Alhaji S. F. Balogun V. Z. R. Oshunkoya (1992)

LawGlobal-Hub Lead Judgment Report

OGUNDERE, J.C.A.

Before Ajibola J. at the Ijebu-Ode Judicial Division of Ogun State, the plaintiff, now appellant sought a declaration that he is the owner of, and the person entitled to a Certificate of Occupancy of a moiety of Oshunkoya family house and land situate at No.7 Ebumawe Street, Ibipe Quarter,Ago-Iwoye.

The plaintiff also sought possession of the said property and an injunction to restrain the defendant, his servants and agents from entering upon the land and from undertaking any building construction thereon.

Pleadings were filed and exchanged. In the statement of claim the plaintiff averred that the parties are brothers of the full blood; their father’s name was Oshunbanjo, and the defendant was the elder brother. Oshunbanjo himself had a brother of the full blood called Oshuntoye, both being descendants of Oshunkoya.

The genealogical tree of the parties is as follows:-

Oshunkoya

Oshunbanjo Oshuntoye

Z. A. Oshunkoya S. F. Balogun Juliana Chief S. A.

(Defendant) (Plaintiff) Oshuntoye Oshuntoye

(Head of the family)

When Ago-Iwoye was founded, their Grandfather Oshunkoya settled on a parcel of land at Ibipe quarters and built a mud-wall bungalow thereon.

The said land is a combination of the areas edged Blue and Red on the Survey plan Exh. “A”. On the demise of Oshunkoya, his land was partitioned between his two children Oshunbanjo and Oshuntoye. The parcel of land edged Blue was allotted to Oshuntoye, and that edged Red was allotted to Oshunbanjo. Oshunbanjo had two children Oshunkoya, the defendant, and Balogun the plaintiff who was in town and looked after his father very well. His father Oshunbanjo then persuaded his brother Oshuntoye to release the land edged blue in Exhibit A to the plaintiff. The plaintiff then built his residence on the said land as indicated in the survey plan Exhibit A.

Oshunbanjo later died and his mud house built on the area edged Red was partitioned between his two children parties to this action. The senior brother, the defendant, being poorer than his junior brother was given a substantial portion of their father’s house whilst the portion which had become dilapidated was given to the plaintiff. The plaintiff in 1981 was stopped by the defendant with violence from developing his own portion of his father’s house, which event gave rise to this action.

The case for the defendant was that contrary to the plaintiffs case, their grandfather Oshunkoya had land at Ibipe quarters, Ago-Iwoye and at Orule Ibipe near Ago-Iwoye. In his life time he gave the property at Ibipe quarters to Oshunbanjo and that of Orule Ibipe to Oshuntoye. The land in Exhibit A was therefore the property of their father Oshunbanjo. He admitted that the plaintiff built his house on Plot 1 of the area edged blue in Exhibit A with his, defendant’s consent in 1940, ten years after the death of their father. The two brothers in 1945 shared the land in Exhibit A between themselves without any outside interference. Their father’s ruined house with some walls standing and with a hanging roof now falling and numbered 7 Ebumawe Street went exclusively to the defendant as the senior brother. The vacant land behind the ruined house edged blue in Exhibit P minus the green portion went to the plaintiff. The defendant when he had money built his house on the plot 3 in his portion of land. The Health Authorities in August, 1975 served the defendant notice to abate the nuisance in respect of the hanging roof and the wall ruins on plot 4 within his own land. Another such notice was served on the defendant in August 1980. He thereupon pleaded that the plaintiff’s claim be dismissed.

Both parties led evidence in support of their pleadings. The learned trial Judge reviewed and evaluated their evidence, found that the plaintiff failed to prove his case and dismissed his claim. Dissatisfied with that judgment, the plaintiff appealed on two grounds, the Omnibus, and another criticising the order of the court that it should be a non-suit and not a dismissal of his action.

In this court, both parties filed and exchanged briefs of arguments. In the appellant’s brief the following two issues were raised:

(1) Whether having rejected the evidence of both the plaintiff and the defendant, the learned trial judge was right in dismissing the suit instead of entering an order of non-suit.

(2) Whether the learned trial Judge was right in dismissing the suit instead of striking it out after holding that all proper parties were not before the court.

Oluwole Aina Esq. learned counsel for the appellant both in the appellants’ brief and at the hearing submitted as put in a precis as follows. It is common ground that the land in dispute is the joint inheritance of the parties from their deceased father, which land was partitioned between the parties. The question is the validity of the said partition in view of the existence of other children of their father apart from the parties and other parcels of land not in dispute. Therefore as all interested children were not made parties, and as the appellant has shown that he had some claim to the land in question the action should have been non-suited or struck out. The learned trial judge erred when he dismissed the action. Oloriode v. Oyebi (1984) 5 S.C. 1; (1984) 1 SCNLR 390; Seismograph Service Nigeria Ltd. v. Eyuafe (1976) 9-10 S. C. 135, at 159.

The appellant could not be said to have failed in toto in his action and that is not consistent with an order of dismissal. An order of non-suit is more appropriate. Ejiofor v. Onyekwe & Ors (1972) 12 S.C. 171, at 185 where Coker J.S.C opined thus:

“An order of dismissal operates as estoppel per rem judicatam and, ipso facto, bars the losing party for all times from re-litigating the same subject-matter. A finding that such a party is entitled to some though not ascertained portions of the land in dispute is not consistent with an order of dismissal. If a plaintiff fails in toto to prove his case, an order of dismissal should normally follow but where the failure was only due to a technical hitch, the evidence of the merits showing the entitlement of the plaintiff to the land claimed or portions of it and the defendants not being entitled to the judgment of the court, the interest of justice demands that such a plaintiff should not be forever shut out from representing his case. See the observations of the West African Court of Appeal in Uzonwane Nwakuche v. Peter N. Azubuike & Ors. (1955) 15 W.A.C.A, 46. In similar circumstances this Court had directed an order of non-suit. See Craig v. Craig (1967) N.M.L.R.52; also Dada v. Ogunremi (1962) 1 All NLR 663; (1962) 2 SCNLR 417.

O. Aina Esq. learned counsel for the appellant then referred to the findings of the learned trial judge at P.64 line 23 – 31, and p.65 line 1-4 of the record as follows:-

“Partition of Oshunbanjo’s land between Oshunbanjo’s children namely the plaintiff and the defendant had been alleged by both parties. This court has been told that the children of Oshunbanjo were only two. The plaintiff supports this with genealogical tree. But when evidence was given, it came to light (under cross-examination) that Oshunbanjo had children, other than the plaintiff and the defendant, who had been given other parcels of land. In a partition, if some of the beneficiaries are left unprovided for, the court may hold that there had been no partition: Majekodunmi v. Tijani (1933) 11 N.L.R. 74 or where some parcels of land were not included: George v. Fajore (1939) 15 N.L.R 1. The plaintiff has failed to disclose these facts although he told the court that there were other children of Oshunbanjo. If there are other children of Oshunbanjo as claimed by the plaintiff, the defendant ought to know. If therefore the plaintiff suppressed facts in this regard, he is actively supported by the defendant. Oshunbanjo had been portrayed as having the land edged BLUE only. But the plaintiff gave evidence of other parcels of land belonging to Oshunbanjo which had been given to others. The plaintiff was not cross-examined on this point by the 2nd defendant. I do not share the view that in this case and on the facts before this court, the course of justice could be better served by entering a non-suit.”

It was also urged that in the alternative the action should have been struck out as all necessary parties, other children of their deceased father, were not joined on the authority of Oloriode v. Oyebi (1984) 5 S.C.1 ,at 16; (1984) 1 SCNLR 390.

S. O. Bakare Esq. learned counsel for the respondent both in the respondent’s brief of arguments and at the hearing of this appeal made the following submissions. The dispute before the court was partition of land between the two children of their deceased father. Therefore the proper parties were before the court. See Jadesinmi v. Okotie-Eboh: In re lessey (1989) 4 NWLR (Pt.113) 113, at 126, where Akpata JSC citing with approval the dictum of Oputa J.S.C in Green v. Green (1987) 3 NWLR (Pt.61) 480, at 492 said:-

“Plaintiff who conceives that he has a cause of action against a particular defendant is entitled to pursue his remedy against that defendant only and should not be compelled to proceed against other person whom he has no desire and no intention to sue.”

Afolayan v. Ogunnubi 4 WBRN 21, 24, 43 and that the plaintiff having failed to prove his case, the learned trial judge rightly ordered the dismissal of the action. Further as the defendant did not counter-claim, the defendant could not obtain any decree of the court in his favour. Kodilinye v. Odu (1935) 2 WACA 336, at 338. The evidence of the plaintiff that their father had other children who were given land elsewhere should be ignored because that was not pleaded. The plaintiff pleaded that their father had only two children, the parties in the case. The learned trial judge rightly rejected that evidence in his appraisal of evidence adduced by both parties at p. 60 of the Record. As the learned trial judge also reviewed the evidence of the defendant/respondent at pages 62 and 63 of the record, he could not be faulted in his conclusion that the plaintiff failed to prove his case and the consequential order of dismissal of the action. Moreover as there is no error in the appraisal and evaluation of the evidence at the trial by the lower court, this Court should not disturb the said judgment. Afolayan v. Ogunrinde & Ors. (1986) 3 NWLR (Pt.26) 29, at 30, 37; Ayanwale v. Atanda (1988) 1 NWLR (Pt.68) 22, at 23-24 the moreso as the appellant as plaintiff failed to prove his exclusive entitlement to the area he claimed as shown in the survey plan Exhibit 1.

It was further submitted for the respondent that the lower court did not say that the plaintiff had no share in his father’s property therefore Ejiofor v. Onyekweu (1972) 12 SC 171, at 185 does not assist the appellant. The order of non- suit was therefore not appropriate as the plaintiff after due contest with the defendant on the merits of the case failed to prove his case. Olayioye v. Oso (1969) 1 All NLR 281, at 284.

In that case, the Supreme Court held that a long line of authorities had established the principle that where a plaintiff in an action for a declaration of title fails to prove his case the proper order is one of dismissal of the claim. Kodilinye v. Odu (1935) 2 WACA 336. The trial court in that case was therefore held to have erred in law when he non-suited the plaintiff who was at best a squatter who unsuccessfully sued the rightful owner for a declaration of title to the land in dispute.

The rule of law is that a trespasser can maintain an action in trespass against anyone except the true owner. That decision it was submitted supported the lower court which at p.65 line 12 to 17 held as follows:-

“I do not share the view that in this case and on the facts before the Court, the course of justice could be better served by entering a non-suit. I have reviewed the evidence of all the witnesses and I have come to the conclusion that the plaintiff has failed to prove his case and the action is accordingly dismissed.”

It was finally urged that the appeal should be dismissed as lacking in merit. I have given deep thought and consideration to the pleadings, and indeed the entire record of proceedings of the lower court, the grounds of appeal and issues raised by the appellant, and the briefs of the parties. I am of the view that the respondent in his brief of arguments correctly summoned up the issue in the appeal where it stated that on the state of evidence adduced by both the plaintiff now appellant and the defendant now respondent,was the learned trial Judge right in dismissing instead of non-suiting or striking out the plaintiff’s action.

First, the plaintiff pleaded a set of facts and at the trial gave evidence on facts not pleaded with regards to the alleged other children of their father who were allotted other parcels of land. The plan Exhibit I showed a straight line of demarcation of the parcel of land edged blue and the adjoining parcel of land edged red. The plaintiff did not amend his Statement of Claim to take care of a new case he put up at the trial. It is trite law that parties are bound by their pleadings and evidence led which is not pleaded as the plaintiff did at the trial goes to no issue and the trial court can ignore or strike out such evidence in his judgment. Ambrosini v. Tinko (1929) 9 NLR 8, 12. In Domingo Paul v. George (1959) 4 F.S.C. 198, at 201; (1959) SCNLR 510, it was held per Brett F.J that the lower court was wrong in considering a point which had not been raised on the pleadings and on which the plaintiff’s case had not been completely presented. Idika & Ors v. Erisi & Ors (1988) 5 SCNJ 208, at 219; (1982) 2 NWLR (Pt.78) 563 is another authority for the proposition that any decision based on issues not raised by the parties in either their pleadings or grounds of appeal will not be allowed to stand. In Olowosago v. Adebanjo (1988)4 NWLR (Pt.88) 275; (1988) 9 SCNJ 78, at 90, it was held per Karibi-Whyte J.S.C. that where the claim of the plaintiff as disclosed in the writ of summons and statement of claim was not supported by the evidence at the trial, the action is bound to fail. See also Ogiamen v. Ogiamen (1967) NMLR 245; (1967) 1 All NLR 191. On this point alone, the plaintiff deserved the dismissal of his claim.

The appellant’s arguments that it is common ground that both parties admitted the partition of their father’s property between them; and the judgment is invalid as there were other children of their father not joined in the action as proper parties as well as other parcels of land not in dispute is an invalid argument both in logic and in law.

First, the plaintiff had the onus to prove the partition line. Section 137 Evidence Act, 1990 Laws of Nigeria. Secondly, the question that other children as proper parties who were not joined in the action rendered the trial invalid is a red herring he dragged into the case. He was the plaintiff and he had the duty to join as plaintiff or defendants those he considered proper parties. His complaint in that regard is baseless. See Amechree v. Newington (1952) 14 WACA, 97, at 99; McCheane v. Gyles (No.2) (1902) 1 Ch. D. 911, at 917; Oriare v. Government of Western Nigeria (1971) All NLR 138, at 141. If any of those joined held the view that he was not a proper party, he had the duty to move the court in limine to strike out his name as a party. Such a complaint is more acceptable from a defendant. Green v. Green (1987) 7 SCNJ 255; (1987) 3 NWLR (Pt.61) 480.

The question whether there should have been an order of non-suit or striking out therefore did not arise. An order of non-suit means giving the plaintiff a second chance to prove his case. The court has to consider whether that would be wronging the defendant, and on the other hand whether the dismissal of the suit would be wronging the plaintiff. See Craig v. Craig & anor. (1966) 1 All NLR 173, at 177. In Anyaoke v. Adi (1986) 3 N.W.L.R. (Pt.31) 731, at 744, the Supreme Court refused an order of non-suit having considered on Order 48 Rules 1 & 2 of High Court Rules Cap.61 Laws of Eastern Nigeria 1963 that a court may only non-suit the plaintiff where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court, and as the appellants sought a discretionary remedy of a declaration of title to land which they failed to prove, a non-suit would be unjust to the defendants/respondents. See also my humble contribution on this point in Dantubu v. Ademe v. Adene (1987) 4 NWLR (Pt.65) 314. To order a non-suit in this case would be unjust to the defendant. See Awosanya v. Algata & Anor. (1965) 1 All N.L.R. 228, at 230. There is no question of striking out the case. An order striking out a case is appropriate inter alia when a party lacks competence or locus standi or the court lacks jurisdiction or competence.

In the circumstances, this appeal fails and is dismissed seriatim and in toto with N450 costs to the respondent.

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Other Citations: (1992)LCN/0139(CA)

Aishetu Mayaki & Anor V. Alhaji Nda (1992)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against the judgment of the Kwara State Sharia Court of Appeal, Ilorin delivered on 21/11/89. The facts leading to this appeal emanated from the Bacita Area Court where the respondent herein sued the 1st appellant claiming the paternity of her twins. On appeal, the Upper Area Court Ilorin ordered a retrial before the Lafiagi Area Court. At the retrial before the Lafiagi Area Court, the Respondent herein as plaintiff called 3 witnesses while the appellant herein called one witness now the 2nd appellant. It will be recalled that before this suit, the 1st appellant had sued the respondent for divorce at the Bacita Area Court which was granted by the court on 28/2/84. A medical report was issued by Shanga Medical Centre on 30/4/84 (i.e during the period of Iddah). Following the divorce, the 1st appellant contracted a new marriage with the 2nd appellant on 3/5/84 and the 1st appellant gave birth to twins on 26/10/84. (Vide Exhibit D). Thus, from the date of divorce to the date of 1st appellant’s marriage to the 2nd appellant was 64 days or 9 weeks or 2 months four days. Similarly from the date of the 2nd marriage to the delivery of the twins was 176 days or 25 weeks and one day while from the date of divorce to the delivery of the twins had 240 days or 34 weeks 2 days between them.

It suffices to say that at the trial of the disputed paternity claim at Area Court Grade II Lafiagi, the plaintiff/respondent called 3 unimpeachable witnesses to prove his claim while the1st appellant called one impeachable witness (i.e the 2nd respondent) to prove her claim. The 2nd appellant did not call any witness. At the end of the trial, the Lafiagi area court presided over by Alhaji Mohammed Dangana awarded the twins to the Respondent. Dissatisfied with this decision, the appellant appealed to the Kwara State Sharia Court of Appeal which dismissed the appeal and affirmed the judgment of the trial Lafiagi Area Court. Again dissatisfied with the Sharia Court of Appeal judgment, the appellant has appealed to this court on four grounds including the omnibus ground. From these four grounds, the appellant has formulated the following 4 issues which agree with those of the respondent for the determination of this court viz:

(1) Was it right for the Lafiagi Area Court to reject the Medical Report of the Maternity Centre (Exhibits C and H)?

(2) Was it right for both the Area Court Lafiagi and Kwara State Sharia Court of Appeal, Ilorin to hold that the marriage of the defendant/first appellant to the plaintiff/respondent terminated only 5 months before delivery?

(3) Was the validity of the marriage of the defendant/first appellant to the plaintiff/respondent an issue and properly addressed before the Lafiagi Area Coun and the Kwara State Sharia Court of Appeal, Ilorin?

(4) In view of the facts that:

(i) from the date the defendant/first appellant saw blood in the house of the plaintiff/respondent (which remained for 16 days) to the date of divorce (28th February, 1984) to the date of delivery was 286 days (ie 16 days + 30 days + 64 days +176 days) OR 40 weeks and 6 days OR 9 months 16 days:

(ii) from the date the Maternity Centre Shonga examined the first appellant to the date of delivery was 6 months less one day;

(iii) from the date of the second marriage of the defendant/first appellant (to the second appellant) to the date of delivery was 176 days or 6 months less 3 days.

was it right for both the Area Court Lafiagi and the Kwara State Sharia Court of Appeal to say that the marriage was terminated 5 months before delivery?

The respondent added one other issue viz:

(iv) Whether the parties to a proceeding are competent witnesses in Islamic law procedure?

However, before dealing with those issues, it is necessary to observe that the respondent had filed a preliminary objection on the same day he filed the respondent’s brief touching inter alia, on the jurisdiction of this court to entertain the present appeal. Since jurisdiction deals with the basis of adjudication I shall first deal with this objection, the outcome of which will determine whether or not to consider the substantive appeal. In this regard, it is pertinent to observe that the preliminary objection raised the following issues for the determination of this court.

These are:

1. Grounds 1 and 2 of the amended grounds of appeal filed are raised for the first time in this court and are therefore constitutionally defective.
2. The amended grounds of appeal filed are not covered by the brief of argument filed in this matter.
3. The issues formulated in the appellant’s brief of argument are at variance with the grounds of appeal filed. Hence the brief is fundamentally defective and should be struck out.
4. The 3rd ground of the amended ground of appeal is a ground of fact and is not envisaged by section 223 of the 1979 Constitution.

Both parties nave filed their briefs which incorporated their reaction to this preliminary objection. Both counsel relied on these briefs and addressed us viva voca on the preliminary Objection. At the hearing of the preliminary Objection, learned counsel to the respondent Mr. T.J. Daniel withdrew grounds 1-3 of his Notice of Preliminary objection which in the absence of objection from the appellants were struck out, thereby leaving ground 4 of the objection relating to Ground 3 of the additional grounds of appeal. In another development, learned counsel to the appellant, Mr. Yahaya Mahmood withdrew ground 3 of his additional ground of appeal which was also struck out. In this way all matters in the preliminary objection were laid to rest. The court was thereafter faced with the substantive appeal.

On the substantive appeal, learned counsel to both sides adopted their briefs and addressed us viva voce to highlight some points.

Learned Counsel to the appellant, Mr. Yahaya Mahmood referred to page 8 Lines 21-25 of the judgment of the Sharia Court of Appeal where the court emphasised on the fact that the delivery of the twins was done 5 months after the marriage was terminated. Counsel submitted that that was the main reason by the Shaira Court of Appeal for giving paternity to the respondent. Counsel further submitted that from the date divorce was granted on 28/2/84 to the date of the 2nd marriage was 64 days. He also contended that from the date of the 2nd marriage to the delivery of the twins was 176 days (i.e six months less 1 day.) He pointed out that there was no where in the evidence before the Sharia Court of Appeal that from the dissolution of the 1st marriage and the delivery of the twins was 5 months. Counsel contended that the six months period of separation in Islamic law refers to Islamic lunar months which are different from the conventional months.

By way of reply Mr. T.J. Daniel, learned counsel to the respondent after his brief submitted that the burden of proving whether Iddah has been observed is on the appellant because the claim is theirs but this burden has not been discharged. According to counsel, the only attempt to do so is contained in the statement of 2nd appellant at p.8 lines 5-8 of the records, which does not amount to evidence under Islamic law. Refers to Abdullahi Mogaji Mayoluko v.lta Alamu (1990) 1 LR65 p.73, and submitted that the 1st appellant did not observe her Iddah before she contracted her 2nd marriage. He maintained that from Ch.65: 1 of the Holy Quran the Iddah period must be observed in her matrimonial home. Cited Doi, Sharia Islamic law p. 202. He submitted further that as from the time of marriage between the 1st and 2nd appellants i.e 3rd May 1984-26th October 1984) to the delivery of the twins is not up to the minimum period of gestation. Learned counsel further contended that Ogbolu’s case cited supra is not relevant to this matter as it was based on Customary law and Evidence simpliciter. He urged the court to dismiss the appeal.

By way of reply, learned counsel to the appellant Yahaya Mahmood Esq. contended that since at p.1 of the records, the respondent sued the appellant to court, the burden of proving that the 1st appellant did not observe the Iddah lay on him. He submitted that where divorce was granted on the ground that the husband was not maintaining his wife, the Holy Quran did not say that the Iddah should be observed in the husband’s house as nobody would maintain her if she stays there. He urged the court to allow the appeal.

I have considered the submissions of both sides on the issues. It would appear that the basic issue that emerges for consideration in the present appeal is the status of the 2nd marriage vis-a-vis the period of Iddah. Arising from this also is whether or not the twins were born within the period of gestation recognised by Islamic law. It is my considered view that answer to these two posers will dispose of this appeal.

In dealing with the first issue relating to the status of the second marriage in this case vis-a-vis the observance of the period of Iddah it is necessary to examine some basic principles of Islamic law of divorce on this point to fully appreciate the issue involved. It is trite in Islamic law that after either party has obtained a judicial divorce, it becomes mandatory for the wife to observe a waiting period of three months (otherwise known as the period of Iddah) before final severance of the marital tie between the parties. This was provided for by the Almighty Allah in the Holy Quran Chapter 65 verse I thus:

“Prophet, when you do divorce women, divorce them at their prescribed periods, and count(accurately) their prescribed periods: and fear God your Lord and turn them not out of their houses, nor shall they (themselves) leave except in case they are guilty of some open lewdness. Those are limits set by God; and anyone who transgresses the limits of God does verily wrong his (own) soul. Thou knowest not if perchance God will bring about thereafter some new situations”.

From the above, Iddah which literally in Arabic means number, is the term of probation incumbent upon a woman in consequence of a dissolution of marriage either by divorce or death of her husband. It is for 3 months in case of divorce and four months and ten days after the husband’s death. The wife will remain under the maintenance of the husband till the end of her waiting period. The next question

to ask is whether a woman observing her Iddah can get married to another person.

The answer to this has been provided by the Holy Quran which makes the following prohibition as regards marriage to wives observing Iddah. “But do not make a secret contract with them except in terms honourable, nor resolve on the tie 2 marriage till the term prescribed is fulfilled”

See the Holy Quran Chapter 2 Verse 235

See also Ruxton, Maliki Law Ch. V. pages 90-91.

The purport of this prohibition becomes clear when is it realised that during this period, the marriage is merely dormant but not dead as there is room for reconciliation between the parties. The concept of the Iddah as a post-divorce reconciliatory measure is clearly stated by the Almighty Allah in the Holy Quran Chapter 2 verse 288 thus:

“Their husbands are best entitled to take them back as their wives during this waiting period if they desire reconciliation”.

This is one of the main reasons why the husband is mandated to provide for her maintenance during the period as laid down in verse 24 I of the same Chapter 2 of the Holy Quran. Thus, since Islam forbids polyandry, a man is forbidden from marrying a woman who is already married or who is observing Iddah since the stamp of marriage is still on her. See M.A. Okunola, Interaction between Islamic Law and Customary Law of Succession among the Yoruba People (1984 University of Lagos Ph. D thesis hereinafter referred to as M.A. Okunola) page 208. In the instant appeal, I have gone through the records as well as the submissions of both counsel to the parties. It was noted that between dissolution of the marriage between the 1st appellant and the respondent on 28/2/84 and the solemnization of the marriage between the 1st and 2nd appellant on 3/5/84 there were 64 days. The point was not controverted by either side as it even agrees with simple arithmetical calculation. From the Islamic law principle outlined above the Iddah of the 1st respondent should be for 3 months from 28/2/84. It therefore follows that the marriage between the 1st and 2nd appellant contracted 64 days after the dissolution of the marriage between the 1st appellant and the respondent was contracted within the 1st appellant’s period of Iddah. The effect of such a marriage in Islamic law is nullity as the marriage is void having been contracted during the period of Iddah of the 1st appellant. See Holy Quran Ch. 2 verse 235; Al Hashiyat al Dasuqi Vol 2 page 218 and Ruxton, Maliki Law Ch.V pages 90-91 quoted supra.

Having dealt with the status of the marriage between 1st and 2nd appellant, it is necessary to examine the 2nd issue- whether the twins whose paternity are here being disputed were born within the period of gestation recognised by Islamic law.

The starting point for the considerationof this issue is the consideration of the Islamic period in gestation for purposes of determination of paternity or otherwise in Islamic Law. The legal presumption that a child born to a married woman is the legitimate child of her husband is based on the Arabic maxim “Al-walad-Lil-Firash” which means that “the child belongs to the marriage bed”, It will be observed that the emphasis of Islamic law is on the date of conception and not on the date of delivery hence the presumption operates only within the limits of what the law recognises as the minimum and maximum period of gestation. Thus, the minimum period of gestation according to all Sunni schools is six months. It has been suggested that this calculation is probably due to the Sunni schools understanding of the combined express Quranic Provisions of verse 15 of Suratul Ahkaf (i.e Ch and verse 14 of Suratul Lukman (i.e Ch ) fixing 30 and 24 months respectively for the minimum and maximum periods of gestation. Subtracting 24 from 30 they got 6 months, hence the idea of fixing 6 months as the minimum period of gestation by the Sunni schools of Islamic Jurisprudence, See Hashiyat Dasuqi Vol 2 p. 459. In effect the law attributes to the husband the paternity of a child born to his wife not less than six months of marriage and within not more than seven years of the termination of the marriage, provided, of course, that in the latter case the birth of the child represents the end of the wife’s Iddah period. It is necessary to observe here that the Iddah of a divorced pregnant woman ends with the birth of the child under the traditional Islamic law and not three months after the termination of the marriage as stated supra. However, it has been-noted that contemporary medical science generally regards one year as absolute limit of pregnancy (See M.A. Okunola supra p. 235).

However, N.J. Coulson late University of London Professor of Islamic law at page 26 of his “Succession in the Muslim Family”, London CUP, 1971 at page 26 opined that “in the more conservative areas of Islam, such as Nigeria and Saudi Arabia, the excessively long periods of gestation recognised by the traditional Islamic law as possible, are still very much of a reality both in popular belief and in judicial practice”.

However, in any situation where paternity of a child is in dispute and where the mother has already contracted a second marriage as in the instant case, the essential thing to establish is how long is the period from the date of the 2nd marriage and the delivery by her of the child. This statement of Islamic law was succintly restated in Haddabu, Commentary on Muhtassar Volume IV, page 148 as follows:

“If a woman gives birth to a child within a period that did not exceed the maximum period of pregnancy the child delivered will be said to belong to the first husband unless he waives the paternity through mutual impercation (Iian).”

Also in Commentary on Taudih, the same author stated that this rule is limited to women who did not remarry or who remarried and gave birth to the child before the first six months of the marriage. If this happens, her subsequent marriage becomes voidable, because the woman has married while observing her Iddah; and she will be ordered to go back to her first husband. But if the woman gave birth after six months from the date the marriage was contracted, then the child will be that of the second husband.

In the instant appeal, it was observed that the twins were born by 1st appellant within less than six months of the alleged marriage between the 1st and 2nd appellants inclusive of the period of Iddah. Although learned counsel to appellant emphasised that the birth of the twins took place within six months and less one day of the alleged marriage between the 1st and 2nd appellant, it is crystal clear that if the fact that the marriage took place within the period of Iddah (i.e 64 days after dissolution of the 1st marriage to the Respondent leaving say (i.e 90-64) 16 for days for Iddah to be completed by the 1st appellant) were to be considered, the court will be in no doubt to conclude that the twins were not born within the minimum period of gestation and I so hold.

Applying the principle of Al- Walad Iii firash the only marriage subsisting in this matter is the 1st marriage to the respondent since the 2nd marriage to the 2nd appellant contracted during the period of Iddah was void ab initio. The lawful wedlock in the instant case is that between the 1st appellant and the respondent herein. Since under the Islamic Jurisprudence, the law attributes to the husband the paternity of a child born to his wife not less than six months of marriage. I hold that the twins whose paternity is being disputed here were rightly awarded to the respondent herein by the Kwara State Sharia Court of Appeal.

In sum, the appeal is dismissed as it lacks merit. Consequently the judgment of Kwara State Sharia Court of Appeal, in suit No. KWS/SCA/CV/94/86 delivered on 21/11/89 which affirmed the decision of the Area Court, Lafiagi is hereby affirmed. The paternity of the twins in dispute is awarded to the respondent who is entitled to the costs of this appeal which I assess as N500.

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Other Citations: (1992)LCN/0138(CA)

Alhaji Liadi Busari & Ors V. Oba Yishau Goriola Oseni & Ors (1992)

LawGlobal-Hub Lead Judgment Report

TOBI, J.C.A.,

This matter moved through two hands. One is Ayorinde, J. (as he then was). The other is Adeniji, J. Ayorinde, J.(as he then was) set the ball rolling. Adeniji, J. completed the matter by his ruling of 27th July, 1988.

The facts of the case are not only tedious but complicated and long the journey of the case more so. Let me try to summarise the facts. The parties to this appeal, with the exception of the 9th defendant/respondent, are members of the Iba Community. The 1st defendant is the Oba of Iba Community.

In 1974, a parcel of the Iba Community land was compulsorily acquired by the Federal Military Government for the purpose of the Ojo Military Cantonment. Compensation of N9,064,986.00 was paid to the solicitor. He is the 9th defendant/respondent. The 9th defendant/respondent, after deducting his professional fees, paid the balance to the 1st to 8th defendants/respondents.

The plaintiffs/appellants, who claim that part of their land of the Iba Community land was compulsorily acquired, demanded their share of the compensation money. The respondents refused, contending that the appellants had no right to any share of the community money. Being aggrieved, they filed an action at the High Court of Lagos State. In the light of the issues raised in the appeal, it is necessary to state in plain the reliefs sought by the appellants:

“(a) A declaration that the sum of N9,064,986.00 received by the 9th defendant from Federal Ministry of Defence vide a Central Bank Cheque No.511397 being compensation money for the compulsory acquisition of the Iba Community Land vide Notice of Requisition No. 1727 published in the Official Gazette of the Federal Government of Nigeria No.58 in Vo1.61 dated 14th November 1974 was received for the benefit and enjoyment of the Iba Community in the Lagos State.

(b) A declaration that the sum of N4, 532,493.00 paid by the 9th defendant to the Ado Family of Ado Village in the Lagos State through the 7th and 8th defendants being one-half of the compensation money referred to in paragraph (1) above belong to members of the Iba Community and as such was received and kept by 7th and 8th defendants as Trustees thereof for the benefit and enjoyment of the members of the Iba Community in Lagos State.

(c) A declaration that the sum of N4, 532,493.00 paid by the 9th defendant to 1st – 6th defendants being the other half of the compensation money referred to in paragraph (1) above belong to the entire members of Iba Community in Lagos State and such was received as Trustees of the said money for the benefit and enjoyment of the aforesaid members of Iba Community.

(d) An Order directing the 7th and 8th defendants to pay into Court the said sum of N4, 532,493.00 for the benefit and enjoyment of the aforesaid members of the Iba Community.

(e) An Order directing the 1st-6th defendants to pay into Court the said sum of N4, 532,493.00 had and received by them jointly for the benefit and enjoyment of the entire members of the Iba Community.

(f) An Order for inquiry into the nature and extent of the interests of the Iba Community in the said acquired land and for payment to the respective members of such sum or sums of money out of the monies paid into Court as may represent a fair and equitable compensation for their interests in the acquired land.

In the interim, the appellants through their counsel filed two applications, viz:

“(1) Motion for leave to bring this action in a representative capacity.

(2) Motion for mandatory decree for payment of the compensation money into Court for the purpose of its being preserved pending the final determination of the substantive action.”

The motions came before Ayorinde, J. (as he then was). For reasons which are not quite clear from the Record, the matter was transferred to Adeniji, J. by the Chief Judge of the State. Adeniji, J. heard the application for an injunctive order to pay the compensation money into Court. He did not see his way clear in granting it. He dismissed it. That was on 27th July, 1988. The learned trial Judge did not hear the motion for leave to bring the action in a representative capacity.

Dissatisfied with the ruling of the learned trial Judge, the appellants have come to us. They filed six grounds of appeal. Very long briefs passed through the parties. The appellants filed a brief of 73 pages and a reply brief of 21 pages, while the 7th to 8th respondents filed a brief of 13 pages. And so we have to grapple with arguments running into 137 pages. It is not an easy task but we will try.

The appellants have formulated the following issues for determination.

“(1) Whether or not the learned trial Judge was not wrong when he held that the absence of a representation order in favour of the plaintiffs/applicants/appellants constituted a bar to the injunction order sought by the plaintiffs/applicants/appellants even on the face of “Exhibit GFI annexed to the injunction application and the application for representation order pending before him and both application of which were dated 15th February, 1988.

(2) Whether or not the learned trial Judge was correct in dismissing the plaintiffs’ interlocutory application for injunction order on the ground that the reliefs claimed in the said interlocutory application are the same as the reliefs claimed on the Writ of Summons.

(3) Whether the plaintiffs have locus standi to institute this action.

(4) Whether or not the trial Judge, based on the materials before him, ought to have granted the preservative injunction application dated 15th February, 1988.

(5) Was the ruling dated 27th July, 1988 in a consonance with what a decision of a Court of Law should contain?”

The 1st to 6th respondents have formulated the following issues for determination:

“(1) Whether the trial Court could rightly deem as ordered and granted leave of Court authorising the plaintiffs/appellants to commence their suit in representative capacity when, having been called upon by the Court to move their application for such leave, the plaintiffs/appellants declined and instead insisted on moving their application for interim order of injunction?

(2) If the answer to the question was in the negative, what could be the effect of this refusal on the application they opted for and moved?

(3) What would be the effect of their refusal to move that application upon the application they moved?”

And finally, the 7th and 8th respondents have formulated the following issues for determination: –

“(1) Whether the plaintiffs can sue the Ado Family as represented by 7th and 8th defendants in respect of the land being claimed to belong to Iba Community when the Oba of Iba the Oniba and other principal members of Iba Community are opposed to the plaintiffs arrogating to themselves the role of the defender of the Community.

(2) If the plaintiffs have no competence whether all proceedings based on that incompetence shall not be nothing built on nothing.

(3) Whether the Court can make an Order in vain when the affidavits filed by the 7th and 8th defendants show facts that they have shared the compensation money among the members of their family.

(4) Whether the Court can authorise the plaintiffs to sue for members of Iba Community who do not authorise it.

(5) Whether the granting of the reliefs in interlocutory injunction will not amount to the granting of two reliefs being asked for in the Writ of Summons without the Court hearing evidence on the matter.

(6) Whether the Court can grant interlocutory injunction for an act which has been done as stated in the case of John Holt Nigeria Limited & Anor. V. Holts African Workers Unions of Nigeria and Cameroons (1963) 2 SCNLR 383; (1963) I All NLR 379 when the counter affidavits show all these facts.”

Learned counsel for the appellants, Mr. Taiwo Kupolati, submitted that in a representative action, persons with common interest in a particular subject matter may authorise one or more of their members to pursue their collective claims against certain known defendants. Such representing individuals may obtain leave of Court to pursue such collective claims against such known defendants. He relied on Dilibe v. Nwakazor (1986) 5 NWLR (Pt.41) 315; Bolatito v. Sale Administrator (1986) 5 NWLR (Pt.42) 496; Ayinde v. Akanji (1988) 1 NWLR (Pt.68) 70. Relying on Obiode v. Orewere (1982) 1-2 S.C. 170 at 175; John v. Rees (1969)2 WLR 1294 at 1306 and Bedford v. Ellis (1901) A.C.8, counsel submitted that the rule as to representative capacity b a rule or convenience only and ought not to be treated as rigid but as a flexible tool of convenience in the administration of justice. He further submitted that even if the application for representative order had not been filed, Exhibit GFI annexed to the motion for injunction constituted sufficient material on which the trial Judge could have held that the plaintiffs have been duly authorised to bring the action. Calling the attention of the Court to Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587 at 600, learned counsel submitted that the presence or absence of a representation order does not affect the validity of an action.

On the issue of locus standi, learned counsel submitted that the locus standi of a plaintiff can only be put to test via the plaintiff’s statement of claim. It amounts to a clear error in law in finding if a suitor has title to sue, to venture to determine such delicate issue by recourse to material exhibits and affidavit evidence, learned counsel contended. He relied on Thomas v. Olufosaye (1985) 3 NWLR (Pt. 13) 523, at 536 and 537 and Shell BP Petroleum Development Co. v. Onasanya (1976) 1 All NLR (Pt.1) 425 at 429.

Counsel submitted that all that the plaintiffs needed to show in the circumstances of the case that they have locus standi is

(i) that they are members of the Iba Community;

(ii) that they had lands in the area now known and called Ojo Military Cantonment prior to its compulsory acquisition;

(iii) that compensation money was paid in respect of the lands compulsorily acquired;

(iv) that they have been denied their own share of the compensation money by the defendants.

He submitted that once the appellants can establish the above facts, which they have stated in their statement of claim, they can even as individuals sue in respect of the compensation money. He relied on Fawehinmi v. Akilu and Another (1987) 4 NWLR (Pt.67) 797; Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1; Thomas v. Olufosaye (1986) NWLR (Pt. 669); and Adesanya v. The President of the Federal Republic of Nigeria (1981) 2 NCLR 358. Counsel urged the Court to hold that the learned trial Judge was wrong in coming to the conclusion that the appellants had no locus standi to institute the action.

Dealing with the dismissal of the appellant’s application for interlocutory injunction, learned counsel took pains to examine the contents of the substantive action as well as those of the application for interlocutory injunction and submitted with great force that the reliefs sought in the two actions are different. Justifying the application for interlocutory injunction, learned counsel submitted that one of the foremost duties of a trial Court is to ensure the preservation of the res of a case before it so that its judgment will not be rendered nugatory. If it be otherwise, then the Court becomes functionless and otiose in regard of its duties since it will merely press the process of trial to high heights and deliver judgment that is incapable of being executed, counsel argued. He relied once again on Bolatito v. Sale Administrator (supra). He also relied on Okafor v. Attorney-General, Anambra State (1988) 2 NWLR (Pt.79) 736 at 754 and dealt in some detail with the case of John Holt Nig. Ltd. and Another v. Holts African Workers Union of Nigeria and Cameroons (1963) 2 SCNLR 383; (1963) 1 All NLR 379, a case the learned trial Judge applied. Counsel submitted that Order 39 Rule 2 of the High Court of Lagos (Civil Procedure) Rules 1972 which the learned Judge applied, is not meant to be invoked to avoid the preservation of the res of a case pending the determination of the substantive suit. To counsel, an order for an early trial, as was ordered by the learned trial Judge in this case, without an order preserving the res of the case is a bare order without an attribute of justice to the parties hereto, particularly the appellants. He urged the Court to hold that the refusal of the application for interlocutory injunction is capable of deluding the substratum of the substantive case since the money will be spent before conclusion of trial and the trial will not only be empty but the judgment painfully barren. He submitted that the appellants were entitled to the reliefs sought in their application for interlocutory injunction. He relied on Obeya Memorial Hospital v. Attorney-General of the Federation (1987) 3 NWLR (Pt.60) 325 at 338; Ladunni v. Kukoyi (1972) 1 All NLR (Pt.1) 133 at 138; American Cyanamid v. Ethicon Ltd. (1975) A.C. 396; Kufeji v. Kogbe (1961) All NLR 113 at 114; Ojukwu v. Governor, Lagos State (1986) 3 NWLR (Pt.26) 39 at 45; Egbe v. Onogun (1972) All NLR (Pt.1) 95 at 98; Nigerian Civil Service Union v. Essien (1985) 3 NWLR (Pt.12) 306 at 308 and 309 and Collinson v. Warren (1909) 1 C.H. 815 at 816.

Learned counsel dealt in some detail with the ruling of the learned trial Judge and submitted that it did not contain the basic requirements of a good judgment. He urged the Court to hold that the ruling is at best not only grotesque but pictures an excellent model of a bad decision which deserves to be set aside for all ends.

Learned counsel for the 1st to 6th respondents Mrs. H.A. Balogun, on the issue of bringing the action in a representative capacity, submitted that Exhibit GFI cannot be a substitute for the necessary leave of Court. She relied on Wiri and Others v. Uche and Others (1980) 1-2S.C. 1 at 18. Leave of Court is a condition precedent in Order 13 Rule 14 and since leave was not sought, the appellant’s application for interlocutory injunction was incompetent. Counsel also relied on Bolatito v. Sale Administrator (1986) 5 NWLR (Pt.42) 496 at 507.

Learned counsel argued that in the face of glaring incontrovertible evidence that the majority of the people the appellants seek to represent are against the action they took, it was not open to the appellants to arrogate to themselves representative capacity to sue. Counsel said that the two fundamental principles governing suits brought in a representative capacity are (a) that those represented must have a common interest and a common grievance, and (b) that the relief sought must in its nature be beneficial to all those whom the plaintiff is representing. She called in aid Ayinde v. Akanji (1988) I NWLR (Pt.68) at 70.

On the issue of locus standi, learned counsel submitted that the definition of the expression of Obaseki, J.S.C. in Thomas v. Olufosoye (supra) imposes a burden upon the appellants to establish their locus standi in the statement of claim. She relied on Mano v. Olotu (1970) 1 All NLR 117. It was the contention of learned counsel that the mere fact that the appellants are members of Iba Community was not disclosure of interest sufficient to give them locus to prosecute the action; they are expected to go further and establish the identity of their interest in the chieftaincy family land, and furthermore aver in the statement of claim how their interest in the chieftaincy family land arose. This, to learned counsel, is particularly necessary when the 1st defendant/respondent at pages 67 to 68, paragraph 10 of the counter affidavit deposed to the fact to represent have no interest in the community land over which compensation was paid.

On the issue whether reliefs sought in the substantive action are the same or substantially the same with those in the application for interlocutory injunction, learned counsel submitted that the learned trial Judge was right in relying on the case of John Holt Nigeria Limited and Another v. Holts African Workers Union of Nigeria and Cameroons (supra). Counsel said that as a Supreme Court decision, it is binding on all Courts of the land. Examining the principles governing the grant of interlocutory injunction in some admirable detail, learned counsel submitted that the learned trial Judge was right in refusing the application. She relied on Airport v. Securities Corporation (1895) 64 L.J. C.H. 491; American Cyanamid Co. v. Ethicon (1975) 1 All ER 504 and Obeya Memorial Hospital v. Attorney General of the Federation (supra).

On what the learned counsel called strictures against the ruling of the trial Judge, she submitted that there can be as many variations of a judgment as there are Judges. She submitted that the strictures, like the language used, generally in the brief, are in hard taste.

Learned counsel also submitted that the 1st defendant/respondent as Oniba of Iba has power and prerogative to receive on behalf of the community compensation payment on the acquisition, and distribute and utilize same for the benefit of the community at large and members of the community. She relied on Amodu Tijani v. Secretary Southern Nigeria (1921) 2 A.C. 399 and the Public Lands Acquisition (Miscellaneous Provisions) Act. 1976. Therefore counsel submitted that the learned trial Judge was right in refusing to interfere with the exercise by the 1st defendant/respondent of his prerogative rights over the disbursement of the compensation money by not acceding to the appellant’s application for an order of interlocutory injunction. He urged the Court to dismiss the appeal.

Learned counsel for the 7th and 8th respondents Mr. A. Bashua said that the application to sue in a representative capacity is asking that the appellants be permitted to represent the two families and not the entire Iba Community. Therefore even if the application was granted the appellants still had no locus standi to sue for and on behalf of the entire members of the Iba Community. Relying on Balogun v. Balogun (1935) 2 WACA 290 at 299, learned counsel submitted that the 1st defendant/respondent, the Oniba of Iba is vested with the management and control of the Iba Community.

Relying on the counter affidavit of the 1st to 6th defendants/respondents and the case of Green v. Green (1987) 3 NWLR (Pt.61) 491, learned counsel submitted that the appellants cannot maintain an action that can bind those who have not authorised them. To learned counsel, the trial Judge rightly came to the conclusion that the appellants had no locus standi in the matter.

Counsel submitted that the 4th and 5th reliefs claimed in the writ of summons are the same reliefs claimed in (1) and (2) of the motion for interlocutory injunction. Therefore the learned trial Judge was bound to follow the principle of law enunciated in NNSC v. Sabana (1988) 2 NWLR (Pt.74) 23.

Contending that a Court of law does not act in vain, counsel submitted that at the time of the application for interlocutory injunction, there was nothing to preserve and the appellants themselves have not denied this. He relied on John Holt (Nig) and another v. Holts African Workers Union of Nigeria and Cameroons (supra). Learned counsel further submitted that it will cause injustice to 150 families by granting the application for interlocutory injunction; families which have been paid with various sums of the compensation money. The only way open was to accelerate the hearing in the way the learned trial Judge has ordered, counsel contended.

On the Ruling of the learned trial Judge, learned counsel submitted that there was nothing wrong with the way the ruling was written, contending that Judges have different ways of writing judgments.

In his reply brief, and referring to the disbursement of the compensation money, Mr. Taiwo Kupolati submitted that a party to a pending lis cannot validly, legitimately and legally part with or transfer the subject matter of such pending lis and foist upon the Court a situation of absolute helplessness. He further submitted that no rights or benefits in the subject matter of pending action can validly be transferred or taken by litigant parties to the prejudice of the other. He cited the unreported decision of Abdullah v. Military Governor, Lagos State, CA/L/197/86 of 20/4/88. The Courts frown at disposition pendente lite because judicial allowance of it will defeat the purposes for which they are existing. He also submitted that in the absence of particulars of how the compensation money was disbursed, a Court is entitled to make a preservation order. He relied on Wallingford v. Mutual Society (1879-80) 5 A.C. 685 at 704.

