Prince (Dr.) B. A. Onafowokan & Ors. V. Wema Bank Plc. & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

This appeal is against the decision of the Court of Appeal, Lagos Division in its judgment delivered on 25th March, 2004 wherein that Court set aside the decision of the Federal High Court Lagos, striking out suit No. FHC/L/CS/346/2001. The suit was instituted by a Writ of Summons and a Statement of Claim filed on 11th April, 2000 by the Respondents as Plaintiffs against the Appellants as Defendants claiming Declaratory and injunctive reliefs. On being served with the Writ of Summons and the Statement of Claim, the Defendants, without filing a statement of Defence, reacted by filing a Notice of Preliminary Objection to the competence of the action dated 1st July, 2000, contending that the trial Court lacked jurisdiction to adjudicate over the matter because the Plaintiffs had no locus standi to institute the action and urged the Court to strike out the action.

In its Ruling delivered on 9th February, 2001, the trial Court upheld the Preliminary Objection of the Defendants and struck out the action.

Dissatisfied with this Ruling, the Plaintiffs appealed against it to the Court of Appeal which after hearing the appeal, allowed it, set aside the Ruling of the trial Court and remitted the case to the trial Court for hearing the action on the merit by another Judge. The Defendants who were the Respondents at the Court of Appeal who lost in that Court, are now on appeal to this Court on a Notice of Appeal containing two grounds of appeal from which the following two issues were raised in the Appellants brief of argument.

(i) Whether the Court of Appeal was right when it allowed the appeal of the Respondent when it held that the 3rd Respondent (a Receiver appointed for just one property) did not need leave of Court to bring or defend any action or other legal proceedings in the name and on behalf of the Company under Section 393(3) of the Companies and Allied Matters Act, 1990 when the Respondents did not plead the material facts to enable them enlist in aid the provisions of the said Section 393(3) of the Companies and Allied Act, 1990 and when the said Section was interpreted in vacuo by the Court without relating it to the facts of the case.

(ii) Whether the Court of Appeal was right in holding that the preliminary objection taken at the Federal High Court appeared to be premature even though it was clear from the onset that none of the Respondents pleaded any fact which would have allowed the Receiver to sue without the leave of Court i.e that he was appointed Receiver for the whole or substantially the whole of the Company’s property under Section 393(3) and schedule 11 of the Companies and Allied Matters Act, 1990 or which could have made the Court to so infer.

In the 1st Respondent’s brief of argument, in addition to the Notice of Preliminary Objection raised on the alleged incompetence of ground 1 of the Appellants ground of appeal together with its three particulars and issue 1 arising from that ground, two issues were also identified from the two grounds of appeal. Although the issues are differently worded from those framed in the Appellant’s brief of argument, in substance the issues are the same. In what appears to be a spirit of sharing of responsibilities between the Respondents in dealing with the Appellants appeal, the 2nd and 3rd Respondents in their joint Respondents brief of argument, also decided to attack the second ground of appeal which was not included in the 1st Respondent’s Preliminary Objection, in their own Preliminary Objection to ground 2 of the Appellants ground of appeal and issue 2 arising from it as being incompetent. Subject to the ruling on their Preliminary Objection, the 2nd and 3rd Respondents also formulated two issues substantially the same as those in the Appellant’s brief earlier quoted in this judgment.

Starting with the Preliminary Objection of the 1st Respondent to ground 1 of the grounds of appeal, that ground at pages 288 – 289 of the record of appeal reads –

“(1.) The Court below erred in law when it allowed the appeal of the Plaintiffs/Respondents as regards the 3rd Plaintiff/Respondent’s non requirement of leave of the Court to institute or defend an action in the name of the Company (2nd Plaintiff/Respondent) having regard to Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matters Act CAP 59 Laws of the Federation of Nigeria 1990.

PARTICULARS

(a.) Before the Receiver can be (sic) enlist in aid the provisions of Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matters Act CAP 59 Laws of the Federation of Nigeria 1990 he must specifically plead and state in the Statement of Claim that he was appointed for the whole or substantially the whole of a Company’s property.

(b.) In the absence of such material pleading, the lower Court cannot infer that he was so appointed for the whole or substantially the whole of the Company’s property so as to make the requirement of leave of the High Court unnecessary.

(c.) Where it is thus not shown clearly that he was so appointed for the whole or substantially the whole of a Company’s property it would be wrong to enlist in aid the provisions of Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matters Act CAP 59 Laws of the Federation of Nigeria 1990 to circumvent the need for the leave of the Court.

In support of the objection, learned Counsel to the 1st Respondent argued that the Appellants did not raise the issue of a perceived inadequacy in the Respondents pleadings in relation to Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matters Act at the Court of trial and therefore the learned trial Judge made no pronouncement on this issue and that the attempt by the Appellants, as Respondents at the Court below, to raise the issue in their brief, was resisted and turned down by that Court when the issue was struck out.

In their response to the 1st Respondent’s Objection, the Appellants have pointed out that the Preliminary objection not having been filed by Notice as required by Order 2 Rule 9 (1) and (2) of the Rules of this Court, merely raising it in the brief of argument, relying on the case of Nsirim v. Nsirim (1990) 3 N.W.L.R. (Pt. 138) 285 at 297, the Preliminary Objection is incompetent and should be struck out. On the substance of the objection, learned Counsel argued that the issue of the perceived inadequacy of the Plaintiffs’ pleadings in relation to Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matter Act, was clearly raised at the trial Court by the parties and therefore urged this Court to over rule the Preliminary Objection.

On the alleged failure of the 1st Respondent to comply with the provisions of Order 2 Rule 9(1) and (2) of the Rules of this Court in raising the Preliminary Objection, I observe that when this appeal was heard on 22nd February, 2011, this Court granted leave to the 1st Respondent to argue the Preliminary Objection already contained in the Respondents brief of argument. The Objection is not therefore deemed abandoned because it was filed and raised in the Respondent’s brief of argument. The Preliminary Objection is therefore quite in order and what remains now is to determine whether or not it can be sustained.

Although Order 8 Rule 2(2), (3) and (4) of the Rules of this Court have made provisions on how grounds of appeal contained in the Notice of Appeal should be framed by making sure that where a ground allege misdirection or error in law, the particular and the nature of the misdirection or error shall be clearly stated, that the ground shall be without any argument or narrative and that the ground shall not be vague or general in nature, these important guides are not the main basis on which ground 1 of the Appellant’s ground of appeal is being attacked by the 1st Respondent. The main complaint of the 1st Respondent on ground 1 is that the Appellant did not raise the issue of a perceived inadequacy in the Respondents’ pleadings in relation to Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matters Act at the Court of trial and therefore the trial Court did not make any pronouncement on the issue. However, the record of appeal at pages 94, 95 and 97 show quite clearly that the issue was indeed raised and canvassed at the trial Court. In any case, the learned Counsel to the 1st Respondent himself has indicated in paragraph 3.04 of the 1st Respondents brief that –

“Particulars (a.), (b.), (c.) of Ground 1 quoted above, reflect the main complaint of the Appellants before this Honourable Court against the decision of the Court below.”

Indeed, that is the whole purpose of a ground of appeal. The Appellant’s ground 1 therefore as quoted earlier in this judgment is a good ground of law even without the particulars. The Preliminary Objection to the ground is therefore over ruled because a ground of appeal is simply supposed to represent an Appellant’s complaint against the decision he is not satisfied with and which he has grouse against and wants an appellate Court to correct and remedy. See Ojeme v. Momodu 11 (1983) 1 S.C.N.L.R. 188.

Going to the Notice of Preliminary Objection by the 2nd and 3rd Respondents to ground 2 of the Appellants’ grounds of appeal, their main complaint against the ground is that it does not constitute an appeal against the decision or ratio decidendi of the Court of Appeal of 25th May, 2004 now on appeal; that the ground is merely attacking an obiter dictum of the Court below which by virtue of many decisions of this Court, such as Saraki v. Kotoye (1992) 9 N.W.L.R. (Pt.264) 155 at 184 and Egbe v. Alhaji (1990) 1 N.W.L.R. (Pt. 128) 545 at 590, is not appealable.

What the Appellants are saying on their ground 2 in their Appellants’ Reply brief is that the remarks of the Court below that the preliminary Objection taken at the trial Court was premature, relates to the other reason why the judgment of the trial Court was set aside and therefore urged this Court to rely on the case of Military Administrator of Benue State & Ors. v. Ulegede (2001) 17 N.W.L.R. (Pt.741) 194, to dismiss the Preliminary Objection.

The law is trite that a ground of appeal must be against a decision being appealed against and should constitute a challenge to the ratio of the decision. See M.B.N. Plc. v. Nwobodo (2005) 14 N.W.L.R. (Pt. 945) 379 and Egbe v. Alhaji (1990) 1 N.W.L.R. (Pt. 128) 546 at 590.

It is quite clear from the record of this appeal at pages 278 – 279 that although the Plaintiffs/Appellants before the Court of Appeal had raised as many as 4 issues in the Appellants’ brief for the determination of their appeal at the Court below, that Court determined the appeal on the 1st issue alone which reads –

“(i) whether the 3rd Plaintiff/Appellant as Receiver of the property of the 2nd Plaintiff/Appellant must obtain leave of Court to institute or defend an action in the name of the 2nd Plaintiff/Appellant having regard to Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matters Act CAP 59 laws of the Federation of Nigeria 1990 (Grounds 1 & 2 of the Notice of Appeal).

This issue was resolved by the Court below after quoting and considering the provisions of Section 393 of the Companies and Allied Matter Act before arriving at the decision that –

“From the provisions above it is clear that where the Receiver or Manager is appointed for the whole of the Property the powers conferred on him by the debentures by virtue of which he was appointed shall deemed to include the Powers specified in Schedule 11 of CAMA to bring or defend any or other legal proceedings in the name and on behalf of the Company.”

This is the main decision of the Court below in allowing the Plaintiffs/Appellants’ appeal. In other words it is the ratio decidendi of the decision. Any remarks or observation of that Court outside the determination of the power of the Receiver/Manager under Section 393(3) of the Companies and Allied Matters Act, is not part of that decision and is therefore an obiter dictum. Thus, as ground 2 of the Appellants’ grounds of appeal is NOT a complaint against the decision of the Court of Appeal being appealed against, is indeed incompetent as urged by the 2nd and 3rd Respondents and is accordingly hereby struck out. Consequently the 2nd issue in the Appellants brief of argument which was formulated from that ground of appeal now struck out, shall have no legs to stand upon in the consideration and determination of the appeal. I shall now proceed to determine this appeal on the remaining issue 1 in the Appellants’ brief of argument.

The crux of the appeal according to the Appellants is whether the Receiver/Manager appointed over the property of the Company by virtue of a Debenture Trust Deed, can invoke the provisions of Section 393(3) and Schedule 11 of the of the Companies and Allied Matters Act, 1990 without addressing the main contest between the parties which was whether the 3rd Respondent herein can enlist in aid the provisions of Section 393(3) and Schedule 11 of the Companies and Allied Matters Act, 1990 when neither he nor his appointee the 1st Respondent aver in their pleading, that is statement of claim, that the 3rd Respondent was appointed for the whole or substantially the whole of the 2nd Respondent’s property. Learned Counsel after quoting in full the provisions of the Act and the relevant Schedule 11, argued that the Court below merely interpreted the provisions of the Act in vacuo without basing the interpretation on the relevant facts relating to the property of the 2nd Respondent charged in the Debenture Trust Deed executed between the parties. Learned Counsel pointed out that only one single property was charged by the 2nd Respondent in favour of the 1st Respondent and as such the requirement of sub-section (3) of Section 393 of Companies and Allied Matters Act and Schedule 11 of the Act which required the appointment of Receiver/Manager for the whole or substantially the whole property of the Company, before the provisions could apply, was not addressed by the Court below in coming to the conclusion in the interpretation of the provisions. Citing and relying on several cases on the interpretation of statutes based on the facts in issue between parties to the dispute, learned Counsel to the Appellants submitted that the Plaintiffs/Respondents not having pleaded the material fact that the 3rd Respondent was appointed for the whole or substantially the whole of the property of the Company, then the Respondents, particularly the 1st and 3rd Respondents, cannot enlist in aid or seek cover under Section 393(3) of the Companies and Allied Matters Act when objection was raised to the competency of their action at the trial Court without seeking leave of trial Court before institution the action as was the position in Intercontractors Nigeria Ltd. v. N.P.F.M.B. (1988) 2 N.W.L.R. (Pt. 76) 280; Intercontractors Nigeria Ltd. v. U.A.C. (1988) 2 N.W.L.R. (Pt. 76) 303; Adegboyega v. Awu (1992) 7 N.W.L.R. (Pt. 255) 576 and Unibiz (Nigeria) Ltd. v. C.B.C.L. Ltd. (2003) 6 N.W.L.R. (Pt. 816) 402) at 427.

On this lone issue that remains for determination in this appeal, it is contended by the 1st Respondent that having regard to the pleadings of the Respondents, the Court below was right in holding that the 3rd Respondent did not require leave of Court to sue in the name and on behalf of the 2nd Respondent; that contrary to the submission of the Appellants, the Respondents statement of claim at pages 5 – 7 of the Record, contains sufficient material averments from which the Court of trial could have inferred or deduced that the 3rd Respondent was appointed by the 1st Respondent for the whole or substantially the whole of the property of the 2nd Respondent. Learned Counsel to the 1st Respondent referred to and quoted paragraphs 2, 3, 13, 14 and 15 of the Plaintiffs/Respondents’ Statement of Claim as providing such material to support the fact that 3rd Respondent was appointed Receiver/Manager for the whole or substantially the whole of the property of the 2nd Respondent without necessarily pleading the exact words used in the statute. With regard to the cases cited and relied upon by the Appellants on the requirement of leave of Court before the present action was instituted, learned Counsel argued that the cases are not relevant to the present case because Section 393(3) of CAMA was not in issue in the decisions in those cases and therefore urged this Court to dismiss the appeal.

The 2nd and 3rd Respondents’ stand on the lone issue for determination in this appeal is virtually the same as that of the 1st Respondent. Their learned Counsel relying on the decisions of this Court in several cases on pleadings, maintained that it is elementary rule of pleadings that facts must be pleaded but not law. Such cases include Obizuru v. Ozims (1985) 2 N.W.L.R. (Pt. 60) 167 at 179 and Anyawu v. Mbara (1992) 5 N.W.L.R. (Pt. 242) 386 at 398. In the instant case therefore, learned Counsel urged this Court to hold that there are enough facts in the Statement of Claim of the Plaintiffs/Respondents to support the interpretation of the provisions of Section 393 of the Companies and Allied Matters Act as found by the Court below to justify dismissing this appeal.

Taking into consideration that, this appeal arose from the Ruling of the Federal High Court on the Preliminary Objection raised by the Defendants/Appellants to the competence of the action field against them by the Plaintiffs/Respondents resulting in the upholding of the objection and termination of the action in-limine, the law on the procedure taken in the case is well settled. An application to dismiss an action on grounds of law may attack the jurisdiction of the Court simpliciter or raise the issue that the Plaintiff has not made out on the writ of summons and statement of claim a cause of action. In either case the Applicant is deemed to rely for his argument on the facts as stated by the Plaintiff in the statement of claim which for the purpose of such application are deemed accepted. See Ayanboye v. Balogun (1990) 5 N.W.L.R. (Pt. 151) 392 and Ege Shipping & Trading Industry Inco. & Ors. v. Tigris International Corporation (1999) 14 N.W.L.R. (Pt. 637) 70 at 88 – 89.

In the instant case, the Defendants/Appellants acted in accordance with the law when on being served with the Writ of Summons and the Statement of Claim, without waiting to file a Statement of Defence, brought their application to terminate the action on the main ground of law that the Plaintiffs/Respondent lacked the locus standi to institute the action. In taking this course therefore, the Appellants are deemed to have accepted and agreed with all the averments contained in the Statement of Claim. What calls for determination now is whether on the facts pleaded in the Statement of Claim, there are facts supporting the Plaintiffs/Respondents stand that the 3rd Respondent was appointed Receiver/Manager on the whole or substantially the whole property of the 2nd Respondent within the requirement of Section 393(3) of the Companies and Allied Matters Act 1990 as found by the Court below. For the avoidance of any doubt I quote below the relevant paragraphs 1 – 13 of the Statement of Claim dated 7th April, 2000 and filed at the trial Court on 11th April, 2000 which the Defendants/Appellants are deemed to have agreed with without any dispute as laid down by the law.

“1. The 1st Plaintiff is a Commercial Bank duly incorporated and licensed in Nigeria and has its Head Office at 54, Marina, Lagos.

2. The 2nd Plaintiff is a Company incorporated in Nigeria having its registered office at Abimbola House, 24, Abimbola Street, Ilasamaja, Isolo, Lagos and has been in Receivership since the 14th day of March, 2000.
3. The 3rd Plaintiff, a Chartered Accountant, is the Receiver/Manager of the 2nd Plaintiff and has his office at No.4, Bunmi Joseph Close, Gbagada Phase II, Lagos.
4. The 1st, 2nd and 3rd Defendants are Directors and Officers of the 2nd Plaintiff and their last known address is at Abimbola House, 24, Abimbola Street, Ilasamaja, Isolo, Lagos.
5. The 2nd Plaintiff maintains a current account with the 1st Plaintiff and a consortium of Banks namely First Bank of Nigeria Plc; Diamond Bank Limited; Afribank Nigeria Plc, Eko International Bank Plc, Rims Merchant Bank Limited and Citizen International Bank Limited hereinafter called “the Consortium of Lenders.
6. The 2nd Plaintiff applied to the 1st Plaintiff and the Consortium of Lenders for credit facilities and same was granted by the 1st Plaintiff and the Consortium of Lenders.
7. The credit facility granted to the 2nd Plaintiff by 1st Plaintiff and the Consortium of lenders was secured by a Debenture Trust Deed dated 14th June, 1994 and a supplementary Debenture Trust Deed dated 19th September, 1996. The said Debenture Trust Deed and Supplementary Debenture Trust Deed were executed by the Consortium of Lenders. The Plaintiff shall rely on the said Debenture Trust Deed which is registered as 30/30/1958 and the Supplementary Debenture Trust Deed which is registered as 80/80/1987 at the Land Registry in the office at Lagos as well as the Certificate of Registration of a Debenture Trust Deed issued by the Corporate Affairs Commission dated 17th August, 1994 and 24th September, 1996 respectively the trial of this action.
8. By virtue of the Debenture Trust Deed referred to in paragraph 7 above, the 2nd Plaintiff created a first Charge in favour of the 1st Plaintiff over all the hereditaments buildings and property of the 2nd Plaintiff including Plants Machinery Equipment, Warehouse, Office Block and other real property lying situate and being at 24, Abimbola Street, Ilasamaja, Isolo, Lagos.
9. The 2nd Plaintiff failed to liquidate its debt to the 1st Plaintiff and the Consortium of lenders by virtue of the credit facilities.
10. The 2nd Plaintiff’s indebtedness to the 1st Plaintiff and the Consortium of Lenders on the credit facilities stood at N311,000,000 as at March 14, 2000.
11. The Plaintiff and Consortium of Lenders agreed with the 2nd Plaintiff to grant a memorandum on interest element on the sum due in December, 1997 with a view to encouraging the 2nd Plaintiff to pay its debt by way of a quarterly instalment of N30 Million but the 2nd Plaintiff defaulted in the agreed instalmental payment. The Plaintiffs will rely on the Memorandum of Understanding dated 15th December, 1997 executed by the 2nd Plaintiff as well as all the letters written by the 2nd Plaintiff on its inability to meet instalmental payments at the trial of this action.
12. The 1st Plaintiff made several demands on the 2nd Plaintiff and when the 2nd Plaintiff refused to meet its obligation to the 1st Plaintiff and the Consortium of Lenders, the 1st Plaintiff by its letter dated 11th November, 1998 foreclosed the security provided by the 2nd Plaintiff.
13. The 2nd Plaintiff failed to liquidate the debt to the 1st Plaintiff and the Consortium of Lenders and consequent upon its default the 1st Plaintiff in the due exercise of its Power under Clause 15 of the Debenture Trust Deed appointed the 3rd Plaintiff on the 14th day of March, 2000 as the Receiver/Manager of the 2nd Plaintiff. The Deed of Appointment and Notice of Appointment of the 3rd Plaintiff as the Receiver/Manager of the 2nd Plaintiff will be relied upon at the trial of the suit.

It is quite clear from the facts averred in these paragraphs that the 2nd Respondent Company is indebted to the 1st Respondent Bank and other Consortium of Lender Banks to the tune of N311,000,000.00 as at 14th March, 2000. It is also clear that by two separate Debentures Trust Deeds executed on 14th June, 1994 and 19th September, 1996, the 2nd Respondent Company created a first charge in favour of the 1st Respondent and other Consortium of Lending Banks over all the hereditaments Buildings and property of the 2nd Respondent Company including Plants, Machinery, Equipment, Warehouse, Office Block and Real Property at No. 24 Abimbola Street Ilasamaja Isolo Lagos.

It is also plain from the undisputed facts averred, that the 2nd Respondent was in default in paying back the loan which led to the exercise of the powers of the lenders under Clause 15 of the Debenture Trust Deed to appoint the 3rd Respondent a Receiver/Manager over all the properties of the 2nd Respondent charged under the Debenture Trust Deeds. There is no doubt whatsoever that the appointment of the 3rd Respondent as a Receiver/Manager covers all the assets and property of the 2nd Respondent charged in the Debenture Trust Deeds to secure the loan granted to the 2nd Respondent. In the circumstances therefore, the appointment of the 3rd Respondent is completely within Section 393(3) of the Companies and Allied Matter Act for the whole or substantially the whole of the property of the 2nd Respondent to qualify him to enjoy the rights specified under Clause 5 of Schedule 11 of the Companies and Allied Matters Act, as rightly found by the Court below. Section 393(1), (2) and (3) of the Companies and Allied Matters Act in question state –

“393(1) A person appointed a receiver of any property of a Company shall subject to the rights of prior incumbrances take possession of and protect the property, receive the rents and profits and discharge all out-goings in respect thereof and realize the security for the benefit of those on whose behalf he is appointed, but unless appointed manager he shall not have power to carry on any business or undertaking.

(2) A person appointed manager of the whole or any part of the undertaking of a Company shall manage the same with a view to the beneficial realization of the security of those on whose behalf he is appointed.

(3) Without prejudice to subsection (1) or (2) of this section, where a receiver or manager is appointed for the whole or substantially the whole of a Company’s property, the powers conferred on him by the debentures by virtue of which he was appointed shall be deemed to include (except in so far as they are inconsistent with any of the provisions of those debentures) the powers specified in the Eleventh Schedule to this Act.”

The provisions are quite plain that where a receiver or manager is appointed for the whole or substantially the whole of a Company’s property, the powers conferred on him by the debentures by virtue of which he was appointed, shall be deemed to include, except in so far as they are inconsistent with any of the provisions of those debentures, the powers specified in the Eleventh Schedule to the Act. Since the Appellants in this case are not saying that there is any inconsistency in contents of the Debenture Trust Deeds on the powers to appoint a receiver/manager, the 3rd Respondent appointed by the powers expressed under paragraph 15 of the Debenture Trust Deed is deemed to have all powers specified in Schedule 11 of the Act including the power in Clause 5 to bring or defend any action or other legal proceedings in the name and on behalf of the 2nd Respondent Company. The only complaint of the Appellants in the instant case is that the Plaintiffs/Respondents in their statement of claim, did not plead the fact that the 3rd Respondent was appointed Receiver/Manager for the whole or substantially the whole property of the 2nd Respondent Company to qualify him to enjoy the powers of a Receiver/Manager under Section 393(3) of the Companies and Allied Matters Act and the 11th Schedule to the Act. The contents of paragraphs 1 to 13 of the statement of claim earlier quoted in this judgment particularly paragraph 8 thereof have shown that the Debenture Trust Deed had created a first charge over all and not only one as claimed by the Appellants, of the properties of the 2nd Respondent at 24 Abimbola Street, Ilasamaja Isolo, Lagos over which the 3rd Respondent was appointed a receiver/manager. This to me clearly shows compliance with the provisions of Section 393(3) of the Companies and Allied Mattes Act as found by the Court below. Thus, the Plaintiffs/Respondents having pleaded that the appointment of the 3rd Respondent as Receiver/Manager was over all the properties of the 2nd Respondent Company, the fact that the exact words of “the whole” or “substantially the whole” property of the Company was not used in the pleading, will not affect the fact that the appointment was made over all the property of the company at 24, Abimbola Street Ilasamaja Isolo Lagos. It is therefore not correct as claimed by the Appellants that the Court below merely interpreted the provisions of the Act in ‘vacuo.’

Consequently, as the appointment of the 3rd Respondent by 1st Respondent as Receiver/Manager over all the properties of the 2nd Respondent Company charged under the Debenture Trust Deeds was made in substantial compliance with Section 393(3) of the Companies and Allied Matters Act and Schedule 11 of that Act, the 3rd Respondent required no leave of Court to institute the action against the Appellants to recover the loan granted to the 2nd Respondent which is still awaiting liquidation. The cases of Intercontractors Nigeria Limited v. N.P.F.M.B. (supra) Intercontractors Nigeria Limited v. U.A.C. (supra), Adegboyega v. Awu (supra) and Unibiz (Nigeria) Limited v. C.B.C.L. Limited (supra) in which the provisions of Section 393(3) of the Companies and Allied Matters Act and Schedule 11 of that Act did not arise for consideration, are not relevant.

In the light of the foregoing, I find no merit at all in this appeal which is hereby dismissed. The judgment of the Court of Appeal including the order remitting the case to the trial Court for hearing the action on merit by another Judge of the trial Court is affirmed. I am not making any order on costs.

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SC.88/2004

Senator Joy Emordi V. Hon. Alphonsus Uba Igeke & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI

The appeal in SC.176/2010 is against the decision of the Court of Appeal, Enugu Division (‘the court below’ for short) handed out on 12th May, 2010. Therein, two applications filed by the appellant were dismissed

It is apt to state briefly the relevant facts leading to this appeal. The appellant, the 1st and 2nd respondents were among the candidates who contested the National Assembly Election for Anambra State North Senatorial District which was conducted on 28th April, 2007. The 6th respondent returned the appellant as the elected candidate at the election. The return of the appellant was challenged vide petitions filed at the Election Petition Tribunal, Awka by the 1st and 2nd respondents, respectively. The Tribunal dismissed both petitions. This prompted the 1st and 2nd respondents to initiate separate appeals at the court below.

Appeal No. CA/E/EPT/78/2008 by the 2nd respondent was heard first by the court below. On 10th February, 2009, it delivered judgment wherein the appeal was dismissed on the ground that failure to join the Presiding Officers who worked at the election was fatal to the petition. Subsequently, the same Division of the court below, partly, differently constituted, heard and delivered judgment in Appeal No. CA/E/EPT/04/2009 initiated by the 1st respondent. In the judgment handed out on 26th March, 2010, the appeal was allowed. The court below reversed the judgment of the Tribunal, set aside the return of the appellant and ordered that the 6th respondent should issue a certificate of return to the 1st respondent as the candidate elected at the said election. There emerged a seeming conflict in the two judgments of the court below.

The appellant thereafter filed two applications before the court below in quick succession. The first application sought for the setting aside of the later judgment of the Court below on ground of being a nullity. The second application required a clarification of the purport and intendment of the two conflicting judgments of the court below. On 12th May, 2010, the court below dismissed the appellant’s applications. The above scenario precipitated the appellant’s appeal to this court seeking, inter alia, a referral on the interpretation of the two judgments of the court below and direction in respect of same.

The 6th respondent filed a Notice of preliminary objection dated 26th October, 2010 urging this court to strike out the appeal on the following grounds:-

(a) The appeal contravenes the provision of section 246 (3) of the Constitution of the Federal Republic of Nigeria 1999.

(b) The appeal is an abuse of the process of this Honourable court as it is targeted at irritating and annoying the respondents and is an affront on the efficient and effective administration of justice in this Honourable court.

(c) The appeal is not only vexatious and frivolous but oppressive and malicious.

On 1st February, 2011, when this appeal was heard, learned counsel for the 6th respondent moved the notice of preliminary objection. The argument canvassed in respect of the preliminary objection is contained in the 6th respondent’s brief of argument filed on 26th November, 2010.

On behalf of the 6th respondent, learned counsel submitted that vide the provision of section 246(3) of the Constitution of the Federal Republic of Nigeria, 1999 the decision of the Court of Appeal in respect of appeals arising from election petitions shall be final.

He submitted that the use of the word ‘shall’ denotes obligation or command which gives no room to discretion. He cited the case of Bamaiyi v. A.G. Federation & Ors. (2001) 12 NWLR (Pt. 727) 468 at 497.

Learned counsel observed that the word ‘final’ connotes that the decision of the Court of Appeal in respect of election petitions is conclusive and never to be re-visited. He cited the cases of Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116 at 153; Onuaguluchi v. Ndu (2001) 7 NLR (Pt. 712) 309; Okonkwo v. Ngige (2007) 12 NWLR (Pt. 1047) 191 at 21B.

Learned counsel submitted that the appellant, who knew that an issues relating to Senatorial Election matters such as her own terminate at the Court of Appeal, ought not to have filed this appeal. He felt that such equates to an abuse of court process. Learned counsel cited the cases of Akintunde v. Ojo (2002) 4 NWLR (Pt. 757) 284 at 302; Jimoh v. Starco Nig Ltd. (1998) 7 NWLR (Pt. 558) 522 at 527; Arubo v. Aiyeleru & Ors. (1993) 3 NWLR (Pt.280) 126 at 142.

Learned counsel urged that the preliminary objection be sustained and the appeal should be struck out for lack of jurisdiction or dismissed for being an abuse of court process.

