YAYA SAMMAH v. MR. SAMUEL OLUWOLE OJO & ANOR (2013)

YAYA SAMMAH v. MR. SAMUEL OLUWOLE OJO & ANOR

(2013)LCN/6639(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of December, 2013

CA/B/48/10

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

C. IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

YAYA SAMMAH Appellant(s)

AND

1. MR. SAMUEL OLUWOLE OJO
2. MRS FOLUKE OJO Respondent(s)

RATIO

THE MEANING OF THE JURISPRUDENCE OF JURISDICTION

Now, the jurisprudence of jurisdiction as I understand it stipulates that it is never too late to raise a jurisdictional issue. This is to say that it can be raised for the first time even at the Supreme Court which is the ultimate court of the land. There are a plethora of authorities on this some of which are:
i. SLB CONSORTIUM LTD. VS. NIGERIAN NATIONAL PETROTEUM CORPORATION (2011) 9 NWLR 317;
ii. AJAYI VS. ADEBIYI (2012) LPELR-7811 (SC);
iii. OLOBA VS. AKEREJA (1988) 3 NWLR (pt. 84) 508;
iv. ODOFIN VS. AGU (1992) 3 NWLR (pt. 229) 350;
v. ADEYEMI VS. OPEYORI (1976) 9-10 SC.; and
vi. IJEOMA VS. PETROMED O. I. NIG. LTD. (Supra) ratio 1 where it was held that:
“An objection to the jurisdiction of a court to try a case brought to it by litigants goes beyond mere irregularity…… but touches on the root of competence and legality of the court’s authority over the case….. The issue of challenge or objection to jurisdiction can be raised at any stage in the proceedings of a case from the court of trial to the final court…..” [Emphasis mine]. PER JOMBO-OFO, J.C.A.

THE EFFECT OF A PRELIMINARY OBJECTION

Undoubtedly the effect of a preliminary objection is to terminate the proceedings at the stage where the objection is raised as long as there is merit in the objection. See OKEREKE vs. YAR ADUA (2008) 12 NWLR (pt. 1100) 95; NALSA & TEAM ASSOCIATES VS. NIGERIAN NATIONAL PETROLEUM CORPORATION (1991) 8 NWLR (PT.212) 652; and RAILWAY CORP. PENSION FUND VS. ISAIAH AINA (1970) ALL NLR 283.
Now the issue at stake here appears to me to be of a fundamental importance as a result of which decision ought to be reached on its merit. PER JOMBO-OFO, J.C.A.

THE RULE OF LAW WITH REGARD TO SIGNING OF INITIATING COURT PROCESSES

With regard to signing of initiating processes such as the Writ of Summons and or Statement of Claim filed before the court, the rule is that they are to be signed by legal practitioner recognized by law or a person entitled to practice as a Barrister and Solicitor. See sections 2(i) and 24 of the Legal Practitioners Act Cap LII LFN, 2004; and the cases of REGISTERED TRUSTEE OF APOSTOLIC CHURCH, LAGOS AREA vs. RAHMAN AKINDELE (1967) NWLR 263, 265; and FIRST BANK OF NIG. PLC. vs. ALHAJI SALMANU MAIDAWA dated 27th March, 2003 at pages 13 and 14 per Mangaji, JCA (of blessed memory) (unreported) as well as OGUNDELE VS. AGIRI (2009) 18 NWLR (1173) 219 ratio 1 thereof where in an issue relating to the competence of a Brief of Argument signed by a firm and not a legal practitioner and whether same borders on mere irregularity– OGBUAGU JSC (Pp. 35-36, paras. B-C) held thus:
“….. Such signing in my respectful but firm view, is NOT an irregularity as held by the Court of Appeal – per Alagoa, JCA in the case of UNITY BANK PLC vs. OLUWAFEMI (2007) ALL FWLR (Pt. 382) 1923 relying on the case of or decision in COLE vs. MARTINS (1968) ALL NLR 161 (Lardner’s case). It is a fundamental error.” (Emphasis mine).

