The Nigerian Navy & Ors V. Lionel Okon Garrick (2005)

LawGlobal-Hub Lead Judgment Report

OMOKRI, J.C.A.

This is an appeal brought by the appellants against the Ruling of Michael Edem, J., of the High Court of Cross River State, sitting at Calabar, in suit No. HC/MSC/183/2001 delivered on 10/9/2001.

The present respondent was one of the applicants before the court below. He alleged that on 11/18/2001 at about 6.10 a.m. he and other occupants were forcefully and unlawfully thrown out of his residence at No. 20 Ikot Esu Square, Diamond Hill, Calabar, by officers and men of the Nigerian Navy. He also alleged that they destroyed his house and other properties and held him hostage on the said property for eight hours. Sequel to the flagrant and unlawful abuse of his fundamental rights, the respondent on the 13/8/01 filed a motion ex-parte before the High Court of Cross River State for leave for the enforcement of his fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules, 1979. Leave was granted to the respondent accordingly on the same day by the court below.

Thereafter the respondent on 15/8/01 brought a motion on notice where he sought for the same reliefs as in the motion ex-parte. On 10/9/2001, the court below delivered its ruling and granted all the prayers of the respondent. The enrolled Order at pages 27 -28 of the record is as follows:

“It is hereby ordered as follows:

1. That the applicant is entitled to the right of respect for the dignity of his person and shall not be subjected to inhuman or degrading treatment.
2. That the applicant is entitled to his right of personal liberty and as a free citizen of Nigeria cannot be deprived of such liberty.
3. That the applicant has a right of private and family life which includes his privacy and the privacy of his home which rights are guaranteed and protected by the Constitution of the Federal Republic of Nigeria.
4. That the applicant as a free citizen of Nigeria has a right to acquire and own immovable property anywhere in Nigeria.
5. That the moveable property of the applicant and his interest in the movable property situate at and known as No. 10 Ikot Esu Square, Diamond Hill, Calabar cannot be compulsorily acquired by the respondents except in the manner and for the purpose prescribed by the Constitution of the Federal Republic of Nigeria.
6. That the continued lock-out of the applicant from his place of abode at No. 10 Ikot Esu Square is unconstitutional, unlawful, illegal, null and void.
7. That the applicant is entitled to re-enter his property and the respondents are hereby ordered to give effect to the right.
8. That an Order of perpetual injunction shall be and is hereby issued restraining the respondents whether by themselves, their agents, officers, servants and or persons acting in any manner whatsoever with the applicant’s enjoyment of his fundamental rights in issue herein.
9. And that the sum of N50,000,000.00 (Fifty Million Naira) is assessed and fixed as general damages for the applicant against all the respondents.”

Dissatisfied with the ruling and orders of the court below, the appellants appealed to this court on 4 grounds in their notice of appeal duly filed on the 9/10/01. From the 4 grounds of appeal the appellants distilled 3 issues for determination in their brief on 22/9/03.

“1. Whether the lower High Court had jurisdiction to hear this case. This issue relates to grounds 1, 2 and 3.

2. Whether the learned trial Judge ought to have granted the respondent’s relief not claimed by the respondent. The issue is related to ground 4.
3. Whether the respondent was entitled to the declaratory injunctive reliefs granted in his favour by the lower court. This issue is related to ground 4.”

The respondent brought a notice of preliminary objection dated 28/6/04 and filed on 29/6/04 pursuant to Order 3 rule 15 of the Court of Appeal Rules, 2002. He also raised same at page 4 in his brief filed on 22/6/04. In the alternative, the respondent at page 7 of his brief formulated 2 issues for determination. The issues are:

“1. Whether the High Court of Cross River State had jurisdiction to hear this case.

3. Whether the respondent is entitled to the reliefs granted by the High Court.”

Before proceeding further in this judgment I must point out that since the parties in this appeal filed and exchanged their briefs of argument, the appellants and their counsel have not put up any appearance before this court despite their being served on several occasions with hearing notice for this appeal. Having carefully examined the proofs of service in the courts file as the court is entitled to do following the case of Okafor v. Okafor (2000) FWLR (Pt.1) 17 at 19; (2000) 11 NWLR (Pt.677) 21; and being satisfied that the appellants were duly served with the notice of hearing of this appeal but they have refused, failed or neglected to appear before this court to present oral arguments, I shall treat the appeal as having been duly argued pursuant to Order 6 rule 9(5) of the Court of Appeal Rules, 2002.

At this juncture, I must point out that whenever a preliminary objection is properly raised attacking the competence of an appeal, it should be considered and determined or resolved first by the court at the preliminary or initial stage before going into the merits of the appeal. See Goji v. Ewete (2001) 15 NWLR (Pt.736) 273 at 280; Onyekwulunye v. Animashaun (1996) 3 NWLR (Pt.439) 637; NNB Plc. v. Imonikhe (2002) 5 NWLR (Pt.760) 294 and Yawe v. UBA (2000) 8 NWLR (Pt. 670) 739. I shall therefore consider the preliminary objection now.

The preliminary objection is predicated on two grounds namely:

“1. That this appeal is filed out of time and without leave to file out of time having first been obtained from this Honourable Court; and

2. That ground 3 of the Notice and Grounds of Appeal does not qualify as a ground of appeal.”

Learned counsel for the respondent, Mrs. Nella Andem-Ewa contended that the appellants stated at page 1 of their brief that the ruling was delivered on 10/9/2001 and the appellants filed their notice of appeal on 10/1/03, therefore, the appeal was filed outside the 3 months period prescribed by section 25 of the Court of Appeal Act. She submitted that in the circumstances, it is a condition precedent to the exercise of jurisdiction to hear the appeal by this court for the appellants to apply for leave. In other words, leave is a condition precedent to the exercise of the right of appeal where leave is required. She relied on NBCI v. Abiokwe (1997) 11 NWLR (Pt.527) 25 at 31; Njika v. Chiejina (2002) FWLR (Pt.117) 1178 at 1182 and 1195; Shaka v. Salisu (1996) 2 NWLR (Pt.428) 22 at 23 and Ayansina & Anor. v. Co-Operative Bank Ltd. (1994) 5 NWLR (Pt.347) 742 at 754. She then concluded that the appeal is incompetent.

On the second ground of the objection, learned counsel submitted that the appellants’ ground 3 is incompetent in that it does not qualify as a ground of law in an appeal. Relying on Thor Ltd. v. FCMB Ltd. (2002) 4 MJSC 179 at 181; (2002) 4 NWLR (Pt.757) 427 and 196, counsel urged the court to strike out both the ground and the issue for determination based on it.

The appellants have not filed any reply brief in response to the preliminary object on raised by the respondent both in his notice of preliminary objection and in his brief. Where an appellant fails to respond to a notice of preliminary objection to his appeal, he is deemed to have admitted all the issues raised and canvassed in the preliminary objection. See Goji v. Ewete (supra).Ordinarily, this would mean that the appellants have nothing to offer in answer to the preliminary objection in this appeal and I would have validly determined the preliminary objection on this score alone and dispose of this appeal. However, I feel obliged and indeed obligated to carefully consider the issues raised in the preliminary objection because of some observations I have made.

I observed that the first ground of the preliminary objection is premised on the appellants’ statement at page 1, paragraph 2.2 of their brief. This is rather unusual because the competence of an appeal is not dependent on statements made by an appellant in his brief but on his notice of appeal. Whether or not there is a competent appeal will definitely depend on whether the notice of appeal was properly and duly filed in accordance with the law. By the provisions of Order 3 rule 2(1) and 5 of the Court of Appeal Rules, all appeals shall be brought by notice (hereinafter called “notice of appeal”) to be filed in the registry of the court below and an appeal is deemed filed or brought when the notice of appeal has been duly filed in the registry of the court. See Ayoola v. Yahaya (2005) 7 NWLR (Pt.923) 122 at 135-136 and USA Ltd. v. Taan (1993) 4 NWLR (Pt.287) 368.

Secondly, I have carefully perused the notice of appeal which is at pages 41-46 of the record and I observed that it was properly and duly filed in accordance with the law on 9/10/01, barely 30 days after the court below delivered its ruling on 10/9/01. The ruling of the court below, delivered after hearing a motion on notice in a suit instituted under the Fundamental Rights (Enforcement Procedure) Rules, is a final decision because it finally determined the rights of the parties and finally of the matter or suit and the court below is now functus officio. See Ebokam v. Ekwenibe & Sons Trading Co. Ltd. (1999) 10 NWLR (Pt.622) 242; Menakanya v. Menakanya (1994) 5 NWLR (Pt.345) 515; Akpan v. Ekpo (2001) 5 NWLR (Pt.707) 502 at 511 and 512 and Lamurde v. Adamawa State JSC (1999) 12 NWLR (Pt.629) 82.

Now section 25(2)(a) of the Court of Appeal Act provides:

“25(2) The periods for giving of notice of appeal or notice of an application for leave to appeal are:

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

(b)…

Having regard to the facts and circumstances of this appeal, it is clear that by virtue of the provisions of section 25(2) of the Court of Appeal Act, the appellants had three months after the delivery of the ruling of the court below, which is a final decision, within which to appeal. See Agaka v. Oladeji (2000) 13 NWLR (Pt.683) 135 and Enaleocha v. ACB Plc. (2001) 5 NWLR (Pt.683) 135 at 681. Accordingly, the appellants having filed their notice of appeal on 9/10/01, their appeal was very well within time. Therefore, there was no need for the appellants to apply for leave. This notice of appeal is duly and properly filed and this appeal is competent.

What the appellants stated in paragraph 2.2 of page 1 of their brief of argument must be considered as a mere slip, which is curable. Whatever blunder committed by the appellants in their brief, the attitude of the Court of Appeal is not to punish counselor parties for the mistakes they may make in the presentation of their appeal. In Odeleye v. Adepegba (2001) 5 NWLR (Pt.706) 330 at 343; this court held that it will overlook the lapses in bad briefs so as not to punish parties unduly and in the interest of justice. See also Ekpan v. Uyo (1986) 3 NWLR (Pt.26) 63 and Akpan v. State (1992) 6 NWLR (Pt.248) 439. A cursory glance at the record of proceedings presented before this court revealed that the learned counsel for the appellants, Chief Bolaji Ayorinde erroneously referred to the date on which the court below certified all the documents in the record of appeal, which were stamped on 10/1/2003. See pages 27-44 of the record. In the circumstances, it was palpably wrong for the respondent to capitalize on the error made in the appellants’ brief and present a misleading picture before the court. The duty of counsel as ministers in the temple of justice is to assist the court to do substantial justice in every case. In any case, whatever error, discrepancy or irregularity in the appellants’ brief cannot vitiate or nullify the notice of appeal, which was duly filed on 9/10/01. That is the only notice of appeal filed by the appellants in the record and it is the only one before this court. In the instant appeal, the appellants having filed their notice of appeal on 9/10/01 against the ruling of the court below delivered on 10/9/01, is deemed to have been duly filed and pending before this court since 9/10/01. The statement made by the appellants in their brief is immaterial and irrelevant. Therefore, the 1st ground of objection having been premised on a mere statement in the appellants’ brief has no leg to stand and it must fall. It follows therefore that the first ground of the preliminary objection is devoid of any substance or merit and I accordingly overrule it. See Nasco Mgt. Services Ltd. v. Amaku Trans. Ltd. (2003) 2 NWLR (Pt.804) page 290 at 327.

On the second ground of the objection, learned counsel for the respondent, Mrs. Nella Andem-Ewa contended that appellants’ ground 3 is incompetent because it does not qualify as a ground of law, rather it is a ground of fact and therefore the appellants ought to have sought for and obtained the leave of court before filing same.

