ADEYEMI V. BAALE (2017)

In The Court of Appeal of Nigeria

On Friday, the 5th day of May, 2017

CA/I/251/2008

Before Their Lordships

MODUPE FASANMI Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria


Between

ADENIRAN ADEYEMI –Appellant

AND

RAIMI OLAORE BAALE
(for themselves and on behalf of
Olaore Ige family of Oja-Igbo, Ibadan) –Respondents

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CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Oyo State High Court Ibadan Judicial Division in Suit No. I/88/2000 delivered on the 27th Day of November 2006.

By an Amended Statement of Claim dated 27/03/03 the Appellant as Plaintiff claimed from the Respondent and another now deceased on behalf of Olaore Ige Family as Defendants the following reliefs:
(i) The total sum of N4,668,000:00 (Four Million Six Hundred and Sixty-Eight Thousand Naira) being special damages for the willful damages of the plaintiff’s property and of his block molding equipment by the defendant.
(ii) The sum of N500,000 being general damages for continuing trespass being committed by the defendant on the plaintiff’s piece or parcel of land situate, lying and being at Olunde Olojuoro road, Ibadan, Oyo State of Nigeria, more particularly described in the Deed of Conveyance dated 9th August, 1976 and registered as No. 7 at Page 7 in Volume 1977 of the Lands Registry Office at Ibadan.
(iii) An Order of perpetual injunction restraining the Defendant by themselves, their agents, servants and privies or otherwise however from committing further or other acts of trespass on the plaintiff’s land.
(iv) A declaration that the plaintiff as the beneficiary of all that piece or parcel of land situate and being at Olunde Olojuoro road, Ibadan, Oyo State of Nigeria, more particularly described in the Deed of Conveyance dated 9th august, 1976 and registered as No. 7 at Page 7 in Volume 1977 of the Lands Registry Office at Ibadan is entitled to quiet enjoyment and possession.

The main crux of the Appellant’s case as gathered from his Amended Statement of Claim is that the land in dispute formed part of a vast area of land situate at Olunde Olojuora Road Ibadan originally owned by the Opayemi Family of Odokun Area Ibadan from time immemorial by inheritance from their ancestor under Yoruba Native law and Custom. The Plaintiff averred that his father bought the land in 1976 from the accredited representatives of Opeyemi family by virtue of purchase receipt dated 5th July, 1976 and later registered as No. 7 at Page 7 in Volume 1977 of the Lands Registry Office at Ibadan. The Plaintiff averred that his father and later himself (after his father’s death) exercised maximum acts of ownership on the land and had been in undisturbed possession of the land since 1976 until the 29th January, 2000 when the Defendants and their army of thugs invaded the land, broke down the wall fence and gate and committed various acts of trespass thereon, hence the institution of this suit.
The Defendants on the other hand in their Further Further Amended Statement of Defence/Counterclaim averred that their family the Olaore Ige Family of Oja-Igbo owned the vast area of land including the portion in dispute which is verged ‘RED’ in the dispute plan tendered by the Defendants at the trial as Exhibit ‘E’. It was averred that the Defendants’ family had in exercise of its right of ownership made grants of portions of the land to various people. They averred that part of the land in dispute was sold by the family to one Tayo Adisa. They first became aware of the trespass by the Plaintiff in 1999 when Tayo Adisa complained of encroachment on the land sold to him. Not wanting involvement in any land dispute, Tayo Adisa returned the land to the family and was given alternative land. The Defendants averred that sometime in 1999 the Appellant buried a sign-board depicting the disputed land as a block-industry. The Defendants warned him to keep off the disputed land as it did not belong to him. The Appellant on 1/2/2000 rushed to the lower Court and obtained an ex-parte order of injunction which directed that status quo be maintained. The Appellant however failed to diligently prosecute his suit whereupon the same was struck out by the Court on 20/2/2001 on the application of the Defendants. The Defendants then resumed work on the disputed land, the Court order having been discharged on the striking out of the suit. They averred that they were attacked and brutalized by the Appellant and his mob. He was subsequently prosecuted at the Magistrate Court but was discharged and acquitted. The Appellant then relisted the suit and the Defendants filed a Counter claim after which the case went to trial. At the close of evidence of both parties, the Appellant unsuccessfully applied for a visit to the locus-in-quo. He appealed against the order of refusal and unsuccessfully sought an order to stay