THE DIFFERENCE BETWEEN THE NAME OF A FIRM OF LEGAL PRACTITIONERS AND THE NAME OF A LEGAL PRACTITIONER SIMPLICITER

To further buttress the point I am making, the said Supreme Court in its more recent decision in OKETADE vs. ADEWUNMI (2010) 8 NWLR (1195) 63, 74 D-G per Niki Tobi, JSC held:
“There is a big legal difference between the name of a firm of legal practitioners and the name of a legal practitioner simpliciter. While the name of OLUJIMI & AKEREDOLU is a firm with some corporate existence, the name of a legal practitioner is a name qua Solicitor and Advocate of the Supreme Court of Nigeria which has no corporate connotation. As both carry different legal entities (sic) in our jurisprudence of parties, one cannot be a substitute for the other because they are not synonyms. It is clear that Olujimi & Akeredolu is not a name of a legal practitioner. I say this because there is no such name in the roll of legal practitioners and that violates sections 2(1) and 24 of the Legal Practitioners Act. By section 2(1) of the Act, the only person in the profession wearing his professional name to practice law in Nigeria is a legal practitioner in section 24 of the Act and it does not include Olujimi and Akeredolu. This to me is not a technicality that can be brushed aside. It is fundamental to the judicial process as it directly affects the legal processes that brought this case on appeal….”
(Emphasis supplied). PER JOMBO-OFO, J.C.A.

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ondo State presided over by Justice Oluwole Fagbe in suit Nos: AK/29/2002 delivered 31st March, 2009.
By a writ of summons and the statement of claim dated 4th February, 2002 respectively, the plaintiffs (herein the respondents) instituted an action against the defendant (herein the appellant) before the High court of Justice of Ondo State sitting at Akure and presided over by Hon. Justice Oluwole Fagbe in suit nos. AK/29/2002 for the following reliefs claimed jointly and severally by the plaintiffs against the defendants:-

i. An order of perpetual injunction restraining the defendant and or his agents, privies, assigns employees, laborers, servants, successors in title and or any person or persons whatsoever by whatever name or names or description and or descriptions claiming through the defendant from trespassing upon, encroaching on or in any way interfering with the plaintiff’s ownership and possession of a two plots of land situate, lying and being known as plots No. 17 and 18 Block J on Chief Arowosafe Ajana Asamio Layout at Ikunnu Farm Akure which plots are covered by Certificates of Occupancy Nos. 26/26/103 and 24/24/17 both at land registry Akure, both in the names of the plaintiffs respectively.
ii. An order setting aside any form of alienation whatsoever of any of the two plots described hereinabove by whomsoever to the defendant in whatever form whatsoever and for whatever reason whatsoever.
iii. A declaration that any alienation of any part of the two plots covered by the two certificates of occupancy Nos. 26/26/103 and 24/24/117 in the names of the plaintiffs to the defendant by whomsoever and for whatsoever is null and void, illegal, unlawful and unconstitutional.
iv. An order that the acts of the defendant entering the land, digging same without the consents and the authority of the plaintiffs who has been in physical possession undisturbed since 1979 amount to trespass.
v. General damages of 5 million Naira Only for the acts of continuous trespass on the land of the plaintiffs inspite of the intervention of law enforcement agents.

The parties exchanged pleadings and the case proceeded to trial. The dispute in the suit bordered on ownership of the two plots of land known as Block J, Plots 17 and 18 in Ajana Asamio Layout, Ikunnu Farm, Akure. The respondents claimed that the two plots of land belong to them and that the lands are covered by two separate Certificates of Occupancy issued in their names. The respondents alleged that the defendant/appellant trespassed into the property without their consent, authority and knowledge and built thereon. At the conclusion of hearing and after the filing and exchange of addresses of learned counsel for either side, the learned trial Judge in a considered judgment delivered 31st March, 2009 gave judgment against the defendant. Not being satisfied with the decision, the defendant as appellant is on appeal before this court vide an Amended Notice of Appeal filed 8th July, 2011 containing seven grounds of appeal.
The appellant in compliance with the rules of this court filed the Appellant’s Brief of Argument and the Appellant’s Reply Brief of Argument both settled by OLABANJO O. AYENAKIN, ESQ. dated 5th July, 2011 and filed 8th July, 2011 and dated and filed 19th October, 2011 respectively. The respondents filed the Respondents’ Brief of Argument dated and filed 2nd September, 2011 and which brief was settled by SIR GOKE ADUROTA KSJ JP.
At the hearing of the appeal on 23rd October, 2013 OLAWOLE OTETUBI, ESQ. who appeared for the appellant pursuant to a motion by them dated 27th February, 2013 and filed 19th March, 2013 prayed the court for extension of time for the appellant/applicant to regularize its position regarding its record of appeal same having been compiled, transmitted and served out of time and that same be deemed as proper before the court. With no objection from SIR GOKE ADUROTA who was appearing for the respondents, the record of appeal in this suit was deemed proper before the court. OLAWOLE OTETUBI, ESQ. for the appellant adopted and relied on their two briefs as their argument in the appeal and urged the court to allow the appeal and set aside the judgment of the lower court. SIR GOKE ADUROTA on his own part adopted and relied on the respondents, brief as their argument in this appeal. He urged on us to affirm the judgment of the lower court and dismiss the appeal.

