OJIKUTU & ORS v. KUTI & ORS
(2021)LCN/5072(SC)
In The Supreme Court
On Friday, June 11, 2021
SC.327/2010
Before Our Lordships:
Amina Adamu Augie Justice of the Supreme Court of Nigeria
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Samuel ChukwudumebiOseji Justice of the Supreme Court of Nigeria
Tijjani Abubakar Justice of the Supreme Court of Nigeria
Emmanuel AkomayeAgim Justice of the Supreme Court of Nigeria
Between
1. CHIEF ALHAJI MUSAFAU OJIKUTU 2. CHIEF RAIMI SOLUMADE 3. MR. AYINDE SULE SOLUMADE 4. MR. S. OLASENI SOLUMADE 5. ALHAJI TABURA SULE SOLUAMADE (For Themselves and on Behalf of Solumade Family Of Oreta) APPELANT(S)
And
1. CHIEF WAHABI ADIFA KUTI 2. ISHOLA ESUMADE 3. CHIEF OSHO ASHAFA 4. CHIEF AJASA OMOBOWALE 5. ALHAJI SAIDI OLAYIDE 6. ALHAJI MOSHOOD KUTERE 7. PRiNCE K. OLASENI OYEBO 8. SALISU SADIKU (For Themselves And On Behalf Of Ayangade Chieftaincy Family Of Igbogbo) RESPONDENT(S)
RATIO:
A GROUND OF APPEAL MUST FLOW FROM THE JUDGEMENT BEING APPEALED
It is now established by a long queue of authorities that a ground of appeal must arise from or derive from the judgment appealed against. Where therefore a ground of appeal is not based on the finding of the Court as contained in its judgment, such ground would be incompetent and liable to be struck out. The rationale is that an Appellant’s right of appeal is circumscribed within the ambit of the judgment appealed against and more particularly the ratio decidendi. See FMBN vs NDIC (1999). 2 NWLR (PT.591) 333; NKADO vs OBIANO (1997) 5 SCNJ 33; ROTIMI vs FAFORIJI (1999) 6 NWLR (PT606) 305; ILOABACHIE vs ILOABACHIE (2000) LPELR – 6939 (CA); EKUNOLA vs CBN (2013) 15 NWLR (PT.1377) 224; ASOGWA vs PDP (2013) 7 NWLR (PT.1353) 20171. PER SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.
SITUATIONS FROM WHICH A GROUND OF APPEAL MAY ARISE
In AKPAN vs BOB (2010) 17 NWLR (PT.1223) 421, this Court per Muhammed JSC held that:-
“a ground of appeal can arise in a number of situations such as the following:- (a) from the text of the decision appeal against (ipsisimaverba); (b) from the procedure under which the claim was initiated. (c) from the procedure under which the decision was rendered; (d) from other extrinsic factors such as issue of jurisdiction of a Court from which the Appeal emanates; (e) from commission or omissions by Court from which an appeal emanates in either refusing to do what it ought to do or doing that which it sought not to do or even overdoing the act complained of.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.
WHO IS A LEGAL PRACTITIONER QUALIFIED TO PRACTICE IN NIGERIA?
As earlier stated in this judgment, the combined effect of the provisions of Section 2 (1) and Section 24 of the Legal Practitioners Act is that, for a person to be qualified to practice as a Legal Practitioner, he must have his name in the roll otherwise he cannot engage in any form of legal practice in this country and this strictly includes the signing and filing of Court processes. PER SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.
THE DOCTRINE OF STARE DECISIS
The issues determined in those cases are not the same with the issue determined here. Therefore, those decisions cannot bind this Court in determining the issue in this case in line with the principle of stare decisis. A previous decision of this Court can bind it in a later case if the cases are similar in the sense that the issues of law or fact determined both cases are the same. Dissimilar cases must be decided differently. PER EMMANUEL AKOMAYE AGIM, J.S.C.
SAMUEL CHUKWUDUMEBI OSEJI, J.S.C. (Delivering the Leading Judgment): The Respondents as plaintiffs commenced an action against the Appellants at the High Court of Justice, Ikeja Division, Lagos State seeking the following reliefs:
“(i) Declaration that the plaintiffs are the owners under Yoruba native law and custom of the pieces and parcel of land situate, lying and being at Ewu Balogun, Ewu Abiye, Farmland, Igbogbo, Ikorodu Local Government Area of Lagos State and which is more particularly described in survey plan no. LAT/39/LA/2000.
ALTERNATIVELY
A declaration that the plaintiffs are the holders of statutory customary right of occupancy in respect of the land at Ewu Balogun, Ewu Abiye, Farmland, Igbogbo, Ikorodu Local Government Area of Lagos as delineated or shown on the Survey Plan No. LAT 139/LA/2000 made by Licensed Surveyor Ademola Ashipa dated 17th January, 2000.
ii. Sum of Ten Million (10,000,000) being special and general damages, for trespass committed by the defendants, to the Plaintiffs said land.
iii. The perpetual injunction restraining the Defendants, by their agents, servants, privies themselves, whatsoever and assigns from remaining on the land or repeating or continuing their act of trespass to the land in dispute.”
At the conclusion of the trial, the learned trial Judge in his judgment granted a declaration of title in respect of EWU ABIYE in favour of the Respondents but dismissed their claim in relation to EWU BALOGUN farmland and awarded same to the Appellants.
Dissatisfied with the judgment of the trial Court, the Respondents appealed against the trial Courts dismissal of its claim on Ewu Balogun and the declaration of title granted in favour of the Appellants. The Appellants in turn filed a cross-appeal on the declaration of title on Ewu Abiye farmland granted in favour of the Respondents. The lower Court in its judgment delivered on 7/4/2009, allowed the Respondent’s appeal and consequently dismissed the Appellants Cross-Appeal.
Aggrieved by the lower Court’s decision, the Appellants appealed to this Court via an amended notice of appeal filed on 4/2/2014 containing 5 grounds of appeal. The Appellant’s brief of argument was filed on 4/2/2014, while that of the Respondents was filed on 17/4/2017.
Parties thereafter adopted and relied on their briefs of argument at the hearing of the Appeal on 16/3/2021.
The Appellants in their brief of argument formulated four issues for determination as follows:
1. Whether the learned Justices of the Court of appeal were right in exercising jurisdiction over the appeal in view of the fact that the action was initiated without due regard to due process of law.
ALTERNATIVELY,
2. Whether the learned Justices of Court of Appeal were right in interfering with the findings of the trial Court having regard to the circumstances of this case.
3. Whether the learned Justices of Court of Appeal were right in awarding the area known as Ewu Balogun to the respondent.
4. Whether the learned justices of Court of Appeal were right in holding that the test in KOJO V. BONSIE (1956) 1 WLR 1223 is not necessary having regard to the conflict in traditional evidence adduced by the parties.
The Respondents in their own brief of argument formulated four issues for determination as follows:-
1. Whether the lower Court lacked competence to entertain the appeal before them.
2. Whether it was not proper for the learned Justices of the Court of appeal to interfere with the findings of fact made by the trial judge and replacing it with their own.
3. Whether the learned Justices of the lower Court were not right in awarding the area known as Ewu Balogun to the Respondents.
4. Whether there were conflicts in the traditional evidence of the parties sufficient and enough to warrant application of the test in KOJO II VS BONSIE (1956) 1 WLR 1223.
