MAIN JUDGMENT

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the Ruling of the High Court of Kano State in Suit No. K/660/2002 delivered by Honourable Justice Nuhu Galadanci on the 9th of February, 2009. The Respondent, as plaintiff, commenced an action against the Appellant, as defendant, under the Undefended List Procedure in the High Court of Kano State and his claims was for the sum of N563,000.000. The Appellant filed a notice of intention to defend accompanied with [his] affidavit of facts. The lower Court heard the matter under the Undefended List and entered judgment in favour of the Respondent in the sum of N28,000.00 and it transferred the balance of the claim to the general cause list and ordered the parties to file pleadings.

The Respondent filed a motion for extension of time to file his statement of claim and, consequent on the granting of which, his statement of claim was deemed proper. The Appellant filed a statement of defence in response. The matter proceeded to trial and the Respondent called his witnesses and closed his case and the Appellant opened his defence. In the course of presenting his defence, the Appellant filed a motion on notice dated the 2nd of April, 2008 and in which he prayed the lower Court to strike out the suit on the ground that the motion for extension of time and the statement of claim were improperly signed by a law firm and not by a legal practitioner. The lower Court took arguments on the application and it dismissed same in a considered ruling delivered on the 9th of February, 2009. The records of appeal show that at the conclusion of the ruling, Counsel to the Appellant was dissatisfied with the ruling and he applied orally for leave to appeal. The records show that the request for leave to appeal was granted by the lower Court. The Appellant caused to be filed a notice of appeal dated the 17th of February, 2009 and it contained two grounds of appeal.

In compliance with the Rules of this Court, Counsel to the Appellant filed a brief of arguments dated the 28th of July, 2009. The Respondent filed a notice of preliminary objection to the appeal and it was dated the 29th of November, 2011 and it was predicated on two grounds. Counsel to the Respondent presented a brief of arguments dated the 29th of November, 2012 and filed on the 3rd of December, 2012 and this was sequel to an order of this Court extending the time for the Respondent to file his brief of arguments. The brief of arguments encompassed the arguments on both the notice of preliminary objection and the substantive appeal. Counsel to the Appellant filed a reply brief of arguments to the notice of preliminary objection and it was dated the 16th of January, 2013. At the hearing of the appeal, this Court took the arguments on the notice of preliminary objection and thereafter Counsel to the parties relied on and adopted the arguments on the substantive appeal in their respective briefs of arguments.

The Respondent raised two contentions on his notice of preliminary objection and these were:

i.     Whether the leave of court to appeal an interlocutory appeal can be obtained orally without the formal filing of a motion supported by an affidavit.
 

ii.    Whether a notice of appeal filed against an interlocutory decision on the basis of the oral application and leave to appeal given by the lower Court is competent to activate the jurisdiction of the Court of Appeal to heat and determine such an appeal.

On the first contention, Counsel to the Respondent stated that by the provision of section 242 of the Constitution of the Federal Republic of Nigeria it is a mandatory requirement that every litigant that seeks to appeal an interlocutory decision of the lower Court must seek and obtain the leave to do so and that any appeal against such decision without obtaining the leave of either the lower Court or of this Court is incompetent and he referred to the case of Iro v. Christopher Echewendu & Sons (1996) 8 NWLR (Pt. 468) 629, amongst others. Counsel stated that section 14 (1) of the Court of Appeal Act also provides that an application for leave to appeal an interlocutory decision must be filed within fourteen days after the ruling and that the Courts have held that where the application for leave to appeal is not filed and decided within fourteen, days the lower Court will lose the power to entertain the application. Counsel stated the statute governing application for leave did not contemplate the possibility of the application being made orally, otherwise it would not have stipulated a time limit for filing same and that the filing of an oral application is unknown to our judicature. Counsel stated that the lower Court was not empowered and had no jurisdiction to grant an application for leave on an oral application and that as such the leave to appeal granted to the Appellant by the lower Court was made per incuriam and that the order was a nullity. Counsel said that the law views a null act as an event that never occurred, that never happened and he referred to the case of UAC v. Mcfoy (1962) AC 152. Counsel urged this Court to uphold this contention.

Using the above arguments as a base, Counsel stated, on the second contention, that since the order of leave to appeal granted on the oral application of the Appellant was a nullity, this appeal is incompetent and deserves to be struck out. Counsel stated that the issue raised cannot be treated as a mere technicality because the practice of law should not be regarded as anything goes and that where a Counsel has committed a fundamental error he must be stopped from taking refuge under the clich of mere technicality. Counsel urged this Court to uphold the contention and strike out the appeal.

