Akpeh Nnaemeka & Ors V. Christopher Ozoekwe & Anor (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.C.A.

On the 12-10-2010, the Customary Court Nteje (then Awkuzu) granted the respondents leave to appeal against its decision in a civil suit to the High Court of Anambra State Pursuant to this leave, the respondents herein filed appeal No.OT/1A/2010 in the High Court of Anambra state at Otuocha on 13-10-2010.

The appellants herein filed appeal No. OT/2A/2010 at the same High Court complaining against the order of the Nteje Customary Court granting the respondents herein leave to bring appeal No.OT/1A/2010.

On 28-2-2011, the High court dismissed the preliminary objection of the appellants herein to the competence of Appeal No. OT/1A/2010 and granted the application of the respondents herein for an order extending the time for them to file their written argument of appeal No. OT/1A/2010 as appellants in that appeal.

By a motion on notice filed on 12-9-2011 in this Court, the appellants herein applied for an order extending the time within which they can seek leave to appeal against the above 28?2-2011 interlocutory decisions of the trial Court and leave to appeal against the said

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decisions made in Appeal no, OT/1A/2010. A copy of the notice of appeal they intended filing was attached to and exhibited with the application.

By a motion on notice filed on 27-9-2011 in the trial Court, the appellants herein applied for an order staying further proceedings in appeal No. OT/1A/2010 pending the determination of the appeal sought to be brought in this Court by means of the motion on notice in CA/E/200M/2011 filed in this Court and appeal No OT/2A/2010 pending in the trial Court. The application is supported by an affidavit of 14 paragraphs, and accompanying exhibits and written address. The respondents herein filed no counter affidavit and rather opposed the application on grounds of law. After considering the arguments in respect of the application, the trial Court on 6-10-2011 refused the application, dismissing it as having failed.

Dissatisfied with the 6-10-2011 ruling of the trial Court, the appellants herein on 12-10-2011 commenced his appeal No. CA/E/268/11 by filing a notice of appeal containing five grounds for the appeal.
?
Both sides have filed, exchanged and adopted their respective briefs as follows: – appellant’s

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brief and respondents’ brief.

By a notice filed on 15-7-2014, the respondents indicated their intention to rely upon a preliminary objection to the appeal, which objection they argued in pages 3 to 7 of their brief on the ground that grounds 1, 2, 3 and 4 of this appeal are incompetent as appeal on those grounds cannot be competently commenced without leave of Court to so appeal first had and obtained because they are grounds of facts or mixed law and facts in an interlocutory appeal.

Before I delve into the merit of this appeal, let me first determine this preliminary objection to this appeal.

It is not in dispute that the 6-10-2011 ruling of the lower Court refusing the application for an order of stay of further proceedings in the pending Appeal No. OT/1A/2010 was made at an interlocutory stage of the pending proceedings. It is beyond argument that the ruling determined finally the issue of whether the application for the stay of further proceedings in appeal No. OT/1A/2010 was grantable because it foreclosed permanently the right of the parties therein to re-litigate the issue in that Court or Court of co-ordinate jurisdiction and rendered

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the trial Court or its equivalent functus officio on that issue as it could not revisit or reconsider its said ruling on that issue.

The recurring question in this kind of situation is whether a decision which finally determines an issue in a pending suit or appeal and did not determine finally the rights of the parties in the pending substantive suit or appeal is a final or interlocutory decision. Judicial opinion on this point is divided. Some have held that such a decision is interlocutory. The Supreme Court in Western Steel Works Ltd & Anor Vs lron & Steel Workers Union of Nigeria & Anor (1986) LPELR ? 3479 (Sc) held per Kazeem JSC that –
(1) A decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties (and not merely an Issue) in the case, and
(2) Where only an issue is the subject matter of an order or appeal, the determination of that Court which is a final decision on the issue or issues before it, which does not finally determine the rights of the parties…is interlocutory,
See similar decisions in Gomez & Anor V Cherubim Seraphim

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Society & Ors (2009) LPELR – 1331 (SC) Ebokam V Ekwenibe & Sons Trading Co (1999) 7 SC (pt 1) 39,The above decisions followed the decision of the Supreme Court in Akinsanya V UBA Ltd (1986) LPELR- 355(SC) which reviewed its previous decisions on the point and the tests adopted in resolving the distinction between interlocutory and final decisions.
On the other hand, the Supreme Court in Igunbor V Afolabi (2001) 11 NWLR (pt 723) 148 at 165 held that -“The determination of the question whether an order is interlocutory or final has never been one of mean difficulty. The test has been to look at the nature of the order made rather than the nature of the proceedings resulting in the order. What has to be considered is whether the order has finally determined the rights of the parties in the proceedings in issues appealed against and whether the rights of the parties in the substantive action have been finally disposed of see …? A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. On

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the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in action, It is an order, which determines some preliminary or subordinate issue or settles some steps or questions but does not adjudicate the ultimate rights of parties, in the action. However, where the order finally determines the rights of the parties as to the particular issue disputed, it is a final order even if arising from an interlocutory application. For instance, an order of committal for contempt arising in the course of proceedings in an action is a final order. See ..,? The instant case as rightly submitted by appellant’s counsel, is an interlocutory motion by the appellant to be joined as co-administrators with the respondents. The order of the Learned Trial Judge granting the application determined the rights of the parties in the application. It is an order which did not require something else to be done in answer and without any further reference to itself or any other Court of co-ordinate jurisdiction. The order of the learned trial judge is therefore a

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final order. An appeal on the said order is as of right under Section 220(1) of the Constitution 1979.”
The decision was followed by this Court in Egbuche V Egbuche (CA/E/82/2008, decision of 9-12-2013 in which it held that per Agim JCA ?It is the lack of Jurisdiction of the Court that gave the decision or made the order to revisit or review it that makes it final”.
So a final decision is one which by its nature cannot be reconsidered by the Court that rendered it. The fact that the decision was made during an interlocutory trial or hearing of an issue in a pending suit will not rob it of its character as a final decision”.

It is obvious that the trial Court lacked the jurisdiction to revisit or review its 6-10-2011 ruling refusing the appellant’s application for an order of stay of further proceedings in appeal No. OT/1A/2010.

The ruling determined the right of the appellant to have the proceedings stayed and the right of the respondent to continue the proceedings. It clearly determined the merit of that application. Since the lower Court lacks the jurisdiction to reconsider it, the appellant whose application was refused can only

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appeal to this Court against that refusal as it has sought to do by his motion No. CA/E/200m/2011 in this Court. This Court in Egbuche V Egbuche held in respect of the refusal by the trial High Court of an application to amend pleadings that “It is beyond argument that the decision of a trial Court refusing the application of a party to amend his pleadings cannot be reviewed or reconsidered by the Court that refused the application. The decision determines the merit of the application to amend and the entitlement of the applicant to such amendment. The Court that rendered it or a Court of co-ordinate status has no jurisdiction to reconsider the decision. If the applicant is dissatisfied with the decision, he can only appeal against it to a Court higher in the judicial hierarchy and with the appellate jurisdiction to entertain the appeal. Therefore I hold that the ruling of the trial Court refusing the defendant’s application to further amend the further amended statement of defence is a final decision in a civil proceeding?..?
I am bound to follow the decision of this Court in Egbuche V Egbuchethat followed the Supreme Court decision in

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Igunbor V Afolabi. I have no reason to depart from it.

The 6-10-2011 ruling of the trial Court refusing the application for an order further staying the proceedings in Appeal No. OT/1A/2010 is a final decision. But it is not a final decision of a High Court in a civil or criminal proceeding before it sitting at first instance. It is a final decision made by the High Court in exercise of its appellate Jurisdiction in an appeal to it from a decision of Nteje Customary Court in a civil suit that arose in the said Customary Court. S, 241 (1)(a) of the 1999 Constitution cannot be invoked to appeal as of right against the final decision of the High Court on an issue in an appeal to it from a case originating in a Court below it. An appeal against such a decision cannot lie as of right under any of the provisions of S. 241 (1) of the 1999 Constitution which provides that –
“An appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at the first instance.

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(b) Where the ground of appeal involves questions of law alone, decisions in any Civil or Criminal proceedings
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person;
(e) Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) Decisions made or given by the Federal High Court or a High Court—
(i) Where the liberty of a person or the custody of an infant is concerned,
(ii) Where an injunction or the appointment of a receiver is granted or refused
(iii) In the case of a decision determining, the case of a creditor or the liability of a contributory of the other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) In the case of a decree nisi in matrimonial cause or a decision or in an admiralty action determining liability, and
(v) In

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such other cases as may be prescribed by an Act of the National Assembly.”
The final decision that can be appealed against as of right under S. 241 (1) (a) of the 1999 Constitution is a final decision in any civil or criminal proceedings before a High Court sitting at first instance or in exercise of its original jurisdiction.
Since the decision is not appealable as of right under S. 241 (1) of the Constitution, it is appealable only with leave of Court first obtained by virtue of S. 242 (1) of the 1999 Constitution which provides that “subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with leave from the Federal High Court or that High Court or the Court of Appeal”.
It is not in doubt that no leave of Court to bring this appeal was first had and obtained before this appeal was filed on 12-10-2011 contrary to S .242 (1) of the 1999 Constitution.

The entire appeal is incompetent and not just grounds 1, 2, 3 and 4 of the appeal. Where the Constitution or a statute requires leave of Court to appeal against a decision, such leave to

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appeal must first be obtained before an appeal against the decision is commenced. An appeal that is legally required to be with leave, shall it filed without such leave first had and obtained is clearly incompetent and void.

In the light of the foregoing, I hold that the objection succeeds not for the reason that the decision is interlocutory or that grounds 1, 2, 3 and 4 of this appeal are of facts or mixed law and facts, but for the reason that the entire appeal is incompetent as no leave of Court to bring it was first obtained as required by S.242 (1) of the 1999 Constitution, since the decision is not appealable as of right under S.241 (1) of the same Constitution.

Having held that this entire appeal is incompetent there is clearly no need to consider its merit. But let me still consider the merits of the said appeal for whatever its worth may be.

The appellants’ raised the following issues for determination –
1. Whether the learned judge of the Court below was right in holding that appeal does not include an application for leave to appeal/trinity or that there was not appeal pending to sustain the application for stay for which he

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dismissed the appellants’ application for stay of proceedings? (Ground 1).
2. Whether the learned judge of the High Court was right in raising suo motu and for the first time in his decision or ruling without hearing from the appellants the issue that there was not proof before him of the pendency of appeal number OT/2A/2010 to warrant his staying appeal number OT/1A/20l0 pending the outcome of that appeal number OT/2A/2010. (Ground 3)
3. Whether the learned judge of the High Court was right in holding that there was not proof before him of the pendency of appeal number OT/21/2010 to warrant his staying proceedings in appeal number OT/1A/2010 (Ground 2).
4. Whether the learned judge of the High Court was right in giving preferential treatment to the respondents and/or their counsel by allowing them in oral argument despite the mandatory provision of Order 31 Rule 4 (2) of the High Court (Civil Procedure) Rules 2006 of Anambra State 2006? (Ground 4).

The respondents’ brief raised the following issues for determination-
1. “Whether the lower Court was right when it refused the Appellants’ application for stay of proceedings (Grounds 1, 2

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and 3)?.
2. “Whether the leave granted the respondents’ counsel to address the lower Court orally amounted to a preferential treatment (Ground 4).”

I will determine this appeal on the basis of the issues raised for determination in the appellants’ brief.

Let me now consider issue no. 1.

The part of the ruling of the lower Court issue no. 1 is complaining against reads thusly ? ?lt is indeed true that Section 30 of the Court of Appeal Act defines an appeal to include an application for leave to appeal. See also Order 1 Rule 2 of the Court of Appeal Rules 2002. It is equally true that a notice of appeal is filed in the registry of the Court from which the appeal emanates. What it means therefore is that where there is an application for leave to appeal against the judgment of the Court of Appeal, such an application may qualify as an appeal for the purpose of an application for a stay of execution. This is more so where the notice of appeal had already been filed in the Court of appeal Registry. In the instant case, no notice of appeal had been filed in the Registry of this Court. Even if the application for leave made to the

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Court of appeal succeeds, the applicants will still have to file the notice of appeal in the Registry of this Court. It is only after the notice of appeal had been filed pursuant to the orders of the Court of appeal that it could be said that there is a pending appeal. SEE IDRIS V AUDU (2005) 1 NWLR (PT. 908) 612. There is therefore no appeal pending before the Court of Appeal to sustain this application.”

Learned counsel for the appellant argued that by virtue of S.30 of the Court of appeal Act, the application for leave to appeal pending in this Court as appeal No. CA/E/200m/2011 can qualify as an appeal for the purpose of sustaining the application for an order to stay further proceedings in the lower Court and that the lower Court was wrong to have held that no appeal was pending in this Court to sustain the application to it for an order of stay of further proceedings in the appeal pending before it.

Learned counsel for the respondents argued in reply, relying on Order 1 Rule 5 of the Court of Appeal Rules 2011 and Omatsola V Omovie (2005) All FWLR (Pt. 263) 653 at 658, that for there to be an appeal, the notice of appeal must have been filed in

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the registry of the Court from which the appeal emanates and that the application for leave to appeal in Appeal No. CA/E/200m/2011 pending in this Court does not qualify as an appeal.

Let me determine the merit of the above arguments.

It is not in dispute that the appellants herein filed in this Court a motion on notice in Appeal No. CA/E/200m/2011 applying for leave to appeal against the 28-2-2011 decisions of the trial Court and that the said application is still pending in this Court and has not been argued, considered and granted and that it is until this application is granted and a notice of appeal is filed as prescribed by Order 6 Rule 2 (1) of the Court of Appeal Rules 2011, that an appeal against the 28-9-2011 rulings of the trial Court could be said to be pending. Since the application for leave to appeal is still pending and has not been granted and since no notice of appeal has been filed against the said rulings as prescribed by Order 6 Rule 2(1) of the Court of Appeal Rules, no appeal against them is pending in fact.
Without an appeal filed and pending, the Application to the lower Court for an order staying further proceedings in

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Appeal No. OT/1A/2010 pending “the appeal filed at the Court of Appeal, Enugu in appeal number CA/E/200/201”  is incompetent. An application for an Order of stay of proceedings pending the determination of an appeal to be competent must be preceded by the filling of a Notice of appeal. The filing of an application for leave to appeal against the rulings cannot be equivalent to the filing of a Notice of appeal in the registry of the lower Court as required by Order 6 Rule 2 (1) of the Court of Appeal Rules. The former is an expression of a desire to appeal and is an act preparatory to appealing, while the latter is the appeal.
It is beyond argument that S.30 of the Court of Appeal Act 2004 has defined “an appeal” elastically to include the act of filing a notice of appeal and the expression of the desire to appeal by acts preparatory and precedent to the filing of a notice of appeal, such as an application for leave to appeal and application for extension of time to appeal.
?It may be attractive to argue that since S.30 of the Court of Appeal Act has defined an appeal to include application for leave to appeal, an application for an order of stay of

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proceedings or execution of a Judgment pending an appeal can be anchored or predicated on a pending application for leave to appeal, when no notice of appeal had been filed. My view is that such argument cannot be valid. S. 30 of the Court of Appeal Act by defining an “appellant” as any person who desires to appeal or who applies for leave to appeal or who appeals from a decision of the Court below, recognizes the distinction between an act preparatory to an appeal and the filing of the appeal. While both are regarded as forming part of the appeal process, the actual act of appealing only takes place when the notice of appeal is filed as required by Order 6 Rule 2 (1) of the Court of Appeal Rules. Order 1 Rule 5 of the same Court of Appeal Rules defines an “appeal” as the filing of the notice of appeal in the registry of the Court below.
It is settled by case law that an application for stay of execution or proceedings so as to enable a judgment or decision in the proceedings be challenged by an appeal or other legal process cannot competently be made when the appeal has not actually been filed. It can only be validly made after the filling of the notice

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of appeal against the judgment or decision. See Dingyadi V INEC (No. 2) (2010) LPELR-952 (SC), Intercontractors Nig. Ltd. V UAC Nig. Ltd. (1988) LPELR – 1521 (SC), Deduwa v Okorodudu (1974) 6 SC & Olanyinka V Elusanmi & Anor.(1997) INMR 277, Lijadu V Lijadu (1991) 1 NWLR (Pt. 169) 627 @ 644 and Ofole V Ofole & Ors (Decision of this Court in CA/E/72/1999 delivered on …..)

In the light of the foregoing, I uphold the decision of the lower Court that there was no pending appeal to sustain the application for an order of stay of further proceedings pending appeal to this Court.

Issue no. 1 is resolved in favour of the respondents.

Let me consider issues 2 and 3 together.

Learned Counsel for the appellants argued under these issues that the lower Court’s decision refusing to stay further proceedings in Appeal No. OT/1A/2010 pending the determination of Appeal No. OT/2A/2010 because processes showing the existence and pendence of the later appeal were not attached to the application is wrong. The part of the ruling complained against here states thusly- “In this application, it was also sought to stay further proceedings in this appeal

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pending the determination of Suit No. OT/2A/2010. No process in that suit was exhibited to this application to show that there is such an appeal. Courts do not speculate on the contents of documents not before it.” (sic)

Learned Counsel for the appellants argued that the deposition in the affidavit in support of the application that Appeal No. OT/2A/2010 exists and is pending before the lower Court obviated the need to exhibit the appeal processes showing its existence, because the said deposition was not challenged or contradicted by a counter affidavit, that the said Appeal no. OT/2A/2010 was pending before the same Judge and so the Judge was duty bound to take judicial notice of it. These arguments are not valid because the basis for the prayer for an Order staying further proceedings in OT/1A/2010 pending the determination of OT/2A/2010 is stated in ground 3 for the application in the motion paper thusly “Appeal No. OT/2A/2010 is challenging the leave granted by the Customary Court pursuant to which this Appeal No. OT/1A/2010 has been brought and if the appeal in that OT/2A/2010 succeeds, it dispossess off this appeal OT/1A/2010 as same with abate

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hence it will be improper to continue with this appeal OT/1A/2010 as same is an abuse”. This ground for the application made it mandatory for the application to be accompanied by at least the notice and grounds of appeal in OT/2A/2010 and the reliefs sought therein that would show that the success of appeal OT/2A/2010 will terminate Appeal No. OT/1A/2010. This is a conclusion that can be reached only upon a consideration of the grounds of appeal and the reliefs sought in Appeal No. OT/2A/2010. Such a conclusion cannot be reached from the bare deposition that such an appeal is pending. So it is not enough to allege that the appeal is pending without placing before the trial Court the materials that support the ground for the application. The appellant did not place any materials before the Court from which it can determine if the success of Appeal No . OT/2A/2010 would render futile Appeal No. OT/1A/2010. The trial Court was therefore right when it held that it cannot speculate on the content of documents not before it. The law is settled by a long line of decisions that a Court should not speculate on what is not before it. Speculation is not a proper course of

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exercise of the judicial function of a Court. See ACB Ltd V Emostrade Ltd (2002) 4 SC (pt. II) 1.

The argument of learned counsel of the appellants under issue 2 that the issue of the absence of OT/2A/2010 appeal processes was raised suo motu by the lower Court and determined without affording the parties the opportunity to address on it is not supported by the record of this appeal which show clearly at page 18 that the issue was raised by S. O. Nworie, Learned counsel for the respondents herein during his oral address in reply to the written address of Chief I. M. Anah, Learned counsel for the applicants herein. Mr Nworie submitted that “secondly, No process relating to suit No OT/2A/2010 is before this Court. We urge the Court to dismiss this application”. So, the argument that the lower Court raised the issue suo motu has no factual basis.

In the light of the foregoing, issues 2 and 3 are resolved in favour of the respondents.

Let me now determine issue No. 4.
?
Learned Counsel of the appellants has argued that since the respondents failed to file any process including a written address in response to the ones filed and served upon them by

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the appellants, the trial Court acted contrary to Order 31 Rule 4 (2) of the Anambra State High Court (Civil Procedure) Rules 2006 in granting them leave to address it orally in reply and that the lower Court relied on their said oral argument to refuse the appellant’s application.

Order 31 Rule 4 (2) of the 2006 Anambra State High Court (Civil Procedure) Rules state thusly –
“where any party fails to file a written address or comply with the time limits set out above for filing and serving the written addresses, he will be deemed to have nothing to urge the Court and shall not be heard in oral argument.”

It is not in dispute that the respondents herein failed to file a written address in response to the written address of the appellants herein in support of their application for stay of further proceedings.

Learned Counsel of the respondents argued in reply that the lower Court in the exercise of its discretion and in the interest of justice granted leave to the respondents’ counsel to address it orally, that the record of the proceedings of 28-9-2011 show that the two motions filed on 27-9-2011 were served on the respondents on 28-9-2011

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and was argued same day, that after the oral address of the respondents. Learned Counsel of the appellants made a reply that the appellants have not shown the injustice they have suffered by the grant of leave to the respondents to address orally and that the trial Court judiciously and judicially exercised its discretion in granting the said leave to the respondents counsel to address it orally.

Let me consider the merits of the above arguments.

I think that the decision of the lower Court in giving the respondents leave to address it orally is justified by the justice of the peculiar circumstances of the case and that decision and the oral address should not in the said circumstances and by virtue of Order 5 Rule 1 (2) of the 2006 Anambra State High Court (Civil Procedure) Rules be nullified.

The record of the proceedings of 28 9 2011 show that Learned Counsel for the appellants herein informed the Court thusly- “I have only just now served Mr. Nworie with two motions I filed yesterday”. Learned Counsel for the respondents then said “We are ready to proceed”. Learned Counsel for the appellants then moved his motion. Thereafter, the Learned

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Counsel for the respondents stated thusly – “We oppose the application and we seek the leave of the Court to reply orally”. There is no indication that the appellants opposed or did not oppose the respondents? application. The Court granted it. Learned Counsel for the respondents made his oral reply and thereafter, Learned Counsel for the appellants replied on points of law without more.

I think that the fact that the appellants’ motion and accompanying affidavit and address were just served on the respondent on 27-7-2011, the day before the hearing of the motion, the fact that the respondents avoided waste of time by not invoking their right to more and sufficient time to react to the said processes, the fact that the appellants did not oppose the respondents application for leave to orally address, justify the decision of the lower Court to allow oral address contrary to the said Order 31 Rule 4 (2). The appellants herein have not shown why that decision and the oral address it allowed should be nullified by this Court for non-compliance with Order 31 Rule 4 (2). The appellant, who did not object to the application, replied to the respondents’ oral

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address without complaining that it violates the said Order 31 Rule 4 (2). The appellants have not shown or even alleged that the decision to allow the oral address and the oral address caused them injustice in any way. By virtue of Order 5 Rule 1 (2), the said decision and oral address are mere irregularities that cannot be vitiated until the Court declares them nullities. The said Order 5 Rule 1 (2) state thusly –
“where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The judge may give any direction as he thinks fit to regularize such steps.”

In any case, this issue No. 4 and the ground 4 of this appeal from which it is derived and the arguments of the issue are incompetent because the issue is being raised here in this Court for the first time as a fresh issue without any prior leave of Court to so raise it as a fresh or new issue on appeal. Being an issue of non-compliance with the Anambra

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State High (Civil Procedure) Rules 2006, it ought to have been timeously raised immediately after the respondents applied for leave to reply orally. This was not done. The appellants did not raise it even when they replied to the respondents’ oral address. So, throughout the proceedings in the lower Court leading to this appeal, it was not raised. Order 5 Rule 2 (1) of the same rules limit the time to which the issue can be raised before the complaining party takes any fresh step after becoming aware of the irregularity. It is settled law that a party is deemed in law to be aware of such irregularity in a process upon having notice of the process. In our present case, the application for leave to orally address was made in the presence of appellants’ counsel in open Court. Therefore he was at that time aware that the application ran contrary to Order 31 Rule 4 (2), yet he did not object to it, did not complain about the leave to address orally and the address until judgment.
The appellants are now raising it in this appeal for the first time, when they had reasonable opportunity to do so in the lower Court during the hearing of the application for stay of

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further proceedings. Order 5 Rule 2 (1) bars them from bringing such complain after they had taken steps by replying to the oral address of the respondents. Assuming their complaint was not caught by the limitation of time in Order 5 Rules 2 (1) of the said 2006 Rules, the appellants still need leave to raise it as a fresh issue in this appeal. Since no such leave was obtained before ground 4 of this appeal was filed, then the said ground of this appeal is incompetent and void. It is settled law that a fresh issue of procedure cannot be raised on appeal without the leave of Court to raise it. A fresh issue raised on appeal without leave of Court is incompetent and void.
Since ground 4 of this appeal is incompetent, it follows that issue No. 4 deriving therefrom and the arguments thereunder are equally incompetent.

It is also settled law that issues for determination in an appeal can only validly be raised from competent grounds of appeal. An issue for determination derived from an incompetent ground of appeal would be incompetent. Equally arguments in an appeal must be based on competent issues and grounds and would be incompetent if the issues and or

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grounds upon which they are based are incompetent.

