AINA & ANOR v. ODUWOLE (2020)

AINA & ANOR v. ODUWOLE

(2020)LCN/14103(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Monday, March 23, 2020

CA/IB/340/2010

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1.MR. OWOGBUYI AINA 2.MADAM ADEPEJU OGUNSONA APPELANT(S)

And

NIYI ODUWOLE RESPONDENT(S)

RATIO

SITUATIONS TO BE EMPLOYED IN RAISING AN OBJECTION TO THE COMPETENCE OF A COURT

The issue under consideration is a challenge to the competence of the lower Court to hear and determine the suit from which this appeal emanated. In MUSACONI LTD VS. ASPINALL (2013) 14 NWLR (PT. 1375) 435, the Supreme Court, per Ariwoola, JSC held thus:
“In raising an objection to the competence of a Court, any of the following situations can be employed. This is the law.
(a) On basis of the statement of claim, or
(b) On basis of evidence received, or
(c) By motion supported by affidavit setting out the facts relied on; or
(d) On the face of the Writ of Summons, where appropriate as to the capacity in which the action was brought or against who the action was brought.
See CHIEF NNONYE VS. ANYICHIE &ORS .(2005) 1 SCM 133 AT 146; ATTORNEY-GENERAL OF KWARA STATE VS.OLAWALE (1993) 1 NWLR (PT 272) 645; NDIC VS. CENTRAL BANK OF NIGERIA (2002) 4 SCM 128; (2002) 7 NWLR (PT 766) 272; ARJAY LIMITED & ORS. VS. AIRLINE MANAGEMENT SUPPORT LIMITED (2003) 5 SCM 17; (2003) 7 NWLR (PT 820) 577.” PER OJO, J.C.A.

COMPETENCE OF A COURT TO ASSUME JURISDICTION OVER A MATTER

Furthermore, a Court of law will be deemed competent to assume jurisdiction over any matter when:
1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
See DURBAR HOTEL PLC VS. ITYOUGH & ORS (2017) 7 NWLR (PT. 1564) 256; BUREMOH VS. AKANDE (2017) 7 NWLR (PT. 1563) 74; MADUKOLU & ORS VS. NKEMDILIM (1962) 2 NSCC 374; MINI LODGE LTD & ANOR. VS. NGEI & ANOR.(2009) 18 NWLR (PT. 1173) 254. PER OJO, J.C.A.

WHETHER OR NOT A DEFECTIVE ORIGINATING SUMMONS CAN BE AMENDED

The law is settled that a fundamentally defective originating process such as a Writ of Summons cannot be amended to infuse life into it.The process is still born and cannot be revived. Such a process is non-existent in the eyes of the law and cannot be cured by an amendment.It is incurably bad and any purported amendment to it is a nullity.
See MACFOY VS. U.A.C. LTD (1962) A.C. 152; SKEN CONSULT (NIG) LTD VS.UKEY (1981) 1 SC 6; OPOBIYI VS. OSHOBOJA (1976) 9-10 SC 195 and NZOM VS.JINADU (1987) 1 NWLR (PT. 51) 533. PER OJO, J.C.A.

FOLASADE AYODEJI OJO J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Ogun State High Court, Abeokuta Judicial Division in Suit No: HCS/93/2004 delivered on 23rd April, 2010.

In that judgment the lower Court found against the Appellants as 1st and 2nd Defendants respectively on all issues submitted for determination before it by the Respondent as Claimant.

By a Writ of Summons issued on the 12th of August, 2004 on behalf of the Respondent at the lower Court, he claimed as follows:
(1) A declaration that the Plaintiff is the owner and entitled to the grant of a Statutory Right of Occupancy in respect of the old mud bungalow building situate, lying and being at Itunserolu Compound, Ilishan Remo, Ogun State.
(2) An Order of Perpetual Injunction restraining the Defendants, their agents, servants, privies and other persons claiming through them from committing further act of trespass on the Bungalow building which is situate, lying and being at Itunserolu Compound, Ilishan Remo, Ogun State.
(3) An Order granting the possession of the old mud bungalow building situate at Itunserolu Compound,

Ilishan Remo to the Plaintiff.
(4) An Order of forfeiture of the Defendant’s tenancy at will on the bungalow building at Itunserolu quarters, Ilishan Remo.

