IJAOLA v. OLANIYI (2022)

IJAOLA v. OLANIYI

(2022)LCN/16888(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, March 24, 2022

CA/IB/263/2012

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

1. MUKAILA IJAOLA (For Himself And On Behalf Of Semuwa Asemuyiwa Branch Of Oju Ile Aina Family Of Iperu) APPELANT(S)

And

CHIEF EFUWAPE OLANIYI RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE CONDITIONS THAT MUST BE MET BEFORE A PERSON IS QUALIFIED TO PRACTICE AS A LEGAL PRACTITIONER

Now, Section 2(1) of the Legal Practitioners Act, CAP. 207, Laws of the Federation of Nigeria provide 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 as follows:
“24. In this Act, unless the context 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 practise as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceedings…”
A community reading of Sections 2(1) and 24 (supra) reveals that for a person to be qualified to practice as a legal practitioner, he must have his name on the roll in the Supreme Court of Nigeria.
It is clear beyond any peradventure that the law firm of Adewale Soboyejo & Co is a not legal practitioner. There is no such name on the roll of legal practitioners kept at the Supreme Court. It is not a person entitled to practice as a barrister and solicitor. The law firm of Adewale Soboyejo & Co cannot sign processes of Court as it did at the lower Court and I so hold.
The statement of defence and counter-claim which was signed by a Non-legal Practitioner was filed in contravention of a statute that is the Legal Practitioners’ Act. This issue touches on the jurisdiction of the lower Court to consider the defence of the Defendant and to determine their counter-claim. PER OJO, J.C.A.

WHETHER OR NOT PARTIES CAN GO OUTSIDE THEIR PLEADINGS

The law is settled that where a case is fought on pleadings, parties are not allowed to go outside their respective pleadings as evidence led on facts not pleaded go to no issue. See C.N. OKPALA & SONS LIMITED VS. NIGERIAN BREWERIES PLC (2018) 9 NWLR (PT. 1623) 16, APENA VS. AILERU (2014) 14 NWLR (PT. 1426) 111, AFRICAN CONTINENTAL BANK LTD VS. GWAGWADA (1994) 5 NWLR (PT. 342) 25, and ONWUKA S. OMOGUI (1992) 3 NWLR (PT. 230) 393.
In AJIBODE VS. GBADAMOSI (2021) 7 NWLR (PT. 1776) 475, NGWUTA JSC at page 500 paras B-C held as follows:
“A process signed in violation of the provision of the Act cannot be said to have been duly filed before the Court. In the eye of the law, such process does not exist and so, cannot invoke the judgment of the Court. See Ogli Oko Memorial Farm Ltd & Anor v. Nigerian Agricultural Cooperative Bank Ltd.(2008) 4 SCNJ 436, (2008) 12 NWLR (Pt. 1098) 412.”
In the case of SALAMI VS. MUSE (2019) 13 NWLR (PT. 1689) 301. The Supreme Court considered the effect of a Statement of Defence signed in the name of a law firm. At page 321, paragraphs E-G of the report, His Lordship, Nweze, JSC held as follows:
“The implication of all I have said above is that the said defendant/appellant’s pleading, signed by “PP: Olatoke and Co.,” is unknown to our law, SLB Consortium Ltd V. NNPC (supra), Ogundele v. Agiri (supra), Oketade v. Adewunmi (supra), First Bank of Nig Plc v. Alhaji Salman Maiwada (supra), Alawiye v. Ogunsanya (supra), Braithwaite v. Skye Bank (supra). Hence, the only pleading filed was the statement of claim. PER OJO, J.C.A.

WHETHER OR NOT THE COURT MUST CONSIDER ALL ISSUES RAISED BEFORE IT

This appeal should ordinarily terminate here. It has however been decided in a plethora of cases that intermediate Courts such as this Court should pronounce on all issues placed before it and not restrict itself to one or more issues which in its opinion may dispose of that matter. This is to give the Apex Court the benefit of its views where the need arises. See SIFAX NIGERIA LTD VS. MIGRO NIGERIA LTD (2018) 9 NWLR (PT. 1623) 139, IKPEKPE VS. WARRI REFINERY & PETROCHEMICAL COMPANY LTD & ANOR (2018) LPELR – 44471 (SC), OWNERS OF THE MV “ARA’BELLA” VS. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (PT. 1097) (2005) and AKAI VS. AJABI (2005) 11 NWLR (PT. 935) 160. It is for this reason that I shall proceed to consider all issues that have been raised in this appeal. PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Ogun State High Court of Justice, Sagamu Judicial Division delivered on 2nd of June, 2010 in SUIT NO: HCS/131/2005 between (1) ALHAJI BUHARI OSINAIKE (2) CHIEF ERELU OLAYIWOLA AINA (3) MR. MURITALA ABIODUN AWOBAJO suing on behalf of themselves and representatives of Oju Ile Aina family of Iperu Remo, Ogun State and (1) MR. MUKAILA IJAOLA (2) MR GBOLAHAN IJAOLA (3) MADAM ADEBASE KEHINDE EPO suing for herself and on behalf of Asemuyiwa (Semuwa) branch of Oju Ile Aina family of Iperu Remo.

In that suit, the instant Respondents as Plaintiffs claimed against the Defendants as follows:
(a) A declaration that the Defendants whether by themselves or through their agents have no right whatsoever to sell or alienate any portion of Oju-Ile, Aina family land on Egan Imutara Farm Land along Lagos-Ibadan Express Road, Iperu Remo without the approval and consent of the Oju-Ile Aina family head and other Principal members.
(b) A declaration that any sale or transfer or alienation of any portion of the Oju-Ile Aina family land on Egan Imutara farm land along Lagos Ibadan Express Road, Iperu Remo by the Defendants or their Agents without the approval and consent of the head of Oju-Ile Aina family and other principal members of the family is null and void.
(c) An order of perpetual injunction restraining the Defendants whether by themselves or by their Agents or Privies from selling or transferring or dealing with any portion of the Oju-Ile Aina family land on Egan Imutara Farm Land along Lagos Ibadan Express Road, in any manner whatsoever without the consent and approval of the head of Oju-Ile Aina family and other principal members.

