Ajibode & Ors V. Gbadamosi & Ors (2021)
LAWGLOBAL HUB Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.S.C.
The Plaintiffs [now Respondents] commenced Suit NO. HCT/72/1995 in the High Court of Ogun State of Nigeria, in the Otta Judicial Division on 24th April, 1995.
Endorsed on the writ of summons are the plaintiffs’ (Respondents’) claims against the defendants (now Appellants). The claims are hereunder reproduced:
i. A declaration that the 1st – 5th Defendants are not members of or related to Adoku-Ogbo Family of Ewupe, Otta, Ogun State.
ii. A declaration that the purported Power of Attorney dated 20th day of July, 1980 and deed of conveyance dated 4th day of September, 1985 executed jointly by the 1st to 7th Defendants and/or their representatives are irregular, wrongful, null and void of no legal effect whatsoever.
iii. An Order setting aside all sales and transactions affected by or pursuant to the said purported power of attorney in respect of Adoku-Ogbo Family of Ewupe Via Otta.
iv. Perpetual injunction restraining the 1st – 5th Defendants from parading themselves as members of Adokun-Ogbo Family of Ewupe Via Otta.
v. Perpetual injunction restraining the 1st- 5th Defendants, their servants, agents, or privies from dealing with Adokun-Ogbo Family of Ewupe Via Otta.”
In their amended statement of claim dated 18th October, 1996 but filed on 1/12/2000, the plaintiffs claimed as follows: –
“(a) Declaration that the 1st, 2nd, 3rd, 4th and 5th Defendants are not members of Adokun-Ogbo Family of Ewupe.
(b) Declaration that purported Power of Attorney dated 21/7/1980 and the Deed of Conveyance dated 4/9/1980 purportedly executed jointly by the 1st to 6th Defendants and other persons named therein and/or their representatives are irregular, unlawful, null, void and of no effect whatsoever.
(c) An order setting aside all sales and transactions effected under or pursuant of the purported Power of Attorney in respect of Adokun-Ogbo Family Land.
(d) Perpetual injunction in restraining the 1st, 2nd, 3rd, 4th and 5th Respondents from parading themselves as members of Adokun-Ogbo Family of Ewupe.
(e) Forfeiture of the tenancy enjoyed by the 1st, 2nd, 3rd, 4th and 5th Defendants and other descendants of Ajibode Family over Adokun-Ogbo Family Land at Ewupe on the grounds of misconduct.
(f) Perpetual injunction restraining the 1st, 2nd, 3rd, 4th and 5th Defendants by themselves or a member of Ajibode Family, their servants, agents and privies from dealing with Adokun-Ogbo Family in any capacity.”
A further amended statement of claim was filed on 6/3/2000. Yet another further amended statement of claim was filed on 25/4/2002. This is the operative statement of claim and contains the reliefs endorsed on the amended statement of claim.
The 1st to 5th Defendants filed a statement of defence on 27th February, 1997. A statement of defence was filed separately for the 2nd Defendant on 25/03/1997.
Another statement of defence was filed for the 1st to 5th Defendants on 2/09/1998. Yet another statement of defence and curiously a reply to the statement of defence of the 1st to 5th Defendants, was filed on 2/09/1998.
Finally, an amended writ of summons was filed on 1/12/2000 and the claim herein endorsed appears to tally with the claim in the further amended statement of claim filed on 25/04/2002.
The judgment of the trial Court delivered on 25/05/2007 relates to four [4] Plaintiffs and six (6) Defendants. In the judgment, the trial Court granted reliefs nos 3 and 6 and dismissed the rest of the Plaintiffs claims.
The Plaintiffs/Appellants appealed the judgment to the Court of Appeal, Ibadan Division. The lower Court allowed the appeal. It affirmed the judgment of the trial Court in respect of reliefs Nos (b) and (c) which the trial Court granted in part.
Against the judgment of the lower Court, the Respondents (now Appellants) have appealed to this Court, challenging the decision with a single ground of appeal hereunder reproduced, shorn of its particulars: –
“Ground 1: The lower Court is jurisdictionally incompetent to hear the appeal as the case was not initiated by due process of law at the trial Court.”
From the lone ground of appeal, the Appellants formulated the following issue for the Court to determine: –
“Whether the Court of Appeal had jurisdiction to sit on an appeal that emanated from the judgment delivered on the 25th day of May, 2007. Some been (sic) the decision that originated from the writ of summons filed in Suit No. HCT/72/1995 which was signed by the law office of Chief Toyer Coker & Co.”
Learned counsel for the Respondents framed the following issue from the lone ground of appeal: –
“Whether in view of the peculiar facts of this case in respect of the originating processes filed the Court of trial and the Court below did not have the jurisdiction to adjudicate on the matter.”
In arguing the issue in his brief of argument, learned counsel for the Appellants submitted that the issue of jurisdiction can be raised in any proceedings even in the Supreme Court for the first time, adding that once it is raised it will be resolved before any further step is taken in the appeal.
