BAWA YARO v. HABIBU MAIDOKI (2016)

BAWA YARO v. HABIBU MAIDOKI

(2016)LCN/8537(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of April, 2016

CA/K/63/2013

RATIO

JUDGMENT: WHETHER DELAY IN DELIVERY OF JUDGMENT CONSTITUTE A GROUND FOR NULLIFICATION OF THE DECISION
A recourse to Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) shows that every Court under that Constitution (which undoubtedly includes the trial Court in this case) shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses. However, Section 294 (5) thereof provides that “The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of the section, unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
It thus becomes clear from the foregoing provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that delay in delivery of judgment perse does not constitute a ground for nullification or setting aside of the decision, the person making an issue out of the delay has a bounding duty to satisfactorily establish that a miscarriage of justice has occurred by reason of the delay. What is to be emphasized is not the mere delay but its effect on the ability of the Court to properly utilize the advantage of having seen and heard the witnesses or whether the Court had lost its impression of the trial due to the delay. See ATUNGWU V, OCHEKWU (2013) VOL. 6 -7 MJSC (Pt. 11) 177; AKOMA V, OSENWOKWU (2014) VOL. 5 MJSC (Pt. 1) 32. PER ISAIAH OLUFEMI AKEJU, J.C.A.
PROCEEDING: PLEADINGS; WHETHER PARTIES CAN DEVIATE FROM THEIR PLEADINGS
it is a basic and settled principle of law that parties are free to formulate their cases as desired by them but once formulated they are bound by it and must establish their case as pleaded. In EHIMARE V EMHONYON (1985)1, NWLR PT 2 117 AT 190 it was held that parties are bound by their pleadings and must stand or fall on those pleadings. They are not allowed to depart from the case they have put forward on their pleadings: Any evidence which is at variance with the pleadings goes to no issue. See also UGOJI V. ONUKOGU (2005) 1 FWLR (Pt. 71) 66; ADEMESO V. OKORO (2005) ALL FWLR (Pt. 277) 84. PER ISAIAH OLUFEMI AKEJU, J.C.A.
LAND LAW: WAYS OF PROVING TITLE TO LAND
It is settled that 5 ways in which ownership of land may be proved by a plaintiff are the following:-
a. By traditional evidence
b. By production of documents of title duly authenticated and executed
c. By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership
d. By acts of long possession and enjoyment
e. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. OYEBANJI V KINLEYE 2011 ALL FWLR 2033 NKADO V OBIONO 1997, 5 NWLR PT 503, 31 AT 38; IDUNDUN V. OKUMAGBA (1976) 9 – 10 5C.277. It is not that a claimant must establish his claim by all these five means and satisfactory proof of one of them is enough for the purpose of proof. PER ISAIAH OLUFEMI AKEJU, J.C.A.
APPEAL: INTERFERENCE WITH EVALUATION OF EVIDENCE; CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT
It has long been settled through a long list of decided cases that the function of evaluation of evidence and the ascription of probative value thereto rests within the domain of the trial Court that had the singular advantage of seeing the witnesses and assessing them, the appellate Court will not ordinarily interfere with the findings of a trial Court except in a situation where it has been shown that such findings are perverse. See C.D.C (NIG) LTD V. SCOA (NIG) LTD (2001) 6 NWLR (PT. 1030)300; ONWUBUARIRI & ORS V. IGBOASOYI & ORS (2011) VOL. 1-2 MJSC I46; OGBECHIE V. ONOCHIE (1988) 1 NWLR (PT.70)370; SHA v. KWAN (2000) 5SC 178; FAGBENRO V. AROBADI (2006)7 NWLR (PT. 978) 174. PER ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

BAWA YARO – Appellant(s)

AND

HABIBU MAIDOKI – Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment) : This appeal is against the judgment of the High Court of Kaduna State, Zaria division delivered on 12th October, 2012 in the matter of Suit No. KDH/Z/14/2003 commenced by the Respondent as the plaintiff through the writ of summons filed on 3/2/2003, and the statement of claim filed therewith. The claim of the plaintiff now respondent against the defendant as endorsed on the writ of summons and averred in paragraph 10 of the statement of claim is for the following:

(a) A declaration that the plaintiff is the owner of the land in dispute.