For the above reasons, issue No. 4 is resolved in favour of the respondents.

On the whole, this appeal fails as it lacks merit. It is accordingly dismissed. The ruling of the High Court of Anambra State sitting at Otuocha on 6 -10-2011 in Suit No. OT/1A/2010 per J. I. Nweze J, is hereby upheld and affirmed.

The appellants shall pay costs of N100, 000.00 to the respondents.

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Other Citations: (2016)LCN/8990(CA)

Panabiz International Ltd V. Addidon Nig Ltd & Anor (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. 

 The present appeal is a fall-out of the judgment of the High Court of Akwa Ibom State, holden at Eket Judicial Division, delivered on July 7, 2009 in suit No.HEK/148/2005. By the said judgment, the Court below, coram, Ita G. Mbaba, J; (as he then was) granted some of the declaratory reliefs sought by the 1st Respondent against the Appellant.

Dissatisfied with the judgment in question, the Appellant filed the notice of appeal thereof in the Court below on July 28, 2009.

BACKGROUND FACTS
The genesis of the appeal dates back to December 18, 2005.
That was the date on which the 1st Respondent filed the instant suit vide a writ of summons in the Court below, seeking various declaratory and injunctive reliefs against the Appellant and the 2nd Respondent, jointly and severally. By the statement of claim thereof, filed along with the writ of summons, the 1st Respondent claimed the following reliefs against the Appellant and 2nd Respondent, jointly and severally:
(a) A declaration that the sole Distributorship of panasonic range of office Automation products granted

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to the plaintiff by the 1st defendant is still subsisting.
(b) A declaration that the 1st Defendant has caused the breach of the Distributorship Agreement by entering into the Plaintiffs territory and signing an agreement with the 2nd Defendant thus carrying out services that were in the exclusive preserve of the plaintiff while the Distributorship agreement was still subsisting.
(c) A declaration that the 2nd Defendant induced the 1st Defendant to breach the said Distributorship Agreement when the 2nd Defendant was aware that the plaintiff was the sole Distributor and Representative of, the 1st Defendant in Akwa Ibom State for sales, Installation, Repairs and Maintenance of Panasonic photocopiers.
(d) A declaration that the plaintiff relied on the Representation and the contract made by the 1st Defendant to the plaintiff that the plaintiff was her sole distributor in Akwa Ibom State and that the 1st defendant would not file a single or individual tender with the 2nd defendant and therefore upon the breach thereof, the plaintiff suffered consequential Losses and Damages for the breach of that Representation and Contract.
(e) An order

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restraining the 1st & 2nd Defendants from further breach of the Distributorship Agreement or an order of specific performance of the Distributorship Agreement.
(f) An order restraining the 2nd Defendant from giving effect to the service online Agreement Number A1944038 entered between 1st and the 2nd Defendants or an order nullifying the said agreement thereto,
(g) An order for the payment of Two Billion Naira (N2,000,000,000.00) by the 1st & 2nd Defendants jointly and severally as damages for the breach and consequential breach of the said Distributorship Agreement.
(h) An order for the payment of special damages by the 1st Defendant of Two Million, Nine Hundred and Forty-nine Thousand, One Hundred and Thirty-nine Naira (N2,949,139.00) being the balance amount due and owing to the Plaintiff as debt due as commission for the supply of Panasonic Machines and consumables for the period between March and April 2005.
(i) An order for the payment of special damages of Five Hundred and Fifty-one Million, seven Hundred and sixty-Thousand, Seven Hundred Naira only (N551,768,700.00) being the commission that could have accrued to the

3

plaintiff in 50 years for the supply of equipment and photocopier consumables.
(j) An order for the payment of special damages of Two Hundred and Eighty Million, Eight Hundred and Fifty Thousand Two Hundred and sixty-eight Naira only (N280,850,268.00) being the amount of anticipated increase in commission payable to the plaintiff for the projected period of 50 years for the supply of equipment and photocopies consumables.
(k) An order for the payment of special damages of six Hundred Million Naira only (N600,000,000.00) being the anticipated income the plaintiff would have earned in the maintenance of the machines as provided in the maintenance contract.
See pages 1st – 12 of record of appeal.

Parties filed and served their respective pleadings. The case proceeded to full trial. In the course of the trial, the 1st Respondent presented a lone witness, in the person of Idongesit Ekpenya, the 1st Respondent’s Managing Director, who testified as PW1 and tendered various exhibits. The Appellant (1st Defendant) equally called a lone witness in the person of Jaja Apribo Dick and tendered various exhibits. The 2nd Respondent (2nd Defendant) deemed

4

it expedient to rest the case thereof on that of the Appellant (1st Defendant).

At the conclusion of the trial, counsel to the parties filed and adopted their respective written addresses. Consequent whereupon, the Court below delivered the vexed judgment to the conclusive effect, thus:
I hold therefore that the 1st Defendant breached the contract it had with the plaintiff, when it failed to pay for services rendered to it (1st Defendant) as per the claims in Exhibit 23, which was not disputed. Upon entering into a conflicting contract with the 2nd Defendant, though with the ratification of the plaintiff, as per Exhibit 22.
Accordingly, this case succeeds only on that point and the plaintiff is entitled to damages against the 1s Defendant as per the claims (relief 34(H) of the Statement of Claim) that is to say the sum of Two Million, Nine Hundred and Forty-Nine Thousand, One Hundred and Thirty-nine Naira (N2,949,139,00) only, being the balance of the amount due and owing to the plaintiff as debt due as commission for the supply of panasonic machines and consumables at the period March and April, 2005.
I therefore award Five Million Naira

5

(N5,000,000,00) to the plaintiff against the 1st defendant, as general damages.
I do not think the 2nd defendant should be held responsible for the sad end of the relationship between the plaintiff and the 1st defendant in the service of the 2nd- defendant.
Accordingly the 2nd Defendant is not liable.
The 1st Defendant shall pay interest on the judgment debt at the rate of 10% per annum from the date of the judgment until same is fully liquidated.
The 1st Defendant shall also pay the cost of this action assessed at Twenty Thousand Naira (N20,000.00) only.
See pages 278-320, especially at 319-320 of the Record of Appeal.

By the notice of appeal thereof filed on July 20, 2009, the Appellant has urged upon this Court to set aside the vexed judgment of the Court below in question , for allegedly being against the weight of evidence as adduced at the trial.

The record of appeal was initially transmitted on December 7, 2009, but deemed properly transmitted on February 3, 2015.
It was further deemed properly transmitted on May 11, 2016.
The Appellant’s brief of argument was filed on July 2, 2010, but deemed properly

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filed on November 8, 2010. It was equally further deemed properly filed on May 11, 2016.

On June 22, 2016, when the appeal finally came up for hearing, the Appellant’s learned Counsel adopted the said brief of argument thereof and urged the Court to allow the appeal. The brief spans a total of 10 pages. At page 5 thereof, three issues have been formulated for determination, viz:
(1) whether the learned Judge discharged the duty to evaluate evidence properly in this case when he held that the plaintiff is the sole and exclusive distributor of the 1st respondent’s products in Akwa Ibom State of Nigeria.
(2) whether the award of the sum of N2,949,139.oo can be justified having regard to the evidence before the Court.
(3) whether the award of general damages of N5m (Five Million Naira) was based on the guiding principles of the award of general damages.

The issue No. 1 is canvassed at pages 5-7 of the Appellant’s brief, to the effect that the trial Court failed to evaluate the evidence adduced by the Appellant at the trial.

It was submitted, that the finding of fact that the plaintiff enjoyed the status of a sole exclusive distributor

7

is not supported by evidence at the trial. Therefore, there is no evidence for the Court below to conclude that the plaintiff enjoyed the status of a sole distributor. Further submitted, that where the Court fails in ascribing probative value or arrived at a wrong conclusion from accepted credible evidence, the appellate Court must interfere with such evaluation and findings of fact. See AGBEJE vs. AJIBOLA (2002) 2 NWLR (Pt. 750) L48; TSOKWA OIL MARKETING CO. VS. BON LTD. (2002) 11 NWLR (pt.777), @ 196; AWARA vs. ALALIBO (2002) 18 NWLR (pt. 799) 552 E-H.

The Court is urged upon that this is a proper case for the Court to interfere with the findings of fact.

The issue No. 2 is canvassed at pages 7 – 8 of the Appellant’s brief. Referring to Paragraph 34(H) of the Statement of Claim (for special damages of N2,949,139.00) vis-a-vis the evidence of the DW1, it was submitted that the burden of proof was wrongly placed on the 1st Defendant to fault the schedule of payment. The law is that, the onus of proving every allegation of fact is on the plaintiff, who proves his case on a preponderance of evidence and balance of probabilities. He cannot rely on the

8

weakness of the opponent’s case. see AGBI vs. OGBEH (2006) 11 NWLR (pt. 990)131 paragraph B.

It was thus contended, that the award of N2,949,130.00 cannot be justified on the basis of the evidence adduced in Court.

The issue No. 3 is argued at pages 8 – 9 of the said brief, to the effect that the award of N5,000,000.00 to the plaintiff as general damages, was borne out of extraneous consideration rather than legal evidence of probative value. See ARTRA IND. LTD. VS. NIGERIA BANK FOR COMMERCE & INDUSTRY (1997) 1 NWLR (Pt. 483) 598 paragraph A; OMONUWA vs. WAHABI (1976) 4 SC @ 37; UHUNMWANCHO VS. UHUNMWANGHO (1992) 2 NWLR (pt. 226) 709 @ 711.

Conclusively, the Court is urged to allow the appeal and set aside the judgment of the Court below, as it is against the weight of evidence adduced at the trial.

On the other hand, the 1st Respondent/Cross-Appellant filed brief thereof on March 3, 2012. Pages 3 18 of the brief in question relate to the 1st Respondent’s argument in respect of the main appeal. At page 4, the Appellant’s three issues have been adopted for determination of the main appeal.

The issue No. 1 is canvassed at

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pages 7-10 of the 1st Respondent’s brief, to the effect that Appellant’s argument on the issue is bereft of a critical analysis and understanding of the decision of the Court below. it was submitted, that the documentary evidence, i.e. Exhibits 6, 11, 12, 13 and 16, were not contradicted by the Appellant, and upon the Court below based its findings, stand credible, sound and cogent.

Further submitted, that the Appellant’s submission in Paragraph 4.4 of the brief thereof, is untenable and cannot stand in the face of Exhibits 6, 11, 12 and 13, which were not controverted by the Appellant. That oral or parol argument cannot be used to controvert the contents of documentary evidence. See UNION BANK OF NIG. LTD. VS. PROF. ALVERT OJO OZIGI (1994) NWLR (pt. 333) 385) @ 400; OGBE VS. ASADE (2009) 18 NWLR (pt. 1172) 106 @ 138 – 139; SAPO VS SUNMONU (2010) 11 NWLR (Pt. 1205) 374 @ a03; et al.

The Court is urged to discountenance the Appellants argument, and resolve the No. 1 in favour of the 1st Respondent in the affirmative.

The issue No. 2 is argued at pages 10 – 14 of the said brief.
Paragraph D.11 at pages 10 – 11 of the brief, is to the effect

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that the Appellant did not formulate any issue in respect of Ground 2 of the Notice of Appeal. That ground should therefore be deemed abandoned, and strike same out. See OLAIYA VS. STATE (2010) 3 NWLR (Pt. 1181) 423 @ 433; DUZU VS. YUNUSA (2010) 10 NWLR (Pt. 1201) 80 @ 104; et al.

Arguing issue No. 2 on the merits, it is submitted that the Appellant’s argument in Paragraph 4.8 of the brief thereof, about the 1st Respondent’s bill goes to no issue, as it was never raised at the trial Court, and nor was the leave of Court sought. Thus, the Court is urged to discountenance same.

Further submitted, the argument of the Appellant on Paragraph 4.9 of the brief thereof on DW1 on the issue of payment, should be discountenanced, as it is trite that parol (oral) evidence cannot contradict the content of documentary evidence. See UBN LTD. VS. PROFESSOR ALVERT OJO OZIGI (supra); OGBE VS. ASADE(supra) @ 131.

Putting reliance on Section 137(2) of the Evidence Act, it is contended, that the 1st Respondent, having discharged its burden of proof by tendering Exhibits 13 and 23 and given evidence in this regard, the burden shifts to the Appellant to discharge.

11

Regarding whether part-payment of debt can extinguish debt and represent full and final payment, reliance is placed on
(i) PINNEL’S case (1602) 5 co. REP. 117; (ii) BUILDERS vs. REES (1966) D & CB2 QB 617; to the effect that the payment of lesser sum cannot discharge a debtor from obligation to pay the full amount of debt, the punitive consent notwithstanding.

The Court is urged to resolve the issue No. 2 in favour of the 1st Respondent.
The issue No. 3 is argued at pages 14 – 18 of the brief. Paragraph D.20 of the brief, raises a preliminary objection, to the effect that the particular of ground 3 of the notice of appeal is argumentative in nature. Thus, it is a violation of the rules of Court and should be struck out. See ASR CO. LTD. vs. O.O. BIOSA & CO. LTD. (1997) 11 NWLR (pt. 527) 145 @ 156, et al.

In the alternative, it is submitted on the merits, that the Court below did not run contrary to the principles guiding the award of general damages; which is predicated on the discretionary power of the Court. See WAX (NIG.) LTD. vs. SANNI (2010) 3 NWLR (pt. 1181) 235 @ 251 – 252; BRITISH AIRWAYS VS. ATOYEBI (2010) 14

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NWLR (Pt.1214) 561 @ 608, et al.

The Court is urged to so hold, and resolve the issue No. 3 in favour of the 1st Respondent.

Conclusively, the Court is urged to uphold the decision of the Court below and accordingly dismiss the appeal.

On the other hand, the 2nd Respondent’s Amended brief was filed on May 9, 2016 but deemed properly filed and served on May 11, 2016. It spans a total of 6 pages. Three issues have been formulated at page 2 of the said brief, viz:
1. Whether the learned trial Judge in his judgment ever found that the 2nd Respondent was liable for breach of contract to warrant the award of damages against it.
2. Whether the Court can grant to the 1st Respondent/Cross-Appellant a relief not sought at the trial Court.
3. Whether the 1st Respondent/Cross-Appellant can raise a new issue on appeal.

The issue No. 1 canvassed at pages 2 – 3 of the brief. It was submitted, that in the totality of the vexed judgment, there is nothing to suggest that the 2nd Respondent was in any contractual relationship with the 1st Respondent as it relates to the matter in dispute. Nor was the 2nd Respondent held in the judgment to be

13

liable for breach of contract. As such, damages cannot be awarded against the 2nd Respondent for breach of contract.

The issue No. 2 is argued at pages 3 – 4 of the said brief. It was submitted, that the 1st Respondent did not lead evidence in his examination in chief or under cross-examination nor tendered any document, to show that the 2nd Respondent actually induced the Appellant to breach the contract between it and the Appellant. Thus it would be manifestly contrary to law for any Court to hold the 2nd Respondent (2nd Defendant) guilty (sic) of breach of contract.

The issue No. 3 has been canvassed at pages 4 – 5 of the brief, to the effect that the answer thereto is in the negative.
Submitted, that by asking the Court to hold the 2nd Respondent liable for breach of contract, is tantamount to making a new case and raising a new issue on appeal. See OBIEZE vs. A-G, RIVERS STATE (2002) 1 MJSC 87 @ 911 et al.

Conclusively, the Court is urged to dismiss the 1st Respondents/cross-Appellant’s case with substantial cost.

Having accorded an ample regard upon the submissions of the learned counsel, contained in their respective

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briefs of argument vis-a-vis the record of appeal, I am inclined to hold that the issues raised by the Appellant’s brief are apt for the determination of the appeal. Thus, I hereby adopt same.

ISSUE NO.1
The first issue raises the question of whether or not the Court below discharged the duty to evaluate properly in this case, when it held that the plaintiff is the sole and exclusive distributor of the 1st Respondent’s products in Akwa Ibom State and Cross River State of Nigeria.

Regrettably, the Appellant has not deemed it expedient to indicate the ground of notice of appeal upon which the issue No. 1 is predicated, as required by the rules of Court. However, it is gleanable from the Record, that the issue No. 1 is apparently distilled from ground one, which is to the effect, thus:
GROUND ONE
The learned trial judge erred on the facts and thereby misdirected himself on the law when he held that the plaintiff was the sole and exclusive distributor of the Defendant/Appellants products in Akwa Ibom and Cross River States of Nigeria.
See page 208 of the record.

Having critically, albeit dispassionately, considered the

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vexed judgment, I am unable to uphold the Appellant’s submission under issue No.1, to the effect that the Court below failed to evaluate the evidence adduced by the Appellant vis-a-vis the 1st Respondent at the trial. The vexed judgment is contained at pages 278 – 320 of the record. Having summarized the submissions of the respective learned counsel at pages 298 – 307, the Court below deemed it expedient to identify four issues for determination, viz:
1. was the Plaintiff in a binding contractual relationship with the 1st Defendant, with regards to distributorship sales and maintenance of the 1st Defendants products in Akwa Ibom and Cross River State and in particular as relates to the sales and maintenance of the 2nd Defendant.
2. Did the Plaintiff enjoy such relationship as sole or exclusive distributor of the 1st Defendant’s products in the territory and in particular with the 2nd Defendant at the time Exhibit 22 was signed?
3. Was there any breach of contract between the plaintiff and Defendant, as a result of the contract in Exhibit 22 and is the said, contract (Exhibit 22) valid in law?
4. Is the plaintiff entitled to any of the damages or

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put differently has it proved any of the damages claimed?

Parties are ad idem, that Exhibit 1. Initiated the contractual relationship between the 1st Respondent (Plaintiff) and the Appellant (1st Defendant).
It was aptly found by the Court below, at page 308 lines 19 23 of the record, thus:
Exhibit 1 initiated the relationship between the 1st Defendant and Plaintiff, when the former appointed the latter provisionally, as distributor for the range of Panasonic office automated production marketed by the 1st Defendant in Nigeria. The area of plaintiff for distributing the said products was Cross River and Akwa lbom States.

Exhibits 2 – 5, tendered vide the PW1, are purchase orders from the 2nd Respondent to the 1st Respondent, evidencing a healthy relationship between them regarding the performance of the distributorship contract in question.

Exhibit 6 equally evidences yet another contract entered into between the 1st Respondent (plaintiff) and the 2nd Respondent (2nd Defendant) in 1999 for the maintenance of the Appellant’s (1st Defendant’s) products supplied to the 2nd Defendant. That contract (Exhibit 6) expired in

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April 2002. As rightly found by the Court below, at page 309 lines 17 – 19 of the record:
“There is therefore, no doubt that the 1st Defendant fully worked with the plaintiff to translate the distributorship contract between the plaintiff and the 1st Defendant”.

The plaintiffs sole witness, Idongesit Ekpenya, testified to the effect that after the plaintiff had stabilized its services with the Defendant, people started going to the 1st Defendant to get into the plaintiffs territory (Akwa Ibom and Cross River States) to do the same business for the 1st Defendant, but the latter declined, on the ground that the plaintiff was its sole agent in said territory. It was to that effect that the PW1 tendered Exhibit 11, which was admitted without any objection. Prior to Exhibit 11, the PW1 stated that the 1st Defendant had written to the plaintiff saying that the latter was its (1st Defendant’s) only authorized representative in Akwa Ibom and Cross River States. That was Exhibit 12. Exhibit 11 was addressed by the 1st Defendant (Appellant) on 21/10/2002 to a certain company by name Wintaba International Services Ltd. and copied to the plaintiff. Exhibit

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11 reads in part:
With reference to your letter dated 07th October 2002, we regret to inform you that we will not be able to give you spare parts and technical support for servicing of Panasonic photocopiers at Mobil producing Nigeria un limited. Also, consequent to our meeting in this office that was held with the branch manager, the management has refused you any dealership for Panasonic since the company exists in Port-Harcourt already.
The company already has its authorized dealer M/S Addidion Nigeria Limited placed at Eket and the sole authority for dealership, technical and spare parts support can be extended only to the authorized dealer mentioned herein.

What’s more, the Appellant also wrote Exhibit 12, thereby appointing the 1st Respondent as its (Appellants):
Authorized dealer/representative in Akwa Ibom State… authorized to sell and service Panasonic brands of office automation and telecommunication equipment on our behalf… We shall give them the necessary support for all after sale service and maintenance.

By Exhibit 13, it’s obvious that, there was a clear vote of confidence on the subsisting contractual

19

relationship between the Appellant and the 1st Respondent. Upon the basis of the said Exhibit 13, the Appellant elevated the status of the 1st Respondent with particular regard to the 2nd Respondent, from merely being the Appellant’s agent/distributor in Akwa Ibom and Cross River States “to that of authorized dealer … placed at Eket and Sole authority for dealership technical and spare part support…”

Most interestingly, by the said Exhibit 13, the Appellant barred all others (the Appellant inclusive) from filing tender at 2nd Respondent in Eket for the purpose of maintenance service. Thus, mindful of the clear and undisputable contents of Exhibits 11, 12 &, 13, the Court below aptly postulated thus:
It is therefore dishonest and futile for the 1st Defendant to deny giving the plaintiff the exclusive right as the sole or only authorized dealer for dealership technical and spare part support and for sale service and maintenance of the 1st defendants products (Panasonic brands of office automation and telecommunication equipment on behalf of 1st Defendant at the 2nd Defendant in Eket I therefore hold that the plaintiff enjoyed sole and exclusive

20

distributorship/service and maintenance of 1st Defendants products in the 1st Defendant and in Akwa Ibom State and that, to the knowledge of the 2nd Defendant.
See page 323, lines 3 – 6 of the record.

I think, I cannot agree more with the foregoing far reaching findings of the Court below, which said findings are obviously supported by the evidence on record. And I so hold. In the circumstances, the first issue is hereby resolved against the Appellants, in favour of the Respondents.

ISSUE NO.2:
The second issue raises the vexed question of whether or not the award of the sum of N2,949,139.00 can be justified having regard to the evidence before the Court below.
It is evident from the records, that the DW1 testified under cross examination, to the effect that Exhibit 13 was the authority given by the Appellant to the 1st Respondent to bid. He equally admitted, thus:
When we give the plaintiff authority to bid, on our behalf we usually turn round to bid on the same job depending on circumstances. The plaintiff was given authority to bid for this job. The plaintiff bidden on behalf of the 1st Defendant. We did not give notice to the

21

plaintiff to withdraw that we were bidding directly. It was not fraudulent for us to bid directly after we had authorized the plaintiff to bid and he did so on our behalf.
See page 273 of the record.

Again, under cross examination by the counsel for the 2nd Defendant (2nd Respondent), the DW1 stated thus:
Exhibit 1 was the basis of our relationship with the plaintiff. It was on provisional basis that position as per Exhibit 1, was
I can see Exhibit 13. it was not a review of Exhibit 1… yes, Exhibit 16 was an authority for the plaintiff to bid on behalf of the 1st Defendant. It was necessary for the 1st defendant to bid in this circumstance directly because we did not want to miss the bid. The 2nd Defendant did not entice the 1st Defendant to breach any agreement with the plaintiff.
See pages 273 – 274 of the record.

Thus, by bidding for the job in question, the Appellant breached the covenant expressly stated in Exhibit 13:
It is so agreed that Parabiz International Limited will not file an individual tender for the purpose of maintenance service at Mobil, Eket”.

The Appellant was required to have

22

formally terminated the contract between it and the1st Respondent before it could validly bid for and enter into the contract it did with the 2nd Respondent.
See OLALEKAN VS WEMA BANK PLC (2006) 13 NWLR (PT.998) 617 @ 625 – 6261 (2006) LPELR-2562 (SC) @ 9 – 10.

However, the above postulation notwithstanding, as rightly found by the Court below, “Exhibit 22 cannot be nullified by reason of the bad faith that brought it about. This is because the plaintiff by the conduct of its managing director (PW1) appeared to have condoned or discountenanced the defects in the way Exhibit 22 was conceived and therefore waived the plaintiff’s right to protest again.
See page 316 lines 20 – 24 of the record.

I would want to believe that the trite doctrine of PACTA SUNT SERVANDA is very much applicable to the instant case.
Invariably, the doctrine of PACTA SUNT SERVANDA denotes that agreements of a party to a contract which are not fraudulent should be observed. Such agreements should be honoured by gentlemen. See A-G, NASARAWA STATE VS. A-G, PLATEAU STATE (2012) LPELR – 9730 (SC) per Fabiyi, JSC @ 29 paragraphs A-C; (2011) 3 SC 1 @ 33, 138.<br< p=””>

</br<>

23

Indeed, the principle is well settled, to the effect that the person who signs a document shall be bound by the terms therein contained, unless he alleges non factum mistake, misrepresentation et al in contention. See UBA PLC VS. ALIMS NIG. LTD. (2007) LPELR-8740 (CA) @ 22 paragraphs E-F; EZEUGO VS. OHANYERE (1978) 6-7 SC @ 184.

In the case of ARCHBOLD EBBA VS OGODO (2000) 10 NWLR (Pt.675) 387 @ 402, the Apex Court aptly held:
“An estoppel therefore, is an admission of an extremely high and conclusive nature so high and so conclusive that the party whom it affects is not permitted to aver against it or offer evidence to controvert it.”
Likewise, in the case of IGA VS. AMAKIRI (1976) 11 SC 1 @ 12, the Supreme Court held:
If a man either expresses terms or by conduct, makes a representation to another of the existence of a state of facts which he intends to be acted upon in a certain, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is stopped from denying the existence of such a state of facts.
See also OLALEKAN VS. WEMA BANK PLC (2006) 13 NWLR (Pt. 998) 617; (2006)

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LPELR – 2562 (SC) @ 9-10 per Onu, JSC @ 9-10; A-G, NASARAWA STATE VS. A-G, PLATAEU STATE (2011) 3 SC @ 33, 138 (2012) LPELR – 9730 per Fabiyi, JSC @ 29 paragraphs A-C.

As at 2714105, when Exhibit 22 was signed, Exhibit 13 was still subsisting. Thus, the 1st Respondent was still an agent of the Appellant in Akwa Ibom and Cross River States, with the exception of Eket. The rights and obligations of the parties to Exhibit 13, therefore, remained binding up to 30/4/05.
Undoubtedly, the 1st Respondent had the right to receive the entitlements there of outstanding on the existing contract before the signing of Exhibit 22. Under relief 34(H) of the statement of claim thereof the 1st Respondent has claimed for the following relief:
34 (H) an order for the payment of special damages by the 1st defendant of two million nine hundred and forty-nine thousand one hundred and thirty nine naira (2,949,139,00) being the balance amount due and owing to the plaintiff as debt due as commission for the Supply of Panasonic machines and consumables for the period between March and April, 2005. See page 12 of the record.

The Appellant paid N729,320.00, which

25

parties ad idem agreed covered the months of January and February, 2005. Most ironically, however, that payment was predicated on the Appellant’s erroneous assumption that Exhibit 13 had ceased to be effective from 01/3/2005, when Exhibit 27 , the purported new contract between the Appellant and the 1st Respondent, was drafted. However, not surprisingly, the Court below sought otherwise:
The 1st Defendant was wrong to think that way. The 1st Defendant had a duty to satisfy that claim in Exhibit 23, the some having been due and payable as debt for services rendered the schedule having not been faulted by the 1st Defendant…The fact that the plaintiff collected the sum of N729,520.00 paid by cheque (Exhibit 24) which 1st Defendant claimed in Exhibit 28 as full and final payment for 2005, cannot be used against the plaintiff, because he was entitled to same, being part payment of his claim in Exhibit 23. See pages 318 – 319.

Not unexpectedly, soon after drawing on the cheque in question, the 1st Respondent wrote to the Appellant in Exhibit 25 on 04/8/2005 demanding payment of the outstanding balance of N2,949,139.00. It is a trite principle of common

26

law, that part payment of a debt does not automatically extinguish the (creditor’s) right to demand for the balance thereof, the plaintiffs consent notwithstanding. See the old PINNEL’S CASE (1602) 5 CO.REP 117. wherein it was aptly held:
Payment of a lesser sum on the day in satisfaction of a greater sum cannot be any satisfaction for the whole, because it appears to the judges that by no possibility a lesser sum can be satisfaction to the plaintiff for a greater sum: but the gift of a horse, hawk or robe etc, might be more beneficial to the plaintiff than the money in respect of some circumstance or otherwise the plaintiff would not have accepted it in satisfaction.
“Per Lord Cock.
Similarly, in D & C BUILDERS VS REES (1966) 2 Q. B. 617, the Court of Appeal of England was reported to have aptly held:
…. no sensible distraction can be taken between payment of a lesser sum by cash and payment of it by cheque. The cheque was given, is conditional payment. When honoured, it is actual payment. It is then just the same as, cash. If a creditor is not bound when he receives payment by cash, he should not be bound when he receives payment by cheque:

27

Per Lord Denning, MR. See also FOAKES VS BEER (1884) A APP. CASES 605

In the circumstance, I uphold the finding of the Court below, at page 319 of the record, to the effect that the Appellant breached the contract it had with the 1st Respondent, when it blatantly failed to pay for service rendered thereto as per the claims in Exhibit 23, which was not disputed upon entering into a conflicting contract with the 2nd Respondent, though with the ratification of the Appellant, as per Exhibit 22.

Thus, the second issue is hereby answered in the affirmative, and accordingly resolved against the Appellant.

ISSUE NO. 3:
The third issue raises the vexed question of whether or not the award of general damages of N5,000,000.00 (Five million naira) was based on the guiding principles of the award of general damages.

It was the finding of the Court below, at page 319 last paragraph of the record, that having held the 1st Respondent’s money in question against its will and interest and for the benefit of the Appellant, upon the breach of the said contract, the 1st Respondent would be entitled to damages, generally. The 1st Respondent

28

has prayed under relief (G) of the claim thereof for:
“(G) An order for payment of two billion naira a (N2,000,000,000.00) by the 1st and 3rd Defendants jointly and severally as damages for the breach and consequential breach of the said distributorship agreement”
See page 12 of the record.

The 2nd Respondent was not found liable or responsible for the sordid end of the contractual relationship between the Appellant and the 1st Respondent. Undoubtedly, the claim for N2 billion general damages is most outrageous, to say the least. However, I am of the considered opinion that the N5 million awarded to the 1st Respondent as general damages against the Appellant is reasonable in the circumstances of the case. And I so hold.

It is trite, that a trial Court has an unfetted discretion to assess the quantum of general damages. However, on appeal, such general damages as assessed by the trial Court, can only be varied by the appellate Court if they are shown to either so manifestly too high or extremely low. See DORT-MUND COMPANY (NIG.) LTD. VS. ELIAS (2013) LPELR-21117 (CA) @ 37 paragraphs D-F.

Most particularly, regarding breach of

29

contract as in the instant case, assessment of damages is based on the loss sustained by the injured party which loss was either in the contemplation of the respective parties, or is an unavoidable consequence of the breach. See IJEBU-ODE LOCAL GOVT VS. ADEDEJI BALOGUN & CO. (1991) 1 NWLR (pt. 166) 13: CHEVRON NIG. LTD. VS. TITAN ENERGY LTD. (2013) LPELR-21202 (CA) @ 48 – 49 paragraphs D – B.
Instructively, an award of damages is usually consequent upon a breach of contract with a view to compensating the injured party for loss naturally incurred or within the contemplation of the respective parties. Thus, where there was no such contract, an award of damages by any Court amounts to a misconception and contradiction in terms. See BEST (NIG) LTD. VS BLACKWOOD (NIG) LTD. (2011) 5 NWLR 95; (2011) LPELR-776 (SC) 1:
An award of damages usually follows a breach so as to compensate the injured party for loss following naturally and within the contemplation of the parties. Damages is attached to a breach following an enforceable contract. Where there is no such contract an award of damages by any Court is not only a misconception but a

30

contradiction in terms as such award is based on a wrong principle of law. This Court has a duty not to allow such an award to stand. Per Adekeye, JSC @ 43 – 44 paragraphs G – B.
Historically, the applicable doctrine governing the award of damages was laid down way back in the 19th Century English case of HADLEY VS BAXENDALE (1854) 9 EX.34, to the effect that damages regarding breach of contract should be such as:
(i) May fairly and reasonably be considered either arising naturally that is, according to the usual course of things from such breach itself; or
(ii) May reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.
See AFRICAN CONTINENTAL BANK PLC vs. BENEDICT O. NBISIKE (1995) LPELR-1421 (CA); (1995) 8 NWLR (PT.416); PRODUCE MARKETING BOARD VS. ADEWUNMI (1972) 1 ALL NLR (PT.2) 433 @ 438; PZ & CO. LTD. VS. OGEDENGBE (1972) 1 ALL NLR (PT.1) 202 @ 205 206; OKONGWU VS. NNPC (1989) 7 SCNJ 1904 @ 116 117; (1989) 4 NWLR (PT.115) 296.
Most interestingly, in the case of ADU PRODUCE MARKETING BOARD vs. ADEWUNMI

31

(supra), the Apex Court approvingly, alluded to the earlier decision thereof in SWISS-NIGERIA-WOOD IND. LTD. VS BOGO (1972) 1 ALL NLR (Pt.2) 433 delivered on March 3, 1970, where in it held:
The terms “general” and special damages are normally inapt in the categorization of damages for the purposes of awards in cases of breach of contract. We had occasion to point out before: See AGBAJE VS. NATIONAL MOTORS LTD. SC 25/68 dated 13th March, 1970; (1971) 1 UILR 119 and we make thee point that apart from damages naturally resulting from breach, no other form of general damages can be contemplated.
See also WILFRED ONONUWA vs. B.A. WAHABI (1976) 4 SC 37 At PP. 47 – 48; MAIDEN ELECTRONICS VS. A-G, FEDERATION (1974) 1 ALL NLR 179; IJEBU-ODE LOCAL GOVERNMENT VS. ADEDIJI BALOGUN & CO. LTD. (1991) 1 NWLR (Pt. 166) 136, at 158.

Thus, the third issue is hereby equally answered in the positive, and accordingly resolved against the Appellant.

Hence, having resolved all the three issues against the Appellant, there is no gainsaying the fact, that the appeal is grossly lacking in merits, and it’s accordingly hereby dismissed by me.<br< p=””>

</br<>

32

Consequently, the judgment of the Court below delivered on July 7, 2009 by Ita G. Mbaba (as the learned Hon. Justice then was), is hereby affirmed. The 1st Respondent shall be entitled to costs assessed at N50,000.00 against the Appellant.

By way of an epilogue, I have deemed it expedient to postulate, that the attitudinal disposition of the Appellant in the instant case could be likened to that of Shylock as characteristically depicted in the legendary William Shakespeare’s THE MERCHANT OF VENICE. Recall, Bassanio’s passionate plea to the wise young judge – PORTIA:
And I beseech you, Wrest one the law to your authority. To do a great right, do a little wrong.
Whereupon, Portia wisely resorted:
“It must not be; there is no power in Venice that alter a decree established:
It will be recorded for a precedent.
And many errors, by the same example, will rush into the state;
It cannot be.”

Most undoubtedly, for anyone to be ‘a portia man’, he must not characteristically align himself with shylock. For, as cherishingly postulated by Lord Denning, MR, the legend of all time-
To be truly a ‘Portia Man’ the lawyer

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(nay the Judge) should follow the way in which Portia avoided an unjust decree to do what Justice and equity require,
It is in this denouement that I would follow the example of Portia I too ‘am a Portia Man.
See SYNDALL VS. CASTINGS LTD. (1967) 1 QB 302.

---

Other Citations: (2016)LCN/8989(CA)

Mr. Ubi Solomon Ubi & Anor V. Mr. Patrick Otu Ubi (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. 

The present appeal is consequent upon the ruling of the High Court of Cross River State, holden at Ugep Judicial Division, delivered on October 31, 2013 in Suit No, HUG/30/2013. By the said ruling, the Court below, coram E. E. Ita, J; dismissed the Appellants’ suit seeking to set aside the consent judgment delivered in Suit No. HUG/31/2010 on October 31, 2012. Aggrieved by the said decision, the Appellants filed the notice of appeal thereof in the Court below on November 5, 2013.

BACKGROUND FACTS

On August 19, 2013, the Appellants filed the instant suit in the Court below thereby seeking against the Respondent inter alia some declaratory reliefs:

”a. An Order setting aside the purported consent judgment delivered in Suit No. HUG/31/2010 by Honourable Justice Michael Edem of the High Court of Cross River State sitting in Ugep on the 31st October, 2012 and to set down the case HUG/31/2010 for hearing on the judgments between the Claimants and Defendant in the interest of justice and fair hearing to all parties.

b. An Order declaring that by virtue of the Certificate

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of occupancy UG/11/81, the property an uncompleted storey building lying and situate at Ikom-Calabar Highway, Convent Village in Ugep, Yakurr Local Government Area of Cross River State is the bona-fide property of Late Mr. Solomon Ubi Edu which said property automatically devolved on the deceased’s estate.

c. An Order declaring that the various actions or interference by the Defendant with the subject matter and the deliberate fraud and forgery of documents in his favour to appropriate the subject matter to himself as well as his futile attempt to eject the Claimants and dispossess them of their property constitutes acts of trespass.

d. An Order awarding the sum of N5,000,000.00 only as general damages against the defendant for all the various acts of harassment, intimidation and undue interference with the subject matter.

e. Any other Order the Court may deem fit to make in the circumstance of the case.

See pages 15 – 16 of the Record.

Pleadings were filed by the respective parties. However, in the course of trial the Respondent filed an application on September 12, 2013 in the Court below, praying for the following reliefs:

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”1. AN ORDER of Court extending time within which the Applicant may file their defence and counter claim to HUG/30/2013 out of time.

2. AN ORDER of Court extending time for the Applicant to file his preliminary objection out of time.

3. AN ORDER of Court dismissing SUIT NO. HUG/30/2013 in limine for being manifestly incompetent.

4. AN ORDER of Court deeming the statement of defence and counter claim and the preliminary objection filed herein as been properly filed and served the necessary fee having been fully paid.?

See page 103 of Record.

The application was supported by a 12 paragraphed affidavit, deposed to by the Respondent himself. Attached to the said affidavit were various exhibits. Learned counsel to the parties filed their respective written addresses, which they adopted on October 25, 2013. Whereupon, the Court below adjourned to October 31, 2013 for ruling. On the said date, Court delivered the vexed ruling to the conclusive effect, thus:

”I must remind us here that I am a Judge in the High Court of Cross River State just like Hon. Justice M. Edem who entered the consent judgment. There is no allegation that the

3

judgment is a nullity to clothe me with jurisdiction to set it aside. As stated above, Hon. Justice Edem duly considered the objection of the claimant’s son in HUG/3/2010 before he entered the consent judgment. I have no jurisdiction to review that ruling. A party aggrieved by that has his remedy in an appeal.

For the above reason this action is hereby dismissed.

I award cost of N50,000.00 against the claimants.”

As alluded to above, the appeal is against the said ruling of the Court below.

The appeal having been entered on December 23, 2013, the parties proceeded to file their respective briefs of argument.

The Appellants’ brief was filed on October 16, 2014, but deemed properly filed and served on June 4, 2015. It spans a total of 15 pages. At page 3 thereof, two issues have been formulated, viz:

“1. Whether the purported consent judgment in this case is not a nullity on the face of it, entitling the trial judge in HUG/30/2013 to set it aside, being a Court of, coordinate jurisdiction and whether it was proper for the learned trial judge, to dismiss the matter at this stage without hearing before arriving of the conclusion.

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2. Whether the trial judge can rightly dismiss the suit at the stage it did as per the reasons contained in the ruling of the trial Court without first hearing same or whether a trial Court can abandon the issues or applications brought before it and proceed to dismiss a claimants case on entirely new issues not canvassed by parties?”

The issue No. 1 is canvassed at pages 4 – 7 of the Appellants’ brief. It was submitted to the effect, that the so called consent judgment is on the face of it, a nullity by its failure to incorporate therein the purported terms of settlement which ought to form the basis of the judgment.

Further submitted, that a consent judgment must possess the attributes or features of a valid judgment of Court. See WOLUCHEM VS. WOKOMA (1994) NSCC 181 @ 188. Allegedly, the consent ruling in question failed to incorporate the alleged terms of the parties thereto. Thus, such a document cannot be a valid judgment, the basis upon which a party should be deprived of his property without being heard in a fair trial.

It was contended, that once the judgment of a Court is a nullity, it can be set aside by the same judge

5

who entered it, or a Court of coordinate jurisdiction. See SACHIA VS. KWANDE LGC (1990) 5 WRN (PT.152) 551; SKENCONSULT NIG. LTD. VS. UKEY (1981) 1 SC 6; ONYEDIBE VS. MADUEKWE (2012) ALL FWLR (PT. 630) 1342 @ 1349; YAKUBU VS. GOV. OF KOGI STATE (1997) 7 NWLR (PT. 511) 66.

Further contended, that the dismissal of the Appellants’ case amounts to a denial of fair hearing. See MOHAMMED VS. OLAWONMI (1990) 2 NWLR (PT. 133) 458 @ 485; NWOKORO VS. ONUMMA (1990) 3 NWLR (PT. 136) 22 @ 31.

Conclusively, the Court is urged upon to hold that the consent judgment being challenged in suit No. HUG/30/2013 is a nullity on the face of it, entitling the trial judge to set same aside.

The issue No. 2 is argued at pages 7 – 12 of the brief, to the effect that the Court below acted completely in error in dismissing the case, see YAKUBU VS. GOV. OF KOGI STATE (1997) 7 NWLR (PT.511) 66; IFELOJU VS. KUKU (1991) 5 NWLR (Pt.189) 65 @ 78 ? 79.

Further submitted, that the Appellants’ counter affidavit and written addresses essentially pointed out the incompetence and irregularities in the Respondent’s processes. But the Court below was silent on those issues.

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That a trial Court is expected at all times to pronounce on all issues placed before it by parties. See INTERNATIONAL BEER & BEVERAGES IND. LTD. VS. MUTUNCI COMPANY (NIG.) LTD. (2013) FWLR (PT. 670) 1253 @ 1256; et al.

Conclusively, the Court is urged upon to set aside the vexed decision of the Court below, and remit the case thereto for a proper trial before another judge

?On the other hand, the Respondent’s brief was filed on December 12, 2014, but deemed properly filed and served on March 21, 2016. It spans a total of 11 pages. At page 2 thereof, three issues have been formulated for determination, viz:

1. Whether the consent judgment delivered in the absence of fraud can be set aside by the Court.

2. Whether the Appellants who were not parties in HUG/31/2010 for which consent judgment was delivered have locus standi to apply for setting aside of the judgment without first for leave a substitute the original party now deceased.

3. Whether the appeal is maintainable in the face of an application to have the appeal dismissed for want of prosecution of the appeal.

The issue No. 1 was canvassed at pages 2 – 4. In a nutshell, it

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was submitted that in the instant case, there is a written document and intention of the parties spelt out; it?s the duty of the Court to give effect thereto. See ADIELE IHUNWO vs. JOHNSON IHUNWO (2013) 8 NWLR (PT. 1357) 550 @ 556. Referring to page 61 Paragraphs 2, 3 and 4 of the record, it was contended that the parties were desirous to have the matter amicably resolved.

Further submitted, that it was the conviction of the Court below that the terms of settlement were arrived at with adidem consensus, for which reason the dissenting voice of the 2nd Appellant that featured prominently during the peace process was jettisoned.

It was contended, that there is no element of fraud involved in the terms of settlement making it a nullity capable of being set aside. That the parties to this case had chosen a mediator to be their judge and do not want to go through the regular Courts. Therefore, they cannot now object to the award on grounds of law or facts. See COMMERCE ASSURANCE LTD. VS. ALHAJI BURAIMOH ALLI (1992) 1 NSCC 556 @ 559 H-7.

Further contended, that where a judgment is made based on fraud and concealment of material fact, it’s liable

8

to be set aside. But where there is no proof of fraud established, such a judgment cannot be set aside. see ASSOCIATED DISCOUNT HOUSE LTD. VS. MINISTER OF FEDERAL CAPITAL TERRITORY (2013) 8 NWLR (pt. 1357) 493 @ 450 H-9.

The Court is urged to uphold the issue, and dismiss the appeal.

The issue No. 2 is canvassed at pages 4 – 5, to the effect that the course of justice open to the Appellants would have been to seek leave of Court to substitute the deceased claimant. This, they did not do. As such, their action before the Court below and this Court is allegedly incompetent.

The issue No. 3 is canvassed at pages 6 – 11 of the brief. It was submitted, that the appeal is incompetent robbing the Court the jurisdictional competence to entertain it. See JOHN CHUWUKA VS. NDUBUEZE GREGORY EZULIKE (1986) 12 SC 246 @ 251.

Further submitted, that it’s the law that a judgment which is a nullity can be set aside by the same Court. But in this case there is no element of fraud making the consent judgment a nullity capable of being set aside. It’s contended, that the case of WOLUCHEM VS. WOKOMA (supra) is inapplicable to this case, and should be

9

discountenanced. That where a Court makes an order setting its judgment in the absence of a clerical error of proof of fraud, the order will become a nullity. See ASSOCIATED DISCOUNT LTD. VS. MIN. OF FCT (supra) @ 501 H-9. Thus, this Court cannot be invited to set aside its valid judgment without proof of fraud, concealment of facts or clerical errors.

Responding to issue 2 of the Appellants, it was submitted that though not conceding that the ruling in HUG/30/2013 is mistaken, it is not every mistake or error in a judgment that would determine an appeal in favour of the Appellant for appeal being allowed. That what is important is for the Court to decide if the judgment is correct and not whether the reasons for the judgments are correct. see PRINCE ABUBAKAR AUDU VS. AG. FEDERATION (2013) 8 NWLR (PT.1355) 175 @ 190 H-20.

Conclusively, the Court is urged to dismiss the appeal.

The Appellants’ reply brief filed on April 8, 2016, but deemed properly filed on April 20, 2016 spans a total of 17 pages. By the said reply brief, the Court is urged upon to accordingly disregard the Respondent’s argument, allow the appeal and accordingly set aside the

10

so called consent judgment entirely as being a nullity.

Having considered the submissions of the learned counsel, contained in their respective briefs vis-a-vis the record of appeal as a whole, I am inclined to adopt the two issues canvassed by the Appellants in the brief thereof for determination, anon. However, I have deemed it expedient to deal, first and foremost, with the second issue because of the fundamental question of denial (breach) of fair hearing raised therein.

ISSUE NO. 2

The second issue raises the fundamental question of whether the Court below rightly dismissed the suit at the stage it did without first hearing same.

Instructively, the term consent judgment denotes a judgment entered pursuant to the mutual consent of the respective parties in the suit. Thus, by the very nature thereof, a consent judgment is fundamentally a contractual agreement between the respective parties. In effect, a consent judgment constitutes a final decision of the Court which can only be appealed against, with the leave of the Court. See WOLUCHEM. VS. WOKOMA (1974) S SC 153 @ 166; (1974) LPELR-3502 (SC); OJORA Vs. AGP OIL PLC (2005) 4

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NWLR (PT.916) 515; RACE AUTO SUPPLY COY. LTD. VS. AKIB (2006) 6 SCNJ 98; (2006) 6 SC 1 @ 17.

In WOLUCHEM VS. WOKOMA (supra), the Apex Court held:

”The rule is that actions may be settled by consent during the trial. Usually such settlement is a compromise and, in order to have a binding effect on the parties, it is imperative that it should have the blessing of the Court. Settlement between the parties may be described as a contract whereby new rights are created between them in substitution for, and consideration of, the abandonment of the claim or claims pending before the Court. When the Court moves and takes action as agreed upon by the parties, it becomes a consent judgment. In such a situation, the Court may give judgment, or make an order of discontinuance or may order a stay, in so far as the circumstances of the case may permit.

Per Ibekwe, JSC (as he then was) @ 19-20, Paragraphs E-F.

The far-reaching fundamental objective of a consent judgment is not farfetched. As pontificated upon by Lord Herschel, L.C more than a century ago:

”The truth is a judgment by consent is intended to put a stop to litigation between the parties

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just as much as is judgment which results from the decision of the Court after the matter has been fought to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgment and were to allow question that were really involved in the action to be fought over again in a subsequent action.”

See IN RE SOUTH AMERICA AND MEXICAN COMPANY EXPERTE BANK OF ENGLAND (1885),CH .37 @ 50 referred to with approval in RACE AUTO SUPPLY CO. LTD. vs. AKIB (2006) 6 LPELR-2937 (SC).

In the case of RACE AUTO SUPPLY COY LTD Vs AKIB (supra), the Supreme Court authoritatively held thus:

”In line with this definition where the parties before a Court have agreed on how their dispute should be determined and ask the Court to enter judgment by consent and in accordance with their terms of settlement and the Court orders with their consent that a judgment be entered, the product is a consent judgment. In this regard it is necessary to point out that a consent judgment or order is as effective in law in respect of all the matters which here in settled as any other judgment or order arrived at after the matters are

13

fully fought out, to the end in a full trial. Per Mohammed, JSC @ 17 (as he then was).”

The principle is equally well settled to the effect, that no consent judgment or order has the slightest operation or effect whether by way of estoppel or otherwise, against a third party or any of the parties who is not shown to have consented to it.

However, it’s most inconceivable that one of the parties consenting to a consent (compromised) judgment should be at liberty to contend in subsequent proceedings between the same parties, that he is not bound by the judgment or order to which he had previously consented. See ALABI VS. ADESEYE (1972) LPELR 3134 (SC); (1972) ALL NLR 692 (1972) 8 – 9 SC 15 Per COKER, JSC @ 18 – 19 Paragraphs F – A.