The Respondents in their brief of argument also raised a preliminary objection particularly at pages 3 and 4, wherein they challenged the competence of ground 1 of the amended grounds of appeal for raising new issues without seeking the leave of this Court.
It is trite that where a party raises a preliminary objection to the hearing of an appeal, it is a challenge to the competence of the Court to entertain same. On this premise, it will be appropriate to first consider the preliminary objection as raised by the Respondents in order to ascertain its merit or otherwise.
Dwelling on the said preliminary objection, learned counsel for the Respondents submitted that the ground 1 of the amended grounds of appeal challenged the decision of the lower Court in not striking out the matter on the ground that the suit was not initiated by due process of law, though the issue of want of jurisdiction was not placed before the lower Court and there was no decision made on it. He added that an appeal is a challenge or attack on the decision of a lower Court therefore in other to constitute a valid and proper ground of appeal there must be a decision capable of being appealed against, and such decision must have emanated from the consideration of issues placed before the Court. On this, he relied on the case of OGUNDIYAN V. STATE (1991) 3 NWLR (PT. 181) 519 S.C and MOMODU V. MOMOH (1991) 1 NWLR (PT. 169) 608 SC.
However, the Appellants did not respond to the preliminary objection. It shall therefore be considered solely on the arguments presented by the Respondents.
Simply put, the preliminary objection is premised on the stance that ground (1) of the amended Notice of Appeal is incompetent and ought to be struck out because it was not raised at the trial Court and it is not derived from the decision of the lower Court even though it questions the jurisdiction of the lower Courts to entertain the Respondents’ claim ab initio.
It is now established by a long queue of authorities that a ground of appeal must arise from or derive from the judgment appealed against. Where therefore a ground of appeal is not based on the finding of the Court as contained in its judgment, such ground would be incompetent and liable to be struck out. The rationale is that an Appellant’s right of appeal is circumscribed within the ambit of the judgment appealed against and more particularly the ratio decidendi. See FMBN vs NDIC (1999). 2 NWLR (PT.591) 333; NKADO vs OBIANO (1997) 5 SCNJ 33; ROTIMI vs FAFORIJI (1999) 6 NWLR (PT606) 305; ILOABACHIE vs ILOABACHIE (2000) LPELR – 6939 (CA); EKUNOLA vs CBN (2013) 15 NWLR (PT.1377) 224; ASOGWA vs PDP (2013) 7 NWLR (PT.1353) 20171.
In AKPAN vs BOB (2010) 17 NWLR (PT.1223) 421, this Court per Muhammed JSC held that:-
“a ground of appeal can arise in a number of situations such as the following:- (a) from the text of the decision appeal against (ipsisimaverba); (b) from the procedure under which the claim was initiated. (c) from the procedure under which the decision was rendered; (d) from other extrinsic factors such as issue of jurisdiction of a Court from which the Appeal emanates; (e) from commission or omissions by Court from which an appeal emanates in either refusing to do what it ought to do or doing that which it ought not to do or even overdoing the act complained of.”
See also METAL CONSTRUCTION (WEST AFRICA) LTD vs D.A MIGLIORE & ORS (1990) ALL NLR 142.
In the instant case, the ground of appeal falls under category (d) in the above cited case of AKPAN vs BOB, given that it relates to a challenge on the jurisdiction of the trial Court and the lower Court to entertain the matter. Jurisdiction is said to be the pillar upon which the entire case rests. Filing an action in Court presupposes that the Court has the jurisdiction to hear and determine same. Hence the issue of jurisdiction being a fundamental issue that determines the competence of a Court to entertain any matter presented before it for adjudication, it can be raised at any stage of the proceeding in the Court of first instance or in the appellate Courts. The issue of jurisdiction can be raised by any of the parties or by the Court suo motu where there are sufficient facts on record to establish want of jurisdiction in the Court. See OLOBA vs AKEREJA(1988) 3 NWLR (PT. 84) 508, KALIO vs DANIEL KALIO (1975) 2 SC 15; BARCLAYS BANK OF NIGERIA vs CENTRAL BANK OF NIGERIA (1976) 6 SC 175; ODOFIN vs AGU (1992) 2 NWLR (PT.229) 350; GALADIMA vs TAMBAI (2000) 11 NWLR (PT. 677) page 1.
Further in ADAMA vs STATE (2017) LPER – 42266 (SC), this Court per Mary Peter-Odili JSC held at page 36 that:-
“Jurisdiction, being a matter of the threshold and life wire of adjudication cannot be toyed with but taken with the seriousness it deserves. Therefore all bottlenecks are removed for jurisdiction to be brought in the Court at any level and in whatever manner since the competence of the Court to sit on the matter before it depends on that hurdle being sealed. The reason being that a Court will not have the competence and jurisdiction to entertain an action before it unless the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
The point being made here is that ground 1 of the Notice of Appeal complained about the lack of the jurisdiction of the trial Court to in the first place hear and determine the Respondents’ claim when the originating processes are incompetent and thereby robs the Court of the jurisdiction to entertain the suit ab initio. In the circumstance, the ground of appeal is not required to be derived from or relate to the judgment of the trial Court because the whole proceeding is what is being challenged for being null and void having not been initiated in accordance with the due process of law.
Consequently, I hold that ground (1) of the amended grounds of appeal is competent. The preliminary objection is accordingly overruled and is hereby dismissed.
MAIN APPEAL
APPELLANTS SUBMISSION:
In the Appellant’s brief of argument, four issues are formulated for determination. Issue one stands alone while issues 2, 3 and 4 are in the alternative. I will therefore deal first with issue 1 which outcome shall determine whether or not the alternative issues will be considered.
ISSUE ONE:
Herein, learned counsel for the Appellants submitted that the issue of jurisdiction can be raised at any stage of the proceedings even for the first time on appeal especially where the originating processes filed and relied upon by the Court in reaching a decision is defective and by the combined provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Cap 207 Laws of the Federation of Nigeria 1990, only a person whose name is on the roll of legal practitioners is entitled or authorized to act or appear before a Court in Nigeria. He added that M. A. BASHUA & CO., is not a legal practitioner whose name is on the roll within the contemplation of the Legal Practitioners’ Act and as such cannot competently sign Court process and in consequence, any process so signed is null and void. He referred to the following cases of AMAH & ORS V. NWANKWO (2007 12 NWLR [PT. 1049] 552 AT 560; FORESTRY RESEARCH INSTITUTE OF NIG VS. MR. I. A. ENAIFOGHE GOLD (2007) 11 NWLR [PT. 1044] 1 AT 7; GEORGE & ORS V. FED REP. OF NIG. (2010) 12 NWLR [PT. 1208] 247 AT 259.
It was further submitted that since the amended writ of summons and the amended statement of claim were signed and filed by M. A. BASHUA & CO, who is not a legal practitioner within the contemplation of the Legal Practitioners Act, the Respondents action could not be said to have been initiated by due process of law having not fulfilled the condition necessary for the exercise of jurisdiction. On this, he relied on the case of OKAFOR VS. NWEKE (2007) 10 NWLR [Part 1043] 521, S.L.B. CONSORTIUM LTD VS. N.N.P.C. (2011) 9 NNLR [Part 1252] 317; MIN. W. & T. ADAMAWA STATE VS. YAKUBU (2013) 6 NWLR [Part. 1351] 481; BRAITHWAITE VS. SKYE BANK PLC (2013) 5 NWLR (Part. 1346) 1.
