[Court Process] – [Signed by Unknown Person]- [Effect of]
ISSUES FOR DETERMINATION:
- The validity of a court process signed by an unknown person for a known person.
- Whether there are exceptions when the court can decide on an issue raised suo motu.
FACTS:
The respondents, by a Charter party on the “Shell Time 3” Form, dated 1/11/1995, agreed to charter a Tanker Vessel – “MT Venture”, to the appellant for the carriage of petroleum products from the coastal refineries to places within Nigeria and the West African sub-region and any other locations named by the Pipelines and Products Marketing Company [PPMC] in Europe/Africa/Asia and South America.
By an Addendum dated 2/12/1996, the Charter party was amended by substituting “MT Venture” with another Vessel – “MT Dignity”, and the effective date for the said substitution was 1/8/1996
Upon the determination of the Charter party, respondents submitted their final invoices that included claims for interest on hire payments, which interest they alleged began to accrue after 90 days from the due date of payment, at the rate of 12% per annum The appellant disputed their entitlement to interest in view of the provision of Clause 15 of the Charter party, which says that:
“In default of punctual or regular payment as herein specified, the owner shall notify the Charterers whereupon the Charterers shall make payment of the amount due within forty-five (45) days of the receipt of notification from the owner, failing which the owner shall have the right to withdraw the vessel from the service of the Charterer. Charterers shall not be liable to pay owners interest accruing on any delayed payment as above.”
But the respondents contended that they are entitled to interest payments under Clause 18 of the Charter party, which states that:
“Notwithstanding any provision to the contrary in this Charter, owners hereby agree to 90 days credit in the payment of Charter fees free interest.”
The dispute was referred to arbitration in the manner agreed to in the Charter party contract, and three Arbitrators were appointed. The Partial Award made by the said Arbitrators on 31/3/2004 was:
“Only concerned with the issue whether the Charter party signed by the Parties in dispute in this arbitration, taken as a whole, and in particulars, as provided for in the Printed Clause 8 and Rider Clauses 15 and 18, allows the Claimant to charge interest on unpaid hire.”
The Arbitrators, by a split decision of 2-1, ruled therein as follows:
“That the Claimants are entitled to claim interest on unpaid hire after the expiry of 90 days interest free period from the Respondents.”
The appellant then filed the Application at the Federal High Court, which led to this appeal, praying that the said Award be set aside.
In his ruling delivered on 6/2/2006, the learned trial Judge, Okeke, J., held that the Federal High Court “has no jurisdiction to set aside the Arbitral Award”; and he refused the said Application. The Court of Appeal resolved all the three issues in favour of the respondent and dismissed the appeal. The Supreme Court also dismissed the appeal.
HELD:
On whether the Court of Appeal was right to raise an Issue suo motu and decide same without hearing from Parties:
The Court of Appeal was right to raise an issue suo motu and decide same without hearing from Parties because the issue in question touches on jurisdiction
On the validity of a process filed by an unknown person:
That the originating process filed by an unknown person for Seyi Sowemimo, SAN was dead at the point of filing and there was no remedy that could bring it to life. Therefore, the suit filed by the appellant at the trial Court was grossly incompetent, and the Court of Appeal was right to hold that the loophole renders the entire proceedings
NIGERIAN CASES REFERRED TO IN THE JUDGMENT:
- Shitta Bey v. F.P.S.C (1981)/SC4D
- Ebba v. Ogodo (1984) NSCC255/265
- Saude v. Abdullahi (1989)4 NWLR (Pt. 116) 378/420
- RTEAN v. Nurm (1992) NWLR (Pt. 224) 381/392
- Adeyemi v. Ike-Oluwa (1993) 8 NWLR (Pt. 309) 27 AT 40
- Imah v. Okogbe (1993) 9NWLR (Pt. 316) 159AT 178.
- Akpunonu v. Bekaert Overseas (1995) 5 NWLR (Pt. 393) 42/64
- Olubode v. Salawu (1985) 2 NWLR (Pt. 7) 282
- Usman v. Garke (1999) 1 NWLR (Pt. 587) 466/482
- Agbareh v. Min-Tra (2008) 2 NWLR (Pt. 1071) 378
- Oje v. Babalola (1991) NMR (Pt. 185) 267.
- Adegbuyi v. APC (2014) LPELR-24214 (SC)
- Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282 SC
- Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521
- SLB Consortium v. NNPC (2016) 9 NWLR (Pt. 1252) 317
- Tsalibawa v. Habiba (1991) 2 NWLR (Pt. 174) 461.
