Alfa Saka Salami V. Alhaji Mohammed Jodi Magaji Muse Family (2019)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
At the High Court of Kwara State, Ilorin Judicial Division, [the trial Court, for short], the respondent in this appeal, [as Claimant], sought declaratory and injunctive reliefs against the appellants herein [as defendants]. In particular, they claimed ownership of the parcel of land at Lao Gbagba village, off Ilorin Airport, Ilorin, Kwara State.
Having lost the case at the trial Court, the respondent approached the Court of Appeal, Ilorin Division, [the lower Court, for short], which said Court allowed his appeal and set aside the trial Court’s judgement. The lower Court equally granted the respondent’s principal and ancillary claims. This appeal is, therefore, the appellant’s expression of his dissatisfaction with the lower Court’s judgement.
The appellant formulated four issues for the determination of his appeal. On his part, the respondent endorsed the appellant’s four issues. However, he greeted the appeal with a preliminary objection on two grounds.
I will therefore dispose of the two grounds of the preliminary objection before turning to the four issues
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(if necessary). This must be so for a preliminary objection is a pre-emptive strike; its resolution will determine the question whether or not the appeal will be determined on the merit, Jim-Jaja v C.O.P. Rivers State and Ors (2012) LPELR-20621 (SC) 10, paragraph F.
Indeed, that is why I am under obligation to resolve the issues agitated in the above preliminary objection before taking any further step in the determination of this appeal, Okoi v Ibiang [2002] 10 NWLR (pt. 776) 455, 468; UBA Plc v ACB [2005] 12 NWLR (pt 939) 232; Goji v Ewete [2001] 15 NWLR (pt 736) 273, 280.
Once this preliminary objection on the competence of this appeal succeeds, the proceedings in the appeal would be aborted and the need to consider the issues raised therein would automatically abate, L. M. Ericsson Nig Ltd v Aqua Oil Nig Ltd (2011) LPELR-8807, citing Ahaneku v. Ekeruo (2002) 1 NWLR Pt. 748) 301, 30; NPA v. Eyamba [2005] 12 NWLR (pt 939) 409; UBN v. Sogunro [2006] 16 NWLR (pt 1006) 504, 521-2.
RESPONDENT’S PRELIMINARY OBJECTION
As indicated earlier, the respondent greeted the appellant’s appeal with a preliminary objection.
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This was argued at paragraphs 4.0 – 5. 08 of the respondent’s brief, pages 4 – 11. The two issues were couched thus:
A. The case of the appellant at the trial Court is fundamentally defective and or incompetent for having been premised on a non-existent pleadings or Statement of Defence.
B. The complaint of the appellant contained in Ground One of the appellant’s Notice of Appeal and Issue One of the appellant’s issues for determination distilled therefrom are incompetent having been raised for the first time before this Honourable Court without the appellant first seeking and obtaining the leave of this Honourable Court to do so.
ARGUMENTS ON THE PRELIMINARY OBJECTION
RESPONDENT/OBJECTOR’S SUBMISSIONS
At the hearing of this appeal on December 18, 2018, Abdulwahab Bamidele, of counsel for the respondent, having adopted his brief, drew the Court’s attention to the respondent’s preliminary objection, pages 4 – 11 of the said brief. He adopted and relied on the arguments therein as his arguments in this appeal.
ARGUMENTS ON GROUND ONE
Under this ground, he pointed out that the instant appeal, Appeal No. SC/75/2009, has its roots in
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Suit No KWA/160/2003 which the respondent took out against the appellant. The respondent was the first plaintiff. Other plaintiffs were struck out sequel to the resolution of their grievance with the respondent’s family.
Learned counsel pointed out that, at the trial Court, the appellant herein, as defendant, built his case on the Statement of Defence at pages 134 – 137 of the record. He noted that the only pleading of the appellant before the trial Court, and upon which the evidence of the appellant was anchored, was the process named “Proposed Amended Statement of Defence of Defendant.” It was dated September 13, 2006 and marked “Exhibit B,” pages 134 – 137 of the record. He pointed out that, no subsequent process was filed by the appellant, pages 218 – 219 of the record.
He submitted that the Statement of Defence, upon the appellant’s evidence was built, was fundamentally defective on two grounds. In the first place, there was no substantive Statement of Defence upon which the evidence of the appellant could have been properly built. It was only a proposed Amended Statement of Defence that was filed which, in any event, was not a valid process.