Section 241(1)(a) of the 1999 Constitution provides:

“1. An appeal shall lie from the decisions of the Federal High Court or a High Court as of right in the following case.

(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”

It is significant to point out and to note that the provisions of section 241, (a) -(f) are disjunctive and not conjunctive. I have already held that the ruling of the court below is a final decision in the sense that it disposed of all the issues in the suit before it and it finally determined the rights of the parties in the suit. There is nothing left to be adjudicated upon by the parties before the court below now. See further Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924 and Akinsanya v. UBA Plc (1986) 4 NWLR (Pt.35) 273. In fact, the parties in this appeal did not contest the issue and it was not made an issue in this appeal.

I have also held that by virtue of section 25(2) of the Court of Appeal Act, the appellants’ notice of appeal having been filed on 9/10/01 against the ruling of the court below delivered on 10/9/01 was well within the 3 months period prescribed for filing their appeal. It is therefore glaringly clear that having regard to the provisions of section 241(1)(a) of the 1999 Constitution, the appellants do not require any leave to file their appeal. It does not matter that ground 3 is a ground of law or ground of mixed law and fact or ground of fact alone. The case of Thor Ltd. v. FCMB (supra) has no relevance to the facts and circumstances of this appeal and it is inapplicable. I therefore, see no merit whatsoever in the second ground of the preliminary objection and I hereby overrule it.

Having overruled the preliminary objection, I shall now proceed to consider the main issues in this appeal.

On issue 1, the appellants contended that they were not served with the originating and other processes in the court below. It was argued that there was no proper service on the appellants, therefore, the defect is fundamental and it vitiates the entire proceedings as it was held in Ajidahun v. Ajidahun (2000) 8 WRN 17; (2000) 4 NWLR (Pt.654) 605; M.G.F. (Nig.) Ltd & Anor. v. Gwus Int. Ltd (2001) 24 WRN 148; (2001) 9 NWLR (Pt.718) 413 and O. U. Insurance Ltd. v. Marine & General Ass. Co. (2001) 9 NWLR (Pt.717) 92.

The appellants also urged that the court below did not have the jurisdiction to determine the suit as all the appellants were agents and or agencies of the Federal Government of Nigeria and were therefore not subject to the jurisdiction of the High Court of Cross River State by virtue of section 251(1)(r) of the 1999 Constitution. They relied on Mil. Adm. of Benue State v. Abayilo (2001) 5 NWLR (Pt.705) 19 at 35 and Govt. of Kwara State v. Gafar (1997) 7 NWLR (Pt.511) 51. Furthermore, the appellants argued that the appearance of the State counsel, Joseph Efa, Esq., on behalf of the respondent at the court below and his endorsement of the court processes vitiated the jurisdiction of the court below.

On issue 2, the appellants contended that the trial Judge was wrong to have granted reliefs in respect of No. 10, Ikot Esu Square, Diamond Hill, Calabar, when there was no such claim before it because the relief claimed was in respect of No. 20, Ikot Esu Square, Diamond Hill, Calabar. He referred to Eghaeuba v. Oruonghae (2001) 11 NWLR (Pt.724) 318; UBN Plc. v. Ekulo Farms Ltd. (2001) 7 NWLR (Pt.711) 21; Salalu v. Para-koyi (2001) 1 NWLR (Pt.695) 446 and Necha v. INEC (2001) 3 NWLR (Pt.699) 74.

On issue 3, it was the contention of the appellants that the trial Judge ought not to have granted the declaratory injunctive relief without hearing evidence as the respondent can only succeed on the strength of his own case. They relied on Kodilinye v. Odu (1935) 2 WACA 336; Idundu v. Okumagba (1976) 9 – 10 SC 227; Mil. Adm., Akwa Ibom State v. Obong (2001) 1 NWLR (Pt.694) 214 at 235 and Udo v. C. S. N.C. (2001) 14 NWLR (Pt.732) 116.

On the respondent’s issue 1, Mrs. Nella Andem-Ewa pointed out that this court had, on application by the respondent, admitted the proofs of service of court processes issued out of the court below to form part of the records of proceeding in this appeal. She then submitted that the proof of service is conclusive proof that the appellants were served with the court processes at the court below. She relied on Rector, Kano State Polytechnic v. Dan Agundi (2002) FWLR (Pt.127) 1058 at 1060 and 1067 and A.-G., Anambra State v. Okeke (2002) FWLR (Pt.1120) 175 at 190; (2002) 12 NWLR (Pt.782) 575

On the parties before the lower court, learned counsel submitted that the jurisdiction of the court is determined by the cause of action and not the parties and in the instant case on appeal, the cause of action before the court below is admittedly, the infringement of the respondent’s fundamental human rights. She referred to Western Steel Workers Ltd. v. Iron and Steel Workers Union of Nigeria & Ors. (1987) 1 NSCC 133 at 140; (1987) 1 NWLR (Pt.49) 284; Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (1983) NSCC 226; (1983) SCNLR 296 Federal Mortgage Bank of Nig. v. Olloh (2002) 8 MJSC 82 at 91; (2002) 9 NWLR (Pt.773) 475 and A.-G., Abia State & Ors. v. A.-G., Federation (2003) FWLR (Pt.152) 131 at 201; (2003) 4 NWLR (Pt.809) 124 She contended that the court below had jurisdiction to entertain the respondent’s claim by virtue of section 46(1) of the 1999 Constitution.

On the respondent’s issue 2, Mrs. Nella Andem-Ewa submitted that the appellants are merely trying to magnify a slip of the pen or clerical/typographical error into an issue. She relied on Lebile v. The Registered Trustees of Cherubim and Seraphim Church (2003)1 SC (Pt.1) 25 at 36; (2003) 2 NWLR (Pt.804) 399; Ejeka v. The State (2003) 6 MJSC 83 at 86; Owhonda v. Ekpechi (2003) 12 MJSC 1 at 19; (2003) 17 NWLR (Pt.849) 326 and Ndulue v. Ibezim (2002) 12 MJSC 150 at 168, and submitted that only mistakes or errors which are so substantial as to result in a miscarriage of justice would be countenanced by the appellate court. She also contended that the parties are familiar with the identity of the property and where the parties are familiar with the land in dispute, the question of its identity or its certainty will cease to perplex the trial court. She argued further that it was a slip of the pen or a clerical error and the court below having visited the locus in quo was in no doubt as to the property it was referring to. She relied on Odofin v. Oni (2001) 1 DSCR 38 at 40; (2001) 3 NWLR (Pt. 701) 488.

Learned counsel referred to the appellants’ issue 3 and submitted that the respondent’s suit is founded upon the infringement of the respondent’s fundamental rights and all that the respondent needed to satisfy the court below was that his fundamental rights have been, is being or is likely to be contravened. She relied on F.R.N. v. Ifegwu (2003) 15 NWLR (Pt.842) 113 at 216 and concluded that the court below was correct in granting the reliefs sought.

Before proceeding further, it is important that I mention here that the appellants’ issues 2 and 3 are distilled from ground 4 alone. This is clearly wrong and contrary to the principle governing formulation of issues. One issue can be distilled from several grounds as the appellants did in respect of grounds 1,2 and 3 of their appeal.

But several issues cannot be formulated from a single ground. See Olowosago v. Adebanjo (1988) 4 NWLR (Pt.88)275 and Akilu v. Fawehinmi No.2 (1989) 2 NWLR (Pt.102) 122. It is needless to formulate the two issues from a single ground of appeal. Both issues 2 and 3 could be conveniently taken as one because they are similar and compatible. Perhaps, that was why the respondent formulated two issues only. I have carefully considered and reflected on the two sets of issues formulated for determination and they are virtually the same in their substance and nature so much so that one can be taken for the other. However, it is my view that in the circumstances, the two issues formulated by the respondent are more concise, succinct, apt and derivable from the grounds of appeal filed. I have therefore chosen to adopt and rely on them in this appeal.

On issue 1, the appellants contended that they were not served with the originating and other process in the court below. No doubt the issue of service is very fundamental to the jurisdiction and competence of the court. If there is no proper service, it follows that the action is improperly constituted and the court is without jurisdiction. See Skenconsult & Anor. v. Ukey (1981) 1SC 6; Onwuka v. Owolewa (2001) 7 NWLR (Pt.713) 695 and Adisa v. Teno Eng. Ltd. (2000)1 NWLR (Pt.695) 633. However, from the records of proceedings supplied and presented before this court, it appears that there is proof of service on the appellants. This court, in the course of hearing this appeal, admitted the proofs of service of the court processes issued out of the court below to form part of the records of proceedings in this appeal on 10/11/2004. The proof of service is conclusive proof that the appellants were served with the court processes of the court below.

The trial Judge in his ruling of 10/9/01 at page 18 lines 21 – 28 of the record considered the issue of service and found that the appellants were duly served. The learned trial Judge stated clearly that the proof of service was in his record. There is therefore no room for doubt or speculation as to the fact that the appellants were duly served at the court below. The court below was perfectly entitled to take judicial notice of its own proceedings and records and also their contents. See Osafile v. Odi Ltd. (1990) 3 NWLR (Pt.137) 130. Where in a proceeding the question arises whether or not a process of court has been served in the proceedings, it will be a strange thing for the court to ignore the proof of service afforded by its own record in the proceeding and hold that such process has not been served. See A.-G., Anambra State v. Okeke (2002) (supra). At pages 190 and 197 of the report, the Supreme Court held that:

“An affidavit of service of a court process is normally a non-contentious document required to be put on record for information of the court and the parties as to the fact and date of service in the proceeding. It cannot be a reasonable proposition that in that same proceeding in which it was filed, the law requires that that self same document should be proved before the court before it can be relied upon.”

I am therefore very satisfied that the proof of service in the record produced and presented before us sufficiently proved that the appellants were duly served. The behaviour of the appellants before the court below is now being repeated before this court. After filing and exchanging briefs, neither the appellants nor their counsels appeared before this court whereas there is proof of service on them. This court will not be surprise if the appellants in future revert to type and seek to hide under the cloak of improper service of the court process or that they were not served at all. I, therefore, resolve this issue in favour of the respondent and against the appellants.

On the parties before the court below, it was submitted that having regard to the fact that appellants were agents and or agencies of the Federal Government of Nigeria, they were not subject to the jurisdiction of the High Court of Cross River State by virtue of the provisions of sections 251(1)(r) of the 1999 Constitution. The respondent submitted that though the appellants are agents and agencies of the Federal Government, it is the cause of action that determines the jurisdiction of the court and not the parties before the court.

It is a fundamental principle of law that it is the claim of the plaintiff that determines the jurisdiction of the court, which entertains the claim. See Western Steel Works Ltd. v. Iron & Steel Workers’ Union of Nig. & Ors. (supra) and Adeyemi & Ors. v. Opeyori (1976) 1 FWLR 149; (1976) 9-10 SC 31. In the instant case on appeal, it is clear and undeniable that the reliefs sought by the respondent are brought under the Fundamental Rights (Enforcement Procedure) Rules pursuant to the provisions of section 46(1) of the 1999 Constitution and Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules. Looking at the actual cause of action of the respondent and considering same carefully, I am satisfied that it was properly brought under the Fundamental Rights Procedure. The respondent clearly stated his grounds on which the reliefs were sought, namely, the forceful and unlawful ejection and the barbaric and wanton destruction embarked upon by the officers and men of the Nigerian Navy, which acts were not denied by the appellants. The respondent’s house was vandalised and plundered. There was no court order to that effect. He was held hostage for 8 hours on his property. He was told not to return to his property except to pack out his personal belongings. There is no doubt that the acts of the officers and men of the Nigerian Navy are not permitted by law and cannot be justified. It is also my considered view that the acts of the officers and men of the Nigerian Navy in this case are not within the contemplation of the section 251(1)(r) of the 1999 Constitution, section 1(1) & (4)(a) of the Armed Forces Decree No. 105 of 1993 (as Amended) or section 1(1) & (2) of the Navy Act Cap.288, Laws of the Federation of Nigeria, 1990, or any other provision of the Constitution or any other law. I know of no law that will empower anyone to take the law into his hands or their hands as the case may be. Principally, the Navy Act, (op cit) provide that:

“The Navy shall be charged with:

(a) the Naval defence of Nigeria;

(b) the duty of assisting in the enforcement of the customs laws of Nigeria;

(c) the making of hydrographic surveys;

(d) training in naval duties; and

(e) such other duties as the National Council of Ministers may from time to time direct.”

