Ohaegbu & Ors V. Regd Trustees Of The Capuchin Friars Minor Nigeria (2022)
LAWGLOBAL HUB Lead Judgment Report
SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.
The Respondents as plaintiffs commenced an action against the Appellants at the High Court of Justice, Ikeja Division, Lagos State seeking the following reliefs:
“(i) Declaration that the plaintiffs are the owners under Yoruba native law and custom of the pieces and parcel of land situate, lying and being at Ewu Balogun, Ewu Abiye, Farmland, Igbogbo, Ikorodu Local Government Area of Lagos State and which is more particularly described in survey plan no. LAT/39/LA/2000.
A declaration that the plaintiffs are the holders of statutory customary right of occupancy in respect of the land at Ewu Balogun, Ewu Abiye, Farmland, Igbogbo, Ikorodu Local Government Area of Lagos as delineated or shown on the Survey Plan No. LAT 139/LA/2000 made by Licensed Surveyor Ademola Ashipa dated 17th January, 2000.
ii. Sum of Ten Million (10,000,000) being special and general damages, for trespass committed by the defendants, to the Plaintiffs said land.
iii. The perpetual injunction restraining the Defendants, by their agents, servants, privies themselves, whatsoever and assigns from remaining on the land or repeating or continuing their act of trespass to the land in dispute.”
At the conclusion of the trial, the learned trial Judge in his judgment granted a declaration of title in respect of EWU ABIYE in favour of the Respondents but dismissed their claim in relation to EWU BALOGUN farmland and awarded same to the Appellants.
Dissatisfied with the judgment of the trial Court, the Respondents appealed against the trial Courts dismissal of its claim on Ewu Balogun and the declaration of title granted in favour of the Appellants. The Appellants in turn filed a cross-appeal on the declaration of title on Ewu Abiye farmland granted in favour of the Respondents. The lower Court in its judgment delivered on 7/4/2009, allowed the Respondent’s appeal and consequently dismissed the Appellants Cross-Appeal.
Aggrieved by the lower Court’s decision, the Appellants appealed to this Court via an amended notice of appeal filed on 4/2/2014 containing 5 grounds of appeal. The Appellant’s brief of argument was filed on 4/2/2014, while that of the Respondents was filed on 17/4/2017.
Parties thereafter adopted and relied on their briefs of argument at the hearing of the Appeal on 16/3/2021.
The Appellants in their brief of argument formulated four issues for determination as follows:
- Whether the learned Justices of the Court of appeal were right in exercising jurisdiction over the appeal in view of the fact that the action was initiated without due regard to due process of law.
- Whether the learned Justices of Court of Appeal were right in interfering with the findings of the trial Court having regard to the circumstances of this case.
- Whether the learned Justices of Court of Appeal were right in awarding the area known as Ewu Balogun to the respondent.
- Whether the learned justices of Court of Appeal were right in holding that the test in KOJO V. BONSIE (1956) 1 WLR 1223 is not necessary having regard to the conflict in traditional evidence adduced by the parties.
The Respondents in their own brief of argument formulated four issues for determination as follows:-
- Whether the lower Court lacked competence to entertain the appeal before them.
- Whether it was not proper for the learned Justices of the Court of appeal to interfere with the findings of fact made by the trial judge and replacing it with their own.
- Whether the learned Justices of the lower Court were not right in awarding the area known as Ewu Balogun to the Respondents.
- Whether there were conflicts in the traditional evidence of the parties sufficient and enough to warrant application of the test in KOJO II VS BONSIE (1956) 1 WLR 1223.
The Respondents in their brief of argument also raised a preliminary objection particularly at pages 3 and 4, wherein they challenged the competence of ground 1 of the amended grounds of appeal for raising new issues without seeking the leave of this Court.
It is trite that where a party raises a preliminary objection to the hearing of an appeal, it is a challenge to the competence of the Court to entertain same. On this premise, it will be appropriate to first consider the preliminary objection as raised by the Respondents in order to ascertain its merit or otherwise.
Dwelling on the said preliminary objection, learned counsel for the Respondents submitted that the ground 1 of the amended grounds of appeal challenged the decision of the lower Court in not striking out the matter on the ground that the suit was not initiated by due process of law, though the issue of want of jurisdiction was not placed before the lower Court and there was no decision made on it. He added that an appeal is a challenge or attack on the decision of a lower Court therefore in other to constitute a valid and proper ground of appeal there must be a decision capable of being appealed against, and such decision must have emanated from the consideration of issues placed before the Court. On this, he relied on the case of OGUNDIYAN V. STATE (1991) 3 NWLR (PT. 181) 519 S.C and MOMODU V. MOMOH (1991) 1 NWLR (PT. 169) 608 SC.
However, the Appellants did not respond to the preliminary objection. It shall therefore be considered solely on the arguments presented by the Respondents.
Simply put, the preliminary objection is premised on the stance that ground (1) of the amended Notice of Appeal is incompetent and ought to be struck out because it was not raised at the trial Court and it is not derived from the decision of the lower Court even though it questions the jurisdiction of the lower Courts to entertain the Respondents’ claim ab initio.
It is now established by a long queue of authorities that a ground of appeal must arise from or derive from the judgment appealed against. Where therefore a ground of appeal is not based on the finding of the Court as contained in its judgment, such ground would be incompetent and liable to be struck out. The rationale is that an Appellant’s right of appeal is circumscribed within the ambit of the judgment appealed against and more particularly the ratio decidendi. See FMBN vs NDIC (1999). 2 NWLR (PT.591) 333; NKADO vs OBIANO (1997) 5 SCNJ 33; ROTIMI vs FAFORIJI (1999) 6 NWLR (PT606) 305; ILOABACHIE vs ILOABACHIE (2000) LPELR – 6939 (CA); EKUNOLA vs CBN (2013) 15 NWLR (PT.1377) 224; ASOGWA vs PDP (2013) 7 NWLR (PT.1353) 20171.
In AKPAN vs BOB (2010) 17 NWLR (PT.1223) 421, this Court per Muhammed JSC held that:-
“a ground of appeal can arise in a number of situations such as the following:- (a) from the text of the decision appeal against (ipsisimaverba); (b) from the procedure under which the claim was initiated. (c) from the procedure under which the decision was rendered; (d) from other extrinsic factors such as issue of jurisdiction of a Court from which the Appeal emanates; (e) from commission or omissions by Court from which an appeal emanates in either refusing to do what it ought to do or doing that which it ought not to do or even overdoing the act complained of.”
See also METAL CONSTRUCTION (WEST AFRICA) LTD vs D.A MIGLIORE & ORS (1990) ALL NLR 142.
In the instant case, the ground of appeal falls under category (d) in the above cited case of AKPAN vs BOB, given that it relates to a challenge on the jurisdiction of the trial Court and the lower Court to entertain the matter. Jurisdiction is said to be the pillar upon which the entire case rests. Filing an action in Court presupposes that the Court has the jurisdiction to hear and determine same. Hence the issue of jurisdiction being a fundamental issue that determines the competence of a Court to entertain any matter presented before it for adjudication, it can be raised at any stage of the proceeding in the Court of first instance or in the appellate Courts. The issue of jurisdiction can be raised by any of the parties or by the Court suo motu where there are sufficient facts on record to establish want of jurisdiction in the Court. See OLOBA vs AKEREJA(1988) 3 NWLR (PT. 84) 508, KALIO vs DANIEL KALIO (1975) 2 SC 15; BARCLAYS BANK OF NIGERIA vs CENTRAL BANK OF NIGERIA (1976) 6 SC 175; ODOFIN vs AGU (1992) 2 NWLR (PT.229) 350; GALADIMA vs TAMBAI (2000) 11 NWLR (PT. 677) page 1.
Further in ADAMA vs STATE (2017) LPER – 42266 (SC), this Court per Mary Peter-Odili JSC held at page 36 that:-
“Jurisdiction, being a matter of the threshold and life wire of adjudication cannot be toyed with but taken with the seriousness it deserves. Therefore all bottlenecks are removed for jurisdiction to be brought in the Court at any level and in whatever manner since the competence of the Court to sit on the matter before it depends on that hurdle being sealed. The reason being that a Court will not have the competence and jurisdiction to entertain an action before it unless the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
The point being made here is that ground 1 of the Notice of Appeal complained about the lack of the jurisdiction of the trial Court to in the first place hear and determine the Respondents’ claim when the originating processes are incompetent and thereby robs the Court of the jurisdiction to entertain the suit ab initio. In the circumstance, the ground of appeal is not required to be derived from or relate to the judgment of the trial Court because the whole proceeding is what is being challenged for being null and void having not been initiated in accordance with the due process of law.
Consequently, I hold that ground (1) of the amended grounds of appeal is competent. The preliminary objection is accordingly overruled and is hereby dismissed.
In the Appellant’s brief of argument, four issues are formulated for determination. Issue one stands alone while issues 2, 3 and 4 are in the alternative. I will therefore deal first with issue 1 which outcome shall determine whether or not the alternative issues will be considered.
