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AJIBOLA v. TALABI & ANOR (2022)

AJIBOLA v. TALABI & ANOR

(2022)LCN/16137(CA)

In the Court of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, March 25, 2022

CA/IB/40/2012

Before Our Lordships

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

CHIEF ABIMBOLA AJIBOLA APPELANT(S)

And

1. FEMI TALABI 2. OLADEJO BABALOLA AKANBI RESPONDENT(S)

 

RATIO

THE MANNER IN WHICH A LEGAL PRACTITIONER SHOULD SIGN LEGAL PROCESSES TO BE FILED IN COURT

The manner in which a legal Practitioner shall sign processes to be filed in Court has been restated severally and in the case of EMEKA V CHUBA-IKPEAZU (2017) LPELR-41920(SC) as follows:
“This Court had laid down the ground rules on what should be to qualify for an appropriate signing of a legal practitioner on a legal especially as it relates to an originating process such as a Notice of Appeal or such like. In the case of SLB Consortium Ltd v NNPC (2011) 9 NWLR (Pt. 1252) 317 at 337 -338, the Supreme Court per Rhodes – Vivour JSC stated thus:-
“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 written. Thirdly, who the counsel represent. Fourthly, name and address of legal firm.
Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e, the Legal Practitioners Act).” In the lead judgment, Onnoghen JSC (as he then was) at pages 331 – 332 (paras H – A) held that:
“… A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice.”
At 332 (Para E) it was further held thus:
“It has been argued that non-compliance with the provision of Order 25 Rule 4(3) supra is mere irregularity… as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of Madukolu v Nkemdilim (supra)… the provision of the Rules of Court involved herein are by the wordings mandatory not discretionary.”
The Apex Court had in OKAFOR V NWEKE (2007) 10 NWLR (PT. 1043) 521 where the process in contention was signed above the name of J.H.C. Okolo, SAN & CO., stated as follows on what should be thus:-
“…. J. H.C. OKOLO SAN & CO. is not a legal practitioner and therefore cannot practice as such by say, filing processes in the Courts of this country. It is in recognition of this fact that accounts for the argument of learned Senior Advocate for the applicants that to determine the actual person who signed the processes evidence would have to be adduced which would necessarily establish the fact that the signature on top of the inscription J.H.C. OKOLO. SAN & Co. actually belongs to J.H.C. OKOLO, SAN who is a legal practitioner in the roll. I had earlier stated that the law does not say that what should be in the roll should be the signature of the legal practitioner but his name. That apart, it is very clear that by looking at the documents, the signature which learned senior advocate claims to be his really belongs to J.H.C. OKOLO & CO. or was appended on its behalf since it was signed on top of that name. Since both counsel agreed that J.H.C. OKOLO, SAN & CO. is not a legal practitioner recognized by the law, it follows that the said J.H.C. OKOLO, SAN & CO. cannot legally sign and/or file any process in the Courts…” Per Onnoghen JSC.”
PER NIMPAR, J.C.A.

WHETHER OR NOT THE REQUIREMENT FOR A LEGAL PRACTITIONER TO SIGN ALL PROCESSES TO BE FILED IN COURT IS A STATUTORY REQUIREMENT THAT RULES OF COURT CANNOT OVERRIDE

I agree that the issue is beyond the Rules of Court, the requirement for a Legal Practitioner to sign all processes to be filed in Court is a statutory requirement that Rules of Court cannot override, see ELABANJO & ANOR V. DAWODU (2006) LPELR-1106(SC) wherein the apex Court held:
“It is settled that the rules of Court are not as sacrosanct as statute or an Act. See Katto v. Central Bank of Nigeria (1991) 12 SCNJ 1 at 17; (1991)… Rules of Court cannot override statutory provisions of the law. See Alhaji Edun v. Odan Community, Ado Family etc (1980) 11 SC 103 at 124.” Per ONU, J.S.C
The writ of summons which is the initiating process was not signed by the learned Counsel whose name is inscribed on the writ, it is only the name of Chief Abimbola Ajibola without signature. It is trite that an initiating process must be signed by the solicitor or the party himself but it must be signed. And if issued by the solicitor, the law is that an unsigned writ of summons is rightly void and not even an amendment could cure the defect, see OKWUOSA V. GOMWALK & ORS (2017) LPELR – 41736 (SC) and GOVERNOR, BORNO STATE & ORS V. MOHAMMED (2019) LPELR-47071 (CA) wherein the Court held thus:
“… However where an originating summons is void ab initio like when it is not initiated by due process, the process is incurably defective and cannot be subject to amendment. It is settled law that a fundamentally defective document such as an Originating process cannot be amended to infuse life into it. In other words, a fundamentally defective originating process cannot be cured by an amendment of same nor can anything be added to it, the well-known adage being that you cannot put something on nothing and expect it to stand. You can only validly amend a valid originating process, not a fundamentally defective one which in the eye of the law does not exist. See: NWAIGWE & ORS V. OKERE ANOR (2008) 5 SCNJ 256 at 274
. PER NIMPAR, J.C.A.

THE POSITION OF LAW ON WHEN THE IDENTITY OF A LAND IS IN ISSUE

The identity of the land in question was made an issue by the Respondents in their statement of defence, see paragraphs 13 and 18 of the statement of defence at page 50 of the record of appeal. The law is that identity can only be an issue when the Defendant makes it an issue in his defence, see ANYANWU & ORS V. UZOWUAKA & ORS (2009) LPELR-515(SC) wherein the apex Court held thusly:
”In NWOBODO EZEUDU & ORS v ISAAC OBIAGWU (1986) 2 NWLR (Part 21) 208 at 220 this Court, Per Oputa JSC, spoke of the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said: “The identity of land in dispute will be in issue, if, and only if, the Defendants in their Statement of Defence made it one – that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there, I will make bold to say that the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered By consent.” Per TABAI, J.S.C. PER NIMPAR, J.C.A.

THE POSITION OF LAW WHEN THE ISSUE OF IDENTIFY OF A LAND IN DISPUTE IS RAISED

When the issue of identity is so raised the burden is on the Claimant to lead evidence on the identity of the land to which the claim revolves, see FATUADE V. ONWOAMANAM (1990) LPELR-1253(SC) wherein the Supreme Court held as follows:
“While it is the law that in an action for declaration of title to land, the burden is on the plaintiff to prove the identity of the land to which his claim relates, Kwadzo v. Adjei (1944) 10 W.A.C.A. 274, in this case, in my view, on the facts before the trial Court, the identity of the subject matter in dispute was not in question. The identity of the land would only be in issue if, and only if the defendant in his statement of defence made it one.

See Ezeudu v. Obiagwu (1986) 2 N.W.L.R. (Pt. 21) 208 at 210.” Per KAWU, J.S.C
The Claimant can only succeed in proving the identity of the land by adducing credible evidence such that ascertains the land in dispute without any doubt and it must be so clear that it leaves no one in doubt as to the specific area claimed such that a surveyor can produce a plan showing accurately the land in dispute. Another better way identified by Superior Courts is for the Claimant to file a Survey plan which reflects boundaries, location or extent of the land he is claiming. Such a plan must also show the dimensions of the land, location and salient features on the land.
PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the Oyo State High Court sitting in Ibadan and delivered by HON. JUSTICE WAIDI K. OLAIFA on the 4th day of April, 2014 in suit NO: I/670/2003 wherein the lower Court dismissed the claims of the Appellant on the grounds that the writ of summons was not signed by a legal practitioner known to law; and in obeisance to apex Court admonition for trial and intermediate Courts to resolve all issues, the trial Court determined the issues and found that the Appellant failed to establish his root of title and dismissed the reliefs claimed by the Appellant. The Appellant dissatisfied with the decision, filed an Amended Notice of Appeal on the 28th January, 2021 setting out 7 grounds of Appeal.

​Facts leading to this appeal are straightforward and amenable to a brief summary. The Appellant took out a writ of Summon filed on 13th day August, 2003 accompanied with a statement of claim at pages 1-6 of the record claiming a declaration of title to 2 parcels of land at Owode Area Abeokuta Road Bode Igbo, Ibadan more particularly shown in plan number OG1171/82 and OG298A & B/76 of 25th March, 1976 signed by Surveyor Chief S. Akin Ogunbiyi. The Appellant as Plaintiff claim as follows:
i. A declaration that the Plaintiff is entitled to a Statutory Right of Occupancy in respect of two plots of land marked A & B on plan No.: OG1171/82 drawn by Chief Ogunbiyi licensed Surveyor and dated 12/11/82 situate, lying and being at Bodegbo Owode Area, Off Abeokuta Road, Ibadan.
ii. N500,000 as general damages for trespass committed on the said plot of land since 2001, the trespass still continues.
iii. Injunction restraining the Defendants, their Servants, agents, privies and those claiming through them from further acts of trespass.