(b) An order of perpetual injunction restraining the defendant either by himself, agents, privies and or servants from going into the land in dispute

The facts relied upon by the plaintiff as averred in his statement of claim of 10 paragraphs are that he was residing at Gidan Kwanga village, Anchau district within the Court’s jurisdiction and was the owner of the land in dispute as well as the adjacent land having inherited same from his father, late Jarmai, and they had been in possession for over 100 years, it was further

stated that sometimes ago he gave a part of the land in dispute on loan to one Chibi and after the death of Chibi her son Hussaini also worked on the land with the plaintiff’s permission; the plaintiff took over the land from Hussaini and gave his son Ali who worked on it for 3 years consecutively until the year 2002 when the defendant trespassed into the portion of the land in dispute particularly the place given on loan to Chibi and his son Hussaini. The plaintiff averred also that his son Ali was intimidated by the defendant’s son and prevented from going into the land sequel to which Ali could not work on the land in the year 2002, except for other parts thereof and that the defendant has refused to vacate the portion he entered into and is now claiming ownership of same which necessitated this suit. According to the plaintiff (respondent), the disputed land is bounded in the North by Mai Anguwa Barga, East by the plaintiff, South by the plaintiff and West by the Road to Hayi.

The defendant filed a statement of Defence and sought the following by way of Counter claim.

(a) A declaration of title to the farmland in dispute lying and situate at

Gidan Kwanga Village and bounded in the North by Mai Anguwa Barga, East by the plaintiff, South by the plaintiff and West by the Road to Hayi and the defendant’s farm.

(a) An order of perpetual injunction restraining the plaintiff either by himself, his agents, servants or privies from committing acts of trespass on the farmland in dispute;

(b) The cost of this suit.

In the statement of defence, the defendant admitted the boundaries of the land as set out by the plaintiff only that the farmland in dispute is bounded in the West by the road to Hayi and also the defendant’s farms. The defendant denied the plaintiffs claim and stated that the land in dispute originally belonged to his grandfather which was inherited by his father and the brother of his father and that upon the death of his father, the brother of his father by name Yaro Madugu allocated the farmland in dispute to him free of any encumbrances under their native law and custom. It was averred that the defendant had been in possession, ownership and control of the farmland for about 30 years without interference and or challenge from the plaintiff, and or his privies.

At the

trial of the suit, the plaintiff testified for himself and called five other witnesses while the defendant called four witnesses after he had testified for himself. Parties adduced oral evidence and final addresses of the learned Counsel were adopted. The learned trial judge believed the testimony of the plaintiff and his witnesses and gave judgment in favour of the plaintiff, granting the reliefs sought by the plaintiff whereof the defendant (now called the Appellant) dissatisfied with the judgment commenced this appeal with the Notice of Appeal dated 4th January, 2013 with five grounds of appeal.

The Appellant’s brief of argument dated 19/3/13 and filed same day but amended by the Appellants brief of argument dated 6/5/2015 and filed same day was prepared by M.T. MUHAMMAD ESQ, while the Respondent’s brief was prepared by A.Y MUSA ESQ. and filed on 25/4/2013 and the Appellant’s Reply Brief filed on Bl5lL3 was also prepared by M.T. MUHAMMAD ESQ, of Counsel. All the Briefs were adopted and relied upon at the hearing of the appeal.

The issues for determination as formulated by the Appellant’s Counsel are;

1. Whether the inordinate delay in

delivering judgment by the learned trial judge in this matter has not caused some miscarriage of justice

2. Whether the learned trial judge properly evaluated the evidence of parties and if her decision that the respondent’s father first cleared the disputed land is not perverse

3. Whether the order of substituted service is not fundamentally defective in law and the status of proceedings conducted on such service

4. Whether the learned trial judge was right to have held that the disputed land is located in the middle of plaintiffs land.

5. Whether the plaintiff’s/respondent’s suit is not fundamentally and incurably defective in view of the defective signature in the statement of claim and whether such defect does not nullify the whole proceedings, orders and judgment.

The Respondent’s learned Counsel adopted the issues for determination as formulated by the learned Counsel for Appellant in his brief of argument. The consideration and determination of this appeal will be based on these issues.

On issue one the Appellant’s Counsel conceded that it is not every delay in delivery of judgment that is fatal, but contended that

the inordinate delay in the instant case has affected the trial Court’s appreciation of the facts pleaded and evidence led and has occasioned a miscarriage of justice, when the Lower Court held that the Respondent has proved his root of title and established that his father was the first to clear the disputed land whereas no such important issue was ever pleaded.

