AKEKUTA & ORS v. NURUDEEN & ANOR (2022)

AKEKUTA & ORS v. NURUDEEN & ANOR

(2022)LCN/16146(CA)

In the Court of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, March 24, 2022

CA/IB/513/2014

Before Our Lordships

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

1. MADAM MORIAMO AKEKUTA 2. MR. ADELEKE LASUPO AKEKUTA 3. MRS. Z. OLADIMEJI 4. MR. M. ADEDOKUN 5. MADAM YIDIATU ADUNNI LUKMAN 6. MR. AKEEM OLALEYE 7. UNKNOWN PERSON APPELANT(S)

And

1. ALHAJI KALIFA NURUDEEN 2. ABDULSALAM ADEBOLU (For Themselves And On Behalf Of Hadji Salami Adebolu Family) RESPONDENT(S)

RATIO

WHETHER OR NOT ONLY PROPER PARTIES CAN INVOKE THE JURISDICTION OF A COURT

The law is settled that it is only proper parties that can invoke the jurisdiction of a Court. See PLATEAU STATE OF NIGERIA VS. ATTORNEY GENERAL, FEDERATION (2006) 3 NWLR (PT. 967)346; AMUDA VS. AJOBO (1995)7 NWLR (PT.406)170; ONWUNALU VS. OSADEME (1971) 1 ALL NLR (PT.1)14; EKPERE VS. AFORIJE (1972) 1 ALL NLR (PT.1)220 AND OLORIODE VS. OYEBI (1984)1 SCNLR 390.

It is trite that jurisdiction is the life wire of adjudication and any proceeding conducted without jurisdiction no matter how well conducted is a nullity.
See KURMA VS. SAUWA (2019) 3 NWLR (PT. 1659)247; BELLO VS. DAMISA (2017) 2 NWLR (PT. 1550)455; SALISU VS. MOBOLAJI (2014) 4 NWLR (PT. 1396)1 AND SHELIM VS. GOBANG (2009) 12 NWLR (PT. 1156) 435.

The action in the lower Court was instituted by ALHAJI MURITALA ADEBOLU (for himself and on behalf of HADJI SALAMI ADEBOLU FAMILY). It was instituted in a representative capacity and fought as such. PER OJO, J.C.A.

THE POSITION OF LAW WHERE A MULTITUDE OF PERSONS ARE INTERESTED IN A RIGHT

WHETHER OR NOT ALL RULES OF COURT MUST BE OBEYED

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Oyo State High Court in Suit No. I/573/2001 BETWEEN: ALHAJI KALIFA NURUDEEN & Anor. (for himself and on behalf of Hadji Salami Adebolu Family) AND MADAM MORIAMO AKEKUTA & 6 Ors. delivered on the 7th day of November, 2013 wherein the learned trial Judge entered Judgment in favour of the Respondents who were the Claimants at the lower Court.

The Claim of the Respondents as contained in the Amended Statement of Claim is as follows:-
“29. WHEREOF, the Claimants’ claim against the defendants are as follows:
a) A declaration that the Claimant on behalf of himself and other members of late Hadji Salami Adebolu family are entitled to Statutory Right of Occupancy on a piece or parcel of land situate, lying and being at AIYEGUN ROAD, IBADAN which is shown on a plan No. LLB763 dated the 15th of February, 1965 attached to a Deed of Conveyance registered as No. 24 at page 24 in volume 850 of the Lands Registry in the office at Ibadan and dated the 23rd of June, 1965.
b) N1,000.00 damages for trespass committed by each of the 1st-7th defendants on the said parcels of land.
c) Perpetual injunction restraining all the defendants, agents, privies, servants and all other persons claiming through them or directly from them from further trespassing on the said piece or parcel of land situate, lying and being at AIYEGUN ROAD, IBADAN which is shown on a plan No. LL8763 dated the 15th of February, 1965 attached to a Deed of Conveyance registered as No. 24 at page 24 in volume 850 of the Lands Registry in the Office at Ibadan and dated the 23rd of June, 1965.

Upon being served with the originating processes, the Defendants who are the instant Appellants caused a Memorandum of Appearance to be filed on their behalf. The Memorandum of Appearance was issued in the name of the law firm of R. A. Ogunwole & Company. They further filed a Statement of Defence signed by R. A. Ogunwole & Co. The 2nd and 7th Defendants did not file any process. The 1st, 3rd, 4th, 5th and 6th Defendants amended their Statement of Defence. The Amended Statement of Defence was signed by Messrs R. A. Ogunwole SAN & Co.

