Yekini Olasupo Fatoki V. Alhaji A. O. Baruwa (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: (Delivering the Leading Judgment)

By a writ of summons dated 29/11/2000 the respondent herein as plaintiff instituted an action against the appellant before the High Court of Osun State, Osogbo Judicial Division for declaration of title, damages and injunction. By his Further Amended Statement of Claim dated 19/12/2001, he sought the following reliefs:

1. “Declaration that the plaintiff is entitled to the Statutory Right of Occupancy in respect of the piece or parcel of land situate, lying and being at Ansarudeen Community Grammar School, Oke Onigbongbo (otherwise called Onigigbongbo) off former Pauper Cemetery, Old Ikirun Road, Osogbo and more particularly described and delineated and edged RED in the Survey Plan No, OS/0823/2001/DISP/028 dated 8/3/2001 prepared by O.K. OLUOKUN Registered Surveyor.

2. The sum of N250,000.00 being general damages for trespass.

3. Perpetual injunction restraining the defendant, his agents or servants or anyone claiming through him from committing any further acts of trespass on the land in dispute.”

The parties duly filed and exchanged pleadings and the case proceeded to trial. Both parties testified on their own behalf and called one witness each. They both tendered documents. At the conclusion of the trial and after listening to the addresses of counsel, the learned Chief Judge on 22/2/05 entered judgment in the plaintiff’s favour.

Being dissatisfied with the judgment, the appellant filed a notice of appeal containing seven grounds of appeal. The parties filed and exchanged briefs of argument in compliance with the rules of this court. The appellant’s brief dated and filed on 13/6/07 was deemed properly filed on 30/10/07. He also filed a reply brief dated 22/11/07 and filed on 28/11/07. The respondent’s brief is dated 8/11/07 and filed on 9/11/07.

The appeal initially came up for hearing on 28/9/2011. On that date, M.A. SHITTU ESQ., learned counsel for the respondent orally raised the issue that the notice of appeal was signed in the name of M.O. OKEDIYA & CO. and that the appeal was therefore incompetent. The court observed that the writ of summons at pages 1 and 2 of the record and the Further Amended Statement of Claim at page 7 of the record were signed by A. AJIBOLA & CO. The appeal was adjourned to 10/11/2011 to enable both learned counsel address the court on the issue. On the said date learned counsel addressed the court accordingly. Thereafter they adopted and relied on their respective briefs of argument. Mr, Okediya urged the court to allow the appeal while Mr, Shittu urged the court to dismiss it,

I shall consider the competence of the notice of appeal and writ of summons before going into the merits of the appeal, if necessary.

Mr. Shittu submitted that the notice of appeal dated 25/2/05 was signed by M.O, OKEDIYA & CO. and that on the authority of Okafor Vs. Nweke (2007) Vol. 29 NSCQR 467 @ 486 – 487 it is incompetent. He submitted that a defective notice of appeal renders the entire appeal incompetent and the court lacks jurisdiction to entertain it.

In reply, Mr. Okediya referred to the notice of appeal at pages 83 – 86 of the record, signed by M.O. OKEDIYA, and submitted that learned counsel for the respondent failed to establish any defect therein. Relying on the case of: Agbare & Anor. Vs NIMRA & Anor. (2008) 2 SCM 55 @ 73, he submitted that the record of appeal is binding on the court and if the respondent is challenging it he has a duty to do so formally.

On the other hand he observed that the writ of summons at pages 1 – 2 of the record is signed by A. AJIBOLA & CO. and that on the authority of Okafor Vs Nweke (supra) it is incompetent, He argued that in the circumstances there was no suit before the lower court, He referred to Order 5 Rule 12(1) of the Oyo State High Court (Civil Procedure) Rules 1988 applicable in Osun State at the time the action was filed and submitted that the rule requires an endorsement of the law firm and the address for service in compliance with the requirement to provide an address for service only and not the signing of the writ of summons by a law firm. He also noted that the Further Amended Statement of Claim at pages 4 – 7 of the record was also signed by A. AJIBOLA & CO. He submitted that Order 25 Rule 4 (1) of the Oyo State (Civil Procedure) Rules requires every pleading to be signed by a legal practitioner or by the party if he is not represented. He argued that as A. AJIBOLA & CO. is not a legal practitioner recognized by law, the processes signed in the name of the firm are incompetent. He submitted that there was no statement of claim before the court upon which judgment could have been entered in this case.

In reply, Mr. Shittu argued that Okafor Vs Nweke (supra) only dealt with a defective notice of appeal and not the writ of summons. He submitted that the law that governed the filing of processes in the year 2000 was the old Oyo State (Civil Procedure) Rules 1988 applicable in Osun State. He submitted that the provisions of Order 5 Rule 12(1) are in pari materia with the provisions of Order 5 Rule 12 of the old Kwara State High Court (Civil Procedure) Rules 1989, interpreted in the recent case of David Vs Jolayemi (2011) 13 WRN 55 @ 85 lines 5 – 22 where it was held that a legal practitioner had the option to endorse the writ of summons with either his name or the name of his firm. He noted that Okafor Vs Nweke (supra) was distinguished in that case.

He also noted that the objection in Nweke’s case was raised timeously before fresh steps were taken. He submitted that in the instant case, the alleged defect was not raised before the trial court nor in the grounds of appeal and that the decision of the court was not based on it. He argued that the respondent could not be heard to complain at this stage. He referred to David Vs Jolayemi (supra) at page 89 lines 24 – 30. He submitted that the issue of jurisdiction can be based on substantive or procedural law and that while the issue of jurisdiction relating to substantive law cannot be waived, jurisdiction arising from procedural law can be waived. He referred to David Vs Jolayemi (supra) at pages 90 – 91.