The above “charge” did not include unlawful and forceful ejection, damage to property and false imprisonment. These are clear breaches or violation of the fundamental rights guaranteed under Chapter IV of the 1999 Constitution. Everybody (including private individual, public individual, government or police) is forbidden to take possession or repossession of premises by self-help, force, and strong hand or with a multitude of people. Everyone entitled to possession or repossession of premises can only do so by due process of the law. They must not take the law into their hands. They must apply to the courts for possession and act on the authority of the court. When the appellants decided to eject the respondent Viet Armis and without any order of court, they were breaking the law of the land, which they swore to defend. See Ojukwu v. Gov., Lagos State (1985) 2 NWLR (Pt.10) 806. Furthermore, a Federal Government Officer (which include the present appellants), does not Carry the stamp of Federal Government agency on his forehead wherever he goes or whatever he does. Whether he qualifies as such depends on the function he performs and what act he did that gave rise to the cause of action. See Okoroma v. Uba (1999) 1 NWLR (Pt.587) 359 at 381. The acts of the officers and men of the Nigerian Navy, is unlawful, barbaric and cannot by any stretch of the imagination be described as “an executive or administrative action or decision by the Federal Government or any of its agencies.” To say the least, their acts are most unfortunate particularly at this time of our nascent democracy where the rule of law is supreme. The acts are flagrant violations of the fundamental rights of the respondent guaranteed under sections 34, 35, 37, 43 and 44 of the 1999 Constitution as alleged. I am therefore satisfied that the reliefs of the respondent were rightly and properly brought under the Fundamental Rights Procedure.

Section 46(1) & (2) of the 1999 Constitution provides:

“1. Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.

2. Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within the state of any right to which the person who makes the application may be entitled under this Chapter.”

The above section is a special provision giving special jurisdiction to a High Court in a State for the enforcement of fundamental rights enshrined in Chapter IV. Any person including the respondent, whose fundamental right is breached or is being breached or about to be breached may therefore apply to a High Court in that State for redress. See Olutola v. University of florin (2004) 20 NSCQR 256 at 279; (2004) 18 NWLR (Pt.905) 416

Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 defines a court as meaning, the Federal High Court or the High Court of a State. What this means is that both the Federal High Court and the High Court of a State have concurrent jurisdiction. An application may therefore be made either to the Federal High Court in the State or to the High Court of the State which the breach occurred, is occurring or about to occur. See Grace Jack v. University of Agriculture, Makurdi (2004) 17 NSCQR 90 at 100; (2004) 5 NWLR (Pt.865) 208 per Kastina- Alu, JSC; Ogugu v. State (1994) 9 NWLR (Pt.366) 1 and Zakari v. I.G.P. (2000) 8 NWLR (Pt.670) 666 at page 682. In the case of Grace Jack v. University of Agriculture, Makurdi (2004) (supra), it was held as follows:

“…I would like to point out that section 42(1) of the Constitution of the Federal Republic of Nigeria (which is similar to section 46(1) of the 1999 Constitution) which I have reproduced above has provided the court the power for enforcement of fundamental rights as enshrined in Chapter IV. A person whose fundamental right is breached, being breached or about to be breached may therefore apply to a High Court in that State for redress. Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 which came into force on 1st January, 1980 defined Court as meaning “the Federal High Court or the High Court of a State.” What this means is this; both the Federal High Court and the High Court of a State have concurrent jurisdiction. An application may therefore be made either to the Judicial Division of the Federal High Court in the State or the High Court of the State in which the breach occurred, is occurring or about to occur.” (Italics mine)

It is therefore glaringly clear that for the purpose of enforcing his fundamental rights under section 46(1) of the 1999 Constitution and by the virtue of the provisions of Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979, the High Court of a State is vested with special jurisdiction to entertain, hear and determine such application. So, the jurisdiction of the High Court of Cross River State here, in this instant case on appeal, is undisturbed and it is intact. Therefore, it has jurisdiction in this matter. A High Court of a State has jurisdiction to hear and determine any application made to it in pursuance of the provisions of section 46(1) & (2) of the 1999 constitution and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any rights to which the person who makes the application may be entitled under the chapter.

The appellants in their brief relied on the provisions of section 251 (1) (r) of the 1999 Constitution and submitted that the appellants are agents or agencies of the Federal Government, therefore, the Federal High Court has exclusive jurisdiction in the manner or on any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action of the Federal Government or any of its agencies. It is necessary that I examine the provisions of section 251(1)(r) of the 1999 Constitution at this stage. It provides:-

“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters.

(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and…”

A careful perusal of the above provisions clearly reveal that there is nothing in it suggesting, indicating or implying that a person whose fundamental rights have been breached, is being or about to be breached should not prosecute his or her case under the fundamental rights procedure against the Federal Government or any of its agencies. Moreover, an action for the enforcement by a person of his fundamental rights is an action based upon an enactment, namely, the provisions of Chapter IV of the 1999 Constitution.

Section 46 of the 1999 Constitution is very clear, plain, simple and unambiguous. Being a Constitutional provision it should be interpreted so to give effect to the provision, and not to defeat it.

See Osahon v. F. R. N. (2003) 16 NWLR (Pt.845) 89 at 118 where this court held that:-

“Where the words of a statute are plain and unambiguous, the court’s function is simply to apply the words in their literary sense. This is because it is an abiding duty of the court not to introduce words into a piece of enactment and thereby defeat the purport of the enactment by giving a different colouration to it.”

Nowhere in section 251 of the 1999 Constitution was it stated that the provisions of section 46 is subject to section 251. In Grace Jack v. University of Agric. (supra) at pages 100-101, Kastina-Alu, JSC, said:-

“I have closely read Decree No. 107 of 1993 and I find nothing even remotely which has repealed or abrogated the provisions of section 42 of the 1979 Constitution. Rather a careful reading of the Decree reveals that the provisions of section 42 of the 1979 Constitution were preserved by Decree 107 of 1993. I would like to add that section 230(1) of Decree No. 107 of 1993 is a general provision relating to the jurisdiction of the Federal High Court while section 42 of the 1979 Constitution relates to the special jurisdiction for the enforcement of the fundamental rights provided for in Chapter IV of the 1979 Constitution. As I have already stated the High Court of Benue State has concurrent jurisdiction with the Federal High Court in matters of the enforcement of a person’s fundamental rights provided in Chapter IV of the 1979 Constitution.”

Also in Zakari v. I.G., of Police (supra), Oduyemi, JCA, at page 684 of the report had this to say:-

“It is clear that not only in the High Court of the Federal Capital Territory, Abuja, conferred with similar jurisdiction to those of State High Courts, there is no doubt that in matters of the enforcement of a person’s fundamental rights be it against another person, authority or against a State or a Federal Government Agency, it has like the High Court of a State concurrent jurisdiction with the Federal High Court.”

Furthermore, it is the principle of interpretation of statutes that general provisions do not derogate from special provision but special provision derogate from general ones. See Schroder v. Major (1989) 2 NWLR (Pt.101) page 1. In Governor, Kaduna State v. Kagoma (1982) 6 SC 87 at 108. It was held that where there are enactments, one making general provisions and the other specific provisions on a subject matter, the specific provisions are construed to be excluded by implication from the general provisions. See Zakari v. J.G. of Police (supra) at page 680. In Federal Mortgage Bank of Nigeria v. Olloh (2002) (supra) 82 at 91, it was held that:-

“The law is that where there is a special provision in a statute, a later general provision in the same statute capable of covering the same subject matter is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared. To do otherwise is to indirectly use a general provision to alter the intention to provide specially by way of an exception for a subject matter… The Latin Maxim is Generalis clausula non-porrigitur Ad ea quae antea specialiter sunt comprehensa (A general clause does not extend to those things which are before specially provided for.)”

From the foregoing, it is clear that section 46(1) and (2) of the 1999 Constitution is not made subject to section 251 (1)(r). Therefore, pursuant to section 46 of the 1999 Constitution and the provisions of Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, the High Court of Cross River State had jurisdiction to entertain the respondent’s claim before it. I therefore resolve this issue in favour of the respondent and against the appellants.

I now come to the appearance of Mr. Joseph Efa and his endorsement of Court processes on behalf of the respondent at the court below. The respondent apart from his submission on the validity of ground 3 in the second ground of his preliminary objection proffered no alternative submission on the issue in his brief of argument.

However, I have carefully gone through the case of I.B.WA. v. Imano & Anor. (1988) 2 NSCC 247; (1988) 3 NWLR (Pt.85) 633 cited by the appellants in their brief but the decision in the case is not in support of their submission. The relevant provision considered in the case is Rule 31 (a)(1) of the Rules of Professional Conduct. The Rule only prohibits members of the Bar who are in salaried employment from appearing as advocates in any court or and directors of a company who are members of the Bar from appearing as advocates on behalf of such company. It did not say anything about such appearance affecting the jurisdiction or competence of the suit or court. The fundamental rule of the interpretation of statutes is that where the words used are clear and unambiguous, they should be construed as they are given their ordinary plain meaning. It is not permissible to go beyond what the words themselves actually convey and to consider what other things they are capable of and could mean. Where the provision is unambiguous and clear, they contain the intention of the law maker. See I.B. WA. v. Imano Nig. Ltd. & Anor. (supra) at page 247.

In Akalonu v. Omokaro (2003) 8 NWLR (Pt.821) 190 at 209, this Court held that:-

“The representation of parties does not affect the competence or jurisdiction of the court. It is not the appearance of counselor the want of authority that confers on or removes jurisdiction from a court. Appearance of counsel may have something to do with adjudication but it has nothing whatsoever to do with the competence of court to adjudicate and therefore with jurisdiction. Madukolu v. Nkemdilim (1962) 2 SCNLR 341 referred to).”

In INEC & Ors. v. Kalu 1 E.P.R. 386, the issue there was whether the Attorney-General of Abia State can appear for the Governor of Abia State in his private capacity in an election petition. The court held that Attorney General cannot, and he was restrained from further appearing as counsel for the Governor. His previous appearance did not affect the jurisdiction of the court. The appellants should have objected in similar manner at the court below. It was for the appellants to have taken objection to the appearance of the said Mr. Joseph Efa. It is not for the court to challenge the appearance of counsel suo motu. See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517. I observed at page 81 of the record lines 19 – 26 that one Patrick Opara appeared for the appellants on 13/12/01 at the court below. He did not object to the appearance of Mr. Joseph Efa. Ironically it was Mr. Joseph Efa who objected to the appearance of Mr. Patrick Opara for the appellants on the ground that being a private legal practitioner he needed the fiat of the Federal Attorney General in other to represent the appellants.

