EKUNDAYO & ANOR v. ABERUAGBA CITATION: (2017) LPELR-42428(CA) In the Court of Appeal In the Ibadan Judicial Division Holden at Ibadan ON MONDAY, 15TH MAY, 2017 Suit No: CA/IB/344/2009 Before Their Lordships: MODUPE FASANMI Justice, Court of Appeal CHINWE EUGENIA IYIZOBA Justice, Court of Appeal NONYEREM OKORONKWO Justice, Court of Appeal Between 1. MR. EKUNDAYO 2. MRS. EKUNDAYO - Appellant(s) And ALHAJI SALIU ABERUAGBA (For himself and on behalf of the family of Late Ayinke Aberuagba) - Respondent(s) RATIO DECIDENDI (2017) LPELR-42428(CA)
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EKUNDAYO & ANOR v. ABERUAGBA
CITATION: (2017) LPELR-42428(CA)
In the Court of AppealIn the Ibadan Judicial Division
Holden at Ibadan
ON MONDAY, 15TH MAY, 2017Suit No: CA/IB/344/2009
Before Their Lordships:
MODUPE FASANMI Justice, Court of AppealCHINWE EUGENIA IYIZOBA Justice, Court of AppealNONYEREM OKORONKWO Justice, Court of Appeal
Between1. MR. EKUNDAYO2. MRS. EKUNDAYO - Appellant(s)
AndALHAJI SALIU ABERUAGBA(For himself and on behalf of the family of LateAyinke Aberuagba)
- Respondent(s)
RATIO DECIDENDI
(201
7) LP
ELR-42
428(
CA)
1. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Effect of acourt process signed in the name of a law firm"...The arguments of the respondents are indeed persuasive but as it is, the law on thepoint now is as espoused by the Supreme Court in Okafor vs. Nweke (2007) A FWLRPt. 308 Page 1016 @ 1026 - 1027.As it stands now and until the Supreme Court in its wisdom decides to vary or overrulethat decision it remains binding its effect being to nullify a writ of summons or otheroriginating process begun by a firm of Legal Practitioners not registered in the roll ofLegal Practitioners as stipulated in the Legal Practitioners Act.In a similar case Chief Fatai Adegbiyi & Ors. vs. Chief Sikiru Balogun & Ors. Appeal No.Ca/I/4/2012 unreported Court of Appeal Ibadan delivered on 22nd January, 2016raising similar issue as in this appeal, I said as follows:-The various High Court Civil Procedure Rules provide copiously for mode ofcommencing civil actions by writ of summons. Upon the requisite endorsements suchwrit of summon shall be signed by the intending Claimant or his Legal Practitioner.In practice, most suits are signed off by a Legal Practitioner and who a LegalPractitioner is, is aptly defined in Section 24 of the Legal Practitioners Act 1975 as aperson entitled in accordance with the provisions of this act to practice as a barristeror as a barrister and solicitor, either generally or for the purposes of any particularoffice or proceedings.In this case, the Writ of Summons was initiated or signed by Peluola, Lalude & Co., afirm of solicitors which is not a person entitled to practice as a barrister and solicitorand whose name is not on the roll of Barristers and solicitors in the Supreme Court ofNigeria.The cases of Okafor vs. Nweke (2007) 10 NWLR (pt. 1043) 521 at 534 and PeakMerchant Bank vs. Nigeria Deposit Insurance Corporation (2011) 12 NWLR (pt. 1261)253 and Ogundele vs. Agiri & Anor. (2009) 12 S.C. (pt. 1) 135 at 165 have been citedin support and the consensus of judicial opinion from the apex to the base seem to bethat such defect or omission rendered the entire proceedings a nullity ab initio, thedefect being irreparable.The reason, in my view, why the entire proceedings become a nullity is that it was notbegun at all. If it was not begun, there is nothing to cure or remedy as the learnedcounsel for the 1st - 4th respondents tearfully pleaded. Being a nullity, it does notexist. As it does not exist, every superstructure founded or erected thereupon rests onnothing and therefore is vitiated. The superstructures include the proceedings and thejudgment of the lower Court the subject of this appeal. They all rest on nothing andare therefore vitiated by being set aside.I am bound by the latest Supreme Court Judgment on the point and of course our ownjudgments which followed the Supreme Court.In the same case we did in this Court my learned brother Obietonbara Daniel Kalio JCAsaid thus:-A law firm cannot file processes in Court, it is only a legal practitioner whose name ison the roll of Legal Practitioners that can. Okafor vs. Nweke (2007) 10 NWLR (part1043) p. 521 and a host of other cases have made this position absolutely clear. Alegal practitioner who has filed a process in Court in the name of a law firm will dowell to file a fresh process in the name of a legal practitioner. To proceed in the nameof a law firm will, unfortunately, only result in a cul-de-sac.?The Cul-de-Sac, is that the exercise however extensive or labourious, it may havebeen result in a nullity and futility."Per OKORONKWO, J.C.A. (Pp. 15-18, Paras. B-B) -read in context
(201
7) LP
ELR-42
428(
CA)
2. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Effect of acourt process signed in the name of a law firm"The main issue on the appeal is about the effect of a Writ of Summons or otheroriginating process begun by a firm of legal practitioner not registered in the roll ofLegal Practitioners Act. The Writ which was issued by Chief Olusegun Otayemi & Co. isnot a person entitled to practice as a barrister and solicitor. The name of the firm isnot on the roll of Barristers and Solicitors in the Supreme Court of Nigeria. See Okaforv. Nweke (2007) 10 NWLR (pt. 1043) pg. 521 at 534.The entire proceedings on the writ is a nullity as the lower Court has no jurisdiction toentertain it."Per FASANMI, J.C.A. (Pp. 18-19, Paras. E-B) - read in context
3. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Effect of acourt process signed in the name of a law firm"I agree that the originating processes having been signed by a law firm, rather than alegal practitioner whose name is on the roll of barristers and solicitors in the SupremeCourt of Nigeria, the proceeding is a nullity."Per IYIZOBA, J.C.A. (P. 19, Paras. D-E) -read in context
(201
7) LP
ELR-42
428(
CA)
NONYEREM OKORONKWO, J.C.A. (Delivering the
Leading Judgment): This appeal arose from the judgment
of Oyo State High Court delivered on 29th April, 2009
wherein Hon. Justice S.O. Akintola granted the claims of
the plaintiff herein respondent and dismissed the counter
claim of the defendant herein appellant.
In commencing the action, the respondent as plaintiff by
his solicitors has couched his writ of summons or rather the
application therefore as follows:
WRIT OF SUMMONS
INDORSEMENTS
The plaintiff’s claims from the Defendants jointly and
severally as follows:
(1) A declaration that the entire premises known as
11, Oba Abimbola Road, Felele, Ibadan (formerly
known as S7/464 Felele Layout, Challenge, Ibadan)
forms part of the Estate of Alhaja Ayinke Aberuagba.
(2) An Order directing the Defendants to hand over
vacant possession of the premises to the Plaintiff for
denying Alhaja Ayinke Aberuagba’s title.
(3) Damages/menses profits at the rate of N10,000.00