Mr Amidu Ishola & Ors. V. Ibadan North East Local Govt. & Anor. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU, (Delivering the Leading Judgment)

This is an appeal against the ruling of the Oyo State High Court of Justice, Ibadan Judicial Division delivered on 19th June, 2006 by Hon. Justice M.A, Adegbola in Suit No. I/282/2005.

A brief synopsis of the facts giving rise to this appeal is hereby made as follows: The appellants were allotted plots of land by the 1st respondent at Mammy market Iwo road, Ibadan for development of shops upon payment of the allocation fees. The appellants developed shops on the land allotted to them and were paying yearly rent to the respondents.

Under the terms of the allocation, the appellants are entitled to 3 or 6 months notice before their tenancy can be terminated. The respondents without serving personal notice on the appellants, issued a quit notice in the “Nigerian Tribune” newspaper of 18th January, 2005 that all allottees of plots of land at Mammy Market, Iwo Road Ibadan, must vacate the market within 30 days.

The appellants as plaintiffs by a writ of summons and statement of claim dated 1st April 2005 and signed in the name of “OLUWOLE ALUKO & Co., instituted an action in the Oyo State High Court Ibadan, to challenge the validity of the quit notice. The appellants served the respondents one month pre-action notice on 24th February, 2005, The respondents were on 11th May 2005, granted 21 days extension of time within which to file their statement of defence.

On 7th June, 2005 the respondents filed an application to strike out the substantive suit on the ground that they were not given pre-action notice under the Local Government Law 2000, The appellants on 10th June, 2005 filed an application to strike out the respondents application dated 7th June 2005 on the grounds that the Local Government Law 2000 under which the application was brought has been repealed by Local Government Law 2001, that the respondents had waived their rights and that they were duly served pre-action notice.

On 19th June, 2006 the Oyo State High Court, Ibadan held that it would hear the application of the appellants and that of the respondents together. The court on page 61 of the record, stated thus:

“As the plaintiffs’ motion filed on 10/06/05 relates closely to that of the defendants filed on 07/06/05 I will take the two applications together.

For the avoidance of doubt I hereby call on counsel either to proceed with or take a date for arguments on the defendants’ motion of 07/06/05 and plaintiffs’ motion of 10/06/05 which shall be taken together.”

Peeved and piqued by the aforementioned ruling, the appellants on 21st June, 2006 challenged same, vide a notice of appeal anchored upon three grounds of appeal. On 13th February, 2007 the appellants were granted leave by this Court to file and argue an additional ground of appeal. The additional ground of appeal was deemed duly filed and served. In strict compliance with the Rules of Court, the appellants filed their brief of argument which is dated 2nd March, 2007 and filed the same day. The respondents were by an order of Court made on 24th June, 2010 given seven days extension of time within which to file their brief of argument, subject to payment of penalty fees for the filing, However, up to the 4th day of February, 2013 the date fixed for hearing the appeal, there was no valid respondents’ brief on ground. Mr Oluwole Aluko for the appellants adopted the appellants brief and urged the Court to allow the appeal, Mr. R.A. Ogunwole SAN, leading A.A. Adewola Mrs and A.I. Idowu-Faith Miss for the respondents, stated that they were ready to proceed even without the respondents’ brief.

At this stage, the court raised a jurisdictional issue as to the competence of the appeal considering the fact that the writ of summons and the statement of claim, commencing the action in the lower court were signed in the name of “OLUWOLE ALUKO & CO” a law firm. This issue was raised in view of the decision of the Apex Court in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 and subsequent decisions along the same line, to the effect that court processes must be signed by a legal practitioner known to law and not in the name of a Law firm. Based on the foregoing, Learned Counsel for the appellants and Learned Senior Counsel for the respondents were asked to address the court on the new point raised.

Mr. Oluwole Aluko for the appellants stated that the point raised related to the application of the Rules of Court and that the Oyo State High Court Rules 2010 are not in pari materia with the Court of Appeal Rules 2011. The appellants submitted that by the aforementioned High Court Rules, a writ of summons is deemed issued once it is signed by the registrar of the High Court. The appellants contended that there is a distinction between statutory jurisdiction and procedural jurisdiction of the Court. It was argued that endorsement of documents deals with the procedural jurisdiction. The appellants posited that procedural jurisdiction can be waived under the principle of submitting to jurisdiction by filing processes after becoming aware of the irregularity. In support, reference was made to the following cases: Ogbuanyinya v. Okudo (1990) 4 NWLR (Pt. 145) 551 at 559 and 576, Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 405.

The appellants submitted that in the absence of a cross appeal on the procedural issues and irregularity at the court below, this Court cannot make finding on the irregularity. In support, reference was made to the following cases: Okunola v, Oduola (1987) 4 NWLR (Pt.64) 141 at 153, Adeleye v, Awoleye (1990) 7 NWLR (Pt.162) 337 at 345, Ajuwon v, Adeoti (1990) 2 NWLR (Pt 132) 271. It was argued that by virtue of Order 20 Rule 5(1) of the Court of Appeal Rules 2011, all the decisions of the Supreme Court by virtue of Okafor v, Nweke (supra) are now obsolete. The appellants further submitted that the facts of this case are different from those in Okafor v, Nweke (supra) and that the notice of appeal in the instant case at page 63 to 65 of the record is in order.

Mr. R. A. Ogunwole SAN for the respondents in a short reply submitted that the issue raised is not that of procedural jurisdiction, In support, reference was made to the case of S.L.B, Consortium Ltd v. N.N.P,C. (2011) 9 NWLR (Pt. 1252) 317 at 331-332 and 336. Learned Senior Counsel promised sending a latest Supreme Court decision on the point which had not been reported as at date of hearing the appeal. To date of writing this judgment, the Learned Senior Counsel has not forwarded the said law report. In a short reply, Mr. Oluwole Aluko submitted that all the cases cited are not applicable to the instant case as they deal with the interpretation of the Court of Appeal and Supreme Court Rules.