court of appeal for want of jurisdiction having relied upon an incompetent appellant’s brief in arriving at its decision.
As a result and in totality, I therefore allow the appeal on the said 1st issue only. I further set aside the decision of the lower Court and affirm that of the trial Court by invoking Section 22 of the Supreme Court Act.
Appeal is determined on the 1st issue only and is hereby allowed in terms of the order made supra.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment of my learned brother Clara Bata Ogunbiyi JSC. I agree with it and for the reasons given I too allow the appeal, set aside the decision of the Court of Appeal and affirm the judgment of the trial Court.
Appeal allowed.
MARY UKAEGO PETER-ODILI, J.S.C.: My learned brother, Clara Bata Ogunbiyi graciously obliged me with the draft of the judgment just delivered which decision I agree completely with. To register my support, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal, Ibadan Division (Coram: Onalaja, Adamu JJCA and Adekeye (JCA (as she then was) wherein the Court of Appeal or Court below or Lower Court held that the plaintiffs suit was incompetent and was accordingly struck out.
The background facts are set out clearly in the lead judgment and I shall not repeat them herein except for when the need to utilize and refer to any part arise.
On the 14th day of November 2017 date of hearing, learned counsel for the appellant, Tunde Babalola adopted the amended brief of argument filed on 23/6/2016 and deemed filed on 3/10/17 and a reply brief filed on 26/9/17 and deemed filed on 14/11/17. In the brief of argument were identified five issues for determination which are thus:
1. Whether in the eyes of the law and by the incompetent Brief of Argument filed by the respondent at the lower Court, the respondent herein (the appellant at the Court of Appeal) had abandoned its appeal at the lower Court which robs the lower Court of the requisite jurisdiction to hear and determine the appeal before it, ab initio. (Ground 1).
2. Whether the learned justices of the Court below breached the appellant’s right to fair hearing when it failed to determine the issue properly raised and canvassed before it with respect to the incompetence of Ground 1 of the respondent’s Notice of Appeal filed and maintained on 9th February 1996 before the lower Court. (Ground 2).
3. Whether the defendant/respondent raised 
any competent question of pre-action notice to warrant its consideration by the Court below. (Grounds 3, 4, 5 and 7).
4. Whether Exhibit “T” satisfied the requirement of a valid pre-action notice. (Grounds 4 and 5).
5. Whether the learned justices of the Court below were right in failing to consider the merit of the case before them (sic). (Ground 6).

For the respondent, learned counsel, Olumide Olujinmi Esq., adopted its brief of argument filed on 15/2/2017 and deemed filed on 14/11/17 and raised three issues for determination which are as follows:
1. Whether the appeal before the lower Court was incompetent as to invalidate the judgment of the lower Court in favour of the respondent. (Ground 1).

……………………. G ……………………..

2. Whether the lower Court properly considered the issue of the incompetence of this suit raised by the respondent based on the failure of the appellant to serve proper pre-action notice as required by Section 46 (1) of the Obafemi Awolowo University Act. (Ground 2, 3,4,5,7 and 8).
3. Whether in the light of the finding of the lower Court that the purported pre-action notice issued by the appellant was invalid and incompetent 
thereby rendering the suit based on it incompetent, the failure to consider the merit of the suit has caused the appellant any miscarriage of justice. (Ground 6).

The issue 1 of the appellant which the respondent in effect adopted is sufficient to determine this appeal and so I shall use it.
ISSUE 1:
Whether in the eyes of the law and by the incompetent brief of argument filed by the respondent at the lower Court, the respondent herein (the appellant at the Court of Appeal) had abandoned the appeal at the lower Court which robs the lower Court of the requisite jurisdiction to hear and determine the appeal before it, ab initio.

Learned counsel for the appellant submitted that indeed an unknown person penned the signature for Chief Akin Olujinmi SAN which means it was that of an unknown proxy in the brief of argument at the Court below which the law does not recognise thereby rendering the process incompetent. He cited S.P,D,C.N. Ltd v Ekosi (2016) 2 NWLR (Pt.1496),278 at 287.

The ensuing implication being that the respondent herein who was appellant in the lower Court had abandoned its appeal and the consequence should be a dismissal of the appeal. He cited Macfoy v UAC (1962) AC 152 at 160; Order 18, Rule 10 of the Court of Appeal Rules; Governor of Zamfara State v Gyalange (2013) All FWLR (Pt.658) 821 at 836.

