IN THE COURT OF APPEAL OF NIGERIA
On Wednesday, the 12th day of February, 2015
AMINU RAJI ................. Appellant
(FOR HIMSELF AND ON BEHALF OF OTHER GREAT GRAND-CHILDREN OF MADAM OYASOLA AYANLOWO OF OLOYA COMPOUND, OSOGBO)
1. JIMOH OLADIMEJI .............. Respondent
2. OSENI AREMU
(ON BEHALF OF AYANLOWO FAMILY OF OLOYA'S COMPOUND ISALE-OSUN, OSOGBO)
Bode Babalola with I.B. Bamigbade for Appellant
M.A. Shittu with W.O. Lateef for Respondent
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Abdulrasaq Abdulkareem J. of the High Court of Osun State sitting in Osogbo in the Osogbo Judicial Division delivered on 12-06-2006.
The Respondents as Plaintiffs took out a writ of summons dated 24-1-2003 against the Appellant/defendant counter claimant.
The relevant pleadings in the court below are the Plaintiffs Respondents Amended Statement of claim of 18-2-2004, the statement of defence and counter claim of 20-10-2005 and the Reply to Defendant's Statement of Defence and Defence to Counter Claim of 30-11-2005.
By paragraph 22 of the Amended Statement of claim, the Respondents as Plaintiffs claim as follow:
(1) Declaration that the Plaintiffs are entitled to statutory Right of Occupancy in respect of the portion of Ayanlowo family land now in dispute situate, lying and being at Oke-Osun, Osogbo and bounded on all sides by Ayanlowo family land.
(2) Declaration that the Defendant and his predecessors-in-interest were Ishakole - paying customary tenants of the Plaintiffs family at the Plaintiffs family land at Oke-Osun, Osogbo.
(3) Forfeiture of the Defendant's customary tenancy for acts of gross misconduct for refusing to pay yearly (Ishakole) and also for claiming title to the land in dispute.
(4) The sum of N100, 000.00 being general damages for trespass.
(5) Perpetual injunction restraining the Defendant, his servants, agents, privies or any person claiming through him from entering the land in dispute and/or from further acts of trespass on the land in dispute verged Green and Red in survey plan No. OS/0823/DISP/2003/010 dated 28/3/2003 prepared by O.K. Oluokun Registered Surveyor.
The Appellant as Defendant in turn counter-claimed in paragraph 32 (3) of his statement of Defence and Counter-Claim as follows:
(i) Declaration that the counter claimants Oyasola Ayanlowo descendants are the persons entitled to a statutory Right of Occupancy over the parcel of land measuring approximately 5 Acres and situate, lying being at farm settlement Road and more particularly described and delineated on survey Plan No. OLS/147/87/008 dated 10/11/87 and prepared by A.O Orepitan, a Licensed Surveyor.
(ii) Damages of N100,000.00 for trespass and continuing trespass on the counter-claimants land.
(iii) An order of perpetual injunction restraining the defendants, their servants, agents and/or privies or any person claiming through them from entering or from trespassing on the said parcel of land in dispute.
From the pleadings and evidence, the Respondents claim that the vast land of Ayanlowo family at Ijetu and Oke-osun including the one in dispute was originally granted by Oba Lare the first Ataoju of Osogbo to her daughter Katisan. That Katisan begat Ayanlowo, the ancestor of Ayanlowo family of Oloya's compound, Osogbo. And, that after Katisan's death her land was inherited by Ayanlowo.
The Respondents as Plaintiffs who are the great grand children of Ayanlowo also claim that after the death of Ayanlowo, the family land was occupied and continued to be managed by heads of family in succession namely Ayangbinrin, Ayantola, Ajayi, Ajala, Oladipo, Buramo Teru, Kolade Salawu Olaniyan until the turn of the present Plaintiffs/Respondents that is Jimoh Oladimeji and Oseni Aremu. That during the time of Ajayi as head of the Plaintiffs family, Onifade, the ancestor of the Defendant/Appellant approached the Plaintiffs Respondents family for land for farming at Oke-Osun when he (Onifade) was being disturbed by flood at Gbodofon where his own Aroko farmland was located.
The Respondents also claim that Onifade was permitted to plant only seasonal crops and that Onifade and his immediate descendants faithfully fulfilled their traditional obligation of paying tributes (Ishakole) to the Respondents family.
The Respondents furthered that the Appellants are in any event guilty of standing by and are stopped from denying the Respondents title to the land in dispute because they were aware of a previous suit Exhibit B between the Respondents and Olawale Oluwin which concerned the Respondents title over the vast area of land of Ayanlowo (inclusive of the land in dispute) and indeed contributed to the success of the said Appeal. No FCA/1/59/78 which the Respondents won.
