C.O. Ogbughalu & Sons Nigeria Limited V. Unilever Nigeria Plc (2016) LLJR-CA

C.O. Ogbughalu & Sons Nigeria Limited V. Unilever Nigeria Plc (2016)

LawGlobal-Hub Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.C.A.

On 1-9-2011, the appellant commenced Suit No. HAB/57/2011 by filing a writ of summons accompanied by statement of claim, witness depositions, list of witnesses, copies of documents to be replied on in the Suit and list of documents at Ebonyi State High Court at Abakaliki against the respondent claiming for –
(i) The said various sums due and payable to the plaintiff, the details of which have been specifically pleaded herein in paragraph 5(i)-(xxv) inclusive, in the total sum of N79,609,679.99 (Seventy Nine Million, Six Hundred and Nine Thousand, Six Hundred and Seventy-Nine Naira, Ninety-nine kobo), representing credit now outstanding for payment on the footing of the key Distribution Agreement between the parties.
(ii) N141,988,771.70 (One Hundred and Forty-one million, Nine hundred and Eighty-Eight thousand, Seven hundred and Seventy-one Naira, Seventy kobo) being interest on the principal sum due calculated at the prevailing Central Bank of Nigeria interest Rates for the period 1st Jan. 2003 – 30th June 2011.”
(iii) An order of the Court directing the time within which the

sum found due and payable to the plaintiff should be fully paid/liquidated.
(iv) An order for the payment of Interest thereon at the interest rate of 10% per annum, until the final liquidation thereof as found due and payable to the plaintiff by the defendant upon judgment.”

By a motion on notice filed on 20-12-2011, the appellant applied for leave of the trial Court to lead evidence to prove its case on the ground that the respondent had not filed its statement of defence after being served with the writ of summons, statement of claim and other documents. The respondent on 5-1-2012 filed a counter affidavit in opposition to the said application.

By a motion on notice filed on 20-11-2012, the respondent applied for –
1. An Order of this Honourable Court extending the time within which the defendant/applicant will file and serve its memorandum of appearance in this suit.
2. An Order deeming the memorandum of appearance dated 14th November 2012 as having being properly filed and served necessary fee having been paid.
3. An Order of this Honourable Court staying this suit pending the resolution of the dispute between the

plaintiff and the defendant arising out of a distributorship contract between the plaintiff and the defendant dated 1st August 2008 by arbitration.
4. And for any further Order(s) as the Honourable Court may deem fit and expedient to grant in the circumstance.”

The application is supported by an affidavit of 16 paragraphs. The appellant on 26-11-2012 filed a counter affidavit of 18 paragraphs in opposition to the said application. The respondent on 23-1-2012 filed a further affidavit of 7 paragraphs in support of its application for stay of proceedings.

Both sides filed, exchanged and adopted their respective written addresses.
On 30-4-2013, the trial Court rendered its ruling, granting the respondent’s application and Ordered that –
1. Time is hereby extended up to today for the defendant/applicant to file and serve its memorandum of appearance in this matter.
2. The memorandum of appearance dated 14th November, 2012 is deemed to have been properly filed and served with the payment of appropriate filing fees.
3. Suit No. HAB/57/2011 shall be stayed pending the resolution of the dispute between the

plaintiff/respondent and the defendant/applicant arising out of the distributorship contract dated 01/08/2008 by arbitration.
4. The dispute between the parties in this suit is accordingly referred to arbitration.
5. The plaintiff/respondent shall choose from any of the three (3) arbitrators already nominated by the applicant.”

Dissatisfied with this ruling, the appellants on 13-5-2013 commenced this appeal No. CA/E/378/20/3 by filing a notice of appeal containing four grounds for this appeal.

Both sides have filed, exchanged and adopted their respective briefs as follows – appellants brief and respondent brief.
The appellant’s brief raised the following issues for determination –
1. Whether the order so made for stay of proceedings pending Arbitration can be sustained on the interpretation of Section 5 of the Arbitration & Conciliation Act Cap. A 18 of the Laws of the Federation of Nigeria Vol. 1 of 2004?
2. Whether the penultimate order of the Court constraining the (plaintiff) Appellant to choose from any of the three arbitrators already nominated by the applicant (Respondent), can be justified in

law?

The respondent’s brief also raised two issues for determination as follows –
1. “Whether the Court can exercise its discretion in law to order for a stay of proceeding in a suit subject matter of an arbitration pursuant to Section 5 of the Arbitration and Reconciliation Act?”
2. “Whether the Order of the Court for the appellant to choose from any of the three arbitrators nominated by the respondent can be justified in law as been consequential to the relief sought in the application?

Learned SAN for the appellants argued that for an application for stay of proceedings pending arbitration to succeed there must first be compliance with the conditionalities laid down under S. 5(2) of the Arbitration and Conciliation Act Cap. 18 vol.1 Laws of the Federation of Nigeria 2004, that whereas in this case there is unchallenged evidence that the appellant had repeatedly been requesting for the arbitration provided for in clause 14 of the Distributorship Agreement to hold for well over one year, the respondent consistently rebutted the said requests, that it is the dilatory conducts of the respondent that had prevented the arbitration and

placed the appellant under serious financial predicaments, that nothing warranted the grant of the stay of proceedings pending arbitration, that the respondent offered no explanation whatsoever for its delay in giving effect to the arbitration, that by the requirements of S. 5 of the Arbitration and Conciliation Act, the conducts of the parties in the process of effectuating the arbitration clause constitutes a crucial consideration for any decision on the application for stay of proceedings pending arbitration, that a consideration of whether there was compliance with the requirements in of the said S. 5 is mandatory, that the trial Court did not engage in this consideration and thereby abandoned its bounden obligation to hear and determine any question as to the civil right of the parties under S. 6(6) of the 1999 Constitution and that the conducts of the respondent in avoiding the implementation of the arbitration clause disqualified or disentitled him from the grant of an Order of stay of proceedings under S. 5(2) of the Arbitration and Conciliation Act.

Another submission of Learned SAN for the appellant is that clause 14 of the Distributorship

agreement did not exclude resort to litigation before the holding of the arbitration and that the existence of an arbitration clause without a Scott v. Avery Clause does not make the holding of the arbitration a condition precedent to litigating on the dispute arising from the agreement.

Learned Counsel for the respondent argued in reply that S. 5 of the Arbitration and Conciliation Act is the law that determines the steps to be taken by a party who seeks the discretion of the Court to stay proceedings pending arbitration, that it is not the contention of the appellant that the respondent did not satisfy the requirements of the said S. 5 of the said Ac, that the respondent having satisfied the requirement was entitled to bring the application for stay of the proceedings in suit No HAB/57/2011, that Subsection 2 of the said Act deals with the discretion which the Court would exercise in the event when dealing with such applications and the factors that should guide its exercise of that discretion and that that S. 52(b) requires that the applicant for such a stay of proceedings will at the time the suit was commenced still remain ready and willing to do

all things necessary for the proper conduct of the arbitration, that the appellant failed or neglected to grant the respondents’ request vide its notice of request for arbitration dated 21st November 2011 for the appellant to appoint an arbitrator or choose from a list of three arbitrators suggested by the respondent after the appellant’s writ of summons had been served on respondent, that the acts of the respondent serving a notice of request for arbitration on the appellant and the application for stay of proceedings immediately after the commencement of the suit show that the respondent was willing and ready to do all things necessary to the proper conduct of the arbitration at the time the action was commenced and not before it was commenced that having satisfied all the conditions stipulated in S. 5 of the Act, the trial Court was right in exercising its discretion to grant the order of stay to give effect to the agreement of the parties to submit to arbitration, the appellant having not shown any reason why it should not be so. For this submission Learned Counsel relied on Obembe v. Wemabod Estates Ltd. (1997) 5 SC 115 cited earlier by Learned SAN for

the appellant.

Learned Counsel submitted that it was the appellant who showed unwillingness and unreadiness to go to arbitration, that in a meeting of 27th and 29th August 2010, the appellant indicated he would not be able to meet the condition that it provides a particular document by 28-8-2010 to enhance the speedy resolution of the dispute, that the arbitration clause in the contract is not final and binding as it states that any party not satisfied with the decision of the arbitration can refer the matter to Court, that the trial Court did not hold that the conclusion of the arbitration is a condition precedent to litigation in Court, the trial Court stated that the first arm of the arbitration process in clause 14 of the agreement had not been exhausted before the appellant resorted to litigation to show that there is no sufficient reason why the proceedings should not be stayed pending arbitration to enable arbitration take place in accordance with the agreement of the parties, that the trial Court exercised its discretion in accordance with S. 5 of the Arbitration and Conciliation Act.

Let me now consider the merit of the above arguments

of both sides.

Clause 14 of the distributorship agreement made on the 1st of August, 2008 states thusly- “The parties will attempt in good faith to resolve any controversy or claim arising out of or in relation to this Agreement by negotiations between senior executives of the parties. If the parties are unable to settle their differences with regard to any dispute arising out of or in connection with this Agreement the matter shall be referred to Arbitration and such Arbitration shall be conducted in Lagos under and in accordance with the Arbitration and Conciliation Act 2004 or any subsequent amendment or re-enactment thereto. If either party is not satisfied with the decision of the Arbitration, the matter shall be referred to an appropriate Court for a judication PROVIDED THAT the company shall at all times maintain its ordinary right to recover sums owing to it by the Distributor in a Court of Law without the first recourse to Arbitration.”

It is clear from the express words of this clause, that the parties to the agreement intended that reference of a dispute between them arising out of the agreement to arbitration, should not be the

first course of action in resolving the dispute and that the reference to arbitration should occur only after attempt in good faith to amicably resolve the dispute by negotiations between the senior executives of the parties has been made and the parties are unable to settle the dispute or claim arising from the agreement. It is also clear from the terms of the said clause 14 that the parties intended that if arbitration is held to resolve any such dispute and any or all of the parties are not satisfied with the arbitral award or decision, such party can resort to litigation in Court for redress, The parties intended that the resolution of a dispute between them under the agreement should first be by amicable resolution by their respective senior executives, if that fails, then by arbitration and if any or all of the parties are not satisfied with the arbitral outcome, then it may litigate in Court. The negotiations between the senior executives of the parties did not hold to reconcile the state of the account between the parties. The matter was not referred to arbitration. The appellant believing that the respondent was unwilling to meet with its senior

executives to negotiate or submit to arbitration, decided to file Suit No. HAB/57/2011 at the Ebonyi State High Court to recover the debts due to it from the respondent. The respondent applied to the trial Court for an order staying proceedings in the said suit to enable the dispute resolution process agreed upon by the parties in clause 14 of the Distributorship agreement be followed and that it was ready and willing to do all things necessary for the proper conduct of the arbitration.

Both sides agree that the trial Court had the power to order stay of proceedings pending arbitration by virtue of S. 5 of the Arbitration and Conciliation Act Cap. A18 vol. 1 Laws of the Federation of Nigeria 2004, that the order is not granted as a matter of course or merely because it has been applied for and that the grant of the order must be in strict compliance with the said S. 5 of the Act which provides that-
(1) If any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance and before delivering

any pleadings or taking any other steps in the proceedings, apply to the Court to stay the proceedings.
(2) A Court to which an application is made under Subsection (1) of his section may, if it is satisfied –
(a) that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the arbitration agreement; and
(b) that the applicant was at the time when the action was commenced and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, make an order staying the proceedings.”

S. 5(2) clearly lays down the two conditions that must exist before a Court can make an order staying the proceedings in a suit pending arbitration. Therefore the decision granting such an order must reflect a consideration and evaluation of the facts establishing the existence of these two conditions. The Court must find as a fact that the two conditions exist. The grant of the order of stay of proceedings pending arbitration must be as a result of the existence of the said two conditions.

It is glaring from the ruling of the trial Court that in granting the order of stay

of proceedings, it did not comply with S. 5(2) of the said Act. The trial Court did not consider if there is no sufficient reason why the matter should not be referred to arbitration in accordance with the arbitration agreement, and did not consider if the applicant was at the time when the action was commenced still ready and willing to do all things necessary to the proper conduct of the arbitration. The ruling does not reflect a consideration of any facts establishing the existence of the above statutory conditions. It did not find as a fact that the conditions existed and therefore did not satisfy itself that they existed before it made the order staying proceedings in Suit No. HAB/57/2011 pending arbitration.

The trial Court approached the consideration of the grant or refusal to grant the order staying proceedings, by stating that “The question now is, have the parties exhausted the terms of the arbitration clause before the respondent commenced the substantive suit?” This was the question it resolved and decided to grant the order of stay. I agree with the Learned SAN for the appellant that this approach of the trial Court was contrary to S.

5(2) of the Arbitration and Conciliation Act. There is nothing in S. 5(2) of the Act requiring the Court to consider if the parties have exhausted the terms of the dispute resolution clause in their agreement as a condition for the grant or refusal to grant the order of stay of proceedings. After framing the above question, the trial Court proceeded to reproduce the full text of clause 14 of the Distributorship agreement and then determined thusly – “From the provisions of Paragraph 14 of the agreement as reproduced which speaks for itself, in the case of dispute arising out of the distributorship agreement between the parties, they have the following recourse to the resolution of same:

(1) Negotiation by senior executives of the parties.
(2) Reference to arbitration to be conducted at Lagos under the Arbitration and Conciliation Act, 2004 or any amendment or re-enactment thereto where the senior executive of the parties fail.

From the evidence before the Court the parties have only exhausted the first arm of the arbitration clause without success. The parties are bound by the terms of their agreement and the Court is not in a position to

re-write same.

To this effect, the parties herein who committed to arbitration in their contractual agreement (exhibit A) shall respect such agreement. See Nissan (Nig.) Ltd v. Yoganathan (2010) 4 NWLR (Pt. 1183) 135 at 157.

The 2nd issue is resolved in favour of the applicant against the respondent. The application succeeds and is granted as follows:

1. Time is hereby extended up to today for the defendant/applicant to file and serve its memorandum of appearance in this matter.
2. The memorandum of appearance dated 14th November, 2012 is deemed to have been properly filed and served with the payment of appropriate filing fees.
3. Suit No. HAB/57/2011 shall be stayed pending the resolution of the dispute between the plaintiff/Applicant arising out of the distributorship contract dated 01/08/2008 by arbitration.
4. The dispute between the parties in this suit is accordingly referred to arbitration.
5. The Plaintiff/Respondent shall choose from any of the three (3) arbitrators already nominated by the applicant.”

The clear implication of the part of the decision of the trial Court reproduced above is that

unless and until the arbitration provided for in clause 14 is held and concluded, a party to the agreement cannot sue in Court in respect of any dispute or claim arising from the agreement. This notion is clearly contrary to S. 4 and S. 5 of the Arbitration and Conciliation Act which clearly recognizes that an action in respect of the subject matter of arbitration agreement can be brought to Court before or during the arbitral proceedings S. 4 provides that –
(1) “A Court before which an action, which is the subject of an arbitration agreement is brought shall’ if any party so requests not later than when submitting his first statement on the substance of the dispute, order a stay of proceedings and refer the parties to arbitration.
(2) Where an action referred to in Subsection (1) of this section has been brought before a Court, arbitral proceedings be commenced or continued, and an award may be made by the arbitral tribunal while the matter is pending before the Court.”
So by virtue of Ss. 4 and 5 of the Arbitration and Conciliation Act, a party to an agreement containing an arbitration clause, can file a suit in court in respect of a

dispute or claim arising out of the agreement, before or during the holding of the arbitration. Ss. 4 and 5 of the Act did not limit their application to any particular type of arbitration clause. The Supreme Court in Obembe v. Wemabod Estates Ltd (supra) held that- “Any agreement to submit a dispute to arbitration such as the one referred to above, does not OUST the jurisdiction of the Court. Therefore either party to such an agreement may before a submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission. (See HRRIS v. REYNOLDS (1845) 7 (QB 71). At Common Law the Court has no jurisdiction to stay proceedings where, however there is provision in the agreement as in exhibit 3, for submission to arbitration, the Court has jurisdiction to stay proceedings by virtue of its POWERS UNDER SECTION 5 ARBITRATION ACT Cap. 13 (sic A18) Laws of the Federation of Nigeria 2004 per Fatayi-Williams, CJN (of blessed memory) at 18-19 paragraph E – A”.
See also City Engineering Nig Ltd v. FHA (1997-1998) All NLR vol. 4 page 1 and the English decisions of Hayman v. Darwins Ltd.

(1942) A.C. 356 at 376 and Henry v. Geopresco (1976) QB 726, all cited by Learned SAN for the appellant.
Since the trial Court did not comply with the provisions of S. 5(2) of the Arbitration and Conciliation Act 2004 in granting the Order of stay of proceedings pending arbitration, the order staying proceedings in suit No. HAB/57/2011 pending arbitration is a nullity and is hereby set aside. As the Supreme Court held in Kano State Urban Development Board v. Fanz Construction Co. Ltd (1990) 4 NWLR (Pt. 142) 1 at 50 “The exercise of the power to STAY PROCEEDINGS in the Court pending the determination of arbitration proceedings CAN ONLY BE and MUST be exercised in accordance with the provisions of Section 5 of the Arbitration Law. Failure to exercise the power in accordance with the provisions of the law renders the decision or order a NULLITY”. (Capitals ours).

The finding of the trial Court that “From the evidence before the Court, the parties have only exhausted the first arm of the arbitration clause without success” is not correct. The first arm of the arbitration clause is the negotiation by the senior executives of the parties. It is

glaring from the correspondences exchanged between the parties, from the respondent’s letter terminating the distributorship agreement that the said negotiation did not hold. Under the Distributorship agreement dated 1-8-2008 and made between the respondent herein and the appellant herein, the respondent engaged the appellant as its Key Distributor for the sale and distribution of the respondents products, goods wares and merchandise throughout South East Zone. By a letter dated 30-9-2010 and addressed to the appellant, the respondent terminated the said distributorship agreement. The said termination letter stated in paragraph therein that respondent’s the Field Sales Manager for the location will be in location the appellant’s business outlet to carry out a Joint Final Reconciliation of its account with the appellant. The appellant’s auditors had by a letter dated 29-9-2010 written to the respondent requesting for reconciliation of both parties’ account under the distributorship agreement. The respondent in reply to this letter, wrote to the appellant’s auditors a letter dated 12-10-2010 stating thusly –
RE: RECONCILIATION OF C. O. OGBUGHALU & SONS

(NIGERIA) LIMITED ACCOUNT
reference your letter dated 29th September, 2010. We will be pleased if you can come to our head office in Lagos on the 19th or 21st with evidence of claims raised in your letter.

This is necessary so that your team and ours can reconcile the account of this our esteemed customer and come out with an agreed balance in the statement of account which will be acceptable to both parties.
Thanks.”

The appellant’s auditors replied to this letter by a letter dated 26-10-2010 wherein it is stated thusly –
“RE: RECONCILIATION OF C.O. OGBUGHALU & SONS LIMITED ACCOUNT WITH YOUR COMPANY
Your letter of 12th October, 2010 on the above subject matter refers.

In reference thereto, we are sorry we could not meet up with the date chosen by your company for the reconciliation due to the fact that the letter in question got to us on the 20th of October, 2010 just a day to the 21st of October being the second optional date given us.

Be that as it may, we are rather asking for a new date preferably within the second the week of November, 2010.

We regret any inconvenience our failure to honour the

appointment might have caused your Establishment.”

On 14-4-2011 the appellant through its lawyers wrote to the respondent a letter dated that day, demanding
1. “That you are hereby required immediately and not later than 14 (Fourteen) days from the receipt of this letter expiring on Friday 13th May 2011, pursuant to paragraph 14 of the said distribution Agreement, to nominate/appoint in writing any Senior Executive Member(s) of Unilever Nigeria Plc, the names/details and other relevant particulars of which will be communicated to this chambers to meet with the Key Distributor nominees for the sole purpose of resolving/reconciling all outstanding monetary/other existing claims lodged over the aforesaid period (2002-2010)”
2. And please further take Notice that in the event of your failure of due compliance with (i) above, we shall without any further reference to your establishment initiate proceedings in Court for the recovery of the said outstanding claims, along with all other concurring incidental damages arising from the unlawful/unilateral termination of the Distributorship Agreement.”

The respondent in reply to the above letter,

wrote a letter dated 3-6-2011 to the appellant’s lawyers in which it is stated thusly – “We refer to your letter dated 14th April, 2011 on the above matter. Please note that investigation is ongoing in respect of your client’s claims as contained in your letter. On the account reconciliation issue, your Client’s auditor came to our office in Lagos in December 2010 and was attended to by our CD finance Manager. He was given a copy of your Client’s Statement of Account to go through and revert with areas of differences in other to facilitate smooth account reconciliation. He however insisted that he wanted to come and sit with us for reconciliation. We explained to him that reconciliation is only possible when he has identified areas of contention and highlighted same to us. We will then get all necessary supporting documents ready for the reconciliation exercise. Accordingly, we hereby request for the following documents in respect of paragraph 5.0 of your letter.

1. Invoices numbers and his bank account copy showing the double debit
2. Copy of letter
3. Invoice numbers for the 26 invoices
4. Date of payment and invoices number
5.

Details of payment and bank statement
6. Evidence of returning stocks to qualify for market hygiene

We look forward to receiving the above from your Client’s soon to enable us get all supporting documents ready to respond to his claims and be in a position to communicate a suitable date for Reconciliation with his Auditors.”

The appellant’s lawyers replied to this letter by a letter dated 15-6-2011 which states thusly – “We must observe that your request as above has not quite fully dealt with the issues raised in our letter of 14th April, 2011, the details of which we hope will be addressed in due course at the Reconciliation Forum indicated in the said reply.

Furthermore paragraph 3 of your letter alleges that our client’s Auditor was on his visit to your Lagos office in December 2011 given a copy of our client’s Statement of Account. As per our instructions our clients demur that claim as untrue. On the contrary, his report was that he was subjected to some measure of indignities and harsh treatment before getting into your Lagos office, and merely advised that our client should submit documents to back up its claims, which

would have since been done but for your suggestion in the Termination letter of the proposed visit of your Field Sales Manager to the business outlet for a joint final reconciliation of the Accounts.

Given the ominous predicament presently foisted on our clients business since October 2010, we sincerely hope would hasten action on these matters for the necessary reconciliations in not more than a fortnight – 2 weeks from the receipt of this letter, as we eagerly look forward to your co-operation.”

It is clear from the above reproduced correspondences that the negotiation was prevented from holding by the unwillingness of the respondent’s officials to meet with the officials of the appellant to resolve the dispute. The respondent had indicated in its letter of 30-9-2010 terminating the distributorship agreement that its Field Sales Manager for the location will be in the appellant’s business outlet to carry out a joint final reconciliation of appellants account with the respondent. The said sales manager failed to attend the joint final reconciliation of the said account at appellant’s business outlet. The respondent had by its 12-10-2010 letter

requested the appellant’s auditor to come to the respondent’s head office in Lagos on 19th and 21st October 2010. The said auditor went to their head office in December 2011 to meet with the officials of the respondent to carry out the reconciliation. The respondent stated in their letter of 3-6-2011 that they refused to meet with him to carry out the reconciliation and that they could only do so when he has identified areas of contention in the statement of account given to him and highlighted same to them and the respondent will then get all necessary supporting documents ready for the reconciliation exercise. The appellant’s Lawyers by a letter dated 14-4-2011 to the respondent, demanded that the respondent within 14 days from 13-5-2011 nominate any of its senior executive members to meet with the nominees of the appellant to resolve/reconcile the claims for the period of 2002 – 2010 and that in the event that the respondent failed to comply with this demand, the appellant shall initiate proceedings in Court for the recovery of the said outstanding claims. The respondent did not comply with the demand and rather wrote demanding that the appellant furnish it

with invoice numbers, a copy of bank account statement showing debits details of payments and evidence of returned stocks to enable it get all supporting documents, ready to respond to the appellant’s claims and be in a position to communicate a suitable date for reconciliation with appellant’s auditors. The senior executive officials of the parties did not meet to negotiate the claim by the appellant or settle any dispute arising under the agreement between them. The appellant on 1-9-2011 commenced suit No. HAB/17/2011 against the respondent.

The respondent who obviously avoided meeting with the officials of the appellant to amicably resolve the dispute cannot claim that it was ready and willing to do all things necessary to the proper conduct of the arbitration. It is clear from clause 14 that without the meeting of senior executives of the parties to negotiate the appellant’s claim and resolve the differences between the parties, they cannot proceed to hold the arbitration. Clause 14 provides that “If the parties are unable to settle their dispute, it shall be referred to arbitration.” The respondent by preventing the negotiation by the senior

executives of the parties clearly prevented the arbitration from holding. It was not ready and willing to do all that was necessary to enable the arbitration hold.

The order of the trial Court referring the dispute to arbitration was unnecessary and invalid. The negotiation of the senior executives of the parties which clause 14 of the agreement require to take place before the dispute is referred to arbitration did not hold. Secondly, by virtue of S. 4(2) of the Arbitration and Conciliation Act, where an action involving the subject of an arbitration agreement is brought to Court, arbitral proceedings may nevertheless be commenced or continued and an award may be made by the arbitral tribunal while the matter is pending before the Court. So the pendence of the suit by the appellant did not prevent the arbitration from being held.

In the light of the foregoing I resolve issue No. 1 in the appellant’s brief in favour of the appellant.

Let me now consider and determine issue No. 2 which asks
“Whether the penultimate order of the Court constraining the (plaintiff) Appellant to choose from any of the three arbitrators already

nominated by the applicant (Respondent), can be justified in law?”

I have considered the arguments of both sides on this issue. The part of the ruling of the trial Court complained against under this issue is the order that the appellant shall choose from any of the three (3) arbitrators already nominated by the respondent.

It is glaring that this is not one of the reliefs asked for by the respondent in its application for stay of proceedings pending arbitration. The reliefs sought for in that application are reproduced at page 3 of this judgment. Both sides agree that it is not one of the reliefs the respondent prayed for in its application. The trial Court suo motu, without hearing both parties on whether such order should be made or not, proceeded to grant it. The trial Court was wrong to have granted this Order which was not asked for by the respondent. It is settled law that a Court cannot grant a party a relief not asked for by the party. The grant of such an order is a nullity.
I do not agree with the argument of Learned Counsel for the respondent that it is a consequential relief. Learned Counsel for the respondent has argued in

reply that although it was not asked for, the trial Court was right in granting it because it is a consequential order in that it gives effect to the order referring the matter to arbitration. This position of Learned Counsel for the respondent is influenced by his view that “the order sought was for the referral of the suit to arbitration and that the consequence of the referral of the suit to arbitration is the appointment of arbitrators, the appointment only gave effect to the order of the Court.” This view that the order sought for was for the referral of the suit to arbitration is not correct. Apart from prayers 1 and 2 for extension of time to enter appearance and to deem the entry of appearance already separately filed as properly filed and served, the only other order prayed for is one for stay of the proceedings in suit No. HAB/57/2011 pending the resolution of the dispute arising of the distributorship agreement between the parties. Since the applicant did not pray for an order referring the dispute to arbitration, the basis for the argument that the order of stay of proceedings is a consequential one collapses.
The trial Court suo motu

ordered that the matter be referred to arbitration, when the order was not asked for and without hearing both sides on the need for such an order. The making of such order without hearing both parties on the need for it violated the appellants’ right to fair hearing. Also the law is settled that a Court lacks the power to make an order or grant a relief not asked for by the parties. For these additional reasons the said order is a nullity.

I agree with the submission of Learned SAN for the appellant that the order that the appellant choose from any of the three arbitrators already nominated by the applicant made suo moto without hearing both parties on the need for them, violates the appellant’s right to for hearing. It is settled law that a Court cannot raise and determine an issue suo motu without hearing both parties or giving them an opportunity to be heard. It is a violation of the right of fair hearing of the parties to a case for a Court to raise and determine an issue suo moto without hearing the parties on that issue.
The trial Court’s order that the appellant choose an arbitrator from the three proposed by the respondent is contrary

to S. 7(2) of the Arbitration and Conciliation Act.
The parties in their agreement did not stipulate in their agreement the number of arbitrators to be appointed for an arbitration and how they are to be appointed. S. 6 of the Arbitration and Conciliation Act provides that “the parties to an arbitration agreement may determine the NUMBER OF ARBITRATORS to be appointed under the agreement, but where no such determination is made, the number of arbitrators shall be deemed to be three”‘

S. 7(1) of the same Act provides that “Subject to Subsections (3) and (4) of this section, the parties may specify in the arbitration agreement in appointing an arbitrator.” S. 7 (2) (a) provides that “where no procedure is specified under Subsection (1) of this Section – (a) in the case of an arbitration with three arbitrators, each party shall appoint one arbitrator and the two thus appointed shall appoint the third, so however’ that –

(i) if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so by the other party; or

(ii) if the two arbitrators fails to agree on the third arbitrator within thirty days of their

appointments, the appointment shall be made by the Court on the application of any party to the arbitration agreement.

The order of the trial Court deprived the appellant the right given to it by S. 7(2) to independently appoint one arbitrator. The procedure of one party nominating the three arbitrators and the other party being forced to choose one of the three arbitrators nominated by his adversary completely negates the intendment of S. 7 (2)(a) of Act. Such a procedure also runs contrary to the intendment of the Act which is clearly implicit in the requirement that each party appoint one arbitrator and the two so appointed by them appoint a third or if they fail the Court can appoint the third one upon a party’s application. It is the intendment of the Act by the provisions of S. 7 (2)(a) therein that the Arbitral Tribunal shall be constituted in such a manner as to guarantee that both parties have equal arms during the proceedings. Where the three arbitrators are nominated by one party, it creates a basis for reasonable fear by the party that did not nominate them, that the Tribunal would likely be biased against it. It ab initio erodes that

party’s confidence in the neutrality of the arbitral Tribunal.
The trial Court did not give any reason for making that order. There is nothing in the ruling to show the facts that the trial Court acted upon. The order is clearly perverse.

In the light of the foregoing, I resolve issue No. 2 in favour of the appellant.

On the whole this appeal succeeds as it has merit. It is accordingly allowed. This Court hereby sets aside the following Orders of the Ebonyi State High Court in suit No. HAB/57/2011 made on 29-4-2013 that –
i. Suit No. HAB/7/2011 shall be stayed pending the resolution of the dispute between the plaintiff/respondent and the defendant/applicant arising out of the distributorship contract dated 01/08/2008 by arbitration.
ii. The dispute between the parties in this suit is accordingly referred to arbitration.
iii. The plaintiff/respondent shall choose from any of the three (3) arbitrators already nominated by the applicant.”

The respondent shall pay costs of N100,000.00 to the appellant.

Other Citations: (2016)LCN/8961(CA)

Alhaji Sadisu Ibrahim & Ors V. Unity Bank Plc (2016) LLJR-CA

Alhaji Sadisu Ibrahim & Ors V. Unity Bank Plc (2016)

LawGlobal-Hub Lead Judgment Report

OBANDE FESTUS OGBUINYA, J.C.A.

By a motion on notice dated 27th April, 2015 and filed on 26th June, 2015, the applicants prayed this Court:
1. AN ORDER enlarging time within which the appellant/applicant (sic) may file its (sic) notice of appeal against the judgment of the High Court of Justice of Nasarawa State, New Karu per Hon. Justice R. G. Soji in suit No: NSD/MG/162/14 delivered on 21st day of November, 2014.
4. And for any other/further order(s) that the honourable Court may deem fit to make in the interest of justice.

The application was predicated on the following grounds:
i. That the appellants/applicants instructed the law firm of Messrs I. J. Mbatsavdue & Co. Bima Chambers whose address is Messrs I. J. Mbatsavdue & Co. Bima Chambers, Suite 309, 3rd floor, NCWS Building, Area 11, Garki, Abuja on the 24th day April, 2015 to conduct an appeal against the judgment of Hon. Justice R. G. Soji delivered on the 21st day of November, 2014.
ii. That at the trial Court, the counsel to the plaintiff/respondent informed the appellants/applicants that there was no need

for them to engage a counsel and when judgment was delivered, he kept assuring them that there will be no problem.
iii. That it was after an inquiry from the registrar of the trial Court as to the consequence of the judgment that the appellants/applicants were advised to appeal against it.
iv. That by the time the appellants/applicants became aware of the necessity to appeal against the judgment. The time limited for appeal had elapsed.
v. That by the rules of this Court, an appeal against the judgment ought to be filed within ninety (90) days from the date of delivery of the judgment.
iv. That from the date of delivery of judgment i.e. 21/11/2014 to the date our firm was briefed to prosecute the appeal i.e. 24/04/2015 is well over ninety days.
vii. That an application for enlargement of time within which to appeal is a sine qua non for the validity of the appeal.
viii. That clean copies of the Notice and Grounds of Appeal thereof have already been filed and served filing fees having been paid.
ix. That the judgment is monetary in nature and therefore executor.
x. That the judgment was granted on the undefended list

procedure.
xi. That the claims/reliefs of the respondent were outside liquidated money demand.
xii. That the trial Court lacks the requisite jurisdiction to grant the judgment under the undefended list procedure as the claims/reliefs of the respondent were uncertain.

The application was supported by a 24-paragraph affidavit, sworn to by T. C. Adaga, Esq., with five documents, Exhibits A-E, annexed to it. In opposing reaction to it, the respondent filed a 8-paragraph counter-affidavit on 25th January, 2016, with one document, Exhibit UB1, attached to it. Before the hearing of the motion, the applicant, qua counsel applied to withdraw prayers 2 and 3 in the motion paper and same were struck out. In view of the stiff position to the application, the Court ordered parties to file written addresses. The facts of the case which gave birth to the application are submissive to brevity and easy appreciation. The respondent gave a loan facility to the applicants in the sum of N1.6M. The applicants defaulted in payment. As a result, the respondent beseeched the High Court of Nasarawa State sitting in New Karu (hereinafter called “the lower Court”),

under the undefended list procedure and claimed the sum of N8,439,217.03M from the applicants. At the hearing, the applicants did not file any notice of intention to defend but rather admitted the claim. The lower Court on 21st November, 2014, granted the respondent’s claims. It is that judgment that the applicants want to appeal against to this Court.

The application was heard on 6th May, 2016. During its hearing, learned counsel for the applicants, Barnabas Tsafa, Esq., adopted the applicant’s written address filed on 19th November, 2015, as representing his arguments for the application. He urged the Court to grant it. Similarly, learned counsel for the respondents, Akpama Ekwe, Esq., adopted the respondent’s written address filed on 25th January, 2016, as forming his reactions against the application. He urged the Court to dismiss it.

Arguments of the parties
In arguing the application, learned counsel for the applicants submitted that the judgment of the lower Court was not a consent judgment to warrant leave of Court before appealing against it. He referred to Order 37 Rules (6) and (7) of the Nasarawa State High Court (Civil

Procedure) Rules, 2010 (the Rules, for short); A. F. Afolayan and P. C. Okorie, Modern Civil Procedure (Lagos: Dee Sage Nigeria Ltd., 2007) 268; Kamba v. Bawa (2005) 4 NWLR (Pt. 914) Ras Pal Gazi Const. Co. Ltd. v. FCDA (2001) FWLR (Pt. 58) 1018; Woluchem v. Wokoma (1974) 3 C 153 in support of the submission. He posited that admission made by a defendant could not be taken to be a consent judgment to grant judgment by a Court. He relied on Steel Bell Nig. Ltd v. N.D.I.C. (2015) 1 NWLR (Pt. 1414) 531; Nwankwo v. Nwankwo (1995) 5 SCN 555; Kamba v. Bawa (supra) for the point.

On behalf of the respondent, learned counsel contended, per contra, that the said judgment of the lower Court was a consent judgment which required leave of Court before appealing against it. He relied on Abdulkarim v. Incar (Nig.) Ltd. (1992) 7 NWLR (Pt. 251) 1; Section 241 (2) (c) of the Constitution, as amended.

Resolution of the Application
The kernel of the respondent’s objection, though a knotty one, falls within a narrow compass. Its heart is that the decision, comprised in the judgment, delivered by the lower Court, per R. G. Soji, J., on 21st November, 2014, in

favour of the respondent was a consent judgment which the appellants needed leave of Court before appealing against it as ordained by Section 241 (2) (c) of the Constitution as amended. By way of necessary prefatory remarks a consent judgment which bears another appellation as agreed judgment is “a judgment entered pursuant to an agreement between the parties,” see R.A.S.C. Ltd v. Akib (2006) 13 NWLR (Pt. 997) 333 at 359, per Ogbuagu, JSC. In S.P.M. Ltd v. Adetunji (2009) 13 NWLR (Pt. 1159) 647 at 667, Adekeye, JSC, described consent judgment thus:
A settlement that becomes a Court judgment when the judge sanctions it. In effect, an agreed judgment is thereby a contract acknowledged in open Court and ordered to be recorded but it binds the parties as fully as other judgment.
In Woluchem v. Wokoma (1974) 3 SC 153/(1974) NSCC, Vol. 191 at 188, Ibekwe, JSC, weaved the nature of consent judgment in these illuminating words:
In order to have a consent judgment, the parties must be ad idem as far as the agreement is concerned; their consent must be free and voluntary; and the terms of settlement must be filed in Court. When the Court makes an

order based upon such terms of settlement, there emerges a consent judgment from which the parties could appeal only by leave of the Court.
From this ex cathedra authority, three constituents/elements of consent judgment have been deduced: the parties must reach a final agreement on the vital issues in their terms of settlement, they must be ad idem in their terms of compromise agreement and their consent must be free and voluntary, see Oshoboja v. Amudo. (supra); S.P.M. Ltd v. Adetunji (supra). In Abdulkarim v. Incar (Nig.) Ltd (supra), at 15, the Apex Court expanded the horizon/frontiers of consent judgment to include “submission to judgment or admission of claim or conceding to a claim,” Per Uwais, JSC, as he then was. In Abdulkarim case, the Supreme Court rightly took the view that the expression “with the consent of the parties” deployed in Sections 110 (2) (a) (iii) and 220 (2) (c) of the defunct 1963 and 1979 Constitutions respectively now Section 241 (2) (c) of the 1999 Constitution as amended is not coterminous with consent judgment. A consent judgment can be entered at any stage of the proceedings, see D.T.T. Ent. (Nig.) Co. Ltd v.

Busari (2011) 8 NWLR (Pt. 1249) 387.

Now, the gravamen of the respondent’s objection is that the applicants admitted its claims so that the decision of the lower Court qualified as a consent judgment on the authority of Abdulkarim v. Incar (Nig.) Ltd. (supra). I have read the 3-page judgment of the lower Court contained in Exhibit A, with a fine tooth comb. It is comprehension friendly. At page 2 of it the lower Court stated:
It is noted that the defendants never filed any notice of intention to defend the suit even though served. They rather came to Court and orally admitted the claim but asked for time to settle the indebtedness. They asked for February, 2015 to settle same. (Italics mine for emphasis)

This excerpt, particularly the italicized portion is a concrete evidence that the applicants admitted the respondents claim. Interestingly, the applicants conceded this much in their written address. In Abdulkarim v. Incar (Nig.) Ltd. (supra), at 17, Nnaemeka-Agu, JSC (of the blessed memory) intoned:
?… It appears to me that a decision of the High Court made with the consent of the parties means more than such a decision made after

a formal agreement by the parties which has been made on order of Court. It includes those decisions to which a party submits without a contest, the whole idea being that the law will not allow such a party to blow hot and cold at will.
This magisterial pronouncement with respect exposes the poverty of the applicants’ alluring submission that the decision of the lower Court was not a consent judgment. The applicants’ undiluted admission of the claim in the bowel of the lower Court, brought the decision within the perimeter of consent judgment.

It flows that the appellants required the leave of Court to appeal against the decision of the lower Court delivered on 21st November, 2014, as decreed by the inviolable provision of Section 241 (2) (c) of the Constitution, as amended. It is decipherable from the application that the applicants did not pray for leave of this Court to appeal against the said consent judgment. In effect, the application is infested with incompetence. The respondent’s objection to the application has merit. I uphold it. Consequently, I strike out the application for being incompetent. The parties shall bear their

respective costs.

Other Citations: (2016)LCN/8960(CA)

Alhaji Aminu Maigari & Ors V. Yahaya Adama & Ors (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

JOSEPH TINE TUR, J.C.A.