In response to issue one, the Respondent’s counsel argued that the evidence of all the respondent’s witnesses are ad-idem that he is the owner of the land in dispute which he (respondent’s) inherited from his father who first cleared the land. This piece of evidence was not damaged or controverted as the Defendant/Appellant witnesses, though testified that the Defendant/Appellant inherited the land, none of them stated who first cleared the land. It will therefore be a very wrong assertion that the learned trial judge lost grip of the facts of this case when what the learned judge found and relied on are contained in the testimonies of all the Plaintiff/Respondent’s witnesses. Learned Counsel urged the Court to resolve this issue in favour of the Respondent and in consequence dismiss the

appeal.

The record of appeal shows at page 130 that the Written Address of the Defendant’s Counsel was readopted on the 27rh February, 2012 and the case was adjourned for judgment on the 2nd May, 2012, but the judgment of the trial Court was not delivered until the 12th October, 2012 about five months after the hearing, and no reason whatsoever was given by the trial Court for this delay. Be that as it may, it is trite that not all delay in delivery of judgment invalidates or affects the credibility of judgment; it is only where such delay has occasioned miscarriage of justice which has obviously affected the party raising it that the appellate Court may annul or set aside the judgment.

A recourse to Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) shows that every Court under that Constitution (which undoubtedly includes the trial Court in this case) shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses. However, Section 294 (5) thereof provides that “The decision of a Court shall not be set aside or treated as a nullity solely on the ground of

non-compliance with the provisions of Subsection (1) of the section, unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”

It thus becomes clear from the foregoing provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that delay in delivery of judgment perse does not constitute a ground for nullification or setting aside of the decision, the person making an issue out of the delay has a bounding duty to satisfactorily establish that a miscarriage of justice has occurred by reason of the delay. What is to be emphasized is not the mere delay but its effect on the ability of the Court to properly utilize the advantage of having seen and heard the witnesses or whether the Court had lost its impression of the trial due to the delay. See ATUNGWU V, OCHEKWU (2013) VOL. 6 -7 MJSC (Pt. 11) 177; AKOMA V, OSENWOKWU (2014) VOL. 5 MJSC (Pt. 1) 32. I resolve this issue against the Appellant.

On issue two the learned Appellant counsel submitted that it is settled and elementary law that parties are

bound by their pleadings and cited the cases of OSUJI VS.. EKEOCHA (2009) ALL FWLR (Pt. 490) 614; AGAGU VS MIMIKO (2009) ALL FWLR (Pt. 462) 1122, and submitted also that evidence led that was not pleaded goes to no issue and cited the cases of INEC VS ADC (2009) ALL FWLR (Pt. 474) 1583 and EZE v AKPAN (2009) ALL FWLR (Pt. 461) 954. He further submitted that the Respondent’s case is for a declaration of title on the basis of inheritance but the Respondent however failed woefully in proving the basic test required and cited the case of IROAGBARA VS. UFOMADU (2009) ALL FWLR (pt. 481) 843. The learned Counsel submitted that the Respondent did not plead anywhere how the land was founded. It is therefore wrong evaluation and a perverse decision for the trial Court to hold that the Respondent’s father was the one who founded the disputed land by first clearing same, and that the Respondent/Plaintiff ought to succeed on the strength of his case and not on the weakness of the Appellant’s case and cited the cases of NWABUDE VS. UGODU (2011) ALL FWLR (Pt 604) 26 and EYA VS OLOPADE (2011) ALL FWLR (Pt. 584) 28.

He contended that the learned trial judge did not

properly evaluate the evidence, as the Court would have discovered that contrary to the claim of the Respondent to be the owner of the disputed land on the basis of inheritance from his father, the evidence of the Respondent and his witnesses does not support this claim of the Respondent for declaration of title to the land in dispute on the basis of inheritance from his father.