The Appellant as Defendant accepted that the land in dispute was granted to their ancestor Onifade but presented a totally different traditional history in relation to Ayanlowo. He denied the 'Katisan' version of the story of Ayanlowo. He claims that the Ayanlowos migrated to Osogbo about 1869 during one Osun festival and during the reign of Ataoja Matanmi I. That the Ayanlowos came with their Oya deity and became guests of Ataoja Matanmi I. But that the Ayanlowos could not be accommodated in the palace where Osun was the deity. The Ataoja therefore settled the Ayanlowos at a place behind the palace which became known as Oloya Compound. That the Ayanlowos were also farmers and requested for and were given land by Ataoja first at Oke-Ijesa and later at Oke-Osun. The Ayanlowos according to the Appellant/Defendant that came to Osogbo included among others Ayanlowo, who was the leader, Ajayi and Oyasola, who was the only female member of the group. That Oyasola went to marry Miminue of Aroko compound where she begat Onifade. Onifade became a farmer but was being disturbed perennially by flood on his farm. Onifade's mother Oyasola requested for land from her Ayanlowo family for her only son Onifade. That Ajayi, head of Ayanlowo family and younger brother of Oyasola obliged and carved out about 5 acres of the Ayanlowo family land and made an absolute grant to Onifade through Oyasola. That the Appellants are the grand-children of Onifade and describe themselves as great-grand-children of Madam Oyasola Ayanlowo of Oloya compound.
From the facts as presented, the parties seem to have agreed that the radical title to the land in dispute belonged to the Ayanlowo family though they differ as to how Ayanlowo or Ayanlowos became seized of the land. They are both agreed that it was Ajayi, the then head of Ayanlowo family, that made a grant of the land in dispute to Onifade and it would seem that the parties are also agreed that Onifade and his children and grand children (defendants) have been on the land since Onifade was put in possession by Ajayi.
The learned trial judge held that the Plaintiffs Respondents traditional evidence was properly pleaded and is conclusive and also corroborated by Exhibit B.
He granted Respondents claims (1) and (4) but refused claim (2) and (3). In other words Plaintiffs Respondents were declared entitled to the statutory right of occupancy on the disputed land and were granted the claims of trespass and injunction. However the trial court held that the Plaintiffs have not successfully established that the defendants are their customary tenants, they are therefore not entitled to ask for forfeiture.
On the other hand, the learned trial judge dismissed the Appellant's counterclaim on the basis, first that the defendant's counter claim is aimed at re-litigating the same land litigated upon in Exhibit B and that the evidence of the defendant was inconclusive, left a number of unfilled gaps and not believable in the light of Exhibit 'B'.
Dissatisfied with this judgment the Defendant at first filed a Notice of Appeal dated 12-7-2006.
On 8/11/12, the Appellant was granted leave to raise a fresh issue of jurisdiction and to amend the Notice and grounds of appeal.
The Appellant's Amended Notice of Appeal dated 17/5/2012 contained eleven (11) grounds of appeal.
The relevant briefs of argument for this appeal are:
(1) Appellant's Amended brief of Argument dated 1/2/12 filed on 16/1/13 and deemed filed on 6/5/13.
(2) Respondents Amended brief dated 8/5/13 and filed on the same day.
Learned Counsel for the Appellant nominated four (4) issues for determination as follows:
(i) 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. (Ground 1).
(ii) Whether the learned trial judge was not wrong when he held that the land in dispute in this case is the same as, or forms part of, the land litigated upon in the previous case Exhibit 'B' and so dismissed the defendant's Counter Claim and decided the case solely on Plaintiffs claim (Grounds 2, 4, 6, and 7)
(iii) Whether on the state of the pleadings and evidence led, the learned trial judge was not wrong when he awarded declaration of title to the Plaintiffs instead of the Defendants (Grounds 3, 5, 9).
(iv) Whether on the state of pleadings and evidence led, the learned trial judge was not wrong when he awarded damages for trespass and injunction to the Plaintiffs, instead of the Defendants (Ground 8).
On the other hand, Learned Counsel for the Respondents formulated the following issues for determination:
1. Whether the court will not prefer to do substantial justice by deciding the substance and merit of this case instead of the issue of counsel adding "& Co" after his name on his process, in the particular circumstances of this case where the complaining party's counsel never objected and also endorsed his own process, viz "Memorandum of Appearance" with J.O. Babalola & Co?.
2. Whether the vital findings/decisions of the learned trial judge in respect of the previous judgment Exhibit B were not supported by evidence?
