Prince Toyin Kunle Kayode & Ors V. The Registered Trustees of United African Methodist Church (2008)

LawGlobal-Hub Lead Judgment Report

CHIDI NWAOMA UWA, J.C.A.

This is a consolidated appeal against the judgment of Candide – Johnson, J. of the High Court of Lagos State.

The respondent as claimant at the trial Court commenced this action by way of originating summons dated 8th November, 2004. It was alleged that on the 10h of November, 2004 without an Order of the Court, the claimant purportedly served all the originating processes on the Defendants, including the 1st and 2nd appellants herein by pasting on the entrance gate of the 1st Defendant (Estate of the late Akin Joacquim) as well as the “wall of all the buildings of the unknown persons.”

The appeals would be determined in the order they were argued.

CA/L/1143/10

The 1st and 2nd Appellants objected to the suit on the ground that the suit was not initiated by due process of law and prayed that it be struck out. The trial Court rather than strike out the suit, converted the originating summons to a writ of summons and directed the Respondent (as claimant) to file its statement of claim which was later amended.

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In its amended statement of claim, the claim against the 1st and 2nd Appellants (then as 2nd and 3rd Defendants) is follows:

i. A DECLARATION that the Claimant is the registered proprietor of the title registered vide the indenture registered as No. 37 at Page 37 in Volume 132 dated 21st March, 1956 and by virtue thereof is the legal and beneficial owner of the entire parcel of land comprised in the title.

ii. AN ORDER of perpetual injunction restraining the Defendants and their agents from trespassing on (sic) further trespassing on (sic) the claimants land comprised in the title registered as No. 37 at Page 37 in Volume 132 dated 21st March, 1956 at the Lagos State Lands Registry, Alausa.

iii. AN ORDER for possession of the parcel of land lying situate and being in the Obanikoro area of Lagos State covering an area of 1062 acres a plan of which attached to the Claimant’s indenture registered as No. 37 at Page 37 in Volume 132 dated 21st March, 1956 and encompassing the following streets and addresses;

Nos. 7-46, Obanikoro Street (all numbers within the bracket inclusive)

Nos. 2-42, Buraimoh Street (all numbers within the bracket inclusive

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inclusive Nos. 1-3, Babs Kazeem Street,

All plots of land directly behind Nos. 7, 9, 11, 13, 15, 17, 19, 21 and 23, Obanikoro Street, all otherwise identified as Plots 1-16, 25-27, 33-35, 41-43, 49-51, 58, 60-62, 71-76, 85-90A, 131-137 and 143-145 on the Alashe Family Layout on the ground that the Claimant is the registered and lawful owner and that the Defendants are in occupation without its leave, license or consent.”

The 1st and 2nd appellants’ respective defences are that they bought their plots of land in 1961 and 1964 respectively. They developed them, lived in and rented part of each to tenants who lived in the rented portions without any disturbance, until after 2006 when they became aware of the Respondent’s action.

The respondents did not file a reply to the appellants’ respective statements of defence, therefore did not challenge the facts averred in the respective statements of defence.

The case of the Respondent is that in 1954, it purchased a parcel of land in Obanikoro, Lagos, which included Plot 44, Obanikoro Road (the 1st Appellant’s plot/property) as well as Plot 1 and 3, Buraimoh Street Obanikoro, (the 2nd Appellant’s plot/property).

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The parcel of land also purportedly included the properties presently in possession and occupation of the 3rd-8th Appellants. The Respondent’s alleged that their root of title derived from a Deed of Indenture Registered as No. 37 at Page 37 in Volume 132 at the Lagos State Lands Registry, Alausa and dated 21st March, 1956 between one Jemi Alade and “all trustees of the United African Methodist Church.”

The Respondent averred that it was put into possession in 1954 and remained in peaceable occupation until the appellants trespassed onto the said land. The date of trespass was not given. The action was commenced by the Respondent in 2004 claiming a declaration of title, order of perpetual injunction and possession.

The appellant’s case is that he bought plot 44, Obanikoro Road, Obanikoro (alleged to be part of the land being claimed) from the Alashe family and was put into immediate possession in 1961 and he started building a bungalow on the land immediately. By 1971, he had built a six – flat storey building on the land. He remained in possession from then until his title was challenged in 2004 by the Respondent while the 2nd Respondent’s case is

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that he bought plots 1 and 3, Buraimoh Street, Obanikoro (also alleged to be part of the parcel of land in dispute) between 1963 and 1964. He built houses on the plots and has remained in peaceable possession from then until 2004 when the Respondent filed this action.

At the trial, the 1st and 2nd Appellants in their respective statement of defence raised objection challenging the jurisdiction of the trial Court on the following grounds:

a. The action is statute barred in view of Section 16(2), 9 and 21 of the Limitation Law of Lagos State, 2003.

b. The claimants (Respondent herein) had no locus standi to present the case.

c. The action cannot be maintained because the claimant was guilty of laches and acquiescence.

The appellants contended that the trial Court ought to have considered the issue of jurisdiction first in its judgment before proceeding to consider the merits or otherwise of the substantive case. It was alleged that the trial Court did not consider ruling on the challenge of its jurisdiction/authority to entertain the suit, therefore erred in refusing to decide the issue of jurisdiction.

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See, KOKOORIN v. PATIGI LOCAL GOVERNMENT (2009) 15 NWLR (Pt. 1164) 205 at 219, PARAS B-D, UGBAH v. UGBAH (2009) 3 NWLR (Pt. 1127) 108 at 118-119, PARAS. G-A, ABIKOYE v. ADEKO (2011) 5 NWLR (Pt. 1244) 415 at 43L. PARAS. D-E, amongst others.

The 1st and 2nd appellants once again raised before this Court the issue of jurisdiction captured in their issue one to be determined by this Court, whether the trial Court had the jurisdiction to have entertained this matter?

At the close of the trial, the trial Court in its judgment granted all the claims of the Respondent. The 1st and 2nd appellants being dissatisfied with the judgment appealed to this Court and formulated the following issues for the determination of the appeal:

1. “Whether the entire proceedings as well as the judgment dated 20th October, 2010, is not null and void having been based or founded on the expired Originating Summons dated 4th November, 2004, (Grounds 1 and 2).
2. Whether the lower Court had jurisdiction to entertain and determine the suit. (Grounds 3, 7 and 9).
3. Whether the failure of the Respondent to file a Reply to the 1st and 2nd Appellants’ respective

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Statements of Defence did not amount to an admission of the averments in the said Statements of Defence. (Ground 4)

4. Whether the Respondent’s claim was not defeated by its failure to file a composite plan and to lead adequate evidence to establish its claims at the trial. (Grounds 5).
5. Whether the trial Court was right to suo motu raise and determine the issue of fraud which was not pleaded or canvassed by the Respondent and without allowing the appellants to address the issue. (Ground 6).
6. Whether in the circumstance, the trial Court was right to hold that the testimony of DW2 was HEARSAY. (Ground 8).
7. Whether the evidence of CW1 (called by the Respondent) was admissible and whether the trial Court was right to insist that the onus was on the 1st and 2nd Appellants to establish the bona fide of that witness. (Ground 10).”

The Respondent on its part distilled the following issues for the determination of the appeal thus:

i. “Whether the statement of Defence of the 1st and 2nd appellants are nullities the same having been signed by an unnamed individual on behalf of the named principal of the Law Firm.

