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CHIEF OLAIDE ONASANYA & ORS.
CHIEF KOLAWOLE SODARA & ORS.
IN THE COURT OF APPEAL OF NIGERIA
ON TUESDAY, THE 27TH DAY OF MARCH, 2012
BEFORE THEIR LORDSHIPS
ADZIRA GANA MSHELIA, JCA
MODUPE FASANMI, JCA
JOSEPH SHAGBAOR IKYEGH, JCA
For themselves and on behalf of Odubanjo Family of Ogbe Ode-Lemo
Mrs. T. Suraju – For Appellant
Mr. M.I. Rasheed – For Respondent
Ogun State: High Court
CONNECTED AREAS OF PRACTICE
JOSEPH SHAGBAOR IKYEGH, J.C.A., (Delivering the Leading Judgment):
The proceedings behind the appeal sprouted from the High Court of Justice of Ogun State sitting in Sagamu (the court below) in which it gave judgment dismissing the appellants’ land suit and granting the 1st – 4th respondents’ counter-claim of declaration of title of customary right of occupancy to the disputed strip of land situate at Opesoganran farmland, Ode-Lemo, in Ogun State together with a perpetual injunction restraining the appellants and their privies/servants/agents from committing future acts of trespass on the disputed land.
Tersely, the dispute between the parties in the court below was over the alleged alienation of tracts of land situate at Oko-Ode, Itun-Ogbe and Ode-Lemo by the 1st – 4th set of respondents said by the appellants to be jointly owned by the parties and which was allegedly alienated without the appellants’ consent. The court below heard the rival traditional histories of the parties and resolved at the end of the day that the appellants’ suit had no merit. It dismissed the appellants’ suit and granted the respondents’ counter-claim of title over the disputed piece of land.
Dissatisfied with the judgment of the court below, the appellants appealed to this Court in a notice of appeal with nine grounds of appeal which were canvassed under five issues for determination in their brief of argument dated and filed on 11.6.2010, by their learned counsel, Mr. Ologunde. For ease of appreciation, the issues for determination framed by the appellants read-
“i. Whether the learned trial judge was right to have relied on the original writ of Summons and Statement of Claim dated 11th May, 2006 instead of the Amended writ of Summons and Amended Statement of Claim dated 11th May, 2006 and duly filed on 6th June, 2008, by the Appellants pursuant to the leave of court to amend.
iii. Whether the learned trial judge was right to have suo motu raised the issue regarding the competence of the Appellants Statement of Claim without affording the Appellants the opportunity to be heard.
The appellants canvassed on the first issue tied to grounds 1 and 2 of the grounds of appeal that the amended statement of claim and the further amended reply to the statement of defence and defence to the counter-claim dated 11.5.2006 were indeed filed by the appellants on 6.6.2008 in compliance with the order of the court below and; the respondents’ learned counsel also acknowledged the existence of the court process, consequently the court below erred by overlooking the existence of the amended court process to hold that the appellants neglected or omitted to file the amended statement of claim to warrant the court below to resort to the original statement of claim made moribund or ineffectual by the amended statement of claim to dismiss the appellants’ suit contrary to the decision in the case of Uzoegwu v. Ifekandu (2001) FWLR (Pt.72) 1950 AT 1966; all the more so the court below erroneously relied on the invalid original statement of claim signed by “Wale Ajetunmobi and Co.” instead of the amended statement of claim signed by “Wale Ajetunmobi Esq.” in accordance with Order 26 Rule 5 of the High Court (Civil Procedure) Rules of Ogun State 1987 (Rules of the court below) read with the case of Okafor v. Nweke (2007) 3 FWLR (Pt.382) 4969 to hold that the original statement of claim was incompetent having been signed by “Wale Ajetunmobi and Co”, a person unknown to law when the original statement of claim was no longer in existence upon its replacement by the amended statement of claim.