On behalf of the appellant, learned counsel submitted that the issue before this court arose from a civil matter questioning whether the Court of Appeal has constitutional powers to make two conflicting decisions in respect of the same case without one of the judgments invalidating the other. Learned counsel strongly felt that the issue is a constitutional one and that this court is imbued with jurisdiction to entertain same vide a referral under Section 295 of the 1999 Constitution to the Supreme Court.

Learned counsel felt that the facts of this case appear different from those in the cases of Awuse v. Odili (supra) Onuaguluchi v. Ndu (supra) as well as Okonkwo v. Ngige (supra). Learned counsel observed that the appeal arose from a civil case challenging the conflicting judgments of the Court of Appeal and urging this court to exercise its appellate powers as contained in Section 233 (2) (b) of the Constitution of the Federal Republic of Nigeria 1999 and interpret section 246 (3) of the Constitution as it applies to the Ruling of the Court of Appeal delivered on the 12th day of May, 2010. Learned counsel urged that the preliminary objection be dismissed in its entirety.

As stated earlier on in this judgment, the preliminary objection is rooted on the provision of section 246 (3) of the 1999 Constitution which reads as follow:-

“246 (3) – The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.”

The word ‘decision’ in legal parlance is defined as ‘a judicial determination after consideration of the facts and the law, especially a ruling, order or judgment pronounced by a court when considering or disposing of a case.

The word ‘shall’ as employed in the above quoted applicable section 246 (3) of the Constitution denotes obligation or a command and gives no room for discretion. By its nature, it is mandatory and one cannot wriggle out same. It imposes a duty. Where a provision stipulates that a thing shall be done it goes without equivocation that a peremptory mandate is enjoined. Refer to Bamaiyi v. Attorney-General Federation & Ors. (Supra) at page 497.

Briefly put, the word ‘final’ as employed in the applicable Section 246 (3) connotes conclusiveness; point never to be revisited.

Let me state it clearly that the provision of Section 246 (3) of the Constitution is not ambiguous. And so, it should be given its ordinary meaning. The ruling of the court below of 12th May, 2010 is rooted in election appeal which the law stipulates that it should end at the Court of Appeal. .

In the case of Alao v. ACE Ltd. (2000) 9 NWLR (Pt. 670) 264, it was pronounced that although this court is the court of last resort, it is nevertheless, a court of appellate jurisdiction which is regulated by the Constitution. Its jurisdiction is basically appellate apart from first instance restricted matters. The court is statutory and cannot for the sake of doing justice confer on itself a jurisdiction where none is given to it by the Constitution or by any statute. See also the case of Dangtoe v. C.S.C Plateau State (2001) 9 NWLR (Pt.717) 132 at 150 where the same opinion was expressed.

It is clear to me that the decision of the court below as entered on 12th May, 2010 is final and not subject to appeal to this court. I need to state it in clear terms that such finality applies to every interlocutory decision or any decision taken in respect of a matter or an issue concerning or arising from the decision reached in the substantive appeal before the court below.

The employment of the word ‘shall’ points to mandatory realm. It imbues the court below with ultimate and final jurisdiction. It has been interpreted by this court in a line of authorities to deprive this court of jurisdiction and Competence in appeals such as this one relating to Senatorial election petition. The Court of Appeal is the final court in respect of same. This court will not allow an imagined referral vide section 295 of the 1999 Constitution through the back door, as it were.

I am of the considered view that this court is not imbued with the requisite jurisdiction and competence to hear the appeal. Refer to Onuaguluchi v. Ndu (supra), Awuse v. Odili (supra) and

Okonkwo v. Ngige (Supra).

With all the above in view, I have no hesitation in upholding the preliminary objection raised on behalf of the 6th respondent that this court lacks jurisdiction and due competence to hear this appeal. It is hereby struck out.

Appeal No. SC. 466/2010 is between the same parties with similar background and issues as the one considered above. It is equally caught by the provision of Section 246(3) of the 1999 Constitution. It is also struck out for want of jurisdiction.

Both appeals are hereby struck out. I assess costs at N50, 000.00 in favour of each respondent against the appellant.

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SC.176/2010 (CONSOLIDATED)

His Highness, Alhaji A.g. Momoh & Ors. V. His Highness, Alhaji I.m. Umoru & Ors. (2011)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA J.S.C.

This case has a chequered history- The court below was saddled with the task of having to hear the appeal for the second time under the following circumstances. The present appellants as plaintiffs first commenced the action in 1981, before the High Court of Auchi in suit No. HAU/46/81 presided over by Akpovi (J) (as he then was). Judgment was delivered in 1984 whereby the learned trial judge refused to grant the declaratory reliefs and the order of injunction being sought by the plaintiffs. In the said judgment the learned trial Judge gave what he termed as “a compromise solution” judgment.

Dissatisfied with that decision the plaintiffs appealed to the court below, which allowed the appeal but made consequential order remitting the case to the High Court Auchi for re-hearing de novo. Their further appeal to this court was struck out. The plaintiffs were thereby left with no legal option but to revert to the earlier order of the court which was to re-hear the case de novo.

The re-hearing commenced before Maidoh (J). But upon the creation of Delta State out of former Bendel State and the subsequent deployment of Maidoh (J) to the Delta state Judiciary the case was assigned to Sadoh (J) who decided in favour of the Defendants in 1994.

In their 3rd Further Amended Statement of Claim, the Plaintiffs claimed the following reliefs:

“(a) A declaration that in accordance with Auchi Customary Law and tradition, the plaintiffs, the people of Auchi, are the persons vested with all existing rights to the use and occupation of all that piece or parcel of land lying and situated in Auchi, in the Etsako Local Government Area of Bendel State and within the jurisdiction of this Honourable Court, and verged pink in plan No. 1092 filed herewith, (the said land though well known to the defendants is as shown).

(b) A declaration that the plaintiffs, the people of Auchi or Auchi Community by virtue of Auchi Customary Law and tradition, are the persons entitled to the Customary and/or Statutory Right of Occupancy in respect of the said piece or parcel of land.

(c) An order of perpetual injunction restraining the defendants whether by themselves, their servants, agents or any person claiming through or under them or whatsoever from entering re-entering or remaining upon the said piece or parcel of land in purported exercise of any right in relation to the possession, use and occupation of the land or any part thereof in derogation to the plaintiff’s vested rights or interests therein.

(d) Additionally, the plaintiffs seek forfeiture or declaration of forfeiture by the defendants of the area of plaintiffs land (Sabo Quarters) occupied by the defendants with the permission or tacit permission of the plaintiffs before disputes arose between the parties, and by reason of defendants’ claim of title thereto and denial of the plaintiff’s title.”

The defendants on their part filed a 2nd Further Amended Statement of Defence.

The Plaintiffs called a total of 5 witnesses. In addition, the 3rd and 4th plaintiffs also testified while on the part of the defendants the 1st defendant testified.

At the close of the case for the parties, learned Counsel each addressed the Court. Following this the learned trial Judge gave judgment in favour of the Defendants.

Dissatisfied with judgment the plaintiffs appealed to the Court of Appeal sitting in Benin City.

On 19/1/2000, the lower court, delivered its judgment in which all the issues canvassed by the Appellants were resolved against them. The appeal was accordingly dismissed and the judgment of the learned trial Judge was affirmed.

The Appellants herein being dissatisfied with the judgment further appealed to this Court on SEVEN grounds issues formulated by the Appellants for determination of this Court are set out as follows:-

“(1) Was the Lower Court right when it upheld the judgment of the learned trial judge and held that the evaluation of evidence by the learned trial judge was not perverse (Ground 1)

(2) Whether the Lower Court was right when it agreed with the learned trial Judge that the traditional histories pleaded and given in evidence by the parties as to the point of arrival and from where the parties migrated are conflicting. (Ground 2)

(3) Whether the Lower Court did not misdirect itself when it held that the learned trial judge was right in his criticism of Exhibit “A”. (Ground 3).

(4) Was the Lower Court right when it upheld the Trial Court’s decision that the Justice Obi’s Commission of Enquiry Report on the boundary between the parties in this appeal was binding on the appellants (Ground 4),

(5) Was the Lower Court right when it upheld the learned trial judge’s finding that title to the land in dispute could not be declared in the appellants’ favour because the payment of compensation to the respondent by Dumez and the establishment of Ekhabhele Primary School, Iyakpi were positive and numerous acts of ownership and possession of the land in dispute by the respondents. (Ground 5).

(6) Was the Lower Court right in upholding the judgment of the Trial Court (Grounds 6 and 7).

Sole issue was presented by the Respondents for determination thus:

“Whether the Learned Justices of the Court of Appeal were right in law and on the facts in holding that the appellants failed to prove their case at the Court of first instance.”

On 15th day of March, 2011, this appeal was heard. Learned Counsel for the Appellants, C.O. OHIKOGU Esq., referred the Court to the Appellants’ brief of argument dated and filed on 07/03/2005, but after been granted an enlargement dated and filed on 07/03/2005, but after been granted an enlargement of time to file it was deemed filed on 25/03/2005. He urged us to allow the appeal. In the same vein, the learned senior counsel for the Respondents having identified his brief of argument deemed filed on 20/08/2008 urged us to dismiss the appeal.

From the issues formulated by the parties in this appeal, I am of the respectful view that the sole issue formulated by Respondents can properly and effectively determine the appeal. But before going into the arguments of the parties to resolve the issues raised, it is apt and necessary to give a brief narrative of the facts, which form the basis of the claims of the respective parties.

The Appellants’ side of the story is that their ancestor Uchi, together with his five sons namely Usagun, Akpekpe (Afekpe) Aibotse, Igbei and Ekhei migrated from Udo in Benin, which is within the present day Ovia West Local Government Area of Edo State to settle in the place now called AUCHI. The original settlement encompassed an area marked by the site of the Uchi Market at Auchi. Uchi’s settlement grew in size because of the demand for land for farming and hunting purposes and also as a result of the sons’ movement to settle in area bearing their names and farming quarters or villages of Auchi.

The boundary neighbours of the Auchi people are named as the people of Warrake and Ivbiaro (Iyaro) to the West, the people of Avia to the North, Jattu (Uzarue) to the North East, Ibienafe people of the South, Ibie clan to the East and the people of Ugioli (Aviele) to the South. That their boundary with Ibie Nafe is marked by an Albino mound on an old ancient footpath.

It is the case of the Appellants that in 1964 – 65 the people of Auchi as represented by the Otaru gave the parcel of land on which Auchi Polytechnic (formerly Mid-West Technical College). It was then that the first direct and overt assertion of adverse title by Iyakpi people to the land in dispute came when the Respondents claimed to be the owners of the said land in order to benefit from compensation payable by Government. The Appellants also claimed to have left the Respondents on the land in dispute because they were subjects of the 1st Appellant form 1920 to 1950. The appellants went to court when the Respondents became unfriendly by teaming up with Uzairue people against the appellants.

The Respondents on the other hand assert that their ancestors migrated from Benin in about the 15th century and settled at their present site. It was from this site that the founders of the other South Ibie villages migrated to where they now occupy. That “Ibie Nafe” means people that ran away from home. That Iyakpi is the original settlement of the South of Auchi Polytechnic was done with their permission. Other positive acts of ownership by the Respondents, as they claim are the possession of 100 houses, Ekhabhele Primary School and farms. The Respondents accepted the decision of the Justice J.A. Obi’s Commission of Inquiry which was set up by the government to establish the boundary between the Plaintiffs’/Appellants’ Community and its neighbours.

Now turning to the issues for determination, it should be observed that the learned senior counsel for the appellants in the brief of argument argued issues 1, 2, 3 and 6 together. This is in view of the fact that those issues are intertwined and cannot be properly dealt with without touching on matters surrounding them which are unduly proliferated but are ably subsumed in the sole issue raised by the Respondents. In the main, it is the contention of the appellants counsel that the lower court was wrong when it held that the evaluation of evidence by the trial court was not perverse. He submitted that the lower court came to this conclusion without showing how it arrived at same. That apart from reproducing the evidence led at the trial, the lower court did not marry the issues raised by the appellants in their brief of argument touching on the said evidence so led That once an issue is raised for determination, the court has duty to determine same, relying on the case of AFOLAYAN v. OGUNRINDE (1990) 1 NWLR (Pt 127) 369 at 383.

On the traditional histories as pleaded by the parties, it is the submission of Learned Senior Counsel for the appellants that the lower court was not right when it agreed with the learned trial judge that the traditional histories pleaded and given in evidence by the parties as to the point of arrival and settlement on the disputed land and from where the parties migrated are conflicting. It is the contention of the appellants that they pleaded their traditional history in paragraphs 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 18(a) of the 3rd Further amended Statement of claim. Summarizing the paragraphs’ the Appellants have claimed that by Auchi Native Law and Custom all lands are communally owned and are subjected to the overriding interest or rights of the community. That the Otaru of Auchi is the traditional trustee of all Auchi lands and he alienates any parcel of land on the recommendation of the Land Allocation Committee. That the land in dispute was originally occupied by Iyekhei people of Igbei quarter or village of Auchi. That the people left the land in dispute for the present day lyekhei sub-quarter of Auchi. After the said Iyekhei left the land in dispute, the people of Igbei who are their brothers spread in and occupied same by erecting buildings and farming.

On the question of boundaries of the disputed land, learned senior counsel in his brief in paragraphs 4.11 alluded to the pleadings of the appellants in paragraphs 17, 18 and 18(a) and summarized them thus:

“(a) That people of Warrake and Ivbiaroto the West, those of Avia to the North, Jattu (Uzairue)to the North East, those of Ibie-Nafe of South Ibie clan to the East and those of Ugioli (Aviele) to the South.

(b) The land in dispute is encompassed by Auchi land to the West and abuts Auchi Polytechnic land granted to the then Government of Midwestern Region by the Otaru of Auchi on behalf of Auchi Community.

(c) On the north-west of the Auchi Polytechnic land is the Igbei quarter or village of Auchi.

(d) Also the boundary with the land in dispute to the South is the land of the Ugioli (Aviele) people, on the East-north is the Ibie Nafe people and to the far North is the Otaru Grammar School, Auchi.

(e) The Intelligence report of Mr. H. Spottiswood boundaries settlement ordinance enquiry between Auchi and Uzairue clans and that of Mr. S. J. Henry between Auchi and Aviele clans.”

In their further quest to strengthen their case the appellants in paragraphs 4 .12 of their brief summarized the traditional history in the following terms:

(i) That Akpi is the ancestor of Iyakpi people of South Ibie;

(ii) That the original home of Atse was Ibie-Nafe (meaning of Ibie people at the place where all the Ibies once settled);

(iii) That Atse begat Akpi and other sons;

(iv) That Akpi like other sons of Atse broke away from their father;

(v) That Akpi, after breaking away, settled on part of Ibie-Nafe land to the East and South-East of Auchi known a Iyakpi;

(vi) That the Native Authority School was established on a small portion of the land in dispute;

(vii) The land on which the school was sited which was later taken in by Sabo quarters turn out to be the land in dispute as a result of the acts of trespass carried out by Iyakpi people who squatted and built houses on part of the land which they nicknamed Sabo.

(viii) This initial act of trespass by Ivakpi people was accommodated by the Auchi people who before the advent of the 1st respondent as the Aidonogie of South Ibie clan acknowledged the over lordship of the Otaru of Auchi, assumed an alarming proportion in the wake of 1964 – 1965.

(ix) As a result of this alarming rate of trespass, there became a threat of violent clashes and this led to three (4) inconclusive Government Commissions of Inquires.

As I have noted the learned senior counsel for the Appellants conveniently argued issues 1, 2, 3 and 6 together. I agree with him that the argument on issue 1 cannot be entirely dealt with without touching on those matters surrounding issues 2, 3 and 6. But as I have equally observed the sole issue raised by the Respondents has most comprehensively covered all the six issues set out by the Appellants. In the circumstance, I shall consider the findings of fact made by the learned trial judge based on both oral as well as documentary evidence vis a vis their evaluation since the lower court came to the conclusion that the evaluation, of evidence by the trial judge was not perverse.

The Appellants as plaintiffs at the trial court in their 3rd Further Amended Statement of Claim inter alia, sought for a declaration that in accordance with Auchi customary law and tradition themselves, and the people of Auchi are the persons vested with the title, use and occupation of all the disputed land lying and situate in Auchi, East of Etsako Local Government Area of Edo State.

At the trial the learned trial judge identified the issue for determination at pages 248 – 249 of the records therein thus:

“The issue for determination therefore in the case is, which of the two communities i.e. the plaintiffs or the defendants own the land in dispute in this case. The parties being different communities, the determination of the boundary between the plaintiffs and the defendants is the burden for the determination of the ownership of the land in dispute in this case.”

Then to his findings on the same page:

“The Auchi Community being the plaintiffs in this case have put the area in dispute as pet their survey plan filed in this case, exhibit A; as 280.383 hectares. The plaintiffs did not put the area occupied bv Auchi Polytechnic within the area in dispute. The defendants put the area in dispute as 548.97 hectares as per their survey plan exhibit Q. The area occupied by Auchi Polytechnic its staff quarters is put in dispute. This area is twice the Area put in dispute by the plaintiffs. It is however pertinent to point out that the defendants did not counter-claim any land in this suit. In the end whether the plaintiffs’ claim succeeds or fails will be related to the area claimed by them.

The learned trial judge went into considering some authorities on what plaintiff must prove in a land case (as in IDUNDUN v OKUMAGBA (1976) 9-10 SC.227 and he quickly reverted into the evidence of traditional history and held as follows:

”Reverting once more to the traditional histories pleaded and given in evidence by the parties to his suit, I hold that the said traditional histories are conflicting as to the point of arrival and from where the parties migrated and also on the boundary between the plaintiffs and the defendants. It has been held by the Supreme Court in the case of POPOOLA & ORS v JOSHUA ADEYEMO & ANOR (1992) 8 NWLR (Pt.257) 1 at ratio 1 that where there is such conflict, the proper course open to the court in resolving the conflict is to test the traditional history by reference to the facts in recent years established by evidence and by seeing which of the competing, histories is more probable”. (Underlined for emphasis).

Indeed the learned trial judge accordingly resorted to the examination of Exhibits ‘C’ and ‘D’. He found that these exhibits tendered by the Appellants’ which are inter-tribal boundary proceedings between Auchi and Aviele and between Auchi and Uzairue clan respectively to be of little help in the determination of the boundary between the Appellants and the Respondents. The learned trial judge also examined the survey plans Exhibits ‘A’ and ‘Q tendered by the Appellants and Respondents respectively and found that Exhibit ‘A’ did not represent the correct position of things on the ground especially with respect to the positions of IYAKPI, a boundary neighbour to Auchi. He disbelieved that the boundary between the Appellants and the Respondent was correctly reflected in Exhibit ‘A’ He then found that the numerous acts shown in the area in dispute such as buildings and farms were acts of ownership properly exercised by the Defendant/Respondents within the land in dispute.

At page 255 lines 15-20 of the Records the learned trial judge while considering Exhibit ‘F’- “Short History of South Ibie Clan” o0n which Pw5 was called and examined, held as follows:

“…With respect to exhibit ‘F’, I have no difficulty in coming to the conclusion that exhibit ‘F’ cannot be relied upon as an authority on the subject matter of the book”

With regard to the Justice Obi’s Commission of Inquiry in respect of the land in dispute between the parties learned trial Judge held that:

“………Hon. Justice Obi’s Commission of Inquiry set up by virtue of the provisions of the Commission of Inquiry Law cap 41 should enjoy the benefit of a judicial tribunal whose findings and decision should, subject to the review of the Government that set it up to be conclusive and guiding on the parties concerned.”

The Court of Appeal in this case noted that the appeal before it “revolves principally around the appraisal and evaluation of oral and documentary evidence of witnesses”, it was not in as good position as the trial court to examine them before forming its opinion. The court rightly proceeded to analyze the oral and documentary evidence tendered at the trial. It rightly decided on the extent of the area of occupation of each community. After painstaking consideration the court below came to the conclusion that the evaluation of evidence by the learned trial judge was not perverse. It is trite that the primary function of the trial court that saw and heard the witnesses to assess the credibility of those witnesses and to believe or disbelieve any of them The court below came to the conclusion that the Appellants by their own admission in paragraph 20 of the Amended Statement of Claim and from the evidence at the trial they conceded that compensation paid to the respondents for the crops destroyed by DUMEZ, a road Construction Company, that constructed Benin/Auchi/Okene Express Road, was clear acknowledgment by the Appellants of Respondents’ possession or possessory rights.

It is quite clear to me and the court below rightly held that the learned trial judge made his findings on facts based on both oral as well as documentary evidence and these cannot be faulted. In effect, the court below agreed with the findings of the learned trial Judge that the legal and evidential burden of proof placed on the appellants, as plaintiffs, the trial court was not discharged.

I agree with the learned counsel for the Respondents herein that the decision appealed against by the appellant are concurrent findings of fact. The principle of law as stated in so many decisions of this court, notably in AMAYO V. ERINMWINGBOVO (2006) 5 SC 1 at p. 11 per Katsina-Alu JSC as he then was (now CJN) is as follows:

“The attitude of this court where there are concurrent findings of fact by the lower court is that it will not disturb such findings unless they are shown to be perverse.”

See also OLOKO TINTI V. SARUMI (2002) 7 S.C. (Pt.1) P. 152 and (2002) 13 NWLR (Pt.784) 307 at 317; NWORAH V. AFAM AKPUTA (2010) 42 NSCQR 302; ATTAH V. THE STATE (2010) 42 NSCQR 350, and PAN AFRICAN V. SHORELINE LIPEBOATS 42 NSCQR P.25 at 38.

In this appeal, regarding this point, it is clear on the records that the court below at page 444 lines 10 – 15 held that the findings of the learned trial judge could not be faulted. The court was in clear agreement with the findings of the trial court. It becomes its findings. In order to set aside the decision of the court below the Appellants must show that the decision is perverse. This has not been shown in this case. A finding is said to be perverse when it runs counter to the evidence and pleadings or where it has been shown that the trial judge took account of matters which he ought not to have taken into account or shuts his eyes to the obvious or when such finding has occasioned a miscarriage of justice. The findings of the trial court do not in any way run counter to the evidence proffered. The trial court did not take into consideration extraneous matters and there is certainly no miscarriage of justice.

In conclusion, I hold that this appeal is devoid of any merit. It fails. The decision of the trial court and its affirmation by the Court of Appeal is hereby affirmed. The Respondents are entitled to costs against the Appellants which I assess at N50,000.

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SC.63/2004

Wahabi Adejobi & Anor V. The State (2011)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is further appeal against the judgment of the Ibadan Division of the Court of Appeal delivered on the 14th July, 2006 which allowed the appeal against the decision of the trial High Court in part and confirmed the conviction of the 1st Appellant but reduced his sentence of 4 years imprisonment without an option of fine to 2 years imprisonment without an option of fine on both counts to run concurrently. The undisputed facts of this case leading to the judgment of the court below are hereunder set out:

By an information presented on 6/4/2000 by the office of the Director of Public Prosecution Oyo State Ministry of Justice, for leave to prefer charges of conspiracy and stealing, the learned trial Judge, M. O. Adio, J, (as he then was) gave consent pursuant to Section 240(2)(b) of the Criminal Procedure Law, Cap 31, Laws of Oyo State 1978, for preferment of a single charge of stealing against the appellants and another accused, one Sulaimon Adeyemi who later died during the trial at the Oyo State High Court.

By an Order of trial court of 23/04/2001, made pursuant to a Motion On Notice dated 20/04/2001, the Respondent amended the existing charge to include a “Fraudulent False Accounting.” Thereafter the trial commenced and the Respondent called 3 witnesses (PW1, PW2, PW3. The 2nd Appellant gave evidence for herself and called no other witness. After listening to the addresses of the respective counsel, the learned trial Judge, convicted the 1st appellant of the offences of Conspiracy and Stealing. He was sentenced to 4 years imprisonment on each of the counts without an option of fine. The 2nd Appellant gave evidence for herself and called no other witness. After the address of her counsel the learned trial judge convicted her and was sentenced to 4 years without an option of fine.

Dissatisfied with their conviction, the appellants separately filed a Notice of Appeal to the court below. After the exchange of briefs by both parties to the appeal, the appeal was argued. The lower court delivered its judgment on 14/07/2005 in which it unanimously allowed the appeal in part, confirmed the conviction of the Appellants but reduced their sentences to 2 years without an option of fine on both counts, ordered to run concurrently.

Aggrieved with the judgment of the court below the Appellants appealed further to this Court and filed separate Notices of Appeal. Each contained 7 Grounds of Appeal. Parties filed and exchanged their briefs of argument and same were adopted and relied upon at the hearing of this appeal on 07/04/2011.

From the 7 Grounds of Appeal contained on the 1st appellants’ Notice of Appeal the following 2 issues are distilled for the determination of the appeal as follows:

“1. ISSUE ONE

Whether, having regard to the totality of the surrounding facts and the evidence adduced by the prosecution, the conviction of the 1st Appellant of the charge of Conspiracy by the trial court is sustainable as to warrant its affirmation by the court below

(Grounds 1, 2 and 5).

2. ISSUE TWO

Whether the lower court was right in affirming the conviction of the 1st Appellant for the offence of stealing N7,000,000.00 (Seven Million Naira), property of “Trans International Bank, Iwo Road Branch, Ibadan” (a non juristic person) and which the learned trial Judge suo motu altered to be a juristic person and therefore unilaterally amended the charge sheet without due process (Ground 3).”

On her part, from the 7 Grounds of Appeal the 2nd appellant identified 3 issues for determination of the appeal as follows:-

“1. Whether in law the 2nd Appellant was properly convicted on the offence of conspiracy having regard to the totality of the surrounding facts and the evidence adduced when same was not proved beyond reasonable doubt (covers grounds 4, 5 and 7).

2. Whether the lower court was right in affirming the conviction of the 2nd Appellant for the offence of stealing N7,000,000.00 property of “Trans International Bank, Iwo Road Branch, Ibadan” (a non-juristic person) which the learned trial Judge suo motu altered to be a juristic person and therefore unilaterally amended the charge sheet without due process (covers ground 3. In view of the irreconcilable, contradictions and unresolved piece of evidence regarding the actual sum of money allegedly stolen by the 2nd Appellant in this case, whether the lower court was right in affirming his conviction for the offence of stealing N7,000,000.00 when same was not proved beyond reasonable doubt (covers 4, 5 & 7).”

The Respondent filed brief of argument in respect of the 1st Appellant on 16/03/2011 upon an application for extension of time, its learned counsel, submitted the following 2 issues for determination:

“(i) Whether the 1st Appellant could validly raise an objection against the charge of conspiracy after trial and conviction in the circumstances of this case.

(ii) Whether the 1st Appellant was rightly convicted of the offence of stealing a sum of the property of a juristic person”

The Respondent also filed a brief of argument in respect of the 2nd Appellant in Which the two issues raised for determination are similar to the two identified by the Respondent in respect of the 1st Appellant herein above.

This appeal came up for hearing on the 7th day of April, 2011. The counsel for the respective parties identified briefs of argument. The learned counsel for the 1st and 2nd appellants without further amplification on the issues raised by them for determination of the appeal urged this Court to allow the appeal. On his part the Learned Counsel for the Respondent has urged the Court to dismiss the appeal and affirm the judgment of the lower court.

I have noted with keen interest that the 1st and 2nd Appellants have filed similar notices of Appeal each containing seven grounds. It is instructive to further note that their briefs are words for word identical in content and in terms of the arguments proffered in support of the issues raised therein.

This trend is replicated by the Respondents. Hence, it is also noted that the 1st and 2nd Respondents have filed identical briefs raising similar issues for determination.

Now to the issues raised for determination by the parties. It was the submission of the learned counsel for the appellants that the affirmation of the conviction of the appellants by the lower court for the offence of conspiracy was fundamentally erroneous since the said conviction emanated from a charge not before trial court by due process of law. In other words, that the learned trial judge did not give consent as required by law to the Respondent for the preferment of the offence of conspiracy on 23/05/2000 against the Appellants. That it was shown on page 22 of the record that the consent the learned trial judge gave was for the preferment of the offence of stealing only. In other words, until the required statutory leave is granted by the trial court the prosecution of the appellants cannot be said to have been initiated and proper trial held leading to their conviction and sentence. Reliance was placed on OYEDIRAN & ORS. V. THE REPUBLIC (1967). NMLR 122 at P.125; GAJI V. THE STATE (1975) 5 SC 61. OKAFOR V. THE STATE (1976) ANLR 307. At 310; OKORO V. THE POLICE (1953) 14 WACA and EWE V. THE STATE (1992)7 SCNJ 15 at 15 – 18.

Drawing the attention of the court to pages 1 – 21 of the Record of proceedings, learned counsel noted that the Respondent filed an application by way of information for leave to prefer charges of conspiracy and stealing against the 1st Appellant and M. O. ADIO (J) on 23/05/2000 at page 22 gave consent for preferment of a charge of stealing but declined and/or refused to give consent for preferment of the charge of conspiracy. It is therefore submitted that OLAKANMI (J) who took over the trial from ADIO (J) had no jurisdiction whatsoever and or exceeded his jurisdiction by trying, convicting and sentencing the Appellants for the offence of conspiracy which was legally not before him. That since the Respondent did not appeal against the refusal of ADIO (J) to grant the said consent or leave which is within his discretionary power, his decision on 23/05/2000 at page 22 is binding on the learned trial Judge OLAKANMI (J) as such the appellants’ subsequent trial conviction and sentence is ultra vires the powers of the said OLAKANMI (J) and the confirmation of the said conviction by the lower court is wrong, being a nullity ab initio which has occasioned a miscarriage of justice. Cited in support of this submission are ABACHA V. THE STATE (2002) 7 SC (Pt.1) 1 at 10; OWOVORIOLE V. FRN (2003) t SC. (Pt. 1) at 10; and MADUKOLU V. NKEMDILIM (1962) All NLR. (Pt. 2) 581 at 590.

