AKINSANYA & ORS v. SHONEYE & ORS

CITATION: (2016) LPELR-41939(CA)

In the Court of AppealIn the Ibadan Judicial Division

Holden at Ibadan

ON FRIDAY, 9TH DECEMBER, 2016Suit No: CA/IB/248/2012

Before Their Lordships:

MODUPE FASANMI Justice, Court of AppealCHINWE EUGENIA IYIZOBA Justice, Court of AppealHARUNA SIMON TSAMMANI Justice, Court of Appeal

Between1. OBA TIMOTHY OYESOLA AKINSANYA(The Ewusi of Makun)2. CHIEF S. A. ODUWAIYE(The Lisa of Makun)3. CHIEF TAYO OGUNTADE(The Losi of Makun)4. CHIEF ELDER OLU MAYUNGBO(The Aro of Makun)5. CHIEF O. S. OREMADE(The Oluwo of Makun)6. CHIEF OBAFEMI ASIMOLOWO ODUGUWA(The Apena of Makun)7. CHIEF OLUSEGUN OGUNJIMI(The Balogun of Makun)8. CHIEF SALAMI IDOWU(The Akoje of Makun)

- Appellant(s)

And

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1. MICHAEL OWOLABI SHONEYE(For himself and on behalf of ORUNGBA Branch ofMULERUNA-ORUNGBA RULING HOUSE)2. PRINCE SOLOMON ADEKUNLE SHONEYE3. THE SECRETARY, SAGAMU LOCALGOVERNMENT4. THE EXECUTIVE COUNCIL OF OGUN STATE5. THE ATTORNEY-GENERAL OF OGUN STATE6. CHIEF (ENGR) YEMI ADENIYI(The Olootu Omo Oba of Makun)7. ALHAJI OLOYEDE DADA FAYEMI

- Respondent(s)

RATIO DECIDENDI1. ACTION - LOCUS STANDI: Meaning of locus standi; What a party must show to establish locus

standi"Generally in law, the concept of locus standi relates to the issue of justiciability. The term locusstandi therefore denotes the legal capacity to institute an action and be heardin a Court of law. It also means title to sue, and also the right of a party to appear and be heard ona question before any Court or Tribunal. The law is that, to have locus standi, the Claimant orPlaintiff must show that he has sufficient legal interest in the subject matter. To establish that hehas sufficient legal interest, the Plaintiff must be able to show:(a) Whether he could have been joined as a party, either as a Plaintiff or a Defendant in the suit;or(b) Whether he will suffer some injury or hardship arising from the litigation.Once the party seeking the redress or remedy is able to satisfy the Court that he has sufficientlegal interest, he must be heard, because in such a circumstance, he is entitled to be heard. SeeOjukwu v. Ojukwu (2008) 4 NWLR (pt.1078) p.435; Inakoju v. Adeleke (2007) 4 NWLR (pt.1025)p.423; Dr. Tosin Ajayi v. Princes (Mrs) Olajumoke Adebiyi & Ors (2012) LPELR - 7811 (SC); andIsaac Jitte & Anor v. Dickson Okpulor (2015) LPELR - 25983 (SC). See also Pam v. Mohammed(2008) 16 NWLR (pt.1112) p.1."Per TSAMMANI, J.C.A. (Pp. 19-20, Paras. F-F) - read in context

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2. ACTION - LOCUS STANDI: How to establish locus standi in chieftancy matters"In Chieftaincy matters, as in the instant case, it is not enough for the Plaintiff to plead that he is amember of the family; but he must state that he has an interest in the Chieftaincy title and mustalso show how his interest in the Chieftaincy Stool arose. It therefore means that, membership ofa Chieftaincy family is not enough because not all members of Chieftaincy family are eligible forthe Chieftaincy. See Daniyan v. Iyagin (2002) 7 NWLR (pt. 766) p. 346 at 376; Daramola v. A.G.Ondo State (2000) 7 NWLR (pt. 665) p. 440 at 476 per Onnoghen, JCA (as he then was). Thus, inthe case of Arowolo v. Olowookere (2011) 18 NWLR (pt. 1278) p. 280 at pp.310 - 311 ParagraphsG - A, Muhammad, JSC stated the law as follows:"In a legal tussle where the claim of the Plaintiff is on Chieftaincy matter, the law is well settledthat it is not enough for the Plaintiff to state that he is a member of the family; he has to statefurther that he has an interest in the Chieftaincy title, and furthermore, he should state in hisStatement of Claim how his interest in the Chieftaincy title arose. See Momoh v. Olotu (1970) 1 AllN.L.R. 121 at 127. It is thus, the legal duty of the Plaintiff to show to the Court, through hispleadings and evidence, that he has the standing (locus standi) to institute the action either forhimself or as a representative of his family, whose civil rights and obligations have been, or are indanger of being violated or infringed. He also has to show that he or the family he represents havea justiciable dispute with the Defendant."From the above stated statement of the law as clearly stated by the Supreme Court, it would beseen that a Plaintiff in a Chieftaincy dispute or action may disclose his locus to institute the actionin any of two ways stated by the Supreme Court in the case of Emezi v. Osuagwu (2005) 12 NWLR(pt.939) p.340 at 359 Paragraphs G - H. He may do that by:(a) Showing in his Statement of Claim and leading evidence to show that the right that is beingasserted is that of his family by reason of any hereditary interest. In such situation, the actionshould be by the family through their representative(s) and it must be clearly pleaded that it is thecivil right of the family that is being claimed or pursued; and(b) By the Plaintiff asserting his own right to the Chieftaincy Stool, if he could show from thepleadings and evidence, if evidence has been led, the nature of his interest and his entitlement tothe Stool. In such a situation, it would not be enough for him to merely plead that he is a memberof the family. He must go further to plead that he had an interest in the Chieftaincy title and howsuch interest arose.See also Amusa Momoh & Anor v. Jimoh Olotu (1970) 1 All NLR. P.117 at 123; Eleso v. Governmentof Ogun State (1990) 2 NWLR (pt.133) p.420; Adesanoye v. Adewole (2006) 14 NWLR (pt.1000)p.242 and Bamisike v. Osasuyi (2007) 9 NWLR (pt.1042) p.225."Per TSAMMANI, J.C.A. (Pp. 20-23,Paras. F-C) - read in context

3. ACTION - LOCUS STANDI: What the Court considers in determining whether a plaintiff has locusstandi"It is the settled law that, to determine whether or not a Plaintiff has the requisite locus standi toinstitute an action, it is the Writ of Summons or Statement of Claim that should be considered. Inother words, in determining the locus standi of a Plaintiff, the Court would scrutinize theStatement of Claim." Per TSAMMANI, J.C.A. (P. 23, Paras. C-E) - read in context

4. APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: How a respondent who has notcross-appealed should formulate issues for determination"It is the law that a Respondent who has not filed a Respondents' Notice is not at liberty toformulate more issues than that of the Appellant. Of course, he may formulate his own issues solong as they can be rooted on the Grounds of Appeal filed, but such issues should be either anadoption of the issues raised by the Appellant or a reformulation of same with a slant which theRespondent may find suitable. The bottom line is that they should not depart from the substanceof the issues formulated by the Appellant. See Emespo J. Const. Ltd v. Corona S. & Co. (2006) 11NWLR (pt.9912) p.365; Musa Sha (Jnr) & Anor v. Da Ray Kwan & 4 Ors (2000) 8NWLR (pt.670) p.685; A.P.G.A. & Anor v. Umewa & Ors (2011) LPELR - 426 (SC) and Atanda & Orsv. Akanji & Ors (1989) 2 N.S.C.C. p.511 at 537."Per TSAMMANI, J.C.A. (Pp. 6-7, Paras. C-A) - read incontext

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5. APPEAL - FRESH POINT(S) ON APPEAL: Whether a party can raise the defence of statute oflimitation as a fresh issue on appeal"Indeed, it is now settled law, that the issue of an action being statute barred is a substantialquestion of law that may affect the jurisdiction of the Court, and therefore can be raised for thefirst time on appeal with the leave of Court. This is in consonance with the settled law that, wherea party intends to raise a fresh issue on appeal, he has to seek and obtain leave of the appealCourt before the issue can be validly raised and argued. See Olagunju v. P.H.C.N. Plc (supra) atp.125 Paragraphs D - F; Ajala v. Okogbue (2011) 16 NWLR (pt.1272) p.62; Gabriel v. State (1989)(pt.122) p.457; Ukong v. Commissioner, Finance (2006) 19 NWLR (pt.1013) p.187; Dagaci of Derev. Dagaci of Ebwa (2006) 7 NWLR (pt.979) p.382 and M.L.G; Kwara State v. Oyebiyi (2006) 10NWLR (pt.988) p.320. This is based on the premise that, where the question involves substantialpoint of law, and it is apparent that it will not be necessary to open up further evidence whichcould affect the decision of the trial Court, the appeal Court will allow the question to be raisedand argued."Per TSAMMANI, J.C.A. (Pp. 44-45, Paras. B-B) - read in context

6. APPEAL - FRESH POINT(S) ON APPEAL: Whether a party can raise the defence of statute oflimitation as a fresh issue on appeal"As stated earlier, the issue of limitation of action is one of jurisdiction and therefore, where it israised on appeal, it would not be correct to assert, as done by the Respondents, that theDefendant has put up a case different from that presented in the trial Court. This is in view of thelaw that, an issue of jurisdiction can be raised at any stage of the trial, even for the first time onappeal." Per TSAMMANI, J.C.A. (Pp. 45-46, Paras. E-A) - read in context

7. CHIEFTAINCY MATTERS - COMMENCEMENT OF CHIEFTAINCY MATTER: How tocommence/institute a chieftaincy matter"In a Chieftaincy action where the right claimed is that of a Ruling family, the action must beinstituted by the Ruling family in a representative capacity. See Daramola v. A.G; Ondo State(supra); Otapo v. Sunmonu (1987) 2 NWLR (pt. 58) p. 587; Arowolo v. Akapo (2003) 8 NWLR(pt.823) p.451."Per TSAMMANI, J.C.A. (P. 27, Paras. B-C) - read in context

8. LIMITATION LAW - LIMITATION OF ACTION: Purpose of a statute of limitation"Now, the main purpose of limitation of action or limitation statute is to protect a Defendant frominjustice of having to face a stale claim. In such a situation, where a limitation statute applies, aPlaintiff who might otherwise have had a valid cause of action loses the right to enforce the causeof action or claim by judicial process. This is because the period stipulated by the limitationstatute for instituting such action has lapsed. A plea of limitation of statute is therefore a weaponof defence, and not attack. In other words, the limitation statutes, just like equitable doctrines oflaches, are designed to promote justice by preventing surprises by reviving a claim or cause ofaction that has been allowed to lapse. Thus, in the case of Sulgrave Holdings Inc. v. F.G.N. (2012)17 NWLR (pt.1329) p.309 at P.343 Paragraphs E - F, Fabiyi, JSC said:"It should be reiterated that a statute of limitation is a law that bars claims after a specifiedperiod. It is a statute which establishes a time limit for suing in a civil case based on the date theclaim accrued. The purpose of such a statute is to require diligent prosecution of known claimsthereby providing finality and predictability in legal affairs. It is also termed non claim statute. Thepurpose of limitations, like equitable doctrine of laches, in their conclusive effects are designed topromote justice by preventing surprises through the revival of claims that have been allowed toslumber."Per TSAMMANI, J.C.A. (Pp. 39-40, Paras. A-B ) - read in context

9. LIMITATION LAW - LIMITATION OF ACTION: Effect of a statute barred action"A claim that is statute barred has thus become an empty shell and of no utility value to theperson claiming it. A Plaintiff is therefore required to seek prompt remedy for any infringement ofhis rights in a Court of law within the time prescribed by the Law, and if he delays beyond theprescribed statutory period, his right of action or cause of action will become unenforceable. SeeHassan v. Aliyu (2010) 17 NWLR (pt.1223) p.547 at 623 Paragraphs D - H; Olagunju v. P.H.C.N. Plc(2011) 10 NWLR (pt.1254) p.113 at 133 Paragraphs F - H; Rabiu v. Adebajo (2012) 15 NWLR(pt.1322) p.125 and Anukwe v. Eze (2012) 11 NWLR (pt.1310) p.137."Per TSAMMANI, J.C.A. (P. 40,Paras. C-F) - read in context

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10. LIMITATION LAW - PLEA OF LIMITATION LAW: Whether plea of limitation equates with or issynonymous to jurisdiction"I wish to point out that, a defence based on statute of limitation is a point of law touching on thejurisdiction of a Court to adjudicate upon the Plaintiff's Claim before it. In other words, where aDefendant contends that an action is statute barred, he is by so doing raising a point of lawtouching on the jurisdiction of the Court to hear and determine on the matter, because when anaction is found to be statute barred the Court will have no jurisdiction to entertain it no matterhow attractive the case may be. Consequently, where the point raised succeeds, the right of thePlaintiff is extinguished leaving him with an empty and unenforceable cause of action."?Per TSAMMANI, J.C.A. (P. 41, Paras. B-E) - read in context