The appellants tied grounds 6 and 9 of the grounds of appeal to the second issue for determination (supra) to canvas that the original statement of claim which was overtaken by the amended statement of claim was used by the court below to deprive itself of the jurisdiction to entertain the appellants’ suit and; with the determination of the court below that the suit was incompetent and robbed it of the jurisdiction to hear it, the court below lost the base to consider the appellants, suit on the merit, after it became functus officio and should have struck out the suit for want of jurisdiction vide University of Ilorin v. Adeniran (2007) 3 NWLR (Pt.381) 4712 at 4730, Nigerian Army v. Major Iyela (2009) 1 FWLR (Pt.456) 953, 976, Ojo v. Awe and Anor. (1962) WNLR 254 at 256, Forestry Research v. Enafoghe Gold (2007) 2 FWLR (Pt.366) 2403 at 2474.
The third issue was married to ground 3 of the grounds of appeal in which the appellants canvassed that the court below was wrong to raise and consider suo motu the issue of the incompetence of the original statement of claim without affording the parties the opportunity to address it on it upon which the court below brought the appellants’ suit to grief contrary to the cases of Dada v. Bankole (2008) 3 FWLR (Pt. 427) 3773 at 3797 and Araka v. Ejeagwu (2001) FWLR (Pt.36) 830 at 848.
Canvassing the third issue tied to ground 4 of the notice of appeal, the appellants’ brief referred to section 36(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, (1999 Constitution) together with the case of Oni v. Fayemi (2008) 2 FWLR (Pt. 422) 2899 at 2928 to stress that their constitutional right to fair hearing was infringed by the failure of the court below to hear them on the issue of the incompetence of the suit before dismissing it on the erroneous premise that it was based on defective statement of claim.
The appellants canvassed the fifth issue for determination married to grounds 7 and 10 of the grounds of appeal to the effect that after pronouncing the appellants’ suit incompetent based on the defective original statement of claim, the court below no longer had material from the appellants’ case to use in the evaluation of the counter-claim of the 1st – 4th respondents, therefore the counter-claim was decided without due consideration to the relevant pleadings of the appellants which breached the appellants’ right to present their own side of the case and led to miscarriage of justice to the appellants vide Aigbobahi & Ors. v. Aifuna and Ors. (2006) 2 FWLR (Pt. 309) 2024 at 2043 and Osuji v. Ereocha (2009) 3 FWLR (Pt. 487) 7269 at 7317 consequently the said decision was perverse and the appeal should be allowed.
The respondents’ brief of argument dated 20.1.11 and filed on 24.1.11, but deemed properly filed on the same 24.1.11, raised one issue for determination-
“Whether any miscarriage of justice has been occasioned by the consideration of the original statement of claim and other processes in line with the evidence of the parties instead of the Amended processes of the Appellants.”
The respondents’ arguments on the sole issue for determination referred to the original statement of claim with the defence to the counter-claim in pages 1 – 6, 27-30 of the record of appeal (the record) vis-a-vis the amended statement of claim in pages 43-55 of the record to contend that apart from the change from “WALE AJETUNMOBI AND CO” to “WALE AJETUNMOBI ESQ” both processes are the same to which the court below could have confined itself when it considered the case based on the processes placed before it along with the evidence led at the trial without embarking on a voyage of discovery vide Olayiwola v. F.R.N. (2008) 8 WRN 108 at 150-151; nor did the court below embark on technicality but dealt with the case on the issues joined by the parties in their pleadings and the evidence led before it vide Hussein v. Mohammed (2005) 28 WRN 51, more so the appellants did not point out that a different result woufd have been reached in the proceedings by the court below when it used the original statement of claim instead of the amended statement of claim to decide the appellants’ suit as to cause miscarriage of justice to the appellants vide Wilson v. Wilson (2009) ALL N.L.R. 191 and Obim v. Achuk (2005) 8 WRN 152 at 185, consequently the appellants cannot raise hypothetical and academic question not arising from the facts of the case for the court to resolve vide Habib Nig. Bank Ltd v. Gifts Unique Nig. Ltd. (2004) 36 WRN 136 at 156, therefore the appeal should be dismissed.
The issues for determination formulated by the appellants are, in my view, encompassing and cover the respondents’ single issue for determination. I follow the appellants’ issues for determination in the discourse.