It is contended that the mere fact neither the appellants nor their counsel raise any objection at the trial on their being tried for an offence of conspiracy, (a count which was legally not before the trial court as conceded by both the lower court and the Respondent) does not constitute a waiver of their right to challenge the jurisdiction of the said trial court, as this even can be raised in this Court for the first time without leave since the issue of jurisdiction is sacrosanct and fundamental to adjudication.

Learned counsel for the Appellants arguing in the alternative – submitted that going by the nature and quality of the circumstantial evidence required to sustain a charge of an offence of conspiracy, like in this case, the Respondent at the trial were not all the evidence led by positive, cogent, direct and unequivocal enough to justify the conviction of the Appellants for the offence of conspiracy. It is submitted that neither of the Appellants adopted either words or conduct in their confessional statement made in Exhibits ‘E’ and ‘F’ respectively during the trial and also in their oral testimonies. That both appellants gave a divergent account of how money was withdrawn or spirited out from the account of some customers of the bank for different and unrelated purposes at different dates as comprehensively reviewed by the lower court shown at pp. 150-153 of the Record of proceedings. That both the trial court and Court of Appeal erred in law to have treated Exhibits ‘E’ and ‘F’ as evidence of corroboration against each of the Appellants, the basis upon which they were convicted for the offence of conspiracy, Reliance was placed on the cases of SHODIYA v. STATE (1992) 3 NWLR (PT.230) 457 AT 499; THE STATE v ONYEUKWU (2004) 7 SC (Pt.1) 1 and EMEKA v. STATE (1998) 7 NWLR (559) 555 at 585 and DANLAMI OZAKI & ANOR v. THE STATE (1990) 1 NWLR (PT.124) 92 AT 133.

It is further submitted that the sum of N7,000,000 (Seven Million Naira), which the lower Court found that both Appellants conspired and stole and upheld their conviction was withdrawn with various payment vouchers from the accounts of three customers of the bank who were not called to tender their statements to contradict the confessional statements of the Appellants in Exhibits ‘E’ and ‘F’.

In the alternative, it is submitted by the appellants that in the absence of the evidence of the three customers of the accounts from which the N7,000,000.00 (Seven Million Naira) was allegedly stolen by the Appellants, their conviction for the offence of conspiracy without the slightest corroborative evidence was wrong relying on ISHOLA v THE STATE (1972) 10 SC 53 at 77; OKORO v. STATE (1998) 14 NWLR (pt.584) 181 at 207.

It is further submitted that since neither agreement for common purpose nor common intention, which is the basic element in proof of the offence of conspiracy, was established at the two courts below in relation to the sum of money allegedly stolen by the appellants, conspiring together, and the fact that the 2nd Appellant only admitted being negligent in endorsing the payment vouchers, conviction of the appellants was wrong in law. That it is not permissible to found criminal culpability on mere negligence without more, relying on the cases of AMADI v THE STATE (1993) 8 NWLR (pt.314) 644 at 669; HALSBURY’S LAWS OF ENGLAND VOL.12, 4th Ed. P.81. See also SHODIYA v STATE (supra).

Finally, on this issue relying on the authority of MADUKWE v C.O.P (1987) 1 CLRN 92 at 100, learned counsel submitted that it is undesirable to charge the offence of conspiracy along with a charge of the substantive offence of stealing which the conspiracy is said to have led to, especially where there is no independent evidence of conspiracy.

On this first issue, the learned counsel for the Respondent explained the circumstances leading to the charge of conspiracy against the appellants. That the Respondent before the trial of the Appellants filed a motion on Notice supported by a 10 paragraphed Affidavit and an amended charge all dated 20/4/2011. The motion which was moved on 23/4/2001 was not opposed by the learned counsel, thereupon the learned trial Judge granted the order.

It is submitted that since there was no objection to the granting of that application and no appeal against it, it therefore binds all the parties, relying on ANYADUBA v N. T. R. (1992) 5 NWLR (PT.243) 535. It is submitted that the effect of the amendment is that the old charge of 6/4/2000 has been effectively replaced by the new information preferred on 20/4/2001. That it cannot be validly argued that the trial of the offence of conspiracy was without the consent or direction of the learned trial judge. Reliance was placed on Sections 340 (2)(b) and 346 (3)(b) of the criminal procedure Law cap. 39 of Oyo State, 2000, which provide for the procedure that must be followed to quash a count or information. It is contended that failure to apply to quash the count or information preferred against Appellants at the trial stage renders both the ground of appeal on this point and the issue raised therefrom incompetent.

May it be noted that the Respondent by motion dated 24/4/2001 sought leave of the trial court to amend the existing charge. Alongside the said motion a 10-paragraphed Affidavit and “Amended Charge” dated 20/4/2001 were filed. The motion was moved by Mr. S. O. Adeoye the Senior Legal officer for the complainant (respondent therein). All the three Defence counsel (Mr. Boye Sabanjo for the 1st accused; Mr. S. A. Animashaun, for the 2nd accused; and Mr. T.A. Abdulwahab for the 3rd accused) who were present did not oppose the application. The trial Judge at page 30 of the Records granted the application and ordered accordingly thus:

“Application for amendment of the charge by the prosecution is here by granted without objection from the three counsels for the three accused persons.

It is hereby ordered therefore that is (sic) count of Fraudulent false accounting contrary to section 438 of criminal code Low of Oyo State of Nigeria 1978 be added to the charge. The amended charge as filed now stands as the new charge.

The accused fresh pleas in the circumstances are also hereby to be taken.”

The new charge was read to the 1st and 2nd accused in English while it was read to the 3rd accused (now deceased) in Yoruba. Fresh pleas on the new charge were taken and the appellants pleaded “not guilty.”

The appellants participated actively in the proceedings at the trial court, even after being aware of the amended new charges against them. There was no complaint against the order of the learned trial judge. It is a settled principle of law that a party who has not appealed against the finding or decision of the trial court cannot on further appeal to this court seek the setting aside of such finding or decision. In short, a decision not appealed against binds all the parties: See ANYADUBA and Anor v. NIGERIAN RENOWNED TRADING COMPANY LTD. (NRTC) (1992) 5 NWLR (pt.243) 535 at 553; ONIBU V. AKIBLU (1982) 2 SC 60 at 62-63; FCDA v NAIBI (1990) 3 NWLR (pt.138) 270. It is too late in the day to raise the issue of non-compliance with Sections 340(2)(b) of the criminal Procedure Law cap. 39 Laws of Oyo State 2000 which provides as follows:-

“Subject as hereinafter provided no information charging any person with on indictable offence shall be preferred unless either:

(a)……

(b) The information is preferred by the direction or with the consent of a judge…”

The direction and order given in this case at page 30 by the learned trial Judge clearly set out above fulfilled the requirement of this provision. It cannot be correctly and reasonably argued that the trial of the appellants for the offence of conspiracy was conducted without the consent or direction of the judge.

As it has been said, it is now too late in the day to raise the issue of non-compliance with the provision of Section 340(2)(b) of the Criminal Procedure Law Cap. 39 Laws of Oyo State 2000, that provides as follows:

“Where a person who has been committed for trial is convicted on any information or any count of information that information or count shall not be quashed under this section in any proceedings on appeal unless application was made at the trial that it should be so quashed.”

Simply put, the lower court has no jurisdiction to quash any information or count unless there has been an application to quash it at the trial court. It is trite that a question of law and jurisdiction can be raised at any time in the proceedings, but it is not a free for all procedure. Where a statute under which an issue or matter is to be raised, has provided a procedure for raising such issues or matter, that procedure, and no other must be followed See AKAAER JOY V. KUTUKU DOM (1999) 9 NWLR (Pt.620) 538 at 547.

In the case at hand the procedure that must be followed to quash the information or count is as provided under the provision set out above. Failure to apply to quash it at the trial court renders both the grounds of appeal on this point and the issue raised thereon incompetent and I so hold and resolve this issue in favour of the Respondent.

Issue No. 2 is distilled from Ground 3 of the Appellants Notice of Appeal. The pith and substance of this issues is that the ‘TRANS INTERNATIONAL BANK two ROAD BRANCH IBADAN as contained in the charge sheet at pages 1 -2 and 27-29 of the Record of Proceedings from which the sum of N7,000,000 (Seven Million Naira) was allegedly stolen by the Appellants is not a juristic person known to law in accordance with the provision of Section 382 of the Criminal Cap.38, Laws of the Federation of Nigeria 2004. It is submitted that from the provision of this law, ownership of a thing capable of being stolen like the Seven Million Naira, in the case, it is a vital ingredient of the offence of stealing which has not been established by the prosecution during trial of the Appellants. In other words the Appellants are contending that since the identity of the owner of Seven Million Naira allegedly stolen is not established by the 3 prosecution witnesses, it was not just to base their conviction on that. The sum total of the submission of the Appellants is that their conviction and sentencing for the offence of stealing Seven Million Naira, the property of a non-juristic person, is fundamentally a travesty of justice and failure to afford the Appellants an opportunity to plea to amended charge is a violation of their constitutional right of hearing as provided in section 36 of the 1999 Constitution, thereby occasioning a miscarriage of justice regardless of the fact that the Appellants did not raise this fundamental issue at the trial court. Relying on the cases of ONYIA v. ONYIA (1980) 1 N.W.L.R. (Pt.99) 514, AT 540; ATTORNEY GENERAL OYO STATE v. FAIRLAKES HOTELS LTD (1988) 5 N.W.L.R (Pt.92) at 59; NDIC v. CBN (2002) 7 N.W.L.R (pt.766) 272 at 293 – 294 and OKORO V. THE STATE (1998) 12 S.C. (pt.11) 83 at 89.

It is the contention of the respondent that both the trial court and the lower court were right in convicting the Appellants for the offence of stealing the sum of Seven Million Naira property of Trans International Bank a juristic person with legal personality. That the bank is a public quoted company registered not only under the company and Allied Matters Act (CAMA) but also with the Nigerian Stock Exchange. That it has capacity to sue and be sued. Relying on the cases of GANI FAWEHINMI v. N.B.A. (1999) 2 N.W.L.R. (part 105) 558 at 595, and ONAGORUWA v. STATE (1993) 7 N.W.L.R. (pt.303) 49 at 86.

It is further observed that the sum of Seven Million Naira established by the prosecution to have been stolen through Exhibit “H” at the trial court was the property of a juristic personality, which held the said amount of money in trust for its diverse depositors. As for the failure on the part of the Respondent to add the word “plc” to the name of the Bank it is observed that the fact that the Respondent did not add that word to the name of the Bank that will not diminish the fact that the Bank is a Public Liability Company.

It is submitted that from evidence led at the trial court the Respondent was able to prove beyond reasonable doubt, contrary to the impression created in the 2nd Appellants’ briefs that the three essential elements of the offence of stealing have not been proved.

It is further submitted that the fact that, at the trial court the respondent did not call the customers whose accounts the 2nd Appellants claimed that they used to defraud their employer is immaterial and neither is it fatal to the case of the Respondent. That it has called the number of witnesses required to prove its case. What is more, there the so called customers’ accounts were part and parcel of the account of the Bank and the money belonged to the Bank. It is observed that the 2nd Appellant in Exhibit ‘F’ admitted that she approached the 1st Appellant; whom she supervised, for assistance and collected the sum of N900,000.00 from him as loan to give to her friend that needed help.

That the manager of that Branch was not aware of the transaction which was carried out unofficially and therefore not documented. It is submitted that the fact that the Appellants resiled from their statement in their defence at the trial will not make it less a confessional statement. That it is trite that free and voluntary confession, if it is direct and positive and satisfactorily proved is sufficient to warrant conviction without any corroborative evidence as long as the court is satisfied of the truth of the confession. Relying on ASANYA v. STATE (1991) 3 N.W.L.R. (pt. 180) 422 at 467 and AKPAN v. STATE (1992) 6 N.W.L.R. (pt.248) 444 at 445. It is observed that the trial court, in this case found corroboration.

It is however submitted that the confessional statement of the 1st Appellant was not used to convict the 2nd Appellant as the latter in Exhibit ‘F’ stated her involvement in the fraud to be N900,000.00. That each of the Appellants in Exhibits ‘E’ and ‘F’ stated his and her leave of involvement in the fraud. As for the contention of the learned counsel for the Appellants that the 2nd Appellant was only negligent in not cross-checking the vouchers submitted or her by the 1st Appellant, therefore she ought not to have been convicted of the offence of conspiracy and stealing, citing EMEKA v. STATE 7 N.W.L.R. (pt.559) 556. Learned counsel for the Respondent observes that the content of Exhibit ‘F’ shows an agreement to steal and not negligence. That the case of EMEKA v. STATE (supra) is not binding on this court, and should be discountenanced.

Finally it is submitted that from the totality of the evidence led at the trial court, by the prosecution, it has been proved beyond all reasonable doubt that the Appellants conspired to steal and did steal from the vault of their employer, that is, Trans International Bank Plc. Concluding further, the learned counsel for the Respondent has submitted that there are concurrent findings of the Courts below that the prosecution prove its case. That where there are concurrent findings of the lower courts, the Supreme Court will not disturb such findings unless they were perverse. Citing BAKARE v. STATE (1997) 1 N.W.L.R. (pt. 52) 597; OVERSEAS CONSTRUCTION LTD v. GREEK ENTERPRISES LTD (1985) 3 N.W.L.R. (pt.13) 407; ONYEJEKWE v. STATE (1992) 8 N.W.L.R. (pt.230) 444 at 447. It is accordingly urged that this appeal be dismissed for lacking in merit.

Issue No. 2 under consideration is distilled from Ground 3 common to both Appellants. It is whether the Appellants were rightly convicted of the offence of stealing a sum the property of juristic person.

The said Ground and its particulars are set out below:

GROUND:

“The learned Justices of the court of Appeal erred in law when they held as follows:-

“On the charge of stealing itself, the Appellants canvassed what I will dismiss off hand as a non-issue, it is their contention that despite the fact that the prosecution described the owner of the alleged N7,000,000.00 as “Trans International Bank plc, Iwo Road, Ibadan” which in law represents a non juristic person, and the fact that P.W,I did not say that the money belonged to Trans International Bank Plc, the lower court still convicted the Appellants for stealing and further erred by “Suo muto adding plc” to the names of the alleged owner of the money…

In my view, the Appellants are grasping at straws. The fact that “Plc” was not added to Trans International Bank is immaterial.”

PARTICULARS

(i) Statutorily, Sec. 390 of the criminal code cap 80 laws of the Federation of Nigeria 1990 envisages stealing of property belonging to a natural or artificial person with juristic personality.

(ii) The charge of stealing N7,000,000.00 property of ‘Trans International Bank, Iwo Road Branch, by the 2nd Appellant violates the statutory provision of Sec. 390 of the said criminal code.

(iii) Trans International Bank Iwo Road Branch, Ibadan per se is not a juristic person known to law.

(iv) It was not shown to court by evidence that Trans International Bank Iwo Road Branch, Ibadan is the same as T.I.B. Plc.

(v) The learned trial Judge suo motu added “Plc” to the charge in order to clothe the bank with juristic personality and found the accused persons guilty of the offences of conspiracy and stealing.

(vi) The addition of “Plc” to the name of the artificial person in court amounted to an unsolicited amendment of the charge sheet without complying with the mandatory provisions of the criminal Procedure Act.

(vii) Even if evidence reveals that T.I.B. Plc was involved, the trial Judge ought to invite addresses from both the prosecution and the defence before effecting any amendment.

The Respondent has rightly contended that both the trial court and the lower court were right in convicting the 1st Appellant of the offence of stealing the sum of N7,000,000.00 (Seven Million naira), the property of juristic person. It is not in dispute that Trans International Bank Plc is a juristic person with legal personality. It is a public quoted company registered not only under the Company and Allied Matters Act (CAMA) 1990 but also with the Nigerian Stock Exchange. As such the Bank can sue and be sued in its corporate name, ownership, no doubt, is a most vital and indispensable essential ingredient of the offence of stealing. There must be evidence that the property is owned by a person. That person could be known or unknown but the property must be owned or capable of being owned. See ONAGORUWA v. STATE (Supra). In the case at hand prosecution has established that the sum of Seven Million Naira stolen through Exhibit ‘H’ was property of a juristic person, the Bank, holding the said sum in trust for its diverse customers or depositors. Heavy weather was made of the fact that since the Respondent did not add “plc” to “Trans International Bank” in the information the Bank is not a juristic personality which property can be stolen. To me this reasoning is puerile. The fact that the Respondent did not add the word “Plc” to Trans International Bank will not diminish the fact that the Bank is a Public Liability company and indeed a juristic personality. Its property was stolen by the Appellants. The learned trial judge summing up the whole matter stated as follows:

“From the available evidence in this case, one fact is not in doubt whatsoever, i.e. there was a fraud in the nature of stealing of money at the Iwo Rood Branch of Trans International Bank Plc between the months of June and October, 1999. The requirements for proving a charge of stealing, I consider too trite to necessitate stating some here in this case. It suffices to state that the charge of stealing is proved once evidence is available pointing to the existence of o stolen property belonging to any person be he natural or artificial and that another person stole same against interest of the owner.”

On page 155 of the Record of Proceedings, the court below also made similar crucial findings as follows:-

“The Respondent is right. In my view, the Appellants are grasping at straws; the fact that “Plc” was not added to Trans International Bank is immaterial. Every case is determined on its own merit, and in this case, the owner of the stolen money is the said Bank, the Appellants were staff of the Bank, and they admitted that they took money from the Bank in on unlawful manner. The mens rea of stealing consists of an intention not only to take away the movable property in question from the possession of the owner but also on intention to permanently deprive him of such property – See Babalola v. The State (1989) 4 NWLR (pt.115) 254 SC.”

From the evidence led at the trial, the Respondent was able to prove beyond reasonable doubt, contrary to the impression created by the Appellants in their brief, that the essential ingredients of the offence of stealing were not established.

The lower courts were on firm ground when they held that the pieces of evidence adduced by the prosecution established the guilt of the Appellants. At page 93 lines 10 – 13 of the Record of Proceedings the learned trial court held as follows:

“I wonder what further evidence is required for proof of the prosecution. Both oral and documentary evidence in this case are quite overwhelming and compelling that this court has no alternative but to find both accused guilty of stealing as charged under count 2. After all the court can convict on the voluntary confession of an accused. See Akinmeju v. The State (200) SCNLR. (pt.1) 90 at 778.

In this case the 1st Appellant voluntarily confessed that he took the sum of N2,991,368.50k from the vault of Trans International Bank which he shared out to himself and others. The 2nd Appellant, who was the Branch Accountant, also confessed that she took N900,000.00 from the Bank unofficially to give a friend in need. The money she took was not documented, the Branch Manager was not aware of this. Both Appellants could not justify their conduct and action which is illegally motivated.

The fact that, at the trial, the respondent did not call the customers whose accounts the appellants claimed that they used to defraud their employer is immaterial. It is not fatal to the Respondent’s case.It is left to the prosecution to call the number of witnesses required to prove its case: See ABOGEDE v. STATE (1995) 37 LRCN 674 and GIRA v. STATE (1996) 37 LRCN 668.

The Appellants have contended that the prosecution did not prove its case beyond reasonable doubt that it was the 1st Appellant that stole the sum of N7,388,602.00. The lower court on this issue held as follows:

“In this case the 1st Appellant confessed that he took N2,997,368. From the bank illegally, and the 2nd Appellant admitted he took N900,000.00. What is left to be resolved is whether the lower court could convict the Appellant for stealing these amounts instead of N7,000,000.00 (Seven Million Naira) charged. The Appellants have argued that it cannot, citing Onogoruwa v. State (Supra). The Supreme Court however, held as follows in Atano v. A.G. Bendel (1988) 2 NWLR (pt. 75) 210 at 224.” It is noteworthy that although the Court of Appeal acquitted the Appellants on the account of stealing yet it found that the Appellants stole a large sum of money. I cannot see the true or proper basis for acquittal or discharge of the Appellants by the Court of Appeal on the count of stealing. Even if it is only established that the prosecution proved that the Appellants stole part of the money alleged to have been stolen by them …. It is trite law that it is unnecessary for the prosecution to prove that all the articles mentioned in the information have been stolen for the charge to be sustained if proved that some of the articles have been stolen.”

There are concurrent findings of the courts below that the prosecution proved beyond reasonable doubt that the Appellants conspired together with others to steal and did steal from the vault of their employer. It is now settled that where there are concurrent findings of two lower courts, this Court will not disturb such findings unless the findings were perverse. The Appellants have not shown to this Court any good reasons why the concurrent findings of the trial court and, the court below must be disturbed by this court.

In the light of all I have said I hold that this appeal be dismissed and it is accordingly so dismissed for lacking in merit. I affirm the judgment of the lower court delivered on 14/7/2006.

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SC.26/2008

Alhaji Kashim Shettima & Anor V. Alhaji Mohammed Goni & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C

Appeal Nos. SC/332/2011 and SC/333/2011 are against the ruling of the Court of Appeal, Holden at Jos delivered on the 19th day of September, 2011 in appeal No. CA/J/EPT/GOV/151/2011 staying the ruling and proceedings of the Borno state Governorship Election Tribunal while No SC/352/2011 is against the decision of the said lower court delivered on the 26th day of September, 2011 in which the court adjourned the appeal pending before it sine die following the entry of appeal Nos. SC/332/2011 and SC/333/2011 at the Supreme Court of Nigeria.

The appellants in SC/352/2011 are the petitioners before the Borno state Governorship Election Tribunal, Holden at Maiduguri, in petition No.BO/EPT/GOV/1/11 filed on the 17th day of May, 2011 challenging the return of the 1st, 2nd and 3rd respondents in SC/352/2011 who are also the appellants on SC/332/2011 and SC/333/2011 respectively.

Due to serious security challenges the venue of the tribunal was relocated to Abuja from Manduguri in Borno state.

At the conclusion of pleadings the 1st – 3rd respondents in SC/332/2011 filed a motion Ex-Parte on the 29th day of June, 2011 at the Tribunal seeking the issuance of Pre-Hearing Notice and Pre-Hearing Information Sheets pursuant to paragraph 18(1) and (2) of the 1st schedule to the Electoral Act, 2010 (as amended) and order 26 Rule 8 of the Federal High Court (Civil Procedure) Rules, 2009. The issue was raised as to whether the application ought to have been made by Motion on Notice instead of the Motion Ex-Parte.

In a considered ruling on the 10th day of August, 2011 the tribunal struck out the Ex-Parte motion for failure to comply with the provisions of paragraph 47(2) of the 1st schedule to the Electoral Act, 2010 (as amended) which provisions the tribunal considered mandatory.

The 1st – 3rd respondents were aggrieved by the ruling and consequently appealed against same on 12th August, 2011 and, in addition filed a motion on Notice on 11th August, 2011 for extension of time within which to apply for Pre-hearing Notice.

The appellant and 4th and 5th respondents in SC/332/2011 filed processes at the Tribunal seeking a dismissal of the petition on the ground that same be/is deemed abandoned for failure of 1st – 3rd respondents to file their application for Pre-Hearing Notice in compliance with paragraph 18(1) of the 1st schedule to the Electoral Act, 2010 (as amended) and the ruling thereon was adjourned to 20th September, 2011 after arguments on 2nd August, 2011.

Meanwhile the appeal filed by the 1st – 3rd respondents challenging the decision of the Tribunal on the Ex-parte application was rescheduled for 19th September, 2011 from 21st September, 2011.

On the 19th day of September, 2011 learned senior counsel for the 1st – 3rd respondents who are also appellants in SC/352/2011 informed the lower court that there was a pending ruling in applications to dismiss the petition adjourned to 20th September, 2011 and urged the court to invoke its powers under section 15 of the court of Appeal Act, 2004 to protect/preserve its jurisdiction to hear and determine the appeal, which application was opposed by the other parties including the appellant in SC/332/2011. The lower court acceded to the request of senior counsel for the 1st – 3rd respondents and made an interim order arresting or staying the delivery of the pending ruling of the Tribunal scheduled for 20th September, 2011. Appeal Nos. SC/332/2011 and SC/338/2011 are against that ruling. Following the appeal against the ruling of 19th September, 2011, the appellants also filed an application for stay of the proceedings of the lower court pending the determination of the appeals before this court.

On the 26th day of September, 2011 when appeal No. CA/J/EPT/GOV/151/2011 came up for hearing at the lower court, learned senior counsel for the respondents therein objected to the hearing of the appeal on the grounds, inter alia, that appeal Nos. SC/332/2011 and SC/333/2011 had been entered at the Supreme Court etc as a result of which the lower court adjourned the appeal sine die.

Appeal No. SC/352/2011 is challenging the decision of the lower court in so adjourning the appeal sine die.

A common issue therefore links the two set of appeals which issue is whether the lower court has the power or jurisdiction to arrest a ruling/stay proceedings/adjourn proceedings sine die in an election matter having regards to the state of the law and nature of election matters. At the hearing of the appeals on the 24th day of October, 2011 this court consolidated the three appeals upon application by both counsel and heard same accordingly after which they were adjourned to today, 31st October, 2011 for judgment.

The issues for determination in SC/332/2011, as formulated by leading learned senior counsel for the appellants, YUSUF ALI ESQ, SAN in the appellants brief filed on 12th day of October, 2011 are as follows:-

“1. Whether having regard to the mandatory provisions of section 142 of the Electoral Act, 2010 (as amended) and paragraph 18 of the Election Tribunal and Court practices Directions 2011, the court below was right or possess the vires to have granted an interim order against the Tribunal from delivering its ruling stated for the 20th day of September, 2011.

2. Whether the court of Appeal was right to have granted the interim order the effect of which is to arrest the ruling of the Tribunal especially when the appeal before it was not ripe for hearing” On his part learned senior counsel for the 1st – 3d respondents in SC/332/2011, CHIEF JOE-KYARI GADZAMA, SAN, in the 1st -3rd respondents brief deemed filed and served on 24th October ,2011 formulated a single issue for determination, to wit:-

“Whether paragraph 18 of the Election Tribunal and Court practice Directions 2011 supersedes the provisions of sections 6(6)(a), 24(6)(i) (b) (i):(ii),(iii), (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria and section 15 of the court of Appeal Act, 2004”.

Learned senior counsel for 4th respondent DR ALEX A. IZINYON, SAN adopted the two issues formulated by the appellants in his brief filed on 21st October, 2011.

It should be noted that 5th respondent filed no brief of argument but urged the court, during oral arguments, to allow the appeal. The fight is therefore between appellants and 1st – 3rd respondents.

However, the issues formulated on behalf of the contending parties are so different as to make one wonder whether they really arise from the grounds of appeal filed in the appeal before us.

The amended grounds of appeal filed on 4th October, 2011 are as follows:-

“GROUND 1.

The learned justices of the Court of Appeal erred in law and acted without jurisdiction in granting an interim order stopping the trial tribunal from proceeding to deliver its ruling on 20th September, 2011 contrary to the mandatory provisions of paragraph 18 of the Election tribunal and Court Practice Direction 2011, made by the President of the Court of Appeal for the regulation of proceedings before the trial tribunal.

PARTICULARS.

1. The practice direction forbids the granting of a stay of proceedings in an interlocutory appeal, from stopping the work of the tribunal.
2. The provisions of paragraph 18 were couched in mandatory language.
3. The order made by the court below was a nullity having regards to the provisions of the law.

GROUND 2.

The learned Justices of Court of Appeal erred in law and acted in excess of jurisdiction and against the spirit and intendment of the Electoral Act, 2010 (as amended) when it granted an interim order directing (sic) the trial tribunal from delivering of its ruing of 20th September, 2011.

PARTICULARS.

Section 142 of the Electoral Act, 2010 (as amended) mandatorily requires all court (sic) dealing with election matters to give it precedence over all other matters. The said section also mandatorily requires accelerated hearing of election cases.

3. The order of the court below was a clear antithesis of the provisions of Section 142 of the Electoral Act, 2010 (as amended).

GROUND 3

The court below erred in law by granting an interim order to stop the trial tribunal from delivering its ruling, which order was made per incuriam having regard to the provisions of Section 142 of the Electoral Act (as amended) and paragraph 1B of the Election tribunal court Practice Direction 2011.

PARTICULARS.

1. The order of the court below was made in ignorance of the mandatory provisions of the Electoral Act, 2010 (as amended).
2. The court below did not advert its mind to the mandatory provisions of the Electoral Act, 2010 (as amended) and the Practice Direction, in making the order.

GROUND 4.

The Learned Justices of the court below erred in law in granting an interim order against the trial tribunal from delivering its ruling on 20th September, 2011, which amounted to an arrest of the said ruling, thereby promoting a procedure that is alien to the Nigeria jurisprudence.

PARTICULARS.

1. The procedure for the arrest of judgment is unknown under the Nigerian law.
2. There are the highest judicial authorities of the apex court disavowing any procedure that amounts to the arrest of the judgment or ruling of a court.
3. The order of the court below flew in the face of the settled position of our law as espoused by the decision of the Supreme Court.
4. The order led to a grave miscarriage of justice.

GROUND 5

Learned Justices of the court below misdirected themselves in granting an interim order in stopping the trial tribunal from delivering its ruling on 20th September, 2011, on the assumption that the appeal before it was ripe for hearing when factually this was not so from the record. PARTICULARS.

1. The court below has a legal duty to consult its record in determining whether an appeal is ripe for hearing or not, based on the processes filed.
2. On 19th September, 2011, when the appeal was called up for hearing, all the briefs had not been filed nor exchanged between the parties.
3. The Appellants herein had a pending motion for extension of time and leave to file Respondents Notice and Brief of Argument thereon
4. The Appellants equally had a pending motion to file Respondents Brief.
5. These motions were extant and had not been heard.
6. In granting the order, the court below, with respect, put the cart before the horse”.

It is very obvious that the sole issue formulated by learned senior counsel for the 1st – 3rd respondents and reproduced supra does not arise from the amended grounds of appeal filed by the appellants and also reproduced supra. However, in deciding the appeals arguments of learned senior counsel for the 1st – 3rd respondents relevant to the issue(s) in contention will be taken into account even though the sole issue, as formulated by him, is hereby discountenanced for not arising from the grounds of appeal, and therefore incompetent.

