Chike Onyekwuluje & Anor V. G.b Animashaun & Anor (2019)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, J.S.C.

The Respondents instituted this suit as Suit No. O/21/81 at the High Court, Onitsha on 30th January, 1981 against the Defendants-Appellants. The Respondents’ claims at the trial Court are as follows:

“1. A declaration that purported Deed of Lease made on 26th January, 1975 between I.B. Animashaun and R. B. Animashaun and the defendant touching and concerning a plot of land lying, being and situated at No. 23 New Market Road, Onitsha registered as No.29 at Page 29 in Volume 766 of the Deed Registry, Enugu is contrary to Law and is therefore of no legal effect and should be set aside.

2. A declaration that any purported occupation of No. 23 New Market Road, Onitsha pursuant to the said Deed of Lease of 29th January 1975 aforesaid is unlawful.
3. Possession of the said land at No. 23 New Market Road, Onitsha annual value is N40.00.”

The trial Court dismissed the suit of the Respondents on 12th December, 1984. Dissatisfied with the said judgment of the trial Court, the Respondents appealed to the Court of Appeal Enugu division vide a Notice of Appeal dated 8th

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March, 1985. The lower Court delivered its judgment on 27th June, 1988 setting aside the judgment of the trial Court, and proceeded to enter judgment in favour of the Respondents. The Appellants, being dissatisfied with the judgment of the lower Court filed further appeal to this Court. On 5th March, 1996, the Supreme Court allowed the appeal, set-aside the judgment of the Court of Appeal and remitted the case to the Court of Appeal to re-hear.

After rehearing the appeal, the Court of Appeal on the 30th day of November, 2005 set aside the judgment of the trial Court and ordered as follows: “In its place, respondent’s claim in the Court below is dismissed”. The Appellants being dissatisfied with the judgment of the Court of Appeal, has appealed to this Honourable Court vide a Notice of Appeal dated 8th February, 2018.

SUMMARY OF FACTS:

The 1st Respondent (G.B. Animashaun) is the administrator of the Estate and younger son of Late Badaru Asuni Animashaun (B.A. Animashaun). The 2nd Respondent is a co-administrator of the estate of the deceased. The Appellants are the children of the Late G.E.N Onyekwuluju, the substituted Appellant who was the Solicitor and Caretaker of the landed property in dispute.

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The land in dispute was the property of the Late B.A. Animashaun which was granted under a Kola Tenancy by the Mgbeleke family of Onitsha situate and lying at No. 23 New Market Road, Onitsha. Upon his death, the landed property devolved to his heirs as a family property as he died intestate. Upon the death of I. B. Onyekwuluje (elder son of B.A. Animashaun) in 1975, the 1st Respondent indicated that a purported lease had been granted to the Appellants in respect of the landed property without his knowledge or consent. The makers of the purported lease are I. B. Onyekwuluje (who is a distant relation of the Badaru Family) and G.E.N. Onyekwuluje.

Consequently, the Respondent reached out to the late G.E.N. Onyekwuluje to protest the purported lease, The matter was sought to be resolved amicably by the parties, but was not successful leading to this suit, which essentially seeks to set aside the purported deed of lease.

ISSUES FOR DETERMINATION:

The Appellants formulated twelve (12) issues for determination at pages 2-3 of the Further Amended Appellants’ Brief of Argument, thus:<br< p=””

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“1. Whether the Court of Appeal was right in introducing Yoruba Customary Law into the case and relying thereon in coming to its decision in the case.

2. Whether the Defendant-Appellant was obliged to call Raji Babatunde Animashaun to testify for him and whether any adverse presumption arose against the Defendant-Appellant under Section 149 (d) of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990, in that he did not call Raji Babatunde Animashaun to testify for him.
3. Whether the Defendant-Appellant needed to call Barrister Henry Afolabi Lardner to testify as for whom he prepared Exhibit `S’.
4. Whether there was evidence that the Badaru Animashaun family consented to the lease granted to the Defendant-Appellant.
5. Whether the Court of Appeal was not wrong in holding that the findings of the trial Court were perverse and on embarking on its own review of the evidence led at the trial.
6. Whether the Court of Appeal was not wrong in its appraisal and evaluation of the evidence led before the trial Court and whether its findings thereon are wrong.