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ii. Whether the lower Court lacked jurisdiction to entertain the claim against the 1st and 2nd Appellants by virtue of Section 16 of the Limitation Law of Lagos State and the alleged absence of locus standi by the Respondent.

iii. Whether the lower Court was correct in its decision that the Respondent identified the land in dispute between parties.

iv. Whether issue of fraud in the 1st and 2nd Appellants’ title documents was raised by the lower Court suo motu.

v. Whether the evidence of 1st Appellant’s witness (the DW1) was correctly held to be hearsay by the lower Court.

vi. Whether the lower Court was correct in its decision granting the reliefs sought by the Respondent in the suit.”

In arguing the appeal, the learned counsel to the 1st and 2nd appellants B. A. Otukam Iyama, Esq., appearing with T. O. Onyejese relied on his brief of argument filed on 26/1/16 and his reply brief filed on 25/7/16 as his argument in this appeal in urging us to allow the appeal. It was submitted that this case was commenced by originating summons on 8th November, 2004 pursuant to Order 53 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2004.

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Without an order for substituted service under Order 7 Rule 5(1). There was a purported Affidavit of service dated 18th November, 2011 where the defendants were said to have been served by “pasting upon the premises of the 1st Defendant and upon the wall of the buildings of the unknown persons at Obanikoro Area, Lagos.” It was argued that the originating summons was improper and ineffective, the summons having expired after 6 Months, on 8th day of May, 2005 as at which time there was no valid service on the 1st and 2nd Appellants as Defendants. It was argued that there was no order sought or granted to the claimant to renew the summons. Further, that the proceedings from May, 2005 up to the judgment on 20th October, 2010 are incurably bad, null and void. Also, on 1st November, 2006, the learned Judge, Adesanya, J. of the trial Court ordered that the then Defendants be notified of the pendency of this action and the next hearing date by publication of the originating summons and the Enrolled Order of the lower Court in a Nigerian Newspaper with a wide circulation within the jurisdiction of the lower Court in the Punch Newspaper, the case was then adjourned to 29th November, 2006.

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It was argued that the above order showed that the originating summons had not been served on the Defendants. It was submitted that the expired originating summons ought to have been renewed by an application to the trial Court within twelve (12) Months of its issuance. See ANSA v. CROSS LINES LTD (2005) 14 NWLR (Pt. 946) 645 at PP. 648-649. See also Order 6 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules 2004. It was argued that as at the time the originating summons was purportedly served on the 1st and 2nd Appellants, it was ineffectual and in abeyance. Further, that participation of the 1st and 2nd Appellants at the trial did not absolve the Respondent as Defendant of the duty to have renewed the summons. See AYALOGU v. AGU (2002) 3 NWLR (Pt. 753) 168, at pp. 170-171. It was submitted that an inactive writ cannot confer jurisdiction on the Court and it should not be viewed as an irregularity but a fundamental issue which touches on the jurisdiction of the lower Court.

The appellants’ second issue also challenged the jurisdiction of the trial Court to have entertained the matter.

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It was submitted that the 1st and 2nd appellants gave unchallenged and uncontroverted evidence to the effect that they came into possession of their plots of land between 1961 and 1963 respectively. It was contended by the appellants that the Respondent’s cause of action accrued in 1961 and 1963 after the Appellants were put in possession of their respective plots of land while this action was filed in 2004. The alleged wrong was 1961 and 1963 respectively which gave rise to the cause of action. It was argued that the action is statute barred. See AMBODE v. MINISTRY OF FOREIGN AFFAIRS (2004) 14 (Pt. 894) 506 at 511, also Section 16(2) (a) and 21 of the Limitation Law of Lagos State, the period of limitation is twelve (12) years from the date of the accrual of the Right of Action. On when a cause of action matures or arises see, WOHEREM v. EMEREUWA (2004) 13 NWLR (Pt. 890) 398 at 415, PARAS. F-H. Further, that where an action is statute barred, the Court lacks the jurisdiction to entertain the action. See, OBI v. ONYEMELUKWE (2011) 1 NWLR (Pt. 1228) 400 at 427, PARAS. E-F, EGBE v. ADEFARASIN (No. 2) (1987) 1 NWLR (Pt. 47) 1. We were urged to dismiss the action for being statue barred.

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On the issue of locus standi, the appellants challenged the respondent’s legal capacity to institute and maintain the action at the lower Court. It was submitted that the legal capacity to maintain an action is a condition precedent to a determination of a case on the merit. See OWODUNNI v. THE REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2000) 10 NWLR (Pt. 675) 315 at 228-339, UGWUNZE v. ADELEKE (2008) 2 NWLR (Pt. 1070) 148 at 172 PARAS. C-E.

It was submitted that the claimant in proving its purported title, relied upon the Indenture, “Exhibit 2” which recited the purported purchasers in the Indenture to be:

1. Emmanuel Adebiyi Williams
2. Joseph Fagbemiro Ajose
3. Daniel Tanimowo Abraham
4. Simeon Adeniyi Coker
5. Samuel Adeniyi Fashola
6. Godonu Midegbepa Fisher

Further, that comparing Exhibit 1 (Certificate of Incorporation of the Respondent) and 2, it is apparent that the six persons enumerated above were not “all registered trustees of the United African Methodist Church”. From Exhibits 3 and 6 only Emmanuel Adebiyi Williams and Joseph Fagbemiro Ajose were ever trustees of the church.

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The respondent failed to prove that:

i. Daniel Tanimowo Abraham

ii. Simeon Adeniyi Coker

iii. Samuel Adeniyi Fashola

iv. Godonu Midegbepa Fisher;

were ever its registered trustees, who had authority to act on its behalf. Further, that Exhibit J did not list the land claimed as belonging to the Respondent and did not list these four persons as its registered trustees. Therefore, the purported purchasers were not “all registered trustees of United African Methodist Church.”

With the survey plan, it was submitted that the survey plan attached to the Indenture Exhibit 2 bears a name totally different from those of the purported purchasers and that of the Respondent; the respondent did not resolve these contradictions. Also, that looking closely at Exhibit 2, along with the survey plan attached thereto, the words “All Registered Trustees of the United African Methodist Church” bears a different typographic character, and colour from the quality and font of the Indenture. It was contended that the insertion was made much later than the Deed. It was submitted that this complaint was raised at the trial Court but was disregarded.

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It was argued that the Respondent had no civil right and obligations that would enable the lower Court to entertain the suit. See, decision of this Court in AJAGUNGBADE v. ADEYELU II (2000) 16 NWLR (Pt. 736) 126 at 199.

The appellants also contended that the proper parties were not before the trial Court, thus the trial Court had no jurisdiction to entertain the matter.

On laches and acquiescence, it was submitted that the Respondent was not able to dislodge the defence of laches and acquiescence raised by the 1st and 2nd appellants in their respective defence, having taken possession of their respective plots in 1961 and 1963 on the basis of their respective conveyances and titles, until the Respondent filed its suit in November, 2004 the appellants had uninterrupted and undisturbed possession of their respective plots of land, the respondent therefore lost any right to the land if any. It was concluded that from the appellants’ respective statements of defence and evidence led at the trial Court, the 1st and 2nd appellants proved acts of ownership and possession of their respective plots and are exclusive owners of same. See, DURU v. ONWUMELU (2002) VOL. 3 MJSC 155, and

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Section 123 of the Evidence Act, 2011. We were urged to hold that the trial Court had no jurisdiction to have entertained the matter.

