SUNDAY AJAYI & ANOR v. JOSEPH OLASUPO OGUNWALE & ORS (2014)

SUNDAY AJAYI & ANOR v. JOSEPH OLASUPO OGUNWALE & ORS

(2014)LCN/7573(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of November, 2014

CA/AK/104/12

RATIO

COURT; JURISDICTION; WHEN IS A COURT SAID TO BE COMPETENT, THE EFFECT OF LACK OF JURISDICTION BY A COURT AND THE EFFECT OF ANY DEFECT IN THE WRIT OF SUMMONS AND STATEMENT OF CLAIM

It is the law that a Court is competent when the Court is properly constituted as regards members and qualification of members of the bench and no member is disqualified for one reason or the other, the subject matter of the case is within its jurisdiction; and there is no feature in the case which prevents the Court from exercising its jurisdiction and the case comes before the Court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All these requirements must co-exist conjunctively before jurisdiction can be exercised by the Court. See Madukolu v. Nkemdilim (1962) ALL NLR 567.

The issue of jurisdiction of Court is fundamental and crucial question of competence because if a Court has no jurisdiction to hear and determine a case the proceedings are a nullity. See Dapialong v. Dariye (2007) 8 NWLR (Pt 1036) 332.

The writ of summons and statement of claim are the foundation of the suit. Any defect in the writ of summons and statement of claim will render the entire suit incompetent and the trial Court would lack the required jurisdiction to entertain the suit. Any defect in the writ and statement of claim robs the Court of jurisdiction to entertain it. In the instant case, the learned trial judge rightly found that the writ of summons and statement of claim were incompetent. This is what he said:
“Only person who has his name on the roll of legal practitioner can act as a legal practitioner and can sign Court proceedings (sic). What we have in this case, is a firm named G. A. Adesina & Co. that signed the Court Process both writ and statement of claim for the plaintiff and which makes the two process writ of
Summon and Statement of Claim to be incompetent and liable to be struck out.” per. JAMES SHEHU ABIRIYI, J.C.A.

LEGAL PRACTITIONER ACT; WHEN IS A PERSON BE ENTITLED TO PRACTICE AS BARRISTER AND SOLICITOR IN NIGERIA

In addition, by Section 2 (1) of the Legal Practitioners Act, Cap 111 Laws of the Federation, 2004:
“A person shall be entitled to practice as barrister and Solicitors in Nigeria if and only if his name is on the roll”.
On the other hand Section 24 of the Legal Practitioners Act Cap.209 LFN 1990 provides thus:
“In this Act unless the con otherwise requires, the following expressions have the meaning hereby assigned to them respectively, in effect by virtue of section 24 of the Legal practitioners Act, a Legal Practitioner in Nigeria is a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor either generally or for the purposes of any particular office or proceedings”.
From the above Sections it is clear that a Law Firm is different and distinct from the legal practitioners. A law firm as a corporate and an inanimate object lack the capacity to practice law or file processes in our courts, the legal practitioner whose name has been enrolled is the one endowed with such capacity. per. MOJEED ADEKUNLE OWOADE J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMAD AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

1. SUNDAY AJAYI
2. AKANMU THOMAS
(For themselves and on behalf of all Members of Egbe Omo Ile Abodua of Abodua’s Compound, Osogbo except the Plaintiffs) Appellant(s)

AND

1. JOSEPH OLASUPO OGUNWALE
2. SEGUN AGBOOLA
3. TITILAYO OLADAPO
(For themselves and on behalf of all other Members of Malomo Aremu Oloba Family of Abodua’s Compound, Osogbo) Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State delivered on the 8th April 2011 in suit No: HOS /9/2003.