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Whether the issue of delay in seeking to set aside the lease granted to the Defendant-Appellant by the Badaru Animashaun family was properly raised or considered by the Court of Appeal.

8. Whether the Plaintiffs-Respondents pleaded fraud in their Statement of Claim as prescribed by law.
9. Whether there was fiduciary relationship between the principal members of the Animashaun family and the Defendant-Appellant and Defendant-Appellant and whether the Defendant-Appellant breached any such relationship (sic).
10. Whether the judgment of the Court of Appeal is not against the weight of evidence in this case.
11. Whether the Respondents’ Suit is not a nullity and whether the Court of Appeal had the jurisdiction to entertain an appeal arising from suit which is a nullity.
12. Whether the Court of Appeal had jurisdiction to hear and allow the Respondents’ appeal which was originated by a Notice and Grounds of Appeal which is invalid, null and void.”On its part, the Respondents formulated seven (7) issues at pages 6-8 of the Respondents’ Brief of Argument, thus:

“1) The applicable law in distribution, or disposition of interest in an intestate estate is the personal

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law of the deceased. The lower Court rightly applied this controlling principle of law when it decided that Yoruba customary Law ought to have been adhered to, in dealing with No. 23, New Market Road, Onitsha, Enugu, forming part of the Late B.A. Animashaun’s intestate estate, as opposed to Kola Tenancy law, contended by the Appellants. Should the trite principle of law, and the well-reasoned judgment of the lower Court not be upheld by this Honourable Court (Distilled from Ground 1 of the Notice of Appeal).

2) Section 149 (1) of the Evidence Act, Cap 112, Laws of the Federation of Nigeria empowers a Court to make presumptions against a party in favour of an adverse party, where such party withholds evidence, which if produced by him would unarguably be in favour of the opposing party. The lower Court in giving effect to this provision, found that failure of the Appellants to call Raji Babatunde and Henry Afolabi Lardner as witnesses, was an essential presumption in favour of the Respondents. Was the Court of Appeal not right to have applied the principle of law (Distilled from Grounds 2 and 3 of the Notice of Appeal).

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3) Considering the properly applied authority to interfere with the findings of fact of the trial Court where the latter’s finding of fact is perverse or wrong as was in this case, are the Appellants not wrong to contend that the rightful exercise of this duty by the lower Court has occasioned a miscarriage of justice (Distilled from Grounds 4, 5, and 6 of the Notice of Appeal).

4) The validity of the subject matter lease and consent; are inextricably related issues to the question as to whether there was delay in seeking to set aside the lease granted. Are the Appellants not wrong to argue against the legally valid decision of the lower Court which rightly considered the question of delay to set aside the lease (Distilled from Ground 7 of the Notice of Appeal).

5) Despite specific paragraphs of the Statement of Claims and evidence given at trial where the Respondents alleged fraudulent conduct against the Appellants, the Appellants curiously argue that the lower Court raised the issue of fraudulent conduct Suo motu. Are the Appellants not again wrong to have inappropriately contended that the lower Court raised the issue of fraudulent conduct suomotu (Distilled from Ground 8 of the Notice of Appeal).

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6) A Solicitor is prohibited from profiting from his relationship with his Client without first making an adequate disclosure. The late G.E.N. Onyekwuluje having acted as a solicitor to the Badaru Animashaun family is prohibited by law from profiting from his relationship with his clients without disclosure. The lower Court affirmed this principle of law finding for the Respondents. Considering the circumstances of this case, was the Court below not right to have accordingly decided in the circumstances (Distilled from Ground 9 of the Notice of Appeal).

7) Access to Court is a Constitutional Right which cannot be ousted, limited or restricted by the Courts or any other written law. Moreso, Rules are not to have a Retrospective effect. Considering these established principle of law, should the Originating Process at the Trial and Lower Court giving rise to the appeal not be declared competent (Distilled from Grounds 11 and 12 of the Notice of Appeal).”

I have gone through the laborious tasks of reproducing the respective issues formulated by parties in this appeal.

