The Administrator General and Public Trustee, Delta State & Anor V. Mrs. Stella Ogogo & Anor (2005)

LawGlobal-Hub Lead Judgment Report

ABBA AJI, J.C.A.

This appeal is against the decision of M. E. Akpiroroh, J. sitting in Asaba High Court in suit No. A/32/86 delivered on the 11th February, 1994.

The appellants as the Plaintiff before the lower court claimed against the defendant/respondent as per the writ of summons dated the 6th day of November, 1986 for the following reliefs:

(1) A declaration that the plaintiff is the executor of the Will/Estate of Madam Lydia Elikwu (deceased).

(2) A declaration that No.5, Marine Road, Cable Point Asaba is the property of Late Madam Lydia Elikwu.

(3) An order that defendant account for all the money received by her as rents accruing from No.5 Marine Road, Cable Point, Asaba since March 30th, 1976.

(4) An order that the defendant show cause why a fine exceeding one hundred Naira should not be imposed on her for intermeddling with the estate of late Madam Lydia Elikwu.

(5) Perpetual injunction restraining the defendant from further intermeddling with the aforementioned estate.

Pleadings were duly filed and exchanged by the parties. The facts leading to this appeal as can be gleaned from the pleadings the parties and the record of proceedings are that the 1st plaintiff, the Administrator General and Public Trustee, Bendel State of Nigeria is the executor of the last will and testament of Late Madam Lydia Elikwu who died on the 30th March, 1976 in Asaba, Delta State, to administer the property for the sole beneficiary of the Estate of the testatrix one Mr. Benedict Anwuzia Elikwu the 2nd plaintiff/appellant. The 1st appellant was granted letters of administration by the High Court of Justice, Delta State on the 14th of July, 1986 the Will having been proved and registered. In the Will, No. 5, Marine Road, Cable Point, Asaba was listed as the property of the testatrix and the defendant/respondent was alleged to be intermeddling with the property and refused to give possession to the 1st appellant. It was averred that the said No.5, Marine Road Cable Point, Asaba belonged to the testatrix who during her lifetime was an owner in possession of the said property. That the respondent continued her acts of intermeddling as executor de son tort where she continued to collect rents in respect of the property from 30th March, 1976 without accounting to any of the plaintiffs.

On the other hand, the respondent denied the appellant’s claim and states that No.5, Marine Road, Cable Point Asaba is the property of their late father Anthony Ojinma Elikwu which on his death passed to his children by Asaba Native Law and Custom. That Madam Lydia Elikwu was their father’s sister. That it was late Anthony Lydia Ojinma Elikwu who built No.5 Marine Road, Cable Point, Asaba and allowed Madam Elikwu to live on the property until her death. That No.5, Marine Road, Cable Point was never the property of Madam Lydia Elikwu that the property belongs to her father. She denied intermeddling with the property.

By an application dated the 9/2/89, the 1st appellant sought and joined the sole beneficiary of the real and personal properties of the deceased Mr. Benedict Anwuzia Elikwu in the suit as a 2nd plaintiff and was so joined by an order of court dated 14th February, 1989.

The 1st appellant testified by as legal officer, one Ben Adigwe Esq., and called six other witnesses. The 2nd plaintiff testified and called no witness. The respondent testified and called three other witnesses. At the end of the hearing both counsel addressed the court. In a considered judgment delivered on the 11th February, 1994, the learned trial Judge dismissed the appellants claim. This is what the trial Judge held in dismissing the appellant’s claim:

“As between the evidence in the plaintiff’s case and the defendant’s case, I accept and believe the evidence of the defendant’s case as truthfully stating how the land on which No.5, Marine Road, Cable Point, Asaba was acquired. I am quite satisfied on the evidence before me that the father of the defendant acquired the land in 1943 and built No.5, Marine Road which was later inherited by her. The plaintiffs have failed to prove that No.5, Marine Road, Cable Point, Asaba belongs to late Madam Lydia Elikwu. The plaintiffs having failed to prove that No.5, Marine Road, Cable Point, Asaba belongs to late Madam Lydia Elikwu they are not therefore entitled to reliefs 2, 3, 4 and 5 sought by them in their statement of claim and they are accordingly dismissed with cost assessed at N500.00 in favour of the defendant”.

The plaintiffs now appellants were dissatisfied with the said judgment and have now appealed to this court. They filed five grounds of appeal. The grounds of appeal without their particulars are hereby reproduced.

Grounds of Appeal

(i) The learned trial Judge erred in law in deciding on an issue that was not in any contest

(ii) The learned trial Judge erred in law and misdirected himself by holding the evidence of DW2 as corroborative of an incident that occurred in 1943; that is to say, the acquisition of the land on which No.5, Marine Road, Asaba was built.

(iii) The learned trial Judge erred in law and as such misdirected himself in relying heavily or attaching heavy weight to the evidence of DW3 as well as the evidence of DW 1.

(iv) The learned trial Judge erred in law and in fact in not making any specific pronouncement or finding in respect of other properties or chattels of late Madam Lydia Elikwu had during her life time, irrespective of No.5, Marine Road, Cable Point, Asaba.

(v) The learned trial Judge erred in law to have relied on exhibits ‘D’, ‘M’, ‘N’ and ‘F’ as indicative of the literacy of late Madam Lydia Elikwu.

In compliance with the rules of this court, briefs of argument were filed and exchanged. In the appellant’s brief five issues were formulated for the termination of the appeal. The issues are:

(1) Whether the trial Judge was right in following or preferring an earlier statement made in an unconcluded case (i.e. A/3177) by PW2 as against his developed evidence in the present case (A/32/86) that No.5, Marine Road, Cable Point, Asaba is the property of late Madam Lydia Elikwu.

(2) Whether the learned trial Judge was right in relying heavily on the evidence of DW2 and DW3 in the presence of heavy contradictions.

(3) Whether the learned trial Judge was right in awarding to defendant a relief she did not seek.

(4) Whether the learned trial Judge was right in his appraisal and evaluation of the totality of evidence adduced from the trial and before him.

(5) Whether the plaintiffs (appellants) proved their case on balance of probabilities or are not entitled to judgment.

On the other hand, the respondent formulated the following issues for determination, viz:

(1) Was the failure of the lower court to make findings and pronounce on the other alleged properties of the testatrix, late Madam Lydia Elikwu an error in law which occasioned any injustice or grave miscarriage of justice in the circumstances of this case?

(2) Corroboration or want of corroboration of the acquisition of the land in 1943 a legal necessity and occasioned miscarriage of justice in this case?

(3) Did the plaintiff discharge the onus of proof that the landed property known as No.5, Marine Road is the property of the testatrix late Madam Lydia Elikwu?

(4) Did the trial Judge properly evaluate and appraise the competing claims of the parties before preferring the case of the defendant and her witnesses to that of the plaintiff’s and their witnesses?

(5) Was the decision of the trial Judge supported by evidence on record?

It is observed that, the respondent incorporated into his brief of argument a notice of preliminary objection. In the said notice, this court was called upon to consider the fact that even though there were two plaintiffs in the suit, only one plaintiff appealed, entered into a bond to prosecute the appeal and that the notice of appeal from which this appeal emanates from is signed by the 1st plaintiff/appellant alone.

It is also submitted that no issue appeared to have been formulated from grounds of appeal Nos. i, iv, and v. It is the view of the learned counsel that since there were no issues formulated there from, argument could not legally have been proffered in respect of them. It is argued that since only proper issues emanating from grounds of appeal are argued and not the grounds themselves those grounds are deemed abandoned. It is therefore submitted that since no argument are contained in the appellant’s brief, it will not be proper for the respondent to agitate issues more than what the appellant intended. Learned counsel referred to the following cases, SHA (Jnr.) & Ors. v. Kwan & Ors. (2000) 78 LRCN 1645 at 1664: (2000) 8 NWLR (Pt. 670) 685 Dantata & Anor. v. Mohammed (2000) 78 LRCN 1459-1460; (2000) 7 NWLR (Pt. 664) 176. We were asked to strike out or dismiss the said grounds of appeal.

It is also submitted that no proper issue can be raised from ground of appeal No. iv because it is not competent in this appeal. It is argued that the other alleged properties of the testatrix were not claimed in the amended writ and the amended statement of claim and that issues were not joined in the amended statement of defence apart from the disputed inventory exhibit H. It is submitted that the lower court could not be held to be wrong to have no finding on issues not before it. That the ground is raised invacuo and it is incompetent and we were urged to strike it out.

Suffice it to say, that no reply brief has been filed by the appellants in response to the preliminary objection raised by the respondent. The legal implication of the failure to file reply brief is that he is deemed to have conceded to the points raised. Where an appellant fails to file a reply brief where it is necessary to do so as in the instant case, he will be deemed to have conceded all the points raised in the preliminary objection from the respondent’s brief. See Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Orah v. Nyam (1992) 1 NWLR (Pt. 217) 279. Be that as it may, I have a duty to consider the legal position of the objections raised. The first objection challenged the competence of the 2nd appellant to prosecute the appeal. That only the 1st appellant entered into a bond to prosecute the appeal and that the notice of appeal was signed by the 1st appellant alone.

Order 3 rule 2(1) of the rules of this court provides:

“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ”the notice of appeal”) to be filed in the registry of the 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”.

Order 3 rule 5 further provides:

“An appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the court below”.?

In the instant case, the 2nd plaintiff/appellant whose name is now sought to be struck out by the respondent, Benedict Anwuzia Elikwu was joined in the suit at the instance of the 1st plaintiff/appellant vide a motion dated 9/2/89. The 2nd appellant, under the Last/Will and testament of late Madam Lydia Elikwu, was the sole beneficiary of the testatrix estate. He was accordingly so joined by order of court made on the 14/2/89. He filed a statement of claim. He testified and participated in the proceedings before the trial court to the end. He does not seem to have a separate representation from the record of the court different from that of the 1st plaintiff. In the notice and grounds of appeal, the name of the 2nd appellant clearly appeared and referred to as such and they were both referred to as plaintiffs/appellants. In every page of the record where the names of the parties appear, the name of the 2nd plaintiff is reflected as the 2nd plaintiff. It is observed that the bond entered into for the prosecution of the appeal does not reflect the name of the 2nd plaintiff therein.

The question is, in the circumstances of this case, is the failure of the 2nd plaintiff to personally execute a bond for the prosecution of the appeal sufficient to bar him from the prosecution of same?. It is observed that the 2nd plaintiff was joined in the suit at the instance of the 1st plaintiff who was represented throughout the trial by a legal practitioner. It is the 1st plaintiff’s counsel who signed the bond and not the 1st plaintiff in person. The fact that the 2nd plaintiff did not sign the bond does not vitiate his capacity to prosecute the appeal. It is my view that the objection on this ground is merely technical for in any case, the court in certain circumstances waive non compliance with the rules or any rules of practice, see Order 7 rule 3(1) of this court. Furthermore, it is the function of the court to ensure that in all cases substantial justice is done without having due regard to technicalities. See Okegbu v. State (1979) 11 SC 71 at 86 and Apon v. Fayemiwo (1969) 1 NMLR 233 at 235. This objection is over ruled.

It is argued by the respondent that since there were no issues formulated from grounds of appeal Nos. i, iv and v, they should be struck out or dismissed. An issue for determination in an appeal is a substantial question of law or of fact or both arising from the grounds of appeal filed in the appeal, which when resolved one way or the other will affect the result of the appeal. See Chief lmonikhe & Ors. v. A.-G., Bendel State & Ors. (1992) 6 NWLR (Pt. 248) 396; Ngilari v. Mothercat Ltd. (1993) 8 NWLR (Pt. 311) 370. Where no issue is formulated in respect of a ground of appeal and the appellant fails to pursue to or canvass argument in his brief on the ground of appeal, such ground of appeal would be deemed to have been abandoned and would therefore be struck out by the appellate court. The Supreme Court in Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 said per Ogwuegbu, JSC, at page 138 that,

“No issue was formulated in respect of ground 7. In the circumstances, the Court of Appeal should have struck out ground 7 of the grounds of appeal as having been abandoned”.

See also Oniah v. Chief Onyia (1989) 1 NWLR (Pt. 99) 514 and Niger Progress Ltd. v. North East Line Corp. (1989) 3 NWLR (Pt. 107) 68.

I have carefully perused through the appellant’s notice and grounds of appeal and the appellant’s brief of argument and I agree with the learned respondent’s counsel that no issues appeared to have been formulated by the appellants in respect of grounds i, iv and v of the appellant’s grounds of appeal. The grounds are hereunder stated:

(i) The learned trial Judge erred in law in deciding on an issue that was not in any contest.

(iv) The learned trial Judge erred in law and in fact not making any specific pronouncement or finding in respect of other properties or chattels late Madam Lydia Elikwu had during her life time, irrespective of No.5, Marine Road, Cable Point Asaba.

(v) The learned trial Judge erred in law to have relied on exhibits ‘D’, ‘M’, ‘N’ and ‘P’ as indicative of the literacy of late Madam Lydia Elikwu.

The essence of filing grounds of appeal is to bring to the fore the real complaint of the appellant against the judgment appeal against. As no issues are formulated on the said grounds filed, they are therefore deemed abandoned and are accordingly struck out.

Since no arguments are contained in the appellant’s brief, it is not for the respondent to proffer arguments thereon. Sha (Snr.) & Anor. v. Kwan (2000) 78 LRCN 1645, (2000) 7 NWLR (Pt. 664) 176 and Dantata & Anor. v. Muhammed (2000) 78 LRCN 1422, (2000) 8 NWLR (Pt. 670) 685.

It is also contended by the respondent’s counsel that issue No. 3 in the appellant’s brief is not covered by any of the grounds of appeal and argued that same be struck out. I think I agree with him. I have carefully considered issue No.3 as formulated by the appellant. It is, “whether the learned trial Judge was right in awarding to defendant a relief she did not seek”. This issue is not covered by any of the grounds of appeal as earlier reproduced in this judgment. Issues for determination must be formulated from the grounds of appeal. They must be based on, related to or arise from the grounds of appeal. In Idika & Ors. v. Erisi & Ors. (1988) 2 NWLR (Pt. 78) 563 the Supreme Court per Nnaemeka Agu, JSC, held at pages 79 that issues or questions for determination are framed from the grounds of appeal properly before the court. They do not arise in nubibus from the skies. Also in General Oil Ltd. v. Chief Ogunyade (1997) 4 NWLR (Pt. 501) 613 it was held that, issues formulated by a party for determination in an appeal which do not arise out of the grounds of appeal will be deemed irrelevant and will not be countenanced in the determination of the appeal. Based on the above, I too will not countenance issue No.3 in the instant case as it is irrelevant as it does arise out of the grounds of appeal filed before the court.

Having disposed of all the preliminary issues raised in this appeal I will now turn to the appeal proper. Learned counsel for the appellants has formulated five issues for determination in this appeal. Appellant’s ground of appeal number i, iv and v have been struck out because no issue appears to have been formulated by the appellant from the said grounds of appeal out of the five issues formulated for determination. Issue three (3) has been discountenanced as it was not covered by any of the grounds of appeal filed.

In the determination of this appeal, I will adopt the issues as formulated by the respondents with little modification. It appears to me that the respondent’s issue number one arose from ground of appeal No. iv which has been struck out on the ground that no issue has been formulated by the appellant therefrom. The reason being that the other alleged properties of the testatrix were not claimed in the writ of summons and the amended statement of claim and that no evidence was led on them. It is therefore discountenanced. Since the appellants’ issue Nos. 1, 2 and 4 are subsumed into the respondent’s issue No. 3.04 and also appellant’s issue No.5 is also covered by the respondent’s issue No. 3.03, the appeal will be considered as such.

It is also contended by the learned counsel for the respondent that the appellant appeared to confuse appraisal and evaluation of evidence and corroboration as appeared on page 2, 3(2) of the brief. That since the appellant formulated no issue on ground 2 of the grounds of appeal, the ground is deemed abandoned and should be dismissed and since he argued an issue he did not formulate, his said argument should be ignored as being without basis.

I have carefully considered the appellant’s ground No.2 of the grounds of appeal and the issues formulated by the appellant. I do not agree with the respondent’s counsel that no issue has been formulated in respect of ground No.2. It is my considered view that ground 2 of the grounds of appeal can be linked to issue 2 formulated for determination. It is therefore a proper and valid ground, it is on the issue of corroboration. Both ground No.2 and the issue formulated there under are valid and competent and so find.

I have also considered the appellant’s issue one (1) for determination which is:

(1) Whether the trial Judge was right in following or preferring an earlier statement made in an unconcluded case (i.e. A/3/77) by PW.2 as against his developed evidence in the present case (A/32/86) that No.5, Marine Road, Cable Point, Asaba is the property of late Madam Lydia Elikwu.

The arguments canvassed in the appellant’s brief relate to the issue of estoppel. There is no where in the judgment of the lower court that he applied the principle of estoppel in deciding the matter before him and the issue does not arise whatsoever from the proceedings before the trial court. The fact that a witness testified in respect of a suit he instituted in 1977 and in the instant case, in which he testified as witness with the regard to the same subject matter does not necessarily mean that estoppel applies and the lower court did not make such a pronouncement. This issue being not covered by any of the grounds is irrelevant is hereby discountenanced.

Arguing issue No.2, learned counsel for the appellant submitted that there is no corroboration in the conflicting evidence of DW 2 and DW 3. Learned counsel defined what corroboration means and reviewed the evidence of DW 2, DW 3 and the appellant/respondent and submits that the trial Judge wrongly held that there is corroboration in the evidence of DW 2, DW 3 and the respondent.

It is submitted for the respondent that corroboration is not legally necessary in this case. Learned counsel referred to sections 177, 178 and 179 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, that there is no particular number of witnesses required for the proof any fact. It is submitted that the issue before the lower court was as to the ownership of No.5, Marine Road, Asaba in a civil case, whether it is owned by the testatrix Madam Lydia Elikwu or the father of the defendant Mr. Anthony Ojinma Elikwu. Learned counsel referred to a book, Law and Practice to Evidence in Nigeria (Sweet & Maxwell, 1980) by Aguda page 336, paragraph 2004, and submitted that corroboration is not legally required in the instant case as no provision of the law has been breached to warrant the setting aside of the judgment of the trial court.

Learned counsel referred to the evidence of DW2 and DW3 and submitted that the learned trial Judge did not say that the evidence of DW3 corroborated that of DW.2. Learned counsel referred to the finding of the learned trial Judge from the record at pages 234 and submitted that the learned Judge held that the defendant’s evidence of her father’s acquisition of the land in 1943 was corroborated by DW.2 and DW.3 respectively. It is further submitted that there are evidence from both DW.2 and DW.3 supportive of the root of title to 5, Marine Road Asaba, subsequent acquisition by the defendant’s father and the building of the house by the testatrix for and with the funds of the defendant’s father. It is further submitted that there are no material conflicts or contradictions between the defendant’s evidence of those of DW2 and DW3. It is submitted that the mere fact that DW3 said he was not around when defendant’s father gave drinks to the Umuezie people does not deprive him of still being able to be known as an Asaba man, nor does it translate to a material contradiction, nor does the fact that DW2 knows the defendant’s father by one of his first names ‘Ojinma’ and not by his English name ‘Anthony’ amount to any material contradiction.

The crux of the appellant’s complaint on this issue is the finding by the trial court that the evidence of DW3 corroborated the evidence of DW2 in all material particulars despite the conflicting nature of their evidence before the trial court. This is what the trial court said while reviewing the evidence of witnesses adduced before it, particularly that of DW2 and DW3 at pages 228 and 229 of the record of appeal after a review of the evidence adduced by the witnesses for the plaintiff.

“DW 2 was Right Reverend Doctor Thomas Okoli and he corroborated the evidence of the defendant in all material particulars as to how the defendant’s father acquired the land and built on it. Under cross examination, he said that he was a tenant and paid his rents to the defendant”.?

“DW 3 was Conelius Ofili Obionem and he also corroborated the evidence of the defendant as to how her father acquired the land and built the house on it. Under cross examination he said on one occasion the father of the defendant sent the sum of 25 pounds through him to late Madam Lydia Elikwu for the building of the house when he was coming from Zaria to Asaba”.

The trial court went on to find at page 234 of the record that, “Her evidence that her father acquired the land in 1943 was corroborated by the evidence of DW2 and DW3 …in all material particulars …”?

Corroboration as defined by the appellant in his brief of argument on page 6-7, from Blacks Law Dictionary, Sixth Edition at page 334 means:

“To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence” and, “the testimony of witnesses is said to be corroborated when it is shown to correspond with the representation of some other witnesses, or to comport with some facts otherwise known or established”.

The definition above is very clear. What in effect the trial Judge means is that the testimonies of the defendant/respondent correspond with the presentation of the evidence of DW2 and DW3 in material particulars which means on essential points germane to the determination of the issue before it. That, the evidence of the defendants is strengthen by the additional evidence of DW2 and DW3.which added credibility to evidence adduced by the defendant”.

Now the question is, what are the alleged conflicts or contradictions in the evidence of DW 3 as argued by the appellants?

The appellant has not specified or identified any of the alleged conflicts or contradictions in the evidence of DW2 and DW3 in his brief. However, learned respondent’s counsel reviewed the evidence of the DW.2 and DW.3 as adduced before the trial and submitted that there are no material conflicts or contradiction between the defendant’s evidence and those of DW2 and DW3.

The defendant/respondent in her testimony before the trial court gave evidence supportive of her root of title to No.5, Marine Road, Asaba. The subsequent acquisition by the defendant’s father and the building of the house by the testatrix for and with the funds of the defendant’s father. The defendant testified that the land was, originally occupied by one Ojogwu. Late Anthony Elikwu got the land from Ojogwu and that the land in which the house was built was formally owned by Ojogwu who sold it to Ojinma. The defendant testified that after the acquisition her father gave the testatrix a notebook to record the expenses of the building as he was sending her money for the building. The notebook was admitted in evidence as exhibit ‘B’. DW3 stated on his evidence that the defendant’s father was sending money from Zaria to the testatrix to build the house for him. That on one occasion he sent the sum of 25 pounds through him to late Madam Lydia Elikwu for the building of the house and when he got home he gave the money to late Madam Elikwu.

The records of the court are replete with evidence supportive of the defendant’s case as to the acquisition of the land and the building of the house known as No.5, Marine Road, Asaba. In the circumstances, therefore I agree with the submission of the respondent’s counsel that there are no material conflict or contradictions between the defendant’s evidence and those of DW2 and DW3. The mere fact that DW3 said he was not around when defendant’s father gave drinks to the Umuezei people does not translate to material contradiction as to vitiate the proceedings in the instant appeal, nor does the fact that DW2 said he knows the defendant’s father by one of his names ‘Ojinma’ and not by his English name ‘Anthony’ as to amount to a material contradictions.

For contradiction in evidence of witnesses to vitiate the proceedings, it must be a material contradiction which strike at the basis of the case and sufficient to raise doubt in the mind of the court and not merely trivial. This issue is therefore resolved against the appellant.

The next issue is whether the learned trial Judge properly evaluate and appraised the competing claims of the parties before preferring the case of the defendant and her witnesses to that of the plaintiffs and his witnesses?

It is submitted for the appellants that the trial Judge wrongly accepted the evidence of the defence. That the appellant has established a preponderance of probability or balance of probabilities in his favour. It is submitted that it is the duty of a trial Judge to evaluate relevant and material evidence and decide the issues raised on the pleadings before him and that in the instant case, the trial Judge has come to a wrong conclusion without properly evaluating the evidence before him citing the following cases: Akibu v. Opoleye (1974) 11 SC 180 at 203 and Olusanya v. Olusanya (1980) AC 105, (1983) 1SCNLR 134. We were urged to resolve the issue in favour of the appellant.

For the respondent it is submitted that the trial court discharged its duties in the proper appraisal and evaluation of the parties claims.

That where the claims of the parties are competing and conflicting, the pleadings have to playa role and the oral testimonies of the parties and their witnesses have to be tested with the content of the documentary evidence and the demeanor of the witnesses. It is also submitted that it is the duty of an appellant who alleges improper evaluation of evidence to demonstrate from the records how relevant, material evidence were ignored, misplaced or not accorded their due weight by the trial Judge. It is submitted that the appellant at page 8 of his brief has failed in this duty. It is also submitted that wrong evaluation and appraisal of evidence is different from wrong admissibility of evidence argued in paragraph 2 of page 8 of the appellant’s brief of argument. It is contended that it is the appellant’s duty to demonstrate from the record how the trial Judge erred and the impact of such error as occasioning grave miscarriage of justice.

That the case of Akibu v. Opeleye (supra) does not support the complaint of the appellant which deals with unchallenged evidence before a trial court.

I have considered the submission of both counsels on this issue.

Evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which saw, heard and duly assessed the witnesses. Where a trial court unquestionably evaluates the evidence and justifiably assesses the facts, the duty of the Court of Appeal is to find out whether there is evidence on record on which the trial court could have acted, once there is sufficient evidence on record from which the trial court arrived at its findings of fact, the Court of Appeal cannot interfere.

The findings of fact made by a trial court are entitled to respect by an appellate court when it is clear that the trial court has adequately performed its primary duty of evaluating and ascribing probative values to the evidence before it. See Enang v. Adu (1981) 11-12 SC 25; Woluchem v. Gudi (1981) 5 SC 291; Joe Goiday Co. Ltd. v. CD.B. Plc. (2003) 5 NWLR (Pt. 814) 586 and Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt.825) 337.

In the instant appeal, the trial court identified the issues that calls for determination and reproduced the relevant pleadings of both sides on the issue and appraised the evidence of the plaintiffs/appellants witness Chief James Iloba George Onyia. The trial court found that this crucial witness evidence as to the vital issue of acquisition of title was at variance with the pleadings. His evidence is contrary to the other witnesses on this issue. The trial court also found that though he claimed to have sold the property in dispute, he did not prove his root of title or the custom under which he inherited from his late brother when he said he inherited his responsibility. The trial Judge also considered the evidence of other witnesses and come to the conclusion that the appellants have failed to prove that No.5, Marine Road, Asaba belongs to late Madam Lydia Elikwu. Based on the foregoing, it is my view that the trial court properly evaluated and appraised the evidence adduced before it by the parties and its findings are not perversed. There is enough evidence on the record from which trial court’s findings can be supported. This issue is also resolved against the appellants.

The next issue for determination is whether the plaintiffs have discharge the onus of proof that the land property known as No.5, Marine Road, is the propel1y of the testatrix, late Madam Lydia Elikwu. The appellant’s equivalent issue is whether the plaintiff/appellants proved their case of balance of probabilities. Unfortunately, no argument was advanced in the appellant’s brief on this issue. The issue having not been argued is deemed abandoned.

It would therefore be an academic exercise to dwell into it as argued in the respondent’s brief.

Finally, having resolved the issues raised in the appeal against the appellant, the appeal fails and it is hereby dismissed. The judgment of the lower court delivered on the 11/2/94 is hereby affirmed. The respondents are entitled to cost which I assess at N3,000.00 only.

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Other Citations: (2005)LCN/1767(CA)

Oboh Monday Osalumhense V. Peter Agboro (2005)

LawGlobal-Hub Lead Judgment Report

ABBA AJI, J.C.A.

By a motion on notice brought pursuant to Order 3 rules 4(1) and (2) of the Rules of this Court, the applicant prayed this court for the following orders:

“(1) Extension of time within which to apply for leave to appeal against the judgment of the Warri High Court in Suit No.W/136/2004;

(2) Leave of this Court to appeal against the said judgment;

(3) Extension of time within which to appeal against the said judgment;

and for such order or other orders as this court may deem fit to make in the circumstances.”

The application is supported by a 15-paragraph affidavit deposed to by the applicant himself, Oboh Monday Osalumhense. Arguing the application, Ainerua, Esq. for the appellant relied on the paragraphs of the supporting affidavit and the annextures thereto and urged us to grant the application. He submitted that they have attached several exhibits in support of their application and they have explained the reasons why they are late as contained in paragraphs 3-14 of the affidavit in support.

He continued that the reasons purely is inadvertence of counsel which cannot be visited on the litigant citing Impresit Bakolori Plc. v. Abdulazeez (2003) 10 Federal Reporter 246; (2003) 12 NWLR (Pt.834) 307.

The learned respondent’s Counsel, Tudje, Esq. opposed to the application being granted and to that extent he submitted, they have filed a 13-paragraph counter-affidavit and that they are relying on all the paragraphs of the affidavit and the annexture thereto being exhibit ‘A1’, a certified true copy of notice and grounds of appeal earlier filed by the applicant before the lower Court and which has not been referred to by the applicant in his application. He contended therefore that this application is an abuse of the process of this court, that exhibit ‘DD’ annexed to the applicants supporting affidavit is intended to mislead the Court, the applicant having already filed a notice and grounds of appeal on the 18/1/2005 before bringing the present application for leave to appeal. Learned Counsel referred to Order 3 rule 5 of the Rules of this court and submitted that an appeal is deemed to have been filed when the notice and grounds of appeal have been filed in the Registry of the lower court. He urged us not to grant the application.

In his reply to the learned respondent’s submission, Mr. Aineru for the applicant submitted that, exhibit ‘A1’ was filed out of time and it is a worthless document and there is no need to bring it before the court as it is not relevant to the application.

In an application of this nature, what the law stipulates are as provided by Order 3 rules 4(1) and (2) of the Rules of this court: –

“4(1) The Court may enlarge the time provided by these rules for the doing of anything to which these rules apply;

(2) Every application for an enlargement of time in 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.”