The Respondents as Plaintiffs in that Court instituted the suit against the Appellants as Defendants claiming for the following:
1. A declaration that the Plaintiffs are entitled to Statutory Right of Occupancy in respect ALL THAT piece or parcel of land measuring approximately 982.299 square metres with all the building thereon situate, lying and being at Abodua’s compound, Along Mackay Street Opposite All Saint Primary School, Osogbo in Olorunda Local Government Area of Osun State covered by Survey No OSS/0338/200/113 dated 28/7/2001 drawn and signed by G. O. O. Popoola (Licensed Surveyor).
2. An order directing the Defendants to render full account of all rents collected by the Defendants from the Tenants occupying the 5 rooms and 4 shops in the two buildings on part of the said piece or parcel of land from the January, 2000 till the date of judgment and to pay over forthwith to the Plaintiffs all such rents.
3. a (sic) sum of N100,000.00 (One hundred thousand naira) being special and general damages for the trespass committed (sic) and still being committed (sic) by the Defendants, their servants, agents and/or privies on part of the Plaintiffs’ said land and buildings.
4. An order of perpetual injunction to restrain the Defendants, their servants, agent and/or privies howsoever called from further disturbing or collecting rents from the Plaintiffs’ tenants, from tampering with the Plaintiffs’ right of use and control over the house and the 4 shops in dispute and from committing any further act of trespass on the Plaintiffs’ said land with the buildings thereon.

The Appellants counterclaimed for the following:
(a) Declaration for Statutory Right of Occupancy to all the parcels of lands and appurtenances in Abodua area including Abodua Compound, Osogbo which is surrounded by Balogun Agoro Compound, Osogbo, Oje Compound, Osogbo, Olobu Compound, Osogbo, Alabadi Compound, Osogbo, Olobado Compound, Osogbo, Olonkoro Stream, Osogbo and particularly all the houses now occupied by the Plaintiffs and their relatives and relations in the Compound known and called Abodua Compound, Osogbo.
(b) Determination of the customary tenancy of the Plaintiffs and all who claim through them.
(c) Forfeiture of the said customary tenancy of the Plaintiffs, their Agents or any other person or persons claiming through them or occupied by them as customary tenants of the Defendants.
(d) Possession of the said parcel of land and houses now in possession of the Plaintiffs and their respective families.
(e) An Account of rents received, and collected by the Plaintiffs so far from the tenants in the house and shops in dispute to the Defendants.
(f) Any other order or orders justifiable in this case as this honourable court may deem fit to make in the circumstances
(g) Substantial costs against the Plaintiffs, their agents and any person or persons claiming through them to the Defendants.

According to the Respondents they are members of Malomo Aremu Oloba family of Abodua Compound Osogbo, Osun State. The Appellants are members of Egbe Omo Ile Aboduwa’s Compound, Osogbo. That Ayowale, the great ancestor of the Respondents migrated from Oba Oke about 200 years ago to found and settle at Kaa Oba (Oba section) Abodua’s Compound, Osogbo. That the land in dispute forms a small part of the land originally granted to Awoyele and his people. That the land which was partitioned to Malomo at Abodua’s Compound, Osogbo after Awoyale’s death is approximately 982.299 square metres (excluding part thereof used for Mackay Street) and it is situate, lying and being at along Mackay Street Opposite All Saints Primary School, Abodua’s Compound Osogbo. That Malomo and his descendants including the Respondents have been exercising various acts of ownership on the piece or parcel of land such as farming or building thereon and letting part to tenants without let or hindrance from anybody; including the Appellants from one generation to the other until 2000. That the Appellants are now laying claim to building consisting of six rooms and a block of four shops on the left hand side of the Respondents’ land facing Mackay Street. That in 2002, the Appellants and some other members of Abodua Compound under the patronage of Egbe Omo Ile Aboduwa ganged up to claim ownership of the four shops. That the Appellants have also directed the tenants in the shops to stop paying their rents to the Respondents and the Appellants have been using force and threats to collect rents from the tenants without rendering any account to the Respondents’ protests. That the Respondents reported the incidents to the palace of the Ataoja of Osogbo where the ownership of the house and the shops were resolved in favour of the Respondents’ family by the representatives of Ataoja of Osogbo after both parties were heard and allowed to call their witnesses with a visit to the locus in quo. That the Appellants freely submitted themselves to the customary arbitration but they have refused to abide by the decision of Ataoja-In-Council confirming the Respondents’ family ownership of the shops and the house in dispute.

