ADEOSUN & ORS v LANIYONU

ADEOSUN & ORS v LANIYONU


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON FRIDAY, 19TH MAY, 2017


Appeal No: CA/I/100/2013
CITATION:

Before Their Lordships:

MONICA BOLNA’AN DONGBAN-MENSEM, JCA

MODUPE FASANMI, JCA

CHINWE EUGENIA IYIZOBA, JCA


BETWEEN

CHIEF A. O. ADEOSUN
ALHAJI RASAKI IBRAHIM
SAMUEL ALAKE (FOR THEMSELVES AND ON BEHALF OF ODE-OLO MARKET TRADERS ASSOCIATION)

(APPELLANTS)

AND

MR. GBOLAHAN LANIYONU (FOR HIMSELF AND ON BEHALF OF MRS LETICIA LANIYONU)

(RESPONDENT)


PRONOUNCEMENTS


A. PRACTICE AND PROCEDURE
1. Signing of Court Processes – When the issue of signing of legal processes can be raised

Whether the issue of signing of legal processes can be raised at any time

“It is thus obvious that the cases cited by Mr. Olatunji and his views are inapplicable because even though there are similar provisions in the Rules of Courts, the issue have been provided for in the Legal Practitioners Act is not merely a procedural matter. Further, being a jurisdictional matter, it can be raised at any stage of the proceedings, even in the Supreme Court. Many cases which had been concluded in the Court of first instance have been set aside as nullities even in the Supreme Court because originating processes were signed by a law firm. The issue is thus not a mere technicality as argued by learned counsel for the Appellant.” Per IYIZOBA, JCA read in context

2. Signing of Court Processes – Proper signing of legal processes

Proper person to sign a legal process/effect of legal documents signed/franked by a law firm

“I find it hard to believe that there is a legal practitioner in Nigeria today who is not conversant with the long line of authorities handed down by the Apex Court and its attitude to the signing of originating processes by law firms. The knowledge of the full facts of the case of OKAFOR V NWEKE as the fons et origo of this entire saga is the beginning wisdom for legal practitioners in Nigeria. Yet it is obvious from the fact that Mr. Olatunji did not even get the name right that his knowledge in this notorious area of our legal discourse is very limited. I do not intend to go into any lengthy discussion on this matter as so much has been written and so many judgments delivered by both this Court and the Apex Court that it is now quite tedious.

The appropriate point to start however is by referring to the case of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341. It is the locus classicus for the trite principle that for a Court to be competent to assume jurisdiction three conditions must be satisfied:

1. The Court must be properly constituted as regards number and qualification of members of the bench.
2. The subject matter of the case must be within the jurisdiction of the Court.

3. The case must come before the Court initiated by due process of law and upon fulfillment of all conditions precedent to the exercise of jurisdiction.
If a case before a Court is not initiated by due process of law and upon fulfillment of any condition precedent to the exercise of its jurisdiction, the Court has no jurisdiction to entertain the matter. Section 2(1) of the Legal Practitioners Act Cap. 207, Laws of the Federation, 2004 provides as follows:

“Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the roll.”
?Section 24 of the Act defines a legal practitioner thus:

“Legal Practitioner means 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.”

The effect of the above provisions which are not rules of Court but statutory is that only legal practitioners whose names are enrolled in the Register of Legal practitioners in the Supreme Court of Nigeria are entitled to practice law in Nigeria. All Court processes must therefore be signed by such legal practitioners whose names are so registered. Failure to comply means that a condition precedent for the Court to assume jurisdiction has not been complied and thus the Court is deprived of jurisdiction to hear the suit.