I have tagged this determination ?Decision? by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered because a ?decision? to mean, ?in relation to a Court, any determination of that Court and includes judgment, Decree, order, conviction, sentence or recommendation.? What the fathers of the Constitution omitted should not be inserted by trial and appellate Court Justices. In Davies vs. Powell (1737) Willes, 46, Willes, C.J. held at page 51 that, ?When the nature of things changes, the rules of law must change too.? R.W.M. Dias in Jurisprudence, 4th edition concurred at page 196 as follows:
?This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of change. The question under review is whether changed conditions may deprive a case of its law-quality
?The provisions of the Constitution are supreme and have binding force on every

person or authority in Nigeria. Any law, rule or judicial practice or precedent that is inconsistent with the provisions of the Constitution, to that extent, is void. See Section 1(1) and (3) of the Constitution (supra). I have the liberty to tag any determination an ?opinion? or ?decision? as provided under Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Any determination by a Justice of the Court of Appeal is a ?decision? or an ?opinion?.
In Deduwa & Anor. vs. Okorodudu & Ors. (1976) 1 NMLR Alexander, C.J.N. defined the word ?determination? at pages 243-244 as follows:
?We gave careful consideration to the argument of Chief Williams and Dr. Odje. First of all, in order that we should not find ourselves pursuing an academic exercise we had to satisfy ourselves as to whether or not the so-called ?ruling or determination? of the High Court was a judicial ?decision? or ?determination? within the meaning of Section 117(7) of the Constitution. This provision reads as follows:
?In

this Section ?decision? means, in relation to the High Court of a territory, any determination of that High Court and includes without prejudice to the generality of the foregoing provisions of this Subsection, a judgment, Decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation.?
More light is thrown on the meaning of the words ?decision? and ?determination? in the case of The Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, C.J.N. in giving the ruling of the Court said at page 432:
?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ?a bringing or coming to an end? or ?the mental action of coming to a decision,? or ?the resolving of a question.?
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ?determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme) Court, we send a matter back to the High Court for a

rehearing and determination; the word ?determination? therein meaning ?ending of the matter.
Section 294(2)-(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that:
?(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other justice who delivers a written opinion.
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was at the hearing.
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
(4) For the purpose of delivering its decision under this Section, the Supreme Court; or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sit for that purpose.?
Section 294(4) of the Constitution does not state that where the decision or opinion of the Court

is to be delivered, namely, in the Court or in any of Justices? Chambers. In Jarvis Motors (Harrow), Ltd. & Anor. vs. Carabott & Anor. (1964) 3 All E.R. 89 Ugoed-Thomas, J., (as he was) held at page 91 lines ?B?-?C? thus: what is not forbidden is permitted.?
?
The appellants have appealed against the decision of Hon. Justice Haruna Musa Kurya of the Federal High Court, Jos, Plateau State delivered on 8th April, 2016 in favour of the respondents. The Notice of Appeal was filed on 12th April, 2016. The appellant?s brief, settled by Festus Keyamo, Esq. of Counsel was filed on 10th May, 2016. The 1st and 2nd respondents? brief, settled by H.S. Ardzard, Esq. of learned Counsel was filed in this Court on 1st July, 2016. The 3rd respondent?s learned Counsel Olatigbe, Esq. ? Director in the Federal Ministry of Justice did not file any brief of argument hence was not granted audience when the appeal came up for hearing on 21st July, 2016. The appeal suffered some adjournments at the instance of learned Counsel for one reason or the other until briefs were adopted by the

appellants? Counsel on 21st July, 2016. Learned Counsel urged that the appeal be allowed. Page 6 of the brief set out the following issues for determination:
?1. Whether the learned trial Judge was right when he relisted a suit struck out for more than 14 months without cogent grounds? (This issue is distilled from Grounds 1 and 5 of the Notice of Appeal).
2. Whether the learned trial Judge was right when he restored the interim orders earlier made on 19th September, 2014 which had become spent and/or lapsed by effluxion of time? (This issue is distilled from Ground 2 of the Notice of Appeal).
3. Whether the learned trial Judge was right when he made an order restoring all orders including the order made on 23rd October, 2014 while relisting the suit struck out on 30th October, 2014? (This issue is distilled from Ground 3 of the Notice of Appeal).
4. Whether the learned trial Judge was right when he held that there was a proper prayer on the face of the motion paper to relist the suit? (This issue is distilled from Ground 4 of the Notice of Appeal).?
?
The learned Counsel to the 1st and 2nd respondents distilled the

following two issues for consideration at page 6 of the brief to wit:
?(i) Whether the learned trial Judge was right to have relisted for hearing and determination of suit No.FHC/J/CS/77/2014 which was earlier struck out by the Court. (Distilled from Grounds 1, 4 and 5).
(ii) Whether the learned trial Judge was wrong when he restored the interim order previously made in Suit No.FHC/J/CS/77/2014. (Distilled from Grounds 2 and 3).?

H.S. Ardzard, Esq. was not in Court to adopt the 1st and 2nd respondents? brief. However, Order 18 Rule 9(4) of the Court of Appeal Rules, 2011 is authority that ?When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.?

I wish to draw attention to Order 18 Rules 9(1) of the Rules (supra) which provides that ?Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing

in the briefs already filed in Court.?
It is within the province of the Court of Appeal Justices to allow oral argument at the hearing of an appeal if there is any thing to emphasize and clarify in the written argument appearing in the briefs already filed in Court. Where there is none, oral argument may not be allowed. The intention of the legislature is to determine appeals on the arguments in the briefs filed by the parties or their legal representatives.

Furthermore, Order 18 Rules 3(1)-(4) of the Court of Appeal Rules, 2011 provides as follows:
?3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory

instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and. wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.?
The parties or their legal representatives should assume that the Justices have read the briefs and considered all documents, law reports, and exhibits admitted in evidence during the proceedings in the Court below. This will obviate the necessity of summarizing in much detail the arguments of learned Counsel proffered in their respective briefs.

Order 18 Rule 3(1) of the Rules (supra) again provides as follows:
?3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds

of appeal.?

The duty of the respondents is provided in Order 18 Rule 4(1)-(2) to wit:
?4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.?
?The reason is simple: it is the appellants that are aggrieved with the decision of the Court below and have appealed to this Court. The issues formulated by the appellants relate or have arisen from the grounds of appeal. The duty of the respondent is to show why this appeal should be dismissed. For the above reasons, I shall confine my decision to the four issues formulated by the appellants for determination in the absence of a cross-appeal or a Respondent?s Notice as provided under Order 18 Rule 7

of the Rules (supra) which reads as follows:
?7. A respondent may, without leave, include arguments in respect of a cross-appeal or a respondent’s notice in his brief for the original appeal and the cross-appeal or respondent’s notice.?

I shall now consider the facts in dispute that led the respondents to institute the Originating Summons before the Court below against the appellants. In the determination of this appeal I shall review the arguments of Counsel only as it concerns the relevant matters in controversy. This practice was adopted by Lord UpJohn in Abudu Gbadamosi Ijale vs. B.A. Shonibare determined on 25th February, 1964, Privy Council Judgments (1841-1973) 1980 edition by Olisa Chukura (SAN), page 947 at 948 as follows:
?There were many issues of fact before the trial Judge but only one relevant to this appeal, namely, an important issue as to the existence of a ledger or produce book alleged to belong to the appellant which the respondent said, would contain entries relating to the transaction and would establish his case. The appellant denied the existence of any such book and the trial Judge decided this issue

in his favour. The Federal Supreme Court differed from the trial Judge fundamentally in holding that this ledger or produce book must be in existence. Therefore it followed, as the appellant had not produced it, that the inference must be drawn that its production would prove unfavourable to him. On this ground they allowed the appeal.
In these circumstances some review of the evidence by their Lordships is necessary but they propose only to review the pleadings and evidence relating to this question and in no wise to cover the many other matters which were in controversy before the trial Judge, but did not arise on the appeal before the Federal Supreme Court or JUSTICES.?

The 1st and 2nd respondents alleged that they are the legitimate Members of the Executive Committee of the Nigerian Football Federation elected on 26th August, 2014. They claim that the appellants were the Defunct Members of the Executive Committee of Nigerian Football Association/Nigerian Football Federation whose tenure of office expired on 25th August, 2014? and that the Plateau State Football Association (3rd appellant) represents

all the 36 States of the Federal Republic of Nigeria and of the Federal Capital Territory.? The 3rd respondent is the Honourable Minister of the Federal Ministry of Sports in Nigeria. The 1st and 2nd respondents instituted the action by way of originating summons supported by affidavits and documentary exhibits on 19th September, 2014 seeking that the following questions be determined by the Lower Court to wit:
?1. Whether having regard to the provision of Article 33(6) of the Nigerian Football Federation Statutes, 2010 the 1st defendant and all other members for the defunct Executive of the Nigerian Football Federation (hereinafter called ?the NFF?) having been elected and sworn in for a term of office of 4 years on 26th August, 2010 can still remain the President and Executive Committee of the NFF and execute the functions of such offices after the expiration of their tenure of office on 25th day of August, 2014.
2. Whether having regards to the provision of Article 29(1) of the NFF Statutes, 2010 the 1st defendant and all other members of the defunct Executive Committee of the NFF whose tenure of office

terminated on the 25th day of August, 2014 by effluxion of time have the vires to convene an extra ordinary general assembly of the NFF.
3. The Executive Committee of the NFF having convened a general assembly of the federation which held on the 26th of August, 2014 whereat a new President and members of the Executive Committee of the NFF were elected and sworn in for a tenure of four years, whether having regard to the general provisions of the NFF Statutes, 2010, the 1st and 2nd defendants and other members of the defunct executive committee of the NFF can still convene another general assembly or extraordinary general assembly of the NFF for the purpose of electing a President and other members of the executive committee of the NFF either at all or before the expiration of the tenure of the said Executive Committee elected on 26th August, 2014.?

If the questions were favourably determined the 1st and 2nd respondents wanted the Lower Court to grant them the following reliefs:
?1. A declaration that the tenure of office of the 1st defendant and all other members of the Executive Committee of the NFF led by him expired on 25th

August, 2014.
2. A declaration that the Executive Committee of the NFF elected and sworn in or 26th August, 2014 is and remains the only recognized and legitimate Executive Committee of the NFF.
3. A declaration that the tenure of office of the 1st defendant as President of NFF and other members of the Executive Committee of the NFF led by him having expired on 25th August, 2014, the said 1st defendant and all other members of the defunct of executive committee of the NFF led by him by themselves or through their agents or servants lack the vires to convene a general assembly or extraordinary general assembly of the NFF.
4. AN ORDER of perpetual injunction restraining the 1st and 2nd defendants and all other members of the defunct Executive Committee of NFF jointly and severally by themselves or through their agents or servants from convening and/or holding a general assembly or extraordinary general assembly of the NFF and/or conducting or holding any election into the Executive Committee of the NFF.
5. AN ORDER of perpetual injunction restraining the 1st and 2nd defendants and all other members of the defunct Executive Committee of NFF

jointly and severally from further parading themselves as the legitimate President and members of the Executive Committee of the NFF.
6. AN ORDER of perpetual injunction restraining the 3rd defendant and the Football Associations of the other 35 States of the Federation and of the FCT from participating in any general assembly or extraordinary general assembly convened by the 1st and 2nd defendants and the defunct members of the Executive Committee of the NFF.
7. AN ORDER of perpetual injunction restraining the 4th defendant from further giving recognition to the 1st and 2nd defendants and all other members of the defunct Executive Committee of the NFF as the legitimate President, General Secretary and Executive Committee of the NFF.
8. AN ORDER of mandatory injunction compelling the 1st, 2nd, 3rd and 4th defendants jointly and severally to give recognition to the general assembly meeting of the NFF held on 26th August, 2014 and the election into the Executive Committee of the NFF conducted at that meeting.?
?
Grace Ajio (F), Litigation Secretary in the Chambers of H.S. Ardzard & Co. Solicitors to the respondents swore an affidavit

in support of the originating summons on 19th September, 2014. Accompanying the originating summons are Exhibits ?1? to ?3? and a written address by the learned Counsel representing the respondents. Grace Ajio again swore to an affidavit in support of a motion exparte followed by an affidavit of urgency. The respondents sought the following reliefs against the appellants in the motion exparte:
?1. AN ORDER for leave to issue and serve the 1st, 2nd and 4th defendants an originating summons outside the jurisdiction of this Honourable Court and to indorse same as such.
2. AN ORDER of interim injunction restraining the 1st and 2nd defendants and all other members of the defunct Executive Committee of NFF jointly and severally by themselves or through their agents or servants from convening and/or holding a general assembly or extra-ordinary general assembly of the NFF and/or conducting or holding any election into the Executive Committee of the NFF pending the hearing and determination of the motion on notice filed in this case.
3. AN ORDER of interim injunction restraining the 1st and 2nd defendants and all other

members of the defunct executive committee of NFF jointly and severally from further parading themselves as the President and members of the executive committee of the NFF pending the hearing and determination of the motion on notice filed in this case.
4. AN ORDER of interim injunction restraining 3rd defendant and the Football Associations of the other 35 States of the Federation and of the FCT from participating in any general assembly or extraordinary general assembly convened by the 1st and 2nd defendants and the defunct members of the executive committee of the NFF pending the hearing and determination of the motion on notice filed in this case.
5. AN ORDER of interim injunction restraining the 4th defendant from further giving recognition to the 1st and 2nd defendants and all other members of the defunct executive committee of the NFF as the legitimate President and executive committee of the NFF pending the hearing and determination of the motion on notice filed in this case.
6. AN ORDER of mandatory injunction in the interim compelling the 1st, 2nd 3rd and 4th defendants jointly and severally to give recognition to the general

assembly meeting of the NFF held on 26th August, 2014 and the election into the executive committee of the NFF conducted at that meeting pending the hearing and determination of the motion on notice filed in this case.
7. AN ORDER of interim injunction restraining all the defendants by themselves, their servants or agents from interfering with the plaintiff?s performance of their duties/execution of their offices as executive committee of the NFF pending the hearing and determination of the motion on notice filed in this case.
8. AN ORDER for leave to serve all the defendants with all the Court processes in this case by substitution by pasting same at their respective addresses indicated on the face of the originating summons and in the case of any order of the Court by also publishing same through the electronic or print media.
AND SUCH FURTHER ORDER(S) as the Court may deem fit to make in the circumstances.?

The affidavit of urgency read as follows:
?1. That I am a litigation Secretary in the firm of H.S. Ardzard & Co., Solicitors to the plaintiff by virtue of which I am familiar with facts deposed to

hereunder.
2. That I have the consent of both my employers and the plaintiff to depose to this affidavit.
3. That I am informed by the 1st plaintiff in chambers at No.5A Kashim Ibrahim Street on 17th September, 2014 at about 9:45am and I verily believe the information to be true and correct as follows:
a. That he is a member of the general assembly/congress of the Nigerian Football Federation (hereinafter called the NFF).
b. That together with 2nd plaintiff and others he was also elected as a member of the executive committee of the NFF at the election which held during the general assembly of the said NFF on 26th August, 2014.
c. That sometime on the 26th of August, 2010 the general assembly of the NFF held wherein the first defendant and other members of the executive committee of the NFF were elected.
d. That the tenure of office of the President and all other members of executive committee of the NFF is 4 (four) years from the date of their election. A copy of the NFF Statutes, 2010 is annexed hereto as Exhibit ?1?.
e. That on or about 28th November, 2013 another general assembly of the NFF held wherein it

was decided that the next general assembly of the said NFF for the year 2014 will hold on the 26th August, 2014.
f. That at the said general assembly of the NFF held in 2013 it was agreed that one of the agenda for the 2014 general assembly of the said NFF would be an election of the President and other members of the executive committee of the NFF.
g. That the said general assembly of the NFF held in 2013 constituted an electoral committee headed by one Amino Biambo to organize and conduct the election of the President and other members of the executive committee of the NFF in 2014.
h. That the executive committee of the NFF led by the 1st defendant who was the President and the 2nd defendant who was the Secretary convened the general assembly of the NFF for the year 2014 to hold on the said 26th day of August, 2014 in Abuja.
i. That on the said 2nd day of August, 2014 the general assembly of the NFF held in Abuja. The minutes of the said general assembly is annexed hereto as Exhibit ?2?.
j. That one of the agenda of the said general assembly of the NFF was the election of the President and other members of the executive

committee of the NFF.
k. That at the said general assembly of the NFF held on 26th August, 2014 the electoral committee constituted by the general assembly of the NFF in 2013 conducted an election to elect the President and other members of the executive committee of the NFF.
l. That prior to the 26th day of August, 2014, the 1st defendant tendered his resignation as president of the NFF effective 25th day of August, 2014.
m. That consequent upon the deposition in sub paragraph (l) above, the then vice President of the NFF one Mr. Mike Umeh presided over the general assembly held on 26th August, 2014.
n. That the 2nd defendant also participated in the said general assembly in his position as general secretary of the NFF and he took the roll call of all the delegates present at the general assembly.
o. That after the roll call and accreditation of all the delegates at the general assembly on 26th August, 2014, the executive committee of the NFF elected on 26th August, 2010 was duly dissolved and the electoral committee constituted in 2013 was invited to conduct election to elect a new President and members of the executive committee

of the NFF.
p. That the said electoral committee conducted the said election and a new President and members of the executive committee of the NFF were duly elected and sworn in on that day. The report of the electoral committee is annexed hereto as Exhibit ?3?.
q. That however to the surprise and consternation of the football fraternity in Nigeria, after the said general assembly of the NFF held on 26th August, 2014, the 1st and 2nd defendants and other members of the executive committee of the NFF elected on 26th August, 2013 and dissolved on 26th August, 2014 continued to parade themselves as the President, Secretary and executive committee members respectively of the NFF.
r. That sometime on or about the month of September, 2014 the 1st and 2nd defendants and other members of the defunct executive committee of the NFF purportedly convened an extraordinary general assembly of the NFF to hold on or about 20th September, 2014, for the purpose of conducting another election of the President and other members of the executive committee of the NFF.
s. That the plaintiff came aware of the development deposed to sub paragraph (r)

above only sometime on or about the 17th September, 2014.
t. That the issues of election of the president and other executive committee members of the NFF and their tenure of office are guided by the provisions of the NFF Statute, 2010 i.e. Exhibit ?1?.
u. That already the 1st and 2nd defendants and all members of the defunct executive committee of the NFF have convened a purported general assembly of the NFF scheduled for 20th September, 2014.
v. That unless restrained the said 1st and 2nd defendants and members of the defunct EXCO of the NFF will hold the said general assembly on the said 20th September, 2014.
w. That the said 1st and 2nd defendant and other members of the defunct NFF intend to hold an election to elect a President and other members of the EXCO of the NFF.
x. If the 1st and 2nd defendants and members of the defunct EXCO of the NFF are allowed to conduct the said general assembly and election it will jeopardize the mandate of the plaintiffs and put Nigerian Football into serious confusion and crisis.
y. That if the mandate of the plaintiffs is allowed to be jeopardize, the plaintiffs will suffer

serious damages which cannot be adequately compensated in damages.
z. That if the said 1st and 2nd defendants and their defunct EXCO are allowed to conduct another election into the EXCO of the NFF, the damages that will be suffered by the plaintiffs would be irreversible and any judgment to be delivered by this honourable Court in the plaintiffs? favour would be rendered nugatory.
aa. That it will serve the interest of justice to preserve res pending the hearing and determination of the motion on notice filed by the applicant.
bb. That if the application is allowed and the motion on Notice fails the 1st and 2nd defendants and their defunct EXCO can go ahead and hold their congress and conduct their election but if the application is refused and the 1st and 2nd defendants and their EXCO hold their general assembly and election and the motion on notice succeeds the plaintiffs will be left to again fight against the new EXCO of the NFF that would have emerged which may take several years by which time their tenure may elapse and their case becomes an academic exercise.
cc. That the balance of convenience favours the grant of this

application.
dd. That the plaintiff gives an undertaking to compensate the defendants in damages if this application is granted and the motion on notice fails.
ee. That if the 1st and 2nd defendants are allowed to convene a general assembly of the NFF and to conduct election into the EXCO of the NFF it will result in a fait accompli thereby destroying the res of this litigation.
ff. That the action of the 1st and 2nd defendants is aimed at causing confusion in Nigerian Football.
gg. That the plaintiffs have a strong case which is likely to succeed.
hh. That serious urgency exists in this matter in view of the closeness of the date the 1st and 2nd defendants and their defunct EXCO scheduled their purported general assembly and election which is 20th September, 2014.
ii. That it will serve the interest of justice to serve the defendants with all the processes in this matter by substitution by pasting same at their respective addresses and to publish the order of this Court through the electronic or print media in view of the urgency of the matter and the limited period of time between now and the 20th day of September, 2014 when

the 1st and 2nd defendants intend to convene the purported general assembly of the NFF and the said election.
jj. That the 1st, 2nd and 4th defendants all reside or are located in Abuja the FCT which is outside the jurisdiction of this Honourable Court and that the leave of this Honourable Court is required to issue and serve them with the originating processes in this case.
4. I verily believe that it will serve the interest of justice to grant this application and that the defendants will not be prejudiced thereof.
5. I depose to this affidavit in good faith verily believing the content to be true and correct to the best of my knowledge, information, belief and in accordance with the Oaths Act.?

The respondents followed by filing a motion on notice supported by the sworn affidavit of Grace Ajio (F) on the same 19th September, 2014, pursuant to Order 28 Rule 1 of the Federal High Court (Civil Procedure) Rules and the inherent powers of the Court below. The respondents sought the following remedies:
?1. AN ORDER of interlocutory injunction restraining the 1st and 2nd defendants and all other members of the defunct

executive committee of NFF jointly and severally by themselves or through their agents or servants from convening and/or holding a general assembly or extraordinary general assembly of the NFF and/or conducting or holding any election into the executive committee of the NFF pending the hearing and determination of the substantive suit.
2. AN ORDER of interlocutory injunction restraining the 1st and 2nd defendants and all other members of the defunct executive committee of NFF jointly and severally from further parading themselves as the president and members of the executive committee of the NFF pending the hearing and determination of the substantive suit.
3. AN ORDER of interlocutory injunction restraining the 3rd defendant and the Football Associations of the other 35 States of the Federation and of the FCT from participating in any general assembly or extraordinary general assembly convened by the 1st and 2nd defendants and the defunct members of the executive committee of the NFF pending the hearing and determination of the substantive suit.
4. AN ORDER of interlocutory injunction restraining the 4th defendant from further giving

recognition to the 1st and 2nd defendants and all other members of the defunct executive committee of the NFF as the legitimate president and executive committee of the NFF pending the hearing and determination of the substantive suit.
5. AN ORDER of mandatory injunction in the interim compelling the 1st, 2nd, 3rd and 4th defendants jointly and severally to give recognition to the general assembly meeting of the NFF held on 26th August, 2014 and the election into the executive committee of the NFF conducted at that meeting pending the hearing and determination of the substantive suit.
6. AN ORDER of interlocutory injunction restraining all the defendants by themselves, their servants or agents from interfering with the plaintiff?s performance of their duties/execution of their offices as executive committee of the NFF pending the hearing and determination of the substantive case.
AND SUCH FURTHER ORDER(S) as the Court may deem fit to make in the circumstances.?

The reliefs sought in the motion on notice, if granted were to last pending the hearing and determination of the substantive suit? (See prayers 1-5)

or pending the hearing and determination of the substantive case.? (See prayer 6) on the motion on notice.

Allagoa, F.J., heard oral argument on the motion exparte and granted the reliefs sought by the respondents. The enrolled order is at page 148-152 of the printed record. The motion on notice was adjourned for hearing to 8th October, 2014. On 30th October, 2014 the following entries appear in the record of proceedings at page 401 lines 9 to page 402 lines 1-12 of the printed record:
?Parties are absent.
H.S. Ardzard appearing with S.D. Ekara for the plaintiff respondents.
D.N. Dashe appearing with D.I. Gwaza, Onoja Joshua and N. Yusuf for the 1st to 3rd defendants.
Mr. Ardzard: Since yesterday after the sitting of the Court so many well-meaning Nigerians have intervened in this matter and appended to the plaintiffs to give greater consideration to national interest in this suit. The plaintiff therefore decided that in the National interest they will discontinue with this matter. To that effect we have filed a notice of discontinuance dated 30th October, 2014. We therefore apply to withdraw this matter.

Mr. Dashe: Ordinarily this is not one notice that we intend to contest. However, filing this motion has the effect of arresting the ruling of the Court. We however pray this Honourable Court to discharge the previous orders made by this Honourable Court.
Court: This matter was slated for ruling today and having come for the ruling I am faced with a notice of discountenance dated and filed this morning the 30th October, 2014. Therefore pursuant to Order 50 Rule 2 of the Federal High Court Rules, 2009, the plaintiff having withdrawn this suit all the orders made previously including the dissolution of the Executive Committee/Board of the Nigerian Football Federation vide the order of this Honourable Court dated 23rd October, 2014 seizes to have life and this matter stands struck out.
No orders as to cost.?

The enrolled order at page 403 lines 27 to page 404 lines 1-15 of the printed record is as follows:
?ORDER
Upon this suit coming up today for ruling H.S. Ardzard of Counsel fro the plaintiffs with S.D. Ekara informed the Court that they want to withdraw the matter in the national interest to that effect, they have

filed a notice of discontinuance dated the 30th day of October, 2014. D.N. Dashe appearing with D.T. Gwaza, Onoja Joshua and N. Yusuf of Counsel for the 1st to 3rd defendants not opposing.
IT IS HEREBY ORDERED AS FOLLOWS:
1. That pursuant to Order 50 Rule 2 of the Federal High Court Rules, 2009, the plaintiff having withdrawn this suit, all the orders made previously including the dissolution of the executive committee/Board of the Nigerian Football Federation vide the order of this Honourable Court dated 23rd day of October, 2014 seizes to have life and this matter stands struck out.
2. That no order as to cost.?

Upon granting the above orders on 30th October, 2014 nothing happened till H.M. Kurya, F.J., (See page 405 lines 6-7 of the printed record) became the resident Federal Judge in the Federal High Court having taken over from Allagoa, F.J. On 10th March, 2016 Kurya, F.J., heard an application on notice dated 29th January, 2016 but filed on 3rd February, 2016 which adjourned to render a decision on 8th April, 2016. I have used ?decision? rather than ?ruling? since any determination by every Court

established under this Constitution is ?decision?. The word ?ruling? is omitted from Section 318(1) of the Constitution (supra).

On 8th April, 2016 Kurya, F.J., commenced his decision at page 414 lines 13 to page 415 lines 1-11 of the printed record as follows:
?RULING
This ruling is sequel to the plaintiff/applicants? motion on notice dated 29th January and filed 3rd February, 2016.
The motion is for three orders to wit:
(i) For extension of time to re-list
(ii) Order to re-list.
(iii) Restoration of all order made brought pursuant to Order 19 Rule 4(3), Order 50 Rule 4 and Order 26 of the Federal High Court (Civil Procedure) Rules, 2009 and under the inherent powers of this Honourable Court. It?s supported by a 5 paragraphs affidavit deposed to by one Mr. Ekara, a Counsel in the law firm of solicitors to the applicant.
The motion is supported by an accompanying written address. While the learned Counsel placed reliance on all the averments he adopted the written address as their argument before this Court and prayed the Court to grant all the three prayers.
The learned

Counsel proceeded to draw the attention of the Court to the 1st ? 4th respondents? counter-affidavit dated 10th February, 2016 and pointed that they have further responded by filing a reply on points of law dated 12th February, 2016 which he adopted as their further argument.?

Having summarized the facts in controversy, the learned Federal Judge considered the affidavit evidence and submissions of learned Counsel before holding at pages 425 lines 3 to page 427 lines 1-8 of the printed record as follows:
?I have considered the respondents defence as are contained under their paragraphs 2(j)-(o) and am of the view that each paragraph either lacks merit or has been rise premature been defences which can be rise during trial by oral evidence.
They are hereby refused. So also do I find with his oral argument as to the application being against public policy. The plaintiff/applicant application is for his personal right to be heard before a Court of law, it is a right yet to be determined. This Court is under a legal duty under the 1999 Federal Constitution to hear him and not to shot him out. For the length of time taken to

bring this application which is been explained anyway, has not and does not foreclose that right.
I have stated above that this is only a ruling in an interlocutory application. I am of the firm view that the plaintiff/applicant?s application be and is hereby granted and the respondents? defence or objection overrule.
Consequently, an order is hereby made:
(i) For extension of time within which to apply for re-list for hearing and determination of suit No.FHC/J/CS/77/2014 together with all the motions pending which were discontinued and struck out by this Honourable Court on the 30th October, 2014.
Consequently, all process filed in furtherance to the hearing of this suit are hereby deemed to have been properly filed and served.
(ii) An order is hereby made relisting for hearing and determination of this suit No.FHC/J/CS/77/2014 together with all the motion pending which were discontinued and struck out by this Honourable Court on the 30th October, 2014.
(iii) An order is hereby made restoring all the orders made by this Honourable Court in the suit No.FHC/J/CS/77/2014 when the suit was struck out on 30th October,

2014.
No order is made as to cost.
The case shall be adjourned for hearing on its merit.?

The learned Federal Judge went on to state at page 413 lines 16 of the printed record that, ?As agreed upon the case is hereby adjourned till the 30th May, 2016 for trial.? The appellants were aggrieved hence this appeal now under consideration. Though the learned Counsel to the appellants raised four issues for determination I am of the humble opinion that the issues do overlap. Formulated issues that overlap may be merged so as to avoid a proliferation of issues and arguments. See Anie vs. Uzorka (1993) 8 NWLR (Pt.309) 1 at 16 and 17. The Supreme Court deprecates proliferation of issues for determination. See Ononuju vs. State (2014) 8 NWLR (Pt.1409) 345 at 378; Omega Bank Nig. Plc vs. O.B.C. Ltd. (2005) 8 NWLR (Pt.928) 547; Mozie vs. Mbamalu (2006) 15 NWLR (Pt.1003) 466 and Odoemena Nwaigwe & Ors. vs. Okere (2008) All FWLR (Pt.431) 843 at 858.
?
The simple issue is whether the learned Federal Judge should have granted the reliefs sought by the respondents having taken over from Allagoa, F.J that was discontinued, withdrawn and

struck out by Allagoa, F.J., on 30th October, 2014. The Originating Summons was filed on 19th September, 2014. By that time the Federal High Court Civil Procedure Rules, 2009 was in operation or in force from 30th day of April, 2009. The answer to the four questions raised by the learned Counsel to the appellants for determination lies in the construction or interpretation of the provisions of Order 28 Rules 1, 2 of the Federal High Court Civil Procedure Rules, 2009. The learned Federal Judge relied on Order 50 Rule 1 of the Rules (supra) to grant the remedies now subject of this appeal.
?
In my humble opinion, Allagoa, F.J., was satisfied with the affidavit of urgency before making or granting the exparte orders filed on 19th September, 2014 pending the hearing and determination of the motion on notice. There was no challenge to the exparte orders by way of an appeal to the Court of Appeal. Furthermore, it was by consensus that Allagoa, F.J., pursuant to Order 50 Rule 2 of the Federal High Court Rules, 2009, granted leave for the respondents to discontinue and withdraw the suit which was struck out without any conditionalities. The order made on 30th

October, 2015 was, for emphasis and clarity, applicable to ?1. ?All the orders made previously including the dissolution of the Executive Committee/Board of the Nigerian Football Federation vide the order this Honourable Court dated 23rd day of October, 2014 seizes to have life and this matter stands struck out (2). That no order as to cost.?

To ?discontinue this matter, in the national interest? by filing ?a notice of discountenance? (See page 401 lines 13-18) were the reasons given by learned Counsel to the 1st and 2nd respondents on 30th October, 2014. Generally speaking, to ?discontinue? or ?discontinuance? is defined in Black?s Law Dictionary, 9th edition, page 532 to mean ?1. The termination of a lawsuit by the plaintiff; a voluntary dismissal? See DISMISSAL; NON SUIT (1); judgment of discontinuance under JUDGMENT
A ?judgment of discontinuance? means ?1. A judgment dismissing a plaintiff?s action based on interruption in the proceedings occasioned by the plaintiff?s failure to continue the suit at the appointed

time or times? often shortened to discontinuance The discontinuance of the suit arrested the delivery of the decision of Allagoa, F.J., in respect of the preliminary objection argued against the motion dated 8th October, 2014, and adjourned for a decision on 23rd October, 2014. On 29th October, 2014 Dashe, Esq. observed at page 398 lines 13 to page 400 lines 1-10 of the printed record as follows:
?Mr. Dashe: Ordinarily today would have been a date for hearing of the motion for leave to appeal the ruling of this Honourable Court delivered on the 23rd October, 2014. However, given certain development after the said application had been filed. We urged my Lord to take the preliminary objection same having been served.
Mr. Ardzard: We have no objection to the taking of the preliminary objection. Limine.
Mr. Ardzard: We have filed a counter-affidavit to the preliminary objection and we have filed a written address. We wish to correct a typographical error. In paragraph 3.4.1 of our address anywhere Section 33(1) of the Constitution appears to correct same to read Section 36(1) of the Constitution.
Mr. Dashe: We do not

oppose that application.
Court: Yes Mr. Dashe moves the preliminary objection.
Mr. Dashe: Before this Court is a Notice of Preliminary Objection dated the 22nd October, 2014 and filed on the 23rd October, 2014. The Notice of preliminary objection is supported by 5 paragraph affidavit, one annexure marked Exhibit ?A?. The Notice of preliminary objection is linked on two grounds as endorsed on the face of the notice as well as 4 particulars in support of the said ground. The notice prays the Court for striking out this suit No.FHC/J/CS/77/2014. In compliance with the Rules of this Court, the applicant filed a written address which we adopt, we urge the Court to hold that, this Honourable Court has no jurisdiction to entertain this matter, particularly so in vies of Exhibit ?A?. The plaintiff filed a counter-affidavit and formulated about 4 issues for determination especially as it relates to the affidavit.
Mr. Ardzard: In opposition to the notice of preliminary objection on behalf of the plaintiffs we have filed an affidavit of 5 paragraphs we place reliance on all the said counter-affidavit. We have filed a written

address. We adopt same capturing as our argument.
We don?t have any disagreement. The defendants ought to have sought internal dispute resolution mechanism on the Nigerian Football Federation Statutes. We won an election and have sworn in they are the ones who are not dissatisfied, they ought to seek internal mechanism for settlement of their grievance. I urge this Honourable Court to dismiss the objection and let this matter be determined on its merit.
Court: Having heard the parties argue this preliminary objection, the ruling will be given on the 30th October, 2014.?

That is to say, following the 1st and 2nd respondents, undertaking the appellants did not pursue their application seeking leave to appeal to the Court of Appeal against the decision of Allagoa, F.J., delivered on 23rd October, 2014. The Federal High Court Civil Procedure Rules, 2009 have no provision for arresting any decision or determination of the Federal High Court. Nevertheless Allagoa, F.J., did, contrary to the decision of the Supreme Court in Newswatch Communication Ltd. vs. Atta (2006) All FWLR (Pt.318) 580 at 606-609 paragraphs

?H?-?A? citing Bob-Manvel vs. Briggs (1995) 7 NWLR (Pt.409) 537. In the words of Ardzard, Esq. of learned Counsel to the 1st and 2nd respondents at page 401 lines 13-15 of the printed record the discontinuance and withdrawal of the Originating Summons and pending motions was to give greater consideration to national interest in this suit.? That is why ?the plaintiff therefore decided that in the national interest they will discontinue this matter See page 401 lines 15 to 17 of the printed record.

In Ogbechie vs. Onochie (1988) 2 SCNJ (Pt.1) 170, Oputa, JSC enumerated circumstances when a suit should be dismissed, struck out or an order of non-suit should be made at pages 194 as follows:
?Secondly, an order of dismissal puts an end to the claim, while an order for a non-suit or an order striking out, keeps the claim alive. Interest rei publicae ut sit finis litium (Co. Litt. 303). (It is in the interest of all that there should be an end to litigation)?.?
?
Even if Allagoa, F.J., had merely struck out the substantive suit and an application for time to be extended

to relist same had been brought by the 1st and 2nd respondents because an order striking out a suit keeps the claims alive, the learned Federal Judge, Kurya, J., should have taken into consideration that it is not permissible for parties or Counsel to jump in and jump out of the temple of justice whenever they like. Secondly, that the Latin maxim ?Interest rei publicae ut sit finis litium? meaning ?it is in the interest of all that there shall be an end to litigation? should have guided his decision.
?
Learned Counsel to the 1st and 2nd respondents informed Allagoa, F.J., on 30th October, 2014 why it became necessary to withdraw or discontinue the substantive suit. See page 401 lines 13 to 22 of the printed record. If the discontinuance and withdrawal of the suit on 30th October, 2014 was in the interest of this nation, why is it necessary almost two years thereafter to have this suit relisted by filing this application on 3rd February, 2016? Is it in the interest of the nation and the appellants to have the suit and all applications pending relisted? Between 30th October, 2014 and 3rd February, 2016 when this application was filed

and the Court delivered a decision on 8th April, 2016, a period of more than two years has lapsed. At no time did the 1st and 2nd respondents explain why it was no longer in the interest of this nation for the 1st and 2nd respondents not to have abided by their undertaking to discontinue and withdraw the suit in the interest of this nation. To ?withdraw? is ?1? To take back (something presented, granted, enjoyed, possessed, or allowed? 2. to retract (one?s words)? 3. to refrain from prosecuting or proceeding with (an action) ?Withdrawal? is ?1. The act of taking back or away; removing? 2. The act of retreating from a place, position or situation See Black?s Law Dictionary, 9th edition, page 1739. To ?strike out? means inter alia 3. To expunge, as from a record See page 1559 of the Black?s Law Dictionary (supra). The word ?expunge? is also defined at page 662 of Black?s Law Dictionary (supra) as follows:?Expunge: 1. To erase or destroy (the trustee wrongfully expunged the

creditor?s claim against the debtor). 2. Parliamentary law. To declare (a vote or other action) null and outside the record, so that it is noted in the original record as expunged, and redacted from all future copies. Also termed rescind and expunge; rescind and expunge from the minutes; rescind and expunge from the record. ? expungement, expunction.
?Where it is desired not only to rescind an action but to express very strong disapproval, legislative bodies have voted to rescind the objectionable action and expunge it from the record. When a record has been expunged, the chief legislative officer should cross out the words or draw a line around them in the original minutes and write across them the words, ?Expunged by order of the senate (or house),? giving the date of the order. This statement should be signed by the chief legislative officer. The word ?expunged? must not be so blotted as not to be readable, as otherwise it would be impossible to determine whether more was expunged than ordered. When the minutes are printed or published, the expunged portion is omitted.? National Conference of State

Legislatures, Mason?s Manual of Legislative Procedure, paragraph 444, at pages 296-97 (2000).
Expungement of record (1966) ? The removal of a conviction (especially for a first offense) from a person?s criminal record. ? Also termed expunction of record; erasure of record
The pending motion on notice and the exparte orders made were in respect of the Originating Summons. Whatever processes had been filed in the Court below were dependent on the Originating Summons. When Allagoa, F.J., granted the 1st and 2nd respondents leave to discontinue the originating summons and withdraw the suit on 30th October, 2014, that included all other processes founded on the suit discontinued and withdrawn, example, the decision already rendered on the exparte application by the learned Federal Judge and any pending motion on notice. All were expunged from the records of the Court below. The learned Federal Judge held that all the orders previously made seizes to have life and this matter stands struck out.? See page 404 lines 1-15 of the printed record.
?The withdrawal of the Originating Summons and its

striking out under the circumstances amounted to the restoration of the parties to the status quo prior to the institution of the main suit on 19th September, 2014 thereby paving the way for the appellants to continue in office as if no dispute or controversy existed between the parties. Generally, speaking a suit may be struck out with or without conditionalities but subsequently relisted. When relisted it is not a new suit; it is the old suit struck out that was relisted on the cause list. See Kassim vs. Ebert (1966) NNLR 75 or (1966) NSCC 44.
In Ogbechie & Ors. vs. Onochie & Ors. (supra) Oputa, JSC held at page 195 thus:
?Fourthly, an order of striking out, or of a non-suit, is usually made in the interest of justice. Now justice in civil proceedings is not a one way traffic. It is not justice for the plaintiffs/appellants alone. No. It is also justice for the defendants/respondents. Striking out the claim for a declaration will be of immense advantage to the losing plaintiffs (who can thereafter proceed afresh) without any corresponding advantage to the winning defendants/respondents in the Court of Appeal. Justice that is not even

handed is not justice. It may be injustice. The Court of Appeal showed some sympathy for the plaintiffs but as I observed in Willoughby vs. International Merchant Bank (1987) 1 NWLR 105 at page 132, justice should do far better without the bandage of prejudice or sympathy around her eyes

In Akunnia vs. Attorney-General of Anambra State (1977) 1 All NLR 118, Aniagolu, JSC held at page 128 thus:
The end result of an action, whatever its nature and no matter how framed, is that the party who approaches the Court obtains an order he seeks; the order he seeks may be declaratory or executory

The learned Counsel to the 1st and 2nd respondents filed a notice to discontinue the suit and withdraw same. The learned Counsel was invariably asking for the voluntary dismissal of the suit and the restoration of the status quo ante, a Latin maxim or phrase meaning, ?restore the situation that existed before something else (being discussed) occurred.? See Black?s Law Dictionary (supra) page 1542.
In Akapo vs. Habeeb (1992) 7 SCNJ 119, Karibi-Whyte, JSC held at page 140 that the phrase

meant:
the restoration of the parties to the position they were before April, 1985, when the respondents with force took over the management and control of the offices and property of the Ojora Chieftaincy family, hitherto under the control and management of appellant and the family Council
In Hanbury and Maudsley Modern Equity, 10th edition by Harold Greville Hanbury, pages 78-79 the learned author wrote concerning the issuance of interlocutory injunctions by Courts as follows:
The jurisdiction is related not to the most just method of protecting established rights, but to the most convenient method of preserving the status quo while rights are established. Interlocutory injunctions may be prohibitory, mandatory, or quia timet. Normally such an injunction remains in force until the trial of the action, but an interim injunction may be granted, which endures for some shorter specified period. If the parties consent, the interlocutory hearing may be treated as a final trial if the dispute is of law. But this will not be possible if the dispute is of fact, as affidavit evidence is unsuitable for such

issues.?
See Erinford Properties Ltd. vs. Cheshire County Council (1974) Ch. 261. At page 79 to 80 the author of Hanbury and Maudsley Modern Equity (supra) again wrote as follows:
Discontinuance of interlocutory injunctions ? If an interlocutory injunction is granted, the plaintiff has no right to its continuance if it becomes apparent that it was based on a wrong view of the law. Thus, in Regent Oil Co. Ltd. vs. J.T. Leavesley (Lichfield) Ltd., an interlocutory injunction granted to restrain the breach of a seven and a half year solus agreement was discharged when it appeared from subsequent decisions of the Court of Appeal that the agreement was void as an unreasonable restraint of trade.
As we have seen, failure to seek an interlocutory injunction to restrain the commission of a wrongful act will not necessarily preclude the plaintiff from later obtaining a final mandatory injunction to compel the defendant to undo the act.?
See (1966) 1 WLR 1210; Petrofina (Gt. Britain) Ltd. vs. Martin (1966) Ch. 146; Esso Petroleum Co. Ltd. vs. Harper?s Garage (Stourport) Ltd. (1968) A.C. 269 and Wrotham Park

