The Propriety Of An Unsigned Writ Of Summons By Counsel – By Amauche Onyedum-Anya
It has become traditional for Counsel to sign a writ even when no provision is made under the rules of court or practice direction to sign a writ by Counsel. This act of inevitably signing a writ of summons was influenced by Order 3 Rule 12(3) of the Federal High Court Rules 2019 and Order 2 Rule 5 of the FCT High Court(Civil Procedure) Rules 2018, which reflects in the Civil Procedure rules of other States in Nigeria and under different provisions. This provision especially as embedded in Order 3 Rule 12(3) of the Federal High Court Rules 2019, applies to Originating Process not a Writ of Summons.
This then takes us to the difference between the Writ of Summons and originating process. Simplicita, while a Writ of Summons is one of the components for commencing an action in a civil proceeding as shown in Order 3 Rule 1 of the Federal High Court Civil Procedure Rules, 2019, an Originating Process is a series of a Writ of Summons and all the accompanying processes enumerated in Order 3 Rule 3(3) (a-f) of the Federal High Court Civil Procedure Rules, 2019.
The concordant expose of Order 3 Rules 4 and 12(3) of the Federal High Court Rules 2019, as well asAppendix 6, Form 1 on the General Form of writ of summons, evidenced that the draftsmen of the Rules of Court had the intent for the Registrar to sign the writ of summons, while the legal practitioner or the Plaintiff signs the accompanying Originating Processes in Order 3 Rule 3(3) (a-f) of the Federal High Court Civil Procedure Rules, 2019. It is for this reason that the said Form 1, has no provision for a contraption, rather what suffices are the name of legal practitioner or Plaintiff, the name of his law firm, his address and party he represents.
This therefore depicts that an unsigned Writ of Summons by Counsel of the Plaintiff, is still valid, having met the form so provided and duly signed and dated by the Registrar. This locus is buttressed in the unreported case of IGWEAJAH PIUS OGBONNIA VS. ZOTMANN MINING LIMITED & 3 0RS, in Suit No: FHC/ABJ/CS/320/2021, on the ruling delivered on the 27th of September,2022, at the Federal High Court 5, Abuja before Hon. Justice Inyang Ekwo.
To further dice up this nutty issue, recourse is made by extension on what amounts to signature. Must there be a contraption for a Writ of Summons to be validated? We answer in the negative while relying on the case of AIYEDUN v. REGISTRAR, UPPER AREA COURT ILORIN & ORS (2016) LPELR-41186(CA), on determining the acceptable manner of signing legal process(es) by Legal Practitioners. The Appeal Court held thus:
“It is important to point out that a process prepared and filed in a Court of law by a Legal Practitioner must be signed by the Legal Practitioner. And by the provisions of Federal High Court (Civil Procedure) RULES 2000, an originating Court process must be signed by the legal Practitioner or by a Plaintiff if he sues by himself. See ORDER 3, RULE 12 (3) THEREOF. By the wordings it is mandatory and not discretionary. The question in this circumstance of the Case is what suffices as signature? HOWEVER, in the REGISTERED TRUSTEE OF APOSTOLIC CHURCH, LAGOS AREA. v. RAHAMAN AKINDELE (1967) NMLR 263 in which, following the success of objection to the Application of the Appellants for registration as owners of some land, the firm of Solicitors of J.A. Cole & Cole filed a Notice of Appeal at the High Court, Lagos against the Ruling. In signing the Notice of Appeal, learned Counsel used his name in which he was called to Bar and enrolled at the Supreme Court i.e. “J. A. Cole”. After the hearing of the Appeal the trial Judge drew his attention to the fact that ORDER 3. RULE 2 OF THE HIGH COURT OF LAGOS (APPEALS) RULES had not been complied with because the firm of J.A. Cole & Cole is not a legal Practitioner under the Legal Practitioner Act 1962 and consequently dismissed the Appeal. Upon appeal to the Supreme Court, the Court allowed the Appeal holding at P.265 Inter-alia as follows: “The notice filed in this Case was given in the prescribed form. It stated the name and address of the legal Practitioner representing the Appellants as “Messrs. J.A. Cole and Cole. 14/16 Abibu Oki Street Lagos” and was signed, J. A. Cole For J. A. Cole & Cole” The Court went and held that, Mr. J. A. Cole. is admitted a duly registered Legal Practitioner and entitled to practice as such under the Legal Practitioners Act, 1962. He has no partner in his practice. …. in signing the notice of appeal, Mr. Cole used his own name that is to say, the name in which he registered as a legal Practitioner. We hold that on any interpretation of the Rules; that was a sufficient compliance with them. ……………..” The above decision clearly states that a process prepared and filed in a Court of Law by a legal Practitioner must be signed by the Legal Practitioner and that; “It is sufficient signature if the Legal Practitioner simply writes his own name over and above the name of his firm in which he carries out his practice.” In the instance, the name of ‘Chief Henry Akunebu’ had been written, and written on top of the name of his firm in which he carries his practice as follows:- “CHIEF HENRY AKUNEBU PP. AKUNEBU, AKUNEBU & CO. 69 EBITU UKIWE STREET, JABI-ABUJA” Applying the principles of law stated in the case of R.T.A.C. v. RAHAMAN AKINDELE (Supra), I hold that since the originating motion in dispute had the name of “Chief Henry Akunebu” written on it and the name was written on top of Chief Henry Akunebu Akunebu & Co., because he is a legal Practitioner registered to practice law in the Roll at the Supreme Court, that suffices as signature. See the case of OKAFOR & ORS v. NWEKE & 4 ORS. (2007) 10 NWLR (Pt. 1043) 521.” Per MOHAMMED LADAN TSAMIYA, JCA (Pp 10 – 13 Paras F – D) underline supplied for emphasis