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He further noted that the said “Proposed Amended Statement of Defence” was not signed by a Legal Practitioner as required by Sections 2 (1) and 24 of the Legal Practitioners’ Act. It was, he pointed out, signed in the name of PP: Kayode Olatoke and Co., who is not a legal practitioner. In his submission, therefore, the appellant’s pleadings at the trial Court suffered double jeopardy that is fundamentally incurable. The said process, therefore, could not legally sustain the evidence of the appellant. Okpe v FAN Milk Plc [2016] 12 SC (Pt 111) 1, 31.
In his submission, even if the amendment sought to the appellant’s Original Statement of Defence signed by PP: Olatoke and Co which was granted by the trial Court on October 5, 2006, was granted in error as a fundamentally defective process which is a nullity, it cannot be remedied by an amendment, Okarika and Ors v Samuel and Anor [2013] 2 SC (pt 111) 1, 26.
He maintained that PP: Kayode Olatoke and Co., which signed the original statement of defence is not a legal practitioner. Okafor and Ors v Nweke and Ors (2007) LPELR – 2412 (SC); SPDC Ltd v Sam Royal Hotel Nig Ltd [2016] 2 -3 SC (pt 111) 1, 27 -28; NNB Plc v Denclag Ltd
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[2002] 9 – 10 SC 167; First Bank of Nigeria Plc and Ors v Maiwada and Ors [2012] 5 SC (pt 111) 1. He opined that, being built on a fundamentally and irredeemably – defective document, the appellant’s defence must crumble, Ogboru v Okowa [2016] 11 NWLR (pt 1522) 84, 150.
He submitted that, since the proposed Statement. of Defence was inchoate, the original Statement of Defence remains the only pleading, Yahaya v Dankwambo [2016] 7 NWLR (pt 1511) 284, 336. Worse still, the motion of September 12, 2006 was struck out by the trial court, pages 118 – 128 and 218 of the record. The net effect is that the appellant failed to file a competent Statement of Defence.
In the second segment of the preliminary objection, he pointed out that the appellant’s complaint in issue one for the determination of this appeal was not dealt with by the lower Court since a party will not be allowed to introduce an issue before the appellate court, Mbanefo v Agbu and Anor [2014] SC 179/2007. Only by leave of Court could such a new issue be entertained, Obasi v MIkson Est Ind Ltd [2016] 16 NWLR (pt 1539) 335, 380; Corporate Ideal Insurance Co Ltd v Ajaokuta Steel Co Ltd [2014] 7 NWLR (pt 1405) 165.
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The arguments in the appellant’s issue one, not coming under exceptional circumstances, must be disregarded, Corporate Ideal Insurance Co Ltd v Ajaokuta Steel Co Ltd (supra). He urged the Court to strike out issue one and dismiss the appeal by reason of the evidence presented on a fundamentally-incompetent pleading.
APPELLANT’S RESPONSE
As indicated earlier, the appellant’s counsel adopted the Reply brief filed on November 26, 2018 although deemed properly filed on December 18, 2018. In sum, his response is that the appellant properly filed and served his Amended Statement of Defence. Evidence, he claimed, was led on the amended pleading. Somewhat, intriguingly, he never volunteered any response to the question of the defective original pleading signed by PP: Olatoke and Co.
RESOLUTION OF THE ISSUE
The two main grounds of the preliminary objection are that, since the original Statement of Defence was signed by PP: Kayode Olatoke and Co., a non-legal practitioner, it is irredeemably bad. The second ground is that the only pleading of the appellant before the trial Court, and upon which the evidence of
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the appellant was anchored, was the process named “Proposed Amended Statement of Defence of Defendant.” It was dated September 13, 2006 and marked “Exhibit B,” pages 134 – 137 of the record. He pointed out that no subsequent process was filed by the appellant, pages 218 – 219 of the record.
I observe that the building blocks in the architecture of the appellants forensic edifice rest on a very weak foundation, his Statement of Defence. Now true indeed, the original Statement of Defence, dated January 24, 2005, was signed by PP: Kayode Olatoke and Co, page 67 of the record.
The response of the appellant’s counsel was that it was:
…wrong for the respondent to raise such objection in this Court at this stage. This is because the issue on (sic) non – existence of pleading or Statement of Defence of the appellant at [the] trial Court was not an issue or contended at the trial Court and Court of appeal.
