Blog

Fidelis Ejike O. Ume & Ors. V. Nigeria Renowned Trading Co. Ltd. (1997) LLJR-CA

Fidelis Ejike O. Ume & Ors. V. Nigeria Renowned Trading Co. Ltd. (1997)

LawGlobal-Hub Lead Judgment Report

TOBI, J.C.A. 

The dispute which has given rise to the motion has come a long way. It commenced from the High Court Onitsha, and got to the Supreme Court. It is making a repeat journey or trip. I need not tell the full story in this interlocutory matter. That has to wait probably, till the appropriate time. For now, I have to deal with the application brought by the applicant, Chief Dr. F. Ejike O. Ume. It is for stay of proceedings “in Suit No.0/403/92 pending the determination of the appeal against the-order of the Onitsha High Court contained in the ruling of His Lordship Hon. Justice C.J. Okoli on the 3rd day of April 1995 refusing to hear two motions which, inter alia, challenged the jurisdiction of the court and striking them out without hearing the applicants.”

Moving the application in person, Chief Dr. Ume, in his own right as Senior Advocate of Nigeria, relied on Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1979, Order 3, Rule 3 of the Court of Appeal Rules, the 36 paragraph affidavit in support as well as the exhibits Verified therein. He submitted that where a party has not been given an opportunity to be heard, or defend himself or through counsel of his own choice, that amounts to breach of the principle of fair hearing, as enshrined in Section 33 of the 1979 Constitution. He relied on F.O.N. Atake v. Chief Nelson Afejuku (1994) 9 NWLR (Pt.368) 379 and Elder Brown v. Elder Brown (1994) 7 NWLR (Pt.355) 217 at 232 – 233. Elder Brown v. Elder Brown (1994) 7 NWLR (Pt.355) 217 at 232 – 233.

He contended that where an applicant has challenged the jurisdiction of the lower court which is refused, an appellate court will grant it. The court from where the appeal is lodged and the court to where the appeal is lodged have a duty to preserve the res and that res is the appeal, learned Senior Advocate submitted. He relied on Kotoye v. Saraki (1993) 5 NWLR (Pt.296) 710 at 723.

Learned applicant contended that there are arguable points of law in the appeal. He referred to the Notice of Appeal and urged the court to grant the application in the interest of the preservation of the res.

Mr. B. O. Anyaduba, the 2nd respondent associated himself with the submissions of the applicant and urged the court to grant the application.

Learned Senior Advocate for the plaintiff/respondent, Mr. G.R.I. Egonu, in opposing the application relied on the 47 paragraph counter-affidavit sworn to on 28th June, 1996, the 14-paragraph counter -affidavit sworn to on 30th January, 1997 as well as the 39-paragraph affidavit sworn to on 3rd March, 1997.

Referring the court to the relevant paragraphs of the counter-affidavits, learned Senior Advocate submitted that the lower court overruled the objection of the applicant to jurisdiction and that a similar application for stay of proceedings at the lower court was dismissed on 19th June, 1995, and the applicant had 15 days within which to file a similar application in this court. Learned Senior Advocate argued that once an issue of jurisdiction has been previously dismissed, similar issue cannot be entertained.

Relying on Order 3 rule 3(3) of the Court of Appeal Rules, 1990, learned Senior Advocate submitted that the present application must be dismissed because it was not brought within the prescribed period of 15 days and no leave to extend time having been sought and granted.

The applicant, in his reply, submitted that the application is competent by virtue of section 6(6) of the 1979 Constitution and Order 3 Rule 3(4) of the Court of Appeal Rules. He submitted that by the combined effect of the constitutional provision and Order 3 Rule 3(4) of the Court of Appeal Rules, this court can entertain the application. Learned Senior Advocate argued that since Order 3 Rule 3(4) appears directory and not mandatory, this court can mitigate anything in the rule. To the applicant, the position should have been different if the mandatory “shall” was used. He urged the court to discountenance the decision of Chief Ojukwu v. Onyeador, supra, because the facts are not the same. He pointed out that while section 6(6) is a constitutional provision, Order 3 Rule 3(3) is a rule of court.

The applicant submitted that the counter affidavits of 39 paragraphs and 47 paragraphs cannot be relied upon because they were not duly exhibited in the counter-affidavit of 14 paragraphs. He urged that paragraph 13 of the counter-affidavit of 14 paragraphs does not avail the respondent because the facts in a counter-affidavit must be referrable to the motion in support of the relevant motion. Since the two counter-affidavits of 39 paragraphs and 47 paragraphs were in response to the affidavits which have been withdrawn they cannot stand, applicant contended. Once a motion is struck out, the affidavits in support as well as the counter-affidavit, including exhibits annexed thereto, go with the motion, applicant argued. The court can only look at live documents in its file and not dead documents applicant further argued.

Mr. Egonu, S.A.N., pointed out that the counter-affidavit of 39 paragraphs is before the court, and the court is entitled to look at the documents in its file, although a motion is struck out. He urged the court to look at all the counter affidavits.

