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:
“2(1) Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.”
- ‘Legal Practitioner’ means a person entitled in accordance with the provisions of this Act to practice as a barrister or a barrister and solicitor, either generally or for the purpose of any particular office or proceedings.”
It does not appear that counsel for the appellant has an answer for the objection. There is a big legal difference between the name of a firm of legal practitioner and the name of a legal practitioner simplicter. While the name of OLUJIMI AND AKEREDOLU is a firm with some corporate existence, the name of a Legal Practitioner is a name qua Solicitor and Advocate of the Supreme Court of Nigeria which has no corporate connotation. As both carry different legal entities in our jurisprudence of parties, one cannot be a substitute for the other because they are not synonyms. It is clear that OLUJIMI AND AKEREDOLU is not a name of a legal Practitioner in Nigeria. I say this because there is no such name in the roll of legal Practitioner and that violates 2(1) and 24 of the Legal Practitioner Act. By section 2(1) of the Act, the only person in the profession wearing his professional name to practice law in Nigeria is a Legal Practitioner in section 24 of the Act does not include OLUJIMI AND AKEREDOLU. This, to me, is not a mere technicality that can be brushed aside. It is fundamental to the judicial process as it directly affects the legal processes that brought the case on appeal.
I am in entire agreement with counsel for the respondent that as the processes which brought the appeals are incompetent, the appeal itself is incompetent. He has correctly invoked the case of Macfoy v. UAC (2006) 16 WRN 185 and NNB Plc v. Denclag Ltd. (2003) 4 NWLR (Pt.916) 549 at 573.
In the light of the above, the appeal has no props to stand and I do not have the option than to dismiss the appeal and I dismiss it.
In the most unlikely event that I am wrong, I go further to take the merit of the appeal, for whatever that exercise is worth. What is the real quarrel in this appeal A landlord has an unfettered legal right to terminate a tenancy upon giving adequate notice. After all, the property is his and he can at any time retrieve it subject to the conditions in the agreement. Once he abides by the provisions of the tenancy agreement, the tenant has no choice than to vacate possession. The position of the law is very clear. It is almost like the day and the night changing places. What usually brings problems between a landlord and a tenant is the giving of adequate notice. What constitutes adequate notice is spelt out in the lease or tenancy agreement. In other words, the landlord must give the tenant the quit notice as provided in the tenancy agreement. If the tenant refuses to quit, a court of law can, on an action by the landlord, force him out of the premises. That, I think, was what the Magistrates Court did but the appellant will not take the decision of the Magistrate for an answer and that has taken this matter inordinately for fourteen years plus.
The appellant has moved to three more courts in his dogged effort to remain permanently glued to the property, if I may use that expression unguardedly. And so he pushed all sorts of processes to the court to ensure that he remains there, perhaps in perpetuity. Why Is he the owner of the property Can the appellant really deny the allodial right of the owner on the property I do not think so.
The appellant has done so mush to deny the respondent his right to the property. After the judgment of the High Court, he obtained a stay of execution of the judgment. Dissatisfied, the respondent went to the Court of Appeal challenging the order of the High Court to stay the execution of the judgment of the Magistrate’s Court. The Court of Appeal ordered the appellant to pack out of the premises. The appellant is not deterred. Rather, he is determined and his determination to keep the property in perpetuity perhaps has made him come to us. Why and why, I ask Is he the owner of the property Why is he so adamant The appellant’s bluff and use of the court process must stop, whether he likes it or not. And it must stop today because I cannot see how a tenant will struggle for supremacy or hegemony over a property that he did not build. I do not blame the appellant, but I blame the law that has given the appellant such a latitude and effrontery to use the processes of the court to stay on a property he does not own for a period of fourteen years. This looks to me as a typical example of the aphorism or clich’E9 that the law is at times an ass. I must quickly remove the ass content in the law and face the reality of the law. So be it.
In sum, I order that the appellant must vacate possession within three months from the date of this judgment. I order consequentially that he pays all the rents due up to the date of his vacating possession to the respondent. I award N50,000.00 cost in favour of the respondents.
SC.78/2001