When Statement Of Claim Will Not Supersede Writ Of Summons

In the Supreme Court of Nigeria Holden at Abuja On Friday, the
22nd day of January, 2021

Before Their Lordships
Nwali Sylvester Ngwuta
John Inyang Okoro
Chima Centus Nweze
Ejembi Eko
Uwani Musa Abba Aji

Justices, Supreme Court
SC.254/201

Between

1. ADEKUNLE AJIBODE… … … … … … .. Appellants
2. KARIMU AJIBODE
3. CHIEF RAIMI AJIBODE
4. CHIEF M. A AJIBODE
5. JOHN AYINDE

And

1. DAUDA GBADAMOSI… … … … … … … … Respondents
2. PRINCE SADIRU OBALANLEGBE
3. YISA AKINBOYEDE
4. MURAINA ABATAN (For themselves and on behalf of Aidokun-Ogbo
Family of Ewupe)

(Lead Judgement delivered by Honourable Justice Nwali
Sylvester Ngwuta, JSC)

Facts

The Respondents commenced Suit No. HCT/72/1995 against the
Appellants by a Writ of Summons filed at the High Court of Ogun
State, seeking inter alia, a declaration that the 1st to 5th
Appellant are not members of or related to Adoku-Ogbo Family of
Ewupe, Otta, Ogun State. The Statement of Claim was amended three
times, and the final Amended Statement of Claim was filed on
25/4/2002. The 1st to 5th Appellant filed their Statement of
Defence. At the conclusion of the trial, the court granted two
reliefs in favour of the Respondents and dismissed the other
reliefs sought by them.

Dissatisfied with the judgement of the trial court, the
Appellants appealed to the Court of Appeal, which court allowed the
appeal. The appellate court affirmed the judgement of the trial
court, in respect of the two reliefs which the trial court granted
in part. Dissatisfied with the judgement of the Court of Appeal,
the Appellants appealed to the Supreme Court.

Issue for Determination

The following sole issue was determined by the Apex Court, in
respect of the appeal:
Whether the lower court had jurisdiction to sit on an appeal
emanating from the judgement delivered by the trial court, being a
matter that originated from a Writ of Summons signed by the law
office of Chief Toyer Coker & Co.

Arguments

Counsel for the Appellant submitted that the issue of
jurisdiction can be raised in any proceedings, even at the Supreme
Court, for the first time. He added that once the issue of
jurisdiction is raised, it must be resolved before any further step
is taken in the appeal. Relying on the decision in RAJI & ORS v
IPAYE (2003) 7 SCN 55 at 63, he urged the court to hold that
failure to raise the issue either at the trial court or the Court
of Appeal, will not deprive the Appellants of the right to be heard
on the issue of jurisdiction. Further, counsel relied on the case
of MADUKOLU v NKEMDILIM (1962) 1 All NCR 587, in support of his
position on when a court can assume jurisdiction in a matter. He
referred to pages 1 to 23 of the summons and the ex parte motion,
seeking approval of the trial court for the Respondents to
institute and prosecute the suit in a representative capacity.
Counsel emphasised that the said processes were signed by the law
firm of Chief Toye Coker & Co., which is not qualified under
Section 2(1) of the Legal Practitioner’s Act to sign legal
processes. He reproduced Section 2(1) of the Act and relied on the
decision in OKAFOR v NWEKE (2007) All FWLR (Pt. 368) 1016 at 1025 –
1027, in urging the court to dismiss the suit.

Responding to the submissions above, counsel for the Respondents
conceded that a threshold issue can be raised even on appeal to the
Supreme Court, and that the court has laid down condition for the
competence of a matter before it. The conditions include the case
coming before the court by due process of law, and upon fulfilment
of any condition precedent to the exercise of jurisdiction. He
relied on MADUKOLU v NKEMDILIM (supra) and SKEN CONSULT NIG. LTD v
UKEY (1981) 1 SC 6 at 36. Counsel also agreed with the doctrine of
stare decisis and the case of OKAFOR v NWEKE (supra), which was
followed in SLB CONSORTIUM LTD v NNPC (2011) 4 SCNJ 211. However,
he submitted that a judgement is an authority for what it decides –
EMEKA v OKADIGBO & 4 ORS (2012) 18 NWLR (Pt. 1331) 55 at 95- 97.
The two cases of OKAFOR v NWEKE (supra) and SLB CONSORTIUM LIMITED
v NNPC (supra) in which the Originating Summons and Amended
Statement of Claim were signed by the law firm of Adewale Adesokan
& Co., the objections were predicated on a breach of the rules of
court. He distinguished these cases by stating that in the instant
case, the ground of objection is not predicated on any rules of
court.