Upon being served with the originating process, the Appellants who were the Defendants filed a statement of defence and counter-claim. The statement of defence and counter-claim filed on 4th of May, 2006 was filed on their behalf by the law firm of Adewale Shoboyejo & Co. See pages 35-41 of the Record of Appeal. They counter-claimed against the Plaintiffs as follows:
1. DECLARATION that the judgment of the Customary Court in Suit No. IRCC/170/86 delivered on 26th 1986 remains valid and operates as res judicata against the Plaintiffs/Defendants to the counter-claim in this suit.
OR ALTERNATIVELY
Declaration that the Defendants/counter-claimants in this suit are entitled to inherit the portions of land inherited from Kehinde Epo and Jimoh Olowo at Egan Imutara Farmland, Iperu Remo and which are bounded in their sides as follows:-
i. Kehinde-Epo’s land-bounded by Adekoya Odukoya farmland, Baba Alagbede’s farmland, Sogade Solesi’s farmland, Babington Tege’s farmlands and Otugule Salami’s farmland.
ii. Jimoh Olowo’s Land-bounded by Lagos-Ibadan Express Way, Fibigbuwa family land, Igboti Oro of Iperu Remo family land.
2. The sum of Five Hundred Thousand Naira (N500,000.00) being damages for the acts of trespass committed by the Plaintiffs/Defendants to counter-claim on the said portions of land owned by the defendants/counter Claimants’ Asemuyiwa branch of Oju-Ile Aina Family of Iperu Remo.
3. Perpetual injunction restraining the Plaintiffs/defendants to the counter-claim their agents, privies, assigns and/or other person or persons claiming title through them both severally and collectively from entering or going unto the land in dispute to commit further acts of trespass and or doing anything whatsoever thereon.

In response, the Plaintiffs filed a reply to Statement of Defence and Defence to counter-claim. The Defendants also filed a reply to Defence to counter-claim. The matter proceeded to trial. The Plaintiffs called five witnesses while the Defendants called three witnesses.

At the close of evidence on both sides, counsel filed and adopted their respective written addresses. The learned trial Judge in a considered judgment found in favour of the Plaintiffs and went on to dismiss the counter-claim of the Defendants.

Aggrieved by the decision, the Defendants filed a Notice of Appeal on the 2nd of September, 2010 which was amended with leave of this Court. The Amended Notice of Appeal filed on 13th of November, 2020 was deemed properly filed on 12th of July, 2021.

The Record of Appeal transmitted on the 19th of October, 2012 was deemed as properly compiled and transmitted on the 17th of October, 2013. A supplementary Record of Appeal transmitted on 26th June, 2014 was deemed as properly transmitted on 25th of April, 2018 while the Additional Supplementary Record of Appeal transmitted on 16th June, 2020 was deemed properly transmitted on 12th of July, 2021.

During the pendency of this appeal, the original 2nd and 3rd Appellants died leaving only the 1st Appellant to prosecute the appeal. The original Respondents also died and were substituted with the instant Respondent.

In accordance with the rules of this Court, parties filed and exchanged briefs of Argument. The Appellant’s Brief of Argument settled by J.D. Olaniyan Esq., was filed on the 13th of November, 2020. The Respondent’s Brief of Argument settled by Abimbola Adesina Esq., filed on 7th January, 2021 was deemed properly filed on 11th of January, 2022. The Appellant filed a Notice of Preliminary Objection on 11th of June, 2018 to which the Appellant responded by filing a counter-affidavit. The objection was argued at paragraphs 1.02 to 1.10 of the Respondents brief. The Appellant’s arguments in response to the objection is at paragraphs 1.1 to 1.3 of the reply Brief.

At the hearing of the appeal on the 11th of January, 2022, learned counsel to the Appellant adopted and relied on the Appellant’s brief and reply brief as his submissions in urging us to allow the appeal. Learned counsel to the Respondent adopted and relied on the Respondent’s brief in urging us to dismiss the appeal in its entirety.

It is trite that where a Respondent raises and argues a preliminary objection in his brief of argument, he must seek the leave of Court to move such objection before the commencement of the hearing of the substantive appeal. Where he fails to do so, he would be deemed to have abandoned the objection. See LAGGA VS. SARHUNA (2008) 16 NWLR (PT. 1114)427, ONOCHIE VS. ODOGWU (2006) 6 NWLR (PT. 975)65, TIZA VS. BEGHA (2005) 15 NWLR (PT. 949)616, OFORKIRE VS. MADUIKE (2003) 5 NWLR (PT. 812)166, NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138)285.

The instant Respondent did not seek leave of Court to move his objection before the commencement of arguments of the substantive appeal. He is therefore deemed to have abandoned same and it is hereby dismissed.

As I noted earlier, the Appellants who were the Defendants at the lower Court filed a statement of defence in which they incorporated a counterclaim.

The statement of defence/counter-claim was signed in the name of the law firm of Adewale Soboyejo & Co. The law is settled that a Court process signed in the name of a law firm is invalid. The issue of the validity of the statement of defence and counter-claim filed on 4th of May, 2006 by the Appellants as Defendants was not raised by any of the parties in this appeal.