Estate vs. Parkside Homes Ltd. (1974) 1 WLR 798.
The learned Counsel to the 1st and 2nd respondents filed a notice of discontinuance and withdrawal of the Originating Summons. This was akin to an undertaking, namely, ?1. A promise, pledge, or disengagement.? To ?undertake? is ?1. To take on an obligation or task? 2. To give a formal promise; guarantee etc, example, not to continue with the originating summons hence its withdrawal. See Black?s Law Dictionary (supra) page 1665. This appeal is of national interest. There is no sport Nigerians love like football. The crisis between the appellants and the 1st and 2nd respondents does not augur well for the administration of the Nigerian Football Association and Nigeria in general. The crisis does not portray Nigeria?s good image in the eyes of the international community or comity of nations. The Latin phrase is ?comitas gentium? or ?corrtoisie internationale.? In Magnus Smith vs. The Justice of Sierra Leone (1841) 13 E.R. 147 reported at page 1-4 of the Privy Council Judgments (supra) the Recorder?s Court in Sierra

Leone struck off the name of the appellant from the Rolls of a Legal Practitioner of that Court for contumelious conduct before that Court and also imposed certain fines on him. Learned Counsel was committed to prison for some days until the fine was paid. I shall reproduce the argument of the learned Counsel that represented the appellant and the respondents when the appeal came up for hearing before the Privy Council and the decision of Lord Brougham at pages 3-4 as follows:
Sir William Follet, Q.C., and Mr. Edmund F. Moore, for the Appellant, contended that the course taken by the appellant in objecting to the evidence given at the trial of the cause of Harper vs. Hillier, and moving the Court of the Recorder for a new trial, on the grounds stated in his notice of motion, was in strict accordance with the law and practice of her majestys Courts, as administered in this country and in the colony of Sierra Leone; and cited Dixon vs. Yates (7 Barn. and Add. 313), and Tatham vs. Wright (2 Russ. and Myl. 145), and after examining the proceedings and evidence, and commenting on the affidavits, they insisted that the treatment of the appellant

by the Court, in finding, imprisoning, and imposing upon him the payment of costs, and subsequently striking him off the roll of practitioners of the Court, was unjust, illegal, and oppressive, wholly unwarranted by the circumstances of the case, and not only entailing a grievous and irreparable injury upon him, but calculated to impair and bring into disrepute the due administration of justice in the colony.
Mr. Hoggins, for the respondents, insisted that the orders and proceedings against the Petitioner, were legal and proper, and ought not to be rescinded: and, on behalf of the respondent Lewis, he contended that having taken no part in the previous proceedings complained of, though present, and constituting part of the Court, at the time the order was made for striking the Petitioner off the rolls of the practitioners, he was improperly implicated and named in the appellants Petition: and he contended that the same ought to be dismissed, with costs. He cited Ex p. Elsam (3 Barn. and Cress. 597).
LORD BROUGHAM:- Their Lordships have fully considered the whole of the evidence before them in this case, and have attended also to everything

that has been urged by Counsel on both sides with great anxiety, in consideration of the nature and circumstances of the case. They are clearly of opinion that the order for striking out Mr. Smith off the rolls was without any foundation whatever, ought not to have been made, and must be rescinded. They are however of opinion that they can make no order respecting the fine imposed by the Court below upon Mr. Smith, but their Lordships are clearly of opinion, upon the whole of the evidence in this cause, that there is nothing whatever to affect, in any respect, the character of Mr. Smith. Upon the costs here they can make no order.
Mr. Moore Your Lordships judgment will reinstate Mr. Smith in his practice in Sierra Leone, with an unimpeached character, which is all we are anxious for.
I have alluded to this authority to show that a Court of law and equity should insist and ensure that Counsel move application strictly in accordance with the substantive law or Rules of and practice and procedure applicable in that Court. The remedies granted should be in conformity with the law or the Rules of practice and procedure. Thirdly, the

remedies granted are not, in the words of Sir Williams Follett, Q.C. leading Mr. Edmund F. Moore, for the appellant in the Privy Council was that the decision of the Recorder was ?unjust, illegal, and oppressive, wholly unwarranted by the circumstances of the case, and not only entailing a grievous and irreparable injury but calculated to impair and bring into disrepute the due administration of justice

The fact in Re A. Solicitor: Exp. Hales (1904-7) All E.R. Rep. 1050 stated by Darling, J., from pages 1051 to 1052 and A.T. Lawrence, J., from pages 1052 to 1053 were as follows:
?DARLING, J.:- I think this appeal should be allowed. It appears that the appellant had a claim against Fournet for work done for Fournet as a solicitor. Fournet was an undischarged bankrupt. He desired to tax the appellant?s bill of costs. To this the appellant objected on the ground that Fournet was an undischarged bankrupt, and had no intention of paying the costs. Upon that objection being made, Fournet said in effect: ?True, I am an undischarged bankrupt, but I have money, and I will put it in the hands of my solicitors, in order

that you may be safe.? He did pay more than sufficient to pay the bill into the hands of the respondent, who then wrote the letter of Dec. 11 to the appellant. In that letter he said:-
?Having regard to the statements made by your clerk to the master on our client?s application to tax your bill of costs, Mr. Fournet has today placed in our hands the full amount of your bills, so that? ? and this is important ? ?on the completion of the taxation we shall be in a position to pay you the amount certified by the master due to you.?
To my mind that is a definite statement by the respondent that on the completion of the taxation he would be in a position to pay the money. That means that the money will still remain in the respondent?s hands allocated to the payment of the taxed costs. I think it is important to notice that the word used is ?shall? and not ?should?. I understand the word ?shall? to mean that ?in consequence of what Fournet has done, I shall, on the completion of the taxation, be in a position to pay the money due to you.? This is another

way of saying, ?In consequence of what Fournet has done, on the completion of the taxation the money will still remains in my hands for the purpose of being paid to you.? In his affidavit the appellant said:
?On the faith of the said undertaking, and knowing that the money to meet my claim when ascertained by taxation was earmarked, I did not take any steps to enforce a prompt and due carriage of the order for reference, nor for the same reasons did I institute proceedings against Mr. Fournet which I otherwise should have done.?
Fournet died on the day that the summons with which we have to deal was issued. The respondent now declines to pay over the money necessary to discharge Fournet?s debt to the appellant, and gives as a reason that he himself is making a claim against Fournet?s estate for 77, and that he intends to hold this money in order to pay himself. Thereupon the appellant takes out this summons, and invokes the jurisdiction of this Court over one of its own officers.
Counsel for the respondent admits that we might make the order we intend to make, in certain circumstances, but he says this

letter is merely an undertaking given on behalf of his client by the respondent, and not a personal guarantee by him, and that the Court will, therefore, not make the order asked for. I do not think it is a personal guarantee in the sense that the respondent personally guarantee the payment of Fournet?s debt out of his own money, so that he would be out of pocket by paying the appellant. But I think it is a personal gurantee in the sense that it is a statement that Fournet having put funds into the respondent?s hands for the purpose of paying the appellant upon a certain event happening, that upon the happening of that event he will pay the money. His position is very much that of a stakeholder. I think a personal undertaking in that sense is quite sufficient to enable us to exercise the jurisdiction of the Court. Let us see whether the case comes within the rules laid down as to the circumstances in which the jurisdiction will be exercised. I prefer to take the definition given by Bowen, L.J., in Re Grey (1). The statement there is very accurate, and I think it is wide enough to cover this case. He says (1892) 2 Q.B. at page 447):
?The

solicitor in this case is in a situation which presents two aspects involving a double responsibility. He was a debtor of justice whose officer he was, to pay over the money which belonged to his client, and of which he had possession through the confidence placed in him in his professional capacity, and as an officer of the Court. There are in such a case two wholly distinct rights, the right of the client at law to be paid his debt, and his right to apply to the Court as a person whose confidence has been abused by a person who is an officer of the Court, and whom he would not have trusted unless he had been such an officer.?
It is perfectly plain to my mind that where there is no remedy by action for debt there may be this remedy because Bowen, L.J., says there are two wholly distinct rights. What happened? The appellant would not have trusted Fournet if Fournet had written a letter and said: ?I have got money enough to pay your bill.? Nor would he have altered his position on the respondent?s assurance that Fournet had money enough to pay the bill. Why he altered his position and thus brought himself within the rules was

because his confidence had been abused by an officer of the Court. He trusted the respondent where he would not have trusted Fournet. He trusted him because the latter said I have enough money to meet your bill, and it has been given to me so that on the completion of the taxation I shall be in a position to pay you the amount certified due to you by the master.
It seems to me that where a solicitor still has money in his possession confided to him by his client for a particular purpose to be paid over on the happening of circumstances which have since happened, it would be dishonorable for that officer to retain the money and doubtless do that which he desires to do ? namely, pay himself the sum which he himself claims against his client. It was laid down by Lord Esher, M.R., in Re Grey (1) (ibid. at page 443) that this jurisdiction which is now invoked exists for the purpose of ?enforcing honourable conduct on the part of the Court?s own officers.? Although there may be no case in which it has been said that the Court will use this power to prevent the commission of a breach of trust, my own opinion is that the Court should and

would make use of it if there is a declaration of trust. I think in this case the letter constitutes a declaration of trust whether it is a guarantee in another sense or not. I think this was a declaration of trust by the respondent, and one that made the appellant alter his position, and that being so, I think that the appellant, although not a client of the respondent, has the right to come to this Court and ask it to prevent this dishonourable conduct on the part of a solicitor, that dishonourable conduct being the commission of a breach of trust against the appellant, who has altered his legal rights in consequence of the declaration of trust. For these reasons I think the appeal must be allowed.
A.T. LAWRENCE, J.:- I am of the same opinion. I agree with the contention of Counsel for the respondent that mere dishonourable conduct does not give the Court jurisdiction to apply this summary remedy. The dishonourable conduct which gives the Court jurisdiction in such cases is dishonourable conduct to the applicant in the course of legal proceedings, and if the applicant can show that there has been dishonourable conduct to him prejudicing his position it

is then that he can come to the Court and say: ?I ask for the interposition of the Court by way of this summary remedy.? What was the position in this case? The client was an undischarged bankrupt. He owed a bill of costs to his late solicitor, and he wanted to have that bill taxed, as he had a right to do. The solicitor, when the matter came before the master, said this was a mere vexatious proceeding by an undischarged bankrupt to put him to the costs of going through a long taxation, and when it is done he would get nothing. I can easily imagine, upon that being stated to the master, the clerk on the other side saying: ?This is not a vexatious proceeding, and the client is not an undischarged bankrupt, and the bill will be duly paid.? The master accordingly made the order for taxation. When the clerk goes back the respondent, on being informed of what had taken place, communicated with Fournet, who was really undischarged bankrupt. That fact placed him in an awkward position, because he might be proceeding with a matter which might be extremely vexatious to the appellant. He communicated with his client and told him the position, and

Fournet replied: ?I have the money, and I will hand it over to you now,? and he did. The respondent thereupon wrote the letter of Dec. 11. What does that letter mean? It means, ?I am holding this sum of money to furnish the amount of your costs. I am not proceeding vexatiously, but bona fide to tax the bill of costs, and when the amount is due we? (i.e. the respondent) ?shall be in a position to pay you the amount certified due to you by the master.? How can litigation or legal proceedings be conducted justly or honourably if a statement of that sort is not to be taken as true? I think that the statement in the letter was not a personal undertaking in the sense that the respondent undertook to pay the money out of his own pocket, but was personal in the sense that he said: ?We? (meaning the name of the firm under which the practiced) ?have this fund which we hold appropriated to this purpose, and from which we will pay you any amount to which you establish your right.?
That was the position created by the letter between the parties. The taxation proceeds, and a sum of 80 10s.7d is found to

be due to the appellant. In the meanwhile, a long time having been allowed to elapse by the appellant on the faith of that letter, the respondent says: ?The position between myself and my client has altered. Costs are owing to me from him, and therefore, I propose to appropriate this sum to my own purposes.? I think that is one of the cases in which the Court should interpose and say: ?No; if you write letters of this kind and make these statements, which are acted upon by other persons, you cannot afterwards turn round and appropriate the money merely because your position had changed.? That would be, in the sense in which the Court uses the term, dishonourable conduct. I do not say that the respondent does not think that he has the right to protect his own interests, but I am of opinion that he is not right in so thinking. I quite agree that Re Grey (1) was a case in which the Court was dealing with a case arising between a solicitor and his client, and in that respect, no doubt, Counsel for the respondent was right in drawing the distinction between that case and this, and is right perhaps in saying that this letter was not a

personal guarantee. But it is a personal undertaking to apply that fund to a particular purpose, and I think therefore that the respondent is bound to pay over this money.?

Rules 30 and 31(1) and (3) of the Rules of Professional Conduct for Legal Practitioners, 2007 commencement date being 2nd January, 2007 provides as follows:
?30. A lawyer is an officer of the Court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice.
31(1) A lawyer shall always treat the Court with respect, dignity and honour.
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(3) A lawyer who fails to comply with any undertaking given by him either personally or on behalf of his client to a Court is prima facie guilty of professional misconduct.?

H.S. Ardzard, Esq. is an officer of this Court. Rule 55(1)-(2) of the Rules (supra) provides as follows:
?55(1) If a lawyer acts in contravention of any of the Rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall be guilty of a professional misconduct and liable to punishment as provided in Legal

Practitioners Act, 1975.
(2) It is the duty of every lawyer to report any breach of any of these Rules that comes to his knowledge to the appropriate authorities for necessary disciplinary action.?

Having voluntarily discontinued and withdrawn the Originating Summons and all other processes in order to restore the parties to the status quo bellum ante, where it was intended to revive or resuscitate the summons, the remedy lies in the provisions of Order 50 Rules 3-5 of the Federal High Court (Civil Procedure) Rules, 2009 which provides as follows:
?3(1) Except as provided by Rule 2 of this Order, a party may not discontinue any action or counter-claim, or withdraw any particular claim made by him therein without leave of the Court, and the Court hearing an application for the grant of the leave may order the action or counter claim to be discontinued or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.
(2) An application for the grant of leave under this Rule may

be made by summons or motion on notice.
4. Subject to any terms imposed by the Court in granting leave under Rule 3 of this Order, the fact that a party has discontinued an action or counter-claim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same cause of action.
5. Where a party has discontinued an action or counter-claim or withdrawn any particular claim made by him therein, and he is liable to pay costs to any other party of the action or counter-claim or the costs occasioned to any other party by the claim withdrawn, then if, before payment of those costs, he subsequently brings an action for the same or substantially the same cause of action, the Court may order the proceedings in that action to be stayed until those costs are paid.?
The 1st and 2nd respondents remedy is by filing a ?subsequent action? and no more. Even then in Agbeyegbe vs. Ikomi & Anor. (1953) 12 WACA 383 the suit was struck out on 7th July, 1938. The learned trial Judge relisted the suit on 15th September, 1947 on the application of the plaintiff after a lapse

of about nine years. Lord Oaksey, sitting in the Privy Council held at pages 385-387 as follows:
?Mr. Justice Rhodes in giving judgment did not comment upon the nine years delay which had elapsed between the sale and the application to have the case relisted or upon the reasons given by the appellant to excuse the delay, but found that owing to the fact that only two notices of the sale had been given the sale was irregular and null and stated that he was satisfied from the evidence that the appellant had sustained substantial injury by reason of the irregularity.
On appeal by the respondent to the West African Court of Appeal the appeal was allowed, the Court (Sir John Verity, C.J., Sir Henry Blackall, P., and Lewey, J.A.), being of opinion that in the exercise of his discretion the trial Judge did not appear to have taken into consideration all the relevant circumstances including such questions as to the extent of the delay in making the application to re-list the case, the reasons for the delay, the nature of the claim and the effect of granting leave upon the rights of the respondent.
Their Lordships are in agreement with the West

African Court of Appeal in thinking that the learned trial Judge did not exercise his discretion judicially on these matters.
A number of technical points have been argued on both sides JUSTICES. It has been argued for the appellant that the respondent ought to have appealed against the order to re-list and that the laches was not taken as a formal point at the earliest possible moment. The parties, however, were not legally represented at the hearing to re-list, no note was taken of their arguments at that stage, the question of delay was put in the forefront of the cross-examination of the respondent at the hearing and Counsel for the appellant JUSTICES recognized that the delay which had occurred was the real difficulty which he had to face.
In cases of laches the law was stated by Lord Blackburn in Erlanger vs. New Sombrero Phosphate Company (1), at page 1279:-
?In Lindsay Petroleum Company vs. Hurd (2) it is said: ?The doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct

done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. The two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy? I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required,

and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it. The determination of such a question must largely depend on the turn of the mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.?
The length of the delay and the nature of the acts done during the interval in the present case in their Lordships? opinion cause a balance of justice in favour of the respondent who had been in possession of the land for nine years at the time of the trial.
Reliance was placed on behalf of the appellant upon the cases of Weld vs. Petre (3) and Clifford vs. Clifford (4) but in their Lordships? view these cases are not in point in the present case.
Weld vs. Petre (3) was a case of a mortgage and it was expressly stated by Lord Russell of Killowen that delay in exercising the rights of a mortgagee stood upon an entirely different footing from delays in cases such as the present where the Court is asked to re-open a matter which has been already decided. Clifford vs. Clifford

(4) was a case of nullity of marriage and in such a case it is obvious that there may be circumstances which induce the delay which have no resemblance to the facts of the present case. In no other case to which their Lordships? attention has been drawn has there been anything like a delay of nine years and having regard to the length of the delay, the inadequacy of the explanation of the delay and the consequences of setting aside the sale of land as against a bona fide purchaser for value who had been in occupation of the land during the whole period and had apparently altered the buildings thereon, their Lordships are of opinion that the case ought not to have been re-listed and having been re-listed ought to have been dismissed.
Their Lordships will therefore humbly advice Her Majesty that this appeal ought to be dismissed. The appellant must pay the costs of the appeal.?
Sections 169 and 173 of the Evidence Act, 2011 reads as follows:
?169. When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to

believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person?s representative in interest, to deny the truth of that thing.
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173. Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.?
See Oyeyemi vs. Commissioner for Local Government, Kwara State (1992) 2 SCNJ (Pt.2) 266; Joe Iga & Ors. vs. Ezekiel Amakiri & Ors. (1976) 11 SC at 12-13; Rowrafric & Far Eastern Ltd. vs. Arbenake & Ors. (1958) WRNLR 92; Ukaegbu vs. Ugoji (1991) 6 NWLR (Pt.196) 127 at 143-144; Ehidimhen vs. Musa (2000) 4 SC (Pt.2) 157 at 175-176 and Osirinde vs. Ajamogun (1992) 6 NWLR (Pt.246) 156.
?
The justifiable remedy is to allow this appeal, set aside the decision of the Lower Court and dismiss

the application of the 1st and 2nd respondents upon which these offensive remedies were anchored. This appeal is allowed. The decision of the Court below is set aside. The application by the 1st and 2nd respondents seeking to relist the originating summons previously struck out by Allagoa, F.J., is hereby dismissed. The 1st and 2nd respondents are to jointly and severally pay N50,000.00 cost to each appellant.

Other Citations: (2016)LCN/8959(CA)

Federal Capital Development Authority & Anor V. Mtn Nigeria Communication Limited & Anor (2016) LLJR-CA

Federal Capital Development Authority & Anor V. Mtn Nigeria Communication Limited & Anor (2016)

LawGlobal-Hub Lead Judgment Report

MOHAMMED MUSTAPHA, J.C.A.

This is an appeal against the decision of the High Court of the Federal Capital Territory, Abuja of the 6th March, 2014 Coram M.M. Dodo, J, by an Amended Notice of Appeal filed on the 8th of October, 2014, and deemed properly filed by an order of this Court on the 20th day of May, 2015 on the following grounds, shorn of their particulars:

GROUND ONE:

That the learned trial judge erred in law when he entered judgment in favour of the 1st respondent in the sum of N250,000,000.00 against the appellants as general damages for negligent misrepresentation when the said 1st respondent had failed to plead negligence, enumerate the particulars of negligence and/or state the duty of care owed her by the appellant in his counterclaim relied upon as required by law.

GROUND TWO:

The learned trial judge erred in law when he wholly relied on a hearsay evidence in absolute disregard to the provision of Section 38 of the Evidence Act to hold that the 1st respondent proved her head claim of negligence before the Honourable Trial Judge against the appellants.

GROUND THREE:

That the

learned trial judge erred in law when without any credible evidence adduced by 1st respondent to preponderate the scale of justice in their favour against the defense of the appellants, it held that the actions of the appellant towards the 1st respondent amount to negligent and at the same time dereliction of duty and thus awarded the sum of N250,000,000.00 damages to the 1st respondent even when the 1st respondent placed no particulars in proof therefore before the Court.

GROUND FOUR:

The learned trial judge misapplied the law with regard to the exercise of judicial discretion when without basis he awarded the sum of N250,000,000.00 against the appellants in favour of the 1st Respondent as general damages for “negligent misrepresentation”.

GROUND FIVE:

That the learned trial judge failed to appropriately appraise the facts relied upon by the parties before making the award of the jumbo damages of N250,000,000.00 in favour of the 1st respondent for ‘negligent misrepresentation’ against the appellants.

GROUND SIX:

The decision of the trial Court is against the weight of evidence.

From these grounds of appeal three issues were

formulated for the appellants in the brief settled by Dr. Soni Ajala Esq., as follows:

1. Whether the 1st respondents failure to plead the cost of building and cost of dismantling the telecommunications equipment in her Counter-Claim (1st respondent’s Counter-Claim at pages 61 – 64 of the record) did not render the portion of the judgment and award of damages in the sum of N250,000,000.00 to the 1st respondent unsustainable in law.

2. Whether the learned trial judge in the light of 1st respondent’s failure to present particulars of negligence before the Court below as required by law was right and justified to have held that the 1st respondent is entitled to compensation and award of damages in the sum of N250,000,000.00 for the alleged negligent misrepresentation of the appellants.

3. Whether the decision and order of the learned trial judge granting the award of damages in the sum of N250,000,000.00 to the 1st respondent which is unsupported by any pleading and evidence and/or inappropriate appraising of the facts placed before him does not amount to perversion of justice that was adverse to the appellants.

The second

respondent, represented by Modestus Alozie Esq., of counsel chose not to file a brief; while the first respondent formulated two issues of his own for determination in the brief settled by Rotimi Oguneso Esq., SAN:

1. Whether the award of general damages in the sum of N250,000,000.00 (Two Hundred and Fifty Million Naira) in favour of the 1st Respondent by the trial Court was unsustainable in law or amount to perversion of justice because the 1st Respondent did not plead particulars of damages in its claim for general damages (Ground 1, 2, 3,4, 5 and 6).

2. Whether the 1st Respondent in its pleadings made out particulars of the alleged negligence against the 1st and 2nd Appellants and at trial discharged the requisite burden of proof in respect of the allegation of negligence and was therefore entitled the award of the sum of N250,000,000.00 as general damages by the trial Court (grounds 2, 4, 5 and 6).

This appeal will be decided on the issues as formulated for the 1st respondent, not only for being apt in the circumstances but also for brevity.

Issue One:

Whether the award of general damages in the sum of N250,000,000 in favour of the

1st respondent is unsustainable in law or amounts to perversion of justice, because the first respondent did not plead particulars of damages in its claim for general damages.

It is submitted for appellant that the absence of pleading by the 1st respondent, on the cost of erecting and dismantling the telecommunications equipment, as well as lack of evidence on same left the trial Court in the dark; learned counsel referred the Court to KARIMU V. LAGOS STATE (2012) 5 NWLR part 1294 page 620 at 649, Order 4 Rule 15 of the High Court of the Federal Capital Territory Abuja Civil Procedure Rules 2004 and OTARU & SONS LTD V. IDRIS (1999) 6 NWLR part 606 page 330 at 357.

It is submitted in response, for the 1st respondent, that DW1 testified to the effect that based on prevailing estimate at the time the suit was instituted the cost of building a new base is One Million USD, and the cost of dismantling is 150,000 USD.

That also the only relief granted to the 1st respondent was the award of N250,000,000 as compensation/general damages for the hardship and loss incurred.

Learned senior counsel admitted that the estimated cost of erecting and

dismantling a telecommunication mast as stated above was not one of the reliefs sought from the trial Court, and same was not its ratio decidendi of rationale for the decision granting damages.

That the rationale for the award of damages was the appellants’ negligent misrepresentation admitted in Exhibit H and the contradictory statement of DW2 and the testimony of DW1 as alleged.

That also the damage sought was for general damages and not specific or special damages that required pleading of particulars; learned senior counsel referred the Court to YALAJU V. AREC LTD (1990) 4 NWLR Part 145 at 422, British AIRWAYS V. ATOYEBI (2014) 13 NWLR Part 1424 at 254.

It’s clear from the record before this Court that the 1st respondent did not plead particulars of the alleged negligence to entitle it to a claim for N250,000,000 in special or specific damages; indeed by admission of the learned senior counsel to the 1st respondent, at page 8 Paragraph 4.7 of the claim is for “…general damages and not specific or special damages that requires pleading of particulars….

The burden to specifically plead and strictly prove special damages is on a

party who claims it, although the tendering of documentary evidence in the form of receipts in proof of special damages could be a good mode of discharging the burden on the claimant, it is however not an indispensable or exclusive means of poof of special damages, see PRODUCE MARKETING BOARO V. A.O. ADEWUNMI (1972) 11 SC 111/24, where it was held: “The pleadings and evidence in the claim for special damages must be such that they are of such character and quality for assessment and quantification.” In the case of NBB CO. LTD. v. A.C.B. LTD. (supra), the Supreme Court had stated the requirement as follows:-

“It is trite law that where the claimant specifically alleges that he suffered special damages, he must per force, prove it. The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms easily cognisable, the loss or damage he has suffered and being claimed. A damage is special in the sense that it is easily discernible and quantified. Per Garba JCA.

It was first agued for the first 1st respondent at Paragraph 4-3 of the brief that “…DW1 testified in this matter that based on the prevailing

estimate at the time 1st respondent instituted this suit the cost of building a new base station is One Million Dollars and the cost of dismantling same is One Hundred and Fifty Thousand US Dollars…”

Now what is the point of this evidence, if same was not pleaded Special damages are such that the claimant has to particularise them in his pleadings to enable him to give evidence thereto and to recover thereon, see ATTORNEY-GENERAL, OYO STATE V. FAIRLAKES HOTELS (NO 2) (1989) 5 NWLR (pt. 121) 255. FURTHER SPECIAL DAMAGES MUST BE STRICTLY PROVED. SEE AGUNWA V. ONNKWUE (1962) 1 ALL NLR 537; (1962) 2 SCNLR 275 AND BASIL V. FAJEBE 1990 6 NWLR (PT. 155) 172.

It is submitted for the 1st respondent, in another breath that the damages sought against the appellants was for general damages and not for specific or special damages, in which case there is no need to plead same; thus admitting the lack of pleadings in that regard.

Learned senior counsel to the 1st respondent also argued that the ratio decidendi of the trial Court was not based on the cost of erecting and dismantling a telecommunication mast but flowed from the negligent

misrepresentation of the appellants to award the special damage.

In an action for negligence, a claimant can only succeed if in addition to pleading and particularising negligence, he also establishes the duty of care owed to him by the party he accuses of negligence, and a breach of that duly; It is not enough to allege all these in pleadings without establishing them by credible and reliable evidence at the trial, or on the converse side lead evidence on them when such particulars are not pleaded, see ANYAH V. IMO CONCORDE HOTELS LTD & 2 ORS. (2002) 12 S.C. (PT. 11) 77, OKOLI V. NWAGU (1960) SCNLR 48; (1960) 3 FSC 126; NIGERIAN AIRWAYS LTD V. ABE (1988) 4 NWLR (PT. 90) 524.

The findings of the trial Court are very clear; it held in page 419 that: “I agree in toto with the Defendant/Counter Claimant that the actions of the 2nd and 3rd Defendants by counter claim towards the Defendant/Counter claimant amount (sic) to negligent I therefore unhesitatingly hereby award the sum of N250,000,000 only against the 2nd and 3rd Defendants by counter claim for their negligent misrepresentation.”

Learned senior counsel for the appellant made a

valiant effort of categorizing the award as one falling under general damages, so that it will be needless to plead or prove same, but the trial Court made clear references to negligence in its judgment which cannot be ignored, especially the evidence of DW2; learned senior counsel cannot have it both ways: the award of N250,000,000 “…for their negligent misrepresentation,” cannot hold because it is neither pleaded nor proved and there does not appear to be any basis for the award in the circumstances.

This Court cannot help but agree with learned counsel for the appellants that the trial Court cannot also be assisted in any way by the evidence of estimated cost coming from DW1, not only because there is a need in law to plead and front load same but because the law does not give for speculation by way of estimates.

It is for these that this issue is resolved in favour of the appellants, against the 1st respondent.

Issue Two:

Whether the 1st respondent in its pleadings made out particulars of the alleged negligence against the 1st and 2nd Appellants and at the trial discharged the requisite burden of proof in respect of the allegation of

negligence and was therefore entitled to the award of the sum of N250,000.000 as general damages by the trial Court.

It is submitted for the appellants while referring to KOYA V. UBA LTD (1997) 1 NWLR part 481 Pg 251 at 291 and ABUBAKAR V. JOHN JOSEPH (2008) 34 part 2 NSCQ 1195 that 1st respondent failed to plead the cost of dismantling the equipment throughout its counter claim, and cannot be reconciled with the award of N250,000,000 damages.

That the trial Court was wrong in awarding damages of N250,000,000 for negligent misrepresentation; learned counsel referred the Court to OGIRI V. NAOC (2010) 14 NWLR part 1213 208 at 222-223 and Paragraphs 7, 8, 9 and 10 of the written deposition of the 1st respondent’s witness.

That even though 1st respondent claimed at Paragraph 7 of the witness’ deposition to have incurred huge expenses no particular of such expenses was pleaded or tendered in evidence.

That also Exhibit H, the letter by the appellants, informing the 1st respondent the error of the allocation of the land in dispute was written about eight months after the allocation to the 1st respondent on the 25th of April, 2002, thus giving the

1st respondent notice its occupation of the land was illegal and so damages cannot be accruable to the 1st respondent from the time of taking the writ in 2005.

Learned counsel submitted that the trial Court was wrong to have relied on the evidence of the 1st respondent from when it took out the writ; he referred the Court to NSEFIK V. MUNA (2007) 10 NWLR part 1043 page 502 at 514 and Sections 135, 136 and 137 of the Evidence Act, 2011 .

In response it is submitted for the 1st respondent that the appellants’ witness DW2 admitted that he knew that the grant to the 1st respondent was in error, but the 1st and 2nd appellants were not aware; and it is on the basis of Exhibit H and the testimony of DW2 that the trial Court awarded damages.

Learned senior counsel also submitted while referring to BLYTH V. BIRMINGHAM WATERWORKS CO. (1856) 11 Ex 781 at 784 and DONOGUE V STEVENSON (1932) A.C 526 that what is required in a claim based on the tort of negligence is to prove the existence of a legal duty of care, and a breach of such duty.

That the appellants owed the 1st respondent a duty of care to check their record and ensue that the plot

allocated to the 1st respondent was vacant before approving same, and the appellants failed in the performance of that duty of care to check their record.

That the fact that the 1st respondent has suffered financial loss and hardship means that can only be remedied by the award of general damages in its favour as was done by the trial Court, learned senior counsel referred the Court to BELLO & ORS V. A.G. OYO STATE (1986) 5 NWLR part 45 at 890 and OYEKANMI V. NEPA (2001) FWLR part 34 pg 404 at 436.

That also it is not enough for the appellants to merely admit their blunder, the 1st respondent has to be compensated especially as it provided particulars of negligence before the trial Court which led to the award of N250,000,000.

The appellants clearly admitted by pleadings, testimony and especially by Exhibit H, a letter dated 25th of April, 2002 that the 2nd respondent and not the 1st respondent is the rightful and therefore legal owner of the land in dispute, as the allocation was made in error; the 1st respondent having been allocated the land in dispute on the 13th of August, 2001.

Exhibit H clearly put the 1st respondent on notice,

as to the error of the allocation eight months after the blunder, but the 1st respondent continued to be in occupation up to the time the 2nd respondent took up a writ in 2005; the 2nd respondent wrote to the 1st respondent on the 28th of August, 2002 complaining about the trespass, as per page 28 of the record of appeal, and the 1st respondent by a letter dated 11th April, 2002 not only acknowledged the said letter but promised to look into the matter, see page 29 of the record of appeal.

This Court agrees with learned counsel for the appellants that the period of mistake or negligence for which the trial Court could have compensated the 1st respondent, if it had done what as expected of it is eight months, i.e. up to the time of writing Exhibit H, on the 25th of April, 2002 from which time the 1st respondent had notice of the error, which it chose to ignore and not up to 2005 as is the case.

This clearly is a proper case of improper evaluation of evidence, born out of substitution of evidence by inference; speculation is not acceptable in our Courts, because neither the parties nor the Court is permitted or entitled to speculate anything; where a

decision is based on speculation it is liable to be set aside, for good reason, see OVERSEAS CONSTRUCTION CO. (NIG.) LTD V. CREEK ENTERPRISES (NIG) LTD (1985) 3 NWLR (PT. 13) 407; BAKARE V. A.C.B. LTD (1986) 5 SC 48; OLAWUYI V. ADEYEMI (1990) 4 NWLR (Pt. 147) 746; SEISMOGRAPH SERVICE (NIG) LTD V. OGBENI (1976) 4 SC 85.

Even the eight months which the 1st respondent could have otherwise been entitled to compensation for cannot be supported by either pleading or evidence. There is no basis therefore, for the award of the N250,000,000 in damages, in the absence of evidence or pleading in support of same.

It is therefore glaringly clear in view of the above finding, that the conclusions of the trial Court have no basis in law: Paragraph 8 of the 1st respondent’s witness on oath dated 14th of May, 2008, cannot by any stretch of imagination be of any help either, because even though it gave evidence on the cost of building and dismantling the telecommunications mast, it did not plead facts nor particulars in the counter claim to warrant the award; see page 224 of the record of proceedings.

It is very important in the considered opinion of this Court

to take serious note of the fact that if the trial Court had itself taken note of the fact that the 1st respondent became aware of the error in allocation of the land to it, at least on the 25th of April, 2002, eight months after the allocation, and yet it stayed on, until 2005, in utter disregard to the information until the filing of the writ, it would not have arrived at the conclusion it did, with regard to the award of damages; thus lending credence to the contention that the award is erroneously based on a wrong principle, because the 1st respondent is being compensated for a period in excess of ten years, for negligent misrepresentation, without pleading or providing proof of particulars of negligence, to be entitled to such an unjustifiably huge amount of N250.000.000.

It is an accepted part of our jurisprudence that award of damages is ordinarily within the discretion of a trial Court in respect of which an appellate Court would be reluctant to interfere; but an appellate Court will readily interfere if the trial Court acted on a wrong principle of law or under a mistake of law, or where its decision on damages is perverse or the award is

unjustified, see KOTUN V. OLASEWERE (2009) ALL FWLR (PT. 477) 41.

Accordingly this issue is resolved in favour of the appellant, against the 1st respondent; having resolved the two issue for determination in favour of the appellant, and against the 1st respondent this appeal succeeds, and it is hereby allowed.

The part of the judgment and order of the trial Court of the 6th of March, 2014 awarding N250,000,000 to the 1st respondent is hereby set aside.

Parties to bear their respective costs.

Other Citations: (2016)LCN/8957(CA)

Mr. Ibrahim Oginni Adepoju & Ors V. Mrs. Idowu Famoroti (Nee Oniya) & Ors (2016) LLJR-CA

Mr. Ibrahim Oginni Adepoju & Ors V. Mrs. Idowu Famoroti (Nee Oniya) & Ors (2016)

LawGlobal-Hub Lead Judgment Report

JAMES SHEHU ABIRIYI, J.C.A.

This is an appeal against the judgment delivered on 3rd April, 2014 in the High Court of Ondo State holden at Akure. The Appellants in that Court were the Defendants. Their counterclaim was struck out on 21st November 2012 having been withdrawn.

The Respondents who were the Plaintiffs in the lower Court claimed for the following:
a. A DECLARATION that the claimant’s family is the traditional and undisputed owner of the large parcel of farmland at Oke Oko, Emure village, Akure bounded by Filani Orimoloye’s farmland near Ogidan River, Abusoro farmland, Olomi Peter’s farmland and Ojomu Alade’s family farmland thereby entitling them to the customary right of occupancy in respect thereof.
b. AN ORDER to render account of the number of plots sold on the claimants’ family farmland at Oke-Oko, Emure village and the cost of each plot of land sold therein.
c. AN ORDER of perpetual injunction restraining defendants, their servants, privies, agents and successors from committing any or further acts of trespass on the said farmland.
d. The sum of N5,000,000.00

damages for trespass committed and still being committed by the defendants upon the said parcel of the claimants’ family farmland at Oke-Oko, Emure camp, Akure.

The case of the Respondents in a resume is that the land in dispute is called Oke-Oko in Emure. Emure is an entire village originally owned by Sasere Adegbuji. Sasere Adegbuji had inherited Emure village from his mother Princess Adekorun. Princess Adekorun got Emure village as gift from her father, Oba Deji Arakale who originally owned Emure which is part of Akure. The land in dispute became the property of Egboro after it was allocated to him by his father Sasere Adegbuji. All the children of Sasere Adegbuji got allocation of land at Emure village from Sasere Adegbuji. The part settled upon by Egboro is Oke-Oko. The claim of the Respondents is in respect of the part settled upon by Pa Egboro.

Pa Adegbomire, the Appellants’ great grandfather’s farmland is at Alubere in Emure village and the Appellants are not co-owners of the farmland at Oke Emure village with the Respondents family.

On their own part, the Appellants’ case is that Princess Elusade daughter of Oba Osupa was the

original owner of the land called Emure and she brought her husband Chief Sasere Adegbuji to farm and settle on the land. Other people came to the land because Adegbuji invited them as friends.

After considering evidence adduced by both parties and written addresses of learned counsel for the parties, the lower Court entered judgment in favour of the Respondents.

Dissatisfied with the decision of the lower Court, the Appellants filed an initial notice of appeal dated and filed 4th April 2014 containing four grounds of appeal. The notice of appeal was amended by order of this Court. The amended notice of appeal dated 22nd February 2015 was filed on 2nd March 2015 and was deemed duly filed and served on 1st March 2016. The amended notice of appeal contains eight (8) grounds of appeal from which the Appellants formulated the following three issues for determination:
1. Whether the trial Court was right when in its wisdom it conjured a non existing Court process titled 1st further Amended Statement of Claim filed on 20th day of January, 2014 and based its decision on the said non existing Court process.
2. Whether the trial Court was

right when he shifted the onus of proof on the defendant who had already withdraw (sic) their it (sic) counter-claim and also making case for respondent.
3. Whether the claimants/respondents have prove (sic) their case in the absence of/or after removing the perverse findings of the trial Court and the area where the trial Court descended into the arena of making cases for the claimants/respondents.

The Respondents presented the following three issues for determination in spite of the preliminary objection to Appellants’ issue 1 and ground 7 of the amended notice of appeal:
1. Whether there was a subsisting Amended Writ of Summons, 1st Further Amended Statement of Claim and existing Written Statement on oath upon which the trial Court based its decision – GROUNDS 6 AND 7 OFTHE ADDITIONAL GROUNDS.
2. Whether the lower Court based its judgment on balance of probabilities in granting the claim of the Respondents – GROUNDS 2 AND 3 OF THE GROUNDS OF APPEAL.
3. Whether the evidence of the Record supported the findings of the trial Court – GROUND 5 OF THE GROUNDS OF APPEAL.

The appeal was thus argued on the following briefs:
1.

Appellants brief of argument dated 25th February 2015 and filed 2nd March 2015 settled by Busuyi Bankole Esq.
2. Respondents’ brief of argument dated and filed 6th May 2016 settled by Oluwole Adeyemo Esq.

Arguing issue 1, learned counsel for the Appellants contended that the lower Court based its findings on a non-existent Further Amended Statement of Claim filed on 20th January 2014. Therefore the case of the Respondents was never determined by the lower Court.

It was further argued that the statements on oath relied upon in giving judgment did not accompany the statement of claim. The Respondents, it was submitted, ought to have filed along with the new writ all the accompanying Court processes such as the list of documents and written statements an oath of the witnesses.

The Court was urged to set aside the judgment of the lower Court on the basis of the above omissions.
On issue 2, it was submitted that where a defendant has no counterclaim, the burden of proof lies squarely on the plaintiff.

It was contended that the witnesses called by the plaintiffs in their evidence said that they did not know the land which forms

the subject matter of the suit.

It was submitted that the onus was on the Respondents to describe the area they are disputing with certainty through cogent and compelling evidence.

Learned counsel for the Appellants complained about the finding of the lower Court that the Appellants are tenants having found that they were in possession and wondered how the Respondents stood by when the Respondents built permanent structures on the land.

The lower Court, it was contended, believed the evidence of Pw3 who denied signing his written statement on oath and wondered how the lower Court could believe such a witness.

The Pw4, 1st Respondent, it was contended, gave evidence under cross-examination that she did not know the boundaries of the land in dispute. We were referred to page 146 of the record of appeal.
It was submitted that a plaintiff cannot be granted a declaration of title to land if he fails to identify the land in dispute or part thereof. We were referred to Tukuru v. Sabi (2003) 10 NWLR (Pt …) 442, Onwuka v. Ediala (1989) 1 NWLR (Pt 96) 182 and Babatola v. Aladejana (2001) 12 NWLR (Pt 728) 597.

On issue 3 learned counsel

for the Appellants adopted his arguments on issue 2.

It was further contended that the lower Court equated Exhibit P6 as an act of possession in favour of the Respondents but turned round to equate the evidence contained in Exhibits P3, P4, P7 and P8 to acts of denial of the Respondents’ title to the land which is a clear case of double standard on the part of the lower Court in order to favour the Respondents. The Court was urged to so hold and set aside the judgment.