Counsel to the Appellant predicated his response to the notice of preliminary objection on three grounds; namely:

i.    Whether by virtue of the relevant laws, the Appellant was under any legal obligation to seek for and obtain the leave of the lower Court or that of this Honourable Court before filing his notice of appeal.
 

ii.     Whether the Appellant sought for and obtained the leave of Court as required by section 242 (1) of the 1999 Constitution of the Federal Republic of Nigeria before filing and serving the notice of appeal.
 

iii.    Whether the Respondent can at this stage raise an objection to the propriety or otherwise of the manner in which the leave of Court was obtained by the Appellant.

On the first ground, Counsel stated that it was incorrect that all appeals against an interlocutory decision of the lower Court must be with the leave of Court and that section 241, (1) (b) of the Constitution recognizes that an appeal would lie as of right where the grounds of appeal are on issues of law alone and he referred to the case of Minister, Federal Capital Territory v. Abdullahi (2010) All FWLR (Pt. 507) 179, amongst others. Counsel reproduced the two grounds of appeal on the notice of appeal and stated that they raised questions of law alone and that as such there was no need for the Appellant to have sought for leave to appeal before filing the appeal and that the appeal was competent.

On the second ground, Counsel stated that, assuming that there was indeed a need to obtain leave to appeal, section 242 (1) of the Constitution only requires an appellant to obtain leave and it did not say that the leave cannot be obtained orally and that as such the leave to appeal obtained from the lower Court on the oral application of Counsel was in compliance with the constitutional provision. Counsel referred to the meaning of leave as defined in the case of SPDC Nig Ltd v. Katad Nig Ltd (2005) All FWLR (Pt. 263) 675 and stated that the objection raised by the Respondent was a mere technicality which this Court was enjoined to discountenance.

On the third ground, Counsel stated that on the 9th of February, 2009 when the Appellant made the oral application for leave to appeal, Counsel to the Respondent was present in Court and, when asked by the lower Court for his reaction to the oral application, Counsel said he had no objection and that it was thereupon that the lower Court proceeded to grant the application as prayed. Counsel stated that having not objected to the procedure adopted by the Appellant in making an oral application for leave to appeal before the lower Court, the Respondent cannot be heard to complain on this appeal as he has not shown that he suffered any miscarriage of justice thereby and he referred to the case of Akpan v. State (2008) All FWLR (Pt. 420) 644, amongst others.

Counsel to the Appellant urged this Court to dismiss the notice of preliminary objection on these three grounds.

As, stated earlier, the records of proceedings of the lower Court for the 9th of February, 2009 show that at the conclusion of the ruling on the application of the Appellant, the Counsel to the Appellant was dissatisfied with the ruling and he applied orally for leave to appeal. The records show that the lower Court sought the reaction of the Counsel to the Respondent to the oral application and Counsel stated that he was not opposing the oral request and that thereupon the lower Court granted the request for leave to appeal as prayed for. This preliminary objection of the Respondent is in effect challenging the order made by the lower Court granting the Appellant leave to appeal. Counsel to the Respondent, in fact, submitted, in arguing the preliminary objection, that the leave to appeal granted to the Appellant by the lower Court was made per in curiam and was a nullity and should be treated as an event that never occurred, that never happened.

It is settled law that the only known and legitimate way or method of laying a complaint before a higher court or tribunal, to show grievances of an aggrieved party against a decision taken by an inferior court or tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision. The notice of appeal is the 'spinal cord' of an appeal. It is the foundation upon which an appeal is based - Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592, Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421, Dingyadi v. Independent National Electoral Commission (No. 1) (2010) 18 NWLR (Pt. 1224) 1.

An appellate Court cannot set aside a judgment or ruling of a lower Court against which there is no notice and grounds of appeal legally filed before it - Anah v. Anah (2008) 9 NWLR (Pt. 1091) 75. In the absence of an appeal against a judgment or order of Court, it remains inviolate for all time - Olawepo v. Security and Exchange Commission (2011) 16 NWLR (Pt. 1272) 122, Emeka v. Okadigbo (2012) 18 NWLR (Pt. 1331) 55, Duru v. Federal Republic of Nigeria (2013) 6 NWLR (Pt. 1351) 441.

