Mrs Olayinka Adewunmi & Ors. V. Mr Amos Oketade (2010)

LAWGLOBAL HUB Lead Judgment Report

Niki Tobi, JSC

This case has moved full circle. It started in the Magistrate’s Court and it is ending in the Supreme Court, thus passing through four courts: Magistrate’s Court, High Court, Court of Appeal and Supreme court. The litigation is on an apparently little matter. It involves landlord and tenant. It is tenancy of a small apartment situate at No. 2 Irawo Lane, Agbowo, Ibadan.

The learned Chief Magistrate, in his judgment, directed the appellant to give up possession to the plaintiffs/respondent within three weeks. The judgment was delivered on 31st May, 1994, some fourteen years ago.

The appellant filled an application in the Magistrate’s Court for stay of execution, which was refused. A similar application to the High Court was granted. Dissatisfied with the Ruling of the High Court, the appellant filed an appeal and a motion for stay of execution in the court of Appeal. On 22nd January, 2001, the court of Appeal ordered the appellant to pack out of the premises, the subject matter of the appeal and the application before that court. The appellant filed an application against the order of the Court of Appeal and a motion for stay of execution. On 24th January, 2001, the Court of Appeal adjourned all the pending applications to 8th March, 2001. The Court took all the pending applications including the substantive application for stay of execution filed by the respondent. The court of Appeal granted the prayers of the respondents. This appeal is on that Ruling.

Briefs were filed and duly exchanged. The appellant has formulated the following two issues for determination:

“(i) whether the lower court had jurisdiction to make interlocutory order which are(sic) similar and akin to final order and determination of the substantive appeal yet to be heard before them.

(ii) Whether an award of cost can be made without hearing the parties on issues of cost.”

The respondent has also formulated the following two issues for determination:

“(i) Whether the lower court had power or jurisdiction to make the orders of 8th March, 2001.

(ii) Was the award of N5,000 (five thousand naira) cost properly made by the lower court

Learned counsel for the appellant, Mr. Olujimi Akeredolu submitted on issue 1 that it was wrong in law for a court of law to reach final decision in an interlocutory matter. He submitted on issue 2 that the court was wrong in awarding costs without hearing from the parties.

Learned counsel for the respondent, Mr. Idowu Alabi, raised a preliminary objection that the appeal is incompetent. Taking the merits of the appeal, learned counsel submitted that the court did not decide the substantive appeal at the interlocutory stage. He also submitted that the award of N5,000.00 cost against the appellant was not punitive.

Let me take the preliminary objection first. It is objection that the entire application is incompetent in that both the Notice of Appeal and the appellant’s Briefs of Argument were not issued by a legal practitioner known to law. Learned counsel for the respondent relied on section 74(1)of the Evidence Act, the cases of SPDC (Nig.) Plc v. Din (2007) 2 NWLR )Pt.1019) 438 at 462; NBA v.Chukwumeife (2001) 8 NWLR (Pt.1035) 221; Fawehinmi v. President, FRC (2007) 14 NWLR (Pt.1058) and Okafor v.Nweke (2007) 10 NWLR (Pt.1043) 521.

Learned counsel called the attention of the court to OLUJIMI AND AKEREDOLU and submitted that it being a name of a firm and not a name of a legal practitioner, offends sections 2 (1) and 24 of the Legal Practitioners Act. The sections provide as follows: