Bime Ventures Ltd V. Linpak (Nig) Ltd (2022)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED LAWAL GARBA, J.S.C. 

In the judgment delivered on 8th of May, 2009 by the Court of Appeal, Lagos Division (Court below) in the Appellant’s appeal, it, among others, ordered that:-

“(3) The Deputy Sheriff of the High Court of Lagos State shall take immediate possession of 20 Type A locked up shops at Awolowo Market, Olosa, Mushin, Lagos and vest same on the defendant/counter-claimant.”

Aggrieved by the order, the Appellant brought this appeal on a lone ground contained on the Notice of Appeal dated 18th May, 2009 which was amended by the Amended Notice of Appeal filed on the 9th February, 2022, deemed on the 10th February, 2022; the date of the hearing of the appeal. The Amended Notice of Appeal retains the sole ground of appeal which I can afford to set out in details, as follows:-

“1. ERROR IN LAW

The learned justices of the Court of Appeal erred in law when they relied on the provision of Section 15 of the Court of Appeal Act to order the Deputy Sheriff of the High Court Lagos State to take immediate possession of 20 type A lock-up shops at Awolowo Market, Olosa, Mushin, Lagos State and vest same in the defendant/counter-claimant (Respondent).

PARTICULARS IN ERROR

a. It is trite law that in the exercise of its power under Section 15 of the Court of Appeal Act, the Court of Appeal can only make such orders or grant such reliefs as the trial Court is entitled to make or grant.

b. It is trite law that a Court is not charitable institution and should not grant a party a relief not claimed.

c. The respondent had no claim in its counter-claim at the trial Court for an order that the Deputy Sheriff of the High Court of Lagos State shall take immediate possession of 20 type A lock-up A shops at Awolowo Market, Olosa, Mushin, Lagos State and vest same in the Respondent (Defendant/Counter-Claimant).

d. The Respondent can only get possession by a subsequent proceeding.

e. The learned justices of the Court Appeal did not avert their minds to the fact that apart from declaratory reliefs the respondent has a counter-claim for an injunctive relief as a consequential order.

f. It is trite law that a declaratory relief was not executor or capable of enforcement unless it is coupled with an injunctive relief.

g. The learned justices of the Court of Appeal did not grant the respondent’s counter-claim for an injunctive relief.

h. Section 15 of the Court of Appeal Act does not empower the learned justices of the Court of Appeal to grant a relief not claimed by the respondent in its counter-claim at the trial Court.”

In line with the requirements of the Rules of this Court, learned Counsel for the parties filed briefs of argument for the prosecution of the appeal as follows:-

1. Appellant’s Amended Brief, on the 9th of February, 2022, deemed on 10th February, 2022.
2. Respondent’s Brief; on the 4th of January, 2011 and
3. Amended Appellant’s Reply Brief; on the 9th of February, 2022 and deemed on 10th February, 2022.

Expectedly, a sole issue was formulated from the single ground of the appeal in terms thereof, in the Amended Appellant Brief, thus:-

“Whether the learned justices of the Court of Appeal were right in relying on Section 15 of the Court of Appeal Act to order the Deputy Sheriff of the High Court of Lagos State to take immediate possession of Twenty Type A lock-up shops at Awolowo Market, Olosa, Mushin, Lagos State and vest same in the respondent.”

In substance, the arguments by the Learned Counsel for the Appellant under the issue are to the effect of the Respondent did not claim the relief in the terms granted by the Court below and so since the trial Court could not have granted the relief which was not sought in the counter-claim by the Respondent, Section 15 of the Court of Appeal Act could not be used by the Court below in granting the order complained of. Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423, at 613, 655 and 707, Faleye v. Otapo (1995) 5 NWLR (pt. 381) 1 at 33, Aghadiuno v. Onubogu (1998) 5 NWLR (pt. 548) 18 at 42 and Ekpenyong v. Nyong (1975) 2 SC, 71 at 80-81 are cited and it is contended that the order for custody or possession of the lock-up shops cannot be viewed as ancillary to the prayers of the Respondent for declaration of title thereof.

In further argument, learned counsel for the Appellant, relying on Oyeyemi v. Irewole Local Government (1993) 1 NWLR (pt. 270) 462 at 479, submits that the law is trite that a declaratory relief is not executory or capable of enforcement unless it is coupled with an injunctive relief. He said because the Court below did not grant the injunctive relief claimed by the Respondent it was wrong to have granted and made the declaratory order.

The Court is urged to allow the appeal, in conclusion, and set aside the order made by the Court below.