11. LIMITATION LAW - PLEA OF LIMITATION LAW: Whether the defence of statute of limitationmust be pleaded; reason for pleading same"Though an aspect of jurisdiction, the Civil Procedure Rules applicable to the various High Courtjurisdictions in this country require that a Defendant who intends to rely on or raise the defence oflimitation of statute must first of all specifically plead same. The rationale behind this requirementis that, it is a rule of pleadings that all facts which a Defendant wishes to rely on as his defencemust be pleaded so as to give the Plaintiff notice so as to avoid his being taken by surprise. SeeOrder 15 Rule 7(1) and (2) of the Ogun State High Court (Civil Procedure) Rules, 2008 whichstipulates that:"(15) Rule 7(1). All grounds of defence or reply which makes an action not maintainable or if notraised will take the opposite party by surprise or will raise issues of facts not arising out of thepreceding pleadings shall be specifically pleaded.(2). Where a party raises any ground which makes a transaction void or voidable or such mattersas fraud, Limitation Law, release, payment, performance, facts showing insufficiency in contract orillegality either by any enactment or by common law, he shall specifically plead same." Thisprovision and other provisions in pari materia to it, have received judicial interpretation by theSupreme Court and this Court in several cases, such as, Olagunju v. P.H.C.N. Plc (2011) 10 NWLR(pt.1254) p.113 at 124 Paragraphs F - G; Ketu v. Onikoro (1984) 10 S.C. p.265 at 267 - 268; Lanav. University of Ibadan (1991) 4 NWLR (pt.64) p.245 at 260 and Akuneziri v. Okenwa (2000) 4N.S.C.Q.R p.278. It therefore remains settled that, a party contending that an action is statutebarred must plead the specific Law that bars the action and go further to plead the incidents thatwould establish that the action is indeed statute barred in relation to that particular stature. Seealso Ojiogu v. Ojiogu (2010) 9 NWLR (pt.1198) p.1 and Oyebanji v. Lawanson (2008) 15 NWLR(pt.1109) p.122. Thus, in the case of Chime v. A.G; Federation (2008) All FWLR (pt. 439) p. 550 at563 Paragraphs A - B, it was that:"... it becomes clear that special defence such as Limitation Act or Law must be specifically andexpressly pleaded in the Statement of Defence, otherwise it cannot be considered by the trial orappeal Court. The rules are meant to be followed and their provisions binding on a party who isconducting a proceeding in Court."Per TSAMMANI, J.C.A. (Pp. 41-43, Paras. F-F) - read in context

12. LIMITATION LAW - LIMITATION OF ACTION: What the Court should do in considering whetheran action is statute barred"It is obvious that the issue of whether or not an action is caught by limitation of action or statuteis one that can be determined through the Statement of Claim alone. In that case, the Defendantrelying on it need not call or adduce evidence, if the facts needed to establish the defence can begleaned from or are contained in the case presented by the Plaintiff in the Statement of Claim.See Olagunju v. P.H.C.N. Plc (supra) at p.126 Paragraphs F.Per TSAMMANI, J.C.A. (P. 45, Paras. C-E)- read in context

13. LIMITATION LAW - LIMITATION PERIOD: Limitation period for bringing an action against apublic officer"The Limitation Law is the Public Officers Protection Law of Ogun State, which stipulate in Section2(a) thereof, that the limitation period shall be three months after the cause of action arose or theact complained against occurred. In other words, the action must be instituted within 3 monthsafter the cause of action accrued. See NEPA v. Olagunju (2005) 3 NWLR (pt.913) p.602; IbetoCement Co. Ltd v. A.G; Federation (2008) 1 NWLR (pt.1069) p.470 and Olagunju v. P.H.C.N. (supra)at p.125."Per TSAMMANI, J.C.A. (Pp. 52-53, Paras. F-C) - read in context

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14. PRACTICE AND PROCEDURE - WAIVER OF RIGHT: Whether a right of a public nature can bewaived"On the issue of waiver, the Supreme Court in the above cited case, stated that, the word used inSection 2(a) of the Public Officers Protection Act (which is in pari materia with Section 2(a) of thePublic Officers Protection Law of Ogun State), is "shall" and therefore connotes mandatoriness andleaves no room for discretion. That in the circumstances, a mandatory statutory provision cannotbe waived. In considering the issue, the Supreme cited and relied on its decision in Menakaya v.Menakaya (2001) 16 NWLR (pt.738) p.203 at 263 Paragraphs B - D, where it held that:"When therefore it is argued that a statutory provision has been waived, it has to be consideredwhether the statute confers purely private or individual rights which may be waived or whetherthe statutory provision confers rights of a public nature as a matter of public policy. If it is thelater, the provision of such statute cannot be waived as no one is permitted to contract out of orwaive a rule of public or constitutional policy. See A.G; Bendel State v. A.G. of the Federation(1981) 10 SC.1 at 54; Ogbonna v. A.G. of Imo State (1992) 1 NWLR (pt.220) 647 at 696."It therefore means that the arguments of the Respondent on the issue of waiver go to no issue.Certainly, the protection provided under Section 2(a) of the Public Officers Protection Law is not aprivate right granted to such public officers but is enacted as a matter of public interest or policy.The Appellants cannot therefore be held to have waived the protection provided by Section 2(a) ofthe Law."Per TSAMMANI, J.C.A. (Pp. 50-51, Paras. C-D) - read in context

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15. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Effect of a court processsigned in the name of a law firm"Now, on the substantive issue, it is a requirement in most High Courts (Civil Procedure) Rules inNigeria, including that of the High Court of Ogun State that, an Originating Process shall beprepared by either the Claimant or his Legal Practitioner. See Order 6 Rule 1 of the Ogun StateHigh Court (Civil Procedure) Rules, 2008. The problem the Courts have had to grapple with havealways been whether a process purported to have been prepared or signed by a LegalPractitioner, was indeed prepared or signed by a Legal Practitioner known to law in Nigeria. Inresolving the issue, the Supreme has laid emphasis on Sections 2(1) and 24 of the LegalPractitioners Act, Cap. 207, Laws of the Federation of Nigeria, 1990. It has been held that by acombined reading of Sections 2(1)and 24 of the Legal Practitioners Act (supra), a person is only entitled to practice law in Nigeria asa Barrister and Solicitor, otherwise known as a Legal Practitioner, if and only if, his name has beenenrolled in the Register of Legal Practitioners in the Supreme Court of Nigeria. Such a person mustnecessarily be a natural person and must be registered on the roll under a given name. It is bythat name that such a person can be identified or recognized as a Legal Practitioner. It thereforemeans that such Legal Practitioner must prepare or sign all Court processes under that name, andno other. However, Legal Practitioners in Nigeria were in the habit of preparing Court processes intheir Firm names; and that was the position when the Supreme Court in the case of Okafor v.Nweke (2007) 10 NWLR (pt.1043) p.521 pronounced on the competence of Court processes signedin the name of a Firm of Legal practitioners. In the Okafor v. Nweke case (supra), in upholding theobjection on the competence of the Motion on Notice, Notice of Cross-Appeal and Applicants' briefin respect of the application, all of which were signed in the name of J.H.C. Okolo, SAN & Co., theSupreme Court cited Sections 2(1) and 24 of the Legal Practitioners Act (supra) to hold that:"The combined effect of the above provisions is that for a person to be qualified to practice as aLegal Practitioner he must have his name in the roll otherwise he cannot engage in any form ofLegal Practice in Nigeria." The significance or impact of that decision is that, it determined that allCourt processes prepared and/or signed by a Legal Practitioner must be so prepared in the nameof such Legal practitioner. A Firm of Legal Practitioners is not the name of a Legal Practitionerenrolled to practice as a Barrister and Solicitor in the Register of Legal Practitioners in theSupreme Court of Nigeria. Consequently, any Court process prepared and/or signed in the name ofa Firm of Legal Practitioners is incompetent, null and void. In the case of F.B.N. Plc v. Maiwada(2013) 5 NWLR (pt. 1348) p. 444, a full panel of the Supreme Court was invited to review anddepart from the decision of Okafor v. Nweke (supra). The Supreme Court, after taking argumentsof counsel and numerous amici curiae invited to address the Court on the issue, refused to departfrom Okafor v. Nweke (supra) and reiterated that the position in that case is good law. Specifically,Fabiyi, JSC who read the lead judgment said:"The provisions of Sections 2(1) and 24 of the Act... remain the law and shall continue to be sountil when same is repealed or amended. For now, I see nothing amiss about the law.The decision in Okafor v. Nweke was based on a substantive law, an Act of the National Assemblyi.e. the Legal Practitioners Act. It is not based on Rules of Court. According to Oguntade, JSC atpage 534 of the judgment in Okafor v. Nweke; "It would have been quite another matter if what isin issue is a mere compliance with Court Rules." Let me say it bluntly that where the provisions ofan Act like the Legal Practitioners Act is at play, as herein, provisions of Rule of Court which aresubject to the law must take the side line." The above cited authorities therefore represent the lawon the issue in this country. Those decisions have been followed and applied by this Court andindeed the Supreme Court in a plethora of cases. For example, see N.D.I.C. v. Lagos State Gov't &Ors (2009) LPELR - 4966 (CA); Unity Bank Plc v. Denclag Limited & Anor (2012) LPELR - 9729 (SC);Amidu Ishola & Ors v. Ibadan North-East Local Gov't & Anor (2013) LPELR - 20477 (CA); HassanGarba v. Musa Lawan Birniwa & Anor (2013) LPELR - 21478 (CA) and Alhaji Tajudeen BabatundeHamzat & Anor v. Alhaji Saliu Ireyemi Sanni & Ors (2015) LPELR - 24302 (SC)."Per TSAMMANI,J.C.A. (Pp. 63-67, Paras. C-B) - read in context

16. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Whether the issue ofsigning of Court process is an issue of substantive law"Learned Counsel for the 7th Respondent raised the issue of interest of justice. In the case ofF.B.N. v. Maiwada (supra), the Supreme Court pointed out clearly that the issue is one ofcompliance with the provisions of substantive law; the Legal Practitioners Act; and not one ofmere practice and procedure. That in the circumstances, the notion of substantial justice orinterest of justice cannot be relevant. See also Braithwaite v. Skye Bank (2012) 12 S.C. (pt.1) p.13."Per TSAMMANI, J.C.A. (Pp. 68-69, Paras. F-B) - read in context

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17. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Effect of a court processsigned in the name of a law firm"The Writ of Summons which is the originating process in this case was prepared by A.F.Okunnuga & Co.; a law firm not a person known under the Legal Practitioners Act as a legalpractitioner. The originating process is therefore incompetent. The statement of claim predicatedon such incompetent originating process and the entire proceedings are null and void. See thecase of Okafor v. Nweke (2007) 10 NWLR (Pt.1043) page 521."Per FASANMI, J.C.A. (P. 70, Paras. D-F) - read in context

18. PUBLIC OFFICER - PUBLIC OFFICERS PROTECTION ACT: Application of the Public OfficerProtection Act"There is no doubt that Public Officers Protection Laws are meant to protect public officers fromcivil liability for any wrongdoing that may occasion damage to any citizen, if such action is notinstituted within three months after the cause of action accrued. In the case of Hassan v. Aliyu(supra) at p.621 Paragraphs E, Adekeye, JSC said that:"In effect, the Public Officers Protection Act is designed to protect a public officer who acts in goodfaith and does not apply to acts done in abuse of office and with no semblance of legaljustification. On the purport and scope of Section 2(a) of the Public Officers Protection Act, it iswell established that the Act gives full protection or cover to all public officers or persons engagedin the execution of public duties who at all material times acted within the confines of their publicauthority...."It is obvious therefore that the statute is not meant for the protection of all persons. As the titleimplies, where a person is not a public officer, he is not entitled to claim any protection under theLaw. Accordingly, for any person to claim protection under the Public Officers Protection Act orLaw, he must satisfy the following conditions:(a) That he is a public officer; and(b) That the act done by him was done in pursuance or execution or intended execution of a lawor public duty.Accordingly, where any of the two conditions is not satisfied, such a person is not entitled toprotection under the Public Officers Protection Law or Act, as the case may be. It is thereforeobvious that the Public Officers Protection Law can only be invoked in favour of public officers orpersons. In other words, it is only public officers for whose benefit the Law is made that can claimthe benefit of that protection. That being so, such a person who is sued for an act committed byhim in the execution of a public duty or law, may decide to waive the benefit of the protectionguaranteed to him under the Law or Act. What the Law provides is a defence against civil liabilityor action and therefore it may appear that only the person for whose benefit the law is made, thatcan raise the defence. However, in the case of Alhaji (Dr.) Ado Ibrahim v. Alhaji Maigida U. Lawal &Ors (2015) LPELR - 247 (SC), the Supreme Court, per Ngwuta, JSC said: "Learned Counsel for the1st - 4th Respondents expressed the view that only the public officers (5th and 6th Respondents)for whom the protection offered by the Act is made can raise the issue and a non-public officercannot raise and/or rely on same. With respect to the learned counsel, I think this argument in thisrespect is a fallacy borne out of a skewed construction of the title of the Act, "Public OfficersProtection Act" without reference to the provision therein. See the judgment delivered by thisCourt on 6/3/2015 in SC. 85/2014, Timpre Sylva v. INEC & Ors (unreported as of now). Theexpression in the Section reproduced... "against any person for any act..." demonstrates thefallacy in the contention that the protection under the Act is restricted to the public officer whoseact or neglect gave rise to the suit. In my view, a Defendant sued alone or together with the publicofficer whose act or omission is questioned is entitled to raise and rely on the defence under theAct irrespective of its title. However, a non-public officer raising the defence in a purported statusof a public officer would lose not because he is not entitled to it but because he does not possessthe status in which he raised the defence. See Rufus Alli Momoh v. Afolabi Okewale & Anor (1977)6 S.C. 81 at 92." It therefore means that, a non-public officer who is sued jointly or together with apublic officer whose conduct is questioned, is also entitled to raise or rely on the defence providedby the Public Officers Protection Law." Per TSAMMANI, J.C.A. (Pp. 46-50, Paras. E-B) - read incontext

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HARUNA SIMON TSAMMANI, J.C.A. (Delivering the

Leading Judgment): This appeal is against the judgment

of the Ogun State High Court sitting at Sagamu in the

Sagamu Judicial Division, delivered by O. O. Majekodunmi,

J on the 19th day of January, 2012 in Suit No.

