Mr. Peter Obi V. Independent National Electoral Commission & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C.

Let me thank counsel for the able manner in which they have put their submissions across to this court.

It needs be said however that these applications would appear to be one of much ado about nothing. The presentation before us and the array of counsel involved notwithstanding, the simple question for resolution is simply whether a Notice of Appeal filed in the Court of Appeal instead of the Federal High Court is void or voidable. Order 3 Rule 2(1) of Rules of the Court of Appeal provides that a notice of appeal shall be deemed filed when filed at the registry of the court of trial. It does not further prescribe that a notice of appeal shall be void if filed in the Court of Appeal rather than the High Court. Further Order 7 Rule 3 of the Court of Appeal Rules provides:

The court may in an exceptional circumstance and where it considers in the interest of justice so to do waive compliance by the parties with these Rules or any part thereof.

I have no doubt that Order 7 Rule 3 above is a saving provision for non-compliance with the provisions of the Court of Appeal Rules.

Most rules of court in Nigeria have similar provisions. These proceedings were commenced in the Federal High Court. The rules of the High Court have similar provision in Order 3 Rule 1. In my view, the non-compliance with Order 3 Rule 2(i) as to the venue to file an appeal would at the highest only confer on the adversary the right to ask the Court of Appeal to pronounce the notice of appeal in question void. It is not by itself self-executing.

Remarkably, the 5th respondent/applicant had known of the irregularity in the filing of the notice of appeal whilst proceedings were pending in that court. He never objected or raised issue about the irregularity. The court below was led into giving the judgment in favour of the 5th respondent/applicant with the knowledge that the notice of appeal was filed not at the High Court but in the Court of Appeal. The 8th respondent, Ifeanyi Okonkwo, had raised the point. If the court below had not at the time struck out the appeal or penalized the appellant/respondent it would be because it thought little of the non-compliance. The 5th respondent who had not then complained cannot now be allowed to complain of an occurrence he had previously thought little of. It would amount to allowing him to approbate and reprobate at the same time. The mistake of applicant’s counsel is to have assumed that the mere filing of the appeal at the registry of the court below renders the appeal void without more. He believes he has a joker he can raise at any stage. This is a wrong assumption. Litigation premised on such approach would amount to or lead to injustice. I am also to state that at the time the alleged notice of appeal was filed in the Court of Appeal on 18/4/07, the records of appeal were all before the Court of Appeal, which situation completely removed the possibility of the court below asking the appellant/respondent to go back to file his appeal at the trial High Court. See Order 1 Rule 22 of the Court of Appeal Rules. The case of The Honda Place Ltd. v. Globe Motors Holding Nig. Ltd. (2005) 7 S.C. (Pt. III) 182, relied upon in counsel’s address only related to an order made by this court upon an application heard in chambers. The order made in chambers was overruled by this court sitting in open court. This is quite a regular situation unlike the situation on hand.

The court has given a final judgment in accordance with its power under Section 235 of the 1999 Constitution. Its jurisdiction to interfere with its judgment falls within a very narrow compass as stated in a number of previous decisions of this court. This is not one of such reasons.

The argument that we should allow the applications to be argued on their merits would appear to be an invitation to us to engage on a wild goose chase. The relevant facts are plain for all to see. It is my view a clear case in which the jurisdiction of this court cannot be invoked. I would accordingly strike out the applications. I make no order as to costs.G. A. OGUNTADE, J.S.C.: I have had the advantage of reading in draft a copy of the leading judgment just delivered by my learned brother, Katsina-Alu, JSC., presiding. This application calls on us to set aside our judgment which was delivered on 14-06-07. The reason relied upon is that the appellant/respondent had filed his appeal to the court below in the same court instead of filing it at the court of trial.

The complaint of the 5th respondent/applicant relates solely to an alleged infraction of the Rules of Procedure in the court below. Order 3 Rule 2(1), provides that appeals shall be filed at the court of trial. If it was not so filed, this gave the right to the applicant to complain to the court below which may or may not use its powers under Order 7 Rule 3(1), to waive such non-compliance. Indeed the 8th respondent before this court raised the matter before the court below and later dropped the matter after it appeared the parties had compromised the matter. The court below then made a formal order on the matter. That order became an appealable order, the same having been made in the course of proceedings. The applicant never appealed against it. When the appeal by the appellant/respondent came before us, the matter was not raised. We gave judgment on the merit and considered all the issues raised in the appeal.

In view of the facts surrounding this application the conclusion to be arrived at is that there is no jurisdiction in this court to alter or review its judgment just because a party wants to raise a matter which it could earlier have raised in the course of hearing but failed to raise. I would also strike out this application.

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SC.123/2007(-R)

Prince Eyinade Ojo & Ors. V. The Attorney-general Of Oyo State & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

At the hearing of this appeal on 29th April, 2008, a notification of the death of Olayiwola Olawore and Chief Dr. A. O. Odeleye who were the 1st and 6th respondents respectively in this appeal, was received from their Counsel Mr. H. withdrew the appeal against them and consequently their names were struck out from the list of respondents accordingly. This left the 2nd , 3rd , 4th and 5th respondents as the respondents to the appeal.

This appeal has a chequered history. It originated from suit No. HOY/3/82 filed by the 1st Appellant along with three others as Plaintiffs in 1982 at the Oyo State High Court against the Governor of Oyo State and three other Defendants including the 2nd Respondent and claimed as follows –

“1. Declaration that the 1956 Baale of IIora Chieftaincy Declaration is the only valid Declaration in respect of the Baale of IIora Chieftaincy and that the present Kingmakers are the only persons entitled to select a Baale of Ilora elect;

2. Declaration that the Secretary of Oyo South Local Government’s circular letter reference No. OYLGSG535/VOL.11/394 of 11th January, 1982 appointing warrant kingmakers and inviting such appointees to consider a list of candidates for the purpose of filling the vacancy in the Baale of Ilora Chieftaincy is improper, invalid and of no effect;
3. Declaration that the purported meeting of the warrant kingmakers held at Jobele on Wednesday, 13th January, 1982 and the selection of a candidate for filling of the Baale of IIora Chieftaincy is unconstitutional, invalid, improper and of no effect;
4. Declaration that the 1st plaintiff is the only candidate validly elected as Baale of Ilora elect;
5. Injunction restraining the 3rd defendant from further participation in the processes (as Baale elect) appointment and installation of the Baale of IIora and from parading himself as Baale elect of IIora.
6. Injunction restraining the 1st defendant from approving the 3rd defendant or any candidate that the 4th Defendant may submit to him as Baale elect of Ilora and subsequently, installing any

such candidate as Baale of Dora.

7. Injunction restraining the 4th Defendant from further participation in any exercise connected with the processes of the approval and installation of the Defendant as Baale elect of IIora.”

At the end of the hearing of these claims, the trial court dismissed the appellants’ action and their appeal to the Court of Appeal against the judgment of the trial court was also dismissed. However, the Appellants’ further appeal to this Court was successful as their appeal in SC.218/1985, was allowed on 13th January, 1989 and the following reliefs were granted to them by this Court, namely –

1. Baale of not a Chieftaincy Declaration is the only valid declaration in respect of the Baale of IIora Chieftaincy and that the present Kingmakers are the only persons entitled to select a Baale of IIora elect.
2. A Declaration that the Secretary of Oyo South Local Government’s circular letter reference No.

OYLSG535/VOL. 11/394 of 11tb January, 1982 appointing warrant Kingmakers and inviting such appointees to consider list of candidates for the purpose of filling the vacancy in the Baale of

IIora Chieftaincy is improper, invalid and of no effect.

3. The purported selection of the 3rd Defendant/Respondent by the warrant kingmakers on 13th January, 1982 as the Baale elect of IIora is null and void and of no effect.
4. The purported appointment of the 3rd Defendant/Respondent as the Baale of IIora by the Oyo State Government as per the letter reference No. C.BI41/38/18/VOL.11/644 of 11th February, 1982 is null and void and of no effect.
5. Injunction restraining the 3rd Defendant/Respondent from further participation in any processes for installation as the himself as the (a little omission ) himself as the Baale of IIora.
6. The Oyo State Government as a matter of extreme urgency is to set in motion the processes for

the selection, appointment and installation of a new Baale of IIora.”

Thus the appellants who were the Plaintiffs at the trial court were the successful parties in this Court in their appeal. However, before the Oyo State Government could take appropriate steps to comply with the directive of this Court regarding the appointment and installation of a new Baale of Ilora, the 1st Appellant in the present appeal, who was also the 1st Appellant in the Appeal NO.SC/218/1985, along with .others went back to the trial Oyo State High Court and instituted a fresh action an the same Baale of Ilora Chieftaincy dispute seeking the following reliefs –

“1. Declaration that the 1st Plaintiff has been validly elected as the Baale of IIora.

2. Declaration that the 1st Defendant does not qualify as a candidate for election as Baale of IIora on the platform of Okunla Ruling House.
3. Order restraining the Defendants or anyone lawfully taking orders from them from setting in motion any other process for the selection and election of any other candidate than the 1st Plaintiff as Baale of IIora.
4. ( a little omission Page 5) presenting himself to the kingmakers or anyone else for appointment or installation as candidate for the vacant stool of Baale of Dora.
5. An injunction restraining the 4th, 5th and 6th defendants from intermeddling in the processes of the appointment and installation of Baale of IIora.”

At the hearing of their new case, the appellants as plaintiffs at the trial court called two witnesses in support of their claims while the respondents who were the defendants in the action also called two witnesses in their defence. In the course of the hearing, the record of proceedings in the first action instituted in 1982, suit No. HOY/3/82 by the Appellants which went through to the Court of Appeal and ultimately to the Supreme Court in Appeal No. SC/218/1985 in which judgment was delivered on 13th January, 1989 in favour of the appellants, were admitted in evidence as exhibits ‘A’ and ‘C’ respectively. At the conclusion of the hearing, the learned trial judge came to the conclusion that the appellants’ action was an attempt to frustrate the judgment of this Court in SC/218/1985 between the same parties which that Court has a duty under the Constitution to enforce and therefore dismissed the action in its entirety. The appellants’ appeal to the Court of Appeal against the dismissal of their action by trial court was also dismissed by the Court of Appeal in its judgment delivered on 2nd December, 1999., describing the appellants’ action as an abuse of the process of Court. The present appeal by the of the trial court.

From the 7 grounds of appeal filed by the appellants to challenge the decision of the Court of Appeal, two issues were formulated in the appellants’ brief of argument as follows –

“1. Whether or not the appeal of the appellants received the treatment it deserved from the Court of Appeal. The issue covers grounds 1, 2, 4 and 5 of the amended grounds of appeal.

2. What is the correct interpretation of the Supreme Court judgment in SC.218/1985 and its legal

effect on the Appellants’ claims This issue covers grounds 3, 6 and 7 of the amended grounds of

appeal.”

In the respondents’ brief of argument filed on behalf of the 2nd and 3rd respondents by their learned Counsel, the Attorney General of Oyo State, three issues were identified for the determination of the appeal. They are –

“(i.) Whether the trial and lower Courts have the judicial power to violate the express orders or directives of the Supreme Court and if not whether any suit praying them to do so is not an abuse of the process of the Court

(ii.) Whether the Court of Appeal raised the issue of abuse of Court suo motu.

(iii) (a little omission 7)Court judgment in SC.218/1985, the appellants’ claims could be sustained. ”

However, L. O. Fagbemi, learned senior Counsel for the 1st , 4th , 5th and 6th respondents but now for only 4th and 5th-respondents following the demise of the 1st and 6th Respondents, in the 4th and 5th respondents’ brief of argument, saw only two issues arising from the grounds of appeal filed by the appellants for the determination of the appeal namely –

“1. Whether the Court below was wrong in dismissing the plaintiffs’ suit for being an abuse of process of Court, in the face of its constitutional duty of giving effect to the judgment of the Supreme Court

2. Having regard to the resolution of the Court below that Plaintiffs’ suit was an abuse of Court process, whether the issue of interpretation of exhibit C is still extent”

Taking into consideration of the circumstances giving rise to the appellants’/plaintiffs , present second action instituted after the judgment of this Court in the appellants’ appeal No. 5C.218/1985, delivered on 13th January, 1989, I am of the view that the real and main issue for determination in this appeal is whether or not the Appellants’ action against the Respondents brought at the trial court in 1994, was an abuse of the process of Court as found by the Court below in dismissing the Appellants’ appeal. This is because the complaints of the Appellants that their appeal at the Court below was not accorded the treatment it No. SC.218/1985 articulated in the two issues identified in the Appellants’ brief of argument, are only complaints arising from this single issue connected with the abuse of the process of Court.

It was argued for the Appellants that the issue of abuse of the process of Court was taken suo motu by the Court below in determining the Appellants’ appeal against them without giving them an opportunity of being heard. Some of the cases relied upon in support of this argument include Ayanduba v. N.R.T.C. (1992) 5 N.W.L.R. (Pt. 243) 535 at 561; Am v. Alesinloye (2000) 15 F.W.L.R. 2610 S.C. at pages 2642 – 2643;(2000) 6 NWLR (Pt.660) 177. At pages 2642-264 ; Management Enterprises & Anor. v. Otusanya (1987) 2 N.W.L.R. (Pt. 55) 179 and Shitta-Bay v. Federal Public Service Commission (1981) 1 S.C. 40: that the Court below having acted in breach of the appellants’ right of fair haring, this appeal should be allowed. On the correct interpretation of the judgment of this Court in appeal No. SC.218/1985, learned Counsel to the appellants argued that there was no basis for considering their present case against the respondents as an abuse of the process of Court because of that judgment, as their action cannot be regarded as groundless or a sham. Learned Counsel concluded that the Court below having found that the pivot of the appellants’ case and afortiori all the submissions is or can be narrowed down to the interpretation or the legal effect of the decision of the Supreme Court in SC.218/1985, had a duty to consider and determine that issue because if on a proper interpretation of the judgment, the appellants are right, the have been faulty, justifying allowing this appeal.

Learned Attorney General of Oyo State for the 2nd and 3rd respondents, has pointed out that the face that the Appellant’s suit constituted an abuse of the process of Court was not raised for the first time at the Court below as alleged by the appellants; that it had been an issue between the parties right from the trial court which was quite right having found that the action constituted an abuse of the process of Court, the only, order that Court could have made was one of dismissal of the action having regard to the cases of Saraki v. Kotoye (1992) 9 N. W.L.R. (Pt. 264) 156 at 188; Owonikoko v. Arowosaye (1997) 10 N.W.L.R. (Pt. 523) 61 at 76 and Ambo v. Aiyeleru & Ors. (1993) 12 L.R.C.N. 600;(1993) 3 NWLR (Pt.280) 126, that this issue was also included as part of the issues before the Court below over which arguments were canvassed by the parties resulting in the decision of that Court that the reliefs sought by the appellants at the trial court, constituted estoppel turning their present case a relitigation of the decision of the Supreme Court and therefore an abuse of the Court process.

Learned senior Counsel for the 4th and 5th respondents in his submission on this issue, started by quoting in full, all the reliefs granted by this Court in allowing the appellants’ appeal in its judgment in appeal No. SC./218/1985, given on 13th January, 1989. He observed that the pronouncements in that judgment were that the appointment of the 3rd defendant in that case was declared null and avoid, the office of the Baale of Bora remained vacant and the Oyo State Government was to set a machinery in motion for the selection and appointment of a new Baale of IIora. Learned Senior Counsel pointed out that taking into consideration the reliefs granted to the Appellants by this Court in its judgment and the reliefs they again asked for in their new action at the trial High Court that, Court below was right in finding the Appellants’ new action as an abuse of Court process, if the cases of Saraki v. Kotoye (supra) and C.B.N. v. Ahmed (2001) 11 N.W.L.R. (Pt. 724) 369 at 409 – 410, are taken into consideration. To the complaint of the Appellants that the issue of abuse of Court process was raised suo motu by the Court below, learned senior Counsel to the 4th and 5th Respondents had observed that that issue and the facts to substantiate, same have always formed part and parcel of the case of the parties just like the duty of the parties and the Court to give effect to the decision of the Supreme Court. Learned senior Counsel therefore concluded that the Court below was right in its decision that the Appellants’ present action is an abuse of the process of Court which was rightly dismissed and therefore urged this Court to dismiss the appeal.

In resolving the only issue on abuse of process of Court arising for determination in this appeal, it is significant to observe that the abuse of Court process or abuse of judicial process as the case may be, may be manifest in both a proper or improper use of the judicial process in litigation. However, the employment or use of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. For example in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Oyegbola v. Esso West African Inc. (1966) 1 All N.L.R. 170;(1966) 2 SCNLR 32,and Okorodudu v. Okoromadu (1977) 3 S.C. 21. It is also an abuse of process where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness. In other words it is the inconvenience and inequities involved in the aims and purposes of the action that constitutes abuse of process. See Alade v. Alemuloke (1988) 1 N.W.L.R. (Pt. 69) 207, Saraki v. Kotoye (1992) 9 N.W.L.R. (Pt. 264) 156 and Central Bank of Nigeria v. Ahmed (2001) 11 N.W.L.R. (Pt. 724) 369 at 409 – 410.

The facts of this case as outline earlier in this judgment are hardly indispute. The parties were at the trial Oyo State High Court in 1982 principally in connection with declaratory and injunctive reliefs sought by the appellants against the respondents on the subject of the selection and appointment of a suitable candidate to fill the vacant stool of the Baale of Ilora in the then Oyo South Local Government Area of Oyo State. That case ended in this Court on 13th January, 1989, when this Court allowed the appellants’ appeal and granted most of the reliefs sought by the appellants. Instead of allowing the implementation of or the enforcement of that judgment in allowing the parties involved in the contest of the vacant stool to comply with the judgment of this Court, the appellants, particularly the 1st appellant whose zeal in the contest for the exercise in the selection and appointment of the Baale of Ilora had virtually blinded him, decided to institute a fresh action which gave rise to the present appeal. This conduct of the appellants is the type of conduct on the institution of an action on the same subject matter and between the same parties that was strongly condemned by this Court in Adigun v. Governor of Osun State (1995) 3 N.W.L.R.(Pt. 385} 513 at 549 as being an abuse of process of Court. In particular, this is what Iguh J.S.C said at page 549.

“I need hardly add that the appellants claims having been predicated on the very issue which this Court had dismissed in very clear terms on the ground that Ogumakinde Ande Ruling House had not been proved to be the only Ruling House of Oluwo of Iwo from which a candidate is to be appointed, the present action appears to me totally misconceived and an abuse of the process of the Court and was properly dismissed by the two Courts below.”

The appellants in the instant case in whose favour the decision of this Court declaring the selection and appointment of the 3nl defendant as the Baale elect of IIora, restraining the same 3rd defendant from further participating in any processes for installation as the Baale of IIora and if already installed from further parading himself as the Baale of IIora and directing the Oyo Sate Government as a matter of extreme urgently to set in motion the processes for selection, appointment and installation of a new Baale of IIora in which exercise the appellants through the 1st Appellant were free to participate, it was clearly a reckless act on the part of the appellants to embark on a fresh action. That action was indeed an abuse of the .process of Court as rightly found by the two Courts below.

The conduct of the appellants in reopening the issues already determined or in relitigating on the issues already decided upon by this Court in a final judgment resolving the dispute between the parties, the law is also trite that once one or more issues have been raised in a cause of action and distinctly determined or resolved between the same parties in a Court of competent jurisdiction, then neither party nor his privy or agent, can be allowed to relitigate that or those decided issues all over again in another action between the same parties or their privies or agents on the same issues. See Fadiora & Anor. v. Gbadebo & Anor, (1978) 3 S.C. 219 at 228 – 229; Ogbogu v. Ndiribo (1992) 6 N.W.L.R. (Pt. 245) 40 at 61 and Adebayo v. Babalola (1995) 7 N.W.L.R. (Pt. 408) 383 at 403.

In the present case, the learned judge after considering the cases of the parties on pleadings and evidence, in a well considered judgment came to the conclusion that what the action of the appellants sought to achieve was to prevent the inforcement of the judgment of this Court of 13th January, 1989 in appeal No. SC.218/1985 which the learned trial judge vouched to resist in order to give effect to that judgment. In affirming the decision of the trial court after dismissing the appellants’ appeal on the issue of estoppel and abuse of Court process, the Court below had this to say at pages 168 – 169 of the records –

“In view of all what I observed above on the merit of this appeal, I do not wish to say more. It suffices to state that the issues under review as canvassed by the appellants (in their brief) have no merit. The other remaining issues (i.e. issues 3 and 5) of the appellants brief are also covered by my resolution of the 1st set of three issues (argued together) as above. The whole appeal of the appellants based on an action which has been held to be an abuse of judicial process and therefore frivolous should be treated as a continuation of such an abuse or frivolity xxxx. The appeal being devoid of merit, is hereby accordingly dismissed. ”

I entirely agree. There is no ambiquity whatsoever in the judgment of this Court in SC. 218/1985 calling for any interpretation or clarification by this Court again. The appellants’ action in my view is not only a glaring abuse of the process of the Court but also a flagrant disobedience of the orders of this Court in the judgment of the final Court of the land that must not only be respected but also must be obeyed by the parties and all Courts.

The law is trite that where there are concurrent findings of facts by two lower Courts as happened in the present case, this Court will not readily interfere with the findings made unless there is some miscarriage of justice or the-violation of some principles of law or procedure. Since the appellants have not attacked any of the concurrent findings of the trial court as well as that of the Court of Appeal, I see no reason whatsoever to disturb those findings. See Ometa v. Numa (1935) 11 N.L.R. 18 and Stool of Abinabina v. Enyimadu (1952) 12 W.A.C.A. 171.

This case has clearly shown the futility of challenging the decision of this Court, as the apex Court in the hierarchy of our Courts system. The finality of the decisions of the Supreme Court in civil proceedings is absolute unless specifically set aside by a later legislation .. Therefore any devices or ingenious moves by parties through their Counsel to circumvent the decision of this Court shall be met with stiff resistence as was courageously d4ne by the Courts below in this case. Applying the decision of this Court in the case of Arubo v. Aiyelero (1993) 3N.W.L.R (Pt. 280) 126 at 142, the appropriate order to make where a party had abused the process of the Court, is the, dismissal of the abusive action as was done by the trial court and affirmed by the court below.

In the result, this appeal is totally without merit and the same is accordingly hereby dismissed with N50,000.00 costs of the respondents against the appellants.

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SC.414/2001

Duwin Pharmaceutical and Chemical Co. Ltd. V. Beneks Pharmaceutical and Cosmetics Ltd. & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

A.M. MUKHTAR, J.S.C.

On a motion ex parte brought by the appellant against the defendants who are now the respondents the learned trial Judge of the Federal High Court holden in Lagos made amongst others the following interim orders:

“(1) That leave is hereby granted to the plaintiff/applicant to sue the defendants/respondents on their own behalf and as representing all members of the class defined as engaged in the trade or business of selling or offering for sale and/or manufacture of a dermatological preparation called “HOT MOVATE GEL” purporting to be a product of the plaintiff by adopting a trade mark, get up or/and package design similar to and capable of being offered for sale as the applicant “movate” cream.

