Yinusa Rabiu V. Amuda Sunmonu & Anor (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal against the ruling of Lagos High Court delivered on 10th January 1985 by Fatiade J. The facts which gave rise to the said ruling are simply that the respondent as plaintiff, on 30th September, 1980 filed Writ of Summons claiming against the Appellant, the sum of Five Thousand Naira (N5,000.00), being the amount he spent in building a bungalow on the Appellant’s landed property situate at No.2 Raji Street, Ashogun Village, Ojo Lagos at the request of the Appellant sometimes between 1979 and 1980.

After the writ was filed and served on the Appellant on 17/10/1980, the Appellant did not appear. Thereafter, on 19/11/1980, a motion for judgment in default of appearance was served on the Appellant but he refused or failed to appear or file a defence to the suit.

On 6/1/81, the Appellant having been given further opportunity by the court to prove his case but failed, judgment was entered in his favour by the lower Court in the sum claimed by the Respondent/Plaintiff. Sequel to that, on 6th January, 1982 the movable properties of the Appellant were attached to settle the judgment debt and cost of execution and the Appellant signed inventory of the movable properties without any protest. However, the proceeds of the sale of the movable properties could not upset the judgment debt and the cost of execution, hence the Respondent applied and obtained leave to attach and sell the Appellant’s immovable property. Thereupon, the Appellant’s house situate at No.2 Raji Street, Ashogun Village, Ojo Lagos was sold to one Alhaji Sikiru Babatunde Subair at a public auction. The said Sikiru Babatunde Subair was later joined by leave of this Court as Co-Respondent in this appeal.

On 16/7/84, and 17/9/84, the Appellant filed two motions on notice at the lower Court for extension of time within which to set aside the judgment of the lower Court of 27/3/81 and for leave to set aside the said judgment and sale of the landed property of the Appellant respectively. On 8/3/85, the lower Court refused the application to set aside its judgment delivered on 8/3/85, and the application was accordingly dismissed. Aggrieved by and dissatisfied with the said ruling of 8/3/85 dismissing the two applications, the Appellant appealed to this Court. In his amended notice of appeal, the Appellant filed seven grounds of appeal and formulated five issues for determination as follows:

“1. Whether the learned trial Judge properly evaluated the affidavit evidence in respect of the motion to set aside the judgment dated 27/3/81 in view of the extraneous matters relied upon by the learned trial Judge in arriving at her decision?.

2. Whether the learned trial Judge was right in resolving the conflict in support of the application and the plaintiff’s counter-affidavit in respect of the evidence of the writ of summons without calling for oral evidence?.
3. Whether the learned trial Judge correctly applied the principles that are usually taken into consideration before a judgment can be set aside to the peculiar facts of the case?.
4. Whether the defendant’s case is manifestly unsupportable in view of the facts contained in the affidavit evidence before the court?.
5. Whether the learned trial Judge’s failure in taking into consideration the provisions of the Illiterate Protection Law and other rules concerning Illiterates generally resulted in her making certain perverse findings on her ruling of 8 March, 1985?”.

The Respondent formulated one issue for determination and one alternative issue for determination. Besides, he also raised a preliminary objection based on the grounds of appeal filed along with the notice of appeal by the Appellant. The two issues for determination are as follows:-

“(i) Whether there is a valid and competent appeal?.

Alternatively

(ii) Whether on the exercise of the discretionary power, the Court below was right on refusing or dismissing the appellant’s application to set aside its judgment and the sale of the appellants immovable property?”.

I have noticed that preliminary objection raised by the Respondent has been incorporated as the 1st issue for determination he formulated. Since the 1st issue covered the preliminary part, I shall deal with them together. Also, the 2nd alternative issue has been covered by the 1st, 3rd and 4th issues for determination formulated by the Appellant. The alternative issue for determination formulated by the Respondent and the 1st, 3rd and 4th issues for determination formulated by the Appellant being closely related can be conveniently taken together. I shall therefore deal with them after the issue of jurisdiction raised by the Respondent and then later deal with the 2nd and 5th issue formulated by the Appellant.

The Respondent in his notice of preliminary objection urged this Court to dismiss or strike out the appeal for want of jurisdiction. He submitted that, the original notice of appeal filed in this Court on 12/3/85, containing two grounds of appeal is incompetent since they are grounds of mixed law and facts; leave of the High Court ought to first of all be sought and obtained but such leave was not obtained. According to the learned Counsel, there was no compliance with the provision of sections 220 and 221 of the 1979 Constitution. The learned Counsel further argued that the amended notice of appeal containing the additional grounds of appeal is also incompetent on the same grounds.

The learned Counsel for the Respondent further argued that this appeal being that against the dismissal of an application to set aside judgment delivered in default of appearance is not an appeal against final judgment but an appeal on interlocutory matter. He therefore argued that the grounds being of mixed law and fact, leave must be obtained from the High Court or the Court of Appeal by virtue of the provisions of Section 221 (2) of the 1979 Constitution. Failure to obtain such leave is fatal and render the Appeal of the Appellant incompetent. Reliance was placed on the authorities of Yekini Onigbeden & Anor v. Shola Balogun & Anor (1975) All NLR (Pt.1) 233; Aminu Akindele Ajayi Ojora & Ors. v. Ajibola Odunsi (1964) NMLR 12.

In his reply to the preliminary objection, the Appellant has resolved the issue raised in the objection. The Learned Counsel for the Appellant resolved the issue of leave, and in my view, he had laid it to rest, when he confirmed to this Court in his reply to Respondent’s brief filed on 9/10/1994 that he sought and obtained from this court an extension of time to seek for leave to appeal against the ruling of the lower Court of 8/3/85 and leave to appeal against the said ruling. With the deeming order that the notice and grounds of appeal as having been properly filed and served, I think the preliminary objection can no longer be sustained, it is accordingly overruled.

I will now consider the 1st, 2nd, 3rd and 4 issues formulated for determination by the Appellant and the alternative issue raised by the Respondent. The learned Counsel for the Appellant submitted that the trial Court failed to properly evaluate the affidavit evidence placed before it. That it also believed and acted on evidence not exhibited before it. The learned Counsel further argued that the speculative finding of facts not based on the evidence before the court is perverse and has led to miscarriage of justice. He cited the cases of Ihewuezi v. Ekenya (1989) 1 NWLR (Pt.96) 239; Ogbechie v. Onochie (No.1) (1986) 2 NWLR (Pt.23) 484. The learned Appellant’s Counsel also submitted that the learned trial Judge failed to give adequate consideration to the defendant’s/appellant’s averment that he had no knowledge of the case due to non-service of the writ of summons and of court processes until his house was auctioned on 27/6/84. He argued that, when the Appellant argued that he was not served with court process, the denial by the Respondent is enough to raise some doubt on the issue of service and the doubt ought to have been resolved in the Appellant’s favour. He also denied that the Appellant was guilty of undue delay. It was further argued that if the judgment is set aside the respondent will not be embarrassed or prejudiced.

On the issue of whether the Appellant has supportable defence, it was argued on behalf of the Appellant that he has supportable defence as he has alleged that the agreement he purportedly signed was forged as he never entered into any such agreement. Hence, the judgment was obtained by fraud.

Generally, a court has power to set aside its judgment which it gave not on consent or not on the merit but which it gave in the absence of the defendant or in default of pleadings. This power to set aside such default judgment is discretionary and this discretion of course, must be exercised judiciously. Superior Courts of Record have, however, laid some guiding principles in plethora of decided cases as follows:-

(a) The reasons for the applicant’s failure to appear at the hearing or trial of the case which judgment was given in his absence;

(b) Whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party on whose favour the judgment subsists?;

(c) Whether the party in whose favour the judgment subsists would be prejudiced or embarrassed upon an order for rehearing of the suit being made so as to render such a course inequitable?;

(d) Whether the applicant’s case is manifestly unsupportable?; and

(e) Whether the applicant’s conduct throughout the proceedings, that is, from the service of the writ upon him to the date of judgment has been such as to make his application worthy of a sympathetic consideration?.

See the cases of Williams v. Hope Rising Voluntary Funds Society (1982) 12 SC 145; Ugwu v. Aba (1961) 1 All NLR 438; Doherty v. Doherty (1975) NMLR 144 at 145; Momoh v. Gulf Insurance Corporation (1975) 1 NNLR 184 at 184; Khawan v. Elias (1960) SCNLR 516 and Mohammed v. Hussieni (1998) 14 NWLR (Pt. 584) 108 at 130 paras D- G.It is clear from the submissions of the learned Counsel that his main reason why he wanted the judgment of the lower Court to be set aside was because he was not served with the writ of summons and other processes. His other reason is that there was fraud in that the alleged thumbprint on the affidavit of service was a forgery. On this the trial Court found thus:-

“From the records in this case file, there is record that the writ of summons filed on 30th September, 1980 was served on defendant/applicant on 17th October, 1980. He swore to an affidavit to that effect. That there is an affidavit of service of the motion for judgment on defendant as at 19th November, 1980. There were personal service on the defendant…”

On the issue of service which is the grievance of the appellant’s defence the trial court went further to say:-

“Plaintiff in discharging this burden swore to an affidavit in paragraphs 3 and 4 of which he claimed the defendant was served by a court bailiff in his presence both the writ of summons and motion for judgment while defendant is claiming not to be aware of the case he admitted he knew about it in January 1981, when the inventory of the goods were taken and the goods of course taken away. I have nothing in the defendant’s affidavit that he did anything about that”.

It is clear from these findings that there was apparent conflict between the affidavit of the Appellant and the Respondent’s counter-affidavit. On that premise, the Appellant argued that the trial Court ought to have called for oral evidence to resolve the conflict. I agree with the learned Counsel for the Appellant on this. It is trite law that where there is material conflict on crucial facts on the affidavits before the court, the court ought to resolve such conflicts by calling oral evidence. See Faluyi v. Oderinde (1987) 4 NWLR (Pt.64) 155; Atanda v. Olanrewaju (1988) 4 NWLR (Pt.89) 394. See also the record case of Momah v. Vab Petroleum Inc. (2000) 4 NWLR (Pt. 654) SC. 534. In the last case the Supreme Court held that:

“Where a matter is being tried on affidavit evidence and the court is confronted with conflicting or contradictory evidence relied on by the parties on material issue before the court, the court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve resolution of conflict”.

In this case, it is worthy of note that the Appellant’s Counsel applied to the trial Court to call for oral evidence but it was refused. Indeed, in its ruling the trial court picked and chose the evidence of the respondent/plaintiff. This is wrong since the issues in conflict are very material and important issue before it for resolution. Thus, having failed to resolve the conflicting evidence on the correct and proper manner the trial Court wrongly picked and chose the evidence of the respondent which has been seriously controverted. The decision reached by the trial court therefore became obviously perverse.

The issue No.5 formulated by the Appellant has to do with alleged illiteracy of the appellant. The Appellant is claiming that the trial Court failed to give consideration to the fact that he was an illiterate but instead made numerous assumptions in applying the law. The learned Counsel submitted that due to his illiteracy the Appellant could not understand the reason for the visit by bailiff and as such regarded the visit as an act of intimidation and harassment. It is clear that the trial Court found that it was the defendant/appellant who thumb printed the inventory which the Appellant denied knowledge of its existence completely. He also challenged the purported agreement and denied thumb printing same. I agree with the learned Counsel for the Appellant that this is also an area which can constitute a defence. It is equally a material fact which the trial Court ought to have considered by allowing the parties to call oral evidence for resolution of the conflict since the issue of thumb printing touches on the effect of the agreement on the appellant. The failure of the court to give consideration to the resolution of the conflict as required by law made the entire ruling of the court perversive. An appellate Court is always at liberty to interfere or disturb a finding or decision of a lower Court which is perverse.

On the whole, I feel the lower Court’s ruling delivered on 8/3/85 has to be disturbed by this Court. It is therefore, hereby set aside. I order that the motion on notice to set aside the judgment of the lower Court should be remitted to the High Court of Lagos for rehearing. The appeal is adjudged as meritorious. It therefore succeeds. I make no order on cost.

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Other Citations: (2000)LCN/0822(CA)

Tennyson Ajie & Ors V. Cyprian Ahunanya & Ors (2000)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A. 

The Appellants sued the Respondents in the High Court of Port Harcourt presided over by Odili, J., claiming 500,000.00 damages for trespass and seeking an order of perpetual injunction restraining them from further acts of trespass.

The Respondents counter-claimed in the sum of N22,500.00 as special damages for destroying the 1st Respondent’s property, N500,000.00 damages for trespass to the property of the 1st respondent situate at No. 26 Rumusele Street, Port Harcourt and perpetual injunction restraining the Appellants from further acts of trespass.

Some of the Appellants gave evidence that they were tenants in the disputed property when sometime in 1991 the 1st Respondent along with the other respondents came and forcefully removed their properties from the rooms they were occupying.
They testified that at the time of the removal of their properties they were not paying rents on the property to anybody. They were earlier paying rents to one Mr. J. O. Chikelue who put them in the property, but when they discovered that the property did not belong to him but to one Mr. Kenneth Ejiofor, they stopped paying rents to Mr. Chikelue.

The 1st Respondent and the other Respondents denied forcefully removing the properties of the Appellants from the disputed house. The 1st Respondent testified that he bought the property from Mr. Chikelue and was formally introduced to the tenants as the new landlord. All the tenants left except the Appellants who were reluctant to go. The 1st Respondent sometime in 1991 decided to carry out renovations on the property and that was what brought about this dispute.

The Appellants damaged some of the doors and refused to vacate the property. He was therefore suing for trespass and damage to his property. He tendered a deed of conveyance to show that he paid some money to buy the property.

The trial Judge dismissed the Appellants’ claim and granted the Respondents’ counter-claim. It is against that decision that the Appellants have appealed to this Court.

The learned Counsel for the Appellants filed a brief on their behalf and formulated one issue for determination as follows:-
“Whether the learned trial Judge was right in holding that the defendants/counter-claimants rather than the plaintiffs, proved a case of trespass and injunction?.”
The Respondents also filed a brief of argument and formulated one issue for determination as follows:
“Whether the learned trial Judge rightly found the plaintiffs/appellants to be trespassers?.”

The learned Counsel for the Appellants submitted in their brief that, the Appellants clearly proved acts of trespass against the Respondents who packed their properties out of their rooms without their consent and that the trial Court was wrong in dismissing their claim. They also argued that the 1st Respondent did not prove proper title to the property and was not entitled to judgment under his counter-claim.

In reply, the learned Counsel to the Respondent submitted that the 1st Respondent bought the property and was put in possession. He asked the Appellants to vacate but rather than do so they damaged the property. The learned Counsel argued that a tenant cannot question the proprietary right of his landlord.

The Appellants were paying rents to Mr. J. O. Chikelue who then sold the property to the 1st Respondent. They cannot challenge the proprietary right of the 1st Respondent. He relied on the case of Olurunkoje v. Rokosu & Anor. 20 NLR 118. The Appellants filed reply brief in answer to the Respondents’ brief. The substance of the argument in the reply brief was that the 1st Respondent failed to prove a better title to the property in dispute.

I have given very serious thoughts to the submissions of counsel on both sides and I have read the record of appeal scrupulously. It is beyond dispute that the Appellants were tenants in the disputed property and were paying rents to one Mr. J. O. Chikelue who sold the property to the 1st Respondent. According to the Appellant, they were paying rent to Mr Chikelue until they found out that the property belonged to one Kenneth Ejiofor.

Kenneth Ejiofor was not called by the Appellants to prove that he was the owner of the property and was interested in the action. The Appellants did not even know him. They claimed that he sent his agents to them but they did not call any of the agents as a witness. They did not call the name of any of the agents.

At the time of this action, the Appellants were not paying rents to anybody. It would appear that from the time they stopped paying rents on the property they ceased to be proper tenants in possession of the property. They were merely squatters on the property. They were not in possession to be entitled to sue in trespass.

There was evidence that the 1st Respondent bought the property from J. O. Chikelue. The deed of conveyance and power of attorney tendered by the 1st Respondent were not enough to prove title to the property but at least the deed of conveyance was evidence of purchase receipt which gave the 1st respondent equitable interest in the property. It follows therefore that as between the 1st Respondent who had an equitable interest on the property and the Appellants who were mere squatters, the 1st Respondent had a better claim to the property than the appellants and the trial Court was rights based on the evidence before it to dismiss the Appellants’ claim and grant the Respondents’ counter-claim.

It is trite law that a tenant cannot question the proprietary right of his landlord. In this case, the Appellants were not proper tenants but squatters. They have no business in challenging the proprietary right of the 1st Respondent. The only persons who can challenge the right of the 1st Respondent to the property are Mr. J. O. Chikelue or Mr. Kenneth Ejiofor and both of them are not parties to this suit. See the cases of Olorunkoje v. Rokosu & Anor. 20 NLR 118 and Alabi v. Adeniji (1962) 2 All NLR 47.

In the result, I see no merit in this appeal and I dismiss it and affirm the decision of the trial Court. The Appellants shall pay costs of N5,000.00 to the Respondents.

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Other Citations: (2000)LCN/0821(CA)

University of Agriculture Makurdi & Ors V. Onaja David Ogwuche & Ors (2000)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A. 

P

ursuant to the interim order granted by this court on 8/12/99 upon an ex parte application brought by the Applicants seeking to stay further proceedings and the judgment of the Court below in the Suit No. MHC/394m/98 then pending at the Makurdi High Court (hereinafter referred to as the “Court below”) the substantive application on notice was adjourned to 10/21/2000 for hearing.

This Court on 8/12/99 upon a motion ex parte supported by an affidavit sworn to by E.C.N. Hundu, Esq., made the following orders in this matter thus:

“(a) That interim order staying proceedings of the substantive matter at the Court below until the motion on notice is heard and determined by this Honourable Court is hereby granted.

(b) That an interlocutory order to stay any judgment delivered by the trial Court and execution of same pending the hearing and determination of appeal on the ruling of the trial Court dated 18/10/99 is hereby granted.

(c) That the substantive application on notice is hereby adjourned to 10/2/2000 as already scheduled.”

The substantive motion on notice was filed on the same date – 23/11/99 as the motion ex parte. On 17/1/2000, the applicant filed yet another motion on notice to effect an amendment to the motion on 23/11/99 by inserting therein a second prayer as was contained in the motion ex parte but inadvertently left out. The motion of 17/1/2000 – a non contentious motion – not being opposed by Mr. Okutepa of Counsel, it was granted as prayed and thus the motion of 23/11/99 was amended to encompass as the second relief in the following terms:

“An interlocutory order to stay any judgment that may be delivered by the trial Court and execution of same pending the hearing/determination of the appeal on the ruling of the trial Court dated 18/10/99.”