​The Appellant’s case is that the original owner of the plot was one Olukotun who had four children: Larinde Onigbinde, Adedapo Babalola, Adekanmi and Oladiti Owolabi and the land was partitioned amongst them. The Appellants submit that Adedapo Babalola sold a part of his land to Messr Lamidi Otesuku and Josiah Olorunju Adewumi by two separate deeds registered as No. 12/12/1946 and 13/13/1946 respectively and it was this land that was sold to the Appellant by Messr Lamidi Otesuku and Josiah Olorunju Adewumi.

​On the other hand, the Respondents agreed that Olukotun was the original owner of the land and the 2nd Respondent who is a member of the Olukotun family deny being a vendor of Messr Lamidi Otesuku and Josiah Olorunju Adewumi. The Respondents’ case was that Olukotun begat Majewogbe and Durodola, Majewogbe begat Adeoye, Adebomi, Adesokan, Oladiti Owolabi while Durodola begat Babalola. Thereafter, Babalola begat Makanjuola, Salawu Adeleke Adedapo, T. Adekemi, Oladejo Akangbe, Olubiyi and Adisa. Continuing, the Respondent submits that Olukotun’s land was partitioned between his two sons and that the disputed land belongs to Durodola section and the land is situate at Olukotun Village, Oganla Road, Apata-pete Area, along Abeokuta Road, Ibadan measuring approximately 5138.384 square metres. And by virtue of a land sale agreement dated 1st day of June, 1977 and of which the Mogaji of Olukotun family was a signatory when the claimant bought the Land. It was also the Respondents case that the 1st Respondent surveyed the land in 1978 in Survey Plan No. MAK/327/78 prepared by M.A. Koiki, licensed Surveyor.
The 1st Respondent also made it his case that the land which the Appellant is claiming is unknown and undefined to him and that the survey of the Appellant does not relate to the land purchased by him. The Appellant called 5 witnesses and tendered 4 Exhibits while the Respondents called 2 witnesses and tendered Exhibit D5 and D6. The trial Court dismissed the claim and the Appellant aggrieved with the said judgment brought the instant appeal.

Pursuant to the Rules of the Court, the parties filed and exchanged their briefs which were adopted at the hearing of the Appeal. The Appellant’s Amended brief settled by PRINCE ABIOYE A. OLOYEDE-ASANIKE, ESQ., is dated 28th day of January, 2021, filed on 29th January, 2021 but deemed on the 24th day of June, 2021. The Appellant distilled 5 issues for determination as follows:
1. Whether the Statement of Defence dated 19th of November, 2003 filed on the 26th day of November, 2003 at pages 18-19 of the records by Chief J.O. Sobayo and co and all subsequent amendments therein are competent.
2. Whether the Honorable Court was right when it held at page 155 of the record that the failure of the Claimant to sign the writ of summons rendered the writ incompetent.
3. Whether the identity of the land in dispute is made sufficiently clear to or made sufficiently clear by the Claimant to the Defendant in his amended statement of claim.
4. Whether the Honourable Court was right to have expunged all the exhibits tendered by the Claimant before the Honourable Court including those admitted after a Court ruling by the Honourable Court page 169.
5. Whether the claimant sufficiently proved his title before the Honourable Court, see pages 167-169 for proof of the title of his vendor.

The Respondents’ Amended Brief settled by OLAKUNLE A. FAOKUNLA, ESQ., is dated 31st day of August, 2021, filed on the 1st September, 2021 but deemed 30th September, 2021 wherein the Respondents formulated 3 issues for determination as follows:
1. Whether from the totality of the originating processes before the trial Court, the learned trial Judge was not right when the Court held that the suit of the claimant was not properly constituted. Relates to grounds 1 and 6 of the Appellant’s Grounds of appeal.
2. Whether the deed of conveyance registered as No. 13 at page 13 in Volume 1946 of the Register of Deeds, Ibadan Exhibits 1, 2, 3 and 4 were properly rejected by the trial Court. Relates to grounds 2 and 4 of the Appellant’s grounds of appeal.
3. Whether the Appellant as Plaintiff before the trial Court discharged the onus of proof on him in an action for declaration of title to land. Relates to grounds 3, 5 and 7 of the Appellant’s ground of appeal.

Thereafter the Appellant filed a Reply Brief dated 29th day of September, 2021 but deemed the 10th January, 2022.

APPELLANTS’ SUBMISSION
ISSUE ONE
The Appellant reproduced the holding of the trial Court at page 166 of the record to submit that the proper person who can file a Court process is a person called to the Nigerian Bar as provided in Sections 2 and 24 of the Legal Practitioners Act, the case of OKAFOR V. NWEKE (2007) ALL FWLR (PT. 368) 1016 and OLU ODE OKPE V. FAN MILK PLC & ANOR (2016) LPELR-42562, therefore, the statement of defence filed on behalf of the Respondents at pages 18-19 of the records suffers the same incompetence as the Appellant’s reply referred to by the trial Judge at page 166 and ought to have been struck out and declared null and void.

ISSUE TWO
In arguing this issue, the Appellant reproduced the holding of the trial Court at pages 153-155 of the records and Order 5 Rule 1 of the High Court (Civil Procedure) Rules to submit that the duty placed on the claimant is not to sign the writ of summon but file an application by completing form 1 in the appendix the rule and the said appendix did not provide for signature of the claimant, therefore, it is not the signature of the Applicant that validates the issuing of the writ of summons as held in OBIANWUNA OGBUANYINYA & ORS V. OBI OKUDO & ORS (1990) LPELR 2294.

It was the argument of the Appellant that the Respondents waited 7 years to raise the issue of irregularity when the case was already concluded, therefore, the right to complain has been waived as the Court held in CHIEF ADEYEMI ALE V. CHIEF OGUNDELE ADELEYE & ORS (2014) LPELR-22782. Continuing, the Appellant submits that it is the signing of a writ and the imprint of the Court seal that makes a writ valid as held in AUGUSTINE O. ANUNOBI V. MR. HASSAN & ANOR (2013) LPELR-21870, JALBAIT VENTURES NIG LTD & ANOR V. UNITY BANK PLC (2016) LPELR-41625, OGBUANYINYA V. OKUDO (1990) 4 NWLR (PT. 146) 551, SAUDE V. ABDULAHI (1989) 4 NWLR (PT. 11) 387 and FADA V. NAOMI (2002) 2 NWLR (PT. 7505) 318.

The Appellants submits that signature or any omission of it cannot determine the validity of the Writ of Summons.

ISSUE THREE
Arguing this issue, the Appellant submits that the trial Judge held in his judgment that the Respondents in their Amended Statement of Defence particularly at paragraphs 13 and 18 thereof claimed that they do not know the land the Appellant was claiming and also that the Appellant did not file a competent Reply. Predicated on the above, the Appellant argued that obviously, the 2 paragraphs raise the issue of identity of the land and it is trite that the only way to show the identity of the land is to prepare a survey or composite plan to show the relationship of the land to each other as held in PETER OKONKWO & ORS V. BERNARD OKNOKWO & ORS (2010) LPELR-9357, ELISHA KWEWUM V. BAKO EYI (2015) LPELR-25633, EBVEHEN V. UKPAKARA (1966) NWLR 254 and ADONE V. IKEBUDU (2001) 8 NSCQR.

Relying on the authority of MICHEAL ODUNZE & ORS V. NWOSU-NWOSU & ORS (2007) LPELR-2252 the Appellant submits that both PW2 and PW3 who are Plaintiff’s vendor described the land they bought from 2nd Respondent and other members of his family and also said a survey of the land in dispute was attached to the registered conveyance they obtained from the 2nd Respondent and members of his family on purchase of the land, these conveyances are the documents registered as Nos: 12/12/1946 and 13/13/1946 at the Lands Registry office Ibadan on 21st day June, 1976 but dated 11th day of June, 1976. The Appellant reproduced the evidence of PW4 at pages 87-88 of the record to submit that if the 1st Respondent claims that he does not know the land in dispute then why did he chase PW4 out of the land? Furthermore, the Appellant submits that the 1st Respondent knows the land in dispute very well and the identity of the land has been established by the Appellant, he urged the Court to resolve this issue in favour of the Appellant.