In the instant case, the terms of settlement upon which the consent judgment inquisition was predicated are contained at pages 61 – 63 of the Record of Appeal. By the said terms of settlement, the committee of 8 notable people of Ugep that reconciled the disputing parties are to the following effect:

”1. whereas when this case came before his Lordship, Honourable Justice Michael Edem on the 16th day of April, 2012 he

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graciously acceded to an application made by Barrister Okoi Ofem Obono-Obla (hereinafter referred as Mediator) that he be granted leave to reconcile the claimant and the Defendant (hereinafter referred to as parties) who are from the same family so that the bond of love and brotherhood which prevailed in the family would not be permanently destroyed by a protracted litigation.

2. subsequently the Mediator constituted a committee which consists of Obol Eyong Jarvis, Obol Lekom of Unebu, Ijom, Ugep; Chief Christopher Iyam Egu, Traditional prime Minister of Lebmpakom, Ijiman, Ugep, Chief Sylvanus Uno Ubna chief Samuel Ekuta of Letampankom; Chief Otu Onen Eyong of Letampankom; Mr. Ottoh Obono-obta and Emmanuel Hastings (Secretary) to assist him in the onerous responsibility of reconciling the parties and settling amicably the issues in controversy between them.

3. The committee visited and interviewed the Obot Kepon of Letekom, Ikpakapit, Obol Bassey Okoi and Solomon Ubi Edu (Claimant); Patrick Otu Ubi (mni) (Defendant).

4. The Parties recognize and fully appreciate the leave granted the Mediator by the Honourable Court to intervene and peacefully

15

resolve the issues in controversy between the parties in the suit aforesaid.

IT WAS THEREFORE RESOLVE AS FOLLOWS:

1. The claimant, Mr. Solomon Ubi Edu is recognize the henceforth accorded the title of the Leader of the Ubi Edu Family of Letekom of Ikpakapit, Ugep, Yakurr Local Government Area of Cross River State of Nigeria.

2. The claimant solemnly and sincerely from the bottom of his heart regrets his mistaking in instituting suit No. HUG/31/2010 against the Defendant who is his Nephew.

3. The claimant implores the Defendant, Mr. Patrick Otu Ubi (mni) to forgive and forget.

4.The Defendant acknowledges the tremendous contributions towards his education from Secondary School to the University made by the Claimant and declared that the Claimant shall continue to remain his “Father? and benefactor.

5. The Claimant, Mr. Solomon Ubi Edu resolved to withdraw Suit No. HUG/31/2010 from the High Court of Justice, Ugep on the next adjourned date of the matter which is Wednesday the 16th day of May, 2012, and regrets all inconveniences his action or inaction may have caused members of the Family.

6. It was resolved that the

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property (an uncompleted storey Building Situate along the Ikom-Calabar Highway, Covent Village, Ugep) which is the subject matter of suit No.HUG/31/2010 be recognized, kept and held as memento in honour of the memory of the Benefactor of the Ubi Edu Family, late Ete Out Ubi Edu in recognition and appreciation of his tremendous and immense contribution towards the development of the said family.

7. The claimant, Mr. Solomon Ubi Edu hereby handover the management of the said building to the Defendant (hereinafter to be called and referred as Chief Otu Ubi Edu’s House) to the Defendant Mr. Patrick Otu ubi, mni.

8. The claimant, Mr Solomon Ubi Edu undertook to restore and promote the respect and brotherly love hitherto existing in the Ubi Edu Family and to this end the family shall convene and regularly hold meetings with their sons and daughters.

See pages 61 – 63 of the record

Consequent whereupon, on October 31, 2012, the Court below delivered the ruling in question to the following effect:

”It is a comprehensive masterpiece complete with a resolution and schedule/addendum as well as list of witnesses and they are 28 who witnessed the

17

signing festival. Indeed a classic in its own right. A colourful galaxy of 28 wise men including a Traditional Prime Minister could not have been wrong. They could not have offered themselves for want of gainful engagement.

This reminds me of a catchy caption in a restaurant that this food must be good, ten thousand flies would not have been wrong. The difference is that those wise men were no flies but Iroko and caterpillar of Ugep earth shakers fame.The claimant and three of his sons featured prominently. The schedule is duly signed by the Mediator, Barrister O.O. Obla.

The transaction was read and interpreted into Yakurr. All the parties perfectly seemed to understand before endorsing. Paragraphs 2 and 3 of the schedule refer. The claimant volunteered to thumb print. It was his option. Paragraph 4 of the Schedule speaks and speaks in eloquent Clarity.

The general acceptance, arrival and restoration of peace were signed, sealed and delivered by the ritual of water drinking and sprinkling of the same on the palms.

Paragraph 8 of the Schedule completes the good news thus:

“This act of the hitherto detractors or

18

antagonists drinking from the same cup of water symbolized reconciliation and sheathing of sword under the tradition and customary law of Yakurr’.

The last, final and most determinant of it all was the resolution of the claimant to withdraw the suit from the Court.

Not taking chances or anything for granted, which is not in my belief system and idiosyncrasy, I have taken a second critical look at the terms of settlement proper. It is duly endorsed by the claimant, Defendant and the mediator. The chief witness to this act is obot Eyong Jarvis who himself did his own endorsement.

I am wheretofore, satisfied and convinced that a terms of settlement in its highly concentrated and undiluted philosophy was voluntarily and with ad idem consensus arrived at by the parties, this I find and hold, I stand by them till the contrary is proved.

And so the latter day seeming dissenting voice in the settlement orchestrated by a junior son of the claimant, Solomon Ubi Edu Jnr. of all people is not and can never be a forensic contrary but a lazy afterthought blowing in the side winds after the terms of settlement was duly signed and filed. Besides, it

19

is customary that a junior son can neither be heard against nor uproot what his senior had planted. I jettison his so called dissenting voice.”

Pages 108 & 109 of the Record

Instructively, by way of a preliminary objection, the Respondent raised four issues in the written address thereof for determination, viz:

1. whether this case does not constitute abuse of the legal process.

2. Whether the respondents have locus standi to bring this action not having sought leave of concert to substitute ?the original claimant”

3. Whether the respondents are not stepped from bringing this action, judgment having been delivered on the mater (sic)

4. whether this Court lacks the jurisdiction to entertain this matter.

See pages 111 – 113 of the record.

Having reviewed the record vis-a-vis the submissions of the learned counsel to the respective parties, the Court below made some far-reaching findings in the vexed ruling to the following effect:

Upon being served with the processes herein the defendant filed a preliminary objection contending that the issues herein careers judicata (sic) the present consent judgment.

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I must remind us hence that I am a Judge in the High Court of Cross River State just like Hon. Justice M. Edem who entered the consent judgment. There is no allegation that the judgment is a nullity to clothe me with jurisdiction to set it aside. As stated above, Hon. Justice Edem duly considered the objection of the claimants done in HUG/31/2010 before we entered the consent judgment. I have no jurisdiction to review that ruling. A party aggrieved by that judgment has his remedy in an appeal.”

Instructively, it is an established principle, that once a judgment or order is proven to be a nullity, it can be set aside ex debito justiciae by the Court which made the judgment or order. See SKEN CONSULT NIGERIA LTD. Vs. UKEY (1981) 1 SC 6; ONYEDIBE Vs. MADUEKE (2012) ALL FWLR (PT. 630) 1342 @ 1349.

Undoubtedly, in the instant case, the Appellants, allegations were predicated substantially on fraud and misrepresentation, which if proved would have the effect of annulling the consent judgment in question, yet, the Court below in its wisdom held in the vexed ruling thereof thus:

“There is no allegation that the judgment is a nullity to clothe me with

21

jurisdiction to set it aside.?

See page 239 lines 19 – 21 of the record.

As postulated above, the vexed ruling was predicated upon the Respondent’s preliminary objection to the competence of the suit. The said objection, by way of a motion on notice, is contained at pages 103 – 106, and 111 – 113 of the record. On the other hand, the Appellants’ reply thereto is contained at pages 161 – 164 and 167 – 175 of the same record.

Respondent raised a total of four issues in the [Applicant’s] written address thereof, viz:

1. whether this case does not constitute abuse of the legal process.

2. whether the respondents have locus standi to bring this action not having sought leave of Court to substitute the ongoing dormant

3. whether the respondents are not stopped from bringing this action judgment having been delivered on the mater (sic)

4. whether this Court lacks the jurisdiction to entertain this matter.

See page 111 of the record.

Ironically, however, the Court below in its wisdom failed to address the above threshold issues that the Respondent passionately urged upon it to determine in the preliminary objection

22

thereof. Not surprisingly, the Respondent raised as a second threshold issue in the brief thereof to the effect:

”Whether the Appellants who not parties in HUG/31/2010 for which consent judgment was delivered have the locus standi to apply for the setting aside of the judgment without first applying for leave to substitute the original party non deceased.”

Hence, flowing from the above postulations, it?s obvious that the failure by the Court below to address those salient threshold issues on the merits has resulted in denying the respective parties the right to fair hearing in the case. And it?s the law, that such an irregularity resulting in a blatant denial of fair hearing to any party renders the entire proceedings of the Court a nullity. see OKOYE Vs NIGERIA CONSTRUCTION COY. LTD. (1991) 6 NWLR (pt. 1999) 511 @ 594. MOHAMMED V SOLA WONMI (1990) 2 NWLR (PT. 133) 458 @ 485; NWOKORO VS. ONUMMA (1990) 3 NWLR (PT. 136) 22 @ 31.

In the circumstance, the issue No. 2 ought to be, and it?s hereby, resolved in favour of the Appellants.

?ISSUE NO.1

The first issue raises the vexed question of whether or not the purported

23

consent judgment in this case HUG/30/2013 is not a nullity on the face thereof, thereby entitling the Court below to set it aside, being a Court of coordinate jurisdiction.

As alluded to above, it’s a trite fundamental principle, that once the judgment or order of a Court is a nullity, the party who is affected by such judgment or order is entitled, ex debito justiciae, to have it set aside by the Court of competent jurisdiction. See ONYEDIBE vs MADUEKWE (2012) ALL FWLR (PT.630) 1342 @ 1349; SKEN CONSULT NIGERIA LTD, VS. UKEY (1981) 1 SC 6; YAKUBU VS. GOVERNOR OF KOGI STATE (1997) 7 NWLR (PT. 571) 66 @ 71; SACHIA VS. KWANDE LOCAL GOVERNMENT COUNCIL (1990) 5 NWLR (PT. 152) 551.

In my considered opinion, having already resolved the second issue in favour of the Appellants, there is no gain-saying the fact, that the first issue has become a sheer academic exercise and rather spent. It is obvious from the record, as alluded to under issue No. 2, that the failure of the Court below to hear the case on the merits has amounted to a denial of the right to fair hearing to which the Appellants were entitled under Section 36 (1) of the Constitution of the

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Federal Government of Nigeria 1999 as amended. Consequent where upon, the totality of the proceedings of the Court below are rendered a nullity and liable to be set aside. See OTAPO VS. SUNMONU (1987) 2 NWLR (Pt.58) 587; WILSON vs. A-G OF BENDEL STATE (1985) 1 NWLR (Pt.4) 572; OJENGBEDE vs. ESAN (LOJA-OKE) (2001) LPELR- 2372 (SC); (2001) 12 SC (Pt. 11) 1. In the circumstance, the only viable option left to the Court is to remit the case to the Court below for hearing on the merits by a different judge. Thus, the issue No. 1 is hereby resolved against the Appellants.

Hence, in the circumstance, having resolved the second issue in favour of the Appellants, the appeal ought to be, and it?s hereby, adjudged to have partially succeeded, and it is hereby so allowed in part.

Consequently, the case (No. HUG/30/2013) is hereby remitted to the Chief Judge of Cross River State to reassign same to another judge of the State High Court for hearing on the merits.

Parties shall bear their respective costs of litigation.

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Other Citations: (2016)LCN/8987(CA)

Hon. Stephen Bassey & Ors V. Sat Guru Maharaji & Anor (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

The present appeal is against the ruling of the High Court of Cross River State, delivered on April 24, 2014 in suit No. HC/490/1998. By the said ruling, the Court below struck out the Appellants’ (Defendants’) counter-claim on the ground that it was “incompetent and incurably defective by reason of the non-existence of a valid writ of summons in support thereof?.

BACKGROUND FACTS
By the Amended Statement of Claim thereof filed in the Court below on June 3, 2002, the Respondents (Plaintiff’s) claimed against the Appellants (Defendants) the following reliefs:
i. N500,000 for trespass,
ii. N50,000.00 for lease of the land from 1996 till Judgment or valuation.
iii. An Order of perpetual injunction restraining the defendants by themselves, Agents or any Privies from entering into the said place or Parcel of land perpetually.
See pages 1 – 4 of the Record.

Pleadings were filed and served by the respective parties. The case proceeded to trial. However, on April 10, 2013, the Court below ordered for a trial de novo, consequent upon the re-assignment of the

1

case to another judge.

Prior to the commencement of hearing de novo, the Appellants raised a preliminary objection to the competence of the Amended Writ of Summons of May 18, 2011, which made the Appellants parties to the suit.
The objection in question was argued on February 11, 2014. The Court below delivered the ruling the following day, to the conclusive effect thus:
In the final analysis, I shall hold this objection of the 3rd and 4th defendants on the validity of the amended writ of summons of the claimants of 18th May, 2011, to be valid and properly taken and so valid in law and would make the following orders to wit:
ORDERS
1. Amended writ of summons issued by the claimants of the 18th day of May, 2011 hereby declared incompetent as the same is not signed by either the claimants or their legal practitioners.
2. I make no order as to costs.
See pages 86 – 92 of the record.

The two sets of Defendants then asked the Court to set down their respective counter-claims for hearing. Where upon, the Court below ordered the parties to address it on the competence of the counter-claims, in view of the ruling striking out the

2

writ of summons.

On April 29, 2014, the Court below delivered the vexed ruling, to conclusive effect, thus:
In the circumstance, I am unable to agree with the defendants in this case that their counter-claims can even with the writ of summons of the claimants having been declared incompetent. Therefore and in the circumstance, I will make the following declarations in this case on the point, to wit:
1. I hereby declare that the counter claim filed by the defendants in this case is invalid and unsustainable in law the writ of summons having been declared incompetent.
2. The same is accordingly hereby struck out as it is incompetent and incurably defective by reason of the non-existence of a valid writ of summons in support thereof.
3. I make no order as to costs.
See pages 95 – 101 of the Record.

?The Appellants’ notice of appeal was dated December 9, 2014, but filed on December 23, 2014. The record of appeal was transmitted on 04/2/2015, but deemed properly transmitted on 20/4/2016. The Appellants’ brief was filed on 12/02/2015, but deemed properly filed on 21/4/2016. It spans a total of 8 pages. At page 2 of the said brief, a

3

sole issue is canvassed, viz:
WHETHER THE TRIAL COURT WAS IN THE CIRCUMSTANCES HEREIN JUSTIFIED TO STRIKE OUT THE COUNTER CLAIMS OF THE DEFENDANTS/APPELLANTS AND THEREBY DENY THEM OF HEARING ON MERIT.

The sole issue is canvassed on pages 5 – 7 of the brief, to the effect that the Court below made a grave mistake, for what it struck out was the amended writ of summons. That, the writs of summons filed since 1998 is different from the Amended writ of summons filed on 18/5/2011.

Further submitted, that after striking out the amended writ of summons, the Court was under an obligation to call upon the Appellants to prove their claims. This is because if amendment fails, the original process subsists. See Order 26 Rule 1 of the High Court (Civil Procedure) Rules, 2008.

It was contended, that the order striking out the amended writ of summons did not affect the earlier processes filed and proceedings of Court. Some of the earlier processes filed are the Appellants’ counter claims, which in law, are separate and distinct from the Respondents’ claims and cross-actions. See Order 17 Rules 20(1) and 21(2) of the High Court (Civil Procedure) Rules;

4

LADUNNI VS. WEMA BANK LTD. (2011) 4 NWLR (Pt. 1236) 44 @ 66 ? 67; BALOGUN VS. YUSUF (2010) 9 NWLR (Pt. 1200) 515; OGBONNA VS. A-G, IMO STATE (1992) 1 NWLR (Pt. 220) 647 @ 675; AGBAHOMO VS. EDIMEGBE (1999) 2 SCNJ 94.

Allegedly, the Court below was not grounded by the authority of AGBAREH vs. MIMRA (2008) 2 NWLR (pt.1071) 378, which allows it to refer to its own file and ruling of 12/12/2014, as to what it struck out.
Therefore, the Appellants have been denied fair hearing enshrined in Section 36 of the 1999 of the Constitution. And that the delay of hearing of the case filed since 1998 up to 2014, when Respondents withdrew same, was itself an abuse of Court process. See NEWS WATCH COMMUNICATIONS LTD. VS. ATTA (2006) 12 NWLR (Pt. 993) 144; ARUBO VS. AIYELERU (1993) 2 KLR 23; OBASI BROTHERS MERCHANT CO. LTD. VS. MERCHANT BANK OF AFRICA SECURITIES LTD. (2005) 9 NWLR (pt. 929) 117 @ 129 D – E.
The Court is urged upon to resolve the sole issue in favour of the Appellants, and accordingly allow the appeal, set aside the ruling of the Court below of 29/4/2014, and substitute an order setting the counter claims down for trial, while dismissing the

5

claim.

Contrariwise, the Respondents’ brief, filed on March 3, 2015, spans a total of 10 pages. At pages 3 – 5 a preliminary has been argued, to the effect that the ruling now on appeal was delivered on 29/4/2014, and not on 24/4/2014 as stated in the notice of appeal.

It was submitted, that the ruling was a final decision because it terminated the Appellants’ counter claims. By Section 24 (2)(a) of the Court of Appeal Act, the Appellants had 3 months to appeal against that final decision. The 3 months expired on 28th July, 2014. The Appellants’ notice of appeal was on 23rd December, 2014. Almost 5 months out of time. They did not seek extension of time before filing the notice of appeal out of time. That extension of time is a condition precedent to the filing of any notice of appeal out of time. Thus, the said notice of appeal must be struck out as its incurably bad. See UDOETTE vs. HEIL (2003) FWLR (Pt. 143) 362 @ 378 A-B; ALADE vs. OGUGUO (2007) ALL FWLR (Pt. 349) 1188 @ 1194; G. EJIOGU vs. IRONA (2008) ALL FWLR (Pt. 442) 1066 @ 1106, Conclusively, the Court is urged to strike out the appeal.

?At pages 5 – 8 of the brief thereof, the

6

Respondents have adopted the Appellants’ sole issue for determination. Submitted, in the main that, the Appellants’ submission that the Court below ought to have heard the case based on the old writ of summons is untenable. That, it is elementary that an amended process dates back to when the original process was filed. In this case, the amended writ in effect became the originating process. See OGUJUA vs IBWA (1988) 1 NWLR (Pt. 73) 658 @ 673 E – D; SPDC VS. (NIG.) LTD. VS. EAMUKUE (2009) ALL FWLR (Pt. 489) 407 @ 428 A-B; BRAITHWAITE VS. SKYE BANK PLC. (2013) ALL FWLR (Pt. 664) 39 @ 48 B – D.

It was contended, that the foundation for a counter claim is invalid writ of summons. That the Appellants’ counter claims were filed on 01/7/11 and 28/9/11 pursuant to the Amended writ of summons, and Statement of claim filed on 18/5/11. Consequently, when the Amended writ of summons was labeled incompetent, the counter claim forwarded on it became incompetent as well. See INTEGRATED MERCHANTS LTD. vs. OSUN STATE GOVT. (2011) LPELR- 8803 CA @ 9.

?The Appellants’ submission that the Respondents’ claims should have been dismissed and not struck out, is allegedly

7

incompetent as it does not flow from either the ground of appeal or the ruling of the Court below. See NYA VS. EDEM (2005) ALL FWLR (Pt. 242) 576 @ 590 G-H; UNITY BANK VS. ZANGO, ALL FWLR (Pt. 658) 912 @ 938 – 939 G-C; et al.

DETERMINATION OF THE RESPONDENTS’ PRELIMINARY OBJECTION
As alluded to above, pursuant to the notice of the preliminary objection thereof, dated and filed on March 3, 2015, the Respondents deemed it expedient to incorporate the argument regarding the objection in the brief thereof. The ground upon which the preliminary objection is predicated is that-
The Appellants appeal is (sic) filed out of time and without an extension of time being first sought and obtained to file the appeal.

However, in view of the Appellants’ learned counsel’s response in the reply brief thereof in question, it is obvious that the Respondents’ objection challenging the competence of the appeal has effectively become nugatory.
I have taken judicial notice of the fact that the Appellants’ application, filed on 16/10/15, prayed for five reliefs.

Indeed, all the five reliefs sought in the application were duly granted by this Court on

8

21/4/16. Thus, the preliminary objection no longer has any basis, and same is hereby dismissed.

DETERMINATION OF THE APPEAL ON MERITS
Having taken in to an account of the sole issue formulated by the Appellants, in the brief thereof, which were duly adopted by the Respondents, I too hereby adopt same for the determination of the appeal, anon.

THE SOLE ISSUE:
The sole issue raises the very vexed question of whether or not the Court below was justified in the ruling thereof when it struck out the counter claims of the Appellants (Defendants), thereby denying them hearing on the merits. The sole issue is distilled from the three grounds of the notice of appeal.

Regrettably, the instant case has had a very protracted historical back ground. The suit was filed in the Court below in 1998. In the ruling thereof, delivered on 12/02/14, the Court upheld the objection of the 3rd and 4th Defendants to the competence of the Respondents’ amended writ of summons, thus:
In the final analysis, I shall hold this objection of the 3rd and 4th defendants on the validity of the amended writ of summons of the claimants of 18th May, 2011, to be

9

valid and properly taken and so valid in law and would make the following orders to writ:”
ORDERS:
1. Amended writ of summons issued by the claimants of the 18th day of May, 2011 hereby declared incompetent as the same is not signed by either the claimants or their legal practitioner.
2. I make no order as to cost
Elias O. Abug
Judge
12th February, 2014.
See pages 86 – 92 of the record.

On 17/3/14, the respective learned counsel adopted their written addresses regarding the 1st and 2nd Defendants’ (Appellants’) motion, seeking to set down the counter claims thereof for hearing. The ruling was delivered by the Court below on 29/4/14, to the following conclusive effect:
In the circumstance, I am unable to agree with the defendants in this case that their counter claims can stand even with the writ of summons of the claimants having been declared incompetent.
Therefore and in the circumstance, I will make the following declarations in this case on the point to:
1. I hereby declare that the counter claim filed by the defendant in this case is invalid and unsustainable in
law the writ of summons having

10

been declared incompetent.
2. The same is accordingly hereby ordered struck out as it is incompetent and incurably defective by reason of the non-existence of a valid writ of summons in support thereof.
3. I make no order as to costs
Elias O. Abua
Judge
29th April, 2014.
See pages 95 – 101 of the record

With possible deference, the above decision of the Court below cannot be right, for some obvious reasons. It’s a trite fundamental principle, that a counter claim is essentially a distinct and independent action. Indeed, a counter claim does not even have to relate to the plaintiffs’ claim, or arise out of the same transaction. See EFFIOM VS  IRONBAR (2000) 11 NWLR (PT. 678) 344 @ 347; ANOZIA vs. AG, LAGOS STATE (2010) LPELR – 3778 (CA). As once aptly reiterated by this Court:
Most undoubtedly, a counter claim by the very distinctive nature thereof is not merely a defense to the claim of a plaintiff, but rather its substantially a cross-action. See ORAGBADE VS ONITIJU (1962) 1 ALL NLR 33 AT 36; IGE VS FARINDE (1994) 985 (PT. 284) AT 305; LUMLEY VS BROOKS (1889) 41 C H.D. 323. See TONY ANOZIA VS AG, LAGOS STATE (2010)

11

LPELR – 3778 (CA), per SAULAWA JCA @ 37 Paragraphs C – G.
Thus flowing from the foregoing authorities, it’s well settled, that a counter claim is for all intent and purposes, a distinct and separate action, although the defendant may, for the sake of circumstance and expedition, incorporate it in the Statement of claims thereof.
See OGBOMA VS AG IMO STATE (1992), 1 NWLR 647 @ 675; ODUNSI VS BAMGBALA (1995) 3 SCNJ 276 @ 286. DABUP VS. KOLO (1993) 12 SCNJ 1. ANOZIA VS. AG LAGOS STATE. SAULAWA JCA @ 38 PARAGRAPHS B – D.
In the instant case, it’s not at all in doubt, that the rules of the Court below have duly recognized a counter claim to be so considered as an independent action, and shall have the same effect as a cross – action.
Most instructively, the provisions of Order 17, Rules 20 (1) and 21 (2) of the High Court (Civil Procedures) Rules Laws of Cross River State are to the effect:
20(1)
A statement of claim or a counter claim shall state specifically the relief claimed either singly or in the alternative, and it shall not be necessary to ask for general or other relief which may be given as a judge may think just as if it has

12

been asked for.
21(2)
A defendant shall file his statement of defense, set off or counter claim, if any not later than 14 days after service on him of the claimants ongoing process and accompanying documents, A counter claim shall have the same effect as a cross action so as to enable the Court pronounce final judgment in the proceedings. A set-off must be specifically pleaded.
Thus, the fact that a counter claim has been recognized by the relevant statutes and authoritative decisions of Superior Courts of records, as a distinct and independent action, is no longer contestable.
See LADUNN VS WEMA BANK LTD (2011) 4 NWLR (PT. 1236) 44 @ 66 – 67; BALOGUN VS YUSUF (2010) 9 NWLR (PT. 1200) 515; OGBONNA VS. AG. IMO STATE (1992) 1 NWLR (PT. 220) 647 @ 675.