Recounting in some detail the different counter-affidavits, learned counsel claimed that the “ten named persons” who swore the counter affidavit of 28th June, 1988, being strangers to the action, cannot in law swear the counter affidavit without being joined as parties in the action.

Learned counsel pointed out to the Court that counsel for the respondents freely introduced facts in their briefs which were not contained in the different affidavits. He mentioned specific instances at pages 18 to 20 of the reply brief and urged the Court to expunge them from the briefs. He relied on Kuye v. Olubode (1974) 10 S.C. 209 at 215.

Learned counsel also replied to the issue of suing in a representative capacity. He also condemned the way counsel for the 7th and 8th respondents argued the appellants grounds of appeal instead of the six issues he formulated in the brief of the respondents. He finally urged the Court to allow the appeal.

Let me quickly dispose of the issue relating to brief writing. Learned counsel for the 7th and 8th respondents and that for the appellants are at each other’s throats on the way the briefs were written and argued. Counsel for the 7th and 8th respondents threw the first blow. Reacting to the way the issues were formulated vis-a-vis the grounds of appeal, learned counsel said inter alia:

“The Supreme Court has emphasised that issues for determination should be treated under the Grounds of Appeal. This has not been done in Appellants Brief and we cannot reply in the order the appellants Brief has been written … We have therefore replied on the Grounds of Appeal of the appellants and issues for determination formulated by us.”

Learned counsel for the appellants in his reply brief raised similar attack on the brief on the 7th and 8th respondents. This is part of what he said at page 27 of the reply brief:

“They then took the Appellants grounds of appeal one after the other and argued their case thereupon: thus intrinsically turning each ground of appeal to an issue for determination. As it appears the 7th and 8th respondents put forward six issues for determination; but, they never really specifically dealt with any of the said issues.”

The law governing brief writing is by now reasonably settled that a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and go to no issue. See Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130; Osinupebi v. Saibu (1982)7 S.C. 104; Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208.

In Alhaji Momodu and Others v. His Highness Alhaji Momoh and Another (1991) 1 NWLR (Pt.169) 608, Uwais, J.S.C. aptly put the legal position at page 621 thus:

“…the issues formulated for determination take the place of grounds of appeal and when the issues have been considered by the appellate Court that is equivalent to considering the grounds of appeal. That is the essence of the practice of brief writing … Consequently, the Courts resolve the controversy in appeals by reference to the issues for determination and not the grounds of appeal.”

In the practice of brief writing, an issue may cover a ground or a number of grounds. An issue expatiates, expands or edifies a ground or grounds of appeal. Issues for determination in a brief act as a mirror reflecting the grounds of appeal. A brief argues issues; not grounds of appeal. Grounds of Appeal are set out in the Notice of Appeal and they stop there. In the brief, the issues are formulated from the grounds of appeal filed in the Notice of Appeal.

Learned counsel for the 7th and 8th respondents submitted that “issues for determination should be treated under the Grounds of Appeal.” And he credited the statement to the Supreme Court. If the word “under” in his context carries the ordinary meaning of “beneath, below, in or to a position lower than that of or especially vertically lower, “then I have my doubts that the Supreme Court intended that meaning. And when I say this, I do not want to hide my ignorance that I am yet to come across a decision of the Supreme Court on the use of the word “under” which conveys the ordinary meaning I have mentioned above. In Onifade V. Alhaji Olayiwola and Others (1990) 7 NWLR (Pt.161) 130, Nnaemeka-Agu, J.S.C. after examining the case law in some detail, concluded at page 157:

“From the numerous decisions of this Court, such issues are formulated from the grounds of appeal filed.”

I feel more comfortable with the word from as used by Nnaemeka-Agu, J.S.C. rather than the word under. I do not see the need for such a symmetrical arrangement like a pupil’s composition in a typical kindergarten or classroom setting. The rules of brief writing have not moved to that level of regimentation. It is my hope that that day never comes into our adjectival law of brief writing as it will give rise to a number of technical problems which bear no relationship to the practical aspects of brief writing. Both counsel and the Courts will be in some problem. Let us not foment problem for ourselves where there is none.

What was the method learned counsel for the 7th and 8th respondents adopted? It does not appear that he even adopted the method of treating the issues for determination under the grounds of appeal. He departed from it. I expected him to do just that, since he thinks that is the correct method. All he did was to go straight to the grounds of appeal under the generic heading of Argument at page 6 of the brief. At pages 6 to 9, he argued Grounds 1 and 4 together. At pages 10, 10A and 11, he argued grounds 2 and 5 together. At pages 11 and 12, he argued Ground 3. And finally at pages 12 and 13, he argued Ground 6.

There is nowhere in the brief where he specifically took the grounds in the context of the issues formulated by him? As I indicated earlier, he formulated six issues. Since he did not adopt the issues formulated by the appellants, he ought to have used the six issues he formulated as basis of his argument in the brief. But he did not. He did not even relate the grounds of appeal to the issues formulated by the appellants, assuming that he could have legally done so, in the face of his own formulated issues.

In my view, there are many aberrations and discrepancies in the brief of the 7th and 8th respondents to the extent that they substantially affect the merits of the brief. Now to the appellants brief. Perhaps apart from a few volatile attacks on the way the learned trial Judge arrived at his decision, and particularly the way he wrote the ruling, the brief of the appellants, in my humble view, is well written, well articulated and well argued. It contains very useful law and it is prolific both in character and in content. As a matter of fact, it is one sound brief I have read in recent times.

Learned counsel for the appellants raised the issue of non-parties swearing affidavits in the matter. Affidavits get to the Court by two main ways. They get to the registry of the Court in a matter which is not a subject of litigation. An example of such a matter is declaration of age. The other way they get to the Court is in respect of a pending litigation or a litigation physically going on in Court. In either case, affidavit qualifies as documentary evidence. Where it is not challenged, it is admissible and generally admitted, unless the fact deposed to is so notoriously wrong as a matter of common public knowledge and experience.

Depositions or averments in an affidavit, being admissible evidence, cannot normally be restricted to only the parties to the litigation. This however does not mean that every person under the rays of the sun can swear an affidavit in a matter before a Court of law. Since oral evidence in Court can only be given by a witness, it stands to reason that an affidavit evidence can also only be given by a witness. I think Section 85 of the Evidence Act will be useful here. The section provides:

“Every affidavit used in the Court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.”

The word witness in the section contextually carries its ordinary meaning of a person who gives evidence in a Court of law. Although in my hasty and hurried research I could not place my hands on any authority, I will hate to think that it is the province of the law to allow any person whosoever to swear an affidavit in a matter before a Court of law. If nothing else that will be against public policy as the Courts will be flooded with all sorts and all kinds of affidavit evidence, come rain, come sunshine. The resultant effect is that there will be no end to litigation and that will be bad for the judicial process, the parties and the Courts.

One very serious point of contest is in respect of commencing the action in a representative capacity without obtaining the leave of Court. The fundamental principles governing suits or actions brought in a representative capacity are:

(i) those represented have a common interest and a common grievance and

(ii) that the relief sought must in its nature be beneficial to all those whom the plaintiff is representing.

See Chief Atanda and Another v. Olanrewaju and Others (1988) 4 NWLR (Pt.89) 394; Akporue v. Okei (1973) 12 S.C. 137; Olatunji v. The Registrar. Co-operative Societies, Ibadan (1968) NMLR 393; Atane v. Amu (1974) 10 S.C. 237.

Representative action is not a matter of strict law which requires strict adherence and compliance. It is a rule of convenience. It was a rule that was originated for convenience and for the sake of convenience, its application in cases has been relaxed. It is therefore not to be treated as a rigid rule but as a flexible tool in the administration of justice. See Anatogu v. Attorney-General. East Central State and Others (1976) 11 S.C. 109; Obiode v. Orewere (1982) 1-2 S.C. 170; John v. Rees (1969) 2 WLR 1294.

The authority of a person to bring a representative action can be challenged by way of preliminary objection on motion and not by way of defence. See Russian Commercial and Industrial Bank v. Comptoir D’ Escompte de Mulhouse (1925) A.C. 112 at 162; Ifonwu v. Egbuji (1982) 9 S.C. 145.

The only reason the learned trial Judge gave for refusing the application for commencing the action on a representative capacity was the fact that leave of the Court was not sought. The learned trial Judge said at page 165 of the Record:

“I hold that the plaintiffs here cannot sue in a representative capacity without obtaining an order of Court so to do, and the action is therefore incompetent.”

Order 13 Rule 14 of the High Court (Civil Procedure) Rules of Lagos, 1972 is the enabling rule. It reads:

“Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may with the leave of the Court or a Judge sue or be sued, or may be authorised by the Court or a Judge in chambers to defend any cause or matter, on behalf or for the benefit of all persons so interested.”

It is clear that the rule uses the word may twice. It is an established canon of statutory interpretation that the word “may” is generally permissive and not mandatory. It does not foist on a party a legal duty which must be performed or which is not performed at the pain of punishment. Let me sound more relevant. It is not my understanding of rule 14 that failure on the part of the appellant to seek leave of the Court must, as a matter of law, oust the jurisdiction of the Court. I do not see such a sanction or penalty in rule 14, but that is the whole essence of the ruling that “the action is incompetent.”

By Order 3 Rule 2(1), if the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the endorsement shall show in what capacity the plaintiff sues or issued. I must say that the above rule was complied with. The appellants on the record sued “for themselves and on behalf of Idowu Balogun Family of Idomila Ruling House of Iba Community.”

Was the learned trial Judge right in the circumstances for not granting leave to the appellants to sue in a representative capacity? There is evidence that he ought to have granted the leave in the circumstances of the case. Firstly, the appellants complied with the requirements of Order 3, Rule 2(1). Secondly, Exhibit GFI was the Resolution made by 23 persons; some of them signed, while others impressed their thumb prints. There is the illiterates jurat at the end of the resolution duly signed by the Secretary of Iba Town.

Exhibit GFI contains four resolutions. The most relevant one is the last resolution, that is resolution (iv). It reads:

“That Mr. Lamidi Fabiyi, Alhaji Liadi Busari, Lamidi Yusuf Daramola and Isaiah Arowolo be authorised and mandated to represent the interests of the Idowu Balogun Family as well as the Ikogbe king-makers family in the proposed Court suit.”

Thirdly, the record shows at pages 17 and 18 a Motion on Notice dated 15th February, 1988 and which would appear to have been fixed for hearing on 29th by the Court to bring the action in a representative capacity. In paragraph 6 of the affidavit in support, the deponent, the 1st appellant, deposed as follows:-

“That the plaintiffs have been authorised by the principal members of the Idomila Ruling House and the Ikogbe King-makers Family as aforesaid to bring this action against the defendants jointly and severally and to act as their representatives in the same behalf in this action and of protecting their rights. The Instrument of Authority is attached and marked Exhibit GFI.”

The learned trial Judge recognised the existence of the motion to sue in a representative capacity in his ruling of 27th July, 1988, which is the subject of this appeal. He said at page 164 of the Record:-

“There is an application by the plaintiffs for leave to institute the action in a representative capacity in the Court’s file. When this motion directing the sum of N9, 064,986.00 to be paid to Court was to be heard, I asked leading learned counsel for the plaintiffs – Mr. Kupolati about the said application, and his reply was that he preferred to deal with the present application first, and he argued his case. The defendants’ case was thus fought on the basis that the plaintiffs failed to disclose the capacity they were suing and therefore had no locus standi.”

I see here a situation where counsel for the plaintiffs was in error in not moving the motion for an order to sue in a representative capacity first. But is it proper in law to punish the appellants for the error or mistake of their counsel. The law is trite that it is not in the interest of justice and fairplay to punish parties for mistakes of their counsel. See Doherty v. Doherty (1964) 2 SCNLR 96; (1964) 1 All NLR 299; Anisiuba v. Emodi (1975) 2 S.C.9; National Electoral Commission and Others v. Wadi (1989) 2 NWLR (Pt.104) 444.

In my opinion, the learned trial Judge had all the evidence before him that the action was brought in a representative capacity and he had all the opportunity to grant leave to the appellants in the peculiar circumstances of the case. That he failed to make use of the opportunity because of the reasons he advanced, is to say the least, sad.

By his approach, he relied on arid legalism or abstract technicality which our contemporary steam, propelling justice in the legal system, not only frowns upon but regards as aberrant. It is now a notorious principle of law that, as Courts of equity that we are, we should not pursue technical and abstract justice at the expense of dealing with the merits of the matter, but rather ensure that substantial justice is done to the parties.

The primary function of any Court of law is to do justice to the parties and where any procedural rule is antithesis to justice and fairplay, manoeuvre that harsh rule of law in pursuit of justice. If in the course of pursing justice, the Court ‘errs’ it has ‘erred’ in the right direction.

Under normal course of events, a person who thinks he should be a party to an action and who is not made a party, will certainly make his position known to the Court early in the litigation process so that he does not become a victim of a possible Court order. The reverse position is also true, as it relates to a person who is made a party in an action in a representative capacity. The moment he has knowledge of the pending action, he has a legal duty to disassociate, disentangle or untie himself from the action before he is knee-deep or complexly involved, to the extent that a return becomes impossible.

In either case, the party can make his position known to the Court by way of motion on notice. If however no steps are taken and the litigation is prosecuted to judgment, the Court will assume and rightly so for that matter, that the representative action is properly before the Court.

It is clear from the wordings of Order 13 Rule 14 that the provisions are permissive and made for the convenience of the parties. It is not a do or die affair that failure to comply with the permissive rules must result in the type of ‘punishment’ the learned trial Judge pronounced by way of declaring the action incompetent.

Before a Court can, or better still, should pronounce an action incompetent, it should be clear on the record that it has no jurisdiction whatsoever to entertain it. And this the Court can do only when the action is illegal, illegitimate, unfit, lacking capacity or legal power. An action could be said to be incompetent, if the non-compliance with the rules of Court, affect the props, the foundations and the fundamentals of the case. But where non-compliance, as in the instant case is of a peripheral nature which is not substantial but intangible and frivolous, should not give rise to a pronouncement that the action is incompetent. Since the consequences of an incompetent action are grave and telling on the plaintiff. Courts of law should not be too quick and ready in branding an action incompetent.

In Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587, Obaseki, J.S.C. said at page 600:

“It is settled law that the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action.”

By declaring the action incompetent, the learned trial Judge towed the opposite line of the Supreme Court’s decision in Ofapo v. Sunmonu (supra).

Learned counsel for the 1st to 6th respondents cited the case of Wiri and Others v. Uche and Others (1980) 1-2 S.C. 1. She specifically cited the following dictum of Idigbe, J.S.C. at page 18:

“That the authority for plaintiff to sue on behalf of a community must come from that community and that the order of leave to prosecute on behalf of the community under the rules of Court must come from the Court, otherwise the plaintiffs must be regarded as prosecuting such proceedings in their personal capacity.”

Learned counsel relied heavily on the above. I would like to point out that in the case, the learned Justice of the Supreme Court did not say that failure to comply with the rules of Court by way of seeking leave, will make the action incompetent.

All he said is that the action will be deemed to be a personal action of the plaintiff and not in a representative capacity. Where then lies the authority of the learned trial Judge declaring the action incompetent?

And this takes me sequentially to the issue of locus standi. The concept of locus standi which in recent times has gained so much prominence in our legal system and has been so frequently applied has been a common law concept, which has been in vogue for centuries. See generally The Sidebotham case (1880) 12 Ch.D. 458 at 465; Dyson v. Attorney-General (1912) 1 Ch.158; Massachusetts v. Mellon (1923) 262 U.S. 447 and Attorney-General and Others v. Commonwealth (1946) 71 C.L.R. 237 at 238.

Although the concept received some judicial attention, so to say, immediately after independence in the cases of Olawoyin v. Attorney-General, Northern Nigeria (1961) 2 SCNLR 5; (1961) 1 All NLR 269 and Gamioba and Others v. Ezezi II and Others (1961) 2 SCNLR 237; (1961) 1 All NLR 584, it was more extensively considered by the Supreme Court in the often cited case of Senator Adesanya v. President of the Federal Republic of Nigeria and Another (1981) 2 N.C.L.R. 358, a case which has been a victim of both scholarly and judicial comments.

In that case, Fatayi-Williams, C.J.N. defined the term as follows:-

“The term locus standi denotes legal capacity to institute proceedings in a Court of law. It is used interchangeably with the terms like ‘standing’ or title to sue.”

Bello, J.S.C. (as he then was) also gave a helping hand at page 380, where he defined the expression “as the right of a party to appear and be heard on the question before any Court or tribunal.”

In Chief Dr. Thomas and Others v. Rev. Olufosoye (1986) 1 NWLR (Pt.18) 669, the Supreme Court adopted the definition of Fatayi-Williams, C.J.N. in Adesanya. And in the Hon. Justice Ovie-Whisky and Others v. Chief Olawoyin and Others (1985) 6 N.C.L.R. 156 at 711, Wali, J.C.A. (as he then was) adopted the definition of Bello, J.S.C. (as he then was) in Adesanya. And in Chief Anago-Amanze and Another V. Dr. Onwudiwe and another (1985) 6 N.C.L.R. 620 at 628. Araka, C.J. described the concept thus:-

“By locus standi is meant a sort of self-imposed limitation by the Court over the exercise of its judicial powers.”

With respect, it may not be invariably correct to say that the concept means a self-imposed limitation on the part of the Court in the exercise of its judicial power. There should be a qualification and the qualification is this: where a statute clearly provides for the locus standi or standing of a party to sue, a Court of law, has not option than to succumb to the provisions of such a statute. In such a situation, there is no self-imposition but is a matter of law which the Court must enforce in the invocation of its interpretative jurisdiction. The definition in Anago Amanze will apply only in the absence of a statutory limitation and the Court is faced with a factual situation vis a vis the cause of action before it.

In 1987, the Supreme Court made further progress by way of expanding the frontiers of the concept. That was in the celebrated case of Chief Fawehinmi v. Col. Akilu and Another. In Re Oduneye (1987) 4 NWLR (Pt. 67). In that case the Supreme Court gave a more liberal interpretation to the concept. Since Fawehinmi was decided the impression is created that the decision has moved beyond Adesanya and should be regarded as the current position of the law. I do not agree. While Adesanya dealt with a civil matter, Fawehinmi dealt with a criminal matter. It is my understanding of the law that different considerations apply in the determination of locus standi in civil and criminal matters. Therefore it is not correct to say that Fawehinmi is an improvement or an extension of Adesanya. It cannot be so. And it ought not to be so. I have added this bit of the development of the law as a basis for a further comment in this judgment. One other way of defining locus standi or standing is the legal right of a party to an action to be heard in litigation before a Court of law or tribunal. The term entails the legal capacity of instituting: initiating or commencing an action in a competent Court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. There is locus standi only when the action is justiciable. There is no locus standi where the action is not justiciable because the Courts will not be in a position to enforce the judicial powers vested in them under section 6(6) (a) and (b) of the Constitution.

In Chief Thomas and Others v. Rev. Olufosoye (supra), the Supreme Court held that as the law stands there is no room for the adoption of the modern views on locus standi in England and Australia. The most pragmatic of all in English law on the concept is Lord Denning. Apart from his very extensive and expansive development of the concept in his judicial capacity, he had this to say in his Discipline of Law (1979) at page 113:-

“During the 19th Century the Courts were reluctant to let anyone come unless he had a particular grievance of his own. He had usually to show that he had some legal right of his own that had been infringed or some property of his own that had been injuriously affected. It was not enough that he was one of the public who was complaining in company with hundreds or thousands of others. But during the 20th century the position has been much altered. In most cases now the ordinary individual can come to the Courts. He will be heard if he has sufficient interest in the matter in hand. But the test of a ‘sufficient interest’ is very elusive. It has to be worked out by the Courts.”

I entirely agree with him and I adopt the statement as mine.

In Hon. Justice Ovie-Whisky and Others v. Chief Olawoyin and Others (1985) 6 N.C.L.R 156, the Court of Appeal held that section 6(6)(b) of the Constitution permits of a wider and more liberal view of locus standi than the English Law permits. This is a very interesting development worth exploring.

By the present state of the law in Nigeria and in most other jurisdictions, the determination of locus standi zeros on two major and telling words. One is ‘sufficient’. The other is ‘interest’. They both make up the ‘sufficient interest’ concept. The term sufficient interest is broad and generic. It is also vague and nebulous. It lacks a precise and apt legal meaning. It could only be determined in the light of the facts and circumstances of the particular case. The question of what constitutes sufficient interest is one of mixed law and fact; that is to say, it is not a question of law only or a question of fact only but both.

In arriving at a decision one way or the other, the Court will be guided by the overall interest of the parties in the litigation process in the absence of a specific enabling statute. This involves two apparently conflicting duties of the Court to vindicate the rights of the plaintiff to set the litigation process in motion and the concomitant rights of the defendant not to be dragged into unnecessary litigation by a person who has no standing in the matter or a mere busybody parading the corridors of the Court. By and large, the trial Judge, in determining locus standi, will be involved in the delicate balancing of divergent interests which are diametrically opposed in the enforcement of the judicial process. It is a very complex exercise based on the pleadings of the plaintiff. I shall return to this aspect on the plaintiff’s pleadings.

In Olawoyin v. Attorney-General Northern Nigeria (supra) the Federal Supreme Court held that a declaration can only be made in favour of an interested party and a person asking for a declaration must therefore first show that he has an interest in the subject matter. In Senator Adesanya v. President of the Federal Republic of Nigeria (supra), Bello, J.S.C. (as he then was) held that in order to bring an action to determine the constitutionality of an act, the plaintiff must “show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury himself.”

In Chief Ojukwu v. Governor of Lagos State and Others (1985) 2 NWLR (Pt.10) 806, it was held that the text of interest to determine a party interested in a matter is whether the person could have been joined as a party to the suit. The Court also held that a person interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings.

In Maradesa v. Military Governor of Oyo State and Another (1986) 3 NWLR (Pt.27) 125, the Court of Appeal held that the term ‘interest’ should not be given a narrow construction, but should be regarded as including any connection, association or interrelation between the applicant and the matter to which the application relates.

One other test of sufficient interest is whether the party seeking for the redress or remedy will suffer some injury or hardship arising from the litigation. If the Court is satisfied that he will so suffer, then he must be heard as he is entitled to be heard. See Chief Ikokwu v. Tobin and Another (1985) H.C.N.L.R. 1326. See also Nwonu v. Administrator-General, Bendel State and Others (1991) 2 NWLR (Pt.173) 343.

So far so good on the law, I now come to the factual position. I had earlier mentioned that the appellants brought the action in a representative capacity. The statement of claim avers to the representative nature of the action in paragraphs 1 to 3. So also is paragraph 9 thereof.

Dealing with the issue of locus standi of the appellants, the learned trial Judge said in his ruling:

“In this case, there is a serious challenge to the locus standi’ of the plaintiffs in the counter affidavits…

In the case under consideration, statement of claim has been filed: there is a serious challenge in the counter affidavit as to the ‘locus standi’ of the plaintiffs. Further if 4th plaintiff was suing for himself; the subject matter of the suit is community money, and as an individual, he cannot prosecute the matter in his individual capacity. See Bamgbose v. Oshoko (1988) 2 NWLR (Pt.78) 509.”

It is trite law that in determining whether a plaintiff has locus standi to sue, the Court can look at only the statement of claim. See His Pre-Eminence Bolaji v. Rev. Bamgbose (1986) 4 NWLR (Pt.37) 632.

Was the learned Judge correct when he moved away from the statement of claim to the counter affidavit to come to the conclusion that the appellants had no locus standi to sue? I think not. In Chief Thomas v. Rev. Olufosoye (supra) Ademola, J.C.A. correctly opined:-

“It is thus clear that the learned Judge has used materials and affidavit evidence which were exhibited during the course of the argument to arrive at some conclusions in the extracts quoted above. But Mr. Ajayi, both in his brief and in the argument before the Court rightly conceded this point of complaint by Mr. Lardner. He however pointed out from the Record that he did not urge that material other than the statement of claim being filed should be looked into while dealing with the issue of locus standi. I think there is agreement on both sides following the case of Shell B.P. Petroleum Development v. Onasanya (1976) 1 All NLR (Pt.1) 425 that in using material exhibits and affidavit evidence to determine the issue of locus standi the learned Judge was in error.”

And I so hold in the instant case. By resorting to the counter affidavits of the respondents instead of confining himself to the 42 – paragraphs statement of claim, the learned trial Judge was in serious error. One essential reason for confining a Judge to the statement of claims is that the plaintiff, who has the burden of proof, is expected to make out a case of standing to sue in his statement of claim. Therefore, where he fails to do so on his own pleadings then there is no need for the Court to call upon the defendant to defend the action. In the instant case the moment the learned trial Judge examined the counter affidavit in relation to the vital issue of locus standi, he made the parties to join issues without at the same time giving the appellants an opportunity to state their own side of the case before concluding that they lacked locus standi to sue. He ought not to have taken that line of action. And what is more, the learned trial Judge ought not to have accepted affidavit evidence which is a subject of controversy, in the circumstances, without oral evidence. The case law is in great proliferation. See Faluyi v. Oderinde (1987) 4 NWLR (Pt.64) 155: Atanda v. Olanrewaju (1988) 4 NWLR (Pt.89) 394; Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550.

In my view, the frontiers of the concept of locus standi should not be static and conservatively so at all times and for all times. The frontiers should expand to accommodate the dynamics and sophistication of the legal system and the litigation process respectively. In other words, the concept must move with the times to take care of unique and challenging circumstances in the litigation process. If the concept of locus standi is static and conservative while the litigating society and the character and contents of litigation are moving in the spirit of a dynamic changing society, the concept will suffer untold hardship and reverses. That will be bad both for the litigating public and the concept itself.

In the instant case, after a very careful and sober examination of the very large pleadings of the appellants, I come to the conclusion that the appellants prima facie have locus standi to institute the action, and a’ fortiori to bring the motion for interlocutory injunction. They may succeed. They may fail. The trial Court is not there yet. We in this Court are very much distant from that. All we are concerned with at this moment is whether the appellants have locus standi in this matter. My answer is in the affirmative. And when I say so I confine myself to the statement of claim and not the counter affidavit.

Having dealt with the issue of locus standi, I now go to the issue whether the learned trial Judge was right in refusing the application for interlocutory injunction. The principles governing the granting or refusal of application for interlocutory injunction are commonplace. I do not think it necessary in the circumstances of this appeal to restate them. See generally Amachree v. I.C.C. Ltd. (1989) 4 NWLR (Pt.118) 686; Ilechukwu v. Iwugo (1989) 2 NWLR (Pt.101) 99; Abdullah v. Government of Lagos State (1989) 1 NWLR (Pt.97) 356; Kanno v. Kanno (1986) 5 NWLR (Pt.40) 138; Obeya Memorial Hospital v. Attorney-General of the Federation (1987) 3 NWLR (Pt.60) 325.

One of the reasons the learned trial Judge gave for not granting the application for interlocutory injunction was that the reliefs claimed in the application “are substantially the same as in the writ…” The general state of the law is that a Court should try as much as it is possible to avoid giving an order in an interlocutory matter which in effect may dispose of the main action before it, without hearing evidence on the merits. The rationale behind this principle of law is that a Court should try to avoid trying the same issue twice. See John Holt (Nig) Ltd. and Others v. Holts African Workers Union of Nigeria and Cameroons (1963) 2 SCNLR 383; (1963) 1 All NLR 379; Falobi v. Falobi (1976) 1 NMLR 169; Egbe v. Onogun (1972) 1 All NLR 95.

Are the reliefs the same or in the words of the learned trial Judge “substantially the same.” I have taken some good time to examine the reliefs in both the substantive action and the application for interlocutory injunction and I do not agree that they are the same or substantially the same. Let me go into some specific details. The reliefs in the substantive action are six. The reliefs in the application are four. The first three declaratory reliefs in the substantive action are not contained in the application. This is quite understandable; and it cannot be basis for holding that the learned trial Judge was wrong in his conclusion. What this Court should consider are the injunctive reliefs common to both the substantive action and the application. Let me take them in numbered paragraphs for ease of reference.

(1) While relief No.3 in the substantive action seeks for a declaration that the sum of N4, 532,493.00, being half of the compensation money, belong to the entire members of Iba Community, relief NO.1 in the application prays the Court to order the payment of the said amount into Court within seven days from date of the order of the Court.

(2) In relief No.4 in the substantive action, the appellants seek for an order “directing the 7th and 8th defendants to pay into Court the said sum of N4,532,493.00 for the benefit and enjoyment of the entire members of the Iba Community of Lagos State.” In relief No.2 in the application, the appellants ask for substantially the same reliefs, if that relief is read alone or disjunctively.

But it cannot and should not be so read.It is tied up with relief No.3 in the application, and the relief is in the following terms:-

“Directing the Chief Registrar of this Court to pay the aforesaid monies paid into the Court into a nominated Bank Account to yield interest.”

Now,we see the difference. While in relief No.4 in the substantive action the Court is urged to pay the said amount to the Court “for the benefit and enjoyment of the entire members of the Iba Community of Lagos State,” no such relief is sought in the application.

(3) The same situation arises in respect of relief No.5 in the substantive action vis a vis the joint interpretation of reliefs Nos. (2) and (3) in the application. While in both reliefs Nos. (4) and (5) the appellants are seeking for a permanent order that the said compensation money be paid for the benefit and enjoyment of all the members of the Iba Community, the reliefs sought by the applicants have some element of transience or temporary arrangement. I say so because the amount is to be paid into an interest yielding bank account pending the determination of the substantive matter.

(4) While relief No.3 in the application is not specific on the last bit, relief No.4 thereof is so clear on it. It is in the following terms:

“That the aforesaid monies paid into Court shall abide the final judgment of this Court in this case.”

And so, while the reliefs in the substantive action understandably call for the Court’s final order in perpetuity, the reliefs sought in the application also understandably call for some interlocutory order pending the determination of the substantive action. In my humble understanding where the substantive action fails, any positive orders made by the trial Court will automatically abate, giving way to the decision of the Court. In other words, the interlocutory orders cannot be enforced on the face of the decision against the appellants in the substantive action. For the avoidance of doubt, I am not in anyway saying or alluding that the appellants will fail. Far from it, all I am saying is that assuming that they fail, then the interlocutory application, if granted, will become moribund. Of course, the trial Judge will take the surer step of formally vacating his earlier order. From the foregoing analysis, the learned trial Judge ought to have granted the application for interlocutory injunction. Since his only reason for not granting the application was that the reliefs sought therein were substantially the same as those in the substantive action, I have no alternative than to grant the application. And here I will not go into the issue whether there was enough affidavit evidence on whether the compensation amount was distributed or disbursed. Counsel raised the issue here but the learned trial Judge did not go into it. I should not therefore go into it.

Now I should deal with the complaint of learned counsel for the appellant the way the ruling was written.

As a matter of general principle, a ruling should contain the following:-

(1) The relief or reliefs sought,

(2) The affidavit evidence if any,

(3) The arguments of counsel,

(4) The analysis of the law in relation to the arguments of counsel and the affidavit evidence, and

(5) The decision of the Court by way of either granting the relief or refusing it.

In my view, once a ruling covers the above main aspects, a trial Judge cannot be faulted.

Learned counsel for the appellants raised a number of issues, including the failure of the learned trial Judge to have an introductory statement before setting out the reliefs, the citation of what was referred to as “hordes of references from decided cases whose relevance were never explained by the trial Judge,” failure to give facts of a case and enormous quoted references from previous decisions.

Writing of a ruling or judgment is basically the personal style of the Judge. In so far as he is able to consider the matters I have indicated above, I think he can hardly be faulted. He need not follow the sequence in which I have indicated. He has every right to change the sequence. He also need not invariably touch on all the matters I have indicated above. It depends on the matter he has on his hands.

Judges adopt different ways of citing cases or other references in their judgments or rulings. Learned counsel complained that the trial Judge cited a number of cases without explaining their relevance. He also attacked the learned trial Judge for failure to give facts of a particular case. It is not in every situation that a trial Judge should narrate the facts of a case. As a matter of practice, and a tidier and time saving one, a Judge should avoid as much as it is possible to narrate facts of a case. He should do so only when it is absolutely necessary. And such absolute necessity may arise if the facts of the pleaded case and those before him are exactly or substantially the same. He can also narrate facts of a case, where counsel has heavily relied on them, for the only purposes of distinction. There may be other circumstances in which he could narrate facts. But he should be most cautious about it. There is really nothing wrong in narrating facts of a case but there is everything wrong in the judgment being unduly too large and for no justifiable cause other than that all the trial Judge did was to state the facts of the cases. In any case, how many of the cases will he be able to state the facts?

Another complaint was that he cited a number of cases without explaining their relevance. A decision is not the better by the numerous authorities cited by the Judge. That does not mean that the decision should be bare without the leading authorities on the issue. There is nothing wrong in a trial Judge citing authorities based on a principle of law. He may do so in two ways. One, he may state the principle of law and cite the authority or authorities in support. Two, he may cite the authority or authorities followed by the principle or principles of law.

One other attack was the enormous quoted references from decided cases. Some Judges are in love with this style. Some of us think that the more extracts we quote from decided cases the more learned the judgment is. Others think differently. I am in the camp of those who think differently. I do not think a good judgment is determined on the number of long and frequent citations from previous decisions. That is not my style. Some other Judges adopt it very much. While there is a good case for quoting previous decisions, particularly of a superior Court, too much of it, like too much of anything, could be bad. If the frequency is too much (and it could be too much in some cases) the judgment lacks originality.

I think every Judge has a duty to contribute to the development of the law and as long as he does this within the established rules of stare decisis he cannot be faulted.

I think we should avoid as much as possible the citation of long passages from judgments. We should also avoid the frequency of the exercise in a single judgment. Let the original thoughts of the Judge come to bear on the judgment. There is no hard and fast rule in respect of the above, and more particularly in the judgment writing process. As I indicated, the writing of judgment is a matter of the personal style of the individual Judge and it is not like writing a composition in a classroom setting where the teacher dishes out the different stages or points the composition must reach or contain. Judges are of different natures. And so their minds and orientations are different. Therefore their perceptions and analysis of legal matters will be different.

I have carefully examined the ruling which is now a subject of very vehement attack in this appeal. Because of the very heavy weather raised, I managed to read it twice. Frankly I do not think the ruling deserves the heavy bombardment by learned counsel for the appellants. With respect, all he did was to try to regiment the learned trial Judge to write the ruling in a particular way known to him. But that is not fair to the Judge. He cannot be so regimented, like a soldiering apparatus. On the whole, I am of the firm view that the attack on the learned trial Judge is most uncalled for.

I now take the final point and it is the complaint of learned counsel for the appellants that learned counsel for the respondent’s added colour to the briefs by introducing new facts. There is always the temptation on the part of counsel, in the course of preparing briefs, to introduce new facts not before the trial Judge in the process of arguing their client’s case. In a good number of cases, the action is not intentional. Yet there are a few cases where the action is intentional to overreach the adverse party.

In whatever way one looks at the matter, counsel cannot, in law, use the forum of brief writing to introduce facts not before the trial Court. He has no competence to do so, and so he should not do so. Afterall, the facts are not his. They belong to his client. And he has no right to flirt with the facts. I have said it a number of times that he owns the law, in the sense that he is the expert of the law. Since the facts are owned by his client, he must rely on those before the Court. He cannot do more. He cannot even do less. And let it be so.

In the instant case, where the application was fought on affidavit evidence, all counsel were expected to rely on the affidavit evidence and no more. They had no right to move outside in search of more favourable evidence.

I entirely agree with learned counsel for the appellants that in a number of instances counsel for the respondents in their briefs went on an unguarded voyage of discovery for facts not before the Court below. They cannot do so. They do not have a free passage to do so. The law will block any passage that they may explore, and it is blocked now. I do not think I will go into the consequences of my decision on the issue of the new facts introduced by counsel in the briefs, in view of the decision I will reach anon in this matter.

I think I have gone into the matter in some considerable detail. I have no choice than to do so. I indicated the number of pages of the briefs I had to grapple with. I think I have finished. It now remains to say that the appeal is meritorious and it succeeds.

The judgment of this Court is that the ruling delivered by the learned trial Judge on 27th July, 1988 is set aside.

I hereby make the following orders:-

(1) That the 1st to 6th defendants/respondents pay into the Court within 30 days from the date of this judgment the sum of N4, 532,493.00 received from the 9th defendant/respondent in respect of the Iba Community Land compulsorily acquired by the Federal Military Government.

(2) That the 7th and 8th defendants/respondents pay into the Court within 30 days from the date of this judgment the sum of N4, 532,493.00 received from the 9th defendant/respondent in respect of the Iba Community Land compulsorily acquired by the Federal Military Government.

(3) That the Chief Registrar of this Court, shall upon receipt of the amounts stated in (1) and (2) above, pay same into an interest yielding account of the Union Bank (Nig.) Ltd. PLC.

(4) That the said amount paid into an interest yielding account of the Union Bank (Nig) Ltd., PLC, shall abide the final judgment of the Court below.

It is further ordered that the Chief Judge of the Lagos State do re-assign the substantive matter to another Judge of the High Court for hearing.

I award N400.00 costs in favour of the appellants.

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Other Citations: (1992)LCN/0137(CA)

The Chief of Defence Staff & Anor V. Modu Alhaji Tijah (Makama) (2016)

LawGlobal-Hub Lead Judgment Report

JOSEPH TINE TUR, J.C.A. 

 I tagged this determination Decision by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution which defines a decision to means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. A Ruling is omitted in the definition of decision under Section 318(1) of the Constitution (supra). What the framers of the Constitution omitted should not be inserted by trial Judges (Section 294(1)) or Justices of the Supreme Court or the Court of Appeal (Section 294(2)-(4) of the Constitution (supra).
In Davies vs. Powell (1737) Willes, 46, Willes, C.J. once held at page 51 that,
When the nature of things changes, the rules of law must change too.
In Jurisprudence, 4th edition by R.W.M. Diaz appears the following passage at page 196:
This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of

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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 effect on every person or authority in Nigeria. Any law or rule 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 this determination an opinion or a decision as provided under Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
In Packer vs. Packer (1953) 3 All E.R. 127 Denning, L.J., held at page 129 as follows:
I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction.
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

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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

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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) 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

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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 318(1) of the Constitution (supra) defines a decision to mean, in relation to a Court, or any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. A ruling is omitted from the definition of decision. I have decided to tag this determination Decision as provided under these constitutional provisions, bearing in mind the Supremacy of the Constitution (supra) under Section 1(1) and (3) of the 1999 amended Federal Constitution.
The number of appeals and motions listed for hearing per day, per week, per quarter and per year put together will show the number of decisions or opinions Justices of the Supreme Court or the Court of Appeal renders which constitutes the determination of these

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appellate Courts the National Judicial Council ought to consider in assessing not only the quality but the quantity of their output/performance in administering justice. Only then will society appreciate the workload of the Supreme Court, the Court of Appeal and other superior Courts of record in Nigeria.

I shall now consider this appeal on the merit.

The 1st appellant is the Chief of Defence Staff. The 2nd appellant is Colonel Ibrahim Ali, Commander Joint Task Force (JTF) Damaturu, Yobe State. The respondent is Modu Alhaji Tijah (Makama). On 24th July, 2013 the respondent by motion on notice proceeded against the appellants under the Fundamental Rights (Enforcement Procedure) Rules, 2009, Section 35(1)-(4) and 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 1983. The proceedings were instituted by the respondent before the Federal High Court, Maiduguri in Borno State on 24th July, 2013 but filing fee was paid on 30th July, 2013. Though served the processes, the appellants did not appear and the learned Federal Judge rendered

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his decision in favour of the respondent. On 24th July, 2014 the appellants applied explaining their failure to appear in the Court the day the proceedings were fixed for hearing. The decision was set aside on 10th July, 2014 in order to hear the parties on the merit.

The learned Federal Judge heard the parties on the merit on 10th March, 2015 but rendered decision in favour of the respondent on 26th October, 2015. The appellants have challenged the decision in a Notice of Appeal filed on 30th November, 2015. Five grounds accompany the Notice of Appeal. A Joint brief was filed on 6th January, 2016 wherein the appellants formulated three issues for determination as follows:
1. Whether this case did not constitute abuse of judicial process in view of the Suit NO:FHC/MG/CS/7/2013 between Modu Alhaji Tijah (Makama) v. The Chief of Defence Staff & 5 Others.
2. Whether the trial Judge is/was clothed with the requisite competence and jurisdiction to hear and determine this case, regard being had to the parties and subject matter of the case.
3. Whether, regard being had to the facts and circumstances of this case, the fundamental

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rights of the respondent could be said to have been breached to warrant judgment in his favour.

The respondents brief was filed on 5th February, 2016. The learned Counsel adopted the issues formulated in the appellants brief of argument when the appeal came up for hearing on 27th April, 2016. I wish to draw attention to Order 18 Rules 3(3) and 9(1) of the Court of Appeal Rules, 2011 which provides as follows:
3(3) The parties shall assume that briefs will be read and considered in conjunction with the document 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.

9(1) 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.
Counsel/parties should assume that I have read the briefs. This will obviate the necessity of a verbatim reproduction of the arguments in the briefs of learned Counsel. Secondly, oral argument is to be allowed at the hearing

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of the appeal to emphasize and clarify the written argument appearing in the briefs filed in Court. Counsel or the parties need not appear on the day of hearing if there is nothing to clarify or emphasize. The appeal will be deemed argued. See Order 18 Rule 9(4) of the Rules (supra) provides as follows:
9(4) 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 shall now consider the appeal on the merit.

ISSUE ONE:
The argument by the learned Counsel to the appellants is that Suit No.FHC/MG/CS/7/2013 viz Modu Alhaji Tijah (Makama) vs. The Chief of Defence Staff & 5 Ors. constitutes an abuse of Court process and ought to have been dismissed in view of the previous Suit No.FHC/MG/CS/9/2013 filed by the respondent which had been struck out as the reliefs claimed are the same with the present proceedings leading to this appeal. The appellants learned

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Counsel cited Onyeabuchi vs. INEC & Ors. (2002) 4 SCNJ 265 at 279; TSA Ind. Ltd. vs. F.B.N. Plc (No.1) (2012) 14 NWLR (Pt.1320) 329 and Uniform Ind. Ltd. vs. Oceanic Bank Nig. Plc (2005) 3 NWLR (Pt.911) 83 at 102 and a host of other authorities. The learned Counsel representing the respondent thinks otherwise and relied on N.D.I.C. vs. Okeke (2011) 6 NWLR (Pt.1244) 445 at 462-463; H.B. (Nig.) Plc vs. Lodigiani (Nig.) Ltd. (2010) 14 NWLR (Pt.1213) 330 at 308 and R. Bankay (Nig.) Ltd. vs. Cadbury (Nig.) Plc (2010) 9 NWLR (Pt.1306) 596 at 624 paragraphs E to F to submit that the mere striking out of a previous suit and the filing of another does not constitute an abuse of process. The order striking out suit No.FHC/MG/CS/7/2013 is at page 21 of the printed record and reads as follows:
UPON THIS SUIT coming up today the 26th day of June, 2013 for hearing:
Parties absent.
O.O. Aweda, Esq. for the 2nd and 4th respondents.
Applicants Counsel not in Court and no reason forwarded for his absence.
IT IS HEREBY ORDERED as follows:
That the motion is hereby struck out.
ISSUED AT MAIDUGURI

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under the seal of this Honourable Court and Hand of the Presiding Judge, this 26th day of June, 2013.

Gafai, F.J., struck out the suit without foreclosing the rights of the respondent from relitigating same. The respondent could have applied for its relistment or could have filed another suit claiming the same or similar remedies. A suit that was struck out can be relisted on the application of the party that instituted the action. When relisted, it is not a new suit; it is still the old suit. See Kassim vs. Ebert (1966) NNLR 75. When a suit or an appeal is struck out, it is as if no suit or appeal was ever filed. See Ikeakwu vs. Nwankpa (1967) NMLR 224 at 227. But such a suit or an appeal can be relisted if the factors that rendered the suit or appeal defective and culminated into its being struck out is/are remedied. See Odiase & Anor. vs. Agho & Ors. (1972) 1 All NLR 9Pt.1) 170 at 177. In NDIC vs. Okeke (2011) 6 NWLR (Pt.1244) 445 the Court held at pages 462-463 paragraphs G-A as follows:
a suit which has not been heard on the merit could only have been struck out and could not have been

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dismissed on the merit. The effect of the order of striking out is to temporarily remove the case from the Court’s list and could be brought back by either relistment or refiling afresh. The failure of the first option does not foreclose the second one.
Also in H.B. (Nig.) Plc vs. Lodigiani (Nig.) Ltd. (2010) 14 NWLR (Pt.1213) 330 at 348 paragraphs B- D the Court held as follows:
An order striking out a matter gives an opportunity to the party who instituted the action to apply to the Court for an order relisting same, or to file a fresh action

I am of the humble opinion that the argument of the learned Counsel to the appellants on issue one is not covered by judicial authorities. Issue one is resolved against the appellants.

ISSUES TWO AND THREE:
Issues two and three are intertwined or interwoven hence I shall consider them together. The argument is that the Federal Judge lacked the jurisdiction to have entertained and determined these claims, citing Njokonma vs. Mowete (2001) 6 NWLR (Pt.709) 351 at 364. The appellants learned Counsel however conceded that it is the

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statement of claim and the remedies sought that determines the jurisdiction of the Court, citing Adeyemi vs. Opeyori (1976) 1 FNLR 149 at 158; Jimoh Akinfolarin & Ors. vs. Akinola (1994) SCNJ (Pt.1) 30 at 43; Continental Industrial Gases Ltd. vs. Onafeko (2003) 7 NWLR (Pt.820) 479 at 492 and Edjerode vs. Ikine (2001) 12 SC (Pt.11) 94 at 124. Learned Counsel urged this Court to examine the reliefs the respondent sought against the appellants in the Court below and the status of the appellants whether they are sueable, citing Adetona & Ors. vs. Igtle (2011) 1 SCML at 23 and Tukur vs. Governor of Gongola State (2011) 9 SCNM 155 at 235 and Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

The argument is that the reliefs claimed do not come within the purview of Section 251 of the Constitution (supra). The appellants are not Federal agencies to be sued before the Lower Court. But assuming the subject-matter falls within the jurisdiction of the Court below, the reliefs claimed do not came within the provisions of Section 251(1)(p)(q) and (r) of the 1999 Federal Constitution as amended. Learned Counsel contended that

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it is not the law that once Federal agencies are involved in a cause or matter, the suit must be initiated before a Federal High Court, citing NURTW & Anor. vs. RTEAN 7 Ors. (2012) 3 SCM 171 at 197 and FMBN vs. Lagos State (2010) 5 NWLR (Pt.1188) 580 at 601; Onuorah vs. KRPC Ltd. (2005) All FWLR (Pt.256) 1356 at 1364-1365. That in determining the jurisdiction of the Federal High Court, a High Court of a State as well as the subject-matter and the status of the parties must be considered, citing National Union of Electricity Employees vs. Bureau of Public Enterprises (2010) 2-3 SC (Pt.11) 27 at 67.

