The Court, Its Processes and the Unknown Lawyer: Examining the Reasoning of the Court in B.L.L.S. Co. Ltd. v. M.V. Western Star by Moruff Balogun
Case Citation: (2019) 9 NWLR PT 1678 PG. 489
Summary of facts:
By a writ of summons, the appellant commenced a suit against the respondents at the Federal High Court. It claimed USD 121, 650 being unpaid costs of bunkers it supplied to the 1st respondent in Istanbul, Turkey; and which bunkers were duly received and acknowledged by the 3rd respondent. The appellant also claimed interests and costs. The appellant obtained an order for the arrest of the 1st respondent pending the provision of adequate security by way of a bank guarantee to secure its claims. Though the appellant’s writ of summons was prepared by Mr. Babajide Koku as counsel, it was signed on his behalf by a person whose name was not stated on the writ of summons. The appellant also did not obtain leave of Court to issue and serve its writ of summons outside the jurisdiction of the trial Federal High Court on the 2nd respondent whose endorsed address for service was in Ukraine. Instead, the appellant sought substituted service of the writ of summons meant for service on the 2nd respondent, and served it on the 3rd respondent.Upon being served with the originating processes, the respondents filed a defence, and the matter went to trial. At the conclusion of trial and addresses of counsel, the trial court delivered judgment in favour of the appellant.The respondents appealed to the Court of Appeal, which held amongst others because the 2nd and 3rd respondents were sued along with the 1st respondent (the vessel) as parties endorsed on the writ of summons and statement of claim, the appellant’s action was not purely an action in rem but an action in personam. The Court of Appeal further held that by virtue of Order 6 rule 12(1) of the Federal High Court (Civil Procedure) Rules, 2000, the appellant ought to have obtained prior leave of the trial court to issue and serve the writ of summons on the 2nd respondent who resides outside the jurisdiction of the trial court. Consequently, the Court of Appeal held that the appellant’s writ of summons was fundamentally defective and incompetent. The Court of Appeal therefore allowed the appeal, set aside the trial court’s judgment, and struck out the appellant’s suit for want of jurisdiction.The appellant then appealed to the Supreme Court. The appellant argued that there is no provision in the Legal Practitioners Act relating to the signing and issuance of court processes; and that its writ of summons complied with the rules of court which regulated the issuance and service of the writ of summons because the name of Mr. Babajide Koku, a legal practitioner, entitled to practice in Nigeria was endorsed on the writ of summons. The appellant also argued that it did not need to obtain leave of court to issue and serve its writ of summons out of jurisdiction because its suit is an action in rem, which did not require leave of court for issuance and service of process outside jurisdiction.On the other hand, the respondents argued that the Supreme Court has decisively held that the provisions of the Legal Practitioners Act, enjoin a legal practitioner to sign a court process in his name. The respondents also argued that the appellant’s suit was an action in personam and an action in rem combined.
Held: The Supreme Court unanimously dismissing the appeal and the cross-appeal
The following issues were raised and determined by the Supreme Court:
On how document should be signed on behalf of legal practitioner-
Where a counsel in chambers who prepared a document is not available to sign the document and there is need for another counsel to sign the document on his behalf, the counsel signing the document must state his name in full in addition to his signature. Where somebody, be he a legal practitioner or a non legal practitioner, signs a document on behalf of a known legal practitioner and fails to identify himself by writing his name on the document, that document is void and of no legal consequence. In this case, Mr. Babajide Koku did not sign the appellant’s writ of summons. Somebody signed for him. But the person who signed for him was unknown.
On why only legal practitioners whose names are on roll of legal practitioners should sign court process-
The requirement that legal practitioners who prepare court documents must be those whose names are on the roll of legal practitioners is to protect the legal profession from abuse and quackery, and to give such documents or processes the stamp of authority, which can be relied upon by the court as authentic processes of the litigant represented by such counsel. Otherwise, a court process may be signed by secretaries, clerks, or even messengers, only to be disowned by a counsel if it does not suit the counsel’s purpose.
Who can sign court process as a legal practitioner- The purpose of sections 2(1) and 24 of the Legal Practitioners Act is to ensure that only a legal practitioner whose name is on the roll of the Supreme Court signs court processes. It is to ensure responsibility and accountability on the part of the legal practitioner who signs a court process. In other words, a court process signed by an unknown person is incompetent and liable to be struck out. In this case, Mr. Babajide Koku did not sign the appellant’s writ of summons. Somebody signed for him. But the person who signed for him is unknown. Consequently, the Court of Appeal rightly held that the appellant’s writ of summons at the trial court was incompetent and rightly struck it out.
