Ambassador Mike Gbasha V. Lovebet (Nig) Ltd. (2005)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LADAN TSAMIYA, J.C.A.

This is an appeal against the Ruling of the High Court of Benue State sitting in Makurdi Division in its original jurisdiction in suit No.: MHC/158/96 delivered on 20/3/1998.

The Plaintiff, (who is the Respondent herein) filed an action against the defendant (now Appellant herein) in the High Court (referred herein the trial court) claiming as follows:-

(a) N87,112.50 (Eighty Seven Thousand, One Hundred and Twelve Naira, Fifty Kobo) as unpaid accommodation fee for chalet No.: 205 at the rate of N250.00 (Two Hundred and Fifty Naira only) Hotel day/Night plus 15% Valued Added Tax (V.A.T.) from 14th August, 1995 to 15th July, 1996, the two dates inclusive.

(b) N250:00 (Two Hundred and Fifty Naira only) plus N37:00 (Thirty Seven Naira only) VAT, totaling N287:50 (Two Hundred and Eighty Seven Naira, Fifty kobo) per Hotel day/night from and including 16/7/96 till judgment is delivered and complied with.

(c) A Declaration on that the Appellant’s threat to take over possession of the premises in issue as above recited and his disruption/disturbance of the business threat are in breach of the Tenancy agreement of 2nd January, 1995 and is against equity and good conscience.

(d) N500,000.00 (Five hundred thousand Naira only) in general damages for breach of the Tenancy agreement of 2nd January, 1995.

(e) A perpetual injunction restraining the Appellant and his agents/privies, corn further harassing the Respondent’s Love-bet Hotel, Gboko or anywhere on the facts on issues herein concerned, pending the determination of the Tenancy agreement.

(f) A perpetual injunction restraining the Appellant and his agents/privies from further attempting to or actual taking over by force intrigue or conspiracy the possession of the premises, housing of Love-bet Hotel, Gboko or concerned in the Tenancy agreement of 2nd January, 1995.

The Writ of Summon regarding this suit was filed on 15th day of July, 1996; through Receipt No: BN 079058. while suit was pending before the trial Court, the Respondent, by Receipt No: BN 285044 filed Motion No: MHC/90m/98 seeking the following:-

(a) An Order compelling the Appellant to re-open No: 1, Jacob Damjor Street, G.R.A., Gboko and to allow the Respondent’s Hotel business to flow till the determination of the substantive suit.

(b) An Order compelling the Appellant and his agents/privies to cease his rampageous acts of molesting the staff and Guests, bringing business to a halt and sealing the premises of the respondent Gboko Love-bet Hotel at No: 1, Jacob Damjor street, Gboko, by the use of violence, thugs or any illegal and improper means until the determination of the substantive suit.

(c) An Order directing the Chief Bailiff or a representative of this (i.e. lower court) to witness the re-opening of the Respondent’s Hotel premises at No: 1, Jacob Damjor street G.R.A., Gboko, and the taking of inventory of property and equipment there at for the purpose of marking and ascertaining any damage or loss pending determination of the substantive suit.

(d) Leave to amend the Respondent’s Statement of Claim in the substantive suit No.: MHC/158/96.

(e) To deem the amended Statement of Claim filed herewith as properly filed and served, proper filing fees has been paid.

And for order/further orders this court may deem necessary to make in the interest of justice.

After hearing the motion the trial court, on pages 37 – 38 of the record of this appeal, made the following orders:-

1. The Appellant shall forth with re-open No: 1, Jacob Damjor street, G.R.A., Gboko, and allow the Respondent’s business to flow till the determination of the substantive suit.
2. The Appellant and his agents or privies are restrained from molesting the staff and guests of the Respondent’s Gboko Love-bet Hotel and I sealing up the premises of the said hotel or doing anything that will disrupt the business of the hotel pending the determination of the substantive suit.
3. Leave is granted to the Respondent to amend his Statement of Claim suit No: MHC/158/96. And
4. The Amended Statement of Claim annexed to the application deemed as properly filed served, the necessary fees having been paid.

It is against this ruling delivered on 20/3/98, that the appellant has brought this appeal to this court. The parties exchanged briefs in respect of the Rulings against the orders made.

The Appellant’s appeal was on four (4) grounds, with their particulars.