RESPONDENTS SUBMISSION:
Arguing on their issue 1, it was submitted that an appeal before an appellate Court is initiated by the filing of a notice of appeal, which contains the ground of appeal showing the grouse or complaint of the Appellants wherein issues raised before the appellate Court must emanate from the grounds of appeal as contained in the Notice of Appeal. He added that the appellate Court does not have jurisdiction to raise and/or base the appeal on an issue not contained in the Notice of Appeal, instead the Court must first call on the parties to address it on that issue being that a Court cannot suo motu raise an issue and deliver judgment based on that issue. On this, he relied on RE OLAFISOYE (2004) ALL FWLR(PT. 198) 1106 S.C. NEKA B.B.B. MANUFACTURING CO LTD V. AFRICAN CONTINENTAL BANK LTD. (2004) ALL FWLR (PT. 198) S.C.
It was also submitted that at the lower Court, neither of the parties raised the issue of want of jurisdiction on the part of the lower Court or at the trial Court to entertain the appeal being that the law is clear that judges adjudicate on matters and issues raised before them, therefore the learned justices of the lower Court were not wrong when they heard the appeal based on the issues raised before them and there is no law which mandates judges to first probe or ask themselves whether they have jurisdiction or competence over a matter. He added that the fresh issues have not been properly raised before this Court and the appellants ought to have raised them in their ground of appeal challenging the decision of the trial Court directly, since leave of this Court had been granted to do so, instead the appellants challenged the decision of the lower Court, which was not based on want of competence even if the issue of want of jurisdiction can be raised for the first time at the Supreme Court.
Still on the principle of law, it was posited that the Appellants only relied on their briefs of argument and have not presented any fact upon which this Court can deduce from whether the writ of summons is competent or incompetent as it is only after the facts have been placed before the Court by way of affidavit that the Court can decide whether it has jurisdiction or not.
This issue borders on the competence of the entire proceedings at the trial Court culminating in the judgment appealed against, given the incompetent nature of the originating processes filed by the Respondents as claimants in the trial Court.
The position of the Appellants herein is that, since the amended writ of summons and the amended statement of claim were signed and filed by (M.A BASHUA & CO.) who is not a legal practitioner within the contemplation of the Legal Practitioners’ Act, the Respondents’ suit at the trial Court could not be said to have been initiated by due process of law, having not fulfilled the condition for the exercise of the Court’s jurisdiction.
For the Respondents, the issue of want of jurisdiction was not raised by the parties either at the trial Court or lower Court and the Courts can only adjudicate on matters and issues raised before them. Furthermore, that the issue of whether the writ of summons is competent can only be resolved where the facts are placed before the Court by way of affidavit even though the issue of want of jurisdiction can be raised at anytime.
Now dealing with the nature and scope of jurisdiction and its potency against any proceedings or decision of a Court made without jurisdiction, this Court per Niki Tobi JSC held in OKOLO & ANOR vs UNION BANK OF NIGERIA LTD (2004) 3 NWLR (PT. 859) 87 as follows:-
“Jurisdiction is the pillar upon which the entire case stands. Filling an action in a Court of law presupposes that the Court has jurisdiction. But once the defendant shows that the Court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. The case crumbles. In effect, there is no case before the Court for adjudication. The parties cannot be heard on the merit of the case. That is the end of litigation, unless the action is filed in a Court of competent jurisdiction, in which case the action is resuscitated de novo. Jurisdiction being the threshold of judicial power and judicialism and by extension extrinsic to adjudication, parties cannot by connivance, acquaintance or collusion confer jurisdiction on the Court. As a matter of law, issue of jurisdiction cannot be waived by one of the parties. This is because parties cannot conspire to vest jurisdiction in a Court when there is none.”
It is also the law that, since proceedings conducted without jurisdiction are null and void, no act of waiver, or other act that may be seen to have that effect can confer jurisdiction to validate such proceedings, vide ISHOLA vs AJIBOYE (1994) 6 NWLR (PT.352) 506; ODUTOLA vs. KAYODE (1994) 2 NWLR (PT.324) page 1.
The existence or absence of jurisdiction in the Court goes to the root of the matter and sustains or nullifies the decision of the Court in respect of the relevant subject matter. See OBIKOYA vs REGISTRAR OF COMPANIES (1975) 4 SC 31; EZOMO vs OYAKHIRE (1985) 1 NWLR (PT. 2) 195.
This sacrosanct state of the law necessitated the imperative concession to raise the issue of jurisdiction at any time or stage of the proceedings or on appeal as a substantive issue of law. Vide ONYEMA vs OPUTA(1987) 3 NWLR (PT. 60)259; BRONIK MOTORS LTD vs WEMA BANK(1983) 1 SCNLR 296; MADUKOLU vs NKEMDILIM (1962) 2 SCNLR 341.
In the instant case, what has engendered the challenge to the jurisdiction of both the trial and lower Court to entertain the matter ab initio is the discovery by the Appellants herein that the amended writ of summons and the amended statement of claim relied upon by the Respondents to commence the action at the trial Court were signed and filed by (M.A. BASHUA & CO) who is not a legal practitioner within the contemplation of the legal Practitioners Act.
The Respondents did not counter, challenge or deny this state of affairs. I have also read through the record of appeal and find it as true and correct that the amended writ of summons and the amended statement of claim were signed and filed by M.A. BASHUA & CO.
Section 2(1) of the Legal Practitioners Act provides thus:-
2(1) “Subject to the provisions of the Act, a person shall be entitled to practice as a Barrister and solicitor if and only if, his name is on the roll.
Furthermore, Section 24 of the same Act defines a legal practitioner in the following terms:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Section 24 “In this Act, unless the context otherwise required, the following expression have the meanings hereby assigned to them respectively, that is to say “Legal Practitioner” means a person entitled in accordance with the provision of this Act to practice as a Barrister or as a Barrister and solicitor, either generally or for the purpose of any particular office or proceedings.”
More than two decades now the narrative has changed in terms of the status of documents and processes filed before the Courts and signed by persons other than a Legal Practitioner as defined in the Legal Practitioner Act. Starting with the case of EMMANUEL OKAFOR ORS vs AUGUSTINE NWEKE & ORS (2007) 10 NWLR (PT.1013) 521 OR LPELR – 2412 (SC), this Court stated the current position of the law with regards to the proper person to sign a legal process and the effect of a legal document signed/Franked by a law firm, wherein at pages 11-12 of the report it was held per Onnoghen JSC (as he then was) as follows:
“The question that follows is whether J.H.C OKOLO SAN & CO is a Legal Practitioner recognized by the law? From the submission of both Counsel, it is very clear that the answers to that question is in the negative. In other words, both senior Counsel agree that J.H.C OKOLO SAN & CO is not a legal practitioner and therefore cannot practice as such by say, filing processes in the Courts of this country. It is in recognition of this fact that accounts for the argument of learned Senior Advocate for the Applicants that to determine the actual person who signed the processes, evidence would have to be adduced which would necessarily establish the fact that the signature on top of the inscription J.HC. OKOLO SAN & CO actually belong to J.H.C. OKOLO SAN who is a legal practitioner in the roll. I had earlier stated that the law does not say that what should be the signature of the legal practitioner but his name. That apart, it is very clear that by looking at the documents, the signature which the learned Senior Advocate claiming to be his really belongs to J.H.C OKOLO SAN or was appended on its behalf. Since it signed on top of that name, since both counsel agree that J.H.C OKOLO SAN & CO is not a legal practitioner recognized by the law, it follows that the said J.H.C OKOLO SAN & CO cannot legally sign and file any process in the Courts and as such the motion an notice file on 17th, December 2005, notice of cross-appeal and applicants brief of argument in support of the said motion all signed by the firm known and called J.H.C OKOLO SAN & CO are incompetent in law particularly as the firm of J.H.C OKOLO SAN & CO is not a registered Legal Practitioner.”
