Chief Victor Umeh & Anor V Prof. Maurice Iwu (Chairman Inec) & 3 Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

C.M. CHUKWUMA-ENEH, JSC

This interlocutory appeal is against the decision of the Court of Appeal Abuja Judicial Division (i.e. the Court below) delivered on 20/10/06 dismissing the appellants’ appeal to the effect that this action does not constitute an abuse of process of court; it therefore affirmed the decision of the trial court.

The appellants here i.e. the 3rd and 4th defendants at the trial court being aggrieved by the decision have appealed to this court by a Notice of Appeal dated and filed on 18/12/2006 containing two grounds of appeal.

From the beginning, at the trial court, the 3rd and 4th respondents herein as plaintiffs commenced this action as per suit No FHC/ABJ/CS/478/2005 against the 1st and 2nd respondents only (that is as defendants) seeking the following reliefs jointly and severally:

“(i) A declaration that pursuant to Article 18(i) of the constitution of the All Progressives Grand Alliance herein on record as the fourth respondent, the third respondent (first plaintiff) has, is entitled to and enjoys a constitutional guaranteed chairmanship of the Party for an initial four year term commencing from 10th January, 2003 till 10th January, 2007, which term at the time of the institution of the action is still unexpired and which is also renewable at the option of the third respondent.

(ii) A declaration that the first and second respondents as defendants at the trial court lack the competence under the Constitution of the Federal Republic of Nigeria, 1999; the Electoral Act, 2002 and the constitution of the fourth respondent to interfere in any manner whatsoever with the position of the first plaintiff herein third respondent as the National Chairman of the second plaintiff herein fourth respondent and also lacks the power to change or attempt to change the leadership of the fourth respondent which is a registered political party.

(iii) A declaration that the provision of the Electoral Act, 2002 does not empower the defendants herein as the first and second respondents to confer recognition on any other person as the National Chairman or Acting National Chairman of the second plaintiff contrary to the provisions of the second plaintiffs constitution.

(iv) A declaration that the defendants are not entitled to ignore and cannot ignore the List of Names and Addresses of the national officers of the political party registered with them.

(v) An injunction restraining the defendants from recognizing or continuing to recognize or deal with the leadership of the second plaintiff except with the first plaintiff as guaranteed by the second plaintiffs constitution. See pages 10-11 of volume one of the records of appeal.”

The appellants have by an application dated and filed on 14/11/2005 applied to be joined as parties to the suit. The trial court on 8/5/2000 so ordered; they were joined as 3rd and 4th defendants to this suit by the trial court. The other crucial suit in this matter is as per suit No. FCT/HC/CV/278/2005.

I must emphasize that in suit No.FCT/HC/CV/278/2005 filed on 31/1/2005 the 3rd and 4th plaintiffs/respondents herein have jointly with one Dr. Hassan Bello and Barrister Maxi Okwo as plaintiffs sued the appellants and thirteen others at the High Court of the Federal Capital Territory seeking inter alia the following reliefs:

“(i) A declaration that the defendants are no longer members or national officers of the first plaintiff.

(ii) A declaration that the second, third and fourth plaintiffs are duly and only National Chairman, Deputy National Chairman (North) and Deputy National Chairman (South) respectively of the first plaintiff.

(iii) A declaration that the first defendant is not the National Chairman of the first plaintiff.

(iv) An injunction restraining the first to the eleventh defendants from parading themselves as national officers of the first plaintiff.

(v) An injunction restraining the first to the fourteen defendants from parading themselves as members of the first plaintiff.

(vi) A declaration nullifying the purported suspension or expulsion of the second, third and fourth plaintiffs from the first plaintiff. See pages 186-188 of the records of appeal.”

As it appears, undoubtedly, this matter has long and complex history particularly in keeping track of the changing titles of the parties in these suits. This has not made following this matter any easier. However the two cases (that is FCT/HC/CV/278/2005) and FHC/ABJ/CS/478/2005) mentioned above seem to me to form the crux of the contention in the dispute between the parties. Nonetheless for completeness of case profiles in this matter there is one other suit that is hinged to this dispute to wit: Suit No. FHC/ABJ/CS/346/2005; its fate will manifest in the course of this judgment.

In Suit No.FHC/ABJ/CS/346/2005 filed on 29/6/2005 by the 3rd and 4th respondents as plaintiffs against the 1st and 2n respondents as defendants, the plaintiffs have sought a number of declaratory and injunctive reliefs. I must early enough in discussing this matter recall that in suit No.FCT/HC/CV/278/2005 the 3rd and 4th defendants/ respondents in this suit were joined as 15th and 16th defendants as per the record. However by notice of discontinuance the names of the said 15th and 16th defendants were removed without affecting the subject matter and character of the suit, which remained intact. Hot on the heels of having withdrawn against the 15th and 16th defendants in suit No.FCT/HC/CV/278/2005 the 3rd and 4tln respondents as the plaintiffs filed yet another suit No.FHC/ABJ/CS/346/2005 and again against the 1st and 2nd defendants/respondents herein. This suit as per the record has been struck out as an abuse of process by Nyako J. There is no appeal against this decision. Rather the 3rd and 4th plaintiffs/respondents have filed the instant action i.e. FHC/ABJ/CS/478/2005. Chief Victor Umeh and Alhaji Sani Shinkafi (the appellants) herein by the order of the trial court have been joined as 3rd and 4th defendants to the aforesaid suit.

As can be gathered from the foregoing, a fierce tussle to control the soul of the party (APGA) is raging between the plaintiffs on the one hand and the 3rd and 4th defendants on the other. The 3rd and 4th defendants having in the instant matter raised the issue of an abuse of process vis-à-vis suit No FCT/HC/CV/278/2005, I think, restricts my discussion to the two suit aforesaid.

No sooner had the 3rd and 4th defendants/appellants were joined as parties in suit No.FCT/ABJ/CS/478/2005 than they filed an application in the trial court praying to dismiss the instant suit as an abuse of process or alternatively to strike out the suit for lack of jurisdiction as per pp.165-166 of Vol.1 of the record. Their grounds for the application are:

“(a) In suit No.FCT/HC/CV/278/05 All Progressive Grand Alliance (APGA) and 3 Ors v. Chief Victor Umeh & 3 Ors, the same plaintiffs herein brought an action against the same defendant in the suit before the High Court of the FCT Abuja.

(b) The subject matter of Suit No.FCT/HC/CV/278/2005 referred above, pending before the High Court of the FCT, Abuja is on all fours with the subject matter of this present suit.

(c) Suit No.FCT/HC/CV/278/05, referred to above is past heard the plaintiffs having closed their case, the suit is adjourned for the conclusion of defence witness.

(d) Consequently, the present suit constitutes a gross abuse of process and the Honourable Court is without jurisdiction to entertain same.”

If I may repeat, the trial court heard the parties’ respective submissions on the application and in a considered ruling dismissed the application with these poignant words at p.66 of Vol.11 of the record:-

“In the instant case two cases had hitherto been filed by the plaintiffs against the defendants but these cases from the evidence before the court were discontinued before this present action was filed. The situation where a party will file an action and discontinue and refile in a situation such as has manifested in this case is not in any manner tantamount to an abuse. There is no disclosed intention as a fact before the court to use the process of court improperly in the annoyance of the defendants. I therefore hold that there is no abuse of process in this case. The objection is therefore dismissed.”

Aggrieved by the decision, the defendants filed a Notice of Appeal dated 30/10/2006. Parties in accordance with the rules of the court below filed and exchanged their respective briefs of argument. The plaintiffs brief of argument is dated 29/11/2006 while the 3rd and 4th defendants’ brief of argument is dated 7/12/2006. The appeal before the court below was heard on 13/12/2006 and on 14/12/2006 the court below delivered its judgment; in dismissing the appeal it opined in these words:

“It is apparent that the end result of the two suits are meant to have an impact on the leadership of the 4th respondent the party – APGA but the 3rd respondent has his grievance towards those he considered to “be dissident factors in the party which suit is before the Federal Capital Territory High Court as FCT/HC/CV/278/05. The Suit FHC/ABJ/CS/478/05 before the Federal High court is against the Chairman INEC and INEC, the 1st and 2nd respondents challenging their intermeddling with the affairs of the party by giving recognition to the appointment of Chief Victor C. Umeh as the Ag. National Chairman of APGA in the letter dated 28/6/06 contrary to the constitution of the party, 1999 Constitution of the Federal Republic of Nigeria and the Electoral Law. I cannot identify any multiplicity of action here or abuse of the judicial process. Parties are permitted to air their grievance at the law courts as when there is a right there must be a remedy. Falobi v. Falobi (1976-9) 10 SC; Bello v. A-G Oyo State 1986 5 NWLR (Pt. 44) pg.828.” (Underlining supplied)

The above underlined phrase has constituted the crux of the controversy in this appeal. The court below all the same, rallied round to the conclusion at p.242 of the record by dismissing the application as lacking in merit and affirmed the decision of the trial Court. The 3rd and 4th defendants still dissatisfied with decision have appealed by a Notice of Appeal dated 18/12/2006 with leave of the court below granted on 9/3/2007 to this court. Parties, have in accordance with the rules of this court filed and exchanged their respective briefs of argument. The 3rd and 4th defendants/appellants herein have raised two issues for determination to wit:

“a. Whether this suit which is meant to have the same impact as the earlier suit No. FCT/FIC/CV/278/2005 on the leadership of the 4th respondent constitutes an abuse of process.

Whether the court below correctly examined the case presented before it and reached the right conclusion on the issues submitted to it.”

The 1st and 2nd defendants/respondents have raised a lone issue for determination to wit:

“Whether the Court of Appeal was right to hold as it did hold that the action in suit No.FCT/HC/CS/478/2005 that precipitated to this appeal does not amount to an abuse of the judicial process.”

The 3rd and 4th plaintiffs/respondents on their part also raised two issues for determination to wit:

“Whether the court below was right in holding that the 3rd and 4th respondents’ suit did not constitute an abuse of court process and dismissing the appeal.

“Whether the ruling of Nyako J. on a preliminary objection in suit No. FCT/ABJ/CS/346/2006, wherein the appellants were not parties, constitute an issue estoppel as to bar the 3rd and 4th respondents from instituting the instant suit.”

The arguments of the parties as per their respective briefs have been rather unnecessarily tedious otherwise on the parties’ showing this is a very simple matter. The argument on the case of the 3rd and 4th defendants/appellants, if I may sum up, is that the suit No FCT/HC/CS/478/05 being on all fours with FCT/HC/CV/278/05 in regard to the subject matter, the parties and the issues constitutes a gross abuse of court process and thus the court lacks the jurisdiction to entertain the same. They have again made heavy weather of the innocuous view of Adekeye JCA as expressed in the lead judgment to the effect that, “it is apparent that the end result of the two suits are meant to have an impact on the leadership of the 4th respondent the party – APGA”. It is urged on the court that on the abundant credible evidence on the printed record the court below in error has found no multiplicity of action amounting to an abuse of court process. The guiding principles in this respect it is submitted are as encompassed in the cases of Ojah v. Ogboni (1996) 6 NWLR (pt.454) 272; Martins v. C.O.P. (2005) NWLR (Pt.925) 614 at 634; Ogbu v. Wokoma (2005) 14 NWLR (pt.944) II at 140, (2005) 8 SCM, 170; Minister for Works and Housing v. Thomas Nig. Ltd (2002) 2 NWLR (Pt. 752) 740 at 780 and 785 and Dumez Nig. Plc v. UBA Plc (2006, 14 NWLR (pt.1000) 515 at 526.

The appellants have also submitted that in as far as the parties, the subject matter and the issues are congruent in the two suits that it is manifestly perverse to hold that the instant suit does not constitute an abuse of court process. This court it is urged should rightly intervene to avoid a miscarriage of justice.

On the general attitude of courts to abuse of court process the appellants have referred to renowned cases to elucidate on the same. See – Agwasim & Anor. v. Ojichie & Anor. (2004) 9-12 SCM (Pt.2); (2005) 10 NWLR (Pt.882) 613 at 624E; Theophilus Nnama & Ors v. George Nwanebe & Ors (1991) 1 NWLR (Pt.172) 181 at 190; The Royal Bank of Scotland Ltd v. Citrusdal Investment Ltd (1971) 3 AER 558 at 562; Thomas Launches Ltd v. Corporation of the Trinity House of Deptford Strond (1961) 1 AER 26 at 32-33; Okorodudu v. Okoromadu (1977) NSCC (Vol. 11) 105 at 109 and Ukachukwu v. UBA (2005) 18 NWLR (Pt.956) 1 at 63. On whether striking out suit No.FHC/HC/CS/346/2005 as an abuse of court process constitutes an issue estoppel vis-à-vis the instant suit; the appellants have relied on the cases of Hunter v. Chief Constable of West Midlands Police (1981) 3 WLR 906; Aro v. Fabolude (1983) ANLR 67 at 79 and Fashanu v. Adekoya (1974) 1 ANLR, to substantiate their submissions that it does constitute an issue estoppel. The appellants have therefore, urged the court to dismiss the suit for being an abuse of process.

The 1st and 2nd defendants/respondents, have argued that the instant suit is an abuse of process as the appellants have featured in all the suits either as original parties or have been joined as parties. They have submitted that the 3rd and 4th plaintiffs/respondents with improper motive commenced suit No.FHC/ABJ/CS/478/2005 as an abuse of court process during the pendency of suit No.FCT/HC/CV/278/2005 and rely on Saraki v. Kotoye (1992) NWLR (Pt.264) 156 at 188 per Karibi-Whyte JSC and Minister of Works v. Tomas (Nig) Ltd (2002) 2 NWLR (Pt. 752) 740. Also see: Arubo v. Aiyeleru (1993) 3 (Pt.280) 126 per Nnaemeka-Agu, JSC citing Wills v. Earl of Beauchamps (1886) to buttress the point on multiplicity of action as grounding the abuse. The court is urged to allow the appeal and dismiss the action before the trial court. I must subjoin here that the 1st and 2nd defendants/respondents have not appealed the decision of the Court below yet they are here urging that the appeal be allowed. They have not been challenged on this ground. And ask shouldn’t they be supporting the judgment instead? I say no more on this matter.

The 3rd and 4th plaintiffs/respondents as per their brief of argument have argued that an examination of suit No.FCT/ABJ/HC/CV/278/2005: Chief Chekwes Okorie of All Progressives Grand Alliance and 3 others v. Chief and 13 others and the instant suit No. FCT/ABJ/CS/478/2005: Chief Chekwas Okorie and Anor. v. Professor Maurice Iwu and 3 others has showed that the suits are not the same as to the parties and the subject matter and the issues to ground an abuse of process. See Osoejeofo v. Ogoejeofo (2006) 1 SCM, 113; (2006) 3 NWLR (Pt.966) 205 at 220 and Okafor v. AIG Anambra State (1991) 6 NWLR (Pt.200) 659 at 681. And so, there is no multiplicity of action. The point has also been taken that from different suits though of the same subject matter may emanate different rights and reliefs; and that the question of multiplicity of action in such instances is completely non-sequitur See: Christian Outreach Ministries Inc. v. Cobham (2006) 15 NWLR (Pt. 1002) 283 at 305-307. They submit there is no intention to harass, annoy or irritate the appellants by the filed suits. They have also adverted to Sections 251(1)(p)(q)(R) and 257 of the 1999 Constitution and the case of NEPA v. Edegbenro (2003) 9 WRN1 in withdrawing against the 1st and 2nd defendants/ respondents in suit No. FCT/NC/CV\278/2005 being Federal agencies and could not be sued in the FCT High Court. They further submit that the cases of Agwasim & Tomas and Dumez Nig. Plc and Ojichie referred to above as to where the same parties seek the same reliefs against the same opponents. On the question of concurrent finding of fact they have relied on the cases of Amadi v. Orisakwe (2005) 7 NWLR (Pt.711) 206; (2005) 2 SCM, 17; Ezeonwu v. Onyechi (1996) 3 NWLR (Pt.438) 499 and Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 in contending that the court cannot intervene here against the concurrent findings of the lower courts without showing element of perversity in the instant suit.

Again, they have contended that there is no basis to raise a plea of issue estoppel when the appellants are not parties in the suit No.FHC/ABJ/CS/346/2005 and have referred to Chief Christmas Egba v. Chief Melford Await (2005) 10 NWLR (Pt.934) 464 at 481 CA and Muda Anwoyi v. Shodeke (2006) 6 SCM 1; (2006) 13 NWLR (Pt.996) 34 and 50-51 on the principle governing issue estoppel.

Lastly, they contend that the issue estoppel must be final (that is given on the merits of the case) as against what has happened here where the suit No. FHC/ABJ/C5/O46/2005 has been merely struck out. See Oyede v. Olusesi (2005) 16 NWLR (Pt.951) 341. It is on this note that the 3rd and 4th plaintiffs/respondents have urged the court to dismiss the appeal and to affirm the concurrent decisions of the courts below.

I think, if I may, to underscore the point in dealing with this appeal, a resume of the crucial suits filed by the plaintiffs so far will clearly show whether the subject matters, parties, and issues are the same in both suits No.FHC/ABJ/CS/478/2005 and FCT/HC/CV/278/2005. in order to sustain a charge of abuse of court process leveled against suit No. FHC/ABJ/CS/478/2005 See: Okafor v. Attorney-General of Anambra State (supra). The record has showed that suit No.FHC/ABJ/CS/478/2005, has been instituted by a writ of summons dated 23/9/2005, by the 3rd and 4th respondents herein as plaintiffs at the Federal High Court against the 1st and 2nd respondents herein as the only defendants. At this stage of the proceedings the appellants have not become parties to the said suit when the 1st and 2nd respondents have sought by an application to strike out the said suit No. FHC/ABJ/CS/478/2005 as an abuse of process vis-à-vis suit No.FCT/HC/CV/278/2005; the application has however been dismissed. The 3rd and 4th defendants, the appellants herein have applied by an application dated 14/1 1/2005 to be joined to the instant suit as parties and as per the record they have been joined as 3rd and 4th defendants in the suit. The 3rd and 4th defendants immediately have thereafter filed an application to dismiss the said suit as constituting an abuse of Court process just as 1st and 2nd defendants/respondents did earlier, by contending that having regard to the number of suits so far filed by the plaintiffs against the defendants the institution of the instant action has been done with improper motive to annoy, irritate and embarrass the defendants. This application has also been dismissed. The record has showed that the 3rd and 4th defendants have appealed to the Court below which also dismissed the appeal hence they, i.e. the 3rd and 4th defendants, have now appealed to this court by a Notice of Appeal dated 18/12/2006. Briefs of argument from both sides of the suit have been filed and exchanged. I will come back to this matter later.

That said, the plaintiffs in the earlier suit No. FCT/HC/CV/278/2005: All Progressives Grand Alliance and 3 ors against Chief Victor Umeh and 13 Ors. have challenged the continued impersonation by the 1st to 11th defendants and 1st and 14th defendants as National Officers and members of the party respectively.

It has to be noted that the 1st and 2nd respondents herein have not been parties to this suit ab intio but on the plaintiffs’ application have been joined as 15th and 16th defendants; as per the record so as to be bound by the decision.

However, during the pendency of the aforesaid case, the 4th respondent received the 1st respondent’s letter withdrawing the recognition accorded him (the 1st plaintiff/3rd respondent) as the National Chairman of the Party and according recognition to the 3rd defendant/1st appellant herein i.e. Chief Victor Umeh as the acting National Chairman of APGA. The 3rd and 4th respondents as plaintiffs have therefore instituted yet another suit No. FMC/ABJ/CS/346/2005 by originating summons questioning the competence of the 1st and 2nd respondents to do so. The said suit has now been struck out as an abuse of court process on grounds of multiciplicity of action. In regard to suit No. FCT/HC/CV/278/2005 the appellants have been joined as 15th and 16th defendants but the trial Court has granted it without adverting to the fact that they are Federal Agencies not subject to the jurisdiction of the FCT High Court. Hence the plaintiffs, 3rd and 4th respondents have applied in suit No FCT/HC/CV/278/2005 to discontinue against the 15th and 16th defendants a they are Federal agencies not subject to the jurisdiction of the FCT High Court. Having cleared that out of their way, the 3rd and 4th respondents as plaintiffs have instituted the instant suit No. FCT/HC/CV/478/2005 against the 1st and 2nd defendants/respondents herein; in short challenging the competence of the 1st and 2nd defendants/respondents’ action in dealing with the Recognition of National Chairman or Acting National Chairman in regard to any other persons contrary to the party’s constitution and the 1999 Constitution. An office the 1st plaintiff/3rd respondent still holds.

The point has rightly been taken in regard to suit No. FCT/HC/CV/478/2005 that apart from joining of the 3rd and 4th defendants/appellants to the said suit the record has showed that no consequent amendments of the Statement of Claim reflecting the said joiner of the appellants as 3rd and 4th defendants to the suit have been effected; indeed no claims or reliefs have in fact been sought against them.

From the number of suits being bandied about in this appeal, the plaintiffs (3rd and 4th respondents) have instituted a number of the suits in the leadership tussle in the 4th respondent (i.e. APGA). This has generated question of abuse of Court process. The appellants have in this regard observed to the effect that categories of situations and conditions that ground abuse of process are not closed. And I agree. In other words the list is inexhaustive as each incident of abuse of Court process has to be established from the circumstances of each particular case as exemplified in the suit of Anyaduba v. N.R.T. Co. Ltd. (1990) 1 NWLR (Pt. 127) 397 at 407.

Along side this premise particularly, with respect, must be noted the fact that it is settled law that generally abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject-matter and on the same issues. See: Ogoejeofo v. Ogoejeofo (supra) and (Okafor v. Attorney-General of Anambra State (supra) The bottomline of these authorities in regard to abuse of process is that to institute an action during the pendency of another suit claiming the same relief is an abuse of Court process and the only course open to the Court is put an end the suit. See: Aruko v. Aiyeleru (supra). It does not matter whether the suit is on appeal, the subsequent action would constitute an abuse of process. The attitude of the Courts is to strike out the suit filed in abuse of process. Abuse of Court process therefore simply in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This manner of using Court process as obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impeding due administration of justice. See: Okorodudu v. Okoromadu (1977) 3 SC 21.

Therefore, to sustain a charge of abuse of process as in the instant suit there must coexist inter alia (1) a multiplicity of suits (2) between the same opponents and (3) on the same subject matter; and (4) on the same issues. It is against the backdrop of these conditions that one has on the issue of abuse of process in the instant matter to scrutinize the aforesaid suits – No FCT/HC/CS/278/2005:

All Progressives Grand Alliance & 3 Ors. v. Chief Victor Umeh & 13 Ors. and Suit No. FHC/ABJ/CS/478/2005 Chief Chekwas Okorie & Anor. v. Professor Maurice Iwu & 3 Ors. Certainly the parties are not the same and it is particularly so when the appellants are no longer parties in the suit No. FCT/HC/CS/278/2005. On the question of having the same parties in both suits the Court below has observe thus:

“I have looked through the facts on printed record and circumstances of initiating the suits before the Federal Capital Territory High Court and the Federal High Court Abuja. It is apparent that the end result of the two suits are meant to have an impact on APGA but the 3rd Respondent has grievance towards those he considered to be dissident factors in the party which suit is before the Federal Capital Territory High Court as FCT/HC/CV/278/2005. The Suit No. FHC/ABJ./CS/478/2005 before the Federal High Court is against the Chairman INEC and 1NEC, the 1st and 2nd Respondents challenging their intermeddling with the affairs of the party by giving recognition to the appointment of Chief Victor C. Umeh as the Ag. National Chairman of APGA in the letter dated 28.6.2006, contrary to the Constitution of the Party, 1999 Constitution of the Federal Republic of Nigeria and the Electoral Law. I cannot identify any multiplicity of action here or Abuse of the judicial process. Parties are permitted to air their grievance at the law courts as when there is a right there must be a remedy”, (underlining for emphasis)

I agree with this brilliant finding; it has captured at once the principles on abuse of process. It cannot be faulted. If I may recall, the appellants according to the record, have been joined as 15th & 16th defendants to suit No. FCT/HC/CS/278/2005. The joinder, however, has to be revoked when the plaintiffs discontinued against them i.e. 15th & 16th defendants. Interestingly enough, the appellants have taken the issue of multiplicity of suits as an abuse of process vis-à-vis the instant suit when the appellants are no longer parties to one of the suits i.e. FCT/HC/CV/278/2005. They cannot run away from that fact to hinge their entire case on the finding that as the two suits have impact on the leadership tussle of the 4th respondent (APGA) the instant suit without more constitutes an abuse of process. It is doubtful if they can make out a case of abuse of process on these peculiar facts. But without deciding the point I have however to express the reservation on their right to initiate the instant application this time when there is a big question mark hanging on it competence.

As the application has not been challenged on this ground I say no more on it except to wait for an opportunity when Counsel’s address is drawn to such an issue.

I now go on to demonstrate that moreso on the merits the charge of abuse of process here cannot stand. On the question of the same subject matter in both aforesaid suits – the instant suit No.FHC/ABJ/CS/478/2005 as per the record has been instituted to challenge the 1st and 2nd defendants/respondents on their power to attempt to confer recognition of National Chairman of Acting National chairman of the 2nd plaintiff/4th respondent to any other persons but the 1st plaintiff/3rd respondent contrary to the Party’s Constitution and an order of injunction. The suit No.FCT/HC/CV/278/2005 on the other hand is founded on a declaration that the 1st to 11th defendants are no longer members of the party and on the expulsion of the 1st and 14th defendants from the party. Again, the subject matter in either of the two suits is not the same. It is difficult to see how the charge of abuse of Court process can be made to stand on these facts; it cannot.

On whether the two Suits have raised the same issues, it goes without much debating of the point that this is not so. Based on the above careful appraisal of the two suits, the contending issues in both suits are not the same There can be no doubt therefore, that the conditions I have set out above to guide my discussion on abuse of process in this matter are non-existent in the two suits and therefore this issue has to be resolved against the appellants and in favour of the respondents. I have not found any abuse of Court process or the facts of the aforesaid two suits even though in the end they may have their roots in the tussle for leadership of the 4th respondent (i.e. APGA).

The point has to be made, all the same, that on the facts particularly or the question of the plaintiffs filing the two aforesaid suits contemporaneously there is no evidence of overreaching. Nor can the appellant be heard to complain of want of bona fides in filing both suits. The plaintiffs have showed reasonable causes of action in the two suits. I have expatiated on these above. This is not a case where the granting of the reliefs in one suit will appease in satisfaction the wrongs alleged in the other suit or where all reliefs accruing from a cause of action are being claimed in more than one action.