Learned counsel urges this Court to resolve the issue in favour of the appellant herein and determine this appeal by setting aside the decision of the Court of Appeal and affirm the decision of the trial Court by invoking Section 22 of the Supreme Court Act.
In response, learned counsel for the respondent stated that the failure to sign the brief of argument was only an irregularity that would not vitiate the process unless it is shown that it occasioned a miscarriage of justice and jurisdiction not lost. He referred to Famfa Oil Ltd v A. G. Federation (2003) 18 NWLR (Pt.852) 453 at 467; S. C. C. (Nig.) Ltd v Elemadu (2005) 7 NWLR (Pt. 923) 28 at 80; Anyanwoko v Okoye (2010) 5 NWLR (Pt.1188) 497 at 519.
That the appellant lost the right to complain since it did not act to have that irregular process normalised and so cannot do so now.
The stance of the appellant is that the respondent as appellant in the Court of Appeal had not had its brief of argument properly signed as it was thus. “F: Chief Akin Olujinmi SAN” and so the appeal ought to have been dismissed. The respondent’s counter re-action is that appellant had not raised that issue at that lower Court and cannot now bring it for a visitation. Indeed it is now trite and well settled that an appellant will not be allowed to raise in the appellate Court an issue not raised in the Court below as it would be like changing the goal post at will which would have the effect of jeopardizing the interest of the other party which would lead to a miscarriage of justice as the ends of justice are not one sided but for both parties and the Court. See Ejiofodomi v Okonkwo (1982) 11 SC 30 at 46 – 47; Waniko v Ade – John (1999) 8 NWLR (Pt. 619) 401 at 412; Kano Textile Plc v G & H (Nig.) Ltd (2002) 2 NWLR (Pt.751) 420 at 449; Dweye & 2 Ors v Iyomahan & 3 Ors (19832) 8 SC 59 at 66.
……………………. H ……………………..