The learned counsel for the Appellants further argued that the lower Court believed Exhibit P4 tendered by Respondents despite the fact that the exhibit does not relate to the land in dispute while it turned round to hold that exhibits P3, P4, p7 and p8 tendered by the Appellants are nothing but proof of denials of the ownership right of the Respondents.

It was submitted that the lower Court shifted the onus of proof on the Appellants who did not counterclaim.

The lower Court, it was submitted, nowhere affirmed that the Respondents were in possession of the land or even have anything on the land the same way the Appellants have proved that they have their house and tenants on

the land.

The Respondents raised a preliminary objection to issue 1 formulated by the Appellants contending that it was a fresh issue raised without the leave of this Court being sought and obtained. Secondly that Ground 7 of the amended notice of appeal is not connected with any controversy between the parties as the Respondents did not claim for forfeiture and the lower Court made no order for forfeiture.

It was submitted that the issue of the judgment being based on a non existent Court process titled 1st Further Amended Statement of Claim filed on 20th January 2014 with non-existent written statements on oath is a fresh issue being canvassed for the first time as it was not raised at the trial in the lower Court.

The law, it was submitted, is that an appellate Court cannot take a fresh issue without the leave of Court and determine same at the trial Court. We were referred to Inke v. Bank of the North Ltd (2003) FWLR (Pt 176) 648 at 664 G.

The issue of the non existence of the said 1st Further Amended Statement of Claim with non-existent written statements on oath does not arise from the printed record.

As no leave was sought and

obtained to raise the fresh issue the Court was urged to discountenance or strike out the said issue 1. We were referred to Usman v. State (2014) NWLR (Pt.746) 412 at 426, Jov v. Dom (1996) 9 NWLR (pt 620) 538 at 541.
No argument was advanced on Ground 7 said to be unconnected with any issue in controversy.
This leg of the objection was therefore abandoned and is hereby struck out.

Arguing the main appeal learned counsel for the Respondents submitted on issue 1 that the lower Court was right in holding that the case of the Respondents rested on an Amended Writ of Summons and 1st Further Amended Statement of Claim filed on 20th January, 2014. We were referred to the judgment of the lower Court at page 180 of the record of appeal and page 1-15 of the additional record of appeal containing the application for further amendment of the writ and statement of claim of the Respondents.

That the application dated and filed 10th January, 2014 was not opposed. It was granted on 13th January, 2014. We were referred to page 73 of the additional record of appeal. It was pointed out that though the said processes were wrongly dated 20th January

2013 which was a mistake of counsel the said amended writ of summons and the 1st Further Amended Statement of Claim showed that they were amended on 20th January, 2014 pursuant to the order of the lower Court made on 13th January, 2014. We were referred to page 16-24 of the additional record of appeal and page 119 – 127 of the record of appeal.

It was submitted that the processes titled “Amended Writ of Summons” and 1st Further Amended Statement of Claim” are existing processes which were validated by the order of the lower Court made on 13th January 2014. The judgment of the lower Court, it was submitted, was based on valid existing processes.

It was pointed out that the written statements on oath of the witnesses and other documents were frontloaded later in the proceedings because at the time the writ was taken out the High Court of Ondo State (Civil Procedure) Rules 2012 had not yet come into force.

If there was any irregularity in the instant case, it was submitted, the Appellants took several steps in the proceedings knowing fully well that there was non compliance with the Rules of Court and are therefore estoppel from raising any

objection on appeal. We were referred to Order 5 Rule 2(1) of the High Court of Ondo State (Civil Procedure) Rules 2012 and Kumaganam v. Kyari (2002) FWLR (Pt 126) 817 at 826.

On issue 2, it was submitted that in an action for declaration of title to land the onus is on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. In the discharge of this onus the claimant must rely on the strength of his own case, and not on the weakness of the defendant’s case. However a plaintiff is entitled to take advantage of any evidence adduced by the defence which tends to support his case. We were referred to Madubuonwu v. Nnalue (1999) 11 NWLR (Pt 628) 673 at 681.

It is the law, it was further submitted, that for a plaintiff to succeed in an action for declaration of title to land he must establish with certainty the identity of the land to which he lays claim. We were referred to Atanda v. Iliasu (2013) FWLR (Pt 681) 1469 at 1482. However, the burden of proof of identity of the land will not arise, it was submitted, when the identity of the land in dispute is not in issue.

The land in the instant, it

was submitted, is known by the parties. It was submitted that the Dw1 in his written statement on oath at page 92 of the record of appeal admitted the exact boundaries and location of the land in dispute as pleaded by the Respondents. That Dw2 and Dw3 also in their statements on oath at pages 101 and 104 respectively also admitted the boundaries as pleaded by the Respondents.

It was submitted that where the defendant disagrees with the description of the land in the statement of claim, he has a duty to make that an issue in the statement of defence by giving a description which he considers accurate but different from that given by the plaintiff. Where he fails to do so, it was submitted, he would be taken to be satisfied with the description given by the plaintiff. We were referred to Kopek Construction Limited v. Ekisola (2003) FWLR (Pt 139) 1448 at 1502.

The Appellants in the instant case, it was submitted, did not dispute the description of the land in dispute.
The Respondents, it was submitted, gave cogent evidence as to the identity of the land in issue.

Also the W4, it was submitted, under cross-examination confirmed the boundaries of

the land in dispute.

The lower Court, it was submitted, rightly held that no issue was made of the identity of the land in dispute.
The statement of the Pw3, it was submitted, was not given any consideration by the Court. We were referred to page 140 of the record of appeal.

It was submitted that long possession as the Appellants claim in this case does not vest title on them. We were referred to Tepsin v. Kyamwan (2003) FWLR (Pt 149) 1517 at 1524. Exhibits p3, p4, P7 and P8 were tendered by the Respondents as evidence of continued trespass it was submitted and not as evidence of possession.

It was submitted that the Appellants did not plead anywhere in the statement of defence that their great grandfather Adegbonmire farmed at Oke-Oko, the land in dispute.

It was submitted that since Adegbonmire through whom the Appellants are claiming possession and ownership never farmed at Oke-Oko, the land in dispute, they are trespassers. We were referred to the five ways by which title to land can be established as stated in Thompson v. Arowolo (2003) FWLR (Pt 315) 366 E-F and Akinrinola v. Akintewe (2003) FWLR (Pt 161) 1850.

It was

submitted that the fact that Sasere Adegbuji had during his lifetime allocated different portions of his land to his children or that he allocated and settled Egboro at Oke-Oko, the farm in dispute was neither contradicted nor debunked by the Appellants under crossexamination.

It was contended that the pleading and evidence of Pw1 and Pw2 that the land of the Appellants is at Alubere in Emure village and not at Oke-Oko Emure village was not controverted by the Appellants. Rather the Appellants admitted in their statement of defence and written statement on oath that they are not co-owners of the land the Respondents are occupying now.

The Appellants, it was submitted, did not plead joint ownership of Oke-Oko land with the Respondents.

On issue 3, it was submitted that the findings of the lower Court were well founded. That the totality of the evidence of PW1, Pw2 and Pw4 supports the case of the Respondents that Sasere Adegbuji had allocated land in Emure village to his children who settled in the respective portions allocated to them and that the part allocated to Egboro was known as Oke-Oko, the farmland in dispute.

We were referred to

the evidence of Dw2 at page 158 of the record of appeal where he said under cross-examination that it is where Sasere Adegbuji children were farming that they inherited at his death and their own children have remained in those places.

We were also referred to paragraphs 55 and 56 of the 1st Further Amended Statement of Claim which learned counsel for the Respondents argued was admitted by the Appellants through Dw1 in his statement on oath at page 98 of the record of appeal, Dw2 in paragraphs 5 and 6 of his written statement on oath at page 101 of the record of appeal and Dw3 in paragraphs 5 and 6 of his statement on oath at page 104 of the record of appeal.

Where a preliminary objection is raised in the respondents’ brief the objection ought to be argued at the oral hearing of the appeal and the Appellant must file a reply brief. Even where the Appellant does not file a reply brief, the Court ought to consider the preliminary objection on the merits. See the decisions of this Court in Kalagbor v. General Oil Ltd (2008) ALL FWLR (Pt 418) 303 at 315 and Nwankwo v. Ecumenical Dev. Co. Society (2002) 1 NWLR (Pt.749) 513.
A notice of preliminary

objection can be given in the respondents’ brief, but a party filing it in the brief must ask the Court leave to move the Notice, before the oral hearing of the appeal commences. Where he does not seek leave to move the notice of preliminary objection, it will be deemed abandoned. See Offorkire & Anor v. Maduike & 5 Ors (2003) 1 SCNJ 440 at 448 (2003) 5 NWLR (Pt 812) 166.
In the instant case the Appellants did not file a reply brief. In spite of this the Court ought to consider the preliminary objection on the merits.
But the Respondents’ counsel did not seek leave to move the notice of preliminary objection. It is therefore deemed abandoned and should be struck out. It is accordingly struck out.

An application to set aside any judgment or order shall not be allowed unless it is made within a reasonable time and before any party applying has taken any fresh step after becoming aware of the irregularity. See Order 5 Rule 2 (1) of the High Court of Ondo State (Civil Procedure) Rules 2012.

It is now settled law that it is not every non compliance or irregularity with the rules of Court that will nullify an entire proceeding. Non compliance

with rules of Court does not generally render the proceedings void. See Duke v. Akoabuyo L. G. (2005) 19 NWLR (Pt 959) 130.

If there was any irregularity in the 1st Further Amended Statement of Claim and other processes of the Respondents before the lower Court, the Appellants did not bring any application to set the proceedings aside but took various fresh steps in the proceedings by filing their own written statements on oath of defence witnesses and final written address of the defendants. They also cross-examined Respondents’ witnesses.

Having taken fresh steps and actions in the proceedings the Appellants will not be allowed to raise any objections on appeal on any alleged non-compliance with the rules moreso that no miscarriage of justice has been occasioned by the alleged non compliance.

Furthermore, the Respondents by motion on notice dated 10th January 2014 sought for leave to amend their writ of summons and further amend the statement of claim. The lower Court on 13th January 2014 granted the leave sought. The Respondents filed the amended writ and the 1st Further Amended Statement of Claim on 20th January 2014 and it was wrongly dated

20th January 2013, instead of 20th January 2014. The Appellants cannot be allowed to make a fuss of this slight error in dating the process.

In addition, at the time the trial of the case commenced at the lower Court, the matter had been begun based on the old rules of that Court which did not require that the writ of summons and statement of claim be accompanied by list of documents to be relied upon and written statements on oath of the witnesses. Therefore the Respondents rightly filed the written statements on oath of their witnesses as ordered by the Court. There is therefore no basis for the complaint of the
Appellants that the written statements on oath of the witnesses called by the Respondents were not frontloaded as required by Order 3 Rule 2(1)(c) of the Ondo State High Court (Civil Procedure) Rules 2012 which requires the frontloading of written statements on oath of witnesses when an action is begun by writ of summons.

It is clear from the foregoing that issue 1 should be resolved in favour of the Respondents and against the Appellants.
I accordingly resolved the said issue 1 in favour of the Respondents and against the

Appellants.

Issues 2 and 3 will be taken together.
Since the 8th day of October 1976 when the Supreme Court decided the case of Idundun & Ors v. Okumagba & Ors the Court have held that there are five ways of proving title to land. These are by a traditional evidence; production of documents of title duly authenticated in the sense that their due execution must be proved; by positive acts of ownership extending over a sufficient length of time; by acts of long possession and enjoyment of the land; by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition, be the owner of the land in dispute. It is the law that the establishment of one of the five ways is sufficient proof of ownership. See ldundun & Ors v. Okumagba & Ors (1976) 9-10 SC (Reprint) 140.

Where the plaintiff and the defendant anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the trial Court is to weigh their evidence on the imaginary scale and determine which evidence of the two is weightier. See Okolo v. Dakolo (2006)

14 NWLR (Pt 1000) 401.

Learned counsel for the Appellants contended that the lower Court believed the evidence of Pw3 who denied making any written statement on oath. This is far from the truth. See the judgment of the lower Court at page 191 of the record of appeal where the lower Court stated as follows:
“Pw3 is a person known as Adewole Adetula, He disowned his written statement on oath. His evidence is not useful to this trial. He was not crossed examined.”

It is therefore not true that the lower Court believed the Pw3 as learned counsel for the Appellants contended.

The learned counsel for the Appellants contended that the identity of the land was in dispute that even one of the Respondents under cross-examination said she could not describe the boundaries of the land. But learned counsel for respondents submitted that Dw1 and Dw2 agreed with the boundary of land under cross examination and referred the Court to pages 153 and 157 of the record of appeal. At page 153 of the record of appeal the Dw1 stated thus:
“I agree that the land in dispute is called Oke Oko. It is in Emure and bounded by:-
a) Filani Orimoloye’s land is

within our land.
b) Abusoro farmland is our boundary man
c) Peter Olomi farms within our land and is not our boundary man.
d) Ojomu Alade’s land is our boundary man.”

At page 157 of the record of appeal the Dw2 said under cross examination that “Abusoro community and Ojomu Alade family are boundary men to the land at Oke Oko.”

On the above evidence, the lower Court was right when at page 214 of the record of appeal, it observed that the defendants admit the description of the land in dispute. The lower Court was therefore right when it held that the identity of the land was not in issue.

The case of the Respondents as summarized by the lower Court at page 195-196 of the record of appeal is that the Respondents claim title to the land in dispute through Sasere Adegbuji who originally owned the land at Emure village. Sasere Adegbuji had inherited the Emure village from his mother Princess Adekorun. Sasere Adegbuji allocated the land in dispute to his son Egboro. Sasere allocated other parcels of land in Emure village to his other children. Egboro was the father of Oniya Egboro. Oniya Egboro was the father of two children Melaye and

Abike both females. The 1st and 2nd Respondents are children of Melaye and Abike respectively. It is the case of the Respondents that they have been in exclusive possession and use of the land in dispute.

The Respondents also say that one Adegbonmire was the son of Sasere Adegbuji who was given his own farmland at Alubere in Emure village in his life time. The Appellants are great grand children of Adegbomire. Their land is at Alubere in Emure village.

However, the case of the Appellants is that the entire land at Emure including the land in dispute known as Oke-Oko land is the exclusive property of Elusade, the wife of Sasere Adegbuji. The case of the Appellants is that Sasere Adegbuji did not have any land at Emure.
The Appellants case is that the Respondents are not related to Elusade and are not entitled to the land.

I have deliberately reproduced the summary of the cases for both parties as contained in the judgment of the lower Court as stated by the Respondents because it is the more credible as it is accepted even by the Appellants. See paragraph 60 of the statement of defence and paragraph 65 of the statement on oath of the Dw1 which was

adopted by Dw2 and Dw3.

As shown above the case of the Respondents is that the Appellants land is at Alubere in Emure. In paragraph 60 of the statement of defence and paragraph 65 of the statement on oath of the appellants’ witnesses they admitted that they have land also in Alubere in Emure. They cannot own land in Alubere in Emure village and also claim the land in Oke Oko in Emure village. They have not shown the basis for this.

The case of the Appellants was also unreliable because they did not plead joint ownership of the land in dispute having pleaded that the land belonged to Elusade and not sasere Adegbuji. However Dw1 under cross examination said “We claim joint ownership of the land at Oke-Oko.” See page 154 of the record of appeal.

The lower Court was therefore correct in my view when it found that the traditional evidence of the Respondents was more credible.
Issues 2 and 3 are therefore resolved in favour of the Respondents.

All three issues having been resolved in favour of the Respondents this appeal is dismissed by me.

Respondents are awarded N50,000 costs to be paid by the Appellants.

Other Citations: (2016)LCN/8956(CA)

Joseph A. Akinnawo V. Kayode Kuteyi (2016) LLJR-CA

Joseph A. Akinnawo V. Kayode Kuteyi (2016)

LawGlobal-Hub Lead Judgment Report

JAMES SHEHU ABIRIYI, J.C.A.

In the High Court of Ondo State sitting at Ondo, the Appellant/Applicant claimed against the Respondent a declaration that he is entitled to statutory right of occupancy, damages for trespass and injunction in respect of the land in dispute.

On 30th March, 1995 the lower Court dismissed the Appellant’s/Applicant’s claim in its entirety.

The Appellant/Applicant appealed to this Court by an initial notice of appeal dated 29th May 1995 but filed on 30th May 1995.

On the 11th April, 2014, the Appellant/Applicant filed an application seeking leave to file and argue additional grounds of appeal, leave to amend the notice of appeal by incorporating grounds 6 and 7 and amending ground 2 particular C, enlargement of time to file appellant’s brief of argument and an order deeming as properly filed the amended notice of appeal and appellant’s brief.

The application is brought on the ground of change of counsel and the time it took to retrieve the record of appeal served on former counsel
ii) Failure to forward to the registry of this Division, the record of appeal

and other documents related to the appeal from the Benin Division of this Court in good time. See particularly paragraph 12 of the affidavit in support of the application which reads thus:
?12 That the delay in filing the Appellant’s Brief of Argument timeously is occasioned by difficulties encountered by the registry of this Court in retrieving the records of appeal and all necessary documents pertaining to this appeal from the registry of the Court of Appeal, Benin.”

Annexed to the affidavit in support of the application are exhibits
A Notice of Appeal dated 29th May 1995 and filed 30th May 1995, Exhibit B Schedule of Additional Grounds of Appeal and Exhibit C Proposed Amended Notice of Appeal.

In the counter affidavit in opposition to the application the Respondent deposed to the fact that a similar application was filed on 1st March 2005 in the Benin Division of this Court but was struck out on 4th October 2007.

That as a result of the failure to prosecute the appeal diligently the land involved in this matter has been sold to third parties and partitioned among members of the respondent’s family.
?
Attached to the counter

affidavit are Exhibit A, a similar motion struck out on 4th October 2007 and Exhibit B a motion for stay of execution of the judgment of the lower Court.

The motion was contested on the following briefs of argument:
1. Appellant’s/Applicant’s Brief of Argument dated and filed 28th September 2015.
2. Respondent’s Written Reply Address dated and filed on 6th October 2015

The Appellant presented the following issue for determination:
l. Whether the Applicant made out a sufficient case for the grant of amendment of Notice of Appeal and extension of time to file Brief of Argument.

The Respondent on his own part also submitted the following lone issue for determination:
1. Whether considering the peculiar nature of this matter, the Honourable Court can exercise its discretionary power in favour of the applicant that would result in granting the application.

I prefer the issue formulated by the Appellant/Applicant.

Arguing the motion learned counsel for the appellant/applicant submitted that in an application of this nature, the Court is guided by consideration to do justice between the parties and to ensure, ultimately

that the dispute between the parties is decided on the merits.

It was submitted that the amendment sought is neither overreaching nor can it result to any injury to the respondent which cannot be remedied by costs as respondent’s brief is yet to be filed. The respondent can therefore react appropriately to any issue or complaint the amendment made may cause.

The notice of appeal sought to be amended, it was pointed out, is valid and subsisting. Therefore the Court can grant the amendment sought.

The Appellant/Applicant, it was pointed out, had filed his amended notice of appeal, brief of argument and paid a staggering penalty and has therefore shown good cause why the application should be granted. Therefore the Court cannot close its eyes to the Appellant/Applicant’s brief of argument already before it and it will not be judicious to chase the applicant away from the Court at this stage by dismissing the application. We were referred to Alsthom S. A. V. Saraki (2000) 14 NWLR (Pt 687) 415.
?
It was submitted that the fact that such an application had earlier been struck out will not preclude the applicant from re-filing the application all

over again and it should not be a ground for refusing to grant the application.

It was submitted that the application having not been shown to be defective in any manner, the prayers are grantable.

It was submitted that the injury deposed to by the respondent cannot be a ground for the refusal of the application as the injury and embarrassment envisaged by the law is quite different from the one declared by the respondent.

Learned counsel for the Respondent submitted that an application to amend at any stage made in bad faith would not be granted by a Court to avoid injustice to the opposing party. We were referred FBN PLC v. Kanu and Sons And Co Ltd (1999) 9 NWLR (Pt 619) 484 at 499.

It was submitted that the Appellant/Applicant failed to disclose that there was a similar application before the Court of Appeal, Benin and this shows bad faith

It was submitted that no proper disclosure was made of the difficulties encountered in retrieving the records and other documents from the Benin Division of this Court.

It is not the practice of the Court to lightly drive away a litigant from the temple of justice.
?
The

Appellant/Applicant has a valid notice of appeal before the Court as the notice of appeal sought to be amended was filed within time.

On the affidavit evidence before the Court there is no doubt that the Appellant/Applicant has been dilatory in pursuing the appeal. This by itself is not an excuse for not granting the application. This is moreso that the Appellant/Applicant has paid a penalty of N267,700 (two hundred and sixty seven thousand, seven hundred Naira) as shown on the face of the Appellant’s Brief of Argument.

I agree entirely with learned counsel for the Appellant/Applicant that the fact that the applicant earlier filed a similar application at the Benin Division of this Court which was struck out is not an excuse for dismissing this application particularly when the Appellant/Applicant has filed the amended notice of appeal and appellant’s brief.

As learned counsel for the Appellant/Applicant pointed out, the Respondent has not yet filed his respondent’s brief. Therefore if the application is granted the respondent will have the opportunity to react to the appellant’s brief.
?
The lone issue for determination is resolved in favour

of the Appellant/Applicant.

The application should therefore be granted.

The application is granted as prayed.
1. Appellant/Applicant is granted leave to file and argue additional grounds 6 and 7 of appeal
2. He is further granted leave to amend the notice of appeal and the grounds of appeal by:
(i) Incorporating the additional grounds 6 and 7 of appeal therein
(ii) Amending ground 2 particular C to read. “(c) The onus in this case is therefore on the Defendant who traced his title to the plaintiff to show that the plaintiff had divested himself of the interest in the land in dispute.”
3. An order is hereby made enlarging the time within which the Applicant may file the Appellant’s Brief of Argument.
4. The amended notice of appeal already filed on 11th April 2014 and the Appellant?s Brief of Argument dated 10th April 2014 and filed on 11th April, 2014 are deemed properly filed and served today.

Respondent is awarded N10,000 costs to be paid by the Appellant/Applicant.

Other Citations: (2016)LCN/8955(CA)

Eze Kalunta & Ors V. The State (2016) LLJR-CA

Eze Kalunta & Ors V. The State (2016)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE, J.C.A.

This is an Appeal against the Ruling of the Honourable Justice J.E. Adiele of the Abia State High Court sitting at the Uzuakali Judicial Division which Ruling was delivered on Thursday, the 24th day of October, 2013 refusing the Accused Persons/Applicants/Appellants??? Applications for:
(a) An Order quashing or setting aside the information of murder against the four Appellants (then Accused Persons/Applicants; and
(b) Such further Order or Orders as the Court may deem fit to make in the circumstances.

It would be recalled that the four Accused Persons/Applicants/Appellants were indicted and information to that effect dated 10th day of October, 2011 was filed on the 3rd day of November, 2011 alleging that the Four persons committed the offence of murdering Chief Ogbonna Ihueze contrary to Section 319(a) of the Criminal Code. Before and without taking their respective pleas upon arraignment, Chief Nnamdi D. Uchendu of Counsel filed four separate Applications by way of Motions on Notice respectively on the 2nd day of July, 2012 but dated the 25th day of

June, 2012.

In support of each of the Applications were Eleven(11) paragraphed Affidavits deposed to by each of the Accused/Applicants, a Written Address and the extra judicial Statements of the Witnesses as well as the Investigation Report from the Deputy Commissioner of Police, Zonal Criminal Investigation Department, Zone 9 Headquarters, Umuahia which Report is dated 31st August, 2010 and duly endorsed by Asst. Inspector General of Police Zonal Criminal Investigation Department Zone 9 Headquarters.

As can be gleaned from the Affidavits each of the Accused/Applicants deposed to the facts that:
1. They were the Accused/Applicants in the Application.
2. They had been shown the information wherein they were charged with the murder of one Ogbonna Ihueze.
3. For Ugoeze Iheoma A.Kalunta (2nd accused/Applicant) the 1st Accused H.R.H. Eze Dr. Ariwodo Kalunta was his late Husband who died and his remains was to be interred at a time to be decided by the members of her matrimonial family.
4. That they did not murder Ogbonna Ihueze or any person at all.
5. That on the 1st day of June, 2010; when Ogbonna Ihueze allegedly died and his

remains found in a raven/pit, they were in their respective houses and respective villages.
6. That they never sent or arranged with any person to murder Ogbonna Ihueze.
7. That when the incident occurred, the Prosecution Witnesses made Statements to the Police at the Divisional Police Headquarters, Bende, to the effect that they did not know who murdered Ogbonna Ihueze or whether he was murdered. Copies of the Statements were Exhibited and marked Exhibit ???A???.
8. That the Police Officers found no merit in the allegation of murder against them and accordingly admitted them to bail.
9. That in his Investigation Report to the Assistant Inspector General of Police in-charge of Zone 9 Police Headquarters, Umuahia, Mr. John E. Achuam, in-charge of Zonal Criminal Investigation Department, stated that there was no ground on which to sustain our prosecution for murder.
10. That they had read the Statements made by the Prosecution Witnesses and they were informed and verily believed, that they do not contain/disclose any prima-facie case against them.
11. That they made the Affidavits bonafides and in accordance with the Oaths

Act, Laws of the Federation, 2004.

A perusal of the Affidavits of the 2nd, 3rd and 4th Accused/Applicants/Appellants would reveal that whereas the 2nd Appellant was the wife of the 1st Accused His Royal Highness, Eze/Dr. Ariwodo Kalunta the 3rd Appellant was the Traditional Prime Minister to the deceased 1st Accused while the 4th Appellant was a junior brother to the deceased 1st Accused.

Upon being served with the originating processes, the Respondent through Tolu Omotehinse (then a Pupil state Counsel in the Department of Public prosecutions) swore to Counter-Affidavits on the 8th day of May, 2013 against the grant of the Applications. The grounds upon which the Respondents objection was anchored were as follows:
???1. That she was conversant with the facts of the case.
2. That she had the consent of the Respondent to swear to the Counter-Affidavit.
3. That paragraphs 4 ??? 10 of the respective Accused/Applicants were false.
4. That by the statement of Chinedu Ogbonna, there was prima facie case of conspiracy and murder of Chief Ogbonna Ihueze against the Applicants.
5. That the information sought to be quashed by

the Applicants had no procedural error or formal defect.

Also accompanying the Counter-Affidavits were Written Addresses of Counsel to the Respondent. On the 16th day of July, 2013 the Written Addresses in support and against the motions were adopted after which the motion was adjourned for Ruling. In his Ruling delivered on the 24th day of October, 2013, the Learned Trial Judge at pages 117/5 to 118/6 of the Records/Ruling held as follows:
???This application was based on the affidavit evidence of the Applicants that they did not commit the offence. That the prosecution witnesses said that they did not commit the offence. That the prosecution witnesses said that do not know who murdered the said Chief Ogbonna Ihueze and further that the Asst. Inspector General of Police in-charge of Zone 9, Police Headquarters, Umuahia and in-charge Zonal Criminal Investigations Department stated that there was no ground on which to sustain the prosecution for murder.
The above notwithstanding, I hold that it is rather premature, when the Accused Applicants have not taken their pleas and hearing commenced for the Accused Applicants to talk about the case of

the prosecution not raising a prima facie. It is neater and much better if the Accused/Applicants had taken their pleas and hearing commenced before raising the issue of lack of prima facie case. The picture then or the coast would have been made clearer for one to consider the submission of no case than at this stage.
The decision of the Supreme Court in the case of Abacha V. State (supra) relied upon by the Learned DPP that any information charging an indictment and without a procedural formal defect cannot be quashed, becomes quite helpful at this stage of this application. I find support in the above decision of the Supreme Court to hold that I have no procedural or formal defect in the information indicting the Accused/Applicants. And it accords more with the justice of the matter if the Accused applicants will take their plea, proceed to trial and raise issue of no case or lack of prima facts latter than at this stage.
Based on the above, this Application is dismissed. The Applicants are hereby ordered to attend Court and answer to the information filed against them.???

???The case was subsequently adjourned to 27/11/2013 for plea but

rather than submit themselves for the plea and hearing of the charge, the Accused persons who hence forth shall be referred to as Appellants gave Notice of Appeal with a Sole Ground dated and filed on the 7th of November, 2011 in the following terms:
???GROUND 1:
That the Learned Trial Judge erred in law when she dismissed the Application to quash the charge because such on Application can only be taken by way of a no-case submission at the conclusion of the prosecution???s case.
PARTICULARS OF ERROR
(a) The Learned Trial Judge did not consider the Application to quash the information of murder against the Appellants on the merits.
(b) The Learned Trial Judge confused an Application for an order to quash information which does not disclose a prima facie case with a no-case submission normally made at the conclusion of prosecution???s case.
???RELIEFS SOUGHT
An Order reversing the Ruling of the Learned Trial Judge and substituting therefore an order quashing the information of murder preferred against the Appellants.???

???Following the transmission of the Record of Appeal from the Lower Court hereto, the

Learned Counsel for the parties filed their respective parties??? Briefs of Argument.

The Appellants??? Brief dated the 15th day of January, 2014 but filed on 17th January, 2014 as settled by Chief Nnamdi D. Uchendu for the Appellants, and a Sole Issue for determination was distilled from the Ground of Appeal as reproduced below.
???Whether The applications For An Order To Quash The Information Of Murder Against The Appellants Which Discloses No Prima Facie Case Against The Appellants Are Premature And Untenable In Law Save the Appellants Wait For The Conclusion Of Prosecution???s Case And Thereafter Make Submissions of No Case?

On the part of the Respondent, A.U. Onukwube Esq, the Director of Public Prosecutions, Ministry of Justice, Umuahia, Abia State who settled the Respondent???s Brief also formulated a single Issue which is: ???WHETHER THE TRIAL COURT RIGHTLY DISMISSED THE APPLICATION TO QUASH THE INFORMATION AGAINST THE APPELLANTS????

???Before delving into the arguments of the respective Learned Counsel it is only apt at this juncture to reflect on the facts of the case as stated by the Learned Counsel for

the parties in their respective Briefs of Argument.

The case of the Appellant is that an information of murder was preferred against the Appellants before the High Court of Abia State Holden at Uzuakoli, before the Hon. Justice J. E. Adiele after the murder allegation was investigated at different Police Stations in Abia State culminating in the investigation carried out by the Police Officers attached to Zone 9 Police Headquarters, Umuahia. At each of the Police Stations, according to the Appellants, each of the Appellants was given a clean bill of health as the investigation showed that the Appellants knew nothing about the murder of Ogbonna Ihueze whose corpse was found according to some of the witnesses whose extra-judicial statements featured in the proof of evidence, in either a pit or stream.

For reasons which according to the Learned Counsel to the Appellants, are far to seek, the Learned Attorney-General and Commissioner for Justice, Abia State insisted that the Appellants be prosecuted for the offence of murder they did not commit hence an information was preferred against the Appellants.

???The Appellants through their respective

Learned Counsel filed their Applications praying the Court to quash the Information on the ground that it did not disclose a prima facie case as had earlier been stated, thus culminating in the Ruling and the Appeal herein.

As for the case of the Respondent, the Learned D.P.P. disclosed that in the Information are the Statements of the victim???s son, marry other witnesses and the Police Report, wherein they all stated that the Deceased, Ogbonna Ihueze, the Village Head of Umuorie Village in Bende Local Government Area of Abia State, was murdered and thrown into a stream-like pit, where he was found on 2/6/2010.

According to the Prosecution, there is a medical Report from Abia State University Teaching Hospital stating that the Deceased was strangulated (Exhibits at page 110 of the Records and the 10th Finding of the Police in their Report at P. 83 of the Records refer). We were also referred to pages 32 ??? 41 of the Records where the son of the Deceased, Chinedu Ogbonna, whose statements are therein contained disclosed that on the day Deceased was killed, being 1/6/2010 at about 8.pm, he saw Deceased with the 2nd Appellant, Chief Simeon

Udensi and the Deceased informed him that they were going to the house of the 1st Accused (now deceased) Eze Ariwodo Kalunta, their traditional Ruler and also the husband of the 1st Appellant, Ugoeze Ihuoma Kalunta. When he (the Deceased???s son) came back from his night guard work the next day, being 2/6/2010 and was informed by his mother that the Deceased did not return to the house since he left it the previous day, he went straight to the house of the 2nd Appellant, who was the last person he saw with the Deceased, to ask for his father but the 2nd Appellant retorted: ???Am I your father???s keeper???? and did not give him any reasonable answer.

The said Chinedu also stated that after the body of the deceased was discovered, he went to the house of the 1st Accused to inform the 1st Accused about the death of his father, but on entering the house, he saw the 1st Accused, 1st Appellant, and 3rd Appellant, who covered their faces with face cap, and he overheard the 1st Appellant, saying that the men will not be paid since they did not deposit the body of Ogbonna the stupid Village Head where they were instructed to deposit it. Where upon,

the 3rd Appellant counseled that since the men did the job they should be paid. The said son of the Deceased was also said to have seen the Deceased???s shirt and slippers inside the 1st Accused???s room and thereafter, the 3rd Appellant came out from the room and on seeing him went back into the room and informed the 1st Accused that he (the witness) was in the house.

The 1st Accused came out and asked the witness how long he had been in the house and if he overheard their conversation and the witness replied that he had just come and did not overhear their conversation. The witness then informed the 1st accused about the murder of his father and the dumping the body in a pit and the 1st Accused instructed that the witness deposit the body in the mortuary and not to report the matter to the police because if a child seeks to find out what killed his father, what killed the father will kill him (the son). The witness therefore left and deposited the body of the Deceased in the mortuary.

???Our attention was also been drawn to page 50 of the Records where the Statement of Paulina Ogbonna, the wife of the Deceased confirmed that her son, Chinedu,

informed her on the 2nd day of June, 2010, while they were wondering why the deceased did not return home the previous night that Chinedu saw the Deceased with the 2nd Appellant and the Deceased told him that they were going to the place of the 1st Accused to discuss the Communities Electricity problem.

We were also referred to page 65 of the Records (the statement of Isaiah Samuel Adile) who confirmed that on 2/6/2010, by afternoon time, he was fetching water opposite the house of the 1st Accused when he saw Chinedu, the son of the Deceased going to the house of 1st Accusd and he spoke with him and thereafter Chinedu entered the house of the 1st Accused, while he, himself fetched the water and left.

Reference was also made by the Learned D.P.P to the Statement of Ekeke Enyi (Elder) who also said that on the day in question, when the Deceased was murdered at about 8.p.m, he saw the Deceased going to the palace with the 2nd Appellant.

???Further reference was also made to pages 66 ??? 69 of the Records which is the Statement of Richard Chibueze Iwueze, who said that he was among those who went to the scene of crime and saw the corpse of the

deceased, that the Deceased had no shirt on but only his trousers, that no road led to the pit where the Deceased was found, so he must have been thrown into the pit by his killers. The said Iwueze was also quoted to have stated that when they went to the 1st Accused to decide what to do about the murder of the Deceased, the 1st Accused said that the Police must not be invited but agreed that his death should be investigated the traditional way. People then contributed money and consulted a shrine at Uruala, Imo State and the 1st Accused, the three Appellants, one Ogunka Nwokoro and one Kalu Iroha appeared in the mirror as those who murdered the Deceased. The witness also confirmed that Chinedu confided in him that he saw his father???s shirt and pair of slippers in the house of the 1st Accused. All these pieces of evidence according to Learned DPP, though circumstantial, clearly linked the Appellants with the death of the Deceased and that informed the Appellants being charged.
ARGUMENTS OF LEARNED COUNSEL ON THEIR RESPECTIVE ISSUES: ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANTS: ???WHETHER THE APPLICATIONS FOR AN ORDER TO QUASH THE

INFORMATION OF MURDER AGAINST THE APPELLANTS WHICH DISCLOSES NO PRIMA FACIE CASE AGAINST THE APPELLANTS ARE PREMATURE AND UNTENABLE IN LAW SAVE THE APPELLANTS WAIT FOR THE CONCLUSION OF PROSECUTIONS CASE AND THEREAFTER MAKE SUBMISSIONS OF NO CASE????

???Arguing the Sole Issue, the Learned Counsel for the Appellants pointed out that our administration of Justice is accusatorial and not inquisitorial in which case it is not the function of the Court to carry out an investigation no matter the temptation so to do . For this submission he relied on Duriminiya V. C.O.P (1962) NWLR 70 Per Bate, J; A.C.N. V. Nyako (2013) ALL F.W.L.R. (Pt. 686) 424 at 464 paras. A ??? C; where the Court quoted with approval the dictum of Mohammed, JSC in A.C.N. V. Lamido (2012) ALL FWLR (Pt. 630) 560; to submit that in this case, he High Court of Abia State Holding at Uzuakoli is not clothed with the constitutional or statutory power to investigate the allegation that that the Appellants murdered Ogbonna Ihueze but that such power lies in the Police and that have so done and found the Appellants not blameworthy, the Court, with respect, is obliged to hold that there is no

prima facie case on the basis of which the Appellants may be prosecuted.

On the above score we were referred to the finding of the Court below at page 117 of the Records which according to the Learned Counsel does not represent the position of the law. He also questioned the holding of the Learned Trial Judge to the effect that where there is no procedural or formal defect in a charge, it cannot be quashed as also not being the law. Abacha V. The State (2002) 100 LRCN 1588 also relied upon by the Court below in support of the holding was also pilloried as being strange and tenuous .

He then referred to the same authority at page 1602 of the Report per Belgore, JSC (as he then was) where the argument for the prosecution was also as held by the Learned Trial Judge that the Accused/Appellant ought to wait until the close of the prosecution???s case before applying for the charge to be quashed upon a No case submission and the Supreme Court disagreed and held the contrary.

The Learned Counsel for the Appellants also relied on Okoli V. The State ( 1992) 6 NWLR (Pt. 247) 381 and Ajidagba V. I.G.P. (1958) SCNLR 60; to urge us to resolve the Issue

in favour of the Appellants and allow each of the Appellant???s Appeal in that from the extrajudicial statements of witnesses to the Police and the Police Reports of Investigation from the Divisional Police Headquarters, Umuahia, no prima facie case has been made for the prosecution of the Appellants.

The Law, he maintained, is not that whether or not there are formal defects in a charge, but that once there is no prima-facie case distillable from the proofs of evidence, the charge is liable to be quashed, or set aside so that an accrued person is not subjected to the ordeal of trial he ought not to be subjected to. He then finally submitted that the Learned Trial Judge did not properly direct herself as to the proper position of the law in this case.

ARGUMENT OF THE LEARNED DIRECTOR OF PUBLIC PROSECUTIONS FOR THE RESPONDENT: ???WHETHER THE TRIAL JUDGE/COURT RIGHTLY DISMISSED THE APPLICATION TO QUASH THE INFORMATION AGAINST THE APPELLANTS????

???In response to the argument of the Learned Counsel for the Appellants and the question posed by his (Learned Counsel for the Respondent???s) issue, the Learned D.P.P argued in the first

place that the Court below rightly dismissed the Applications of the Appellants to quash the information filed against them for the murder of Ogbonna Ihueze and that Learned Trial Judge also considered the Applications on their merits since the Appellants were afforded the opportunity to be heard on the issue raised in their Applications to which the Respondent also replied.

He contended that a consideration of the totality of the Ruling of the Learned trial Judge, will show that he reached his decision after a consideration of all the materials placed before him and relying on the Supreme Court of case Abacha V. The State (2002) 11 NWLR (Pt. 779) 437 at 502 para. A accepted the argument of the Respondent that there is enough evidence linking the Appellants to the death of the Deceased that justified their being charged for his murder.

Placing reliance on the case of Ekwunugo V. F.R.N (2008) 15 N.W.L.R (Pt. IIII) 630 at 639 ??? 640 paras. H ??? B, the Learned Director contended that the grouse of the Appellants seems to be the refusal of the Learned Trial Judge to commence on an elaborate voyage of discovery and extensive consideration of

whether there was a disclosure or none disclosure of prima facie case. The Learned Counsel for the Respondent however, opined that even in a Ruling on a No case submission which is far more advanced than an Application of the nature now on Appeal, the Supreme Court has admonished Courts to be brief as possible without going to the evaluation of evidence which follows that by the nature of Applications before us, a Ruling on them ought even to be briefer.

At that juncture, he commended the case of Nyame V. F.R.N. (2010) 7 NWLR (Pt. 1193) 344 at 392 paras. B ??? G, to us where the Supreme Court refused to interfere with the discretion of the Lower Court to delve into the issue of disclosure or non-disclosure of prima facie case since there were sufficient materials with which the Court acted and came to the conclusion that there was prima facie case against the Appellant. From the afore stated decision, we were urged to look at the materials placed before the Learned Trial Judge as marshaled out in the Respondent???s Brief which the Court must have taken into consideration in refusing to quash the information against the Appellants. Citing again

Ajiboye V. The State (1995) 8 NWLR (Pt. 414) 408 at 418, the Learned Director insisted that because at the stage the Application was brought, the witnesses had not been called for cross-examination it cannot be safely argued that the witnesses statements contradicted each other or being believed or disbelieved as the quality of the evidence upon which the prosecution can base his decision to a charge a case to Court is not as high as that of establishing a prima facie case as defined in many cases particularly the cases cited.

On the principles guiding the grant of a motion to quash information we were further referred to Nyame V. F.R.N. (spra) at pages 420 0 421 paras. G ??? E; in submitting that against the 1st and 3rd Appellants, Ugoeze Kalunta and Chief Ekpe Kalunta, there is the claim of the Deceased???s son that he overhead them discussing whether or not those that killed his father should be paid for failing to deposit the corpse of the Deceased where they instructed them to so do and that he saw his father???s shirt and pair of slippers in the room the Appellants were having discussion. Against the 2nd Appellant, he further observed,

was also the claim of the said Chinedu (Deceased???s son) and one Elder Ekeke Enyi, that he (2nd Appellant) was last seen with the Deceased going to the palace of the deceased 1st Accused before the Deceased was found murdered.