ISSUE FOUR
The Appellant reproduced the holding of the trial Judge at page 57 of the records where the trial Judge rejected the photocopy of Certified True Copy of Deed Conveyance of Mr. Josiah Olorunju Adewumi dated 11th June, 1976 on the grounds that a photocopy of Certified True Copy is inadmissible as held in ALADE V. OLUKADE 76-12, however, the law has moved away from this position, the recent position of law regarding admissibility of photocopy of Certified True Copy is that they are admissible and need no further certification under Section 111(i) of the Evidence as held in IFEANYI ESIONE V. PHILIP ISIOFIA (2016) LPELR 41060, DANIEL TAYAR TRANS ENT (NIG) LTD V. BUSARI (2001) 1 NWLR (PT. 695) 482and ACB PLC V. NWODIKA (1996) 4 NWLR (PT. 442) 470. The Appellant submits that the trial Judge was wrong to reject the Certified True Copy of the Deed of Conveyance of Mr. Josiah Olorunju Adewumi and urge the Court to re-evaluate the said evidence because the reasons for the rejection as contained at pages 170-171 are no longer tenable in law and not convincing.

​It was the argument of the Appellant that the law is trite that relevancy determines admissibility of evidence, hence the Appellant pleaded the documents because they are relevant to his case, therefore, the said documents are admissible as provided under Section 97(1) of the Evidence Act, 2011 the cases of DR. IMORO KUBOR & ANOR V. HON. SERIEKE HENRY DICKSON & ORS (2012) LPELR-9817 and JUSTUS NWABUOKU & ORS V. FRANCIS ONWORDI & ORS (2006) LPELR-2082.

Furthermore, the Appellant submits that all the documents already admitted or rejected by the trial Judge are relevant to the case before the Court and they were therefore wrongly rejected. The Appellant urge the Court to resolve this issue in favour of the Appellant.

ISSUE FIVE
The Appellant in arguing this issue submitted that it is trite that title to land can be established in 5 ways and in proving the title of the Appellant, the Appellant tendered the Deed of conveyance of his vendors (Exhibit 1), an agreement and a survey plan in evidence which were made 33years ago, hence such documents are presumed to be genuine as provided in Section 155 of the Evidence Act, 2011 and the case of FRANCIS ADESINA AYANWALE V. OLUMUYIWA OLUMIDE ODUSAMI (2011) LPELR-8143. Continuing, the Appellant submits that it is trite law that the Appellant has a duty to establish the identity of the land and where the identity of the land is known to both parties there is no longer an issue about its identity as held in DAKOLO V DAKOLO (SUPRA), CHIEF BANKOLE & ANOR V. PRINCE JAMES ADEYEYE & ANOR (2010) LPELR-8593 and RESSEL LY DAKOLO & ORS V. GREGORY REANE DAKOLO & ORS (2011) LPELR 915.

It was the argument of the Appellant that it is also interesting to note that the two parties in this case derived their title from a common source therefore the law in such a case is that the first in time has the strongest title as held in FRANCIS ADESINA AYANWALE V. OLUMUYIWA OLUMIDE ODUSAMI (SUPRA) and the 2nd Respondent who sold the land to the 1st Respondent is one of the vendors of the Appellant’s vendor even though he claimed that the land he sold to the Appellant is in another area, therefore, the trial Judge was wrong when he said the Appellant didn’t prove his title to the land in dispute. The Appellant urged the Court to allow the appeal.

RESPONDENTS’ SUBMISSION
ISSUE ONE
Arguing issue one, the Respondents submit that the Appellant’s writ of Summons in the Court below was not signed by the Appellant or his Counsel and by Order 5 Rule 1 and Order 5 Rule 15 of the Oyo State High Court (Civil Procedure) Rules, 1988 the signing of the writ of summons by the Plaintiff is a condition precedent necessary to activate the jurisdiction of the Court and is different from the issuance of the Writ of Summons by the Registrar as held in UDO V. ADUA & ORS (2019) LPELR-47091(CA), ALHAJI UMAR ALIYU TECHNICAL V. FIRST BANK OF NIGERIA PLC & ANOR (2018) LPELR-44663 (CA), FASEHUN V. A.G. FED (2006) 43 WRN 99, OMEGA BANK V. OB.C. LTD (2006) 4 WRN 1, EZECHUKWU V. ONWUKA (2003) 175 FWLR 528, OKAFOR V. NWEKE (2007) 19 WRN 1, MR. THEODORE BASSEY DANNET-OWOO & ANOR V. MR. FRANCIS EFFIONG (2020) LPELR-50079 (CA), FEBSON FITNESS & ANOR V. CAPPA HOLDINGS LIMITED & ANOR (2014) LPELR-24055 (CA) and CHUKWUJINDU V. AMCON (2019) LPELR-47318 (CA).

It was the submission of the Respondents that the Appellant wrongly argued that Order 5 Rule 1 does not impose a duty on the Appellant or legal practitioner to sign the writ once it has been signed by the Registrar and that the Writ is merely defective, that it can be waived but not signing a document is a substantive defect which cannot be cured by the provisions in the rules of Court. The Respondents relied on GITTO COSTRUZIONI GENERALI NIGERIA LIMITED V. EDIDIONG EDET JONAH (2017) LPELR-43487(CA). The Respondents submit that it is the Administrative function of the Registrar to sign a writ of summons filed before them whether rightly or wrongly to authenticate it but not to validate it because it is the Court that determines whether the action was rightly or wrongly initiated as held in GOVERNMENT OF OYO STATE V. ARCHITECT NIYI AIYEGBAJO & ANOR (2018) LPELR-44278 (CA) and the holding of the trial Judge at page 155 of the record, therefore, all the evidence and structures built on all the said originating processes including amendments must collapse.

Furthermore, the said statement of defence did not contain a Counter claim as to initiate a proceeding which was amended, therefore, the said defect on the statement of Defence is not a substantive irregularity but a procedural irregularity which the Appellant did not object to it. The Appellant citedDR. YUSUF MUSA NAGOGO V. CONGRESS FOR CHANGE & ORS (2012) LPELR-15521 (SC) and EFFIOM V. UDOEKA (2017) LPELR-43342 (CA), hence the decision of the trial Judge that failure to sign the writ of summons rendered the writ incompetent and dismissed the Plaintiff’s case is correct.

ISSUE TWO
The Respondents’ submit that the Appellant in his evidence-in-chief as PW1, to tender two documents on Plot A which was admitted as Exhibit I and on Plot B, it was rejected, the Appellant argued that the document on Plot B were photocopies of certified true copies of public documents and are admissible, however, relying on OGBORU V. UDUAGHAN (2011) 577 AFWLR 650; MUDASHIRU V. STATE (2019) LPELR-47946 (CA) and JALO & ANOR V. GAMBO & ORS (2019) LPELR-49208 (CA), the Respondents submits that the trial Judge was right in rejecting the photocopy of the certified true copies of the public document.

The Respondents reproduced the holding of the trial Court where the Judge regarded Exhibits 1, 2, 3 and 4 as documentary hearsay thereby expunging and not relying on them (see page 167-169 of the record), and the Respondent submits that the reasons advanced by the trial Judge are sound in law and failure of the Appellant to appeal makes the finding unassailable and binding on parties as held in ADAMU V. ESONANJOR (2014) LPELR-41137 (CA) and BROSSETTE MANUFACTURING NIG LIMITED V. ILEMOBOLA LIMITED & ORS (2007) LPELR-809 (SC). The Respondents argued that it is the law that where a party complains of wrongful rejection of evidence, it is not enough to show that the evidence was wrongfully rejected but must go further to show that if the evidence had been admitted and acted upon the decision would have been different. The Respondents referred the Court to the case of RAB OIL (NIG) LTD & ANOR V. OBILEYE & ORS (2021) LPELR-53467(CA) and AYABAM V. C.O.P BENUE STATE (2019) LPELR-47283(CA).

The Respondents urge the Court to resolve this issue in their favour and to hold that the said Exhibits were properly rejected by the trial Judge.

ISSUE THREE
In arguing this issue, the Respondents submit that the evidence of the Appellant before the trial Court is that PW1 and PW2 bought the land from DW1 and his family, however, DW1 did not deny selling land to PW2 but a different land from the one being claimed by the Appellant. The Respondents argued that the identity of the land was made an issue by paragraphs 13 and 18 of the Respondents’ Statement of Defence and if the identity of the land has been precise and clear, then the issue of DW1 being estopped from denying the sale of the land twice will have become an issue, therefore, in a situation where the identity of the land is made an issue by the Defendant, the necessity would arise for the Claimant to lead evidence on the identity of the land which he claims because it has become an issue, the Respondents relied on BABATOLA V. ADEWUMI (2012) 1 WRN 132, ADUA V. ESSIEN (2010) 535 ALL FWLR 359 and EZERIOHA V. IHEZUO (2010) AFWLR (PT. 540) 1259. The Respondents argued that the Appellant failed to discharge this onus of proof of purchase of the said Plots A & B when the identity of same is in issue, relied on BABATOLA V. ADEWUMI (SUPRA) and ADUA V. ESSIEN (SUPRA).

