REGISTERED TRUSTEES OF CAC v. AFOLABI
(2020)LCN/15201(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Wednesday, March 18, 2020
CA/EK/10/2018
Before Our Lordships:
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
REGISTERED TRUSTEES OF CHRIST APOSTOLIC CHURCH APPELANT(S)
And
KOLAWOLE AFOLABI RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
It has been well settled that the question of jurisdiction is very fundamental to the adjudication of any matter coming before the Court. It must be determined first by the Courts before starting any proceedings. If the Court proceeds without jurisdiction, all proceedings no matter how well conducted becomes a nullity. It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal in the Supreme Court. However, it is important that issues of jurisdiction must be raised timeously and resolved first, before embarking on further proceedings UKWU VS BUNGE (1997) 8 NWLR PT 1006 PG.608, JERIC NIG. LTD VS UBN PLC (2000) 12 SC PT II PG.133, A – G LAGOS VS DOSUNMU (Supra), NNONYE VS ANYICHIE (2005) 2 NWLR PT. 910 PG. 623. PER NDUKWE-ANYANWU J.C.A.
WAYS OF RAISING AN OBJECTION TO THE JURISDICTION OF A COURT
An objection to the jurisdiction of the Court can be raised in a number of ways viz
(a) On the basis of the statement of claim.
(b) On the basis of evidence received.
(c) By motion supported by affidavit settling out the fact relied on.
(d) On the face of the Writ of Summons where appropriate as to the capacity in which the action was brought, or against who the action was brought, NNONYE VS ANYICHIE (Supra) NDIC VS CBN (2002) 7 NWLR PT 272 ARJAY LTD VS AIRLINE MANAGEMENT SUPPORT LTD (2003) 2 SCNS PG 148. PER NDUKWE-ANYANWU J.C.A.
WHETHER OR NOT A NOTICE OF APPEAL AND BRIEFS OF ARGUMENTS MUST BE SIGNED BY A COUNSEL
Onnoghen JSC (as he then was) held that from the above provision, it is clear that the person who is entitled to practice as a legal practitioner must have his name on the roll. It does not say his signature must be on the roll but his name. Section 24 of the LPA defines a “Legal Practitioner to be a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor either generally or for the purpose of any particular office proceeding. 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 on the roll otherwise he cannot engage in any form of legal practice in Nigeria.
Okafor Vs Nweke (Supra) captured the essence of what the LPA provided for. In this appeal, the Appellant as claimant in its amended statement of claim in the lower Court did not frank it’s process correctly. One can see a couple of names and on top of it is a signature. There was no indication as to which one of the names the signature belonged to. The Courts have frowned at this type of carelessness in a plethora of cases. See ONYEKWULUJE VS ANIMASHAUN (2019) LPELR – 46528 BRAITHWAITE VS SKYE BANK PLC (2012) LPELR 15532. In OKONKWO VS UBA PLC (2011) LPELR 23010 the Supreme Court per RHODES-VIVOR JSC in expantiating the law held that.
“In Civil Appeals, the Notice of Appeal and Briefs of argument shall be prepared and signed by a counsel. The only exception is where the party is a natural person, and insists on handling his appeal himself. Right of audience is only open to counsel and/or the party in the appeal. In the case of a corporation, the notice of appeal and brief shall be signed by counsel. The right of audience before the Court is restricted to counsel. This is so as corporate being and unnatural person, need someone learned in the law to handle its appeal, and that person can only be a legal practitioner”. PER NDUKWE-ANYANWU J.C.A.
UZO IFEYINWA NDUKWE-ANYANWU J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the the High Court of Ekiti State delivered on 28th day of March, 2017 by Akintayo J. in suit No. HAD/81/2015.
The appellant was the claimant in the lower Court. It claimed against the Respondent as defendant as follows:
a. A declaration that the plots 4, 5, 18 and 19 as contained in the layout of the family of HRM Oba Rufus Adeyemo Adejugbe, the Ewi of Ado EkitI lying, being and situate at Omisanjana, Ado Ekiti belongs exclusively to the claimant.
b. An order preventing the defendant or anybody whatsoever from using the land of the claimant situate, lying and being at Omisanjana, Ado Ekiti for road.
c. An order of perpetual injunction restraining the defendant, his agents, privies servants and Assigns from further committing any act of trespass on the claimant’s land which is lying, being and situate at Omisanjane, Ado Ekiti.
d. Special and general damages in the sum of N1,128,000.00 against the defendant for defendant’ act of trespass and destruction of the claimant’s fence as follows:
(i) Special damages – N128,000.00
(ii) General damages – N1millon
The Respondent as defendant counter claimed against the appellant as follows:
a. A DECLARATION that the road the Claimant want to block has been a thorough fare or public road for over 30years and should remain a public Road.
b. AN ORDER OF PERPETUAL INJUNCTION restraining the claimant, their Church members, their servants or privies from blocking the road.
c. GENERAL DAMAGES in the sum of One Million Naira (N1,000,000.00) for the embarrassment the claimant caused the Defendant by giving a false report of him to the Police and Ewi’s Palace that he brought thugs to scatter their gravel and destroyed the fence on the land.