Further at page 12, his Lordship noted that:-
“Legal Practitioners have formed the habit of signing Court processes in their partnership or firms name without indicating the name of the practitioner signing the process. Such documents are incompetent and are liable to be struck out, the proposed notice of cross-appeal in support of the motion were incompetent in that they were not issued by a Legal Practitioner known to law.”
Also, in amplifying the stance of this Court on the erroneous act of signing Court processes in the name of a firm of solicitors, this Court in S.L.B CONSORTIUM LTD vs NNPC (2011) 9 NWLR (PT. 1252) 317 made the point clearer at page 336 in the following terms:-
“A firm of solicitors is not competent to sign processes. The signature of Ademola Adesokan& Co., on the originating summons of the Appellants robbed the process of competence ab initio as the said firm is not a registered legal Practitioner enrolled to practice law as Barrister and solicitor in the Supreme Court. In the prevailing circumstance, all the proceedings which rested on the inchoate originating summons were deemed not to have taken place in law.”
A plethora of subsequent decisions have followed the same line of thought and reasoning to conclude that a Court process signed by a law firm and not by a Legal Practitioner whose name is enrolled to practice as a Barrister and solicitor of the Supreme Court is ab initio incompetent. Therefore any proceedings or decision based on such incompetent process is null and void. The other authorities includes:- BRAITHWAITE vs SKYE BANK PLC (2013) 5 NWLR (PT.151) 201; OKARIKA & ORS vs SAMUEL & ANOR (2013) 7 NWLR (PT 1352) 19; MINISTER OF WORKS & TRANSPORT, ADAMAWA STATE vs YAKUBU (2013) 6 NWLR (PT 1351)481; NAWIYE vs OGUNSANYA (2013) 5 NWLR (PT11348); HAMZAT & ANOR vs SANNI & ORS (2015) LPELR – 24302 (SC).
From the above cited authorities, it is now settled law that an initiating process whether writ of summon, Originating Summons, Originating Motion or Notice of Appeal must be coated with validity and competence in order to confer jurisdiction on the Court to adjudicate on matters presented before it by the parties.
In the instant case, the Amended writ of summons was found to have been signed and filed by the firm of M.A. BASHUA & CO., which is not a Legal Practitioner whose name is on the roll within the contemplation of the Legal Practitioners Act. The same goes with the amended statement of claim also signed and filed by the firm of M.A. BASHUA & CO. As earlier stated in this judgment, the combined effect of the provisions of Section 2 (1) and Section 24 of the Legal Practitioners Act is that, for a person to be qualified to practice as a Legal Practitioner, he must have his name in the roll otherwise he cannot engage in any form of legal practice in this country and this strictly includes the signing and filing of Court processes. M.A. BASHUA & CO., is not a Legal Practitioner within the definition contained in the Legal Practitioners Act.
Therefore, there is no doubt that the originating processes (amended writ of summons and amended statement of claim) prepared and signed by M.A. BASHUA & CO are incompetent as they are not known to law. This renders then the aforementioned processes null and void ab initio.
It is rather sad and unfortunate that a suit commenced since 1998 to resolve a land dispute between the parties and have gone through the process of adjudication in the trial Court, the Court of Appeal, and now in this Court spanning a period of twenty-three years shall end up a nullity due to what the law sees as an incompetent originating process. In the words of Fabiyi JSC in OKAFOR vs NWEKE (Supra):-
“The provisions of Sections 2 (1) and 24 of the Act remain the law and shall continue to be so until when same is repealed or amended.”
On this note, I hold that the amended writ of summons and amended statement of claim having been signed in the name of a law firm (M.A. BASHUA & CO) and not a Legal Practitioner within the contemplation of Section 2(1) and 24 of the Legal Practitioners Act, they are hereby declared incompetent.
This issue is accordingly resolved in favour of the Appellants and consequently put paid to further consideration of the other issues formulated in the alternative. On the whole, this appeal succeeds and it is hereby allowed.
The amended writ of summons and amended statement of claim filed by the Respondents to commence suit no. ID/2219/98 at the trial Court are hereby struck out for being incompetent.
Appeal allowed
Parties to bear their respective costs.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Oseji, JSC, and I agree with his reasoning and conclusion therein. To start with, Section 2(1) of the Legal Practitioners Act, Cap L11, 2004, provides as follows:
“Subject to provisions of this Act, a person shall be entitled to practice as barrister and solicitor if, and only if, his name is on the roll.”
And Section 24 of the same Act (Interpretation Section) says that:
“In this Act, unless the context otherwise requires, the following expressions have the meaning 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 solicitor, either generally for the purposes of any particular office or proceedings.”
This Court has considered the above provisions in several cases. For instance, in the well-known case on Okafor V. Nweke (2007) 10 NWLR (Pt. 1043) 521, wherein a Motion on Notice was signed by “J.H.C. Okolo, SAN & Co”, this Court per Onnoghen, JSC (as he then was), categorically stated as follows –
The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner he must have his name in the roll, otherwise, he cannot engage in any form of legal practice in Nigeria. – – J.H.C. Okolo SAN & Co is not a legal practitioner recognized by the law, it follows that the said J.H.C. Okolo SAN & Co cannot legally sign and/or file any process in the Courts and as such the Motion on Notice – – Notice of Cross-Appeal and brief of argument – – all signed and issued by the firm known and called J.H.C. Okolo SAN & Co., are incompetent in law particularly as the said firm of J.H.C. Okolo SAN & Co is not a registered legal practitioner.
See also SLB Consortium V. NNPC (2016) 9 NWLR (Pt. 1252) 317, wherein this Court per Fabiyi, JSC, explained the rationale for this principle, as follows:
“The signature of “Adewale Adesokan & Co” on the originating summons of the Appellant robs the process of competence ab initio as the said firm is not a registered legal practitioner enrolled to practice law as Barrister and Solicitor in this Court – – In the prevailing circumstances, all the proceedings, which rested on the inchoate originating summons, are deemed not to have taken place in law. One cannot put something on nothing and expect it to stand. This is as stated decades ago in UAC v. Macfoy (1962) AC 152 at 160.”
Yes, one cannot put something on nothing and expect it to stand, which means that there is no case for adjudication – see Min. of W. & T., Adamawa State V. Yakubu (2013) 6 NWLR (Pt. 1351) 481, wherein this Court observed that:
The fatal effect of the signing of an originating process by a law firm is that the entire suit was incompetent ab initio. It was dead at the point of filing. This highlights the painful realities that confront a litigant when counsel fails to sign processes as stipulated by law. The originating process is fundamentally defective and incompetent. It is inchoate, legally non-existent.
Thus, this issue touches on jurisdiction, which is aptly described as the pillar upon which the entire case stands, and once it is shown that the Court lacks jurisdiction, the foundation of the case is not only shaken, the case crumbles. The processes filed by a law firm in this case were dead on the point of filing, and in the eyes of the law, they are not only defective but legally non-existent.