Now, a party who consents to the adoption of an irregularity or irregular procedure at the trial court will not be permitted to complain about same at the appellate court. In the instant case on appeal, the appellants did not complain at the trial court about the appearance of Mr. Joseph Efa or his endorsement of court processes or the respondent even though at a stage of the proceedings, one Mr. Patrick Opara represented them. In the circumstances, the appellants must be deemed to have consented to the irregular procedure, as they cannot be heard to complain now at the Court of Appeal. See Best Vision Cent. Ltd. v. UACN PDC Plc. (2003) 13 NWLR (Pt.838) 594; Noibi v. Fikolati (1987) 1 NWLR (Pt.52) and Adebayo v. Shonowo (1969) 1 All NLR 176.

I also observed from the record at page 84 lines 20 – 21 Mr. Joseph Efa stopped appearing and the respondent himself appeared for himself and continued to appear until the proceedings before the court below was concluded. From the foregoing, it is my decision that though the appearance of Mr. Joseph Efa for the respondent in parts of the proceedings and his endorsement of some court processes violated the rules, it did not affect or vitiate or rob the court below of its competence or jurisdiction. I, therefore, resolve this issue in favour of the respondent. On the whole I resolve issue one in favour of the respondent and against the appellants.

On issue 2, the main grouse of the appellants is that the respondent sought for reliefs to protect his interest in the property situate and known as 20 Ikot Esu Square, Diamond Hill, Calabar, but the court below granted reliefs in respect of No. 10 Ikot Esu Square, Diamond Hill, Calabar. I am inclined to agree with the respondent that the above is nothing but a mere slip which is curable and which has not caused any miscarriage of justice. It is not every mistake or error in judgment that will result in an appeal being allowed. It is only when the error is substantial in that it had occasioned a miscarriage of justice that an appellate court is bound to interfere. See Ndulue v. Ibezim (2002) 12MJSC; (2002) 12NWLR (Pt.780) 139; Owhonda v. Ekpechi (2003) 12 MJSC 1 at 19; (2003) 17 NWLR (Pt.849) 326 and Odofin v. Oni (2001) 5 NSCQR 67; (2001) 3 NWLR (Pt.701) 488. This Court can correct the slip or error or mistake in the ruling and the order of the court below.

In Odofin v. Oni (supra), the Supreme Court stated that courts are presided over by human beings and being human they are prone to mistakes and slips in the course of execution of their judicial functions. Such slips or errors are not swept under the carpet but are corrected and amended by the appellate courts in the interest of justice. Moreover, in this case on appeal, the parties are quite familiar with the property in dispute and they know the house or property in dispute, therefore, the question of the identity or its certainty will cease to perplex the trial court and also the appellate court. Neither party will be allowed to place a clog in the wheel of justice by mischievously raising the issue of identity in order to becloud what is otherwise a piece of land or property that is well known. See Odofin v. Oni (supra) per Okay Achike, JSC, at page 79.

It is mischievous for the appellants to submit that the trial Judge was wrong to have granted relief of No. 10 Ikot Esu Square, Diamond Hill, Calabar. This is nothing but a mere slip. Instead of No. 20 the trial Judge wrote No. 10 and this can be corrected without much ado. I see no merit in this argument, which is the realm of trivialities and frivolities.

On whether the respondent was entitled to the declaratory injunctive reliefs granted in his favour by the lower court, it is my view that in an application brought under the Fundamental Rights Procedure, it is sufficient if the applicant can show clearly that his fundamental rights have been violated or infringed. In Director, S. S. S. v. Agbakoba (1999) 3 NWLR (Pt.595) 314, the Supreme Court declared that:-

“It is not in doubt that declaratory and other reliefs can be obtained to enforce and protect fundamental rights by filing an action in a High Court.”

The fundamental rights entrenched in the Constitution are very important. An individual whose rights have been infringed or contravened has the right to seek redress in a competent court of law; in this case, the High Court in the State. All that the respondent needed to show in his application for the enforcement of his fundamental rights is that his rights have been physically violated or infringed. The respondent has done so sufficiently and his is eminently entitled to the reliefs claimed. The court below was so eminently qualified to grant the reliefs sought by virtue of section 46(1) & (2) of the 1999 Constitution and Order 1 rule 2(1), (3) and (6), Rule 3(1), Order 4 rule 1(1) and (2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. Moreover section 46 of the 1999 Constitution is a special provision giving a special jurisdiction to the court to hear and determine any application made to it in pursuance of the section and to make such orders, issue such writs and give such direction as it may consider appropriate for the purpose of enquiring or securing the enforcement within that state of any rights to which the person who makes the application may be entitled to under Chapter IV of the 1999 Constitution.

The appellants submitted that the affidavit evidence relied upon by the respondent in the lower court was not sufficient to entitle him to the reliefs granted in his favour and that the court ought not to have granted the declaratory reliefs sought without hearing oral evidence and being satisfied by such evidence. The submission is grossly misconceived having regard to the Fundamental Rights Procedure which is a special procedure different from that of ordinary civil proceedings. It will be recalled that the appellants, despite being duly served with the court processes by the court below, refused or neglected to appear before it. The appellants filed no counter-affidavit to challenge or controvert or contradict the averments in the respondent’s affidavit and statement in support of the application filed. The affidavit evidence before the court below was unchallenged, uncontroverted and contradicted. It is settled law that where the supporting affidavit to an application is not countered it must be deemed to be true and correct. See Azeez v. State (1986) 2 NWLR (Pt.23) page 541 at 545; Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.l35) page 688 and Agu v. NICON Insurance Plc. (2000) 11 NWLR (Pt.677) 187.

Furthermore, an affidavit in support of motion constitutes evidence which the trial court is perfectly entitled to rely upon. Affidavit evidence is quite different from averments in pleadings, which have to be supported by oral evidence. See Magnusson v. Koiki & Ors. (1993) 12 SCNJ 114; (1993) 9 NWLR (Pt.317) 287. The affidavit evidence before the court below being unchallenged, uncontroverted and uncontradicted must be accepted by the court. See Omo v. J.S.C. Delta State (2000) 12 NWLR (Pt.682) 444 and Otuedon & Anor. v. Olughor & Ors. (1997) 7 SCNJ 411; (1997) 9 NWLR (Pt.521) 355. Having disposed of all the issues raised, I resolve issue 2 in favour of the respondent and against the appellants.

The appeal is unmeritorious and I hereby dismiss it.

Accordingly, the ruling of Edem, Lin suit No. HC/MSC/183/2001 delivered on 10/9/01 is hereby affirmed. Pursuant to the provisions of section 16 of the Court of Appeal Act, the order made in respect of “No. 10 Ikot Esu Square, Diamond Hill, Calabar, is hereby amended to read, “No. 20 Ikot Esu Square, Diamond Hill, Calabar.

The appeal is hereby dismissed with N10,000.00 costs in favour of the respondent.

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Other Citations: (2005)LCN/1786(CA)

Sir Denis Ofordeme V. Engr. Chukwuma Onyegbuna (2005)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

In the suit No. E/702/2003, the plaintiff, now judgment creditor/respondent in this application instituted an action on the undefended list claiming the sum of $10,000 dollars or N 1, 350,000 from the defendant – now judgment debtor/applicant, which the latter failed to pay to the former’s foreign suppliers in China-Maxwell China Limited and 25% interest per annum until the sum is recovered. The trial court gave judgment in favour of the plaintiff/respondent on 16/2/04. The applicant before this court filed a motion before the trial court on 22/4/04 praying the court for an order staying execution of the judgment of the court pending the determination of the appeal filed by the applicant. In a considered ruling delivered on the 16/6/04 the lower court refused to grant the application for stay of execution of the judgment.

By virtue of Order 3 rule 3(3) of the Court of Appeal Rules, 2002 the applicant, filed a motion before this court on the 23/6/04 as defendant/judgment debtor prayed this court to stay execution of the judgment delivered on 16/2/04 pending the determination of the appeal already filed by him. He filed an application to amend the original grounds of appeal filed by him on 16/3/05 and this was granted by this court on the 9/5/05. The applicant filed a 22-paragraph affidavit in support of his application for stay of execution to which he annexed three documents as exhs. AUC-AUC2. The respondent reacted to this application by filing a 12-paragraph affidavit with two documents attached as exhibits A and B. Both parties filed written addresses – the applicant on 13/5/05 and the respondent on 19/5/05.

The crux of the argument of the applicant in respect of the application for stay of execution of the judgment delivered by the trial court on 16/2/04, is that he has appealed against the said judgment, while his grounds of appeal are substantial, cogent and arguable as they border on the illegality and unenforceability of the action. This touches upon the jurisdiction of the court to hear and determine the matter. The cause of action was ab initio founded upon an illegality, which contravenes sections 1, 2 and 3 of Part 1 of the Money Laundering Act M18, Laws of the Federation of Nigeria, Vol. 9, No. 3 of 1995. The respondent failed to comply with the requirements of section 3(1)(a), (b) and (c) of the Money Laundering Act, 1995 which regulates over the counter-exchange transactions. The learned trial Judge adopted the wrong procedure in the application of the Law for undefended list suit. On the claim of N800, 000 set up by the defendant, the matter should have been transferred to the general cause list.

What is special circumstance in an application for stay is not exhaustive. Facts and conditions do vary from case to case. In the instant case, the res is the monetary sum of N800, 000 set off against the respondent’s claim for $10.000. This court is urged to grant this application as its refusal would destroy the subject-matter of the appeal, foist upon the Court of Appeal a situation of complete helplessness and render nugatory any order made by this court after hearing and determination of this appeal. If the application for stay is granted – status quo would be preserved and this would provide him the means to prosecute the appeal as the applicant has every chance of success in the appeal. The applicant is of the opinion that the respondent would not suffer any hardship by granting the application. The respondent failed to give undertaking to pay damage in the event of the success of the appeal.

The respondent in his reply gave a background of the transaction between them as backed up by exh. A, which is the agreement between the parties. The applicant defaulted in the transaction by remitting only $80,000 dollars out of the $90,000 paid for and refused to return the said $10,000 dollars or the N1, 350,000 equivalents to the respondent with a 25% per annum interest rate. There is nothing illegal on the face of the agreement, exh. A. The relevant law on which the applicant relies to prove illegality of the transaction specified on exh. A shall be determined on appeal. The Foreign Exchange Monitoring and Miscellaneous Provisions Act No. 17 of 1995 which currently governs foreign exchange transactions in Nigeria makes the type of agreement and transactions entered into by the parties legal and proper. The appeal supposed to be filed by the applicant is only at the stage of filing notice and grounds of appeal. Records are yet to be settled and compiled for onward transmission to the Court of Appeal. Any applicant who wishes to deprive a successful litigant from reaping the fruits of the judgment must show special or exceptional circumstance which the court can take into account. The applicant has no facts disclosed in support of his application which can qualify as special circumstance. The subject matter of the appeal here is the return of the money paid to the applicant based on an agreement and even a valid and subsisting judgment of court. The status quo being asked by the applicant to be preserved is holding over the respondent’s money unlawfully.

The respondent substantiated the fact that he is a man of means by disclosing his business strength and source of income. He guaranteed the repayment of the judgment debt even without demand of the sum should the applicant succeed on appeal. The respondent cited the case of Okafor v. Nnaife (2002) 12 NSCQR pg. 511 or (1987) 9-10 SCNJ 63; (1987) 4 NWLR (Pt. 64) 129, while this court is urged to refuse the application as the applicant has not established any special reason to disturb the order of the trial court made on 16/6/04.

This court has painstakingly considered the arguments and submission of the applicant and the respondent in this application.

By virtue of section 18 of the Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1990, an appeal under the Act shall not operate as a stay of execution. The Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with the rules of court.

Kosofe L.G. v. Demuren (2003) 9 NWLR (Pt.826) 435.