(2) That the defendants/respondents and each of those on whose behalf the defendants/respondents are sued whether acting by themselves or by their servants or agents or otherwise howsoever are hereby restrained pending the determination of the motion on notice for

interlocutory injunction filed on the 25th day of February, 1997 or further order from doing or authorising the doing of the following acts or any of them namely:-

(a) passing off or attempting to pass off or causing, enabling or assisting others to pass off a pharmaceutical preparation Known as “HOT MOVATE GEL” not manufactured at the applicant’s instance or of its merchandise as and for the “MOVATE CREAM” or goods of the applicant by the use or goods of the applicant by the use or in connection therewith in the course of trade of the applicant’s trade mark or adopting the distinctive get-up, package design or label identical or similar in all essential details to that of the applicant’s “MOVATE CREAM” or any colourable or deceptive imitation thereof without duly distinguishing such trade mark, get-up, or label from those of the applicant or by any other means

(b) manufacturing, or causing to be manufactured for them, importing, selling or exposing or offering for sale or supplying or inviting offers to acquire or distribute for the purpose of sale any pharmaceutical dermatological preparation in particular “HOT MOVATE GEL” with any package, get-up, label or tube, bearing the words “HOT MOVATE GEL” or “MOVATE” or any other words so closely resembling the applicant’s trade marks in particular “MOVATE GEL” registered as No. 52632 or “TOP MOVATE” registered as No. 52623 as to be calculated to lead to the belief that the preparation (“HOT MOVATE GEL”) not of the applicant’s manufacture or merchandise are products of the applicant,

(c) infringing the applicant’s copyright in the registered design No.5456 in respect of the applicant’s registered trade marks known as “MOVATE GEL” and “TOP MOVATE” “TOPSOVATE”, “TOPVATE” their get-up, label and package design.”

Then on 2/4/97, the defendant filed a motion on notice for the following orders:-

“1. AN ORDER discharging the order of this Honourable Court made on the 3rd day of March, 1997 on the grounds of material misrepresentation and failure to make full and frank disclosure.

2. AN ORDER striking out the name of the 3rd defendant in this case on the grounds that he is merely an agent of a disclosed principal, that is, the 1st defendant in this case.
3. AN ORDER of leave of court to join the Registrar of Trade Marks and Designs as a defendant to this suit to enable the defendant counter-claim for a rectification of the Register of Trade Marks and Designs on the ground that the plaintiff’s registrations were obtained fraudulently, the plaintiff’s being merely agents and distributors of ESAPILARMA of today’s MOVATE cream and not the Manufacturers thereof.”

The motion on notice was supported by an affidavit. It was moved and at the end of the day, the trial judge after considering the addresses of learned counsel vacated the interim injunction thus:”

In the exercise of my discretion and having regard to the circumstances of this case, I hereby order that the interim order of this court of 3/3/96 be and is hereby vacated.”

Unhappy with the above order, the plaintiff appealed to the Court of Appeal, Lagos, originally on four grounds of appeal, which notice of appeal was amended, and the grounds were increased to five. The appeal court after treating the issues raised by parties alongside the submission, found no merit whatsoever in the appeal and dismissed it. Again the plaintiff was not satisfied, so he has appealed to this court on five grounds of appeal, from which three issues for determination were raised. The issues are:-

“(1) Whether by not determining all the issues arising and submitted to it by the appellant as arising from its grounds of appeal for determination in the appeal, the Court of Appeal did not deny the appellant (its right to) a fair hearing of its appeal

(2) Whether the Court of Appeal was right in holding that the appellant’s resort to a police investigation of a crime in the circumstance was a resort to self-help and aimed at ridiculing the court and justified the vacation of the interim injunction by the learned trial Judge

(3) Whether the Court of Appeal should not have interfered with the discretion exercised by the Federal High Court in respect of the appellant’s motion for interlocutory injunction and exercised its powers under section 16 of the Court of Appeal Act to rehear and grant the said interlocutory injunction”

The issues raised in the respondents’ brief of argument are:-

“1. Whether the Court of Appeal by determining only the issues arising from the grounds of appeal submitted to it by the parties amounted to a denial of fair hearing.

2. Whether the Court of Appeal was right in law in affirming the learned trial Judge holding that an appellant who obtained an ex-parte order of injunction restraining the respondents from selling products subject matter of dispute to subsequently or simultaneously and without informing the court to initiate police investigation against the same infringement and without informing the police of a pending civil action has resorted to self-help.
3. Whether the Court of Appeal was right in law in affirming the learned trial Judge holding, discharging the interim injunction and ordering an accelerated hearing of the suit instead of granting an interlocutory injunction after taking arguments from both counsel on the motion to discharge the interim order given that there were conflicts in the parties’ affidavit evidence which raised issues that went to the root of the case.”

At the hearing of the appeal, exchanged briefs of argument were adopted by the learned counsel. I will now commence the judgment on this appeal with the treatment of issue (1) in the appellant and respondents’ briefs of argument. The gravamen of the appellant’s complain under this issue is that the court below jettisoned some of the issues it raised by it, as rather than treating all the five issues raised by it, the court reframed three issues. In his argument, learned counsel for the appellant has submitted that their five issues were related to their grounds of appeal and that the law is that issues are like pleadings intended to accentuate the real issues for determination. See Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) page 275. According to learned counsel, their entire brief and the issues raised were not examined or considered. Learned counsel further submitted that the three issues framed by the court below did not correctly flow from the grounds of appeal, and the arguments were overlooked in the judgment, and this occasioned a miscarriage of justice to the appellant. Reliance was placed on the cases of Sapara v. U.C.H. Board (1988) 4 NWLR (Pt. 86) page 58; Ukwunncyi v. State (1989) 4 NWLR (Pt. 114) page 131; Oro v. Falade (1995) 5 NWLR (Pt.396) page 385; Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) page 519; and Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) page 373.

The learned counsel for the respondents reiterated the essence of issues as adumbrated in the appellant’s brief of argument, referring to the cases of Ogbuanyinya and Ors. v. Okudo and Ors (No.2) (1990) 4 NWLR (Pt. 146) page 551; Oladele v. The State (1991) 1 NWLR (pt. 170) page 708; Busari and Ors v. Oseni and Ors. (1992) 4 NWLR (Pt. 237) page 557; and Chief Coker v. Chief Olukoga and Ors (1994) 2 NWLR (Pt. 329) page 648.

He contended that in the cases of Nzekwu v. Nzekwu etc relied upon by the appellant, the issues formulated therein were not derived from any of the grounds of appeal. Learned counsel submitted that since the issues reframed by the court in this case arose from the grounds of appeal there is no miscarriage of justice occasioned.

It is imperative to look at the record of proceedings to analyse the issues reframed by the lower court vis-a-vis the grounds of appeal.

The grounds of appeal as contained in the amended notice of appeal on page 392 of the printed record of appeal read the following (without their particulars).

“1. The learned trial Judge erred in law when after having fully heard and entertained on the merits, the pending applications including the plaintiff’s motion on notice dated 24/2/97 for interlocutory injunction, he directed an accelerated trial of the substantive suit without granting order determining the interlocutory injunction the requirements for granting or determining which the plaintiff met.

2. The learned trial Judge erred in law and occasioned miscarriage of justice when without giving the appellant (or the parties) an opportunity to comment or address him on the following issues not raised or canvassed or relied on by the parties based his decision on them namely:-
3. The learned trial Judge erred in law in denying the plaintiff of its constitutional right to fair hearing when after the plaintiff had taken the trouble and incurred expenses on filing and serving the said motion on notice for interlocutory injunction dated 24/2/97 and fully argued same on the merits, he filed or neglected to determine the plaintiff’s civil or legal right or otherwise to it and vacated the interim injunction then subsisting in favour of the plaintiff, thereby exposing the plaintiff’s legal rights, trade marks and designs to violation by the defendants.
4. The learned trial Judge misdirected himself in holding as follows namely:-

“Again, I am of the view that it is no longer justifiable for this court to retain its interim order granted on 3/3/97 in that this court must in the circumstances of the present application for an injunction, take account of the conduct of an applicant in the instant case. In the present case, what transpired in the course of the proceeding is that the present applicant for interlocutory injunction has resorted to self-help by reporting the same matter to the police who are now investigating a complaint of adulteration of the product Movate cream against the respondents. Following this complaint, the respondent was detained by the police and was subsequently released on bail. Although the applicant has informed this court that he has taken steps to withdraw the complaint but as at today the matter is still with the police…

5. The learned trial Judge erred in law in treating the plaintiff’s complaint to the police of the adulteration of its movate cream and the police investigation of same as a resort to self-help and abuse of his court’s process and in using same as a basis for vacating the interim injunction dated 3/3/97 subsisting in favour of the plaintiff when…….”

As has been said above, the appellant raised five issues for determination in its brief of argument, and the respondents raised seven issues in its brief of argument, a position which many legal authorities frown on, (the grounds of appeal being only five). It has been pronounced in many cases by appellate courts that issues formulated for determination must not out number the grounds of appeal, for each issue is supposed to have its base and source from a ground or grounds of appeal. See Oyekan v. Akinrinwa (1996) 7 NWLR (Pt. 459) page 128; and Angara v. Christmatel Shipping Co. Ltd. (2001) 8 NWLR (PI. 716) page 685. Once issues exceed the grounds of appeal there is danger that some of the issues are outside the grounds of appeal, and therefore not related to each other. Grounds of appeal cannot be subsumed from main grounds to accommodate issues. That is why ideally an issue must be distilled from a ground or grounds of appeal. The position of the law is that an issue must derive its source from a ground of appeal, and an issue that does not so relate will not be tolerated. See Chime v. Chime (2001) 3 NWLR (Pt. 701) page 527; Western Steel Works v. Iron and Steel Workers (1987) 1NWLR (Pt. 49) page 284; and Salami v. Mohammed (2000) 9 NWLR (Pt. 673) page 469. Whereas, the converse situation is allowed i.e. an issue can cover more than a ground of appeal the present situation has no place in our legal system. Proliferation of issues are discouraged. See Oyekan v. Akinrinwa (supra). This situation, I believe contributed to and informed the step taken by the learned Justice of the Court of Appeal to reframe his own issues, for he had in his judgment, before reframing the issues said:-

“Through a plethora of decisions this court and the Supreme Court have said that issues formulated by parties must flow from the grounds of appeal filed and such issues must not out number the grounds of appeal.

The issues raised by the respondent would seem to out-number the grounds of appeal; they are however interwoven and repetitive…”

In considering this appeal, I shall like to be guided by the following issues:-

(1) Is it an abuse of the court process for an appellant who has obtained an ex-parte order of injunction restraining the respondent from selling products subject matter of dispute to subsequently and without informing the court to initiate police investigation against the same respondents on an allegation of the same infringement and without informing the police of a pending civil action.

(2) Whether the learned trial Judge was right in discharging the interim injunction and ordering an accelerated hearing of the suit instead of granting an accelerated injunction after taking arguments from both counsel on the motion to discharge the interim order; giving the facts of this case.

(3) Whether by the ruling of 22nd July, 1997 the constitutional right to fair hearing of the appellant has been infringed.”

It is a relief that the learned counsel for the appellant has not contested the power of the court below to frame or reframe issues, for authorities abound that a court is empowered to frame issues where it is of the opinion that the issues formulated by counsel are not succinct or suffer some inadequacies. See Oloriode v. Oyebi (1984) 1 SCNLR page 390; N.P.A. v. Panalpina World Transport (Nig.) Ltd. (1974) 1 NMLR 82; and Oba Lawal Fabiyi v. Chief Solomon Adeniyi & 2 Ors. (2000) 6 NWLR (Pt. 662) page 532.

I do not also loose sight of the argument of learned counsel for the appellant that the lower court could or should have considered the issues of the appellant. I suppose he has, point there, the issues being only five and in tandem with the grounds of appeal, but then the pertinent question here is, are the issues appropriate and do they flow from the grounds of appeal In the first place, the grounds of appeal in the amended notice of appeal were five (as are reproduced above), and so the five issues raised in the appellant’s brief of argument correlates with the five grounds of appeal, and at a careful study of both issues and grounds of appeal it could be said to be related to the grounds of appeal. There are however, some over lappings in the issues, but then since the learned Justice was at liberty to reframe the issues for determination, there is no reason to condemn the procedure adopted by him as long as the issues flow from the I grounds of appeal. It is very clear that reframed issue (1) supra is distilled and flows from grounds (4) and (5) of appeal. Issue (2) is covered by grounds (I) and (2) of appeal, and the third issue is distilled from ground (3) of appeal. So in as far as the law is concerned the issues are competent and are issues that can be treated to determine the appeal, as they were in controversy. The situation in the authorities cited by the learned counsel for the appellant are distinguishable from the present case, so I fail to see that the lower court erred in refraining the issues upon which the determination of the appeal was based, and so grounds (1) and (2) of appeal to which issue (1) is married fails, as I am answering the said issue in the negative.

In proffering argument to cover issue (2) supra, learned counsel for the appellant submitted that its lodging of complaint of adulteration of its product to the police against the respondents was not because the trial court’s order was being disobeyed by the respondents and was being enforced through the police, as the lower court seems to have understood the situation and concluded that the report and investigation were aimed at ridiculing the trial court. What the learned trial Judge described as resort to self help was the appellant’s reporting of the same matter pending before him to the police authorities who were then investigating a complaint of adulteration of the product movate cream against the respondents. Learned counsel further submitted that the matter reported to the police was the crime of product adulteration which was different from claim of injunction from infringement and passing off of registered trade mark before the court. learned counsel placed reliance on the cases of Odogwu v. Odogwu (1994) 1 NWLR (Pt.323) page 708, The Registered Trustees, Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt.158) page 514; Governor of Lagos State v. Ojukwu (1985) 2 NWLR (Pt.10) page 806; and Halsbury’s Laws of England, volume 45, 4th Edition, paragraph 1248 at page 577.

The learned counsel for the respondents after stating the position of things and the action taken by the appellant, in his brief of argument proceeded to submit that the appellant’s report to the police by way of petition initiated police investigation against the same respondents on an allegation of the same infringement and without informing the police of the pending civil action in which an anton piller order has been granted and without informing the trial court who should be seized of all the fact of the case, is not just an abuse but also self help as it is aimed at totally frustrating the legitimate healthy competition.

It is on record (see page 19 of the printed record of proceedings) that the appellant did report the matter in controversy to the police, as is evidenced by the proceeding I will reproduce here below. It reads:

“Court: At the last hearing there was a complaint before this court by the respondents that the same subject matter is before the A.I.G. Force C.I.D. Alagbon, who ordered that the 3rd respondent be detained. He was later released on bail. This court then took into consideration the fact that the plaintiff had resorted to self help and therefore ordered learned counsel for the plaintiffs/applicants to advise his client to withdraw the complaint pending before the police before the adjourned date.

Nakpodi: We have withdrawn the petition.

Dr. Sodipo: The is not strictly correct because the defendants/respondents have been visiting the police on their invitation and have even made additional statement yesterday 21/7/97. The police have collected samples of the defendants product on 21/7/97 and have sent same for analysis. The Police have refused to release the defendant’s product which they bought from the plaintiffs. The police still came to the defendant’s premises to conduct searches. The police refuted the plaintiff’s claim that they have withdrawn the petition. I submit that the plaintiff has not done enough to ensure that the harassment which they initiated by their petition will stop despite the interim order against us …”

It is also on record that the trial court upon hearing the ex-parte motion of the plaintiff/appellant for injunction inter-alia made the orders already reproduced above.

It is disturbing that the appellant after obtaining the above orders should proceed to petition the police on the same matter Order (b) supra as can be understood was restraining the respondents from inter-alia manufacturing the product in controversy, and so should cover whatever the appellant deemed to be the respondents interference with the product in controversy, albeit adulteration of the product. The argument of learned counsel for the appellant that the report lodged to the police was on adulteration of the product, does not reduce the gravity and consequence of the action of seeking police intervention and self-help. The argument is not at all persuasive. The appellant sought the courts intervention, and the court adequately intervened by giving the reliefs and orders sought, but then the appellant has proved that that was not enough for it was not satisfied, but resorted to self help. This action definitely was contrary to the principle that a litigant will not abuse a court’s process that is already in existence by resorting to self-help, and the courts will not tolerate such action or abuse.

The learned trial Judge in his judgment after dealing with this issue of reporting the matter that was pending in court to the police, (rightly in my view) made this finding:-

“The fact that the complaint to the police was made simultaneously with the filing of the present suit in my view amount to an abuse of the judicial process of this court.”

This finding having been made an issue of complaint was thrashed out by the lower in its judgment which reads:-

“A resort to police investigation as done by the appellant is some what a resort to self-help. Weighed against the background that no report was made to the court of any disobedience of its order, it seems to me that the action of the appellant is one aimed at bringing the court to ridicule. It is intolerable under rule of law.”

I completely endorse the above finding affirming the trial court’s decision.

The submission of learned counsel for the appellant that the facts and circumstances of this case are different from the situations of self-help and thus justifying their action as contained on page of their brief of argument does not hold water. The fact that the appellant complied with the order of the court to withdraw its petition was negated by learned trial court in its judgment where it said:-

“Although the applicant has informed this court that he has on the order of this court taken steps to withdraw the complaint but as at today the matter is still with the police.”

The rule in the cases of Smith v. Selwyn (1914) 3 K.B. page 98 is not evocable within the con of this case. The reliance on Section 6 of the 1979 Constitution, and section 230, 1979 Constitution Amendment Decree (107) 1993, and the cases of A.-G., Federation v. Dawodu (1995) 2 NWLR (Pt. 380) page 712; and Veritas Insurance Co. Limited v. Citi Trust Investments (1993) 3 NWLR (Pt. 281) page 349 are not of assistance to the appellant as far as this issue and discussion is concerned, as the circumstances of these cases are distinguishable from the present case. What is at stake here is the propriety of the appellant seeking police intervention after it has obtained an order of the court. The complaint here revolves around the abuse of court process, not the maintenance of a civil suit based upon an offence that has not been disposed of.

In the light of the above discussion, I answer the above issue in the affirmative, and so dismiss ground (3) of appeal to which it is married.

Now, to issue (3). The submission of learned counsel for the appellant under this issue is that the interest of fairness and justice would have been met if the appellant’s civil right to the interlocutory injunction sought had been determined especially since a lot of time, energy, costs and efforts had gone into the filing and hearing of the motion for interlocutory injunction. According to learned counsel, as the requirements to be fulfilled by the appellant for the granting of interlocutory injunction has been fulfilled the balance of convenience is on the appellant’s side, and that damages will not be enough to compensate the loss the appellant will suffer. The appellant was prepared to give an undertaking as to damages should the interlocutory order later be found to have been wrongly made, and the appellant’s legal intellectual property rights to the trade marks ‘Movate Gel’, ‘Topmovate’ as evidenced by its certificates of registrations of the trade marks and usage of same in Nigeria, which the appellant sought to protect from the respondents’ continuous violation pending trial. Learned counsel placed reliance on the cases of Adene v. Dantumbu (1988) 4 NWLR (pt. 88) page 309; Obeya Memorial Specialist Hospital v. Attorney General of the Federation (1987) Vol. 18 NSVV (Pt. II) page 961; (1987) 3 NWLR (Pt. 60) 325; Kotoye v. CBN (1989) 1 NWLR (Pt. 98) page 419; Ladoke v. Olobayo (1992) 8NWLR (Pt. 261) page 605; and University of Lagos v. M. I. Aigoro (1985) 1 NWLR (Pt. 1) page 143.

In this brief of argument, learned counsel for the respondent has contended that in granting or refusing an application for interlocutory injunction, a court must exercise its discretion judicially and judiciously, and an appellate court will not normally set aside or interfere with the exercise of discretion of the lower court once it is clear that it was exercised on just and legal reasons i.e judicially and judiciously. He placed reliance on the cases of Idoko v. Ogbeikwu (2003) 7 NWLR (Pt. 819) page 275; Royal Exchange Assurance F (Nig) Ltd. V. Aswani ile Industries Ltd. (1992) 3 NWLR (Pt. 227) page 1; and Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) page 156.

A careful study of the record of proceedings reveals that facts that were in conflict have been disclosed, and to go into a detailed treatment of the affidavit evidence will be tantamount to dealing with the substantive issues at stake. The law is trite that at that stage of the proceedings i.e. interlocutory application, the court should not attempt to go into the merit of the matter in controversy else it is tempted to determine the case at that stage and leave nothing for the just and proper determination of the suit after the hearing. See Registered Trustees of P.C.N. v. Registered Trustees of Ansarud-deen Society of Nigeria (2000) 5 NWLR (Pt. 657) page 368; and John Holt Nigeria Ltd. & Ors. v. Holts African Workers Union of Nigeria and Cameroons (1963) 1ANLR page 379; (1963) 2 SCNLR 383.

In Halsbury’s Laws of England, Fourth Edition, Re issue, vol. 24 page 853, the principles upon which the court acts are stated thus:-

“On application for an injunction in aid of a plaintiff’s alleged right, the court will usually wish to consider whether the case is so clear and free from objection on equitable grounds that it ought to interfere to preserve property without waiting for the right to be established. This depends upon a variety of circumstances, and it is impossible to lay down any general rule on the subject by which the court ought in all cases to be regulated, but in no case will the court grant an interlocutory injunction as of course.

The tendency is to avoid trying the same question twice and to grant injunctions only in clear cases.” (Italics is mine)

It was in this wise that the learned trial judge was cautious to make the following observations and findings:

“Court:- Ruling

I have carefully gone through the arguments of counsel for and against the two applications which have been canvassed before me. First and foremost, I hold the view that both applications call for the exercise of my discretion which must be exercised both judicially and judiciously.

Again, it seems to me on a careful analysis of the averments contained in the affidavits and counter affidavits as well as the submissions of learned counsel for the applicant and respondent in the two applications that the issue of two competing rights have been raised which to me cannot be conveniently disposed of at this stage of the proceedings by affidavit evidence but are issues to be determined by oral evidence at the trial of the substantive suit. The duty placed therefore on this court in the determination of any interlocutory application pending the trial of the substantive suit is that care should be taken not to make pronouncements which may prejudice the trial of the claim filed and still pending before the Court – See Ojukwu v. Govt. of Lagos State (1986) 3 NWLR (Pt. 26) at page 39.

A corollary to the above is that a court is not to try in contention in a case twice first while considering the application for interlocutory injunction and secondly during the trial. The correct thing to do is to stop hearing the application and accelerate the trial of the substantive Suit. See The John Holt case (1963) 1 A.N.L.R page 379; (1963) 2 SCNLR 383 as applied in Nigerian Civil Service Commission v. Essien (1985) 3 NWLR (Pt. 12) 306 page 312.

I have come to the conclusion that the two principles of law enunciated above are applicable to the instant case. I believe the better approach in a situation as this, is to fix the case for hearing and decide the issue once and for all. This suit is therefore to be given accelerated hearing and I hereby order pleadings accordingly.”

The issuance of orders of interlocutory matters being one purely at the discretion of a court is a matter that should be exercised judicially and judiciously, and once an appellate court is satisfied that this principle of law has been met, it will hesitate to interfere with the decision of the trial court. In this vein, the lower court was therefore right when it said:-

“Giving the facts of this case, it is my considered view that the trial judge has exercised his judicial discretion bona fide. To interfere with the orders contained in the ruling of 22nd July, 1997 is to fetter that discretionary power of the learned trial Judge.”

In the light of the above discussion, I resolve the last issue in the appellant’s brief of argument in favour of the respondents, and so dismiss the ground of appeal to which the said issue is married.

In the final analysis, the appeal has no merit whatsoever, and I so dismiss it. The judgment of the Court of Appeal is hereby affirmed. I order the costs of N 10,000.00 in favour of the respondent against the appellant.

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SC.296/2000

Oyebamiji & Ors.v. Iyabo Afusat Lawanson & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

O. OGEBE, J.S.C.

The respondents sued the appellants before the High Court of Justice Ibadan claiming the following reliefs:-

(a) N10,000.00 General damages for trespass being presently committed by the defendants on the property of Bandele Ayinla Lawanson (deceased) the father of the plaintiffs lying and being at Orita Bashorun, Aba Road, Ibadan covered by Deed of conveyance registered as 50/50/458 of Lands Registry, Ibadan.

