Categories: Be the FIRST to KNOW

Effect of an Unsigned Originating Process

Case Title: AHEMBA & ORS v. AKOSU (2023) LPELR-60479(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, May 26, 2023

Before Their Lordships

Mohammed Ambi-Usi Danjuma

Biobele Abraham Georgewill

Ibrahim Wakili Jauro

Between

1. FRED AHEMBA

2. SARTER AKOSU

3. HON. MRS. TORKWASE AJOH as APPELANT(S)

And

GRACE MBAKASEV AKOSU as RESPONDENT(S)

JUDGEMENT SUMMARY

INTRODUCTION:

This appeal borders on the declaration of title to land.

FACTS:

The appeal is against the judgment of the High Court of Benue State Makurdi Division (trial Court).

The gist of the case of the Respondent as Claimant before the trial Court was that the land in dispute was given to her as an item of absolute gift by one Mr. Natar Ade in the presence of her husband Barrister Samuel Terhemen Akosu, his mother, Mama Esther Ikyartser Akosu and his younger brother, Terfa Akosu, and she was thus, entitled to the ownership of the land in dispute. However, the 2nd Appellant purported to sell the land in dispute to the 3rd Appellant and the 1st and 3rd Appellants had entered into the said land without her consent and she therefore, sought a declaration of title to the land in dispute and an order ejecting the 1st and 3rd Appellants from the land in dispute as well as an order of injunction restraining all the Appellants from committing any further acts of trespass on it and damages for trespass.

On the other hand, the Appellants as Defendants before the trial Court claimed that there was no time when the land in dispute was given to the Respondent by one Natar Ade as alleged by the Respondent. They maintained that the land in dispute forms part of a larger land that had been given as an outright gift by the said Baba Natar Ade to one Barrister Akosu lordye through his mother Mama Esther Ikyartser. However, the 3rd Appellant had validly acquired the land in dispute from the 2nd Appellant with the consent of one Alumun Akosu lordye, the younger brother of Barrister Akosu lordye. On his part, the 3rd Appellant filed a counter-claim against the Respondent claiming a declaration of title to the land in dispute as well as an order of injunction against the Respondent and for damages for trespass.

At the close of pleadings and upon joinder of issues between the parties, the matter proceeded to trial. At the hearing, the Respondent called three witnesses and tendered several documents which were admitted in evidence as Exhibits and closed her case. On their part, the Appellants testified for themselves and closed their defense. Subsequently, the parties filed and exchanged their final written addresses, which were duly adopted and on 29/4/2014, the trial Court proceeded to deliver its judgment, in which it granted the claims of the Respondent as Claimant against the Appellants as Defendants, hence this appeal.

ISSUES:

The appeal was determined on the following issues:

1. Whether the Suit was initiated by due process as required by the law so as to clothe the lower Court to entertain the Suit?

2. Whether the Respondent by her pleading and the evidence adduced before the lower Court was able to prove her case as required by the law to entitle her to a declaration of title over the disputed land?

DECISION/HELD:

In the final analysis, the Court found that the Respondent’s suit was lacking both in competence and on merit. The appeal was accordingly allowed. The decision of the trial Court was therefore set aside and in its stead, the Respondent’s suit was struck out.

RATIO DECIDENDI

PRACTICE AND PROCEDURE – SIGNING OF COURT PROCESS(ES) – Effect of an unsigned originating process
PRACTICE AND PROCEDURE – ISSUE OF JURISDICTION– Whether the issue of failure to sign an originating process is an issue of jurisdiction which must first be resolved one way or the other
PRACTICE AND PROCEDURE – SIGNING OF COURT PROCESS(ES)– Effect of an unsigned Court process
PRACTICE AND PROCEDURE – ORIGINATING PROCESS – Effect of an incompetent originating process
PRACTICE AND PROCEDURE – SIGNING OF COURT PROCESS(ES)– Effect of a Court process not signed by a verifiable person/unsigned Court process
ACTION – WRIT OF SUMMONS– Effect of an incompetent writ of summons
PRACTICE AND PROCEDURE – AMENDMENT OF COURT PROCESSES/PLEADINGS– Whether an invalid/incompetent originating process can be amended
EVIDENCE – PROOF OF TITLE TO LAND– Ways of proving title/ownership of land