Counsel argued further that the Statement of Claim is part of
the originating process and when it is filed, it supersedes the
Writ of Summons and the content therein determine the jurisdiction
of the court to entertain the suit. He argued that the Statement of
Claim, which according to him, is part of the initiating process,
was signed by a legal practitioner. He urged the court to
distinguish the facts of this case from the fact of OKAFOR v NWEKE,
and arrive at a different conclusion from the referenced suit.

Court’s Judgement and Rationale

Deciding the sole issue, the Supreme Court held that the
original Writ of Summons tagged “General Writ of Summons,” was
issued by the law firm of Chief Toye Coker & Co. The Writ contained
an untrue statement to the effect that Chief Toye Coker & Co. of 6,
Ojugbele Street, Off Metun Road, Otta, Ogun State is a legal
practitioner for the Plaintiffs. Chief Toye Coker & Co. is not a
single Legal Practitioner as described in the Writ; rather, it
indicates a firm of legal practitioners.

Citing Section 2(1) of the Legal Practitioner’s Act, the Apex
Court held that “a person” as used in Section 2(1) of the Act means
a natural (not a juristic) person who must have satisfied the
condition precedent to call and must have been called to the Bar in
Nigeria; or admitted under special circumstances to engage in law
practice in Nigeria. The person referred to in the sub-section must
have been duly called to the Bar, and must have been enrolled at
the Supreme Court of Nigeria. Toye Coker & Co is not a person
contemplated in Section 2(1) of the Act.”
Regarding the submission of counsel for the Respondents that the
decision in OKAFOR v NWEKE (supra) and similar cases were decisions
on objections relating to breaches of rules of court, the Supreme
Court held that violation of an Act of the National Assembly is a
much more serious matter than a violation of the rules of court. A
party cannot waive the breach of a law made by the National
Assembly, and it is never late in any proceedings to raise the
issue of jurisdiction.

On the submission that the Statement of Claim, when filed,
supersedes the Writ of Summons, is not absolute in its
applications. It applies to the contents of the Writ of Summons and
if a new claim is contained in the Statement of Claim, the new
claim cannot be superseded for it is not part of the claim in the
Writ, and the Statement of Claim cannot supersede this part. More
so, if the Writ of Summons is filed, as in this case, in violation
of the Legal Practitioner’s Act and Ipso Facto null and void, the
time hallowed principle that the Statement of Claim superseding the
Writ of Summons will not apply. What purports to be a Writ of
Summons in this case became a nullity upon being filed; it could
not ignite the jurisdiction of the court and a purported process
filed pursuant to it does not fare better than the Writ.

Their Lordships held further that if the trial court lacked
jurisdiction to entertain the matter, it follows that the court
below had no jurisdiction to hear the appeal arising therefrom.
Jurisdiction of a court is donated to it by either the Constitution
or by a statute – MISS OLUCHI J. ANYANWAKO v CHIEF MRS. CHRISTY
O.N. OKOYE & 4 ORS. (2010) 1 SC (Pt. II) 30. The jurisdiction of
the court remains dormant, until the claim before the court ignites
it. If the claim has not been brought before the court by due
process, the claim cannot invoke the court’s jurisdiction, and the
court labours in vain in entertaining the suit. This is the case
here. The trial court lacked jurisdiction to entertain the suit,
and the court below didn’t have the competence to determine the
appeal arising from proceedings which are void.

Consequent upon the foregoing, the Supreme Court ordered that
the proceedings at the trial court, as those in the Court of Appeal
be, and were declared null and void.