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proceedings both at the lower Court and in this Court. The trial Court in its judgment dismissed the claims of the Appellant and partially granted the counter claim of the Defendants.
Dissatisfied with the judgment, the Appellant appealed by a Notice of Appeal dated and filed on 26/01/07 which Notice was subsequently amended. Out of the 9 grounds of appeal in the Amended Notice of Appeal filed on 04/11/14 the Appellant distilled the following six issues for determination:
(i) Whether the refusal of the learned trial judge to visit the locus in quo upon the application of the appellant to see for itself the immovable features and structures on the land in dispute upon which the parties to the suit gave irreconcilable and conflicting evidence to resolve same had not occasioned miscarriage of justice in this case.
(ii) Whether the trial Court was right when he granted the counter-claim of the Respondents in view of Exhibit F tendered by the 1st Respondent which clearly revealed that the Respondents had divested themselves of whatever interest (if any) they had in the land in dispute.
(iii) Whether the learned trial Court was right when he refused to apply the provision of Section 130 of the Evidence Act to the plaintiff’s deed of conveyance dated 9th august, 1976 and tendered in the case as Exhibit B on the ground that same had been rebutted by the unchallenged evidence of the defendants.
(iv) Whether the learned trial judge was not wrong when he held that the counter-claim of the Respondents was not caught by Statute of Limitation and/that the Counter-Claim was not defeated by the defences of laches and acquiescence.
(v) Whether based on the totality of pleadings and evidence in this suit, the trial Court was right in dismissing the Plaintiff’s claims for trespass and injunction against the defendants.
(vi) Whether the Counter-Claim of the Respondent not having been personally signed by a legal practitioner duly registered in the Supreme Court will be valid or competent.
The Respondents in their brief of argument formulated four issues for determination:
(i) Whether the Writ of Summons dated 1st February 2000 (as shown on pages 1-2 of the Record) and the Statement of Claim dated 25/05/20000 (pp 25-27 of the Record) filed by the Appellant as Plaintiff in the lower Court were valid and competent to confer jurisdiction to try this case on the lower Court.
(ii) Whether having regard to the conflicting reliefs sought by the 2 parties, the state of the pleadings and the evidence before the Court, the Respondent did not establish a better title to the disputed land.
(iii) Whether the refusal by the lower Court to visit the locus in any manner prejudiced the Appellant or affected the just Determination of the case.
(iv) Whether the defences of limitation, laches and acquiescence were made out by the Appellant to defeat the Respondent Counterclaim granted by the lower Court.
Both the Appellant’s issue VI and the Respondents’ issue I touch on the jurisdiction of this Court to entertain this Appeal. I shall therefore deal with those issues first.
APPELLANT’S ISSSUE VI:
Whether the counter-Claim of the Respondent not having been personally signed by a legal practitioner duly registered in the Supreme Court will be valid or competent.
RESPONDENTS’ ISSUE I:
Whether the Writ of Summons dated 1st February 2000 (as shown on pages 1-2 of the Record) and the Statement of Claim dated 25/05/2000 (pp 25-27 of the Record) filed by the Appellant as Plaintiff in the lower Court were valid and competent to confer jurisdiction to try this case on the lower Court. 
Learned Counsel for the Appellant on his issue VI submitted that the Statement of Defence and Counter-Claim dated 21st November, 2001 at pages 44-48 of the Record was signed by Orimolade & Akintunde. Counsel referred to the cases of OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1043) 521; S.L.B. CONSORTIUM LTD VS. NNPC (2001) 9 NWLR (PT. 1252) 317; F.B.N. PLC VS. MAIWADA (2013) 5 NWLR (PT.1348) 444 @ 483 F-G, and submitted that this Court and the Supreme Court have held that a Court process can only be signed by a legal practitioner whose name is on the Roll of the Supreme Court in compliance with the provisions of Section 2(1) and 24 of the Legal Practitioners Act. Counsel submitted that it was held in the cases that any Court process signed by a law firm is incurably defective ab initio and a nullity. He relied also on MACFOY VS. U.A.C. LTD (1962) AL 152; MADUKOLU VS. NKEMDILIM (1962) SCNLR 341 @ 3481 E-F. Counsel then submitted