This was further established in the recent case of SKYPOWER EXPRESS AIRWAYS LTD v. UBA, PLC & ANOR (2022) LPELR-56590(SC) on how court process(es) are to be signed; effect of signing Court process(es) without the name of counsel. The Court held thus:
“In SLB Consortium Ltd. v. NNPC, (supra) this Court, per Rhodes-Vivour, JSC underscored the importance of the way counsel chooses to sign a Court process and how all processes to be filed in Court shall be signed by Counsel. His Lordship explained that:- “Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the Law (i.e. the Legal Practitioners Act). All processes filed in Court are to be signed as follows:- First, the signature of counsel, which may be any contraption. Secondly, the name of Counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of Legal Firm.” This position was restated by the Learned Law lord in the case of Nigerian Army v. Samuel (2013) 14 NWLR (pt. 1375) 446 at 485 to settle the appropriate manner, way or mode for proper and valid signing of all Court processes by Counsel representing parties recognised by the law. Any Court process not signed by a legal practitioner representing a party as specifically stated and in the specified manner, is not a Court process signed in accordance with or recognised by law since it will not be a process signed by an identifiable person who could be attributed the competence to sign same. The undeniable fact in the case of the Appellant in this appeal is that both the writ of summons at page 2 and the statement of claim at pages 4 – 11 of vol. 2 of the Record of Appeal, which clearly and expressly, though mutedly, speak for themselves, are signed by way of a contraption as a signature, over, for and in the name of the law firm of “J. Odion Esezobo & Co.” The contraption or signature is not/does not represent the name of any identifiable person. In his brief of argument, the learned counsel for the appellant has strenuously contended that the signature is the name of counsel for the plaintiff and it is not just a contraption. However, an objective look at the signature shows not even a semblance of a specific and identifiable name, which by the prescription of the Court in SLB Consortium Ltd. v. NNPC and Nigerian Army v. Samuel (above, supra) is required to be “clearly written” in addition to any contraption which may be inscribed or appended as a signature of counsel to the processes. On the two (2) processes, only a signature appears and was inscribed without any name specifically, distinctly and clearly written so as to identify the person who made the contraption of the signature thereon. The signature was inscribed or appended, as a contraption, over or on top of the name of the Law Firm of “J. Odion Esezobo & Co.” clearly indicating and showing that they were both signed on behalf of and in the name of the said law firm, as counsel for the plaintiff. In the words of Mukhtar, JSC (later CJN) in SLB Consortium Ltd v. NNPC (supra):- “It is instructive to note here that the requirement for the name of the Legal Practitioner to be given, is necessary and important. The emphasis here is on the name together with the signature.” Rhodes-Viviour, JSC, concluded that:- “A signature without the name is incurably bad. ” In the foregoing premises, the facts of the appellant’s case on the competence of the initiating processes filed at the trial Court are substantially similar, even the same, as those considered and decided upon by this Court in the cases of Okafor v. Nweke, SLB Consortium Ltd. v. NNPC and FBN, Plc v. Maiwada referred to and relied on by the lower Court to hold that the said processes for being signed in the name of Law Firm, are incurably bad and incompetent and the action for not being initiated in line with due process of the law, was incompetent and liable to be struck out. Perhaps, I should state that since the two (2) processes in the Appellant’s case have been demonstrated to have been signed in the name of a law firm and not by a Legal Practitioner known to law, the issue of the provisions of the trial Court’s Rules as to who has the duty to issue and “sign” or “endorse” a writ of summons is non-sequitur in the determination of the competence of the processes in question. The case of Hamzat v. Sanni (supra) therefore becomes irrelevant in the circumstances.” Per MOHAMMED LAWAL GARBA, JSC (Pp 15 – 18 Paras B – E) underline supplied for emphasis
Consequently, it remains undoubted that the person who issued the Writ of Summons presented to the Registrar is a legal practitioner whose name is on the Roll at the Supreme Court. The purport of the provisions in the Legal Practitioners Act is to ensure that it was done by a legal Practitioner. This is as stated in the case of OWNERS OF THE MT “MARIGOLD” v. NNPC & ANOR (2022) LPELR-56858(SC) on the effect of a court process signed by an unidentifiable person, where the Apex Court held:
