Mrs Olayinka Adewunmi v. Mr Amos Oketade

I have read in advance the lead judgment delivered by my learned Niki Tobi JSC. I entirely agree with the reasoning and conclusion reached that the appeal lacks merit and should be dismissed. I also dismiss the appeal, and abide by the consequential orders made in the lead judgment

P.7

This is yet another interlocutory appeal against the decision of the Court of Appeal, Ibadan Division (hereinafter called “the court below”) delivered on 8th March, 2001. Dissatisfied with the said decision, the Appellant appealed to this court. In his Brief of Argument, two (2) issues are formulated for determination, namely,

“(i) Whether the lower court had jurisdiction to make interlocutory order which are similar and akin to final order and or determination of the substantive appeal yet to be heard before them (sic).

(ii) Whether an award of cost (sic) can be made without hearing the parties on issues of cost (sic)”.

I note that it is stated therein, that issue one covers grounds 1 and 2 of the notice of Appeal and that the second issue, covers ground 3 of the Notice of Appeal.

I note that the respondents filed a Notice of Preliminary Objection as to the competence of the appeal itself and urging the Court, to “dismiss” the appeal on this ground – i.e.

P.8

“that the Appeal is incompetent in that both the Notice of Appeal and the Appellant’s Brief of Argument were not issued by a legal practitioner known to law”

Without prejudice to the Objection however, the respondents have also formulated two (2) issues for determination, namely,

“i) Whether the lower court had power or jurisdiction to make the orders of 8th March, 2001. Grounds 1 and 2.

ii) Was the ward of N5,000.00 (Five Thousand Naira) cost (sic) properly made by the lower court? Ground 3″.

It is now firmly established that a point of law including that on jurisdiction, can be raised on a Preliminary Objection, if the point, will be decisive of the whole litigation. See the cases of Everrett v. Ribbands (1952) 2 Q.B. 198 @ 206; Obatoyinbo v. Oshatoba (1996) 5 SCNJ. 1; Comptroller Nigeria Prisons Service, Ikoyi Lagos & Ors. V. Dr. Femi Adekanya & Ors. (2002) 7 SCNH 299. and Messrs. NV. Scheep & anor. V. They MV “Saraz” & ors, (2002) 12 SCNJ. 24 @ 55 – per Karbi-Whyte JSC, referring to some other cases therin. I will deal with the Objection at once, notwithstanding that this is most frivolous and worthless appeal in a case where the Appellant as succinctly noted by the court below and as borne out by the Record, has employed and exploited the instrumentality of appeal to the maximum and has succeeded in remaining in the residential premises belonging to the Respondents, since 31st May, 1994 when the Magistrate’s Court Ibadan, ordered him to deliver possession of same and up till now – a period of about fifteen (15) years.

P.9

The facts that are not in dispute as stated in the Respondents’ Brief are that

“i) the Appellant is a tenant of the Respondents.

ii) that as far back as 31st May, 1994, the Chief Magistrate’s Court Ibadan delivered its Judgment whereby it ordered the Appellant to deliver to the Respondents possession of the apartment being occupied by the Appellant situated at No. 2 Irawo Lane, Agbowo, Ibadan.

iii) that the Appellant never complied with the said Order but instead filed one application after the Order (sic) including numerous appeals.

iv) that at the Court of Appeal, Ibadan Division, the Appellant appealed against virtually all the Rulings made by that Court and never prosecuted them except the one subject of the present appeal.

v) that the Appellant has remained on the premises till date”.

Now, I note as rightly submitted by the respondents, that both the Notice of Appeal and the Appellant’s Brief, were signed by “Olujinmi&Akeredolu”. There is no Legal Practitioner bearing or with such a name on the Roll. A Legal Practitioner is defined in Section 24 of the Legal Practitioner’s Act thus:

“means a person entitled in accordance with the provisions of this Act to practice as a barrister generally or for the purposes of any particular office or proceeding”.