On who can practice as a barrister and solicitor in Nigeria –
By virtue of section 2(1) of the Legal Practitioners Act, subject to the provisions of the Act, a person is entitled to practice as a barrister and solicitor only if his name is on the roll of legal practitioners. And by section 24 of the Act, a legal practitioner is defined as a person entitled in accordance with the provisions of the Act to practice as a barrister or as a barrister and solicitor either generally or for the purpose of any particular office or proceedings.On importance of originating court process and effect of defect therein –
An originating process Such as a writ of summons or a notice of appeal is the foundation of a case. Any defect in it will render the case or appeal incompetent. Put differently, once a notice of appeal is defective, it is incompetent, and there will be nothing left to consider. Any defect in a notice of appeal goes to the root of the appeal and robs the court of the jurisdiction to hear the appeal. The same applies to a defective writ of summons. In this case, because the appellant’s writ of summons was signed by an unknown person on behalf of Mr. Babajide Koku, whose name was endorsed on it, the writ of summons became void.
On duty on court to base judgment on evidence and not to investigate case outside court –
A court of law can only pronounce judgment in the light of evidence presented and proved before it. A court of law cannot go outside the evidence presented and proved before it in search of other evidence in favour of the parties. In this case, there was no evidence of who signed the writ of summons on behalf of Mr. Babajide Koku. In the circumstance, the court could not search for evidence to determine who signed the writ of summons.
On how to ensure substantial justice – Substantial justice can only be done by obeying the law. As such, there is nothing technical in making it mandatory for legal practitioners to obey the law and to do the correct thing. There is also no injustice in urging counsel to comply with the requirement of the law.
On difference between action in rem and action in personam in admiralty matter-
An action in rem is separate from an action in personam. An action in rem is entirely independent of an action in personam. The former is not ancillary to the latter. An action in rem is against the ship or in appropriate circumstances other properties such as cargo, freight, and not its owner. An owner may take part in an action in rem if he considers it to be appropriate to defend his property but it is essentially an action against his property, not against him. An action in rem enjoys popularity amongst maritime claimants around the world because it is of immense convenience and has advantages which are lacking in an action in personam, which may be difficult, if not impossible, to institute. On the other hand, an action ”in personam” is directed against the person at fault and is dependent entirely upon the plaintiff being able properly and effectively to serve a summons on the defendant in connection with the legal complaint against the defendant particularly when parties are in different jurisdictions. Thus, permission of the court is needed to serve a claim form for an action in personam outside jurisdiction.
On whether leave of court necessary for issuance and service of writ of summons in admiralty action in rem -Where a plaintiff sues only a vessel in an admiralty suit, the plaintiff does not require leave to issue or serve the vessel that is already within the jurisdiction, and her owners who appear in court to defend her are deemed for that purpose to reside within jurisdiction. In this case, the appellant chose to sue the 1st respondent (the vessel) and its foreign owner (the 2nd respondent). And it cannot be assumed that the foreign owner is resident in Nigeria so as not to require leave to issue and/or serve the appellant’s writ of summons.
On rules governing issuance and service of court process outside jurisdiction where action in rem and action in personam are combined in admiralty claim –In admiralty matters, where an action in rem is combined with an action in personam, the provisions of the Federal High Court (Civil Procedure) Rules and the Admiralty Jurisdiction/Procedure Rules are applicable in addition to sections 96, 97 and 99 or any other section of the Sheriffs and Civil Process Act, when considering the issuance and service of process out of jurisdiction.On need for prior leave of court to issue writ of summons for service outside jurisdiction-By Order 6 rule 12(1) of the Federal High Court (Civil Procedure) Rules, 2000, no writ which or notice of which is to be served out of the jurisdiction shall be issued without leave of court. In this case, the originating process, the writ of summons, could not be personally served on the 2nd respondent because no prior leave was sought and obtained to issue it as required by Order 6 rule 12(1) of the Federal High Court (Civil Procedure) Rules, 2000 and the Sheriffs and Civil Process Act. In the circumstance, the purported substituted service by the appellant on the 2nd respondent was irregular and incompetent.
Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
09121207712 [WHATSAPP]
