Chief Christian Uche Nwachukwu V. MR Ignatious Etim Ekpiken (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice, Lagos state delivered on 16th April 2007 by JUSTICE O. A ADEFOWOPE – OKOJIE wherein the Respondent filed an action commenced by writ of summons and further amended statement of claim for a declaration of title to a portion of that land lying and situate at No.19 Nwachukwu Drive, Okota Isolo, Lagos state measuring 1282.799sq meters and also sought for general damages of N500,000.00 for trespass. Judgment was entered in favour of the Appellant/Defendant and the Learned Trial judge granted all the reliefs sought by him.

The Respondent/Plaintiff being dissatisfied with the decision filed an Amended Notice of Appeal along with the Appellant’s brief of argument both dated and filed on 2nd December 2010 with 10 grounds of appeal. Appellant formulated three issues for determination in the Appellant’s Brief of Argument which was settled by BUKIE P. OBI as follows:

1. Whether the “signing” of all the processes in this suit (from the writ of Summons to the final address) by A. O. S. HODONU & CO. an incorporeal entity, which did not” and could not have received legal education, and has not, and could not, have been enrolled as a Barrister and Solicitor, and in breach of the provisions of Order 13 Rule 34 and 15 Rule 2 of the High Court of LAGOS State (Civil Procedure) Rules, 2004 and contrary to the decisions in OKAFOR & ORS V NWEKE & ORS (2007) 3 SC (PT.11) 55, 62/63, 64, 66-68 and OGUNDELE & ANOR V AGIRI & ANOR (2009) 12 SC (PT.1) 735 did not thereby invalidate / annul the processes thereof and the Judgment thereon (Ground one of the Grounds of Appeal).
2. Whether the allegation of trespass by annexation of a part only of a piece or parcel of land, which presupposed the occupation/retention/possession of the part not violated, does not thereby limit the dispute to establishing or proving the direction of the trespass and the part or quantum of land annexed by the trespass; if yes, whether even if proven (which is not the case) the reliefs claimed are not in dissonance (Ground two of the Grounds of Appeal).
3. Whether the pleadings in paragraphs 7, 8, 9, 10 and 16 of the 1st Amended Statement of Defence do not ipso facto manifest the Plea of Limitation, Laches and Acquiescence (Ground six of the Grounds of Appeal).
4. Whether an unstamped and unregistered registrable land instrument (Exhibit 2) is admissible in Law, at all, and whether same was duly admitted (Ground seven of the Grounds of Appeal)

The Respondent filed an Amended Brief of Argument dated and filed the 14th February, 2014 and deemed properly filed on 25th September 2014.The brief was settled by A. S. O. HODONU wherein he formulated four issues as follows:

1. (a) Whether by virtue, of Section 1(1) and (3), 241, 242 as well as Section 318 of the 1999 Constitution (as amended) an appeal can lie from the High Court to the Court of Appeal on an issue which has, not been argued and decided upon by the lower court.

(b) Whether the judgment of court delivered on 15th April, 2007 by his lordship, JUSTICE O. A. ADEFOWOPE OKOJIE of the High Court of Lagos should be overruled on the sole ground the Process initiating the proceeding in 2000 were signed by “A. O. S HODONU & CO.” without the name A. O. S HODONU.

(c) Whether Section 2 (1) and Section 24 of the Legal Practitioner Act is not void for the reason that it hinders the determination of the civil rights and obligations of parties as provided by Section 6 (6) (b) of the 1999 Constitution as amended.

2. Whether the court was right when it held that the cause of action arose upon the trespass of the Appellant on the land thus the Rule of Limitation, Laches and Acquiescence does not apply to the case.
3. Whether from the totality of evidence adduced by parties, the Lower Court was right to hold that the Appellant is a trespasser on the land in dispute lying, being and known as No.19 Nwachukwu Drive, Okota – Isolo, Lagos.
4. Whether the document Exhibit P2 admitted by the lower court, even if it did not comply with Section 2 and 16 of Land Instrument Registration Law was inadmissible, null and void and worthless for all purposes in the circumstances of the case.

The facts of this case is that parties in the lower court had adjoining lands as neighbours, following a trespass on a portion of his land by the Defendant /Appellant, the Plaintiff /Respondent herein sought a relief to declare him the person entitled to Statutory Right of Occupancy of the land lying and situate at No. 19 Nwachukwu Drive, Okota Isolo Lagos. The Plaintiff/Respondent also sought N500,000 as general damages for trespass committed by the Defendant/ Appellant on the Plaintiff/Respondent piece of land, as well a perpetual injunction restraining same.

At the end of trial, the court found for the Plaintiff/respondent.

ISSUE 1

Issue 1 of the Appellant’s brief of Argument and issues 1(a), (b), & (c) of the Respondents Brief of Argument are the same. I shall therefore deal with them together, as they bother on the jurisdiction of the court abinitio to entertain the appeal.

The Appellant complains about the manner in which the initiating process at the lower court were signed i.e “A. O. HODONU & CO LEGAL PRACTITIONERS AND PROPERTY CONSULTANTS” as seen on all the initiating processes from the Writ of Summons to the final address. Counsel submitted that it was signed in a corporate name contrary to the provisions of Order 13 rule 34 and Order 15 rule 2 of the High Court Civil Procedure Uniform Rules of Lagos State and relied on the following cases:

OKAFOR & ORS V NWEKE (2007) 3 SC (PT.11) 55, OGUNDELE & ANOR V AGRIC & ANOR (2009) 12 SC (PT 1) 35, UNITY BANK PLC v. OLUWAFEMI (2007) ALL FWLR (382) 1923, COLE V MARTINS (1958) ALL NLR 161.

Counsel urged the court to set aside the decision.

On the other hand Hodonu Esq. as counsel to the Respondent, while arguing Issues 1 (a), (b), &(c) together submitted that it was a ground raised for the first time by the Appellant. He averred further that this Ground 1 of the appeal, together with all arguments thereon is unconstitutional and should be struck out. This is because it was not raised at the court below and not based upon any given decision and therefore, the appeal lack a ground to rest on.