At the hearing of the substantive motion of 23/11/99 on 10/2/2000, Mr. Osuman of Counsel for the Applicants conceded that the first prayer in the motion has been overtaken by events. For what it is worth the abandoned prayer is set forth thus:

“An order to stay proceedings of the substantive matter pending the determination of the appeal against the ruling of the Honourable Court below dated 18/10/99.”

Having served on the Respondents’ Counsel the order of this Court of 8/12/99, a chain of reactions was set in motion. The Respondents on 13/12/99 filed a motion on notice in which they prayed for two reliefs as follows:

“(i) An order vacating the orders of this Honourable Court given ex parte on 8th day of December, 1999, in application No. CA/J/272m/99.

(ii) An order of interim injunction restraining the Respondents and their agents herein from refusing the Applicants herein entry to the University of Agriculture Makurdi pending the motion of the respondents herein fixed for 10/2/2000.”.

To put the record straight – on 10/2/2000, the first relief in the substantive motion of 23/11/99 was withdrawn as overtaken by the events that happened at the Court below – the suit No. MHC/394m/99 between the parties before the Court below had been concluded and judgment handed down. The 1st relief was struck out by this Court. Moving the amended motion for stay of execution Mr. Osuman of Counsel referred to the affidavit in support and 14 (fourteen) paragraphs and 5 (five) annexures marked Exhibits ‘A’ to ‘F’ sworn to by one E.C.H Hundu, Esq., a legal practitioner of the law firm of Osuman & Co. The crucial parts of the affidavit are produced as follows:

“(1) That I know as of fact that the Appellants/Applicants identified lapses contained in the Respondents processes filed on 10/9/99 whereof Appellants/Applicants filed a preliminary objection under protest.

(2) That the Honourable trial Court delivered ruling against the preliminary objection on 18/10/99. The ruling is Exhibited and marked Exhibit ‘A’.

(3) That I know as of fact that Appellants/Applicant filed a notice and grounds of appeal in this matter on 26/10/99.

(4) That the Notice and Grounds of appeal raise vital and substantial issues of law to be argued at the hearing of the appeal. The said Notice and Grounds of Appeal is Exhibited and marked as Exhibit ‘B’.

(5) That the appeal essentially alleged that this Honourable Trial Court lacks jurisdiction to listen to or consider evidence in view of some vital, basic and fundamental lapses in the respondents process dated 10/9/99.

(6) That these fundamental lapses remain the same as those that were identified and adumbrated upon before the honourable trial Court.

(7) That the Appellants/Applicants filed application for stay of proceedings pending appeal which application was heard by the trial Court on 9/11/99. The said application is annexed and marked Exhibit ‘C’.

(8) That the trial Court overruled the said application in paragraph 9 hereof on 19/11/99. The said ruling of the honourable trial Court is Exhibited and marked Exhibit ‘D’

(9) that the present application is neither vexatious, oppressive or an abuse on the process of this Court.

(10) That I am informed by E. Kureve, Registrar of the 1st Appellant/Applicant, in our office at 10 a.m on 17/11/99 and I verily believe him thus:

(a) That if the Applicants/Respondents are allowed to return and re-integrate into the University community without passing through the review structures stated in section 19 of the Federal Universities of Agriculture Act No. 48 of 1992; chaos of unprecedented dimension will occasion and a greater portion of the University Community will suffer.

(b) That on 15/11/99 and 16/11/99 the Applicants/respondents staged an illegal demonstration and barricaded the road leading to the 1st Appellant/Applicant and caused greater hardship and fear on Appellants/Applicants’ client’s and members of the public who use the road to visit and transact business with the Appellants/Applicants.

(c) That the Applicants/Respondents’ action in (b) was instigated by their leaders’ letter of 12/11/99 sent to the 2nd Appellant/Applicant. The said letter received by the 2nd Appellant/Applicant on 15/11/99 is exhibited and marked Exhibit ‘E’.

(d) That it was the timely intervention of the police, led by the Benue State Police Commissioner, that dislodged and prevented the Applicants/Respondents from causing further damages and injuries to members of Appellants/Applicants community. The Appellants/Applicants letter to the Police dated 17/11/99 is exhibited and marked Exhibit ‘F’.

(11) That the grant of this application will not prejudice the Applicants/Respondents and it is in the interest of administration of justice in Nigeria.”

The 5(five) exhibits put in extenso are i.e. Exhibit ‘A’ – the ruling of the Court below in suit No. MHC/394m/99 delivered on 18/10/99; Exhibit ‘B’ – the Notice and Grounds of Appeal against “the entire ruling particularly those parts of the ruling that decidedly overruled:

“(a) the objection that the suit not having been supported by an affidavit was incurably defective and therefore incompetent.

(b) the objection that there was absence of proper legal service afortiori the court lacked jurisdiction to adjudicate.

(c) the objection that the suit was premature and therefore not ripe for hearing.”

Exhibit ‘C’ is the Motion on Notice and Affidavit in Suit No. MHC/520m/99 between the parties for an order to stay proceedings of the substantive matter pending the determination of the appeal against the ruling. Exhibit ‘D’ is the ruling of the Court below overruling the application as in Exhibit ‘C’. Exhibit ‘E’ is the letter written from the office of the National Association of Nigerian Students (NANS) to the 2nd Applicant dated 2/11/99, and Exhibit ‘F’ is the Applicant’s letter to the Police dated 17/11/99. The details of Exhibit ‘A’ to ‘F’are very crucial in grasping the story of the Applicants’ case. Mr. Osuman has claimed that no counter-affidavit was filed and drew the Court’s attention to the implication. See Olisa Agbakoba v. Director of Security Service (1993) 7 NWLR (Pt.305) 353 at 365. To further strengthen his case, he adopted the reasons advanced for the ex parte motion and emphasised that if this application were not granted the ‘Res’ would be endangered if not destroyed and the appeal rendered nugatory. Having now referred to the counter-affidavit of 42 (forty-two) paragraphs filed on 17/1/2000 he urged the court to grant the relief.

Mr. Okutepa of Counsel referred to his counter-affidavit of 8 (eight) paragraphs filed on 1/12/2000 to which is exhibited the judgment of the Court below of 18/10/99 in Suit No. MHC/394m/99 and marked Exhibit 2 in his motion praying to vacate the Ex parte Order of 8/12/99. He has alleged that the application of 23/10/99 disclosed no facts amounting to exceptional circumstances to sustain the relief being sought and relied on the affidavits and further affidavits filed. He opined that there is no application to stay the substantive judgment of 1/12/99 as a serious omission and relied on Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 2 NWLR (Pt.77) 383 at 405 – 6 to urge this court to dismiss the application.

Replying on points of law Mr. Osuman cited the case of Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt.315) 1; (1993) II SCNJ 272.

In this application brought by the applicants and if I may refer to the crux of their relief “to stay any judgment that may be delivered by the trial Court and execution of same … ” the principles to guide this Court in the consideration of the matter are no longer beclouded as they have been expounded as recently as in the case of Martins v. Nicanner Food Co. Ltd. (1988) 2 NWLR (Pt.74) 75, (1988) 1 NSCC (Vol.19) 613; by the Supreme Court. See also Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S/C 77; (1972) All NLR 485.

Constrained by the peculiar wording of the relief sought in this application and coupled with the fact that the Notice and Grounds of Appeal exhibited to the affidavit herein appeared to relate to the ruling of 18/10/99 and not to the final decision of 1/12/99, the subject matter of this motion, I find it necessary to explore some of the pertinent principles before getting down to the main issues. This has to be so in view of the peculiar facts of this application. Stay of Execution in its connotation presupposes that there is a subsisting competent judgment to be stayed, as no court has the competence to stay a judgment that is yet to be given i.e. in future.

The grounding of stay of execution is coterminous with the pendency of an appeal and the Appellant has to apply for it; as it is not a matter as of right. Besides, it underscores the presence of a valid Notice of Appeal containing competent grounds in the matter: See Mobil Oil Ltd. v. Agadaigho (1988) 2 NWLR (Pt.77) 383 at 397. Hence, it is a foregone statement that an application for stay has to have a clear avowal as to the effect that an appeal has been so filed. The Notice and Grounds of Appeal are required to be exhibited to the Affidavit in Support of the application for stay. Again, it is trite that the judgment to be stayed has to be placed before the court. Usually, it is exhibited to the affidavit in support of the application for stay as the fact of the existence of the judgment to be stayed is a sine qua non to court entertaining the application. Where it is not exhibited the application is liable to be struck out for want of necessary materials for the application.

The law is now well settled that for a court to interfere with the judgment creditor’s rights to the fruits of his judgment, the judgment debtor has the onus to justify such intervention by showing exceptional circumstances. In this respect, the peculiar facts of the application as depicted in the affidavit in support are to be taken into account. Each case has as in this application to be examined on its peculiar facts. The grant of stay of execution as borne out by decided cases has to accord with reason and sound judicial principles inspite of the peculiar facts of the matter concerned. In this regard, three things must go into the consideration. The principles have been clearly distilled from the case of El-Khallil v. Oredein (1985) 3 NWLR (pt.12) 371 at 376, thus:

“(a) a stay of execution will not be granted if to grant it might deprive the winner in the Court below of the fruits of its victory: Barker v. Ladery (1885) 14 Q.B.D. 769 at 770;

(b) a stay of execution should not be refused if the effect of such refusal would render the appeal nugatory, if it should be eventually successful: Wilson v. Church (No.2) (1879) 12 Ch.D 454 at 457; and

(c) if the request for stay and the subject-matter of the appeal have the same subtratum so that the grant of the one would dispose of the other, the stay of execution should be granted: Metropolitan Real & General Properties Trust Ltd. v. Slater (1974) 1 All E.R. 310.”

See also Martins v. Nicanner Food Co. Ltd. (supra) and Vaswani Savalakh (supra). The primary question to be considered urgently in this application, as it appears to me, is the propriety or otherwise of the wording of the relief sought in the application i.e. the way it was couched. It is paramount in an application of this nature that there be in existence a competent judgment to be stayed. Normally, it is exhibited to the affidavit in support of the application. Its materiality in this application as in applications of this nature has been underlined by decided cases. By using the words ” … that may be delivered by the trial Court …” in framing of the relief sought – it has left no doubt that the judgment to be stayed had yet to be delivered by the date the application was filed. It was still a matter to happen in the future. This much is agreed between the parties and duly averred to in the affidavits. The idea of staying a judgment not yet in being as it were, is not only novel and unsustainable but totally strange to our jurisprudence. From the facts as averred in the counter-affidavit and which have remained unchallenged, the judgment in the substantive Suit No. MHC/394m/99 was delivered on 1/12/99. It is settled law that such a crucial material in the consideration of such an application as the instant one has to be exhibited. It wasn’t to be in this instance because the application for stay incontrovertibly preceded the judgment of 1/12/99. This is clear instance of putting the cart before the horse. To further compound the issue for the applicants, the Notice and Grounds of Appeal marked Exhibit ‘B’ in the supporting affidavit appears to be working at cross-purposes vis-a-vis the relief sought in the application – while the relief as per the motion was seeking to stay “any judgment that may be delivered by the trial Court” the grounds of appeal were specifically challenging the ruling of 18/10/99 with no nexus whatsoever to the substantive judgment being appealed against. This is a serious error. I have earlier on quoted an extract of the part of the decision of the lower Court complained of as contained in the notice of appeal, that is, as per Exhibit ‘B’. In the light of this confusion, with respect, this application has no basis. The two crucial materials i.e. the substantive judgment to be stayed and any evidence of the pendency of an appeal against it i.e. a competent notice of appeal to sustain the application are not in place. What is clear from the applicants’ affidavit and the Exhibits ‘A’ to ‘F’ is that at the time the application was filed i.e on 23/11/99 the judgment to be stayed, that is to say, in the substantive suit No. MHC/493m/99 then pending in the Court below had yet to be reached – being in future. It was given on 1/12/99. Surely, with respect, these facts however benevolently construed amount to no exceptional circumstance within the principles laid down in Martins v. Nicanner (supra). Furthermore, for this application to succeed, there has to be a competent Notice of Appeal; see Amadi v. Okoli (1977) 7 SC 57 at 58 per Idigbe, J.S.C. The instant Notice of Appeal has no bearing on this matter.

The Notice and Ground of Appeal being relied upon for the application relate to the ruling of 28/10/99 (which is not before this Court) and not the judgment of 1/12/99 (- the subject matter of this application). See Mobil Oil Ltd. v. Agadaigho (supra). The end result of my observations is that the Applicants have not placed before this Court any credible materials to ground the relief being sought.

The application is refused and is hereby dismissed. Coming to the motion of notice filed on 13/12/99 not having been moved the same is hereby struck out. Indeed, it was filed to restrain the applicants from preventing the students’ return to the University until the determination of the motion filed on 23/10/99. The Respondents filed a counter-affidavit of 42 paragraphs. This relief is clearly overtaken as the application of 23/10/99 has now been dismissed. In whatever manner one looked at the motion, the relief sought has fallen into desuetude. For the avoidance of doubt the application is also hereby struck out. In the circumstances of this matter, I make no order for costs.

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Other Citations: (2000)LCN/0820(CA)

Lawrence Okwueze V. Emmanuel Ejiofor (2000)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J. C. A. 

This is an interlocutory appeal against the ruling of Hon. Justice C. J. Okoli of the Onitsha Judicial Division of the Anambra State High Court, dated 8th July, 1996.

The Respondent in this appeal as plaintiff had commenced action in suit No. 0/414/83 against the Appellant who was the defendant. Subsequently, the trial Court on 11th January, 1984 obliged the Respondent an order of interlocutory injunction against the Appellant. This order was allegedly breached and Respondent accordingly started committal proceedings against the Appellant. This was on 5th February, 1996. Appellant raised preliminary objection as to the competence of the proceedings. The trial court overruled him. The appellant was dissatisfied with the ruling of the trial court. He now appeals against the ruling.

The four issues formulated by the appellant, as drawn from the grounds of appeal, for the deternination of the appeal are as follows:-

(1) Whether the learned trial Judge was right in failing to determine all the issues raised against the competency of the committal proceedings and was such determination not a pre-requisite to the hearing of the committal proceedings on the merit?.

(2) Whether the learned trial Judge was right in holding that the issuance of Form 48 was the responsibility of the Assistant Chief Registrar, High Court, Onitsha, and that the failure to endorse Form 48 on the order sought to be enforced was a mere irregularity?.

(3) Whether a copy of the order sought to be enforced stapled to the Form 48 in this case and served on the appellant was compliance or sufficient compliance with the Rules?.

(4) Whether the Appellant waived his right to object to the competency of the committal proceedings by his filing of a counter-affidavit against the said proceedings?.

The Respondent also conceived four issues for the determination of the appeal. These are:

1. Whether the learned trial Judge did not consider all the issues raised in the preliminary objection in coming to his decision?.
2. Whether the learned trial Judge was correct in holding that the issuance of Form 48 was the responsibility of the Assistant Chief Registrar of High Court, Onitsha and that the failure to endorse Form 48 on the order sought to be enforced was a mere administrative irregularity?.
3. Whether as in the instant case, a notice in Form 48 stated to be accompanied by an order of the court and Form 48 which omitted the word “Not” which appeared between the words “should” and “be” and which were proven duly issued and served on the appellant were in compliance or sufficient compliance with the relevant rules of court?.
4. Whether by filing a counter-affidavit in reaction to the application for his committal the appellant had thereby waived his right to object to the committal proceedings?.

Carefully considered, the one set of issues is subsumed in the other set. The set of issues formulated by the respondent are hereby preferred and adopted for the resolution of this appeal.

The appellant’s objection as to the competence of the committal proceedings initiated against him at the lower Court was based on three points.

These are:-

(i) “That the Form 48 issued and served on appellant was not in conformity with the Form 48 provided for under Order 9 rule 13(1) of the Judgment (Enforcement) Order, Cap. 118, Volume 7, Laws of the Anambra State

(ii) That the Form 48 issued and served on appellant equally offended Order 9 rule 13(2) of the same Cap. 118 volume 7 and

(iii) That the respondent as applicant failed to marry the provisions of Order 9 rule 13(1) and (2) of the Judgments (Enforcement) Rules with the provisions in Order 35 rules 1, 2, and 3(3) of the High Court rules 1988 in the committal proceedings.

Appellant relied on the following judicial authorities. Alhaji S. Oyeyinka v. Ahaji Yesufu Osagie (1994) 2 NWLR (Pt.328) 617 at 630 and Joseph A. Ojeme & Anor v. H. H. Momodu II (1995) 6 NWLR (Pt. 403) 583 at597 and 598.

The lower Court’s ruling in respect of appellants complaints are reflected at pages 18-20. The objection of the appellant was overruled in the following tenor:”

The issuance and service of form 48 is the duty and responsibility of the Registrar. It is not the function of the applicant, it is an administrative irregularity. It is also pertinent to note that the defendant/respondent had filed a counter-affidavit in the matter of the said committal proceedings and having taken a step in the said proceedings, they are deemed to have waived the said administrative irregularity: Eboh v. Akpotu (1968) NMLR 278; see also Obahemi v. Orisamo & Anor. (1967) NMLR 27. The preliminary objection is overruled. I shall proceed to hear the application for committal.”

Perhaps needless to state, the court in overruling the objection had agreed with respondent who as plaintiff had argued that there was substantial compliance with rules of court. The appellant having failed to act timeously would not be allowed to have the proceedings set-aside on the basis of a mere irregularity. It is also the view of the court that the irregularity had been waived.

Appellant has represented the same arguments before us under their first issue. He urged us to hold differently from the decision of the lower Court. It is contended that committal proceedings being criminal or quasi-criminal in nature, every procedural step therein must be strictly followed. The two forms issued and served on appellant had failed to comply strictly with the relevant rules of procedure. The failure was fatal and vitiated the proceedings. Appellant further cited the following cases Chief Daby Akpan & Ors v. Chief Effiong Akpan & Ors. (1996) 7 NWLR (Pt.462) 620 at 626 and High Chief Kingston Ebo Bonnie & Ors v. Samuel Moses Oyino Gold (1996) 8 NWLR (Pt. 465) 230 at 238.