At the close of evidence on both sides, learned counsel representing the respective parties filed and exchanged written Addresses which they adopted as their final oral submissions. The learned trial judge in a considered judgment found in favour of the Claimant/Respondent.

Dissatisfied, the 1st, 3rd- 6th Defendants/Appellants filed the instant Appeal. The Notice of Appeal containing four grounds of Appeal was filed on the 31st of January, 2014. See pages 164 to 167 of the Record. The Record of Appeal transmitted to the Registry of this Court on the 29th of October, 2014 was deemed as properly compiled and transmitted on the 11th of April, 2019.

Parties filed and exchanged their Briefs of Argument. The Appellants’ Brief of Argument settled by Dare Adebayo of Counsel was filed on the 15th of April, 2014. The Respondents’ Brief of Argument settled by Aare J.B. Lawson of Counsel filed on 1st of September, 2021 was deemed as properly filed on 9th of November, 2021.

In the Appellants’ Brief, the following four issues were nominated for the determination of this appeal.
1. Whether the learned trial Judge erred in law by granting the reliefs sought by the Claimants/Respondents without fair hearing on the part of the Defendants/Appellants and thereby occasioned a miscarriage of justice.
2. Whether the learned trial Judge erred in law by determining the Claimants/Respondents claim solely on the incompetent consequential Amended Statement of Claim after the Amended Statement of Defence was declared incompetent by the trial Court.
3. Whether the trial Court acted in error when he stated that the evidence adduced by the Defendants/Appellants is discountenanced when in fact he did not evaluate the evidence of the Defendants/Appellants at all, before arriving at the decision and entering judgment on an incompetent consequential Amended Statement of Claim.
4. Whether the trial Court lacks jurisdiction to entertain the Suit.

Learned Counsel to the Respondents for his part adopted the four issues formulated by the Appellants as his own and went on to argue them in the Respondents’ Brief of Argument.

I shall determine this Appeal based on the four issues formulated by the Appellants as they appear to cover their grievance in the grounds of Appeal. All the issues are interwoven; I shall therefore consider and resolve them together.

Learned Counsel to the Appellants argued that the refusal of the learned trial judge to grant the application to further amend their Statement of Defence was a denial of their right to fair hearing. He submitted that the denial of fair hearing occasioned a miscarriage of justice to the Appellants.

He relied on the cases of OTAPO VS. UNMONU (2011) ALL FWLR PT 576 P 460; UNONGO VS. AKU & ORS (1983) 11 SC 129; SAMBA PETROLEUM LTD & ANOR. VS. UNITED BANK FOR AFRICA & 2 ORS (2010) 43 NSCQR 137; KOTOYE VS. CBN (1989) 1 NWLR (PT. 98)419; OLUFEAGBA VS. ABDUL RAHEEM (2009) 40 NSCQR 684 AND MAMMAN VS. FRN (2013) ALL FWLR (PT. 697)711 in support of his submission.

He argued further that the trial Court erred when he relied on the Amended Statement of Claim after declaring the Amended Statement of Defence incompetent. His contention is that the Amended Statement of Claim had no leg to stand since it was filed consequent upon a process already declared incompetent by the Court. He craved in aid of his submission the cases of S.C.C. NIG LTD VS. ELEMADU (2004) ALL FWLR (PT. 230)1204; UAC VS. MCFOY (1962) A.C. 152 AND ENIGBOKAN VS. AMERICAN INTERNATIONAL INSURANCE CO. LTD (1994) 4 SCNJ 168.

It is further his argument that the lower Court failed in its duty to evaluate the evidence on record before arriving at its decision. He submitted that this omission makes the judgment of the Court a nullity. He relied on the cases of JIKANTORO VS. DANTORO (2004) ALL FWLR (PT. 216)410; USMAN VS. GARKE (2003) FWLR (PT. 177)828; MOGAJI VS. ODOFIN (1978) 3 SC 91; AROMIRE VS. AWOYEMI (1972) ALL NR 101 AND ATTORNEY-GENERAL RIVERS STATE VS. UDE (2007) ALL FWLR (PT. 347)6-13.

On the Issue whether the lower Court had jurisdiction or not to entertain the case, Counsel listed the conditions to be fulfilled for a Court to have jurisdiction. He called in aid of his submission the cases of ROAD TRANSPORT EMPLOYEES ASSOCIATION & OTHERS VS. NATIONAL UNION OF ROAD TRANSPORT WORKERS (1996) 8 NWLR (PT. 469)737; NEPA VS. UGBAJA (1998) 6 NWLR (PT. 548)106; OGUNLEYE VS. JEGEDE (1991) 6 NWLR (PT. 199)594; PEENOK INVESTMENTS LTD VS. HOTEL PRESIDENTIAL LTD (1983) 4 NCLR 122 and others.

