Ashiru Adegoroye & Ors V. Attorney-general of Osun State & Ors (2016)
LawGlobal-Hub Lead Judgment Report
MOHAMMED AMBI-USI DANJUMA, J.C.A.
The appellants herein were by motion on notice dated the 18th day of March, 2008 and filed on 20th day of March, 2008 granted leave on the 27th day of October, 2008 for :-
1. Extension of time within which to apply for leave to appeal
2. Leave to appeal and
3. Extension of time within which to file notice of appeal and grounds of appeal against the judgment of the High Court of Osun State, Iwo Judicial Division delivered on the 30th of November, 2005.
Upon the filing of the notice and grounds of appeal, the parties filed and exchanged the necessary processes after the due transmission and service of the record of appeal.
The appellants brief of argument came in pursuant to leave granted on 8-4-2009 on motion of 24th of January, 2009 which was filed on 26-1-2009. Brief of the said appellants dated 24-1-2009 and filed 26-1-2009 was deemed filed on 8-4-2009.
The 1st and 2nd respondents were granted leave on 19-1-2016 and the 5th and 6th respondents on 14 – 4 -2016 to file their briefs. All filed their briefs of argument out of time by leave of Court
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granted as indicated.
Appellants were also granted leave on 14 – 4 -2016 vide their motion filed 16-2-2016 to file the appellants’ reply brief out of time. At the hearing, the 5th and 6th respondents by their learned counsel on the 14 – 4 -2016 moved a motion for the amendment of their 5th and 6th respondents’ brief of argument; and the application was granted and the brief deemed filed on the said 14 – 4 – 2016 accordingly. lt was initially filed on 18 – 2 – 2013.
The relevant processes for the determination of this appeal are the followings:
1. The appellants’ brief of argument filed 26-1-2009 but deemed filed on 8 -4- 2009.
2. The 1st and 2nd respondents brief of argument filed on 27 -2 -2014 but deemed filed on 19 – 1 – 2016 and incorporating a notice of preliminary objection which had been filed on 27-2-2014.
The 5th and 6th respondents brief of argument incorporating arguments on preliminary objection had also been distinctly filed and separately on 23-1-2013. The appellants had also filed an appellants reply brief of argument.
FACTS OF THE CASE AT THE TRIAL COURT
1.1. The plaintiffs by
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a writ of summons dated and filed on the 28th day of January, 2003 commenced an action in suit No. HIW/4/2003 over a chieftaincy dispute relating to the vacant stool of Oluwo-Oke of Iwo Oke which said stool became vacant after the demise of Oba Busari Salawu Majoyeogbe in the year 2001.
1.2. The plaintiffs filed their statement of claim on the 5th day of February, 2003 and this was amended and filed on 12th November, 2003. By the amended statement of claim, the plaintiffs claimed against the defendants as follows:
(a) Declaration that in accordance with lwo Oke Customary Law, there are 2 Ruling Houses of the Oluwo – Oke Chieftaincy title, namely Ojo Adegbenle and Akadiri Ruling Houses of lwo – Oke in Ola Oluwa Local Government Area of Osun State and each of these Ruling Houses produce the Oluwo Oke of lwo – Oke in rotation.
(b) Declaration that in accordance with the said Iwo-Oke Chieftaincy Law, it is the turn of Ojo Adegbenle Ruling Houses (the plaintiffs Ruling Houses) to provide candidate to fill the present vacancy in the stool.
(c) Declaration that the 3rd plaintiff, having been nominated by the plaintiffs Ruling
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House, is rightful person entitled to be appointed and installed to fill the present vacancy in the stool according to the customary law.
(d) Declaration that under the said customary law of Iwo-Oke, Lawani Adeoye Family of Iwo-Oke (5th and 6th defendants family) is not a Ruling house of the Oluwo-Oke Chieftaincy, hence it is not entitled to provide candidate to fill the vacant stool of Oluwo-Oke.
(e) Declaration that the 4th defendant as he prescribed authority for the Oluwo – Oke chieftaincy lacks the power to appoint or approve the appointment or selection of candidate to fill the vacant stool of the Ruling Houses except Ojo Adegbenle Ruling Houses under the customary law of lwo – Oke.
(f) Injunction restraining the 1st and 2nd defendants, their servants or agents from recommending to or directing the 3rd and 4th defendants to appoint and/or install the 6th defendant or any person from Lawani Adeoye family of lwo – Oke to fill vacant stool.