By the above provision, the court may enlarge the time provided by the rules for the doing of anything to which the rules apply. However, every application for an enlargement of time in which to appeal must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and by the grounds of appeal which prima facie show good cause why the appeal should be heard. Thus, the fundamental requirements for the grant of an application for an extension of time within which to appeal are:

“(a) good and substantial reasons for failure to appeal within the prescribed period; and

(b) grounds of appeal which prima facie show good cause why the appeal should be heard.

The two requirements must co-exist, that is, both must be satisfied at the same time. If one is satisfied and the other is not satisfied; such an application is lacking in merit and cannot be granted. See Ibodo v. Enarofia (1980) 5 -7 Sc. 42; Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 2 NWLR (Pt. 77) 383. In the instant application, the applicant averred particularly in paragraphs, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12 and 13, the circumstances of his failure to file the appeal within the prescribed period. The paragraphs states:

“(2) That I know as a fact that the High Court of Justice, Warri presided over by the Honourable Justice P.O. Onajite-Kwejubola (Mrs.) entered judgment in default in favour of the respondent herein against the applicant herein suit No. W/136/04 on 4th August, 2004. Attached herein and marked exhibit AA is a copy of the said judgment.

(3) That the said judgment entered against the applicant herein was as a result of the fact that my counsel refused and/or neglected to file notice of intention to defend on the returned date, i.e. 4th August, 2004.

(4) That on the 4th day of August, 2004, when the matter came up for hearing, my former counsel, C.D.S. Omon-Irabor, Esq. was not personally present in court but instead brought a letter for adjournment on the condition that he had an urgent matter at the Sapele High Court 1, Sapele, even though the applicant had paid part of the fees charged and more disappointingly is the fact that the said counsel received from me transportation fee to appear in court that morning.

Attached and marked exhibit BB & CC respectively is a copy of the said adjournment and part payment of the fees charged by counsel.

(5) That my counsel informed me strongly that he will be in court on the said date, but I was surprised that he did not come to court, but had to write for an adjournment.

(6) That on the said date, I however made attempts to explain my predicament, but before I knew it, judgment had been delivered against me.

(8) That because of the negligence of the applicant’s former counsel, the applicant debriefed the said C.D.S. Omon-Irabor and briefed the chambers of Obafemi Ainerua, Esq. to take over the prosecution of the matter.

(9) That it took about 3 months to get the file from the said C.D.S. Omon-Irabor and by which time allowed to file notice of appeal had lapsed as contained in the rules of this Honourable Court as said by counsel.

(10) That I know as a fact that the time allowed by both statutes and the rules of this Honourable Court for me to appeal against the judgment of the lower court has since lapsed, hence this application has become necessary.

(11) That the documents now shown to me and marked exhibit DD is a copy of the proposed notice and grounds of appeal which raises substantial and arguable grounds of appeal.

(12) That the applicant has applied for records of proceeding at the lower Court and same will be transmitted to this Honourable Court.

(13) That failure to file the notice of appeal within time was basically due to the fault of my counsel C.D.S. Omon-Irabor, who refused to diligently prosecute my matter and also deliberately refused to send the file to my new counsel Obafemi Ainerua, Esq. to enable him prepare the necessary papers.”

The above depositions are self explanatory. The delay in bringing the application within the prescribed period is basically the inadvertence of the applicant’s former Counsel.

The main grudge of the respondent against the grant of the application is as averred in paragraphs 8, 9, 10, 11 and 12 of the counter-affidavit. The paragraphs are hereby reproduced.

“(8) That when the defendant/applicant later realised that he ought to file an appeal on the 18/1/2005, the defendant/applicant filed his notice and grounds of appeal. A certified true copy of the notice and grounds of appeal is herein annexed and marked as exhibit A1.

(9) That exhibit DD annexed to the defendant/applicant affidavit in support of motion is to mislead this Honourable Court having already filed his notice and grounds of appeal on 18/1/2005, before bringing the application for leave to appeal.

(10) That this present application brought by the defendant/applicant is an abuse of the processes of this Honourable Court.

(11) That the grounds of appeal as couched by the defendant/applicant are frivolous and does not raise any arguable appeal.

(12) That the defendant/applicant has already filed his notice and grounds of appeal and it is in the interest of justice that this application be dismissed with cost.”

A close look at the deposition above reveals to me that since the applicant has filed his notice and grounds of appeal on the 18/1/2004, which is annexed as exhibit A1, it is not for the applicant now to file this application without disclosing the fact of his earlier application to the court. That since the applicant has filed a similar application before the lower court, this application is misleading and abuse of the process of court. It is therefore frivolous and should not be granted by the court.

Where time within which to appeal expires, the court whose decision is sought to be appealed against has no power to extend time within which to appeal to the court to which an appeal lies. It is the sole discretion of the appellate court to either extend the time to appeal or to grant an extension of time to seek leave to appeal. See Mba v. Ibe (1999) 4 NWLR (Pt.597) 97 and Onuorah v. Ibe (1996) 9 NWLR (Pt. 474) 624. By virtue of Order 3 rule 3(4) of the Rules of this court, wherever under the rules an application may be made either to the court below or to the Court of Appeal, it shall not be made in the first instance to the Court of Appeal except where there are special circumstances, which make it impossible or impracticable to apply to the court below. Therefore, an applicant seeking leave to appeal against the decision of the High Court must first file his application for such leave at the High Court.

In the instant application, the applicant filed his application first to the lower court exhibit A1, but was filed out of time. The lower court therefore had no power to extend the time within which to appeal. The non disclosure of this fact by the applicant in his supporting affidavit does not by itself render the application frivolous or an abuse of court process. Since at the time this application was filed in the lower court, the court was clearly without power to extend time. The said exhibit A1 even if attached to the application is of no material value to the grant of the application before the court. It is irrelevant even if brought to the notice of the court as it is not an issue to be considered in the grant of an application of this nature.

The failure therefore to state this fact and attach the notice and grounds of appeal exhibit A1 to the application cannot debar the applicant the right to present this application. To deny the application on this ground will be leaning more on the side of technicality. It must be remembered that our courts have deliberately shifted away from the narrow technical approach to justice which characterized some earlier decisions of this court. Instead, the courts now pursue the course of substantial justice. In an application of this nature, an applicant is expected to satisfy the court by virtue of Order 3 Rule 4(2) that in addition to the reasons for delay, the grounds of appeal must prima facie show good cause why the appeal should be heard.

In other words, the facts averred in the supporting affidavit must be considered along with the grounds of appeal to be filed in order to determine whether or not the court should indulge the applicant. I have already reproduced the relevant paragraphs of the applicant’s supporting affidavit in this application. The applicant’s reasons for delay was the refusal and or neglect of his former counsel to file a notice of intention to defend the suit filed against him under the undefended list and his failure or neglect to appear in court on the returned date but only to send a letter to the court and judgment was there and then entered against him despite his presence in the court.

The counsel was debriefed and the process of handing over of documents took a longer time. Generally, a party in litigation should not be penalised for mistakes of his counsel. See Agu v. Ayalogu (1999) 6 NWLR (Pt. 606) 205 and Bowaje v. Adediwura (1976) 6 SC 143 and Impresit Bakolori Plc. v. Abdulazeez (supra).

A look at exhibit ‘DD’ the proposed notice and grounds of appeal shows that the grounds if they are proved are substantial and raise arguable points of Law. For example ground 1 reads: –

“The learned trial Judge erred in law, when she refused to honour the letter of adjournment written by the defendant’s counsel thereby denying the defendant fair hearing in the matter.”

In my view, if it is true that the defendant’s counsel wrote a letter for an adjournment on the said date explaining his absence and that the defendant was in court and wanting to explain himself, but was not given the opportunity, then the reason for the appeal is good and substantial.

From the affidavit evidence and the grounds of appeal, I am satisfied that: –

“(1) The delay in bringing the application is neither willful nor inordinate;

(2) There are good and substantial reasons for failure to appeal within the period statutorily prescribed; and

(3) The proposed grounds are substantial and raise arguable points.

Based on the foregoing, it is my view that the application shall be and it is hereby granted as follows:

“(1) Time is extended to the applicant today to appeal against the judgment of the Warri High Court in suit No. W/136/2004.

(2) Leave is granted the applicant to appeal against the said judgment.

(3) The applicant is given 21 days from today to appeal against the said judgment.”

I make no order as to costs.

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Other Citations: (2005)LCN/1766(CA)

Chief Adebayo Adefarati V. Governor of Ondo State & Ors (2005)

LawGlobal-Hub Lead Judgment Report

AMAIZU, J.C.A.

This is a motion on notice praying the court for the following reliefs –

“i) An order of injunction restraining the 3rd-9th defendants/respondents either by themselves, agents, privies, servants, or through any person or persons howsoever from sitting or further sitting, preparing a report or further preparing a report, making recommendation or further making recommendation, submitting a report or recommendation in respect of its sitting or investigation or enquiry to the 1st and 2nd respondents until the final determination of:

(a) The appeal filed by the plaintiff/applicant against the ruling of the lower court dated 11th November, 2004 refusing the appellant’s prayer for injunction.

(b) The final determination of the weighty constitutional questions referred to the Court of Appeal.

(ii) An order of injunction restraining the 1st and 2nd defendants/respondents either by themselves, agents, privies, servants or through any persons however from considering or acting upon or executing or causing to be executed, implementing or causing (particularly against the appellant/applicant herein the report or recommendation of the 3rd-9th defendants/respondents (whether already submitted or not) pending the final determination of:

(a) The appeal filed by the plaintiff/appellant/applicant against the ruling of the lower court dated 11th November, 2004.

(b) The final determination of the constitutional question referred to the Court of Appeal by the lower court, on 11th November, 2004.

(iii) An order accelerating the hearing of the substantive case as referred to the Court of Appeal by the lower court, as well as the substantive appeal on injunctive reliefs.

(iv) And for such further order(s) as this Honourable court may deem fit to make in the circumstances.”

The motion is brought pursuant to order 3 rule 3 (1) of the Court of Appeal rules. And it is supported by an affidavit of twenty-nine paragraphs. The relevant paragraphs of the affidavit are:

“5. I know as a fact that an originating summons with a supporting affidavit and exhibits as well as a motion on notice with affidavit in support and exhibits were filed contemporaneously on 13/08/04 by the applicant before the lower court.

6. I know as fact that all processes filed in this case before the lower court were served on the respondents herein on 20th August, 2004. Now shown to me, attached herewith and marked as exhibits 1,2,3 and 4 are copies of the affidavit of service respectively.
7. I know as a fact that the appellant/applicant herein was the Governor of Ondo State between May, 1999 and May, 2003 having been elected into the office under the platform of the Alliance for Democracy (AD).
8. The appellant/applicant and the 1st defendant/respondent contested the Governorship election in Ondo State in 1999 and he defeated him.
9. 15t defendant/respondent contested the same Governorship seat with the appellant/applicant in April, 2003 and won.
10. 2nd defendant/respondent is the Chief Law Officer of Ondo State, while the 3rd defendant was set up by 1st defendant/respondent by an instrument dated 6lh July, 2004. Now shown to me, attached herewith and marked as exhibit 5 is a copy of the Instrument setting up the 3rd defendant.
11. .The 4th, 5th, 6th, 7th, 8th and 9th defendants are members of the 3rd defendant.
12. The 4th defendant is a Judge of the High Court of Ondo State, while the 5th defendant is a Professor of Law and Dean, Faculty of Law of Adekunle Ajasin University, Akungba-Akoko, Ondo State.
13. Appellant/applicant informed me and I verily believed as follows:

(i) Before issuing exhibit 5, 1st defendant/respondent had inter alia set up a Contract Review Committee which roundly condemned him and his administration for diverse malpractices without giving them any opportunity to be heard.

(ii) All items contained in exhibit 5 are the same with those already looked into by the Contract Review Committee.

(iii) Each of the subjects mentioned under paragraph 2 (i) (ii) and (iii) of exhibit 5 is regulated by valid and subsisting contracts entered into by the Ondo State Government and the respective contractors and or companies.

(iv) Each of the said contracts has a provision stipulating that any dispute or disagreement arising there from shall be referred to arbitration.

(v) The sum of N560,000,000.00 (Five Hundred and Sixty Million Naira) referred to under paragraph 2(iv) of exhibit 5 relates to classified security votes expenses incurred by the applicant as the Chief Executive of Ondo State.

(vii) A Chief Executive is not expected to make public to any Commission of Inquiry or to any person how he spends security votes.

(viii)- Item 3(d) of exhibit 5 empowers the Commission of Inquiry to recommend sanctions against’ the applicant and his government in respect of the matter listed in exhibit 5.

(ix) As the Chief Executive of Ondo State, applicant was the Chief Security Officer as well.

(x) As Governor of the state, applicant was also the one who had the final say in respect of the matter listed in exhibit 5.

(xi) The setting up of the Commission of Inquiry was done purposely to indict the applicant and his administration.

(xii) Exhibit 5 does not contain:

(a) The venue of sitting of the said Commission;

(b) The time of sitting of the said Commission;

(c) The time limit within which the Commission is to submit its report;

(d) The secretary to the Commission.

(xiii) Further to sub-paragraph (xii) supra, appellant/applicant and members of his executive council are confused as to the particulars enumerated in sub-paragraph (xii) above.

(xiv) Exhibit 5 has been deliberately couched the way it is to put the applicant and his associates under an indefinite investigation and harassment.

(xv) Before assuming the office of Governor on 29th May, 1999, the applicant took an Oath of office as prescribed by the Constitution not to divulge or communicate to anybody some secrets relating to his duties as Governor.

(xvi) Some of the secrets include how the applicant expended security votes and handled security matters of the state.

(xvii) Applicant has never been invited nor received any summons to attend any of the proceedings of the 3rd respondent.

14. I know as a fact that the applicant’s motion was slated for hearing on 15/10/2004 but had to be adjourned to 19/10/2004 on the application of the Honourable Attorney-General of Ondo State, D. I. Kekemeke Esq. who said that he did not prepare for same.
15. I also know as a fact that on the same 15/10/2004, the same Honourable Attorney-General of Ondo State, D.I. Kekemeke, Esq. told the court from the Bar and in my presence that the 3rd respondent had completed its public sitting.
16. Despite paragraphs 13 and 14 supra, 3rd respondent caused announcements to be made on the Ondo State Radio Corporation beginning from Friday, 15th extending to Saturday, 16th, Sunday, 17th and Monday, 18th October, 2004 compelling the applicant and his political associates to appear before it unfailingly on 28th October, 2004.
17. Applicant told me and I verily believed that the applicant and his political associates are the target of the respondents.
18. I know as a fact that arguments were taken in respect of the applicant’s motion on 19th October, 2004 by the lower court and the case was adjourned to 11th November, 2004 for ruling.
19. I know as a fact and by virtue of my position as counsel that the record of proceedings of the lower court has been transmitted to the Court of Appeal.
20. I know as a fact that in her ruling of 11th November, 2004 the lower court referred the constitutional questions to the Court of Appeal but refused the prayer for injunction. The said ruling on pages 224 to 237 of the record.
21. Being dissatisfied by the said ruling, appellant/applicant has appealed against same to this court. The notice and grounds of appeal are on pages 238 to 244 of the record.

In moving the motion, Chief Olanipekun, SAN, of counsel referred to the affidavit in support of the motion, and the counter affidavit of the respondents. He reminded the court that the lower court following his application before it, referred constitutional issues relating to the said application to this court.

According to the learned SAN, he showed his good faith by compiling the record of proceedings in the lower court within ten day after ruling of the court. He has also filed his brief of argument in respect of his appeal against the ruling. He challenged the constitutionality; the validity of setting up of the Commission of Inquiry by the 1st respondent. The learned SAN referred to the case of Senator Abraham Adesanya v. The President of the Republic of Nigeria & Ors. (1981) 2 NCLR 358 at 362. He submitted that when a matter is referred to the Court of Appeal by a High Court, the lowercourt should not make any pronouncement on the matter so referred, but should leave the matter to the appellate court to reach a decision, and make a pronouncement thereafter.

The learned SAN also referred to other cases including the following:

1. Obeya Memorial Specialist Hospital v. A-G of Federation (1987) 3 NWLR (Pt. 60) 325
2. Alhaji Danlami Zango v. Military Governor of Kano State (1986) 2 NWLR (Pt. 22) 409.
3. Doma v. Ogiri (1998) 3 NWLR (Pt. 541) 246.

He urged the court to protect the res. He referred to the originating summons in respect of the main suit. He reminded the court that it was filed on the 13th of August, 2004. That, notwithstanding, the authorities (respondent) went on with the commission of inquiry. He urged the court to grant the application.

In his reply, Akinrinsola, Esq. of counsel submitted that an interlocutory injunction is not a remedy for a completed act. He referred to paragraphs 1, 19 and 20 of the counter affidavit filed by the 1st to 9th respondents. He conceded that the motion on notice to restrain the 3rd – 9th respondents from sitting was filed on 13th August, 2004. It was argued on the 25th of October, 2004. The ruling was delivered on 11th of November, 2004. The commission of inquiry on the other hand, completed its work on 10th November, 2004. He referred to the following cases:

1. Chief Al Akapo & Ors. v. Aihaji H.A. Hakeem Habeeb & Ors. (1992) 6 NWLR (Pt. 247) page 266.
2. CCB (Nig) Plc. v. Okapalla (1997) 8 NWLR (Pt.518) 673.

He observed that the cases relied on by the learned SAN were decided in 1980 or thereabout. On the other hand, the cases he relied on were decided later. It is his view that the law is dynamic.

He reminded the court that there is no application for a mandatory injunction before this court. He referred to the case of Anyah v. ANN Ltd. (1992) 6 NWLR (Pt. 247) page 319. And further that there is an appeal against the ruling of the lower court for refusing to grant an interim injunction restraining the 2nd to 9th respondents. He advised that this court should be careful not to have two parallel rulings/judgments in respect of the same matter. He urged the court to refuse the application.

The law with respect to interim injunction has been aptly described by Coker, J.S.C. in the case of Ladunni v. Kukoyi (1972) 1 All NLR (Pt. 1) 133 as constituting one of the most difficult sections of our law. The difficulty exists not because the law is recondite but because the ascertained principle must be subjected at all times to rather amorphous combination of facts which are perpetually different in every case. It is now accepted that the object of an interlocutory injunction is to protect the applicant against injury by violation of his right for which he could not be adequately compensated on damages recoverable in the action, if the uncertainty were resolved in his favour at the trial. In the present case, at this stage, there can be no determination of the legal right of the applicant because pleadings have not been filed, no issue has been joined and no oral evidence adduced. There cannot therefore, be any findings on the merits. What is required at this stage, is not for the applicant to make out a case as he would do on the merits, it being sufficient that he should establish that there is a substantial issue to be tried at the hearing. (Kufeji v. Kogbe (1961) 1 All NLR 113.

It has to be remembered also that the applicant’s need for protection by way of an interlocutory injunction must be weighed against the corresponding need of the respondents to be protected against injury resulting from their having been prevented from exercising their legal rights for which they might not be adequately compensated in damages if the uncertainty were resolved in their favour at the trial.

In the present case, a Commission of Inquiry was instituted by the Governor of Ondo State. The affidavit evidence before us shows that when the originating summons was filed on the 13th of August, 2004, the inquiry if it had started sitting, has not completed its assignments. It was brought to the notice of the respondents through service on them of the present motion on notice on 20/8/2004, the existence of this application.

In this regard, I refer to the relevant paragraph of the counter affidavit. Paragraph 22 thereof reads:

“That the commission of inquiry had 3 months to conclude its investigation has completed the assignment and wound up since 10/11/2004.”

I entirely agree with the submission of the learned counsel for the respondent that an interlocutory injunction is not a remedy for a completed act.

The general practice, which has been sanctioned by our court, is that on an application for an order for an injunction, all activities affecting the res are automatically terminated as a mark of respect to the court before which the application is pending. If as in the present case, the respondents ignored the notice of the pending application of interlocutory injunction and continued as if nothing has happened, they cannot use their present illegal position to create a status quo. See Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) page 621.

It is to be remembered that an interlocutory injunction is an equitable remedy. He who comes to equity must come with clean hands. It is my view that the respondents cannot rely on the fact that the commission of inquiry has completed its assignment when their hands are not clean. This is more so as this court has to decide on the constitutional issues referred to it.

In my view, the applicant has established that there is substantial issue to be tried at the hearing including constitutional issues. Taking all the facts of this case into consideration, I hereby grant the application. It is the order of this court that:

“The 1st and 2nd defendants/respondents either by themselves, agents, privies, servants or through any person or persons howsoever, from considering or acting upon or executing or causing to be executed, implementing or causing to be implemented (particularly against the appellant/applicant herein the report or recommendation of the 3rd – 9th respondents (whether already submitted or not) pending the final determination of:

(a) The appeal filed by the plaintiff/appellant/applicant against the ruling of the lower court dated 11th November, 2004.

(b) final determination of the constitutional questions referred to the court on 11th November, 2004.”

I make no order as to costs.

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Other Citations: (2005)LCN/1765(CA)

Government of Kogi State & Ors V. Adavi Local Government Council (2005)

LawGlobal-Hub Lead Judgment Report

I.T. MUHAMMAD, J.C.A.

By an originating summons, the plaintiffs before the Kogi State High Court of Justice, holden at Okene (lower court) raised the following questions for determination –

“(i) Whether the 2nd defendant could purport to pass a bill creating additional local government in Kogi State without strict adherence to the provisions of sections 3(6), 7(1) & (2) and 8(3) of the Constitution of the Federal Republic of Nigeria, 1999.

(ii) Whether the 3rd defendant could purport to assent to a bill purportedly passed by the 2nd defendant in clear contravention of the provisions of sections 3(6), 7(1) & (2) and 8(3) of the Constitution of the Federal Republic of Nigeria, 1999.

(iii) Whether the defendants jointly and severally could purport to carry out or give effect and or implement the provisions of any law purporting to create new local government councils in Kogi State in clear contravention of the mandatory provisions of sections 3(6), 7(1) & (2) and 8(3) of the Constitution of the Federal Republic of Nigeria, 1999.

(iv) Whether the provisions of the Kogi State Local Government Law 2002, creating new local government councils in clear contravention of the Federal Republic of Nigeria, 1999 (sic) are valid, extant and enforceable.

(v) Whether in any event, the defendants could in the purported execution of the law creating new local government councils in Kogi State defeat, take away, abrogate, delimit or in any other manner affect adversely the accrued rights of the plaintiff to their just due from the Federation account and the state’s accruable revenue due to them.”

Dependent on the above questions, the plaintiffs made the following claims: –

1. Declaration that the provisions of the Kogi State Local Government Law 2002 in so far as its provisions do not conform with the mandatory provisions of sections 3(6), 7(1) & (2) and section 8(3) read in conjunction with part 1 of the first schedule of the Constitution of the Federal Republic of Nigeria, 1999 is unconstitutional, null, void and of no effect whatsoever.
2. Declaration that the defendants jointly and severally could only lawfully, legally and constitutionally execute, give effect to and to implement only laws validly passed and assented to in accordance with the provisions of the 1999 Constitution of the Federal Republic of Nigeria.
3. Declaration that the provisions of Kogi State Local Government Law 2002 are inconsistent with and are breaches of the mandatory provisions of sections 3(6), 7(1) & (2) and 8(3) of the 1999 Constitution and to that extent are unconstitutional, ultra vires the powers of the defendants, null and void ab initio.
4. Order of this honourable Court setting aside all the offensive sections of the Kogi State Local Government Law 2002, in so far as they are inconsistent with the provisions of section 8(3) of the 1999 Constitution of the Federal Republic of Nigeria.
5. Perpetual injunction restraining the defendants by themselves, their agents, privies, servants or any other person howsoever deriving authority and or power from them or at their behest from further giving effect to, implementing, enforcing or in any other manner take steps to actualize the provisions of the Kogi State Local Government Law 2002, to the disadvantage, detriment and or against the interest of the plaintiffs.”

A motion on notice was filed before the lower court on 23/5/2002 and the motion was asking for an interlocutory injunction restraining the defendants from further giving effect to implementing, enforcing or in any manner take steps to actualize the provisions of the Kogi State Local Government Law 2002, in so far as those provisions affect, concern, derogate from the accrued rights of the plaintiffs to their detriment or disadvantage pending the final determination of the substantive matter. After taking arguments on this motion, the learned trial Judge refused to grant interlocutory injunction and made an order for speedy trial of the substantive matter which was adjourned to 25/7/2002 for hearing.

On 25/7/2002, learned SAN for the plaintiffs showed his readiness to go on with the case, though he was served at about 8.45am with a counter-affidavit to the originating summons and a notice of preliminary objection. This notwithstanding, learned SAN showed his readiness to go on with the preliminary objection.

Learned Counsel for the defendants as well showed his readiness to go on with his preliminary objection. The lower Court look the preliminary objection on the day and reserved ruling for 8/8/2002.

On 8/8/2002, ruling was delivered by the learned trial Judge in which he overruled the preliminary objection and adjourned the substantive case for hearing on 25/9/2002.

It is against that ruling, the defendants now as appellants filed their notice of appeal to this court. The notice of appeal contained one ground of appeal.

In their brief of argument, the appellants formulated the following issue for determination.

“Whether the respondents herein have locus standi to institute the action against the appellants.”

The respondents filed their brief too. They formulated the following Issue:

“Whether the trial Court was not right in its conclusion that the respondents possessed the requisite locus standi to institute this action.”

Let me briefly state the salient facts as contained in the record of appeal, which give rise to this case. Sometime in March, 2002, the defendants/appellants announced the creation of additional 25 local governments councils and this brought the number of local government councils to 46 in Kogi State. This was consequent upon the passing into law of a bill under the 1999 Constitution creating the said local government councils and the assenting to the said bill by the 3rd appellant.

The respondents on 22nd May, 2002, instituted an action (by way of an originating summons) at the Kogi State High Court, Okene, to challenge the creating of the 25 new local government councils in the state by the state government. In the affidavit, in support of their originating summons, the respondents contended that they neither demanded the creating of new local government areas nor was any referendum held before their purported creation. The respondents contended that they have become adversely affected by the creation of the purported new local government as the revenue accruable to them (i.e the respondents) has been substantially reduced.

The appellants filed a joint counter-affidavit to the respondents’ originating summons and also filed a notice of preliminary objection to the jurisdiction of the court on the grounds, inter alia, that the respondents have no locus standi to institute the action.

While making submissions on the issue formulated, learned Counsel for the appellants argued that for the respondents to have judicial power to determine the constitutionality of a legislative or executive action, they must show that they have some justiciable and sufficient interest which will be affected by the action or that they will suffer an injury as a result of the action. Owodunni v. Registered Trustee (2000) 10 NWLR (Pt. 675) 315, (2000) 6 SCNJ 399 at 416, was cited in support. Learned Counsel for the appellants submitted further that the respondents in the affidavit annexed to their originating summons had not shown that they were in imminent danger of coming into conflict with the Kogi State Local Government Law, 2002, which they challenged. They have failed to show that they have sufficient interest to sustain their claims. Case of Olawoyin v. A.-G. of Northern Nigeria (1961) 2 SCNLR 5, (1961) 2 NSCC 165 was referred to. He further argued that the respondent must go further to show that the injuries they were in danger of sustaining will be over and above the injury to be suffered by the general public.

The respondents failed to show that and failed as well, to show the injuries to be suffered by all the other 46 local government councils of Kogi State as the injuries complained about by the respondents were common to and affected all the local government councils in the State. He cited and relied on the case of Adesanya v. President of the Federal Republic of Nigeria & Anor. (1981) 2 NCLR 358, (1981) 12 NSCC 146. Learned Counsel urged this court to allow the appeal.

The submissions of learned SAN for the respondents are as follows: in determining issue of locus standi, the court limits its search to the claim of the plaintiff as set out in the statement of claim or the supporting affidavit in case of a case instituted through originating summons/motion. Several authorities were cited among which is Busari v. Oseni (1992) 4 NWLR (Pt.237) 557. Learned SAN argued that paragraphs 2, 3, 4, 5, 7, 8, and 9 of the affidavit in support of the originating summons clearly demonstrated the interest and the detriment that the creation of additional local governments has caused the respondents. The Constitution of the Federal Republic of Nigeria recognized only 21 local government areas in Kogi State, which share the revenue accruable to local governments in Kogi State from the Federation account. Other detriments effects caused by the creation of those additional local government areas were stated in details by the respondents. He argued that the respondents had the locus standi to have instituted the action. The respondents have shown that their personal interest had been adversely affected by the action of the appellants. So also, their pecuniary interest. Learned SAN supported his submissions with several cases such as Adesanya v. The President (1981) ANLR (Reprint) 1 at page 7; Owodunni v. Registered Trustees of CCC (supra); Odeneye v. Efunuga (1990) 7 NWLR (Pt.164) 618 etc. He stated that the case of Olawoyin v. A.- G., Northern Nigeria (supra) cited by the appellants is in apposite to the facts of this appeal. He urged this court to dismiss the appeal and uphold the decision of the trial Court.