In response to this issue learned Respondent’s counsel contended that a perverse decision is one in which the Court’s finding is speculative or not based on any evidence and cited the case of OSUJI VS EKEOCHA (2009) ALL FWLR PART 490 page 614 and also referred the Court to page 1092 of the Black’s Law Dictionary 8th Edition for the definition of perverse verdict “…a verdict so contrary to the evidence…” The learned counsel contended that there is evidence from all the plaintiff witnesses that the land in dispute was founded by Jarmai by first clearing same, and that the finding of the Court is not perverse. He contended also that from the pleadings both parties claim the land by traditional history and cited the case of MOGAJI VS CADBURY ACLC VOL 2 PAGE 217 & 267

where KOJO VS BONSIE was cited, he added that the evidence of the Plaintiff/Respondent’s witnesses shows that the respondent has been in possession of the land until the defendant/appellant entered thereon without permission from plaintiff/respondent and even drove away respondent’s son (PW1), which therefore means that the defendant/appellant’s entry and or possession of the land was unlawful and can therefore not be relied upon to ground a grant of the land to the Appellant especially considering the evidence in chief of DW1 at page 122 of the printed record, and under cross examination at page 123 which shows that the Plaintiff/Respondent was cultivating the land 30 years as at the time of giving evidence, as well as the evidence of the DW2. The learned Counsel submitted that there was a material contradiction in the evidence of DW1 and DW2, and it is trite law that where there exists material contradiction in evidence of witnesses such evidence must be rejected. He contended that the Appellant’s witnesses did not disprove the fact that the Respondent was on the land for 30 years before this action, during which he had exercised acts possession by using his

farm, giving some on loan to one Chibi and later Husaini then later to his son shows beyond doubt that Respondent is the person entitled to the use and possession of the land in dispute which the lower Court declared as his own. He added that there is a rebuttable presumption that since the Plaintiff /Respondent owns adjacent lands to the one in dispute, it is possible that he owns the one in dispute which is situate in the middle of two other lands owned by Plaintiff/Respondent, and submitted that even where the Plaintiff/Respondent traditional history was not proved, recourse to other means of proving title will suffice to make the Court to dismiss this appeal and affirm the trial Court’s judgment.

With regards to this issue, it is a basic and settled principle of law that parties are free to formulate their cases as desired by them but once formulated they are bound by it and must establish their case as pleaded. In EHIMARE V EMHONYON (1985)1, NWLR PT 2 117 AT 190 it was held that parties are bound by their pleadings and must stand or fall on those pleadings. They are not allowed to depart from the case they have put forward on their pleadings: Any

evidence which is at variance with the pleadings goes to no issue. See also UGOJI V. ONUKOGU (2005) 1 FWLR (Pt. 71) 66; ADEMESO V. OKORO (2005) ALL FWLR (Pt. 277) 84.

It is settled that 5 ways in which ownership of land may be proved by a plaintiff are the following:-

a. By traditional evidence

b. By production of documents of title duly authenticated and executed

c. By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership

d. By acts of long possession and enjoyment

e. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. OYEBANJI V KINLEYE 2011 ALL FWLR 2033 NKADO V OBIONO 1997, 5 NWLR PT 503, 31 AT 38; IDUNDUN V. OKUMAGBA (1976) 9 ? 10 5C.277. It is not that a claimant must establish his claim by all these five means and satisfactory proof of one of them is enough for the purpose of proof.

It is paramount to note that the law is sacrosanct that where title to land is said to have been derived

by grant or inheritance, the pleadings must aver facts relating to the founding of the land in dispute, the person who founded the land and exercised original acts of possession and person on whom title in respect of the land has devolved since the first founding; PIARO V TENALO & ORS 1976, 12, SC 31.

I have gone through the pleadings of the plaintiff and it contains these essential averments. The plaintiff had averred that his father first cleared the land in dispute and gave part of the land on loan to one Chibi and after the death of Chibi her son HUSSAINI also worked on the land with the permission of the plaintiff. He further averred that he took over the land from Hussaini and gave his son Ali who worked on the land for 3 years consecutively until 2002 when the defendant trespassed onto the said land that led to this action.

The plaintiff pleaded that his father first cleared the land and called witnesses who in turn testified to that effect. The learned trial judge made finding on whether the plaintiff has established root of title to the disputed land at pages 141-142 of the printed record thus;

“From the totality of all the

evidence adduced before this Court which this Court has carefully considered including the address of parties and authorities cited therein, This Court finds and so hold that plaintiff has established before the Court, his root of title to the farmland in dispute by describing the land and its boundaries as well as establishe4 through his witnesses who first cleared the said farmland (i.e. the plaintiff’s father Jarmai – from which the plaintiff inherited same and thereafter plaintiff gave same to his own son Ali). The plaintiff pleaded and all his witnesses established the fact that the plaintiff’s father founded the farmland and the plaintiff also led evidence to that fact.”

The appellant has argued that the trial Court did not evaluate the evidence given by the witnesses and that it was contradictory to some extent.