Certain major considerations when an application for stay is in issue are:

1. That a judgment of the trial court remains valid and subsisting until the contrary is proved.
2. That the respondent is entitled to reap the fruit of his judgment for this is the whole essence of litigation.
3. The court in considering an application for stay has a duty to ensure that:-

(1) It does not frustrate its judgment or that of the lower court until a further appeal.

(2) That a successful party reaps the fruit of his successful litigation, as that is the whole essence

of litigation.

(3) The discretion to be exercised must take into consideration dispassionately the competing rights of the parties. It has to consider both sides of equity and justice.

(4) An applicant seeking to deprive a successful litigant of the fruit of his labour must show substantial reasons why the court must grant him such indulgence.

Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621, Vaswani Trading Co. v. Savalakh (1972) 12 SC 77; Deduwa v. Okorodudu (1974) 6 SC 21, Lijadu v. Lijadu (1991) 1 NWLR (Pt.169) 627.

The grant of stay of execution is an equitable remedy which is not granted as a matter of course, the applicant must show substantial or exceptional reasons, which the court has a duty to painstakingly determine. What will amount to or constitute special or exceptional circumstance for the purpose of granting a stay of execution vary from case to case.

By and large, such circumstance must involve a consideration of some collateral circumstances and perhaps in some cases inherent matters which may unless the order is granted,

(a) Destroy the subject-matter of the proceeding.

(b) Foist upon the court especially the Court of Appeal a situation of complete helplessness.

(c) Render nugatory any order or orders of the Court of Appeal.

(d) Generally provide a situation in which whatever happens to the case and in particular even if the appellant succeeds in the court of appeal there could be no return to the status quo.

Ajayi v. Oladele (1999) 7 NWLR (Pt. 612) 567; UBN Ltd. v. Odusote Bookstore Ltd. (1994) 3 NWLR (Pt. 331) 129.

The burden is however on the applicant to prove that special or exceptional circumstances exist for the court to grant the application and suspend the execution of judgment. Kigo v. Holman Bros. (Nig.) Ltd. (1980) 5-7 SC 60; Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129.

In the circumstance of the application, the court before coming to a decision on whether or not to grant a stay of execution pending appeal considered:

1. Whether the applicant established special or exceptional circumstances in which case, the court would grant a stay.

Whether or not granting a stay pending appeal would render the appeal nugatory such that the res would be destroyed before the appeal is heard.

Whether making the applicant to satisfy the judgment would make his financial position such that he could not prosecute the appeal. Although poverty per se is said not to be a ground for granting a stay, the pecuniary position of the applicant vis-a-vis the prosecution of the appeal is taken into account.

Whether it will be difficult to secure the refund of the judgment debt or the damages and costs from the respondent, if the appeal succeeds. For this purpose, the financial ability of the respondent is taken into account.

Kigo v. Holman Brothers (1980) 5-7 SC 60, Balogun v. Balogun (1969) 1 All NLR 349.

The special or exceptional circumstances relied upon by the applicant are as follows:-

That the ground of appeal is cogent and substantial, which is the issue of jurisdiction of the trial court. The contention of the applicant is that the transaction between the parties based on exh. A is illegal and unenforceable. The transaction contravenes sections 1, 2 and 3 of the Money Laundering Act, Decree No.3 of 1995, Vol. 9, Laws of the Federation.

The refusal to grant a stay would destroy the subject-matter of the appeal, which to him is the sum of N800, 000 set up as counterclaim against the sum of 1.35 million Naira – which will have the effect of foisting upon the Court of Appeal a situation of complete helplessness and render nugatory any orders of the court.

Granting of the stay would preserve the status quo and provide the applicant the means to prosecute the appeal as the applicant has every chance of succeeding in his appeal.

I shall now consider these special circumstances which form the pivot of the applicant’s request for stay of the judgment of the trial court. The issue of jurisdiction has always been considered substantial by the courts of record and they readily exercise their discretion in favour of granting a stay based on same where genuinely raised by the applicant. The applicant in this case raised the issue of the illegality of the transaction between him and the respondent which consequently called into question the issue of the jurisdiction of the trial court. The applicant in the application at the lower court relied upon section 1(1)(a) of the Exchange Control (Anti Sabotage) Act, Cap. 114, Laws of the Federation. It was his contention that the transaction which was the basis of the respondent’s claim was in breach of same. It is noteworthy that the transaction between the parties took place in 2003. Decree No.8 of 1995, the Exchange Control (Repeal) Decree and Decree No. 17 of 1995 Foreign Exchange (Monitoring and Miscellaneous Provisions) Decree had repealed the enabling statute cited by the applicant. Section 38(1) of Decree No. 17 of 1995 provides that the following enactments are hereby repealed as follows:-

(a) Exchange Control (Anti Sabotage) Decree, 1984.

(b) The Foreign Currency (Domiciliary Account) Decree, 1985.

The Second Tier Foreign Exchange Market Decree, 1986.

In the year 2003 when the transaction between the parties took place, the Exchange Control Anti-Sabotage Decree, 1984 was no longer operative. In the application before this court; the applicant cited Money Laundering Act Decree No.3 of 1995. The Foreign Exchange (Monitoring and Miscellaneous) Decree 19 of 1995 now regulates all foreign exchange transactions. This particular transaction between the parties was routed through a bank. The defendant cannot therefore be held as a victim of illegality in a transaction undertaken by a properly constituted and licenced bank.

It cannot be concluded by this court that the issue raised in the grounds of appeal is substantial and same cannot be relied upon as exceptional or special circumstance to grant the application. Estoppel by conduct or estoppel by matter in pais can easily be raised in favour of the respondent, having substantially performed the transaction with the payment of $80,000 dollars out of the $90,000 with a balance of $10,000 due from him, he cannot turn round to plead illegality of the entire transaction. Nsirim v. Nsirim (2002) 3 NWLR (Pt.755) 697.

The applicant raised the issue of the preservation of the res.

The res in this case are the sum of 1.35 million Naira as money paid for a consideration that failed. The applicant failed to pay back the money, and even after judgment of court, he is applying for stay of execution of that judgment. The res, the judgment debt is not by any standard perishable. The respondent gave the guarantee and even deposed to his source of income to substantiate that he is not a man of straw, and that he would readily make the judgment debt available if the applicant should win on appeal. The applicant did not dispute this.

The applicant also pleaded that if he pays the judgment debt, he would not have the means to prosecute his appeal. Although poverty is not a reason to grant a stay of execution, a situation where an applicant will be unable to exercise his constitutional right of appeal due to impecuniosity will be a special circumstance that may persuade the court to grant such applicant an unconditional stay.

The court in the circumstance will have to consider:-

(a) The ability of the respondent to refund the judgment.

(b) The ability of the applicant to pursue his appeal if ordered to pay the judgment debt pending appeal.

This is a situation in which the court has to consider the competing rights of the parties, the successful party, the respondent and the unsuccessful party, the applicant. Deduwa v. Okorodudu (1974) 1 All NLR 272; Uniport v. Kraus Thompson Organisation (1999) 11 NWLR (Pt. 625) 91.

The applicant unlike the respondent disclosed nothing to substantiate his impecuniosity. All he requested from this court is to be allowed to use the fruits of the respondent’s judgment to prosecute and appeal against him. Any order to this effect will amount to the court destroying with another hand what it has built with one hand.

The court should not encourage a situation where an order of stay should be seen as a substitute to a judgment the trial court denied the party.

In summary, the applicant has failed to establish the exceptional or special circumstance that would entitle him to this court exercising its discretion in favour of granting the stay of execution of the judgment delivered on 16/2/04. The application is hereby refused.

No order as to costs.

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Other Citations: (2005)LCN/1784(CA)

Ikemefuna C. Amadiume & Anor. V. Mrs Agnes Solomon Ibok & Ors. (2005)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A

This is an interlocutory appeal against the Ruling of Edem, J., in Suit No. HC/496/2002 delivered on 13/8/2003, wherein the court dismissed the application filed by the appellants and held that from the evidence before it, the appellants were proper parties in the suit and that the court has jurisdiction to entertain the suit before it.

The appellants are the airport manager and operations manager respectively of the Calabar Airport, Calabar, and employees of the Federal Airport Authority of Nigerian (hereinafter called FAAN). The respondents were the former principal, vice principal (academic) and (admin) respectively of FAAN Secondary School, Calabar, located within the said airport.

Following some management problem and or financial irregularity, the FAAN set up an audit committee to look into the affairs of FAAN Secondary and Primary Schools. Sequel to that, the 1st appellant issued a letter dated 15/10/02 to the respondents, placing them on compulsory leave. Unhappy with the state of affairs, the respondents instituted proceedings against the appellants before the High Court of Cross River State on 6/11/02, whereby they claimed in their statement of claim at pages 4 – 7 of the record as follows:

“Wherefore the plaintiffs claim against the defendants jointly and severally as follows:

(a) A declaration that the plaintiffs are entitled to remain in their offices as the Principal, Vice Principal (admin) and Vice Principal (Academic) of the Federal Airport Authority or Nigeria Secondary School without any harassment or molestation by the defendants or their agents.

(b) A declaration that the conduct of the defendants in disgracefully ordering the plaintiffs out of their offices aforesaid is wrongful and a wanton breach of the contract of service between the plaintiffs and the School Management Board of that School.

(c) An Order of injunction restraining the defendants by themselves, their servants or agents or howsoever from compulsory removing the plaintiffs from their respective offices as Principal, Vice Principal (Admin), Vice Principal (Academics) or in any manner preventing or continuing to prevent the plaintiffs from discharging their functions accordingly.

(d) The sum of N900,000,000.00 (Nine Million Naira) special and general damages against the defendants jointly and severally for harassment intimidation and unjustified molestation of the plaintiffs.

(e) An order of cancellation of any compulsory leave or reversal of any other action purportedly taken against the plaintiffs by the defendants.”

On being served with the claim of the respondents and before commencement of hearing of the suit, the appellants brought a motion on notice dated 20/3/2003 and filed the same day praying for an order striking out the suit on the ground of incompetence. See pages 47 – 48 of the record.

The gists of the application are two fold:

“(1) That the appellants are not the owners of the school and have no powers to own the school. They are servants to the Federal Airport Authority of Nigeria.

(2) That the compulsory leave of the respondents was an administrative act and therefore not actionable.”

The respondents in reacting to the appellants’ application filed a counter-affidavit of 19 paragraphs deposed to by the 1st respondent herself, challenging the supporting affidavit. After hearing the submissions of the counsel in the matter the court below ruled at page 86 that the defendants are not agents to any principal be it disclosed or undisclosed, named or unnamed and that the FAAN is not the principal to the appellants in the suit and in the transaction giving rise to the suit. The court below held further that the appellants not having filed a further affidavit to challenge the respondents’ counter-affidavit the averments in the counter-affidavit are unchallenged. Therefore, the suit filed by the respondents is proper and the court below has jurisdiction.

Dissatisfied with the ruling of the court below the appellants appealed to this court on 3 grounds numbered (a), (b) and (c) and filed on 18/8/03. The appellants in their brief dated 4/11/03 and filed on 11/11/03 distilled 2 issues for determination. The issues are:

“(1) whether it was right to sue the appellants in their private capacity, when the appellants performed their duties as the manager and operation manager of the Federal Airport Authority of Nigeria a disclosed principal?

(2) Was the court right to assume jurisdiction considering the facts of the compulsory leave and the termination of the appointment of the respondents?

The respondents in their brief of argument dated 27/4/04 filed on 19/5/04 also raised two issues for determination. The issues are:

“(1) Whether the learned trial Judge was right, when he held that from the uncontradicted affidavit evidence and unchallenged averments in the statement of claim filled by the respondents, the appellants were proper defendants in the suit and that the suit was competent?