Learned Counsel drew attention to the affidavits and counter-affidavits the parties relied upon in the Court below to show that the respondents detention was lawful, that he was an insurgent. The detention of the respondent was to therefore protect the lives of the people of this country, citing Alhaji Mujahid Dokubo Asari vs. FRN (2007) 12 NWLR (Pt.1048) 320 at 358-359, the Terrorism (Prevention) Amendment Act, 2013, Section 15 of the Economic and Financial Crimes Commission Act, 2004 and Section 14(2)(b) of the Constitution of the Federal Republic

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of Nigeria, 1999 as amended. Reference was further made to Ezeadukwu vs. Maduka (1997) 8 NWLR (Pt.518) and Bamaiyi vs. The State (2001) 4 SC (Pt.1) 18 at 26-27 to the effect that an applicant has to place before the Court all vital evidence regarding the infringement or breach of such a right. This was not the case in this appeal. Learned Counsel urged that the two issues be resolved in favour of the appellants.

Learned Counsel to the respondent drew this Courts attention to the periods prescribed in Section 35(3) to (4) of the Constitution (supra) for arraigning detained suspects to Courts, citing Saidu vs. The State (1982) 1 NCR 49 at 64. That four years was too long a period to continue to incarcerate the respondent by the appellants. Learned Counsel referred to Chinemelu vs. Commissioner of Police (1995) 4 NWLR (Pt.390) 467; Anakwe vs. Commissioner of Police (1996) 3 NWLR (Pt.436) 320 and Enwere vs. Commissioner of Police (1993) 6 NWLR (Pt.299) 333 at 341 in support of his argument. Learned Counsel distinguished the facts in Dokubo-Asari vs. FRN (supra) on the grounds that both the reliefs sought and the grounds for seeking them was not the

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same as in the case cited by the learned Counsel to the appellants. Learned Counsel urged this Court to hold that the learned Federal Judge had the jurisdiction to entertain this proceeding having regard to Sections 251 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Leveday vs. Comptroller Federal Prisons, Aba (2013) 18 NWLR (Pt.1386) 379 at 406 and 409 and Madukolu vs. Nkemdilim (1962) 2 SCNLR 341 were cited in argument. That issues two and three should be resolved against the appellants.

I shall proceed to determined issues two and three by reference to Sections 217-220, 251-252 and 272-273 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides as follows:
217(1) There shall be an armed forces for the Federation which shall consist of an army, a Navy, an Air Force and such other branches of the armed forces of the Federation as may be established by an Act of the National Assembly.
(2) The Federation shall, subject to an Act of the National Assembly made in that behalf, equip and maintain the armed forces as may be considered adequate and effective for the purpose of:-
(a)

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Defending Nigeria from external aggression;
(b) Maintaining its territorial integrity and securing its borders from violation on land, sea, or air;
(c) Suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President, but subject to such conditions as may be prescribed by an Act of the National Assembly; and
(d) Performing such other functions as may be prescribed by an Act of the National Assembly.
(3) The composition of the officer corps and other ranks of the armed forces of the Federation shall reflect the Federal Character of Nigeria.
218(1) The powers of the President as the Commander-in-Chief of the Armed Forces of the Federation shall include power to determine the operational use of the armed forces of the Federation.
(2) The powers conferred on the President by Subsection (1) of this section shall include power to appoint the Chief of Defence Staff, the Chief of Army Staff, the Chief of Naval Staff, the Chief of Air Staff and heads of any other branches of the armed forces of the Federation as may be established by an Act of the National Assembly.
(3) The

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President may, by directions in writing and subject to such conditions as he think fit, delegate to any member of the armed forces of the Federation his powers relating to the operational use of the Armed Forces of the Federation.
(4) The National Assembly shall have power to make laws for the regulation of:-
(a) The powers exercisable by the President as Commander-in-Chief of the Armed Forces of the Federation; and
(b) The appointment, promotion and disciplinary control of members of the armed forces of the Federation.
219. The National Assembly shall:-
(a) In giving effect to the functions specified in Section 217 of this Constitution; and
(b) With respect to the powers exercisable by the President under Section 218 of this Constitution, by an Act, established a body which shall comprise such members as the National Assembly may determine, and which shall have power to ensure that the composition of the armed forces of the Federation shall reflect the federal character of Nigeria in the manner prescribed in the Section 217 of this Constitution.
The jurisdiction of the Federal High Court is prescribed as follows:

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251(1) Notwithstanding anything to the contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;
(b) connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation;
(c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties;
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank

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of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures:
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;
(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing the Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act;
(f) any Federal enactment relating to copyright, patent, designs, trade marks and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;
(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluents and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by

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sea;
(h) diplomatic, consular and trade representation;
(i) citizenship, naturalization and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;
(j) bankruptcy and insolvency;
(k) aviation and safety of aircraft.
(l) arms, ammunition and explosives;
(m) drugs and poisons;
(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
(o) weights and measures:
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
(s) such other jurisdiction, civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National

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Assembly:
Provided that nothing in the provisions of Paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.
(2) The Federal High Court shall have and exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences.
(3) The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by Subsection (1) of this section.
252(1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly, the Federal High Court shall have all the powers of the High Court of a State.
(2) Notwithstanding Subsection (1) of this section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court more

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effectively to exercise its jurisdiction.
The jurisdiction of State High Courts is as follows:
272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.
273. For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that Court.
A composite reading of these provisions

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will reveal that suppressing insurrections, treason, treasonable felony and allied offences, etc, are within the exclusive jurisdiction of the Federal High Court not State High Court. Acting in aid of civil authorities to restore order when called upon to do so by the President is subject to such conditions as may be prescribed by an Act of the National Assembly. These are some of principal functions of the Armed Forces of Nigeria. The Nigerian Armed Forces is composed of Officer Corps and other ranks. The President of the Federal Republic of Nigeria determines the operational use of the armed forces of the Federation.
Appointing the Chief of Defence Staff, the Chief of Army Staff, the Chief of Naval Staff, the Chief of Air Staff and heads of any other branches of the armed forces of the Federation is as may be established by an Act of the National Assembly. The appointment, promotion and disciplinary control of members of the armed forces including the service Chiefs and heads of the branches of the armed forces of the Federation is the prerogative of the President. Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended

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defines appointment to wit:
318(1) In this Constitution, unless it is otherwise expressly provided or the context otherwise requires:-
“Appointment” or its cognate expression includes appointment on promotion and transfer or confirmation of appointment.
To appoint is to choose someone officially for a job or responsibility. An appointee is someone who has been chosen officially for a job or responsibility: a government appointee See Cambridge Advanced Learners Dictionary, 2003 edition, page 51. The Chief of Defence Staff (1st appellant) and (2nd appellant) Colonel Ibrahim Ali, Commander, Joint Task Force (JTF) Damaturu, Yobe State, is an Officer Corp. Both are servants or agents of the armed forces of the Nigerian Federation. The provisions of Section 251(p)-(s) of the Constitution of the Federal Republic of Nigeria, 1999 as amended empowers the institution of suits or proceedings against the Federal Government or any of its agencies in the Federal High Court in respect of the causes and matters enumerated therein. There is a

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wall of difference between an agency and an agent. In Blacks Law Dictionary, 9th edition, page 71 a federal agency is defined as: A department or other instrumentality of the executive branch of the federal government, including a government corporation and the Government Printing Office. The Administrative Procedure Act defines the term agency negatively as being any U.S. governmental authority that does not include Congress, the Courts, the government of the District of Columbia, the government of any territory or possession, Courts-martial, or military authority The case law on this definition focuses on authority: generally, an entity is an agency if it has authority to take binding action. Other federal statutes define agency to include any executive department, Government Corporation, government-controlled corporation, or other establishment in the executive branch, or federal regulatory board
Military authorities are in the United States of America, exempt from the definition federal agency.
An agent is defined at page 72 of the same dictionary as follows:

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Agent 1. Something that produces an effect (an intervening agent) 2. One who is authorized to act for or in place of another; a representative (a professional althletes agent). Also termed commissionaire
Generally speaking, anyone can be an agent who is in fact capable of performing the functions involved. The agent normally binds not himself but his principal by the contracts he makes; it is therefore not essential that he be legally capable to contract (although his duties and liabilities to his principal might be affected by his status). Thus an infant or a lunatic may be an agent, though doubtless the Court would disregard eithers attempt to act as if he were so young or so hopelessly devoid of reason as to be completely incapable of grasping the function he was attempting to perform. Floyd R. Mechem, Outlines of the Law of Agency 8-9 (Philip Mechem ed. 4th edition, 1952).
The etymology of the word agent or agency tells us much. The words are derived from the Latin verb, ago, agere; the noun agens, agentis. The word agent denotes one who acts, a doer, force, or power that

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accomplishes things. Harold Gill Reuschlein & William A. Gregory, The Law of Agency and Partnership, 1 at 1-3 (2nd edition, 1990).
A government agent is defined at page 73 of the Blacks Law Dictionary (supra) as: 1. An employee or representative of a governmental body2. A law enforcement official, such as a police officer or an FBI agent. 3. An informant, especially an inmate, used by law enforcement to obtain incriminating statements from another inmate?? The appellants are employees and appointees within the Armed Forces of Nigeria.
Section 11 of the Interpretation Act (Cap.123), Laws of the Federation of Nigeria, 2004 provides as follows:
11. Appointment
(1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes:-
(a) Power to appoint a person by name or to appoint the holder from time to time of a particular office;
(b) Power to remove or suspend him;
(c) Power, exercisable in the manner and subject to the limitations and conditions (if

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any) applicable to the power to appoint:-
(i) To reappoint or reinstate him;
(ii) To appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.
(2) A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the function of the office generally or the functions in regard to which he is appointed, as the case may be.
Where the appointing authority, body or person is known, he becomes the principal while the appointee is an agent or servant. Where the principal is known, unless in exceptional circumstances and this may be dependent on the cause of action, the agent is not sueable. See Vassiler vs. Pass Industries Ltd. (2000) FWLR (Pt.19) 418; Okafor vs. Ezenwa (2002) FWLR (Pt.2).

I shall however treat this appeal on the merit bearing in mind the fact that any party aggrieved with the decision may appeal to the Supreme Court for a review.

The complaint of the

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respondent in the Court below is that his arrest and continuous detention by the appellants, or by their officers, servants/agents and privies constitutes a violent breach of his rights as guaranteed under Section 36(1) and (4) and 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Reference was also made to Articles 4 and 5 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act (Cap.A9). That this was illegal and unconstitutional.
The provisions of the Constitution cited reads as follows:
35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law:-
(a) In execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty;
(b) By reason of his failure to comply with the order of a Court or in order to secure the fulfillment of any obligation imposed upon him by law;
(c) For the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his

30

having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;
(d) In the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;
(e) In the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or
(f) For the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:
Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.
(2) Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his

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own choice.
(3) Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.
(4) Any person who is arrested or detained in accordance with Subsection (1) (c) of this section shall be brought before a Court of law within a reasonable time, and if he is not tried within a period of:-
(a) Two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) Three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
(5) In Subsection (4) of this section, the expression “a reasonable time” means:-
(a) In the case of an arrest or detention in any place where there is a Court of competent jurisdiction within a radius of forty kilometres, a period of one day; and
(b) In any

32

other case, a period of two days or such longer period as in the circumstances may be considered by the Court to be reasonable.
Articles 4 and 5 of the African Charter (supra) also reads as follows:
4. Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
5. Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”
Section 35(1)(c) of the Constitution (supra) authorizes or sanctions the deprivation of a persons personal liberty where it is in accordance with a procedure permitted by law in the following circumstances (a) for the purpose of bringing him or her before a Court in execution of the order of a Court or (b) upon reasonable suspicion of his having committed a criminal offence. In the first instance, there would have been already in existence an order

33

of a Court against the person or group of persons. In the second situation, there would be reasonable suspicion that the person committed a criminal offence and the need had arisen to arrest and bring him before a Court of competent jurisdiction for trial.
The third reason (c) is where the arrest and detention is to such extent as may be reasonably necessary to prevent his committing a criminal offence. That is to say, a criminal offence is yet to be committed but it is reasonably necessary to arrest and detain the person or persons to prevent their committing a criminal offence or offences in the future. There are many kinds of arrests and detentions. These are listed in Blacks Law Dictionary (supra) at page 514 as follows: Detention 1. The act or fact of holding a person in custody; confinement or compulsory delay detain.
Investigative detention The holding of a suspect without formal arrest during the investigation of the suspects participation in a crime. Detention of this kind is constitutional only if probable cause exists.
Pre-trial detention 1. The holding of a

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defendant before trial on criminal charges either because the established bail could not be posted or because release was denied.
2. In a juvenile-delinquency case, the Courts authority to hold in custody, from the initial hearing until the probable-cause hearing, any juvenile charged with an act that, if committed by an adult, would be a crime. If the Court finds that releasing the juvenile would create a serious risk that before the return date the juvenile might commit a criminal act, it may order the juvenile detained pending a probable-cause hearing. Juveniles do not have a constitutional right to bail. The Supreme Court upheld the constitutionality of such statutes in Schall vs. Martin, 467 U.S. 253, 104 S.Ct. 2403 (1984). Also termed temporary detention.
Preventive detention Confinement imposed usually on a criminal defendant who has threatened to escape, poses a risk of harm, or has otherwise violated the law while awaiting trial, or on a mentally ill person who may cause harm.
Secret detention The holding of a suspect in an undisclosed place, without formal charges, a legal hearing, or access to legal Counsel, and

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without the knowledge of anyone other than the detaining authority. See secret detainee under DETAINEE. 2. Custody of property, especially an employee’s custody of the employer’s property without being considered as having legal possession of it.
Where a person or group of persons poses a risk of harm to this nation, her people or property, etc, the answer is preventive detention. Preventive detention is therefore permissible under the various provisions of the Constitution, some of which I shall enumerate:
35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law:-
(d) In the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;
(e) In the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or
(f) For the purpose of preventing the unlawful entry of any person

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into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:
Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence
Preventive detention is also permitted or sanctioned in the Constitution (supra) under the following circumstances:
45(1) Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society:-
(a) In the interest of defence, public safety, public order, public morality or public health; or
(b) For the purpose of protecting the rights and freedom or other persons.
(2) An act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of Section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such

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act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency:
Provided that nothing in this section shall authorize any derogation from the provisions of Section 33 of this Constitution, except in respect of death resulting from acts of war or authorize any derogation from the provisions of Section 36(8) of this Constitution.
(3) In this section, a ” period of emergency” means any period during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under Section 305 of this Constitution.
Preventive detention is reasonably justifiable in a democratic society in the interest of the defence of the Federal Republic of Nigeria against insurgents or insurgency. Preventive detention is also reasonably justifiable in a democratic society in the interest of public safety, public order, morality or public health or for the purpose of protecting the rights and freedoms of other persons.

The respondent also relied on Articles 4 and 5 of

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the African Charter On Human and Peoples Rights (Ratification and Enforcement) Act (Cap.A9), Laws of the Federation of Nigeria, 2004. The onus of proving that a person or group of persons were arbitrarily deprived of their right is on the detainee. The Fundamental Rights (Enforcement Procedure) Rules, 2009 under which this application was brought in the Lower Court provides under Order 4 Rules 1-4 as follows:
1(1) In an application where the applicant complains of wrongful or unlawful detention, the Court or Judge to whom the application is made ex-parte may make an order forthwith for his release from such detention, or may:-
(a) Direct that an originating summons as in the Form 2 in the Appendix be issued or that an application therefore be made by notice of motion, as in the Form 3; or
(b) Adjourn the ex-parte application so that notice thereof may be given to the person against whom the order for the release of the applicant is sought.
(2) The summons or notice of motion must be served on the person against whom the order for the release of the applicant is sought and on such other persons as the Court or Judge may direct,

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and, unless the Court or Judge otherwise directs, there must be at least five clear days between the service of the summons or motion and the date named therein for the hearing of the application.
(3) Every party to an application under Rule 1 must supply to every other party copies of the affidavit which he proposes to use at the hearing of the application.
2. Without prejudice to Rule 1(1), the Court or Judge hearing an application where the applicant complains of wrongful or unlawful detention may, in its or his discretion, order that the person restrained be produced in Court, and such order shall be a sufficient warrant to any superintendent of a prison, police officer in charge of the police station, police officer or constable in charge of the complainant, or any other person responsible for his detention of the production in Court of the person under restraint.
3. Where an order is made for the production of a person is restrained, the Court or Judge by whom the order is made shall give directions as to the Court or Judge before whom, and the date on which, the order is returnable.
4(1) Subject to Paragraphs (2) and (3), an order for

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the production of the person restrained must be served personally on the person to whom it is directed.
(2) If it is not possible to serve such an order personally, or if it is directed, to a police officer, or a prison superintendent or other public official, it must be served by leaving it with any other person or official working in the office of the police officer, or the prison or office of the superintendent or the office of the public official to whom the order is directed.
(3) If the order is made against more that one person, the order must be served in the manner provided by the rule on the person first named in the order and copies must be served on each of the other persons in the same manner.
(4) There must be served with the order (in the Form 4 in the Appendix) for the production of the person restrained, a notice (in the Form 5 in the Appendix) stating the Court or Judge before whom, and the date on which the person restrained is to be brought.
The reliefs claimed in the Court below are to the effect that the respondents arrest and continuous detention is wrongful or unlawful, unconstitutional and

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illegal. But Sections 35(1)(c) and 45(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 sanctions the circumstances under which a persons personal liberty shall be deprived provided it is in accordance with a procedure permitted by law. The onus is on the respondent to show that his case comes within the ambit of persons whose arrest or detention or continuous detention are wrongful or unlawful and constitutes a violation of the provisions of Section 35(4)-(6) of the Constitution (supra) which reads as follows: (4) Any person who is arrested or detained in accordance with Subsection (1) (c) of this section shall be brought before a Court of law within a reasonable time, and if he is not tried within a period of:-
(a) Two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) Three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either

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unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
(5) In Subsection (4) of this section, the expression “a reasonable time” means:-
(a) In the case of an arrest or detention in any place where there is a Court of competent jurisdiction within a radius of forty kilometres, a period of one day; and
(b) In any other case, a period of two days or such longer period as in the circumstances may be considered by the Court to be reasonable.
(6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, the appropriate authority or person means an authority or person specified by law.
Indeed, the exercise of jurisdiction conferred on any Court under the Fundamental Rights (Enforcement) Procedure Rules, 1979, etc, arises only when the respondent is able to show either in an exparte application or motion on notice that the arrest and detention was wrongful or unlawful. Without these two conditions precedent, a Court of

43

justice would lack the competence to entertain the application. Wrongful means 1. Characterized by unfairness or injustice 2. Contrary to law; unlawful The word unlawful means 1. Not authorized by law; illegal 2. Criminally punishable 3. Involving moral turpitude unlawful act conduct that is not authorized by law; a violation of a civil or criminal law. See Blacks Law Dictionary, 9th edition, pages 1678 and 1751.
The applicant must therefore show that the detention was either wrongful or unlawful for the Court to assume jurisdiction and grant the exparte application. But if upon granting the exparte application the respondent subsequently shows during the hearing of the substantive application that the arrest and detention of the claimant was neither wrongful or unlawful but was in accordance with a procedure permitted by law. (See Section 35(1) of the Constitution, the Court ought to decline jurisdiction as the two conditions precedent for the affirmation of the exparte orders made before the hearing of

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the application on the merit had not been established by the claimant.
In Adeigbe & Anor. vs. Kusimo & Ors. (1965) NMLR 284, Ademola, C.J.N. held at page 287 as follows:
There seems to be a confusion of thought between jurisdiction and regularity; between the competence of the Court to hear the case and the propriety of a bench who had not heard all the evidence adjudicating on the case.
The matter was aptly put in a judgment of this Court in the Appeal Gabriel Madukolu vs. Johnson Nkemdilim (6) where Bairamian, F.J. put it thus:
A Court is competence when:-
(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
He continues:
Any defect in competence is fatal, for the

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proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.
If the Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial; in which case the Appeal Court may not think fit to set aside the judgment. A defect in procedure is not always fatal.
A cause of action is defined in Savage vs. Uwechia (1972) 3 SC 214 at 221 per Fatayi-Williams, JSC (as he then was) at page 214 thus:
A cause of action is defined in Strouds Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent

46

damage. As Lord Esher said in Cooke vs. Gill (1873) L.R. 8 C.P. 107 and later in Read vs. Brown (1888) 22 Q.B.D. 128 (C.A.), it is every fact that it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court (See also Kusada vs. Sokoto Native Authority, SC 131/68 delivered on 13th December, 1968, where the definition in Read vs. Brown (supra) was referred to with approval.
See also Johnson vs. Osaye (2001) FWLR (Pt.68) 1197 at 1209-1210.
I referred to the facts presented by the respondent to obtain the exparte remedies in the Lower Court. These facts have to be examined in conjunction with those presented by the appellants at the hearing of the substantive application to see whether the arrest and continuous detention of the respondent was wrongful or unlawful.
Section 131(1)-(2) and 132 and 141 of the Evidence Act, 2011 provides as follows:
131(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person

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is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

141. Any exception, exemption, provision, excuse, qualification, whether it does or does not accompany in the same section the description of the offence in the legislation creating the offence, may be proved by the defendant, provided that the prosecution is not required to specify or refute any of the exceptions mentioned in this section and if specified or denied, no proof in relation of the matter so specified or denied shall be required on the part of the prosecution.

At page 56 of the printed record is to be found Exhibit C which reads as follows:
Defence Headquarters,
Ministry of Defence,
P.M.B. 309,
Garki Abuja,
Tel: 09-2340129.
13th March, 2014.

DHQ/ABJ/401/3/4/ADM
The Honourable Attorney-General of the Federation,
Federal Ministry of Justice,
Shehu Shagari Way, Maitami,
Abuja.
CASE FILES

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ON SUSPECTED INSURGENTS
1. I am directed to refer to the Report of the Joint Investigation Team vide DHQ/ABJ/40/3/4/DLS dated 4 November, 2013 to forward 801 case files in respect of 1,384 suspected insurgents recommended for prosecution. I am to state that the case files cover 553, 145 and 103 insurgents detained in Borno, Yobe and Adamawa States respectively.
2. Please acknowledge and accept the assurances and esteemed regards of the Chief of Defence Staff.
A. SHEHU-OTHMAN
Air Commodore
For: Chief of Defence Staff.

Exhibit DHQ at pages 58-65 of the printed record is titled Report of Defence Headquarters Joint Investigation Team For the Screening of Detained Insurgents. This was produced since November, 2013 and styled Confidential. The Report was prepared by high ranking officers from the Armed Forces of the Federation of Nigeria and forwarded to the Federal Attorney-General for immediate prosecution of the insurgents. Pages 59-60 of the Report reads in part as follows: Furthermore, the Team wishes to acknowledge the position of the Nigerian

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Judiciary as the last bastion of the society and reaffirms its confidence in the Courts in discharging its constitutional roles of upholding the rule of law and restoring social order in the North East and indeed the entire nation.
RECOMMENDATIONS
83. It is recommended that:
(a) DHQ should advice the FGN to co-opt the NFIU and CBN in future JIT to ease the bureaucracy of financial tracking of illicit funds.
(b) DHQ should liaise with NPF, NCS, NIS, SSS and other security agencies operating within Nigerias borders in developing a strategy for curbing illegal importation of firearms.
(c) DHQ should task NIA and DIA to identify terrorist training camps within and outside the West African sub-region, monitor Nigerians who patronize such camps and advice FGN appropriately.
(d) FGN should build permanent and dedicated prisons for suspected insurgents, awaiting trial and convicted terrorists.
(e) DHQ should in the interim, reinforce security in all the temporal detention facilities for BH suspects.
(f) DHQ should forward the case files of 517 suspects with prima facie cases in Borno, Yobe and Adamawa States, to the

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HAGF for immediate prosecution.
v. ASA should, through the Ministry of Foreign Affairs, explore diplomatic ways of enlisting the cooperation and collaboration of Cameroun in the fight against terrorism.
vi. ASA should set up a Commission that will regulate religious preaching in the public and encourage states to adopt similar policies.

I have refrained from naming the high ranking officer corps and other ranks that prepared the Report since they may be targeted by the insurgents, some of whom had been unlawfully released by some other ranks within the Armed Forces without authorization. The report lists the respondent as No.143 out of the 517 insurgents that were recommended to the Attorney-General and Minister of Justice with immediate prosecution. The 517 insurgents were described as having prima facie cases in Borno, Yola and Adamawa States. Whether the Honourable Attorney-General and Minister of Justice of the Federation of Nigeria at that time acted on the report or not, is not a matter before this Court. But it can be seen that when this proceedings were instituted and served on the appellants they did not

51

appear in the Court below to defend the proceedings hence the Federal Judge favoured the respondent. It took more than one year afterwards for the decision to be set aside so that the application would be heard on the merit.

Pages 1-5 of the printed record is the motion on notice, reliefs sought, the grounds on which the reliefs were claimed and the supporting affidavit. They read as follows: (a) A DECLARATION that the arrest, detention and continuous detention of the applicant by the respondents, its officers, servants/agents and privies constitute a violent breach of the applicants right as guaranteed under Sections 35(1) and (4) and 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 4 and 5 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act and it is therefore illegal and unconstitutional.
(b) A MANDATORY order directing the respondents, their officers, servants/agents and privies however called to forthwith release applicant from detention in their custody.
(c) AN ORDER directing the respondents to forthwith open the applicant shop at Maiduguri Road,

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Damaturu, Yobe State which was closed by respondents.
AND for such further order(s) as this Honourable Court may deem fit to make in circumstances.
GROUND UPON THE RELIEFS ARE SOUGHT:
(i) Arrest, detention and the continuous detention of the applicant is contrary to Sections 34, 35, 36, 37 and 46 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 4 and 5 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act.
(ii) The applicant is entitled to the remedy that his arrest, detention and continuous detention are unconstitutional.
(iii) That the applicant has been in detention for over 10 months without knowing his fate or been charged before any Court of competent jurisdiction.
(iv) That the applicant did not commit any criminal act at any point in time.

following facts:
1. That I am a Litigation Secretary II in Doka Chambers, Jos Counsel to the applicant by virtue of which position I am conversant with the facts deposed to herein.

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2. That I have the consent and authority of the applicant and that of my employers to depose to this affidavit.
3. That I have been informed by the families of the applicant at Damaturu, Yobe State while briefing M.A. Haruna, Esq. at 12:00pm on the 24th July, 2013 which information I verily believe to be true:-
(a) That the applicant is a businessman and the Current Chairman of Yobe State Traders Association.
(b) That the respondents are in charge of the Joint Task Force in Yobe State.
(c) That the applicant was arrested by members of the Joint Task Force (JTF) under the command of the respondents, on 18th September, 2012 at his shop along Maiduguri Road, Damaturu, Yobe State about 5:00pm.
(d) That the applicant has since then been in detention without being charged to any Court for any offence up till now.
(e) That the applicant did not commit any offence and he has not been informed of committing any offence since his arrest about 10 months ago.
(f) That the applicant is a law abiding citizen with 4 wives, 14 children, aged parents and many dependants.
(g) That the families of the applicant are facing untold

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hardship since his arrest as no one is providing for their maintenance.
(h) That the children of the applicant are stranded at home without going to school.
(i) That the respondents have closed down the shop of the applicant since his arrest which is the only source of his income.
(j) That the respondents have denied access to the applicants shop which is the only means of his family sustenance.
(k) That the applicant has perishable goods in his shops and those whose date of expiration are short.
(l) The respondents are only desirous of inflicting pain on the applicant by detaining him in its custody for no just cause and without trial.
4. That it is in the interest of justice to grant this application.
5. That I, Ibrahim Bala, do solemnly and sincerely declare that I make this declaration in good faith conscientiously believing its contents to be true to the best of my knowledge, information and belief and in accordance with the Oaths Act.

Page 11-20 of the printed record contains what Oyetola Atoyebi, Esq. of Counsel representing the appellants called the bureaucratic bottleneck of dissemination

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of information from agencies of Government which, according to learned Counsel was responsible for the failure to enter an appearance and/or enter defence in the suit so as to defend the proceedings.

Who is an insurgent What is the meaning of insurgency and insurrection
An insurgent is one who rises in revolt against constituted authority; a rebel who is not recognized as a belligerent Insurrection is further defined at page 879 of the Blacks Law Dictionary (supra) as follows:
Insurrection A violent revolt against an oppressive authority, usually a government. Insurrection is distinguished from rout, riot, and offense connected with mob violence by the fact that in insurrection, there is an organized and armed uprising against authority or operations of government, while crimes growing out of mob violence, however serious they may be and however numerous the participants, are simply unlawful acts in disturbance of the peace which do not threaten the stability of the government or the existence of

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political society. 77 C.J.S. Riot; Insurrection, 29, at 579 (1994). Insurgency is a rising, revolt that may lead to an insurrection. An insurrection is 1. The action of rising in arms or open resistance against established authority or governmental restraint with an armed rising, a revolt; an incipient or limited rebellion further a person fighting against the government or armed forces of their own country. See Oxford Advanced Learners Dictionary, 9th edition, page 817.
Insurrection may also be defined as a situation in which a large group of people try to take political control of their own country with violence uprising etc, Insurgency is also an attempt to take control of a country by force rebellion.

Section 1(1)-(3)(1)-(6) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides as

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follows: 1(1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.
(2) The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.
(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
2. (1) Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria.
(2) Nigeria shall be a Federation consisting of States and a Federal Capital Territory.
3(1) There shall be 36 states in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.
(2) Each state

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of Nigeria, named in the First Column of Part I of the First Schedule to this Constitution, shall consist of the area shown opposite thereto in the second column of that Schedule.
(3) The headquarters of the Governor of each State shall be known as the Capital City of that State as shown in the Third Column of the said Part I of the First Schedule opposite the State named in the first column thereof.
(4) The Federal Capital Territory, Abuja, shall be as defined in Part II of the First Schedule to this Constitution.
(5) The provisions of this Constitution in Part I of Chapter VIII hereof shall in relation to the Federal Capital Territory, Abuja, have effect in the manner set out thereunder.
(6) There shall be 768 Local Government Areas in Nigeria as shown in the Second Column of Part I of the First Schedule to this Constitution and six area councils as shown in Part II of that Schedule.
Insurgents seek to take control or overthrow the Federal Republic of Nigeria or parts thereof by insurrection using violence and arms that will not be in accordance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999

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as amended. The remedy is preventive detention under Section 35(1)(c) and 45(1)(a) and (b) of the Constitution. These provisions should be invoked by the Armed Forces of Nigeria to detain a person or group of persons for the purpose of protecting Nigeria and the rights and freedoms of other persons until such a time that the threat to defence, public safety, public morality, public order, public health, etc, abates, or the insurgents recant their criminal or insurrective tendencies. In such a situation, preventive detention would be reasonably justifiable in a democratic society.
State Security Services may utilize preventive detention to such extent as may be reasonably necessary to prevent a suspect or group of persons committing a criminal offence or offences as the case may be. Since no offence has yet been committed, the question of detaining such a person or group of persons for a period longer than the maximum prescribed for the offence may or may not arise depending on the circumstances or the facts of each case. Section 35(4) to 7 of the Constitution (supra) provides as follows: (4) Any person who is arrested or detained in accordance

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with Subsection (1) (c) of this section shall be brought before a Court of law within a reasonable time, and if he is not tried within a period of:-
(a) Two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) Three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
(5) In Subsection (4) of this section, the expression “a reasonable time” means:-
(a) In the case of an arrest or detention in any place where there is a Court of competent jurisdiction within a radius of forty kilometres, a period of one day; and
(b) In any other case, a period of two days or such longer period as in the circumstances may be considered by the Court to be reasonable.

Section 35(6) of the Constitution (supra) also provides as follows:
(6) Any person who is unlawfully arrested or detained

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shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.
This compensation and public apology is for any person who is unlawfully arrested or detained without proof of the two conditions precedent a person or group of persons arrested or detained by the security forces are not entitled to compensation or public apology. Furthermore, Section 35(7) of the Constitution (supra) provides that:
(7) Nothing in this section shall be construed:-
(a) In relation to Subsection (4) of this section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence; and
(b) As invalidating any law by reason only that it authorizes the detention for a period not exceeding three months of a member of the armed forces of the federation or a member of the Nigeria Police Force in execution of a sentence imposed by an officer of the armed forces of the Federation or of the Nigeria police force, in respect of an offence punishable by

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such detention of which he has been found guilty.
Section 35(4)-(6) of the Constitution is confined and limited to Any person who is arrested or detained in accordance with Subsection 1(c) of this section That is when he or she “shall be brought before a Court of law within a reasonable time. The provisions of Section 35(1)(c), (4)-(6) of the Constitution (supra) are not of a general application in all cases. That is manifest in Section 35(7) of the Constitution.
A verdict of guilt in a trial founded on culpable homicide will attract the death sentence hence it cannot be argued that a suspect or suspects arrest and detention will constitute his keeping in detention for a period longer than the maximum period of imprisonment prescribed for the offence under Section 35(1)(c) and (f) of the Constitution (supra). If death is the verdict upon conviction, the provisions of Section 35(1), (4)-(7) of the Constitution will not apply.
Attention has to be drawn to An Ordinance to Supplement the Northern Penal Code of the Northern Region in respect of matters within the Exclusive

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Legislative Competence of the Legislature of the Federation, and for purposes Ancillary thereto. See page 328-342 of the Penal Code Law. In this Law, an insurrection is also equivalent to the levying of war against the Sovereign nation called the Federal Republic of Nigeria. It is treason in order to intimidate the inhabitants of this great nation and destabilize the West African Sub-region and Africa in general. The punishment in Section 410(1) and 411 of the Penal Code Law is death. See the preamble to the Ordinance. Sections 410-412 of the Penal Code Law list offences that are within the Exclusive Legislative Competence of the Federation not provided for in the Penal Code. The preamble states thus: AND WHEREAS it is necessary and expedient that such matters should be provided for the Federal Legislation and that the provisions of such legislation should take effect with the Penal Code so that the whole may conveniently be read as one Code in the Northern Region, in replacement for that contained in the Criminal Code Ordinance of the Federation? See page 328-329 of the Notes on the

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Penal Code Law, 4th edition, 1987, by S.S. Richardson. The verdict for insurrection, treason or treasonable felony is death.
With the coming into force of the Constitution of the Federal Republic of Nigeria, 1999 as amended on 29th May, 1999, defence, deportation of persons who are not citizens of Nigeria and extradition are listed as items 17, 18 and 27 on the Exclusive Legislative List. Also listed in the Exclusive Legislative List are the Military (Army, Navy and Air force) including any other branch of the armed forces of the Federation (item 38). Item 45 names Police and other government security services established by law. Quarantine is Item 54.
In other jurisdictions, insurrection and treason or treasonable felony, etc, is the death penalty. In Osborns Concise Law Dictionary, 9th edition, treason and treason felony is defined at page 383 as follows:
Treason: Breach of allegiance. There existed formerly both high treason and petty treason. Under the Treason Act, 1351 high treason was limited to: (1) compassing or imagining the death of the King, or of his Queen, or of their eldest son and heirs;

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(2) violating the Kings consort, or the Kings eldest daughter unmarried, or the wife of the Kings eldest son and heir; (3) levying war against the King in his realm; (4) adhering to the Kings enemies in his realm, giving them aid or comfort in the realm, or elsewhere; (5) slaying the Chancellor or the Judges. In all prosecutions for treason some overt act must be alleged and proved. In view of the doctrine of constructive treason (q.v.), treason was further defined by the Treason Act, 1795 to include compassing, etc, the death, or any harm tending to the death, wounding, imprisonment or restraint of the King.
Petty treason was where a servant killed his master, a wife her husband, or an ecclesiastic person his superior. It was converted into the crime of murder by the statute 9 Geo. 4, c.31, s.2.
Treason felony The Treason Felony Act, 1848 provides that treason felony consists in an intention to depose or levy war upon the Sovereign or compel him to change his measures or counsels, or to intimidate either House of Parliament, or to incite nay foreigner to invade the Kings dominions, coupled with an

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expression of such intention by any printing or writing or by open and advised speech or by any overt act. The maximum penalty is imprisonment for life.
The authors of Blacks Law Dictionary, 9th edition defines treason and treason felony at page 1639 as follows:
Treason The offense of attempting to overthrow the government of the state to which one owes allegiance, either by making war against the state or by materially supporting its enemies. Also termed high treason; alta proditio. 1. Treasonable, treasonous.
The judgment of high treason was, until very lately, an exception to the merciful tenor of our judgments. The least offensive form which is given in the books is, that the offender be carried back to the place from where he came, and from there to be drawn to the place of execution, and be there hanged by the neck, and cut down alive, and that his entrails be taken out and burned before his face, and his head cut off, and his body divided into four quarters, and his head and quarters disposed of at the kings pleasure. Some of the precedents add other

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circumstances, of still more grossness and aggravation. But this horrible denunciation was very seldom executed in its more terrible niceties. 1 Joseph Chitty, A Practical Treatise on the Criminal Law, 702 (2nd edition, 1826).
Several important characteristics marked off high treason from all other crimes. For one thing, it earned a peculiarly ghastly punishment. For another, it was unclergyable, while every felony was clergyable unless some statute had otherwise ordained. Thirdly, while the felons land escheated to his lord, the traitors land was forfeited to the king. This last distinction influenced the development of the law. 2 Frederick Pollock & Frederick William Maitland, History of English Law Before the Time of Edward, 1500 (2nd edition, 1899).
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open Court. U.S. Constitution, Article III, Section

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3.
Treason felony English Law. An act that shows an intention of committing treason, unaccompanied by any further act to carry out that intention. This offense usually results in life imprisonment rather than the death.
What is the meaning of capital offence and defined under Section 37(a) of the Constitution (supra)? A capital offence is A crime for which the death penalty may be imposed Also termed capital crime. See Blacks Law Dictionary (supra) page 1186. Capital punishable is also defined in Oxford Advanced Learners Dictionary, 9th edition, page 218 as involving punishment by death: a capital offence.
It would seem to me that crimes that are punishable with death on conviction are exempt from the provisions of Section 35(4)-(7)(a) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. The period of arraignment of such suspects in a competent Court of justice as prescribed under Section 35(4)-(5) of the Constitution (supra), I boldly and confidently state, has no application to capital offenders, example,

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insurgents or treasonable offenders.

I wish to also draw attention to the provisions of Section 37-44 of the Constitution of the Federal Republic of Nigeria, 1999 as amended as provided as follows:
37. The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.
38(1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.
(2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ceremony or observance relates to a religion other than his own, or religion not approved by his parent or guardian.
(3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education

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maintained wholly by that community or denomination.
(4) Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society.
39(1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
(2) Without prejudice to the generality of Subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions:
Provided that no person, other than the Government of the Federation or of a State or any other person or body authorized by the President on the fulfillment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever.
(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society:-
(a) For the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of Courts or regulating

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telephony, wireless broadcasting, television or the exhibition of cinematograph films; or
(b) Imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.
40. Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests:
Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.
41(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom.
(2) Nothing in Subsection (1) of this section shall invalidate any law that is reasonably justifiable in a

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democratic society:-
(a) Imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or
(b) Providing for the removal of any person from Nigeria to any other country to:-
(i) Be tried outside Nigeria for any criminal offence, or
(ii) Undergo imprisonment outside Nigeria in execution of the sentence of a Court of law in respect of a criminal offence of which he has been found guilty:
Provided that there is reciprocal agreement between Nigeria and such other country in relation to such matter.
42(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject;

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or
(b) Be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
(3) Nothing in Subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or member of the Nigeria Police Forces or to an office in the service of a body, corporate established directly by any law in force in Nigeria.
43. Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.
44(1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such

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property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things:-
(a) Requires the prompt payment of compensation therefore and
(b) Gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of Nigeria.
(2) Nothing in Subsection (1) of this section shall be construed as affecting any general law.
(a) For the imposition or enforcement of any tax, rate or duty;
(b) For the imposition of penalties or forfeiture for breach of any law, whether under civil process or after conviction for an offence;
(c) Relating to leases, tenancies, mortgages, charges, bills of sale or any other rights or obligations arising out of contracts.
(d) Relating to the vesting and administration of property of persons adjudged or otherwise declared bankrupt or insolvent, of persons of unsound mind or deceased persons, and of corporate or incorporate bodies in the course of being wound-up;
(e)

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Relating to the execution of judgments or orders of Court;
(f) Providing for the taking of possession of property that is in a dangerous state or is injurious to the health of human beings, plants or animals;
(g) Relating to enemy property;
(h) Relating to trusts and trustees;
(i) Relating to limitation of actions;
(j) Relating to property vested in bodies corporate directly established by any law in force in Nigeria;
(k) Relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry;
(l) Providing for the carrying out of work on land for the purpose of soil-conservation; or
(m) Subject to prompt payment of compensation for damage to buildings, economic trees or crops, providing for any authority or person to enter, survey or dig any land, or to lay, install or erect poles, cables, wires, pipes, or other conductors or structures on any land, in order to provide or maintain the supply or distribution of energy, fuel, water, sewage, telecommunication services or other public facilities or public utilities.
(3) Notwithstanding the foregoing provisions of

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this section, the entire property in and control of all minerals, mineral oils and natural gas in under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.
These fundamental rights are subject to the provisions of Section 45(1) and (2) of the Constitution (supra) in certain circumstances of each case. For example, insurgents and the property they hold and own are to be treated as enemies of the Federal Republic of Nigeria under Section 44(2)(g) of the Constitution (supra).
Insurgents that levy war on the Federal Republic of Nigeria cannot claim the protection afforded law abiding persons or citizens of Nigeria under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Neither can they hide under the African Charter On Human and Peoples Rights (Ratification and Enforcement) Act, 1983 to levy war on the Nigerian Federation or any part thereof. This will contradict the provisions of the preamble to the Constitution of

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the Federal Republic of Nigeria, 1999 as amended which reads as follows:
We the people of the Federal Republic of Nigeria
Having firmly and solemnly resolve, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God, dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding:
And to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people
Do hereby make, enact and give to ourselves the following Constitution
The Constitution provides as follows:
4(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out

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in Part I of the Second Schedule to this Constitution.
(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States.
(4) In addition and without prejudice to the powers conferred by Subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say:-
(a) Any matter in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(b) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(5) If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void.

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Section 4(6) of the Constitution (supra) also provides as follows: (6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say:-
(a) Any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
(b) Any matter included in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(c) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of

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Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a Court of law or of a judicial tribunal established by law.
(9) Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect. Levying any kind of war by insurrection against the Federal Republic of Nigeria or any part thereof on religious grounds violates the preamble of the Constitution and Part 1 Articles 1-29 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 1983. The preamble and the Articles of the Charter reads as follows:
PREAMBLE
The African States members of the Organization of African Unity, parties to the present Convention entitled African Charter on Human and Peoples Rights.
Recalling Decision 115 (XVI) of the Assembly of Heads of State and Government at its Sixteenth Ordinary Session held in Monrovia, Liberia, from 17 to 20 July 1979 on the preparation of a preliminary draft on an African Charter

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on Human and Peoples Rights, providing inter alia for the establishment of bodies to promote and protect human and peoples rights;
Considering the Charter of the Organisation of African Unity, which stipulates that freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples;
Reaffirming the pledge they solemnly made in Article 2 of the said Charter to eradicate all forms of colonialism from Africa, to coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa and to promote international cooperation having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights;
Taking into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples rights;
Recognizing on the one hand, that fundamental human rights stem from the attitudes of human beings, which justifies their international protection and on the other hand that the

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reality and respect of peoples rights should necessarily guarantee human rights;
Considering that the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone;
Convinced that it is henceforth essential to pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights;
Conscious of their duty to achieve the total liberation of Africa, the people of which are still struggling for their dignity and genuine independence, and undertaking to eliminate colonialism, neo-colonialism, apartheid, Zionism and to dismantle aggressive foreign military bases and all forms of discrimination, language, religion or political opinions;
Reaffirming their adherence to the principles of human and peoples rights and freedoms contained in the declarations, conventions and other instruments adopted by the Organization of African Unity, the Movement of

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Non-Aligned Countries and the United Nations;
Firmly convinced of their duty to promote and protect human and peoples rights and freedoms and taking into account the importance traditionally attached to these rights and freedoms in Africa;
HAVE AGREED AS FOLLOWS:
ARTICLE 1
The Member States of the Organization of African Unity, parties to the present Charter shall recognize the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them.
ARTICLE 2
Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status.
ARTICLE 3
1. Every individual shall be equal before the law
2. Every individual shall be entitled to equal protection of the law.
ARTICLE 4
Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may

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be arbitrarily deprived of this right.
ARTICLE 5
Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
ARTICLE 6
Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
ARTICLE 7
1. Every individual shall have the right to have his cause heard. This comprises:
(a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
(b) The right to be presumed innocent until proved guilty by a competent Court or tribunal;
(c) The right to defence, including the right to be defended by counsel of his choice;
(d) The right to be tried within a reasonable

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time by an impartial Court or tribunal.
2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.
ARTICLE 8
Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.
ARTICLE 9
1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law.
ARTICLE 10
1. Every individual shall have the right to free association provided that he abides by the law.
2. Subject to the obligation of solidarity provided for in Article 29, no one may be compelled to join an association.
ARTICLE 11
Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by

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law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.
ARTICLE 12
1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law.
2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality.
3. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with the law of those countries and international conventions.
4. A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.
ARTICLE 13
1. Every citizen shall have the right to participate freely in the government

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of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.
2. Every citizen shall have the right of equal access to the public service of the country.
3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.
ARTICLE 14
The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.
ARTICLE 15
Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.
ARTICLE 16
1. Every individual shall have the right to enjoy the best attainable state of physical and mental health.
2. State Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
ARTICLE 17
1. Every individual shall have the right to education
2. Every individual may freely take part

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in the cultural life of his community.
3. The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State.
ARTICLE 18
1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral.
2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.
3. The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions.
4. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.
ARTICLE 19
All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.
ARTICLE 20
1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They

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shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.
2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.
3. All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.
ARTICLE 21
1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
2. In case of spoliation, the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.
3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.
4. State Parties to the present

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Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African Unity and solidarity.
5. State Parties to the present Charter shall undertake to eliminate all forms of foreign exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.
ARTICLE 22
1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.
2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.
ARTICLE 23
1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States.
2. For the purpose of strengthening peace, solidarity and friendly

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relations, State Parties to the present Charter shall ensure that:
(a) any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State Party to the present Charter;
(b) Their territories shall not be used as bases for subversive or terrorist activities against the people of any other State Party to the present Charter.
ARTICLE 24
All peoples shall have the right to a general satisfactory environment favourable to their development.
ARTICLE 25
State Parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood.
ARTICLE 26
State Parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and

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freedoms guaranteed by the present Charter.
DUTIES
ARTICLE 27
1. Every individual shall have duties towards his family and society, the State and other legally recognised communities and the international community.
2. The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.
ARTICLE 28
Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.
ARTICLE 29
The individual shall also have the duty:
1. To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need.
2. To serve his national community by placing his physical and intellectual abilities at its service;
3. Not to compromise the security of the State whose national or resident he is;
4. To preserve and strengthen social and national solidarity, particularly when the latter is

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strengthened;
5. To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to its defence in accordance with the law;
6. To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society;
7. To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society;
8. To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.
Insurrection by insurgents will interfere with the legislative powers of the National and State Houses of Assembly to make laws for the peace, order and good government of the Federation or any part thereof contrary to the provisions of Section 4(2) to (7)(k) of the Constitution (supra).
Neither the preamble nor Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended nor the preamble and Articles 1 to 29 of the African Charter

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permits the dismemberment of Nigeria or any part thereof by insurgents through insurgency. When insurgents are arrested and detained, it is for the protection of the interest of defence, public safety, public order, public morality or public health or it should be for protecting the rights and freedoms of other persons. The case or situation is taken out of the provisions of determining the freedom, rights, liberty or justice under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended nor Articles 1-29 of the African Charter, etc. Articles 1-29 of the African Charter, etc, seeks to guarantee and protect the fundamental rights of our people whose cherished desire is for Nigerians to live in unity and harmony as one indivisible and indissoluble Sovereign Nation under God dedicated to the promotion of inter-African Solidarity, world peace, international co-operation and understanding. The chapter is for promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and to consolidate the unity of our people. Insurgents should not be considered as our people or

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as we the people of the Federal Republic of Nigeria under the preamble to the Constitution (supra). They are enemies of the Federation that their acts being inconsistent with the provisions of the Constitution are to extent ought to void ab initio.