The respondent have (sic) ample opportunity to raise the issue of non – existence of defence of the appellant at the trial. This, he did not do. The issue was not also conversed (sic) at the lower Court.
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This Court (sic) being Supreme Court (sic) is not a Court of first instance. It will be clearly incongruous to ask this Supreme Court to act or make a pronouncement on [an] issue or issues which did not come up before [the] trial Court or Court of Appeal…
[Paragraph 2. 02 – 2.03 of the Appellant’s Reply filed on November 26, 2018, although deemed properly filed on December 18, 2018].
With due respect, the above arguments of learned counsel for the appellant, hastily beautiful, are not only, opinionated, but are, in actual fact, sophistical. Truth told, his above submissions are characterized by their irreverence to, and profanation of the inveterate doctrine of stare decisis, a doctrine of ancient, albeit, illustrious jurisprudential pedigree, Abacha and Ors v Fawehinmi [2002] 6 NWLR (pt. 660) 228, 317; Emerah and Sons Ltd v Attorney General Plateau State and Ors [1990] 4 NWLR (pt.147) 788; Global Trans Oceanic S. A. v Free Ent. (Nig) Ltd [2011] 5 NWLR (pt 706) 426, 441; Osakwe v Federal College of Education Asaba [2010] 10 NWLR (pt.1201) 1, 35 – 36.
The arguments of the appellant’s counsel had, indeed, been settled by this Court in Wema Securities and
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Finance Plc v NAIC (2015) LPELR – 24833 (SC). According to the Court [per Nweze, JSC]:
… Of course, it is still a valid general principle that where a party seeks to raise a fresh issue on appeal, he must seek the leave of Court. Where he fails to do so, the issue, which ipso facto is rendered incompetent, would be liable to be struck out, A-G., Oyo State v Fairlakes Hotel Ltd [1988] 12 SC (pt. 1) 1; [1988] 5 NWLR (pt. 92) 1; Uor v Loko [1988] 2 NWLR (pt. 77) 430.
However, the issue of jurisdiction constitute an exception to this general principle for it [such an issue of jurisdiction] could be raised for the first time before an appellate Court, with or without leave, Obiakor and Anor v The State [2002] 10 NWLR (pt. 776) 612, 626 G; Gaji v. Paye [2003] 8 NWLR (pt. 823) 583; Oyakhire v The State [2006] 7 SCNJ 319, 327 – 328; [2006] 15 NWLR (pt.1001) 157; Okoro v. Nigerian Army Council [2000] 3 NWLR (pt. 647) 77, 90 – 91; Ajakaiye v. Military Governor, Bendel State [1993] 9 SCNJ 242; Yusuf v. Cooperative Bank Ltd [1994] 7 NWLR (pt. 359) 676.
The lower Court’s view that the issue of jurisdiction could be raised without leave is well-taken.
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The reason is not far to seek. Due to its fundamental nature, it is exempted from the disabilities and restrictions which hamper other legal points from being canvassed or agitated for the first time on appeal, Western Steel Works Ltd and Anor. v. Iron Steel workers Ltd [1987] 2 NWLR (pt 179) 188. In effect, such-an issue of jurisdiction could always be raised without leave, Aderibigbe v. Abidoye [2009] 10 NWLR (pt. 1150) 592, 615 paragraphs. C – G; Comptroller Nigeria Prisons Services Lagos v Adekanye [2002] 15 NWLR (pt. 790) 33; Obatoyinbo v Oshatoba [1996] 5 NWLR (pt. 450) 531; Management Enterprises Ltd v Otusanya [1987] 2 NWLR (pt 179) 188.
In consequence, it can never be too late in law to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration, Magaji v Matari [2000] 8 NWLR (pt 670) 722, 735; Akegbe v Ataga [1998] 1 NWLR (pt 534) 459, 465; State v Onagoruwa [1992] 2 SCNJ 1; A.G., Lagos v Dosunmu [1989] 3 NWLR (pt 111) 552. Indeed, leave of the appellate Court is unnecessary since it can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so,
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Obikoya V. The Registrar of Companies [1975] 4 SC 31, 35; NNPC v Orhiowasele and Ors (2013) LPELR -20341 (SC); Elabanjo v Dawodu [2006] 15 NWLR (pt. 1001) 76; Ndaeyo v. Ogunaya (1977) 1 SC 11; Chacharos v. Ekimpex Ltd [1988] 1 NWLR (pt. 68) 88; Bakare v. A.G. Federation [1990] 5 NWLR (pt. 152) 516; Oyakhire v. State [2006] 15 NWLR (pt. 1001) 157; Oloriode v. Oyebi [1984] 1 SCNLR 390; Ezomo v. Oyakhire [1985] 1 NWLR (pt 2) 193; Akegbejo v. Ataga [1998] 1 NWLR (pt 534) 459, 468; 469; Bronik Motors v. Wema Bank Ltd [1983] 6 SC 158; Senate President v Nzeribe [2004] 41 WRN 60; Odiase v Agho (1972) 1 All NLR (pt 1) 170; Dickson Moses v The State [2006] 7 SCM 137, 169.