See: Savage v. Uwaechia (1972) 1 ANLR (Pt. 1) 251. The aforesaid two suits are founded on two separate and distinct causes of action. They have given rise to two separate and distinct reliefs as I have showed herein. I have in my discussion also showed that there is no ground contending that the disposal of any of the suits will completely dispose of the issues for determination in the other suit. And so, any pronouncement in the instant suit will have no effect whatsoever on suit No. FCT/HC/CV/278/2005. This is so even though the 15th and 16th defendants may be interested in the result of suit No. FCT/HC/CV/278/2005. Besides, even more importantly, the 3rd and 4th respondents/plaintiffs in the instant case have inspite of the joinder of 15th and 16th defendants made no claims, that is to say, have sought no reliefs against the 15th and 16th defendants in the said suit. It is my view therefore and in this regard I agree with the 3rd and 4th respondents.

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SC. 60/2007

Nigercare Development Co. Ltd. Vs Adamawa State Water Board & 3 Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, JSC

This is an appeal against the judgment of the Court of Appeal, Jos Division (hereinafter called “the court below”) delivered on 10th July, 2002 dismissing the appeal by the Appellants to it and affirming the judgment of the High Court Yola Judicial Division of Adamawa State holden at Yola. Dissatisfied with the said decision, the Appellants have appealed to this Court on five (5) Grounds of Appeal.

The facts briefly stated, are that the Appellant, has won the contract from the 1st and 2nd Respondents for the rehabilitation of water treatment plants in Yola, Numan and Mubi in Adamawa State (i.e. the Adamawa State National Water Rehabilitation Project) which was sponsored by the World Bank. On 4th July, 1997, the Sole Administrator of the 1st Defendant/Respondent terminated/revoked the said contract No. AAD 01 ICB even when the period for the execution of the contract, had not elapsed. As a result of this revocation, the Appellant as Plaintiff, instituted the action leading to the instant appeal. It claimed/sought the following reliefs in paragraph 47 of its Amended Statement of Claim: (not very correctly reproduced in the both Briefs of the parties).

“(i) A declaration that the 1st defendant’s letter No. ASWB/AD/S/206/111/529 dated 4/7/1997 signed by the Sole Administrator, Adamawa State Water Board on the subject of Water Rehabilitation Project No. AAD/-01-ICB between the Plaintiff and 1st Defendant is against the provision of the law establishing the 1st defendant, ultra vires, illegal, null and void.

(ii) A declaration that 1st, 2nd and 3rd defendants’ failure or neglect to pay the 15% of the Contract sum to Plaintiff even after submission of Advance Security Guarantees is a breach of the Agreement between the parties.

(iii) A declaration that in the circumstances of this case, the National Water Rehabilitation Project Contract No. AAD 01 ICB is still vaid (sic) (meaning valid) and subsisting.

(iv) An order of compensation in favour of the plaintiff against the 1st and 2nd defendants jointly and severally in the total sum of 1453,640,335.00 in line with the contract agreement of 15-7-1996 but signed on 15-8-1996.

(v) The sum of $404,381.66 being 15% of the contract sum in foreign components due to the plaintiff as advance from 1st defendant.

(vi) The sum of N988,488.51 being 15% of the contract sum in local components due to the plaintiff as advance payment from the 1st and 3rd (sic) (meaning 2nd) defendants.

(vii) Payment for Job already executed: L.C. N622,556.00; F.C. 254,682 U.S.D.

(viii) Any further and better orders”.

The 1st and 2nd Defendants/Respondents, counter-claimed. Pleadings were filed and exchanged. The case proceeded to trial with both parties calling witnesses and learned counsel for the parties addressing the court and the case, was adjourned for judgment. It was while the parties, were awaiting the judgment, that the learned trial Judge – Banu, J. in the course of writing the Judgment, suo motu, invited the learned counsel for the parties, to address him on the legal effect of the provisions of Sections 51(1) and (2) of Adamawa State Water Board Edict No. 4 of 1996 (hereinafter called “the Edict/Law”) and the non-compliance with its provisions. Said he at page 168 of the Records inter alia as follows:

“In the course of writing the Judgment, my attention was caught by the provisions of Section 51 of Adamawa State Water Board Edict No. 4 of 1996 which states:…………………………………………………….

“It is my view that this provision is crucial as it affects the 1st defendant and I would like counsel to address me on whether or not the provision has been complied with, and if not, its consequence”.

I note that there was no objection from any of the learned counsel for the parties who in fact, addressed the court in respect of the said issue. Thereafter, His Lordship, stated at page 170 thereof, thus;

“As I have already gone far in writing the judgment, these submissions by learned counsel will form part of the judgment to be at a date to be ………..”.

In his Judgment delivered on 22nd May, 1998, the learned trial Judge, struck out the Appellant’s said suit as well as the counter-claim. He found as a fact and held that there was non-compliance with the said provision of the Edict/Law and therefore, that the Appellant’s said suit, was incompetent.

Aggrieved by the said decision, the Appellant, appealed to the court below which dismissed the appeal hence the instant appeal.

The Appellant, has formulated three (3) issues for determination, namely:

“2.01 Whether the provisions of Section 51(1) and (2) of Adamawa State Edict (sic) No. 4 of 1996 is not inconsistent with the provisions of Section 236(1) and Section 33 of 1979 Constitution as amended and therefore unconstitutional and void (see Ground 1 and 2) sic.

2.02 Whether the learned Justices of Court of Appeal were right to have held that defendant need not PLEAD defence of pre-action notice in their Statement of Defence and that parties cannot waive this special defence Ground 3 and 4 (sic).

2.03 Whether plaintiff is not entitled to judgment on evidence led (Ground5)”.

On their own part, the Respondents, have formulated two (2) issues for determination, namely

“i. Whether the provision of Section 51(1) and (2) of the Adamawa State Water Board Edict No. 4 of 1996, is in conflict with Sections 33(1) and 236 of the 1979 Constitution (as amended), and therefore void to the extent of the inconsistency”.

Whether the court below was right to have concluded that the trial court was justified to have suo motu raised the issue of non-compliance vel non with Section 51(1) and (2) of Edict No. 4, 1996, requiring service of pre-action notice on the 1st defendant/respondent, despite the fact that, the issue was not pleaded in the joint statement of defence of the respondents”.

It could be seen that issue 2.01 of the Appellant, is the same as issue I of the Respondents. In my respectful view, the real or crucial issue as rightly stated by the court below, is whether the action of the Appellant, was/is competent or not having regard to the said provision of the Edict/Law. I note that the said issue 2.01 of the Appellant and issue I of the Respondent, are similar to issue 1 of the parties at the court below. However, since the reason of the trial court for its said decision, is/was based on the said provision of the Edict/Law, I will reproduce its provision. It provides as follows:

“51 (1): No Suit shall be commenced against the Board until one month has elapsed since a written notice to commence the suit shall have been served on the Board by the complainant or his agent.

(2) A notice under sub-section (1) shall state:

(a) The cause of action

(b) the relief sought, and

(c) the name and place of abode of complainant”.

As can be seen, Section 51(1), is a Statutory provision and it is mandatory while Section 51(2), is directory. My perusal of the Records, makes it abundantly clear to me, that the learned counsel for the Appellant either in the two lower courts or in their Brief in this Court, never at any stage, contend that the Appellant, complied with the said provision before instituting its said suit. Rather, the arguments all along, (i.e. in the two lower courts), have been that the Appellant, is/was not bound to comply with the provision because, according to it, it is the provision of an Edict and that it cannot in any way, postpone or suspend the right of the Appellant to be heard or restrict the jurisdiction of the trial court. I note however, that at page 199 of the Records, the learned counsel for the Appellant, inter alia, submitted that,

“the purport of Section 51 of the Edict is to oust this court’s jurisdiction in respect of the 1st defendant for the first 30 days by creating an impediment on the right of the Plaintiff to come to court……”.

See also pages 361 and 362 of the Records and paragraphs 4.06 and 4.07 of the Appellant’s Brief.

In my respectful view, the said provision, is a condition precedent as far as suits against the 1st Defendant/Respondent are concerned. Therefore, the failure of the Appellant to comply with it, clearly makes the suit Incompetent. Contrary to the submission of the learned counsel for the Appellant, the provision, does not seek to oust forever, the jurisdiction of the court but only temporarily. It just provides that unless the condition precedent is complied with, a complainant or Plaintiff, cannot, sue or initiate any action against the 1st Defendant. Period!

In the case of Prince Atolagbe & anor. v. Alhaji A. Awuni & 8 ors. (1997) 9 NWLR (Pt.522) 536; (1997) 1SCNJ. 1 where there was a split decision of 5:2 and also cited and relied on in the Respondent’s Brief, Mohammed, JSC, in his contribution, stated at pages 22-23 of the SCNJ inter alia, as follows:

“……… Conditions precedent ordered to be done before a litigant is entitled to sue, by reason of the provisions of some statute is not an ouster clause and not a device adopted by the Government to prohibit a judicial review. It is an additional formality and unless proved to be enacted with a view to inhibiting citizens from having access to the Courts, is not contrary to Section 6(6) (b) of 1979 Constitution. See Madukolu v. Nkedilim (1964) All NLR (Pt.2) 589”.

I will respectfully add, that it is not contrary to Sections 33(1) and 236 (1) of the 1979 Constitution.

In the case of Captain Amadi v. NNPC (2000) 10 NWLR (Pt.674) 76 (not 72 as appears in the Respondents’ Brief at page 8); (it is also reported in (2000) 6 SCNJ. l; (2000) 6 S.C. (Pt.1) 66; (2000) FWLR (Pt. 9) 1527 and (2000) 5 WRN 47), also cited and relied on in the Respondent’s Brief, again, in his contribution, His Lordship Mohammed, JSC at page 113 of NWLR in the same vein as in Atolagbe’s case (supra), stated inter alia, as follows:

“……….. It is instructive therefore that, compliance with the provisions of Section 11(2) of N.N.P.C. Act 1977 is a condition precedent to instituting a suit against the Respondent. Cases constantly occur in which, although everything has happened which would at common law prima-facie entitle a man to a certain sum of money, or vest in him certain right of action, there is yet something more which must happen, in the particular case, before he is entitled to sue, either by reason of the provision of some statute or because the parties have expressly agreed. This is something called a condition precedent. It is not of the essence of such a cause of action, but it is essential. It is an additional formality super-imposed on the law…….”

His Lordship, referred to Prince Atolagbe’s case (supra) and the English Supreme Court Practice (White Book) 1991) Edition Order 18/7/10.

Since I note that in respect of Issue No. 1 of the Appellant, the arguments are substantially and materially the same or similar to/as those proffered in the two lower courts and in this Court, I will deal with the same together with Issue I of the Respondents. The issue or question of pre-action Notice has been firmly settled in a number of decided authorities by this Court.

In the case of Katsina Local Authority v. Alhaji B. Makudawa (1971) (1) NMLR 100 at 105 also cited and relied on in the Respondent’s Brief, this Court – per Coker, JSC, stated inter alia, as follows:

“We are clearly of the view that Section 116(2) of the Local Authority Law prescribes a condition precedent to the competence of any action commenced against a Local Authority and that compliance with the sub-section is a pre-condition of such competence. The sub-section requires such notice as it therein prescribed to be served on the Local Authority and stipulates that at least one month shall expire before the suit can be legally commenced. It follows therefore, in our view, that where it is established that no such notice was served or that the sub-section is not otherwise complied with, any suit commenced in contravention of the provisions of the sub-section is wrongly commenced and should not be entertained by any court”.

Uwais JSC, (as he then was), held at page 107 of the above case, that the purpose of giving Notice of Claim to the Local Government is that it is not taken by surprise, but to have adequate time, to prepare to deal with the claim in its defence. That the purpose of the notice, “is not to put hazards in the way of bringing litigation against it.” See also the cases of His Highness Umukoro & ors. v. NPA & anor. (1997) 4 NWLR (Pt 502.) 656 at 667; (1997) 5 SCNJ. 113 – per Kutigi, JSC, (as he then was).

It should be noted that the said provision of

“No suit shall be commenced”, prohibits the commencement of all suits whatsoever. That it may be argued or contended that this opening phrase, may be very wide, is of no moment. In the case of Fawehinmi Construction Co. Ltd. v. Obafemi Awolowo University (1998) 6 NWLR (Pt.553) 171 at 190,194; (1998) 5 SCNJ. 44, Section 46(1) of the University of Ife Edict, 1970 which is in pari materia with Section 11(2) of the NNPC Act, 1977, (hereinafter called “the Act”), provides that service of the Notice shall be made upon the Corporation by the Plaintiff or his agent, was construed. It was held that the Section speaks of “no suit” and not “any suit”. That its provision, is not inconsistent with the provisions of Sections 6(6) (b), 33(1) and 236(1) of the 1979 Constitution because, it does not restrict access to the court. The case of Chief Osagie II & anor. v. Chief Offor & anor. 1 (1998) 3 NWLR (Pt.541) at 205 was followed. It is also reported in (1998) SCNJ. 122 Section 11(2) of the said Act, relates to all or any type of action. It is wider and all embracing and different in application, from Section 97 of the Ports Authority Act. See also the case of NPA v. Construction Generali (1962) 12 S.C. 81 at 95. In other words, it covers all suits and whatever causes of action and it is not limited to anything done pursuant to any Act or Statute.

In Captain Amadi v. NNPC case (supra), Uwais, CJN, (Rtd.) at page 8 of the NWLR, reiterated his said views in Katsina Local Authority case (supra). It was also held – per Karibi-Whyte, JSC. that the said purpose or purposes, of pre-action Notice, are legitimate and are recognized procedural provisions to give the defendant “breathing time so as to enable him or it, determine whether he or it, should make reparation to the Plaintiff. See also the case of Ngelela v. Tribal Authority, Nongowa Chiefdom (1953) 14 WACA 325 at 327. – where Sutton, PJ. stated inter alia, as follows:

“The language is imperative and would appear to debar a court from entertaining a suit instituted without compliance with its provision. The object of the notice is to give the defendant a breathing time to enable it determine whether he would make reparations to the Plaintiff

It was also held in Captain Amadi v. NNPC case (supra), that while the issuance of the Notice by a prospective Plaintiff, is mandatory, the particulars to be included in the Notice – i.e. the cause of action, particulars of claim, name and place of abode of the intending Plaintiff and the relief to be claimed, are directory.

In the case of Chief Nnonye v. Anyiahie & 2 ors. (2005) 1 SCNJ. 306 at 377; (2005) 1 S.C. (Pt. II) 96, (2005)1 SCM, 133, it was held – per Akintan, JSC, that the failure to serve a pre-action Notice on the defendant, gives such defendant, a right to insist on such Notice, before the plaintiff may approach the court. In other words, that non-service of a pre-action Notice merely puts the jurisdiction of a court on hold pending compliance with the pre-condition. A number of cases were referred to therein. In fact, failure to serve the said Notice amounts to an irregularity that renders the suit incompetent.

In the recent case of Bakare v. Nigerian Railway Corporation (2007) 17 NWLR (Pt.1064) 606 at 656; (2007) 7 S.C.N.J. 131; (2007) 7 S.C. 1(2007)12 SCM Pt.2 217 – per Chukwumah-Eneh, JSC, where by virtue of Section 83 (2) of the Nigerian Railway Corporation Act, no suit shall be commenced against the Corporation, until three (3) months at least after written Notice of the intention to commence the same, shall have been served upon the Corporation by the intending plaintiff or his agent. Section 83(2) of the said Act, is also in pari materia with Section 51(1) and (2) of the Act in the instant case. It was held that the said Section, provides a form of limitation period within which an action against the Corporation must be commenced while Section 83(2) provides for a pre-action Notice which must be given to the Corporation, That the two requirements, must be met before any action against the Corporation is instituted otherwise, failure to comply with either of the provisions, will lead to such an action, being declared incompetent. The case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 was referred to. The case of Eboigbe v. The NNPC (1994) 5 NWLR (Pt.347) 649 also reported in (1994) 6 SCNJ. 71. was also referred to where Section 12(1) & (2) of the NNPC Act Cap. 320 Laws of the Federation, 1990, provides for the giving of pre-action Notice within Twelve (12) months. The said Section also provides that no action shall be taken against the Corporation or its employees and no action shall be taken against these persons for any act done in pursuance of or execution of any Act or Law or any public duty or authority unless commenced within twelve (12) months after the act complained of.

Significantly and interestingly, the Appellant and its learned counsel appreciate and concede the purpose of a pre-action Notice. At paragraph 4.06 page 5 of their Brief, the following submissions appear inter alia;

“It is therefore Plaintiffs (sic) humble submission that the purpose of Section 51(1) and (2) of Edict No. 4 of 1996 is to now protect 1st Defendant and put an obstacle on the path of the prospective claimants which they have to scale before commencing a suit. The purpose is also to outrightly suspend the Plaintiff’s right of action………”.

[the underlining mine]

Great! This is what this Court has stated and restated in the authorities reproduced by me in this Judgment. On this concession, all the fuss by the Appellant in its Brief and under this issue, become with respect, a complete exercise in futility and a sheer waste of the Court’s time.

In paragraph 4.07 of the said Brief, the following appear:

“The above provisions therefore, it is submitted in as much as it now delays the complainant from coming to court or having his complaint adjudicated by the court immediately clearly derogates from the provisions of Section 33(1) of 1979 Constitution that entitled complainant to a fair hearing, within a reasonable time. The provision of Section 51(1) have the effect to temporarily shut the doors of the court against a complaint albeit for 30 days, in all circumstances where a notice is given and for ever where no such notice is given by the complaints”.

[the underlining in bold mine]

I note that this is another concession. I will now deal even briefly with fair hearing especially where it is also submitted in paragraph 4.08 of the Appellant’s Brief, that the said provision, is

“an attempt to circumscribe the clear provisions of Section 33 and Section 236 (1) of the 1979 Constitution as amended. The same Section delays, postpone and obstruct the immediate access of a claimant to the court. The right to access or immediate access to court is a constitutional right. See the case of Eyesan v. Sanusi (1980) 1 SCNLR 353 at 35 4ratio 6 ……..”.

[the underlining mine]

Access to the court, it is said, means approach or means of approach to the court without constraint – per Karibi-Whyte, JSC, in Captain Amadi v. NNPC (supra) at page 111 of the NWLR. A condition precedent is defined as one which delays the vesting of a right until the happening of an event. See Prince Atolagbe and Captain Amadi’s cases. It has to be borne in mind always and this is settled, that the constitutional right of access to the court, does not however, preclude statutory regulations of the exercise of the right.

I have in this Judgment, shown that it is now firmly settled that a/the pre-action Notice in the suit leading to this appeal, is not inconsistent with Section 33(1) of the 1979 Constitution and this puts to rest, in my respectful view, any argument, submission or contention to the contrary. It is therefore, not unconstitutional and void as submitted in the Appellant’s Brief. This is also because, the said provision does not, oust the jurisdiction of the court or derogate from the rights of the citizen. It only post-pones the time for instituting a suit. In my view, (30) thirty days or one month, cannot be said to be an inordinate time or period.

Issue 2.02 and 2.03 of the Appellant and Issue ii of the Respondents.

I have stated and held the view that the crucial issue in this appeal to be determined, is the competency of the suit of the Appellant. I have held and concluded that the said action of the Appellant, is incompetent. This takes complete care of answer to the controversy in this suit. In other words, a statute such as Section 51(1) and (2) of the Edict/Law requiring a pre-action Notice to be given to the defendant, not only goes to the competence of the suit, but it also touches on the jurisdiction of the court to entertain such suit. Where there is non-compliance of the Statute that is shown to be mandatory, the suit and/or proceedings is/are a nullity however well conducted. See Madukolu v. Nkemdilim, Prince Atolagbe v. Alhaji Awuni (supra) and Chief Obaka & ors. v. Military Governor of Kwara State & ors. (1994) 4 NWLR; (1994) SCNJ, 121 (Pt. 336) 26, just to mention but a few.

In the case of Eimskip Ltd. v. Exquisite Industries (Nig.) Ltd. (2003) 4 NWLR (Pt.809) 88 at 118; (2003) 1 SCNJ. 317, Mohammed, JSC, stated inter alia, as follows:

“…………. Where there is fundamental failure to comply with the requirement of a statute the issue is not of irregularity, but a nullity”.

From all these firmly established authorities, with profound humility, it is idle therefore, to argue or submit as has been done in paragraphs 5.02 of the Appellant’s Brief that –

“the law prescribing pre-action notice is a privilege, conferring a special advantage in favour of the first defendant in this case and it is left for the 1st defendant to take advantage of the special provision at the trial or waive same by proceeding with the case without insisting on its legal rights”.

In the first place, where an issue of competence or jurisdiction of a court, is fundamental and crucial, the issue of waiver, cannot be of any consequence. See the case of Onyema & ors. v. Oputa & ors. (1987) 3 NWLR (Pt.60) 259; (1987) 7 SCNJ.176. Secondly, if a/the defendant, has a legal right conferred on him/it by a statute, it is again with respect, idle to submit as has been done in the Appellant’s Brief, that the defendant, should waive same and proceed with the hearing of the case. However and significantly, the learned counsel to the Appellant, concede that such a defendant, can take advantage of the said provision. In the circumstances, there will be no need (which will not even arise or be necessary), to start pleading such pre-action Notice as a defence.. Being a question of jurisdiction, the issue can be raised by a defendant or even by the court suo motu and thereafter hear from the parties as was done in this case See the cases of Alhaji K. Abubakar & 10 ors. v. Jos Metropolitan Development Board & anr. (1997) 10 NWLR (Pt. 524) 242 at 250-251 C. A. – per Edozie, JCA, (as he then was) and Katto v. CBN (1991) 9 NWLR (Pt.214) 126 at 149; (1991) 12 SCNJ. l – per Akpata, JSC, also cited and reproduced in the Respondent’s Brief. This issue, again with respect, is a non-issue in the circumstances of this case. It is again, an academic exercise albeit, in futility. I so hold.

In respect of Issue 3, how can the Appellant be entitled to Judgment, when it has not started “to walk how much more to run”? so to say I or one may ask. When once an action is a nullity, I repeat, it is of no moment how well the case or proceeding, is conducted. With respect, this issue, in the circumstances again, does not arise. At best, it is hypothetical and all arguments in respect thereof by the Appellant, is again an exercise in futility. I repeat, service of pre-action Notice, is a condition precedent to the exercise of jurisdiction by a court of trial. In the case of Odofin & anor. v. Chief Agu & anor. (1992) 2 NWLR (Pt.229) 350 at 375; (1992) 3 SCNJ. 161 also cited and relied on in the Respondents’ Brief, this Court – per Akpata, JSC, stated inter alia, as follows:

“……….. The question of jurisdiction is not a matter to be taken for granted. A court cannot casually assume jurisdiction over a matter when conditions precedent are not satisfied or do not appear to have been satisfied……”.

In the case of Attorney-General of the Federation & 2 ors. v. Sode & 2 ors. (1990) 1 NWLR (Pt.128) 500 at 538; (1990) SCNJ. 1 – Karibi-Whyte, JSC, (Rtd.) in his concurring judgment, stated inter alia, as follows:

“……….But it is also well settled that the exercise of a right of action is derived from the fundamental law of the land, or any statute specifically conferring such right. The Court can only exercise jurisdiction with respect to a right of action and cannot assume jurisdiction unless the plaintiff who has brought the action before it has a right of action – See Bello & ors. v. A-G for Oyo State (1986) 5 NWLR (Pt. 45) 828. This court has in many recent decisions defined what is a right of action”

[the underlining mine]

From the above pronouncements of this Court, the learned trial Judge’s decision or discretion to raise the issue and hear from the learned counsel, for the parties is/was, in my respectful view, right, justified and cannot be faulted by me.

Before concluding this Judgment, I will touch or and deal briefly, with the issue of the learned trial Judge raising the said issue of pre-action Notice suo motu because with respect, of the unnecessary fuss in the submissions in the Appellant’s Brief in paragraph 3.09 at pages 3 and 4. In the case of Lt.-Col. Mrs. Finnih v. Imade (1992) 1 SCNJ.87 at 107-108, Karibi-Whyte, JSC, stated inter alia, as follows:

“……….. It is a strange thing to say that the Judge cannot apply principle not referred to it by counsel. The day such a principle of law is accepted, the true demise of the independence of the Judge in deciding cases before him is assured. The oath of the judge is to do justice according to law and to all manner of people without fear or favour, affection or ill-will”.

May such a day never come, although it will not come. In Alhaji A. Abubakar & ors. (case) (supra), Edozie, JCA, (as he then was), stated inter alia, as follows:

“The court can on its own initiative raise the question of its jurisdiction even though the parties have failed to do so because mere acquiescence does not confer jurisdiction. See Onyema v. Oputa (1987) 3 NWLR (Pt.60) 259; Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377; Attorney-General of the Federation v. Socle (1990) 1NWLR (Pt.128) 500”.

In the case of Bakare v. Nigerian Railway Corporation (supra), Mukhtar, JSC, at pages 659-660, opined inter alia, as follows:

“……….. A Judge in the course of writing his judgment is at liberty to have recourse to any provision of the law that is relevant to the subject matter of the case in controversy in order to completely give the judgment the attention it deserves, to do justice to it, and to avoid a miscarriage of justice. See Onuoha v. State (1988) 3 NWLR (Pt.83) page 460.

A Judge is also enjoined to interprete the provision of law and give it its grammatical and ordinary meaning and not to ramble and distort its construction. See Amadi v. N.N.P.C. (2000) 10 NWLR (Pt.674) page 76, First Bank of Nigeria PLC v. Ibennah (1996) 5 NWLR (Pt.451) page 725; Shell Petroleum Development Co. (Nig.) Ltd. v. Federal Board of Internal Revenue (1996) 8 NWLR (Pt.466) page 256 and Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) page 116″

Mr. Jegede, can now see that he was not standing on a firm ground, when he made those submissions in the said Brief.

In concluding this Judgment, I hold with respect, that there is no merit whatsoever in this appeal. What is more, in spite of the repetitions of same issues and arguments in the two lower courts and even in this Court, there are concurrent Judgments of the two lower courts and the attitude of this Court, is not to disturb or interfere with the findings of fact of the said courts. If learned counsel had graciously taken or appreciated the stance of the learned trial Judge especially, the hint in view of the clear and unambiguous decisions of the Court of Appeal and this Court and since he believed that judgment should have been entered in favour of his client – the Appellant, he should and ought to have considered complying with the mandatory provision of the Edict/Law without wasting these twelve (12) or thirteen years, pushing on a course that will and has in fact ended in an exercise in futility. I have no hesitation in dismissing this appeal and affirming the said decision of the court below which affirmed the Judgment of the trial court.

Costs follow the events. The Respondents are awarded N10,000.00 (ten thousand naira) costs payable to them, by the Appelland.