For now, I will leave the appellants, issues 3-7 in abeyance and would first resolve issues 1 and 2 that challenge the jurisdiction of the trial Court to have entertained the matter.

I will in a similar manner first consider the respondents first and second issues. In response, the learned senior counsel wale Adesokan (SAN) appearing with Adewale Salawu for the Respondent relied on the respondent’s brief of argument filed on 29/6/17 but deemed filed on 11/7/17, same was adopted as his argument in urging us to dismiss the appeal. Under his first issue, the learned Senior Counsel challenged the competence of each of the statements of defence of the 1st and 2nd appellants as 3rd and 4th defendants respectively. It was submitted that by the provisions of Order 15 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2004 which was applicable when the action was filed, pleadings must be signed either by the litigants themselves or their legal practitioners where represented.

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It was submitted that each of the statements of defence of the appellants was signed by an unnamed individual for and on behalf of the named principal of the law firm of counsel to the appellants, Prince A. A. Kayode, SAN. It was submitted that the name of the person who signed on behalf of the named principal was not indicated, reliance was placed on the case of PMB LTD v. N.D.I.C. (2011) 12 NWLR (Pt. 1261) 253. We were urged to nullify and set aside the 1st and 2nd appellants’ statements of defence and hold that each of the appellants did not file a statement of defence. See, also ODEJAYI v. HENLEY (2013) 27 WRN, 120 at PAGE 142-143.

On the respondent’s second issue, in response to the argument on the Limitation Law of Lagos State, Section 16 (2) and the appellants’ challenge of the respondent’s locus standi, it was submitted in paragraph 19 of the statement of claim pleaded that it was in 1997 that it first noted the presence of the 1st and 2nd appellants on the land, with others. It was submitted that it is the time the cause of action arose that one would compare with the time that the suit is filed that would determine whether or not a suit is caught by the Limitation Law.

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See, OKOLI v. A.G. ANAMBRA STATE (2005) 20 WRN 33, at PP. 51-52. It was argued that the cause of action arose in 1997 when the respondent stated that it saw the Appellants on the respective lands under their occupation and not in 1961 and 1963. We were urged to hold that the cause of action arose in 1997.

Further, that fraud vitiates the defence of Limitation Law in that the respective title documents of the 1st and 2nd Appellants Exhibits HL and M are products of fraud in that it was long after Exhibit 2 of the Respondent had been registered and given possession of the land that the Appellants connived with members of Alashe Family and Administrators of the Estate of Jemi Alade, to repurchase the lands from these vendors. See,I.G.P. v. AKPAN (2008) ALL FWLR (Pt. 425) 1782 and OLUMIDE v. ALIU (2009) 23 WRN 13 at PAGE 38. It was argued that the doctrine of laches and acquiescence would only operate against it if it had actual knowledge of the presence of the intruder on his land. See, RAFAT v. ELLIS (1954) 14 WACA, 430. Further, that the appellants did not make out that the respondent was aware of their presence on the land since 1961 and 1963 respectively to the knowledge of the respondent.

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On the issue of not having locus standi, the respondent argued that the particulars were not supplied to the trial Court. It was submitted that the trial Court rightly found Exhibits 1 and 2 are not fraudulent. It was concluded that there being nothing on the face of Exhibit 2 of the Respondent that the Respondent’s predecessors in title purchased the land in their person capacity, then the 1st and 2nd appellants’ submissions that the land was sold to the Respondent as a body, but as individuals cannot be correct. We were urged to resolve the issues of Limitation Law and locus standi in favour of the Respondent.

I would as in the arguments proffered on behalf of the appellants, keep in abeyance the respondents issues (iii) – (vi) till after the resolution of issues (i) and (ii) if need be.

In reply to the submissions of the learned senior counsel to the respondent, in response to issue one, it was submitted that the issue of the nullity of the statements of defence of the appellants does not flow from any of the grounds of appeal in the 1st and 2nd Appellants amended

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Notice of Appeal and the issue did not also challenge the judgment of the trial Court. See, IBATOR v. BARAKURO (2007) 9 NWLR (Pt. 1040) 475 at 503, PARAS B-D. It was argued that the respondents neither filed a respondent’s Notice nor cross appeared. See, MOMODU v. MOMOH (1991) 1 NWLR (Pt. 169) 608 at 620-621 PARAS. H-A; UMANA v. ATTAH (2004) 7 NWLR (Pt. 871) 63 and MBN PLC & ANOR v. NWOBODO (2005) 14 NWLR (Pt. 945) 379 at 387 PARAS C-D. We were urged to strike out the respondents issue one for being incompetent.

In the alternative, in response to the issue, it was submitted that it is only Prince A. A. Kayode, SAN that can claim that the mark is not his signature against his name or was not put on his direction, he has not denied signing the processes and there is no dispute about the signature therefore, the respondent is not right to have raised the objection.

On the second issue, it was submitted that, it is the time the cause of action arose and the time the suit is filed that are taken into consideration by the Court. See, EBOIGBE v. N.N.P.C. (1994) 5 NWLR (Pt. 347) 649 at 659 PARA. A. It was submitted that the event that gave rise to the

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respondents’ cause of action against the appellants occurred in 1961 and 1963 respectively. The accrual of a cause of action is not dependent on the knowledge of the Respondent but on when the appellants went onto their respective plots of land. It was concluded that knowledge of trespass or adverse possession is not a pre-condition to a successful plea of the limitation law. See, AJIBONA v. KOLAWOLE (1996) 10 NWLR (Pt. 476) 22 at 36. We were urged to resolve this issue in favour of the appellants and against the respondent.

The appellant’s first issue challenged the competence of the writ of summons that purportedly activated the jurisdiction of the trial Court and its decision that gave rise to the appeal by the appellants.

No doubt, the suit was commenced by originating summons on 8th November, 2004. Order 6 Rules 6(1) and (2) of High court of Lagos State (Civil Procedure) Rules, 2004 provided the general rule requiring originating processes to be served within six (6) months and if not served within six months, parties may apply for a renewal of the originating process; Order 6 Rules 6 (1) and (2) provide as follows:

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Order 6 Rules 6 (1) and (2)

(1) “The life span of every Originating Process shall be six (6) months.

(2) If a judge is satisfied that it has proved impossible to serve an Originating Process on any Defendant within its life span and a claimant applies before its expiration for renewal of the process, the judge may renew the original or concurrent process for three (3) months from the date of such renewal. A renewed Originating Process shall be in Form 6 with such modifications or variations as circumstances may require.”

There is an affidavit of service deposed by the bailiff of the High Court on 18th November, 2004 to the effect that service was effected on the appellants on 10th November, 2004 by pasting the originating process on the wall of the house of the 1st defendant and on the wall of the buildings of “unknown persons”, that is, by substituted means. There is nothing on record to show that leave was sought and granted to the respondent to serve the appellants by substituted means two days after the issuance of the originating summons. Order 7 Rule 5 (1) of the High Court of Lagos State (Civil Procedure) Rules provides as follows:

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Order 7 Rule 5(1):

5(1) “Where personal service of an Originating Process is required by these Rules or otherwise and a judge is satisfied that prompt personal service cannot be effected, the Judge may upon application by the Claimant make such order for substituted service as may seem just.”