As alluded to above, in the instant case, the Court below in its wisdom deemed it expedient (albeit erroneously) to declare that the counter claim filed by the defendants in this case is invalid and unsustainable in law, the writ of summons having been declared in competent. See page 92 of the record.
Yet, the law is trite, that a statement of claim (or statement of defence as the

13

case may be) which has been amended with leave of Court does not cease to exist. Indeed, it still forms a vital part of the record of proceedings of the Court. Thus, the Court should not turn a blind eye thereto. See AGBOHAMOVO VS. EDUYEGBE (1999) 2 SCNJ 94; AGBAREH VS. MIMRA (2008) 2 NWLR (PT. 1071) 378.

In the circumstance, the sole issue ought to be, and it’s hereby, resolved in favour of the Appellants, against the Respondent.

Hence, having effectively resolved the sole issue in favour of the Appellants, I hereby unhesitatingly adjudge the appeal to be successful, and it’s here by allowed by me. Consequently, the ruling of the Court below, delivered on April 29, 2014, is accordingly hereby set aside. The Appellants’ counter claims are hereby remitted to the High Court of Cross River State, Calabar Judicial Division, for hearing on the merits.

Parties shall bear their respective costs of litigation.

---

Other Citations: (2016)LCN/8986(CA)

Hon. Stephen Bassey & Ors V. Sat Guru Maharaji & Anor (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

The present appeal is against the ruling of the High Court of Cross River State, delivered on April 24, 2014 in suit No. HC/490/1998. By the said ruling, the Court below struck out the Appellants’ (Defendants’) counter-claim on the ground that it was “incompetent and incurably defective by reason of the non-existence of a valid writ of summons in support thereof?.

BACKGROUND FACTS
By the Amended Statement of Claim thereof filed in the Court below on June 3, 2002, the Respondents (Plaintiff’s) claimed against the Appellants (Defendants) the following reliefs:
i. N500,000 for trespass,
ii. N50,000.00 for lease of the land from 1996 till Judgment or valuation.
iii. An Order of perpetual injunction restraining the defendants by themselves, Agents or any Privies from entering into the said place or Parcel of land perpetually.
See pages 1 – 4 of the Record.

Pleadings were filed and served by the respective parties. The case proceeded to trial. However, on April 10, 2013, the Court below ordered for a trial de novo, consequent upon the re-assignment of the

1

case to another judge.

Prior to the commencement of hearing de novo, the Appellants raised a preliminary objection to the competence of the Amended Writ of Summons of May 18, 2011, which made the Appellants parties to the suit.
The objection in question was argued on February 11, 2014. The Court below delivered the ruling the following day, to the conclusive effect thus:
In the final analysis, I shall hold this objection of the 3rd and 4th defendants on the validity of the amended writ of summons of the claimants of 18th May, 2011, to be valid and properly taken and so valid in law and would make the following orders to wit:
ORDERS
1. Amended writ of summons issued by the claimants of the 18th day of May, 2011 hereby declared incompetent as the same is not signed by either the claimants or their legal practitioners.
2. I make no order as to costs.
See pages 86 – 92 of the record.

The two sets of Defendants then asked the Court to set down their respective counter-claims for hearing. Where upon, the Court below ordered the parties to address it on the competence of the counter-claims, in view of the ruling striking out the

2

writ of summons.

On April 29, 2014, the Court below delivered the vexed ruling, to conclusive effect, thus:
In the circumstance, I am unable to agree with the defendants in this case that their counter-claims can even with the writ of summons of the claimants having been declared incompetent. Therefore and in the circumstance, I will make the following declarations in this case on the point, to wit:
1. I hereby declare that the counter claim filed by the defendants in this case is invalid and unsustainable in law the writ of summons having been declared incompetent.
2. The same is accordingly hereby struck out as it is incompetent and incurably defective by reason of the non-existence of a valid writ of summons in support thereof.
3. I make no order as to costs.
See pages 95 – 101 of the Record.

?The Appellants’ notice of appeal was dated December 9, 2014, but filed on December 23, 2014. The record of appeal was transmitted on 04/2/2015, but deemed properly transmitted on 20/4/2016. The Appellants’ brief was filed on 12/02/2015, but deemed properly filed on 21/4/2016. It spans a total of 8 pages. At page 2 of the said brief, a

3

sole issue is canvassed, viz:
WHETHER THE TRIAL COURT WAS IN THE CIRCUMSTANCES HEREIN JUSTIFIED TO STRIKE OUT THE COUNTER CLAIMS OF THE DEFENDANTS/APPELLANTS AND THEREBY DENY THEM OF HEARING ON MERIT.

The sole issue is canvassed on pages 5 – 7 of the brief, to the effect that the Court below made a grave mistake, for what it struck out was the amended writ of summons. That, the writs of summons filed since 1998 is different from the Amended writ of summons filed on 18/5/2011.

Further submitted, that after striking out the amended writ of summons, the Court was under an obligation to call upon the Appellants to prove their claims. This is because if amendment fails, the original process subsists. See Order 26 Rule 1 of the High Court (Civil Procedure) Rules, 2008.

It was contended, that the order striking out the amended writ of summons did not affect the earlier processes filed and proceedings of Court. Some of the earlier processes filed are the Appellants’ counter claims, which in law, are separate and distinct from the Respondents’ claims and cross-actions. See Order 17 Rules 20(1) and 21(2) of the High Court (Civil Procedure) Rules;

4

LADUNNI VS. WEMA BANK LTD. (2011) 4 NWLR (Pt. 1236) 44 @ 66 ? 67; BALOGUN VS. YUSUF (2010) 9 NWLR (Pt. 1200) 515; OGBONNA VS. A-G, IMO STATE (1992) 1 NWLR (Pt. 220) 647 @ 675; AGBAHOMO VS. EDIMEGBE (1999) 2 SCNJ 94.

Allegedly, the Court below was not grounded by the authority of AGBAREH vs. MIMRA (2008) 2 NWLR (pt.1071) 378, which allows it to refer to its own file and ruling of 12/12/2014, as to what it struck out.
Therefore, the Appellants have been denied fair hearing enshrined in Section 36 of the 1999 of the Constitution. And that the delay of hearing of the case filed since 1998 up to 2014, when Respondents withdrew same, was itself an abuse of Court process. See NEWS WATCH COMMUNICATIONS LTD. VS. ATTA (2006) 12 NWLR (Pt. 993) 144; ARUBO VS. AIYELERU (1993) 2 KLR 23; OBASI BROTHERS MERCHANT CO. LTD. VS. MERCHANT BANK OF AFRICA SECURITIES LTD. (2005) 9 NWLR (pt. 929) 117 @ 129 D – E.
The Court is urged upon to resolve the sole issue in favour of the Appellants, and accordingly allow the appeal, set aside the ruling of the Court below of 29/4/2014, and substitute an order setting the counter claims down for trial, while dismissing the

5

claim.

Contrariwise, the Respondents’ brief, filed on March 3, 2015, spans a total of 10 pages. At pages 3 – 5 a preliminary has been argued, to the effect that the ruling now on appeal was delivered on 29/4/2014, and not on 24/4/2014 as stated in the notice of appeal.

It was submitted, that the ruling was a final decision because it terminated the Appellants’ counter claims. By Section 24 (2)(a) of the Court of Appeal Act, the Appellants had 3 months to appeal against that final decision. The 3 months expired on 28th July, 2014. The Appellants’ notice of appeal was on 23rd December, 2014. Almost 5 months out of time. They did not seek extension of time before filing the notice of appeal out of time. That extension of time is a condition precedent to the filing of any notice of appeal out of time. Thus, the said notice of appeal must be struck out as its incurably bad. See UDOETTE vs. HEIL (2003) FWLR (Pt. 143) 362 @ 378 A-B; ALADE vs. OGUGUO (2007) ALL FWLR (Pt. 349) 1188 @ 1194; G. EJIOGU vs. IRONA (2008) ALL FWLR (Pt. 442) 1066 @ 1106, Conclusively, the Court is urged to strike out the appeal.

?At pages 5 – 8 of the brief thereof, the

6

Respondents have adopted the Appellants’ sole issue for determination. Submitted, in the main that, the Appellants’ submission that the Court below ought to have heard the case based on the old writ of summons is untenable. That, it is elementary that an amended process dates back to when the original process was filed. In this case, the amended writ in effect became the originating process. See OGUJUA vs IBWA (1988) 1 NWLR (Pt. 73) 658 @ 673 E – D; SPDC VS. (NIG.) LTD. VS. EAMUKUE (2009) ALL FWLR (Pt. 489) 407 @ 428 A-B; BRAITHWAITE VS. SKYE BANK PLC. (2013) ALL FWLR (Pt. 664) 39 @ 48 B – D.

It was contended, that the foundation for a counter claim is invalid writ of summons. That the Appellants’ counter claims were filed on 01/7/11 and 28/9/11 pursuant to the Amended writ of summons, and Statement of claim filed on 18/5/11. Consequently, when the Amended writ of summons was labeled incompetent, the counter claim forwarded on it became incompetent as well. See INTEGRATED MERCHANTS LTD. vs. OSUN STATE GOVT. (2011) LPELR- 8803 CA @ 9.

?The Appellants’ submission that the Respondents’ claims should have been dismissed and not struck out, is allegedly

7

incompetent as it does not flow from either the ground of appeal or the ruling of the Court below. See NYA VS. EDEM (2005) ALL FWLR (Pt. 242) 576 @ 590 G-H; UNITY BANK VS. ZANGO, ALL FWLR (Pt. 658) 912 @ 938 – 939 G-C; et al.

DETERMINATION OF THE RESPONDENTS’ PRELIMINARY OBJECTION
As alluded to above, pursuant to the notice of the preliminary objection thereof, dated and filed on March 3, 2015, the Respondents deemed it expedient to incorporate the argument regarding the objection in the brief thereof. The ground upon which the preliminary objection is predicated is that-
The Appellants appeal is (sic) filed out of time and without an extension of time being first sought and obtained to file the appeal.

However, in view of the Appellants’ learned counsel’s response in the reply brief thereof in question, it is obvious that the Respondents’ objection challenging the competence of the appeal has effectively become nugatory.
I have taken judicial notice of the fact that the Appellants’ application, filed on 16/10/15, prayed for five reliefs.

Indeed, all the five reliefs sought in the application were duly granted by this Court on

8

21/4/16. Thus, the preliminary objection no longer has any basis, and same is hereby dismissed.

DETERMINATION OF THE APPEAL ON MERITS
Having taken in to an account of the sole issue formulated by the Appellants, in the brief thereof, which were duly adopted by the Respondents, I too hereby adopt same for the determination of the appeal, anon.

THE SOLE ISSUE:
The sole issue raises the very vexed question of whether or not the Court below was justified in the ruling thereof when it struck out the counter claims of the Appellants (Defendants), thereby denying them hearing on the merits. The sole issue is distilled from the three grounds of the notice of appeal.

Regrettably, the instant case has had a very protracted historical back ground. The suit was filed in the Court below in 1998. In the ruling thereof, delivered on 12/02/14, the Court upheld the objection of the 3rd and 4th Defendants to the competence of the Respondents’ amended writ of summons, thus:
In the final analysis, I shall hold this objection of the 3rd and 4th defendants on the validity of the amended writ of summons of the claimants of 18th May, 2011, to be

9

valid and properly taken and so valid in law and would make the following orders to writ:”
ORDERS:
1. Amended writ of summons issued by the claimants of the 18th day of May, 2011 hereby declared incompetent as the same is not signed by either the claimants or their legal practitioner.
2. I make no order as to cost
Elias O. Abug
Judge
12th February, 2014.
See pages 86 – 92 of the record.

On 17/3/14, the respective learned counsel adopted their written addresses regarding the 1st and 2nd Defendants’ (Appellants’) motion, seeking to set down the counter claims thereof for hearing. The ruling was delivered by the Court below on 29/4/14, to the following conclusive effect:
In the circumstance, I am unable to agree with the defendants in this case that their counter claims can stand even with the writ of summons of the claimants having been declared incompetent.
Therefore and in the circumstance, I will make the following declarations in this case on the point to:
1. I hereby declare that the counter claim filed by the defendant in this case is invalid and unsustainable in
law the writ of summons having

10

been declared incompetent.
2. The same is accordingly hereby ordered struck out as it is incompetent and incurably defective by reason of the non-existence of a valid writ of summons in support thereof.
3. I make no order as to costs
Elias O. Abua
Judge
29th April, 2014.
See pages 95 – 101 of the record

With possible deference, the above decision of the Court below cannot be right, for some obvious reasons. It’s a trite fundamental principle, that a counter claim is essentially a distinct and independent action. Indeed, a counter claim does not even have to relate to the plaintiffs’ claim, or arise out of the same transaction. See EFFIOM VS  IRONBAR (2000) 11 NWLR (PT. 678) 344 @ 347; ANOZIA vs. AG, LAGOS STATE (2010) LPELR – 3778 (CA). As once aptly reiterated by this Court:
Most undoubtedly, a counter claim by the very distinctive nature thereof is not merely a defense to the claim of a plaintiff, but rather its substantially a cross-action. See ORAGBADE VS ONITIJU (1962) 1 ALL NLR 33 AT 36; IGE VS FARINDE (1994) 985 (PT. 284) AT 305; LUMLEY VS BROOKS (1889) 41 C H.D. 323. See TONY ANOZIA VS AG, LAGOS STATE (2010)

11

LPELR – 3778 (CA), per SAULAWA JCA @ 37 Paragraphs C – G.
Thus flowing from the foregoing authorities, it’s well settled, that a counter claim is for all intent and purposes, a distinct and separate action, although the defendant may, for the sake of circumstance and expedition, incorporate it in the Statement of claims thereof.
See OGBOMA VS AG IMO STATE (1992), 1 NWLR 647 @ 675; ODUNSI VS BAMGBALA (1995) 3 SCNJ 276 @ 286. DABUP VS. KOLO (1993) 12 SCNJ 1. ANOZIA VS. AG LAGOS STATE. SAULAWA JCA @ 38 PARAGRAPHS B – D.
In the instant case, it’s not at all in doubt, that the rules of the Court below have duly recognized a counter claim to be so considered as an independent action, and shall have the same effect as a cross – action.
Most instructively, the provisions of Order 17, Rules 20 (1) and 21 (2) of the High Court (Civil Procedures) Rules Laws of Cross River State are to the effect:
20(1)
A statement of claim or a counter claim shall state specifically the relief claimed either singly or in the alternative, and it shall not be necessary to ask for general or other relief which may be given as a judge may think just as if it has

12

been asked for.
21(2)
A defendant shall file his statement of defense, set off or counter claim, if any not later than 14 days after service on him of the claimants ongoing process and accompanying documents, A counter claim shall have the same effect as a cross action so as to enable the Court pronounce final judgment in the proceedings. A set-off must be specifically pleaded.
Thus, the fact that a counter claim has been recognized by the relevant statutes and authoritative decisions of Superior Courts of records, as a distinct and independent action, is no longer contestable.
See LADUNN VS WEMA BANK LTD (2011) 4 NWLR (PT. 1236) 44 @ 66 – 67; BALOGUN VS YUSUF (2010) 9 NWLR (PT. 1200) 515; OGBONNA VS. AG. IMO STATE (1992) 1 NWLR (PT. 220) 647 @ 675.

As alluded to above, in the instant case, the Court below in its wisdom deemed it expedient (albeit erroneously) to declare that the counter claim filed by the defendants in this case is invalid and unsustainable in law, the writ of summons having been declared in competent. See page 92 of the record.
Yet, the law is trite, that a statement of claim (or statement of defence as the

13

case may be) which has been amended with leave of Court does not cease to exist. Indeed, it still forms a vital part of the record of proceedings of the Court. Thus, the Court should not turn a blind eye thereto. See AGBOHAMOVO VS. EDUYEGBE (1999) 2 SCNJ 94; AGBAREH VS. MIMRA (2008) 2 NWLR (PT. 1071) 378.

In the circumstance, the sole issue ought to be, and it’s hereby, resolved in favour of the Appellants, against the Respondent.

Hence, having effectively resolved the sole issue in favour of the Appellants, I hereby unhesitatingly adjudge the appeal to be successful, and it’s here by allowed by me. Consequently, the ruling of the Court below, delivered on April 29, 2014, is accordingly hereby set aside. The Appellants’ counter claims are hereby remitted to the High Court of Cross River State, Calabar Judicial Division, for hearing on the merits.

Parties shall bear their respective costs of litigation.

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Other Citations: (2016)LCN/8985(CA)

Addidon Nigeria Limited V. Panabiz International Limited & Anor (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

 The instant cross appeal, just like the main appeal [CA/C/227/2009], is equally a fall-out of the judgment of the High Court of Akwa Ibom State in suit No. HEK/148/2005, delivered on July 7, 2009. By the said judgment the Court below, Coram Ita G. Mbaba J. (as he then was) granted some of the declaratory reliefs sought by the present Cross – Appellant against the 1st cross-Respondent. The cross – Appellant was the 1st Respondent, while the 1st and 2nd Cross – Respondents were the Appellant and 2nd Respondent in the said main appeal, respectively.

It is trite, the vexed judgment of the Court below was to the following conclusive effect :
I hold therefore that the 1st Defendant breached the contract it had with the plaintiff when it failed to pay for service rendered to it (1st Defendant) as per the claims in Exhibit 23, which was not disputed upon entering into a conflicting contract with the 2nd Defendant though with the ratification of the plaintiff, as per Exhibit 22.
Accordingly, this case succeeds only on that point and the plaintiff is entitled to damages

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against the 1st ‘Defendant as per the claims (relief 34 (H) of the statement of claim) that is to say, the sum of Two Million, Nine Hundred and forty Nine Thousand, One Hundred and Thirty Nine Naira (N2,949,139.00) only; being the balance of the amount due and owning to the plaintiff as debt due as commission for the supply of Panasonic machines and consumables for the period of March and April, 2005
Having held the said money of the plaintiff against the will and interest of the plaintiff, and for the benefit of the 1st Defendant upon the breach of the said contract, the plaintiff would be entitled to damages, generally.
I therefore, award five million (N5,000,000.00) to the plaintiff against the 1st Defendant, as general damage.
I do not think the 2nd Defendant should be held responsible for the said end of the relationship between the plaintiff and the 1st defendant in the service of the 2nd Defendant. Accordingly the 2nd Defendant is not liable.
The 1st Defendant shall pay interest on the judgment debt at the rate of 10% per annum from the date of judgment until same is fully liquidated.
The 1st Defendant shall also pay the cost of

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this action assessed at twenty thousand naira (N20,000.00) only.

See pages 278 – 320, especially at pages 319 – 320, of the record of appeal. Not unnaturally, the Cross-Appellant was equally dissatisfied with some parts of the said judgment. Thus it was granted leave and extension of time by this Court to file the notice of cross Appeal thereof on October, 4, 2010. The said notice of Cross of Appeal is to the effect thus:
GROUNDS OF CROSS – APPEAL
GROUND ONE
The learned trial judge erred in law when he held that Mr. Idongesit Ekpanya (PW1) who witnessed exhibit 22 as a witness of the 1st cross-Respondent, the cross- Appellant was liable to the contract contained in Exhibit 22 and therefore stopped grown alleging the breach of distributorship agreement contained in Exhibit 1, 11, 12, and 13.
PARTICULARS
GROUND TWO
The learned trial judge erred in law and misdirected himself after findings of facts that the 2nd Respondent induced and aided the breach of the contract of distributionship contained in Exhibit 1, 11, 12 and 13 but later somersaulted in exonerating the 2nd Cross-Respondent from liability and consequently refused and failed to award

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damages against the 2nd Cross-Respondent.
GROUND THREE
The learned trial judge erred in law when it failed to follow the principle laid down in awarding damages against the 1st and 2nd cross-Respondents having made a finding of fact that the 1st and 2nd cross-Respondents were guilty of the breach of contract.

The cross Appellant’s brief of argument was filed on 09/3/12 by Victor Ukutt, Esq. It contains a total of 16 pages. At page 6 of the said brief, three issues have been couched, viz:
(a) Whether a party who signs a contract as a witness can be liable to the obligations contained therein so as to stopped (sic) him from alleging breach of contract in respect thereof and whether the Managing Director of a company can it so facto bind a company when acting in his capacity as the managing director without boards resolution and approval. (Ground 1 of the notice of appeal).
(b) Whether the learned trial judge exercised his discretion Judicially and judiciously when after finding that the 2nd Cross-Respondent was a party to the breach of contract in Exhibit 13 but failed/refused to award damages against the 2nd Cross-Respondent in respect

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of the breach.
(Ground 2 of the notice of Cross-Appeal).
(c) Whether the learned trial judge was right when he held 1st and 2nd Respondents liable for breach or contract and laid down the principles as stated in the said contract to award damages against the Cross-respondents but failed and/or refused to follow the said principles as contained in the said contract in awarding damages against the Cross-Respondents.
(Ground 3 of the notice of Cross-Appeal.)

On the other hand, the 2nd Cross-Respondent filed a reply to the cross-Appellant’s brief on 07/2/2013. It spans six pages. At page 2 thereof, three issues have been raised, viz:
1. Whether the learned trial Judge in his judgment ever found that the Cross-Respondent was liable for breach of contract to warrant the award of damages against it.
2. Whether the Courts can grant to the cross- Appellant a relief not sought at the trial Court
3. Whether the cross-Appellant can raise a new issue on Appeal.

As alluded to above, the instant cross-Appeal is equally a fall-out of the said judgment delivered on July, 7, 2005; the subject of the main appeal. It is trite, that just a

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moment ago the judgment has been delivered by this Court resulting in dismissing the main appeal (CA/C/227/2009), and affirming the judgment of the Court below (HEK/148/2005) in question.

Most instructively, in the said judgment just delivered by this Court, virtually all the three issues postulated in the cross-Appeal by the cross Appellant were germane to the three issues that have so far been dealt with in the course of the determination of the main appeal. Thus, it’s my considered view, that to determine the three issues raised in the instant cross-Appeal would amount to a sheer wasteful academic, exercise. See ODEDO vs. INEC (2008) LPELR- 2204(SC).

It is a well principle, that Courts of law do not indulge in sheer academic exercises. Invariably, Courts restrict themselves in dealing with live and unspent issues: OYENEYE vs. ODUGBESAN (1972) 4 SC 244; NKWOCHA VS. GOVERNOR OF ANAMBRA STATE (1984) 1 SCNLR 634; CHUKWUKA vs. STATE (2011) 18 NWLR (pt.l278) 1.

Fundamentally, when a question, issue or point is said to be academic, it means that it has no real relevance or effect, That is to say, it has been spent and no longer of any probative

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value or benefit. Thus, it is no longer worth expending the precious time of the Court nay parties thereupon. See ODOMA vs. PDP (2015) LPELR-24351 (SC) per Ogunbiyi, JSC, @ 56 paragraphs F – G.
In PLATEAU STATE VS. A-G, FED. (2006) 3 NWLR (Pt. 967) 346, the Apex Court was recorded to have aptly held:
An academic issue or question is one which does not require answer or adjudication by a Court of law because it is not necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party.
Per Niki Tobi, JSC (of remarkable blessed memory) @ 419 paragraphs C – G. See also ODEDO VS. INEC (supra) per Niki Tobi, JSC @ 36 paragraphs C-G.

Hence, it’s equally my considered opinion, that the instant cross-Appeal is spent and ought to abide by the judgment in the main appeal (CA/C/227/2009) just delivered by this Court. In the circumstance, the only noble option left to this Court is to strike out the cross-appeal (CA/C/227A/2009), and same is

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hereby struck out.
Parties shall bear their respective costs or litigation.

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Other Citations: (2016)LCN/8984(CA)

Barr. Peter Offiah V. Chief Nnamdi Offiah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

RAPHAEL CHIKWE AGBO, J.C.A.

 The 1st to 3rd Respondents are plaintiffs in Suit No. HOW/133/2011 pending at the High Court of Imo State, Owerri Division. The Appellant and 4th Respondent are defendants in the suit.

The writ of summons in this suit issued on 17-5-2011. In paragraph 32 of the statement of claim filed the same date the plaintiffs claimed of the defendants as follows: –
?1. Declaration that the claimants are the authentic and recognized managers of the Estate of Late Chief Greg I. Offiah comprising of a two storey building situate at No. 25 Douglas Road Owerri Imo State, a one storey situate at No. 17 Old Aba Road Rumubiakani Port Harcourt Rivers State.
2. An order of Court on Finbank Nigeria Plc to transfer all monies so far collected on behalf of the family by Don. I. Offiah and Barr. Peter Offiah which they paid into a Finbank Nigeria Plc joint account No. 123430000285201 in their names into the now family account No. 1261060032247 with Diamond Bank Nigeria Plc in the name of Greg. I. Offiah?s children.
3. Perpetual injunction restraining Barr. Peter Offiah from collecting or

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continuing to collect rent from the tenants occupying any of the families? properties without authentication and consent of the family.?