The grounds are as follows:

1. The learned trial Judge erred in law, when she assumed jurisdiction on in the case without allowing the matter to be first entertained by the arbitration penal before the Court could validly assume jurisdiction.

PARTICULARS OF ERROR IN LAW

(i) Before the determination of the motion No: MHC/90m/98, the Statement of Claim before the Court was the one dated the 15th day of July, 1996, which was annexed to the said Motion No: MHC/90m/98 and marked Exhibit ‘A’.

(ii) By paragraph 18 of the aid Statement of Claim, it was obvious that the tenancy agreement which was executed by the parties had an arbitration clause on page 4.

(iii) In his argument in support of the Motion before the trial High Court, the learned Counsel to the Plaintiff/Applicant conceded the fact that the tenancy agreement contained an arbitration clause.

(iv) The learned trial High Court was therefore in grave error, when she held that there was no evidence before her ousting her jurisdiction in the heating of the substantive matter and the Motion before her on the basis of the arbitration clause.

2. The learned trial Judge erred in law, when she made an order restraining the Respondent and his agents or privies from molesting the staff and guests of the Plaintiff/Applicant’s Gboko Love-bet Hotel and sealing up the premises of the said Hotel or doing anything that will disrupt the business of the Hotel pending the determination of the arbitration case.

PARTICULARS OF ERROR

(i) In relief (b) in the Plaintiff/Applicant’s motion paper. The Plaintiff/Applicant claimed as follows:-

“An order compelling the Defendant/Respondent and his agents/privies to cease his rampageous acts of molesting the staff and guests, bringing business to a halt and sealing the premises of the Plaintiff/Applicant’s Gboko Love-bet Hotel at No.1, Jacob Damjor street, Gboko by the use of evidence, thugs or any illegal improper means until the determination of the substantive suit.

(ii) That prayer was refused by the trial Court on the ground that as far as the evidence before the court showed, it was an event that had already occurred.

(iii) The said Relief (b) by all intents and purpose sought an order of the trial Court to restrain the Defendant/ Respondent from doing the acts complained therein till the final determination of the substantive suit.

(iv) After refusing to grant the said prayer (b) it was no longer the function of the trial High Court to build up a different case for the Plaintiff/Applicant and grant him the same order which had earlier being refused under the omnibus ground.

3. The learned trial Judge clearly erred in law, when she granted interlocutory reliefs to the Plaintiff/Applicant on insufficient material which did not establish any legal right in the said Plaintiff/Applicant which was capable of being protected.

PARTICULARS OF ERROR IN LAW

(i) Paragraph 5 of Exhibit ‘A’ as well as paragraph 5 of the Amended Statement of the Plaintiff/Applicant’s claim clearly showed that the Plaintiff/Applicant was a tenant of the Appellant on the property in issue by virtue of a Tenancy agreement dated 2nd January, 1995.

(ii) The claims of the Plaintiff/Applicant as can be found in paragraph 18 of Exhibit ‘A’ as well as paragraph 37 of the Amended Statement of Claim are all based on an alleged breach of the said Tenancy Agreement of 2nd January, 1995.

(iii) To be entitled to the reliefs which were granted to the Plaintiff/Applicant, they had a duty to proof before the trial Court their legal right to repair on the Appellant’s property which was capable of being protected till the final determination of their case.

(iv) To be able to do that, it was incumbent on the plaintiff/Applicant to present before the trial Court the said Tenancy Agreement which gave them the right to remain on the property and also to clearly establish the areas it was breached.

(v) The failure to do that was fatal as it only meant that the Plaintiff/Applicant did not establish any legal right to remain on the Appellant’s property which was capable of being protected.

4. The learned trial Judge erred in law, when she Granted interlocutory reliefs in respect of acts Which had already been done and completed.

(i) Paragraphs 9 and 10 of the affidavit in support of the Plaintiff/Applicant motion clearly showed that the taking over of the premises was done and completed on the 15th day of February, 1998.

(ii) Interlocutory injunction cannot be granted in respect of acts already completed. See COMMISSIONER FOR WORKS, BENUE STATE AND ANOR. VS. DEVCON DEVELOPMENT CONSULTANTS LTD. ABD ANOR (1988) 3 NWLR PT. 83 (407) AT (423).