Appellant contended that the decision of the lower court was perverse, it should be interfered with. The court had failed to determine the relevant issues necessary before deciding to hear the application for committal. An appellate court is entitled to so determine these issues. Counsel relied on: Chief Festus Yusuf v. Co-operative Bank Limited (1994) 7 NWLR (Pt. 359) 676 and Igbenogbodua Ogigie & Ors v. Omo N’Oba N’Edo: Akpolokpolo & Anor

Lastly under this issue, appellant further submitted that the lower court is

bound by this court’s decisions in Oyeyinka v. Osagie (Supra).

Appellant argued his 2nd and 3rd issues jointly. His counsel submitted that the respondent before us was the prosecutor in the committal proceedings. The Registrar who issued forms 48 and 49 was not the prosecutor. It is contended that in Akpan’s case, the Registrar who issued the copy of the order served on the respondent was not held responsible for the non-compliance with the rules of court. It was therefore wrong in the instant case for the trial court to have held differently. Since the respondent had not initiated the committal proceedings as required by law the appropriate decision of the lower court should have been to sustain appellant’s objection and to dismiss respondent’s application. This was commended by the decisions in Chief Eyo Ogboni & Ors v. Chief Oyah (1989) 1 NWLR (Pt.100) 725 at 734 and Gordon v. Gordon (1946) 1 All ER 247 at 250.

For his 4th issue appellant contended that none of the parties to the matter before the trial court raised the issue of waiver. The issue was never canvassed. The Judge made for the parties a case they never made for themselves. The mere filing of counter-affidavit was not sufficient to constitute a waiver of a party’s right to object. Appellant also submitted that the two cases relied upon by the trial Court i.e. Chief Okuma Ibe Eboh & Ors v. Oghotemi Akpotu (1968) NMLR 278 and Obafemi v. Orisamo & Ors (1967) NMLR 27 were all civil cases. They are quite inappropriate and inapplicable to proceedings of criminal or quasi-criminal nature. Appellant contended that his right to object cannot be said to have been waived on the basis of these decisions.

Appellant urged that the appeal, for the reasons so argued, be allowed. It does seem that respondent’s arguments in respect of his 1st, 2nd and 3rd issues for determination were made jointly.

Respondent argued that the trial Court did adequately consider the issues raised by the defendant’s/appellant’s objection before arriving at the decision it did at Pp.18-20 the Record of Appeal. In particular at p.19 lines 9-10 the court considered the effect of non-compliance with Order 9 rule 13(1) and (2) of the Judgments (Enforcement) Rules of the /Sheriffs and Civil Process Law Cap.118 applicable to Anambra State. Evidence abound, the respondent contended, showing that both the court order and forms 48 and 49 were served on the respondent.

It was on basis of this evidence that the court rightly held that the respondent remained at all material times to the proceedings, the applicant he was. The responsibility of issuing the court processes was that of the Registrar. Any lapse in the process of issuance of the court processes must be held to be that of the Registrar.

Respondent argued further that the trial Court in arriving at the decision had effectively married the provisions of Order 9 rule 13(1) and (2) of Cap. 118 with the provisions of Order 35 rules 1 and 2 of the Anambra State High Court Rules 1988. The ruling of the trial court, respondent submitted, was in keeping with all decided cases referred to by the appellant.

It must be emphasized, the respondent contended, that the import of the two rules of court was to ensure that the contemnor was given opportunity of being heard before the court dealt with him. The steps the respondent took, by the finding of the trial Court, had sufficiently given the appellant the required notice.

The counter-affidavit of the appellant, particularly paragraphs 4, 5, 6 and 7, was sequel to his awareness of respondent’s application. The awareness was by virtue of the service on appellant of forms 48 and 49 by the respondent. The appellant had the required notice. By the very cases appellant relied upon, respondent’s application was quite in order. All the authorities referred to by appellant cannot avail him in the view that all slips no matter how minor must vitiate the proceedings so ably commenced.

Respondent’s argument in respect of the 4th issue was brief and direct the Court was right to have considered the totality of the issues before it from the materials placed for its consideration. The Court rightly made its inferences from the counter-affidavit before it. With the deposition made therein by appellant, it was no longer possible to allow the appellant to resile from a position which facts had shown he was perfectly aware of. Even if the lapses in the issuance of forms 48 and 49 had constituted irregularities, the appellant’s conduct of filing his counter-affidavit did constitute an effective waiver. Respondent relied on Eboh & Ors v. Akpotu and Obafemi v. Orisamo & Anor. (supra) in support of this contention.

He urged us to affirm the decision of the trial court and to dismiss the appeal. It now must be answered what the effect of the slips in the issuance of forms 48 and 49 by the Registrar of the lower Court was. The appellant seems to urge us on the authorities of the cases he relied on that all slips, no matter how trivial and unrelated to the substance of the proceedings in relation to which the slip occurred, must be held to vitiate those proceedings. I am unable to read this view into the decision on the basis of which the submission was made.

I agree with appellant’s Counsel that proceedings for contempt being one that affect the liberty of a citizen, strict observance must be made to form and procedure. This has been the import of virtually all the decisions on the issue see Onagoruwa v. Adenye (1993) 5 NWLR (pt. 293) 317 at 349 CA; Alhaji S. O. Oyeyinka v. Yesufu Osagie (1994) 2 NWLR(Pt. 328) 617; Joseph A. Ojeme & Anor v. H. H. Momodu II (1995) 6 NWLR (pt. 403) 583.

It is however my considered view that not all instances of non-compliance with these forms and procedure will constitute a fundamental slip capable of overturning a decision arrived at inspite of the slip. Where as in the instant appeal the defects in both forms 48 and 49 are trifles and insignificant such slips cannot be held to be fundamental and incapable of being disregarded. See Mora v. Adeyeye (1990) 4 NWLR (Pt.142)76 at 87. The slips have not gone to the root of the proceedings. To allow these irregularities to forestall the proceedings would be to lean on the side of technicalities. This, an appellate court should refrain from. See Ogba v. State (1992) 2 NWLR (Pt. 222) 164 at 190 SC; Akpan v. State (1992) 6 NWLR (Pt.248) 439 at 471-172 and Adeniji v. State (1992) 4 NWLR (Pt.234) 248 CA.

In A. Y Ojikutu v. Francis E. Odeh (1954) 14 WACA 640 referred to and applied by the Supreme Court in Akpan v. State supra, an apt dictum of Thesiger L. J. in Collins v. Vestry of Paddington (1880) 5 QBD 368 at p.380 was quoted thus:-

“Blunders must take place from time to time and; it is unjust to hold that because a blunder…has been committed the party blundering is to incur penalty of not having the dispute between him and his adversary determined upon the merits”.

It is discernible from the decision in Ogba v. State and Akpan v. State Supra that even in criminal matters let alone quasi-criminal proceedings into which committal proceedings have been classified, it is far from the proper role of a court of law to uphold technicality at the expense of substantial justice.

In the instant case by virtue of Order 9 rule 13(1) and (2) of the Judgment (Enforcement) Rules Cap. 118 Laws of Eastern Nigeria 1963 applicable to Anambra State the authority to issue forms 48 and 49 lies in the Registrar of the court. For ease of reference the rule and sub rules are hereby reproduced.

13(1) “When an order enforceable by committal under section 71 of the law has been made, the registrar shall….on the application of the judgment creditor, issue a copy of the order endorsed with a notice in Form 48, and the copy so endorsed shall be served on the judgment debtor in like manner as a judgment summons.”

13(2) If the judgment debtor fails to obey the order, the registrar on application of the judgment creditor shall issue a notice inform 49 not less than two clear days after service of the endorsed copy of the order and tile notice shall be served on the judgment debtor in like manner as a judgment summons.”

(Italics supplied for emphasis).

By this rule and sub rules compliance is sought for the attainment of a specific goal. The issuance of the two forms, i.e. forms 48 and 49, by the registrar of trial Court is sustained desire to remind the person against whom the two forms were issued of two things. Firstly, that a court order exists which the party was commanded to obey, Secondly, by form 49 such a person is notified that proceedings to enforce the order of the court would therefore be commenced against him. That is the essence of the issuance of the two forms;

In the instant case that objective had been achieved inspite of the slips complained by the appellant. Not only was the appellant effectively reminded of the existence of the legitimate order of court which required his compliance, the fact that proceedings would be commenced against him because of his alleged continued disobedience of the same order had also been effectively communicated to the appellant. Indeed, it was on the basis of this communication that appellant filed his counter-affidavit and in paragraphs 4, 5, 6 and 7 denied being in contempt of the said court order. These denials were made inspite of the slips which appellant complained about.

It is well settled that a breach of rule of practice such as the slips which agitated the appellant can only render a proceeding irregular. Lapses in this realm do not render the proceedings a nullity. See Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 426 SC and Adebayo v. Shonowo (1969) 1 All NLR 176 at 190.

Furthermore, it is equally trite that where the non-compliance with the rules of practice was on the part of the court, the defect, as rightly held by the lower court, was merely administrative. It is incapable, just because of the fact of the lapse, of rendering the court process so issued or proceedings consequent upon same void. Thus where a party has done all that is required of him in law to commence an action, he cannot be held responsible for every other failure attributable to official ineptitude. See Alawode v. Semoh (1959) SCNLR 91 and Ogbuanyiya v. Okuda (No.2) (1990) 4 NWLR (Pt. 146) 551 at 570 to 571.

In Saude v. Abudllahi supra, it was also held that an applicant who had fulfilled his part of the procedural requirement had no bother where the judge or the court did not comply with the rules as prescribed.

The appellant had argued that going by the decision in Ojeme v. H. H. Momodu II and Oyeyinka v. Osagie (Supra), it did not matter whether the noncompliance was brought about by a court official or the applicant. The most important consideration by the courts had always been the fact that non-compliance had occurred. Once proved, proceedings are negated because of the slips.

The appellant, in my considered view, cannot be totally right. In the two cases Ojeme v. Momadu and Oyeyinka v. Osagie Supra the procedure adopted by the applicants completely ignored the provisions of Order 9 rule 13(1) and (2). Applicant therein, unlike in the instant case, did not apply for and forms 48 and 49 were infact not issued by the registrar. The issue before us is that these forms had been applied for but were incorrectly issued. I am confidentthatthe decisions in Ojeme v. Momodu and Oyeyinka v. Osagie would have been different if the two had ensued on the basis of the same facts as those in the instant appeal. I am unshaken in my view and I remain so because of Supreme Court’s decisions in Saude v. Abdullahi; Ogba v. State, and Akpan v. State supra; the statement of the law therein, the twin doctrines of precedent and stare decisis apart, is to me just, and therefore sound and correct.

For the avoidance of doubt let us relate the decision taken in respect of appellant’s first three issues to his actual complaints. These were the major ones:

(a) Regarding the issuance of Form 48, the words “In this order” were omitted from the words which constituted the issued form. Instead, the words “in the order accompanying this notice” were used in the form 48 purportedly served the appellant.

(b) as to form 49 that was issued and served on the appellant, he was “required to attend court to show cause why his committal should be made: By the actual form 49 that was envisaged by the rules of court, appellant was” required to attend court to show cause why his committal should NOT be made. In essence the word “not” was omitted in the issued form.

These were the lapses which the appellant argued were so fundamental. The slips were fatal to the proceedings and failure of the trial Court to so hold was perverse.

I have reasoned that this argument cannot be bought. By way of emphasis let me restate that appellant was not misled by the fact of the slips as to what the court required of him. The order of the court which he allegedly disobeyed was served on him. The caption, the sure title, of Form 49 effectively asked the appellant to proceed to court. What for? To explain why the order of court “which accompanied” form 48, word for word and which order the appellant allegedly disobeyed should not be enforced. It was in the committal proceedings subsequent to these preliminary steps that the actual merits of the case of the two sides would be heard. Appellant had just been dragged to court.

He knew why Justice had not been compromised because of the slips which appellant so vehemently stressed on.

Under the 4th and last issue appellant insisted that his act of filing a counter-affidavit to the applicant’s motion did not constitute a waiver on his part. I am afraid, that singular act of his, in its effect, must be held to have constituted a o waiver of the irregularity which appellant sought to rely on to vitiate the entire committal proceedings. It was by virtue of appellant’s deposition in this counter-affidavit that the court made some revealing inferences: that appellant had been asked through the court processes so irregularly issued to proceed to court; that the purpose of the command was for the appellant to explain why an order of the court he allegedly disobeyed should not be enforced.

It was therefore not correct, too, to assert that the issue of waiver was raised suo motu by the court below. As correctly submitted by the respondent’s counsel, the decision of the court must be based on the totality of the evidence made available to it. It is sheer fantasy to claim that appellant’s counter-affidavit was not part of this evidence which the trial court as a matter of law had to exploit.

In conclusion, whether or not the appellant would be allowed to exploit the slips in the issuance of the relevant forms depends largely on the existence of one fact and not the other. The most important question to answer is not whether the appellant had acted timeously. The right question to ask is whether the noncompliance had, no matter by whom committed, and at what stage of the proceedings the objection is raised, occasioned injustice to the appellant. The answer must be positive to upturn a decision.

In the case at hand, I have answered the question in the negative. In essence, the irregularity has continued for what it is for two reasons. Firstly appellant has not convinced us as to the injustice the irregularity occasioned. He failed to convince the court below. Secondly, irregular proceedings can only be set aside if the party affected acted timeously and before taking a fresh step since discovering the irregularity. See Saude v. Abdullahi supra; Noibi v. Fikolati (1987) 1 NWLR (Pt. 52) 619. Ezomo v. Oyakhire (1985) 1 NWLR (Pt.2) 195 and Ogbuayinya v. Okuda (No.2) supra. Appellant did not act timeously. He took a fresh step by filing his counter-affidavit after discovering the irregularity he sought to exploit. Finally, the effect of slips on proceedings in courts, it is surmised, invariably depends on what adjective laws in respect of such courts speak of them. Decisions which did not evolve squarely on our consideration of the slips in the light of those adjectival provisions, cannot be commended as ratios worthy of subsequent use. Cap. 118 of the Laws of the Eastern Nigeria 1963 does not by itself specify the effect of slips such as those the subject-matter of this appeal. The High Court Rules of Anambra State on the other hand seem to offer some hope. It appears the rules have specified the effect of these lapses. Order 26 rules 4(1)-(2) and 5 states:

4(1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceedings after becoming aware of the irregularity.

(2) Any application under the foregoing paragraph may be made by motion on notice, and the grounds of objection shall be stated in the notice of motion.

5. No proceedings in the court, and no process, order, ruling, judgment issued or made by the court shall thereafter be declared void solely by reason of any defect in procedure or writ or form, as prescribed by these rules; Rather every court shall decide all issues according to substantial justice without undue regard to technicalities.

The provisions are clear and unambiguous. We are bound by the plain words therein contained. See the Supreme Court decision in Udoh v. O.H.M.B. (1993) 7 NWLR (Pt. 304) 139 Okumagba v. Egbe (1965) 1 All NLR 62 and African Newspapers v. The Federal Republic of Nigeria (1985) 2 NWLR(Pt. 6) 137.

In fact a contrary application of the clear words would lead to absurdity. A court must dutifully refrain from giving absurd effect to statutes by the manner of its construction of same see Garba v. FCSC (1988) 1 NWLR (Pt.7) 499; and Kanada v Government Kaduna State (1986) 4 NWLR Pt. 35) and Salami v. Chairman LEDB (1989) 5 NWLR (pt. 123) 539.

By virtue of these provisions, a given procedural lapse must be considered on the peculiar facts of the proceedings it is claimed to have affected. It thus becomes a question of fact whether or not the particular lapse has occasioned injustice to make it a fundamental slip. If a complainant fails to prove the injustice caused him by virtue of the slip as in the instant case, the lapse is adjudged an irregularity no matter by whom caused. Appellant’s case becomes all the more hopeless where he had taken a fresh step in the face of a slip that had placed him at no disadvantage. The justice of the case at hand demand that we insist on our view.

The appellant’s objection at the Court below must have been raised pursuant to Order 26 rule 4(2). And there comes immediately after, an emphatic sub rule 5. It is the duty of an appellate court to exploit the provision of this sub rule to sustain the justice of the matter at hand.

It must be recalled that the committal proceedings sought to be initiated and which appellant objected to was commenced pursuant to two adjectival laws; the Anambra State High Court Rules and Cap. 118 of the Laws of Eastern Nigeria 1963.

Appellant, for all that I tried to say, cannot be obliged the indulgence he seeks. Like the three preceding issues for determination in this appeal, the fourth is also resolved in favour of the respondent Respondent’s committal proceedings having been commenced by the due process of law was competent It could be heard.

The grounds of appeal filed by appellant have failed. The appeal is accordingly dismissed. The decision of the lower Court is hereby affirmed. N3,000.00 cost ordered in favour of the respondent.

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Other Citations: (2000)LCN/0819(CA)

Felix Okoroike & Anor V. Lambert Igbokwe (2000)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A. 

The Appellants sued the Respondent in the Customary Court of Eziama Ikeduru seeking a declaration that they are entitled to the customary right of occupancy to a piece of land known as ‘Ala onu Nkoro’, trespass and injunction. The Appellants gave evidence and closed their case.

When it was the turn of the Respondent to open his defence, the learned Counsel for him wrote a letter to the court enclosing a photostat copy of an excuse duty certificate which placed him on bed rest for 21 days. He asked for an adjournment. The Respondent himself was not in court.

The learned Counsel for the Appellants opposed the application for adjournment and the court closed the case of the Respondent and gave judgment in favour of the appellants.

The respondent appealed to the Customary Court of Appeal, Imo State, and one of the grounds of appeal alleged that the respondent was not given fair hearing. The Customary Court of Appeal allowed the appeal only on the ground that the Respondent was not given fair hearing. It ordered a retrial before another Customary Court.

Dissatisfied with that decision, the Appellants have appealed to this Court and in accordance with the rules of court, the learned Counsel for them filed a brief of argument in which he identified two issues for determination as follows:

“1. Whether the Customary Court of Appeal Imo State sitting at Owerri was right in holding that the defendant/respondent was not given fair hearing in view of the surrounding circumstances of this case?.

2. Whether it was right for the Customary Court of Appeal Imo State sitting at Owerri to decide this appeal on one issue only when there were five issues argued at the hearing?”.

The Respondent also filed a brief of argument and identified the following two issues for determination.

“1. Whether the Imo State Customary Court of Appeal was wrong in holding that the respondent was not given fair hearing and order a re-trial of the case?.

2. Whether the Appellant suffered any injustice or miscarriage of justice by the order for a re-trial by the Customary Court of Appeal?”