This appeal is on a narrow compass of locus standi. Locus standi as defined in the legal circle, is standing to sue. It is basic and fundamental because if a person lacks it, he becomes a busybody with no sufficient legal interest in the matter being adjudicated in court. Such a person has no right to be entertained or granted audience by a competent court. In ascertaining whether a party, especially plaintiff, has locus standi in an action, the pleadings, i.e. the statement of claim must disclose a cause of action vested in the plaintiff and the rights and obligations or interests of the plaintiff which have been violated. See Momoh v. Olotu (1970) 1 All NLR, 117; Oloriode v. Oyebi (1984) 1 SCNLR 390; Adefulu v. Oyesile (1989) 5 NWLR (Pt.122) 377; Sokoto v. Dangaji (1998) 11 NWLR (Pt.575) 656; Klifco Ltd. v. Philipp Holzmann A. G. (1996) 3 NWLR (Pt.436) 276.

Where the action is filed before a court of law by an originating summons or motion as in this case, affidavit evidence takes the place of pleadings. It is clear from the affidavit in support of the Originating summons sworn to by one Engineer Yakubu Mamman Khan, a political office holder at Local Government Secretariat Central Office, Okene, that –

“1. That I am the elected chairman of the 3rd plaintiff and by virtue of my position, I am very conversant with the facts of this matter and I have the authority of the Chairman and Council Leaders of all the plaintiffs to swear to this oath on their behalf.

2. That I know as a fact that, under and by virtue of section 3 and Part I of the First Schedule of the Constitution of the Federal Republic of Nigeria 1999, there are 21 Local Government Councils in Kogi State recognized by the said Constitution and their names are set out in the said Part 1 of the First Schedule of the Constitution.
3. That I know as a fact that the Chairmen of all the 21 local government councils were elected at the local government elections conducted in 1988, but we all assumed office after being sworn-in in 1999.
4. That I know as a fact that since we assumed office monies from the Federation account due to the local government in the State were distributed in accordance with the applicable law among the 21 recognized local governments.
5. That I know as a fact that accruable revenue to the 21 local governments were shared on the acceptable revenue formula operating in the Federation.
6. That I know as a fact that sometime in March, 2002, the defendants announced the creation of additional 25 local government councils from the existing 21 and this brought the number of local government councils to 46 in Kogi State.
7. That I know as a fact, that a new council by the name of Adeyi East was created from the 1st plaintiff, a new Ihima Local Council was created from the 2nd plaintiff, while Esomi and Ageva Local Councils were created from the 3rd plaintiff.
8. That I know as a fact that since the said creation of the new councils from the plaintiffs and other local government councils in Kogi State, same has impacted negatively on the revenue accruable to the old councils especially the plaintiffs herein whose share of the Federation Account has been reduced by the defendants in order to cater for the new councils.
9. That I know as a fact from my knowledge and interaction with the Chairmen and Legislative Leaders of the other plaintiffs that they never demanded for the creation of the new councils nor was any referendum held before the purported creation of the new councils.
10. That I know as a fact that after the announcement of the new councils, the mass of the people in the State rose against the exercise, especially the people of the plaintiffs councils.
11. ……………..
12. ……………..
13. That I know as a fact that in the purported creation of the new councils the 3rd defendant had allowed his personal interest to override his official interest of fairness and justice to the majority of the people of Kogi State.
14. That I know as a fact that the creation of the new councils was carried out to the detriment of the Kogi Central and West Senatorial Zones, but to the advantage of the Kogi East Senatorial Zone from where the 3rd defendant comes from (sic).
15. That I know as a fact that the 3rd defendant was unfair, unjust and biased in the way and manner he carried out the purported creation of the new councils.”

In his ruling, the learned trial Judge, held, inter alia –

“Since the cause of action or the subject-matter of the originating summons has to do with the constitutionality or otherwise of the law creating new local government areas, the plaintiffs who are complaining that their areas have been affected are best suited to bring this action. If they don’t have locus standi, no one else could possibly have.

The plaintiffs have shown by their originating summons that they have sufficient interest in instituting this action. The plaintiffs have sufficient justiciable interest to give them standing. Whether the plaintiffs are described as Local Government Councils or Local Government Areas, they have locus standi or standing to litigate the constitutional questions raised in their originating summons.”

The learned trial Judge supported his decision with the case of Adesanya v. The President (supra). Thus, from the totality of the above, I am convinced that the respondents have shown sufficiently that their personal interest has been adversely affected by the action of the appellants. Their pecuniary interest has also been shown to be affected. I found that the respondents have met all the requirements for locus standi as set out by the Supreme Court in the case of Adesanya v. The President (supra). I am satisfied that the learned trial Judge took the right decision.

Accordingly, I find no merit in this appeal and same is hereby dismissed. I affirm the decision of the lower court. I make no order as to costs.

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Other Citations: (2005)LCN/1764(CA)

Chief Johnson Nwosu & Ors V. Jacob Uche & Ors (2005)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A.

This is an appeal against the judgment of Njemanze, J., while sitting at the High Court, Okigwe, in Imo State on 3rd March, 1997. The judgment was in respect of the claims in suit with number HO/20/91 filed by the appellants as plaintiffs. The learned trial Judge dismissed the claims in their entirety.

The resolution of this appeal principally relates to the propriety or otherwise of the findings of fact by the trial Court. It is therefore apt to recapitulate the facts leading to the judgment of the trial Court at a reasonable length.

Put succinctly, the plaintiffs’ claims, as can be gathered from paragraph 18 of the amended statement of claim, relate to a declaration of the court that the defendants are their customary tenants in respect of portions of land referred to as ‘Ogboenwe’ and ‘Ndiuhu’ situate at Ibinta in Okigwe Local Government Area of Imo State.

The land is said to be occupied and enjoyed by the defendants as their homestead and farm lands. As such tenants, the plaintiffs maintained that the defendant are not entitled to lay claims to ownership or title to the said portions of land or any portion of land in Ibinta wheresoever situate. The plaintiffs also claimed forfeiture of their tenancy since the defendants denied the title of the plaintiffs as customary owners of the said portions of land. The plaintiffs further claims the sum of N176,666.70 as mesne profits for the use and occupation of their lands as well as perpetual injunction to restrain the defendants, their servants and privies from further entry into the land.

The evidence put forward by PW1 is that the plaintiffs are the owners of the lands in dispute from immemorial antiquity. He said that through one Nwosu Okwozo, the land was let to one Chief Kanu Okoroji, a strong warrior of Arochukwu, who helped Nwosu Okwozo to procure nine slaves for the purpose of protecting the founders of a church and a school in Ibinta in 1904. According to PW1, the nine slaves formed the nucleus of the defendants. The defendants’ slave forefathers settled on the lands in dispute as customary tenants sequel to a covenant by them to be of good behaviour and to respect the custom of Ibinta and be loyal to the Chief of Ibinta. But contrary to the covenant, PW1 said the defendants denied the plaintiffs’ ownership of the lands which led to the filing of this suit for declaration of title and forfeiture against the defendants. The plaintiffs tendered a host of exhibits. The defendants denied the story and the account of their origin as stated by PW1. They maintained that the land in dispute referred to as ‘Alaikpa Ndiokoroji’ by them was acquired by their ancestor, one Kanu Okoroji, by conquest and they occupy the land up to date. The defendants denied being part of Ibinta or being known as ‘Aro Ibinta’. They relied on proceedings in respect of portions of the land and tried to put up a plea of res Judicata. The defendants contended that the plaintiffs did not discharge the onus of proof to prop their claims.

The trial Court, in it’s reserved judgment, dismissed the plaintiffs’ claims but held that res judicata did not apply. The plaintiffs who will from now on be referred to as the appellants felt unhappy with the stance of the learned trial Judge and have appealed to this court. Nine grounds of appeal accompanied the notice of appeal filed on 20-5-97. By the leave of this court granted on 12-10-99, one more ground of appeal was added to make the total number rise to ten (10). This ground of appeal, in effect, attempted to contest the jurisdiction of the learned trial Judge in exercising original jurisdiction in respect of land, the subject of a customary right of occupancy. The defendants shall from now be referred to as respondents.

It is only necessary to reproduce the three issues couched by the appellants and adopted by the respondents for a due determination of the appeal as can be seen at page 4 of the appellants’ brief of argument. They read as follows:

“(i) Whether the court below had the jurisdiction to adjudicate on the claim before it.

(ii) Whether having regard to the state of pleadings and the evidence adduced, the respondents could be said to be the customary tenants of the appellants.

(iii) Whether the appellants are entitled to the reliefs they claimed in the lower court.”

On 13-4-05, when the appeal was heard, M. O. Nlemedim, Esq., learned Counsel who appeared for the appellants, applied orally to withdraw issue NO.1 touching on the jurisdiction of the trial court to determine the suit. The learned Counsel for the respondent was at one with the appellants’ Counsel. It is clear that after the land mark decision of the Supreme Court in Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, the jurisdiction or vires of the State High Court to determine suits in respect of land in non-urban areas ceased to be a moot point. Thus, the first issue couched in respect of same, as above reproduced, ceases to be relevant. Without much ado, it is hereby struck out since it has been withdrawn. I hereby discountenance arguments canvassed by learned Counsel for both parties in their respective briefs of argument on issue No.1.

Issue No. (ii) relates to appraisal of evidence and ascription of probative value to same. In the main, the case the appellant tried to put forward is that the respondents are their customary tenants in respect of portions of ‘Ogbaenwe’ and ‘Ndiuhu’ lands referred to as ‘Alaikpa’ by the respondents. The appellants contend that the respondents incurred the act of forfeiture when they denied the title of their overlords.

It is pertinent to state at this juncture to start from the known basic and well established principles of law relating to burden of proof in civil suits. A plaintiff has the duty to prove his case on the preponderance of evidence as dictated by Section 135 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. A plaintiff has the duty to establish his case on the balance of probability. Burden of proof is not static. It lies on the party who would fail if no evidence is led. Refer to Are v. Adisa & Ors. (1967) NMLR 304; Ikwuka v. Anachuna (1996) 1 NWLR (Pt. 424) 355; Mogaji v. Odojin (1978) 4 SC 91 at P. 94; Bello v. Eweka (1981) 1 SC 101.

The burden of proof of any issue before evidence is adduced is upon the party asserting the affirmative of the issue. See Okechukwu & Sons v. Ndah (1967) NMLR 368. To succeed, a plaintiff should adduce evidence with real probative value to support his claim. He should succeed on the strength of his case and not on the weakness of the defence. However, a plaintiff can rely on any aspect of the defence that supports his own case; if any. See Akinola v. Oluwo (1962) All NLR 224; (1962) 1 SCNLR 352.

Where a party on whom the burden of proof in a case rests, fails to adduce evidence on a material issue which he needs to prove or if the evidence adduced by him is so patently unsatisfactory that a prima facie case has not been made out, the trial Court, in such a situation, does not have to consider the case of the defence at all. Refer to Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24.

In re-appraising findings of fact, those made by the trial Court should be accorded due regard. An appellate court will not interfere with findings of fact made by a trial Court, except where wrongly applied to the circumstance of the case. An appellate Court will only interfere with findings of fact by a lower Court, if it is shown that the conclusion reached was wrong or perverse. See Nwosu v. Board of Customs & Excise (1988) 5 NWLR (Pt. 93) 225; Nneji v. Chukwu (1996) 10 NWLR (Pt. 478) 265.

There is a presumption that a decision of a trial Court on facts is correct. An appellate Court should not ordinarily substitute its own views of fact for those of the trial court which watched the demeanour and performance of witnesses. See Ebba v. Ogodo (1984) 1 SCNLR 372.

As can be garnered from the amended statement of claim and the evidence strenuously adduced by PW1, the claim to ownership of the land in dispute, put briefly, was predicated on the procurement of nine slaves that constituted what came to be known as Ndiokoroji. They claimed that they gave the land in dispute -Ala Ikpa to them to settle as customary tenants after a covenant by which they undertook to be of good behaviour, respect the custom and tradition of Ibinta and to be loyal to the Chief of Ibinta.

The respondents in their defence on this issue denied being slaves. They maintained that they were warriors from Kanu Okoroji’s ‘army’ from Arochukwu who came, on invitation, to defend and resettle Ibinta people in their war with Umunze and that the covenant was with respect to their entitlements upon a successful completion of their assignment.

For the appellants to succeed in their claims, the onus of proof is on them to depict that the respondents are their customary tenants. The appellants tried to place reliance on certain exhibits tendered by them as well as on the evidence of PW1 which should be treated in their sequence. The exhibits which require proper appraisal are in respect of suits between the forebears of the parties in this appeal. I have given a very careful look at the decisions in respect of the cases decided by various courts between the forebears of the parties. I cannot see anything in exhibit ‘B’ which is the starting point of the long drawn battle which shows or point at the direction that the defendants therein were slaves or customary tenants.

In exhibit ‘C’, the claim was in respect of recovery of a plot of land called Ngwala which undoubtedly is not part of Ala Ikpa now in dispute herein. I cannot trace anything in exhibit ‘C’ that shows that the respondents’ forebears were slaves or customary tenants. This exhibit ‘C’ has no correlation with the appellant’s claims herein.

Exhibit ‘D’ relates to contempt of court charge against the defendants therein for allegedly failing to withdraw from the land known as Ngwala. All the ‘accused’ therein were found not guilty and discharged. Therein, they were not branded as slaves or customary tenants. Again, the land in dispute therein known as Ngwala is not part of Ala Ikpa land in dispute herein.

Exhibit ‘E’ is in respect of an in-house matter between members of Aro Ibinta. It is in respect of land known as ‘Ikpatu’ which is not part of Ala Ikpa land in dispute herein.

In Exhibit F, Ofoma Ogbonna represented the people of Ibinta against Rufus Chikezie and others of Aro Ibinta. The plaintiff claimed for an order on the defendants to accept 10 pounds redemption fee on Ikpata or Ngwara land pledged to the defendants since 11-5-20. In Otanchara Native Court, the plaintiff’s case was dismissed by a majority judgment. The plaintiff appealed to the A.D.O., who reversed the decision and ordered the defendants to accept the 10 pounds redemption fee within one week. The defendants then appealed to the District Officer’s Court of Appeal which in the judgment in exhibit “G”, dismissed the appeal but stated that the plaintiff’s title over land marked red in map OKS/O85- Exhibits N & S herein, is not to extend over road from Oka Nnachi passing between ‘P’ and ‘E’ (on the Ekpa boundary) to Edo tree further south.

The defendants appealed further to the resident’s Court of Appeal. The plaintiff applied for a review of the decision in exhibit G. The resident took both the appeal and the review together. In exhibit ‘H’ the resident’s decision on appeal favoured the defendants. The resident found as follows:

“It is common ground that this Aros occupy the land called Ala Ikpa without dispute. Plaintiff maintains that they received Ikpatu on pledge defendants that Ikpatu was purchased outright for 10 pounds. There is no agreement on these lands.”

Ofoma Ogbonna who represented the plaintiffs then applied to the High Court at Onitsha for an order of certiorari to quash the decision in exhibit ‘H’. The High Court heard the application and refused it as manifest in exhibit O. Still not satisfied, Ofoma Ogbonna further appealed to the Supreme Court which dismissed his appeal with 20 Guineas costs in favour of the respondents as can be seen in exhibit ‘P’.

From the decision of the resident in exhibit ‘H’ affirmed by the High Court in exhibit O and confirmed by the Supreme Court in exhibit P, ‘Aros occupy land called Ala Ikpa without dispute.’ Such was common ground. The Aros were not referred to in exhibit ‘H’ as slaves or customary tenants.

In exhibit K, Obi Okonkwo represented the people of Ibinta. He testified that five Aros – Kalunta, Chikezie, Ochiawuto Onukwuwe and Nmerenuonu were residing on the land known as Ala Ikpa with their permission. They were allowed to live on the land free. They did not ask them to pay rent. David Nwosu, another Ibinta man confirmed same without any equivocation. The case against the defendants therein was not against Aro Community of Ibinta. They were adjudged to have right of occupation. The A.D.O. did not support payment of rent by them ‘after those long years of peaceful occupation’.

There is no evidence pointing to the stance that there was an agreement on customary tenancy between the ancestors of the parties. And the ancestors of the respondents were not referred to as slaves.

What then is customary tenancy? The requirements of customary tenancy have been graphically covered by the Supreme Court in the case of Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130 at 217, where it was pronounced that:

“The holding of a customary tenant is not a gift. The land is not borrowed or given as a loan; the land is not given for a definite term, hence he is in a different category from a lessee. It is a grant upon terms, a grant upon terms and conditions agreed with the owners. Provided he keeps to the conditions of the grant and payment of tribute, he can enjoy possession of his holding from year to year in perpetuity.”

Let me say it right away that the appellants from the documentary evidence considered above have failed to convince me that there is customary tenancy between them and the respondents herein. I am unable to fathom same even by sheer implication. I cannot see the agreement depicting the terms and conditions agreed by the parties. It appears to me that it merely exists in the imagination of the appellants who are trying to force it down the throats of the respondents.

On incident of customary tenancy as put forward by the appellants, I shall now consider the evidence adduced viva voce by PW1. In line with paragraph 8 (iv) and (v) of the amended statement of claim, PW1 testified on what he called covenant (Igba-Ndu) of 1961. He maintained that the defendants swore never to lay claim to any portion of Ibinta land wherever situate for all time and that they would be loyal to Ibinta Community and would obey and respect the Chief of Ibinta. The appellants on their part swore that they would not quit the defendants provided that they kept to their oath. PW1 said as a result of this covenant both parties abandoned the appeal which was then pending in the Supreme Court. PW1 was shown exhibit P showing that the appeal was fully argued and dismissed by the Supreme Court. It is unthinkable that PW1 feigned ignorance of exhibit P.PW1 there and then put himself in a position that he should not be believed on serious issues. His credibility and integrity become suspect. His veracity got impaired as he showed that he was not a witness who was ready to further the cause of truth.

The evidence of PW1 in respect of ‘Igba-Ndu’ covenant as put up naturally crashed. I agree with the learned trial Judge that if ever there was any covenant in 1961 it was one for peace. It has nothing to do with customary tenancy agreement. The learned trial Judge watched the demeanour of PW1 and faulted him. It was within his competence to so do. I am at one with him. Refer to Nze v. Unakalamba (1998) 2 NWLR (Pt. 53 7) 308 at 323; 336.

Curiously, there is the complaint in the appellants’ brief of argument that the learned trial Judge did not state whether he believed the appellants or the respondents. The appellants need to know that there is nothing magical in the use of terms like – ‘I believe’ or ‘I do not believe’ in appraising evidence. Let me add that there is nothing esoteric in the employment of such tags. Reasons for believing or not believing a witness must be depicted. The learned trial Judge showed why PW1 should not be believed on his imagined ‘Igba-Ndu’ covenant of 1961. No right thinking tribunal will believe him. And the same cast aspersion on his evidence that his grand-father procured nine slaves which formed the nucleus of the respondents and that such culminated in a surmised customary tenancy.

The appellant failed to show that there was ‘a grant upon terms and conditions’ between them and the respondents. There must be an agreement as dictated by the decision in Abioye v. Yakubu (supra).

I agree with the learned Counsel for the respondents who settled their brief that ‘the same must kick off with an agreement’.

The appellants complained that the learned trial Judge erred when he said that customary tenancy required payment of monetary-tribute. Learned Counsel for the respondent conceded the point. It is inconsistent with existence of customary tenancy as same may well be established without the payment of tribute under customary law.

Tribute may be tangible or intangible. It may be in form of ‘acknowledgment of gratitude or respect.’ Refer to Abimbola v. Abatan (2001) 9 NWLR (Pt. 717) 66 at 75; Makinde v. Akinwale (2000) 2 NWLR (Pt. 645) 435 at 452.

The real point is that there was no credible evidence adduced by the appellants at the trial court to sustain the existence of a customary tenancy between the appellants and the respondents. There was no agreement established to indicate terms and conditions of same. The appellants failed to prove the plank of their claim to wit:

customary tenancy. The submission of the respondents’ counsel that the appellants, having failed to prove the customary tenancy on which their case was predicated, the appellants must be hoisted with their own petard holds water.

The appellants failed to prove their case on a preponderance of evidence. They should succeed on the strength of their own case; not on the weakness of the defence. They are not entitled to the reliefs claimed by them at the lower court. The case ought to be dismissed as was done by the learned trial Judge. See Okeke v. Agbodike (1999) 14 NWLR (Pt. 638) 215. Idesoh v. Ordia (1997) 3 NWLR (Pt. 491) 17 at 25.

Before I draw the curtain, perhaps I should say it that all human beings should be careful in the way and manner they talk glibly about slavery. It should be borne in mind that we are all children in the sheep-fold of God.

I come to the conclusion that the appeal is devoid of merit. It is hereby dismissed as I affirm the balanced judgment of the learned trial Judge. The respondents are entitled to costs which I assess at N5,000 against the appellants.

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Other Citations: (2005)LCN/1763(CA)

Livestock Feeds Plc. V. Alhaji Rabiu Umaru Funtua & Anor. (2005)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

This is an appeal against the ruling of the Kaduna State High Court, delivered on the 1st day of February, 2002, by Abiriyi, J. contained at pages 64 – 68 of the printed record in respect of an application dated 10/1/2002 for an order setting aside the sale of moveable items of the appellant as the judgment debtor carried out by the deputy chief registrar, Kaduna State High Court at the instance of the 1st respondent. The application was argued by the counsel to the parties and in its reserved and considered ruling delivered on 1/2/2002, the learned trial Judge inter alia held:-

“Notwithstanding the striking out of the paragraphs referred to above, I find no basis for granting the application. It is accordingly hereby dismissed.”

The background facts of the case, leading to this appeal briefly are as follows: The 1st respondent, Alhaji Rabiu Umar Funtua, is a businessman, trading in the name and style of “Alhaji Umaru Yaro & Sons” was the plaintiff before the trial Court. The plaintiff was approached by the defendant now the appellant to supply maize to the defendant vide a document dated 3rd August, 2000 requesting for a supply of raw material. Upon a full assurance of prompt payment four weeks after delivery of the maize, the respondent quickly made a truck-load supply of the maize measuring 143,240 metric tons at N14,520.00 per ton to the appellant which amounted to N2,076,980.00.

After the supply by the respondent as requested by the appellant, the appellant reneged on the agreement for the payment within four weeks after delivery. The appellant made a total instalmental payment of N640,000.00 only leaving a balance of N1,436,980.00. According to the respondent, the appellant made several verbal and written undertakings to offset the entire sum without fulfilling any of the undertakings hence the institution of the action against the appellant by a writ of summons dated 12/2/2001 under the undefended list. Subsequently, judgment was given against the appellant in the sum N1,436,980.00 in favour of the 1st respondent on 23/3/01. An instalmental payment of the sum of =N=200,000,00 per month was made by an order of the trial Court on 11/5/2001 on the application of the appellant as judgment debtor/applicant.

As a result of non-compliance with the order of the instalmental payment made by the trial Court at the instance of the appellant, the judgment creditor/respondent caused the attachment of some moveable properties of the appellant which were sold by auction resulting in the application by the appellant to set aside the said sale of the moveable items. The learned trial Judge refused and dismissed the said application leading to this appeal.

Being dissatisfied with the ruling of the learned trial Judge, the appellant appealed to this court. By its notice of appeal dated 7/2/2002 filed on 4/3/2002, containing four grounds of appeal at pages 69-71 of the printed record.

The four grounds of appeal without their pat1iculars are as follows:-

“Grounds of appeal

1. Error of law

The Kaduna State High Court (Hon. J. Abiriyi) erred in law, when he refused to uphold the appellant’s point that the Judgment creditor and the deputy sheriff are bound to give to the Judgment debtor (the appellant) the notice as to the date, time and place where the sale shall be carried out at least twenty four hours to the time of sale. Order v. Rule 6(1) & (3), Sheriff & Civil Process Act Cap 407 Laws of the Federation.

That Order V, Rule 6(1) & (3) of the Sheriff and Civil Process Act Cap 407, is not relevant to this application.

2. The learned trial Judge erred in law, when he held that, “by the provision of Section 20(2) Sheriff & Civil Process Law, Cap 141, Laws of Kaduna State there is no need for recourse to the court where there is a breach in the payment of instal mental payment.
3. The learned trial Judge erred in law, when he held that, “paragraph 4b, i, j, n & o of the respondents’ counter affidavit should be struck out because they are not backed by documentary evidence, yet I find no basis for granting the application. It is accordingly hereby struck out.
4. The learned trial Judge misdirected himself in law, when he held that the case of Barclays Bank DCO v. Madam T. Adedapo (1962) 2 All N.L.R. 64 referred to another WACA decision which was based on a rule of court which has no equivalent in our court.”

In accordance with the rules of practice and procedure of this court briefs of argument were filed by the appellant, the 1st respondent and a reply by the appellant. The 2nd respondent however did not file a brief. When the appeal came up for hearing on 6/4/05, only the learned Counsel for the 1st respondent was in court.

Learned Counsel for the respondent adopted and relied on the 1st respondents brief. As the appellant’s brief had been filed, the appeal of the appellant was deemed argued in accordance with Order 6 Rule 9(5) of the Rules of this court.

The appellant in his brief dated 20/3/2002 filed same date formulated the following issues for determination in this appeal:-

“1. Whether the learned trial Judge was not in error by validating the sale of the appellant’s attached moveable properties purportedly sold on the Thursday 20th December, 2001 with the pendency of appellant’s motion on notice filed and handed over to the 2nd respondent on Tuesday 18th day of December, 2001.

2. Whether the learned trial Judge was not in error when he held that the Provisions of Order V 6(1) & (3) of the Sheriffs & Civil Process Act (Cap 407) Laws of the Federation on notice of sale of attached properties is not relevant to the application, while also refusing to invoke a similar provisions in the Sheriffs and Civil Process Law Cap 141 Laws of Kaduna State, i.e. Section 28(4) & Section 29(1).
3. Whether the learned trial Judge was not in error, when he held that ‘by the provisions of section 20(2) Sheriff & Civil Process Law, Cap 141 Laws of Kaduna State, there was no need for recourse to the Court, where there is a breach in the instalmental payment.
4. Whether the learned trial Judge was not in error by not holding that the respondent has not discharged the burden of proof placed on them by section 147 & 149(D) of the Evidence Act after striking out paragraphs 4(b),(i),(j),(n),(o) of the respondent’s counter affidavit as being baseless.”

The 1st respondent on the other hand, formulated two issues at pages 4-5 of the 1st respondent’s brief as follows:-

“1. Whether the learned trial Judge was correct in striking out paragraphs 4(b) (i) (j) (n) (0) of the 1st respondent counter affidavit filed on 22nd January, 2002 at page 56 to 57 of record of appeal.

2. Whether the learned trial Judge was right to have refused to set aside the sale of moveable items of the appellant being the reason for this appeal.”

The 1st respondent at page 5 of the 1st respondent’s brief raised a preliminary objection which reads:-

“Notice is hereby given by the 1st respondent that he intends, at the hearing of this appeal, to rely upon the following preliminary objection as to the competence of ground 1 on the following grounds:-

a. The said ground of appeal did not arise from the decision of the trial Court against which this appeal was filed.

The said ground raises fresh points of law that were not canvassed at the trial Court. See pages 61, 63 and 66 – 68 of the record of appeal.”

Although, the learned Counsel for the 1st respondent incorporated his notice of preliminary objection which is not dated in the respondent’s brief of argument contained at page 5 – 7 of the respondent’s brief, it does not appear that the 1st respondent filed a formal notice of preliminary objection in accordance with Order 3 Rule 15(1) of the rules of this court because none is contained in the file.

Order 3 Rule 15(1) of the rules of this court which provides for the filing of the notice of preliminary objection reads as follows:

15(1) “A respondent intending to rely upon a preliminary objection to the heating of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registrar within the same time.”

A party in this court having a preliminary objection against any of the grounds of appeal must give the appellant three clear days notice before the objection is heard. See Oforkire v. Maduike (2003) 5 NWLR (Pt.812) 166 at 178.

In considering a preliminary objection the first point to begin with is the propriety of raising a preliminary objection in the brief of argument without the filing of a formal notice thereof at least three days before the hearing of the appeal and without proffering oral argument on it. See Nsirim v. Nsirim (1990) 5 S.C.N.J. 174 at pages 182 – 183; (1990) 3 NWLR (Pt.138) 285; O.S.H.C. v. Ogunsola (2000) 14 NWLR (Pt.687) 431 at 440. It is clear from the provisions of Order 3 Rule 15(1) of the rules of this court that the filing of the notice of preliminary objection by a respondent intending to raise an objection to the competence of grounds of appeal three days before the hearing of the appeal, is mandatory and non-compliance with the said provisions by a respondent is fatal to the objection. I hold the view that the failure of the 1st respondent to file his notice of preliminary objection in compliance with the said rule has rendered the objection incompetent consequently the preliminary objection is hereby discountenanced.

However, from a careful examination of the appellant’s first ground of appeal, it is clear that the ground does not relate or arise from the judgment.

A ground of appeal must stem from the ratio decidendi of the judgment or ruling and not any extraneous matter nor obiter dictum of the court.

It may be pertinent to examine the ratio decidendi sought to be attacked on the first ground of appeal by reading the relevant portion of the ruling in determining whether the issue relates or arose from the judgment. See Babalola v. The State (1989) 4 NWLR (Pt.115) 264,294, GHB Obatoyinbo v. E. Fagbola Oshatoba (1996) 5 NWLR (Pt.450) at 531. 549; Nnanna v. Onyenakuchi (2000) 15 NWLR (Pt.689) 92.Clearly, the first issue formulated by the appellant as well as the first issue formulated by the 1st respondent who did not file a cross appeal but relied on the appellant’s grounds of appeal are incompetent and must be struck out.