From the four grounds of appeal, the learned Counsel for the Appellant formulated the following three (3) issues for determination. The issues are as follows:-

1. Whether the learned trial Judge was right to make a “restraint order” which was not asked for by the Plaintiff/ Applicant/Respondent.
2. Whether the learned trial Judge was right to grant an interlocutory relief in favour of a party who did not establish any triable issue at the time of his application.
3. Whether the learned trial Judge was right to grant an interlocutory injunctive reliefs in favour of the Plaintiff/ Applicant/Respondent in respect of Acts which had already been done and completed.

The Respondent through his counsel filed his Respondent’s brief and formulated four (4) issues from the four grounds of appeal filed by the Appellant. The issues are as follows:-

1. Whether or not, the Defendant/Appellant’s resort to self help by forcefully sealing the Plaintiff/Respondent Hotel during the pendency of the substantive suit in which possession of the Hotel premises was an Issue was proper.
2. Whether or not, there is triable issue in a Motion which alleges resort to self help by a party who seals up his opponent’s Hotel and commanders property worth Five million Naira during the

pendency of a substantive suit in which possession of the premises is in issue.

3. Whether or not, an order to re-open a sealed-up premises is an injunction against an accomplished act.
4. Whether or not, the grant of an ancillary (injunctive) relief by the trial Court following grant of a main relief is not proper where there is an omnibus prayer on the Motion paper.

This appeal came up for hearing on 16/5/2005, but both parties and their counsel were absent without any excuse being brought to the notice of this court. Non appearance in court may be excused upon proper application and for good and sufficient reason. See OKOIKO vs. ESEDALVE (1974) 3 SC 15. From our record, it has been shown that parties’ counsel have been served with the Hearing Notices, but absent.

By the rules of this Court (Order 6 Rule 9), if Briefs have been filed but at the hearing no party or any legal practitioner appearing for him, appears to present oral argument, the appeal will be deemed as having been argued and will be considered as such. Therefore, Briefs of Arguments having been filed by the respective parties but at the hearing of this appeal, no party or any legal practitioner appearing for him to present oral argument, this appeal will be treated, as, having been argued and will be considered as such. See SANDA vs. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR 379.

There is one main important and most serious issue which needs to be considered first. This issue, is the competence of this appeal before this court. I saw a Notice of Preliminary Objection on this ground filed by the Respondent on 5/7/2000, but due to his absence it was not argued and is not in-co-operated in his Brief of Argument.

On issue No: 1, the Appellant’s contended that the trial Judge was wrong when he made a “restraint order” which was not asked for by the Respondent. On the Brief of Appellant Argument, the learned Counsel for the Appellant submitted that the grant of such an order in the circumstance occasioned a grave mis-carriage of justice. In granting this order, the trial Judge stated that:-

“Although, the Applicant has not asked this order for an order restraining the Respondent, either by himself or other person(s) acting on his behalf, from further molesting the staff, guests and losing-up the Hotel the circumstance of this case warrant the making of such an order…”

The Appellant’s Counsel submitted further that the learned trial Judge justified his decision by placing reliance on the case of Fabunmi vs. Agbe (1985) 16 NSCC (Pt. 1) 322 at 342 and, on Section 32 of the High Court Law Cap 49 Laws of Northern Nigeria, 1963, which enjoins the Court to finally and completely determine all matters in controversy between the parties so that “multiplicity of legal proceedings concerning any of those matters” may be avoided. The learned Counsel, also contended that the proceeding in which the order was made was an interlocutory proceeding and not a final proceeding where issues will be finally and completely decided. And the main aim, according to his submission, of an interlocutory proceeding in the nature of the one before the trial Judge is to maintain the status-quo pending the determination of, the issues submitted for adjudication by the Court. He further contended that, it is an equitable jurisdiction which the Court is called upon to exercise in the light of the particular facts before the Court. In order to enable the Court exercise its equitable jurisdiction, he said, the Applicant must present convincing facts which in themselves vindicate the well laid down guiding principles for granting the injunction. The injunction order, the counsel contended, is not granted to compensate a Plaintiff/Applicant in the interim for merely initiating an action in a Court of Law. The learned Counsel cited the case of African Continental Bank Ltd. & 1 Or. vs. A. O. Awogboro & 1 Or. (1991) 2 NWLR (Pt.176) p.711 at 718, to support this contention.