He submitted that Hadji Salami Adebolu Family is not a person under the law and cannot be represented in a suit before the Court to contend that no proper parties were before the Court. He then urged us to hold that the lower Court lacked jurisdiction to entertain the action.
He urged us to resolve all issues in favour of the Appellants.

Responding, learned Counsel to the Respondents reiterated the settled position of the law on what fair hearing entails and relied on the cases of OVUNWO VS. WOKO (2011) 17 NWLR (PT. 1277) AND ADIGUN VS. AG OYO STATE (1987) 1 NWLR (PT. 53)678 in support of his submission.

He submitted and urged us to hold that the learned trial judge was right when he held that the Amended Statement of Defence sought to be further amended by the Appellants who were the Defendants was incompetent. He submitted this was in compliance with the settled position of the law in the cases of U.A.C VS. MCFOY (1962) AC 152; OKAFOR VS. NWEKE (2007) 5 SCM 180 AND MOBIL OIL NIG PLC VS. YUSUF 9 NWLR (PT. 1034)57.

He further submitted that the evidence given by the Appellant and his witnesses had no pleadings to stand on. He reiterated the position of the law that evidence not supported by pleadings go to no issue. He cited the case of SHELL BP LTD VS. JACOB ABEDI & ORS. (1974) 1 SC 16 in support of his argument.

On the submission of Appellants Counsel that the proper parties were not before the Court, he argued that the party being represented in a representative action need not be a legal person once the representative is. He enumerated the requirements to be met where a party seeks to institute an action in a representative capacity and urged us to hold that the Respondents met all of them. He craved in aid of his submission the cases of IFEKWE VS. MADU (2000) 14 NWLR (PT. 475); MELIFONWU VS. EGBUJI (1982) SC 147; NDUKA VS. EZENWAKU (2001) 6 NWLR (PT. 709)494; SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED VS. CHIEF (DR) PERE AJUNWA & ANOR. (2015) 14 NWLR (PT. 403) AND YUSUF VS. AKINDIPE (2000) FWLR (PT. 5)709 and finally urged us to dismiss this Appeal for being devoid of merit.

The complaint of the Appellants that the proper parties were not before the Court touches on the jurisdiction of the lower Court to entertain the matter.

The law is settled that where a multitude of persons are interested in a right, some individuals out of the multitude may be selected to represent them. In such situation, both the named Plaintiff and those he represents are parties to the action. See ADEOGUN VS. AKINYEMI (2020) 7 NWLR (PT. 1724)389; IGHEDO VS. POWER HOLDING COMPANY OF NIGERIA PLC (2018) 9 NWLR (PT. 1623)51; EJEZIE VS. ANUWU (2008) 12 NWLR (PT. 1101) 446 AND OTAPO VS. SUNMONU (1987) 2 NWLR (PT. 58)587. I wish to emphasise that representative action is not a matter of strict law requiring strict compliance but one to be treated as a flexible tool in the administration of justice. It is a rule of convenience which evolved to meet the difficulties presented where a multitude of persons are interested in the subject of litigation.