HCS/22/2008.

Briefly, the facts of this case are that, on the 9th day of

April, 2006, Oba O. E. Ogunsowo, the Ewusi of Makun-

Sagamu died. He was from the Inonuwa Ruling House of

the Chieftaincy Ruling Houses. Consequent thereupon, the

3rd Respondent; the Secretary Sagamu Local Government

Council, pursuant to the powers conferred on him by

Section 15(1) of the Chiefs Law Cap.20, Laws of Ogun

State, issued a Public Notice dated the 19/10/2006,

informing the general public of the vacancy in the

Chieftaincy Stool of Ewusi of Makun. The head of the

Muleruwa/Orungba Ruling House whose turn it was to

nominate and select a candidate for appointment as the

Ewusi of Makun, was then enjoined to convene a meeting of

the said Ruling House for that purpose. The meeting was

said to have been convened during which some names,

including that of the 1st Appellant and the 2nd Respondent

were nominated

1

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and sent to the Kingmakers for selection of the person or

candidate for appointment as the Ewusi of Makun. The

Kingmakers, in the exercise of their powers, selected the

1st Appellant and sent his name to the Executive Council of

Ogun State who had the powers to appoint the Ewusi. The

1st Appellant was then appointed and installed as the

Ewusi of Makun.

The Head of the Orungba section of the Muleruwa/Orungba

Ruling family who is now deceased, the 1st and 2nd

Respondents in this appeal were dissatisfied with the

nomination, selection and appointment of the 1st Appellant

as the Ewusi of Makun, and therefore took out a Writ of

Summons which was accompanied by a Statement of Claim,

seeking the trial Court to grant them the following reliefs:

1. A declaration that the nomination of the 1st Defendant as

EWUSI of MAKUN at the meetings of MULERUWA-

ORUNGBA RULING HOUSE held on the 27th October,

2006 and 19th December, 2006 were irregular, null and

void and of no effect.

2. A declaration that the meeting of 5th – 12th Defendants

held on the 11th day of January, 2007 for the purpose of

selecting candidates to the Stool of Ewusi of Makun

wherein the

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1st Defendant was purportedly selected as EWUSI of

MAKUN was irregular, illegal, null and void and of no

effect.

3. A declaration that the appointment of the 1st Defendant

by the 3rd Defendant and the subsequent installation of the

1st Defendant as EWUSI of MAKUN is irregular, illegal,

null and void and of no effect.

4. An order setting aside the nomination, selection,

appointment and installation of the 1st Defendant as the

EWUSI of MAKUN.

5. An Order of perpetual injunction restraining the 1st

Defendant from parading himself or holding himself out as

the EWUSI of MAKUN.

6. An Order restraining the 2nd and 3rd Defendants, their

agents and servants from recognizing and/or dealing with

the 1st Defendant as the EWUSI of MAKUN.

7. An Order directing the 2nd Defendant to begin afresh

the process of nomination, selection and appointment of

candidate(s) for the Stool of EWUSI of MAKUN.

At the trial, the trial Court took evidence from the

witnesses and admitted several exhibits which were

tendered by the respective parties. Thus, in a considered

judgment delivered on the 19/01/2012, the learned trial

Judge gave judgment for the

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Plaintiffs, now 1st and 2nd Respondents, by granting all the

reliefs sought by them. The Appellants on record are

aggrieved by that decision and have now initiated this

appeal.

The Original Notice of Appeal which is at pages 484 – 492

of the Record of Appeal was dated and filed on the

27/2/2012. However, by a Motion on Notice dated and filed

the 27/11/2012, the Appellants sought for and were granted

leave to raise and argue fresh issues of law; and such leave

was granted on the 29/11/2012. The fresh issues are as

contained in Grounds 1 and 2 of the Original Notice of

Appeal filed on the 27/2/2012. Furthermore, on the

10/10/13, this Court granted the Appellants leave to file

Additional Ground of Appeal. The Additional Ground of

Appeal filed on the 01/3/2013 was deemed filed on the

10/10/2013, consisting of only one Ground of Appeal. The

Record of this Court show that the Appellants filed an

Amended Notice of Appeal which was deemed filed on the

27/5/2015. On the date of hearing of this appeal, learned

counsel for the Appellants, Mrs. Titilola Akinlawun, SAN

withdrew the Notice of Appeal filed on the 03/2/2012 and

same was struck out. This appeal was

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therefore heard on the Amended Notice of Appeal filed on

the 4/3/2015 but deemed filed on the 27/5/2015. In

compliance with the Rules of this Court, the Appellant, 1st,

2nd, 6th and 7th Respondents filed Briefs of Arguments.

The 3rd, 4th and 5th Respondents did not file any Brief of

Arguments, thus, on the 27/5/2015, this Court set down this

appeal for hearing without the 3rd, 4th and 5th

Respondents’ Brief of Arguments. The Appellants’ Brief of

Arguments is the Amended Appellants’ Brief of arguments

dated and filed on the 21/10/2013. Therein, six(6) issues

were distilled for determination as follows:

(a) Was the principal claim in the action barred by

Limitation?

(Ground 1).

(b) Did the Claimants have locus standi to prosecute the

action?

(Ground 2).

(c) Was the Kingmakers meeting of 11th January, 2007

validly held and were the Resolutions duly adopted?

(d) Who had the burden of proving that the 1st Appellant

was a member of the Muleruwa-Orungba Ruling House and

was it sufficiently discharged?

(Grounds 6 and 7).

(e) Was there admissible evidence of non-compliance with

the law and has this occasioned

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a miscarriage of justice?

(Grounds 3 and 8).

(f) Was the entire action of the Claimants incompetent and

void ab initio in view of the issuance of the Writ of

Summons by A. F. Okunnuga &Co.

The 1st and 2nd Respondents’ Brief of Arguments settled

by S. O. Kuyoro; Esq is undated but filed on the 22/11/13

and deemed filed on the 27/5/2015. Therein, and contrary

to the Rules distilled seven (7) issues for determination,

which is one more than the issues raised by the Appellants.

It is the law that a Respondent who has not filed a

Respondents’ Notice is not at liberty to formulate more

issues than that of the Appellant. Of course, he may

formulate his own issues so long as they can be rooted on

the Grounds of Appeal filed, but such issues should be

either an adoption of the issues raised by the Appellant or a

reformulation of same with a slant which the Respondent

may find suitable. The bottom line is that they should not

depart from the substance of the issues formulated by the

Appellant. See Emespo J. Const. Ltd v. Corona S. & Co.

(2006) 11 NWLR (pt.9912) p.365; Musa Sha (Jnr) &

Anor v. Da Ray Kwan & 4 Ors (2000) 8

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NWLR (pt.670) p.685; A.P.G.A. & Anor v. Umewa &

Ors (2011) LPELR – 426 (SC) and Atanda & Ors v.

Akanji & Ors (1989) 2 N.S.C.C. p.511 at 537. In that

respect, the 1st and 2nd Respondents having formulated

more issues than that of the Appellant, their issues are

hereby discountenanced.

The 6th Respondent’s Brief of Arguments was dated and

filed on the 22/11/2013 and deemed filed on the 27/5/2015.

At Paragraphs 3.1 of the said brief, five issues were

formulated for determination as follows:

(i) Whether the 1st and 2nd Respondents’ claims against

the Appellants and the 3rd – 7th Respondents is caught by

limitation law and if yes, whether the defence of limitation

is available to the Appellants on appeal having regards to

the state of pleadings.

(ii) Whether the 1st and 2nd Respondents have locus

standi to commence the suit at the High Court.

(iii) Whether the learned trial Judge was correct in treating

the Statement of Defence of the 13th Defendant (now 7th

Respondent) as an admission and a life process.

(iv) Whether the learned trial Judge was correct in granting

all the prayers sought by the 1st

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and 2nd Respondents having regards to the state of

pleadings, evidence and law.

(v) Whether the entire proceedings at the High Court are a

nullity.

I wish to note that learned counsel for the 6th Respondent

did not indicate the Grounds from which those issues are

distilled.

The 7th Respondent also filed an Amended Brief of

Arguments. It is dated and filed on the 23/9/16. Therein, six

(6) issues were formulated for determination, as follows:

1. Whether the principal claims in the suit is (sic) barred by

statute of limitation?

(Ground 1).

2. Whether the 1st and 2nd Respondents had the locus

standi to commence the suit at the lower Court?

(Ground 2).

3. Whether the Kingmakers’ meeting of 11th January, 2007

was validly held and the resolutions reached therein duly

adopted? (Grounds 4 and 5).

4. Whether there was admissible evidence of non-

compliance with the Law and whether same has occasioned

a grave miscarriage of justice?

(Grounds 3 and 8).

5. Whether the 1st and 2nd Respondents sufficiently

discharged the burden of proving that the 1st Appellant

was not a member of the Muleruwa/Orungba Ruling

House?

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(Grounds 6 and 7).

6. Whether the action of the Respondents (Claimants at the

Court below) is incompetent, the Writ of Summons,

Statement of Claimant (sic) having been duly issued and

signed by a Legal Practitioner within the meaning of

Sections 2(1), 23, 24 of the Legal Practitioners Act (LPA),

Cap.11, Laws of the Federation of Nigeria, 2004. (Ground

10).

The Appellants then filed an Appellants’ Amended Joint

Reply Brief of Arguments to the respective Briefs of the 1st

& 2nd, 6th and 7th respondents. It was dated and filed on

the 05/10/2016.

As indicated earlier, I intend to determine this appeal on

the issues formulated for determination by the Appellants.

Considering that issues 1, 2 and 3 have the effect of

terminating this appeal in limine, I intend to resolve same

first. I shall proceed from issue 2, 1 and 6 in that order

before returning to issues 3, 4 and 5 respectively if need

be.

Before I proceed, I must remind myself that the 7th

Respondent had given notice of and argued a Preliminary

Objection at pages (i) – (iii) of the 7th Respondent’s

Amended Brief of Arguments. By the objection, the 7th

Respondent had

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contended that this Appeal is incompetent and should be

struck out on the Grounds that:

(i) Sequel to the Order of this Honourable Court dated

10/10/2013 permitting the Appellant to file Additional

Ground of Appeal contained in the Original Notice of

Appeal, the Appellant failed, refused and neglected to file

an Amended Notice of Appeal incorporating the Additional

Ground of Appeal.

(ii) Grounds of Appeal do not exist independent of Notice of

Appeal.

(iii) The effect of the Order of 10/10/2013 is to render the

Original Notice of Appeal extinct and inoperative.

(iv) This appeal not being initiated by a valid Notice of

Appeal is fundamentally defective and incompetent.

Arguing the Preliminary Objection, learned Counsel for the

7th Respondent submitted that when a valid Notice of

Appeal is amended, as in the instant case, an Amended

Notice of Appeal ought to be filed. That, on the 10/10/13,

the Appellant was granted leave to file an Additional

Ground of Appeal, and that from that 10/10/13, the Original

Notice of Appeal became extinct. The case of Afolabi v.

Mudashiru (2010) 3 NWLR (pt.1118) p.336 was cited

in support. The case of Ravih

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Abdul v. UBN Plc (2011) All FWLR (pt.557) p.765 at

774 – 775 was further cited to contend that, failure of the

Appellant to incorporate the Additional Ground in an

Amended Notice of Appeal has rendered the Appeal

incompetent and therefore liable to be struck out. We were

accordingly urged to strike out this appeal.