3. Whether the decisions of the learned trial Judge accepting the traditional evidence of the Plaintiffs/Respondents in support of their claim of title and rejecting that of the Defendant/Appellant in support of their counter claim for title in respect of the same land in dispute, were not supported by evidence.
4. Whether the award of N50,000.00 damages in favour of the Plaintiffs Respondents against the Defendant/Appellant for trespass was not justified on the evidence before the court?
I have carefully gone through the record of proceedings and the briefs filed by the parties in this appeal, I am convinced that the justice of the appeal shall be met by the following two issues.
(a) Whether the learned trial judge had jurisdiction to entertain the Plaintiffs/Respondents case on the face of the Writ of summons and statement of claim which were not signed by the Plaintiff or by a legal practitioner.
(b) Whether the learned trial judge was right to have dismissed the Defendant's/Appellant's Counter-Claim.
On issue 1, Learned Counsel for the Appellant noted that the fundamental nature of jurisdiction to the exercise of judicial power in our adversatorial process cannot be over emphasized. That a court would be said to have the competence or jurisdiction to adjudicate over a lis when the following conditions are conjunctively present:
(1) It is properly constituted as regards numbers and qualifications of 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 fulfillment of any condition precedent to the exercise of jurisdiction.
He referred to the cases of Madukolu V. Nkedilim & Ors (1962) 1 All NLR 587 and Alao V. ACB Ltd (2002) 2 SCNQR 1067.
Learned Counsel submitted that the Plaintiffs Respondents writ in the instant case dated 20/01/2003 was issued by A. Ajibola & Co. and signed by Yemi Ajibola & Co. (page 2 of the Record). That neither Yemi Ajibola & Co. and/or A. Ajibola & Co. is a legal practitioner. Neither the Plaintiff nor a legal practitioner signed/endorsed the Writ of summons. The Plaintiffs case, said Counsel, did not come before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
He referred to the cases of Okafor V. Nweke (2007) 10 NWLR (pt. 1043) 52, Oketade V. Adewunmi (2010) (pt 11) MJSC 31 at 36 - 37, SLB Consortium V. NNPC (2011) 3-4 MJSC 145 and submitted that as the originating process signed by Yemi Ajibola & Co. is incompetent, the trial court had no jurisdiction to adjudicate upon the Plaintiffs writ of summons.
He added that issue of jurisdiction cannot be waived by the parties or by the court and that the competence of a court to adjudicate on a matter is a legal and constitutional prerequisite. He urged us to set aside both the writ and the judgment based on the writ and to decide this case on the counter claim which in law is a separate action.
Learned Counsel for the Respondents on the other hand submitted in essence that the learned Appellant's Counsel argument is in bad faith. That the Writ was issued and served in 2003. i.e. 10 years ago. That an unconditional Memorandum of Appearance was filed, and the Memorandum of Appearance filed was also endorsed with J.O. Babalola & Co, the same act which he is now complaining about. He argued that for the above reason the present case is distinguishable from the facts of Okafor V. Nweke (supra) and other similar cases in that line.
Learned Counsel submitted further that at the time of filing the writ, the applicable Rule of court was the old Oyo State High Court (Civil Procedure) Rules 1988 (applicable to Osun State), Order 5 Rule 12 (1) of which in part provides as follows:
"12 (1) where a Plaintiff sues by a legal practitioner, the writ shall be endorsed with the Plaintiffs address and the legal practitioner's name or firm___"
He argued that the applicable Rules of Court under which the writ of summons was filed specifically permitted the writ to be endorsed with the name of the firm of the legal practitioner. This, he said was not the background of the case of Okafor V. Nweke (supra).
He referred to the case of David V. Jolayemi (2011) 13 WRN 54 at 85 where the Ilorin Division of the Court of Appeal held that the legal practitioner had an option to endorse the writ of summons with either his name or the name of his firm and reminded us that Okafor V. Nweke's case did not decide that applicable Local Rules to the contrary as in this case in hand, was in conflict with Section 24 of the Legal Practitioners Act.
He referred to the cases of Amaechi V. INEC (2008) 33 NSCQB 332 at 424 - 425, Engineerins Enterprise V. A-G Kaduna State (1987) 1 NSCC 601 at 613, Associated Discount House Ltd V. Amale Trustees Ltd (2006) 26 NSCQR 1251 and noted that the court is enjoined to do substantial justice, not technical justice.
Learned counsel for the Respondent then referred to the Supreme Court decision in Ogundele V. Agiri (2009) 40 NSCQR p. 427 which was followed by Kekere-Ekun JCA as he then was in the Akure Division of the Court of Appeal in the case of Fatoki V. Baruwa Unreported Appeal No. CA/1/90/2006 of 2/2/2012 to the effect that the rule in Okafor V. Nweke (supra) would not apply where the issue of incompetence of process did not form a subject matter of the appeal but merely raised suo motu by a Justice of the appellate court.