The complaint of the Appellants is that Hadji Salami Adebolu Family on behalf of whom the action at the lower Court was instituted is not a proper party. A similar issue was decided in the case of IFEKWE VS. MADU (2000) 13 NWLR (PT. 688) 459, where Opene, JCA at pages 474 – 475 Paragraphs F – G enthused as follows:
“In this action, the plaintiff, Prince Joe Madu sued for himself and on behalf of the Master Bakers and Caterers Association of Nigeria, Cross River State Branch. It is the contention of the appellant that the respondent’s Association which is Master Bakers and Caterers Association of Nigeria, Cross River State Branch was not registered as provided under Section 673(1) of the Companies and Allied Matters Act and that the respondent cannot sue on its behalf or purport to represent it in any proceedings and that in a representative proceeding that the other party not stated must be a person who is capable of suing and being sued.
I must confess that I find it very difficult to understand the basis of this submission and not to talk of agreeing with it. The argument that if a person or a group of persons are suing for themselves and on behalf of the members of a community, village, town, association or a body that the members of the community, village, town, association or the body is a party to the case and that it must be registered and that if it is not registered that a person cannot sue on its behalf and that it can also not authorise anyone to sue on its behalf because it is not a juristic person.
If this argument is followed to its most logical conclusion, it means that if any company causes an oil spillage or hazard which caused a damage to the town like Akamkpa or Akpabuyo that the people of Akamkpa or Akpabuyo cannot authorise one or two people to sue for themselves and on behalf of the members of the town, because Akamkpa or Akpabuyo is not registered under Section 673(1) of the Companies and Allied Matters Act.
In Eghologbin Oketie & Ors. v. Ambrose Olughor & Ors. (1995) 4 NWLR (Pt. 392) 655 at 667, Iguh, JSC, observed:
“…in a representative action, both the named plaintiffs and/or defendants as the case may be and those they represent are parties to the action, although the named representative plaintiffs and/or defendants are dominus litis until the suit is determined. And so, for the purpose of initiating any process in the representative action such process must be by and in the name of the named plaintiffs or defendants so long as their mandate from those they represent remains acceptable and uncountermanded.”
It is the person invoking the jurisdiction of the Court, that is, the named party who is dominus litis that must be a juristic person and not the party being represented. In Oketie & Ors. v. Olughor & Ors. above the 3 plaintiffs filed an action on behalf of themselves and on behalf of Gbolokposo people against the 1st and 2nd defendants for themselves and on behalf Ugbomro village and also against other defendants. It will be very novel to argue that the plaintiffs cannot represent Gbolokposo people and the 1st and 2nd defendants can also not represent Ugbomro village because the people they represent are not registered and therefore not juristic persons.
In Nwanara & Ors. v. Okeahialam & Ors.supra, referred to by the appellants’ counsel, he cannot say that the four plaintiffs who sued for themselves and on behalf of the members of Onicha Amairi Autonomous Community Council of Ndi Nze and the 1st and 2nd defendants who defended the action for themselves and on behalf of members of Onicha Town Union that the members of Onicha Amairi Autonomous Community Council of Ndi Nze and members of Onicha Town Union are registered under Section 673(1) of Companies and Allied Matters Act before they prosecuted and defended the action respectively. This no doubt defeats the counsel’s argument.
I entirely agree with the respondent’s counsel that it is the respondent who is the sole plaintiff and the dominus litis that is invoking the jurisdiction of the Court and not the party that is represented. Any group of people or members of a community or association having a common interest can authorise any of their members to sue on their behalf and such process must be by and in the name of the named plaintiff. This is exactly what has been done in this case and this action remains valid and competent so long as his mandate from the members of the Association that he represents remains acceptable and uncountermanded.”
See also the case of ADEJUGBE & ORS VS. ADULOJU & ORS (2015) LPELR- 24916 (CA).
I agree with my learned brother, Opene JCA that it is the named party who is dominus litis that must be a juristic person and not the party represented.

It is my considered view and contrary to the submission of learned counsel to the Appellants that proper parties were before the lower Court and the Court rightly assumed jurisdiction to entertain the matter. More so, the authority of the named Plaintiff to institute the action in a representative capacity was not contested by the family represented.

It is further the complaint of the Appellants that the lower Court erred when it refused to grant the application to further amend the Statement of Defence.

After parties concluded their evidence, the learned trial judge ordered counsel to file their written addresses. Parties filed and exchanged written addresses. It was after this that learned counsel to the 1st, 3rd – 6th Defendants who are the instant Appellants filed an application wherein they sought Leave of Court to further amend their Statement of Defence which application was opposed. The application was refused by the lower Court. In refusing the application, the learned trial judge in his judgment held at pages 144 -146 as follows:-
“I will deal with the application to amend the Statement of Defence straight away and thereafter I will consider the case on the merits.
The issue to consider now is whether the amended Statement of Defence filed by the 1st, 3rd, 4th, 5th and 6th Defendants on 16/11/2006 can be amended. The said amended Statement of defence was amended pursuant to the order of Court dated 10th November 2006.
As a starting point, by Order 24 Rule 1 of the Rules of this Court, no amendment is allowed after the close of the case. On this point alone, this application for amendment filed after final written address had been filed and exchanged is misconceived. The application ought to be struck out.

