UNITY BANK v. KAY PLASTICS (NIG) LTD &ANOR

CITATION: (2018) LPELR-44977(CA)

In the Court of AppealIn the Ilorin Judicial Division

Holden at Ilorin

ON WEDNESDAY, 11TH JULY, 2018Suit No: CA/IL/94/2016

Before Their Lordships:

CHIDI NWAOMA UWA Justice, Court of AppealHAMMA AKAWU BARKA Justice, Court of AppealBOLOUKUROMO MOSES UGO Justice, Court of Appeal

BetweenUNITY BANK PLCAppellant/Cross-Respondent - Appellant(s)

And1. KAY PLASTICS (NIG.) LTD2. ALHAJI KOLAWOLE YUSUFRespondent/Cross-Appellant

- Respondent(s)

RATIO DECIDENDI

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1. ACTION - COUNTER-CLAIM: Whether a counter-claim will fail where an originating process is invalid"...And here my view is that there is no way the said counterclaim of defendants/respondents can survive the invalidity of the writ of summons.While it is true that a counterclaim is usually described as a separate and independent action, we must not fail to put that legal jingle in itsproper context, just as Nnaemeka-Agu, JSC, in Ojibah v. Ojibah (1991) 5 NWLR (PT. 191) 296 also exhorted counsel and the Courts to be waryof "deciding cases and issues on the established legal jingles and catch-phrases without fully asking one's self how well they fit into theparticular facts of the case." A counterclaim is an independent and separate action from the main claim only to the extent that it has a lifeindependent of the plaintiff's claim which the Rules of Court and the Forms made pursuant thereto require to be endorsed on writ of summonsbefore issue. (See a Copy of Form 1 - the format of Writ of summons - contained at pages 202 - 204 of the 2005 Rules of the Kwara State HighCourt). The writ of summons which is a document in the name of the State or Officer of Court, usually the Registrar, summoning/commandingthe defendant to appear to an action in the name of the plaintiff and which usually opens with the command "You are hereby commanded thatwithin .... number of days you cause an appearance to be entered for you in an action at the suit of ...... and in default of your so doing theclaimant may proceed therein and judgment may be given in your absence", is actually the only originating process for all actions required bythe Rules of Court to be commenced by writ of summons. What constitutes the claim of the claimant in the writ, which the defendant is atliberty to respond with a 'counterclaim', is simply the endorsement close to the end of the writ. That endorsement is just one of several that theRules and the Form stipulate be made on the summons before issue. That part of Form 1 at p. 203 of the Rules of the lower Court, incidentallyoccupying just a very little portion of it for that matter, reads thus:Endorsement to be made on the writ before issue thereof.The claimant's claim is for, .........It is this endorsement of the claim on this portion of the writ of summons which the claimant also further particularizes and elaborates upon inhis statement of claim that the defendant counterclaims to which counterclaim is properly described as independent and distinct action fromthe claim endorsed by the claimant, such that even if that claim is held statute barred, not prosecuted, withdrawn, struck out for failure todisclose cause of action, declared incompetent for any other reason or even fails on the merits for lack of proof, the counterclaim is notaffected. It is in that sense and that sense alone that a counterclaim is an independent and separate action from the main action or claim andnot that it is an originating process of its own as suggested by counsel or one hanging in the air, so to speak, without an originating process tosupport it. A counterclaim, I repeat, draws life from the originating process (the writ of summons in this case) filed by the claimant and backedby the power of the State or officer of Court commanding the defendant to appear and contest the action or face the risk of having judgmententered against him in his absence. That being the case, any defect that affects the writ of summons and renders it invalid as in this case isbound to adversely affect every other thing founded on it including claim and counterclaim. It has to be noted too that there are only four waysof originating an action, otherwise called originating processes, recognized by both the 1989 Rules of the High Court of Kwara State applicableat the time of the commencement of this action and the present 2005 Rules of that Court. These are:1. Writ of summons,2. Originating summons,3. Originating motion, and4. Petition.Order 1 Rule 1 of the 1989 Rules as well as Order 2 Rule 1 of the present 2005 Civil Procedure Rules of the Kwara State High Court both ofwhich are similarly subtitled 'Form and Commencement of Action' are in agreement on this with their also similarly-worded provision thatreads:Subject to the provisions of any enactment, civil proceedings may be begun by writ, originating summons, originating motion or petition, ashereinafter provided.Every other process, including statement of claim, witness statements on oath and so forth required by the innovative 'frontloading' 2005 Rulesof Court to accompany the originating processes aforementioned are simply what they are: mere accompaniments and not originatingprocesses. That much is further made clear by the following provisions of the 2005 Rules of the lower Court which are also duplicated in theRules of all other High Courts in this country. First is Order 2 Rule 2 (2) which says:R.2 (1) All civil proceedings commenced by writ shall be accompanied by :(a) statement of claim.(b) list of witnesses to be called at the trial,(c) written statements on oath of the witnesses and,(d) copies of every document to be relied on at the trial.Order 27 R. 1 (1) then makes the distinction between originating proceses like Writs of Summons and their accompaniments even clearer byproviding that:O. 27 R.1(1) The claimant shall file his originating process and accompanying documents simultaneously for service on the defendant or ifthere are two or more defendants, on each defendant.From this and the earlier analysis of the true nature of a counterclaim vis-a-vis the writ of summons, the incompetence of the writ of summonsin his case undoubtedly affected the counterclaim filed by defendants/respondents pursuant to it. To argue the contrary is to assert the legaland logical impossibility of expecting something to stand on nothing. Even going beyond all that is that the counterclaim in this case was, asearlier noted, brought into being through a motion on notice that was prepared and signed by an unknown and undisclosed person 'PP' (for) thesame entity called Kayode Olatoke and Co. That same undisclosed person who may not even be a lawyer at all also signed respondents'attached counterclaim for 'PP' (for) Kayode Olatoke and Co., which the lower Court deemed as properly filed. (See p. 98 - 111 of the recordsagain). That is the process Mr. Akanbi for respondents is defending as valid and having a life of its own and so capable of sustaining thejudgment the lower Court entered in favour of respondents. My Lords, he does not have me with him. I am certain he is not correct.The purported unreported decision of the Supreme Court of 23rd February, 2018 in SC/175/2005 in Heritage Bank Ltd v. Bentworth Finance(Nig.) Ltd cited by Akanbi does not also change anything. In the first place counsel only produced to us an incomplete copy of what purports tobe the judgment of the Supreme Court. The said judgment, apparently downloaded from a website that goes by the name Nigeria Lawyer, onlycontains what purports to be the lead judgment of Ejembi Eko, JSC. There are no contributions from his Brother Justices Rhodes-Vivour, Peter-Odili, Ogunbiyi and Sanusi (JJ.S.C.) whose names also appear on its first page as having heard the appeal with Eko, J.S.C. Even more curiously,the said judgment is purportedly certified by one Bilikisu B. Musa who described herself as Registrar of the Supreme Court of Nigeria, even asthe said document as said is downloaded from the Internet and not obtained from the Supreme Court where it was purportedly certified. That isnot all, the certification is also done only at the last page alone, as opposed to the well noted procedure of the Supreme Court certifying everypage of its judgments. Mr. Adigun cautioned us to be wary of relying on an unreported judgment including the one in issue. I think he has apoint. One even wonders why a judgment said to have been delivered by the Supreme Court since 23rd of February this year (2018) has notbeen officially reported by any of the several Official Law Reporting outlets, not even by Electronic Law Reporters like Law Pavilion andLegalpediawho are noted for prompt reporting of the decisions of not only Supreme Court but a good number of the decisions of this Court too.But assuming that the said incomplete copy of Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd brandished by respondents is actuallygenuine (and it may well be), it must again be pointed out that the document in that case that was signed by a law firm instead of LegalPractitioner was not an originating process like we have here but just a statement of claim. In fact even in that case it was recognized at p.17by Eko, JSC, that "The law is settled as this Court pointed out in Braithwaite v. SkyeBank Plc (supra) at p.17; Nigerian Army v. Samuel (supra) at486; Thomas v. Maude (2007) ALL FWLR (PT. 361) 1749; F.B.N. v. Uwada (respondent again curiously not omitted in the said document) (2002)2 NWLR (PT 805) 485; an irregularity affecting an originating process is a fundamental irregularity that goes to the roots." That settles it, evenas this Court (Barka and Owoade, J.C.A) had also held in Aberuagba & Anor v. Oyekan & Ors (2018) LPELR-43669 that a defect of this typeaffecting the originating process affects a counterclaim too. On that note, I hereby also uphold issue 4 of the appeal and declare the judgmentof the lower Court on respondent's counterclaim also a nullity. The appeal of Unity Bank is therefore also allowed and, for avoidance of doubt,the said judgment of Folayan J. of 10/01/2013 is hereby set aside."Per UGO, J.C.A. (Pp. 27-36, Paras. E-B) - read in context