On the other hand, effort has to be made to effect personal service and where it proves impossible to achieve, it would then entail an application for substituted service. That was not the case here. With the substituted service by pasting on the walls of “unknown persons”, the unknown persons could have been identified for the purpose of personal service. Failure to comply with Order 7 Rule 5(1) in the service of the originating summons is fatal by virtue of the provisions of Order 5 Rule 1 (1), the proceedings are a nullity. An originating summon must be effectively served for it to confer jurisdiction on the Court. No doubt, there was no renewal of the originating summons and no proper service was effected by the appellants before the judgment of the trial Court on 20th October, 2010.

In the case of SOCIETE GENERALE BANK NIGERIA v. JOHN ADEBAYO ADEWUNMI (2003) LPELR-3081 (SC)

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PP. 15-18 PARAS B-A (2003) 10 NWLR (Pt. 829) P. 526 (2003) 4 SC (Pt. 1) P. 93, the Supreme Court held that:

“Service of a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seized of the matter. Clearly due service of process of Court is a condition sine quo non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set aside as a nullity.”

Thus, the Supreme Court made it clear that failure to serve a process is a fundamental vice, it deprives the trial Court of the necessary competence and jurisdiction to hear the suit. The condition precedent to the exercise of jurisdiction was not fulfilled. The trial Court had no jurisdiction to have heard the matter without ensuring that the appellants had been served with the originating process. See, also OBIMONURE v. ERINOSHO and ANOR (1966) ALL NLR (REPRINT) 250 at 253, ADEGBOLA v. OSIYI & ORS (2017) LPELR-4247, (SC) and SKENCONSULT (NIG.) LTD & ANOR v. UKEY (1981) LPELR-3072 (SC) PP. 22-23, PARAS. D-G.

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The learned Senior Counsel had argued that the respondent also served the appellants the Originating Processes following the order of the learned judge, Adesanya, J. granted on 1st November, 2006 that service be by substituted means that is by publication of the originating summons and the enrolled order of the Court in a Nigerian Newspaper with a wide circulation within the jurisdiction of the Court, following which the publication was made in the Punch Newspaper of 15/11/06. An affidavit of service was deposed to that effect on 22nd November, 2006 page 77 of the printed records. I would think that if service of the originating summons had been effected on the appellants, the Court would not have ordered service of same by substituted means of publication in the Newspaper. This clearly shows that no service had been effected prior to the date the order for substituted service was made.

From the date the originating process was taken out on 8th November, 2004 and 15th November, 2006 when the publication in the Newspaper was made, the process to be served was no longer in force, it had expired and there was

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nothing on record to show that it was renewed up till the point of the publication. It was a dormant and ineffective process which had not been reactivated or the life renewed. The renewal would be on application to the Court. There was none in this case. See, RFG LTD and ANOR v. SKYE BANK PLC (2012) LPELR-7880 (CA) P. 22, PARAS. C-F and the Apex Court’s decision, MICHAEL KOLAWOLE v. PEZZANNI ALBERTO (1989) LPELR-1700 (SC). On the other hand, the application ought to have been done before the expiration of the originating process. The effect of an expired originating process is that it is in abeyance and can only be reactivated through an application within twelve (12) months of its issuance. Order 6 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules, 2004 provides that:

7. “A judge may order two renewals in each case strictly for good cause and upon prompt application, provided that no Originating Process that has not been served shall be in force for longer than a total of twelve (12) months.

The registrar shall state the fact, date, and duration of renewal of every renewed Originating Process.”

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See, AWOJOLU v. ODEYEMI & ORS (2012) LPELR-14796 (CA), EWUKOYA & ANOR v. BUARI & ORS (2016) CA, KOLAWOLE V. ALBERTO (supra), Further, the parties cannot waive the requirement that an expired originating process be renewed before service is effected. In AYALOGU v. AGU (supra), this Court rejected the renewal of an expired writ suo motu by the trial Court; this Court held that the renewal has to be on the application by the plaintiff. In the present case, there was no evidence that the originating process published in the Punch Newspaper of 15th November, 2006 had been renewed following an application to the trial Court for the extension of the life of the originating process and the Court cannot suo motu renew the life of an expired originating summons that commenced the action. See, also MTN v. ARE (2014) LPELR-23807 (CA).

The purported service of the originating summons is not an irregularity that could be waived aside, it is fundamental and touches on the jurisdiction of the Court. The resultant effect is that the originating process utilized to commence the action against the 1st and 2nd appellants was invalid.

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Surprising, the learned Senior Counsel in his brief of argument and submissions had no answer to the appellants’ first issue and did not react to it in any way, I guess he had no answer to the improper service and/or the second service of a dormant, dead and expired originating process. There was no reaction at all in the entire brief to the appellants’ issue on the competence of the trial Court to have heard the case. Instead, the learned Senior Counsel challenged the appellants’ statement of defence at the lower Court. The judgment of the lower Court was in favour of the respondent. The respondent cannot therefore, through the grounds of appeal raised by the appellants challenging the decision, raise the issue of the competence of the appellants’ statement of defence. If the respondent wished to challenge the appellants’ statement of defence, it ought to have filed a Respondents’ Notice that the judgment against the 1st and 2nd appellants be affirmed on some other grounds other than those utilized in giving judgment in favour of the Respondent. The learned Senior Counsel was wrong to have raised his issue one which did not arise from the appellants’ grounds of appeal, the respondent’s issue one

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and all the argument in its support are discountenanced. The appellants’ first issue is resolved against the respondent.

Having held in issue one that the action was commenced on a dormant originating process there would be no need to go into the rest of the issues raised by the parties, as the entire trial is a nullity in respect of the appellants, but like flogging a dead horse, I would briefly examine the appellants’ second issue which also challenged the trial Court’s jurisdiction to have entertained the matter. The appellants gave evidence that they came into possession of their plots of land in 1961 and 1963 respectively. The 1st Appellant made out that he bought the land in 1961, developed same and let out parts of it to tenants. He tendered receipts from tenants, Exhibit ‘K’. While the 2nd Appellant made out that he bought his plot in 1963 and also developed same and in 1965, he was issued a permit to occupy the property. Therefore, the cause of action arose in 1961 and 1963 respectively when the appellants started occupying the land. The present action was filed in 2004.

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Section 16(2) (a) and 21 of the Limitation Law of Lagos State extinguishes a party’s right of action or title to land at the expiration of the period of limitation which is twelve years from the date of the accrual of the right of action.

The learned Senior Counsel had argued that the Respondent did not know that there were trespassers on the land but, accrual of cause of action does not depend on knowledge (of the an alleged trespass) of the respondent, it runs from the date of the adverse possession, in this case 1961 and 1963 respectively, see Sections 16, 17, 19 and 21 of the Limitation Law of Lagos State. I am of the view that the action is statute barred and ought not to have been entertained by the trial Court, which lacked jurisdiction to do so. See CHIEF E. W. J. WOHEREM JP v. JOEL EMEREUWA & ORS (2004) LPELR-3500 (SC) PP. 16-17, PARAS E-A; (2004) 13 NWLR (Pt. 890) P. 398 (2004) 6-7 SC P. 161. In AREMO II v. ADEKANYE and ORS (2004) LPELR-544 (SC) P. 18, PARAS. B-D, per Edozie, JSC on determining the period of limitation held thus:

“The period of limitation begins to run from the date on which the cause of action accrued. To determine whether an action is statute barred, all that is required is for one to

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examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See the case of EGBE v. ADEFARASIN (1987) 1 NWLR (Pt. 47) 1 at 20-21.”