Pleadings were exchanged and trial commenced after the pre-trial conference. The appellant as claimant called two witnesses and tendered six Exhibits. The respondent called four witnesses and tendered two Exhibits.
The appellant in the Court below claimed that the Respondent trespassed on his land. He had given in evidence that he bought 4 plots of land from the Adejugbe family and a receipt was issued to the Appellant dated 22nd day of June, 1976 Exhibit “A”.
The Appellant went into possession and surveyed the land see Exhibit “B” plan No. PAS/EK/240/2001 drawn by S. O. Daramola a Registered Surveyor. The Appellant claimed that all the while no one had disturbed his possession until the Respondent started using part of his land as access road thereby trespassing on his land.
To forestall further trespass, the Appellant erected a dwarf wall which it said the defendant and some thugs broke down and destroyed together with the gravel and sand on site. The photographs of these were taken as Exhibits C1 – C6.
The Appellant reported the Respondent to the Police and later sued him for trespass.
The Respondent on his part claimed that the road the Appellant is claiming as part of his land is an old road which had been in existence for over 30 years. The Respondent claimed that the road was not part of the Appellant’s land. The Respondent tendered his building plan Exhibit “D” and Echoes of the Throne Exhibit “E”. At the end of the trial, the trial Judge called for written addresses of both parties which they both filed. The trial Judge thereafter delivered his considered Judgment and dismissed the claim of the Appellant, while granting the counter claim of the Respondent, hence this appeal.
The Appellant being dissatisfied naturally filed its notice and 10 grounds of appeal on the 28th day of May, 2019. The Appellant also filed his amended Appellant’s brief on 28th day of May, 2019 but deemed properly filed and served on 10th day of July, 2019. In it, the Appellant articulated three issues for determination as follows:
i. Going by the evidence before the trial Court whether it was right in law to have dismissed the appellant’s claims and granted the respondent’s counter claim. (Ground 1, 2, 3, 4, 5, 6, 9 and 10.
ii Whether the learned trial judge was right when he refused the application to visit the locus in quo filed by the Appellant. (Ground 8).
iii Whether the learned trial judge was right in law to have delivered a single judgment despite the fact that respondent counter claimed. (Ground 8).
The Respondent in response filed its Respondent’s Brief on the 16th July, 2019. The Respondent raised a Preliminary Objection in his brief which he argued at pages 2 – 12 of his brief. The Appellant also filed his Reply on the 11th day of October, 2019.
The Respondent in his Preliminary Objection argued that the Appellant in this appeal is not a Juristic person as the name used is. “The Registered Trustees of Christ Apostolic Church Nigeria”. Counsel therefore, submitted that proper parties are not before the Court and thereby robs the Court of the necessary vires to adjudicate on this appeal see MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR PG. 341.
The Supreme Court has held in a plethora of cases that any defect in competence is fatal to any proceeding in Court and renders it a nullity.
The Respondent also submitted that the amended statement of 16th day of May, 2015 was not also properly signed by a legal practitioner. There are many names on the process and it is not clear who signed the process – the amended statement of claim, see EWUKOYA AND BUARI (2017) ALL FWLR PT. 881 PG.1099 – 1114. TANIMU VS. RABIU (2017) All FWLR PT. 900 PG.391 where the set Supreme Court per KEKERE – EKUN JSC stated succinctly. “… In any event, the stamp and seal of the Nigerian Bar Association cannot take the place of the actual signature of a legal practitioner on a document …. As held by this Court in BELLO SARAKIN YAKI (RTD) AND ANOR V. SENATOR ATIKU ABUBAKA BAGUDU & ORS (2015) ALL FWLR (PT.810) 1026, in keeping with the effort to weed out impostors and charlatans in the legal profession, the provisions reproduced above are directed at the legal practitioner to provide evidence of his qualification to practice law in Nigeria, in addition to his name being on the roll at the Supreme Court in Nigeria. It saves the time that would otherwise have been expanded in conducting a search at the Supreme Court in Nigeria. It saves the time that would otherwise have been expended in conducting a search at the Supreme Court to determine whether the legal practitioner is so qualified. It is thus a means of authenticating the claim of the signatory of a legal document to being legal practitioner whose name is on the roll. In effect, the mere presence of the stamp and seal of the Nigerian Bar Association on a document without linking it to the signature endorsed thereon, is not sufficient proof that the stamp and seal belong to the person who signed the document, or conversely that the signature that appears on the document belongs to the person whose stamp and seal is affixed thereto…”.