---

SC 377/2002

H.R.H. Igwe G.O. Umeonusulu Umeanadu Vs Attorney General Of Anambra State & Anor

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, JSC

The Appellant in this appeal who was the Plaintiff at the Anambra State High Court of Justice sitting at Nnewi, is the Traditional Ruler of Ekwulumili in Nnewi South Local Government Area of Anambra State. In December 1994, he planned to hold a festival called ‘Asala’ during which he arranged to confer chieftaincy titles to deserving indigenes of his domain. The Appellant then sought approval of the State Government for the exercise which was duly granted. However, few days to the date of the festival, a letter was delivered to the Appellant purporting to have come from the Government House Awka, canceling the festival. The Appellant accused the 2nd Respondent Ezeani Adolphus Ibeneme Anyaso, who was the 2nd Defendant at the trial Court, of masterminding the plot resulting in the cancellation of the festival and therefore logged a complaint on the commission of various criminal offences against him to the Anambra State Commissioner of Police who ordered investigation into the matter. On the completion of the Police investigation against the 2nd Respondent, the Police case diary was sent to the State Director of Public Prosecutions for advice. The opinion of the Director of Public Prosecutions that no prima facie case was made up against the 2nd Respondent was forwarded to the Police.

Aggrieved by this development, the Appellant applied to the Attorney General of the State who was the 1st Defendant at the trial Court and 1st Respondent in this Court for a fiat to initiate private criminal prosecution against the 2nd Respondent. This request was refused by the 1st Respondent resulting in the Appellant filing an action by Originating Summons against the 1st Respondent as Defendant/Respondent principally for the trial High Court Nnewi to compel the 1st Respondent to grant fiat to the Appellant to prosecute the 2nd Respondent for the alleged offences committed by him in aborting the festival. The 2nd Respondent on becoming aware of the Appellant’s pending action, applied at the trial High Court to be joined and was accordingly joined as 2nd Respondent to the Originating Summons proceedings on 24th November, 1996 which was set down for hearing on 27th January, 1997.

Meanwhile the Appellant who was anxious to have the 2nd Respondent prosecuted initiated criminal proceedings against him at the Chief Magistrate Court Nnewi. However, in reaction thereto, a motion on notice for stay of proceedings in the criminal prosecution was filed by the learned Counsel to the 2nd Respondent at the Chief Magistrate Court. The same Counsel also proceeded and initiated contempt proceedings against the Appellant and his Counsel at the High Court where the Appellant’s action against the 1st and 2nd Respondents was awaiting hearing. In order to secure the step he had already taken in having the 2nd Respondent prosecuted at the Chief Magistrate Court, the Appellant filed a notice of discontinuance dated 30th April, 1997, at the High Court on 7th May, 1997, to terminate proceedings in the Originating Summons already fixed for hearing on 27th January, 1997.

However, when the motion for committal of the Appellants’ and his Counsel came up for hearing at the trial High Court, the Appellant’s Counsel raised a number of objections to the hearing of the motion which were duly heard and dismissed by the learned trial Judge on 26th March, 1998. The Appellant’s appeal to the Court of Appeal Enugu Division against the dismissal of his preliminary objections by the High Court, was heard and dismissed on 10th July, 2000, hence the present further and final appeal by the Appellant to this Court raising the following two issues for determination from the grounds of appeal filed by him. The issues are –

“1. Whether the Court of Appeal was correct in its decision that the non-service of an Originating process (in this case From 5) on the 2nd Respondent was a mere irregularity?

Whether the Court of Appeal was correct in its decision that the learned trial Judge was correct in refusing a discontinuance of the suit as sought by the Appelalnt?”

These two issues were adopted in the 1st Respondent’s brief of argument though with a slight variation to suit the understanding of the 1st Respondent to the issues. No brief of argument was filed for the 2nd Respondent because he and his learned Counsel have died before the appeal came up for hearing.

In his argument on the first issue, learned Counsel to the Appellant cited the case of Madukolu v. Nkemdelim (1962) 2 S.C. N.L.R. 341 and Order 3 Rule 10 of the High Court of Anambra State Civil Procedure Rules 1988 and submitted that the Respondents who had failed to fulfill the condition precedent to the exercise of jurisdiction of the trial High Court in the matter by not complying with the requirements of Rule 10 of Order 3 of the High Court Rules in serving Form 5 on the 2nd Respondent, the Court below was wrong to regard this fundamental non-compliance with the rule, as a mere irregularity. Learned Counsel maintained that whether a party joining a suit shall have appeared or not, the issuance and service of Form 5 on such a person is still mandatory, making it a condition precedent to the exercise or assumption of jurisdiction over such person by the Court; that there being no provision for a waiver express or implied in the provision of Order 3 Rule 10 of the Rules, the Court below was in error in reading into the Rules exemption clauses which were not contemplated by the law makers, particularly the issue of miscarriage of justice. Learned Counsel concluded that where special statutory provisions are made for filing of a claim, the procedure so laid down ought to be followed as decided by this Court in Oseky Omon v. Ojo (1997) 7 S.C.N.J. 367 at 368.

For the Respondents however, it was argued that Order 3 Rule 10 of the Rule of Court were merely to afford the parties whose interest are manifest in pending suits, opportunity of being heard on joining as parties; that having regard to the affidavit of the 2nd Respondent to join the proceedings in the Originating Summons as a party, the 2nd Respondent was already fully equipped to defend himself without necessarily waiting for the service of Form 5 on him.

In the judgment of the Court below now on appeal, the same issue on the complaint regarding the non service of Form 5 on the 2nd Respondent, was raised and Fabiyi JCA in the lead judgment dealt with it at pages 98 – 99 of the record as follows –

“I should state it here clearly for the avoidance of doubt that where an extraneous legal personality is joined to an existing suit on the application of a party thereto on suo motu by the Court, service of Form 5 on such a new party is sine qua non. In such instance, Form 5 shall be served on him to make him attend the Court. It is only then that the Court will be imbued with jurisdiction. On the contrary, as in this case, where the 2nd Defendant/Respondent applied on his own volition to be joined and he was joined in his presence, further service of FORM 5 on him will merely be a formality. It may amount to an ‘over-kill.’ FORM 5 may be served on him. It is an instance where the word ‘shall’ can be reasonably interpreted to mean ‘may.’ It is not in every case that the word ‘shall’ imports a mandatory meaning into its use. See Welcome Foundation Ltd. v. Lodeka Pharmacy Ltd. & Or. (Supra) at pages 207 – 208.”

I completely agree with the Court below on the interpretation and application of the provisions of Order 3 Rule 10 of the Anambra State High Court Rules. Taking into consideration that the joinder of the 2nd Respondent to the Appellant’s proceedings in the Originating Summons filed by him, was not at the instance of the Appellant or the 1st Respondent who were original parties in the action but at the instance of the 2nd Respondent on his own application filed by his own Counsel both of whom were present in the Court on 24th October, 1996 when the application for joinder was granted by the trial Court, for the Appellant to insist that the Respondent must be served with Form 5 before he could have been considered as having joined the action, is to assume responsibility which does not belong to the Appellant. The 2nd Respondent having taken the advantage or opportunity provided for his benefit under Order 3 Rule 10 of the Rules, the Appellant cannot hide under the same rule to kick out the 2nd Respondent from the Appellant’s action to which the 2nd Respondent had been rightly joined on the orders of the trial Court. Since the 2nd Respondent is not complaining of the alleged non-service of Form 5 on him, the Appellant, in my view, is the least person qualified to complain on his behalf. I therefore agree with the Court below that failure to serve Form 5 on the 2nd Respondent in compliance with Order 3 Rule 10 of the Anambra State High Court Rules in the present case is a mere irregularity which did not occasion any miscarriage of justice liable to have affected the jurisdiction of the trial Court. This takes care of the first issue for determination which I hereby resolve against the Appellant.

The second issue for determination is whether the Court of Appeal was correct in its decision that the learned trial Judge was correct in refusing a discontinuance of the suit as sought by the Appellant. It was argued in support of this issue by the Appellant that following the application filed by the Appellant to withdraw his action against the Respondents on 12th March, 1997, the matter was adjourned to 28th May, 1997 for mention on which date the Respondents told the Court that they were not opposed to the application to withdraw the action but the trial Court gave no reason for not terminating the action as sought. Learned Counsel conceded that although the action was earlier fixed for hearing which supported the requirement of leave of Court for the withdrawal or discontinuance of the action as held in the cases of Akukalia Alfed Aghadiuno & Ors. v. Ekegbo Onubogu (1998) 4 S.C.N.J 8 at 93 and Nwachukwu & Ors. v. David Eze & Ors. (1955) 15 W.A.C.A 36, the situation in the present action which was later adjourned for mention, is quite different particularly when the learned Counsel on the other side were not opposing the application of the Appellant. Learned Counsel therefore urged this Court to allow the appeal on this issue, as no valid reason was advanced by the Court below for the refusal by the trial Court to grant the application.

In the 1st Respondent’s brief of argument, learned Counsel stressed that the action filed by the Appellant was first set down for hearing on 27th January, 1997, while the Notice of discontinuance was filed by the Appellant on 7th May, 1997 well after the date set for the hearing of the case. Counsel referred to Order 22 Rule 4(1) of the High Rules of Anambra State, 1991 and submitted that leave of the trial Court was required to give effect to the Appellant’s notice of discontinuance relying on a number of cases, such as Giwa v. John Holt & Co. Ltd. 10 N.L.R. 77; Okoro Audu v. Okoromadu (1997) 3 S.C. 21; Nwachukwu v. Eze (1955) 15 W.A.C.A. 36; Akukalia Alfed Aghadiuno & Ors. v. Ekegbo Onubogu (1998) 4 S.C.N.J 8 at 93 and Leonard Eronini & Ors. v. Francis Iheuko (1989) 2 N.W.L.R. (Pt. 101) 46 at 56.

I may observe at this stage that the provisions of Order 22 Rule 4(1) of the Anambra State High Court Rules which are in contention in the present case are in pari materia with the provisions of Order 47 Rule 1 of the High Court Rules of Eastern Nigeria which came under consideration by this Court in the cases cited and relied upon by the 1st Respondent in support of his argument that leave of the trial Court was required before the Appellant’s notice of discontinuance could take effect. In Nwobu Nwachukwu & Ors. v. David Eze & Ors. (1955) 15 (W.A.C.A.) 36 the West African Court of Appeal interpreting provisions of Order XLIV Rule 1 of the old Supreme Court (Civil Procedure) Rules CAP 211 of the Laws of Nigeria, 1948, had this to say on notice of discontinuance –

“Leave of the Court is necessary to discontinue a suit on or after the date fixed for hearing.”

The correct interpretation and application of the rule therefore is that if notice of discontinuance is filed on or after the date the action was first fixed for hearing, the learned trial Judge has a discretion to grant or refuse the application on terms as the case may be. Coming back home to one of the decisions of this Court in Leonard Eronini & Ors. v. Francis Iheuko (1989) 2 N.W.L.R. (Pt. 101) 46 at 56, Obaseki JSC stated the position of the law on the subject of the interpretation and application of the provisions of Order 47 Rule 1 of the High Court Rules of Eastern Nigeria on notice of discontinuance thus –

“It is clear therefore that a Plaintiff and or a Defendant who counter-claims may withdraw his claim or counter-claim at any stage of the proceedings before judgment. In some cases (no leave is required), these are mainly in circumstances where no date has been fixed for hearing. No leave is required. However, where the case has been fixed for hearing, leave to withdraw is required as the Rule gives power to the Court to allow discontinuance. Leave may be granted on terms as to costs and as to any subsequent suit and otherwise as to the Court may deem just.”

See also Akultalia Alfred Aghadinno & Ors. v. Ekegbo Onnbogn (1998) 5 N.W.L.R. (Pt. 548) 16 at 28 – 29.

In the present case therefore, there is no dispute whatsoever that the Appellant’s notice of discontinuance was filed after the Appellant’s action had already been fixed for hearing.

Thus the Appellant not having sought and obtained the leave of the trial Court to discontinue his action against the Respondents, that action remains firmly before the trial Court for determination in accordance with the law. The Court below was therefore right in its decision that the trial Judge was correct in refusing or ignoring a discontinuance of the suit as sought by the Appellant in the absence of the required leave under the law.

On the whole, there is no merit at all in this appeal. The appeal is accordingly hereby dismissed and the decision of the Court below is affirmed.

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SC 283/2002

Major Bello M. Magaji Vs The Nigerian Army (2008)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, J.S.C

This appeal involves the beastly, barbaric and bizarre offence of sodomy; a more common place name is homosexual or homosexuality. It is against the appellant, former Major Bello Magaji. He wore Staff No. N/6604 in the Army.

The victims are Emmanuel Enega (PW1), Joseph Unigbe (PW2), Mohammed Abubakar and Isaac John. Emmanuel Enega was 17 when he gave evidence before the General Court Martial. He was a student of the Army Cantonment Boys Secondary School, Ojo. Augustine Oscar Ayewa was the errand boy of Major Magaji. He made the first contacts. He contacted Joseph Unigbe for the business. Joseph called Ayewa, Oscar, and so I will call him Oscar too. Oscar told Joseph to have his bath as he wanted him to go out with him. Joseph needed the company of his friend Emmanuel and he asked him to join in the outing. There are two Josephs, Joseph, the Prosecution Witness No. 2 and Joseph, one of the errand boys of Magaji.

The common evidence of Emmanuel and Joseph is that they were asked to drink a bottle each of small stout which intoxicated them. It was in their state of intoxication that the appellant performed the dirty act of sodomy on Emmanuel, and others.

Perhaps it is better to hear from the mouths of Emmanuel and Joseph to appreciate the ordeal or pain they went through. Emmanuel as PW1, said in his evidence in-chief at pages 23 and 24 of the Record, and I will quote the evidence in very large parts:

“When I went inside, I saw Joseph with Oga Magaji. Then Oga asked me my name, then I told him my Joseph (sic) said yes so he asked Joseph if he knew me and Joseph said yes so he said I should go inside and sit down. Then when we went inside, I saw Mohammed and he said it has been long he was inside, he overslept. Then I asked Joseph the time they came there. Joseph said it has been long, that Mohammed took a bottle of Gulder that’s why he went asleep. By then, Sam came in, brought a bottle of small stout and gave me to drink, but I said I didn’t want to drink because I was not used to it, but he said if I don’t drink it I wouldn’t work for Oga, he will not accept me. Then he opened the small stout for me. I took a little out of it and it was bitter, I couldn’t take it, so I gave it to Joseph Unigbe who took the rest. After 5 minutes my eyes were turning me Joseph said me and Mohammed should go inside the bedroom to take a bath so that our eyes will stop turning us we accepted took our bath and when we wanted to put our cloths on, Joseph brought out one Army singlet, shirt and nicker, and a night gown and he said we should put them on we asked him why. He said we could not go home that patrol will hold us, that we had to sleep till the following day so we accepted and put them on. Then he showed us the guest room that we should go inside that that is where we were going to sleep. All of us went inside the guest room, suddenly, Joseph went outside saying he was going to collect something from the sitting room. When he went out, just immediately he went out then Maj. Magaji came inside the room. When he came inside, because I and Mohammed were sleeping on the bed he sat on the bed and asked us what we were discussing, we said nothing. It was then he removed his singlet and removed Mohammed’s own and started romancing Mohammed’s body and used my hand and put it on his tommy and said that I should be romancing his tommy. After that he off his nicker and off Mohammed’s nicker and he sexed Mohammed through the anus. Then Mohammed shouted that this wasn’t what Joseph told him that he was coming to do there. Then Oga stood up and Mohammed went out. Before Mohammed went out, he told Mohammed to bring a white container. When Mohammed brought the container the container was filled with cream, so he used the cream to rob our pains; I and Mohammed and then Mohammed went out then Oga wanted to use me too. He turned me upside down and used his penis and put it into my anus then, I shouted that I can’t take it that is not what Joseph told me too then he said I should go out.”

Joseph, in his evidence in-chief, said at page 28 of the record:

“There was a day, it was on a Friday evening, I was standing in my area, then Oscar called me and said that I should go and take bathe that he will take me to somewhere. I thought that it was joking matter because I use to fear that boy before, but I took my bathe. After taking my bathe, he gave me transport fare to go to camp 1, at the officers’ mess. He said he was coming to meet me there. He told me that he was taking me there to go and do a contract of ridges not knowing that he was taking me there to go and do another thing when we enter Maj. Magaji’s house, they gave me small stout to drink. I said no that I have not tried it before. They said I should try it that it is only a bottle of small stout. When I drank it, it was bitter so I told them I can’t finish it but they urged me to finish it. After finished drinking my eyes started turning me. Then the officer told me to go into his bedroom and lie down so that my eyes will steady. I went inside and lay on the bed. In the night the officer came into the room and started romancing my body so I was thinking within me, ah, this man is a senior officer, how can he be doing a thing like this but I was afraid to speak out so he told me to lie down on the floor and turn my back, then I refused I told him I can’t do that, so he brought a container of cream and said I should be robbing the cream on his penis. After sometime, I told him I had to be going because it was getting late in the night. He said I shouldn’t worry that I should go and bath. After my bath he gave me N1500.00k and said I should give Oscar N500.00k for bringing me. Then when I came out I gave Oscar N500.00k and it remained N1000.00k. Out of the N1000.00k Oscar collected N100.00k and it remained N900.00k. From the N900.00k, I bought things paid small small credit I was owing and bought school uniform for myself.”

The following evidence came out under cross-examination of Joseph at page 29 of the record:

“Ques: Wait, you said you were sleeping and Mohammed came and woke you up that he has finished the job

Ans: Yes sir.

Ques: What job did he tell you that he has finished

Ans: He said that the man has already sexed them.

Ques: What do you mean by sex them What did he say

Ans: He said the man give him a cream to rub on his penis and put his penis in his anus to sex him.

Ques: What do you mean sex him

Ans: He put a cream in his penis and put in his anus.

Ques: And did what

Ans: And sleep with him.

Ques: What do you mean sleep with him

Ans: Sex him.”

The General Court Martial convicted the appellant and sentenced him to seven years. His appeal to the Court of Appeal was dismissed. He has come to the Supreme Court. Briefs were filed and exchanged. Appellant formulated five issues for determination:

“1. Whether the Court Martial convened by Brigadier-General P. N. Aziza was competent, having regards to the fact that there was no prior investigation of the charge against the appellant in the manner prescribed by law and that the appellant was not under his command. (GROUNDS 1 & 2).

2. Whether the lower court was right when it held that the prosecution witnesses testified on oath. (GROUNDS 3 & 4). .
3. Whether the lower court was right when it upheld the conviction of the Appellant for the offence of sodomy as created under Section 81(1)(a) of the Decree. (GROUNDS 5, 6 & 7).
4. Whether the lower court was right when it upheld the admissibility of the purported statement of the appellant which was alleged to have been obtained under Duress and was tendered from the bar. (GROUNDS 8 & 9).
5. Whether having regard to the Records of Proceedings of the Court Martial the lower court was right when it came to the conclusion that the Appellant was given a fair hearing. (GROUNDS 10, 11 & 12.)”

The respondent adopted the above five issues.

Learned counsel for the appellant, Mr. Robert Clarke, Senior Advocate of Nigeria, citing Madukolu v. Nkemdilim (1962) 1 All NLR 587,(1962) 2 SCNLR 341 submitted on Issue No.1 that the Court Martial convened by Brigadier-General P. N. Aziza for the trial of the appellant lacked competence and therefore had no jurisdiction, as there was no prior investigation of the charge against him in the manner prescribed by law. He referred to sections 123 and 124 of the Armed Forces Decree, 1993 and the cases of Agusiobo v. Onyekwelu (2003) 14 NWLR (Pt. 839) 34; Kallamu v. Gurin (2003) 16 NWLR (Pt. 847) 493; Eimskip Ltd. v. Exquisite Ind. Ltd. (2003) 4 NWLR (Pt. 809) 88; N.A.F. v. Obiosa (2003) 1 SCNJ 343 and Emuze v. Vice-Chancellor, University of Benin (2002) 10 NWLR (Pt. 828) 378 on the use of the word “shall” and jurisdiction of the court.

He submitted on Issue No. 2 that the Court of Appeal was wrong in holding that the prosecution witnesses testified on oath. He contended that the reproduction of FORM D2 without more is no proof that the prosecution witnesses were duly sworn, as the Form was not completed with relevant information and particulars as to the names of the witnesses, and whether they were sworn on the Holy Bible or the Holy Quoran. He submitted that the findings of the Court of Appeal are perverse. He cited section 138(2) and (5) of the Decree and Agusiobo v. Onyekwelu (supra); Kallamu v. Gurin (supra); Eimskip Ltd. v. Exquisite Ind. Ltd. (supra); Ojong v. Duke (2002) 14 NWLR (Pt. 841) 581 and Owoyemi v. Adekoya (2003) 18 NWLR (Pt. 852) 307.

On Issue NO.3, learned Senior Advocate submitted that the Court of Appeal was not right in upholding the conviction of the appellant, for the offence of sodomy. He contended that the offence was not proved by the prosecution. Pointing out that Mohammed Abubakar and Isaac. Jonah did not testify at the trial, learned Senior Advocate argued that the charge ought to have failed in the General Court Martial. He cited The Criminal Law and Procedure of the Six Southern States of Nigeria paragraphs 1685, page 633, sections 81 and 214 of the Decree, section 179(5) of the Evidence Act and the following cases: Okoyomon v. The State (1973) 8 NSCC 9;(1973) 1 SC 21; N.A.F. v. Obiosa (2003) 4 NWLR (Pt. 870) 233 and Alaukwu v. State (1956-84) Vol. 10 Digest of Supreme Court Cases 63.

On Issue No.4, learned Senior Advocate submitted that the Court of Appeal was wrong in upholding the decision of the General Court Martial admitting the pre-trial statement of the appellant, Exhibit 1. He urged the court not to attach any evidential weight to the exhibit. He cited sections 192 and 193 of the Evidence Act and the following cases: Famakinwa v. Unibadan (1992) 7 NWLR (pt 255) 608; Anatogu v. Iweka (1995) 8 NWLR (Pt 415) 547; Iyanda v. Laniba (2003) 8 NWLR (Pt 810) 267; Edoha v. Attorney-General. Akwa Ibom State (1996) 1 NWLR (Pt 425) 488); Ajayi v. Fisher (1956) 1 NSCC 82,(1956) 1 SCNLR 279 and Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) 158.

Learned Senior Advocate submitted on Issue No. 5 that the Court of Appeal was wrong in holding that the appellant was given a fair hearing by the Court Martial. Citing Garba v. Universitv of Maiduguri (1986) 1 NSCC Vol. 17 page 245;(1986) 1 NWLR (Pt.18) 550; Mohammed Kano NA (1968) 1 All NLR 424; Kotoye v. C.B.N. (1989) 1 NWLR (Pt 98) 419; Unibiz (Nig) Ltd. v. CBC II. Ltd. (2003) 6 NWLR (Pt. 816) 402; Agoju v. Adiche (2003) 2 NWLR (Pt. 805) 509, counsel submitted that the appellant’s right to fair hearing was breached on the following grounds: (i) that the General Court Martial descended into the arena by virtually taking over the case of the prosecution and thereby interfered with the course of the proceedings; (ii) that the General Court Martial in allowing the prosecution to tender Exhibit 1 from the Bar denied the appellant the right of cross-examination; (iii) that the confirmation of the verdict of the General Court Martial only four days thereafter by the confirming officer foreclosed the appellant’s right to petition against the said verdict within the three months period allowed under section 149(1) of the Decree. He urged the court to allow the appeal.

Learned counsel for the respondent, Mallam Jimoh Adamu, Assistant Chief Legal Officer, Federal Ministry of Justice, Abuja, submitted on Issue No.1 that Brigadier-General P. N. Aziza, as Commander, Lagos Garison Command, was qualified to convene the General Court Martial to try the appellant and therefore competent to do so. He cited section 131 of the Armed Forces Decree, 1993 and the case of NAF v. Obiosa 3 MJSC 78;(2003) 4 NWLR

(Pt.8iO) 233. He argued that the case of Madukolu v. Nkemdilim (supra) cited by learned Senior Advocate for the appellant was not applicable. He said that an investigation was duly conducted in the case, thus satisfying the mandatory provision of sections 123, 124, 128 and 131(1)(d) of the Decree.

Taking Issue No.2, learned counsel submitted that the witnesses for the prosecution were all put on oath before they testified in accordance with the Rules of Procedure, 1972. Citing the case of Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1, learned counsel submitted that courts should not follow technicalities but do justice.

On Issue No.3, learned counsel called in aid the evidence of PW1, PW2 and PW3 and submitted that the prosecution proved penetration. He also cited Oxford Advanced Learners Dictionary for the definition of penetration. He distinguished the case of Okoyomo v. The State (supra) from the facts of this case. He argued that sodomy is not among the offences in which corroboration is required. He relied on the pre-trial statement of the appellant.

Taking Issue No.4, learned counsel submitted that the Court of Appeal was correct in upholding the submission of the respondent on exhibit 1. Assuming, without conceding that exhibit 1 was wrongly admitted, counsel contended that the error by itself cannot ground a reversal of the entire case. He cited Abadom v. State [1997] 1 NWLR 1. Even if exhibit 1 is not acted upon, the appellant did not present any cogent evidence in defence, learned counsel argued.

On Issue No.5, learned counsel submitted that the appellant was given fair hearing. He contended that the questions asked by the court were merely aimed at clearing ambiguities which arose in the course of examination in-chief. He did not see the application of the case of Amachree v. Nigerian Army (2003) 3 NWLR (Pt. 807) 255 cited by counsel for the appellant. He also relied on Rule 56(1) of the Rules of Procedure (Army) 1972. He pointed out that the answers bear no relevance to the case of the prosecution. Counsel argued that the rule of fair hearing is not a technical one which can only be raised where there is genuine and deliberate contravention or denial of the Constitution. He cited Orugbo v. Una (2002) Vol. 12 MJSC 14;(2002) 16 NWLR (Pt. 792) 175. He urged the court to dismiss the appeal.

Let me take the first issue on the alleged failure of the prosecution to investigate the charge against the appellant. Sections 123 and 124 of the Decree are relevant. They provide:

“123 Before an allegation against a person subject to service law under this Decree (in this section referred to as the ‘accused’) that he has committed an offence under a provision of this Decree is further proceeded with, the allegation shall be reported, in the form of a charge, to the commanding officer of the accused and the commanding officer shall investigate the charge in the prescribed manner.

124(1) After investigation, a charge against an officer below the rank of Lieutenant-Colonel or its equivalent or against a warrant or petty officer may, if an authority has power under the provisions of this Part and Part XIII of this Decree to deal with it summarily, be so dealt with by that authority (in this Decree referred to as ‘the appropriate superior authority’) in accordance with those provisions.”

Section 123 provides for an investigation of an offence against a person subject to service law. Section 124(1) provides for dealing with the offence summarily in appropriate cases after investigation. This applies in respect of offences against an officer below the rank of Lieutenant-Colonel or its equivalent or a warrant or petty officer.

In an apparent reaction to the submission of learned Senior Advocate for the appellant, the Court of Appeal said at pages 406 and 407 of the record:

“However, it would appear on a cursory look at the record of proceedings, that the prosecution indeed tendered a detailed report of investigation which the court admitted and marked exhibit 1. The appellant’s case was duly investigated by the General Court Martial.”