“(b) Perpetual Injunction restraining the defendants by themselves, their agents, servants and privies from committing further trespass on the land.”

Pleadings were exchanged by the parties and the trial court after hearing evidence and listening to the addresses of the parties gave judgment in favour of the Respondents Dissatisfied with the judgment, the appellants appealed to the Court of Appeal Ibadan and raised for the first time the issue of limitation of action. The Court of Appeal dismissed the appeal.

This is a further appeal to the Supreme Court and the learned counsel for the appellants filed a brief on their behalf and formulated five issues for determination as follows:-

1. “Whether the court has jurisdiction to entertain the paintiffs/respondents’ claims having regard to (i) Section 7 (2) of the Limitation Law Cap 64, Laws of Western Region of Nigeria and (ii) Section 4(1 )(a) of the Limitation Law Cap. 64, Laws of Oyo State of Nigeria, 1978”.
2. Whether the defence of limitation which relates to the issue of jurisdiction needs to be specifically pleaded in the Statement of Defence before it can be raised.
3. Whether the plaintiffs/respondents have discharged the onus of proof that exhibit “8” and exhibits ‘C’-C’3′ were duly executed by respective vendors mentioned in the said documents without calling any member of their family to testify on their behalf
4. Whether the plaintiffs/respondents have proved a better title to entitle them to judgment against the defendants/appellants
5. Whether the learned court has jurisdiction to entertain the action having regard to Section 10 of the Administration of Estates Law, Laws of Oyo State of Nigeria, 1978.”

The learned counsel for the Respondents also filed a brief on their behalf and formulated two issues for determination as follows: –

1. “Whether the statute of Limitation or any statute for that matter, is one that the Appellants should specifically plead in their statement of defence or one to be merely inferred by the court from the Respondents’ Writ of Summons and statement of claim and no more as the appellants are contending in this appeal”.

2 “Whether the plaintiffs/respondents has discharged the burden of proof placed on them to entitle them to the judgment of the court in this appeal.”

The two issues formulated by the Respondents encompass the five issues contained in the Appellant’s brief. I shall therefore adopt the issues formulated by the Respondents in determining this appeal.

The main argument of the learned counsel for the Appellants is that the trial court lacked the jurisdiction to try the case because, the action was statute barred by virtue of Section 7 (2) of the Limitation Law Cap 64, Laws of the Western Region of Nigeria and Section 4 (1) (a) of the Limitation Law Cap 64, Laws of Oyo State 1978. He also questioned the jurisdiction of the trial court to entertain the action having regard to Section 10 of the Administration of Estate Law, Laws of Oyo State of Nigeria 1978 because the respondents did not obtain letters of administration before suing in respect of the estate of their deceased father.

It should be noted that these issues were not raised in the court of first instance. The issue of limitation was raised for the first time in the Court of Appeal and the Court of Appeal ruled against the appellants. The issue is being repeated in this Court. The issue in respect of the Administration of Estate Law is being raised for the first time in this Court.

The learned counsel for the appellants submitted that the cause of dispute arose in the year 1984 while the action was brought in 1991 It was therefore caught by the Limitation Law of Oyo State. He relied on the case of Egbe V. Adefarasin 1987 1 NWLR Pt. 47

(1). He submitted that the defendants need not plead the statute of limitation before it is enforced since it touches on jurisdiction and can be raised at any stage. He relied on the case of Amata V. Omofuma (1997) 2 NWLR (Pt. 485) 93, which I find inapplicable to the facts of the present case.

The learned counsel further submitted that since respondents did not obtain letters of administration before suing, they had no locus standi to institute the action

In reply the learned counsel for the respondents submitted that the action was not caught by the Limitation Law of Oyo State and that in any event if the Appellants intended to rely on the Limitation Law they should have pleaded it specifically as required by Order 25 Rule 6(1) and (2) of the High Court (Civil Procedure) Rules of Oyo State. He submitted that the Limitation Law and the Administration of Estate Law, Laws of Oyo State now being relied upon by the appellants were not pleaded and facts upon which the appellants could rely to invoke the defences created by these Laws in their favour were not pleaded. He relied on the following cases: “F.C.D.A v. Naibi (1990) 5SCNJ 186 at 194-195, Adegbola v. Obalaja (1978) 2 LRN 164 at 167, Fadare v. A.G. of Oyo State (1982) 4SC1 at 12-13, where Limitation Law was pleaded by the defence. Ojo v. Banjo (1979) 2 LRN 396 at 298 where the statute was pleaded. Onwuchekwe v. N.D.I.C (2002) 94 LRCN 232 at 239, Texaco Panama v. Shell Petroleum (2002) 94 LRCN 152.”

The learned counsel further argued that there is nothing from the pleadings to show that the action is statute barred

Order 25 Rules 6( 1) and (2) of the High Court (Civil Procedure) Rules of Oyo State reads as follows:-

“Rule 6(1) – A party shall plead specifically any matter for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality-which, if not specifically pleaded might take the opposite party by surprise

Rule 6(2) – Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or the defendant, as the case may be; and, subject thereto, an averment of the performance or, occurrence of all conditions precedent necessary for the case of the plaintiff or the defendant shall be implied in his pleading.”

These provisions are very clear that a party wishing to rely on a Statute of Limitation or the Administration of Estate Law must specifically plead same. It is not true therefore that such defence should be left to speculation or inference. Apart from that, the respondent’s claim was for present trespass as at the time of the action, and the Statute of Limitation could not possibly apply to it. It was also very clear from the pleadings that the respondents inherited their deceased father’s property under Customary Law and so, the question of the application of the Administration of Estate Law or the application of English Law did not arise.

On the second issue as to whether the respondents discharged the burden of proof to entitle them to judgment, the learned counsel for the appellants submitted that the respondents did not discharge the onus of proof; they were never in possession of the disputed land and did not show a better title. The learned counsel for the respondents submitted otherwise and said that the judgment appealed against is based on the concurrent findings of facts of the High Court and Court of Appeal and the Supreme Court should not disturb them.

The facts of the case are relatively simple. The respondents sued for trespass and injunction and were able to show that their father purchased the land in 1959 from Olugbode family under customary law, and the land was converted into a conveyance exhibit ‘8’ on 20th April, 1961 which was duly registered in the Land Registry, Ibadan. The appellants claimed to have bought the land by customary law as far back as 1956 but were unable to establish that fact. The trial court disbelieved them and gave judgment in, favour of the respondents. The Court of Appeal also evaluated the evidence thoroughly and dismissed the appellants’ appeal.

It is not the practice of this Court to interfere with concurrent findings of facts of both the trial court and Court of Appeal on essentially issues of fact unless there is established a miscarriage of justice or a violation of some principles of law or procedure. See: Nziwu V. Onuorah (2002) 4 NWLR (Pt. 756) 22 No such situation has arisen in this case the judgments of the two lower courts cannot be faulted.

For all I have said in this judgment I see no merit whatsoever in this appeal and it is hereby dismissed with costs of N10,000.00 in favour of the respondents.NIKI TOBI, J.S.C.: The main plank of this appeal is whether the action commenced by the plaintiffs/respondents was statute barred or not, having regard to section 7(2) of the Limitation Law, Cap. 64, Laws of Western Region of Nigeria and section 4 (I) (a) of the Limitation Law, Cap.64, Laws of Oyo State of Nigeria 1978.

The facts are material to the determination of the issue as they relate to when the cause of action arose and when the action was filed. And so, I take the facts. It is the case of the plaintiffs/respondents that the original owner of the land in dispute was the family of Olugbade. One Bamidele Ayinla Lawanson purchased the land from Olugbade family in 1959. A Deed of Conveyance dated 20th April, 1961 was executed in his favour. Bamidele Ayinla Lawanson (deceased) built a mud house on the land. He reared goats and sheep on the land. Part of the land was given to P.W.6. The defendant entered the land in 1984 and chased away all the tenants put on the land. The plaintiffs/respondents, who claimed as the next of kin and beneficiaries of the estate of Bamidele Ayinla Lawanson, did not take any action until 1991.

The case of the 1st appellant is that he purchased the land in dispute from Olugbade family in 1956 during the visit of Queen Elizabeth II to Nigeria. He bought the land in the presence of witnesses for 150 British pounds. He was put into possession and he has remained in possession ever since. The case of the other appellants is that they purchased portion of land from the 1st defendant/appellant.

On 3rd April, 1991, the plaintiffs/respondents filed a writ of summons claiming as follows:

“(a) N10,000.00 General damages for trespass being presently committed by the Defendants on the property of Bamidele Ayinla Lawanson (Deceased), the father of the plaintiffs, lying and being at Orita Bashorun, Abasa Road, Ibadan covered by Deed of Conveyance registered as 50/50/548 of Lands Registry, Ibadan.

(b) Perpetual injunction, restraining the Defendants, by themselves, their agents, servants and privies from committing further trespass on the land.”

The learned trial Judge gave judgment to the plaintiffs/respondents. An appeal to the Court of Appeal was dismissed. Delivering the lead judgment, Tabai, JCA (as he then was) said in the final paragraph of his judgment at page 235 of the record:

“In the light of the foregoing consideration I resolve all the issues in favour of the Respondents. I have no strong reason to disturb the judgment of the learned trial Judge which is accordingly affirmed. The result is that the appeal is dismissed.”

Dissatisfied, the appellants have come to the Supreme Court. Briefs were filed and exchanged. The appellants formulated five issues as follows:

“1. Whether the Court has jurisdiction to entertain the plaintiffs/respondents’ claims having regard to (i) Section 7 (2) of the Limitation Law Cap. 64, Laws of Western Region of Nigeria and (ii) Section 4 (1)(1)(a) of the Limitation Law Cap.64, Laws of Oyo State of Nigeria, 1978.

2. Whether the defence of Limitation which relates to the issue of jurisdiction needs to be specifically pleaded in the Statement of Defence before it can be raised.
3. Whether the plaintiffs/respondents have discharged the onus of proof that exhibit ‘B’ and exhibits ‘C-C3′ were duly executed by respective vendors mentioned in the said documents without calling any member of their family to testify on their behalf.
4. Whether the plaintiffs/respondents have proved a better title to entitle them to judgment against the defendants/appellants.
5. Whether the learned court has jurisdiction to entertain the action having regard to Section 10 of the Administration of Estates Law, Laws of Oyo State of Nigeria, 1978.”

The respondents formulated two issues as follows:

1. “Whether the Statute of Limitation or any statute for that matter, is one that the appellants should specifically plead in their Statement of Defence or one to be merely inferred by the court from the respondents. Writ of summons and Statement of Claim and no more as the Appellants are contending in this appeal.
2. Whether the plaintiffs/respondents have discharged the burden of proof placed on them to entitle them to the judgment of the court in this appeal”

I do not know how the appellants managed five issues in their brief. As I said, the appeal centres on whether the action was statute barred or not. And there is the ancillary issue of whether the statute of Limitation should be specifically pleaded. Can these give rise to five issues I think not. The two issues formulated by the respondents are more likely appropriate”.

Section 6 (2) of the Limitation Law Cap 64 of the Laws of Western Region of Nigeria provides:

“No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrues to him”

Section 7 (2) of the same Law provides:

“Where any person brings an action to recover any land of a deceased person, whether under a Will or an Intestacy, and the deceased person was on the date of his death in possession of the land, and was the last person entitled to the land to be in possession thereof, the right of action shall be deemed to have accrued on the date of his death.”

As section 6(2) of the Limitation Law provides for a period of twelve years, the action is not statute barred. There is yet another valid aspect and it is on whether the Limitation Law was pleaded. Counsel for the appellants relying on sections 6(2) and 7(2) of the Limitation Law, submitted that the subsection did not provide for pleading of the law as a pre-condition. With respect, that is rather preposterous and intangible. The submission challenges the provision of Rule 6 (1) of the High Court (Civil Procedure) Rule of Oyo State on the head. The sub-rule provides:

“A party shall plead specifically any matter for example performance release, any relevant statute of Limitation which if not specifically pleaded might take the opposite party by surprise”

Rule 6 (1) justifies the position of the court that a defence of Limitation must be specifically pleaded. The correct way of pleading the defence is to raise distinctly the particular statutory provision relied upon.

In Iheanocha v. Ejogu (1995) 4 NWLR (Pt.389) 324, the Court of Appeal held that the defence of Limitation must be specifically pleaded. The same decision was reached in Allen v Odubeko (1977) 5 NWLR (Pt.506) 638. As the Limitation Law was not specifically pleaded, by the defendants/appellants, they cannot rely on it as a defence.

There is still one aspect and it is the concurrent findings of facts of the two courts. The law is trite that the court cannot interfere with the concurrent findings of the High Court and the Court of Appeal unless they are perverse. I do not see any perversity in their findings.

It is for the above reasons and the more detailed reasons given by my learned brother, Ogebe, J.S.C in his judgment that I also dismiss the appeal. I abide by his order as to costs.

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SC.72/2004

West African Examination Council V. Akinola Oladipo Akinkunmi (2008)

LAWGLOBAL HUB Lead Judgment Report

TABAI, J.S.C.

This action was initiated at the Lagos Division of the High Court of Lagos State by way of a motion ex-parte filed on the 5th of October 1999. The applicant therein is the respondent in this appeal. The respondent therein is the appellant here. The application was brought under section 46(1) and (2) of the 1999 Constitution and Order 1 rules 2 and 3(1) of the Fundamental Rights Enforcement Procedure Rules, 1979. In the application, the respondent sought the leave of the court to bring an application for the enforcement of his fundamental right of fair hearing.

Leave was granted and pursuant thereto the respondent, on the 20th October, 1999, filed a motion on notice. The reliefs sought were:

“(i) A DECLARATION that the cancellation of the results obtained by the applicant in the May/June 1992 Senior School Certificate Examination by the respondent is illegal, unconstitutional null and void as same violates the applicant’s right to fair healing guaranteed by section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and Article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria, 1990.

(ii) AN ORDER quashing the decision of the respondent to cancel the said results and compelling the respondent to issue the applicant a certificate based on the said results.

(iii) AN ORDER compelling the respondent to furnish the admission office of University of Ilorin the purportedly cancelled results of the applicant in the said May/June 1992 Senior School Certificate Examination forthwith.

The application contained a 23 paragraph statements of facts to which were attached exhibits A, B, C and D. In opposing the application, the appellant filed a 30 paragraph counter affidavit to which were attached exhibits PEl, PE2, PE3 and PE4. The parties, through their counsel filed and exchanged written addresses. In its ruling on the 12th September, 2002 the application was granted by the trial court. Dissatisfied, the appellant went on appeal to the court below. By its judgment on the 8th April, 2002, the appeal was dismissed.

Still aggrieved, the appellant has come on appeal to this court. The appellant’s brief was prepared by Uche Ohadugha and it was filed on the 25/3/03. He also prepared appellant’s reply brief which

was filed on the 18/3/04. Mr. Jiti Ogunye prepared the respondent’s brief. Same was filed on the 5/6/03. The notice of appeal dated the 5th July, 2002 contained eight grounds of appeal. And from these grounds learned counsel for the appellant formulated the following four issues for determination.

1. Whether in the conduct and writing of the May/June, 1992 Senior School Certificate Examinations, the status of the respondent as “external candidate” was proper and/or allowed and whether the said status had any effect on the respondent in this transaction.
2. Whether the relationship that exists between the appellant and the respondent in the conduct and writing of the Senior School Certificate Examinations was contractual and which empowers the appellant to withhold and cancel results of any candidate(s) including that of the respondent who engaged in examination malpractices.
3. Whether an application for a declaration under the Fundamental Rights (Enforcement Procedure) Rules, 1979 that the cancellation of the respondent’s result in the May/June Senior School Certificate Examinations is illegal, unconstitutional and violates the respondent’s right to fair hearing under section 36 of the 1999 Constitution and Article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of, Nigeria, 1990 as the respondent was not heard, either orally or in writing before the cancellation can be maintained, sustained or resolved as a constitutional issue, in a case of examination malpractice against a candidate and in the face of the rules and regulations governing the conduct of the examinations.
4. Whether or not in the circumstances, there should be public policy considerations in arriving at a decision by the court.

Mr. Ogunye for the respondent identified the following three issues for determination.

1. Whether the cancellation of the result of the respondent in the May/June 1992 West African School Certificate Examination after the release of same to the respondent by the appellant on the ground that the respondent engaged in examination malpractice, is not illegal unconstitutional, null and void in view of the fact that the respondent was not accorded a fair hearing before the cancellation of the result
2. What is the nature of the relationship between the respondent and the appellant (whether the relationship between the respondent and appellant in the May/June 1992 West African School Certificate Examination which the respondent sat for was contractual and whether the undertaking by the respondent to abide by the rules governing the said examination when he registered for same empowered the appellant, while exercising its statutory disciplinary power and the West African Examination Council Act, Cap. 468, Laws of the Federation of Nigeria, 1990, to cancel the respondent’s result without regard to the respondent’s right to fair hearing under the Constitution and the African Charter on Human and Peoples
3. Whether the respondent’s complaint or claim against the cancellation and/or withdrawal of his Senior School Certificate Examination (S.S.C.E) result by the appellant could be validly brought by an application under the Fundamental Rights Enforcement Procedure) Rules, 1979 wherein the violation of section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 and Article 7 of the African Charter on Human and People’s Rights is being alleged

On behalf of the appellant, Chief Uche Ohadugha made the following submissions. With respect to the appellant’s issue one learned counsel distinguished two categories of candidates for the Senior School Certificate Examinations conducted by the appellant yearly. According to him, the first category are “SCHOOL CANDIDATES” who are final year students in a secondary school who are registered through and presented by the secondary school to the appellant specifically for the May/June edition of the Senior School Certificate Examinations. The second, according to counsel, are the PRIVATE CANDIDATES who apply individually and register with the appellant specifically for the November/December edition of the Senior School Certificate Examinations. It was the submission of learned counsel that the respondent, not being a final year student of the Atunrase Boys High School, Surulere, Lagos, was not qualified, in the first place, to be registered through and presented by the said secondary school to the appellant for the May/June 1992 Senior School Certificate Examinations. It was his final submission on this issue that the respondent cannot therefore be heard to complain, having exposed himself to the risk of non-qualification to so act and the consequences that ensued.

On the second issue, it was the submission of learned counsel for the appellant that there was a contractual relationship between the appellant and the respondent and that the rules and regulations which constitute the terms and conditions of the said contract are contained in the Standard Forms prepared and presented by the appellant to the candidates including the respondent who accepted to be bound by the said terms and conditions by filling and signing same. Counsel referred specifically to section B2(1) and (2) of the appellant’s rules and regulations and submitted that in view of the malpractices established in the respondent’s centre by the National Examinations Committee to which body the Principal of the Atunrase Boys High School Surulere also belongs, the appellant had the right to cancel the provisional result of the school including the result of the respondent. He submitted that W.A.EC. v. Mbamalu (1992) 3 NWLR (Pt.230) 481 is distinguishable from this case.

As regards the third issue, it was the submission of learned counsel that the rights sought to be enforced are common law contractual rights and not fundamental rights enforceable by recourse to the Fundamental Rights (Enforcement Procedure) Rules, 1979. It was the contention for the appellant that the mere fact of a declaratory relief would not elevate the cancellation of the result without a hearing to a constitutional right. The release or cancellation of the Senior Secondary Certificate Examination result relates and is limited to the parties contractual obligation and has nothing to do with the fundamental rights in the Constitution, counsel argued. On the meaning of the fundamental rights enshrined in the constitution, learned counsel relied on Peterside v. I.M.B. (Nig.) Lt. (1993) 2 NWLR (Pt.278) 712 at 731-734 and Ransome-Kuti v. A.-G.,of the Federation (2001) FWLR (Pt.80) page 1637 at 1709; (1985) 2 NWLR (Pt. 6) 211. According to counsel, the civil rights and obligations of the respondent exist independent of his entitlement to fair hearing and therefore the rights claimed are not constitutional rights to which the respondent is entitled.

On the 4th issue of whether there should be public policy considerations in arriving at a decision by the court, learned counsel referred to section l(i) of the West African Examinations Council Act, Cap. 468 of the Laws of the Federation of Nigeria, 1990 and submitted that in the performance of its duties in the conduct and review examinations and the award of certificates and diplomas, the appellant is bound to act in the interest of the public at large and for public good. He relied on Sonnar (Nig.) Ltd. & Anor. v. Partenreedri M.S. Norwind (1987) 9-11 SC 121 at 143; (1987) 4 NWLR (Pt. 66) 520. Counsel pointed out the uncontroverted fact that the whole school centre of the respondent’s Atunrase Boys High School cheated in the examination and submitted that an order for the revalidation of the respondent’s result would, by implication, mean an order for the revalidation of the entire school’s result and cautioned on the devastating repercussions of such a pronouncement. He urged in conclusion that the appeal be allowed.

On the 28/12/07, the respondent filed a notice of preliminary objection which is argued in pages 5-8 of the respondent’s brief of argument It was argued, in substance, that ground 3 of the 8 grounds of notice of appeal was neither raised in the High Court and Court of Appeal, nor covered by any issue or argument in the appellant’s brief and that the ground should therefore be deemed as having been abandoned. It was further argued that the appellant’s issue No.4 does not relate to nor rest on any ground of appeal and ought to be struck out. For these submissions learned counsel for the respondent relied on Dieli v. lwuno (1996) 4 NWLR (Pt.445) 622 at 633; Tukur v. Govt. of Taraba State (1997) 6 NWLR (Pt.510) 549 at 569; Okeke v. Oruh (1999) 6 NWLR (Pt.606) 175 at 192; Calabar East Co-Operative v. Ikot (1999) 14 NWLR (Pt.638) 225 at 247; Omo v. J.S.C., Delta State (2000) 12 NWLR (Pt.682) 444 at 454 – 455. It was further argued that ground 6 of the notice of appeal and appellant’s issues No. 1 and 4 are fresh points which do not flow from the judgment of the court below and having regard to the failure to seek and obtain the leave of court to raise and argue same, the ground and issues 1 and 4 based therein are incompetent. In support of this submission, counsel relied on Ajuwon v. Adeoti (1990) 2 NWLR (Pt.132) 271 at 283 – 284; Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 403 and 416, Olaniyi v. Aroyehun (1991) 5 NWLR (Pt.l94) 652 at 686; Global Trans Oceanico SA v. Free Ent. (Nig.) Ltd. (2001) 5 NWLR (Pt.706) 426 at 438 e.t.c and Order 6 rule 5(1) of the Supreme Court Rules, 1985 (as amended).

With respect to respondent’s first issue, the insistence of learned counsel for the respondent is that the cancellation of the respondent’s result on the ground of examination malpractice is not only a punishment for an academic wrong but also that a criminal offence has been committed. This cancellation on the ground of an alleged malpractice without the respondent being heard violates his fundamental rights of fair hearing, he argued. It was contended that in exercise of disciplinary powers against a candidate for examination malpractice, the appellant is acting in a quasi-judicial capacity, comparable to a domestic or administrative tribunal bound to observe the twin rules of natural justice – namely (i) audi alteram partem and (ii) nemo judex in causa sua – embodied in section 36(1) of the 1999 Constitution and Article 7 of the African Charter on Human and Peoples’ Rights. Reliance was placed on Saba v. N.C.A.T.C . (1991) 5 NWLR (Pt.192) 388 at 414 – 415; Oyeyemi v. Commissioner for Local Govt. Kwara State (1992) 2 NWLR (Pt. 226) 661 – at 678, WAEC v. Mbamalu (1992) 3 NWLR (Pt.230) 481. A further submission is that the cancellation of the result was also illegal. Learned counsel referred to the undisputed facts of the respondent’s use of the provisional result for admission into the University of Ilorin in October 1992 and the fact that he only became aware of the cancellation five years after in November 1997 and submitted that the appellant was, in the circumstances, caught by the doctrine of estoppel by conduct. Reliance was placed on Oyeyemi v. Commissioner for Local Govt. Kwara State (supra) and Ude v. Nwara (1993) 2 NWLR (Pt.278) 638 at 602-663.