Thus, although it is desirable that preliminary objections on issues of jurisdiction be raised early, once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. What is more, it is always in the interest of justice, where necessary, to raise jurisdictional issues so as to save time and costs and to avoid a trial which may ultimately amount to a nullity, Osadebay v. A-G., Bendel State [1991] 1 NWLR (pt.169) 525; Owoniboys Tech. Services Ltd v John Holt Ltd [1991]
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6 NWLR (pt.199) 550; Okesuji v. Lawal [1991] 1 NWLR (pt.170) 661; Katto v. Central Bank of Nigeria [1991] 9 NWLR (pt. 214) 126; Utih v. Onoyivwe [1991] 1 NWLR (pt.166) 166). [pages 40 40; A- B; italics supplied for emphasis].
In effect, the preliminary objection of the respondent’s counsel is firmly-anchored on good authorities of illustrious pedigree. As shown above, the learned counsel had cited Okafor v Nweke (supra) and other cases on the effect of signing a process in a name other than that of a legal practitioner. That decision, Okafor v Nweke (supra), has actually assumed a pre-eminent position in the jurisprudence of permissible signatures on Court processes. It may thus be regarded as the locus classicus on this issue. [I note in passing that the Latin noun, locus classicus, [plural, loci classic], which was first used in 1853, means a passage that has become a standard for the elucidation of a word or subject; a classic case or example; the passage regarded as the principal authority on a subject, Chambers 21st Century Dictionary (Revised Edition) (New Delhi: Allied Chambers (India) Ltd., 803).
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Cases that have followed that authority are legion: they are many, SLB Consortium Ltd v NNPC [2011] 9 NWLR (pt 1252) 317; Ogundele v Agiri [2009] 12 SC (pt 1) 13; Oketade v Adewunmi [2010] 8 NWLR (pt 1195) 63; [2010] 2-3 SC (pt 1) 140; First Bank of Nig Plc v Alhaji Salman Maiwada (supra); Alawiye v. Ogunsanya (2012) LPELR- SC.229/2007; Braithwaite v Skye Bank (2012) LPELR- SC. 325/2010; NNB V. Denclag (2003) 4 NWLR (PT. 916) 549 SPDC Ltd., V. Sam Royal Hotel Nig., Ltd., (2016) 2-3 (PT. 111) 1, 27-28 and so.
What is more, from the consistent posture of this Court in SLB Consortium Ltd v NNPC (supra); Ogundele v Agiri (supra); Oketade v. Adewunmi (supra); First Bank of Nig Plc v Alhafi Salman Maiwada (supra); Alawiye v Ogunsanya (supra); Braithwaite v Skye Bank (supra), the appellant’s submissions to the contrary are clearly preposterous.
In First Bank of Nig Plc v Alhaji Salman Maiwada [supra], this Court elevated the position to the level of substantive law beyond procedural technicalities. Listen to the Court’s reasoning:
The decision in Okafor v Nweke (supra), although it has not specifically adverted to the two earlier decisions of [The Registered Trustees v Akindele (1967) 1 ANLR 110] and Cole v Mattins (supra),
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as it has not expressly overruled any of them, nonetheless, it has decided that the provisions of Sections 2(1) and 24 of the Act affect the jurisdiction of the Court as a matter of substantive law and not as a matter of procedural law (and so as in certain cases they cannot be waived). Clearly the decision in Okafor v Nweke has impliedly abandoned and dissented from the decisions of the two cited cases as no longer good precedent to
See, First Bank of Nig Plc v Alhaji Salman Maiwada (supra) (italics supplied).
In other words, FBN Plc and Anor v Alhaji Salman Maiwada (supra) has finally dispelled any lingering uncertainty as to its imprimatur on the said Okafor v Nweke (supra). Interestingly, in that case [FBN Plc and Anor v Alhaji Salman Maiwada (supra)], an eminent panel of seven distinguished Justices of this Court, unanimously, endorsed the Court’s earlier decision.