I find it difficult to disagree with the Court of Appeal. I have seen Exhibit 1 and I arrive at the same conclusion. In my humble view, the appellant did not show in what way the provisions of sections 123 and 124 were not complied with. Learned counsel relied on the often cited case of Madukolu v. Nkemdilum (supra) on jurisdiction. With respect, the case does not apply. The General Court Martial that convicted the appellant was properly constituted “as regards numbers and qualifications of the members”. No member of the General Court Martial was disqualified. The offence was within the jurisdiction of the General Court Martial. The case came before the General Court Martial by due process of law, and after complying with investigation, a condition precedent to the exercise of the jurisdiction of the General Court Martial. The issue accordingly fails.

The second issue is in respect of taking of oath. The Court of Appeal said at pages 407 and 408 on the issue and I quote the court in extenso:

“The Argument of the Appellant is that his conviction was secured by the lower Court Martial based on the unsworn testimony of the prosecution witnesses. How correct is the Appellant’s Claim I have taken a cursory look at the Record of Proceedings. It indicates that the witnesses were all put on oath before they testified. Rule 92 of the Procedure Rules Military Court Martial Rules, 1972, requires that the Record of proceedings of a Court Martial be recorded in accordance with the appropriate form set out in Schedule 16(6). The Rules provide that the testimony of sworn prosecution witnesses shall be recorded in the following manner:

‘The witnesses for the prosecution are called and…..being duly sworn….”

I agree with the learned Counsel for the Respondent that this format once used as was done in the instant case, it is sufficient proof that the witnesses were duly sworn and it is needless to insist on a verbatim recording of the proceedings whereby, the prosecution witnesses were actually put on oath.

Furthermore, from the record of proceedings on page 15 there are still further indications showing that the prosecution witnesses were put on oath before they testified. In his opening address the prosecution has this to say:

‘We shall, in establishing the case against the accused as required by section 135 and 156 of the Evidence Act, lead evidence which will consist of documentary evidence and testimony of witness, who will give evidence on oath without wasting much of the Courts’ time..’

Again, on page 29 of the Record of proceedings, the following dialogue took place between the prosecution and PW4:

‘Ques: Now Oscar, remember you are on oath, tell us truthfully, did you see Mohammed Abubakar on that day

Ans: I saw Mohammed Abubakar.

In the light of above opening address and dialogue between the prosecution and PW4, it is clear as day light that the witnesses for the prosecution were duly sworn to testify on oath.

I therefore have to resolve this issue against the appellant.”

I am not in a position to improve on the above. The Court of Appeal got the point very well. I have, in obedience to learned Senior Advocate, looked at the Forms he referred to at paragraphs 5-6, page 7 of the brief, and I come to the inescapable conclusion that they do not help the case of the appellant. The General Court Martial, in my view, complied with the provision of section 138 of the Decree. An appellant is bound by the record of appeal. He cannot go outside the record and canvass to an appellate court what he thinks is in favour of his case, which is not in the record. The record clearly shows that the witnesses duly took that oath. The Court of Appeal was very clear on that and I must go along with the court.

That takes me to Issue No. 3 on the proof of the offence of sodomy. Section 81 of the Decree provides in part:

“(1) A person subject to service law under this Decree who (a) has carnal knowledge of a person against the order of nature, or is….guilty of an offence under this section.”

The Armed Forces Decree does not define carnal knowledge. Section 6 of the Criminal Code Act defines carnal knowledge or the term carnal connection. The term implies that the offence, so far as regards that element of it, is complete upon penetration. While carnal knowledge is an old legal euphemism for sexual intercourse with a woman, it acquires a different meaning in section 81. The section 81 meaning comes to light when taken along with the proximate words “against the order of nature”. The order of nature is carnal knowledge with the female sex. Carnal knowledge with the male sex is against the order of nature and here, nature should mean God and not just the generic universe that exists independently of mankind or people. It is possible I am wrong in my superlative extension of the expression. As that will not spoil the merits of the judgment, I live it at that.

Where there is a hole or an opening, there will be the possibility of penetration; penetration being the ability to make a way or way into or through. While the common usage of the word means putting of the male organ into the female sex organ when having sex, it has a more notorious meaning and that is the meaning in section 81.

The natural function of anus is the hole through which solid food waste leaves the bowels and not a penis penetration. That is against the order of nature, and again, that is what section 81 legislates against. I had earlier produced part of the evidence of Emmanuel and Joseph. Emmanuel was a victim of the offence. Let me repeat the exercise but this time limited to a short extract. Emmanuel said at page 24 of the record:

“He turned me upside down and used his penis and put it into my anus then, I shouted that I can’t take it that it is not what Joseph told me …”

Joseph in his evidence in-chief and under cross-examination told the General Court Martial that Mohammed told him that “he has finished the job … He said that the man has already sexed him.”

Appellant in his pre-trial statement said:

“… I had some passes with them short of sexual intercourse … they massaged me… I have to state

that on the day in question the massage they did to me included my private parts and I had romances with them. We were naked.”

It is clear from the pre-trial statement of the appellant that he admitted what was convenient for him to admit. He admitted the naked romance which Emmanuel and Joseph confirmed in their evidence. Does the appellant want this court to believe that the whole matter ended in a romance, particularly in the con of a willing Emmanuel The evidence of appellant agrees with that of Joseph as it affects Joseph in the romance. Unlike Emmanuel, Joseph was unwilling and the appellant released him with a gift of N1,500.00.

I should pause here to say that the evidence of Joseph is clear hearsay thought learned Senior Advocate will make the point. I am surprised that he did not. Mohammed woke up Joseph from sleep and told him that “he has finished the job.” That, in my view, is clear hearsay evidence which is inadmissible.

The hearsay evidence of Joseph notwithstanding, the evidence of Emmanuel clearly proves the offence of sodomy. That apart, the evidence of the appellant creates a circumstance which leads to the conclusion that he committed the offence of sodomy. He said he had some passes with the victims. He said they massaged him. He said the massage included his private part, which I identify as the penis. He said he had romances with them naked. Where did all these amorous activities lead the appellant to Should I believe that they did not lead the appellant to commit the offence of sodomy on a willing Emmanuel, I ask again While they may be incapable of rousing the feelings of an ordinary man in the street, they will certainly rouse the feelings of a homosexual or gay sodomite. The available evidence pin down the appellant as one. There is the adage that an ostrich which buries its head in the sand forgets that the rest of the body is exposed to any willing eye to see and watch.

Apart from the direct evidence of Emmanuel, there is enough circumstantial evidence justifying the conviction and sentence of the appellant. After all, a court or tribunal can convict on strong circumstantial evidence which lead to the commission of the offence. See Chewmoh v. State (1986) 2 NWLR (pt. 22) 331; Adio v. State (1986) 2 NWLR (Pt. 24) 581; Ikomi v. State (1986) 3 NWLR (Pt. 28) 340; Iyaro v. State (1988) 1 NWLR (Pt. 69) 256; Ojegbe v. State (1988) 1 NWLR (Pt 71) 414; Atana v. Attorney-General Bendel State (1988) 2 NWLR (Pt. 75) 201; Shazali v. State (1988) 5 NWLR (Pt. 93) 164; Gabriel v. State (1989) 5 NWLR (Pt. 122) 457.

Learned Senior Advocate submitted that as Mohammed Abubakar and Isaac Jonah did not testify at the trial, the allegations against the appellant in respect of them have been abandoned. I do not see how this submission helps the appellant. If an accused person is charged with committing an offence against two or more persons, he could be convicted and sentenced in respect of committing the offence against one person; and the conviction and subsequent sentence stand. Our adjectival law does not require that the prosecution must prove the commission of the offence against all the victims before the accused could be convicted. Sodomy is not one offence where corroboration is statutorily required. Even if it was to be so, the pre-trial statement of the appellant would have gone a long way, if not all the way.

The next issue is in respect of the admissibility of the pre-trial statement. I think I have touched it by the last foregoing sentence. Let me go into it in more detail.Rule 57 of the Rules of Procedure (Army) 1972, MM; 1972 provides that a written statement which is admissible in accordance with the provisions of the Criminal Justice Act, 1967, as modified by the Court Martial Evidence Regulation 1967, shall be handed to the court by the prosecutor or the accused as the case may be, without being produced by a witness.

Learned Senior Advocate would appear to have forgotten to consider the above rule. If he had done so, he would not have raised the issue.

The impression is given by both counsels that exhibit 1 is a confessional statement. With respect, it is not. A confessional statement unequivocally confesses to the commission of the offence charged. The offence is sodomy. Appellant did not confess in exhibit 1 that he committed the offence. All he said is that he romanced the victims and they romanced him in return. Mere romance without penetration through the anus is not sodomy. Therefore the issue of voluntariness of exhibit 1 raised by learned Senior Advocate for the appellant and the corresponding submission of counsel for the respondent do not arise. Assuming that I am wrong (and I do not think so) there is clear evidence outside exhibit 1 justifying the conviction and sentence of the appellant. And here, the evidence of Emmanuel readily comes out to the fore.

And that takes me to the last issue on fair hearing. Learned Senior Advocate has seriously canvassed in this court that the appeal should be allowed because the General Court Martial took over the prosecution and thereby interfered with the course of the proceedings. He took time to count the number of questions the General Court Martial asked PW2, PW3 and PW4.

It is straight and strict law that tribunals, or courts of law, by their special place in the adjudicatory process, should not condescend to the nitty-gritty of the dispute or flirt with the evidence in a way to compromise. Its independent and unbiased position in the truth searching process. A tribunal or court is expected to hold the balance in an egalitarian way so that the parties and persons present in court will not accuse the body of bias. This is the real essence of our adversary system of the administration of justice as opposed to the inquisitorial system of the French prototype.

The above position of the law is good as long as it is the general principle of law. For a conduct of a trial tribunal or court to affect its decision in respect of interference, an appellate court must be satisfied that there was bias or likelihood of bias. In considering this, an appellate court will have a very close look at the questions asked by the tribunal or court to see whether they affected the live issues in the dispute and the live issues here mean issues which will inevitably give rise to the decision of the tribunal or court one way or the other. Therefore if a tribunal or court asked, say, a thousand questions, which are peripheral, and in the opinion of an appellate court, do not go to the root and foundation of the matter, it cannot allow an appeal on that ground. In such a situation, an appellate court can only take the conduct of the tribunal or court as noisy and lousy, which has no effect in the conviction.

Emmanuel was the star witness, so to say. He gave evidence as PW1. The court did not ask him any question. Learned Senior Advocate did not say that the court asked Emmanuel any question. He said that the court asked PW2 one question, PW3 fifteen questions and PW4 ten questions. The questions counsel complained of in the brief were mainly on the money appellant gave the victims as they related to the offence of sodomy.

I do not think the evidence of PW2, PW3 and PW4 are that material to the conviction of the appellant. I made the point that the evidence of PW2, as it affects the commission of the offence on Mohammed, is hearsay. PW3 lived with the appellant. PW4 lived at Block 05/14, Ojo Cantonment. They did not give evidence of the commission of the offence of sodomy and so questions heaped on them really go to no issue.

I do not think the issue of fair hearing canvassed by learned Senior Advocate will be of any assistance to the appellant. In the case of Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175 cited by counsel for the respondent, I said at page 211 and 212 of the Report:

“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”

I see no reason to depart from the above. The facts of the case in this appeal do not support the invocation of the principle of fair hearing in favour of the appellant because I do not see where the appellant’s right to fair hearing was violated or contravened.

I think I have taken all the issues raised by learned Senior Advocate. What the appellant decided to do was to dare nature in his craze for immoral amorphous satisfaction. By his conduct, the appellant re-ordered God’s creation. Has he got the power to do that No. No human being, whether in the military or not, has the power to re-order God’s creation. After all, we are not talking of fighting a war. By his conduct, the appellant has brought shame to himself. Although a bit of the dent is on the Army, I am not prepared to hold that Force guilty of the conduct of the appellant. The Army did not ask him to commit this heinous and atrocious offence. He is a terrible criminal. And he is alone, clearly alone.

This case clearly brings to the open the problem of poverty in our society; not just poverty but abject poverty. It is in evidence that the victims were hired by money. Parents should try as much as they can to provide for the needs of their children. And when I say this, I am not unaware or oblivious of the fact that some children are not satisfied even if their parents supply all their needs because of their insatiable growing and glowing gluttony for more and more, like Oliver Twist of literary fame.

In sum, I do not see the slightest merit in this appeal. I dismiss it and affirm the conviction and sentence of the General Court Martial.

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SC.204/2004

Group Danone & Anor V. Voltic (Nigeria) Limited (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, J.S.C.

This is an appeal against the ruling of the Court of Appeal, Lagos Division on the 18th of July 2002. The ruling itself was sequel to an application therein dated and filed on the 27th of June 2002. The motion prayed for:

(i) An order suspending varying or staying in terms set forth in the schedule hereto the exparte Orders granted by the Federal High Court (Honourable Justice OIotu J) on 28th of February 2002 in favour of (1) Groupe Danone (2) Society Des Eaux De Volvic.

(ii) An Order of Stay of Proceedings pending the determination of the appeal filed against the ruling of Honourable Justice Olotu J delivered on 3rd June 2002.

(iii) Such further or other Orders as this Honourable Court may deem fit to make in the circumstances.

Schedule

Term of Variation Proposed

“Discharging, suspending or staying that part of the order of the Federal High Court restraining the Defendant from selling or offering for sale Table Water in packages containers bearing the word “La Voltic” pending the hearing of the appeal now pending before this Honourable Court.”

The grounds for the application were stated therein to be:

(a) That an appeal (which raises substantial issues) has been filed against the ruling of the learned trial Judge refusing to discharge the order of ex parte granted against the applicants.

(b) That the Applicant is likely to be completely paralysed and wound-up if the ex-parte injunction is not varied before the hearing of the appeal.

(c) That the failure of the trial judge to entertain the application for stay or vary the injunction effectively grants to the plaintiff reliefs III(c) in the plaintiff’s particulars of claim notwithstanding the fact that that question whether La Voltic is deceptively similar to “Voltic is yet to be determined.

For thorough understanding of the issues involved, it is necessary to state the salient facts up to the filing of the motion. The suit was initiated on the 26/2/2002 when the writ of summons was issued. Filed along the writ of summons was a 28 paragraph Statement of Claim. The reliefs claimed as contained in the writ of summons and paragraph 28 of the Statement of Claim are:-

(i) A Declaration that the use of the words “”La Voltic” by the defendant constitutes an infringement of the Plaintiffs’ registered trade mark “Volvic”” No. 39259 in Class 32.

(ii) A Declaration that the adoption of the words “”La Voltic by the defendant for the sale of their table water amounts to a passing off of same as and for the Plaintiffs natural mineral water sold under the trade mark “Volvic””

(iii) An Order of Perpetual Injunction restraining the Defendant, its servants, agents, Directors or privies and or any of them or otherwise howsoever from doing the following acts or any of them, that is to say:

(a) Infringing the Plaintiffs’ registered trademark “Volvic”” No. 39259 in Class 32.

(b) Passing off, attempting to pass off, causing enabling or assisting others to pass off bottled table water not of the Plaintiffs’ manufacture or merchandise as and for the goods of the Plaintiffs by the use or in connection therewith in the course of trade of the trademark “La Voltic”” or such other similar mark either alone or in combination with other design logo or colourable imitation thereof as to be calculated to lead to the belief that natural mineral water not of the Plaintiffs’ manufacture or merchandise are products of the Plaintiff.

(c) Bottling, manufacturing, selling or offering for sale table water sold in packages, cans bottles or containers bearing the word “”La Voltic” so closely resembling the Plaintiffs’ trademark “Volvic” as to be calculated to lead to the belief that natural mineral water which are not of the plaintiffs’ manufacture and/or merchandise are products of the plaintiffs.

(iv) An Order for delivery up for destruction or obliteration upon oath of all bottled water and packaging not of the Plaintiffs’ manufacture or merchandise bearing the trademark “”La Voltic” and all moulds, raw materials printing blocks and other contraptions and devices in the possession, custody and control of the defendant, its agents, Directors, servants, privies or assigns or any of them the use of which will be in breach of the injunction prayed for herein and verification upon oath that the Defendant has no such articles so marked in its possession custody or control.

(v) Damages of N5,000,000.00 (Five Million Naira) against the defendant for infringement and passing off the Plaintiffs’ trademark Volvic” No. 39529 in Class 32.

(vi) Alternatively, an Account of Profits or an Order that the defendant whether acting by itself its agents, servants, privies or assigns or any of them do make and serve on the plaintiffs’ solicitors an affidavit disclosing when to whom and in what quantity it has sold, sent or supplied, purchased or received any such bottled table water branded as “La Voltic” aforesaid exhibiting true copies of all documents in their possession power or custody or relating to the facts and matters herein disclosed and payment of all sums due on making such an affidavit.

(vii) Costs

(viii) Further or other reliefs.

Also filed on the same 26th February, 2002 were a motion on Notice for an interlocutory Injunction and another ex parte Motion for some interim orders. The ex parte motion is very much in focus in this appeal. It sought the following reliefs:

1. An Order of Interim Injunction restraining the defendant whether acting by themselves their agents privies or otherwise howsoever and pending the determination of the Motion on Notice filed herewith or further from doing or authorising the doing of the following acts or any of them that is to say:

(a) Infringing the 2nd plaintiff’s/applicant’s Registered Trademark No. 39259 in Class 32 adopted by the Plaintiffs in the sale of their natural mineral water.

(b) Passing off or attempting to Pass Off, or causing, enabling or assisting others to Pass Off table water not of the Plaintiffs/Applicants manufacture or merchandise as and for the goods of the plaintiffs/applicants, by the use or in connection therewith in the course of the trademark “La Voltic” or such other similar mark either alone or in connection with other design or logo as to be calculated to lead to the belief that table water not of the Plaintiffs/Applicants manufacture or merchandise are products of the plaintiffs/applicants.

(c) Manufacturing, importing, selling or offering for sale table water sole in packages, can or containers bearing the word “La Voltic” or closely resembling the plaintiff/applicants trademark water which are not of the Plaintiffs/Applicants manufacture and or merchandise are products of the Plaintiffs/ Applicants.

2. An Order directing the Defendants herein whether jointly or severally, by themselves, their directors, servants, employees, agents privies or otherwise however in charge of the Defendant’s premises to permit the bailiffs of this Honourable Court serving this Order accompanied by a Police Officer not below the rank of an Assistant Superintendent of Police including such other policemen not less than six (6) in number and two (2) solicitors from the firm of Messrs Chris Ogunbanjo & Co. (Solicitors to the Plaintiffs/Applicants) to enter upon the premises of the said defendant on any working day from Monday to Friday from the hours of 8.00 a.m. and 6.00 p.m. for the purpose of:

(i) Inspecting, taking samples and inventory of the infringing products including making copies of order forms invoices, bills delivery orders and receipts in the custody, power, possession or control of the Defendants, their directors, officers, servants or agents or any of them which constitutes evidence of the infringement or volume of trade or transactions in the products bearing the offending mark at their premises at (1) No. 58 Onitiri Close, Surulere Lagos and (2) No. 50 Coker Road Shasha, Lagos or at any other premises in the possession power or control of the Defendant.

(ii) Taking into possession of the Federal High Court, Lagos for safe keeping quantities of the infringing products branded “La Voltic” table water found in the Defendant’s premises at (1) No. 58 Onitiri Close Surulere, Lagos and (2) No. 50 Coker Road Shasha Lagos or at any other premises aforesaid and all contraption contrivances chemicals and other devices by means of which the infringement is being perpetrated, pending the outcome of the motion on notice filed herewith or further order.

3. An Order granting liberty to the Defendant to apply that any orders made pursuant hereto or such parts thereof be set aside upon giving at least 48 hours notice thereof to the Applicants solicitors.
4. An Order granting leave to the bailiff of this Honourable Court to the effect along with the service of this order, service of the Writ Summons, Statement of Claim and Motion on Notice and all other processes on the named Defendant.
5. Such further Order or other Orders as this Honourable Court may deem fit to make in the circumstances.

The motion was supported by an affidavit of 33 paragraphs. This motion was heard on the 28th of February, 2002 and all the prayers sought were granted. On the 4th of March, 2002 execution was levied on the Defendant/Respondent at its premises both at (1) No. 50 Coker Road, Shasha Lagos and (2) No. 58 Akanbi Onitiri Close, Surulere Lagos. The inventories of the Respondent’s properties removed or impounded are at pages 152 and 153 of the record. They included over 2,000 cartons of finished products.

In reaction thereto the Respondent filed a motion on the 11th of March, 2002. By its ruling on the 3rd of May, 2002 the motion was refused. The Respondent filed a Notice of Appeal against the ruling. This was on the 6th June, 2002. On that same day, it filed yet another motion. I shall give details of the reliefs sought in these applications and the appeal later in this judgment.

Meanwhile the Appellants commenced contempt proceedings against the Respondent for disobedience of the orders of the 28th February, 2002. On the 20/6/02 the trial court fixed the hearing of the contempt proceedings for hearing on the 23/7/02. This decision prompted the filing of the application which ruling has given rise to this appeal. I shall come back to these later in this judgment.

briefs have been filed and exchanged. The appellants’ brief was prepared by Juliet Mfon Chunu. But the Appellants’ reply brief was prepared by Harrison Asiegbu. The respondent’s brief was prepared by Osaro Eghobamien. In the appellants’ brief the following three issues for determination were identified:

(a) Whether the Court of Appeal was right in entertaining the respondent’s application for a suspension of the Orders of the Federal High Court when an application in identical terms and another application for committal were both pending before the Federal High Court.

(b) Whether the Court of Appeal was competent to set aside- the Ruling of the Federal High Court delivered on the 3rd of May 2002, refusing to discharge the Orders granted against the respondent.

(c) Whether the Court of Appeal gave equal or any consideration to the interest of the appellant as it did to the interest of the respondent before setting aside the Ruling of the Federal High Court dated the 3rd of June, 2002 and if it did not, whether such failure, ought to vitiate the Ruling of the Court of Appeal.

The respondent adopted the three issues as identified by the appellant. On the first issue it was the contention of the Appellant that in view of the respondent’s motion of 6th June, 2002 for variation of the exparte Order of the 28th of February, 2002 which was still pending at the Federal High Court, it was an abuse of the courts process for the respondent to file the motion of the 6th of June, 2002 since there were no exceptional circumstances to do so. Reliance was placed on Caribbean Trading and Fidelity Corporation v.N.N.P.C (1991) 6 NWLR (Part 197) 362; Commissioner of Police v. Fasehun (1997) 6 N.W.L.R. (Part 507 170 at 180; Tate Industry Plc v. Devcom Merchant Bank Ltd. (2000) 15 N.W.L.R. (Part 689) 158; Pavex International Co. Ltd. v. I.B.W.A. (1994) 5 N.W.L.R. (Part 347) 685.

It was the appellants’ further submission that in view of the pending committal proceedings against the Respondent for its breach of the trial court’s orders the discretionary powers of the court could hot avail him. In support of this submission the Appellant relied on Shugaba v. U.BN Plc(1999) 11 N.W.L.R. Page 459, Mobil Oil Nig. Ltd. v. Assan(1995) 8 N.W.L.R. (Part 412) 129.

With respect to the second issue the appellant referred to the relief sought as contained in the Notice of Appeal filed on the 6th of June 2002 and the relief granted by the Court of Appeal on the 18th of July 2002 and contended that by its ruling, the court had granted the substantive relief in the appeal even before the appeal was heard, submitting that a court should refrain from determining, at an interlocutory stage issues in the substantive matter. In support of this submission, the Appellant relied on University Press Ltd. v. I.K. Martins (Nig.) Ltd (2000) 4 N.W.L.R. (Part 654) 584; Tate Industry Plc v. Devcom Merchant Bank Ltd (2000) 15 N.W.L.R. (Part 689) 164, Olaniyi v. Aroyehun (1991 5 NWLR (Part 194) 652; Shell Petroleum Dev. Co. Ltd. v. Omu (1998) 9 NWLR (Part 567) 672 at 682.

The Appellant further contended that there were no exceptional circumstances warranting the grant of the relief sought in the Ruling submitting that the facts referred to by the Court of Appeal as special circumstances were not, in fact, special circumstances. According to the appellant as at the 18th of July 2002 the records of appeal had neither not been settled nor accepted by the Court of Appeal and submitted that the Court was therefore not competent to give the ruling.

The appellants’ arguments on the third issue were premised mainly on the competing rights of the parties and balance of convenience. They referred to sections 2(1) 3 and 5(1) of the Trademarks Act, the fact that they were the proprietors of the registered Trade Mark “Volvic” the fact that the respondent’s Trade Mark “La Voltic” had not been duly registered and submitted that while the appellants have a proprietary interest in the trademark “Volvic” to protect, the respondent has neither legal nor equitable interest to protect. It was the appellant’s argument therefore that the Orders of the Federal High Court which protected their legal rights ought not to have been disturbed by the Court of Appeal. They referred to portions of the Ruling and contended that while the Court of Appeal considered the interests of the Respondent, it failed to consider the corresponding interest of the Appellants. It was further submitted that by the trial court’s ruling on the 3rd of May 2002, the interim injunction of the 28th February, 2002 had metamorphosed into an interlocutory injunction and that had the Court of Appeal given due consideration to this fact it would have exercised its discretion in the Appellant’s favour. Reliance was placed on Attamah v. Anglican Bishop of The Niger (1999) 12 N.W.L.R. (Part 633) 6 at 12 and Effiom v. Ikonbar (2000) 3 NWLR (part 650) 545 at 556.

Finally the appellants urged that the appeal be allowed.

On the first issue the Respondent proffered the following arguments. The respondent referred to the circumstances leading to the application of the 6th June 2002 and argued that the trial court’s refusal to hear it and to take the committal proceedings constituted “special” circumstances to warrant the Lower Court’s decision to entertain it. For this submission the Respondents relied on Shoeinde v. Registered Trustees (1983) 2 SCN LR 284 and Holman v. Kigo (1980) 8-11 SC 43. The Respondent had not yet been adjudged a contemnor and so the principle of a court not to exercise its discretion in favour of a contemnor does not apply in this case, it was contended.

As respect the second issue, it was the contention that although isolated passages in the ruling give the impression that the trial court’s order was set aside, a reading of the entire Ruling shows that it only varied or suspended the trial Court’s Order.

For the third issue of whether the Court of Appeal gave equal or any consideration to the corresponding interest of the Appellants as it did to that of the Respondent, it was the submission that the court did consider the affidavit evidence of both parties before the exercise of its discretion to grant the application and which discretion ought not to be interfered with by this court. It was urged that the appeal be dismissed.

In the Appellants’ Reply Brief, the Appellants relying on the provisions of Order 3 Rule 3(4) of the Court of Appeal Rules and the decision in Commissioner of Police v. Fasehun (1997) 6 N.W.L.R (part 507) 170 at 179 submitted that the Respondent failed to establish the special circumstances warranting the application to be made first at the Court of Appeal, contending that Respondent had no choice in the matter and was under a duty to file and move the application first at the High Court. On the second issue, it was the submission of the Appellants that a court can only grant a relief sought by an applicant and any order made in excess of the prayers in an application must be rejected and set aside. For this submission the Appellants relied on Akinbobola v. Plisson Fisko (Nig.) Ltd(1991) 1 N.W.L.R. (part 167) 270 at 278 and Kalio v. Kalio (1975) 2 SC 15 at 20.