The Appellant’s counsel further contended that Section 32 of the High Court Law (supra) as well as the case of Fabunmi (supra) relied upon by the learned Trial Judge are subject to the principles of law, that a Court of Law is not a charitable institution which liberally gives to parties what they have neither claimed nor proved. In support of this contention, he cited the case of Ekpenyong vs. Nyong (1975) 2 S.C. p.71 at 80-81 where IBEKWE J.S.C. (as he then was) stated:-

“…We think that, as the reliefs granted by the learned trial Judge were not those sought by the Applicants, he went beyond his jurisdiction when he purported to grant such reliefs. It is trite law that the Court is without the power to award to a claimant that which he did not claim. This principle of law has, time and again, been stated and restated by this Court that it seems to us that th6re is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law but good sense. A Court of law may award less, and not more than what the parties have claimed. A fortiori, the Court should never award that which was never claimed, or pleaded by either party. It should always be born in mind that a Court of law is not charitable institution, its duty, in civil cases, is to render unto everyone according to his proved claim.”

Not only that, in the case of M. A. ENIGBOKAN V. AMERICAN INTERNATIONAL INSURANCE COMPANY (NIG) LTD. (1994) 18B. L.R.C.N. 285 AT 315 The Supreme Court held:-

“…And the principle is also well established in law that a Court must not grant to a party a relief which he has not sought or which is more than he has sought or which is more than he has sought…”

The Counsel urges this court to allow this ground in favour of the Appellant.

Based on the forgoing, the counsel urges the Court to resolve issue No.1 in favour of the Appellant.

On issue No: 2, the Appellant’s contention is that it was wrong for the trial Judge to grant an interlocutory relief (in Prayer No (b) on the Motion paper) in favour of the party who did not establish any triable issue at the time of his application. The counsel on behalf of the Appellant, contended that in an application for interlocutory injunction, the Court must consider:-

(a) Whether the Applicant has a legal right, which he seeks to protect and that he has a good chance of success in the reliefs he is seeking for. The counsel ordered that it is necessary for such Applicant to satisfy the Court that there is a serious issue to be tried.

The learned Counsel cited the following cases to buttress the contention:

1. Obeya Memorial Specialist Hospital vs. A.G. of the Federation & Anor. (1987) 3 NWLR (Pt. 60) 325.
2. Kotoye vs. Central Bank of Nigeria (1989) 1 NWLR (Pt. 89) 419.
3. Oyeyemi vs. Irewole Local Govt. (1993) 1 NWLR (Pt.270) 462.

(b) Whether the balance of convenient will be in favour of the Applicant if the application is granted, i.e. Whether the Applicant will suffer more inconvenience if not granted. On this, the learned Counsel cited the cases of Missin & Ors. vs. Balogun & Anor. (1968) 1 All NLR 318; Kanno vs. Kanno & Ors. (1986) 5 NWLR (Pt. 40) 138 and Ikechukwu vs. Iwugo (1989) 2 NWLR (Pt.101) 99.

(c) Whether damages will be adequate compensation for the Applicant at the end of the litigation. He cited the cases of Abdullahi vs. Gov. of Lagos State (1989) 1 NWLR (Pt.97) 356; Nwanganha & Ors. vs. Military Gov. of Imo State & Ors. (1987) 3 NWLR (Pt.59) 185.

The learned Counsel contended that, at the time of the grant of interlocutory relief order, (directing the Appellant to re-open the Hotel to run the business) there was no any triable issue before the learned trial Judge. For the right of the Respondent to remain as Tenant on the Appellant property have thus, been extinguished bi lapse of time as the contract for Tenancy was entered and commenced on 2/1/95 and was to last for 3 years. The life of the Tenancy expired on 1/1/98. Then the counsel argued that the motion was brought 2 months outside the life span of the Tenancy Agreement having been brought on 4/3/98. The learned Counsel stated that since the Tenancy Agreement which conferred the legal right on the Respondent to remain on the Appellant property have expired at the time the Motion was brought, then there was no serious triable issue before the trial Judge for which the trial Judge could order the Appellant to re-open forth with No: 1, Jacob Damjor street G.R.A., Gboko for the Respondent to run the Hotel business, till the determination on their main suit. The counsel also urge this Court to resolve the Issue No: 2, in favour of the Appellant.