The above decision of the Apex Court says it all. The appellants’ second issue is resolved against the respondent.

As I said earlier in this judgment, looking into the rest of the issues would not be necessary having held that there was no proper service of the originating summons on the appellants and the second attempt on service was of a process that was dormant. The judgment of the trial Court of 20th October, 2010 against the 1st and 2nd Appellants having been premised on a dormant and invalid originating summons is itself invalid and a nullity, same is hereby set aside.

CA/L/1143A/10.

The 3rd to 7th Appellants (hereafter known as simply the appellants) were sued at the trial Court as “PERSONS UNKNOWN” and said to have been served with

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the originating summons taken out on 8th November, 2004 by substitution, on the 10th day of November, 2004. They were NOT aware of the proceedings until the case went on appeal. The appellants were granted leave to appeal as interested parties on 19/3/12. From their Notice of appeal filed on 29th March, 2012, the appellants identified five (5) issues for the determination of the appeal thus:

1. “Whether there was proper service of the originating Court processes on the Defendants now Appellants sued as (1) The Estate of Late Akin Joaquim; and (2) Persons Unknown in the High Court of Lagos State. Ground 3.1 of the Notice of Appeal dated 29/3/2012.
2. Whether the failure of the learned trial judge to call for oral/written address by parties when the trial Court raised the issue of fraud suo motu has occasioned substantial miscarriage of justice in the circumstances of this case. Grounds 3.3 and 3.7 of the Notice of Appeal dated 29/3/2012.
3. Whether the refusal of the learned trial judge to consider the applicability of the Limitation Law of Lagos State and equitable doctrine of laches and acquiescence in view of the alleged “finding of the

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element and environment of fraud in relation to Exhibits H, L and M” tendered before the learned trial judge has not occasioned substantial miscarriage of justice. Grounds 3.4, 3.5 and 3.6 of the Notice of Appeal dated 29/3/2012.

4. Whether the learned trial judge of the High Court of Lagos State properly establish (sic) the true identity of the land in dispute when the Court merely relied on inspection and comparison of the co-ordinates in Exhibits 1 and 2 with the co-ordinates in Exhibits 7, 8, and 9 without any expert’s evidence. Ground 3.2 of the Notice of Appeal dated 29/3/2012.
5. Whether the learned trial judge was right when he entered judgment in favour of the Respondent herein. Ground 3.08 of the Notice of Appeal dated 29/3/2012.”

In response, the respondent raised a preliminary objection and in the alternative responded to the issues raised by the appellants. I will later consider the preliminary objection.

The respondent on its part distilled the following five (5) issues for the determination of the appeal:

i. “Based on the Record of Appeal and considering the fact that a counsel actually initially appeared for the

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Appellants at the Court below, whether the 3rd-7th Appellants can be heard to allege lack of service of the Respondent’s originating Court’s process on them.

ii. Whether the lower Court was correct in its decision that the Respondent’s suit was not statute barred.

iii. Whether the lower Court introduced issue of fraud suo motu, which adversely affected the correctness of the decision that the entire land in dispute belonged to the Respondent.

iv. Whether the lower Court was right in holding that the Respondent identified the land in dispute between the parties.

v. Whether the lower Court was right in its decision granting the reliefs sought by the Respondent in the suit.”

The learned counsel to the appellants, J. A. Awolade appearing with M. O. Afolabi relied on his brief of argument filed on 19/11/12 and a reply brief filed on 19/9/17 but deemed filed on 8/11/17, adopted both briefs as his argument in this appeal. The learned counsel argued that the crux of their appeal is that the appellants were not served with the originating processes but that they got to know of the pending matter on appeal and applied to be joined.

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It was submitted that the process was pasted on the wall of unknown persons but, that the 3rd appellant has a clinic where he could have been found and served. The affidavits of service deposed to by the bailiff were referred to, at pages 35 and 36 of the printed records of appeal to the effect that the “unknown persons” were served by pasting on the wall of their buildings on 10th November, 2004. Reliance was placed on Order 7 Rules 1(1), 2 and 5(2) of the High Court of Lagos State (Civil Procedure) Rules 2004. It was argued that the appellants were purportedly served the originating processes on the 10th day of November, 2004 by substituted means without any Court order and within only two (2) days of the filing of the Court processes. It was submitted that the processes were void ab initio and that the judgment of the trial Court based on the lack of proper service of the originating process cannot stand. It was submitted that the lack of proper service on the appellants robbed the trial Court of its jurisdiction to entertain the suit. See, MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587 at 594; AGIP (NIG.) LIMITED v. EZENDU & 9 ORS (2010)

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1 SC (Pt. 11) 98 at 129-130 and FIRST BANK OF NIGERIA PLC v. T.S.A. INDUSTRIES LIMTTED (2010) 4-7 SC (Pt. 1) 242 at 316-317. It was the contention of the learned counsel that the trial Court’s reliance on the Bailiff’s affidavit of service has occasioned a substantial miscarriage of justice. See, RAUFU WILLIAMS v. AJAGA & ORS IN RE-ALHAJI AMUSA AROWOLO (1993) 2 NWLR (Pt. 275) 317 at PAGES 330-331 where Irikefe, JSC in ODUOLA v. NABHAM (1981) NSCC VOL. 12 PAGE 180 at 194 was referred to. We were urged to hold that the improper service of the originating processes is a fundamental omission which renders such proceedings void as the Court had no jurisdiction to entertain it. See, WEMA BANK & 2 ORS v. ODULAJA & 4 ORS (2000) 3 SC 83 at 87. We were urged to resolve the appellants issue one in their favour.

Before the respondents response to the appellants issue one, I would examine the preliminary objection raised by the learned Senior Counsel Wale Adesokan (SAN) appearing with Adewale Salawu in his brief of argument filed on 29/6/17 but, deemed filed on 11/7/17. The grounds are as follows:

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GROUND 1

That the learned trial judge did not make any holding on the question of service (as it was not an issue before the Court) as to make same a ground of appeal.

GROUND 2

That the 3rd to 7th appellants did not join issues with the Respondent on the question of identity as to entitle them to question the finding of the Court on the identity of the land in question.

GROUND 3

That the learned trial judge did not make any finding of fraud against the 3rd to 7th Appellants which would entitle them to ground an appeal on findings of fraud allegedly made against the 1st and 2nd appellants.

Under the first ground which relates to ground one in the Notice of appeal, it was argued that service was effected in compliance with Rule 4 (1) (b) of Order 53 of the High Court of Lagos State (Civil Procedure) Rules, 2004. Further, that even after appearances the learned pre-trial judge on 1/11/06 suo motu ordered that the originating summons and the enrolled order of Court be served by substituted means i.e. by publication in The Punch Newspaper. The order was complied with and an Affidavit of compliance duly filed.

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It was argued that the issue of service was never in question as that had been settled and parties fully participated through their counsel. Similarly, that the questions of locus, cause of action and limitation law were settled, with the 3rd to 7th appellants to furnish evidence at the trial that the case was statute barred. It was also stressed that there is no appeal against any order made regarding service or on the ruling regarding locus, cause of action and limitation in the notice of preliminary objection by the pre-trial judge.

It is noteworthy that ground 2 of the preliminary objection is similar to the respondent’s issue four (iv), while ground 3 in the preliminary objection was covered by the respondents issue (iii) in the main appeal. I would come to these grounds later if need be.