The respondent’s second issue pertains to the nature of the legal relationship between the parties. Learned counsel for the respondent referred to Rule 2(6) of the appellant’s rules and regulations made pursuant to section 23(1) of the West African Examination Council Act and submitted that the rules are not common law rules of the law of contract. The legal relationship of the parties, it was argued, is statutory and reliance was placed on Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550. In response to the appellant’s argument that given the large number of candidates involved in the examination malpractice, it was impracticable to accord every candidate a hearing before the cancellation, it was the contention of the respondent that the rules of natural justice provided in the fair hearing provisions of the Constitution and the African Charter on Human and People’s Right cannot be circumvented on such flimsy grounds. Assuming (without conceding) that the legal relationship is contractual, counsel argued, it was a contract with statutory flavour similar to that in Garba’s case and under which any punishment by way of cancellation of result must be preceded by due process.

For the third issue of the respondent, learned counsel referred to what he described as a fundamental concession of the appellant at the court below to the effect that the action could well be brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979 and submitted that the Court of Appeal did no more than upholding that position. It was argued that once the respondent claims that he was punished without the opportunity of being heard, he has raised the issue of natural justice and his fundamental rights under section 36 of the Constitution and for which protection he rightly initiated the action via the Fundamental Rights (Enforcement Procedure) Rules. In conclusion, counsel urged that the appeal be dismissed.

In the appellant’s reply brief, the following arguments were proffered. With respect to ground 3 of the notice of appeal the short answer was that it was not argued. On the appellant’s issue one, learned counsel for the appellant referred to paragraphs 9 and 11 of the facts in support to the application and paragraph 24 of the counter affidavit and submitted that the issue of “School Candidates” for May/June Senior School Certificate Examinations and that “External Candidates” are not allowed for the May/June examinations was raised at the High Court, Counsel further referred to the briefs of the parties at the court below and argued that the issue was also raised and argued but that it was not considered in its judgment. It was further contended that the issue of public policy raised and canvassed both in the High Court and the court below.

Let me first dispose of the preliminary objection. Ground 3 of the grounds of appeal was not argued and so that takes care of itself. With respect to the arguments about public policy and public good, I am persuaded by the argument of the respondent that there is no ground of appeal on which it is predicated. I would therefore discountenance all the arguments on the appellant’s issue four. It is also my view that the arguments about whether the relationship between the pm1ies is contractual or statutory are not quite relevant to the proper determination of the appeal. I would for that reason also discountenance the lengthy arguments in that respect. Having disposed of the points raised in the preliminary objection let me proceed to deliberate on the issues raised in the appeal. From a careful examination of the issues formulated by the parties, it appears to me that the respondent’s issues one and three sufficiently determine the appeal. The respondent’s issue three is, in substance, the same as the appellant’s issue three. The issue is that of competence and jurisdiction and should, of necessity, be accorded priority of consideration for the obvious reason that resolution of same in favour of the appellant renders the suit liable to be struck out for incompetence.

The issue is whether, having regard to the reliefs claimed, this action is validly brought by way of an application under the Fundamental Rights (Enforcement Procedure) Rules, 1979.1 have earlier, in this judgment, noted in substance the rather sustained argument of Chief U. Ohadugha for the appellant to the effect that the relationship between the parties is contractual which clear terms constitute the rules and regulations of the appellant and to which the respondent accepted to be bound; and that an action emanating therefrom can only be initiated by the issuance of a writ of summons and not through an application as was done in this case. He cited some authorities on the guiding principles which I have also noted above.

The settled principle is that in ascertaining the justice ability or competence of a suit commenced by way of an application under the Fundamental Rights (Enforcement Procedure) Rules, 1979, the court must ensure that the enforcement of the fundamental rights under Chapter IV of the Constitution is the main claim and not the ancillary claim. Where the main or principal claim is not the enforcement of a fundamental right, the jurisdiction of the court cannot be said to be properly invoked and the action will be liable to struck out for incompetence. In Tukur v. Government of Taraba State (1997) 6 NWLR (Pt.510) 549, this court per Ogundare, J.S.C. at page 576-577 gave effect to this principle when he stated:

“The primary complaint of the appellant in the whole case was his deposition as the Emir of Muri; the alleged breaches of his fundamental rights to fair hearing, Iiberty and freedom of movement were merely accessory to his primary complaint. The proceedings by way of the Fundamental Rights (Enforcement Procedure) Rules, are inappropriate in the circumstances. The appellant herein ought to have come by way of a writ of summons …. ”

Applying the same principle, Belgore, J.S.C. (as he then was) at page 578 said:

“This matter was taken to the trial court on a wrong vehicle instead of a writ of summons designed for initiating an action it was started with a motion on notice under Fundamental Rights Procedure under the Constitution. The crux of the complaint in the trial court, however is as to whether the plaintiff was lawfully deposed as the Emir of Muri, but was cloaked under Fundamental Rights. Since the main procedural approach at the trial court was incompetent, no relief could flow from it.”

In Egbuonu v. Bonjo Radio Television Corporation (1997) 12 NWLR (Pt.531) 29, this court applied the same principle. Invoking the principle, this court per Kutigi, J.S.C. (as he then was) a page 40 stated:

“In this appeal the claims are partly for wrongful dismissal or termination of appointment and partly for breach of fundamental right. But here, as in Tukur the principal claim being wrongful termination of appointment which ought to have been commenced by a writ of summons which was not, then all the claims, principal and subsidiary which flow directly from it, are incompetent and ought to be struck out. That was what the Court of Appeal did in this case. I believe it was right.”

In his own contribution Ogundare, J.S.C. at page 42 said:

“Having regard to the claims of the appellant set out in the judgment of my learned brother and the affidavit evidence adduced at the trial, there can be no doubt that his main complaint was against the termination of his appointment with the respondent (which he regarded as wrongful) and his sole relief was his reinstatement. All these are not matters for the procedure provided for in section 42 of the 1979 Constitution. Appellant’s action should have been commenced by a writ of summons as provided for in the High Court Rules of Borno State. The action having been thus commenced wrongly, it was rightly struck out by the court below.”

This principle was applied with equal force in Sea Trucks (Nig.) Ltd. v. Anigboro (2001) 2 NWLR (Pt.696) 159 at 182.

The question now is whether the principle in these cases applies to this case as to render the suit liable to be struck out for incompetence. It is settled law that in ascertaining the competence of a suit, the determining factor is the plaintiff’s claim. On this question however, it is not the manner in which the claim is couched that matters. Nor is the categorization given to the claim by the defendant that counts. The court has a duty to carefully examine the reliefs claimed to ascertain what the claim is all about. I have earlier reproduced the three reliefs claimed in this action. The first relief seeks a declaration that the cancellation of the respondent’s May/June 1992 Senior School Certificate Examination result by the appellant is illegal, unconstitutional, null and void as it violates the respondent’s right of fair hearing. The 2nd and 3rd reliefs claim an order compelling a reversion of the appellant’s cancellation of the respondent’s result, revalidation of the result and furnishing the admissions Office University of llorin with revalidated result.

The trial court held the view that the suit was rightly brought under the Fundamental Rights (Enforcement Procedure) Rules of the 1979 Constitution and proceeded to grant the reliefs claimed. The Court of Appeal in its reaction endorsed the position of the trial and concluded:

“I agree with this view. It is correct, for once it is accepted that the respondent having received a punishment (that is by the cancellation of examination result) by the appellant, an administrative body without hearing, it becomes incontestable that the Fundamental Rights (Enforcement Procedure) Rules can be invoked to seek legal redress ….”

The court’s reasoning was predicated entirely on the assertion in the first relief about there being breach of the respondent’s natural justice and his fundamental rights of fair hearing under the constitution. That approach was, with respect rather superficial. The court was bound to carefully examined reliefs claimed to see what the claim is all about. A careful examination of the three reliefs shows clearly that although the first relief claims a declaration that the cancellation was a breach of the respondent’s right of fair hearing and therefore unconstitutional, the main claim is the order for restoration of the cancelled result and making same available to the University of Ilorin for his graduation. Thus, the mere assertion of the violation of the respondent’s constitutional rights of fair healing does not necessarily make the action maintainable by recourse to the Fundamental Rights (Enforcement Procedure) Rules. The court has to examine the reliefs closely to ascertain what the plaintiff claims. On a thorough scrutiny of the reliefs claimed, it is my view that the principal and ultimate claim is the restoration of the cancelled result of the respondent for the purpose of its use for his graduation. And on the authority of Tukur v. Government of Taraba State (supra) and others which I have discussed above, this suit ought to have been initiated by a writ of summons where the parties could have filed and exchanged pleadings and evidence adduced and tested on the issue about the propriety or otherwise of the appellant’s cancellation of the respondent’s result. In the 30 paragraph counter affidavit of the appellant, for instance, the appellant raised issues about the respondent’s status as “an external candidates” and matters incidental thereto, whether or not she had any duty for direct communication with the respondent etc. These are not issues that can be effectually tried and resolved by affidavit evidence.

For the foregoing reasons, I hold that this action initiated under the Fundamental Rights (Enforcement Procedure) Rules is incompetent and is, for that reason, liable to be struck out. The result is that this issue of competence and jurisdiction is resolved in favour of the appellant and which effectually determines the appeal. And having come to this conclusion, it serves no useful purpose to go into the second issue.

In conclusion, I hold that this appeal succeeds. The judgment of the trial court affirmed by the Court of Appeal be and is hereby set aside. In its place is substituted judgment striking out the suit for lack of competence and jurisdiction. In view of the peculiar circumstances of the respondent, I make no orders as to costs.

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SC.337/2002

Chief N. P. Ugboaja V. Sodolamu Akitoye-sowemimo & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN. J.S.C.

This is an appeal against the judgment of the Court of Appeal holden at Lagos in appeal NO. CA/L/136/98 delivered on the 30th day of April, 2001 in which the court struck out the appeal of the appellant against the judgment of the High Court of Lagos State in Suit No. ID/7307/90 delivered on the 21st day of November, 1996.

By a writ of summons filed on the 20th day of November, 1990, the original respondent claimed against the appellant as follows:-

“(i) Declaration that he is the registered proprietor of the parcel of land situate at 41, Ogundana Street, Off Allen Avenue, Ikeja, Lagos State or in the alternative is entitled to certificate of occupancy of the said parcel of land by virtue of a Deed of Conveyance registered as No. 48 in Volume 48 at page 1482 in 1975 in the Lagos Lands Registry.

(ii) N50,000.00 (fifty thousand naira) as damages for trespass on the said land.

(iii) Perpetual injunction to restrain the defendant from further trespass on the said land”.

It is the case of the respondent that he acquired a large piece of land including the land in dispute from one A. T BAKARE whose title to the land was confirmed by the Supreme Court in Suit NO. SC/121/74 between: A.T Bakare vs Owodina & Ors and a deed of declaration registered in favour of the said respondent’s predecessor in title as No. 50 at page 50 in Volume 1072 at the Lagos State Lands Registry, Lagos, which said title was again confirmed by the Supreme Court in another case, to wit, Suit No. SC/528/98 between Olowolagba & Ors vs R. A Bakare (1998) 3 NWLR (Pt. 643). The respondent stated that he had leased portions of the large parcel of land so acquired to third parties who developed their respective portions without let or hindrance; that the piece or parcel of land now in dispute between the parties forms part and parcel of the large piece or parcel of land acquired from the said A. T Bakare.

On the other hand, it is the case of the appellant as stated in his pleading that the land in dispute belongs to him tracing his title thereto to one S. A Bamisille as evidenced in a deed of conveyance dated the 16th day of October, 1975 and registered as No. 10 at page 10 in Volume 1528 in the Lagos State Lands Registry, Lagos, and the deed of assignment dated 7th June, 1983 and registered as No.74 at page 74 in Volume 1866 in the Lagos State Lands Registry, Lagos.

Both parties filed their pleadings, pleading the above facts. The respondent, as plaintiff, testified in support of his case and called two witnesses. On the 27th day of September, 1996, the plaintiff closed his case and the matter was adjourned to the 9th day of October, 1996 for defence to open.

When the case came up for defence on the said date, learned counsel for the defendant/appellant, Chief O. O. Ajala applied for an adjournment on the ground that:-

(1) he had a matter before the Supreme Court in Abuja and,

(2) he had filed an application for further direction on the 20th day of September, 1996 which application was fixed for hearing on 21/10/967.

It should be noted that the application for further direction was filed the same day the plaintiff closed his case and was not fixed for hearing on the date the defence was to open but about two weeks thereafter. The plaintiff’s counsel was opposed to the application for adjournment and requested the court to close the case of the defendant appellant as a result of which the trial judge ruled as follows:-

” I am of the view that the defendant has been given an opportunity to be heard and he is not interested (sic) in the utilization of that opportunity. In the circumstances, the case of the defendants shall be closed and it is hereby closed for his lack of interest in prosecuting his defence. Accordingly I so rule, case adjourned till 16th October, 1996 for address”.

The learned counsel for the plaintiff however addressed the court on the 24th day of October, 1996 in the presence of O. O. Ojo Esq, learned counsel for the defendant appellant at the conclusion of which address Mr. Ojo made no reply neither did he make any application to that court for anything. The matter was then adjourned to the 8th day of November, 1996 for judgment, which judgment was eventually delivered on the 21st day of November, 1996. Meanwhile, the defendant appellant never appealed against the ruling of the court made on the 9th day of October, 1996 closing the case for the defence.

On the 21st day of November, 1996, the trial court delivered its judgment in favour of the plaintiff/respondent and granted all the reliefs claimed, The appellant was dissatisfied with the judgment and appealed to the Court of Appeal, holden at Lagos on a notice of appeal containing the following ground and particulars:-

“Grounds Of appeal

The learned trial judge misdirected himself, by closing the case of the defendant,and giving judgment for the plaintiff, without hearing the other side, who has filed a further Statement of Defence, and counter claim on the suit,

Particulars

1. There were abundant documents before the trial court, that the defendant has filed a Motion on Notice for further direction, and a letter for an adjournment which the learned trial judge rejected, when my solicitor, was before the Supreme Court, Abuja for an urgent application.
2. That the order to (sic) the Honourable Court made on the 9th day of October, 1996, refusing the letter for an adjournment, and/or failing to give the notice of further direction dated 27/9/96, an accelerated hearing, were made Not in the interest of justice. ”

It should also be noted that out of the above ground of appeal, the learned counsel for the appellant formulated two issues for determination by the lower court The issues are as follows:

“(i) Whether the appellant was given a fair hearing in the circumstances of this case by the learned trial judge.

(ii) Whether the learned trial judge was right in giving judgment in favour of the respondent herein”.

In considering the appeal, the lower court held as follows:-

” It is easy to deduce from the above ground of appeal that the complaint of the appellant concerns the refusal of the lower court to grant the adjournment which the appellant’s counsel has sought from the lower court on 9/10/96. The Notice of Appeal however, was directed against the judgment of the lower court delivered on 21/11/96. Nothing in the grounds of appeal can be construed as directed against the contents of the judgment of the lower court. In the interest of justice, I ought to consider this appeal as directed against the ruling delivered on 9/10/96.

However, the ruling of 9/10/96 was an interlocutory decision of the lower court against which the defendant could only appeal with the leave of this court or the court below unless the ground of appeal is on law alone. Further, the appeal ought to be brought within 14 days unless an extension of time was sought and obtained. The ruling of the lower court was given on 9/10/96. The appeal was filed on 25/11/96. No leave was obtained, if one was required. and in any case, no extension of time to appeal was sought or obtained.

Accordingly, this appeal is incompetent. It is struck out with N5, 000.00 (five thousand Naira) costs to the respondent “.

It is against the above judgment that the present appeal has been lodged in this court, the grounds of which are stated in the Notice of Appeal filed on the 27th day of July, 2001 as follows.

Grounds of appeal

(i) The appellant appealed against the final judgment of the trial court, B. 0 Martins J (Rtd) and NOT an appeal on the ruling of the trial court, dated 9/10/96. Tersely put, the appellant did NOT file an interlocutory appeal as assumed by the lower court in paragraph 2,page 3 of the judgment .

(ii) The lower court misdirected itself, when its decision, was based on an interlocutory Appeal, which the appellant did not ask for.

Particulars of Misdirection:

a. The Notice of Appeal, filed at the lower court, shows clearly that the appeal is on a final judgment of the trial court. The appellant appealed on FAIR HEARING.

b. The brief of argument for the appellant, on the respondent, were based on the Final Judgment of the trial court and on Fair Hearing.

c. The lower court, went on a frolic of its own, when assumption took over the direction of the learned justices of the Court of Appeal. The lower court, made ,an appeal, for the appellant, and gave judgment, on what the appellant, did not ask for.

d. The case for the appellant at the lower court, is that the trial court did NOT hear the summons for further directions, to end the statement of defence, before he could open his case. Despite the refusal by the trial (sic) court, the facts in the proposed statement of defence were used in his judgment.

e. The briefs of argument, of both the appellant and the respondent were on FINAL APPEAL. The lower court erroneously abandoned the appeal, and struck it out, with five thousand naira (N5,000.00) cost, in favour of the respondent, on interlocutory appeal. The costs had been paid by the appellant. See the brief of argument, in the (sic) lower court’s RECORD OF APPEAL “.

It should be noted that learned counsel for the appellant appears to be very much in love with the punctuation sign of comer which he deploys randomly and lavishly in the drafting of the above grounds of appeal.

However, out of the above grounds of appeal, learned counsel for the appellant Chief O. O. Ajala has formulated two issues for the determination of the appeal in the appellant’s brief of argument filed on the 14th day of June, 2002. The issues are as follows:-

” 4.01 Whether the appellant appealed, on a final judgment or the appeal is an interlocutory appeal. To determine the effect of such judgment, on the appellant.

4.02 Whether there is a misdirection of facts and law, at the lower court leading to the lower court’s judgment, giving to the appellant, what the appellant did Not ask for, from the lower court, and to pronounce, on the validity of the judgment of the lower court”.

On the other hand, learned counsel for the original respondent, F. 0 AKERELE Esq, in the respondent’s brief of argument filed on 6/3/07 identified a single issue for the determination of the appeal. The issue posited thus:-

” Whether Notice of Appeal filed by the appellant at the lower court which was directed against the judgment of the trial court, did by its Grounds of Appeal raise (sic) any complaint against the judgment of the trial court which could have been considered by the Court of Appeal”.

At this stage, it is necessary to mention that the learned counsel for the original respondent filed a notice of preliminary objection against the grounds of appeal on the 18th day of March, 2003 and followed same up with arguments thereon in the respondent’s brief filed on 6/3/07 and adopted in the argument of this appeal. It is his contention that the appeal is incompetent on the ground that:-

(i) Though the appellant’s Notice of Appeal dated 11th day of July, 2001 is directed against the judgment of the Court of Appeal delivered on 10th day of April, 2001 and there is no ground of appeal which can be construed as directed against the judgment of the Court of Appeal i.e. the grounds of appeal are not relevant to the decision appealed against and are founded upon a lack of comprehension of the Court of Appeal.

(ii) Neither of the two grounds of appeal raised by the appellant is a ground of law which would entitle the appellant to appeal to this court without leave of the lower court or the Supreme Court.

(iii) The issues for determination in this appeal as formulated by the appellant are not relevant to the judgment appealed against and are not consistent nor related to the grounds of appeal filed as they are constructed upon a lack of comprehension of the judgment of the Court of Appeal and the issues in no way represent the appellant’s notice of appeal dated 17th day of July, 2001, though it is directed against the judgment of the Court of Appeal delivered on the 30th day of April, 2001, there is no grounds of appeal which can be constructed as directed against the judgment of the Court of Appeal.

It is the contention of learned counsel for the respondent that the grounds of appeal are not relevant to the judgment appealed against; that the two grounds of appeal are grounds of fact or at best mixed law and facts for which the appellant needed the leave of either the lower court or of this court before appealing thereon; that the appellant neither sought nor was granted leave by either court to so appeal on facts or mixed law and fact, and submitted that for that reason the appeal is incompetent and liable to be struck out, relying on Nyambi vs Osadion (1997) 2 NWLR (Pt. 485) 1; Maigoro vs Garba (1999) 10 NWLR (Pt. 624) 555 at 557-561. It is the further submission of learned counsel that the issues formulated for determination do not fall within the parameters of the grounds of appeal which grounds are, in any event, not directed at the judgment of the lower court, and urged the court to strike same out, relying on Agrochemicals (Nig) Ltd vs Kudu Hold (Nig) Ltd (2000) 15 NWLR (Pt. 691) 493.

The learned counsel for the appellant filed no reply brief from which he could have replied to the issues raised and canvassed on the preliminary objection. Though it is settled law that where a party fails or neglects to react to an issue in contention between the parties, the party in default is deemed to have conceded the point/issue to his opponent, I will however, proceed to consider the objection on its merit.

I had earlier in this judgment reproduced the two grounds of appeal in this appeal and the particulars in full. It is settled law that where a ground(s) of appeal is/are of fact or mixed law and fact, the appellant must obtain the leave of either the court that gave the decision against which the ground(s) is (are)raised or of the appellate court. In the instant case, if the ground(s) of appeal is/are of fact or mixed law and fact, the appellant is expected, by the provisions of Section 233(3) of the constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as the 1999 Constitution) to obtain the leave of either the Court of Appeal or the Supreme Court. There is no evidence on record that the appellant did seek and obtain the said leave. That is therefore not in issue. What is in issue is whether the grounds or any of the grounds of appeal is of fact or mixed law and fact so as to make it necessary for the appellant to seek and obtain the leave of court before filing the appeal.

Looking at the grounds of appeal particularly ground 2 together with its particulars, it is very clear that the said ground is clearly a ground of mixed law and facts. It is not a ground of law which requires no leave. It is settled law that in order to determine the nature of the ground of appeal, one must look closely at the main ground together with the particulars thereof to see whether it is a ground of law, fact, or mixed law and fact. It is therefore, not enough for counsel for the appellant to brand a ground of appeal a ground of law to make it one. It is also settled law that a ground of appeal is the totality of the reasons why the decision complained of is considered wrong by the party appealing, On the other hand, a question of law or grounds of law can be said to have three meanings, to wit:-

a) a question the court is bound to answer in accordance with a rule of law, the process of answering of which question the court would exercise no discretion in whatever manner; it is a question pre-determined and authoritatively answered by the law,

b) the second meaning is as to what the law is; an appeal in which the question for argument and determination is what the true rule of law is on a certain matter which question usually arises out of the uncertainty of the law;

c) the third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only; that is any question which is within the province of the judge instead of a jury is a question of law, even though in actual sense it is a question of fact, Within this meaning can be identified the interpretation of documents, which is often a question of fact, but is within the province of the judge.

In addition to the above is the determination of the reasonable and probable cause for a prosecution in the tort of malicious prosecution, which is one of fact, but is a matter of law to be determined by the judge – See Anoghalu vs Oraelosi (1999) 13 NWLR (Pt. 634) 297.