It is settled law that grounds of appeal must attack or complain about the ratio in the judgment on appeal while issue(s) is/are formulated from the grounds of appeal, so filed and that any issue for determination not arising from the grounds of appeal is deemed incompetent and liable to be struck out.

The only other way the said sole issue could be taken into account in the determination of the appeal is if 1st- 3rd respondents had filed an appeal or cross appeal or a respondent’s notice in which the constitutionality etc of the provisions in question are challenged in the grounds of appeal as it is settled law that an issue before an appellate court must arise from the grounds of appeal else it is incompetent and liable to be struck out; see Management Enterprises Ltd vs Ofusanya (1987) 2 NWLR(Pt.55) 179; Oniah vs Onyia (1989) 1 NWLR (Pt. 99) 514 at 529; Adelaja vs Fanoiki (1990) 2 NWLR (Pt. 131) 137 at 148; Tinubu vs I.M.B securities Plc (2000) FWLR (Pt. 77) 1002 at 1023 – 1024.

Have the 1st – 3rd respondents filed any appeal/cross appeal or respondent notice against the decision of the lower court delivered on 19th September, 2011 I have gone through the record and seen nothing of the sort. The conclusion is therefore clear, that the sole issue does not arise from the grounds of appeal filed by appellants neither have 1st – 3rd respondents raised any grounds of appeal/cross appeal or respondent notice from which the said issue could be traced. Either way, the issue is incompetent and liable to be struck out.

Dr. Alex A Izinyon, SAN formulated a single issue for determination in the appellant brief filed on 12th October, 2011, to wit:

” Whether the learned Justices of the Court of Appeal have the jurisdiction to halt/stay the proceedings of the Borno State Governorship Election Tribunal in BO/EPT/GOV/l/11 having regards to the provisions of Section 18 of the Election Tribunal and Court Practice Directions, 2011 and Section 285 (5)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)”

The above issue is adopted by learned senior counsel for 4th and 5th respondents therein Yusuf Ali Esq, SAN in the 4th and 5th respondents’ brief filed on 21st October, 2011.

On the other hand, senior counsel for the 1st and 2nd respondents formulated the same issue he raised in SC/332/2011 earlier reproduced in this judgment and is caught by the settled principles of law on formulation of issues for determination in the appellate courts and is consequently subject to the same treatment metted out in SC/332/2011.

The 4th respondent filed no brief of argument but urged the court to allow the appeal during oral arguments. In respect of SC/352/2011, the sole issue formulated for determination in the appellant brief filed on 11th October, 2011 by Chief Joe-Kyari Gadzama, SAN is as follows:-

“Whether the refusal by the learned justices of the court below to hear this Appeal No. CNJ/EPT/GOV/151/2011 on the ground that Appeal Nos. SC/332/2011 and SC/333/2011 have been entered in the Supreme Court is not in breach of the Appellants’ right to fair hearing and thereby unjustified in law”.

It is, however, the view of senior counsel for 1st and 2nd respondents, Yusuf Ali Esq, SAN, that the issue calling for determination in the appeal is:-

” Whether the court below was not right to have adjourned appeal No. CA/J/EPT/GOV/15/2011 sine die having regard to the entry of appeal Nos.SC/332/2011 and SC/333/2011 at the Supreme Court with the motions for stay of proceedings of the court below before the Supreme Court, and having regard to the principle of stare decisis and judicial precedent, the facts and general circumstances of this case”.

I must state that the above issue goes far beyond the grounds of appeal in the appeal. There is no appeal or cross appeal or respondent notice by the 1st and 2nd respondents to ground the wide issue so formulated. I will, therefore, in the consideration of the appeal prune or limit the issue to only the essential elements relevant to the determination of the appeal and discountenance all else.

From the reproduced issues in the appeals above, it is clear that the issues in SC/332/2011 and SC/333/2011 are similar as the appeals relate to the ruling of 19th September, 2011 and can therefore be conveniently treated together. I intend to so treat them herein below.

In arguing the issues, learned senior counsel for the appellants in sc/332/2011 submitted, in respect of issue 1, that the lower court acted not only in error but in excess of jurisdiction and contrary to the provisions of Section 142 of the Electoral Act, 2010 (as amended) and paragraph 18 of the Election Tribunal and Court Practice Directions, 2011 when it made the order of 19th September, 2011. Senior counsel then proceeded to reproduce the provisions of Section 142 of the Electoral Act, 2010 and paragraph 18 of the Practice Direction, 2011 and submitted that since the provisions are unambiguous, they be given their ordinary meaning; relying on Nwanere vs Idris (1993) NWLR (Pt. 279) 1 at 14 and NIDB vs Unisteel works Ltd (1995) 3 NWLR (Pt. 356) 696 at 699; that it is clear from the above provisions that the proceedings of a trial tribunal cannot be stalled, stultified or slowed down under any circumstance; that the two provisions are mandatory as the word “shall” is used therein, relying on Nnovo vs Anichie (2005) 2 NWLR (Pt. 910) 263; that time is of the essence in an election matter/proceeding.

It is the further submission of learned senior counsel that arrest of judgment or ruling is unknown to our laws, relying on Newswatch Communications vs Attah (2006) 12 NWLR (Pt.993) 144 or (2006) ALL FWLR (Pt. 318) 580 at 581 and that the lower court was in error when it failed/refused to follow the above decision of this court which was cited and relied upon in opposing the application.

Finally, senior counsel urged the court to resolve the issue in favour of the appellants.

In respect of SC/333/2011, it is the submission of learned counsel for the appellant that the lower court is without jurisdiction in granting the relief complained of, relying on the provisions of section 285(5)(b) of the 1999 constitution (as amended) and paragraph 18 of the practice Direction 2011. It is the submission of senior counsel that the word “within” as used in section 285(5)(b) of the 1999 constitution (as amended) admits of no extension of time beyond the 180 days allotted; that the said section 285 (5)(b) therefore does not contemplate stay of proceedings of an election matter, and urged the court to resolve the issue in favour of the appellant and allow the appeal.

It is the submission of senior counsel for the 1st – 3rd respondents in SC/332/2011 and 1st and 2nd respondents in SC/333/2011 that the lower court has jurisdiction to entertain electoral matters vide the provisions of section 246(1) (b)(i),(ii),(iii) and (2) and (3) of the 1999 constitution and that the powers of the lower court to make orders such as stay of proceedings, execution etc is an inherent power donated by section 6(b) (a) of the 1999 constitution in the interest of justice and to preserve the jurisdiction of the court, relying also on Section 15 of the Court of Appeal Act and La sun v. Awoyemi (2009) 16 NWLR (pt.1168) 513 at 525; that the powers vested on the lower court cannot be inhibited by any subsidiary legislation; that the lower court did not stay proceedings but ordered that the ruling on the dismissal of the petition should abide the appeal; that the lower court did not arrest the judgment/ruling of the trial tribunal as such the case of Newswatch Communications vs Attah supra does not apply and urged the court to dismiss the appeal.

It should be noted that both senior counsel for the appellants in SC/332/2011 and SC/333/2011 filed reply briefs which in effect reinforced the arguments/submission in the main briefs of argument and earlier summarized in this judgment.

It is not disputed that the appeal pending before the lower court and in which the controversial order complained of was made on 19th September, 2011 was an interlocutory appeal filed by appellants in SC/352/2011, who are also, the 1st and 2nd respondents in SC/332/2001. Also not disputed is the fact that the appeal was or arose from an election matter pending before an election tribunal.

By the provisions of section 285(5)(b) of the constitution of the Federal Republic of Nigeria 1999 (as amended/altered) (herein-after referred to as the 1999 constitution as amended/altered).

“An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition”.

In section 142 of the Electoral Act, 2010 (as amended), the National Assembly enacts that:

“Without prejudice to the provisions of Section 294 (1) of the Constitution of the Federal republic of Nigeria, an election petition and an appeal arising therefrom under this Act shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or the court’.

The third and final provisions relevant to the determination of the issue and also relied upon by the appellants is paragraph 18(1) of the Election Tribunal and Court Practice Directions, 2011 which Provides thus:-

” An interlocutory appeal shall not operate as a stay of proceedings, nor form a ground for a stay of proceedings before a Tribunal”.

It is my considered view that the three provisions quoted supra are clear and unambiguous and by the principles of interpretation of statute, to the effect that where the words of any statute are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the constitution or statute, effect must be given to those provisions without recourse to any other consideration, they ought to be so treated.

By the ordinary meaning of the words used in the provisions supra, it is clear that:-

i. An election tribunal must, of necessity deliver its judgment/decision in writing in an election petition within 180 days from the date of the filing of the petition

ii. An election petition and an appeal arising therefrom must be given accelerated hearing and must take precedence over all other cases or matters before the tribunal or court.

iii. An interlocutory appeal shall not operate as a stay of proceedings nor shall it form a ground for stay of proceedings before a tribunal.

All the above provisions emphasize the essential nature of an election matter either at trial or on appeal which is that it is an urgent matter.

The urgency involved in election matters advised the National Assembly to fix a time limit of 180 days in Section 285(5)(b) of the 1999 Constitution (as amended) while Section 142 of the Electoral Act, 2010 (as amended) grant automatic accelerated hearing to election petition and/or appeal arising therefrom to the extent that such matters take precedence over all other cases and matters, including criminal matters.

The importance of time being of the essence in election matters is further emphasized by paragraph 18(1) of the Practice Direction, 2011, supra, which forbids the use of interlocutory appeal as a ground for stay of proceedings before a tribunal.

I hold the considered view that the above provisions are mandatory and not permissive as they admit of no discretion and the sooner both the Bar and Bench realize this and comply to the spirit and letter of the provisions the better for this nation’s democracy.

Having regards to what I have stated above, can it be said, in relation to the issue under consideration, that the lower court or any other court for that matter, has the requite vires to order a stay of proceedings or arrest delivery of a ruling of an election tribunal which has time limit within which to conclude its proceedings and has been granted accelerated hearing

It has been argued by learned senior counsel for the 1st – 3rd respondents in SC/332/2011 that what the lower court did on 19th September, 2011 did not amount to an arrest of the ruling of the tribunal. With due respect to the learned senior counsel I do not agree. The submission seeks to establish the difference between half a dozen and six which amounts to a distinction without a difference. The lower court, in its ruling at page 409 of the record ordered, inter alia, as follows:-

” Accordingly, I hereby enter an interim order….directing that the said ruling of the tribunal should abide by the hearing of the appeal”.

Whatever term one likes to use in describing the above order its effect on the trial tribunal concerned is to STOP it from delivering the ruling in an application seeking a dismissal of the petition before it. The order definitely was not designed nor intended nor did it give an accelerated hearing of the petition so as to enable the tribunal deliver its judgment/decision within 180 days of the filing of the petition as constitutionally enjoined. In fact the order is clearly in collision course with the provisions of paragraph 18 (1) of the Practice Directions, 2011 as it stopped any further proceedings in the matter by the trial tribunal until the determination of an appeal which was yet to be ripe for hearing in an election matter where time is of the essence. Apart from the peculiar nature of the proceedings giving rise to the appeal, generally speaking and by the decision of this court in Newswatch Communications Ltd vs Attah (supra) the rules of court have no provision for arrest of judgments about to be delivered by a court. There is however an exception to that general rule as can be gleaned from the decision of this court in the case of Dingyadi vs INEC (No.1) (2010) 18 NWLR (Pt.1224) 1; (2010) 4 – 7SC (pt.1) 76 where the Sokoto Division of the court of Appeal sitting on appeal in an election matter was stopped, by this court, from delivering a judgment in an appeal arising from election petition filed in abuse of process as it is the duty of every court to prevent abuse of its process or the process of the court.

In short, I resolve the issue in favour of the appellants in SC/332/2011 and SC/333/2011.

On the 2nd issue of the appellants in SC/332/2011, I am of the view that it has become irrelevant having regards to the resolution of issue 1. If the court has no vires or right under the law, having regards to the provisions of the Constitution, Act, and Statutory instrument relied upon in issue No.1 to have done what it did, then it would remain without vires or right to do so whether the appeal before it and on which the order is predicated is ripe for hearing or not as the ripeness or otherwise of the appeal will not improve its lack of jurisdiction or vires in the first place.

Secondly, it is obvious that a resolution of issue 1 has effectively disposed of the appeal thereby rendering the second issue of no moment or superfluous.

In conclusion I hold as follows:-

(i) That appeal No.SC/332/2011 is meritorious and is hereby allowed by me. It is hereby ordered that parties bear their costs.

(ii) That appeal No.SC/333/2011 be and is hereby allowed by me with parties to bear their costs.

Turning now to appeal No. SC/352/2011, it is the submission of learned counsel for the appellants that appeal Nos. SC/332/2011 and SC/333/2011, challenged the jurisdiction of the lower court to make the order of 19th September, 2011 directing that the ruling of the trial tribunal abides the hearing and determination of the appeal before it and therefore the entry of the said appeals before this court cannot be a ground for stay of the proceedings of the lower court under order 8 Rule 11 of the Supreme Court Rules.

Learned senior counsel then proceeded to reproduce the provisions of Section 285 (6) and (7) of the 1999 Constitution and Order 8 Rule 11 of the Supreme Court Rules and submitted that it is not in all cases that the entry of an interlocutory appeal to an appellate court will rob the lower court of jurisdiction to continue with the substantive proceedings; that the grounds of appeal in Nos SC/332/2011 and SC/333/2011 have no bearing on appeal No. CA/J/EPT/GOV/151/2011 and their success would not affect the rights or remedies in CA/J/EPT/GOV/15/2011 and that the entry of appeal Nos. SC/332/2011 and SC/333/2011 is not a valid ground to decline to hear appeal No. CA/J/EPT/GOV/151/2011.

Secondly that the grounds of appeal in the two appeals- SC/332/2011 and SC/333/2011 only challenged the jurisdiction of the lower court with respect to the order it made on 19th September, 2011 not its jurisdiction to hear and determine appeal No. CA/J/EPT/GOV/151/2011.

On Section 285(7) of the 1999 Constitution which stipulates that appeals before the lower court on election matters be heard within 60 days from the date of judgment appealed against, senior counsel submitted that by not hearing the appeal before 9th October, 2011 the lower court breached their right to fair hearing as provided under Section 36(1) of the 1999 Constitution that the adjournment of the appeal sine die on the face of the provisions of Section 285(7) of the 1999 Constitution (as amended/altered) infringes on the appellant’s right to fair hearing, relying on the case of Pam vs Mohammed (2008) 16 NWLR (Pt. 1112) 1 at 48.

It is the further submission of learned senior counsel that it would not be enough if this court merely declare the decision of the lower court a nullity for breach of appellants’ right to fair hearing as the same would not meet the justice of the case but that since the petition pending before the trial tribunal would become spent by the 13th day of November, 2011, the court should invoke its power made under Section 22 of the Supreme court Act to hear and determine appeal No. CA/J/EPT/GOV/151/2011 now pending before the lower court as requested in paragraph 4(4) (5) and (6) of the Notice of Appeal of the appellants as all the processes necessary for the determination of same have been completed , relying on Adeyemo vs Ikeoluma & Sons Ltd (1993) 8 NWLR (pt.309) 27; that to remit the matter to the lower court would result in hardship to the appellants.

Finally learned senior counsel urged the court to resolve the issue in favour of the appellants, allow the appeal and set aside the decision of the lower court made on 26th September, 2011 and hear appeal No. CA/J/EPT/Gov/151/2011; set aside the decision of the trial tribunal reached on 10th August, 2011 and give directions to the secretary of the said tribunal to issue Notice of Pre-Hearing session as in Form TF007 of the 1st schedule to the Election Act, 2010 (as amended) and direct that petition No. BO/EPT/GOV/1/2011 be heard by a different panel to be constituted by the president of the court of Appeal.

It should be noted that 1st – 3rd respondents have raised objection to the competence of appeal No.CA/J/EPT/GOV/151/2011 pending before the lower court and which appellants seek the invocation of the powers of this court under the provisions of section 22 of the Supreme Court Act to hear and determine in view of the fact that by Section 285(7) of the 1999 Constitution, the lower court had sixty (60) days from the date of the decision on appeal to dispose of the appeal which sixty (60) days expired on 8th October, 2001 and that the instant appeal has therefore become an academic exercise and ought not to be countenanced, relying on Nkwocha vs Government of Anambra State (1984) 1 SC NLR 634; Government of Kwara State vs Dada (1986) 40 NWLE (pt. 38) 687 at 968: Bank of the North vs Maidamisa (1997) 10 NWLR (pt. 525) 408 at 422.

In respect of the objection of the 3rd respondent, it is the contention of senior counsel for 3rd respondent that the issue of the petition becoming extinct on 15th October, 2011 and the applicability of Section 285(6)(7) of the 1999 Constitution as urged in the appellants brief were not raised before the lower court neither is there any ground of appeal to support them and consequently urged the court to discountenance them.

The second arm of the objection is that the issue of fair hearing contained in ground 2 and argued in the brief is a fresh issue which is incompetent as no leave of the court was sought and obtained before raising same and urged the court to discountenance same.

In his reaction, learned senior counsel for the appellants submitted that the appeal before the lower court has not lapsed since the petition on which it arose still pends, at the trial tribunal; that the court should give Section 255(7) of the 1999 Constitution (as amended) a broad and liberal interpretation so as not to defeat the intent and purpose of the drafters of the constitution, relying on Rabiu vs Kano State (1980) 8 – 11 S.C 130; that the court should not interpret the section in isolation but as part of a greater whole – relying on Arubu vs INEC (1988) 5 NWLR (Pt. 94) 323; Adewumin vs Ekiti State (2002) 2 NWLR (Pt. 751) 474 at 522; that the court should in addition to section 285(7) consider section 6(6)(b); 318 and 285 of the 1999 Constitution; that the words “judgment” and “decision” as defined in Section 318 of the 1999 Constitution are different particularly as the Section uses the term “include”, relying on Uhunmwangho vs Okojie (1989) 5 NWLR (pt. 122) 471 at 490; that it means that time does not begin to run until the tribunal or Court of Appeal has delivered its judgment and that since the tribunal has not delivered its judgment in petition No BO/EPT/GOV/1/2011 the sixty (60) days referred to in Section 285(7) of the 1999 constitution has not commenced to run; that the court should interpret the provision strictly as same is deigned to oust the normal jurisdiction of the courts, relying on Military Governor Ondo State v. Adewumi (1988) 3 NWLR (pt.82) 280 at 294 – 295; A-G Federation v. Sode (1990) 3 NWLR (Pt.128) 500 at 537 and Nwosu vs Imo state Environmental Sanitation Authority (1990) 2 NWLR (pt.135) 688 at 715.

In the alternative, learned counsel submitted that the present appeal arose from the decision of the lower court delivered on 26th September, 2011 and not from the decision of the tribunal and that the present status of the appeal pending before the lower court which, however, senior counsel has urged the court to invoke its powers under section 22 of the supreme court Act to hear and determine ,”does not in any way affect this appeal” and urged the court to discountenance the objection of the 1st and 2nd respondents and allow the appeal.

In respect of the objection of the 3rd respondent, learned senior counsel submitted that the objection of the 3rd respondent is based on facts without a supporting affidavit thereby rendering the same incompetent and should be dismissed.

Secondly that the arguments canvassed therein does not arise from the grounds of the objection filed on 19th October, 2011 and should be deemed abandoned and consequently struck out; in the determinative, that the complaint on fair hearing arose from the refusal of the lower court to proceed with the hearing of the appeal and therefore not a new/fresh issue as argued; that the issue was actually argued before the lower court; that appeal No. CA/J/EPT/GOV/151/2011 is not statute barred as the same is an interlocutory appeal against the ruling of the trial tribunal and went on to make further submissions on the issue similar to those in response to the objection of the 1st and 2nd respondents, and urged the court to overrule the objection.

In his reply on points of law, learned senior counsel for the 1st and 2nd respondents submitted that appellants have not denied that the appeal before the lower court had lapsed by effluxion of time; that once a word has been defined by statute resort cannot be had to any other source, relying on Uhunmwangho vs Okojie (1989) 12 S.C 442 at 156, and that the word “include” in Section 318 of the 1999 Constitution is an enlarging word not restrictive and the words “decision” and “judgment” as used in Section 285(7) of the 1999 Constitution are synonyms and that to hold otherwise is to read into the plain words of the constitution words that are not there; that there is no difference between an interlocutory decision of the tribunal and a final decision on the merit on the invocation of the provisions of Section 285(7) of the 1999 Constitution (as amended).

Now section 285 (7) of the 1999 Constitution (as amended) provides as follows:

” An appeal from a decision of an Election Tribunal or court shall be heard and disposed of within sixty (60) days from the date of the delivery of judgment of the Tribunal”.

Much argument have been advanced as to the meaning of the words ‘decision” and “judgment” used in above section 285 (7) of the constitution by senior counsel for the contending parties. However, Section 318 of the said 1999 Constitution defines the word decision thus:

“Decision: Means in relation to a court, any determination of that court and include judgment; decree, order, conviction, sentence or recommendation”.

I agree with the submission of learned senior counsel for the 1st and 2nd respondents that once the constitution or statute defines a word or term the court cannot go outside it to seek the meaning of that word or term as the same has been duly defined within the confines of the constitution/statute. See Uhunmwangho vs Okojie (1989)12 S.C 142 at 156. To my mind, the words used in section 285(7) of the 1999 Constitution are very clear and unambiguous and therefore, as settled by law, do not need any interpretation. The words have to be deployed in their plain and ordinary meanings as the court is not permitted to read into any piece of legislation words and/meanings not contained therein or stretch the meanings to include matter(s) not in the contemplation of the framers/drafters of the constitution or statute. Once the above is borne in mind, it becomes necessary to state that the meaning of the word “decision, as defined in Section 318 of the 1999 Constitution is as it relates to a court (and I may add tribunal) and it is clear that it is synonymous with the determination of the court in the form of judgment, decree, order, conviction, sentence or recommendation. In other words, it is my considered view that the word “decision” therein means the same as a determination, judgment, decree, order conviction, sentence or recommendation of a court or tribunal, and, I may add, any quasi judicial tribunal, authority or body.

I hold the view, therefore, that there is no legally cognizable difference between the words “decision” and “judgment” as used in Section 285(7) of the 1999 Constitution as the learned senior counsel for the appellants would want us believe and hold.

It is also of much importance to note that the words “decision” and “judgment” as defined in the said Section 285(7) of the 1999 Constitution applies generally to the determination of a court either in an interlocutory proceeding or in the final decision. The definition admits of no distinction between interlocutory and final proceedings/decisions. A court or tribunal can make an order either in an interlocutory proceeding or in the final decision and it would still be an order or decision or judgment of the court by the provisions of Section 185(7) of the 1999 Constitution

The above being the case, it is clear and I hereby hold that by the provisions of Section 285(7) of the 1999 Constitution an appeal from a decision of an election tribunal or court either in an interlocutory proceeding or final decision must be heard by the appellate court and disposed of within sixty (60) days from the date of the delivery of judgment/decision/order/decree/ conviction/sentence or recommendation of the tribunal or court.

There is no dispute that the decision giving rise to appeal No. CA/J/EPT/GOV/151/2011 was made by the trial tribunal on the 10th day of August, 2011. Also not in dispute is the fact that sixty (60) days from the date of that decision expired on 9th October, 2011.

The legal effect of the expiration of the sixty (60) days prior to the determination of the appeal before the lower court is to extinguish the appeal and with it the order of the lower court made on 26th September, 2011, the subject of the instant appeal being an interlocutory order made in the said appeal.

Learned senior counsel for the appellants has not denied the fact that the appeal pending at the lower court had expired hence his alternative contention that the instant appeal is against the decision of that court made on 26th September, 2011. I hold the view that the above argument is of no moment particularly when one considers the fact that the appellants are calling on this court to invoke its powers under Section 22 of the Supreme Court Act to hear and determine the very expired appeal. It is settled law that this court can only exercise its powers under the said Section 22 by exercising the jurisdiction of the lower court where that court has the jurisdiction to act, not where that court has ceased to have jurisdiction over the matter. In short the jurisdiction of this court under Section 22 of the Supreme Court Act depends completely on the Court of Appeal having jurisdiction to deal with the matter in issue and pending before it.

That apart, the instant appeal if it succeeds on the merit would result in the setting aside of the order of the lower court adjourning the hearing of appeal No. CA/J/EPT/GOV/151/2011. Sine die thereby resulting in the consequential order that the appeal be put back on the cause list of either the lower court or of this court; if the application to invoke section 22 of Supreme Court Act is granted; to be dealt with accordingly. In either case it would be an exercise in futility as both courts no longer have the jurisdiction to deal with the matter complained of. In the circumstances of this case and having regards to the state of the law on the relevant facts I hold that the preliminary objections of the 1st and 2nd respondents is meritorious and the same is according sustained by me.

Consequently this appeal having become an academic exercise in view of the lost of jurisdiction by the lower court to hear and determine same is hereby struck out for being incompetent. However since appeal Nos. SC/332/2011 and SC/333/2011 have been allowed the parties should return to the tribunal to continue with the proceedings from where they stopped.

Appeal Nos. SC/332/2011 and SC/333/2011 are allowed while No. SC/352/2011 is struck out for being incompetent.

Parties to bear their respective costs.

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SC.332/2011 (CON)

Chief (Dr) Pere Ajuwa & Anor V.the Shell Petroleum Development Company Of Nigeria Limited (2011)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI, J.S.C

This is an appeal against the ruling of the Court of Appeal, Abuja Division (“the court below” for short) delivered on 10th May, 2007.

By an Originating Summons issued at the Federal High Court, Yenagoa, Bayelsa State but later transferred and heard at the Federal High Court, Port Harcourt, (“the trial court”, for short) the appellant sought to enforce the Joint Resolution of the National Assembly awarding to the Appellants the sum US$1.5 billion damages as compensation for environmental degradation of the appellants, communities by the respondent’s oil production activities since 1956.

On February 24, 2006, the trial court gave judgment and ordered the respondent to comply with the resolution of the National Assembly and awarded the stated sum of US$1.5 billion to the appellants as compensation for injuries suffered. The respondent felt dissatisfied with the judgment of the trial court and appealed to the court below.

Equally, it applied to the trial court for it to make an order of unconditional stay of execution of it’s judgment. In a Ruling delivered on Friday, May 19, 2006, the trial court refused the application for unconditional stay and ordered the grant of stay of execution on condition that the judgment sum be deposited in the central Bank of Nigeria on or before 12 noon on Monday, May 22nd, 2006 in the name of the Chief Registrar of the Federal High Court.

Being dissatisfied with the Ruling of the trial court, the respondent filed a further application at the court below seeking that the order of conditional stay be varied by granting unconditional stay of execution pending the final determination of the appeal. The respondent filed another application dated September 19th, 2006 seeking leave of the court below to amend its Notice of Appeal by filing and arguing the Amended Notice of Appeal, leave to raise fresh issues and accelerated hearing of the appeal.

The two motions filed by the respondent were part-heard at the Port Harcourt Division of the court below when the appeal was transferred, suo motu, by the court for hearing at the Abuja Division of the court. When hearing resumed de novo) at the Abuja Division, the two applications were heard together. In the Ruling of the court below delivered on May 10th, 2007, the court below granted all the reliefs sought in the two motions. The court below gave the parties time for filing briefs of argument and adjourned the appeal to 21st of June, 2007 for hearing.

The appellants felt unhappy and appealed to this court against the stance posed by the court below.

Learned Senior Counsel to the respondent raised preliminary objections against the grounds of appeal contained in the Notice of Appeal filed by the appellants on 22nd May, 2007. For ease of reference and due appreciation, the six grounds of appeal without their particulars are reproduced as follows:-

GROUND ONE

The Court of Appeal erred in law in granting the appellant applicant’s prayer contained in their application filed on 20th November, 2006 seeking “leave to the defendant/appellant/applicant to amend the notice of appeal in this matter by filing and arguing the Amended Notice of Appeal including raising fresh issues herein attached as

Exhibit SPD1.”

GROUND TWO

The Court of Appeal erred in law when it held per O. O. Adekeye, JCA as follows:-

”I do not agree that the judgment creditor must consent to stay of monetary judgment. This is only required where the judgment debt (sic) is a bank or financial institution.”

GROUND THREE

The Court of Appeal misdirected itself in law in granting the appellant/applicant’s application for unconditional stay of execution of the judgment of the Federal High Court in this case on the ground that:-

“In the instant application, it is not disputed that the appellant/applicant has assets and facilities far in excess of the judgment debt within the jurisdiction of the court and Nigeria. SPDC is also a Nigerian Company wherein the Federal Government has 55% equity interests. It must not elude the court that any order made by court is an interim order pending the hearing and determination of the substantive appeal.”

GROUND FOUR

The Court of Appeal erred in law in allocating the time within which the appellant and the respondents ate to file their briefs of argument in this case and setting down the appeal for hearing on June 21st, 2007.

GROUND FIVE

The Court of Appeal erred in law in granting unconditional stay of execution of the judgment of the Federal High Court in this case in favour of the appellant/applicant’s application when time within which to file the appellant’s brief had expired and there was no application by the appellant/applicant to file its brief.

GROUND SIX

The Court of Appeal erred in law in refusing to dismiss the appellant’s appeal as urged by the respondents on 20th March, 2007.

The Senior Counsel for the respondent, with respect to the preliminary objection, initially maintained that since the present appeal arose from the interlocutory decision of the Court of Appeal made on May 10th, 2007 leave of the court below or this court ought to be obtained before filing the Notice of Appeal. He placed reliance on the provisions of section 21(2) of the Supreme Court Act. Senior Counsel submitted that since the appellants failed to obtain the requisite leave, the entire Notice of Appeal and the appeal are incompetent and should be struck out or dismissed.

Senior Counsel urged that the provisions of Section 21(2) of the Supreme Court Act should be read along with the provisions of Section 233(2) (a); (3) and (6) of the 1999 Constitution and that appeal on interlocutory decisions of the Court of Appeal lies to the Supreme Court with leave either of the court below or this court.