(Dissenting opinion of Honourable Ejembi Eko,
JSC)

Dissenting on the sole issue, Honourable Ejembi Eko, JSC stated
that the issue is a Preliminary Objection to the competence of the
suit of the Respondents at the trial court and same, was not raised
either at the trial court or the lower court. Therefore, the
counsel who settled the Notice of Appeal was clearly misleading the
court in the Notice of Appeal, when he asserted that the
Defendant/Appellants, was dissatisfied with the decision in the
judgement of the Court of Appeal, and hereby appeal as of right to
the Supreme Court. This is a suggestion that the Preliminary
Objection was an issue before the lower court, which court decided
the issue in its judgement.

His Lordship opined that it was too late in the day for the
Appellants herein to be heard complaining about any defect in the
Writ of Summons to which they unconditionally entered appearance,
filed pleadings, and called evidence; and in respect of which the
trial court gave them judgement. His Lordship stated further that
the Supreme Court does not entertain appeals from the High Court,
and that the provisions of Order 2 Rules 9(1) and 29(1) of the
Supreme Court Rules do not avail the Appellants, as the provision
relates to setting aside a process for non-compliance with the
Supreme Court Rules. This cannot be invoked to set aside or strike
out any process filed at the trial court, as the Supreme Court
cannot usurp the functions of the High Court. Also, the issue
canvassed is a fresh point of law on procedural jurisdiction of the
trial court, which can only be raised on appeal to the Supreme
Court with leave of court. Further, the Writ of Summons was issued
by the Principal Registrar of the High Court in accordance with the
Rules of court, and in line with the claims of the Plaintiff as
endorsed in the Writ. The Rules of court does not authorise the
Plaintiffs or their counsel to issue Writ of Summons; hence, there
is presumption of regularity in line with the provisions of the
Evidence Act. More so, by the provisions of the extant rules of the
High Court of Ogun State, the court is empowered to “amend any
matter in any endorsement or pleading” at any stage, and this may
not necessarily involve the striking out of the entire pleadings.
His Lordship related the instant case to the decided case of
HERITAGE BANK LTD v BENTWORTH FINANCE (NIG.) LTD. (2018} 9 NWLR
(Pt. 1625) 420 (SC) and struck out the appeal with costs.

Appeal Allowed on a ratio of 4:1.

Representation
Mr. S.A. Sanni for the Appellant.

Mr. J.T Shotirane with J.T Komolafe for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the
Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin &
Co.)

In the Supreme Court of Nigeria Holden at Abuja On Friday, the
22nd day of January, 2021

Before Their Lordships
Nwali Sylvester Ngwuta
John Inyang Okoro
Chima Centus Nweze
Ejembi Eko
Uwani Musa Abba Aji

Justices, Supreme Court
SC.254/201

Between

1. ADEKUNLE AJIBODE… … … … … … .. Appellants
2. KARIMU AJIBODE
3. CHIEF RAIMI AJIBODE
4. CHIEF M. A AJIBODE
5. JOHN AYINDE

And

1. DAUDA GBADAMOSI… … … … … … … … Respondents
2. PRINCE SADIRU OBALANLEGBE
3. YISA AKINBOYEDE
4. MURAINA ABATAN (For themselves and on behalf of Aidokun-Ogbo
Family of Ewupe)

(Lead Judgement delivered by Honourable Justice Nwali
Sylvester Ngwuta, JSC)

Facts

The Respondents commenced Suit No. HCT/72/1995 against the
Appellants by a Writ of Summons filed at the High Court of Ogun
State, seeking inter alia, a declaration that the 1st to 5th
Appellant are not members of or related to Adoku-Ogbo Family of
Ewupe, Otta, Ogun State. The Statement of Claim was amended three
times, and the final Amended Statement of Claim was filed on
25/4/2002. The 1st to 5th Appellant filed their Statement of
Defence. At the conclusion of the trial, the court granted two
reliefs in favour of the Respondents and dismissed the other
reliefs sought by them.

Dissatisfied with the judgement of the trial court, the
Appellants appealed to the Court of Appeal, which court allowed the
appeal. The appellate court affirmed the judgement of the trial
court, in respect of the two reliefs which the trial court granted
in part. Dissatisfied with the judgement of the Court of Appeal,
the Appellants appealed to the Supreme Court.

Issue for Determination

The following sole issue was determined by the Apex Court, in
respect of the appeal:
Whether the lower court had jurisdiction to sit on an appeal
emanating from the judgement delivered by the trial court, being a
matter that originated from a Writ of Summons signed by the law
office of Chief Toyer Coker & Co.