2. COURT - JURISDICTION: Effect of a court hearing a matter where it has no jurisdiction"...if a Court lacks jurisdiction its decision, no matter how well conducted, is a nullity: Madukolu v. Nkemdilim (1962) SCNLR 341 @ 348(Bairamian, J.S.C.)."Per UGO, J.C.A. (P. 22, Para. F) - read in context

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3. COURT - JURISDICTION: Effect of a court hearing a matter where it has no jurisdiction"If a Court lacks jurisdiction whatever happened before it and what it said in the trial is a nullity. A challenge of Court's jurisdiction can neitherbe stifled by procedural objections (Akegbejo v Ataga (1998)1 NWLR (PT. 534) 459 @ 466; Okoye v. NCFC Ltd. (1991) 6 NWLR (PT. 199) 501 @540-541) nor ignored or swept under the carpet under any other guise: Eze v. Attorney-General of Rivers State (2002) FWLR (PT 89) 1109 @1142 (Karibi-Whyte J.S.C.)."Per UGO, J.C.A. (P. 36, Paras. D-F) - read in context

4. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Proper person to sign a legal process/effect of legal documentssigned/franked by a law firm"The issue of lack of jurisdiction in the lower Court which is raised in both the main appeal and cross-appeal is founded on the manner the writof summons and the counterclaim, including the motion by which time was extended to deem it filed, were signed not by Legal Practitionersbut by the law firm of Uwakwe Abugu & Co. in respect of the writ of summons and original statement of claim, and by Kayode Olatoke & Co. inrespect of the said motion on notice dated and filed on 13/5/2005 and its counterclaim both of which span pages 98 - 111 of the records ofappeal.It is now well settled in our jurisprudence that only Legal Practitioners called to the Bar as stated in Sections 2(1) and 24 of the LegalPractitioners Act, and not law firms, can sign legal processes including originating process. This position is so well entrenched in ourjurisprudence that it is no longer open to disputation. The cases of Okafor v. Nweke (2007) 10 NWLR (PT. 1043) 521 (S.C.); Guaranty Trust BankPlc v. Innoson (Nig.) Ltd (2017) LPELR-42368 (SC); Bukola v. Oshundahunsi (2012) LPELR-8546 (CA); Nigerian Army v. Samuel (2013) 14 NWLR(PT. 1375) 466 @ 483; Ministry of Works & Transport, Adamawa State v. Yakubu (2013) 6 NWLR (PT. 1351) 481 @ 496 (SC); Consortium Ltd v.NNPC (2011) 9 NWLR (PT. 1252) 317 and FBN Ltd v. Maiwada (2013) 5 NWLR (PT. 1348) 444 cited by both parties establish that point beyonddoubt. I guess that also was the reason behind the claimant/appellant/cross-respondent's well informed and commendable decision not tocontest defendants'/respondents'/cross-appellants' attack on the validity of its writ of summons, nay its claim, despite the fact that the trialjudge ruled in its favour when cross-appellant raised that same point in their address before that Court. An incompetent processes, contrary tothe reasoning of the lower Court, cannot be corrected or amended. Any purported amendment of such process is also invalid and amounts towaste of time. Incidentally, I had cause (in company and concurrence of my learned brothers Lokulo-Sodipe and Akinbami, JJ.C.A) to addressthis same issue comprehensively in my Unreported lead Judgment of 07/03/2016 in CA/EK/82/2016: Abiodun Akinyede & Anor v. Dr. FrancisAkinyede.So, Folayan J. was, with due respect, incorrect when she held in her judgment while overruling cross-appellant that:"It would be recalled that there was an amendment granted by this Court to amend the original processes filed in 2003. The complaint here ison the originating process filed on 11th June 2003 (writ of summons) and 17th October, 2005 (statement of claim). There was an applicationgranted for amendment and this complaint and objection is not on the amended statement of claim. An amended process supersedes theoriginal which was amended and the process of this Court which brought hat amendment into being is still a valid decision of this Court whichhas not been challenged or reversed on appeal."In my aforementioned unreported judgment in Abiodun Akinyede & Anor v. Dr. Francis Akinyede, I referenced Order 5 Rule 1 of the old OndoState High Court Rules stating that writ of summons shall be prepared by Legal Practitioner. Order 5 Rules 1 and 2 of the now repealed KwaraState High Court (Civil Procedure) Rules 1989 applicable in the lower Court in 2003 when appellant/cross-respondent filed its summon alsostates that it is the plaintiff's solicitor or the Registrar of Court, if the plaintiff is illiterate or doesn't have a solicitor, that shall prepare writ ofsummons. It reads:Order 5.R.1(1)A writ of summons shall be issued by the Registrar, or other officer of the Court empowered to issue summons, on application.(2) The application shall ordinarily be made in writing by the plaintiff's solicitor by completing from 1 in the Appendix to these Rules, but theRegistrar or other officer as aforesaid, where the applicant for a writ of summons is illiterate, or has no solicitor, may dispense with a writtenapplication and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared,signed and issued.'Also worthy of note are the provisions of Order 5 Rule 1 of the 2005 Rules of the High Court of Kwara State stating that 'Originating processshall be prepared by a claimant or his Legal Practitioner .....'Uwakwe Abugu & Co. not being a solicitor or Legal Practitioner as defined by the Legal Practitioners Act cannot validly prepare let alone sign awrit of summons, consequently the writ it prepared and signed for appellant/cross-respondent is invalid and remained so regardless of theamendment the lower Court purports to have granted it. In the light of that, the cross-appeal has merit and is allowed."Per UGO, J.C.A. (Pp.23-27, Paras. D-D) - read in context

