CORAM

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Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Chioma Egondu Nwosu-Iheme Justice of the Supreme Court of Nigeria

Stephen Jonah Adah Justice of the Supreme Court of Nigeria

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PARTIES

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1. MRS. OLUBUNMI ADENIJI

2. MRS. KEHINDE ALAKE

APPELLANTS 

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1. ALHAJI BAMANGA TUKUR

2. DADDO MARITIME AGENCIES LTD

3. DADDO PROPERTY DEV. CO LTD

4. BIMBO MORGAN

(Calling herself “MRS” BIMBO OKUYIGA” Joined by Order of Court)

RESPONDENTS 

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AREA(S) OF LAW

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CIVIL PROCEDURE, PROPERTY LAW, LAND LAW, TRESPASS, EVIDENCE, PRACTICE AND PROCEDURE, APPEAL, JURISDICTION, PLEADINGS, DOCUMENT AUTHENTICATION, EQUITABLE INTEREST, AGENCY LAW

 

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SUMMARY OF FACTS

This case revolves around a dispute over the ownership and possession of a property known as Plot 1270 or No. 5, Eletu Ogabi Street, Victoria Island, Lagos. The original claimant, Olasumbo Oluranti Okuyiga, instituted a suit against the 1st and 2nd defendants (now respondents) claiming damages for trespass, and seeking injunctive reliefs to prevent interference with his possession of the said property. Upon the death of the original claimant, the trial Court ordered the substitution of his daughters, Mrs. Olubunmi Adeniji and Mrs. Kehinde Alake (the appellants). The 3rd and 4th respondents were later joined as defendants by an order of the trial Court.

The appellants’ case was that their deceased father, Mr. Olasumbo O. Okuyiga, was the owner of the property in dispute by virtue of a lease from the Lagos State Government dated 15th May, 1974 (Exhibit OP2), which formed the basis of his registration as proprietor in the Register of Titles at the Lagos Land Registry. They claimed he continued to be the registered proprietor as at the filing of the suit.

The respondents, on the other hand, claimed that the property in dispute was sold to the 3rd defendant through the 4th defendant/respondent, who collected the purchase price for a daughter of her marriage with the deceased original claimant.

The trial Court dismissed the appellants’ claims in their entirety. The appellants appealed to the Court of Appeal, which allowed the appeal in part by holding that both the Original and Amended Statement of Defence/Counter-claim were incompetent and void ab initio. However, the Court of Appeal still dismissed the appellants’ appeal on the claims for trespass and injunction. The appellants, dissatisfied with the judgment, appealed to the Supreme Court.

 

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HELD

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1. The appeal was allowed, and the reliefs sought by the appellants were granted.

2. The cross-appeal was dismissed as having become academic, as the issues raised in it had been addressed in the main appeal.

3. The Court found that the Counter-claim of the respondents was incompetent and struck it out, being an originating process not signed by a legal practitioner.

4. The Court held that the Statement of Defence could be considered as the appellants had waived their right to object to its procedural irregularity.

5. The Court found that since there was a failure of both contenders to establish legitimate Power of Attorney to be in possession of the property, the original owner (represented by the appellants) had better right to possession.

6. The Court determined that the conclusion of the lower courts that the 4th respondent had better possession and could confer equitable rights on the 1st to 3rd respondents was without justifiable legal basis and was perverse.

7. Parties were ordered to bear their respective costs.

 

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ISSUES

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1. Whether having held that the respondents’ pleadings (Statement of Defence and counter-claim) were void, the appellants were not entitled to judgment upon their case being uncontested?

