AMINU RAJI (FOR HIMSELF AND ON BEHALF OF OTHER GREAT GRAND-CHILDREN OF MADAM OYASOLA AYANLOWO OF OLOYA COMPOUND

CORAM

Sotonye Denton-West Justice, Court of Appeal

Mojeed Adekunle Owoade Justice , Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice, Court of Appeal

PARTIES

AMINU RAJI(FOR HIMSELF AND ON BEHALF OF OTHER GREAT GRAND-CHILDREN OF MADAM OYASOLA AYANLOWO OF OLOYA COMPOUND, OSOGBO)? APPELLANTS

1. JIMOH OLADIMEJI

2. OSENI AREMU(ON BEHALF OF AYANLOWO FAMILY OF OLOYA’S COMPOUND ISALE-OSUN, OSOGBO)

RESPONDENTS 

AREA(S) OF LAW

CONSTITUTIONAL LAW, LAND LAW, PROPERTY LAW, CUSTOMARY LAW, EVIDENCE, ESTOPPEL, CIVIL PROCEDURE, APPEAL, PRACTICE AND PROCEDURE, JURISDICTION

SUMMARY OF FACTS

This case revolves around competing claims over land at Oke-Osun, Osogbo. The Respondents (as Plaintiffs) claimed they were entitled to statutory right of occupancy over the disputed land, asserting that the Appellant was a customary tenant who refused to pay “Ishakole” (annual tributes) and was wrongfully claiming ownership. According to the Respondents, the vast land of Ayanlowo family at Ijetu and Oke-Osun (including the disputed land) was originally granted by Oba Lare, the first Ataoju of Osogbo, to his daughter Katisan, who then begat Ayanlowo. After Katisan’s death, the land was inherited by Ayanlowo, the ancestor of Ayanlowo family of Oloya’s compound.

The Respondents claimed that during the time of Ajayi (one of the heads of the Plaintiffs’ family), Onifade (the Appellant’s ancestor) approached them for land at Oke-Osun when he was being disturbed by flood at Gbodofon. They permitted Onifade to plant only seasonal crops, and Onifade and his descendants faithfully paid tributes (Ishakole) to the Respondents’ family.

The Appellant admitted the land was granted to their ancestor Onifade but presented a different traditional history. He claimed the Ayanlowos migrated to Osogbo around 1869 during an Osun festival and were settled at Oloya Compound by Ataoja Matanmi I. According to the Appellant, Oyasola (the only female member of the Ayanlowo group) married into Aroko compound and begat Onifade. When Onifade faced flooding on his farm, Oyasola requested land from her Ayanlowo family for her son. Ajayi, head of the Ayanlowo family and younger brother of Oyasola, carved out about 5 acres and made an absolute grant to Onifade through Oyasola.

The trial court held that the Respondents’ traditional evidence was properly pleaded and conclusive, corroborated by Exhibit B (a previous judgment). The court granted the Respondents’ claims for declaration of title and injunction but refused their claims that the defendants were customary tenants. The Appellant’s counterclaim was dismissed.

HELD

1. The appeal was allowed in part.

2. The Court of Appeal held that the Plaintiffs’/Respondents’ Writ of Summons was incompetent as it was signed by a law firm (“A. Ajibola & Co.” and “Yemi Ajibola & Co.”) rather than by an individual legal practitioner as required by Sections 2(1) and 24 of the Legal Practitioners Act.

3. The trial Court had no jurisdiction to entertain the Respondents’ claims due to the incompetent Writ of Summons, which was struck out.

4. The Court of Appeal upheld the dismissal of the Defendants’/Appellants’ Counter-Claim, finding that the Appellants were caught by the doctrine of estoppel by standing by, as they were aware of but did not join the previous litigation (Exhibit B) concerning the same land.

5. No order was made as to costs.

ISSUES

1. Whether the learned trial judge had jurisdiction to hear the Plaintiffs’ case on the face of the Writ of summons which was not signed by the Plaintiff or by a legal practitioner?