(g) Injunction restraining the 4th defendant, his servant or agent from appointing or approving the appointment or selection of the 6th defendant or any person from Lawani Adeoye Family of Iwo-Oke to
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fill the present vacant stool.
(g) Injunction restraining the 4th defendant, his servant or agent from appointing or approving the appointment or selection of the 6th defendant or any person from Lawani Adeoye Family of Iwo-Oke to fill the vacant stool of Oluwo-Oke of Iwo-Oke.
1.3 They also traced their genealogy and averred that upon the demise of Oba Busari Majeoyeogbe from Akadiri Adeyemi family, it is now the turn of the plaintiffs family to present/nominate the next Oluwo-Oke elect.
1.4 All the defendants filed their statement of defence. The 1st and 2nd defendants statement of defence was filed on the 31st July, 2003 while the 3rd defendant filed his defence on the 4th day of August, 2003. The 4th defendant filed his defence on the 27th October 2003 which was amended on the 10th day of May, 2005 while the 5th and 6th defendants filed their defence on the 16th June, 2003 which was later amended by the order of Court by a further, further amended statement of defence on the 21st day of March, 2005. The plaintiffs filed a reply and a further amended reply dated 26th April, 2005, five witnesses testified for the defendants. A
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number of documents were tendered as exhibits.
1.5. That case of the 5th and 6th defendants is that their fore father, Tolu Oyeji was the founder of lwo Oke and he was the 1st king to reign in lwo – Oke before the Fulani war Adeoye was on the throne when the Fulani war sacked lwo – Oke. He was succeeded by Oyemakinde Akande who conferred the princely chieftaincy title of Momimi on his co – contestant, Oyetunbi Adeoye from the 6th defendant’s family. Oyemakinde Akande was succeeded by Bello Oyekanmi who conferred the princely title to Moluberin (head of all the princes) on Lawani Adeoye from the 6th defendant’s family. The defendants pleaded and proved at the trial that since time immemorial and infact the result of the enquiry conducted by late Oba Abimbola, then Oluwo of Iwo, showed clearly that there are two Ruling Houses in Iwo-Oke ie Ojo Akandiri and Lawani Adeoye Ruling Houses.
1.6. Also, the outcome of the inquiry conducted in 1976. (Exhibit H) which was done by the 3rd defendant showed that there are two Ruling Houses eligible to the Oluwo – Oke stool, which are the Lawani Adeoye and Ojo Akandiri Ruling Houses. The enquiry conducted on
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the 26th June, 2001 by the Ola – Oluwa chieftaincy committee chairman by the 4th defendant also showed that Lawani Adeoye is a Ruling House in lwo – Oke.
1.7. At the conclusion of trial Court after an exhaustive evaluation of the facts of the case dismissed the appellants’ case in its entirely, hence this appeal.
The issues for determination as formulated by the appellants’ learned counsel are thus;-
3.01 Whether or not the plaintiffs have discharged the onus of proof that succession to Oluwo – Oke Chieftaincy is exclusively between two Royal Families -Akadire Adeyemo and Ojo Adegbenle Ruling Houses
3.02 Whether the plaintiffs have waived their right that occurred at the time the stool became vacant after the death of Bello Oyekanmi as to disqualify them to present their candidate to succeed Bosari Moyoyeagbe(deceased)
3.03 Whether the learned trial judge was right when he held that it is the turn of Lawani Adeoye Ruling House to provide the next candidate to fill the vacant stool of Oluwo-Oke Iwo Oke.
Arguing its issue No. 1 the learned counsel for the appellants quoted profusely the evidence led on both sides and in
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particular by the plaintiffs witnesses and submitted that the trial judge was wrong in his decision. That there were only two Ruling Houses. That the issue number one should be resolved in favour of the appellant.
On the second issue, which relates to waiver, it was contended that the appellants had not waived their right to present any candidate. That their right crystallized upon the death of Oba Majoyeogbe; that no waiver had been proved and more so that the respondents did not raise it in any of their pleadings.
Drawing from Blacks’ Law Dictionary, Eight Edition where waiver is defined as:
“The intentional relinquishment by a waiver, drawer or other
obligator under a contract of the right to ascent against the assignee any claims or defences the obligator has against the assignor”.