This appeal succeeds, and it is allowed. The Amended Writ of Summons and Amended Statement of Claim are incompetent, and they are struck out.
I abide by the consequential orders in the lead judgment, including the order that the parties shall bear their respective cost. Appeal allowed.
UWANI MUSA ABBA AJI, J.S.C.: I have read in advance the lead judgment of my learned brother, SAMUEL OSEJI, JSC, delivered. I concur without reservation with his reasoning and conclusion that the appeal be struck out for incompetence.
The instant appeal has a jurisdictional flaw. The Respondents challenge the competence of the Appellants’ appeal having being initiated by a defective amended writ of summons and amended statement of claim, signed by M.A. BASHUA & CO, who is not a legal practitioner.
This case has been over flogged by this Court and lawyers must be prepared to bear the brunt that they have an incurably bad case once an originating process has not been signed by a legal practitioner, and not to waste the precious time of this Court in untenable arguments.
It must be re-echoed that a legal document or any originating process not signed by a legal practitioner in accordance with the law is nothing but a worthless piece of document or process and cannot activate rights and obligations of the parties or confer jurisdiction on that Court before which it appertains. See OMEGA BANK (NIG) PLC V. O.B.C. LTD (2005) LPELR-2636(SC).
Consequently, the amended writ of summons and amended statement of claim, signed by M.A. BASHUA & CO., who is not a legal practitioner, rendered the whole proceedings incompetent and worthless. The Courts that tried this appeal never had the jurisdiction to do that and the whole proceeding was a nullity.
TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother SAMUEL CHUKWUDUMEBI OSEJI, JSC granted me the privilege of reading in draft the leading judgment prepared and rendered in this appeal. My Lord has fully covered the field in the leading judgment.
I am therefore in full agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add. I abide by all consequential orders including the order on costs.
EMMANUEL AKOMAYE AGIM, J.S.C. (DISSENTING): I had a preview of the lead judgment delivered by my learned brother, the highly esteemed Lord Justice SAMUEL CHUKWUDUMEBI OSEJI, JSC. With due respect, I hold a different view on the issues raised for determination in this appeal by the parties, which issues are reproduced in the lead judgment.
The lead judgment of this Court determined only issue no. 1 which asks – “Whether the learned Justices of the Court of Appeal were right in exercising jurisdiction over the appeal in view of the fact that the action was initiated without due regard to due process of law?” It decided that the writ of summons that commenced the suit at the trial was incompetent and that therefore the trial Court lacked the jurisdiction to entertain and determine it. It then held that there was therefore no use determining the alternative three issues dealing with the evidential basis of the findings of facts by the trial Court and its declaration of title of the disputed land in favour of the respondents.
I have carefully read and considered the arguments in the respective briefs on issue no. 1. The gist of the arguments are restated in the lead judgment.
The arguments of learned SAN for the appellants are at variance with the said issue no. 1 as couched. While issue no. 1 contends that the Court of Appeal should not have exercised jurisdiction over the appeal because the action was initiated without regard to the due process of law, his argument thereunder is that the trial Court heard and determined the action on an incompetent originating process and that therefore the trial Court had no jurisdiction to entertain the action. It is settled law that the arguments of an issue must address the issue as couched and not address an issue different from the one under which the argument is made. Any argument at variance with the issue under which it is made is incompetent.
The said issue no. 1 as framed is also at variance with ground 1 of the amended grounds of appeal which complains that-
“1. The learned Justices of Court of Appeal erred in law inaffirming the judgment of trial Court when the action was not initiated by due process of law
PARTICULARS OF ERROR
(a) The writ of summons, amended writ of summons, statement of claim, amended statement of claim as well as reply to statement of defence were signed and filed by M. A. Bashua & Co.
(b) M. A. Bashua & Co., is not a legal practitioner within the Legal Practitioner Act.
(C) The action was prosecuted on the basis of the amended writ of summons and amended statement of claim signed and filed by M.A Bashua& Co. Obviously this ground did not challenge the jurisdiction of the Court of Appeal to hear the appeal and rather admits that it can exercise that jurisdiction. Its complaint is that in the exercise of that jurisdiction, it should not have affirmed the decision of the trial Court on the merits of the case. Issue no. 1 challenged the jurisdiction of this Court over the appeal. As couched, the subject matter of the said issue no. 1 is not the same with the subject matter of any of the issues raised for determination in this appeal. It is therefore incompetent and not valid for consideration in this appeal. The law is settled that an issue for determination that is not derived or does not arise from the grounds of the appeal is incompetent, and not valid for consideration. See Modupe v the State (1988)9SCNJ 1 and Registered Trustees of the Apostolic Faith Church v James and ors (1987)7 SCNJ167.
In any case, assuming the process that originated the suit at the trial Court was incompetent, that cannot rob the Court of Appeal the jurisdiction to entertain and determine the appeal against the judgment of the trial Court in a case based on the incompetent process. The Court of appeal by virtue of Ss. 240, 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 has the jurisdiction to hear and determine appeals against the decisions of High Courts. In the exercise of that jurisdiction, it can determine the appeal on the ground that the trial Court lacked the jurisdiction to entertain and try the case because the process that originated it is incompetent. So issue no. 1 as couched in the appellant’s brief is as meaningless as it is invalid.
Inspite of my holding that issue no. 1 is incompetent, let me consider the argument that the writ of summons that commenced the suit at the trial Court is incompetent for whatever it is worth.
The center of the arguments of learned SAN for the appellant is that the endorsement of the plaintiff’s claim on the writ of summons that originated the proceedings in the trial Court was signed by a firm of legal practitioners, M.A. Bashua & Co and not by a legal practitioner and that therefore the said writ of summons is incompetent.
The writ of summons had already been signed, sealed and issued by the Registrar of the trial Court on 5-10-1998 after the plaintiffs’ application in form 1 (the writ) was presented in the registry of the trial Court for filing and the filing fees assessed by the registrar paid. The writ of summons became a valid legal originating process once it was filed, signed, sealed and issued by the Registrar. Once the Registrar of the trial Court accepted the plaintiffs’ application in Form 1 for the filing and issuance of a writ of summons, filed and issued it, inspite of any defects in the application (Form 1), a valid writ of summons comes into existence. The Registrar has the prerogative power to refuse to accept for filing a writ of summons because of omissions or other defects in the Form 1 in which the application is made. But once he or she accepts it for filing, file and issue same, the writ of summons becomes legally effective.
In any case, there is nothing in Order 2 and the entire provisions of the Lagos State (Civil Procedure) Rules 1994 (the then prevailing Rules) that required that the writ of summons must be signed by the claimant or his legal practitioner before it can be filed or issued by the Registrar. What it required is stated in Rules 2 and 3. That “A writ of summons shall be issued by the Registrar, or other officer of the Court empowered to issue summonses, on application. The application shall ordinarily be made in writing by the plaintiff’s solicitor by completing Form 1 in the Appendix to these rules; but the Registrar or other officer as aforesaid, where the applicant for a writ of summons is illiterate, or has no solicitor, may dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared, signed and issued.”The writ that commenced the suit at the trial Court is at pages 1 and 2 of the record of this appeal. It is obvious that it is completely or substantially in compliance with Form 1 of the Appendix to the said Rules of Court. Even though Order 2 Rules 2 and 3 or any other part of the Rules did not require that the application in Form 1 be signed, and Form 1 of the appendix to the rules did not provide for such signature, there is a signature on top of the name of the firm of legal practitioners that applied for the issuance of the writ in Form 1 immediately after the endorsement of the plaintiffs’ claim in the writ.
