Oyeniyi S. Raheem & Anor V Adaranijo Taofeek Abiodun & OrsNovember 22, 2015
Sherifat O. Hassan & Anor V. Agunsoye Oluwarotimi Ojo & 2 OrsNovember 22, 2015
Areas of Law:
The Appellants instituted a suit against the Respondent in the High Court claiming damages for losses suffered by them due to the collapse of the Respondent’s building on their property. The Respondent filed a preliminary objection to the suit on the grounds that the Appellants are members of the family of Layeni descendants and that the family through its trustees had taken out another writ against the Respondent claiming damages for losses suffered as a result of the collapse of the same building on their property. The trial court upheld the preliminary objection hence an appeal to this court at the instance of the Appellant.
- Whether the lower court had jurisdiction to entertain the Notice of Preliminary Objection and the written addresses filed by the Respondent upon which it dismissed the appellants’ case?
- Whether the lower court did not act in excess of its jurisdiction in relying on processes in Suit No. LD/1290/2007 Jide Layeni & ors v Bank of Industry to rule that this suit constitutes an abuse of court process?
- Whether having regard to the circumstances and the pre – conditions for establishing abuse of Court process, the lower court did not wrongly hold that this suit constitutes an abuse of court process?
LEGAL PROCESSES – IMPORTANCE IN SIGNING LEGAL PROCESSES
“Indeed the name of a signatory is important to make complete and valid the identity of a signature. Furthermore, the requirement of the Legal Practitioners Act is that the name of any person signing processes be on the roll of those qualified to practice in Nigeria. This point was succinctly made by HON. JUSTICE MSHELIA, JCA in the case of Dr. Bolaji Akinsanya &Anor V Federal Mortgage Finance Limited (2010) LPELR-3687 (CA) as follows:
“The importance of stating the name of the signatory cannot be over- emphasized. Signature is only identifiable by the name of the signatory. Court processes must therefore be signed by a named legal practitioner.”
Therefore, an identifiable name and signature of a legal practitioner signing a process is important because that is what invokes jurisdiction of the court. PER Y. B. NIMPAR, J.C.A
“It is settled that jurisdiction is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio, however well conducted and brilliantly decided that might be since a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Jurisdiction is therefore considered as nerve centre of adjudication; the blood that give life to the survival of an action in a court of law in the very same way that blood gives life to the human being in particular and the animal race in general.” PER Y. B. NIMPAR, J.C.A
“A signature was defined in the case of Akinsanya V Federal Mortgage Bank (SUPRA) as follows:
“The word signature is defined in Black’s Law Dictionary 7th Edition at page 1387 thus: –
“A Person’s name or mark written by the person or at the person’s direction. Any name, mark or writing used with the intension of authenticating a document.”- PER Y. B. NIMPAR, J.C.AAFFIDAVIT EVIDENCE –STATUS OF UNCHALLENGED AFFIDAVIT EVIDENCE
“The legal position of such an affidavit is that the facts deposed therein are deemed admitted and there is no need to prove the facts deposed therein, see The Regd Trust Of National Ass. Of Community Health Practitioners Of Nigeria & Ors V Medical And Health Workers Union Of Nigeria &Ors (2008) 1 S.C (Pt. III) 1 where the Supreme Court held thus:
“The position of the law is that affidavit evidence that is neither challenged nor debunked remain good and reliable evidence which ought to be relied upon by a court.”
See also the following: The Honda Place Ltd V Globe Motors Ltd (2005) 14 NWLR (Pt 945) 2273; Ajomale V Yaduat (No.1) (1991) 5 NWLR (Pt 191) 266 and Alagbe V Abimbola (1978) 2 S.C 39 at 40”. PER Y. B. NIMPAR, J.C.A
“When suits are instituted for and on behalf of a family or in a representative action, not all the names of those who constitute that family are usually named. See Mozie V Mbamalu (2006) 15 NWLR (Pt. 1003) 466 where the court held as follows:
“It is not my understanding of the law that all the members of the Omerone family must be specifically named as parties. That will be enumerating or parading a village or community of names, which is most unnecessary. That type of enumeration can only be useful in a census exercise, not in a court of law. So much stationary and time will be wasted and for no good reason.” PER Y. B. NIMPAR, J.C.A
“Preconditions that must exist before an abuse of court process can be said to have occurred were settled by the Supreme Court in the case of Umeh V Iwu (2008) 8 NWLR (Pt. 1089) 225 thus:
“It is settled that for there to be an abuse of court process, there must exist a multiplicity of suits between the same parties on the same subject matter and on the same issues which preconditions are mutually inclusive as they are conjunctive.”
It is clear from above therefore that 3 conditions must exist namely:
(i) Same parties
(ii) Same subject matter
(iii) Same issues”. PER Y. B. NIMPAR, J.C.A
“It is indeed vexatious, irritating and cannot be allowed to stand. See Ikini & Ors V Edjorode (2001) 12 S.C (Pt II) 94; Okafor V A.G Anambra State (1991) 6 NWLR (Pt 200) 659 at 681”. PER Y. B. NIMPAR, J.C.AStatutes Referred To:
Legal Practitioners Act, CAP L11, LFN 2004