On Issue No: 3, the contention is that the learned trial Judge was wrong to grant interlocutory injunctive relief against acts which had already been done and completed. The counsel submitted that on 15/2/98, the Appellant re-possessed the premises. (The subject property.) Therefore, the act of taking over the premises was done completed on 15/2/98. That on 5/3/98, the Respondent filed an application to the trial Court seeking the Court’s order compelling the Appellant to re-open the premises to enable the Respondent to continue carrying out the Hotel business. The learned Counsel for the Appellant contended that even if the taking over of the premises after expiration of the tenancy by the Appellant was wrong (without conceding), there was no basis for granting such an order, consequently, the grant was wrong since there was a basis for awarding damages to the Respondent at learned of trial. The grant of that order, therefore is not justifiable. He further stated that the Supreme Court has in many cases viewed that, an interlocutory injunction cannot be granted for acts already done. In support of this, he cited… The cases of Comm. For Works, Benue State & Anor. vs. Devcon Development Consultants Ltd. & Anor. (1988) 3 NWLR (Pt.83) 407 at 923; Okafor vs. A.G. (1992) 2 SCNJ (Pt.11) 219 at 235 and Orji vs. Zion Ind. Ltd. (1992) 1 SCNJ 29 at 40-44 as well as Akpa vs. Hameen Habib (1992) 7 SCNJ (Pt.1) 119 at 137, which means a Court in that circumstances cannot restore the status-quo. The counsel, finally urges this Court to resolve all the issues in favour of the Appellant, allow the appeal, and the ruling appealed against be set aside, and dismissed the Motion No: MHC/90m/98.

For the Respondent, it was argued on his own formulated Issues Nos: 1 and 2, (which is Appellant’s Issue No:2) that, what the learned trial Judge did was right due to Appellant’s wrong act in taking law into his own hands by resorting self-help, wherefore the Appellant used thugs to beat and bail out both the staff and guests and sealed-up the Hotel on the Appellant unilateral, subjective, sadistic and erroneous assumption that the life span of the Tenancy Agreement between the Appellant and the Respondent expired. He contended that the suit brought was brought within Tenancy period. He argued that already another head of claim existed in the same suit against the Appellant for unpaid accommodation in respect of chalet No: 205 hired from Respondent by the Appellant and which chalet remained in control of the Appellant up to the time of sealing the Hotel by the Appellant. He defended the trial Court on the ground that the trial Court took the line of action in order to protect the modesty and dignity of the tenant and to prevent Landlord from his might, whims, and caprices to evict the tenant through self-help. That Judiciary always stands against self-help to subdue anarchy and rancor, in society generally. The Respondent argued that, the conduct of the Appellant complained of in Motion No.: MHC/90m/98 in the trial Court was most offensive and amounts to contempt of Court as the conduct was exhibited during pendency of the substantive suit. He further submitted that the Supreme Court has had the cause to condemn the use of self-help by Landlord against Tenant in a number of cases including the recently decided cases, of:

(1) Calabar East Co-operative vs. Ikot (1999) 12 SCNJ 321 at 336.

(2) Ojukwu vs. Govt. of Lagos State (1985) 2 I NWLR (Pt.10) 822.

(3) Sule vs. Nigerian Cotton Board (1985) 2 NWLR (Pt.5) 17.

The learned Counsel for the Respondent submitted that since the Appellant refused to comply with the trial Court order and refuse to re-open the premises Lovebet Hotel, Gboko, but instead, impounded and converted the furniture’s and other properties therein, and continue using them up to date, the Appellant is now neck-deep in contempt and shows the act of no respect for the Judicial process, he cannot, therefore enjoy this appellate Court sympathy. The counsel cited to support this contention the cases of Gov. of Lagos State vs. Ojukwu (1980) 1 NWLR (Pt.18) 621 and Military Gov. of Lagos State vs. Afolabi (1991) 6 NWLR (Pt.196) 221 C.A.

The Counsel’s defended the trial Court’s order on the grounds that the Appellant’s resort to self-help was improper, barbaric and contemptuous of the Trial Court, and as such the trial court was right in ordering the re-opening of the Respondent’s Hotel sealing up by such a barbaric act. He submitted that the issue of forceful sealing up the Respondent Hotel, taking over Respondent’s property worth several millions of Naira, and creating hardship to a peaceful and law ablding tenant, all during the pendency of a suit on the matter, raises triable issue which the Court determined in Motion No: MHC/90m/98. He urges this appeal to be dismissed and uphold the ruling of the trial Court on this issues.