Learned Counsel for the Appellants responded to the

Preliminary Objection in Paragraphs 2.1 – 2.17 of the

Appellants’ Amended Joint Reply Brief of arguments.

Therein, learned counsel (silk) for the Appellants contended

that, the Appellants Motion for leave to file Additional

Grounds of Appeal was predicated on Order 6 Rule 4 of the

Court of Appeal Rules, 2011. That, the impact of the said

Order 6 Rule 4 (supra) is that, a Ground(s) of Appeal can

actually exist outside a Notice of Appeal; and that the

Appellant had complied with Order 6 Rule 4 of the Court of

Appeal Rules (supra) so as to be heard on those Grounds.

Furthermore, that in granting the application for leave to

file and argue the Additional Grounds of Appeal, this Court

deemed the Additional Ground of Appeal already filed on

the 7/3/13 as properly filed and served.

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It was thus submitted that the cases of Afolabi v.

Mudashiru (supra) and Ravih Abdul v. UBN Plc

(supra) are distinguishable from the facts of this case. We

were accordingly urged to dismiss the Preliminary

Objection as lacking in merit.

In an effort to resolve the issue raised by the Preliminary

Objection, I have endeavoured to peruse the record of this

Court. In the case file, I find that by a Motion dated and

filed on the 7/3/2013, the Appellants had sought the leave

of this Court to file Additional Grounds of Appeal. The

Additional Grounds of Appeal which had been filed along

with the Motion was deemed filed and served, the same

10/10/2013 the Motion was granted. In granting the

application, this Court also granted the Appellants leave to

amend their Brief of Arguments which had been filed on

the 11/1/2013 so as to incorporate arguments on the

Additional Ground Appeal. When the Motion was granted,

there was no prayer to amend the Original Notice of Appeal

and no order to so amend was made. However, on the

4/3/2015, the Appellants filed a Motion seeking to amend

the Notice of Appeal and same was granted on the

27/5/2015. Consequently, the Amended

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Notice of Appeal which had been filed along with the

Motion on the 4/2/2015 was deemed filed and served on the

27/5/2015. The amendment to the Notice of Appeal,

deemed filed on the 10/10/2013, is Ground 10 in the

Amended Notice of Appeal.

It would be seen therefore that the foundation of the 7th

Respondent’s Preliminary Objection has been dismantled,

as it is apparent that, an Amended Notice of Appeal

incorporating the Additional Ground of Appeal had been

filed on the 4/2/2015 and deemed properly filed and served

on the 27/5/2015. When the Motion was granted to amend,

there is no evidence on the record, that the 7th Respondent

nor any of the Respondents raised any objection. This

objection therefore lacks merit and is hereby dismissed.

I now return to the main appeal. As indicated earlier, I shall

begin with issue two (2). On this issue, learned counsel for

the Appellant contended that the 1st and 2nd Respondents

who presented themselves as initiating the action as

representatives of the Orungba section of the

Muleruwa/Orungba Ruling House, lacked the locus standi

to maintain the action for the entire Muleruwa/Orungba

Ruling House. That the

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right to the Chieftaincy Stool of Ewusi of Makun is vested

in the Muleruwa-Orungba Ruling House, which consists of

two families, to wit: Muleruwa and Orungba; and therefore

only one of the two branches cannot institute the action

since the interest of only one branch is not equivalent to

the interest of the whole Ruling House. The cases of

Ekpere v. Aforije (1972) All N.L.R. p.224 and Oloriode

v. Oyebi (1984) 15 N.S.C.C. p.286 at 294 were then

cited in support.

It was further submitted that, the right to nominate a

candidate or candidates for the Stool of Ewusi of Makun

does not reside with the Orungba branch alone, but jointly

with the Muleruwa branch of the Muleruwa/Orungba

Ruling House as a whole. That in such a circumstance, it is

only the Muleruwa/Orungba Ruling House as a body that

would have the locus to challenge the nomination and

appointment of the 1st Appellant. The case of Adefilu v.

Oyesile (1989) 5 NWLR (pt.122) p.377 was cited in

support, and to further urge us to hold that the 1st and 2nd

Respondents have no locus to institute the action.

In response, learned counsel for the 1st and 2nd

Respondents contended that, to determine the

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locus standi of a Claimant, the Court will look at the Writ

of Summons and Statement of Claim. The case of Agboola

v. Agbodemu (2010) All FWLR (pt.539) at p.1144

Paragraphs B – D per Sankey, JCA was cited in support.

That, a cursory look at the Writ of Summons and Statement

of Claim would show that the 1st and 2nd Respondents

sued for themselves and on behalf of the other members of

Orungba branch of the Muleruwa/Orungba Ruling House as

permitted by Order 4 Rule 2 and 13 Rule 12 of the Ogun

State High Court (Civil Procedure) Rules, 2008, while the

3rd Claimant (now 2nd Respondent) sued in his capacity as

a candidate who contested for the Stool of Ewusi of Makun.

That the 1st Claimant (now deceased) sued in his capacity

as the head of the Orungba branch of the said Ruling family

at that time, and therefore had the right to defend and

protect the interest of that branch of the family. The cases

of Adefulu v. Oyesile (1989) 5 NWLR (pt. 122) p. 377

at 396 Paragraphs E – F; Agboola v. Agbodemu

(supra) cited by learned counsel for the Appellants and

Paragraphs 1, 2, 6, 18, 19, 20, 21, 26 and 27 of the

Statement of Claim were referred to. It was accordingly

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submitted that the Orungba branch of the Ruling House

had the right to sue to prevent a non-member of that Ruling

House from being made King through that branch of the

family. We were urged to resolve the issue against the

Appellants.

The response of learned counsel for the 6th Respondent is

similar to that of the 1st and 2nd Respondents. It was

therefore submitted by learned counsel for the 6th

Respondent that, in Chieftaincy matters, a member or

members in a representative capacity has or have the

locus standi to protect the personal or collective rights of

the ruling house or family. Furthermore, that a contestant,

who is qualified to be nominated, selected and appointed

also has the locus standi to challenge the wrongful choice

of a person to the Chieftaincy. Section 6(6)(b) of the 1999

Constitution of the Federal Republic of Nigeria and the

case of Odeneye v. Efunnuga (1990) 7 NWLR (pt. 164)

p. 618 at 641 were referred to. Learned Counsel then

contended that, learned counsel for the Appellants over

looked the fact that there were two categories of Claimants

in the Court below; with the first category being the 1st

Respondent and the deceased head of

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the Orungba branch of the Muleruwa/Orungba Ruling

House; and the second category being the 2nd Respondent

as a candidate who contested for the Stool in dispute.

Learned Counsel for the 6th Respondent went on to submit

that the 1st Respondent on record and the deceased 1st

Claimant in the Court below had the locus standi to sue

for themselves and as representing the Orungba branch of

the Ruling family being the head and principal member of

that branch of the Ruling family, while the 2nd Respondent

on record, had the locus to sue as a candidate. That, in any

case, even if (but not conceding) the 1st Respondent does

not have the locus to sue, the 2nd Respondent could still

sustain the action. We were then urged to resolve that the

1st and 2nd Respondents have the locus standi to institute

the suit.

Learned Counsel for the 7th Respondent also argued along

the same line with the 1st and 2nd; and 6th Respondents.

He had argued that the issue of the locus standi did not

arise from the pleadings or the decision of the Court below.

Learned Counsel then cited the cases of Rockonoh v.

NITEL (2001) 7 S.C. (pt. 3) p. 154 at 164 and Jatua v.

Ahmed (2003) 1 S.C.

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(pt. 2) p. 118 at 123 to submit that, in the circumstances,

the Appellants can only raise and argue the issue of locus

standi with the leave of this Court first sought and

obtained. Learned Counsel however argued that, the

Claimants in the Court below had the necessary locus

standi to institute the action. He then referred to

Paragraphs 1 and 2 of the Statement of Claim, the case of

Emezi v. Osuagwu (2005) 2 S.C. (pt. 2) p. 128 at 139

and the book titled Obas and Chiefs Law in Nigeria by

Chief (Dr) V. A. Odunaiya (1st Ed) at pp.218 and 221 to

further submit that, in a Chieftaincy dispute or action, the

duty is cast on the Plaintiff to plead and lead evidence to

show that he has the locus standi. That, the Plaintiff need

to do more than relying on his membership of the

Chieftaincy, but must also show that:

(a) He belongs to the Ruling House.

(b) That it is the turn of that Ruling House to produce a

candidate or candidates to fill the vacancy.

(c) There is vacancy on the throne.

(d) He is an eligible candidate to the Stool; and

(e) He had taken part as a candidate for the Stool such as

by taking part in the nomination exercise.

The

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cases of Odeneye v. Efunuga (supra) and Eleso v.

Government of Ogun State & Ors (1990) 2 NWLR

(pt.133) p.420 at 444 were cited in support; and to

further submit that the 1st and 2nd Respondents have

established their locus standi to institute the action at the

Court below.

On the contention of learned counsel for the Appellants

that the Orungba family being just a branch of the

Muleruwa/Orungba Ruling family, the 1st and 2nd

Respondents have no locus to so institute the action,

learned counsel for the 7th Respondent cited the case of

Chief (Sir) Ebere & Ors v. Apostle Anyanwu & Ors

(2006) All FWLR (pt. 315) p. 131 at 150, to submit that,

once members of any community perceive any threat to

their legal rights, each member can sue to protect that

legal right. That what the 1st and 2nd Respondents needed

to show, which they did, is a threat to their legal right. We

were then urged to hold that the 1st and 2nd Respondents

have the locus standi to institute the suit.

Generally in law, the concept of locus standi relates to the

issue of justiciability. The term locus standi therefore

denotes the legal capacity to institute an action and be

heard

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in a Court of law. It also means title to sue, and also the

right of a party to appear and be heard on a question

before any Court or Tribunal. The law is that, to have locus

standi, the Claimant or Plaintiff must show that he has

sufficient legal interest in the subject matter. To establish

that he has sufficient legal interest, the Plaintiff must be

able to show:

(a) Whether he could have been joined as a party, either as

a Plaintiff or a Defendant in the suit; or

(b) Whether he will suffer some injury or hardship arising

from the litigation.

Once the party seeking the redress or remedy is able to

satisfy the Court that he has sufficient legal interest, he

must be heard, because in such a circumstance, he is

entitled to be heard. See Ojukwu v. Ojukwu (2008) 4

NWLR (pt.1078) p.435; Inakoju v. Adeleke (2007) 4

NWLR (pt.1025) p.423; Dr. Tosin Ajayi v. Princes

(Mrs) Olajumoke Adebiyi & Ors (2012) LPELR – 7811

(SC); and Isaac Jitte & Anor v. Dickson Okpulor

(2015) LPELR – 25983 (SC). See also Pam v.

Mohammed (2008) 16 NWLR (pt.1112) p.1.

In Chieftaincy matters, as in the instant case, it is not

enough for the Plaintiff

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to plead that he is a member of the family; but he must

state that he has an interest in the Chieftaincy title and

must also show how his interest in the Chieftaincy Stool

arose. It therefore means that, membership of a Chieftaincy

family is not enough because not all members of

Chieftaincy family are eligible for the Chieftaincy. See

Daniyan v. Iyagin (2002) 7 NWLR (pt. 766) p. 346 at

376; Daramola v. A.G. Ondo State (2000) 7 NWLR (pt.

665) p. 440 at 476 per Onnoghen, JCA (as he then was).

Thus, in the case of Arowolo v. Olowookere (2011) 18

NWLR (pt. 1278) p. 280 at pp.310 – 311 Paragraphs G

– A, Muhammad, JSC stated the law as follows:

“In a legal tussle where the claim of the Plaintiff is on

Chieftaincy matter, the law is well settled that it is not

enough for the Plaintiff to state that he is a member of the

family; he has to state further that he has an interest in the

Chieftaincy title, and furthermore, he should state in his

Statement of Claim how his interest in the Chieftaincy title

arose. See Momoh v. Olotu (1970) 1 All N.L.R. 121 at

127. It is thus, the legal duty of the Plaintiff to show to the

Court, through his pleadings and

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evidence, that he has the standing (locus standi) to

institute the action either for himself or as a representative

of his family, whose civil rights and obligations have been,

or are in danger of being violated or infringed. He also has

to show that he or the family he represents have a

justiciable dispute with the Defendant.”

From the above stated statement of the law as clearly

stated by the Supreme Court, it would be seen that a

Plaintiff in a Chieftaincy dispute or action may disclose his

locus to institute the action in any of two ways stated by

the Supreme Court in the case of Emezi v. Osuagwu

(2005) 12 NWLR (pt.939) p.340 at 359 Paragraphs G –

H. He may do that by:

(a) Showing in his Statement of Claim and leading evidence

to show that the right that is being asserted is that of his

family by reason of any hereditary interest. In such

situation, the action should be by the family through their

representative(s) and it must be clearly pleaded that it is

the civil right of the family that is being claimed or

pursued; and

(b) By the Plaintiff asserting his own right to the

Chieftaincy Stool, if he could show from the pleadings

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and evidence, if evidence has been led, the nature of his

interest and his entitlement to the Stool. In such a

situation, it would not be enough for him to merely plead

that he is a member of the family. He must go further to

plead that he had an interest in the Chieftaincy title and

how such interest arose.