The Respondents reproduced the holding of the trial Judge at page 169 of the Record to submit that the Survey Plans and documents referred to by the Appellant were discredited by the trial Judge and these are plans attached to Exhibit 1 which showed a different location, Exhibit 2- receipt of purchase by the Appellant did not make any reference to Exhibit 1 and also Exhibits 3 and 4 respectively which are Survey Plans for a different place as compared to Exhibit D6-1st Defendant’s Survey Plan. The Respondents contend that the Appellant having failed to prove the identity, extent, location of the land referred to by him, has also failed to discharge the onus on him, and his claim fails and his action was dismissed. The Respondents cited AYANWALE V. ODUSAMI (2012) 3 WRN 1, ADAWON V. ASOGBA (2008) ALL FWLR (PT. 420) 742, ODUBOTE V. OKAFOR (2012) 8 WRN 142 and OLOHUNDE V. ADEYOJU (2000) FWLR (PT. 24) 1355.

The Respondents further argued that the Appellant failed to discharge the onus of proof on him and urge the Court to dismiss this appeal.

APPELLANT’S REPLY
The Appellant submits that assuming without conceding that non signing of the Appellant’s writ of summons has any effect on the writ of summons, which is further denied, the law is trite that the moment a statement of claim is filed it supersedes the writ of summons as held in MR. EMMANUEL AGBANELO V. UNION BANK OF NIGERIA LTD (2000) LPELR 234, OSENI ABOYEJI V. AMUSA MOMOH & ORS (1994) LPELR-46, ADESUPO ADENIYI V. YEKINNI OGUNLANA (2015) LPELR-40908, MR. DAVID KARINGA STOWE & ANOR V. GODSWILL T. BENSTOWE & ANOR (2012) LPELR-7838.

The Appellant argued that it is trite that a writ of summons should be set aside only where the action constitutes an abuse of Court process and other defects should be treated as mere irregularities provided it is curable by a statement of claim, he relied on ASSOCIATED BUSINESS COMPANY LIMITED V. JONAH NWACHINEMELU & ANOR (2014) LPELR-24393.

In light of the foregoing, the Appellant contended that apart from the fact that there is nowhere in the rule of Court that provides for the signature of the Applicant to a writ of summons and the only provision in the rule that requires signature is the issuance of the writ of summons, a duty reserved for the Registrar of the Court without whose signature the writ could not be issued as provided in Order 5 Rule 1 of the High Court Civil Procedure Rules, 1988.

On the other hand, the Appellant submitted that Order 6 Rule 1 of the High Court Civil Procedures Rules, 2010 cannot be applied to the facts of this case because the case was initiated in 2003 while judgment was delivered in 2011, therefore, the writ of summons is proper before the Court below and it complied with the provisions of the rules of Court. The Appellant cited FESTUS IBIDAPO ADESANOYE & ORS V. PRINCE FRANSIC GBADEBO ADEWOLE & ANOR (2000) LPELR-142.

Furthermore, the Appellant submits that the issue of admissibility of photocopy of certified true copy of public documents has been settled by the apex Court in MAJOR BELLO M. MAGAJI V. THE NIGERIAN ARMY (2008) LPELR-1814 and IFEANYI ESIONE V. PHILIP ISIOFIA (2016) LPELR-41060, therefore, there is nothing much to argue. The Appellant urge the Court to allow this appeal and to grant all the claims thereof.

RESOLUTION
After a careful consideration of the Notice of Appeal, the Record of Appeal and the Briefs of Counsel on both sides which donated a number of issues for determination in this appeal, the Court is mindful of the fact that the Appellant initiated the appeal and therefore his grievances should be fully considered in order to resolve the appeal. Therefore, the issues distilled by the Appellant shall be adopted for determination in this appeal. The issues distilled by the Respondents which are properly founded on the Grounds of Appeal shall be subsumed in the Appellant’s issues for determination.

ISSUE ONE
Whether the Statement of Defence dated 19th of November, 2003 filed on the 26th day of November, 2003 at pages 18-19 of the records by Chief J.O. Sobayo and co and all subsequent amendments therein are competent.
The Appellant challenged the competence of the Statement of Defence filed on the 26th November, 2003 which is found at pages 18 -19 of the Record of Appeal. The Appellant contended that it was not duly signed by a legal practitioner as required by Section 2 and 24 of the Legal Practitioners Act. Looking at the said Statement of Defence, it was signed by CHIEF J.O. SOBAYO & CO. The said statement of defence was amended as reflected at pages 22-23 of the Record of Appeal and the same CHIEF J. O. SOBAYO & CO signed the Amended Statement of Defence. Section 2 of the Legal Practitioners Act provides that only persons whose names are on the roll kept by the Supreme Court can sign processes to be filed in Court. The manner in which a legal Practitioner shall sign processes to be filed in Court has been restated severally and in the case of EMEKA V CHUBA-IKPEAZU (2017) LPELR-41920(SC) as follows:
“This Court had laid down the ground rules on what should be to qualify for an appropriate signing of a legal practitioner on a legal especially as it relates to an originating process such as a Notice of Appeal or such like. In the case of SLB Consortium Ltd v NNPC (2011) 9 NWLR (Pt. 1252) 317 at 337 -338, the Supreme Court per Rhodes – Vivour JSC stated thus:-
“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 written. Thirdly, who the counsel represent. Fourthly, name and address of legal firm.
Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e, the Legal Practitioners Act).” In the lead judgment, Onnoghen JSC (as he then was) at pages 331 – 332 (paras H – A) held that:
“… A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice.”
At 332 (Para E) it was further held thus:
“It has been argued that non-compliance with the provision of Order 25 Rule 4(3) supra is mere irregularity… as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of Madukolu v Nkemdilim (supra)… the provision of the Rules of Court involved herein are by the wordings mandatory not discretionary.”
The Apex Court had inOKAFOR V NWEKE (2007) 10 NWLR (PT. 1043) 521 where the process in contention was signed above the name of J.H.C. Okolo, SAN & CO., stated as follows on what should be thus:-
“…. J. H.C. OKOLO SAN & CO. is not a legal practitioner and therefore cannot practice as such by say, filing processes in the Courts of this country. It is in recognition of this fact that accounts for the argument of learned Senior Advocate for the applicants that to determine the actual person who signed the processes evidence would have to be adduced which would necessarily establish the fact that the signature on top of the inscription J.H.C. OKOLO. SAN & Co. actually belongs to J.H.C. OKOLO, SAN who is a legal practitioner in the roll. I had earlier stated that the law does not say that what should be in the roll should be the signature of the legal practitioner but his name. That apart, it is very clear that by looking at the documents, the signature which learned senior advocate claims to be his really belongs to J.H.C. OKOLO & CO. or was appended on its behalf since it was signed on top of that name. Since both counsel agreed that J.H.C. OKOLO, SAN & CO. is not a legal practitioner recognized by the law, it follows that the said J.H.C. OKOLO, SAN & CO. cannot legally sign and/or file any process in the Courts…” Per Onnoghen JSC.”
Looking at the record of appeal, the trial Judge considering the Reply to the Amended Statement of defence at page 166 observed the deficiency when he held thusly:
“Claimant did not specifically reply by way of denial of paragraphs 13 and 18 of the Amended statement of defence dated 25/06/2007. It was not even signed by a Legal Practitioner known to law as it was signed by R.A. SARUMI & CO contrary to the Supreme Court decision in OKAFOR V NWEKE (2007) ALL FWLR (Pt. 368) 1016”.

The said defect also runs through the original Statement of Defence and amendments made thereafter. It is therefore surprising that the trial Judge picked the defect on the Reply to the statement of defence but overlooked that of the Statement of defence and the Amended statement of defence. The position of the law concerning how a Court process should be franked by a Legal Practitioner has not changed and the apex Court having declared such processes incompetent, this Court must also follow and pronounce the Amended Statement of defence as null and void and therefore incompetent. It ought to have been struck out. I hereby strike it out. Issue one is resolved in favour of the Appellant.