Parties filed and exchanged pleadings before the lower Court and the case went on to trial. The Court at pages 188 – 189 of the Record held as follows:
“In effect the Plaintiff’s claim succeeds –
1. I therefore declare that the Plaintiff is the owner and is entitled to the grant of a Statutory Right of Occupancy in respect of the old mud bungalow building, situate, lying and being at Itunserolu Compound, Ilishan – Remo, Ogun State.
2. Since the Plaintiff’s 1st claim succeeds, she is entitled to protection of the property so perpetual injunction is hereby granted the Plaintiff to restrain the Defendants, their agents, servants, privies and other person claiming through them from committing further act of trespass on the bungalow building which is situate, lying and being at Itunserolu Compound, Ilishan-Remo, Ogun State.
3. Possession of the said mud bungalow building situate at Itunserolu Compound, Ilishan-Remo is hereby granted to the Plaintiff.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Defendants’ tenancy-at-will on the said bungalow is hereby forfeited.
The Counter-claim of the Defendants on the other part fails and is dismissed in its entirety.”

Dissatisfied with the judgment of the lower Court, the Appellant filed a Notice of Appeal at the Registry of this Court on the 10th of May, 2010. The Notice of Appeal was amended on 3rd March 2017 pursuant to an order of this Court. The Amended Notice of Appeal was deemed as properly filed and served on the 8th of June, 2017.

The Appellants filed an Appellants Brief of Argument on the 17th of November, 2016. He further filed an Amended Appellants’ Brief of Argument on the 17th of November, 2017 which was deemed as properly filed and served on 10th of October 2018.

By a Notice filed at the registry of this Court on the 21st of March, 2011, Messrs Tunde Ologunde & Co. notified this Court of the demise of the original Respondent and that he had no further instruction to act for her. Learned Counsel to the Appellant consequently filed a Motion on Notice on the 21st of April 2016 praying the Court for an order substituting the original Respondent with

her grandchild, Niyi Oduwole.The said Application was granted on the 5th of October 2016. The Amended Appellants Brief of Argument was served on the new Respondent, Niyi Oduwole on 10th of October, 2018. He did not file a Respondent’s Brief of Argument. Appellants Counsel on the 21st of December 2018 filed an application wherein he prayed the Court to hear this appeal on the Appellants Brief of Argument alone for failure of the Respondent to file his Brief of Argument within the time provided by the Rules of this Court. Consequent upon the grant of this application on 7th February 2019 this appeal was heard on the Appellants Brief alone on the 21st of January 2020.
Order 10 Rule 1 of the Court of Appeal Rules, 2016 provides as follows:
“Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the Respondent fails to file his brief, he will not be heard in oral argument. Where an Appellant fails to file his brief, he will not be heard in oral argument. Where an

Appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the Respondent’s brief.”
An Appellant is however not absolved of the burden to establish his case on Appeal even where a Respondent fails to file a Brief of Argument. See SKYE BANK PLC & ANOR. VS. AKINPELU (2010) 9 NWLR (PT. 1198) 179; OKELOLA VS. ADELEKE (2004) 13 NWLR (PT. 890) 307 and CAMEROON AIRLINES VS. OTUTUIZU (2011) 4 NWLR (PT. 1238) 512. In ECHERE & ORS VS. EZIRIKE & ORS (2006) 12 NWLR (PT. 994) 386, the Supreme Court, per Ogbuagu, JSC held as follows:
“It is to be borne in mind and this is also settled that, failure to file a Respondent brief is immaterial and of no moment. This is because, an Appellant must succeed or fail in his own brief. In other words, that an appellant succeeds on the strength of his own case. It is not automatic that when once a Respondent fails to file his brief, that is it- the appellant automatically, must win or succeed in the appeal. No.
But there is a rider or call it a big BUT. The consequences of such failure, is that the Respondent,