(2) Whether the letter of compulsory leave issued to the respondents by the appellants – a third party to the contract of service between the respondents and the School Management Board was sufficient to divest the trial Court of its jurisdiction to entertain the suit questioning the propriety of the letter of compulsory leave?”

The parties filed and exchanged the respective brief of arguments and at the hearing of the appeal Counsel to the parties adopted and relied on their respective briefs of argument.

On Issue 1, the appellants’ Counsel, Mr. Onyebueke, submitted that from the averments in paragraphs 6 and 7 of the respondents’ statement of claim at pages 4 and 6 of the record and the provisions Section 1, 7 and 15 of the Nigerian Airport Authority Act, the appellants are staff and agents of the FAAN therefore, whatever action they take in the course of their duty is for and on behalf of FAAN. He concluded that the respondents were wrong to have sued the appellants in their private capacity when their principal is known and the letters of compulsory leave issued to the respondents, which gave rise to the suit, must be deemed to be authored by FAAN. He referred to the case of Faith Enterprises Ltd. vs. Base Nig. Ltd. (2001) 8 NWLR (Pt.714) page 242 at 244 and Edet vs. Chief of Air Staff (1994) 2 NWLR (Pt. 324) 41 at 50.

Mr. Onyebueke submitted further that before an action can succeed the parties to it must be shown to be proper parties to whom rights and obligation arising from the cause of action attach and the issue of proper parties would affect the jurisdiction of the court. He referred to Bent Vision Cement Ltd. vs. U.A.C.N.P.D.C. Plc. (2003) 13 NWLR (Pt. 838) 594. Relying on the case of Essang vs. Aureol Plast Plc. (2003) 17 NWLR (Pt. 795) 155 at 166, Counsel submitted that an agent acting on behalf of a known and disclosed principal incurs no liability as the act of the agent is the act of the principal.

On Issue 2, Mr. Onyebueke pointed out that the cause of action of the respondents was the letter of compulsory leave served on them. They were merely suspended pending the outcome of the audit committee setup to investigate the activities of the respondents. He then submitted that a master can suspend his servant when a necessary and this cannot account to breach of the servant’s rights. He referred to Ayewa vs. University of Jos (2000) 6 NWLR (Pt. 659) 142. He concluded that the appointments of the respondents having been terminated the court lacked the jurisdiction to hear the matter of compulsory leave of the respondents.

Learned Counsel for the respondents, Mr. Alex Umoh in the respondents’ brief, submitted that the appellants are not agents of FAAN. He referred to the finding of the trial Judge at page 87 lines 9 – 14 of the record and urged the court to uphold it in view of the affidavit evidence of both parties in the proceedings. He relied on Bello vs. Ringim (1991 (7 NWLR (Pt. 206) 668 at 677 and Iwenagbor vs. Bazuaye (1999) 70 LRCN 2256 at 2260 and submitted that an appellate Court would not normally upset the finding of facts made by the trial court.

On the issue of agency Mr. Umoh submitted that a servant who seeks the benefit of an agency relationship with his principal must establish that in committing the act complained of he was never on a frolic of his own. He referred to Nirchandant vs. Pineirro (2001) FWLR (Pt. 48) 1307 at 1323, and submitted that the fact that the appellant’s are servants of FAAN does not mean that all their acts were covered by the principle of agency inherent in the master – servant relationship with FAAN.

On the termination of the appointment of the respondents, Mr. Umoh submitted that they were written after the institution of the case before the court below on 6/11/02 and therefore they are inadmissible. He relied on Ogbakon vs. The Registered Trustees & Christ Chosen Church of God and Anor. (2001) FWLR (Pt. 80) 1496 at 1502. He also referred to the averments in paragraphs 4, 5, 6, 7 and 14 of the respondents’ counter-affidavit whereby the respondents denied knowledge of Exhibits ‘A’, ‘B’ and ‘C’ at pages 53 and 54 of the record and submitted that as the appellants failed to file a further and better affidavit the averments are deemed admitted. He relied on Adekanye vs. Comptroller of Prisons (2000) FWLR (Pt. 8) 1258 at 1267.

On Issue 2, the respondents contended that a right to enforce a contract is a right in personam and a stranger cannot enforce a contract. They relied on A-G Federation vs. A.I.C. Ltd (2000) FWLR (Pt. 26) 1744 at 1762 – 1763. Mr. Umoh pointed out that in paragraphs 19, 20, 21, 22, 23, 24 and 27 of the statement of claim and paragraphs 8 and 9 of their counter-affidavit, the respondents had averred that FAAN is not the owner of the school in question and it is not their employer and that they are responsible to the School Management Board of the school. He argued that the above averments were not controverted by the appellants therefore they must be admitted and acted upon by the court as was the case in Ogoejofo vs. Ogoejofo (2001) FWLR (Pt. 63) 141 at 144. He then concluded that the appellants and FAAN are not a party to contract of service between the respondents and the School Management Board of the school. So, the question of a master suspending a servant does not arise in the instant case on appeal and the case of Ayewa vs. University of Jos (supra) does not apply to this case.

I have examined, considered and reflected on the issues for determination formulated by the parties in this instant appeal and I am satisfied that though differently worded, they are essentially the same in their meaning, nature and effect. I shall therefore adopt the issues for determination formulated by the appellants in their brief of argument in this appeal.

On Issue 1, it is important to note that for a court to be competent and have jurisdiction over a matter, proper parties must be identified. Before an action can succeed, the parties to it must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach.

The question of proper parties is a very important issue which would affect the jurisdiction of the court as it goes to the foundation of the suit and it can be raised in limine. The appellants were correct when they applied to the court below for the striking out of the suit at the court below and it was proper and well taken. See Bent Vision Cent. Ltd. vs UACNP (supra), Ikene vs. Anakwe (2000) 8 NWLR (Pt. 669) 484 at 492 and Peenok Ltd. vs. Hotel Presidential (1983) 4 NCLR 122. Ehidomhem vs. Musa (2000) 8 NWLR (Pt. 669) 540.

The issue of jurisdiction being fundamental can be raised at any stage of a proceeding even in the Supreme Court for the first time. See Salati vs. Shehu (1986) 7 NWLR (Pt. 15) 198.

Where the proper parties are not before the court then the court lacks jurisdiction to hear the suit. Where a court purports to exercise jurisdiction which it does not have the proceedings before it and its judgment will amount to a nullity no matter how well decided. See Madukolu vs. Nkemdilim (1962) 2 SCNLR 341: Sode VS. AG Federal (1986) 2 NWLR (Pt. 24) page 568. When the court has no jurisdiction it is futile to go into the merits of the case. See Maidawa v. Husaini (2000) 6 NWLR (Pt.662) 698.

To begin with, the respondent in their averments in paragraphs 6, 7 and 9 of the statement of claim admitted unequivocally that the appellants are the Airport Manager and Operations Manager respectively of FAAN.

Because of the importance and significance of the aforesaid paragraphs it is necessary that I reproduce them below.

“6. The 1st defendant is the present Airport Manager of the Calabar International Airport Calabar and it is within the premises of the said International Airport that the school is located.

7. The 2nd defendant is an employee of the Federal Airport Authority of Nigeria – a Federal Government parastatals. The 2nd dependant is currently the Operations Manager of the Calabar International Airport.

9 Suddenly, when the 1st defendant assumed office as the new Airport Manager of the Calabar International Airport, he immediately complained of the ethnic make up of the staff strengths of the school as being dominantly made up of people of Cross River and Akwa Ibom States origin. He vowed to change that.”

Facts which have been admitted in a pleading need no further proof by virtue of Section 75 of the Evidence Act. See Solana vs. Olusanya (1975) 6 SC 55; Maduabachukwu vs. Umunakwa (1990) 2 NWLR (Pt. 134) 598 and Daniel vs. Iroreri (1985) 1 NWLR (Pt. 3) 541. Ibanga vs. Usanga (1982) 5 SC 103 and Akpapuna vs. Nzeka (1983) 2 SCNL 121. It is therefore, clear and undeniable that the appellants are staff nd servants of FAAN at Calabar.

The respondents claim at the court below originated from the letters of compulsory leave which were authored by the 1st appellant, who signed as the Airport Manager. The first paragraph of the letter of compulsory leave at pages 16, 17 and 18 of the record is very instructive and it read as follows:

“You are already aware that the management of FAAN, Calabar Airport has set up an Audit Committee to look into the affairs of FAAN Secondary and Primary Schools….”

The above clearly reveal that the, said letters were written in the 1st appellant official capacity as the Airport Manager.

A court is at liberty to use any relevant process in the court’s file in forming its opinion on the contention of both parties. See Okafor vs. Okafor (2000) FWLR (Pt. 1) 17 and 19. In the record of proceedings produce before this court, I observed that respondents when they filed their suit also filed a motion – ex parte and a motion on notice, both dated 6/11/02. See pages 8 – 45 of the record. Sequel to the motions the court below made an order dated 11/11/2002. The enrolled order is at page 46 of the record. I observed that the 1st respondent, Mrs. Agnes Solomon Ibok deposed to the affidavit in the motions and she attached Exhibits A-J to the supporting affidavits. Exhibit A is an article from the School Management Board and it reads as follows:

ARTICLE 2: SCHOOL MANAGEMENT BOARD

i. In compliance with the relevant labour law and for the smooth and proper running/management of the Federal Airport Authority of Nigeria Secondary School, Calabar, it is I hereby established THE SCHOOL MANAGEMENT BOARD in the school (hereinafter referred to as “THE SCHOOL MANAGEMENT BOARD”).

ii. The board shall consists of:

a. The Airport Manager Chairman

b. The School Principal Member

c. The Chairman of the School PTD Member

d. A Representative of Junior Staff Union Member

e. A Representative of the Senior Staff Union Member

f. The Head Teacher of the Primary School

g. And two other members as shall be appointed by the Board from time to time

The secretary of the Board may be appointed by the Board.”

It is glaringly and abundantly clear that the Airport Manager is the Chairman of the School Management Board of the FAAN Secondary School, Calabar. The 1st respondent in her supporting affidavit attached Exhibits and J1, which are letters of confirmation of her appointment and that of Mr. Effiom Effiong Effiom. The letters were duly written on FAAN letter headed paper and they were duly signed as follows:

“Ekanem (Secretary FAAN School Management Board) for Airport Manager.”

Similarly, the letter of confirmation of appointment of the 2nd respondent, Mr. Sunday Etuk, which is Exhibit 1 at page 24 of the record was signed by the Chairman of the School Management Board, who is the Airport Manager. See further pages 41, 43 and 145 of the record, where the same exhibits were attached and referred to. All the above documents were duly written on FAAN letter headed paper and signed for the Airport Manager and they speak loudly for themselves. It is therefore clear to me that the appellants are servants and agents of FAAN and more importantly, the 1st appellant has an important role to play for and on behalf of FAAN in the management of FAAN Secondary School.

Bearing this in mind, the finding of the trial Judge at page 85 lines 20 – 23 of the record is unfounded and unsupportable.

The learned trial Judge said:

“All the letters are signed by I. C. Amadiume. Below his name is written; AIRPORT MANAGER. Note, he is not signing on behalf of the Federal Airport Authority of Nigeria.”

That is completely ridiculous, erroneous and uncalled for. The fact that the 1st appellant is the Airport Manager and Chairman of the School Management Board of FAAN Secondary School is certainly enough to show that he is a servant and agent of FAAN and that he was acting in his official capacity. Moreover, Section 7 of the Nigeria Airport Authority Act Cap 292 Laws of the Federation of Nigeria provides:

“The Authority may appoint such number of officers as it thinks necessary to be designated as Airport Managers, who shall be responsible for assisting the General Manager in the Management and control of such Airport or Airports as the Authority may from time to time determine.”