ISSUE TWO
Whether the Honorable Court was right when it held at pages 155 of the record that the failure of the Claimant to sign the writ of summons rendered the writ incompetent.
The lower Court at pages 153-155 of the record found that the suit was incompetent because the writ was not signed as required by law and the absence of signature divested the Court of jurisdiction, more so an unsigned document is worthless. The Respondent relied on the Rules of Court, Order 5 Rule 1 of the High Court of Oyo State (Civil Procedure) Rules under which the claim was initiated to say the Writ was incompetent. The lower Court found that the omission was fundamental and not a mere irregularity and it is a jurisdictional issue. The rules provide thusly:
“A writ of summons shall be issued by the Registrar, or other officer of the Court empowered to issue summonses, on application. The application shall ordinarily be made in writing by the plaintiff’s solicitor by completing Form 1 in the Appendix to these rules; but the Registrar or other officer as aforesaid, where the applicant for a writ of summons is illiterate, or has no Solicitor, may dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared, signed and issued.”
I agree that the issue is beyond the Rules of Court, the requirement for a Legal Practitioner to sign all processes to be filed in Court is a statutory requirement that Rules of Court cannot override, see ELABANJO & ANOR V. DAWODU (2006) LPELR-1106(SC) wherein the apex Court held:
“It is settled that the rules of Court are not as sacrosanct as statute or an Act. See Katto v. Central Bank of Nigeria (1991) 12 SCNJ 1 at 17; (1991)… Rules of Court cannot override statutory provisions of the law. See Alhaji Edun v. Odan Community, Ado Family etc (1980) 11 SC 103 at 124.” Per ONU, J.S.C
The writ of summons which is the initiating process was not signed by the learned Counsel whose name is inscribed on the writ, it is only the name of Chief Abimbola Ajibola without signature. It is trite that an initiating process must be signed by the solicitor or the party himself but it must be signed. And if issued by the solicitor, the law is that an unsigned writ of summons is rightly void and not even an amendment could cure the defect, see OKWUOSA V. GOMWALK & ORS (2017) LPELR – 41736 (SC) and GOVERNOR, BORNO STATE & ORS V. MOHAMMED (2019) LPELR-47071 (CA) wherein the Court held thus:
“… However where an originating summons is void ab initio like when it is not initiated by due process, the process is incurably defective and cannot be subject to amendment. It is settled law that a fundamentally defective document such as an Originating process cannot be amended to infuse life into it. In other words, a fundamentally defective originating process cannot be cured by an amendment of same nor can anything be added to it, the well-known adage being that you cannot put something on nothing and expect it to stand. You can only validly amend a valid originating process, not a fundamentally defective one which in the eye of the law does not exist. See: NWAIGWE & ORS V. OKERE ANOR (2008) 5 SCNJ 256 @ 274. In the instant case, the writ of summons filed by the Respondent in the eye of the law bears no signature having been signed by Haruna Mshelia & Co., in violation of Sections 2(1) and   24 Legal Practitioners Act. It is a creche principle of law that a process not signed by the maker is a worthless document and void ab initio. A document which is not signed does not have any efficacy in law. See: OMEGA BANK (NIG.) PLC. V. O.B.C.(SC). Accordingly, an unsigned process is only good for striking out and nothing more as any proceedings or order based on it is a nullity. In the instant case therefore, the unsigned writ of summons by virtue of the fact that the referred process was not signed by a legal practitioner is incapable of being amended as the said writ is incurably defective. The purported amendment made on 25th May 2017, to validate the writ was made in error. The said order of the lower Court made on 25th May, 2017 amending the writ of summons filed on 1st December, 2004 which writ was signed by Haruna Mshelia & Co., is hereby set aside for incompetence. It means there was no valid writ of summons to stem Suit No. M/165/2004.” Per ONYEMENAM, J.C.A
Furthermore, it is settled that an unsigned document is worthless and has no validity in law, see OMEGA BANK V. O.B.C. LTD (2005) 4 WRN 1 at 42 where the Court held as follows:
“A document which is not signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious.” Per TOBI, J.S.C
In following the resolution in respect of issue one, any process filed by a legal practitioner must be signed, see OGUNEDE & ORS V. ANAJUBA & ORS (2016) LPELR-42118(CA) wherein the Court held that:
“The validity of any originating process known to law (signature), must comply with the law. Its validity in any proceeding must be settled as it is a fundamental issue and requirement, to make the process alive or indeed make it a life issue. It is a SINE QUA NON. Failure therefore to properly sign an originating process, or any process of Court for that matter in the proper way, makes the suit liable to the set aside as being incompetent, thereby rendering the proceedings predicated on it, null and void. – KIDA V OGUNMOLA (2006) ALL FWLR PT 327-402.” Per PEMU, J.C.A.
The consequence of a void writ is that it is fundamentally invalid and defective, means the suit is incompetent and it divest the Court of jurisdiction because it was not initiated according to law, see EWUKOYA & ANOR V. BUARI & ORS (2016) LPELR-40492(CA) where I had this to say:
“In the case at hand, the Writ of summons being the foundation of the suit at the lower Court, having not been signed by a human legal practitioner whose name is in the Roll of Legal Practitioners is fundamentally defective and incompetent. See the case of INTEGRATED MERCHANTS LIMITED v. OSUN STATE GOVERNMENT & ANOR (2011) LPELR – 8803 (CA) where the Court held thus: “In ordinary civil suits, a writ of summons is the foundation or substratum of a law suit where it is required to be commenced by a writ of summons. It is on the writ of summons that all other processes, statement of claim, statement of defence, counter claim, reply, motions, and all interlocutory processes are laid. Where the writ of summons is defective, incurably defective, the foundation of the suit is gone and there is nothing upon which other processes in the suit can stand.” The lower Court therefore lacked the requisite jurisdiction to hear the suit which was not initiated with due process of the law. See MADUKOLU v. NKEMDILIM (1962) 2 SC NLR 341. The entire proceedings and the judgment therefrom is therefore a nullity.”
The law is settled that an initiating process must be signed and the simple reason is because an unsigned process as the writ in this case renders the process invalid and it erodes the jurisdiction of the Court and any step taken upon such a process is void and must be set aside.
The failure to commence the proceedings according to law affects the jurisdiction of the Court and goes to the root of the Court’s competence to adjudicate over the suit, see OLAGBENRO & ORS v. OLAYIWOLA & ORS (2014) LPELR – 22597 (CA) where the Court held:
“… a Court is only competent to adjudicate over a matter, when all the conditions precedent for its having jurisdiction have been satisfied. Thus, an action began by an incompetent process will divest the Court of jurisdiction to entertain the matter.”
As observed earlier, the writ in this case was not signed and therefore, it is a void abinitio, a nullity and incompetent; the proceedings therefore are null and void. Lack of signature is a fundamental defect and not a mere irregularity as contended by the Appellant.
The Appellant in reply argued that the competent statement of claim validates the writ of summons and therefore the suit is competent. His contention is based on the position of law that when it comes to the claim, the statement of claim overrides the claim stated in the writ of summons, see ENIGBOKAN V. AIICO (NIG) LTD (1994) LPELR-1144(SC) wherein the apex Court held thusly:
“It is well settled that a Statement of Claim supersedes the writ and must itself disclose a good cause of action – Udechukwu v. Okwuka (1956) 1 FSC 70, 71, (1956) SCNLR 189; Otanioku v. Alli (1977) 11-12 SC 9. To supersede the writ however, the Statement of Claim must state what is being claimed and not just claiming “as per the writ of summons” -Keshinro v. Bakare (1967) 1 All NLR280, 284. It follows that to supersede the writ, the Statement of Claim must contain a claim or claims therein set out – Nta v. Anigbo (1972) 5 SC 156. Any claim in the writ not claimed in the Statement of Claim is taken to have been abandoned. Lahan v. Lajoyetan (1972) 6 SC 190-192 where Sowemimo, J.S.C. (as he then was) stated the law thus: “It is settled law that a statement of claim supercedes the writ; hence if some special form of relief be claimed on the writ and not in the statement of claim, it will be taken that so much of the claim is abandoned. So also where in the statement of claim a consequential relief is added to the claim in the writ, such additional claim will be deemed as claimed before the Court.” Per OGUNDARE, J.S.C
​However, the Statement of claim does not initiate a claim before the Court. It is not an initiating process, the law is settled that in a claim for declaration of title to land, the writ of summons is the initiating process as also allowed by the rules of the lower Court. And furthermore, the claim in the statement of claim can only supersede the claim in a valid writ not an incompetent writ. The jurisdiction of the Court has to be activated before the statement of claim can get recognition. Statement of claim does not invoke the jurisdiction of the Court. The Appellant’s line of argument is misconceived and untenable.