The 2nd issue by the Respondent does not arise from any of the grounds of appeal. It is the cardinal principle of brief writing that an issue that does not arise from any of the grounds of appeal is not a proper issue and must be struck out. See the following cases: Guinness (Nig.) Ltd v. Agoma (1992) 7 NWLR (Pt. 256) 728 and A. G. Anambra State v. Eboh (1992) 1 NWLR (Pt. 218) 491. Accordingly, this issue by the respondent is hereby struck out.

By virtue of S.224(1) of the 1979 Constitution, an appeal shall lie from decisions of the Customary Court of Appeal of a State to the Court of Appeal as of right in any civil proceedings with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly. It is arguable whether or not issues raised in this appeal are questions of customary law.

The 2nd issue formulated by the Appellants as to whether or not it was right for the Customary Court of Appeal to decide the appeal on one issue only when they were five issues argued before it is certainly not a question of customary law.

I shall therefore not entertain it.

The 1st issue of fair hearing is not only a constitutional issue, it is also a principle of English Law as well as customary law. It is fundamental to any kind of hearing whether under English law or customary law. I shall therefore decide this appeal on this issue only.

The learned Counsel for the Appellants submitted that the Customary Court of Appeal was wrong in holding that the respondent was not given fair hearing by the trial Customary Court without considering the history of the case. He said that the Respondent consistently delayed the hearing of matter before the trial Court and the learned Counsel for him sent only a Photostat copy of sick leave certificate on the day the defence was open. He urged the court to hold that the respondent was given fair hearing by the trial Court. He relied on the case of Otapo v. Sunmonu (1987) 5 SCNJ 57; (1987) 2 NWLR (Pt. 58) 587.

The learned Counsel for the Respondent submitted that the Customary Court of Appeal was right in holding that the Respondent was not given fair hearing by the trial Court. He argued that the trial Court in spite of the application before it for an adjournment backed by medical report refused to grant an adjournment, closed the Respondent’s defence and gave judgment in favour of the Appellants without hearing the Respondent’s defence at all. This, in his submission, amounted to a denial of fair hearing. He too relied on the case of Otapo v. Sunmonu (supra).

The question of fair hearing is fundamental to the administration of justice in any civilized society. It is guaranteed in S. 36(1) of the 1999 Constitution which reads:

“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.

In the case of Akoh v.Abuh (1988) 3 NWLR (Pt. 85) 969, the Supreme Court expressed the view that the fair trial or fair hearing is a fundamental prerequisite for a just determination of disputes between parties.

The facts of this case are relatively simple. When the case came up before the trial Customary Court on the 6th of June, 1991, the Respondent and his counsel were not in court but there was an application in writing to the court with an excuse duty certificate for 21 days in respect of the Respondent’s counsel who was said to I be sick. The Appellants’ Counsel opposed the application for adjournment vehemently and the trial Court in a short ruling upheld the submission of the Appellants’ Counsel, closed the case of the Respondent and promptly adjourned the matter for judgment. The judgment was given on the 10th June, 1991 in favour of the Appellants.

The Customary Court of Appeal, Imo State set aside this judgment on the ground that the Respondent was not given a fair hearing.

Why was the trial Court so anxious to dispose of the matter when there was an application before it for an adjournment because of the sickness of the learned Counsel for the Respondent? Even if the trial Court felt that the learned Counsel was playing a trick, should it not have adjourned the matter so that the Respondent could be given a chance to secure the services of another counselor decide what to do with his defence? These are pertinent questions that call for an answer. The trial Court threw caution overboard and hurriedly closed the Respondent’s case, thus permanently shutting him out from a serious dispute involving land.

I agree entirely with the decision of the Customary Court of Appeal that the Respondent was not given a fair hearing. I therefore hold that that decision of the Customary Court of Appeal is right and I have no cause whatsoever to disturb it. Accordingly, I dismiss this appeal as unmeritorious and affirm the decision of the Customary Court of Appeal, Imo State. The Appellants shall pay costs of N5,000.00 to the Respondent.

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Other Citations: (2000)LCN/0818(CA)

Yusuf Babatunde Anisu V. Prince James Adeleke Osayomi & Ors (2000)

LawGlobal-Hub Lead Judgment Report

PATRICK IBE AMAIZU, J.C.A.

This is an appeal against the ruling of Ajayi, J., of the then Ondo High Court, sitting at Ijero-Ekiti Judicial Division. The ruling was delivered on the 13th day of December, 1994.

Briefly, the facts that gave rise to the appeal are as follows:-

The throne of Olosan of Osan-Ekiti was vacant. It appears there were two principal contestants to the throne, namely: Prince Adeleke Osayomi and Yusuf Babatunde Anisu. The then Ondo State Government in its wisdom recognised the selection of Yusuf Babatunde Anisu as the Olosan of Osan-Ekiti. The State Government went on to fix the 30th day of April 1994, as the day it would hand over the staff of office to Yusuf Babatunde Anisu.

The supporters of Prince Adeleke Osayomi were not happy with the recognition. They initiated proceedings in the High Court against the government and Yusuf Babatunde Anisu.

By a writ of summons dated 6th day of July, 1993, and filed on 8th day of July, 1993, they claimed seven reliefs against the Executive Governor of Ondo State, Yusuf Babatunde Anisu and others connected with the recognition. The reliefs they claimed include the following –

“6. An injunction restraining the 4th defendant from presenting himself to anyone for installation as the Olosan of Osan-Ekiti or performing the duties and or functions of the Olosan or wearing the regalia of the said Olosan of Osan Chieftaincy.

7. An injunction restraining the 1st – 3rd defendants, their agents, servants or their privies from giving any further recognition for the appointment of the 4th defendant as the Olosan of Osan-Ekiti”.

Prince James Adeleke Osayomi was the 1st Plaintiff in the suit, while the Executive Governor of Ekiti State and two of his functionaries were 1st, 2nd and 3rd Defendants respectively. Yusuf Babatunde Anisu was the 4th Defendant.

Before the suit was heard, the Plaintiffs brought an ex parte motion praying the court for an order restraining the Executive Governor of Ekiti State from presenting Yusuf Babatunde Anisu with the staff of office the date for which ceremony, as mentioned earlier was fixed for 30th April, 1994. The court granted the application on the 26th day of April, 1994. Thereafter, the Executive Governor, his functionaries and Yusuf Babatunde Anisu were served with the enrolled order. In defiance of the order, the Executive Governor through his functionaries handed over the staff of office to Yusuf Babatunde Anisu that day.

The Plaintiffs were enraged by the flagrant disobedience of the court order by the Executive Governor, his functionaries and Yusuf Babatunde Anisu. They brought a Motion on Notice for committal of the erring parties for contempt. This was in May, 1994. Before the motion was heard, the Attorney-General/Commissioner for Justice of Ekiti State intervened and the motion was abandoned. Unfortunately, Yusuf Babatunde Anisu continued to flout the order of the court. In order to put an end to the disobedience, the Plaintiffs brought a Motion on Notice dated 28th day of November, 1994.

It prayed the court for an order of interlocutory injunction restraining

“(1) The 4th Defendant/Respondent from parading/holding himself out as or performing the functions of Olosan of Osan-Ekiti.

(2) The 1st – 3rd Defendants/Respondents from recognising/dealing with the 4th Defendant/Respondent as Olosan of Osan-Ekiti pending the final determination of the substantive suit by this Honourable Court”.

The learned trial judge after hearing arguments on the motion, granted the application in the following terms –

“The 4th defendant/respondent is hereby restrained from parading himself or holding himself out or performing the functions of the Olosan of Osan-Ekiti and the 1st, 2nd, 3rd Defendants are hereby restrained from recognising the 4th defendant or dealing with him as the Olosan of Osan pending the determination of the substantive suit”.

The 4th Defendant was dissatisfied with the ruling. He has appealed to this court. Pursuant to the Rules of the Court, the learned counsel for the parties filed and exchanged briefs of argument. The Appellant filed in addition a reply brief. The briefs were adopted by the learned counsel at the hearing of the appeal.

It is to be mentioned that the learned counsel for the 1st – 3rd Respondents raised a preliminary objection in his brief. I consider it necessary to deal with it first. This is because if it is upheld, it will be a useless exercise considering the main appeal.

According to the learned counsel, for the 1st – 3rd Respondents, Olatunde Esq., this court granted the Appellants leave to appeal against the above ruling on the 2nd of December, 1997. On the 18th day of June, 1998, the lower court delivered a considered judgment in the substantive suit, in favour of the 1st – 3rd Respondents in this appeal. In the said judgment, all the reliefs sought by the 1st – 3rd Respondents, referred to above, were granted against the Appellant and 4th – 8th Respondents.

Following the said judgment, the 7th and 8th Respondents filed an appeal. He referred to the Notice of Appeal dated 22nd June, 1998. According to the learned counsel, the 4th and 5th Respondents in this appeal, also filed a Notice of Appeal dated 27th July, 1998.

It is the view of the learned counsel that in the light of this development, no useful purpose will be served in hearing this interlocutory appeal when the substantive case has been determined. He reminded the court that the interlocutory order which gave rise to this appeal was made pending the determination of the substantive suit. The conclusion of the substantive suit on 18th June, 1998, he submitted, removed the substance of the interlocutory order, and by extension the present appeal. He further submitted that as the substantive suit has been determined, the interlocutory injunction made on 13th day of December, 1994, elapsed with the decision. It is the learned counsel’s view that since the order has elapsed, any appeal based on the elapsed order becomes hypothetical or a mere academic exercise. He contended that a court should not entertain or determine hypothetical or academic questions. He cited the case of Princess Bilewu Oyewunmi & Ors. vs. Amos Owoade Ogunesan (1990) 3 N.W.L.R. (Pt.137) P.182.

Finally, the learned counsel contended that it is trite law that an interlocutory or interim order of a court remains extant only up to the time the substantive judgment is delivered. The interim order would therefore have become spent at the time the judgment was delivered. He relied on the following cases:

Emmanuel J. Iwuchukwu vs. Engineer David C. Nwizu & Or. (1994) 7 N.W.L.R. (Pt.357) P. 379 at 408.

Adefulu vs. Oyesile (1989) 12 SCNJ 44 at 69.

In reply to the above objection, Akeju Esq., of counsel, submitted that the authorities relied upon by the learned counsel for the 1st to 3rd Respondents in his preliminary objection are not relevant to the present appeal. It is his view that the authorities would have been relevant, if the present appeal would serve no useful purpose. The learned counsel emphasized the need for the present appeal to be heard in order to bring justice to the parties especially to the appellant.

The learned counsel then went into the history of the substantive case. How the Appellant, following the grant of an interlocutory injunction vacated the Palace of Olosan of Osan-Ekiti over two years before the final judgment was given on the 18th of June, 1988. The learned counsel referred to the maxim “Ubi jus, ibi remedium” (where there is a right there is a remedy). He then posed the question – whether there are features in this case that will prevent the appellant from having a remedy through this appeal? He answered the question in the negative. He observed that it is the duty of every court to ensure substantial justice to all manner of persons appearing before it. Finally, the learned counsel referred to the observation of Achike, JCA (as he then was) in the case of Dantata & Samoe Construction Co. Nig. Ltd. vs. Peter Egbe (1993) 4 NWLR (Pt.287) P. 235 at 345 that an appellate court cannot stand aloof and watch with insensitivity the legal rights of the parties being plunged into a quagmire. The learned counsel urged the court to hear the appeal on its merit.

Morakinyo Esq., of counsel, did not make any comment on the preliminary objection in his brief of argument.

It does seem to me that in order to fully appreciate the preliminary objection raised by Olatunde Esq., of counsel, one has to revisit the ruling of the lower court, the subject matter of appeal, and the relief sought by the 1st – 3rd Respondents which gave rise to the ruling.

The relief sought by the 1st – 3rd Respondents in the lower court was for –

“An Order of interlocutory injunction restraining –

(1) The 4th Defendant/Respondent from parading/holding himself out as or performing the functions of Olosan of Osan-Ekiti.

(2) The 1st – 3rd Defendants/Respondents from recognising/dealing with the 4th Defendant/Respondent as Olosan of Osan-Ekiti pending the final determination of the substantive suit by this Honourable Court”.

It is clear from the above that the application in the lower court was for an interlocutory injunction. One may then ask what does an interlocutory injunction mean, and what is its life span?

Nnaemeka-Agu, JSC (as he then was) answered the two questions in the case of Kotoye vs. Central Bank of Nigeria & Ors. (1989) 1 NSCC p. 238 at 250. He stated as follows –

“On the other hand, even though the word interlocutory comes from two latin words “Inter (meaning between or among) and “locutus” (meaning spoken) and strictly means an injunction granted after due contest inter parties, yet when used in contradistinction to ‘interim’ in relation to injunctions, it means an injunction not only ordered a full contest between the parties but also ordered to last until the determination of the main suit. Applications for interlocutory injunctions are properly made on notice to the other side to keep matters in status quo until the determination of the suit”.

In a more recent case of Obidiagwu Onyesoh vs. Nze Christopher Nnebedum & Ors. (1992) 3 NWLR (Pt.229) page 315, Karibi-Whyte, JSC, observed at page 336-

“The remedy by interlocutory injunction as its name implies is temporary. Being an equitable remedy it is also discretionary. Hence the central objective of the court granting an interlocutory injunction is to exercise its discretion to keep the parties in status quo pending the determination of the substantive action”.

My understanding of the above judgments is that an interlocutory injunction is an interim order which lasts till the suit on which it is predicated is disposed of.

The next question is, what is the nature of order made by the lower court following the application which is the subject of this appeal? The relevant ruling of the lower court reads as follows-

“The 4th Defendant/Respondent is hereby restrained from parading himself or holding himself out or performing the functions of the Olosan of Osan-Ekiti and the 1st, 2nd and 3rd defendants are hereby restrained from recognizing the 4th defendant or dealing with him as the Olosan of Osan-Ekiti pending the determination of the substantive suit.”

The above ruling is clear and unambiguous. The interlocutory order lasts “pending the determination of the substantive suit”. It is because of the life span of an interlocutory injunction that Uwais, JSC, (as he then was) delivering the lead judgment in the case of Emmanuel J. Iwuchukwu vs. Engineer David C. Nwizu & Ors. (1994) 7 NWLR (Pt. 357) p. 379 observed at page 408 as follows:

“Again the appeal by the Appellant which was against the interim order granted by Eigbedio, J. for stay of execution pending the determination by the Court of Appeal of the main appeal could have been pursued in that Court since the Applicant had filed a brief of argument. But the question is: What useful purpose would that have served? The interim stay of execution remained extant only up to the time the judgment of the Court of Appeal was delivered. So that if even it had been argued it would automatically have become spent at the time the judgment of the Court of Appeal was delivered”.

From the above decisions of the apex court, I entirely agree with the submission of Olatunde Esq, of counsel that-

“The interlocutory appeal ……… which was in respect of an order pending the determination of the case by the Federal High Court, could not have served any useful purpose since the trial by that court had in any event long been determined”.

I am not unaware of the sentiment expressed by the learned counsel for the appellant that the hearing of this appeal will clear way for doing justice to the parties especially to the appellant in this appeal. That may well be. But in the words of the apex court in the case of Board of Customs and Excise vs. Barau (1982) NSCC p. 358-

“The duty of this court, and indeed of all courts is to ascertain the law and give full effect to it. To allow the judgment of a court to be determined not from logical result of legal reasoning but by the possible consequence to an appellant, is to depart from the arena of precise law and wade into the muddy waters of political science”.

In sum, I find merit in the preliminary objection. It is upheld. The appeal is struck out. N3,000.00 costs are awarded to the 1st to 3rd Respondents.

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Other Citations: (2000)LCN/0817(CA)

Garkuwa Shugabandaruzu Zhitsu Sossa V. Ibrahim Alhassan Zhitsu Fokpo (2000)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A. 

The plaintiff, Ibrahim Alhassan Zhitsu Fikpo sued in a representative capacity of his people of Fokpo, Shugaba Ndaruzu Zhitsu Sossa for himself and on behalf of Sossa village community, before the Upper Area Court No. 1 Minna, Hon. Baba Audu Mohammed, for the following amended reliefs:-

“1. A declaration of title to a piece of land known and called Fokpo land lying and situated between Mambe and Gbade land to the east, Nku land to the South and Elogi land to the North and Lugwa land to the West, more particularly Fadama land of Batazi Zown, Checepan, Ekowasa, Chikangi and Zabe. And land farm of Ningi, Bayanbe and Lukuwugongu together with all fishing ponds thereon.

2. An order of injunction restraining the defendant, his agents, privies, servants or anybody from Sossa village (whether in Sossa or outside Sossa village) from cultivating, farming or dealing with the said Fokpo land in any way that will change the character of the said land and the ponds belonging to the plaintiff that are situated on the said land.
3. Claim for the sum of N15,000.00 for trespass”.

The defendant denied the plaintiff’s claim and also filed a counter-claim praying for the following reliefs:-

1. A declaration of title to all piece or parcel of land lying and situated between Sossa village and Fokpo village including but not limited to the following, Zhidogi, Eko-Nupegi, Kogigi, Aducita, Edinsagi, Gbogbo, Etieyi, Egbagi, Douchi Kpeba, Edinadara and Ekosa-Chigi.
2. The defendant also seeks a declaration of title to these ponds, Lufuchegi and Eyi.
3. N30,000.00 as general damages.

The plaintiff also denied the counter-claim and the matter as aforesaid commenced before the Upper Area Court Minna constituted by the above mentioned single Judge on the 30/5/994. At the trial, the plaintiff called four witnesses in proof of this case against the defendant. At the close of the plaintiff’s case, the trial Judge called the defendants to lead evidence. It must also be mentioned at this stage that the trial Judge visited the disputed land twice and come to the conclusion that the parties were fighting over the same land. In any event, when the plaintiff closed its case on 6/3/96, the case was adjourned for the defence to open on 2/4/96. On the application of the learned counsel for the defendant, the case was on the 2/4/96 further adjourned to 15/4/96. On the 15/4/96, the defence counsel sent a letter for adjournment and the matter was further adjourned to 15/5/96 for defence. On 15/5/96 the defence counsel was in court and asked for a further adjournment. The trial court granted the application but as the LAST ADJOURNMENT to 12/6/96. On the 12/6/96, the defence called one witness and at the instance of the defence, the matter was again adjourned to 17/6/96 for continuation of defence. On the 17/6/96, the defence counsel did not appear but sent a letter claiming that he was indisposed and despite the opposition by the plaintiff’s counsel, the matter was again adjourned to the 21/6/96 for continuation of defence. 21/6/96 was a Public Holiday, the case was adjourned for the defence for last time on the 24/6/96, in the presence of the defence counsel, the matter at his instance was again adjourned to 26/6/96. On the 26/6/96, the learned counsel for the defendant yet failed to appear and the court granted the last adjournment. The court adjourned the matter to the 28/6/96 for the defence. The court also warned that if the defence counsel or the defendant fails to appear, it would close the defence. On the 28/6/96 the defence failed to appear in court. It is also evident from the record that the defendant only appeared in court at the beginning of the trial. The matter was again adjourned to the 1/7/96. When again the defence counsel and the defendant failed to appear, the trial Judge then closed the defence. The plaintiff’s counsel addressed the court.