In the unlikely event that I am wrong, I will go ahead and consider the application on its merit. I have exchanged (sic) the processes filed by the defendants.
On the face of the amended Statement of defence which the defendants are seeking to amend, it is clear that the said process was signed by the firm of Solicitors R. A. Ogunwole & Co. The personal name of the practitioner who signed the process is not stated. It is now a notorious fact and common knowledge that the Supreme Court has emphatically and consistently held any Court process which is signed in the name of a firm of Solicitors without stating the name of the particular legal practitioner who filed and signed same is incompetent. This is so because the firm of Solicitors is not on the role of legal practitioners who are entitled to practice as Barristers and Solicitors. See Section 2(1) of the Legal Practitioners Act Cap L11 Laws of the Federation 2004. See also OKAFOR VS. NWEKE 10 NWLR (PT…(sic).
It follows from the above authorities that the Amended Statement of Defence dated 16/11/2006 is incompetent. It is now settled beyond peradventure that an incompetent process cannot be amended since one cannot put something on nothing. See U.A.C. VS. MCFOY (1962) A.C 152 AT 160.
An amendment dates back to the time the process sought to be amended was filed. See MOBIL OIL (NIG.) PLC. VS. YUSUFF (2012) 9 NWLR (PT. 1034) 57.
In the light of the above, the Amended Statement of Defence of the 1st, 3rd – 6th Defendants having been signed by the law firm of R. A. Ogunwole & Co. cannot be amended. As a result the application to amend is refused.”

Now, Order 24 Rule 1 of the Oyo State High Court (Civil Procedure) Rules, 2010 provides as follows:
“A party may amend his originating process and pleadings at any time before the close of pre-trial conference and not more than twice during the trial but before the close of the case.”
My understanding of the above is that a party is at liberty to amend his pleadings before the close of the Pre-trial Conference. After the close of the Pre-trial Conference he may amend the pleadings not more than twice and such amendment must be made before the close of the case.

The application to further amend was made by the Appellants after parties had closed their respective cases. It is obvious that the application was made outside the time allowed by the rules of Court.

To my mind, Order 24 Rule 1 (supra) was made to ensure that amendments are not made to overreach the adverse party.

It is trite that rules of Court are not made for fun. They are made to be obeyed and are made to regulate the proceedings to ensure fair hearing and quick dispensation of justice. Any party who fails to obey the rules of Court does so at his own peril and cannot be heard to complain. See MC INVESTMENTS LIMITED VS. CORE INVESTMENTS & CAPITAL MARKETS LIMITED (2012) 12 NWLR (PT. 1313)1; FIRST BANK OF NIGERIA PLC VS. T.S.A. INDUSTRIES LIMITED (2010) 15 NWLR (PT. 1216)247; OWNERS OF THE MV “ARABELLA” VS. NIGERIAN AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (PT. 1097) 182 AND NIPOL LIMITED VS. BIOKU INVESTMENT & PROPERTY COMPANY LIMITED (1992) 3 NWLR (PT. 232)727.

I agree with the learned trial judge that failure of the Appellants to bring their application to further amend the Statement of Defence within the time stipulated in the rules renders it incompetent.

Furthermore, the Amended Statement of Defence sought to be amended was signed by the law firm of R. A. Ogunwole SAN & Co. contrary to the provision of Section 2(1) and 24 of the Legal Practitioners Act Cap. L11, Laws of the Federation of Nigeria 2004. See the cases of OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1043)521; SLB CONSORTIUM LIMITED VS. NIGERIAN NATIONAL PETROELUM CORPORATION (2011) 9 NWLR (PT. 1252)317 AND FIRST BANK OF NIGERIA PLC VS. MAIWADA (2013) 5 NWLR (PT. 1348)444. It follows therefore that the Amended Statement of Defence which the Appellants sought to further amend was incompetent by virtue of Sections 2(1) and 24 of the Legal Practitioners Act.

The law is settled that an incompetent process cannot be amended. You cannot place something on nothing and expect it to stand, it will collapse. The foundation of the amendment sought was faulty. See ENYI BROS FOOD PROCESSING COMPANY NIGERIA LIMITED VS. NIGERIA DEPOSIT INSURANCE CORPORATION (2021) 16 NWLR (PT. 1800) 559; AKINDELE VS. ABE (2021) 17 NWLR (PT. 1804)1; AND UAC VS. MacFoy (1961) 3 ALL ER 1169.

The lower Court was therefore right when it held that the Amended Statement of Defence cannot be amended and consequently refused the application to do so.

Still on the competence of the amended originating processes, the following is evident from the record. The original Writ of Summons and Statement of Claim taken out in the name of the original Plaintiff, Alhaji Muritala Adebolu suing for himself and on behalf of Hadji Salami Adebolu Family was filed on the 21st of June, 2001.