It is the law of the brief or brief writing that issues must be formulated from the grounds of appeal. They must be based or related or arisen from the grounds of appeal. See Madumori v. Okafor (1996) 4 NWLR (Pt.445)637 at 644. An issue for determination in an appeal must arise from the ground or grounds of appeal. Where an issue for determination is not predicated on any ground of appeal, the issue becomes incompetent and is liable to be struck out. See Osinupebi v. Shuaibu (1982) 7 SC.104 at 110 – 111. In the instant appeal, I hold that the first ground of appeal which does not relate or arise from the ruling is incompetent and the first ground is hereby struck out as the law is settled that a ground that is not competent must be struck out. See Ideh v. Onyedese (1997) 8 NWLR (Pt.518) 610, R.E.A. vs. Aswani iles Ltd. (1991) 2 NWLR (Pt.176) 639; R.S.C.E. v. Omubo (1992) 8 NWLR (Pt.260) 456.

Also, the 1st respondent’s first issue which is not formulated from the appellant’s ground of appeal is equally incompetent as it has no ground to stand on as required by the rules of brief writing.

It therefore follows that the first ground of appeal as well as the submission canvassed based on the said ground are incompetent and must be discountenanced. The same thing applies to the first issue formulated by the 1st respondent as well as the submission canvassed based on the incompetent first issue.

Ground of appeal number one of the appellants’ brief is struck out so also the first issue in the 1st respondent’s brief.

After a careful examination of the remaining three grounds of appeal and the second, third and fourth issues formulated therefrom and the second issue formulated in the 1st respondent’s brief which is now the only remaining issue, I adopt the 1st respondent’s remaining sole issue for the determination of this appeal as the issue is all encompassing and sufficient to dispose of the appeal.

On the second issue formulated by the appellant, learned Counsel for the appellant, A.T. Kehinde Esq., referred to page 68 of the printed record and submitted that the provisions of the Sheriffs and Civil Process Act, Cap 407 Laws of the Federation is applicable at the trial Court because the trial court is a creation of the Laws of the Federation of Nigeria. According to the learned Counsel for the appellant, the onus of proof of the particulars of the notice of sale, pasting of the notice and service of the notice of sale and other conditions precedent to the sale lies on the respondent and that this ought to be satisfied through the affidavit evidence of the respondent but the respondent has failed to do so by his affidavit.

Reference was made to the Sheriffs and Civil Process Act of the Federation as well as the Sherrifs and Civil Process Laws of the Kaduna State of Nigeria Cap 141 and the case of Bayero v. Crusader Insurance Co. Ltd. (1998) 6 NWLR (Pt.553) 214 at 226 by the learned Counsel for the appellant in support of his case.

Concluding his submissions on issue No.2, learned Counsel for the appellant submitted that the sale of the appellant’s property without proven notice of sale is null and void and of no effect, and urged the court to set aside the said sale.

It is argued in support of the third issue by the learned Counsel that the learned trial Court did not make an order as to when the issuance of the writ of attachment/execution will take place while making the order of the instalmental payment dated 15/5/2001. In that connection, he referred the court to page 68 of the printed record in support of his argument.

Learned Counsel further submitted that there is nothing in the record to show when the respondent applied for the issuance of the writ of attachment.

It is further argued that since the writ of attachment dated 4/7/2001 and 6/11/2001 contained at pages 44 – 47 of the record, contained the total outstanding against the appellant of N1,436,001.00, it shows that the amount of N630,000.00 already paid to the respondent had not been taken into consideration. He referred the court to pages 40 – 43 of the record of appeal. It is contended by the learned Counsel for the appellant that the respondents should have gone back to the court to disclose how much has been paid to them in order for the court to issue a fresh writ of attachment specifically the outstanding amount due.

In conclusion, learned Counsel argued that the execution of the judgment was wrong and there was no justification. See Bhojson Plc. v. Daniel – Kalio (2000) FWLR (Pt.14) 2357 at 2363 – 2368; Barclay’s Bank D.C.O. v. Madam T. Adedapo (1962) 2 All N.L.R. 64; Skenconsult Nig. Ltd. v. Godwin S. Ukey (1981) 1 Sc. 6 at 25 and urged the court to answer the third issue in the negative.

On the fourth issue as to whether the learned trial Judge was not in error after striking out paragraphs 4(b),(i),(j),(n), (o) of the respondent’s counter affidavit by not holding therefrom that the respondent did not discharge the burden of proof placed on them by section 147 of the Evidence Act and also by not invoking the provisions of section 149(b) of the Evidence Act and referred to the portion of the judgment of the learned trial Judge at page 68 lines 21 – 27 of the printed record.

He further argued that the paragraphs struck out by the learned trial Court goes to the root of the burden of proof placed on the respondent. Learned Counsel referred the court to pages 60 – 62 of the record and submitted that since the root of the case of the respondent’s case has been struck out, the only alternative left for the trial Court was to decide on the uncontroverted evidence of the appellant.

Relying on the authority of Alh. Audu Maigoro v. Alh. Mohammed Bashir (2000) 11 NWLR (Pt.679) 453, (2000) FWLR 553 at 563, learned Counsel argued that a court can act on the evidence properly placed before the court by the parties in a case.

The counsel to the appellant referred to a number of cases in support of his submission and urged the court to allow the appeal.

Learned Counsel for the 1st respondent, Sule Shuaibu Esq., on the 1st respondent’s second issue which is now the sole issue of the respondent having struck out the 1st respondent’s first issue, stated that the crux of the matter in the appeal is the refusal of the learned trial Judge to set aside the sale of the moveable items of the appellant.

In support of the sole issue, it is argued by the learned Counsel for the respondent that for the sale of a judgment debtor’s properties, the appellant herein to be set aside, the appellant must not only prove that there was material irregularities in the conduct of the sale but also he sustained substantial injuries by reason of such irregularities.

See Akpononu v. Beakraft Overseas (2000) 12 NWLR (Pt.682) 553 at 561.

He relied on paragraphs 4 of the 1st respondent’s counter-affidavit and stated that the appellant was duly notified and was aware of the date of the sale of its moveable properties. Learned Counsel for the 1st respondent further argued that assuming, but without conceding that there was irregularities in the conduct of the sale of the appellant’s attached moveable items, the appellant has the onus of proving the irregularities but it has failed to do so. He therefore urged the court to uphold the sale of the immoveable items of the appellant as the judgment debtor.

In conclusion, learned Counsel for the 1st respondent urged the court to dismiss the appeal.

In determining and resolving the 1st respondent’s only remaining sole issue (second issue) as to whether the learned trial Judge was right to have refused to set aside the sale of the moveable items of the appellant being reason for this appeal, it is pertinent to reproduce the application as well as the relevant averments in the supporting affidavit as well as the counter-affidavit.

By a motion dated the 10th day of January, 2002, filed same date the appellant as applicant prayed the court for the following orders:-

1. An Order setting aside the sale of moveable items of the judgment debtor carried out by the respondent for being irregular and in contravention of the law.
2. And for further or other orders as this court may deem fit to make in the circumstances.”

The motion was supported by a six paragraph affidavit deposed to by one Austine Oseh, of No.3, Kanta Road, Kaduna, the Litigation Secretary in the firm of Akinlolu Kehinde & Co. Solicitors to the appellant as applicant and a further affidavit of four paragraphs deposed to by the same deponent. In my view, the relevant paragraphs of the affidavit are as follows:-

“2. That I have the authority of my employers and that of the applicant to depose to this affidavit.

3. That I was informed by Umaru Yila, the Kaduna Mill Branch Manager for the applicant this the 10/1/2002 at about 10.30 a.m. at my office and in the course of my duties and I verily believed him to be true as follows:-

(a) That judgment was entered for the respondent in this case in the sum of N1,436,980.00 (One million four hundred and thirty six thousand, nine hundred and eight naira only).

(b) That thereafter, the Court ordered the payment of the judgment sum on a monthly instalment of N200,000.00.

(c) That upon the said order the applicant paid the respondent the sum of N630,000.00 leaving the balance of N806,980.00 outstanding.

(d) When the applicant could not make further payment, the respondent executed the said judgment and carted away all valuables in the applicant’s premises and therefore grounded the administrative and marketing exercise of the applicant. Copies of the items attached by the respondent are hereby attached as exhibit A & B respectively.

(e) That upon the said attachment, the applicant brought a motion dated 18/11/2001 which said motion was fixed for hearing on the 17/12/2001 for hearing.

(f) That on the said date the applicant’s solicitors were not available hence an application for adjournment sent to the court on the said date.

(g) Notwithstanding the letter the Court struck out the said application upon which the applicant filed another motion on the 18/12/2001.

(h) While the applicant’s motion of 18/12/2001 was awaiting hearing date from the court the respondent mischievously went ahead and sold the said properties without due regards to the pending application and enabling laws that regulate the sales of moveable items attached pursuance to judgment.

(i) That the respondent was fully aware of the pendency of the said motion of 18/12/2001.

(j) That the applicant did not have any notice of the purported sale of the properties.

(k) That no auction sale of the property was conducted by the respondents.

(l) That the purported sales was done by the respondents malafide.

(m) That the value of the said properties were far above the outstanding judgment sum in favour of the respondents.

(n) That the respondents have succeeded in paralyzing the administrative and indeed marketing exercise of the applicant.

(o) That the applicant is willing and ready to pay the outstanding judgment sum to the respondent.

(p) That the failure of the applicant to pay the judgment sum as at when due was not deliberate as same was communicated to the respondent timeously due to the financial crisis facing the applicant at that point in time.

(4) That Justice of this case demands the grant of the application.”

A counter-affidavit was filed by the respondent containing six paragraphs affidavit deposed to by one Rashidat Bello of S.11 Ibrahim Taiwo Road, Kaduna, the secretary in the firm of Messrs Mamman Nasir & Co., solicitors to the respondent. The averments in the following paragraphs appear relevant:-

“3. That I have the permission of both my employers and the respondents to make this oath.

4. That I have been informed of the following facts by the respondent and my employers and I verily believe the information as true and correct thus:-

a. That they have seen and read a copy of the applicant motion dated 18th November, 2001.

b. That it is in the usual habit of the applicant to file frivolous and vexatious motions as the one dated 17th July, 2001 but struck out by this court.

c. That the applicant is deliberately frustrating the respondents from reaping the fruits of their judgment of this court.

d. That both motions dated 17th July, and 28th November, 2001 respectively were never served on the respondents.

e. That it was my employers, particularly Suleiman Shuaibu Esq., that went to the registry of this court to collect copy of the motion dated 28th November, 2001 wherein he discovered that the case comes up on the 14th December, 2001.

f. That since the order of this court in favour of the applicant for instalmental payment of the judgment sum, the respondents has never paid as at when due.

g. That out of the total judgment sum of N1,436.80 excluding the interests accrued thereon, the respondent has paid only six hundred thousand naira N600,000.00 only.

h. That even with the annoying way and manner adopted by the applicant in payment of the instalments, the respondents have had to take steps to make the applicant realize the consequences of disobedience of this court order before the said N600,000.00 could even be realized so far.

I. That the applicant has so far issued dud cheques to the respondent knowing fully well that it had no such money in its account.

J. That counsel personally handling the case was informed by the applicant accountant that the dud cheques were variously issued not only to frustrate the respondents but to delay any action on attachment of the applicant’s moveable properties.

k. That the judgment sum is attracting interests as awarded by this court and unless this court allows the bailiffs to sell/dispose of the moveable properties attached, the respondents hope of realizing its judgment sum will be dashed.

l. That the moveable properties of the applicant attached are not implement of work and do not in any way hamper the applicant’s production.

m. That the applicant by the order of this court for instalmental payment ought to have paid off the entire judgment sum with the accumulated interests and cost of execution since end of September, 2001.

n. That the applicant is not making any efforts to payoff the judgment sum in this suit as it has many creditors who have on occasions also attached their moveable properties.”

After the application was argued the learned trial Judge in his ruling at page 68 of the record of appeal, held:-

“Mr. Kehinde the learned Counsel for the applicant did not have recourse to section 20(2) of the Sheriffs and Civil Process Law Cap 141 the Laws of Kaduna State.

By this provision, there is apparently no need for recourse to the court where there is a breach in the payment of any instalments.

Learned Counsel for the applicant referred this court to Order 6 Rules 1 and 3 of Sheriffs and Civil Process Act and the case of Bayero v. Crusader Insurance Co. Ltd. I agree entirely with Mr. Shuaibu that Order 6 Rules 1 and 3 are not relevant or applicable to this application and the case of Bayero v. Crusader Insurance Co., deals with sale of immoveable property and not moveable property as in this case.

I agree entirely with Kehinde that paragraphs 4(b) (i) (j) (n) (o) of the counter-affidavit should be struck out as they are baseless as they are not backed by documentary evidence.

Notwithstanding the striking out of the paragraphs referred to above. I find no basis for granting the application. It is accordingly hereby dismissed.”

Section 20(2) of the Sheriffs and Civil Process Law, Laws of the Kaduna State of Nigeria Cap.141 of 1991, reads:-

20(2) “On any such default, execution or successive executions may issue for the whole of the said sum of money and costs then remaining unpaid, or for such part thereof as the court may order, either at the time of making the original order or at any subsequent time.”

Although, the learned Counsel for the appellant claimed that no order of attachment was made by the learned trial Judge at the time the application for the instalmental payment was made, he failed to support the claim by exhibiting the ruling to his affidavit in support or the further affidavit in compliance with the provision of section 132 of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990. He however referred the court to pages 44 – 46 of the record of appeal containing two notices of attachment dated 4/7/2001 and 9/11/2001 respectively, even though he had earlier argued that no writ of attachment was ever issued.

Since the appellant as applicant was seeking for the indulgence of the court by his application, it is incumbent upon him to place all the necessary materials before the court to enable the court exercise its discretion in his favour. See N.A Williams & Ors. v. Hope-Rising Voluntary Funds Society (1982) 1-2 SC. (Pt.1 & 2) 145 at 153.

The appellant has also failed by his affidavit to substantiate his claim that the attached items were under valued at the sale as well as the fact that there was non-compliance with the Sheriffs and Civil Process Law in attaching the items and conducting the sale. It is not sufficient for an applicant to rely on mere averments, the averments must be substantiated by exhibiting the relevant materials, for the averment to be credible.

Since the appellant appears to be ignorant of the amount realized from the sale of the items which can easily be obtained from the trial Court, how can he arrive at the conclusion that the items sold were under valued?

The Supreme Court of Nigeria in the case of G.C. Akpunonu v. Beakraft Overseas (2000) 12 NWLR (Pt.682) 553 at 561., referred to the court by the learned Counsel for the 1st respondent per Kutigi, J.S.C, held.

“On the state of the facts as stated above, I am inclined to agree with the lower courts that the sale by auction of appellant’s immoveable properties was done in accordance with the law. I also agree with them that the properties were not undervalued because there was no such evidence anywhere before the trial Court. Moreover, for the sale to be set aside the appellant must not only prove that there was material irregularity in the conduct of the sale but also that he sustained substantial injury by reason of such irregularity. See for example section 46 of the Sheriffs and Civil Process Law, Cap 118 Laws of the Eastern Nigeria, 1963. Alh. Nakyauta v. Alhaji Maikima (1977) 6 Sc. 51 Government of Ashanti v. Korkor (1938) 4 WACA 83.”

It is not every mistake or error in judgment that will result in an appeal being allowed. It is only when the error is substantial in that it had occasioned a miscarriage of Justice in that case an appellate court is bound to interfere. See Onhonda v. Ekpechi (2003) 17 NWLR (Pt.849) 326 at 351.

It appears to me that the appellant wanted to benefit from his wrongful acts of defaulting in the payment of the instalmental payment made by the trial Court on the appellant’s application inspite of his conduct of disobeying the trial court order, thereby unnecessarily delaying the payment of the judgment debt.

It is trite law that the grant of an application such as the one in this appeal under consideration is at the discretion of the trial court but it is a discretion that must be exercised judicially and judiciously.

See Aboderin v. Morakinyo (1968) NMLR 179.

An appellate court would not generally, question the exercise of discretion of the trial Judge merely because it would have exercised the discretion in a different way, if it had been in a position of the trial court. It would however do so if as a result of such exercise in Justice is meted out to either of the parties or that the trial Judge gave no weight or gave insufficient weight to important consideration. See Solanke v. Ajibola (1968) 1 All NLR 46; Saffieddine v. C.O.P (1965) 1 All NLR 54 at 56 – 57. Enekebe vs. Enekebe (1964) 1 All NLR 102; Charles Osento & Co. v. Johnson (1942) A. C. 130, 138.

In the light of the above, I agree with the submission of the learned Counsel for the 1st respondent that contrary to the submission of the learned Counsel for the appellant, the onus is on the appellant to prove the irregularity in the conduct of the sale of the moveable item which the learned Counsel has failed to do. I therefore resolved the only issue adopted by me in the determination of this appeal in the affirmative in that the learned trial Judge was right in refusing to set aside the said sale.

In the instant appeal, the appellant has failed to prove any irregularity let alone that he had sustained any injury as a result of the irregularity.

In my opinion, the learned trial Judge has admiringly determined the application and I have no reason whatsoever to interfere with the ruling.

In the result, the appeal lacks merit, and is accordingly dismissed. The ruling of the learned trial Judge, Abiriyi, J, delivered on 1/2/2000 is hereby affirmed by me. I award costs to the 1st respondent assessed at N5,000.00 against the appellant.

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Other Citations: (2005)LCN/1761(CA)

Nomsal Marketing and Supplies Ltd. & Anor V. Joasy Pen Enterprises Ltd. (2005)

LawGlobal-Hub Lead Judgment Report

AMAIZU, J.C.A.

The plaintiff is a company registered in Nigeria. It carries on the business of transporter, hiring of Barges/Tugs supplies and general contractor.

It has its head office at No.11 Eboh Road, Okunmagba Layout, Warri.

By an agreement dated 29/5/96, the plaintiff agreed to hire its tugboat called “Praise Jah” to the 1st defendant. The consideration was N28, 000.00 daily, payable in advance. The agreement was to last from 1st of June 1996 to 5/7/96, a period of 35 days. The first defendant made a deposit of N350, 000.00. At the expiry of the agreement, the plaintiff on 7/7/96 issued its invoice No. 0133 to the 1st defendant demanding the balance of N630, 000.00.

The 2nd defendant who is the Chairman and the Managing Director of the 1sl defendant and the 1st defendant made a number of unfulfilled promises to pay the balance. The plaintiff filed a writ of summons against the defendants; it also obtained leave of the lower court to place the suit on the undefended list.

The claim against the defendants was jointly and severally for:-

1) the sum of N630, 000 (six hundred and thirty thousand naira) only being the amount from the defendants to the plaintiff in respect of hire/charter agreement entered into by the parties.

Interest at the rate of 10% per annum on the judgment debt until same is finally liquidated.

The defendants did not file an intention to defend the case.

They however brought a motion on notice pursuant to section 251(1)(G) of the 1999 Constitution and Order 47 Rule 1 of the High Court (Civil Procedure) Rules 1998 Delta state of Nigeria praying the court by way of preliminary objection for:-

An order striking out/dismissing this suit in its entirety for want of jurisdiction.

The grounds of the objection are:-

1) By the provisions of the Admiralty Jurisdiction Decree No. 59 of 1991, jurisdiction in Admiralty matters are vested exclusively on the Federal High Court.

(2) By the provisions of Section 251(1)(g) of the Constitution of the Federal Republic of Nigeria 1999, Admiralty jurisdiction is vested exclusively on the Federal High Court.

(3) The claim before this Honourable Court is a general maritime claim.

The lower court heard the objection and also considered the merit of the suit.

It held:-

“It is not for the defendants to deliver his defence instalmentally if he has any defence at all. It is my view that the normal procedure Order 23 of the rule is for the defendants to file his notice of intention to defend with the supporting affidavit disclosing defence, on the merit, and raise any legal issues including objection to jurisdiction….

… Having dismissed the objection, any further adjournment having regard to the procedure adopted and the clear facts of this case is to stifle justice.

In the circumstance the plaintiff has proved to the satisfaction of this Honourable court that the defendants owe the plaintiff the sum of N630, 000 unpaid. Judgment is hereby entered in favour of the plaintiff against the defendants jointly and severally for the sum of N630, 000.

The defendants shall pay interest at the rate of 5% per annum on the judgment debt till the amount is liquidated. The defendants shall pay N1000.00 cost to the plaintiff”.

The defendants hereinafter called the appellants were dissatisfied with the above judgment. They have appealed to this court on five grounds.

In accordance with the rules of this court, the parties filed and exchanged briefs of argument. The appellants formulated three issues for determination namely:-

1) Whether the trial courts assumption of jurisdiction in the suit was proper having regard to the provisions of section 2(3), (1) of the Admiralty Jurisdiction Decree No.59 of 1991 with particular regard to the accrual of the cause of action.

2) Whether it was right for the trial Judge to have entered judgment for the respondent in the course of delivering his ruling on a preliminary objection raised by the appellants’ counsel.

Or

Whether the procedure adopted by the learned trial Judge did not hinder the appellants’ right to fair hearing.

3) Whether or not the ruling of the learned trial Judge was perverse.

On the other hand, the plaintiff, now the respondent, formulated two issues for determination.

The issue, which but for the framing and the language used, boils down to the three issues formulated by the appellants.

I would consider the appeal on the three issues formulated by the appellants.

Upon the matter coming up for argument, both learned counsel adopted their respective brief of argument. Iheme Esq., of counsel urged the court to allow the appeal.

On the other hand, Oghenejakpor Esq of counsel urged the court to dismiss the appeal as lacking in merit.

I now consider the submissions of the learned counsel. I start with Issue One.

Arguing issue one, Iheme Esq., of counsel, submitted that the lower court erred in law when it over ruled the objection to its jurisdiction raised by the appellants’ counsel.

This, notwithstanding the glaring provisions of the various statutes.

The learned counsel observed that the claim for the sum of N630, 000.00 (Six hundred and thirty thousand naira) flows from the hire/use of the respondent’s Tugboat as shown on the writ of summons. He submitted that it is the particulars of claim – writ of summons and the statement of claim, in this case, the affidavit, that are to be looked into in order to determine the courts’ jurisdiction in a particular suit. He cited the case of Mpidi Barry v. Obi A. Eric (1998) 8 NWLR (Pt.562) P. 404 at P. 418 – 419.

In the light of the foregoing, he submitted that the respondents’ claim falls exclusively within the jurisdiction of the Federal High Court and not the state High Court. The reason being that the claim is for the balance of rentals on a Tugboat, which falls within the definition of a ship under section 26(1) of the Admiralty Jurisdiction Decree No. 59.

The section defines a ship to mean:-

“… a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved and includes …. ”

The learned counsel refers also to the definition of the word vessel in Black’s Law Dictionary Sixth Edition page 1562 as:-

“a ship, brig, sloop or other craft used or capable of being used, in navigation on water. ”

The same dictionary defines a Tugboat as:-

“a small powerful steamer for towing e.g. larger ships logs etc”

The learned counsel then referred to paragraph 3 of the respondent’s affidavit in support of its claim in the undefended list.

The paragraph reads that the respondent hired its Tugboat to the 1st appellant and the Charter party agreement entered into between the parties is exhibit E01 to the said affidavit:-

He observed that paragraph 3(a)-(d) of the affidavit in support of the appellant’s motion on preliminary objection which was not challenged, contradicted, or, controverted, showed clearly that the action was one for the Federal High Court.

He then submitted that the rents on the said tugboat flowed or accrued from the use or hire of the tugboat (ship), and, by the very provisions of section 2(3), (f) of the said Decree No. 59 of 1991 it qualifies as a general maritime claim.

Section 2(3) (f) thereof provides:-

“a claim out of an agreement relating to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charter party or otherwise”

The learned counsel then submitted that the word claim as used in the section is all embracing as it includes debts whether admitted or not, rentals, declarations, indemnity, claims on personal injuries arising from the use or hire of any object or equipment over which jurisdiction is conferred on the Federal High Court.

In view of the foregoing, the learned counsel submitted that the findings of the lower court that:-

“However there is no direct provision relating to an admitted debt arising from agreement affecting hire of a vessel” and

“it is my view that the issue of debt from rental and the personal guarantee of the debt are not within the substantive and specific provisions of the Admiralty jurisdiction Act and are therefore not vested exclusively in the Federal High Court such ancillary matters can be determined by the State High Court because the Federal High Court only has jurisdiction to deal with specific admiralty matter over which jurisdiction is conferred on”, is faulty, baseless and wrong as same is not supported by any statutory provision or case law.”

He submitted that the case of N. V. Scheep v. M. V “S Aras” which the lower court relied on was completely misconceived and misapplied by the lower court. Finally, the learned counsel submitted that the Admiralty jurisdiction Decree did not dichotomise between substantive and specific and ancillary matters as postulated by the trial judge. In his view, the claim of the respondent for all intent and purpose is a maritime contract whether entered on land or not, whether for debt or not so long as the contract is for something to be used or to happen in the sea. He relied on the case of Allco v. Ceekay Traders Ltd. (2001) FWLR (Pt. 47) P.1163 at 1186. He urged the court to declare the decision of the lower court a nullity as it was given without jurisdiction. And to resolve the issue in favour of the appellant.

In his reply, Oghenejakpor Esq., of counsel submitted that the lower court had jurisdiction to entertain the suit, which related to a simple debt arising from the 1st appellants’ use of the Tugboat belonging to the respondent and which debt was guaranteed by the 2nd appellant as per exhibit E03.

The learned counsel conceded that it is the claim of a plaintiff, in this Suit the respondent, that determines the jurisdiction of a court, and not the defence of the defendant here the appellant:-

He cited:-

1) Adeyemi v. Opeyori (1976) 9-10 SC 31

2) Ikine & Ors. v. Edjorode & Ors. (2002) FWLR (Pt.92) 1775 at 1811.

It is the learned counsels’ view that since court of record that heard the case (State High Court), is a superior court of record, its jurisdiction cannot be taken away, except by very clear words. And the provision of such a statute ousting the ordinary jurisdiction of a court is construed strictly. Ikine & 7 Ors. v. Edjerode & Ors. (2002) FWLR (Pt.92) 1775 at 1815; (2001) 18 NWLR (Pt.745) 446. He contended that the jurisdiction of a superior Court of record couldn’t be ousted by implication. It must be by an express provision excluding the jurisdiction. Sodehinde & Ors. v. Ahmadiya Movement in Islam (2001) FWLR (Pt.58) 1065.

The learned counsel further Submitted that the Admiralty Jurisdiction Decree, 1991, did not expressly provide that a rent accruing from a tugboat or even a ship is a general maritime claim.

He contended that the conclusion could only be arrived at by way of implication from section 2(3) F of the Admiralty Jurisdiction. And, the jurisdiction of a superior court of record cannot be ousted by implication. It is the view of the learned counsel that the respondent’s claim does not have anything to do with the movement of the Tugboat in the sea or the execution of the contract, which was concluded since 1996. The claim, he submitted related to debt for services rendered by the respondent to the 1st appellant and which debt the 2nd appellant also admitted and guaranteed in exhibit E03. It is further the learned counsel’s contention that a claim relating to debt for services rendered by a Tugboat, and the guaranteeing of such a debt are not general maritime claims under Admiralty Jurisdiction Decree 1991 but a simple debt which a State High Court has the jurisdiction to entertain. He referred in this regard to the case of Texaco Oversea (Nig.) Petroleum Co. Unlimited v. Pedmar Nigeria Limited (2002) FWLR (Pt.l26) 885 at 896 & 897; (2002) 13 NWLR (Pt.785) 326.

It is his view that the fact of the present case and the facts of the case of Texaco Overseas (Supra) and indeed issue one in the two cases are the same. He urged the court to resolve the issue in favour of the respondent.

It does seem to me from the submissions of the learned counsel for the parties that the resolution of this issue calls for the interpretation of the provisions of the Admiralty Jurisdiction Decree 1991. In particular, it calls for the interpretation of section 2(3), F of the said Decree. The section provides:-

“2(3) a reference in this Decree to a general maritime claim is a reference to:-

(f) a claim out of an agreement relating to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charter party or otherwise”. I seem to agree with lheme Esq., that the word claim as used in the section is “all embracing” in other words it is wide. The question is does the word claim cover the present claim in the suit?

A look at the record of proceedings shows that there is an agreement between Joasy Pen Enterprises Ltd. as the ‘Owner’ and Nomsal Marketing and Supplies Ltd. as the “Charterer”.

The two parties are limited liability companies. In other words, they are legal persons with capacity to enter into contract and consequently to sue and be sued.

On the other hand, the parties in the suit in the lower court are:-

J) Nomsal Marketing And Supplies Ltd.

2) Mr. fonny I. Ifeanyi

And

Joasy Pen Enterprises Ltd.

This leads to another question. Why was the action initiated against Nomsal Marketing and Supplies Ltd. and the 2nd defendant?

To find the answer one has to look at the claim before the lower court. The relevant parts of the claim are paragraphs 6 -11.

They read:-

“6. That between July 1966 and September 2000, the 1st defendant made series of unfulfilled promises to pay the sum of N630, 000.00 to the plaintiff.