In his judgment delivered on the 8/7/96, the Upper Area Court granted declaration of title of the land in dispute to the plaintiff only. The court refused to give any damages for trespass. The defendants were further allowed to remain on the land as customary tenants without the payment of tribute, but the consent of the plaintiff must be sought for any other use of the land by the defendant. Both the defendant and the plaintiff felt aggrieved with the decision of the Upper Area Court and filed an appeal and cross-appeal on a number of grounds to the High Court of Niger State on its appellate jurisdiction. At the hearing of the appeals before it, learned counsel addressed the Court. But before the judgment was delivered one of the two Judges who heard the appeal died and the remaining Judge read the judgment of the court. In the judgment, the defendant’s appeal was dismissed and the plaintiff’s cross-appeal was partially successful. The High Court sitting on appeal varied the order of the trial Upper Area Court. It held thus:

” (cross-appellant) (i.e. the plaintiff’s) rights over the land is still superior and paramount, (the rights) should however be exercised in accordance with the native law and custom prevailing in the area that is, by allotment of land in return for tributes from the appellant/cross respondent (i.e. the defendant)”.

The defendant felt unhappy with the judgment of the High Court sitting on appeal and has with the leave of the High Court appealed to this court. The original notice of appeal contained three grounds of appeal. It was with the leave of this court that the defendant was granted to raise and argue additional grounds of appeal on fresh points which were not raised or decided by the trial court. Leave was also granted by this court to further amend the notice of appeal. Five grounds of appeal were filed in the further amended notice of appeal. It is noteworthy just to say in passing that Grounds 1 and 2 are complaining about the same matter. They both complained against the competency and the jurisdiction of a single Judge of the Upper Area Court to adjudicate on the matter. It is not the number of grounds filed that determines the success of an appeal but the substance. Repetition of complaints in the grounds is unnecessary. In any events, two issues for determination have been formulated and submitted to this court for determination. Now in this appeal, the defendant shall be referred to as the appellant while the plaintiff shall be referred to as the respondent. As clearly indicated, both parties in compliance with the rules of court have filed and exchanged briefs. The issues formulated by the appellant are:-

”1. Whether the respondent had proved a positive titled to the land in dispute.

2. Whether the lower court’s decision can be sustained in law and in view also of the trial court’s lack of jurisdiction and breach of the appellant’s right of fair hearing”.

Issue No.1

It is conceded that an appellate court should not ordinarily tamper with the concurrent finding of facts of two lower courts. However, it is submitted by the appellant’s counsel, the appellate court may do so where there are special circumstances. Learned counsel referred to the case of Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101 at 112. It is submitted that the respondent has failed to prove title to the land in dispute as enunciated by the case of Idundun & others v. Okumagba (1976) 9-10 SC 227 at 248; Uzochuwku v. Eri (1997) 7 SCNJ 1 (1997)7 NWLR (Pt. 514) 535; Ugbuokwelu v. Meanafunkwa (1994) 5 SCNJ 24; (1994) 4 NWLR (Pt.341) 676. It is submitted that the appellant did not prove title by reference to any of the five ways recognised in the above cases. It is further submitted that there was no dispute whatever that the appellant and his people are in possession of the land. The learned trial Judge and the respondent both agree, therefore, there is a presumption in favour of the appellant’s title to the land. It is also argued that the identity of the land the respondent claimed declaration was not specific vide (1995) 12 SCNJ 79; Ojiako v. Ewuru (1995) 9 NWLR (Pt.420) 460; Obawale v. Coker (1994) 18B LRCN 169 at 200 (1994) 5 NWLR (pt. 345)416.

It is submitted that the assessment of the evidence by the trial court was full of contradiction such as to the identity, name and size of the area and was inadequate for the grant of title. See Nwoke v. Okere (1994) 17 LRCN 123 at 139-140(1994) 5 NWLR (pt. 343) 159.

For the respondent, it is submitted that the evidence led by the respondents entitled them to a declaration. They adduced evidence from the communities they share common boundaries who testified as to their ownership of the identified land. That is, the land on which the appellant’s people are settled, the farmland cultivated by them and the ponds in which they fish. PW1 testified that the Sossa people are customary tenants of the respondent and that the Sossa people pay tributes to the respondents PW2, PW3 and PW4 all corroborated the testimony of PW1. DW1 who gave evidence in defence only heard from his grand father that the land belonged to Sossa people. It is submitted that the learned trial Judge properly appraised and evaluated the evidence before him, before he came to the conclusion that the respondent’s people were entitled to a grant of title.

It is submitted that on the balance of probabilities the respondents have proved their case. The complaints of the appellant are petty and trivial. There were no material contradictions as to create any doubt in the mind of the trial court.

It is now trite law, that an appellate court will not disturb concurrent findings of fact by the court below unless there is substantial error apparent on the record of proceedings. It is also misleading for a counsel to attack concurrent findings of facts in a ground of appeal (such as grounds 4 and 5 in the instant case) as ‘errors in law’. See Ibodo v. Enarofia (1980) 5/7 SC 42; Chinwemdu v. Mbamali (1980) 3/4 SC 31. Concurrent findings of fact by a trial court and an appeal court should not be disturbed by a further appellate court, where such findings are supported by evidence. Such findings may however be reversed by a further appellate court if there is some miscarriage of justice and violation of some principle of law or procedure. The violation of some principle of law or procedure must be such an erroneous proposition of the law that if that proposition be corrected the findings cannot stand.

The respondent gave evidence of traditional ownership of the land in dispute. They led evidence which the learned trial Judge accepted, that the respondents allowed the appellants to live on the land in dispute and pay tributes to the respondents of the fishing ponds and of economic trees. There is no doubt from the evidence adduced by the respondents that the appellants are in possession of part of the land in dispute. Possession is clearly the essence of customary tenancy, the fact that the appellants are in possession under customary law does not conclusively show that they are absolute owners of the land they possess. See Isiba v. Hanson (1967) 1 All NLR 8. Once it is established that a plaintiff owns the piece of land in dispute, the onus now shifts on the defendant to prove that he has a better title.

In the instant case, both sides claim to be owners of the land by settlement. Each of them therefore has the onus of establishing the facts by evidence. The respondents led evidence which is accepted by both the trial court and the High Court sitting on appeal, that the appellants are their customary tenants and they even pay tributes to the respondents on the fishing ponds and the economic trees. In my view, the respondents have discharged the burden placed upon them, while the appellant failed to adduce any evidence. I am in agreement with the two lower courts that on the evidence adduced, the discretion exercised in favour of respondents in granting them the declaration is fully justified. See Jules v. Ajani (1980) 5/7 SC 96. The respondents in my view have proved ownership by one of the ways stated in the Idundun’s case supra by traditional evidence. There is no apparent error in the findings, the alleged contradictions on the evidence led by the respondents are not material nor did they lead to any miscarriage of justice. There is no dispute as to the identity of the land in question and there was sufficient evidence that the appellants are the customary tenants of the respondent. These are all concurrent findings of fact of the two lower courts. There is nothing shown by the appellant to enable this court to disturb the findings. See John Andy Sons Co. Ltd v. N.C.R.I. (1997) 3 NWLR (Pt.491) 1, Amuda v. Adelodun (1997) NWLR (Pt.506) 480.

The identity of the land in dispute has never been in question, both parties have known the land, the trial court visited the land twice, the identity of the land under these circumstance needs no formal proof, even if the sketch map attached to the pleadings is discarded. See Akinlerinwa v. Oladunjoye (2000) 6 NWLR (pt.659) 92.

It has been held that when traditional history of ownership of land is established and is found to be cogent and not in serious conflict with that of the other side, when accepted by the court can support a claim for declaration of title to land. See Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177. In that case, it was held that evidence of traditional history is acceptable and admissible even if given by the members of the community or of the neighbouring community who share common boundary with the claimants.

Looking at the appellant’s complaints from all corners on the issue of proof appears to me to be a non-starter, which is why I have to resolve the first issue against the appellant.

Issue No.2

The learned counsel for the appellant submits that by virtue of S.4 (b) of the Area Court Law of Niger State, Upper Area Court can only be constituted if it had at least two Judges of that court sitting. The issue raises the competence or the jurisdiction of the court to adjudicate on the matter and is so fundamental that it can be raised at any stage and it is an issue that cannot be waived. See Ishola v. Ajiboye (1994) 19 LRCN 35 (1994) 6 NWLR (Pt. 352) 506. It is submitted that since the trial court had no jurisdiction, the High Court sitting on appeal acted in gross error to have affirmed the decision.

It is further submitted that the appellant was not given fair hearing on the matter, when his case was closed by trial court without serving on the appellant’s counsel hearing notice. The procedure adopted by the trial court was contrary to Order 9 rule 3(1), (2) and (3) of the Area Court Rules. Learned counsel referred to the case of Salu v. Egeibon (1994) 18B LRCH 241 (1994) 6 NWLR (pt.348) 23. It is further submitted that the trial court had failed to be properly guided by the rules of court in its discretion to refuse adjournment and close the case of the appellant. The decision was contrary to S.33 of the 1979 Constitution. This court is therefore urged to declare the trial a nullity and set aside the decision of the High Court affirming it.

For the respondent it is argued that the issue of jurisdiction should have been argued first since it would have ended the matter if dealt with at first. In fact, it is the first issue the respondent identified. It is submitted that the appellant relies on S.4(1) of the Area Courts Law Cap. 8 Laws of Niger State. But the learned counsel argued that the present law came into existence or force on the 10/10/95. See NSLN No. 14 of 1996. It is submitted that the Legal Notice is a subsidiary legislation. See section 74(1) of the Evidence Act Cap 112 LFN 1990 and hearing started in May 1995 which means that the suit was commenced and started before the coming into force of the legal notice on the 10/10/95. It is submitted that the position of the law before the coming into effect of the legal notice was the Area Court Edict of 1967 which provided for a single Upper Area Court.

It is submitted further that by the provisions of S. 6(1)(e) and 2 of the Interpretation Act Cap. 192 LFN, 1990 the repeal or amendment of law will not affect any legal proceedings already commenced and the proceedings may continue as if the enactment has not been amended or repealed. See Onyema v. Oputa (1987) 3 NWLR (pt. 60) 259.

On the question of denial of fair hearing, it is submitted that the record of proceedings reveal otherwise. It is submitted that in all, the appellant asked for ten adjournments to produce defence to the action and prove the counter-claim. The defence counsel was in court on the 8th adjournment the 24/6/96. He applied for adjournment and was granted adjournment to 26/6/96. He failed to turn up in court on the 26/6/96 but sent someone with a letter saying that he was indisposed. The matter was again adjourned. The appellant’s counsel had the duty to find out the next adjourned date. He did not, he failed to appear. It is finally submitted that the defence was given ample opportunity to produce evidence in defence of the respondent’s claim and proof of their counter-claim. The appellant’s counsel was warned on several occasions for delaying tactics by the trial court. It is submitted that the trial Judge had exercised his discretion judiciously and judicially in refusing further adjournment.

Now, there is doubt that by the Legal Notice No. 14 of 1996 published in December 1996, the Revised Edict of the Laws of Niger State 1989 came into force on the 10/10/95. The present suit was filed in 1994 and the hearing began before a single Judge before the commencement of the Revised Edition of the laws. Before the 10/10/95, the Upper Area Court in Niger State is constituted by a single Judge or a Judge with members. There is no dispute whatever that when the case was filed and commenced a single Judge had the competence and jurisdiction to adjudicate on the matter under the provisions of the Area Court Edict of 1967. It has been held that Area Courts are the products of statutory enactments. Therefore their composition, the limits or extent of their jurisdiction must of necessity involve the interpretation and the application of the enabling law or the instrument establishing them. See Wuyep v. Wuyep (1997) 10 NWLR (Pt. 523). Where a court has no jurisdiction to entertain a matter, the court cannot for any reason even if in the interest of justice assume jurisdiction. See Ajayi v. Mil. Adm. Ondo State (1997) 5 NWLR (Pt. 504) 237. A court is said to be competent to adjudicate on a matter when:

1. It is properly constituted as regards the number and qualifications of the members.
2. The subject matter of the case is within its jurisdiction.
3. The case comes before court initiated by due process of law.

See Adeigbe v. Kushimo (1965) 1 All NLR 248: Madukolu v. Nkemdilim 1 (1962) All NLR (Pt. 4) 587 (1962) 2 SCNLR 341. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is intrinsic to the adjudication. Clearly, if in the instant case the current law applied, the court then was not properly constituted and how well the trial was conducted it amounts to an exercise in futility.

The action was filed in 1994 and the trial commenced and the respondent as the plaintiff closed its case and thereafter the appellant began requesting for his numerous adjournments. Now what is the effect of the amendment of the law to the existing suit? It is now settled law that it is cannon of construction that the repeal or amendment of law does not affect any act or powers exercised under it before the repeal or amendment. This is also statutorily recognised in section 1(1)(b) of the Interpretation Act Cap. 112 LFN 1990. see Umeji v. A.G. Imo State (1995) 4 NWLR (Pt. 391) 552, Okafor v. Onianwa (1964) 1 All NLR 348. It is a fundamental rule of our jurisprudence that no statute shall be construed with retrospective effect unless the intention to do so is manifestly clear in the language of the statute. In the instant case, the intention of the retrospective operation of the amendment cannot be read in the revised Edition of the laws of Niger State.

The Supreme Court held that by virtue of Section 6(1) (b) of the Interpretation Act, the repeal of an enactment shall not affect the previous operation of the enactment. See Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668. The law applicable to a cause or matter and therefore the jurisdiction and competence of the court is determined by the existing law or the law prevailing at the time the suit was filed and not by the change of the existing law. It is immaterial that during the trial the law has been repealed. See Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292. On this point, I am of the firm view, that the amendment made on the composition of the court did not oust the competence of the single Upper Area Court Judge to continue and finish with the matter already filed before him. I see no merit on this complaint. The last point is the question whether in the trial before the Upper Area Court; there was a breach of fair hearing as guaranteed by the Constitution. The appellant maintained that he was not given a fair hearing in that when the matter was adjourned from the 28/6/96 to 1st day of July, 1996, he was not informed. I have above in this judgment comprehensively showed the conduct of the defence counsel and the appellant who did not even care to attend the trial. Now on the 26/6/96, the appellant’s counsel wrote to the court to adjourn the matter to a date convenient to the court. The court adjourned the matter to the 1st of July, despite the earlier statements and warnings of the court due to the persistent absence of the defence counsel and the appellant in court. The facts as narrated above did not fall foul with the provisions of Order 9 Rule 3 of the Area Court Rules as argued by the appellant’s counsel. In my view, an adjournment would amount to a breach of fair hearing against the respondent, if the learned trial Judge again adjourned the matter for the defence on 1st July, 1996. See Egwu v. Uniport (1995) 8 NWLR (Pt. 414) 419. There is no doubt that it is a basic principle of the law that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard and canvass the point he relies on before any adverse decision is taken against him with regard to such rights and obligations. If no such full opportunity is given, it could not be said that the trial was conducted fairly. See Obeta v. Okpe (1996) 9 NWLR (Pt. 473) 401. The question of whether any trial court should grant an application for adjournment on the application of either of the parties before the court is a matter within the exclusive discretion of the trial court and the exercise of such discretion should always depend on the circumstances of each case. The court when considering the application must decide on the competing issues of doing justice and of speedily determining issue before it. See Solanke v. Ajibola (1968) 1 All NLR 46, International Insurance Group Ltd. v. Alao (1990) 3 NWLR (Pt. 141) 773. In the instant case, the defence counsel simply failed to appear in court to defend the action after he was granted at his request of nine adjournments for one reason or the other. There is clearly an inexcusable delay amounting to an abuse of the process of the court on the part of the appellant before the trial court. The decision of the lower court to continue with the matter in absence of the defence counsel and the defendant under the circumstances of this case clearly, in my view, did not amount to breach of fair hearing. The appellant was given every opportunity to ventilate his defence and claims but he persistently refused to appear in court to take the opportunity given. The appellant clearly has himself to blame. See Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628. See also Shell Pet Dev. Co. (Nig) Ltd. v. Udi (1996) 6 NWLR (Pt. 455) 483. Applying the above principles, I am bound to resolve the second issue against the appellant. In the result, the appeal is doomed to fail and I accordingly dismiss it. I affirm the decision of the lower court which partially varied the decision of the trial court. The respondent is entitled to costs which I assess at N3,500.00 only.

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Other Citations: (2000)LCN/0816(CA)

Adeboanu Manufacturing Industries (Nigeria) Limited V. E. I. Adedeji & Anor (2000)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

Upon the death of the original plaintiff Alhaja Sidikatu Oshodi, the 2nd respondent (Olufemi Akiyode was substituted for her as the plaintiff. After some amendments of his pleading with the leave of the court, the plaintiff hereinafter referred to as the 2nd respondent claimed four reliefs at the Court below against the defendants (Adeboanu Manufacturing Industries Nigeria Limited and E. I. Adedeji) jointly and severally both of whom are hereinafter referred to the Appellant and the 1st Respondent respectively. The reliefs so claimed against the Appellant and the 1st Respondent jointly and severally in the Court below as per paragraph 20 of the further amended statement of claim are: –

(1) A declaration that the plaintiff is the person entitled to the issuance of a Certificate of Occupancy in respect of a piece or parcel of land lying, being and situate at Agindingbi village, Ikeja Division of Lagos State

(2) An order setting aside the Certificate of Occupancy No.10/10/1982J dated 18th of November, 1982 wrongfully granted to the first defendant by the Governor of Lagos State in respect of the land in dispute.

(3) N500.00 damages for trespass on the said land.

(4) An order for injunction retraining the defendants their servants, agents and/or privies from committing further acts of trespass on the said land.