On Issue No: 3, which is Appellant’s Issue No: 3, the learned Counsel for the Respondent submitted that, the Appellant misconceived/misconstrues the order. The order was a positive order to re-open but not an injunctive order, to prevent the sealing of what has already been completely sealed. The Respondent’s counsel added that both in common sense and in law reopening of a sealed-up premises cannot attract injunctive conduct but only attract a positive act of re-opening: what has, in the view of the trial Court, been wrongfully sealed-up. The argument of the Appellant on his issue No: 3, said the learned Counsel, be discountenanced having been misconstrues the order.

In respond to the Appellant’s argument, that the Respondent should allow the Hotel remain sealed up and the business thereof in operative, the Respondent’s counsel countered that such a submission is/was made malified as every litigant is required to mitigate his own damages and to be prudent and vigilant in his conduct whiich is the basis of maxim that. “Equity helps the vigilant”. The counsel brought Motion No:MHC/90m/98 to re-open the Hotel business and therefore mitigates his loss, and the trial Court rightly, in his view, up held that attempt to mitigate damages by ordering the Appellant to re-open the said Hotel forthwith. On the Appellant contention that the Respondent would have remained positive, without seeking to have the Hotel re-opened, supply because the trial Court may have in the end compensated him in damages he claimed, the Respondent’s Counsel argued that, the Appellant already had a pending suit No: GHC/108/96 before a Gboko High Court and did not wait lawfully to reap compensation for damages through the reliefs he claimed therein, but went out of his way to use barbaric means of that help. The Respondent’s Counsel submitted that the authorities against granting of an injunction order on accomplished acts cited by the Appellant are not applicable in this case because according to him, the facts in this, case do not show the grant of an injunction on an accomplished act, but instead, a grant of a mandatory order requiring one to positively act; i.e. to re-open a sealed up Hotel. He urges this Court, therefore, to discountenanced the Appellant’s Arguments on this issue and dismiss the appeal, for being devoid of merit.

On Issue No: 4, which is Appellant Issue No: 1, the Respondent’s Counsel submitted that since the Respondent’s Motion before the trial Court contains an omnibus Prayer, the trial Court could under the law make and infact did make the consequential and ancillary order No: 2, on the ruling. He contended also that the order against the Appellant to forth-with “re-open Lovebet Hotel for the business of the Respondent to flow till the determination of the substantive suit,” was/is a substantive relief whose probable consequential order will be to prevent a re-occurrence of deprecated conduct if and after the main order is complied with. The trial Court, he said, was right in manning the second order as a consequential one to give effect, to main order of forth-with re-opening the said Hotel and allow business to flow, and the trial Court is well covered by the omnibus Prayer on the Motion paper, in making such a consequential order. He submitted that the exercise of judicial discretion by the trial Court to grant the said consequential order(s) is also supported by Section 32 of the High Court Law (supra) applicable to Benue State as well as the Supreme Court’s view in Fabunmi vs. Agbe case (supra).

The Respondent’s Counsel on behalf of the Respondent, urges this appeal to be dismissed in its entirety for want of merit and that the Orders of the trial Court in Motion No: MHC/90m/98 be affirmed.

It is common ground that what is being criticized, or challenged, and the subject matter of appeal in this case, is the exercise of the discretionary power of the learned trial Judge, exercised in favour of granting orders, by granting the reliefs in the ruling appeal against delivered in respect of the Hotel in Gboko, known as Lovebet Hotel situated at No: 1, Jacob Damjor street, G.R.A., which the Respondent had been operating since 1985 after a tenancy Agreement between the two parties. The Notice of Appeal with four (4) grounds was filed on 28th day of October, 1998, against the ruling delivered on 28th March, 1998 in respect of Motion No: MHC/90m/98. The Notice of Appeal was not filed timously, and no leave of either the trial Court or this Court of Appeal was obtained, which is a condition precedent to the filing of the appeal out of time. This is deemed to be imperative as the entire appeal is against the exercise of the discretion of the trial Court.