Senior counsel for the appellants had a contrary view. He felt that since the grounds of appeal are grounds of law, an appeal lies as of right to this court. He submitted that the argument of learned Senior Counsel for the respondent that Section 233(1) (2) (a) of the Constitution is subject to Section 21 (2) of the Supreme Court Act by reason of Section 233 (6) of the Constitution belittles the Constitution which is the organic law of the state and the grundnorm. He observed that Section 233 (2) (a) of the Constitution confers a specific right of appeal without any requirement for leave on questions of law against decisions of the Court of Appeal in any civil or criminal proceedings. He felt that what is contemplated by Section 233(6) are situations other than those already expressly provided for in the previous subsections of the section. He submitted that if a harmonious interpretation is given to Section 21 (2) of the Supreme Court Act, the court will arrive at an interpretation that leave of the court below or of this court is required for an appeal against an interlocutory order or decision of the court below on questions other than questions of law alone.

He opined that this is consistent with the provision of Section 233 (3) of the Constitution.

Senior counsel for the appellants referred to decisions of this court in National Employers Mutual General Insurance Association Ltd. V. Uchay (1973) 4 SC 1 (Reprint) and Onigbeden v. Balogun (1975) 5 SC 63 (Reprint). He submitted that the interpretation put forward by the Senior Counsel for the respondent is destructive of Section 233 (1), (2) (a) of the Constitution and disruptive of settled principles and therefore should be rejected. He cited the cases of Ojemen V. Momodu (1983) 1 SCNLR 188 at 203; Comex Ltd. V. N.A.B. Ltd. (1997) 3 NWLR (Pt. 496) 643 at 653; Maigoro V. Garba (1999) 10 NWLR (Pt.624) 555 at 567-568; Adeyemo V. Beyioku (1990) 10 NWLR (Pt. 635) 472 at 489; Ngige v. Achuhwu (2004) 8 NWLR (Pt. 875) 363 at 394.

At this point, it is apt to reproduce the provisions of Section 233(2) (a), (3) and (6) of the 1999 Constitution along with Section 21 (2) of the Supreme Court Act so as to appreciate their clear purport and intendment in relation to the point herein in contention. They read as follows:-

Section 233 (2) (a) of the 1999 Constitution:

“An appeal shall lie from decision of the Court of Appeal to the Supreme Court as of right in the following cases (a) Where the ground of appeal involves question of law alone, decision in any civil or criminal proceedings before the Court of Appeal”.

Section 233(3) of the 1999 Constitution:

“Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.”

Section 233 (6) of the 1999 Constitution:

“Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this section shall subject to section 236 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Supreme Court.”

Section 21 (2) of the Supreme Court Act:

“Where in the exercise by the court of Appeal of its jurisdiction an interlocutory order or decision is made in the course of any suit or matter an appeal shall, by leave of that court or of the Supreme Court, as the case may be, lie to the Supreme Court; but no appeal shall lie from any order made ex parte, or by consent of the parties or relating only to costs.”

From the above reproduced Section 233(2) (a) of the 1999 constitution, it is clear beyond peradventure that an appeal shall lie from decision of the court of Appeal to the Supreme Court as of right where the ground of appeal involves question of law alone. Section 233 (2) (a) of the Constitution confers a specific right of appeal without any requirement for leave on question of law against decisions of the court below in any civil or criminal proceedings. And Section 233 (3) provides that subject to the provisions of subsection (2) of this section an appeal shall lie from decisions of the court below to the Supreme Court with the leave of the court of Appeal or the Supreme Court. To my mind, appeal on question of law alone without leave is unique. Section 233(6) relates to other appeals against interlocutory decisions of the court below on questions other than those of law. This is consistent with the provisions of Section 233 (3) of the Constitution.

It is my considered opinion that the provisions of Section 233 (2) (a), (3) and (6) should be given a harmonious reading in such a manner that it does not obliterate the clear provisions of Section 233 (2) (a) which gives a specific provision of right of appeal without leave on point of law. Subsection (3) of Section 233 of the constitution makes other rights of appeal subject to that provided in subsection (2) (a) of the same. To find otherwise will, in my opinion, be disruptive of settled principles. See: Ojemen v. Momodu 11 (supra) at page 203.

I do not agree with the stance posed by the respondent.

I hold that the appeal is competent.

That now takes me to the objection raised to the competence of grounds 3, 4 and 5 of the appellants’ Notice of Appeal. Chief Akinjide, SAN submitted that grounds 3, 4 and 5 are, at best, grounds of mixed law and facts and required the leave of either the court of Appeal or this court before they could be lodged. He observed that the stated grounds and their particulars must be read together to reach a decision. Learned senior counsel cited Opuiyo v. Omoniwari (2007) 16 NWLR (Pt. 1060) 415 at 430 and Metal Construction (W.A) Ltd. v. Migliore (1990) 1 NWLR (pt. 126) 299 at 314; Comex Ltd. v. N.A.B. Ltd. (1997) 3 NWLR (Pt. 496) 643 at 654.

Senior counsel submitted that the particulars attending to grounds 3, 4 and 5 challenge the evaluation by the court below and that the appellants contended that on the strength of the facts alleged therein, the court below ought to have reached a different conclusion. Senior counsel felt that same is clearly a question of fact.

Senior counsel submitted that the mere description or labeling of a ground of appeal as ‘error of law’ is not conclusive and is irrelevant to the determination whether that ground is of law, fact or mixed law and facts. The court looks at the substance of the complaint in the ground of appeal. He cited the cases of Nwadike v. Ibekwe (1987) 2 NSCC 1219 and Ojemen v. Momodu 11 (1983) NSCC 135. He observed that any issue for determination framed from grounds 3, 4 and 5 of the appellants’ Notice of Appeal are incompetent.

Senior counsel further submitted that grounds 3 and 5 should be deemed abandoned and liable to be struck out as no issue for determination was framed from the grounds. He cited Chukwumah V. Shell Petroleum (1993) 4 NWLR (Pt.289) 512 at 551.

Learned senior counsel finally urged that appellants’ Grounds 3, 4 and 5 should be struck out.

Learned senior counsel for the appellants agreed that in the determination of the question whether or not a ground of appeal is of law or fact or mixed law and facts, it is important to consider together the principal complaint and the particulars of the error provided thereunder.

He felt that the substance of the complaint in Ground 3 is that the court below misdirected itself in law as there was no evidence on record to support its decision to grant unconditional stay of execution. He submitted that the court below did not exercise its power to grant unconditional stay of execution on recognised legal principles. He cited the case of Ogbechie v. Onochie (1986) 2 NWLR (pt. 23) 484; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718.

Senior counsel submitted that Ground 3 of the Notice of Appeal is a ground of law.

Further, senior counsel for the appellants submitted that grounds 3 and 5 were not abandoned as they were well covered by issues for determination raised by the appellants. He observed that ground 3 was argued under issue 1 while ground 5 relates to consequence of failure to file brief of argument within time prescribed by the Rules of court.

It has been pronounced by this court in Nwadike V. Ibelone (supra) at page 1235 that it is a recognised fact that the line of distinction between law simpliciter and mixed law and fact is a very thin one. But one does not convert a ground of mixed law and fact into a ground of law by christening it ‘error of law’ or misdirection in law.

Grounds of appeal and particulars attending to them must be carefully read together to arrive at a decision.

As carefully set out by Nnaemeka-Agu, JSC in Nwadike V. Ibekwe (supra) on the point –

(a) It is an error law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion. O’Kelly v. Trusthouse Forte PLC (1983) 3 ALL ER 468.

(b) Several issues that can be raised on legal interpretation of deeds, documents, term of arts and inference drawn therefrom are grounds of law. Ogbechie V. Onochie (supra) at 491.

(c) Where a ground deals merely with a matter of inference, even if it be inference of fact, a ground framed from such is aground of law. Benmax V. Austin Motor Co. Ltd. (1945) All ER 326.

(d) Where a tribunal states the law in a point wrongly, it commits an error in law.

(e) Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based, same is regarded as a ground of law.

(f) If a judge considers matters which are not before him and relies on them for the exercise of his discretion, he will be exercising same on wrong principles and this will be a question of law. Metal Construction (W.A) Ltd V. Migliore (supra) at page 315.

A careful appraisal of the particulars attending to ground shows that the complaint therein is that there is no evidence before the court below that the respondent is a Nigerian Company wherein the Federal Government has 55% equity interest. As for ground 4, the real complaint is that there was no application before the court below for enlargement of time to file the appellants’ brief thereat.

And as for ground 5, the complaint is that unconditional stay was granted at the time when the appellant did not seek leave to file its brief of argument. To my mind, the three grounds of the appeal, read carefully with their particulars; show that they are grounds of law.

It can be deduced that the first issue covers ground 1 of the grounds of appeal. It touches on principles of granting unconditional stay of execution. Issue 3 is covered by ground 5. It has to do with the complaint that appellant failed to file brief of argument within the time allowed by the Rules of court. In short, I am unable to surmise how the stated grounds of appeal can be said to have been abandoned.

In short, I over rule the preliminary objection had taken on behalf of the respondent. The appeal shall be considered on its merit anon.

The three (3) issues formplated on behalf of the appellants for determination read as follows:-

“(1) Whether the Court of Appeal followed the principle laid down by the Supreme Court for the grant of unconditional stay of execution for money judgment in granting to the respondent an unconditional stay of execution of the judgment of the Federal High Court.

(2) Whether the first prayer contained in the respondent’s motion dated 19th September 2006 was not too vague and bad in law to be granted by the court.

(3)Whether the court of Appeal ought not to have struck out “the respondent’s appeal in the court below rather than setting it down for hearing expeditiously when the time within which the respondent should file its brief of argument had expired and there was no application for enlargement of time to file the brief.”

On behalf of the respondent, four issues couched for determination read as follows:-

“(a) whether the judicial discretion of the courts to grant unconditional stay of execution is dependent on the consent of the judgment creditor, irrespective of the peculiar facts of each case.

(b) Whether or not, having, regard to the law and the affidavit evidence, the Court of Appeal was right in granting the reliefs contained in the first paragraph of the Prayers in the respondent’s Motion dated September 19th, 2006.

(c) Whether the order for the filing of briefs by the Court of Appeal is a necessary and consequential order following the grant by the Court of Appeal of the reliefs in the respondent’s Motion dated 19/9/2006 (as the respondents contends) or whether the order for the filing of briefs amounted to granting a relief not sought (as the appellants contend).

(d) Whether or not having regard to all the facts and circumstances of the case, the respondent’s appeal at the Court of Appeal can, in law, be deemed to have been abandoned.”

The 1st issue formulated by the parties, couched in different words, was hotly contested. It is whether the judicial discretion of the court to grant unconditional stay of execution is dependent on the consent of the judgment creditor or not.

Senior counsel for the appellants submitted that since this is a money judgment the only instance where the court may allow the judgment debtor who has applied for a stay of execution pending appeal to retain the judgment debt is where the judgment creditor consents to same. He relied principally on the decision of this court in UBN Ltd. V. Odusote Bookstore Ltd. 3 NWLR (Pt. 331) 129 at 151. Senior counsel felt that the court below violated the principle of stare decisis for not following the decision of this court therein. He felt that such a stance also violated the provision of section 287 (1) of the 1999 Constitution.

Senior counsel submitted that impecuniosity, per se, is not a ground for granting an unconditional stay of execution or varying the terms of a stay already granted. He cited Franchal (Nig) Ltd. V. Nigeria Arab bank Ltd. (2000) 9 NWLR (Pt. 67 1) 1 at 22; Nwabueze V. Nwosu (1988) 4 NWLR (Pt. 88) 272.

Senior counsel further submitted that the fact that a judgment debt is substantial or colossal is not a ground for granting an unconditional stay of execution. He cited Mobil Producting (Nig) Unlimited V. Monokpo (2001) 18 NWLR (Pt. 744) 212 at 242.

Senior counsel submitted that the court below seriously misdirected itself in law in basing its decision, inter alia, on the fact that SPDC is a Nigerian Company wherein the Federal Government has 55% Equity interests as there was no evidence on record on same. He observed that the Federal Government is not a party in the case.

Senior counsel further observed that the discretion to grant or refuse a stay of execution must take into account the competing rights of the parties. He cited Okafor V. Nnaife (1978) 4 NWLR (Pt. 64) 129 at 136; Mobil Oil (Nig) Ltd v. Agadaigho (1988) 2 NWLR (Pt. 77) 388 and Martins V. Nicanner Food & Co. Ltd. (1988) 2 NWLR (pt. 74) 75.

On behalf of the respondent, senior counsel submitted that the judicial discretion of the court below to vary the terms of the stay granted by the trial court by granting unconditional stay of execution is not dependent on the consent of the judgment creditor. He maintained that to hold otherwise is to convert the judicial discretion of the court below to the discretion of the judgment creditor. He asserted that judicial discretion must be exercised judicially and judiciously having regards to the peculiar facts of each case. Senior counsel maintained that where the exercise of discretion is clogged for being dependent on a factor outside the control of the court, like the consent of the judgment creditor herein as craved by the appellant, it ceases automatically to be judicial discretion.

Senior counsel submitted that in the exercise of discretion, each case is to be decided on the strength of its peculiar facts. He observed that what the appellants rely on to urge stare decisis arose from the opinion – obiter dictum of Uwais, JSC (as he then was) in UBN Ltd. Odusote Bookstore Ltd. (supra). He felt that the case is totally different from this case and therefore the principle of stare decisis does not arise.

Senior counsel maintained that the learned justice did not intend to lay down a binding principle of law applicable in all cases irrespective of the facts of each case that unless the judgment creditor consents, to allow the judgment debtor to retain the judgment debt would be to give the judgment debtor undue advantage over the judgment creditor. He observed that the opinion of the learned justice relates to – a bank that is a judgment debtor retaining the judgment debt as deposit.

Senior counsel maintained that the consent of the judgment creditor is not and cannot be a requirement for the court below to exercise its judicial discretion to grant unconditional stay of execution. He felt that it is not the law that a judgment creditor must consent before an order of unconditional stay can be made.

Senior counsel asserted that the terms of stay of execution imposed on SPDC by the trial court were onerous and impossible to comply with.

Senior counsel maintained that the case of SPDC for unconditional stay of execution was predicated on the doctrine of corporate death and not impecuniosity. He cited Orient Bank (Nig) Plc V. Bilante International Ltd. (1996) 5 NWLR (Pt. 447) 166 at 180 – 182.

On the point touching on colossal sum, he submitted that though same is not a determinant of whether conditional or unconditional stay should be granted, it is a factor to be taken into consideration.

Senior counsel observed that SPDC deposed to affidavit that the Federal Government of Nigeria (FGN) has 55% equity interest in the comp any and the averment was not controverted. The Federal Government of Nigeria has interest in the joint venture operated by SPDC. Senior counsel observed that third parties’ interests are equity’s darling and courts jealously protect them.

In the alternative, senior counsel urged that if it is decided in UBN Ltd. V. Odusote Bookstore Ltd. (supra) that the only occasion when it would be proper to order unconditional stay of execution pending appeal, will be when the judgment creditor consents to the court seized with the matter making the order, this court should overrule the decision to that extent.

Learned counsel submitted that this court will overrule its previous decision where it is shown that:

(i) the previous decision is clearly wrong and there is real likelihood of injustice being perpetrated; or

(ii) that the previous decision was given per incuriam; or

(iii) that a broad issue of policy was involved.

He cited Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530 at 543; Adisa V. Oyinwola (2000) 10 NWLR (Pt. 746) 116. He further observed that this court will overrule its earlier decision where same is capable of fettering the exercise of judicial discretion by a court. See: Adisa V. Oyinwola (supra).

Senior counsel submitted that it will perpetrate injustice and also fetter the exercise of judicial discretion by the courts if it is upheld that the only occasion when it would be proper to order unconditional stay of execution pending appeal will be when the judgment creditor consents to the court seized with the matter making the order. He felt that such will put the grant of unconditional stay of execution in deserving cases at the whims and caprices of the judgment creditor who will just need to say ‘I do not consent’. He asserted that the opinion expressed by the learned justice in UBN V. Odusote Bookstore Ltd. (supra) did not require the judgment creditor to give reason for not consenting and that makes it impossible to challenge the refusal of the judgment creditor withholding his consent.

Senior counsel further asserted that it is also an issue of public policy to see that judicial discretion of the court is not put in the hands of interested parties to a case before the court. The court will be abdicating its constitutional role of adjudication if the court subjects the exercise of its judicial discretion to the whims and caprices of the interested Parties.

The heat generated in respect of this point is intense. In the ruling of the court below delivered on 10th May, 2007 Adekeye, JCA (as she then was) said-

“I do not agree that the judgment creditor must consent to all applications for stay of monetary judgment. This is only required where the judgment debtor is a bank or financial institution.”

In UBN Ltd. v. Odussote Bookstore Ltd. (supra) at page 151, the learned justice stated –

“Finally, in my opinion, the only occasion when it would be proper to order that a bank that is a judgment debtor could retain the judgment debt, in an order for stay of execution pending appeal, will be when the judgment debtor (sic) consents to the court seized with the matter making the Order.”

Earlier on at page 150, the learned justice stated as follows:-

“To allow the bank to retain the judgment debt as deposit notwithstanding that it will pay commercial interest on the amount, is in my opinion tantamount to giving it undue advantage over the judgment creditor. For it is a matter of common knowledge that the bank would employ the funds in charging higher interests than could accrue to the judgment creditor in the event of the bank’s appeal failing.”

At page 151 C-D, the learned justice finally caped same as follows:-

“In the present case, it is common ground, as the parties have agreed in the alternative to their conflicting submissions that the judgment debt should be deposited in either the First Bank of Nigeria Plc or the united Bank of Africa Plc. Consequently, I am satisfied that on the whole there are special circumstances to warrant the grant of the application for stay of execution pending the appeal in this court. Accordingly, the application is hereby granted on the following terms…”

In matters of judicial discretion, since the facts of two cases are not always the same, this court does not make it a practice to lay down rules or principles to fetter the exercise of its discretion or that of the lower courts. In matters of discretion, no one case is authority for the other. A court cannot be bound by a previous decision to exercise its discretion in regimented way, because that would be as it were, putting an end to discretion. See: Akujinwa V. Nwaonuma (1998) 13 NWLR (Pt. 583) 632 at 647; Attorney-General Rivers V. Ude (2006) 17 NWLR (Pt. 1008) 436 at 461; Odusote v. Odusote (1971) 1 All NLR 219 at 222.

Judicial discretion is a sacred Power which inheres to a judge. It is an armour which the judge should employ judicially and judiciously to arrive at a just decision. Same should not be left to the whims and caprices of a party to the action. It is not in tandem with the dictates of public policy which demands, inter alia, that administration of justice shall be discharged without any- form of prompting by the parties.

Discretion had been defined to mean ‘a power or right’ conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. See: State v. Whitman R. 11, 431 A.2d 1229, 1233; Black’s Law Dictionary, Sixth Edition Page 466.

It is clear that a judicial officer should exercise his discretion judicially and judiciously as well. See: University of Lagos v. Olaniyan (1985) 16 NSCC (Pt. 1) 98, 113; Eronini V. Iheuko (1989) 2 NSCC (Pt. 1) 503, 313; (1989) 3 SC (Pt. 1) 30.

Let me say it in passing that this court does not condone a situation where an earlier decision is capable of fettering the exercise of judicial discretion. Judicial discretion is a vital tool in the administration of justice. See Adisa V. Oyinwola (supra).

It is my considered opinion that the decision of this court UBN V. Odusote Bookstore Ltd. (supra) did not lay it down as a general principle of law that in all money judgments, the consent of judgment creditors must be secured to enable judges make order of stay of execution. It is when the judgment debtor is a bank or a financial institution and a proposal is being made as to where the judgment debt would be kept pending determination of the appeal that parties, but more especially the judgment creditor, will have an input.

In effect, I agree with the stance of the court below that it is not a must that the consent of a judgment creditor must be had and obtained in all applications for stay of monetary judgment. Such is only required where judgment debtor is a bank or financial institution which has to keep the judgment debt in its bank where same is employed to its advantage.

In sum, the invitation by the respondent’s senior counsel overrule the decision in respect of the point in UBN Ltd. V. Odusote Bookstore Ltd. (supra) is not of any moment.

In granting conditional stay of execution on May 19th, 2006, the trial court ordered as follows:-

”That execution of the judgment in this suit is stayed on condition that the judgment debtor/applicant deposit the judgment sum of US$1.5 billion with the central Bank of Nigeria in an interest yielding account in the name of the Chief Registrar, Federal High Court of Nigeria on or before 12.00 noon Monday, 22nd of May 2006 to await the out come of the appeal.”

The court below found that the trial High Court made the order of conditional stay in terms which were onerous and impossible to, comply with. This is clearly manifest in the 3rd further affidavit of the respondent. The respondent was ordered to pay the sum of US$1.5 billion within a time that is less than one working day. As the ready cash was not available, the respondent would have to dispose of its assets and oil wells etc. If the appeal succeeds, the judgment will be barren- as their assets would have gone. All these factors convinced the court below to find that the respondent showed why the order is onerous and impossible of immediate performance. I feel the court below was in order.

On behalf of the appellants, it was submitted that impecuniousity is not a ground for granting an order for unconditional stay of execution. The respondent agreed with same but maintained that their stand is predicated on doctrine of corporate death and not impecuniousity. The court below agreed that in line with the doctrine of corporate death, the respondent should be kept ‘alive’ to enable it pursue its appeal. It maintained that the goose that lays the golden eggs must not be allowed to Pass-on. A death which denies the respondent of prosecuting the appeal is not justice. The court below made its order to keep the appellant alive to prosecute the appeal. I am unable to fault that decision. The same was the stance of the court below in orient Bank Nig Plc v. Bilante International Ltd. (1996) 5 NWLR (Pt. 447) 166 at 180-182.

The appellants argued that there was no evidence before the court below that the Federal Government of Nigeria (FGN) has 55% equity interest in the company. But I note that same is covered in paragraphs 13 and 14 of the 3rd further affidavit on pages 107 -108 of Volume 2 of the record of appeal. As the depositions were not challenged, they are deemed to be admitted by the appellants. See: Omoregbe v. Lawani (1980) 3-4, SC 108, 117; Fasoro v. Beyioku & ors. (1988) 2 NWLR (Pt.76) 263, 271; Mogaji v. Cadbury Nig. Ltd. (1972) 2 SC 97; Okerie V. Ejiofor (1996) 3 NWLR (Pt. 434) 90 at 104.

The appellants felt that the Federal Government of Nigeria is not a party and that the respondent ought to have joined the Federal Government of Nigeria as a party. It should be stated that the facts of the interest of Federal Government of Nigeria and other 3rd party interests in the Joint Venture operated by SPDC were deposed to for the purpose of bringing to the notice of the court below ‘third parties interests’ that would be adversely affected if unconditional stay was refused. That was well made as ‘third parties’ interests are equity’s darling’. The court must protect them jealously.

The 1st issue is hereby resolved in favour of the respondent and against the appellants.

Issue No. 2, as couched by the appellants, is whether the first prayer contained in the respondent’s motion dated 19th September, 2006 was not too vague and bad in law to be granted by the court.

On behalf of the appellants, it was contended that prayer 1 in the respondent’s motion dated 19th September, 2006 is bid in law for misjoinder of prayers. Senior counsel submitted that a prayer for amendment is distinct and separate from a prayer for leave to raise fresh issues on appeal.

He felt that the two prayers cannot be joined as the principles for the grant of the two prayers are not the same. Senior counsel further submitted that just as an action is liable to be struck out for misjoinder of causes of actions, so also is an application liable to be struck out for misjoinder of Prayers. He cited C.C.B (Nig) Plc V. Rose (1988) 4 NWLR (Pt. 544) 37 at 46 and Amachree V. Newington (Pt. 1952) 97. Senior counsel maintained that it is not the function of the court to sever misjoined prayers. He cited Government of Gongola State V. Tukur (1959) 4 MLR (Pt. 117) 595 at 603; Commissioner for Works, Benue State V. Devcon Ltd. (1988) 3 NWLR (Pt. 83) 407 at 420.

Senior counsel felt that the court below ought not to have granted prayer I because it is too vague and imprecise. Senior counsel for the respondent, or his part, maintained that the appellants opposed only on technical ground by alleging misjoinder of prayers. The appellants did not challenge the merit of the reliefs sought in the said motion. Senior counsel for the respondent maintained that the appellants do not complain that both reliefs were not sought. The only complaint is that both reliefs were misjoined in one paragraph. He asserted that the alleged misjoinder was, at best, an irregularity which the court below in its discretion waived when it granted the motion.

Learned senior counsel opined that no miscarriage of justice was alleged or proved and they failed to show the way they were prejudicial or misled by the alleged misjoinder.

Senior counsel observed that the appellants’ allusion to misjoinder of causes of action is misconceived. He maintained that it is a rule of convenience and that the two prayers can be conveniently sought and granted in one application. He asserted that courts treat misjoinder of causes of action, if at all, as a mere irregularity.

Senior counsel observed that the current attitude of this court which has permeated all the levels of our court system is a total departure from technicality as courts no longer sacrifice the interest of justice on the altar of technicalities. He cited Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) 277.

The reliefs sought in the motion dated 19th September, 2006 read as follows;-

“1. Granting leave to the Defendant/Appellant/Applicant to amend the Notice of Appeal in this matter by filing and arguing the Amended Notice of Appeal including raising fresh issues herein attached as Exhibit SPDC 1.

2. For accelerated hearing of the appeal.”

To say the least, the wording of prayer 1 can be described as inelegant. That is not to suggest that the two prayers to amend the Notice of Appeal and to raise fresh issues cannot be discerned therein. If they had been duly separated, the novel tag of ‘misjoinder of prayers’ would have been avoided.

In my considered opinion, same is a mere irregularity that was rightly waived by the court below. After all, the appellants have not shown how they have been prejudiced or misled.

The technical objection is misconceived. The days of technicalities are gone. The current vogue is the doing of substantial justice to both sides in such a way that the main appeal will be heard and determined on its merit. See: Bello v. Attorney-General Oyo State (1986) 12 SC 1; Ogunubi v. Kosoko (1991) 18 NWLR (Pt 210) 511; Fawehinmi v. Akilu (1989) 3 NWLR (Pt 112) 643 and Egegbu V. F.A.T.B (1992) 1 NWLR (Pt. 220) 709.

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

Issue No. 3 is whether the court below ought not to have struck out the respondents’ appeal rather than setting it down for hearing expeditiously when the time within which the respondent should file its brief of argument had expired and there was no application for enlargement of time to file the brief. This issue encapsulates issues 3 and 4 formulated by the respondent.

The complaint of the appellants is that the respondent failed to file its brief of argument within the time stipulated by order 6 Rule 2 of the Court of Appeal Rules, 2002. On that ground, learned senior counsel for the appellants urged that the appeal of the respondent at the court below should be dismissed.

Further, senior counsel submitted that the court below was wrong when it allocated time within which the parties should file their briefs and set the appeal down for hearing. He felt that the appeal of the respondent at the court below is deemed, in law, as having been abandoned.

Senior counsel for the respondent observed that SPDC motion dated 19/9/2006 seeking amendment of SPDC original Notice of Appeal was filed on 20/9/2006 when SPDC was still within time in filing its brief of arguments. Senior counsel said it was not the fault of the respondent that at the time the motion was eventually heard on March 20th, 2007 and ruling delivered on May 10th, 2007 time for the filing of the briefs had elapsed. He observed that SPDC was not entitled to file its Brief of Arguments when the motion for amendment of Notice of Appeal and raising fresh issues was pending.

Senior counsel submitted that the order for filing briefs was consequential to the orders granted to amend Notice of Appeal, raise fresh issues and accelerated hearing. He felt that it was immaterial that no application was made at the time the court below so acted. He cited the case of Nneji & Ors. v. Chukwu & Ors (1988) 1 NSCC 1115.

Senior counsel further submitted that having regard to the facts and circumstances of the case, it cannot be said that SPDC had abandoned its appeal at the court below for the mere reason that time for filing of Briefs had elapsed. He cited the case of Obomhense V. Erhahon (1993) 7 NWLR (Pt. 303) 22 at 41.

Senior counsel observed that this court has in several decisions particularly in Amadi V. N.N.P.C. (2000) 10 NWLR (pt. 674) 76 frowned against the use of interlocutory appeal to delay the hearing of the substantive appeal, more so as there is nothing in this interlocutory appeal that will dispose of the substantive appeal. He urged that this appeal be dismissed.

From the facts and circumstances of this matter, it was not the fault of the respondent that its motion to amend its Notice of Appeal and raise fresh issues was not heard in good time to enable it file it’s brief of argument within the time stipulated by the Rules of the court below. The court eventually heard the motion and after granting same, made consequential orders to file briefs of argument and set the appeal down for hearing. All these steps were well taken. It was immaterial that no application was filed when the court below made the consequential orders. In Nneji & ors. V. Chukwu & Ors. (supra) with a similar setting, this court held that the order of the court of Appeal for filing of briefs out of time without a prior application for same was an order necessary for determining the real question in controversy in the appeal. The orders appear necessary and the need for same arose incidentally.

In the circumstances of this matter, can the respondent be said to have abandoned its appeal at the court below I think not. Again in a similar setting in Obomhense V. Erhahen (supra) at page 41, this court held as follows:-

”I do not think it is right or reasonable to hold that an appellant who has filed a motion for leave to file and argue additional grounds of appeal lacks the will to prosecute his appeal. I regard it as preposterous and an abuse of language to so hold. It is certainly not evidence of apathy towards the prosecution of the appeal or tardiness in doing so. It is certainly in my opinion the opposite. An appellant who has in court an application to file additional grounds of appeal cannot be said to be apathetic to the prosecution of the appeal the grounds of which he is seeking to add to.”