It is now well established by the above Statute and a plethora of authorities that a Court process can only be signed by a legal practitioner and that whenever a Court process is signed by a law firm, it renders the process incompetent and is bound to be struck down. If the process is an originating process, it deprives the Court of jurisdiction to entertain the matter. See the following cases:

REGISTERED TRUSTEES, THE APOSTOLIC CHURCH V. R. AKINDELE (1967) NMLR 263; OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 521; SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR (PT. 1252) 317; BRAITHWAITE V. SKYE BANK PLC. (2012) 12 SC (PT. 1) 1; ALAWIYE V. OGUNSANYA (2012) LPELR-19661(SC); F.B.N. PLC VS. MAIWADA (2013) 5 NWLR (PT. 1348) 444 @483 F-G; HAMZAT V. SANNI & ORS (2015) LPELR-24302(SC).” Per IYIZOBA, JCA read in context


LEAD JUDGMENT DELIVERED BY IYIZOBA, JCA


This is an appeal against the judgment of the High Court of Oyo State Ibadan delivered on the 25th day of January, 2012 in Suit No: I/408/1999 Coram Olaifa J. wherein the claims of the Appellants were dismissed. The Appellants who were the 1st – 4th Claimants at the lower Court commenced this suit for themselves and on behalf of Ode-Olo Market Traders Association against the Respondent as defendant by a writ of summons dated 11th day of June, 1999 signed by Akin Aiyedun & Co claiming as follows:

1. Declaration of entitlement to the issuance of Statutory Right of Occupancy of the pieces or/and parcel of land situate at Ode-Olo, Ibadan more particularly known as Ode-Olo Market, Ibadan.

2. The sum of Ten Million (N10 Million) being special and general damages for trespass committed by the Defendant on the said piece of land on 5/3/99 which trespass still continues.

3. Perpetual injunction restraining the defendant, his servants, agents or any one claiming through or under him from further trespass on the said parcel of land.

The Claimants amended their Statement of Claim several times before finally settling for the one dated 15/10/03 and filed on the 28/10/03. The Defendant also filed his Statement of Defence on 29/10/99 and due to the series of amendments of the Statement of Claim filed by the Claimants also amended his Statement of Defence severally and finally also settled for the Statement of Defence dated 16/6/09 and filed on the 7/7/09.

FACTS:

The Appellants’ case is that sequel to the incessant flood disasters in Ibadan which devastated and destroyed lives and properties, the Oyo State Government acquired Lands on both sides of Ogupa River which acquisition was published in Gazette No. 44 Volume 2 of 27/10/77. The Oyo State Environmental Protection Commission Agency then put the Ibadan North Local Government on the land for public utility (Market) purposes in 1992. Ibadan North Local Government then allocated the land to the Claimants for development and business purposes . The Claimants/Appellants averred that they were in undisturbed possession of their respective portions, developed them to shops, stalls and stores in which they peacefully carried on their respective trades. However, on the 5th day of March, 1999, the Respondent aided by hoodlums, forcibly took over and destroyed the shops, stalls and stores thereon while some valuable items were carted away there from and others destroyed or/and damaged, hence the institution of this suit.

The Defendant’s case however is that the land in dispute belonged to his father Chief J. O. Laniyonu. He claimed that the Oyo State Government acquired some part of the land for canalization of Ogunpa River after the floods that ravaged Ibadan City. The set back to the Ogunpa Stream as of 1977 when the acquisition notice No. 44 of 27/1077 was published was 50 feet or 15 meters measured from the center of the stream on either side of the stream. He contended that the 1977 acquisition by Oyo State Government affected just a portion of his Father’s land. When therefore he noticed some trespassers on his land who claimed to have derived their interest on the land from the Ibadan North Local Government, he instituted Suit No.1/236/96: GBOLAHAN LANIYONU & ORS VS. IBADAN NORTH LOCAL GOVERNMENT & 2 ORS.

Eventually, the suit was amicably resolved and terms of settlement agreed upon and entered as the judgment of the Court on 1/3/99. He claimed that a warrant of possession was issued and subsequently executed by the Court bailiffs based on the terms of settlement. The Defendant contended that the Claimants who were mere allottees traced the ownership of the property in dispute to Ibadan North Local Government and yet the Local Government Council was not made a party in the suit. After hearing and considering the evidence led by the parties, the trial Court dismissed the claims of the Claimants.