In Quo Vadis Hotels and Restaurants Ltd. vs. Commissioner of Lands Mid-Western State & Ors. (1973) 1 All NLR (Pt.1) 660 Coker, JSC held at page 669-673 as follows:
With it must also fail the argument of the learned Solicitor-General which is peculiarly attractive and holds out the view that the Commissioner of Lands had taken out the present proceedings under the common law. Reliance was placed for this proposition on Section 12 of the High Court Law (Mid-West) No.9 of 1964 which reads as follows:
12. The jurisdiction by this Law vested in the High Court shall be exercised (so far as regards procedure and practice) in the manner provided by this Law, the Criminal Procedure Act or any other Act of Parliament or written Law, or by such rules and orders of Court as may be made pursuant to this or any other Law or Act.

Clearly this section of the High Court deals

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with practice and procedure and authorized the High Court of the Mid-West State to adopt in the exercise of the jurisdiction vested in it by law the practice and procedure described in the section. We cannot see how this section eo ipso can confer any power or authority on the Commissioner of Lands to institute the particular type of action with which we are here concerned. What we are concerned with in this controversy is the competence of the present plaintiff to institute the present action.

It is fundamental that a person who institutes an action in Court must be competent to do so and in the case of Ajao vs. Sonola & Anor. delivered on the 10th May, 1973 (see page ante) this Court observed thus with respect to the issue of competence:-
We think it is settled that competency to institute an action is an essential or indeed a vital factor in deciding the competency of the action itself, and if challenged by a defendant, the plaintiff has the onus of establishing it.
See also Lawal & Ors. vs. Younan & Sons & Co. (1961) All NLR 245 at p.254.

The section of the High Court Law to which the learned

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Solicitor-General had referred, deals with the way in which the Court should exercise its jurisdiction. And before us learned Counsel for the second defendants had not attempted to attack or impugn the jurisdiction of the Court to entertain the action if and only if the plaintiff was competent to institute that action.

Learned Solicitor-General had submitted then that the Commissioner of Lands was competent to maintain this and indeed any type of action before a competent Court. No authority was produced or cited to us for this submission since it is universally recognized that the Departments of Government are not, unless specifically provided by statute, entitled to sue or liable to be sued in respect of official acts done by them in their respective official capacities. If that were not so, the Commissioner of Police or the Superintendent of Prisons or the Director of Surveys or indeed any other head of a Government Department would be entitled at the suit or at the expense of government to take out civil actions, against citizens in respect of any cause or causes of action.

We are satisfied that this would lead to monstrous consequence and we are

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not surprised that it was impossible to produce any authority in support of such a submission.

It is convenient to deal with the argument concerning the powers of the Commissioner of Lands under the Native Lands Acquisition Law, for in this connection as well, the learned Solicitor-General had argued that the Commissioner of Lands was by that Law competent to institute the present proceedings. We set out hereunder the provisions of Sections 4, 5 and 6 of the Native Lands Acquisition Law Cap.80:-
4(1) It shall be unlawful for any alien or for any person claiming under an alien to occupy any land belonging to a native, unless the right of the alien to occupy or authorize the occupation of the land:-
(a) Was acquired in a transaction which has received the approval of the Governor in accordance with Section 3; or
(b) Was acquired by virtue of any regulations or order made pursuant to Sub-section (1) or Sub-section (2) of the Section 7; or
(c) Is evidenced by an instrument which has received the approval of the Governor in writing under any statutory provision in force at the time of the approval; or
(d) Was acquired, if

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the land is situate in that part of the Western Region which in the year 1900 was included in the Protectorate of Southern Nigeria, before the 1st of January, 1900, and in the case of lands situate elsewhere, before the 30th March, 1908; or
(e) Is authorized by or under any Ordinance or Law.
(2) Any alien or other person who is in unlawful occupation of land belonging to a native, shall be guilty of an offence and liable on summary conviction to a fine of one hundred pounds or imprisonment for twelve months.
5(1) Where it appears to the Court that any alien, or person claiming to be entitled under an alien, is in unlawful occupation of any land belonging to a native, the Court may, on the application of the Attorney-General or the Commissioner of Lands or any person authorized by the Governor or on its own motion, cause a summons to be issued to such alien or person aforesaid, requiring him to appear before the Court and produce the instrument by virtue whereof the alien, who is occupying the land or under whom the land is occupied, is entitled to occupy or authorize the occupation of the same, or a copy of such instrument certified in

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accordance with the law relating to the registration of instruments.
(2) If on the hearing of such summons the Court shall find that such alien or person claiming under an alien is occupying land belonging to a native, and such alien or person fails to satisfy the Court that such occupation is lawful, the Court shall order such alien or person aforesaid to give up possession of the land, and shall issue such process as may be necessary for enforcing such order.
6. Notwithstanding the provisions of any written law to the contrary, proceedings for an offence against any provision of this Law and all civil proceedings hereunder, shall be brought in the name of the Commissioner of Lands and may be instituted and conduct by him or any person authorized by him generally, or specifically in relation to any particular proceedings or class of proceedings, by writing under his hand.
Manifestly Section 4(2) creates the criminal offence (and the punishment therefore) committed by an alien who is in breach of the provisions of Section 4(1) and similarly Section 5(1) prescribes a summary civil process of ejectment to be initiated by an

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application of the Attorney-General or the Commissioner of Lands or any person authorized by the Governor or on the Courts own motion. The application is for the issue of summons as described in Section 5(1) and the procedure is outlined in the section. Then comes Section 6 which deals with proceedings for an offence against the Native Lands Acquisition Law and all civil proceedings hereunder and the introductory words of which section clearly exclude, for the purposes of the section, the application of the provisions of any written law to the contrary. Learned Counsel for the second defendants had submitted that the Commissioner of Lands acting under the power conferred on him by the Native Laws Acquisition Law can only exercise those powers in conformity with Section 6, that is, for the purposes of the criminal offence or offences under Section 4(2) and the civil proceedings of ejectment described in Section 5(1) and indeed in support of this learned Counsel referred to a number of authorities including the Institute of Patent Agents vs. Lockwood (1894) A.C. 347 where Lord Herschell, L.C., dealing with a similar situation observed thus at

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pages 361-362 of the Report:
You have here, for the first time, a new offence created the offence of practising as a patent agent without being on the register The Legislature, having created that new offence, has prescribed the punishment for it, namely, a penalty of 20. Can it possibly under these circumstances be open to bring the individual, not before the summary Court at small expense to determine the question of his liability to a 20 penalty, but to bring him before the Court of Session with its attendant expense and to ask the Court of Session to make a declaration that he has been breaking the law in a manner which the Legislature has said subjects him to a penalty, and then, having proved that he has rendered himself liable to a penalty, to ask the Court of Session to interdict him, with this result, that if he were to offend again he would not be subject to the summary procedure and the 20 penalty, but would be liable to imprisonment for breach of the interdict

The African Charter, etc, is founded on the principles of freedom, equality, justice and dignity. These elements are

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essential for the achievement of the legitimate aspirations of the African peoples as provided in the second preamble to the Charter. The Charter clearly provides that the enjoyment of rights and freedoms also inspires the performance of duties on the part of everyone hence it is henceforth essential to pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality of economic, social and cultural rights is a guarantee for the enjoyment of civil and political right. See the preambles 6 and 7 of the Charter.
Section 1 of the African Charter provides as follows:
The Member States of the Organization of African Unity, parties to the present Charter shall recognize the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them.
The African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, supra forms part of the domestic laws of this country. See Abacha vs.

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Fawehinmi (2000) 4 SC (Pt.2) 1 at 21 and Ogugu vs. The State (1994) 9 NWLR (Pt.333) 1.

In Langton vs. Hughes (1813) 1 M&S 593 Ellenborough, C.J., said that: What is done in contravention of the provisions of an Act of Parliament, cannot be made the subject-matter of an action, cited with approval in Bostel Bros. Ltd. vs. Hurlock (1948) 2 All E.R. 312 at 313-314 per Somervell, L.J. See also Brightman vs. Tate (1919) 1 K.B. 463; Re Mahmoud and Ispahani (1921) 2 K.B. 716.
An insurgent or a treasonable felon that levies war on Nigeria cannot claim the protection afforded in Chapter IV of the Constitution nor Articles 1-29 of the African Charter, etc.
Arising from this is that no illegality should be enforced by the Courts of this land. See Scott vs. Brown (1891-94) All E.R. Rep.654 at 657; Pan Bishildei Ltd. vs. 1st Bank Nig. Ltd. (2000) FWLR (Pt.2) 177. Neither should a Court of this land allow anybody to profit from his or her wrongdoing. See The Capella (1861-73) All E.R. Rep. 433. In Brosette Manufacturing Nig. Ltd. vs. M/S Ola Ilemobola Ltd. (2007) All FWLR (Pt.379) 1340 where Ogbuagwu, JSC held at page 1380 to 1381

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as follows:
This Court will not oblige it. This is because, it will not allow any person or party or body to benefit from his or its own wrong. See the case of Solanke vs. Abed (1962) 1 All NLR 230, (1962) NRNLR 92 and Re London Celluloid Y.O. (1888) 3 Ch.D. 206. The appellant, going by its petition alleging illegal sublease, eventually became a party to the alleged illegal sublease.
The 1st respondent pleaded in paragraph 41 of its amended statement of claim about the above facts and curiously and significantly as also stated by the Court below at page 224 of the records, in its paragraph 18 of its statement of defence, the appellant admitted the said averment in the 1st respondents paragraph 41 thereof. I am not surprised that the Court below stated inter alia, as follows:
The fourth respondent deserves whatever eventually befalls it and deserves no sympathy for his fate or misfortune. Its hands were soaked in blood and could not expect equity to come to its aid. The outcome of this appeal is not against an innocent third party but a party who deliberately set out to plan and execute evil and has unfortunately, sorry,

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fortunately reaped whirlwind.
I agree, except that, with respect, I do not agree about the appellant, soaking its hands in blood, although this expresses the disgust of the learned Justice in respect of the whole or entire scenario in all the circumstances of this case.

The Federal Government should build or establish specialized prisons or camps for the detention of insurgents and treasonable offenders. The United States of America has Guatemala Bay for such a purpose though she is the mother of all democracies.

Sections 13-14 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides as follows:
13. It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution.
14(1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.
(2) It is hereby, accordingly declared that:
(a) Sovereignty belongs to the people of Nigeria from whom government through

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this Constitution derives all its powers and authority;
(b) The security and welfare of the people shall be the primary purpose of government: and
(c) The participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.
(3) The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few State or from a few ethnic or other sectional groups in that Government or in any of its agencies.
(4) The composition of the Government of a State, a local government council, or any of the agencies of such Government or council, and the conduct of the affairs of the Government or council or such agencies shall be carried out in such manner as to recognize the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the people of the Federation.

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Insurgents do not intend to participate in the government of Nigeria. They do not cherish peaceful co-existence with other Nigerians hence should not be treated with kid gloves. Their aims and objectives contradicts Section 15-17, 21, 23-24 of the Constitution (supra) which reads as follows:
15(1) The motto of the Federal Republic of Nigeria shall be Unity and Faith, Peace and Progress.
2) Accordingly, national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited.
(3) For the purpose of promoting national integration, it shall be the duty of the State to:
(a) Provide adequate facilities for and encourage free mobility of people, goods and services throughout the Federation.
(b) Secure full residence rights for every citizen in all parts of the Federation.
(c) Encourage inter-marriage among persons from different places of origin, or of different religious, ethnic or linguistic association or ties; and
(d) Promote or encourage the formation of associations that cut across ethnic,

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linguistic, religious and or other sectional barriers.
(4) The State shall foster a feeling of belonging and of involvement among the various people of the Federation, to the end that loyalty to the nation shall override sectional loyalties.
(5) The State shall abolish all corrupt practices and abuse of power.

Insurgents do not encourage national integration. The Constitution also provides as follows:
16(1) The State shall, within the context of the ideals and objectives for which provisions are made in this Constitution.
(a) Harness the resources of the nation and promote national prosperity and an efficient, a dynamic and self-reliant economy;
(b) Control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity;
(c) Without prejudice to its right to operate or participate in areas of the economy, other than the major sectors of the economy, manage and operate the major sectors of the economy;
(d) Without prejudice to the right of any person to participate in areas of the economy

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within the major sector of the economy, protect the right of every citizen to engage in any economic activities outside the major sectors of the economy.
(2) The State shall direct its policy towards ensuring:
(a) The promotion of a planned and balanced economic development;
(b) That the material resources of the nation are harnessed and distributed as best as possible to serve the common good;
(c) That the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group; and
(d) That suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions and unemployment, sick benefits and welfare of the disabled are provided for all citizens.

The maximum welfare, freedom and happiness of every citizen on the basis of social justice, equality of status and opportunity will not be secured by the state if insurgents are allowed to have their way. The Constitution further provides that:
17(1) The State social order is founded on ideals of Freedom,

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Equality and Justice.
(2) In furtherance of the social order:-
(a) Every citizen shall have equality of rights, obligations and opportunities before the law;
(b) The sanctity of the human person shall be recognized and human dignity shall be maintained and enhanced;
(c) Governmental actions shall be humane;
(d) Exploitation of human or natural resources in any form whatsoever for reasons, other than the good of the community, shall be prevented; and
(e) The independence, impartiality and integrity of Courts of law, and easy accessibility thereto shall be secured and maintained.
(3) The State shall direct its policy towards ensuring that:-
(a) All citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment;
(b) Conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life;
(c) The health, safety and welfare of all persons in employment are safeguarded and not endangered or abused;
(d) There are adequate

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medical and health facilities for all persons:
(e) There is equal pay for equal work without discrimination on account of sex, or on any other ground whatsoever;
(f) Children, young persons and the age are protected against any exploitation whatsoever, and against moral and material neglect;
(g) Provision is made for public assistance in deserving cases or other conditions of need; and
(h) The evolution and promotion of family life is encouraged.

21. The State shall –
(a) Protect, preserve and promote the Nigerian cultures which enhance human dignity and are consistent with the fundamental objectives as provided in this Chapter; and
(b) Encourage development of technological and scientific studies which enhance cultural values.

23. The national ethics shall be Discipline, Integrity, Dignity of Labour, Social Justice, Religious Tolerance, Self-reliance and Patriotism.
24. It shall be the duty of every citizen to:-
(a) Abide by this Constitution, respect its ideals and its institutions, the National Flag, the National Anthem, the National Pledge, and legitimate authorities;

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(b) Help to enhance the power, prestige and good name of Nigeria, defend Nigeria and render such national service as may be required;
(c) Respect the dignity of other citizens and the rights and legitimate interests of others and live in unity and harmony and in the spirit of common brotherhood;
(d) Make positive and useful contribution to the advancement, progress and well-being of the community where he resides;
(e) Render assistance to appropriate and lawful agencies in the maintenance of law and order; and
(f) Declare his income honestly to appropriate and lawful agencies and pay his tax promptly.

The Fundamental Objectives and Directive Principles of State Policy are under threat from insurgents operating in all nooks and corners of the Federal Republic of Nigeria. If this is not timeously arrested or suppressed by preventive arrests or detention of insurgents, the Federal Republic of Nigeria may soon or in the near future become divisible and dissoluble, no longer a Sovereign Nation under God.

In Dokubo-Asari vs. FRN (2007) 12 NWLR (Pt.1048) 320 Muhammad, JSC held at pages 358-359 as follows:

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Let me observe from the outset, that although the respondent did not advert its mind to fully address the appellants issue, I must draw the attention of the learned Counsel for the appellant that the main discourse of his submission on issue two is on state of emergency. I think this is an unnecessary voyage in a world of fantasy. What is the relationship between grant of bail or refusal thereof with the suspension of a part of the Constitution i.e. Section 35 of that Constitution? What brought about the provisions of the Constitution which relate to the declaration of emergency? If refusal of bail to any person accused to have committed a crime will amount to jettisoning some part of the Constitution, or will invoke the declaration for a period of emergency, then this country, which I believe, is populated by majority of law abiding citizens, who always carry out their normal day to day life without instilling any fear or causing any havoc to anyone, at any time, will be doomed. The reference made by learned Counsel to provisions on emergency situations is nothing other than mere occasion of facts to whip-up sentimental sympathy. The learned

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Counsel is aware that Courts do not make laws. They interpret laws. Courts cannot amend the Constitution. Courts cannot suspend the Constitution or any part thereof. See: the case of Attorney-General of Bendel State vs. Attorney-General of Federation & Ors. (1981) 10 SC 1 at 134 (1981) NSCC 314; (1982) 3 NCLR 1. However, if, in its role of interpretation, a Court makes a pronouncement which may have the weight and effect of declaring a law or some part of the Constitution for that matter null and void, the Court must find support from the same Constitution or any other statute of equal force. The pronouncement by the Court below is that where National Security is threatened or there is the real likelihood of it being threatened, human rights or the individual rights of those responsible take second place. Human rights or individual rights must be suspended until the National Security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble Sovereign Nation, is certainly greater than any citizens liberty or right. Once the security of this nation is in

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jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.

Niki-Tobi, JSC held at page 363 as follows: It does not appear that learned Counsel for the appellant has examined the confessional statement of the appellant. I should quote some extracts from that statement:
The Niger Delta People Volunteer Force (NDPVF) which I led have totally disarmed. Hence armed struggle will predicate on the activities of the regime of the Nigerian State. I will pursue the course of the disintegration of Nigeria through the process of the Peoples National Conference The government of General Obasanjo is illegitimate. It retains power through the manipulation of the electoral process This has made me and others like me resent the government of the regime of General Obasanjo. When Nigeria eventually disintegrate the Ijaws will form a country of their own.
I clearly see signs of war from the above. I therefore agree with the Court of Appeal that there is a threat to national security. There is instability in the Niger Delta area and I do not

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think the appellant will assist in reducing the instability and turbulence there. On the contrary, it is clear from his statement that there is every likelihood for him to foment or instigate more trouble. This is certainly not in the interest of the region and Nigeria as a whole. The appellant should therefore be where he is to take his trial. He could be discharged and acquitted. He could be sentenced. That is for the trial Court. For now, all the criteria for granting trial bail are against him.

M.T. Salihu, J., sitting in the Federal High Court, Maiduguri, Borno State treated the respondent with kid-gloves when he held at page 193 to 195 of the printed record as follows:
From the affidavit evidence before the Court, I am bound to find that the detention of the applicant for a period of 3 years one month and 8 days without being arraigned before a Court of competent jurisdiction to hear the allegations against him is not supported by the Constitution. In fact, no matter the seriousness or the gravity of the allegation against the applicant, the law presumes him to be innocent. Indeed, it is unconstitutional. The detention is in breach

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of the clear provisions of the Constitution which guarantees the Fundamental Rights of all the people living in this country. Section 35(4) provides:-
Any person who is arrested or detained in accordance with Sub-section (1)(c) of this Constitution shall be brought before a Court of law within a reasonable time and if he is no tried within a period of (a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
Reasonable time is explained in Sub-section (a) and (b). In any case, in the case at hand applicant that has been under the custody of the respondents from the 18th day of September, 2012 till date or whose letter for prosecution was forwarded to the Honourable Attorney-General of the Federation since on the 13th March, 2014 is yet to be arraigned before a Court of competent jurisdiction to face the trial of the allegations leveled against

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him. There is nothing before the Court to show or suggest that the prosecution is requiring a specific period of time to arraign applicant before a Court of competent jurisdiction. Nor is a prepared charge sheet against applicant exhibited to show that the prosecution is ready or willing to prosecute the applicant.
On the whole the prayers of the applicant under paragraphs (a) and (c) of his motion on notice are granted.
And I so grant.

The learned Federal Judge did not appreciate the fact that the death penalty is the verdict, upon conviction of an insurgent or a treasonable offender. The provisions of Section 35(4)-(6) of the Constitution (supra) nor Articles 4 and 5 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 1983 are therefore, inapplicable to the facts in this appeal. All the cases cited in argument by the learned Counsel to the respondent, relate to bailable offences; none is founded on insurrection by insurgents or treasonable felons.

In Dokubo-Asari vs. FRN (supra), Niki-Tobi, JSC held at page 362 to 363 as follows:
The general criteria for granting bail at the

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trial Court are follows: (a) The availability of the accused to stand trial. (b) The nature and gravity of the offence. (c) The likelihood of the accused committing offence while on bail. (d) The criminal antecedents of the accused. (e) The likelihood of the accused interfering with the course of justice. (f) Interference with investigations. The above apart, the criteria for granting bail by the trial Court include (a) Likelihood of further charge being made. (b) The probability of guilt. (c) Detention for the protection of the accused. (d) The necessity to procure medical or social report pending a final disposal of the case.
The main function of bail is to ensure the presence of the accused at the trial. See R. vs. Jammal 16 NLR 54; State vs. Okafor (1964) ENLR 96; R. vs. Rose (1898) 18 Cox C.C. 717; R. vs. Robinson (1854) 23 L.J. Q.B. 286; Ex parte Milburn 34 US 704 (1835); US vs. Ryder 110 US 729; Stack vs. Boyle 342 US 1 (1951). Accordingly, this criterion is regarded as not only the omnibus one but also the most important. As a matter of law and fact, it is the mother of all the criteria enumerated above. Dealing with the criterion, the working

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part on bail procedure in Magistrates Court in the United Kingdom, said in paragraph 22 of the report:
There are a number of other considerations to be taken into account in deciding a bail application, but in general they are not in themselves reasons for granting or refusing bail, but indicatory of the likelihood or otherwise of the defendants appearance.
As a matter of fact, all other criteria are parasitic on the omnibus criterion of availability of the accused to stand trial. Arising directly from the omnibus criterion is the criterion of the nature and gravity of the offence. It is believed that the more serious the offence, the greater the incentive to jump bail although this is not invariably true. For instance, an accused person charged with capital offence is likely to flee from the jurisdiction of the Court than one charged with a misdemeanour, like affray. The distinction between capital and non-capital offence in one way crystallized from the realization that the atrocity of the offence is directly proportional to the probability of the accused person absconding. But the above is subject to the qualification

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that there may be less serious offences in which the Court may refuse bail, because of its nature. This does not however apply in this case because the appellant is charged with treasonable felony, a heinous offence carrying a prison term of life.
Where is the guarantee that if bail is granted to an insurgent or a group of insurgents, they may not retreat to their own countries or bases outside Nigeria from where they are operating or levying war against peace loving Nigeria? There is none.

This appeal is allowed. The appellants sought the following relief in the Notice of Appeal:
An order setting aside the entire judgment of the trial Court in its entirety.
I grant the appellants the above relief in its entirety.

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Other Citations: (2016)LCN/8827(CA)

Sylvester Odili Akubeze V. Chief Frank Onwudiwe Obi & Ors (2016)

LawGlobal-Hub Lead Judgment Report

TOM SHAIBU YAKUBU, J.C.A.

The appellant together with late Anthony Ikechukwu Akubeze (whose name was struck out by this Court on the 17th day of June, 2015) instituted Suit No. 0/667/2004 against the 1st set of respondents at the High Court, Onitsha on the 16th day of December, 2004 claiming the following reliefs:
?1. An Order of injunction restraining the 1st defendant, his servants and agents from collecting from the 2nd to the 22nd defendants the rents due from them for their holdings and the areas they occupy at 1A, Sokoto Road, Onitsha.
2. An order of injunction restraining the 2nd to the 22nd defendants from paying to the 1st defendant the rents due from them to the plaintiffs for the holdings and areas they occupy at 1A, Sokoto Road, Onitsha.
3. An order of the Court requiring the 2nd to the 22nd defendants to pay to the plaintiffs the rents due from them to the plaintiffs for the holdings and areas they occupy at 1A Sokoto Road, Onitsha.
4.As against the 1st defendant, the plaintiffs claim the sum of N1,469,961.00 (One Million four Hundred and Sixty-Nine Thousand Nine Hundred and Sixty-One

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Naira) being the balance of the rents up to the end of 2002 which the 1st defendant collected for the plaintiff from the tenants occupying various holdings and areas at 1A, Sokoto Road, Onitsha.
5.As against the 1st defendant, the plaintiffs claim the sum of N204,000.00 (Two Hundred and Four Thousand Naira) being the rent due from him to the plaintiffs for the year 2003 for the six stores and the two flats in the second floor of the two storey building which the 1st defendant occupies at 1A, Sokoto Road, Onitsha.
6. As against the 1st defendant, the plaintiffs claim the sum of N715,000.00 (Seven Hundred and Fifteen Thousand Naira) being the balance of the rents for the year 2003 which the 1st defendant collected for the plaintiffs from the 2nd to the 22nd defendants for the holdings and area they occupy at 1A, Sokoto, Road, Onitsha.
7. In the alternative to (6) above the plaintiffs claim against the 2nd to the 22nd respondents the total sum of N715,000.00 (Seven Hundred and Fifteen Thousand Naira) being the balance of the rents due from them to the plaintiffs for the year 2003 the liability of each of them being limited to that person?s

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rents for the said year 2003.
8. The plaintiffs claim severally against all the defendants payment of their respective rents as herein before set out for the year 2004 in respect of their holdings and areas they occupy at 1A, Sokoto Road, Onitsha.?

The appellant?s statement of claim is at pages 8 to 12 of the record of appeal.

On the 12th day of July, 2005, the 2nd set of respondents as applicants filed a notice of motion dated 12th July, 2005, praying the Court for an order joining them as the 2nd set of defendants in Suit No. 0/667/2004 and for them to defend the suit for themselves and as representing the Rebecca John Ogene Chinekwe family of Ndoni in Rivers State of Nigeria excluding the plaintiffs. The appellant filed various counter-affidavits in opposition to the application.

After hearing the parties, the learned trial Judge on the 11th day of April, 2006, delivered his ruling and granted the application for joinder. The appellant being dissatisfied with the ruling of the Court below has appealed to this Court.

?The appellant?s brief of argument dated 22nd October, 2015 and filed on 24th October, 2015 was

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settled by J. A. Okwe, Esq. for G. R. I. Egonu, SAN. In it, four (4) issues were formulated for the determination of the appeal, namely:
(1) Whether by the nature of the reliefs sought by the appellant in this case, the 2nd set of respondents are necessary parties to the suit?
(2) Whether the 2nd set of respondents discharged the onus on them as to their locus standi to be joined in the suit?
(3) Whether the learned trial Court was right in introducing into this case a non-existent issue as to who between the appellant and 2nd set of respondents is entitled to rents accruing from the property the subject matter of the litigation?
(4) Whether the learned trial Court was right in failing to consider and properly apply Order 3 Rule 10 of the High Court Rules of Anambra State, 1988?

The Amended 1st ? 22nd Respondents? brief of argument, settled by O. J. Nnadi, Esq., SAN, was dated and filed on 23rd October, 2015. He identified a sole issue for the determination of the appeal, thus:
Whether the trial Court was right in the Ruling of the court joining the 2nd set of defendants in the above suit as parties.
A notice of

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Preliminary Objection was raised at paragraph 4 to 4.01 of the same brief of argument, to the effect that the appeal is incompetent and that it should be dismissed or struck out. Arguments on it were ventilated at paragraphs 4.02 ? 4.13 of the said brief of argument.

The 2nd set of Respondents? brief of argument, settled by Chudi Obieze, Esq., A C I arb., was dated 22nd October, 2015 and filed on 23rd October, 2015. He nominated a sole issue therein, for the determination of the appeal, as follows:
Whether the trial Court rightly joined the 2nd set of Respondents in this suit, on the grounds that they are necessary parties?

The appellant?s further amended reply to the 1st set of Respondents? preliminary objection and also the appellant?s further amended reply to the 2nd set of Respondents? brief were each filed on 29th October, 2015.

It is expedient that the preliminary objection to the hearing of the appeal, at the instance of the 1st ? 22nd Respondents, be first considered and determined at this stage. The grounds upon which the preliminary objection, is predicated are that:
(a) The appeal is

5

an interlocutory appeal over the exercise of discretion by the trial judge based on mixed law and facts.
(b) No leave of the Trial Court nor this Court was obtained by the Appellant before filing the appeal pursuant to Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria as well as Section 14(1) of the Court of Appeal Act and Order 7 of the Court of Appeal Rules 2007.
(c) Merely christening a ground of appeal as ?error-in-law or Misdirection in law? is not enough to make an appeal requiring leave but none was obtained,competent.

Arguments on the preliminary objection were canvassed at paragraphs 4.02 ? 4.13 of the Amended 1st ? 22nd Respondents? brief of argument. The main thrust of their contention is that since the application by the 23rd ? 25th respondents, to be joined as parties to the appellant?s action, involves the exercise of the court?s discretion, which border on mixed law and facts, the appellant ought to have sought and obtained the leave of the trial Court or of this Court, before filing his notice and grounds of appeal. He referred to several authorities, such

6

as In Re: The Vessel M. V. Lupex (1993) 2 NWLR (pt. 278) 670 at 682; Williams v. Mokwe (2005) 14 NWLR (pt. 945) 249 (SC); IBWA Ltd v. ANAMCO Ltd (1995) 5 NWLR (pt. 396 428; Ogunleye v. Military Administrator, Ondo State (1996) 9 NWLR (pt. 471) 176; Mohammed v. Olawunmi (1990) 2 NWLR (pt. 133) 438 at 475 (SC); NALSA Team v. NNPC (1991) 8 NWLR (pt. 212) 652 etc all to the effect that where a ground of appeal is of mixed law and facts and no leave of the trial court nor of the appellate Court was obtained before filing the notice of appeal, the latter is incompetent and should be struck out.

The appellant, arguing per contra, in his further amended reply to the 1st set of respondents? contention, submitted that by virtue of Section 241(1)(b) of the 1999 Constitution of the Federal Republic of Nigeria, the appellant can appeal as of right in respect of grounds of law contained in the Notice of Appeal. Reliance was placed on Dr. Oliver Onyali & Anor v. Chief Nwankwo Okpala & Ors (2001) 1 NWLR (pt. 694) 282 at 297. He insisted that grounds 1, 2, 3 and 4 are grounds of law and not grounds of mixed law and facts. He referred to Metal Construction

7

(West African) Ltd v. D. A. Migliore & Ors. In re Miss C. Ogundare (1990) 1 NWLR (pt. 126) 299 at 315; Victor Adegoke Adewunmi & Anor v. Attorney-General of Ekiti State & Ors (2002) 2 NWLR (pt. 751) 4754 at 519; Alhaji Aromire & Ors v. J. J. Awoyemi (1972) 1 All NLR 101 at 107-108; Raymond Inyang & Ors v. Engr. Dr. Maurice A. Ebong (2002) 2 NWLR (pt. 751) 284 at 340; Chief Abusi David Green v. Chief Dr. E. T. Dublin Green (1987) 3 NWLR (pt. 61) 480; Mrs R. A. Idakula v. Alhaji Mohammed Adamu (2001) 1 NWLR (pt. 694) 322 at 341; Paul Nwadike & Ors v. Cletus Ibekwe & Ors (1987) 4 NWLR 718 at 733.

Resolution of Preliminary Objection:
Now, Section 241(1)(a) and (1) (b) and 242(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended, provide as follows:
?241. (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases ?
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) where the ground of appeal involves questions of law

8

alone, decisions in any civil or criminal proceedings.
242 (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal?
It is apparent from Section 241(1)(a) above, that an appeal to this court, is as of right against any final civil or criminal decision of the High Court. And under Section 241(1)(b), the appeals on grounds of law alone, are of right. Therefore, where an appeal, is from an interlocutory decision of the trial Court, which borders on mixed law and facts, or facts, the leave of the trial Court or of this Court, must first be sought for and obtained, before the appeal can be filed. Hence, it is clear that two categories of rights of appeal are created under the Constitution namely appeals as of right and appeals which require leave of the trial court or this Court.

?There has been a great deal of arguments and misunderstanding on the distinction between a ground of law and a ground of mixed law and fact and also a ground of fact. The Supreme

9

Court, unrelentlessly has graciously restated the road map to be navigated by the appellate Courts, in determining what they are. For example, in Jim-Jaja v. Commissioner of Police, Rivers State & 2 Ors (2012) 12 SCM (pt. 2) 295 at 290 ? 291; (2012) LPELR ? 20621 (SC) at pp. 10 ? 11, per Ngwuta, JSC, it was reiterated that:
?A ground of law, as distinct from a ground of mixed law and fact and a ground of fact, was explained clearly by Onnoghen, JSC in Ehinlawo v. Oke & Ors (supra) …… that: ?A ground of law arises where the ground of appeal shows that the Court of trial or appellate court misunderstood the law or misapplied the law to the proved or admitted facts.? Where the substance of a ground of appeal reveals a misapplication of law to facts proved or admitted at the trial, the ground of appeal is a ground of law and not of mixed law and fact or a ground of fact.?
On this, further see: B. A. S. F. Nigeria Ltd v. Faith Enterprises Ltd (2010) 1 SCNJ 223 at 247 ? 248; Garuba & Ors v. Omokhodion & Ors (2011) LPELR ? 1309 (SC) at 45 ? 47; (2011) 7 SCM 85; Calabar v. Ekpo

10

(2008) 2 SCNJ 307 at 342 ? 344; Njemanze v. Njemanze (2013) 8 NWLR (pt. 1356) 376 at 393 ? 395 (SC); Minister of Petroleum & Anor v. Shipping Line (2010) 5 SCNJ 111.

It is trite too, that where an interlocutory appeal is to be lodged against a ruling of a trial Court, and the complaint is not purely on law, the appellant must obtain the leave of the trial Court or of this Court. Just see: Garuba v. Omokhodion (supra) at p. 45; Nwaolisah v. Nwabufoh (2011) LPELR ? 2115 (SC) at 25 ? 26.

Furthermore, it is settled law that even only one ground of appeal which is competent out of a number of grounds of appeal can on its own sustain the appeal. Nwaolisah v. Nwabufoh (supra) at p. 27; (2011) 8 SCM 139.

?Let us now apply the above restatement of the law, to the appellant?s grounds of appeal. Upon my perusal of grounds 1 and 3 of the notice of appeal, they appear to me, to be grounds of mixed law and facts. There was no way the application for joinder of the 23rd ? 25th respondents as parties to the appellant?s action, can be determined, without considering the affidavit, in support of the application and the

11

appellant?s counter-affidavits, opposing the application. The alleged facts deposed to in the affidavits and counter-affidavits by the parties are contentious and not admitted facts. Therefore, the learned trial judge was bound to exercise his discretion one way or the other, the contentious facts, notwithstanding. I am of the considered and firm opinion that grounds 1 and 3 are of mixed law and facts. They are liable to be struck out, since no leave of the Court below nor of this Court was obtained before they were filed.

On the other hand, on my perusal of grounds 2 and 4, they are pure grounds of law. They did not require any leave of court for them to be filed. They are therefore competent. In effect, the preliminary objection succeeds in respect of grounds 1 and 3 only but fails in respect of grounds 2 and 4.

In consequence of the above, I shall now proceed and determine the appeal on its merits. I adopt the sole issue nominated by the 23rd ? 25th respondents, in my consideration and resolution of this appeal.

?Appellant?s Arguments:
The appellant?s learned counsel contends that it is the appellant?s family

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that has at all material times been the owner in possession of 1A, Sokoto Road, Onitsha and that the 1st set of respondents are the tenants at 1A Sokoto Road, Onitsha who had been paying their rents to the appellant?s family. It is the learned counsel?s submission that the reliefs sought by the appellant in the action is against the 1st set of respondents and there is no relief sought against the 2nd set of respondents because according to him, the appellant has no cause of action against the said 2nd set of respondents. Therefore, it is his submission that the appellant cannot be compelled to proceed against a person or persons whom he has no desire and intention to sue. He referred to Dollfus Mieg Et Compagnie S. A. v. Bank of England (1950) 2 All E. R. 605 at 608; Chief Abusi David Green v. Chief Dr. E. T. Dublin Green (1987) 3 NWLR (pt. 61) 480 at 492; In Re Yesufu Faleke Mogaji v. Oyedeji Akandi Mogaji & Ors (1980) 1 NWLR (pt. 19) 759 at 768; Alhaji J. Aromire & Ors v. J. J. Awoyemi (1972) 1 All NLR 101 at 107 ? 108; Mc Cheane v. Gyles (No. 2) 1 Ch. 911 at 97; Amos v. Raphael Truck & Sons Ltd (1956) 1 QB 357 at 369; Alhaji

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Aminu Dantsoho v. Alhaji Abubakar Mohammed (2003) 6 NWLR (pt. 817) 457 at 488. He furthermore submitted that since the 2nd set of respondents are laying claim to the property at 1A, Sokoto Road, Onitsha, which is not the claim of the appellant in the action at the Court below, the 2nd set of respondents must first sue the appellant and succeed in their claim of title to the said property before they can lay claim to the rents accruing from the same property. He insisted that the 2nd set of respondents have not disclosed or shown their direct legal rights/interest to the property in question, which have been threatened. He referred to Col. Hassan Yakubu (Rtd) v. The Governor of Kogi State & Ors (1995) 8 NWLR (pt. 414) 386 at 402. Therefore, according to him, the 2nd set of respondents, have no locus standi to bring the application for joinder at the Court below. He placed reliance on Alhaji Suara Yusuf v. Lasisi Kode (2002) 6 NWLR (pt. 762) 231 at 250.

?The appellant?s learned counsel furthermore, submitted that the trial judge wrongly introduced the issue of claim for rents for the 2nd set of respondents which was not in their application to be

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joined as parties to the appellant?s action. He insisted that it is not the function of the Court to introduce and formulate an issue for a party which was not put forward by the party. He referred to Punch Nig. Ltd v. B. B. Eyitene (2001) 17 NWLR (pt. 741) 228 at 255; Iwuorie Iheanacho & Ors v. Matthias Chigere & Ors (2004) 17 NWLR (pt. 901) 130 at 150; S. A. Adebanjo v. A. A. Brown (1990) 3 NWLR (pt. 141) 661 at 675; Alhaji Ahmadu Babale v. Amina Amina Abdulkadir (1993) 3 NWLR (pt. 281) 253 at 260.

Finally, the appellant?s learned counsel submitted that the learned trial judge did not properly consider and apply Order 3 Rule 10 of the Anambra State High Court (Civil Procedure) Rules, 1988 because the 2nd set of respondents did not provide sufficient materials to show that they are necessary parties to the appellant?s action and their being joined as parties to the action, led to a miscarriage of justice, against the appellant. He placed reliance on Alhaji J. Aromire & Ors v. J. J. Awoyemi (supra).
1st set of Respondents? Arguments:
Learned senior counsel to the 1st set of respondents, contended that by the

15

affidavit evidence placed before the Court by the 2nd set of respondents, they say that they are the proper persons entitled to the rents being paid by the 1st set of respondents, with respect to the property at No. 1A Sokoto Road, Onitsha and the former cannot fold their hands and stand by without being joined to the appellant?s action when their interest in the property in question is at stake. He insisted that the learned trial judge was right in the exercise of his discretion pursuant to Order 3 Rule 10 of the Anambra State High Court Civil Procedure Rules, 1988; and joining the 2nd set of respondents to the appellant?s action. He referred to Kalu v. Uzor (2004) 12 NWLR (pt. 886) 1 at 22; Green v. Green (1987) 3 NWLR (pt. 61) 480 SC; In Re: Abacha (2000) 5 NWLR (pt. 655) 50. He furthermore submitted that since the 2nd set of respondents have demonstrated by their affidavit evidence, to the effect that they are entitled to the rents being paid with respect to the property in question, they are necessary parties who must be joined to the appellant?s action for a complete adjudication of the action and that the determination of the

16

appellant?s claim, will affect the interests of the 2nd set of respondents, and that whether or not the 2nd set of respondents will succeed in their claim is not the issue for determination at this stage, but at the trial.
2nd set of Respondents? Arguments:
The learned counsel to the 2nd set of respondents, submitted that by virtue of Order 3 Rule 10 of the Anambra State High Court Civil Procedure, Rules 1988, the 2nd set of Respondents by their affidavit evidence, have shown that they are entitled to the subject matter of the appellant?s action, they also claim some share or interest in the subject matter of the action and that they will be affected by the result of the action, at the end of the day. He contended that in an application for joinder as a party to an action, the applicant needs only to establish prima facie, that he has sufficient legal interest in the subject matter of the action and that it is after being joined to the action, that he has the onus of proving his entitlement to the said subject matter of the action. He referred to Odeleye v. Adepegba (2001) 5 NWLR (pt. 706) 330 at 350; Busari v. Oseni (1992) 4 NWL5R

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(pt. 237) 557; M. H. W. U. N. v. Min. Of Labour and Productivity (2005) 17 NWLR (pt. 953) 120 at 158 ? 159; Yakubu v. Gov. Of Kogi State (1995) 8 NWLR (pt. 414) 386.

He furthermore, submitted that the learned trial judge rightly exercised his discretion, by joining the 2nd set of respondents to the appellant?s action, in accordance with the provisions of Order 3 Rule 10 of the Anambra State High Court Civil Procedure, Rules 1988 and on the authority of Kalu v. Uzor (2004) 12 NWLR4 (PT. 886) 1 at 22.
Resolution:
The law is well settled to the effect that the Court suo motu, or on the application of any of the parties to an action or on the application of any person who has demonstrated his sufficient legal interest, in the same action, can be joined as a party to the action, if the Court is satisfied that the applicant is a necessary party. Chief Onwuka Kalu v. Chief Victor Odili (1992) 6 SCNJ (pt. 1) 76 at 115; Ayankoya v. Olukoya (1996) 4 NWLR (pt. 440) 1; Nabaruma v. Offofile (2005) 13 NWLR (pt. 891) 599. The rule with respect to joinder of parties, was succinctly stated by the Supreme Court in In Re: Yesufu Faleke & Ors (1986)

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1 NWLR (pt. 19) 759 at 768; (1986) LPELR ? 1891 (SC) at pg. 41 per Karibi Whyte, JSC., inter alia:
?This rule deals essentially with joinder of parties to an action. Such joinder can be made by the Court suo motu or on application by a person or persons who can satisfy the requirement that his joinder is necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter. The governing principle which is a cardinal rule for the administration of justice is that principle conveniently expressed in Latin: Interest rei Publicae ut sit finis litium. The termination of litigation is in public interest. Hence where the issues between the parties involve third parties whose interest are affected and the omission of which was bound to result in further litigation, such parties are those whose presence will be necessary for the effectual and complete adjudication of the matter before the Court, and their presence as parties is a sine qua non for the purpose. See Oladeinde & Anor v. Oduwole (1962) WNLR 41 at p. 44.?
?His Lordship, furthermore referred to Ntiashagwo v.

19

Amodu & Anor (1959) WRNLR at p. 273 ? where the plaintiff sued the 1st respondent alone for the recovery of possession of the house known as No. 16 Labinjo Steet, Mushin. The second defendant who lived in the same house with the 1st defendant, and who subsequently bought this house from plaintiff for 80 to whom 1st defendant had sold the house sought and obtained a Court order to be joined in the suit.

Now, for an application of this nature to succeed, the applicants like the 2nd set of respondents herein, must establish that:
(a) their presence in the action is necessary for the effectual adjudication of the matter, and
(b) the plaintiff such as the appellant herein must have a claim against the 2nd set of respondents and desire to pursue the claim against them, and
(c) the interest of the applicant in the action must be identical with that of the existing defendant, that is, the 1st of respondents herein.

?In the instant case, there is no doubt and the learned trial judge, rightly found that the claim of the appellant, as presently constituted, had nothing to do with the 2nd set of respondents. That is, the appellant

20

has no cause of action against the 2nd set of respondents. Is the interest of the 2nd set of respondents identical with that of the existing defendant ? 1st set of respondents?

?The first relief claimed or prayed for by the appellant, is an injunctive order restraining the 1st defendant from collecting rents at 1A, Sokoto Road, Onitsha. There is Exhibit ?D? exhibited to paragraph 6 of the applicants?/2nd set of respondents? further affidavit filed on 4th Nov., 2005 at page 55 of the record of appeal; to the effect that the said Exhibit D was a rent receipt in respect of the property in question, issued to the 1st respondent on 20th July, 1995 for the period covering July ? December, 1995, on behalf of the Ogene Chinekwe family estate. This means that just as the 1st respondent had collected some rents from tenants in respect of the property in question, so also the 2nd set of respondents, had collected some rents from some tenants in respect of the same property at No. 1A, Sokoto Road, Onitsha. To that extent, it can be said that the interest of the applicants is identical with that of the existing 1st respondent. I

21

think that, there ought to be some explanation with respect to the capacity in which the applicants/2nd set of respondents, collected some rents as evidenced by Exhibit D. I had thought that the appellant should have responded to this development in the amended appellant?s reply brief to the 2nd set of respondents? brief of argument. Therefore, the nagging question remains to the effect that, if the applicants have no interest in the property in question, how was it that they issued Exhibit D as a rent receipt to the 1st respondent. It is pertinent and instructive to note that paragraph 6 of the applicants? further affidavit at page 55 of the record of appeal, remains undenied because at paragraph 2 of the appellant?s further counter affidavit, of 7th July, 2005 at pages 56 ? 57 of the record of appeal, denied only paragraphs 4, 5, 7 and 8 of the applicants? said further affidavit aforementioned, leaving out paragraph 6 thereof.

?It seems to me, that in view of the foregoings, the applicants/2nd set of respondents, have demonstrated that although, the claim of the appellant is not targeted at them, they have nevertheless

22

demonstrated some kind of interest prima facie, in the property in question, such that their presence in the action, as parties thereto, will enable the court to adjudicate effectually and completely on the matter of collection of rents on the said property. And that to my mind, will obviate a further litigation on the same subject matter. Therefore, I am satisfied that the learned trial judge, was not in error in granting the application for joinder of the 2nd set of respondents, to the appellant?s action.

On that premise, I resolve the sole issue in this appeal in favour of the 2nd set of respondents. In consequence therefore, the appeal is unmeritorious and it is accordingly dismissed.

