Yongo & Ors V. Hanongon & Ors (2022)
LAWGLOBAL HUB Lead Judgment Report
ADAMU JAURO, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Makurdi Judicial Division wherein the Court dismissed the Appellants’ appeal and affirmed the judgment of the High Court of Benue State which dismissed the Appellants’ claims and granted the 1st Respondent’s counter-claim.
BRIEF STATEMENT OF FACTS
The Appellants by Writ of Summons and Statement of Claim instituted the action before the trial Court and sought the following reliefs in their Further Amended Statement of Claim:
a) A declaration that the Plaintiffs are entitled to all the pieces of land on which their various and several structures are built, situate immediately after the boundary between the 1st defendant and the plaintiffs.
b) A perpetual injunction restraining the 1st defendant by herself, servants, agents, heirs or privies from trespassing on the plaintiff’s lands.
c) An order that the 2nd defendant shall grant the plaintiff’s title documents to their various title-holds.
d) Damages for trespass into the plaintiff’s land by digging foundation into their land to enclose their several and various plots in the sum of N100,000.00 each = (N500,000.00).
e) Damages for destroying pepper, okro and green stands planted within the fence of the 2nd defendant in the sum of N25,000.00
f) Damages for detention for 24 hours in the police cell, harassing and intimidating the 1st and 3rd plaintiff in the sum of N25,000.00 each = (N50,000.00).
Total special damages at the sum of N575,000.00
General damages at the sum of N425,000.00
Total – N1,000,000.00.”
On her part, the 1st Respondent counter-claimed as follows:
a) “Five hundred thousand naira (N500,000.00) from the defendants jointly and severally for trespass into her property.
b) One hundred thousand naira (N100,000.00) special damages for the destruction of her foundation by the Appellants in August 2001 and at various dates.
c) An order of perpetual injunction restraining the defendants howsoever and by whomsoever from further acts of trespass on the square metres covered by certificate of occupancy No. 5814 dated 2/3/1985 with beacon Nos. MK1263, MK1264, MK1265 and MK1266.
d) The cost of prosecuting this action including Solicitor’s fees.”
The case of the Appellants at the trial Court was that they were each granted a piece of land by various grantors at various times; sequel to which they developed their lands without protest from anyone. That the 1st Respondent whose plot is adjacent theirs, appeared later in 2001 and started erecting a fence and in the process encroached on their land and destroyed their vegetable farm.
The case of the Respondents severally is that the 1st Respondent’s late father, Haanongon Ugba was granted a Statutory Right of Occupancy over the land in dispute consisting of an area of 4579.33 square metres in 1983 and he obtained a Certificate of Occupancy over same in 1985. That an application to assign the right of occupancy to the 1st Respondent was subsequently made by her father and same was granted in 1988. It was the Respondents’ case that following an expert valuation, compensation was prepared for payment to the Appellants who were on the land, but they unreasonably refused to accept same.
PRELIMINARY OBJECTION
The 1st Respondent’s counsel raised a preliminary objection in his brief of argument challenging the competence of the appeal on the following grounds:
a) “Appellants’ Writ of Summons and Statement of Claim leading to this appeal are incompetent in law.
b) Appellants’ grounds of appeal are mixed law and facts and this require leave of the Court below or this Court.
c) Appellants’ issues 1 and 2 been (sic) distilled from incompetent grounds of appeal are also incompetent.
d) Appellants raised an issue from an omnibus ground of appeal.
e) Appellants’ submission in its issue 1 do not arise from the decision either of the trial Court or the Court below.”
1ST RESPONDENT’S SUBMISSIONS ON THE PRELIMINARY OBJECTION
Learned counsel formulated two issues for the determination of the preliminary objection. They are as follows:
a) “Whether the learned trial Judge had jurisdiction to entertain the suit when the Writ of Summons and Statement of Claim dated and filed on 24/10/2001 were signed by Albert Yawe & Co in breach of the provisions of Sections 2(1) and 24 of the Legal Practitioners, 1975.
b) Whether the appeal as constituted is competent and valid in view of grounds 1, 2 and 3 which are grounds of facts or mixed law and facts.” Arguing the issue 1 of the preliminary objection, it was submitted that the Appellants’ Writ of Summons and Statement of Claim by which the suit before the trial Court was instituted were signed by “Ahua Albert Yawe & Co”, contrary to Sections 2(1) and 24 of the Legal Practitioners Act, 1975. Reference was made to OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 521.