The Respondent in the instant case did not appeal against the order of the lower Court granting the oral application of the Appellant for leave to appeal; rather he filed this notice of preliminary objection against it. The law is that he cannot do so. This point was directly made by the Supreme Court in Shell Petroleum Development Company of Nigeria Ltd v. Amadi (2011) 14 NWLR (Pt. 1266) 157 at 186 - 187 G-B where Rhodes-Vivour, JSC stated thus:

"On 8/7/10, the Court of Appeal granted the appellant/applicant leave to appeal to this court on grounds other than Law. Rather than appeal, learned counsel for the 1st, 2nd and 3rd sets of claimants/respondents filed this preliminary objection.

By the clear provisions of section 233 of the Constitution, a party dissatisfied with a decision of the Court of Appeal cannot challenge the decision by filing and arguing a preliminary objection. He can only challenge the decision by an appeal.

Leave granted on 8/7/10 by the Court of Appeal is inviolate and is still subsisting in the absence of an appeal. The preliminary objection on this issue is an abuse of process and is hereby dismissed..."

Additionally, Counsel to the Respondent was present in Court on the 9th of February, 2009 when the oral application for leave to appeal was made. Counsel did not object to the oral application as constituting an improper procedure, rather he consented to the application. So even assuming that the oral application was a wrong procedure, it is trite that where a party consented to a wrong procedure at the trial court and in fact suffers no injustice thereby, he cannot be heard to complain on appeal that a wrong procedure was adopted - Noibi v. Fikolati (1987) 1 NWLR (Pt. 52) 619 and Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187, Borishade v. Federal Republic of Nigeria (2012) 18 NWLR (Pt. 1332) 347 and Mu'azu v. Unity Bank Plc (2014) 3 NWLR (Pt. 1395) 512.

The Respondent has not canvassed that he suffered any injustice by reason of the leave to appeal granted.

The preliminary objection of the Respondent is inappropriate in the circumstances of this case and it is hereby dismissed.

On the substantive appeal, Counsel to the Appellants formulated two issues for determination. These were:

i.     Whether the learned trial Judge was right when he held that the motion on notice and statement of claim both dated the 26th of April, 2006 filed by the Respondent were in accordance with Order 5 Rule 12 (1) of the Kano State High Court (Civil Procedure) Rules 1988 and therefore had no defect whatsoever.

ii.     Whether the learned trial Judge was right when he refused to follow the case of Okafor v. Nweke (2007) All FWLR (Pt. 368) 1016.

In arguing the first issue for determination, Counsel to the Appellant stated that the gravamen of the motion on notice filed before the lower Court by the Appellant was that the motion on notice for extension of time to file pleadings and the statement of claim filed by the Respondent and both dated the 26th of April, 2004 were signed by Summit Law Firm and not by a legal practitioner and that the lower Court held that the processes so signed were not defective and were in accordance with the provisions of Order 5 Rule 12 (1) of the Kano State High Court (Civil Procedure) Rules 1988. Counsel reproduced the provisions of the Order 5 Rule 12 (1) and stated that they deal with the endorsements to be made on a writ of summons and have nothing to do with the filing of a statement of claim. Counsel stated that the appropriate order dealing with pleadings was Order 25 Rule a (1) of the Kano State High Court (Civil Procedure) Rules 1988 and that the wordings of this Order state that every pleading "shall be signed by a legal practitioner or by the party if he sues or defends in person." Counsel stated that construing the word "shall" in its natural and ordinary sense connotes command and the result would be that a pleading not signed by a legal practitioner would be declared incompetent. Counsel stated that the lower Court was thus in error when it relied on the provisions of Order 5 Rule 12 (1) of the Kano State High Court (Civil Procedure) Rules 1988 to hold that the processes in question were not defective.

On the second issue for determination, Counsel stated that the lower Court declined to follow the decision in Okafor v. Nweke supra saying that "striking out the whole suit amounts to injustice since the writ of summons which initiated the suit has not been challenged". Counsel stated that the substance of Okafor v. Nweke was that any court process not signed by a person qualified to practice law and whose name was on the roll of call of lawyers in accordance with the provisions of the Legal Practitioner's Act was null and void. Counsel stated that Summit Law Firm that signed the processes in issue was not such a legal practitioner and that as such, the processes were incompetent null and void and that since the process in question was a statement of claim which supersedes the writ of summons, the lower Court ought to have followed the decision in Okafor v. Nweke and should have struck out the suit. Counsel also referred to the case of NNB Plc v. Denclag Ltd (2005) 4 NWLR (Pt. 916) 549 wherein he stated that the Court of Appeal also held that a court process not signed by a legal practitioner was fundamentally defective and that such a process cannot be cured by an amendment and that as such the provisions of Order 25 Rules 20 and 28 of the Kano State High Court (Civil Procedure) Rules 1988 were inapplicable in the circumstances. Counsel urged this Court to resolve the two issues for determination in favour of the Appellant.