will be deemed, to have admitted the truth of, everything stated in the Appellant’s brief. So be it in this appeal. See the cases of JOHN HOLT VENTURE LTD VS. OPUTA (1996) 9 NWLR (PT. 479) 101 AT 12; ONYEJEKWE VS. THE NIGERIA POLICE COUNCIL & ANOR (1996) 7 NWLR (PT. 463) 704 AT 710; AKPAN VS.THE STATE (1992) 6 NWLR (PT. 248) 439; AND SOFOLAHAN & 5 ORS VS. CHIEF FOLAKAN & 12 ORS (1999) 10 NWLR (PT. 621) 86 AT 95; just to mention but a few.”

The Appellant formulated the following issues for the determination of this appeal:
(i) Whether the originating Court processes not personally signed by a Legal Practitioner duly registered in the roll of the Supreme Court of Nigeria as dictated by the applicable provisions of the Legal Practitioners Act is not invalid and/or incompetent and if so, can same be amended by the Court? (Ground 6)
(ii) Whether the Respondent proved her case by traditional history as averred in the Amended Statement of Claim dated 13th March 2009 as against mere allusion to acts by her as found by the Lower Court. (Grounds 1 & 2).
(iii) Whether based on the various inconsistencies in the pleadings and

evidence of the Respondent, the Trial Court was right to have given Judgment in her favour. (Ground 3)
(iv) Whether possession could be granted against a Tenant at Will who was not served Notice of Owners Intention to recover property. (Ground 4).

This appeal shall be resolved on the issues formulated by the Appellants.The first issue goes to the foundation of the Suit the subject of this appeal and afortioriri the competence of the appeal.I shall therefore deal with it first.

ISSUE NO. 1
“Whether the originating Court processes not personally signed by a Legal Practitioner duly registered in the roll of the Supreme Court of Nigeria as dictated by the applicable Provision of the Legal Practitioners Act is not invalid and/or incompetent and if so, can same be amended by the Court.”

Learned Counsel to the Appellant submitted on his behalf that jurisdiction is very germane and important in any proceeding and same can be raised at any stage of the proceedings. It is his contention that the Respondent did not approach the lower Court by due process of law in that the Originating Process i.e. the Writ of Summons was signed by

Tunde Ologunde & Co., who is not a Legal Practitioner known to law. He relied on the provisions of Section 2(1) and 24 of the Legal Practitioners Act and the cases of OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1043) 521 AT 524; FBN VS. MAIWADA (2013) 5 NWLR (PT. 1348) 483, PARAS C-G; ALHAJI FATAI AYODELE ALAWIYE VS. MRS ELIZABETH ADETOKUNBO OGUNSANYA (2013) 5 NWLR (PT. 1348) 570.

He submitted that the Writ of Summons filed in the suit at the lower Court is incompetent and as such no valid judgment can arise therefrom. He craved in aid the case of MACFOY VS. UAC LTD (1962) AC 152.

He argued further that the amendment of the Writ of Summons and Statement of Claim by the trial Judge at the stage of final address was done in error and cannot stand. This he said is because a defective Writ of Summons is a nullity. It cannot be amended. He cited the cases of MUYIWA ODEJAYI & ANOR VS. HENLEY INDUSTRIES LTD (2013) LPELR-20368 (CA) and NWBH VS. DENCLAG LTD (2005) 4 NWLR (PT. 431) 843 in support.

He finally urged us to hold that the Originating Processes of the suit at the lower Court are defective and all proceedings arising therefrom are a nullity.

The complaint of the Appellant is that the Writ of Summons by which the suit was initiated at the lower Court is ex facie incompetent. They contend

that the Writ of Summons and Statement of Claim are invalid. The well settled position of the law is that a valid Originating Process is a condition precedent for a valid claim and goes to the root of adjudication of the Court where the action is filed. See KENTE VS. ISHAKU & ORS. (2017) 12 NWLR (PT. 1578) 94; OKPE VS. FAN MILK PLC & ANOR (2017) 2 NWLR (PT. 1549) 282;BRAITHWAITE VS. SKYE BANK PLC (2013) 5 NWLR (PT. 1346) 1.