- Ministry of W. & T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481SC
NIGERIAN STATUTES REFERRED TO:
- Section 2(1) of the Legal Practitioners Act, Cap L11, 2004
AUGIE, J.S.C. (Delivering the Leading Judgment):
Dissatisfied with the judgment of the High Court, the Appellant appealed to the Court of Appeal, wherein it distilled three issues for Determination from its four Grounds of Appeal, which the Court of Appeal adopted; they are:
- Whether the manner of construction of the relevant provisions of the Charter party is in conformity with the established principles of construction or the canons of interpretation recognized by law?
- Are the Arbitrators guilty of a misconduct arising from a rewriting of the contract which has resulted in a miscarriage of justice?
- Whether the partial award is in consonance with the statutory requirement stipulating for a reasoned award and/or in conformity with the demands of transparency and/or a decision to refer the matter to a Tribunal of three?
The Court of Appeal in its judgment delivered on 7/2/2014, resolved all the three Issues in favour of the respondent, and proceeded to dismiss the Appeal. However, it went on to observe as follows:
“By Section 24 of the Legal Practitioners Act Cap L 2004, Legal Practitioner is defined as … Section 2(1) of the Act states thus: “Subject to the provisions of this Act, a person shall be entitled to practice as a Barrister and Solicitor if and only if his name is on the roll.”
A cursory look at the originating process shows that the process ex-facie is incompetent because it was not signed by a legal practitioner representing the applicant or a person known to law. The originating process signed on 27/7/2004 and dated same day was signed by an unnamed person, for and on behalf of SEYI SOWEMIMO, SAN. More so it cannot be ascertained whether the signatory is a legal practitioner or not. This makes the Suit at the lower Court grossly incompetent. I find it curious that the learned counsel for the respondent did not observe this lacuna, even the learned trial Judge. The loophole renders the entire proceedings at the lower Court null and void and of no effect whatsoever and/so declare. Still dissatisfied, the appellant filed a Notice of Appeal. The Supreme Court in dismissing the appeal held:
“The Parties skirted around the Issue without saying anything about the Motion on Notice, filed on 27/7/2004 at the trial Court, which is signed by an unknown person” for Seyi Sowemimo, SAN.
The said Application is the originating process in this case, and it is settled that such a process signed by an unknown person, is incompetent and incurably bad. See SLB Consortium Ltd. v. NNPC (supra), wherein this Court made it very clear that “once it cannot be said, who signed the process, it is incurably bad.” This is so because a signature identifies a document as an act of a particular person and without a signature, the document cannot pass as the act of such an unnamed person; it is, therefore, totally useless. See Tsalibawa v. Habiba (1991) 2NWLR (Pt. 174) 461.
The point being made is that the Court of Appeal cannot close its eye to an originating process that is ex-facie incompetent, and it is settled that it has inherent power to strike it out on that ground. See Anadi v. Okoli (1977) NSCC (Vol. 11) 117. To make myself clear, I am not saying that the Court of Appeal was right to raise the said Issue suo motu and decide same without hearing from Parties. What I am saying is that faced with the originating process filed by the appellant at the trial Court which is incompetent and incurably bad, the Court of Appeal was standing on firm ground when it declared the proceedings at the trial Court null and void, because the Issue in question touches on jurisdiction, which is aptly described as the pillar upon which the entire case stands. In effect, once it is shown that the Court lacks jurisdiction, the foundation of the case is not only shaken, the case crumbles.
In other words, there is no case before the Court for adjudication. See Ministry of W. & T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481SC, where this Court very aptly observed as follows:
“The fatal effect of the signing of an originating process by a la w firm is that the entire Suit was incompetent ab initio. It was dead at the point of filing. This highlights the painful realities that confronts a litigant when counsel fails to Sign processes as stipulated by law. The originating process, as in this case, is fundamentally defective and incompetent. It is inchoate and legally non-existent.”
In this case, there is no question that the originating process filed by an unknown person for Seyi Sowemimo, SAN was dead at the point of filing and there was no remedy that could bring it to life. The Suit filed by the appellant at the trial Court was grossly incompetent, and the Court of Appeal was right to hold that the loophole renders the entire proceedings therein null and void. Consequently, this appeal must be and is hereby dismissed.
LIST OF COUNSEL:
O. S. Sowemimo, SAN, Remi Coker, Esq. – for the Appellant.
Victor Ogude, Esq., Hycinth Uba, Esq., Kehinde Wilkey, Esq. – for the Respondent