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BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the

Leading Judgment): This appeal and cross-appeal are

against the judgment of M. A. Folayan J. of the High Court

of Kwara State delivered on 10/1/2013. In that judgment

Her Lordship dismissed on its merits appellant’s/cross-

respondent’s claim against the respondents/cross-

appellants and allowed in part the respondents/cross-

appellants’ counterclaim against it.

The background facts of the case are that in 1990 and 1991

appel lant /cross -respondent agreed wi th 1st

respondent /cross -appe l lant to grant i t (1s t

respondent/cross-appellant) banking facilities of ₦6.1

Million for importation and installation of a P.V.C. Film

Production Plant Line in Ilorin. Later in 1993, 1st

respondent applied for a revolving working capital facility

of ₦5m, out of which appellant disbursed ₦3, 710, 594.00.

Second respondent later guaranteed the debt of 1st

respondent up to a limit of ₦23 million.

By its amended writ of summons issued on 10th April, 2003

under the now repealed Kwara State High Court (Civil

Procedure) Rules 1989 (otherwise called the Uniform

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Procedure Rules) operative at that time, appellant/cross-

respondent claimed jointly and severally against

respondents /cross -appel lants for the sum of

₦62,966,477.72 being its calculation of the cumulative

amount of respondents/cross-appellants’ indebtedness to it

from the various banking facilities it afforded 1st

respondent and guaranteed by 2nd respondent.

It is of great interest and a major issue in this appeal that

the Writ of Summons with which appellant commenced its

action was prepared and signed by a firm of solicitors

called Uwakwe Abugu & Co. rather than by a Legal

Practitioner called to the Bar. The same Uwakwe Abugu &

Co. also signed its original statement of claim as ‘counsel to

plaintiff.’

The respondents/cross-appellants filed a Memorandum of

Appearance and followed up with a defence as well as

counterclaim against appellant/cross-respondent for

various sums of money totaling ₦130,408, 100.00. It

brought in its defence and counterclaim through a motion

on notice filed and dated 13th January, 2005 after getting

the order of the lower Court extending time for them to file

both processes and to deem the two processes as properly

filed.

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Like appellant/cross-respondent, all respondents/cross-

appellants said processes including even its motion on

notice were also not signed by a solicitor. If anything their

situation even seems to be worse as their said processes,

motion included, were simply signed by an undisclosed

person or entity for (PP) a firm of solicitors called ‘Kayode

Olatoke & Co.’

Appellant responded with Reply again signed by Uwakwe

Abugu & Co. It later amended all its aforementioned

processes including the writ of summons. Whereas Uwakwe

Abugu Esq., who from the records appeared before the

lower Court in person as a lawyer on several occasions to

prosecute appellant/cross-respondent’s claim signed this

amended writ of summons, the same Uwakwe Abugu & Co.,

of the earlier processes signed all other amended processes

of appellant/cross-respondent again.

In her judgment of 10/01/2013, Folayan J., after overruling

respondents/cross-appellants’ objection to the validity of

appellant/cross-respondent’s action on the grounds that its

writ was not signed by a legal practitioner but by Uwakwe

Abugu and Co., and so invalid, dismissed

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appellant/respondent’s case in its entirety on the merits but

granted the respondents/cross-appellants’ counterclaim in

part.

Dissatisfied with that judgment, appellant, Unity Bank Plc,

filed its Notice and Grounds of appeal against it on 11/1/13.

One of its major complaints is the validity of the

c o u n t e r c l a i m o f t h e d e f e n d a n t s / c o u n t e r -

claimants/respondents/cross-appellants upon which

Folayan J., entered judgment. It is of the view that the said

counterclaim having not been signed by a Legal

Practitioner was incompetent so judgment could not be

properly entered on it.

The defendants/counterclaimants are also not satisfied with

the decision of Her Lordship overruling their objection to

the validity of appellant/cross-respondent’s action on the

same ground of the writ not being signed by a Legal

Practitioner and have cross-appealed against that part of

the judgment by a Notice and Grounds of Appeal dated and

filed on 08/04/2013.

Appellant in its amended brief of argument filed and

adopted by Mr. Teju Adigun distilled the following issues

for determination:

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1. Whether or not the lower Court’s f inding on

the appellant’s claim for N62, 966, 477, 72 was perverse

and liable to be set aside.

2. Whether or not the respondent’s counterclaim was

statute barred.

3. Whether or not respondents are entitled to the monetary

claims and cost granted by the lower Court.

4. Whether the lower Court had jurisdiction to entertain the

respondents’ counterclaim when same was originally

signed in the name of the Kayode Olatoke and Co., and not

by any named legal practitioner.

Respondents/cross-appellants responded to the appeal of

appellant Unity Bank Plc with a brief of argument filed and

adopted at the hearing by Oludare Akanbi Esq. There,

appellant, after pointing out what they described as

‘certain preliminarily issues’ including the fact that in their

view appellant did not appeal against a crucial finding of

the lower Court and no issue was formulated from some

grounds of appeal so those grounds (2, 7, 8 and 10) were

deemed abandoned, formulated similar four issues as

follows:

1. Whether the trial Court was not right when it dismissed

the appellant’s claim on the ground that same was not

proved.

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2. Whether or not the respondent’s counterclaim were

statute barred.

3. Whether or not respondents are entitled to the monetary

claim and cost granted by the lower Court.

4. Whether the trial Court had jurisdiction to entertain the

respondents’ counterclaim.

They, defendants/respondents, as cross-appellants then

filed and adopted a separate brief of argument in respect of

their cross-appeal and formulated the following sole issue:

Whether the learned trial judge was right when he held

that the writ of summons and statement of claim of the

claimant (now cross-respondent) signed in the name of

Uwakwe Abugu & Co. is competent, the contents of same

having been amended.

Claimant/appellant (Unity Bank Plc) it should be noted

elected not to respond to the cross-appeal attacking the

very foundation of its action on which its appeal is

anchored. That prompted Mr. Oludare Akanbi for cross-

appellant to submit during the hearing of the appeal on

30/05/2018 that claimant/appellant had conceded the cross-

appeal. Mr. Adigun for Unity Bank Plc. had no response to

even that submission.