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that the initiating process of the Respondent being void destroyed the foundation of his case rendering all his processes and the judgment in his favour void ab initio. Counsel urged us to set aside the Judgment of the trial Court granting the Counter-Claim of the Respondent and to strike out the said Counter-Claim.
Learned Counsel for the Respondent on his issue I submitted that the issue is one of jurisdiction and that jurisdiction being fundamental to adjudication, it can be raised as a fresh issue on appeal without leave. He relied on the case of OBADAN V. STATE (2002) FWLR (PT. 113) 299 AT 309, OPOBIYI V. MUNIRU (2011) 12 SC (PT. 111) 83 and quoted the Latin maxim quod nullum est nullum producit effectum (What is void produces no action). Counsel further submitted relying on the cases of ALOBA V. AKEREJA (1988) 3 NWLR (PT. 84) 508 AND ODIASE V. AGBO (1972) 1 ALL FWLR (PT.1) 170 that issue of jurisdiction can be raised at any stage of the proceedings, even on appeal and by the Court suo motu. Counsel submitted that an examination of the Writ of Summons dated 01/02/2000 at page 2 of the Record and the Statement of Claim dated 25/05/2000 at page 27 of the Record will reveal that both Documents were signed and issued by OLUJIMI & AKEREDOLU. Counsel submitted that these processes cannot initiate a civil proceeding having regard to the provisions of Sections 2(1)and 24 of the Legal Practitioners Act and the decisions of the Supreme Court in OKAFOR V. NWEKE (2007) 3 SC (PT. 11) 35; SLB CONSTRUCTION LTD. V. NNPC (2011) 4 SC (PT. 1) 86; BRAITHWAITE V. SKYE BANK PLC. (2012) 12 SC (PT. 1) 1.

Learned counsel submitted that OLUJIMI & AKEREDOLU who purportedly issued the Writ of Summons and Statement of Claim was not a legal practitioner known to law and could not properly issue a legal process. Relying on the cases of MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR SC. 587; DANGANA & ANOR V. USMAN & ORS (2012) 2 SC (PT. 111) 103 ANDNURTW & ANOR V. RTEAN & ORS (2012) 1 SC (PT. 11) 116 counsel submitted that the suit was not initiated by due process. Learned counsel referred to the case of OKETADE V. ADEWUNMI(2010) ALL FWLR (PT. 526) 511 @ 516 where the Supreme Court per Tobi JSC held:
There is a big legal distinction between the name of a firm of legal practitioners and a legal practitioner simpliciter. While the name of Olujimi and Akeredolu is a firm with some corporate existence, the name of a legal practitioner is a name qua Solicitor and Advocate of the Supreme Court of Nigeria which has no corporate connotation. As both carry different legal entities in our jurisdiction of parties, one cannot be a substitute for the other because they are not synonyms. It is clear that Olujimi and Akeredolu is not a name of a legal practitioner and that violates Sections 2 (1) and 24 of the Legal Practitioners Act. By Section 2 (1) of the Act, the only person in the profession wearing his professional name to practice law in Nigeria is a legal practitioner and the definition of the Legal Practitioner in Section 24 of the Act does not include Olujimi and Akeredolu.
Learned counsel submitted that in the above case, the Supreme Court went further to declare incompetent and void processes issued in the name of OLUJINMI & AKEREDOLU and the appeal was dismissed on that ground. Counsel further cited the following cases: FBN V. MAIWADA (2013) ALL FWLR (PT. 661) 1433; REGISTERED TRUSTEES OF UAMC V. ENEMUO (2015) ALL FWLR (PT. 810) 1026; HAMZAT V. SANNI (2015) ALL FWLR (PT.776) 436.

Learned counsel submitted that the said Writ and Statement of Claim were the foundation of the Appellants’ case at the trial Court and that the time tested principle of law as expounded in MACFOY V. UAC (1962) AC 150 @ 160 is that one cannot put something on nothing, it will collapse. Once the Writ and Statement of Claim are held void, the proceedings founded thereon must be nullified. Counsel urged us to resolve issue I in favour of the Respondents. He further urged us to hold that the proceedings and judgment in the principal suit was incompetent, invalid, null, void and of no effect; to set it aside and to strike out the suit in its entirety.
In his Reply brief, learned counsel for the Appellant citing several authorities urged us to strike out the Respondents’ issue I as it was not predicated on any of the grounds of appeal.
RESOLUTION:
In the case of OLOBA V AKEREJA (1988) 3 NWLR (PT. 84) 508, OBASEKI JSC held:
The issue of jurisdiction is very fundamental as it goes to the competence of the Court or Tribunal. If a Court or Tribunal