There are quite a handful of affidavits which have generated some heat in the different positions taken by parties and or counsel. Applicant sought leave of court to withdraw his motion dated 18th October, 1996 and filed on 13th November, 1996. The motion was accordingly struck out. What is the legal status of an affidavit which is deposed to in a motion struck out? The applicant submitted that the affidavit is in law dead. I agree with him. A motion which is struck out of an affidavit which is deposed to in a motion struck out? The applicant submitted that the affidavit is in law dead. I agree with him. A motion which is struck out goes with the supporting affidavit, including exhibits, if any. What happens to counter-affidavit in respect of the motion struck out? The applicant and learned Senior Advocate for the plaintiff/respondent take divergent positions. While the applicant submits that the counter-affidavit is also dead, learned Senior Advocate submits that the court can make use of it. The applicant is correct. With respect, learned Senior Advocate is wrong. Let me try to draw a fairly remote analogy. There cannot be a statement of defence without a statement of claim. There cannot be a Reply without a statement of defence. Similarly, there cannot be a respondent’s brief without an appellant’s brief. There cannot be a Reply brief without a respondent’s brief. Therefore there cannot be a counter-affidavit without an affidavit in support of a motion. Accordingly, where an affidavit in support of a motion is gone, a counter-affidavit based on it can no longer stand. It goes with the affidavit in support.

As indicated above, the motion which was struck out by this court on 5th March, 1997 at the instance of the applicant was dated 18th October, 1996 and filed on 13th November, 1996. In addition, two motions of Mr. Anyaduba were struck out on 5th March, 1997, following an application for their withdrawal. They are CA/E/89/M1/96 dated 13th November, 1996 and CA/E/89/M4/96 dated 24th February, 1997. By this, the only counter-affidavit of the plaintiff/respondent which is current and therefore relevant is that of the 14 paragraphs dated 3rd March, 1997 and filed on the same day. Paragraph 9 of that counter-affidavit is relevant. It reads:-

“That the Honourable Justice C.J. Okoli after refusing the application for stay of proceedings in the above case on the 19th day of June, 1995, there and then referred the case to the Administrative Judge to assign the case to another Judge for hearing and determination, that it was the Administrative Judge of the High Court, Onitsha that assigned Suit No. 0/403/92 to His Lordship, the Honourable P.I. Amaizu for hearing and determination.”

The relevant averment is the first arm which is the refusal of the application for stay of proceedings by Okoli, J. on 19th June, 1995.

It is clear from paragraph 9 of the counter-affidavit dated 3rd March, 1997 that this application was brought after the 15 days period provided for under Order 3 Rule 3(3) of the Court of Appeal Rules, 1990. The sub-rule provides:”

Where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the refusal”

The applicant submitted that the provision is not mandatory but permissive in the light of the word “may”. I do not agree with him. In my view, the word “may” in the context is not used in contradistinction to “shall” but rather it conveys a discretionary power on the part of an applicant. In other words, an applicant whose application has been refused in the court below, could if he so wishes, make a similar application to this court. The word “may” underscores the fact that an applicant is not under a duty to make a similar application in this court. As a matter of fact, there are known cases where applicants stop at the court below and decide to hear the matter on its merits rather than pursuing another application for stay of proceedings. My understanding of the provision is that if an applicant decides to, make a similar application, he must do so within a period of 15 days after the date of the refusal of the first application by the court below.

Where an applicant fails to do so, the rules enjoin him to seek for enlargement of time to enable him make the application. It is trite law that where an enabling rule provides for leave to file a court process, failure to seek and obtain the leave, before filing the process will automatically render the process incompetent, as the court lacks jurisdiction to entertain it. See generally Tilbury Construction Co. Ltd and another v. Ogunniyi (1988) 2 NWLR (Pt.74) 64; Metal Construction (West Africa) Ltd. v. Migliore and Others (1990) 1 NWLR (Pt. 126) 299; Chief Ojukwu v. Miss Onyeador (1991) 7 NWLR (Pt.203) 286. Accordingly, it is my view that this application which was brought out of time is incompetent as it offends Order 3 Rule 3(3) of the Rules of this court.

What should this court do in the circumstance? Should the court dismiss the application on the ground that it is incompetent or should it be struck out? That is the next consideration. There is a procedural distinction between dismissal of a matter and striking it out. Black’s Law Dictionary defines dismissal as “an order or judgment finally disposing of an action, suit, motion, etc., without trial of the issues involved”. With respect, the second limb of the definition may be correct in American law, but is not so in Nigerian Law. In the latter, an action, suit or motion which has been fully tried could be dismissed. As a matter of law, it is such category of matters that attract more the juridical penalty of dismissal. This is not to say that Nigerian courts do not dismiss matters coming within the embrace of Black’s Law Dictionary definition of the word. They do.

In Olowu and Others v. Abolore and Another (1993) 5 NWLR (Pt.293) 255, the Supreme Court held that the Court of Appeal Rules give the Court of Appeal the power to dismiss an appeal in the following circumstances, viz: (a) When there is non-compliance on the appellant’s part with the conditions of appeal. This is by virtue of Order 3 rule 20(1). (b) When the appellant fails to appear when his appeal is called for hearing. (c) When the appellant fails to file his brief of argument within the time provided in Order 6 rule 2 or within the time as extended by the court to do so. This is by virtue of Order 6 rule 10. See also Onumajuru v. Akanihu and Others (1994) 3 NWLR (Pt.334) 623. The obvious should be stated that an appeal which is not meritorious will be dismissed.

If a matter is dismissed on its merits, it cannot be resuscitated. It finally dies and the pleas of res judicata (if a civil matter) or autrefois acquit or autrefois convict (if a criminal matter) will avail the other party. It is not correct law that any matter dismissed cannot be resuscitated. It depends upon the factual situation and the particular order of the court in the light of the enabling statute or law.

On the other hand, a matter struck out could be revived by the party. This he could do either by repeating the same court process or by an amended form; in either case, returning the process in its original or amended content to the cause list. The order of striking out is mostly invoked where either the court process is incompetent or the party lacks competence or locus standi. Similarly, where the court lacks competence or jurisdiction to hear the matter, the appropriate order to make is one of striking out. This is to enable the party have another look at the process and see whether he can carry out, what one may naively call “some repairs”, to bring back or return the matter to the jurisdictional “stream” of the court.