Arguments

Counsel for the Appellant submitted that the issue of
jurisdiction can be raised in any proceedings, even at the Supreme
Court, for the first time. He added that once the issue of
jurisdiction is raised, it must be resolved before any further step
is taken in the appeal. Relying on the decision in RAJI & ORS v
IPAYE (2003) 7 SCN 55 at 63, he urged the court to hold that
failure to raise the issue either at the trial court or the Court
of Appeal, will not deprive the Appellants of the right to be heard
on the issue of jurisdiction. Further, counsel relied on the case
of MADUKOLU v NKEMDILIM (1962) 1 All NCR 587, in support of his
position on when a court can assume jurisdiction in a matter. He
referred to pages 1 to 23 of the summons and the ex parte motion,
seeking approval of the trial court for the Respondents to
institute and prosecute the suit in a representative capacity.
Counsel emphasised that the said processes were signed by the law
firm of Chief Toye Coker & Co., which is not qualified under
Section 2(1) of the Legal Practitioner’s Act to sign legal
processes. He reproduced Section 2(1) of the Act and relied on the
decision in OKAFOR v NWEKE (2007) All FWLR (Pt. 368) 1016 at 1025 –
1027, in urging the court to dismiss the suit.

Responding to the submissions above, counsel for the Respondents
conceded that a threshold issue can be raised even on appeal to the
Supreme Court, and that the court has laid down condition for the
competence of a matter before it. The conditions include the case
coming before the court by due process of law, and upon fulfilment
of any condition precedent to the exercise of jurisdiction. He
relied on MADUKOLU v NKEMDILIM (supra) and SKEN CONSULT NIG. LTD v
UKEY (1981) 1 SC 6 at 36. Counsel also agreed with the doctrine of
stare decisis and the case of OKAFOR v NWEKE (supra), which was
followed in SLB CONSORTIUM LTD v NNPC (2011) 4 SCNJ 211. However,
he submitted that a judgement is an authority for what it decides –
EMEKA v OKADIGBO & 4 ORS (2012) 18 NWLR (Pt. 1331) 55 at 95- 97.
The two cases of OKAFOR v NWEKE (supra) and SLB CONSORTIUM LIMITED
v NNPC (supra) in which the Originating Summons and Amended
Statement of Claim were signed by the law firm of Adewale Adesokan
& Co., the objections were predicated on a breach of the rules of
court. He distinguished these cases by stating that in the instant
case, the ground of objection is not predicated on any rules of
court.

Counsel argued further that the Statement of Claim is part of
the originating process and when it is filed, it supersedes the
Writ of Summons and the content therein determine the jurisdiction
of the court to entertain the suit. He argued that the Statement of
Claim, which according to him, is part of the initiating process,
was signed by a legal practitioner. He urged the court to
distinguish the facts of this case from the fact of OKAFOR v NWEKE,
and arrive at a different conclusion from the referenced suit.

Court’s Judgement and Rationale

Deciding the sole issue, the Supreme Court held that the
original Writ of Summons tagged “General Writ of Summons,” was
issued by the law firm of Chief Toye Coker & Co. The Writ contained
an untrue statement to the effect that Chief Toye Coker & Co. of 6,
Ojugbele Street, Off Metun Road, Otta, Ogun State is a legal
practitioner for the Plaintiffs. Chief Toye Coker & Co. is not a
single Legal Practitioner as described in the Writ; rather, it
indicates a firm of legal practitioners.

Citing Section 2(1) of the Legal Practitioner’s Act, the Apex
Court held that “a person” as used in Section 2(1) of the Act means
a natural (not a juristic) person who must have satisfied the
condition precedent to call and must have been called to the Bar in
Nigeria; or admitted under special circumstances to engage in law
practice in Nigeria. The person referred to in the sub-section must
have been duly called to the Bar, and must have been enrolled at
the Supreme Court of Nigeria. Toye Coker & Co is not a person
contemplated in Section 2(1) of the Act.”
Regarding the submission of counsel for the Respondents that the
decision in OKAFOR v NWEKE (supra) and similar cases were decisions
on objections relating to breaches of rules of court, the Supreme
Court held that violation of an Act of the National Assembly is a
much more serious matter than a violation of the rules of court. A
party cannot waive the breach of a law made by the National
Assembly, and it is never late in any proceedings to raise the
issue of jurisdiction.