In the course of the proceedings in the court below, the appellants were granted the leave of the court below on 6.6.2008 to amend their statement of claim vide the opening portion of the judgment of the court below in page 88 of the record. The amended statement of claim was filed on 6.6.2008 by the appellants vide pages SR1 – SR5 of the supplementary record evidencing the filing of the amended statement of claim by the appellants. The court below on its own and without affording the parties the opportunity to be heard fell back on the original statement of claim in pages 2-6 of the record to decide the case against the appellants.
The court below took the issue of the incompetence of the original statement of claim suo-motu. If the court below had allowed arguments on it, it would have realized that the amended statement of claim was actually filed and was in existence which would have saved the court below from the error it had fallen into of considering the appellants’ case on the void statement of claim to arrive at the fatal conclusion in page 91 of the record that –
“In effect evidence of the plaintiffs’ witnesses adduced upon the statement of claim in their case which I had earlier held to be incompetent and void go to no issue. I am therefore left with the case of the Defendant and counter-claimants in this case”
The complaint of the appellants that the court below denied them the right to fair hearing by suo motu taking and deciding the case on the original statement of claim instead of the amended statement of claim is well taken and is hereby upheld See Olusanya v. Olusanya (1983) 1 SCNLR 138 or (1983) NSCC 97 at 102 per Uwais, J.S.C., (later C.J.N.) thus –
“….. The court has said on a number of occasions that although an Appeal Court (any court) is entitled, in its discretion, to take points suo motu if it sees fit to do so, yet that discretion must be exercised sparingly and in exceptional circumstances only, where the points are so taken the parties must be given the opportunity to address the Appeal court (any court) before decision on the points made by the Appeal Court – See Kuti & Anor. v. Jibowu & Anor. (1971) 1 ALL N.L.R. (Pt. 11) 180 at 192; Salawu Ajao v. Karimu Ashiru & Ors (1973) 11 S.C. (Reprint) 17; (1973) 1 ALL NLR (Pt.11) 51 at 63; Atanda & Anor. v. Lakanmi (1974) 3 S.C. (Reprint) 80; (1974) 1 ALL NLR (Pt.1) 168; and Kuti v. Balogun (1978) 1 LRN 353 at 357.”
See also Fombo v. Rivers State Housing and Property Development Authority (2005) 5 SCNJ 213, Elugbe v. Emimigbe & Ors. (2004) 11 – 12 SC 60, Okorodudu v. Okoromadu (1977) 3 S.C. 21, Odiase & Ors. v. Agho & Ors. (1972) 1 ALL N.L.R. (Pt.1) 170, Adeosun v. Babalola (1972) 1 ALL N.L.R. (Pt.2) 120 at 126, Araka v. Ejeagwu (2001) FWLR (Pt.36) 830 at 848, Ogundoyin & Ors. v. Adeyemi (2001) 7 NSCQR 378 – 379, Abass v. Solomon (2001) 7 SCNJ 546 at 565 and Alli v. Alesinloye (2000) SCNJ 264 at 269.
It is trite that the effect of the amendment of the statement of claim ante-dated it by the amended statement of claim replacing the original statement of claim – See Oguma Associated Companies (Nig.) Ltd. v. I.B.W.A. Ltd. (1988) 1 NWLR (Pt. 73) 658; Sneade v. Wotherton Barytes and Lead Mining Company Ltd. (1904) 1 K.B. 295 at 297 –
“Upon that amendment being allowed, the writ as amended becomes the origin of the action, and the claim thereon indorsed;” and Madam Safuratu Salami and Ors. v. Sunmonu Oke (1987) 4 NWLR (Pt.63) 1 at 9 thus:-
“Once an amendment to a pleading is allowed by the court, the amendment relates to the original pleading which must be regarded as having been disregarded …”
See also Rotimi & Ors v. McGregor (1974) 11 N.S.C.C. 133 at 152 following the English case of Warner v. Sampson & Anor (1959) 1 Q.B. 297 at 321.
