BABATUNDE AKINYEMI v. EGBEDA LOCAL GOVERNMENT (2019)

BABATUNDE AKINYEMI v. EGBEDA LOCAL GOVERNMENT

(2019)LCN/13172(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of May, 2019

CA/IB/285/2012

RATIO

APPEAL: WHETHER AN APPELLATE COURT CAN ON ITS OWN MOTION CONSIDER A SUBSTANTIAL POINT OF LAW ARISING ON THE RECORD EVEN THOUGH IT WAS NOT INCLUDED AS ONE OF THE GROUND OF APPEAL

See the case ofUKAEGBU VS. NWOLOLO (2009) 3 NWLR PT.1127 PG. 194 AT 222 PARAGRAPHS G ? H where the Supreme Court per Ogbuagbu JSC held as follows:
I have also dealt with this point, because, it is now firmly established that an appellate Court, will and can on its own motion, consider a substantial point of law arising on the record, even though it is/was not included as one of the grounds of appeal, nor referred to by the/an appellant at the hearing before a lower Court. See the cases of OKOKON INNUA VS. EKE E.N. BASSEY ASUQUO (1961) ALL NLR 576 AT 577 PER IDIGBE, JSC (of blessed memory);OGBONNA NWANGBO VS. NWOJI ALO(1972) 2 ECSLR 359 C 361; EX-PARTE MARKHAM (1969) 343 PAGE 150; AND KNIGHT V. HALIWELL (1974) L.R. 9 QB 416.PER FOLASADE AYODEJI OJO, J.C.A.

LEGAL PRACTITIONER: IT IS ONLY A LEGAL PRACTITIONER WITH NAME ON THE ROLL OF THE SUPREME COURT THAT CAN VALIDLY SIGN A COURT PROCESS

It follows therefore that by the operation of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation, 2004, it is only a Legal Practitioner whose name is on the roll of the Supreme Court of Nigeria that can validly sign a Court process. See OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1043) PG. 521; FIRST BANK OF NIGERIA PLC & ORS. VS. ALHAJI SALMANU MAIWADA & ORS. (2012) LPELR- 9713 (SC); ALHAJI BABATUNDE HAMZAT & ANOR. VS. ALHAJI SALIU IREYEMI SANNI & ORS. (2015) LPELR- 24302 (SC).
In SLB CONSORTIUM LTD. VS. NIGERIAN NATIONAL PETROLEUM CORPORATION (2011) 9 NWLR (PT. 1252) 317 AT 332 the Supreme Court per 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 could be any contraption.
Secondly, the name of Counsel clearly written
Thirdly, who Counsel represents
Fourthly, the name and address of Legal firm.PER FOLASADE AYODEJI OJO, J.C.A.

WRIT OF SUMMONS: THE PERSON WHO SIGNS A WRIT OF SUMMONS COULD AFFECT THE JURISDICTION OF A COURT

It is clear from all of the foregoing that the person who signed a Writ of Summons is very fundamental to the validity of the suit. A valid Writ of Summons is a condition precedent to the validity of an action before a Court.
In the case of MOHAMMED MARI KIDA VS. A.D. OGUNMOLA (2006) 13 NWLR (PT. 997) PG. 377, the Supreme Court per Musdapher, JSC held thus:
In my view, the validity of the originating processes in a proceeding before a Court is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge. See also the cases of Ministry of Works & Transport, Adamawa State vs. Yakubu (2013) 6 NWLR (Pt. 1351) 481 at 496 and N.N.B. Plc vs. Denclag Ltd (2005) 4 NWLR (Pt. 916).PER FOLASADE AYODEJI OJO, J.C.A.

JURISDICTION: THE EFFECT OF A COURT NOT HAVING JURISDICTION
It is trite that any proceedings conducted without jurisdiction no matter how well conducted is a nullity. See BRITTANIA-U (NIG.) LTD VS. SEPLAT PET. DEV. CO. LTD. (2016) 4 NWLR (PT. 1503) 541 AT 610, PARAGRAPHS A-D; B.B. APUGO & SONS LTD VS. ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD (OHMB) (2016) 13 NWLR (PT. 1529) 206 AT 240. In the case of ALHAJI FATAI AYODELE ALAWIYE VS. MRS. ELIZABETH ADETOKUNBO OGUNSANYA (2012) LPELR- 19661 (SC) the Supreme Court held as follows:
Again, the initiating processes being nullities have fundamentally robbed the trial Court of the jurisdiction to entertain and enter judgment in this suit so also the lower Courts decision on appeal therefrom and the resultant Notice of Cross-Appeal also filed in this matter; again, I so find. It follows from so holding that the instant suit not having been initiated by due process of law is a nullity.PER FOLASADE AYODEJI OJO, J.C.A.