I have considered the arguments of counsel for the parties as submitted in their respective briefs of argument. First it has to be stated clearly that this appeal has nothing to do with the substantive issue of whether the Respondent’s trademark or ‘purported trade mark “LA VOLTIC” is an infringement of the Appellants’ registered trade mark “VOL VIC”. That is the issue for trial and determination at the High Court.

For this appeal, the first issue is whether having regard to the fact that the reliefs in the respondent’s motion of the 6th of June 2002 pending at the Federal High Court and those in the motion at the court below which has given birth to this appeal are identical, it was incompetent for the court below to entertain it. In bringing the application the Respondent relied on sections 16 and 18 of the Court of Appeal Act and Order 3 Rule 3(4) of the Court of Appeal Rules 1981. Order 3 Rule 3(4) provides.

“Where an application may be made either to the High Court or to the Court of Appeal, the Appellant is enjoined by the provision of Order 3 Rule 3(4) of the Court of Appeal Rules 1981 (as amended) to make the application first to the High Court.He can only apply to the Court of Appeal without first applying to the High Court where there are special circumstances which make it impossible or impracticable to apply to the High Court.”

Learned counsel for the Appellant submitted that there were no special circumstances to warrant bringing the application first at the Court of Appeal. The submission of learned counsel for the respondent was that the contempt proceeding itself constituted the circumstances to justify the application at the Court of Appeal. For a proper perception of this issue it is necessary to critically examine the facts and circumstances leading to the filing of the application on the 27/6/2002.

The whole problem of this appeal turns on the propriety or otherwise of the ex parte Order of the 28th of February, 2002. In granting the order the learned trial judge had this to say:-

“I have carefully considered the application by the Court and the submissions made by the learned counsel in furtherance of it and I am of the view that the Plaintiff/ Applicant has satisfied the Court as to the essential ingredients necessary for the grant of the application he is seeking. The Court is satisfied that the plaintiff has prima facie shown that he has a right to protect. He has also shown that this application be heard and granted exparte if the infringing products and related documents are to be preserved. He has also shown prima facie that his product VOLVIC is being infringed by the Defendant’s product. I therefore grant his prayers for interim injunction and Anton Pillar as prayed in his motion paper dated and filed 26th February, 2002.”

The reliefs granted are a copy of the reliefs sought which I have reproduced. All the prayers were granted and they are at pages 74 -77 of the record. For constraints of time and space, I need not reproduce them. They are, no doubt, far reaching and devastating. The Court of Appeal described them as draconian. They contain injunctive orders the total practical effect of which was the closing down of the respondent’s industry albeit “temporarily.” And worse still, the orders include anton piller which authorised the appellants to enter upon the respondent’s two premises and thereon take, seize and impound products and other properties of the respondent. And all these orders were made and execution thereof authorised even before the Respondent became aware of the suit against it. The respondent became aware of this suit only on the 4th of March, 2002 when execution was levied on its two premises.

Under such excruciating circumstances, it was only natural for the respondent to react by filing its motion of the 11th of March, 2002. The motion prayed for:

“”An order setting aside, discharging and vacating forthwith on its entirety the order pronounced by this Honourable Court on the 28th February in favour of Groupe Danone and Societe Des Eaux De Volvic against Voltic Nigeria Limited.”

The motion was supported by a 21 paragraph affidavit. In paragraphs 13, 14, 17, 18, 19 and 20 thereof the respondent deposed to facts some of which were that it was a substantial entity with its products found in most prominent supermarkets and open markets in most states of Nigeria; that it was therefore unlikely to conceal or destroy evidence that would be subsequently required in the litigation to warrant the antom pillar order; that it has substantially heavy investments in the industry with a monthly turn over of about N20,000,000.00 and with over 100 staff in its employment; and that unless the order of the 28th February, 2002 was discharged it would suffer irreparable damages and even go into bankruptcy. Although the appellants filed a 27 paragraph counter affidavit the above facts were not controverted.

Despite these circumstances the trial court refused the application by its ruling on the 3rd of May, 2002. In apparent desperation, the respondent filed both the Notice of Appeal against the ruling and a motion for variation of part of the controversial order of the 28th February, 2002. Then came the decision of the trial court on the 20th June, 2002 to try the respondent for contempt of the self same order of the 28th February, 2002 which validity the Respondent had doggedly challenged in the various applications and the appeal. The contempt proceedings were fixed for the 23/7/02 for hearing. (See page 250 of the record) This was the position the respondent found itself when it filed the application of the 27th June, 2002 the subject matter of this appeal. Order 3 Rule 3(4) of the Court of Appeal Rules provides to the effect that where an appellant is entitled under the Rules to make an application either at the Court of Appeal or at the High Court, he shall make the application first at the High Court; and that it is only in special circumstances where it is impossible or impracticable to make the application at the High Court that it can be made first at the Court of Appeal.

Now are there such special circumstances in this case to justify the application made at the Court of Appeal. I shall answer this question in the affirmative.

Firstly it is settled principle of law that where a Defendant in a cause challenges the validity of an order directed against him either by way of an appeal or other application, he cannot be proceeded against for contempt of that order unless and until the issue of its legality is settled one way or the other. And this is particularly so where, as in this case, the order was procured by the Plaintiff behind his back. The principle is an exception to the general common law rule that a person in contempt in a cause cannot be heard in the cause unless he purges himself of the contempt. In Onwochei Odogwu v. Olemeoku Odogwu (1992) 2 NWLR (Part 225) 539 at 554, this Court, per Karibi-Whyte JSC re-emphasised this principle when he said:

“The common law rule precluding persons in disobedience of orders of court against them from being heard in respect of matters which they stand in disobedience of is of respectable antiquity. The principle has however been whittled down by exceptions. Thus where the order disobeyed was made without jurisdiction; or where the party in disobedience is challenging the validity of the order, the principle does not apply. See Gordon v. Gordon (1904) P.163.”

In this case, the Respondent has demonstrably challenged the validity of the ex parte Order first by its application of the 11th of March, 2002, the Notice of Appeal filed on the 6th of June against the ruling sequel thereto and the motion also of the 6th of June, 2002. In the Notice of Appeal, the relief sought from the Court of Appeal is stated to be:-

“An Order setting aside the ruling of the Honourable Justice Olotu delivered on the 3rd of May and in its place discharging in its entirety the Order of ex parte and anton pillar order granted on the 28th day of February, 2002.”

And in the motion of the 6th of June 2002 the Respondent prayed for an order:

“Discharging or suspending that part of the Order of the Federal High Court restraining the Defendant from selling or offering for sale Table Water sold in packages, cans, containers bearing the word “LA VOLTIC” pending the hearing of the appeal filed herein.”

The above shows clearly the respondent’s continued challenge of the validity of the ex parte Order of the 28th February, 2002. It has not been and indeed, it cannot be suggested that the challenge is merely frivolous. I have no doubt that given the peculiar facts and circumstances of the case the validity issue is not merely frivolous. To the Respondent, the issue is fundamental. And so pending the determination of this crucial issue of the validity or otherwise of the order the respondent cannot be tried for its breach, lest he would be tried and punished for contempt of an order which might turn out to be without any legal basis. On the principle of Odogwu v. Odogwu (supra) I am of the firm view that the respondent’s case falls within the exceptions to the general rule which bars a contemnor in a cause from being heard unless he purges himself of the contempt. The trial court had no choice but to follow this principle.

However, on the 20th June, 2002 there were, pending before the trial court the appellants’ application for contempt proceedings against the Respondent and the respondent’s application for discharge or suspension of part of the Order of the 28th February, 2002. There was argument as to the application to be heard first. In its ruling the trial court said:-

“Following the analysis of the various exceptions to the general rule that a contemnor cannot be heard, it is clear that the defendant cannot be exempted from the general rule by being heard in respect of their application. This is because the application which they want to be heard does not come within any of the exceptions to the general rule as analyzed herein. Therefore in the circumstances the defendants cannot be exempted from the general rule which bars a contemnor from being heard and to their application for an order to suspend or vary the terms of the order of this court cannot be heard now. The application of the plaintiffs would therefore be taken.

By agreement of the parties, case is adjourned to 23/7/2002 for plaintiffs’ application for contempt.”

The Court having thus decided that the respondent cannot be heard and having regard to the fact that the appeal which challenges the order cannot be heard before the 23/7/2002, the respondent stood the imminent danger of being punished for breach of an Order which propriety it had, on good grounds, persistently challenged.

The foregoing aptly demonstrates the precarious situation, the respondent found itself. Implicit in the ruling itself is the fact that the respondent was already adjudged to be guilty of the contempt. It was clear therefore that the respondent would be imprisoned or otherwise inflicted with some form of punishment on the 23/7/2002 unless it earlier folded up its water industry and all these before the determination of the ultimate issue of whether “La Voltic” infringes Volvic.

In these circumstances, the respondent had no alternative but to seek refuge in the Court of Appeal by filling the motion which has given rise to this appeal on the 27th June, 2002. It was as it were, a pre-emptive strike. And in view of the foregoing considerations, I hold that there existed very special circumstances which entitled the respondent to file the application at the Court of Appeal. There was no question of abuse of judicial process as suggested by the appellants. I hold that the application was appropriately presented at the Court of Appeal which was equally competent to entertain same. The result is that the 1st issue is resolved in favour of the respondent.

With respect to the 2nd issue for determination, I agree that the relief granted is not strictly as prayed. The relief sought in the application which ruling has given rise to this appeal had been re-produced above. At the concluding part of its ruling the court below, Per Galadima JCA at page 351 said:-

“In summary, all things considered this application succeeds and it is hereby allowed. Therefore the ruling of the lower court delivered on the 3/6/2002 refusing to discharge the orders granted against the applicant is set aside. In its place and order granting stay of execution of that order is hereby substituted……..further proceedings before the lower court are stayed pending the determination of the appeal in this court.”

There was no prayer for setting aside the ruling of the trial court of 3rd of May, 2002; nor was there any prayer for stay of further proceedings. But it can be seen that the ex parte Order of the 28th February, 2002 is the pivot on which this appeal turns. Because of its excruciating effect the Respondent reacted by filing a number of applications and the appeal. And all the applications i.e. the one of the 11th of March, 2002, 6th of June, 2002 the Notice of Appeal filed on the 6th of June, 2002 and the application which ruling has given rise to this appeal were directed either at vacating the Order in its entirety or otherwise varying, suspending or staying the said order. The ruling of the 3rd of May, 2002 consolidated the ex parte Order complained of and the reaction of the Court of Appeal was therefore to render the order inoperative by staying its execution. And the order for stay of proceedings was apparently to stave off the Respondent’s impending trial for contempt. Although the words setting aside were used the intention of the court is clear from the stay of execution and stay of proceeding ordered. While the stay of execution ordered is consistent with the relief sought; the stay of proceedings ordered, though not specifically sought, was necessary to stave off the Respondent’s trial for contempt.

In conclusion, I hold that the use of the words “set aside” notwithstanding, there is no substance in the complaint in ground one of the Notice of Appeal on which the second issue is predicated. I therefore resolve that issue in favour of the respondent.

As regards the 3rd issue for determination the complaints of the appellants were on the competing rights of the parties and the issue of balance of convenience. It was their submission that the order of the 28th February, 2002 which protected their legal rights ought not to have been disturbed. It has to be noted that the substantive issue for trial and determination is whether the respondent’s mark “La VOLTIC” infringes the appellants’ registered trade mark “VOLVIC”. By the very nature of the case the trial would entail essentially a comparison of the two marks within the provisions of the Trade Marks Act and can be completed in a few days. If the appellants succeed in establishing the alleged infringement they would be entitled to the declarations and injunctions of the type granted and permanently too. But instead of pursuing their alleged infringement in the substantive case, the appellants have been at great pains for the six years to perpetuate a questionable order. And there is nothing from the affidavit evidence to show that if the Respondent had been put on notice and the motion on notice heard a few days after the 28/2/02, the appellants would have suffered greater damages than they suffered in the five months before the filling of the suit.

At page 350 of the record the court below reasoned as follows:

“The orders made by the lower court in the instant case are clear and they point to one direction only, that is stoppage of the entire business of manufacturing of the applicant’s products.”

The applicant has stated in paragraph 25 that they are likely to suffer irreparable damage and loss if their production in the same of “La VOLTIC” is halted albeit temporarily. They have given details.

The appellants filed a 45 paragraph counter affidavit and although in paragraphs 39, 41 and 42 thereof they denied that the respondent was likely to be paralysed by the order, it is nevertheless clear that the effect was the infliction of irreparable damage on the respondent. I do not therefore agree that the appellants’ interest was not considered by the court below in granting the application. This issue is therefore also resolved against the appellants.

In conclusion I hold that this appeal lacks substance. The ends of justice would, no doubt, have been better served in this case if the appellants had pursued the substantive claim by establishing the alleged infringement of their trade mark instead of using precious litigation time trying to defend and perpetuate a patently questionable ex parte Order. The appeal is for the foregoing reasons dismissed for lack of merit.

I assess the costs of this appeal at N10,000.00 in favour of the respondent.

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SC.223/2002

Adamu Suleman & Anor V Commissioner Of Police Plateau State (2008)

LAWGLOBAL HUB Lead Judgment Report

S.A. AKINTAN, JSC

The two appellants were arrested and detained at Garga Police Station in Plateau State for armed robbery sometime in October, 2002. They were later transferred to Jos Police Headquarters and then to Jos C.I.D where they were detained for quite sometime before they were arraigned before the Chief Magistrate Court, Jos on 11th December, 2002. They then caused to be issued a summon to admit them to bail pending trial at the Jos High Court. The application was supported with a 5 paragraph affidavit. Paragraph 3 of the supporting affidavit deposed to by one Serah Ibrahim, Litigation Secretary, in the law firm of the appellants’ counsel, read as follows: “3. That I have been informed by the Applicants in Jos prison on 9/3/2003 at 12.00 noon while briefing A.A Sangei Esq. of Counsel and verily believe their information to be true: (a) That the Applicants were arrested and detained at Garga Police Station for alleged offence of Armed Robbery sometimes in October, 2002. (b) That they were later transferred to Jos Police Headquarters and finally transferred to Jos C.I.D. where they were detained for a long time. (c) That the Applicants did not commit the alleged offence on the F.I.R. A copy of the F.I.R. is hereby annexed and marked as Exhibit “A”. (d) That the Applicants were subsequently arraigned before the Chief Magistrate Court 11, Jos on the 11/12/2002 after staying at C.I.D. Jos for a long time. (e) That the Chief Magistrate Court 11 Jos ordered for the remand of the Applicants at the Jos prison. The proceedings are annexed hereto and marked as exhibit “B”. (f) That the Applicants have been in prison since 11/12/2002. PAGE| 3 (g) That the Respondent is not willing to prosecute the applicants. That the Respondent only want the applicants to be detained in prison custody without prosecution. (h) That the Applicants will not jump bail, they will also appear in court for their case. (i) That the Applicants will not interfere with proper police investigation in case any is remaining. (j) That the Applicants will provide credible and reliable surety/sureties as this Honourable Court may order.” The application was opposed and to that end, a 15 paragraph counter affidavit deposed to by one Joseph Chinda, an Assistant Superintendent of Police (ASP) attached to the Special Anti-Robbery Section, C.I.D Plateau State Police Command, Jos. The facts relied on are contained in paragraphs 1 to 11 of the counter-affidavit which read as follows: “1. That I am the sectional head of the team of Police Officers Investigating the case of criminal conspiracy, Armed Robbery and culpable Homicide Offences that the applicants and other culprits now at large are standing trial for, by virtue of the said position I am very conversant with the facts deposed to herein. 2. That I have read through the summons to admit the applicants to bail pending their trial as well as supporting affidavit and I know as a matter of fact that paragraph 3 (c,g,h,I and j) are not true. 3. That Police investigation into the case is still in progress with the view of arresting the co-cohorts of the applicants that are still at large, and that should the applicants be released on bail, they (applicants) will not only elope justice but that they may tamper with Police investigation. 4. That the applicants have made useful statements to the Police to the effect that they are members of gang of armed-robbers that have committed series of armed robberies within Dengi-Kanam and its environs and Plateau State in particular in the recent past as well as neighbouring Bauchi State. PAGE| 4 5. That working on the above information given to the Police by the applicants, the detectives have since gone into action with the view of arresting the remaining culprits from their hide outs. 6. That based on further clues discovered by the Police against the applicants and others into the case, they (Police) shall substitute the initial First Information Report (F.I.R) with new one to include the other offences that were not included in the old First Information Report (F.I.R) against the applicants. 7. That this will be done as soon as the investigating Police Officers (I.P.Os) who are in possession of the case file diary return from their special assignments in connection with this very case that the application for bail is been sought by the applicants. 6. That the delay in the arraignment of the applicants before the court all these while is not unconnected with the constant strike actions by both the Federal Civil Servants and Plateau State in particular, ministry of Justice Plateau State, Jos inclusive since 2002/2003 and of late, the recent Nigerian Labour Congress (N.L.C) as a result of the fuel prices that were increased by the Federal Government of Nigeria. 7. That the Ministry of Justice Plateau State, Jos who is to file the necessary application before the High Court for leave to prefer a charge against the applicants was not left out of the strike stated in paragraph 8 above and the current Nigerian Bar Association (N.B.A) Plateau State, Jos Branch law week. 8. That now the strike action have been suspended by both Federal and State Civil Servants, I verily believe that the Ministry of Justice Plateau State, Jos, will make the necessary application to the High Court of Justice Plateau State, Jos for leave to prefer a charge against the applicants. PAGE| 5 9. That since the arrest and detention of the applicants there had been a rapid decline of robbery incident in Shuwaka Garga village of Dengi-Kanam Local Government Area of Plateau State and Plateau State in general.” The application thereafter came up for hearing before Damulak, J. sitting at Jos High Court. After taking submissions from learned counsel for the parties, delivered his reserved ruling on 20th October, 2003 The learned Judge, after reviewing all the issues raised in the matter, came to the conclusion that there was no merit in the application. He therefore dismissed it. He said as follows in the concluding paragraph of his said ruling: “In the circumstances, I find that the application does not succeed and is hereby dismissed. It is ordered that investigation into the matter be stepped up and the applicants be charged before the High Court forthwith.” The appellants were dissatisfied with the ruling and their appeal to the Court of Appeal Jos Division was dismissed. This is an appeal from the judgment of the Court of Appeal (hereinafter referred to as Court below). The parties filed their briefs of argument in this court. The following two issues are formulated in the appellants’ brief which were also adopted by the respondent in the respondent’s brief: “1. Whether or not the Court of Appeal exercised its discretion judicially and judiciously when it dismissed the appellants’ appeal 2. Whether or not the Court of Appeal was right when it upheld the decision of the trial court which refused to be bound by the decision of the Court of Appeal in Anaekwe v. C. O. P. (2004) 17 NWLR (Pt. 901)1; and Musa v. C.O.P. (2004) 9 NWLR (Pt. 879) 483.” It is submitted in the appellants’ Issue 1 that the learned Justices of the Court below were in error when they affirmed the decision of the trial High Court which is said not to have been exercised PAGE| 6 judicially and judiciously having regard to the circumstances of the case as depicted by the depositions of the parties. The court below is specifically accused of disregarding the appellants’ right to presumption of innocence as envisaged by Section 36(5) of the 1999 Constitution. It is further submitted that the applicants having deposed to specific facts in paragraph 3 (c) to (k) which facts are not denied, the court below is said to be in error in dismissing the appeal. It is submitted in the appellants’ Issue 2 that the court below was in error when it affirmed the decision of the trial court which refused to be bound by the decisions of the Court of Appeal in some named cases where such applications were granted. Particular reference was made to the case of Oshinayo v. Commissioner of Police (2004) 17 NWLR (Pt. 901) 1 which was a case involving armed robbery where bail was granted to the accused person. It is submitted in reply, in the respondent’s brief that the criteria that should guide the courts in deciding whether to grant or refuse an application for bail are well laid down by this court in numerous decisions of this court, particularly in Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (Pt. 375) 558; at 572; (2007) 12 (Pt. 1) SCM 68 and Bamayi v. The State (2001) FWLR (Pt. 46) 956 at 984, (2001) 5 SCM 20. It is also argued that the bailability of an accused depend largely on the weight the judge attached to one or several of the criteria open to him in any given case. The court below in this case is said to have exercised its discretion judicially and judiciously when it dismissed the appellants’ appeal having regard to the facts tendered in the case. It is further submitted that the presumption of innocence does not make the grant of bail automatic since there is always the discretion to refuse bail if the court is satisfied that there are substantial grounds for believing that the applicant for bail pending trial would abscond or interfere with witnesses or otherwise obstruct the course of justice. The crucial factor is said to be the existence of substantial ground for the belief that he would do so. It is submitted in reply on Issue 2 that since the issue of grant or refusal of bail is a discretionary matter, previous decisions are not of much value. They are therefore said not to be binding but can only offer broad guidelines as each exercise of discretion depends on the facts of each case. PAGE| 7 The question to be resolved in this appeal is whether the Court of Appeal was right in its decision to dismiss the appeal before it and affirming the order of the trial High Court by which the appellants’ application for bail was refused. It is not in doubt that the decision whether to grant or refuse an application for bail involves exercise of judicial discretion in every case. The word “discretion” when applied to public functionaries, a term which includes judicial officers, is defined in Black Law Dictionary, 6th edition, 1990, page 466 as meaning: “A power or right conferred upon them by law of acting in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. It connotes action taken in light or reason as applied to all facts and with view to rights of all parties to action while having regard for what is right and equitable under all circumstances and law.” The criteria to be followed in taking a decision in cases of this nature as laid down by this court include: (i) the nature of the charge; (ii) the strength of the evidence which supports the charge; (iii) the gravity of the punishment in the event of conviction; (iv) the previous criminal record of the accused, if any; (v) the probability that the accused may not surrender himself for trial; (vi) the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him; (vii) the likelihood of further charge being brought against the accused; and (x) the necessity to procure medical or social report pending final disposal of the case. See Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 270; (2001) 5 SCM 20 Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (Pt. 375) 558; (2007) 12 (Pt. 1) SCM 68; Abacha v. The State (2002) 5 NWLR (Pt. 761) 638; (2002) 5 SCM 139; Ani v. The State (2002) 1 NWLR (Pt. 747) 217; (2002) 8 SCM 1 Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (Pt. 708) 9; and Eyu v. The State (1988) 2 NWLR (Pt. 78) 607. It follows, therefore, that a judicial officer saddled with the responsibility of exercising a discretion is required to arrive at the decision in every case or situation based on the facts placed before him in the very case and apply the applicable law. His decision is therefore likely to vary from case to case since the circumstances in each case may vary. The question of stereotype or strict application of the rule of judicial precedent would not be of importance. PAGE| 8 Thus from the facts of this case as set out in the affidavit evidence filed by the parties, the appellants were first arrested and detained for armed-robbery sometime in October, 2002. As at the time of their arrest, there was a wave of armed-robberies in the Jos area and the police told the court of the need to detain the appellants pending their efforts to arrest the remaining members of the gang of robbers terrorizing the area. This was the situation as at the time when the appellants were arraigned before the Chief Magistrate Court, Jos who ordered their detention in prison custody. It will therefore be totally out of place to say that the trial High Court who refused their application for bail failed to properly exercise its judicial discretion judiciously and judicially having regard to the above facts presented to him. Similarly, the court below could not be blamed for upholding the decision of the trial Court by dismissing the appellants’ appeal. This is because there were no justifiable reasons placed before it to warrant querying or tampering with the trial Judge’s exercise of his judicial discretion by refusing the application before him in the case. The learned trial Judge went further when he ordered in the concluding paragraph of his ruling that: “investigation into the matter be stepped up and the applicants be charged before High Court forthwith.” The ruling of the High Court was delivered on 30th October, 2003 while the judgment of the Court of Appeal was delivered on 8th December, 2004. On 13th December, 2007 when this appeal came up for hearing in this court, the order of the learned trial Judge made on 30th October, 2003 that the police should step up their investigation into the case and charge the appellants before the High Court forthwith had not been complied with. This is because we were told that the appellants were still being remanded in prison custody on the order of the Jos Chief Magistrate. The flagrant breach of that order on the part of the police has given credence to the averment in paragraph 3 (g) of the affidavit in support of the appellants’ application where it is averred: PAGE| 9 “That the respondent is not willing to prosecute the applicants. That the respondent only wants the applicants to be detained in prison custody without prosecution.” The disclosure that the appellants are yet to be arraigned before the High Court since their arrest in October, 2002 is totally unacceptable and cannot be justified under the guise that the police are yet to complete their investigations. In the result, there is absolute justification in not allowing the continued detention in prison custody of the appellants as ordered by the Jos Magistrate Court. The appeal is therefore allowed. It is hereby ordered that the appellants be allowed on bail each in the sum of N200,000 with two sureties each in the same amount. The sureties are to be resident in Jos area and supply proof of ownership of residence property in the Jos area.

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SC. 19/2005

Eme Orji Vs The State (2008)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, JSC

The appellant together with one Peter Enwereji were charged on three counts in the High Court of Abia State, holden at Aba as follows:-

“COUNT 1 Statement of Offence

MURDER – Contrary to Section 319 of the Criminal Code Vol. II Cap. 30 Laws of Eastern Nigeria 1963 applicable in Abia State.

PARTICULARS OF OFFENCE

PETER ENWEREJI and EME ORJI on the 9th day of July, 1994 at No. 1 Ukwa Road, Aba, in Aba Judicial Division murdered CHIMA OBI JOEL.

COUNT 2: STATEMENT OF OFFENCE

MURDER – Contrary to Section 319 of the Criminal Code, Vol. II, Cap 30 Laws of Eastern Nigeria, 1963 applicable in Abia State. PETER ENWEREJI and EME ORJI on 9th day of July, 1994 at No. 1 Ukwa Road, Aba, in Aba Judicial Division murdered Monday Okon.

COUNT 3: STATEMENT OF OFFENCE

MURDER – Contrary to Section 319 of the Criminal Code, Vol. II, Cap. 30 Laws of Eastern Nigeria 1963, applicable in Abia State.

PARTICULARS OF OFFENCE

PETER ENWEREJI and EME ORJI on the 9th day of July, 1994 at No. 1 Ukwa Road, Aba, in Aba Judicial Division murdered Ogba Aju.”

Both accused persons pleaded not guilty to the charges, and witnesses gave evidence. The learned trial judge after evaluating the evidence, and carefully considering the address of learned counsel, found both accused persons guilty of the offences they were charged and convicted them thus:-

“Finding/Verdict – On a calm view of the evidence before the court and the submissions of learned counsel for the parties, I find as a fact and hold that the prosecution have proved their case beyond reasonable doubt. I find each of the accused persons guilty of the murder of Chimaobi and in the process the killing of Monday Okon and Ogbati Aju – on 9th JULY, 1994 AS CHARGED. Each of them is accordingly convicted of murder.”