And Obi v.INEC (2007) 11 NWLR (pt. 1046), page 456 at 489 Paraqraphs B-C where waiver is defined as waiver is the intentional or voluntary relinquishment of a known right. See also. Ariori v. Elemo (1983) 1 SCNJ page 1 at 13.
On the 3rd issue, the learned counsel of the appellants had argued that the trial judge was in
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error to have veered off into holding that there were 3(three) ruling houses and to have proceeded to grant a relief to the respondent when they did not claim any. That the respondents did not counter claim for a relief. Arguing that a Court has no jurisdiction to grant a relief not claimed, the cases of Fatunbi v. Olaloye (2004) 6-7 SC 68 at 86; Etaja v. Ologbo (2007) 16 NWLR 554 at page 588 paragraphs A-D were relied upon and this Court was to resolve the issue No. 3 in favour of the appellants, And to ultimately allow the appeal on the following grounds:
1. The appellants have discharged the onus of proof that there are only two Ruling Houses entitled to the Chieftaincy stool of Oluwo – Oke of lwo – Oke, to wit: Ojo Adegbenle and Akadiri Adeyemi Ruling Houses.
2.That Lawani Adeoye has no blood relationship with the two Ruling Houses.
3. That the 5th and 6th respondents’ ancestor never reigned after the Fulani war.
4. That the 5th and 6th respondents never reigned after the Fulani war in period of more than 200 years.
5. Exhibits H, M and G were wrongfully admitted as exhibits and they should be expunged from the records.
6. The
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learned trial judge wrongly decided on the issue of waiver which parties never pleaded.
7. The Court is without jurisdiction to grant a relief not claimed.
8. The evidence was not put on imaginary scale of justice to decide which weighs more nor in accordance with the number of witnesses but from credible evidence on record.
9. The principle of law applied in Kojo v. Bonsie is not applicable to this case, having regard to all the circumstances of this case.
On their part, the 1st and 2nd respondents had by notice of preliminary objection filed pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011 and under the inherent jurisdiction of the honourable Court and filed 27 -2-2014 contended thus:-
NOTICE OF PRELIMINARY OBJECTION PURSUANT TO ORDER 10 RULE 1 OF THE COURT OF APPEAL RULES. 2011 AND INHERENT JURISDICTION OF THIS HONOURABLE COURT
Take notice that the lst and 2nd respondents will by way of objection urge this honourable Court to strike out the appellants’ brief of argument dated 24th January, 2008 and filed on 26th January, 2009 and dismiss the appeal for being incompetent in law.
And take further notice that
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the grounds of the objection are stated beneath and that the argument has already been incorporated in the 1st and 2nd respondents’ brief of argument. Humbly refer the Court to paragraph 2.0-3.5 of the respondents brief of argument.
THE GROUNDS OF THE PRELIMINARY OBJECTION
1. All the Court processes filed by the plaintiffs, particularly the writ of summons and the amended statement of claim, are incompetent in law having been signed/filed by the law firm of Ajibola & Co. instead of being signed by a person recognized by the legal practitioners Act.
2. The plaintiffs/appellants did not exhaust the requisite administrative remedy lies as mandated by the provisions of Section 19&20 of the Chiefs Law of Osun State before the institution of the suit.
3. The plaintiffs/appellants’ suit is statute – barred, more so for non – compliance with the provisions of the Public Officers Protection Act, Laws of the Federation of Nigeria, 2004 which is in pari material with the Public Officers Protection Law of Osun State Cap 137 of Osun State 2002 particularly Section 2(a) thereof.
The plaintiffs’/appellants’ suit, (particularly the
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relief) is incompetent and not grantable in law. Dated on the 12th day of December, 2013.
The said preliminary objection is incorporated at paragraphs 2.0 – 2. 9 of the 1st and 2nd respondents’ brief of argument. At the hearing of this appeal, the respondents adopted the said objection as argued and urged this Court to strike out the appeal.
Their learned counsel had contended that a look at the processes filed at the trial Court and in particular the writ and the amended statement of claim were signed by Ajibola and Co. instead of being signed by a legal practitioner as stipulated by the mandatory provisions of the legal practitioners Act.