On the 11th day of April 2011 before the issuance of the writ of summons, the plaintiffs had obtained an order from the High Court of Imo State in the following terms –
ORDER OF COURT
Upon reading through the exparte motion, the supporting affidavit, and the written argument in support of same and the reliefs sought therein and after hearing A. C. Meze, esq of Counsel for the Applicants.
THE COURT HEREBY ORDER AS FOLLOWS:
That the writ of summons and other Court processes are to issue out of Imo State for service on the 1st defendant at No 12 Akerele Street Surulere Lagos. Lagos State and the 2nd defendant at No. 93 Broad Street Lagos.
IT IS FURTHER ORDERED THAT THE WRIT OF SUMMONS are to be marked as one for service outside jurisdiction of this Court.
IT IS FURTHER ORDERED THAT the writ of summons and all other processes in this suit, be served on the 1st defendant by substituted means. That is to say by delivery of same to his office at No. 12 Akerele Street, Surulere Lagos,

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Lagos State by EMS speed post or DHL or any other recognized courier service. And on the 2nd defendant through their branch Manager or any other officer at their Wetheral road branch, Owerri, Imo State.
That such service, shall be deemed good, and proper service on the defendants/Respondents.
Return date is 11/5/2011.

The writ of summons that issued had endorsed on it ?For service out of jurisdiction.? The plaintiffs on 23-5-2011 also filed a motion on notice at the trial Court seeking an ?interlocutory injunction restraining the first defendant from collecting rent and/or continuing to act as manager of the properties of Late Chief Greg I. Offiah pending the determination of the substantive suit.?

On being served with these processes the Appellant, in a motion dated 6th May, 2011 but filed on 8th June, 2011 prayed the trial Court as follows:
?1. AN ORDER of Court setting aside the service of the Claimants/Applicants motion for interlocutory injunction dated 23rd May, 2011 filed in Court the same day, improperly served on the 1st Defendant on 2/6/2011 and fixed for hearing on 9th June 2011, on

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the ground that: –
The time between service of the said Motion on Notice on the 1st Defendant who is outside the jurisdiction of the Court and the hearing of the motion is less than 30days.
2. AN ORDER of Court setting aside or striking out the Claimants/Applicants motion for interlocutory injunction dated 23rd May 2011, filed in Court the same day, improperly served on the 1st Defendant on 2nd June 2011 and fixed for hearing on 9th June 2011, on the ground that the time between the service of the said motion on the 1st Defendant who is outside the jurisdiction of the Court and the hearing of the motion is less than 30 days.
3. AN ORDER of Court setting aside or striking out the Claimants/Applicants motion for interlocutory injunction dated 23rd May 2011 filed in Court the same day, fixed for hearing on 9th June, 2011 on the ground that two of the building, the subject matter of this suit, are situate in Rivers State and the honourable Court lacks the jurisdiction to entertain this Court.?

On the same 8th June, 2011 the Appellant filed another motion dated 6th June, 2011 praying the trial Court as follows: –

?1. AN

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ORDER of Court setting aside or striking out this suit i.e. Suit No. HOW/133/2011 Chief Nnamdi Offiah & 2 Ors V Barr. Peter Offiah & Anor for the following reasons.
(i) The writ of summons which is for service outside Imo State and within Imo State was not marked CONCURRENT as required by the Sheriffs and Civil Process Act.
(ii) The honourable Court has no jurisdiction to entertain this suit for the reason that two of the buildings, the subject matter of this suit, are situate in Rivers State i.e. at No. 117 Old Aba Road, Rumubiakani Port Harcourt Rivers State and No. 16 Old Aba Road, Rumuomasi Port Harcourt, Rivers State.?

These two motions were taken together by the trial Court and determined in its ruling of 25-4-2012 wherein the trial Court found no merit in the two applications and dismissed them. Dissatisfied with this ruling, the Appellant filed this appeal.
The Appellant raised three issues for determination to wit: –
1. Whether the writ of summons is not defective.
2. Whether the 1st to 3rd Respondents motion on notice for interlocutory injunction is not incompetent.
3. Whether the Honourable Court has

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the jurisdiction to entertain this suit.?

These issues were adopted by the 1st to 3rd Respondents. The trial Court in dealing with issue 1 set out above held that the writ of summons complied with S.97 of the Sheriffs and Civil Process Act. It went on to state that the claimant was not required to comply with S.98 of the said Act. S.98 reads: –
?A writ of summons for service out of the State or the capital territory in which it was issued may be issued as a concurrent writ with the one for service within such State or capital territory and shall in that case be marked as concurrent.?

How and why it came to the conclusion that this provision was not applicable in this case was not stated by the trial Court. What issued at the instance of the complainant was clearly a concurrent writ of summons and ought to have been so marked by the registry of the trial Court. S.98 of the Sheriffs and Civil Process Act makes it mandatory that a concurrent writ of summons shall be marked ?concurrent.? In the instant case there was a clear breach of that section and the breach invalidated the writ that issued.

?On issue 2, it is

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an accepted fact that the Appellant resides in Lagos. The offending suit was taken out of the High Court of Imo State. On 23-5-11 the plaintiffs who are 1st and 3rd Respondents filed a motion on notice at the trial Court seeking an interlocutory injunction restraining the Appellant from collecting rent and continuing to manage properties in the estate of Late Chief Greg I. Offiah pending the determination of the substantive suit. The motion paper set the date for hearing the motion as 9th June 2011. The Appellant on 6th June 2011 timeously filed a motion challenging the competence of the motion for injunction. S.95 of the Sheriffs and Civil Process Act requires 30 days between service and hearing of the motion on notice. As rightly stated by the trial Court and relying on the decision of the Supreme Court in Skenconsult (Nig) Ltd vs Secondy Ukey (1981) 1 SC.6, this non compliance with S.95 of the Sheriffs and Civil Process Act was a fundamental defect that went to the jurisdiction and competence of the trial Court. The Court however went on to rely on Universal Trust Bank Ltd vs. Dolmetsch Pharmacy (Nig) Ltd (2007) All FWLR (Pt 385) 434 to hold that as the

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motion in question sought to protect that Res from dissipation, it was competent for the Court to hear the motion. This is a complete misapprehension of the judgment of the Supreme Court in the case of Universal Trust Bank v. Dolmetsch supra. The major difference was that in that case the motion was ex-parte. It was not a motion on notice and so the provisions of S.95 of the Sheriff?s and Civil Process Act was not applicable. The time element was not there. The claimants ought to have complied with S.95 of the Act and come by way of an ex-parte application for an interim order to protect the res. The trial Court was wrong in holding that the motion on notice was competent.

Issue 3 deals with the jurisdiction of the Court to entertain the suit when the properties involved are in both Imo and Rivers States. In Balogun vs. Agbara Estate Ltd (2007) L.P.EL.R 8784 Adamu-Augi JCA (as she then was) set out the position of the law thus:
?it is well settled that the High Court of a State has jurisdiction to entertain an action arising from the administration of the estate of a deceased person who died intestate notwithstanding that the letters

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of Administration is in respect of the properties within the State while the estate includes properties outside the State.? See also Solubi vs Nwariaku (2003) 7 NWLR (pt819) 426, Amobi vs Nzegwu (2005) 12 NWLR (pt. 938) 120 and Okonyia vs Ikenga v Ors (2001) FWLR (pt53) 158. I need not say more.

This appeal succeeds in part. The writ of summons in Suit No. HOW133/2011 and the motion on notice for interlocutory injunction filed in the said suit on 23-5-2011 are hereby declared incompetent and the suit struck out.

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Other Citations: (2016)LCN/8983(CA)

Sir Friday Nwanozie Nwosu V. Dr. Sampson Uchechukwu Ogah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

SAIDU TANKO HUSAIN, J.C.A. 

This appeal is one of the several appeals emerging from the Judgment delivered at Federal high Court Holden in Abuja on the 27th June, 2015 in Suit No.FHC/ABJ/CS/71/2016 between DR. SAMPSON UCHECHUKWU OGAH VS. PEOPLES DEMOCRATIC PARTY (PDP) & 3 ORS. Coram: Hon. Justice O. E Abang.

The 2nd respondent, the Peoples Democratic Party (PDP) had on the 8th December, 2014 organized and supervised the conduct of the PDP Primaries, the purpose of which was to elect the candidate for the Gubernatorial Elections for Abia State which was conducted on the 11th April, 2015. Members of the Peoples Democratic Party (PDP) who participated in the primaries as contestants include Sir Friday Nwanozie Nwosu, the appellant, Dr. Sampson Uchechukwu Ogah, the 1st respondent, and DR. Kezie Victor Ikpeazu, the 3rd respondent among others.

The 1st respondent had cause to raise issues generally relating to the conduct of the primaries and in particular the nomination of the 3rd respondent as the candidate for Governorship election on the platform of the Peoples Democratic Party.

Apparently not satisfied with the manner the People Democratic Party (PDP) hierarchy handled his complaints, the 1st respondent headed for the court where he commenced action on the 26th March, 2015 at the Federal High Court, Umuahia as plaintiff.

By the Originating Summons (as amended) filed, first as Suit No. FHC/UM/CS/94/2015 at the said court and now Suit No. FHC/ ABJ/CS/71/2016, the Plaintiff claimed several reliefs as set out in the Originating Process as amended. I will endeavor to reproduce those claims or the reliefs sought by him at the trial court especially so that parties have made references to the reliefs in their briefs of argument. The reliefs are reflected on the printed record of Appeal at pages 190-196 particularly pages 194- 196 thus:

(1) A declaration that Dr. Okezie Ikpeazu (the 2nd defendant) was not eligible nor qualified to be nominated or to participate or take part in the gubernatorial election for Abia State conducted by the Peoples Democratic Party and her officers on the 9th day of December, 2014 which the Plaintiff, Dr. Okezie Ikpeazu (the 2nd defendant) and others participated as aspirants.

(2) A declaration that Dr. Okezie Ikeazu not being qualified to be nominated or to participate or take part in the Peoples Democratic Party Gubernatorial Party Primary Election on 8th December, 2014 is not the aspirant scored in law and on facts, the highest number of votes cast in the Peoples Democratic Party Primary election conducted pursuant to section 87(4) (B) (i) and (ii) of the Electoral Act 2010 (as amended) and part IV, Article 14 (a) of the Peoples Democratic Party (PDP) Electoral Guideline 2014.

(3) A declaration that the votes allegedly scored by Dr. Okezie Ikpeazu in the Peoples Democratic party Primary Election for aspirants to the gubernatorial election for Abia State on 8th December, 2014 are wasted votes, null, void and non of the defendants is entitled to act on the scores credited to Dr. Okezie Ikpeazu (the 2nd defendant) based on the said Peoples Democratic Party Primary Election which Dr. Okezie Okpeazu (the 2nd defendant) abinitio is not qualified to be nominated or participated in the said Primary Election.

(4) An order declaring the Plaintiff, (Dr. Sampson Uchechukwu Ogah) as the aspirant in the Peoples Democratic Party Election for aspirants conducted by the Peoples Democratic Party on 8th December, 2014 as the aspirant that scored the highest number of votes cast for aspirants in which the Plaintiff, Dr. Okezie Ikpeazu and others participated as aspirants pursuant to section 87(4) (B) (i) and (ii) of the Electoral Act and Article 14 (a) of the Peoples Democratic Party Electoral Guideline for 2014.

(5) An order that the plaintiff being the aspirant that scored the highest number of lawful votes cast in the Peoples Democratic Party Primary election for gubernatorial aspirants in Abia State conducted on 8th December, 2014, it is the Plaintiff that is entitled to be nominated and is the nominated candidate of Peoples Democratic Party in the Gubernatorial election in Abia State for the 2015 general election schedule to take place on 11th April, 2015, pursuant to Section 87(4)B(i) and (ii) of the Electoral Act 2010 (as amended) and article 14 (a) of the Peoples Democratic Party Electoral Guideline 2014

(6) An order pursuant to section 87(4)B(i) and (ii) of the Electoral Act 2010 (as amended) and Article 14(a) of the Peoples Democratic Party Electoral Guideline 2014 for the 1st defendant (Peoples democratic Party) to submit the name of the plaintiff to the 3rd defendant (Independent National Electoral Commission) as the Gubernatorial candidate of People Democratic Party, in the gubernatorial election for Abia State in the 2015 general election schedule for 11th April 2015 and for the 3rd defendant (Independent National Electoral commission) to accept the name of the plaintiff as the candidate of the Peoples Democratic Party for the 2015 gubernatorial election in Abia State.

(7) An order mandating the 3rd defendant (INEC), pursuant to 87(4) B (ii) and 34 of the Electoral Act 2010 (as amended) to accept and to publish the name of the plaintiff as the candidate of Peoples Democratic Party for the gubernatorial Election for Abia State in the 2015 general election fixed for 11th April, 2015.

(8) In the event that the above suit is not determined before the conduct of the general election in 2015 to the gubernatorial Election for Abia State then a consequential order that the plaintiff is the candidate of the 1st defendant in the 2015 gubernatorial election in Abia state pursuant to Section 87 (4) B (i) and (ii) of the Electoral Act and article 14 (a) of the PDP Electoral Guideline 2014 is the person entitled to the Certificate of Return (in the event the election is won by Peoples Democratic Party) in the election for the office of Governor of Abia State fixed for 11th April, 2015.

(9) An order that the Certificate of Return for the election to the gubernatorial election for the Abia State in the event that the election is won by the 1st defendant (Peoples Democratic Party) be issued to the Plaintiff as well as all entitlements of the plaintiff as the elected Governor of Abia State of Nigeria upon a favourable determination of the above suit in favour of the plaintiff.

(10) A declaration that the information supplied by Dr. Okezie Ikpeazu in Form CF001 and sworn to by Okezie Ikpeazu in the affidavit submitted to the 3rd defendant (INEC) by the 2nd defendant) (Dr. Okezie Ikpeazu) pursuant to section 31 (2) of the Electoral Act 2010 (as amended) is false.

(11)An order pursuant to Section 31 (4) (5) and (6) of the electoral Act 2010 (as amended) disqualifying the 2nd defendant (Dr. Okezie Ikpeazu from contesting the gubernatorial election for Abia State as the candidate of the Peoples Democratic Party.

(12) AND upon the candidate of the Peoples Democratic Party, an order compelling the 1st and 3rd defendant to replace or forward the name of the Plaintiff as the candidate of PDP or the candidate of the People Democratic Party returned in the gubernatorial election for Abia State in the event the election is won by People Democratic party or order that the name of three plaintiff be the candidate of the 2nd defendant in the 2015 general election conducted, to be conducted or conducted by the 3rd defendant.

(13) An order that at all material times since the conduct of the Peoples Democratic Party Election on 9th December, 2014 to the date of delivery of the Judgment of this court, he remained and shall remain the candidate of the Peoples Democratic Party in the 2015 gubernatorial election

It is important to state here that the appellant at the inception of the case not a party to the proceedings at the Federal High Court, Umuahia. But following the order made on the 7th July, 2015 the appellant, Sir Friday Nwanozie Nwosu was joined as the 4th defendant to the Suit on the application earlier made by him. This application, a Motion on Notice is on the record at pages 98 – 110 of the printed record of Appeal.

As a consequence to the order joining the appellant the court below on the said date also made an order and directed on the 1st respondent to amend his originating papers ostensibly to reflect the appellant as a party and indeed as the 4th defendant to the Suit. The appellant like other defendants, upon the receipt of the Summons (as amended) contested the Suit and in the course of hearing, by way of Motion on Notice filed by him, he sought for an order striking out the suit on account of the same not being competent and the suit being an abuse of Judicial process in the light of the existence of the Suit which he said was earlier in point of time and filed by him as Suit No.FHC/OW/CS/191/2015 and which the 1st respondent was a party.

Those objections notwithstanding, the trial court overruled him and proceeded to deliver Judgment on the 27thJune, 2016 granting the prayers the 1st respondent had sought and the further made certain consequential orders as at pages 1312-1313 of the printed record, vol. 2 as follows:-

“1. Consequential orders is hereby made to give effect to the Judgment that the plaintiff Dr. Sampson Uchechukwu Ogah is the candidate of the People’s Democratic Party in 2015 gubernatorial election in Abia State and is the person entitled to the Certificate of Return in the election for the office of Governor of Abia State of Nigeria for the elections held on 11th April, 2015

2. It is hereby ordered as a consequential relief that Independent National Electoral Commission, the 3’d Defendant herein shall forthwith issue Certificate of Return to the Plaintiff Dr. Sampson Uchechukwu Ogah as Governor of Abia State for the election held on 11th April, 2015 and restore all entitlement to him as the elected Governor of Abia State. Dr. Okezie Ikpeazu is hereby ordered to vacate office as Governor of Abia State. Cost of N100,000.00 is hereby awarded in favour of the plaintiff payable by the defendants jointly and or severally I so hold”

Not satisfied with the decision or Judgment and order of the trial court, the appellant has appealed to this court. He filed three Notices of Appeal.

The first is the Notice of Appeal dated and filed on the 29th June. 2016, barely two (2) days after the delivery of Judgment. In it is incorporated 9 (nine) Grounds of Appeal with all the particulars of error or misdirection provided as per the printed record of Appeal at pages 1339- 1347, vol. 2.

The second, that is the Notice of Appeal dated the 11th July, 2016 and filed on the 12th July, 2016 is subsumed at pages 1-15 of the supplementary record of appeal transmitted to this court on the 25th July, 2016. The said Notice contains 17 (Seventeen) Grounds of Appeal together with their particulars.

The third Notice of appeal, also incorporated in the same supplementary record of appeal at pages 16-30, has 17 (seventeen) Grounds of Appeal and particulars. I will stop here for a while and resume later on the question as to which among the three Notices of Appeal, the appellant has relied on. This is in the light of the objection taken by counsel for the, 1st respondent. It suffices to say for now that briefs of argument were filed and exchanged wherein counsel formulated a number of Issues for determination in their respective briefs of argument.

In the brief of argument dated and filed on behalf of the appellant on 26th July, 2016 the following 5 (five) issues were distilled at pages 3-4 thus;-

Issue 1; Locus Standi

Whether in the circumstances of this case the learned trial Judge was wrong to hold that the 1st respondent has the locus standi to institute the suit at the lower.

Issue 2: Abuse of Court Process

Whether suit No.FHC/ABJ/CS/71/2016 filed on 26/3/2015 by the 1st respondent and Suit No. FHC/OW/CS/191/2015 filed by the Appellant on the 2nd March, 2015 and served on the 1st respondent on the 11th day of March, 2015 and on the 11th day March, 2015 are not between the same parties, the same subject-matter and on the same issue for the 1st respondent’s present suit to constitute an abuse of Court Process and thereby rendered it incompetent and deprived the trial court the Jurisdiction to entertain the Suit. Ground 1, 2, 3, 8 and 9.

Issue 3: Incompetence of the suit

Whether the amended Originating Summons filed on 9th October, 2015 and served on the appellant on 19th February, 2016 after the expiration of the time limited by law for filing and service of the said Originating process is incompetent and thereby deprived the trial Court of its jurisdiction to entertain the suit. Grounds 5, 10, 12, 13 and 17 Issue.

Issue 4: Estoppel and Waiver

Whether from the conduct, express writing and affidavit evidence of the 1st respondent which were placed before the trial court, the court below was wrong to overlook the issue of estoppels and waiver properly canvassed by the appellant against the 1st respondent and consequently enter judgment in favour of the 1st Respondent. Ground 4.

Issue 5: Award of cost

Whether the learned trial Judge was wrong to dismiss the Motion on Notice dated 12th February, 2015 and strike out the subsequent preliminary Objection filed by the appellant in the circumstance of this case and to award cost of N30,000.00 against the appellant on the ground that the Motions were without merit.

Although the 1st respondent similarly distilled 5 (five) issues at pages 8- 9 of his brief as arising for determination in this appeal, he has also raised some preliminary points of concern in the same brief

Issues identified by 1st respondent in his brief for determination in this appeal are:

1. Whether the Appellant who accepted the result of the Peoples Democratic Party primary election conducted on 8th December, 2014 for aspirants that participated in the gubernatorial primary election with name and score of the 1st Respondent contained therein is right to contend that the 1st Respondent had no locus standi to file Suit No. FHC/UM/CS/91/2015 now FHC/ABJ/CS/71/2016 (Ground 14 of the Notice of Appeal) speculated as dated 14th July, 2016 and filed on 15th July, 2016.
2. Whether the filing of Suit No. FHC/UM/CS/64/2015 later numbered as Suit No. FHC/OW/CS/191/2015 by the Appellant in which the 1st respondent is a party in an Originating Summons will stop the 1st Respondent from filing a suit (suit No. FHC/UMCS/64/2015 now suit No. FHC/ABJ/CS/71/2016) as an aspirant to the gubernatorial election and also pursuant to section 31 (5) of the Electoral Act 2010 (as amended) and whether Suit No. FHC/UM/CS/94/2015 now Suit No.FHC/ ABJ/CS/71/2016 constitutes an abuse of the process of the court; (grounds 1 2, 3, 8 and 9 based on speculation o that it is (the Notice of Appeal dated 14th July 2016 and filed on 15th July, 2016).
3. Whether the amended Originating Summons ordered on 7th October 2015 by the trial Court then sitting in Umuahia to be filed on 9th October, 2015 and which was filed on 9th October 2015 for which the Appellant filed a memorandum of Appearance on 5th November, 2015 was incompetent and deprived the court of jurisdiction to entertain the suit of the 1st Respondent (Ground 5, 10, 1, 12, 13 and 17 of the Notice of Appeal) speculated as dated 14th July, 2016 and filed on 15th July, 2016.
4. Whether the issue of estoppel and waiver raised by the Appellant against whom there was no claim by the 1st Respondent and who accepted the PDP primary election result conducted for aspirants who participated on 8th December, 2014 including the 1st Respondent was rightly rejected by the trial Court (Ground 4 of the Notice of Appeal speculated as dated 14th July on 15th July 2016).
5. Whether the award of cost upon the dismissal of the motion on Notice of the Appellant dated 12th February 2016 and for striking out the Preliminary Objection was wrong. (Ground 6 of the Notice of Appeal speculated as dated 14th July, 2016 and filed on 15th July, 2016).

The brief of argument filed on behalf of the 2nd respondent on 1st August, 2016 has only one (i) issue distilled for determination thus:-

“Whether the Appellant is entitled to a declaration that he was the 2nd Respondent’s candidate and the duly elected Governor of Abia State in the April, 2015 general election who should be issued with a Certificate of Return and sworn in as Governor.

The third respondent in the brief filed on his behalf on the 1st August, 2016 raised just 2 (two) issues for determination at pages 8-9, thus:-

(a) Having regards to the fundamental and jurisdictional issues of abuse of court process, locus standi, incompetent of the Originating Summons, estoppel, and waiver raised by the Appellant, whether the Lower Court had jurisdiction to entertain the case before it. Ground 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14 and 17 of the Notice of Appeal.

(b) Whether having regards to the case of the appellant before the Lower Court, this Honourable Court has the jurisdiction to grant reliefs vii, viii, x and xi in the Notice of Appeal – Ground 15 of the Notice of Appeal. Like the 1st respondent, the 3rd respondent also raised some Preliminary Issues or Objection, but this time by way of a Motion on Notice dated and filed on 1st August, 2016

I will address the various objections in the course of this Judgment.

In the meantime the 4th Respondent who has not filed any brief of argument is by that stance deemed as not interested in the appeal or that he is deemed to have agreed to be bound by the outcome of the appeal. See: Sofolakan V. Chief Folakan & 12 Ors. (1999) 10 NWLR (Pt.621) 86, 95; Echere Vs. Ezirike (2006) 12 NWlR (Pt. 994) 386 Qr (2006) 5 SC (Pt. 1) 65.

The Appellant has filed a reply brief in response to the brief of argument for the 1st respondent served on him. The reply brief dated and filed on the 8th August, 2016.

The Appeal came up for hearing on the 9th August, 2016 and Parties were represented by their respective counsel. Messrs Alex A. Izinyon, SAN and Olabode Olanikpekun for the 1st and 3rd respondents respectively took turns to move the court and argue their Preliminary Objection and/or Motion on Notice, as the case may be.

Learned counsel for the 1st respondent, with reference to the Notice of Preliminary Objection already incorporated into his brief of argument at paragraph 3.0 brought into focus, the propriety of the three Notices of Appeal in one Appeal filed by the appellant and thus submitted that the Appeal case was incompetent in that the same was/is:

(1) Founded on three Notices of Appeal.

(2) That Ground 6 of the appeal and Issue No. 5 is as to award of Cost in the Appellant’s Brief of argument.