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Arguments

Arguing issue 1 of its appeal, appellant (Unity bank Plc)

through its counsel Mr. Adigun first took on the finding of

Folayan J., that it wrongly computed the interest and

charges on a revolving loan of ₦5 Million instead of the

correct amount of ₦3.7m and that rendered the total

amount of ₦62,966,477.72 claimed by it incorrect and

unreliable. Counsel argued that appellant clearly pleaded,

and it was testified to by PW3, that though although ₦5m

was approved as warehouse facility, only ₦3, 710, 594.00

was disbursed to and utilized by 1st respondent so there

was no basis for His Lordship’s finding that it wrongly

computed the interest and charges it claimed on ₦5m

instead of N3.7m that was disbursed to 1st respondent.

Miscarriage of justice, counsel thus argued, was occasioned

by Her Lordship’s finding which deserves our intervention.

A customer’s indebtedness to its bank is usually proved by

statements of accounts, counsel argued, and this, appellant,

he said, did by tendering Exhibits 35 – 38 all of which are

1st respondent’s statements of accounts. PW3, counsel also

argued, testified to how these statements of accounts arose

from the facilities it granted 1st

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respondent yet counsel to 1st respondent did not

controvert them either in cross-examination or final

address. He thus submitted that appellant sufficiently

proved its claim of ₦62,966,477.72 and the lower wrong in

finding otherwise so we should resolve this issue in its

favour.

All other arguments of appellant (Unity Bank Plc) were

directed at the partial grant of the counterclaim of

respondents by the lower Court.

On issue 2, it (Unity Bank Plc) argued that respondents’

counterclaim was brought after six years of the date cause

of action accrued to respondents so it was barred by the

Limitation Law of Kwara State and the lower Court wrong

in rejecting its contention to that effect. Its counsel Mr.

Adigun went through each head of the counterclaim in

arriving at the said conclusion. The claim of ₦4,536,100 for

counterpart funding according to it accrued with the

commissioning of the PVC Plant in issue in 1992 and so

respondents’ 6-year period to sue on it lapsed in 1998. Two

Million Naira (₦2m) general damages claimed by

respondents for the takeover of the same Plant by its said

appointment of the Consultant/Manager also ran from

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1/4/1993 when he was appointed and 30/09/94 when the 18

months agreed by parties for him to run the Plant ended,

but respondents went to sleep until 2007, it argued. The

same thing it said applied to the claims for counterpart

funding which also took effect from the commissioning of

the Plant in 1/4/93 and ought to have ended on 30/9/94. It

asked us to resolve this issue in its favour and hold the

counterclaim statute barred.

On issue 3, the Bank argued that respondents did not lead

any credible evidence to support their monetary

counterclaims for which the trial judge granted them

₦4,536,100 for counterpart funding, general damages of

₦2m and costs of ₦100, 000. It argued that not only were

respondents’ pleadings inconsistent with respect to

counterpart funding, there was also material conflict in the

documents they relied on to support their claim. Apart from

Exhibits D6 and D14, it argued, respondents did not

produce any shred of evidence in support of their claim of

₦4,536,100. The lower Court’s decision to award

respondent’s general damages, it argued, was also

erroneous.

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A party claiming damages must lead evidence in proof of

such damage, it submitted citing U.B.A. Plc v. Iboro

(2009) LPELR- 8383 (CA).

It argued that the award of ₦100,000 cost by the lower

Court in favour of respondents was without basis, that the

Court does not make a habit of granting what a party did

not ask. It finally asked us to reverse the decision of the

lower Court in granting the claims of for counterpart

funding, general damages and the award of ₦100,000.00.

On issue 4, it was argued by appellant that the judgment of

the lower Court on the counterclaim was given without

jurisdiction and liable to be set aside. It anchored this

submission on the fact that the counterclaim itself and the

motion on notice that brought it into the proceeding were

all signed by Kayode Olatoke & Co. instead of a Legal

Practitioner called to the Bar within the meaning of Section

2(1) of the Legal Practitioners Act. That omission, it

argued, is fundamental, renders the counterclaim invalid, is

incapable of being cured by an amendment and denies the

Court of jurisdiction to hear it. For these, we were referred

to a number of cases including Okafor v. Nweke (2007)

10 NWLR (PT 1043) 521 (S.C.); Guaranty

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Trust Bank Plc v. Innoson (Nig.) Ltd (2017)

LPELR-42368 (SC); Bukola v. Oshundahunsi (2012)

LPELR-8546 (CA); Nigerian Army v. Samuel (2013) 14

NWLR (PT. 1375) 466 @ 483; Ministry of Works &

Transport, Adamawa State v. Yakubu (2013) 6 NWLR

(PT. 1351) 481 @ 496 (SC). It was submitted by counsel

on behalf of the Bank that the counterclaim is respondents’

‘originating’ or ‘initiating’ process against it because a

counterclaim is a separate and independent action. A Court

cannot adjudicate on an incompetent and therefore invalid

process like the counterclaim of the respondents, it was

submitted by Mr. Adigun relying on Ikpeazu v. Ekeagbara

(2016) LPELR-40847(CA) p. 22-24; Ogunmola v. Kida

(2006) 13 NWLR (PT. 997) 377 S.C. Counsel stressed

that a counterclaim collapses if the writ of summons in the

action is incompetent.

Mr. Adigun for appellant later submitted to us as additional

authorities the decisions of this Court in the cases of

Aberuagba & Anor v . Oyekan & Ors (2018)

LPELR-43669 particularly the dicta of Barka and Owoade

JJ.C.A and Integrated Merchants Ltd v. Osun state

Government & Anor. (2011) LPELR-8803 (CA)

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p. 9, (Adumein, JCA). Counsel urged us to resolve this

issue too against respondents and set aside the judgment of

the lower Court granting their counterclaim. Counsel

finally prayed us to allow its appeal.

Responding in the order the four issues were argued by

appellant Bank, Mr. Akanbi for respondents on issue 1

submitted that appellant failed woefully to prove the ₦62,

966, 477.72 debt it claimed from respondents so the lower

court was right in dismissing its claim. Counsel argued that

since respondents joined issues with appellant by asserting

that the actual amount of money appellant released to 1st

respondent was only ₦3,710,594 and not the ₦5,000,000.00

both parties initially agreed by the Equipment Lease

Agreement it should advance 1st respondent and since

evidence abound that it was actually ₦3,710, 594 that

appellant released to 1st respondent, the onus was on it

(appellant) as claimant to prove that it computed its said

debt of ₦62,966,477.72 on interest and bank charges

calculated on ₦3,710, 594 and not ₦5,000,000.00. That,

counsel argued, it failed to prove and its case was properly

dismissed.