The Learned Counsel for the Respondent adopted the issue for decision as couched for the Appellant and argues that the Court below was right to have made the order under or pursuant to the provisions of Section 15 of the Court of Appeal Act which allows it to reframe or reformulate a party’s case to reflect the actual desire of the party and to make it executable, on the authority of the decisions by the Court below in F.A.A.N. v. Green Stone Ltd. (2009) 10 NWLR (pt. 1150) 624 at 651 and Akindele v. Abiodun (2009) 11 NWLR (pt. 1152) 356 at 392, among other cases. Learned Counsel says it was in order to make the relief for injunction and possession claimed by the Respondent in its counter-claim executable that the order complained of was made by the Court below as provided for under Section 15 of the Court of Appeal Act since the trial Court has the power to make it under Section 14 of the High Court Law of Lagos State. ​The case of Balogun v. Agbesanwa (2001) 17 NWLR (pt. 741) 118 at 137-138 is referred to and it is argued that it will be preposterous to say that the Respondent did not seek to take possession of the shops in question in the counter-claim.

The Court is urged to dismiss the appeal.

In the Reply Brief, it is said that the case of F.A.A.N. v. Green Stone Ltd. (supra) does not support the grant of the order under Section 15. Also, that Section 14 of the trial Court’s law merely gave it the discretion to make consequential orders, which the order complained of, is not.

Resolution of the issue:

It may be recalled that I have at the beginning of this judgment, set out the order made by the Court below pursuant to the provisions of Section 15 of the Court of Appeal Act which the Appellant, strenuously argues is wrong in law.

Now, Section 15 of the Court of Appeal Act provides that:-

“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by Court of competent jurisdiction.”

​As can easily be observed, these provisions, for the purpose of this appeal, grants to the Court below, generally, full jurisdiction over the whole proceedings in an appeal, as if the proceedings had been instituted in that Court as a Court of first instance. In essence, the Court below is vested with the jurisdiction of the Court of first instance in dealing with an appeal against the decision of a lower Court. All the powers exercisable by the Court of first instance or a trial Court in a matter brought before it, are, by virtue of the provisions, vested in the Court below in appeals brought against the decisions of that 1st instance or trial Court as if the proceedings in the appeal had been commenced, initiated or instituted in the Court below as the Court of first instance or trial Court. The powers so vested in the Court below include, the power to re-hear the case in whole or in part, as the circumstances may warrant or as it may deem fit and to “make any order necessary for determination at the real question in controversy in the appeal.”

In stating the extent of the powers conferred on the Court below by and under the provisions of Section 16 (15) of the Court of Appeal Act, this Court, (Full Court) per Onnoghen, JSC, in the case of Dapianlong v. Dariye (2007) 4 SC (pt. III) 118, (2007) 8 NWLR (pt. 1036) 332, had explained that:-

“It is clear from the above provisions that the powers conferred on the Court of Appeal by Section 16 of the Court of Appeal Act are very wide indeed as they enable the appellate Court to exercise all the powers of a Court of first instance. It is also settled law that Section 16 of the Court of Appeal Act can be involved in order to facilitate the speedy administration of justice, as it is designed to avoid multiplicity of proceedings and hearings. Instead of sending the case back to the trial Judge for; trial, Section 16, in an appropriate case. Empowers the Court of Appeal to assume jurisdiction of the trial Court and determine the real question in controversy between the parties so as to save much needed time in the administration of justice in this country.”

His Lordship, however, cautioned that:-

“…Section 16 is not an all-purpose or limitless power of the Court of Appeal to divest the High Court of the original jurisdiction conferred on it by law. It is settled law that the Court of Appeal cannot hide under Section 16 to expand its jurisdiction. The powers conferred on the Court of Appeal by Section 16 of the Court of Appeal Act are exercisable by that Court where certain fundamental conditionalities are met, such as:-

(a) Availability of the necessary materials to consider and adjudicate in the matter;

(b) The length of time between the disposal of the action at the trial Court and the hearing of the appeal;

(c) The interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial Court for rehearing and the hardship such an order would cause on either or both parties to the case.”

From this position of the law, in dealing with an appeal before it, the Court below, by dint of the provisions in Section 15 (or 16) of the Court of Appeal Act, possesses the full and all judicial powers and jurisdiction of first instance or trial Court to take appropriate steps, make necessary orders and give directives as if the appeal was a proceeding brought before it as a first instance or trial Court.