In defence and proof of their counterclaim, the Appellants stated that the Respondents are strangers in Abodua’s Compound. Neither Awoyale nor Malomo nor any other person from Oba Oke or any other place settled on any part or portion of the area known and called Abodua’s Compound, Osogbo in the reign of Oba Olarooye or any other Oba at all. There was no Awoyale nor Malomo nor Jenni from Oba Oke or anywhere or who was a warrior in Osogbo as claimed by the Plaintiffs. The Appellants inherited by succession the portion of land allocated to Abodua their ancestor by his brother, Balogun Agoro. The whole of the parcel of land which makes Abodua’s Compound Osogbo is in effective control and possession of the Baale (head) and principal members of the families of Abodua Compound. The Appellants do not know the exact area being claimed by the Respondents nor the particular house or shops they are claiming though a survey plan was pleaded it was not attached. Kolade and Malomo (ancestors of the Respondents) are strangers in the compound. There is no other distinct and separate compound in Osogbo which is one of the recognized and accepted compounds in Osogbo. Oba Olarooye never granted land in dispute within Abodua compound to one Awoyale and his people over 200 years ago. That Akanbi who was allotted the land which is now being wrongly claimed by the Respondents particularly by the 1st Respondent, had abandoned the said portion and left the compound several years ago. He had no children nor any relation to succeed him and inherit his property. Many years ago, members of the Abodua family pulled down the hut which Akanbi erected and allowed one madam Egundeji to rebuild it. That the Respondents are not related to Akanbi, That neither the Respondents nor any of their relations have right under native law and custom to inherit the property of Akanbi which had reverted to Abodua family. That the Respondents without the knowledge and consent of the Appellants wrongly collected the said rents hence the demand for repayments by the tenants in the house and four adjacent shops to the Appellants. The 1st Respondent was reported to the police who arrested him. It was the Appellants who allotted land to late madam Adisatu to build four shops. She died without any child hence the land reverted to Abodua’s family. The shops reverted to the head and principal members of Abodua compound, Osogbo after the death of Adisatu. Neither the Respondents nor any of their relation have rights to inherit the shops or any part of it because they are in no way related to the deceased allottee. Awoyele did not settle on any portion of Abodua compound, Osogbo instead it was Abodua family that allotted land to Awoyale on good behavior only to build his residential house now occupied by 1st Respondent. Awoyale was allowed to build only one house. The Respondents never partitioned any land in Abodua’s compound, Osogbo belongs to Abodua family and his descendants. Each family occupier in Abodua Compound is entitled to a portion of the land to build a house and no more. The Appellants did not invite any person or body of persons from the neighbouring compounds and even the chiefs of Ataoja palace to intervene in the dispute as it is an internal matter capable of amicable solution by dialogue which the Appellants had employed and the matter was amicably resolved and the 1st Respondent and Appellants and other members of Abodua family in attendance. The 1st Respondent was satisfied with the resolution in the meeting and parties resolved to withdraw the suit.

After hearing the cases of both parties and addresses of their counsel, the Lower Court dismissed the counterclaim of the Appellants and granted Respondents relief (two) 2 and part of relief 4. Dissatisfied with the decision, the Appellants have approached this Court by way of this appeal. The Notice of Appeal contains (twelve) 12 grounds of appeal from which the following six issues were condensed:
1. Whether the trial court can assume jurisdiction and make findings based on the incurable defective writ of summons and statement of claim which it also held to be incompetent and liable to be struck out.
(Formulated from grounds A & B)
2. Whether the trial court can grant perpetual injunction and consequential order after dismissing principal relief.
(Formulated from ground C & E)
3. Whether the trial court can grant perpetual injunction and consequential order on an unknown land.
(Formulated from grounds D)
4. Whether the trial Judge was not wrong to hold in view of the pleadings and evidence before him that the Defendants/Appellants counterclaim have not substantiated or established their claims.
(Formulated from grounds F)
5. Whether the trial Court properly evaluated the evidence led in proof of the pleading before arriving at the conclusion that the Respondents are in possession and gave a Judgment in part for the Respondents and dismissed Appellants claims.
(Formulated from grounds G & L)
6. Whether the Judgment of the trial court is clear, direct, precise and not perverse.
(Formulated from grounds H, I, J, & K)

The Respondents on their part presented the following issues for determination:
(1) Whether or not the trial court can assume jurisdiction and make findings based on the alleged incurable defective writ of summons and statement of claim which it also held to be incompetent and liable to be struck out?
(2) Whether or not the trial court can grant perpetual injunction and consequential order after dismissing principal relief.
(3) Whether the trial court can grant perpetual injunction and consequential order on an alleged unknown land.
(4) Whether the trial judge was wrong to hold in 4 view of pleadings and evidence before him that the Appellants counter claim have not been substantiated or established their claims.
(5) Whether or not the trial court properly evaluated the evidence led in proof of the pleading before arriving at the conclusion that the respondents are in possession and gave judgment in part for the respondents and dismissed Appellants’ claims.
(6) Whether by pleadings, documentary evidence tendered by both parties coupled with oral testimonies of the parties at the trial court to prove their respective claims, the judgment of the trial court can be faulted.