In response, Counsel to the Respondent also formulated two issues for determination and these were:

i.      Whether the learned trial Judge did not reach a right decision in refusing to strike out the suit.

ii.     Whether in the circumstance of this case and the specific prayer on the motion of the Appellant dated 2nd of April, 2008, Okafor v. Nweke (2007) All FWLR (Pt. 368) is not distinguishable from this case.

On the first issue for determination, Counsel conceded that the motion on notice for extension of time to file a statement of claim and the statement of claim filed thereby were signed in the name of a law firm and not in the name of a legal practitioner and he also conceded that the two processes were defective on the authority of the decision in Okafor v. Nweke, but he stated that the writ of summons by which the suit before the lower Court was initiated did not suffer from such defect and was not challenged by the Appellant and that as such the defect in the motion on notice and in the statement of claim will only affect those processes and cannot relate back to make the writ of summons defective. Counsel stated that it was on the basis of the writ of summons and the affidavit filed under the Undefended List Procedure that the lower court assumed jurisdiction in this matter and that the intervening processes such as the motion on notice and statement of claim cannot make the entire suit incompetent and liable to be struck out. Counsel conceded that the reliance placed by the lower Court on the provisions of Order 5 Rule 12 (1) of the Kano State High Court (Civil Procedure) Rules 1988 in holding that the processes were not defective was wrong, but he stated that the decision not to strike out the suit was correct and that where the decision of a trial Court is right but the reasons are wrong, an appellate Court should not interfere with the decision and he referred to the cases of A.G., Bendel State v. A.G., Federation (1982) 3 NCLR 1 and Ekpo v. State (2003) 17 NWLR (Pt. 846) 392.

On the second issue for determination, Counsel stated that the essence of the decisions in Okafor v. Nweke and NNB Plc v. Denclag Ltd were that where a court process is not signed by a legal practitioner it is liable to be struck out and that the cases did not decide that any suit where such a process is filed must be struck out. Counsel stated that unless the process in question is an originating process by which the action was commenced or sought to be commenced, as in Okafor v. Nweke and NNB Plc as Denclag Ltd, the filing of such a defective process need not entail the striking out of the entire suit. Counsel stated that the writ of summons by which the suit before the lower Court was initiated did not suffer from such defect and was not challenged by the Appellant and that the principle that the statement of claim supersedes the writ of summons is in relation to the endorsement of the claims and not to the legal effect of a writ being the process by which an action is commenced in Court and he referred to the case of Eze v. George (1993) 2 NWLR (Pt. 273) 86, amongst others. Counsel stated that even if the motion on notice and the statement of claim in question are struck out, the suit itself commenced by a proper of writ of summons must survive and that as such the instance case is distinguishable from Okafor v. Nweke.

As stated earlier, the Respondent commenced this action under the Undefended List Procedure by filing a writ of summons supported by an affidavit of facts. The lower Court entered partial judgment and transferred the other part of claims to the general cause list and directed the parties to file pleadings. It was not in contest in this matter that the writ of summons was appropriately signed by a person registered to practice as a legal practitioner. The Respondent filed a motion on notice for extension of time to file his statement of claim and, consequent on the grant of which, his statement of claim was deemed proper. It was not in contest that both the motion on notice and the statement of claim were signed by Summit Law Firm, a person not registered to practice as a legal practitioner. In its ruling on the application of the Appellant seeking to strike out the whole suit on basis that the motion on notice and the statement of claim were defective, the lower Court held that the processes were not defective in that they were endorsed in accordance with the provisions of Order 5 Rule 12 (1) of the Kano State High Court (Civil Procedure) Rules 1988 and that it would amount to injustice to strike the entire suit since the writ of summons which initiated the suit was not challenged. The question arising in this appeal is whether the decisions of the lower Court were correct.