The learned counsel for the appellant has formulated (7) seven issues for the determination of the appeal and the issues read:
(i) Whether the learned trial judge was not in error when he granted the reliefs sought by the plaintiff when the plaintiff’s statement of claim was not filed and signed by a person entitled to practice law in Nigeria.
(ii) Whether the learned trial judge was not wrong to have granted judgment in favour of the plaintiffs when all the material averments in the defendant’s/appellant’s statement of defence were unchallenged or uncontroverted by the plaintiffs.
(iii) Whether the learned trial judge was not in error to have granted judgment in favour of the plaintiffs when plaintiffs did not prove title to the disputed property.
(iv) Whether the learned trial court was right to have granted plaintiffs’ reliefs when it was obvious that the order of the Environmental Magistrate Court to sell the disputed land has not been set aside or appealed against.
(v) Whether the trial Court was not wrong to have rejected and held inadmissible the Magistrate Court’s Judgment, Newspaper Advertisement, Receipts of Purchase, Court Summons and the Hope Newspaper when these document (sic) are admissible.
(vi) Whether the learned trial judge did not misconstrue, misapply or misunderstand provision of S.9 (2) of the Public Health Law of Ondo State when it held that the Vendor of the land disposed under this law is not conferred with ownership of such.
(vii) Whether the learned trial judge was not in error when he held that the conditions for revocation of a statutory Right of Occupancy in S.28 (5) (a)-(c) do not include those given by the defendant and that the Environmental Court had acted ultra vires when S.28 (5) of the Land use Act is not exclusive of such conditions and when the plaintiff did not ask the trial court to so hold.

On the part of the respondents, learned counsel on their behalf distilled (6) six issues for the determination of the appeal and they read:
1. Whether the objection raised to the competency of the statement of claim of the respondent was timeously raised at the appeal stage after judgment had been delivered at the conclusion of the whole case that took 7 years and 59 days.
2. Whether the documents pleaded, tendered and rejected or merely tendered for identification and not as exhibits has evidential value under the Evidence Act.
3. Whether the Environmental Magistrate Court or any Magistrate Court of whatsoever grade in Ondo State is vested with statutory jurisdiction to revoke Certificate of Occupancy issued pursuant to the Land Use Act and or whether upon the facts and circumstances of the purported revocation of the 2 Certificates of Occupancy of the respondents the appellant can still be validly vested with title to the 2 plots No. 17 and 18 covered by Exhibits A and B under the Land Use Act.
4. Which law prevails if the State Law conflicts with the Federal Law or what is the legal status of section 9 (1) and (2) of the Public Health Law of Ondo State vis-‘E0-vis that of section 6(1)(a) and (b), 26, 28(5)(a-c), 29, 39 and 41 of the Land Use Act.
5. Whether Plots 17 and 18 Block J covered with Exhibits A and B issued pursuant to the Land Use Act constituted nuisance such that it can lead to a breach of the Public Health Law Cap. 102 Laws of Ondo State and whether Section 9 (2) of the said law validly confer title to the Akure South Local Government that sold the 2 plots 17 and 18 covered with Exhibits A and B to the appellant.
6. Whether the Plaintiffs/Respondents herein have proved their case with credible evidence to warrant having judgment as pronounced by the trial court.