The convicted persons appealed to the Court Appeal, which in the case of the present appellant found as follows:-

“I agree and affirm the conclusion of the learned trial court that the circumstantial evidence concerning the 2nd accused convict lead to the irresistible conclusion that is compelling of the guilt of Erne Orji and the court below was right to convict him; and to sentence as the judgment of 6/5/2002 show. The appeal is refused. It is dismissed.”

Now, the 2nd accused has appealed to this court on 3 grounds of appeal. Briefs of argument were exchanged by learned counsel who adopted their briefs at the hearing of the appeal. Both learned counsel raised issues for determination in their briefs of argument. In the appellant’s brief of argument are the following issues formulated for determination:-

“(1) Having regard to the facts of this case whether the fact that the appellant did not immediately lie down when ordered to do so was enough circumstantial evidence against the appellant cogent and compelling enough to lead to the irresistible conclusion that he was a party to the offence.

(2) Whether having regards to the facts of this case the fact that the appellant led the assassins to the PW 1 and the fact he failed to follow the prescribed procedure of communicating with his employer after 8p. (sic) points to the guilt of the appellant in facilitating the unlawful act of aiding in the committal of the murders of the three deceased persons.

(3) Whether the fact that the appellant went into hiding and/or failed to raise alarm connotes the aiding or facilitating escape of the strange men thereby making him a party to the crime.”

In the respondent’s brief of argument are the following issues formulated for determination:

“(1) Whether the circumstantial evidence led in this case points irresistibly to the guilt of the appellant.

(2) Whether the defence of compulsion avails the appellant in this case

.

(3) Whether the prosecution proved the case against the appellant beyond reasonable doubt.

(4) Whether the Court of Appeal was right in affirming the conviction of and sentence of the appellant by the learned trial judge.”

I have already stated earlier on that the appellant appealed on three grounds, and there is nothing in the documents before me to show that the grounds were increased vide the order of this court, to warrant the raising of issues that surpass the grounds of appeal. Issues for determination are supposed to be distilled from the grounds of appeal filed by an appellant, and not raised capriciously. They must not out-number the grounds of appeal, for where they so out-number them there is the danger that some of the issues do not derive their source from the grounds of appeal, and therefore are not related to one another. It is trite that an issue that does not so relate will not be tolerated. See Chime v. Chime (2001) 3 NWLR (Pt. 701) page 527, (2001) 2 SCM, 16; Western Steel Works v. Iron and Steel Workers (1987) 1 NWLR (Pt. 49) page 284, and Salami v. Mohammed (2000) 9 NWLR (Pt. 673) page 469. Proliferation of issues as in the instant case must be discouraged. See Oyekan v. Akinrinwa (1996) 1 NWLR (Pt. 459) page 128. The issues in the respondent’s brief of argument being in excess of the grounds of appeal, I will adopt the issues in the appellant’s brief of argument for the treatment of this appeal, and will treat them together.

In proffering argument learned counsel for the appellant has contended that circumstantial evidence relied upon by the learned justices against the appellant was not cogent and compelling and does not lead to the irresistible conclusion that the accused committed the offence. He argued that before circumstantial evidence can form the basis of conviction the circumstances must clearly and forcibly suggest that the accused committed the offence. Reliance was placed on the cases of Lateef Adeniji v. The State 2001 13 NWLR part 730 page 375, (2001) 7 SCM, 1 and Adepetu v. State 1998 9 NWLR part 565 page 185. In reply the learned counsel for the respondent has argued that the guilt of an accused person can be proved by circumstantial evidence, and in this case the prosecution was at liberty to fall back to the best evidence available in the circumstance, (which was circumstantial evidence in this case). He referred to the cases of Chima Ejiofor v. The State (2001) 86 LRCN 1318, Paulinus Udedibia & Ors v. The State (1976) 11 SC 133. Learned counsel submitted that the circumstantial evidence against the appellant is cogent, compelling and points irresistibly to his guilt. He referred to the cases of Fatoyinbo v. A.G. Western Nigeria (1966) WNLR 4, Lori v. The State (1980) 8 – 11 SC 81, Adetutu v. The State (1998) 61 LRCN 45 19, MCGREEVY v. D. P. P. (1973) 1 All E. R. 503, Igabele v. The State (2006) 3 SCM, 143; (2006) 139 LRCN, 1831 and Francis Dorwede v. The State (2000) 82 LRCN 3038.

The pertinent question, at this juncture is, what are the circumstantial evidence in this case? It is on record that in his evidence in chief, PW1 said the following inter alia:-

“The second accused person opened the curtain or blind to my parlour or sitting room, he pointed at me to these strangers saying “See Chief. I then saw them the strangers bring out a rifle gun and brandishing the same the person holding the rifle gun ordered saying “Lie down all of you”. The second accused on that material time was still standing, where he had stood after opening the curtain of the parlour. I saw him clearly and he saw me and others.”

In the course of cross-examination P.W. 1 testified thus:-

“It is by 8. o’clock p.m. that the gate is officially closed. But this does not prevent any visitor who want to see me from coming in, provided the security men on duty allow such a visitor to come in after filling the visitors’ form that is always passed on to me for my indication as to whether to allow such a visitor or visitors in. As there is also an inter-com, the security men or man on duty, also call me after the official closing of the gate to inform me of any visitors around.

But on that day the 2nd accused person did not call me. Rather he brought the strangers into my parlour……………………………

Q:- Did you provide the security men or any of them with gun?

Ans:- We have no gun.

Q:- The two strangers who came to your parlour were armed with gun?

Ans:- That is correct.

Q:- And they were following the 2nd accused person behind while they were coming?

PAGE| 6

Ans:- That is correct.

Q:- I suggest to you that the 2nd accused person was under arrest by those strange men when he brought them into your sitting room.

Ans:- I did not see them until they came into the parlour led by the 2nd accused person as I was sitting in my parlour.

Q:- The 2nd accused person, was under compulsion or duress to bring the strangers into my (sic) parlour.

Ans:- I don’t know. They did not tell me so I don’t know.”

Perharps the above scenario may have been better explained by the 2nd accused/appellant himself when in his evidence he said:-

“When I was asking them to come and sign our visitors’ book, one of them wearing a coat and putting on a tire (sic) also pulled out his own pistol and pointed it at me and told me to move. It was that fair one who had police gun the barater who gave me a slap and told me that if I talked again, that he would shoot me. So, I moved on and when we got to the PW1’s house, there is a place where visitors usually wait. I told them to wait there. I followed the backyard, and the (sic) followed me. I went through the backyard to enable me pass on a word or give a message through that person to PW 1 to alert him as to what was going on. But at the said backyard, I did F8not see anybody. The door was open at the residence of PW1. It was at that time that the one wearing a coat and tire (sic), told me that he is an ibo man and that he knows Eleke and Freeman and that if I took them to somewhere else other than PW1’s house or residence, that they will shoot me dead. Eleke and Freeman are the sons of PW1. As I did not see anybody to give the message, we passed or moved to one of the rooms and there was nobody there. We then moved into another room and there was nobody there. We then entered into the dining room and there was nobody there. Then finally we entered into the parlour of PW1’s sitting room…………………………………..”

(Underlining is mine)

Under cross examination the 2nd accused/appellant virtually reiterated this evidence in chief, and expatiated on some points especially on the suspicion of taking the strangers through the backdoor and his motive for doing so. In his testimony he said inter alia thus:-

“When they pointed their guns at me and I went with them to the house of PW1, we got to his waiting room where I asked them to stay so that I could pass through the back or backyard in order to inform those at the backyard that there are some people looking for our master, so, while I was going the armed robbers followed me.

Put:- You purposely went through back door so as not to give the occupants no chance to escape.

Ans:- Not true.

Q:- When the visitors ordered everybody to lie down, you did not follow the others to lie down because you felt that you were not included?

Ans:- Not true. I was gripped with fear.

Put:- You know the visitors quite well. That was why being a part of the deal, you felt you were not included and that was why you did not also lie down.

Ans:- Before God and man, I did not know the visitors.”

It is instructive to note that the above pieces of evidence were given on 3/2/99, and 18/3/2000, over five years after the 2nd accused/appellant made his cautionary statement to the police, as follows:-

PAGE| 8

“I told them to come and feel (sic) the visitors book. At this juncture two of them drew their guns one was holding a pistol while the other had a barneter (sic) gun and fenced (sic) it on me. They ordered me to take them to my Director or they kill me. When we were going, as I have decided to take them. They warned me not to take them to any other persons house other than the Director’s house. They informed me that they know Eleke and Freeman the sons of the Director. When I got to the house of the Director Chief Ogba Chukwu in their company, I decided to take them through the back door. I did so because I was looking if I can find any person to pass information to the backyard I did not see any of the maids. I took them into the house through the backyard door. When we got into the first room we did not see anybody. We then entered into the dining room and lastly into the parlour where the Director and others were viewing the television and watching the World match going on. At this stage I called the Director and told him that the men with me wanted him”.

Perhaps I should point out here that my reason for reproducing these latter pieces of evidence is to show that the appellant was consistent in the story of his travails right from the period of the incident to when he testified in court some five years later. His narration of what happened right from when the robbers came in, to the fear of imminent threat to his life which they subjected him to, and the reason why he took them through the back door was consistent. The evidence of PW1 also corroborates the 2nd accused/appellant’s evidence on the mode of the appellant’s entry to PW 1’s residence through the back door. PW1’s evidence on the motive of the appellant in taking that entrance was punctured by the explanation of the appellant who told the court of his motive for doing so. Though circumstantial evidence may sometimes be conclusive, all other factors and surrounding circumstances must be considered carefully for they may be enough to adversely affect the inference of guilt. See Lori v. State. Udedibia v. State, and Adepetu v. State supra cited by learned counsel for the appellant. According to Iguh J.S.C. in the case of Iko v. State 2001 14 NWLR part 732 page 221, (2001) 11 SCM, 112 “……suspicion, no matter how high, cannot ground criminal responsibility”. The sight of the guns, the threat to his life were enough to unsettle the appellant and make him confused. That he did not lie flat when the others lay down as instructed by the intruders is not a score in favour of the prosecution, as it did not irresistibly point to the guilt of the appellant. The position of the law on circumstantial evidence is that before it can ground a conviction the evidence must be strong, cogent and point irresistibly to the guilt of an accused person. See Anekwe v. State supra and Aigbadion v. State 2000 7 NWLR part 666 page 686.

In the instant case, the appellant gave a lucid account of what happened from the moment the intruders entered the house, and that account in no uncertain terms was corroborated by the evidence of PW1 i.e. his motive of taking them through the backdoor etc. The reason why he ran away from the house and hid himself until they had left the premises. The appellant was also consistent in his evidence that he did not know the intruders. The pertinent question here is, what would a reasonable and normal man do in the circumstance? Instinctively the natural thing that comes to mind is the act of self preservation, most especially on the face of the confusion that preceded the callous act. The case of Abbott v. R 1976 3 AELR page 140 referred to by learned Attorney General in the course of the hearing of the appeal in this court may be relevant to a certain extent, but in the instant case, and looking at the surrounding circumstances and factors it cannot apply. With due respect, the lower courts did not give all the prevailing factors and circumstances careful consideration before arriving at their conclusions of conviction. The law is that before an accused person can be convicted of a criminal offence most especially one of such gravity as the instant case i.e. murder the prosecution must prove its case beyond reasonable doubt. See Section 138 of the Evidence Act Cap. 112, 1990 Laws of the Federation of Nigeria. Although beyond reasonable doubt has been said to be not beyond a shadow of doubt, (See Miller v. Minister of Pensions 1947 2 All ER 377, as was discussed in Akalezi v. The State 1993 10 LRCN 264); the present case to my mind is riddled with doubt. It is my view that the lower court was wrong when it found thus in its judgment.

“In the instant appeal it is inconceivable that a security guard will meet people he had never seen before and lead the men holding a gun to his employer. In doing so the employee failed to follow the prescribed procedure of communicating with his employer after 8 p.m. The conclusion of a reasonable man which is vindicated by the compelling circumstantial evidence is that Erne Orji knew the strangers, (2) that he knew why they looked for PW1 or knew their purpose. The conclusion leads to no other conclusion and point irresistibly to the guilt of the 2nd accused person in facilitating the unlawful act of aiding the committal of the murder of the three deceased persons or in any case the flight of the murderers after their acts of killing.

The 2nd arm of the circumstantial conclusion of guilt against Eme Orji is act of facilitating the flight of the assasins. By his testimony the accused Eme Orji went to announce the departure of the assasins. The accused person not only heard the gun shot by the strangers, he saw it when the assassins shot Chumaobi Joel in the head. The accused convict did not raise an alarm to prevent the safe departure of the assassins, his testimony show that he went into hiding till the assassins departed. By this act Eme Orji who led the assassins or murderers cannot claim ignorance of the heinous offence. The person who facilitated the commission of murder, is guilty as is the person who facilitated the flight of such a person who committed murder is according to the law equally guilty. The assassins are at large; the appellant led the assassins to the scene of murder. I have no reason therefore to disturb the conclusion of the learned trial judge, except to say that there is no direct or circumstantial evidence of the conspiracy before the court below. I agree and affirm the conclusion of the learned trial court that the circumstantial evidence concerning the 2nd accused convict lead to the irresistible conclusion that is compelling of the guilt of Eme Orji and the court below was right to convict him, and to sentence as the judgment of 6/5/2002 show.” Underlining above is mine.

As at the time the appellant was arrested and cautioned, and at the time he was arraigned and eventually tried, he must have perceived the danger he was in and the gravity and seriousness of the charge against him, and yet he did not at any of those stages divulge the names of the assassins. If truly he was in concert with them as it was alleged the very instinct of self preservation and protection would have forced him to rope them in, and not face the consequences alone, when infact he did not do the actual shooting. I mean I find this situation inconceivable. Clearly, prosecution has not proved its case beyond reasonable doubt, and it should have failed. See Woolmington v. DPP (1935) A. C. 462. Where a court entertains doubt on the guilt of an accused the law demands that such doubt should be resolved in favour of the accused. See

PAGE| 11

Kalu v. State (1988) 4 NWLR (Pt. 90) page 503, Ikemson v. State (1989) 3 NWLR (Pt. 110) page 455, and Nnolin v. State (1993) 3 NWLR (Pt. 283) page 569.

In the light of the above discussions I resolve these three issues in favour of the appellant, and all the grounds of appeal to which they are married succeed. I am satisfied that the case against the appellant was not proved beyond reasonable doubt, and the court below erred in affirming the judgment of the learned trial court. I hereby allow the appeal and set aside the judgments of the lower courts. The appeal succeeds in its entirety, and the conviction of the appellant is quashed. The appellant is discharged and acquitted

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SC 150/2005

S. O. Adole Vs Boniface B. Gwar (2008)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

This is an appeal against the judgment of the Court of Appeal Jos, (per Obadina, Mangaji and Nzeako, (JCA) delivered on 14th May 2002 in Appeal No.CA/J/297/99 wherein they entered judgment for the respondent as appellant, allowed the appeal and the judgment of Ogbole, J. of the High Court of Benue State in Suit No.MHC/219/94 dated 28/6/99 set aside. Specifically, the declaration that the respondent (now appellant) was the title holder of the land in dispute and the injunction granted restraining the appellant/respondent as well as the general damages awarded are each set aside dismissed the counterclaim and cost of N5,000 awarded in favour of the appellant/respondent.

The appellant’s statement of claim (then as plaintiff at the trial court) is on pages 4-6 of the record. The respondent’s (then defendant) further amended statement of defence is on pages 77 to 83 of the record. The appellant’s reply to the statement of defence is on pages 56 to 59 of the record. The evidence of the appellant and that of his witnesses is on pages 115 to 130 of the record.

The respondent, as appellant’s brief of argument is on pages 191 to 207 of the record. The appellant, as respondent’s brief of Argument, is on pages 208 to 256 of the record. The judgment of the Court of Appeal leading to this appeal is on pages 260 to 292. Being dissatisfied with the judgment of the Court of Appeal, the appellant on 16/7/2002 filed a Notice and grounds of Appeal containing (4) grounds.

At the trial Court, the Court admitted fifteen exhibits prominent among which exhibit 2, is Certificate of Occupancy NO.BNA 5131 in respect of a piece of land in the Makurdi Urban Area which is the subject of this appeal.

The appellant distilled four issues from his grounds of appeal which the Respondent adopted for the determination in this appeal, to wit:

a) Were the learned Justices right in the circumstance of this case in holding that there was no evidence led to show that the land in dispute is within Greater Makurdi Urban Area. Or put in another way, did the plaintiff (appellant) on the evidence produced by him successfully establish that the land in dispute is situated within the Makurdi Urban Area, (Based on ground 1 of the grounds of appeal),

b) Whether the power conferred on the Governor under section 5(2) of the Land Use Act, 1978 presupposes prior strict compliance with Section 28 of the Act where there exist Title holders to the land affected (Based on ground 2 of the Grounds of Appeal).

c) Whether or not the Statutory right of occupancy issued to the appellant was validly granted and court therefore extinguish the Respondent’s title as a deemed title holder considering section 5 sub-section 2 and 34 sub-sections 5 and 6 of the Land Use Act, 1978 (Based on ground 3 of the grounds of appeal).

d) Whether or not the respondent, now appellant proved his title to the piece of land in dispute by the production of a document of title (Certificate of Occupancy No. BNA 5131) referred to as Exhibit 2 from the record and or, whether the costs of N5,000 awarded was not excessive.

(Based on ground 4 of the grounds of appeal).

The facts of the case briefly put are as follows:-

The appellant, as plaintiff in the High Court of Benue State before Ogbole, J. claimed that the Respondent as defendant trespassed into his piece of land. In consequence, he sought a declaration (declaratory) judgment that respondent as defendant trespassed into his piece of land along David Mark Bye Pass, Makurdi. He in addition claimed aggravated damages and perpetual injunction restraining the Respondent, his servants or agents from entering upon the said property or doing any other acts thereon incompatible and inconsistent with the Respondent’s title and ownership of the said property. The defendant for his part, filed a counterclaim in his amended statement of defence with one relief that he is a deemed holder of a Certificate of Occupancy in respect of the land in dispute.

Pleadings were exchanged and witnesses were called by the two parties at the hearing in the High Court

In his judgment, the learned trial Judge dismissed the Respondent’s counterclaim and awarded title to the Appellant with N15,000 damages and perpetual injunction restraining the Respondent, his servants or agents from entering upon the said property. Dissatisfied with the decision of the trial court, the Respondent appealed to the Court of Appeal, Jos, which found as a fact that as far as the issuance of the Certificate of Occupancy NO.BNA 5131 was concerned, it was not made in error but that it was genuinely, made. Yet it went on to hold that there was no evidence before the trial court proving the location of the land in issue in order to arrive at a decision that falls within the area designated as urban under the 1984 Order and therefore failed to prove his case. In the main, the judgment of Ogbole J, in suit No. MHC/219/94, dated 28/6/99 was set aside on 14/5/2002 and an injunction restraining the Respondent/Appellant from entering the piece of land with N5, 000 costs against the Respondent/Appellant adding that the Certificate of Occupancy NO.BNA 5131 issued to the Appellant was invalid.

The appellant being dissatisfied with the judgment of the Court of Appeal has now appealed to this Court upon four (4) grounds as in the Notice of Appeal dated 15/7/2002 and filed on 16/7/2002 as hereinbefore stated.

I will now proceed to consider below the issues serially as the (appellant) has done.

ISSUE 1:

The Benue State Land Use (Designation of Capital as Greater Makurdi) Order, 1984 declared Makurdi an urban area and all areas specified in the Schedule to the Order within 16 kilometres radius. Section 5(1) (a) of the Land Use Act empowers the governor of a State to grant statutory right of occupancy (Certificate of Occupancy) to any person whether or not in an urban area. The possession of title document over the disputed plot by the Appellant was not conclusive that the plot in issue was within the 16 kilometre radius constituting greater Makurdi nor within the Makurdi urban area as not all lands within the area called Makurdi are urban lands. There was therefore, the need for the Appellant to prove that the Plot in issue was within the Makurdi Urban Area.

By all necessary implications therefore, they, who wanted the court to hold that the disputed plot of land was within the Makurdi Urban Area, were required by law to plead the fact and prove the same at the hearing of their case. (See Order 25 Rule 4 of the Benue State High Court (Civil Procedure Rules), (Edict, 1988). See also Section 135(1) of the Evidence Act). Nowhere in his statement of claim (see pages 4, 5 and 6 of the record) did he plead the fact to enable him give evidence on it at the trial. Rather, the appellant pleaded and tendered Certificate of Occupancy NO.BNA 5131 (exhibit 2) to prove only the fact that he is the rightful owner of the disputed plot, but not its situ. (See paragraphs 3 and 4 of the plaintiff/appellant’s Statement of Claim on page 117 lines 13 and 14 of the record to the effect that “I told him that that area is within urban area traditional title notwithstanding” did not only go to nothing, it was equally clearly bereft of the facts and details which would have led the trial court to believe and thereby concluded that the disputed plot was within Makurdi Urban Area.

From the foregoing, I hold the view that there was no evidence before the court below proving the location of the land in issue which would have enabled the court to arrive at the decision that falls within the area designated as urban under the 1984 Order. The learned Justices of the Court of Appeal were therefore right when having taken judicial notice of Gazette No.21 Vol.10 of 23rd May, 1985 which was published in the 1984 Order (See page 184 line 23 of the record), proceeded to hold that they did not find as such. This court was accordingly urged to affirm the Court of Appeal’s decision, and not to disturb it even if this court finds that that court (court below) is in error in holding that there was no evidence before the trial court proving the location of the land in issue in order to arrive at a decision as the court did namely, that the land falls within the area designated as urban under the 1984 Order. This Court was urged to so hold because the judgment of the Court below was neither founded on this finding and conclusion nor on the fact that the Governor of Benue State did not first revoke the Respondent’s deemed statutory right of occupancy over the plot in issue before issuing exhibit 2 (Certificate of Occupancy No. BNA 5131) over the same plot, to the appellant.

Thus, it was further argued, that even if the Justices of the court below had found proved that the disputed plot was situated in an urban area, this finding would have had no effect whatsoever on the court’s subsequent findings on issue No.1 and the decision reached.

This court has held in several cases that it is not every error of the Lower Court that will result in an appeal being allowed but only such errors that occasion grave miscarriage of justice. See Oseni v. Dowodu (1994) 4 SCNJ (PT.2) 197 at 209; Anla v. Ayanbola (1977) 4 SC 63 and Alli v. Alesinloye (2000) 4 SCNJ 264 at 297. I am of the view that the error of the Court below (if any) not being one that has occasioned a miscarriage of justice should not constitute the round for setting aside the judgment of the court below. I accordingly decline to set aside the decision of the court.

ISSUE 2:

This issue raises the question whether in the exercise of his power under Section 5(2) of the Land Use Act, the Governor must first comply with section 28 of the Act where there exist two title holders to the same land. The two types of rights of Occupancy recognisable in law are (1) Statutory Right of Occupancy granted by the Governor under Section 5(1) (a) of the Act.

(2) The Statutory Right of Occupancy deemed to be granted by the Governor pursuant to Section 34(2) of the Act. It is trite that a deemed grant comes into existence automatically by the operation of law and the grantee acquires a vested right just as an actual grantee of a right of occupancy. See – 1. Savannah Bank (Nig) Ltd v. Ajilo(2001) FWLR (PT.75) 513; 2. Sunmonu Olohunde & Anor v. Prof S. K Adeyoju (2000) 6 SCNJ 470 at 505 per Uwaifo, J.S.C.

It is not in doubt that under Section 5(1) of the Land Use Act, it shall be lawful for the Governor to grant statutory right of occupancy to any person in respect of land, whether or not in an urban area. Under Section 5(2) of the Act, when such grant is made, all existing rights to the use and occupation of the land so granted shall be extinguished.

Be it noted that the rights that are automatically extinguished following the exercise of the powers of the Governor under Section 5(2) of the Act are “existing rights to the use and occupation of the land” such as the rights of licences, mortgages etc. but not vested rights such as statutory right of occupancy actually or deemed granted which are recognised by the Act itself. See Olohunde v. Adeyoju (supra). Where therefore there exist a prior grant, section 5(2) of the Act cannot be applied to defeat it, as the Section cannot in that case be swallowed wholesale. See Nigeria Engineering Works Ltd v. Denap Ltd & Anor (2001) 12 SCNJ 251 at 275 PER Kalgo, J.S.C.

The Section (i.e. Section 5(2) of the Act) will only be able to defeat the existing vested right if such right is revoked under Section 28 of the Act for any of the reasons stated there under. Otherwise, there will be in existence at the same time two valid rights of occupancy granted to different persons in respect of the same parcel of land, as was the case in the matter at hand. In such a case, it was contended, the latter right of occupancy is liable to be invalidated as the court below rightly did in this case.

In the case in hand, the appellant himself admitted before the Court below that the respondent’s (the defendant at the trial court) father settled on the disputed land. At page 255 paragraph 1 of the record he stated thus:

“I am not in doubt that the defendant’s (respondent in this appeal) father first settled on the alleged land in 1950, which at that time was a virgin land. After his death, the defendant took over the control and management of this vast land. There is no evidence to the contrary ……..”

In the face of the admission and the evidence on the record indicating that the Respondent had developed the land before the coming into effect of the Land Use Act (see pages 146-147 of the record), by the operation of Section 34 of the Act the Respondent became or was deemed to hold a statutory right of occupancy over the plot of land The court below therefore properly held.

A deemed statutory right of occupancy, being a vested right recognised by the Act itself, cannot be extinguished under section 5(2) of the Land Use Act by the issue of a statutory right of occupancy over the same plot. The right can only be revoked under Section 28 of the Act. The only option open to the Governor of Benue State was to have first revoked the deemed right of occupancy of the Respondent before granting Exhibit 2 to the Appellant over the same plot of land. See Olohunde v. Adeyoju (supra). 2. Nigeria Engineering Works v. Denap (supra).

Having failed to do so, the court below also properly invalidated Certificate of Occupancy No.BNA 5131 issued without first revoking the pre-existing right of occupancy of the Respondent. I so hold.

In the face of the above, it is clear that the interpretation of the learned Justices of the Court below that Section 5(2) of the Land Use Act presupposes strict prior compliance with Section 28 of the Act where there exists an earlier grant is the correct interpretation. What their Lordships did at the court below was only to re-echo or apply the case cited above. It is certainly not the intention of the law makers, in my view, that the Land Use Act be used to divest citizens of their traditional titles to land. Rather, the Act is meant to strengthen ownership that derives existence through traditional history, which is what the court below sought to enforce through its judgment. I therefore endorse the submission that this court should not disturb the judgment of the court below, not even for the reason that the respondent has excess land in Makurdi or that the court below did not make a finding on the issue. As no appeal has been lodged on this issue, no issue has therefore been consequently formulated for the determination of this Court. Afortiori, I affirm the judgment of the court below on this point.