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Learned counsel citing Adebiyi v. Umar (2012) 9 NWLR

(PT. 1305) 275 @ 302 and Wema Bank Plc v. Osilaru

(2008) 10 NWLR (PT. 1094) 150 @ 179 (CA) and

Habib Nig. Bank Ltd v. Gifts Unique Nig. Ltd (2008)

10 NWLR (PT 1094) 150 @ 179 argued that merely

tendering or dumping on the Court statements of accounts

as appellant did was not enough, that the Court cannot turn

itself to appellant’s Lord Advocate or an investigating body

and do the math for it.

On issue 2, of whether the cause of action in the

counterclaim was statute barred having been purportedly

commenced after six years of the alleged breach of

contract, respondents through their counsel argued that

the cause of action in respect of the counterclaim was a

continuous one as long as appellant and its consultant

managers were using the equipment for the plant from

1991 till 2001; that at best cause of action arose in 2002

when appellant caused her solicitors to write Exhibit 40

demanding for payment of the amount it claimed

respondents were owing it from the said equipment lease

agreement. The cause of action, counsel submitted, in fact

finally arose when appellant filed this action in 2003

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thereby evincing its intention not to be bound by its

agreements with respondents. Citing Iyizoba, JCA, in

Adesina v. Ojo (2012) 10 NWLR (PT. 1309) 552 @ 569,

counsel argued that cause of action cannot exist where

nothing has happened to entitle a plaintiff to some relief or

to sue someone. So long as appellant was holding over the

plant with a promise to efficiently service the debt but

neither handed the plant nor serviced the debt, a fresh

cause of arose, he submitted. For what constitutes

continuing cause of action counsel referred us to

S.P.D.C.N. Ltd v. Amadi (2010) 3 NWLR (PT. 1210) 82

@ 123 and C.B.N. v. Amao (2010) 15 NWLR (PT.

1219) 271 @ 296 para B-D. (S.C).

The claim of general damages, counsel submitted, cannot

be statute barred as it is contingent on the injury suffered

by respondent as a result of the breach of contract between

the parties, for which counsel cited N.M.A. v. MMA

(2010) 4 NWLR (PT. 1185) 613 @ 650. Counsel urged

us to resolve this issue against appellant.

On issue 3, respondents submitted that they proved their

claims of ₦4,536,100.00.00, general damages of ₦2Million

and costs of ₦100,000.00 the lower Court awarded them.

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In respect of the sum of ₦4,536,100.00.00 they said they

gave in their pleadings and Exhibit D14 a breakdown of

that sum as representing their total investment in their

Equipment Lease Agreement with appellant which was

breached by it. Exhibit D14, they asserted, is the

assessment appellant asked them to make when it was

contemplating selling the PVC Plant that was the subject of

their agreement. Exhibit D14 they said was sent to

appellant but it did not dispute nor protest the quotation,

not even in its pleadings or through evidence of its

witnesses. There is also no conflict between paragraphs 43

and 53 of their defence or their Exhibits D6 and D14, they

argued. They submitted that they need not show any

receipt to back up their expenditure on those items nor

prove that they were pre-agreed between them and

appellant, that once they are able to show that they

expended such amounts on the plant that was mismanaged

by the appellant, they are entitled to their expenses, they

submitted. Proof of special damages, they argued, means

no more than giving calculable assessment of the claim and

means giving the other party access to the facts upon

which the calculation is based.

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Respondents argued, too, that the lower Court was also

right in awarding them general damages since they proved

breach of contract by appellant. They submitted that 1st

respondent would have made profit from the plant if

appellant had allowed it to manage it, which position they

argued the Court is empowered to put them back by award

of special damages. U.B.A. Plc v. BTL Ind. Ltd (2006) 19

NWLR (PT. 1013) 61 @ 143; Omega Bank Nig. Plc v.

O.B.C. Ltd (2005) 8 NWLR (PT. 928) 547 @ 578,

Johnson Wax (Nig.) Ltd v. Sanni (2010) 3 NWLR (PT.

1181) 235 @ 251 were cited by respondents to buttress

this point.

On the cost of ₦100,000.00 awarded them by the trial

judge, they submitted that given the provisions of Order 55

R. 1 of the Rules of High Court of Kwara State 2005

enjoining the Court to indemnify the party who is in the

right for his expenses and also taking into account the fact

that the case dragged on for ten years in the trial Court,

costs of ₦100,000.00 was reasonable so we should not

interfere.

On issue four concerning their counterclaim and the motion

for the order deeming it, all of which were signed by

Kayode Olatoke & Co., respondents

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argued that there is a distinction between signing an

originating process in the name of a law firm and doing so

in respect of a process that does not originate the action

the latter of which they submitted a counterclaim belongs.

They argued that whereas the former is fundamental and

goes to the root of the action and automatically invalidates

the proceeding, the latter is mere irregularity and does not

invalidate. For this they strongly relied on what they

described as an unreported decision of the Supreme Court

of 23rd February, 2018 in SC/175/2005 in Heritage Bank

Ltd v. Bentworth Finance (Nig.) Ltd. They cited the case

in their brief of argument but their counsel only produced

to us after argument an incomplete version of what

purports to be the judgment of the Supreme Court

containing only a lead judgment credited to Ejembi Eko,

JSC. They argued that the process being challenged by

appellant is a ‘statement of defence’ which by the decision

in Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd

is not an originating process so the issue of its signing by

the law firm of Kayode Olatoke & Co. should be treated as

mere irregularity.

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Counsel on their behalf argued, too, that appellant did not

raise its said complaint of the ‘irregularity’ of the statement

of defence/counterclaim upon its service on it but rather

filed a reply and even cross-examined on it so it is too late

for it to complain now as it is deemed to have waived the

said ‘irregularity’.

Assuming, but without conceding that the irregularity is

even fatal, counsel further argued, appellant’s remedy lies

in the provisions of Order 4 R. 2(1) and (2) of the Rules of

the trial Court, which enjoins it to apply by motion on

notice or summons within reasonable time, and before it

takes further steps in the proceedings, to set aside the said

process. Appellant having failed to comply with that

procedure, they argued, it cannot be heard now and the

cases it cited are of no avail. Counsel cited a number of

cases on this point including an earlier unreported decision

of this Court of 22/07/2011 in Appeal No. CA/IL/ 21/29(?)

between the parties herein, Unity Bank Plc v. Kay

Plastics Nig. Ltd & Anor, and urged us to resolve this

issue too against appellant and dismiss its appeal with

heavy costs.

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In reply, Mr. Adigun for appellant argued that appellant’s

challenge to the validity of the counterclaim is one that

touches the jurisdiction of the Court and so capable of

being raised at any time; that it can never be too late to

raise it as any proceeding conducted without jurisdiction is

a nullity: for which he cited Agbiti v. Nigerian Navy

(2011) 4 NWLR (PT. 1236) 175 (SC) among other cases.