It is available only as a general statement of law that while an order of dismissal puts an end to a claim, an order of striking out, like that of non-suit, keeps the claim alive. I say so because there are instances where a matter dismissed can return to the cause list. For instance, a matter dismissed by virtue of Order 3 Rule 20(1) could be restored by virtue of Order 3 Rule 20(4) of the Court of Appeal Rules, 1990. Similarly, a trial Judge has the jurisdiction to strike out a matter with an order barring the party from the institution or commencement of the same action where, for instance, an enabling statute or law so specifically provides or where the matter is an abuse of the court or judicial process.

Mr. Egonu urged the court to dismiss the motion. He did not advance any argument to justify the submission. Dismissal of an action in a court, in the context of final disposal of the matter, is the most punitive measure against a plaintiff or applicant. This is because he is barred for all times and forever from instituting or commencing the action. This calls for an exercise of great caution on the part of a court to give such an order of dismissal in limine. While a court must dismiss a matter in clearly deserving instances, it should not do so where striking out is an option which will meet the justice of the case. In Nigeria Airways Limited v. Lapite (1990) 7 NWLR (Pt.163) 392, Wali, J.S.C. warned at page 405:

“The power of the court to dismiss a case in limine should be exercised with utmost circumspection and not lightly as a matter of course.”

It is not my understanding of the law that the moment a motion is fully heard and is not successful, the order must invariably be that of dismissal. It is not so. If the full hearing of the motion relates to the merits of the motion, then an order of dismissal shall lie. But where the motion is refused on technical grounds of procedure without hearing the merits, an order of striking out is appropriate. In my humble view, the latter is the situation here.

It is clear to me that the motion before this court is incompetent on the ground that it was brought out of time. Being incompetent, it is struck out and I do so by awarding N1,000.00 costs in favour of the plaintiff/respondent.


Other Citations: (1997)LCN/0274(CA)

Kenlink Holdings Ltd. & Anor. V. Realistic Equity Investment Ltd. & Anor. (1997) LLJR-CA

Kenlink Holdings Ltd. & Anor. V. Realistic Equity Investment Ltd. & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A. 

By a writ of summons dated 27/3/91 filed at the High Court of Justice Kano State at Kano, the 1st respondent as plaintiff claimed against the appellants who were 1st & 2nd defendants respectively the sum of N142,290.00 being the outstanding balance of a short term loan advanced to the 1st appellant. However, before the undefended suit could come up for hearing on the return date, the appellants had filed their notice of intention to defend the action which necessitated the action being transferred to the ordinary cause list for hearing.

Consequent upon this development, pleadings were dully filed and exchanged between the parties. Before the case proceeded to hearing on the merits, learned counsel to the plaintiff filed a motion on notice pursuant to ORDER 30 RULE 3 OF THE KANO STATE HIGH COURT (CIVIL PROCEDURE) RULES, 1988 asking for judgment in the sum of N63,168.00 said to have been admitted by the defendants in their joint statement of defence. The motion for judgment was heard by the lower court on 27/4/92 and in his ruling delivered the same day, the learned trial Judge B.S. Adamu J. granted the application and entered judgment for the plaintiff in the sum of N63,168.00 while the balance of N77,000.00 of the claim was to proceed to trial.

The defendants, now appellants who were not happy with this judgment had appealed against it by a notice of appeal containing 2 grounds of appeal from which the following 2 issues were formulated in the appellants’ brief of argument filed in accordance with the rules of this Court.

“1. Whether the learned trial Judge properly reviewed, appraised, assessed, evaluated and considered all the relevant and material issues canvassed and raised by the parties both in their pleadings and in their affidavit evidence filed pursuant to the motion for judgment.

  1. Whether from the state of pleadings filed by the plaintiff and the 1st and 2nd defendants, the trial Judge was right in holding that there was admission of liability by the 1st and 2nd defendants at that stage of the proceedings.”

The 1st respondent had in its brief of argument identified only one issue for the determination of the appeal. According to the 1st respondent, the only issue for determination of this appeal is the appellants’ Issue No.2.

Although the 1st respondent also raised what it called “Preliminary Issues” at pages 3-4 of its brief of argument on the competence of the appellants’ appeal which the 1st respondent regarded as an appeal against interlocutory decision requiring the leave of the lower court or of this Court, no notice of the preliminary objection was given in accordance with OR.3 R.15(1), (2) & (3) of the rules of this Court. In the absence of such notice, the preliminary objection itself is not competent and accordingly must be ignored in the determination of the appeal. In any case it is absolutely wrong to describe the judgment of the lower court in the sum of N63,168.00 in favour of the 1st respondent as interlocutory simply because the balance of sum of N77 ,000.00 claimed was proceeding to trial. That judgment is indeed a final judgment for all intents and purposes. As the judgment was delivered on 27/4/92 and the notice of appeal was filed on 19/5/92, the appeal is clearly well within time.

Be that as it may, I entirely agree with the 1st respondent that the only issue for determination in this appeal is whether from the state of pleadings of the parties filed at the lower court, the learned trial Judge was right in holding that there was admission in the appellants’ joint statement of defence to justify entering judgment as he did.