Arguing issue 1, it was submitted that the court has no jurisdiction to entertain a case commenced by an incurably defective originating process which the Court itself held was incompetent and liable to be struck out.

It was submitted that where there is no jurisdiction to hear and determine a matter everything done in such want of jurisdiction is a nullity. We were referred to Shelim v. Gobany (2009) ALL FWLR (Pt 496) 1864 at 1877.
We were referred to the ruling of the Lower Court to the effect that both the writ of summons and amended statement of claim were incompetent and liable to be struck out having been signed by G.A. Adesina & Co a Law firm. The Lower Court it was submitted wrongly proceeded to determine the suit on the merit based on an orbiter dicta of Ogbuagu JSC in Bello Ogundele & Anor v. Shittu Aigiri & Ano (2010) ALL FWLR (Pt 507) 1. It was submitted that the Supreme Court in the recent case of First Bank of Nigeria Plc v. Maiwada (2013) ALL FWLR (Pt 661) 1433 dismissed an appeal on the ground that the Court processes were signed by a Law Firm. We were referred also to Obi v. INEC (2007) ALL FWLR (Pt 378) 1159, Ajao v. Oyewusi (2008) ALL FWLR (Pt 432) 1119, Abang v. Oyong (2010) ALL FWLR (Pt 552) 1641 and Madukolu v. Nkemdilim (1962) 2 SCNJ 341.

It was submitted that once a Court has no jurisdiction to adjudicate on a matter even where it had done so, such adjudication will be adjudged a nullity by an Appellate Court. We were referred to F.R.I.N. v. Gold (2007) All FWLR (Pt.380) 1444 at 1456.

This Court was urged to hold that the Lower Court could not assume jurisdiction and make findings based on the incurable writ of summons and statement of claim which that Court itself held to be incompetent and liable to be struck out.

On issue 2, it was submitted that a Court cannot grant injunction and consequential order after dismissing relief for declaration of title. We were referred to Akinduro v. Alaya (2007) ALL FWLR (Pt 381) 1653 at 1668 B – D. It was pointed out that the Lower Court dismissed relief 1 of the Respondents’ claim but proceeded to grant relief 2 and part of relief 4. It was submitted that where the Court refuses to grant the relief for injunction, it is not proper to make an order of perpetual injunction or any other ancillary relief against the Appellants. It was submitted that once the principal relief is dismissed no relief incidental to it can be granted. We were referred to UBA v. Etiaba (2010) ALL FWLR (Pt.548) 805.

On issue 3, it was submitted that a Court cannot grant a perpetual injunction and consequential order on an unknown land. Reliance was placed on Ansa v. Ishie (2005) ALL FWLR (Pt 276) 651. We were referred to paragraph 8 (4) of the Statement of Defence and Counterclaim at page 45 of the record of appeal in which the Appellants averred that they did not know the exact area claimed by the Respondents or the particular house or shops claimed and that though a survey plan was pleaded it was not attached to the statement of claim. That the survey plan was not attached to the list of exhibits and was not tendered in evidence. That this was the reason why relief 1 was not granted but the Lower Court proceeded to grant relief 2 and part of relief 4.

It was reiterated that the Court cannot make an order of declaration or injunction where the Plaintiffs failed to describe the area in dispute. We were referred to Mafundi v. Gado (2006) ALL FWLR (Pt 292) 157.
It was submitted that the trial court cannot grant perpetual injunction and consequential order on an unidentified building or an unknown land when the location/description is in dispute.

On issue 4, it was submitted that in a claim for declaration of title to land based on traditional evidence. The Plaintiff must plead and lead sufficient evidence to establish the following:
(1) Who founded the land in dispute
(2) How the land was founded; and
(3) The particulars of the intervening owners through whom he claims
We were referred to Nwabude v. Ugbodu (2011) ALL FWLR (pt 604) 26.