A “question of fact” also does not have one meaning as it may mean:-

(i) a question which is not determined by a rule of law;

(ii) any question except the question as to what the law is; and.

(iii) any question that is to be answered by the jury rather than the Judge, is a question of fact – See Anoghalu v. Oraelosi (supra).

In determining whether a ground of appeal is of law or fact or mixed law and fact, the court is to be guided by the following principles:-

(a). where the court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based, such a ground is of mixed law and fact;

(b) a ground which challenges the findings of fact made by the trial court or involves issues of law and fact can only be argued with the leave of the appellate court;

(c) where the evaluation of facts established by the trial court before the law in respect thereof is applied is under attack or question, the grounds of appeal is one of mixed law and fact;

(d) where the evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact, and;

(e) a ground of law arises where the ground of appeal shows that the court of trial or appellate court misunderstood the law or mis-applied the law to proved or admitted facts.

When one looks closely at ground 1 of the grounds of appeal, it is very clear that it is also a ground of fact. In fact strictly speaking, ground 1 as couched by the learned counsel for the appellant is no ground of appeal at all as it contains no complaint or question or challenge against the judgment of the lower court. I have to once more state that a ground of appeal is the totality of the reasons why the decision appealed against is considered wrong in law or fact or a mixture of both law and fact. In ground 1, the appellant stated what the lower court held in the form of a statement of fact without stating whether the lower court erred in law or misdirected itself on the facts. At the pain of repetition, I hereby reproduce the said ground 1, once more:-

“i) The appellant appealed against the final judgment of the trial court, B. A. Martins J. (Rtd), and NOT an appeal, on the ruling of the trial court, dated 9/10/96.

Tersely put, the appellant did NOT file, an interlocutory appeal, as assumed by the lower court in paragraph 2, page 3 of the judgment”.

Applying the above principles to the grounds of appeal in the instant appeal, it is obvious that the ‘complaint’ of the appellant on grounds 1 and 2 together with the particulars thereof are grounds of fact or at best mixed law and fact for which the leave of either the lower court or of this court must first be sought and obtained before such ground(s) of appeal can be competent. In the instant case and as had earlier been found and held in this judgment, the appellant neither sought nor obtained the leave of the court below nor of this court as a result of which the said grounds are incompetent and liable to be struck out. I order accordingly. With the grounds of appeal gone, there is nothing to support the notice of appeal in the instant case.

Appeal is therefore struck out for being incompetent with N50,000.00 (fifty thousand naira) costs against the appellant and in favour of the respondent.

---

SC.324/2001

Chief S. O. Agbareh & Anor V. Dr. Anthony Mimra & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

The 2nd respondent-a German company, appointed the 2nd appellant, as its only agent for the purpose of procuring contracts for the installation of traffic lights in the Federal Capital Territory, Abuja (traffic light project). Both parties, entered into a written agreement dated 30th November, 1992 and 1st December, 1992 respectively. (See pages 111 to 115 and 116-119 of the records). The two agreements, provided for arbitration in respect of any dispute that may arise between the parties relating to the interpretation of the said agency agreements (see clause 18). By the two agreements, the 2nd respondent, agreed to pay the 2nd appellant, a remuneration of 35% (thirty-five percent) of the contract price procured by the 2nd appellant.

The 2nd appellant, procured contracts from the Federal Capital Development Authority (hereinafter called “the FCDA”) and especially, the contract for the installation of traffic lights at 64 junction, Abuja which was for the sum of N176,839,780.00 (One hundred and seventy six million, eight hundred and thirty-nine thousand, seven hundred and eighty naira) which was later reviewed upwards to N505.779,424.50 (Five hundred and five million, seven hundred and seventy-nine thousand, four hundred and twenty-four naira, fifty kobo) less withholding tax and vat. The FCDA, was to effect payment in four installments. The 1st installment of the sum of N70,735.912.00 (Seventy million, seven hundred and thirty-five thousand, nine hundred and twelve naira), was paid by the FCDA. In terms of or in compliance with the said agreements, the 2nd respondent, paid the 2nd appellant, the sum of N24,757,569.20 (Twenty-four million. seven hundred and fifty-seven thousand, five hundred and sixty-nine naira twenty kobo).

A dispute later arose between the patties as a result of concealing from the 2nd appellant of relevant documents and the payment by the FCDA of the pending sum of N439,090,342.80 (Four hundred and thirty-nine million, ninety thousand, three hundred and forty-two naira eighty kobo) viz AIE NO. BD/398/96. Clauses 3 and 4 respectively of the agreements, had provided thus:-

“The company (i.e. the 2nd respondent) shall give to the agent (i.e. the 2nd appellant) copy of every letter and or agreement in relation to any contract procured by the agent.”

In other words, the dispute was whether the 2nd appellant, was entitled to any further payments of the said agreed remuneration. The 2nd appellant, took out a suit at the High Court of Lagos in suit LD/2992/96 against the 1st and 2nd defendants and the Central Bank of Nigeria, claiming the following reliefs:

(1) Specific performance of the terms and conditions by the defendants of the agreement dated the 30th day of November, 1992 and the supplemental agreement dated the 1st day of December, 1992 between the plaintiffs and the defendants.

(2) An order for a clean account of contracts in respect of all the traffic lights contract at phase 1 and phase II, Abuja.

(3) Payment over to the plaintiff of all outstanding sums found due to the plaintiffs in accordance with the said agreement and INTEREST thereon at the current Central Bank of Nigeria rate per annum until the commission and remuneration due is fully paid up to the plaintiffs.

(4) An order directing the defendants to give to the plaintiffs a copy of every letter, agreement and document in relation to the contracts procured by the plaintiffs.

(5) INJUNCTION restraining the defendants by themselves, servants, agents, privies or any person by whatever name so called from disturbing, depleting and/or withdrawing any sum of money already collected or to be collected by the defendants from the Federal Capital Development Authority, Abuja in respect of Abuja traffic lights installations subject matter of this action and/or lodged in any of the bank accounts maintained or operated by the defendants without paying the commission due to the plaintiffs in accordance with the terms and conditions of the agreements between the parties dated 30/11/92 and 1/12/92 respectively.”

It need be stated that the 2nd respondent did not file any process, but agreed to settle the matter amicably out of court. In consequence, terms of settlement, were agreed upon, prepared and signed by the parties and their respective counsel and subsequently filed in court, consent judgment was entered by Famakinwa, J, for case of reference, the said judgment which appears at page 20 of the records, read inter alia, as follows:

“…By consent judgment is hereby entered in favour of the plaintiffs against the defendants (sic) in the following terms:-

(1) That the agreement dated the 30th day of November; 1992 and supplemental agreement dated 1st day of December, 1992 is between plaintiff and the 2nd defendant and are only binding on them.

(2) That the 1st plaintiff and 1st and 3rd defendants are not parties to this agreement referred to in (1) above and should not be parties to this agreement.

(3) That the 2nd defendant has always performed its obligations under the agreement and see no reason for this process.

(4) That the 2nd plaintiff in accordance with the terms of the agreement shall be paid 35% share of the current cheque being expected by the 2nd defendant as per the AIE (Authority to Incur Expenditure) No. BD/398/1996 dated the 2nd August, 1996.

(5) That the above payment be made within 7 days after the crediting of the amount to the account

of justice when they failed to consider the issues for determination raised and argued by the appellants (as respondents before the Court of Appeal) arising from the grounds of appeal filed before the Court of Appeal when the presiding Judge (sic) stated thus:

“The judgment creditor also formulated four issues for determination but I shall be guided in this judgment by appellant’s issues for determination.”

“GROUND THREE:

The learned Justices of Appeal (sic) misdirected themselves on the facts when they only pronounced on clause 4 of the consent judgment rather than reading, interpreting (sic) the consent judgment as a whole document and particularly clause ONE thereof which stated that parties are bound by the two agreements of 30/11/96 and 1/12/96 respectively.

GROUND FOUR:

The judgment is against the weight of evidence.”

Observation

It is noted by me that in the said notice of appeal dated and filed on 18th May, 2000 under the “part of the decision of the lower court complained of’, the sum of the 3rd C.V. payment, is stated to be N71,162,243.32 while under GROUND ONE and its No.1 “particulars of misdirection”, the sum is stated to be N71,162, 943.32. But under “relief sought”, from this court, the sum stated, is N71,169,942.32k. This is really, with respect, not only confusing, incorrect and indeed, very disgusting to me.

The appellants have formulated two (2) issues for determination, namely:-

“ISSUE ONE

Whether having regards to the agreement dated 30/11/92 and 1/12/92 between the 2nd appellant and the 2nd respondent under which various payments have been made relating to the traffic light project and realizing that the two said agreements were the pivot in the consent judgment of 1/11/96 between the parties, the Court of Appeal was right in isolating clause 4 or the consent judgment for decision on the ground that the word “current” therein referred only to the 2nd payment embodied in the said consent judgment and that the 2nd appellant was not entitled to the payment of 35% N71,169,943.32 being the 3rd C.V. payment for the installation of traffic lights at Abuja even though Parry Osayande and Parry Blue Chips had been paid by the 2nd respondent out of the 3rd C.V. payment.

ISSUE TWO

Whether there is breach of the provision of rules 10 and 26 of the Rules of Professional Conduct in the Legal Profession (sic) published in the Federal Republic of Nigeria Official Gazette No.5 of 18th January, 1990 Volume 67 by Messrs. Kehinde Sofola & Co. who acted for the 2nd appellant and others in settlement at a stage of the dispute among the parties for which he was paid N500,000.00 as legal fees by the 2nd appellant in connection with the execution of the installation of traffic light project at Abuja the subject matter of this appeal.”

On its part, the 1st and 2nd respondents, have formulated what they describe as “the only competent issue that can rightly arise from the appeal of the appellants … It reads thus:-

“Whether the Court of Appeal was right when it held that the sum of N71,169,943, (sic) later paid to the 1st and 2nd respondents by the Federal Capital Development Authority (after the appellants had been paid 35% share of the current cheque) being expected as per paragraph 4 of the consent judgment does not form part of paragraph 4 of the consent judgment of 1st November 1996,

When this main appeal and the cross appeal of the 3rd respondent/cross appellant came up for hearing on 16th October, 2007, the appellants and their learned counsel, were absent without any reason brought to the attention of the court. However, the clerk of court, informed the court that the learned counsel for the appellants- one Oji Esq. was in court on 17th October, 2006, when this instant appeal was adjourned to 16th October, 2007 for hearing. That in spite of this fact hearing notices, were also sent out to the parties on 6th November, 2006.

Kayode Sofola Esq. (SAN) – learned counsel for the 1st and 2nd respondents, with him Ikolodo (Miss) told the court that the appellant brief dated 11th June, 2001, was filed on 12th June, 2001 and that they also filed a reply brief on 27th May, 2004. That the appellants’/cross respondents’ reply brief to the cross appellant’s brief, was filed on 6th October, 2004. He also referred the court to the appellants’/cross respondents’ brief to the cross appellant’s brief filed on 11th May, 2005. The learned SAN also told the court that the 1st and 2nd respondents, filed their brief on 18th February, 2004 and their brief in response to the 3rd cross appellant’s/respondent’s brief on 27th September, 2004. He adopted their two (2) briefs and urged the court to dismiss the appeal.

Learned counsel for the 3rd cross appellant – Ezekwueche. Esq. told the court that they did not file any brief in respect of the main appeal, but that they filed a brief in respect of their own cross appeal, on 5th September, 2002 and the cross appellant’s reply brief on 14th January, 2005. He adopted the said briefs and urged the court, to allow the 3rd respondent’s/cross appellant’s appeal. He stated that he represents the garnishee and that they want the court to make an order that whosoever wins, should collect the money from his client. He however, stated that the garnishee order, has been set aside.

Query – As a result of the Court of Appeal judgment

Pursuant to order 6 rule 8(6) of the rules of this court (as amended in 1999), the appeal of the appellants, was treated as having been argued and will be considered as such. Judgment was thereafter, reserved till today.

Before going into the merits of this appeal, I wish to further observe that it appears to me, with the greatest respect, that no seriousness and diligence, were also employed/exhibited in the preparation or vetting of the appellants’ brief of argument. This is worrisome and regrettable. At page 1 thereof, under

INTRODUCTION/STATEMENT OF FACTS – first paragraph, it is therein stated inter alia:-

“By an agreement …. between the 2nd appellant and the 2nd respondent, the 2nd appellant (instead of the 2nd respondent appointed the 2nd respondent (instead of the 2nd appellant) as the only agent….Abuja.”

See and compare with the immediate paragraph after CLAUSE 12. Reading down the said page 1 in what I regard as paragraph 6, the following appears:

“From the 1st installment of N70,735,912.00 the 2nd appellant was paid N24,757,569.20 by the 2nd appellant (instead of 2nd respondent) being 35% of the said sum.”

At page 3 thereof, the calculation of the amounts paid, are erroneous and misleading. For instance, where the figure/amount of N314,572,275.66 should have been stated, what appears at the first paragraph is N314,572.66 which is stated to be “out of the sum of N439,090.342.80 stated on the no. BD/398/96 leaving a clear balance of N124,518,067.14 outstanding yet to be paid to 2nd respondent.”

At page 11 thereof – first paragraph, it is stated inter alia, thus:

Immediately after the consent judgment, the FCDA however was only able to pay N314,572,276.66 as 2nd CV payment and the 2nd respondent paid N110,100,296.50 to the 2nd respondent (instead of the 2nd appellant) leaving a balance ….to the 2nd appellant.”

At the said page 11 of the brief, in paragraphs 3, 4 and 5, what appears throughout, is stated to be N71,743.32 (instead of N71,169,942.32).

Lastly, the said issues of the parties, were not related to any of the grounds of appeal. In my respectful view, only one issue is relevant in the determination of this appeal – namely issue ONE of the appellants and the lone issue of the 1st and 2nd respondents which arise from grounds 1, 3 and 4 of the grounds of appeal.

Since no issue was raised by any of the parties in their respective briefs in respect of ground two of the grounds of appeal, I will ignore/discountenance it and accordingly, strike out the ground, on the settled law and practice of the appellate courts firstly, that the courts consider only the issues and not the grounds of appeal. See the cases of Salibu v. Yassin (2002) 4 NWLR (Pt.756) 1, (2002) 2 SCNJ 14 at 24 and Ezemba v. Ibeneme & Anor. (2004) 14 NWLR (Pt.894) 617 (2004) 7 SCNJ 136 at 155-156. Secondly, a ground of appeal, not having any argument proffered to cover it, is deemed abandoned and will be struck out. See the cases of Alhaji Are & Anor. v. Ipaye & Anor (1986) 3 NWLR (Pt.29) 416 at 418 C.A.; Chukwuogor v. Obiora (1987) 3 NWLR (Pt. 61) 454 at 479; (1987) 7 SCNJ 191 also cited in the case of Lemboye & 3 Ors. v. Ogunsiji & 2 Ors. (1990) 6 NWLR (Pt. 155) 210 at 231-232 CA; Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; (1992) 7 SCNJ 355 and Ngilari v. Mothercat Ltd (1993) 8 NWLR (Pt. 311) 370 just to mention but a few. This is because, a ground of appeal must have an issue to cover it. See Ibrahim v. Mohommed (1996) 3 NWLR (Pt. 437) 453; Dieli & Ors. v. Iwuno & Ors. (1996) 4 NWLR (Pt. 445) 622; (1996) 4 SCNJ 57; Ogun v. Asemah (2002) 4 NWLR (Pt. 756) 208 and many others.

Finally, an appellate court can, prefer an issue or issues formulated by any of the parties and can itself and on its own, formulate an issue or issues which in its considered view, is/are germane to and is or are pertinent in the determination of the matter in controversy. See the cases of Musa Sha (Jnr.) 1 & anor v. Da Rap. Kwan & 4 Ors. (2000) 8 NWLR (Pt.670) 685. (2000) 5 SCNJ 101; Lebile v. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nig. Ugbebla & 3 Ors. (2003) 2 NWLR (Pt.804) 399, (2003) 1 SCNJ 463 at 479 and Emeka Nwana v. Federal Capital Development Authority & 5 Ors. (2004) 13 NWLR (Pt.889) 128 at 142-143; (2004) 7 SCNJ 90 at 99 citing several other cases therein. In my respectful view therefore, the excerpt reproduced under this ground two, amounts to no more, than the learned Justice, stating that he preferred the issues formulated by the said appellants. His Lordship, was entitled to do so, provided, that those issues so formulated, clearly took care of the main controversy between the parties. I have already stated that since none of the parties formulated any issue in respect of the said ground two the said ground stands and remains struck out.

Let me therefore, once again, passionately appeal to some or few learned counsel who prepare and file processes in all our Superior Courts of record and more especially in the appellate courts and in this court in particular to be more painstaking and exercise patience in preparing their documents and vetting them before they are filed in the courts. Even if their services are free of charge but as professionals once a case or a brief is accepted, then, there is a duty on the part of such counsel, to do a thorough job in respect of processes to be filed in the court. Learned counsel must bear in mind and infact or indeed assume that those documents, will be read by the Judge or Justices hearing and determining the case or matter.

In this appeal, with utmost respect to the parties and their learned counsel, the issue is the interpretation of the consent judgment as a whole and not just that of paragraph/clause 4 in isolation. Documentary evidence in this matter, is crucial. There is therefore, infact, speaking for myself, no need for any oral evidence which may amount to giving evidence in respect of the content of a document or documents. This is because of the settled law firstly, that prima facie oral evidence will not be admitted to prove, vary or alter or add to the term of any contract which has been reduced into writing when the document is in existence except the document itself. See the cases of Da Rocha v. Hussain (1958) 3 FSC 89 at 92: (1958) SCNLR 280 and S.C.O.A. (Nig.) Ltd. v. Bourdek Ltd. (1990) 3 NWLR (Pt.138) 380 at 389 and many others. Secondly, documentary evidence it is settled, is the best evidence, See the case of The Attorney-General, Bendel State & 2 Ors. v. United Bank for Africa Ltd. (1986) 4 NWLR (Pt.37) 547 at 565.

In the case of FSB International Bank Ltd. v. Imano (Nig.) Ltd. (2000) 11 NWLR (Pt.679) 620 at 637; (2000) 7 SCNJ 65, this Court per Achike, J.S.C. (of blessed memory) stated inter alia, as follows:-

“I must emphasise that having regard to the nature of this application and there being nothing but documentary evidence placed before us that this court is in as good a position as the trial High Court, as well as the Court of Appeal, to examine the entire documentary evidence and the other documents placed before the lower courts.”

In my respectful view therefore, the mere fact that the parties did not testify and tender the said agreements between them is of no moment or consequence and it is immaterial in the circumstances of the case leading to this instant appeal. Firstly, there is no dispute between the parties to the said agreements, that the agreements do not exist or that they did not sign/execute the same. Secondly, the said agreements are part of the contents of the records sent to this court from the court below. In other words, these said agreements were before the two courts below. The law is settled that records of proceedings/appeal bind the parties and the court until the contrary is proved. See the cases of Horst Sommer & Ors. v. Imade (1992) 1 NWLR (Pt.219) 548; (1992) 1 SCNJ 73; Texaco Panama Incorporation Owners of Vessel “M. V. Star Tulsa” v. Shell Petroleum Development Corporation of Nig. Ltd. (2002) 5 NWLR (Pt.759) 2009 (2002) 2 SCNJ 102 at 118 and Ogolo v. Fubara (2003) 11 NWLR (Pt.831) 231, (2003) 5 SCNJ 142 at 168, just to mention but a few. This is because, there is the presumption of its genuineness, although this is rebuttable. See the case of Alhaji Nuhu v. Alhaji Ogele (2003) 18 NWLR (Pt.852) 251 at 272; (2003) 12 SCNJ 158 at 172. Again, a court is entitled to look at the contents of its file or records and refer to it in consideration of any matter before it. See the cases of West African Provincial Insurance Co. Ltd. v. Nigerian Tobacco Co. Ltd. (1987) 2 NWLR (Pt. 56) 299 at 306; Osafile v. Odi Ltd. (No.1) (1990) 3 NWLR (Pt. 137) 130: (1990) 5 SCNJ 118; Chief Agbasi & Ors. v. Ebikorefe & Ors. (1997) 4 NWLR (Pt. 502) 630 at 648: (1997) 4 SCNJ 147 at 160: Agbahomovo & 2 Ors. v. Eduyegbe & 6 Ors. (1999) 3 NWLR (Pt. 594) 170; (1999) 2 SCNJ 94 citing two other cases therein and Ndayako & 6 Ors. v. Dantoro & 6 Ors. (2004) 13 NWLR (Pt.889) Pg. 187 (2004) 5 SCNJ 152 at 177 – per Edozie. J.S.C. just to mention but a few. See also section 74/75 of the evidence act.

In the circumstances of the above established law, I will therefore, treat or deal with the said issue ONE of the appellants together with the lone issue of the 1st and 2nd respondents. I have earlier in this judgment reproduced the said consent judgment. No.1 thereof states:-

“That the agreement dated 30th day of November, 1992 and supplemental agreement dated 1st day of December, 1992 is (sic) between plaintiffs and the 2nd defendant (i.e. the 2nd respondent) and are binding.” (the italics mine)

Of course, the consent judgment talks about the said two agreements between the appellants and the 1st and 2nd respondents. These two said agreements have already been referred to by me in this judgment and they can be found at pages 110 to 119 of the records. They are part of the records before the court below and this court and also referred to in the said consent judgment at page 20 of the records. Of course, it is also settled that if parties enter into an agreement, they are bound by its items and that one or the court cannot legally or properly read into the agreement, the terms on which the parties have not agreed and did not agree to. See the case of Evbuomwan & 3 Ors. v. Elema & 2 Ors. (1994) 6 NWLR (Pt.353) 638, (1994) 7-8 SCNJ (Pt. II) 243.

Also settled, is that an agreement is binding only on the parties thereto and not on third parties. See the case of W.D.N. Ltd. v. Oyibo (1992) 5 NWLR (Pt. 239) 77 at 100-101 C.A. Thus, if and where there is any disagreement as to what is or are the term or terms of an agreement on any particular point, the authoritative and legal source of information for the purpose of resolving the disagreement is of course the written agreement executed by the parties. So said this court in the cases of Union Bank of Nigeria Ltd v. Sax (Nig.) Ltd & Ors. (1994) 8 NWLR (Pt.361) 150, (1994) 9 SCNJ I at 12; and Mrs. Layade v. Panalpina World Transport Nig. Ltd. (1996) 6 NWLR (Pt. 456) 544: (1996)7 SCNJ 1 at 14-15 citing the cases of Olaloye (Mrs.) v. Balogun (Madam) (1990) 5 NWLR (Pt. 148) 24: (1990) 7 SCNJ 205; and Union Bank of Nig. Ltd. v. Prof Ozigi (1994) 3 NWLR (Pt. 333) 385: (1994) 3 SCNJ 42. See also the case of Alhaji A. Saba v. Nigerian Civil Aviation Training Centre & Anor. (1991) 5 NWLR (Pt.192) 388; (1991) 7 SCNJ 1. As a matter of fact, section 132 of the evidence act states that only admissible evidence of a contract, is the contract itself although the section recognizes exceptions. See the case of Arjay Ltd. & 2 Ors. v. Airline Management Support Ltd. (2003) 7 NWLR (Pt. 820) 577 (2003) 2 SCNJ 149 at 169.