With the main appeal argued in the alternative should the preliminary objection fail, in arguing his issue one, which is similar to the appellants issue one, the learned Senior Counsel relied on his brief of argument already highlighted above. It was submitted by the learned senior counsel in his brief of argument that unknown persons could be served by pasting on the land in occupation by squatters,

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similarly a known defendant such as The Estate of the Late Akin Joaquim the 1st defendant could be served by pasting the process on the premises in its occupation, see, Order 53 Rule 4(1). It was argued that in addition, by an order of the lower Court of 1/11/06, a publication of the summons was made in the Punch Newspaper of 15/11/06, pages 356-357 of the printed records.

It was the contention of the learned Senior Counsel that the appellants herein did not react to the summons pasted on the walls of the houses in their occupation in addition to the Punch Newspaper Publication even though they saw the summons. It was once again argued that the learned trial judge did not decide the issue of either lack of service on the appellants of the respondents’ processes or the manner of the service of the Court’s process. We were urged to strike out ground 3.1 of the appellants’ Notice of Appeal from where issue one is distilled as well as issue one. See, SHETTIMA v. GONI (2011) 18 NWLR (Pt. 1279) 493 at PAGE 532-533. OSSAI v. F.R.N. (2013) WRN 87 and P.D.P. v. I.N.E.C. (2015) 2 WRN 99. It was concluded that the appellants were duly served with the Respondent’s

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originating process and that a counsel briefly appeared for the appellants at the lower Court. Further, that the only grudge is that the service was by substituted means. We were urged to dismiss the appeal.

I will later come to the other issues raised by the parties.

On the part of the appellants, in their reply brief, in respect of the preliminary objection on the issue whether the originating process was properly served in accordance with the provisions of the High Court of Lagos State (Civil Procedure) Rules 2004, was argued to be fundamental and jurisdictional. Further, under ground one of the preliminary objection, that non-compliance with order 7 Rules 1 (1), 2 and 5(2) of the High Court of Lagos State (Civil Procedure) Rules, 2004 is fatal to the respondent’s case.

In reply to the submissions in respect of issue one in the main appeal, the learned counsel to the appellants noted that the respondent’s first issue for determination is the same as Ground 1 of its Notice of Preliminary objection, the learned counsel adopted his argument under ground one of the Notice of preliminary objection.

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It was argued that the issue of service of originating process is fundamental to assumption of jurisdiction by the trial Court. Also, that issue of jurisdiction can be raised at any stage of the proceedings even on appeal or at the Supreme Court, even where the issue was not raised at the trial of the substantive action. We were urged to discountenance the respondent’s argument under issue one.

It is trite that where a preliminary objection has been raised in the case of an appeal, against the entire appeal or part of it, same has to be looked into first and resolved before going into the substantive appeal or the rest of the issues if need be. See,EMMANUEL I. OLAGBENRO and ORS v. PRINCE SALIU OLAYIWOLA & ORS (2014) LPELR-22595 (CA), P. 59, PARAS. B-C; (2014) 16 NWLR (Pt. 1434) P. 313; F.B.N. PLC v. T.S.A. INDUSTRIES LTD (2010) LPELR-1283 (SC), P. 13, PARAS. B-E and ACHONU v. OKUWOBI (2017) LPELR-42102 (SC) PP. 4-5, PARAS. E-A. The learned Senior Counsel in his preliminary objection under his ground one which relates to ground one in the Notice of appeal had submitted that service had been effected on the appellants in compliance with the Rules of the High Court of Lagos State and by an

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order of the pre-trial judge the appellants were served by substituted means, by publication in the Newspaper. It had been argued that the issue of service was not an issue before the trial Court and that there was no appeal against any order made regarding service on the appellants. To these submissions, I would say that the issue of service is jurisdictional and can be raised at any stage, even at the Supreme Court. It need not have formed part of the judgment of the lower Court contrary to the submissions of the learned Senior Counsel. In the case of P.D.P. and ORS v. EZEONWUKA & ANOR (2017) LPELR-42563 (SC) P. 92, PARAS. A-D his Lordship, Muhammad JSC at page 92, paras. A-D in this respect reiterated thus:

“It has long been settled that the issue of jurisdiction may, by whatever name, form or shade, be raised and at any stage. The issue, the principle further allows, may be raised even viva voce and for the first time in this Court. The rationale behind the principle lies in the fact that jurisdiction remains the fulcrum of any valid adjudication as without it the entire proceedings of the Court, no matter how well conducted, is an exercise in

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futility being a total nullity. See,OMOKHAFE v. ESEKHOMO (1993) LPELR-2649 (SC) UKAEGBU v. UGOJI (1991) 6 NWLR (Pt. 196) 127, OMOMEJI & ORS v. KOLAWOLE & ORS (2008) LPELR-2650 (SC).”

Further, before the appeal was argued on 8/11/17, in course of which the preliminary objection was argued by the learned Senior Counsel, the learned counsel to the appellants, Mr. Awolade, Esq., moved his application filed on 19/9/17 to raise and argue his ground 3.1 bordering on the issue of service in his Notice of appeal dated 29/3/12, argued under issue one in his brief of argument. The learned Senior Counsel did not oppose the application which was thereafter granted. The learned Senior Counsel must have forgotten that the application to raise and argue the appellants’ issue one formulated from their ground 3.1 had been granted. The said issue one was also adequately responded to by the learned Senior Counsel under his issue one. Therefore, the preliminary objection ought to have been withdrawn. I hold that the preliminary objection is without merit, same is dismissed.

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With the main appeal, the appellant’s first issue is the question as to whether the 3rd-7th Appellants sued as “persons unknown” were properly served with the originating processes? The originating summons was taken out on 8th November, 2004. The affidavit of service of the bailiff of the Court deposed in his affidavit of service at pages 35-36 of the printed records that the 1st defendant at the lower Court was served on 10/11/04 by pasting at the gate and service was also effected by pasting the originating processes on the wall of the buildings of “unknown persons”. The service was by substituted means without an order of Court to that effect. This mode of service was done on 10th November, 2004, within two (2) days of the filing of the Court processes. There is nothing on record to show that an order of Court was sought and granted that the service be effected by substituted means, by pasting. The respondent has not argued so. It is when an application is sought, then it would be necessary to depose to facts to the effect that it was impossible to effect personal service on the appellants, thus the application.

Order 7 Rules 1 (1), 2 and 5 (2) of the High court of Lagos State (Civil Procedure) Rules 2004 provide for personal

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service of originating processes and on application, by substituted means, it provides as follows:

1. (1) “Service of originating process shall be made by a Sheriff, Deputy sheriff, Bailiff, Special Marshal or other officer of the Court… ”

(2) The process server shall serve an originating process by delivering to the party to be served a copy of the process duly certified as prescribed by Order 6 Rules 2(3).

5. (1) Where personal service of an originating process is required by these Rules or otherwise and a Judge is satisfied that prompt personal service cannot be effected, the Judge may upon application by the claimant make such order for substituted service as may seem just.

(2) Every application to the Judge for substituted or other service, or for the substitution of notice for service shall be supported by an affidavit setting forth the grounds upon which the application is made.”

The respondent failed to comply with the provisions of the above rules. The service of an originating process is a condition precedent which must be fulfilled that would confer jurisdiction on the Court to entertain a matter.