7. That in September 2000, the plaintiff decided to go to court to recover the debt but the 2nd defendant pleaded and personally guaranteed to pay the sum of N630, 000.00 on or before 31/10/2000. A copy of the 2nd defendants’ guarantee is exhibited hereto and marked exhibit E03.
8. That based on the 2nd defendant pleadings and guarantees the plaintiff did not go to court in September 2000.
9. That the defendants have refused to pay the debt despite repeated demands till date.
10. That the plaintiff has now applied for a writ of summons claiming this debt and I honestly believe that the defendants have no defence to this action.
11. That I depose to this affidavit in good faith and conscientiously and in accordance, with Oath Laws”

It does seem to me from the above facts that the action was not based on the agreement between the two companies but on exhibit E03. It is because of this that the action was brought under the undefended list procedure. The procedure is a truncated form of the ordinary civil hearing peculiar to our adversary system where the

ordinary hearing is rendered unnecessary, due in the main to the absence of issue to be tried or the question of the plaintiff’s claim disputed, to necessitate such a hearing Bernard Agwuneme v. Felix Eze (1990) 3 NWLR (Pt.137) 242.Otherwise, why was the 2nd appellant made a party” He was not a party to the original agreement.

In addition to my above, I adopt EJIWUMI JSC’s Observation in the case of Texaco Overseas (Nig.) Petroleum Co. Unlimited v. Pedmar Nigeria Limited (2002) FWLR (Pt.126) 885 at 896 & 897; (2002) 13 NWLR (Pt.787) 526. The facts are similar to the facts of the present case. It is his conclusion that:-

“After due consideration of the facts narrated above, I am in no doubt that the contention of the appellant that this is a case whose facts are sound in admiralty cannot.

This is simply a case of debt owed by the appellant to the respondent. The goods, which the chartered vessels carried, have quite clearly been delivered to the appellant as agreed. I must therefore resolve this question against the appellant”.

I also resolve the issue in favour of the respondent.

Arguing issue two, Iheme Esq., of counsel, submitted that the learned trial Judge was wrong to have entered judgment for the respondent in the course of delivering his ruling on the preliminary objection without giving the appellants an opportunity to present their defence. It is his contention that by delivering the judgment, the learned trial Judge hindered the appellants’ right to a fair hearing and thus occasioned a miscarriage of justice.

The learned counsel submitted that the issue of jurisdiction could be raised at any stage of the proceedings. And, once it is raised the court must determine same before anything. He cited the following cases:-

1) Adah v. NYSC (2000) FWLR (Pt.30) P. 2539; (2001) 1 E NWLR (Pt.693) 65.

2) A.-G., Federation v. Guardian Newspapers Ltd. (2201) FWLR (Pt. 32) P. 87; (1999) 9 NWLR (Pt.618) 187.

Counsel then referred to the case of National Bank of Nig. Ltd. v. Shoyoye & Ors. (1977) 1 All NLR P. 168 at 177. He contended that the appellants were right in law to have filed their preliminary objection against the jurisdiction of the lower court to try the case without filing a notice of intention to defend and an affidavit disclosing a defence on the merit. It is his view that it was wrong for the learned trial Judge to hold that the filing of the Preliminary Objection without filing a notice of intention to defend was inimical to the defendants’ defence. He contended that the court ought to have considered and determined the objection to jurisdiction first.

And, having ruled against the objection ought to have given the appellants an opportunity to file their notice of intention to defend and an affidavit disclosing a defence on the merit before proceeding to give judgment against them.

He observed that the right to fair hearing is an entrenched fundamental right in our Constitution. He cited the case of Solomon Ogboh v. The Federal Republic of Nigeria (2002) 97 LRCN P. 946 at 956; (2002) 10 NWLR (Pt.774) 21. He finally referred to the case of Ozara Ekuma v. Silver Eagle Shipping Agencies (PH) Ltd. (1987) 4 NWLR (Pt.65) 472, which was decided on the undefended list procedure wherein the issue of fair hearing was emphasized.

He urged the court to resolve the issue in favour of the appellants.

In his reply, Oghenejakpor Esq., of counsel observed that the undefended list procedure is a special procedure and a defendant who intends to defend an action placed under the undefended list is under an obligation to file a Notice of Intention to defend and in affidavit disclosing defence on the merit, at least five days before the day fixed for the hearing. Order 23 Rule 3 (1) of the Bendel State High Court (Civil Procedure) Rules 1988 applicable to Edo State was referred to. He cited Owen Alale & Ors. v. Okwo Olu (2000) FWLR (Pt. 23) 1294 at 1306; (2001) 7 NWLR (Pt.711) 119.

It is the view of the learned counsel that the lower court gave the appellants ample opportunity to present their defence, if they had any. He observed that the suit was brought under the undefended list and was called up for hearing on 11/6/2001. The appellants asked for adjournment on that day, and on 11/7/2004 when the case was also fixed for hearing. He contended that as the appellants neglected to file their notice of intention to defend, and an affidavit disclosing defence on the merit, they cannot complain of being denied the right of fair hearing.

He submitted that the appellant chose not to file a Notice of Intention to defend as required by the Rules but instead resorted to file a motion to challenge the jurisdiction. It is his view that the intention of the appellant was to delay the trial. He relied on Sylvester Ogbanu v. Gabriel Oti (2000) 8 NWLR (Pt .670) P.582.

He urged the court to resolve the issue in favour of the respondent.

Fair hearing in relation to a trial means a trial conducted according to all the legal Rules formulated to ensure that justice is done to the parties. What constitutes fair hearing depends on the circumstances of each case. The real test however is an objective one. Saba v. Nigeria Civil Aviation Training Centre (1986) 5 NWLR (Pt.42) 514. Order 23 of the High Court (Civil Procedure) Rules, 1988, regulates hearing of cases under the Undefended List Procedure. Rules 3 (1) thereof provides:-

“If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days, before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence, on the merit, the court may give him leave to defend upon such terms as the court may think just”

And under Rule 4:-

“Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”

In the present case, the case was entered on the undefended list on 17th day of May 2001. It was adjourned to 11/7/2001. On the 10th of July 2001, the appellant brought a motion on notice for an order striking out/dismissing the suit in its entirety for want of jurisdiction.

From the foregoing facts the provisions of Order 23 Rule 3(1) of High Court (Civil Procedure) Rules, 1988 were not complied by the appellants. The learned trial Judge was therefore justified to hear the case under rule 4. The issue of fair hearing does not arise as the appellants did not fulfill the condition precedent to their being heard.

Issue 2 is resolved in favour of the respondent.

On issue 3, Iheme Esq. of counsel submitted that the decision of the lower court is perverse and same occasioned a miscarriage of F justice. He contended that from the reasoning of the trial Judge in his ruling, a defendant in a suit brought under Order 23 of the High Court (Civil Procedure) Rules, 1988 applicable to Delta State, cannot raise any objection, particularly one on jurisdiction, without first filing his notice of intention to defend and the affidavit disclosing a defence on the merit. It is his view that it is not the intendment of Order 23. He submitted that the learned trial Judge shut his eyes to the fact that if the defendants had filed a notice of intention to defend and affidavit disclosing a defence on the merit, they would have been deemed to have submitted to jurisdiction and thereby caught by the principle of waiver. He relied on:-

1) Okechukwu Adimora v. Nnanyelugu Ajufo (1988) 3 NWLR (Pt. 80) P. 1 at 15 – 16.

2) Bisiruyu Agbomeji v. Laidi Bakare (1998) 9 NWLR (Pt.564) P.1 at P. 8.

He urged the court to resolve the issue in favour of the appellants.

I observe that the respondent treated issues 2 & 3 together.

Having said this, the point has to be made that it is only where the conclusion arrived at by a trial court or tribunal is not justified by the evidence led by parties or where vital pieces of evidence were not adverted to, that a decision is said to be perverse. Alhassan Ado Garba v. Alhaji Saidu Ali Galadima (1993) 4 NWLR (Pt.285) P. 72.

In the present case, one has to note that at the time the appellants filed their preliminary objection, the lower court could have given its judgment under the provisions of rule 4 supra. It follows that the point being made by the learned counsel cannot be sustained.

Consequently, the Issue 3 is resolved in favour of the respondent.

Having resolved all the issues in favour of the respondent, the appeal fails as having no merit. It is accordingly dismissed. I make no order as to costs. The appeal is dismissed.

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Other Citations: (2005)LCN/1760(CA)

Akinremi Oritsewetin Nanna V. Mrs Ekpehose Maryanne Nanna (2005)

LawGlobal-Hub Lead Judgment Report

ABBA AJI, J.C.A.

This appeal is against the decision of Hon. Justice F.O. Akinbami of the Edo State High court holden at Benin City in suit No. B/875/2000 delivered on the 19th day of March, 2002 wherein the learned trial Judge dismissed the petitioner’s petition for dissolution of marriage, but granted the cross petition of the respondent for decree NISI and other ancillary reliefs.

The appellant who is a medical practitioner was the petitioner in the lower court. He petitioned the lower court for the dissolution of his marriage with the respondent/cross petitioner on the ground that the marriage has broken down irretrievably. He claimed inter alia in paragraph 17 of his amended petition, the following orders:-

“(a) A decree for dissolution of marriage on the ground that the marriage has broken down irretrievably.

(b) An order of the court granting the custody of the 2(two) children namely; Orode Nanna and Mofe Nanna to the petitioner as adequate arrangement has been made in this regard… Alternatively, an order granting the custody of the children to the petitioner whenever they are on holidays or the petitioner be allowed unrestricted access to the children without any interference from any body whatsoever.”

The grounds upon which the petition is founded is as contained in paragraph 11(a) and (b) of the amended petition. Paragraph 11(a) and (b) reads:-

“11. That the marriage between the petitioner and the respondent has broken down irretrievably upon the following:-

(a) That since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

(b) That the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition and the respondent does not object to a divorce being granted.”

The respondent in response to the above, not only filed an answer but also cross petitioned on the ground inter alia for a dissolution of the marriage and custody of the two children.

The facts of the case was that the petitioner and the respondent/cross petitioner were married on the 9th day of November, 1991 at the St. James Anglican Church, Akpakpava Road, Benin City.

After the marriage, they both cohabited and lived together at the Petroleum Training Institute, Warri until October, 1992. From October 1992 to October, 1993, they lived and cohabited in London. They returned to Nigeria in October, 1993 and lived together until sometime in December, 1996 when the respondent left the matrimonial home and have lived apart for a period of more than four years proceeding the presentation of the petition. The two children of the marriage have been living with the respondent.

The petitioner at the trial testified in support of his claim and tendered several exhibits. He did not call any witness. Also, the respondent/cross petitioner testified and also tendered several exhibits to support her position. She too did not call any other witness. At the conclusion of evidence, the respective counsel addressed court. In a considered judgment delivered on the 19/3/2002, the learned trial Judge dismissed the petition and granted the respondent/cross petition decree NISI, custody of the children and other ancillary reliefs. This is what the trial Judge said in giving judgment to the respondent/cross petitioner:-

“I hereby dismiss the petition of the petitioner which has not been proved and grant a decree Nisi to the respondent on the basis of successfully proving the cross petition.

(i) It is hereby ordered that the petitioner should pay a monthly sum of N50,000.00(fifty thousand naira) for the maintenance and upkeep of the children.

(ii) To pay the school fees, books and other school expenses for the children as shown on the bills sent by the school from time to time.

(iii) A monthly sum of N25,000.00 (twenty-five thousand naira) for the maintenance and upkeep of the respondent/cross petitioner until she gets married to another man.

(iv) It is hereby ordered that custody of the children is granted to the respondent/cross petitioner with access to the petitioner only at reasonable times of the day.”

It is against this judgment that the appellant has now appealed to this court upon five (5) grounds of appeal vide a notice and grounds of appeal dated the 18/6/2002. The grounds of appeal without their particulars are hereby reproduced.

“1. The learned trial Judge failed to consider the evidence adduced by the petitioner as required by law before reaching a conclusion that “The petitioner has not proved according to the provisions of section 15 of the Matrimonial Causes Act that they (sic) marriage has broken down irretrievably.

2. The learned trial Judge misdirected herself when she held that:

“I agree with the learned counsel that the conduct of the petitioner led to the expulsion of the respondent/cross petitioner from the matrimonial home.”

3. Having held that “No. single parent can adequately take care of children”, the learned trial Judge erred in law when she proceeded to award custody of the children solely to the respondent.
4. The learned trial Judge erred in law by awarding the respondent cumulative sum of N75,000.00 monthly as maintenance and up keep for herself and the children which sums were not proved as required by law.
5. The learned trial Judge erred in law when she held that “the cross petitioner has sufficiently proved matrimonial cruelty on the part of the petitioner.”

In compliance with the rules of this court, briefs of argument were duly filed and exchanged by the respective counsel. In the appellant’s brief settled by J.I. Odibeli, Esq. deemed filed on the 15/9/2004, five issues were identified for the determination of the appeal.

The issues are:-

“1. Whether the learned trial Judge was right in concluding that the appellant did not prove that the marriage between the parties has broken down irretrievably, having failed to consider the evidence adduced by the petitioner as required by law.

2. Whether the learned trial Judge was right when she held that it was the conduct of the petitioner that led to the expulsion of the respondent/cross petitioner from the matrimonial home.
3. Whether the learned trial Judge was right in awarding custody of the children of the marriage solely to the respondent having held that no single parent can take care of children.
4. Whether the learned trial Judge was right in awarding the respondent the cumulative sum of N75,000.00 monthly as maintenance and upkeep when such sums were not proved as required by law.
5. Whether the learned trial Judge was right in holding that the cross petitioner (respondent herein) has sufficiently proved matrimonial cruelty on the part of the petitioner.”

In the respondent’s brief settled by S. Iredia Osifo, Esq. dated the 29/9/2004, and filed on the 30/9/2004. The respondent adopted the five issues formulated by the appellant for determination of the appeal.

At the hearing of the appeal, learned counsel adopted and relied on his brief dated 19/8/2004 and deemed filed on the 15/9/2004. Learned counsel urged us to allow the appeal, to reverse the judgment of the lower court and substitute there from, granting the divorce on the basis of the amended petition and to also make an order giving custody of the children to the appellant or joint custody to both the appellant and the respondent.

The respondent has urged us to dismiss the appeal and affirm the judgment of the trial court. This appeal will be resolved on the issues as formulated by the appellant. On issue one in the appellant’s brief of argument, it is submitted that the learned trial Judge erred in law when she concluded that the appellant did not prove that the marriage had broken down irretrievably according to the provision of section 15 of the Matrimonial Causes Act. He submitted that in coming to the above conclusion, the learned trial Judge failed to consider the evidence adduced by the petitioner as required by law. Learned counsel referred to paragraph 11 of the amended petition and submitted that the petitioner stated expressly that the marriage between the petitioner and the respondent has broken down irretrievably on the following grounds:-

“(a) That since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

(b) That the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of this petition and the respondent does not object to a divorce being granted.”

Learned counsel referred to section 15(2)(a) – (e) of the Matrimonial Causes Act Cap. 220, Laws of the Federation of Nigeria, 1990 for the facts to be satisfied by a petitioner for the court to hold the marriage to have broken down irretrievably. He referred to the case of Akinbuwa v. Akinbuwa (1998) 7 NWLR (Pt.559) 661 at 669 wherein it was held that:-

“A petitioner for the dissolution of a marriage must prove one of the facts contained in section 15(2)(a) – (e) of the Matrimonial Causes Act 1970 before such petition can succeed.”

Learned counsel referred to paragraph 7(a) of the amended petition wherein he averred to the fact that cohabitation between him and the petitioner ceased sometime in 1996 when the respondent voluntarily and without consent of the petitioner or any just cause left the matrimonial home. He submitted that the petitioner led evidence to the effect that the respondent left the matrimonial home in 1996 and that she did so without his permission. That these pieces of evidence by the petitioner were not denied nor contradicted by the respondent. It was further submitted that the petitioner by this evidence has established that the petitioner and the respondent have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition as contemplated by section 15(2)(e) of the Act. Furthermore, that the respondent did not object to a decree being granted. It was also submitted that the appellant led evidence to show that they have lived in separation for more than 4 years when the appellant testified at page 34 of the record lines 19-23 that:-

“I have never seen her or discuss with her since then. She has never gotten in touch with my home since she left home with the children.”

It is contended by the appellant’s counsel that the petitioner has established compliance with section 15(2)(e) and (f) of the act. It is further submitted that the evidence of the petitioner having not been contradicted by the respondent, the court is enjoined to accept it as correct, citing Union Bank of Nigeria Plc v. Fajebe Foods & Poultry Farm Ltd. (1998) 6 NWLR (Pt. 554) 380 at 405. It is also argued that the learned trial Judge did not review the evidence adduced by the parties and went on to hold at page 117 lines 18-21 of the record, that:-

“The petitioner has not proved according to the provision of section 15 of the Matrimonial Causes Act that the marriage has broken down irretrievably.”

It is further submitted that the learned trial Judge did not place the evidence on any imaginary scale and no finding was made in respect thereof before reaching the conclusion that the appellant’s petition was not proved; that such a conclusion is perversed citing Shamaki v. Baba (2000) 13 NWLR (Pt. 685) 566 at 569; Mogaji v. Odofin (1978) 4 SC. 91; Whyte v. Jack (1996) 2 NWLR (Pt. 431) 407 at 574 and Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527. The court was thus asked to resolve this issue in favour of the appellant.

In his response to this issue, the learned respondent’s counsel submitted that the learned trial Judge was right when he held that the petitioner/appellant did not prove his case as to entitle him to be granted a divorce on the basis of his petition. Learned counsel referred to paragraph 7(a) of the petition wherein it was pleaded that:-

“7(a) Cohabitation ceased sometimes in 1996 when the respondent voluntarily and without the consent of the petitioner or any just cause left the matrimonial home without giving the petitioner any reason for her departure despite repeated appeals from the petitioner’s friends and well wishers, the respondent has refused to return to the matrimonial home and resume cohabitation.”

Learned counsel also referred to the evidence of the appellant under cross-examination at page 40 of the records wherein the appellant stated that his separation from the respondent was consensual wherein he stated at page 40 line 24 that,

“Two of us agreed on that.”

It is submitted that whichever version of the appellant’s stories the court believed, none was capable of proving the allegation contained in paragraph 11 of the amended petition. That it was not the duty of the court to resolve contradictions in the evidence of the appellant and that the only conclusion which the trial court was entitled to draw was that the appellant who had the burden to prove this case did not discharge that burden. He submitted that for a petitioner to succeed in proving his entitlement to a decree for dissolution of marriage under section 15(2)(c) of the Act as pleaded in paragraph 11(a) of the appellant’s amended petition, the appellant must satisfy the court in respect of any of the provisions set out in section 16(1)(a) – (g) of the Matrimonial Causes Act. It is submitted that the appellant did not satisfy the lower court with any of these facts set out in section 16(1)(a)-(g). That the petitioner/appellant did not also prove matrimonial cruelty on the part of the respondent which is essential ingredient of section 16(1)(a)(g). It is also submitted that the facts pleaded in paragraph 11(b) of the amended petition is not one of these facts set out in section 15(2) of the Act and which the appellant can rely in proof of the irretrievable break down of a marriage. That pleading do not constitute proof unless supported by evidence which is satisfactory and therefore capable of belief. It is submitted that in the circumstances, the learned trial Judge was right in holding that the petitioner did not prove his case. We are urged to resolve this issue against the appellant.

By virtue of section 15(2) of the Matrimonial Causes Act (Supra) a petitioner for the dissolution of a marriage must prove one of the facts contained in section 15(2)(a) – (f) of the Act before such petition can succeed. The section provides:-

“15(2) The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts;

(a) That the respondent has wilfully and persistently refused to consummate the marriage;

(b) That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.

(c) That since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

(d) That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;

(e) That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted.

(f) That the parties to the marriage; have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition.

(g) That the other party to the marriage has for a period of not less than one year failed to comply with a decree or restitution of conjugal rights made under this Act”

(h) That the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.”

In paragraph 11(a) and (b) of the amended petition, the appellant averred that the marriage between the petitioner and the respondent has broken down irretrievably upon the following grounds:-

(a) That since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with respondent; (section 15(2)( c) of the Act).

(b) That the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted. (section 15(2)(e) of the Act).

The facts relied upon by the appellant as constituting the ground for the dissolution of the marriage are as contained in sub paragraph (i) (ii) (iii) and (iv) of paragraph 11. They are:-

“(i) That from the inception of the marriage, the respondent had conducted herself in a manner unworthy of a married woman when sometimes in 1994 she abandoned the matrimonial home only to come back afterwards,

(ii) That during the cohabitation period, the petitioner got information that the respondent was committing adultery through Mrs. Imasuen.

(iii) That after the respondent deserted/abandoned the matrimonial home in 1996, despite repeated intervention by the petitioner and other well meaning people to make her return to the matrimonial home, she refused threatening that she was finished with the marriage.

(iv) That there was no consummation of the marriage for a greater period of cohabitation between the petitioner and the respondent, as love, affection and conjugal kindness was virtually non existence between the parties for a greater part of the cohabited period.

Now the question is, has these facts been established by the appellant before the lower court and if they are so established, are they sufficient facts to ground a dissolution of marriage under any of the sub paragraph of section 15(2) of the Act? There was evidence before the lower court no doubt from the appellant that the respondent packed out of the matrimonial home sometimes in 1996. See page 20(b) lines 20 of the record. It is also a fact that respondent has no objection to a decree being granted. It is contended that the appellant has established section 15(2)(e) and (f) of the Act that they have lived apart for a continuous period of at least two and three years immediately preceding the presentation of the petition. The appellant led evidence in support of these facts before the lower court. Whether these pieces of evidence by the appellant were not denied or contradicted by the respondent will also be considered. But there is more to it than meets the eye. However, I consider paragraphs 5, 6 and 7 of the respondent’s further amended answer to the petition relevant. They are hereby reproduced.

In specific answer to paragraph 7 of the amended petition, the respondent avers as follows:-

(a) That it was the misconduct of the petitioner that compelled the respondent leave the matrimonial home. To that extent, therefore, the petitioner was in constructive desertion.

(b) That the petitioner insisted persistently that the respondent should leave the matrimonial home. And to press home his demand he sometime threatened to use violence to remove the respondent from the home.

(c) It is not true as alleged in the petition absconded from the matrimonial home in 1994 and that each time she left the home he would make several appeals to the home he would make several appeals to the respondent to return.

(d) Sometime after Mrs. Imasuen began maligning her character, respondent was compelled to file an action against her which action was withdrawn after the intervention of the Benin branch of the Nigerian Bar Association. She even wrote a letter of apology to the respondent. The respondent is not aware if there was any form of inter-action between the said Mrs. Imasuen and the petitioner.

(e) After respondent was forced out of the matrimonial home the petitioner only came to know from the respondent the where about of the children of the marriage. Respondent immediately left the office to go and bring the children the petitioner had gone leaving a handwritten note behind returned to respondent’s office again on 27/2/97 but he met the respondent absent. Petitioner also left a note on that occasion.

(f) It is the respondent that has single-handedly paid the school fees of the children of the marriage and has been responsible solely for their upkeep. The only occasion petitioner felt like giving his children some money he gave them postal orders to go to the post office to cash them. The children have always been adequately cared for. They have been doing very well in school.

(g) The petitioner has never been denied access to the children. He has refused to see the children as a way of avoiding his responsibilities to them.

6. In further answer to paragraph 11 of the petition, the respondent avers to the contrary that the petitioner is the one that has rather behaved in a way that the respondent cannot reasonably be expected to live with him. He it was, that deserted the respondent for a period of at least 4 years immediately preceding the presentation of the petition and the petitioner does not object to a decree being granted.
7. The respondent specifically denies the averments in paragraph 11 (b) (i) – (iv) and avers to the contrary that it was the petitioner that conducted himself in an unworthy manner and denies abandoning the matrimonial home in 1994. The information which the petitioner alleged he received that the respondent was committing adultery is not only unfounded but exists only in the imagination of the petitioner. It was the petitioner who refused to accede to the pleas of the respondent’s relations, including her father, mother and sisters including one Miss Sara Jacob and the petitioner insisted that he was no longer interested in the marriage with the respondent. In fact it was the petitioner that was not a friendly partner.”

The respondent testified in support of the facts averred in paragraphs 5, 6 and 7 above, she testified as follows:-

“We lived at Petroleum Training Institute at Warri till 1992 October, went to England in October, 1992. We lived there till 1995 about April or May, 1995 when the petitioner injured me seriously and drove me out of the house …

He was beating the house girl and I held him and he beat me and I fell to the ground. I felt pains in my jaw. He threaten that in was there that night that it was my corpse that my parents will come and carry…

He went back inside and the way he came back outside and the way he was coming back I ran away. I was away for 6 months till December, 1995. I stayed till December, 1996. Then we lived till November/December, 1996, by then he had become violent and was putting me through (page 42 lines 10 – 30 of the record of appeal). She continues further.

“Around the end of November/ December, 1996 I came home from work, he came from work and asked why there was a wire on the floor. He called the house girl and the house girl said it was my daughter that was playing there…

That she should demonstrate how the wire was brought down. He was shouting on the little girl and she was shivering. I went far away from him. He came to call me that this is the end. That he was no longer interested in the marriage. I must pack out of the house. I told him I had no where to go to. He gave me 3 weeks. When he see I did not move he changed it to 7 days. I called my sisters in Lagos told her what had happened. My sister said she could come and beg him. She came and she pleaded. We knelt down. He refused. On the very day I packed my things. He started to threaten my life. I got a bus and removed my things, before I got to the gate he asked people to stop me that he wanted to inspect the things I carried in the bus. I showed him that they were fans that the children would need. I took my suit case and the surfcare (Sic) and the children and the house girl and left. He forced me out of the matrimonial home.”

The respondent also stated her experience with the appellant while they were in London when the appellant attempted to hit her with his fist when the blow missed her and his hand came out through the door. (Page 52 lines 14-16 of the record).

Now, if all the evidence as adduced by the respondent is put on the imaginary scale, would the evidence adduced by the appellant out weigh that adduced by the respondent? Under Nigerian law, he who asserts in the affirmative and would fail if no evidence is called has the burden under section 136 of the Evidence Act to prove the assertion. In the instant case, the burden of proving whether the marriage has broken down irretrievably lies on the appellant.

In divorce proceedings, the petitioner must prove one of the facts contained in section 15(2)(a) – (h) of the Matrimonial Causes Act before he can succeed and where the petitioner fails to prove that, the petition for the dissolution of the marriage will be dismissed notwithstanding the fact that the divorce is desired by both parties. See Akinbuwa v. Akinbuwa (1998) 7 NWLR (Pt. 559) 661. In the instant case therefore, the burden of proof is on the appellant who is alleging that the respondent has behaved in such a way that he cannot reasonably be expected to live with the respondent. Unless the petitioner satisfies the court on both of these matters the court will refuse to hold that the marriage has broken down irretrievably. Two sets of facts call for proof under section 15(2)(c) of the Act. They are (1) the sickening and destable behavior of the respondent and (2) that the petitioner finds it intolerable to live with the respondent. These two facts which are deduced from section 15(2)(c) of the Act are severable and independent. The petitioner must prove the destable act or such condemnable conduct that the appellant find intolerable and then proceed to prove that he finds it intolerable to live with the respondent. See Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 151.

Now the question that arises is whether the appellant has proved the allegations contained in his amended petition? Paragraph 11(a) and (b) of the petition is equivalent to section 15(2)(c) and (e) of the Act. The provisions of sub-section (2) of the Act and paragraph 11(a) and (b) of the amended petition have all been reproduced in this judgment. Where in a petition for dissolution of marriage founded under section 15(2)(c) of the Act the court hearing the petition for the dissolution of marriage shall hold that the petitioner has satisfied the court of the fact mentioned in section 15(2)(c) if the petitioner satisfied the court with either of the items specified in the said section 16(1)(a) – (g) of the Act. None of these items as specified in the said section 16(1) (a) – (g) of the Act have been established by the appellant before the lower court. The appellant has not satisfied the lower court with any of those facts set out in section 16(1)(a) – (g).

In fact, not an iota of such evidence was adduced by the appellant in support of this ground under section 15(2)(c) and I so find.

The test whether the petitioner can or cannot be expected to live with the respondent is objective. It is not therefore sufficient that the petitioner alleges that he cannot live with the respondent because of her behaviour, the behaviour must be such that a reasonable man cannot endure. What would amount to behaviour which the petitioner cannot reasonably be expected to put up with, has been provided in section 16 (1) of the Act. The section provides:-

“Without prejudice to the generality of section 15(2) (c) of this Act, the court hearing a petition for a decree of dissolution of marriage shall hold that the petitioner has satisfied the court of the fact mentioned in the said section 15(2)( c) of this Act if the petitioner satisfies the court that:-

(a) since the marriage, the respondent has committed rape, sodomy or bestiality; or

(b) since the marriage, the respondent has, for a period of not less than two years;

(i) been a habitual drunkard; or

(ii) habitually been intoxicated by reason of taking or using to excess any sedative, narcotic or stimulating drug or preparation, or has for a part or parts of such a period, been a habitual drunkard and has, for the other part or parts of the period, habitually been so intoxicated; or (c) since the marriage, the respondent has within a period not exceeding five years:

(i) suffered frequent convictions for crime in respect of which the respondent has been sentenced in the aggregate to imprisonment for not less than three years; and

(ii) habitually left the petitioner without reasonable means of support; or

(d) since the marriage, the respondent has been in prison for a period of not less than three years after conviction for an offence punishable by death or imprisonment for life or for a period of five years or more, and is still in prison at the date of the petition; or

(e) since the marriage and within a period of one year immediately preceding the date of the petition, the respondent has been convicted of:

(i) having attempted to murder or unlawfully to kill the petitioner; or

(ii) having committed an offence involving the intentional infliction of grievous harm or grievous hurt on the petitioner or the intent to inflict grievous harm or grievous hurt on the petitioner; or

(f) the respondent has habitually and wilfully failed, through out the period of two years immediately preceding the date of the petition, to pay maintenance for the petitioner:

(i) ordered to be paid under an order of, or an order registered in a court in the federation; or

(ii) agreed to be paid under an agreement between the parties to the marriage providing for their separation; or

(g) the respondent:-

(i) is at the date of the petition, of unsound mind and unlikely to recover; and

(ii) since the marriage and within the period of six years immediately preceding the date of the petition, has been confined for a period of, or for periods aggregating, not less than five years in an institution where persons may be confined for unsoundness of mind in accordance with law, or in more than one such institution.”