In view of the similarities of the issues raised by counsel on both sides, I think that the issues as formulated by the learned counsel for the appellant would sufficiently determine the appeal. However, before I go into the merit of the appeal, I feel obliged to address a few preliminary issues raised concerning the appeal itself by the learned counsel for the respondents on the one part and the learned counsel for the appellant on the other part.
Learned counsel for the respondents had argued at page 3 of their brief of argument that the whole appeal as it is, is incompetent and in violation of Order 8 Rule 9 of the Court of Appeal Rules, 2011 for non certification of the record of appeal and section 111 of the Evidence Act (?) the said record of appeal being a product of judicial proceedings under section 109 (3) of the Evidence Act. Having relied on ENANG vs. OKUNO & ORS. (1962) 2 NSCC 341 at 344; and ABINA vs. TIKATORE PRESS (1968) 5 NSCC 164 at 165 counsel urged the court to dismiss the appeal.
In reaction to the respondents’ preliminary objection, the learned counsel for the appellant in their reply brief to the respondents’ brief of argument submitted that the preliminary objection raised by the respondents is not raised in compliance with the rules of this court. He urged that since it was wrongly raised we should discountenance same and deem it as abandoned and consequently strike it out.
Regarding this issue, I need to straight away point out that the learned appellant’s submission hereon is at large in that he failed to state the specific rules of this court that was contravened by the respondents’ preliminary objection. Be that as it may, by virtue of Order 10 Rule 1:
“A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
The respondents’ counsel was obviously in violation of the foregoing rules of this court regarding the filing of their preliminary objection. He neither filed a notice of the preliminary objection nor was the appellant herein given the three clear days notice before the hearing. However, Rule 3 of the same Order 10 provides thus:
“If the respondent fails to comply with this Rule, the Court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the respondent or may make such other order as it thinks fit.” (Emphasis mine).
It is obviously at the discretion of this court pursuant to the foregoing, whether or not to entertain the preliminary objection which was raised by the respondents in default of Order 10 Rule 1 (supra). To this end I would in the interest of substantial justice entertain the said preliminary objection.
Without much ado, I have to state that the record of appeal which was transmitted to this court in this appeal on 18th February, 2010 is duly certified and in accordance with the applicable Order 8 Rule 9 of the Court of Appeal Rules, 2011. The preliminary objection to the hearing of the appeal purportedly for non-certification of the record of appeal as raised by the respondents is hereby dismissed for want of merit.

On the other part, the learned counsel for the appellant in their appellant’s reply brief to the respondents’ brief of argument submitted that issues 1, 2 and 4 in the respondents’ brief of argument are defectively raised as they do not emanate from any ground of appeal. He argued that as the appellant that he did not raise any ground of appeal “bothering” (sic) (to read bordering) on timeliness of raising the issue of competence of the respondents’ Statement of Claim. He cited the authority of CATCO Corporation Organised vs. A. R. C (2010) ALL FWLR pt. 517, 677, 681, ratio 3 & 4 where it was held that:

“Issues for determination formulated by an appellant or a respondent who filed no cross appeal must arise from the grounds of appeal filed by the appellant…. a party nor a court is permitted to argue or deal with an issue not related to any ground of appeal.”

Learned appellant’s counsel argued on that apart from the fact that issue one of the respondents’ brief does not emanate from any ground of appeal and that the same does not qualify as an issue; at best it could be an argument. The same argument of counsel goes for issues 2 and 4 of the respondents, brief of argument. Appellant’s counsel urged on us to strike out the said issues 1, 2 and 4 as formulated by the respondents.
I have taken a critical look at issues 1, 2 and 4 of the issues raised for determination as contained in the respondents’ brief of argument and it seems to me and I so hold that issue 1 (one) emanates from ground one of the grounds of appeal and that issue 4 (four) has its root from ground seven of the grounds of appeal. However issue 2 (two) is the one that seems to me to stand alone and without any relationship to any of the grounds of appeal as formulated by the appellant. Accordingly whilst issues 1 and 4 of the respondents’ issues for determination stand, issue 2 fails and as such is struck out, thus leaving us with issues 1, 3, 4, 5 and 6 as the only viable issues formulated by the learned counsel for the respondents.

