BUSINESS MEDIA LIMITED v. RADIX CAPITAL PARTNERS LIMITED

BUSINESS MEDIA LIMITED v. RADIX CAPITAL
PARTNERS LIMITED
CITATION: (2014) LPELR-23005(CA)
In The Court of Appeal
(Lagos Judicial Division)
On Tuesday, the 3rd day of June, 2014
Suit No: CA/L/256/2011
Before Their Lordships
JOSEPH SHAGBAOR IKYEGH
CHINWE EUGENIA IYIZOBA
SAMUEL CHUKWUDUMEBI OSEJI
Justice, Court of Appeal
Justice, Court of Appeal
Justice, Court of Appeal
Between
BUSINESS MEDIA
Appellant
LIMITED
And
RADIX CAPITAL
PARTNERS LIMITED
RATIO DECIDENDI
1
Respondent
1 PRACTICE AND PROCEDURE - SIGNING
OF COURT PROCESSES: Whether a Court
process not signed by a qualified legal
practitioner will be deemed incompetent and
render the entire proceedings a nullity
"Order 6; rule 1 of the High Court of Lagos
State (Civil procedure) Rules of 2004 then in
force provided that: Originating process shall
be prepared by a claimant or his legal
practitioner and shall be clearly printed on
opaque foolscap size paper of good quality. A
legal practitioner is defined in S. 24 of the
Legal Practitioner Act, 2004 as A person
entitled in accordance with the provisions of
this Act of practice as a barrister and solicitor
either generally or for the purposes of any
particular office or proceedings. It is not in
doubt that the writ of summons at page 2 of
the record of appeal signed by an unidentified
person for ADENIYI ADEGBONMIRE OF ALUKO
& OYEBODE fell foul of the above quoted laws.
There is no evidence that whoever signed the
process is a legal practitioner. It is settled law
that whenever such occurs the originating
process is deemed incompetent and the court
is deprived of jurisdiction to hear the matter.
See Okafor v Nweke (2007) 10 NWLR (Pt
1042) 521 and N.N.B Plc. v Denclag Ltd
(2005) 4 NWLR (Pt 916) 549 at 502 - 3? Para
F-B; Akingbehin v Thompson (2008) 6 NWLR
(Pt 1083) 270 @ 279; Sule v Nig. Cotton
2
Board (1985) 2 NWLR (Pt 5) 17; Lagos State
v Dosunmu (1989) 3 NWLR (Pt. 119) 552;
Awoyemi v Fasuan (2006) 13 NWLR (Pt 996)
86 at 107 para A - B." Per IYIZOBA, J.C.A.
(Pp. 8-9, paras. E-D) - read in context
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering
the Leading Judgment): By a writ of summons
dated 13/10/09, filed on 15/10/09 and signed for
ADENIYI ADEGBONMIRE OF ALUKO & OYEBODE by
an unidentified signature the Respondent as
Claimant in the High Court of Lagos State in the
Lagos Judicial Division claimed against the
Appellant as Defendant as follows:
(i) The sum of N10,308,990.00 (Ten Million, Three
Hundred and Eighty Thousand, Nine Hundred and
Ninety Naira) only being money due and owing to
the Claimant from the Defendant together with
interest at the rate of 30% per annum from the
20th day of July, 2009 until judgment and
thereafter at the rate of 20% per annum until the
final liquidation of the judgment debt and costs.
(ii) N2,000,000.00 (Two Million Naira) only, being
costs of this action.
The Claimant filed along with the writ the normal
processes usually front loaded and a motion for an
order entering final judgment against the
defendant/respondent as per the writ of summons
3
and statement of claim on the ground that the
defendant/respondent has no defence to the claim
of the claimant. Upon service of the processes, the
defendant filed his own processes and a written
address showing cause why leave should be
granted to her to defend the action in conformity
with Order 11 Rule 4 of the High Court of Lagos
State (Civil Procedure) Rules 2004.