In my respectful view, a discarded original statement of claim cannot be used to determine a case – See by analogy Salami v. Oke (supra) at 17 per Oputa, J.S.C., (as he was) thus –
“There seems to be nothing fundamentally wrong with a trial Judge merely referring to an original statement of Defence when there exists an Amended Statement of Defence. But there is everything wrong with the trial Judge relying on an original statement of Defence to arrive at the live issues in a case where there exists an Amended Statement of Defence. Once there is an amendment, the original pleading will no longer define the issues to be tried.” (My emphasis).
See further Anambra State Environmental Sanitation Authority (A.S.E.S.A.) & Anor v. Raymond Ekwenem (2009) 13 NWLR (Pt.1158) 460 at 435-436 as follows –
“It is trite that in the pleadings of the plaintiff before commencement of trial, a further amended statement of claim supercedes an amended statement of claim. This poses the question whether pleading later amended ceases to exist for the purpose of the proceedings. The Supreme Court aptly considered this intricate question in the case of Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) pg. 170 at 185 – 187 paragraphs H – C where it concluded that:
“Once pleadings are duly amended by the order of court, what stood before amendment is no longer material before the court and no longer defines the issues to be tried before the court. This, however, is as far as that proposition of the law goes. It does not and has not laid down any such principle that an original pleading which has been duly amended by an order of court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings. The clear pleading which has been duly amended is no longer material before the court in the sense that it no longer determines or defines the rive issues to be tried before the court. Not that it no longer exists. It does certainly exist and is before the court. It is however totally immaterial in the determination of the issues to be tried in the proceedings. Thus, it cannot be considered as the basis of one’s case in any action. Nor may a court of law rely on any such original pleading which has been duly amended as the basis for its judgment in the suit. The issues to be tried will depend on the state of final or amended pleadings. See Salami v. Oke (1987) 4 NWLR (Pt. 63) 1 at 9 and 12 and Agbaisi and Others v. Ebikorefe and Others (1997) 4 NWLR (Pt. 502) 630 at 647-649.” (My emphasis).
In short an amended process does not become otiose; it still forms part of the record before the court in any proceeding. Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) pg. 488 ratio 15 at page 536 paras C-D.”
The original statement of claim dated and filed on 11.5.2006 upon which the court below based its judgment dismissing the appellants’ case was signed by “WALE AJETUNMOBI and Co.” vide page 6 of the record. The judgment of the court below was pronounced on 27.1.2009 vide page 88 of the record, while the amended statement of claim was filed on 6.6.2008 vide page SR 5 of the supplementary record. The court below, therefore, had no basis to use the original statement of claim to ground its decision in the case brought by the appellants. What the court below should have used was the amended statement of claim filed on 6.6.2008, more than six months before it gave judgment in the suit on 27.1.2009.The respondents argued that the difference between the original statement of claim and the amended statement of claim was the signatory to the two statements of claim with the original statement of claim bearing the signature of “WALE AJETUNMOBI and Co” and the amended statement of claim having the signature of “Wale Ajetunmobi Esq” therefore there was no miscarriage of justice in the case, I am not persuaded by the argument. There is a world of difference between “WALE AJETUNMOBI and Co” and “Wale Ajetunmobi Esq.” The latter presupposes the existence of a living person known to law and capable of signing court processes, while the former contemplates a non-existent person unknown to law and incapable of signing court processes. So both the original statement of claim and the amended statement of claim cannot be said to be on the same pedestal.
The original statement of claim upon which the court below decided the appellants’ suit was, in my view, an incompetent document having been shown to be signed by ”WALE AJETUNMOBI and Co.” an unknown person or entity incapable of signing court processes – See Okafor & Ors. v. Nweke & Ors. (2007) 10 NWLR (Pt.1043) 521 at 530 – 532 thus-
“There is no doubt whatsoever that the motion paper giving motion rise to the objection as well as the proposed notice of cross Appeal and appellants, brief in support of the said motion were all signed: J.H.C. Okolo SAN & Co. Learned Senior Counsel for the appellants does not dispute this court stated that since there is a signature on top of J.H.C. OKOLO SAN & CO it is necessary to call evidence to establish the identity of the person who signed the documents for which counsel relied on Izugu v. Emuwa supra and Banjo v. Eternal Sacred Orders of Cherubim & Seraphim, also supra;
However section 2(1) of the Legal Practitioners Act, cap 207 of the Laws of the Federation of Nigeria 1990 provides thus:-
“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 the roll.”