A counterclaim is a separate and independent action so it is

the originating process in itself and its signing by Kayode

Olatoke & Co. invalidated it, Mr. Adigun countered.

On respondents’ contention that improper signing of the

counterclaim by Kayode Olatoke & Co. is mere irregularity

which is deemed waived, and is waived by respondents

having not challenged the counterclaim within reasonable

time in line with Order 4 Rule 2 of the Rules of the lower

Court, Mr. Adigun relying on the decisions of the Supreme

Court in SLB Consortium Ltd v. NNPC (2011) 9 NWLR

(PT. 1252) 317 and FBN Ltd v. Maiwada (2013) 5

NWLR (PT 1348) 444 submitted that the failure of

respondents to comply with substantive provisions of

Sections 2(1) and 24 of the Legal Practitioners Act cannot

be mere irregularity neither can they be supplanted by

rules of Court.

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On the unreported decision of the Supreme Court in

Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd which

formed the backbone of respondents’ bid to sustain their

counterclaim, Mr. Adigun cautioned us to exercise extreme

restraint in placing reliance on an unreported decision

which is not also placed before us. Counsel went on to

submit that the said decision does not even avail

respondents as the document in issue there was a

statement of claim and not counterclaim as in this case. To

that extent, he argued, the relevant authority is FBN Ltd v.

Maiwada (2013) 5 NWLR (PT. 1348) 444 which was

incidentally a decision of the full Court of the Supreme

Court, as opposed to a regular 5-man Panel of the Court

that decided Heritage Bank Ltd v. Bentworth Finance

(Nig.) Ltd, he pointed out. A decision of the full panel of a

Court can only be overruled by another full panel of that

Court and not by a regular panel, counsel submitted citing

Yonwuren v. Modern Signs (1985) 1 NWLR (PT. 2)

244; Osafile v. Odi (1985) 1 NWLR (PT. 1) 17; Bogoro

Local Government Council v. Kyauta & Ors (2017)

LPELR-43296 (CA).

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Argument of the Cross-Appeal

The cross-appellants’ argument of their sole issue of

“Whether the learned trial judge was right when he

held that the writ of summons and statement of claim

of the claimant (now cross-respondent) signed in the

name of Uwakwe Abugu & Co. is competent, the

contents of same having been amended” ran along the

same lines with those canvassed by appellant against the

counterclaim in the main appeal. The pith of their

argument is that the entity called Uwakwe Abugu & Co.

that signed plaintiff/appellant/cross-respondent’s writ of

summons is not a Legal Practitioner within the meaning of

Sections 2(1) and 24 of the Legal Practitioners Act so it is

incompetent and left the Court without jurisdiction to

entertain it and wrong in its decision overruling their

contention to that effect. They stressed that being an

incompetent process the purported amendment by the

lower Court is also invalid and incapable of curing it,

contrary to Her Lordship’s reasoning, neither is it one that

can be cured by rules of Court.

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For these submissions they cited basically the same

cases cited by appellant in their argument against the

counterclaim and urged us to uphold their cross-appeal and

strike out the claims of the cross-respondent in their

entirety.

As earlier pointed out, Unity Bank Plc did not respond to

the cross-appeal. Even more noteworthy, its counsel Mr.

Adigun had no answer to the submission of Mr. Akanbi for

cross-appellant, during argument of the appeal on

30/05/2018, that its failure to respond to the cross-appeal

meant it had conceded to it.

Resolution of issues

The first issue that needs to be resolved in both appeal and

cross-appeal is the validity of the process or processes by

which the claim and counterclaim were commenced at the

trial Court. The resolution of that issue may even render

otiose all the other issues in the main appeal relating to the

correctness or otherwise of the decision of the lower Court

on the merits of the case the parties brought before it. This

is so because of the settled position that if a Court lacks

jurisdiction its decision, no matter how well conducted, is a

nullity: Madukolu v. Nkemdilim (1962) SCNLR 341 @

348 (Bairamian, J.S.C.).

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My Lords, permit me, therefore, to adopt an unconventional

approach here by starting with the cross-appeal targeted at

the main claim instead of beginning from the main appeal. I

do so for two reasons: (1) the cross-appeal challenges the

validity of the main claim and the jurisdiction of the lower

Court over it, and (2) the invalidity of the originating

summons may have a direct bearing on whether

respondent/cross-appellant’s counterclaim, which is only

attacked in the main appeal, can survive without it. I

thought I should first deal with the big masquerade,

regardless of where it may be found, before coming to the

smaller one. So I start with the cross-appeal.

The cross-appeal

The issue of lack of jurisdiction in the lower Court which is

raised in both the main appeal and cross-appeal is founded

on the manner the writ of summons and the counterclaim,

including the motion by which time was extended to deem

it filed, were signed not by Legal Practitioners but by the

law firm of Uwakwe Abugu & Co. in respect of the writ of

summons and original statement of claim, and by Kayode

Olatoke & Co. in respect of the said motion on notice

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dated and filed on 13/5/2005 and its counterclaim both of

which span pages 98 – 111 of the records of appeal.

It is now well settled in our jurisprudence that only Legal

Practitioners called to the Bar as stated in Sections 2(1)

and 24 of the Legal Practitioners Act, and not law firms,

can sign legal processes including originating process. This

position is so well entrenched in our jurisprudence that it is

no longer open to disputation. The cases of Okafor v.

Nweke (2007) 10 NWLR (PT. 1043) 521 (S.C.);

Guaranty Trust Bank Plc v. Innoson (Nig.) Ltd (2017)

LPELR-42368 (SC); Bukola v. Oshundahunsi (2012)

LPELR-8546 (CA); Nigerian Army v. Samuel (2013) 14

NWLR (PT. 1375) 466 @ 483; Ministry of Works &

Transport, Adamawa State v. Yakubu (2013) 6 NWLR

(PT. 1351) 481 @ 496 (SC); SLB Consortium Ltd v.

NNPC (2011) 9 NWLR (PT. 1252) 317 and FBN Ltd v.

Maiwada (2013) 5 NWLR (PT. 1348) 444 cited by both

parties establish that point beyond doubt. I guess that also

was the reason behind the claimant/appellant/cross-

respondent’s well informed and commendable decision not

to contest defendants’/respondents’/cross-appellants’

attack on the validity of its writ of summons, nay its

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claim, despite the fact that the trial judge ruled in its favour

when cross-appellant raised that same point in their

address before that Court. An incompetent processes,

contrary to the reasoning of the lower Court, cannot be

corrected or amended. Any purported amendment of such

process is also invalid and amounts to waste of time.

Incidentally, I had cause (in company and concurrence of

my learned brothers Lokulo-Sodipe and Akinbami, JJ.C.A) to

address this same issue comprehensively in my Unreported

lead Judgment of 07/03/2016 in CA/EK/82/2016: Abiodun

Akinyede & Anor v. Dr. Francis Akinyede.