Following the above, counsel submitted that the signature on the process does not represent anybody amongst the names stated in the process. Even the NBA stamp and seal bearing the name of Adedayo Adewumi on the amended statement of claim does not suffice to foist jurisdiction on the Court. Counsel therefore, urged the Court to resolve these issues in favour of the Respondent and uphold the Preliminary Objection.
The Appellant in its Reply Brief argued as follows:
On the issue of jurisdiction raised by the respondent in his preliminary objection, we urge your Lordships to discountenance same because the issue was not raised by the respondent at the trial Court and if the respondent will raise it for the first time successfully before this Honourable Court. It must relate to a valid ground of appeal which is conspicuously missing in this appeal. Put it differently, the respondent can only raise the issue of jurisdiction for the first time on appeal by ground of appeal. We therefore respectfully urge your lordships to dismiss the preliminary objection. See African songs Ltd. V. Adegeye (2019) 2 NWLR part 1656 at 380 – 381 paras H – A, 381 paras. G – H.
The Respondent had raised a question of jurisdiction in its Preliminary Objection argued in his brief. He submitted that:
“Jurisdiction is the limits imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues, or to the persons between whom the issues are joined, or to the kind of relief sought. A-G Lagos State Vs. Dosunmu (1989) 3 NWLR PT. 111 PG. 552”.
It has been well settled that the question of jurisdiction is very fundamental to the adjudication of any matter coming before the Court. It must be determined first by the Courts before starting any proceedings. If the Court proceeds without jurisdiction, all proceedings no matter how well conducted becomes a nullity. It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal in the Supreme Court. However, it is important that issues of jurisdiction must be raised timeously and resolved first, before embarking on further proceedings UKWU VS BUNGE (1997) 8 NWLR PT 1006 PG.608, JERIC NIG. LTD VS UBN PLC (2000) 12 SC PT II PG.133, A – G LAGOS VS DOSUNMU (Supra), NNONYE VS ANYICHIE (2005) 2 NWLR PT. 910 PG. 623.
The Respondent had challenged the jurisdiction of this Court to adjudicate on this appeal. However, the Constitution has given the Court the power to take umbrage under Section 6 of the 1999 Constitution to consider the Plaintiff’s claim before it in order to decide, whether it has the jurisdiction to entertain it ADELEKE VS O.S.H.A. (2006) 16 NWLR PT 1006 PG.608; EGBEBU VS IGP(2006) 5 NWLR PT 972 PG. 146.
An objection to the jurisdiction of the Court can be raised in a number of ways viz
(a) On the basis of the statement of claim.
(b) On the basis of evidence received.
(c) By motion supported by affidavit settling out the fact relied on.
(d) On the face of the Writ of Summons where appropriate as to the capacity in which the action was brought, or against who the action was brought, NNONYE VS ANYICHIE (Supra) NDIC VS CBN (2002) 7 NWLR PT 272 ARJAY LTD VS AIRLINE MANAGEMENT SUPPORT LTD (2003) 2 SCNS PG 148.
The Respondent had argued that the Appellant was not a juristic person as envisaged by law. Instead of responding to the challenge raised by the Respondent, the Appellant in its reply urged the Court to discountenance this issue as it was not raised at the trial Court.
The Supreme Court has stated time without number that the question of jurisdiction is so radical and fundamental to the effective adjudication of any matter. In the case of PETRO JESSICA ENTERPRISES LTD VS LEVENTIS TECHNICAL CO LTD (1992) LPELR 2915 the Supreme Court per Belgore JSC (as he then was) held inter allia.
“The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to this Court – Supreme Court see also AGF VS AG OF LAGOS STATE (2017) LPELR 42769. EZE VS PDP AND ORS (2018) LPELR 44907”.