The name and address of the firm is stated as provided for in Form 1 of the Appendix to the Rules. What was omitted was the name of the legal practitioner in that firm that signed the said endorsement.
It is not in dispute that M.A. Bashua & Co, that prepared the writ in Form 1 and presented same for filing, is a firm of Legal Practitioners. The omission to state the name of the particular legal practitioner in the firm that prepared and presented the writ in Form 1 for filing is a mere irregularity that cannot vitiate the writ. See Akinola V Fasehun &Ors (1967) NMLR 56. This is more so as the plaintiffs who were also entitled to apply orally for the issuance of a writ, did not disown the writ of summons and the claim therein as theirs and prosecuted their claim till judgment and up till now. Also as the record of this appeal shows, M.A. Bashua SAN and other counsel conducted the case for the plaintiffs in the trial Court till judgment and in the appeal proceedings in the Court of Appeal and is still doing so here.
If the respondents had no legal practitioner or were illiterates, Order 2 Rule 3 of the 1994 Rules enable the Registrar to dispense with a written application, and instead, himself, record full particulars of an oral application made and on that record a writ of summons may be prepared, signed and issued. Therefore, it is absurd and unreasonable to argue that written application presented on behalf of the applicant has vitiated a writ issued by the Registrar on the written application because the name of the signatory of the written application is omitted. It is clear from the acceptance of oral application that the form of the application is of no moment when the writ has been issued by the Registrar. The argument of the appellants is that without the name of the particular legal practitioner that signed the endorsed claim in the writ of summons, the application for the issuance of the writ cannot be said to have been made by a legal practitioner. If the application was not made by a legal practitioner on behalf of the respondents, then it means that the respondents had no legal practitioner when they applied for the issuance of the writ and are therefore entitled to apply orally, and if they chose to do so in writing, are not bound to comply with the formal requirements of an application made by a legal practitioner.
The omission to state the name of the particular legal practitioner that signed the endorsed claim amounts to non-compliance with the requirement of Form 1 in the Appendix to the Rules that the name and address of the legal practitioner that made the application as agent of the plaintiffs be stated therein after the endorsed claim. The non-compliance is in respect of the application. Upon the Registrar accepting the defective application and issuing a writ on it, the defect in the application becomes redundant and defunct. The non-compliance in the application cannot affect the validity of the already filed and issued writ of summons.
In any case, the said Rules in Order 1 Rule 1 prescribe the effect of non-compliance with any provision of the Rules thusly- “Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.”
The argument that the said non-compliance vitiated the writ, rendered it a nullity and robbed the trial Court the jurisdiction to entertain the suit is wrong. Even in cases where the filed originating process was not signed by the officer authorized by the rules to sign and issue it, this Court has held the originating process valid and competent, describing such failure to sign the originating process as a mere procedural irregularity. In Anyanwoko v Okoye(2010) 5NWLR (Pt. 1188) 497 at 516, the Supreme Court held thusly-
“…..it occurs to me that the issue of non-signing of the originating summons by the Registrar of the trial Court or an officer of the Court duly authorised to sign same is mere lapse on the side of the Registrar of the trial Court. It is non-compliance with the Court Rules of Procedure which regulate the exercise of jurisdiction conferred on a Court by a statute. It has nothing to do with the jurisdiction of that Court.”
In Famfa Oil Ltd V AG of the Federation & Anor(2003) LPELR -1239(SC), this Court held that the “failure of the Judge to sign the originating summons is mere procedural irregularity”, that “a procedural irregularity should not vitiate a suit once it can be shown that no party has suffered miscarriage of justice”, that “any non-compliance with any Rules of Court is prima facie an irregularity and not a ground for nullity, unless such non-compliance amounts to a denial of natural justice.”
This Court in Famfa Oil case followed its earlier decision in exactly similar circumstances in Saude V Abdullahi (1989) 7 SC (Pt.ii) 116 that failure of a judge to sign an originating summons is a procedural irregularity.
Order 2 Rule 2 of the Lagos State High Court Rules 1994 limits the time within which non-compliance with the Rules can be made thusly – “An application to set aside for irregularity any step taken in the course of any proceeding may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”
The respondents did not challenge the regularity or competence of the application for the issuance of the writ or the writ itself or any other process in the proceedings in the trial Court and Court of Appeal. The issue was raised for the first time in ground 1 of this appeal in this Court without the leave of this Court to raise it as a fresh issue in this appeal.
The notion that it is a jurisdictional issue and so can be raised in any manner at any stage of the proceedings even for the first time in this Court without leave to raise it as a fresh issue is wrong. See Anyanwoko v Okoye(supra), Famfa Oil Ltd V AG of the Federation & Anor(supra) and Saude V Abdullahi (supra) in which this Court held that non-compliance with the rules of Court even in issuing the originating process, including failure to sign the writ of summons or originating summons is a mere procedural irregularity that has nothing to do with the jurisdiction of the Court. Order 1 Rule 1 of the 1994 Rules by providing that failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein, abolished the old distinction between nullities and irregularities and therefore every non-compliance with rules of procedure of a Court, is to be regarded as an irregularity which the Court can rectify or condone without injustice to the adverse party and the parties can consent to it by not timeously objecting to same. Therefore, the omission to state the name of the particular legal practitioner in the firm of legal practitioners that applied for the issuance of the writ of summons as agent of the plaintiffs is a mere procedural irregularity. (Order 2 Rule 2 of the Lagos State High Court Rules 1994 prescribe how and when non-compliance with the rules can be challenged. It states that it is by an application to set aside the process or step and that it must be made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. It is glaring from the record of this appeal that the appellants herein filed a memorandum of appearance unconditionally on 19-10-1998 and their statement of defence on 5-11-1998 in response to the writ of summons and statement of claim served on them and raised no issue about the application for the issuance of the writ or the writ itself. Upon being served with a process, the party so served becomes aware of the processes and their contents. This is more so when responsorial processes are filed by that party.
It is glaring that the appellants took several steps throughout the trial without challenging the regularity of the application for the issuance of the writ or the writ itself. They filed processes, cross-examined plaintiffs’ witnesses, elicited evidence in defence through their witnesses, made final address until judgment. They equally did not raise it in the Court of Appeal. They have raised it here for the first time as ground one of this appeal without first obtaining the leave of this Court to do so.
Having taken several steps in the proceedings after becoming aware of the said irregularity, it is too late for the appellants to competently raise that issue. It became too late even at the trial Court upon the filing of an unconditional memorandum of appearance or the statement of defence. The rules limited the time for raising procedural issues to before taking any fresh steps after becoming aware of the non-compliance. It is obvious from the express words of the rules that the issue must be raised during the trial proceedings as it arises. Procedural issues that are required by the rules of a trial Court to be raised in the trial proceedings promptly cannot be raised in this Court for the first time. Allowing such issue to be raised in this Court for the first time under any guise, will not only violate the relevant Rules of the trial Court, but also cause grave injustice, as it can result in procedural issues that had existed in the trial proceedings and abandoned by the parties being exhumed now to override or upturn the final determination of the merit of dispute by two Courts in trial and appeal proceedings that may have lasted for several years. As this Court held in Obiode & Ors V Orewere & Ors(1982) 1-2 SC 83:
“It is indeed a well-established principle that this Court does not approve that points which could or ought to have been taken in the Courts below should be raised for the first time before it. However, the rule is subject to a number of exceptions, some of which have been copiously set out in Djukpan’s case (supra). Suffice it to say that the violation of some principles of procedure or their neglect, which if corrected, the decision in the case cannot stand, has been held to be an exception to the rule.” My view is that if the determination of such an issue for the first time in this Court would not cause injustice to the adverse party or bring administration of justice to disrepute, it should not be allowed. See also Cooperative & Commerce Bank Nig. Plc V A-G Anambra State & Anor (1992) 10 SCNJ 137.