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The issues formulated by the parties are needlessly overlapping and superfluous in several aspects. The Appellants formulated twelve (12) issues for determination when in actual fact the contention in this appeal appears straightforward. On their part, the Respondents formulated seven (7) issues with inelegant verbosity. This is not necessary in a Court as busy as the Supreme Court, perhaps any Court at all.

Issues for determination are ‘formulated’ and not supposed to be ‘argumentative’ as formulated. The parties are expected to coin their issues for determination as precise as possible with professional elegance and brevity but without sacrificing its essential messages. By practice, issues formulated are different from issues argued or arguments on issues. Arguments or analogies on issues formulated are not to be contained in the issues so formulated. Arguments and analogies are to be supplied separately to amplify on the issues so formulated. The Respondents’ Counsel is found inadequate in this regard for formulating convoluted issues for determination at pages 7-8 of the Respondents’ Brief.

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Having pointed out my concerns about the parties’ formulation of issues for determination, I hereby proceed to evaluate the arguments and submission made by the parties on their respective issues, as formulated.

CONSIDERATION OF ARGUMENTS AND RESOLUTION OF ISSUES:

The Appellants contended on issue 1, that the parties are bound by the pleadings, citing the cases of ETOWA ENANG & ORS VS FIDELIS IKOR (1981) 11-12 SC 25 at 36, Lines 32 to 36; SAMUEL MBANEFO AGUSIBO & ANOR. VS ANTHONY AKUNNE OKAGBUE & ANOR (2001) 15 NWLR (Pt. 737) 502 at 529; OBA OYEBADE LIPEDE & ORS VS CHIEF ADIO SONEKAN & ANOR (1995) 1 NWLR (Pt.374) 668 at 686 Letter “C”. The Appellant contended that the testimony of the PW.1 is to the effect that his father acquired 23, New Market Road, Onitsha, from the Mgbeleke family of Onitsha under kola tenancy and submitted that the customary law applicable to the land leased to the defendant-Appellant is the Onitsha Kola Tenancy law as Onitsha is the lexsitus of the 23 New Market Road, Onitsha when the Mgbeleke family granted to late Badaru Animashaun on kola tenancy.

On Issues 2 and 3, the Appellants contended that the lower Courts judgment at page 192 lines 13

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to 27 was wrong as there was no evidence at trial that Raji Babatunde Animashaun was alive and as such the question of calling him did not arise. The Appellants contended that Exhibits ‘H’, the Deed of Lease which is the subject matter of the case was made for and on behalf of Badaru Animashaun family and Exhibits “R” and “S” confirm that members of Badaru Animashaun family participated in granting Exhibit “H” to the Respondent. The Appellants then submitted that Section 149 (d) of the Evidence Act did not apply to this case.

On issues 4, 5, 6 and 10, the Appellants contended that the duty of trial Court is to evaluate the evidence and make findings of fact thereon, it is where the trial court fails to evaluate evidence properly or at all, that the Court of Appeal can intervene and itself evaluate such evidence, citing cases of UNITED BANK FOR AFRICA VS MRS. NGOZI ACHORU (1990) 6 NWLR (Pt.156) 254 at 282; ENGR. EMMANUEL OSOLU VS ENGR. UZODIMMA OSOLU & ORS (2003) 11 NWLR, (Pt.832) 608 at 635 Para E-F. The Appellants also listed four other cases on which they place additional reliance in submitting that the lower Court was wrong in holding that the

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findings of the trial Court were perverse, as before a lower Court can hold that the findings of a trial Court are perverse it must first of all consider the findings on the back-ground of evidence before the trial Court.

The Appellants submitted further that the question as to the consent of the members of the Badaru Animashaun family to the lease, Exhibit “H”, granted to the appellants was hinged on Yoruba Customary Law did not apply to this case.

On issue 7, the Appellants contended that no issue of delay was raised in the pleadings and it was not open to the Court of Appeal to introduce such an issue in the appeal. The Appellants’ contention on issue eight is hinged on the fact that contrary to the finding of the Court below, for fraud and dishonest conduct to be an issue in this case, the alleged fraud and dishonest conduct must be specifically pleaded as well as the particulars thereof. The Appellants contended that the Respondents did not specifically plead fraud or dishonest conduct in the statement of Claim and the Court of Appeal was therefore wrong to have held that the pleadings at page 5 lines 11 to 32 of the Statement of Claim amounted to fraudulent and dishonest conduct.