I shall now proceed with the main appeal which as earlier stated shall be determined based on the issues as raised by the counsel for the appellant. In support of issue (1) one, the learned counsel for the appellant referred to the plaintiffs/respondents statement of claim dated and filed 4th February, 2002 and went on to submit that it was issued, signed and filed by a non-legal practitioner or a person not entitled to practice law in Nigeria. He said that it was filed by Chief Goke Adurota & Co. He argued that Chief Goke Adurota & Co. is not a legal practitioner entitled to practice law in Nigeria. Counsel referred to the case of OKAFOR vs. NWEKE (2007) ALL FWLR (pt. 368) 1016, 1017 at para. 7.
The learned counsel submitted that if the court finds out that Chief Goke Adurota & Co. is not entitled to practice law in Nigeria, the necessary order will be to strike out the claim. If the statement of claim is struck out, the totality of the evidence adduced by the plaintiffs’ witnesses will be struck out or disregarded by this court as evidence can only be predicated on pleadings. Relying on NWARANTA vs. EGBOKA (2006) ALL FWLR Pt. 338, 768, 771, ratios 2, 3 and 4; LAWSON vs. AFANI (2002) 2 NWLR Pt. 752, 599, ratio 19; and IBRAHIM vs. IBRAHIM (2007) ALL FWLR Pt. 346, 475, 476, ratio 1 counsel urged on us to strike out the plaintiffs’ statement of claim for being incompetent, defective and bad in law.
On the other side of the coin is the argument of counsel for the respondents to wit that the Writ of Summons was signed by Chief Goke Adurota and not Chief Goke Adurota & Co. He submitted that the writ of summons which is the prop and foundation of the case of the respondents is very competent.
Learned counsel for the respondents goes on to submit that as to the Statement of Claim filed along with the writ of summons but which was signed with the inscription of “Chief Goke Adurota & Co.” that the respondents filed these two processes on 4th February, 2002. The appellant through his counsel that represented him throughout the trial entered appearance on 5th June, 2002 and they filed their Statement of Defence dated 17th February, 2003 on 19th February, 2003. The respondents filed a reply to the statement of defence dated and filed 14th March, 2003.
The respondents opened their case on 15th February, 2007 and closed on the same day. Appellant opened his own case on 15th May, 2008 and closed same on 20th November, 2008. Written addresses were filed and exchanged and judgment was delivered 31st March, 2009. Counsel submits that the trial from commencement to the date of delivery of the judgment lasted for a period of seven (7) years and fifty nine (59) days and that the objection now being raised as a new ground of appeal was never raised throughout before the trial court.
Against this backdrop the learned counsel argued that the objection now newly raised at the appeal stage is not radical and does not go to the real essence like jurisdiction of the court on the case as opposed to mere formal objection and ought to be raised at the very earliest opportunity otherwise the appellant objecting as it is in this case is deemed to have and in fact he actually waived his right to complain and he accepted the fact that the court processes were regular and proper before the court of trial. By placing reliance on FAWEHINMI vs. NBA (2008) ALL FWLR (Pt. 447) 1 at 12 ratio 14; the learned counsel for the respondents opined that the appellant in the circumstances of the case is stopped by his conduct from raising the objection at the appeal.
Counsel forged on with the contention that this objection to respondents’ processes at the appeal stage is nothing short of preliminary objection and being a preliminary objection as its name imports, it is an objection to be taken before the main action is argued. It is preliminary to the hearing of the main action in the sense that no other proceeding which may amount to a waiver on the part of the objector should have taken place in the entire proceeding. See UBA PLC. v. MODE NIG. PLC. (2002) FWLR Pt. 112 pg. 147 at 149 ratio. 1; and OKOI vs. IBIANG (2003) FWLR pt. 117 pg. 1053 at 1055 ratio. 2. According to counsel if the objection was raised timeously within the 7 years 59 days before the trial court, the respondents would have been given the opportunity of correcting the errors now complained of and to support this claim he relied on TSOKWA OIL MARKETING CO. NIG. LTD. V. BON LTD. (2002) FWLR (Pt. 112) 1 at 5 ratio 2.