The ruling of Vin Agbata, J., in re Suit NO. 0/667/2004 delivered on 11th April, 2006 is hereby affirmed.

Each side to bear own costs.

---

Other Citations: (2016)LCN/8826(CA)

Sylvanus Emeka Madubuike V. Romanus Elochukwu Madubuike (2016)

LawGlobal-Hub Lead Judgment Report

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

The appeal is against the judgment delivered on 18/6/2013 by the Federal High Court presided over by Hon. Justice Adamu Hobon (hereafter to be simply referred to as €œthe Lower Court€ and €œlearned trial Judge€ respectively) finding the Appellant guilty of €œdisobedience of court orders in judgment of 27/11/2008, enforcement order of 23/2/2009 and all the subsequent execution processes connected therewith€ and committing him to prison until he purged himself of the contempt.

The contempt proceeding which resulted in the conviction and committal to prison of the Appellant was commenced by a motion ex-parte filed by the Respondent seeking for an order for the issuance of a bench warrant for the arrest and production in court of the Appellant to show cause why he should not be committed to prison for allegedly violating the execution processes of the judgment of the Lower Court in Suit No: FHC/E/33/94. See pages 1 €“ 10 of the records for the ex-parte motion. On 23/2/2009, the Lower Court granted the orders the Respondent sought including the order for the substituted service on the Appellant by publication in the newspaper of Forms 48 and all other processes required for the enforcement of the judgment orders being sought to be enforced. (See pages 11 €“ 13 of the record). When the Appellant became aware of the application, he filed a counter affidavit to the Form 49 on 22/5/2013. (See pages 71 €“ 73 of the record). The Respondent deposed to, and filed a further affidavit to Form 49. (See pages 1 €“ 5 of the additional record). After an evaluation of the affidavit evidence and exhibits before it, and having also had the benefit of the written addresses of the parties, the Lower Court delivered its judgment in the contempt proceeding; convicted the Appellant and committed him to prison until he purges himself of the contempt.

Being dissatisfied with the judgment of the Lower Court the Appellant on 15/4/2015 lodged at the registry of the Lower Court a notice of appeal dated 15/4/2015. This was done pursuant to the order of this Court made on 14/4/2015 giving the Appellant 7 days from the said 14/4/2015 within which to file his notice of appeal. The notice of appeal contains three grounds of appeal. The grounds of appeal and their respective particulars read thus: –

€œGROUND 1

The Learned trial judge erred in law in convicting the appellant on contempt when the ingredients of contempt was not proved beyond reasonable doubt by the respondent as required by law based on the affidavit evidence before the court.

PARTICULARS:

i. The offence of contempt is criminal in nature hence every ingredient of the offence needed to be proved beyond reasonable doubt.

ii. Neither the respondent nor any other person testified in court linking the appellant with the contempt alleged.

iii. None of the exhibits attached to the application linked the appellant to the contempt.

iv. It is a travesty of justice to require the appellant to prove his innocence in a criminal proceeding when the guilt of the appellant has not been proved in any way.

GROUND 2

The learned trial judge erred in law by convicting the appellant for contempt when the allegation that the appellant broke the seal of the court, tore the orders of the court pasted on the gates of the property, broke into the property and retook possession of the said property were not proved beyond reasonable doubt as required by law.

PARTICULARS

i. It was the contention of the Respondent that the appellant broke the seal of the court, tore the orders of the court pasted on the gate of the property, broke into the property and retook possession of the said property.

ii. The respondent only alleged the appellant in carrying out the said acts but did not give any evidence in support of the said facts as the pictures showing the extent of violation of the court€™s orders were never linked to the appellant in any way.

iii. The appellant denied ever doing any of the said acts and equally contended that the said property was not even part of the property execution was levied.

iv.The respondent must as a matter of law link the appellant to the said violation of the execution orders of court but this was not done.

GROUND 3

The trial judge misdirected himself and came to a wrong conclusion thereby occasioning a miscarriage of justice when he held at page 8 of his ruling that:

€œThese denials and assertions each is carefully considered along with the plaintiff applicant€™s further affidavit on FORM 49 together with Exhibits H & J attached thereto document of SYLROMRIC ASSETS DIVISION of 10-10-1993 and the court Bailiff€™s Execution reports of 06/07/2011.

And indeed, the totality of the evidence before the court has narrowed and whittled down the defendants case on the identity of the property in question in the judgment€

PARTICULARS

i. The appellant denied the allegation that he broke the seal of court, tore the orders of the court pasted on the gates of the property, broke into the property and retook possession of same and equally asserted that the property is not even part of the properties in the judgment under execution.

ii. The respondent did not prove by any stress (sic) of evidence that it was the appellant who tore the seal of court, broke into the property and retook possession of same. In fact, no picture of the appellant doing any of the said actions was tendered in support of the allegation nor anybody who witnessed the appellant doing any of the said acts called in evidence.

iii. It was wrong for the judge to have concluded on mere suspicion that the appellant should have been responsible for the said acts merely because the appellant asserted that the property was not even one of the properties execution was lived.

iv. The said conclusion of the judge is unsupported by the evidence in court therefore it is perverse.€

Parties duly filed and exchanged briefs of argument. Appellant filed two briefs of argument. Appellant€™s brief of argument dated 23/9/2015 and filed on same date but deemed to have been properly filed and served on 22/10/2015 was settled by Perebo Pesta Monde, Esq. Appellant€™s reply brief dated 11/5/2016 was settled by Perebo Pesta Monde Esq. and Aliyu Aliyu Imam Esq. Respondent€™s brief of argument is dated 3/5/2016 and filed on same date but deemed to have been properly filed and served on 9/5/2016. It was settled by Ozonma N.C. Nobis-Elendu. The appeal was entertained on 6/6/2016 with A. Offor learned lead counsel for the Respondent first arguing the preliminary objection to the appeal raised in a Notice of Preliminary Objection dated 3/5/2016 and filed same date in the appeal.

P.P. Monde learned lead counsel for the Appellant adopted and relied on the briefs of argument of the Appellant as hereinbefore identified in urging the Court to overrule and dismiss the preliminary objection of the Respondent; allow the appeal, set aside the judgment of the Lower Court and quash the conviction of the Appellant.

A. Offor learned lead counsel for the Respondent in dwelling on the appeal on the merit, adopted and relied on the Respondent€™s brief of argument as hereinbefore identified, in urging the Court to dismiss the appeal and uphold the judgment of the Lower Court in the event Respondent€™s preliminary objection to the appeal was overruled and dismissed.

Two issues were formulated for the determination of the appeal in the Appellant€™s brief of argument. They read thus: –

€œ(1) Whether the ingredients of the contempt was proved against the appellant as required by law? (GROUND 1 AND 2)

(2) Whether the appellant (sic) denial of the disobedience of the court order and his assertion that the property in question was not part of the properties execution was levied actually narrowed and whittled down the case to only the identity of the property in question in the judgment so as to dispense with the requirement of proof of the guilt of the appellant beyond reasonable doubt as required by law. (Ground 3)€

The Respondent equally formulated two issues for the determination of the appeal in his brief of argument. The issues read thus: –

€œ1. Whether upon the Affidavit Evidence before the court, the Respondent proved the contemptuous conduct of the Appellant beyond reasonable doubt. (Grounds 1 & 2)

2. Whether the Appellant€™s bare/general denial of the affidavit evidence and his assertion that the judgment order of court of 27/11/2008 did not refer to the property described in paragraph 9 of the Plaintiff/Applicants affidavit constituted a successful defence to the case of contempt made against him€

The settled position of the law is that where there is a preliminary objection to an appeal, same must be first considered and resolved. This is against the backdrop of the purpose of a preliminary objection to an appeal (and which is to terminate the hearing of the appeal). This is because the success of a preliminary objection to an appeal will render it unnecessary to consider the appeal on the merit. See the case of SPDC NIGERIA LTD V. AMADI (2011) LPELR €“ 3204 (SC). Accordingly, I will first resolve the Respondent€™s preliminary objection to the instant appeal as it is its outcome that will determine whether or not there is need to consider the appeal on the merit.

The Notice of Preliminary Objection filed in the appeal by the Respondent was brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011; Section 6(6)(b) of the amended 1999 Constitution of the Federal Republic of Nigeria; and under the inherent jurisdiction of this Court. The notice of preliminary objection reads thus: –

€œTAKE NOTICE that the Respondent shall upon the hearing of the appeal raise a preliminary objection to the hearing of the appeal and shall urge the Honourable Court to strike out the appeal same being incompetent and for absence of jurisdiction.

AND TAKE FURTHER NOTICE that the grounds of the preliminary objection are as follows:

1. The application leading to the committal of the Appellant for disobeying the orders of the Lower Court contained in its judgment of 27/11/2008 is in the nature of a criminal proceedings or charge.
2. The appeal is an appeal against the judgment of the Lower Court delivered in the contempt proceedings and must therefore comply with the procedure laid down for commencement of criminal appeal.
3. The present appeal to set aside the conviction of the appellant by the trial court in a contempt proceeding and to acquit the Appellant is in the nature of a criminal appeal and the rules relating to criminal appeals must be strictly applied.
4. Under the rules of this Honourable court, every notice of appeal given in a criminal case shall be signed by the appellant himself.
5. The Appellant (sic) notice of Appeal given in the quasi-criminal proceedings for contempt was not signed by the Appellant personally.
6. The Appellants (sic) notice of appeal being in the nature of a criminal appeal ought to be signed by the Appellant himself.
7. The Appellant never raised the issue of doubt as to the identity of the person who committed the contemptuous act at the court below. The Appellant is only raising the said issue of identity of the contemnor for the first time on this appeal without leave.
8. The Appellant needs the leave of court to raise such fresh issue for the first time on appeal.
9. The parties in this appeal were not parties to the suit from which the Appeal arose.
10. The notice of appeal is incompetent for the failure of the Appellant to personally sign same.
11. The Appellant had argued in paragraphs 4.23 and 4.30 of his argument that the judgment of the Lower Court was not properly executed and urged the Honourable Court to set same aside. The above argument is not based on any of the issues raised by the Appellant in this appeal. The said argument is also not based on any of the grounds of Appeal.
12. The court lacks the jurisdiction to entertain the appeal.€

Learned lead counsel for the Respondent in arguing the preliminary objection (hereafter to be simply referred to as €œP.O.€) adopted and relied on the arguments at paragraph 3.01 €“ 3.15 on pages 5 €“ 9 of the Respondent€™s brief of argument in urging the Court to uphold the P.O. and strike out the appeal.

Having regard to the P.O. of the Respondent that has been re-produced hereinbefore, it is in my considered view clear that the said P.O. to the instant appeal which this Court is said to lack the jurisdiction to entertain by ground 12 of the grounds of the P.O., is in four parts. The first part questions the validity of the notice of appeal lodged against the judgment of the Lower Court. (See in this regard grounds 1 €“ 6 and 10 of the grounds of the P.O.). The second part questions the propriety of the issue of doubt as to the identity of the person who committed the contemptuous act raised in the instant appeal as the said issue, is being raised for the first time without procuring the leave of this Court to do so. (See in this regard, grounds 7 and 8 of the grounds of the P.O.). The third part questions the propriety of the parties contained in the notice of appeal. (See in this regard, ground 9 of the grounds of the P.O.). The fourth part questions the propriety of the argument in relation to the improper execution of the judgment of the Lower Court contained at paragraphs 4.23 €“ 4.30 of the Appellant€™s brief of argument as same is not based on either of the issues formulated by the Appellant for the determination of the appeal nor on any of the grounds of appeal. (See ground 11 of the grounds of the P.O.).

The position of the law regarding what qualifies to be raised as preliminary objection to an appeal has been settled for some time now. It is to the effect that any grouse a respondent has in relation to an appeal and which will not terminate the hearing of the appeal if resolved in the respondent€™s favour, does not qualify to be brought by way of preliminary objection. In this regard see the case of SPDC NIGERIA LTD V. AMADI (supra) where Rhodes-Vivour, JSC; in dwelling on preliminary objection in the lead judgment of the Court said on page 23 thus: –

€œPreliminary objections are filed against the hearing of an appeal and so once it succeeds the appeal no longer exists. All too often we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of Appeal should be filed. In this case a Preliminary objection was properly filed, because if it succeeds the appeal comes to an end. See: NEPA v. Ango 2001 15 NWLR pt 737 p 627€

See also the case of ABBA V. SPDC NIGERIA LTD (2013) LPELR €“ 20338(SC).

Against the backdrop of the position of law as stated above, it becomes obvious that the second and fourth parts of the P.O. of the Respondent being such that cannot terminate the hearing of the appeal even if they are resolved in the Respondent€™s favour are not suited to have been placed before the Court by way of P.O. and I will for this reason not dwell on them in the resolution of the P.O. before the Court. In other words, it is only the first part or aspect of the P.O. that I will concern myself with as I am discountenancing the second and fourth parts or aspects of the P.O. for the purpose of resolving same.

I also consider it appropriate to mention that ground 9 of the grounds of the P.O. which reads that €œthe parties contained in the Notice of Appeal are not the same with the parties contained in the judgment of the Lower Court appealed against€ requires no elaborate examination. This is because I consider the said ground to be manifestly or obviously absurd and unintelligible having regard to the position of law in elucidation of the rules of court governing appeals. It is to the effect that an appeal basically can only be at the instance of a person that is aggrieved with a decision and that only persons who will directly be affected with the decision appealed against need be made respondents in the appeal. It is the Appellant alone that the Respondent proceeded against for contempt of court in the processes by which the proceeding was commenced even though there were other parties set out in the processes in question as respondents in addition to the Appellant. The judgment and orders made by the Lower Court in the contempt proceeding were never extended to any of the other parties that featured in the contempt proceeding. In the circumstance, it is in my considered view simply incongruous and definitely not commonsensical or rational that all the respondents set out in the judgment of the Lower Court should feature in the notice of appeal in the instant appeal if they have no grouse with the judgment appealed against by the Appellant and inasmuch as the Appellant does not think that they will be directly affected by the outcome of the appeal. Perhaps it is the desire of the Respondent on record that the persons not set out in the notice of appeal needed to be joined as respondents in the appeal so that they can support the judgment of the Lower Court that has gone against one of their own. How this can advance the cause of the Respondent beats me hollow as the other respondents in the contempt proceeding even if joined in the appeal as respondents are not under any duty to participate in the appeal knowing that nothing the Lower Court did has any effect on their persons or interest. I suspect that it is in the knowledge of the position stated above, that learned lead counsel for the Respondent never canvassed argument in respect of ground 9 of the grounds of the P.O. in the brief of argument of the Respondent. I am however of the considered view that he should have had the forthrightness to have expressly abandoned the ground of the P.O. in question at the point of arguing the P.O. That is what decorum dictates.

The submission of learned lead counsel in respect of the notice of appeal by which the instant appeal was initiated in the main is that the said notice ought to have been signed by the Appellant himself. That as this was not done in the instant appeal which is in respect of contempt proceeding (which was in the nature of a criminal matter), the said notice of appeal which was signed by learned lead counsel for the Appellant, violates the provisions of Order 17 Rule 4(1) of the Court of Appeal Rules, 2011. The cases of Orji v. FRN (2007) 13 (sic) NWLR (Pt. 1050) 55; and Onu v. State (2013) All FWLR (Pt. 683) 2019 amongst others were cited in aid. It is the stance of learned lead counsel that as the Appellant was convicted for contempt of court and was committed to prison, he ought to have signed the notice of appeal against his conviction himself and not through his counsel. That failure of the Appellant to sign and endorse the notice of appeal in this matter therefore renders the appeal incompetent and liable to be struck out.

In responding to the argument of the Respondent concerning the notice of appeal, learned lead counsel for the Appellant in the main submitted that the said notice is valid as it was competently signed by him. This according to learned lead counsel amongst others, is because the stance of the Respondent is grossly misconceived and a clear misapprehension of the law as it relates to an appeal on contempt from a civil proceeding. Learned lead counsel submitted to the effect that contempt of court is neither civil nor criminal but sui generis and cannot be smuggled into any of either proceedings through the back door and cited in aid the case of Nzidee v. Kootu (2007) 1 NWLR (Pt. 1014) 99 (CA). That though contempt proceedings are usually categorized as either civil or criminal (be it in-facie curia or ex-facie curia) such categorisation is only useful for the purpose of determining the appropriate procedure the trial court must follow in the trial of the contemnor. It is the stance of learned lead counsel that the nature of the contempt in the instant case is civil contempt borne out of a civil case, hence the applicable procedure for appeal, is as contained in Order 6 of the Court of Appeal Rules, 2011 which relates to Civil Appeals and matters relating thereto. He further cited the case of Chrisdon Industrial Co. Ltd. v. A.I.B. Ltd (2002) 8 NWLR (Pt. 768) 152, in aid of his stance that the notice of appeal was properly signed by him (i.e. learned lead counsel) in view of the function a notice of appeal is to serve. Also submitting that the cases cited by learned lead counsel for the Respondent are not applicable as they dwell with criminal cases, the Court was urged to hold that the notice of appeal is competent and that this Court has the jurisdiction to entertain this appeal.

The judgment in the contempt proceeding that has resulted in the instant appeal was delivered by the Lower Court on 18/6/2013. The facts and events leading to the contempt proceeding as captured in the judgment of the Lower Court on pages 136 €“ 137 of the record read thus: –

€œ By issuance of Form 49 notice to the 1st Defendant Contemnor €“ Respondent, the Plaintiff Applicant applied for:

An order for committal of the contemnor to prison for having disobeyed the Judgment Order of this Court made in this suit on 27th November, 2008 in favour of the Plaintiff-Applicant.

1st Defendant-Contemnor ordered to appear and show cause why an order for his committal shall not be made. The Notice was dated and filed 22-07-2011, issued on 24-10-2011 by the Court Registrar. It is supported by a 20 paragraph affidavit of 24-10-2011, attached thereto: Exhibits A €“ F namely:

1. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
2. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
3. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
4. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

The said judgment of 27-11-2008 was endorsed with form 48 and served on the Contemnor €“ Respondent as per Exhibit €œC€ & €œC1€, contemnor is aware of the Judgment.

On 01-06-2011 the court ordered or directed police to provide security for execution of the judgment as per Exhibit €œD€.

On 6-07-2011 Execution of Judgment took place and possession of property obtained in favour of Plaintiff-Applicant.

On 11-07-2011 the contemnor unlawfully broke the seal of the court, tore the orders of the court pasted on the gates of the property, and re-took possession of the said property as if the Judgment of Court and execution were of no effect. Contemnor also locked up the warehouses on the ground floor and main gates to the aforesaid property thereby denying the Plaintiff-Applicant access to the warehouses and his own part of the property as evidenced by €œExhibit F€. The contemnor-respondent violated the entire execution process carried out by officers of court as shown by exhibit €œG€ unless the contemnor-respondent is committed to prison, he will continue to disobey the Judgment of this Court. €¦€¦€¦€¦€¦€¦€

It is in my considered view pertinent to note that at all material time prior to the commencement of the contempt proceeding entertained by the Lower Court, the Criminal Code Act, Laws of the Federation of Nigeria, 1990 in Section 6 and Criminal Code which is a Schedule to the Act, in Section 133, both contain provisions which deal with €œContempt of court€. Indeed, the provisions relating to contempt of court remain the same in the Criminal Code Act, 2014 in Section 6 and the Criminal Code which is a Schedule to the Criminal Code Act 2014 in Section 133. The provisions in question read thus: –

€œSection 6

Nothing in this Act or in the Code shall affect the authority of courts of record to punish a person summarily for the offence of contempt of court; but so that a person shall cannot be so punished and also punished under the provisions of the Code for the same act or omission.

Section 133

€œAny person who €“

(1)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(2)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(3)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(4)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(5)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(6)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(7)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(8) Re-takes possession of land from any person who has recently obtained possession by a writ of court; or

(9)Commits any other act of intentional disrespect to any judicial proceeding, or to any person before whom such proceeding is being had or taken,

is guilty of a simple offence and liable to imprisonment for three month.€

It is clear from an enactment such as the Criminal Code Act that there are categories of contempt of court and that there is a category that constitutes criminal offence in law. There is also no dearth of decisions of the Supreme Court and this Court regarding the nature of contempt of court and procedure to be adopted in pursuing each type. In this regard, I will refer to two cases only, and will re-produced portions of the second case extensively as the first of the cases was copiously referred to in the second case. The first of the two cases is AWOSANYA V. BOARD OF CUSTOMS & EXCISE (1975) LPELR €“ 657 (SC). The second of the two cases is that of OMOIJAHE V. UMORU (1999) LPELR €“ 2645 (SC) where the Supreme Court per Katsina-Alu, JSC; (as he then was) on pages 10 €“ 13 said thus: –

€œIn the present case, it is not in dispute that the allegations against the appellants are criminal in nature. The alleged contempt was ex facie curiae. Therefore, what is in dispute herein is the mode of trial for such a contempt of court. There are two types of contempt – that committed in facie curiae and that committed ex facie curiae. In the case of the second type, a charge and a plea are necessary and the accused is entitled to a fair hearing of the case against him. In both types of contempt, a trial is involved. See Awosanya v. Board of Customs & Excise (1975) 3 SC. 47. What separates one from the other is the procedure to be adopted. For words or actions used in the face of the court, or in the course of proceedings, to be contempt, they must be such as would interfere with the course of justice. A superior court of record has the inherent jurisdiction to deal with contempt in facie curiae and punish for the offence summarily. It must once again be emphasised that the summary power of punishing for contempt should, however, be used sparingly and only in serious cases. See Parashuram Detaram Shamdasani v. King-Emperor (1945) AC 264 at 270; Arake v. Attorney-General (1982) 1 S.C. 153: Oku v. State (1970) 1 NLR 60. It is a power which a court must of necessity possesses, Its usefulness, surely, depends on the wisdom and restraint with which it is exercised. In cases of contempt ex facie curiae there may be cases where the offence should be dealt with summarily, but such hearing must be conducted in accordance with cardinal principles of fair process, and the case must be one the facts surrounding the alleged contempt are so notorious as to be virtually incontestable. Where the judge would have to rely on evidence or testimony of witnesses to events occurring outside his view and outside of his presence in court, he should not try the case himself. The matter must be placed before another judge where the usual procedure for the arrest, charge and prosecution of the offender must be followed. In Oku v. The State (supra) this court per Coker JSC held at page 68 that:

“Where the contempt of court is punishable brevi manu in court no warrant is necessary for the apprehension of the offender as he is always in court and the contempt is stated to have been committed coram judice. In other cases the proper procedure of apprehension or arrest, charge, prosecution, etc., must be followed …€ (Italics for emphasis).

In other words, in the trial of criminal contempt ex facie curiae, an offender is entitled to the benefit of a full process of a criminal trial. The reason for this is obvious. Firstly, this is to ensure that the accused receives a fair hearing of the case against him. In the second place, the judge no doubt would have to rely on evidence or testimony of witnesses to events which did not occur in his presence. In Boyo v. Attorney-General of Mid- West (1971) 1 All NLR this court observed at page 353 of the Report thus:

€œThese observations, to which we have referred, to our mind, apply both in cases of contempt in the face of the court. Although in the first case, generally, the contempt cannot be dealt with efficiently except immediately and by the very judicial officer in whose presence the offence was committed. In cases of contempt not in the face of the court, there may be cases where the offence should be dealt with summarily, but such hearing must be conducted in accordance with cardinal principles of fair process; and the case must be one in which the facts surrounding the alleged contempt are so notorious as to be virtually incontestable. Where the judge would have to rely on evidence or testimony of witnesses to events occurring outside his view and outside of his presence in court it cannot be said that the contempt is in the face of the court. In such cases, a judge should not try a contempt in which he is involved.”

It is to be realised that in both types of contempt, some form of trial is conducted. In that sense it is correct to say that the court can make an order of committal in the situations specified by Order 42 Rule 1 of the High Court (Civil Procedure) Rules 1998 of the former Bendel State. Such an order of committal must be made after due hearing of the case against the accused. This can be summary in cases of contempt committed in the face of the court or through a trial only after framing of a charge and taking of a plea in cases of contempt not committed in the face of the court. Each type of contempt has its own procedure. Each type must be kept within its compartment. In the instant case, it is not in dispute that the contempt in question was not committed in the face of the court. It was committed ex facie curiae. This does not attract summary trial. Here the offender is entitled to the benefit of a full process of a criminal trial. It cannot be contested that the judge would need evidence or testimony from prosecution witnesses and also from the accused and his witnesses in order to come to a just decision. There is clearly in my view no jurisdiction in the learned trial judge to exercise her summary jurisdiction in this case. The contempt was not committed in her presence. €¦€¦..€

It is my considered view that learned lead counsel for the Respondent in his stance that the notice of appeal in the instant appeal ought to have been signed by the Appellant himself, conveniently failed to appreciate that the contempt proceeding in which the Lower Court convicted the Appellant was never one of criminal contempt (and if I may say, it should have been, given the fact that whatever contempt the Appellant allegedly committed was not committed in the face of the Lower Court). It was a contempt proceeding that was taken out in a civil matter in respect of which the said Lower Court had given judgment. The application of the principle of €œproof beyond reasonable doubt€ to the proceeding was only in keeping with the evidential burden of proof required in any civil proceeding where an allegation of the commission of a crime has been made. See Section 135 of the Evidence Act, 2011. The burden of proof to be discharged in establishing a fact or allegation is not what determines the nature of the proceeding in question, but the form of commencement of the proceeding in which the allegation has been made. In my considered view, it is for this reason that an action commenced under the civil procedure rules of a court remains a civil matter despite series of allegations of crime that might be made therein and which allegations must be proved beyond reasonable doubt, by the party that makes same in the said proceeding. It is therefore my considered view that before it can be successfully argued as has been done by learned lead counsel for the Respondent that the contempt proceeding before the Lower Court was such that required the Appellant to sign the notice of appeal by himself, then the fulfilment of all the incidences of a criminal trial as envisaged under Section 215 of the Criminal Procedure Act must be shown to have been complied with in the matter in question. This is not the position in the instant case having regard to the record. In the light of all that has been said, I have no hesitation whatsoever, in holding that the notice of appeal lodged by the Appellant was properly signed by his counsel as the contempt for which he was convicted did not arise from any criminal proceeding properly instituted before the Lower Court. In conclusion I find the notice of appeal to be competent and also hold that this Court has the jurisdiction to entertain the instant appeal. I will now proceed to consider the appeal on the merit and in doing this, I will resolve the appeal on the issues formulated for its determination by the parties under the broad issue as to whether the Lower Court was right in finding the Appellant guilty of contempt and punishing him therefor having regard to the totality of the evidence before it. In doing this, I will however still review the submissions as presented under the issues formulated by the parties in their respective briefs of argument. This is more so as both issues as formulated by the parties are from the same grounds of appeal. This is to say that both Appellant€™s issue 1 and Respondent€™s issue 1 having been distilled from grounds 1 and 2 of the grounds of appeal will be considered together; while the same attitude will also be accorded their respective issue 2 as they have been distilled from ground 3 of the grounds of appeal.

APPELLANT€™S ISSUE 1:

The position of learned counsel for the Appellant under this issue in the main is that the ingredients of contempt of court, were not proved as required to be proved in a quasi-criminal proceeding that contempt proceeding is, and which is that of proof beyond reasonable doubt, before a conviction can be grounded on it. That it was not proved that the Appellant is the one who actually committed the said contempt deliberately and with guilty mind and the case of Orija v. Akogun (2009) 10 NWLR (Pt. 1150) 439 at 453 wherein this Court set out the ingredients of contempt was cited in aid. It is the stance of learned lead counsel that the totality of the affidavit evidence placed before the Lower Court by the Respondent did not establish the Appellant to be the one who committed the contemptuous acts. That this is particularly so, as the Appellant in his counter affidavit denied the depositions suggesting this in the Respondent€™s affidavit. He further submitted that the denials in the counter affidavit made the identity of the person who committed the alleged acts, to be an issue but this was never proved in any way. That even a scrutiny of the execution report of the bailiff, one Araromi Ademola on pages 91-96 of the record and also on pages 13-14 of the additional records compiled by the Respondent, reveal that there were occupants/tenants in the house in respect of which execution was levied and there was nowhere in the report that these lawful occupant/tenants were evicted. That they were left alone by the bailiff in/on the properties as the bailiff only €œtold them of the order of the court and pasted the court injunction document on the entrance wall of the fence of the house with red paint. Learned lead counsel also said that the report did not state that the Appellant was present at the time the purported execution was carried out and that the Appellant did anything at all. That it was possible for the people living in the houses and who were left in the houses to have removed the court seals and/or opened the gate to the property where the seal was pasted as there was no alternate gate left for their ingress and exit from the premises. Learned lead counsel submitted that the identity of the person who disobeyed the court order by breaking the seal of the court, tearing the order of the Lower Court pasted on the gates of the property, breaking into the property and retaking possession of the said property was never proved beyond reasonable doubt as required before the Lower Court and it was wrong for the court to have convicted the Appellant on mere speculation that he would have been the person that carried out the allegedly contemptuous acts without more. That this fell short of the standard required to prove contempt cases. That the evidence before the Lower Court fell short of the standard of proof required under the law to ground the conviction of the Appellant hence the Lower Court was wrong to have convicted him on mere suspicion as the said court failed, refused and neglected to make an inquiry into the identity of the person who violated its order that was pasted on the wall. It is the stance of learned lead counsel that an eye witness needed to testify or to have depose to an affidavit on what he/she saw and when the Appellant did what he was alleged to have been done. That it is only then the Appellant could be called upon to defend/or give an explanation on why he did it.

The Court was urged to hold that the ingredients of contempt particularly the fact that it is the Appellant that committed the contempt with a guilty mind was not proved beyond reasonable doubt and thereby resolve the issue in the Appellant€™s favour and set aside the conviction of the Appellant and discharge him accordingly.

Dwelling on Respondent€™s issue 1, learned lead counsel for the Respondent in the main submitted that the Respondent fulfilled all the conditions necessary and indeed proved all the ingredients of the offence of contempt against the Appellant beyond reasonable doubt as required by the law. Copious references were made to evidence before the Lower Court in this regard and the case of Abass v. Solomon (2001) FWLR (PT 67) 847 was cited in aid. It is his stance that the Respondent not only proved that the judgment and order of the Lower Court were endorsed with Form 48 and served on the Appellant (hence the Appellant was aware of the judgment orders and had knowledge of existence of the said order made against him) but also proved that execution was levied accordingly on the property on 6/07/2011 and that orders of the Lower Court were pasted on the wall fence and gate of the property. That the Respondent equally furnished evidence to the effect that the Appellant on 11/07/2001 (sic), broke the seal of the court, tore the orders of the Lower Court pasted on the gate of the property, broke into the Appellants (sic: Respondent€™s) share of the property to which the judgment of the Lower Court relates. It is the stance of learned lead counsel that the affidavit and documentary evidence placed by the Respondent before the Lower Court, proved the allegation of disobedience of the judgment and orders of the Lower Court on 27/11/2008 against the Appellant beyond reasonable doubt. He said further that the catch-phrase €˜proof beyond reasonable doubt€™ often used in our criminal and evidence laws, is not a magical terminology compelling the prosecution or one who alleges crime in a matter to accomplish the task of a leviathan or to do the impossible. That all the law requires is that the prosecution or the Respondent, in the instant appeal and as an applicant in a case of civil contempt, should sufficiently prove the essential ingredients of the offence and this is what the Respondent has done in this matter and the case of Ekenam v. The State (2010) All FWLR (Pt. 539) 1142 at was cited in aid. It is also the stance of learned lead counsel for the Respondent that the purport of the entire argument at paragraphs 4.05 €“ 4.12 of the Appellant€™s brief that the allegation of contempt against him were denied in paragraph 9 of his counter affidavit and that the said denial puts the identity of the person who committed the alleged contemptuous act in issue, and was not proved to be him by Respondent, is misplaced. This is because, the Appellant given the general denial of the allegation of contempt contained in paragraph 9 of his counter affidavit, never raised any doubt as to the identity of the person who committed the contemptuous act in the Lower Court. That Appellant is only raising the issue relating to the identity of the contemnor for the first time in this appeal. Learned lead counsel submitted that the fresh point of doubt as to identity, as now raised by the Appellant and which was not canvassed by the Appellant in the course of his trial at the Lower Court cannot be so raised in this appeal except with the leave of this court and the cases of Ohuchukwu v. A-G, Rivers State (2012) All FWLR (Pt. 626) at 413 €“ 415; and SPDC v. Tiebo VII (2005) 9 NWLR (Pt. 931) 439 were cited in aid. In the premises, the Court was urged to discountenance all the arguments relating to the fresh issue of identity as canvassed in paragraphs 4.05 €“ 4.12 of the Appellant€™s brief. Alternatively, it is the position of learned lead counsel for Respondent on this issue, that there is no deposition whatsoever in the counter affidavit by which the Appellant actually and materially denied committing the contemptuous acts alleged in paragraphs 10, 11 and 12 of the affidavit in support of Form 49 for the committal of the Appellant. The case of N.N.P.C v. Famfa Oil Ltd (2012) All FWLR (Pt. 635) 204 at 233 €“ 234 was cited in aid. It is the stance of learned lead counsel that paragraph 9 of the Appellant€™s counter affidavit is a feeble and shallow €œaverment€ in attempted denial of specific and material facts contained in the affidavit in support of the application for committal of the Appellant and therefore has no probative value. That it is worthy to note that the Appellant did not even deny any of the allegations of fact contained in paragraphs 7 €“ 13, 16 €“ 19 and 21 of the further affidavit in support of the application for the committal of the Appellant. Learned lead counsel submitted that for Appellant to effectually controvert the evidence in paragraphs 10 €“ 12 of the affidavit of the Respondent, he needed to have presented cogent and credible evidence to discredit the evidence of the Respondent but this was not done by the Appellant in any of the paragraphs of his counter affidavit and the case of Sanni-Omotosho v. Obidairo (2014) All FWLR (Pt. 745) at 216 was cited in aid.

Dwelling on the argument contained in paragraph 4.08 of the Appellant€™s brief of argument regarding the fact that the execution report did not show that the Appellant was present on the day of execution and did not state that the Appellant did anything at all on the execution day, learned lead counsel for the Respondent submitted that the essence of the execution report, was to show and or prove the identity of the property that is the subject matter of the judgment and order of 27/11/2008, in relation to which the contempt was committed. That it was not in relation to the identity of the contemnor, as the contemnor€™s identity was never in doubt, and was never an issue at the Lower Court. That the execution report, has nothing to do with the presence or identity of the Appellant. Besides, that it is very clear from the affidavit and further affidavit evidence of the Respondent that while the execution was levied on the 6/07/11, the Appellant committed the contemptuous acts on 11/07/11. It is also the stance of learned lead counsel, that the argument in paragraph 4.08 of the Appellant€™s brief that tenants were left in the building and could possibly have committed the contemptuous act is lame speculation, idle hypothesis and therefore, academic. That such argument does not avail the Appellant in this appeal being purely speculative. The Court was enjoined to discountenance same in line with the established principle of law and the case of Alameyessigha v. FRN (2006) 16 NWLR (Pt. 1004) at 40 was cited in aid. In conclusion, learned lead counsel urged the Court to resolve issue 1 in favour of the Respondent and hold that the Respondent sufficiently proved the contemptuous conduct of the Appellant beyond reasonable doubt.

The Appellant in his reply brief as expected responded to some of the arguments of learned lead counsel for the Respondent as reviewed above. I will refer to those I consider relevant in the course of resolving the broad issue I have formulated for the resolution of the appeal.

APPELLANT€™S ISSUE 2:

In dwelling on this issue, learned lead counsel for the Appellant having adopted the arguments proffered under issue 1 further submitted that the Appellant€™s denial of disobedience of the court order and his assertion that the property in question was not even part of the properties on which execution was levied, did not actually narrow and whittle down the Appellant€™s case to the identity of the property in question as erroneously held by the Lower Court. It is his stance that an accused person in any criminal trial can rely on various defences and the court is bound to consider all the defences open to the accused/defendant. The case of Uwahekweghimya v. State (2005) 9 NWLR (Pt. 990) 227 amongst others was cited in aid. He said that the Appellant clearly raised two defences before the Lower Court to wit: (1) that the property in question is not one of the properties on which execution was allegedly levied, and (2) that he did not commit the alleged contemptuous acts. He submitted that while the Lower Court dealt with and considered the first of the defences of the Appellant in its judgment, it however failed to consider the second defence that he was not the person that committed the alleged act. Having made further submissions anchored on the bailiff€™s execution report, learned lead counsel also submitted that the failure of the Lower Court to consider the second of the defences of the Appellant has occasioned a miscarriage of justice and has caused the irreparable damage of depriving the Appellant of his liberty when it was not proved by any stretch of evidence that it was the Appellant that committed the alleged contemptuous act. Learned lead counsel again argued to the effect that the way and manner the purported execution was levied on the said property in question, casts doubt on the execution. This is because, the occupants of the property were all left in the property with the gate being sealed without evacuating the occupants who by circumstances of nature have freedom of movement given their right of ingress and exit on the property. Learned lead counsel submitted that since the Lower Court only used the affidavit evidence which it did not properly evaluate, to convict the Appellant; this Court is in good position as the Lower Court to evaluate the documentary (affidavit) evidence before the said court and draw its own conclusions and the case of Dikibo v. Ibuluya (2006) 16 NWLR (Pt. 1006) 563 at 575 was cited in aid. It was also submitted by learned lead counsel that where a defendant in a cause challenges the validity of an order directed against him either by way of an appeal or other applications, he cannot be proceeded against for contempt of that order unless and until the issue of its legality is settled one way or the other and the case of Group Damone v. Voltic (Nig) Ltd (2008) 7 NWLR (Pt. 1087) 637 at 660 was cited in aid. It is his position that it was while the Appellant and others have appealed against the judgment of the trial court in Appeal No: CA/AE/52/2010 and while the appeal was still pending, that the Respondent applied to the Lower Court for leave to enforce the judgment and orders of the said court and served same through substituted means on the Appellant and eventually got him convicted for contempt despite the pending appeal and which appeal is still pending before this Court. The Court was urged to allow the appeal, set aside the conviction of the Appellant and acquit the Appellant of contempt and dismiss the contempt application.

Dwelling on Respondent€™s issue 2, learned lead counsel for the said party engaged in what can be better described as a rehash of the submissions he had earlier made concerning what he perceived as the inappropriateness of the denial by the Appellant of the allegation of contempt contained in the affidavit of the Respondent, by paragraph 9 of the counter affidavit. Alternatively, it is the stance of learned lead counsel that the Appellant in any case never fared well in establishing the defence he raised in paragraph 9 of the said counter affidavit. He said to the effect that the Lower Court carefully considered the defences raised by the Appellant but that the bare denial that he never committed the contemptuous act and/or that the property in relation to which the act of contempt was committed is not covered by the judgment of 27/11/2008, did not avail the Appellant or is rather too weak to absolve him from guilt following the strength of the formidable case of contempt made against him. This Court was urged not to disturb the judgment of the Lower Court.

Dwelling on the argument of the Appellant as contained in paragraphs 4.23 and 4.30 of his brief of argument, to the effect that the judgment of the Lower Court was not properly executed and that this Court should set same aside, learned lead counsel for the Respondent submitted that the arguments at the said paragraphs are not based on any of the issues raised by the Appellant in this appeal. That the said arguments, are also not based on any of the grounds of appeal. That the Appellant never complained against the execution of the judgment and order of the Lower Court of 27/11/08, rather the appeal is only against the committal of the Appellant in the judgment of the Lower Court delivered on 18/05/2013 (sic). That the Appellant therefore cannot be allowed at this stage to canvass arguments not based on any of the grounds or issue distilled from the grounds of appeal. In the premises, this Court was urged to discountenance the said arguments.

The stance of learned lead counsel for the Respondent in respect of the arguments at paragraphs 4.31 €“ 4.33 of the Appellant€™s brief of argument to the effect that €œthe conviction of the Appellant by the trial court is perverse, unsupported by evidence and constitutes a miscarriage of Justice€ because the committal proceedings were taken against the Appellant during the pendency of an alleged Appeal No. CA/AE/52/10 against the judgment he is alleged to have disobeyed, is that the arguments in this regard are not supported by any of the grounds of this appeal. That the arguments are also not in consonance with any of the issues raised in the instant appeal. That in any case, the Appellant never raised the issue of invalidity of the order of the Lower Court of 27/11/08 in his counter affidavit and throughout the hearing of the application for his committal at the Lower Court. He submitted that the Appellant cannot be allowed at this stage to canvass argument on the validity or otherwise of the said judgment as the said argument is not based on any of the grounds or issues distilled from the grounds of the appeal. This is more so as no leave of this Court was obtained to so argue the issue. The Court was urged to discountenance the arguments in paragraphs 4.31 €“ 4.33 of the Appellant€™s brief on the above score. The Court was urged to resolve issue No. 2 in favour of the Respondent and uphold the decision and judgment of the Lower Court and dismiss the appeal.

The Appellant in his reply brief as expected responded to some of the arguments of learned lead counsel for the Respondent as reviewed above. I will refer to those I consider relevant in the course of resolving the broad issue I have formulated for the resolution of the appeal.

I cannot but observe that learned lead counsel for the Respondent consistently disclosed in the Respondent€™s brief of argument that he understood the contempt proceeding entertained by the Lower Court as being in the realm of civil proceeding. This much is clear from the submissions in paragraphs 5.04 €“ 5.06 and 5.12 of the said brief. In paragraph 5.06 it is stated thus: –

€œThe above ingredients of offence of civil contempt was (sic) proved beyond reasonable doubt against the Appellant in paragraphs €¦€¦€¦€¦€¦€¦€¦€¦€¦€

And in paragraph 5.12 it is also stated thus: –

€œIt hardly needs to be pointed out that the catch-phrase €˜proof beyond reasonable doubt€™ often used in our criminal and evidence law is not a magical terminology compelling the prosecution or one who alleges a crime in a matter to accomplish the task of a leviathan or do the impossible task. All the law requires is that the prosecution or the Respondent, as in the instant case, as an Applicant in a case of civil contempt, should sufficiently prove the essential ingredients of the offence and this is what the Respondent has done in this matter. €¦€¦€¦€¦€¦€¦€¦€¦€¦€¦€¦€¦€

It is my considered view that the position of learned lead counsel as stated above, really puts in doubt the vires or propriety of the P.O. that the notice of appeal in the instant appeal ought to have been signed by the Appellant personally. This is because I find it absurd how learned lead counsel for the Respondent could reasonably have expected what he recognised to be a case of civil contempt to have been translated or converted to a criminal proceeding simply because of the burden of proof the Respondent needed to have discharged to procure the reliefs he sought. Indeed, it is also my considered view, that learned lead counsel in a show of his supposed prowess in law, ought not to have pursued the P.O. relating to the non-signing of the notice of appeal in the instant appeal by the Appellant personally, against the backdrop of the stance that the contempt proceeding before the Lower Court was one of civil contempt taken out in a civil proceeding. Be that as it may.

Though conceding that the burden of proof on the Respondent in the contempt proceeding was to establish the ingredients of the offence of contempt beyond reasonable doubt, learned lead counsel for the Respondent in opposition to the stance of learned lead counsel for the Appellant that the identity of the Appellant as the person who committed the contemptuous act as alleged before the Lower Court, was not proved as it ought to have been done, forcefully submitted that the issue of the Appellant not being the person who actually committed the contemptuous acts was never before the Lower Court. That as the issue was being raised for the first time in this appeal, it was a fresh one in respect of which leave ought to have been first sought and obtained before it could be argued.

It is to be noted that it is clear as crystal from the record of appeal that the Appellant never pretended that he filed the instant appeal as of right and/or within the time prescribed by law for him to do so. He first sought for the indulgence of this Court to file the same by seeking for the prayers he considered to be relevant and the motion in this respect with a proposed notice of appeal duly exhibited thereto, was served on the Respondent. The Respondent was at the hearing of the motion represented by learned lead counsel who argued the instant appeal and he never opposed the motion. (See pages 145 €“ 146 of the record). The motion which learned lead counsel for the Respondent never opposed, had exhibited to it the notice of appeal that was filed by the Appellant and the grounds and particulars of which I have re-produced hereinbefore. It is puzzling how learned lead counsel for the Respondent who could have opposed the inclusion of the ground which he now claims relates to matter that was not in issue before the Lower Court, in the notice of appeal (and have the pronouncement of the Court on the matter at that stage) but failed to do so, can turn around at the hearing of the appeal to oppose the said ground as it were. I do not think an application seeking for the indulgence of the Court for anything that needs to be regularised should be treated with levity at the point in time it is being heard and only for the party who has done so to later in the proceeding take a stance contrary to the one he had earlier taken. In any event, learned lead counsel for the Respondent would appear to have lost sight of the position of law that when there is an allegation of the commission of a criminal offence against any person whether by way of a formal charge or by way of an averment in pleading, the identity of the person that is alleged to have committed the offence in question is always in issue, particularly when the person alleged to have committed the offence does not admit committing same. Hence, the requirement of the law that the allegation of the commission of an offence by a person must be proved against such person beyond reasonable doubt and the burden of proof in this regard does not shift. It always remains on the party that has alleged the commission of the crime in issue or in question. In the instant matter on appeal, it is obvious that the Appellant never confessed or admitted in any manner whatsoever that he committed any contemptuous act. And I do not see how else the Appellant could have been expected to disclose his denial, given the nature of the processes upon which the Lower Court investigated the matter before it, except by deposing that he did not do what he was alleged to have done. In other words, it is my considered view that even if learned lead counsel for the Respondent having not opposed any aspect of the notice of appeal at the stage of its regularisation, can now turn round to oppose the inclusion in the grounds of appeal, of the ground raising doubt as to the identity of the Appellant, the Appellant has in my considered view sufficiently raised the said issue in his counter affidavit by denying that he committed any contemptuous act as alleged by the Respondent.

Both learned lead counsel for the Appellant and Respondent are agreed as to the ingredients of the offence of contempt that must be established by the Respondent given the contemptuous acts the Appellant is alleged to have committed. They are also agreed that the ingredients of the offence by law, must be established beyond reasonable doubt.

The judgment of the Lower Court spans pages 136 €“ 144 of the record. Page 136 to the third paragraph of page 141 were devoted to the introduction of the case and review of the respective cases of the parties. The fourth paragraph of page 141 to the first paragraph of page 142 were devoted to restating settled position of law regarding failure to comply with an order of court. Having restated the allegations of the Respondent and having also observed that the Appellant made a general denial and that the property in question was not covered by the judgment of the court of 27/11/2008, and again restating the position of the law regarding documentary evidence, and also setting out the ingredients of the offence of disobedience to court order or for committal proceedings, the Lower Court went further to state thus on pages 143 €“ 144 of the record: –

€œIn the instant case, the 1st defendant is not raising any of these defences open at law to him but rather that the property upon which he was alleged to have committed the contemptuous acts was not covered or subject of the court judgment and orders of execution. In other words the 1st defendant is justifying his contemptuous acts on the identity of the subject matter which the totality of evidence before the court proved him wrong and negatived any of his defences if any.

The totality of evidence before the court lead to only one conclusion and that is the Plaintiff-Applicant has proved the contemptuous conduct against the 1st Defendant-Contemnor beyond reasonable doubt and the contemnor failed to rebut.