The appellants have argued in their brief of argument that their statement of defence does not contain any admission of liability to the sum which is the subject of the judgment against them. That all the appellants did in their statement of defence was to plead the facts on the transaction between the parties. Nowhere did they admit liability expressly or by any implication to the sum awarded to the plaintiff now 1st respondent in the judgment of the lower court based on the alleged admission. BULLEN & LEAKE and JACOB’S PRECEDENTS OF PLEADINGS 12TH EDITION PAGES 73, 77, 78 were cited and relied upon by the appellants in support of their arguments on this issue. That although the appellants admitted collecting the sum of N187,000.00 from the 1st respondent in paragraph 4(b) of their statement of defence, the appellants proceeded and explained fully how that sum was expended in the joint venture. Learned counsel to the appellants pointed out that the learned trial Judge did not consider the full implication of paragraph 15 of the statement of defence. That relying on the case of Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267, the failure of the trial court to properly consider the respective cases of the parties on pleadings and the affidavit before the court is fatal to the judgment now on appeal, concluded the learned counsel to the appellants who urged this court to allow the appeal.

For the 1st respondent however, it was submitted that by implication from the averments in the appellants’ statement of defence, there was clear admission of the sum awarded by the lower court in its judgment which was given in proper exercise of the power of that court under OR.30, R.3 OF THE KANO STATE HIGH COURT (CIVIL PROCEDURE) RULES 1988. That the judgment of the lower court was quite in order having regard to a number of decisions of the superior courts in Nigeria including the case of Mosheshe General Merchant Ltd. v. Nigerian Steel Products Ltd. (1987) 2 NWLR (Pt. 55) 110 at 120. Concluding his submission on the issue, learned counsel to the 1st respondent maintained that on the peculiar facts of this case, the learned trial Judge was right in his appraisal of the relevant facts and in the finding that the appellants had admitted owing the amount for which the learned trial Judge entered judgment for the 1st respondent.

Now, the provisions of OR.30 R.3 of THE KANO STATE HIGH COURT (CIVIL PROCEDURE) RULES 1988 also quoted and relied upon by the learned counsel for the 1st respondent at page 6 of the 1st respondent’s brief reads:”

Where admission of facts are made by a party either by his pleadings or otherwise, any other party may apply to the court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the court may give such judgment, or make such order on the application as it thinks just. An application for an order under this rule may be made by motion or summons.” It is quite clear from the provisions of this rule that for the rule to apply, there must be an admission in the pleadings or otherwise by a party or parties to a case and that the trial Judge has a discretion, even where the admission exists or is proved to give judgment or grant an order as may appear just to the trial Judge.

The word admission is a statement, oral, or documentary, which suggests any inferences as to any fact in issue, or relevant fact and which is made by any of the parties to a dispute and does not cease to be such admission simply because it is not pleaded. See Section 19 of the Evidence Cap. 112 of the Laws of the Federation 1990 and African Continental Bank Ltd. v. Gwagwada (1994) 4 SCNJ (Pt.11) 268 at 279; (1994) 5 NWLR (Pt.342) 25. If however the party relying on admission wishes to rely on it as an estoppel, the issue of pleading will be relevant. In the present case, the 1st respondent as plaintiff pleaded in paragraphs 5 and 15 of its statement of claim as follows:-

“5. The second defendant on behalf of himself, the 1st defendant and its subsidiaries approached the plaintiff prior to the 18th December, 1990 for a short term loan of N187 ,000.00 for one month to supply 4 strips of 360 tons of soya beans to Protein Derivatives Ltd. a company with its office in Kano. The plaintiff being a finance company then agreed to advance the short term loan on the following conditions:-

(a) That the interest/profit of the plaintiff on the cash advance of N187,000.00 would be N77,000.00 which would be consolidated with the cash advance which would make the total advance amount to N264,000.00.

(b) That this N264,000.00 would be the total money to be repaid by the 1st and 2nd defendants within 30 days.

  1. In an attempt to recover the loan facilities, the plaintiff called upon Protein Derivatives Limited to honour its undertaking to domicile payment on its contract with the 1st and 2nd defendants at least on the supply made and the plaintiff at two different times was able to recover a total sum of N121,710.00 paid on two occasions. The plaintiff kept the defendants informed of this development and the plaintiff will rely on its two letters dated 25th January, 1991 and that of 12th February, 1991 to the 3rd defendant who is hereby given notice to produce same at the trial.”

In response to these paragraphs in the statement of claim, the 1st and 2nd defendants now appellants averred as follows in paragraphs 3, 4 & 15 of their joint statement of defence:-

“3. Paragraph 5 of the statement of claim is admitted to the extent that the 1st defendant approached the plaintiff to finance the supply (sic) 4 strips of 360 tons of soya beans (3 trailer loads per trip to Protein Derivatives Limited (hereinafter called PDL).

  1. In further answer to paragraph 5 of the statement of claim, the 1st and 2nd defendants hereby state as follows:-

(a) That there was a written request to the plaintiff to finance the LPO from PDL by letter dated the 29th of November 1990. The said letter confirmed the modalities and terms of executing the contract.

(b) That the plaintiff accepted these terms by letter dated 10th December 1990, and advanced the sum of N187,000.00 to enable the 1st defendant to commence the project.

(c) That some of the terms of this arrangement were later reduced into formal agreement dated the 18th day of December 1990.

  1. The 1st and 2nd defendants deny paragraph 15 of the statement of claim and state in answer thereto that they are not indebted to the plaintiff to the sum of (sic) N142,690.00 or to any sum at all. In further answer thereto, the 1st and 2nd defendants aver as follows:-

(a) That the sum of N187,000.00 disbursed to the 1st defendant was to cover all the expenses to be incurred in the procurement and supply of Soya Beans to PDL.