Background facts
The appellant is a new publishing media outfit
engaged by the respondent to run certain
advertisements in its publication as part of the
latter's sponsorship of a regular Financial Times
segment in the appellant's publication. The
respondent paid to the appellant the sum of
N12,375,000.00 being the annual payment for the
advertisement. The respondent delivered to the
appellant the nature and content of the advert
which it wanted placed on its behalf by the
appellant as agreed. After some of the adverts were
run less than a month later, the respondent
claimed that it was dissatisfied with the content of
the adverts and colours thereof as placed by the
appellant pursuant to the contract and ordered the
appellant to place no further adverts until a
resolution of matters. Rather than resolve same,
the respondent demanded a refund of the
consideration paid. The appellant maintained that it
had discharged its obligations as contracted and the
respondent merely frustrated further performance
of the contract upon an after-thought. During
4
subsequent contacts to amicably resolve the
dispute, the appellant wrote a letter dated June 17,
2009 wherein the appellant purportedly admitted
its indebtedness to the respondent. It is the
contention of the appellant that the letter was
written in the course of negotiations and was issued
without prejudice; that it was merely a statement
of the figure left unexpended after deduction of the
amount spent on each advert strip and did not
include the sum allegedly paid by the appellant to
Financial Times Ltd as syndication fees.
The learned trial Judge, Olokoba J. after hearing
the parties on the motion by the claimant for
summary judgment held as follows:
"There being no valid or reasonable defence to the
claim of the claimants, the prayer contained in the
motion paper of the applicant dated 13th day of
October 2009 seeking summary judgment in the
case is granted to the following extent:
1. The defendant shall pay to the claimant the sum
of N10,308,990.00 (Ten Million, Three Hundred and
Eighty Thousand, Nine Hundred and Ninety Naira)
as money due and owing to the claimant.
2. The claim for interest from the 20th day of July
2009 until judgment is dismissed as nothing
warrants it from the transaction between the
parties.
3. The defendant shall pay to the claimant interest
on the judgment sum at the rate of 10% per
annum from the date of this judgment until sum is
finally liquidated.
5
Cost of N200,000.00 is awarded to the claimant
Dissatisfied with the above decision, the Appellant
filed a Notice of Appeal against the judgment on
the 6th day of July, 2010. He subsequently
obtained the leave of the Court on the 18th of
April, 2013 to raise and argue fresh issues on
appeal and to amend its Notice of Appeal in line
with the fresh issues sought to be argued.
From the grounds of appeal in the amended notice
of appeal, the appellant distilled two issues viz:
1. Whether the action in the court below was
commenced in accordance with statutory
prescription; and
2. Whether the lower court was correct when
it relied on a 'without prejudice' document to
enter summary judgment of the respondent.
The respondent adopted the issues formulated by
the Appellant as set out above.
ISSUE 1:
Whether the action in the court below was
commenced in accordance with statutory
prescription.
APPELLANT'S ARGUMENTS:
The contention of the appellant on issue 1 is that
an examination of the Writ of Summons by which
the action was commenced in the lower court shows
that the writ was signed by a person who was not a
legal practitioner. Counsel submitted that an
examination of the reverse side of the writ of
6
summons issued to commence the action in the
court below at p. 2 of the records of appeal
revealed that someone purportedly executed same
for Adeniyi Adegbonmire of Aluko & Oyebode.
Counsel cited Order 6, rule 1 of the High Court of
Lagos State (Civil Procedure) Rules of 2004 then in
force and S. 24 of the Legal Practitioner Act, 2004
and submitted that a writ of summons is
undoubtedly an originating process which the rules
of the lower court require to be executed by a legal
practitioner. Consequently, the writ having been
signed otherwise than as mandated by legal
prescription was invalidly issued and the lower
court lacked the necessary jurisdiction over the
matter. Counsel relied on the Supreme Court case
of SLB Construction Ltd v. NNPC (2011) 9
NWLR (Pt 1252) 317 where it was stated that an
originating process signed by a person who can't be
described as a legal practitioner is caught by a
fundamental vice. Counsel further referred to Peak
Merchant Bank Plc v. NDIC (2011) NWLR (Pt
1261) 253, @ 262D where this court held that
"A notice of appeal is an originating process which
activates the jurisdiction of this court...It is my firm
view therefore that the non-disclosure of the
identity of the person who physically signed the
notice of appeal on behalf of the appellant's counsel
is not a mere irregularity as contended by
respondent's counsel but a fundamental error."