Consequently, I accept the Plaintiff-Applicant€™s affidavit evidence and hereby find the 1st defendant-contemnor guilty of disobedience of court order in Judgment of 27-11-2008, Enforcement Order of 23-02-2009 and all the subsequent Execution Processes connected therewith and

I hereby grant the application and commit the 1st Defendant-Contemnor EMEKA SYLVANUS MADUBUIKE to prison until he purges the contempt.€

In the following terms:

To undo all that he has done to the extent of contravention and or to undermine the orders of court particularly: –

1. Remove the locks to the warehouses on the ground floor of the plaintiff €“ applicant€™s property.
2. Remove locks to the main gate to the plaintiff €“ applicant€™s property.
3. Remove the fence wall blocking and barricading the plaintiffs €“ applicant (sic) access to his property.
4. File affidavit of compliance to be verified by the court bailiffs or officers of court preferably those who levied or executed the judgment orders on 6/07/2011 and the plaintiff €“ applicant.
5. Undertake in writing never to take the law into his hand except through due process of law in relation to this property.

THIS SHALL BE THE ORDERS of this Court. SO BE IT.€

The law is settled regarding how the burden of proof of €œproof beyond reasonable doubt€ may be discharged by the prosecution or whoever wishes to establish the commission of a crime by another person in any proceeding. It can be done by any or a combination of the following ways of proving the commission of a crime, namely; (i) by confessional statement(s); (ii) by circumstantial evidence; and (iii) by evidence of eyewitness otherwise referred to as direct evidence. See EMEKA V THE STATE (2001) 7 NSCQR 582 at 593-594; and MOSES V. THE STATE [2003] FWLR (Pt. 141) 1969 at 1987 amongst many others.

The evidence which the Respondent placed before the Lower Court and which it apparently relied upon and accepted in finding the Appellant guilty of contempt are necessarily the supporting affidavit of Form 49 and the Exhibits attached thereto and the further affidavit of the Respondent on Form 49 and the exhibits attached thereto. The affidavits in question were deposed to by the Respondent. The Respondent never showed himself as residing in/on the property or properties in respect of which the Appellant is alleged to have committed the contemptuous acts ascribed to him in either of the two affidavits. Neither was the Appellant disclosed to be residing on the said property or properties. In any case there is no deposition in the affidavits that the deponent saw the Appellant doing any of the alleged contemptuous acts. The position of the law is clear regarding how facts are to be proved when the facts are not the contents of documents. In this regard, if the fact to be proved is one which can be seen, evidence in that regard must be given by a witness who claims to have seen that fact. The Respondent has argued and this is just as the Lower Court itself said, that the Appellant made a general denial in respect of the depositions in the supporting affidavit. I cannot but observe again, as to how else the Appellant was expected to respond to an affidavit which itself never made any pointed allegation against the Appellant in that the deponent never claimed that he saw the Appellant do anything. The matter of contempt before the Lower Court was never made a Police case so the issue of confessional statement made to the Police clearly does not arise. This is not to say that a confession can only be made to the Police. By Section 28 of the Evidence Act, 2011, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. And having regard to the settled position of law, a confession can be in writing or made orally. There is no evidence of any confession made to any person in any manner by the Appellant in respect of the contemptuous acts he was alleged to have committed. I must also state that the fact that the Appellant was one of the various parties presumably affected by the orders of the Lower Court which he was alleged to have dealt with contemptuously, certainly is not enough circumstantial evidence to establish the offence he was alleged to have committed by the Respondent. Indeed, the fact that there are other parties cited as respondents in Form 49 on page 35 of the record as well as the uncontroverted fact that some other people were living on/in the property or properties in question before the execution of the judgment of the Lower Court only succeeded in whittling down any irresistible inference that could have been made from the fact that the Appellant being totally aggrieved with the execution, committed the contemptuous acts alleged against him. In other words, the alleged contemptuous acts could have been done or carried out by any other person apart from the Appellant. Flowing from all that has been said is that the Respondent never placed any evidence before the Lower Court showing the Appellant to be the actual person who committed the contemptuous acts alleged against him not to talk of proving such to have been the case beyond reasonable doubt. The Lower Court in my considered view did not properly apply the principle of law that the allegation of crime in a civil matter must be established beyond reasonable doubt to the evidence presented by the Respondent and which it accepted. If it had, the Lower Court was bound to have come to the conclusion that the Respondent did not prove the allegation of contempt against the Appellant beyond reasonable doubt. Indeed, it is a further display of a misconception and misapplication of the principle of €œproof beyond reasonable doubt€ for the Lower Court to have held that the Appellant was justifying his contemptuous act by raising the issue that the property over which he was said to have allegedly committed the contemptuous acts was not covered or was not the subject matter of the court judgment or orders on which execution was levied. This is so as there was nothing in the counter-affidavit remotely suggesting that the Appellant admitted committing the contemptuous acts even if they were in relation to the said property.

Flowing from the all that has been said is that the finding of the Lower Court that the Appellant is guilty of €œthe disobedience of court orders in judgment of 27/11/2008, enforcement order of 23/2/2009 and all the subsequent execution processes connected therewith€ on the evidence of the Respondent which it accepted, is undoubtedly perverse and cannot be allowed to stand. By this conclusion, the issues formulated by the parties for the determination of the appeal are accordingly resolved in favour of the Appellant.

I have in the course of resolving the broad issue by which I have resolved the issues formulated by the parties dwelled on the attack unleashed by the Respondent on submissions in the Appellant€™s brief relating to the non-establishment of the identity of the Appellant as the person who committed the contemptuous acts alleged against him and found to the effect that the position taken by learned counsel for the Respondent has no basis in law. I now only wish to say that I do not see any useful purpose that dwelling on the attacks unleashed by the Respondent on some other paragraphs of the Appellant€™s brief of argument would serve. This is because the arguments in question in the other paragraphs of the Appellant€™s brief of argument, are totally irrelevant for the resolution of the appeal and were not relied upon at all in this judgment.

In the final analysis, and having resolved the two issues formulated for the determination of the appeal by the parties in favour of the Appellant, it follows that the appeal is meritorious and is hereby allowed. Accordingly, the judgment of the Lower Court delivered in Suit FHC/E/33/94 on 18/6/2013, is set aside and the Appellant is hereby acquitted and discharged of the contempt of court in respect of which he was found guilty by the Lower Court.

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Other Citations: (2016)LCN/8825(CA)

Rimamnde Bitrus Nuhu V. Senator Emmanuel Bwacha & Ors (2016)

LawGlobal-Hub Lead Judgment Report

SAIDU TANKO HUSAINI, J.C.A.

This appeal is against the Ruling delivered at the Federal High Court, Jalingo in the Taraba Judicial Division on the 13th September, 2015 in Suit No. FHC/TAR/M/24/2015.
The Appellant as plaintiff instituted action at the Federal High Court, in the Federal Capital Territory, Abuja by way of the Originating Summons dated and filed on the 31st December, 2014 wherein he sought for the determination of the sole question, that is:
”Whether the 2nd defendant for the purpose of selecting its candidates for the Senate Primary Election for Taraba South Senatorial District in Taraba State for the 2015 general election can adopt a procedure other than that provided in 2nd defendant?s Electoral guideline for Primary Elections 2014 the 2nd defendants Constitution 2012 (as amended) and the Electoral Act, 2010 (as amended).”

As a consequence the plaintiff (Appellant) sought all the reliefs covered the Originating Summons as follows:
?WHEREOF the plaintiff (s) the followings:
(i) A DECLARATION that the 2nd defendant cannot adopt any procedure other than

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that provided in the 2nd defendant?s Electoral Guideline for Primary Elections 2014, Section 50 (5) of the 2nd defendant?s Constitution 2012 (as amended) and Section 87 (4) (c) (i) & (ii) of the Electoral act, 2010 (as amended) for the purpose of selecting candidate for Senate to represent Taraba State South Senatorial District in Taraba State for the 2015 General Elections
(ii) A DECLARATION that the 2nd defendant having not complained with its own Electoral Guideline for Primary Elections 2014, Section 50 (5) of the 2nd defendant Constitution 2012 (as amended) and Section 87 (4) (c) (i) & (ii) of the Electoral Act, 2010 (as amended) has not validly conducted for senate to represent south Senatorial District in Taraba State, for the 2015 General Election.
(iii) AN ORDER nullifying the primary elections conducted by the 2nd defendant on the 11th December, 2014 for the purpose of nominating a Senate candidate for the 2nd defendant to represent Taraba South Senatorial District at the Senate for the 2015 General Elections
(iv) AN ORDER directing the 2nd defendant to conduct a fresh primary election in accordance with the 2nd

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defendant?s Electoral Guideline for Primary Elections, 2014 in compliance with the 2nd defendant?s Constitution 2012 (as amended) and the provision of the Electoral Act, 2010 (as amended) for the purpose of nominating a Senate candidate for the 2nd defendant to present Taraba State Senatorial District in Taraba State.
(v) AN ORDER restraining the 3rd defendant from accepting and /or recognizing or dealing in any manner with the name of the 1st defendant as candidate of the 2nd defendant for the Senate for Taraba South Senatorial District for the 2015 General Election
AND FOR FURTHER ORDERS (S) as this Honourable Court may deem fit to make in the just determination in the circumstances.?

The Originating Summons had in support an affidavit of 25 paragraphs and certain documents among which are the Electoral Guidelines for Primary Election 2014 of the Peoples, Democratic Party and the Constitution of the Peoples Democratic Party. The Originating Summons is further accompanied with the written address of counsel as at the date of filing on the 31st December, 2014. See pages 142 ? 157 of record.

?At the sitting of the 3rd

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February, 2015 at Abuja, the Federal High Court by an order issued the same date, caused the suit that is, the Originating Summons to be transferred to the Federal High Court, Jalingo Tarba State wherein, at the Registry, the Suit was assigned with No. FHC/TAR/SC/5/15 and thereafter caused the process to be served on the defendants.

Upon service of the Originating Summons, the 1st and 2nd defendants, now respondents filed their separate conditional appearance, and thereafter filed their separate and distinct Motion on Notice, that is Motion on Notice No. FHC/TAR/M/28/2015 filed on the 30th August, 2015 for the 1st defendant/respondent and Motion on Notice No. FHC/TAR/M/27/2015 filed 30th April, 2015 for the 2nd Respondent. The Appellant in turn filed his response only in respect of the application by the 2nd defendant (respondent). In both applications, the 1st and 2nd defendants (respondents) urged on the Court below to strike out or dismiss the Originating Summons for being grossly incompetent or null and void based on the grounds set out in the respective Motions on Notice, the affidavits in support of the two Motions and their written addresses.

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Upon hearing of the two applications on the 20th May, 2015 and the response of the appellant, the Court below, in 2 (two) separate Rulings delivered the same day on 17th September, 2015 declined jurisdiction and upheld the objection of the 1st and 2nd respondents.

Peeved by the Court below the plaintiff by the Notice filed on the 22nd October, 2015 lodged an appeal to this Court on 7 (seven) grounds as contained in the record of appeal at pages 459 to 466. The record of appeal as has since the 16th November, 2016 been transmitted to this Court.

In the briefs of argument filed and exchanged between counsel, 4 Issues as formulated by the Appellant in his brief filed on the 23th December, 2015 at pages 6 ? 7 were agreed upon and indeed adopted by the 1st and 2nd respondents in their joint brief of argument filed on the 9th February, 2016 at Paragraph 5.2 of the brief as issues for determination in this appeal save the point(s) of Preliminary Objection raised and is subsumed in the respondents? brief of argument in opposition to this appeal at pages 4 ? 12 of the said brief.

?A separate Notice of Preliminary Objection to the appeal

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which has the same effect was filed along with the brief of argument for the 1st and 2nd respondents on the 9th February, 2016. The 3rd Respondent (INEC) has not filed any brief of argument and they were not represented by counsel on the date the appeal came up for hearing.

Mr. E. A. Ibrahim Effiong at the hearing of the appeal on the 23rd May, 2016 invited our attention to his Notice of Preliminary Objection filed both as a separate process and as a process already incorporated into the brief of argument for the respondents and argument canvassed thereto, and he adopted same to urge on the Court to uphold the Objection and strike out the appeal for reasons canvassed in their brief of argument.

Mr. Abbass Ajiya, learned counsel for the appellant in his response to the Preliminary Objection referred us to the reply brief filed by them 9th March, 2016 in opposition and to arguments canvassed therein in urging us to discountenance the Preliminary Objection.

Being the process which seeks to terminate this appeal in lamine, there is the need to first examine the complaints arising from this objection.

?The sole objection is itself predicated on the

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competence of the appeal and this is how the 1st and 2nd respondents couched it in their Notice of Preliminary Objection, thus:-
?The entire Appeal is a mere academic exercise in that even if the issues raised therein are resolved in favour of the appellant the fortune of the appeal would not change in the face of the unappealed findings in the decision emanating from the objection of the 2nd Respondent thus rendering the appeal grossly incompetent.
PARTICULARS OF THE SOLE GROUNDS
i. The 1st and 2nd Respondents filed separate and independent Applications challenging the jurisdiction of the Lower Tribunal on 9 and 5 grounds respectively as could be discerned from pages 260-319 and 320-376 of the printed Record.
ii. In the application of the 1st Respondent, 7 issues were formulated from the 9 grounds and in that of the 2nd Respondent 5 issues were formulated from the 5 grounds. We refer this Court to pages 273 and 331-332 of the Printed Record.
iii. The Lower Court upon hearing the Applications reformulated two issue for determination in respect of the Objection of the 1st Respondent and 3 in respect of that of the 2nd Respondent. See

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pages 421-422 and 450 of the Printed record.
iv. The Lower Court on 17th September, 2015 delivered two separate and distinct rulings as could be gleaned from pages 399-430 (ruling on the objection of the 2nd Respondent) and pages 431-457 (Ruling on the Objection of the 1st Respondent).
v. The two rulings supra constituted two separate, distinct and independent decisions.
vi. The Appellant filed a sole Notice of Appeal without stating the decision appealed against and in fact from the Notice and grounds of Appeal, it could safely be referred that the appeal is limited to the decision arising from the Objection of the 1st Respondent only on the grounds infra:

Learned respondents? counsel formulated just one (1) issue as arising for determination from those grounds of objection thus:
”Whether in the face of damaging specific findings of the Court below against the Appellant is the objection of the 2nd Respondent which this appeal is unrelated especially to the effect that this appeal is not rendered academic?”

Arguments canvassed in support of the lone issue can be seen at pages 7 ? 12, Paragraphs 4.1 -4.16 by

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which learned counsel for the 1st and 2nd respondents alluded to the 2 (two) separate applications made by them at the Court below. Be seen at pages 252 ? 319 and 320 ? 376 of the printed record. He noted that the Court below gave two separate and distinct rulings in respect of those two applications and he referred us to the two ruling at pages 399 ? 530 and 431 ? 457 of the printed record. Learned counsel argued that all the grounds of appeal as highlighted in particular (iv) of the particulars of grounds of objection arose from the decision or ruling given in respect of the objection of the 1st respondents alone and thereby leaving the decision and the findings contained therein in respect of the objection of the 2nd respondents as still extant. He referred in particular to the findings of the Court below at pages 428 ? 429 of the record which he said were not appealed against. These findings he said, are that the suit disclosed no locus standi, cause of action and that the matter was not justiciable. He contended that this finding of which there was no appeal was peculiar to the objection of the 2nd respondent only. He went

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further to submit that where the findings of a Court are not specifically challenged the same remain undisputed and is deemed admitted citing in support the decision in N.B.C.I. v. Integrated Gas (2005)2 SCM 67, 205; Dabo v. Abdulahi (2005) 4 SCM 52, 69; Olukoya v. Asheru(20060 7 SCM 175, 188; Standard Nig. Entr. v. N.B.C.I. (2006) 4 SCM 194, 2005; Bhojsons Plc v. Kalio (2006) 4 SCM 1 13 14 in consequence of this, it is argued that the instant appeal even if it succeeds will have no meaningful impact on the appellant who derived no benefits from the ruling so far as there was no appeal over the findings of the same Court in the second ruling. To this end he said the appeal was not only academic and hypothetical but frolicsome. He cited a number of authorities on that point among which are: (i)Plateau State v. Attorney General of the Federation(2006) 3 NWLR (Pt. 967) 346, 419. (ii)Adeogun v. Fashogbon(2009) All FWLR (Pt. 449) 531, 552 553. In such circumstance, it is further argued, the Court will not act in vain to entertain questions of academic nature lacking practical utility value. He relied on Nwora v. Nwebueze (2012) All FWLR (Pt.

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613)1824. The appeal, it is further argued, being academic in nature, this Court lacks jurisdiction to determine academic and hypothetical questions, relying on Ikyenya v. PDP (2012) All FWLR (Pt. 628) 837, 853. Such question or appeals he said should be discountenanced by the Court. He relied on quite a number of authorities including (i) Ugba v. Suswan (2014) All FWLR (Pt. 748) 8 25, 855 (ii) Audu v. Attorney General of the Federation (2013) All FWLR (Pt. 667) 607), 024. (iii) Abe v. University of Ilorin (2013) All FWLR (Pt. 697) 682, 698 (iv) Oke v. Mimiko (2013) All FWLR (Pt. 693) 1853, 1879 (v) INEC v. Atuma (2013) All FWLR (Pt. 697) 619, 633.
He argued further and submitted that a Court is competent when:-
(a) It is properly constituted.
(b)The subject-matter of the case is within the jurisdiction of the Court and there is no feature in the case preventing the Court from exercising its jurisdiction, and
(c) The case comes before the Court duly initiated by due process and upon fulfillment of any condition precedent.
He cited: Hamza & Anor. v. Sani & Ors (2015) 1 SCM 174, 191; APGA v. Anyawu (2014) All FWLR(Pt. 735)

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243, 263;Emenike v. PDP (2012) All FWLR (Pt. 640) 1261, 1289; Akpangbo-Okadigbo v. Chidi & Ors. (2013) 3 SCM 141, 202 to urge us to strike out or dismiss this appeal on this ground.

In the reply brief filed on the 9th March, 2016, the appellant questioned the competence of the brief of argument filed by the Respondents stating that the brief was in excess of 30 page limit as ordained or allowed by the Rules under Order 18 Rule 6 ( of the Court of Appeal Rules, 2011, that is, putting together 1st and 2nd respondents? brief of 28 (twenty eight) pages and the brief containing the list of legal authorities filed by them consisting of 3 (three) pages. He argued that this failure of compliance with the rules meant that no Brief of argument was filed by the 1st and 2nd Respondents, the consequence of which is that they cannot be heard on oral argument and they are deemed to have admitted the truth of the contents of the brief filed for the Appellant. He cited in support the decision in Dilibe v. Nwakozor (1986) 5 NWLR (Pt. 41) 315, 333; Oyesoh v. Nnebedan (1992) 3 SCNJ 129, 153; Nwokoro v. Onume (1990) 3 NWLR (Pt. 136) 22, 32; Unity Bank Plc. v.

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Edward Bouari (2008) 2 SCNJ 116.

In response to the specific complaints raised by the preliminary Objection, the Appellant or his counsel canvassed the lone issue distilled by him and that is, whether the Preliminary Objection as argued by the Respondents, has merit?

It is argued that the 2 (two) rulings delivered at the Court below at pages 399 and 431 of the record of appeal were products of the same Motion Number i.e FHC/TAR/M/24/15 in the same suit No. FHC/TAR/CS/5/15 both of which were delivered on the 17th September, 2015 by the same Judge, Hon. Justice D. U. Okorowo.

To further buttress this point learned counsel referred to the Notice of Appeal in Appeal No. CA/YL/105/15 to submit that the appeal is against the decision of Hon. D. U. Okorowo ,Judge dated the 17th September, 2015 in Suit. No. FHC/TAR/CS/5/15. By reference to part 2 of the same Notice of Appeal it is also contended that the Appeal is against the whole decision of D. U. Okorowo delivered on 17th September, 2015 in Suit. No. FHC/TAR/CS/5/15.

?Learned appellant?s counsel therefore urged us not to succumb to the arguments canvassed by counsel for the respondents in

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their brief stating that those submissions bordered on technicalities but urge on the Court to deal with the substance in order to achieve substantial Justice.

Before I take on the issues raised by the Preliminary Objection, there is equally a fundamental question which throw up a challenge that because of the seeming or apparent defects in the brief of argument filed by the Respondents, there was no brief at all by them and that this Court should discountenance that defective brief. I will first address this point.

Going by the records it is discernible that the 1st and 2nd respondents filed their brief of argument on the 9th February, 2016 and the same brief dated the 4th February, 2010 runs into 28 pages.
By another process filed on behalf of the 1st and 2nd respondents on the same 9th February, 2016, captioned list of authorities, in respect of the same appeal, that is, Appeal No. CA/YL/105/2015, between the same parties, is a document of 4 pages.
Order 18 Rules 3(1) and (2) of the Rules of this Court on the Forms and Contents of a brief, provide thus:-
?3-(1) The brief, which may be settled by counsel, shall contain an

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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, date and pages of cases reported in the Law Reports or elsewhere including the summary of the decision 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?
It is clear that by this provision, the document or process captioned list of authorities, whether subsumed in the main brief of argument or not are still part of the brief, so far as it is intended to support arguments or submissions contained in that brief which in any case shall not exceed 30 (thirty) pages. See Order 18 Rules 6 (a).
The process filed on the 9th February, 2016 and captioned ?List of Authorities? run into 4 pages and these pages when added to 28 (twenty-eight) pages that is the number of pages contained in the 1st and 2nd respondents? brief of

15

argument will run into 32 pages or thereabout which is in excess of the 36 page limit allowed by the rules of Court.
The consequence of filing a brief of argument in excess of 30 page limit is the provision which empower the registry of this Court to refuse to accept such briefs upon presentation of same for filing. See Order 18 Rule 6 (c) of the Rules of this Court.
Now, the brief of argument for the 1st and 2nd respondents like the brief of argument for the appellant are now before us in this Court. It escaped the eagle eyes of the registry albeit undeservedly and has gone beyond the registry, and it is now before us, in this Court. Should this Court at this point in time ignore this brief as argued by the appellant or his counsel in their brief? Not too long ago this Court was confronted with a situation similar to this and this is what I said at that time, in the case of Iorundij Atau Azanke & Anor v. Emmanuel Machoko (unreported), a decision delivered on the 26th May, 2016 in Appeal No. CA/YL/48/2014 and I quote in Extensor, thus:-
?Appellants? brief of argument before the Court, unarguably, runs through 36 pages contrary to

16

the stipulation in Order 18 Rule 6 (a) of the Rules of this Court.
Leave was neither sought nor obtained as at the date the brief was filed on the 7/12/2015. There is nothing on record to so suggest that this Court by an order has directed the appellants to file their brief of argument in excess of 30 page format as provided for in the rules. This, thus is a case of non-compliance with the mandatory provisions of the Rules. But Rules of Court are meant to be obeyed and not made for the sake of making them as held in Williams v. Hope Rising Voluntary Funds Society (1982) 1 ? 2 SC; African News papers Ltd v. Owososeni (1995) 2 NWLR (Pt. 375) 110; Opera v. Dawell Schuhom-Berger Nig. Ltd. (1995) 4 NWLR (Pt. 390) 440. There is a purpose for making the rules and that is, to check verbosity and to ensure that brief of argument are not unwieldy long winded and cumbersome. Failure of compliance with Rules of Court may not invalidate proceedings or Court process see Order 20 of the Rules of Court but such non-compliance may invite sanctions in other cases as for instance Order 18 Rule 6 (c) of the Rules of this Court provide that every brief which fail to

17

comply with the page limit and page size requirements shall not be accepted by the Registry, for filing. This provision of the Rules cast on the Registry the duty of having to scrutinize all documents or papers especially briefs of argument submitted for filing to ensure compliance. As a clearing house, the registry must not shirk in its responsibilities. It has a duty to sieve the chaff from the grain and refuse to accept all or any Brief of argument for non-conformity with set standards at the point of filing. This is a wake ? up call.
Now, Appellants? briefs of argument of 36 pages, having been accepted and filed at the registry, notwithstanding the provisions of the Rules i.e. Order 18 Rule 6 (a), and has come before us at this level should the Court at the point of hearing discountenance same on account of non-compliance with the rules? I do not think it is the right thing to do, at this stage of the proceedings, to reject briefs of argument of counsel for the Appellant at the point of hearing his case. Rather, this Court guided by the principle of fair hearing will be inclined to overlook any inelegance or flaws noticeable in the

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appellants? brief of argument and do substantial justice to it as it has a duty to examine the arguments contained therein and decide the case on the merits. See: Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279; Ekpemupolo v. Edremoda & Ors LPELR ? 1089 (SC).?
I still want to stand by those conclusions in the case referred to above and I think my conclusion or opinion there is relevant to the issue on hand in this appeal case hence I adopt same. I do not think it is wise thing to do, to ignore issues raised by the respondents in the Notice of Preliminary Objection. There is need to examine their claim by that objection.

The 1st and 2nd respondents indeed respectively filed their two separate Motions upon being served with the appellant?s Originating Summons. The Motion dated the 30th August, 2015 and filed on behalf of the 1st respondent on the same date was directed at the Jurisdiction of the Court below to entertain the claim. So is the Motion dated and filed on the 30th April, 2015 on behalf of the 2nd defendant. The Court below heard the 2 (two) applications the same day and reserved ruling in each one of them. In the ruling

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(s) delivered on 17th September, 2015. In Suit/Motion No. FHC/TAR/M/24/2015 the Court declined jurisdiction hence this appeal.

I have given thought to all the submissions made by counsel and the authorities cited by them. The gist of the Objection taken lie in the fact that the appeal before us is a sheer waste of time and an exercise in futility such that even if the appeal succeeds, the success will not confer any utility value on the appellant hence the appeal is merely of academic and hypothetical, so far as the appeal over or against 1 (one) ruling or decision leaves the other or the 2nd ruling still extant.

I know that the Courts over time have refused to indulge and deal with academic and hypothetical questions rather the Courts are established to deal with matters in difference between the parties. This is so because academic or hypothetical questions do not help in the determination of live issues in a matter. They are merely frolicsome, not touching or affecting the very tangible and material aspect in the adjudication process. See: Okotie-Eboh v. Manager (2004) 18 NWLR (Pt. 905) 242;Bangboye v. University of Ilorin (1999) 10 NWLR (Pt. 6

20

22) 290; Owners of MV. Arabella v. NAIC (2008)11 NWLR (Pt. 1097) 182 or (2008) 34 NSCQR (Pt. 11) 109; Adeogun v. Fashogbon 149 (SC); Yusuf v. Tolushi (2008) 14 NWLR (Pt. 1107) 237 or (2008) 6 ? 7 SC (Pt. 1) 164.

The question therefore is whether the current appeal is merely academic or hypothetical as being canvassed by the respondents in the light of the ruling at pages 399-430 of the printed record over which it is argued there is no appeal? This is the contention of counsel to the respondents. It is claimed that the current appeal does not relate to the ruling referred to above but the ruling at pages 431-457 of the printed record in respect of the Motion on Notice filed by the 1st respondent.

There is the need therefore to take another look at the Notice of Appeal so as to discover to which ruling or decision, the appeal relates.
The Notice of Appeal state at page 459 of the printed record thus:
?NOTICE OF APPEAL
TAKE NOTICE that the appellant being dissatisfied with the decision of the Federal High Court of Justice of Taraba Judicial Division, Jalingo, as contained in the ruling of Honourable D. U. Okorowo, Judge dated

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the 17th day of September, 2015 in Suit No. FHC/TAR/CS/5/1, do hereby appeal to the Court of Appeal, holden at Yola, upon the grounds set out in Paragraph 3 and will at the hearing of the appeal seek the relieves (sic) set out in Paragraph 4.
AND the appellant further state that the names and addresses of the person directly affected by the appeal are those set out in Paragraph 5?

I stop here for now. The decision appealed against unarguably, is the Ruling:
(i) Of Honourable D. U Okorowo, Judge.
(ii) Dated or delivered on the 17th day of September, 2015
(iii) In Suit No. FHC/TAR/CS/5/2015
(iv) In Motion No. FHC/TAR/M/24/2015
The decisions referred to earlier at pages 399-429 and pages 431 ? 457 both have and retain the characteristics listed as in (i) (ii) (iii) and (iv) above. And that is not all. The appeal is against ?the whole decision? and this can be discerned from the second part of the Notice of Appeal ? captioned: PART OF THE DECISIONS OF THE LOWER COURT COMPLAINED OF: The word ?Decision? as Constitutionally defined as Section 318 (1) of the 1999 Constitution as amended

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means:
?any determination of that Court and includes Judgment; decree, order, conviction, sentence or recommendation?
See Dr. Kubor & Anor v. Dickson &Ors (2012) 10 ? 11 SC 1; Garuba v. Omo Khodion& 13 Ors. (2011) 6 ? 7 .(Pt. V) 89.This definition thus is wide enough to accommodate any ruling or rulings of Court as in the instant case on appeal. The appeal by the appellant as presented by the Notice of Appeal under reference is not an appeal against just1 (one) decision but an appeal against the ?decisions? of the Lower Court and if I may add, it is an appeal against the decisions delivered by D. U. Okorowo, the Presiding Judge of the Federal High Court of Justice, Taraba State Judicial Division, Jalingo, on the 17th September, 2015 in Suit No. Motion FHC/TaR/Cs/5/2015 in FHC/tAR/M/24/2015.

Every Notice of Appeal contains what the subject matter of the appeal is all about. See: Dyagyadi v. INEC (No. 2) (2010) 18 NWLR (Pt. 224) 154 (SC). The subject-matter or areas addressed in this appeal and to which a complaint has been lodged is with respect to the Issues, among others of:
i. Service of

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Originating Process
ii. The issue of non-compliance with the provision of Section 97 and 98 of the Sheriffs and Civil process Act..
iii. The Issue of the Plaintiff?s/Appellant?s lack of locus standi at the time his claim was filed and/or his claim not having disclosed any cause of action.
iv. The issue or question of the justiciability of the action or claim.

I have read the ruling of the Court below at pages 399 -430 of the printed record and I can say without equivocation that issues or the subject matter covered by the Notice of appeal are the same or similar subject areas or matters over which the Court below has also addressed the ruling delivered by it on the 17th September, 2015 which is at pages 399 ? 430 of the printed record, for instance the Court at pages 421 ? 429 of the printed record raised and addressed 3 (three) fundamental questions as they relates to (a) Plaintiff?s/appellant?s Cause of Action, i.e- whether the Suit filed by him disclosed any cause of action as to confer on the Court the jurisdiction to entertain the claim (b) the issue of the locus

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standi of the plaintiff, to initiate the suit and (c) the Justiciability of the Suit instituted by the plaintiff /appellant.

To contend as the respondent did in their argument in support of the Preliminary Objection that this appeal does not relate to the ruling at pages 397 ? 429 of the record is to my mind a misconception of the issues raised in the Notice of appeal and for this I should overrule the preliminary Objection and dismiss same.

But granted that the appeal relate to one (1) decision (ruling) only and not the other (ruling) as claimed, how then does it affect the validity of the Notice to which this appeal relate? That is the question: The ruling over which there is no appeal remain as a subsisting and valid decision and therefore binding on the parties to it even if the current appeal succeeds. I therefore find no merit in this Preliminary Objection which is hereby dismissed.

?I will now consider this appeal on the merits. Before now reference was made to the briefs of argument filed on behalf of parties on both sides including the reply brief filed on the 9th March, 2016. In the brief by the appellant 4 (four) issues were

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distilled at page 4 as follows:-
1. Whether in the circumstances of the Suit of the Appellant any of the provisions of the rules of the Lower Court or Sheriffs and Civil process Act regarding the issuance and service of originating process was violated?
2. Whether in the determination of locus standi or cause of action it is permissible to consider evidence that is extrinsic or extraneous to the originating process?
3. Whether in the circumstances of the default of defence/response to the Originating process filed by the Appellant he is entitled to the Judgment of the Lower Court in terms of the indorsed relieves? (sic)
4. Whether in the determination of the application of the 1st and 2nd respondents, the Lower Court glossed over the fundamental issues, decisive evidence and crucial legal submission?

?By the brief of argument filed on 9th February, 2016 the 1st and 2nd respondents adopted all the 4 (four) issues formulated by the appellant. It follows therefore that this appeal will be decided on the 4 (four) issues formulated by the appellant in his brief of argument and this is what I now proceed to consider arguments proffered on

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those issues:
ISSUE 1
”Whether, in the circumstance of the Appellant, any of the provisions of the Rules of the Lower Court or Sheriffs and Civil Process Act, regarding the issuance and service of Originating Process was violated? (distilled from grounds 1 and 2 of the Notice of appeal)”

In addressing this question in his brief of argument at pages 7-10, learned counsel for the appellant drew the attention of the Court to the fact that the process by which the Suit was argued was filed or was issued at the Federal High Court in Abuja and to be served on all defendants/respondents in Abuja whose address of service were also endorsed on the writ. That service had not been effected as the Judge, Presiding at the Abuja Division of Federal High Court, A. R. Mohamed caused the Summons to be transferred to Taraba Division of the Federal High Court on the 23rd February, 2015, where service was now effected on the defendants/respondents, that upon the process now being served the 1st and 2nd respondents entered appearances and filed a motion on Notice No. FHC/TAR/M/28/15 dated the 30th April, 2015 wherein the objection was raised alleging that the

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appellant did not seek and obtain leave of the Federal High Court sitting in Jalingo to action and serve the process in Abuja.

Before us it is argued that leave to issue an originating process was not necessary in the circumstances of this case. That leave is only necessary where service is to be effected outside the territorial limit of the Court. It is argued that the fact of the transfer of the Suit to Taraba Division of the Federal High Court did not invalidate its issuance by the Abuja judicial Division of the Court which still remain as one and the same Court. He cited and relied on Egbe v. Areka (1988) 7 SC (Pt. 3) 98, 11.

Learned appellant?s counsel further argue that assuming that the issuance of the Writ became invalidated by reason of the transfer of the Suit, then there would be no need to seek leave of the ?recipient Division? to serve the Writ within the ?Dispatch Division? in reference to Section 19 (1) of the Federal High Court Act, Cap F. 12 CFN 2004. He submits further that the Federal High Court was established to exercise jurisdiction throughout the Federation, consequently leave of the Court below

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was not necessary to initiate and issue and serve a Writ within the Federal Republic of Nigeria and the Court below was in error to hold otherwise.

Learned counsel further submits that it amounts to misdirection in law for the Court below to invoke a general rule or law or practice to displace a distinct or particular authority vested by a Statute, in obvious reference to Section 96 (1) (2) of the Sherriff and Civil Process Act Cap. S. B. Law of the Federation of Nigeria, 2004 vis a vis Section 19(1) of the Federal High Court Act Cap. F12 LFN, 2014. He cited and relied on: Ezeadukwu v. Maduka (1977) 8 NWLR (Pt. 518) 835, 647.

By further reference to Order 6 of the Federal High Court (Civil Procedure) Rules 2009, he argued that there is no provision in the rules which make the grant of leave as a condition before issuance of a Writ by one Division of the Court before service in another Judicial Division.

In a further submission by him it is contended that the Court below in the course of its ruling raised an issue of plaintiff?s non-compliance with the provisions of Section 97 and 98 of the Sheriffs and Civil Process Act. He argued that it

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was wrong of the Court to do so on its own and proceed thereat, and without giving either of the parties a hearing on the point to invalidate the summons and thus striking out the Suit. It is argued that neither the Plaintiff/Appellant nor defendant/respondent raised issue as regards Section 97 and 98 of the Sheriffs and Civil Process Act. He argued that by the Court suo motu invoking those provisions, it was making a case different from the one the parties had placed before it hence the need arose to allow the parties to address on it in line with the principle of fair hearing. He cited and relied on the following cases: Concord Press (Nig) Ltd v. Olutok (1999) 9 NWLR (Pt. 6220) 578, 590; Dalek v. Ompadec (2007) 2 SCNJ 208, 242; Ezeonwu v. ONYECHI (1996) 2 SCNJ 250, 269.

Learned counsel submits further that so far as leave was not required to serve the Originating process, it follows that of Sections 97 and 98 of the Sheriffs and Civil Process Act was not applicable to this case. That it was fatal for the Court below to rely and act on same in its decision or ruling. He argued that the Court ought to have confined itself to issues brought before it, and

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he relied on: Akinfotan v. Akinnola (1994) 4 SCNJ (Pt. 1) 30, 50; Onyamaeh v. Ogbuchulum (1996) 4 SCNJ 237, 244; Ckukwuma v. Federal Republic of Nigeria (2011) 5 SCNJ 40, 71; Kim v. the State (1992) 4 SCJ81, 92, learned appellant?s counsel urged on the Court to resolve Issue 1 in their favour.

For counsel to the respondent arguing par contra relative to issue No. 1, it is contended that the said issue No. 1 was restrictive in scope and thus could not have been derived from ground 2 of the grounds of appeal. Learned counsel urged on the Court therefore to hold that Issue 1 relate to ground 1 only and that ground 2 be deemed as abandoned and that same be struck out. He relied on Victor v. State (2014) Alims (Nig.) Ltd v. UBA 2013 All FWLR (Pt. 692) 1756, 1763; Eco Bank (Nig.) Plc. v. Gusan (2013) All FWLR (Pt. 699) to urge on the Court discountenance any argument relating to that ground citing Shuadu  v. The State (2014) All FWLR (Pt. 750) 1381, 1391 and NBC v. Ubani (2014) All FWLR (Pt. 718) 803, 835.

In response to the issue of whether leave of the Court below was required for issuance and for service of the Originating Summons, counsel has

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argued stating that the Sheriff and Civil Process Act, Cap S. 6 Laws of the Federal of Nigeria was a relevant pieces of legislation in respect of Originating processes issued and for service outside the State, that the Act applies to Federal High Court and he relied on the case of Owner of the MV Arabella v. N.A.I.C(2008) All FWLR (Pt. 443) 1208, 1226-1230. His submission, in a nutshell, is that in absence of leave first being sought and obtained to serve the Summons or Writ outside jurisdiction, any service effected with the Writ was improper to render the suit incompetent hence Court below was right in striking out the originating summons. Learned respondent?s counsel contended that a similar argument or submission was made at the Court below but the appellant was mute about it to suggest that he admitted it and thus urged on the Court to so hold. He relied on Onmeje v. Odumu (2011) FWLR (Pt. 600) 1328, 1352 Ugboaja v. Akintoye Sawemino (2008) All FWLR (Pt. 4390 407, 418.

?In the reply brief filed for the appellant he argued that issue No. 1 was not only derived from ground 1 but from ground 2 as well of the grounds of appeal following the ruling of

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the Court below. He argued that the 2 (two) grounds arose from the ruling in relation to the provisions of Sheriffs and Civil Process Act, and that it was proper to raise a single issue from the two grounds. He cited and relied on Yusuf v. Akindipe (2000) 5 SCNJ 128, 134.

The Appellant, he argued, has that the appellant has not violated any of the provision of the said Act as alleged . i. e. Section 96, 97 and 98 of the Sheriffs and Civil Process Act which he says are not applicable to this case in that the Originating process was filed and or issued at Abuja and same to be served in Abuja.

OPINION
Issue of service is a fundamental requirement in the adjudicative process. So important is it that the absence of same would lead to an entire proceedings or a suit being voided as a nullity. This is so because by dint of service of a Court process the party on the other side is put on Notice of the nature and character of the suit that wait him, and thus calling on him to get set and be prepared for the impending case or Suit. Issue of service is thus a condition precedent to the hearing of any given case to which that service or Notice relates. It

33

is the service of the relevant process that confer on the Court the jurisdiction to hear the matter in relation to that person. See: Alhaji Dan Rausa& Co. v. Panatrade Ltd (1993) NWLR (Pt. 298) 204 or (1993) 7 SCNJ 100; Kida v. Ogunmola (2006) 13 NWLR (Pt. 997) 377; Africa C. B. Pl. v. Lasada Nig. Ltd (1995) 7 NWLR (Pt. 405) 25; Uchandu v. Ogboni (1999) 5 NWLR (Pt. 6033) 337 or (1999) 4 SC (Pt. 11) 1; Eimskip Ltd v. Exquisite Industries (Nig.) Ltd. (2003) 4 NWlR (pt. 809) 88 (005) 1 SC (Pt. ii) 94; Aken Consult v. Ukey (1981) 1 Sc 6, 226; Okoye & Anor. v. Centre Point Merchant Bank (2008) 15 NWLR (Pt. 1110) 335 SC. Tsokwa Motors (Nig.) Ltd v. UBA Plc. (2008) 2 NWLR (pt. 1671) 347. The duty on the Plaintiff or claimant seeking to initiate a Suit becomes even more compelling when the law require of him to first seek and obtain leave of Court preparatory to the Originating Summons being issued and served and this, I think is the live issue in this case on appeal. The Court below delivering its ruling on the application filed by the respondents raising objections on the competence of the Suit before it took the view that since leave was not sought and

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obtained and the provisions of Section 96, 97 and 98 of the Sheriffs and Civil Process Act not having been observed, then the Suit initiated by the appellant was incompetent.
Before I go any further you will permit me my Lords to pause here for a while and pass a few remarks by way of observation on the submission made by counsel to the respondent that issue No 1. Was not derived from ground 2 of the Notice of appeal as alleged and to that extent the said ground 2 has been abandoned and same should be struck out.

?In his brief of argument the appellant at page 7contends that Issue No. 1 was formulated from 2 (two) grounds in the Notice and Grounds of appeal, that is to say from grounds 1 and 2. The said Issue No. 1 is presently being considered but there is the need to look at grounds 1 and 2 of the grounds of appeal again. Ground 1 (one) along with the particulars state thus:-
?GROUND ONE:
The Honourable trial Court misdirected itself when without adverting his mind to the facts that the originating process was instituted at and duly issued by the Abuja Judicial Division of the Court and consequently transferred to the Taraba Judicial

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division proceeded to hold.
?I have perused the record of this Court and I find no where the plaintiff initiated any application or leave to issue processes in this case? the noncompliance is a fundamental vice and goes to the root of the action. The originating Summons and other processes field with it are invalid, defective and ought to be set aside as this Court has no jurisdiction to entertain it?
PARTICULARS OF THE ERROR
1. The originating summons was filed in and issued by the Abuja Judicial division of the Court
2. At the time the originating process were issued the addresses for service indorsed therein are within the Federal Capital Territory, Abuja.
3. Section 19 (1) of the Federal high Court Act (Supra) vests jurisdiction throughout the Federation on the Court.
4. Section 96 (1) & (2) of the Sheriffs and Civil Process Act, Cap. S6, Laws of the Federation of Nigeria, 2004, did not prescribed or provide for the need to seek or obtain the leave of the Court to serve the originating process within any part of the Federation.
5. By the Rules of the Honourable trial Court, leave is only

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necessary where the service of the originating process is to be effected outside the territorial limit of the Federation.?
GROUND 2 (TWO) STATE THUS:
The honourable trial Court misdirected itself in its decision thereby occasioning grave miscarriage of justice, when it suo motu and without inviting the parties to address it, raised the issue of noncompliance with the provisions of Section 97 and 98 of the Sheriffs and Civil Process Act (Supra) and resolved same thus:
?Both Section 97 and 98 of the Sheriffs and Civil Process Act are requirement of the Statute which prescribes conditions for issuance of the Writ. Failure to comply with the provisions make writ invalid and void. The action based on them is therefore incompetent and liable to be struck out?
PARTICULARS OF THE ERROR
1. None of the Respondents complained about the fact that the originating process were not endorsed as stipulated in Section 97 and 98 of the Sheriffs and Civil Process Act (Supra).
2. It is an elementary and fundamental principle of the determination of dispute between the parties that the Judgment must be confined at the Court setting

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up a new case for the parties.
3. The Court must afford parties the opportunity of being heard on new issues raised suo motu.
4. It is not proper for a Court to embark upon a fact finding investigation that leads to the discovery of facts.
5. Section 97 and 98 of the Sheriffs and Civil Process Act (Supra) do not apply to the case before the trial Court.
6. The Appellant was denied the right to be heard on the point raised by the trial Court.?

A comparative reading of ground 2 of the grounds of appeal and Issue No. 1 will reveal that the latter i.e issue No. 1, contrary to the view held by respondent?s counsel, is indeed related to the complaint in ground 2 of the grounds of appeal by which, the question of the relevance and applicability of Sections 97 and 98 of the Sheriffs and Civil Process Act was the main focus of complaint. Issue 1 which state:?Whether, in the circumstance of the Appellant, any of the provisions of the Rules of the Lower Court or Sheriffs and Civil Process Act, regarding the issuance and service of Originating Process was violated?, embraces the two grounds of appeal under reference and to

38

that extent, ground 2 of the grounds of appeal cannot be said has been or was abandoned as argued by the respondents or their counsel.
Issue No. 1 has been couched in such a manner or language that transcends and cut across the provisions of the Act and the rules relevant to the issue on hand.

The Sheriffs and Civil Process Act Cap S.6 laws of the Federation of Nigeria 2004 at Sections 96, 97 and 98 are provision with regards to;
i. Service of the Writ in any part of the Federation
ii. Endorsement of Writ meant for service outside a State
iii. Writs which should be endorsed and marked as concurrent.
I will endeavor to reproduce those Sections in full thus:-
?Section 96 (1) A writ of summons issued out of requiring the defendant to appear at any Court of a State or the Capital Territory may be served on the defendant in any other State or the Capital Territory
(2) such service may, subject to any Rules of Court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital Territory in which the writ was issued?
?Section

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97. Every Writ of Summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by law of such State or the capital territory, have endorsed thereon a notice
?Section 98. A Writ of Summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent Writ with one for service within such State or the capital territory and shall in that case be marked as concurrent.?
As indicated before, Section 97 and 98 are provisions requiring the endorsement of the originating process. Thus the Writ of summons or any other originating Process being issued and directed for service in a State other than the State issuing it shall have on the writ, the appropriate endorsements as prescribed at Sections, 97 and 98 respectively. From the wordings of the two provisions, compliance is mandatory and non-compliance will lead to the writ or service of it as voidable. See: Odu?a Investment Ltd v. Talabi (1997)10 NWLR (Pt. 523) 1 (SC). Same goes for the Writ or other Originating Process for which

40

leave of Court or Judge was required before issuance and service outside jurisdiction. Failure to obtain leave to serve on a defendant outside jurisdiction of Court renders the issuance of the Writ and service as irregular and can be set aside by defendant provided that he took no steps before approaching the Court to set aside the writ. See:Odu?a Investment Ltd v. Talabi (supra); Korum Ltd v. Intra. Trust.(2010) LPELR ? 4408 (CA).

The big question here is whether the appellant has not jumped the gun when he failed to seek leave of Court at the point of issuance and service of the originating summons?

Learned counsel for the appellant in his brief has argued that by the peculiar facts of this case, it was not necessary to seek leave to issue and serve the originating process given the facts that:
i. The territorial jurisdiction of the Federal High Court extend to cover the entire Nigerian State.
ii. The appellant initiated proceedings at the Federal High Court, Abuja against defendants/respondents who see addresses for service was endorsed on the writ, for service in Abuja, Federal Capital Territory.