The general rule is that an appellate Court would not suo motu raise an issue and determine same without affording the parties the opportunity of being heard. See STIRLING CIVIL ENGINEERING NIGERIA LIMITED VS. YAHAYA (2005) 11 NWLR (PT. 935)181, MAINSTREET BANK VS. BINNA (2016) 12 NWLR (PT. 1526)316, OMONIYI VS. ALABI (2015) 6 NWLR (PT. 1456)572, EGBUCHU VS. CONTINENTAL MERCHANT BANK PLC (2016) 8 NWLR (PT. 1513)192.
The above general rule is however not applicable where the issue so raised touches on the jurisdiction of the Court or relates to a substantial point of law evident on the record. In such situations, the appellate Court can raise and determine such issues even though not included as a ground of appeal or raised by the parties at the hearing. In UKAEGBU VS. NWOLOLO (2009) 3 NWLR (PT. 1127)194 AT 222, PARAGRAPHS G-H, Ogbuagu, 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 from 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.”
Furthermore, in OMOKUWAJO VS. FEDERAL REPUBLIC OF NIGERIA (2013) 9 NWLR (PT. 1359) 300 AT 332, PARAGRAPHS D-F, Rhodes-Vivour, JSC held as follows:
“The need to give the parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if:
(a) the issue relates to the Court’s own jurisdiction,
(b) both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provision the Judge is expected to take judicial notice. See Section 73 of the Evidence Act.
(c) When on the face of the record, serious questions of the fairness of the proceedings is evident.”

To my mind, the issue of the validity of the statement of defence and counter-claim filed on behalf of the Appellants as Defendants at the lower Court is one that can be raised suo motu by this Court and determined without hearing the parties. I shall therefore proceed to deal with it.

Now, Section 2(1) of the Legal Practitioners Act, CAP. 207, Laws of the Federation of Nigeria provide 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 as follows:
“24. In this Act, unless the context 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 practise as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceedings…”
A community reading of Sections 2(1) and 24 (supra) reveals that for a person to be qualified to practice as a legal practitioner, he must have his name on the roll in the Supreme Court of Nigeria.
It is clear beyond any peradventure that the law firm of Adewale Soboyejo & Co is a not legal practitioner. There is no such name on the roll of legal practitioners kept at the Supreme Court. It is not a person entitled to practice as a barrister and solicitor. The law firm of Adewale Soboyejo & Co cannot sign processes of Court as it did at the lower Court and I so hold.
The statement of defence and counter-claim which was signed by a Non-legal Practitioner was filed in contravention of a statute that is the Legal Practitioners’ Act. This issue touches on the jurisdiction of the lower Court to consider the defence of the Defendant and to determine their counter-claim.

The case before the lower Court was fought by the parties on their respective pleadings. The defence of the Appellants was based on the statement of defence filed by a non-legal practitioner. The evidence in support of their counter-claim was also based on the process signed in the name of a law firm. The law is settled that where a case is fought on pleadings, parties are not allowed to go outside their respective pleadings as evidence led on facts not pleaded go to no issue. See C.N. OKPALA & SONS LIMITED VS. NIGERIAN BREWERIES PLC (2018) 9 NWLR (PT. 1623) 16, APENA VS. AILERU (2014) 14 NWLR (PT. 1426) 111, AFRICAN CONTINENTAL BANK LTD VS. GWAGWADA (1994) 5 NWLR (PT. 342) 25, and ONWUKA S. OMOGUI (1992) 3 NWLR (PT. 230) 393.
In AJIBODE VS. GBADAMOSI (2021) 7 NWLR (PT. 1776) 475, NGWUTA JSC at page 500 paras B-C held as follows:
“A process signed in violation of the provision of the Act cannot be said to have been duly filed before the Court. In the eye of the law, such process does not exist and so, cannot invoke the judgment of the Court. See Ogli Oko Memorial Farm Ltd & Anor v. Nigerian Agricultural Cooperative Bank Ltd.(2008) 4 SCNJ 436, (2008) 12 NWLR (Pt. 1098) 412.”
In the case of SALAMI VS. MUSE (2019) 13 NWLR (PT. 1689) 301. The Supreme Court considered the effect of a Statement of Defence signed in the name of a law firm. At page 321, paragraphs E-G of the report, His Lordship, Nweze, JSC held as follows:
“The implication of all I have said above is that the said defendant/appellant’s pleading, signed by “PP: Olatoke and Co.,” is unknown to our law, SLB Consortium Ltd V. NNPC (supra), Ogundele v. Agiri (supra), Oketade v. Adewunmi (supra), First Bank of Nig Plc v. Alhaji Salman Maiwada (supra), Alawiye v. Ogunsanya (supra), Braithwaite v. Skye Bank (supra). Hence, the only pleading filed was the statement of claim.
The absence of the statement of defence meant that no issues were joined, in the pleadings. See Egesimba v. Onuzuruike (2002) 15 NWLR (Pt. 791) 466. The appellant was therefore deemed to have admitted the claim or reliefs in the statement of claim.
It follows therefore that the Statement of Defence and counter-claim filed for the appellant by the law firm of Adewale Soboyejo & Co is incompetent and does not exist in the eyes of the law.
The implication of this is that the Appellant did not join issues with the Respondent/Plaintiff on the pleadings. The Appellant is deemed to have admitted the claims and reliefs in the Amended Statement of Claim. It also follows that the Appellant’s counter-claim is incompetent.
Furthermore, in SALAMI VS. MUSE (supra) at page 322 paras A-C, Nweze JSC held as follows:
“In all, therefore, I agree with the respondent’s counsel that the appellant failed to file a competent statement of defence. Thus, all the evidence, the appellant and his witnesses gave at the trial went to no issue. This must be so for, as is well-known, evidence not pleaded goes to no issue. See Emegokwue v. Okadigbo (1973) 4 SC 113, George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; (1963) 1 All NLR 71, 78, Orizu v. Anyaegbunam 1 LRN 216. Such evidence, if mistakenly admitted, as the trial Court did in the instant case, ought to, and should have, in fact, been ignored by the Judge in coming to his conclusion in the matter before him, National Investment and Properties Co. Ltd v. Thompson Organisation Ltd. (1969) NMLR 99, (1969) 1 SCNLR 279, Woluchem v. Gudi (1981) 5 SC 291 and Adenuga vs. L.T.C. (1950) 3 WACA 125.”
The evidence given in support of the Appellant’s statement of defence and counter-claim go to no issue because they do not enjoy the support of pleadings. It was given on facts not pleaded. See EWEJE VS. O.M. OIL INDUSTRIES LIMITED (2021) 4 NWLR (PT. 1765) 117, TRADE BANK PLC VS. PHARMATEK INDUSTRIAL PROJECTS LIMITED (2020) 8 NWLR (PT. 1725) 124, ISHOLA VS. UNION BANK OF NIGERIA LIMITED (2005) 6 NWLR (PT. 922) 422.