It was submitted that DW3, Akanmu Thomas testified as to how the Abodua compound came into existence and was not contradicted under cross-examination. That the DW1 also testified that the Respondent and himself are from the same family and that they begged for land from the Appellants’ ancestors.

The Court was referred to the reasons why the Lower Court held that it was not satisfied with the description of the land claimed by the Counterclaimants at page 163 of the record of appeal which were:
a) Failure to tender a survey plan.
b) The land claimed by the Counterclaimant seemed larger than the one claimed by the Respondents and Appellants asserted that they did not know the land as per the Respondents’ claim.

It was submitted that the need to prove the identity of the land in dispute with certainty will arise where the defendant joins issue with the plaintiff on the question of the identity of the land in dispute. We were referred to Olokunde v. Ademiloyo (2013) ALL FWLR (Pt 658) 947 at 963 – 964 and Anyanwu v. Uzowuaka (2009) ALL FWLR (Pt 499) 411.

The identity of the land in this case, it was submitted, is not in dispute and the Respondents did not know the identity of the land claimed by the Appellants.

It was submitted that evidence that is neither attacked nor successfully challenged is deemed admitted and the Court can safely rely on the evidence in the just determination of a case. We were referred to Governor of Zamfara State v. Gyalange (2013) ALL FWLR (Pt.658) 821 at 841. The Respondents, it was submitted did not challenge the evidence of the Appellants on the issue of location as stated in the counterclaim.

The trial court at page 163 – 164, it was pointed out, held that the Appellants stated that portion of the land claimed by the Appellants had been parted with.
It was submitted that there is no rule of practice that forbade the making of a declaration even when some of the persons interested in the subject matter were not before the Court. We were referred to Sapo v. Sunmonu (2010) ALL FWLR (Pt.531) 1408.

It was submitted that the Appellants claimed against the Respondents alone and not against any other person to whom the Appellants granted land. Therefore Judgment cannot be taken against any other person except the Plaintiffs/Respondents.

It was submitted that there is uncontroverted evidence before the Court to show that the relationship between the Plaintiffs/ Respondents and the Defendants/Appellants is that of landlord and tenant. We were referred to the pleadings and evidence of DW1.

It was submitted that there was no evidence on record that the Respondent put up any case whatsoever to warrant consideration by the Court in its judgment. Therefore the Appellants only had to make a minimal proof. We were referred to Okoye v. Nwulu (1988) 2 NWLR (Pt.76) 359 and Agagu v. Dawodu (1990) 7 NWLR (Pt.160) 56.

We were urged to resolve this issue in favour of the Appellants.

We were referred to some contradictions in the pleadings of the Respondents.

Issue 5, it was submitted that it is incumbent on the Court to evaluate the admissible evidence in proof of the issues joined in the pleadings and that the Court of Appeal may do that which the trial court ought to have done under section 15 of the C. A. Act. We were urged to involve the powers under Section 15 of the Court Appeal Act to evaluate the evidence contained in the record of appeal and enter judgment for the Appellants on the admitted facts in the pleadings.

It was submitted that even though the Lower Court ordered the Appellants to render account of the all rents collected in the shops and building it still held that the Appellants were not in possession. If they were not in possession how then would the Court order them to render account, asked Appellant’ counsel.

On issue 6, it was submitted that the judgment of the Lower Court is not clear and direct. That at page 164 the trial court granted relief 3 of the respondents’ claim but at page 165 dismissed reliefs 1 and 3. Also at page 162 the trial court dismissed relief 2 of the Respondents’ claim but at page 165, the Court granted relief 2 of the Respondents’ claim. Finally that the trial court granted part of relief 4 but the part d that relief granted is not specified and so is not clear.

The Court was urged to resolve this issue in favour of the Appellants.

Arguing issue 1, learned counsel for the Respondent submitted that on the authority of Feed and Food Farms (Nig) Ltd v. NNPC (2009) 6 MJSC (Pt.1) 120 at 140 – 141 as per Niki Tobi JSC the trial court was in order to take in the alternative the case on the merits after coming to the conclusion that it had no jurisdiction to hear the matter. That apart from this the defective processes cited by Appellants’ counsel were in respect of notices of appeal. But the processes complained about in this case are the writ of summons and statement of claim. It was further submitted that if there was any irregularity the Appellants had waived it.