Learned Counsel for the Respondent submitted further that the question is not as the Appellant's Counsel put it that jurisdiction cannot be waived but that of a waiver of a statutory provision that is S.24 of the Legal Practitioners Act.
He submitted that the law on the issue of waiver of statutory provisions is that there are two types of statutory provisions namely, mandatory and directory. That where a statutory provision is mandatory, it cannot be waived, but where it is directory, it can be waived. Also, that the test of determining whether a statutory provision is mandatory or directory depends on whether the provision is meant for the benefit of the state or general public or the individual or a class of individuals.
He referred to the cases of Ariori V. Elemo (1983) 1 SCNLR 1 at 13 and Odu'a Investment V. Talabi (1997) 7 SCNJ 600 at 652 - 654 and submitted that it is apparent that the beneficiaries of the provision of S.24 of the Legal Practitioners Act 1990 in this case are the parties in the case. Therefore, the Appellant as Defendants could raise objection to the non-compliance with the provision at the trial court and could also waive their right to do so.
The Appellant, said Counsel, had chosen to waive his right of objection by participating fully in the trial without raising objection. He referred to the cases of Adesoke Motors V. Adesanya (1989) 5 SCNJ 80 at 88 - 92 and Odu'a Investment V. Talabi (1997) 7 SCNJ 600 at 652- 654 and urged us to resolve this issue against the Appellant.
I will like to make one or two preliminary points on issue 1. The first is that 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.
Secondly, 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.
Thirdly, the decision of the Supreme Court in Ogundele V. Agiri (2009) 40 NSCQR 427 confidently referred to by Learned Counsel for the Respondent is distinguishable from the cases of Okafor V. Nweke (supra) and Oketade V. Adewunmi (supra) and it is inappropriate for consideration in the instant case.
The issue of incompetence of processes was not raised in the decisions in Ogundele V. Agiri (supra) and the latter decision of the Court of Appeal in Fatoki V. Baruwa (supra).
In the instant case, 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.
The case of Okafor & Ors V. Nweke & Ors (2007) 10 NWLR (pt. 1043) 521 concerns an application for extension of time to cross-appeal before the Supreme Court, the exhibited notice of appeal amongst other processes was signed by J.H.C. Okolo SAN & Co, meanwhile, the applicants filed a brief of argument in respect of the application and the brief was also signed by J.H.C. Okolo SAN & Co. In this circumstance, a unanimous Supreme Court struck out the application for lack of compliance with the provision of Section 2 (1) and 24 of the Legal Practitioners Act Cap. 207 LFN 1990.
Again, in Amos Oketade V. Mrs Olayinka Adewunmi & 4 Ors (2010) 8 NWLR (pt. 11195) 63, the respondents raised a preliminary objection to the competence of the appeal on the ground that both notice of appeal and the briefs of argument were not signed by a legal practitioner known to law but a firm of solicitors called "Olujimi and Akeredolu". The Supreme Court declared the notice of appeal and brief that were filed to be invalid, null and void and subsequently that the appeal was incompetent.
The cases of Okafor & Ors V. Nweke & Ors (supra) and Oketade V. Adewunmi & Ors (supra) were decide strictly on the effect of the provisions of Section 2(1) and 24 of the legal Practitioners Act cap. 207 LFN 1990. This as much was said by Onnoghen JSC in the case of Okafor & Ors V. Nweke & Ors (supra).
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.
See: Madukolu V. Nkemdilim (1962) 1 All NLR 587, Alao V. ACB Ltd (2000) 6 SC (pt.1) 27 at 28.
Issue 1 is accordingly resolved in favour of the Appellant.
On issue 2, Learned Counsel for the Appellant submitted that the learned trial Judge held at page 102 of the record inter alia that:
"The Defendants are caught by the doctrine of standing by and are therefore bound by the previous judgment in Exhibit B___ accordingly the defendants counter claim aimed at re-litigating the same named land in Exhibit 'B' will not be allowed and the same is hereby dismissed".
On the above, Learned Counsel referred to the case of Adone V. Ikebudo 8 NSCQR 174 at 190 where it was held that court is permitted to study pleadings in a previous suit and asked what was the pleadings and land litigated upon in the previous case, Exhibit B?
He submitted that the Plaintiffs claim in Exhibit B was for declaration of title to a piece of land at Oke-Osun and forfeiture of defendant's tenancy on the said land. That paragraph 3 of the particulars of claim to the effect that the land in dispute was originally granted to Katisan, a female, by her father Laro who was the founder of Osogbo was neither admitted nor denied in the particulars of Defence but the averment that after Katisan's death the land was inherited by Ayanlowo (the ancestor of Ayanlowo family) and that after the latter's death it remained the Ayanlowo family's property till today were specifically denied (see page 3 of Exhibit 'B').