The right to appeal is not discretionary or a product of common law, but statutory. It is indeed constitutional.

The relevant provisions relating to appeals and leave to appeal is Order 3 Rule 2 of the Court of Appeal Rules, 1981.

Generally speaking, an appeal to the Court of Appeal is either as of right or with the leave of Court, according to Section 239 or 240 of the 1979 Constitution. Section 240 (1) states that:-

“Subject to the provisions of Section 239 of the constitution, an appeal shall lie from decisions of the High Court to the Court of Appeal with leave of that High Court or the Court of Appeal.”

Section 239(1)(a) and (b) states that:-

“An appeal shall lie from decisions of the High court to the Court of Appeal as of right in the following cases:

(a) Final decision in any civil or Criminal Proceedings before the High Court sitting at first instance,

(b) Where the ground of appeal involves question of law alone, decision in any civil or Criminal Proceedings.

See:

(1) F.B.N. Plc. Vs. Fasher (2000) 6 NWLR (Pt.662) 573;

(2) Tecno Mech. (Nig) Ltd. vs. Ogunbayo (2000) 14 NWLR (Pt. 639) 150;

(3) Total Intern. Ltd. vs. Awogboro (1994) 4 NWLR (Pt.337) 147;

(4) Adamu vs. A.G. Borno State (1996) 8 NWLR (Pt.465) 203;

(5) Elendo vs. Ekwoaba (1995) 3 NWLR (Pt.386) 704.

Similarly, where the grounds of appeal in a Notice of Appeal against an interlocutory decision of the High Court raises question of law, there is no need for leave of Court to be s6ught or obtained before Notice of Appeal is filed, see Adetoma vs. Edet (2001) 3 NWLR (Pt. 699) 186; and Nwabueze vs. Nwora (2005) 8 NWLR (Pt. 926) 1 at 18.

It should be noted that an appeal against an interlocutory decision must be one with leave of the Court, where the ground of appeal are based on mixed law and facts or facts alone. Then, what is the distinction between a final decision and an interlocutory decision? It is well settled that in considering whether a decision is interlocutory or a final one the determining factor is whether the judgment or order has finally disposed of the rights of the parties. If it does, then the order is final order. If it does not, then it is interlocutory. See Akinsanya vs. U.B.A. Ltd. (1986) 4 NWLR (Pt.35) 273; and Universal Trust Bank Plc. & Ors. vs. Odofin (2001) 8 NWLR (Pt. 715) 296 at 301.

The decision of the trial Court following the Motion No: MHC/90m/98 is an interlocutory decision made pending determination of the substantive suit. Appeal against such interlocutory matter therefore can only be important if leave is sought and obtained from either the trial Court or the Court of Appeal. An interlocutory orders made following the said Motion are orders made between the commencement of an action, in this case, suit No: MHC/158/96, and its final determination hence the rights of the parties, therefore, have not finally been disposed of. The order shall be discharged when the main suit is determined.

In this appeal, it is the exercise of the discretion of the trial Court in favour of the Respondent (in granting the orders), that is the subject of complaint, and the grounds of appeal emanating therefore cannot be based on law alone no matter how it is drafted or couched to make it appear like a ground of law. The grounds have to be considered with the particulars to decided whether it is a ground of law or fact or mixed law and fact. See Ogbechie vs. Onochie (1986) 2 NWLR (Pt. 23) 484.

However, where there is an exercise of a Court’s discretion, the impression would be that the principles, and the way and manner in which a Court will exercise its discretion in a particular case is a question of fact, and whether or not, the Judge exercised the discretion judicially or judiciously is a question of mixed law and fact. The latter becomes applicable in this case to the way and manner the learned trial Judge exercised his discretion in granting the Motion.

Where the appeal here is of a mixed of law and fact, leave of Court must be sought and obtained from the trial Court or the Court of Appeal in accordance with the constitutional provision since it is against an interlocutory order of the lower Court. See Acqua Ltd. vs. Ondo State Sport Council (1988) 4 NWLR 622. In this case, the Supreme Court decided that Section 242(1) of the constitution 1999 which creates rights of appeal to Court of Appeal is meant to cover appeal in interlocutory decision of the High Court. Failure of the Appellant to take this step could render the appeal incompetent and must be struck out.