Thus, the position is that:
… it is now settled that all Court processes … must be signed in the manner as prescribed by the Act, that is to say, by a person qualified as a legal practitioner and enrolled in the Supreme Court of Nigeria. Any Court processes
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signed in the business names of a firm’s name … having been rendered incurably defective ab initio are liable to be struck out.
See; FBN Plc and Anor v Alhaji salmon Maiwada (supra)
Truth told, that this issue goes beyond technicality has been re-iterated by this Court in FBN Plc and Anor v Alhaji Salman Maiwada (supra). Hear this ratiocination on this point:
I agree that the age of technical justice is gone. The current vogue is substantial justice. See: Dada v Dosunmu [2006] 12 PNJSC 115. But substantial justice can only be attained not by bending the law but by applying it as it is; not as it ought to be. There is nothing technical in applying the provisions of Sections 2(1) and 24 of the Legal Practitioners Act as it is drafted by the Legislature. The law should not be bent to suit the whims and caprices of the parties/counsel. One should not talk of technicality when a substantive provision of the law is rightly invoked.
FBN Plc and Anor v Alhaji Salman Maiwada (supra) (italics supplied)
The implication of all I have said above is that the said defendant/appellant’s pleading, signed by “PP: Olatoke and Co.,” is unknown to our
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law, SLB Consortium Ltd v NNPC (supra); Ogundele v Agiri (supra); Oketade v Adewunmi (supra); First Bank of Nig Plc v Alhafi Salmanu Maiwada (supra); Alawiye v Ogunsanya (supra); Braithwaite v Skye Bank (supra). Hence, the only pleading filed was the Statement of Claim.
The absence of the Statement of Defence meant that no issues were joined, in the pleadings, Egesimba v. Onuzuruike [2002] 15 NWLR (pt. 791) 466. The appellant was, therefore, deemed to have admitted the claim or reliefs in the Statement of Claim. The only exception, which was not the case at the trial, was where a paragraph of the said Statement of Claim contained averments that were, notoriously, false to the knowledge of the Court. In the natural course of events, a Court would not be expected to admit such inadmissible facts. That was not the case at the trial Court, Okoebor v. Police Council [2003] 12 NWLR (pt. 834) 444.
In all, therefore, I agree with the respondent’s counsel that the appellant failed to file a competent Statement of Defence. Thus, all the evidence, the appellant and his witnesses gave at the trial went to no issue. This must be so for, as is well-known, evidence
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not pleaded goes to no issue, Emegokwue v. Okadigbo [1973] 4 SC 113; George v. Dominion Flour Mills Ltd [1963] 1 SCNLR 117; (1963) 1 All N LR 71, 78; Orizu v. Anyaegbunam 1 LRN 216.
Such evidence, if mistakenly admitted, as the trial Court did in the instant case, ought to, and should have, in fact, been ignored by the Judge in coming to his conclusion in the matter before him, National Investment and Properties Co. Ltd. v. Thompson Organisation Ltd (1969) NMLR 99; Woluchem v. Gudi [1981] 5 SC 291; Adenuga v. L.T.C. (1950) 3 WACA 125.
This first issue in the preliminary objection succeeds. It obviates the need for any voluble comments on the second issue. This arm of the preliminary objection on the competence of this appeal succeeds. The result is that the need to consider the issues raised in the appeal would automatically abate, L. M. Ericsson Nig Ltd v Aqua Oil Nig Ltd (supra); Ahaneku v. Ekeruo (supra); NPA v. Eyamba (supra); UBN v Sogunro (supra).
In consequence of all I have said above, I find that this appeal must be, and is hereby, dismissed. I hereby enter an order dismissing it for, as shown above, the appellant’s evidence, having
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not been pleaded, [by reason of the incompetence of the Statement of Defence], should have, in fact, been ignored by the trial Court, Emegokwue v. Okadigbo (supra); George v. Dominion Flour Mills Ltd (supra); Orizu v. Anyaegbunam (supra); National Investment and Properties Co. Ltd v. Thompson Organisation Ltd (supra); Woluchem v. Gudi (supra); Adenuga v. L. T.C. (supra).
Appeal dismissed. Parties to bear their costs. I affirm the decision of the lower Court.
SC.75/2009