By its notice of preliminary objection filed on 19th October, 2011, the Respondent challenges the competence of the instant appeal on the ground that the appeal being a continuation of the original suit which brought it about, and the suit, Suit No. LD/1850/2005 is commenced by a defective writ of summons and statement of claim, both dated and filed on 25th October, 2005, the appeal is incurably defective thereby robbing the court of the jurisdiction to hear and determine the appeal.
It was argued by the Respondent that this failure offends the mandatory provisions of Order 6 Rule 2 (3) and Order 15 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2004 respectively and therefore neither the Court of Appeal or Supreme Court could assume jurisdiction on the basis of the defective processes.
{HELD - SUMMARY}:
(Unanimously Upholding The Preliminary Objection And Striking Out The Appeal)
The facts in brief, are as follows: the land in dispute formerly formed part of the land owned by one Aige, a Yoruba man and native of or an indigene of Ikorodu, Lagos State under customary law or native law and custom. On his death intestate, the property devolved on his children as family property. At some time later, the family decided to partition the family property at Aige family and allotted the land in dispute to one of the descendants of Aige by name Chief T.K. Dada. After his death, the family conveyed by deed of grant the said parcel of land to:
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1
Originating process – Determination of validity of and need for validity The Supreme Court has consistently held that the validity of originating processes in a proceeding before a court is a fundamental and necessary requirement for the competence of the suit. Failure to commence a suit with a valid writ and/or statement of claim goes to the root of the action since the conditions precedent to the exercise of the court's jurisdiction would not have been met to duly place the suit before that court.
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2
Bindingness of previous decisions The Supreme Court remains bound by its previous decisions where the facts and the laws considered in the earlier cases are the same or similar in the cases being subsequently determined.
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3
Legal Practitioners act and Signing of processes by legal practitioners The purpose of Sections 2(1) and 24 of the Act is to ensure that only legal practitioner whose name is on the roll of this court should sign court processes ...
The words employed in drafting Sections 2(1) and 24 of the Act are simple and straight forward. The literal construction of the law is that legal practitioners who are animate personalities should sign court processes and not a firm of legal practitioners which is inanimate and cannot be found in the roll of this court.
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4
Processes not signed by legal practitioner but by law firm – effect on suit Learned Appellant/Respondent's counsel has made similar suggestions considered by the Supreme Court, that since the non-signing of Exhibits SKYE 1 and 3 are lapses on the part of counsel, the Latter's sin should not be visited on the litigant; that to allow adjectival provisions stultify proceedings is to enthrone technicality, and that finding merit in Respondent's objection that has not been raised timeously will occasion miscarriage of justice. The decision of the Supreme Court in First Bank Plc. and Anor. V. Alhaji Salmanu Maiwada, has addressed all these questions.
That having found that Exhibits SKYE 1 and 3 have not been signed by a legal practitioner as required by both the rules of the trial court and extant provisions of the Legal Practitioners Act, the two originating processes are, on the authorities, fundamentally defective and incapable of initiating any competent action. Suit No. LD/1850/2005 purportedly commenced by the defective originating processes being incompetent is incapable of giving rise to a competent appeal.