On paragraph 11(b) of the amended petition which is equivalent to section 15(2)(c) of the Act, the fact that the parties have lived apart for continuous period of two years immediately preceding the presentation of the petition is not by itself conclusive proof upon which divorce could be granted on the ground that the marriage has broken down irretrievably. The evidence of desertion as adduced in the instant case, is not the desertion contemplated under section 15 (2)( e) of the Act. Desertion within the meaning of section 15 (2) (e) of the Act must be one where any of the spouse abandons and forsakes without any justification, thus renouncing its responsibilities and evading its duties. Based on the foregoing therefore the learned trial Judge was right to have come to the conclusion that the appellant has not proved his case as required by law and I so hold. This issue is therefore resolved against the appellant.

No argument was advanced by the appellant in support of issue (2) two and is therefore deemed to have been abandoned and I so hold. It is accordingly struck out.

I now move to issue three, whether the learned trial Judge was right in awarding custody of the children of the marriage solely to the respondent having held that no single parent can take care of children. Learned counsel for the appellant referred to paragraph 17(b) of the amended petition where he prayed the court for the custody of the two children, Orode Nanna and Mofe Nanna as adequate arrangement has been made for them by the appellant in terms of Education Endowment Policy, enrollment into the educational institution of high standard in Effurun Delta State and bringing them up in accordance with strict societal norms and values and according to the religion they may choose to belong. Other arrangements are for them to be taken care of by an aunty in a five bedroom apartment and a standard medical attention. See paragraph 7(J)(a) – (c) of the appellants amended petition. It is submitted for the appellant that, the appellant led evidence in support of the above averments and tendered exhibits B. L. D. E. in support. It is also contended that the appellant’s evidence was not shaken by way of cross-examination neither was it discredited in any manner. Further that the respondent stated under cross-examination that the children need both parent, that she alone cannot take care of them. It is contended that notwithstanding these facts before the lower court, the court proceeded to award custody of the children solely to the respondent. It is also argued that throughout the entire pleading and the evidence of the respondent, no mention was made of any arrangement put in place for the children to warrant the award of the custody of the children solely to the respondent and that is so notwithstanding the finding of the learned trial Judge that no single parent can adequately take care of children. That having a mother who is a senior magistrate is not a recognised ground for deciding on which spouse can take care of the children as found by the trial Judge. Learned counsel referred to section 71(1) of the Act and submitted that in deciding whom to grant custody of the children of a marriage to, the court will take into consideration certain factors which include the ages of the children, the arrangements made for their accommodation, education, welfare and general upbringing.

Learned counsel also referred to S. A. Adesanya, Law of Matrimonial Causes, page 227 and submitted that no reason whatsoever was given by the learned trial Judge for rejecting all the detailed proposals of the appellant for the children’s welfare. On the attitude of court to unchallenged evidence, learned counsel referred to Union Bank of Nigeria Plc. v. Fajebe Foods & Poultry Farm Ltd. (1998) 6 NWLR (Pt. 554) 380 at 405; and Towoeni v. Towoeni (2001) 12 NWLR (Pt. 727) 445 at 463.

It is also further submitted that custody should have been given to the appellant who has shown that he is capable of taking care of the children citing Nzelu v. Nzelu (1997) 3 NWLR (Pt. 494) at 472. In the alternative, learned counsel urged us to grant joint custody of the two children of the marriage to the parties which he submitted would have been more in the interest of a stable upbringing of the children and more in accord with dictate of equity.

For the respondent, it is submitted that the lower court was right in awarding custody of the two children of the marriage to the respondent. It is submitted that the arrangements made by the appellant in his petition was merely cosmetic having regard to the antecedents of the appellant during the subsistence of the marriage and after the spouses separated. It is contended that the respondent’s evidence about the attitude of the appellant towards the children of the marriage were neither denied nor contradicted and that it was therefore not sufficient for the appellant to put in place a so called educational endowment policy for the children of the marriage. It is submitted that there was evidence before the court by the respondent that although the appellant had private cars he deliberately refused to use them to carry his children to school and instead he used his employer’s ambulance to carry them to school. That when the ambulance breaks down, the respondent would resort to the use of taxi to carry children to school. Sometimes too, they would not go to school at all because the ambulance had broken down, it is argued, if these things happened to the children while their mother was still around, what would have happened after the respondent was divorced from the appellant? It is submitted that the interest and welfare of the children is of paramount importance in determining custody of the children of a marriage, citing Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 151, Williams v. Williams (1987) 2 NWLR(Pt. 54) 66 and Hayes v. Hayes (2000) 3 NWLR (Pt. 648) 276. It is further submitted that the expression “no single parent can adequately take care of the children” used by the learned trial Judge has nothing to do with custody of the children. It includes maintenance, upbringing and educational advancement among others, while custody means physical presence of the children in particular. That the holding that “no single parent can adequately take care of the children” is completely misplaced by the appellant. It is submitted that in deciding custody, a number of factors are taken into consideration which also include the conduct of the appellant. Learned counsel also referred to a book, Laws of Matrimonial Causes 1st edition at page 227 by Prof. S. A. Adesanya, and submitted that a court should not grant custody of children in their formative years to a man who did not care about the future of such children. Learned counsel referred to the conduct of the appellant towards his children and submitted that these are not consistent with those of a caring and loving father to whom the trial court can grant custody of the children. It is submitted that before granting custody to the respondent, the learned trial Judge adequately and meticulously reviewed the evidence before it. Learned counsel urged us to resolve this issue against the appellant.

By virtue of section 71(1) of the Matrimonial Causes Act 1970, the court regard the interest of the children as the paramount consideration in the award of custody of children to a party. Section 71(1) of the Act which relates to custody order provides:-

“In proceedings with respect to the custody, guardianship, welfare, advancement or education of the children of a marriage, the court shall regard the interests of those children as the paramount consideration; and subject thereto, the court, may make such order in respect of these matters as it thinks proper.”

The importance of custody of the children of marriage in matrimonial proceedings need not be over emphasised. In Hayes v. Hayes (2000) 3 NWLR (Pt. 648) 276, this court per Aderemi, JCA, said at 290, thus:-

“Throughout the gamut of matrimonial proceedings, the interest of the child of the marriage, as to the custody and welfare is held paramount. See (1) Anyaso v. Anyaso (1998) 9 NWLR (Pt. 564) 150, 2 Oyelowo v. Oyelowo (1987) 2 NWLR (Pt.56)239 4 S.C. 32. Such is the paramountcy that it has been held that a decree shall not be made absolute until the court is satisfied as to arrangements made for the care and upbringing of the child of the marriage; and a decree absolute made on an inadvertent non-compliance with the custody and maintenance of the child shall be declared void.”

What is paramount in all matters relating to custody and welfare of the child of marriage, and the dominant issue that calls for careful examination and consideration is what is in the absolute interest of that child or those children. The appellant averred in paragraph 7(J) of his amended petition regarding the arrangement of the children as follows:-

“7(1) The petitioner state that he has made adequate arrangements for the children of the marriage such as:

(a) Educational Endowment Policy with the Industrial and General Insurance Company Nigeria with policy No. 5, 182188 and 182189 for Orode Nanna and Mofe Nanna respectively. The Policy has been in force since 1997 or thereabout.

(b) The petitioner has worked out modalities to register/enroll them in the educational institution of high standard in Effurun, Delta State.

(c) The petitioner is determined to bring his children up in strict accordance with societal room (sic) and values and according to the religion they may choose to belong to.

(d) For the children to be taken good care of by an aunty of the petitioner to stay with the children in a 5 bedroom apartment allocated to the petitioner in PTI Effurun.

(e) For the children to receive standard medical attention from the petitioner’s employer clinic (PTI Clinic) Effurun, or any of their reputable medical center/clinic/hospital. As the clinic has modern equipments and a specialised and experience personel.”

The appellant gave evidence in support of the averment of the adequate arrangements for the education, general well-being and upbringing of the children. It is contended that the learned trial Judge overlooked his evidence which was predicated on his pleadings wherein he set out his arrangements and plans for the children, while agreeing with? That without such plans properly laid down. What then is the evidence in support of the grant of custody in favour of the appellant?

The appellant in his evidence stated at page 35 lines 18 – 21 of the records as follows:-

“I have arranged for their schooling. My daughter’s secondary school and my son’s primary school. There is an aunty that stay with me presently. I had arranged education insurance policy for them.”

The educational endowment plan policy and the life assurance premium certificates were admitted in evidence as exhibits B, C, D, & E. He also stated at page 35 line 29 that,

“I presently reside in a 5 bedroom bungalow.”

He stated further at page 35 lines 31 – 32 as follows:-

“They are entitled to free medical service from my place of work petroleum training institute.”

The above is the testimony of the appellant upon which he founded his prayer for an order of custody of the two children.

The respondent also testified that since she moved out of the matrimonial home in 1996 with the children, the appellant only came once to ask of them. That they were attending school and she was responsible for paying their school fees. She tendered several receipts for payment of school fees for the children. That her daughter is now in a secondary school. That she has met all the financial requirements for the children. That their father was going to their school to see them after he filed the petition in 2000 and he gave them postal orders. That the appellant cannot take care of the children because he has never shown enough interest in their education. That when she registered their daughter in school he never used any of his cars to take the children to school. The children were taken to school in ambulance after much plea. Any time the ambulance was going for burial he could say that the children should stay at home.

If the ambulance breaks down he would ask the children to stay at home. That she would have to take the children in a taxi. That the petitioner does not care about their welfare. The best he can do is to promise them money. That their daughter did very well in school and he said he could not afford N7,000.00 school fees. That the appellant brought expired drugs to their son in the school in May, 2001. A bottle of ventolin that expired in March, 1998.

The above also is the testimony of the respondent upon which she founded her prayer for the custody of the two children and which was granted in her favour. Although there is no settled rule that a child of tender age should remain in the custody of the mother, I take the view that custody of a child of the marriage came along with it, the all important implications of the preservation and care of the child’s person, morally, physically and mentally. I have stated above the evidential account of the arrangement of the appellant put together for the well-being of the children. If same is considered against the back ground drop of the evidence adduced by the respondent, can that be said to be sufficient as to warrant the grant of the custody of the children to the appellant? I think not. There is nothing therein to persuade the court to grant custody of the children to the appellant. I agree with the respondent’s counsel that such arrangements are merely cosmetic in view of the antecedents of the petitioner during the subsistence of the marriage. What the children need is not a mere endowment policy and a 5-bedroom apartment.

The appellant’s aunty cannot take the place of their mother. The antecedents of the appellant reveals it all. It will amount to a negation of the well settled principles that the welfare and the interest of the child or children of the marriage must be accorded paramountcy were an order of custody of the children of the marriage be made in favour of the appellant based on the said cosmetic arrangement. See Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 151; Akinbuwa v. Akinbuwa (1998) 7 NWLR (Pt. 559) 661; Anyaso v. Anyaso (1998) 9 NWLR (Pt. 564) 150. The finding by the learned trial Judge that “No single parent can adequately take care of children” is only what ordinarily should be and does not make it absolute. That has not affected the decision of the lower court in granting custody of the children to the respondent. Ideally, the children need both their parents, but where this natural arrangement is disrupted and can no longer hold due to the uncompromising attitude of either of the parties to the marriage, then custody must be borne by either of the spouses taking into account the provisions of section 71(1) of the Act and other factors and circumstances. I therefore have no reason to disturb the findings of the lower court in this regard. On the alternative submission for joint custody, the learned trial Judge granted the appellant access to the children. I also find this arrangement ideal. It is not in the interest of the children to be shifting base from one place to the other. The appellant can have access to his children whenever he desires to see them. In view of the finding above, it will be against the interest of the children to grant joint custody. Issue 3 is consequently resolved against the appellant.

This takes me to issue 4 which is whether the learned trial Judge erred in law by awarding the respondent a cumulative sum of N75,000.00K monthly as maintenance and up-keep for herself and the children which sums were not proved as required by law. Learned counsel for the appellant referred to section 70 of the Matrimonial Causes Act 1970 and submitted that the means and earning capacity of the appellant ought to be taken into consideration before awarding the cumulative sum of N75,000.00K monthly as maintenance for the respondent and the children. He referred us to the case of Akinbuwa v. Akinbuwa (supra) at page 676 where the court held:-

“The relevant consideration in an award of maintenance of a wife is the background of the standard of life which the husband previously maintained before he and the wife parted.”

It is submitted that the appellant in his testimony gave detailed evidence of his earning capacity and his standard of life before the respondent left the matrimonial home. He submitted that the appellant answered that he cannot afford N14,000.00K a month for feeding. That his average expenditure before the respondent left the matrimonial home was N8,000.00 per month. He stated that the appellant denied earning N200,000.00K a month and tendered exhibit ‘H’ his pay advice. That there was no contrary evidence regarding the earning capacity of the appellant and that the appellant should not go borrowing or perpetually live in penury in order to comply with the demand of the respondent. It is also submitted that the award of cumulative sum of N75,000.00K monthly as maintenance and up-keep for herself and the children was made without the respondent discharging the onus of proof as required by law the various heads of claim for maintenance being claims in the nature of special damages which requires strict proof citing A.C.B. Plc v. Ndoma Egba (2000) 10 NWLR (Pt. 675) 229 at 242, where it was held that a claim for special damages must be proved strictly. That the claimant must establish his entitlement for an award of special damages by credible evidence. Learned counsel referred to the respondent’s further amended answer and cross-petition, paragraph 22(b) and submitted that there was no evidence whatsoever in support of the financial reliefs claimed by the respondent in her pleadings. That having not led evidence in support of her financial reliefs, they are deemed abandoned. That pleadings cannot take the place of evidence referring to the case of Ajero v. Ugorji (1999) 10 NWLR (Pt.621) 1 at 19 – 20. Based on the above premise, the court was urged to resolve this issue in favour of the appellant.

For the respondent it is submitted that under section 70(1) of the Act, the court has a lot of discretion to exercise in making an order for the maintenance and conduct of the parties citing Erhahon v. Erhahon (1997) 6 NWLR (Pt.510) 667. It is submitted that the complaint of the appellant is not that he cannot afford the sum awarded but that the award is too high and it was not proved as a special damage. It is contended that the law does not require a wife to prove an amount claimed for her maintenance as special damages before it can be awarded by a court. He contended that, that will in effect be taking away from the court its discretion that is built in section 70(1) of the Act, citing Damulak v. Damulak (supra) and Akinbuwa v. Akinbuwa (supra). Learned counsel argued that if the appellant spends about N60,000.00k for himself alone per month, that N75,000.00k is not too much for him to spend on the respondent and the two issues of the marriage and the court was urged not to disturb the award made by the trial court.

I agree with the submission of both counsel that in making an order for maintenance, the court must always have regard to the means, earning capacity and in fact the conduct of the parties to the marriage and other relevant circumstances. Section 70(1) of the Matrimonial Causes Act provides:-

“Subject to this section, the court may in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regards to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.”

By virtue of the above provisions, the court seized of a petition has the discretionary power to make an order that it deems proper for the maintenance of a party to the marriage, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances. The relevant circumstances must be gathered by the court itself from the pleadings and evidence of the parties at the trial The appellant pleaded and testified as to his earning capacity. He earns N115,941.35K per month and tendered his pay advice as exhibit ‘H’ in support. Even though the appellant is engaged in private medical practice in the evenings of the day, how much he realises from that is not in evidence before the court and it is not for the court to speculate. I will not on this issue delve into the argument that if the appellant spends N60,000.00K on himself a month then N75,000.00K is not too much for him to spend on the respondent and the issues of the marriage. That has not been the criteria for determination in the award of maintenance by the courts. The law has clearly provided for the criteria to be followed. A man has a common law duty to maintain his wife and his children and such a wife and child or children then have a right to be so maintained. The right of a wife and child to maintenance is not contractual in nature. The husband is obliged to maintain his wife and child, and may by law be compelled to find them necessaries, as meat, drink, clothes, et cetera, suitable to the husband’s degree, estate or circumstance. In assessing maintenance, section 70(1) gives the court the discretionary power to order and asses maintenance of a party. It is not likened to a claim for special damages where the claimant must strictly prove his entitlement to such award before same can be awarded by the court as submitted by the appellant’s counsel. Now bearing this principle in mind, is the award of N75,000.00k monthly maintenance allowance for respondent and two children excessive in view of the monthly income of the appellant? The learned trial Judge ordered the petitioner to pay cumulative sum of N75,000.00K for the maintenance of the respondent and the two children. In addition, the petitioner is also to pay the school fees, books and other expenses for the children as shown on the bills sent by the school from time to time. In the circumstances of the appellant’s monthly income of only N115,947.35K and this additional responsibility, the monthly sum of N50,000.00k for maintenance of the two children as awarded by the lower court is excessive and is hereby reviewed to N30,000.00k while that of the respondent is reviewed from N25,000.00k per month to N20,000.00k thus, bringing the monthly maintenance for the respondent and the two children to N50,000.00Konly. In arriving at this figure, I have in mind the back ground of the standard of life which the appellant previously maintained before he and the respondent parted and the current economic trend. The court would have regard to what is fair and equitable based on the evidence adduced by the parties at the trial. This is also without prejudice to the other orders of the court. I hereby set aside the award of the cumulative sum of N75,000.00k for the maintenance of the respondent and the two children of the marriage and substitute same with N50,000.00k per month. Issue 4 subject to monthly maintenance of N75,000.00k per month been reduced to N50,000.00K monthly is resolved in favour of the appellant.

I now come to the last issue that is issue 5, whether the learned trial Judge was right in holding that the respondent cross-petitioner has sufficiently proved matrimonial cruelty on the part of the petitioner. In his brief of argument, learned counsel for the appellant reviewed the pleadings of the parties before the trial court and the evidence adduced in support of the petition and the cross-petition thereof. Learned counsel particularly referred to paragraph 11 (i)(ii)(iii) & (iv) of the amended petition which he submitted the petitioner led copious evidence in support which evidence was neither shaken nor contradicted by the respondent. He also submitted that the appellant in his evidence in chief and cross-examination denied the respondent’s averment that the appellant used to beat her. He submitted that in spite of the evidence of the appellant the trial court held that the respondent sufficiently proved matrimonial cruelty on the part of the appellant. That the learned trial Judge did not state which acts or conduct of the appellant amounted to matrimonial cruelty and that no reason was given whatsoever for coming to that conclusion. He submitted that the learned trial Judge merely pronounced the case of the appellant before that of the respondent without evaluating the evidence of the parties and/or assessing their probative value. Learned counsel referred to the case of Ciroma v. Ali (1999) 2 NWLR (Pt.590) 317 on what a good judgment should be and submitted that the finding of the trial court on this point is perverse and urged the court to reverse the same and resolve this issue in favour of the appellant.

In the respondent’s brief, learned counsel referred to definition of matrimonial cruelty as defined in decided cases citing Damulak v. Damulak (Supra); Adaramaja v. Adaramaja (1962) 1 SCNLR 376 and Williams v. Williams (1966) I SCNLR 60 (1966) I All NLR 36 at 41 – 42 and submitted that based on the cases cited, the learned trial Judge came to the conclusion that the respondent had sufficiently proved matrimonial cruelty on the part of the appellant. It is submitted that the respondent’s answers to some questions form part of the back ground facts from which the learned trial Judge drew her conclusion that the appellant was guilty of matrimonial cruelty. Learned counsel itemised the following as matrimonial cruelty from the evidence of the respondent more particularly at page 55 line 3-5 page 57 lines 22-27:-

“(1) A situation in which a woman is harassed an beaten by the husband at the slightest provocation or where not beaten there is a serious threat of violence.

(2) A situation in which a husband was so worked up in anger and decided to apply fist blow on his wife the blow missed her and landed on the doors of the matrimonial home. The blow broke through the door and left his hand dangling from the other side of the door.

(3) A situation where a husband gives his wife 21 days ultimatum to leave the matrimonial home and because the wife was hesitant he reduced the ultimatum to 7 days and almost immediately threw her out together with her belongings.”

He submitted that the learned trial Judge had the singular advantage of hearing and seeing the parties testify before her. He urged the court not to disturb the findings and conclusions of the trial court. The court was urged to resolve this issue against the appellant.

Blacks law dictionary sixth edition defines “cruelty” at page 377 as follows:-

“The intentional and malicious infliction of physical and mental suffering upon living creatures particularly human beings; or, as applied to the latter, the wanton, malicious and unnecessary infliction of pain upon the body, or the feelings and emotions, abusive treatment; inhumility; outrage. Chiefly used in the law of divorce, in such phrases as “cruel and abusive treatment”, “cruel and barbarous treatment”, or “cruel and inhuman treatment…”

In Akinbuwa v. Akinbuwa (supra) it was held that beating of a wife and causing her injury amounts to a cruelty or behaviour which she cannot reasonably be expected to bear. Cruelty is not ground set out in grounds of divorce. The facts can be used to show the conduct of the respondent in such a way that the petitioner cannot reasonably be expected to live with the respondent. Thus, a marriage can properly be held to have broken down irretrievably on the ground that one spouse has been proved to be guilty of cruelty to the other. In the instant case, from the evidence borne out from the records, according to the respondent, it is the cruel acts meted to her by the appellant that were intolerable.

Cruelty is therefore regarded as a conduct which is grave and weighty as to make cohabitation virtually impossible coupled with the injury or a reasonable apprehension of injury physical or mental, to health. The accumulation of minor acts of ill-treatment causing or likely to cause the suffering spouse to break down under strain constitutes the offence of cruelty. See Adaramaja v. Adaramaja (supra) and Williams v. Williams (1987) 2 NWLR (Pt. 54) 66. In considering what constitute matrimonial cruelty, the Supreme Court per Idigbe, JSC, in Williams v. Williams (1966) 1 All NLR, 36 held at pages 41 – 42; (1966) 1 SCNLR 60 at 67 paras B-C as follows:-

“The court should consider the entire evidence before it, and although no specific instance of actual violence is given in evidence it should be able, on an objective appraisal of the evidence before it, to say whether or not the conduct of the respondent is of such a character as is likely to cause, or produce reasonable apprehension of danger to life, limb or health (bodily or mental) on the part of the petitioner.” In the instant case, there is evidence before the trial court that the appellant used to harass and beat the respondent on the slightest provocation. There is evidence that there was a time the appellant was so worked up in anger and he wanted to apply fist blow on the respondent, he missed and his hand landed on the door and broke through the door and left his hand dangling from the other side of the door. There was also evidence before the court that he gave the respondent 21 days ultimatum to pack out of the matrimonial home and after begging to allow her stay in the matrimonial home as she has no where to go, the appellant reduced the ultimatum to 7 days. These and others are all borne out by evidence from the records of the court. These pieces of evidence by the respondent were not denied or contradicted by the appellant. Evidence that is not successfully challenged or discredited and that is relevant to the issues in controversy ought to be admitted and relied upon by a trial court for it is for all intents and purposes credible and reliable. See UBN v. Fajebe Foods Ltd. (1998) 6 NWLR (Pt. 554) 380; Morah v. Okwuayanga (1990) 1 NWLR (Pt. 125) 225: UBA v. Achoru (1990) 6 NWLR (Pt. 156) 254. These are clearly acts that constitute matrimonial cruelty. Though not specifically identified or classified as constituting acts of cruelty by learned trial Judge, they are clearly borne out by the evidence before the lower court.

On the other hand the appellant alleged acts as testified by him which he finds intolerable to stay with the respondent or the conduct of the respondent that the appellant cannot reasonably be expected to live was as averred in paragraph 11(i),(ii),(iii),(iv) of the amended petition. This paragraph has already been reproduced in this judgment. For the avoidance of doubt, I will repeat them. It provide:-

“11 (i) That right from the inception of the marriage, the respondent has conducted herself in a manner worthy of a marriage(sic) woman when sometimes in 1994 she abandoned the matrimonial home only to come back afterwards.

(ii) That during the cohabitation period, the petitioner got information that the respondent was committing adultery through Mrs. Imasuen.

(iii) That after the respondent deserted/abandoned the matrimonial home in 1996, despite repeated intervention by the petitioner and other well meaning people to make her return to the matrimonial home, she refused threatening that she was finished with the marriage.

(iv) That there was no consummation of the marriage for a greater period of cohabitation between the petitioner and the respondent as love, affection and conjugal kindness was virtually non existence between the parties for a greater part of the cohabited period.”

These averments are the grounds upon which the petition was founded; that since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent and (2) that the respondent has deserted the petitioner for continuous period of at least 2 years immediately preceeding the presentation of this petition and respondent does not object to a decree being granted. As stated earlier in this judgment, these are grounds founded under section 15(2)(c) of the Act which have not been sufficiently established by the appellant to entitle him to the judgment of the lower court and also as found by this court. The facts as averred in 11(i), (ii), (iii), (iv) have been countered by the respondent and succinctly explained by the respondent. The appellant in his evidence in chief on the conduct of the respondent as unworthy of a married woman, did not seek to rely on the ground of adultery for the proof of irretrievable break down of marriage. Information that the respondent was committing adultery through one Mrs. Imasuen is not by itself proof that the respondent committed adultery to warrant the dissolution of the marriage. On the ground that the respondent has abandoned the matrimonial home only, to come back after 6 months has been explained by the respondent both in her pleadings and evidence adduced before the lower court. The ground of desertion has not also been sufficiently established by the appellant as it is in evidence before the trial court both parties agreed to separate i.e. the separation was consensual. This fact has been confirmed by the appellant in his evidence in chief. The appellant sent the respondent out of the matrimonial home. The appellant cannot therefore rely on desertion as a ground. Assuming it was the respondent that abandoned the matrimonial home, the circumstance of her leaving the matrimonial home as found in her evidence before the lower court cannot be construed to mean desertion within the meaning of the Matrimonial Causes Act. The respondent leaving or abandoning the matrimonial home was necessitated by the conduct of the appellant caused by his beating and constant harassment of the respondent to leave the matrimonial home and at times she had to return to the matrimonial home on her own as the appellant never looked for her. The respondent’s leaving the matrimonial home under such circumstances can only be best described as constructive desertion. It is constructive desertion in the sense that it was the conduct of the appellant that compelled the respondent to abandon the matrimonial home. Section 18 of the Matrimonial Cause Act defines constructive desertion as:-

“A married person whose conduct constitutes just cause or excuse for the other party to the marriage to live separately or apart, and occasions that other party to the marriage to live separately or apart, shall be deemed to have wilfully deserted that other party without just cause or excuse, notwithstanding that that person may not in fact have intended the conduct to occasion that other party to live separately or apart.”

A proper construction of this provision with the evidence abound from the records, clearly established that it was the appellant that was in desertion. On the conduct the appellant finds intolerable to live with the respondent, the appellant has not succeeded in proving any of the requirements that is required to be established under section 16(1)(a) – (g) of the Matrimonial Causes Act to ground a divorce under section 15(2)(c). From the totality of the evidence adduced before the trial court, it is my considered view that the learned trial Judge was right in holding that the appellant has not proved his petition as required by law. I have no reason based on the evidence abound from the records to hold otherwise. It is also my considered view that the learned trial Judge properly evaluated the evidence adduced by the parties before it before arriving at its conclusion that the appellant has not proved his case under section 15(2)(c) Matrimonial Causes Act that the marriage has broken down irretrievably.