Herein, learned counsel for the Appellants submitted that the issue of jurisdiction can be raised at any stage of the proceedings even for the first time on appeal especially where the originating processes filed and relied upon by the Court in reaching a decision is defective and by the combined provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Cap 207 Laws of the Federation of Nigeria 1990, only a person whose name is on the roll of legal practitioners is entitled or authorized to act or appear before a Court in Nigeria. He added that M. A. BASHUA & CO., is not a legal practitioner whose name is on the roll within the contemplation of the Legal Practitioners’ Act and as such cannot competently sign Court process and in consequence, any process so signed is null and void. He referred to the following cases of AMAH & ORS V. NWANKWO (2007 12 NWLR [PT. 1049] 552 AT 560; FORESTRY RESEARCH INSTITUTE OF NIG VS. MR. I. A. ENAIFOGHE GOLD (2007) 11 NWLR [PT. 1044] 1 AT 7; GEORGE & ORS V. FED REP. OF NIG. (2010) 12 NWLR [PT. 1208] 247 AT 259.
It was further submitted that since the amended writ of summons and the amended statement of claim were signed and filed by M. A. BASHUA & CO, who is not a legal practitioner within the contemplation of the Legal Practitioners Act, the Respondents action could not be said to have been initiated by due process of law having not fulfilled the condition necessary for the exercise of jurisdiction. On this, he relied on the case of OKAFOR VS. NWEKE (2007) 10 NWLR [Part 1043] 521, S.L.B. CONSORTIUM LTD VS. N.N.P.C. (2011) 9 NNLR [Part 1252] 317; MIN. W. & T. ADAMAWA STATE VS. YAKUBU (2013) 6 NWLR [Part. 1351] 481; BRAITHWAITE VS. SKYE BANK PLC (2013) 5 NWLR (Part. 1346) 1.
Arguing on their issue 1, it was submitted that an appeal before an appellate Court is initiated by the filing of a notice of appeal, which contains the ground of appeal showing the grouse or complaint of the Appellants wherein issues raised before the appellate Court must emanate from the grounds of appeal as contained in the Notice of Appeal. He added that the appellate Court does not have jurisdiction to raise and/or base the appeal on an issue not contained in the Notice of Appeal, instead the Court must first call on the parties to address it on that issue being that a Court cannot suo motu raise an issue and deliver judgment based on that issue. On this, he relied on RE OLAFISOYE (2004) ALL FWLR(PT. 198) 1106 S.C. NEKA B.B.B. MANUFACTURING CO LTD V. AFRICAN CONTINENTAL BANK LTD. (2004) ALL FWLR (PT. 198) S.C.
It was also submitted that at the lower Court, neither of the parties raised the issue of want of jurisdiction on the part of the lower Court or at the trial Court to entertain the appeal being that the law is clear that judges adjudicate on matters and issues raised before them, therefore the learned justices of the lower Court were not wrong when they heard the appeal based on the issues raised before them and there is no law which mandates judges to first probe or ask themselves whether they have jurisdiction or competence over a matter. He added that the fresh issues have not been properly raised before this Court and the appellants ought to have raised them in their ground of appeal challenging the decision of the trial Court directly, since leave of this Court had been granted to do so, instead the appellants challenged the decision of the lower Court, which was not based on want of competence even if the issue of want of jurisdiction can be raised for the first time at the Supreme Court.
Still on the principle of law, it was posited that the Appellants only relied on their briefs of argument and have not presented any fact upon which this Court can deduce from whether the writ of summons is competent or incompetent as it is only after the facts have been placed before the Court by way of affidavit that the Court can decide whether it has jurisdiction or not.
This issue borders on the competence of the entire proceedings at the trial Court culminating in the judgment appealed against, given the incompetent nature of the originating processes filed by the Respondents as claimants in the trial Court.
The position of the Appellants herein is that, since the amended writ of summons and the amended statement of claim were signed and filed by (M.A BASHUA & CO.) who is not a legal practitioner within the contemplation of the Legal Practitioners’ Act, the Respondents’ suit at the trial Court could not be said to have been initiated by due process of law, having not fulfilled the condition for the exercise of the Court’s jurisdiction.
For the Respondents, the issue of want of jurisdiction was not raised by the parties either at the trial Court or lower Court and the Courts can only adjudicate on matters and issues raised before them. Furthermore, that the issue of whether the writ of summons is competent can only be resolved where the facts are placed before the Court by way of affidavit even though the issue of want of jurisdiction can be raised at anytime.