THAT A NON-JURISTIC PERSON CANNOT SUE OR BE SUED AND THAT ONLY A PERSON KNOWN TO LAW CAN initiate an action in Court. The cases of New Nigeria Bank Plc vs. Denclag Ltd. 92005 4 NWLR (pt 916) pages 549-616 ratio 1 at 555-556; Okafor & Ors v. Nweke & Ors. (2007) 5 SCM, 180-192, were referred. It was also submitted that a fundamentally defective document cannot be cured by an amendment of same. Nwaigwe & Ors. V. Okere (2008) 8 SCM. pages 128 – 156 ratio 7 pages 133 – 134 were referred to; that the
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plaintiffs case at the trial Court had no foundation to rest upon and, therefore, could not stand
It was contended that though the plaintiffs/appellants had the right to choose any legal representative of their choice, but such a person must not be under a legal disability in that he must have been enrolled to practice law in Nigeria as a Barrister. In support, the case of Chief Obafemi Awolowo V. Mallam Usman Sarki & Anr. (1966) ALL NLR 171 – 173 was relied upon.
Relying on Section 122(9)(i)(j) of the Evidence Act which enjoins the Court to take judicial notice of all legal practitioners authorized by law to appear or act before it and the provisions of Order 1 Rule 5 of the Court of Appeal Rules, 2011 which defines a legal representative to mean a person admitted to practice in the Supreme Court who has been retained by or assigned to a party to represent him in the proceedings before the Court.
Counsel said the law firm of Ajibola & Co. is not a legal practitioner authorized by law to appear or act before the Supreme Court on Nigeria under Section 2(1) and 24 of the Legal Practitioners Act, Cap 207 Laws of the
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Federation of Nigeria, 1990. That the law firm could not validly sign or issue the originating processes of writ as it did in this case on appeal, as it is not an entity known to the Legal Practitioners Act.
That the foundation of the claim was defective and so no claim could be made. Mcfoy v. UAC Ltd.(1962) A 150 relied upon Mrs Olayinka Adewunmi 7 Ors v. Mr. Amos Oketade (2010) 4 SCM 1 at 7 ratio 1 paragraphs B-G where Olujimi & Akeredolu was held not to be a legal practitioner on the roll of legal practitioners with the Supreme Court and could not sign documents or practice as such was relied upon.
The unreported decision of this Court in Chief M. Ola V. Bura CA/l/36/2004 delivered on 28th May, 2009 was also relied on. lt was further contended that the internal administrative machinery was not exhausted before going to Court contrary to the Chiefs Law of Osun State that provided in Section 4 thereof that the Chieftaincy Committee of the Chiefs is the competent/appropriate authority to determine the customary law in respect of a recognized chieftaincy and when dissatisfied, an aggrieved person is to petition the Governor on such appointment;
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that this is a mandatory provision of the Chiefs Law which have been held to constitute administrative remedies which must first be exhausted before any action can be taken in Court.
That there was no pleadings indicating that the plaintiffs exhausted this remedy upon being aware of the selection and appointment of the 6th respondent Daramola v. The Government of Osun State (2003) 14 NWLR (pt.839) page 194 at 214 ratio 3 relied upon.
Also relied upon were the cases of Adigun v. Osake(2003) 5 NWLR (pt. 812) page 105-106; Adesola v. Abidoye (1999) 14 NWLR (pt.637) 28 at 56; Eguamewensa v. Amaghizenwen (1993) 9 NWLR (pt.315) 1 at 25; Aribisala v. Ogunyemi (2005) ALL FWLR (pt. 252) 45 and Bamisile v. Osasuyi(2008) ALL FWLR Page 1300-1348.
That the plaintiffs not having shown that they complied with the administrative remedies available in the Chiefs Law of Osun State, particularly Sections 19 and 20 thereof they do not have a competent case having not complied with the conditions precedent to the institution of their case.
It was also argued that the last holder of the stool in contest died in the year 2001. He was Oba Majeoyegbe. That
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the plaintiff averred in paragraph 26 of their statement of claim that upon the death of the said Oba Mejeoyeagbe, they made their nomination and presented same to the 4th defendant but were told point blank that the Lawani Adeoye Family were entitled to contest the vacant stool.
That they filed their suit on 28th of January, 2003, a period of about 13 years after the accrual of the action. Counsel submitted that in a chieftaincy case, the cause of action accrue when the last holder of the office dies.
Lipade v. Sonekan (1995) 1 NWLR (pt.374) page 575 at 690 ratio 6 refers. It was held thus; “By the mandatory provisions of Section 261 the Public Officers Protection Law, Cap 137 Laws of Osun State which is an existing Law, the plaintiffs case is statute barred having failed to be commenced within the 3 months. See the case of British Airways v. Akinyosoye (1995) 1 NWLR (pt. 374) page 724 at 730- ratios 2&3. The plaintiffs case is therefore incompetent in law.”