2. Whether the learned trial judge was right to have dismissed the Defendant’s/Appellant’s Counter-Claim?

RATIONES DECIDENDI

ORIGINATING PROCESS – CONDITION PRECEDENT TO EXERCISE OF JURISDICTION

“I agree with the Learned Counsel for the Appellant that the Plaintiffs writ of summons and Statement of Claim issued by and signed by A Ajibola & Co. did not come before the Court initiated by due process of law and upon fulfillment of a condition precedent to the exercise of jurisdiction. Truly, the learned trial judge had no jurisdiction to adjudicate upon the Plaintiffs writ of summons and statement of claim.” – Per MOJEED ADEKUNLE OWOADE, J.C.A.

INCOMPETENT PROCESSES – EFFECT OF SIGNING OF PROCESS BY A LAW FIRM

“In the instant case, I am inclined to follow the decisions of the apex Court in Okafor & Ors v. Nweke & Ors (supra) and Oketade v. Adewunmi & Ors (supra) to say that the Plaintiffs/Respondents writ of summons and statement of claim signed by a law firm are incompetent, null and void. Obviously, the learned trial Judge had no jurisdiction to adjudicate on these incompetent processes.” – Per MOJEED ADEKUNLE OWOADE, J.C.A.

HIERARCHY OF LAWS – RELATIONSHIP BETWEEN RULES OF COURT AND THE LEGAL PRACTITIONERS ACT

“The provision of Order 5 Rule 12 (1) of the then Oyo State High Court (Civil Procedure) Rules 1988 could not as a matter of law override or be taken to be superior in the order of legislation to the provision of Sections 2 (1) and 24 of the Legal Practitioners Act Cap. 209 LFN 1990 on which the cases of Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521 and Oketade v. Adewunmi (2010) 8 NWLR (pt.1195) 63 and others were based.” – Per MOJEED ADEKUNLE OWOADE, J.C.A.

MANDATORY PROVISIONS OF THE LEGAL PRACTITIONERS ACT – WAIVER OF STATUTORY PROVISIONS

“The Learned Counsel for the Respondent could have made valid distinctions in the issue of waiver of statutory provisions that could either be mandatory or directory. Suffice to say that the provisions of the Legal Practitioners Act that requires a natural person that has been called to the Nigerian Bar as a Legal Practitioner can only be mandatory and such provisions cannot be waived to accommodate signing of processes by an artificial law firm that was not called in the firm name to the Nigerian Bar.” – Per MOJEED ADEKUNLE OWOADE, J.C.A.

DEFINITION OF LEGAL PRACTITIONER – DISTINCTION BETWEEN A LEGAL PRACTITIONER AND A LAW FIRM

“It is clear from the foregoing Sections 2 and 24 of the Legal Practitioners Act, supra that a law firm is different and distinct from the legal practitioner(s) that practice therein. While in my humble estimation a law firm as a corporate and an inanimate object lacks the capacity to practice law or even file processes in our Courts, the legal practitioner whose name has been enrolled in the register of the Supreme Court is the human being endowed with such capacity.” – Per CORDELIA IFEOMA JOMBO-OFO, J.C.A.

SUPREMACY OF THE LEGAL PRACTITIONERS ACT OVER RULES OF COURT

“It is immaterial that Order 5 Rule 12 (1) of the Oyo State High Court (Civil Procedure) Rules, 1988 (applicable to Osun State) provides in part to the contrary. Being an inferior legislation to the Legal Practitioners Act of the Federation, the Oyo State High Court Civil Procedure Rules cannot fly.” – Per CORDELIA IFEOMA JOMBO-OFO, J.C.A.