JURISDICTION: THE ESSENTIAL ELEMENTS OF JURISDICTION

See MACFOY VS. U.A.C. LTD (1962) AC. 152; and in MADUKOLU VS. NKEMDILIM (SUPRA) per BAIRAMIAN, JSC, this Court has found to effect that a Court is competent when-
(1) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

BABATUNDE AKINYEMI
(Substituted by Order of Court on 03/04/2017 Appellant(s)

AND

EGBEDA LOCAL GOVERNMENT Respondent(s)

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Oyo State High Court holden at Ibadan in SUIT NO: I/518/2005 between ABIDOYE AKINYEMI AND EGBEDA LOCAL GOVERNMENT delivered on the 21st day of October 2010. The Plaintiff?s claim before the lower Court as contained in the amended statement of claim is as follows:
(i) N6,749,690.00 being mesne profit on the said land from 4th August 2001 to 11th November 2004.
(ii) Interest at the rate of 21% per annum from 11th November 2004 till date of payment.
(See Page 63 of the Record).

A Brief Summary of the Appellants case before the lower Court is as follows: By the Judgment delivered in SUIT NO: I/746/87 on the 3rd of August 2001 the Appellant was adjudged owner of the disputed land. That despite being adjudged the owner of the land, the Respondent refused to surrender possession to him until a warrant of possession was executed against her on the 11th of April 2004. It is further the Appellants case that between the 3rd of August 2001 when the judgment was delivered and 11th of November

2004 when he took possession, the Respondent collected rents from the people who occupied the land. It is the rents collected by the Respondent between the date of judgment in SUIT NO: I/746/87 and when he took possession that the Appellant sought to recover in the suit before the lower Court the subject of the instant appeal.

The Respondents case is that it was granted the land by the Oyo State Government and as such there was no tenancy relationship between her and the Appellant. The Respondent denied the Appellant?s claim for mesne profit.

Upon conclusion of hearing, the lower Court in a judgment delivered on the 21st of October 2010 dismissed the claim of the Appellant who was the Plaintiff. The Court held as follows:
Having considered the entire evidence of both parties and the relevant laws, it is my view and I so hold that the Plaintiffs claim lacks merit and it is hereby dismissed.
The judgment is at pages 91 -106 of the transcript record of proceedings.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal against same. See pages 107 ? 108 of the record.

The Appellant seeks for an order setting aside the judgment of the lower Court and granting his claims.

The Appellant?s Brief was filed by Michael F. Lana Esq. on the 16th of May 2017. The Respondent did not file any Brief of Argument. Pursuant to an application filed by the Appellant on the 20th of October 2017, he was granted leave to argue this appeal on the Appellant?s Brief alone.

Learned Counsel to the Appellant formulated a sole issue for determination to wit:
Whether the Plaintiff was not entitled to mesne profit.

At the hearing of this appeal, the Appellants Counsel adopted his Brief of Argument and urged us to allow the appeal.

Before going to a consideration of the sole issue raised by the Appellant, I find it very pertinent to consider a very fundamental issue which goes to the root of the suit before the lower Court and its jurisdiction to entertain it. It is a jurisdictional issue of law evident on the record transmitted to this Court. It has to do with the validity of the originating process filed by the Appellant. By the nature of the issue, it is one which I believe this Court can consider suo motu as