From the above provision, it is clear that the person who is entitled to practice as a legal practitioner must have had his name on the roll. It does not say that his signature must be on the roll but his name.
Section 24 of the Legal Practitioners Act defines a “legal practitioner” to be:
“a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceeding.”
The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner he must have his name in the roll otherwise he cannot engage in any form of legal practice in Nigeria. The question that follows is whether J.H.C. OKOLO SAN & CO is a legal practitioner recognized by the law?
From the submission of both counsel, it is very clear that the answer to that question is in the negative. In other words both senior counsel agree that J.H.C. OKOLO SAN & CO is not a practitioner and therefore cannot practice as such by say, filing processes in the courts of this country. It is in recognition of this fact that accounts for the argument of learned senior Advocate for the applicants that to determine the actual person who signed the processes evidence would have to be adduced which would necessarily establish the fact that the signature on top of the inscription J.H.C. Okolo SAN & Co. actually belongs to J.H.C. Okolo who is a legal practitioner in the roll. I had earlier stated that the law does not say that what should be in the roll should be the signature of the legal practitioner but his name. That apart it is very clear that by looking at the documents, the signature which learned senior advocate claims to be his really belongs to J.H.C, Okolo SAN & Co. or was appended on its behalf since it was signed on top of that name. Since both counsel agree that J.H.C. Okolo SAN & co. is not a legal practitioner recognized by the law, it follows that the said J.H.C. Okolo SAN & co. cannot legally sign and/or file any process in the courts and as such the motion on notice filed on 19th, December 2005, notice of cross appeal and applicants brief of argument in support of the said motion all signed and issued by the firm known and called J.H.C. Okolo SAN & Co. are incompetent in law particularly as the said firm of J.H.C. Okolo SAN & Co. is not a registered legal practitioner.
In arriving at the above conclusion, which is very obvious having regard to the law, I have taken into consideration the issue of substantial justice which is balanced on the other side of the scale of justice with the need to arrest the current embarrassing trend in legal practice where authentication or franking of legal documents, particularly processes for filing in the courts have not been receiving the serious attention they deserve from some legal practitioners. Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country. The law exists as a guide for actions needed for the practice of the law, not to be twisted and turned to serve whatever purpose, legitimate or otherwise which can only but result in embarrassing the profession if encouraged.”
See also, Ogundele & Anor. v. Agiri & Anr. (2009) 12 S.C. 135 at 165, as follows-
“Even recently, in the case of Okafor & Ors v. Nweke & Ors. (2007) 3 S.C. (Pt.11) 55; (2007) 3 SCNJ 185; (2007) ALL FWLR (Pt.368) 1016, this Court – Onnoghen, JSC., dealt with this issue or fact. A partnership or firm, unless duly registered as such, with respect, is not a Legal Practitioner recognized by law or a person entitled to practice as a barrister and solicitor. See also sections 2(1) and 24 of the Legal Practitioner Act, Cap. 297 LFN. See the cases of The Registered Trustees of Apostolic Church Lagos Archdiocese v. Rahman Akindele (1967) NMLR 263 at 265; First Bank of Nig. Plc. & Rankassa Enterprises Ltd. v. Alhaji Salmanu Maidawa dated 27th March, 2002, at pages 13 & 14 – per Mangaji JCA; (of blessed memory) (unreported); my concurring judgments/contributions in suit no. CA/J/234/2000 – Major-General Musa Bamaiyi (rtd) v. Danladi A.S. Garlia dated 9th December, 2004 (unreported) and CA/J/241/2001 – Dominic Nwani v. Bakari & Anor. also dated 9th December, 2004 (unreported). If learned counsel who appear before this Court, persist in this practice of signing any process of this Court as & co. without evidence of being duly registered as such, it may be obliged to disregard or discountenance, such process including Briefs. Such signing in my respectful but firm view, is NOT an irregularity…”
Further, in the fairly recent case of Oketade v. Adewunmi (2010) 3 S.C. 140 at 146 – 147, a statement of claim as in this case signed by “Olujimi and Akeredolu” was held by the Supreme Court to be an incompetent and void document. See again S.L.B. Consortium Ltd v. NNPC (2011) 9 NWLR (Pt.1252) 317.