?The Federal High

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Court was established by virtue of the Constitutional provision at Section 249 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Federal High Court Act Cap, F 12, LFN, 2004 at Section 1. Whereas the Constitution of the Federal Republic of Nigeria defines the modus operandi in terms of jurisdiction over the subject matter the Court can function which is Section 251, it is the Federal High Court Act that delimits the territorial scope or extent over which the Court can operate. By Section 19 (1) of the Act the Federal High Court was conferred with and has jurisdiction to operate and carry out its functions throughout the Federation. Thus the whole of the territory of Nigeria State constitute one (1) Constituency, so to say, over which the Federal High Court can function and the Act having thus delineated the operational areas for the Federal High Court is it within the legislative intent for the litigant to first seek leave of that Court to enable him, serve a Writ or any other Originating Process at a place in Federation other than the place the writ was issued? That is the question.
?The Federal High Court (Civil Procedure)

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Rules, 2009 make provisions under Order 6 on how service of Court process can be effected. It is in 2 (two) parts. It can be observed that part ?A? which deals with service within jurisdiction has no provision or requirement for application for leave to be made before personal service is effected. See Order 6 Rule 2. Contrariwise is part ?B? of Order 6 on service out of Jurisdiction. See: Order 6 Rules 13, 17, 18 and 31. It follows therefore that leave to issue and serve a Writ is not required where the writ is to be served within jurisdiction.
The term or words ?outside jurisdiction? when used and applied in relation to service of Court process relates in my view to the geographical area not within the territory under the control or supervision of the Court and for which it is necessary to seek leave of Court to effect service outside the jurisdiction of that Court. By the combined reading of Section 19 (1) of the Federal High Court Act and Order 6 of the Federal High Court (Civil Procedure) Rules, 2009, leave of the Federal High Court is not required in my view to effect service of an Originating Process within the

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territory of the Nigerian State, and Section 96 of the Sheriff?s and Civil process Act does not so state.
I am mindful of the decision in Owners of MV. Arabella (Supra) cited and relied on by learned counsel to the respondent where the apex Court considered and construed the provision of Order 10 Rule 14 of the Federal High Court (Civil Procedure) Rules, 1976 to reach conclusion that leave of Court was necessary to serve a writ in Abuja, having been issued in Lagos. In the 1976 rules, the area that constitutes ?outside jurisdiction? was neither defined nor fixed. By the existing rules of the Court i.e Federal High Court Civil Procedure Rules 2009, at Part B of Order 6, leave to Issue and serve a writ is necessary where service is to be effected outside the territory of the Nigerian State but that is not the issue in this case on appeal. The issue rather is whether leave of the Federal High Court is required as a condition for service of a writ issued in one location and directed to be served in another location within Nigeria. No such provision is made under part A of Order 6 of the Federal High Court (Civil Procedure) Rules 2009 in the

44

light of Section 19 (1) of the Federal High Court Act, 2004. Therefore on the issue of service of the Writ issued at the Federal High Court I am of the opinion that leave of the Court is not a precondition for service within Nigeria.

On the issue of the Endorsement of a Writ issued at the Federal High Court, I think this is a different kettle of fish. Section 97 and 98 of the Sheriffs and Civil Process Act have earlier been referred to but the provision which I think is directly on point is Section 97 of the Act. I am inclined to reproduce same along with the Notice expected to be endorsed on the Writ thus:
?Every Writ of Summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or Notice required by the law of such State or the Capitals territory, have endorsed thereon a Notice to the following effect (that is to say)-
?This Summons (or as the case may be) is served out of the State (or as the case may be)and in the.State (or as the case may be)?

?The requirement for

45

endorsement of the Writ in the State other than the State it was issued is mandatory and the legislature was very careful in the use of language such that no one is left in doubt and indeed the plaintiff or claimant. He is not expected to seek leave of Court to effect the endorsement on the writ with the NOTICE referred to above as if it were seeking leave to serve the writ out of the jurisdiction of the Court. All the same the need for endorsement is profound where the writ is to be served in a State other than where it was issued. The effect of the failure of compliance with the requirement of endorsement is fatal to the validity of that Writ. See:-Owners of ?MV Arabella? v. N.A.I.C. (supra). The argument advanced by counsel to the appellant that since he filed his Suit in Abuja where defendants (respondents) also reside, there was no further obligation on the appellant in terms of having to endorse the Writ. In other words he argued that Section 97 of the Sheriffs and Civil Process Act was not applicable to his case. Be it noted that the provision of Sheriffs and Civil Process Act apply to all Courts throughout Nigeria and this is discernible

46

from the introductory note which herald that legislation. See: Owners of the ?MV Arabella? v. N.A.I.C. (2008) All FWLR (Pt. 443) 1208. The appellant as plaintiff filed his Originating Summons at the Federal High Court, Abuja Judicial Division on the 31st December, 2014 wherein he sought a number of reliefs against the defendants now respondent but the Court holden in Abuja on the 23rd February, 2015 in its wisdom by an order issued the same date transferred the Suit to Taraba State Division of the same Court for adjudication. See: page 388 of record.

There is no question about the power vested in the Court below to effect such transfer of cases as it did. Rather the Act establishing the Court and the Rules of Court vest in the Court the power to make such transfers. Section 22 of the Federal High Court Act, 2004 is authoritative.

The case having thus been so transferred to Taraba Division of the Federal High Court, it will assume jurisdiction as if the matter was originally filed at that Court since hearing must commence de novo but I do not think that this act of transfer confer additional obligation on the appellant or his counsel whose

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writ or summons was filed and issued in Abuja, Federal High Court Division and addressed to defendants at Abuja. In such a situation, the appellant has no obligation to endorse his writ meant to be served within the same Federal Capital Territory. i.e Abuja. Therefore the appellant cannot be punished for an act over which he has no control. To strike out the originating Summons for want of endorsement seem to overlook the facts of the case. In effect I am in agreement with counsel for the appellant that the writ that is the originating Summons filed and issued in Abuja, in the circumstances require no further endorsement of the writ for service in Abuja. Same should not be reason to strike out or dismiss the suit, the same having duly been issued at Federal High Court Abuja for service in Abuja, Federal Capital Territory. See: Madukolu v. Nkemdelim (1962) 1 SCNLR 342; or (1962) All NLR 587; Attorney General of Federation v. Guardian Newspaper (1999) 9 NWLR (Pt. 618) 187 or (1999) 5 SC (Pt. 111) 99 where held that:
?The competence of a Court in the exercise of its jurisdiction is determined if it is (a) properly constituted with respect to the number

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and qualification of its membership (b) the subject-matter of the action is within its jurisdiction (c) the action is initiated by due process of the law an (d) any condition to the exercise of its jurisdiction has been fulfilled.?
It is apparent that the Summons was not endorsed as prescribed under Section 97 of the Sheriffs and Civil Process Act, but this failure to have the writ endorsed does not invalidate the summons meant for service within Abuja Federal Capital Territory where it was issued. Consequently Issue1 is resolved in favour of the appellant.

ISSUE No. 2
The resolution of issue No. 1 on the question of failure of compliance by the appellant with mandatory provisions of the Act, should dispose of this appeal in its entirety without having to consider other related issues namely issues 2, 3 and 4 but for the fact that this Court, being an intermediate appellate Court, there is the need to consider and rule on those issues albeit briefly: See: Osunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Federal Ministry of Health v. Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt. 1145) 193; Okonjode &Ors. v. Njokanmo de & 2 Ors. (1999)

49

12 SCNJ. 259; Ifeanyi Chuku (Osandu) Co Ltd v. Soleh Boneh (NIg) Ltd (200) 5 NWLR (Pt.. 656) 332; (200) 3 SCNJ, 18
Issue No. 2 addresses the question: Whether in the determination of locus standi or cause of action it is permissible to consider evidence that is extrinsic or extraneous to the originating process?
Issue No. 3 Whether in the circumstances of the default of defence/response to the Originating process filed by the Appellant he is entitled to the Judgment of the Lower Court in terms of the indorsed relieves? (sic)
Issue No. 4 is Whether in the determination of the application of the 1st and 2nd respondents, the Lower Court glossed over the fundamental issues, decisive evidence and crucial legal submission?

I will now give the summary of submissions made by counsel on those issues thus:
Learned counsel for the appellant in arguing issue 2 at pages 11-15 of his brief of argument recalled the facts giving rise to this case on appeal and went ahead to submit that the Court below was in error to hold that the appellant lacks locus standi to institute the Suit and his case did not disclose any cause of action.

?First, on the

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issue of locus standi he argued that the Court below applied the principle of public law in the determination of the question of locus standi here private law applies. It’s his contention that in private law, the question of locus standi is merged with the issue of cause of action and he relied on Owodunni v. Registered Trustees (200) 6 SCNJ 399, 417 lines 26 ? 27.
Second, as to what a cause of action is and how it is determined he referred us to Akiba v. Oduntan (2000) 7 SC NJ 189, 207; Dantata v. Mohammed (200) 5 SCNJ 17. 26;Yususf v. Akindipe (2000) 5 SCNJ 128, 137; Abubaka v. Babaji Oil (2007) 2 SCNJ 170, 194 ? 195.

He argued that to determine the cause of action the materials to look out for are the writ of summons and the averments in the Statement of claim to ascertain the actual grouse of the party and the remedy or relief he is seeking. In reference to Yusuf v. Akindipe (Supra) he argued that in the definition of a reasonable cause of action extrinsic evidence or material in form of affidavit evidence is not permissible but the claims of the claimant or plaintiff only to ascertain the jurisdiction of the Court. He argued

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finally on this point that the Court below was wrong to have ignored the claims and the reliefs sought by the appellant. He urged on the Court to resolve issue 2 in favour of the appellant.

In response to Issue No. 2, learned counsel for the respondent took his time to restate the meaning and definition of the terms; locus standi and cause of action and to submit that it is the wrongful act on the part of the defendant which gives the plaintiff the cause of complaint. On this he relied on Attorney General of Bayelsa v. Attorney General of Rivers (2006) 12 SCM (Pt. 2) 1 38, 39; Abubakar v. Babaji Oil (2007) 3 SCM 37, 63. He argued that until there is an existent legal right and in frigent of same, a cause of action cannot arise, in reference to Osigwe v. PSPLS management Consortium Ltd. (2009) All FWLR (Pt. 470) 622; Shell Petroleum Development 7 Anor. v. V.X.M. (2006) 14 SCM (Pt. 2) at 348-385. As to locus standi he argued that a person has standing where the reliefs sought would confer on him some benefits; that the person must show he has some cognizable right to protect in initiating the suit. He relied on Owudunni v. Regd. Trustees (2000) FWLR (Pt. 9)

52

1455, 1480;Falomo v. Kichina (2005) All FWLR (Pt. 284) 397, 406. By and large, it is argued that the case of the appellant has not disclosed any cause of action and himself as the appellant lacks locus standi. He urged the Court to resolve this issue in favour of the respondent.

In relation to Issue 3 counsel for the appellant cited Order 13 Rule 35 (5) of the Federal High Court Rules to submit that whether for the Respondents to file their counter-affidavit in opposition to the originating summons they chose to raise an objection. It is argued that by the failure to contest the Originating Summons, they had admitted the facts contained in the affidavit in support of the Originating summons and the Court below ought to have entered Judgment for the appellant. He relied on Bakare v. Ajose Adeojon (2014) 15 CNJ (Pt. 1) 202, 232-233; Onatohokan v. Wema Bank (2011) 5 SCNJ 266, 282 to further submit that where a defendant chose to file an objection the locus standi of the plaintiff without filing a defence alleges that the plaintiff has not disclosed reasonable cause of action, he is deemed to have admitted the facts in the Originating Process or Statement of

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claim. In that case it is for the Court to enter Judgment over the originating Process in favour of plaintiff. He argued that the Court below abdicated its responsibility and therefore call on this Court in exercise of the powers under Section 15 of Court of Appeal Act to evaluate evidence of the material before the Court and enter Judgment for the appellant accordingly.

In response to this issue counsel for the respondent argue that the call on this Court to enter Judgment for the appellant based on the originating Summons was premature so far has hearing over the same was yet to be taken citing Hashidu v. Goje (2004) All FWLR (Pt. 228) 662-695

Counsel for the appellant arguing issue No. 4 has submitted that the Court below ought to have entered Judgment for the appellant on the Originating Summons so far as there was no counter-affidavit to controvert facts deposed therein the implication of which is that the averments thereto were admitted, rather the Court below glossed over issues including the issue of evaluating the affidavit evidence attached to the Originating Summons and documentary Exhibits annexed to the affidavit, among other issues.<br< p=””

</br<

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In response to those submission on Issue No. 4 it was argued that the objection raised by the respondents was akin to a challenge on the jurisdiction of Court to entertain the case and as such issue relating to jurisdiction of Court can be raised any time without having to file a defence or a counter-affidavit. He relied on several cases including Elebanyo v. Dawodu (2006) All FWLR (Pt. 328) 604; Ebge v. Alhaji (1990) 1 NWLR (Pt. 128) 546; Onibudo v. Akibu (1982) All FWLR 207;Odire v. Obor (1974) N SCC 103, 107.
OPINION
The terms ?locus standi? and ?cause of action? have become familiar legal jargons in our jurisprudence owing to their application and usage and our law books are now replete with decisions of Courts on these area of our law.
Simply put locus standi denotes the legal capacity to institute proceedings in a Court of law. It is used interchangeably with terms like ?standi? or ?title to sue? thus in private law the plaintiff is said to have standing in a matter only if he has a special legal right or alternately if he has sufficient or special interest in the performance of the duty

55

sought to be enforced or where his interest is adversely affected. What constitute a legal right, sufficient or special interest or interest adversely affected depends on the facts of each case. See: Senator Adesanya  v. President, Federal Republic of Nigeria (1981) 5 SC 69 or (1981) All NLR 1. See further definition in Akinfolarin v. Akinnola (1994) 4 SCNJ (pt. 1) 30, 61; Omodunni  v. Regd. Trustees (2000) 6 SCNJ 399, 417. It follows therefore that when the locus standi of plaintiff is challenged it is the originating process that the Court need to look at to discover the standing of the plaintiff and not any other document. The statement of claim or any other originating process is the cynosure of the exercise. See. Disu v. Ajilomuna (2007) 7 SC (Pt. 11) 1; Osun State Government v. Sestisione H. Nigerian Ltd (2012) LPELR – &936 (CA).A cause of action on the other hand, is defined to mean the facts which when proved will entitle a plaintiff to a remedy against a defendant. It is the state of facts which gives a person the right to judicial reliefs see; Ojukwu v. Yar?adua (2009) All FWLR (Pt. 482) 1065, 1119-120 Abubakar v. Babaji Oil(2007) All FWLR

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(Pt. 362) 1855, 1887-1888; NPA Plc. v. Lotus Plastic ltd. (2006) All FWLR (Pt. 297) 1023. 1038. Like the Issue of locus standi, cause of action can be ascertained by reference to the Statement of claim or any other process originating the action. See: Attorney General Kwara State v. National Judicial Council (2010) LPELR ? 5009 CA).

On reason which necessitate the objection being taken at the Court below is an account of standing. It is alleged that the plaintiff (appellant has no locus standing to institute the action). It is also alleged that the suit does not disclose reasonable cause of action among others. These facts were deposed to in the affidavit in support of the objection taken at the trial Court. It is clear in the ruling delivered by it at pages 431-457 particularly pages 455-457 heavily relied on what it described as uncontroverted affidavit evidence of the respondents to uphold the objection and thus the suit was struck out.

In the determination of the question whether or not plaintiff?s case disclose a cause of action or the plaintiff has locus standi, the approach which the Courts of the land have approved is to look

57

at the Statement of claim or any other Originating Process so as to ascertain those claims. It is thus a wrong approach when the Court below resorted to and relied on the affidavit evidence in support of the Motion on Notice raising objection to strike out the Suit for want of standing to discover whether the suit disclosed any reasonable cause of action or whether the plaintiff has locus standi.

The appellant, by the originating Summons filed by him said he partook or participated in the exercise leading to the Primary Elections conducted by the 2nd respondent on the 11th December, 2014 for the purpose of nominating a candidate to represent Taraba South Senatorial District at the Senate. He said he is a card carrying member of the Peoples Democratic Party and an aspirant in the said Primary Election. He annexed Exhibits A, B and C to the Originating Summons as documents evidencing his membership of the party, evidence for payment of nomination and expression of Interest Form to contest the primaries (Exhibits B and C). So what greater evidence is there to show as would accord the Appellant the locus standi in this case on appeal? He is an aspirant.<br< p=””

</br<

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Section 87 (9) of the Electoral Act, 2010 provides thus:
?87 (9) Notwithstanding the provisions of this act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress?
It is my view that the appellant has brought himself within the provisions of the Electoral Act as referred to above to confer on him the necessary locus standi. See: Emenike v. PDP (2012) LPELR-7802 (SC) or (2012) All FWLR (Pt. 1640) 1261. In Ardo v. Nyako (2014) All FWL (Pt. 744) 130, 160 the apex Court held:
?Under the said Section 87 (9), an aspirant who can invoke the jurisdiction of the Court and as has been held in a long line of cases from this Court, is the one who complains that any of the provisions of the Electoral Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election?

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See further decision in Uwazurike v. Nwachukwu (2013) All FWLR (Pt. 860) 1206 1225-1227; Adebayo v. PDP (2013) All FWLR (Pt. 695) 204, 230.
The question earmarked for determination in the Originating Summons is to this effect:
?1. Whether the 2nd defendant for the purpose of selecting its candidates for Senate Primary Election for Taraba South Senatorial District in Taraba State for the 2015 general Elections can adopt a procedure other than that provided in 2nd defendant?s Electoral Guideline for Primary Elections 2014, the 2nd defendant?s Constitution 2012 (as amended) and the Electoral Act, 2010 (as amended).?
By virtue of the appellant being an aspirant in the Primary Elections and the complaints laid by him relative to that election, the (appellant) has the required locus standi, to institute the action as he did. Consequently, the Court below was in error when he struck out the Suit on this account.

Issues 3 and 4 are interwoven. Issue No. 3 in particular seek to invoke the powers of this Court under Section 15 of the Court of Appeal Act so that issues presented in the Originating summons are thrashed out on the

60

merit at this level based on the materials available and are before this Court. This call I think is premature and this Court cannot at this stage consider that request. The question before this Court on appeal arose from interlocutory ruling at the Court below. The merits of that case have not been considered by that Court. To urge on this Court to hear the case on the merit is to usurp the functions of the trial Court and we reject this call.

On the whole therefore this appeal succeeds in part and same is allowed. The ruling delivered at the Court below on 17th September, 2015 in Suit No. FHC/TAR/SC/5/2015, Motion No. FHC/TAR/M/24/2015 is hereby set aside. Consequently, this case is remitted to the Chief Judge of the Federal High Court who shall assign it to a Judge other than Justice D. U. Okorowo for hearing on the merit.
Ordered accordingly.

---

Other Citations: (2016)LCN/8824(CA)

Mohammed Nyavo V. Benjamin Zading (2016)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

 This is an Appeal against the Judgment of the Taraba State High Court of Justice sitting in Jalingo, in suit number TRSJ/60/2013, delivered on the 31st July, 2015.

The Appellant herein (as Plaintiff before the trial Court) took out a Writ of Summons jointly with one Shavo S. Mago, against the Respondent claiming as follows as per their joint Statement of Claim dated and filed on 16th May, 2014:
1. A DECLARATION that the Plaintiffs are the rightful owners and holders of all the titles and interest over the land lying and situate at Danpudi in Lau bounding to the North and west with Koppo Mountain and to the South with the main road to Zing and to the east with Jarang Stream and a large portion of the family land of the Plaintiffs and the larger portion of the Plaintiffs family land of the Plaintiffs and the larger portion of the Plaintiffs family.
2. AN ORDER of perpetual injunction restraining the defendant, his privies, heirs, agents/or whosoever claiming through him from trespassing in to the land or doing anything prejudicial to the interest of the

1

Plaintiffs on the said land.
3. AN ORDER of this Honourable Court compiling the defendant to hand possession of the said land.
4. The cost of litigation.

The Respondent did not file any defence to the claim of the Appellant. The case of the Appellant, being declaratory in nature, he adduced evidence through two witnesses and closed his case. The Appellant?s Counsel later addressed the Court, and on 31st day of July, 2015, the trial Court in its Judgment, dismissed the Appellant?s claim. It is against this Judgment that the Appellant has now appealed on seven grounds vide his Notice of Appeal dated 22nd September, 2015 and filed on the 23rd September, 2015.

A succinct statement of the facts leading to the Appeal is that, a dispute arose between the Appellant and the Respondent over a parcel of land lying and situate at Gada Village in Lau Local Government Area of Taraba State. The Appellant contended that he inherited the disputed land from his mother who also acquired same via a gift from her brother, Selleng who, in turn had deforested and founded the land before his demise. Selleng died without a child and so the gift to his

2

sister, the Appellant?s mother. The Appellant and his younger brother, Shavo S. Mago, also now deceased, filed the suit against the Respondent before the trial Court. After the demise of the 2nd Plaintiff, the Appellant continued with the case to conclusion.

The Writ of Summons was filed on 26th June 2013 and same was served on the Respondent. The Respondent did not put up a defense against the claim despite several adjournments granted at his instance to enable him file a Statement of Defence and to join issues with the Appellant. The Appellant thereafter adduced evidence in proof of his claim through two witnesses who were duly cross-examined by the Respondent. At the end of the trial, the Appellant?s Counsel filed and adopted his Written Address, after which the trial Court entered Judgment dismissing the case of the Appellant.

When the Appeal was called up for hearing on 19th May, 2016, L.J. Ezekiel, (Mrs.), learned Counsel for the Respondent, with the leave of Court, argued the Respondent?s Notice of preliminary objection to the hearing of the Appeal filed on 29-02-16. She adopted the arguments on the objections at pages 3-5 of

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the Respondent?s Brief of argument also filed on 29-02-16 in urging the Court to strike out the Notice of Appeal on the ground of incompetence.
Martin Milkman Esq. appearing with P.E. Owachu Esq., in response to the submissions on the preliminary objection, adopted his arguments at pages 1-7 of the Appellant?s Reply Brief of argument filed on 18-04-16 in answer thereto, and urged the Court to dismiss the objection for lacking in merit. In respect of the main Appeal, Mr. Milkman adopted and relied on his submissions as contained in the Appellant?s Brief of argument filed on 23-12-15 and pages 7-14 of the Appellant?s Reply Brief filed on 18-04-16, in urging the Court to allow the Appeal, set aside the Judgment of the Lower Court and enter Judgment for the Appellant in terms of the reliefs claimed before that Court.
In response, Mrs. Ezekiel, learned Counsel for the Respondent, adopted her submissions in the Respondent?s Brief of argument in urging the Court to dismiss the Appeal.
Before going into the merits or otherwise of the Appeal, it is expedient to address the issues raised in the Notice of preliminary

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objection since they determination may have a bearing on the jurisdiction of the Court to entertain the Appeal.
RULING ON PRELIMINARY OBJECTION
The Notice of Preliminary objection filed by the Respondent on 29-02-2016 seeks an order of Court striking out or dismissing the Notice of Appeal in this Appeal on the following grounds:
1. ?The Notice of Appeal filed by the Appellant on the 23rd day of September 2015 in this Appeal No. CA/YL/124/15 is incompetent and liable to be struck out.
2. The Notice of Appeal filed by the Appellant do not relate to any suit filed at the trial High Court.?

In his Brief of argument, the Respondent submits that the Notice of Appeal filed by the Appellant in this Appeal is incompetent for violating the mandatory provisions of Order 6 Rule 2(1) Court of Appeal Rules, 2011. He contends that the Notice of Appeal filed on 23rd September, 2015 failed to comply with this mandatory provision of the rules of this Court. He argues that the word ?shall? when used in a statute denotes a mandatory act and admits of no discretion. He relies on National Assembly V CCI Co. Limited (2008) 5 NWLR (Pt.

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1081) 519 at 540, paras G-D. Counsel submits that when the law prescribes the mode in which a thing is to be done, it is only that method that must be followed, and any act to the contrary is a nullity. He relies onOrakul Resources Limited V NCC (2007) 16 NWLR (Pt. 1060) 270 at 302, paras D-G, 303 paras C-G.

Secondly, Counsel submits that the Notice of Appeal filed by the Appellant does not relate to any suit filed at the Registry of the High Court of Justice of Taraba State. The Writ of Summons and Statement of Claim filed at the Registry of the trial High Court are at pages 1-7 of the printed Record. The registered suit number as contained on the Writ and Statement of claim is: No. TRSJ/60/2013. The Notice of Appeal (at on pages 142-149 of the Record) however relates to suit no. TRSJ/160/2013. He submits that the Notice of Appeal, having no bearing with any suit filed at the trial High Court, is incompetent and liable to be strike out and he invites the Court to so do.
In response to the submissions in respect of the objection, learned Counsel for the Appellant submits that the import of Order 6 Rule 2(1) of the Court of Appeal Rules, 2011, is

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that the names of all the parties affected by the Appeal must be indicated on the Notice of Appeal. The Rules do not mandatorily require that such information must be contained in a particular style on the Notice of Appeal. He relies on Amininaowuka V Derego (2011) LPELR-9099(CA) 1 at 10, paras A-G.

Counsel argues that the germane question to be asked is: has the Notice of Appeal in this Appeal complied with the provision of Order 6 Rule 2(1) of the Rules of Court? In other words, who are the parties affected by this Appeal? Are their names and addresses contained in the Notice of Appeal? A perusal of the Judgment of the trial Court appealed against contained at page 120 of the Record of Proceedings reveals that the parties at the Lower Court were:
MOHAMMED NYAVO – PLAINTIFF
And
BENJAMIN ZADING – DEFENDANT

The parties as reflected on the Notice of Appeal (at page 142 of the Record of Appeal) are:
MOHAMMED NYAVO – APPELLANT
VS
BENJAMIN ZADING – RESPONDENT

?Pages 148 and 149 of the Record contain the addresses of the parties affected by this Appeal. Counsel therefore submits that the failure of the Appellant?s

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Counsel to write out the names of the parties affected by the Appeal and their addresses in a distinct sub-head or a particular manner cannot invalidate a valid Notice of Appeal or render same incompetent to rob this Court of jurisdiction to hear and determine the Appeal on the merit.
Assuming without conceding that failure to mention the names and addresses of the affected parties under a distinct sub-heading amounts to non-compliance with Order 6 Rule 2(1) of the Rules, Counsel submits that it is a mere irregularity. He relies on Deen Mark Construction Company Ltd V Abiola (2001) LPELR 6997(CA) I at 30-31, paras A-A.

In response to the second arm of the preliminary objection that the Notice of Appeal filed by the Appellant does not relate to any suit, Counsel submits that the said Suit No. TRSJ/160/13 instead of Suit No. TRSJ/60/13 reflected on the Notice of Appeal was a mistake occasioned by the Registry of the Lower Court. A perusal of the Judgment appealed against contained at page 120 of the Record of Proceedings, which was made available to the Appellant?s Counsel has Suit No. TRSJ/160/13. He argues that the mistake of the Registry

8

cannot be visited on a litigant. Courts are not in the habit of punishing or penalizing a party because of the error committed by the Counsel the Judge or even Court officials. He relies on Fidelity Bank Plc V Monye (2012) ALL FWLR (Pt. 631) 1412 at 1417-1418. More so that this Appeal is against the Judgment of the Lower Court and the Notice of Appeal is attacking the said Judgment. It cannot therefore be right to submit that the Notice of Appeal which relates to the Judgment of Lower Court is incompetent simply because Counsel inadvertently followed the mistake manifestly contained on the Judgment with respect to the suit number. Counsel submits further that, having regard to the provision of Order 6 of the Court of Appeal Rules, 2011 which stipulates the mandatory requirements of a valid Notice of appeal, the insertion of the Suit number on the Notice of Appeal is not a mandatory requirement of a valid Notice of Appeal.

?On the whole, Counsel submits that this objection is an attempt to take this Court back to the days of technical justice. More so that Counsel for the Respondent did not show how the Respondent was misled or how the wrong suit number

9

and failure to mention the names and addresses of the parties affected by this Appeal in a separate sub-head will occasion a miscarriage of justice. He urged the Court to dismiss the preliminary objection for lacking in merit.
Findings:
It is without question that the initiating process for an Appeal before an appellate Court is the Notice of Appeal. The Notice of Appeal is the foundation and substratum of every Appeal. Any defect thereto will render the whole appeal incompetent and the appellate Court will lack the jurisdiction to entertain it. Thus, once a Notice of Appeal is defective and therefore incompetent, there would be nothing left for the Court to consider. It is the root of the appeal and robs the Court of the jurisdiction to hear the appeal. See: FBN Plc V Maiwada (2012) LPELR-9713(SC); Uwazurike V AG Federation (2007) 8 NWLR (Pt. 1035) 11; AG Federation V Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187. That is exactly why, in FBN Plc V TSA Industries Ltd (2010) LPELR-1283(SC) 1 at 49, Adekeye, JSC, stated as follows:
?A notice of appeal in the process of appeal is a very important document, as it forms the foundation of

10

the appeal. If it is defective, the appellate court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed in the Lower Court is a question which touches on the jurisdiction of the appellate court. If no proper notice has been filed, then there is no appeal for the court to entertain. See Anadi V Okoti (1972) 7 SC 57; CBN V Okojie (2004) 10 NWLR (Pt. 882) 488; Olanrewaju V BON Ltd (1994) 8 NWLR (Pt. 364) 622.?
This Court has also spoken out very strongly on the issue of defective Notices of Appeal and the consequence of such. Thus, to validly invoke the jurisdiction of the Court, the Appellant must show that the appeal arose from the suit before the trial Court. The only way to do this is to state the particulars of the decision appealed against, etc. This would be consistent with the Civil Form 3 in the First Schedule to the Court of Appeal Rules, 2007.
The Respondent?s first ground of objection in the Notice of preliminary objection reads as follows:
?1. The Notice of Appeal filed by the Appellant on the 23rd day of September, 2015 in this Appeal No.

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CAYL/124/15 is incompetent and liable to be struck out.?

It is hinged on Order 6 Rule 2 of the Court of Appeal Rules, 2011. The Respondent?s contention is that the failure to reflect the names and addresses of the parties to the appeal in the Notice of Appeal renders it incompetent. I will quickly say that this ground of objection is baseless because the failure to state the names and addresses of all the parties directly affected by the Appeal in the Notice of Appeal has been serially held to be a mere irregularity which cannot affect the hearing of an appeal on the merit. See: Dyeris V Mobil Oil Nig. Plc (2009) LPELR-8914(CA) 1 at 11; Deen Mark Construction Co. Ltd V Abiola (2002) 3 NWLR (Pt. 754) 418; & Oruobu V Anekwe (1997) 5 NWLR (Pt. 506) 618, to mention a few.

The provisions of the Court of Appeal Rules, 2011 dealing with the Notice and Grounds of Civil Appeals are contained on Part 2 of the said Rules. Order 6 Rule 2(1) under the Part 2 provides thus:
?All appeals shall be by way of re-hearing and shall be brought by notice (hereinafter called ?the notice of appeal?) to be filed in the registry of the

12

Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.? (Emphasis supplied)

It would appear indisputable from the underlined portion of the provision of the above rule that a Notice of Appeal is expected to contain the names and addresses of the parties directly affected by the Appeal; as well as the addresses for service of the said parties. The submissions of the Appellant in relation to the Notice of Appeal have been extensively reviewed, and it is evident that he expressly admits that there has been non-compliance with this rule in that no such names and addresses have been supplied on the Notice of Appeal as required. The question therefore is: whether the Notice of Appeal amounts to a nullity for this reason, as argued by the

13

Respondent, particularly in view of the word ?shall? used in relation to the endorsement of names and addresses for service?
The law, no doubt, is that rules of court should be obeyed. However this Court has consistently held to the effect that, as a general rule, non-compliance with the rules of court (including its own Rules) is primarily an irregularity. See Enakhimion V Edo Transport Services (2006) ALL FWLR (Pt. 334) 1882 at 1904-1905, where this Court held to the effect that non-compliance with the rules of Court does not prima facie invalidate the proceedings, unless no reasons are adduced upon which the Court can overlook or waive such non-compliance. In Uko V Ekpengyong (2006) ALL FWLR (Pt. 324) 1927 at 1946, again this Court held to the effect that non-compliance with the Rules of Court would not be a ground for nullifying a proceeding unless such non-compliance amounts to a denial of justice.
Rules of Court, it must always be borne in mind, are actually rules of procedure made for the convenient and orderly hearing of cases. They are meant to aid the cause of justice and not to defeat it. For this reason, Courts have been

14

consistently admonished not to be slavish to their rules and therefore not to read the rules in the absolute, without recourse to the justice of the case. In other words, a most liberal approach is to be given to the interpretation of Rules of Court. See also Odu V Fawehinmi (Rtd) (2006) ALL FWLR (Pt. 301) 1848 at 1866. Indeed in this case, this Court, in order to bring out clearly the effect of non-compliance with the Rules of Court in any given situation, stated the difference between a defect in the competence of an action and a defect in procedure to be that: ?a defect in competence of an action spells absence of jurisdiction,? while ?a defect in procedure shows a defect in the process of adjudication and not fatal to jurisdiction.?

It is without a doubt that a Notice of Appeal can properly be said to be the originating process upon which an appeal is founded. This is because it is the process by which a party aggrieved by the decision of a Court signifies his dissatisfaction. See Adelekan V Ekuline NJ (2000) ALL FWLR (Pt. 321) 1213 at 1222. The provision of Order 6 Rule 2(1) of the Court of Appeal Rules, 2011 relating to the

15

endorsement on the Notice of Appeal of the parties directly affected by the appeal and the addresses for service on the parties, in my respectful view, is simply to ensure service of the said Notice of Appeal on the parties in the Appeal. An Appellant is equally enjoined by the provision of the Rule under consideration to provide not only the names and addresses of all parties directly affected by the Appeal, but to also file sufficient copies of the Notice of Appeal for service on such parties. Courts, it is to be appreciated, are expected to interpret the provision of legislation (be it statute or subsidiary, which Rules of Court are), sensibly, and not make nonsense out of them. Against this backdrop, It is my respectful view that the requirement for the endorsement of names and addresses of parties affected by the Appeal on the Notice of Appeal, while important, is simply to enable the appropriate officer charged with the duty of serving the process know at a glance who the parties are and where service is to be effected, thereby eliminating the need for him to wade through the whole of the Notice of Appeal to determine this. The use of the word

16

?shall? in relation to these endorsements therefore do not connote ?mandatoriness? as argued by the Respondents. It is directory only, and the non-endorsement of the names and addresses of the parties for service of the court processes on the Notice of Appeal therefore, while important, cannot without more, render an otherwise valid Notice of Appeal, invalid. See Bob V Akpan (2009) LPELR-8519(CA) 1 at 47-51. This must be the reason for the finding of this Court by Tobi, JCA (as he then was, of blessed memory), as far back as the year 2000 in Agu V NICON (2000) 11 NWLR (Pt. 677) 187 at 194, where he held:
?I hold that the failure on the part of the applicant to state in the Notice of Appeal the names and addresses of all parties directly affected by the appeal is an irregularity which will not affect the hearing of the merits of the appeal.?
Yet again, in Deen Mark Construction Company Ltd V Abiola (2001) LPELR 6997(CA) I at 30-31, paras A-A, Okunola JCA, held thus:
?The fact that the word ?shall? as used in the said Order 3 Rule 2(1) of the Court of Appeal Rules has been interpreted in other

17

legislations to mean ?mandatory? notwithstanding the case of Amata V Omofuma (1997) 2 NWLR (Pt. 485) 93; Ajayi V. Military Administrator, Ondo State, (1997) 5 NWLR (Pt. 504) 237; Okpala V DGNC for M.M. (1996) 4 NWLR (Pt. 444) 585 etc, this Court had in two different cases made a return. Thus, in Oruobu V Anekwe (1997) 5 NWLR (Pt. 506) 618 the Court, per Onalaja, JCA, relied on the decision in the case of Surakatu V Nigerian Hosing Dev. Society Ltd. (1984) 4 SC 26 and Odi V Osafile (1987) 2 NWLR (Pt. 57) 510 to hold that the mistake is an irregularity which should not affect the hearing of the appeal on the merit. See also the case of Agu V Nicon Ins. Plc (2000) 11 NWLR (Pt. 677) 187 at 194 per Tobi, JCA, where faced with a notice of appeal that failed to comply with the said Order 3 Rule 2(1) held inter alia thus:
?I hold that the failure on the part of the applicant to state in the notice of appeal the names and addresses of all parties directly affected by the appeal is an irregularity which will not affect the hearing of the merit of the appeal. From the foregoing authorities, it is evidence that the argument of the

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learned SAN against an issue that has been pronounced upon as a mere irregularity cannot affect the hearing of this appeal on merit and I so hold.? (Emphasis supplied)

?In the instant Appeal, the names of the parties are clearly spelt out on the face of the Notice, while the addresses for service of the process have been stated at the end of the process. The objection of the Respondent that the Notice of Appeal filed by the Appellant is a nullity for failure to separately endorse the names and addresses of the parties, in my respectful view, rings hollow against the backdrop that the names are ad idem with those already stated in the Notice, and the addresses for service are also set out at the end of the Notice of Appeal. The hollowness of the objection becomes even more pronounced when it is viewed against the purpose which the provision is to serve vis–vis the lack of any complaint that the Notice of Appeal was not served. Thus, I am of the view that the failure by the Appellant to insert an endorsement separately bearing details of the names and addresses of the parties to the Appeal in the Notice of Appeal, is an irregularity that

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ordinarily, cannot and will not affect the hearing of the Appeal on the merit, and I so hold. The Respondent?s first ground of objection is therefore overruled.

?The second ground of objection in the Notice of preliminary objection is:
?2. The Notice of Appeal filed by the Appellant do not relate to any suit filed at the trial High Court.?
The Notice of Appeal dated 22nd September, 2015 and filed on 23rd September, 2015, (at un-numbered pages at the back of the printed Record of Appeal) in its first paragraph reads thus:
?TAKE NOTICE that the Appellant, Mohammed Nyavo, who was the Plaintiff in Suit No: TRSJ/160/13, being dissatisfied with the decision of the Taraba State High Court sitting in Jalingo, contained in the Judgment dated the 31st day of July, 2015, Coram: Hon. Justice Silas Haruna, do hereby appeal to the Court of Appeal on the grounds and particulars set out in paragraph 3, and is seeking the reliefs set out in paragraph 4.? (Emphasis supplied)

?From the Writ of summons and Statement of Claim filed by the Appellant himself (as Plaintiff before the trial Court), at pages 1-7 of the Record of

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Appeal, the suit was registered at the Registry of the High Court of Justice, Taraba State as ?suit number TRSJ/60/13?. This suit number is reflected on all processes filed in respect of the case at the Lower Court, and is also reflected on the Record of proceedings transferred to this Court, (which constitutes the Record of Appeal), on 26th November, 2015. Just a cursory comparison of the Record of Appeal with the Notice of Appeal, reveals the obvious incongruity between the two. Clearly, there is nothing in the Notice of Appeal which would serve to invoke the jurisdiction of this Court to entertain the Appeal based on this Notice. The suit referred to in the Notice of Appeal has absolutely no nexus with the Record of Appeal before the Court.
While noting however, as gleefully pointed out by learned Counsel for the Appellant, that the Judgment of the Lower Court (at pages 120-140 of the Record) bears the same suit number as that in the defective Notice of Appeal, i.e. suit number ?TRSJ/160/13? instead of ?TRSJ/60/13,? it goes without saying that, in addition to the defect on the Notice of Appeal, the Record of

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proceedings transmitted to this Court, is also both incomplete and incompetent, as it does not contain a valid Judgment in respect of suit number TRSJ/60/2013, from which the Judgment is purported to emanate. Without any correction effected to the Judgment of the Lower Court itself by the learned trial Judge either suo motu or by a motion under the hand of one of the parties under the ?Slip rule?, the Judgment itself is also a stranger to the proceedings in respect of the Record of Appeal transmitted to this Court.
There is no doubt that an error or slip in the Judgment of a Court can be corrected by that Court. Most rules of Court make such appropriate provisions to enable the Judges correct their Judgments. Judges are human after all and are subject to also err just like any other person. In Akpan V Umoh (1999) 7 SCNJ 154, the Supreme Court suo motu corrected a slip made by a Lower Court in referring to a survey plan of a disputed plan. A Judge can amend his Judgment, whether enrolled or not, where there is a clerical slip or where the order does not express the meaning of the Judgment or the order intended by the Judge. This is what is

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known as the ?Slip Rule? principle. The correction of such a slip by a party to the suit can only be made via a motion on notice. See: Makanjuola V Balogun (1989) 3 NWLR (Pt. 108) 192; NICON V Pie Co. Ltd (1990) 1 NWLR (Pt. 129) 697; Bakare V Apena (1986) 4 NWLR (Pt. 33) 1. See Nwankudu V Ibeto (2010) LPELR-4391(CA) 1 at 32; Olurotimi V Ige (1993) 8 NWLR (Pt. 311) 257; Koiki V FBN (1994) 8 NWLR (Pt. 35) 665. This is because there should be no ex parte communication between a party and the Court.
In this case, the Appellant has actually conceded to the defect in the Notice of Appeal. However curiously, he blames it on the Judgment of the learned trial Judge, which he says misled him, and therefore, in his view, he should not be blamed/sanctioned for it. Much as Counsel?s passing of the buck, in the way he has sought to do instead, of ?man-ning? up to it, leaves a sour taste in the mouth, the problem is not so much the slip in the Judgment in stating the correct registered suit number of the case at the Court below. The problem is ignoring or overlooking the slip in the Judgment of the Court and failing to embark on initiating

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the proper procedure to have the slip corrected before activating the Appeal. Instead of going through that route, Counsel chose to compound the obvious error/slip on the face of the Judgment by filing a Notice of Appeal and deliberately choosing to base it on the wrong suit number, which suit number, as aforesaid, has no bearing to the suit filed by the Plaintiff at the Lower Court, as well as the subsequent proceedings thereon. This was his choice, a risk, a gamble and he has lost!
I am of the firm view that the slip in the Judgment (as pointed out by Counsel for the Appellant himself) and, by the same token, in the Notice of Appeal cannot be overlooked. The Judgment can only be corrected by the Lower Court itself upon a motion on notice by the affected party. This was not done in this case, and it is only in the highest Court in the hierarchy of Courts that amendments to orders of a Lower Court may be made suo motu. Filing an Appeal based on this evident error has not helped the Appellant, but only made a bad case, worse. It is well settled that a Court is able to correct a misnomer or mis-description under the ?Slip Rule?. In the present

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case, the Taraba State High Court is a Court of competent jurisdiction with definite powers, either under the Slip rule or under the inherent jurisdiction of the Court, to rectify or correct its judgments or orders within the framework of the law concerning the rectification or correction of Court judgments or orders. See Osho V Ape (1998) 8 NWLR (Pt. 562) 492; Afolabi V Adekunle (1993) 8 SC 98.
The Notice of Appeal contains the subject matter of that appeal. It is only when a proper Notice of Appeal has been filed that an appeal is said to have commenced. No appeal can stand without a proper Notice of Appeal to sustain it. Where a Notice of Appeal contains an error, or is fundamentally defective or deficient, it becomes incompetent and any appeal founded on an incompetent Notice is invalid. It renders any proceeding founded on it equally invalid, null and void. Thus, an appellate court has inherent power to strike it out for being incompetent as the issue touches on the competence of the Appeal and also the jurisdiction of the Court to entertain it. See Obidoa V Marchie (2010) LPELR-4668(CA) 1 at 16; Chairman, Oyo State LG Trad. Council V Adegboye

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(2010) LPELR-3903(CA) 1 at 14; LASTMA V Esezoobo (2010) LPELR-4420 (CA) 1 at 4; Cornelius V Ezenwa (1996) LPELR-1632(SC) 1 at 40; (1996) 4 NWLR (Pt. 443) 391; Tukur V Govt. of Gongola State (1988) 1 NWLR (Pt. 68) 339.
I feel the need to join the Supreme Court in deprecating the increasing habit of some Counsel who show very little care in the way and manner processes relating to Appeals in Court are prepared and filed. Some Counsel hardly take sufficient care in drawing up processes relating to Appeals from the decisions of Lower Courts. The Notice of Appeal is a very important document because it is the foundation of the Appeal. If it is defective, the Court of Appeal has inherent power to strike it out on the ground that it is incompetent, and in appropriate cases, it will not hesitate to do so. See Anadi V Okoli (1977) LPELR-479-(SC) 1 at 3-4.
I am of the considered view that the defect in this regard on the face of the Notice of Appeal is a fundamental defect that goes to the very root of the entire process. It is not an irregularity that can be cured by any amendment. It has failed to invoke the jurisdiction of the Court by virtue of this

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feature on the Judgment, in conjunction with the Notice of Appeal. Where the jurisdiction of the Court has not been properly invoked, the Court would have no jurisdiction to entertain an Appeal based on such an incompetent process. See Madukolu V Nkemdilim (1962) NLR LPELR-24023(SC). The error of Counsel in the present circumstances is fundamental and robs the Court of jurisdiction to entertain it. In the result, I sustain the preliminary objection to the hearing of the Appeal on the second ground of objection.
On the whole, having found that the Notice of Appeal is incurably defective on the basis of the Appeal being against a non-existent suit, the objection of the Respondent to the hearing of the Appeal is sustained.
Now the question is, having sustained ground two of the preliminary objection, what is the fate of the Appeal before the Court? I am well aware that as a general rule, an intermediate Court, such as this Court, has a duty to pronounce on all issues placed before it. See: Federal Ministry of Health V Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt. 1145) 193;Adeogun V. Fasogbon (2011) 8 NWLR (Pt. 1250) 427; Ovunwo V Woko (2011) 17 NWLR (Pt. 1277)

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522.
In this respect, this Court is unlike the Supreme Court which, as the apex Court of the land, is vested with authority to isolate just one critical issue amid others before it, and determine an appeal based on it. See: Shasi V Smith (2010) 6 WRN 39 at 68; Uzuda V Ebigah (2009) 48 WRN 1.
?Nonetheless, there exist some exceptions to this broad rule that applies to the Court of Appeal as an intermediate Court. For instance, where the Court decides that it lacks jurisdiction in an appeal before it, it then becomes unnecessary to consider other issues once it has taken a decision on the question of its jurisdiction. See: Oro v. Falade (1995) 5 NWLR (Pt. 396) 385 at 407; Ifeanyi Chukwu (Osondu) Ltd V Soleh Boneh Ltd (2000) 5 NWLR (Pt. 656) 322 at 352. What this means therefore is that, where a preliminary objection challenging the competence of an appeal is upheld, it will be unnecessary to consider the arguments in support of the issues for determination distilled by the parties to the Appeal. See: Onigemeh V Egbochualam (1996) NWLR (Pt. 448) 255; NEPA V Ango (2001) 15 NWLR (Pt. 737) 627; Uwazurike V AG, Federation (supra).
In the circumstance, there

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is nothing more worth considering in the Appeal. Put tersely, it lacks everything that any Court should look for in an attempt to determine the credit of an appeal from a forensic point of view, the premise upon which the Appeal is based having crumbled like a pack of cards. This conclusion, as aforesaid, obviates the need to consider the arguments in the main appeal. This must be so for a preliminary objection is a pre-emptive strike; its resolution obviates the need for the dissipation of precious judicial time in the determination of the appeal on the merit. Indeed, that is why this Court is under an obligation to resolve the issues agitated in the preliminary objection before taking any further step in the Appeal. Thus, since the preliminary objection to the competence of this Appeal has succeeded in the second ground, the proceedings in the Appeal are aborted, and the need to consider the issues raised therein automatically abates. The Appeal having been found incompetent, this Court lacks jurisdiction to entertain the Appellant?s agitation, which is woven around it. See Ikuepenikan V State (2015) LPELR-SC.402/2010 at 33-34; Onyemah V Egbuchulam

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(1996) 5 NWLR (Pt. 448) 255; (1996) 4 SCNJ 237; AG Federation V ANPP (2003) 12 SCNJ 67 at 81-82; Jim-Jaja V COP Rivers State (2012) LPELR-20621(SC) 10, para F; Okoi V Ibiag (2002) 10 NWLR (Pt. 776) 445 at 468; UBA Plc V ACB (2005) 12 NWLR (Pt. 939) 232; Goji V Ewete (2001) 15 NWLR (Pt. 736) 273 at 280; L.M. Ericsson Nig Ltd V Aqua Oil Nig Ltd (2011) LPELR-8807; Ananeku v Ekeruo (2002) 1 NWLR (Pt. 748) 301; NPA V Eyamba (2005) 12 NWLR (Pt. 939) 409; UBN V Sogunro (2006) 16 NWLR (Pt. 1006) 504; Uwazurike V AG, Federation (2007) LPELR-3448(SC) 14; Okoye V Nigerian Construction & Furniture Co. Ltd (1991) 6 NWLR (Pt. 199) 501; Auto Import & Export V Adebayo (2003) FWLR (Pt. 140) 1686.