On the issue of whether or not the motion on notice and the statement of claim were defective having been signed by a law firm and not by a person enrolled as a legal practitioner, the law on the point is beyond peradventure.

The law on the point by a long line of Supreme Court decisions is that the motion on notice and the statement of claim are nullities and are void ab initio.

The Supreme Court has stated that the issue of signature by a registered legal practitioner is a requirement of substantive law, and not of procedural law, and thus it cannot be waived and it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by such signing of the court process and that it is an issue that can be raised even at the Supreme Court for the first time. All proceedings conducted on the strength of such statement of claim are also null and void - Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521, Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63, SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) 317, Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt. 1346) 1, First Bank of Nigeria Plc v. Maiwada & Ors (2013) 5 NWLR (Pt. 1343) 444, Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570, Minister of Works and Transport, Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481 and Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19.

The lower Court was thus in complete error when it held that the motion on notice and the statement of claim were not defective. In concluding on this issue this Court considers it necessary to correct a misconception contained in the submission of the Counsel to the Appellant that such a defective process was not amenable to correction by an amendment. This perception is incorrect as the Supreme Court has held in the Unity Bank Plc v. Denclag Ltd (2012) 18 NWLR (Pt. 1332) 293 that such a process can be amended to remedy the defect.

On the second issue of whether the lower Court was right in not striking out the suit, it is clear from all the case law authorities that it is the particular court process that is affected by the defect, i.e. that is not signed by a legal practitioner registered to practice law, that is null and void. The defective court process will only affect the entire suit and make it liable to be struck out if it is the originating process, such as the writ of summons, originating summons, notice of appeal, etc or the process by which the commencement of a suit is sought to be ignited, such as a motion on notice seeking extension of time to appeal and to file notice of appeal. The defect in such a court process snuffs the life out of the entire suit because once it is struck out there is nothing to predicate the suit upon. Where, however, the court process in question does not fall into either of these categories, and it is only an interlocutory process filed in the course of a suit, it will not affect the entire suit and it is the particular court process that will be struck out as null and void, and not the suit. And this is just in accord with common sense.

In the instant case, the action was commenced by a writ of summons. The writ of summons was signed by a legal practitioner registered to practice law; it is not defective and it was not challenged by the Counsel to the Appellant. It is the motion on notice for extension of time to file a statement of claim and the statement of claim filed thereupon that were affected by the defect. It is apparent that where the motion on notice and the statement of claim are taken out of the equation, it will still remain the writ of summons by which the suit was commenced. The argument of Counsel to the Appellant that since the statement of claim supersedes the writ of summons then the striking of the statement of claim must make the entire suit liable to be struck is rather opportunistic and a mischievous application of the principle. The principle of supersession of a writ of summons by a statement of claim stipulates that if a relief is claimed in the writ of summons but not in the statement of claim, it shall be deemed to have been abandoned, while a relief endorsed in the statement of claim which is not in the writ of summons subsists. This is as far as the principle goes; it applies only in respect of the endorsement of the claims of a plaintiff. It does not enable a plaintiff to alter the parties to the action or to canvass a different cause of action in the statement of claim, without obtaining necessary court orders - Eze v. George (1993) 2 NWLR (Pt. 273) 86 and Owena Bank Plc v. Olatunji (2002) 12 NWLR (Pt. 781) 259. The filing of a statement of claim does not decree the death of the writ of summons by which the action is commenced. The defect in the motion on notice and the statement of claim of the Respondent, in the instant case, did not make the entire suit liable to be struck out. The decision of the lower Court in not striking out the suit was thus correct.

In conclusion, this Court finds some merits in this appeal and it is hereby allowed in part. The motion on notice for extension of time to file a statement of claim and the statement of claim filed in consequence thereof by the Respondent in the lower Court and both dated the 26th of April, 2006 are hereby struck out together with the proceedings conducted by the lower Court on the basis of the statement of claim. The case file is hereby remitted to the lower Court for fresh and further orders in the matter. Each party shall bear his respective cost of the appeal. These shall be the orders of the Court.

ABDU ABOKI, J.C.A.:

The copy of the lead judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA was made available to me and I agree with the conclusion reached therein that the appeal should be allowed in part. I abide by the consequential orders as to costs in the lead judgment.

ITA G. MBABA, J.C.A.:

I agree with the reasoning and conclusions of my learned brother H. A. O. Abiru, JCA. I abide by the consequential orders in the lead judgment.