The 2nd respondent led evidence in proof of the averments in his pleading by giving evidence personally and calling two witnesses. At the conclusion of the evidence of the plaintiff/2nd respondent, the case was adjourned on two occasions to enable the defendants react to the plaintiff’s case. When they failed to appear and neither was their counsel available, the Court took the final legal submissions of the court for the plaintiff/2nd respondent and thereafter adjourned for judgment on 28/2/97 on which day the Appellant brought an application “to arrest the judgment”. The application was filed on the day the judgment was to be delivered. Explaining the reason for the delay in filing the motion, Miss Odogun, learned Counsel for the defendants submitted that it was due to what she called inability to reach the court’s file; she prayed for a date to argue the application. Chief Pekun Martins, learned Counsel for the plaintiff/2nd respondent while alluding to the chequered history of the case, he urged the trial Judge to note that the defendants had voluntarily stayed away from defending the case since 1994. He admitted that counsel for the 1st defendant/appellant served him with summons for further directions on the morning of 28/2/97 – the date for the delivery of the judgment. He urged the trial Judge to ignore the application. In agreeing with the submissions of Chief Pekun Martins, the learned trial Judge (Olorunnimbe J.) observed inter alia:-

“This suit was filed in 1986. The 1st and 2nd defendants retained the firm of Solicitors – Messrs Wale Ajiboye & Co. who entered appearance for them Trial started on 4th October, 1994. The judgment is now about to be read… The motion is not before me now. Indeed, it has just been filed this morning. It is not correct as submitted by Miss. S. R. Odogun that they could not get the case file. On the 23/1/97, a counsel from Messrs Kayode Sofola & Co applied for and collected the certified true copies of the process file herein. I make bold to say that ‘arresting’ a judgment is unknown to our law. I am afraid I cannot accede to the request of Miss. Shakirat R. Odogun learned counsel for the applicants. The judgment shall be read, as it is hereby read”.

Consequently, the learned trial Judge proceeded to read the judgment on that day. The relief by the plaintiff were granted as prayed. Thereafter, the 1st defendant/appellant brought an application to set aside the said judgment and for an order staying the execution of same. After taking arguments of counsel, the Court below in a reserved ruling delivered on 1/8/97 dismissed the application. Being dissatisfied with the judgment delivered on 28/2/97, the 1st defendant/appellant entered a notice of appeal against it on 27/5/97 incorporating three grounds of appeal. Also, being dissatisfied with the ruling delivered on the 1st of August, 1997 the 1st defendant/appellant filed a notice of appeal against it with seven grounds incorporated. The notice of appeal was filed on 15/8/97. By order of this Court made on 10th April, 2000, the two appeals were consolidated distilled from two sets of grounds of appeal in the two notices of appeal are four issues which as contained in the Appellant’s brief of argument are as follows: –

(1) Whether the lower Court was right in proceeding to deliver judgment in the matter when an application that went to the root of the matter, to wit; the request by the defence to be let in defend was still outstanding to his knowledge?.

(2) Whether the lower Court was correct in not setting aside the judgment delivered in the matter in the circumstances of the case?

(3) Whether the parties to the suit were properly constituted bearing in mind the pleadings in the case when the Lagos State Government was not made a party to the suit?.

(4) Whether the lower court was right to have set aside the Certificate of Occupancy NO/51/51/1982J when no evidence had been adduced to impugn the irregularity of its issuance?.

The Respondent for their part raised two issues for determination and they, as contained in the Respondent’s amended brief of argument, are:

(1) Whether the learned trial Judge rightly and satisfactorily disposed of the oral application brought before him on the 28th February, 1997, and whether there was any motion for adjournment pending before him that day?.

(2) Whether the Respondent put enough materials before the learned trial Judge to justify an order setting aside his judgment …

When this appeal came before us on 10th April, 2000 Mr. Kayode Sofola, SAN learned Counsel for the Appellant, adopted the Appellant’s brief of argument filed on 19/1/2000, submitted that it was a grave error for the learned trial Judge to have refused to hear and determine the Appellant’s application before proceeding to deliver the judgment in the suit, he urged that the appeal be allowed. Chief Pekun Martins, learned Counsel for the Respondents argued that no application was pending before the court below prior to the delivery of the judgment now appealed against, and so, according to him, the issue of refusal of the Court below not taking the said application did not arise in this case, he finally urged that the appeal be dismissed.

I shall begin the consideration of this appeal by taking issue 1 on each of the Appellant and the Respondent’s respective briefs together. The grouse of the Appellant was that, by refusing to take its application before delivering judgment on 28/2/97 injustice was foisted on it, or the said application – summons for further directions filed on 28/2/97 – the 1st defendant/appellant prayed for the following:

(1) an order amending the name of the 1st defendant to read EKULO INDUSTRIAL LTD.

(2) an order striking out the name of the 2nd defendant

(3) an order joining the 2nd applicant as defendant herein.

(4) an order that hearing in this suit be commenced de-novo by recalling the plaintiff’s witness who have given evidence in this suit.

(5) an order that the applicants be given the opportunity to cross-examine the plaintiff’s witnesses.

(6) an order that the applicants be given the opportunity to produce their witnesses and given evidence and defend themselves in this matter in the interest of justice so that the real issues in controversy in the said suit between the parties.

The said summons for further directions was brought by (1) Ekulu Industries Limited and (2) E. C. Okonkwo as joint applicants. The application was filed on behalf of the applicants by the firm of Solicitors styled as Kayode Sofola’s Chambers, the present Counsel to the Appellant. Prior to the bringing of the application on behalf of the applicants by Kayode Sofola’s Chambers, the Counsel to the defendants was one Wale Ajiboye Esq. The summons was supported by an affidavit of urgency and the salient paragraphs of which 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 which I set our hereunder: – (3) That the land the subject-matter of this suit belongs to the 1st applicant herein whilst the 2nd applicant is the Chief Executive.

(4) That the 1st applicant was previously called Adeaboanu Manufacturing Industries (Nig) Ltd until the resolution to change its name to Ekulo Industries Limited on 6th October, 1991. Attached herewith and marked Exhibit A is the Certificate of Incorporation reflecting the facts.

(5) That soon thereafter there was a change in the composition of its Board of Directors under which the 2nd applicant herein became a director of the 1st applicant herein. Attached herewith and marked Exhibit B is a Certified True Copy of Form ‘CO7’ of the 1st applicant company.

(6) That the land the subject-matter of his suit belongs to Ekulu Industries (Nig.) Ltd the 1st applicant herein and is comprised in the Certificate of Statutory Right of Occupancy registered as No.1 0 at Page 10 in volume 1982 J dated 13/11/82.

(7) That it is in the interest of justice that the applicants herein be substituted and allowed to be joined as parties in this suit so that the controversy between the parties will be adequately and effectively adjudicated upon by this Honourable court.

(8) That the existence of the matter herein has just come to the knowledge of the applicants herein by virtue of a motion filed in suit No.ID/4014/96: Olufemi Akiyode v. Ekulo Industries Limited & An. Pending before Phillips J. in late November, 1996 which was instituted by the same Counsel acting for the same plaintiff in respect of the same property.

(9) That our firm was instructed to take necessary steps to protect the interest of the applicants herein.

(10) That an application was addressed to the Registrar of this Honourable Court, applying to reach the court’s file having paid the requisite fee which letter is before this Honourable Court.

(11) That I subsequently approached the Registrar of this Honourable court with the application to search but he informed me and I verily believe that the search cannot be conducted since the file is already with the Honourable Judge and a ruling or judgment is being written thereon.

(12) That it is necessary that this application be urgently determined lest 2nd defendant/applicant be confronted with a fait accompli.

(13) That I am informed by the said Kayode Sofola, SAN and I verily believe him, that evidence on behalf of the applicants herein which is necessary has not been placed before the court to enable it finally determine all the real questions in controversy in the suit and substantial justice between the parties.

(14) That I am further informed by the said Kayode Sofola, SAN and I verily believe him that the chances of defence of the applicants succeeding if properly put before the court are quite considerable.

The Appellants contended vigorously in its brief or argument that the application was pending before the Court below on the day the judgment was to be delivered. The trial Judge argued that the counsel to the Appellant, fell into a serious error of law by not allowing the application to be argued before pronouncing on it and that the delivery of the judgment by the Court below on 28/2/97 whilst the said application was pending and not moved by the counsel to the applicant was a travesty of justice he relied on a number of judicial decision the likes of Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909, Owena Bank v. Muhammed (1998) 1 NWLR (Pt. 533) 301, Okoro v. Okoro (1998) 3 NWLR (Pt. 540) 65 and Union Bank v. CFAO (1997) 11 NWLR (Pt. 527) 118. In opposition to the appeal the Respondents, through their brief, submitted that the application to the extent to which it prayed for an arrest of the judgment which was to be delivered on 28/2/97, it was unknown to law. The application they further argued was not before the court on the day the judgment was to be delivered, since as they submitted in their said brief, it is an abuse of court process to file a motion in the court Registry and seize it up, the motion they therefore argued does not exist in law. The reasons adduced by the learned trial Judge for not entertaining the application before delivering the judge postulate a judicious and judicial exercise of the court’s discretion.

In order to appreciate the crucial point argued here I shall preface its consideration with the facts leading to the delivery of the judgment without the applicants contesting the case put up by the plaintiff. Undoubtedly, the records of appeal are replete with series of adjournments of course with the defendants and their counsel being absent from court. On the 9th of January, 1997 when the Court below reconvened it was only the plaintiff and his counsel Chief Pekun Martins that were present in court. The learned Counsel later in the day gave his final address after which the case was adjourned for judgment on 28/2/97. On that day, the plaintiff was present but the defendants were absent from court, but Chief Pekun Martins learned counsel for the plaintiff/2nd respondent and Miss. S. R. Odogun, learned Counsel for the applicants were in court. The proceeding at the court on that day are terse and I shall hereunder reproduce some. Miss Odogun addressing the court said:

“I have an application to arrest the judgment. It was filed this morning 28/2/97 – which was necessitated by our inability to search the court’s file. In view of the application pending I crave your Lordship’s indulgence to allow submission on the merit. This application goes to the root of the matter. I want a date to hear the application” .

Chief Pekun Martins, learned Counsel for the plaintiff/2nd respondent in reply to the submission of Miss. Odogun said in the open court:

“The defendants on record have abandoned this case as far back as 1994. This morning my learned friend gave me these papers. It is headed summons for further directions. The counsel now are different from the counsel in the original action. I ask the court to ignore it. The applicant left the application until today”.

Miss. Odogun, in reply to the submission of Chief Pekun Martins said and I quote:

“Applicants are now owners of the 1st defendant/company”.

In his ruling on the submissions of both counsels the learned trial Judge reasoned and I quote him in extenso:

“This suit was filed in 1986. The 1st and 2nd defendants retained a firm of solicitors – Messrs Wale Ajiboye & Co. who entered appearance for them. Trial started on the 4th October, 1994. The judgment is now about to be read. Indeed, the judgment must be read with (sic) the Constitutional period laid down in section 258(1) of the 1979 Constitution. The “Motion is not before me now. Indeed it has just been filed this morning. It is not correct as submitted by Miss. S. R. Odogun that they could not get the case file. On the 23/1/97, a counsel from Messrs Kayode Sofola & Co. applied for and collected the certified true copies of the process filed herein. I make bold to say that ‘arresting’ judgment is unknown to out law. I am afraid I cannot accede to the request of Miss Shakirat R. Odogun, learned Counsel for the applicants. The judgment shall be read as it is hereby read.”

(Italicising mine)

From the proceedings of 28/2/97 before the learned trial Judge, I am in no doubt that the trial Judge, the Counsel for the plaintiff/1st respondent and of course the Counsel for the applicants were ad idem that as at that day and time (28/1/97), when judgment was to be delivered. Summons for further direction had been filed by the applicants in the court’s registry. Indeed, the counsel to the plaintiff/1st respondent admitted before the open court that a copy of same had been served on him that morning. It is axiomatic to say that the primary and indeed the only function of the court is to see to it that in all matters brought before it justice is not only done but it is seen to be transparently done. And, justice, it must be remembered, is not a one-way traffic. It is not for the plaintiff only nor is it an exclusive preserve of the defendant in the dispute. Again, it follows that justice is not even a two-way traffic. Indeed, it is a three-way traffic. It is justice for the plaintiff/victim (accuser) it is justice for the defendant/accused finally justice for the society at large – a society whose values and social norms have been pummeled by the acts complained of. Neither the word ‘justice’ nor the phrase ‘in the interest of justice’ capable of an objective definition in terms of multiplication of words. Perhaps, concept of justice is better explained in two Latin maxims viz audi alteram partem and nemo debet esse judex in propria causa. The first maxim simply translates into this golden rule that no one shall be condemned, punished or deprived of property in any judicial or quasi-judicial proceedings unless he has been heard or be seen to have been given all available opportunities to be heard. That has long been a received rule or one of the cardinal principles of natural justice. The second, which has not been questioned in the case at hand, directs that no one shall be a judge in his own cause. These are the twin pillars on which the concept of natural justice rests. When it is being questioned whether justice has been done in any particular case, a safe ground, for reason of difficulty of the term is to assert that justice has been according to law, for the law itself must of necessity include the procedure laid down for its attainment. To leave the attainment of justice to a free-for all pursuit and jettison the rule is to pave way for judicial high-handedness and the omnipotence of individual judges. The question that keeps up recurring in this case is whether the Appellant could be said to have been given all available opportunities of being heard before the final pronouncement of judgments? No doubt, as I have said above a number of adjournments, perhaps avoidable, had been granted in the course of the proceedings. However, a new dimension to the case offered itself for due consideration of the trial Court when the matter came up on 28/2/97. There was an application backed up by an affidavit of urgency where it was deposed that the name of the 1st applicant (now the appellant) had changed into another name; that the subject-matters of the suit belongs to the 1st applicant and not the appellant; that this fact came to light through an application filed in a suit between the plaintiff/2nd respondent. I pause here to say that in the absence of a counter-affidavit to debunk the depositions in the affidavit in support; and there is none, the applicants have sufficiently shown that they are necessary parties whose presence is crucial and fundamental to the resolution of the case before the court. See Peenok Inv. Ltd. v. Hotel Presidential Ltd (1983) NCLR 122, (1982) 12 S.C.1. In my view, to deny the applicants the opportunity of participating in the dispute is to deny them justice. An independent and impartial observer sitting in the court room and seised of the facts as set out above will leave the court room satisfied that injustice has been meted to the applicants if they are not allowed to join in the suit. The case would not have been heard and determined on its merits, if judgment were to be delivered in such circumstances as in the instant case. I venture to say that such judgment cannot but she said to have been hastily or hurriedly given and that in itself is denial of justice. See: Unongo v. Aper Aku & Ors (1982) 11 SC 129, (1983) 2 SCNLR 332. The application of the applicants as set out above did call for an adjournment – a great exercise of judicial discretion. Can it be said that faced with the welter of materials before it did the Court below exercise its discretion judiciously and judicially? A discretion that considers only one party’s right to justice is a discretion improperly and injudiciously exercised. A discretion that can be said to be properly exercised is one that takes account of the plaintiff’s claim to justice as well as the defendant’s claim to justice. In Walker v. Walker (1967) 1 AER 412 Sir Joselyn (president) in laying down guiding principles as to the exercise of such discretion said at page 414:

“First, where the refusal for an adjournment would result in a serious injustice to the party requesting the adjournment, the adjournment should be refused only if that is the only way that justice can be done to the other party, and secondly that, although the granting or refusal of an adjournment is a matter of discretion, if an appellate court is satisfied that the discretion has been exercised in such a way as would result in an injustice to one of the parties the appellate Court has both the power and the duty to review the exercise of the discretion”.

The above dictum was given judicial approval in Acka v. Akure (1987) 1 NWLR (Pt. 47) 74. As I have said above, the desire to dispense justice in all matters before it is the pre-occupation of any court of justice. It follows therefore that unless and until the Court has pronounced a judgment on the merits of the case or by the consent of the parties it is to have the power to revoke the expression of its coercive order. See Evans v. Bartlam (1937) 2 AER 646. In the instant case, judgment had not been delivered before the summons for further directions was brought before the Court below. The trial Judge even fell into a serious error by not allowing the application, which I am satisfied from the record of proceedings, he knew to be in existence to be moved and yet went ahead to rule on it. In Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 Belgore J.S.C deprecated such an approach when at pages 726-727 he said:

“It is clearly good sense to hold that failure of the judge to hear an application or motion properly placed before him is tantamount to a deliberate contrivance to frustrate the same. Be it noted that a judge has a duty to pronounce specifically on an application or issue properly sought or raised by the parties at the trial failure to decide one way or the other is a serious error”.

In an attempt to justify the stand, the learned trial Judge took in dealing with the summons the respondents through their brief argued that while application for an adjournment is known to law an arrest of judgment is foreign to law, they further reasoned that the trial Judge refused his judgment to be arrested because he would not want justice to be delayed and denied. I have had a second look at the summons, there is no where a prayer for the arrest of the judgment was made. It is to be noted that not every word used by a counsel in the course of making his submissions to court should be subjected to microscopic examination such that, the oral submissions will be allowed to supplant the prayers properly made on the application. Suffice it to say that, Counsel’s submissions must always be reviewed in the light of the prayers placed before the court. In the light of all I have said, I have to and I so answer issues I on each of the briefs of the appellant and the Respondents in the negative. Issue 1 in the Appellant’s brief is resolved in favour of the Appellant while issue 1 in the Respondents’ brief is resolved against them. Ordinarily, this should be the end of the appeal, but there is a duty under the law to attend to the other issues in the two briefs. On issue 2 raised for determination by the Appellant in its brief, I have said (supra) on the authority of Evans case (supra) that until a judgment is seen to have been pronounced upon on the merits of the case a court of justice as well as a court of equity reserves the right to set aside such judgment. The application to set it aside after its (judgment) delivery should have been granted. That issue is therefore answered in the negative, it is resolved in favour of the appellant. On issue 3 in the appellant’s brief, all I wish to say is that the rationale for making a person to be a party to an action is that he should be bound by the result of the action. From the pleadings particularly the second relief claimed, it is clear that the question to be settled in this action is one of which cannot be effectually and completely settled unless the Governor of Lagos State and/or the Attorney-General for Lagos State is made a party. Not to join either or both of them and to thereafter hand-down a judgment which will be binding on them is to deny them hearing in the case.

They (the Governor of Lagos State) by the judgment delivered on 28/2/97 were SC 301. Issue 4 of the appellant is accordingly answered in the negative and for similar reason. I also answer issue 4 in the appellant’s brief in the negative. Without going into the evidence before the Court below to see whether sufficient materials were placed before it I wish to say that issue 2 raised in the respondent’s brief of argument is answered in the affirmative. The trial Judge should have set aside the judgment.