That the proper procedure that ought to have been taken is as laid down by the Supreme Court in Amaghizenwen (supra) where in the apex Court held at pages 10-11 thus:
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In the instant case, the respondents who was aggrieved by the decision might have brought a suit for the issuance of certiorari; to bring the order made by one Oba into the High Court for the purpose of being quashed, the act complained of being in the nature of a quasi – judicial Act, or he might have gone on appeal to the executive council as enacted by the relevant statute Section 22 (1) (a) and 2 (b) of the Traditional Rulers and Chiefs Edict, No. 16 of Bendel State, 1979 by bringing an action for declaration instead of taking either of the two steps enumerated above, he took the wrong steps which affected the jurisdiction of the High Court, ab initio.
It was therefore submitted that the plaintiffs’ reliefs were not grantable in law. Aside the objection, the learned counsel postulated a sole issue to wit:
Whether the trial Court was not right in dismissing the plaintiff’s suit in its entirety for failure to prove the reliefs sought against the defendant.
Arguing this issue, the learned counsel submitted that the plaintiffs had the burden of proving the live issues in the case.
He relied on Section 135-137 of the Evidence Act
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and the Supreme Court case of Archibong v Ita (2004) at paragraph 595-596, at pages 618-619. In this wise, it was submitted that the plaintiffs had the burden of proving the followings:
i. The appropriate customary law regulating appointment into the stool of Oluwo-Oke.
ii. That under the appropriate customary law regulating the appointment into the vacant stool of Oluwo-Oke, the Plaintiffs family is the one entitled to select/nominate the next Oluwo-Oke.
iii. That the 5th and 6th defendants’ family (Lawani Adeoye Family) is not a ruling house recognized under the acceptable customary law to produce the next Oluwo _ Oke.
iv. That they have (before instituting the case at the lower Court) complied with the conditions necessary to be fulfilled as laid down in the case of Madukolu V. Nkemdilin (1962) 2 SCNLR 341 referred in the case of Adeigun V. Osaka (2003) 5 NWLR (Pt. 812) paqe 10 – 6 – 107.
That the plaintiffs had not proved of those issues enumerated supra.
The case of Daramola v. The Governor of Osun State(2003) 14 NWLR (pt. 839) Page 195 at 214 where this Court held thus:
A party who alleges custom of a
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particular community cannot rely on his evidence alone but must have cogent, reliable and credible evidence of witnesses of those who hail from that community in order to show that the community regards the custom as binding on them. In the instant case, the PW2 called by the appellants to prove their claim to the Ota-Ile Chieftaincy failed to give evidence in support of the appellants case but rather that he had never heard it in history that Elemo and Enigbo Families had ever produced any Olotan of Otan-Ile.
It was argued that the plaintiff dd not prove the customary law of succession; that it was Balogun of Iwo-Oke who was not related to the Lawani Adeoye Family that gave evidence that the Lawani Adeoye Family was part of the ruling houses in lwo – Oke.
That it was the Olowu – Ate of lwo – Ate who confirmed the case of the 5th – 6th defendants. That the findings of the trial Court on the existence of a third ruling house of Lawani Adeoye family was supported by evidence led; and the appellants had not led any evidence to the contrary.
He urged that the finding was appropriate and relied on Oladoye V. Military Administrator
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of Osun State (1996) 10 NWLR (Pt. 476) Page 43 at 611 where the Court made a finding that there was a third ruling house to the bale of ljomoba chieftaincy.
Counsel pointed out that the plaintiffs had, in their statement of claim of 5th of February, 2003 pleaded (at paragraph 23 thereof) that the 5th – 6th defendants families had contested the stool in 1955 and wondered why they turned somersault in their amended statement of claim of 12th of November, 2003 to deny same.
The learned counsel wondered why the suit was not filed challenging the Lawani Adeoye’s family until 48 years after. That there was so much evidence in support of the Lawani Adeoye family, submitted that the Exhibits E&F which are receipts for monies paid for the towns development showed that paragraph 24 of the amended statement of claim that the Lawani Adeoye family did not contribute was a tissue of lies and amounted to the plaintiff probating and reprobating.
That the material contradictions in the plaintiffs case extended to the evidence that the Lawani Adeoye family were the custodian of the towns major deity Orisapopo Afimojo and yet testifying
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that they were total strangers in the community.