Issue two is resolved against the Appellant. The findings made by the trial Judge are well founded. The suit is incompetent and is hereby struck out for want of jurisdiction of the lower Court.

ISSUE THREE
Whether the identity of the land in dispute is made sufficiently clear to or made sufficiently clear by the Claimant to the Defendant in his amended statement of claim.
The identity of the land in question was contested by the parties and the trial Judge in very clear terms found that the land described by the Appellant is not the land covered by the conveyance and not the land bought from PW2 and PW3. The 2nd Respondent too vehemently contended that the land claimed is not the one referred to by the Appellant.

The identity of the land in question was made an issue by the Respondents in their statement of defence, see paragraphs 13 and 18 of the statement of defence at page 50 of the record of appeal. The law is that identity can only be an issue when the Defendant makes it an issue in his defence, see ANYANWU & ORS V. UZOWUAKA & ORS (2009) LPELR-515(SC) wherein the apex Court held thusly:
”In NWOBODO EZEUDU & ORS v ISAAC OBIAGWU (1986) 2 NWLR (Part 21) 208 at 220 this Court, Per Oputa JSC, spoke of the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said: “The identity of land in dispute will be in issue, if, and only if, the Defendants in their Statement of Defence made it one – that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there, I will make bold to say that the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered By consent.” Per TABAI, J.S.C.

When the issue of identity is so raised the burden is on the Claimant to lead evidence on the identity of the land to which the claim revolves, see FATUADE V. ONWOAMANAM (1990) LPELR-1253(SC) wherein the Supreme Court held as follows:
“While it is the law that in an action for declaration of title to land, the burden is on the plaintiff to prove the identity of the land to which his claim relates, Kwadzo v. Adjei (1944) 10 W.A.C.A. 274, in this case, in my view, on the facts before the trial Court, the identity of the subject matter in dispute was not in question. The identity of the land would only be in issue if, and only if the defendant in his statement of defence made it one.

See Ezeudu v. Obiagwu (1986) 2 N.W.L.R. (Pt. 21) 208 at 210.” Per KAWU, J.S.C
The Claimant can only succeed in proving the identity of the land by adducing credible evidence such that ascertains the land in dispute without any doubt and it must be so clear that it leaves no one in doubt as to the specific area claimed such that a surveyor can produce a plan showing accurately the land in dispute. Another better way identified by Superior Courts is for the Claimant to file a Survey plan which reflects boundaries, location or extent of the land he is claiming. Such a plan must also show the dimensions of the land, location and salient features on the land.

In considering whether the identity of the land was established by the Appellant, the lower Court at page 169 of the Record of Appeal held thusly:
“Area in dispute could not be said to be well known to the parties in this case as the plan attached to Exhibit 1 showed a different place so also Exhibit 2 did not make any reference to exhibit 1 and also exhibits 3 and 4 are in different place compared with exhibit D6. A declaration of title cannot be declared without the Court being sure about the identity of the land to which the declaration will be tied to. See Ogedengbe vs Balogun (2007) 29 NSCQR 13 73 at 1386- 1387. I believe the production of dispute complaint plan would have been the solution of the identity which 1st and 2nd Defendants are claiming.”

With above findings, the lower Court nailed the issue of identity of the land in dispute, the trial Judge stated in clear terms that the Appellant failed to satisfy the requirements of the law on identity of the land in dispute.
​The trial Judge went further to discredit the Survey plans mentioned by the Appellant on page 13 of Appellant’s brief when he said the plans attached to Exhibit 1 showed a different place while Exhibit 2 (a receipt) did not make reference to Exhibit 1, Exhibit 3, Exhibit 4 which are Survey plans for a different land as compared to Exhibit D6 which is the 1st Defendant’s Survey Plan. Obviously, the lower Court was not certain of the location or identity of the land in dispute from the documents. Survey plans were divergent and at cross purposes. The identity of the land has to be determined before the lower Court could go into evaluating the evidence of witnesses on the land. The moment survey plans are not aligning with the evidence of the witness in terms of the exact identity of the land, then, there is a problem for the Claimant. Boundary witnesses could have shed light on the issue of identity of the land in relation to the Defendants who alleged that the identity of the land is unknown to them. The Appellant pleaded that boundary land owners are aware of his interest but did not call them to tell the Court. The Court cannot gloss over such a claim and it must be stated that pleadings are different from evidence in proof. Furthermore, oral evidence must align with the documents tendered to verify such testimony, documentary evidence is after all the hanger upon which to assess oral evidence, see OYEWUSI & ORS V. OLAGBAMI & ORS (2018) LPELR-44906(SC) wherein the Apex Court held thusly:
“While it is true that a fact may be proved by oral or documentary evidence, it is equally trite that documentary evidence is the hanger upon which oral evidence is measured.” Per KEKERE-EKUN, J.S.C
And furthermore, oral evidence cannot be allowed to contradict documentary evidence, see ARIJE V. ARIJE & ORS (2018) LPELR-44193(SC) wherein the apex Court held thusly:
“oral evidence cannot be used to vary or contradict the contents of documentary evidence, except where fraud is pleaded. See Bunge vs. Governor of Rivers State (2006) ALL FWLR (pt. 325) 1; Egharevba Vs. Osagie (2009) 12 SC (Pt. III) 123; A.G. Bendel State vs. UBA Ltd. (1986) 4 NWLR (Pt. 37) 5. See also Section 128 of the Evidence Act 2011.” Per KEKERE-EKUN, J.S.C
The most damaging part of Exhibit 2 is that it did not refer to Exhibit 1. And the plan attached to Exhibit 2 did not refer to the land in dispute, so the oral evidence cannot add or explain the content of a document. The non-alignment is too obvious and the impact damaging for the case of the Appellant. It is irreparable and therefore the findings made by the trial Judge are unassailable.
I resolve this issue against the Appellant.

ISSUE FOUR
Whether the Honourable Court was right to have expunged all the exhibits tendered by the Claimant before the Honourable Court including those admitted after a Court ruling by the Honourable Court page 169.
The trial Court rejected a photocopy of a CTC of a Deed of Conveyance registered at the Land Registry in respect of plot B on the authority of the case of ALADE V. OLUKADE 76 1-2 SC 1803 and MINISTER OF LANDS, WORKS AND HOUSING V. AZIKWE (1996) ALL NLR 49. The issue is whether there is need for recertification of a copy of a certified true copy of a public document as held by the lower Court and this was after stating in clear terms that opinion is now divided, he went on to opt for the version that says a CTC needs recertification.
Inspite of the Supreme Court’s authority, the Court still held on to rely on the earlier stance that a CTC must be recertified.
The argument as to the admissibility of a photocopy of a CTC of a public document has now been settled by the Apex Court in its wisdom in the case of MAGAJI V. NIGERIAN ARMY (supra) that the photocopy of a public document is admissible said thusly:
“It is now settled that photocopies of documents, must be certified. See Sections 111-112 of the Evidence Act. In the case of Daily Times Ltd. v. Williams (1986) 4 NWLR (Pt.36) 526 (referred to by the Court below as Iheonu v. FRA. Williams, it was held that a photocopy of a certified document, is admissible. So this authority, also puts to rest, the complaint in the appellant’s brief about the admissibility of the appellant’s Statement or Exhibit 1. As a matter of fact, in the case of International Bank Nig. Ltd. v. Dabiri & 2 Ors. (1998) 1 NWLR (Pt.583) 284 @ 297 C.A, it was held that photocopies of a Certified True Copy of a public document, need no further certification under Section 111(1) of the Evidence Act.” Per OGBUAGU, J.S.C (Pp. 69 paras. A)
I have also seen several decisions of the Court departing from the above decision of the apex Court. One of such is the case of OGBORU & ORS V UDUAGHAN & ORS (2010) LPELR-3938(CA) wherein the Court held as follows:
“However, against the background of the submissions of counsel for the parties, we have had to peruse the exhibits in contention here over and over again. Upon each perusal, what we saw were photocopies of certified true copies of the said exhibits: exhibits which, admittedly, are public documents. For the respondents, it was argued, that the said documents are admissible in law being certified true copies in accordance with Section 111 of the Evidence Act, citing Daggash v Bulama (supra). With profound respect, this is not the whole truth about these documents. Though certified, they are, actually, photocopies of certified public documents. This is why we must greet the submissions of counsel for the respondents with unequivocal disapprobation. In doing so, however, we must observe, in fairness to counsel, that the question of the admissibility of photocopies of certified true copies of public documents has, unduly, continued to agitate the minds of our Judges. This should, actually, not be so.”
​The reasoning for the departure is cogent and convincing, however as an intermediate Court, it is bound by precedent or the principle of stare decisis, can this Court decline to follow the apex Court’s decision and adopt the cogent reasoning by the Court? The only window open in such situations is to distinguish the authorities, I have searched for distinguishing features and couldn’t find any in this case. The issue running through is whether a photocopy of a certified true copy of a photocopy requires further certification and that was the issue in the two cases with different opinions. In obeisance to the principle of stare decisis, I will follow the apex Court’s decision because I am bound by it. I therefore disagree with the trial Judge that the photocopy of the certified true copy of the deed of conveyance was not admissible in law without further certification, I find it admissible and agree with the Appellant. The photocopy of the Deed of conveyance for Plot B registered as No: 13/13/1946 dated 11th June 1976 registered on 21st June 1976 is admitted into evidence as Exhibit “B”.