He cited and relied on Gaji & Ors vs Paye [2003) 7 SCN 55 at 63: and Durwode vs The State (2000) 12 SC (Pt. 1) 1 at 4. He urged the Court to hold that failure to raise the issue either in the trial Court or in the Court of Appeal will not deprive the Appellants of the right to be heard on the issue of jurisdiction.
He contended that a Court has power to entertain a matter before it if the following conditions are fulfilled:
“1. The matter is properly constituted as regards number and qualification of members of the bench and no member is disqualified for one reason or another.
- The subject matter of the case is within the jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
- The case come before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”
He referred to and relied on the following authorities:
- Madukolu vs Nkemdilim (1962) 1 ALL NCR 587.
- Magaji vs Matari (2000) 5 SC (sic) 46 at 57.
- Nyame vs FRN (2010)4 SCM 67 at 92.
- Nwankwo & Anor vs Yar’Adua & Ors (2010) 6 SCM 121 at 147
He referred to pages 1 to 23 of the records for the writ of summons and the ex parte motion seeking approval of the trial Court for the Plaintiffs (now Respondents] to institute and prosecute the suit giving rise to this appeal in a representative capacity and emphasised that the said processes were signed by the law firm of “Chief Toye Coker & Co.”
He submitted that the law office of Chief Toye Coker & Co is not qualified under Section 2(1} of the Legal Practitioners Act to sign the processes. He reproduced Section 2(1) of the Act and relied on Okafor vs Nweke (2007) ALL FWLR (Pt 368) 1016 at 1023 – 1027. Further, he relied on Section 24 of the Act and contended that the law firm of “Chief Toye Coker & Co” is not a person entitled to practice as a barrister or as a barrister and solicitor. He argued that the processes signed by the law firm are null and void, and that the suit not having been commenced by due process is incompetent and the Court had no jurisdiction to entertain same.
He urged the Court to allow the appeal.
Responding learned counsel for the Respondents, in his brief, conceded that a threshold issue can be raised even on appeal to the Supreme Court. He relied on Onyema vs Oputa (1987) 3 NWLR (Pt. 60) P. 259; Emuze vs Vice Chancellor Uniben (2003) 5 SCNJ Page 297. And again conceded that this Court has laid down condition for the competence of a matter before the Court. The conditions include the case coming before the Court by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. He relied on Madukolu vs Nkemdilim (supra) and Sken Consult Nig. Ltd vs Ukey (1981) 1 SC. 6 at 36.
Further, in his agreement with the Appellants so far, he referred to the doctrine of STARE DECISIS and the case of Okafor vs Nweke (supra) which he said was followed in SLB Consortium Ltd vs NNPC (2011) 4 SCNJ 211.
However, he submitted that a judgment is an authority for what it actually decides. He relied on Emeka vs Okadigbo & 4 Ors (2012) 18 NWLR (Pt. 1331) 55 at 95 – 97.
He argued that in Okafor vs Nweke [Supra] the offending processes signed by “JHC Okolo SAN & Co.” were a motion on notice, proposed notice of original appeal, attached to the affidavit in support of motion and the brief of argument in the motion. He said the issue before the Supreme Court then was “Whether the notice of motion notice (sic) of cross-appeal and the Appellant’s brief of argument for extension of time in this application are null and void.” He said what was in issue Okafor vs Nweke [Supra] was a set of originating processors in the application before the Court.
He argued that in the two cases Okafor vs Nweke [Supra] and SLB Consortium Ltd vs NNPC [Supra] in which the originating summons and the amended statement of claim were signed by “Adewale Adesokan & Co.” the objections were predicated on a breach of the rules of Court, but the ground of objection in this appeal is not predicted on any rule of Court. Further, he relied on Omnia Nig. Ltd vs Dyktrade Ltd. (2007) SCNJ 288 in his argument that the statement of claim is part of the originating process and when it is filed it supercedes the writ of summons and the contents therein determine the jurisdiction of the Court to entertain the suit. He argued that the statement of claim which is, according to him, part of the initiating process, was signed by a Legal Practitioner. He urged the Court to distinguish the facts of this case from the facts of Okafor vs Nweke.
He urged the Court to resolve the sole issue in favour of the Respondents and to dismiss the appeal.
My noble Lords, before I resolve the issue in this appeal, permit me to comment on the briefs filed by the parties through their respective Learned counsel.
In each brief, Learned counsel stated the facts of the case and proceeded to the issue for determination. There was no mention of the judgment of the trial Court, appeal to the lower Court or judgment of the said Court. There was scarcely any mention of the grounds of appeal. This is a deviation from the appellate practice.
RESOLUTION OF THE SOLE ISSUE:
The original writ of summons tagged “General writ of summons” is at page 2 of the records. It was issued by Chief Toye Coker & Co. The writ contained an untrue statement to the effect that Chief Toye Coker & Co. of 6, Ojugbele Street, Off Metun Road Otta, Ogun State is “Legal Practitioner for the Plaintiffs ” Chief Toye Coker & Co.” is not a single Legal Practitioner as described in the writ. Rather it indicates a firm of legal practitioners.