Counsel urged that parties must be consistent in their pleadings and evidence and wondered how a stranger could be the custodian of a town’s deity. British Airway Plc. V. Akinyosoye (1995) NWLR (Pt. 374) page 726 at 732 ratio 9 where the Supreme Court held;
“A party should be consistent in stating his case and consistent in proving if. This is so because justice is not interested in scoring debating points. Thus, party cannot make one case in his sworn testimony and hope to win his case …..”
It was finally urged that declaratory reliefs are not granted on default of defence or even on admission of pleadings. That plaintiffs must prove their case and that it has not been so proved in the instant matter on appeal and the case ought be dismissed.
The 5th – 6th respondents on their part also filed a notice of objection thus:
NOTICE OF THE 5TH AND 6TH RESPONDENTS OF INTENTION TO RELY UPON PRELIMINARY OBJECTION PURSUANT TO ORDER 10 RULE 1 COURT OF APPEAL RULES, 2011.
Take notice that the 5th and 6th respondents herein named intend, at the hearing of this appeal to rely upon the following
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preliminary objection notice whereof as hereby given to you viz:
And take notice that the grounds of the said objection are as follows:
1. That writ of summons initiating this action and the accompanying statement of claim on pages 2-8 of the record of appeal are signed by a law firm instead of an individual person or legal practitioner within the meaning of Section 2(1) and 24 of the Legal Practitioners Act.
2. The amended statement of claim on pages 31 – 36 of the records of appeal is equally signed by a law firm and not an individual person or legal practitioner with the meaning of Sections 2(1) and 24 of the Legal Practitioners Act.
3. The signatures on the said processes failed to satisfy the conditions stipulated in accordance with the provisions of the Legal Practitioners Act and are therefore invalid null and void thus rendering the proceedings at the lower Court incompetent.
They also filed a respondent’s brief of argument. They distilled 3 issues for determination thus:
1. Whether or not the plaintiffs succeeded in establishing that the 5th and 6th defendants (Lawani Adeoye Family) have no connection with the royal
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family and are strangers in Iwo-Oke?
2. Whether or not their evidence on record that it was the turn of the Lawani Adeoye Ruling House to provide the next candidate to fill the vacant stool of Olowu-Oke of Iwo-Oke?
3. Whether or not a Court process signed by a firm and not a legal practitioner duly registered on the roll as provided for by Sections 2(1) and 24 of the Legal Practitioners Act is valid or competent and what effect would such signing have on the proceedings and judgment?
Counsel argued issues 1 and 2 together by submitting that from the evidence led, the plaintiffs had not proved their case on the preponderance of evidence. That the trial judge was justified in the stand taken in favour of the defendants as relating to the existence of 3 Ruling Houses eligible to contest the Oluwo – Oke Chieftaincy stool.
The learned counsel submitted that the reference to “waiver” by the plaintiff was merely an obiter dictum and not the reason for the decision as the Court held that the plaintiff in any case had not proved its case.
Arguing issue No. 3, the learned counsel for the 5th and 6th respondents identified their notice of
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preliminary objection as the corner stone of this issue. They submit that the writ of summons and the statement of claim on pages 1 – 8 of the record were defective as they were signed by Ajibola & Co. and so also the amended statement of claim on pages 31 – 36 of the record of appeal signed by Ajibola & Co.
Counsel submits that, that was a violation of Section 2(1) and 24 of the Legal Practitioners Act, relies on Oketade v. Adewunmi (2010) 8 NWLR (pt. 1195) 63 at 74 to contend that a writ of summons or even a statement of claim filed by a firm of Legal practitioners rather than a counsel was defective and rendered the suit and the entire proceedings void, no matter how well conducted. See Adisa v. Oyinwola(2000) 10 NWLR (pt. 764) 116 at 200. That the defect went to the root of the case and robbed the Court of jurisdiction and that there was nothing left to decide on.
That though the defect was not noticed and thus not brought to the attention of the trial Court, it was non the less a jurisdictional question and may thus be raised at any stage of the proceedings and even on appeal.
See Amadi V. NNPC (2000) 10 NWLR (Pt.676) 76 at 111
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Paragraph F – G. Thus:
“Be sides, it is well settled that any issue concerning the jurisdiction of the Court, can be raised at any stage of the proceedings or on appeal.” Per Karibi – Whyte, JSC was referred.