The court below maintained that – ‘there is no indication that this appeal was abandoned in default of filing the appellant’s brief’. I am at one with the court below as it was in order. In short, the issue is resolved in favour of the respondent and against the appellants.

The court below in its bid to exercise its discretion judicially and judiciously examined the grounds of appeal and concluded that they raise substantial points of law as follows:-

(1) Constitutional law and doctrine of separation of powers.

(2) Statute of limitation.

(3) Jurisdiction of the Federal High Court to entertain the claims

(4) Capacity of the plaintiffs/respondents (at the trial court) to bring the claim.

(5) Issue of Bias.

I seriously feel that parties should go to the court below and concentrate their armour for due employment in respect of the main appeal thereat.

I come to the final conclusion that this appeal is devoid of merit and it is hereby dismissed. The appellants shall pay: N50, 000.00 costs to the respondent.

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SC.290/2007

Francis Adesina Ayanwale V. Olumuyiwa Olumide Odusami (2011)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

The appellant as plaintiff on a further amended statement of claim, claimed from the respondent as defendant the following:

1. Declaration of Statutory right of occupancy to the piece or parcel of land situate, lying and being at Adesiyan Street, Palm grove, Ilupeju off Ikorodu Road, Lagos State.
2. N500 damages for trespass;
3. An order of injunction restraining the defendant jointly and severally, their respective servants and/or agents from committing further acts of trespass on the said parcel of land.

The plaintiff gave evidence to show that he was entitled to a declaration of title to the land in dispute. The defendant and one Mr. John Ayo Adegboye gave evidence contending that it is the defendant that is the lawful owner of the land. Fourteen documents were admitted in evidence as exhibits. In a considered judgment delivered on the 24th day of November, 2000, the learned trial judge granted all the plaintiff’s reliefs. The learned trial judge reasoned as follows:

“I prefer the evidence of the plaintiff and his witnesses to that of the defendant and his witness. The 3rd defendant failed to call the proprietor of the school whom he claimed to have given a portion to testify for him. From the evidence before me it is my finding and I so hold that the plaintiff in this case has a better title. On the whole, having gone through the whole evidence and having given my most careful scrutiny, I have come to the conclusion that the plaintiffs case must succeed”.

Dissatisfied, the defendant lodged an appeal in the Court of Appeal, Lagos Division. That Court reversed the judgment of the learned trial judge. In allowing the appeal the Court of Appeal said:

“In the instant case, the plaintiff/respondent on whom lay the onus of proof failed to give evidence as to how Ojomo Eyisha family came on the land. He did not, by evidence link his Deeds of Conveyance to the established land owing family. As I said all he did was to tender bare Deeds of Conveyance…the Learned trial Judge was wrong in granting a declaration of title to the respondent…”

This appeal is against that judgment. In accordance with rules of this Court briefs were filed and exchanged. The appellants brief was duly filed on the 7th of June, 2004, while the respondents brief was duly filed on 1st of September, 2004.

From the Notice of Appeal filed on 11th December 2002, but deemed duly filed on 4/10/11 a sole issue was formulated for determination. It reads:

Whether, in view of the evidence before the court, the Court of Appeal was right in dismissing the Plaintiff’s claim for declaration of Statutory right of occupancy.

Learned Counsel for the respondent also formulated a sole issue for determination. It reads:

“Whether the Court of Appeal was right in dismissing the appellant’s claim for Declaration of title when the appellant merely tendered two Deeds of Conveyance (Exhibits B and C) in proof of his claim but failed to give traditional evidence of his root of title.

Both issues ask the same question, and so this appeal shall be heard on the issue formulated by the appellant.

At the hearing of the appeal on 4th of October, 2011 both counsel adopted their briefs and urged this court to find as per their respective conclusions. Arguments in the briefs run as follows:

Learned Counsel for the appellant observed that both parties traced their title to the Ojomo Eyisha family, the original owner of the land in dispute. He submitted that the appellant was the first to purchase the land and so had a better title than the respondent. Reference was made to Exhibits B. and C.

He further submitted that there is a presumption of regularity with Exhibits B and C since both exhibits were over twenty years old at the time of commencement of this action. Concluding, learned Counsel contended that the judgment of the Court of Appeal was erroneous and ought to be set aside.

Learned Counsel for the respondent observed that the area of land in Exhibit B is more than the area in Exhibit C contending that both deeds of conveyance are irreconcilable. In further argument he observed that the mere tendering of documents is not enough to prove title to land. Reference was made to:

Lawson v Ajibulu (1997) 6 NWLR (Pt.507) p.14

Piaro v Tenalo 12 SC p.31

Concluding he observed that the Court of Appeal was right in dismissing the case of the appellant.

In a claim for declaration of title to land, the starting point is the identity of land. The identity of the land must be clearly ascertained. The identity of land would be in issue if, and only if the defendant in his pleadings disputed either the area of the land or its location. See: Ezeudu & Ors v Obiaewu (1986) 2 NWLR (Pt. 21) p.208.

If pleadings are to be of any value the parties must be held bound by them.

In paragraph 2 of the further amended statement of claim the plaintiff/appellant pleaded the identity of the land as follows:

“2. The defendants are squatters on a piece of land situated lying and being at 2A Adeshiyan Street Palm grove, Ilupeju, off Ikorodu Road. The Plan of which is attached herewith.”

In response, the defendant averred in paragraph 2 of the defendant’s pleadings that:

“2. The defendant denies paragraph 2 of the statement of claim and avers that he is in lawful possession of the property at No.2A Adeshiyan Street ……..”

There is no doubt from the pleadings that No. 2A Adesiyan Street, Palm Grove, Ilupeju Lagos is the identity of the land in dispute.

The defendant did not dispute the area of the land or its location in his pleadings and so the identity of the land is not in issue. Arguing the issue of identity of the land in his brief without pleading it goes to no issue since counsel submissions no matter how alluring can never take the place of legal Proof. See:

Bello v NBN (1992) 8 NWLR (Pt.246) P.206;

Ishola v Ajiboye (1998) 1 NWLR (Pt. 532) p.74.

The identity of the land is not in issue.

In a claim for declaration of title the plaintiff succeeds on the strength of his case and not on the weakness of the defendant’s case and the onus lies on the plaintiff to satisfy the court on the evidence he adduced that he is entitled to a declaration of title. If the plaintiff fails to discharge the onus his claim fails and his action is dismissed. See:

Kodilinye v Odu (1935) 2 W.A.C.A. p.336;

Abisi v Ekwealor (1993) 6 N.W.L.R. (Pt.302) p.43;

Salami v Gbodoolu (1997) 4 NWLR (Pt.449) p.377.

Now, title to land or ownership of land may be proved in any of the following five ways:

1. by traditional evidence;
2. by production of documents of title which are duly authenticated;
3. by acts of Selling, Leasing, Renting out all or part of the land or farming on it or on a portion of it;
4. by acts of long possession and enjoyment of land and;
5. by proof of possession of connected or, and adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.

See:

Idundun v Okumagba (1976) 9/10 SC p.227

In allowing the appeal the Court of Appeal said that all that the plaintiff did was to tender bare deeds of conveyance. Reference was made to the judgment of this Court in:

Lawson & Anor v Ajibulu & Ors (1997) 6 NWLR (Pt. 507) p.14

Where Ogundare JSC said that;

“production of documents of title alone is not sufficient to discharge the onus on a plaintiff to prove the title he claims; he must go further to trace the root of his title to one whose ownership of the land has been established”.

One of the ways to succeed in a claim for title to land is for the plaintiff to plead a continuous chain of devolution. That in effect amounts to tracing his root of title. Thereafter he must lead evidence to sustain the pleadings. Productions of documents of title are necessary as they make oral evidence more credible.

In tracing the root of his title the plaintiff/appellant pleaded in paragraphs 1, 7, 8, 9, and 10 as follows:

1. The plaintiff is the Administrator and sole surviving beneficiary of the estate of Yussuf Ayanwale who died intestate in Lagos on the 29th day of July, 1982.
2. Under and by virtue of deeds of conveyance dated the 12th day of July 1954 and registered as No.7 at page 7 in volume 1003 of the register of deeds kept in the office at Lagos and another dated the 17th day of July, 1961 and registered as No.36 at page 36, in volume 489 of the register of deeds kept in the office at Ibadan, now Lagos the said piece or parcel of land was vested in the late Yussuf Ayanwale and his predecessor in title in fee simple free from all incumbrances.
3. The plaintiff further avers that the said parcel of land forms a portion of Ojomu Eyisha family land which has been in the possession of the said family from time immemorial until in 1913 a portion including the land in dispute was sold by the said family to the predecessor in title of Yussuf Ayanwale.
4. Since 1913 the predecessor in title of the said Yussuf Ayanwale remained in possession and exercised maximum rights/acts of ownership thereon without let or hindrance until same was conveyed to the Late Ayanwale in 1961.
5. The Late Yussuf Ayanwale remained in peaceable possession and exercised maximum acts of ownership on the said parcel of land without let or hindrance until his death in 1982.

He led evidence in support of his pleadings thus:

“I know the land in dispute at No. 2A Adeshiyan Street Palm Grove. The land was originally owned by Ojomo Eyisha family, my late father bought the land from one Alimi Orishasola….this is the Deed of Transfer – Exhibit B. the document vesting title in Alimi Orishasola was passed to me. This is the document – Exhibit C.

I know late Yusuf Ayanwale. He was my father. He died on the 29th July 1982. After his death I obtained letters of Administration. This is the Letter of Administration (see Page 123 of the Record of Appeal).

To my mind the above extract from the testimony of the plaintiff/appellant shows that he traced the root of his title to Ojomo Eyisha family whose ownership of the land has been established and he linked his deed of conveyance to the established land owning family.

Furthermore all the relevant facts in the relevant exhibits which show root of title of the plaintiff were pleaded. Where the plaintiff and the defendant trace their title to an established owner, the 1st to purchase the land is regarded as the owner of the land. He who is first in time has a better claim in Law and Equity. See:

Adelaja v Faroiki (1990) 2 NWLR (Pt 131) P.137.

My Lords, the plaintiff/appellant and the defendant/respondent trace their title to an established owner, the Ojomo Eyisha family. How the Ojomo Eyisha family came on the land is not in issue as none of the parties contests that family’s ownership of the land. Exhibit B shows that the plaintiff/appellant purchased the land in 1961, while Exhibit J shows that the defendant purchased the land in 1973. The plaintiff/appellant has a better title to the land. He is the rightful owner of the land in dispute.

Section 123 of the Evidence Act states that:

“123. Where any document, purporting or proved to be twenty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested”.

Where a person has been in possession of land for 20 years or a long time and he produces from his custody his title deeds, the custody is proper. By the provisions of section 123 of the Evidence Act if documents are not less than 20 years at the time of trial in which they are to be used the court will presume that they were properly signed by the person whose signature they bear.

This reasoning is founded on necessity and convenience bearing in mind that it is difficult and at times impossible to prove the signature, handwriting or execution of documents over 20 years old as most of the people acquainted with the signature etc would be dead, or if alive their memories may have faded.

Exhibits B and C are Conveyances which show the plaintiffs/appellants root of title. They were executed in 1954 and 1961, well over 20 years before proceedings commenced in this case. The presumption is that the documents supra are genuine. This is so as the adverse party does not dispute them, and they are over 20 years as at the time proceedings in which they were to be used commenced. Evidence led and quite rightly found by the learned trial judge is that the respondent was in trespass. Proof of ownership is prima facie proof of possession. The presumption being that the person with title to the land is in possession. Once the court finds that a party has a better title to the land, a claim for trespass and injunction are easily sustained, did the injunction pronounced is of the perpetual type that is for all time.

In the light of all that I have been saying, the appeal is allowed. The judgment of the Court of Appeal is set aside and the judgment of the High Court is restored.

The appellant is entitled to the costs of this appeal which I assess as N50,000.00.

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SC.90/2004

Senator Yakubu Garba Lado & Ors V. Congress For Progressive Change (Cpc) & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

The appeals are against the judgment of the Court of Appeal Holden at Abuja in appeal No. CA/A/232/2011 delivered on the 20th day of April, 2011 in which the court allowed the appeal of the present 1st – 3rd respondents against the judgment of the Federal High Court, Holden at Abuja in Suit No. FHC/ABJ./CS/126/2011 delivered on the 25th day of February, 2011 granting the claims of the plaintiffs, now appellants before this court.

On the 3rd day of February, 2011 the appellants in SC/157/2011 caused an originating summons to be issued against the present respondents therein in which they called for the determination of the following questions:-

”1. WHETHER having regard to Section 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 85 and 86 of the Electoral Act, 2010 (as amended), the 1st defendant is not bound to submit to the 4th defendant the names of the plaintiffs who were screened, cleared and duly elected by majority of lawful votes cast by accredited delegates at the primary election held on the 15th day of January, 2011 by the Katsina State Congress for offices of Governor, Senate, House of Representatives and State House of Assembly for the 2011 general election, which primaries were witnessed and endorsed by the INEC designated Monitoring Team.

2. WHETHER having regard to the combined effect of Section 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 87(1)(4) and (6) of the Electoral Act, 2010 (as amended) which among other things guarantee, recognize and prescribe the mode of conducting party primaries only on democratic principles or basis and which enjoins parties to submit to Independent National Electoral Commission (INEC) the names of candidates who emerged winners at state congress of the party, the 1st and 2nd defendants have the power to disqualify or reject plaintiffs candidature which was the choice of the delegates at the state congress, and adopt instead by arbitrary fiat, the 6th defendant for the office of Governor of Katsina State and some other unknown persons as candidates of the 1st defendant for Katsina State Constituencies in respect of Senate, House of Representatives and Senate (sic) (State) House of Assembly for the 2011 general elections.
3. WHETHER in view of Sections 33 and 87 (4) of the Electoral Act, 2010 (as amended) and having acquired vested interest in the party ticket as the duly elected candidate of 1st defendant in the primary election of the 1st defendant, conducted at the Katsina State Party Congress held on 15th January, 2011 general election, the plaintiffs candidature can be rejected, disregarded, revoked, reversed, annulled, reassigned to, or be substituted with 6th defendant, in respect of governorship and or any other unknown persons for Katsina constituencies in respect of Senate, House of Representatives and State House of Assembly for the 2011 general elections when the plaintiffs being still alive, have not withdrawn their candidature to contest on the platform of the 1st defendant at general election schedule to hold in April, 2011 for the elective offices.
4. IF QUESTION 3 is answered in the negative, whether having regard to Section 221 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the plaintiffs, are in the eyes of the law, the candidates of the 1st defendant, entitled to all the benefits of their candidature as flag bearers of the 1st defendant, eligible to contest and be voted for on the platform of the 1st defendant in respect of the office of the Governor, Senate, House of Representatives and State House of Assembly in Katsina State at the 2011 general election”.

In consequence of the above questions, the plaintiffs claimed the following reliefs.-

A DECLARATION that by virtue of Section 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 85 and 86 of the Electoral Act, 2010 (as amended) the 1st defendant the name of plaintiffs who were screened, cleared and duly elected by majority of lawful votes cast by accredited delegates at the primary election or congress in Katsina State Chapter of Congress for Progressive Change (CPC) held on 15th January, 2011 to elect the Katsina State party candidates for elective offices of Governor, Senate, House of Representatives and State House of Assembly in Katsina State at the 2011 general election which primaries were witnessed and endorsed by the INEC designated Monitoring Team.

2. A DECLARATION that the combined effect of Section 221, 222, 223 and 228 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 87(1)(4) and (6) of the Electoral Act, 2010 (as amended) which among other things guarantee, recognize and prescribe the mode to conducting party primaries only on democratic principles or basis, and enjoins parties to submit to the Independent National Electoral Commission (INEC) the name of candidates who emerged winner at the State Congress of the party the 1st and 2nd defendants have No power to disqualify or reject plaintiffs being the choice of the delegated at the Katsina State Congress held on 15th January, 2011 in respect of the elective offices of Governor, and constituencies of Senate, House of Representatives and State House of Assembly for the 2011 general elections.
3. A DECLARATION that the 1st and 2nd defendants cannot by arbitrary fiat or through any illegal method adopt the 6th defendant for the office of Governor of Katsina State and any other unknown persons as candidates of the 1st defendant for Katsina State Constituencies in respect of Senate, House of Representative and State House of Assembly for the 2011 general elections.
4. A DECLARATION that in view of Sections 33 and 87 (4) of the Electoral Act, 2010 (as amended), and having acquired vested interest in the party ticket as the duly elected Gubernatorial Senatorial, House of Representatives and State House of Assembly by being candidate of 1st defendant in the primary election of the 1st defendant, conducted in Katsina, Katsina State, the plaintiffs’ respective candidature CANNOT be rejected, disregarded, revoked, reversed, annulled re-assigned to, or be substituted with 4th defendant or any other person, when plaintiffs is still alive, and have not withdrawn their respective candidature to contest on the platform of the 1st defendant in the general election scheduled to hold in April, 2011 for the said elective offices.
5. A DECLARATION that by virtue of Section 221 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the plaintiffs are in the eyes of the law, the candidate of the 1st defendant, entitled to all the benefits of their candidature as flag bearers of the 1st defendant, eligible to contest and be voted for on the platform of the 1st defendant in respect of the offices of Governor, Senate, House of Representatives and State House of Assembly in Katsina State at the 2011 general election.
6. A DECLARATION that any acts, omission, commission, failure, refusal or neglect, by 1st, 2nd and 3rd defendants to take all necessary steps required under the Electoral Act, 2010 (as amended) to ensure that plaintiffs’ names are duly submitted and published before the date of the election and placed on the ballot for use in the conduct in Katsina State Gubernatorial election in the 2011 general election is illegal and unconstitutional.
7. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd defendants, their servants, agents and or privies from recognizing, or submitting to 4th defendant the name of any person other than that of 1st plaintiff and his nominated running mate in person of ABDULAZIZ MUSA YAR ADUA as candidate of 1st defendant for the office of Governor and Deputy Governor of Katsina State respectively at the 2011 general election.
8. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd defendants’ their servants, agents and or privies from recognizing, or submitting to 4th defendant the name of any person other than that of 2nd – 47th defendants candidates of 1st defendant for the elective offices of Katsina State constituencies in the Senate, House of Representatives and House of Assembly respectively at the 2011 general election.
9. AN ORDER OF PROHIBITORY INJUNCTION restraining the 4th defendant, its agents, servants or privies from accepting and giving recognition to any other persons other than the 1st plaintiff and his nominated running mate in person of ABDULAZIZ MUSA YAR ADUA as Gubernatorial and Deputy Gubernatorial candidates of the 1st defendant at the 2011 general election into the office of the Governor of Katsina State.
10. AN ORDER OF PROHIBITORY INJUNCTION restraining the 4th defendant, its agents, servants or privies from accepting and giving recognition to any other persons other than the 2nd – 45th plaintiffs as candidates of the 1st defendant at the 2011 general election into the legislative offices of the various constituencies in Katsina State.
11. AN ORDER OF MANDATORY INJUNCTION compelling the 4th defendant to provide for and place on the ballot paper to be used for the Governorship, Senate, House of Representatives and State House of Assembly election in Katsina State at the 2011 general election, the name of plaintiffs as candidates of 1st defendant in respect of the offices to which party primaries tickets; in the event that 1st defendant fail or neglect to so submit the aforesaid names as its candidates for the offices”.

As stated earlier in this judgment, the trial court granted all the reliefs of the plaintiffs/appellants resulting in an appeal by the 1st – 3rd respondents in this court which appeal was allowed and the judgment of the trial court set aside. The instant appeals are against that judgment.

The issues for determination, as identified by learned senior counsel for the appellants in SC/157/2011 in the appellants’ brief deemed filed on 15th November, 2011 and adopted in argument on even date, are as follows:-

1. Whether in view of the uncontroverted evidence before the lower court, their Lordships correctly constructed and applied the relevant provisions of the constitution and the electoral act canvassed by the appellants before them, in reversing the decision of the trial court that the 2nd – 43rd appellants herein were the duly nominated candidates of the 1st respondent for the various national and state legislative offices in the general elections of April, 2011 in Katsina State;
2. Whether the learned justices of the Court of Appeal did not occasion a miscarriage of justice when they discountenanced the appellants’ respondents notice, notwithstanding that the lower court had granted leave in respect of the said respondents’ notice, of the 4th of April, 2011;
3. Whether the lower court was not wrong in relying on materials contained in incompetent processes before the court to reverse the trial courts judgments

On the other hand, learned senior counsel for the 1st – 3rd respondents in the brief of argument filed on 31st October, 2011 formulated the following two (2) issues for determination:-

1. Whether considering the evidence on record before it, the relevant provisions of the constitution of the Federal Republic or Nigeria, 1999, the Electoral Act, 2010 (as amended) and the constitution of the Congress for Progressive Change (CPC), the Court of Appeal correctly held that the appellants were not validly nominated candidates of the 1st respondent for the various offices they aspired to in Katsina State in the 2011 general election
2. Whether the court of Appeal rightly made use of the processes contained in the record before it in arriving at its decision allowing the appeal of the 1st – 3rd respondents

The two (2) issues formulated by learned counsel for the 4th respondents, DEMOLA BAKRE, Esq, in the brief of argument filed on 31st October, 2011 are the same as appellants’ issues 1 and 3 earlier reproduced in this judgment. I therefore see no need to reproduce them herein.

The two issues formulated by learned counsel for the 5th and 6th respondents, HASSAN M. LIMAN, SAN in the brief of argument deemed filed on 15th November, 2011 are very simple and straight forward. They are:-

1. Whether the Court of Appeal was right when it held that the 3rd respondent was validly nominated against the 2nd – 43rd appellants regards being had to the provision of the constitution of the Congress for Progressive Change CPD) (the Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended);
2. Whether the court of Appeal was right in holding that the 1st – 43rd respondents failed to prove sufficiently that they are the valid candidates of the 1st respondent in Katsina State general election regards being made to the evidence presented vis-a-vis the Electoral Act, 2011, constitution of Republic of Nigeria, (as amended).

With respect to appeal no SC/334/2011, the issues for determination as identified by learned counsel for the appellant, DEMOLA BAKRE ESQ in the appellant brief dated 21st September, 2011 are as follows:-

1. Whether the Court of Appeal rightly overruled the appellant’s preliminary objection on the competence of Grounds 1, 2 and 3 of the respondents’ notice of appeal.
2. Whether the Court of Appeal rightly held that the party primaries of the 1st respondent conducted on 15th January, 2011 was invalid.
3. Whether the Court of Appeal was right to have held that the 3rd defendant was the properly nominated candidate of the 1st respondent when most of evidence relied on by the 3rd respondent particularly exhibit H were inadmissible.

The facts of the case are simple and include the following.

The appellants in SC/157/2011 and the 3rd respondents are card carrying members of the Congress for Progressive Change (CPC), a registered political party in Nigeria, who participated in one primary election of the party or the other scheduled to elect candidates to represent the political party in the general election held in April, 2011. The political party is the 1st respondent while the 2nd respondent is the National chairman of the party. The 4th respondent and appellant in SC/334/2011 is the Katsina State chairman of the party while the 5th and 6th respondents are some of those responsible for conducting the April, 2011 general election in Nigeria.

It is the case of the appellants that they are the validly nominated candidates of the 1st respondent to contest the general election of April, 2011 into various elective positions in the National and state constituencies following a primary election conducted on the 15th day of January, 2011 but that the 1st respondent refused to forward their names to the 5th respondent as its duly nominated candidates for the said elections contrary to the provisions of relevant statutes etc.

On the other hand, the 1st – 3rd respondents contend that there was no primary election of the 1st respondent on the 15th day of January, 2011 in which the appellants emerged as nominated candidates of the party; that it was on 13th January, 2011 that the primaries of the 1st respondent in Katsina State was conducted and the candidates for the various elective positions nominated, including the 3rd respondent; that the said primaries of 13th January, 2011 was contested by some of the appellants who lost same and that the names of the duly elected candidates of the party to contest the said general election were duly forwarded to the 5th respondent on the 31st day of January, 2011 by the 1st respondent in compliance with the law.

From the facts of the case, it is very clear that while appellants claim their right to represent the 1st respondent in the general elections of April, 2011 as emanating from a primary election conducted on the 15th day of April, 2011, the 1st – 3rd respondents deny same but claim that the only primary election conducted by the 1st respondent from which its candidates were nominated for the election was held on 13th January, 2011.

The above clearly shows that there were two (2) primary elections for the April, 2011 general elections in Nigeria. It is however the case of the appellants that the primary election of 13th January, 2011 was inconclusive and/or cancelled whiles the 1st – 3rd respondents denied the allegation.

The existence of the two (2) conflicting primaries is eloquently confirmed by the decisions of the lower courts in this matter. While the trial court entered judgment for the appellants based on the results of the primaries conducted on the 15th January, 2011, the Court of Appeal reversed same and upheld the nomination of candidates at the primaries conducted on the 13th day of January, 2011.

From the above undisputed facts, it is clear that the fundamental issue that called for determination by the trial court and which was decided was which of the two (2) lists of candidates emanating from the two primaries constitutes the duly nominated candidates of 1st respondent for the general election in question.

It was with the above state of facts and evidence on record that when the appeals came to be heard on the 15th day of November, 2011, this court called on learned counsel for the parties to address the court on the issue as to whether the courts have jurisdiction to entertain the suit having regards to the provisions of section 87 (4)(b)(ii) (c)(ii) and (9) of the Electoral Act, 2010 (as amended). Subsections (4)(b)(ii) and (c)(ii) provide inter alia:

“The aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirants name shall be forwarded to the Independent National Electoral Commission (INEC) as the candidate of the party…”

On the other hand subsection (9) of Section 87 provides thus:

“(9) Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election may apply to the Federal High Court or the High Court of a State or F.C.T, for redress”.

Upon application by learned senior counsel for the appellants RICKY TARFA ESQ, SAN, A.J OWONIKOKO ESQ, SAN was granted permission to address the court on the issue of jurisdiction as raised by the court.

It is the submission of learned senior counsel for the appellants that where legislation places limitation on the liberty of political parties to nominate candidates for election, the common law rules of non-interference with the liberty of political parties on nomination of candidates becomes modified as in Section 87(9) of the Electoral Act, 2011 (as amended); that the right of action envisaged under Section 87(9) of the Electoral Act, 2011(as amended) avails only an aspirant at the primaries; that the instant case centers on the failure of the party (1st respondent) to forward the names of the appellants to INEC having won the party primary election; that in the circumstance the courts have jurisdiction to entertain the matter since it is the claim of the plaintiff that determines or is relevant to the determination of the issue of the jurisdiction of the court.

On his part, learned senior counsel for the 1st – 3rd respondents, JOHN O. BAIYESEA ESQ, SAN submitted that it is the duty of a political party to conduct primaries and that the 1st respondent did so on 13th January, 2011; that some of the appellants participated in the said primaries but lost; that if the appellants were dissatisfied with the conduct of the primaries they ought to have gone to court to challenge the primaries not to conduct a fresh primaries; that appellants have no claim against the primaries of 13th January, 2011, finally that the courts have no jurisdiction in the matter.

Learned counsel for the 4th respondent and appellant in SC/334/2011, DEMOLA BAKRE ESQ did not make submission on the issue of jurisdiction but simply conceded the appeal, in SC/157/2011.

However, learned counsel for the 5th and 6th respondents, AHMED RAJI ESQ submitted that the court has a limited jurisdiction under Section 87(9) of the Electoral Act, 2011 (as amended) which can only be set in motion if there was a primary election; that where there is a dispute as to whether there was a primary election or not or whether there was one primary or two or more the courts would have no jurisdiction to determine those issues and that the courts in this case have no jurisdiction to determine the matter.

At the conclusion of arguments counsel for all parties agreed that the decision in SC/157/2011 will bind them in SC/334/2011.

The issue of jurisdiction is very important in adjunction and the term has been variously described by jurists including being described as the life blood of any adjudication; the fiat, the stamp of authority to adjudicate – see Katto v. CBN (1991) 22 NSCC Pt. 1) 736 at 751-752, (1991) 9 NWLR (Pt.213) 126 at 149.

The fundamental importance of the issue of jurisdiction is under-scored by the principle of law to the effect that it can be raised for the first time in the trial court or the court of Appeal or even the supreme court and by any of the parties or by the court suo motu – see Oloriade v. Oyebi (1984) 1 SCNLR. 390: Ezomo V. Oyakhire (1985) 1 NWLR (Pt. 2) 195 (1985) 2 SC 260 at 282.

There is however a proviso to the above principle particularly as it relates to the power of the court raising an issue of jurisdiction suo motu. The proviso is to the effect that the court, in that circumstance, must give the parties, as represented by counsel, the opportunity to be heard thereon before proceeding to determine the issue in its judgment. The proviso is very much in accord with prudence, common sense and the principles of fair hearing – see Katto v. CBN. Supra.

In the instant case, the issue was raised by the court suo motu but counsel for all parties was duly given opportunity to be heard thereon and were so heard.

By the locus clasicus case of Madukolu v. Nkemdilim (1962) 1 ALL NLR (Pt. 4) 587; (1962) 2 SCNLR 341 this court laid down the proper guidelines in determining the issue of jurisdiction of a court of law. This court stated that a court is competent when:-

(a) it is properly constituted as regards members of the Bench, and no member is disqualified for one reason or another,

(b) the subject matter of the case is within its jurisdiction and no feature in the case which prevents the court from exercising its jurisdiction; and,

(c) the case comes before the court initated with due process of law and upon fulfillment of a condition precedent to the exercise of jurisdiction.

It is settled law that any defect in the competence of a court is fatal because, the proceedings will be a nullity however well conducted.