The Appellant had nothing to urge on the lower Court to enter judgment in his favour. There is no valid pleading on record to sustain the Appellants case and I so hold.

I have carefully examined the ten (10) Grounds of Appeal contained in the Amended Notice of Appeal. They all have their root in the incompetent Statement of Defence and counter-claim filed by the Appellants. There is therefore nothing to sustain the agitation of the Appellant before us. There is no evidence on record to sustain the instant appeal. The settled principle of law is that one cannot put something on nothing and expect it to stand; it will collapse like a pack of cards. See MAMMAN VS. HAJO (2016) 8 NWLR (PT. 1515) 411, NIGERIA ARMY VS. SAMUEL (2013) 14 NWLR (PT. 1375) 466 and MACFOY VS. UAC (1961) 3 WLR 405 at 409.
The Appellant’s counter-claim filed at the lower Court is an originating process. The Notice of Appeal filed against the judgment of the lower Court had its foundation on incompetent pleadings. It is therefore incompetent and should be struck out. The Notice of Appeal filed by the Appellant is accordingly struck out.

This appeal should ordinarily terminate here. It has however been decided in a plethora of cases that intermediate Courts such as this Court should pronounce on all issues placed before it and not restrict itself to one or more issues which in its opinion may dispose of that matter. This is to give the Apex Court the benefit of its views where the need arises. See SIFAX NIGERIA LTD VS. MIGRO NIGERIA LTD (2018) 9 NWLR (PT. 1623) 139, IKPEKPE VS. WARRI REFINERY & PETROCHEMICAL COMPANY LTD & ANOR (2018) LPELR – 44471 (SC), OWNERS OF THE MV “ARA’BELLA” VS. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (PT. 1097) (2005) and AKAI VS. AJABI (2005) 11 NWLR (PT. 935) 160. It is for this reason that I shall proceed to consider all issues that have been raised in this appeal.

Learned Counsel to the Appellant formulated the following four issues for determination:
1) Whether considering the facts and circumstances of this case, the Respondent’s Amended Writ of Summons is competent.
2) Whether the Appellant is not entitled to the land at Egan Imutara by virtue of the partition done by Pa. Oju-Ile Aina.
3) Whether the Appellants’ evidence are not sufficient enough to establish their claim.
4) Whether the principle of res judicata can apply to the instant case and whether the judgments in Exhibits “F”, “G” and “J” do not constitute sufficient acts of possession and ownership to entitle the Appellant to judgment.

Learned counsel to the Respondent nominated the following issues for determination.
1) Whether the issue raised in ground one of the Notice of Appeal is tenable.
2) Whether or not the Oju-Ile Aina family land at Egan Imutara had been shared/partitioned by Oju-Ile Aina himself in his lifetime or by the head and principal members of the family.
3) Whether or not effecting repairs on family property by a member passes ownership of the land to the member.

I have carefully examined the briefs formulated by the parties and given due consideration to the facts of the case presented by them and I agree with the Appellant that the issues formulated by him would suffice in the determination of this appeal. I shall however consider all four issues together in one fell swoop.

On the 1st issue, learned counsel to the Appellant submitted that the Amended Statement of claim as well as the Amended Reply to Statement of Defence and counter-claim filed by the Respondent as Plaintiff at the lower Court were incompetent in that they were filed in violation of Order 26 Rule 6 of the Ogun State High Court Civil Procedure Rules. He contended the Respondent failed to endorse the amended processes in accordance with the Rules. He cited the case of OKAFOR & ORS VS. A.G. & COMMISSIONER FOR JUSTICE & ORS. (1991) LPELR – 2414 in support of his argument.

He submitted the lower Court lacked jurisdiction to entertain the matter and urged us to so hold. He further drew our attention to the fact that this issue was raised at the trial but the lower Court failed to pronounce on it. He submitted the failure of the lower Court to pronounce on it was fatal. He relied on the cases of ADAH VS. NYSC (2004) LPELR 69, ADEGBUYI VS. APC & ORS (2014) LPELR – 24214 and KATTO VS. CBN (1999) LPELR – 1677 in support of his argument.

He therefore urged us to strike out the amended process filed by the Respondent for being incompetent. For his part, learned counsel to the Respondent referred us to page 1 of the Additional Supplementary Record of Appeal to submit that the Respondent complied with the Rules of Court. He submitted that all the processes in question were properly endorsed. He argued in the alternative that assuming there was noncompliance, such was a mere irregularity which did not occasion any miscarriage of justice. He craved in aid of his submission the case of A.G. BENDEL STATE VS. A.G. FEDERATION (1981) 10 SC. 1 in support of his argument and urged us to discountenance the Appellant’s arguments on the competence of the Respondent’s Amended processes.

On the issue whether the Appellant is entitled to the land at Egan Imutara by virtue of the partition done by Pa Oju Ile Aina learned counsel to the Appellant submitted there was sufficient evidence on record that Pa Oju Ile Aina shared the house built by him among his wives prior to his death and had partitioned his land at Egan Imutara to the six branches that made up his family. He referred us to the evidence of DW3 and the judgments in Exhibits “F” and “G”. He pointed out that there was no appeal against the judgments and so they remain valid and binding on the parties which include the Oju Ile Aina family.