It has long been settled through a long list of decided cases that the function of evaluation of evidence and the ascription of probative value thereto rests within the domain of the trial Court that had the singular advantage of seeing the witnesses and assessing them, the appellate Court will not ordinarily interfere with the

findings of a trial Court except in a situation where it has been shown that such findings are perverse. See C.D.C (NIG) LTD V. SCOA (NIG) LTD (2001) 6 NWLR (PT. 1030)300; ONWUBUARIRI & ORS V. IGBOASOYI & ORS (2011) VOL. 1-2 MJSC I46; OGBECHIE V. ONOCHIE (1988) 1 NWLR (PT.70)370; SHA v. KWAN (2000) 5SC 178; FAGBENRO V. AROBADI (2006)7 NWLR (PT. 978) 174.

The findings of the trial Court in this case which is supported by evidence and reached after careful evaluation of all the evidence and facts before it cannot be faulted or regarded as perverse.

It becomes clear to me that the trial Court did a proper evaluation of the evidence and the findings based thereon are well founded having been based on the evidence of the parties and therefore not perverse. I resolve this issue in favour of the Respondent and against the Appellant.

The fifth issue in this appeal which I consider as fundamental is whether the plaintiff/Respondent’s suit is in view of the defective signature in the statement of claim not fundamentally and incurably defective and whether such defect does not nullify the whole proceedings, Orders and Judgment. The issue

has been formulated from ground six of the Grounds of Appeal contained in the Amended Notice of Appeal dated 5th May, 2015 but filed on 6th May, 2015 following the grant of the Appellant’s prayer for leave to amend the Notice of Appeal by raising and arguing a fresh issue not raised at the trial Court as well as leave to amend the brief of argument to include argument on the additional ground/fresh issue. These prayers were sought through the Appellants motion on notice that was dated 8th May, 2013 and filed same date but granted by this Court on 4th May, 2015. It was in consequence of this leave of this Court that the Appellant filed the amended Brief of Argument wherein this issue was raised and argued.

On this issue the contention of the Appellant’s Counsel is that for a process of Court to be valid it must have been signed by a person who qualifies as a Legal Practitioner under the Legal Practitioners Act and any process not so signed is incompetent null and void. The cases of OKAFAR v. NWEKE (2007) ALL FWLR (Pt. 368) 1016; SLB CONSORTIUM LTD. V. NNPC (2011) ALL FWLR (Pt. 538) 1902, were cited in support thereof.

It was also submitted that

any Court process signed in the name of a law firm is incompetent by virtue of Section 24 of Legal Practitioners Act, citing IGE V. ADIGUN (2011) ALL FWLR (Pt. 557) 777; ONWARD ENTERPRISES LTD. V. OLAM INT’L LTD. (2010) ALL FWLR (Pt. 531) 1503; OKETADE V. ADEWUMI (2010) ALL FWLR (Pt. 526) 513; NWANI V. BAKARE (2005) ALL FWLR (pt. 261) 1803.

It was contended that the statement of claim in the instant case signed by A.Y. Musa & Co. is incurably and fundamentally defective.

It is worthy of note that the Respondent did not file an amended Brief of argument, and though the learned Counsel adopted the issues for determination as formulated by the Appellant in his brief of argument, the learned Counsel answered issues 1,2,3 and 4 but failed to profer any argument on this issue number five. Notwithstanding this however, the issue will be given the adequate consideration it deserves.

As gleaned from the record of appeal the Respondent as the plaintiff at the trial Court commenced the suit that culminated into this appeal (suit No. KDH/Z/14/2013) through the writ of Summons and statement of claim filed on 312103 at pages 1 ? 4 of the