The 1st respondent as plaintiff in its application for judgment by motion on notice asked for the following order –

“An order entering judgment for the plaintiff/applicant in the sum of N63,168.00 in this suit.”

although its total claim in the action is the sum of N142,290.00 as per paragraph 18 of the statement of claim. The learned trial Judge in entering judgment for the 1st respondent in the sum of N63,168.00 under ORDER 30 RULE 3 OF THE KANO STATE HIGH COURT (CIVIL PROCEDURE) RULES 1988 Stated as follows his reasons for giving judgment.

‘The application for judgment is for the principal sum of the loan given to the defendants for a business transaction. Although there was agreement as to sharing of profits and interests, the applicant/plaintiff is only claiming for the payment of the remaining balance of N63,168.00 which the 1st and 2nd defendants are yet to pay. They have earlier made payment (sic) N123,832.50 from the original sum of N187,000.00.

The 1st and 2nd defendants have not denied any liability and have not put any defence as to the time when they should be allowed to pay. The third defendant has not admitted having any amount in his custody and none of parties (sic) make any averments to this fact. So there should be judgment as of now against it for the repayment of the initial loan.”

It is quite clear that the learned trial Judge neither referred to the pleadings nor to any other admission to the sum of N63,168.00 said to have been made by the appellants to justify entering judgment against them. In fact, the learned trial Judge did not even make any specific findings that the appellants had duly admitted the sum in respect of which judgment was entered for the 1st respondent.

Therefore it is my view that without making a specific finding that appellants as defendants had admitted liability in the sum of N63, 168.00 to the plaintiff in their joint statement of defence or otherwise, the learned trial Judge was deprived of his power and discretion under OR.30 R.3 of the Kano State High Court (Civil Procedure) Rules 1988 to enter judgment for the plaintiff/1st respondent. The nature of the claim should be taken into account in determining what really constitutes a binding admission. In the present case nowhere in the joint statement of defence of the appellants did they admit the fact that the sum of N63,168.00 was due from them to the plaintiff, nor did they admit this fact through their counsel or by other means. It is quite clear from paragraph 18 of the 1st respondent’s statement of claim that the total amount being claimed by it in the action is the sum of N142,290.00 which claim was specifically denied by the appellants in paragraph 15 of their joint statement of defence earlier quoted in this judgment. Therefore quite contrary to the claim of the 1st respondent that the appellants had admitted its claim in their pleadings, what is contained therein is a denial of the claim. Undoubtedly, the statement of defence of the appellants in the circumstances of this case did not in anyway constitute a clear and unambiguous admission by the appellants of liability for the sum amount of N63,168.00 being claimed by the plaintiff in its motion for judgment to justify entering judgment against the appellants.

It is therefore the law that if an application is brought by a plaintiff under OR.30 R.3 of the Rules of the High Court for an order of judgment when there is no clear admission or where there is an admission which is not specific and categorical, such application cannot be granted because the circumstances or conditions which necessarily must be present in order to give the trial Judge power to exercise his discretion in favour of the applicant is non existent. See Mosheshe General Merchant Ltd. v. Nigerian Steel Products Ltd. (1987) 2 NWLR (Pt.55) 110 and National Bank of Nigeria Ltd. v. Guthrie (Nig.) Ltd. (1993) 3 NWLR (Pt.284) 643; (1994) 4 SCNJ 1 at 15. In other words in the absence of such circumstances the application is inchoate, ill-timed and therefore premature.

It is necessary to observe that R.3 of OR.30 of the Kano State High Court (Civil Procedure) Rules 1988 should not be read in isolation. It is certainly not difficult at all for any trial Judge to determine whether or not there had been an admission by a defendant in any given case to justify entering judgment for the plaintiff under R.3. This is because Rs. 1 & 2 of Or. 30 have already given the circumstances under which admissions could be made in the course of a trial. By R.I, an admission is made by a party by giving notice to that effect by his pleading or otherwise in writing that he admits the truth of the whole or any part of the case of the other party. An admission is also made under R.2 through leave of court obtained in a motion on notice by one party calling on the other party to admit any document or fact. In the present case, it is obvious that the alleged admission made by the appellants is contained in their statement of defence. However, it is quite plain that the appellants neither gave a notice in that statement of defence that they admitted the truth of the whole of the case of the 1st respondent nor gave notice admitting that part of the claim of the 1st respondent in respect of which judgment was entered by the learned trial Judge. Therefore it is not difficult to see that there was virtually no admission in terms of RULES 1 & 2 to warrant any judgment based on the admission under RULE 3 of the Rules.

This being an appeal against exercise of discretion by the lower court to enter judgment for the plaintiff for the part of the amount being claimed in the action, for the defendants now appellants to succeed in this appeal, they must show that the learned trial judge did not exercise his discretion in accordance with the law or that the discretion was not exercised judicially and judiciously. See Efetiroroje v. Okpalefe II (1991) 5 NWLR (Pt.193) 517 at 537. In the absence of a clear and unambiguous admission in the appellants’ statement of defence, coupled with the absence of specific finding by the learned trial judge that there was in fact admission by the appellants, the circumstances were clearly not ripe for the learned trial judge to have exercised his discretion under ORDER 30 RULE 3 of the Rules in favour of the 1st respondent. Therefore his discretion in this respect cannot be said to have been exercised in accordance with the law or that the discretion was exercised judicially and judiciously. Indeed this was a clear case of wrongful exercise of discretion to justify allowing the appeal. Accordingly the appeal is hereby allowed. The judgment of the lower court of 27/4/92 is hereby set aside. The case is remitted to the trial court for the hearing of the entire claims of the 1st respondent on the merit by another judge.

The appellants are entitled to costs assessed at N1,500.00 (One thousand, five hundred naira).


