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MR. EKUNDAYO & ANOR v. ALHAJI SALIU ABERUAGBA

(2017) LPELR-42428(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of May, 2017

CA/IB/344/2009


Before Their Lordships

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria


Between

1. MR. EKUNDAYO
2. MRS. EKUNDAYO - Appellant(s)

AND

ALHAJI SALIU ABERUAGBA
(For himself and on behalf of the family of Late Ayinke Aberuagba) - Respondent(s)


Summary

INTRODUCTION:
This appeal borders on the Effect of Signing of Court Process(es) in the name of a Law Firm. 
FACTS:
This appeal arose from the judgment of Oyo State High Court delivered on 29th April, 2009 wherein Hon. Justice S.O. Akintola granted the claims of the plaintiff herein respondent and dismissed the counter claim of the defendant herein appellant.

The case at the trial Court is in respect of property known as and situates at No. 11 Oba Abimbola Road, Felele Ibadan formerly described as S7/464 Felele Layout, Challenge, Ibadan which belonged to Late Alhaja Ayinkie Aberuagba. The Late Alhaja Ayinke Aberuagba had tenants on the land including the appellants who were rent paying tenants.

At the death of the Landlady, Alhaja Aberuagba without issue and intestate, the property so described devolved on the respondent Alhaji Saliu Aberuagba who sought to recover the property from the occupying tenants herein appellants.

The appellants admit that they were tenants of the deceased Alhaja Ayinke Aberuagba up till the 21st of November, 2001 when they agreed with the Late Ayinke Aberuagba for the sale to them (i.e. appellants) of the property for the sum of three Million Naira (N3,000.000.00) and that they had paid a sum of One Million, five Hundred Thousand Naira (1,500,000.00) in part payment. There was no receipt or other memorandum evidencing the transaction before the Late Alhaja died about 17th December, 2001.

Against the facts, the learned trial Court entered judgment for the  respondent and dismissed the counter-claim of the appellants claiming ownership of the property in issue. 

It should be stated that all the originating process was signed in the name of the firm of solicitors of the plaintiff being Chief Olusegun Otayemi & Co. Solicitors & Advocates. 


Dissatisfied with the outcome, the appellant filed this appeal to the Court of Appeal.




ISSUES:
The appellants raised the following issues for determination:
i. Whether the initiating processes by the Respondent in this suit having been issued by A.O. Otayemi & Co, a non-cognizable legal practitioner robs, the trial Court of its jurisdiction to entertain the suit. Covers ground 4.
 ii. Whether the trial judge was wrong in granting, the Respondent%u2019s reliefs, when Plaintiff/Respondent%u2019s claim is not maintainable and sustainable in view of the plaintiff%u2019s lack of locus standi to institute this suit. Covers grounds 1, 3 & 8.  
iii. Whether the learned trial judge was not in error to have awarded N10,000.00 per month to the Respondent as the rental value of the premises known as No. 11, Oba Abimbola Road, Felele, Ibadan notwithstanding evidence part payment for the property and existence of other tenants in occupation of part of the property. Covers ground 2.
iv. Whether the learned trial judge properly and/or adequately considered the counter-claim of the Appellants and the totality of the evidence led by the parties before dismissing the counter-claim. Covers grounds 5, 6, 7 and 9.

DECISION/HELD:
Based on issue one alone which the Court considered, the appeal was upheld. In consequence, the judgment of the Oyo State High Court in Suit No.I/427/2002 was set aside for jurisdictional incompetence.


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