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On issue 9, it was contended that the Appellant was never Solicitors to the Badaru Animashaun family and could not in any way whatsoever have profited from the Respondents’ property. On issues 11 and 12, the Appellants contended that by virtue of Sections 2(1) and 24 of the Legal Practitioners Act, only a person whose name appears on the roll is entitled to practice as barrister and solicitor for the purpose of any particular office or proceedings. Appellants relied on the case of EMMANUEL OKAFOR & ORS VS AUGUSTINE NWEKE & ORS (2007) 10 NWLR (Pt.1043) at 528; AMOS OKETADE VS OLAYINKA ADEWUNMI & ORS (2010) 8 NWLR (Pt.1195) 63 at 74 to 75 and also relied on number of other cases on this point. The Appellants submit that to the extent the Respondents’ Notice of Appeal filed at the Court below on which this appeal is premised is defective having been signed by a law firm, “S.A. Animashaun and Company”, as contained at page 88-90 of the record of appeal. The Appellants submitted that the necessary implication of this is that the Court of Appeal lacked jurisdiction to entertain and allow the Respondents’ appeal

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and concluded that the Supreme Court should allow the appeal and set aside the judgment of the lower Court.

In their response to the argument on issue 1, the Respondents contended that the personal law of the deceased Alhaji Badaru Asuni Animashaun is the Yoruba Customary Law. The Respondents denied applicability of the decision in MOJEKWU VS MOJEKWU (1997) 7 NWLR (Pt. 512) at 299 to the fact of this case and proceeded to distinguish same. The Respondents submitted that the applicable Customary Law when a deceased dies intestate is the Customary Law of the deceased (personal law) even when he died resident outside his home area or left landed property outside his ethnic area as was held in TAPA VS KUKA (1945) 18 N.L.R, 5. The Respondents further relied on the case of OSAGWU VS SOLDIER (1959) N.R.N.L.R 39 at 41, ABEJE VS OGUNDAIRO (1967) LLR 9.

The Respondents contended further that the argument of the Appellants that the consent of the Mgbeleke family was obtained is of no consequence in this matter, as what matters is that the land in dispute is a family land governed by the Yoruba customary law, SEE EKPENDU VS ERIKA (1959) 4 FSC 79 and AGARAN VS OLUSHI (1907) NLR 66.

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On their issue 2, the Respondents contended that a party who alleges misdirection of the Court is duty bound to established same, as an allegation of a misdirection of law or fact is not an omnibus ground of appeal available to every Appellant, citing the case of ABISI & ORS VS EKWEALOR & ANOR. (1993) LPELR-44 (SC) and ALOM VS AMENGER (1997) LPELR-6014 (CA). The Respondents relied on the decisions in the above cases and submitted that the lower Court has not in any way or manner whatsoever, misapplied the law to the facts arising from the failure of the Appellants to call Raji Babatunde Animashaun and Henry Afolabi Lardner as its witnesses during trial further to the provisions of Section 149 (d) of the Evidence Act.

The Respondents contended that the testimony of the maker of a document during trial is generally indispensable in law, especially where the document is a fact in issue, citing the case of OMEGA BANK PLC VS OBC LTD (2005) 1 SCN3 150. The Respondents further argued that the burden of proof of the existence or non-existence of the Animashaun family had shifted to the Appellants.

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This is because, the Appellant being the party relying on Exhibits H and S were under legal duty to call the makers of the said exhibits in trial especially where the burden of proof of non-existence had shifted to it. Reliance was placed on the case of ISHOLA VS UBN LTD (2005) LPELR-1550 (SC); THE STATE VS JOSEPH & ANOR. (1994) 5 NWLR (Pt.345).

On issue 3, the Respondents argued that the duty of the appellate Court is to review the findings of the trial Court, and relied on the cases of OGBECHIE & ORS VS ONOCHIE & ORS (1986) LPELR-2278 (SC); OLABANJI & ANOR VS OMOKEWU & ORS (1992) LPELR 2541 (SC) and GUARDIAN NEWSPAPERS LTD & ANOR VS AJEH (2011) LPELR-1343 (SC). The Respondents submitted further that from the totality of evidence adduced before the trial Court, it has been glaringly shown that the consent of the Badaru Animashaun family was neither sought nor obtained regarding Exhibit ‘H’.