Dissatisfied with the judgment of the Court, the Claimants/Appellants appealed by Notice of Appeal dated and filed on 18/04/12 which was subsequently amended. From the three grounds of appeal in the Amended Notice of Appeal dated 27/04/16 and filed on 28/04/16, the Appellants distilled three issues for determination as follows:

1. Was the learned trial judge right in holding that the acquisition extent was 25 meters and not between 22.5 meters and 57.30 meters from the stream?

2. Did the consent judgment give the defendant right of entry into the already acquired land which includes the land in dispute?

3. Whether or not the learned trial judge was right in dismissing the plaintiffs claim for damages for trespass.

The Respondents filed a Notice of Preliminary Objection on the grounds that:

1. The Writ of Summons dated 10th of June, 1999 is incompetent.
2. The Writ of Summons was signed by Akin Aiyedun & Co.

3. By the provision of Section 24 of the Legal Practitioners Act Akin Aiyedun & Co is not a legal practitioner called to the Nigeria Bar.

In case the preliminary objection was overruled, learned counsel formulated the following three issues for determination:

1. Whether the lower Court was right in dismissing the claims of the Appellants for declaration, damages and trespass

2. Whether Exhibit 3a (the consent judgment) binds the Appellants who are privies of Ibadan North Local Government

3. Whether Exhibit 3b gives the Respondent the right to enter the land in dispute

In accordance with the usual practice, I shall consider the preliminary objection and if necessary go on to the issues distilled by the parties for determination.

PRELIMINARY OBJECTION:

RESPONDENTS’ ARGUMENTS:

Learned counsel for the Respondents Kehinde Olawunmi Esq on the Preliminary objection submitted that the writ of summons dated the 10th day of June, 1999 at page 2 of the Record and the Statement of Claim dated 11/06/99 at page 4 of the Record were signed by Akin Aiyedun & Co. Counsel submitted relying on the case of SLB Consortium Ltd VS. N.N.P.C. (2011) ALL FWLR (PT. 583) 1902 @1911DE that Akin Aiyedun & Co is not a legal practitioner recognized by Section 24 of the Legal Practitioners Act and competent to sign originating processes. Learned counsel submitted that Section 24 of the Legal Practitioners Act defines a legal practitioner as a person entitled in accordance with the provisions of the Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings. Furthermore, that Section 2 (1) of the Legal Practitioners Act provides that a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the Roll. Counsel relying on EMMANUEL OKAFOR & ORS VS AUGUSTINE NWEKE (2007) ALL FWLR PT 368 @ 1016 submitted that Akin Aiyedun & Co is a law firm and not a legal practitioner within the contemplation of Sections 2 (1) and 24 of the Legal Practitioners Act and cannot legally sign and or file any process in Court. Counsel submitted that the writ of summons dated 10th June, 1999 on pages 1 and 2 of the record of appeal and the further amended statement of claim which were not signed by a legal practitioner known to law are incompetent and ought to be struck out. He urged us to hold that the proceedings conducted based on the incompetent processes are null and void, to uphold the preliminary objection and to strike out this appeal for want of jurisdiction.

APPELLANTS’ ARGUMENTS:

The reply to the preliminary objection is in the Appellants’ Reply brief dated 02/03/17 and filed on 10/03/17. Therein, his counsel Lawrence Olatunji Esq submitted that the failure to comply with relevant provisions of the law will not render the proceedings a nullity. He opined that the Supreme Court settled the matter when it held that “any non-compliance with any rule of Court is prima face an irregularity and not a ground for nullity unless such non-compliance amounts to a denial of natural Justice”. He cited in support the case of FAMFA v. AGF (2003) 16 NSCQR PG 46 AT 58-59. Learned counsel submitted that the Respondent will not in any way be prejudiced or suffer any denial of justice if this appeal is taken on its merit. Counsel cited the case of EKPUK v. OKON (2002) FWLR PART 84 PG 145 AT NO 163 where it was held:
“Rules of Court are made to help the Court in its primary duty and objective, namely to do justice to the parties by deciding on the merit of the case. These rules are handmaid to justice and inflexibility of the rules will only serve to render justice grotesque. It will be undesirable to give effect to rules which will merely enable one party to score not a victory on the merit, but a technical knockout at the expense of a hearing on the merit.”

Counsel submitted that in the instant matter, the purported defect in the Writ of Summons amounts to non-compliance with Rules of Court. He opined that Rules of Court are meant to assist the Court to do justice on the merit and should not be allowed to constitute a clog in the wheel of justice in this matter. Counsel cited the case of OKAFOR v. ETO sic (NWEKE) (2007) 29 NSCQR PG 467 and submitted that the Supreme Court held the processes filed in the name of JHC OKOLO SAN & CO incompetent for failure to comply with the rule of Court similar to the provision of Order 5 Rule 1 of Oyo State High Court (Civil Procedure) Rules 1988. He submitted that the judgment does not derogate from the earlier decisions of the Court in the cases of FAMFA v AGF (SUPRA) AND BROAD BANK v OLAYIWOLA (SUPRA) because the circumstances of OKAFOR v ETO sic (NWEKE) are different from the other cases. He argued that in OKAFOR v.ETO’S sic (NWEKE’S) CASE (SUPRA) the mistake or failure to comply with the rule of Court could be corrected by filing another process and the substance of the matter would not be affected in so doing. The Court would still be able to do justice on the merit in the case. But that in the other cases, the chance to re-file the processes under consideration were already foreclosed and the Courts in its quest to do substantial justice considered the circumstances of the cases in reaching its decisions. Counsel submitted that in the instant case, trial had been concluded and judgment delivered. He urged us not to apply the decision in OKAFOR v. ETO sic (NWEKE) (SUPRA). He cited the case of C & C CONSTRUCTION CO & ANOR VS OKHAI (2003) 16 PG 348 AT 346 where the Supreme Court on trials generally observed:

“The purpose of trial in the Court is essentially to establish the justice of a case based primarily on the weight and substantiality of the matter as soon as possible. I fail to see how a Court imbued with all responsibility to administer justice should assume a toga of re-actionary attitude in respect of a matter that was instituted in 1964, that is 19 years ago and to seek refuge or solace in the situational premises that presented itself by wringing its hand in desperation and laconically send such a case for trial anew….”

Counsel submitted that in this appeal, the Respondent is not even asking that the matter be sent back for trial anew but for total nullification. He submitted that the judicial system is discredited when it is bogged down by technicalities and at all times the tendency toward technicality should be eschewed and the determination to do substantial justice should remain the preferred option of the Honourable Court.

He urged us to disregard the preliminary objection as mere technicality which should have been raised at the time the Court would be in the position to correct the mistake as the Supreme Court did in the case of OKAFOR v. ETO sic (NWEKE) (SUPRA).

RESOLUTION:

The Appellants’ reaction to the preliminary objection as contained in the Reply brief was filed by his counsel Mr. Olatunji on the 10th of March, 2017. I find it hard to believe that there is a legal practitioner in Nigeria today who is not conversant with the long line of authorities handed down by the Apex Court and its attitude to the signing of originating processes by law firms. The knowledge of the full facts of the case of OKAFOR V NWEKE as the fons et origo of this entire saga is the beginning wisdom for legal practitioners in Nigeria. Yet it is obvious from the fact that Mr. Olatunji did not even get the name right that his knowledge in this notorious area of our legal discourse is very limited. I do not intend to go into any lengthy discussion on this matter as so much has been written and so many judgments delivered by both this Court and the Apex Court that it is now quite tedious.