He submitted that the findings of the president of the Native Court which was confirmed by the appeal court in Exhibit B is stated at page 4 (Exhibit B as follows:
"That the defendant was a tenant of the Plaintiff on the land in dispute and entered judgment for the Plaintiff as per his writ of summons" - (Declaration of title and forfeiture of defendant's tenancy. See page 1 of Exhibit B).
Appellant's Counsel submitted that there was no specific finding that Plaintiffs traditional history was correct. That, the 'piece of land at Oke- Osun' litigated upon in that case was described at page 12 of Exhibit B as:
"The land as described in the Writ of summons is stated to be bounded on the first side by Esan Odeola's farmland on the second side by Esan Ajao's farmland on the third by Afolabi Fetuata's farmland and on the fourth side by Olokun Stream and Sheu Olode Arakin's farmland".
That, the size of the piece of land at Oke-Osun or that in the Writ of summons was not stated.
Appellant's Counsel submitted that the Plaintiffs/Respondents tendered Exhibit 'B' but led no evidence at all on the Exhibit. That nowhere in the PW7's evidence did he say that the land in dispute in the previous case is or was related to the land in dispute in this present case. He submitted that the insistence of the learned trial judge that the land litigated upon in Exhibit B and the land in dispute in the counter-claim in this suit is the same is not on the evidence received by the learned trial judge.
Learned Counsel quoted portions of the evidence of the 2nd Plaintiff as PW7 and submitted that the evidence of PW7 did not relate the land in dispute in the previous judgment Exhibit B to the land in dispute in the present case. Furthermore, that the boundaries in Exhibit A the Plaintiffs survey Plan which defined the boundaries of the land claimed by the Plaintiffs are: Weso family land, Muslim Grammar School, Olomola Hospital and Ayanlowo family land.
He submitted that on the other hand the Appellant defendant spoke to his survey plan Exhibit E at page 43 of the record in the following terms:
"The land I am claiming is about 5 acres. The 5 acres starts from Timehin Grammar School, Weso family land by the right, Ayanlowo land where the 2nd Plaintiff is farming and Raimi Alegee in front towards Aisu."
The above piece of boundary evidence, said Counsel, was also confirmed by the DW1. He submitted that the pieces of land described in Plaintiffs Exhibit A and E have Defendant's Weso family land and Ayanlowo land as their boundaries.
He submitted that there is no evidence that the piece of land in respect of which the defendant appellant sought a declaration of title in this case, Exhibit E, is the same as, or form part of the piece of land in respect of which Exhibit 'B' was decided in the previous suit.
He referred to the case of Dokubo V. Omoni (2001) FWLR (pt. 61) 1820 and submitted that the land litigated upon in the previous case, Exhibit B has no nexus or bearing at all with the land described in either Exhibits A or E which are the land being litigated upon in the Plaintiffs claim or defendants counter-claim respectively in the present suit.
Learned Counsel submitted that it was the duty of the Plaintiffs/Respondents who relied on Estoppel or standing-by to prove that the piece of land which was decided in the previous case Exhibit B is the same as, or form part of the piece of land in dispute in this present suit, as he who asserts must prove. But, that at page 95 of the record, the learned trial Judge held that:
"The Plaintiffs herein are relieved of the burden of proving that the land in dispute is the same as, or forms part of, the land in litigation in Exhibit B following the above admission by the defendant in paragraph 20 of his statement of defence. And I so find".
On this, Learned Counsel referred to the case of Okochi V. Animkwoi (2003) All FWLR (pt. 200) 1524) All FWLR (pt. 200) 1524 for the proposition that a court ought to consider the totality of a party's pleadings instead of isolating a single paragraph of the pleadings and coming to conclusions on same. That, had the trial judge followed the principle in Okochi V. Animkwoi (supra), he would not have fallen into the error of concluding, as he did, that by the averment in paragraph 20, the Appellant had admitted that the land in dispute in the previous case Exhibit B is the land in dispute in this suit.
He argued that all that the Appellant was saying in paragraph 20 is that the attack by Oluwin on the Ayanlowo's family land was taken as an attack on all those who derive title from Ayanlowo especially Appellants who are related to the Plaintiffs/Respondents through Oyasola Ayanlowo.