On issue 2, it was submitted that a claim for trespass can succeed even where a claim for declaration of title fails. We were referred to Osafile & Ors v. Odixanor (1994) SCNJ 20.

It was further submitted that in a claim for declaration of title, even if the Plaintiff’s claim fails, title does not automatically confer on the defendant without a counterclaim. Thus the case of Akinduro v. Alaya is inapplicable to this case. We were referred to Akwaku v. Yongo (2002) 4 MJSC 137 at 160.

The Appellants, it was submitted failed to prove their counterclaim. They failed to tender a survey plan in support of the location, boundary and identity of the land claimed with certainty. This is therefore fatal to their counterclaim. We were referred to Salanu v. Gbodoolu (1997) 4 SCNJ 196 at 203.

It was submitted that by paragraph 8 (b) of the Statement of Defence and Counterclaim and paragraph 12 of the Statement on oath of DW2, Abodua had granted part of this land upon which a declaration is sought to his war boys. Also by paragraph 7 (m) of the statement of defence and counterclaim, the portions of land claimed by the Appellant had been granted to C.M.S now Anglican Communion on which it had built schools, mission house, Bishop’s Court and residential houses. Furthermore by paragraph 10 (m) of the statement on oath of DW3, Akannu Thomas, the land now claimed by the Appellants had been partitioned sixty years ago among the families that were entitled.

Therefore the question is whether the Court can grant declaration of title over such parcel of land, the Appellants’ family has parted with, granted to third parties and partitioned. The answer, he said was No.

It was submitted that the trial court was in order when it granted perpetual injunction against the Appellants based on the facts before it.

On issue 3, it was submitted that the trial court did not grant perpetual injunction in respect of unknown land. We were referred to paragraph 12 of the amended statement of claim and Exhibits P1 – P8 tendered by the Respondents.

On issue 4, it was submitted that the Respondents from paragraph 6 to 14 of the Amended Statement of Claim, stated that their great ancestor Awoyale migrated from Oba Oke about 200 years ago and settled at Kaa Oba (Oba Section) of Abodua’s compound, Osogbo. That the Respondents pleaded and led evidence on who founded the land and traced the history to the present Respondents including intervening owners through whom they claim at page 35 of the record and written statement on oath of the 1s Respondent at page 51 to 59 of the record of appeal.

It was submitted that the Respondents established title by traditional evidence.
Evidence of DW1 that principal members of Abodua’s compound allotted land to Respondents forefathers is fallacious and misleading. The Court was urged to disregard that piece of evidence – as DW1 has an interest to serve.
It was submitted that the Respondents neither in the pleadings nor evidence nowhere admitted being tenants in Abodua compound, Osogbo.

On issue 5, It was submitted that all the evidence adduced was considered before the judgment. That evidence was duly evaluated and that every judge has his style of writing judgment. We were referred to Awopetu v. State (2002) 3 MJSC 141 at 150 – 151 and Adamu v. State (1991) 6 SCNJ 33 at 40.

On issue 6, arguments in respect of issues 1 to 5 were adopted.

It was submitted that by the pleadings, documentary evidence tendered by both parties, coupled with oral testimonies of the parties at the trial court to prove their respective claims, the judgment of the trial court cannot be faulted.

Despite the above finding of the trial court it went ahead to determine the suit on the merit and entered judgment in favour of the Plaintiffs/Respondents in part. With respect to learned trial Judge it had no jurisdiction to do so. I do not agree with learned counsel for the Respondents that the defect in the processes was a mere irregularity which can be waived. It is a defect which goes to the jurisdiction of the Court. Learned counsel for the Respondent also is wrong to argue that this type of defect only affects notices of appeal before Appellate Courts. Just as the notice of appeal in the appellate courts is the foundation of the appeal so is the writ and statement of claim the foundation of the suit at the trial court.

Therefore any defect in the writ and statement of claim goes to the jurisdiction of the Court. Failure to commence the suit with a valid writ and statement of claim goes to the root of the action since the condition precedent to the exercise of the Court jurisdiction was not met to duly place the suit before the trial court. See Maikida v. Ogunmola (2006) SC 147.