record. While the writ of Summons was said to have been issued by A.Y. Musa Esq., at page 2 of the record as legal Practitioner for the plaintiff, the statement of claim is at page 4 signed by “A,Y, Musa & Co, (Haruna Chambers), 11, Manchester Road, GRA Zaria” There is therefore nothing on that statement of claim to show that it was prepared or endorsed by a Legal Practitioner. “Legal Practitioner” according to Section 24 of Legal Practitioners Act means 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; and by Section 2 (1) of the same Act, a person is entitled to practice as a barrister and solicitor if, and only if his name is on the roll. The way a Counsel should sign a Court process was restated by the Supreme Court in the case of SLB CONSORTIUM V. NNPC (2011) VOL. 3 – 4 MJSC 145 where at pages 166 – 167 Rhodes – vivour JSC 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 becomes clear that the name or signature of A.Y. Musa & Co. on the statement of claim who obviously is not a legal practitioner has rendered that process incompetent as having not been initiated by due process of law. It was held also in SLB CONSORTIUM V. NNPC (Supra) that this issue of signature is a matter of statute which cannot be waived and it is a jurisdictional issue that can be raised at any stage of the proceedings even in the Supreme Court for the first time. It is settled that due to its fundamental nature and its significance in all proceedings the issue of jurisdiction can be raised at any stage of the case whether at the trial or appellate stage. See OLOBA V. AKEREJA (1988) 3 NWLR (Pt, 84) 508; N.D.I.C. V. CBN & ANOR (2002) 3 SC 1; OWIE v. IGHIWI (2005) 5 NWLR (Pt. 917) l84; IJEBU ODE LOCAL GOVT. V. ADEDEJI BALOGUN (1991) 1 NWLR (pt. 166) 136. Based on the principle of law I had stated in this judgment the consequence of the statement of claim being signed by “A.Y. Musa & Co.” which name does not belong to

a legal practitioner is that the said statement of claim is incompetent and it is accordingly set aside. The case of the Respondent therefore did not come before the Court in line with due process making the Court incompetent. See MADUKOLU V. NKEMDILIM (1962) 2 NSCC 374. The final result is that the evidence received by the trial Court and the entire proceedings including judgment were not based on any valid pleadings and cannot stand. It is well recognized in law that one cannot put something on nothing, it will not stand; UAC V. MCFOY (1962) AC 152.

I therefore resolve this issue in favour of the Appellant.

Let me state that I did not limit the consideration and determination of this appeal to this fifth issue but took the pain to go through and consider the other material issues in the appeal because of the position of the apex Court that this Court as an intermediate appellate Court should consider and pronounce upon issues properly placed before it in an appeal. See TITILAYO V. OLUPO (1991) 7 NWLR (Pt. 205) 519; FED. MINISTRY OF HEALTH V. C.S.A. LTD. (2009) 9 NWLR (pt. 1145) 193.

Before I conclude this judgment I should refer to

the Appellant’s Reply Brief filed on 8/5/13 and relied upon by the Appellant. I do not see any value the Reply Brief added to the appeal, as it has not answered any new point raised by the Respondent. The purpose of a Reply Brief is to answer new points raised by the Respondent and not repeat or re-argue the issues already joined. See OCHEMAIE V. STATE (2008) 6 ? 9 SC (Pt. II) 1; OKPALA V. IBEME (1989) 2 NWLR (Pt. 102).

I therefore discountenance the Appellant’s Reply Brief.

The full import of my resolution of the fifth issue is that the trial High Court of Kaduna State lacked the competence and jurisdiction to hear and determine the case No. KDH/Z/14/2003 which led to this appeal and the case is accordingly struck out.

This appeal succeeds on this issue and I allow it with cost of N30, 000.00 in favour of the Appellant.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Isaiah Olufemi Akeju, JCA. His Lordship has considered and resolved the issues in contention in this appeal.

One of the issues raised in this appeal is

the competence of the statement of claim upon which the trial in the lower Court was conducted. It was contended that the statement of claim was signed in the name of a law firm, A. Y. Musa & Co, instead of in the name of a legal practitioner called to the Bar and enrolled to practice law in Nigeria. A look through the records of appeal reveals that while the writ of summons was signed in the name of A. Y. Musa Esq., the statement of claim was indeed signed in the name of A. Y. Musa & Co and that the trial in the lower Court was conducted on the basis of these processes. These facts were not contended by the Respondent.

The present position of the law on the subject as established by a long line of Supreme Court decisions is that such a statement of claim is a nullity and it is void ab initio and being a statement of claim, it cannot sustain a cause of action and a judgment predicated on such a process must be set aside. It is a requirement of substantive law, and not of procedural law, and thus it cannot be waived and it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by such signing

of the Court process and it is an issue that can be raised even at the Supreme Court for the first time – Okafor Vs Nweke (2007) 10 NWLR (Pt 1043) 521, Oketade Vs Adewunmi (2010) 8 NWLR (Pt 1195) 63, SLB Consortium Ltd Vs NNPC Q011) 9 NS7LR Pt 1,252) 317, Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444, Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt 1348) 570, Minister of Works and Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt 1351) 487 and Okarika Vs Samuel (2013) 7 NWLR (Pt 1352) 19.