Counsel Submitted that the grant of the land in dispute to Onifade was on account of the relationship between Onifade's mother and the Ayanlowo family through Oloya compound. Hence Appellant being related to Respondents through Oloya compound, contributed financially only and not that the traditional history of Plaintiffs/Respondents was endorsed by the Appellant as correct. Appellant did not attend court and was not a party in the case against Oluwin. He added that Respondents cannot hide under any alleged weakness in Defendant/Appellant pleadings but must succeed on the strength of his own case.
Learned Counsel submitted further that parties in the previous case are not the same as parties in the present suit and also the land in dispute then was not the land in dispute here and therefore that the Appellant was not caught by the doctrine of standing by and not bound by the previous judgment in Exhibit B.
On issue 2, Learned Counsel for the Respondent submitted that the learned trial judge made certain vital findings in respect of the previous judgment, Exhibit B, leading to his decision in this case as follows:
(1) That the land in dispute formed part of the land litigated upon in Exhibit B.
(2) That the Defendants Appellants were aware of the litigation in Exhibit B and contributed money to assist the Plaintiffs Respondents to prosecute same.
(3) That the Defendants/Appellants were caught by the doctrine of standing-by and bound by the previous judgment Exhibit B.
(4) That the Defendant counter-claim aimed at re-litigating the same land in Exhibit B will not be allowed and the same is dismissed. (pages 101 to 102 of the record).
Learned Counsel then submitted in justification of the above findings as follows.
That the Plaintiffs/Respondents pleaded that their family made a grant of the land in dispute which formed part of their entire family land at Oke-Osun, Osogbo to Onifade, the grandfather of the Defendant/Appellant. That the Plaintiffs/Respondents further pleaded that the Defendants/Appellants were aware that their family was involved in a dispute with Olowin family over their entire land at Oke-Osun in Exhibit B part of which is the land in dispute in the present suit (paragraphs 6 and 16 of Amended Statement of claim).
He submitted that the evidence of PW7 in line with these averments was not challenged by cross-examination. Neither was there any objection to the admissibility of Exhibit B.
He noted that Exhibit B is in respect of a dispute on title between the Plaintiffs/Respondents family and Oluwin family and covered the entire family land of the Plaintiffs/Respondents part of which is the present land in dispute.
Counsel submitted that apart from the unchallenged pleadings and evidence of the Plaintiffs/Respondents and Exhibit B, the Defendants/Appellants themselves also admitted in their pleading and evidence in court (1) that the land in dispute was granted to them by the Plaintiffs/Respondents (2) that the land in dispute granted to them formed part of the Plaintiffs/Respondents land in litigation with Oluwin family in Exhibit B, and (3) that they were aware of the litigation in Exhibit B and contributed money to assist the Plaintiffs Respondents family to prosecute the case.
Learned Counsel submitted that for example in paragraph 4 of the statement of Defence/counter-claim, the Defendant/Appellant ad mitted as follows:
"In further answer to paragraphs 4, 5, 6 and 15 of the statement of claim, the Defendant say that the settlement of the Ayanlowo family on the large expanse of land on which the land in dispute form a small part is as follows___" (page 8 of the record).
That, also in paragraph 7 (iii) of the statement of Defence/Counter Claim, the Defence admitted as follows:
7 (iii) "Ajayi then, for himself and on behalf of other principal members of the family, "carved out about 5 acres of the large expanse of land" for Oyasola as her own portion of the land owned by all of them including Oyasola herself" (page 9 of the record)".
And, that in paragraph 20 of the statement of Defence at page 11 of the record the defence further admitted as follows:
20 "with respect to paragraph 16 of the statement of claim, the defendants say that the land disputed with Oluwin family "involved the whole of the original Ayanlowo land" and the defendants in consonance with their doing most things in conjunction and in common with the Ayanlowo family of Oloya compound contributed money to prosecute the case against the Oluwin family__"
Learned Counsel submitted that the DW3 (Junior brother to the defendant/appellant) admitted in his evidence-in-chief his awareness of the case in Exhibit B as follows:
"I am aware of the case between the Plaintiffs and Oluwin. Salawu Olaniyan, the then Baale of the Plaintiffs family called on us to contribute money towards the prosecution of that case as family members, and we contributed 4 Guinness and handed it over to Olaniyan, the then family head of Oloya's compound".
That the defendant/appellant himself as DW5 admitted in his examination-in-chief as follows:
"At Oke-Osun, there was a dispute between Olawale Oluwin and the Ayanlowo family headed by Babaoya, Oyakolade. I contributed the sum of 4 Guinness to my brothers at home for contribution towards the case between them. It was Salawu Olaniyan I learnt who collected the money from Raimi Raji (DW3) on behalf of defendants"
Learned Counsel submitted that upon the defendants admissions in their pleadings and evidence, coupled with the unchallenged pleadings and evidence of the Plaintiffs/Respondents and Exhibit B, the learned trial judge was abundantly justified by evidence in holding that they (Appellants) were aware of the previous case against Oluwin family, (Exhibit B) and that the land in dispute being claimed by them formed part of the land in dispute in the previous case, Exhibit B.