Finally, it was submitted that where a Court has no jurisdiction to hear and determine a matter as in the instant case where the writ and statement of claim were signed by a firm of legal practitioners rather than by a legal practitioner the proceedings, judgment were conducted without jurisdiction and thus a nullity and should be set aside. Nwankwo V. Yar’Adua (20101 12 NWLR (Pt. 1209) 518 at 519 D – E.
That this issue be resolved against the appellant and the appeal be struck out. Adetayo v. Ademo (2010) 15 NWLR (Pt. 1215) 169 @ 1999 C -D.
In response, the appellants filed the appellant reply brief of argument to 1st, 2nd, 5th and 6th respondents brief of argument and commented on the preliminary objection raised firstly thus; that the originating processes were truly infested with a legal virus but that at the Court of appeal it was not wrongly signed. That a wrongly signed notice of appeal was withdrawn by leave of Court and a fresh
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notice of appeal was filed on 6th of November, 2008.
On the merit of the appeal, the appellants merely re-argued the appeal. I shall therefore not repeat the exercise.
At this juncture it is pertinent to say that the challenge to the competence of the suit at the trial Court which snowballs into the challenge to the competence of the suit at the trial Court to have heard the suit at all, may be raised at any stage of the proceedings and indeed even for the first time on appeal as done before this Court now.
This has become a trite principle of law see Zakari V. Nigerian Army (2015) 7 NWLR (pt.1487), page 77; Attorney-General Lagos State v. Attorney-General of the Federation (2014) 9 NWLR 217 (pt.1412).
The challenge to the competence of originating processes at the trial Court has not been denied. Infact, the learned counsel for the appellant in his reply brief to 1st, 2nd, 5th and 6th respondents’ brief conceded that there was a legal virus to the originating processes at the trial Court. That is, the writ of summons and the statement of claim.
I find the processes signed by a firm of legal practitioners and not by a registered legal
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practitioner as enjoined by the Legal Practitioners Act, Sections 2 and 24 thereof .
In Oketade v. Adewunmi (2010) 8 NWLR (pt. 1195) 63 at 74, the apex Court held that a writ of summons signed in a firms name rather than by a legal practitioner rendered the writ and the suit incompetent. Indeed the Court proceeded to hold that in future even the statement of claim or briefs filed pursuant thereto would be declared null and void.
In Okafor & Ors. V. Nweke & Ors, an originating process taken out in the name of J.F Okolo & Co and not in a counsels name thus rendered the suit incompetent. The decision based thereon was quashed as a product of a nullity as you cannot put something on nothing and expect it to stand. See UAC v. Mcfoy 1952 AC 150.
This challenge raised by way of preliminary objection by the two sets of respondents ie 1st and 2nd respondents and the 5th and 6th respondents respectively are each valid and are accordingly resolved in their favour and against the appellants herein. The appellants as plaintiffs had a paralytic suit; their suit could not crawl.
It had legally withered feet. The trial Court had no
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jurisdiction to listen to a paralytic suitor(s). This Court too lacks the anointing to resuscitate or revive such a suit that was legally dead on arrival at the trial Court. We are not imbued nor endowed with that resurrection power!.
Accordingly, the suit of the plaintiffs at the trial Court now appellants was incompetent and the trial Court lacked the jurisdiction to have entertained the same. lts judgment was ineffectual. The Suit No. HlW/4/2003 is struck out and the judgment delivered on 30th day of November, 2005 in the said suit HlW/4/2003 by F. O. Olawojin, J in Ashiru Adegoroye & 2 Ors. V. Attorney General of Osun State and 5 Ors is set aside and quashed for its invalidity.
There being no competent suit before the trial Court, it would be an academic exercise and share waste of precious judicial time to delve into a consideration of the merit of the issues argued before us.
If I had to, I would have dismissed the appeal on the merit thereof as the suit was not proved by the evidence led the evidence rather supported the 5th and 6th respondents case and also showed that the conditions precedent to the institution of the suit,
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being a chieftaincy claim had not been satisfied.
However, for the incompetence of the suit, I will dismiss the appeal and substitute an order striking out the suit at the trial Court rather than dismissing same as done by the trial Court.
Accordingly, the trial judgment is set aside and the suit No. HlW/4/2003 at the trial Court is struck out. This shall be the substituted order of this Court. Appeal dismissed.
Other Citations: (2016)LCN/8906(CA)