It is settled law also that where any proceedings are begun other than as provided by the rules such proceedings are incompetent. See Saleh vs. Monguno (2003) 1 NWLR (Pt.801) at 221.

I have carefully gone through all the grounds of appeal formulated in the appeal against the orders made by the trial Court and in my view though they were drafted as grounds of law, these grounds are the grounds that depict an error in law and in fact, i.e. a mixture of law and fact. Ground 1 is of fact though tagged error in law, but what is quoted from judgment makes it a mixture of error of law and fact. Ground 2 is referred as error in law, but is purely of fact, while the particulars, some are conclusion and some are argumentative. Ground 3 is like ground 2. Ground 4 is also like grounds 2 and 3. Therefore I cannot and, I find it difficult to single out a ground of appeal which does not include a mixture of law and fact. They are affected by default of not obtaining leave which have therefore rendered them incompetent. By virtue of the provisions of Order 3 Rule 2(7) of the Court of Appeal Rules (supra) I strike out all grounds of appeal as incompetent.

As stated earlier, this appeal is against an interlocutory decision made on 28/3/98. The appeal against the decision was filed 28/10/98. Computing the period of delivering the interlocutory decision which is 28/3/98 and the time the appeal was filed which is 28/10/98, it seems that the appeal was filed over 6 months after the ruling appealed against was delivered by the trial Court.

Section 25 (2)(a) of the Court of Appeal Act 1976 (as amended) prescribed the period for bringing an appeal, i.e. giving Notice of Appeal or Notice of Application for leave to appeal in civil cause and matters. It provides the period within which appeal could be made as follows:-

(i) Fourteen days where the appeal is against an interlocutory decision; and

(ii) Three months, where the appeal is against a final decision.

In any of the two situations mentioned above, a person wishing to appeal outside the stated statutory periods must first seek and obtain leave. It is a condition precedent to the validity of such appeal.

Having filed the appeal over six months after the expiration of the statutory period, the Appellant obviously needs leave of this Court before filing his appeal. This is a condition precedent to the validity of this appeal.

The Appellant in his Brief of Argument filed on 7/2/2000 on page 2 paragraph 1.06 made mentioned that he sought leave of the trial Court which leave was granted to him on 26/9/98. Neither the record of the lower Court submitted to this Court nor the record of this Court did contain any evidence that leave was granted to him to this Court. However, I have however spotted on Motion appealed dated 10th July, 2001 and filed in this court on 24/7/2001 in which the Appellant prayed for the following orders:-

(i) For extension of time within which to apply for leave to appeal against the ruling of the Hon. Justice E. N. Kpojime of Benue State High Court in suit No: MHC/90m/98 delivered on 20/3/98.

(ii) Leave to appeal against the ruling.

(iii) Extension of time to appeal against the ruling.

(iv) An Order that the record of appeal in Appeal No: CA/J/14/2000 already submitted to this Court and now before this Court, Appellant’s Brief of Argument filed on his behalf on 7/3/2000 and the Respondent’s Brief of Argument filed on 24/3/2000 all before this Hon. Court, to be claimed properly filed.

Records of this Court however showed that the Motion was struck out on 27/5/2005 for lack of diligent prosecution. By the provisions of Order 4 Rule 2 (supra) when time is so extended a copy of the order granting such extension of time shall he annexed to the Notice of Appeal. Subsequently to other Motion was filed and moved seeking for similar reliefs by the Appellant. The conclusion I reach at this stage is that the instant appeal was filed out of time without leave of this Court sought and obtained. In this circumstances this appeal is incompetent and I accordingly so hold. It is accordingly struck out under Order 3 Rule 2 (7) of the Court of Appeal Rules 1981.

It is the admonition of the Supreme Court that in a situation like the one under consideration, this lower Court is obliged to consider the case on its merit in the event that the Supreme Court finds fault with reasoning and conclusion of this Court. But I must point out that in this particular instance, that exercise, as observed by ODUYEMI J.C.A in National Assembly vs. President (2003) 9 NWLR (Pt. 824) 104 at 143, would amount to making a case for the Appellant which he did not make for itself.

In final conclusion, the appeal having been adjudged incompetent due to absence of leave, it must be struck out and it is hereby so struck out. Cost assessed at N10,000.00 is hereby awarded against the Appellant and in favour of the Respondent.

Other Citations: (2005)LCN/1778(CA)