(3) The appeal is an abuse of right of appeal as there is no relief claimed against the Appellant by the 1st respondent in the substantive Suit, the subject of this appeal nor is there any award made against the appellant on the reliefs claimed against the 2nd, 3rd and 4th respondent by the 1st respondent. Arguments over these Heads of Objection are captured at paragraphs 4.0 to 4.12 of the 1st Respondent’s brief of argument.

Learned counsel for the 3rd respondent similarly raised issues which are preliminary in nature. By the Motion on Notice dated and filed on the 1st August, 2016 he prayed for an order:

” … striking out ground 15 and reliefs Vii, viii, x and xi of the Appellant’s Notice of Appeal dated 14th July, 2016 … ”

The said Motion on notice is predicated on the 6 (Six) Grounds listed in the Motion paper. There is also the supporting affidavit of 6 paragraphs and same was deposed to by Vanessa Onyemauwa, a legal Practitioner in the law Firm of Wole Olanikpekan & Coy.

Argument canvassed in support of these Preliminary Issues raised in the Motion paper are at paragraphs 3.0 to 3.9, pages 3 – 8 of the 3rd respondent’s brief of argument. It is worthy of mention that the appellant even though served with the Motion paper did not deem it fit to file a counter-affidavit or a written address in opposition to issues raised in the supporting affidavit. I believe there is the need to do so otherwise the admonition in Ajomale V. Yaduet (No. 2) [1991] 5 SCNJ 174, 184 is brought to play and the appellant will be deemed as having accepted those facts deposed to in the supporting affidavit as true. See further decisions in: Adejumo V. Ayantegbe (1989) 3 NWLR (Pt. 110) 417; Eze V. State (1985) 3 NWLR (Pt. 13) 429; Attorney-General of Plateau State V. Attorney General of Nasarawa State (2005) 4 SCNJ 120. 125. But such admission is with respect to facts only and not law.

I will now address those submissions made by counsel over the Preliminary points; thus:-

1. ON THE APPELLANT’S BRIEF OF ARGUMENT BEING INCOMPETENT

The submission made here is that the appellant having filed 3 (three) separate Notices of Appeal as indicated earlier in respect of the same decision or Judgment of the court below delivered on the 27th July, 2016 , the appellant in his brief of argument ought to have disclosed which among the 3 (three) Notices of Appeal he was relying on. This failure said the learned silk for the 1st Respondent rendered his brief of argument dated 25th July, 2016 and filed on the 26th July, 2016 incompetent as an abuse of court process the appellant having based his appeal and his brief of argument on multiple Notices of Appeal.

Learned counsel for the 1st respondent further submit that issues 1, 2, 3, 4 and 5 raised by the appellant in his brief of argument were not tied to any particular Notice of Appeal hence a brief of Argument cannot be used to address issues in 3 Notices of Appeal.

The Appellant filed a reply brief on the 8th August, 2016 in response to the brief of argument of the 1st Respondent served on him. In it he argued per contra relative to the t question on hand that Appellant’s brief of argument was competent, the appellant or his counsel having adopted and relied on the Notice of Appeal filed on 15th July, 2016 on the day this appeal came up for hearing that is on the 9th July, 2016. He argued that per chance there was any mistake or oversight or inadvertence of counsel to state in the appellant’s brief of argument that he relied on any particular Notice of appeal, the inadvertence has been overtaken when on the 26th July, 2016 he applied to withdraw the 2 (two) other Notices of Appeal and rely and adopt the Notice of Appeal filed on 15th July, 2016. Appellant’s brief of argument said to be abusive of Court process was filed on the 26th June, 2016, that is the same date his counsel applied to withdraw the 2 (two) other Notice of Appeal earlier filed by him and to rely and adopt the Notice of Appeal filed on the 15th July, 2016. This application for withdrawal was not opposed by counsel on the other side, in particular the counsel for the 1st Respondent. To the contrary, Dr. Izinyon, SAN applied for a date to file his brief of argument for the 1st respondent and this court accordingly granted his request and for him to file his brief of argument on or before 2nd August, 2016.

I think, the point should be made here and that is that on the 26th July, 2016 when the brief of argument for the appellant was filed, and the application made on his behalf to withdraw 2 (two) earlier Notices of Appeal, the 1st respondent in particular had not taken any step to file his brief of argument as to suggest that by the brief served on him by the appellant, the 1st respondent was misled to believe that the appellant relied on all the three Notices of Appeal filed by him.

The law is now trite that the person seeking to appeal against the decision given and which is not favourable to him can appeal that decision. In doing so he is at liberty to file as many Notices of Appeal as he so wish but at the date of hearing he can only rely on one of such Notices. See Tukur V. UBA (2013) 4 NWLR (Pt. 1343) 90; Tukur Vs. Government of Gongola State (1988) 1 NWLR (Pt. 68) 39; Asheik V. Bornu State Government (2012) 9 NWLR (Pt. 1304) 1, 17. The apex court in Tukur V. UBA Plc. (supra) has held:

“There is also no doubt and it cannot be disputed that an appellant is entitled to file more than one Notice of Appeal within the time prescribed for so doing by the rules of court. But whenever there are more than one Notices of Appeal and the said Notices were filed within the time so prescribed, the Appellant cannot use or rely upon more than just one of the Notices of Appeal to argue the appeal. He must choose which of them he intends to rely upon… ”

This choise came when on the 26th July, 2016, counsel for the appellant indicated his desire to rely only on the Notice of Appeal he filed on the 15th July, 2016 and not on the other Notices filed before them. Since the appeal did not come up for hearing until on the 9th August, 2016, the appellant or his counsel had done all that he needed to do relative to the three Notices of appeal filed by him before the date of hearing. Consequently I will overrule the 1st Respondent or his counsel on this Head of objection and I hold that the brief of argument filed on behalf of the appellant on the 26th July, 2016 (subject to any other issue that may arise in the course of this Judgment) is valid and competent. I so hold.

ii. OBJECTION TO GROUND 6 OF THE NOTICE OF APPEAL AND ISSUE NO. 5 THERETO ON AWARD OF COST.

It has been argued for the 1st Respondent that ground 6 in all the three Notices of Appeal filed by the appellant and Issue No. 5 derived therefrom which dwell on the issue of cost was incompetent so far as leave of court was not first sought and obtained to raise such ground on appeal. Learned counsel relied on the decision in Ukiri Vs. UBA Plc. (2016) 3 NWLR (Pt. 1500) 440, 457; Nwedike V. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Ohuwole V. LSPDC (1983) 5 SC 1; A & S.B.C.O. (Nig.) Ltd Vs. F.C.M.B. Ltd (2013) 10 NWLR (Pt. 1363) 501, 521 and Sections 241 (2) (c) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) to submit that the said ground 6 and Issue No. 5 were incompetent and he urged us to strike out same. But counsel for the appellant in his Reply brief at page 6 to 7 has argued that it is only in situations where the ground of appeal in the Notice is on the issue of cost only that prior leave of court can be sought and obtained. He argued that in this appeal case with 17 (seventeen) other Grounds of appeal, leave of court was not required merely because a ground of appeal on issue of cost is involved.

OPINION

I have read the authorities cited by counsel in their briefs of argument on this point. By Section 241 (2) (c) of 1999€¢Constitution of the Federal Republic of Nigeria, appeal does not lie as of right against award 9f Cost by a Court. See Ukiri Vs. UBA Plc. (supra). Sub-Section 2 of Section 241 at paragraph (c) read:

“(2) Nothing in this Section shall confer right of appeal:

(a) ………………………………………………………………………..

(b) ……………………………………………………………………….

(c) Without the leave of the Federal High Court or the High Court or of the Court of Appeal, from a decision of the Federal High Court made with the consent of the parties or as to cost only”

The argument or the stance of the learned counsel for the appellant is that leave can only be sought and obtained where the issue of cost is the only ground presented in the Notice of appeal as the ground of appeal. This argument, with due respect to him is not sound and defies all legal reasoning. Once the issue of cost is presented as a Ground of Appeal whether as the lone or solitary ground in the Notice of Appeal or as a Ground of Appeal amongst a community of other grounds in the Notice of Appeal, the said Appeal or Notice of Appeal stands invalidated if as a lone ground, the Notice of Appeal is also invalidated in absence of any leave of appeal first being sought and obtained; and where the issue of cost is presented as a Ground of Appeal among a community of other grounds in the Notice of Appeal, the said ground only is invalidated on account of leave not having been sought and obtained to legitimize the ground of appeal on the issue of cost. So the issue of cost whether as a sole or lone Ground of Appeal in the Notice or as a ground amongst other grounds, it is imperative that the Appellant should first seek and obtain leave as a condition to the exercise of the Right of Appeal even in a final decision to which the appeal relate. In this case leave not having been sought to appeal on issue of cost it stands to reason that ground 6 of the Grounds of Appeal along with the particulars are incompetent and ought to be struck out. See: Adewunmi V. Oketade (2010) 8 NWLR (Pt. 1195) 63; Unitam Industries Ltd V. Oceanic Bank International (Nig.) (2008) 3 NWLR (Pt. 911) 83, 102. Sequentially all arguments canvassed thereto by counsel at or from page 24 of appellant brief relative to issue No. 5 derived from Ground 6 are equally incompetent and they suffer the same fate. No one can place something on nothing and expect it to stand. See: Macfoy V. U.A.C (1961) 3 All ER 1169 or (1962) A.C. 159. It will collapse, so is it with ground 6 and Issue No. 5 derived from it and arguments canvassed thereto, they are accordingly hereby struck out.

(iii) The third head of Objection raised in the 1st respondents brief is the complaint that the entire appeal is an abuse of the right of appeal, there being no relief claimed against the appellant herein by the 1st respondent nor any relief granted against him, in the suit filed by the 1st respondent. Arguing contrariwise learned counsel for the appellant submits that a right of appeal reside with the person against whom a decision is made or the decision is against his interest. He argued that the Appellant being an aspirant in the gubernatorial election where he sought to be nominated as the candidate of the 2nd Respondent (PDP) in the said primary election which is the subject matter in Suit No. FHC/ ABJ/CS/71/2015, the decision of which did not favour him, he is entitled to appeal against that decision.

The appellant herein was a party at the trial court in Suit No. FHC/ABJ/CS/71/2015 between Dr. Sampson Uchechukwu Ogah Vs. Peoples democratic Party (PDP) & 3 Ors. He contested that Suit as the 4th defendant even though joined to the suit upon his own application. It does not matter. He is still a party. Having therefore contested the suit as a party at the trial court, the right of appeal thus reside in him if at the end, the decision of the trial court was unfavorable to him and he needed to appeal against it, such person or persons cannot be shut out on account of the claim by the other person (s) stating that no relief was sought against him (appellant) at the trial court and no order affecting him was made by that court. To shut him out on this account is to deny him his right of appeal and right of hearing under Section 243 (a) read together with Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

So as party to the Suit No. FHC/ABJ/CS/71/2015 at the court below, he is well qualified to appeal against that decision and be heard on issues arising from the decision in the exercise of his right to fair hearing. Even where he is not a party to the Suit, the person who can show that he has a legal interest in the subject-matter of the decision in the Suit now on appeal can with the leave of court duly sought and obtained appeal against such decision. See: Ademola Vs. Sodipo (1992) 7 SCNJ 417, 428. In the instant case, the appellant is not just a person interested in the subject-matter to which the appeal relates, he has been a party to the proceedings at the trial court and in exercise of his right of appeal can so appeal. See: Ezechukwu Vs. Madukwe (2011) LPLR-3772 (CA); CAN Vs. Labour Party (2012) LPELR-8003 (CA); Prof. Awojobi V. Dr. Ogbemudia (1983); Re Ugadu (1988) 5 NWLR 188, 203; Ikonne V. COP (1986) 4 NWLR 473. It is one thing for the litigant to exercise his right of appeal, while the validity of the complaint presented by him at the hearing of the appeal is another thing altogether. But to shut the litigant from presenting an appeal in a suit for which he is a party will at this stage translate to jumping the gun. It is like hitting the opponent below the belt and this is contrary to the rules of the game. In effect I overrule this head of the Preliminary Objection and dismiss same.

(iv) The next issue raised in this appeal as a Preliminary point is by way of the Motion on Notice filed on behalf of the 3rd Respondent, Dr. Okezie Victor Ikpeazu on the 1st August, 2016. I have before now in this discourse alluded to this application, the arguments of which are also canvassed in the 3rd respondent’s brief at page 3-8. The crux of the complaint or objection taken is discernible from the grounds upon which the application is predicated, and that are:

(i) That the Originating Summons before the Lower Court did not contain any question for determination relative to the status of the appellant as the candidate for the 2nd respondent.

(ii) There was no relief before the Lower Court seeking the declaration of the appellant as governor of Abia State.

(iii) The appellant did not file any counter-claim before the Lower Court.

(iv) Arising from (a) – (c) above, ground 15 of the Notice of Appeal does not arise from the Judgment of the Lower Court.

(v) There is no relief in the Notice of Appeal for the invocation of Section 15 of the Court of appeal Act.

(vi) Further to (e) above, this Honourable court lacks jurisdiction to grant relief vii, viii, x and xi in the Notice of Appeal.

Learned counsel for the 3rd respondent in his brief has argued that the reliefs contained in the appellant’s Notice of Appeal are reliefs Nos. vii, viii, x and xi are all connected to ground 15 of the Notice of Appeal.

Speaking of ground 15 learned counsel has argued that there was no issue distilled by him from ground 15 of the Notice of Appeal nor arguments canvassed in support thereto. Hence same was abandoned citing in his brief of argument the decision in Durago V. State (1992) 7 NWLR (Pr. 255) 525, 537; Chime V. Chime (1995) 6 NWLR (Pt.404) 734, 747; Sunday V. INEC (2008) All FWLR (Pt. 431) 985,997. It is further argued, in the light of the submission made as above that reliefs vii, viii, x and xi which he said are directly tied to ground 15 become merely academic in nature and ought to be struck out.

Learned counsel for the 3rd respondent further contend that ground 15 of the Notice of Appeal did not arise from the Judgment of the trial court and that same should be struck out citing in his brief of argument the decision in Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156, 184. He argued by reference to the Originating Summons (as amended) and the appellant’s counter-affidavit in opposition to the Originating Summons and the brief of argument of the appellant, that there is in reference made in those processes as to the status and the entitlement of the Appellant to the Governorship seat of Abia State and this being the position, the appellant cannot now lay complain that the trial court was in error for failing to return him as the Governor of Abia State when no such relief was sought before the trial court. It is further argued that by the posture taken by the appellant, in seeking to reap where he did not sow, he was not being consistent in the manner he presented his case both at the trial court and in this court. He cited Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248, 269 to submit that whereas at the trial court, his case strictly was that the suit before it was an abuse of the process of court, in this court, he is now seeking for an order to declare him, the Governor of Abia State. He argued that an appeal being a continuation of hearing, the appellant was not entitled to the reliefs sought by him in this court. He cited Ajide V. Kelani (1985) 3 NWLR (Pt.12) 248, 269; Adeleke V. O.S.H.A. (2006) 16 NWLR (Pt. 1006) 608, 690. It is further submitted that since the relief now being sought in this court was not sought at the trial court then this court lacks jurisdiction to grant same. He referred us to order 6 Rule 2 (1) of the court of Appeal Rules, 2011 and the decision in Akinbobola V. Plisson Fisko (1991) 1 NWLR (Pt. 167) 270, 285 to urge us to reject/refuse his (appellant) request for an order of his declaration as Governor of Abia State. He urged us to strike out ground 15 and reliefs vii, viii, x and xi.

In relation to the Section 15 of the Court of Appeal Act, 2004 which the appellant has urged this court to invoke, learned counsel for the respondent in his briefs argued that this court cannot do so, so far as the relief was not sought for in the Notice of Appeal. He referred us to Apapa V. INEC (2012) 8 NWLR (pt. 1303) 409, 431. He urged us finally to grant his application and strike out ground 15 and reliefs vii, viii, x and xi in the appellant’s Notice of Appeal dated 14th July, 2016 and filed on 15th July, 2016.

OPINION

Permit me my Lords to observe here that although a reply brief was filed for and on behalf of the appellant on the 8th July, 2016 himself or his counsel did not deem it fit or necessary to respond to those very weighty submissions made by counsel for the 3rd respondent in his brief of argument at pages 3 – 8, paragraph 3. 0 to paragraph 3.9. dated and filed on the l 5t August, 2016. Appellant’s reply brief was filed on the 8th August, 2016. It seems to me that the appellant and/or his counsel care less about those submissions as perhaps, it adds nothing neither does it remove something from his case. This attitude of indifference as exhibited by the appellant or counsel on the issue on hand first became apparent when they neither challenged nor controverted the affidavit evidence to the Motion on Notice filed by the 3rd respondent on this point. A case of admission, you might say.

Be that as it may, I have observed, based on the brief of argument dated 25th July, 2016 and filed on 26th July, 2016 that there is no issue formulated or tied to ground 15 of the Notice of Appeal. No attempt was made in the appellant’s brief of argument to ventilate ground 15 of the grounds of Appeal by any issue. The Ground was just left bare, and standing on its own and this is deemed as having been abandoned. See Pam V. Mohammed (2008) 16 NWLR (Pt. 1112) 1 SC or (2008) 5-6 SC (Pt.83); Durago V. State (supra); Chime V. Chime (supra); Sunday V. INEC (supra). In Durugo Vs. State, the Supreme Court held:

“In an appeal, a ground of appeal filed on which no issue is formulated, and therefore no argument preferred in the brief of argument, will be deemed by the court as having been abandoned…”

The same court in another case further held in Pam V. Mohammed that:

“As Issue are formulated from ground of appeal, ground 4 which is not ventilated by any Issue is incompetent.” Per Tobi, JSC

A ground of Appeal is liable to be struck out where no issue is derived from it hence no valid argument can be canvassed.

Mr Olabode Olanikpekon, learned counsel for the 3rd respondent has in his brief of argument urged on the court to strike out reliefs vii, viii, x xi of the Notice of Appeal which he said are connected with or to ground 15 of the Notice of Appeal. I am contented, however, to stop here for now. The question whether or not the appellant is entitled to any of the reliefs claimed and in particular reliefs vii, viii, x and xi sought to be struck out should come up at the close of deliberations in this exercise, upon the Appeal being heard on the merit.

Issue similar to those canvassed by the 3rd respondent in his brief of argument relative to reliefs vii, viii, x and xi in the Notice of Appeal are also canvassed by the 3rd respondent in his brief of argument but not by way of an objection raised as a preliminary point but as a substantive matter or issue in the Appeal and his counsel, the learned silk, Dr. Onyechi Ikpeazu, SAN was heard over it.

I can now see the wisdom behind learned counsel’s preference to argue this point as a substantive issue in this appeal. He has his reasons and has so expressed himself at paragraph 5.01 of his brief of argument at page 7. He would not mind that in view of the complexity of this matter, the appeal is set aside. There is more to this, it seems. His grouse really relates to grounds 15 and 16 of the Notice and grounds of appeal only where the appellant in the said Notice has complained that he ought to have been declared the candidate of the 2nd respondent who won the Governorship election and who should be issued with a certificate of Return and be sworn in as the Governor of Abia State.

Respondents have in their own ways expressed their different views in the respective briefs of argument filed by them in response to this appeal and indeed on the reliefs now being sought as per the Notice of appeal. I can now direct my attention to the appeal proper.

The Appellant raised 5 issues for determination in his brief of argument and adopted same along with argument canvassed thereto at the hearing on the 9th August, 2016 to urge on the court to accede to his request and allow the appeal. The 1st, 2nd and 3rd Respondents similarly formulated issues in their respective briefs of argument which I have reproduced earlier in the Judgment.

However, after a thorough consideration of those issues vis-a-vis arguments canvassed by learned counsel, in their briefs, I form the opinion that the question of locus standi of the 1st respondent to present and institute the suit leading to this appeal, the question of the suit so instituted by him being an abuse of the process of court, incompetence of the Originating Summons, estoppel and waiver raised by the appellant, are issues or questions having direct relevance on the jurisdiction of the trial court to entertain the suit. In the light of this I form the opinion therefore that this appeal can be addressed and determined based on two (2) broad issues as done by the 3rd respondent or his counsel in his brief of argument at pages 8 – 9, paragraph 4.0 to 4.1 and accordingly I adopt same, namely:

1. Having regards to the fundamental and jurisdictional issues of abuse of court process, locus standi, incompetence of the Originating Summons, estoppel, and waiver raised by the appellant, whether the Lower Court had jurisdiction to entertain the case before it. Grounds 1, 2, 3, 4, 5, 8, 10, 11, 12, 13, 14 and 17.
2. Whether having regards to the case of the appellant before the Lower Court, this Honourable court has the jurisdiction to grant reliefs vii, viii, x and xi in the Notice of appeal- ground 15 of the Notice of Appeal.

Argument on Issue No. 1

Having regards to the fundamental and jurisdictional issues of abuse of court process, locus standi, incompetence of the Originating Summons, estoppel, and waiver raised by the appellant, whether the Lower Court had jurisdiction to entertain the case before it. Grounds 1, 2, 3, 4, 5, 8, 10, 11, 12, 13, 14 and 17.

The appellant has canvassed issue No. 1 at page 5 to 24 of his brief of argument. Learned appellant counsel has argued relative to the question of the locus standi that the 1st respondent lacks it and could therefore not institute the suit as he did at the trial court in terms of Suit No. FHC/ABJ/71/2016 giving rise to this appeal having condemned, repudiated and rejected in writing the PDP Gubernatorial primary election held in Abia State on 8th December, 2014. That the 1st respondent having also refused to acknowledge and sign the result of the primary election he cannot be said he, participated in the PDP primary election. He relied on the unreported case of this Court in Orufa V. Josline Boluobo V. PDP & 2 Ors; Appeal No. CA/A/546/2012 of the 3rd September, 20113 and the decision in PDP V. Sylva (2012) 13 NWLR (Pt.1336) 85 to submit that the 1st respondent lacks locus standi. It is further argued by counsel for the appellant that by the way and manner the 1st respondent conducted himself at the PDP primaries, by the rejection of same, his refusal to sign the election result, his utter condemnation of the exercise, he (1st respondent cannot thereafter come to court to claim any right which he had waived by his conduct, writing and Oath. In reference to Section 169 of Evidence Act and decision in Obitude V. Oyesom Community bank Ltd (2014) 9 NWLR (Pt. 1412) 352, 382; Ehidimhen V. Musa (2000) 8 NWLR (Pt. 280)126, 155; Attorney-General Nasarawa Vs. Attorney-General Plateau (2012) 10 NWLR (Pt.278) 638 ; Anor Vs. Elemo (1983) 14 NSCC 1. He submits that where one person has by his declaration, act or omission intentionally caused another person to be true and to act neither he nor his representative in interest can deny the truth of that thing. He relied on: Bakare V. Lagos State CSC (1992) 10 SCNJ173. Having thus waived his right he has lost same once the other side acts on the waiver, the party waiving his right is estopped to return to that which he had waived. It was urged on the court to hold that the 1st respondent had waived his right.

Learned appellant’s counsel has further urged us to hold that the suit filed by the 1st respondent as Suit No. FHC/ ABJ/CS/71/2016 was an abuse of court process in that as at the time the suit was filed there was already in existence another suit on the same subject-matter and for which the 1st respondent was/is a party as defendant who filed his defence to suit that is No. FHC/ ABJ/CS/184/2015 and later, FHC/ ABJ/CS/64/2015 now FHC/OW/CS/191/2015 between Nwosu Vs. PDP & 3 Ors. He urged us to hold therefore that the Suit instituted by the 1st respondent, now Suit No. FHC/ ABJ/71/2016 is an abuse of court process. He cited and relied on Ntuk & Ors Vs. NPA (2009) 13 NWLR (Pt. 1051) 392, 419; Lokpobiri V. Ogola (2015 11 SCNJ 71; Amefale V. State (1988) 2 NWLR (Pt. 75 156, Edet V. State (1988) 4 NWLR (Pt. 191) 7222; African Reinsurance Corporation Vs. IDP Construction Nigeria Ltd (2003) 5 SCMJ 104, 121 among other.

Learned counsel further submits that when the facts enumerated on the counter-affidavit of the Appellant at the trial court are juxtaposed with the court’s process, exhibits marked and attached as exhibit A, B- B1 as D-02 and E- E1 as at pages 860-1020 of the record of appeal, Vol. 2, it becomes apparent, that the instant case of the 1st respondent before the trial court and now this court is an abuse of process. He urged us to disallow this abusive nature of the suit leading to this appeal in the light of the 1st respondent herein being the defendant in the earlier suit filed by the appellant between the same parties on the same subject- matter, on the same issue and for the same relief. He cited ACB v. Nwaigwe & Ors. (2011) 1-2 SC (Pt. 11) 67.