See also Amusa Momoh & Anor v. Jimoh Olotu (1970)

1 All NLR. P.117 at 123; Eleso v. Government of Ogun

State (1990) 2 NWLR (pt.133) p.420; Adesanoye v.

Adewole (2006) 14 NWLR (pt.1000) p.242 and

Bamisike v. Osasuyi (2007) 9 NWLR (pt.1042) p.225.

It is the settled law that, to determine whether or not a

Plaintiff has the requisite locus standi to institute an

action, it is the Writ of Summons or Statement of Claim

that should be considered. In other words, in determining

the locus standi of a Plaintiff, the Court would scrutinize

the Statement of Claim. In the instant case, the Statement

of Claim discloses that, while the 1st Respondent on record

and the deceased 1st Respondent in the Court below sued

“for themselves and on behalf of Orungba branch of

MULERUWA/ORUNGBA Ruling House”, the 2nd

Respondent who was 3rd Plaintiff sued in

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his personal capacity. This is stated in Paragraphs 1 and 2

of the Statement of Claim where it was pleaded that:

1. The 1st and 2nd Plaintiffs are the accredited

representatives of Orungba branch of MULERUWA –

OGUNGBA RULING HOUSE whose turn it is to present

candidate(s) for the Stool of Ewusi of Makun in Sagamu

Local Government Area of Ogun State.

2. The 3rd Plaintiff is one of the qualified candidates to the

Stool of Ewusi of Makun nominated by Muleruwa –

Orungba family for the said Stool.

By the above pleadings therefore, it is clear that the 1st

Respondent sued in a representative capacity together with

the deceased 1st Plaintiff who was head of the Orungba

branch of Muleruwa/Orungba Ruling House. It is also clear

as pleaded in Paragraphs 2 and 16 of the Statement of

Claim that the 2nd Respondent was a candidate and was

duly nominated for the Stool of Ewusi of Makun during the

Muleruwa/Orungba Ruling family meeting. It is therefore

not in doubt that the 2nd Respondent has been able to

establish his locus standi to institute the action. He is not

only an eligible candidate for the Chieftaincy Stool, but was

also validly nominated

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as one of the candidates to be considered for appointment

together with the 1st Appellant and others. In such a

circumstance, it cannot be validly argued that he has no

interest in the subject matter of this action, which is the

Ewusi of Makun Chieftaincy Stool. It is thus my view that

he has sufficient interest, sufficient to confer on him the

locus standi to institute the action.

As for the deceased 1st Plaintiff and the 1st Respondent on

record, it is not in doubt that they instituted the action as

r e p r e s e n t a t i v e s o f O r u n g b a b r a n c h o f t h e

Muleruwa/Orungba Ruling family, whose turn it was to

produce the Ewusi of Makun. They had the interest of

ensuring that only a bonafide member of that Ruling House

is appointment to the throne of Ewusi of Makun. Certainly,

as contended by them, their family’s interest would be

affected if a person who is not a member of that family is

eventually appointed to occupy the Stool of Ewusi of

Makun.

It should be noted however, that learned counsel for the

Appellant had cited the case of Ekpere v. Aforije (1972)

All N.L.R. p.224 to argue that, the Ruling House consists

of two branches, to wit; Muleruwa and

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Orungba. That in that respect, the Orungba branch alone

lack the locus standi to institute the action. That, it is only

the whole or entirety of the Muleruwa/Orungba Ruling

House that could institute the action. I have carefully read

the case of Ekpere v. Aforije (supra) cited and relied

upon by learned counsel for the Appellants. I wish to point

out first of all that, the case of Ekpere v. Aforije (supra)

was a land dispute and not a Chieftaincy matter. In that

case, the Plaintiffs had sued “for themselves and on behalf

of the Mosogan Village Community of Jesse Clan”. The

cause of action was that, the Defendants acting for and on

behalf of the Jesse community purported to grant written

consent to assign the residue of certain parcel of land to

the 5th Defendant. One of the Plaintiffs Claims was for:-

“A declaration that the piece or parcel of land…. is the

exclusive landed property of Plaintiffs and not the entire

Jesse Clan Community.”

The Supreme Court in determining the propriety of the

action held that; the individual interests of separate

communities which together form a clan are not necessarily

the interests of

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the clan as such, and that where the representatives of one

of such communities for a declaration that the clan as such

has no interests in land in dispute, the action is not

properly constituted unless the clan itself other than the

Plaintiff community is made a Defendant through its

representative. In a Chieftaincy action where the right

claimed is that of a Ruling family, the action must be

instituted by the Ruling family in a representative capacity.

See Daramola v. A.G; Ondo State (supra); Otapo v.

Sunmonu (1987) 2 NWLR (pt. 58) p. 587; Arowolo v.

Akapo (2003) 8 NWLR (pt.823) p.451. In the instant

case, the deceased 1st Plaintiff and the 1st Respondent did

not sue as representative of the entire Muleruwa/Orungba

Ruling House but only as representatives of the Orungba

branch of the Ruling family. Incidentally, the Head of the

Muleruwa/Orungba Ruling House who should have the

capacity to institute the action on behalf of the Ruling

family was sued as head of that family which included the

Orungba branch of the family. It means that the Orungba

branch on behalf of which the Plaintiffs instituted the

action is also part of the Defendants in the action. That

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cannot be so as a person cannot be both a Plaintiff and a

Defendant. I therefore hold that, since it is the

Muleruwa/Orungba Ruling House, and not a part of it, that

had the right to produce a candidate for appointment as

Ewusi of Makun, the Orungba branch of the family alone

could not institute the action, unless they could show that

they had an interest peculiar to it in respect of the subject

mat te r o f the ac t i on , ou t s ide tha t o f en t i re

Muleruwa/Orungba Ruling House.

In the instant case, the 1st Respondent on record and the

deceased 1st Plaintiff, did not plead any special interest of

the Orungba branch of the Muleruwa/Orungba Ruling

House separate from that of the Ruling House as a whole. I

therefore hold that the 1st Respondent and the deceased

1st Plaintiff as representatives only of the Orungba branch

of the Ruling family had no locus standi to institute the

action. I however affirm that the 2nd Respondent as a

candidate for the Chieftaincy Stool, duly nominated for that

purpose, eminently had the locus standi to institute the

action. The action cannot however be struck out due to

misjoinder of the 1st and 2nd Plaintiffs as the 2nd

Respondent, (as

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3rd Plaintiff) alone could still sustain the action. On the

whole therefore, this issue must be resolved against the

Appellant.

On issue one (1), Learned Senior Counsel for the Appellants

contended that, the principal claim of the 1st and 2nd

Respondents is claim 3, and that by Section 2(a) of the

Public Officers Protection Law, any action against a Public

Officer acting ex-officio must be filed within three (3)

months, otherwise the right of action will stand extinct.

That the Law envisages that:

(i) The action must be commenced against any person for

an act done pursuant to any Law or public duty.

(ii) The suit must be commenced within 3 months next after

the act complained of.

The case of Ekeagu v. Aliri (1991) 3 NWLR (pt.197)

p.258 was cited in support. The case of Ibrahim v.

Judicial Service Committee, Kaduna State (1998) 4

NWLR (pt. 584) p.1 was also cited to further submit that,

the word “any person” is not limited to natural persons but

includes bodies or body of persons corporate or incorporate

as well as statutory bodies or persons, who are sued for

acts done by them in pursuance or execution of any Law or

public duty.

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Learned Counsel (silk) then submitted that, the Executive

Council of Ogun State (4th Respondent), is a person within

the scope of the provisions of Section 2(a) of the Public

Officers Protection Law of Ogun State. That in granting the

approval to the appointment of the 1st Appellant as the

Ewusi of Makun on the 16/2/2007, the 4th Respondent

acted in pursuance of Section 20(1) of the Chiefs Law of

Ogun State, which is a public duty.

Learned Counsel for the Appellant went on to submit that,

the action of the 1st and 2nd Respondents should have

been commenced or filed within 3 months from the

16/2/2007 when the 4th Respondent gave its approval to

the appointment of the 1st Appellant as the Ewusi of

Makun. That, the Writ of Summons and Statement of Claim

show that the action was filed on the 26/2/2008, which is a

period in excess of 12 months from the 16/2/2007 when the

cause of action arose. The cases of Ibrahim v. J.S.C,

Kaduna State (supra) and Egbe v. Yusuf (1992) NWLR

(pt.245) p.1 at 12 Paragraph E were then cited to submit

that, in view of the failure of the 1st and 2nd Respondents

to commence their action against the 4th Respondent until

after the

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expiration of the three (3) months as stipulated by the

Public Officers Protection Law (supra); their right has been

extinguished. That, if the right of action of the 1st and 2nd

Respondents against the 4th Respondent is extinguished

the approval of appointment and installation of the 1st

Appellant as Ewusi of Makun by the 4th Respondent cannot

be challenged. We were urged to resolve this issue in

favour of the Appellants.

In response, learned counsel for the 1st and 2nd

Respondents began his response by contending that, in law,

parties are bound by their pleadings and therefore, parties

are not allowed to make a case which is at variance with

their pleadings. The cases of Adeleke v. Iyanda (2001) 13

NWLR (pt.729) p.1 and Adeniran v. Alao (2001) 18

NWLR (pt.745) p.361 were cited in support. That, a

cursory look at the Amended Statement of defence would

show that the issue of jurisdiction of the Court based on

Statute of Limitation was never raised. That the issue

cannot therefore be raised for the first time on appeal.

Furthermore, the cases of F.C.D.A. v. Naibi (1990) 3

NWLR (pt.138) 138 at 281 Paragraphs F; Kano v.

Oyelakin (1993) 3 NWLR (pt.282) p.399

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at 409 Paragraphs D – F and N.I.I.A. v. Ayanfalu

(2007) 2 NWLR (pt.1018) p.246 at 263 Paragraphs D –

G, were also cited to submit that, where a Defendant relies

on a special defence, such special defence must be

specifically pleaded, and that since the Appellants did not

plead the Statute of Limitation same cannot be raised on

appeal.

Learned Counsel for the 1st and 2nd Respondents also

submitted that, the Public Officers Protection Law of Ogun

State is specifically designed for the protection of Public

Officers and that none of the Appellants is a Public Officer.

That, not being Public Officers cannot claim the benefit of

the Law. That, in any case, those who could benefit from

the Law did not raise the defence timeously and having not

raise same timeously, they are deemed to have waived the

protection provided by the Law. We were then urged to

resolve the issue against the Appellants.

On this issue, learned counsel for the 6th Respondent also

submitted that, though the 3rd, 4th and 5th Respondents

are protected from litigation by Section 2(a) of the Public

Officers Protection Law, Cap.106, Laws of Ogun State, for

them to claim benefit

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of the protection provided by the Law, they were obligated

to specifically plead the defence in their Statement of

Defence. The cases of Adekeye v. Adesina (2011) All

FWLR (pt.571) p.1510 at 1526 and 1529 and Ariolu v.

Ariolu (2011) All FWLR (pt.599) p.1152 and Order 15

Rule 7(1) and (2) of the Ogun State High Court (Civil

Procedure) Rules, 2008 were referred to. Cases such as

S.E.S. Ltd v. Maersk (Nig.) Ltd (2001) 17 NWLR (pt.

743) p. 517; Agric. Dev. Corp. v. Okedi (2004) 11

NWLR (pt. 884) p. 369 at 385; H.S. Eng & Co. Ltd v. S.

A. Yakubu (Nig.) Ltd (2003) 10 NWLR (pt. 829) p.505

at 5234 and Oyebamiji v. Lawanson (2000) 15 NWLR

(pt. 1109) p.122 were also cited to stress that, where a

Defendant relies on a special defence such as Limitation

Law, he must specifically plead the Limitation Law as a

defence.

Learned Counsel for the 6th Respondent also contended

that the defence of limitation is only available to a party

and that where such party refuses to raise it in his

pleadings, that defence is deemed to have been waived.

The cases of Araka v. Ejeagwu (2000) 15 NWLR (pt.

692) p.684 at 718; U.B.R.B.D.A. v. Alka (1988) 2

NWLR (pt. 537) p. 328 at 339 and

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F.R.I.N. v. Gold (2007) 11 NWLR (pt. 1044) p.1 at 29

were cited in support. That, the principles of waiver is

based on the premise that a person who has the benefit of a

Statute or Law, may himself elect not to take the benefit

due to him under the law. Learned Counsel then submitted

that the 3rd – 5th Respondents who could take the benefit

of the defence of Limitation guaranteed them under the

Public Officers Protection Law of Ogun State having not

raised the defence in the respective pleadings are deemed

to have waived the defence.