The Respondents pointed out that there were sufficient evidence from both parties and Exhibits 3 and H as to the extent of the land subleased to the Appellant by Sylvanus N. Kamelu and his co-leasee late Isiaka Badaru Animashaun.

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The Respondents then concluded their submission on this issue by arguing that the lower Court was right in its conclusion that the trial Court evaluated the evidence wrongly.

On issue 4, the Respondents reiterated their position that the applicable law is that of Yoruba customary law and contended further that the lower Court ventured into the issue of delay was a mere obita, citing the case of BUHARI VS OBASANJO (2005) 13 NWLR 81 at 89.

On issue 5, the Respondents submitted that the facts contained in the Respondents’ pleadings (at pages 3-5 of the Record of Appeal) disclosed fraudulent conduct of the Appellants regarding securing the lease without the consent of the principal members of the Late Badaru Animashaun family and that the lower Court was right to uphold that finding. In issue 6, the Respondents stressed that the fiduciary relationship of the late G.E.N. Onyekuleje with the Late Badaru Animashaun family was expressly corroborated by the Appellants both in their pleadings and at trial.

On its final issue, no 7, the Respondents contended that contrary to the submissions of the Appellants, their Statement of Claim dated and filed 14th March

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1981 and the Notice of Appeal 27th January 2007 are both competent. The Respondents submitted further that the record of appeal shows that it was typed and printed with a typewriter and not a computer, which could not have captured signatures. The Respondents further argued that assuming but without conceding that Counsel signed the name of a law firm, the Respondents are still entitled to justice by virtue of Section 6(6)(b) of the 1999 Constitution. The Respondents cited the case of GLOBAL COMMUNICATIONS LIMITED & ORS VS DONALD DUKE (2007) LPELR- 1323 (SC).

The Respondents further contended that the Appellants had waived the irregularity by refusing, failing or neglecting to raise the issue of regularity or otherwise of originating processes but opted to join issues by taking steps to filing processes in response to the Respondents’ processes. This, according to the Respondents, is a clear case of voluntary waiver on the part of the Appellants. The Respondents submitted further that the Appellants cannot rely on technicalities to defeat justice, citing the case OGUNDELE & ORS VS AGIRI & ORS (2009) 18 NWLR (Pt.1173) at 46; BBN LTD VS OLAYIWOLA

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(2005) 3 NWLR (Pt. 912) 434. In their concluding arguments, the Respondents urged this Court to dismiss this appeal as lacking in merit.

In their further reply, the Appellant filed a Reply Brief dated 2nd November, 2018 which essentially clarifies issues in the Respondents’ Brief. In this judgement, I have paid due attention to this Reply Brief to the extent to which recourse to it is deemed necessary to avoid re-arguing or re-evaluating arguments that had earlier been evaluated above.

The parities raised common issues as to the applicable law to the subject matter and whether consent of the principal family members had been sought and given before the lease, Exhibit H. A central issue in this appeal is whether the Badaru Animashaun family, a Yoruba man who died intestate leaving the subject of this appeal behind, knew about the negotiation for the lease and gave approval for same. It is a settled position of law that, by Yoruba Customary Law, a transaction for the sale and conveyance of family land requires the consent of all members of the family or substantial majority of them.

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See AFOLABI COKER VS MARIAMO OGUNTOLA & ORS (1985) 2 NWLR (Pt. 87); ELIAS VS OLAYEMI DISU & 3 ORS (1962) 1 ALL NLR 214; FOKO VS FOKO (1965) NMLR 3, EBOSIE VS EBOSIE (1976) 6 UILR 217.