The appropriate point to start however is by referring to the case of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341. It is the locus classicus for the trite principle that for a Court to be competent to assume jurisdiction three conditions must be satisfied:

1. The Court must be properly constituted as regards number and qualification of members of the bench.
2. The subject matter of the case must be within the jurisdiction of the Court.
3. The case must come before the Court initiated by due process of law and upon fulfillment of all conditions precedent to the exercise of jurisdiction.

If a case before a Court is not initiated by due process of law and upon fulfillment of any condition precedent to the exercise of its jurisdiction, the Court has no jurisdiction to entertain the matter. Section 2(1) of the Legal Practitioners Act Cap. 207, Laws of the Federation, 2004 provides as follows:

“Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the roll.”

Section 24 of the Act defines a legal practitioner thus:

“Legal Practitioner means 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.”
The effect of the above provisions which are not rules of Court but statutory is that only legal practitioners whose names are enrolled in the Register of Legal practitioners in the Supreme Court of Nigeria are entitled to practice law in Nigeria. All Court processes must therefore be signed by such legal practitioners whose names are so registered. Failure to comply means that a condition precedent for the Court to assume jurisdiction has not been complied and thus the Court is deprived of jurisdiction to hear the suit.

It is now well established by the above Statute and a plethora of authorities that a Court process can only be signed by a legal practitioner and that whenever a Court process is signed by a law firm, it renders the process incompetent and is bound to be struck down. If the process is an originating process, it deprives the Court of jurisdiction to entertain the matter. See the following cases: REGISTERED TRUSTEES, THE APOSTOLIC CHURCH V. R. AKINDELE (1967) NMLR 263; OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 521; SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR (PT. 1252) 317; BRAITHWAITE V. SKYE BANK PLC. (2012) 12 SC (PT. 1) 1; ALAWIYE V. OGUNSANYA (2012) LPELR-19661(SC); F.B.N. PLC VS. MAIWADA (2013) 5 NWLR (PT. 1348) 444 @483 F-G; HAMZAT V. SANNI & ORS (2015) LPELR-24302(SC) .

It is thus obvious that the cases cited by Mr. Olatunji and his views are inapplicable because even though there are similar provisions in the Rules of Courts, the issue have been provided for in the Legal Practitioners Act is not merely a procedural matter. Further, being a jurisdictional matter, it can be raised at any stage of the proceedings, even in the Supreme Court. Many cases which had been concluded in the Court of first instance have been set aside as nullities even in the Supreme Court because originating processes were signed by a law firm. The issue is thus not a mere technicality as argued by learned counsel for the Appellant.

There is consequently merit in the preliminary objection and it is hereby upheld. Having upheld the preliminary objection, it is unnecessary and needless to consider the issues formulated for the determination of the appeal. The writ of summons dated the 10th day of June, 1999 at page 2 of the Record and the Statement of Claim dated 11/06/99 at page 4 of the Record having been signed by Akin Aiyedun & Co a non legal practitioner are incompetent, null and void. The lower Court lacked jurisdiction to entertain the suit. This Court also lacks the jurisdiction to entertain this appeal. The appeal is hereby struck out. I make no order as to costs.

DONGBAN-MENSEM, JCA

I agree with the lead Judgment prepared by my learned brother Chinwe Eugenia Iyizoba, JCA striking out this appeal and upholding the Preliminary Objection.

I adopt the said Judgment in its entirety. It is hereby so ordered.

FASANMI, JCA

I had a preview in draft of the lead judgment of my learned brother Chinwe Eugenia Iyizoba JCA.

I too uphold the preliminary objection that the writ of summons and statement of claim having been signed by Akin Aiyedun & Co a non-legal practitioner are incompetent, null and void. The lower Court lacked jurisdiction to entertain the suit and this Court lacks jurisdiction to entertain the appeal. The appeal is struck out accordingly.