He further submitted that the moment a family land is partitioned, it ceases to belong to the family. He called in aid of his submission the cases of ALAFIA & ORS VS. GBODE VENTURES (NIG.) LTD. & ORS (2016) LPELR – 26065 and NZEKWU & ORS VS. NZEKWU & ORS. (1989) LPELR – 2139 in support.

He urged us to hold that the Appellant was entitled to the disputed land by virtue of the partition done by Pa Oju Ile Aina. He argued further that the Appellant proved by credible evidence that he had been in possession and ownership of the disputed land for about twenty years prior to the institution of the action the subject of this appeal. He urged us to resolve this issue in favour of the Appellant.

Arguing per contra, the Respondent’s Counsel submitted the Appellant failed to establish by credible evidence that the disputed land had been partitioned. He submitted the Respondent proved that Pa Oju Ile Aina did not partition but only allotted the land to the six branches for farming purposes.

Relying on the case of ABRAHAM VS. OLORUNFUNMI (1991) 1 NWLR (PT. 165) 53, he stated the position of the law on the meaning of partition. He argued that any party who alleges that a family land had been partitioned must prove it conclusively by producing a valid deed of partition or by calling credible witnesses which may include the head of family and other representatives of the family or allotees. He relied on the cases of AJAYI VS. APABIEKUN & ORS. (1970) NSCC VOL. 6 PAGE 92 and NZEKWU VS. NZEKWU (1989) 3 SC (PT. 11) 79 and urged us to hold that the Appellant failed to prove that the disputed land was partitioned.

Learned Counsel to the Appellant further submitted that the evidence adduced by DW3 on their behalf is sufficient to establish the claim of the Appellants and that the learned trial Judge erred when he found to the contrary.

On issue no. 4, it is the contention of Appellant’s Counsel that the suit at the lower Court was caught by the doctrine of res judicata by virtue of the judgments in Exhibits “F”, “G” and “J”. He submitted and urged us to hold that DW3 was adjudged to be the owner of the disputed land in the judgments.

Appellant’s Counsel finally urged us to allow this appeal and grant all the reliefs claimed.

The crux of the claim of the Appellant under issue no. 1 is the failure of the Respondent to endorse the Amended Statement of Claim as provided for under Order 26 Rule 6 of the Ogun State High Court Civil Procedure Rules (1987). He also complained that the trial Judge failed to pronounce on this issue.

The general rule is that a Court has a duty to consider and pronounce on all issues properly raised before it. See SANWO-OLU VS. AWAMARIDI (2020) 11 NWLR (PT. 1736) 458; MARINE MANAGEMENT ASSOCIATES INC. VS. NATIONAL MARITIME AUTHORITY (2012) 18 NWLR (PT. 1333) 506, ADEBAYO VS. ATTORNEY GENERAL OF OGUN STATE (2008) 7 NWLR (PT. 1085) 201 and A.G. LEVENTIS PLC VS. AKPU (2007) 17 NWLR (PT. 1063) 416.

It is apparent from the record that the issue of non-compliance with Order 26 Rule 6 (supra) was raised for the first time at the lower Court in the final written address of the defendants (Appellant) counsel. See pages 78 to 80 of the Record.
I have also carefully examined the judgment of the lower Court contained at pages 48 to 75 of the Supplementary Record of Appeal, and I agree with the Appellant’s counsel that the Court did not pronounce on the issue of the competence of the Amended Statement of Claim raised in the Written Address of the Defence Counsel.
Order 26 Rule 6 of the Ogun State High Court (Civil Procedure) Rules 1987 provides as follows:
“Whenever any endorsement or pleading is amended, the same when amended shall be marked with the date of the order, if any under which if so amended and of the day on which such amendment is made in manner following, viz.”
“Amended … Day of … pursuant to order of … dated the … Day of …”
The above provide for the format to be adopted when filing an amended pleading. It has nothing to do with the contents of the pleadings. To my mind, failure to comply with the provision of Order 26 Rule 6 (supra) constitute a defect to form and not the substance. It is a procedural defect which is not fundamental and therefore not sufficient to vitiate the judgment of the Court. See FAMFA OIL LIMITED VS. ATTORNEY GENERAL FEDERATION (2003) 18 NWLR (PT. 852) 453, SAUDE VS. ABDULLAHI (1989) 4 NWLR (PT. 116) 383. A procedural irregularity or a mistake in form shall not vitiate a judgment.
The complaint of the Appellant is on the form and not the substance.

It is trite that a Court of law may ignore to pronounce on secondary issues which are irrelevant to the main or real issues in controversy.

It is also significant to note that the Appellant did not object to the documents at the time it was filed. They joined issues with the Respondent on them. The case went on to trial and the complaint came in the Written Address.
In SAUDE VS. ABDULLAHI, UWAIS JSC held as follows:
“It has since been established by a plethora of authorities that the appropriate time at which a party to a proceeding should raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. If the party sleeps on that right and allows the proceeding to continue on the irregularity to finality, then the party cannot be heard to complain, at the concluding stage of the proceedings or on appeal thereafter that there was a procedural irregularity which vitiated the proceedings.
See C.F.A.O. VS. THE ONITSHA INDUSTRIES LTD NWLR 102 at P. 103, JOHNSON VS. ADEREMI & ORS 13 WACA 297, ADEBAYO & ORS VS. CHIEF SHONOWO & ORS (1969) 1 ALL NLR 176 at P. 198, ASHIRU NOIBI VS. FIKOLATI & ANOR (1987) 1 NWLR (PT 52) 619 at P. 632 and EZOMO VS. OYAKHIRE (1985) 1 NWLR (PT 2) 195 at Pp. 202 – 203. The only exception to this general rule is that the party would be allowed to complain on appeal if it can show that it had suffered a miscarriage of justice by reason of the procedural irregularity.”
See also IGOIN VS. AJOKO (2021) 17 NWLR (PT. 1804) 90 at 109, ADESINA VS. OJO (2012) 10 NWLR (PT. 1309) 552 and OKONJI VS. NJOKANMA (1991) 7 NWLR (PT. 202) 131.