It is further submitted by learned counsel for the 6th

respondent that the Public Officers Protection law is

designed to protect public officers who act properly and

legally in the discharge of the duties and not for acts done

in bad faith, illegally, or in pursuance of their selfish

interests. The cases of Nwakwere v. Adewunmi (1996) 1

All N.L.R. p.129 at 134 and Accord Party v. Governor

of Kwara State (2011) All FWLR (pt. 555) p.220 at 281

Paragraphs F – H were cited in support. It was then

submitted that there is sufficient evidence on record

showing that the 3rd Respondent acted recklessly in the

performance of

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his duties. That, there is evidence on record that the said

3rd Respondent took over as Secretary of the Kingmakers

and made it impossible for the Kingmakers to generate any

minutes of their meeting. That, the 3rd Respondent

forwarded Exhibit “N” to the 4th Respondent without any

resolution by the Kingmakers as to the candidate selected

and to be forwarded to the 4th Respondent. We were then

urged to hold that the 3rd, 4th and 5th Respondents set out

to prosecute their private agenda, and therefore not

entitled to the benefit of the protection under the Public

Officers Protection Law of Ogun State.

Learned Counsel for the 7th Respondent argued along the

same line as the 1st, 2nd and 6th Respondents. He cited

the case of F.G.N. v. Zebra Energy Ltd (2002) FWLR

(pt.92) p.1749 at 1771 Paragraphs F – G, to also submit

that, the defence of Statute of Limitation is a special one,

which must be specifically pleaded. That the defence ought

to have been pleaded as required by Order 15 Rule 7 of the

Ogun State High Court (Civil Procedure) Rules, 2008. That

the Appellants did not specifically plead the issue or

defence under the Public Officers

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Protection Law of Ogun State. Learned Counsel then noted

that, though the Appellants were granted leave to argue

the point as a fresh issue of law, the leave so granted the

Appellants by this Court does not cure the fundamental

error by the Appellants in not raising the issue at the Court

of trial. The case of Adeosun v. Governor of Ekiti State

(2012) 1 S.C. (pt.1) p.180 at 214 was cited in support.

Relying on the above cited case, learned counsel then

contended that the 1st Appellant did not raise the defence

by his pleadings and evidence as required by Order 15 Rule

7 of the Ogun State High Court (Civil Procedure) Rules,

2008, and that there was no decision of the Court below on

it.

Learned Counsel for the 7th Respondent, like the 6th

Respondent, argued that the 4th Respondent did not carry

out its function in line with the dictates of the law, as to

entitle it to the protection under the Public Officers

Protection Law of Ogun State. He then cited the case of

Offoboche v. Ogoja Local Gov’t (2001) FWLR (pt.68)

p.1051 at 1067 Paragraphs C – F to further submit that,

the Public Officers Protection Law (supra), is designed to

protect the officer

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complained against who acts in good faith and not one who

abuses his office. We were accordingly urged to resolve this

issue against the Appellants.

Responding on points of law, Learned Senior Advocate for

the Appellants contended that all the authorities including

those cited by the Respondents are agreed that the only

time an issue of this sort can be raised at the Appellate

Court, is where leave of the Court has been obtained. That

even in the case of Agric. Dev. Corp. v. Okedi (supra)

cited by learned counsel for the 6th Respondent, the Court

observed that “no application has been made for leave to

raise it for the first time” before it. That, the above

observation of the Court means that such issues not

expressly raised in the pleadings at the trial Court can be

raised for the first time on appeal where the leave of Court

has been sought and obtained. That in Agboola v. U.B.A.

Plc (supra) cited by the 7th Respondent, the Supreme

Court stated that the fresh issues raised before it was not

done with leave of Court. Learned Senior Advocate then

submitted that, on the 27/11/2012, the Appellant filed an

application to argue fresh issue before

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the Court, and which application was granted on the

29/11/2012 without any objection from any of the

Respondents. That, having obtained the leave of this Court

to raise and argue the point as a fresh issue on appeal, the

issue has been validly raised and argued.

Learned Senior Advocate for the Appellants also contended

that the case of Adeosun v. Gov. of Ekiti State (supra)

cited by learned counsel for the 7th Respondent is also not

helpful. That the complaint at the Supreme Court in that

case was that the Cross-Appellant set up a completely

different or opposite case on appeal which leave granted

could not cure. That, in the instant case, the issue borders

on jurisdiction which can be raised at any time including

for the first time on appeal. The cases of Elabanjo v.

Dawodu (2006) 15 N.W.L.R. (pt.1001) p.76 and

Ogboru v. S.P.D.C. (Nig) Ltd (2005) 17 NWLR (pt.955)

p.596 were cited in support. It was then contended that

the 1st and 2nd Respondents being aware of the purported

selfish acts of the 3rd Respondent and the subsequent

affirmation by the 4th Respondent, should have known that

they had only three (3) months to challenge the decision of

the 4th

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Respondent. We were then urged to hold that the

Appellants are competent to raised this issue which borders

on the jurisdiction of the Court.

Now, the main purpose of limitation of action or limitation

statute is to protect a Defendant from injustice of having to

face a stale claim. In such a situation, where a limitation

statute applies, a Plaintiff who might otherwise have had a

valid cause of action loses the right to enforce the cause of

action or claim by judicial process. This is because the

period stipulated by the limitation statute for instituting

such action has lapsed. A plea of limitation of statute is

therefore a weapon of defence, and not attack. In other

words, the limitation statutes, just like equitable doctrines

of laches, are designed to promote justice by preventing

surprises by reviving a claim or cause of action that has

been allowed to lapse. Thus, in the case of Sulgrave

Holdings Inc. v. F.G.N. (2012) 17 NWLR (pt.1329)

p.309 at P.343 Paragraphs E – F, Fabiyi, JSC said:

“It should be reiterated that a statute of limitation is a law

that bars claims after a specified period. It is a statute

which establishes a time

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limit for suing in a civil case based on the date the claim

accrued. The purpose of such a statute is to require diligent

prosecution of known claims thereby providing finality and

predictability in legal affairs. It is also termed non claim

statute. The purpose of limitations, like equitable doctrine

of laches, in their conclusive effects are designed to

promote justice by preventing surprises through the revival

of claims that have been allowed to slumber.”

A claim that is statute barred has thus become an empty

shell and of no utility value to the person claiming it. A

Plaintiff is therefore required to seek prompt remedy for

any infringement of his rights in a Court of law within the

time prescribed by the Law, and if he delays beyond the

prescribed statutory period, his right of action or cause of

action will become unenforceable. See Hassan v. Aliyu

(2010) 17 NWLR (pt.1223) p.547 at 623 Paragraphs D

– H; Olagunju v. P.H.C.N. Plc (2011) 10 NWLR

(pt.1254) p.113 at 133 Paragraphs F – H; Rabiu v.

Adebajo (2012) 15 NWLR (pt.1322) p.125 and Anukwe

v. Eze (2012) 11 NWLR (pt.1310) p.137.

Learned Counsel for the Respondents however

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contend that before the Appellants could claim and raise

the defence of limitation of action, they must have

specifically pleaded same by their Statement(s) of Defence.

That in the instant case, such defence was never pleaded

by the Appellants and same cannot be raised at this appeal

stage. I wish to point out that, a defence based on statute of

limitation is a point of law touching on the jurisdiction of a

Court to adjudicate upon the Plaintiff’s Claim before it. In

other words, where a Defendant contends that an action is

statute barred, he is by so doing raising a point of law

touching on the jurisdiction of the Court to hear and

determine on the matter, because when an action is found

to be statute barred the Court will have no jurisdiction to

entertain it no matter how attractive the case may be.

Consequently, where the point raised succeeds, the right of

the Plaintiff is extinguished leaving him with an empty and

unenforceable cause of action.

Though an aspect of jurisdiction, the Civil Procedure Rules

applicable to the various High Court jurisdictions in this

country require that a Defendant who intends to rely on or

raise the defence of

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limitation of statute must first of all specifically plead same.

The rationale behind this requirement is that, it is a rule of

pleadings that all facts which a Defendant wishes to rely on

as his defence must be pleaded so as to give the Plaintiff

notice so as to avoid his being taken by surprise. See Order

15 Rule 7(1) and (2) of the Ogun State High Court (Civil

Procedure) Rules, 2008 which stipulates that:

“(15) Rule 7(1). All grounds of defence or reply which

makes an action not maintainable or if not raised will take

the opposite party by surprise or will raise issues of facts

not arising out of the preceding pleadings shall be

specifically pleaded.

(2). Where a party raises any ground which makes a

transaction void or voidable or such matters as fraud,

Limitation Law, release, payment, performance, facts

showing insufficiency in contract or illegality either by any

enactment or by common law, he shall specifically plead

same.”

This provision and other provisions in pari materia to it,

have received judicial interpretation by the Supreme Court

and this Court in several cases, such as, Olagunju v.

P.H.C.N. Plc (2011) 10 NWLR

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(pt.1254) p.113 at 124 Paragraphs F – G; Ketu v.

Onikoro (1984) 10 S.C. p.265 at 267 – 268; Lana v.

University of Ibadan (1991) 4 NWLR (pt.64) p.245 at

260 and Akuneziri v. Okenwa (2000) 4 N.S.C.Q.R

p.278. It therefore remains settled that, a party contending

that an action is statute barred must plead the specific Law

that bars the action and go further to plead the incidents

that would establish that the action is indeed statute barred

in relation to that particular stature. See also Ojiogu v.

Ojiogu (2010) 9 NWLR (pt.1198) p.1 and Oyebanji v.

Lawanson (2008) 15 NWLR (pt.1109) p.122. Thus, in

the case of Chime v. A.G; Federation (2008) All FWLR

(pt. 439) p. 550 at 563 Paragraphs A – B, it was that:

“… it becomes clear that special defence such as Limitation

Act or Law must be specifically and expressly pleaded in

the Statement of Defence, otherwise it cannot be

considered by the trial or appeal Court. The rules are

meant to be followed and their provisions binding on a

party who is conducting a proceeding in Court.”

In the instant case, there is no doubt that none of the

Defendants in the Court below raised the

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defence of limitation of action in their Statements of

Defence. This fact is indeed conceded by the Appellants.

However, it is the contention of the Appellants that, though

the defence of limitation of action was not specifically

pleaded, on the 29/11/2012, this Court granted leave to the

Appellants to raise and argue same, as a fresh or new issue

on appeal. Indeed, it is now settled law, that the issue of an

action being statute barred is a substantial question of law

that may affect the jurisdiction of the Court, and

therefore can be raised for the first time on appeal with the

leave of Court. This is in consonance with the settled law

that, where a party intends to raise a fresh issue on appeal,

he has to seek and obtain leave of the appeal Court before

the issue can be validly raised and argued. See Olagunju

v. P.H.C.N. Plc (supra) at p.125 Paragraphs D – F;

Ajala v. Okogbue (2011) 16 NWLR (pt.1272) p.62;

Gabriel v. State (1989) (pt.122) p.457; Ukong v.

Commissioner, Finance (2006) 19 NWLR (pt.1013)

p.187; Dagaci of Dere v. Dagaci of Ebwa (2006) 7

NWLR (pt.979) p.382 and M.L.G; Kwara State v.

Oyebiyi (2006) 10 NWLR (pt.988) p.320. This is based

on

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the premise that, where the question involves substantial

point of law, and it is apparent that it will not be necessary

to open up further evidence which could affect the decision

of the trial Court, the appeal Court will allow the question

to be raised and argued.

In the instant case, this Court granted leave to the

Appellants to raise and argue fresh issues on appeal. That

fresh issue turned on the issue of Limitation of action. It is

obvious that the issue of whether or not an action is caught

by limitation of action or statute is one that can be

determined through the Statement of Claim alone. In that

case, the Defendant relying on it need not call or adduce

evidence, if the facts needed to establish the defence can

be gleaned from or are contained in the case presented by

the Plaintiff in the Statement of Claim. See Olagunju v.

P.H.C.N. Plc (supra) at p.126 Paragraphs F.

As stated earlier, the issue of limitation of action is one of

jurisdiction and therefore, where it is raised on appeal, it

would not be correct to assert, as done by the Respondents,

that the Defendant has put up a case different from that

presented in the trial Court. This is in

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view of the law that, an issue of jurisdiction can be raised

at any stage of the trial, even for the first time on appeal.

To that extent, I agree with Learned Senior Advocate for

the Appellants that the Adeosun’s case (supra) relied on by

learned counsel for the 7th Respondent is not applicable to

the facts of this case.