Other Citations: (1997)LCN/0273(CA)

Christian Nwokedi V. Union Bank of Nigeria Plc. (1997) LLJR-CA

Christian Nwokedi V. Union Bank of Nigeria Plc. (1997)

LawGlobal-Hub Lead Judgment Report

TOBI, J.C.A.

This is an application for departure from the rules of this Court and praying the Court for an order “deeming the Record of Appeal compiled and transmitted to the Court as properly compiled, transmitted, filed and served” and also for an order “abridging the time within which briefs can be filed by parties and deeming as properly filed and served the plaintiff/appellant’s brief…”

Before learned counsel for the applicant could move the application, learned counsel for the respondent raised a preliminary objection on the following grounds:

“1. No leave of court is given for the appeal, the Judge’s order being interlocutory.

  1. No leave was given by court to file the appeal outside the time (14 days) limited by the rules of court”.

Arguing the preliminary objection, learned counsel for the respondent Mr. Zanda Izundu, submitted that the order of the lower court granting a stay of execution, being of an interlocutory nature, the applicant must seek leave before an appeal can be lodged. He also submitted that the appeal must be filed within 14 days in pursuant to section 25(2)(a) of the Court of Appeal Act. He relied on Alaye of Effon v. Fasan (1958) SCNLR 171, (1958) 3 FSC 68; Omolowo v. African Newspapers of Nigeria Limited (1991) 8 NWLR (Pt. 209) 371 at 385 and Obi Okoye’s book entitled Essays on Civil Procedure, Volume 1, Page 101. Counsel urged the court to uphold the objection.

Learned counsel for the applicant, Mr. C.O. Anah submitted that the issue involved is in section 220(l)(a) of the Constitution of the Federal Republic of Nigeria, 1979, which provides for appeal as of right and not with leave of Court. On the definition of final decision, learned counsel referred to Aqua Limited v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 655 and submitted that the ruling in the lower court for a stay of execution pending the determination of the appeal in the Court of Appeal, is a final decision.

On the second ground of objection, learned Counsel submitted that where no leave is required, the issue of 14 days does not arise as stated in section 25(2)(a) of the Court of Appeal Act. He argued that this court should not take into consideration section 15 of the Court of Appeal Act because it has been decided by the court in Major General Lekwot (Rtd) and Others v. Judicial Tribunal on Civil and Communal Disturbances in Kaduna State and Another (1993) 2 NWLR (Pt. 276) 410 that the section is unconstitutional and therefore null and void. Izundu had no reply. He conceded that if his objection failed, he would not oppose the application.

The crux of the dispute is short but trickish or tricky. It is whether a ruling on an application for stay of execution is an interlocutory decision or a final decision. Let me pose the two pertinent questions: What is an interlocutory decision? What is a final decision? I will deal with the questions in turn.

The word ‘interlocutory’ generally means provisional, interim, temporary. It also means not final. An interlocutory decision is one that decides a point or matter which is not final. It is a decision which intervenes between the commencement or initiation of an action and the end of it. An interlocutory decision has no element of finality but is transient in nature.

On the other hand, the word ‘final’ generally means last, conclusive, terminated and completed. It also means decisive or definitive. A final decision is one which conclusively decides the rights of the parties in a litigation and which leaves nothing open to further dispute as it completely sets at rest the cause of action between the parties. A final decision is a final disposition of the cause of action at the trial court until it is reversed or set aside on appeal.

The case law as to whether a decision is interlocutory or final is in great proliferation. I can take some cases. I will examine the case law in three arms, thus: interlocutory decisions, final decisions and a combination of both. First, interlocutory decisions. In Omonuwa v. Oshodin and Another (1985) 2 NWLR (Pt. 10) 924, the Supreme Court fell back on the definition of interlocutory applications by Cotton, LJ. in Gilbert v. Endean (1878) 9 Ch.D. 259 at pages 268 and 269:

“Those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties”.

In the same case, the Supreme Court fell back on the definition of interlocutory order by Cotton, L.J. in Blakey v. Latham (1890) 43 Ch.D. at page 23:

“Any order, which in my opinion, does not deal with the final rights of the parties, but merely directs how the declarations of rights already given in the final judgments are to be worked out is interlocutory, just as an order made before judgment is interlocutory where it gives no final decision on the matters in dispute, but merely directs how the parties are to proceed in order to obtain that final decision”.

In Fahunmi and Another v. Oyewusi (1990) 6 NWLR (Pt. 159) 728, the Court of Appeal held that where in a suit an issue separately determined is not conclusive of the suit, the judgment upon that suit is an interlocutory judgment and the suit continues. In Chief Nwosu and Another v. Ofor (1991) 2 NWLR (Pt. 173) 275, the Court of Appeal held that an interlocutory order is a decision given in the course of proceedings but which does not determine the issue between the parties finally. The Court held that a ruling that a party has locus standi or standing to prosecute a claim is an interlocutory order as it does not finally decide the claim. In Ideh v. Godbless Motors (Nig.) Ltd. (1991) 4 NWLR (Pt. 188) 699, the Court of Appeal held that the decision of the trial Judge that he has jurisdiction to entertain the suit filed is interlocutory since the decision has not finally determined the rights of the parties.

In Imo Broadcasting Corporation v. Iwueke (1995) 1 NWLR (Pt. 372) 488, the Court of Appeal held that where only an issue is the subject matter of an order or appeal the determination of the 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.

Let me now take final decisions. In Chief Sodipo v. Lemminkainen or and another (1985) 2 NWLR (Pt. 8) 547, the Supreme Court defined a final judgment as a judgment obtained in an action by which a previous existing liability of the defendant to the plaintiff is ascertained and established or where the question whether there was a pre-existing right of the plaintiff against the defendant is finally determined in favour of either the plaintiff or the defendant. See also Ezenwa v. Kareem (1990) 3 NWLR (Pt. 138) 258.