At page 105 of the records, the learned judge in his said ruling, stated inter alia as follows:

“The basis of the consent judgment is the agreement freely entered into by the judgment creditor and the judgment debtor (2nd plaintiff and 2nd defendant). In the consent judgment, the 2nd plaintiff is to be paid 35% share of the cheque that was still being expected by the 2nd defendant as at 1/11/96, the date the consent judgment was entered for the parties. The sums were not paid to the judgment creditor. They ought to be paid. Accordingly the 5th garnishee, the Fidelity Union Merchant Bank Ltd is hereby ordered to pay the sum of N775.990.20 to the judgment creditor garnishor forthwith.”

At page 291 of the records, the court below, rightly in my respectful view identified the “central issues in the appeal” i.e. “the different interpretations which the judgment debtors and the judgment creditors gave to the consent judgment given by Famakinwa. J. on 1-11-96.”

It is pertinent for me to observe, that the court below identified this fact at page 293 of the records where the following appear, inter alia:

“As I said earlier, the 2nd defendant debtor paid to the 2nd judgment creditor the sum of N110,296.50 out of the sum of N314,572,275.66 paid to it on 28-2-97. On 7-10-97, the sum of N71,162,169, 943.32 was paid to the 2nd judgment creditor.”

It then posed the question thus:

“The question that arises for consideration is – Did paragraph 4 of the consent judgment above apply to the payment of N71,162 (sic) 943.32 such that one could hold that by the force of the judgment, 2nd judgment debtor was bound to pay the 2nd judgment creditor the sum of N24,909,480.11 representing 35% of the payment

And it answered thus: “I think not.”

It then stated inter alia, as follows:

“The words of the consent judgment clearly speak for themselves. It was not for the court below to alter or vary them even if in the light of disputations before it, it thought that the parties might have intended something other than was recorded in the consent judgment….”

This last sentence, in my respectful view, was not so or true and it was unfair to the learned trial Judge. It then at page 294 thereof, completely agreed with the submission of the late learned Senior Advocate of Nigeria – Kehinde Sofola, SAN, for the 2nd respondent in his brief which reads as follows:-

“It is respectfully submitted that the rules of interpretation or construction do not allow words used to be altered – see Okumagba v. Egbe (1965) 1 All N.L.R. 62. Words used are not to be treated as surplusage (sic). See Nasr v. Bovari (sic) (1969) All N.L.R. 35. Words are not to be added. See Mabinori (sic) v. Ogunleye (1970) 1 All N.L.R. 17. Therefore altering, ignoring or adding words is virtually amending the provision and that is beyond the powers of the courts. The function of the courts is to expound the meaning of the .”

Surprisingly and in spite of its agreement to the said submission, the court below proceeded with respect, to do the opposite of the above firmly laid/established principles of law or rules of interpretation by ignoring or amending so to speak, the said agreement of the parties that are binding on them by confining itself to, paragraph/clause 4 and interpreting it in isolation to the other paragraph/clauses of the said consent judgment. This was also done, in spite of the overwhelming facts in the records and the settled law, I say so because, even in the case of Union of Bank of Nig. Ltd. (not UBA Ltd.) & Anor v. Nwaokolo (1995) 6 NWLR (Pt.400) 127 said to be at 132 (it is at (Pt.127) and it is at page 154 cited and relied on by the 1st and 2nd respondents in their Brief, (it is also reported in (1995) SCNJ 93), (and which was/is not very correctly and completely reproduced and with some typographical spelling by the learned counsel for the appellants at page I of their reply brief to the 1st and 2nd respondents’ brief and under issue one of the appellants) this Court per Onu, J.S.C. stated at page 154 of the NWLR inter alia, as follows:

“It is trite that in the construction of documents, the cardinal principle is that the parties are presumed to intend what they have infact said or written down. Accordingly, the words employed by them will be as construed and should be given their ordinary and plain meaning unless, of course, circumstance, such as trade usage or the like, dictate that particular construction ought to be applied in order to give effect to the particular intention envisaged by the parties. See Aouad & Another v. Kessrawani (1956) 1 FSC 35; (1956) SCNLR 83. Nwangwu v. Nzekwu & Another (1957) 3 FSC 36; (1957) SCNLR 61 and A.-G., Kaduna State and Others v. Atta & 2 Others (1986) 4 NWLR (Pt.38) 785. As a general rule therefore, words should be given their ordinary and plain meaning and additional words or clauses ought not to be imported into a written agreement or document unless it is impossible to understand the agreement or document in the absence of such additional words or clauses. See Solicitor General, Western Nigeria v. Adebonojo (1971) 1 All NLR 178 and Union Bank of Nigeria Ltd. v. Ozigi (1974) (sic) (it is 1994) 3 NWLR (Pt. 333) 385. The point must also be made that it is not the function of a court to make or rewrite a contract for the parries. See Fakorede & Ors. v. A.-G., of Western State (1972) 1 All NLR (Pt. 1) 178 & 189 and British Movietonews Ltd v. London & District Cinema Ltd (1912) A.C. 166. And so, where parties have embodied the terms of their contract in a written document, extrinsic evidence, whether oral or contained in other writings, is not admissible save in a few accepted exceptions, to add to, vary, contradict or subtract from the terms of such document. See Olaloye v. Balogun (1990) 5 NWLR (Pt.148) 24.”

Clause 2 of the 1st agreement at page 111 which is the same as the records clause 12 at pages 117-118 of the records, provides as follows:-

“This agreement shall be deemed to have commenced at the signing of this agreement and shall continue in force until final pavment on and/or execution of any contract covered by this agreement. If by 31st December, 1993 no contract is awarded to the company both parties are free to terminate or renew this agreement” (the italics mine)

It is not in dispute that the FCDA were to liquidate the total payment of the said contract sum in (4) four instalments. There is evidence already noted in this judgment that there was no problem in the payment of the first instalment When the (2nd) second instalment was made and there rose a problem created by the 2nd respondent, this led to the consent judgment after an arbitration. The 2nd respondent, thereafter, paid the 2nd appellant

For purposes of emphasis, there are pages 56 and 57 of the records. Page 57, shows, the payment voucher of the 3rd instalment for the said sum of N71,169,943.32. Therein, it is stated inter alia, as follows:-

“Being 3rd C.V payment made to the above named Coy (i.e. the 2nd respondent) jar supply and installation of traffic light at 64 junction in Abuja.” (the italics mine)

Evidence of this payment is exhibit C.

It is therefore, beyond doubt that the said payment, was the said 3rd installment of the said contract, the subject-matter of the said agreements. It was with respect dishonest, false and fraudulent on the part of the 2nd respondent, to say or claim that the said payment, was in respect of another/separate contract. Let me debunk the said assertion or claim by the 2nd respondent.

I have already referred to clause 2 of the said agreement of the 1st agreement and Clause 3 of the 2nd agreement the wordings of which, are clear, unambiguous and need no interpretation. Clause 2 or 3 of both agreements also reproduced at page 3 of the appellants’ reply brief provide as follows:-

‘This agreement shall cover all contracts or projects for the installation of traffic lights in the Federal Capital Territory Abuja.”

Clause 3 of the 1st agreement III or clause 4 of the 2nd agreement at page 116 of the records which provides that “the company shall give to the agent, copy of every letter and or agreement in relation to any contract procured by the agent”, can be seen to flow from the said clause 2 or 3 above.

Clause 7 of the 1st agreement or clause 8 of the 2nd agreement, reads as follows:-

“Payment to the agent shall be only pro-rata to the sum paid at any time for any project under this agreement.”

Clause 8 of the 1st agreement of clause 9 of the 2nd agreement, provides thus:-

“All payments or commission paid to the agent shall be in the same currency as received by the company and shall be determined and payable pro-rata to the amount paid to the company.”

These clauses are also clear and unambiguous and are still in respect of the one and only one contract covered by the said two agreements.

Now, at pages 101 and 102 of the records, the learned Judge in his said ruling of 22nd April, 1999, made some findings of fact. He stated inter alia, as follows:-

“Paragraphs 5, 6, 7 and 8 show the justification for the Garnishee proceedings. It reads:-

5. That the FCDA paid the said payment of N71,169,943.32k to judgment debtor with Central Bank cheque No.001163585 of 7/10/97.
6. That the Slim of N24,909,480.11k is due to the judgment creditors out of the payment of N71,169,943.32k.
7. That the judgment debtors have refused, jailed or neglected to par the slip of N24,909,480.11k due to the judgment creditors despite repeated demand.
8. That the Garnishees jointly and severally have the finds of N71,169.743.32k under their control in the accounts of the judgment debtors kept with them.

The above is not denied. The 5th garnishee, the Fidelity Union Merchant Bank Ltd swore to a further and better affidavit to show cause on 6/10/98.

In the affidavit supra paragraph 4 is clear. It reads:-

4. That the statement of accounts showed the account of the 2nd judgment debtor from April, 1998 instead of October 1997 when the sum of N71,169,943.32 was lodged into its account with the bank.

Exhibit B attached to the said affidavit is the statement of account of the 2nd judgment debtor. Its contents are in support of paragraph 4 above.

It is thus settled that the sum of N71,169,943.32 was in the account of the 2nd judgment debtor the 5th garnishee in October 1997.”

At page 104 thereof, His Lordship stated inter alia, as follows:-

The 5th garnishee, the Fidelity Union Merchant Bank Ltd relied on two affidavits to show cause dated 1/5/98 and 6/10/98. It explains on the affidavit supra the movement of the sum paid in thus:-

5. That on 8/10/97 it deposited a cheque for N71,169,943.32 in it’s account aforesaid for clearing.
6. That the said cheque was cleared and its account credited accordingly.
7. That it draw cheques on the said account and the bank honoured same in the ordinary cause of banker/customer relationship.
8. That as at 16/7/98 when the garnishee order was served onus, the credit balance in its account was N772.954.62 (Seven hundred and seventy-two thousand, nine hundred and fifty-four naira, sixty-two kobo) credit.
9. That the statement of its account with our bank as at today, show the credit balance in the account to be N773,990.80 credit.

The said statement of account is attached hereto and marked ‘A’ the above is not disputed.”

Finally, for purposes of emphasis. I again reproduce his Lordships finding of fact and holding at page 105, inter alia, as follows:

The basis of the consent judgment is the agreement freely entered into by the judgment creditor and the judgment debtor (2nd plaintiff and 2nd defendant). In the consent judgment the 2nd plaintiff is to be paid 35% share of the cheque that was still being expected by the 2nd defendant as at 1/11/96, the date consent judgment was entered for the parties. The sums were not paid to the judgment creditor. They ought to have been paid to him. Accordingly, the 5th garnishee, the Fidelity Union Merchant Bank Ltd, is hereby ordered to pay the sum of N775,990.80 to the judgment creditor garnishor forthwith.”

The court below as I stated herein above, dealt with and interpreted paragraph/clause 4 in isolation of the other paragraphs/clauses in the said consent judgment. In the case of Martin Schroder & Co. v. Major & Co. (Nig.) Ltd. (1989) 2 NWLR (Pt.101) 1 at 12; (1989) SCNJ 210, this court per Wali, JSC, stated inter alia, as follows:-

“The object of interpreting any statute or instrument is to ascertain the intention of the legislature that had made it or that of the parties that had drawn it. This is done by reading the words used in the particular section of the statute or the document. Where the meaning is not clear by doing so, the other sections of the statute, or the whole of it, shall be read together to ascertain the meaning. This same rule applies to other instruments. The provisions of the two rules are crystal clear, one is general while the other is special….” (the italics mine)

In the case of Artra Industries Nig. Ltd. v. The Nigerian Bank for Commerce and Industry or (N.B.C.I.) (1998) 4 NWLR (Pt.546) 357 at 375 paragraph C also cited and relied on by the appellants in their said reply brief it is also reported in (1998) 3 SCNJ 97, Onu, J.S.C, stated inter alia, as follows:-

“….In interpreting a document, due regard must be given to the entire document so as to find out the correct meaning of the word in relation to the agreement…” (the italics mine)

Having regard to paragraph/clause 1 of the consent judgment and the relevant paragraphs/clauses I have already referred to and reproduced, there is nowhere in my respectful view, paragraph/clause 4 of the consent judgment, can be read, without reference to and anchoring it on the said two agreements stated to be binding on the parties, particularly having regard to clauses 2, 3, respectively, 7, 8, 11 and 12 thereof (at pages 111 to 118 of the records). I so hold. To do otherwise, with profound humility, is bound to and will do violence to the wordings of the said two agreements and distort, its/the said terms or clauses and of course, the said consent judgment.

Indeed, in the case of Unilife (not UNILIFE as appears in the appellants’ reply brief) Development Co. Ltd. v. Adeshingbin & 4 Ors. (also not properly cited) (2001) 4 NWLR (Pt. 704) 609 at 626 paragraph C per Achike, J.S.C. (of blessed memory) (not at 614 ratio 3 which is the editor’s ratio). It is also reported in (2001) 2 SCNJ 116 it was held, inter alia, as follows:

“It is a fundamental rule of construction of instruments (I will also add documents and agreements) that its several clauses, must be interpreted harmoniously so that the various parts of the instrument are not brought in conflict to their natural meaning. Emphasising the same point, the learned authors of Halsbury’s Laws of England Vol. 12, (4th edition) paragraph 1469 stated tersely but pointedly:

‘The best construction of deeds is to make one part of the deed expound the other, and so make all the parts agree. Effect must, so far as possible be given to every word and every clause’. (the italics mine)

See also the same principle approved by this court in the case of Lamikoro Ojokolobo & Ors. v. Lapade Alamu & Anor (1987) 3 NWLR (Pt.61) 377; (1987) 7 SCNJ 98. It is ironical that Kehinde Sofola, Esq. (SAN) (of blessed memory) and who the court below “completely” agreed with his said submission reproduced by me in this judgment, appeared for the appellants in Unilife’s case (supra). Karibi-Whyte, JSC, in his contribution/concurring judgment, at page 636 paragraphs A-B. stated as follows:

“I agree with Mr. Sofola SAN in his submission that the court below was in error to have relied on clauses 3 and 6 of the lease agreement only and limited itself in the construction of the lease agreement to the construction of these clauses alone. The approach adopted in the court below is in construction of these clauses alone. The approach adopted by the court below is in violation of one of the fundamental and hallowed principles in the construction of document and written instruments, that the several parts, where there are more than one, must be interpreted together to avoid conflicts in the natural meaning in the various parts of the written document or instrument. This rule of construction was approved by this court in Ojokolobo & Ors. v. Alamu & Anor. (1987) 3 NWLR (Pt.61) 377; (1987) 7 SCNJ 98.” (the italics mine)

It is noted by me that in the above case, Achike, J.S.C. at page 625, had noted that in the Court of Appeal. Niki Tobi, J.C.A (as he then was), in his concurring judgment, expressly stated “I shall take only two clauses in the lease”. In the instant appeal, I have referred to and reproduced the question or poser by the court below as to the “central issue” for determination as to the interpretation of only paragraph/clause 4 of the consent judgment. At page 295 of the records, the court below concluded inter alia, as follows:-

“On the whole, I get the impression that parties in framing their terms of settlement in the manner they did, had in mind a particular amount of money which was to be paid vide the next cheque to be issued to the 2nd judgment debtor by the Federal Capital Development Authority. I therefore uphold appellant’s appeal on the point.

(the italics mine)

With profound humility and respect to His Lordships, this cannot be right. In fact, it is far from the truth having regard to paragraph/clause I of the said consent judgment which pointedly and unequivocally, referred to the agreements of the parties that it stated, are binding on them therefore, agree with the submission of the learned counsel for the appellants in their briefs that the court below ought to have taken into consideration, other paragraphs/clauses in the consent judgment particularly. Clause l which is the pivot so to say of the consent judgment before arriving at its said conclusion. The said paragraph/clause I, clearly referred to the agreements of the parties some of the relevant paragraphs/clauses, I have also referred to in this judgment. At nowhere from the affidavits in the records, did the appellants admit that the said sum of N71,169,943.32, does not form part of the current cheque being expected by the 2nd respondent as per AIE NO. BD/398/96. See the affidavit in support and counter affidavit at pages 13, 53 and 91 of the records. I note that the 1st and 2nd respondents, never objected before Rhodes-Vivour. J. (as he then was) nor at the court below, that the said agreements, were not exhibited or given in evidence. Any such suggestion or submission in this regard, is taken by me with respect, as an after thought made in very bad faith by the 1st and 2nd respondents. The agreements were not only exhibited in the said processes filed in that court and were relied on by the learned Judge, before his said ruling. More importantly, they are contained in the records before the court below and in this court.

When it is submitted at page 14 of the 1st and 2nd respondents’ brief that:

“Clearly the Court of Appeal was right when it held that paragraph 4 of the consent judgment did not apply to the subsequent payment of N71,162, (sic) 943.32 such that the force of the judgment the 1st and 2nd respondents were bound to pay the appellants the sum of N24,909,480.11 representing 35% of further payment after the terms of the consent judgment had been complied with.” (the italics mine)

I am thoroughly amazed because, I or one may ask, was the subsequent or further payment by the FCDA made or effected for any other contract to the 2nd respondent in respect of any other project except that relating to the said installation of the said traffic lights in Abuja Was the payment of the contract sum, not being made by install mental payments by the FCDA to the 2nd respondent Yes of course and this is not denied by the 1st and 2nd respondents. Is there any evidence by the 1st and 2nd respondents to contradict the letter from the Federal Ministry of Finance Budget Office which is at page 56 of the records and the contents of the said payment voucher at page 57 of the records In my respectful and firm view, the 1st and 2nd respondents, did not and have not adverted their “minds” and arguments, to these pertinent questions or posers. My respectful answers to the first and third questions are in the negative.

I am also amused by the further submission in the said brief that the appellants cannot rely on the cons of the two agreements to give effect to subsequent payments which they felt they were entitled to because according to them at the time the consent judgment was entered by the learned “trial” judge, the contents of the said agreements were never before the court as exhibits to enable the court examine the contents and determine the periodicity of payments. With profound respect to the learned counsel and his clients, this submission is very funny to me. This is because, if the said two agreements were not exhibited or were not before Famakinwa, J, for examination of the contents, why and how did paragraph/clause 1 of the consent judgment, refer to the said two agreements and state that they are only binding on the parties to the said agreements I or one may ask. Infact, the said consent judgment was entered “in favour of the appellants (plaintiffs) against the defendant”. In my humble view, it was because the 2nd respondent “had always performed its obligation under the agreement and was ready and willing to continue performing the same” (as stated in paragraph/clause 3 of the consent judgment), that it did not see the reason for the appellants going to court to seek for the enforcement of their entitlements under the said agreements. It is most regrettable when it is further submitted that:-

“The clause (sic) (which clause It is not stated) in the two agreements cannot be of any relevance in this court as they were not tendered in evidence in the trial court and any reference to them or quotation therefrom is with respect an exercise in futility.”

Well, if because the two agreements were not tendered and any reference to them or quotation therefrom, amounts to an exercise in futility, again, paragraph/ clause 1 of the consent judgment unequivocally states that they are binding on the parties to the said agreements and so be it! Any wonder at page 68 of the records, after the ruling of Rhodes-Vivour, J. (as he then was) of 1st July, 1999. when the learned counsel for the appellants complained to the learned Judge about the stoppage by the 3rd respondent of the cheque issued in favour of the appellants, the following inter alia, appear:

“V. O. Ijomah (learned counsel for the 3rd respondent) we received notice of appeal and we were joined. We had no alternative to stop the cheque until the matter is disposed off. I will tell my principal to give the judgment creditor (i.e. the 2nd appellant) his money. Court – You better do so quickly.”

I must confess that the stance of the 1st and 2nd respondents, is very disgusting to me to say the least. The sanctity of a contract or agreement freely entered into is no longer respected by them because of selfish monetary interest and love and quest for money. Afterwards, the case at the trial court, was fought on affidavit evidence where relevant documentary evidence including the said agreements, were exhibited.

Before I am done, I am not going to bother myself in going into what a consent judgment is all about or its meaning. That has long been settled in a line of decided authorities. See the cases of Ojora v. Agip (Nig.) Plc & Anor. (2005) 4 NWLR (Pt. 916) 515 at 537, 538 C.A. citing Woluchem v. Wokoma (1974) 3 S.C. 153 at 166, 168; Oshoboja v.Alhaji Amuda & 2 Ors. (1992) 6 NWLR (Pt. 250) 690 at 703; (1992) 7 SCNJ 317 and recently in Race Auto Supply Co. Ltd. & 3 Ors. v. Alhaja Faosat Akib (2006) 13 NWLR (Pt. 997) 333 at 354-355,359-360: (2006) 6 SCNJ 98 (2006) 6 SC. 1 (2006) 26 NSCQR 809; (2006) MJSC 190; (2006) JNSC (Pt.20) 585; (2006) 8-9 SCM 307 and (2006) All FWLR (Pt.327) 486.

In the case of General Accident Fire and Life Assurance Corporation Ltd. v. Inland Revenue Commissioners (1963) 1 All E.R. 618 at 627; (1963) 1 WLR 1207, Plowman, J. stated inter alia, as follows:-

“Dealing first with the question of construction consent order must, in my judgment, be construed in the light of any admissible evidence of surrounding circumstances, but without direct evidence of the parties intention …. Evidence of surrounding circumstances, in my opinion, includes evidence as to the nature of the dispute which was compromised by the order…… (the italics mine)

Admissible evidence in this appeal, is the said agreement of the parties which are binding on them. In my respectful view, this is a classic case where greed and perfidy of man are manifested in a very repulsive and often, mean manner. The 2nd respondent although a company and a juristic entity, was/is run by a human being. The lesson however, to humanity men and women alike and the so called businessmen, are firstly, that the courts cannot permit or allow any person to benefit from his own wrong. Secondly, every intrigue or dishonesty by any human being has an “invisible track, a loophole, weak or vulnerable spot. This is just by the way. I am satisfied that in the hearts of hearts of whosoever signed the said agreements as the director of the 2nd respondent, knows that the interpretation given by the court below, is with respect, wrong and not justified in all the circumstances of this case leading to the instant appeal. My answer therefore, to issue one of 1st appellants and the lone issue of the 1st and 2nd respondents, is rendered in the negative.

ISSUE TWO

The 1st and 2nd respondents, have rightly raised or given notice of preliminary objection in their said brief. I say rightly because, a notice of preliminary objection, may validly be raised to question either the competence of an appeal or an issue raised for determination by an appellant. See the cases of Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248 at 257 & 258; and Salami v. Mohammed (2000) 9 NWLR (Pt.673) 469: (2000) 6 SCNJ 281, just to mention but a few. However, a party filing or raising it in the brief must ask the court for leave to move it before the oral hearing of the appeal commences, otherwise and this is settled, it will be deemed to have been waived and therefore, abandoned. See the cases of Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) 257 at 270; and Oforkire & Anor v. Maduike & 5 Ors. (2003) 5 NWLR (Pt. 812) 166: (2003) 1 SCNJ 440 at 448.

I note that at page 9 of the appellants’ brief, it is stated that on 7th May, 2001, their motion for leave to appeal on law, mixed law and facts against Mr. Kehinde Sofola SAN, was struck out by this court for being incompetent. So be it. But more importantly, at page 6 of their reply brief, the said issue two has been abandoned by the appellants. In the circumstance, the same is accordingly struck out.

In conclusion, this appeal as regards issue two of the appellants is meritorious and it succeeds. I hereby allow the appeal and set aside the decision of the court below. I hold that the appellants are entitled to 35% (thirty-five per cent) share of the said sum of N71,169,943.32 (seventy-one million one hundred and sixty-nine thousand, nine hundred and forty-three naira, thirty-two kobo) which must be paid to them by the 1st and 2nd respondents forthwith. Costs follow events. The appellants are entitled to costs which is fixed at N10,000.00 (ten thousand naira) payable to them by the 1st and 3rd respondents. I have no doubt in my mind that the 2nd respondent/judgment debtor, was in absolute contempt of the High Court by stopping the execution of that court’s said order.