I accept the argument of Learned counsel for the Appellants, which his colleague for the Respondent did not counter, to the effect Chief Toye Coker & Co. cannot validly sign the writ of summons, an initiating process. I will add that the said law firm of Chief Toye Coker & Co; cannot sign any valid Court process, not being a legal practitioner within the meaning and intendment of the Legal Practitioners Acts:
Section 2(1) of the Act provides “Section 2(1) subject to the provisions of this Act a person shall be entitled to practice as a Banister or as a Barrister and Solicitor either generally or for the purpose of any particular office or proceedings.”
In my humble view “a person” as used in Section 2(1) of the Act means a natural (not a juristic) person who must have satisfied the condition precedent to call, and must have been called, to the Bar in Nigeria; or admitted under special circumstances to engage in law practice in Nigeria. The person referred to in the subsection must have been duly called to the Bar and must have been enrolled in the Supreme Court of Nigeria. Even learned counsel for the Respondents agreed, by implication, that Chief Toye Coker & Co. is not a person contemplated in Section 2(1) of the Act.
The locus classicus on this point, Okafor vs Nweke (Supra) relied on by the Appellants, but the facts of which the Respondent tried to distinguish from the facts of this case, established that any document or process for filing in Court (not just an originating process) must be signed by a person qualified to practice under the Act. Any other mode of signing and authenticating a Legal Process will render the process a nullity. See also FBN Plc & 3 Ors vs Maiwada & 2 Ors (2012) 5 SC (Pt. 111) 1, Alawiye vs Ogunsanya (2012) 12 SC (Pt.111) 1
A process signed in violation of the provisions of the Act cannot be said to have been duly filed before the Court. In the eye of the law, such process does not exist and so cannot invoke the judgment of the Court. See Ogli Oko Memorial Farm Ltd & Anor vs Nigerian, Agricultural Cooperative Bank Ltd (2008) 4 SCNJ 436.
Learned Counsel for the Respondents argued that the decision in Okafor vs Nweke (Supra) and similar cases were decisions on objections relating to breaches of rules of Court. The violation of an Act of the National Assembly is a much more serious matter than a violation of the rules of Court.
Learned counsel for the Respondents argued that the statement of claim which he says is a part of the initiating process, supercedes the writ of summons. In the suit giving rise to this appeal the originating process is the writ of summons. The subsequent statement of claim is not part of the initiating process.
I agree with Learned counsel for the Respondents that the statement of claim when filed supercedes the writ of summons. But this principle is not absolute in its applications. It applies to the contents of the writ of summons and if a new claim is contained in the statement of claim, the new claim cannot be superceded for it is not part of the claim in the writ, and the statement of claim cannot supercede its part. Most of all, if the writ of summons is filed, as in this case in violation of the Legal Practitioners Act and ipso facto null and void, the time hallowed principle of the statement of claim superceding the writ of summons will not apply. The writ is a nullity and there is nothing for the statement of claim to supercede. That which is not in existence cannot be superceded by anything.
What purports to be a writ of summons in this case became a nullity upon being filed. It could not ignite the jurisdiction of the Court and a purported process filed pursuant to it does not fare better than the writ.
Learned counsel for the Appellants argued that the trial Court and ipso facto the Court below had no jurisdiction in the matter. If the Trial Court lacked jurisdiction to entertain the matter, it follows that the Court below had no jurisdiction to hear the appeal arising therefrom. Jurisdiction of a Court is donated to it by either the constitution or by a statute. See Miss Oluchi J. Anyanwoko vs Chief Mrs. Christy O. N. Okoye & 4 Ors. (2010) 1 SC (Pt. 11) 30.
The jurisdiction of the Court remains dormant until the claim before the Court ignites it. If the claim has not been brought before the Court by due process the claim cannot invoke the Court’s jurisdiction, and the Court labours in vain in entertaining the suit. This is the case here. The trial Court lacked jurisdiction to entertain the suit nor has the Court below the competence to determine the appeal arising from proceeding which are void.
My noble Lords, I am not unaware of contrary decisions by eminent jurists of the Court below and of the apex Court.
The facts of this appeal appear to be similar to the facts in IBB Industries Ltd vs Mutunci (Nig) Ltd (2012) 6 NWLR (Pt. 1297) 487 CA and Heritage Bank Ltd vs Bentworth Finance (Nig) Ltd (2018) 9 NWLR (Pt. 1625) 420 SC.
The Court of Appeal in IBB’s case relied on the doctrine of waiver and dismissed the appeal. Also, in the Heritage Bank’s case, this Court dismissed the appeal on the same doctrine.
In each case, it would appear that the signature by a law firm was treated as an irregularity which the Appellants waived by taking part in the proceedings, being aware of the defects therein.
In the present appeal, though the Appellants took part in the proceedings and neither raised the issue that the initial process was signed by a law firm in the trial Court nor in the Court of Appeal, the defect cannot be treated as an irregularity that a party can waive. A party cannot waive the breach of a law made by the National Assembly and it is never late in any proceedings to raise the issue of jurisdiction.
I resolve the issue in favour of the Appellants, and consequently I allow the appeal. It is hereby ordered that the proceedings in the trial Court as those in the Court of Appeal be, and are hereby, declared null and void.
I order that parties bear their respective costs.
Appeal allowed.
SC.254/2012