In Akinsanya v. United Bank for Africa Limited (1986) 4 NWLR (Pt. 35) 273, the Supreme Court held that an order of court is final if the court orders something to be done according to the answer to the enquiries, without any further reference to itself.

In Okokhue v. Obadan and Others (1989) 5 NWLR (Pt. 120) 185, the Court of Appeal held as follows:

(a) If the court orders something to be done according to the answer to the enquiries, without any further reference to itself, the judgment is final. See also Akinsanya v. United Bank for Africa Limited, supra.

(b) No order, judgment or other proceeding can be final which does not affect the status of the parties for whichever side the decision is given; so that, if it is given for the plaintiff, it is conclusive against the defendant and if it is given for the defendant it is conclusive against the defendant.

(c) A decision between the parties can only be regarded as final when a determination of the court disposes of the rights of the parties and not merely an issue in the case. See also Ideh v. Godbless Motors (Nig.) Ltd supra; Afolabi v. Igunbor and Another (1992) 8 NWLR (Pt. 257) 115.

(d) A decision or judgment becomes final only when the merits of the case has been determined.

In Ayu v. Madugu (1991) 2 NWLR (Pt. 171) 92, the Court of Appeal held that a final order or decision ends the dispute between the parties over a specific subject matter or and permanently sets it at rest in the court which pronounced it. It terminates the litigation on merit and leaves nothing for the court to do but execute judgment unless it is set aside on appeal, with a stay of execution intervening.

In Ikeazor v. Ikeazor (1994) 5 NWLR (Pt. 436) 609, the Court of Appeal held that the test for resolving the question as to whether a decision is final or interlocutory is to look at the result, that is, whether the judgment or order as made finally disposes of the rights of the parties.

In Imo Broadcasting Corporation v. Iwuke, supra, the Court of Appeal held that a final judgment is one which puts an end to the action by declaring that the plaintiff has or has not entitled himself to the remedy he sued for so that nothing remains to be done but to execute the judgment.

I now take the third and final arm, which is a combination of the two arms. The Courts have ‘clearly distinguished the two arms in a combined analysis. In Botson v. Altrincham (1903) 1 KB 547, Lord Alverstone said at page 548:

“Does the order as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then in my opinion, an interlocutory order. A different test is stated in Salaman v. Warner namely, that an order is an interlocutory order unless it is made on an application of such a character that whatever order has been made thereon must finally have disposed of the matter in dispute. The latter test… ..regards the nature of the proceedings; the former(which is generally preferred) looks at the order made”.

The decision has been followed by the courts of this country. See for example, Afolabi and Another v. Igunbor and Another, supra; Akinsanya v. United Bank of Africa Limited, supra.

In Omonuwo v. Oshodin and Another, supra, the Supreme Court held thus:

(1) Two tests have been laid down for determining whether or not an order of court is final or interlocutory

(a) The first is to see the nature of the application made to the court in order to determine whether or not the order is final or interlocutory.

(b) The second is to consider the nature of the order made.

(2) In Nigeria, it is the “nature-of-order” test that has been constantly applied. If the order made finally disposes of the rights of the parties then that order is final. If the order made does not, it is interlocutory. See also Ebokam v. Ekwenibe and Sons Trading Company Limited (1993) 6 NWLR (Pt. 297) 108.

In Akinsanya v. UBA supra, the Supreme Court held that in determining whether or not decisions of first instance are final or interlocutory, the test to be applied is that laid down in Bozson v. Altrincham (1903) 1 KB. 547 namely: Does the judgment or order as made, finally dispose of the rights of the parties? If it does, then the order is final order. If it does not, it is interlocutory. See also Okokbue v. Obadan and Others, supra.

In Nwosu v. Ofor, supra, the Court of Appeal held that in deciding whether an order is final or interlocutory, the test to apply is one of which looks at the order made and not at the nature of the proceedings. In Ideh v. Godbless Motors (Nig.) Ltd. supra, the Court of Appeal also held that it is the nature of the order made and not the nature of the proceedings that determines whether a decision is final or interlocutory.

I have taken time to examine the case law in some detail because of the principles of law governing the vexed problem of distinction between a final decision and an interlocutory decision. While the principles adumbrated by the courts are useful, what is most important, is for the court to carefully and scrupulously examine the particular matter before it in arriving at a conclusion one way or the other. This is one very difficult area of law, so much so that Lord Denning came to the conclusion that “It is impossible to lay down any principle about what is final or what is interlocutory.” See Salter Rex and Company v. Ghosh (1971) 2 All ER 865 at page 866.

I now come to the crux of the matter. Is a ruling or order on an application for stay of execution, final or interlocutory? The Court of Appeal, (Kaduna Division) provided an answer in Omolowo v. African Newspapers of Nigeria Limited and Another (1991) 8 NWLR (Pt. 209) 371. In that case, both Okunola and Achike, J.C.A., held that a ruling on an application for stay of execution is a final decision. In his lead ruling, Okunola, JCA, said at page 380.

“Both counsel to the parties agreed in their submission that the ruling of this Court on stay of execution that is sought to be reviewed is a final decision. The starting point therefore is to find out what a final decision is. A final decision or order is one which as made finally disposes of the rights of the parties. I agree with both counsel that the order for stay in the instant case is a final order of this court since it had finally disposed of the rights of the parties in the application leading to the order of stay in the ruling under consideration.”