From the foregoing, the Learned Director asserted that those claims and others sufficiently linked the Appellants with the murder of Ogbonna Ihueze and thereby justified the Appellants being charged for murder and we were therefore urged to so hold.

In conclusion, he maintained that the trial Court adequately considered the issue in question and the sufficient materials on which it came to the conclusion that a prima facie case existed to support the criminal charge against the Appellants. We were accordingly urged to dismiss the Appeal for lacking in merit.

RESOLUTION OF SOLE ISSUES OF THE RESPECTIVE LEARNED COUNSEL FOR THE PARTIES TOGETHER.
In the resolution of these issues, I must remark that the Learned Counsel for the Appellants did not mention any of the Sections of the Criminal Procedure Act or Law upon which he predicated the Applications to quash the information of murder against the Appellants. However,

I must not fail to refer in the first place to provisions of Section 167 of CPA (Criminal Procedure Act or Law) of Abia State which is to the effect that:
???167. Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read.???

Section 168 on the other hand provides that no judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the Accused or during the progress of the trial might have been amended as such objection would have been cured by the verdict of the Court.

Section 215 of the Criminal Procedure Law on the other hand, provides for pleading to indictment on information or charge and ordinarily the charge or information shall be read over to them (the Accused persons/Appellants) and same explained to their understanding or satisfaction of the Court and such Accused persons should have been called upon to plead instantly to the charge or information unless they objected to plead for want of service of the information or charge or any other ground.

Section 221(1) of the Act or Law makes for the special

pleas of autrefois acquit or convict which procedure in legal parlance is also styled special plea at the Bar. By this procedure, where an Accused is arraigned he may plead that he had been previously convicted or acquitted or that he had been pardoned on the same offence. But the subsection that is of relevance as far as this Appeal is concerned is Section 221(4) which stipulates that:
???(4) Nothing in this Section shall prevent a person from pleading that by virtue of some other provision of law he is not liable to be prosecuted or tried for any offence with which he is charged???. See Edu V. Police (1952) WACA 163.

Above all, Section 340 of the Act which governs Procedure for Information of Offenders ??? Provisions antecedent to preferring information and information liable to be quashed states as follows:
???340(1) Subject to the provision of this Section an information charging any person with indictable offence may be preferred by any person before the High Court charging any person with an indictable offence for which that person may lawfully be indicted, and wherever an information has been so preferred the Registrar shall,

if he is satisfied that the requirements of the next following Section have been complied with, file the information and it shall there upon be proceeded with accordingly; provided that if the Registrar shall refuse to file the information, a Judge, if satisfied that the said requirements have been complied with, may, on application of the prosecutor or on his own motion, direct the Registrar to file the information and it shall be filed accordingly.
(2) Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless either ???
(a) the person charged has been committed for trial; or
(b) the information is preferred by the direction or with the consent of a Judge or pursuant to an order made under Part 31 to prosecute the person charged with perjury:
Provided that-
(i) Where the person charged has been committed for trial, the information against him may include, either in substitution for or in addition to the Courts for charging the offence for which he was committed, any Courts founded on facts or evidence disclosed in any examination or deposition taken before a Magistrate

in his presence, being counts which may lawfully be joined in the same information;
(ii) A charge of a previous conviction of an offence or of being a habitual criminal or of being an habitual drunkard may notwithstanding that it was not included in the committal or in any such direction or consent as aforesaid, be included in the information.
(3) If an information preferred otherwise than in accordance with the provisions of the last foregoing subsection has been filed by the Registrar, the information shall be liable to be quashed: Provided that-
(a) if the information contains several counts, and the said provisions have been complied with as respects one or more of them, those counts only that were wrongly included shall be quashed under this Section; and
(b) where a person who has been committed for trial is convicted on any information or on any count of an information, that information or count shall not be quashed under this Section in any proceedings on appeal, unless application was made at the trial that it should be so quashed.???

The above provisions are quite elaborate but one is at a loss under which of the

subsections the Appellants brought their applications to quash the indictment or the information as the Learned Trial Judge rightly observed in his Ruling at page 117 of the Records that following Abacha V. The State relied upon by the D.P.P., that any information charging an indictment and without a procedural or formal defect cannot be quashed.

Considering the positions of Sections 166, 167 and 168 read together with Section 340 of Criminal Procedure Law/Act, it would appear that objections can only be raised for any formal defects on the face of charge immediately after the charge had been read to the Accused.

However, in the course of brousing through judicial texts, I was privileged to come across ???The Criminal Procedure of the Southern States of Nigeria, 2nd Edition by Fidelis Nwadialo, SAN at pages 191 ??? 192 where under the heading ???Objections and other possible pleas at Bar??? the Learned Author remarked as follows:-
???The pleas discussed earlier (autrefois acquit and autrefoi convict) are not the only ones provided for by the Criminal Procedure Act. It has, however been suggested that before pleading not

guilty to a charge or information and as an alternative to raising the point on the general issue, the Accused may either move to quash the charge or information for any defect or want of jurisdiction or put forward a plea in the nature of demurrer raising an issue as to the Constitutional validity of the written law creating the offence with which he is charged. Such preliminary objection may be made under the English Common Law.??? See further Archbolds Criminal Pleadings, Evidence and Practice paras. 231 and 430; Brett and Malean: CRIMINAL LAW AND PROCEDURE OF LAGOS, EASTERN NIGERIA AND WESTERN NIGERIA (SWEET & MAXWELL EDITION 1963) at page 396: and Practical Approach to CriminalÂ LitigationÂ inÂ NigeriaÂ (Third Edition, 2015) byÂ J.A. Agaba at page 66 -2-663 paras. 14.4 and 14.5 where the Learned Author noted that:
???One possible reaction from the Accused upon arraignment may be a preliminary objection challenging the jurisdiction of the Court to either try him or to try the offence charged. Because jurisdiction is the foundation of adjudication, once it is raised, the Court must entertain the Application and determine the Application one way

or the other. This is because if the Court has no jurisdiction, whatever it does amounts to a nullity including any defect. Madukolu V. Nkemdilim [1962] SCNLR 341. (para. 14.4).
???In Paragraph 14.5 he continued, that apart from objection on the ground of lack of jurisdiction, the Accused person may also raise objection to the defect in a charge where the charge suffers from any defect in the rules of drafting charges. Some defects, according to him are material such that a conviction based on it cannot stand while others are regarded as mere irregularity. Thus, where a defect is material, then it is incumbent on the Accused to raise an objection to such charge and the right time to raise such objection is at soon as the charge is read and before his plea is taken. Sections 167 and 168 of the CPA which I had earlier reproduced were cited by the Learned Author as well as Section 206 CPC, Section 158 ACJL and Section 220 ACJL in buttressing his stance on the above provisions and in asserting that:
???Where an Accused person or his Counsel fails to object to a defect in a charge, he cannot raise that objection later in the trial or on Appeal as

pleading to a charge is submission to the jurisdiction of the Court. Obakpolor v. State (1991) 1 NWLR (pt. 165) 113 refers. If the objection of the Accused is sustained, the Court may discharge him or the Court may upon Application in appropriate cases, suo motu amend the defective charge and the trial of the Accused may commence.???

It is against the foregoing background that we shall consider the merits of the Application nay the Ruling of the Learned Trial Judge thereon. As we said earlier since the Application was not predicated on any defect in the information preferred against the Appellant, we shall decide this case on the Affidavits and Counter-Affidavits of the parties, the Legal Authorities cited by the respective Learned Counsel as well as the documentary Exhibits annexed to the Appellants??? Application since the ground for the Application in the Lower Court was that the Statements of the prosecution witnesses do not disclose any prima facie case and here on Appeal that the Learned Trial Judge did not consider the Applications to quash the information of murder against the Appellants on their merits.

???Now, a look at pages 14 and 15

of the Records (the Affidavit of the 4th Accused/Applicant/Appellant Chief Ekpe Kalunta) would reveal that he averred in paragraphs 7 ??? 10 thereof after denying like his co-Accused persons that they did kil the Deceased Ogbonna Ihueze, as follows:
???7. That when the incident occurred, the prosecution witnesses made statement to the Police at Divisional Police Headquaters, Bende, to the effect that they did not know who murdered Ogbonna Ihueze or whether he was murdered. Copies of the Statements are exhibited hereto as Exhibit ???A???.
???8. That the Police Officers found no merit in the allegation of murder against me and others and admitted us to bail.
???9. That in his Investigation Report to the Assistant Inspector-General of Police in-charge of Zone 9 Police Headquarters, Umuahia, Mr. John Achuan, in-charge of Zonal Criminal Investigation Department, stated that there was no ground on which to sustain our prosecution for murder.
???10. That I have read the Statements made by the Prosecution Witnesses and I am informed by my Counsel and I verily believe him that they do not disclose any prima-facie case

against me.???

All these averments run through the Affidavits of all the Appellants (now 2nd ??? 4th). I have also had a careful perusal of the Supplementary Records of Appeal filed on the 17th of January, 2014 which contain the statements of SP (Superintendent of Police AJAMEKWE ANDREW) of the Divisional Police Head quarters, Bende which is the immediate Division where the murder allegedly occurred as well that of Corporal Ajayi Kayode of the Bende Police Station and the following are their findings:
1. For S.P. Ajamekwe Andrew, his Report discloses that; He was the Divisional Police Officer for Bende who made it mandatory to visit their men posted on duty every night and to patrol the whole Town with his men every night. In the course of visiting the Stations he picked one or more personnel for that night patrol and that every person within the Division knew that they patrol the town every night. According to him;
???On the 1st June 2010, I got to the station picked up one CPL 390728 PC Sunday Idris to go for patrol with me. Two of us armed. As we go to the first village Okpotung they were on duty at alert. I picked up one Mr.

Okechukwu Offor to move with us. Three of us went to Umuakor Village where we met people on duty on alert as there was wake keeping of one Catherine Kalu. There we met a bee-hive of activities where some people were cooking and some were digging grave. We patrolled there for a long time and left for a nearby beat at Agbamuzu. The beat at Agbamuzu and Umuokoro are so close about two poles while the house of late Catherine Kalu is in between them. Agbamuzu people normally block the road and that night they blocked the road as usual. It is at that road block we got one drunkard man riding tricycle (Keke NAPEP)—————————————————————————————————————————
No Offender passes there in the night without being challenged. No group of people would pass the two nearby beats to that place of wake keep without being seen by those people on duty that night in question IF FOUL PLAY WAS SUSPECTED ONE OF THE CHILDREN WOULD HAVE COME TO THE POLICE STATION TO REPORT WITHIN THAT PERIOD THE MAN DIED. I WAS AMONG THOSE WHO WENT TO WHERE THE MAN FELL INTO AND I OBSERVED THAT HE WAS NOT KILLED AND

THROWN INTO THAT PLACE AS ALLEDGED. ANY PERSON WHO FORMULATED THIS STORY DOES NOT FEAR GOD. HE IS ONLY BRINGING UNTOLD HARDSHIP TO INNOCENT PEOPLE.???

As for Corporal Ajayi Kayode who was the Investigating Police Officer, immediately the matter was referred to him for investigation, he left the company of the D.P.O. and D.C.O. (Divisional Police Officer and Divisional Crime Officer), to the scene of crime. According to him, the house of the Deceased was visited and the family members invited to the Police station for their statements. Times without number he paid visits to the wife and children of the deceased to come and make statements but all efforts to bring them to the station proved abortive. On the 7th day of June, 2010, two persons were able to come to the Police Station to make statements.

At the conclusion of his investigation the Investigating Police Officer came out with this ridiculous and unfortunate finding:
???WITH THE LOOK OF THINGS IT SEEMS THERE IS A MISUNDERSTANDING BETWEEN THE DECEASED AND THE WIFE WHICH RESULTED THAT THE WIFE WAS NOT TOUCHED BY HIS HUSBAND???S DEATH. THE PETITIONER REFUSED TO COME AND MAKE

STATEMENT AND NONE OF THE FAMILY MEMBERS AGREED TO REPORT THE MATTER TO THE POLICE. MEANWHILE, PHOTOGRAPHS OF THE SCENE OF CRIME WAS TAKEN SINCE THE CORPSE HAS BEEN REMOVED WITHOUT REPORTING THE MATTER TO THE POLICE THAT IS ALL MY STATEMENT.???

From the Investigation Reports of the Divisional Police Officer and the Investigation Police Officer as recorded and reproduced above, it is clear that at the Divisional Police Headquarters Level, the Accused persons/Applicants/Appellants were given a clean bill of innocence of the death of the Deceased Ogbonna Ihueze.

However, the Statement of Chinedu Ogbonna Ihueze (the Deceased???s son) ought to have jotted every reasonable person to discern that there are more things than meet the eyes from the above Investigation Reports. The Learned Counsel for the Appellants was therefore most uncharitable to have described the statement of Chinedu as cock and bull story on what he heard upon eavesdropping on the Appellants as they discussed in the house of the 1st Accused and 2nd Appellant and his seeing his father???s slippers and shirt in the house of the said 1st Accused and 2nd Appellant???s

house.

From the facts of the case as stated by the Learned Director of Public Prosecution which I had reproduced earlier in this Judgment, there are some posers which ought to be tried and at least some explanations demanded from the Accused persons/Applicants/Appellants notwithstanding the clean bills of innocence given to the Appellants by the Bende Divisional Police Headquarters if the statement of Chinedu Ogbonna is anything to go by. In the first place, at pages 36 ??? 37 of the Records, the said Chinedu had stated that he had met his father and the 3rd Appellant Chief Simeon Udensi on the fateful day standing by the road side as he (Witness) was going to deliver the drugs he bought for his father who complained of feeling cold.

When he demanded to know where his father was going to, the Deceased informed him that they were going to see the 1st Accused to discuss the Community???s Electricity problem and when the witness asked the Deceased whether it was not late as it was about 8.00 pm, the 3rd Appellant retorted: ???Ogbonna come let???s go. This your son askes too many questions???.

???Thereafter, the witness left for his

shop. Subsequently, when he returned from the shop to prepare for his night-guard work, as his mother asked after his father, he explained how he met his father in company of the 3rd Appellant going to the 1st Accused???s palace to discuss electricity. He left for work and upon return the following day, his mother informed him that he had not seen his Deceased father. When subsequently the witness went to the 3rd Appellant to ask the where about of his father because he (the father) was last seen with the 3rd Appellant, the said 3rd Appellant whom the witness met on the way, greeted and so asked about his father, but 3rd Appellant replied and asked whether he (the 3rd Appellant) was his father???s keeper and directed the witness to go and look for his father.

???The witness then left for the house of his uncle Chief Richard Chibueze to inquire but he said his father did not come to his house. Thereafter, he left to the Eze???s Palace (1st Accused) to inform him of the development and along the road he met Ekpe Kalunta (the 4th Appellant) along with Paulinius Iloh Kalunta whom he broke the news to and who said that he (witness) should not raise

the issue so as not to disrupt the burial of Catherin Kalunta. After informing his mother that the person who died near the funeralplace was his father, his said mother shouted and directed that he should go and report to the Eze and on his way to the Eze???s Palace, he met one Isaiah Adiele who was fetching water at a borehole opposite the Palace and who asked him (the witness) why he was running and what happened, he explained to him (Isaiah Adiele).

On getting to the Eze???s Palace gate the gateman saw him and asked him(witness) what happened and he explained that his father was found dead in a pit and the gateman shouted and said that the Eze was with some people. He was however ushered into the Palace in order to wait for the 1st Accused .

According to the witness as he entered passing through the first building to the second building called ???Gracia Hall???, he overheard the 2nd Appellant/Eze???s wife (Ugoeze Kalunta) saying to three men with her who had their faces covered with face caps that they will not be paid fully because: ???where they asked to depose the body of Ogbonna, a stupid man that called himself

Village Head is not where they disposed it. Ekpe Kalunta now said that they should be paid since they had done the job. Eze now congratulated them for a job well done and I have been standing there for over 5 minutes, before Ekpe Kalunta came out and saw me, and went back to report to Eze that Ogbonna???s son is here. Eze now came out and asked me how long I have been standing. I said it has not been long, he then asked me if I heard what they were saying. I said no. Eze now asked the reason of my presence in his house. I told the Eze that my father is found dead in a pit. Eze told me to go and put it in the mortuary. I then asked the Eze is it not good to involve the Police Eze said no, that I shouldn???t go to the Police that he will handle. Meanwhile, I should come back next day being on 3rd with my brother by 4 pm in the evening.
Early in the morning 3rd at about 6.30 ??? 7am, Ndi Ezieke compound met at Onyeachigbulam Ihueze to discuss on the sudden painful death of my father. After little discussion they now decided to go to the scene. Immediately, gotten to the door post Eze asked me to stop there I then stood up, he asked is it the time

he asked me to come, I told him that I have been trying my brother???s phone number since yesterday. The line was not through. Eze now said they are discussing on how to give my father a good burial, that I shouldn???t bother myself much that everything will be well (sic) taking care of. Meanwhile when a child looks for what killed his father, what killed his father will also kill him. In that Gracia Hall where they were I saw my father???s slippers shirt, tubers of yam and one he-goat. I so also saw the following people there, Eze Ariwodo Kalunta, Nnaji Onyegbulam, Chief Simeon Udensi, Okorie Nwaoriaku, Paulinius Wah Kalunta, Ekpe Kalunta, Ben Mgbonta, Stone Ogbonna and Umoma Kalunta.???

The witness also stated that when he left Eze???s Palace he went to Ekeke Enyi (Mr) who informed him that, he was with his father on that day to the extent that he bought the Deceased a bottle of malt at the vigil/grave digging ceremony of Catherine Kalunta which the Deceased could not finish but left the rest for his namesake Ogbonna. After some time, the Deceased told him (Ekeke Enyi) that he was leaving for the Eze???s house to discuss on

electricity and left. Ekeke was said to have informed him (the witness) that when he left for his shop to pick something, he was in front of the shop when the Deceased and Chief Simeon Undensi passed by heading to the Eze???s Palace.

Finally, at page 41 of the Records the said Chinedu Ogbonna also stated that in addition to his statement made on 10th August, 2010 when his Deceased father was alive, Eze Ariwodo Kalunta (1st Accused now deceased), had tried several times to remove the Deceased from being the Village Head of Umuorie and put Kalu Thompson. The youths disagreed with the Eze owing to his Deceased father???s self less services to the Village while alive.

???The witness also stated that second time of the attempt at the removal of the Deceased by the equally Deceased Eze/1st Accused was when the Eze wanted to replace his said father with Okorie Nwaoriaku and the youths also kicked against it for according to the youths, the man they knew was his late father. The Eze did not stop at attempts to remove his father but went as far as accusing his Deceased father of embezzling Electricity funds which the village finally discovered that his

late father was innocent.

To buttress the fact that the Deceased Ogbonna Ihueze was last seen with Chief Simeon Udensi (3rd Appellant) on the fateful date of the murder of the Deceased, the said 3rd Appellant, refer to case file at page 53 ??? 54 stated in his statement made on 14/06/2010, that he saw the Deceased last on the 1st day of June, 2010 while sitting on the same bench with him at the grave digging ceremony of Catherine Kalunta who was to be buried on the 2nd day of June, 2010. The Deceased later informed him that he was feeling cold and was about going to buy medicine. Before then the Deceased had informed him that one Simeon Udensi the Prime Minister of their Community informed him that the Traditional Ruler invited them to the Palace in the evening of that day. The Deceased then left him to meet the said Simeon as the Deceased said earlier.

The witness further stated that he later left to his shop where he sells provisions and while in front of his shop at about some minutes after eight O???clock in the night, he saw the Deceased with Simeon Udensi (now the 3rd Appellant) going to the Eze???s Palace. The witness said he later

left to where the grave digging ceremony was taking place and the next day he heard that Deceased was found dead inside a pit and the corpse later taken to the mortuary for preservation. In the morning of 3rd June, 2010 as earlier stated by Chinedu Ogbonna Ihueze, the said Chinedu came and asked him about his father since they were together during the grave digging ceremony and he explained to the said Chinedu about his Deceased father???s movement.

At page 63 of the Records the statement of Isiaha Samuel Adiele made on the 24th of June, 2010 also confirmed the assertion of the said Chinedu that on the 2nd day of June, 2010 in the afternoon he was fetching water from a borehole adjacent Eze Kalunta???s house when he saw Chinedu Ogbonna Ihueze going towards the Eze???s Palace. He called the said Chinedu to find out where he was going to and the said Chinedu told him that he was going report to the Eze that his father???s dead body was found inside a pit. The witness also stated that when Chinedu went inside the Eze???s gate and the gateman by name Deh Kalu opened the gate for him (Chinedu) and he went inside. Thereafter, the witness

said, he fetched his water and left and did not know what he discussed with the Eze.

At page 65 of the Records/Proof of Evidence Solomon Ubani a mortician at the Bende Medical Services Mortuary in his undated statement stated that: ???The body of late Mr. Ogbonna Ihueze (m) was brought here for preservation on the 2nd of June, 2010 around afternoon time. When the corpse was brought he was naked and whole body was mutilated and lacerated. That is all I know about this case.???

Above all, the Police Investigation Report of 31st August, 2010 signed by John E. Achuam (ACP) Deputy Commissioner of Police Zonal Criminal Investigation Department, Zone 9 Headquarters, Umuahia addressed to the Assistant Inspector General, the Nigeria Police Force, Zone 9 Headquarters Umuahia, Abia State in his findings (3) ??? (10) particularly (7) ??? (10)is clear that there was sufficient evidence from the statements of the witness to establish a prima facie case warranting the preferment of the indictment or information against the Appellants. For the avoidance of doubt, the said findings (7) to (10) state as follows:
???(7) That the Petitioner

Chinedu Ihueze met Messrs Ekpe Kalunta, Irokanulo Kalunta, Udensi Simeon, three strange faces, Ugoeze Ihuoma Kalunta and HRH Eze Dr. Kalunta Ariwodo in the Eze???s Palace.
???(8) That evidences of Messrs Isaiha S. Adiele, Solomon Ubani and Elder Peter Ekeke Enyi to the effect that they saw the Petitioner going to the Eze???s Palace, and also the Deceased in company of the suspect Simeon Udensi point to the fact that the complainant actually saw the father???s slippers, shirt, goat and tubers of yam at Eze???s Palace.
???(9) That the evidence of the mortuary attendant that the deceased was brought naked to the mortuary is relevant.
???(10) That the medical report from Abia State University Teaching Hospital, stated that the Deceased was (sic) strangulated (strangled?)???

Inspite of all these findings the Deputy Commissioner of Police in his Conclusion/Recommendation clained thus:
???I am afraid, the evidence adduced in this case cannot ground prosecution as it is essentially a mere suspicion. The dress of the deceased which the complainant said he saw at the Palace of HRH Eze Dr. Ariwodo Kalunta with

the suspects was not secured neither was it recovered during diligent search of the Eze???s Palace.???

However, the Commissioner was magnanimous enough to suggest that the case file be transmitted after duplication to the Director of Police Prosecution of (DPP) for vetting and possible advice, this latter recommendation which the Assistant Inspector General of Police graciously approved by his endorsement at page 70 of the Records.

Going by the authority of Duriminiya V. C.O.P. (1962) NWLR 70; per Bate, J. there is considerable force in the submission of the Learned Counsel for the Appellants that our system of administration of justice is accusatorial and not inquisitional in which case it is not the duty of a Court to carry out investigation no matter how tempted to so do. As was rightly held by Bate, J: ???a trial is not an investigation, and investigation is not the function of a Court. A trial is a public demonstration and testing before a Court of the case of the contending parties.???
Furthermore, there is no doubt that the Supreme Court in A.C.N. V Nyako (2013) ALL FWLR (Pt. 686) 42 at 464 paras. A ??? C; Per

Muhammad, JSC, had quoted with approval the decision in A.C.N. V. Lamido (2012) ALL FWLR (Pt. 630) 560 at 584 ??? 585, that: ???A judge is and adjudicator and not an investigator. It is not the duty of the Tribunal in the instant case, to sort out any documents on its own for purposes of linking same to the evidence before it to ensure the credibility and reliability of the evidence ascertained and applied towards the just determination of the case.
It is not the duty of a Court or Tribunal to embark upon cloistered justice by making inquiry into the case outside the open Court not even by examination of documents which were in evidence but not examined in open Court. A Judge is an adjudicator not an investigator.???

I am afraid that as efficacious as the dicta of their Lordships of the Supreme Court are having fitted the peculiar facts and circumstances of the cases so decided, they do not apply to the facts and circumstances of the instant case. While conceding to the point that it is the Police that is clothed with the statutory and constitutional powers of investigation and not the Courts like the High Court of Abia State of Nigeria,

Uzuakoli Division that decided the case now on Appeal, with the greatest respect to the Learned Counsel to the Appellants, even though the Police in their investigation gave the Appellants a clean bill of innocence; yet they still recommended that the case file be duplicated and transmitted to the Director of Public Prosecutions for directives after vetting. The Learned DPP in his wisdom vetted the case file and the proof of evidence and found sufficient evidence from the witnesses for the prosecution to establish a prima facie case against the Appellants. Indeed the Learned Trial Judge taking into consideration the entire findings of the Assistant Commissioner of Police Investigation, was duty bound under Section 340(1) and (2) of the Criminal Procedure Act or Law to file Information against the Appellants.

The Learned Trial Judge was not bound to hold that there was no prima facie case in view of the statements of the witnesses as earlier reproduced as well as the Medical Report from the Doctor who performed the autopsy on the body of Deceased.

It is gratifying to vote note that the Learned DPP had rightly cited Abacha V. The State (2002) 11 NWLR

(Pt. 779) 437 at 502 para. A and Ekwunugo V. FRN (2008) 15 NWLR (Pt. 1111) 630 at 639 ??? 640 paras. H ??? ;B to debunk the claim of the Learned Counsel for the Appellant that the Court below erred in law to have held that it was rather premature when the Appellants have not taken their plea and hearing commenced for the Accused/Appellants to talk of the case for the prosecution not raising a prima facie case and that it is neater and much better if the Accused Appellants had taken their plea and hearing commenced before raising the issue of prima facie case; and further that the picture then or the coast would have been made clear for one to consider the submission of no case at that stage.

Definitely, the Learned Trial Judge must have misdirected himself when he held that the Appellants have to wait until pleas were taken and the case proceeds to the stage of no case submission at close of the prosecution???s case. As I had earlier said, apart from quashing a charge or charges, information/indictments upon formal defects in the charge, where the charge for instance is not backed up with sufficient evidence from the proof of

evidence/statements of the prosecution witness, the information is liable to be quashed as that is the purport of Section 430(1) of the Criminal Procedure Law/Act.

On the other hand in the self-same Abacha V. The State (supra) (2002) 100 LRCN 1618 JO (see also 2002) 11 NWLR (Pt. 779) 437 at 50 para. H ??? 502 para. A ??? B; per Kutigi, JSC (as he then was) re-emphasizing the need for Appellate Courts not to talk too much in an Interlocutory Appeal; held that: ???????????????because the case is yet to be tried, care must be taken not to talk too much or make observations on the facts in the judgment which might appear to pre-judge the main issue or issues in the proceedings relative to the interlocutory ruling or judgment (see for example Egbe V. Onogun (1972) 1 ALL NLR (pt. 1) 95; Ojukwu V. Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39.???

Guided by the above dictum and although I have talked too much already, the Learned Trial Judge was right to have refused the Application to quash the information although for the wrong reason that the Appellants ought to have taken their plea and raise the issue of lack of

prima facie case at the stage of no case submission. Ordinarily, the Ruling of the Court below was as brief as it ought to be. The foregoing notwithstanding, I agree with the Learned Counsel for the Respondent that the Court below (the Learned Trial Judge) confused the circumstances under which an accused person would make a no case submission at the close of the prosecution???s case as provided under Section 286 of the Criminal Procedure Law Act.

For an Application of this nature all that the Applicants/Accused/Appellants ought to do in order to ground their Applications for the quashing of the information was to show that from the proof of evidence there are no sufficient facts to sustain the information charge or indictment. In other words, from the statements of the witnesses as contained in the proof of evidence, there exists no prima facie case warranting the Appellants as Accused persons to stand trial in the Lower Court.

In the Abacha V. The State case (supra) where the Court of Appeal frowned at the adoption of the procedure of quashing the indictment on the information just like the Court below in the present case deprecated the

inability or refusal of the Appellants to take their pleas before asking for the quashing of the information by way of no case submission at the close of the prosecution, Belgore, JSC (as he then) held at page 1604 para 00TT ??? 1605 paras 4 ??? U of (2002) 100 LRCN thus:
???It is a right that the law creating filing of information clearly confers, and it is conferred to be applied when a party is accused of any indictable offence to take advantage of it. It is therefore necessary when the application is made to quash indictment on the information for the trial Judge to attend to such an application dispassionately and rule on it. The best way to do this is to read all the depositions made by potential witnesses and Accused persons so as to find if there was a prima facie case for the Accused to answer. But what is prima facie case. Prima facie is difficult to define precisely and some vital ingredients are clear. Facts that are clearly revealing a crime and the crime links an accused person may be prima facie evidence that the Accused has something to explain at the trial. But that is not always the whole that is needed as circumstances must

indicate. It is even very difficult in the face of dearth of precise definition of prima facie. The best definition is the one offered in an Indian case of Sher Singh V. Jitend-dranthen (1931) 1 LR 59 Calc 275 quoted with approval by the Federal Supreme Court in Ajidagba V. Inspector-General of Police (1958) SCNLR 60 as follows:
???The terms as so far as we can final have not been defined either in the English or Nigerian Courts. In an Indian case, however, we find the following dicta: ???what is meant by prima facie (case? It only means there is ground for proceeding ??????.. But a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty??????.. and the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the Accused.???
Thus if the facts in a deposition whether on oath in preliminary investigation or not on oath in mere statements attached to information do not disclose a prima facie case the indictment must be quashed. See Ajidagba V. Inspector General of

Police (supra); Okoro V. The State (1988) 12 SCNJ (1988) 5 NWLR (Pt. 94) 255. Therefore the statements in this matter must be read by the trial Court and the Court of Appeal carefully to know whether there was a prima facie case for the Appellant to answer.???
???In Nyame V. F.R.N [2010] 7 NWLR (Pt. 1193) 344 at 391 paras. D ??? G; the Supreme Court again per Adekeye, JSC warned that what the information must disclose at the state of an Application to quash an indictment or charge is not the guilt of the Accused but prima facie case to answer. At that stage, he equally posited, in deciding whether to prefer a charge, the prosecutor is not obliged to decide as a trial Judge should, whether the available evidence is cogent enough to justify a conviction. Ikomi V. The State (1986) 3 NWLR (Pt. 28) 340.???
It seems from the authorities above cited, an Application to quash is akin to an Application to appeal out of time which one of its essential ingredients for the grant thereof, is that the Grounds or Ground of Appeal should disclose arguable issues without the necessity that the Appeal would at that stage of Application succeed. This is

because the likelihood of the success of the Ground of Appeal would be decided at the point of argument of the Appeal.
Therefore trial Courts and indeed Appellate Courts are admonished to apply their wisdom and knowledge by balancing he need to avoid letting an otherwise guilty person off the hook or to oppress an otherwise innocent citizen in view of his Constitutional rights as entrenched in Sections 36(5), (8) and (12) as well. Thus, the decision to try a person on information and refusal to quash an information must not be based on evidence of suspicion and in the determination of whether the proof of evidence discloses prima facie case the Courts are also admonished not to determine whether there is sufficient evidence that indicts the Accused person or capable of proving his guilt on the offence charged. The duty of Court therefore is to decipher from the statements of supposed witnesses and documentary Exhibits or other materials that tend to link the accused with the commission such that at least some explanation(s) is/are expected of the Accused.
This is because, as have been held in the Abacha V. The State case at page 1602 of the Report

ably cited by the Learned Counsel for the Appellant, and Nyame V. FRN (supra) at 420 ??? 21 paras. G ??? E.
???All power to settle issues between parties is vested in Courts and the Court must be vigilant that genuine issues and controversies are settled so that no Accused person will be oppressed whether directly or indirectly through act of the prosecution, if not we will have persecution in place of prosecution. It is for this reason that an Accused person despite the power to file indictment on an information, should not be indicted to face trial, that from the outset, it was clear he should not face.???
See Okoli V. The State (1992) 6 NWLR (Pt. 247) 351; Aituma V. The State (2007) 5 NWLR (Pt. 1028) 466; Ikomi V. The State (1986) 3 NWLR (Pt. 28) 340; Ohworiola V. F.R.N. (2003) 21 NWLR (Pt. 803) 176; and finally the monumental judgment of my Learned brother H. S. Tsamani, JCA of the Ibadan Division of this Court in Mrs. Gbojubola Balogun V. F.R.N. (2015) LPELR ??? 24744 (CA) at PP 53 ??? 59 ;which I adopt completely as mine.

In the instant case although the Court below wrongly decided that the Appellant???s

Application was premature and in one breath held rightly that the there was/is no procedural or formal defect in the charge, this Court can step into the shoes of the Court of trial to decide the Application on the merits the crucial question which is whether there was/is prima facie evidence to link the Appellant with the murder of the Deceased Ogbonna Ihueze even if not directly but circumstantially and I dare answer the question in the positive.

Having gone through the proof of evidence including the Investigation Reports which gave the Appellants a clean bill of innocence, I hold that there are sufficient materials with which the Court below would have come to the inevitable conclusion that a prima facie case existed for the Appellants to answer.

???The Appeal is hereby dismissed and the Ruling of the Lower Court refusing to quash the information against the Appellants is hereby affirmed. The Appellants/Accused persons (if they on bail) shall be rearrested and rearraigned and their respective pleas taken in order for them to be tried so that the statements of the prosecution can be tested through the furnace of cross-examination in the interest of

justice.

Other Citations: (2016)LCN/8954(CA)

Chief Gabriel Oparanti & Ors V. Alhaji Nasiru Oyeniyi & Ors (2016) LLJR-CA

Chief Gabriel Oparanti & Ors V. Alhaji Nasiru Oyeniyi & Ors (2016)

LawGlobal-Hub Lead Judgment Report

MOHAMMED AMBI-USI DANJUMA, J.C.A.

This is an appeal against the Ruling of the High Court of Justice, Osun State, sitting at Osogbo in Suit No. HOS/7/2010, delivered on 18-2-2011 but which enrolled order was dated and issued 17 -2 -2011.

For the avoidance of any ambiguity. I shall set out the history and facts of the case on appeal as clearly set out by the appellants.
STATEMENT OF FACTS
The plaintiffs (hereinafter referred to as ?the 1st and 2nd respondents’) filed their suit before the lower Court to challenge the validity and demand for the nullification of the 2005 Amended Ataoja of Osogbo registered chieftaincy declaration (hereinafter called ‘2005 declaration’), challenge the number and order of rotation of the ruling houses, demand for the merger of Matanmi and Oyipi ruling houses, demand for the removal and derecognition of Laro and Lajomo ruling houses, demand that only their own Sogbo Ruling house and no other ruling house should present candidate(s) to succeed the immediate past Ataojo, Late Oba Iyiola Oyewale Matanmi 111 who hailed from Matanmi ruling house and so on as

contained in the writ of summons (pages 1 to 4 of the record) and the statement of claim (pages 5 to 15 of the record) and more importantly the 16 reliefs claimed at paragraph 64 (i) to (xvi) of the statement of claim at pages 12 to 14 of the record.
The appellants denied the claim in its entirely as set out in their statement of defence (pages 195 to 200 of the record). By paragraphs 30 – 31 of their said statement of defence, the appellants objected to the jurisdiction of the lower Court to entertain the case on many grounds some of which were that the plaintiffs lacked the locus standi to institute the case, the case was caught by principles of res judicata, capable and limitation period, some of the defendants were not juristic persons capable of suing and/or being sued and so on. As required by the rules of the lower Court and expressly indicated in their defence, the appellants applied vide their motion on notice dated 20/1/2011 but filed on 21/1/2011 for the said preliminary issued or points of law to be set down for hearing before the hearing of the substantive suit since those issues were capable of disposing of the whole case without going

through the rigours of full trial (pages 395 to 485 of the record). All the respondents were duly served with the said application.
Oba Olanipekun was neither a party to the substantive case nor the 1st and 2nd respondents’ motion dated 17/9/2010 (pages 622 to 643 of the record) filed to set aside and which eventually led to the setting aside of all the process that led to his nomination, selection, approval and issuance of instrument of appointment and presentation of staff of office as the Ataoja of Osogbo as per the lower Court’s ruling of 18/2/2011 (pages 757 to 774 and 1130 of the record) Which is the subject of this appeal.
In its ruling of 1/11/2010, the Trial Court rightly held that an application that challenged the jurisdiction of the Court took precedence over and above all other applications and that such applications should always be heard first (pages 1076 to 1090 of the record) only for the same Court to reverse itself on 28/1/2011 by its refusal to hear and give any date for the hearing of the appellants’ motion on notice filed on 21/1/2011 challenging the Court’s jurisdiction to entertain the case despite some legal authorities and

the lower Court’s ruling of 1/11/2010 cited to the Court on the pre that the said appellants’ motion is not a preliminary objection per se”. (pages 1071 to 1075 of the record).
It is noteworthy that on 28/1/2011 when the 1st and 2nd respondents’ motion to set aside Oba Olanipekun’s appointment etc. was moved, the ruling was expressly and openly adjourned to, and actually delivered in the open Court on 18/2/2011.
Strangely, the enrolment of order of the said ruling was already made, issued, dated and signed by the Trial Judge and the Registrar of the lower Court on 17/2/2011, a day before the said ruling was actually delivered (pages 1131 to 1134 of the record).”

The relevant processes for the determination of this appeal are
1. The Amended Notice of Appeal dated and filed on 3 – 02 – 2016;
2. The Amended Appellants’ Brief of Argument dated and filed 2 –
2 – 2016 but deemed filed on 16 – 5 – 2016.
3. The 1st and 2nd respondents’ brief of argument.
4. The appellants’ reply brief dated 8 ? 4 -2016 and of argument filed 11 – 4- 2016 and deemed filed on 16 – 5 -2016.

?The Appellants amended grounds of appeal and

their particulars thereof are reproduced thus:-
Amended grounds of appeal
Take that the 1st to 7th appellants being dissatisfied with the decision of the High Court of justice of Osun State, Osogbo Judicial Division, Osogbo contained in the ruling of Honourable Justice A. A. Aderibigbe dated 18th February, 2011 doth hereby appeal to the Court of Appeal, Akure upon the amended grounds set out in paragraph 3 and will at the hearing of the appeal seek the amended reliefs set out in paragraph 4.
And take further notice that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2. Part of decision appealed against
The whole decision except the lower Court’s finding that none of the parties or their counsel gave any undertaking to the lower Court on 8/9/2010.
3. Amended grounds of appeal
The learned judge erred in law and acted without jurisdiction when on 18/2/2011, he set aside all the processes that led to the nomination, selection, approval and issuance of instrument of appointment and presentation of staff of office to Alhaji Jimoh Oyetunji Olanipekun (hereinafter referred to

as Oba Olanipekun) as the Ataoja of Osogbo without making and/or joining him as a party to the suit and the plaintiffs’ (now 1stand 2nd respondents) application dated and filed on 17/9/2010 on which the said orders were granted, without serving him with the Court processes and without giving him fair hearing, thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
1. Oba Olanipekun was neither made nor joined as a party to the suit and the plaintiffs’ application dated and filed on 17/9/2010 upon which the processes that led to his nomination, selection, approval and issuance of instrument of appointment and presentation of staff of office as the Ataoja of Osogbo were set aside.
2. The Court possesses in the said case and application were never served and/or ordered to be served on Oba Olanipekun by the lower Court; he was neither heard nor given any opportunity to be heard before the said orders were made against him on 18/2/2011.
3. The lower Court’s action caused substantial miscarriage of justice.