So, Folayan J. was, with due respect, incorrect when she

held in her judgment while overruling cross-appellant that:

“It would be recalled that there was an amendment granted

by this Court to amend the original processes filed in 2003.

The complaint here is on the originating process filed on

11th June 2003 (writ of summons) and 17th October, 2005

(statement of claim). There was an application granted for

amendment and this complaint and objection is not on the

amended statement of claim.

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An amended process supersedes the original which was

amended and the process of this Court which brought hat

amendment into being is still a valid decision of this Court

which has not been challenged or reversed on appeal.”

In my aforementioned unreported judgment in Abiodun

Akinyede & Anor v. Dr. Francis Akinyede, I referenced

Order 5 Rule 1 of the old Ondo State High Court Rules

stating that writ of summons shall be prepared by Legal

Practitioner. Order 5 Rules 1 and 2 of the now repealed

Kwara State High Court (Civil Procedure) Rules 1989

applicable in the lower Court in 2003 when appellant/cross-

respondent filed its summon also states that it is the

plaintiff’s solicitor or the Registrar of Court, if the plaintiff

is illiterate or doesn’t have a solicitor, that shall prepare

writ of summons. It reads:

Order 5.

R.1(1)

A writ of summons shall be issued by the Registrar, or

other officer of the Court empowered to issue summons, on

application.

(2) The application shall ordinarily be made in writing by

the plaintiff’s solicitor by completing from 1 in the

Appendix to these Rules, but the Registrar or other officer

as aforesaid, where the applicant for a writ of

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summons is illiterate, or has no solicitor, may dispense with

a written application and instead himself record full

particulars of an oral application made and on that record a

writ of summons may be prepared, signed and issued.’

Also worthy of note are the provisions of Order 5 Rule 1 of

the 2005 Rules of the High Court of Kwara State stating

that ‘Originating process shall be prepared by a claimant or

his Legal Practitioner …..’

Uwakwe Abugu & Co. not being a solicitor or Legal

Practitioner as defined by the Legal Practitioners Act

cannot validly prepare let alone sign a writ of summons,

consequently the writ it prepared and signed for

appellant/cross-respondent is invalid and remained so

regardless of the amendment the lower Court purports to

have granted it. In the light of that, the cross-appeal has

merit and is allowed.

And that takes me back to the main appeal.

The Main Appeal

And here my view is that there is no way the said

counterclaim of defendants/respondents can survive the

invalidity of the writ of summons. While it is true that a

counterclaim is usually described as a separate and

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independent action, we must not fail to put that legal jingle

in its proper context, just as Nnaemeka-Agu, JSC, in Ojibah

v. Ojibah (1991) 5 NWLR (PT. 191) 296 also exhorted

counsel and the Courts to be wary of “deciding cases and

issues on the established legal jingles and catch-phrases

without fully asking one’s self how well they fit into the

particular facts of the case.” A counterclaim is an

independent and separate action from the main claim only

to the extent that it has a life independent of the plaintiff’s

claim which the Rules of Court and the Forms made

pursuant thereto require to be endorsed on writ of

summons before issue. (See a Copy of Form 1 - the format

of Writ of summons - contained at pages 202 – 204 of the

2005 Rules of the Kwara State High Court). The writ of

summons which is a document in the name of the State or

O f f i c e r o f C o u r t , u s u a l l y t h e R e g i s t r a r ,

summoning/commanding the defendant to appear to an

action in the name of the plaintiff and which usually opens

with the command “You are hereby commanded that

within …. number of days you cause an appearance to be

entered

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for you in an action at the suit of …… and in default of your

so doing the claimant may proceed therein and judgment

may be given in your absence”, is actually the only

originating process for all actions required by the Rules of

Court to be commenced by writ of summons. What

constitutes the claim of the claimant in the writ, which the

defendant is at liberty to respond with a ‘counterclaim’, is

simply the endorsement close to the end of the writ. That

endorsement is just one of several that the Rules and the

Form stipulate be made on the summons before issue. That

part of Form 1 at p. 203 of the Rules of the lower Court,

incidentally occupying just a very little portion of it for that

matter, reads thus:

Endorsement to be made on the writ before issue thereof.

The claimant’s claim is for, ………

It is this endorsement of the claim on this portion of the

writ of summons which the claimant also further

particularizes and elaborates upon in his statement of claim

that the defendant counterclaims to which counterclaim is

properly described as

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independent and distinct action from the claim endorsed by

the claimant, such that even if that claim is held statute

barred, not prosecuted, withdrawn, struck out for failure to

disclose cause of action, declared incompetent for any

other reason or even fails on the merits for lack of proof,

the counterclaim is not affected. It is in that sense and that

sense alone that a counterclaim is an independent and

separate action from the main action or claim and not that

it is an originating process of its own as suggested by

counsel or one hanging in the air, so to speak, without an

originating process to support it. A counterclaim, I repeat,

draws life from the originating process (the writ of

summons in this case) filed by the claimant and backed by

the power of the State or officer of Court commanding the

defendant to appear and contest the action or face the risk

of having judgment entered against him in his absence.

That being the case, any defect that affects the writ of

summons and renders it invalid as in this case is bound to

adversely affect every other thing founded on it including

claim and counterclaim.

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It has to be noted too that there are only four ways of

originating an action, otherwise called originating

processes, recognized by both the 1989 Rules of the High

Court of Kwara State applicable at the time of the

commencement of this action and the present 2005 Rules

of that Court. These are:

1. Writ of summons,

2. Originating summons,

3. Originating motion, and

4. Petition.

Order 1 Rule 1 of the 1989 Rules as well as Order 2 Rule 1

of the present 2005 Civil Procedure Rules of the Kwara

State High Court both of which are similarly subtitled

‘Form and Commencement of Action’ are in agreement on

this with their also similarly-worded provision that reads:

Subject to the provisions of any enactment, civil

proceedings may be begun by writ, originating

summons, originating motion or petition, as

hereinafter provided.

Every other process, including statement of claim, witness

statements on oath and so forth required by the innovative

‘frontloading’ 2005 Rules of Court to accompany the

originating processes aforementioned are simply what they

are: mere accompaniments and not originating processes.

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That much is further made clear by the following provisions

of the 2005 Rules of the lower Court which are also

duplicated in the Rules of all other High Courts in this

country. First is Order 2 Rule 2 (2) which says:

R.2 (1) All civil proceedings commenced by writ shall

be accompanied by :

(a) statement of claim.

(b) list of witnesses to be called at the trial,

(c) written statements on oath of the witnesses and,

(d) copies of every document to be relied on at the trial.