Learned counsel for the appellant finally submitted
on the authority of Madukolu v. Nkemdilim 1962
7
2 NSCC 374 at 379 - 80 that the action was not
initiated by due process of law and did not fulfill a
condition precedent for the exercise of the court's
jurisdiction. He urged the court to resolve this issue
in favour of the appellant and to allow this appeal.
RESPONDENT'S ARGUMENTS:
Learned counsel for the Respondent conceded that
the appellant is right in his contention that the writ
of summons upon which the suit before the lower
court was instituted was defective in form and thus
robbed the lower court of jurisdiction ab initio to
hear the claim much less give judgment in respect
of it. He urged the Court to set aside the judgment
of the lower court for want of jurisdiction so as to
enable it re-file the said action before the lower
court before the cause of action becomes statute
barred.
RESOLUTION:
Order 6; rule 1 of the High Court of Lagos State
(Civil procedure) Rules of 2004 then in force
provided that:
Originating process shall be prepared by a claimant
or his legal practitioner and shall be clearly printed
on opaque foolscap size paper of good quality.
A legal practitioner is defined in S. 24 of the Legal
Practitioner Act, 2004 as
A person entitled in accordance with the provisions
of this Act of practice as a barrister and solicitor
either generally or for the purposes of any
particular office or proceedings.
8
It is not in doubt that the writ of summons at page
2 of the record of appeal signed by an unidentified
person for ADENIYI ADEGBONMIRE OF ALUKO &
OYEBODE fell foul of the above quoted laws. There
is no evidence that whoever signed the process is a
legal practitioner. It is settled law that whenever
such occurs the originating process is deemed
incompetent and the court is deprived of
jurisdiction to hear the matter. See Okafor v
Nweke (2007) 10 NWLR (Pt 1042) 521 and
N.N.B Plc. v Denclag Ltd (2005) 4 NWLR (Pt
916) 549 at 502 - 3? Para F-B; Akingbehin v
Thompson (2008) 6 NWLR (Pt 1083) 270 @
279; Sule v Nig. Cotton Board (1985) 2 NWLR
(Pt 5) 17; Lagos State v Dosunmu (1989) 3
NWLR (Pt. 119) 552; Awoyemi v Fasuan
(2006) 13 NWLR (Pt 996) 86 at 107 para A B.
The Respondent having conceded the issue, nothing
more needs to be said, other than to declare the
proceedings of the lower court a nullity. The appeal
consequently succeeds. It is allowed. The
proceedings of the trial court presided over by
Olokoba J. in the High Court of Lagos State in Suit
No LD/1682/2009 are hereby declared a nullity.
The judgment is set aside for lack of jurisdiction.
This issue having disposed of the matter, it is
needless considering issue 2 of the Appellant's brief
of argument. I make no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree
9
with the judgment prepared by my learned brother,
Chinwe
Eugenia
Iyizoba,
J.C.A.,
that
the
unidentified person that signed the writ of
summons for "Adeniyi Adegbonmire of Aluko and
Oyebode" that originated the case at the court
below rendered the initiation of the case
incompetent and the entire proceedings that
emanated from it a nullity. See in addition to the
cases cited in the lead judgment the cases of
Oketade v. Adewunmi (2010) 8 NWLR (Pt.
1195) 63, Adeniyi v. Yaro (2013) 3 NWLR (Pt.
1342) 625 and Ministry of Works and
Transport, Adamawa State and Ors. v. Yakubu
and Anor. (2013) 6 NWLR (Pt. 1351) 481
For the reason rendered above and for the
elaborate reasons contained in the lead judgment I
too would allow the appeal and abide by the
consequential orders contained in the lead
judgment.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: My
Lord, C. E. Iyizoba JCA has afforded me the
privilege of a prior perusal of the lead judgment
just delivered.
The reasoning and conclusions contained therein
are hereby adopted as mine and I also abide by the
consequential orders made in the lead judgment
including the order as to costs.
10
Appearances
O. Omolodun Esq.
For Appellant
Ngo-Martins Okonmah
For
Respondent
11

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