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Any matter in which service is not effected on the other party is fundamental and not an irregularity that could be waived. A case must be properly initiated to confer jurisdiction on the Court, otherwise the proceedings are a nullity. See the popular case of MADUKOLU and ORS v. NKEMDILIM (1962) 1 ALL NLR 587 at 594 also S.G.B.N. LTD v. ADEWUNMI (2003) 10 NWLR (Pt. 829) P. 529 and ADEGBOLA v. OSIYI & ORS (2017) LPELR-42471 (SC) PP. 7-9, PARAS. E-A.

From the affidavit of service, the process was pasted on the wall of “unknown persons”, those in occupation ought to have been served personally if truly the appellants were in occupation. The purported service by pasting on the wall of the “unknown persons” was improper. It was argued by the learned Senior Counsel that apart from pasting on the wall of “unknown persons” the writ of summons was ordered by the pre-trial judge suo motu to be served on the appellants by substituted means. The order was made on 1/11/06, the service was published in The Punch Newspaper of 15/11/06 and there was an affidavit of service of 22/11/06 to that effect. If there was service effected on the appellants on 10/11/06, the question is:

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why would the trial Court suo motu make an order that the appellants be served by substituted means, by publication in a widely read newspaper resulting in the Punch Newspaper Publication of 15/11/06. This question remains unanswered. The implication is that there was no proper service in the first place.

I had earlier held in this judgment that there is nothing on record to show that there was an application for substituted service. On the other hand, as at 15/11/06, the date of the Newspaper publication, the writ of summons had become dormant and ineffective for service. There was no application sought and granted to show that the writ taken out on 8th November, 2004 had been renewed continuously for it to have been effectively served on 15/11/06. In the case of MOBILE TELECOMMUNICATIONS NETWORK (M.T.N.) v. H.R.H. OBA RAPHAEL SUNDAY ARE and ORS (2014) LPELR-23807 (CA) at PP. 27-28, PARAS. C-F, on service of an expired writ of summons, I had held that:

“It is the law that a writ of summons which has not been served for twelve (12) months remains valid but lies dormant and ineffective for service waiting to be

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reactivated and rendered efficacious in the manner prescribed by the rules of Court. The Court can grant an application which will render the writ as effective as when it was issued originally and before the period of twelve months elapses. In this case, there was no application sought nor granted. See: KOLAWOLE v. ALBERTO (1989) 1 NWLR (Pt. 98) 392, 20 NSCC (Pt. 1) 213. In above case, His Lordship then of the Apex Court, Karibi-Whyte, JSC at page 231 explained the position of the law thus:- “A writ of summons which has not been served for twelve (12) months remains a valid writ of summons, but lies dormant and ineffective for service waiting to be reactivated and rendered efficacious in the manner prescribed by rules of Court. The Court can grant an application which will render the writ as effective as when it was issued originally and before the period of twelve months elapsed. “See, also IDOWU v. BAMIJOKO (1996) 7 NWLR (Pt. 461) 496 which interpreted Rule 6 of Order 5 of the Lagos State High Court (Civil Procedure) Rules which is in pari materia with Kwara State Rules in Order 6 Rules 6(1) and (2), see, RFG LIMITED & ANOR v. SKYE BANK PLC (2012) LPELR-7880 (CA) to the

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effect that no proper service can be effected or emanate from an expired writ of summons. The service of a dormant originating process deprived the lower Court of the requisite jurisdiction to hear the matter. In my humble view, the lower Court had no jurisdiction to try the matter and I so hold.”

The service of an originating Court process is fundamental and it activates the jurisdiction of the Court, where it is lacking, any decision of the Court without such service renders the entire proceedings a nullity.

His Lordship of the Apex Court, Kekere-Ekun, JSC clearly and succinctly explained the importance or essence of the service of an originating process and the consequences of failure to do so in the case of EMEKA v. OKOROAFOR (2017) LPELR-41738 (SC) PP. 31-33, PARAS. D-E thus:

“My Lords, I deem it appropriate to commence the resolution of this issue by considering briefly the law governing the service of originating processes. The settled position of the law was clearly stated by His Lordship, Musdapher, JSC (as he then was) in KIDA v. OGUNMOLA (2006) 6 SCNJ 165 @ 174 thus: ” service of process, is crucial and fundamental.

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See AUTO IMPORT EXPORT v. ADEBAYO (2002) 18 NWLR (Pt. 799) 554; S.G.B.N. v. ADEWUNMI (2003) 10 NWLR (Pt. 829) 526; MBADINUJU v. EZUKA (1994) 8 NWLR (Pt. 364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of the court’s jurisdiction was not fulfilled.” To underscore the importance of service, His Lordship continued at page 175 lines 5-7 (supra); “Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of counsel since where there is no service, there is no valid trial.” The principle was re-stated in the recent decision of this Court in; IHEDIOHA v. OKOROCHA (2016) 1 NWLR (Pt. 1492) 149 @ 179 D-F by Okoro, JSC: ” I agree that it is not every non-compliance with the Rules of Court that should vitiate the proceedings. However, where the non-compliance robs the Court of its jurisdiction, the processes and the proceedings must be set aside. I must emphasize that service of process is an important aspect of the judicial process.

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Failure to serve a named party with Court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) …. Any beach (sic) of this principle (of fair hearing) renders the proceedings a nullity. See: CHIME v. ONYIA (2009) ALL FWLR (Pt. 480) 673 @ 730-731 PARAS. H-B; (2009) 2 NWLR (Pt. 1124) 1. “See also: SKENCONSULT (NIG.) LTD v. UKEY (1981) 1 SC 6: OBIMONURE v. ERINOSHO (1966) 1 ALL NLR 250; CRAIG v. KANSEEN (1943) K.B. 256; NATIONAL BANK (NIG.) LTD v. GUTHRIE (NIG.) LTD. (1993) 3 NWLR (Pt. 284) 643. It is therefore settled beyond dispute that the service of an originating process on a party to an action is a condition precedent to the exercise of the Courts jurisdiction, as any party against whom a suit or process is filed has the right to know that a suit had been instituted against him, what the claims are and an opportunity to defend himself if he has a defence thereto.”

On this note, the purported services of the writ of summons on the appellants by pasting on the walls of “unknown persons” as well as the purported substituted service by the publication in The Punch Newspaper of 15/11/06 were improper.

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The appellants’ first issue is resolved in their favour.

Having held that there was no proper service on the appellants, the entire proceedings and decision of the trial Court in respect of the appellants is a nullity, therefore there would be no need to resolve issues two to five, it would be a mere waste of time as the result would be of no value to any of the parties.

In sum, I allow the appeal for being meritorious. The judgment of the trial Court against the 3rd-7th Appellants (appellants) is set aside.

CA/L/1143B/10

The 8th Appellant on the 10th day of October, 2012 was granted leave to appeal against the judgment of the trial Court delivered on 20th October, 2010 amongst other reliefs sought and granted, as an interested party. Thereafter the Notice of appeal was filed on 15/10/12. From the said Notice of appeal, the appellant distilled two (2) issues for the determination of the appeal thus:

(1) “Whether having struck out the 8th Appellant’s name from the proceedings on the ground that it was not a legal entity in law, the Court below was right to have made an order against the 8th Appellant? Ground 2

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(2) Whether the learned trial judge was right when he found and held that the 8th Appellant encroached between 1/5 and/or 1/6 on the Respondents land?” – Ground 1.