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is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the Appeal Courts. This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction in the Court it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it, see Odiase v. Agho (supra). There is no justice in exercising jurisdiction where there is none. It is injustice to the law, to the Court and to the parties so to do.
It is thus clear that there is no merit in the argument of learned counsel for the Appellant in his Reply brief that the Respondent’s issue I is incompetent because it did not arise from any of the grounds of appeal. Once it is a matter of jurisdiction, it can be raised at any point in time by any of the parties or the Court suo motu; without the leave of the Court and without it arising from the grounds of appeal. An issue of jurisdiction can even arise at the Supreme Court for the first time. The law is so trite that it is needless citing further authorities on the issue. Whether or not a Court has jurisdiction goes to the root of the matter and where there is no jurisdiction, all steps taken in the case come to nothing, no matter how brilliantly the case was presented. See 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. It is now well established by 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 Section 24 Legal Practitioners Act, Cap 207 Laws of the Federation of Nigeria, 1990. See also 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; ALAWIYE V. OGUNSANYA (2012) LPELR-19661(SC); HAMZAT V. SANNI & ORS (2015) LPELR-24302(SC) and the many authorities cited by both counsel.
As far as the above principle is concerned the Appellant and the Respondent are on the same page. The Appellant took up the issue with respect to the counter-claim and argued it admirably, though as his last issue. The Respondent seeing the flaw in the Plaintiff/Appellants originating processes also took up the issue and proffered sound arguments with authorities. Nothing more needs to be said. The case of OKETADE V. ADEWUNMI (2010) ALL FWLR (PT. 526) 511 @ 516 cited by learned counsel for the Respondent dealt with a case emanating from the same chambers of Olujimi and Akeredolu. The quotation of Tobi JSC above says it all. Olujimi and Akeredolu is a law firm, not a legal practitioner as defined in the Legal Practitioner’s Act. The writ of summons in this appeal is at pages 1 & 2 of the Record. It is signed by Olujimi and Akeredolu. The Statement of Claim is at pages 25-27 of the Record. It is also signed by Olujimi and Akeredolu. These are the originating processes. In the same vein the Counterclaim is also incompetent, having been signed by Orimolade & Akintunde. These processes are all incompetent and deprived the Court of the jurisdiction to entertain the suit at the lower Court as ably argued by both sides. The suit is a nullity. On this ground alone, the appeal has merit.

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It is needless considering all the other issues formulated by learned counsel. The appeal succeeds and is hereby allowed. The judgment of Oyo State High Court Ibadan Judicial Division in Suit No I/88/2000 delivered on the 27th Day of November 2006 is hereby set aside for lack of jurisdiction. I make no order as to costs.
MODUPE FASANMI, J.C.A.: I read in draft, the judgment of my learned brother Chinwe Eugenia Iyizoba, JCA.
The Writ of Summons of the Appellant at the trial Court and the counter claim of the Respondent are incompetent and void processes. The processes were not signed by legal practitioners as defined in the Legal Practitioners Act. The processes deprived the Court of jurisdiction to entertain same.
I agree with the reasoning and conclusion that the lower Court has no jurisdiction to entertain the suit. I abide by the consequential orders contained therein.
HARUNA SIMON TSAMMANI, J.C.A.: The issue of an originating process being signed by or in the name of a Law firm has been the subject of controversy in several cases. The issue has therefore been pronounced upon by the Supreme Court and this Court in a plethora of cases. I would think that at this time the issue would have been put to rest and therefore counsels as priests in the temple of justice would not dessicate their energy and invariably that of this Court whenever the issues arise in any particular case. As has been found by my learned brother, which I agree with, that the issue in this case is not different from the cases in which the issue has arisen. The position of the law now is that such process is null and void and thereby robbing the Court of jurisdiction to hear and determine any suit premised on such a void process.
On that score, I agree with my learned brother C. E. Iyizoba, JCA that this Appeal has merit and should be allowed. It is hereby allowed. I abide by the order on costs.

Appearances

Kazeem Gbadamosi, Esq. with him, Doyinsola Alao (Miss) –For Appellant

AND

M.O. Akintunde, Esq. –For Respondent

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