The Registered Trustees Of Timber Dealers Association Aba & Ors V. Aba North Local (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of Onigbanjo J. of the High Court of Lagos State in Suit No IKD/17/2002 delivered on the 12th day of May, 2010 declaring the Respondent the rightful owner entitled to a Statutory Right of Occupancy over the disputed land.

By a Writ of Summons filed on the 19th day of February, 2002, the Respondent as Claimant sought a declaration that he was the rightful owner and entitled to statutory right of occupancy of a parcel of land situate at Aina Asoloye Street, Eleja, Ikorodu, Lagos State measuring 1006.377 square meters; perpetual injunction restraining the Appellant/Defendant from trespassing on the said Land; possession of the said parcel of Land; and the sum of N320,000.00 being special and general damages for trespass and destruction of the Claimant’s concrete block fence over the Land.

The Respondent’s case is that the parcel of Land in dispute formed part of a large tract of land belonging to the Lowa family of Ikorodu, Lagos State from time immemorial. The Respondent’s Predecessor-in-title, Alhaja Abiola Banjoko now deceased, was a member of the Lowa Family. In the course of time, the Lowa Family conducted a Survey of their large parcel of Land and partitioned the said land into plots identified as Plots A-I.

By Deed of Conveyance dated 10th March, 1978 and registered as 16/16/1708 at the Lands Registry Lagos State, the accredited Legal Representatives of the Lowa Family granted the Respondent’s Predecessor-in-title the plot known as Plot F in the large parcel of Land belonging to the Lowa Family. On the 23rd of June, 2000, the Respondent’s Predecessor-in-title transferred her entire rights and interest in Plot F to the Respondent. The Respondent proceeded to fence Plot F with block wall, which was subsequently pulled down and destroyed by the Appellant.

In its 3rd Amended Statement of Defence dated 21/01/10, the Appellant contended that it purchased the same piece of Land from the accredited Representatives of the same Lowa Family of Ikorodu on or about the 27th of November, 1981. The Appellant stated that it also purchased another parcel of Land beside the Land in dispute on which it erected its Auditorium while it used the Land in dispute for parking and open air services. The Appellant insists that it had been using the parcel of land in dispute since 1981 until 2001 when the Respondent began to lay claim to it.

At the conclusion of the trial, the Learned Trial Judge entered judgment partially in favour of the Respondent by declaring the Respondent the rightful owner entitled to a Statutory Right of occupancy over the parcel of Land; granting a perpetual injunction restraining the Defendant from trespassing on the said Land; granting the Respondent exclusive possession of the said parcel of Land forthwith; and the sum of N270,000.00 general damages for the Appellant’s admitted destruction of the Claimant’s concrete block fence. The Learned Trial Judge however refused to grant the Claimant’s claim for special damages and the claim for the cost of the action.

The Appellant, dissatisfied with the Judgment, has appealed to this court on 7 grounds. In his brief of argument, learned counsel for the appellant first raised a preliminary objection that the lower court had no jurisdiction to entertain the suit as the writ of summons was signed by a law firm. In the alternative, out of the 7 grounds of appeal, counsel formulated three issues for determination.

I shall go straight ahead to consider the preliminary objection. The Appellant is challenging the validity of the Originating Processes viz the Writ of Summons and the Statement of Claim on the ground that the said processes were signed by an entity that was neither the Respondent nor a duly registered Legal Practitioner contrary to the requirements of Order 6 Rule 2(2) of the High Court of Lagos State (Civil Procedure) Rules 1994 which provides that Originating Processes shall be signed by a Legal Practitioner or the Plaintiff himself where he sues in person. It is the submission of the Appellant that pursuant to Section 2(1) of the Legal Practitioners Act as amended, “… a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is in the roll”.

Learned Counsel further submitted that Section 24 of the Legal Practitioners Act as amended defines a Legal Practitioner as …”a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor; either generally or for the purposes of any particular office or proceedings”. Counsel argued therefore that only human beings called to the Bar can sign documents and that any process signed by a Law Firm, not being a Legal Practitioner is incompetent. In support of his argument, Learned Counsel referred this Court to the following Supreme Court cases: Okafor v Nweke (2007) 10 NWLR (Pt.1043) 521 @ 531-532; Oketade v Adewunmi (2010) 8 NWLR (Pt.1195) 63 @ 74 81 and 82; SLB Consortium Ltd v Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt.1252) 317.

Learned counsel for the Respondent while admitting that the omission to endorse his name on the Writ of Summons and Statement of Claim is contrary to the combined effect of Order 4 Rule 10 and Order 6 Rule 2(2) of the High Court of Lagos State (Civil Procedure) Rules 1994, contended that the said omission is only an irregularity which should not nullify the proceedings of the Lower Court and the judgment entered therein. In support of his argument, Counsel referred this Court to Order 5 Rule 1(1) of the High Court of Lagos State (Civil Procedure) Rules 1994 which provides that “Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceeding, there has been by reason of anything done or left undone, a failure to comply with the requirements of these rules whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein”.

It is the submission of Learned Counsel that the omission of the Counsel to the Respondent to endorse his name on the Writ of Summons and Statement of Claim is an irregularity which is protected by Order 5 Rule 1(1) of the High Court of Lagos State (Civil Procedure) Rules 1994. In support of his submission, Counsel cited the Supreme Court case of D.A. Faseun & Ors (1967) N.M.L.R. 66 where the Apex Court posited that

“The omission to indorse the name and address of a legal practitioner on the Writ as required by these Rules is however, an irregularity only and does not affect the substance of the Suit”.

Learned Counsel also submitted that the Appellant cannot properly challenge on appeal, the competence of the Writ of Summons and Statement of Claim filed by the Respondent at the Lower Court 10 years ago and that the Appellant’s Preliminary Objection ought to have been raised at the Lower Court. In support of his submission, Counsel referred this Court to the provision of Order 5 Rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules 1994 which provides that an application to set aside proceedings for irregularity should be made within reasonable time and before the party applying has taken fresh steps after becoming aware of the irregularity. Counsel referred the Court to its decision in Adams v Umar 2009) 5 NWLR (Pt.1133) 41 @ 116 to the effect that “… where the wrong procedure was adopted in commencing a suit and no objection to the procedure was timeously raised by the opposing party, the proceeding based on such wrong procedure is valid’. This Court held further in the above case that “once a step is taken in a proceeding, by a party complaining about the breach of the rules of court, he is said to have waived the breach”.