In this appeal, the Appellant who did not raise the objection timeously did not also demonstrate how the failure to endorse on the amended processes occasioned any miscarriage of justice. I cannot find any too.

In any event, I have seen the amended processes which are contained at pages 1 – 8 of the Additional Supplementary Record of Appeal. There is an endorsement in black ink at page 3 as follows:
“Amended on the 16th of February, 2006 on the order of Court.”

Even though the above is not the exact words used in Order 26 Rule 6 of the Ogun State High Court Civil Proceedings Rules, 1987, I hold that there was substantial compliance with the rule.

From all of the above, the inevitable conclusion is that issue no.1 is resolved against the Appellant and in favour of the Respondent.

The central point under issues no. 2 and 3 is the claim of the Appellant that the disputed land devolved on them by virtue of the partitioning done by Pa Oju-Ile Aina and that they adduced sufficient evidence at the trial to establish their claim. The Respondent argued to the contrary.

The Appellant called three witnesses who testified as DW1, DW2, DW3 respectively at the trial. DW2 is the instant Appellant while DW3 is his mother. The learned trial Judge after evaluating the evidence of the three witnesses came to the conclusion that the Appellant failed to prove that the family land was partitioned. He also found that both DW1 and DW2 admitted at the trial that they knew nothing about the partitioning and went on to hold that the evidence of DW3 alone cannot sustain the case of the Appellant that the family land was partitioned. The learned trial Judge held in his judgment as follows:
“The position of the law as at today is that in cases of customary law and traditional evidence, it is desirable that a person other than the person asserting it should also testify in support thereof. It is unsafe to accept the statement of the only person asserting the traditional history as to partitioning of the family land as conclusive. See LIPEDE VS. SONEKAN (1995) 1 SCNJ P. 184 at 200 – 201. The defendants/counter-claimants called no evidence to support the ipsi dixit of DW3 on this very vital issue. I find it difficult to accept the story put forward by the defendants/counterclaimants regarding the partitioning of the Oju-Ile Aina family land and same is hereby rejected.”

The Appellant is dissatisfied with the above finding and has argued that there was sufficient credible evidence before the trial Court that the family land was partitioned and that the Appellant’s mother was entitled to ownership of the disputed land.

Partitioning is one of the methods by which ownership of family property may devolve on constituent family members or family branches. Allotment of land on the other hand is simply granting permission to members of the family or any other beneficiary to make use of the family land as allocated. While partitioning may confer ownership, allotment does not. See YESUFU VS. ADAMA (2010) 5 NWLR (PT. 1188) 522, ANYABUNSI VS. UGWUNZE (1996) 6 NWLR (PT. 401) 255, OLOGUNLEKO VS. IKUEMELO (1993) 2 NWLR (Pt. 273) 16.

Whether a piece of family land has been partitioned or not is a matter of fact which must be proved by credible evidence. The fact of such partitioning must be copiously pleaded. This is because there is a strong presumption in favour of family property retaining its character. It follows therefore that a person who alleges that family land or family property has been partitioned has the burden to prove it. See DOSUNMU VS. ADODO (1961) L.L.R. 149 at 150, AJAYI & ORS. VS. PABIEKUN & ORS (1970) 1 ALL NLR 142 and MAYA VS. OSUNTOKUN (2001) 11 NWLR (Pt. 723) 63 at 77.

At the trial, three witnesses testified for the Appellant. DW1 is one Asemuyiwa, a senior brother to DW3. He gave no evidence on the alleged partitioning.

In answer to questions put to him under cross-examination, he said he knew nothing about the partitioning because he never lived at home. He said he only heard that Pa Ojuile Aina shared his land.

Gbolahan Ijaola who was the 2nd Defendant testified as DW2. His evidence is that Pa Ojuile Aina shared the land and that the land devolved on his mother (DW3). He however admitted under cross-examination that he did not know much about family history but his mother (DW3) knew. DW3 was the 3rd Defendant at the lower Court. Her evidence is that Pa Oju-Ile Aina married six wives one of whom was Asemuyiwa. She said she was a descendant of Asemuyiwa. She testified that Asemuyiwa begat Efuneye, Orenusi and Ogunsanya. Efuneye in turn gave birth to Taiwo, Kehinde and Idowu, and that she was one of the three children of Kehinde. It is her further evidence that Pa Oju-Ile Aina divided his land at Egan Imutara into six parts and that each part got two portions. That the portions partitioned to Asemuyiwa devolved to Efuneye and from Efuneye to Kehinde Epo and thereafter to her.

None of the witnesses who testified for the Appellant knew Pa Oju-Ile Aina and none of them was present when the land was partitioned. There is also no evidence of the extent of the land partitioned and those who were present when the partitioning was done. DW3 who gave evidence that the land at Egan Imutara was partitioned did not give evidence of the extent of the land partitioned and those present. Her evidence is that the land devolved on her through Asemuyiwa one of the wives of Pa Oju-Ile Aina who had three children named Efuneye, Orenubi and Ogunsanya. She gave the names of Orenubi’s children and that of Efuneye. She claims to belong to the Efuneye branch. Her evidence is that the portion of land partitioned to Asemuyiwa devolved to Efuneye. There is no evidence of what happened to Orenubi (who was also an offspring of Asemuyiwa) and his children on the sharing of the property. There is no evidence of how the Efuneye branch became the sole owners of all the land allegedly partitioned to Asemuyiwa by Pa Ojuile Aina. There is a gap in the account of the traditional history of how the Appellant became the owners of the disputed land. To my mind, the evidence of DW3 alone would not suffice in the circumstances of this case. There is no evidence of how Orenubi and his descendants became excluded in the line of inheritance. In LIPEDE VS. SONEKAN (1995) 7 NWLR (PT. 374) 668 at 688 Paragraphs E – F, Onu JSC held as follows:
“In cases of Customary Law and traditional evidence, it is good law that it is desirable that a person other than the person asserting it should also testify in support thereof. Since native law and custom must be strictly proved, it is, therefore unsafe to accept the statement of the only person asserting the existence of a custom as conclusive. See EKPENGA VS. OZOGULA ll (1962) 1 SC NLR 423, (1962) 1 ALL NLR (Pt. 1) 265 (Reprint).”
I agree with the learned trial Judge when he held that failure of the Appellant to call any other evidence to corroborate the evidence adduced by DW3 on the alleged partitioning of Oju-Ile family land was fatal.