Achike, JCA, added the following in agreement at page 387:

“We shall approach the consideration of the issue from the stand-point that the order of execution made by this Court which is sought to be varied is a final decision. Generally, where a judgment or order finally disposes of the rights of the parties leaving no further reference to itself on the matter in which it has delivered judgment or order, the decision is final. In the case in hand, it is certainly clear that by the grant of the order of stay by this Court the rights of the parties in relation to the order became final. It was therefore a final order in respect of which the court was completely functus officio”.

Ogundere, JCA., thought differently. To the learned Justice, the order is not a final one. He said at page 385:

“In my humble opinion, an order of stay of execution is not a final order as it does not dispose of the issue in the case, namely damages for libel. If the appeal is lost the stay order abates. The order can be reviewed, but only at the instance of the party in whose favour the order was made, namely the defendant/appellant judgment debtor, herein in order to obtain more favourable conditions.”

With respect, I have no difficulty in going along with the decision of the Court, which is that of Okunola and Achike, J.J.C.A. In my humble view, the finality, of a decision is determined from the point of view of the court which gave the decision. And that court may be the final court as in this appeal or a Court of Appeal as in Omolowo. Whatever is the situation, the relevant question is whether the court which gave the decision can still competently give another decision in respect of the matter. If the court no more has jurisdiction to hear the matter and gives another decision on the ground of the conclusiveness of its earlier decision, that decision is final. The issue of finality is not determined from the point of view of the existence of an appellate decision or the possibility of an appeal. If the position was to be so, then only decisions of the Supreme Court could have qualified for the cognomen “final decision”. But that will be ridiculous. It is not even a mere ridicule, but not the law.

I have raised the issue of a concomitant appellate decision because that is one source of the confusion in the matter. The moment the possibility of an appellate decision is divorced from the matter and the element of non-existence of further reference to the court which gave the order, worked into it, the confusion will be greatly reduced. The courts have dealt with the point. In Akinsanya v. UBA., supra., the Supreme Court held that an order of court is final if the court orders something to be done according to the answer to the inquiries, without anyfurther reference to it. The operative words are italicized. See also Okokhe v. Obadan and Others supra. In Ayu v. Madugu (1991) 2 NWLR (Pt. 171) 92, Ndoma-Egba, JCA put the position beautifully at page 100:

“A final order or decision ends the dispute between the parties over a specified subject matter or/ and permanently sets it at rest in the court which pronounced it. It terminates the litigation on merit and leaves nothing for the court to do but execute judgment unless it is set aside on appeal, with a stay of execution intervening.”

Let me still examine further this fairly troublesome aspect of the law in the light of the decided cases indicated above. An application for a stay of execution, in my humble view, is a valid cause of action, which can therefore be determined to finality. I should also say that it is a distinct and separate cause of action, and not in anyway dependent on the judgment or ruling which gives rise to it. If it is a cause of action, why should decisions on it lack the capacity of finality? I do not know why it should be so.

The case law is clear on the point that the rights of the parties should be finally determined. I pose three questions: Does a ruling on a stay of execution not determine the rights of the parties? And is such determination not final? If so, what is left? In my view, a ruling on a stay of execution determines the rights of the parties, who are the applicant and the respondent. This is by either granting the application or refusing it. Such a determination is final because the trial Judge, in the instant case, has no more jurisdiction to deal with the application. That is the element of the expression, “without any further reference to it”, in Akinsanya and the group of cases. In Omolowo, Achike, J.S.C used the similar expression of “no further reference to itself’ on the matter in which it has delivered judgment or order. Since Omolowo decided on the issue involved in this application, it is directly relevant.

It is clear from the case law above that for a decision to be final, it must affect the status of the parties. I ask: does a ruling on an application for stay of execution not affect the status of the parties? Of course, it does. Whichever way the decision goes the status of the applicant and the respondent are affected. Does the ruling not dispose of the rights of the parties in the trial court? Of course it does. If it does not, what is left? Did the learned trail Judge deal with the merits of the application for stay of execution? Of course he did, and in his 6- page ruling. The learned trial Judge said at page 6 of the ruling which is page 127 of the Record:

“For the reasons I have given above, I am of the firm view that having regard to the nature of the award, the maintenance of status quo until the final determination of the appeal will meet the justice of the case. Finally, I observe that as no reasons were adduced why the whole of the judgment debt should be transferred to an independent bank – First Bank PLC, New Market Road, Onitsha, the application in that regard is refused. The application for a stay of execution of the judgment in this suit is granted. And. it is the order of this court”.

It is the case law that we prefer the nature of order test. Applying that test, can it be said that the above order is not final? If it is not, then, what is a final order? In the light of the above analysis of the legal position, the preliminary H objection fails and it is hereby dismissed. Mr. Izundu informed the court that if his preliminary objection fails, he will not oppose the motion dated 12th March, 1997. I therefore grant the motion as prayed. Departure from rules of this court is granted. The Record of Appeal compiled and served is deemed properly compiled and served. The appellant’s brief of argument already filed is deemed properly filed and served. I award N1,000.00 costs in favour of the respondent.


Other Citations: (1997)LCN/0272(CA)

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

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

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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.

9

(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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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.


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

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

1

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

2

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

6

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

9

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

10

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

12

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

14

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

15

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

16

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

17

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

18

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)

24

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

33

(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) LLJR-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

1

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:

2

”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.

4

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.

6

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

7

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

11

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

12

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

14

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

16

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.

20

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

24

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.


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

Hon. Stephen Bassey & Ors V. Sat Guru Maharaji & Anor (2016) LLJR-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) LLJR-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/8985(CA)

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

1

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

2

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

3

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

4

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

5

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

6

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

7

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


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

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

1

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,

2

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

3

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

4

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

5

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

6

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

7

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

8

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.


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