Counsel said that it is most unfair on the respondents to now at the appeal abate the suit just on mere technicality.
The learned counsel for the respondents went on to submit that Order 24 Rule 2 of the Ondo State High Court Civil Procedure Rules, 1987 under which this case was contested provides that this type of objection is to be raised by pleading any point of law to enable the trial court dispose with the objection before full trial commences. He said that the appellant did not take up the advantage but waited all these 7 years and 59 days after judgment had been delivered to raise the objection and that for this he is stopped from raising it as a new issue before the appeal court. See the cases of:-
BUHARI vs. INEC. (2009) ALL FWLR pt. 459 pgs. 419 to 629 ratio 61;
EGOLUM vs. OBASANJO & ORS. (1999) 7 NWLR (pt. 611) 355 at 412;
CONSORTIUM MC 36221 OF NIG. vs. NEPA. (1992) 7 SCNJ pt. 1 pg. 8; and
AGAGU vs. MIMIKO & ORS. (2009) ALL FWLR pt. 462 pg. 1122 at 1156.
Counsel also had recourse to the Supreme Court case of COLE vs. MARTINS & ORS. (1968) ALL NLR 161; consequent upon which he submitted that where Chief Goke Adurota signed processes where he is practicing alone as in this case, that he has complied with Orders 5 Rule 12(1) of the Ondo State High Court Civil Procedure Rules, 1987 under which this case was contested and which provides that a firm of Legal Practitioners can validly sign court processes. He went further to state that the objection newly raised is technical and order 5 Rule 28 of the Ondo State High Court Civil Procedure Rules provides that no technical objection shall be raised to any pleading on the ground of any want of form.
While trying to draw an analogy or comparison in the Supreme Court’s decisions in COLE vs. MARTINS (supra) and OKAFOR vs. NWEKE respectively, the learned counsel for the respondents contended that the apex court in OKAFOR v. NWEKE (supra) did not consider or make reference to the earlier decision of COLE v. MARTINS (supra) decided some 38 years before OKAFOR vs. NWEKE (supra).
He submitted that the facts on COLE vs. MARTINS (supra) are grandly in pari material with OKAFOR vs. NWEKE (supra) and that despite the parity of facts and circumstances of the two cases, that the absence of a pronouncement from a full court for all purposes and intendments, COLE vs. MARTINS still continue to gain the effect of bindingness on all authorities and persons.
Counsel argued on by stating that COLE vs. MARTINS has not been specifically over ruled. He said that the appellant’s objection bears more correlation to technicality than substantial justice. That the Supreme Court itself in UNITY BANK vs. OLUWAFEMI (supra) has consistently harped on the need to discard technicalities, where resort to them as in this case on hand would be at the expense of doing substantial justice. Relying on ADEGOKE MOTORS LTD. vs. ADESANYA (1988) 2 NWLR (Pt. 74) 101, the learned counsel submitted that where there are two conflicting decisions on an issue with similar facts and circumstances, the lower court is free to chose which of the decisions to follow that would do substantial justice. Counsel argued that COLE vs. MARTINS (supra), having stood the test of time since 1968 and followed in December, 2006 in UNITY BANK (supra), it cannot be overruled impliedly. Counsel urged on us to adopt COLE vs. MARTINS which has been followed for four decades and not to sweep it under the carpet without a full panel of the apex court overruling same and or setting aside such judgment.
He contended that it is the rule of Supreme Court that provides for the signing of Motions and or Notice of Appeal by a Legal Practitioner unlike Order 5 Rule 12(1) of the Ondo State High Court Civil Procedure Rules under which this case was contested which provides that a Legal Practitioner or his firm of Legal Practitioners could sign court processes. Counsel finally urged us to discard technicalities, do substantial justice and dismiss ground one of the appeal and resolve this issue in the respondents, favour.