Furthermore, the law is now settled that where a person relies on traditional history as his root of title, the onus is on him to plead the root of title and the names and history of his ancestors. He must disclose a continuous chain of devolution and lead evidence to show same without leaving any yawning gap. A Court has no jurisdiction to supply any missing link in a genealogical tree from progenitors to a claimant. See AWODI VS. AJAGBE (2015) 3 NWLR (PT. 1447) 578, ADDAH VS. UBANDAWAKI (2015) 7 NWLR (PT. 1458) 325, OKULEYE VS. ADESANYA (2014) 12 NWLR (PT. 1422) 521 and BAMGBOYE VS. OLUSOGA (1996) 4 NWLR (PT. 444) 520.

The learned trial Judge was right when he did not rely on the evidence of DW3. There is a gap in the traditional history account given by her.

It is further the argument of Appellant’s Counsel that DW3, the Appellant’s mother who had been in long possession of the disputed land was entitled to a declaration of title. From the totality of the evidence on record, it is my considered view that the Appellant did not prove exclusive possession of the land. What was established at best was that his mother farmed on the land alongside other family members. He failed to prove that the disputed land was allocated to her. The law is settled that family land may be allotted to or farmed by a member of the family but this does not translate to evidence of exclusive possession of the land by him/her. See BAMGBOSE VS. OSHOKO (1988) 2 NWLR (PT. 78) 509. Proof of title by acts of long possession does not ensure in favour of the Appellant and I so hold.

Both issues 2 and 3 are resolved against the Appellant.

Issue no. 4 borders on the applicability of the doctrine of res judicata to the instant appeal, it is the contention of the Appellants’ Counsel that the judgments in Exhibits F, G and J which still subsist have determined the ownership of the disputed land in their favour and that the suit at the lower Court is caught by the doctrine of res judicata. He urged us to so hold.

Exhibit F is the judgment of the Customary Court Grade II sitting at Iperu-Remo in SUIT NOS. IPCC/206/86 delivered on 29th December, 1986. There was an appeal against Exhibit F to the Ogun State High Court with SUIT NOS. HCS/6A/88. The judgment in SUIT NOS: HCS/6A/88 delivered on 20th May, 1989 is Exhibit J. Exhibit G is a judgment delivered by the Customary Court, Grade I sitting at Sagamu in SUIT NO. IRCC/170/86 delivered on 26TH March, 1986.

The Appellant at paragraph, 30, 40 and 41 of the Statement of Defence and counter-claim pleaded the judgment contained in Exhibits F and J and relied on the doctrine of res judicata. He counter-claimed at paragraph 46(1) as follows:
“46. Whereof the counter-claimants claim against the plaintiffs as follows:
1. DECLARATION that the judgment of the Customary Court in SUIT NOS. IPCC/170/86 delivered on 26th 1986 remain valid and operates as Res Judicata against the Plaintiffs/defendant to the counter-claim in this suit or ALTERNATIVELY, DECLARATION that the defendants/counter-claimants in this suit are entitled to inherit the portions of land inherited by Kehinde-Epo and Jimoh Olowo at Egan Imutara farmland, Iperu Remo and which are bounded on their sides as follows:
1) Kehinde – Epo’s land – bounded by Adekoye Odukoya farmland, Sogede Solasis farmland, Babington Tege’s farmlands and Otugule Salami’s farmland.
2) Jimoh OLOWO’S LAND – bounded by Lagos – Ibadan Express way, Fibigbuwa family land, Igbon Oro of Iperu Remo and family land.”

The doctrine of res judicata comes to play once a dispute or matter has been judicially pronounced upon or determined by a Court of competent jurisdiction. Neither the party thereto or their privies are allowed to re-litigate the matter. It is further the law that a judgment properly handed down is conclusive until reversed by an appellate Court. The doctrine is grounded on public policy which is that there must be an end to litigation. See SANI VS. THE PRESIDENT FEDERAL REPUBLIC OF NIGERIA (2020) 15 NWLR (PT. 1746) 151, JIMOH VS. AKANDE (2009) 5 NWLR (PT. 1135) 549 and OKUKUJE VS. AKWIDO (2001) 3 NWLR (PT. 700) 261.

The law is settled that the following conditions must exist for a successful plea of res judicata:
1) The parties are the same – that is the parties involved in both the previous and present proceedings are the same.
2) The claim or the issues in dispute in both the previous and present actions are the same
3) The decision relied upon to support the plea must be valid, subsisting and final.
4) The res, that is to say the subject matter of the litigation in the two cases is the same
5) The Court that gave the previous decision relied upon to sustain the plea must be a Court of competent jurisdiction.
Each of the above conditions must be proved to exist and it is not a matter to be drawn by inferences. Once any of the requirements is not proved, the defence of res judicata is inapplicable. See ABIOLA AND SONS V. Seven Up BOTTLING COMPANY LIMITED (2012) 15 NWLR (PT. 1322) 184, BWACHA VS. IKENYA (2011) 3 NWLR (PT. 1235) 610, AYUYA VS. YONRIN (2011) 10 NWLR (PT. 1254) 135 and OLORIEGBE VS. OMOTESHO (1993) 1 NWLR (PT. 270) 386.