Clearly, said Counsel, if the Appellant had any interest or title to protect or to claim in the land in litigation in Exhibit B, they should have applied to join as a party to protect that interest in the case because the case in Exhibit B was one of claim and counter claim for title. He referred to the cases of Oni V. Olokun (1995) 1 NWLR (pt. 370) 189, Ikpang V. Edoho (1978) 2 LNR 29 at 36, Alli V. Alesinloye (2000) 2 SCNQR (pt. 1) 285 at 324.
The above authorities, said counsel, are in consonance with the provision of S. 151 of the Evidence Act cap. 112 LFN 1990. He submitted that the dismissal of the Counter-Claim of the Defendants/Appellants for title was therefore justified in view of the previous judgment Exhibit B.
In deciding issue 2, the learned trial judge was right to have relied first on the admissions in the pleadings of the Defendant/Appellants to hold that the land in dispute formed part of the land litigated upon between the Respondents and the Oluwin family in Exhibit B and secondly to accept the evidence that the Appellants were aware of the litigation in Exhibit B and stood by and therefore estopped from any attempt this time around to relitigate on the land in dispute.
Paragraphs 4, 7 (iii) and 20 of the Appellants statement of defence coupled with the evidence of DW3 and DW5 show clearly that the land in dispute formed part of the large expanse of land of Ayanlowo family litigated upon in Exhibit B.
Indeed, DW5 stated categorically in his evidence-in-chief at page 37 lines 4-18 of the record that the land in dispute granted to his family formed part of Ayanlowo family land:
"He then met his mother Oyasola that she should go and meet her parents at Oloya's compound, Ayanlowo family and request for land from Ayanlowo's land at Oke-Osun. By that time the Ayanlowos have just left their form at Okejetu Osogbo (also known as D.O's office, Osogbo). Babaoya Ajayi, was the younger brother of Oyasola who was the one that Oyasola met for land. Ajayi then informed other members of Ayanlowo family that Oyasola should be given her own portion of the land since she was the only woman. Ayanlowo family together with Ajayi, the then head of the Ayanlowo family, Oyasola and Onifade all went to the Asaba farm, Oke-Osun, Osogbo. A piece of land was shown to Oyasola, and Onifade her son. Oyasola and Onifade later returned home, and informed their own children at Aroko's compound about the grant of the land".
In the instant case, the learned trial judge was right to have relied on the admissions in the pleadings and evidence of the Defendants/Appellants to hold that the disputed land formed part of the land litigated upon in Exhibit B.
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. See. Section 75 Evidence Act cap. 112 LFN 1990.
Section 123 Evidence Act 2011. See also. Friday Kamalu & Ors V. Uka Umunna & ors (1997) 5 NWLR (pt. 505) 321, Edokpolo & Co. Ltd V. Ohenren (1994) 7 NWLR (pt. 385) 511, Salu V. Egeibon (1994) 6 NWLR (pt. 348) 23, Fed. Col. of Education V. Anyanwu (1997) 4 NWLR (pt. 501) 533, Kenlink Holdings Ltd V. R.E. Invest Ltd. (1997) 11 NWLR (pt. 529) 438, DIN V. African Newspapers (Nig.) Ltd (1990) 3 NWLR (pt. 139) 392, Gwani V. Ebule (1990) 5 NWLR (pt. 149) 201, C.A. Okwanranya V. Eke (1996) 3 NWLR (pt.436) 335.
Similarly, and in all the circumstances of the case the learned trial judge was right to have accepted the evidence not only that the Appellants were aware of the litigation in Exhibit B without making any effort to join as a party to the suit but rather contributed money for the Respondents to prosecute the case.
Indeed the reliance on the authority of the case of Oni V. Olokun (1995) 1 NWLR (pt. 370) 189 by the trial judge in disallowing the Counter-Claim of the Defendants/Appellants was quite opposite. For example, at page 200 of the report in Olokun's case it was held as follows.
"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".
Also in Ikpang V. Edono (1978) 2 LRN 29 at 36 Aniagolu JSC had this to say:
"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__".
And in Alli V. Alesinloye (2000) 2 SCNQR (pt. 1) 285 at 324 Iguh JSC remarked pungently as follows:
"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. See Ndukwo Okafor V. Agwu Obiwo (1978) 10 SC 115".