The court below was therefore in error in relying on the discarded and incompetent original statement of claim to determine the suit of the appellants against them.
The defence to the counter-claim dated 4.12-2007 and filed on 14.12.2007 vide pages 39 -42 of the record relied on the original statement of claim to fight the counter-claim. For quick reference it reads –
“The plaintiffs rely on both the statement of claim and the amended reply to the statement of Defence in the suit and deny all the averments contained in the statement of Defence and counter-claim and join issue with the Defendants on each and everyone of them including the claims and shall contend at the trial of this action that the alleged counter-claim before the court is a non-starter, frivolous, vexatious, highly speculative and ought to be dismissed with substantial cost.
The plaintiffs aver that the defendants are not entitled to the claims put before the court by them as same is an exercise in gold digging”
In deciding the counter-claim the court below had no alternative but to rely on the discarded original statement of claim which was void in the eyes of the law. Moreover, the defence to the counter-claim was signed by “WALE AJETUNMOBI and co” vide page 42 of the record, the same vice or virus that afflicted the original statement of claim and rendered it incompetent. So an adjudication based on void or incompetent court processes foundational to an action as in this case was improper. Therefore the counter-claim which is interwoven with the original statement of claim, which original statement of claim was adopted by the appellants in their defence to the counter-claim, could not have been sound basis for adjudication of the counter-claim by the court below.
The fasciculus of serious irregularities in the conduct of the case by the court below appear sufficient, in my respectful view, to warrant allowing the appeal and ordering a retrial of the suit and counter-claim in the interest of justice – See Ezeoke & Ors. v. Nwagbo & Anor. (1988) 1 NWLR (Pt. 72) 616 at 629 inter-alia thus –
“….., Of course it cannot be doubted that such an order (retrial) can be properly made upon proper ground, such as when a judge misdirects himself as to the nature of a party’s case, or upon wrongful admission or rejection of material evidence, or a party has been taken by surprise; or on grounds of misbehavior of the judge…” (My emphasis)
Consequently, I see merit in the appeal. It is hereby allowed. The judgment of the court below (Olusanya, J.) is set aside and a new trial of the suit on the amended statement of claim and counter-claim ordered before another learned Judge of the High Court of Justice of Ogun State to be designated by the learned Chief Judge of Ogun State. No order as to costs.
ADZIRA GANA MTSHLIA, J.C.A:
I agree with, my learned brother IKYEGH, J.C.A., whose judgment in draft I had been opportune to read that there is merit in this appeal. The signature of “WALE AJETUNMOBI & CO.” on the original statement of claim robs the process of competence ab initio as the said firm is not a registered legal practitioner enrolled to practice as a barrister and solicitor. It is trite that a firm of solicitors is not competent to sign a court process. See OKAFOR and ORS Vs. NWEKE and 4 Ors (2007) 10 NWLR (Pt. 1043) 521 and SLB CONSORTTUM LTD v NNPC (2011) 9 NWLR (Pt. 1252) 317.The court below was therefore in error in relying on the discarded and incompetent original statement of claim to determine the suit of the appellants. I also allow the appeal and endorse all the consequential orders made in the lead judgment, inclusive of costs.
MODUPE FASANMI, J.C.A.:
I had the privilege of reading in draft the judgment just delivered by my learned brother Ikyegh J.C.A.
He has adequately dealt with all the issues involved. I agree with his reasoning and conclusion that the appeal be allowed. I too allow the appeal and abide by the consequential order contained therein.