In the result, the appeal is adjudged to be meritorious and it is accordingly allowed, the judgment of lower Court delivered on 28/2/97 by the court below is hereby set-aside. The case is hereby remitted to the Chief Judge of the Lagos State Judiciary for re-assignment by him to another Judge of the Lagos State High Court who shall hear and determine the suit de novo. The Appellant is entitled to the cost of this appeal which I assess in its favour at N4,000.00 against the Respondents.

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Other Citations: (2000)LCN/0815(CA)

Alhaja Morufa Disu V. Alhaja Silifat Ajilowura (2000)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A. 

The respondent, as plaintiff instituted an action at the Lagos State High Court in suit No. LD/1807/94 seeking for the following reliefs:

“(a) A declaration that the deed of gift dated 17th day of May, 1975, purportedly made between Tawakalitu Ajiun, Aminatu Abeke and Momodu Lawani Ishola is null and void and of no effect.
(b) a declaration that late Momodu Lawani Ishola (father of the 1st and 2nd defendants) had no legal or equitable interest/title in both No.48, Aroloya Street, Lagos and 60, Smith Street, Lagos.
(c) An order of perpetual injunction restraining the defendants (particularly the 1st and 2nd defendants) either by themselves, agents or privies from further interfering in any manner whatsoever and however with the rights of the plaintiff and her co-beneficiaries over the control and management of both 48, Aroloya Street, Lagos.
(d) An order directing the 3rd to 15th defendants to produce their last rent receipts to the plaintiff and her co-beneficiaries and to desist from further payment of rents to the 1st and 2nd defendants or to any person other than the plaintiff and her co-beneficiaries or their accredited agents.
(e) An order directing the 1st and 2nd defendants to render account of all rents collected from 48, Aroloya Street, Lagos from October, 1979 to October, 1989.
(f) An order directing the 1st and 2nd defendants to render account of all rents collected from 60, Smith Street, Lagos from October, 1979 to the date of judgment.”

These reliefs in the respondent writ of summons was followed by a 28 paragraphs statement of claim. On service on the defendants now the appellants with the above claim, instead of filling a statement of defence, their counsel filed an objection based on S.8 of the Administration of Estate Law, Cap. 2 Laws of Lagos State, 1973 (now 1994) and Order 22 rule 4 of the High Court Rules wherein they prayed for striking out of the plaintiff/respondent’s court processes. The respondent on the other hand filed a 6 – paragraphs counter-affidavit.

Hon. Justice F.A. Owobiyi took arguments in respect of the appellant’s preliminary objection and subsequently dismissed their objection in a considered ruling dated 13/5/99.

Dissatisfied and aggrieved with the ruling of the learned trial Judge, the appellants have appealed to this court upon 4 grounds of appeal.

In their brief of argument filed pursuant to the rules of this court, the appellants formulated the following two issues for the determination of this appeal, to wit:
“(a) Were the appellants obliged to file a statement of defence before complaining about the capacity of authority of the respondent to institute the action?
(b) Did the respondent have capacity to bring the action?

The respondent in her brief formulated two issues for the determination of this court as follows:
(a) “Has the defendant/appellant in raising his objection to the plaintiff’s case complied with the relevant rules of court i.e. Order 23 rules 2 and 3 of the High Court Rules relating to demurrer?
(b) Has the plaintiff established her locus standi in this suit.”

I shall be guided by the two issues formulated by the appellants. They are similar to the two issues raised by the respondent in her brief of argument.

However in considering, the first issue I will make reference to the relevant rules of High Court of Lagos State (Civil Procedure) Rules, which is Order 22 rule 4 1972, now Order 23 rule 1 of 1994 rules (hereinafter referred to as the “Rules”).

The Rules stated thus:
“Proceedings in LIEU OF DEMURRER
1. No demurrer shall be allowed.
2. No party shall be entitled to raise by his pleading any point of law, unless the court or a Judge in Chambers otherwise orders, any point so raised shall be disposed of by the Judge who tries the cause at or after trial.
3. If, in the opinion of the court or a Judge in Chambers, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim or reply therein, the court or a Judge may thereupon dismiss the action or make such other order therein as may be just.
4. The court or a Judge in Chambers may order any pleading to the struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court or a Judge in chambers may order the action to be stayed or dismissed or judgment to be entered as may be just. (italics mine for exphasis)
5. No action or proceedings shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether any consequential relief is or could be claimed, or not”

It is pursuant to this Order that the appellant moved the lower court to strike out the writ of summons, statement of claim and the plaintiff’s action for lack of jurisdiction. The grounds upon which this action motion was brought is that the respondent has “no right, capacity or title to institute the action. The appellants by their notice filed on 11/10/95 indicated that they would rely on Sections 8 and 10 of the Administration of Estates Law, Cap. 2, Laws of Lagos State, 1973, the aforesaid High Court Rules and the inherent jurisdiction of the court in support of their motion.

In support of their application the appellants filed a 5-paragraphs affidavit. In paragraph 4 of the affidavit deposed to on behalf of the appellants it was stated
“4 My perusal of the processes do not reveal the authority which enables to (sic) the plaintiff to institute this action”

In paragraph of the counter-affidavit deposed to on behalf of the respondent it was stated that:
“5 That I know that defendant (sic) have no defence to this action hence their delay tactics through vexatious objection.”

In dismissing the motion, the learned trial Judge found thus:
“The issue raised in the motion on notice is clearly and unambiguously one of law. And therefore clearly one of demurrer. Demurrer is no longer available to any party in Lagos State having been abolished by Order 23 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1994. It is premature at this stage for the defendants to raise an issue of law while they have not yet filed their statement of defence in which they are enjoined by law to raise that issue of law first before filing an application to set that down for hearing before trial. Having regard to all what I have stated in the foregoing the motion on notice filed by the defendants is incompetent. That being so the issue of locus standi of the plaintiff is not properly before the court the defendants having not filed a defence to this action yet.”

The appellant’s learned counsel submitted in their brief that the lower court was in error in the view it took that their application complaining of locus standi was a demurrer and that they ought to have filed a statement of defence. Referring further to the finding of the learned trial Judge at page 14 of the Record learned counsel for the appellants further submitted, that apart from the fact that it is settled law that the point of jurisdiction can be raised at any stage of proceedings their obligation as defendants in the lower court to answer to the plaintiff’s claim by filing a statement of defence would only arise on the assumption that the jurisdiction of the Court of Appeal had been properly invoked.

Further submissions have been made to the effect that if there was no jurisdiction in the court to entertain the plaintiff, any defence filed by the appellants would have amounted to a nullity, as would have any processes filed by the respondent. Having refused to make the assumption that the lower court had jurisdiction, the appellants submitted that they were entitled as they did to have applied by way of motion (without filing a defence) to have the question of the plaintiff’s competence to invoke the jurisdiction of the court tried and determined. Reliance was placed on a number of Supreme Court cases, notably, Akintola v. Solano (1986) All NLR 395 at 422 (1986) 2 NWLR (Pt.24) 598; Dada v. Ogunsanya (1992) 3 NWLR (Pt. 232) 754; Bambe & Ors. v. Alh. Yusuf Adetunji Aderinola & Ors. (1977) All NLR 5.

Order 23 rule 1 of the Lagos State High Court (Civil Procedure) Rules, 1994, and similar Rules of other State High Court have been given judicial interpretations by the Supreme Court and this court in a number of cases some of which will be considered in the course of this judgment.

Order 23 (formerly Order 22) is similar to Order 25 of the Rules of Supreme Court applicable in England in 1963. Order 23 not only abolished demurrer proceedings but substitutes a more summary procedure of getting rid of pleadings which show no reasonable cause of action. This being the case strict compliance with the procedure of the order ought to be observed. In Akintola v. Solano (supra) per Oputa JSC has this to say on the rule:
“It is high time our courts (and counsel for the plaintiff especially) began looking critically at the pleadings and where appropriate giving judgment on the pleadings if no triable issue of fact has been raised. There the plaintiff’s case should be considered on his pleadings and the applicable law. Where the plaintiff’s statement of claim does not disclose a cause of action that is where, even if all the allegations of fact therein averred are established yet still the plaintiff would not be entitled to the relief sought, there instead of filling a statement of defence, the defendant should move the court to have the case dismissed.”

The appellants have submitted that if all the facts alleged by the respondent in her statement of claim are established, the respondent would still not be competent to invoke the jurisdiction of the court as she would not be entitled to claim the reliefs she is seeking and they were therefore entitled to have applied by motion without filing a statement of defence to have the issue of the respondent’s competence tried.

The crucial question here is the applicable laws. There is no doubt that demurrer proceedings have been abolished in view of clear provisions of Order 23 rule (1) of the High Court (Civil Procedure) Rules of Lagos State. To my mind the applicable law under which a preliminary point of law can be raised is Order 23 rule 2. This is clear from the Supreme Court’s decision in Lasisi v. Attorney-General of Oyo State (1982) 1 All NLR(Pt.1) 24. When confronted with a similar situation it held thus:
“Order 22 rule 1 (now Order 23 Rule 1) of the High Court (Civil Procedure) Rules of Western Nigeria abolished “demurrer” and substituted Order 22 rule 2 under which a preliminary point of law (as done by the appellant in this case) could be raised after both the statement of claim and defence have been filed.”

It is clear that the appellant in the objection at the lower court came under Order 22 rule 4 (now Order 23 rule 4). This is so confirmed in the appellant’s brief of argument at page 2 paragraph 5 2.2. I agree with the submission of the learned counsel for the respondent in their brief that the relevant question, having regard to the nature of the appellant’s objection, based on absence of locus standi or jurisdiction is an issue of law. If so, have the appellants in coming under Order 22 rule 4, invoked the correct provision or the applicable law as held in Akintola v. Solano (supra).

I have set out Order 22 rule 4 above. Rule 4 related to absence of a reasonable cause of action or vexatious or frivolous actions not point of law. The question of locus standi is intertwined with concept of jurisdiction which to my mind, is a point of law: See Egbe v.Adefarasin (1987) 1 NWLR (No. 2)(Pt. 47) 1; Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) 257; Fetus Keyamo v. Lagos State House of Assembly & 40 Ors. (2000) 12 NWLR (Pt. 680) 196 at 217.

The Court of Appeal in the case of Otunba Adeniran Ogunsanya v. Chief Dada (1990) 6 NWLR (Pt.156) 347 at 360, when considering the question whether locus standi can be raised in a motion under Order 22 rule 4, Awogu JCA had this to say:
“The question here is whether locus standi can be raised in a motion under Order 22 rule 4, as appears to have been done in this case. Although, the appellant was said to have been heard in reply, was the issue of locus standi really before the trial Judge on a motion under Order 22 rule 4? I do not think so. Order 22 has five limbs. The first abolished demurrer, the second and third provide for points of law to be raised by pleadings and disposed of by the Judge, if successful. Under rules 2 and 3 therefore, an issue of locus standi or jurisdiction may be so raised and disposed of. They cannot however be so raised under rule 4, which deals with the striking out of a claim and pleadings where no reasonable cause of action or answer is disclosed, or where the action is shown to be frivolous, or vexatious. In other words, the issue of locus standi being a point of law to be disposed of before trial, was not before the trial Judge.”
The above judicial opinion was re-affirmed by the Supreme Court, when that case went on appeal (in Dada v. Ogunsanya (1992) 3 NWLR (Pt.232) 754 at 770-771. That court per Kawu J.S.C. held that:
“The issue of locus standi being a question of law cannot be raised in a motion under Order 22 rule 4 of the High Court of Lagos State (Civil Procedure) Rules as the said Order 22 rule 4 deals with the striking out of a claim and pleadings where no reasonable cause of action or answer is disclosed or where the action is shown to be frivolous or vexatious.”

Applying the above judicial decisions to the present one, it can be said that the learned trial Judge was right in dismissing the appellant’s preliminary objection as same clearly transgressed Order 22, rules 2 and 3.

The appellants in their brief made allusion to the legal principles in Bambe v. Aderinola (1977) 7 SC 1. This is a case in which the Supreme Court allowed a summary procedure as adopted herein after the trial court had rejected same as being a transgression of Order 22 rules 1-3. This is a case in which the Supreme Court has tacitly adopted its earlier decision in Imam Abubakri v. Abudu Smith (1973) All NLR 730.

I must say that this position taken in Bambe and Abubakri’s cases is opposite those in the latter cases of the Supreme Court on the subject-matter of demurrer. Placing side-by-side the principle or position taken by the Supreme Court in such cases as Bambe and Abubakri cases (supra) on the one hand and the case of Dada v. Ogunsanya (supra) which is much later and current case, I can see conflicting decisions which in principle ought to be resolved in favour of the Supreme Court later cases in Lasisi Fadare v. Attorney-General of Oyo State and Dada v. Ogunsanya (both supra).

Recent decision of Ibadan Division of this court in Akinade v. N.A.S.U. (1999) 2 NWLR (Pt. 592) 57 further buttressed the above conclusion. That court when faced with an apparent conflict between Bambe’s and Madu v. Ononuju (1986) 3 NWLR (pt.26) 23, my learned brother Okunola J.C.A. upheld the inviolability of Order 22 rules 2 and 3.
“I have considered the arguments of both learned counsel to the parties on this issue of jurisdiction vis-a-vis the records and the prevailing law. The arguments of both learned counsel to the parties can be narrowed down to whether the ratio in 1977 Bambe’s case and the later decisions based on them have the same ratio. To find out the ratio in both set of Supreme Court’s decisions it is necessary to summarise the decisions, particularly since Bambe’s case had been reviewed.”

The learned justice referred to Madu’s case (supra). In that case the Supreme Court while considering the wordings of Order 22 rules 2 of Lagos State High Court Rules held thus:
“It seems to me that having regard to this close look at the wording of Order 22 of rules 2 that it envisages a situation in which pleadings have been filed by both parties and issues joined. The issues can be disposed off by trial Judge at or after the trial.

In Lasisi Fadare’s case the Supreme Court similarly held as follows:-
Order 22 rule 1 of the (Civil Procedure) Rules of Western Nigeria abolished this procedure and substituted Order 22 rule 2 under which a preliminary point of law could be raised after the statement of claim and defence have been filed. Such an application may lead to the dismissal of the suit as happened in the instant case. If on the other hand it fails, the action will proceed to trial, issues have been already joined in the pleading.”

In the Ogun State University case (supra) on similar issues the Court of Appeal held unanimously:
“To allow the appellant to raise the objection to the competence of the court as herein desired before statement of defence is filed will be tantamount to reviving the extinct plead of demurrer which has been buried. Demurrer has been expressly abolished in Ogun State. The appellant’s application was in the nature of demurrer not permitted by the Ogun State High Court (Civil Procedure) Rules, 1987. I am therefore convinced that the learned counsel for the appellants was clearly in error in the procedure he has adopted. The court is bound by the decisions in Fadare and Ononuju cases referred to above.”

I have carefully reviewed these Supreme Court judgments to show clearly that the ratio in Bambe’s case is opposite those case of the Supreme Court decided in recent times. Whereas Bambe’s case dealt with where the defendant without having filed his statement of defence, brought an application under the rule to have the claim against him struck out, which application was granted, the latter decisions of the Supreme Court, on the other hand stood finally on the principle that Order 22 rule 1 of the High Court (Civil Procedure) Rules abolished the plea of demurer and substituted Order 22 rule 2 under which a preliminary point of law could be raised after the statement of claim and defence have been filed which application may lead to dismissal of the suit.

Although there is no provision in the rules governing precedents generally at the Court of Appeal but the principle of stare decisis, the Supreme Court has great respect for its previous decisions. It would depart from its previous decision whenever necessary in the interest of justice as it had done in the above case after Bambe’s case. With the two divergent set of judgment from the apex court it is necessary to consider which one should be followed. Bambe was decided in 1977; Fadare was decided in 1982; Onanuju was decided in 1986 while Ogun State University case was decided in 1991. The Court of Appeal is bound by its previous decisions save it will decide which of its two conflicting decisions it will follow. It is bound to refuse to follow a decision of its own which though not expressly overruled cannot, in its opinion, stand with a decision of the Supreme Court. No court is bound to follow a decision if it is satisfied that the decision is given per incuriam.

From the foregoing decisions, I hold that this court should follow the decisions of the Supreme Court in Fadare and Onanuju cases (supra) rather than the case of Bambe. In the same vein, the court is also bound by its previous decisions in Akinade, Ogun State University cases and the decision of Ibadan Division of Rasheed Adeoye v. Adekola Olayemi in the unreported appeal No. CA/1/67/95 dated 24/11/98 and the recent case of Adesanya v. Olayeni (1999) 2 NWLR (pt.592) 558.

The rules of court are meant to be observed, no matter the situation: See Co-operative and Commerce Bank (Nig.) Ltd v. Attorney-General Anambra State & Anor (1992) 8 NWLR (Pt. 261) 528; Dada v. Ogunsanya (Supra).

On the second issue, the appellant has contended that the plaintiff had failed to prove or establish their locus in the action. I have carefully perused through prayers 1-4 of the respondent’s reliefs as contained in the writ of summons and paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and particularly, paragraph 14 of the statement of claim. To my mind, the respondent has established not only her source of title, but also her capacity and locus standi.

The case of the respondent in the lower court was that she was the great grand child of the original owner and that her grandmother was one of the children of the original owner who made the will.

The case of the appellants was that the respondent had not pleaded any proprietary right or interest (in the properties at 48, Smith Street, Lagos, which belonged to late Disu Dada. It is the appellant’s contention that as long as the respondent by her own showing admitted that the original owner of the properties made a will she could not invoke the jurisdiction of the court without pleading legal title to the properties either as executrix under the will or a devisee in whom the properties has become vested.

For any statement of claim to be struck out for non-disclosure of a cause of action, care ought to be taken so that the party affected may not be deprived of his right to a plenary trial. It is only where pleading is obviously incontestably bad or is ex-facie unsustainable or where it is unarguable that it will be struck out. See Ibrahim v. Osim (1988) 3 NWLR (Pt.82) 207; Mills v. Awoonor Renner (1940) 6 WACA 144.

There is no doubt that as far as the respondent was concerned and as established in paragraphs 3 -4 of her statement of claim, she has disclosed a reasonable cause of action.

The respondent as an individual member of late Disu Dada’s family can sue to protect her interest in the family and the family property. See Haladu Dadi v. Garba (1995) 8 NWLR (Pt.411) 12 at 14 (ratio 5); and Ugwu v. Agbo (1977) SC 27 at 40.