ISSUE 3:

Issue NO.3 raises two questions for determination, to wit:

(a) Whether or not the right of occupancy evidenced by Certificate of Occupancy BNA 5131 granted to the Appellant was validly granted

(b) Whether the Right of Occupancy could extinguish the title of the Respondent as a deemed holder.

Question (a):

Section 34 of the Land Use Act, as it were, recognizes the title of persons who were on the land before 1978 when the Act came into being. If the Land was developed by such persons, they are deemed holders of statutory rights of occupancies issued by the Governor by virtue of Section 34(2) and (3) of the Act. The right comes into existence automatically by the operation of law.

In the case in hand, it is in evidence and the court below so found that the land in issue was held by the Respondent and was indeed developed by him before the coming into existence of the Land Use Act in 1978. It is also in evidence that as far back as 1983 the land was the subject of the application for a Certificate of Occupancy on file No. BN 10617 at the instance of the Respondent (See page 1 of 5 exhibit 1). By the operation of Section 34 of the Act the respondent who had, the land vested in him was deemed to have continued to hold the same as if he was the holder of a statutory right of occupancy issued by the governor under Section 5 of the Act. A deemed right of occupancy is also a vested right recognised by the Act itself. Consequently, it must first have to be properly revoked or nullified before another statutory right of occupancy can be issued in its place. See Olohunde v. Adeyoju (supra) per Uwaifo, JSC at 505. The right will be properly revoked if and only if the revocation is done under Section 28 of the Land Use Act, for any of the reasons stated therein. For whatever reason the right is being revoked, the revocation shall be signified by notice duly issued and shall become valid when received by the person with such vested right. See Sections 28(6) and (7) of the Land Use Act.

In the case in hand, in the exercise of his powers under Section 5(1) of the Land Use Act (supra), in October 1993, the Governor of Benue State granted exhibit 2 (Certificate of Occupancy No.5131) to the appellant over the land in issue over which the respondent already had title and is deemed to be granted a statutory right of occupancy by the same Governor. There is no evidence that the government ever acquired this land. There is equally no evidence that the Governor revoked the respondent’s deemed statutory right of occupancy under Section 28 of the Land Use Act before he (the Governor) made this latter grant vide Section 2 to the appellant.

The respondent’s Statutory Right of Occupancy over the appellant over the same land. There were therefore in existence two valid rights of occupancy over the disputed land against the spirit of the law.

It is trite that where there exist at the same time two valid rights of occupancy to different persons in respect of the same land as in this case, one must of necessity, be valid. The invalid one must be the latter right granted without first revoking the former one under Section 28 of the Act. See Nigeria Engineering Works v. Denap (supra) per Ogundare, JSC at 292. A Certificate of Occupancy issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima facie evidence of such right interest or title without more and may in appropriate cases be effectively challenged and rendered invalid, null and void. See Mohamoud J.Lababedi v. Lagos Metal Industries (Nig) Ltd (1973) NSCC.1at 6.

Consequently, where it is proved, as in this case, that another person other than the grantee of a certificate of occupancy had a better title to the land, the court may have no option but to set aside the grant or discountenance it as invalid, defective or spurious as the case may be. See Dzungwe v. Gbishe & Another (1985) 2 NWLR (PT, 8) 528 at 540. 2. Ogunleye v. Oni (1990) 2 NWLR (PT.135) 735.

Considering the circumstances under which the appellant was granted exhibit 2 over the land in issue, the only option open to the trial court was to have found as submitted above and the invalidate the grant to the appellant evidenced by exhibit 2. Having failed to do so, the court below, therefore, properly held that exhibit 2 was invalidly granted and accordingly properly invalidated the same. The first question raised by issue 3 whether the statutory right of occupancy (exhibit 2) was invalidly granted the appellant is therefore resolved in the negative Issue 3(b) raises the question whether the right of occupancy granted the appellant could extinguish the title of the respondent as a deemed holder.

It has been submitted in paragraph 5.03 and 6.01 hereof that the respondent is deemed holder of a statutory right of occupancy over the land in issue, issued by the Governor by virtue of Section 34(2) and (3) of the Land Use Act, having had title to the land and also developed the same before 1978 when the Act came into force.

Issue 3 formulated by the appellant’s counsel itself draws the same conclusion.

Thus, being a vested right recognised by the Act itself, the deemed right of occupancy of the respondent cannot be likely taken away from him, and worst of all, simply by the grant of another right of occupancy over the same land to the appellant by the Governor as was done in this case. Be it noted that it has long been settled by this court that one right of occupancy cannot just on its face extinguish another. See Nigeria Engineering Works v. Denap. (supra) per Kutigi, JSC, at 277. Thus, the statutory right of occupancy granted the appellant was incapable of and infact did not extinguish the respondent’s deemed statutory right of occupancy over the land. The provisions of Sections 2 and 5 of the Act are not applied, in my respectful view, to defeat vested rights. Rather, they are only applied to defeat existing rights to the use and occupation of the land such as the right of a licensee, a mortgagee etc.

Under the law, the only recognised manner of extinguishing a vested right is by revoking the same for any of the following reasons:

(a) For overriding public interest.

(b) For public purposes.

(c) For breach of the provisions imposed by Section 10 of the Land Use Act.

(d) For breach of any terms envisaged by Section 8 of the Act.

(e) . For failure to comply with the requirements specified in Section 9(3) of the Act. (See Section

28 (ibid), See also Olohunde v. Adeyoju (supra).

Even then, under Section 28(6) and (7) of the Act, notice of the revocation must be given to the holder of a vested right before such right can be revoked and the service of the notice must be in accordance with the provisions of Section 44 of the Act. It is only where such proper and adequate notice was given to the holder as stated above that his right of occupancy shall be extinguished on receipt of such notice

In this case, no such notice was issued and served on the respondent before the appellant was subsequently granted the statutory right of occupancy evidenced by exhibit 2. exhibit 2 did not therefore extinguish the deemed statutory right of occupancy of the Respondent. Issue 3(b) is also resolved in the negative.

The sum total of all I have been saying is that exhibit 2 did not therefore extinguish the deemed statutory right of occupancy of the respondent. Issue 3(b) is also accordingly resolved in the negative. By the same token, I hold that their Lordships at the court below were right in their findings on issue 3 and their consequent judgment to decline to set aside the judgment of the court below.

ISSUE 4

I adopt my consideration of issue 3 above.

As to whether or not the appellant as plaintiff proved title to the plot of land in issue by the production of Exhibit 2, I am in agreement with the respondent’s submission that the appellant did not prove his root of title. This is because, this court has held repeatedly that once a party pleads and traces his root of title to a particular source and the title is challenged, to succeed, the party must not only establish his title to the land in issue, he must also satisfy the court as to the title of the source from whom he claims. See Alli v. Alesinloye (2000) 4 SCJN 264 at 282-283.

Where a plaintiff, as in this case fails to prove the base upon which he founded his title, the claim will fail. See Primate v. Adejobi Case (1978) 3 SC.65; Odofin v. Ayoola (1984) 11 SC 42; Mogaji v. Cadbury (1985) 2 NWLR 393 ratio 9 at 395 and 430; Ajani v. Ladepo (1986) 3 NWLR (Pt.28) 276 following Ekpo v. Ita 11 NLR.68. In other words where, as in the instant case, the respondent as the defendant/counter claimant challenged the appellant’s title (exhibit 2) and it was the case of the respondent that he is not only a holder of a statutory right of occupancy deemed to be granted by the Governor but also that even by traditional history and long possession, put his title in issue. See pages 146 – 148 of the record). His title having been thus challenged, it was incumbent on the Appellant as Plaintiff to have proved the following:

(a) The validity of Exhibit 2, his root of title.

(b) That he has a better title as compared to the respondent as defendant.

As regards the validity of exhibit 2, it is clearly invalid, the same having been issued to the appellant while the respondent’s prior title was still valid and subsisting. The submissions in paragraphs 5 and 6 are reiterated. I am therefore in agreement with the Respondent’s further argument that the appellant’s title having failed to pass the acid test of the law was accordingly declared invalid by the court below. He therefore failed to prove title to the land in Issue.

As to whether the appellant has a better title as compared to the respondent, it is trite that where there are two claimants to a parcel of land, declaration of title is made in favour of the party that proves better title. From the evidence adduced and the circumstances of the case in hand, I hold the view that the respondent proved a better title to the land in issue. He pleaded and proved that he is not only a holder of a statutory right of occupancy under Section 34 of the Land Use Act, but also that even by traditional history and long possession, he has a better title to the land (see pages 145 -158 of the record). The superior title of the respondent was admitted by the appellant through his counsel at the court below when he said in his brief of argument to the court that:

“There is ample evidence that the defendant had prior right over parcels (sic) Land in Makurdi, which is an Urban Area, before the coming into effect of the Land Use Act in 1978. I am not in doubt that the defendant’s father settled on the alleged land in 1950, which at that time was virgin land. After his death, the defendant took over the control and management of his vast land. There is no evidence to the contrary. See pages 224 and 225 of the record.”

Since as earlier pointed out, title can only be declared in favour of a person whose root is better, on the facts of this case, exhibit 2 tendered by the Appellant did not accord him a better right to the land he claimed over and above the Respondent. Issue 4 is also resolved in the negative and I so hold.

In the result, this appeal fails and it is accordingly dismissed with N50, 000 costs to the respondent.

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SC.302/2002

Henry Odeh Vs Federal Republic Of Nigeria (2008)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

The appellant herein and some policemen were arraigned before the Lagos Zone of the Miscellaneous Offences Tribunal. The appellant was charged with the following offences:-

Count One

“That you HENRY ODEH on or about the 24th day of March, 1995 at Imaba Compound, Igando, Lagos, dealt in to wit offering for sale 290.15 kg of Indian Hemp [Cannabis sativa] a drug similar to heroin cocaine or (LSD) without lawful authority and thereby committed an offence contrary to and punishable under section 10(H) National Drug Law Enforcement Agency Decree No. 48 of 1989.”

Count Two

“That you, HENRY ODEH, on or about the 24th day of March, 1995, at No. 24 Imaba Compound Igando, Lagos knowingly had in your possession 290. I5 kg of Indian Hemp [Cannabis sativa] a drug similar to Cocaine, Heroin [LSD] without lawful authority and thereby committed an offence contrary to and punishable under section 10(H) of the National Drug Law Enforcement Agency Decree No 15 of 1992.”

The 2nd to the 6th accused that stood trial with the appellant were jointly charged in the 3rd count with aiding the appellant to “deal” 290.15 kg of Indian Hemp [cannabis sativa] contrary to section 10(c) of the National Drug Law Enforcement Agency Act aforesaid and punishable under section 10 (d) of the same Act. There was also a fourth charge against the 2nd-6th accused” persons. At the trial the prosecution called five witnesses in all and the appellant and the other accused persons gave evidence but called no other witness. The second count against the appellant was withdrawn upon an application requesting the withdrawal of the charge by the prosecution on the 30th day of April 1998. The trial tribunal found the appellant guilty on count one and sentenced him to 10 years imprisonment. The appellant being dissatisfied with his conviction appealed to the Court of Appeal, Ibadan, which set aside the conviction and sentence of the appellant in count one of the charge but however convicted the appellant on a different offence of being in unlawful possession of the 290.15 kg of Indian Hemp under section 10 (d) of the NDLEA Act, which the Court of Appeal found proved. This led to the enhancement of the punishment of the appellant from 10 years to 15 years as provided by section 10(H) of the NDLEA Act of 1992. It is against that decision that the appellant has appealed to this court. The Notice of Appeal contains three grounds of appeal which read thus:-

“Ground One”

“1. The Honourable Court of Appeal erred in law in holding that exhibit 7 was a confessional statement and thereby convicted the appellant for possession of 290:1 5 kg Indian Hemp [cannabis sativa] and thereby occasioning a miscarriage of justice.

Particulars of Error:

(a) The appellant had explained the circumstance, under which exhibit 7 was obtained and yet the court attached so weight to exhibit 7 even in the absence of other corroborative evidence

(b) Exhibit 7 was not a confessional statement as to the commission of the offence for which the appellant was charged and in view of section 27 (c) of the Evidence Act cap 112 Laws of the Federation 1990, the learned justices of the Court of Appeal ought to have discountenanced or disregarded it.

(c) Exhibit 7 is in respect of previous arrest of the appellant by some unnamed police officers and does not relate to the charge preferred against the appellant.

(d) Exhibit 7 was not consistent with other facts that were proved in the course of the proceedings.

(e) The learned justices of Court of Appeal did not properly evaluate the whole evidence that was before the tribunal while considering Exhibit 7.

(f) It is trite that an extra judicial statement [whether confessional or otherwise] made by an accused person and admitted in evidence as an exhibit with or without objection whether made voluntarily or not is not a statement of truth of all that happened. ”

Ground Two

The Honourable Court of Appeal erred in law and on the fact when it held the appellant guilty of the offence of possession of Indian Hemp.

Particulars of Error:

(a) The prosecution failed to prove the essential ingredients of the offence of possession of Indian Hemp under section 10 (H) of the NDLEA Decree No. 15 of 1992. To wit knowingly had in your possession 290.15 kg of Indian Hemp (cannabis sativa) without lawful authority.

(b) There was evidence before the lower court which was not controverted that No. 24 Imaba Street Igando, Lagos is accessible to other tenants living at that premises with or without the appellant’s consent. There is therefore no conclusive proof that the 46 bags were deposited by the appellant at the rooftop.

(c) The prosecution failed to call material witness one Mr. Christopher who allegedly recovered the 46 bags and who would have resolved the issue of ownership or possession one way or the other.

(d) The evidence of P.W 1 and P.W. 4 in respect of the ownership of the 46 bags is of no probative value since they were not the persons that recovered the substance and therefore their evidence is hearsay evidence which is not admissible on this point.

(e) Exhibit 7, the alleged confessional statement which the Honourable Court below heavily relied on in convicting the appellant of possession is not conclusive on this point and the circumstances under which the said Exhibit was obtained had been satisfactorily explained by the appellant.

(f) Exhibit 7 was not corroborated.”

Ground Three

The Honourable Court of Appeal erred in law convicting the appellant for knowingly being in possession of 290.15 kg of Indian Hemp the charge having been withdrawn by the prosecution itself and was accordingly struck out by the tribunal.

Particulars of Error:

(a) The prosecution did not substitute, at any time during trial the said charge withdrawn by it and struck out by the Honourable Tribunal.

(b) The offence knowingly being in possession of Indian Hemp is not a lesser offence to that of offering for sale Indian Hemp without lawful authority.

(c) The withdrawal of the said charge without any substitution, is an admission by the prosecution that it could not sustain or prove the charge.

(d) The prosecution did not file any cross appeal on the said charge struck out in the Honourable Tribunal.”

In his brief of argument for the appellant, the learned counsel has identified formulated and submitted three issues for the determination of the appeal. The issues read as follows:-

“I. Whether the learned Justices of the Court of Appeal were right in law when they convicted and sentenced the appellant to 15 years imprisonment after setting aside his conviction by the trial Court (Tribunal) in Count One of the charge

2. Whether the learned Justices of the Court of Appeal were right in law when they relied on exhibit 7 to convict the appellant for being in possession after count two of the charge dealing with possession had been withdrawn and struck out by the trial court (Tribunal).
3. Whether section 17 (6) of the NDLEA Act Cap 253 Laws of the Federal Republic of Nigeria 1990, is inconsistent with the provision of section 6 (6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 and therefore null and void to the extent of its inconsistency.” At the hearing of this appeal before this Court, the learned counsel for the appellant conceded that the third issue for determination recited above is not covered by any of the grounds of appeal. At page 2 paragraph 1.04 of the appellant’s brief, the appellant indicated his desire to seek leave to argue an additional ground of appeal. The appellant had not sought for the leave to argue any additional ground of appeal. It is now settled law which does not require any authority, that issues for determination cannot be formulated outside the grounds of appeal. Issues for determination formulated must be related to the grounds of appeal.

Every issue for determination must be formulated from and related to or distilled from a competent ground of appeal. In other words, an issue not distilled from any of the grounds of appeal, is incompetent and must be discountenanced together with the argument or arguments advanced there under. I accordingly strike out the third issue and all the arguments canvassed by the appellant on it.

The learned counsel for the respondent adopted more or less the remaining two issues. Before discussing the issues for the determination of the appeal, I think it is desirable at this juncture to recount briefly the facts of the case.

Acting on information received by the chairman of the NDLEA, in Lagos, P.W.1 and P.W.4 along with some other officials of the NDLEA, went to the appellant’s house at 24, Imaba Street, Igando Lagos on the 24/3/1995. The information received was that the appellant was dealing in hard drugs. On arrival at the premises, the witnesses said they met the appellant, the men were led by the appellant into his room, they searched the appellant’s room but nothing incriminating was found. One of the men climbed into the roof through the ceiling of the appellant’s room and on the roof top recovered 46, bags of Indian Hemp. They carried the appellant and the 46 bags to their office at Ikoyi Lagos. It was in the course of interrogating the appellant that the appellant revealed that he had earlier been arrested by five policemen from Idimu police station on the 22/3/1995 but was later released along with the drugs seized from him after he had paid the police men some money. P.W. 5 a commercial bus driver stated how he was on 22/2/95 stopped by policemen and asked to dislodge his passengers. His vehicle was used in loading and taking 46 bags from the appellant’s residence to ldimu police station in company of the appellant and later he was told to return the bags with the appellant to the appellant’s residence. The policemen were arrested and were arraigned with the appellant as stated above.

The appellant made a statement to the NDLEA shortly after his arrest. The statement was admitted in evidence without any objection as Exhibit 7. In Exhibit 7, the appellant stated:- “xxxxxxxxxx I joined carpentry work in 1984 and that is the work I am doing right now. I am a carpenter but that does not help me fetch much money; that is why I entered drug business. I started drug business in 1989 when I married my wife Comfort. Unfortunately on 22/3/1995, police officers from Idimu in Lagos came to my house and arrested my wife when I was out for my business, when I came back, I was told by a friend of mine that police came and look for me but I was not in and they have arrested my wife. So I went to the police station and we discussed settlement with them at N30, 000.00 of which I have given them N21, 000.00 and remain a balance of N9, 000.00. I paid the sum of NI, 500 for the vehicle they hired in conveying the drugs back to my house. They said they are retaining 4 bags since I have not brought the remaining balance of N9, 000.00.

On 24/3/1995 some officers came to my house again and introduced themselves that they are from NDLEA and they reached my house and found some bags of drugs which I hid on top of ceiling and packed everything and also took me to their office.”

In his evidence before the tribunal, the appellant denied telling the NDLEA that he had anything to do with the bags of Indian Hemp and that he did not know any of the policemen who stood trial with him. He also stated that exhibit 7, his statement to NDLEA was not made voluntarily by him and that it was dictated to him by the NDLEA. The tribunal found the appellant guilty of Count one. As mentioned above, the appellant appealed to the Court of Appeal where the conviction in Count one was set aside and in its place, the appellant was convicted for the offence of possession punishable under section 10 (d) of the NDLEA Act. I shall now deal with the remaining two issues submitted to this Court for the determination of the appeal.

ISSUE NO.1

It is submitted by the learned counsel for the appellant that the justices of the lower court acted in error when they convicted and sentenced the appellant for 15 years imprisonment after setting aside his conviction and sentence by the tribunal on the only count of the charge. The Court of Appeal also acted in error after holding that the charge in Count 2 against the appellant which was for knowingly being in unlawful possession of the drugs was withdrawn by the prosecution and struck out by the tribunal. It is submitted that the lower court was in error to resurrect the charge in Count two and convict the appellant on it, when the prosecution had withdrawn and the trial tribunal had struck out the charge. It is again submitted that the Court below erroneously invoked the provision of section 179(1) of the Criminal Procedure Act to “convict the appellant of a lesser offence and thereby sentenced him to 15 years as against 10 years given by the trial tribunal.” It is further stressed that having withdrawn the charge which was struck out by the tribunal, the Court of Appeal was in error to convict the appellant on the same count that was withdrawn. Learned counsel referred to and relied on the case of Okeke v. The State [1999] 2 NWLR (Pt. 590). Ahmed v. The State [1999] 7 NWLR (Pt. 612). It is further argued that the Court of Appeal relied on speculation rather than on the legal evidence adduced by the prosecution to convict the appellant for the offence of unlawful possession of Indian Hemp. It is submitted again, that the prosecution failed to adduce evidence beyond reasonable doubt that the appellant committed the offence for which he was found guilty. Learned counsel referred to and relied on the case of State Vs. Aibangbee (1988) 3 NWLR (Pt. 84) 549.

The learned counsel for respondent on the other hand submitted that the Court of Appeal was right in finding the appellant guilty of the offence he was convicted by it even though it discharged him of the count of dealing in the drug of Indian Hemp. It is argued that the ingredients of the offence of possession under section 10(c) of the NDLEA Act were proved by evidence and the court was justified in convicting the appellant and punishing him under section 10(d). It is submitted further that the Court of Appeal properly evaluated the evidence led before the tribunal and correctly came to the conclusion that the offence was undoubtedly committed. The offence of knowingly being in possession of the drugs is subsumed in the offence of dealing with the substance.

It is further argued that the Court of Appeal properly guided itself by section 179(1) of the Criminal Procedure Act. It is submitted that there was no miscarriage of justice in convicting the appellant for possession under the overwhelming evidence. The jurisdiction of the court to consider for a lesser offence when determining the guilt of accused person has been settled in many cases. The learned counsel referred to the cases of Oladipupo v. State [1993] 6 NWLR (Pt. 298) 131, Udoh v. State [1993] 5 NWLR 295.

On the issue of proof beyond reasonable doubt as raised by the appellant in his brief, the learned counsel for the respondent submitted that the argument is misplaced. The prosecution adduced overwhelming evidence which placed the appellant in actual or constructive possession of the drugs and that the appellant had knowledge that the drugs were in his possession unlawfully. There was the evidence of P.W.1, P.W. 4 and also the confession of the appellant in Exhibit 7. The Court of Appeal in its judgment upheld the findings of fact by the tribunal that Indian hemp was found on the roof top of the appellant and that in Exhibit 7, the appellant admitted the possession of the drugs. It is further argued that an accused person can be convicted on his confessional statement alone. See Ikemson v. State [1989] 1 ACLR 80. It is further argued that the onus of proving irregularity and miscarriage of justice is entirely on the appellant and the appellant in the instant case has failed to do so. See Cyril Udeh v. The State [2001] 2 ACLR 356.

It is further argued that even if some technical flaws exist, they cannot avail the appellant as justice dispensation on the basis of technicalities is no longer fashionable. See Effiom v State [2003] 3 ACLR, 192.

Now, there is no doubt that the Court of Appeal discharged the appellant against the offence of “dealing in” with drugs a more serious offence which clearly carries a life imprisonment under section 10 (c) as amended with an offence punishable under section 10 (d) which carries a sentence of imprisonment for a term of not less than 15 years. It is the law that an appellate court can convict and impose a sentence on an appellant for lesser offence than that for which he was convicted by the trial court if from the circumstances of the case; the latter conviction should have been the proper one. See Akwule v. The Queen [1963]1 ALL NLR 193. Bande v. The State [1972] 10 SC 79. Adebayo v. The Republic [1967] NMLR 391. Where an accused person is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged, he may be convicted of the offence which he is shown to have committed by the evidence regardless of the fact that he was not charged with that particular offence. See Onogwu v. The State [1995] 6 NWLR (Pt.401) 276. In the case of Ogu v The Queen [1963] NSCC 191 at 192 this court substituted a conviction of the appellant for culpable homicide punishable with death contrary to section 22I of the Penal Code law with that of screening an offender punishable under section 167 of the same Penal Code law. It is now settled law that an appellate court such as the Supreme Court or the Court of Appeal may where an appellant has been charged and convicted for an offence and the court that tried could on the information or charge have found him guilty of some other offence, and on the finding of the lower court, it appears to the appellate court that the lower court must have been satisfied of the fact which proved him guilty of that other offence, the appellate court may instead of allowing or dismissing the appeal, substitute for the verdict found by such court, a verdict of guilty of such other offence and pass the sentence in substitution for the offence passed at the trial as may be warranted in law. It is also settled law that an appellate court in determining an appeal before it possesses all the powers of the Court of trial. See section 16 of the Court of Appeal Act. The mere fact that an appellate court exercised its statutory power to substitute a conviction of one offence for the other under section 179 of the Criminal Procedure Act does not ipso facto breach the appellant’s rights to fair hearing nor does it occasion any miscarriage of justice.

Now, section 179 (1) of the Criminal Procedure Act applicable to these proceedings provides:-

“In addition to the provisions herein before specifically made, whenever a person is charged with an offence consisting of several particulars a combination of some of which constitute a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved, he may be “convicted of such lesser offence or may plead guilty thereto although he was not charged with it.”

The Court of Appeal found that there was no evidence “properly adduced to prove that the appellant was selling or “dealing in” the drugs, but beyond any dispute that the appellant was knowingly in unlawful possession of the Indian Hemp. The offence for which he was charged was more grievous, the prosecution must prove (1) he was knowingly in unlawful possession and (2) he was dealing with the substance such as selling it. The offence of being in unlawful possession is clearly a lesser offence and carries less sentence. It is of no moment when the trial tribunal mistakenly sentenced the appellant for dealing in the Indian Hemp to merely 10 years imprisonment. The Court of Appeal would have the power to pass appropriate sentence permitted by law. See Nworie v. C.O.P. [1960] 5 FSC 124. Ogidi v. C.O.P [1960] 5 FSC 251, Nwobu v. C.O.P. 11962) ALL NLR 382. An appeal court may, where the ends of justice may be properly met, reduce or increase the sentence imposed by the trial Court. See also Ekpenyong v. The State (1967) ALL NLR 285. Gano v. The State [1965] 1 ALL NLR 352, Mohammadu v. C.O.P 11969) 1 ALL NLR 465. Ekpo v. The State (1982)6 SC 22.

In my view, it is immaterial that the prosecution withdrew the charge on the 2nd count. As mentioned above the charge in the second count was clearly subsumed in the first count. There must be unlawful possession of the drugs before one could “deal with it or sell it.” In Adebayo v. The Republic supra, it was held that where there are charges against an accused person and one charge includes the other, the two charges should be treated as if they are in the alternative. The main purpose of a charge is to give the accused person notice of the case against him. See Faro v. Ige (1964) 1 ALL NLR 6.

On the issue of proof of unlawful possession, the evidence tendered by the prosecution is overwhelming. The evidence of P.W 1, PA and P.W. 5 stood unchallenged and uncontradicted by the appellant and further more the appellant categorically admitted in Exhibit 7 of being in unlawful possession of the bags of Indian Hemp. In my view considering all the circumstances of this case, there is no irregularity in the approach by the Court of Appeal occasioning any miscarriage of justice.