All the above cases are applications of the doctrine of estoppel as embodied in the provision of Section 151 of the Evidence Act Cap. 112 LFN 1990 (now section 169 Evidence Act 2011).
151. When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person's representative in interest, to deny the truth of that thing".
Indeed, estoppel is a general characterization for many and varied situations where a person in litigation is prevented from resiling from or doing the contrary of which he has led another to believe, and the special case of relying on a previous judgment as conclusive of the issue in dispute. In each case the rule is called into play in the interest of public policy to prevent the injustice and detriment to the other party who relied on the conduct of another.
Lord Denning M.R, put it succinctly thus:
"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"
Moorwgatee Marchantile Co. Ltd V. Twitchings (1976) 1 QB 225 at 241.
See also Ezewani V. Onwordi (1988) 4 NWLR (pt. 33) 27, Ashibuogwu V. Attorney General of Bendel State (1988) 1 NWLR (pt.67) 138, Iloabachie V. Iloabachie (2000) 5 NWLR (pt. 655) 178 at 219.
In the instant cases, the learned trial judge was right not only in his summary of the law of estoppel by standing by and his reliance on the cases of Akanni V. Makanju (1978) 11-12 SC 13 at 26 -27, Kpaa Saragi V. Shabako (1993) 5 NWLR (pt. 291) 67 and Ofunne V. Okoye (1960) 1 All NLR 94 at page 100 of the record of appeal but also in the application of the law to his conclusion in dismissing the Appellants Counter-Claim at page 102 of the record thus:
"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.
See. Oni V. Olokun (1995) 1 NWLR (pt.370) 189".
Issue No. 2 is accordingly resolved against the Appellant.
In this appeal, I resolved issue 1 in favour of the Appellant and issue 2 against the Appellant.
The appeal is allowed in part.
Consequent upon the resolution of issue 1 in favour of the Appellant on the basis that the Plaintiffs/Respondents Writ of Summons was incompetent ab initio the trial court had no jurisdiction to have entertained the Respondents claims. Plaintiffs/Respondents Writ of Summons in Suit No.HOS/8/2003 is hereby struck out.
Also, based on the resolution of issue 2 against the Appellants, the Defendants/Appellants Counter-Claim in Suit No. HOS/8/2003 remains dismissed.
I make no order as to costs.
SOTONYE DENTON WEST, J.C.A.:
I have read in advance the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA. I agree with the conclusion reached therein.
I wish to further emphasise that Sections 2(1) and 24 of the Legal Practitioners Act, CAP 207 of the Laws of the Federation 1990 is very clear. It provides without equivocation thus:
Section 2(1): "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."
Section 24 defines "Legal Practitioner" to be:
"A person entitled to 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 or proceedings."
To be inferred from the above statutory provisions is the fact 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, including signing and filing of processes in court. See: Okafor vs. Nweke (2007) 10 NWLR (pt. 1043) 52; Amos Oketade vs. Mrs. Olayinka Adewumi & 4 Ors. (2010) 8 NWLR (pt. 11195) 63.
It is obvious that A. Ajibola & Co. Is not a legal practitioner and therefore not on the roll. It cannot sign a court process. For this and the more detailed reasons advanced in the lead judgment, I abide by the conclusions reached by my learned brother. I also make no order as to cost.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.:
I had the chance to read in draft the lead judgment just delivered by my learned brother, OWOADE, JCA.
Undoubtedly Order 5 Rule 12(1) of the Oyo State High Court (Civil Procedure) Rules, 1988 (applicable to Osun State) provides in part as follows:
"12 (1) where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the plaintiff's address and the legal practitioner's name or firm....."
By Section 2 (1) of the Legal Practitioners Act, Cap LII Laws of the Federation, 2004:
"A person shall be entitled to practice as barrister and solicitor in Nigeria if and only if his name is on the roll."
On the other part Section 24 of the Legal Practitioners Act cap. 209 LFN 1990 provides thus:
"In this Act unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively - in effect by virtue of Section 24 of the Legal Practitioners Act, a legal practitioner in Nigeria is a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor either generally or for the purposes of any particular office or proceedings."
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. In this light, the plaintiffs/respondents' writ of summons in the instant case issued 20th January, 2003 by "A. AJIBOLA & CO." and signed by "YEMI AJIBOLA & CO." was issued in utter violation of Sections 2 and 24 of the Legal Practitioners Act, supra. See also FBN PLC. & ORS. v. MAIWADA & ORS. (2012) LPELR-9713 (SC). 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. 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.
On the whole the appeal is allowed in part, while the defendants/appellants' counter-claim in suit Nos. HOS/8/2003 remains dismissed in light of the reasoning and conclusion reached thereon in the lead judgment of my brother.
I abide by the consequential order as to costs.