2. The learned trial judge erred in law and he failed to exercise his discretion judicially and judiciously

by his refusal to hear and give any date of the hearing, of the 10th to 17 defendants’ motion on notice dated 20th but filed on 21st January, 2011 to set down for hearing and to hear preliminary issues/points of law which were validly pleaded and raised on issues relating to the plaintiffs’ locus standi to institute the case, juristic personality, limitation period, res judicata, competency of the case and the jurisdiction of the lower Court to entertain in case before the proceeded to hear and grant the plaintiffs’ application dated and filed on 17/9/2010 which set aside the nomination, selection, approval and issuance of instrument of appointment and presentation staff of office to Oba Olanipekun as the Ataoja of Osogbo thereby occasioning miscarriage of justice.
PARTICULARS OF ERRORS:
1. The 10th to 17th defendants entered conditional appearance and filed a joint statement of defence dated 25/10/2010 wherein they denied the plaintiffs’ claims and raised some objections on issues relating to the plaintiffs’ locus standi to institute the case, juristic personality, limitation period, res judicata, competency of the case and the jurisdiction of the

lower Court to entertain the case, etc with an indication that the said issues would be called upon for determination at/or before the trial (pages 193 to 209 of the record).
6. By their application dated 20/1/2011 but filed on 21/1/2011, the 10 to 17th defendants prayed the lower Court to set down for hearing and to hear their said, various objections and points of law which challenged the proceedings to hear the substantive case (pages 395 to 495 of the record).
7. The plaintiffs reacted to the said application by filing their counter affidavit and counsel’s written address thus making the said application ripe for hearing as at 28/1/2011 on which date the lower Court refused to hear and/or give any date for the hearing of the said 10th to 17th defendant’s application.
8. The lower Court on 28/1/2011 heard the plaintiffs’ motion dated 17/9/2010 and granted some on 18/2/2011 by setting aside the processes leading to Oba Olanipekun’s emergence as the Ataoja of Osogbo without considering the relevant facts, arguments and legal principles and without exercising its discretion judicially and judiciously.
9. The lower Court by its ruling of

28/1/2011 overruled its previous ruling of 1/11/2010 delivered in the same case on the priority of the applications challenging the Court’s jurisdiction and other applications after the Court had become functus officio, thereby demonstrating bais against the appellants.
3.The learned trial judge erred in law and acted without jurisdiction when at the interlocutory stage of the proceedings, without considering the nature of the case and relevant principles and facts, without hearing the substantive case and without any of the relevant documents relating to the processes of nomination, selection, approval and appointment being produced before him, he held that the acts of the 1st to 3rd, 4th, 7th, and 10th to 17th defendants amounted to lawlessness in the extreme and calculated interference with the Court?s duty to adjudicate and proceeded to grant the plaintiff’s interlocutory application dated 17/9/2010 setting aside the processes that led to the nomination, selection, approval and issuance of the instrument of appointment and presentation of staff of office to Oba Olanipekun as the Ataoja of Osogbo, thereby occasioning miscarriage of Justice. (at

pages 772 to 773 of the record)
PARTICULARS OF ERRORS:
9. The lower Court did not grant any previous order of interim and/or interlocutory injunction against the parties to the case,Oba Olanipekun and/or anybody else.
10. The doctrine of lis pendens does not apply to chieftaincy matters such as the Ataoja of Osogbo stool involved in this case.
11. The lower Court did not order for the production and he did nomination, selection, appointment, installation and presentation of staff of office of Oba Olanipekun.
12. The lower Court did not consider the nature of the case relevant facts and principle before it made the said order.
13. There was no claim in respect of installation and appointment of Oba Olanipekun in the substantive case.
14. There was no breach of any order already granted by the Court.
15. The defendants, especially the {10th to 17th defendants and the emergence of Oba Olanipekun’s nomination, selection, etc commenced before,the plaintiffs’ case and motion was filed.
4. The ruling of the lower Court is against the weight of evidence
5. The learned trial judge erred in law and acted without

jurisdiction when he granted some reliefs which were neither claimed nor substantiated by the plaintiffs in their application dated 17/9/2010, thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS
4. the plaintiffs’ application dated 17/9/2010 did not contain any prayer to declare as irregular, null and void all the processes that led to the nomination, selection, approval, installation and issuance of instrument of appointment and presentation of staff of office to Oba Olanipekun as the Ataoja of Osogbo.
5. The 3 reliefs claimed in the plaintiffs’ said motion were consequential orders which cannot stand on their own null and void.
6. The plaintiffs’ application did not contain any prayer to set aside the appointment and installation of Oba Olanipekun and their supporting affidavit did not contain any fact on the alleged issuance and approval of instrument of appointment to him.
?6. The learned trial judge erred in law and misdirected himself when before he reviewed the facts and arguments of the parties before him he jumped to the conclusion and held at pages 760 of the record that:

“From the facts

before this, Court which all the parties admitted as true, the process to fill the vacant stool of Ataoja of Osogbo commenced on the same 08/09/2010 when this case was adjourned and by 11/09/2010, the candidacy of Alhaji Jimoh Oyetunji was approved and he was installed as the Ataoja of Osogbo and presented with the staff of office.” Which finding and conclusion the trial judge repeated subsequently at page 771 of the record when there were no such facts and/or admissions before him, thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
6. There was no facts and/or admission of facts before the lower Court by the parties to the effect that the processes to fill the vacant stool of Ataoja of Osogbo commenced on the same 8/9/2010 when he case was adjourned and that by 11/9/2010, Oba Olanipekun was nominated, approved, installed and presented with staff of office as the Ataoja of Osogbo.
7. The plaintiffs alleged in their application dated 17/9/2010 that Oba Olanipekun’s nomination, selection, approval and issuance of the instrument of appointment as the Ataoja of Osogbo took place on 9/9/2010 and that he was presented with

staff of office on 12/9/2010 but the plaintiffs alleged in paragraphs 26 and 27 of their affidavit in support of the said motion that Oba Olanipekun was installed on 10/9/2010 and presented with staff of office on 11/9/2010.
8. There were uncontroverted facts and evidence before the lower Court from the plaintiffs, the 1st, 2nd, 3rd, 4th and 7th defendants that the processes of nomination, selection, appointment and installation of Oba Olanipekun commenced before the substantive case and the said application were filed.
9. The 10th to 17th defendants had performed their roles by selecting Oba Olanipekun before they were served with the Court processes.
10. The said findings and conclusions of the learned trial judge were not supported by any evidence before him.
?7.The learned trial judge erred in law when he formulated suo motu and held at page 760 of the record that the only issue for determination was “Whether the application ought to be granted in view of the fact that the 1st, 2nd, 3rd, 4tn, 7th,10th, 11th, 12th, 13th, 14th, 15th, 16th and 17th defendants/respondents (“hereinafter called “the respondents”) nominated, approved,

installed and gave a staff of office to Alhaji Jimoh Oyetunji Olanipekun as Ataoja of Osogbo during the pendency of an application for interlocutory injunction which has been served on all the defendants.” Thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS;
1. The counsel for the 1st to 3rd defendants, 4th defendant, 7th defendant and 10h to 17th defendants formulated various issues for determination which were not captured in the only issue formulated suo motu for determination by the learned trial judge in respect of the plaintiffs’ application dated and filed on 17/9/2010.
2. The learned trial judge focused on the said sole issue formulated by him in deciding the said application without considering and/or adequately considering the other issues formulated by the counsel to the 1st to 3rd, 4th, 7th and 10th defendants bothering on the locus standi of the plaintiffs, competence and the lower Court’s jurisdiction to entertain the case and the said application.
3. The plaintiffs’ said application did not contain any prayer to set aside Oba Olanipekun’s appointment and installation hence no competent issue could be

formulated on them.
8. The learned trial judge erred in law when he held at page 769 of the record that:
“Another point raised by almost all the respondents.
Counsel is the fact that the res is the vacant stool of Ataoja of Osogbo which they argued could not be destroyed. It is my opinion that all the counsel missed the point. The present application is not a motion for injunction where the issue of res or presentation thereof will be present. The act been complained about is the processes of nomination, approval, installation and presentation of staff of office during the pendency of this suit and the interlocutory injunction is being heard and not in the present application to set aside.” Thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
9. The plaintiff did not describe any of the 3 reliefs sought in their application dated 17/9/2010 as mandatory orders of injunction.
10. None of the prayers sought by the plaintiffs affected Oba Olanipekun’s installation.
11. The nature of the res involved and the need for its temporary preservation after Oba Olanipekun’s appointment were some of the factors

which ought to have been duly considered but which were not considered by the lower Court despite that they were validly and timeously raised and argued by the defendants’ counsel.
12. The deliberate refusal of the learned trial judge to consider the said issue weighed heavily in his mind and misled him to grant the plaintiffs’ application dated 17/9/2010.
9. The learned trial judge erred in law and acted without jurisdiction when on 17/2/2011 he had already made, issued and signed the enrolment of order of the ruling which purportedly set aside all the processes that led to the nomination, selection, approval and issuance of instrument of appointment and presentation of the staff of office to Oba Olanipekun as the Ataoja of Osogbo, a day prior to 18/2/2011 when he actually delivered his reserved ruling in the open Court with contents materially different from the said enrolment of order of the said ruling, thereby making the order and ruling suspect and occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
1. The lower Court on 28/1/2011announced in the open Court that it would deliver its ruling on the plaintiffs’

application dated 17/9/2010 to set aside the processes that led to the nomination, selection, approval and appointment of Oba Olanipekun as the Ataoja of Osogbo on 18/21/2011
2. The lower Court actually delivered its said ruling in the open Court to 18/2/2011.
3. The said case did not come up and the lower Court did not deliver any ruling in respect of the said application and/or the case on 17/2/2011 on which date the enrolment of order was purportedly made, dated., issued and signed by the learned trial judge and the Registrar of the lower Court, thereby occasioning substantial miscarriage of justice.
4. The contents of the said enrolment of order of the said ruling made, dated, issued and signed by the learned trial judge and the Registrar of the lower Court on 17/2/2011 are materially different from the ruling delivered on 18/2/2011.
10. The learned trial judge erred in law and acted without jurisdiction when at the interlocutory stage of the proceedings and before the commencement of the trial of the substantive suit, he hurriedly and strangely held that Laro was a purported ruling house in respect of the Ataoja of Osogbo chieftaincy

thereby prejudging some of the important reliefs being claimed by the plaintiffs in the substantive case and occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
1. The 1958, 1981 and 2005 registered declarations in respect of Ataoja of Osogbo chieftaincy recognized Laro as a ruling house in respect of the said chieftaincy.
2. Laro was the next ruling house to produce an Ataoja after the Matanmi ruling house which produced Late Oba Iyiola Oyewale Matanmi 111 under the said 1981 and 2005 declarations.
3. The plaintiffs? family had unsuccessfully challenged the said 1981 declaration in their bid to abolish Laro Lajomo ruling houses in Suit No. HOS/41/82: Raji Gboyeola Kolawole & 3 Ors. V. Oba Iyiola Oyewale Matanmi & 14 Ors but their said claims relating thereto were dismissed and the 2 ruling houses confirmed by the Court
4. There was no appeal against the said judgment of the Oyo State High Court which was delivered since 1988 by Hon. Justice Yekinni Adio, (as he then was) but the case before the lower Court was filed in 2010 to recontest the issues already validly decided in the said judgment and

implemented by government since 2005.
5. The learned trial judge did not give the defendants, most especially the 10th to 17th defendants the prior opportunity of being heard, he did, not consider the Ataojo of Osogbo chieftaincy declarations made in 1958, 1981 and 2005 and the said judgment before he held at the interlocutory stage of proceedings that Laro was a purported ruling house.
6. The 10th to 17th defendants as the traditional kingmakers and the custodians of the native law and custom of Osogbo relating to the Ataojo stool believed and knew that Laro had always been an authentic and a recognized ruling house in respect of the Ataojo of Osogbo chieftaincy.
11. The learned trial judge erred in law and misapplied the principles in the case of Garba V. Federal Civil Service commission & Anr. (1988) 1 NWLR (pt. 71) 449 when he held that every party who is remotely connected to the case of Court even when such a person would be affected by the order to be made and he proceeded to hold that Oba Olanipekun was not a necessary party to the case and the said plaintiffs’ application dated 17/9/2010 which set aside his nomination, selection,

approval and documents, thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
9. The reliefs sought by the plaintiffs and granted by the lower Court were targeted at nullifying the actions of some of the defendants and the appointment of Oba Olanipekun as the Ataoja of Osogbo.
10. Upon his said appointment, Oba Olanipekun had already acquired vested intereet and rights which were personal and exclusive to him over and above anybody else, members of his family inclusive.
11. The facts and circumstances in Garba’s case on which the trial judge relied heavily were not similar and relevant to the case.
12. The documents which were set aside in Garba’s case were produced before the said Court unlike this case where no document was produced before the lower Court.
13. The learned trial judge erred in raw when he held at page 771 of the record that ‘Going by the various affidavits of service and the admission of the parties every defendant/respondent was served with the motion ex parte and motion on notice for injunction,.
PARTICULARS OF ERRORS:
2. The lower Court did not order that the defendants be

served with the plaintiffs’ exparte motion and none was served and/or meant to be served on the 10th to 17th defendants.
3. There was no affidavit of service and/or admission of facts before the lower Court that copies of the plaintiffs’ motion exparte for interim injunction were ever served on any of the defendants, the 10th to 17th defendants inclusive.

At the hearing, the leading learned counsel for the appellants, K. O. ljatuyi Esq. adopted the amended appellants’ brief of argument dated and filed on 12/2/2016 and settled by G A. Adesina Esq. for their clients and the reply brief of 11 – 4 -2016 deemed filed 16 – 5 -2016 and urged that the appeal be allowed.

On their part, the 1st and 2nd respondents by their counsel, Mr. Adegoke adopted the brief of argument and urged that the appeal be dismissed. For the 3rd, 4th and 5th respondents, Adeniyi Esq, State counsel Osun State, who filed no brief, says he aligns with the appellants; in the same vein, shittu Esq. for the 6th respondent who filed a brief also aligns with the appellants.
?
However, Aliu Esq, for the 7th respondent who filed no brief against the presumption of law, said he

aligned with the 1st and 2nd respondents. The 8th respondent and 9th respondent, by their learned counsel, Merrs Sanusi and Olaogun, who did not file briefs either, left the outcome of the appeal to the Court’s discretion.

I should say that this appeal and appeal no CA/AK/57/2011 that had just been decided a few minutes ago arose from the same proceedings and facts.
The record of appeal are the same and the appeals were taken together.

It would ordinarily suffice to hold that this appeal abides the outcome of the appeal No. CA/AK/57/2011 against the ruling there – in of just set aside.
This is because in the face of the appellants’ challenge to the incompetence of the action at the trial Court and the jurisdiction of the trial Court, all other further steps taken including the ruling delivered, the subject of this appeal without first resolving the jurisdictional challenge rendered the hearing and ruling null and void for being conducted without jurisdiction and fair hearing.
?
That must explain the unanimous non – challance to and the lack of defence/response by the respondents’ learned counsel. It may serve no useful purpose in delving into

the determination of this appeal which the 1st to the 2nd respondents’ counsel had urged that it be dismissed for the inapplicability of the fast tract rules 2014.

Be that as it may, being a separate appeal, I shall in the interest of justice consider it on its merits, so that parties may be seen to have had their grievances ventilated. The appellants submitted 8(eight) issues for determination to wit:
Arguing the issues, starting with issues No. 1, counsel submitted that the 1st and 2nd respondents had in the interregnum created after the demise of the immediate past Ataojo of Osogbo, Late Oba Iyiola Oyewole Matanmi III filed a suit challenging the validity of and demanding for the nullification of the 2005 declaration on the Ataoja Chieftaincy, the number and order of rotation of the ruling Houses, demanding mergers of Matanmi and Oyipi ruling Houses, removal and derecognition of Laro and Lajomo ruling houses, demanding that their own Sogbo ruling house should be the next ruling house to present candidate(s) for the stool, injunction to restrain the other 4 ruling houses from presenting candidate(s) to succeed Oba Matanmi III and so on as per their

16 reliefs in paragraphs 649(i)- (xvi) to the statement of claim.

The appellants had denied the claim in its entirety as set out in their statement of defence at pages 195 to 200 of the record. By paragraphs 30 – 31 of their said statement of defence, appellants had objected to the jurisdiction of the lower Court to entertain the case on many grounds, some of which were that the plaintiffs lacked the locus standi to institute the case, case caught by res judicata, estoppel and limitation period, some defendants not been juristic persons, case irregular, incompetent etc.

That in accordance with Order 5 Rules 1 and 2 and Order 22 Rules 1 and 2 of the Osun State High Court (Civil Procedure) Rules, 2008, dealing with demurrer and as expressly indicated in their defence, the appellants applied to set down the said preliminary objections/points of law for hearing vide their motion on notice dated 20 – 1 – 2011 but filed on 21 – 10 2011 supported by affidavit and exhibits, because those issues were capable of disposing of the whole case without going through the rigours of full trial.
?
That all the respondents were duly served with the motion and the

1st and 2nd respondents had reacted by filing their counter affidavit and counsel written address thus making the said application ripe for hearing as at 28 – 1 – 2011.
?
Learned counsel referred us to the ruling of the trial Court on 1- 11 -2010 in the same case when he held that an application that challenged the Court’s jurisdiction took precedence over and above any other applications and that such application should always be heard first. (Pages 1076 to 1090 of the record). The learned counsel had argued that his application that he, be heard first before the 17 – 1 – 2010 application and because of the ruling of 1 – 11 – 2011 did not appeal to the Court and his submissions were overruled wrongly upon an injudicious exercise of discretion.

Learned counsel argued that a challenge to the jurisdiction of the Court should be given priority and be settled before any further steps are taken on the merit of a case; that any failure to do so was a fundamental breach that rendered the decision arrived at a nullity.
?
See First Bank of Nigeria Plc. V. T. S. A. Industries Ltd. (2010) 38 WRN 1 at 36: AG – Lagos V. Dosunmu (1989) NWLR (pt. 111) 552: (1989) 6

SCNJ 134: Arabella V. NAICO (2008) 5 SCNJ 109 and that objection to the Court’s jurisdiction ought to have been taken at the earliest opportunity as the appellants demanded for as there were sufficient materials before the Court to consider the case before taking any other steps in the proceedings.

Elabanjo & Anr V. Dawodu (2006) 6 SCNJ 244 at 220 – 222 to the effect that where there is no jurisdiction proceedings are a nullity however well conducted, was referred. That the attempt to wriggle out of this well established principle made the Court to overrule itself and to hold that the appellants objection was “not a preliminary objection per se.”

That the judge was in error, had become functus officio and biased against the appellants by reversing itself on its previous ruling of 1 – 11 -2010 which rightly gave priority of place to challenges against jurisdiction.

That the trial Court’s discretion to set down must not be exercised arbitrarily; that proceeding to hear the other motion to set aside as against the appellants’ application was wrong. That not exercising a discretion in accordance with principles, the Court had rightly identified, made

his decision perverse and this appellate Court should interfere by reversing this wrongful exercise of discretion. See Williams V. Hope Rising voluntary Society (1982) ALL NLR (pt. 1) 1 at 10.

That this issue be resolved in favour of appellants.

ON ISSUE 2:
Whether, it was proper for the trial judge and the Court Registrar to have made, dated, issued and signed the enrolment order of the ruling of the Court on 17 – 2 – 2011 a day to the actual delivery of the said ruling in open Court on 18 – 2 – 2011 with contents are materially different from each other and whether the said ruling and its purported enrolment order should be allowed to stand in the circumstances of the case. (Ground 9 of the amended grounds).

It was submitted that an enrolment of order is a summary of the ruling or judgment of a Court made, dated, issued and signed after the delivery of the said ruling or judgment in the open Court and not before the ruling or judgment is made. See Olurotimi V. lge (1993) 10 SCNJ 1 at 17: Order 35 Rules 2 and 3 of Osun State High Court (Amended Civil Procedure) Rules. 2008.
?
The learned counsel referred to pages 1131 to 1134 of the

record where the enrolment order is endorsed thus—– issued at Osogbo under the seal of the Court and the hand of the presiding judge this 17th day of February, 2011 .”

Counsel pointed out that the ruling having been delivered on 18 -2-2011 upon the adjournment to that date on 28 – 1 – 2011, it meant the enrolment order had been made before the ruling and that the Court could not have properly enrolled an undelivered ruling.

That it was strange and the said enrolment order was suspect, tainted with fraud, substantially irregular, null and void and should be expunged from the record. That the Olurotimi’s case be applied in expunging the drawn up order, as done by the Supreme Court.

That no retrial should, however be ordered as it was an interlocutory application as against the Olurotimi’s case where it was ordered because it was a final decision. That a retrial of the application will lead to a substantial miscarriage of justice and not meet the ends of justice in this case. That signing the enrolled order before judgment was an error.

That issue 2 be resolved in favour of the appellants.

?Issue 3 – it was argued that the appellants

and the other defendants before the lower Court had joined issues with the 1st and 2nd respondents/plaintiffs, as to whether or not Laro ruling house should continues to be recognized as a ruling house entitled to Ataoja chieftaincy.

It was argued that since that issue joined was still a life issue to be canvassed by the parties and decided by the Court after the hearing of the substantive case, it was erroneous for the trial Court to have hurriedly adjudged and declared Laro as a purported ruling house in respect of Ataoja of Osogbo Chieftaincy during an interlocutory application without waiting for the trial of the substantive case.

That issues that call for the determination of the main case should be avoided at the interlocutory stage of the proceedings, most especially in chieftaincy matters like this. Okafor V. A – G. Anambra State (1992) 2 SCNJ (pt. II) 219 Uwegba V. A – G Bendel State (19861 1 NWLR.

That to proceed to the determination of the substantive case which terminates the substantive case is a breach of the right to fair hearing, and which renders every decision rendered a nullity. Adegun v. A – G Oyo State (1988) 1 NWLR (pt.53)

678/709 and INEC V. Izuoga (1993) 2 NWLR (pt. 275). page 295 were referred to.

That the suit was an abuse of Court process and caught by res judicata, the issue of Ilaro as a ruling house, having been decided upon earlier by subsisting judgments. That this Court has the discretion to set aside judgments/rulings/orders that make the allegation of bias, fraud apparent and well founded.

Mark & Anr. V. Eke (2004) 1 SCM 1411156 – 157: Olabanjo V. Odofin (1996) 2 SCNJ 242/247 referring also to Yar’Adua V. Abubakar (2008) 12 SCNJ 3811 385: Total Nig. Plc. V. VMO (2004) 37 WRN 65 @ 83 were referred in arguing that invitation to touch the main issue at an interlocutory stage should be resisted.

On issue no.4, it was submitted that there was no admission as indicated in the ruling, of what ever kind. That the findings in that respect was perverse and should be set aside.

On issue No. 5, it was submitted that the ruling affecting parties (appellants, who were made parties and Oba Olanipekun who was not a party was a breach of their right of fair hearing as they were not given the opportunity to be heard before adverse pronouncements were made

against them by the lower Court on 18 – 2 – 2011.

That Oba Olanipekun had already acquired a vested interests and rights which were personal and exclusive to him over and above anybody else and even members of his family. That the appellants had not violated any Court orders and ought to have been heard, before proceeding to any order as made if appropriate.

That such orders should be set aside as done in Oyegbemi and Okafor’s cases Supra. That this issue be resolved in favour of the appellants.

Issues 6 – whether the learned trial judge was right and justified by his refusal to consider the nature of the res, the necessity for its temporary presentation pending the trial of their substantive case- ———”

It was contended that it was trite that the doctrine of lis pens does not apply to chieftaincy cases as in this suit. It applies where the object of a suit is to recover or assert title to a specific property which must be real property.

See Ogundiani V. Araba & Anor. (2001) 38 WRN 117 (1978) ALL NLR 165. (1978) 6 – 7 NSC 55 at 80: John Osagie V. Alhaii Oyeyinka & Anr. (1987) 6 SG 199 @ 208 – 209 and Oyegbemi & Anr.

V. Fatai Aromore & Ors. (2012) 30 WRN 142 @ 167 – 168, 176 ? 177, where it was held that a chieftaincy case is a claim to an honour and the doctrine of lis pendent does not apply. That the res in a chieftaincy is never destroyed and that is why the Courts are reluctant in deposing a Chief, Oba whether installed wrongly or rightly, since at the end of the day if he losses, he will suffer public odium and ridicule.

A chieftaincy stool is not a perishable commodity see Governor of lmo State V. Anosike (1987) 3 NWLR (pt. 66) 663 and Injunctions and Enforcement of Orders by Chief Afe Babalola SAN, Page 167.

Issue 7 – whether the case of Garba V. Federal Civil Services Commission (19881 1 NWLR (pt. 71) 449 was applicable.

It was argued that the Garba case supra relied upon to hold that not all parties remotely connected to a case must be made parties to the case before a relief may be granted against them was not applicable to the instant matter as a chieftaincy matter had the effects borne by the appellants and the chief removed by the order, whereas Garba’s case was decided on the basis that the Permanent Secretary Civil Service Commission

was not necessary as the commission sufficed as an agency of the Federal Government and could be sued as such solely.

On issue No. 8, it was argued, that the plaintiffs did not ask that the appointment and installation of Oba Olanipekun be set aside and thus the formulation of issue by the Court, to cover that question was not proper and this was more so that the 1st 3rd, 4th, 7th and 10th – 17th defendants had formulated other issues bordering on locus standi, competence and jurisdiction of the lower Court to entertain the 1st and 2nd plaintiffs’ application and the non – joinder of Oba Olanipekun without which no order could be made against him.

On the whole, appellants urged that this issue, with all the other issues be resolved in favour of the appellants; and that the trial Court erred in law and did not exercise its discretion judicially and judiciously when it granted the 1st and 2nd respondents’ application dated 17 – 1 – 2010 by its ruling of 18 – 2- 2011 and when it dated, issued and signed the enrolment of order of the said ruling on 17 – 2 – 2011 a day before the ruling was delivered materially different in contents and refusing

to fix a date for the hearing of the appellants’ motion dated 20 – 1 -2011 and filed 21 – 11 -2011.

It was urged upon this Court to set aside the lower Court’s ruling delivered on 18 – 2 – 2011 and its purported enrolment of order made on 17 – 2 – 2011 and to expunge same from the record and to allow the appeal set aside the orders made and remit the case with the motions filed thereon to the High Court of Justice Osogbo, Judicial Division to be heard by a judge other than A. A. Aderibigbe, J with an order for accelerated hearing of the appellants’ motion and an order that Oba Jimoh Oyetunji Olanipekun, Larooye ll should remain in office as the Ataojo of Osogbo pending the final determination of the substantive case.

In response, the 1st and 2nd respondents by their brief of argument had argued that the appellants’ counsel was a mere busy body as far as the reference to Oba Olanipekun was concerned as he was also not joined by the appellant’s counsel, nor was he representing him in this appeal or at the trial. Ohakin V. Ogbaso (2010) 19 NWLR (pt. 1226) 172 at 223 paragraph B – D referred.

That the complaint on lack of fair hearing to Oba

Olanipekun was unfounded as his family had been joined as 9th respondent.

That the order setting aside related to the acts of defendants who were parties and not to any act of the Oba Olanipekun and so the question of breach of the right of fair hearing never arose. Thereafter, counsel proceeded to raise 5 issues for determination, thus:
ISSUE ONE:
It was argued that the trial judge was right in setting aside all the processes leading to the approval and presentation of the instrument of appointment to Alhaji Oyetunji Olanipekun as. Ataoja of Osogbo during the pendency of this suit and the motion for interlocutory injunction even when he was not a party to the suit at the trial Court.

On its second issue it was argued that the trial Court was right to have set aside the acts of the appellants and some of the respondents, which were considered unlawful. That a fait accompli shall not be foisted on the Court.

Effion V. lronbar (2000) 3 NWLR (pt. 650) 545 at 563 refers.

On issue No. 2, it was argued that the trial Court was right in hearing the 1st and 2nd plaintiffs’ motion to set abide rather than the appellants motion to set down

for hearing some points of law raised in the statement of defence.

On its third issue, it was argued that the fact of the enrolment order dated and issued on 17th February, 2011 while ruling was delivered on 18 -2-2011 had not occasioned any miscarriage of justice.

On issue 4, it was argued that to refer to Laro ruling house as purported was not prejudicial to the appellants as it was part of question raised by the plaintiffs.

On issue 5, it was contended that the holding that the parties including the, appellants were served with the motion exparte had not occasioned miscarriage of justice as that motion was not heard, but adjourned with an order to put the parties on notice.

On the whole, it was urged on us to dismiss the appeal.

In reply, the appellants on issue number one submitted that the complaint on Oba Olanipekun was in order, and not one by a busy body see Alhaji Ado Ibrahim V. Alhaji Megida U. Lawal & 5 Ors.; INEC V. lzuogu (1993) 2 NWLR(pt.275) 270 @ 299: A-G Lagos State V. A-G Federation (2005) WRN 1 @ 130 – 131.

It was argued on issue 3 that there was no admission on the part of the appellants.
?
On issue 4,

there was a re argument as done in issue 3. On issue No. 5, it was contended that the Court had jurisdiction to interfere with perverse findings and conclusions of trial Court or lower Court.

On the whole, appellants maintained that judgment be entered in their favour.

I have perused the issues as raised and argued by the parties and think that though the arguments of the parties are each solid and inviting, but the arguments have clearly shown that issue 2 of the 1st and 2nd respondents will be the determinant of this appeal.

These respondents had argued that the hearing of the motion to set aside was rightly taken in priority to the motion to argue the appellants’ objections to the suit as the other motion was one filed to protect the integrity of the Court against contemptuous’ behavior of the appellants and some of the respondents when the matter was pending and motion for injunction had been filed and served.

The 1st and 2nd respondents contended that the acts of the appellants were an affront on the principle of separation of powers and an invitation to anarchy.
?
They referred to Garba V. Federal Civil Service Commission. Daniel

V. Ferguson (1891) 2 CH 27 at 30: Ivory Merchant Bank V. Partnership Investment Ltd. (1996) 5 NWLR (pt.448) page 362 @ 367 ? 368 amongst other cases.

They submitted that rules of Courts are aids to justice and not intended to frustrate the administration of justice.

On issue 3 – it was argued that the discrepancy on the date on the enrolment order and the date of ruling ie 17 -2-2011 and 18-2-2011 has not been shown to have occasioned a miscarriage of justice.

That the discrepancies in the ruling and enrolment order and inconsistency in the facts in the motion affidavit of those respondents and those recited in the enrolment order were minor and inconsequential; that they do not touch the fundamental of the ruling and had not prejudiced the appellants.

On issue No. 4, it was argued that reference to the Laro Ruling House as a purported ruling house from which Alhaji Jimoh Oyetunji Olanipekun was nominated to fill the vacant stool of Ataojo of Osogbo during the pendency of the suit and motion for interlocutory injunction was not prejudicial and did not mean that the Court had delved into the merit of the suit; that the word ‘purported’

used in describing the Laro Family as a Ruling House was proper at the stage the description was made.

On issue 5, it was argued that the holding of the trial Court that the appellants were served the motion exparte had not occasioned any miscarriage of justice as after all, such motions are not usually served and even if served had not adversely caused any prejudice.

In response, the appellants’ reply brief of argument sought to raise a point of preliminary objection to the validity of the respondents’ brief of argument on the ground that it exceeded 15 pages and indeed spanned 27 pages contrary to the Court of appeal fast track practice directions, 2014 and Order 18 Rules 3 and 4 of the Court of Appeal Rules 2011; Rules 10(1) (2) and (3) of the Rules of Professional Conduct for Legal Practitioners 2007, and the Directive of the Chief Justice of Nigeria of 12 – 5 – 2015 on the mandatory use of NBA seals on all legal documents prepared for filing in Courts by lawyers.

We were urged to discountenance the said brief for not being a brief in law; that it should be struck out for substantial irregularity and incompetence.
The respondents’

learned counsel urged that the objection was baseless as the fast track Rules, 2014 was inapplicable.

For its pivotal, position, I shall resolve the preliminary objection first, and to the effect that the preliminary objection must fail as the Fast Track Rules, 2014 of the Court of appeal is in – applicable to the nature of the suit herein, being a chieftaincy matter.

The said Fast Track Rules is applicable only to trials involving terrorism, rape, kidnapping, treason, money laundering and some economic crimes which are intended by the rules to be heard and determined expeditiously and hence the abridged time stipulations and the limitation of the number of pages of the briefs to be filed, so as to circumscribe the arguments and avoid prolific irrelevancies in the processes and arguments proffered that would only delay the hearing and determination of those matters in Court.

Furthermore, the alterative leg, limb or arm of the objection, which is on the alleged non – affixation of the NBA seal on the respondents’ brief is baseless, as same has been affixed to the respondents’ brief of argument contrary to the appellants contention.
?
The

preliminary objection in that regard is, accordingly, overruled.

Replying on the 1st issue relating to appellants arguments concerning Oba Olanipekun as argued by the respondents, the appellants contended that they were not busy bodies and could competently raise the issue of the non – joinder of the Oba as they were parties to the suit who had a right of appeal and the non – joinder was after all a jurisdictional issue that affected the whole case.

See A – G Lagos State V. Attorney General, Federation (2005) 2 WRN 1 @ 130 – 131: INEC V. lzuogu (1993) 2 NWLR (pt. 275) 270 @ 295.

In Alhaji Ado lbrahim V. Alhaji Megida U. Lawal & 5 Ors. (2015) ALL FWLR (pt. 799) 990 @ 1012 – 1013 and 1015 ? 1017, that the appellant who was not a public officer but who raised a defence of limitation period based on Section 2 (a) of the Public Officers Protection Act was not a busy body at all and that he was entitled to raise the said defence despite that the affected public officers involved in the case did not raise it.
?
In the Alhaji Megida case supra, the Supreme Court on account of the objection raised by a party that was not a public servant,

allowed the appeal and set aside the decisions of both the trial High Court and the Court of appeal which had nullified the appointment of the appellant as the Ohinoyi of Ebira Land (a Traditional Ruler) after close to twenty years of litigation. That the nullification of the appointment without a hearing was a violation of his fundamental right.

It was argued that these appellants were parties to the suit, motions and had filed processes wherein the respondents also responded; that the appellants could appeal in respect of any decision arising from that case pursuant to Sections 36, 241, 242 and 243 of the Constitution of the Federation Republic of Nigeria against the Ruling of 18 – 2 – 2011 and the enrolment order of 17 – 2 – 2011.

The learned counsel proceeded to argue that all references to Oba Olanipekun and findings in respect thereon grounds of appeal and cannot be said not to have been appealed against and posited that the submissions of counsel no matter how brilliant cannot take the place of pleadings and evidence, relying. Buhari V. INEC and Odusola V. Coker (1981) 5 SC 197.
?
That the arguments against the necessity of joining

Olanipekun was only been raised for the first time on appeal and that the principle of lis pendens was not applicable to chieftaincy disputes. Oyegbemi & Anr. V. Aromire & Ors. (2012) LPELR 7942 (CA): that there was no way the ultimate decision of the Court on the suit would be rendered nugatory by the continuation in office of Oba Olanipekun during the continuation of the trial, since nobody else including the respondents had been appointed into that office and nobody was deposed for him.

Counsel argued that the Courts have always refused applications or order intended to make an Oba already installed to vacate the office pending the determination of a case against him.

Tanimowo V. Odewoye (2008) ALL FWLR (Pt. 424) 1513 @ 1529 – 1531: In Modile V. Governor of Lagos State (2004) 12 NWLR (pt. 887) 354 & 382.
This Court held thus “…..Be sides, the installation of Oba of
Lagos or any other Oba or traditional ruler for that matter is a serious affair and should not be trifled with, the Court is therefore obliged to take into account the social and economic factors of granting an interlocutory injunction. What will be the Court’s attitude in this regard is

exemplified by what happened in the case of Gener V. China (Supra) where Katsina – Alu, JCA (as he then was) be moaned the order of injunction where the res is a non perishable commodity as the better course would have been to go to trial. And I strongly stand for that course in this matter.”

The appellant’s reply to the issue No. 2, of the respondents is a reproduction of their appellants argument on issue No. 1 on the impropriety of proceeding to hear and determine the application to set aside to the detriment of the application to set down for hearing and determination the objections raised against the jurisdiction of the Court. They referred to Order 22 of the Osun State High Court Civil Procedure Rules, 2004 and Ajilowura V. Disu (2006) ALL FWLR (pt. 333) 1613 at 1628 per Murhtar,. JSC (as he then was) relying on Order 23 of the High Court of Lagos State Civil Procedure Rules (in pari material to the Order 22 of the Osun State High Court Civil Procedure Rules).
?
On issue 3, it was argued that the excuses proffered by respondents on the conflicting statements in the ruling and enrolment order and the dating was speculative. Responding on issue

No. 4, the appellants’ counsel merely reproduced their argument in their appellants’ brief while arguing similar issue.

On issue No. 5, the appellants re argued their appeal that the trial Court had descended into the arena and considered issues that were meant to be resolved on their merit at the conclusion of the substantive case and had prejudiced the appellants’ by being biased against them and Oba Olanipekun, who was not even joined and served any of the processes nor represented at the suit.

I must say that the appellants’ reply brief though sound in law and demonstrates the full grasps of the facts and circumstances of the case and the law applicable, is nonetheless, essentially a re – argument of the appeal. This cannot be done. It is not the purport or essence of an appellant’s reply brief. That is not the forum. A reply brief is intended to respond to issues of law alone that had arisen a new in a respondent’s brief and which had not been covered by the appellant’s brief nor contemplated.
In the instant appellants’ reply brief of argument, I find that the issues addressed had already been addressed by the appellants, but for the

greater effort at answering all arguments raised, obiter, the real issues relevant to the determination of this appeal.

I shall decide this appeal on the appellants’ issue number 1 and the 1st and 2nd respondents’ issue No. 2, which are the same.

The issue border on whether the trial Court was right in proceeding to hear and determine the application to set aside the actions taken by the appellants and some respondents as filed by the 1st and 2nd respondents without first setting down and hearing the application of the appellants filed later in time but which challenges the jurisdiction of the trial Court to hear the suit at all.

Having considered the arguments of the learned counsel for either sides in this appeal and on the authority of the cases of Eriori V. Elemo (1983) SC 1: Attorney General of Lagos State. V. Dosunmu (1989) 3 NWLR (pt. 111) 552 @ 566: Ngere V. Oyuruket XIV (2014) 11 NWLR (pt. 1417) page 14 at 163 the trial Court had no jurisdiction to take the application of the 1st and 2nd respondents as it did in priority to the application of the appellants challenging its jurisdiction to hear the matter at all.

?Indeed the lower Court was

bound, in law to set down the appellants’ application for hearing before any other or further action could be taken by it in the case.

This is because an objection to jurisdiction is extrinsic and not merely intrinsic to the jurisdiction of a Court.

The trial Court had no uncatalysed discretion to tag or consider the appellant’s application as premature or as not being ripe for hearing.

A challenge to jurisdiction may be raised at any time and howsoever and without leave and must be accorded the priority of consideration and determination, no matter the motive for raising same as a Court has the vires to award costs upon the failure of such an application.
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That is the more reason why, the judex must not abandone or gloss over such as objection and proceed to hear applications of far reaching consequences, such as the one affecting a third party as Oba Olanipekun who is not a party to the suit contrary to the audi alterem partem Rule (no one shall be condemned unheard) as enshrined in Section 36 of the 1999 Constitution and a fatal slip into the determination of the substantive case or matters on which issues have been joined but without the

issues having been agitated at the hearing, yet.

It is made worst when the issues relate to a non perishable item as a chieftaincy stool which the Supreme Court and this Court have held not to be a perishable commodity and not caught by the doctrine of lis pendens, that could attract a preservative order of a reversal of acts taken during the pendency of a suit, and intended to over reach and render nugatory the decision of the Court.

It is my view that all the grounds of appeal and the issues distilled and argued therefrom are germane and well grounded, as the disregard of the appellants’ application no matter when it was filed or raised had taken the footage off the trial Court and all other rulings, orders and actions made pursuant thereto are nullifies and sitting on collapsible quick sand.
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I must say that it is not surprising that the rush to circumvent this jurisdictional challenge of prime and primus status, has led to the drawing out of an enrolment order even before the delivery of the judgment. This may be a semblance of one of the mid – night wonders of humanity that throws up suspicion and constitute effective fact of the assured law

of carma to prop up evidence of possible bad faith and to negate the presumption of regularity and thus casting a heavy burden on the conscience.

Why must the judex be cast with the avoidable burden of explaining that it might have been a typographical error of the Registrar? I say no more.

My lord, Ariwoola, JSC in his concurring judgment in Ngere v. Okureket XIV (2014) 11 NWLR (pt. 1417) page 14 at page 163 has so lucidly put paid to the sundry issues agitated and stretched in this appeal when His Lordship eruditely and aptly re – stated the position of the law thus:
“The question of jurisdiction may be raised at any stage and even for the first time in the supreme Court. The issue of jurisdiction must be thoroughly examined and finally resolved before the merit of the case can be entertained.
It is trite law that where a Court does not have jurisdiction to entertain a matter, its decision amounts to nothing.
The entire proceedings and decision are void no matter how well conducted. see Madukolu v. Nkemdilim (1962) 2 SCNJLR. 341:
Nwankwo & Anr. V. Yar’Adua & Ors. (2010) 12 NWLR (pt. 1209) 518:6 SGM 121: Chief Oloba V.

Akereja (19881 3 NWLR (pt. 84) 508.
As stated earlier, the issue of jurisdiction can be raised at any stage of the proceedings. Our rules of practice permit this and this Court has stated so over and over again; the indeed the issue of jurisdiction can be raised up to the final determination of an appeal by this Court.
The reason being that the existence or absence of jurisdiction in the Court of trial goes to the root of the matter so as to sustain or nullify the decision or order of the trial judge in respect of the subject matter.
See Obikove V. The Registrar of Companies and Official Receiver of Pool House GRP (1975) 4 SC 31 Adegoke V. Adibi & Anr.(1992) 5 NWLR (Pt. 242 40: (1992) 6 SCNJ,136:”
I must confess, as my Lord Niki Tobi; JSC (of blessed memory) stated in Dagaci Lere V. Dagaci of Ebwa (2006) Vol. 140 LRCN 2114 at 2169 A – F that I am prepared to team, but counsel for the 1st and 2nd respondents and the trial Court did not provide or release to me the benefit of their knowledge on (1) why the entirety of actions taken prior to a suit, during a suit or at all should be set aside when the issues thereon have been so joined

and not yet determined; and without any regard to the determination of a challenge to the jurisdiction of the Court. 2. I wish to be better informed on why an issue(s) in controversy should be delved in and resolved at a preliminary stage.
3. I wondered whether the power to punish for contempt is not meant for the furtherance of justice and protection of the integrity of the Courts and assurance of an ultimate prejudice ? free determination of disputes.
4. I wondered whether contempt in the face of the Court may not be punished instanto, whilst contempt ex – facie curie may be transferred to a different judge (Court) for trial rather that visit same on the substantive matter and even against non party that has neither been joined nor heard contrary to the decision in Green V. Green (1987) 3 NWLR (Pt.61) 480: INEC V. Izuoqu (1993) 2 NWLR (Pt.275) 270 @ 295.

For the aforesaid reasonings, elucidations and thought, I have no hesitation in abiding and applying the stand of this Court as done a while ago in the sister appeal in CA/AK/57/2011 by allowing this appeal on the issues agitated by the appellants and in particular on the issue number 1 thereof

and the respondents issues 1 and 2.

Appeal is allowed.