The respondent on its part distilled three (3) issues for the determination of the appeal thus:

i. Whether the 8th Appellant herein can be said to have filed an invalid defence at the lower Court, when her only statement of Defence dated April 26, 2007 was not signed either by her or her legal practitioner this leaving room for the Respondent’s suit to succeed on minimal proof.

ii. Whether the 8th Appellant was deprived of anything by the singular observation of the lower Court that the said 8th Appellant ought to have furnished the names of the Administrators/Administratix of Estate of the Late Akin Joaquim while striking out the name of that party from the suit at her instance.

iii. Whether the lower Court was correct in granting the reliefs sought by the Respondent against the 8th Appellant over the land municipally known as No. 37 Buraimoh Street, Obanikoro, Lagos State (also known as Plot 16, Aleshe Family Layout) on the preponderance of evidence of parties.”

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In arguing the appeal, the learned counsel to the 8th Appellant (hereafter referred to as the appellant) Prof. O. G. Amokaye appearing with Dr. Adejonwo-Osho and F. Hughes relied on his brief of argument filed on 22/11/12 and his reply brief filed on 12/9/17 but deemed filed on 8/11/17, adopted both briefs as his argument in this appeal. It was submitted that at the lower Court, the 8th Appellant was the 1st Defendant and was sued in the name of “Estate of Late Joaquim”. At the trial, the appellant’s learned counsel raised an objection challenging the competence of the Respondent’s suit against the 8th appellant on the ground that the Estate of Late Joaquim is not a legal entity. The learned trial judge in his judgment struck out the name of the 1st defendant (now appellant) from the suit. Pages 509-510 of the printed records of appeal. It was submitted that the striking out order meant that the Appellant was no longer a party to the suit, thus no order would be made against it in the proceedings as an order cannot be made against a non-party. It was argued that the learned trial judge having struck out the action against the Estate of Late Joaquim acted in excess of

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its jurisdiction to have made a consequential order granting proprietorship, recovery of possession and perpetual injunction against the Estate of Late Joaquim in favour of the Respondent. See, NIGERIAN FOOTBALL COACHES ASSOCIATION & ANOR v. LALOKO & ORS (2003) FWLR (Pt. 1440) 482 at 496. Further, that the trial Court having found that the action against the Estate of Late Joaquim is incompetent ought not to have proceeded to determine the merit of the case as it concerned the 8th Appellant. It was concluded that an order cannot be rightly made against a non-party. See ADENUGA v. ODUMERU (2003) 4 SC (Pt. 1) at 13 and GREEN v. GREEN (1987) 2 NSCC (Pt. II) 1115.

In response to the argument of the learned counsel to the appellant, the learned Senior Counsel Wale Adesokan (SAN) appearing with Adewale Salawu relied and adopted the arguments in his brief of argument filed on 29/6/17 but deemed filed on 17/7/17 in urging us to dismiss the appeal.

The learned Senior Counsel agreed that the “the Estate of the Late Akin Joaquim” now represented by the appellant had been struck out in course of the judgment on the request of the appellant.

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Further, it was submitted that the trial Court was right to have proceeded to consider the defence of the Appellant. It was contended that the appellant did not allege lack of fair hearing in its brief of argument having participated fully in the proceedings at the trial Court. It was concluded that the appellant ought not to have appeared against the judgment since she was not deprived of anything. We were urged to dismiss the appeal.

In reply to the submissions of the learned senior counsel to the respondent, it was reargued that the appellants name having been struck out by the trial Court, it was wrong for the same Court to have granted reliefs against a struck out party because such order is a nullity. See, OVUNWO & ANOR v. WOKO & ORS (2011) 7 SCM 207 at 231-232 and OYEYEMI & ORS. v. OWOEYE & ANOR (2017) LPELR-41903 (SC) at 27-28.

On the respondent’s first issue, it was submitted that the issue is not related to the appellant’s grounds of appeal and that the respondent did not file a Respondent’s Notice or a cross-Appeal on this issue that the judgment be affirmed on this ground.

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It was argued that the issues for determination must be formulated from the grounds of appeal. It was argued that the appellant’s statement of defence at the lower Court is valid and was property endorsed by Amokaye Oludayo, Esq. We were urged to discountenance the argument challenging the validity of the statement of defence.

I have examined the issues formulated by the parties for the determination of the appeal. The appellant’s first issue was responded to in the respondent’s second issue, while the respondent in its first issue challenged the validity of the appellant’s first issue, the appellants first issue and the respondent’s second and third issues were on evaluation of the evidence by the lower Court. I would utilize the issues as formulated by the appellant in determining the appeal.

On the appellant’s first issue, no doubt the appellants name was struck out by the learned trial judge in his judgment, at pages 509-510 of the printed records of appeal as not being a juristic person against whom a legal action is maintainable. Therefore, after the striking out order, the appellant was no longer a party in the suit.

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The respondent has not argued that the appellant was not struck out from the action in the judgment of the trial Court. The question is: having struck out the action against the appellant, was the trial Court right to have made consequential orders against the appellant. (The Estate of Late Joaquim) in favour of the respondent? The trial Court having found the action against the Estate of the Late Joaquim, (the appellant) is incompetent ought not to have proceeded on the merits of the case in respect of the appellant. The trial Court having struck out the name of the appellant no longer had the power to make any consequential order against the appellant; any order in that respect is a nullity. See, ADENUGA v. ODUMERU (2003) 4 SC (Pt. 1) P. 1 at 13 and OYEYEMI & ORS v. OWOEYE and ANOR (supra) cited and relied upon by the learned counsel to the appellant to the effect that any order against a non-party is not binding on the said party. I hold that the trial Court having found that the action against the Estate of Late Joaquim ought not to have proceeded on the merits of the case and given an order against the same party that had been struck out by the Court in the same judgment. The appellant’s first issue is resolved in her favour.

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Resolution of the second issue would be merely academic, having held that the lower Court ought not to have made any order in respect of the appellant whose name had been struck out as a non juristic person. The second issue is hereby discountenanced.

In respect of the respondent’s first issue for whatever it is worth, which challenged the validity of the appellant’s statement of defence, that is, the signature, is not jurisdictional as erroneously argued by the learned Senior Counsel. The issue did not arise from the appellants’ grounds of appeal or from the judgment of the trial Court.

The respondent having had victory at the lower Court if he wished to challenge the statement of defence of the appellant, ought to have filed a Respondent’s Notice, that the judgment of the trial Court be affirmed on some other grounds other than those relied upon by the trial Court. The respondent’s Notice was open to the respondent, who having had victory in the Court below but dissatisfied with certain aspects of the reasons for that victory now asks that the reasons be varied in whole or in part, in this case,

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in addition to the reasons given for the victory. See, NABISCO INC. v. ALLIED BISCUITS CO. LTD (1998) LPELR-1932 (SC) P. 14, PARAS. C-A and ARISONS TRADING & ENGINEERING CO. LTD. v. MILITARY GOVERNOR OF OGUN STATE & ORS. (2009) LPELR-554 (SC), PP. 60-62, PARAS. D-A. The authorities cited and relied upon by the learned senior counsel would be applicable where the appellant is a party in the action and the decision of the Court. In the present case, it is hypothetical the trial Court having struck out the appellant’s name. There was no cross-appeal against the order of striking out.

In sum, I hold that the appeal is meritorious, I allow same. The judgment of the trial Court against the 8th appellant is hereby set aside.

Parties to bear their respective costs.

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Other Citations: (2008)LCN/2780(CA)