Now, the Statute of Limitation cited and relied on by the

Appellants is the Public Officers Protection Law of Ogun

State. Learned Counsel for the 6th Respondent had

contended that the said Law is meant for the protection of

“public officers” only and that the 3rd, 4th and 5th

Respondents who can be said to qualify as “public officers”

did not raise the defence. That, the defence of limitation

under the Public Officers Protection Law (supra), is meant

to protect “public officers” and that where such person fails

to raise same in his pleadings, it would be deemed that he

has waived the defence. There is no doubt that Public

Officers Protection Laws are meant to protect public

officers from civil liability for any wrongdoing that may

occasion damage to any citizen, if such action is not

instituted

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within three months after the cause of action accrued. In

the case of Hassan v. Aliyu (supra) at p.621 Paragraphs

E, Adekeye, JSC said that:

“In effect, the Public Officers Protection Act is designed to

protect a public officer who acts in good faith and does not

apply to acts done in abuse of office and with no semblance

of legal justification. On the purport and scope of Section

2(a) of the Public Officers Protection Act, it is well

established that the Act gives full protection or cover to all

public officers or persons engaged in the execution of

public duties who at all material times acted within the

confines of their public authority….”

It is obvious therefore that the statute is not meant for the

protection of all persons. As the title implies, where a

person is not a public officer, he is not entitled to claim any

protection under the Law. Accordingly, for any person to

claim protection under the Public Officers Protection Act or

Law, he must satisfy the following conditions:

(a) That he is a public officer; and

(b) That the act done by him was done in pursuance or

execution or intended execution of a law or

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public duty.

Accordingly, where any of the two conditions is not

satisfied, such a person is not entitled to protection under

the Public Officers Protection Law or Act, as the case may

be. It is therefore obvious that the Public Officers

Protection Law can only be invoked in favour of public

officers or persons. In other words, it is only public officers

for whose benefit the Law is made that can claim the

benefit of that protection. That being so, such a person who

is sued for an act committed by him in the execution of a

public duty or law, may decide to waive the benefit of the

protection guaranteed to him under the Law or Act. What

the Law provides is a defence against civil liability or action

and therefore it may appear that only the person for whose

benefit the law is made, that can raise the defence.

However, in the case of Alhaji (Dr.) Ado Ibrahim v.

Alhaji Maigida U. Lawal & Ors (2015) LPELR – 247

(SC), the Supreme Court, per Ngwuta, JSC said:

“Learned Counsel for the 1st – 4th Respondents expressed

the view that only the public officers (5th and 6th

Respondents) for whom the protection offered by the Act is

made can

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raise the issue and a non-public officer cannot raise and/or

rely on same. With respect to the learned counsel, I think

this argument in this respect is a fallacy borne out of a

skewed construction of the title of the Act, “Public Officers

Protection Act” without reference to the provision therein.

See the judgment delivered by this Court on 6/3/2015 in

SC. 85/2014, Timpre Sylva v. INEC & Ors (unreported as

of now). The expression in the Section reproduced…

“against any person for any act…” demonstrates the fallacy

in the contention that the protection under the Act is

restricted to the public officer whose act or neglect gave

rise to the suit. In my view, a Defendant sued alone or

together with the public officer whose act or omission is

questioned is entitled to raise and rely on the defence

under the Act irrespective of its title. However, a non-

public officer raising the defence in a purported status of a

public officer would lose not because he is not entitled to it

but because he does not possess the status in which he

raised the defence. See Rufus Alli Momoh v. Afolabi

Okewale & Anor (1977) 6 S.C. 81 at

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92.”

It therefore means that, a non-public officer who is sued

jointly or together with a public officer whose conduct is

questioned, is also entitled to raise or rely on the defence

provided by the Public Officers Protection Law. In that

respect, it is my view that the Appellants who were sued

together with the 3rd, 4th and 5th Respondents, are

entitled to rely on the defence created under the Law.

On the issue of waiver, the Supreme Court in the above

cited case, stated that, the word used in Section 2(a) of the

Public Officers Protection Act (which is in pari materia

with Section 2(a) of the Public Officers Protection Law of

Ogun State), is “shall” and therefore connotes

mandatoriness and leaves no room for discretion. That in

the circumstances, a mandatory statutory provision cannot

be waived. In considering the issue, the Supreme cited and

relied on its decision in Menakaya v. Menakaya (2001)

16 NWLR (pt.738) p.203 at 263 Paragraphs B – D,

where it held that:

“When therefore it is argued that a statutory provision has

been waived, it has to be considered whether the statute

confers purely private or individual

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rights which may be waived or whether the statutory

provision confers rights of a public nature as a matter of

public policy. If it is the later, the provision of such statute

cannot be waived as no one is permitted to contract out of

or waive a rule of public or constitutional policy. See A.G;

Bendel State v. A.G. of the Federation (1981) 10 SC.1

at 54; Ogbonna v. A.G. of Imo State (1992) 1 NWLR

(pt.220) 647 at 696.”

It therefore means that the arguments of the Respondent

on the issue of waiver go to no issue. Certainly, the

protection provided under Section 2(a) of the Public

Officers Protection Law is not a private right granted to

such public officers but is enacted as a matter of public

interest or policy. The Appellants cannot therefore be held

to have waived the protection provided by Section 2(a) of

the Law.

Now, the 1st, 2nd, 6th and 7th Respondents have also

argued that, the act of the 3rd Respondent, the Secretary

of Sagamu Local Government acted outside of the scope of

his duty as a public officer. That, there is sufficient

evidence on record to show that the 3rd Respondent acted

recklessly in the performance of his duties. It is my

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view that it is of no use spending valuable time on this

point. Even if it is agreed or accepted that the 3rd

Respondent did some acts that are not in tandem with the

scope of his functions in the nomination, selection and

appointment of the Ewusi of Makun, it should be noted that

the 1st, 2nd, 6th and 7th Respondents have not pointed to

any act to show that the 4th and 5th Respondents who are

also public officers were in pari delicto with him or that

they acted in a frolic of their own outside the scope of their

duties. To that end, this argument will also not avail the

said Respondents, i .e. the 1st, 2nd, 6th and 7th

Respondents. In other words, there is nothing to show that

the 4th and 5th Respondents abused their office or

otherwise acted in bad faith. The burden was on the 1st,

2nd, 6th and 7th Respondents to establish that the 3rd, 4th

and 5th Respondents acted in bad faith, but they failed to

do so. See Hassan v. Aliyu (supra) at p.622.

Now, what is left for this Court is to determine is whether

or not the Plaintiffs instituted the action within the time

stipulated by the Limitation Law. The Limitation Law is the

Public Officers Protection Law of

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Ogun State, which stipulate in Section 2(a) thereof, that the

limitation period shall be three months after the cause of

action arose or the act complained against occurred. In

other words, the action must be instituted within 3 months

after the cause of action accrued. See NEPA v. Olagunju

(2005) 3 NWLR (pt.913) p.602; Ibeto Cement Co. Ltd

v. A.G; Federation (2008) 1 NWLR (pt.1069) p.470

and Olagunju v. P.H.C.N. (supra) at p.125. To

determine the limitation period, the Court will refer to the

Statement of Claim. In the instant case, it has been pleaded

in Paragraphs 15, 16, 20 and 33(i) that the nomination of

the 1st Appellant as the Ewusi of Makun was done on the

27/10/2006 and 19/12/2006 respectively. The evidence on

record also shows that the 4th Respondent approved the

appointment of the 1st Appellant as the Ewusi of Makun on

the 16/2/2007. The suit, the subject of this appeal was filed

on the 25/2/2008 which is a period of about twelve (12)

months after the appointment of the 1st Appellant as the

Ewusi of Makun was approved by the 4th Respondent. This

is clearly outside the 3 months limitation period prescribed

by Section 2(a) of the Public Officers

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Protection Law of Ogun State. In that respect, there is no

doubt that the action instituted by the 1st and 2nd

Respondents on the 25/2/2008 is statute barred. In that

respect, the Court below lacked the jurisdiction to

adjudicate on the matter that is statute barred. The action

being statute barred is liable to be struck out.

Despite my finding on issue one (1) above, I find it

necessary to consider issue six (6), which is; whether the

action of the Claimants was (is) incompetent and void ab

initio in view of the issuance of the Writ of Summons by A.

F. Okunnuga & Co. On this issue, learned counsel for the

Appellant cited Sections 2(1), 23 and 24 of the Legal

Practitioners Act; and Order 6 Rule 1 of the Ogun State

High Court (Civil Procedure) Rules, 2008, to submit that in

the administration of justice, only a Legal Practitioner

whose name is on the roll of Legal Practitioners kept in the

Supreme Court Registry is entitled to practice as a

Barrister and Solicitor in Nigeria. That in that respect,

Originating Process must be signed either by the Claimant

or a Legal Practitioner. Learned Counsel then submitted

that a business name is not a Legal

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Practitioner known to law and therefore any Originating

Process signed in the name of a Law Firm is void. That, the

Writ of Summons in this case was neither signed by the

Claimant nor signed by a Legal Practitioner known to law.

That it was signed by A. F. OKUNNUGA & CO. which is not

a Legal Practitioner but a Law Firm. The cases of SLB

Consortium Ltd v. N.N.P.C. (2011) 9 NWLR (pt.1252)

p.317; Okafor v. Nweke (2007) 10 NWLR (pt.1043)

p.521 and Braithwaite v. Skye Bank (2012) 12 S.C.

(pt.1) p.13 were then cited to submit that A. F. Okunnuga

& Co. is not a person entitled to practice Law in Nigeria

and as such cannot prepare, file or sign processes in a

Court of Law.

Learned Senior Advocate of Nigeria for the Appellant also

cited the unreported case No. SC/75/2008, The Nigerian

Army v. Sgt Asanu Samuel & Ors delivered on the 12th

July, 2013 to further submit that the Writ of Summons

prepared by A. F. Okunnuga & Co. is fundamentally

defective, incompetent and therefore incapable of initiating

any competent action. We were accordingly urged to hold

that the entire action of the 1st and 2nd Respondents in the

Court below, is incompetent, null

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and void.

Responding on this issue, learned counsel for the 1st and

2nd Respondents referred to Orders 1 Rule 1, 3 Rule 2 of

the Ogun State High Court (Civil Procedure) Rules 2008 to

contend that those rules were followed in the institution of

this action. That, it is clear that the writ was signed by A.F.

Okunnuga; Esq a Legal Practitioner as shown in page 2 of

the records and that the Statement of Claim was also

signed by the same A. F. Okunnuga as indicated in page 12

of the records. That what appears at page 3 of the record is

the address for service and does not signify the person who

issued the writ. Furthermore, that what the Court should

look at is the writ as a whole in order to determine whether

it substantially complies with the Rules of the Court.

Learned Counsel for the 1st and 2nd Respondents also

contended that the distinguishing feature between this case

and the cases cited by the Appellants is that, while this

case deals with a bundle of documents that initiated the

proceeding, the document in those cases were single

isolated documents. That, in any case, the Appellants did

not raise the issue promptly or within a reasonable time,

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but fully took part in the proceedings without complaining.

That by Order 5 Rule 2(1) of the Ogun State High Court

(Civil Procedure) Rules, 2008, it is now too late for the

Appellants to raise the issue.

On his part, learned counsel for the 6th Respondent

contended that the Writ of Summons and Statement of

Claim filed in this suit are competent and regular in law.

That at page 2 of the Record of Appeal, learned counsel

who filed the Writ of Summons signed immediately after

the relief sought and that A.F. Okunnuga & Co. on page 3

of the record is just for the purpose of address. It was

therefore submitted that the case of Okafor v. Nweke

(2007) 10 NWLR (pt.1043) p.521 is not applicable to

this appeal because A. F. Okunnuga, Esq who prepared the

Writ of Summons signed his name as such at the

appropriate place. We were then urged to resolve this issue

in favour of the Respondents.

Learned Counsel for the 7th Respondent contended that

this issue is a fresh issue which was not raised in the Court

below. That though the Appellants sought leave to file

additional ground, they did not seek leave to raise and

argue the issue distilled from the Additional

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Ground of Appeal. The case of Incar Nig. Plc v. Bolex

Enterprises Nig. (2001) FWLR (pt. 58) p.1187 at 1199

Paragraph H; Jov v. Dom (2001) FWLR (pt. 62) p.

2016 at 2034 – 2035 Paragraphs E – A; Onyemaizu v.

Ojiako (2000) FWLR (pt. 2) p. 310 and Jiddun v.

Abuna & Anor (2000) FWLR (pt. 24) p. 1405 at 1421

Paragraph A were cited to submit that, the law is that

where a party seeks to raise a fresh issue on appeal, he

must in addition seek leave to argue the fresh issue

distilled from the Additional Ground of Appeal. That in the

instant case, the Appellants failed to seek leave of this

Court to raise and argue a fresh issue from the Additional

Ground of Appeal. It was then contended that leave to file

Additional Ground of Appeal is not the same as leave to

argue the fresh issue on appeal.

Learned Counsel for the 7th Respondent alternatively

argued that, the case of Okafor v. Nweke (supra) is not

applicable here, as a meticulous examination of the

processes filed in the Court below will reveal that the

Statement of Claim which supersede the Writ of Summons

were issued and signed by A.F. Okunnuga & Co. as seen in

page 2 of the records. That it is

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settled law that the sin, negligence or inadvertence of

counsel should not be visited on the litigant. The case of

Akinpelu v. Adegbore (2008) All FWLR (pt. 429) was

cited in support. The case of Ogundele v. Agiri (2010) All

FWLR (pt. 507) p.1 at 27 – 28 was then cited in urging

us to discountenance with the arguments of the Appellants

in the interest of justice.