In the appellant’s reply brief in response on this issue, the learned counsel for the appellant hammered that if the Statement of Claim upon which the case rests was signed by a person not entitled to so do; that this is not only jurisdictional but that it constitutes grievous act of incompetence; and that incompetence or jurisdictional issue can never be raised belatedly. He relied on IJEOMA vs. PETROMED O. I. NIG. LTD. (2010) ALL FWLR (pt. 539) 1120, 1123, ratio 1.
He went on to note that where a condition precedent for initiating a valid or competent suit has not been complied with; such a court cannot by any means confer on itself a jurisdiction it does not possess; and that there can be nothing more radically jurisdictional than a non-compliance with a condition precedent. See ANYAMOKO vs. OKOYE (2010) ALL FWLR (pt. 539) 1120, 1123 ratio 1.
With regard to Order 5 Rule 28 of the Ondo State High Court Civil procedure Rules, the learned counsel for the appellant submits that it is inapplicable to this case as the objection raised herein does not border on form but on substance.
As for the Supreme Court Rules the learned appellant’s counsel replied that it does not provide for the signing of Motions or Notice of Appeal but that the Legal Practitioners Act stipulates that court processes should be signed by legal practitioner. Counsel urged on us to resolve this issue in favour of the appellant.

RESOLUTION OF ISSUE (1) ONE
It is not in doubt that the Statement of Claim as filed before the trial court in this case was signed by “CHIEF GOKE ADUROTA & CO” and filed 4th February, 2002. The document speaks for itself at page 4 of the record. The trial of the suit which commenced on 15th February, 2007 was determined at the trial court on 31st March, 2009. This is to say that the trial indeed lasted for a period of (7) seven years and (59) fifty nine days. I find this to be a jurisdictional issue bordering on the competence of the process before the court which issue is being raised at this time and stage of the case. How appropriate is it to do so one may ask?
Now, the jurisprudence of jurisdiction as I understand it stipulates that it is never too late to raise a jurisdictional issue. This is to say that it can be raised for the first time even at the Supreme Court which is the ultimate court of the land. There are a plethora of authorities on this some of which are:
i. SLB CONSORTIUM LTD. VS. NIGERIAN NATIONAL PETROTEUM CORPORATION (2011) 9 NWLR 317;
ii. AJAYI VS. ADEBIYI (2012) LPELR-7811 (SC);
iii. OLOBA VS. AKEREJA (1988) 3 NWLR (pt. 84) 508;
iv. ODOFIN VS. AGU (1992) 3 NWLR (pt. 229) 350;
v. ADEYEMI VS. OPEYORI (1976) 9-10 SC.; and
vi. IJEOMA VS. PETROMED O. I. NIG. LTD. (Supra) ratio 1 where it was held that:
“An objection to the jurisdiction of a court to try a case brought to it by litigants goes beyond mere irregularity…… but touches on the root of competence and legality of the court’s authority over the case….. The issue of challenge or objection to jurisdiction can be raised at any stage in the proceedings of a case from the court of trial to the final court…..” [Emphasis mine].

The learned counsel for the respondents is irked by the fact that the appellants went through the whole hog of trial in the suit and never felt the need to raise the objection now being raised. He feels that on the authority of UBA PLC vs. MODE NIG. PLC (supra) and OKOI vs. IBIANG (supra) that this is a preliminary objection which as its name imports, is an objection to be taken before the main action is argued otherwise the objector has to be seen to have waived or acquiesced to the issue being objected to.
Undoubtedly the effect of a preliminary objection is to terminate the proceedings at the stage where the objection is raised as long as there is merit in the objection. See OKEREKE vs. YAR ADUA (2008) 12 NWLR (pt. 1100) 95; NALSA & TEAM ASSOCIATES VS. NIGERIAN NATIONAL PETROLEUM CORPORATION (1991) 8 NWLR (PT.212) 652; and RAILWAY CORP. PENSION FUND VS. ISAIAH AINA (1970) ALL NLR 283.
Now the issue at stake here appears to me to be of a fundamental importance as a result of which decision ought to be reached on its merit.

In OKAFOR vs. NWEKE (2007) 10 NWLR (1043) 521, 530-531 H-D and 531-532 G-A the Supreme Court per Onnoghen, JSC held:
“However section 2(1) of the Legal Practitioner’s Act CAP 207 of the Laws of the Federation of Nigeria 1990 provides 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.”
The respected Justice of the Supreme Court went on to hold that:
“From the above provisions, it is clear that the person who is entitled to practice as a legal practitioner must have had his name on the roll. It does not say that his signature must be on the roll but his name.
Section 24 of the Legal Practitioners Act defines a “Legal practitioner” to be:
“a person entitled to in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office or proceedings.”
The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner he must have his name in the roll otherwise he cannot engage in any form of legal practice in Nigeria. The question that follows is whether J. H. C. OKOLO, SAN & CO. is a legal practitioner recognized by the law.
From the submissions of both counsel, it is very clear that the answer to that question is in the negative. In other words both senior counsel agree that J. H. C. OKOLO, SAN & CO. is not a legal practitioner and therefore cannot practice as such by say filing processes in the court of this country.”
At 531.-532 H-A:
“Since both counsel agree that J. H. C. OKOLO, SAN & CO. is not a legal practitioner recognized by the law, it follows that J. H. C. OKOLO, SAN & CO. cannot legally sign and/or file any process in the courts and as such the motion on notice filed on 19th December, 2005, notice of cross appeal and applicants brief of argument in support of the said motion all signed and issued by the firm known and called J. H. C. OKOLO, SAN & CO. are incompetent in law particularly as the said firm of J. H. C. OKOLO, SAN & CO. is not a registered legal practitioner.” [Emphasis mine]
A careful reading of OKAFOR vs. NWEKE makes it clear to me that the Supreme Court is of the firm view that a firm of legal practitioners (or even a sole proprietorship) whether registered or not is not the same thing as a legal practitioner as envisaged by sections 2(1) and 24 of the Legal practitioners Act (supra). The reference point here is the name of the legal practitioner as it appears on the roll of Legal Practitioners at the Supreme Court. Only that legal practitioner so enrolled in the Supreme Court register can as a matter of fact sign processes filed before the court.