same has arisen from the record. See the case ofUKAEGBU VS. NWOLOLO (2009) 3 NWLR PT.1127 PG. 194 AT 222 PARAGRAPHS G ? H where the Supreme Court per Ogbuagbu JSC held as follows:
I have also dealt with this point, because, it is now firmly established that an appellate Court, will and can on its own motion, consider a substantial point of law arising on the record, even though it is/was not included as one of the grounds of appeal, nor referred to by the/an appellant at the hearing before a lower Court. See the cases of OKOKON INNUA VS. EKE E.N. BASSEY ASUQUO (1961) ALL NLR 576 AT 577 PER IDIGBE, JSC (of blessed memory);OGBONNA NWANGBO VS. NWOJI ALO(1972) 2 ECSLR 359 C 361; EX-PARTE MARKHAM (1969) 343 PAGE 150; AND KNIGHT V. HALIWELL (1974) L.R. 9 QB 416.
The Appellant commenced Suit No: I/518/2005 by taking out a Writ of Summons dated and filed on the 16th of June 2005. The said Writ of Summons is at pages 1-2 of the Record. It is clearly stated thereon that the Writ was issued by Olujinmi & Akeredolu. The endorsement on the Writ of Summons at page 2 of the record reads thus:

This Writ is issued by Olujinmi & Akeredolu of Olujinmi & Akeredolu whose address for service is No. 1 Azeez Aina St. Olusanya Hospital Junction, Ring Road, Ibadan?.
Section 2(1) of the Legal Practitioners Act, Laws of the Federation, 2004 provides as follows:
Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if and only if, his name is on the roll.
Section 24 of the Legal Practitioners Act (supra) provides thus:
In this Act, unless the con otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say-
Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor either generally or for the purposes of any particular office or proceedings.
It follows therefore that by the operation of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation, 2004, it is only a Legal Practitioner whose name is on the roll of the Supreme Court of Nigeria that can validly sign a Court process.

See OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1043) PG. 521; FIRST BANK OF NIGERIA PLC & ORS. VS. ALHAJI SALMANU MAIWADA & ORS. (2012) LPELR- 9713 (SC); ALHAJI BABATUNDE HAMZAT & ANOR. VS. ALHAJI SALIU IREYEMI SANNI & ORS. (2015) LPELR- 24302 (SC).
In SLB CONSORTIUM LTD. VS. NIGERIAN NATIONAL PETROLEUM CORPORATION (2011) 9 NWLR (PT. 1252) 317 AT 332 the Supreme Court per 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 could be any contraption.
Secondly, the name of Counsel clearly written
Thirdly, who Counsel represents
Fourthly, the 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.
The Writ of Summons used to commence proceedings at the lower Court was signed. It was however signed by Olujinmi & Akeredolu. Is Olujinmi & Akeredolu the name of a legal practitioner within the meaning of Section 24 of the Legal Practitioners Act (supra)? It is not. The same style adopted in signing the Writ of Summons at the lower Court was used in the Writ of Summons in the case of MRS OLAYINKA ADEWUNMI & ORS. VS. MR. AMOS OKETADE (2010) LPELR-163 (SC). In that case, the Supreme Court per Tobi JSC held as follows:
There is a big legal difference between the name of a firm of legal practitioner and the name of a legal practitioner simplicity. While the name of OLUJIMI AND AKEREDOLU is a firm with some corporate existence, the name of a Legal Practitioner is a name qua Solicitor and Advocate of the Supreme Court of Nigeria which has no corporate connotation. As both carry different legal entities in our jurisprudence of parties, one cannot be a substitute for

the other because they are not synonyms. It is clear that OLUJIMI AND AKEREDOLU is not a name of a legal practitioner in Nigeria. I say this because there is no such name in the roll of legal practitioners and that violates Section 2(1) and Section 24 of the Legal Practitioners Act. By Section 2(1) of the Act, the only person in the profession wearing his professional name to practice law in Nigeria is a legal practitioner in Section 24 of the Legal Practitioners Act and does not include OLUJIMI AND AKEREDOLU. This to me, is not a mere technicality that can be brushed aside. It is fundamental to the judicial process as it directly affects the legal process that brought the case on appeal.
It is clear from all of the foregoing that the person who signed a Writ of Summons is very fundamental to the validity of the suit. A valid Writ of Summons is a condition precedent to the validity of an action before a Court.
In the case of MOHAMMED MARI KIDA VS. A.D. OGUNMOLA (2006) 13 NWLR (PT. 997) PG. 377, the Supreme Court per Musdapher, JSC held thus:
In my view, the validity of the originating processes in a proceeding before a Court is

fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge. See also the cases of Ministry of Works & Transport, Adamawa State vs. Yakubu (2013) 6 NWLR (Pt. 1351) 481 at 496 and N.N.B. Plc vs. Denclag Ltd (2005) 4 NWLR (Pt. 916).
Premised on the foregoing, it means the suit instituted by the Appellant at the lower Court was commenced with an incompetent Writ of Summons and I so hold. This goes to the root of the case and the competence of the Court to assume jurisdiction over the matter. Where there is no valid Writ of Summons a Court would lack the requisite jurisdiction to adjudicate over such matter. It is trite that any proceedings conducted without

jurisdiction no matter how well conducted is a nullity. See BRITTANIA-U (NIG.) LTD VS. SEPLAT PET. DEV. CO. LTD. (2016) 4 NWLR (PT. 1503) 541 AT 610, PARAGRAPHS A-D; B.B. APUGO & SONS LTD VS. ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD (OHMB) (2016) 13 NWLR (PT. 1529) 206 AT 240. In the case of ALHAJI FATAI AYODELE ALAWIYE VS. MRS. ELIZABETH ADETOKUNBO OGUNSANYA (2012) LPELR- 19661 (SC) the Supreme Court held as follows:
Again, the initiating processes being nullities have fundamentally robbed the trial Court of the jurisdiction to entertain and enter judgment in this suit so also the lower Courts decision on appeal therefrom and the resultant Notice of Cross-Appeal also filed in this matter; again, I so find. It follows from so holding that the instant suit not having been initiated by due process of law is a nullity. See MACFOY VS. U.A.C. LTD (1962) AC. 152; and in MADUKOLU VS. NKEMDILIM (SUPRA) per BAIRAMIAN, JSC, this Court has found to effect that a Court is competent when-
(1) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and

(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) The case comes before the Court initiated by the due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.?
The above extract of Madukolu?s case (supra) has underscored how the jurisdictional competence of the trial Court and the lower Court as well as this Court has been fatally afflicted by the vice of not having initiated this action by due process of law resulting in nullities of the said initiating processes arising from their not having been signed and issued by a legally cognizable person acting as a Legal Practitioner under the Legal Practitioners Act. Being initiating processes their voidity, permit me to repeat, has destroyed the foundation of the causes in this matter rendering them void ab initio, again. See: MACFOY VS. U.A.C. (supra).?
From all of the above, my conclusion is that SUIT NO: I/518/2005 filed by the Appellant at the lower Court was not initiated by due process of law. The lower Court

therefore wrongly assumed jurisdiction to hear and determine same. This appeal is against a judgment delivered without jurisdiction. The law is well settled that you cannot put something on nothing and expect it to stand. This appeal has no leg to stand on and should be struck out. This appeal is therefore struck out. Furthermore, the judgment of the lower Court delivered on 21st October 2010 in SUIT NO: I/518/2005 is hereby set aside. SUIT NO: I/518/2005 is struck out having been initiated by an invalid originating process. There shall be no order as to costs.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my Lord, FOLASADE AYODEJI OJO, JCA, just delivered. I agree with and adopt the reasoning and conclusion of my lord in the Judgment.

It is trite that a Judgment given without Jurisdiction is a complete nullity however well conducted. See the following cases:
SULE VS NIGERIA COTTON BOARD (1985) 2 NWLR PART 5 PAGE 17.
PETROJESSICA ENTERPRISES LTD AND OTHERS VS LEVENTIS TECHNICAL CO LTD (1992) 5 NWLR PART 244 PAGE 675.

The issue of lack of jurisdiction by the lower Court has

paralysed this appeal and it can no longer stand.
This appeal is also struck out by me.

HARUNA SIMON TSAMMANI, J.C.A.: I read before now, the judgment delivered by my learned brother, Folasade Ayodeji Ojo, JCA.

The Writ of Summons that originated Suit No: 1/518/2005 was initiated by a Law Firm. The issue has since been settled by the Supreme Court in the case of Okafor v. Nweke (2007) 10 NWLR (pt.1043) 521 and other cases that followed it, that such process is incurably bad. It thus deprives the Court of jurisdiction to hear and determine the matter premised on such incompetent process.
I therefore agree with my learned brother that the Writ of Summons being incompetent should be struck out and the decision of the trial Court premised thereon is accordingly set aside. The Notice of Appeal and all processes predicated on it are hereby struck out. I abide by the order on costs.

Appearances:

Toyosi AyankoyaFor Appellant(s)

For Respondent(s)

Appearances

Toyosi AyankoyaFor Appellant

AND

For Respondent