Issue 1, is therefore resolved in favour of the appellants.

The writ of summons and amended statement of claim having not been signed by a person known to law are hereby struck out.

The judgment of the High Court of Osun State in suit No: HOS/9/2003 delivered on the 8th April 2011 is hereby set aside.

Appellant is awarded N30,000 (thirty thousand naira only) costs to be paid by the Respondents.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the advantage of reading before today the judgment just delivered by my learned brother James Shehu Abiriyi, JCA. I am in agreement with his reasoning and conclusion that the appeal be allowed. I too allow the appeal. In addition, by Section 2 (1) of the Legal Practitioners Act, Cap 111 Laws of the Federation, 2004:
“A person shall be entitled to practice as barrister and Solicitors in Nigeria if and only if his name is on the roll”.
On the other hand Section 24 of the Legal Practitioners Act Cap.209 LFN 1990 provides thus:
“In this Act unless the con otherwise requires, the following expressions have the meaning hereby assigned to them respectively, in effect by virtue of section 24 of the Legal practitioners Act, a Legal Practitioner in Nigeria is a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor either generally or for the purposes of any particular office or proceedings”.
From the above Sections it is clear that a Law Firm is different and distinct from the legal practitioners. A law firm as a corporate and an inanimate object lack the capacity to practice law or file processes in our courts, the legal practitioner whose name has been enrolled is the one endowed with such capacity.

The effect of the signing of an originating process by a law firm is that the originating process is incompetent, fundamentally defective and legally non existent. Consequently the suit commenced by such originating process is incompetent ab-initio. It was dead at the point of filing.
In the instant case, the Plaintiff Writ of Summons and Amended Statement of Claim issued by G.A. Adesina & Co did not come before the court initiated by due process of law and upon fulfillment of a condition precedent to the exercise of jurisdiction. Therefore the said processes signed by a law firm are incompetent, null and void. Obviously, the learned trial judge had no jurisdiction to adjudicate on these incompetent processes. See Okafor & Ors v. Nweke & Ors (2007) 10 NWLR (Pt.1043) 521; Amos Oketade V Mrs. Olayinka Adewunmi & 4 Ors (2010) 8 NWLR (Pt.1195) 63; Alao V ACB Ltd (2000) 6 SC (Pt.1) 27 at 28; FBN Plc & Ors v. Maiwada & Ors (2012) LPELR 9713 (SC).

The Writ of Summons and Amended Statement of Claim in Suit No.:HOS/9/2003 is also hereby struck out for been incompetent.
I abide by the consequential order(s) made therein.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: Having read in draft the leading Judgment of Abiriyi, JCA, in this appeal, I think the appeal can summarily be determined on the Issue No. 1 as raised by both the Appellants and Respondents. It is the Issue that questions the competence of the suit on the basis of the fact that it was not properly signed by a legal practitioner known to Law or by a party to the action.
The Writ of Summons and statement of claim were signed by a firm of Legal Practitioners to Wit – “G. A. Adesina & Co.”
The trial court so found and correctly appreciated the fact/law that it was liable to be struck out as only a person who has his name on the roll of Legal Practitioners can act as a legal practitioner and can sign court processes.
That is correct.
To have turned sommersault to hold the same violation as a curable irregularity is wrong and against the State of the law as it is presently in Nigeria.
See (1) Nweke vs Okafor; (2) Braithwaite vs Skye Bank (Plc) NWLR Pt.1346, page 1 @ 22. (3) Maikida vs Ogunmola (2006) SC 147. The Court had no jurisdiction in the matter.

In this over trodden – path of the law, I have no hesitation in agreeing with my Lord, Abiriyi, JCA; that the suit No.HOS/9/2003 was, from inception, an incompetent suit on the basis of the defect in the originating process thereof.
The Judgment rendered pursuant thereto on the 8th April 2011 has no substratum. It rested on a quick sand and the terra not firm. The collapsible pedestal cannot carry it and it is accordingly ordered to be set aside as it was heard and was delivered without jurisdiction.
I order as in the Leading Judgment.

Appearances

Olugbenga Falade Esq.For Appellant

AND

Rufus O. Ewuola Esq.For Respondent