Judgment writing is a matter of style, there is no one common format or standard of how a judgment should be written. In the instant case, the appellant argued that the learned trial Judge in his judgment restated the evidence adduced by the parties and the address of their counsel and without reviewing the evidence went on to hold that the appellant has not proved his petition according to the provisions of section 15 of the Matrimonial Causes Act that the marriage has broken down irretrievably. It is contended that the learned Judge did not review the evidence, the evidence were not placed on any imaginary scale and that the court did not make any finding in respect thereof before reaching the conclusion that the appellant’s petition was not proved. It is also argued that the learned trial Judge did not take into consideration the pleadings and evidence adduced by the appellant before coming to the said conclusion. That such conclusion is perverse. The following cases were cited in support of the above proposition; Shamaki v. Baba (2000) 13 NWLR (Pt. 685) 566 at 569; Mogaji v. Odofin (1978) 4 Sc. 91; Whyte v. Jack (1996) 2 NWLR (Pt. 431) 407 at 574 and Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527. In a civil case, where the parties call evidence, before the trial Judge accepts or rejects evidence of either of the parties, he is enjoined to set up an imaginary scale by putting the evidence of the plaintiff who invariably has the burden to succeed in a civil case by preponderance of evidence on one side of the imaginary scale and then proceed to put the evidence adduced by the defendant on the other side of the imaginary scale and weigh the two together to see where the imaginary scale tilts. Ordinarily, the court performs its task of evaluation of evidence by placing the evidence called by either side to the conflict on every material issue on either side of the imaginary scale and weighing them together and whichever out weights the other in terms of probative value ought to be accepted. See Whyte v. Jack (supra). In the instant case, the learned trial Judge considered the pleadings of the parties as contained in the amended petition and the amended answer and the cross-petition, restated the evidence adduced by the parties and the addresses of their respective counsel and went on to consider whether the appellant has led evidence on all material issues that needs to be proved. It then went on to find that the appellant has not led evidence to sufficiently prove his case or that he has not made out a prima facie case. It then went on to consider the respondent’s cross-petition, whether the respondent made out a prima facie case. Then after evaluating the evidence together the learned trial Judge went on to make its finding, having regard to the party on whom the onus of proof lies before coming to the conclusion that the appellant has not proved his case in accordance with the provision of section 15(2)(c)(e) of the Matrimonial Causes Act. It is my considered view in the circumstances of this case that the learned trial Judge adequately considered the case of the parties before it and properly evaluated the evidence before reaching its decision. The judgment is not perverse and I so hold. The judgment demonstrated in full, a dispassionate consideration of all the issues properly raised and heard and it is a result of such an exercise. This is demonstrated by the learned trial Judge at page 117 of the judgment when she said;

“I have carefully listened during the hearing of the evidence of the petitioner and the respondent, I have also read carefully the petition, answer and cross petition. I have studied the exhibits in this case and also the address of counsel and the cases they cited. I have a duty to put all the evidence adduced on the imaginary scale of justice, and carefully evaluate the evidence to decide on whose side the scale of justice tilts.”

This issue is also resolved against the appellant.

In the final analysis, subject to what I have said as to the maintenance of the respondent and the two children, it is my view that this appeal is unmeritorious. It must be dismissed in substance and I do dismiss it. The respondent is entitled to costs which I assess at N5.000.00k only.

---

Other Citations: (2005)LCN/1758(CA)

Christian Outreach Ministries Inc. & Ors V. Mrs. Ekanem Oku Cobham & Anor (2005)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the decision of the High Court of Cross River State, Calabar Division, Calabar, presided over by Francis Ilok, J., delivered in Suit No. HC/492/2001 on the 12/1/04.

The facts of the case are that on the 20/11/01, the appellants as plaintiffs instituted proceedings against the respondents as defendants seeking the following reliefs:

“A. A Declaration that for all intents and purposes, the plaintiffs are the tenants of the 1st Defendant at her property situate at Plot 37 Nsefik Eyo Layout, Ndidem Usang Iso Road, Calabar.

B. A Declaration that the 1st and 2nd Defendants induced the Plaintiffs to take over and complete the three bedroom uncompleted bungalow situate and lying at plot 37 Nsefik Eyo Layout belonging to the 1st Defendant.

C. N5million (five million naira) special and general damages for the expenses carried out by the Plaintiffs on the uncompleted property situate at plot 37 Nsefik Eyo Layout.

D. N10,000.000 (ten million naira) special and general damages for the wrongful ejection of the Plaintiffs from the said property situate at plot 37 Nsefik Eyo Layout on 13th July, 2001.

E. N10,000,000 (ten million naira) special and general damages for the losses, destruction and damages caused to the Plaintiffs properties in the course of the wrongful ejection of the Plaintiffs from plot 37 Nsefik Eyo Layout on 13th July, 2001.

F. N10,000,000 (ten million naira) for the malicious destruction of the worship center at plot 37 Nsefik Eyo Layout constructed by the 1st Plaintiff with the suggestion, direction, consent and authorization of the Defendants jointly and severally.

G. N15,000,000 (fifteen million naira) special and general damages for the physical, mental, psychological and social torture and embarrassments suffered by the Plaintiffs and their family members between 13th July, 2001, and November, 2001, during the period of wrongful ejection of the Plaintiffs and their family members from the property situate at plot 37 Nsefik Layout.

H. A Declaration that the Plaintiffs are entitled to occupy plot 37 Nsefik Eyo Layout until the expenses incurred in completing the property is defrayed by annual rent of N70,000 (seventy thousand naira) as agreed by the parties with effect from January, 2001.

I. An injunction to restrain the Defendants, their agents, privies, workmen, etc., jointly and individually from disturbing the Plaintiffs at plot 37 Nsefik Eyo Layout until the defrayment of all the expenses incurred by the ‘Plaintiffs in completing the said property.

J. An Order for the Defendants, jointly and severally, to pay N50,000,000 (fifty million naira) to the Plaintiffs as expenses incurred for the completion of the property and compensation in form of damages for the destruction of the Plaintiffs properties from the property at plot 37 Nsefik Eyo Layout.

– ALTERNATIVELY –

1. An Order for the Defendants, jointly and severally, to pay N50,000,000 (fifty million naira) to the Plaintiffs as expenses incurred for the completion of the property and compensation in form of damages for the destruction of the Plaintiffs properties from the property at plot 37 Nsefik Eyo Layout.”

On receipt of the writ the respondents brought a motion on notice dated 6/1/02 and filed on 8/1/02. The motion, which is supported by a 12-paragraph affidavit, is praying for the following orders:

“(1) An Order dismissing this suit in its entirety.

(2) Any further Order(s) as the Court may deem fit to make.”

The motion is premised on the following:

(1) This suit constitutes an abuse of the Court process because:

(i) There is a pending suit in the Chief Magistrate’s Court, Calabar, between the 2nd plaintiff and the 1st defendant concerning the same subject matter as in this case.

(ii) The subject matter of this suit is the same as the subject matter in Suit No. MC/628/2001 between Mrs. Ekanem Cobham and Rev. Emogo Mkpa Victor Bassey.

(2) The 1st plaintiff is not a juristic person with the capacity to sue and be sued.

(3) The 1st and 3rd plaintiffs have no locus standi.

It is of interest that I mention that prior to the suit filed by the appellants before the High Court in Suit No. HC/492/2001, the respondents had sued the appellants claiming the possession of the said premises in suit MC/628/2001.

The respondents subsequently filed a notice of preliminary objection dated on 23/1/02 and filed the same day. The preliminary point raised is that Suit No. MC/628/2001 as constituted is incurably incompetent and for an order of the court to strike it out for lack of jurisdiction.

The appellants reacted to the motion and notice of preliminary objection by filing a counter-affidavit of 22 paragraphs dated 23/3/02 and filed the same day. After hearing arguments from counsel, the lower Court Judge ruled in favour of the respondents and struck out Suit No. HC/492/2001.

Dissatisfied with the Ruling of the lower Court, the appellants appealed to this court on 5 grounds. From the 5 grounds of appeal, the appellants distilled 3 issues for determination in their appellants brief dated 11/8/04 and filed the same day. The issues for determination are as follows:

“(1) Whether the learned trial Judge was right to have dismissed the case of the plaintiffs/appellants instead of striking out same when the plaintiffs/appellants were yet to file their statement of claim and consequently issues were yet to be joined.

(2) Whether the learned trial Judge was right in holding that a claim for mere possession as disclosed in Suit No. MC/628/2001 was the same as the claim for declaration, damages and injunction which were the reliefs sought for in Suit No. HC/492/2001.

(3) Whether it did not amount to inadequate valuation of the arguments proffered by the plaintiffs/appellants, when the learned trial Judge in the cause of his ruling failed, neglected and/or refused to consider the case of Registered Trustees of Living Christ Mission vs. Dr. Osita Aduba & Mrs. Aduba (2000) 75 LRCN p. 257 at 260 cited by counsel to the appellants which authority was relevant to the appellants’ case.”

The respondents formulated 4 issues for the determination in their brief dated 27/8/04 and filed on 18/10/04. The issues are as follows:

“(1) What is the proper order the learned trial Judge should have made after he considered that the case of the appellants before the lower Court constitute an abuse of the court process?

(2) Whether the learned trial Judge was right to strike out the names of the 1st and 3rd appellants in view of the fact that 1st appellant was adjudged a non-juristic person and the 3rd appellant was found not to have the prerequisite standing to sue?

(3) Whether the learned trial Judge was right in holding that the relief sought by the 1st respondent in the Chief Magistrate’s Court were similar to those sought by the appellants in the High Court?

(4) Whether the failure of the learned trial Judge to consider and apply the principle enunciated by the Supreme Court decision in the case of Registered Trustees, Living Christ Mission vs. Dr. Osita Aduba & Mrs. Aduba (2000) 3 NWLR (Pt. 647) 14 occasioned a miscarriage of justice on the appellants?”

I have carefully examined, considered and reflected on the issues formulated by the parties in their respective briefs of arguments. The two sets of briefs are substantially similar and are quite compatible. However, in my considered view the issues formulated by the respondents correlate more with the grounds of appeal filed by the appellants and they appear succinct, comprehensive, more derivable and fairly arising from the grounds of appeal. For instance, the respondents’ Issue No. 1 is the same with the appellant’ Issue No. 1 and ground one. The respondents’ Issue No.2 relates to ground two. The appellants themselves did not raise any issue in their brief directly relating to ground 2, though they made some submissions relating to the issue in their brief. The respondents’ Issue No.3 is the same with the appellants’ Issue No.2 and it relates to ground 3. The respondents’ Issue no. 4 is the same with Issue No.3 of the appellants and it relates to ground 4. In the circumstances, I prefer the issue formulated by the respondents and I shall rely on them in the determination of this appeal.

On Issue No.1, ,the appellants’ counsel, Mr Otudor, submitted that as the appellants had not filed a statement of claim the court was handicapped in arriving at the conclusion as to what the appellants’ case would be so as to afford the latitude to dismiss the appellants’ case. He submitted that the lower Court by dismissing the appellants’ suit presupposes that the parties have been heard on the merit. He relied on Akuneziri vs. Okenwa & Ors. 4 NSCQR Vol. 12 page 280 and pointed out that the implication of dismissing the appellants’ case without any trial is far reaching, very decisive and terminal with the attendant structures of being shut out perpetually from the temple of justice. He also pointed out that even if Suit No. MC/628/2001 for possession in the Chief Magistrate Court is decided in the appellants favour, they would have remained barred from seeking redress for the damages to their properties against the respondents. He submitted that following the case of Yakubu vs. Governor of Kogi State (1997) 7 NWLR (Pt. 511) 66 at 71, the court should have struck out the case and not dismiss it. In his view, the lower Court did not exercise its discretion judicially and judiciously.

On Issue No.2, Mr. Otudor, submitted that Suit No. HC/492/2001 was not an abuse of the court process, because it raised 9 claims revolving round several issues while Suit No. MC/628/2001 raised only one claim. He pointed out that apart from the appellants’ claims (a) and (h), which are of such character as the one in Suit No. MC/628/2001 pending in the Magistrate Court, claims (b),(c),(d),(e),(f) & (g) are distinct and they fall within the jurisdiction of the High Court and they could have been resolved without any interference with and prejudice to the suit before the Magistrate Court. He referred to Egbuonu vs. Bornu R. T. C. (1997) 84 LRCN 2736 at 2740.

On Issue No.3, Mr. Otudor submitted that failure of the lower Court to follow the decision in Registered Trustees of Living Christ Mission vs. Dr. Osita Aduba & Mrs. Aduba (supra) is a substantial error which led to a miscarriage of justice.

Counsel for the respondents, Mrs. Obono-Obla submitted on Issues 1 and 2 that it is an abuse of the court process to institute multiplicity of actions in the same issue. In support of her submission, she cited the cases of Okafor vs. A-G, Anambra State (1991) 6 NWLR (Pt. 2000) 649 and Brawal Shipping (Nig.) Ltd. vs. Aphrodite (Nig.,) Ltd. (2004) 9 NWLR (Pt. 879) 462 – 465. It is the contention of the respondents that the institution of the suit in the High Court by the appellants was primarily motivated by the desperation to preempt the decision of the Chief Magistrate’s Court in the action instituted by the 1st respondent to recover possession of her property from the 2nd appellant and the essence was to truncate or stall the proper determination of the claim of the 1st respondent in the Chief Magistrate Court. She concluded that the intention of the appellant was an improper use of the judicial process to irritate or harass or annoy the respondent. Mrs. Obono-Obla submitted that where a party has been adjudged guilty of abuse of court process, his suit must be dismissed. He relied on Erabor vs. Major & Co. (Nig.) Ltd. (2001) 5 NWLR (Pt. 706) 300 at 301.

She pointed out that the respondents objected tot he appellants’ case on the grounds of abuse of the court process; lack of capacity of the 1st appellant and lack of locus standi of the 1st and 3rd appellants. The learned trial Judge having upheld the objections he was right to dismiss the suit.

On Issue 3, the respondents contended that the subject matter of the claims of the appellants in Suit No. HC/492/2001 is the same as those raised by the respondents at the Chief Magistrate Court in Suit No. MC/628/2001, therefore, the suit is vexations. He referred to Nnama vs. Nwanebe (1991) 2 NWLR (Pt.172) 181. The respondents argued that if the appellants’ claims are determined in the High Court the proceedings instituted by the 1st respondent in the Chief Magistrate Court for recovery of possession of Plot 37 Nsefik Eyo Layout, would be rendered otiose. Counsel submitted also that though the appellants argued that the lower Court ought to have struck out only claims (A) & (H) and assumed jurisdiction to determine claims (B), (C),(D),(E),(F) and (G), there is no way the court below could have entertained the rest of the claims because they are ancillary claims predicated on a determination of claims (A) and (H) thereof. She submitted further that a court cannot adjudicate over ancillary or incidental claim if it has no jurisdiction to entertain the main claim. He relied on Tukur vs. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517 and Ayeni vs. A-G and Commissioner for Justice, Ekiti State (2002) FWLR (Pt. 110) page 1737.

On Issue No.4, Mrs. Obono-Obla submitted that the facts and circumstances of the case of Aduba (supra) are diametrically opposed to the facts of this case on appeal and moreover the case will not apply where the party acted mala fide in filing a subsequent suit as in the case of the appellants. It was contended that this court would only reverse the decision of the learned trial Judge, where it is established that his refusal to consider and apply the principle laid down in Aduba’s case by the Supreme Court occasioned substantial miscarriage of justice on the appellants. She relied on Kraus Thompson Organisation Ltd. vs. University of Calabar (2004) 9 NWLR (Pt. 879) page 631.

The appellants on the receipt of the respondents’ brief of argument promptly filed a reply brief dated 29/10/04 and filed the same day. In the appellants’ reply brief, Mr. Otudor reiterated the fact that cause of action in Suit No. HC/492/2001 is different from the cause of action in Suit No. MC/628/2001 which is pending before the Chief Magistrate’s Court, Calabar. He argued that Suit No. HC/492/2001 was principally for damages for forceful and wrongful ejection and for the destruction of the appellants’ properties in the course of the wrongful ejection, therefore, their suit before the High Court was not wanting in bonafide.

The appellants also contended that it was only the 1st and 3rd appellants that were struck out, but the 2nd appellant was never struck out. They also contended that the 3rd appellant had the requisite standing to be a party to Suit No. HC/492/2001 because she was forcefully and wrongfully ejected from her residence, her properties were also destroyed and she suffered mental and psychological trauma. Further, it was submitted that the 3rd appellant need not be a party to the contract between the 1st respondent and the 2nd appellant for her to have capacity to sue. Furthermore, the appellants argued that the fact that the 1st respondent as plaintiff is entitled to possession in the claim before the Chief Magistrate Court does not absolve him from being liable to the 2nd, and 3rd appellants in damages for forceful and wrongful ejection.

I have carefully perused the records and I have given due consideration to the submissions of counsel in their briefs of argument. On Issue 1, it is my view that the question whether the learned trial Judge was right to have dismissed the case of the appellants instead of striking out same when the appellants were yet to file their statement of claim is of no moment because it has no legal foundation. On the contrary, the court has inherent jurisdiction to terminate proceedings before it at any stage, where it is apparent that such proceedings are incompetent, manifestly vexatious or scandalous. See Erabor vs. Major & Co. (Nig.) Ltd. (2001) 5 NWLR (Pt. 706) 300. Once a court is satisfied that any proceedings before it is an abuse of process it has the power, indeed the duty to dismiss it and not merely to strike it out. The argument that the appellant should have filed a statement of claim before the court can dismiss the suit on the ground of abuse of the process of court is misconceived and irrelevant in the circumstance. Where the Court comes to the conclusion that its process is abused, the proper order is that of dismissal of the process. The power of the court to dismiss proceedings, which are an abuse of its process, derives from the inherent jurisdiction of the court. See Arubo vs. Aiyelere (1993) 24 NSCC (Pt. 1) 255; African Re Corp vs. JDP Construction Nig. Ltd. (2002) 10 NSCQR 58; In CBN vs. Ahmed & Ors. (2001) 6 NSCQR 859, Ejuwunmi, JSC, said at page 276 that:

“Now, inherent jurisdiction or power is a necessary adjunct of powers conferred by the Rules and is invoked by a court of law to ensure that the machinery of justice is duly applied and properly lubricated and not abused. One most important head of such inherent powers is abuse of process which simply means that the process of the courts must not be abused.”

A court of law, which is as well a court of justice, will always prevent the improper use of its machinery and will not allow it to be used as a means of vexations and oppressive behaviour in the process of litigation. In Unifarm Ind. Ltd. vs. Oceanic Bank Int’l (Nig.) Ltd. (2005) 3 NWLR (Pt. 911) 83 this Court held that:

“In a case of abuse of the process of the court, it may render the pending matter in court improperly there; should such matter be struck out or dismissed? Recent pronouncements of the Supreme Court appear to reason that such matters should be dismissed. See the opinion of Niki Tobi, JSC, in (i) African Reinsurance Corp. vs. J. D. P. Construction (Nig.) Ltd. (2003) 13 NWLR (Pt. 838) at 609 (ii) Arubo vs. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 (iii) Kode vs. Alhaji Yusuf (2001) 4 NWLR (Pt. 703) 392. It is safer in the event to prefer and adopt the view of dismissal of the case, where the process of the court is found to have been abused by the institution of two live issues simultaneously pending in court.”

However, before a party is admonished, it must be established that the erring party had abused the process of court by improper use of the process of the court. Regard being had to the facts of this case on appeal it is very fundamental to determine whether or not, the appellants by filing Suit No. HC/429/2001 before the High Court abused the process of the court.

In CBN vs. Ahmed & Ors. (supra) Ogundare, JSC, at page 899 – 899 said:

“What is meant by abuse of process of Court? It simply means that the process of the court has not been used bona fide and properly… Abuse of process of the Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexations or oppressive.

Abuse of process can also mean abuse of legal procedure or improper use of legal process.”

An abuse of process always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system. There is said to be an abuse of the process of the court when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues.

In the instant case on appeal, the trial Judge in the court below concluded at page 62 lines 33-38 of the record thus:

“…From the above, it is my considered opinion that the present Suit No. HC/492/2001, which was instituted later in time to Suit No. MC/628/2001 now pending at the Chief Magistrate’s Court, Calabar, and which also deals with the property at Plot 37 Nsefik Eyo Layout, Calabar, is an abuse of court process. This is so because 1st defendant who is the plaintiff at the Magistrate Court raised the issue of the present plaintiffs being tenants at will. This and whether the defendant is entitled to possession are issues that will be determined in the Magistrate’s Court matter and the present plaintiff ought to await the outcome of the Chief Magistrate’s Court matter before bringing the present action.”

The learned trial Judge failed to consider the reliefs of the appellants in claims (b), (c), (d), (e), (f), (g) – (j) and the alternative claim which are distinct and different from the claim for possession simplicter in the suit filed by the respondents before the Chief Magistrate Court, Calabar, in Suit No. MC/628/2001.

The claims for damages for wrongful and forceful ejection viet armis; damages to the properties of the appellants; are maintainable without any prejudice or interference with any other suit. It is not the law that once a party files another suit before another court on the subject matter, there is an abuse of court process. An act can give rise to different suits. A subject matter may very well give rise to different rights. See Unifarm Ind. Ltd. vs. Oceanic Bank Int’l (Nig.) Ltd. (supra) at page 100. In Fasakin Foods (Nig.) Co. Ltd. vs. Shosanya (2003) 17 NWLR (Pt. 849) 237, this Court held that:

“It is not an abuse of court process for a defendant who conceives that he has reliefs which are different from those claimed against him by the plaintiff to initiate separate proceedings in court seeking those reliefs even though his claims and those of the plaintiff arise from the same facts and the same subject matter. In the instant case, the respondents’ suit is not an abuse of the process of court because the reliefs sought therein are distinct from that sought in the appellants’ suit”.

What transpired in the above case is similar to the facts of the instant case on appeal. The appellants’ suit is best described as a cross-action in a different court. It is not a case of two actions which one party has sued the same defendant.

It should be noted that accessibility to a court of law to vent a real or imagined grievance is generally regarded as a hallmark of democracy. It is only if mala fide can be read into the motive of resorting to a court of justice that the process initiating the suit can be properly described as an abuse of court process. It is not the exercise of the right per se, rather, it is the improper and irregular exercise, which constitutes an abuse. Where there is a right to bring an action, the state of mind of the person exercising the right cannot affect the validity or propriety of its exercise. See CBN vs. Ahmed (supra); Unifarm Ind. Ltd. vs. Oceanic Bank Int’l (Nig.) Ltd. (supra) at page 100.

At this juncture, it becomes necessary to examine and reflect on Suit No. HC/492/2001 and Suit No. MC/628/2001. The claims of the appellants in Suit No. HC/MC/492/2001 have been reproduced earlier on in this judgment, I only need now to reproduce the claims of the respondents before the Chief Magistrate’s Court in Suit No. MC/628/2001 at page 31 of the record. It reads:

“MRS. EKANEM COBHAM PLAINTIFF

AND

REV. BASSEY DEFENDANT

PARTICULARS OF CLAIM

The plaintiff is entitled to the possession of premises apartment situate at Plot 37 Nsefik Eyo Layout, Calabar, which were let by the defendant under the TENANT AT WILL, which the said tenant expired by Notice to Quit given to the defendant by the plaintiff on 1st June, 2001, in which the defendant refused and neglect to deliver up possession of the said premises and still retain same (a duplicate copy of the said Notice hereto annexed).

WHEREAS the Plaintiff claim as follows:

(a) The possession of the said premises.”

A comparative examination of both claims HC/492/2001 and MC/628/2001 clearly reveal that the parties in the two suits are different and they are apparently not the same. That much was conceded by the trial Judge in his judgment see pages 62 – 63 of the record. Secondly, the issues in Suit No. HC/492/2001 are more than the lone issue in Suit No. MC/628/2001. Although, all the issues are from the same subject matter they are not dealing with the same rights. Different suits can emanate from the same subject matter but with different rights and reliefs.

In the case on appeal, I observed that the only way the appellants could redress their grievances was to sue before the High Court as they did, regard being had to the nature and quantum of their claim. The trial Judge in his ruling at page 63 lines 12 – 14 of the record stated that the appellants should have brought their claims as a defence in Suit No. MC/628/2001. There is no way for the appellants to bring their claims as a defence to an action. A mere defence however strong, cannot constitute the requisite reliefs that can assuage the damage suffered by the appellants following the destruction of their properties. The alternative would have been to file a counter-claim before the Chief Magistrate Court in the suit pending before it as suggested by the court below. Obviously, that alternative is not expedient because it would have raised jurisdictional problem given the nature and quantum of the claim in Suit No. HC/492/2001. Also, the Magistrate Court cannot give declaratory judgment. The maxim Ubi Jus Ibi Remedium is very sacrosanct and must be given full effect in all its ramification. Where there is a wrong, there is a remedy, Having dismissed the claims of the appellants their right to redress and to fair hearing has been prematurely foreclosed.

The allegation of the appellants on the writ under paragraphs (b), (c), (e), (f) and (g) are claims for special and general damages from the respondents for expenses carried out by the appellants on the uncompleted property situate at Plot 37 Nsefik Eyo Layout, wrongful ejection of the appellants from the said property, malicious destruction of the worship center built on the property by the appellants and damages for losses, destruction and damages caused to the appellants’ properties, etc. It would appear that the appellants have bona fide in seeking to justify their claims by having their suit decided in the appropriate forum where the relevant facts will properly be stated and issues joined on the issues. It is also significant to note that the claim of the appellants in paragraph (b) set out elsewhere, indicate that the respondents induced the appellants to take over and complete the three bedroom uncompleted bungalow situate and lying at Plot 37 Nsefik Eyo Layout belonging to the 1st respondent. If this is so then the matter had gone beyond a mere landlord and tenant relationship therefore it would appear that the appellants cannot be justifiably denied the opportunity to have the case tried on pleadings. No doubt, this can only be done in the High Court. Having regard to the foregoing, I resolve Issue 1 in favour of the appellants.

On Issue 2, it is my considered opinion that it was wrong for the lower Court to have dealt with the issue of the juristic personality of the 1st appellant and the locus standi of the 3rd appellant at the initial stage of the proceedings. While in the appropriate cases the court may detect the juristic personality of a party from the writ, in this case it was necessary to have allowed the appellants to file their statement of claim so that they will give full facts relating to the juristic personality of the 1st appellant.

In respect of the 3rd appellant, her name was struck out on the ground that she has no locus standi. Now, what is the meaning of “Locus Standi”. Locus Standi or standing to sue 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. In short, locus standi is the right of appearance in a court of justice in a given question. See Guda vs. Kitta (1999) 12 NWLR (Pt. 629) 21; Elendu vs. Ekwoaba (1995) 3 NWLR (Pt. 386) 704 and Ogbuechi vs. Governor of Imo State (1995) 9 NWLR (Pt. 417) 53.

For a person to have locus standi in an action, he must be able to show that his civil rights and obligations have been or are in danger of being infringed.

It is well settled law that the locus standi of a plaintiff is determinable from the totality of all averments in his or her statement of claim since it is the statement of claim that has to be carefully scrutinized with a view to ascertaining whether or not it has disclosed sufficient legal interest and how such interest has arisen in the subject matter of the action. See Owoduni vs. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (Pt. 675) 315 and Aromolo vs. Akapo (2003) 8 NWLR (Pt.823) 451.

In the instant case on appeal, the appellants have only filed their writ of summons. Obviously, a writ of summons gives just a prelude that sets an action in motion. It is in the statement of claim that a plaintiff ventilates the facts and circumstances and capacity in which he initiates the claim. Consequently, it does not stand to reason to explore the locus standi of a plaintiff from the writ of summons. In P.V.C. Ltd. vs. Lawal (2005) 3 NWLR (Pt. 911) 121, this Court held at page 142 that:

“In determining locus standi of a party, the entire statement of claim should be looked into and not merely a part of it. Also only the statement of claim of a party should be considered.”

See also Global Trans Oceanic S. A. vs. Free Ent. (Nig.) Ltd. (2001) 5 NWLR (Pt. 706) 426. In the circumstance, it will appear that the lower Court acted hastily in dealing with the issue of the locus standi of the 3rd appellant without the benefit of the statement of claim.

I observed that the court below relied on the averments in the supporting affidavit of the respondents and the counter-affidavit filed by the appellants in arriving at its conclusion that the 3rd appellant has no locus standi.

On the contrary, the averments of the appellants in their counter-affidavit at page 35 of the record show that the 3rd appellant has locus standi. For instance, paragraphs 8, 9, 10 and 17 of the counter-affidavit reads as follows:

“8. That all the plaintiffs/respondents have contract with the defendants directly and indirectly.

9. That all the plaintiffs/respondents are tenants to the defendants/applicants and/or are interested parties in the subject matter of this suit.
10. It is proper for each and/or all the plaintiffs/respondents to sue the defendants/applicants because the subject matter and issues in this case involve all the parties concerned in this suit.
11. The plaintiffs and in particular the 2nd plaintiff/respondents are the tenants of the applicants in this motion.”

From the above averments, it is very clear and undeniable that the 2nd and 3rd appellants are tenants of the respondents. Relating the averments in paragraphs 8, 9, 10 and 17 of the appellants’ counter-affidavit aforesaid to reliefs (d), (e), (f) and (g) in the writ of summons in Suit No.HC/492/2001, it is clear to me that the 2nd and 3rd appellants have locus standi to sue. The 3rd appellant was a tenant in the property at No. 37 Nsefik Eyo Layout, Calabar, when she and the others were forcefully and wrongfully ejected from the property, which was her residence. She alleged that her properties were allegedly destroyed and she suffered mental and psychological trauma.

Locus standi raises the question whether the person whose standing is in issue is the proper person to seek an adjudication of the issue. It is not whether the issue itself is justiciable or whether the plaintiff has sufficient legal interest that is whether there is a breach of the civil rights and obligations of the plaintiff. The twin factors to be considered in determining locus standi are that:

(1) the plaintiff must be able to show that his civil rights and obligation have been or is in danger of being violated or infringed.

(2) the plaintiff must have a justiciable dispute with the defendant.

These two factors must co-exist to establish the locus standi of the plaintiff. See Adesanya vs. President of Federal Republic of Nigeria & 1 Or. (1981) All NLR 1; Ogbuchi vs. Governor of Imo State (1995) 9 NWLR (Pt. 417) 53; A-G, Fed. vs. A-G, States (2001) 7 NSCQR 458; Okafor vs. Onedibe (supra) and Oloriode vs. Oyebi (1984) 5 SC 1.