On the question of the suit at the trial court being incompetent, learned appellant’s counsel submits among others with respect to the failure of the 1st respondent to timeously effect consequential amendments to his originating Summons, and serve same on the appellant rendered the amended process incompetent more so that the same was neither signed nor stamped and sealed by the 1st respondent. That the originating Summons served on the appellant was filed out of time and served out of time to oust the jurisdiction of the trial court erroneously held otherwise. He urged us to hold that the originating process was incompetent and he referred to the decision in Madukolu V. Nkemdilin (1962) 2 All NLW 588, 992; lhedioha V. Okorocha (2016) 1 NWLR (Pt.1492) 1471, 156- 157.

The response of the 1st respondent are at pages 8-25 of his brief of argument. The 1st respondent has debunked those submissions of the appellant at pages 8- 25 of his brief of argument. First as regards locus standi of the 1st respondent, learned counsel referred us to paragraph 1 and 30 of the affidavit in support of the originating process not only to show that the 1st respondent is a member of Peoples Democratic Party (PDP) who as an aspirant participated in the primaries held on 8th December, 2014 but obtained 103 votes in that election. In further reference to Issue formulated for determination and the reliefs sought the 1st respondent by the Originating Summons filed by him, he argued that all these facts conferred on the 1st respondent the locus standi to institute the suit as he did at the trial court.

Learned counsel for the 1st respondent therefore submits with regard to Section (4) B (i) and (ii) and Section 87 (9) of the Electoral Act that the 1st respondent has locus standi, a fact which he said the appellant cannot deny. In furtherance of this submission counsel referred us to Section 31 (5) of the electoral Act. This provision he said, allowed any person to go to court in the circumstances provided therein. He argued that either by Section 87 Or 31 (5) of the Electoral Act, the 1st respondent has the locus standi to institute the suit as he did at the court. In support of his contention he relied on Albion Construction Ltd V. Rao Investment & Property Ltd (1992) 1 NWLR (Pt. 219) 583, 598; Adefulu Vs. Oyesila (1989) 5 NWLR (Pt. 122) 377; Thomas V. Olufosoye (1986) 3 NWLR (Pt. 18) 669; uwazuruike Nwachukwu (2013) 3 NWLR (Pt. 1342) 503, 530; Ukachukwu vs. PDP (2014) 17 NWLR (Pt. 1435) 134, 201; Ekegbara V. Ikpeazu (2016) 4 NWLR (Pt.1503) 411, 439. Learned counsel for the 1st respondent in his brief sought to distinguish the case of Orufa Josline Boluoso V. PDP & 2 Ors. (Unreported) Appeal No.CA/A/146/2012 of 3rd September, 2013 and the case of PDP V. Sulva (2012) 13 NWLR (Pt. 1316) 85 for the current case on appeal where as in the former it is argued that the 1st respondent did not participate in the primaries in relation to the question of abuse of process of court as alleged by the Appellant, the 1st respondent has submitted that the filing of suit FHC/ ABJ/71/2016 by him as an aspirant cannot constitute abuse of process while in pursuance of the right given to him pursuant to Section 87 (9) and 31 (5) of the Electoral Act (as amended). He cited Akhigbe V. Panlosa Nig. Ltd (2006) 12 NWLR (Pt.994) 373; Oregbede V. Onitiju (1962) 1 All NLR 32; Obala of Oten-Anyebayi v. Adesina (1992) 2 SCNJ 118. It is further argued that section 6 (6) (a) [b] of the 1999 Constitution enabled the 1st respondent to go to court and nothing can stop that, not even the appellant. He cannot stop anybody who has reasonable information that the document submitted by any candidate to an election was false from going to court to so state. Pursuant to Section 131 (5) of Evidence Act

Learned counsel further debunked the suggestion that the suit filed by the 1st respondent had the same parties, subject-matter and issues as the suit previously filed by the Appellant. If anything it is contended that the suit filed by the appellant has as the subject-matter, forgery of a Certificate pursuant to Section 182 (1) of 1999 Constitution whereas the suit filed by the 1st respondent was anchored on Section 87 (4) (B) (i) and (ii) of the Evidence Act and Section 31 (S) of the same Electoral Act. He argued that the Appellant has not made out a case of abuse of court process as alleged.

On the complaint that the Amended Originating Summons was neither signed nor filed timeously as ordered by the trial court, learned counsel for the 1st respondent arguing per contra by reference to the Order made at the trial court on 7th October, 2015 by which order the 1st Respondent was directed to file his amended Originating Summons on or before 9th October, 2015. Learned counsel contends that the order of the trial court was complied with when on the 9th October, 2015 he filed his amended Originating Summons and caused same to be served on the Appellant. Consequent upon the process being served, the appellant entered a memorandum of appearance on the 5th November, 2015. To this end it is argued that the claim by the Appellant that he was not served with the Originating Summons until in April, 2016 was utter falsehood.

On the question of lack of signature on the Amended originating Summons served on the Appellant, was cured by the service on the appellant of a signed copy of the Originating Summons notwithstanding the other service which concede the appellant to file a memorandum of appearance on 5th November, 2015.

On the contention of absence of seal of counsel who prepared the originating Summons, he argued that this defect was cured by the Motion made to affix stamp and seal of counsel and this was not opposed by the appellant.

On the Issue of estoppel and waiver, counsel for the 1st respondent has argued that the appellant cannot rely on his letter of his protest over the conduct of PDP primary elections to contend that the 1st respondent has waived his right and cannot therefore claim any right arising from those primaries. He argued that by the said letter of protest, the 1st respondent was only exploring the internal dispute resolution mechanision which he said was a condition precedent to a suit being instituted. Relying therefore on Aribisale vs. Ogunyemi (2005) 6 NWIR (pt. 921) 212, 21-232; Omahiko V. Awachie (2002) 12 NWLR (Pt. 780) 1; Ogologo V. Uche (2005) 14 NLR (Pt.945) 226, 245 he argued that an aspirant who participated in the primaries and whose score in the said primary election was released cannot be said has waived his right relative to that election and thus is estopped from litigating any action pursuant to section 87 (9) and 31 (5) of the Electoral Act as amended. He argued that it is his complaint against the conducts of the elections that gave rise to his cause of action not the acceptance of the result of primaries. He argued that in law estoppel, waiver and conduct are used as a shield to defend an action against a party hence the Appellant against whom no relief was sought cannot rely on the defence of estoppel and waiver to stop the 1st respondent from claiming any relief against the appellant. Learned counsel therefore urged on the court to dismiss the appeal.

The 2nd respondent in his brief of argument took sides with the appellant on those points wherein his counsel in agreeing with the appellant argued that:

(i) The trial judge was wrong to hold that the 1st respondent had the requisite locus standi to institute the action.

(ii) The trial Judge was wrong to hold that the amended originating Summons is competent the same not having been filed within the requisite or penalty paid default; and

(iii) The trial Judge was wrong to dismiss Appellant’s Motion dated 12th February, 2016.

The third respondent in his brief like the 2nd respondent similarly agree with the appellant and that the decision of the trial court in unsupportable regarding the issue of locus standi, abuse of court process, incompetence of the suit before that trial court and the conduct of the 1st respondent relative to the PDP Primary elections, constitute a waiver hence the 1st respondent was estopped from any claim fright over those primary elections.

The Appellant filed a reply brief on the 8th August, 20116 in response to the 1st respondents brief of argument. I have noted the points raised by him in his reply brief I will now proceed to state my view on the submission made by counsel.

OPINION

I will first address the Issue of locus standi of the 1st respondent to institute the suit as he did and in doing that it must be appreciated that the term locus standi simply denotes the legal capacity that the plaintiff has to institute proceedings in a court of law. It is used interchangeably with terms like “standi” or “title to sue”, thus in private law the plaintiff is said to have standing in a matter only if he has a special legal right or in the alternative if he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. What constitute a legal right, sufficient or special interest or interest adversely affected depends on facts of each case. See: Adesanya V. President, Federal Republic of Nigeria (1981) SC 69; Akinfolarin V. Akinnola (1994) 4 SCNJ (Pt. 1) 30, 61/ Omadunni Vs Regd. Trustees (2000) 6 SCNJ, 417. It follows therefore that when the locus standi of the Plaintiff is challenged it is the originating process that the court need to look at to discover the standing of the plaintiff, the 1st respondent in this appeal case, who instated action as plaintiff at the court below by way of the Amended Originating Summons filed by him and as reflected at pages 725 – 741 of vol. 2 of the printed record of Appeal;. The Originating process is thus, the Cynosure of the exercise. See: Dissu Vs. Ajilomuna (2007) 7 SC (Pt. 11) 1; Osun State Government Vs. Sestisione H. Nigeria Ltd (2012) LPEL-893C. (CA). In the affidavit deposed to by the 1st respondent himself in support of the amended Originating Summons indicate very clearly at paragraphs 1 and 2 that he is a member of the Peoples Democratic Party who participated as an aspirant in the Peoples Democratic Party Gubernatorial Primary Election for the elective office of Governor of Abia State. That the gubernatorial primaries were held on the 8th December, 201. Again by the reliefs sought by him, at pages 729 – 731 particularly reliefs No. 1, 4, 5, 6, 7, 8, 9, 12, 13 the 1st respondent as plaintiff, did not only place himself in the epic centre of the exercise but said he was an aspirant who participated in the primary elections of PDP held on the 8th December, 2015 wherein by the results of the primary elections declared, the following score were recorded against the names of each contestant or aspirant who participated in that exercise. That is to say:-

NAME OF ASPIRANTS VOTES SCORED

1. IHEANACHO OKEZIE 1
2. MARKWABARA 3
3. CHIEF (Dr.) OKEZIE IPKEAZU 487
4. OKEY EMUCHEY 3
5. ACHO NWAKANMA 5
6. DR. UCHE OGAH 103
7. EMEKANWOGU 33
8. BARRISTE FRIDAY NWOSU 3

See paragraph 30 of the affidavit in support of the amended originating Summons at page 737 of the record.

So what greater evidence is there to show that the 1st respondent has locus standi especially considering that those facts were not controverted at the trial court nor denied in this court at the hearing of the appeal? The contention by the Appellant that 1st respondent had rejected the Primary and repudiated his interest in that exercise are to my mind, a different kettle of fish. Such alleged rejection or repudiation does not distract from the fact that the 1st respondent participated in the exercise leading to the nomination of a candidate for the gubernatorial elections. This brings to mind the provision at Section 87 (9) and 31 (5) of the Electoral Act. Section 87 (9) provides thus:-

€œNotwithstanding the provision of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the high Court of a State for redress.”

This provision came up for interpretation or consideration in Emenike V. PDP (2012) All FWLR (Pt. 1640) 1261; PDP Vs. Sylva (20120 13 NWLR (Pt. 1316) 85. The apex Court in Ardo V. Nyako (2014) All FWLR (Pt. 744) 130, 160 held:

€œUnder the said Section 87 (9), an aspirant who can invoke the jurisdiction of the Court and as has been held in a long line of cases from this court, is the one who complain that any of the provision of the Electoral Act and the guideline of a political party has not been complied with in the selection or nomination party for election”

See further the decisions in Uwazuirike V. Nwachukwu (2013) All FWLR (Pt. 860) 1206, 1225-1227; Adebayo V. PDP (2013) All FWLR (Pt. 695) 204, 230.

Issues formulated for determination at the trial court set out at pages 726- 728 of the printed record. It is my view that the 1st respondent is not only a member of the Peoples Oemocratic Party, he was an aspirant in the 8th December, 2014, Gubernatorial primaries of the PDP, having participated in those primaries and thus has the locus standi to maintain the action as he did. See PDP Vs. Sylva (supra). I am satisfied that the 1st respondent has, from the facts and evidence on the printed record before us, has brought himself within the meaning of Section 87 (9) of the Electoral Act to fortify him with the locus standi that he needed to approach the trial court as he did pursuant to Section 31 (5) of the Electoral Act.

On the issue of abuse of process of court by the 1st respondent by dint of the suit filed by him and as Suit No. FHC/ABJ/CS/71/2014 leading to this appeal, again I find no substance in this complaint.

What constitute an abuse of court process has been a subject of imprecise definition. In Saraki Vs. Kotoye (1992) 11/12 SCNJ -26 the concept of abuse of judicial process was held to involve:

“Circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of judicial process by a party in litigation to interfere with due administration of justice.”

The court in Saraki’s case (supra) was however quick to add that it amount to setting a higher standard to insist that the exercise of a constitutional right of appeal was an abuse of court process if the exercise of that right was likely to delay the hearing of the substantive action to conclusion. I felt I can draw this analogy from the decision referred to above. Would a person who is aggrieved with the outcome of a Process be denied access to court where he can ventilate his grievances on account of the existence of the suit filed by the other person arising from the same process. Concept of abuse of judicial process should, I think be applied with some measure of caution so as not to curtail the exercise of right of access to court by the individual, especially where the law or statute so provide. As for instance section 31 (5) of the Electoral Act enjoins:

“Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High court against such person seeking a declaration that the information contained in the affidavit is false.

I want to believe and I so hold that the suit or action commenced by the 1st respondent was predicated on this provision among others. In any case the courts under the constitution of the Federal Republic of Nigeria, 1999 as amended, are vested with judicial powers under Section 6 of the said Constitution and the exercise of those powers:

“extend to all matters between persons or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the Civil right and obligations of that person.

See: section 6 (6) [b]of the Federal republic of Nigeria, as amended. Thus the courts ab initio in the exercise of their judicial powers can entertain action brought by persons in the likes of the 1st respondent.

Although the appellant and the 1st respondent found themselves in the same PDP boat and as Co-contestants or aspirants in the PDP Primaries held on the 8th December, 2014, they each retained their individual aspiration in the quest for nomination as the flag bearer of the party for which each one of them is a member. Consequently any one contestant who felt there was a flaw in the process, such flaw gives him right of action. This is my understanding of the Suit brought at the trial court by the 1st respondent and such does not constitute an abuse of judicial process.

The Issue of waiver and estoppel was canvassed most vigorously by the appellant in his brief of argument wherein it is contended by him that the 1st respondent having rejected the primaries and repudiated his interest therein, even in writing, he has waived everything that he has with that exercise and is estopped from any claim of right over that (primary) election. The concept of waiver and estoppel to my mind is much more than what the appellant thought it is, on the facts presented by him.

Before I go any further, you will permit me my lords to say that the concept of WAIVER is akin to acquiescence, like election; it presupposes that person to be bound is fully cognizant of his right but neglects to enforce them, or chooses one benefit instead of another, either, but not both of which he might claim. See Ikechi Olue Vs. Obi Enenwali & Ors. (1976) All NLR 70 Or (1976) 2 SC 12. What a party relying on waiver must prove is €¢that the other party well knew of the existence of the misfeasance and despite this knowledge unequivocally accept it. See: Haightons (W.A.) Ltd Vs. Ajao & ors (1975) 1 SC (reprint) 8. Therefore if the party by conduct leads another to believe that the strict right arising under a contract will not be insisted upon, intending that the other should act on that belief, and he does act or it, then the first party not afterwards be allowed to insist on the strict right when it would be inequitable for him to do so. Se: united Cababer Co. vs. Elder Dempster Lines Ltd. (1972) All NLR 682 Or (1972) 8- 9 SC 31.

One fact which is very much prominent in the application of the principle of WAIVER is the existence of an agreement or contract between two or more parties or person as would lead the other party relying on the conduct of the person waiving his right to shift position. In that case there can be no return to a claim of right by the person who waived it. So, from the facts presented in this case on appeal unless it can be shown there is no such fact or evidence) that there is an understanding or some agreement of same sort between the 1st respondent and the appellant that the former has waived his right relative to the primaries held on the 8th December, 2014 then there is a misapplication of the doctrine. The case of the Attorney-General of Nasarawa State vs. Attorney-General of Plateau State (2012) 3 SCNJ 273 cited by the appellant in his brief has made this point abundantly clear and same does not support his stance. Ditto Obitude V. Onyesom Community Bank Ltd (2014) 9 NWLR (Pt.1412) 352, 382; Ehidimhen V. Musa (2000) 8 NWLR (Pt.280) 126. Those are the circumstances that would constitute waiver and estoppel under Section 169 of the Evidence Act, 2011. The other person or party relying on the conduct of the party making it must believe in the truth and act on the belief of the Statement or the conduct of the person making that representation.

The appellant has claimed that the 1st respondent rejected the primaries and refused to sign the result sheet and rather walked away. There is however evidence that the Appellant accepted the result of the Primaries and signed it. This is even in addition to the fact that there was neither an understanding nor an agreement between the 1st respondent and the Appellant to commit the latter to his actions. There is no such agreement.

Again it was contended that the mere fact of rejection of the primaries by the 1st respondent revealed his disinterestedness on the exercise. How else is it supposed to be if not as done by the 1st respondent to express himself, and to ventilate his grievances the way he did. It is natural to do so in all human setting such as the primaries of the PDP where shades of interest were represented. That is why the legislature in recognition of this human element in us employed the word “complains” under Section 87 (9) of the Electoral Act. Hence without such complaints there can be no realistic cause of action. It is my view therefore that the person who by his actions or conduct has expressed his disapproval of a process stands to be reckoned with first and above the person who merely accepted that process without laying any complaints.

Again I do not find any merit in this submission of the learned counsel for the appellant. Further on this jurisdictional Issue is the point raised as to the process Originating the suit being incompetent relative among others to:

(i) The Originating Summons not being signed and stamped and sealed.

(ii) The Amended Originating Summons not being filed within time in absence of any application legitimizing the process.

With respect to the first that is non-signing of the Originating Summons (as amended), such ordinary will nullify the process and proceedings built or founded on that process because the absence of signature on an Originating process is a fundamental vice and this goes to the root of the action without which an originating process is liable to be struck out since a person’s signature, written names or mark on a document, not under seal, signifies the authentication of that document that such a person holds himself out as bound or responsible for the contents of that a document. See: Adefarasin V. Dayekh (2007) 11 NWLR (Pt. 1044) 89; Tsalibawa V. Habiba (1991) 2 NWLR (Pt. 174) 461, 480-481; SLB Consortium Ltd Vs. NNPC (2011) 9 NWLR 317. Bode Rhodes- Vivour, JSC in his contributory Judgment held:-

“What then is so important about the way counsel chooses to sign processes? Once it cannot be said who signed a process it is incurable bad it is incurably bad and rules of court that seem to provide a remedy are of no use as a rule cannot override the law (I. E. legal Practitioner’s Act). All processes filed in court are to be signed as follows:-

First, the signature of counsel which may be any contraption.

Secondly, the name of counsel clearly written.

Thirdly, who counsel represent.

Fourthly, name and address of Legal Firm”

The second point raised under thus sub-head is that the 1st respondent’s Originating Summons was served on the Appellant belatedly on the 19th day of February, 2016 and that is outside the time decreed by the trial Court. In his brief of argument at page 22 the 1st respondent’s brief of argument it is submitted that the allegation that the appellant was served on the face of the memorandum of appearance filed by the appellant on 5th November, 2015, contradicted the contention of the appellant as to service on the appellant in February, 2016. That the service February, 2015 was effected out of excess of caution as to avoid waste of time and the necessary appeal over service of court processes. That the complaint that the copy served on the appellant was not signed was cured by the service on the appellant of another signed copy of the Amended originating Summons notwithstanding the service on the appellant that caused the appellant to file Memorandum of appearance on 5th November, 2015. That the contention on the absence of seal of counsel that prepared the originating Summons was cured by the Motion to affix the stamp which not opposed by the appellant.

In response to this submission the appellant in his reply brief said the process he filed on 5th November, 2015 was a conditional appearance and not that he was served with the Amended originating Summons.

So, the question arises as to why the Appellant entered appearance on the 5th November, 2015 if he was not served the originating summons viewed from the background that order 7 rule 1 (i) of the Federal High Court (Civil procedure) Rules 2009 require of the defendant on whom an originating process was served to enter appearance within 30 days from the date of service on him. This point was not addressed by the appellant in his reply brief neither did he deny that he entered such appearance. Could he have entered appearance without service on him of the Originating Process? That is the question. I think not.

The second point is as regards signature not having been appended on the Originating Process and also the stamp and seal of the Nigerian Bar Association not having been fixed or affixed on that Process.

Without much ado on this, a look at the amended originating Summons dated 2nd October, 2015 and filed on 19th October, 2015 particularly at page 196 of the printed record of Appeal is sufficient to prove to all doubting thomases that indeed the Originating process was signed by one O.J. Nnadi, Esq, SAN, and also stamped with the stamp of the Nigerian Bar Association stamp bearing the name of counsel referred to above. So it is not correct to say that the amended process was not signed as alleged by the appellant or his counsel. In the same vein it can be discerned ex facie that the originating process was assessed and paid for on the 19th October, 2015 as evidenced by the cashier’s stamp at page 190 of the printed record of appeal.

In the light of all the foregoing in this discourse I resolve issue No. 1 in favour of the 1st respondent and against the appellant.

Issue No.2

Whether having regards to the case of the appellant before Lower Court, this Honourable has the jurisdiction to grant reliefs Vii, Viii, x and xi in the Notice of Appeal.

Issue No 2 as couched and reproduced as above is common to the second and third respondents who raised it and canvassed same in their respective brief of argument. The question of appellant entitlement to the reliefs sought by him in his Notice of Appeal dated 14th July, 2016 and filed on the 15th July, 2016 was neither canvassed by him in his brief on the 26th July, 2016 nor his reply brief dated and filed on the 8th August, 2016.

In the brief of argument filed behalf of the 2nd respondent on the 1st August, 2016 it is argued that the appellant was/is not entitled to the reliefs sought by him in his Notice of Appeal. His reason being that grounds 15 and 16 under which the reliefs as sought were not covered by nor were issues distilled form any of those grounds for determination of court. He relied on Ministry of Education Anambra State Vs. Asikpo (2014) NWLR (pt. 1427) 351, 373 to submit that grounds 15 and 16 are been abandoned and same is struck out along with the reliefs 4 (vii), (Viii), (x) , (ix) as well as argument canvassed thereto in the brief of argument for the appellant at paragraph 6.03.

Learned counsel for the 2nd respondent in reference Vii, viii, x and ix in the Notice of Appeal has argued that prayers Vii and vii are twin pillars on which orders in prayers x and xi are founded but he further argued that those relief claimed by the appellant at the trial court. Secondly, he argued that the relief being declaratory in nature must specifically be claimed by the appellant at the trial court. It is further argued by him that the appellant even though the 4th defendant at the trial court he did not file a counterclaim in this regard to entitle him to any of the reliefs now being claimed in this court as per reliefs Vii, Viii, x and xi. The submission made by counsel for the 4th respondent is along the same direction.

OPINION

In his Notice of Appeal filed on 15th July, 2016 the appellant has sought a number reliefs and for ease of reference I will reproduce the reliefs relevant to the issues on hand namely: vii, viii, x and xi as follows:

“vii. A Declaration that the Appellant was the rightful Gubernatorial Candidate of the 2″d Respondent (PDP) in the 2015 general election by virtue of the 8th December, 2014 2nd Respondent’s (PDP) . Gubernatorial Primary election in Abia State.

viii. A Declaration that the Appellant is the duly elected Governor of Abia State by virtue of the governorship election held in Abia State in April, 2015

x. An order that the Appellant be issued with a Certificate of Return as the duly elected Governor of Abia State by the 4th Respondent.

xi. An order that the Appellant be sworn in as the Governor of Abia by the Chief Judge of Abia State or any other relevant Chief Judge or Judicial officer”

The appellant was the 4th defendant at the trial where he contested the suit filed by the 1st respondent as the plaintiff in suit No.FHC/ABJ/CS/71/2015 but as 4th defendant he fell short of entering a counter-claim in the nature of the reliefs now being sought by him in this court vide his Notice of Appeal. Having thus not filed any counter-claim he had not also led any evidence in that regard at the trial court. Every appeal is a continuation of hearing. Where therefore necessary foundational framework was not laid at the trial court by way of evidence led to put issues in proper perspectives at that court, it will be too late to raise those issues at the appeal Court and even if raised, the appellate court will have no jurisdiction to entertain such issue or claim as in this case, of the reliefs now being sought. See Osuji Vs. Ekeocha (2008) 16 NWLR (Pt. 1166) 81 (SC); Sabru Motors Nig. ltd Vs. Rajah Enterprise (2002) FWLR (Pt.116) 841; UBA Plc. Vs. Mustapha (2004) 1 NWLR (Pt. 855) 443; Lagga V. Salhuan (2009) All FWLR (Pt.455) 1617; Ngige V. Obi (2005) NWLR (Pt.999). Such will amount to raising fresh issues on appeal but an Appeal Court will not ordinarily entertain issues that are fresh and not brought and decided before a Lower Court without leave of the court being obtained. In the instance case the appellant had not sought leave of this court to canvass issues by way of the prayers Vii, viii, x and xi in the Notice of the Appeal. Hence those reliefs are struck out afortiori Grounds 15 and 16 the Notice and Grounds of Appeal hence Issue No. 2 is accordingly resolved against the appellant.

On the whole therefore this appeal fails and same is dismissed. I assess cost in the sum of N100,000.00 against the appellant and in favour of the 1st respondent.

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Other Citations: (2016)LCN/8982(CA)