Now dealing with the nature and scope of jurisdiction and its potency against any proceedings or decision of a Court made without jurisdiction, this Court per Niki Tobi JSC held in OKOLO & ANOR vs UNION BANK OF NIGERIA LTD (2004) 3 NWLR (PT. 859) 87 as follows:-
“Jurisdiction is the pillar upon which the entire case stands. Filling an action in a Court of law presupposes that the Court has jurisdiction. But once the defendant shows that the Court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. The case crumbles. In effect, there is no case before the Court for adjudication. The parties cannot be heard on the merit of the case. That is the end of litigation, unless the action is filed in a Court of competent jurisdiction, in which case the action is resuscitated de novo. Jurisdiction being the threshold of judicial power and judicialism and by extension extrinsic to adjudication, parties cannot by connivance, acquaintance or collusion confer jurisdiction on the Court. As a matter of law, issue of jurisdiction cannot be waived by one of the parties. This is because parties cannot conspire to vest jurisdiction in a Court when there is none.”
It is also the law that, since proceedings conducted without jurisdiction are null and void, no act of waiver, or other act that may be seen to have that effect can confer jurisdiction to validate such proceedings, vide ISHOLA vs AJIBOYE (1994) 6 NWLR (PT.352) 506; ODUTOLA vs. KAYODE (1994) 2 NWLR (PT.324) page 1.
The existence or absence of jurisdiction in the Court goes to the root of the matter and sustains or nullifies the decision of the Court in respect of the relevant subject matter. See OBIKOYA vs REGISTRAR OF COMPANIES (1975) 4 SC 31; EZOMO vs OYAKHIRE (1985) 1 NWLR (PT. 2) 195.
This sacrosanct state of the law necessitated the imperative concession to raise the issue of jurisdiction at any time or stage of the proceedings or on appeal as a substantive issue of law. Vide ONYEMA vs OPUTA(1987) 3 NWLR (PT. 60)259; BRONIK MOTORS LTD vs WEMA BANK(1983) 1 SCNLR 296; MADUKOLU vs NKEMDILIM (1962) 2 SCNLR 341.
In the instant case, what has engendered the challenge to the jurisdiction of both the trial and lower Court to entertain the matter ab initio is the discovery by the Appellants herein that the amended writ of summons and the amended statement of claim relied upon by the Respondents to commence the action at the trial Court were signed and filed by (M.A. BASHUA & CO) who is not a legal practitioner within the contemplation of the legal Practitioners Act.
The Respondents did not counter, challenge or deny this state of affairs. I have also read through the record of appeal and find it as true and correct that the amended writ of summons and the amended statement of claim were signed and filed by M.A. BASHUA & CO.
Section 2(1) of the Legal Practitioners Act provides thus:-
2(1) “Subject to the provisions of the Act, a person shall be entitled to practice as a Barrister and solicitor if and only if, his name is on the roll.
Furthermore, Section 24 of the same Act defines a legal practitioner in the following terms:-
Section 24 “In this Act, unless the context otherwise required, the following expression have the meanings hereby assigned to them respectively, that is to say “Legal Practitioner” means a person entitled in accordance with the provision of this Act to practice as a Barrister or as a Barrister and solicitor, either generally or for the purpose of any particular office or proceedings.”
More than two decades now the narrative has changed in terms of the status of documents and processes filed before the Courts and signed by persons other than a Legal Practitioner as defined in the Legal Practitioner Act. Starting with the case of EMMANUEL OKAFOR ORS vs AUGUSTINE NWEKE & ORS (2007) 10 NWLR (PT.1013) 521 OR LPELR – 2412 (SC), this Court stated the current position of the law with regards to the proper person to sign a legal process and the effect of a legal document signed/Franked by a law firm, wherein at pages 11-12 of the report it was held per Onnoghen JSC (as he then was) as follows:
“The question that follows is whether J.H.C OKOLO SAN & CO is a Legal Practitioner recognized by the law? From the submission of both Counsel, it is very clear that the answers to that question is in the negative. In other words, both senior Counsel agree that J.H.C OKOLO SAN & CO is not a legal practitioner and therefore cannot practice as such by say, filing processes in the Courts of this country. It is in recognition of this fact that accounts for the argument of learned Senior Advocate for the Applicants that to determine the actual person who signed the processes, evidence would have to be adduced which would necessarily establish the fact that the signature on top of the inscription J.HC. OKOLO SAN & CO actually belong to J.H.C. OKOLO SAN who is a legal practitioner in the roll. I had earlier stated that the law does not say that what should be the signature of the legal practitioner but his name. That apart, it is very clear that by looking at the documents, the signature which the learned Senior Advocate claiming to be his really belongs to J.H.C OKOLO SAN or was appended on its behalf. Since it signed on top of that name, since both counsel agree that J.H.C OKOLO SAN & CO is not a legal practitioner recognized by the law, it follows that the said J.H.C OKOLO SAN & CO cannot legally sign and file any process in the Courts and as such the motion an notice file on 17th, December 2005, notice of cross-appeal and applicants brief of argument in support of the said motion all signed by the firm known and called J.H.C OKOLO SAN & CO are incompetent in law particularly as the firm of J.H.C OKOLO SAN & CO is not a registered Legal Practitioner.”