Having the foregoing decision of the apex court starring right at me, I do not think that I need go further in seeking the answer to the instant appeal which is on all fours with it. I am of the strong view that it is immaterial the number of years the action may have lasted. However, what is paramount here is whether the necessary conditions precedent have been complied with. This is not to say that the court is insensitive to the fact that a lot of trouble and cost would have been saved if the application was made earlier than the appellant/objector did. As painful as it may be, the law is still that jurisdictional issues of this nature which touch on the root of the action can be raised at any time even at the Supreme Court as I earlier noted. The apex court must have taken into consideration the respective places of technicality and substantial justice as well as their earlier decision in COLE vs. MARTINS (supra) before it arrived at its latest decision as pronounced in OKAFOR vs. NWEKE (supra). I shall therefore remain guided by OKAFOR vs. NWEKE (supra) which in my humble view I hold to have implicitly overruled COLE vs. MARTINS (supra) in matters relating to the signing of processes meant for the court by legal practitioners whose names are in the roll of Legal Practitioners. The Statement of Claim upon which this case was initiated before the trial court is obviously incompetent having been filed in violation of sections 2(1) and 24 of the Legal Practitioner’s Act (supra). It is for this reason that I shall order a striking out of the said Statement of Claim and it is so struck out.
Seeing that this case has existed like a time bomb waiting to explode as it has now exploded, it follows that the trial court labored in vain having gone into the said trial without the requisite jurisdiction. As the process which gave rise to the judgment being appealed against is incompetent the resultant judgment is in itself a nullity. As the popular saying goes you cannot put something on nothing and expect it to stand. Recourse is had to MACFOY vs. U. A. C. (2006) 16 WRN 185; N.N.B. PLC. Vs. DENCLAG LTD. (2005) 4 NWLR (pt.916) 549 at 573;
MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 341; and EFIOK vs. THE GOVT. OF CROSS RIVER STATE (2010) LPELR-4078 (CA).
This issue (1) one of the appeal is accordingly resolved in favour of the appellant and against the respondents. The resultant effect is that I do not have the requisite platform to wade into the rest of the issues distilled for determination as there is actually no case to be determined.
The appeal in the event is allowed. The judgment of the High Court of Ondo State presided over by Justice Oluwole Fagbe in suit nos: AK/29/2002 delivered 31st March, 2009 is hereby set aside same having been reached without jurisdiction.

SOTONYE DENTON WEST, J.C.A.: I read in advance the judgment of my learned brother Cordelia Ifeoma Jombo-Ofo JCA. I do agree with the judicial conclusion that the appeal is meritorious and/therefore allowed same.
Section 2(1) and 24 of the Legal Practitioners Act Cap 207 of the Laws of the Federation 1990 provides 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.” Section 24 defines “Legal Practitioner” to be:
“A person entitled to in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office of proceedings”
The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner, he must have his name in the roll, otherwise he cannot engage in any form of legal practice in Nigeria. See OKAFOR v. NWEKE (2007) 10 N.W.L.R. (pt. 1043) 521 – 531 H – D Chief Goke Adurota & Co is certainly not on the roll, not being a legal practitioner, cannot sign Court processes.

MOJEED ADEKUNLE OWOADE J.C.A.: I read in advance the judgment delivered by my learned brother Ifeoma Jombo-Ofo JCA. I agree that the trial court lacked jurisdiction to try the case. I also allow the appeal.

Appearances

OLAWOLE OTETUBI, ESQ.For Appellant

AND

SIR GOKE ADUROTA, KSJ. JP.For Respondent