2. Whether upon the pleadings and legal evidence before the Court, the claimants were entitled to judgment in any event?

 

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RATIONES DECIDENDI

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FUNCTION OF PLEADINGS – PURPOSE AND IMPORTANCE OF PLEADINGS IN CIVIL PROCEEDINGS

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The best method of placing issues of the parties before the Court is by way of pleadings. The plaintiff normally starts. It is for the plaintiff to plead sufficient material facts to afford the defendant the opportunity to know the case he has to face. It is then up to the defendant to admit or traverse those facts. Primarily, the function of pleading is to ascertain with as much certainty as possible the various matters actually in dispute between the parties. A pleading therefore, must be sufficient, comprehensive, accurate and non-evasive. It must be capable of dealing with the substantive issues in dispute between the parties. – Per STEPHEN JONAH ADAH, JSC

 

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WAIVER OF PROCEDURAL IRREGULARITIES – DISTINCTION BETWEEN SUBSTANTIVE AND PROCEDURAL JURISDICTION

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There are two types of jurisdiction. 1. Jurisdiction as a matter of procedural law. 2. Jurisdiction as a matter of substantive law. A Litigant may waive the former. Again, in Appeal No: SC.175/2005 Heritage Bank Ltd v. Bentworth Finance (Nigeria) Ltd decided by this Court on 23 February, 2018, Eko JSC, explained the distinction between substantive jurisdiction and procedural jurisdiction. The law is very well settled that counsel may waive a defect in procedure which is procedural law. – Per STEPHEN JONAH ADAH, JSC

 

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COMPETENCE OF COURT PROCESSES – IMPORTANCE OF PROPER SIGNATURE BY LEGAL PRACTITIONERS

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A Court process is not just an ordinary document or a parchment for note writing. Okpe v. Fanmilk Plc & Anor (2017) 2 NWLR (Pt.1549) 282; Akinbinu v. Oseni & Anor (1992) LPELR -341 (SC). It is a document formally filed in Court to convey one’s position in a litigation, or used to enforce a legal right or to resolve disputes in a Court of law. The pleadings and counter-claim filed by the appellants being Court processes must comply with our procedural protocol of it being taken out and signed by the respondent in person or by a counsel of his choice. – Per STEPHEN JONAH ADAH, JSC

 

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NATURE OF COUNTER-CLAIM – WHETHER A COUNTER-CLAIM IS AN ORIGINATING PROCESS

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The process in question here is that Statement of Defence and counter-claim filed by the respondents in this appeal at the trial Court. This process is double barreled. It comprised of a statement of defence which is ordinarily not an originating process, a separate, independent and distinct action with all incidents of an originating process. See the cases of Jeric Nigeria Ltd. v. Union Bank of Nigeria Plc (2000) LPELR – 1607 (SC); Anwoyi & Ors. v. Shodeke & Ors. (2006) LPELR -502 (SC); Oroja & Ors. v. Adeniyi & Ors. (2017) 6 NWLR (Pt.1560) 138 and Ogli Oko Memorial Farms Ltd & Anor v. Nigeria Agricultural & Co-operative Bank Ltd & Anor (2008) 12 NWLR (Pt.1098) 412. – Per STEPHEN JONAH ADAH, JSC

 

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COMPETENCE OF COUNTER-CLAIM – EFFECT OF SIGNING BY A LAW FIRM INSTEAD OF A LEGAL PRACTITIONER

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The counter-claim of the respondents filed by Olawoyin and Olawoyin, a law firm is accordingly, dead. By this finding of the lower Court, the claim of the appellant at the trial Court stood alone. There was no valid and competent counter-claim of the respondents. This, notwithstanding, it is still the responsibility of the claimants to prove their claim on the balance of probabilities. – Per STEPHEN JONAH ADAH, JSC

 

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BURDEN OF PROOF – PLAINTIFF’S DUTY TO PROVE CLAIM ON PREPONDERANCE OF EVIDENCE

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In fact, our law is settled that in a claim of this nature, the onus is on the plaintiff to establish his own claim upon the strength of his own case and not upon the weakness of the case of the defendant. The plaintiff must duly satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration he sought. See Momoh & Ors. v. Umoru & Ors. (2011) 15 NWLR (Pt.1270) 217.– Per STEPHEN JONAH ADAH, JSC

 