NSCC 374; MINI LODGE LTD & ANOR. VS. NGEI & ANOR.(2009) 18 NWLR (PT. 1173) 254.

The Appellant contended that by virtue of the provisions of the High Court Civil Procedure Rules of Ogun State, 1987 which was in force at the time the action was filed, an originating process shall be signed by either the party himself or by a Legal Practitioner instructed by him to do so on his behalf.Their complaint is that the Originating Processes filed by the Respondent at the lower Court violate the said provisions in that they were signed by the law firm of Tunde Ologunde & Co. contrary to the provisions of Sections 2(1) and 24 of the Legal Practitioners Act.
The practice of signing Court processes in the name of a law firm has been condemned severally by the Supreme Court and this Court and authorities abound that such action render the process incompetent, invalid, null and void. See OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1043) 521; OKWUOSA VS. GOMWALK & ORS (2017) 9 NWLR (PT. 1570) 259; NIGERIAN ARMY VS. SAMUEL & ORS (2013) 14 NWLR (PT. 1375) 466. In HAMZAT & ANOR. VS. SANNI & ORS (2015) 5 NWLR (PT. 1453) 486, the Supreme Court, per Galadima, JSC held thus:

“The Respondents are challenging the competence of the two statements of claim of the appellants on which evidence of their witnesses at the trial Court was based. It is beyond any argument that the law firm of “OLUMUYIWA OBANEWA & CO” is not a legal practitioner recognised under the law. It cannot sign any process meant for filing in the Court. The two statements of claim being legal documents ought to have been signed by the named legal practitioner on behalf of the Appellants.
This Court was faced with similar situation that came up for consideration in OKAFOR VS. NWEKE (2007) 10 NWLR (supra) 521. In that case, the offending processes, the Motion on Notice, Notice of Cross-Appeal, and a Brief of Argument all signed “JHC OKOLO SAN & CO” were all held to be incompetent, same having not been issued by a legal practitioner known to law, and were consequently struck out. In holding these processes incompetent this Court held at page 532 thus:
“I have taken into consideration the issue of substantial justice which is balanced on the other side of the scale of justice with the need to correct the

current embarrassing trend in legal practice where authentication or franking of legal documents particularly processes for filing in the Courts have not been receiving the serious attention they deserve from some legal practitioners. Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our example. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country. The law exists as guide for actions needed for the practice of the law, not to be twisted and turned to serve whatever purpose, legitimate or otherwise which can only best result in embarrassing the profession if encouraged.”
In SLB CONSORTIUM LTD VS. NNPC (supra) this Court citing the case of OKAFOR VS. NWEKE (supra) struck out the Plaintiffs Originating Summons and the statement of claim, both having been signed by “ADEWALE ADESOKAN & CO., who was held not to be a legal practitioner known to law. It was further held that by that error the suit at the trial Court

“was not initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”
In view of our clear position in OKAFOR VS. NWEKE (supra) and other similar cases, I hold that the Appellant’s statements of claim in which evidence was led, were a nullity, same having been signed in the name of a law firm which, is not by the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Cap 207 Laws of the Federation, 1990, a person entitled to practice as a Barrister and Solicitor.”
I have seen the Writ of Summons filed on behalf of the Respondent on the 12th of August 2004 contained at page 1 of the Record and the Statement of Claim filed on 26th October 2004 at pages 3 – 6 of the Record. Both processes were signed by Tunde Ologunde & Co. Tunde Ologunde & Co. is not a Legal Practitioner enrolled at the Supreme Court.
From the record of proceedings at the lower Court, I note that parties attempted to amend the originating processes on the 13th of March 2009. The trial judge acceded to the request and in his judgment at page 154 of the Record held as follows:

“On 6th March, 2006 the Defendants filed an Amended Statement of Defence and Counter-claim with the leave of Court. The Plaintiff on 13th December, 2006 filed an Amended Reply to Statement of Defence and Counter-claim. On 3rd July, 2007 the Defendants filed a Further Amended Statement of Defence and Counter-claim. With leave of Court both parties filed Amended processes on 13th March, and 27th April, 2009 to bring their processes in compliance with the decisions of the Supreme Court in Okafor Vs Nweke (2007) 10 NWLR (Pt. 1043) 521”
The Appellant has challenged the power of the lower Court to amend defective originating processes with which the Respondent commenced the action. The question now is whether an invalid originating process can be cured by an amendment.
The law is settled that a fundamentally defective originating process such as a Writ of Summons cannot be amended to infuse life into it.The process is still born and cannot be revived. Such a process is non-existent in the eyes of the law and cannot be cured by an amendment.It is incurably bad and any purported amendment to it is a nullity.
See MACFOY VS. U.A.C. LTD (1962) A.C. 152; SKEN CONSULT (NIG) LTD VS.UKEY

(1981) 1 SC 6; OPOBIYI VS. OSHOBOJA (1976) 9-10 SC 195 and NZOM VS.JINADU (1987) 1 NWLR (PT. 51) 533.
The record of the lower Court shows that the Writ of Summons and Statement of Claim filed by the Respondent to initiate the action at the lower Court was signed by Tunde Ologunde & Co. The said originating processes are incurably bad and liable to be struck out. The proceedings conducted pursuant to the processes are a nullity. It follows therefore that the judgment of the lower Court was delivered without jurisdiction. The defect in the processes cannot be cured by an amendment as the trial judge attempted to do. The defect in the originating processes robbed the lower Court of jurisdiction to hear and determine the action.The entire proceedings at the lower Court as well as the judgment are null and void and I so hold.

In the light of all of the above, the entire proceedings in SUIT NOS.HCS/93/2004 and the judgment delivered in the said Suit on 23rd April 2010 are hereby set aside. The instant appeal is against a judgment that has been adjudged a nullity. This appeal is therefore incompetent and it is also struck out.

In the present circumstance, all other issues formulated for determination by the Appellants have become spent. The issue of jurisdiction is fundamental to every adjudication and where it is found that the lower Court lacks jurisdiction as in this case, it becomes unnecessary to consider any other issue proposed for determination of the appeal.
See ALAO VS. AKANO & ORS (2005) 11 NWLR (PT. 935) 160; ORO & ORS. VS. FALADE & ORS. (1995) 5 NWLR (PT. 396) 385 AND FEDERAL CAPITAL DEVELOPMENT AUTHORITY VS. SULE (1994) 3 NWLR (PT. 332) 257.

In conclusion, I find the instant appeal incompetent and it is hereby struck out.

JIMI OLUKAYODE BADA. J.C.A.: I had a preview of the lead Judgment, just delivered in this appeal by my Lord FOLASADE AYODEJI OJO, JCA.

I agree with my Lord’s analysis and conclusion that this appeal is incompetent, and it is also struck out by me.

HARUNA SIMON TSAMMANI J.C.A.: The issue of an originating process, such as a writ of summons or statement claim signed by a Law Firm has received the attention of the Supreme Court and indeed this Court In a legion of cases. The law has now crystallized since

Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521 and FBN v. Maiwada (2013) 5 NWLR (pt 1348) 483 to the effect that any Court process purporting to have been signed by a legal practitioner, but signed in the name of a Law Firm, is incompetent, null and void. Such void process cannot be given life by way of an amendment. Consequently, any proceeding conducted on such a void process will be a nullity; and should be set aside. See Akanni Fadina & Ors v. Nureni Ogunremi & Ors (2017) LPELR — 42771 (CA); Ogundele v. Agiri & Ors{2009) 12 S.C. (pt.1) 135 and Commissioner for Works and Transport Adamawa State v. Yakubu (2013) 6 NWLR (pt 1351) 481.

It is for the above reasons and the fuller reasons ably adumbrated by my learned brother, Folasade Ayodeji Ojo, JCA that I agreed that this appeal be struck out being an appeal built on a null judgment.

Appearances:

Wale Ajetunmobi For Appellant(s)

Respondent Counsel Absent For Respondent(s)