It was in line with the provision in Section 15 (or 16) of the Court of Appeal Act, that the Court of Appeal Rules, 2007 (applicable at the time the order complained of was made) in Order 6, Rule 2 (1) provided, inter alia, that:-

“All appeals shall be by way of rehearing … ”

​In simple terms, by these provisions, all appeals brought before the Court below were to be dealt with or treated by way of re-hearing of the real issues or questions in controversy or dispute between the parties as presented in the case before the Court of first instance or trial Court and in respect of which that Court rendered its decision against which the appeal was filed. Unlike the Court of first instance or trial Court, though, the re-hearing of an appeal by the Court below is done and conducted on the printed Record of Proceedings of the actual trial or hearing at the first instance or trial Court transmitted from that Court to the Court below as the Record of the Appeal. The re-hearing of an appeal before the Court below is therefore, primarily, based on the printed record of what transpired, happened or occurred in the proceedings conducted by the first instance or trial Court forwarded for the purpose of prosecuting the appeal, to the Court below. Re-hearing by the Court below involves a review and consideration of the facts and all the material evidence produced by the parties before the first instance or trial Court, along with the evaluation of the evidence, inferences drawn from and findings made by that Court on the evidence as well as the decision/s reached in the case in line with the complaints made against the decision/s in the grounds of appeal, as contained in the pointed Record of Appeal. Therefore, except where necessary, the re-hearing in an appeal before the Court below does not mean or involve the hearing of witnesses or taking/receiving evidence.

In the present appeal, the Court below treated and dealt with the appeal before it by way of re-hearing in the above context and arrived at the decision and conclusion that:-

“It is clear from the proceedings at the Court below that the counter claimant had established and was entitled to the reliefs claimed. The trial Court however preferred to make the claims it formulated itself.”

Thereafter, it, pursuant to Section 15 of the Court of Appeal Act, made the following orders:-

“(1) The order that the claimant pay the sum of N20 million to the defendant is incompetent and it hereby avoided.

(2) It is hereby declared that the counter-claimant is entitled to twenty Type A lock up shops in the market known as Awolowo Market, Olosa, Mushin, Lagos.

(3) The Deputy Sherriff of the High Court of Lagos State shall take immediate possession of 20 Type A locked up shops at Awolowo Market, Olosa, Mushin, Lagos and vest same on the defendant/counter-claimant.

(4) Each party to bear its own costs.”

Apparently, these orders were made in consequence of the decision and conclusion preceding them in order to give effect thereto. In other words, the orders which followed the decision and conclusion by the Court below were made to give effect to the decision and conclusion, as consequential orders which flow directly therefrom.

A consequential order in relation to a decision by a Court of law has received a uniform and consistent judicial definition by this Court in numerous decisions including Obayagbona v. Obazee (1972) 5 SC, 254-255, Akinbobola v. Plison Fisko Nig. Ltd. (1991) 1 NWLR (pt. 167) 270, Ifeadi v. Atedze (1998) 13 N WLR (pt. 581) 213, Liman v. Mohammed (1999) 9 NWLR (pt. 617) 122, Adekanye v. Compt., Nig. Prisons Services (1999) 14 NWLR (pt. 637) 117, Adedoyin v. Sonuga (1999) 13 NWLR (Pt. 635) 357, A.G. Federation v. A.I.C. ​(2000) 6 SC (pt. 1) 175, (2000) 10 NWLR (pt. 675) 293, Awoniyi v. The Reg. Trustees of R. Order, AMORC, Nig. (2000) 6 SC (pt. 1) 103, (2000) 10 NWLR (pt. 676) 522, Owena Bank, Nig. Plc v. Nig. Stock Exch. Ltd. In Re: Securities and Exch. Commission (1997) 8 NWLR (pt. 515) 1, (1997) All NLR, 137 Eagle Super Pack Nig. Plc v. A.C. B. Plc. (2006) 19 NWLR (pt. 1013) 20, Amaechi v. INEC (2008) 5 NWLR (1080) 227, (2008) 33 NSCQR (pt. 1) 332, Uba v. Etiaba (2010) 10 NWLR (pt. 1202) 343, Eze v. Gov., Abia State (2014) LPELR-23276 (SC). In all these decisions, and many more, a consequential order was defined, generally, to mean an order which is not merely incidental to a decision, but also one necessarily flowing directly and naturally from and inevitably consequent upon it. It is an order made to give effect to a decision reached by a Court in a case in favour of a party in order to enable the party to reap the benefit of the decision and it is usually made by the Court on its own motion and at its discretion in exercise of the inherent jurisdiction to give legal effect to its decisions.

​The order therefore needs not be expressly asked or prayed for by the parties before the Court could properly and validly make it in appropriate cases. See Ekpenyong v. Nyong (1975) 2 SC, 7 at 81, Nneji v. Chukwu (1988) 3 NWLR (pt. 81) 184 at 208, Ladejobi v. A. G. Federation (1982) 3 NCLR, 564, Sadiq v. Bundi (1991) 8 NWLR (pt. 210) 443 at 457, Usiobaifo v. Usiobaifo (2005) 3 NWLR (pt. 913) 665 at 675 Amaechi v. INEC (supra), Ogunyande v. Oshunkeye (2007) 15 NWLR (pt. 1057) 218, Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423, Eze v. Gov., Abia State (supra).