In the instant case on appeal, the 3rd appellant, Mrs. Bassey has shown that her civil rights and obligation have been infringed. The wrongful act allegedly committed was the forceful and wrongful ejection and the damages and or destruction of her properties resulting therefrom. She alleged also that she suffered mental and psychological trauma. It has not been denied that she resides in the property and that she suffered the consequences of the forceful and wrongful ejection. Therefore, she need not be a party to the contract between the 1st respondent and the 2nd appellant for her to have the capacity to sue and there is nothing in law stopping her from maintaining an action against the respondents. From the facts and circumstances in the case on appeal and particularly the finding of the lower court at page 62 lines 23 – 28 where it said:

“Again, it is also clear that the present case 2nd plaintiff (now 2nd appellant) is claiming the sum of N10 million Special and General damages for ejection in this suit which was filed on 12-11-2001 despite being restored to possession of the subject matter of both suits which is Plot 37 Nsefik Eyo Layout, Ndidem Usang Iso Road, Calabar, on 9-11-2001 by order of the Chief Magistrate’s Court…”

Even if the 1st respondent was entitled to possession as claimed, the law frowns on the use of force or arms. See Ojukwu vs. Military Governor of Lagos State (1985) NWLR (Pt. 10) p.806, wherein the Supreme Court held that:

“If anyone is wrongfully dispossessed the law must be vindicated by turning out the wrong doer and restoring the dispossessed to possession by an interim order before the formal rights of the parties are determined.”

I believe this was why the appellants were restored to possession. However, the 3rd appellant who was forcefully and wrongfully ejected from her residence, her properties destroyed with the attendant mental and psychological trauma suffered, is perfectly entitled to sue. The question of privity of contract between the 3rd appellant and the 1st respondent does not arise in the circumstance. The fact that she is the wife of the 2nd appellant cannot be employed to deny her access to court guaranteed under Section 36(1) of the 1999 Constitution. Perhaps, if the lower court had been patient to follow the proper procedure it would have allowed the appellants to file their statement of claim. This way, the court below would have had a clear or clearer picture. I conclude therefore, that the 3rd appellant from the foregoing reasons had locus standi to sue and to maintain the action before the court below.

It is also significant that the locus standi of the 2nd appellant was not challenged and his name was not struck out from the proceedings for want of juristic personality. Therefore, Suit No. HC/492/2001 is maintainable by the 2nd appellant alone. I, therefore, resolve Issue No.2 in favour of the appellants.

In respect of Issue No.3, that is whether the trial Judge was right in holding that the relief sought by the 1st respondent in the Chief Magistrate Court were similar to those sought by the appellants in the High Court, I have already dealt sufficiently with the issue while dealing with Issue 1 so, I need not repeat myself. It is sufficient to say that the claims in Suit No. MC/628/2001 and Suit No. HC/492/2001 are manifestly different. In the first suit, the respondent as landlord was asking for possession, while the appellants in the second suit were asking for declaratory reliefs, damages, and injunction. These are reliefs, which could not have been sought for in the case before the Chief Magistrate. There is no dispute that the appellants were wrongfully ejected from their house and their properties destroyed. There is also no dispute that they suffered physical mental and psychological social trauma caused by respondents who acted viet arms. All that the appellants have done in Suit HC/492/2001 is to ventilate their own grievances against the respondents in another court over several other issues arising from the same subject- matter. This is quite permissible in law as was the case in Unifarm Ind. Ltd. vs. Oceanic Bank Int’l (Nig.) Ltd. (supra). The resort to different remedies was an exercise of their constitutional right. See Benaplastic Industries Ltd. vs. Vasilyer (1999) 10 NWLR (Pt.624) 620; Harriman VS. Harriman (1989) 5 NWLR (Pt. 119) 6 and Fasakin Foods (Nig.) Co. Ltd. vs. Shosanya (supra). It is equally important to note that the claims in paragraphs (b), (c), (d), (e), (f) & (g) are not ancillary or incidental claims and they are not inextricably tied to or bound with the lone claim for possession in Suit No. MC/628/2001. From the foregoing, I resolve Issue No.3 in favour of the appellants.

I now come to Issue No.4. Having carefully gone through the case of Registered Trustees of Living Christ Mission vs. Dr. Osita Aduba & Mrs. Aduba (2000) 75 LRCN 257 at 260, though the facts are not exactly identical, they are substantially similar. In that case before the writ of summons was taken out by the respondents in the High Court, the appellants had instituted an action in Suit MO/660/92 against the respondents in the Magistrate Court for possession of the premises known as 42 Mba Road, Inland Town, Onitsha, and for mesne profit. The respondents upon being served with the writ of summons of the appellants in suit No. 0/390/92 moved the High court to strike out the action. The ground for their prayer was that it was an abuse of the court process for the appellants to have instituted an action against the respondents when they were aware that they had, already pending in the Magistrate Court, similar action concerning the same issues as the new suit against them. After argument of counsel on both sides on issues raised, the learned trial Judge refused the respondents’ prayer to strike out the case. On appeal to the Court of Appeal, the appeal was allowed and the order, of the learned trial Judge refusing to strike out the case of the appellants was set aside. The Court of Appeal further ordered a stay of proceedings of the Suit No. MC/660/92 in the magistrate Court. On appeal to the Supreme Court, the court at pages 21 – 22 laid down the principle to be followed in hearing cross-actions instituted in different courts thus:

“If there are two courts which are faced with substantially the same question it is desirable to be sure that that question is debated in only one of those courts if by that means justice can be done.

… If there were two proceedings going on in Court ‘A’ and Court ‘B’ the proceedings in Court ‘A’ relating to a number of questions, only one of which was raised in the proceedings in Court ‘B’ was the only question raised in that Court. That would be a very strong argument for saying that the convenient course would be to allow that question to be dealt with in the proceedings in Court ‘A’ which would dispose of the matter raised in the proceedings in Court ‘B’ whereas if the reverse course is taken the same would not apply…

Where more issues in a matter are raised in one Court than in another court, a more convenient court should be allowed to resolve those issues in the interest of justice. More so, if the power of one of the courts to entertain one or more issues is in doubt.”

It is crystal clear that the issues raised in Suit HC/492/2001 are more than the lone issue raised in Suit No. MC/628/2001 pending in the Chief Magistrate Court. Moreover, the claims in Suit No. HC/492/2001 contain declaratory reliefs, special and general damages which amounts are far in excess of the jurisdiction of the Chief Magistrate Court. Following the Aduba’s case Suit No. HC/492/2001 would be better dealt with in the High Court although it was filed later in time. I have already held that the suit filed by the appellants is devoid of any mala fide. In my considered view, the action of the appellants did not amount to making use of judicial process to the irritation and annoyance of the respondents such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue. See African Reinsurance Corporation vs. J. D. P. Construction Ltd. (supra). I am in agreement with counsel for the respondents that the applicability of an earlier decision as a precedent for a subsequent one is determined by the facts of the later case, which must be identical or similar to the facts of the earlier case. The facts of the two cases must be either the same or at least similar before the decision in one can be used as a guide to the decision in another case. See Global Trans Oceanic S. A. vs. Ent. (Nig.) Ltd. (2001) 8 NWLR (Pt. 706) 426 at 430 and Anaedobe vs. Ofodile (2001) 5 NWLR (Pt. 706) 364. What happened in the Aduba’s case is exactly what the appellants have done in this case on appeal. Save for the 5th relief in Aduba’s case, which is for an order of court transferring Suit No. MC/660/92 from the Magistrate Court, Onitsha, to the High Court for trial, the case is completely on all fours with this case on appeal therefore the principles enunciated in that case apply with equal force in this case of appeal.

The argument that because the appellants did not ask for the transfer of Suit No.MC/628/2001 from the Magistrate Court to the High Court therefore, the principles enunciated in Aduba’s case would not apply in this case on appeal appears grossly misconceived. It is an attempt to make a distinction without a difference. The principle in Aduba’s case is not based on whether or not there was an order for transfer. The case of Tukur vs. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517 cited by Mrs. Obono-Obla is inapplicable to the facts of this case on appeal. The issue here is not the want of jurisdiction to entertain the main claim of the appellants in Suit No. HC/492/2001. Similarly, the case of Ayeni vs. A-G and Commissioner of Justice, Ekiti State (supra) is irrelevant and inapplicable. That case dealt with the situation where the main claim in the suit was statute barred and the reliefs claimed in the statement of claim were ancillary to the main claim. That is not the case here. The claims of the appellants were not statute barred. Also, the case of Nnana vs. Nwanebe (supra) has no relevance to this case. In any case, the Supreme Court in the Aduba’s case has enjoined courts to be circumspect about the decision in Nnana vs. Nwanebe (supra). The case of NIMB Ltd. vs. UBN Ltd. (2004) 12 NWLR (Pt.888) 599 is quite distinguishable from the facts of the appeal on hand. That case dealt with applications filed in courts of coordinate jurisdiction. The second application filed in one court was in respect of a relief already granted by another court of co-ordinate jurisdiction. That is not the situation here. I am of the considered view that the court below should have followed and applied the decision in the Aduba’s case. Its refusal or neglect to follow the case is a substantial error that occasioned a miscarriage of justice. In Eze & Ors vs. Obiefuna & Ors (1995) 31 LRCN page 177, it was held that:

“An error is substantial when it occasioned miscarriage of justice that an appellate court is going to interfere”.From the foregoing, I resolve Issue No.4 in favour of the appellants.

Accordingly, I find merit in this appeal and I hereby allow it. The Ruling of Justice F. U. Ilok, in Suit No. HC/492/2001 delivered on 12th of January, 2004, is hereby set aside. I order that the case, Suit No. HC/492/2001 be remitted to the High Court for trial on merit before another Judge of the High Court of Cross River State.

I award costs of N5,000.00 in favour of the appellants.

Appeal allowed.

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Other Citations: (2005)LCN/1757(CA)

Chief Nta Sam Uket V. Chief Michael Okon Okpa (2005)

LawGlobal-Hub Lead Judgment Report

THOMAS, J.C.A.

This is an interlocutory appeal against the ruling of Ugep High Court of Justice, Cross River State in suit No. HUG/MISC/10/2003 delivered on 14th July, 2003.

The present appellant was the plaintiff/applicant at the lower court in which he filed a motion on notice for:

“An order of interlocutory injunction restraining the defendant/respondent from whether by himself, his servants, workmen, agents and assigns or otherwise howsoever from entering or doing anything inconsistent with the rights of the plaintiff/applicant on the parcel of farmland known and called Kepontamse amon vema abo Mbang ofor and bounded by the parcels of land of Obal Enang Effiom, late Mbang-Ofem, Usang Egu Edet and Ikoi Mbang and equally demarcated by “yetete” trees, until the determination of the substantive suit.” (italics mine)

The above application for reliefs and the supporting 16 paragraphs affidavit was filed, and later, a reply to the counter-affidavit was also filed on 20th March, 2003. Relevant paragraphs will be considered later.

The defendant/respondent’s counter-affidavit of 18 paragraphs will be considered later.

The learned trial lower court heard arguments proffered by the parties in respect of the motion and the supporting and counter-affidavits and reply. Then in the ruling, the reliefs sought was refused and dismissed.

The plaintiff/applicant then applied and was granted leave to appeal. He filed on time, dated 29th July, 2003. He filed three grounds of appeal from which four issues have been formulated for consideration of the appeal.

Appellant’s issues read thus:

Issues

“Whether from the totality of the affidavit evidence of the appellant, the appellant has met the conditions for the grant of an order of interlocutory injunction in his favour.

Whether the appellant has described or identified the subject matter of his application with certainty as to have an order of interlocutory injunction in his favour.

Whether from the affidavit evidence of the respondent, the respondent was able to establish a link between the farmland on which he had judgment in suit No. YDC/85/89 exhibit K in the respondent counter affidavit and the farmland – the subject matter of this action for which the appellant prayed for an order of interlocutory injunction.

Whether the trial Judge properly exercised his discretion judicially and judiciously in refusing the grant of the interlocutory injunction. “

The respondent in his own wisdom formulated a single issue for determination of the appeal and it reads as follows:

“Whether on the totality of the affidavit evidence before the lower court, the refusal by that court of the application for interlocutory injunction could be said to amount to or constitute an improper exercise of judicial discretion?”

From the notice of appeal at page 36-37 of the record, the appellant filed three (3) grounds of appeal but to my utter surprise, his same counsel formulated four (4) issues for determination as reproduced above. It is trite law that multiple issues for determination cannot be distilled from fewer or single ground(s) of appeal. It is offensive for an appellant or respondent to formulate more issues than the number of grounds of appeal. See Ogunbiyi v. Ishola (1996)38 LRCN 824, 830; (1996) 6 NWLR (Pt.452) 12. There is no doubt that the appellant’s four issues for determination are proliferated from the three grounds of appeal and therefore some of them are incompetent. Not only that, appellant’s counsel has stated in their briefs which issue is related to which ground of appeal. For example, at page 5 of the appellant’s brief, it is stated that issue one is “consistent with ground one of the grounds of appeal and issue number one for determination”; that at page 9 of the brief, issue number two is not related to any grounds of appeal; that “issue number three (3) relates to ground two and three”; that at page 11 of the briefs, “issue number four (4) relates to ground one of the grounds of appeal.”

I am therefore convinced that the appellant’s issues are proliferated which is offensive and is strongly deplored. Appellant’s issues 1 and 4 being distilled from same ground 1 of the grounds of appeal are hereby discountenanced being incompetent. From the above, the appellant is left to argue only his issue number 3 distilled from which he claims grounds two and three of the grounds of appeal are related. This is what I will consider together with the respondent’s single issue as their own arguments in determination or the appeal.

Having ascertained the relevant issue to be determined in this appeal, I observed however to note, that, the appellant by then had appeal, first filed a motion ex-parte for interlocutory injunction, but the trial court refused to hear the application ex-parte, and ordered that the respondent be put on notice which was complied and hearing was then adjourned to 20/03/03. See pages 2 – 6 and 7- 9 of the record showing the ex-parte motion and identical motion on notice and supporting affidavits of the plaintiff/ appellant. The respondent’s 18 paragraphs counter-affidavit filed 18/03/03 is found at pages 13 – 14 of the record.

As earlier stated, the remaining surviving issue of the appellant is issue 3 where it is stated as whether from the affidavit evidence of the respondent, he had established a link between the farmland of which he has judgment in suit No. YDC/85/89 – Exhibit K at the farmland – the subject matter of this action.

In his brief argument, the appellant contends that the respondent was unable to relate the farmland upon which he had judgment in exhibit K with the farmland the appellant had applied for interlocutory injunction. Appellant referred to paragraph 8 of the counter-affidavit of the respondent. That the lower court had relied on exhibit K in supporting the respondent that he was in possession of the farmland. That there is no relationship between the land in exhibit K and the land in appellant’s application. That there was no clear boundaries in exhibit K to enable the lower court to ascertain its resemblance with the appellant’s land in his application. That despite paragraphs 7, 8 and 9 of the respondent’s counter-affidavit, he could not describe the land in exhibit K. That the appellant had expected the lower court to compare the parties’ different lands to identify their clear differences, but the court failed to do that. That the appellant had indicated at paragraphs 1 and 2 of his reply affidavit at page 18 of the record of appeal, that Kepontam farmland is a large expanse of farmland where many paternal families and individuals in Ekori own farmlands and that the respondent and the appellant do not share a common boundary.

The appellant further conceded that a judgment of a Native Court is as valid as that of any other court but yet by using a Native Court judgment as a weapon of offence or defence in a practical forensic contest in a Court, the successful party may sometimes know that the weapon has a potential weakness, that in the matter in dispute between them, the respondent needs a good deal to identify the precise boundaries and features of the land in exhibit K to which the former judgment relates and learned counsel for the appellant referred to the case of Adomba v. Odiese (1990) 1 SCNJ 135, 137 r 6, 8; (1990) 1 NWLR (Pt.125) 165.

Learned appellant’s counsel further contended that the appellant had met all the requirements for the grant of the order of interlocutory injunction in his favour and yet the lower court erroneously dismissed his application. He finally referred to paragraphs 13, 15, 16, 17 and 18 of the respondent’s counter-affidavit at page 13 of the record, and submitted, that the paragraphs can not ground the reason for denying the appellant the right to injunction, and the maintenance of the status quo ante. That the afore-said counter-affidavit paragraphs, are mere allegations which would amount to enter into a discussion of their determination by entering into deciding the substantive action.

The brief of the respondent is articulated in his single issue which reads:

“Whether, on the totality of the affidavits evidence before the lower court, the refusal by that court of the application for interlocutory injunction could be said to amount or constitute an improper exercise of judicial discretion?”

Respondent’s contention is that a court, before which an application for interlocutory injunction is made, has to satisfy itself not only that there is a serious question to be tried at the hearing, but that the facts discloses a reasonable probability that the applicant will be entitled to the relief sought. That though the court must not decide the substantive suit, it must allow interplay in its mind, on the relative strength of the parties’ cases. That where by that, an applicant’s case is pregnant with frivolity or vexation, his application is defeated. Respondent’s Counsel relied on the cases of Ogbonnaya v. Adapalm (1996) 6 SCNJ, 23; (1993) 5 NWLR (Pt.292) 147; Falomo v. Banigbe (1998) 6 SCNJ, 42; (1998) 7 NWLR (Pt.559) 679; Kpogban v. Ojirigho (2000) 1 NWLR (Pt.640) 212.

Counsel further submitted that an applicant for prospect of success for his relief is to ascertain the property in question which is to avoid collision with judicial powers of the court. Case of Madubuike v. Madubuike (2000) FWLR (Pt. 30) 2611 at 2620; (2001) 1 NWLR (Pt.719) 698 paragraphs F – G was relied upon. The respondent further contended that the appellant’s affidavit evidence paragraph 14, merely talked of the land as farmland, and that he further compounded his paragraph 3 in support as farmland, situate at Ekori town, that by all standards of English language, a town means a place with many houses, shops and other buildings. He referred to Oxford Advance Learners Dictionary, Special Edition page 1265. That even though, the appellant tried to wriggle out of his description, the applicant, by disagreeing vide paragraph 2 of his reply affidavit at page 18 of the records, with the description proffered by the respondent in paragraph 9, inhibited himself from relying on the respondent’s description that the subject matter was situate at Esekati farm road, and not at Ekori town. That in the final analysis, the appellant had failed to ascertain the area in his application for the interlocutory injunction. That since in law, an injunction order cannot be made over an unascertained land in the subject matter, the lower court’s refusal was right – That the appellant had fallen far short of establishing a cognizable legal right as stated in the case of Odumeru v. Adenuga (2000) 12 NWLR (Pt. 682) 466.

That it would not be enough to claim inheritance and participation in the conflicting and inconclusive manner of the appellant’s paragraph 4 in support and paragraph 3 of the reply affidavit at pages 8 and 18 respectively of the records, but that rather, it was the respondent who showed clearly a conclusive recognizable legal right at page 12 paragraphs 5, 6 and 7 of his counter-affidavit. That the legal right is supported by his exhibit K – judgment’s decision in the case of YDC/85/89.

The appellant’s relevant affidavit evidence in support of his interlocutory injunction are paragraphs 3, 4, 5, 7, 9, 10, 13, 14, 15 and 16. They read as follows:

“3. That the farmland, the subject matter of this action situate at Ekori town and is known and called “Kepontam se amon Yema obo Mbang Ofor.

That the parcel of farmland the subject matter of this suit was inherited from my father Sam Uket Etah by me on his death in 1976.

That at the time that is, in 1976 I was still serving in the Nigerian Army whereof I allowed my late father & wives and relatives to farm on the farmland.

That my bother Arikpo Sam Uket equally farm on the said farmland until 1992 when I came home after my retirement from the Nigerian Army.

That I cultivated part of the land as usual in 2000 and 2001. To this day my cassava crops are on the land.

That on this year’s planting season that is, 2003 I have cleared the farmland and prepared mounds on it preparatory to planting crops thereon. This was on the 13th March. 2003.

That the defendant on the 13th March, 2003 met me at my residence in Ekori at about 6p.m. when I came back from my farm and warned me say among other things that I should never step on the farmland that the farmland belongs to him.

That should the defendant/respondent be allowed to destroy my crops and scatter my mounds 1would suffer irreparable losses that cannot be paid for monetarily as and my family would have nothing to feed. Moreso, if he prevents me from continuing with my farm as usual on the land, being that I have been farming on this land several years ago.

That the farmland is known as Kepontam se amon yema Obo Mbang Ofor and bounded by parcel of land of Oboi Enang Effiom, late Mbang Ofem, Usang Egu Edet and Ikoi Mbang and equally demarcated round by yetete trees planted by my father.

That I was born to meet my father farming on the farmland in dispute for over 50 years.

That I undertake to be bonded in damages if at the end it is found that this suit is frivolous.” The respondent’s relevant counter-affidavit are paragraphs 3, 4, 5, 6, 7, 8, 9, 13, 14, 15, 16, 17 and 18 and they read thus:

“3. The plaintiff’s grand father was one late Uket who begot:

Nta Uket – the father of Usang Nta Uket the present head of the plaintiff’s family;

Ibor Uket – the father of Ofem Ibor Uket (defendant in suit No. YDC/85/89 which suit I was the plaintiff; and

iii. Sam Uket – the father of Chief Nta Sam Uket (the plaintiff).

Elder Igiri Sam Uket (the eldest son of the plaintiff’s father), Uket Sam Uket (next eldest son of the plaintiff’s father) and even Chief Usang Nta (the man in control of plaintiff’s family’s farmlands in Ekori) do not lay claim to the subject matter as they, like the plaintiff, know that it belongs to my Okoi Okpa paternal family.

The man who founded the subject matter (by deforestation) was late Inah Ibor who at his death was succeeded by his son – Okoi Ibor.

Okoi Ibor was succeeded by Chief Okpa Okoi (my grand father) who died in 1952 and was succeeded on the subject matter by my father -late Chief Okoi Okpa who as a youth coming up I started accompanying to his farms on the subject matter as early as 1965.

In 1989 while my father was flat on his back in sickness, Ofem Ibor Uket the paternal brother of the plaintiff trespassed into the subject matter and with the consent of my father I instituted an action against him at the Yakurr District Court in suit No. YDC/85/89.

After a full hearing of the matter, judgment was given in my favour and consequently at the death of my father within the same period, my/paternal family left the control and management of the subject matter in my hands as the oldest male child in Okoi Okpa paternal family and I have since then been in actual and peaceable possession of the same relevant parts of those proceedings are attached/marked exhibit K.

The subject Matter is situate at Kepentam farmland along Esekati is bounded in the North by Chief E’nang Effiom land (one of my witnesses in suit No. YDC/85/89); South by Ofor Mbang (the father of the plaintiffs wife and another of my witnesses in suit No. YDC/85/89); East by Yatebo maternal family land controlled by Usang Egwu Edet; West by Ibor Uket; South/South by Sam Uket and North/East by Mbang Ofem (the other of my witness In suit No. YDC/85/89). the 1990.

During the 1990, 1991, 1992 and 1993farming seasons, I granted yearly leases of the swampy part of the subject matter to Chief Effiom Obeten Okpa.

In early 2001, for the first time, the plaintiff forcibly entered and cleared part of the subject matter for cultivation without my authorization and in exercise of my acts of ownership and possession, I reported his conduct to the Police.

After a careful investigation of the complaint including my title, the plaintiff was arraigned at the Chief Magistrate Court, Ugep in Charge No. MUG/23C/2002 and when he was discharged, I filed an appeal at the High Court of Justice, Ugep that is still pending.

While the said appeal was still pending, in January/February, 2003 the plaintiff again without my authorization entered the subject matter, cleared and destroyed my bush mango and citrus thereat.

When I reported this his conduct to the Police, in the DPO’s interview of the 28th of February, 2003 he was restrained from continuing the clearing for the purpose of maintaining the peace while a visit to the scene of crime and a further DPO interview was fixed for the 4th of March, 2003.

Against Police security restraint, on that 4th March, 2003 the plaintiff was rather met in the subject matter clearing and making mounds aided by his wife – Justina; his son- David; hired labour – Saturday Obeten Obono and two others.

Before the plaintiff’s complained conduct of 4th March, 2003, the plaintiff had used one Ekpo Eyu to carry out further clearing of the subject matter and when on the 7th of March, 2003 he continued in those his acts of trespass, he was arraigned at the Chief Magistrates Court, Ugep in Charge No. MUG/22/C/2003.”

The respondent’s further contention is that, the appellant, also failed at the lower court, because he could not establish a peculiar object of preserving the existing status quo as was decided in Udeze v. Ononuju (2001) FWLR (Pt.43) 370, 384; (2001) 3 NWLR (Pt.700) 216. That the failure to have the status quo was because his paragraphs 4 – 10 of his affidavit evidence clearly show he had conceded that his acts of possession from 2000 – 2002 was the time which coincided with paragraphs 13-18 of the counter-affidavit of the respondent and therefore, the appellant’s purported period of possession amounts to acts of trespass, hostilities or forcible entry for which the respondent warded him off by prosecuting him by the police at Chief Magistrate Court. The respondent submitted that in law, what the appellant prayed for maintaining the status quo were I circumstances created by the appellant himself namely acts of trespass, acts of hostilities or forcible entry; and therefore it could not grant him an application for interlocutory injunction. Counsel relied on case of Madubuike v. Madubuike (2000) FWLR (Pt. 30) 2611 2619; (2001) 1 NWLR (Pt.719) 698; Manya v. Idris (2000) FWLR (Pt.23) 1237, 1251; (2001) 8 NWLR (Pt.716) 627.

Learned counsel for the respondent, further submitted that it is settled law that where two parties claim to be in possession of land, the law ascribes possession to the one with better title and relied on Odubeko v. Fowler (1993) 9 SCNJ (Pt.2) 185, 198; (1993) 7 NWLR (Pt.308) 637. In his final conclusion, the respondent contend that the appellant’s conduct was reprehensible and his delay in bringing his application for injunction was rightly refused and his counsel referred to case of Ihunde v. Samson Roger (Nig.) Ltd. (2000) FWLR (Pt.16) 2782, 2791, and that on the balance of convenience the application was dismissed and he urged the appellate court to dismiss this appeal.

I have carefully considered the motion on notice, including the supporting affidavit evidence of the plaintiff/applicant and his reply, as well as the counter affidavit evidence of the respondent, including their brief arguments.

It is well established by the Supreme Court that there are golden principles before determining whether or not to issue an order of interlocutory injunction applied before a court. These important issues to be considered are as follows:

(a) the applicant’s real prospect of success in the res claimed.

(b) balance of convenience of the parties before the court.

(c) maintenance of status quo ante bellum.

(d) the relative strength of the case of the parties before the court.

(e) conduct of the parties.

(f) inadequacy of payment of damages.

The above six cardinal points ought to be considered before a trial court and it include appellate court where a trial court has failed to consider the above stated principles in an interlocutory injunction on application. See Supreme Court’s decision in Falomo v. Banigbe (1998) 7 NWLR (Pt.559) 679, 694 para. G – H.

See also the decision of this Court in Incar (Nig.) Plc. v. Bolex Ent. (Nig.) Ltd. (1996) 8 NWLR (Pt.469) 687, 700 – 701 para. D – D.I have carefully considered the ruling of the lower court in which the appellant’s application for interlocutory reliefs was dismissed and I found that the lower court had properly applied the golden principles stated above in a meticulous manner.

The learned trial Judge, did not first consider exhibit K alone being the judgment in favour of the respondent, he went further and considered the appellant’s prospect of success, balance of convenience, maintenance of res as status quo ante bellum, the relative strength of both parties as well as the conduct of the appellant as per the counter affidavit evidence of the respondent. The learned trial Judge considered the issue of identity of the land as contended by the appellant and he found that the respondent had clearly identified the land in dispute as identical with the land in which he was granted against a relation of the plaintiff/appellant at the Native District Court – exhibit K.

It is trite law that the court does not form the habit of depriving a successful party the enjoyment of the fruits of his judgment. I am therefore not going to deprive the respondent by denying him the fruit of his judgment which was delivered in suit No. YDC/85/89 by granting the appellant reliefs for interlocutory injunction which was properly refused and dismissed by the trial court. Moreover, in order to deprive the successful party, the applicant must show the strength of his possession which he woefully failed in his affidavit evidence. His possession was for a short period of 2000 to 2003 which was in fact a trespass, and that conduct of trespass, was reprehensible which in turn, involved the police for peaceful maintenance of peace.

In Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 266, 303-4 Nnaemeka Agu (JSC) clearly stated that:

“One of the situations that the law of injunction is designed to combat, is to arrest a fait accompli which a respondent in an application for interim or interlocutory injunction has attempted to foist on the circumstances of the case, as for example, by forcibly taking over the management and control of the subject matter of the substantive case from the applicant before the action on the application has been commenced.”

In the case at hand, it was the appellant who filed his writ, claiming a declaration that the land belongs to him and then even before filing his statement of claim, which is yet to be done, same appellant filed motion for interlocutory injunction and no doubt, it was because of his frivolous trespass which was successfully rebuffed by the respondent through reports to the police and subsequent prosecution at the Chief Magistrate’s Court as per his counter-affidavit evidence which was not rebuffed properly by the appellant in his reply brief.

In the final analysis, the appeal is unmeritorious and my ruling is that the appeal is dismissed. I can not fault the finding of the lower court and that ruling is therefore affirmed. I award cost of N5,000.00 in favour of the respondent against the appellant

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Other Citations: (2005)LCN/1756(CA)