The instant case is an election related matter in the sense that it is a pre-election matter arising from the nomination exercise allegedly conducted by the 1st respondent to elect the candidate to represent it in the April, 2011 general elections in Nigeria. The issue of jurisdiction raised in this case is therefore as it relates to the competence of the courts to hear and determine matters relating to the nomination of candidates by political parties for general elections which exercise has generally been held by the courts to be within the exclusive domestic jurisdiction of the political parties to the exclusion of the courts of law. It is in line with the above that the courts have held that the question of the candidate a political party will sponsor in an election is in the nature of a political question which is not justiceable in a court of law, see Onuoha v. Okafor (1983) SCNLR 244: (1983) NSCC 494.

However, in 2006 following the enactment of the Electoral Act, 2006 particularly Section 34 thereof the absolute powers of political parties in relation to nomination of their candidates for elections was tampered with by the legislature only to the extent and in relation to change/substitution of a nominated candidate whose names and particulars had been forwarded by the party to the Independent National Electoral Commission (INEC) one hundred and twenty (120) days to an election. The said Section 34 required a political party intending to change/substitute any of its candidates for any election to inform INEC of such a change in writing not later than sixty (60) days to the election and must assign cogent and verifiable reasons for the intended change/substitution, except in the case of the death of the candidate to be changed or substituted.

The above provision was designed to bring sanity to an otherwise chaotic situation hitherto existing in the electoral system whereby the political parties could arbitrarily change candidates even on the eve of an election. It is however, very important to emphasize the point that Section 34 of the Electoral Act, 2006 did not interfere with nor did it alter or modify the principle that the question as to who is a candidate of a political party for any election is a political question within the domestic jurisdiction of the political parties and consequently not justicable. What Section 34 did was to restrict the power of the political parties to change or substitute their candidates at will and at anytime.

However, the present Electoral Act, 2010 (as amended) does not contain any provision for substitution or change of a nominated candidate once the nomination is made. In the present Electoral Act, section 87 deals with the processes leading to the nomination of a candidate by a political party for any election and provided in subsection 4 (b)(ii) and (c)(ii) that the aspirant who emerges at the primaries with the highest number of votes “shall be declared the winner of the primaries of the party and the aspirants name shall be forwarded to the Independent National Electoral Commission as the candidate of the party”, whether the nomination relates to the office of Governorship of a state, senatorial or House of Representatives, or state House of Assembly seats, respectively.

The power of an aggrieved aspirant who is not satisfied with the conduct of the primaries by his party to elect a candidate must bring himself within the preview of section 87 (4)(b)(ii); (c)(ii) and (9) of the Electoral Act, 2010 (as amended), supra. It is only if he can come within the provisions of those sub-sections that his complaints can be justiceable as the courts cannot still decide as between two or more contending parties which of them is the nominated candidate of a political party; that power still resides in the political parties to exercise. The enactment is not designed to encourage factions emerging from the political parties with each electing its candidates but claiming same to be candidates of the political party concerned.

In the instant case, evidence on record shows that there were two primaries and the contending parties claim their right to represent the 1st respondent not from a single primaries conducted by the 1st respondent.

What then are the facts as stated in the affidavits and counter affidavits, relevant to the issue under discussion

In the affidavit in support of the originating summons the appellants deposed, inter alia as follows:-

“9. that I indicated intention to contest for the office of the governor of Katsina State in the forthcoming general elections stated for 2011;

11. that I appeared before the screening panel after which the panel notified me in writing that I was successful and advised me to commence full preparation of the gubernatorial primaries fixed for 15th January, 2011;
12. that I have been informed by the 2nd – 45th plaintiffs on the 15th January, 2011 at the venue of the congress at about 1.00pm and I verily believe them that they were screened and certified successful to contest for their respective offices;
13. that subsequent to the screening exercise, the State executive committee notified the 4th defendant of the dates of the primaries and invited them to attend for the purpose of observing the process and outcome. Copy of the said letter is hereto attached and marked as Exhibit C;
14. that the 1st defendant nominated the following persons;

(i) Engr. Suleiman Adamu (ii) Dr. A Yabagi (iii) A. Ahmed and (iv) Dr. A. D. Usman, who were responsible for the conduct and supervision of the election primaries in to all elective offices;

15. that the 4th defendant on ifs own part nominated officials whose role was to monitor and supervise the 1st defendant party’s primaries see king to fill all vacant elective position in the State;
16. that after the primaries which was under close supervision and monitoring of the officers of the 4th defendant, I was declared winner having poled a total of 95,953 votes;
17. that the 2nd – 45th defendants also won and been declared the winner/flag-bearer of the 1st defendant in their respective constituencies;
18. that consequent upon my emergence, and my nomination of a running mate, the State executive submitted the result of the party congress and list of successful candidates to the National Chairman of the 1st defendant in person of Prince Tony Momoh;
19. that a copy of the result and list of successful candidates was delivered to the 4th defendant for its advance information and records pending when National Secretariat of the Party would officially forwarded the list of candidates to the 4th defendant.

A copy of the State chapter report on the congress is attached and marked Exhibit E; and,

24. that up till now, I am being denied access to INEC FORMS F001 and F002 by the 1st and 2nd defendants which has paved way for the submission of the 6th defendant’s name to the 3rd defendant.

In the affidavit of the 1st and 2nd respondents in defence of the originating summons, the National Secretary of the 1st respondent deposed, inter alia to the following facts:-

“4 (ii) Paragraph 2 of the main affidavit in support of the originating summons is denied as the 1st plaintiff was not duly elected as a Gubernatorial flag bearer of the 1st defendant to stand in the April, 2011 general elections. The purported Katsina primaries elections of 15/01/2011 was not authorized by the 1st defendant and the 1st plaintiff has been disqualified to be fielded as a CPC candidate for election on account of his disposition to violence and disregard for party principles.

(iv) In further answer to paragraph 7(iii) above, all the alleged primary elections by which the plaintiffs purportedly hinge their respective declaration of victories were conducted on 15/01/2011 without the authorization or ratification of the 1st defendant, or recognition of the 1st defendant.

(xiii) Further to the above rebuttal, the 1st plaintiff was not the declared winner and gubernatorial flag bearer of the CPC at the primary election of 13/01/2011, the victors of which were sent to the 4th defendant, and there was no cause or reason for him to withdraw his candidature as claimed in paragraphs 24, 25 and 26 of his affidavit.

(xv) The depositions in paragraph 29 of the main affidavit are vehemently denied to the extent that it is not true that the names of the plaintiffs had been substituted; much as if is not correct to label the non-submission of their names as null and void.

5. That I know as a fact:

(a) That the responsibility for initiating; coordination and conducting party primaries for elections into governorship, federal and state assemblies is the exclusive preserve of the Board of Trustees and notional executive council of the 1st defendant is attached as Exhibit ‘A’.

(b) That the Board of Trustees had in the exercise of its power stated above served the 4th defendant with notice of convention and invitation to observe and monitor convention and party primaries on the 24th day of December, 2011.

(c) Some circumstances set in and the party could not keep to the dates 24th December, 2011 in consequence of which a notice of change of dates was further served on the 4th defendant on 5th day of January, 2011. A copy of the letter is attached hereto as Exhibit ‘B’.

(d) The 1st defendant intimated by its letter of 5th January, 2011 that party primaries of Katsina State was to hold on the 10th day of January, 2011 with the possibility of re-run on the 11th and or 13th January, 2011 as the case may be.

(f) That the 1st defendant consequently organized the Gubernatorial, Federal and State Assembly primaries for Katsina State on the 8th day of January, 2011 under co-ordinatorship of a three-man committee chaired by Col. Jibrin Muhammad Hassan (Rtd), which was however inconclusive and annulled by the party on account of violence and thuggery. The letter appointing and mandating the committee is attached as Exhibit ‘C’.

(g) The primaries held on the 8th day of January, 2011 were inconclusive and the 1st defendant ordered for rerun, with an expanded ten-man committee chaired by the same by Cot. Jibrin Muhammad Hassan (Rtd), which was eventually held on the 13th day, of January, 2011 in line with the notice served on the 4th defendant by a letter dated 5th January, 2011 with reference No. CPC/HQR/INEC/GEN/2011/1 attached here as Exhibit ‘B’.

5. That I know as a fact:

(a) that defendant had at no point in time served the 4th defendant with any notice of a congress or party primary stated to hold on the 11th day of January, 2011;

(b) that re-run eventually held on the 13th day, of January, 2011 in tine with the notice served on the 4th defendant by a letter 5th January, 2011 with reference No. CPC/HQR/INEC/GEN/2011/1;

(c) that result of the re-run held the 13th day of January, 2011 was on the 14th day of January, 2011 served on the 4th defendant which received, acknowledged and accepted the result of the 1st defendant’s party primaries held on the 13th day of January, 2011. A copy of the letter and list served on the 4th defendant in support of the letter dated the 14th day of January, 2011 by which the 6th defendant was declared winner along with successful federal and state assembly members is shown to me and attached hereto as Exhibit ‘D’ respectively;

(d) the list of the successful candidates as submitted to the 4th defendant on the 14th day of January, 2011 by the Chairman National Convention, Congress and Primaries committee of the party was further submitted to the 4th defendant by the 1st defendant (as a party) in INEC FORM CF 001 AND INEC FORM CF 002B (list of candidates) as evidenced and acknowledged by the 4th defendant on the 31st day of January, 2011. The list and acknowledgements are attached hereto as Exhibit ‘E1’ and ‘E2′ respectively.

The appellants did not file a further affidavit challenging the depositions of the National Secretary of the 1st respondent reproduced supra.

Upon going through the affidavit evidence, the lower court in its judgment, particularly at page 823 of the record, stated thus:

“After a careful scrutiny of the documentary exhibits, one critical question that arises looking at the procedure adopted by the 44 respondent that produced the 1st-43rd respondents on one hand and how the third appellant was nominated is which of the candidates was nominated in the primaries in accordance with the Electoral Law”.

The question is whether having regards to the clear issue as found above by the lower court the case of the parties come within the provisions of Section 87(4)(b)(ii); (c)(ii) and (9) of the Electoral Act, 2010 as amended.

It is my considered view that it does not.

As stated earlier in this judgment, section 87 of the Electoral Act, 2010 as amended deals with the procedure needed for the nomination of a candidate by a political party for any election and specifically provided a remedy for an aggrieved aspirant who participated at the party primaries which produced the winner by the highest number of votes- where, however, there is a dispute, as in the instant case as to which of two primaries of a Political party produced the nominated candidate that dispute is not justiceable under the provisions of section 87(4)(b)(ii), (c)(ii) and (9) supra and the courts will have no jurisdiction to entertain same.

While it is settled law that it is the claim of a plaintiff as evidenced in the writ of summons and statement of claim that determines the jurisdiction of the court, where however, from the totality of the pleadings of both parties and the evidence adduced to establish same, it becomes obvious that the court has no jurisdiction with regards to the subject matter of dispute or that the claim, in reality, cannot come within the statutory jurisdiction of the court, the court will take into account the totality of the facts pleaded by the parties and evidence adduced to establish same in determining whether the court has jurisdiction or not.The question becomes from the issues as joined in the pleadings, does the court have jurisdiction

In the instant case, the jurisdiction in question is statutory and is very limited in scope. On the face of the claim it would appear that the courts have jurisdiction under Section 87 (4)(b)(ii);(c)(ii) and (9) of the Electoral Act, 2010 (as amended), if the right being claimed by the appellants and in dispute between the parties arose from the primaries of 15th January, 2011, alone.

Once there arises a dispute as to which of the two primaries conferred a right of candidature on the parties to represent a political party in an erection, the matter is taken outside the preview of Section 87(4)(b)(ii); (c)(ii) and (9) of the Electoral Act, 2010 (as amended)

In conclusion I hold the view that the courts have no jurisdiction to hear and determine the matter in dispute. Consequently suit no. FHC/ABJ/CS/126/2011 and appeal nos. CA/A/133/2011, SC/157/2011 and SC/334/2011 are hereby struck out for lack of jurisdiction.

I order that parties bear their costs.

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SC.157/2011 (CON)

Goodwill & Trust Investment Ltd. & Anor V. Witt & Bush Ltd (2011)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C.

This is an appeal against the judgment of the court of Appeal, Lagos Division, which struck out the suit of the plaintiffs/appellants. The plaintiffs’ claim against the defendant at the trial court are as follows, as per the statement of claim:-

“(i) The sum of N567,941.60k being contractual lease sum on rental of 250 KVA Rolls Royce power generating set for 85 days from 8th June, 1998 to 31st August, 1998 and banking charges of N1,275.00 on Defendants Dishonoured Cheques No. 303 and 304 dated 5th June, 1998 and 30th June, 1998 respectively.

(ii) Return of the plaintiffs’ 250k Rolls Royce power Generating set to the plaintiffs’ yard at 2/4 Sanusi Ibrahim Street Mile 12, Ketu Lagos State.

ALTERNATIVELY

Payment of the sum of N1.5 million naira being the contractual value of the said 250 KVA generating set.

(iii) Rental sum of N6,666.67k daily from 1st September, 1998 until the generator is returned to the plaintiffs, yard.

(iv) The sum of N2,000,000.00 (Two Million Naira only) as general damages for the Defendants breach of contract and detention of Plaintiffs’ power Generating.

(v) Interest in the sums claimed at 21% per annum from 1st September, 1998 until the total accrued sum is paid

and the generator returned.

(vi) The cost of this action.”

Pleadings were exchanged by the parties; to wit there was amendment, and a reply to the amended statement

of defence. Briefly put the plaintiffs leased a 250 KVA Roll Royce Power generating set to the defendant on 5th of June 1998 for an agreed fee of N200,000.00 for an initial period of 30 days. The terms of the lease was signed on 6th of June, and the defendants technicians tested it before it was removed to the site of a third party, Bristow Helicopters Ltd. on 6th June, 1988, the defendant wrote a letter to the plaintiffs repudiating the lease, and in fact stopped the cheque issued to the plaintiffs. The defendant refused to return the generator to the plaintiffs’ yard despite repeated demand.

The defendant denied most of the plaintiffs’ allegations stating that it stopped the cheques it issued to the 1st plaintiff because its client, a third party found the generator to be unserviceable and useless. The third party, Bristow Helicopters Limited complained that the generator failed to work, and the 1st plaintiff was informed of the malfunctioning. In spite of some changes in some parts of the generator, there were still problems; hence the defendant repudiated the contract on 15th of June, 1998. The defendant stated that before it repudiated the agreement, a 500 KVA generator was moved to its client’s site by Tate Industries to avoid further embarrassment the 1st plaintiff have caused it. The defendant denied that it was obliged to return the plaintiffs’ unserviceable generating set to its site having incurred financial loss as a result of the defaulting generating set hired. The defendant therefore counter-claimed as follows against the plaintiffs:-

“(a) The sum of N5,000,000.00 as general damages for the first plaintiff’s breach of contract to supply the

Defendant with a serviceable generator for the use of the latter’s clients.

(b) The sum of N250,000.00 as special damages being the financial cost in providing alternative generating set to the premises of her client.

(c) Interest on the said sum of N5,250,000.00 at 21% from 1st of September 1998 until the total accrued sum is paid.

(d) An order dismissing the claim of the 1st and 2nd plaintiffs with substantial cost against the Defendant for being frivolous, vexatious and an abuse of the process of the court.

(e) Cost against the 1st and 2nd plaintiffs.”

Parties adduced evidence, and the learned trial judge after evaluating same entered judgment in favour of the plaintiffs, but not in the sums claimed, but with certain variations under each head of damages claimed. The defendant was not satisfied with the judgment, so it appealed to the Court of Appeal, which allowed the appeal,

and found thus:-

“The trial court has no competence to entertain the suit for want of competent plaintiff. The appeal being meritorious is allowed. The judgment of the court below is set aside and the plaintiffs suit is hereby struck out with N5,000.00 costs to the appellant.”

The plaintiffs have now appealed to this court on five grounds of appeal against the decision of the Court of Appeal. As is the practice in this court, and according to the rules of this court, briefs of argument were exchanged by the parties, to wit there is also an appellants, reply brief of argument. The briefs were adopted by learned counsel at

the hearing of the appeal. The learned counsel for the appellants specifically referred to pages 47 and 258 of the record of proceedings, whereas the learned counsel for the respondent referred to pages 11 and 12 of their brief

of argument.

The appellants in their brief of argument formulated six issues for determination, which are:-

“7. Whether the Court of Appeal was right in its decision that the 1st Plaintiff/Appellant was not a juristic person.

2. Whether the Court of Appeal was right to have determined this appeal on the sole question of the juristic personality of the 1st Plaintiff/Appellant and the inadmissibility of ‘Exhibit A’ without the leave of the court of

Appeal – “Exhibit A,” having been admitted at the trial without objection to its admissibility.

3. Whether the Court of Appeal did not fail in its bounden duty to do substantial justice when it failed to call further evidence to resolve the fundamental question of the juristic personality of the 1st Plaintiff/Appellant or in the alternative order a new trial by the trial court for a determination of the crucial point of the juristic personality of

the 1st plaintiff/Appellant.

4. Whether the Court of Appeal did not err in law and occasion a serious miscarriage of justice when it sacrificed the doing of substantial justice on the platter of technical argument.
5. Whether the Court of Appeal did not err in law when it allowed the Defendant/Respondent to get away with its approbation and reprobation by using the law of the land as an instrument of fraud.

The above issues were adopted by the respondent.

Basically, this appeal revolves around the juristic personality of the appellants, and a single issue would have

sufficed for the determination of the appeal. The numerous issues formulated wouldn’t have been necessary, but in the interest of justice, and in order to satisfy the parties that substantial justice is being done, I will consider the argument proffered to cover each issue in the treatment of this appeal. I will commence with issues (1) and (3) in the appellants’ brief of argument. The learned counsel for the appellants in canvassing argument under this issue, has contented that the learned Court of Appeal, having found that the trial court failed in its bounden duty to determine a question duly submitted to it for determination, also failed to do the right thing that would ensure the doing of substantial justice between the parties when it failed to take steps to resolve the fundamental question of the juristic personaliry of the 1st plaintiff/Appellant.

He sought the aid of Order 1 Rules 19(2) and 20(3) on general powers of the Court of Appeal.

According to learned counsel, the Court of Appeal, having failed to do that, this court could right the wrong, pursuant to order 2 Rule 12 (1) and, (2) of the Supreme Court Rules. He placed reliance on the cases of Ibrahim v. Ojomo 2004 4 M.J.S. page 143, Akibu v. Opaleye 1974 11 SC. 189, and 1984 4 S.C. 84.

Learned counsel for the appellants also referred this court to the cases of Adebayo v. Shogo 2005 M.J.S.C. page

43, Adisa vs Oyinwola 2000 6 S.C. part 11 page 47, Owoso v. Adeleke 2004 30 W.R.N. page 93, and Attorney-General of Oyo State v. Fairlakes Hotel 1982 2 S.C. page 7.

In reply, the learned counsel for the respondent referred to the pleadings of the parties where he said issues were joined on this issue of juristic personality. Even though the learned trial judge omitted to make a finding on this

issue, the Court of Appeal reviewed the proceedings of the trial court under section 16 of the court of Appeal Act and made a finding on the point. The Certificate of Incorporation admitted in evidence was certified by the

Registrar of the High Court, an act which the learned counsel submitted was not appropriate, as a Certificate of Incorporation can only be certified by the office of the Registrar General who is in custody of the certificate of Incorporation. He referred to sections 97 (1) (e), (2)(c), 111 and 112 of the Evidence Act, cap 112, 1990, Sections 36(1),634, (i) and (2) of the Companies And Allied Matters Act, 1990, and the case of Okulade v. Alade 1976 All NLR 56. Learned Counsel finally submitted that the burden of proof that the 1st Plaintiff/Appellant is a juristic person lies on the appellants, and Exhibit A do not meet the statutory requirements referred to above, so the Court of Appeal was right in holding that the Appellants failed to prove that the 1st appellant is a juristic person. He placed reliance on the cases of P.G.S.S. Ikachi v. Igbudu 2005 12 NWLR part 940 page 543, 2001 NWLR part 712 page 508, Madukolu & Ors. v. Nkemdilim 1962 All NLR page 581, and sections 135(1) and (2) and 136 of the Evidence Act, supra. Learned counsel for the respondent submitted that the plaintiffs/appellants had the burden of proof to discharge by tendering a genuine Certificate of Incorporation from the Company Registration Authority, which they failed to do woefully.According to learned Counsel Exhibit A is a document within the definition of Section 2 of the Evidence Act, 1990, it is a public document within the meaning of Section 109 of the Evidence Act, and can only be

admissible in Evidence under Section 112 only, on the condition that it was certified by the appropriate officer under Section 11A of the Evidence Act and Section 36(1) of the Companies and Allied Matters Act, 1990.

In order to deal with the submission above it is imperative that I reproduce some salient averments in the plaintiffs’ statement of claim here below. They read as follows:-

“1. The first plaintiff is a registered company under the laws in Nigeria with office at 214, Sanusi Ibrahim Street, Off Oniyanrin Street, Mile 12, Near Ketu, Lagos State.

2. The second plaintiff is the Managing Director and Chief Executive Officer of the 1st Plaintiff with the same address.”

In its amended statement of defence the defendant joined issues on the above as follows:-

“2. The defendant denies paragraphs 1, 2, 5, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18 and 19 of the statement of claim and shall at the trial of this suit put the plaintiffs to proof (sic) strictly the allegation of facts contained in the said paragraphs.

3. The Defendant admits paragraph 1 of the statement of claim only to the extent that the first plaintiff has its office at 2/4, Sanusi Ibrahim Street, off oniyanrin Street, Mile 12, Near Ketu, Lagos State but denies the allegation that the plaintiff is registered under the relevant laws of the Federal Republic of Nigeria.
4. In answer to paragraph 2 of the statement of claim, the second Defendant shall at the trial of the suit be

required to proof (sic) the allegation of facts contained therein.

To prove the above averments, the 2nd plaintiff testified thus:-

“I am Johnson Omoniyi Ashaolu. I am a Fellow of the Institute of Chartered Accountants of Nigeria. I know the 1st plaintiff and I am it’s Managing Director. It is a Registered company. This is it’s original Certificate of Incorporation.

Yes I have the certified True copy of my company’s certificate of Incorporation. This is it. (certified True copy) (Raises it up). Counsel seeks to tender it. Admitted as EXHIBIT “A”.”

Under Cross-examination, the 2″d plaintiff had the following to say on the efficacy of Exhibit A.

“Exhibit A is the certified true copy of the Certificate of Incorporation of the 1st plaintiff. It was certified at the office of the Commissioner of Oaths at the Lagos State High Court Ikeja.”

It is not in dispute that the trial court did not make a finding on this issue of the juristic personality of the 1st plaintiff. There was ample and sufficient evidence before the court to enable it make a finding on the issue. In fact, apart from the evidence, the learned counsel for the defendant addressed the court on this issue in his address. Consequently, the lower court was seized of all the materials required to invoke the provision of Section 16 of the Court of Appeal Law 1976 to review the case before it. It did not need any other further evidence before making

the finding it made on the issue. In similar vein this court is also seized of all the facts required, and does not need to resort to order 2 Rule 12 (1) and (2) of the Supreme Court Rules supra for any further evidence, as urged by the learned counsel for the appellant. A situation where further evidence will be necessary arises only when the

evidence relevant to the issue in controversy to determine an issue and ensure substantial justice is absent and deplete from the proceedings. This court or the court below does not ordinarily go out of its way to fish for evidence to fill a vacuum that does not exist in a case, just to satisfy a party, when in fact all the pleadings and evidence, that are necessary material are already part of the record of proceedings before it.

It is on record that the plaintiffs tendered a photocopy of a document which was certified by the registrar of the High Court of Lagos State, Ikeja, when in fact, if the 2nd plaintiff was desirous of tendering only a copy of the registration document, it should have been certified by an official of the Corporate Affairs office, the document

being a public document that is subject to the provisions of Sections 109 – 112 of the Evidence Act supra. But

then one should be mindful of the fact that the original copy of the certificate of Incorporation was stated to be in possession of the plaintiffs in this case as is contained in the record of proceedings vide the evidence of the 2nd plaintiff which has been reproduced above.

The pertinent question to ask here, is, if they had the original certificate and actually brought it to court on the day of hearing, why did the witness not tender it I am inclined to subscribe to the argument of the respondent that perhaps the plaintiffs did not possess the original Certificate of Incorporation. If they didn’t, there was nothing that prevented them from tendering the copy, as permitted by sections 93 and 95 of the Evidence Act supra, but then

it has to be done properly according to the dictates of the provisions of sections 109 – 112 supra, which the plaintiffs failed to do in this case. Authorities abound that the content of documents may be admitted as secondary evidence, once they have been properly certified. See Anatogu v. Igwe Iweka II (Eze Obosi) and Others 1995 8 NWLR part 415 page 547, Obadina family and Executor of Chief J. A. Ajao v. Ambrose family and others 1969 1 NWLR 25, and Daggash v. Bulama 2004 14 NWLR part 892

page 144.

In addition to the above exposition of the law, I will reproduce the provisions of Sections 36(1) and 634 of the Companies and Allied Matters Act 1990, at this juncture. Section 36(1) states:-

“The certificate of Incorporation shall be prima facie evidence that all the requirements of this Decree in respect of registration and of matters precedent and incidental to it have been complied with and that the association is a company authoized to be registered and duly registered under this Decree.

634(1) Any person may, on payment of the fees prescribed in part 111 of Schedule 77 to this Act inspect

documents or obtain Certificates of Incorporation of copies of extracts from documents held by the commission

for the purposes of this Act.

(2) Where a copy of extract from any document registered under this Act is certified by the commission to be a

true copy or extract, it shall in all proceeding be admissible in evidence as of equal validity with the original documents, and it shall be unnecessary to prove the official position of the person certifying the copy or extract.”

By virtue of Section 36 supra, a Certificate of Incorporation is a proof that a company has been registered, and by virtue of Section 634, the certification of such document should be by the commission, which is contrary to the position in the instant case, where Exhibit ‘A, was certified by the High court. In this respect, Exhibit ‘A’ was

an inadmissible evidence, which should not have been relied upon, or given any probative value whatsoever. Although its admissibility was not objected to, one has to bear in mind the fact that at the time of tendering Exhibit ‘A’, the defendant/respondent was not represented in court. That however, does not estop the defendant from raising the objection that it was not admissible, later and should not be relied upon. In the case of Okulade v. Alade supra, the Supreme Court in dealing with a situation like this postulated thus:-

“In a trial by a judge alone, as in the case in hand, a distinction must be drawn between those cases where the evidence complained of is in no circumstances admissible in law and where the evidence complained of is admissible under certain conditions.In the former class of cases the evidence cannot be acted upon even if parties admitted

it by consent and the Court of Appeal will entertain a complaint on the admissibility of such evidence by the lower court (although the evidence was admitted in the lower court without objection), in the latter class of cases; if the evidence was admitted in the lower court without objection or by consent of parties or was used by the opposite party (e.g.for the purpose of cross-examination) then it would be within the competence of the trial court to act

on it and the Court of Appeal will not entertain any complaint on the admissibility of such evidence.”

The evidence in the instant case falls within the former class, so I am fortified by the above proposition of law.

See also the cases of Minister of Nigeria v. Lands, Western Nigeria v. Dr. Nnamdi Azikiwe and others SC. 1969/68, Omoniyin v. Omotosho 1961 All N.L.R.304, Alashe v. Olori Ilu 1964 1 All N.L.R. 390, and Yassin v. Barclays Bank 1968 1 All N.L.R. 171.

In this vein, I endorse the finding of the lower court, which reads as follows:-

“For all this, it is incumbent on this court to exclude and discountenance Exhibit A as inadmissible evidence. The consequence is that the action is not properly constituted for want of proper parties.”

In the light of the above discussions, I resolve issues (1) and (3) supra in favour of the respondent, and dismiss grounds (1) and (3) of appeal to which they are married.

I will now proceed to issues (2), (4) and (6) supra in the appellants, brief of argument. The argument proffered by learned counsel for the appellants is that the erroneous certification of Exhibit A was due entirely to the genuine mistake of counsel and not for want of a true legal status on the part of the 1st Plaintiff/Appellant, and that the court below had decided the appeal on a distorted record of appeal, which left out a vital evidence that the original Certificate of Incorporation was presented in court during trial and a proper foundation laid before the admittance of the Certified True Copy in evidence. In support of this argument he placed reliance on the cases of Alli Bello & 13 others v. Attorney General of Oyo State 1986 12 SC. page 111, State v. Gwanto 1983 1 SCNLR page 160, Jolayemi v,. Alaoye 2004 9 M.J.S.C. page 106. Learned counsel further submitted that the evidential burden of proof had shifted to the defendant/respondent to adduce credible evidence that indeed the 1st plaintiff/appellant is not a juristic person. He referred to Sections 135, 136 and 137 of the Evidence Act supra.

The learned counsel for the respondent has in reply submitted that the issue of juristic personality of the 1st plaintiff/appellant is a fundamental issue of law which touches jurisdiction. He placed reliance on the cases of Madukolu & ors v. Nkemdilim supra, P. G. S. Ikachi v. Igbudu 2005 12 NWLR part 940 page 543, Shitta Bey v. Attorney General of Federation 1988 10 NWLR part 970, and Adefulu v. Okulaja 1998 5 NWLR part 550 page 435.He argued that the plaintiffs/appellants having failed to prove legal status or juristic personality of the 1st plaintiff/appellant the lower court was not competent to assume jurisdiction. According to learned counsel, jurisdiction was raised in the trial court vide pleadings, and besides the issue of jurisdiction can be raised at any stage of proceedings. He submitted that the documentary evidence produced at the trial court does not meet the requirement of the law.