Accordingly, and in consequence, it is ordered as follows.-
1. The ruling of the trial Court delivered on 18 – 2 – 2011and the purported enrolment Order of 17 – 2 – 2011 in respect thereof are each set aside and quashed by me.
2. It is ordered that the substantive suit no. HOS/71/2010 shall be transferred or reassigned by the learned Honourable Chief Judge of Osun State to another judge other than Adiribegbe, J. which different judge shall hear the matter de novo, taking into account the primacy of the appellants’ application filed on 21 – 1 – 2011.
3. The said appellants’ application how so – ever called, shall be given accelerated hearing.
4. Oba jimoh Oyetunji Olanipekun Larooye II shall remain in office as the Ataojo of Osogbo pending the final determination of the substantive case.
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Costs; parties shall bear their respective costs of prosecuting and defending this appeal.

Other Citations: (2016)LCN/8953(CA)

Chief Ajayi Olowoye Alejo Awe & Ors V. Olajide Akinlolu Ademehinti & Ors (2016) LLJR-CA

Chief Ajayi Olowoye Alejo Awe & Ors V. Olajide Akinlolu Ademehinti & Ors (2016)

LawGlobal-Hub Lead Judgment Report

MOHAMMED AMBI-USI DANJUMA, J.C.A.

This appeal is against the judgment of Hon. Justice C. E. T. Ajama of the High Court of Justice, Ondo State sitting at the Akure Judicial Division, delivered on 25th of March, 2013.

The respondents herein who were plaintiffs at the Lower Court commenced this action against the defendants/appellants by a writ of summons dated and filed 07/06/2010 and a statement of claim dated 02/06/2010. The plaintiffs filed an Amended Statement of Claim dated 01/09/2011 and filed 27/09/2011 claiming jointly and severally against the defendants for the following reliefs:
a. A DECLARATION that the plaintiffs are entitled to the grant of Certificate of Statutory Right or Occupancy over the piece or parcel of farm land lying, situate and being at Ona-Ule Ilere Akure South Local Government which parcel of farmland is otherwise known and called Odo-Igbodudu, Oko-Okuta near Omolegan land, Oko-Okuta Alahere and Oko Aarin which farmland is bounded on the North by late Bayo Omolegan farmland, South by Umojo stream East by Omolegan farmland and late Ayodele Alejoawe farmland, west by Ona-Ule (Road) and at

Oke-Ehinkunle I, Oke-Ehinkunle II bounded on the North by Ibukun Agbakarin Cocoa farmland, South by one Ona Odo Oko, West by Ona-Ule, East by Omolegan/Late Oyedele Cocoa farmlands.
b. N250,000 damages for trespass.
c. N100,000,000 damages for assault/injuries committed on the person of 1st plaintiff.
PARTICULARS OF INJURIES
(i) Bruises over the back
(ii) Tenderness over the right hip
(iii) Fractures of the right clavicle close to the acromioclavicular joint.
PARTICULARS OF DAMAGES
a. Inability to use the right leg effectively (leaping).
b. Inability to stand erect.
c. Inability to perform physical exercises activities, viz jumping, jogging, running, driving, climbing etc
d. Inability to use the right hand for any physical activities etc.
e. Emotional and mental disturbance etc.
f. Loss of livelihood.
d. AN ORDER cancelling, nullifying, setting aside, any sale or sales purportedly made or carried out by the defendants their servants, agents or privies on, over or upon the said parcel or farmland subject – matter of this action, property of the plaintiffs.
e. AN ORDER OF PERPETUAL

INJUNCTION restraining the defendants, whether by themselves, servants agents, privies or whomsoever from trespassing, remaining interfering in whatever manner alienating, claiming the plaintiffs’ parcel of farmland lying situate and being at Ona-Ule Ilere Akure South Local Government which parcel of farmland is otherwise known and called Odo-Igbodudu, Oko-Okuta near Omolegan land, Oko- Okuta Alahere and Oko Aarin which farmland is bounded on the North by late Bayo Omolegan farmland, South by Umojo Stream East by Omolegan farmland and late Ayodele Alejoawe farmland, West by Ona – Ule (Road) and at Oke – Ehinkunle 1, Oko – Ehinkunle II bounded on the North by Ibukun Agbakarin cocoa farmland, South by one Ona Odo Oko, West by Ona Ule, East by Omolegan/late Ayodele Farmlands.

The defendants responded by filing a Further Amended Statement of Defence and counter claim dated 13/02/2012 and filed 25/04/2012 against the plaintiffs praying as follows:
a. A declaration that the defendants’ counter-claimants are entitled to the grant of Certificate of Statutory Right of Occupancy over the piece or parcel of farmland lying, situate and being at Ona Oko Odo left

side of Ilere community bounded on the right by Elere Olagboyegun farmland, on the left by flowing River/Okesi farmland, on the top by lsomo farmland/flowing River, on the Bottom by Odeyemi Farotimi Farmland.
b. N50,000,000 damages for trespass
c. N150, 000, 000 damages for assault committed on the person of the 1st defendant.
d. AN ORDER PERPETUAL INJUNCTION restraining the plaintiffs whether by themselves, servants, agents, privies or whomsoever from trespassing, interesting in whatever manner laying claim to the defendants parcel of land lying situate at Ona oko odo bounded on the right by Elere Olagboyegun farmland, on the left by flowing River/Okesi farmland, on the top by Isomo Farmland/Flowing river, on the bottom by Odeyimi Farotimi farmland.

In the course of the proceedings the plaintiffs called seven (7) witnesses while the defendants had three (3) witnesses who testified by giving evidence before the Court. Written addresses were filed and exchanged between the parties; defendants afterwards replied on points of law and judgment was entered in favour of the plaintiffs on the 25/3/2013.

Dissatisfied with the trial Court’s

decision, the appellants herein approached this Court vide a notice of appeal dated 22/04/2013 and filed 23/04/2013 containing ten (10) grounds of appeal.

In line with the rules of this Court, appellants filed a further amended appellants? brief of argument dated 25/11/2015 and filed 27/11/2015 and was deemed 03/03/2016. Respondents? brief dated 19/10/2013 was filed on the 21/10/2013 while appellants? reply brief is dated and filed 04/11/2013.

Following a motion filed on 02/12/15 which was granted by this Court on 03/03/16 the respondents in view of the notice of cross appeal filed with the leave of this Court on 30/05/15 filed a respondents?/cross appellants? brief of argument dated 16/11/15 and filed 02/12/15 and deemed 03/03/16.

Appellants?/cross respondents? brief of argument dated 25/12/16 was filed on 03/03/16. Counsel on both sides adopted their briefs of arguments on 25/5/2016.
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Appellants formulated the following six (6) issues for the determination of the appeal:
i. Having regard to the plaintiffs’ traditional evidence whether the learned judge properly directed himself when he adjudge

that the plaintiffs discharged the onus and standard of proof in establishing title to the disputed land, grounds 1, 2,3 & 4.
ii. Whether or not the respondents proved boundaries to which the claim was attached, ground 5.
iii. Having regards to the appellants’ pleadings and evidence at the trial, whether or not the appellants proved their case in accordance with law to entitle them to the reliefs claimed ground 6 & 10.
iv. Whether or not the award of Seven Hundred and Fifty Thousand Naira (N750,000) as damages for trespass is based on legal principles in awarding damages, ground 7.
v. Whether the learned judge properly directed himself as to the burden of proof in respect of the award of N5,000,000.00. Having regards to the allegation of crime in issue and the fact that the prayers placed before the Court is not specific on items of damages.
vi. Whether or not the award of Four Hundred and Fifty Thousand Naira (N450,000.00) and One Hundred and Fifty Thousand Naira (N150,000.00) respectively are just and properly awarded according to legal principles, ground 9.

The respondents on their part distilled four (4) issues for the

determination of the appeal to wit:
i. Whether the trial Court is right in holding that the respondents have satisfactorily proved their case and entering judgment in their favour.
ii. Whether the trial Court is right in dismissing the counter – claim of the appellants.
iii. Whether the trial Court is right in award of N5, 000. 000. 00 (Five Million Naira) damages in favour of the 1st respondent for assault resulting in injuries on the 1st respondent.
iii. Whether the award of N750,000.00 damages for trespass in favour of the respondents by the trial Court is justified and proper, based on correct legal principles and whether the award of the sum of N450,000 and N150,000.00 as costs in the suit are justified.

I consider the issues as raised by counsel on both sides to be similar. I shall therefore, be adopting the issues formulated by the appellants for the determination of this appeal; they are so adopted.

ARGUMENTS:
ISSUE ONE:
Having regard to the plaintiffs? traditional evidence whether the learned judge properly directed himself when he adjudged that the plaintiffs discharged the onus and standard of proof in

establishing title to the disputed land. (Ground 1, 2, 3 and 4)

Learned counsel for the appellants began his submissions by referring to Paragraphs 1, 4, 5, 7 , 8,9, 10, 11 and 13 of the plaintiffs’ amended statement of claim as relevant to the 1st issue herein.

He argued relying on the case of Iroagbara V. Uformadu (2009) 11 NWLR (pt. 1153) Page 587 @ 591 that the respondents relied on grant in establishing their title to the land in dispute and thus ought to plead and lead in evidence the root of their title. That the respondents are bound to plead.
a. Who founded the land
b. How the founder founded the land
c. The particulars of the intervening owners through whom he claims. He cited the following cases: Anyanwu V. Mbara (1992) 5 NWLR (Pt.242) 386 @ 390: Akinloye V. Eyiyiola (1968) NMLR 92; Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238 and Adejumo V. Ayantegbe (1989) 3 NWLR (Pt. 110- 417)

It is learned appellants’ submission that Elere of Ilere being a mere title and non juristic is incapable of granting title. That the plaintiffs did not plead names of persons on whom the title to the disputed land devolved since it was

founded. He is of the view that the successor in title as in this case must mention the names of the grantor in order to prove the grant. That failure to so do offends the law.

Counsel argued that it was not sufficient for the PW2, the Elere of Ilere to say that his predecessors granted the land in question. That where title to a disputed land is put in issue, the title must be proved. Counsel referred to: Alade V. Awo (1975) 4 SC 215: Piallo V. Tendo (1976) 12 SC 31 : Kaho V. Woluchem (1985) (Pt.41) 616 and Olanma V. Youdubagba (2006) 2 NWLR (pt. 964) 337 @ 359.

That PW2’s evidence in Chief that Elere gave the land to Akinlolu Ademehinti was contradicted by his evidence under cross – examination to the effect that Elere gave the land to Alejo Awe and Adopetu. He referred to PW2 and DW2’s evidence on pages 58 – 60 and 78 of the record respectively to contend that the learned trial judge did not asses properly the evidence on the record. He cited Mogaji & Ors. V. Odofin & Ors. (1978) 4 SC 91 @ 94 – 96. Learned counsel contended that where a material contradiction exists, the Court cannot pick and choose which set of the evidence to

believe. That the learned trial judge erred in his conclusion that the defect in the evidence of the plaintiffs has been cured by the evidence of PW2.

Learned counsel submits that the trial judge did not place side by side the evidence of PW2 and those of DW2 and DW3 but rather chose that of PW2 in arriving at his decision. His view is that the totality of the parties’ evidence was not examined. He urged the Court to so hold relying on the following authorities: Obadara V. The President Ibadan West District Grade ‘B’ Customary Court (1964) 1 ALL NLR 331: Onwunalu V. Uche (supra): Dagaci of Dere V. Dagaci of Ebwa (2006) 7 NWLR (Pt. 979) 382 @ 452 – 453 Paragraphs G – C.

Learned counsel aver that claimants must prove their case with credible evidence and not rely on the weakness of the case of the defendant; they have the primary burden of proving their case. That he who asserts must prove. He relied on:
– Healthcare Products (Nig.) Ltd. V. Bazza (2004) 3 NWLR (Pt.861) 582 @ 605-606.
– Atunwa V. Cadenike (1998) 7 NLWR (Pt. 557) 221 @ 228 – 227
– Gbafe V. Gbafe (1996) 6 NWLR (Pt.455) 5117.

Counsel submits that it was not judicially

proved that it is the Elere of Ilere that has the authority to grant land. He urged us to hold that the trial Court’s decision on the above issue was unreliable.

It is also appellant’s contention that they have proved possession and ownership of the land in dispute. That they were in possession when the respondents’ mother begged to occupy a portion of the land as Customary tenants. Referring to the evidence of DW1, DW2 and DW3 on the record, counsel argued that a judgment must not only demonstrate a full and dispassionate appraisal of all the issues raised in the pleadings and proved by evidence but must also flow logically from the findings on such issues. He referred to Polcarp Ojogbue & Ors. V. Ajie Nnubia (1972) 1 ALL NLR (pt.2) 226.

Counsel went further to submit that the respondents having not pleaded the names and history of their grantor, have equally failed to establish their case. He contended also that the trial Court?s decision on acts of ownership in favour of the plaintiffs was wrong. He is of the view that where traditional evidence failed, that the respondents’ root of title also collapsed and the Court’s order, he submits

would be that of dismissal. He cited Alhaji Karimu Adisa V. Emmanuel Oyinwola & 4 Ors. Vol. 1 L. L. A. C. 1 @ 4: Odofin V. Ayoola (1984) NSC 711 @ 731. Learned counsel’s argument on acts of possession and ownership as evidence of title to land is that a party relying on same must show that such acts not only extend over a sufficient length of time but that they are numerous and also positive to warrant the inference of exclusive ownership. He stressed that the party must show:
a. That from the overwhelming number of such acts he must have regarded the land as his own; and
b. That from the nature of such their openness and their being exercised without force or stealth any person asserting title would have known of such an exercise and be expected to assert his contrary title. He referred to: Anyanwu V. Mbara (Supra): Ekpo V. lta 11 NLR 68 @ 69: Pairo V. Tenalo (Supra).

Counsel urged us to hold that the respondents’ title had collapsed and that the trial Court’s decision on acts of long possession was in error.
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In reacting to this issue, learned counsel for the plaintiffs’/respondents submits that the evidence of PW1, PW2, PW3, PW4,

PW5, DW1, DW2 and DW3 show that the respondents successfully proved by clear, cogent, credible and satisfactory evidence the area and identity of the farmlands in dispute. He referred to: Kyari V. Alkali (2005) 2 FWLR (pt. 60) 145 @ 149 and Nwokidu v. Okamu (2010) ALL FWLR (Pt. 522) 1633 ? 1637.

Respondents placed heavy reliance on their pleadings to show that there is credible evidence supporting the learned trial Court’s conclusion in their favour; respondents’ counsel contended that the evidence given by PW1 was supported by the evidence of PW2 and which he believes established the respondents’ title to the land in dispute. In an effort to drive home his points, counsel referred to Paragraphs 7, 8, 9, 10, 11 of the amended statement of claim and the evidence of PW1, PW2, PW3, PW5, DW1 and DW2 as supporting the respondents’ evidence that they derived title to the land in dispute by grant from the original owner/founder of the farm land (Elere of Ilere).

That an action for declaration of title to land on grant, the grantor or his successor in title must be called to prove his title. Referred to: Ofume V. Ngbeke (1994) 4 NWLR (Pt.641) 746 @

756.

On further reference to the case of Idundun v. Okumagba (1996) 9-10 SC 6 @ 227. Counsel argued that the respondents have proved their title to the land in dispute by satisfying one of the five ways of proving title law. He urged us to uphold the decision of the learned trial Court. That the pleadings and evidence of the respondents have established that it was the Elere of Ilere who founded the land, how it was founded and the intervening owners. That the Elere of Ilere, the founder off the Land in dispute as agreed by parties, being the traditional ruler and first settler has the sole authority to grant land to people in Ilere.

Counsel aver that the respondents? father and his wife and children cultivated the land undisturbed. That the respondents inherited the said land after the death of their father in 1996 and also had undisturbed possession until 2007 when the appellants came in.

Learned counsel went further to contend that appellants did not deny the existence of the title of Elere of Ilere and that issues were not joined on the pleadings pertaining to the non juristic nature of the title (Elere of Ilere). That DW1 and DW3

acknowledged in evidence the Elere of Ilere (PW2) who testified that his successor in title granted the farmlands in question to the father of the respondents. That DW1 and DW2 also acknowledged in evidence that the Elere of Ilere is the paramount traditional ruler and founder of Ilere town. That the present Elere of Ilere who is recognized as the traditional authority of the community that grants land, testified that his successor in title granted the disputed farmland to the respondents’ father. He referred to Exhibits J and M. Counsel continued by urging the Court to reject the appellants’ arguments on the non- juristic personality of the title “Elere of Ilere” as incapable of granting title to land, having acknowledged same.

On the trial Court judgment, learned counsel submitted that the decision was on the premise that the respondents? father and themselves have been on the land in dispute and did exercised ownership extending over sufficient length of time numerous and positive to infer that the respondents are the true owners, He urged us to so hold. Referred to pages 140 ? 141 of the record that the learned trial Court did arrive

at its decision by also examining Exhibits A, B, C, D, E, F, G, H and K on the record.

Counsel further urged the Court to uphold the trial Court’s decision.

The appellants in their reply brief challenged the evidence of the PW2 that they derived title from their forefathers, the Elere of Ilere. Learned appellant’s counsel referred to page 11 of the record contending that PW2 under cross – examination did admit that he has a maternal relationship with Elere. That it is only the DW3 who is a direct son of Elere Farotimi that can lay claims to the past Eleres as his forefathers. That it does not accord with customs and traditions of Yoruba land for mother’s child from a particular family to lay claims to paternity in another family.

On the evidence of PW1, PW2, PW3, PW5, DW1 and DW3 relied upon by the respondents, that it is a notorious fact that Elere of Ilere is a title of the holder of office of Ilere and that it is ascribed to all the holders who bear different names.
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That the respondents must show by name which of the past Elere granted them land. Relying on the case of Iro – Agbara V. Ufomadu (Supra), learned counsel submits that the

respondents must state the founder of the land, how he founded same and particulars of intervening owners through unbroken chain of succession.

On the case of Ofume v. Ngbeke (Supra) cited by the respondents establishing that grantor or his successor in title in title must be called to prove his root title, appellants? counsel contended that the word ?prove? indicate that it is not sufficient to call the grantor or his successor in title but must be called to establish his root of title. That appellants? evidence as to settlement and their root of title is consistent. Appellants referred to the evidence of DW3 to aver that PW2 does not know the history of Ilere which according to appellants, PW2 admitted in evidence under in evidence under cross-examination. On the award of costs by the trial Court, learned counsel argued that costs awarded by the Court in a judgment form part of Nigeria, 1999. He urged us to hold that the respondents failed in proving title to the disputed land claimed.

RESOLUTION
The law is trite that the standard of proof in Civil cases is discharged on the balance of probabilities or the preponderance

of evidence. Where parties to a suit give evidence on their claims before the Court, the trial judge has the duty of weighing the evidence by resorting to the imaginary scale of justice. S.S. Alagoa. JSC in Odutola V. Mobogunje (2013) 1 SCNJ 175 @ 216 cited the case of Mogaji V. Odofin (1978) 4 SC 91 @ 94 where the Apex Court held to wit: ” —- Before a judge before whom evidence is adduced by parties in a Civil case comes to a decision as to which evidence he believes or accepts and to which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on an imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side of the scale and weigh them together. He will then see which is heavier not by the number of witnesses called by each party but by the quality of the probative value of the testimony of those witnesses.”

It is established principle of law that traditional history is the first mode of proof of title to land. See Idundun V. Okumagba (1976) 10 SC 140.

It is a primary duty on the plaintiff who claims a declaration of title to land

to show the Court clearly the area of the land to which his claim relates so that the land can be identified with certainty. See Section 131, 132 and 133 of the Evidence Act, 2011.

In the instant case, the first plaintiff at the trial Court gave evidence and testified as PW1 along six (6) other witnesses. The other plaintiffs are his brother and a sister. They gave the description of the disputed land as a parcel of farm land situate and being at Ona – Ule Ilere Akure South Local Government known as Odo – lgbodudu, Oko – Okuta near Omolegan land, Oko – Okuta Alahere and Oko Aarin bounded on the North by Umojo Stream, East by Omolegan farmland and Late Ayodele Alejoawe farmland, West by Ona – Ule (Road) and at Oke – Ehinkunle I, Oke – Ehinkunle II bounded on the North by lbukun Agbakarin Cocoa Farmland, South by One Ona Odo Oko, Next by Ona Ule, East by Omolegan/late Ayodele Cocoa farmlands.

This is contained in the plaintiffs’ amended statement of claim on pages 36 – 41 of the record and also PW1 ‘s evidence before the Court on pages 50 – 56 of the record.

Plaintiffs traced their Customary Title to one Akinolu Ademehinti, their father whom

the said land was first given to by the then Elere about 100 years ago. The record shows that Akinlolu Ademehinti had been farming on the said farm land until 1996 when he died and the subsequent inheritance by the plaintiffs who continued to farm on the farm land devoid of any encumbrance or disturbance from the defendants? family until 2007, about 11 years after the death of Akinlolu Ademehinti.

PW2, the current Elere of Ilere who is recognized by witness on both sides, to be the custodian of all land in Ilere, testified before the Court that his predecessors granted the disputed land to Akinlolu Ademehinti, the 1st plaintiff?s father. PW3 a 100 years old wife of Omelagan who by the evidence on record is well known to both sides testified that she shares boundary with the plaintiffs. Her evidence on page 60 of the record is hereunder excerpted: ?my farm is known as Omolegan farm. I share boundary with the plaintiffs. I am the wife of Late Omolegan. We share boundary on Mojo River side and at the foot path to the farm on Omolegan farm.?

Substantially, the above evidence went unchallenged and uncontroverted and which

supports the plaintiffs’ evidence relating to ownership and possession of the land in dispute, having cultivated same undisturbed until 2007 when defendants began laying claims to the land. The question is, where were the defendants during the life time of Akinolu Ademehinti who died at 80 years in 2006? Where were they about eleven years after, until 2007 before coming on the land, a period the plaintiffs continued cultivation of the said land.

The evidence of PW5 was also not discredited, it sailed through unchallenged. This witness testified that at the death of Akinolu Ademehimti, he and two others were nominated by the head of the family to inspect the farms left behind by the deceased. His evidence is hereunder quoted:
When Akinlolu died 3 of us met the people at Ilere to inspect the farms. These people are 1. Olomi Adenira, 2. Adewole Adeniyi and myself. The head of the family who sent us is Olulayo Ademehinti. Nobody opposed our visit and there was no other person who laid claims to the farms. The defendants were there but they made no objection, or adverse claim.?

It is on the record that when trouble

started in respect of the land in dispute, the matter was taken before the present Elere of Ilere who arbitrated on it and ruled that the land belong to the plaintiffs. He also gave evidence before the Court (PW2) in that respect. The appellants herein took the matter before his Royal Highness the Deji of Akure who also arbitrated on it and ruled that the plaintiffs are the true owners of the land in dispute.

PW7 who was the secretary to the Deji of Akure testified before the learned trial Court and tendered Exhibit ‘M’ the decision passed by the Deji of Akure.

The law is trite that a party relying on arbitration under Customary law should plead and convincingly prove that those who presided over the dispute are competent to so do under the law. I feel that the two arbitrations held in respect of this matter were competent. I am convinced by the pleadings and the evidence on record that the plaintiffs were not only in exclusive possession, and enjoyment of the land in issue, they have in my view proved acts of ownership extending over a sufficient period of time numerous and positive enough to warrant the inference of true ownership. I

completely agree with the trial Court where it held on page 139 of the record that; “First there is no evidence that Alejoawe gave land to Odagbabodo. Secondly, Atandara is not shown to have power to grant land as alleged. Put side by side with the story of the plaintiffs that land was granted to Akinolu Ademehimti by the Elere of Ilere and the confirmation of the defendants that it is the Elere that has authority to grant land to those in occupation of the land at Ilere including the forefather of the defendants Alejoawe; the story of the plaintiffs looks to” credible and I am satisfied that the plaintiffs have proved the title to land by traditional evidence.”

This is further supported by the decision of this Court in the case of Duruosihimiri V. Duruodunze (2001) 9 NWLR (pt.717) 244 @ 248 ratio 1 that: proof of traditional evidence does not comprise just cataloging one’s dead ancestors and stating that each of them farmed the land in dispute. Rather, it is the weight of evidence that matters and in proving it, convincing evidence has to be adduced.
It is not enough for the appellants herein to state that the land in question was inherited from

their forefathers without supporting it with clear and convincing evidence. The Elere of Ilere to my mind is not just a mere title as adumbrated by the appellants but a permanent office with powers and authority recognized by the people to be exercised by the occupant as the custodian of the Ilere land.

It is established law that a party relying on evidence of traditional history must plead his root of title. The learned trial Court accepted the traditional evidence of the plaintiff as more probable on the preponderance of evidence. I have gone through the evidence on record and the pleadings and I am also convinced that the plaintiffs? evidence is more probable than that of the defendants. They have been able to prove through evidence and witnesses their root of title thus, acts of ownership and enjoyment of the land in dispute. The Supreme Court held in Oyadare v. Keji 21 NSCQR 58 @ 73 per Niki Tobi, JSC to wit: ?It is good law that a plaintiff who succeeds in proving acts of possession can obtain judgment claiming trespass. Acts of possession and enjoyment of land could be evidence of ownership or of Right of Occupancy. See Okechukwu v.

Okafor (1961) 1 ALL NLR 685. Where a plaintiff proves sufficient acts of possession, the burden is thrown on the defendant under Section 145 of the Evidence Act to prove the contrary. In order to get judgment, the defendant has the onus to rebut the evidence of the plaintiff. Acts of long possession and enjoyment of land can be prima facie evidence of ownership of the particular piece of land within reference to which such acts are done.

I hold that the defendants failed in their effort to rebut the plaintiffs’ evidence on the record. The evidence of all the witnesses including the defendants’ witnesses acknowledging the authority of the Elere of Ilere to grant land supports the case of the, plaintiffs. Infact, DW3 confirmed under cross – examination that the plaintiffs? father Akinlolu Ademehinti was a farmer who had farmland at Ilere and farmed on the land for about 20 years. The evidence of plaintiffs? witnesses relate and are uncontradictory.

This issue is resolved in favour of the respondents and against the appellants.

ISSUE TWO:
WHETHER OR NOT THE RESPONDENTS PROVED BOUNDARIES TO WHICH THE CLAIM WAS ATTACHED (GROUND 5)<br< p=””

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Learned appellants? counsel pointed out Paragraph 4 of the plaintiffs? amended statement of claim as being relevant to this issue. That the boundaries mentioned in the above paragraph were denied in Paragraphs 1, 5 and 27 of the defendants? further amended statement of defence and counter claim . He referred to Paragraph 26 of the said statement of defence and counter claim where the defendants stated their boundaries and praying the Court to declare same in their favour. That the evidence at the trial Court shows the boundaries claimed by the plaintiffs differ with those of the defendants. He submits that the cocoa farm claimed to have been granted to the plaintiffs’ father by the Elere of Ilere was the one in dispute and not the ones the plaintiffs’ father bought.

Counsel referred to the plaintiffs’ evidence on page 55 of the record. He cited the case of Nwabuoke V. Onwordi (2006) ALL FWLR (Pt. 331) 1236 @ 1239 to contend that a party seeking declaration must plead and lead evidence of title to a defined area of land. That the Court cannot choose and pick among various boundaries which one relate to the grant.

Counsel is of the view that the boundaries claimed by the plaintiffs are vague. He urged the Court

to hold that plaintiffs did not establish boundaries upon which a claim for declaration can be attached. He referred to the cases of Baruwa Ogunshola 4 WACA 159; Olusanmi v. Oshosona (1992) 6 NWLR (Pt. 245) 22: Onwuka v. Echala (1989) 1 NWLR (Pt. 96) 182 and Ugbo v. Aburime (1994) 8 NWLR (Pt. 360) 1.

The respondents on their part argued through their counsel that they established with certainty the identity of the disputed land with defined boundaries upon which the trial Court granted them declaration sought. They prayed the Court to uphold the lower Court?s decision.

Learned counsel referred to the respondents? pleadings Paragraphs 3 and 26 (a) of the Amended Statement of Claim in support of his arguments above, describing thee area of the land with boundaries. He also referred to PW1?s evidence on pages 1, 2 and 3 of the record on same issue, that he (PW1) was not even cross-examined on the identity of the farms and their boundaries. Relying on the authority of Adeleke v. Akanji (1994) 4 NWLR (Pt. 341) 715 @ 725.
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Counsel argued that PW2, the Elere of Ilere testified that he knew the land in dispute and PW3 also gave

evidence before the Court that she shared boundaries on two sides of the farm lands were not cross – examined.

That PW5 on page 15 of the records gave evidence of the location of the land in dispute. He said DW1 knows the land in dispute but gave a contrary description while DW2 testified knowing the disputed land. He went further that DW3 testified under cross – examination that he knows the PW3 and that she has boundary with Akinlolu Ademehinti (the respondents’ father).

Learned counsel submits that the evidence of PW1, PW2, PW3, PWs, DW1, DW2 and DW3 clearly established boundaries/identity of the land upon which respondents sought title. He referred to the trial Court?s position on page 138 of the record, urged this Court to so hold.

RESOLUTION
In a claim for declaration of title to land, the law places onus on the plaintiff to prove title to a defined area to which a declaration can be attached. See Nnabuife v. Nwigwu (2001) 9 NWLR (Pt.719) 710 CA; Odesanya v. Ewedemi (1962) 2 SCNLR 23.

The plaintiffs pleaded the description of the land in their amended statement of claim Paragraph 26(a) on page 36 of the record. PW1 who is

the 1st plaintiff while giving evidence before the Court, further identified the land on pages 50-51 of the record and went ahead to buttress that the said land which was given to their (Akinlolu Ademehinti) by the Elere of Ilere was a virgin land which was deforested and had crops like cocoa, kolanut, palm trees, bush mango, bitter cola, pineapples, yam, cocoyam, plantains, banana, etc planted on it by their father. PW1, PW2, PW3 (boundary person to the plaintiffs), PW5 and DW1, DW2 and DW3 all claim to know the land in dispute. While PW1 described the land as “——– in the South by Ona – Odo Oko (Road) in evidence and in their pleadings, DW1 who is the 1st defendant and DW3 described the land as Odo ? Oko also in evidence. See pages 70 -77 of the record. DW2 simply claimed he knows the land in dispute.

From the evidence on record therefore it is clear to me that the land in dispute is known to all the parties. I completely agree with the position of the lower Court where it held on page 138 of the record that; “Here the plaintiffs described with clarity the identity of the farms of their father. The defendants, through DW1, DW2 & DW3 are

quite aware of the land area in dispute even though they described it using different terms”.

This Court decided in the case of Iwuno V. Dieli (1991) 126 in line with the trial Courts position above that “where parties, from the evidence, are clear as to identity of the land in dispute, the fact that different names are given to it or the area it is located cannot affect the case”.
I hold that the above decision applies in this case more so that the law has established boundary dispute to be one and the same thing as dispute over title or ownership of land in dispute. lt was held per Tabai, JSC in the case of Tanko V. Echendu (2011) 18 NWLR (Pt. 1224) 253 @ 255 SG that;
“Even if it is accepted that it is boundary dispute it is, in my considered opinion, one and the same thing as a dispute over title or ownership of the land in dispute. I am unable to find the distinction which the Court below tried to make….”
Thus, I am unable to fault the position of the learned trial Court that the land in question is known to both sides, considering the pieces of evidence on the record. The land was clearly described and in fact, by the position of the

Apex Court in Tanko V. Echendu (Supra). plaintiffs’ title is further supported.

This issue is resolved for the respondents and against the appellants.

ISSUE THREE
HAVING REGARDS TO THE APPELLANTS’ PLEADINGS AND EVIDENCE AT TRIAL, WHETHER OR NOT THE APPELLANTS PROVED THEIR CASE IN ACCORDANCE WITH LAW TO ENTITLE THEM TO RELIEFS CLAIMED (GROUNDS 6 & 10)

Learned counsel is of the contention that the appellants? case having regard to the pleadings on the record, has met the requirements of pleading title by settlement. That the appellants were able to show through their pleadings how plaintiffs? father came into the disputed land through the appellants ancestors. That the relationship between Odogbo, the mother of Ademehinti and Otundara, the wife of Late Alejo Awe who is the 1st, 2nd and 4th appellants?ancestors, is not in dispute and that when linked with both parties is sufficient to show the circumstances which brought the respondents on the land.
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Learned counsel aver that the 3rd defendant ought not to be joined as a

party, as according to him there was no cause of action against him. That the evidence he gave before the Court as on the record is believable and should be accepted. He referred to pages 42 and 44 of the records to show why the 3rd defendant was joined as a party in this suit. Counsel submits that evidence was led in support of the appellants’ pleadings.

He referred to PW2’s evidence under cross – examination to contend that his evidence lend weight to the appellants’ case. He is of the view that the appellants by their pleadings and the evidence proffered have discharged the burden of proof placed on them by law in respect of their claims for title.
He submits that the onus is on the respondents to establish title and not rely on the weakness of the defendants’ case. He relied on the following authorities: Oyenevin V. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265 at 271 and Eva V. Olapade (2011) 11 NWLR (Pt. 1259) 505 @ 508 – 509.
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Learned appellants’ counsel further argued that the appellants are entitled to the reliefs sought in the further amended statement of defence and counter claim having proved traditional evidence by pleading the founder of

the land, how the land was founded and particulars of the intervening owners through whom the appellants claimed. He cited: Anyanwu V. Mbara (Supra): Akinloye V. Eyiyiola (Supra): Olujinle V. Adeagbo (Supra) and Adejumo V. Ayantegbe (Supra) in support of his arguments.

Relying on Section 124 of the Evidence Act, 2011 counsel disagrees with the position of the learned trial Court that where the counter claimants’ claim succeed, no award can be granted for trespass and assault as the counsel did not state whether the damages is in Naira, Dollars etc. That Naira is a Nigerian Legal Tender and a mistake of counsel should not be visited on the litigants. He urged us to so hold.

The respondents responded to this issue in their issue No. 2.01(b) by urging this Court to uphold the learned trial Court’s decision on the basis that the evidence given by the defendants in respect of their root of title is inconsistent unreliable and unsatisfactory to ground the counter claim of the appellants. That they did not lead evidence on title by settlement.
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Counsel excerpted the evidence of DW1 and DW2 on pages 22 and 29 of the record respectively, as follows:<br< p=””

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DW1 – “Our forefather Alejoawe a hunter from Erin -Oke in Ekiti land got to llere where he met llere Olagboyegun who gave him land or the left hand side to the farm”.
DW3 – lt was my father Olagboyegun that gave the land to Alejoawe for farming purpose.?

Respondents? counsel contended against the appellants? assertion that they (appellants) led evidence in support of title by settlement. That evidence led must be in line with pleaded facts.

On the counter claim of the defendants counsel agreed that the position of the learned trial Court on pages 144-145 of the record was correct. That the figures were not stated in words to enable the Court properly assess the claim of the appellants. That is the duty of counsel to ensure pleadings conform with the rules. He referred to Order 25 Rules 4(1) of the Ondo State High Court Rules, 1987 which states to wit?.. dates, sums and number shall be expressed in figures but may be expressed in words.?
?
It is counsel’s view that learned appellants’ counsel was under a duty to state clearly in words what is claimed and in the proper denomination. That the error herein relates

to the conduct of the case and litigants, says he, are bound by the conduct of their counsel. He relied on the case of Bello V. A. G Ovo State (1996) NSCC (Pt. 11) 1257 where it was held that: “The day the Courts allow the inarticulacy or ignorance of counsel to determine the result of an action before it, that day will herald the obtrusive genesis of the unwitting enthronement of injustice by the Courts itself by default.”

The Court was further referred to the cases of Akanbi V. Alao (1983) 3 NWLR (Pt. 108) 171 @ 118.

Learned counsel submits that the trial Court’s position that it does not know if the claimants’ claim was in pounds sterling, Dollars or a Nigerian Naira or in Tubers of yam was proper and not misconceived.

Appellants replied on this issue that the evidence they presented before the Court were not inconsistent. On the issue of settlement counsel referred to pages 24 and 25 of the record where he excerpted DW1’s evidence under cross – examination to wit: Both Olagbogun and Alejo – Awe founded the settlement today known as llere, he came hunting from Erin ? Oke in Ekiti – land but he was a co- founder of llere. I do not know

when my forefathers first settled at llere. I was only told by my father.

Learned counsel further referred to Paragraphs 7 and 8 of the statement of defence and counter claim in support of their arguments. That it was clear how the appellants’ forefathers came and settled at llere, that facts relating to the settlement on the part of llere must be made clear to the Court. Submits that it was by reason of the appellants’ settlement that the family has always held the number two potion with the Adopetu title.

That the pleading relating to settlement and the appellants’ evidence on root of title were consistent. Submitted that parties are bound by their pleadings and that evidence led on unpleased matters go to no issue. He referred to the cases of:
Ojo V. Kamalu (2005) 18 NWLR (pt. 958) 523 @ 536
Adebisi V. Oke (1967) NMLR 64.
Orizu V. Ayaegbunam (1978) 5 SC 21
Kayode v. Odutola (2011) 11 NWLR (pt. 725) 659.
Woluchem v. Gudi (1981) 5 SC 291
Ewaremi v. ACB Ltd. (1978) 4 SC 99.
Udechukwu v. Okwuka (1956) SC NLR 189.

RESOLUTION:
The arguments by the appellants on this issue is that on the pleadings and the

evidence before the Court, they have proved traditional evidence by showing the Court the founder of the land in dispute, how it was founded and the particulars of the intervening owners, entitling them to the reliefs sought. I feel that issue one above where I resolved that appellants are by law required to furnish the Court with cogent and reliable evidence in support of their inheritance through their lineage has taken care of this issue. The evidence of DW1 and DW3 have been found to be inconsistent regarding their lineage in an effort to prove their root of title.

While DW1 gave evidence that the first Elere is Odogboyegun who handed down to Esubi Adebiyi who handed over to Farotimi the father of the DW3 before it finally got the current Elere, the PW2, DW3 confirmed under cross – examination that Adegboyegun is the first Elere but went ahead to testify that there were other Eleres before his father.
?
Hereunder is an excerpt of DW3’s evidence on page 78 of the record. “—–Olagoyegun is the first Elere. Olabosimi was an Elere but I do not know him. Okerusolo was also Elere but I do not know him. I do not know Araromiro. There were other Eleres

before my father.”

This witness (DW3) also testified in evidence as on page 77 of the record, on one hand that Farotimi was his father and in another breath he said “it was my father Olagboyegun that gave land to Alejoawe for farming purposes.?

His evidence as to the number of Eleres that ever existed is not only contrary or inconsistent with the evidence of DW1 but with the pleadings and even Paragraph (e) of the particulars of ground six(6) of the grounds of appeal. The learned trial judge exhaustively dealt with this issue in his judgment on pages 138 and 147 of the record wherein he found the evidence given by the respondents in this regard to be more probable than that of the plaintiffs, which I also believe having thoroughly gone through the record. To avoid repetition therefore, I adopt my position in issue No. 1 above.

It is established law that where findings of the trial judge are not perverse, an appellate Court judge cannot interfere with the findings. See Oyadare v. Keji (supra); E.A.T.B. Ltd v. P.I.C. Ltd. (2013) 12 SCNJ @3.
?
I am not convinced by the arguments of the learned counsel for the appellants that they have

successfully proved their root of title to the land in dispute by showing the founders, how the land was founded and the intervening owners considering the inconsistencies earlier mentioned in the evidence of the witnesses.

On the issue of trespass as contended by the counsel for the appellants, the law is trite that trespass is founded on possession. I have read the evidence on record and the judgment of the learned trial Court and I am satisfied that justice has been done to this issue by the learned trial judge.

I hold that the plaintiffs did prove better root of title than the defendants.

I also hold in respect of the other reliefs claimed by the appellants that the findings of the learned trial Court on pages 141 – 145 of the record was in order and same cannot be faulted.

This issue is resolved for the respondents and against the appellants.

ISSUE FOUR:
WHETHER OR NOT THE AWARD OF SEVEN HUNDRED AND FIFTY THOUSAND NAIRA (N750,000) AS DAMAGES FOR TRESPASS IS BASED ON LEGAL PRINCIPLES IN AWARDING DAMAGES (GROUND 7).

Learned appellants? counsel argued that the respondents herein must establish a better title before

they can be entitled to such damages. That the grant of Seven Hundred and Fifty Thousand Naira (N750,000.00) to the respondents by the trial Court was wrong. He urged us to hold that the respondents failed to establish a better title and hence not entitled to the grant claimed. Referred to the case of Amori v. Iyanda (2008) 3 NWLR (pt. 1074) 250-261.

In response to this issue, learned counsel for the respondents is of the firm view that there is overwhelming evidence before the Court which led it to arrive at its decision.

That the evidence before the Court upon which it based its decision was credible, reliable and uncontradicted. Counsel urged the Court not to disturb the trial Court’s position for reasons that respondents did prove their case entitling them to damages. He referred to the case of Okunrinmeta V. Mrs. Agitan (2002) FWLR (Pt. 100) 137 @ 138.

Counsel concluded on this issue by saying that a claim for trespass is rooted in possession and that the trial Court after a thorough review of the evidence before it was satisfied that the land in question was in the possession of the respondents, hence, proved a better title. He urged us to

so hold.

RESOLUTION.
I have resolved earlier that the plaintiffs herein have proved a better title to the land in dispute as against the defendants/appellants. In a claim for damages, what the law compensates for is the loss incurred by the claimants resulting from the wrong done them by the other parties (defendants in this case). The loss incurres by the plaintiffs must be linked to the alleged trespassers before claimant can succeed in his claim before the Court. See the cases of Zenith Bank Plc v. Ekereuwem (2012) 4 NWLR (Pt. 1290) 207; O.M.T. Co. v. Imafidon (2012) 4 NWLR (Pt. 1290) 332.

The learned trial Court held in its judgment on page 145 of the record that “The claim for trespass is assessed on the damage done to the plaintiffs’ farms and the economic crops and trees on the land. Exhibit K tendered show the extent of damage done to the property of the plaintiffs when the defendants trespassed thereon. I assess damage on the trespass of the defendants at N750, 000. 00 (Seven Hundred and Fifty Thousand Naira) Only.”