The suit leading to this appeal was filed on 19-10-1998. Litigation in the case has lasted for over 23 years from that date, from the trial Court through the Court of Appeal to this Court. If the appellant had raised this issue of non- compliance with Order 2 Rules 1 and 2 of the Lagos State (Civil Procedure) Rules 1994 within the time limited by Order 2 Rule 2, it would have been determined in limine before the appellant filed his statement of defence or at the trial. If the objection is upheld here, it would frustrate the respondents’ 23 years quest for justice in the Courts and make a mockery of the Courts. It would disrepute the Court to wait till after 23 years of litigating in three Courts, to tell the claimants that an originating process they filed 23 years ago is incompetent for non-compliance with rules of Court and that for that reason all the proceedings of the two Courts and the judgment of the Court of Appeal in their favour are nullified. It is obvious that at this stage the respondents who would have exhausted much of their resources, would have become litigation weary and too exhausted to commence another case. Such a situation makes fair hearing of the case within a reasonable time impossible and violates S.36 (1) of the 1999 Constitution that provides “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.
It is obvious that the appellants had consented to the irregular procedure in applying for the issuance of the writ by not challenging the said application in the trial and appeal proceedings. They have not shown or even alleged that the irregular application caused them any injustice. This Court has restated in a long line of cases that a party who at the trial consented to an irregular proceeding cannot be heard on appeal to challenge that procedure so as to set aside the proceedings and judgment that had been rendered against him or her. See for example Life and Fire Insurance Co. Ltd V I.B.W.A Ltd (2001) & NWLR(Pt.713) 610, Olubode V Salami (1985) 2 NWLR (Pt. 2) 282. The appellant should not be allowed to benefit from their failure to comply with Order 1 Rule 2(2) in making the objection to the writ for non-compliance with Order 2 Rule 3. It is obvious that they have raised the issue here for the first time to set aside the Court of Appeal judgment against them and not in pursuit or furtherance of the justice of the case. To uphold such an objection would elevate technicality over the pursuit of the justice of the merit of the dispute that was before the Courts for resolution and bring administration of justice to disrepute.
The decisions of this Court in Okafor V Nweke (2007)10 NWLR(Pt.1013) 521, SLB Consortium Ltd V NNPC (2011) 9 NWLR (Pt.1252) 317, Amah & Ors V Nwankwo (2007)12 NWLR (Pt.1049) 552 and other cases relied on by learned SAN for the appellant in arguing that a firm of legal practitioners signed the writ and that this has rendered it incompetent cannot apply in this case because the issue of whether the signing and issuance of the writ by the Registrar overrides and rendered irrelevant any defect or omission in the application for the issuance of the writ of summons was not raised, considered and determined in any of those cases. The issues determined in those cases are not the same with the issue determined here. Therefore, those decisions cannot bind this Court in determining the issue in this case in line with the principle of stare decisis. A previous decision of this Court can bind it in a later case if the cases are similar in the sense that the issues of law or fact determined both cases are the same. Dissimilar cases must be decided differently. In this case, the legal practitioner of the plaintiff did not issue the writ. The rules prescribe that the Registrar of the trial Court is the competent authority to sign and issue the writ of summons. The issue of whether the writ;; was signed by a legal practitioner would have been relevant and useful if the rules had prescribed that it is the legal practitioner that issues the writ by signing it. In any case, the firm of Legal practitioners, M.A. Bashua & Co did not sign the writ. The signature on top of their practice name after the endorsed claim in the writ was made on the application in Form 1 for the issuance of the writ before the writ of summons was filed, signed, sealed and issued by the Registrar.
In the light of the foregoing, I hold that the argument that the writ of summons is incompetent lacks merit and is hereby dismissed. Having made this clarification concerning a writ of summons issued by the Registrar as required by the Rules, I think I should stop here.
I have already held herein that issue no. 1 as couched is incompetent It is hereby struck out.
Let me now consider the alternative issues nos. 2, 3, and 4 that deal with the merit of the appeal. I will consider all the issues together as they all deal with the evidential basis of the declaration of title to the suit land in favour of the respondents by the Court of Appeal.
The appeal to this Court is against the decision of the Court of Appeal concerning the trial Court’s findings of facts about who between the appellants and respondents herein own two separate areas of land namely, Ewu Abiye and Ewu Balogun.
The said trial Court’s findings of facts read thusly-
“I found as a matter of fact that Ayangade was the first settler on Ewu Abiye where he practices his profession as a herbalist. He was already on the land before Adeloye was taken to him by his brother. He treated Adeloye who later had a child called ‘Manoruko’. The ownership of Ewu Abiye by Ayangade is strengthened by the evidence of 80-year-old P.W.2 who claims to be boundary man to the plaintiffs. He was born at Market village and a boundary man to Ayangade. His father and grandfather all lived at Morekete. He denied knowledge of Solumade on that land.
PW3 also claim that he lives at Ewu Abiye and farms at Igbo-Opa in Ewu Abiye. He testified that he collects Isakole from other tenants and pays it to the Ayangade family. Ayangade family are our landlords, we have never been challenged on the land.
PW4 also testified that he is a boundary man to the plaintiffs at Abule llado and Ewu Abiye. The full name of the village is Llado-Inu. Llado-lnu has boundary with Ewu Abiye. The defendants have not been able to produce any boundary man for Ewu Abiye.
I hold that Ayangade is the first settler and founder of Ewu Abiye. I hereby declare that the Ayangade family are the right owners and they are entitled to the customary right of occupancy on the land.
There is no credible evidence to support the plaintiff’s claim by Ewu Balogun. P.W.1 did not proffer any evidence in support. He even said in his evidence in chief that the land in dispute is in Ewu Abiye. P.W.1 testified that they put a tenant on the land who is P.W.8. P.W.8 testified that they have been in undisturbed possession of the canal called Ito Deloye. Where is Deloye? Is it at Ewu Balogun? I will answer positively that Ito Deloye is at EwuAbiye.
Apart from the evidence of PW5, Mr. Tajudeen Sadiku who is an interested party, there is no one to corroborate his evidence. I appreciate that what is important is the preponderance of evidence and not corroboration but in giving traditional evidence in support of title, it is always desirable that the evidence be corroborated.
Exhibit J-12 are repayments to evidence of repayment of debt to Jaiyesimi family after the death of their father who later became Balogun of Ikorodu. This ipso facto means that the land at Ewu Balogun was on pledge to Balogun Jaiyesimi and the land cannot be redeemed until the debt is paid. The debt having been repaid as depicted or shown in Exhibit J-12. I hold that the land has reverted to the original owners, Solumade family.
The Defendants are descendants Olofin, I believe founded Oreta and some other villages including Ewu Balogun. Solumade is a descendant of Olofin. Amongst his tenants is James Afron who testified thus: “I know the Defendants. My father brought me to Ewu Balogun in Oreta area as a small boy. My father was farming there. My father returned home when he became old and I took over the land he cultivates. I am still in occupation of the land. The defendants are our landlords; my father pays them annually.