See also Section 2(1) of the said Act. I believe that Olujinmi & Akeredolu”, is a Law Firm and there is no evidence that it is registered as a Business Name.

P.10

The consequence is that both the said Notice of Appeal and the Appellant’s Briefs, are incompetent, invalid and therefore, null and void as rightly submitted in the Respondents’Brief. The courts, including this Court, have pronounced on such document or document signed as So So & Co. See the cases of The Registered Trustees of Apostolic Church Lagos Arch-diocese v. Rahman Akindele (1967) NMLR 263 @265. The unreported cases of suit CA/J/162/2000 – First Bank of Nigeria Plc. & anor. V. Alhaji Selmanu Maidawa – dated 27th March, 2002 – per Mangaji JCA (of blessed memory) @ pages 1.3 & 14; My unreported Judgment Suit CA/J/234/2000 dated 7th December, 2004 – Major-General Bamiyi (Rtd) v. Danladi A.B. Galla. See recently, the case of Okafor & 2Ors. v. Nwoke & 4 ors. (2007) 10 NWLR (Pt.1043) 521; (2007) 3 SCNJ. 185; (2007) &S.C. (Pt.11) 55; (2007) All FWLR (Pt.368) 1016.

In addition, since the decision/Ruling of the court below, is interlocutory, an appeal such as the instant one, is not as of right and it is without the prior leave or either the court below or this Court, it is therefore, incompetent having regard to section 233(3) of the constitution of the Federal Republic of Nigeria, 1999. See the case of Chief A.O. Nwosu & anor. V. Offor (1997) 2 NWLR (Pt.487)274; (1997) 1 SCNJ. 193 @ 200 per Ogwegbu JSC. Citing the cases of Blay v. Solomon 12 WACA 175 @ 176; Bozen v. Altrincham Urban District Council (1903) 1 K.B. 547 and Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (Pt.35) 273. it is accordingly struck out.

P.11

On the merits of the appeal, if any, if I may answer the two issues of the Appellant, my question to the Appellant and his learned counsel is, Is it fair, equitable and in good conscience for fifteen (15) years, a landlord (s) is/are denied possession or recovery of possession of his/their premises at No. 2. Irawo Lane, Agbowo, Ibadan? My answer is definitely in the Negative.

In respect of issue (b), my quick answer, is Yes – i.e. in the positive/Affirmative. The grant or award of costs is discretionary if not provided in any Rules of Court and this Court, hardly interferes. Worse still, there is no leave sought or applied for by the Appellant or granted by the court below or this court. The consequence is now firmly settled. See also the cases of Asims (Nig) Ltd. V. Lower Benue River Basin Development Authority (2002) 8 NWLR (Pt.769) 349 C.A. and Unifam Industries Ltd. V. Oceanic Bank International (nig) Ltd. (2005) 3 NWLR (Pt.911) 83 @ 102 C.A – per Aderemi JCA (as he then was).

P.12

I note even that Section 12 of the Court of Appeal Act, Cap. 75 Laws of the Federation, 1990 on award of costs, provided as follows:

“The Court of Appeal shall have power to award costs in all civil proceedings in the Court of Appeal and subject to the provisions of any other law and to rules of court, it shall be in the discretion of the Court of Appeal to determine by whom and to what extent the costs shall be paid”.

The Appellant has stubbornly or recklessly, or both, refused to obey an order of the Magistrates Court – a cost of competent jurisdiction which gave him three (3) weeks which has now “graduated” to fifteen years.

In conclusion, it is from the foregoing and the fuller reason and conclusion in the lead judgment of my learned brother, Niki Tobi JSC just read and which I had the privilege of reading before now, and I agree with that I too, find no merit whatsoever in this appeal.

I award costs of N50,000.00 (fifty thousand Naira) in favour of the Respondents. (Not N30,000.00 as mistakenly, awarded in the lead Judgment. See the Rules of this Court in respect of costs. Speaking for myself, the appellant whose Notice of Appeal, was filed since 23rd January, 2001, does not deserve any more time to vacate the premises as even noted in the said lead judgment that the stance of the Appellant, must stop today. One (1) week in my opinion, is enough having regard to all the circumstances of this case out by the Records?