DOCTRINE OF STANDING BY – APPLICATION TO LAND DISPUTES

“Where a party becomes aware of the existence of Court proceedings in respect of a piece of land but fails to intervene or make it known that he had interest in the land, he must be deemed to have no interest in the land and indifferent to the outcome of the proceedings. In the instant case, the learned trial judge accepted that there was direct evidence proceeding from the mouths of the Respondents that they had knowledge of the action between the Appellant and one Ogunleye in respect of the same parcel of land in dispute in the present proceedings. It was therefore wrong for the learned trial judge to hold that the respondents were not caught by the doctrine of standing by.” – Per MOJEED ADEKUNLE OWOADE, J.C.A. (citing Oni v. Olokun (1995) 1 NWLR (pt. 370) 189)

CONSEQUENCES OF STANDING BY IN LAND LITIGATION – LAND CHEATS

“The general principle is that where a party, quite cognizant of the existence of Court proceedings in respect of a piece of land, does not intervene or does make it known that he had interest in the land, he must be deemed to have no interest in the land and therefore be indifferent to the outcome of the proceedings. Those who in those circumstances, later lay claim to the land are land cheats.” – Per MOJEED ADEKUNLE OWOADE, J.C.A. (citing Ikpang v. Edoho (1978) 2 LNR 29 at 36)

ESTOPPEL BY STANDING BY – EFFECT OF KNOWLEDGE OF PREVIOUS LITIGATION

“It should however be mentioned that previous judgment not inter parties such as Exhibits F and J, are clearly admissible in evidence in proof of acts of possession which constituted a part of the Appellants case in this action. See Ababio II v. Ohene Akyin 2 WACA 380. So, too, even where a proceeding is res inter alios acta, it can still operate as estoppel by conduct or standing by if there is cogent and accepted evidence, as in the present case, that the parties knew of the previous battle but stood by and failed to intervene.” – Per MOJEED ADEKUNLE OWOADE, J.C.A. (citing Alli v. Alesinloye (2000) 2 SCNQR (pt. 1) 285 at 324)

CONCEPT OF ESTOPPEL – PRINCIPLE OF JUSTICE AND EQUITY

“Estoppel is not a rule of evidence. It is not a cause of action. It is a principle of justice and equity. It comes to this; when a man, by his words or conduct, led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so.” – Per MOJEED ADEKUNLE OWOADE, J.C.A. (citing Moorwgatee Marchantile Co. Ltd v. Twitchings (1976) 1 QB 225 at 241)

ADMISSIONS IN PLEADINGS – EFFECT ON PROOF

“Indeed, whether formal or informal, admissions are made by a party to a civil proceeding so as to relieve the other party of the necessity of proving the matters claimed. When both parties have agreed about a particular matter in their pleadings and/or evidence such matter need not be proved and they should accept such an agreed fact as established.” – Per MOJEED ADEKUNLE OWOADE, J.C.A.

COUNTER-CLAIM BASED ON RE-LITIGATION OF PREVIOUS JUDGMENT – DISMISSAL

“From all the above, I am in agreement with the Plaintiffs Counsel that the Defendants are caught by the doctrine of standing by, and are therefore bound by the previous judgment in Exhibit B even though they were not parties to the suit in which the judgment was given. Accordingly, the defendants counter claim aimed at relitigating the same named land in Exhibit B will not be allowed, and the same is hereby dismissed.” – Per MOJEED ADEKUNLE OWOADE, J.C.A.

EFFECT OF INCOMPETENT WRIT AB INITIO – STRIKING OUT

“With such an incompetent initiating process, the learned trial Judge was denied the leverage and competence to adjudicate in the case ab initio. I too resolve issue 1 (one) in favour of the appellant and against the respondents.” – Per CORDELIA IFEOMA JOMBO-OFO, J.C.A.

CASES CITED

STATUTES REFERRED TO

• Legal Practitioners Act, Cap. 207 Laws of the Federation, 1990

• Legal Practitioners Act, Cap. 209 Laws of the Federation, 1990

• Evidence Act, Cap. 112 Laws of the Federation, 1990

• Evidence Act, 2011

• Oyo State High Court (Civil Procedure)

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