Further at page 12, his Lordship noted that:-
“Legal Practitioners have formed the habit of signing Court processes in their partnership or firms name without indicating the name of the practitioner signing the process. Such documents are incompetent and are liable to be struck out, the proposed notice of cross-appeal in support of the motion were incompetent in that they were not issued by a Legal Practitioner known to law.”
Also, in amplifying the stance of this Court on the erroneous act of signing Court processes in the name of a firm of solicitors, this Court in S.L.B CONSORTIUM LTD vs NNPC (2011) 9 NWLR (PT. 1252) 317 made the point clearer at page 336 in the following terms:-
“A firm of solicitors is not competent to sign processes. The signature of Ademola Adesokan& Co., on the originating summons of the Appellants robbed the process of competence ab initio as the said firm is not a registered legal Practitioner enrolled to practice law as Barrister and solicitor in the Supreme Court. In the prevailing circumstance, all the proceedings which rested on the inchoate originating summons were deemed not to have taken place in law.”
A plethora of subsequent decisions have followed the same line of thought and reasoning to conclude that a Court process signed by a law firm and not by a Legal Practitioner whose name is enrolled to practice as a Barrister and solicitor of the Supreme Court is ab initio incompetent. Therefore any proceedings or decision based on such incompetent process is null and void. The other authorities includes:- BRAITHWAITE vs SKYE BANK PLC (2013) 5 NWLR (PT.151) 201; OKARIKA & ORS vs SAMUEL & ANOR (2013) 7 NWLR (PT 1352) 19; MINISTER OF WORKS & TRANSPORT, ADAMAWA STATE vs YAKUBU (2013) 6 NWLR (PT 1351)481; NAWIYE vs OGUNSANYA (2013) 5 NWLR (PT11348); HAMZAT & ANOR vs SANNI & ORS (2015) LPELR – 24302 (SC).
From the above cited authorities, it is now settled law that an initiating process whether writ of summon, Originating Summons, Originating Motion or Notice of Appeal must be coated with validity and competence in order to confer jurisdiction on the Court to adjudicate on matters presented before it by the parties.
In the instant case, the Amended writ of summons was found to have been signed and filed by the firm of M.A. BASHUA & CO., which is not a Legal Practitioner whose name is on the roll within the contemplation of the Legal Practitioners Act. The same goes with the amended statement of claim also signed and filed by the firm of M.A. BASHUA & CO. As earlier stated in this judgment, the combined effect of the provisions of Section 2 (1) and Section 24 of the Legal Practitioners Act is that, for a person to be qualified to practice as a Legal Practitioner, he must have his name in the roll otherwise he cannot engage in any form of legal practice in this country and this strictly includes the signing and filing of Court processes. M.A. BASHUA & CO., is not a Legal Practitioner within the definition contained in the Legal Practitioners Act.
Therefore, there is no doubt that the originating processes (amended writ of summons and amended statement of claim) prepared and signed by M.A. BASHUA & CO are incompetent as they are not known to law. This renders then the aforementioned processes null and void ab initio.
It is rather sad and unfortunate that a suit commenced since 1998 to resolve a land dispute between the parties and have gone through the process of adjudication in the trial Court, the Court of Appeal, and now in this Court spanning a period of twenty-three years shall end up a nullity due to what the law sees as an incompetent originating process. In the words of Fabiyi JSC in OKAFOR vs NWEKE (Supra):-
“The provisions of Sections 2 (1) and 24 of the Act remain the law and shall continue to be so until when same is repealed or amended.”
On this note, I hold that the amended writ of summons and amended statement of claim having been signed in the name of a law firm (M.A. BASHUA & CO) and not a Legal Practitioner within the contemplation of Section 2(1) and 24 of the Legal Practitioners Act, they are hereby declared incompetent.
This issue is accordingly resolved in favour of the Appellants and consequently put paid to further consideration of the other issues formulated in the alternative. On the whole, this appeal succeeds and it is hereby allowed.
The amended writ of summons and amended statement of claim filed by the Respondents to commence suit no. ID/2219/98 at the trial Court are hereby struck out for being incompetent.
Parties to bear their respective costs.