?The concomitant effect of this is that the entire evidence led by the Respondent in proof of the averments contained in the defective statement of claim went to no issue and the judgment predicated on the statement of claim is liable to be set aside. It must however be stated that the action itself is not incompetent because the originating process, the writ of summons, was signed by a recognized legal practitioner. And since the defective statement of claim is a nullity and void ab initio, it will be treated as if the Respondent never filed a statement of claim in the matter and that the

evidence led at trial on the strength of the defective statement of claim never took place. The Respondent is at liberty to take fresh steps to file a competent statement of claim and to have his case heard afresh on the merits. It is in this wise that I do not see the need to resolve any of the other issues arising in the appeal, which touched largely on the evaluation of evidence by the lower Court and the effect of the almost six months delay in the delivery of the judgment. The resolution of the other issues in this appeal may compromise and cause problems for the parties in the event that the Respondent undertakes to have his claims tried all over again in the lower Court, as he is entitled to.

I find merit in the appeal and I hereby allow it. The statement of claim filed by the Respondent before the lower Court and dated the 28th of January, 2003 is hereby struck out and the judgment of the High Court of Kaduna State in Suit No KDH/Z/14/2003 delivered by Honorable Justice Mairo L. Mohammed on the 12th of October 2012, which was predicated on the defective statement of claim, is set aside. I hereby order that the case file be remitted to the Chief

Judge of Kaduna State for reassignment to another Judge to enable the Respondent, if he so desires, to take steps to have his claims heard all over again on the merits. I make no order as to cost.

AMINA AUDI WAMBAI. J.C.A.: I have read the lead Judgment just delivered by my learned brother, ISAIAH OLUFEMI AKE”IU, JCA. I agree with his reasoning and conclusion that the writ of summons which initiated the suit at the Lower Court was incurably incompetent having been signed by

“A. Y. Musa & Co (Haruna Chambers) 11 Manchester Road, GRA, Zaria” who is not a Legal Practitioner.

This settled position of Law clearly enunciated in OKAFOR V. NWEKE (2007) 10 NWLR (Pt. 1043) 521 has been re-stated over and over again consistently in a plethora of authorities that it is now firmly established that a Court process or any Legal document intended to be filed in the Court by a Legal Practitioner can only be signed by a Legal practitioner within the meaning and intendment of Sections 2(1) and 24 of the Legal Practitioner Act Cap 11 LFN 2004 and not a Legal firm or partnership. See OKETADE V. ADEWUMI & 4 ORS (2010) 2-3

SC (Pt. 1) 140, ROYAL UNITED .NIG. LTD. V. STERLING PLC (2008) LPELR 8408 (CA), OGUNDELE V. AGIRI (2009) 18 NWLR (Pt. 1173) 219, NDIC V. LAGOS STATE GOVT & ORS (2009) LPELR – 4611 (CA).

It is therefore now a cliche that any process signed by a firm of Legal Practitioners outrightly flies in the face of the Law as such a firm is not a Legal Practitioner as contemplated by the said provisions of Sections 2(1) and 24 of the Legal Practitioners’ Act. See DAN AZUMI BELLO V. ADAMU (2011) LPELR 3722, OKAFOR V. NWEKE (SUPRA). I should also emphasize that it is no longer a moot point that by the combined effect of Sections 2(1) and 24 of the Legal Practitioners Act only human beings called to the bar are entitled to practice by signing or filing documents in the Court. A Law firm or partnership not being a human being cannot sign or file any process or document. Thus Where a Counsel is required to sign a document, it is a person whose identity is ascertainable from the roll of Legal Practitioners that must append his signature. See OKETADE V. ADEWUMI (SUPRA), S.G.D CO. V. OMENKEUKWU (2011) LPELR 5107 (CA), UNION DICON BOLT V. NASIRU

(SUPRA).

For this and fuller reasons proffered in the lead Judgment, I hold that the suit was not properly initiated at the Lower Court.

The writ was incurable defective, null and void, amounting to nothing, and afortiori, the entire proceedings could not have been placed on the nothingness. See UAC V. MCFOY (1962) AC 152. On this ground alone, the appeal succeeds and it is hereby allowed.

Appearances

M.T. MUHAMMAD, ESQ.For Appellant

AND

A.Y MUSA, ESQ.For Respondent