It was further submitted that the purported incompetence of the originating processes goes to the root of the jurisdiction of the trial Court to entertain the suit and renders the entire proceedings as well as the judgments of the two Courts below a nullity. Reliance was placed on the cases of OSUNGWU V. ONYEIKIGBO (2005) 16 NWLR (PT. 950) 80, MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341, OGUNMOKUN V. MILITARY ADMINISTRATOR, OSUN STATE (1999) 2 NWLR (PT. 954) 261, SLB CONSORTIUM V. NNPC (2011) 4 SC 86.
On issue 2, learned counsel submitted that while by their notice of appeal, the Appellants’ grounds 1, 2 and 3 appear to be grounds of law, the particulars of those grounds show that they are grounds of facts or of mixed law and facts. That in order to determine the nature of a ground of appeal, it is to be considered together with its particulars. He relied on MOBIL PRODUCING NIG. UNLIMITED V. JOHNSON (2019) ALL FWLR (PT. 975) 811. It was therefore submitted that the failure of the Appellants to seek and obtain leave of Court before instituting this appeal is fatal to the appeal and same is deserving of a striking out. That issues 1 and 2 having been formulated from incompetent grounds are equally incompetent. The cases of NJEMANZE V. NJEMANZE (2013) ALL FWLR (PT. 672) 1658, B.A.S.F. NIG. LTD V. FAITH ENT. LTD (2014) 41 NSCQR 381, OSENI V. BAJULU (2009) 40 NSCQR 289, MOBIL PRODUCING NIG. UNLIMITED V. JOHNSON (supra) were cited in support.
Relying on NWODIKU V. OKANU (2010) 41 NSCQR 215, counsel submitted that issue 1 is incompetent having been formulated partly from ground 4, the omnibus ground of appeal as the omnibus ground cannot be used to raise an issue of law.
APPELLANT’S SUBMISSIONS ON THE PRELIMINARY OBJECTION
Learned counsel on behalf of the Appellant adopted the issues raised by 1st Respondent’s counsel for the determination of the preliminary objection.
On issue 1, counsel submitted that considering the state of the law, particularly the decision of this Court in OKAFOR V. NWEKE (supra), the judgment delivered by the learned trial Judge was a nullity.
Arguing issue 2, counsel submitted that issue 1, 2 and 3 considered together with their particulars are pure grounds of law as those grounds complain that the lower Court misapplied the law to admitted facts. He therefore submitted that no leave of Court was required to institute the appeal. The case of ONONUJU V. A.G. ANAMBRA (2005) SCNJ 31 was relied on.
Counsel finally urged the Court to dismiss the 1st Respondent’s preliminary objection.
The 2nd and 3rd Respondents did not address the preliminary objection in their joint brief of argument.
RESOLUTION OF THE PRELIMINARY OBJECTION
Having gone through the arguments of counsel in support of and against the objection raised by the 1st Respondent, it is obvious that the objection is two folds. The first leg of the objection is that the Writ of Summons and Statement of Claim by which the suit before the trial Court was instituted are incompetent by reason of the processes being signed in the name of a law firm. The second limb is that the appeal is incompetent as all the grounds of appeal contained in the Notice of Appeal raise grounds of facts or mixed law and facts and no leave of Court was sought before the appeal was filed.
I will start by addressing the objection relating to the competence or otherwise of the originating processes by which the suit at the trial Court was commenced. This is an essential issue since an originating process is the foundation of any suit before any Court. Thus, failure to commence proceedings upon a valid and competent originating process, Writ of Summons in the instant case, goes to the root of the action. In a nutshell, a challenge to an originating process is a challenge to the jurisdiction of the Court and the exercise of the Court’s adjudicatory power. See KENTE V. ISHAKU & ORS (2017) LPELR-4207 (SC), OKPE V. FAN MILK PLC & ANOR (2016) LPELR – 42562 (SC) AND BRAITHWAITE V. SKYE BANK PLC (2012) LPELR – 15532 (SC).
It is settled that jurisdiction is a threshold issue which is fundamental and crucial to adjudication. A Court cannot assume jurisdiction to adjudicate in a cause or matter unless its jurisdiction has been properly invoked. It is crucial because where a Court proceeds without jurisdiction to hear the case, the proceedings so embarked upon by the Court are a nullity ab initio however well conducted the proceedings and brilliantly decided the issues agitated therein are. See ONYEKWULUJE & ANOR V. ANIMASHAUN & ANOR (2019) LPELR – 46528 (SC), UTOO V. APC & ORS (2018) LPELR – 44352 (SC), MADUKOLU V. NKEMDILIM (1962) SCNLR 341.