CROSS APPEAL

This is an appeal by the 3rd respondent/cross appellant who was a Garnishee in the High Court and a respondent in the court below. I note that it did not file an appeal in the court below against the said ruling of Rhodes- Vivour J. (as he then was). I note that at page 4, No.2 paragraph 2.01, of its brief, it describes itself as “a nominal party”, (i.e. a party in name only and not in reality as defined in the Oxford Advanced Learner’s Dictionary or existing in name only as defined in Black’s Law Dictionary).

However, I have already in this judgment, reproduced the depositions of the respondent/cross appellant in paragraphs 5 to 9 in its two affidavits sworn to and relied upon by it, as reproduced in the said ruling of the learned Judge. So, I need not go into the facts in relation to the matter before Rhodes-Vivour, J, (as he then was) leading to the said ruling. Be that as it may, for what it is worth, I will still deal with it even briefly, even though, it is an appeal that has no or proper base at the court below, I have also reproduced what transpired at the trial court after the said ruling of the learned Judge who stated – “you better do so quickly”, (i,e, to pay the judgment creditor quickly), I have noted also that the 3rd respondent/cross appellant, paid over to the judgment creditor, the said sum of N773,990,80 which sum Ezekwueche, Esq. told the court on the hearing date of this appeal that the said order was set aside by the court below. Since it is settled that courts must deal with relevant issue or issues validly raised by the parties, I now proceed to deal with them except that in this court, if the determination of an issue takes care of the entire appeal, there will be no need going into other issues.

See the case of Anyaduba & anor. v. Nigeria Renowed Trading Co. Ltd. (No.2) (1992) 5 NWLR (Pt. 243) 535: (1992) 6 SCNJ 204, The 3rd respondent/cross appellant has formulated three (3) issues for determination namely,

“(i) Whether or not the learned Justices of the Court of Appeal were right in completely ignoring in their judgment the cross appellant’s brief of argument (Ground 1),

(ii) If the answer to issue (I) (sic) above is in the affirmative, whether the Court of Appeal’s failure to consider the said brief of argument did not occasion a miscarriage of justice, (Ground 2)

(iii) Whether or not the learned Justices of the Court of Appeal were correct in failing to pronounce on the fate of the garnisheed N773,990.80 paid over to the appellants pursuant to the garnishee order absolute. (Ground 3)

On its part, the appellants/cross respondents, have formulated one (1) issue for determination, it reads-

“Whether the trial court was right in asking the cross appellant to pay over to the 2nd appellant, the sum of N773,990.80 being part of N24,909,480.11k as 35% of the third payment of the sum of N71,169,943.32k paid by F.C.D.A. to the 2nd respondent in respect of the traffic light project in Abuja as duly covered in the two agreements of 30th November, 1992 and 1st December. 1992.”

For the 1st and 2nd respondents/cross respondents, they formulated two issues for determination, namely:-

“(a) Whether the lower court was right when it ignored the arguments in the cross appellant’s brief when the arguments therein were based on an issue, which was not distilled or formulated from any of the grounds in the notice of appeal

(b) Whether the failure of the lower court to consider arguments in the cross appellant’s brief on an incompetent issue did occasion a miscarriage of justice.”

I wish to ignore with respect, the one issue of the appellants/cross respondents because and this is settled, that this court does not deal with and will not consider a matter from the High Court. See the cases of Harriman v. Chief Harriman (1987) 3 NWLR (Pt.60) 244 at 257: (1987) 6 SCNJ 218; Chief Olatunde & Anor. v. Abidogun & Anor. (2001) 18 NWLR (Pt.746) 712, (2001) 12 SCNJ 225 at 234: and Ibori v. Agbi (2004) 6 NWLR (Pt. 868) 78 at 143-144; (2004) 2 SCNJ 1 at 52 just to mention but a few. The said issue is accordingly, struck out by me.

Now, on the merits of the cross appeal, I have noted that the 3rd respondent/cross appellant, did not appeal to the court below, the said ruling of the trial court. Therefore, I agree with the 1st and 2nd respondents/cross respondents in their brief, that the instant cross appeal, was initiated without proper base at the court below. It is built on an incompetent foundation. What is more, going into it, will amount to this court, embarking on an academic exercise which it is not permitted to do as it will result to an exercise in futility. See the cases of Ekperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 at 179 C.A.: Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 at 534: (1991) 9-10 SCNJ 122; and Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 at 330; (1999) 6 SCNJ 295 and many others.

I am obliged to commend the stance and submissions of the learned counsel for the 1st and 2nd respondents/cross respondents- Sofola, Esq. (SAN) in their brief. This is what is expected of all learned counsel who are themselves, ministers in the temple of justice. Afterwards, it is said that justice is the most honourable gift from God/Allah to man and that they are honourable who do justice.

In conclusion, my answers to issues (i) and (iii) of the 3rd respondent/cross appellant is that the court below, was right both in completely ignoring its brief of argument and in rightly in my view, making no pronouncement on the said brief. My answer therefore, to the 1st and 2nd respondents’/cross respondents’ issues (a) is in the positive or affirmative while my answer to issue (ii) of the cross appellant and issue (b) of the 1st and 2nd respondents/cross respondents is in the negative.

It need to be emphasized that this court, will not be drawn into indulging itself into an academic exercise in futility, more especially, where the cross appellant and its learned counsel have not shown and indeed, will be unable to show what miscarriage of justice that has been occasioned to the 3rd respondent/cross appellant by the said decision of the court below except of course, that it wants to continue trading with the judgment creditor’s said money due to him by the said agreements of the parties thereto and which money in any case, is not its money strictly and legally speaking. This is perhaps, why the said learned counsel, urged this court at the healing of this appeal, to make an order for his clients to keep the money and to pay it to whoever wins in this appeal. But, if I or one may ask, will it be just and equitable to make the said order, having regard to all the circumstances of this case adumbrated by me in the main appeal I think not. The cross-appeal which with respect, is time wasting and an exercise in futility, fails. It is accordingly dismissed as it is grossly misconceived. I was minded to award costs against the 3rd respondent/cross-appellant, but I hereby make no order as to costs.

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SC.216/2006

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

LAWGLOBAL HUB Lead Judgment Report

AKINTAN, J.S.C.

The two appellants were arrested and detained at Garga Police station in Plateau State for armed robbery sometime in October, 2002. They were later transferred to Jos Police Headquarters and then to Jos C.I.D. where they were detained for quite sometime before they were arraigned before the Chief Magistrate Court, Jos on 11th December, 2002. They then caused to be issued a summon to admit them to bail pending trial at the Jos High Court. The application was supported with a 5 paragraph affidavit.

Paragraph 3 of the supporting affidavit deposed to by one Serah Ibrahim, Litigation Secretary, in the law firm of the appellants’ counsel, read as follows:

“3. That I have been informed by the applicants in Jos prison on 9/3/2003 at 12.00 noon while briefing A.A. Sangei, Esq. of counsel and verily believe their information to be true:

(a) That the applicants were arrested and detained at Garga Police Station for alleged offence of Armed Robbery sometimes in October, 2002.

(b) That they were later transferred to Jos Police Headquarters and finally transferred to Jos C.I.D. where they were detained for a long time.

(c) That the applicants did not commit the alleged offence on the F.I.R., A copy of the F.I.R. is hereby annexed and marked exhibit “A”.

(d) That the applicants were subsequently arraigned before the Chief Magistrate Court II, Jos on the 11/12/2002 after staying at C.I.D. Jos for a long time.

(e) That the Chief Magistrate Court II, Jos ordered for the remand of the applicants at the Jos prison.

(f) The proceedings are annexed hereto and marked as exhibit “B”.

(g) That the applicants have been in prison since 11/12/2002.

(h) That the respondent is not willing to prosecute the applicants. That the respondent only want the applicants to be detained in prison custody without prosecution.

(h) That the applicants will not jump bail, they will also appear in court for their case.

(i) That the applicants will not interfere with proper police investigation in case any is remaining.

(j) That the applicants will provide credible and reliable surety/sureties as this Honourable Court may order.”

The application was opposed and to that end, a 15 paragraph counter-affidavit deposed to by one Joseph Chinda, an Assistant Superintendent of Police (ASP) attached to the Special Anti-Robbery Section, C.I.D. Plateau State Police Command, Jos. The facts relied on are contained in paragraph 1 to 11 of the counter-affidavit which read as follows:

“1. That I am the sectional head of the team of Police Officers investigating the case of criminal conspiracy, armed robbery and culpable homicide offences that the applicants and other culprits now at large are standing trial for, by virtue of the said position I am very conversant with the facts deposed to herein.

2. That I have read through the summons to admit the applicants to bail pending their trial as well as supporting affidavit and I know as a matter of fact that paragraph 3 (c, g, h, i, and j) are not true.
3. That Police investigation into the case is still in progress with the view of arresting the cohorts of the applicants that are still at large, and that should the applicants be released on bail the (applicants) will not only elope justice but that they may tamper with Police investigation.
4. That the applicants have made useful statements to the Police to the effect that they are members of a gang of armed robbers that have committed series of armed robberies within Dengi-Kanam and its evirons and Plateau State in particular in the recent past as well as neighbouring Bauchi State.
5. That working on the above information given to the Police by the applicants, the detectives have since gone into action with the view of arresting the remaining culprits from their hide-outs.
6. That based on further clues discovered by the Police against the applicants and others into the case, they (Police) shall substitute the initial First Information Report (FIR.) with a new one to include the other offences that were not included in the old First Information Report (FIR.) against the applicants.
7. That this will be done as soon as the Investigating Police Officers (I.P.Os) who are in possession of the case file diary return from their special assignments in connection with this very case that the application for bail is being sought by the applicants.
8. That the delay in the arraignment of the applicants before the court all these while is not unconnected with the constant strike actions by both the Federal Civil Servants and Plateau State in particular, ministry of Justice Plateau State, Jos inclusive since 2002/2003 and of late, the recent Nigerian Labour Congress (N.L.C.) as a result of the fuel prices that were increased by the Federal Government of Nigeria.
9. That the Ministry of Justice Plateau State, Jos who is to file the necessary application before the High Court for leave to prefer a charge against the applicants was not left out of the strike stated in paragraph 8 above and the current Nigerian Bar Association (N.B.A.) Plateau State, Jos Branch Law week.
10. That now the strike action have been suspended by both Federal and State civil servants, I verily believe that the Ministry of Justice Plateau State, Jos, will make the necessary application to the High Court of Justice Plateau State, Jos for leave to prefer a charge against the applicants.
11. That since the arrest and detention of the applicants there had been rapid decline of robbery incident in Shuwaka Garga village of Dengi -Kanam Local Government Area of Plateau State and Plateau State in general.”

The application thereafter came up for hearing before Damulak, J. sitting at Jos High Court. After taking submissions from learned counsel for the parties, delivered his reserved ruling on 20th October, 2003. The learned Judge, after reviewing all the issues raised in the matter, came to the conclusion that there was no merit in the application. He therefore dismissed it. He said as follows in the concluding paragraph of his said ruling:

“In the circumstances, I find that the application does not succeed and is hereby dismissed. It is ordered that investigation into the matter be stepped up and the applicants be charged before the High Court forthwith.”

The appellants were dissatisfied with the ruling and their appeal to the Court of Appeal, Jos Division was dismissed. This is an appeal from the judgment of the Court of Appeal (hereinafter referred to as court below). The parties filed their briefs of argument in this court.

The following two issues were formulated in the appellant’s brief which was also adopted by the respondent in the respondent’s brief:

“1. Whether or not the Court of Appeal exercised its discretion judicially and judiciously when it dismissed the appellant’s appeal.

2. Whether or not the Court of Appeal was right when it upheld the decision of the trial court which refused to be bound by the decision of the Court of Appeal in Anakwe v. C.O.P (2004) 17 NWLR (Pt. 901) 1; and Musa v. C.O.P (2004) 9 NWLR (pt. 879) 483.”

It is submitted in the appellant’s issue 1 that the learned Justices of the court below were in error when they affirmed the decision of the trial High Court which is said not to have been exercised judicially and judiciously having regard to the circumstances of the case as depicted by the depositions of the parties. The court below is specifically accused of disregarding the appellants’ right to presumption of innocence as envisaged by section 36(5) of the 1999 Constitution It is further submitted that the applicants having deposed to specific facts in paragraph 3 (c) to (k) which facts are not denied, the court below is said to be in error in dismissing the appeal.

It is submitted in the appellants issue 2 that the court below was in error when it affirmed the decision of the trial court which refused to be bound by the decisions of the Court of Appeal in some named cases where such applications were granted. Particular reference was made to the case of Oshinayo v. Commissioner of Police (2004) 17 NWLR (Pt. 901) 1 which was a case involving armed robbery where bail was granted to the accused person.

It is submitted in reply, in the respondent’s brief that the criteria that should guide the courts in deciding whether to grant or refuse an application for bail are well laid down by this court in numerous decisions of this court, particularly in Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (Pt. 375) 558 at 572; (2007) 12 NWLR (Pt. 1048) 320; and Bamayi v. The State (2001) FWLR (Pt. 46) 956 at 984, (2001) 8 NWLR (Pt.715) 270. It is also argued that the bail ability of an accused depend largely on the weight the Judge attached to one or several of the criteria open to him in any given case. The court below in this case is said to have exercised its discretion judicially and judiciously when it dismissed the appellants appeal having regard to the facts tendered in the case. It is further submitted that the presumption of innocence does not make the grant of bail automatic since there is always the discretion to refuse bail if the court is satisfied that there are substantial grounds for believing that the applicant for bail pending trial would abscond or interfere with witnesses or otherwise obstruct the course of justice. The crucial factor is said to be the existence of substantial ground for the belief that he would do so.

It is submitted in reply to issue 2 that since the issue of grant or refusal of bail is a discretionary matter, previous decisions are not of much value. They are therefore said not to be binding but can only offer broad guidelines as each exercise of discretion depends on the facts of each case.

The question to be resolved in this appeal is whether the Court of Appeal was right in its decision to dismiss the appeal before it and affirming the order of the trial High Court by which the appellants’ application for bail was refused. It is not in doubt that the decision whether to grant or refuse an application for bail involves exercise of judicial discretion in every case. The word “discretion” when applied to public functionaries, a term which includes judicial officers, is defined in Black’s Law Dictionary, 6th edition, 1990, page 466 as meaning:

“A power or right conferred upon them by law of acting in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. It connotes action taken in light or reason as applied to all facts and with view to rights of all parties to action while having regard for what is right and equitable under all circumstances and law.”

The criteria to be followed in taking a decision in cases of this nature as laid down by this court include:

(i) the nature of the charge;

(ii) the strength of the evidence which supports the charge;

(iii) the gravity of the punishment in the event of conviction;

(iv) the previous criminal record of the accused, if any;

(v) the probability that the accused may not surrender himself for trial;

(vi) the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;

(vii) the likelihood of further charge being brought against the accused; and

(x) the necessity to procure medical or social report pending final disposal of the case.

See Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 270;Dokubo-Asari v. Federal Republic of Nigeria (2007) All FWLR (Pt. 375) 558, (2007) 12 NWLR (Pt. 1048) 320; Abacha v. The State (2002) 5 NWLR (Pt. 761) 638; Ani v. The State (2002) 1 NWLR (Pt. 747) 217; Elorenugo v. Federal Republic of Nigeria (2001) 6 NWLR (pt. 708) 717; and Eyu v. The State (1988) 2 NWLR (Pt. 78) 602.

It follows, therefore, that a judicial officer saddled with the responsibility of exercising a discretion is required to arrive at the decision in every case or situation based on the facts placed before him in the very case and apply the applicable law. His decision is therefore likely to vary from case to case since the circumstances in each case may vary. The question of stereotype or strict application of the rule of judicial precedent would not be of importance.

Thus from the facts of this case as set out in the affidavit evidence filed by the parties, the appellants were first arrested and detained for armed robbery sometime in October, 2002. As at the time of their arrest, there was a wave of armed robberies in the Jos area and the police told the court of the need to detain the appellants pending their efforts to arrest the remaining members of the gang of robbers terrorizing the area. This was the situation as at the time when the appellants were arraigned before the Chief Magistrate Court, Jos who ordered their detention in prison custody. It will therefore be totally out of place to say that the trial High Court who refused their application for bail failed to properly exercise its judicial discretion judiciously and judicially having regard to the above facts presented to him.

Similarly, the court below could not be blamed for upholding the decision of the trial court by dismissing the appellants’ appeal. This is because there were no justifiable reasons placed before it to warrant querying or tampering with the trial Judge’s exercise of his judicial discretion by refusing the application before him in the case. The learned trial Judge went further when he ordered in the concluding paragraph of his ruling that:-

“Investigation into the matter be stepped up and the applicants be charged before High Court forthwith.”

The ruling of the High Court was delivered on 30th October, 2003 while the judgment of the Court of Appeal was delivered on 8th December, 2004. On 13th December, 2007, when this appeal came up for hearing in this court, the order of the learned trial Judge made on 30th October, 2003 that the police should step up investigation into the matter and charge the appellants before the High Court forthwith had not been complied with. This is because we were told that the appellants were still being remanded in prison custody on the order of the Jos Chief Magistrate. The flagrant breach of that order on the part of the police has given credence to the averment in paragraph 3(g) of the affidavit in support of the appellants application where it is averred:

“That the respondent is not willing to prosecute the applicants. That the respondent only wants the applicants to be detained in prison custody without prosecution.”

The disclosure that the appellants are yet to be arraigned before the High Court since their arrest in October, 2002 is totally unacceptable and cannot be justified under the guise that the police are yet to complete their investigations.

In the result, there is absolute justification in not allowing the continued detention in prison custody of the appellants as ordered by the Jos Magistrate Court. The appeal is therefore allowed. It is hereby ordered that the appellants be allowed on bail each in the sum of N200,000 with two sureties each in the same amount. The sureties are to be resident in Jos area and supply proof of ownership of residence property in the Jos area

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SC.19/2005

Chief Etete S. Owoh & Ors. V. Chief Kingston U. Asuk & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, JSC

This is an appeal from the decision of the Court of Appeal Port-Harcourt Division. In the judgment delivered by that Court on 14th February, 2001, the Court set aside the decision of Woryi J. of the High Court of Justice of Rivers State Bori Division delivered on 3rd April, 1996 striking out the Plaintiffs’ action brought against the Defendants. The Appellants who were the Plaintiffs at the trial High Court, for themselves and as representing Asarama Community, brought their action in 1988 against the Respondents who were the Defendants in that Court and in paragraph 30 of their statement of claim, sought for the following reliefs;

“(1.) A Declaration that the Defendant in the 1st set of Defendants is not the Okan-Ama His Royal Highness the Okan-Ama of Asarama, Andoni.

(2.) A Declaration that his purported appointment, installation and coronation of the 1st set of Defendant by the 2nd Defendants as His Royal Highness the Okan-Ama of Asarama-King of Asarama on the 8th of January, 1988 is unconstitutional and against the custom and tradition of Asarama/Andoni people and to that extent irregular, null and void and of no effect whatsoever. (3.) A Declaration that the said purported installation and coronation is clandestine and fraudulent on the Asarama people and is null and void.

(4.) A Declaration that the procedure adopted by the 2nd set of Defendants in the appointment, installation and coronation of the 1st Defendant is irregular and contrary to the custom and tradition of Asarama/Andoni people and is thus null and void and of no effect whatsoever.

(5.) An injunction restraining the 1st set of Defendant from parading himself as the Okan-Ama-King of Asarama in the Andoni or anywhere.

(6.) An injunction restraining the 2nd set of Defendants, their servants, agents, or privies from holding out, parading or in any manner howsoever representing the 1st set of Defendant as the Okan-Ama of Asarama.”

The case went into hearing on pleadings before Mannuel J. where the Plaintiffs’ first witness testified in chief. However in 1992, the case was transferred to the same Court presided by Woryi J. where the matter was commenced afresh. It was here that on 8th November, 1995, the parties told the trial Court that they had settled their dispute and that the Plaintiffs were no longer pursuing their claims against the Defendants. Learned Counsel to the Plaintiffs explained to the Court that he was merely instructed to withdraw the action and not to apply for its discontinuance because the parties had decided on their own without involving their learned Counsel, to settle their dispute. Learned trial Judge however was of the view that since the matter was part-heard, a formal application was required. While awaiting the parties to take appropriate steps to terminate the proceedings in the matter before the trial Court, another set of interested parties in the case applied to be joined as Plaintiffs. At the same time learned Counsel to the existing parties in the case who had earlier agreed to settle their dispute, also filed their terms of settlement duly executed not by the parties to the action themselves but by their learned Counsel.

The motion on notice by the parties wishing to join the action as Plaintiffs was heard by the trial Court and in its ruling, the application was dismissed. In the same ruling delivered on 3rd April, 1996, the learned trial Judge also considered the Terms of Settlement filed by the parties but refused to adopt the same as the judgment of the Court on the ground that the Court was not satisfied that the parties themselves were involved in the drawing up of the said Terms of Settlement. Part of this ruling at pages 165 – 166 of the record of appeal reads –

“Thus a document containing the terms of settlement in a case, fought on a representative capacity, cannot be adopted by the Court to have favoured fair trial or uninahibited, mutual consent, if it is not duly executed by all or any of the authorizing or consenting parties in the suit. Howbeit, parties may settle orally without filing a written terms of settlement. It is not the duty of Courts to compel parties who have reported amicable settlement out of Court, to continue the Court prosecution of such mutually settled case.

For these reasons, and in the interest of justice, the final order of this Court shall be:

(1) That this case shall be and it is hereby, deemed as settled mutually and amicably by the parties themselves out of Court.

(2) That the document titled ‘Terms of Settlement’ dated 10th January, 1996 and filed by the parties on 7th February, 1996, shall be and it is hereby rejected by the Court. The Court accordingly hereby declines to adopt it as the judgment of this Court, for its not being duly, sufficiently and personally executed by the hands of any of the litigating parties themselves.

(3) That having been deemed as mutually and amicably settled out of Court by the parties; the oral testimonies having been long voluntarily suspended by the Plaintiffs, and by virtue of the Plaintiffs’ reports of amicable settlement made to the Court by the parties in the Open Court, this suit No. BHC/44/88 filed on 23rd September, 1988, is hereby struck-out of the cause list.”

The Defendants, now Respondents in this Court, were not happy with the refusal of the trial Court to adopt the Terms of Settlement filed by the parties as the judgment of he Court and therefore appealed against it to the Court of Appeal which after hearing the appeal, allowed it, set aside the decision of the trial Court and entered a consent judgment in accordance with the Terms of Settlement executed by the learned Counsel to the parties.

Dissatisfied with the judgment of the Court of Appeal delivered on 14th February, 2001, the Plaintiffs now Appellants have appealed to this Court with the leave of the Court of Appeal granted on 9thMay, 2001. In the brief of argument filed on behalf of the Appellants, their learned senior Counsel identified two issues for determination from the grounds of appeal. The issues are

“(i.) Whether the Defendants appeal before the Court of Appeal was competent and the Court of Appeal had jurisdiction to entertain the same.

(ii.) Whether, from the circumstances of this case, the Court of Appeal was right to allow the Defendants’ appeal and enter consent judgment in line with the purported terms of settlement signed by Counsel alone.”

In the Respondents’ brief of argument however, as many as six issues were formulated by their learned Counsel. The issues are –

“(i.) Whether the learned trial Judge in his Ruling of 8th November, 1995, on the withdrawal, made an order that the parties must file a formal application before they would withdraw the suit.