In view of the foregoing, this appeal is dismissed. The ruling of the learned trial Judge is hereby affirmed. The case is remitted to the Chief Judge of Lagos State, High Court to be re-assigned to another Judge for hearing and determination. There shall be costs which I assess at N5, 000 in favour of the respondent.

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Other Citations: (2000)LCN/0814(CA)

Festus Evbuomwan V. Bendel Insurance Co. Plc (2000)

LawGlobal-Hub Lead Judgment Report

AKINTAN,  J.C.A.

This is an appeal against the ruling delivered by Edokpayi J. on 18th December, 1995, sitting at Benin High Court in suit No. B/112/94. The appellant, Festus Evbuomwan was the plaintiff while the respondent, Bendel Insurance Plc., was the defendant in the action. The plaintiff’s claim against the defendant in the case was for “N350,000 being amount due to the plaintiff under a friendly loan granted to Isaac Oviasu (now deceased) as per an agreement made in Benin City on 31st day of December, 1991 and which said sum was repayable on or before the 30th May, 1992. The defendant undertook to guarantee payment of the said sum in default by Mr. Oviasu. The principal debtor could not pay before his untimely death. The plaintiff also claimed interest thereon at the rate of 20% per annum from 31st May, 1992 until judgment and thereafter at 10% per annum until the total sum is liquidated. The action was filed on 17th February, 1994.

The plaintiff contended that the respondent was served with the writ but failed to enter appearance. The plaintiff thereafter on 15th August, 1994 filed his statement of claim and this was followed by a motion for judgment. Both the statement of claim and the motion for judgment were also said to have been served on the defendant. The motion for judgment was thereafter listed for hearing before Omaje, J. sitting at a Benin High Court. The defendant was absent on the day the motion came up for hearing and it was not represented by any counsel. The plaintiff however gave evidence in support of his claim and in line with his pleadings. A witness, Paul Zaye, a bailiff at Benin High Court, gave evidence for the plaintiff. He told the court, inter alia, that on 17/5/95 he served the motion on notice on the Managing Director at the company’s registered office at the Sapele Road office of the company. The learned trial Judge there and then on 29/5/95 entered judgment for the plaintiff in the sum, of N350,000 with interest thereon at the rate of 12% from 4/6/92 up to the date of judgment on 29/5/95.

The plaintiff’s next action was that he applied ex parte for a garnishee order nisi attaching the defendant’s monies with the First Bank of Nigeria Plc. King’s Square branch, Benin City. The application was taken and granted. It was then served on the defendant and its said bankers. The defendant reacted by filing a motion on notice in which it prayed the court for extension of time within which it could apply to set aside the judgment and the garnishee order and an order setting aside the said judgment and the garnishee order. The motion was supported by a 17 paragraph affidavit deposed to by Robinson Abiyere, an Assistant Manager in charge of legal matters with the defendant company. The deponent denied in the affidavit that the defendant was ever served with any of the processes as claimed by the plaintiff. He further disclosed that as at the time of the purported service of the documents, the offices of the company were deserted due to a strike action embarked upon by the entire staff of the company.

The motion was opposed by the plaintiff and to that end, an 18 paragraph counter-affidavit was deposed to and filed by his counsel, Olugbemi Adisa. The deponent denied that the company’s premises were deserted as claimed in the affidavit in support. He then maintained that the defendant was duly served with all the processes in the case as claimed by the plaintiff.

The motion thereafter came up for hearing before Edokpayi J. When hearing in the matter started on 12/12/95, Mr. Itua, learned counsel for the applicant (now respondent) moved the motion and concluded his address on that day. Mr. Osaze-Uzzi, learned counsel for the respondent (now appellant) started his reply.

He was, however, yet to complete his address when further hearing in the matter was adjourned to 14/12/95 by the learned Judge. The applicant, however, filed a 20 paragraph further and better affidavit deposed to by the same Robinson Abiyere in support of the motion. Paragraphs 6 to 18 of the further affidavit adequately set out the appellant’s reason for the further affidavit as well as its case. The paragraphs read as follows:

“6. That on 11/9/93 I deposed to an affidavit in support of the defendant/judgment/debtor/applicant’s application to set aside the judgment dated 29/5/95 and garnishee order dated 30/3/95.

7. That after carefully going through the applicant’s file in this case with Yakubu Itua Esq. the applicant’s solicitor in this case I discovered that paragraphs 3 and 11 of my affidavit dated 11/9/95 are not correct as it is in another matter that Yakubu Itua Esq. filed a memorandum of appearance on 17/9/95.
8. That the truth of the matter is that the applicant did not brief any counsel in this suit as it did not receive court processes in this case.
9. That paragraphs 3 and 11 of my affidavit of 11/9/95 were made inadvertently without any intention to deceive this Honourable Court.
10. That the attention of the applicant was drawn to suit No. B/112/94 for the first time in September, 1995 when the applicant received the garnishee order. Exhibited as Exhibit A in my affidavit of 11/9/95.
11. That the fact of this case was that on 17/12/91 Late Isaac Oviasu trading as Vos Nigeria Company obtained credit guarantee bond No. NBCN 12655 from the applicant to cover a loan facility of N700,000.00. A copy of the credit guarantee bond is exhibited hereto as Exhibit “1”.
12. That on 21/5/92 late Issac Oviasu died.
13. That on 4/6/93 the applicant received from the respondent a letter dated 4/6/93 claiming the sum of N437, 492.00 from the applicant as principal debt and interest in accordance with the credit guarantee bond. A copy of the letter is exhibited hereto as Exhibit “2”.
14. That the applicant in accordance with the practice and especially as Isaac Oviasu was dead requested the respondent to produce evidence of the amount of loan given to late Isaac Oviasu and the respondent produced a receipt purportedly signed by late Isaac Oviasu on 30/5/92 which was a receipt issued nine days after the death of late Isaac Oviasu. The receipt is exhibited hereto as Exhibit “3”.
15. That the respondent also produced New Nigeria Bank cheque dated 30/12/91 for the sum of N250.00 purportedly issued to late Isaac Oviasu and on enquiry there was no evidence that the said cheque was in fact paid into the account of late Isaac Oviasu. The cheque is exhibited hereto as Exhibit “4”.
16. That by letter reference BIC/CM/EB/CB/6/92 dated 20/12/93 written by the applicant to the respondent, the respondent repudiated the claims of the respondent because of lack of evidence of payment to late Isaac Oviasu and because the late Isaac Oviasu and the respondent committed a fraud on the applicant by altering the terms of the credit guarantee bond No. NACB 12655.
17. That when the respondent produced the agreement he entered into with the late Isaac Oviasu it was found to be a friendly loan without interest and for the sum of only N350,000.00. The agreement is exhibited hereto as Exhibit “5”.
18. That the applicant has a good defence to the claim of the respondent contained in the respondent’s statement of claim which is exhibited hereto as Exhibit “6” and the applicant is ready to file a defence within three days if this application is granted.”

When hearing in the case resumed, Mr. Itua, learned counsel for the applicant informed the court that he had filed a further and better affidavit. He then sought leave of the court to use the facts deposed therein. His request was opposed by Mr. Osaze-Uzzi, learned counsel for the respondent (now appellant) on the ground that the respondent had started his final address and as such it was too late in the day for the applicant to reopen its case. The objection was, however, overruled by the court and the applicant was allowed to reopen its case and use the facts deposed to in the further and better affidavit. The learned Judge gave his reasons for over-ruling the objection as follows in his said ruling:

“Ruling:

Having read through the further and better affidavit and listened to counsel, there is no doubt that the further and better affidavit was not filed timorously enough but the learned counsel has in the further and better affidavit advanced reasons to the effect that he could not be properly in knowledge of the facts now deposed to in the further and better affidavit because the case file was with another counsel previously assigned to do the matter. The further and better affidavit is tending to suggest some fraud which could, if proved, vitiate any judgment based on it. In the peculiar circumstance, this court has to choose either to adhere strictly to known procedure and rule that the applicant cannot belately now come to re-open its case and use the further and better affidavit and therefore shut its eyes to the allegation of fraud in the transaction forming the basis of the judgment, or choose to relax the known procedure in the interest of justice and allow the further and better affidavit be used in the further and reopened argument of the motion by the applicant. If the applicant is allowed to use the further and better affidavit the respondent whose counsel was already replying to the argument of the motion still has the opportunity of re-acting to the further and better affidavit and his counsel will still have the chance to advance his reply to the further and better affidavit in his reply. On the other hand, if the applicant is refused the use of the further and better affidavit, his allegation suggesting fraud in the entire transaction upon which the judgment and order of garnishee both rest will remain unattended or unexamined for ever.

I am of the view that this is a rare situation in which procedural defects should be ignored in favour of the merits of the case. Consequently, the objection of the learned counsel for the respondent is refused and the applicant and its counsel are allowed to re-open the argument of the motion and to use the further and better affidavit in that further argument”

Learned counsel for the applicant thereafter reopened his case by addressing the court and making use of the new facts disclosed in the further and better affidavit. At the conclusion of his address, learned counsel for the respondent/appellant concluded his address. The ruling of the court was thereafter delivered.

The learned trial Judge found as a fact in his ruling that there was nothing on record and in the case file to show that either the statement of claim or the motion on notice for final judgment in default of appearance was served on the applicant. The learned Judge also found as a fact that the bailiff who testified at the trial of the case failed to file the usual certificate of service in the case file. He therefore came to the conclusion that the failure of the applicant to appear to defend the claim at the trial was due to the fact that none of the court processes was served on the applicant. The motion was therefore granted as prayed. The court accordingly granted an extension of time within which the applicant was to apply to set aside the judgment dated 19/5/95 and the garnishee order. Both, the judgment and the garnishee order were also set aside and N500 cost was awarded to the applicant.

The present appeal is against the ruling of the court. Five grounds of appeal were filed against the ruling. The briefs were filed and exchanged in this court. Based on the grounds of appeal filed, the appellant formulated the following three issues as arising for determination in the appeal in the appellant’s brief:

“1. Was the learned trial Judge right when he granted the defendant’s counsel leave to rely and use the affidavit filed by him after he had concluded his submissions and to reopen his arguments after the plaintiffs counsel had commenced his reply thereto?

2. Was the learned trial Judge right in holding that the defendant was not served having regard to the evidence on record?
3. Was the learned trial Judge right in extending the time within which to apply to set aside the judgment and garnishee order of Hon. Justice V.A.O. Omage dated 29th May, 1995 having regard to the materials presented to court by the defendant?”

The respondent adopted the above three issues in the respondent’s brief.

It is submitted in the appellant’s brief on Issue No.1 that as the further affidavit filed did not disclose any facts which were not within the deponent’s knowledge, the respondent ought not to have been allowed to use the facts therein. This is because the reason given by the deponent in the affidavit was that he discovered while going through the file with his employer’s solicitors that paragraphs 7 and 11 of his earlier affidavit in support were incorrect. It is argued that since he did not disclose when he made the discovery and why he did not depose to the affidavit until more than three months after the application was filed, he ought not to have been allowed to use the new affidavit. The decision of the court to allow the respondent to re-open its case after the appellant’s counsel had started his address was unfair and contrary to the accepted practice as laid down in judicial decisions. The decision in Majoroh v. Fassassi (1986) 5 NWLR (Pt.40) 243 was cited in support of the submission.

The point raised in Issue No.2 relates to the question whether or not the respondent was duly served with the court processes. Reference is made to the evidence of the bailiff given at the hearing before Omage J. It is then submitted that the question whether or not there was service had been settled before that learned Judge and that it was not within the duty of Edokpayi J. to re-open that point because the court was already functus officio on that point.

The decision in Bello v. National Banks Ltd. (1992) 6 NWLR (Pt.246) 213 was cited in support of the point that an affidavit of service is prima facie proof of service in relation to how and where service was effected.

The lower court’s reasons for setting aside the judgment and the garnishee order are the subject-matter considered in the appellant’s third issue. It is submitted that although a court has a discretion to grant or refuse an application for extension of time to apply for an order to set aside a judgment and for an order to set aside a judgment, as in the present case, it is submitted that such request could only be granted after the applicant must have shown satisfactory reasons for bringing such application and such application must be made without undue delay. Reference is made to the reasons given in support of the application in this case and it is submitted that the reasons given do not justify granting the prayers. The interest of the appellant was also not adequately taken into consideration by the court before reaching its said conclusion. Similarly, the allegation of fraud relied on by the learned trial Judge is said to be inapplicable because the alleged fraud was made in respect of an alteration of the guarantee bond and not in respect of the respondent’s liability.

It is submitted in reply in the respondent’s brief on the first issue that what the learned trial Judge did when he allowed the respondent to reopen its case and use the facts deposed to in the better and further affidavit was proper and amounted to proper exercise of his discretion having regards to the facts placed before him.

It is submitted that since justice and fair hearing should not be sacrificed at the alter of technicality, the facts placed before the court were sufficient to warrant and justify the exercise of the court’s discretion in favour of the respondent as it was done in the case.

It is submitted in reply in respect of Issue No.2, that since the respondent had denied being served with any of the court processes, as deposed to in paragraphs 8 and 10 of the further and better affidavit, it became obvious that the entire proceedings leading to the judgment was a nullity because a plaintiff could only get judgment in a case under Order 14 of the High Court Rules if the defendant was duly served with all the court processes including copies of the motion for such judgment. Since the learned Judge rightly found as a fact that there was no certificate of service of the court processes on the respondent in the case file, his decision that the court processes were in fact not served on the respondent was justifiable having regard to the facts deposed to in the afore-mentioned paragraphs 8 and 10 of the further and better affidavit. The decision in Bello v. National Bank Ltd. (supra) is therefore said to be inapplicable to the present case since there was no affidavit of service on the respondent.

On Issue No.3, it is submitted in reply that since the learned trial Judge had a discretion to act one way or the other in the matter, the appellate court cannot just substitute its own discretion for that of the trial court unless the appellate court was satisfied that the lower court based its exercise of the discretion on wrong principles. Also since the appellant has failed to establish that the exercise of the discretion was based on wrong principles, there is therefore said to be no justification for this court tampering with the lower court’s discretion in the matter.

Two main points are raised in this appeal. The first is whether or not there is justification in this court tampering with the lower court’s exercise of its discretionary powers made in the case before it. The learned trial Judge had exercised his discretionary power in favour of the respondent by granting its request to re-open its case and use new facts made in a motion filed after its counsel had concluded his final address and learned counsel for the appellant had started his address but was yet to conclude it. The other point raised is whether the learned trial Judge’s finding of fact that the respondent was not served with the relevant court processes was right and justifiable having regards to the facts placed before him.

It is settled law that in an appeal against the exercise of discretion by a trial court, the appellate court can only tamper with such exercise of power when it has been shown that the discretion had not been exercised judicially. It will therefore be improper for an appellate court to merely substitute its own discretion for that of the trial court. An appellate court will, however, interfere when the order of the lower court will result in injustice: See Abeki v. Amboro (1961) All NLR 368; Resident, Ibadan Province v. Lagunju (1954) 14 WACA 549; and Enebeke v. Enekebe (1964) 1 All NLR 102. The question as to when an appellate court could rightly interfere with the exercise of a lower court’s discretion, therefore, will depend on the facts in every particular case. Thus, for example, in George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; (1963) 1 All NLR 71, it was held that in exercising his discretionary power to give leave to amend, the trial Judge should have regard to the rule audi alteram partem; but that the Judge was right in the case in refusing such leave after the plaintiff had concluded his case since there would be no opportunity for the plaintiff to be heard on the new points sought to be introduced. The facts in the present case are to some extent similar to those in the George v. Dominion Flour Mills Ltd., (supra) in that the respondent, as applicant, had completed its final address and the appellant had commenced his when the application was made.

But there are additional facts in the instant case which create a clear distinction between the present case and the George v. Dominion Flour Mills case (supra). Among the new facts placed before the lower court is that the respondent was in fact not served with the court processes in the case before the trial that resulted in the judgment sought to be enforced. Similarly, it was revealed that the guarantee bond relied on in making the respondent liable was unilaterally amended and there was also a possibility that no loan was in fact granted to Isaac Oviasu, now deceased, the repayment of which the respondent guaranteed in the bond said to have been unilaterally altered. These facts are strong enough to justify any fair-minded tribunal exercising its discretion in favour of any applicant. I therefore believe that the learned trial Judge acted properly in granting the application to reopen the applicant’s case. I believe that the rule audi alteram partem was also not breached because it was also open to the appellant to react to the new facts in any form it wanted, including starting his final address disrupted all over. As it was not on record that the court refused any request from him to either react to the new facts introduced or that he was not allowed to start his final address disrupted de novo there is therefore no evidence upon which one can act on in holding that the audi alteram partem rule had been breached in the appellant’s case. There is therefore totally no reason or justification for this court tampering with the lower court’s exercise of its discretionary power in the instant case.

The only point yet to be resolved is whether the learned trial Judge was right in holding that the respondent was not served with the court processes before the trial before Omage J. took place. Again the finding of fact made by the learned trial Judge was premised on the facts placed before the court. The respondent denied in the better and further affidavit that it was ever served with the court processes. It was also disclosed that as at the time of the purported service claimed by the appellant, the entire operation of the respondent company was grounded as a result of an industrial unrest embarked on by the company’s work force and that the service referred to in the motion on notice was in respect of another case, hence the need to depose to the better and further affidavit to correct the misinformation.

The law is settled that a court is only competent to adjudicate in the case before it when, among others, the action is initiated by due process of law and any condition precedent to the exercise of its jurisdiction has been fulfilled: See Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR 587. One of the conditions precedent to the exercise of a court’s jurisdiction which must be fulfilled is, in my view, that all the parties in the case must be duly served with the relevant court processes. Any failure to comply with any of the conditions precedent to the exercise of jurisdiction would amount to a defect in the competence of the court and such would render the entire proceedings before the court a nullity: See Madukolu & Ors. v. Nkemdilim, (supra). As the court has rightly found that the respondent was not served with the court processes before the trial leading to the judgment sought to be enforced was embarked upon, it followed that the entire proceeding before Omage J. was a nullity. The lower court was therefore right in setting aside the judgment and the garnishee order made for the enforcement of the said judgment.

In conclusion therefore and for the reasons set out above, I hold that there is totally no merit in the entire appeal. I accordingly dismiss it with N5,000.00 costs in favour of the respondent.

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Other Citations: (2000)LCN/0813(CA)