I have closely examined Exhibit F, which is a judgment of the Customary Court Grade II, Iperu Remo, Ogun State. The 3rd Defendant in the lower Court was the Plaintiff in that case. She instituted the action against the duo of Sadiku Ogunyemi and Alhaji Tijani Salami. The case went on appeal to the Ogun State High Court. The judgment of the High Court sitting in its appellate jurisdiction is Exhibit J. The issue before both the Customary Court and the High Court in Exhibits F and J was whether DW3 was entitled to inherit any portion of Aina Oju-Ile’s property. In the judgment of the High Court Exhibit J, the Court identified the issue in contention as follows:
“The crux of learned counsel’s argument on this ground is that the plaintiff/respondent is from a female line and that accordingly she is not entitled to any portion of Aina Oju-Ile’s property without adducing evidence that she is entitled.”

The central issue in the case at the lower Court which birthed the instant appeal is whether the large parcel of land settled upon and owned by the late Pa Oju-Ile Aina was partitioned by him before his demise and whether the disputed land which forms part of Pa Oju-Ile Aina’s land devolved on the Asemuyiwa branch and thereafter the Appellant’s mother. It is not whether or not a female member of the deceased’s family is entitled to inherit. It follows therefore that the issue decided in Exhibits F and J is different from that in the lower Court.

I have also gone through Exhibit G which is the judgment of the Customary Court Grade One in SUIT NO. IRCC/170/86 relied upon by the Appellant. The subject matter of the litigation i.e. the res in Exhibit G and the instant case are not the same. The subject of dispute in Exhibit G is the ownership of a house (2 Rooms and a Shop) at Ojubode Quarters, Iperu-Remo while the declaratory and injunctive orders sought in the instant action are in respect of land situate at Egan Imutara farmland along Lagos-Ibadan Express Road, Iperu-Remo. The res in the two suits are evidently not the same and I so hold.

I therefore agree with the lower Court that since the condition precedent for the applicability of the doctrine of res judicata has not been met, the doctrine will not apply. This issue is also resolved against the Appellant and in favour of the Respondent.

The resolution of all the other issues raised in this appeal is to give the apex Court the benefit of the view of this Court if the need arises and no more.

I have earlier found the Notice of Appeal filed by the Appellants incompetent. My conclusion therefore is that this appeal is incompetent and it is hereby struck out. The Appellant shall pay to the Respondent N100,000.00.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Folasade Ayodeji Ojo, JCA.

The appellants’ counter-claim, in the trial Court, is in law regarded as an independent action or suit with a life of its own, even though it was initiated in the suit already commenced by the respondent, who was the defendant in the Court below.
The appellants’ counter-claim was signed by a law firm – “Adewale Soboyejo & Co”. It is now settled that a law firm is merely a business name and is not accorded legal personality. Therefore, a law firm, such as “Adewale Soboyejo & Co” does not qualify and is not recognized as a Legal Practitioner under the Legal Practitioners’ Act and is not capable of taking out or defending actions in our law Courts. See the cases of Emmanuel Okafor v. Augustine Nweke (2007) 3 SC (Pt. II) 55, SLB Consortium Limited v. Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 and Prof. Vincent Nnamdi Okwuosa v. Prof. N. E. Gomwalk(2017) 9 NWLR (Pt. 1570) 259.

The appellants’ counter-claim was ab initio incompetent and the appeal premised on it is consequently incompetent.

It is for the foregoing reasons and the very elaborate reasons given by my learned brother that I also strike out this appeal for being incompetent.
I abide by the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother FOLASADE AYODEJI OJO, JCA just delivered and I agree with the reasons advanced in dismissing the appeal. The Appellants challenged the competence of the Respondent’s Amended Writ of Summon and argued that the Respondent failed to endorse the amended processes in accordance with Order 26 Rule 6 of the Ogun State High Court Civil Procedure Rules, therefore the trial Court lacks jurisdiction to entertain the matter.

It is trite that rules of Court must be obeyed and where there is non-compliance with the rules, the Court must not be passive, in-active and helpless. Non-compliance with the rules of Court must be met with sanction, otherwise the purpose of the rules will be defeated and rendered meaningless. See OBA AROMOLARAN & ANOR VS. OLADELE & 2 ORS (1990) 7 NWLR (Pt.162) 359, AJAYI & ANOR vs. OMOROGBE (1993) 7 SCNJ (Pt.1)168, G. M. O NWORAH & SONS COMPANY LTD V. AKPUTA (2010) LPELR-1296 (SC) PG.23 and DINGYADI V. INEC (2010) LPELR-40142 (SC) Pg 33.
Also the case of OKOROCHA V. PDP & ORS (2014) LPELR-22058 (SC), Per OGUNBIYI JSC said as follows:
“The rules of Court are to be obeyed for purposes of protecting the sanctity and dignity of the law and Court. He who comes to equity must come with clean hands which presuppose diligence and care.”

However, from the record of appeal at pages 1-8 of the Additional/Supplementary Record, it is clear that the Respondent endorsed the Amended Writ of Summon even though, the Respondent did not use the same format or exact wording as contained Order 26 Rule 6 of the Ogun State High Court Civil Procedure Rules, 1987, therefore, there was substantial compliance.

Furthermore, the Respondent’s failure to comply with Order 26 Rule 6 of the Ogun State High Court Civil Procedure Rules, 1987 is not a fundamental defect but a mere procedural irregularity and it is trite that it is not every irregularity that can nullify proceedings particularly where such irregularity does not affect the merits of the case or occasion a miscarriage of justice. See the case of EBOH & ORS V. AKPOTU (1968) LPELR-25434(SC) and FAMFA OIL LTD V. AG FED & ANOR (2003) LPELR-1239(SC).

Thus, in the light above and the fuller and more detailed reasons contained in the lead judgment of my learned brother FOLASADE AYODEJI OJO, JCA which I adopt, I too see no merit in this appeal. I abide by all the consequential orders made in the lead judgment.