Indeed the evidence that forms part of the fundamental requirement of a suit in the trial court does not meet the requirement of the law, as already found above. The particular piece of evidence I am referring to is Exhibit ‘A’, which is paramount to the jurisdiction of the trial court, and its competence to hear and determine the suit. I have already reproduced the significant pleadings of the plaintiffs on the status of the 1st plaintiff in the earlier part of this judgment. That, the plaintiff had to prove, and in doing so he tendered a copy of the Certificate of Incorporation, which was inadmissible. Towards this burden placed on the plaintiffs by the law, they failed woefully. That he took the original certificate of registration to court, and said, ‘this is its original Certificate of Incorporation’ is neither here nor there. He may have taken what he claims to be the original certificate to court, but it is not on record that the learned trial judge looked at the content, as it is not so recorded in the record of proceedings. Even if the learned trial judge recorded that she saw it, the fact that it was not part of the evidence in the court below, makes that single act of taking it to court inconsequential. The heavy weather made of this act of taking the said original certificate of incorporation to court by the learned counsel for the appellant is of no significance, and does not deserve the stress.

The plaintiffs definitely did not discharge the burden of proof placed on them by Section 135 of the Evidence Act supra, and so the burden did not shift to the defendant/respondent. It is after the plaintiff would have proved its assertion, that the burden shifts, and then it becomes incumbent on the defendant to prove its own case or rebut the case of the plaintiff. See Osawaru v. Ezeiruka 1978 6 – 7 SC.135, Akinfosile v. Ijose 1960 5 F.S.C. 192, and Woluchem v. Gudi 1981 5 SC. 291.

It is a cardinal principle of law that jurisdiction is fundamental to the determination of a suit, as unless a court is competent, it cannot exercise jurisdiction over a suit to the extent of deciding on it. In the case of supra, the issue of jurisdiction and competence was encapsulated thus:-

“Put briefly, a court is competent when:-

“(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and

(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.

If the court is competent, the proceedings are not a nullity, but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial; in which case the appeal court may not think fit to set aside the judgment.”

I take solace in the above principle of law and hold that the learned trial court was incompetent to decide on the suit, and in consequence the Court of Appeal did not err when it found thus:-

“The consequence is that the action is not properly constituted for want of proper parties. In the situation as found there, there is no way the trial court could have competently dealt with the matter in controversy, that is, as regards the right and interests of the parties when the proper parties are not even before the court.”

There is defect in the competence of the trial court to hear and determine the case at hand which is fatal, and so the proceedings are a nullity. See Rossek v. African Continental Bank Ltd. 1993 B NWLR part 312 page 382, Skenconsult v. Ukey 1981 1 sc.6, and Araka v. Ejeagwu 2000 15 NWLR part 692 page 684.

For the foregoing reasonings I resolve issues (2) (4) and (6) supra in favour of the respondent, and dismiss grounds (2), (4) and (6) of appeal married to the issues for they are bound to fail.

On issue (5), the learned counsel for the appellants did not proffer any argument to cover it, but merely cited the case of Adedeji v. National Bank of Nigeria 1989 1 NWLR part 96 page 212, and reproduced an excerpt of the judgment. That in itself suggests to me that the learned counsel had nothing tangible to canvass in respect of the issue. Although the respondent’s counsel proffered argument to cover the issue, I deem it unnecessary to deal with it, as the situation in this case does not warrant it. Since the bottom line is that the court of trial had no jurisdiction to determine the suit, and I have so found, the need to consider or evaluate the other adduced evidence is obviated. The issue is in favour of the respondent, and I so resolve it. Ground (5) of appeal also fail, and it is hereby dismissed.

Before I conclude this judgment I will like to comment on the appellants’ reply brief of argument, which in essence contains repetitions of the argument in the appellants’ brief of argument. The function of an appellant reply brief as stated in plethora of authorities is to reply to new points raised in a respondent’s brief of argument.

See Ojukwu v. Obasanjo 2004 12 NWLR part 886 page 169, and Olafisoye v. F.R.N. 2004 4 NWLR part 864 page 580. In the case at hand the appellants’ reply brief of argument has not addressed new points raised in the respondent’s brief of argument, but merely sought to further improve on the their earlier argument in the appellants’ brief of argument.

The end result of this appeal is that it is dismissed for it is unmeritorious. I affirm the judgment of the lower court. Costs is assessed at N50,000.00 in favour of the respondents against the appellants.

---

SC.266/2005

Mrs. Oluwaseun Agboola V. United Bank For Africa Plc & 2 Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

ALOMA MARIAM MUKHTAR, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ilorin, Division which allowed the appeal of the defendants from the court of first instance. The plaintiff’s case in the High Court of Kwara State is in respect of a two storey building known as WO15 Sadiku Road, Kulende, Ilorin, which the 1st defendant/respondent sold by auction. The plaintiff bought the land upon which she built 30 rooms, from one Alhaji Sule Tahiru. The sale agreement was in the name of the appellant and was witnessed by her brother, the 3rd defendant who mortgaged the property to the 1st defendant, without her knowledge and consent since the documents were in his possession. She claimed the following reliefs against the defendants:-

(i) A declaration that the purported sale of the plaintiffs house lying and situate at Kulende, behind Goodwill Hotel on 28/11/94 by the 2nd Defendant acting on behalf of the 1st Defendant is illegal unconstitutional, null and void.

(ii) An order setting aside the sale of the said house.

(iii) A declaration that the purported mortgage of the plaintiff’s house by the 3rd Defendant to the 1st Defendant without her knowledge or consent is illegal unconstitutional null and void.

(iv) A perpetual injunction restraining the Defendants by themselves their agent or any other person howsoever in respect of the said building.

(v) Damages of Fifty Thousand Naira (N50,000.00) for the unlawful act and embarrassment caused to the plaintiff’s person.”

The 1st and 2nd defendants denied the case of the plaintiff. At the close of pleadings, the parties adduced evidence which were evaluated by the learned trial judge, who at the end of the day gave judgment in favour of the plaintiff, and granted the reliefs sought.

The defendants appealed to the Court of Appeal, Ilorin Division, which allowed the appeal thus:-

“On the whole it is my considered view that this appeal succeeds and is hereby allowed. The judgment of the Kwara State High Court of Justice in suit No. KWS/299/94 delivered on 17th February, 1998 by Hon. justice J.A. Ibiwoye is hereby set aside. In its place there shall be substituted the order dismissing suit No. KWS/299/94.”

The plaintiff is dissatisfied with the decision, and she has appealed to this court, originally on three grounds of appeal in the notice of appeal, which was amended twice with the leave of court. Along the line the original appellant /plaintiff who became deceased was substituted with one Mrs. Oluwaseun Agboola, who is now the appellant, with the leave of court. In compliance with the rules of this court the learned counsel for both parties exchanged briefs of argument, which were adopted at the hearing of the appeal, after they had been amended. The appellant also adopted her reply to the amended respondent’s brief of argument. In the 1st amended brief of the appellants which learned counsel adopted at the hearing of the appeal was raised the following issues for determination:-

“(i) whether the Appellant’s exhibit is inadmissible……

(ii) whether the learned court of Appeal Justices were right, in reversing the judgment of the learned trial judge on the ground that the appellant failed to prove her title to the property in dispute…….

(iii) Whether exhibit D2 (the Respondents deed of conveyance) is admissible in proof of payment of money in the absence of any averment in the statement of defence that money was paid or acknowledged. ………

(iv) If question 2 is answered in the affirmative, whether the admission of Exhibit D2 without any evidence that the Respondent was put in possession is enough to confer title to the property on the respondents.

(v) Assuming that the appellant failed to prove her title to the disputed property, was the court of Appeal right in dismissing the Appellant’s claim on damages and injunction for the unlawful act committed against the properly regards being had to the fact that the Appellant’s possession of the properly is not disputed. ………”

In the respondent’s amended brief of argument, the following issues were formulated for determination: –

(i) Whether having regard to the pleading and evidence, the court below was right in holding that the Appellant failed to establish before the Trial court her claim to ownership of the properly in dispute.

(ii) Whether any miscarriage of justice was occasioned by the decision of the court below that the Deed of conveyance (Exhibit D2) though inadmissible for non – registration, is admissible the Appellant’s claim for perpetual injunction and damages, when the Appellant was unable to establish a better title………….”

I adopt the issues raised in the 1st amended appellant’s brief of argument for the treatment of this appeal, beginning with issue (1) supra. The argument of the learned counsel for the appellant under this issue is that the Court of Appeal was wrong in holding that exhibit 1 was not pleaded and hence it was inadmissible in law. Learned counsel referred to paragraph 6 of the statement of claim, and quoted the content of the said exhibit 1. He further submitted that the rules of pleading do not require a party to plead a document, but to plead facts relating to the document, and placed reliance on the case of Monier Construction Co. Ltd. v. Azubike (1990) 3 NWLR part 136 page 74.

It is also the argument of the learned counsel that the finding of the court below that exhibit 1 is inadmissible led the court below to hold that the appellant has no root of title and thereby occasioned miscarriage of justice in the consideration of the appellant’s case.

The learned counsel further submitted that the finding of the Court of Appeal that exhibit 1 is inadmissible led the court to hold that the appellant has no root of title and thereby occasioned a grave miscarriage of justice.

The learned counsel for the respondents has argued that the facts pleaded did not relate to the document tendered, and so the court below was correct in holding that the document ought not to have been admitted in evidence, as parties are bound by their pleadings. He referred to the cases of National Investment and Properties Co. Ltd. v. The Thompson Organization and Ors (1969) 1 A.N.L.R. page 138, Abimbola v. Abatan (2001) 9 NWLR Part 717 page 78, and Wadukwe v. Acha (1998) 6 NWLR Part 552 page 25.

At this juncture I will reproduce the relevant pleading to this discussion. In the appellant’s statement of claim can be found the following averments:-

“6. The Plaintiff avers that sometimes in 1977, the 3rd Defendant advised her to use the proceed kept with him to buy another land. Evidence will be led on how she purchased a piece of land from one Alhaji Sule Tahiru.

7. The Plaintiff states that in furtherance of the sale, an agreement was made in the name of the Plaintiff and the 3rd defendant witnessed the agreement.”

In a bid to prove the above averments plaintiff gave the following evidence:-

“I then bought a parcel of land at Kulende. I knew one Alhaji Sule Tahiru from whom I purchased the land. He gave me a receipt. This is the receipt”.

There was objection to the tendering of the receipt by the learned counsel for the defendants/respondents, but, the objection was overruled and the receipt admitted in evidence as Exhibit 1. Exhibit 1, has the following incorporated therein.

“Received from Alh. Tahiru Sule, Kulende Area Ilorin, Ten Naira Nil kobo on account of alienation of land vide Form B No. 24 75 of 7/2/77”

The receipt has nothing that connects the appellant, and it is neither a purchase receipt nor an agreement as claimed in paragraph (7) of the reproduced pleading above. The name of the appellant is not reflected on it, nor is the identity or description of the land in controversy mentioned. Even though the name of Alhaji Tahiru Sule is on the receipt, the remaining content of Exh. 1 does not correspond with the averments in paragraphs 6 and 7 of the statement of claim supra. Exhibit 1 is not an agreement and does not fall within the description of it, nor does the evidence of the plaintiff which I have reproduced above.

I will now go back to the argument on the purported pleading of the said Exhibit 1. The averments reproduced above are not in tandem with what was produced as an evidence of purchase. They are not reconcilable.

Pleadings are meant to be specific and documents sought to be relied upon must be specifically pleaded, but in the instant case, exhibit 1 was not pleaded. See Mandilas and Karaberis Ltd v. Otokiti 1963 1 All NLR 22.

On the objection of the learned counsel that Exhibit 1 was not pleaded, the learned trial judge should have rejected it, in view of the averments, for it was definitely not pleaded. It is an elementary principle of law that parties are bound by their pleadings, as the main aim of pleadings is to put the other party on notice of what to meet at a trial, so that it would also be well prepared and not taken by surprise. Anything outside the pleadings that is sought to form part of the trial must be ignored as it goes to no issue. See Odumosu v. A.C.B. Ltd (1976) 11 SC page 261, Ebosie v. Phil-Ebosie (1976) 7 SC page 119, and Ojeh v. Kamalu (2005) 18 NWLR Part 958 page 523. The Court of Appeal was therefore right when it pronounced as follows in its judgment:-

“Unfortunately exhibit 1 which she tendered is not the evidence of the alleged transaction. Exhibit 1 rather states that Alhaji Tahiru Sule paid N10.00 on account of alienation of land. It does not state the person to whom the alleged land was alienated.

Exhibit 1 is also not a receipt issued by Alhaji Tahiru Sule to the respondent on account of the alleged alienation of land. In short Exhibit 1 is evidence of Alhaji Tahiru Sule’s intention to alienate land but not proof of the fact of the alienation let alone alienation to the respondent………

It is trite that a party is bound by the pleadings and shall not be permitted to put up an entirely new case.

It has always been held that matters not pleaded go to no issue and should not be admitted in evidence and, if admitted should be ignored or discountenanced in the absence of amendment of the pleadings.”

I endorse the above finding for I am of the firm view that Exhibit 1 should not have been admitted or relied upon. In this light I hold that Exhibit 1 is inadmissible and answer issue (1) supra in the negative. Ground (4) of appeal to which it is related is bound to fail and it is dismissed.

In arguing issue (2) supra, learned counsel for the appellant explored the five ways of proving title to land as enunciated in the cases of Idundun v. Okumaga (1979) 9-10 SC.140 and Akaose v. Nwosu (1971) 1 NWLR Part 487 page 47. He posited that the transaction between the vendor Alhaji Tahiru Sule and the appellant was a transaction between two natives and therefore governed by customary law, and submitted that for a sale of land to be valid under native law and customs the essential ingredients are:-

(i) payment of the purchase price;

(ii) the purchaser is let into possession;

(iii) in the presence of witnesses, as is stated in Odusoga v. Ricketts (1997) 7 NWLR part 511 page 1.

The learned counsel further submitted that under the customary law there is no necessity to obtain a purchase receipt of the land, and the fact that exhibit 1 is not evidence of the purchase, is not sufficient for the court of appeal to hold that the appellant did not prove her title to the land, as she did under customary law. He placed reliance on Aboyade Cole v. Folami (1956) SCNLR 180. It is also the contention of learned counsel that the appellant proved her title by acts of ownership and possession, which she pleaded, and which the respondents did not join issue on, but merely denied as a general traverse. He referred to Messrs Lewis Peat (N.L.R.) Ltd v. Akhimien (1976) 7 SC. 159, and Overseas Construction Ltd v. Creek Enterprises Ltd (1985) 3 NWLR part 13 page 418. The learned counsel also made submissions on the evidence on the numerous acts of ownership and long possession of the appellant, citing in the process the cases of Ekpo v. Ita (1932) 11 WLR 68, Onwusbufor v. Okoye (1996) 1 NWLR part 424, Akpan v. Otong (1996) 10 NWLR part 476 and Ishola v. Abalaka (1972) 5 SC. 203.

In reply to the above argument, the learned counsel for the respondents has argued that a party cannot be allowed to set up a case different from that which was made out at the court below, more so as the court below was never afforded an opportunity to make a pronouncement on the issue. This submission is in respect of the submission on the customary law issue raised by the learned appellant counsel’s submission above. See Enigbokan v. AILCO (Nig.) Ltd (1994) 6 NWLR part 2348 1, and Kuusu v. Odom (1990) 21 NSCC Part 128 page 253. On the appellant’s averments on act of ownership and possession, which the appellant has argued were not properly traversed, learned counsel for the respondents has argued that in a claim for title to land, the plaintiff can only succeed on the strength of his case and not the weakness of the case of the defendant. He cited the cases of Eboade v. Eafomesin (1997) 5 SCNJ 13, and Adeniran V. Alao and Anor (2001) 12 SCNJ 337. According to learned counsel, pleadings and evidence of the appellant, be it on production of documents of title or acts of ownership and possession are not up to scratch, and so the appellant never as much as established a prima facie case, hence there was no compelling necessity for the respondents to establish any facts in rebuttal. Rather, the respondent proved a more cogent and credible case by oral and/or documentary evidence.

I will start with the treatment of the learned counsel argument on the nature of the sale/acquisition of the land in dispute i.e whether the land in dispute was bought under customary law. I have examined the statement of claim, and nowhere in it have I seen any averment that neither stated that the transaction between the appellant and the said Alhaji Tahiru was under customary law, nor was it so alluded. I find the suggestion of learned counsel for the appellant that because the transaction was between two natives, and so it was governed by customary law ridiculous and incomprehensible, because nowhere in the statement of claim was it stated that the parties are natives. Consequently I fail to see the basis of this claim.

I am mindful that a party is not expected to plead evidence (see Obimianmi Brick and Stone (Nig.) Ltd v. ACB (1992) 3 NWLR Part 229 page 260, and Adegbite v. Ogunfaolu (1990) 4 NWLR part 146 page 578), but nevertheless such important and serious matter that touches on the root of the claim of title to land, must be or ought to be pleaded specifically. This, the plaintiff failed to do, and at this stage of the proceedings she is raising this issue freshly, without the leave of court. This practice is not allowed by the law, and the court will not accommodate it, for the law is trite that to raise a fresh issue on appeal a party must seek and obtain leave from the court. A party cannot at random stray into an argument that did not form part of the case in the lower court, and in the process seek to formulate a new and different case other than the one originally instituted. See Dweye v. Iyomahan (1983) 8 SC 76, University of Ibadan v. Adetoro (2000) 9 NWLR part 673 page 631, and Oshatoba v. Olujtan (2000) 5 NWLR part 655 page 159.

At any rate, as I have already stated above, parties are bound by their pleadings, and the law expects that they should confine themselves within the periphery of their pleadings.

In the instant case, since the appellant’s claim was not based on sale under customary law, the learned court couldn’t have adverted its mind to it and find on it. In this respect I will discountenance the argument on this aspect of the effort of the appellant to convince this court that there was valid evidence of the purchase of the land in dispute, in a bid to prove one of the five ways of proving title to land. The five ways of proving title to land, as stated in the Idundun case supra are:-

1. By traditional evidence.
2. By production of documents of title.
3. By proving acts of ownership numerous and positive enough to warrant an inference that the person is the true owner (such as selling, renting out or farming on all or part of the land).
4. By proving acts of long possession and enjoyment of the land under Section 145.
5. By proof of possession of connected or adjacent land (the contiguity rule).

It is clear that the appellant has failed in way (2) supra, which she sought to prove vide Exhibit 1, which I have already found inadmissible. On way (3) supra’ the appellant produced Exhibit 3 which is described as structural details of proposed building for Madam Olatohun Ayinke at Kulende Along Jebba Road, Ilorin, and Exhibit 2,which is described as ‘Site plan for Madam, Olatohun Ayinke along Jebba Road Kulende Area, Ilorin, Kwara State. It is instructive to note that the name of the appellant was inserted with ink in both exhibits. One wonders why this should be so. It is also instructive to note that Exhibit ‘2’ bears the date of 2/2/77 the same date as the date in Exhibit 1, (purported receipt of purchase). I find it difficult to reconcile the two exhibits in view of their antecedents. For clarification I will reproduce the evidence of the appellant as can be found on pages 33 and 34 of the printed record of proceedings. It reads:-

“I then bought a parcel of land at the (sic) land. He gave me a receipt. This is the receipt ……

Court: The receipt No. IL53286 dated 7/2/77 is admitted and marked exhibit 1.

Plaintiff: I caused a site plan of the land to be made. This is the site plan. ………

Court: Site plan for Madam Olatohun Ayinke along Jebba Road, Kulende Area, Ilorin is marked exhibit 2.”

The problem I seem to have here is, how the site plan could have been drawn and submitted to the Superintendent of Works, Ilorin on the same date the land was purchased. The speed at which this was done is questionable. As a result of this, I have my doubt that these exhibits have lent credence to the establishment of the acts of ownership and possession claimed by the appellant. Exhibits 4 – 22 that are rent receipts purportedly written and given to the tenants in the building on the land in dispute by the appellant are neither here nor there. None of them bears anything to link it to the address of the house in dispute. There is no nexus to this case other than that they bear the name of the appellant. Another point that is worthy of note is the fact that the receipts bear different addresses of the appellant, that are in the same Kulende Area of Ilorin, as the property in dispute. It seems the appellant has other various properties in the area, and the receipts may well be in respect of these various other properties, apart from the said Sadiku Street. In one exhibit the appellant’s address is No. 2, Olorunsogo Street, i.e. Onire, Kulende, Ilorin, and in another one it is No.2, Alagbon Street, Kulende, Ilorin. The exhibits are to my mind not cogent and reliable to establish the ownership of the property in dispute. I am at a loss as to why the appellant did not call any of the tenants as witness, to prove the identity of the house for which he was issued any of Exhibits 4 – 22.

It is settled law that civil suits are decided on preponderance of evidence, and balance of probability. See Elias v. Omobare (1982) 5 SC. 25, and Woluchem v. Gudi (1981) 5 S.C. page 291.

By virtue of Section 135 of the Evidence Act supra, he who asserts must prove. To discharge this burden a party must adduce cogent and credible evidence that has direct relevance to the matter in controversy, and it is only when he does that that he discharges the burden. See Imana v. Robinson (1979) 3 – 4 SC 1, Are v. Adisa (1967) 1 All N.L.R. 148 and Elias v. Disu (1962) 1 All N.L.R. 214.

Just as she did not consider it necessary to call the said Alhaji Sule Tahiru from whom she purportedly bought the land she eventually built on. Again, I am not satisfied that the said Exhibits 4 – 22 have proved ownership and long possession. The three ways under which the appellant predicated her claim for title have definitely not been established, and so her claim to the ownership of the property has not been proved. The learned Court of Appeal was therefore right in reversing the judgment of the learned trial judge, so my answer to this issue is in the affirmative. Ground of appeal No. 1 to which the issue is related fails and it is hereby dismissed.

I will now proceed to the treatment of issues 3 and 4 which the learned counsel for the appellant has lumped together in his argument. The learned counsel for the appellant commenced the argument on this issue by submitting that Exhibit D is, on the fact of this case, inadmissible, and that the court below did not direct itself properly in the consideration of the admissibility of Exhibit D2. He submitted that in the statement of defence filed by the respondent Exhibit D was pleaded as a title document. The learned counsel argued that the court below after holding that Exhibit D2 is an instrument which ought to be registered, somersaulted in its position to hold that though Exhibit D2 is not admissible for non-registration, it is admissible in evidence to prove the fact that some money exchanged hands between the parties to Exhibit D2. The appellant’s counsel further submitted that the court misconstrued the cases of Ogunbambi v. Aboaba 13 W.A.C.A. 22 and Adesanya v. Otuewa (1993) 1 SCNJ 7 in admitting Exhibit D2 as evidence of acknowledgment of purchase money. It is the argument of learned counsel that Exhibit D having been pleaded and tendered as evidence of title is inadmissible and ineffectual to confer anything on the respondents. See the case of Oredola Okeya Trading Co. v. Attorney General of Kwara State (1992) 7 NWLR part 254 page 412. Finally, the learned counsel contended that even if Exhibit D2 is admissible as evidence of purchase money, the mere admission of Exhibit D2 will not confer title on the respondents unless the respondents can show that Exhibit D2 is coupled with possession for a reasonable length of time and the respondents neither pleaded possession nor that they remained in possession for any length of time. He placed reliance on Orasanmi v. Idowu (1959) NSCC 33.

In his reply to the above submissions the learned counsel for the respondents submitted that no miscarriage of justice was occasioned by the decision of the learned justices of the Court of Appeal that the deed of conveyance Exhibit D2 though inadmissible for non registration, is admissible as evidence of payment of money. According to learned counsel, the appellant stands or falls in this case on the strength of her own case and not any weakness on the part of the respondents, hence whether or not Exhibit D2 was admitted in evidence, the appellant was still obliged to establish her case.

Indeed, the dust raised by the appellant on the admissibility or otherwise of Exhibit D2 is inconsequential to this case. Now, the main thrust of this argument is that the said Exhibit 2 was not pleaded and so should not have been admitted. I will now examine the relevant averments in the respondents’ statement of defence. They are:-

“4(b) That the third defendant enjoys credit facilities with the first defendant and which facilities was granted and always renewed and/or increased on the application of the third defendant. The third defendant’s application for loan dated 20/8/82; and his applications for renewal and increase of overdraft facility CA S21 dated 4/10/83 and 29/10/84 respectively and the first defendant’s letters of approval of the said applications dated 10/11/82, 28/11/83 and 19/8/85 respectively are pleaded.

(c) That the third defendant executed a deed of mortgage in favour of the first defendant over his property covered by Statutory Right of Occupancy No. 5194 to secure the said facilities. The said Deed of Mortgage is pleaded.

(d) That the third defendant is the lawful holder of a Certificate of Occupancy No: KW 5194 issued by the Kwara State Government over the said mortgage property now is (sic) issue. The said documents are pleaded.

6. The first defendant avers that several demand notices were sent to the third defendant but the third defendant refused to settle his indebtedness to the first defendant. The said demand notices are pleaded.
7. The first defendant avers that it made arrangements to exercise her right of sale under the said Deed of mortgage by advertising in the Punch Newspaper of Friday 26th February, 1993 and by printing and Distribution of Hand bills. The said publication and hand bill are pleaded.
8. The first defendant avers that the third defendant has still refused to pay the said indebtedness of the sum of N340,432.79 as at 7/2/96 to the first defendant despite the said repeated demands.”

Oluwatosin Lukuman Aworekun, a credit officer of the 1st respondent gave the following evidence in support of the above averments.

“I know the property involved in this case at behind Good Will Hotel, Kulende, Ilorin. It is a two story building having 30 rooms. The properfy belongs to the 3rd defendant who has the deed of conveyance with which he bought the land on which the building stands. The 3rd defendant also has a customary Right of Occupancy and Certificate of Occupancy (C. of O.). The 3rd defendant deposited the documents to the 1st defendant and the 3rd defendant bank. The 3rd defendant also executed a deed of legal mortgage in respect of the credit facilities granted him by the 1st defendant bank.”

Under cross-examination DW1 gave the following testimony interalia:-

“The vendor in Exh. D2 is Alhaji Sule Tairu. It was sold to the 3rd defendant.”

The witness was however not cross examined on the credit facilities obtained by the 3rd defendant and the deposit of the property in dispute as security for the mortgage which is the crux of this argument and the pleading reproduced above, and the purpose for which Exhibit D was pleaded. It is on record that the admissibility of Exhibit D2 was objected to by the appellant at the Court of first instance. The cases of Ogunbambi and Adesanya on which the court below took solace in its finding on the exhibit, and the reliance on the cases by the lower court is appropriate. Now, what is the content of Exhibit D2 Exhibit D2 which is a conveyance, has as its preamble the following:-

“This conveyance is made the 25th day of May, 1976 –

BETWEEN ALHAJI SULE TAIRU of Kulende Area, Ilorin, Kwara State of Nigeria (hereinafter called the “VENDOR” which expression shall where the con so admits include the person or persons deriving title under him) of the one part and MR. ISAAC DUROSINMI of Olomo – Oba’s compound Faji District via Ikirun, Oyo State of Nigeria (hereinafter called the “PURCAHSER’ which expression shall where the con so admits include the person deriving title under him) of the other part.

WITNESSESS:

1. In pursuance of the agreement and in consideration of the sum of One Thousand Naira (N1,000.00) paid by the purchaser to the vendor (the receipt whereof the Vendor hereby acknowledges) the Vendor hereby conveys to the Purchaser ALL THAT parcel of land measuring 100ft by 50ft situate lying and being in Inalende Area, Ilorin – Jebba Road, Ilorin Kwara State of Nigeria which is more particularly described and alienated on the survey plan annexed and edged…………”

The conveyance was signed by the purchaser and the vendor. Could it be a coincidence that it was the same vendor that the appellant claimed sold her own properly to her that was also the vendor to the 3rd respondent I think not, for when one considers her evidence against the backdrop of the totality of the evidence adduced, one will be convinced that the property was the 3rd respondent’s property, otherwise why would Exhibit D2 bear the 3rd respondent’s name, and why would he use it to secure overdraft facilities I bear in mind the evidence of the appellant that the 3rd respondent apologized to her that he mortgaged the property in dispute because he was in need of the money. But then again, a pertinent question to be asked here, is if the property was the appellant’s what was the document of title (which did not bear her name) doing in possession of the third defendant, who held on to it to the extent of having the audacity to use it to obtain overdraft facilities from the 1st defendant. It is definitely fishy. I am satisfied that even though the document was not registered, and was so not admissible in view of the provision of Sections (2) and (15) of the Land Instrument Registration Law, it was admissible for the purpose of establishing the transaction between the vendor and the purchaser.

In this respect, I endorse the finding of the learned Court of Appeal which reads thus:-

“It is my considered view that exhibit D2 is admissible evidence to prove the fact that some money exchanged hands between the parties in Exhibit D2 – in this case N1,000.00 on account of the land transaction testified thereto. ”

At any rate, as I have posited earlier, the burden of proving the appellant claim of the ownership of the property rests on the appellant, and it did not ordinarily shift until she had proved her title with cogent and credible evidence. What is more, the plaintiff cannot rely on the weakness of the defendants’ case for the success of his case.

It is a cardinal principle of the law that a party must rely on the strength of his case and not on the weakness of his opponent. see Ituama v. Akpe-Ime (2000) 2 NWLR part 680 page 156, Ihekoronye v. Hart (2000) 15 NWLR part 692 page 840.

In the light of the foregoing I resolve these issues in favour of the respondents, and dismiss grounds (5) and (6) of appeal that cover the issues.

The argument of the learned counsel for the appellant under issue (5) is predicated on possession. The issue and argument will to my mind be necessary only if the appellant proved exclusive possession to the property in dispute.

It has been decided in this judgment that the appellant has failed not only to prove title to the property, but also she has failed to establish exclusive possession which is a sinequo of success in a claim of trespass. The argument by the learned counsel for the appellant and the cases of Adegbite Ogunfoolu (1990) 4 NWLR part 146 page 578, and Eketresu v. Oyebebere (1992) 9 NWLR part 266 page 438 cited by learned counsel for the appellant are of no relevance and assistance to the appellant.

In the circumstances, this issue is resolved in favour of the respondents, and ground of appeal

No. (7) from which the issue is distilled fails and it is dismissed.

The end result is that the appeal fails in its entirety and it is dismissed.

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SC.86/2003