Upon being served with the originating processes the 1st, 3rd to 6th Appellants filed their Memorandum of Appearance and Statement of Defence. The original 1st defendant is one Alhaji Raimi Akekuta who died during the pendency of the case at the lower Court. With the leave of Court, the deceased 1st defendant was substituted with the 1st Appellant consequent upon which the Statement of Defence was amended to reflect the substitution. In the course of the proceedings, leave was also granted for the instant 1st Respondent to replace the 1st Plaintiff who died on 27th of July, 2010. The Court ordered all processes in the suit to be amended to reflect the substitution. The Order contained at pages 45 – 46 of the record reads in part:
“(2) All processes should be amended to reflect the substitution.
Furthermore, the Claimant shall comply with the new rules within 14 days. The defendant shall do likewise within 14 days from date of service.”

The Respondents who were the Plaintiffs did not amend their process within the time granted by the Court. Being out of time they caused a Motion on Notice to be filed on their behalf wherein they sought for extension of time within which to file and serve their amended originating processes. (See pages 47 to 51 of the record). The application was granted. The Respondents thereafter filed their Amended Writ of Summons and Amended Statement of Claim with the Witness Statements on Oath of their Witnesses. I have taken pains to set out what transpired at the lower Court in view of the submission of Appellants Counsel that the Respondents amended their processes consequent to the amendment made to the incompetent Amended Statement of Defence. The submission of Counsel has no root in the record. It is not supported by the facts on record.

The law is settled that parties and the Court are bound by the record properly transmitted and the Court lacks jurisdiction to go outside the record in the determination of issues before it. See AGBAREH VS. MIMRA (2008) 2 NWLR (PT. 1071)378; OGOLO VS. FUBARA (2003) 11 NWLR (PT. 831)231 AND SOMMER VS. FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (PT. 219)548.

I therefore hold that the originating processes were consequentially amended upon the grant of an application to substitute the deceased 1st Plaintiff with the instant 1st Respondent. The argument of Appellants Counsel that the Writ of Summons and Statement of Claim were amended consequent to the amendment effected in the original Statement of Defence has no leg to stand on and I so hold.

I find the amended Statement of Claim competent and contrary to the submission of Appellants Counsel, the lower Court was right when it relied on it to enter judgment in favour of the Respondents.

It is further the complaint of the Appellants that the trial judge did not evaluate the evidence adduced on their behalf before entering judgment in favour of the Respondents.

The law is settled that a Court of law is duty bound to consider the totality of the evidence adduced by the parties at the trial and do a proper evaluation of same before arriving at a decision one way or the other. See ANEKWE VS. NWEKE (2014) 9 NWLR (PT. 1412)393; LAFIA LOCAL GOVERNMENT VS. GOVERNOR, NASARAWA STATE (2012) 17 NWLR (PT. 1328)94; LAGGA VS. SARHUNA (2008) 16 NWLR (PT. 1114)427 AND BASSIL VS. FAJEBE (2001) 11 NWLR (PT. 725)592.

At pages 137 to 142, the learned trial judge reviewed the evidence of all the witnesses called by both parties. At pages 146 to 150 of the record, he went on to consider the submissions of Counsel on both sides in their written addresses. In so doing, he stated at pages 148 to 149 as follows:-
“On Issue one, Counsel submitted that the Memorandum of Appearance dated 13/2/2002, the Statement of Defence dated 13/2/2003 and the Amended Statement of Defence dated and filed on 16/11/2006 are incompetent as they were not initiated by due process of law. Counsel pointed out that all these processes were signed by the firm of R. A. Ogunwole SAN & Co. That R. A. Ogunwole & Co. is not a legal practitioner registered in the roll of the Supreme Court to practice law …
Counsel stated that the Statement of Defence and all the processes resting on it are incompetent. Counsel stated that the effect of this is that there is no defence to the claims of the Claimant. That the evidence of the Claimant is unchallenged, therefore it is deemed admitted..”

It was after the review of evidence and a consideration of the written addresses of Counsel that the learned trial judge went on to formulate issues, made his findings before finally entering judgment in favour of the Respondents. It is therefore my considered view that contrary to the submission of Appellants Counsel, the learned trial judge evaluated the evidence given by witnesses called by the parties.

