M. O. Moudkas Nigeria Ent. Limited & Anor V. Emiko Israel Obioma & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal is against the judgment of the High Court of Justice of Lagos State sitting at Ikeja Judicial Division (the Court below) whereby the 1st respondent was granted ownership of a parcel of land located at Ogombo village within Eti-Osa Local Government of Lagos State, while the counter-claim of the appellants for trespass and injunction to the same parcel of land was dismissed.

Aggrieved with the decision of the Court below, the appellant filed a notice of appeal which was amended with the leave of the Court and filed on 18-02-14 with four grounds of appeal. A brief of argument which was amended with the leave of the Court was filed on 18-02-14, but deemed properly filed on 17-10-15. Four issues were formulated for determination in the appeal in the amended brief of argument.

The first issue for determination which is said to be covered by ground 1 of the amended notice of appeal reads-

“Whether the proceedings before the Lower Court amounted to a nullity in law and consequently ought to be set aside for want of jurisdiction”.

The ground 1 of the amended notice of appeal upon which the first issue for determination is based reads –

“?The learned trial Judge erred in law when she assumed jurisdiction to entertain the claimants suit when the writ of summons (which activated the judicial power of the trial Court) together with the Statement of Claim and other frontloaded processes were neither signed by the claimants nor a legal practitioner as prescribed by the legal practitioners Act LFN 2004.

Particulars of Error

A. The Writ of Summons, Statement of Claim and other accompanying processes mandatorily required to accompany the originating process were not signed by a Legal Practitioner whose name appears on the roll of call or; someone who is capable of Signing such processes in accordance with Section 2(1) and 24 of the Legal Practitioners Act. LFN 2004.

B. By Order 3 Rule 2(1) and Order 5 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2012 read together with Sections 2 and 24 of the Legal Practitioners Act LFN 2004, the manifest defect in the Statement of Claim and other accompanying processes before the Lower Court

makes the proceedings a nullity.

C. The decisions of the Supreme Court in Okafor v. Nweke (2007) 10 NWLR (pt. 1043) and the unreported decisions of this Honourable Court in: M.I Aremu v. Wadud Ayinde Shinaba &Ors – unreported Appeal No: CAl1175/2010 delivered on the is” January 2014; Sunday Adeneye &

Anor v. Alhaji Bukar Yaro – unreported Appeal No: CAl1266/2002 delivered on the 25th day June 2010 are on all fours with the facts of the extant case.”

The cases of Okafor v. Nweke (2007) 10 NWLR (pt.1043) 521, Ogundele & Anor. vs. Agiri (2009) 12 S.C (pt 1) 13, Oketade vs. Adewunmi & Ors. (2010) 2-3 S.C (pt. 1), NNB Plc vs. Denclang Limited (2003) 4 NWLR (pt. 916) 549 at 573, Sunday Adeneye & Anor. vs. Alhaji Bukar Yaro ? Unreported Appeal No: CA/L/266/2002 delivered on 25th day June 2010, Peale Merchant Bank Ltd vs. NDIC (Unreported) Appeal No: CA/L/575/05 delivered on 14th day of May, 2010, Aremu vs. Wadud Ayinde Shinaba (Unreported) Appeal No: CA/L/1175M/2010 delivered on the 17th day of January, 2014, SLB. Consortium vs. NNPC (2011) 9 NWLR (pt. 1252) 317 at6 337-338, Edet vs. Chief of Air Staff