In the result, the Notice of Appeal in Appeal number CA/YL/124/2015 between Mohammed Nyavo V Benjamin Zading dated 22nd September, 2015 and filed on 23rd September, 2015, and the Appeal in its entirety, is accordingly struck out on the ground of incompetence.

---

Other Citations: (2016)LCN/8822(CA)

Malam Hassan Alh. Saidu & Anor V. Malam Bukar Haruna Pelo Ola (2016)

LawGlobal-Hub Lead Judgment Report

JOSEPH TINE TUR, J.C.A.

I tagged this determination ?Decision? by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution which defines a ?decision? to means, ?in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.? A ?Ruling? is omitted in the definition of ?decision? under Section 318(1) of the Constitution (supra). What the framers of the Constitution omitted should not be inserted by trial Judges (Section 294(1)) or Justices of the Supreme Court or the Court of Appeal (Section 294(2)-(4) of the Constitution (supra).
In Davies vs. Powell (1737) Willes, 46, Willes, C.J. once held at page 51 that, ?When the nature of things changes, the rules of law must change too.?
In Jurisprudence, 4th edition by R.W.M. Diaz appears the following passage at page 196:
?This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of

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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 effect on every person or authority in Nigeria. Any law or rule 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 this determination an ?opinion? or a ?decision? as provided under Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. In Packer vs. Packer (1953) 3 All E.R. 127 Denning, L.J., held at page 129 as follows:
?I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction.?
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

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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

3

?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) 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 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

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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 318(1) of the Constitution (supra) defines a ?decision? to mean, ?in relation to a Court, or any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.? A ?ruling? is omitted from the definition of ?decision?. I have decided to tag this determination ?Decision? as provided under these constitutional provisions, bearing in mind the Supremacy of the Constitution (supra) under Section 1(1) and (3) of the 1999 amended Federal Constitution.

The number of appeals and motions listed for hearing per day, per week, per quarter and per year put together will show the number of ?decisions? or ?opinions? Justices of the Supreme Court or the Court of Appeal renders which constitutes the ?determination? of these appellate

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Courts the National Judicial Council ought to consider in assessing not only the quality but the quantity of their output/performance in administering justice. Only then will society appreciate the workload of the Supreme Court, the Court of Appeal and other superior Courts of record in Nigeria.
I shall now consider this application on the merit.
The remedies claimed by the appellants/applicants are set out in the motion on notice filed on 8th March, 2016 as follows:
?(a) Extension of time within which to seek leave to appeal against the judgment of the Borno State High Court, Maiduguri delivered in its appellate jurisdiction on 3rd December, 2015 in suit No.BOHC/BU/CVA/1/12 ? Malam Hassan Alh. Saidu & Anor. vs. Malam Bukura Haruna Pelo Ola.
(b) Leave to appeal on grounds of facts and mixed law and facts against the aforesaid judgment.
(c) Extension of time within which to file the Notice and Grounds of Appeal on grounds facts and mixed law and facts against the aforesaid judgment in terms of the attached Proposed Notice and Grounds of Appeal.
(d) AND FOR SUCH further order(s) as this Honourable Court may deem fit

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to make in the circumstances.?

The application is verified on the sworn Oath of Hafsat Ali, Litigation Secretary in Al-Adala Chambers representing the applicants/appellants. I have referred to the applicants as also ?appellants? because of the provisions of Section 30 of the Court of Appeal Act, 2004 which defines ?appeal? and ?appellant? as follows:
?30. In this Act, unless the con otherwise requires:-
?Appeal? includes an application for leave to appeal;
?Appellant? means any person who desires to appeal or appeals from a decision of the Court below or who applies for leave to so appeal, and includes a legal practitioner representing such as person in that behalf.?
See Williams vs. Mokwe (2005) 7 SCNJ 318 where Kalgo, JSC held at pages 331 to 332 as follows:
?By Section 31 of the Court of Appeal Act, an ?appellant? is defined to mean ?any person who desires to appeal or appeals from a decision of the Court below or who applied for leave to appeal, and includes a legal practitioner representing such a person in that

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behalf.? By filing the motion for leave to appeal in the trial Court on 28th July, 1994, the day the judgment was delivered by that Court, the respondent was definitely desirous of appealing against it to the Court of Appeal. He was therefore an ?appellant? within the meaning of Section 31 of the said Act. It is not in dispute however that the respondent though not a party to the case then filed its appeal on 28th July, 1994 before the actual leave to do so was granted by the Court of Appeal. At that stage, the appeal was no doubt a nullity. However, being an ?appellant? at that time and having filed its notice of appeal without leave, which is no doubt void it then filed its application for leave to appeal in the Court of Appeal and in prayer 3 asked for order deeming the notice and grounds of appeal it filed earlier as properly filed in order to regularize the filing of the notice of appeal. This in my view, makes it unnecessary for the requirement of a separate prayer for enlargement of time to appeal in the circumstances of this case. Therefore the Court of Appeal having granted the 2nd respondent?s prayer for leave to

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appeal without any objection by the appellant the Court was perfectly entitled, in my view, to grant the 3rd prayer deeming the notice of appeal filed on 29th July, 1994 by the 2nd respondent as properly filed in this case. And although it has retrospective application, the order was only intended to regularize the filing of the notice of appeal carried out on 28th July, 1994. The case of Cooperative Bank of Eastern Nigeria Ltd. (supra) cited by the appellant in support of the submission that the grant of leave by the Court of Appeal cannot be retrospective, is a Court of Appeal decision not binding on this Court, and is not in all fours with the instant appeal. In the Cooperative Bank?s case there was an application for extension of time to appeal, but in this case there was none, as the respondent, on filing the application on 28th July, 1994, became an appellant by law and had earlier filed its notice of appeal though not regular, as no leave to appeal was then granted to it. When the Court of Appeal granted the leave to appeal and deemed the notice of appeal as properly filed, the appeal was regularized which has, of course, retrospective

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effect.?

In an application seeking leave to appeal against the decision of a High Court of Justice in exercise of its supervisory or appellate jurisdiction, the first port of call is Sections 240 and 242(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered read together with Section 24(1)-(4) of the Court of Appeal Act (supra) and Order 7 Rules 10(1) and (2) of the Court of Appeal Rules, 2011. I shall consider these provisions in due course. This application should have been filed in the Court below. The appellant asserts that the application was filed in the Court below but could not be moved until the three months within which to appeal had expired. In that case the decision withdrawing or striking out the application by the Court below should have formed part of the documents in this application. That is not so.

In an application of this nature, Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered is authority that it is after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an

10

oral hearing of the application? that ?the Court of Appeal may dispose of any application for leave to appeal from any decision of? a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to? a High Court from any other Court See Section 242(1) of the Constitution (supra). Order 7 Rule 7 of the Court of Appeal Rules, 2011 provides that:
?7. The application for leave to appeal a decision of a lower Court shall contain copies of the following items, namely:-
(a) Notice of motion for leave to appeal (Form 5)
(b) A certified true copy of the decision of the Court below sought to be appealed against;
(c) A copy of the proposed grounds of appeal; and
(d) Where leave has been refused by the lower court, a copy of the order refusing leave.?

The word ?decision? is not defined in the Rules (supra). But the draftsman employed ?decision? in Section 242(1) which is defined in Section 318(1) of the Constitution (supra) as follows:
?318(1) In this Constitution, unless it is otherwise expressly provided or the con

11

otherwise requires:-
“Decision” means, in relation to a Court, any determination of that Court and includes judgment decree, order, conviction, sentence or recommendation.?

Any determination of the Court of first instance or of the lower Court may, depending on the facts and circumstances of each appeal or application to appeal, etc, be a relevant document, likewise exhibits any of the Court below relied upon in arriving at a determination of the matters in controversy.
Order 8 Rules 7-10 of the Court of Appeal Rules, 2011 provides as follows:
?7. Every record of appeal shall contain the following documents in the order set out:-
(a) The index;
(b) A statement giving brief particulars of the case and including a schedule of the fees paid;
(c) Copies of the documents settled and compiled for inclusion in the record of appeal;
(d) A copy of the notice of appeal and other relevant documents filed in connection with the appeal.
8. The registrar or the appellant in compiling the record shall endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not

12

relevant to the subject matter of the appeal and generally to reduce the bulk of the record as far as practicable, taking special care to avoid duplications of documents and unnecessary repetition of headings and other merely formal parts of documents; but the documents omitted to be copied shall be enumerated in a list at the end of the record, but where part or parts only of any lengthy documents are directly relevant to the subject matter of the appeal it shall be permissible to omit to copy such part of the document as are irrelevant to the subject matter of the appeal nor necessary for the proper understanding of the part or parts that are so relevant.
9. Every record or additional record of appeal compiled by a party to an appeal must be certified by the registrar of the lower Court.
Provided that it shall not be necessary for copies of individual documents to be separately certified but the registrar of the Court below shall certify as correct each copy of the record transmitted in accordance with these Rules.
10(1) Where the record is compiled by the registrar under Rule 1 of this order, he shall transmit the record within the time

13

stipulated for compilation and transmission under Rule 1. The record shall be transmitted together with:
(a) A certificate of service of the notice of appeal;
(b) Twenty copies of the record.
(c) The docket or file of the case in the court below containing all papers or documents filed by the parties in connection therewith, to the Registrar of the Court.
(2) Where the record is compiled by the appellant under Rule 4 of this order, he shall transmit the record within the time stipulated for compilation and transmission by an appellant under Rule 4. The record shall be transmitted in compliance with Rule 10(1).
(3) The registrar of the court below or the appellant as the case may be shall also Cause to be served on all parties mentioned in the notice of appeal, a notice that the record has been forwarded to the Registrar of the Court who shall in due course enter the appeal in the cause list.?

An examination of this application will show that the applicants gave notice to rely on the decision of the lower Court and proposed Notice and Grounds of Appeal. But the two documents per se do not constitute the ?record of

14

the proceedings? within the contemplation of Section 242(2) of the Constitution (supra) which the Court of Appeal has to consider to determine whether the interests of justice require or do not require an oral hearing of the application. For the Court of Appeal to form an opinion that the interests of justice do not require an oral hearing of the application or not, the decision of the Court of first instance and of the lower Court, etc, have to be examined from the contents of the records as defined under Order 7 Rule 7(a)-(d) and Order 8 Rule 7 to 10(1)-(3) of the Court of Appeal, Rules, 2011. As things now stand, the ?record of proceedings? are incomplete.

My understanding is that Section 242(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered is designed to summarily dispose of applications seeking leave to appeal against the decisions of the Courts below that are frivolous and vexatious, or have no chance of success if leave is granted and the appeal is heard on the merit. The intention of the legislature is expressly stated in Order 7 Rule 10(1) and (2) of the Court of Appeal Rules, 2011 which

15

provides as follows:
?10(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.
(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.?
In Words and Phrases Legally Defined Vol.5 (S-Z) page 141 appears the following passage:
?New Zealand: (Section 6 of the Mental Health Amendment Act, 1935 (N.Z), provides that leave of a Judge shall not be given to bring certain proceedings, civil or criminal unless the Judge is satisfied that there is ?substantial ground? for the contention that the person sought to be proceeded against had acted in bad faith or without reasonable care.) ?It was not, after all, for the appellant to

16

prove good faith: the onus was upon the respondent to show that there is substantial ground for the contention that the person against whom it is sought to bring the proceedings has acted in bad faith or without reasonable cause. To my mind, substantial ground cannot be said to be shown unless it appears that the material relied on is such as to afford a reasonable prospect of success at a trial.? See Angland vs. Payne, (1944) N.Z.L.R. 610, C.A., per Myers, C.J., at page 625; also reported (1944) G.L.R. 266, 269.?

In Mensa Akuamankra vs. Paul & Anor. decided by the Privy Council on 12th July, 1927 (reported in Privy Council Judgments (1841-1973) by Olisa Chukura, SAN, Viscount Haldane stated at page 178 as follows:
?Their Lordships have given careful consideration to the arguments in this case and are in a position to dispose of the appeal. It is a case involved in a good deal of obscurity, and it is important that their Lordships should, if possible, have had before them the judgment of the Court of Appeal, reviewing that of the Court of first instance. But owing to the fault, as it has been put, of the appellant, however, much

17

that fault may be excusable, he did not appeal in time. The Court of Appeal refused to entertain the appeal, and, when the matter was considered, they would not give the necessary leave to appeal to His Majesty in Council. Then the case came here, and special leave to appeal was granted, because their Lordships? principle is to do justice according to substance as well as to form. It, after hearing the arguments, they had been satisfied that there was a strong prima facie case of the Judge who tried the case having come to a wrong decision, they might have sent the case back to the Court of Appeal. But they are not so satisfied. As their Lordships have said, the case is one involved in considerable obscurity, but they are not prepared to differ from the decision of the learned Judge who tried the case, and as they have not, through the appellant?s fault, had the assistance of the Court of Appeal, they see no alternative, on the principles on which they exercise justice, but humbly to advise His Majesty to dismiss this appeal.?

?If upon a consideration of the record of proceedings there was a strong prima facie case that the decision of

18

the Court of first instance was wrong in law or on the facts yet, the lower Court affirmed that decision, and it is further established there was a miscarriage of justice, this Court would readily list the written application seeking leave to appeal for oral hearing and cause the processes to be served on the respondent/Counsel. Order 3 Rule 13 and Order 4 Rule 9(1) and (2) of the Court of Appeal Rules (supra) reads:
?13. The sitting of the Court and the matters to be disposed of at such sittings shall be advertised and notified in such manner as the President may direct:
Provided that the Court may in its discretion hear any appeal and deal with any other matter whether or not the same has been advertised.
9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such orders as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong a miscarriage of

19

justice has been thereby occasioned.?

Applications brought pursuant to Section 242(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 are to be treated as the substantive appeal hence the definition of ?appeal? and ?appellant? in Section 30 of the Court of Appeal Act, 2004. Order 3 Rule 13 and Order 4 Rule 9(1) and (2) of the Rules (supra) is further authority that applications of this nature are to be summarily disposed of upon a consideration of the record of proceedings if it is not in the interests of justice to list same for an oral hearing.

Section 242(1) and (2) of the Constitution (supra) is an exception to the provisions of Order 7 Rules 1-3 of the Court of Appeal Rules, 2011. The Order reads as follows:
?1. Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.
2. Any application to the Court for leave to appeal (other than an application made after the expiration of the time for appealing) shall be by notice of motion, which shall be served on the party or

20

parties, affected.
3. Where an application has been refused by the Court below, an application r a similar purpose may be made to the Court within fifteen days after the date of the refusal.?

An application for leave to appeal on grounds of mixed law and fact and for time to be extended to appeal pursuant to Section 242(1) and (2) of the Constitution (supra) read together with Order 7 Rules (1) and (2) of the Court of Appeal Rules (supra) is a call on the Court of Appeal to exercise a judicial discretion in favour of the applicants/appellants since time for appealing had already expired. An application for leave to appeal is defined as ?A motion asking an appellate Court to hear a party?s appeal from judgment when the party has no appeal by right or when the party?s time limit for an appeal by right has expired. The reviewing Court has discretion whether to grant or reject such a motion.? See Black?s Law Dictionary, 9th edition, page 115.
If ?appeal? includes ?an application for leave to appeal? and ?appellant? means ?any person who desires to appeal or appeals from

21

a decision of the Court below or who applies for leave to so appeal, and includes a legal practitioner representing such a person in that behalf? within the contemplation of Section 30 of the Court of Appeal Act, 2004, the legal implication is that an application seeking extension of time to appeal against the decision of a lower Court has the same effect as an appeal itself; the application should be heard by the Court of Appeal as the substantive appeal. How are appeals heard in the Court of Appeal?

Order 18 Rules 1-4 and 9(1) of the Court of Appeal Rules, 2011 provides thus:
?1. This Order shall apply to all appeals coming from any Court or Tribunal from which an appeal lies to this Court.
2. The appellant shall within forty-five days of the receipt of the Record of Appeal from the Court below file in the Court a written brief, being a succinct statement of his argument in appeal.
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.<br< p=””

</br<

22

(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.
(5) Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarize judgments of the lower Court, nor set out statutory provisions, nor contain an account of the proceedings below nor of the facts of the case.
(6)(a) Except where the Court directs

23

otherwise, every brief to be filed in the Court shall not exceed 30 (thirty) pages.
(b) The brief must be prepared in 210mm by 297mm paper size (A4) and typed in clear typographic character. The typeset shall be in Arial, Times New Roman or Verdana of 12 point with at least single spaces in-between.
(c) Every brief which does not complied with the page limit and page size requirements of this Order shall not be accepted by the Registry for filing.
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.
xxxxxxxxxxxxx
9(1) Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing in the briefs

24

already filed in Court.?

Appeals are not heard on written addresses but on briefs of argument.

It seems to me that an application brought pursuant to Section 242(1) and (2) of the Constitution (supra) read together with Section 30 of the Court of Appeal Act, 2004 and Order 7 Rule 10(2) and Order 18 Rules 3-4 of the Court of Appeal Rules (supra) ought to be supported by an appellant?s proposed brief of argument. The record of proceedings and the appellant?s proposed brief wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.? See Order 18 Rule 3(3) of the Rules (supra). All the relevant documents and exhibits this Court has to consider to list the application for an oral hearing in the interest of justice are not before this Court.

Exhibit ?A? is the decision of the lower Court rendered on 3rd December, 2015. Pages 2-3 of the decision reads as follows:
?The appellant formulates a single issue for determination, from the first ground of appeal, implicitly abandoning the second ground. This issue is:<br< p=””

</br<

25

?Whether the respondents have proved their case to be entitled to judgment at the trial Court.?
Appellant?s Counsel drew our attention to page 2 line 16 and page 3 lines 1-4 of the record of proceedings, that the only evidence relied upon by the respondents as plaintiffs was a Customary Certificate of Occupancy, a receipt and a site plan. These were not forwarded as part of the record of appeal and when this Court?s registrar wrote (Exhibit ?A?) requesting the trial Court to do so, the reply (Exhibit ?B?) was that they were ?nowhere to be found.? Counsel therefore submits that the trial Court acted on no evidence when it gave judgment for the respondent.
Furthermore, appellant?s Counsel further contended that the DW1 who testified for the appellant raised questions as to the way and manner the respondents obtained the certificate relied upon.
Mr. Yahaya, who adopted the appellant?s brief, urged the Court to allow the appeal, set aside the decision of the trial Court, and order a retrial before a different judge.
We have gone through the record of proceedings at the

26

trial Court. The respondents, as contended by Counsel, relied only on those documents. The trial Judge based his judgment on a preference of those documents as being weightier than the testimonies of the four witnesses called by the appellant/plaintiff. The witnesses gave testimony of knowing the farmland to have been owned by the appellant?s father and later the appellant. DW4 testified that the appellant even allowed him to cultivate once and the respondents? animals destroyed his beans. The appellant?s witnesses wondered how the respondents ?registered? the farm.
While the trial Court is at liberty to consider the documents as weightier than the testimonies, where those documents have been strenuously challenged, there was the need to establish their authenticity. Mere production of a Customary Certificate of Occupancy, purporting to grant the land to a party, is not enough in the circumstance. The point was made time without number. It should suffice to refer to the case of Boye Industries Limited & Anor. vs. Sowemimo (2009) LPELR-8858, per the exemplary jurist of our time, Salami, JCA:
?It is trite that

27

the mere issuance or acquisition of a certificate of occupancy does not and cannot confer title in respect of a parcel of land it purports to cover where no such title either existed or was available to be transferred. ?A certificate of occupancy does not stop the Court from enquiring into the validity or existence of title of the person asserting possession before the issue of the certificate.?
Indeed, where, as in this case, the certificate and documents relied upon could not be traced at the Court and produced as part of the record of appeal, the judgment premised solely on them cannot stand.
We therefore resolve this issue in favour of the appellant. The appeal is allowed. The judgment of the trial Court is set aside. We order a retrial before a different Judge.
Costs of N30,000.00 in favour of the appellant.?

How can this Court arrive at a decision that the interests of justice do require an oral hearing of this application in the absence of the decision of the Court of first instance which this Court will consider whether the lower Court was right or wrong in setting aside? That is not possible.

?In Rt. Hon.

28

Uduimo Itsueli & Anor. vs. Securities and Exchange Commission & Anor. (2016) 6 NWLR (Pt.1507) 160, Ogunbiyi, JSC held at page 172 as follows:
?The law is trite that in an application of this nature, for the applicant to earn the favour of the Court, he must satisfy two conditions which must co-exist conjunctively i.e. to say there must be good and substantial reason why a discretion should be exercised in favour of the application and secondly that the grounds of appeal sought to be introduced are arguable.
From the facts deposed on the affidavits and counter affidavit of parties taken together, and also the grounds predicating the application, I hold the view that the justice of this application does not operate in favour of the applicant. My learned brother has given detailed reasons for the refusal of the application and I adopt same as mine and dismiss the application for want of merit.?
The Supreme Court has held that the two conditions prescribed in Order 7 Rule 10(2) of the Court of Appeal Rules, 2011 must co-exist before time is extended for an appellant to appeal. See Chrisray (Nig.) vs. Elson & Neil Ltd. (1990)

29

3 NWLR (Pt.140) 630 at 640; Osinupebi vs. Saibu & Co. (1982) 7 SC 104 at 109; Montubi S.P.A. vs. Scansila Contracting Co. Ltd. (1986) 2 NWLR (Pt.21) 154 at 164; John & Ors. vs. Blakks & Ors. (1988) 4 NWLR (Pt.90) 539 at 549 and Kiyawa vs. Madawaki (1986) 2 NWLR (Pt.20) 113 at 121. That may be so. But when one examines the provisions of Section 242(1) and (2) of the Constitution (supra), the real questions to be determined is whether upon establishing the two conditions precedent the interests of justice, which may vary according to the circumstances of each appeal/application, necessitates an oral hearing of the application. InNwawuba vs. Enemuo (1988) 19 NSCC (Pt.1) 930 at 936 lines 27-41, Aniagolu, JSC held as follows:
The defendants appealed to the Court of Appeal, Enugu Division. In the lead judgment of S.M.A. Belgore, JCA (as he then was) to which Phil-Ebosie and Ola-tawura, JJ.C.A. concurred, he carefully adverted to the above findings of fact and the law involved and dismissed the appeal. The defendants (hereinafter called the appellants) have, with leave of the Court of Appeal, appealed further to this Court. The

30

plaintiffs shall hereafter be referred to as the respondents.
I must pause here to observe that from the record, I do not see why leave to appeal should have been granted by the Court of Appeal, per Phil-Ebosie, Aseme and Aikawa, JJ.C.A. save, perhaps, that the application for leave was not opposed. In my opinion, even where such an application for leave to appeal is not opposed, the Court of Appeal or, indeed, this Court, is still in duty bound to satisfy itself in a case like this in which there have been far-reaching and concurrent findings of fact by two lower Courts, that there are special circumstances to warrant a grant of leave to appeal. The attitude of this Court to such matters has already been made clear in very many cases, including: Chinwendu vs. Mbamali (1980) 3-4 SC 31; Lamai vs. Orbih (1980) 5-7 SC 28; Chief Kweku Serbeh vs. Ohene Kobina Karikari (1938) 5 WACA 34; Ibodo vs. Enarofia (1980) 5-7 SC 42.
However, as the Court below has granted leave, I am making this point rather as a guide for the future.?
In Chinwendu vs. Mbamali (1980) 3-4 SC 31, Aniagolu, JSC once again held at pages 31-32 as follows:
?This

31

appeal has come before this Court for hearing following an application for leave to appeal granted by the Federal Court of Appeal on 2nd May, 1978 upon a Motion ex parte filed by the defendant/appellants and made ex parte by reason of the combined effect of Section 117(3)(a) of the Constitution of the Federation No.20 of 1963 as amended by the Constitution (Amendment) (No.2) Decree, 1976; Section 8(3) of the Federal Court of Appeal Decree No.43 of 1976 which applied the 1961 Supreme Court Rules to the Federal Court of Appeal; and Order VII Rule 3(1) of the said 1961 Supreme Court Rules which states that:
?Where an appeal lies only by leave of Court or of the Court below any application to the Court for such leave shall be made ex parte by notice of motion.?
Had the motion not been made ex parte and had the respondents been given the opportunity to contest the application, it is doubtful whether, on the facts of the case as found by the trial High Court and confirmed by the Federal Court of Appeal, leave to appeal to the Supreme Court would have been granted by the Federal Court of Appeal ? the said facts being so hopelessly against

32

the appellants that the surprise was that they should have chosen to appeal at all against the judgments, the appeal being only one of facts even though ingeniously couched, in the grounds of appeal, as if they had any legal contents. At the end of appellants? Counsel?s argument we did not call upon respondents? Counsel for a reply. This is a clear case in which the Federal Court of Appeal ought to have refused leave to appeal or at best ordered notice of the motion to be served on the respondents, as that Court had undoubted power to do, and thereafter hear both sides before granting or refusing the application.?
See alsoLamai vs. Orbih (1980) 5-7 SC 28.

Thus, the listing of an application for extension of time to appeal is not automatic. The application would only be listed for oral hearing in the interests of justice. I have examined the proposed grounds of appeal. They read as follows:
?1. The decision of the lower Court is against the weight of evidence.
2. The lower Court erred in law when it allowed the respondent?s appeal and set aside the judgment of the trial Court when the record of appeal

33

before it is not complete which error has caused a miscarriage of justice.
PARTICULARS OF ERROR:
(a) The trial Upper Sharia Court relied on documentary evidence tendered by the appellants and delivered its judgment in favour of the appellants.
(b) The respondent did not object to the admissibility of the document.
(c) The respondent called witnesses who gave irreconcilable contradictory oral evidence.
(d) The trial Court did not believe their testimony and relied on documentary evidence.
3. The lower Court erred in law when it held that ?there was need to establish their authenticity that mere production of a customary certificate of occupancy purporting to grant the land to a party is not enough in the circumstance when the trial Court relied on the principle of Islamic Law in deciding the matter? which error has caused a miscarriage of justice.
PARTICULARS OF ERROR:
(a) The trial Upper Sharia Court decided the case under Islamic Law while the authority relied upon by the lower Court is a common law principle which is not applicable in the matter.
(b) The respondent did not object the admissibility

34

of the document.
RELIEFS SOUGHT FROM THE COURT OF APPEAL:
(a) To allow the appeal and set aside the decision of the lower Court.
(b) An order affirming the decision of the trial Court.?

One may still ask: how can this Court arrive at the decision that the Court of first instance applied Islamic Law in the determination of the controversy as to the ownership of the land in dispute when the proceedings of the Court of first instance is not before this Court for consideration? There is no answer.

How may this Court know that the records were incomplete nevertheless the Court below heard and determined the appeal? Entries in the record of proceedings are prima facie correct until proved otherwise. See Atlas (Nig.) Ltd. vs. Steve Rhodes (1961) 1 All NLR (Pt.2) 348.

Accordingly, the appellant has not shown that in the interests of justice the Court of Appeal should list this application/appeal for an oral hearing. I dismissed this application. I award N50,000.00 cost against the appellants in favour of the respondent.

---

Other Citations: (2016)LCN/8821(CA)

Hrh Da Noel Kim V. The Executive Governor of Plateau State & Ors (2016)

LawGlobal-Hub Lead Judgment Report

JOSEPH TINE TUR, J.C.A.

I tagged this determination Decision by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution which defines a decision to mean, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. A Ruling is omitted in the definition of decision under Section 318(1) of the Constitution (supra). What the framers of the Constitution omitted should not be inserted by trial Judges (Section 294(1)) or Justices of the Supreme Court or the Court of Appeal (Section 294(2)-(4) of the Constitution (supra). In Davies vs. Powell (1737) Willes, 46, Willes, C.J. once held at page 51 that, When the nature of things changes, the rules of law must change too.
In Jurisprudence, 4th edition by R.W.M. Diaz appears the following passage at page 196:
This is a truism in that the legislature and within limits, the Courts should change rules to keep the

1

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 effect on every person or authority in Nigeria. Any law or rule 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 this determination an opinion or a decision as provided under Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
In Packer vs. Packer (1953) 3 All E.R. 127 Denning, L.J., held at page 129 as follows:
I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction.
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

2

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

3

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) 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 pronounced or read by any other Justice whether or not he was at the hearing.
(3) A decision of a Court

4

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 318(1) of the Constitution (supra) defines a decision to mean, in relation to a Court, or any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. A ruling is omitted from the definition of decision. I have decided to tag this determination Decision as provided under these constitutional provisions, bearing in mind the Supremacy of the Constitution (supra) under Section 1(1) and (3) of the 1999 amended Federal Constitution.

The number of appeals and motions listed for hearing per day, per week, per quarter and per year put together will show the number of decisions or opinions Justices of the Supreme Court or the Court of Appeal renders which constitutes the

5

determination of these appellate Courts the National Judicial Council ought to consider in assessing not only the quality but the quantity of their output/performance in administering justice. Only then will society appreciate the workload of the Supreme Court, the Court of Appeal and other superior Courts of record in Nigeria.
I shall now consider this appeal on the merit.

His Royal Highness Da Noel David Kim (Gwom Rwei of Foron) and Danboyi Shut Pam had instituted the suit for themselves and on behalf of the Lo-Zam Dyeng Saben Ruling House of Foron against the Executive Governor of Plateau State and nine (9) others before the High Court of Justice of Plateau State holden at Barkin Ladi on 9th June, 2003. In due course the appellants amended the original writ of summons and statement of claim. The respondents relied on a Further Amended Joint Statement of Defence. On 25th October, 2013 the Lower Court took a decision which favoured the respondents but aggrieved the appellants hence this appeal filed on 8th November, 2013 against the decision. The appellants brief settled by T.J.J. Danjuma, Esq. was filed on 27th

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November, 2014. The learned Counsel formulated the following lone issue for determination at page 5 of the brief to wit:
Whether the learned trial Judge was right to strike out the plaintiffs/appellants case for being incompetent by reason that the plaintiffs/appellants Counsel did not sign the writ of summons notwithstanding the provisions of the Plateau State High Court Civil Procedure Rules, 1987, as to who the duty of signing and issuing a writ of summons lies upon.

Only the 9th respondent filed a brief of argument on 8th April, 2015. The following lone issue was formulated at page 2 of the brief to wit:
Whether the learned trial Judge was right when he found that the appellants Writ of Summons was not signed as required by law and proceeded to strike out the appellants suit for being incompetent.

Before I proceed to consider the lone issue formulated by the parties may I give a summary of the facts in dispute which led to the institution of this action in the Court below.
The present appellant was suspended from the position of Gwom Rwei of Foron by the

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Ministry of Local Government and Chieftaincy Affairs in a letter dated 14th May, 2003. Da Wang Pam, the Gwom Nafok of Foron (9th respondent) was appointed as acting Gwom Rwei of Foron in a letter dated 16th May, 2003. The appellant regarded this as unlawful, unconstitutional, void and of no effect hence the institution of this suit in the Court below on 8th day of February, 2007. Paragraphs 1-42 of the Amended Statement of Claim pleaded the genesis of the crisis with the respondents. Paragraph 43 claimed the following remedies against the respondents in the Court below as follows:
43. WHEREFORE the plaintiff claims against the defendants jointly and severally as follows:
(i) A declaration that his purported indefinite suspension from the office of Gwom Rwei of Foron, vide Ministry of Local Government and Chieftaincy Affairs letter number MLGC/L.G.A./S/DIS/3/VOL.1/159 and dated 14th May, 2003, is unlawful, unconstitutional, void and of no effect whatsoever.
(ii) A declaration that the purported appointment of Da Wang Pam, the Gwom Nafok of Foron, as acting Gwom Rwei of Foron, vide Barkin Ladi Local Government letter number

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BLLG/S/ER/ADM/478A/XX and dated 16th May, 2003, as unlawful, null and void.
(iii) A declaration that the setting up of the panel of inquiry headed by Mr. Elisha Amanchi, and the terms of reference are unconstitutional, null, void and of no effect whatsoever.
(iv) An order setting aside the instrument setting up the committee/panel of inquiry and a further order restraining the 5th to 9th defendants from inquiring into the terms of reference given to them.
(v) An order of perpetual injunction restraining the 1st, 2nd and 3rd defendants, either by themselves or anybody acting or claiming to act on their behalf, from accepting or acting upon any report submitted to them by the 5th to 9th defendants with respect to the assignment complaint of.
(vi) An order declaring the purported report submitted by the (Amanchi) Committee, in contravention of a subsisting Court order, to the 1st, 2nd and 3rd defendants and all steps taken consequent upon that report, null, void and of no effect whatsoever.
(vii) An order of perpetual injunction restraining the 10th defendant (Bulus Pam Bot) from parading himself and/or performing the functions and

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duties of Gwom Rwei of Foron and a further order restraining the 1st, 2nd and 3rd defendants and all other defendants or their agents from installing, giving him staff of office, recognized or treating him in any other way as the Gwom Rwei of Foron.
(viii) A specific order nullifying the purported selection of Bulus Pam Bot as (the 10th defendant) the Gwom Rwei of Foron and directing the 1st, 2nd and 3rd defendants to immediately restore the plaintiff HRH Da Noel David Kim, to his position as the Gwom Rwei of Foron.

The respondents narrated their own side of the dispute from Paragraphs 1-23 of the Further Amended Joint Statement of Defence. In Paragraph 24 the respondents pleaded that at the hearing they shall contend that the suit is frivolous, vexatious and constitutes an abuse of Court process and should be dismissed. The respondents case as can be garnered from the Further Amended Joint Statement of Defence is that the appellant was suspended from office because of insubordination and partisan politics notwithstanding his position as the Gwom Rwei of Foron. The appellant had abandoned the age long traditional history of respect for

10

constituted authorities by allowing himself to be involved in acts of insubordination and partisanship politics contrary to his position as a traditional ruler. The 1st-3rd respondents pleaded that the Plateau State Traditional Council of Chiefs is the only recognized and approved body or authority to make any recommendation to the Government of Plateau State on matters affecting traditional institutions but certainly not the appellant he being merely a 3rd class chief not having access to the Executive Governor of Plateau State without going through the Local Government Council in Barkin Ladi Local Government. The appellant however embarked on cheap political blackmail and partisanship intended to tarnish the image of the Executive Governor of Plateau State. The so-called advice by the appellant was written not in good faith but malafide. By the time the 1st 3rd respondents would receive the so-called advice embedded in the offensive letter, it was already in the press hence the appellant had to be queried. His reply to the query was not satisfactory hence its rejection. The Barkin Ladi Local Government was directed to find out if the press release

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emanated from the office of the appellant. The appellant did not respond to the Barkin Ladi Local Government Council inquiry hence it became necessary to set up a Committee to see whether a case of abuse of office could be established or not against the appellant. The appellant appeared before the Committee and testified as contained in the Committees Report. This culminated in the suspension and appointment of the 9th respondent to act in the office of the appellant hence the frivolity and vexatiousness of the action of the appellant in the Lower Court.

Oral and documentary exhibits were relied upon by the parties to establish their respective claims and defences.
Order 18 Rule 3 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

12

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 point to be raised and the reasons upon which the arguments is founded.
(5) Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarize judgments of the Lower Court, nor set out statutory provisions, nor contain an account of the proceedings below nor of the facts of the case.
(6)(a) Except where the Court directs otherwise, every brief to be filed in the Court shall not exceed 30 (thirty) pages.
(b) The brief must be prepared in 210mm by 297mm paper size (A4) and typed in

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clear typographic character. The typeset shall be in Arial, Times New Roman or Verdana of 12 point with at least single spaces in-between.
(c) Every brief which does not complied with the page limit and page size requirements of this Order shall not be accepted by the Registry for filing.

I do not need to make a verbatim reproduction of the argument proffered in the appellants nor the respondents brief since the issue is very narrow and straight forward. I shall start by observing that an unsigned process or document is generally worthless; it has no validity, it cannot be traceable to any known author. Such a process or document may be said to have a spurious origin. See Garuba vs. Kwara Investment Co. Ltd. (2005) All FWLR (Pt.252) 469 at 479; Zein vs. Geidam (2004) All FWLR (Pt.237) 457 at 482; Etiko vs. Aroyewun (1959) 4 FSC 129; Kareem vs. Ogunde (1972) 1 SC 109; Braimah vs. Abasi (1998) 10 SCNJ 85. Indeed, in Omega Bank Nigeria Plc vs. O.B.C. Ltd. (2005) All FWLR (Pt.249) 1964 appears the following statement of the law per Niki-Tobi, JSC at page 1994 Paragraph D to wit:
A document which is not

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signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious. I hold that Exhibit P6 was wrongly admitted and given probative value. To me, Exhibit P6 has no probative value.

Suits or actions are commenced in the High Court of Justice by legal representatives applying for writ of summons, originating summons, originating motions or petitions as the case may be under Order 1 Rules 1(a)-(e) and 2(a)-(b) and (3) of the High Court (Civil Procedure) Rules, 1987. Order 5 Rules 1-3, 11(1)-(2), 12(1)-2(a)-(c), of the Rules (supra) provides as follows:
5(1) A writ of summons shall be issued by a Judge, or an officer of the Court empowered to issue summonses, on application. The application shall ordinarily be made in writing by the plaintiffs solicitor by completing Form 1 in the Appendix to these rules; but the Judge or other officer as aforesaid , where the applicant for a writ of summons is illiterate, or has no solicitor, may dispense with a written application and instead himself record full particulars of an oral

15

application made and on that record a writ of summons may be prepared, signed and issued.
(2) The writ of summons shall contain the name and place of abode of the plaintiff and of the defendant so far as they can be ascertained; it shall state briefly and clearly the subject matter of the claim, and the relief sought for, and the date of the writ, and place (called the return-place) of hearing.
(3) Any alteration of a writ without leave of the Court shall render the writ void.
xxxxxxxxxxx
11(1) Before a writ is issued it shall be endorsed:-
(a) Where the plaintiff sues in a representative capacity, with a statement of the capacity in which he sues;
(b) Where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued;
(2) Before a writ is issued in an action brought by a plaintiff who in bringing it is acting by order or on behalf of a person resident outside the jurisdiction, it shall be endorsed with a statement of that fact and with the address of the person so resident.
12(1) Where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the

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plaintiffs address and the legal practitioners name or firm and a business address of his within the jurisdiction and also, if the legal practitioner is the agent of another, the name or firm and business address of his principal.
(2) Where the plaintiff sues in person, the writ shall be endorsed with:-
(a) The address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent;
(b) His occupation, and
(c) An address for service.

When does the issue of a writ take place?
Order 5 Rule 15 of the Rules (supra) provides as follows:
15. Issue of a writ takes place upon its being signed by a Judge or an officer of the Court duly authorized to sign the wit.
See Mobil Oil Nigeria Ltd. vs. Alhaji Hameed Ijaiya (1964) L.L.R. 60 at 61.

A suit is usually commenced from the time a claimant submits his application to the appropriate Court official accompanied with the prescribed fee. See Alawode vs. Semoh (1959)

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4 FSC 27 at 29-30; Ahmed vs. Gusau Local Government (1980) FNLR 491 at 496; Nicholls vs. General Manager, Nigerian Railways (1938) 14 NLR 87.

A writ of summons should be set aside only where the action constitutes an abuse of Court process. Other defects should be treated as mere irregularities provided that is curable by a statement of claim. See Pontin vs. Wood (1962) 1 All E.R. 294 at 301 per Davies, L.J. The second instance is where the claimant did not possess the capacity to sue at the time he did. See Hilton vs. Sutton Steam Laundry (1945) 2 All E.R. 425; Finnigan vs. Cementation Co. Ltd. (1953) 1 All E.R. 1130 and Grounsill vs. Cnthel & Ors. (1952) 2 All E.R. 137. The circumstances for striking out a writ of summons and statement of claim are however not closed.

Form 1 in the Appendix to the Plateau State High Court (Civil Procedure) Rules, 1987 is as follows:
CIVIL PROCEDURE
FORMS
FORMS OF WRITS OF SUMMONS, ETC
FORM 1
General Form of Writ of Summons
.. 19 ..
(here put the letter and

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number) (see note) (a) following this form)
IN THE HIGH COURT OF PLATEAU STATE
IN THE .. JUDICIAL DIVISION
SUIT NO: 19 ..
Between A.B. .. Plaintiff
And
C.D. .. Defendant
To C.D. of in the .. of .. you are hereby commanded that within eight days after the service of this writ on you, inclusive of the days of such service, you do cause an appearance to be entered for you in an action at the suit of A.B; and take notice that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence.
DATED this . Day of 19 ..
By order of the Court
JUDGE/AUTHORIZED OFFICER
Memorandum to be subscribed on the writ

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N.B. This is to be served within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not after wards.
The defendant (or defendants) may enter appearance personally or by legal practitioner either by hanging in the appropriate form, duly completed, at the Registry of the High Court of the Judicial Division in which the action is brought or by sending them to the registrar by registered post. Endorsement to be made on the writ before issue thereof The plaintiffs claim is for, etc, (b) This writ was issued by G.H., of .. whose address for service (c) is .. agent for . of legal, practitioner for the said plaintiff who resides at (d) . (mention the city, town or district and also the name of the street number of the house of the plaintiffs residence, if any). Endorsement to be made on copy of writ

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forthwith after service This writ was served by me at on the defendant (here insert mode of service) on the . day .. of 19 ..

JUDGE/AUTHORIZED OFFICER
Endorsed the .. day of . 19 .
(Signed)
(Address) .

The writ of summons should indicate whether it is the plaintiff or the legal practitioner that had applied for its issuance. Therefore, the application for the issuance of a writ of summons should contain

21

the express name of the legal practitioner or the claimant/plaintiff who had applied for it, signed and dated. A judge will not issue a writ of summons except there is an application to that effect by the claimant or his legal representative.
I am of the opinion that without the signature and date on the application for the issuance of a writ of summons, the application has no validity for it will become impossible to know which solicitor applied on behalf of a claimant for the issuance of the writ. However, validity can be ascribed to such an unsigned application where the learned trial Judge or the appropriate officer designated in the Courts Registry appended his signature to the writ and the matter proceeded thereafter to hearing and conclusion of evidence without objection from the defence. That is the purport of Order 2 Rules 1(1)-(2) and 2(1)-(2) of the Plateau State High Court (Civil Procedure) Rules, 1987 which provides as follows:
1(1) Where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been a

22

failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
(2) The Court may on the ground that there has been such a failure as mentioned in Paragraph (1) and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
2(1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and fore the party applying has taken any fresh taken after becoming aware of the irregularity.
(2) Any application under the foregoing paragraph may be made by summons

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or motion on notice, and the grounds of objection shall be stated in the summons or notice of motion.
In Pontin vs. Wood (supra) Holryd-Pearce, L.J., held at page 297 Paragraph W regarding Order 70 Rules 1-2 of the Rules of the Supreme Court in England, 1961 Is directed to the curing of that which is capable of cure, to saving rather than destroying. See also UBA vs. Nwora (1978) 1 L.R.N. 149 at 155.

Notwithstanding the fact that the application for the issuance of the writ of summons was not signed, that irregularity was cured by the issuance of the writ of summons by the learned trial Judge. My candid opinion is that the appellant was given a hearing based on his oral evidence supported by documentary exhibits at the Committee or Panel that investigated his conduct before his suspension from office. Section 11 of the Interpretation Act (Cap.123) Laws of the Federation of Nigeria, 2004 provides as follows:
11. Appointment
(1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes:-<br< p=””>

</br<>

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(a) Power to appoint a person by name or to appoint the holder from time to time of a particular office;
(b) Power to remove or suspend him;
(c) Power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint:-
(i) To reappoint or reinstate him;
(ii) To appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.
(2) A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the function of the office generally or the functions in regard to which he is appointed, as the case may be.

The appellant being a traditional ruler ought to have confined himself to the performance of his traditional functions and duties but certainly not to get involved in partisanship politics nor to stand in the way of ruthless politicians who may not tolerate criticism or dissent concerning their political maneuvers. The

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appellant might have fared better if he read Psalm 1:1-3 (KJV) to wit:
BLESSED is the man that walketh not in the Counsel of the ungodly, nor standeth in the way of sinners nor sitteth in the seat of the scornful. But his delight is in the law of the LORD; and in his law doth he mediate day and night. And he shall be like a tree planted by the rivers of water, that bringeth forth his fruit in his season; his leaf also shall not wither; and whatsoever he doeth shall prosper.

Traditional rulers who stand in the way of politicians will certainly be putting their offices into jeopardy, or to be rubbished.
This appeal, though partly successful, is not sufficient to foist upon the respondents the appellant as the Gwom Rwei of Foron.

This is a proper case to invoke the provisions of Section 15 of the Court of Appeal Act, 2004 to dismiss this appeal. See Ezeigwe vs. Nwawulu (2010) 181 LRCN 22 at 52, 55; Agbakoba vs. INEC (2008) 18 NWLR (Pt.1119) 489; Amaechi vs. INEC (2008) 5 NWLR (Pt.1080) 227 and Obi vs. INEC (2007) 11 NWLR (Pt.1046) 565 and 639-640.

The appeal stands dismissed. The 9th respondent filed a brief, I am of the

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humble opinion he is entitled to N50,000.00 cost of this appeal against the appellant.

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Other Citations: (2016)LCN/8819(CA)