The record reveals that the Memorandum of Appearance filed on behalf of the Appellants, their Statement of Defence and the Amended Statement of Defence filed on their behalf were signed by R. A. Ogunwole SAN & Co. See pages 7, 8 – 11 and 29 to 32 of the record.
All the above processes were filed contrary to the provisions of Section 2(1) and Section 24 of the Legal Practitioners Act Cap. 207 Laws of the Federation of Nigeria. They are therefore incompetent. See ONYEKWULUJE VS. ANIMASHAUN (2019) 4 NWLR (PT. 1662)242; CHIEF GABRIEL IGBINEDION VS. WATSON & SONS LIMITED (2018) 8 NWLR (PT.1621) 374; FIRST BANK OF NIGERIA PLC VS. MAIWADA (2013) 5 NWLR (PT. 1348)444 AND OKETADE VS. ADEWUNMI (2010) 8 NWLR (PT.1195) 63.
In SLB CONSORTIUM LIMITED VS. NIGERIAN NATIONAL PETROLEUM CORPORATION (2011) 9 NWLR (PT. 1252)317 AT 331-332, PARAGRAPHS H-B, Onnoghen, JSC held as follows:
“The above decision clearly states that a process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and that 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. In the instant case, it would have been sufficient if Mr. Adewale Adesokan had simply written or stamped his name on top of Adewale Adesokan & Co, because Mr. Adewale Adesokan is a legal practitioner registered to practice law in the Roll at the Supreme Court; not Adewale Adesokan & Co.”
At Pages 337-338, Paragraphs G-B of the same Report, Rhodes-Vivour, JSC held as follows:
“What then is so important about the way counsel chooses to sign processes. 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). 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.
In this suit, the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the law, clearly spelt out in Reg. Trustees of Apostolic Church Lagos v. R. Akindele (supra) and Okafor v. Nweke(supra).
In this case there is signature of counsel, but no name of counsel. A signature without the name is incurably bad.”
I agree with the learned trial judge that the Memorandum of Appearance, original Statement of Defence and the Amended Statement of Defence filed on behalf of the Appellants as 1st, 3rd-6th Defendants were incompetent and he was right to have struck them out. He was also right when he found the evidence adduced by the Appellants Witnesses incompetent as they were based on incompetent pleadings.
A similar situation occurred in the case of SALAMI VS. MUSE (2019) 13 NWLR (PT. 1689) 301. The Supreme Court, per M.D. Muhammad, JSC at page 323 Paragraphs D – E held as follows:
“I am in complete agreement with learned respondent’s counsel that appellant’s proposed amended statement of defence is a worthless process same having been signed by the firm of Kayode Olatoke & Co instead of a legal practitioner as required by Sections 2(1) and 24 of the Legal Practitioners Act. The effect of this is that there is no valid pleading on record to sustain appellant’s case at the trial Court or his further agitation at the appellate level. Respondent’s reliance on Okpe v. Fan Milk (2016) 12 SC (Pt.111) 1 at 31 in this regard is apposite.”
The learned trial Judge was right when he held that the evidence of the Plaintiffs (instant Respondents) and his witnesses remains unchallenged and uncontroverted.

The Appellants have contended that they were denied fair hearing when the learned trial judge failed to consider the evidence adduced on their behalf and entered judgment in favour of the Respondents.

The principle of fair hearing is not only a common law right but it is also one constitutionally guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The Courts have over the years consistently maintained that the principle of fairness is sacrosanct and must be observed by a judicial umpire. The principle requires that a party in a suit must be given the opportunity to put forward his case freely and fully. See UKWUYOK VS. OGBULU (2019) 15 NWLR (PT. 1695) 308; GYANG VS. COMMISSIONER OF POLICE, LAGOS STATE (2014) 3 NWLR (PT. 1395)547 AND NDUKAUBA VS. KOLOMO (2005) 4 NWLR (PT. 915)411.

In the instant Appeal, the Appellants as defendants at the lower Court were given the opportunity to present their case. They however failed to file a valid Statement of Defence.

It is trite that where a case is fought by pleadings, parties are allowed to give evidence only on facts pleaded. Any evidence not rooted in the pleadings of the party go to no issue.

The Appellants who failed to file a competent Statement of Defence cannot now turn around to complain they were denied the right to be heard. Argument of Counsel to the Appellants in this regard does not hold water. They were not denied fair hearing and I so hold.

In the final analysis, I resolve all the issues formulated for determination in this appeal against the Appellants and in favour of the Respondents. This being so, the instant Appeal is completely devoid of merit and it is accordingly dismissed. The judgment of the lower Court in Suit No: I/573/2001 Between: Alhaji Kalifa Nurudeen & Anor. Vs. Madam Moriamo Akekuta & 6 Ors. delivered on 7th of November, 2013 is hereby affirmed.
The Appellants shall pay to the Respondents N100,000 costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: My Lord, FOLASADE AYODEJI OJO, JCA, obliged me with the draft of the leading judgment just delivered. I entirely agree that this appeal, being unmeritorious, ought to be dismissed. The Appellants raised a challenge as to whether proper parties were before the trial Court so as to confer jurisdiction on it or to put the question more directly, were proper Claimants before the trial Court given the fact that the body represented as the Claimant is not a juristic person.