Order 27 R. 1 (1) then makes the distinction between

originating proceses like Writs of Summons and their

accompaniments even clearer by providing that:

O. 27 R.1(1) The claimant shall file his originating

process and accompanying documents simultaneously

for service on the defendant or if there are two or more

defendants, on each defendant.

From this and the earlier analysis of the true nature of a

counterclaim vis-a-vis the writ of summons, the

incompetence of the writ of summons in his case

undoubtedly affected the counterclaim filed by

defendants/respondents pursuant to it. To argue the

contrary is to assert the legal and logical impossibility of

expecting something to stand on nothing.

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Even going beyond all that is that the counterclaim in this

case was, as earlier noted, brought into being through a

motion on notice that was prepared and signed by an

unknown and undisclosed person ‘PP’ (for) the same entity

called Kayode Olatoke and Co. That same undisclosed

person who may not even be a lawyer at all also signed

respondents’ attached counterclaim for ‘PP’ (for) Kayode

Olatoke and Co., which the lower Court deemed as properly

filed. (See p. 98 – 111 of the records again). That is the

process Mr. Akanbi for respondents is defending as valid

and having a life of its own and so capable of sustaining the

judgment the lower Court entered in favour of respondents.

My Lords, he does not have me with him. I am certain he is

not correct.

The purported unreported decision of the Supreme Court of

23rd February, 2018 in SC/175/2005 in Heritage Bank

Ltd v. Bentworth Finance (Nig.) Ltd cited by Akanbi

does not also change anything. In the first place counsel

only produced to us an incomplete copy of what purports to

be the judgment of the Supreme Court. The said judgment,

apparently downloaded from a website that

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goes by the name Nigeria Lawyer, only contains what

purports to be the lead judgment of Ejembi Eko, JSC. There

are no contributions from his Brother Justices Rhodes-

Vivour, Peter-Odili, Ogunbiyi and Sanusi (JJ.S.C.) whose

names also appear on its first page as having heard the

appeal with Eko, J.S.C. Even more curiously, the said

judgment is purportedly certified by one Bilikisu B. Musa

who described herself as Registrar of the Supreme Court of

Nigeria, even as the said document as said is downloaded

from the Internet and not obtained from the Supreme Court

where it was purportedly certified. That is not all, the

certification is also done only at the last page alone, as

opposed to the well noted procedure of the Supreme Court

certifying every page of its judgments. Mr. Adigun

cautioned us to be wary of relying on an unreported

judgment including the one in issue. I think he has a point.

One even wonders why a judgment said to have been

delivered by the Supreme Court since 23rd of February this

year (2018) has not been officially reported by any of the

several Official Law Reporting outlets, not even by

Electronic Law Reporters like Law Pavilion and Legalpedia

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who are noted for prompt reporting of the decisions of not

only Supreme Court but a good number of the decisions of

this Court too.

But assuming that the said incomplete copy of Heritage

Bank Ltd v. Bentworth Finance (Nig.) Ltd brandished

by respondents is actually genuine (and it may well be), it

must again be pointed out that the document in that case

that was signed by a law firm instead of Legal Practitioner

was not an originating process like we have here but just a

statement of claim. In fact even in that case it was

recognized at p.17 by Eko, JSC, that “The law is settled as

this Court pointed out in Braithwaite v. SkyeBank Plc

(supra) at p.17; Nigerian Army v. Samuel (supra) at

486; Thomas v. Maude (2007) ALL FWLR (PT. 361)

1749; F.B.N. v. Uwada (respondent again curiously not

omitted in the said document) (2002) 2 NWLR (PT 805)

485; an irregularity affecting an originating process is a

fundamental irregularity that goes to the roots.” That

settles it, even as this Court (Barka and Owoade, J.C.A) had

also held in Aberuagba & Anor v. Oyekan & Ors (2018)

LPELR-43669 that a defect of this type affecting the

originating process affects a counterclaim too.

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On that note, I hereby also uphold issue 4 of the appeal and

declare the judgment of the lower Court on respondent’s

counterclaim also a nullity. The appeal of Unity Bank is

therefore also allowed and, for avoidance of doubt, the said

judgment of Folayan J. of 10/01/2013 is hereby set aside.

In so deciding, I am not unmindful of the preliminary issues

raised by Mr. Akanbi regarding the issues framed by

appellant or his other contention that a particular finding of

the trial judge on the counterclaim was not appealed. Those

arguments may have been valid if the issue here was not

one of jurisdiction. If a Court lacks jurisdiction whatever

happened before it and what it said in the trial is a nullity.

A challenge of Court’s jurisdiction can neither be stifled by

procedural objections (Akegbejo v Ataga (1998)1 NWLR

(PT. 534) 459 @ 466; Okoye v. NCFC Ltd. (1991) 6

NWLR (PT. 199) 501 @ 540-541) nor ignored or swept

under the carpet under any other guise: Eze v. Attorney-

General of Rivers State (2002) FWLR (PT 89) 1109 @

1142 (Karibi-Whyte J.S.C.). For the same reason that the

proceeding before he lower Court was a nullity,

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every other issue canvassed in the appeal also become

academic and not worthy of a decision.

In the final analysis, both appeal and cross-appeal are

allowed on grounds of the invalidity of the writ of summons

and counterclaim and the proceedings of the lower Court

including its judgment of 10/01/2013 is/are declared nullity

and, for avoidance of doubt, set aside and the said case

struck out from that Court.

Parties shall bear their costs.

CHIDI NWAOMA UWA, J.C.A.: I read before now the

draft copy of the judgment of my learned brother,

BOLOUKUROMO MOSES UGO, JCA. The issue of

competence of the Appeal and cross-appeal were

comprehensively looked into and resolved by his Lordship

and I have nothing to add. I agree that the Appeal and

Cross-Appeal are meritorious and I also allow same to the

effect that the proceedings before the lower Court

including the judgment is a nullity, same is set aside. I

abide by the order awarding no costs in the leading

judgment.

HAMMA AKAWU BARKA, J.C.A.: I was opportuned to

have read in draft the judgment just delivered by my

learned brother BOLOUKUROMO MOSES

37

(201

8) LP

ELR-44

977(

CA)

UGO JCA. I fully endorse the resolution of the sole issue in

the appeal, as well as the issue raised in the Cross Appeal.

My Lord has brilliantly dealt with the arguments to my

satisfaction. The judgment of the lower Court having been

founded on a defective writ of summons, the entirety of the

proceedings before it was a nullity. It is accordingly set

aside by me and the case struck out being incompetent.

38

(201

8) LP

ELR-44

977(

CA)

Appearances:

Teju Adigun Esq. with him, Grace Jogoh Esq. andOlatobera Oladeji Esq.- for Appellant/Cross-Respondent For Appellant(s)

Oludare Akanbi Esq. with him, K. Aminu Esq. andO.J. David Esq.- for Respondent/Cross- AppellantFor Respondent(s)

(201

8) LP

ELR-44

977(

CA)