(ii.) Whether if he so ordered, he was right to have done so.

(iii.) Whether the order as made and applied/corrected by the Court of Appeal was a final or an interlocutory order.

(iv.) Whether the learned Judge was right in refusing to adopt the Terms of Settlement signed by Counsel on both sides in his decision for reason given by him.

(v.) Whether the Defendants’ Notice of Appeal to the Court of Appeal at pages 121 to 124 of the Record was filed within or out of time.

(vi.) Whether there was a proper basis for a consent judgment in this case.”

The issues as identified in the Appellants’ brief of argument which clearly arose from the grounds of appeal filed by the Appellants are the real issues to be considered and resolved in this appeal. Although the Respondents have formulated six issues in their brief of argument, issues (i) and (ii) as rightly observed by the Appellants in their further Amended Reply brief, do not arise from any of the grounds of appeal filed by the Appellants. The two issues in the Respondents’ brief are therefore irrelevant and shall be ignored in the determination of this appeal. See Ugo v. Obiekwe (1989) 1 N.W.L.R. (Pt. 99) 566 and Sanusi v. Ayoola (1992) 9 N.W.L.R. (Pt. 265) 275 at 291.

The Appellants must however realise that their success in this appeal depends entirely on the force of their submission on the issues raised in their own brief of argument because the apparent shortcoming in the Respondent’s brief of argument will have no bearing whatsoever in strengthening the case of the Appellants. See Akpan v. The State (1992) 6 N.W.L.R. (Pt. 248) 439 at 466.

Going back to the issues for determination in this appeal, the first one is whether the Defendants’ appeal before the Court of Appeal was competent and the Court of Appeal had jurisdiction to entertain the same. It was argued for the Appellants that taking into consideration that the Terms of Settlement filed by the parties was rejected by the trial Court, coupled with the fact that the decision of the trial Court striking out the Plaintiffs suit did not decree anything in favour of any of the parties that may be regarded as a determination of the rights of the parties in anyway, the decision of the trial Court was an interlocutory decision within the con of Section 220 and 221 of the Constitution of the Federal Republic of Nigeria 1979, and Section 25 of the Court of Appeal Act. Several cases were cited and relied upon in support of this submission. The cases include Ifediora v. Ume (1988) 2 N.W.L.R. (Pt. 74) 5; Kassim v. Ebert (1966) 1 All N.L.R. 65; Igunbor v. Afolabi (2001) F.W.L.R. (part 59) 1288-1289 at 1301; Woluchem v. Wokoma (1974) 3 S.C. 153 at 170-171 and Asore v. Lemomu (1994) 7 N.W.L.R. (Pt. 356) 284 at 290-291. Learned Appellants’ Senior Counsel pointed out that since the decision of the trial Court striking out the suit was an interlocutory decision given on 3rd April, 1996, which by Section 25(2)(a) of the Court of Appeal Act must be appealed against within 14 days, but the Notice of Appeal against that decision was not filed until 8th May, 1996, 35 days after the Ruling, the appeal was incompetent for having been filed out of time thereby depriving the Court below of jurisdiction to hear it.

In this issue, the Defendants’ appeal to the Court of Appeal was also attacked on the grounds that all the grounds of appeal were of mixed law and fact requiring leave to appeal under Sections 220(1) and 221 of the 1979 constitution as laid down in the cases of Anoghalu v. Oraelosi (1999) 10 S.C.N.J. 1 at 11; Apena v. Aiyetobi (1989) 1 N.W.L.R. (Pt. 95) 85 at 94; J.LT.A. v. Amrani (1994) 3 N.W.L.R. (Pt. 332) 296 at 319; Western Steel Works Ltd. v. Iron & Steel Workers Union (1986) 6 S.C. 35 at 52 and Chacharos v. Ekimpex Ltd. (1988) 1 N.W.L.R. (Pt. 68) 88 at 90. It was finally submitted that since the Court of Appeal had no jurisdiction to hear and determine the appeal, it was not competent to set aside the decision of the trial Court and to substitute same with a consent judgment. This Court is therefore urged on this issue, to allow the appeal, set aside the decision of the Court of Appeal and restore the decision of the trial Court and dismiss the Defendant’s appeal to the Court of Appeal.

Learned Counsel to the Respondents who were the Defendants at the trial Court saw the Ruling of the trial Court against which the Respondents appealed to the Court of Appeal, as a final decision of the trial Court which requires no leave to appeal before conferring jurisdiction on the Court of Appeal to entertain the appeal having regard to Section 220(1)(a) of the 1979 Constitution; that the decision having finally disposed of the issues in contention between the parties, the decision was final and not interlocutory as claimed by the Appellants. Learned Counsel called in aid the cases of Union Bank (Nigeria) Ltd v. Penny Mart Ltd. (1992) 2 N.W.L.R. (Pt. 240) 228; Nwosu v. Ofor (1991) 2 N.W.L.R. (Pt. 175) 275 and Ogbogu v. Ndiribe (1992) 6 N.W.L.R. (Pt. 245) 40, in support of this submission. Learned Counsel concluded by urging this Court to hold that the issue of lack of jurisdiction or competence on the part of the Court of Appeal to hear and determine the Respondents’ appeal before it was misconceived particularly when all the grounds of appeal filed in support of the appeal, were grounds of law.

The question for determination in this issue as to whether or not the decision of the trial Court was interlocutory or final has been well settled by this Court in many of its decisions in several cases. It is generally accepted that there are two tests for determining whether an order or decision of Court is interlocutory or final. This view is polarized between the cases which have applied. The less acceptable test formulated by Lord Esher in Salamans v. Warner (1891) 1 Q. B. 734, and those which have applied the more widely accepted view formulated by Lord Alverstone C.J. in Bozson v. Altrincham Urban District Council (1903) 1. K. B. 547 at 548 – 549 where the learned lord said –

“It seems to me that the real test for determining this question ought to be this. Does the judgment or order as made finally dispose of the rights of parties If it does, then I think it ought to be treated as a final order, but if it does not, it is then in my opinion, an interlocutory order.”

The Courts in this Country, it would seem, have quoted and consistently applied the above view of Lord Alverstone. This is because the words “interlocutory” or “final” in relation to the decision, judgment or order of Court, are not clearly defined or interpreted in any law, rules of Court or the Constitution itself which only defines the word “decision” as “any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. ”

Therefore the interpretation given to the words “interlocutory” or “final” in several decisions of this Court is that if the order, decision or judgment of a Court finally and completely determines the rights of the parties in the case, it is a final decision. However, where the order, decision or judgment of a Court does not finally and completely determine the respective rights of the parties submitted for determination by the Court in the case, it is an interlocutory decision only. These cases have also generally decided that in order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order or decision. In other words the determining factor is not whether the Court has finally determined an issue but it is whether or not it has finally determined the rights of the parties in the claim before the Court. See Oguntimehin v. Omotoye (1957) 2 F.S.C. 56; Afuwape v. Shodipe (1957) S.C.N.L.R. 265; Ude v. Agu (1961) 1 All N.L.R. 65; Ebet v. Kassim (1966) N.M.L.R. 123; Omonuwa v. Oshodin (1985) 2 N.W.L.R. 2 N.W.L.R. (Pt. 10) 924; Akinsanya v. U.B.A. Ltd. (1986) 4 N.W.L.R. (Pt. 35) 273; Ifediora v. Ume (1988) 2 N.W.L.R. (Pt. 74) 5 and Igunbor v. Afolabi (2001) 11 N.W.L.R. (Pt. 723) 184 at 165 where Karibi-Whyte stated the position of the law in this respect as follows –

“A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles some step or question but does not adjudicate the ultimate rights of the parties in the action. However, where the order made finally determines the rights of the parties, as to the particular issue disputed, it is a final order even if arising from an interlocutory application. For instance, an order of committal for contempt arising in the course of proceedings in an action is a final order- see Toun Adeyemi v. Theophilus Awobokun (1968) 2 All N.L.R. 318.”

Returning to the present case where the dispute between the parties that was before the trial Court for determination involves chieftaincy surrounding the appointment, installation and coronation of the 1st Defendant as Okan-Ama Paramount Ruler of Asarama Community of Andoni in Rivers State whose appointment was being challenged by the Plaintiffs/Appellants on the ground that he was not qualified to fill the vacant stool, while the Defendants/Respondents were asserting that the l51 Defendant/Respondent was qualified for the appointment, the question of whether the decision of the trial Court striking out the case was final or interlocutory needs very close examination of the facts giving rise to that decision. It is not in dispute that pleadings had been duly filed and exchanged between the parties and the Plaintiffs/Appellants’ case had been fixed for hearing before the issue of settlement of the matter out of Court cropped up. Although the Terms of Settlement drawn up and signed by the learned Counsel to the parties was duly filed on behalf of the parties for adoption by the trial Court as the judgment of the Court as agreed by the parties, the learned trial Judge who was not satisfied with the said Terms of Settlement which was not executed by the parties involved in the dispute but by their learned Counsel, rejected the document and proceeded to accede to the earlier application of the learned Counsel to the Plaintiffs/Appellants to withdraw the case as instructed by his clients and accordingly struck-out the action. Relevant part of this Ruling has been earlier quoted in full in this judgment. The Ruling of the trial Court delivered on 3rd April, 1996, refusing to adopt the Terms of Settlement as judgment of the trial Court and merely striking out the action filed by the Appellants against the Respondents, did not touch anything on the subject matter of controversy in the chieftaincy dispute between the parties not to talk of any determination of the respective rights of the parties in the action before the trial Court finally and on the merit.

Striking out of the Plaintiffs/Appellants’ action certainly does not finally determine the respective rights of the parties in the action, nor does it adjudicate ultimate rights of the parties in the dispute placed before the trial Court for determination. In this situation, where the claims or rights of the parties have not been examined or looked into by the trial Court and appropriate findings made thereon resulting in a determination, these claims or right effectively remain pending and can be revived by any of the parties in any other Court of concurrent jurisdiction or even the same Court that handed down the striking out order for relisting under the appropriate rules of the trial Court on such terms as may be granted on application. See Woluchem v. Wokoma (1974) 3 S.C. 153 at 170-171 where this Court said –

“We simply draw attention to the well known rule of practice that the Court is without power to review any matter which it has struck out save on the application of either party.”

Therefore having regard to the circumstances of this case, I entirely agree with the learned Counsel for the Appellants that the Ruling of the learned trial Judge striking out the Appellants’ action on 3rd April, 1996, was only an interlocutory decision. It was not a final judgment as strongly argued by the Respondents. Thus, being an interlocutory order or decision, the relevant provisions of the 1979 constitution and the Court of Appeal Act Cap 75 of the laws of the Federation of Nigeria 1990, must apply in any steps taken to appeal against the Ruling.

Having come to the conclusion that the decision of the trial Court of 3rd April, 1996, against which the Respondents appealed to the Court of Appeal by their Notice and Grounds of Appeal contained at pages 121-124 of the record of appeal is an interlocutory decision, next for determination is whether or not the appeal was filed within the time prescribed by Section 25 of the Court of Appeal Act Cap. 75 of the laws of the Federation 1990 which states –

“25(1) Where a person desires to appeal to the Court of Appeal, he shall give Notice of Appeal or Notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of subsection (2) of this Section that is applicable to the case.

(2) The periods for the giving of Notice of appeal or Notice of application for leave to appeal are:-

“(a.) In the appeal in civil case or matter, fourteen days where the appeal is against an interlocutory decision, and three months where the appeal is against a final decision.”

It cannot be over-emphasized that failure to comply with the statutory requirements such as the filing of an appeal within the specific period prescribed by law from the date of decision or within such further extended period as may be granted by an order of Court, deprives an appellate Court of its jurisdiction to entertain or hear the appeal. Such irregularity cannot be regarded as a mere technicality or misconception but constitutes a fundamental defect which renders the proceedings and judgment of the appellate Court in respect of such purported appeal, incompetent and consequently null and void. See F.I. Oranye v. O.T. Jibowu (1950) 13 W.A.C.A. 41; Ohenemoore v. Akesseh Tayee (1933) 2 W.A.C.A. 43 and Kudiabor v. Kudanu (1932) 6 W.A.C.A. 14. An irregularity that renders proceedings incurably defective and null and void, may not be waived as acquiescence cannot confer jurisdiction. See Skenconsult (Nig.) Ltd. and Anor. v. Godwin Ukey (1981) 1 S.C. 6 at 26; Management Enterprises Ltd. & Anor. v. Jonathan Otusanya (1987) 2 N.W.L.R. (Pt. 55) 1979 and Obimonure v. Erinosho & Anor. (1966) 1 All N.L.R. 250.

In the present case, the Respondents’ appeal that was heard by the Court below was manifestly irregular and incurably defective as it was clearly filed out of time without the leave of that Court for extension of time to file it in accordance with the provisions of Order 3 Rule 4 of the Court of Appeal Rules. This is because on the face of the Notice of appeal filed by the Respondents as Appellants before the Court of Appeal, it shows at page 124 that the appeal was filed on 8th May 1996 on payment of the appropriate filing fees on Revenue Receipt No. 626746. Taking into consideration that the interlocutory decision being appealed against was given on 3rd April, 1996, it means that the appeal was not filed until after 35 days of the delivery of the decision of the trial Court. The fact that the Respondents’ appeal was filed out of the time prescribed by law is not at all in doubt. The appeal as filed was thus incompetent thereby depriving the Court of Appeal of jurisdiction to hear and determine the same. See Madukolu & Ors. v. Nkendelim & Ors. (1962) 2 S.C.N.L.R. 341; (1962) 1 All N.L.R. (Pt. 4) 587. In the absence of a valid and competent appeal before it, the Court below was in grave error to have proceeded to hear and determine the appeal by setting aside the decision of the trial Court striking out the Appellants/Plaintiffs case and substituting it with a consent judgment based on the Terms of Settlement rejected by the learned trial Judge. It was an exercise in futility as the entire proceedings in the hearing of the incompetent appeal are a nullity. Although the issue was not raised at the Court below, having regard to its fundamental nature, it was properly raised by the Appellants in this appeal. See Western Steel Workers Ltd v. Iron & Steel Workers Union (1987) 1 N.W.L.R. (Pt.49) 284 and Chacharos v. Ekimpex Ltd. (1988) 1 N.W.L.R. (Pt. 68) 88 at 90. Had the issue of competence of the Respondents’ appeal been raised at the Court below, the appropriate order that Court should have made would have been to strike out the appeal. See Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 N.W.L.R. (Pt. 199) 501; Esuku v. Leko (1994) 4 N.W.L.R. (Pt. 340) 625; Gombe v. P.W. (Nig.) Ltd. (1995) 6 N.W.L.R. (Pt. 402) 402 and the recent decision in Alor & Anor. v. Ngene & Drs. (2007) All F.W.L.R. (Pt. 362) 1836 at 1846-1847. The Notice of Appeal being incompetent, the need to examine the grounds contained therein to determine whether they are grounds of law or not, does not even arise. The appeal having succeeded on this fundamental issue of competence alone, there is no longer any need to look into the second issue predicated on the validity of the consent judgment entered by the Court below as the issue has been swept away by the incompetence of the Respondents’ appeal.

In the result this appeal succeeds and the same is hereby allowed.

The consent judgment of the Court below entered without jurisdiction on 14th February, 2001, is hereby set aside and replaced with an order striking out the Defendants/Respondents’ appeal.

I do not regard it appropriate to make any order on costs.

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SC.262/2001

Chidozie Ifekandu & Anor. V. Julius Uzoegwu (2008)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

The applicants by their motion filed on 5-3-07 seek the following reliefs:

“1.Extending the time within which to apply for leave to appeal against the judgment of the Court of Appeal, Enugu Division delivered on 2nd April, 2001 on grounds of mixed law and facts and or facts;

2. Granting leave to appeal against the said decision on mixed law and facts and/or facts alone.
3. Extending the time to file notice of appeal against the said decision on mixed law and facts and/or facts alone.
4. Granting leave to file and argue three additional grounds of appeal on law and mixed law and facts.
5. Extending of the time within which to file the appellants brief in the said appeal.

And for such further and/or other order as to the court may seem fit.”

In paragraphs 3 to 9 of the affidavit in support of the motion, the 1st appellant/applicant deposed thus:

“3.The plaintiff instituted this suit against me alone on 22nd February, 1977, and on 7th October, 1994, the High Court of Anambra State sitting in the Onitsha Judicial Division, dismissed the plaintiffs suit with costs.

4. On appeal by the plaintiff, the Court of Appeal, Enugu Division, set aside the judgment of the High Court and in substitution therefore awarded the plaintiff the reliefs he sought in the suit on 2nd April, 2001.

5.The 2nd defendant and I filed Notice of Appeal dated 8th May 2001 on 11th May, 2001, containing fourteen grounds of appeal, all except the omnibus ground said to be errors in law.

6.The legal practitioner who handled my defence in the High Court and who represented me in the Court of Appeal filed the said Notice and Grounds of Appeal as well as a motion for stay of execution of the said judgment pending the determination of the appeal to this Court.

7. I then briefed A. N. Anyamene Esquire, Senior Advocate of Nigeria to handle the appeal. The record of proceedings for use in the appeal was forwarded to this Court by the Deputy Chief Registrar of the court below under cover of his letter dated 3rd January, 2002.
8. Mr. A. N. Anyamene advises me that though the grounds of appeal were tagged errors in law many of them are in fact grounds of mixed law and fact for which leave must be obtained to appeal on the said grounds.
9. No leave to appeal on grounds of mixed law and fact or fact alone was obtained.”

The judgment of the court below and the proposed Notice of appeal were annexed as exhibits to the application.

The respondent filed a counter-affidavit. Paragraphs 10 to 37 of the counter-affidavit read thus:

“10.That paragraphs 5, 7, 9,10,11,12 and 13 are not correct and untrue, this I verily believe.

11.That the Applicants have not manifested good faith in this matter, this I verily believe.

12. That the Applicants filed the Notice of Appeal long before the Court of Appeal delivered its Judgment in this case.

13.That I believe that the Registrar of the Court of appeal doubted the honesty of the Defendants that he wrote on the process “Time 9.50a.m, on 2/4/2001″.

14.That by that time, the Court of Appeal had not started sitting and had not delivered any judgment to be appealed against.

15.That I herewith exhibit a copy of the said Notice of Appeal, which speaks for itself.

16.That the Registrar assessment is shown to be 2-04-2001, the very day of the Judgment but before the Judgment was actually delivered.

17.That the copy of the notice of appeal exhibited in this motion is not a copy of the Notice of Appeal filed in the Court of Appeal, Enugu before the judgment was given that morning.

18.That the said copy of the Notice of Appeal is herewith exhibited and marked exhibit ‘A’. It contains the said endorsements by the Registrar to show it was filed before the judgment of the Court was delivered that day.

19.That I believe that it was improper for the defendants/appellants to file Notice of Appeal to the Supreme Court in the Court of Appeal long before the Court of Appeal delivered its judgment.

20.That I believe that the defendants/appellants have not manifested any good faith all along to deserve the discretion of this Honourable Supreme Court to be exercised in their favour for the reliefs sought in the Motion.

21.That the judgment of the Court of Appeal was delivered since 2nd day of April, 2001.

22.That the appellants on the date of the Judgment also prepared motion for stay of execution. 23. That a copy of the said Motion is herewith exhibited and marked exhibit ‘B’, the affidavit in support is also marked exhibit ‘B1’.

24.That the plaintiff/respondent’s counter affidavit is exhibited as exhibit ‘C’.

25.That when we carne for the motion, the appellants withdrew it and it was struck out.

26.The appellants alleged that the Appeal had been entered at the Supreme Court when the Record of Appeal had not even been compiled.

27.That I believe that no competent appeal to the Supreme Court had been filed as all the grounds were on facts and at best mixed law and facts.

28.That when eventually the Appellant filed motions in the Supreme Court, we came to the Supreme Court but when the Motions were called up the Appellants again withdrew the motions and they were struck out by the Supreme Court.

29.That said Motions is herewith exhibited as exhibit ‘D’, ‘D1’.

30.That thereafter, the Appellants filed yet another motion on the same issue but never took steps to move it.

31.The motions were abandoned and were struck out by the Supreme Court for want of Diligent Prosecution.

32.That the Order of the Supreme Court striking out the Motions is herewith exhibited as Exhibit ‘E’.

33.That as the Appellants did not appear to be serious with the appeal all along, the Plaintiff/Respondent who was being dribbled by the Appellants who did not show any seriousness or diligence to prosecute the appeal had no other recourse than to file a Motion in the Supreme Court praying the Court to dismiss or strike out the Appeal.

34.That this motion was duly served on the Appellants.

35.That Evidence of service of the said Motion is herewith exhibited as ‘F’, ‘F1’.

36.That after due consideration of the Motion, this Honourable Supreme Court on the 5th day of April, 2006 formally struck out the Appeal.

37.That the Ruling of the Supreme Court is herewith exhibited and marked exhibit ‘G’.”

On 12th May, 2008, we heard arguments on the application. Chief A. N. Anyamene S.A.N. for the applicants urged us to grant the application: The respondent’s counsel Chief Ejike Ume S.A.N. opposed the application. He stated that, the applicant had in fact filed an appeal before the judgment of the court below was delivered. He urged us to view this as an abuse of the process of the court. Counsel drew our attention to exhibit ‘H’ annexed to the counter-affidavit which is photocopy of the order made by this Court on 5-04-06 striking out the appeal for want of diligent prosecution.

I have given consideration to the arguments of senior counsel who appeared for the parties. It is my view that the applicants have made enough case for the grant of the application. Order 2 Rule 31 of the Supreme Court Rules provides:

“31.(1)The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice.

(2)Every application for an enlargement of time in which to appeal or in which to apply for leave to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal or to apply for leave to appeal within the prescribed period. There shall be exhibited or annexed to such affidavit-

(a) a copy of the judgment from which it is intended to appeal;

(b) a copy of other proceedings necessary to support the complaints against the judgment; and

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

(3) When time is so enlarged a copy of the order granting such enlargement of time shall be annexed to the Notice of Appeal.”

Under the above rules I ought to bear in mind two essential matters, namely-

1. Whether the applicants have given good and substantial reasons for the failure to appeal within time.
2. Whether the applicants have shown prima facie good cause why the appeal should be heard. :

There is no doubt that the applicants have manifested a measure of dilatoriness in the pursuit of this appeal. I bear in mind however that the right of appeal is derived from the Constitution of Nigeria and ought not to be readily denied to an applicant. Chief Ume S.A.N. for the respondent stressed that the applicants had filed a notice of appeal even before the judgment of the court below was filed and that the notice of appeal exhibited in this application was not the Notice of Appeal previously filed. He argued further that a previous appeal filed by the applicants was struck out. I do not see these as sufficient reason to refuse the application since a party may file more than one Notice of Appeal provided they are filed within the period I allowed by law.

In conclusion, I make the following orders:

1. Time within which to seek leave to appeal against the judgment of the Court of Appeal, Enugu delivered on 2-04-01 is extended till today.
2. Leave to appeal against the said judgment on grounds other man law is granted.
3. Time to appeal against the said judgment is extended by 30 days from today.

On 5-4-06, the appeal previously filed by the applicants was struck out. As there is no existing appeal before this court, the 4th prayer by applicants to file three additional grounds of appeal is inappropriate. It is struck out. In the same manner, the prayer for extension of time to file appellants brief is premature since there is as yet no appeal before this court. Prayer 5 is accordingly struck out.

I award N30,000.00 costs in favour of the respondent.

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SC.28/2002