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POWER OF ATTORNEY – EFFECT OF NON-REGISTRATION OF POWER OF ATTORNEY

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The two Courts below found that the two Power of Attorney possessed by the rival parties were unregistered and so could not be used as instruments conferring on any of the parties, the ownership of the property in contest. This finding of the Courts was not challenged by any of the parties. It follows therefore, that the ownership of the land resides in the deceased Okuyiga, who is listed in the Register of Title as the owner of the property in issue. – Per STEPHEN JONAH ADAH, JSC

 

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POSSESSION IN TRESPASS – REQUIREMENT TO PROVE FACTUAL POSSESSION AND UNAUTHORIZED INTERFERENCE

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It is basically correct from the lower Court’s decision that there is a misconception of the claim of the appellants. The original owner of the property in question is from the record before the Court, the very person who kickstarted this action that was taken over by the present appellants who substituted him. Since the original title holder who was alleged to authorize the Power of Attorney the 4th respondent claimed to authorize her to sell the property came to Court to challenge her, the onus is more on the 4th respondent to justify her possession of the property and her authority to sell the property. – Per STEPHEN JONAH ADAH, JSC

 

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PERVERSE JUDGMENT – WHEN AN APPELLATE COURT CAN OVERTURN FINDINGS OF FACT

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Their conclusion on the issue that the said 4th respondent had better possession and could confer equitable rights on the 1st to 3rd respondents is without any justifiable legal basis and so perverse. That conclusion in the circumstance, cannot stand. It is perverse. It is my conclusion that since there is a failure of the contenders to establish that they had the legitimate Power of Attorney to be in possession of the property, they cannot claim to have any better right of possession than the original owner of the property who are the claimants. – Per STEPHEN JONAH ADAH, JSC

 

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ACADEMIC APPEAL – WHEN AN APPEAL BECOMES ACADEMIC

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The jurisprudential concept of academic issue was exhaustively espoused and duly laid to rest in PLATEAU STATE VS. AG OF THE FEDERATION (2006) 3NWLR (pt. 967) 346, where this Court was recorded to have aptly held that a suit (or appeal) is academic where it’s merely theoretical, of no practical utilitarian benefit to the plaintiff, even if judgment is given in favour thereof. Per Niki Tobi, JSC @ 419. – Per IBRAHIM MOHAMMED MUSA SAULAWA, JSC

 

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DEFINITION OF ACADEMIC QUESTION – CHARACTERISTICS OF ACADEMIC ISSUES IN LITIGATION

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An academic issue or question does not require answer or adjudication by a Court of law because it is not necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not ensure any right or benefit on the successful party. – Per IBRAHIM MOHAMMED MUSA SAULAWA, JSC (quoting Niki Tobi, JSC)

 

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FATALITY OF DOCUMENTS SIGNED BY LAW FIRMS – IRREMEDIABLE NATURE OF IMPROPERLY SIGNED COURT PROCESSES

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It is without disputation that the amended statement of defence and counter-claim filed by the Respondents was signed by a law firm, rather than a legal practitioner, which invariably affects the competence of their originating process. The fatality and incompetence of a document or Court process signed by a law firm, other than a legal practitioner, remains irremediable, irredeemable, unwaivable and un-resurrectable. It is beating a dead horse! Per UWANI MUSA ABBA AJI, JSC

 

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LEGAL PRACTITIONER SIGNATURE REQUIREMENT – EFFECT OF FAILURE TO COMPLY WITH LEGAL PRACTITIONERS ACT

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Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the Law (i.e. the Legal Practitioners Act). Any Court process not signed by a legal practitioner representing a party as specifically stated and in the specified manner, is not a Court process signed in accordance with or recognized by law, since it will not be a process signed by an identifiable person who could be attributed the competence to sign same.– Per UWANI MUSA ABBA AJI, JSC (quoting GARBA, JSC, in SKYPOWER EXPRESS AIRWAYS LTD V. UBA, PLC & ANOR)

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Legal Practitioners Act Cap 2007 LFN 1990

3. Land Use Act

4. Registration of Titles Law Cap R4, Laws of Lagos State 2003

5. Evidence Act 2011

 

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