Furthermore in Anyaorah vs. Anyaorah (2001) 7 NWLR (Pt 711) 158 at 180 the court when considering who is an agent stated that:

”The term “agent” includes any person who acts for another in the capacity of deputy, steward, rent collector or any other agent or trustee.”

See also Godwin vs. The Christ Apostolic Church (1998) 14 NWLR (Pt. 584) 162.

From the above provision, it is clear that the 1st appellant being the Airport Manager is responsible for assisting the General Manager in the Management and control of the Airport. It is therefore unnecessary for the 1st appellant, having signed the letters in question as Airport Manager, to state that he is acting on behalf of FAAN. Whatever action the 1st appellant has taken in the course of his duty as Airport Manager, he did so for and on behalf of FAAN. Therefore, he is undoubtedly the agent to FAAN. There is no evidence that FAAN has disowned the 1st appellant as its servant or agent. As it is clear that the appellants are servants and agents of FAAN and FAAN is a disclosed principal, they incur no liability at all. In Faith Enterprises Ltd. vs. BASF (Nig.) Ltd. (supra) it was held at page 244 that:

“The state of mind and acts of the Managing Director of a company are all regarded as those of the company – A legal fiction that only exist in the eyes of the law. In the instant case, Exhibit B which was authored by the Managing Director of the appellant is the act of the appellant.”

See further Boltan (Nig.) Co. Ltd. vs. Graham & Sons Ltd. (1956) All E. R. 624. Also in Essang vs. Aureol Plast Ltd. (supra) at page 166 it was held that:

“An agent acting on behalf of a known and disclosed principal incurs no liability. This is because the act of the agent is the act of the principal. It was the principal who did or omitted to do what the agent did or omitted to do. The common law rule is expressed in the latin maxim thus:- “Qui Facit peralum facit per se ip sam Facere vindepur.” Which means, he who does an act through another is deemed in law to do it himself.”

It flows from the above cases that the state of mind and acts of the appellants as Airport Manager and Operations Manager respectively are those of FAAN their employer. The letters of compulsory leave duly authored by the 1st appellant as the Airport Manager was in fact authored by FAAN. I cannot see the difficulty of the trial Judge in arriving at this simple and logical conclusion which accords with common sense. Where the principal of an agent is known or disclosed, the proper party to sue or be sued for anything done or omitted to be done by the agent is the principal. The action against the appellants in their private capacity where their principal FAAN is known and disclosed is incompetent. The court below ought to have struck out the suit. See Niger Progress Ltd. vs. NEL Corporation (1989) 3 NWLR (Pt. 107) 68 and Leventis Tech. Ltd vs. Petrojessica Ent. Ltd. (1992) 2 NWLR (Pt. 234) 459.

The respondent relying on the case of Mirchandant vs. Pinheiro (supra) submitted that a servant, who I seeks the benefit of an agency relationship with his principal must establish that he is not on frolic of his own. They were also of the view that the appellants failed to prove on oath that the act of forcing the respondents on compulsory leave was done in the course of the appellants official duties as agents or servants of FAAN. My answer to that submission is simple. The fact that the appellants are staff and servant of FAAN makes them agents of FAAN. The fact that the letters of compulsory leave were duly authored and signed by the 1st appellant as the Airport Manager on FAAN letter headed paper is sufficient evidence that he was acting in his official capacity. The fact that the 1st appellant is the Chairman of the School Management Board is sufficient evidence that he was acting in his official capacity. The fact that Section 7 of the Nigeria Airport Authority Act Cap 292 empowered the 1st appellant to assist the General Manager of FAAN in the Management and control of the Airport is sufficient evidence that he was acting in his official capacity. Whether the acts of the appellants were ordered by FAAN or not or that as agents of FAAN they did what FAAN asked them to do or whether their acts were in accordance with the directives of FAAN is another matter entirely. It does not lie in the mouth of the respondents to question the act of the appellants in the circumstances. In my view it is for FAAN to say whether or not the appellants acted in accordance with its directives. Certainly it is not in the province of the respondents to say so when they are not FAAN or the employers of the appellants. The learned trial Judge fell into grave error when he concluded that the appellants were not the agents of FAAN, without hearing any evidence from FAAN.

I observed that the respondents at Page 3 of their brief stated that the court below granted an amendment to the writ of summons and the statement of claim filed to reflect the status of the appellants to wit:

“(1) Mr. Ikemefuna Amadiume (Airport Manager, Calabar International Airport, Calabar)

(2) Mr. Anthony M. Alumono (Operation Manager, Calabar International Airport, Calabar).”

I have carefully examined the court record, but I cannot find any such amendment. I have also not seen the amended writ or amended statement of claim. However, the purported amendment, if at all there was, cannot alter the legal position of the appellants and it is of no assistance to the case of the respondents. The issue here is that the appellants are agents of FAAN and therefore they incur no liability. There they are not the proper defendants to be sued.

Secondly, there is a presumption that the record of proceedings of the court is correct until the contrary is proved. Therefore, the respondents who in effect have challenged the correctness of the record ought to have sworn to an affidavit setting out the facts or parts of the proceedings omitted or wrongly stated in the record. See Nwankwo vs. Abazie (2003) 12 NWLR (Pt.834) 281 at 421: Ehikioya vs. COP (1992) 4 NWLR (Pt. 233) 57. Moreover, the respondents were served with record of proceedings of the court below before they filed their brief. Apparently, they took no step to challenge the record then and neither did they ask for leave to file additional documents to form part of the record. It was therefore wrong for the respondents to raised that issue in their brief. I will therefore discountenance the issue.

From the foregoing, I conclude that the appellants are agents of FAAN and it is crystal clear that they performed their duties in their official capacity on behalf of FAAN who is their disclosed principal. I therefore answer the question in issue 1 in the negative. That is to say, it was wrong for the respondents to sue the appellants in their private capacity when their principal is known and disclosed. I therefore resolve Issue 1 in favour of the appellants and against the respondents.

On Issue 2, the question is whether the court was right to assume jurisdiction considering the facts that the respondents were sent on compulsory leave and later their appointment was terminated. The main thrust of the appellants argument is that the court lacked jurisdiction to hear a case of the compulsory leave of the respondents as a cause of action when the appointment of the respondents have been terminated. In fairness to the respondents, the present case now on appeal was filed on 6/11/02, whereas the appointments of the respondents were terminated on the 22/11/02 during the pendency of their suit. See pages 49 – 55 of the record. This in effect means that the letters of termination of appointment are caught squarely by the provisions of Section 91 (3) of the Evidence Act which provides:

“Nothing in this Section shall render admission as evidence of statement made by a person interested at a time when proceedings are pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

From the above and following the case Ogbahon vs. The Registered Trustees of Christ Chosen Church of God & Anor (supra), I am in agreement with the submission of the respondents that the letters of termination having been issued on 22/11/02 during the pendency of the suit must be discountenanced. The letter of termination has completely changed the complexion of the suit before the court below. If that is allowed the respondents would be forced to commence their suit de novo as they cannot continue with a cause of action based on compulsory leave when the appellants have gone one step ahead of them to terminate their appointments. This is wrong. The appellant ought to have waited for the outcome of the suit filed by the respondents before terminating their appointment. Obviously, it makes no sense for the respondent to continue with the claim for cancellation of the compulsory leave imposed on them when as a matter of fact their appointments have been terminated. However, the above findings have not brought any dramatic or radical change to the fortunes of this appeal. The claim of the respondents in the statement of claim at pages 4 – 7 of the record is predicated on their been sent on compulsory leave and they are bound by their pleadings. The respondents relied on AG Federation vs. A/C Ltd. (2000) FWLR (Pt. 26) 1744 at 1762 where the Supreme Court held that:

“A right to enquire a contract is a right in personam that a stranger cannot enquire into a contract.”

In the first place the respondents did not plead any contract of service. All that they pleaded in paragraph 20 of their statement of claim is that their relationship with the School Management Board of FAAN school is governed principally by the School Manual and condition of service of the school. In view of my findings under Issue 1, the submission of the respondents is misconceived, grossly speculative and irrelevant.

As was rightly pointed out by the respondents, it is the claim of a plaintiff that determines the jurisdiction of the court which entertains the claim. In Abacha vs. Fawehinmi (2000) FWLR (Pt. 4) 533 at 557 it was held that:

“The jurisdiction of a court to adjudicate in a matter is determined by the facts placed before it and more importantly, by the phraseology of the plaintiff’s claim.”

Also in AG Anambra State vs. AG Federation (1993) 6 NWLR (Pt. 302) 692 at 742 the Supreme Court held that:

“It is a fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of a court.”

In paragraphs 19 – 24 and 27 of the statement of claim at pages 4 – 6 of the record averred that they are responsible to the School Management Board of the School. The 1st appellant is the Airport Manager and by virtue of that he is also the Chairman of the School Management Board therefore, there is a master-servant relationship in existence between the appellants and it is not in dispute that the appellants sent the respondents on compulsory leave pending the outcome of the report of the audit committee set up by FAAN. For the purposes of clarity and ease of reference, I find it necessary to reproduce one of the letters of compulsory leave. I now reproduce the letter sent to the 1st respondent marked as Exhibit B at pg. 16 of the Record. It reads;

“FAAN Ref. No. FAAN/33/401.112/VOL.2

Federal Airports Authority of Nigeria

Calabar Airport, P.M.B. 1348, Calabar October 15, 2002

087 – 220793, 220794

Mrs. A. S. Ibok

Principal- FAAN Secondary School,

Calabar – Airport, Calabar.

Madam,

LETTER OF COMPULSORY LEAVE

You are already aware that the Management of FAAN, Calabar Airport has set up an Audit Committee to look into the affairs of FAAN Secondary and Primary Schools.

In view of the foregoing therefore, you are hereby placed on compulsory leave until further notice.

You are to handover all the schools properties and documents in your possession to the Acting Principal immediately.

Furthermore, you are to leave your contact address, should you be required for more details and information.

Please ensure strict compliance.

Sgd.

I.C. AMADIUME

Airport Manager.”

The same letters were issued and serve on the 2nd and 3rd respondents respectively.

It is well settled law that a master can suspend his servant when necessary. An employer can suspend his employees when necessary. That cannot amount to the breach of the servant’s or employees’ right. See: Ayewa vs. University of Jos (supra). At page 144 Uwaifor, JSC, had this to say:

“The main issue in this mattes is whether a servant who is suspended by his master so as to investigate allegations of impropriety leveled against him can have a recourse to the fundamental rights provision to prevent that suspension from operating. The lower Court has decided that such a scenario is not appropriate for asserting a breach of fundamental rights. I endorse that view. This is a matter of master and servant. The law is that a master can suspend his servant when necessary and there can be no issue of breach of fundamental rights.

In this instant case on appeal, it is clear that the essence of placing a servant on a compulsory leave, which is the same thing as a suspension from duty, is to enable the master to investigate the servant. This was clearly stated in the letter reproduced above. In the appropriate situation, a servant sent on compulsory leave may be recalled. It follows therefore that the fact that the respondents were served with letters of compulsory leave is not a breach of their fundamental right or common law right as the case may be. Therefore, the suit is incompetent and it deprived the court below the jurisdiction to adjudicate over the matter.