A trial court and an appeal court both have power under section 179 (I) of the Criminal Procedure Act to substitute a conviction for a lesser offence on a charge for an offence containing several particulars where only such particulars as made up of the lesser offence were proved. See Queen v. Nwaugogwu [1962]1 ALL NLR 294, Shoshimo v. State 1974 10 SC 91, Onasile v. Sami [1962] 1 ALL NLR 272. Wilson v. Queen [1959] 4 FSC 175.

In the instant case, the appellant clearly confessed to the unlawful possession of bags of Indian Hemp. In my view he was rightly convicted by the Court of Appeal by invoking the provisions of section 179 (I) of Criminal Procedure Act.

I accordingly find no merit in this issue and I resolve it against the appellant.Issue 2

The second issue submitted by the appellant is whether the conviction of the appellant for possession by the Court of Appeal based on exhibit 7 can be sustained. It is submitted that the Court of Appeal was in error to have found the appellant guilty of the offence of possession and to sentence him to 15 years imprisonment. It is further submitted that the withdrawal of the charge on count 2 before the tribunal completely brought the case against the appellate to an end. Learned counsel referred to the case of James v. Nigeria AirForce (2001 13 NWLR (Pt. 684) 406 at 410.

It is again stressed that the charge of possession against the appellant came to an end on the 30th day of April, 1998 and the Court of Appeal acted without jurisdiction when it convicted the appellant and sentenced him to 15 years imprisonment for being in possession of Indian hemp on the 12/7/2001. It is again argued that Exhibit 7 was predicated on Count No. two and having struck out count No. two Exhibit 7 cannot stand alone there was therefore no premise or pedestal to predicate or base Exhibit 7 on. It is further argued that Exhibit 7 is not conclusive on the point of possession by the appellant of the Indian Hemp. Learned counsel relied on the case of Nasiru v. the State [1999] 2 NWLR. (Pt.569) 87 at 97.

The learned counsel for the respondent on the other hand argued that the Court of Appeal was right when it convicted and sentenced the appellant for the offence of unlawful possession of the bags of Indian Hemp even though count 2 of the charge was withdrawn by the prosecution and struck out by the tribunal. It is submitted that the conviction of the appellant by the Court of Appeal was premised in the power granted the court by section 179(2) of Criminal Procedure Act.

It is argued that the charge withdrawn against the appellant was one contrary to section 10 H, while the Court of Appeal found the appellant guilty under section 10 D. It is further stressed that the Court of Appeal after finding that the appellant was not guilty of the offence of “selling” or “dealing” with Indian hemp found him guilty of a lesser offence by invoking its powers pursuant to section 179 (1) and (2) of the Criminal Procedure Act. It is again argued that the conviction of the appellant to the lesser offence by the Court of Appeal was not done in pursuance of Count Two but on the bona fide exercise of the powers granted under section 179 of the Criminal Procedure Act. It is further argued that a criminal court can convict an accused person on the voluntary confession alone. Learned counsel referred to the cases of Ihuebeka v. The State [2000] NSCQR Vol 2 part 1 1286 at 189; Akinoji v. The State [2000] NSCQR Vol. 2 pt 1 90 at 93.

It is submitted that Exhibit 7 the voluntary statement of the appellant was tendered at the trial without any objection, if the appellant wanted to object to the admissibility of the statement he should have objected to it when it was tendered in evidence. It was too late in the day for the appellant to object to its admissibility. It is an after thought to claim now that it was “dictated to me.”

See NWANGBOMO Vs. STATE (2000) ACLR 9 at 14. I have discussed all the points raised by both the appellant and the respondent in Issue two in some detail while considering the first issue. Suffice it for me to say that the conviction for the appellant was not based on the Count Two which was withdrawn. Count two which was withdrawn and struck out was punishable under section 10 H of the NDLEA Act as amended, while the appellant was convicted under section 10 (d) of the Act by the Court of Appeal. This clearly shows that there is no connection between the withdrawn charge and the offence for which the appellant was convicted. In any event when the Court of Appeal was seized with the matter by the provisions of section 179 (1) and (2) of the Criminal Procedure Act, the Court can substitute a conviction for a lesser whenever it is appropriate to do so. See Queen v. Nwaugogwu (supra), Onasile v. Sami (supra).

The other point is whether a court can convict on the basis of confession alone. I have alluded above that the evidence of P.W.1, P.W. 4 and P.W. 5 go to show that the voluntary statement of the appellant in Exhibit 7 was true. The Court of Appeal was clearly justified to act on it. In the Uluebeka case supra this court stated:-

“In the case of Silas Ikpo v. The State (1995) 33 LRCN 587 at 587, a free and voluntary confession of guilt whether judicial, or extra judicial if it is direct and positive and properly established is sufficient proof of guilt and enough to sustain a conviction so long as the court is satisfied with the truth of such confession.”

The law is fairly settled that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction and generally without any need of other corroborative evidence so long as the court is satisfied with its truth. A cursory glance at exhibit 7 shows that it is a direct, positive, voluntary and an unambiguous admission by the appellant that the bags of Indian Hemp were found in his possession. The evidence of the other witnesses clearly established the truth of the statement of the appellant in Exhibit 7. I accordingly also resolve the second issue against the appellant.

In the result, this appeal fails and I dismiss it. I affirm the decision of the Court of Appeal.

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SC.334/2001

Ogli Oko Memorial Farms Limited & Anor V Nigerian Agricultural And Co-operative Bank Limited (2008)

LAWGLOBAL HUB Lead Judgment Report

W.S.N.ONNOGHEN, JSC 

This is an appeal against the judgment of the Court of Appeal holden at Jos in appeal NO. CA/J/128/96 delivered on the 29th day of November, 1999 in which the court dismissed the appeal of the appellants against the judgment of the High court of Benue State holden at Otukpo in suit No. OHC/55/95 delivered on the 23rd day of January, 1996 in which the court entered judgment in favour of the respondents, then defendants/counter claimants in default of defence thereto. By a Statement of Claim filed on the 3rd of July, 1995, the appellants, as plaintiffs, claimed against the defendants, now respondents jointly and severally as follows:- “(a) A declaration that the plaintiffs are not indebted to the 1st defendant in the sum of one million, thirteen thousand, one hundred and twenty Naira, eighty kobo (N1,013,121.80) or any other sum as the amount of the plaintiffs indebtedness to the 1st defendant (if any) has not been determined and accepted by the parties as the sum being owed. (b) A declaration that at the interest rate prevailing when the sum was advanced, the amount of money being owed (if any) is nowhere near the sum of N1,013,121.80 now being claimed by the defendant. (c) A declaration that the one storey building/property, lying and situate at No. 1, Ogiri Oko Road, Makurdi which is covered by the Benue State statutory certificate of Occupancy No. BP 3232 was at no time mortgaged to the 1st defendant as a collateral or security for any facility granted to the plaintiffs. (d) A declaration that the notices of auction dated the 17th day of July, 1994 and the 17th day of May, 1995 putting up the property described in sub-paragraph (c) above for sale as null, void and of no effect; the same having not been pledged as a collateral to secure any facility or loan. (e) An order restraining the defendants or any of them from auctioning the property above referred to in sub-paragraphs (c) and (d) respectively. (f) A declaration that the contract between the 1st plaintiff and the 1st defendant was frustrated by events which were unanticipated and uncontrollable by the parties, being an act of Cod, and that the 1st defendant was not entitled to cause any of the 1st plaintiff’s properties to be advertised for sale by way of auction or any other means and by any person or agent. (g) An order of the court declaring that since the loss was not caused by the plaintiffs but an act of Cod, the consequent financial loss occasioned there from should be totally born (sic) by the 1st defendant. (h) A declaration that even if it is established that a loan obligation exists between the 1st plaintiff to the 1st defendant, the material rate of interest applicable to the loan shall be that agreed upon at the time the relationship between the 1st plaintiff and the 1st defendant commenced in 1987. (i) An order directing the 1st defendant to return and/or release Certificates of occupancy No. 38/AD of the 12. 8. 86 and no. 228/87 of the 15 . 9 . 87 now in the 1st defendant’s possession to the plaintiffs. (j) A declaration that no legal relationship exists between the 1st plaintiff and the 1st defendant” On the 23rd day of October 1995 the respondents, then defendants filed a motion on notice before the trial court praying that court for the following orders: “(a) An order granting leave to the applicants to file and serve their statement of Defence out of time and/or granting the applicants extension of time within which to file and serve their statement of Defence. (b) An order deeming the statement of Defence annexed to the application as duly filed and served.” The above motion was stated thereon as slated for hearing on the 12th day of December 1995 at the “usual hour of 9 o’clock in the forenoon or so soon thereafter.” To the affidavit in support of that motion is annexure “A” headed “Joint Statement of Defence” in which the respondents claim as follows:- “9. WHEREOF the 1st plaintiff claims from the defendants jointly and severally the sum of N825,046.66 (Eight hundred and twenty-five thousand, forty six naira sixty-six kobo) only being the outstanding indebtedness of the defendants to the 1st plaintiff as at 30.9.95 with interest of l31/2 per annum from 1.10.95 until judgment and payment of the judgment sum.”

From the pleadings of the parties, it is very obvious that there was a loan/credit facility transaction between the plaintiffs and the 1st defendant which later resulted in a dispute between the parties following the failure of the plaintiffs to repay same. However, at the stage in which judgment was entered by the trial court in the counter claim against the appellants, evidence had not been called, it is also very important to note, at this stage, that at the time judgment was so entered, there is no evidence on record to show that the respondents’ motion on notice to file a statement of Defence out of time and to deem what had been filed and served as properly filed and served, which was fixed for hearing in December, 1995 was never heard and granted on or before the 23rd day of January, 1996 when judgment was entered on the said counter claim on the ground that the appellants failed and or neglected to file any defence thereto despite service of same on them. Before the judgment was entered, S.O. ITODO Esq, of counsel for the plaintiffs applied to the court to be discharged from the case on the ground that his clients had ceased to further instruct him on the matter, to which application learned counsel for the defendants, OMENGALA Esq did not oppose as a result of which the learned trial judge ruled, inter alia, as follows:- “………… I believe Mr. Itodo that he had made several abortive efforts to get his clients interested in the due prosecution of the suit in the circumstance the suit is hereby struck out. This order shall forthwith be served on the plaintiffs.” From the above, it is very clear that what started as an application of counsel to be relieved of his obligation to further appear and conduct his professional duties to his clients ended up with the striking out of the suit. The plaintiffs were not present in court on that day but there is an order by the court that they be notified of the striking out of the suit. The proceeding of that day become more dramatic when soon after making the above order, the following recordings were made by the learned trial Judge: “Omengala: we have a counter claim. no defence was filed to the counter claim which we claim N825,046.66 as at 30 . 9 . 95 and interest thereon at 13.5% P.A from 1 . 10 . 95 until the judgment is satisfied. By order 27 Rule 2(1) of this Court, we are entitled to judgment since there is no defence to the counter claim, we ask for the judgment in the counter claim as per our statement of defence. Court Mr. Itodo, what do you say? Itodo: I am out.

JUDGMENT In the counter claim the defendants claim that the plaintiffs are/were indebted to the 1st defendant in the sum of N825,046.66. That is the state of account as at 30 . 9 . 95. The defendants also claim an order directing the plaintiffs to pay interest at 13.5% P.A from 1 . 10 . 95 until the judgment debt is fully and finally liquidated. There is no defence to the counter claim whereupon Mr. Omengala invoking order 27 Rule…D of the Rules of this court to ask for judgment in the amount plus interest at 13.5% P.A …….. Judgment is hereby entered in favour of the 1st defendant for the sum of N825,046.66 plus interest at 13.5% per annum commencing from 1 . 10 . 95 until the judgment debt or part shall have been fully and finally paid. The judgment shall forthwith be served on the plaintiffs.” The appellants were not happy with the above judgment of the court and appealed to the Court of Appeal, which as stated earlier in this judgment, dismissed their appeal resulting in the further appeal to this court where the issues for determination, as identified by learned counsel for the appellants in the appellants joint brief of argument filed on 9/8/01 and adopted in argument of the appeal on 14/1/08, are stated therein as follows:- “(a) were the learned Justices of the Court of Appeal in their majority decision, right in their view that the judgment in respect of the counter claim is valid in law? (b) were the learned Justices of the Court of Appeal in the majority decision, right in their view that the appellants’ right to fair hearing was not breached in the circumstances of this case?” The above issues were adopted by learned counsel for the respondents in the respondents’ brief of argument deemed filed on 31/3/04. In arguing issue 1, learned counsel for the appellants submitted that there was no counter claim filed at the trial court as the motion slated for hearing on 12/12/95 was neither moved nor granted by that court and as such the said motion is deemed abandoned, relying on State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 at 58 and Atse v. Cachi (1997) 6 NWLR 609 at 629; that the trial court was in error when it proceeded under order 27 Rule 2(1) of the High Court Rules and the lower court in affirming that decision to give judgment for the respondents when there was no counter claim properly so called before the court thereby rendering the court incompetent as the condition precedent to its exercise of its jurisdiction did not exist, relying on the case of Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 594; that no payment was made for the counter claim as what was reflected at page 24 of the record was in respect of the joint Statement of Defence and PAGE| 4 that since a counter claim is an independent action it has to be separately paid for to make it competent, relying on Atolagbe v. Awuse (1997) 7 SCNJ 1 at Nwosu v. Okoye (1996) 1 S.CNJ 1 at 36; that since order 25 Rule 3(4) of the Benue state High Court Civil Procedure Rules 1988 granted the appellant 30 days within which to file a defence to the counter claim, that time would have started to run from the date the motion on notice for extension of time to file the statement of Defence would have been granted, which, in this case never materialized and urged the court to resolve the issue in favour of the appellants. On his part, learned counsel for the respondents, in a rather curious way, stated that he had in his respondents’ brief before the lower court raised the issue of incomplete record to which the appellants filed no reply brief and submitted that the appellants have thereby accepted or conceded the point as the law is that issues raised and not countered are deemed admitted; that “a look at the entire record of proceedings of the trial court will show that the motion for leave to file Defence was in fact moved and granted before the date in which judgment was entered” but funny enough learned counsel for the respondents, whom I consider to be very responsible by his calling, did not say when it was so granted and at what page of the record. Granted that the record of appeal is incomplete and that the motion “was in fact moved and granted before the date in which judgment was entered” it is the duty of learned counsel who is a minister in the temple of justice to inform this Court of the date when the same was moved and granted particularly between 12/12/95 when it was slated for hearing and 23/1/96 when the judgment was entered. Be that as it may, learned counsel further submitted that the issue of absence of evidence of the grant of the motion for extension of time to file a defence which embodied the counter claim is a fresh issue which requires the leave of the court which was not obtained by the appellants; that “the issue (of absence of evidence of grant of the motion on notice) is not an attack on the jurisdiction of the Honourable court to hear and determine the counter claim. The non-filing of the counter claim if true (not conceded) merely impairs the exercise of jurisdiction;” that whilst a litigant cannot waive substantive jurisdiction, he can waive procedural jurisdiction and that at best the non-grant of the motion on notice to file defence if at all, though not conceded, is merely procedural which the appellants have, by conduct waived, relying on Mrs. Eno Okon Epuk v. Mrs Bassey Ita Okon (2002) FWLR (Pt. 84) 145 at 62 and urged the court to resolve the issue against the appellants and dismiss the appeal. In the reply brief filed on 11/1/08, learned counsel for the appellants , O.O. Jalaawo Esq. submitted that parties are bound by the record of the courts; that in the instant case the record shows that leave was granted the appellants on 16/1/07 to raise a new issue which related to the non-filing of the counter claim; that there are principles guiding compilation of records of appeal and how such records can be challenged relying on Orugbo v. Una (2002) 12 S.C (Pt. 11) 1 at 19 and urged the court to resolve the issue against the respondents. From the arguments of learned counsel for the parties, it is clear that both are agreed that for a counter claim or any suit for that matter to be validly before the court for consideration on the merits, it has to be properly filed. However, while the learned counsel for the appellants contend that the motion on notice for an order for extension of time to file a Statement of Defence which incorporated a counter claim and a further order to deem what had been filed and served as duly so filed and served was neither moved nor granted as prayed and by extension no counter claim existed in law, the learned counsel for the respondents has argued that it was so moved and granted before the 23/1/96 when the judgment was entered though, as pointed out earlier in this judgment the time as to when such grant was made had not been stated by learned counsel for the respondents. The question then is whether the motion slated for 12/12/95 was ever moved and granted by the lower court I have carefully gone through the record of the trial court and am unable to see where that motion was moved and/or granted by that court, it is important to note that the said motion was slated for hearing on 12/12/95 while the judgment on the counter claim was entered on 23/1/96. This means that the motion, if granted as contended by learned counsel for the respondents would have been so granted either on 12/12/95 when it was fixed for hearing or any other date before the 23/1/96. in the instant case the proceedings of 23/1/96 clearly show that the said motion was not granted that day. Though learned counsel for the respondent stated emphatically that it was moved and granted before 23/1/96, he never stated the date when the motion was allegedly moved and granted, in the circumstance it is very clear and I hold that the motion in question was never moved nor granted before the 23/1/96 when the judgment on the counter claim was entered by the trial court as there is no evidence of the grant of same in the record of appeal neither has learned counsel for the respondents who contends the contrary produced any evidence to establish same, it is settled law that parties and the court are bound by the record of the court which in the instant case does not contain any evidence of the grant of that motion. Granted that the record of appeal is in fact incomplete as contended by learned counsel for the respondents, there exists established procedure to be adopted when challenging the correctness or otherwise of the record of the court which is definitely not by stating so in a brief of argument. Any person who is contending that the record of proceedings before an appellate court is not a fair record of what happened at the court of first instance must first formally impeach the record of proceedings. Where the record of proceedings is not formally impeached, it is not open to the appellate court to speculate that other things happened in the trial court which were not recorded in the record of proceedings, in the instant case, the respondent failed to impeach the record of proceedings before either the Court of Appeal or this Court, it was not shown that the record was not a full and complete minutes of all that transpired in the court of first instance – See Yarzabaina v. Kano N.A. (1961) 1SCNLR 244; Panalpina v. wariboko (1975) 2 S.C 29; State v. Aibangbee (1988) 3NWLR (Pt 84) 548, Animashaun v. University College Hospital (1996) 10 NWLR (Pt. 476) 65; Ogidi v State (2005) 5 NWLR (Pt. 918) 286 at 309, (2005) 1 SCM, 159. PAGE| 5 While still on this issue, it is very important to note that the jurisdiction of the court to hear and determine any matter is invoked by the filing of the appropriate process in the registry of the court and by “filing” of a process is meant payment by the litigant of the appropriate filing fees as assessed by the appropriate or designated registrar of the court concerned, when a process is not duly filed before the court, it does not, in the eyes of the law, exist and as such cannot invoke the jurisdiction of the court. It is not a matter of procedural jurisdiction as contended by learned counsel for the respondents but of substantive jurisdiction, in the instant case, there is no evidence that the counter claim was separately paid for by the respondents so as to bring same properly before the court, on the other hand the Statement of Defence was assessed and paid for. it is settled law that a counter claim is a separate and independent action which has to be instituted in accordance with the rules of the court, in the instant case there is no evidence of any payment for the institution of the counter claim which, granted that the motion was ordered as prayed, which is not conceded, would still have rendered same (counter claim) incompetent, it is also my view that there being no counter claim to which the appellants would have filed a defence, it was wrong for the trial court to hold that no defence was filed to a non-existent counter claim and that the lower court was equally in error when it affirmed the decision of the trial court.

On issue 2, learned counsel for the appellants submitted that in the circumstances of the case which shows that on the 23/1/96 the appellants were absent in court, their counsel Itodo Esq, withdrew his appearance and their case struck out, it was the duty of the trial court to have adjourned the purported counter claim for hearing and to have ordered a hearing notice to be served on the appellants; that the issue is not whether the appellants filed a defence to the counter claim but whether they were given the opportunity to be present and heard when the case was determined against them; that the lower court was in error when it distinguished the instant case from the case of Dan Hausa v. Panatrade (1993) 2 SCNJ 10 at 109 and that the right of the appellants to fair hearing was violated, relying on Nwokoro v. Onuma (1990) 5SCNJ 93 at 100 and urged the court to resolve the issue in favour of the appellants and allow the appeal.

On his part, learned counsel for the respondents submitted that the appellants were not denied fair hearing in the circumstances of the case and that the lower court was right in affirming the judgment of the trial court; that appellants were served with the counter claim but they elected not to file a defence thereto as found and held by the lower court at page 65 of the record; that by the provisions of order 27 Rules 2(1) and 9, the trial court would still have entered judgment against the appellants even if they were present in court on 23/1/96 without hearing from the appellants; that the position would have been different if the counter claim had been adjourned to a date for hearing and no hearing notice was served on the appellants which would have made the decision in |.Dan Hausa & Co. Ltd. v. Panotrade Ltd supra applicable and urged the court to resolve the issue against the appellants and dismiss the appeal. From the record, the following facts are not disputed:- (a) The appellants were not in court when their counsel, ITODO Esq. sought the leave of the court to withdraw from the case. (b) That even though the application of learned counsel for the appellants was for withdrawal from the case, the court went on, ostensibly in granting the application, to strike out the suit of the appellants. (c) The appellants were never heard before the suit was struck out but the trial court ordered that notice of the striking out of the suit be served on the appellants. (d) At the time of striking out of the suit, there was no defence filed by the respondents to the suit but there was a pending motion on notice for extension of time within which to file a defence which incorporated a counter claim. (e) The said motion was not moved neither was it granted by the court as at 23/1/96. (f) After the striking out of the suit, the trial court, rather than adjourn the motion on notice or the purported counter claim for hearing to enable the appellants be present either in person or by counsel of their choice following the withdrawal of their original counsel in the matter, proceeded to hear the purported counter claim and entered judgment thereon in favour of the respondents on the ground that the appellants filed no defence to the counter claim.

The question is whether having regard to the facts and circumstances of this case, it can be said that the appellants were accorded fair hearing before judgment was so entered. I have no hesitation in answering the question in the negative. The proceedings of 23/1/96 speak volumes with regards to what a court ought not to do while holding the scale of justice between the parties before it. The proceedings are as follows:

“IN THE HIGH COURT OF JUSTICE OF BENUE STATE OF NIGERIA IN THE BENUE STATE JUDICIAL DIVISION HOLDEN AT OTUKPO SUIT NO. OHC/55/95 15 BEFORE HIS LORDSHIP: HON. JUSTICE E. EKO – JUDGE BETWEEN: OCLI OKO MEMORIAL FARMS & OR. – PLAINTIFF AND N.A.C.B. LTD. & OR. – DEFENDANTS 20 January 23,1996 Parties absent. S.O. Itodo Esq. for plaintiffs. P.A. Omengala Esq. for Defendants Itodo: My clients have ceased to further instruct me. I have made repeated attempts to get at the plaintiff personally and other forms of communications but I got no positive response. I humbly apply to withdraw as I doubt if I still command their confidence. Omengala: we do not oppose the withdrawal of the counsel, it shows that the plaintiffs were only interested in getting the interlocutory injunction and abandoning the substantive suit. Court: Mr Omengala is saying that the plaintiffs have abandoned you and the suit. Itodo: That is the position Court: Upon hearing both counsel it appears to me clear that the plaintiffs have abandoned the suit and their counsel after obtaining order for interlocutory injunction. When the suit is abandoned or the parties are indiligent one of the remedies for such is the striking out of the offensive or abandoned suit. 40 I believe Mr. ltdoo that he had made several abortive efforts to get his clients interested in the due prosecution of the suit, in the circumstances the suit is hereby struck out. This order shall forthwith be served on the plaintiffs. SGD. EkO JUDGE 23.1.96 Omengala: We have counter claim. No defence was filed to the counter claim which we claim N825,046.66 as at 30.9.95 and interest thereon at 13.5% P.A from 1.10.95 until the Judgment is satisfied. By order 27 Rule 2 (1) of this court, we are entitled to Judgment since there is no defence to the counter claim, we ask for the Judgment in the counter claim as per our statement of defence. Court: Mr. Itodo, what do you say? Itodo: I am out. JUDGMENT: In the counter claim the Defendants claim that the plaintiffs are/were indebted to the 1st Defendant in the sum of N825,046.66. That is the state of account as at 30.9.95. The Defendants also claim an order directing the plaintiffs to pay interest at 13.5% P.A from 1.10.95 until the judgment debt is fully and finally liquidated. There is no defence to the counter claim whereupon Mr. Omengala invoking order 27 Rule (D of the Rules of this Court to ask for judgment in the amount plus interest at 13.5% P.A from 1.10.95 until the N825,046.66 until same shall be fully and finally paid. Judgment is hereby entered in favour of the 1st Defendant for the sum of N825,046.66 plus interest at 13.5% per annum commencing from 1.10.95 until the judgment debt or part shall have been fully and finally paid. The judgment shall forthwith be served on the plaintiffs. SGD E. Eko Judge 23.1.95” (sic) Apart from the fact that the trial court failed to adjourn the counter claim for hearing with an order that fresh hearing notice be served on the appellants following the withdrawal of their counsel, there is also the disturbing fact that there was no legally cognizable counter-claim before the court as the motion on notice for extension of time to file a Statement of Defence which incorporated the counter claim was never moved nor granted by the court before judgment was entered for the respondents thereon. That apart, evidence on record discloses that no payment of filing fee was made by the respondents for the counter claim, granted that the motion was so moved and granted, in both situations no counter claim can, in law, be said to have existed to which the appellants could have legally filed a defence. Since the appellants had thirty days by the Rules of court to file a defence to the counter claim and since there is no record of the grant of the said motion on notice, it becomes impossible for the court to hold that the appellants had failed to file a statement of Defence to the counter claim prior to 23/1/96 when the judgment was entered as it is the duty of the respondents to prove that the appellants actually did not file their defence to the counter claim within the thirty days of the order granting the alleged extension of time to file the Defence and Counter Claim Even though it is the desire of all involved in the administration of justice to uphold the principle which states that justice delayed is justice denied, it is equally unacceptable to encourage or do injustice in an attempt at speedy dispensation of justice. Justice may be slow sometimes but it will surely arrive at its destination, in the instant case, the attempt at speedy trial has resulted in grave injustice to both parties particularly the appellants whose right to fair hearing had thereby been compromised by the court. A little patience and care by the learned trial judge would have saved time, energy and money if the court had but adjourned the purported counter claim and ordered hearing notice to be served on the appellants, particularly as their learned counsel had, with the leave of the court, withdrawn his further appearance for the appellants in the matter and their case struck out. I am not in anyway encouraging any acts of delay tactics from litigants. All that I am saying is that in the dispensation of justice to all and sundry, the rules of court are available to aid the court in balancing the scale of justice between the parties in respect of their contending claims. The intention of the Rules is to do justice by according the parties their right to fair hearing, not to deny same. I therefore find merit in the issue under consideration which is hereby resolved in favour of the appellants. In conclusion I find merit in the appeal which is hereby allowed with costs which I assess and fix at N50,000.00 in favour of the appellants.

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SC. 249/2001