P.13

 I read before now the lead judgment of my learned brother Niki Tobi JSC just delivered and I agree entirely with his reasoning and conclusion and I adopt the judgment as mine.

P.14

I have read before now the judgment just delivered by my learned broth, Tobi JSC. I agree with the reasons therein contained and the conclusion that the appeal is devoid of merit and should be dismissed.

The facts leading to this appeal are quite revealing. The appellant is a tenant of the respondents at an apartment situate at No. 2 Irawo Lane, Agbowo, Ibadan Judgment was delivered on 31st May, 1994 that the appellant should vacate the premises within three weeks by the Chief Magistrate. The appellant appealed to the High Court of Justice, Ibadan where he obtained a stay order. The respondents filed application at the Court of Appeal to set aside the stay order granted by the High Court. In respect of the application of the Court of Appeal on 8/3/2001 at page 82 of the record found as follows:-

“it is clear from the affidavit evidence placed before us that since 1994 when the order was made the respondent had not taken sufficient steps at ensuring that his appeal to the High Court was prosecuted diligently. Similarly, it has been shown that he has been in constant breach of the condition attached to the stay granted him.”

The Court of Appeal then went ahead to grant the motion of the respondents. The stay order made by the High Court in respect of the judgment of the Chief Magistrate was rescinded. Costs of N5,000.00 was awarded in favour of the respondents.

P.15

The appellant decided to appeal to this court. The Notice of Appeal at pages 84 -86 of the record of appeal was filed by ‘Olujinmi and Akeredolu’ on 20/3/2001.

Briefs of argument were filed and exchanged by the parties. The issues distilled on both sides of the divide have been set out in the lead judgment.

The respondents filed a preliminary objection to the competence of the appeal on the ground that both the Notice of Appeal and the appellant’s brief were not issued by a legal practitioner known to law. They were both signed by ‘Olujinmi and Akeredolu’ – A law firm of Barristers and Solicitors; which is not a person entitled to practice as a barrister and solicitors whose name is on the roll of Legal Practitioners as dictated by sections 2 (1) and 24 of the Legal Practitioners Act.

The appellant did not proffer any answer to the objection. It seems that the point is conceded. The objection, to my mind, is well taken. The said processes are therefore pronounced as null and void for want of competence. Sequentially, no valid appeal can hang on them. One cannot put something on nothing and expect it to stay there. It will collapse. See: Macfoy v. U.A.C. Ltd (1962) AC 150 at page 160. The appeal should be dismissed on this score.

The appellant complained against the ward of costs of N5,000.00 against him by the court below. He did not seek leave of the lower court or that of this court in respect of award of costs made by the lower court. It is trite that appeal does not lie as of right against an award of costs by a court. The cases of Unifam Industries Ltd v. Oceanic Bank International (Nig) Ltd. (2005) 3 NWLR (Pt.911) 83 at 102 and Asim (Nig) Ltd. V. Lower Benue River Basin Development Authority (2002) 8 NWLR (Pt.769) 349 cited by the learned counsel for the respondents are in point.I endorse the views ably expressed in both cases.

P.16

The issue is resolved against the appellant who, again, had nothing concrete to offer on the same.

The appellant was ordered to vacate the said premises on 31st May, 1994. He has employed the processes of the court to stay on in the premises up till today for no just cause. That is not good enough. The law may, sometimes, appear to be an ass but most of those who operate it are imbued with adequate gumption. The appellant’s bluff has been finally called off. I wish to remind him that the ‘golden rule’ still continues to control the waves. It is ‘do to others what you want others to do to you’. It is simple as that.

For the above reasons and the fuller ones contained in the lead judgment, I form the firm view that the appeal is devoid of any iota of merit. It is hereby dismissed. I endorse all the consequential order in the lead judgment; that relating to costs inclusive.

P.17