Replying on points of law, learned counsel for the

Appellants contended that the part of the decision in Jov v.

Dom (supra) relied on by the 7th Respondent is an obiter

dictum. That in any case, the Supreme Court has since

departed from the position. Cases such as Moses v. State

(2006) 11 NWLR (pt. 992) p. 458 at 503; Aderibigbe v.

Abioye (2009) 10 NWLR (pt. 1150) p. 592; Owners of

M/V Gongola Hope v. S.C. (Nig.) Ltd (2007) 15 NWLR

(pt. 1056) p. 189 and Agbiti v. Nigeria Navy (2009) 10

NWLR (pt. 1236) p. 175 were then cited to submit that,

where the issue rests on the jurisdiction of the Court, an

Appellant does not require leave to raise the issue, as the

issue of jurisdiction can be raised at any stage of the

proceedings and in any manner.

Learned Counsel for the Appellants insisted that the

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Writ was issued by A.F. Okunnuga & Co., a non-legal

practitioner because the name of “A.F. Okunnuga & Co.” is

boldly inscribed on page 3 as the person who issued the

Writ of Summons. That the issue of sin of counsel was duly

addressed by the Supreme Court in Braithwaite v. Skye

Bank (2012) 12 S.L. (pt.1) p.13. Furthermore that the

issue of the Legal Firm of Ajibola & Co signing the brief in

that case was never addressed in the case of Ogundele v.

Agiri (supra) cited by the 7th Respondent, as it was not an

issue raised for determination in that case. We were then

urged to discountenance the arguments of the 1st, 2nd, 6th

and 7th Respondents and to allow the appeal.

Now, learned counsel for the 7th Respondent as a

preliminary issue, has contended that this issue is a fresh

issue which did not arise in the Court below. That though

the Appellants had sought leave of this Court to file

“Additional Ground(s) of Appeal, they did not proceed to

ask for leave to argue an issue out of the Additional Ground

of Appeal. The Appellant is of the view that the issue is one

of jurisdiction which does not require leave of this Court to

raise

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and argue same. I was able to read the authorities cited

and relied upon by learned counsel on both sides. Truly, in

the case of Jov v. Dom (supra) cited by learned counsel

for the 7th Respondent, the Supreme Court observed that a

question of law and jurisdiction may be raised at any time

in the proceedings, even on appeal but that the procedure

for raising the issue must be followed i.e, that even in case

of jurisdiction, leave of Court must be sought and obtained.

In the case of Agbiti v. Nigerian Army (supra) cited by

learned counsel for the Appellant; Adekeye, JSC held

p.207 Paragraph G – 208, Paragraph B as follows:

“An Appellant is allowed to raise the question of

jurisdiction on appeal without the leave of Court whereas

ordinarily a fresh issue can only be raised on appeal with

the leave of Court sought and obtained hence the issue

becomes incompetent and liable to be struck out. I shall

repeat with emphasis that an Appellant does not require

leave to raise the issue of jurisdiction, as it can be raised at

any stage of the proceedings and in any manner. The issue

of jurisdiction or competence when raised must be one

which must be

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capable of being disposed of without the need to call

additional evidence. The issue of jurisdiction being radically

fundamental to adjudication in the Nigerian legal system

must be properly raised before the Court can rightly

entertain the point. Where the question involves a

substantial point of law, substantive or procedural and its

apparent that it will not be necessary to open up further

evidence which would affect the decision, the Court has a

duty to allow the question to be raised and the points taken

so as to prevent an obvious miscarriage of justice.”

My Lord, I.T. Muhammad, JSC expressed similar news in

the case of Aderibigbe v. Ajiboye (supra) at p.615

paragraphs C – G.

It therefore means that where the point of law raised is

substantial or rests on the jurisdiction of the Court to hear

and determine the suit; and there is no need to call or

adduce additional evidence on the issue, leave of the Court

is not required to raise and argue the issue. In the instant

case, the Appellants sought for and were granted leave to

file Additional Ground of Appeal. The Additional Ground of

Appeal is Ground 10 in the Amended Notice of

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Appeal filed on the 4/3/15 and deemed filed on the 27/5/15.

It touches on the competence of the Writ of Summons on

the ground that it was issued by A. F. Okunnuga & Co. This

fact can be easily determined by looking at the Writ of

Summons; therefore, no additional evidence is required to

establish that fact. I therefore hold that the issue was

properly raised and argued in this appeal.

Now, on the substantive issue, it is a requirement in most

High Courts (Civil Procedure) Rules in Nigeria, including

that of the High Court of Ogun State that, an Originating

Process shall be prepared by either the Claimant or his

Legal Practitioner. See Order 6 Rule 1 of the Ogun State

High Court (Civil Procedure) Rules, 2008. The problem the

Courts have had to grapple with have always been whether

a process purported to have been prepared or signed by a

Legal Practitioner, was indeed prepared or signed by a

Legal Practitioner known to law in Nigeria. In resolving the

issue, the Supreme has laid emphasis on Sections 2(1) and

24 of the Legal Practitioners Act, Cap. 207, Laws of the

Federation of Nigeria, 1990. It has been held that by a

combined reading of Sections 2(1)

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and 24 of the Legal Practitioners Act (supra), a person is

only entitled to practice law in Nigeria as a Barrister and

Solicitor, otherwise known as a Legal Practitioner, if and

only if, his name has been enrolled in the Register of Legal

Practitioners in the Supreme Court of Nigeria. Such a

person must necessarily be a natural person and must be

registered on the roll under a given name. It is by that

name that such a person can be identified or recognized as

a Legal Practitioner. It therefore means that such Legal

Practitioner must prepare or sign all Court processes under

that name, and no other. However, Legal Practitioners in

Nigeria were in the habit of preparing Court processes in

their Firm names; and that was the position when the

Supreme Court in the case of Okafor v. Nweke (2007) 10

NWLR (pt.1043) p.521 pronounced on the competence of

Court processes signed in the name of a Firm of Legal

practitioners.

In the Okafor v. Nweke case (supra), in upholding the

objection on the competence of the Motion on Notice,

Notice of Cross-Appeal and Applicants’ brief in respect of

the application, all of which were signed in the name of

J.H.C. Okolo, SAN

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& Co., the Supreme Court cited Sections 2(1) and 24 of the

Legal Practitioners Act (supra) to hold that:

“The combined effect of the above provisions is 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 in Nigeria.”

The significance or impact of that decision is that, it

determined that all Court processes prepared and/or signed

by a Legal Practitioner must be so prepared in the name of

such Legal practitioner. A Firm of Legal Practitioners is not

the name of a Legal Practitioner enrolled to practice as a

Barrister and Solicitor in the Register of Legal Practitioners

in the Supreme Court of Nigeria. Consequently, any Court

process prepared and/or signed in the name of a Firm of

Legal Practitioners is incompetent, null and void.

In the case of F.B.N. Plc v. Maiwada (2013) 5 NWLR

(pt. 1348) p. 444, a full panel of the Supreme Court was

invited to review and depart from the decision of Okafor v.

Nweke (supra). The Supreme Court, after taking

arguments of counsel and numerous amici curiae invited

to address the Court on the

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issue, refused to depart from Okafor v. Nweke (supra)

and reiterated that the position in that case is good law.

Specifically, Fabiyi, JSC who read the lead judgment said:

“The provisions of Sections 2(1) and 24 of the Act… remain

the law and shall continue to be so until when same is

repealed or amended. For now, I see nothing amiss about

the law.

The decision in Okafor v. Nweke was based on a

substantive law, an Act of the National Assembly i.e. the

Legal Practitioners Act. It is not based on Rules of Court.

According to Oguntade, JSC at page 534 of the judgment

in Okafor v. Nweke; “It would have been quite another

matter if what is in issue is a mere compliance with Court

Rules.” Let me say it bluntly that where the provisions of an

Act like the Legal Practitioners Act is at play, as herein,

provisions of Rule of Court which are subject to the law

must take the side line.”

The above cited authorities therefore represent the law on

the issue in this country. Those decisions have been

followed and applied by this Court and indeed the Supreme

Court in a plethora of cases. For example, see N.D.I.C. v.

Lagos State

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Gov’t & Ors (2009) LPELR – 4966 (CA); Unity Bank

Plc v. Denclag Limited & Anor (2012) LPELR – 9729

(SC); Amidu Ishola & Ors v. Ibadan North-East Local

Gov’t & Anor (2013) LPELR – 20477 (CA); Hassan

Garba v. Musa Lawan Birniwa & Anor (2013) LPELR –

21478 (CA) and Alhaji Tajudeen Babatunde Hamzat &

Anor v. Alhaji Saliu Ireyemi Sanni & Ors (2015)

LPELR – 24302 (SC).

In the instant case, the Writ of Summons, which is the

Originating Process, was issued by A. F. Okunnuga & Co of

No. 9, Abudu Bakare Street, Aiyegbami, Sagamu. It is true

that there is an inscription which may qualify as a signature

immediately after the claims on the Writ of Summons but

before the date of issuance of the Writ. There is however no

evidence that the said signature is that of A. F. Okunnuga;

Esq as contended by the Respondents, or indeed of any

Legal Practitioner. Indeed in the case of Okafor v. Nweke

(supra), Onnoghen, JSC(as he then was) stated that:

“I had earlier stated that the law does not say what should

be in the roll should be signature of the Legal Practitioner

but his

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name.”

The name of A. F. Okunnuga, Esq is not on the Writ as the

maker of the signature found at page 2 of the record.

Furthermore, Order 6 Rule 7 of Ogun State High Court

(Civil Procedure) Rules (supra) States that the Originating

Process shall be “prepared” by the Claimant or his Legal

Practitioner. In the instant case, the Writ of Summons

which is the Originating Process in this case was prepared

by A. F. Okunnuga & Co., a Law Firm, and therefore not a

person known under the Legal Practitioners Act as a Legal

Practitioner. It is therefore obvious that the Originating

Process in this case prepared by A. F. Okunnuga & Co is

incompetent. In that respect, the Statement of Claim

predicated on such incompetent Originating Process and

the entire proceeding of the Court below based on it are a

nullity. In other words, the entire proceedings of the Court

below, including the evidence led on the invalid process

and the judgment thereon were conducted without

jurisdiction. This means that the conditions precedent to

confer jurisdiction on the Court below were not satisfied.

Learned Counsel for the 7th Respondent raised the issue

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of interest of justice. In the case of F.B.N. v. Maiwada

(supra), the Supreme Court pointed out clearly that the

issue is one of compliance with the provisions of

substantive law; the Legal Practitioners Act; and not one of

mere practice and procedure. That in the circumstances,

the notion of substantial justice or interest of justice cannot

be relevant. See also Braithwaite v. Skye Bank (2012)

12 S.C. (pt.1) p. 13.

On the whole therefore, it is apparent that the Writ of

Summons was prepared by A. F. Okunnuga & Co., a Law

Firm. That makes the Writ of Summons and the entire

proceedings of the Court below including the judgment

which is the product of the proceeding, null and void,

having been conducted without jurisdiction. This issue is

therefore resolved in favour of the Appellants. With the

resolution of issues 1 and 6 in favour of the Appellant, the

entire substratum of the case conducted in the Court below

has collapsed. It would therefore be mere academic

exercise to delve into the remaining issues in this appeal.

Having resolved as above, it is my view, which I hold, that

this appeal has merit and should be allowed. It is

accordingly allowed.

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Accordingly, the Writ of Summons filed in the Court below

and upon which the case was conducted in the Court below

is hereby struck out. The entire proceedings of the Court

below and the judgment delivered on the 19th day of

January, 2012, is hereby set aside.

The parties are to bear their costs.

MODUPE FASANMI, J.C.A.: My learned brother Haruna

Simon Tsammani J.C.A. has afforded me a preview of the

draft of the judgment just delivered by him.

The issues raised in the appeal have been adequately dealt

with. I am in complete agreement with his reasoning and

conclusion which I adopt as mine. The Writ of Summons

which is the originating process in this case was prepared

by A.F. Okunnuga & Co.; a law firm not a person known

under the Legal Practitioners Act as a legal practitioner.

The originating process is therefore incompetent. The

statement of claim predicated on such incompetent

originating process and the entire proceedings are null and

void. See the case of Okafor v. Nweke (2007) 10 NWLR

(Pt.1043) page 521.

The appeal is meritorious and it is hereby allowed. I abide

by the consequential orders contained in

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the lead judgment including the order on costs.

CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege

of reading in draft the judgment just delivered by my

learned brother, HARUNA SIMON TSAMMANI JCA. I agree

with his reasoning and conclusions. Another case of signing

of Court processes by a law firm. My learned brother has

once again dealt lucidly with the relevant issues in the

appeal. I also allow the appeal. I abide by the consequential

orders in the lead judgment.

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