Furthermore, the Appellant challenged the decision of the trial Court to expunge other documents at judgment stage, on the ground that the Court is empowered to expunge documents illegally admitted at judgment stage, these are inadmissible documents as held in OLUKADE V ALADE (1976) 2 SC 183 and JAMES V MID MOTORS (1978) 11/12/SC 252. The lower Court expunged Exhibits 2, 3 and 4 from evidence before the Court. The trial Judge at page 170 of the record of appeal said thus:
“The law is that where inadmissible evidence is admitted the trial judge or Appellate Court should reject the evidence and after expunging such evidence, it shall consider if there is any remaining legal evidence to sustain the claims. I found the complaint of the defence counsel sustainable on the admissibility of Exhibits 2,3, and even 4 and the only admissible document remaining is Exhibit 1, sale of which is denied by the 2nd defendant. The root of sale to the plaintiff is faulty. The Court have a duty to expunge inadmissible Exhibit and Evidence even if the defendant did not object to the tendering in Evidence which defence counsel rightly did.”

Indubitably, the Court can expunge certain documents at judgment stage but the law strictly prescribed the type of documents, see BUHARI V. INEC & ORS (2008) LPELR-814(SC) wherein the Supreme Court held thusly:
“…a document which is inadmissible but erroneously admitted, can be expunged from the record at the stage of writing judgment.” Per TOBI, J.S.C
Also see the case of KUBOR & ANOR V. DICKSON & ORS (2012) LPELR-9817(SC) wherein the apex Court held thusly:
“On the sub issue as to whether the Court has the power to expunge from its record evidence or documents earlier admitted without objection by counsel, it is settled law that the Courts can do that and has been doing that over the years, see NIPC Ltd. v. Thompson Organization Ltd. (1966) 1 NMLR 99 at 104 where LEWIS, JSC stated the law as follows:- “It is of course the duty of counsel to object to admissible evidence and the duty of trial Court any way to refuse to admit inadmissible evidence, but if notwithstanding this evidence is still through oversight or otherwise admitted then it is the duty of the Court to when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.” Per ONNOGHEN, J.S.C
Documents that are not outrightly illegal and which could be admitted upon certain conditions and admitted without objection do not come within the illegal documents which the law says cannot be admitted at all and which if admitted in error can be expunged at judgment stage. Where a document is not legally inadmissible by law and the other party does not object to its admissibility, once admitted, he cannot turn round to urge the Court to expunge it, see JOHN & ANOR V. STATE (2011) LPELR-8152(SC) thusly:
“…in the latter class of cases, if the evidence was admitted in the lower Court without objection or was used by the opposite party (e.g. for the purpose of cross-examination) then it would be within the competence of the trial Court to act on it and the Court of Appeal will not entertain any complaint on the admissibility of such evidence.” Per MUKHTAR, J.S.C
The documents expunged at judgment stage are not inadmissible under the law and having been admitted, the Respondent and the Court cannot revisit the issue of admissibility with a view to reverse the order of Court admitting those documents. Even if there was an objection, once the objection is overruled, the Court cannot revisit the issue of admissibility. Indeed, the trial Judge overruled an objection concerning Exhibit 2 (see page 78 of the record) before admitting same in evidence. The lower Court lacks the jurisdiction to revisit that issue, that will amount to sitting on appeal, see DAKOLO & ORS V. REWANE-DAKOLO & ORS (2011) LPELR-915(SC) wherein the Apex Court held thusly:
“It is trite law that the Court is not allowed to alter the effect of its own decision on an issue that has been previously decided by it in the course of the same proceedings. The reversal of such decision is only on appeal. The principle is aimed at bringing an end to litigation as unsuccessful litigants are likely to re-open issues decided at a later period.” Per GALADIMA, J.S.C
Also see the case of EZIUZOR V. FEDERAL ATTORNEY GENERAL MINISTRY OF JUSTICE & ORS (2018) LPELR-44209(CA) wherein the Court held that:
“… The Onitsha High Court lacks the jurisdiction to set aside its decision… To do that would amount to its sitting on appeal.” Per PEMU, J.C.A
It is trite that admissibility is different from weight, therefore a document could be admitted in evidence and it fails to attract any weight during evaluation, see the case of MONTANYA & ORS V. ELINWA & ORS (1994) LPELR-1919(SC) wherein the apex Court held thusly:
“It must be noted at once that the legal admissibility of a piece of evidence is one thing, while the weight the Court would attach to such evidence after it has been admitted is quite another thing.” Per KUTIGI, J.S.C
I agree with the Appellant that the trial Judge erred in expunging the documents from evidence. The lower Court could have evaluated all documentary evidence and still decline to ascribe any evidential value for reasons advanced by the Respondents but not to expunge them, it had no power to do so. Exhibits 1, 2, 3 and 4 are hereby restored in evidence.
I resolve issue four in favour of the Appellant.

ISSUE FIVE
Whether the claimant sufficiently proved his title before the Honourable Court, see pages 167-169 for proof of the title of his vendor.
The burden in a civil claim is on the preponderance of evidence and in a claim for declaration for title to land, the Claimant has 5 different ways to prove his title. The methods were restated in the case of AIGBOBAHI & ORS V. AIFUWA & ORS (2006) LPELR-267(SC) wherein the Supreme Court held as follows:
“The law recognises five distinct ways in which title to or ownership of land in Nigeria could be proved as stated by the Supreme Court in the case of Idundun v. Okumagba (1976) 9-10 S, C 227. These are: (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, and (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. In an action for declaration of title to land, as in the instant case, a plaintiff need not prove all the five ways. Where the plaintiff’s case is based on traditional evidence of ownership as the legal basis of his claim, his duty is limited to proving such traditional title and no more. On the other hand, if a plaintiff’s claim relies on conveyance as the legal basis of ownership his duty is, simply to produce the documents of the title or the title deeds. The same thing applies where he claims through any of the other remaining three ways.” Per ONNOGHEN, J.S.C.

In this case, the Appellant relied on proof of title by documents, a party who pleads a particular method of proof of title must also support it by credible evidence, see WACHUKWU & ANOR V. OWUNWANNE & ANOR (2011) LPELR-3466(SC) and NNADI & ANOR V. ODIKA & ORS (2017) LPELR-43448(CA) wherein the Court held thusly:
“It is an established principle of law that in a claim for declaration of title, the onus is always on the plaintiff to establish his claim. The Courts have consistently held that what is required of a plaintiff in an action for declaration of title is to establish his claim by preponderance of evidence… The test is, whether the plaintiff has been able to prove to the satisfaction of the Court that he has a better title than the defendant by any of the five ways of proof of title, i.e, he must produce sufficient and satisfactory evidence in support of his claim… See Idundun v Okumagba (1976) 9-10.” Per OGUNWUMIJU, J.C.A.

Documents of title alone cannot establish title, the claimant must of necessity also go beyond the documents to prove the root of title, see AYANWALE V. ODUSAMI (2011) LPELR-8143(SC) wherein the apex Court held that:
“Reference was made to the judgment of this Court in: Lawson & Anor v Ajibulu & Ors (1997) 6 NWLR (Pt.507) p.14 where Ogundare J.S.C. said that; “production of documents of title alone is not sufficient to discharge the onus on a plaintiff to prove the title he claims; he must go further to trace the root of his title to one whose ownership of the land has been established”. One of the ways to succeed in a claim for title to land is for the plaintiff to plead a continuous chain of devolution. That in effect amounts to tracing his root of title. Thereafter he must lead evidence to sustain the pleadings. Productions of documents of title are necessary as they make oral evidence more credible.” Per RHODES-VIVOUR, J.S.C.
In this case, the 2nd Defendant is supposedly the root of title but he denied and also challenged the identity of the land being contested, stating that it is not the land sold to the Appellant’s vendor. There is therefore a dispute as to the root of title and the identity of the land. The identity of the land must of necessity be clearly established to support the documents relied upon as proof of title. This was lacking in this case.