The alleged trespass complained by the plaintiffs against the defendants, especially the evidence of PW1 and Exhibit K tendered through the PW4 are impregnable. I find

that the assessment of damages by the learned trial Court is proper.

This issue is resolved in favour of the plaintiffs and against the defendants.

ISSUE FIVE:
WHETHER THE LEARNED JUDGE PROPERLY DIRECTED HIMSELF AS TO THE BURDEN OF PROOF IN RESPECT OF THE AWARD OF N5,000,000 HAVING REGARD TO THE ALLEGATION OF CRIME IN ISSUE AND THE FACT THAT THE PRAYERS PLACED BEFORE THE COURT IS NOT SPECIFIC ON ITEMS OF DAMAGES (GROUND 8).

On this issue, counsel for the appellants referred to the evidence of PW1 and PW6 and the pleadings to argue that allegation of crime has been set out and that respondents must prove same beyond reasonable doubt in order to succeed. He submits that despite the injuries complained about, there was no evidence of police investigation of the alleged crime or the evidence of payments for drugs or treatment at the hospital. He referred to page 54 of the record in order to buttress his point that only analgesic was administered to the patient. That analgesic was not sufficient for the treatment of fractures as described by the patient.

Learned counsel urged the Court to hold that the respondents are not entitled to the

award of N5, 000. 000 (Five Million Naira) having failed to prove the allegation of crime beyond reasonable doubt. Referred to Onuagulushi V. Ndu (2000) 11 NWLR (Pt.679) 517 @ 570: Famuroti V. Agbeke (1991) 15 NWLR (Pt. 189) 1: N. B. Plc. V. Adetoun Oladeii Nig. Ltd. (2002) 15 NWLR (pt. 791) 585 @ 594.

Appellants further submit that the prayer for damages sought were vague. That, prayer placed before the Court needed to be specific, decisive and precise. That, it is not the duty of the Court to embark on a voyage of discovery. He referred to Ozuah V. Ezeweputa (2005) 4 NWLR (pt. 915) 221 @ 241.

That it was not certain whether the damages claimed were special or general damages. He urged the Court to hold that the trial Court erred in granting N5, 000. 000. 00 as damages. Counsel relied on the case of Gbafe V. Gbafe (supra) to stress that the onus of proving a particular fact is fixed by the pleading.
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On the other hand counsel for the respondents in an effort to establish the claim for damages herein referred to the evidence of PW1 wherein he testified on his ordeal in the hands of the appellants and how he sustained degrees of injuries. To

support the case of the PW1, counsel referred to the evidence proffered by the PW6, a medical doctor who confirmed treatment of the PW1 (1st respondent). He tendered Exhibit ‘L’, a medical report through this witness. That the evidence of PW1 and PW6 was not unchallenged in evidence and it was accepted by the learned trial judge. He urged us to so hold and referred to Audu V. Okeke (1998) 3 NWLR (pt. 542) 373 @ 38.

On the issue of allegation of crime, respondents’ counsel is of the contention that it was not directly in issue and that assault is both Civil and Criminal wrong. Counsel further referred to the evidence of PW1 and PW6 to contend that defendants did not deny the allegation of assault.

That in law the evidence of a single witness if credible and uncontroverted is sufficient and that evidence not contradicted or denied is deemed admitted. That the appellants herein neither denied the pleadings nor contradicted the evidence of PW1 and PW6 on the damages suffered. He urged the Court to so hold.
Counsel cited the cases of Ajibare V. Akomolafe (2013) ALL FWLR (Pt. 672) 1689 @ 17000 and Cappa & Dalberto Ltd. V. Akintilo Tilo (2003) 9

NWLR (Pt. 824) 49 @ 61.

RESOLUTION:
The prayers sought by the plaintiffs is for damages sustained as a result of the acts of the defendants. PW1 testified in evidence on page 54 of the record as follows: “On the 13th of March, 2010 l was on the farm when the defendants came to the farm and attacked me with their agents. They lay me flat on the ground and started beating me. I was admitted into the State Specialist Hospital Akure for injuries sustained – bruises on the back, tenderness on my right hip, I sustained injuries on my back, fractures on my right calved close to the acromioclavicular joint since then, I have not been able to walk erect or stand erect and I cannot engage in any physical exercise. I cannot use the right hand effectively for anything. I cannot drive anymore and I suffered both mental and psychological damages and loss of livelihood, also suffered hip dislocation so that I cannot walk on my feet rightly?..?

This evidence was neither challenged nor controverted during cross – examination and the trial judge believed and accepted same. Exhibit ‘L’ was tendered through PW6 who gave evidence that he attended to

the PW1 while on admission on his 3rd day at the hospital. This evidence was also not debunked.

In a matter such as this having, to do with personal injury suffered, there is no doubt that the agony and pain of the sufferer cannot be easily assessed being that it is deeply internalized in the sufferer. The trial Court is faced with challenges of seeing and observing such a pain and agony in order to be able to assess the damages suffered by the party claiming. The appellants? submissions on the evidence of PW6 cannot in my view stand or defeat the evidence on record.

It was held in the case of Ighosewe v. Delta Steel Co. Ltd. (2008) ALL FWLR (Pt. 410) 741 that ?Expert evidence of a medical doctor is not necessary to prove the effect of pain and suffering in a person neither is such evidence necessary in the consequence of any injury which can be visually observed by the Court and the parties to the case in point.?

The learned trial Court held on page 145 of the record to wit: “On the damages claimed for injuries sustained by the 1st plaintiff due to the assault of the defendants, I asses this based on the permanent injury

and deformity suffered by the plaintiff and I award the sum of N5,000,000. 00 (Five Million Naira) only against the defendants in favour of the 1st plaintiff.”

Based on the evidence on the record I find no fault in the learned trial judge’s position as held above. lt was further held in the case of lgbosewe V. Delta Steel Co. Ltd. (Supra) that “Where a party adduced sufficient evidence on reliefs sought by him without any challenge whatsoever by way of cross – examination by the opponent, those facts are therefore deemed admitted and proved.?

On the non specificity of damages as argued by the appellant?s counsel, the law is trite that the proper thing to do in awarding damages in personal injury cases is to make awards for pain and suffering and also for loss of amenities of life under separate heads of damages both falling under general damages. See Ighosewe v. Delta Steel Co. Ltd. (Supra); Straba Construction (Nig) Ltd v. Ogarekpe (1991) 1 NWLR (pt. 170) 733; U.B.A. Plc. V. Achoru (1990) 6 NWLR (pt. 156) 254.

As quoted earlier the damages awarded by the learned trial Court on this issue is for injuries sustained by the 1st

plaintiff due to the assault of the defendants. The trial Court only exercised its duty as provided by law. It is imperative to note that the matter before the Court is Civil, which is decided on the preponderance of evidence. The plaintiffs herein have not activated the Court?s powers to exercise its criminal jurisdiction in this case. The appellants’ argument that crime has been raised and must be proved beyond reasonable doubt does not arise.

I resolve this issue against the appellants and in favour of the respondents.

ISSUE SIX:
Whether or not the award of four hundred and fifty thousand naira (N450,000) and one hundred and fifty thousand naira (N150,000) respectively are justly and properly awarded according to legal principles (ground 9).

Appellants on this issue disagree with the learned trial Court’s award of Four Hundred and Fifty Thousand Naira (N450,000.00) and One Hundred and Fifty Thousand Naira (N150,000.00) respectively in favour of the plaintiffs.

Learned counsel’s argument is that the plaintiffs/respondents do not merit the award by the trial Court as according to him, they failed to prove their root of title,

that the Court by that reason is precluded from awarding such costs in their (respondents?) favour as costs, he says follow events.

Learned counsel urged us to set aside the award and the judgment of the learned trial Court and grant the appellants? counter claim.

On the respondents part, learned counsel argued that ground 9 of the grounds of appeal from where this issue was distilled has to do with the discretionary powers of the Court and thus says he required the leave of the Court.

That the ground and the issue therefrom were misconceived. That the only complain open to a party is either the award of cost was excessive or too low. Relying on the authority of Mobil Production Ltd. V. Monokpo (2011) FWLR (Pt. 78) 1210 @ 1213. learned counsel urged the Court to strike out the ground of appeal and the issue raised from same for the reasons above mentioned.

Counsel further urged the Court to uphold the award of the costs of N450,000. 00 and N150, 000. 00 respectively as cost according to him is awarded to compensate the successful party for loss incurred in the course of litigation. He referred to Registered Trustees of Ifeloju

v. Kuku (1991) 5 NWLR (Pt. 189) 65.

Counsel finally urged the Court to dismiss the appellants? appeal and to uphold the decision of the learned trial Court delivered on the 25th of March, 2013.

In reply to the the respondents, learned counsel for the appellants submits that the appeal herein is against the whole judgment. That cost awarded in a judgment forms part of the said judgment. Counsel referred to Section 241(1) of the 1999 Constitution as amended. That the decision of the Court was not interlocutory but final decision. That the award cannot stand where the root of title fails. He urged the Court to so hold and set aside the award.

RESOLUTION:
The award of damages as established by law is essentially the duty of the trial Court judge. The exercise of such power after a careful and judicial assessment of the damages is discretional. See the case of lgbosere V. Delta Steel Co. Ltd. (Supra): Harka Air Services (Nig.) Ltd. V. Keazor (2011) 13 NWLR (pt. 1264) 320 SC.

The award of N450, 000. 00 and N150, 000. 00 by the trial Court against the defendants and in favour of the plaintiffs were in respect of the costs incurred by

the plaintiffs in the course of litigation and which they succeeded. The Court as I can infer did exercise its discretionary powers which is permissible in law.

It was held in the case of ACB V. Okonkwo (1997) 1 NWLR (pt.480) 194 that “A party cannot appeal on failure of the High Court to award costs without first obtaining the leave of either the Court of appeal or of the High Court. This is the requirement of Section 220 (2)(c) of the 1979 Constitution. In this case, since the 1st respondent did not obtain leave, the ground of appeal in the cross – appeal complaining against costs ought to be struck out and the issue formulated from it becomes a non issue.” The above authority is in tandem with the provision of Section 241(2) (c) of the Constitution of Nigeria, 1999, by which I am guided to opine that the appellant herein must show that the learned trial judge proceeded upon some wrong principles of law or that the award was an entirely erroneous estimate in order to succeed. We shall therefore not interfere with the lower Court’s exercise of discretion in awarding costs which in our view was judicially carried out. See Ladega V. Akinliyi (1992) 2

SC 91: Rewane V. Okotie ? Eboh (1960) SCNR 461.
I agree based on the aforementioned authorities that the ground of appeal and issue formulated therefrom cannot stand. The arguments put up by the learned counsel for the respondents that the only complaints open to the defendants on this issue was whether the costs awarded were too low or excessively high.

Therefore, ground Nine (9) of the grounds of appeal and issue No. 6 emanating from same are hereby struck out.

On the issue of title to the land in dispute as to warrant the award of damages, I had earlier decided on the preponderance of evidence that respondents herein did prove a better title as against the defendants/appellants title.

This issue is resolved in favour of the plaintiffs/respondents and against the defendants/appellants.

Having resolved the six issues in this appeal against the appellant, this appeal fails for lacking in merit. Consequently, the judgment of Hon. Justice C.E.T Ajama of the High Court of Ondo State, sitting at the Akure Judicial Division in Suit No. AK/131/2010 delivered on the 25th of March 2013 is hereby upheld.

Other Citations: (2016)LCN/8952(CA)

Access Bank Plc V. Vicapek International Limited & Anor (2016) LLJR-CA

Access Bank Plc V. Vicapek International Limited & Anor (2016)

LawGlobal-Hub Lead Judgment Report

JAMES SHEHU ABIRIYI, J.C.A.

This is an appeal against the judgment delivered on the 9th March, 2012 in the High Court of Osun State holden at Osogbo wherein the Respondents were the Plaintiffs while the Appellant was the Defendant/Counterclaimant.

The claim of the Respondents against the Appellant was for the following:
(i) A declaration that by the terms and condition of the Forth (sic) Three Million Naira (N43,000,000.00k) Bankers Acceptance Facility agreement entered between the Claimant and the Defendant which agreement was executed by the Claimant at Osogbo on 21st December, 2007, the Claimant is not in any way, form or manner indebted to the Defendant.
(ii) A declaration that by terms of the written agreement between the Claimant and the Defendant the collateral securities for the said facility are the Claimant’s shares at Zenith Bank Plc, Professional shares purchased by the Defendant’s subsidiary Intercontinental Securities Limited and no more.
(iii) An order directing the Defendant to give a true and accurate account of the value of the Claimant’s shares in its

custody at the expiration of the tenure of the said facility and to pay the balance (if any) into the account of the Claimant.
(iv) An order of perpetual injunction restraining the Defendant, by itself, its solicitors (especially Wilson Atirene of the law firm of WILSON ATIRENE & CO) agents, representatives or privies and the Law Enforcement Agents from further harassing embarrassing and arresting the Claimant, its agents representatives or privies as a result of the facilities which is the subject matter of this suit or any matter relating thereto.
(v) The sum of Five Hundred Million Naira Only (N500,000,000.00) being general and special damages for the arrest, assault, defamation, deprivation and tribulation of the 2nd Claimant as a result of the her (sic) arrest detention and humiliation suffered consequent upon her travails on 9th of September, 2009 in the premises of the Eagles Squad of the Osun State Police Command, Osogbo.
(vi) Another sum of N20,000,000.00 being special damage in consequence of the defendants failure or default to sell the shares at the expiration of the tenor of the facility which sum of money would have accrued as

profit on the said date to the 1st Claimant.

PARTICULARS OF SPECIAL DAMAGES
1. Medical bills, drugs and other expenses as (sic) different hospitals N5,000,000.00k
2. Expected profit to the 1st Claimant from Sales of shares within N20,000,000.00k
GENERAL DAMAGES N495,000,000.00k
TOTAL N520,000,000.00k

The Appellant’s counterclaim against the Respondents was for the following:
a. The Sum N83,931,930.10 (Eighty Three Million Nine Hundred and Thirty One Thousand Nine hundred and Thirty Kobo) as at 31st day of July, 2010.
b. Claim of 17% on the sum of N83,931,930.10 (Eighty Three Million Nine Hundred and Thirty One Thousand Nine hundred and Thirty Kobo) from the 31st day of July 2010 until judgment of the Court is pronounced.
c. Claim of 10% per annum on the adjudged sum until the judgment sum is finally liquidated.
d. DECLARATION that in the event that the value of the Zenith shares over which defendant exercise a lien does not completely pay off the adjudged sum, the defendant shall be entitled to sell whatever asset of 1st claimant available.

The case of the Respondents through their lone witness was that

the 1st Respondent was and still is a customer of the Appellant. By an agreement between the parties the Appellant advanced the sum of N43 million which was to be transferred to Intercontinental Securities Limited for the purchase of shares. The 1st Respondent was asked to submit an irrevocable letter authorizing the Appellant to sell the existing shares and remit the proceeds to its account and it complied. The Respondents also executed a document authorizing the Appellant to sell the pledged shares.

The tenor of the facility was six months and it therefore lapsed on 1st June 2008 which was the point at which the lien became enforceable.

Instead of the Appellant enforcing the lien, it held on to the shares purchased by its subsidiary Intercontinental Securities Limited until the stock exchange market started crashing on or about the 25th July 2008.

Repayment was conditioned upon the following factors;
(a) The exercise of power of sale of the shares by the Appellant immediately the value of the shares fell by 15% or
(b) The sale of the shares by the Appellant at the expiration of the six months tenor.

That if the Appellant had

complied with the terms of the agreement by selling off the shares 25 days from the end of the transaction or at the expiration of the tenor on 1st June 2008, the whole facility would have been paid up and the Respondents would have got not less than N20million as profit and the Respondents are not indebted to the Appellant.

Notwithstanding this, the Appellant through its agents have subjected the Respondents to a regime of harassment claiming that the Respondents were owing the sum of over N58,297,111.

That on 9th September, 2009 policemen from Police Eagle Squad Osogbo picked the 2nd Respondent upon the complaint of the Appellant and she was detained for nine hours consequent upon which she was admitted in the hospital and she spent N5million on medical treatment.

The defence of the Appellant and evidence in proof of the counterclaim through a sole witness was that sometimes in 2007; Elder M. A. Ojo approached the Appellant to enquire how his company could benefit from the I – margin facility of the Appellant. Elder M. A. Ojo is the promoter the 1st Respondent.

The 1st Respondent later sent in a letter to the appellant requesting for

N43million loan to purchase Zenith Bank Plc Shares. The Respondents promised in the letter to repay the loan within 6months subsequently the parties entered into an agreement dated 21st December, 2007 by which the Appellant advanced a loan of M3million to the Respondents at 17% interest per annum.

That it was never an undertaking between the parties that the repayment of the loan was conditioned on the sale of the Zenith Bank shares and no more. That the word collateral was never used in the agreement.

That the Appellant was never negligent or liable in damages to the Respondents for failure to sell the shares when share prices started dropping.

That it was not possible to sell the shares without the shares’ certificate. That after the shares’ certificate was out Elder M. A. Ojo stealthily collected it from Zenith Bank Plc through his brother working at Zenith Bank. This deprived the Appellant of the opportunity of selling the shares.

The Appellant had to apply again to Zenith Securities for re-issue of another certificate.

That the 1st Respondent was indebted to the Appellant in the sum of N85,931,930.10 as at 31st October 2010 which

it has failed to pay despite entreaties necessitating the appointment of a recovery agent.

That the purported harassment of the 2nd Respondent was not approved by the Appellant.

After considering evidence led by both parties and addresses of their counsel the lower Court entered judgment in favour of the Respondents and dismissed the counterclaim of the Appellant.

Dissatisfied with the decision of the lower Court, the Appellant approached this Court by an initial notice of appeal dated and filed 14th May 2012. With leave if this Court granted on 3rd June 2015, the Appellant filed an amended notice of appeal dated and filed 4th June, 2015. The amended notice of appeal contains ten grounds of appeal from which the appellant presented the following four issues for determination:
i. Can the learned trial judge be justified in law for making use of and heavily relying on, the PW1’s Statement on Oath when PW1 admitted under cross-examination that she signed the said Statement on Oath in her office?
ii. Was the trial judge correct in law to have held the Appellant liable for the tortuous acts of Wilson Atirene, Esq. of counsel and, on the

basis of that holding, to have awarded N20,000,000.00 (Twenty Million Naira) general damages against the Appellant?
iii. Whether the learned trial judge came to a right and correct decision in awarding any of the reliefs claimed by Plaintiffs/Respondents.
iv. Whether the learned trial judge reached a right and correct decision when he dismissed the Counter-Claim of the Appellant.

The Respondents on the other hand formulated the following issues for determination :
(1) Whether the learned trial judge was wrong in holding that the Appellant has breached the condition of the contract between her and the Respondents.
(2) Whether the learned trial judge was wrong in holding the Appellant liable for the acts of her agent which has occasioned injury on the 2nd Respondent.
(3) Whether the learned trial judge was wrong in making use of the evidence of PW1, a victim of the wrongful act of the Appellant’s recovery Agent in the determination of this case.
(4) Whether the learned trial judge was wrong in dismissing the counter-claim of the Appellant.

The appeal was thus argued on the following briefs:
1. Appellant’s Brief of

Argument dated and filed on 4th June 2015 settled by Solomon S. Wada Esq.
2. Respondents’ Brief dated and filed on 25th February 2016 settled by S. O. Popoola Esq.

Arguing the appeal learned counsel for the Appellant referred the Court to evidence of the Pw1 under cross-examination to the effect that she signed her written statement on oath in her office. The office of the Pw1, it was submitted is not the Registry of the lower Court. The implication of the admission of Pw1 that she signed the written statement on oath in her office, it was contended, is that it is inadmissible because it was made contrary to Section 117 (4) of the Evidence Act 2011.

On issue 2, it was submitted that the holding by the lower Court that the Appellant was liable in damages in the sum of N20million in favour of the Respondents is erroneous in law on the following grounds:
Firstly, the Appellant denied in the pleadings any responsibility for the action of Barrister Wilson Atirene against the Respondent. The burden of proof was then cast on the Respondents to aver to facts and produce evidence of the complaint lodged with the police vide a certified true copy of

the complaint made to the police or subpoena the appropriate police officer to give evidence.]

The 2nd Respondent, it was submitted did not prove that she was detained by the police for nine hours in view of the Appellant’s defence in the pleading that “Barrister Wilson Atirene was engaged not to use illegal means nor police services in the recovery of the loan but to apply his professional skill…… to recovery the debt.”

The Appellant, it was submitted, could not be held responsible for the acts of Barrister Wilson Atirene. We were referred to Labode v. Oyubu & Anor (2001) 3 SC 15 at 41.

It was further submitted that although Exhibits D and D4 were tendered by the parties, the effect they were intended to have in the case of the Respondents were never pleaded nor canvassed and tested in oral evidence. That Exhibit E was not even pleaded and should be discountenanced. We were referred to N.N.P.C. v. A.I.C. (2001) 49 WRN 140 at 158.

The Respondents, it was submitted, impliedly abandoned the issue of police harassment, arrest and detention as it was not made an issue in the address at the lower Court.
Exhibit D7, it was submitted,

was pleaded by the Appellant to show that Wilson Atirene was employed to recover the debt by means of his professional skill as a solicitor and not by unlawful means.

On issue 3, learned counsel for the Appellant relied on his arguments on issues 1 and 2 and submitted further that the Respondents ought but failed to plead facts and give evidence of the value of the shares in the capital market as at 1st of June 2008 which the Respondents averred should have been the time for the sale of the shares. They also ought but failed, to plead and give evidence of what would have been the value of the shares as at 1st of June, 2008. It was submitted that it is the difference in the value of the shares at the point of sale and at the point of purchase that will enable a reasonable Tribunal come to a sound decision that the value of the shares as at 1st June, 2008 was enough to pay off the loan of 43million plus the interest element of 17% per annum and that the 1st Respondent is not in anyway, form or manner” indebted to the Appellant. It was submitted that the declaration by the lower Court that the 1st Respondent is no more indebted to the Appellant is faulty

having regard to paucity of pleaded facts and evidence.

It was submitted that if the first declaration granted by the lower Court is set aside, the 6th relief on special damages should also be set aside.

It was submitted that it was erroneous for the lower Court to have granted the 6th relief for special damages which was for not less than twenty million Naira as profit from the transaction. Special damages, it was submitted do not lend themselves to speculative figures but are with scientific exactitude. We were referred to Joachin E. Oseyomon & Anor v. S. O. Ojo (1997) 7 SCNJ 365 at 386.

It was submitted that there was neither pleading nor evidence from the respondent on (a) the total unit shares the Appellant bought for the 1st Respondent, (b) the price of each unit share; (c) the prevailing market price per unit share at the time the Appellant ought to have sold the shares; (d) the profit on each share and (e) the profit unit share multiplied by total shares to give the figure of special damages.

It was submitted that in the absence of these figures in evidence, the lower Court was in error in awarding N20million damages. The Court

was referred to Sinyeofori A. Umoetuk v. Union Bank of Nigeria Plc (2002) 3 WRN 62 at 79.

The lower Court, it was submitted, granted special and aggravated damages even though the Respondent did not ask for aggravated damages.

It was submitted that to give a right meaning to the intention of the parties in Exhibit C, the lien on the shares is a security and not a collateral security. The collateral security is the three channels of repayment mentioned in Exhibit C.

The Court was urged to set aside the second declaration granted to the Respondents.

It was submitted that the lower Court had granted relief three by making an order that Appellant give a true and accurate account of the value of the respondents’ shares in the custody of the Appellant at the expiration of the tenure of the said facility and to pay the balance (if any) into the account of the Respondents.

It was submitted that on the face of Exhibit D7 it was inequitable for the Respondents to have gone to Court at all and it was erroneous for the lower Court to have ordered the Appellant to give account of the property both parties had by their own hands surrendered in

writing to a third party.

On issue 4, it was submitted that the accuracy and correctness as well as the exactness of the sum of N83,931,930.10 contained in Exhibit D3 were not rebutted neither by the evidence of Pw1 nor controverted under cross-examination of DW1 who gave evidence that he was aware that the 1st Respondent was indebted to the Appellant in the sum of N83,931,930.10 as at 31st June 2010 and that the 1st Respondent refused to pay of the huge indebtedness despite several entreaties. The lower Court, it was submitted, ought to have received this piece of evidence.

It was submitted that no evidence was proffered on the averments in the Respondents’ Reply to statement of Defence and Defence to counterclaim. The Reply to the statement of defence and defence to counterclaim was therefore abandoned.

It was submitted that the evidence of DW1 was cogent and credible enough to support the Appellant’s claim for N83,931,930.10.

It was submitted that from the evidence of DW1 under cross examination, after the expiry of the tenure the loan was not cleared up and Exhibit D3 was generated for the period Exhibit D3 covered. It was the Appellant

who needed Exhibit D3 for proving the counterclaim it was argued.

The Respondents, it was submitted, did not make any issue in their pleadings on the statement of account.

Exhibit D7, it was submitted, was a joint memorandum for a lien to be placed on the shares. From 9th September 2009 the shares had been moved into a CSCS reserve lien account and had been removed from the custody of the Appellant. We were referred to the evidence of DW1 at page 327 lines 4-6 of the record.

The lower Court, it was further contended, erred in dismissing the counterclaim because the Appellant did not observe the terms of the contract. This is so because the DW1 at page 125 of the record stated that it was not possible to sell the shares as the certificate with which to sell the shares was not issued until after six months of the purchase and the prices had started dropping then. That Elder M.A. Ojo the alter ego of the 1st Respondent through a proxy stealthily collected the certificate and hindered the Appellant from selling the shares. That the Appellant had again to apply for another certificate.

The above piece of evidence, it was submitted, was not

controverted. Therefore the lower Court was wrong to have concluded that the Appellant did not observe the terms of the contract. We were referred to Asafa Foods Factory Limited v. Alraine Nig. Limited & Anor (2002) 52 WRN I at 17.

It was finally submitted that from the pleadings and oral evidence the Appellant proved the counterclaim.

Respondents’ issue 3 is the response to Appellant’s issue 1, issue 2 of the Respondents is the response to Appellant’s issue 2, Respondents’ issue 1 is the response to Appellant’s issue 3 while Respondents’ issue 4 is the response to Appellant’s issue 4.

On issue 3 formulated by Respondents, learned counsel for the Respondents submitted that once the Commissioner for Oaths signs an affidavit as sworn before him, there is a presumption of regularity until the contrary is proved.

It was submitted that a written statement on oath is different from other categories of affidavit which are concluded with the signature of the Commissioner for Oaths and the stamp of the Court. That a written statement on oath is filed along with the case while the deponent still has to enter the witness box and swear before the

Court, the deponent will adopt statement on oath inside the witness box and will be cross-examined by the opposing counsel. The provision of Section 117 (4) of the Evidence Act, it was submitted, does not validate a written statement on oath until the witness adopts same in evidence and is subjected to cross-examination by the opposing counsel. The written statement on oath, it was contended, remains a mere piece of paper where the witness is not available to give evidence on oath and all the facts therein are deemed abandoned when no evidence is given by the deponent despite the compliance with Section 117 (4) of the Evidence Act. The provision of Section 117(4) of the Evidence Act, it was submitted, is not strictly applicable to a written statement on oath since the witness must of necessity take another oath before the Court before the adoption of his or her written statement on oath.

The Pw1 in this case, it was contended, swore on the Bible in the open Court and adopted her written statement on oath and this procedure has ruled out the possibility of the Pw1 not being the maker of the statement on oath or not being the deponent therein. Therefore the

lower Court was right in making use of the written statement on oath of the Pw1 and relying on same in the determination of this case.

It was contended that the fact that the Pw1 said under cross-examination that she signed the written statement on oath in her office is not conclusive evidence that she did not sign her signature before the Commissioner for Oaths. That Appellant’s counsel did not ask the Pw1 how the signature of the Commissioner for Oaths appeared on her written statement on oath.

On issue 2, learned counsel for the Respondents asked whether the Appellant was right to appoint a debt recovery agent in respect of the alleged debt of the Respondents. In other words whether the Respondents were actually indebted to the Appellant at the time the Appellant appointed a debt recovery solicitor for the recovery the alleged debt of the Respondent.

It was submitted that the appointment of a debt recovery solicitor in respect of the Respondents’ alleged debt was wrong ab initio as there was no debt for the solicitor to recover from the Respondents on behalf of the Appellant instead it is the Appellant that should give an account of her

management of the Respondents’ shares in her custody subject to the contractual agreement between them. Appellant it was contended cannot recover any debt from the Respondents until it renders account of the N43million shares of Zenith Bank Plc purchased under Bankers Acceptance Facility which is a product of the Appellant.

Since the appointment of a Debt Recovery Solicitor by the Appellant to recover the alleged debt from the Respondents under the Bankers Acceptance Facility was wrong ab initio, it was contended, it was unwarranted and constituted further breach of the contractual agreement under the Bankers Acceptance Facility which was governing the relationship between the parties. It was further contended that none of the steps taken by the Appellant’s Recovery Solicitor can be right because of the wrong foundation upon which his appointment stood. That there is little wonder that the solicitor acted in a manner that occasioned injury on the Respondents especially the 2nd Respondent.

The action of the Debt Recovery Solicitor, it was argue, was not unconnected with the nature of the appointment and the instruction which he received from the

Appellant. That the letter of appointment speaks volumes. The letter of appointment of the Debt Recovery Solicitor to the Respondent was direct reaction to the letter of appointment which gave the solicitor an extremely limited time for the recovery of the debt. That the solicitor was bound to act the way he acted in order to satisfy the Appellant as the Appellant did not give the solicitor any space of time to take a civil action for the recovery of the Respondents’ debt.

On issue 3 which is Respondents’ issue 1, it was submitted that the agreement between the Appellant and the Respondents is governed by a written contract Exhibit C.

It was submitted that the maximum time for the determination of the contract was 180 days or six months as provided by Exhibit C. However, the period for the determination of the contract may be shorter as there was a provision in the contract which gave the appellant absolute power to sell off the 1st Respondents shares whenever the price dropped by 15%.

The N43million loan, it was submitted, was in the custody of the Appellant and was never handed over to the Respondents. Also the purchase of 1,000,000

shares of Zenith Bank Plc with the said loan was also the obligation of the Appellant to perform.

It was submitted that the failure of the Appellant to sell the Respondents’ shares at the expiration of 180 days provided by the contract is a breach of a fundamental condition of the contract and the lower Court was right to hold that the Appellant breached the condition of the contract between her and the Respondents. We were referred to Oceanic Bank v. Chitex Ind. Ltd (2000) FWLR (Pt 4) 678 at 693 and 695, Ndinwa v. Igbinedion (2000) FWLR (Pt 30) 2673 at 2687.

The plea of frustration, it was submitted, is not available to the Appellant as the contract between the Appellant and the Respondents was never prematurely determined and there was no intervening event or circumstance that affected the contract.

It was submitted that the lower Court rightly observed that the name of the proxy who stealthily collected the certificate would have been mentioned in the appellant’s pleading and evidence hence there is no evidence in support of the allegation and what is more the Appellant is still keeping the shares over seven years after the expiration of the

contract.

The Appellant, it was submitted, was negligent in the fulfillment of her obligation under the contract and had breached a fundamental term of the contract by not selling the Respondents’ shares at the end of the tenure of the contract until the price of the shares crashed at the stock market

The Respondents, it was submitted, are entitled to damages for breach of contract and the lower Court was right to award damages.

On issue 4, learned counsel for the Respondents submitted that the arguments of the Appellant in favour of the counterclaims are misconceived. That the arguments are only relevant to conventional loans being given by the bank and handed over to the debtor to be used according to the debtor’s wishes. That the Bankers Acceptance Facility was never handed over to the debtor. The Appellant bought and managed the shares bought for and on behalf of the Respondents under an agreement called the Bankers Acceptance Facility which gave the Appellant the management and control of the collateral security of the loan which are the Zenith Bank Shares bought by the Appellant with the loan. The Appellant, it was submitted, had the duty

of observing strictly the terms of the agreement in her own interest and also in the interest of the Respondents. That there is no doubt that the Appellant breached the terms of agreement between her and the Respondents by holding on to the Respondents’ shares beyond the time provided by the agreement.

It was submitted that assuming but without conceding that the plea of frustration of the contract put up by the Appellants succeeds, it is the law that where there is frustration the question of breach will not arise as none of the parties can be held responsible for what happens.

In any case it had earlier been argued that plea of frustration is not available to the Appellant in this case as there was nothing outside the contemplation of the parties that happened between the initiation of the agreement and the expiration of the tenure provided by the agreement.

Learned counsel for the Appellant argued forcefully that the lower Court erred when it relied on the written statement on oath of the only witness for the Respondents when the witness said under cross-examination that she signed the written statement on oath in her office. But the written

statement on oath of the witness is shown to have been signed before the Commissioner for Oaths in the High Court of Osun State. It is the law that when any judicial or official act is shown to have been done in a manner substantially regular it is presumed that formal requisites for its validity were complied with. See S.150 (1) of the Evidence Act now S.168 (1) of the Evidence Act 2011. There is a legal presumption that judicial and official acts have been done rightly and regularly until the contrary is proved. See Amala v. State (2004) LPELR – 453 (SC) and (2004) 12 NWLR (Pt 888) 520.

As the written statement on oath in this case is shown to have been deposed to before the Commissioner for Oaths, High Court of Osun State I am afraid I cannot accept the argument of learned counsel for the Appellant that the said written statement on oath should have been discountenanced by the lower Court.

On the presumption of regularity enjoyed by the written statement on oath of the Pw1, the lower Court did not need to look for evidence outside the Court to rely on it. If the lower Court looked for evidence outside the Court to confirm the regularity of the

statement on oath as learned counsel for the Appellant argued that was wrong. However this did not affect the decision of the lower Court to rely on the written statement on oath.

Issue 1 is therefore resolved in favour of the Respondents.

Turning to issue 2, the Pw1 in her written statement on oath deposed as follows in Paragraphs 28 and 29:
28) That on 9th September 2009, Policemen from the Police Eagle Squad, Osogbo picked me up on the complaint of the Defendant/Respondent and I was detained at the custody of the Police for about 9 hours.
29) That upon my release at about 11.30pm on that day, I ran into a coma and was rushed down to Government House Clinic, Osogbo where I was put on admission for three days.”

On this evidence, the lower Court in its judgment at page 365 of the record of appeal stated in part as follows:
“There is no evidence too that the Defendant ever made any formal request for the repayment of the loan from the 1st Plaintiff before the 9th September 2009 when the police invaded the office of the Plaintiff and took the 2nd Plaintiff into their custody on account of the alleged indebtedness of the

1st Plaintiff. The action of the police was provoked by Messrs Wilson Atirene & Co. whom the Defendant employed as debt recovery solicitor. The Defendant has claimed as part of its defence that the instructions given to Messrs Wilson Atirene & Co did not include the use of force.”

From the pleadings and Paragraphs 28 and 29 of the written statement on oath of the Pw1 reproduced above, there was no basis for the finding of the lower Court that the police invaded the office of the plaintiff. It was not pleaded and Pw1 never suggested in the written statement on oath that she was picked from the office. Secondly although, it was pleaded in the amended statement of claim and the Pw1 reiterated in the written statement on oath Paragraph 28 reproduced above that she was picked upon the complaint of Appellant and detained in police custody for about 9 hours, the lower Court found that the action of the police was provoked by Messrs Wilson Atirene & Co whom the Appellant employed as debt recovery solicitor. Again there was no basis for the above finding.

There was no evidence before the Court to show that the Appellant made a complaint

to the police, as the Respondents’ witness claimed. No police extract was tendered in proof of this fact. As I pointed out earlier, the Pw1 did not say that she was picked from the office. She did not say where she was picked from. Although she claimed to have been released at 11.30pm; she did not say when she was arrested to arrive at the 9 hours she purportedly spent in custody and what type of custody. Was she detained behind the counter or in a police cell?

On the pleadings and evidence led by the Respondents it did matter who the Respondents say instigated the purported arrest of the Pw1 between Appellant and Messrs Wilson Atirene & Co since no evidence was led to show that she was ever arrested.

Furthermore, even if there was evidence that Barrister Wilson Atinere caused the arrest of the 2nd Respondent, that certainly was outside the brief given by the Appellant which was to recover what it considered was its debt.

Also Barrister Wilson Atirene or Wilson Atirene & Co who are supposed to know that the police is not a debt recovery agent, was not made a party to the case by the Respondents.

In my view issue 2 should be resolved

in favour of the Appellant.

I therefore resolve it in favour of the Appellant.

On issue 3, it appears to me that the lower Court erred when it granted the first relief which was for a declaration that the Respondents were not in anyway indebted to the Appellant when the value of the shares in the capital market as at 1st June, 2008 was not established on the pleadings and evidence led by the Respondents. The Respondents failed to lead evidence to establish the value of the shares in the capital market as at 1st June 2008 when they said the tenure of the agreement ended. They also failed to plead or lead evidence to show the difference in the value of the shares as at 1st June 2008 and the sum of N43million which was the value of the shares at the time of purchase.

It is the difference in the value of the shares at the point of sale, that is, 1st June, 2008 and at the time of purchase, that is when Exhibit C was executed that would enable the Court arrive at a sound decision as to whether the value of the shares as at 1st June, 2008 was enough to pay off the loan of N43million plus the interest of 17% per annum and that the Respondents were not in

anyway, form or manner indebted to the Appellant.

As there was no basis for the grant of the first relief, relief 6 would not stand since it depended on the success of relief 1.

Furthermore, the lower Court ought not have granted relief six which was for special damages, It is trite law that special damages must be pleaded with particularity and must be strictly proved. See Okunzua v. Amosu & Anor (1992) LPELR – 2531 (SC); 1992 NWLR (Pt 248) 416.

Relief VI of the amended statement of claim reproduced again immediately hereunder reads as follows:
“Another sum of N20,000.000.00 being special damages in consequence of the Defendant’s failure or default to sell the shares at the expiration of the tenor of the facility which sum of money would have accrued as profit on the said date to the 1st Claimant.”

In Paragraph 23 of the amended statement of claim the Respondents pleaded thus:
“Claimant avers that if the Defendant had (as provided for under the operating agreement) executed the lien and perfected the agreement it would have received not less than N20,000,000.00 as profit from the transaction.”

It is clear from the

pleadings of the Respondents particularly of the Respondents’ Paragraph 23 of the amended statement of claim reproduced above that relief 6 was not pleaded with particularity. As shown elsewhere in the judgment it was not strictly proved. It was not even proved. A claim for special damages does not lend itself to speculative figure as in this case.

It was not pleaded and no evidence led to establish:
a) The total unit shares the Appellant bought for the Respondent;
b) The price of each unit share;
c) The prevailing market price per unit share at the time the Appellant ought to have sold the shares;
d) The profit on each share; and
e) The profit per unit share multiplied by the total shares to give the figure of special damages claimed.

In the absence of these figures in evidence, the lower Court erred in awarding the sum of N20million special damages.

In addition, the 6th relief which is a claim for exactly N20million special damages contradicted the averment in Paragraph 23 of the amended statement of claim reproduced above which put the profit as not less than twenty million.

There is also another problem with relief 6

granted by the lower Court. While the Respondents asked for N20million as special damages, the lower Court granted the said sum as special and aggravated damages. A Court may grant less but not more than is asked for by a party. There was no basis for the award being granted for aggravated damages as well when the Respondent only asked for the amount as special damages.

The same virus has inflicted relief 2. The 2nd relief ended with the words no more. The lower Court amended the relief by adding the following:
“….. except the case flow and other sources of income of the 1st Claimant/Plaintiff. However since the valued of the shares would have been sufficient to repay the loan as at 1st June, 2008 if the Defendant had complied with the terms of the contract the claimant/plaintiff is no longer indebted to the Defendant.”

The above amendment to relief 2 helped the case of the Respondents to the extent that the lower Court held that the value of the shares as at 1st June 2008 were held to be sufficient to repay the loan and that the Respondents were no longer indebted to the Appellant.

Furthermore, relief 2 in the language it was granted

failed to consider Exhibit C which stated that repayment of the loan shall be from:
i) Cash flow from the 1st Respondent;
ii) Proceeds of sale of the shares; and
iii) Other sources of 1st Respondents’ income.

For the foregoing reasons relief 2 granted should be set aside.

However, I see nothing wrong with relief 3 granted by the lower Court to the Respondents. The shares were bought for the 1st Respondent by the Appellant and were to be sold by the Appellant within six months of purchase or when the value went down by 15%. The lower Court rightly found that the shares have still not been sold. Relief 3 was appropriate in the circumstances. I do not see how Exhibit D7 could be a bar to the grant of relief 3.

Issue 3 is resolved partly in favour of the Appellant and partly in favour of the Respondents.

On issue 4, it is clear from the terms of the facility that what the Appellant granted to the 1st Respondent was not a conventional loan wherein money was given to the 1st Respondent by the bank to use as the debtor wished. Under the facility the Appellant bought and managed the shares for the 1st Respondent. The shares were to

be sold by the Appellant for the 1st Respondent within six months or when the value of the shares went down by 15%. The shares were not sold as agreed.

I am in agreement with learned counsel for the Respondents that Appellant could not determine whether the 1st Respondent was owing the Appellant any money until the 1st Respondent’s shares which the Appellant bought for the 1st Respondent were sold.

In my view the counterclaim was rightly dismissed by the lower Court.

Issue 4 is resolved in favour of the Respondents.

The appeal succeeds in Part.

The judgment of the lower Court dismissing the counterclaim of the Appellant is affirmed.

The order of the lower Court granting relief 3 of the Respondents’ claim is affirmed.

Reliefs 1, 2, 4, 5 and 6 granted by the lower Court to the Respondents are hereby dismissed.

Parties to bear their respective costs.

Other Citations: (2016)LCN/8951(CA)