For emphasis, failure to have that brief of argument of the appellant in the Court below signed properly is an irregularity which will not vitiate the process except it is shown that the impropriety had occasioned a miscarriage of justice. In such a situation there was need for the prompt reaction from the now appellant that would have led to the regularization and this not having been done at that level, and the Court below going ahead to consider the merit of the appeal before it and delivering judgment, bringing up the issue now at this stage is asking more than this Court can grant since in effect the appellant is taken to have consented to the use of that irregular process. See Famfa Oil Ltd v A. G. Federation (2003) 18 NWLR (Pt.852) 453 a6 467; S. C.C. (Nig) Ltd v Elemadu (2005) 7 NWLR (Pt.923) 28 at 80.
This Court has succinctly stated the position in the case of Anyanwoko v Okoye (2010) 5 NWLR (Pt. 1188) 497 at 519.
“For where a party is aware of non-compliance or where a writ is defective it is the duty of the party to act timely to apply to strike out the suit before taking any further step in the proceedings. When the appellant noticed the surmised irregularity, he should have taken the necessary step to avoid being roped by what is often referred to as waiver which is defined in Black’s Law Dictionary, 5th Edition, as the unconditional or voluntary relinquishment of a known right; the renunciation, repudiation, abandonment or to surrender of some claim, privilege or the opportunity to take advantage of some defect, irregularity or wrong….. Perhaps, I should further say it that irregularity can certainly be waived.
If the beneficiary fails to raise objection timely he will be deemed to have waived his right….. In short, as the appellant failed to act instantly on the surmised irregularity pinpointed by her, she is deemed to have waived her right. She should not approbate and reprobate at the same time.”
The Supreme Court further held at pages 514 thus:
“It is untenable therefore for the appellant to contend that the breach if the provisions of Order 6, Rule 8 of the Rules of Court robbed the Court of any jurisdiction. The jurisdiction of a Court donated either by the Constitution or by Statute remains unaffected by breaches of Rules of Court. The sustained challenge of this issue of jurisdiction founded on the breach of Order 6, Rule 8 of the Federal Capital Territory High Court Rules was, with respect, grossly misplaced, not worth the time and trouble of the Court and even counsel for the parties.”
The background fact at the base of this appeal is the objection founded on Section 46 (1) of the Obafemi Awolowo University Act which stipulates thus:
“No suit shall be commenced against the university until at least three months after written notice of intention to commence the same shall have been served on the university by the intending plaintiff or his agent; and such notice shall clearly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims.”
In its ruling on the objection founded on Section 46 (1) of the Act, the trial Court at page 18 to 24, overruled the objection and held that the action was competent and properly brought under Section 46 (1) of the Obafemi Awolowo University Act.
The trial Court at page 22 lines 22 of the Record held as follows:
“As between the parties, there is no argument that Exhibit ‘A’ does not contain all that is required by law to constitute it a notice stipulated in Section 46 (1) of Obafemi Awolowo University (Transitional Provisions) Act to be given before an action is instituted.”
The Court of Appeal in considering the appeal held thus:
“After a cool calm view and consideration of the strict compliance of the pre-action notice set out in Section 46 (1) supra, I come to the irresistible conclusion as decided in; NNPC v CHIEF GANI FAWEHINMI & 4 ORS. supra that Exhibit T being letter of 3rd March 1992 did not pass the acid test of the provisions of Section 46 ( aforesaid). I therefore declare that the action commenced against appellant was incompetent, applying MADUKOLU v NKEMDILIM supra the Court lacked jurisdiction to adjudicate in this action.”
The Court of Appeal in reaching its decision had relied on a few of the judicial authorities which while recognising the impacting effect of an incompetent process had cautioned on the need for the party who would adversely be affected to act promptly in bringing up the issue so that the Court would deal with it promptly but if that party fails to do so and no miscarriage of justice in sight in the utilisation of that irregular process then the substance of the decision would not be jeopardized and it would stand. It becomes too late to bring it up, See the case of Mobil Producing (Nig.) Unlimited v LASEPA (2002) 18 NWLR (Pt.798) 1 at 30 where the Supreme Court stated as follows:
……………………. I ……………………..
There is no dearth of authorities as to the consequence of failure to serve a pre-action notice when such is made a condition precedent for the commencement of a suit. A suit commenced in default of service of a pre-action notice is incompetent as against the party who ought to have been served with a pre-action notice provided such party challenges the competence of the suit.”
The Court of Appeal should not have ended the matter before them as they did without entering into the merit, the irregularity in the process being one that could be rectified. Therefore, there is merit in this appeal which I also allow.
I abide by the consequential orders made in the lead judgment.
AMIRU SANUSI, J.S.C.: I had a preview of the Judgment prepared by my learned brother Ogunbiyi JSC, just delivered, I am at one with her reasoning and the conclusion arrived at that this appeal has merit and should be allowed. While allowing the appeal, I intend to make few comments on it, just for purpose if emphasis.
His lordship has ably summarised the facts of this appeal and the submission of learned counsel to the parties in the appeal and therefore it will be superfluous to repeat them here. In this discourse, I will restrict my comments to ISSUE No.1 raised in the appellant’s brief of argument which has to some extent, been captured in ISSUES No1 and 2 in the Respondent’s brief of argument. This is because the said Issue 7 formulated by the appellant, raised issue of jurisdiction of the lower Court to even entertain and determine the appeal in the absence of a valid or competent brief of argument filed by the present respondent who was the appellant in that Court below.
As Jurisdiction is regarded as the life wire or spinal cord of any appeal. I shall restrict my self to the competence of the appeal before the Court below when the appellant’s brief was confirmed not to have actually been signed by a legal practitioner. It is common ground among the parties’ learned counsel, that an unknown person penned the signature for Chief Akin Olujinmi SAN or to put it in another way, an unknown proxy purportedly signed the brief of argument filed at the Court below.
On this apparent anomaly, the appellant’s counsel advanced the argument that the said Brief filed before the lower Court was incompetent. He cited SPDCN Ltd vs Ekosi (2016) 2 NWLR (pt 1496) 278. Conversely, the respondent’s learned counsel held a different stance. He argued that the failure to sign the Brief of argument was mere irregularity which does not vitiate the process, since it was not shown that miscarriage of Justice was occasioned. He referred to the cases FAMFA OIL LTD vs A. G of the Federation (2003) 18 NWLR (Pt 852) 453 at 467. SCC (Nig) Ltd vs Elemada (2005)7 NWLR (pt 923) 28 at 80; Anyanwoko vs Okoye (2010) 5 NWLR (pt 1188) 497 at 579.
It seems to me that the issue at hand relates to non-signing of a process by a Legal practitioner which is purely a Jurisdictional issue, because no appeal can properly be placed an invalid or incompetent process. The respondent’s learned counsel’s stance is that the non-signing of the brief is merely a breach of the rules of Court which can be regarded as mere irregularity. I do not share that view of his. It is beyond violation of rules of Court. This is because the Legal Practitioners Act provides that all processes filed in Court must be signed by a known and named
legal practitioner as opposed to an unknown proxy who is obviously not a Legal practitioner known to law. In the case at hand, it has been confirmed, that neither any known legal practitioner nor Chief Olujinmi SAN, the learned silk who purportedly authored the brief of argument in question on behalf of the appellant at the Court below, (now respondent herein) had signed the Brief. The respondent herein, did not hold a contrary view in that regard either in his various contentions.
In that regard, I am inclined to agree with the appellant’s contention that the respondent’s brief (filed at the lower Court on behalf of the Appellant thereat) is invalid and incompetent. The non-signing of that Brief of argument of the appellant thereat, had therefore vitiated the Jurisdiction of the Court below to rely and act on it and determine the appeal before it, because in actual fact, there was no brief of the appellant and as such, no competent Brief of argument for it to rely on, hear and determine the appeal since its Jurisdiction is eroded for non-availability of a competent brief of argument filed by an appellant before it.
In the result, for these few comments and for the more detailed and fuller reasoning marshelled in the lead Judgment of my learned brother Clara Ogunbiyi JSC, which I entirely agree with and endorse, I also adjudge this appeal meritorious. It succeeds and is accordingly allowed by me. Appeal allowed
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Clara Bata Ogunbiyi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal is meritorious and it is hereby allowed. I abide by all the orders contained in the lead Judgment.

Appearances

Tunde Babalola, Esq. with him,
Bankole Abdullahi, B. Emenga, T. Ojo and F. Olanipekun, Esq.For Appellant

AND

Olumide Olujimi, Esq. with him, Antonio Balogun and Picano Ebikade, Esq.For Respondent

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