Now, the 1st Respondent has argued that the originating processes were incompetent as they were signed in the name of a law firm. The relevant statutory provisions in this regard are Sections 2(1) and 24 of the Legal Practitioners Act. The provisions are reproduced hereunder as follows:
“2. (1) Subject to the provisions of this Act, a person shall be entitled to practise as a barrister and solicitor if, and only if, his name is on the roll.
- “Legal Practitioner” means a person entitled in accordance with the provisions of this Act to practise as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.”
There is no gainsaying that the law firm of “Ahua Albert Yawe & Co” is not a person whose name is on the roll of Legal Practitioners in the Supreme Court of Nigeria. It is equally not up for debate that the law firm of “Ahua Albert Yawe & Co” is not a person entitled to practice in accordance with the provisions of the Legal Practitioners Act. In other words, a law firm or a firm of legal practitioners is not within the contemplation of Sections 2(1) and 24 of the Legal Practitioners Act. Hence, not only is a law firm incapable of signing an originating process, a law firm falls short of the requirements of a person capable of signing any Court process whatsoever.
The implication of the foregoing is that such originating processes or Court processes are incompetent and they are certain to be struck out. In a situation where the processes afflicted with the malady of fundamental defect is an originating process, the whole proceedings conducted thereon, including appellate proceedings would amount to a nullity and a time-wasting exercise. See OKAFOR V. NWEKE (supra), AJIBODE & ORS V. GBADAMOSI & ORS (2021) LPELR – 53089 (SC), SALAMI V. MUSE (2019) LPELR-47038 (SC), S.L.B. CONSORTIUM LTD V. NNPC (2011) 9 NWLR (PT. 1252) 317, WHILZY IND. (NIG) LTD V. UBA PLC (2014) ALL FWLR (PT. 741) 1580, ALAWIYE V. OGUNSANYA (2014) ALL FWLR (PT. 668) 800, MIN. OF WORKS AND TRANSPORT ADAMAWA STATE V. YAKUBU (2013) 6 NWLR (PT. 1351) 481, F.B.N. PLC V. MAIWADA (2013) 5 NWLR (PT. 1348) 444, BRAITHWAITE V. SKYE BANK PLC (2013) 5 NWLR (PT. 1346) 1 AND YUSUF V. MOBIL OIL (NIG) PLC (2020) 3 NWLR (PT. 1710) 1. I say this because only a natural person can satisfy the requirements of the Act regarding becoming a legal practitioner such as attending the Nigerian Law School, being issued with a certificate of call to the bar and enrolment at the Supreme Court as provided in Sections 4 and 7 of the Legal Practitioners Act.
It is trite that a Court is competent to exercise its jurisdiction when:
(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication. See MADUKOLU & ORS V. NKEMDILIM (1962) LPELR – 24023 (SC); A.G. LAGOS STATE V. EKO HOTELS & ANOR (2017) LPELR – 43713 (SC); DURBAR HOTEL PLC V. ITYOUGH & ORS (2016) LPELR – 42560 (SC).
The suit before the trial Court having not been initiated by due process of law, deprived it of the jurisdictional competence to entertain the suit. The Appellant’s counsel himself admitted this much in his reply brief wherein he stated thus:
“2.3 We most humbly concede that based on the state of the law, particularly the decision of the honourable Court in OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 521, the judgment delivered by the learned trial Judge was a nullity as rightly submitted by counsel to the 1st Respondent.
2.4. We urge Your Lordships, to uphold the preliminary objection on this ground and strike out the judgment and indeed the entire proceedings of the trial Court.”
The above admission notwithstanding, counsel proceeded to argue issue 2 of the objection as set out earlier in this judgment. After admitting that the judgment of the trial Court and of course the whole proceedings of the two lower Courts were a nullity by reason of the aforementioned, of what use arc the submissions of counsel for the Appellants on issue 2 of the objection?
Flowing from the foregoing, I hold that the Writ of Summons and Statement of Claim by which the suit was instituted before the trial Court are incompetent. I also hold that the trial Court was consequently deprived of the jurisdictional competence to entertain the suit as instituted by the Appellants. The proceedings, inclusive of the judgments, of both the trial Court and the lower Court have no legs to stand on and therefore a nullity. The incompetence of the originating processes by which the suit before the trial Court was instituted and the futility of the proceedings before the two lower Courts obviate the need to consider the second limb of the 1st Respondent’s objection.
In the final analysis, this appeal is hereby struck out. Parties shall bear their respective costs.
SC.201/2017