It therefore, means that the Respondent was right in challenging the jurisdiction to hear this matter in this Court. Learned counsel for the Respondent submitted that the Appellant was not a juristic person known to law, see Section 674(1) CAMA where it provided as follows:
“Application under Section 673 of the Act shall be in the form prescribed by the commission and shall state (a) the name of the proposed corporate body which must contain the words” Incorporated Trustees of …”
The Appellant in instituting this appeal named itself as the Registered Trustees of Christ Apostolic Church. I believe that when a challenge is made whether the Appellant is a juristic person, the only thing that the Appellant could do to establish its capacity is to tender as Exhibit its certificate of incorporation. It is pertinent to note that most body corporate neglect or fail to put the prefix” Incorporate Trustees of…”
The Appellant neither Exhibited its Certificate Registration nor proffer arguments that it is a body corporate registered under the Act. This failure is fatal to this case. If the Appellant does not prove to the satisfaction of the Court that it is a body Corporate Registered under the Act, it would be taken that the Appellant is not a juristic person, see T.R.T.C.L. VS SHERIFF where IBIYEYE of this Court (of blessed memory) stated inter allia.
“These two organization, although slightly different in their nomenclature have a common disability. The disability is that none of them is registered in accordance with Section 673 and 674 of 1990 Act and neither of them can sue and be sued in order to protect any proprietary interest of their organization”.
The virus that affected the above Appellants also affected the Appellant in this appeal. It did not have the prefix Incorporated Trustees… and did not show any iota of evidence that the Appellant was incorporated as a body corporate. This arm of the Preliminary Objection succeeds.
The other issue of jurisdiction canvassed by the Respondent was that the statement of claim was not signed properly as envisaged by the law. See Legal Practitioner Act Section 2(1) Cap 207 LFN 1990 which provides thus.
“Subject to the provision 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”.
Onnoghen JSC (as he then was) held that from the above provision, it is clear that the person who is entitled to practice as a legal practitioner must have his name on the roll. It does not say his signature must be on the roll but his name. Section 24 of the LPA defines a “Legal Practitioner to be a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor either generally or for the purpose of any particular office proceeding. 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 on the roll otherwise he cannot engage in any form of legal practice in Nigeria.
Okafor Vs Nweke (Supra) captured the essence of what the LPA provided for. In this appeal, the Appellant as claimant in its amended statement of claim in the lower Court did not frank it’s process correctly. One can see a couple of names and on top of it is a signature. There was no indication as to which one of the names the signature belonged to. The Courts have frowned at this type of carelessness in a plethora of cases. See ONYEKWULUJE VS ANIMASHAUN (2019) LPELR – 46528 BRAITHWAITE VS SKYE BANK PLC (2012) LPELR 15532. In OKONKWO VS UBA PLC (2011) LPELR 23010 the Supreme Court per RHODES-VIVOR JSC in expantiating the law held that.
“In Civil Appeals, the Notice of Appeal and Briefs of argument shall be prepared and signed by a counsel. The only exception is where the party is a natural person, and insists on handling his appeal himself. Right of audience is only open to counsel and/or the party in the appeal. In the case of a corporation, the notice of appeal and brief shall be signed by counsel. The right of audience before the Court is restricted to counsel. This is so as corporate being and unnatural person, need someone learned in the law to handle its appeal, and that person can only be a legal practitioner”.
This is the law, and the counsel to the Appellant failed to sign on his name as provided by the Section 2(1) of the LPA. The failure to indicate which of the counsel in the array of names did in fact sign the Amended Statement of Claim filed on 16th May, 2016.
This failure had impacted on the jurisdiction of the Court. It robbed the Court of the necessary vires to adjudicate on this appeal whose original process was signed by a person unknown to law.
There was only a signature without the name of the legal practitioner as was envisage by Section 2(1) of the LPA.
The Court therefore, lacked jurisdiction to adjudicate on this appeal as it is constituted.
The Preliminary Objection succeeds. The incompetent statement of claim is struck out. The proceedings in the lower Court was conducted without jurisdiction and therefore, a nullity.
This appeal lacks merit. It is dismissed. The judgment of the lower Court is a nullity. Cost to the Respondent is assessed at N100,000.
PAUL OBI ELECHI, J.C.A.: I agree.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to preview the draft of the lead judgment delivered by my learned brother U.I. Ndukwe-Anyanwu JCA and I agree entirely with the reasoning and conclusion reached therein.
In consequence, I equally dismiss the appeal as unmeritorious and make no order as to costs.
Appearances:
…For Appellant(s)
…For Respondent(s)