The defendants also recognized me when my father returned home and I continue to pay them the annual dues. I am about 82 years old, I was on land as far back as 1945. I have been having peaceful enjoyment of the land until about 3 to 4 years ago when this case started”. The evidence of this witness goes to establish a case of long possession against the plaintiffs and exercise of right of ownership by collecting annual rent for the use of the land by the defendants.
With the preponderance of evidence in favour of the defendants, I hold that the plaintiff have failed to establish their title to the land known as EWU BALOGUN. I will grant the ownership of the land to the counter-claimants.
I HEREBY DECLARE:-
1. That the plaintiffs are entitled to the customary certificate of occupancy on the land known as ‘EWU ABIYE’ farm land in Igbogbo, Ikorodu Local Government Area which is more particularly described in survey plan No. LAT/39/LA/2000.
2. The plaintiff’s claim for title on the land situate and known as EWU BALOGUN fails. I declare that the counter-claimants, the Defendants are entitled to the customary right of occupancy on the land known and described as “EWU BALOGUN” farmland in Igbogbo in Ikorodu Local Government area which is more particularly delineated on plan No. LAT/39/LA/2000.
3. There shall be no award of damages to both sides.
4. I hereby order perpetual injunction restraining the defendants by themselves, their agents, servants, privies whatsoever and assigns from remaining on the land or continuing their acts of trespass to the land in EWU ABIYE farmland.
5. I hereby order perpetual injunction restraining the plaintiffs by themselves, their agents, servants, privies whatsoever and assigns from remaining on the land or continuing their acts of trespass to the land at EWU BALOGUN farmland.”
The respondents herein appealed against the finding that EWU Balogun is not part of Ewu Abiye and that Ewu Balogun belonged to the appellants herein and the declaration that the appellants herein are entitled to the customary right of occupancy of Ewu Balogun. The appellants herein cross-appealed to the Court of Appeal against the trial Courts finding that Ewu Abiye belongs to the respondents herein and declaration that the respondents are entitled to the customary right of occupancy of Ewu Abiye.
The Court of Appeal held thusly: –
“According to the learned trial Judge, Ito Deloye is at Ewu Abiye. From the evidence available, Ito Deloye is in Ewu Balogun farmland. This facts flow from the evidence of PW1 who said:
“Adeloye returned from Lagos to Ewu Abiye to assist her child (Manoruko) in nursing her children. In addition to taking care of the children, she sought permission of his father in-law to own land and till the land and part of water-ways for fishing. Canal was dug for her and the canal is called “to Deloye” up till today. The children of Adeloye planted kolanut and cocoa on the land given to her. The plants are still on the land. I know Akintelu Jaiyesimi, Dediya and Liasu Fabunmi. They are customary tenants of the farm of Adeloye. They are all dead. After their demise the land was given to one Ilaje sect called Major and Enigbonjaiye. Akintelu Jaiyesimi who was one of the customary tenants became Balogun of Ikorodu. Akintelu Jaiyesimi used to fish along the Ito Adeloye river. He built a small hut there, from where he deals with his fish customers. The customers named the place Ewu Balogun.”
This evidence of PW1 quoted above is corroborated by the evidence of PW5 testified that the Ito leading to the lagoon is called Ito Deloye and that Deloye is the daughter of Olofin and not Solumade. P.W.8 is a tenant on Ito Deloye. He has been a tenant since 1937 and he carries out fishing on the same canal. According to him, the same has two tributaries; one goes to Ewu Abiye while the other goes to Ewu Balogun.
DW1 admitted in his evidence that Ewu Balogun was named after Balogun Jaiyesimi of Ikorodu who was a customary tenant on the farm of Adeloye, an in-law of Ayangade.
On the face of the Court’s finding and the overwhelming evidence that Ewu Balogun is part of Ewu Abiye farmland, it is surprising that the conclusion reached by the trial Judge is contrary to that finding. It also held that the trial Court “was wrong in awarding Ewu Balogun farmland to the Respondents who did not file a counter-claim to that effect. The award is accordingly set aside.”
The Court of Appeal dismissed the cross-appeal by the appellant herein.
In this appeal, learned SAN for the appellant has argued that there was no justification for the Court of Appeal to have interfered with the trial Courts finding of fact that Ewu Balogun is not part of EwuAbiye and reached a contrary conclusion. Learned counsel for the respondent argued in reply that the said interference with the trial Court’s finding and decision is justified by the testimonies of PW1 and PW5 and PW8.
The law is settled that an appellate Court has no power to interfere with the findings of facts by a trial Court except where such findings are not supported by the evidence or are perverse. See ELF Nig. Ltd v Sill oxers (1994) 6 NWLR (Pt350)258. Therefore, such interference with the findings of fact by a trial Court must be preceded by a consideration of whether the finding is supported by evidence and a decision that the finding of fact is not supported by the evidence or is perverse. In our instant case, it is glaring from the Judgement of the Court of Appeal that it considered if the trial Court findings of fact that Ewu Balogun is part of Ewu Abiye is supported by the evidence and reached the decision that it is contrary to the evidence before interfering with the said findings of facts. This is obvious from the portion of the judgment of the Court of Appeal reproduced above.
Learned SAN for the appellant argued that the conclusion of the Court of Appeal is not supported by the pleadings and herein, that their pleadings particularly paragraph 4 of the statement of claim and Exhibit B, D and G show that Ewu Abiye and Ewu Balogun are distinct villages. But learned SAN was silent about the portion of the testimony relied on by the Court of Appeal in setting aside the finding of the trial Court that Ito Deloye is in Ewu Abiye and holding that it is in Ewu Balogun. What is significant about this evidence is that it establishes that Adeloye, a descendant of the appellants was given the Canal (Ito Adeloye) by her father in-law (the respondents ancestors) and her heirs have customary tenants thereon. Some of such tenants are PW8 and one Balogun Jaiyesimi. DW1 acknowledged that the Ewu Balogun was named after this Balogun Jaiyesimi, the customary tenant of Adeloye, the daughter-in-law of Ayangade (the great grandfather of the respondents at Ito Adeloye). Learned SAN for the appellants did not challenge this portion of the decision of the Court of Appeal and said nothing about the Court of Appeal’s reliance on the evidence of PW5, PW8 and DW1. If Ito Adeloye is in Ewu Balogun and Balogun Jaiyesimi whom the land area was named after was a customary tenant of Adeloye, who got the land from her father-in-law Ayangade (ancestor of respondents), then it is reasonable to conclude that Ewu Balogun is part of the area the ancestor of the respondents, Laare Ayangade, first settled. It is the duty of the appellant that contends that the interference with the trial Court’s findings of fact by the Court of Appeal is not justified to show that the evidence the Court of Appeal relied on to interfere with the said trial Court’s findings does not justify the interference. Learned SAN for the appellant said nothing about the evidence relied on by the Court of Appeal and thereby failed to show that the interferences were not justified.
In the light of the foregoing, all the three alternative issues are resolved in favour of the respondents.
On the whole, this appeal fails as it lacks merit. It is accordingly hereby dismissed.
Appearances:
AFOLABI FASHANU, SAN with him, Nnamdi Akuneto For Appellant(s)
M. ADEREMI BASHUA For Respondent(s)