A crucial fact that is central to the validity of the lease in Exhibit H is consent in line with the law under which the property is being held intestate. Consent in this circumstance must be direct and not inferential. Knowledge of a transaction, assuming the Respondents family had knowledge of the lease, is different from consent. In our complex society, knowledge may be given or perhaps inferred. What is important is that consent of necessary family members were sought and obtained. It does not appear so in this case. These crucial findings are contained in the evidence of PW-1 at trial as replicated at pages 191 of the Record of Appeal:

“I do not know anything about a lease granted to the defendant in January 1975, in respect of No. 23 New Market Road, Onitsha. I know someone called R.B. Animashaun. He is a distant relation. Mr. R.B. Animashaun has never been administror of No. 23 New Market Road, Onitsha. Neither myself not any member of our family was consulted before the

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granting of the lease in 1975 of No. 23 New Market Road Onitsha to the Defendant.”

PW.2, the son of the late Badaru Animashaun also gave similar evidence of lack of consent to the transaction, and further stressed the fact that, quote, “Our family normally met before a lease is granted to anybody”. There was no direct evidence of equal velocity given in definitive manner that ‘consent’ was indeed given. It is therefore curious where the Appellants got their authorization from. Clearly, personal law of the deceased Alhaji Badaru Asuni Animashaun is the Yoruba Customary Law. This is because the applicable Customary Law when a deceased dies intestate in Yoruba land, even if the deceased died outside his ancestral community, is the customary Law of the deceased. See TAPA VS KUKA (1945) 18 N.L.R, 5; OSAGWU VS SOLDIER (1959) N.R.N.L.R 39 at 41; ABEJE VS OGUNDAIRO (1967) LLR 9; EKENDU VS ERIKA (1959) 4 FSC 79 and AGARAN VS OLUSHI (1907) NLR 66.

I have no doubts in my mind that the consent of Respondents’ principal family members was neither sought nor obtained in respect of the so-called lease, Exhibit H, in respect of No. 23 New Market Road, Onitsha.

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An important remedy would have been to invite the maker(s) of Exhibit H as a witness(es). Section 149 (d) of the Evidence Act is very relevant in the circumstances of this appeal. It provides that:

“The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of a particular case, and in particular, the Court may presume-

(a) That the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds.”

The failure of the Appellants to call Raji Babatunde Animashaun and Henry Afolabi Lardner as its witness during trial further to the provisions of Section 149(d) of the Evidence Act is fatal. The testimony of the maker of a document during trial is generally indispensable in law, especially where the document is a fact in issue. See ISHOLA VS UBN LTD (2005) LPER-1550 (SC). See also OMEGA BANK PLC VS OBC LTD (2005) 1 SCNJ 150, Per Niki-Tobi JSC.

The duty of the appellate Court is to review the findings of the trial Court.

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I’m satisfied that the lower Court had taken cognisance of the evidence at trial, which had been reviewed to arrive at its decision. The most important consideration in evaluating evidence or issues before the Court is to come to a decision on same one way or the other, and not necessarily to come to a conclusion or make findings that are favourable to a particular party in the case. Thus, once the appellate Court has fully taken cognisance of the evaluation of evidence alongside the pleadings by the trial Court, the Court of Appeal is not even obligated to deal, line by line, phrase by phrase on the judgment of the Tribunal before it can be said the Court of Appeal carried out its duty. The important thing is that in its appellate duty substantial justice was done. See OKE VS MIMIKO (2012) 12 SCNJ 77 at 123.

Clearly, the evaluation and ascription of probative value to the evidence adduced by the parties is the primary duty of the trial Judge seized of the matter. Ordinarily, the appellate Court should not, and may not interfere in the finding of fact by the trial Court where the duty has been properly carried out by the trail Judge. See SALIHU OKINO VS YAKUBU OBANEBIRA &

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ORS (1999) 12 SCNJ 27; (1999) 13 NWLR (Pt. 636) at 535; DAN AWAZA BASHAYA & 7 ORS VS THE STATE (1998) 4 SCNJ 202; (1998) 5 NWLR (Pt.550), page 351.

Therefore, where a wrong conclusion is reached upon such evolution, the appropriate thing to do is for the appellate Court to interfere and set it right in line with its statutory duties. See ACHILIHU VS ANYATONWU (2013) 1 SCNJ 332 at 359 thus:

“The exception is where there is misdirection by the trial Court. Misdirection occurs where issues of fact in the case for the parties or the law applicable to the issue raised are not fairly appraised or considered or misconceived or the law applicable is incorrectly applied by the trial Court as a result there would be a miscarriage of justice if the decision reached is allowed to stand.”