From the record of the Appeal, the action was instituted by ALHAJI MURITALA ADEBOLU (for himself and on behalf of the HADJI SALAMI ADEBOLU FAMILY) and it is trite that the person who invokes the jurisdiction of the Court which is the named party is the dominus litis, that is, it is the named party that must be a juristic person and not the party being represented.

Once the party representing the unnamed plaintiffs is a juristic person, it suffices and it does not matter if the unnamed party who is being represented, is not a juristic person. See the decision in ETALUKU VS. NBC PLC (2005) ALL FWLR (PT. 261) 353, 381, IFEKWE VS. JOE MADU (2001) FWLR (PT. 38) 1253, 1268 OR (2000) LPELR- 6878(CA) and EGBEHOGBIN OKOTIE VS. OLUGBOR (1995) 4 NWLR (PT. 392) 665 (SC).

Therefore, the argument that the unnamed parties represented must be a juristic person is not a Statement of law and same is discountenanced. I also dismiss the appeal. I abide by the consequential orders made in the lead judgment.

ABBA BELLO MOHAMMED, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my learned brother FOLASADE AYODEJI OJO, JCA. I am in full agreement with the reasoning and conclusions made therein that this appeal is devoid of merit.

The printed record of this appeal shows that before the trial Court, the Memorandum of Appearance, initial Statement of Defence and Amended Statement of Defence filed by the Appellants (who were the 1st, 3rd, 4th, 5th and 6th Defendants), were all signed in the name of the law firm of R. A. Ogunwole & Company. In other words, all the processes which formed the foundation of the Appellants’ case before the trial Court were signed in the name of that law firm.

Authorities are legion that Court processes signed in the name of law firm instead of a legal practitioner enrolled at the Supreme Court to practice law is incompetent: SLB CONSORTIUM LTD. v NNPC (2011) 9 NWLR (Pt. 1252) 317, per Onnoghen, JSC (as he then was) at pages 331 – 332 & per Rhodes-Vivour. JSC at pages 337 -338; and ONYEKWULUJE & ANOR v ANIMASHAUN & ANOR (2019) LPELR-46528(SC), per Bage, JSC at pages 25 – 28, para. D. The Amended Statement of Defence of the Appellants signed by the law firm of R. A. Ogunwole & Company was therefore incompetent. The attempt by the Appellants to amend same at address stage, apart from contravening Order 24 Rule 1 of the Oyo State High Court (Civil Procedure) Rules, 2010, is legally futile since an incompetent process cannot be amended: U.A.C. v MCFOY (1962) A.C. 152 at 160.

It needs to be stressed that pleadings and evidence are the twin tools of adversarial civil litigations. The pleadings and evidence of a party must therefore not only be legally valid, they must support and complement one another. For evidence to be countenanced it must be in consonance with and support valid pleadings; and for valid pleadings to be useful, they must be supported by evidence. Pleadings which is not supported by evidence is deemed abandoned [CAMEROON AIRLINES v OTUTUIZU (2011) LPELR-827(SC)], while evidence which is not in support of valid pleadings goes to no issue and must be discountenanced [EZE v ENE & ANOR (2017) LPELR-41916(SC)].

The fair hearing imperative only demands that opportunities be granted for the party to be heard. It is left for the party not only to utilize the opportunity, but to do so effectively: EZEIGWE v NWAWULU & ORS (2010) LPELR-1201(SC), per Onnoghen JSC at page 55, para. A; and COMPACT MANIFOLD & ENERGY SERVICES LTD v PAZAN SERVICES NIG LTD (2019) LPELR-49221(SC), per Okoro, JSC at page 27, para. A. The Appellants herein who had filed incompetent processes and actively participated in the case before the trial Court cannot turn around to complain of lack of fair hearing.

In the lead judgment just delivered by my learned brother, OJO, JCA, he had, in a more elaborate manner, espoused the legal position and affirmed the decision of the trial Court as to the incompetence of the Appellants’ pleadings, as well as the lack of utility value of the evidence purportedly led by the Appellants in support of those incompetent pleadings. In total concurrence with the reasoning and conclusions made in the lead judgment, I also find this appeal devoid of merit.

Accordingly, I hereby dismiss same, affirm the judgment of the trial Court and abide by the consequential orders made in the lead judgment.

Appearances:

E. O. ADEBAYO, with him, E.O. OLURIN For Appellant(s)

G. S. ADEGOKE For Respondent(s)

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