​The documents relied upon are Exhibits 1 and B which are deeds of conveyance duly registered made on 11th June 1976. The Appellant relied on Section 155 of the Evidence Act, 2011 to submit that they are presumed as genuine. The genuineness of the documents was never in issue and Section 155 of the Evidence Act provides thus:
155. Where any document purporting or proved to be 20 years old or more is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
The said section is specific on genuineness of due execution of document which are over 20 years, that issue did not arise in this appeal. There was no question of the genuineness of those who signed the said Exhibits, and whether there was due execution or not. That question did not arise. The lower Court discarded the Exhibits on other grounds. The import of the Section was considered in the case of AYANWALE V. ODUSAMI (SUPRA) where the apex Court held thusly:
“Section 123 of the Evidence Act states that: “123. Where any document, purporting or proved to be twenty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested”. Where a person has been in possession of land for 20 years or a long time and he produces from his custody his title deeds, the custody is proper. By the provisions of Section 123 of the Evidence Act if documents are not less than 20 years at the time of trial in which they are to be used the Court will presume that they were properly signed by the person whose signature they bear. This reasoning is founded on necessity and convenience bearing in mind that it is difficult and at times impossible to prove the signature, handwriting or execution of documents over 20 years old as most of the people acquainted with the signature etc would be dead, or if alive their memories may have faded.” Per RHODES-VIVOUR, J.S.C.

​Ordinarily, where both parties derive their title from the same source, the law recognizes the first in time, see ADELAJA VS. FANOIKI & ANOR (1990) 3 SCNJ 131 and ONOBA V. ABUJA BUILDING PRODUCTS LTD & ORS (2014) LPELR-22704(CA) wherein the Court held thusly:
“Where both parties trace their root of title to an original owner, the first grant therefore prevails over the second. Where both parties claim and succeed in tracing their title in respect of the same piece of land to the same grantor, the principle has long been established that the later in time of the two or more persons to obtain a grant cannot maintain an action against the person who first obtained a grant. This is because the grantor having divested himself of his title in respect of the disputed piece of land has nothing left to convey to a subsequent purchaser. A grantor can only convey what he has – the principle is Nemo dat quod non habet – see Boulos vs. Odunsi (1958) WRNLR 169, Coker vs. Animashawun (1960) L.L.R. 71; Adamo Akeyu, Chief Obanikoro vs. Chief Suenu, Alimi Kuti & Chief Oluwa (1925) 6 NLR 87.” Per TUR, J.C.A.
​However, that cannot apply here because of the question of the identity of the land which was disputed unlike a situation where both parties are agreed on the land in dispute.

Considering the entire evidence and deficiency in the case of the Appellant, the lower Court was right to find that the Appellant failed to establish his claim for title to the land.
I resolve issue 5 against the Appellant

In the light of the resolution of all except one issue against the Appellant. The issue resolved in his favour is not one that can entitle him to judgment in this case, particularly when the writ of summons was not initiated according to law and the effect of which eroded the jurisdiction of the lower Court which transcends to this Court, the appeal must fail. It is hereby struck out for want of jurisdiction due to the defective writ of summons and on the merit because this is an intermediate Court and in obeisance to the admonition of the apex Court, in the case of KATTO V CBN (1999) LPELR-1677(SC) wherein the Apex Court held:
“It ought to be stressed that an intermediate appellate Court, such as the Court below, is duty bound to consider all the issues that are properly raised before it. It does not matter that its decision on a point will, in its view, be adequate to dispose of the appeal one way or the other. This is because in the event of the decision on that point being reversed on a further appeal. Its decision on the rest of the other points may then be considered by the higher Court for a final determination of the appeal. See Katto v. Central Bank of Nigeria (1991) 9 NWLR (Pt. 214) 126; (1991) 12 S.C.N.J. 1 at 20; Rev. Moses Abiegbe v. Ugbodume (1991) 11 S.C.N.J. 1; John Anyaduba v. Nigeria Renowned Trading Co. Ltd. (1992) 6 S.C.N.J. 204; (1992) 5 NWLR (Pt. 243) 535. The Court of Appeal in the present case considered only issue 1 before it but failed or neglected to consider the remaining six issues formulated by the cross-appellant. It is clear to me that the Court of Appeal was in error in this regard. See too Onifade v. Alhaji Olayiwola (1990) 11 S.C.N.J. 10: (1990) 7 NWLR (Pt. 161) 130.” Per IGUH, J.S.C (Pp. 25-26 paras. D).

The appeal therefore on the merit fails and is dismissed. The judgment of the lower Court delivered on the 4th day of April, 2014 by HON. JUSTICE WAIDI K. OLAIFA is hereby affirmed. However, on the competence and jurisdictional question the suit is struck out for being incompetent and for want of jurisdiction.

I make no order as to cost.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother, Yargata Byenchit Nimpar, JCA.

I agree that the lower Court lacked jurisdiction to entertain the suit before it, since the writ of summons, which originated it, was not signed. An unsigned Court process has no efficacy in law, because the responsibility for the process cannot be attached to any person.
It is for the foregoing reason and the fuller reasons given by my learned brother that I also strike out the suit for being incompetent.
I abide by the order as to costs.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning and conclusion striking out the suit commenced before the lower Court for incompetence and want of jurisdiction.

​The Writ of Summons with which the action was commenced at the lower Court was not signed by the Counsel whose name was endorsed thereon. The general principle of law is that an unsigned document and/or process of Court is a worthless document which does not have any efficacy in law. It is trite that such document cannot be relied upon by the Court in resolving a crucial issue in dispute. See NAMMAGI VS. AKOTE (2021) 3 NWLR (PT. 1762)170: AIKI VS. IDOWU (2006) 5 NWLR (PT. 984)47; GARUBA VS. KWARA INVESTMENT COMPANY LIMITED (2005) 5 NWLR (PT. 917)160. It follows therefore that the Writ of Summons with which the action the subject of this appeal was commenced does not have any efficacy in law. It is worthless and cannot be relied upon as a foundation for resolving the dispute between the parties.

​As if that is not enough; the Claimants amended their Statement of Claim. The Amended Statement of Claim at pages 39-42 of the Record was signed by the law firm of R.A. Sarumi & Co. In other words, it was signed by a law firm which is not cognisable as a legal practitioner under Sections 2(1) and 24 of the Legal Practitioners Act. It is incompetent and does not exist in the eyes of the law. The same process was however purportedly further amended by the lower Court. The Further Amended Statement of Claim at pages 81-83 of the Record was signed properly by a named legal practitioner, which is R.A. Sarumi. It is however the law that an originating process signed in the name of a law firm is fundamentally defective and incompetent. It is inchoate, legally non-existent and cannot be cured by way of an amendment. See MINISTRY OF WORKS AND TRANSPORT, ADAMAWA STATE VS. YAKUBU (2013) 6 NWLR (PT. 1351) 481 AND NEW NIGERIAN BANK PLC VS. DENCLAG LIMITED (2005) 4 NWLR (PT. 916)549. To my mind, the purported Further Amended Statement of Claim does not exist in the eye of the law.

Furthermore, the Statement of Defence at pages 18-19 of the printed Record was signed by the law firm of Chief J.O. Sobayo & Co. The Reply to Statement of Defence at pages 26 of the Record was also signed by a law firm- R.A. Sarumi and Co. It is now settled that all Court processes must be signed in the manner prescribed by the Legal Practitioners Act, that is to say, by a person qualified as a legal practitioner and enrolled in the Supreme Court of Nigeria. Any Court process signed in the business name of a firm is incurably defective ab initio and is liable to be struck out. See AJIBODE VS. GBADAMOSI (2021) 7 NWLR (PT. 1776) 475: SALAMI VS. MUSE (2019) 13 NWLR (PT. 1689) 301; ALAWIYE VS. OGUNSANYA (2013) 5 NWLR (PT. 1348) 570.

In view of the foregoing reasons, it is evident that the proceedings conducted by the lower Court and the judgment subject of this appeal were predicated upon incompetent processes. Consequently, this appeal is based on a non-existent and incompetent suit.

​It is for the above and the more detailed reasons contained in the lead judgment that I also find no merit in this appeal. I also strike out Suit No. I/670/2003 for being incompetent.

Appearances:

No Representation. For Appellant(s)

Olakunle Faokunla. For Respondent(s)