From the totality of evidence adduced before the trial Court, it has been glaringly shown that the consent of the Badaru Animashaun family was neither sought nor obtained regarding Exhibit ‘H’. Curiously, there were sufficient evidence from both parties and Exhibits J and H as to the extent of the land subleased to the

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Appellant by Sylvanus N. Kamelu and his co-lease late Isiaka Badaru Animashaun. The lower Court was then right in its conclusion that the trial Court evaluated the evidence wrongly.

In view of the above, I hold that in the circumstance of this appeal, the lower Court was right to interfere with the evaluation of evidence in this case. See the case of EMARIERU VS OVIVIE (1977) 2 SC 31: OSUNDULU VS PHILIPS (1973) 1 NMLR 267 at 272; OKOLO VS UZOKA (1978) 4 SC 77 at 86; NWLR (Pt.544) 130 at 139. JIMOH GARBA VS ISIAKA YAHAYA (2007) 1 SC (Pt.2) 262 at 266.

On the final issue raised by both parties, relate to the contention that Counsel signed the name of a Law firm. From the records, two processes were affected by this Virus. (1) The Appellants claim filed 30th day of January, 1981 at the trial Court upon which this action was commenced was signed by a Law firm “EZEBUILO UMEADI & CO.” See page 2 of the record of appeal; (2) In the same vein, the Respondents Notice and Grounds of Appeal dated the 8th day of March, 1985 on which the Respondents appealed to the Court of Appeal against the judgment of the trial Court as originated and signed by a Law firm.

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“S. A. ANIMASHAUN AND COMPANY”. See pages 88 to 90 of the record of appeal. These two processes are both initiating processes upon which this action was commenced. The defect in both processes is extrinsic, to the effect that they were signed by a person not ascertainable in Law and procedure. See Sections 2(1) and 24 of the Legal Practitioners Act No. 33 Laws of Nigeria, 1962 which providers as follows:

“Section 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 roll.”

And by Section 24 of the Act, “Legal Practitioner” means:

“a person entitled in accordance with the provisions of this Act to practice as a barrister and as or a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.”

See also the cases of:- EMMANUEL OKAFOR & ORS VS AUGUSTINE NWEKE & ORS (2007) 10 NWLR (Pt.1043) 521 at 528 letter “C” to 533 letter “C” and 533 letter “E” to 534 letter MR. AMOS OKETADE VS MRS. OLAYINKA ADEWUNMI & ORS (2010) 8 NWLR (Pt.1195) 63 at 74 to 75 letter “B” to FIRST BANK OF NIGERIA PLC & ANOR VS

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ALHAJI SALMANU MAIWADA & ANOR (2013) 5 NWLR (Pt.1348) 444 at 494 letters, “B” to 499 letters “E” to “H” to CHIEF GABRIEL IGBINEDION & ANOR VS WATSON & SONS LTD (2018) 8 NWLR (Pt.1621) at 381 letters A to B

In the case of CHIEF GABRIEL IGBINEDION & ANOR VS WATSON & SONS LTD (2018) 8 NWLR (Pt. 1621) at 381 letters “A” to “B”, the Court of Appeal stated the law as follows:

.. any originating process such as an application for a writ of summons or statement of claim signed by a law firm, as was the case here, would render the initiation of the case bad and the subsequent proceedings predicated on the mortally defective originating process would bring to grief the entire suit and render the decision or judgment and ruling arrived threat a null and void.”

The cases of OKAFOR VS NWEKE (Supra) OKETADE VS ADEWUNMI (Supra) FBN PLC VS MAIWADA (supra) & others cited above have settled the matter with satisfactory finality, to the effect that the proper procedure for signing on behalf of somebody else is to disclose the name and identity of the person who signed and for whom it was signed if signed on behalf of another person in chambers the two names must be disclosed.

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The defect in this Suit is extrinsic to the adjudication of this case. Also the condition precedent to the exercise of jurisdiction is absent. The entire appeal collapses, and it is hereby struck out. Also the defective claim at the trial Court must be struck out, and it is hereby struck out. The entire action is struck out.

Parties to bear their own costs.

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SC.72/2006