“I have also noticed that the Notice of Appeal was in fact signed by proxy; by way of a contraption of a signature, for the person whose name was set out clearly. The name of the person who inscribed or appended the contraption of the signature on behalf of and for the person whose name was set out is not stated or written in order to be identified for the purpose of determining whether he is a legal practitioner known to law by virtue of the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act (LPA) and so competent to sign the Notice of Appeal, as an initiating process in this Court. The law is that once it is not certain and clear as to the actual person who signed a process to be filed in Court by clear indication of the name, the process is incurably incompetent. See SLB consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1352) 317, Nigerian Army v. Samuel (2013) 14 NWLR (pt. 1375) 446 at 485, Okarika v. Samuel (2013) 7 NWELR (pc. 1352) 19.” Per MOHAMMED LAWAL GARBA, JSC (Pp 19 – 20 Paras E – C) underline supplied for emphasis
Thus, it is the name of the legal practitioner, not the contraption nor the name of the law firm that is important. Also in the case of BANK OF INDUSTRY LTD v. AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR-43812(SC), the Apex Court held:
“…How was the Notice of Appeal in the Court of Appeal signed? It was signed as follows: Oluwole Aluko & Co. Appellant’s Solicitor 189B Adekume Fajuyi Road, Adamasingba, Ibadan. What is wrong with the above? Sections 2(1) and 24 of the Legal Practitioners Act makes it abundantly clear that a legal practitioner means a person entitled to practice as a Barrister and Solicitor, and such a person is entitled to practice as a Barrister and Solicitor if his name is on the roll. So only a person with his professional name is entitled to practice law in Nigeria and this does not include a legal firm. On no account should the name of a firm be used interchangeably with the name of a practitioner. The former has some corporate connotation while the letter has none. It follows that where Court processes are issued in the name of a legal firm such processes are fundamentally defective and remain incompetent, null and void. In SLB Consortium Ltd v. NNPC (2011) 4 SC (Pt.i) p.86. I said: “All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of legal firm.” It would have been sufficient and very much in order if Mr. Oluwole Aluko had simply written or stamped his name on top of Oluwole Aluko & Co, because Mr. Oluwole Aluko is a legal practitioner registered to practice law in the Roll at the Supreme Court, but certainly not Oluwole Aluko & Co. …” Per OLABODE RHODES-VIVOUR, JSC (Pp 8 – 12 Paras C – B). Underlines, ours for emphasis.
THE USE OF THE WORD “MAY”
The Apex Court held in the above referred SLB Consortium Ltd v. NNPC that “…the signature of counsel, “may” be any contraption”. It is trite that the use of the word “may” shows that it is not mandatory, that it is optional. This is as stated in the case of WILSON & ORS v. OKEKE (2010)
LPELR-4536(CA) where the Court held thus: “The word “May” is defined in Black’s Law Dictionary sixth Edition as follows: “In construction of statutes and presumably also in construction of Federal Rules, word may as opposed to shall is indicative of discretion or choice between two or more alternatives, but context in which the word appears must be the controlling factor.” Per ABUBAKAR ABDULKADIR JEGA, JCA (Pp 14 – 14 Paras A – B)
The Apex Court, seeing that no provision was made for signature in Order 3 Rule 4 and Form 1 of the Federal High Court Rules, as well as the information that the name of an identifiable legal practitioner can suffice for signature in the interest of justice, used the word “may” in its ordinary meaning. It also follows that because it is in its ordinary form, the meaning which is in a discretionary form, shall suffice wholly. The position in WILSON & ORS v. OKEKE (supra) was reiterated in the case of ORAKUL RESOURCES LTD & ANOR v. NCC & ORS (2022) LPELR-56602(SC) which held thus:
“…Madarikan, JSC, described the word “may” used in a statute in the case of Mokelu v. Fed. Comm. For Works & Housing (1976) 3 SC, 60, thus:- “May” is an enabling or permissive word. In that sense, it imposes or gives a discretion any or enabling power. But where the object of the power is to effectuate a legal right, “may” has been construed as compulsory or as imposing an obligatory duty.” Per MOHAMMED LAWAL GARBA, JSC (Pp 34 – 35 Paras B – C)
The provision where the word “may” was used in SLB Consortium Ltd v. NNPC (supra) is not one that effectuates a legal right which is a claim recognized and delimited by law for the purpose of securing it.This further explains why the Apex Court held in BANK OF INDUSTRY LTD v. AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR-43812(SC)thus:
“…That it would have been sufficient and very much in order if Mr. Oluwole Aluko had simply written or stamped his name on top of Oluwole Aluko & Co, because Mr. Oluwole Aluko is a legal practitioner registered to practice law in the Roll at the Supreme Court, but certainly not Oluwole Aluko & Co.”
Having traversed the above stated gen, it is hereby stated that the traditional signing of a writ of summonsby contraption is not mandatory. A writ of summons remains valid provided it was signed by a legal practitioner whose name is on the roll. It will sufficiently be a signature where the process has a contraption and the name of the legal practitioner or the name of the legal practitioner alone.