The learned counsel for the Appellant has argued that the Respondent did not specifically ask for or seek the order for the Deputy Sheriff of the trial High Court to take immediate possession of the twenty shops in question and vest same on the Respondent in the counter-claim made against the Appellant.

However, in the Respondent’s Statement of Defence and Counter-claim dated 30th December, 2003, which appears at pages 26-27 of the Record of Appeal, the following reliefs were sought from the trial Court against the Appellant:-

“13. WHEREUPON the Defendant counter-claims against the Plaintiff for:

(i) A DECLARATION that by virtue of an agreement dated the 3rd of January, 2003 and entered into between the Plaintiff and the 1st Defendant and receipt date Thursday, May 8th, 2003 issued by the 1st Defendant the Plaintiff is the rightful owner of 20 (twenty) lock-up shops (type A) in the market known as Awolowo Market, Olosa, Mushin, Lagos State.

(ii) A DECLARATION that whatever the 2nd Defendant’s interest is in the property known as Awolowo Market, Olosa, Mushin, Lagos State, it does not supersede the Plaintiff ownership of 20 (twenty) lock-up shop (type A) in the said market.

(iii) AN ORDER of injunction restraining the Defendants, whether by themselves, their officers, agents, servants, privies or otherwise howsoever from selling, leasing, transferred e.t.c. all the type A lock-up shops in Awolowo Market, Olosa, Mushin, Lagos State except the plaintiff first takes physical possession of twenty of the said shops.”

These reliefs were set out at paragraph 3.4. on page 7 of the Amended Appellant’s Brief and it was said that relief (ii) was abandoned and struck out by the trial High Court.

​Looking calmly at these reliefs, it cannot seriously be contended that the reliefs (i) and (iii) claimed by the Respondent do not seek for possession of the twenty (20) shops in dispute having claimed ownership thereof in relief (i) and the Respondent as plaintiff, first taking possession thereof before the Appellant sold, leased or transferred them in relief (iii). The purport of the reliefs (i) and (iii) of the Respondent’s Counter-Claim against the Appellant was to, seek for an order of possession of the shops, the ownership of which was claimed expressly, from the trial Court.

Possession of the shops in question, whether immediate or subsequent, was a relief unequivocally sought for and claimed by the Respondent against the Appellant in the relief (iii) of the Counter-claim and so it is not correct for the Appellant’s counsel to say that the order made for immediate possession of the shops was not sought or asked for by the Respondent and that the trial High Court had no power to have granted same for the Court below to be vested with the jurisdiction to do so.

​It would appear that the real complaint by the Appeal is on the form, manner or terms of the order made by the Court below for possession of the shops to be taken away and be vested in the Respondent rather than the order for possession itself. The mere fact the Court below granted the possession in the terms, it did, i.e. for the Deputy Sheriff to take immediate possession and vest same in the Respondent did not in any reasonable and meaningful way or manner, derogate from the relief for possession sought by the Respondent in the counter-claim.

All that was required of the Respondent was to pray or seek for possession of the shops in question to be given or handed over to it in the counter-claim as a specific relief in the event it succeeded in proving the claim of ownership thereto.

It was under no legal requirement and had no duty to dictate how the possession of the shops should be taken over by the trial High Court from the Appellant and then be vested in or handed over to it as that is at the unfettered discretion of that Court.

​The above apart, the order in the terms made by the Court below was to give effect to the decision and conclusion that the Respondent, as counter-claimant, had established and was entitled to the reliefs claimed in the counter-claim. Since the Respondent had established the claims for ownership and entitlement to the possession of the shops in question to the satisfaction of the Court below, in the proceedings before it, it has the inherent power and jurisdiction to make orders in whatever terms, that are incidental, ancillary and consequential to that decision and conclusion and which flow directly therefrom to give practical effect thereto. The order made by the Court below for possession of the shops to be taken from the Appellant and be vested in the Respondent is one which naturally, usually and expectedly, should flow from and follow the decision and conclusion that the claims for ownership and entitlement to possession were established and proved by the Respondent.

In the result, it is gross misconception to argue that the Respondent did not pray or seek for possession and that the order for possession in the terms made by the Court below was not ancillary and consequential to the decision and conclusion that the Respondent had established ownership of and entitlement to the possession of the shops. With respect due to the learned counsel for the Appellant, the argument lacks and defies discernment and perspicacity and so legally untenable on the facts and circumstances of this appeal.

On the whole, the appeal is devoid of merit and is dismissed, accordingly.

The Respondent is entitled to costs for prosecuting this twelve (12) years old appeal which are assessed at Two Million Naira (N2,000,000.00) only to be paid by the Appellant.

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SC.129/2010