On the submission that the Statement of Claim, when filed,
supersedes the Writ of Summons, is not absolute in its
applications. It applies to the contents of the Writ of Summons and
if a new claim is contained in the Statement of Claim, the new
claim cannot be superseded for it is not part of the claim in the
Writ, and the Statement of Claim cannot supersede this part. More
so, if the Writ of Summons is filed, as in this case, in violation
of the Legal Practitioner’s Act and Ipso Facto null and void, the
time hallowed principle that the Statement of Claim superseding the
Writ of Summons will not apply. What purports to be a Writ of
Summons in this case became a nullity upon being filed; it could
not ignite the jurisdiction of the court and a purported process
filed pursuant to it does not fare better than the Writ.

Their Lordships held further that if the trial court lacked
jurisdiction to entertain the matter, it follows that the court
below had no jurisdiction to hear the appeal arising therefrom.
Jurisdiction of a court is donated to it by either the Constitution
or by a statute – MISS OLUCHI J. ANYANWAKO v CHIEF MRS. CHRISTY
O.N. OKOYE & 4 ORS. (2010) 1 SC (Pt. II) 30. The jurisdiction of
the court remains dormant, until the claim before the court ignites
it. If the claim has not been brought before the court by due
process, the claim cannot invoke the court’s jurisdiction, and the
court labours in vain in entertaining the suit. This is the case
here. The trial court lacked jurisdiction to entertain the suit,
and the court below didn’t have the competence to determine the
appeal arising from proceedings which are void.

Consequent upon the foregoing, the Supreme Court ordered that
the proceedings at the trial court, as those in the Court of Appeal
be, and were declared null and void.

(Dissenting opinion of Honourable Ejembi Eko,
JSC)

Dissenting on the sole issue, Honourable Ejembi Eko, JSC stated
that the issue is a Preliminary Objection to the competence of the
suit of the Respondents at the trial court and same, was not raised
either at the trial court or the lower court. Therefore, the
counsel who settled the Notice of Appeal was clearly misleading the
court in the Notice of Appeal, when he asserted that the
Defendant/Appellants, was dissatisfied with the decision in the
judgement of the Court of Appeal, and hereby appeal as of right to
the Supreme Court. This is a suggestion that the Preliminary
Objection was an issue before the lower court, which court decided
the issue in its judgement.

His Lordship opined that it was too late in the day for the
Appellants herein to be heard complaining about any defect in the
Writ of Summons to which they unconditionally entered appearance,
filed pleadings, and called evidence; and in respect of which the
trial court gave them judgement. His Lordship stated further that
the Supreme Court does not entertain appeals from the High Court,
and that the provisions of Order 2 Rules 9(1) and 29(1) of the
Supreme Court Rules do not avail the Appellants, as the provision
relates to setting aside a process for non-compliance with the
Supreme Court Rules. This cannot be invoked to set aside or strike
out any process filed at the trial court, as the Supreme Court
cannot usurp the functions of the High Court. Also, the issue
canvassed is a fresh point of law on procedural jurisdiction of the
trial court, which can only be raised on appeal to the Supreme
Court with leave of court. Further, the Writ of Summons was issued
by the Principal Registrar of the High Court in accordance with the
Rules of court, and in line with the claims of the Plaintiff as
endorsed in the Writ. The Rules of court does not authorise the
Plaintiffs or their counsel to issue Writ of Summons; hence, there
is presumption of regularity in line with the provisions of the
Evidence Act. More so, by the provisions of the extant rules of the
High Court of Ogun State, the court is empowered to “amend any
matter in any endorsement or pleading” at any stage, and this may
not necessarily involve the striking out of the entire pleadings.
His Lordship related the instant case to the decided case of
HERITAGE BANK LTD v BENTWORTH FINANCE (NIG.) LTD. (2018} 9 NWLR
(Pt. 1625) 420 (SC) and struck out the appeal with costs.

Appeal Allowed on a ratio of 4:1.

Representation
Mr. S.A. Sanni for the Appellant.

Mr. J.T Shotirane with J.T Komolafe for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the
Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin &
Co.)