I, therefore, answer the question in Issue 2 in the negative. That is the court below was wrong to assume jurisdiction considering the facts of the compulsory leave of the respondents. I observed that the respondents and the court below relied on the counter-affidavit deposed by the 1st respondent. See pages 57-60. It is my view that the appellants filed the application for striking out the suit passed on the averments of the respondents in their statement of claim at pages 4 – 7 of the record. That means that the appellant must have admitted the averments to be true. In such circumstances it is only the statements of claim that should be considered. See Boothia Maritime Inc & 2 Ors vs. Fareast Mercantile Co Ltd. (2001) 4 SCNJ 178.

Furthermore, the averments in the respondents’ counter-affidavit are at variance with the averments their statement of claim and all their averments in their earlier affidavits and the exhibits attached thereto at pages 10 -45 of the record. So the averments in the counter-affidavit are unhelpful to the respondents and the trial Judge was in error to have relied on them and use them in his ruling. Moreover, parties are bound by their pleadings and would not be allowed to stray out of them. See Lawal vs. Oke (2001) 7 NWLR (Pt. 711) 88 at 109; Onyero vs. Nwadike (1996) 9 1 NWLR (Pt. 47) 231.

Having carefully considered all the points in Issue 2, I answer the question posed therein in the negative. That is to say, the court below was wrong to assume jurisdiction in view of the fact that the respondents were, according to their statement of claim only sent on compulsory leave. I therefore resolve Issue 2 in favour of the appellants and against the respondents. This appeal is meritorious and it therefore deserves to be allowed.

Accordingly, I allow the appeal. The Ruling of Hon. Justice M. Edem of the High Court of Cross River State in Suit No. HC/496/2002 delivered on 13/8/2003 is hereby set aside. I also strike out Suit No. HC/496/2002 filed by the respondents in the court below for want of competence.

I make no order as to costs.

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Other Citations: (2005)LCN/1783(CA)

Chief Samuel Omole & Ors V. Lawrence Ayo Oloruntimehin & Anor (2005)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE, J.C.A.

The Appellants were the Plaintiffs in the lower Court, who had sued the Defendants now Respondents, seeking for a declaration of title, trespass and general damages, For the sake of clarity, I reproduce the claim of the Plaintiffs before the Customary Court Ekiti East Grade 1, as follows:-

“(a) A declaration that the piece or parcel of land senate lying and being along Ajowa road Omuo Oke Ekiti East Local Government, which said Piece or parcel of land is known and called Atanlegbewa is the property of Arufe Community under and by virtue of Omuo native Law and custom and thence entitled to the Customary right of occupancy.

(b) An order nullifying the land allocation certificate or any other document howsoever relating to or connected with the said piece or parcel of land Issued to the defendants or any of them or any other person whatsoever or their agents, privies, servants or any other person purporting to derive title from the defendants by Ekiti East Allocation committee or any other person, body or government functionary either in Ekiti East Local Government or Ekiti State Government purporting to confer title of the land on the defendants.

(c) N2,000.00 General Damages for trespass committed and still being committed by the defendants on the said land.

Claim not admitted by the defendants”.

The Defendants in that court denied the claims. Evidence produced by both, Plaintiffs called three witnesses. Two witnesses testified for the Defendants. The court visited the locus in quo and some observations were made by the court on page 13 of the record dated 3019/98. It appears that learned Counsel to both parties did not deem it fit to address the court.

On 14th day of October, 1998, judgment was entered in favour of the Defendants and struck out the suit filed by the Plaintiffs. On page 18 of the Record the Senior President of that court Mr. D. C. Dada and a member Omole Esq. says:-

“From the evidence of the second defendant it is clear she does not need the land for her child or herself because she has built her own house and that of her son in under construction.”

Rather, she is fighting for the land for the entire family of her husband. One question strike this court, why has the entire family not made use or develop the land since 1946 which is about 52 years ago? The court believes that failure of the Oloruntimehin family to develop the disputed land makes the Arufe community wants to claim the land back for their own community wants to claim the land back for their own community use. From all the above observations, the court believes that a plot of the whole land is in dispute and the other plot is vacant. The only area in dispute is the surveyed plot and it belongs to the defendants.

COURT ORDER:- It has been established that the disputed Plot is that of the Oloruntimehims. The case is hereby struck out”.

The Plaintiffs therein appealed to the High Court of Justice Ekiti State, holden at Ikale. Notice of Appeal containing for grounds of appeal were filed together with additional ground of appeal with the leave of the lower Court.

Learned Counsel to both parties addressed the court. Ruling was reserved on whether or not grounds 2, 3 and 4 of the additional grounds of Appeal are competent. On 29/9/99, ruling was given holding that those grounds in question are competent. See page 36 where Kayode Bamisile J. says:-

“It therefore seems to me that the interest of justice demands that parties in appropriate cases, should be afforded a reasonable opportunity for their rights determined on the merit so long as the equities of the matter are not defeated and no injustice to the other party is hereby occasioned. See also, the case of Abiegbe and others Vs. Ilugbodume and other (1983) NSCC page 26 consequently Grounds 2, 3 & 4 filed and argue (sic) as additional grounds of appeal is hereby granted and deemed as properly filed and served on the respondent”.

After the ruling learned Judge of the lower Court considered the main appeal and concluded that his court has no jurisdiction to try the case as the Plaintiffs action was caught off by Section 6(2) of the Limitation Laws which in effect affects the jurisdiction of that court. On page 59 he says:-

“On the whole, I hold that the defendants are covered by Section 6(2) or the Limitation Laws and ns this affects the jurisdiction of the court, there is no need to consider other grounds of Appeal. Consequently, I dismiss this Appeal and affirm the ruling of the lower Court, i.e., Customary court Omouo-Ekiti given on 14/10/98, in Suit No. CC/41/98.”

Having been aggrieved the Appellants therein appealed to this court on a Notice of Appeal containing Five grounds of appeal.

In compliance with Order 6 RR 2 & 4 of the Court of Appeal Rules both counsel filed their respective briefs of argument. The Plaintiffs/Appellants formulated 2 issues as follows:-

“(i) Whether or not, the Limitation Law or Ondo State is applicable to this case having regard to the claim before the court.

(ii) Whether the Court of Appeal can review the evidence adduced in the court of first instance and give judgment as the lower court ought to have done”.

The Respondent in turn distilled three issues for our consideration of the appeal, they are reproduced thus:-

“(a) Whether or not, the lower court was right in holding that Limitation law of Ondo State 1978 as applicable to Ekiti State affects this case having regard to the evidence of the parties.

(b) Whether the Respondents abandoned the land in dispute since it was granted to them in 1946 by Arufe Community to warrant any reversionary interest to Arufe Community.

(c) Whether the judgment of the trial Court is against the weight of evidence to warrant a review of it by the appellate Court and who is entitled to title to land where there are two claimants”.

On the 1st issue, the Appellants’ complaint is that the land in dispute was held under native law and custom how can section 6(2) of the Limitation Law of Ondo State apply to this matter. This matter should be excluded.

In arguing issue No. 1, learned Counsel for the Appellants Mr. Ogidan, contended that the claim of the Plaintiffs in the Writ of Summons was related to or based on a disputed land held under native law and custom of OMO-EKITI. Section 1(2) of the Limitation Law Cap 61, Laws of Ondo State as applicable to Ekiti State excludes this case from the ambit of the Limitation Law in matters relating to land held under native law and custom. The lower court, counsel submitted, was in gross error in law to have held that the Limitation Law of Ondo State, 1978 is applicable in this case.

I have considered the claims and evidence adduced by both parties. I have considered the Limitation Law Cap. 61 Laws of Ondo State applicable in Ekiti State Section 1 (2) thereof and hold that it was wrong for the trial Court, i.e. High Court of Justice Ekiti State to have held that the Limitation Law covered the Defendants now Respondents, since the Plaintiffs now appellants instituted as action outside the statutory period allowed by the law within which to file an action. The law stipulates a period of 12 years when the cause of action arose. The Defendants claimed that the land was granted them by the Plaintiffs’ community in 1946, and they were in possession since then. The Plaintiffs did not institute action until in 1998 far beyond the 12 years. On that score, the learned trial Judge held that the Limitation applied to cover the position of the Defendants now Respondents.

There is no doubt that the cause of action might have arisen since 1946. And where applicable the Plaintiffs’ right, which did not file action until 1998, becomes extinguished by virtue of the provisions of the Limitation Law of 1978 of Ondo State.

By virtue of Section 6(2) of the Limitation Law, Cap.6, of Ondo State, 1978, 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 accrued to him or, if it first accrued to some person through whom he claims, to that person.Before I proceed further, I wish to state three reasons why the decision of the lower Court cannot stand for being perverse:-

(a) The said cause of action, if any, accrued in 1946.

(b) The Limitation Law of 1978 was promulgated in 1978, after the so called right of action accrued; and

(c) That the land the subject matter of the suit before the Lower Court was held under the customary/native law”.

The cause of action of the Plaintiffs if any accrued before the promulgation of this Law in 1978. It may therefore be irrelevant not to talk of applicability of same in this mutter.

The learned trial Judge, with respect, failed to make further research to determine whether this Limitation Law applies to this land which is subject to Native law and custom. This Limitation Law does not give the Defendants now Respondents any licence to escape litigation. Section 1(2) of the Limitation Law Cap. 61 Laws of Ondo State 1978, as applicable in Ekiti State, provides thus:-

“(2) Nothing in this Law affects actions in respect of the title to land or any interest in land held by Customary tenure or in respect or in respect of any matter which is subject to the jurisdiction of a Customary Court relating to marriage, family status, guardianship of children inheritance of disposition of property on death”.

Consequently, and in view of the evidence and pleading in the lower court, I am of the firm view that the lower Court was palpably wrong in failing to consider that the Limitation Law does not apply to the land dispute the title of which was under the Customary law and again, it was incorrect to state that the said Limitation Law covered the Defendants before him. It is clear that unfortunately the learned trial Judge reached his decision per incuriam. That being the case his decision is wrong and perverse.

Accordingly, I allow this appeal and order for a retrial before another court with the requisite jurisdiction where full trial will be concluded. N5,000.00 costs to the Appellants.

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Other Citations: (2005)LCN/1782(CA)

Peoples Democratic Party V. Obayemi Toyin & Ors (2005)

LawGlobal-Hub Lead Judgment Report

FATIMA OMORO AKINBAMI, J.C.A.

This is an appeal against the decision of the Federal High Court II, Ekiti Judicial Division, Ado-Ekiti, presided over by Honourable Justice Taiwo Obayomi Taiwo, delivered on the 4th July, 2016, wherein the Court below granted into all the reliefs/prayers and submissions of the Plaintiff (hereinafter referred to as 1st Respondent in this appeal).

The Appellant, dissatisfied with the decision, promptly filed a notice of appeal containing 6 grounds of appeal against the judgment on 10th day of July 2016.

BACKGROUND FACTS

By Originating Summons dated and filed on the 10th of April 2015 and later amended on 30th March, 2016, pursuant to Order of the Court below, the 1st Respondent at pages 96-255 of the record approached the lower Court for the determination of the following questions and reliefs as set below:

I. Whether the judgment in Suit No: FHC/AD/CS/17/15 having been procured by fraud is not liable to be set aside by this Honourable Court.

II. Whether by virtue of the combined provision of Section 31 (5) & (6) of the Electoral Act 2010 (as

amended) the 1st Defendant was not bound to disqualify the 2nd Defendant as the candidate of the 3rd Defendant for Ado-Ekiti Constituency 1 of Ekiti State.

III. Whether by virtue of Paragraph (32)(d) of the Electoral guidelines for primary election 2014 of the Peoples Democratic Party and Section 66(1)(i) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the 4th Defendant is eligible to contest the Ado-Ekiti Constituency 1 in the Ekiti State House of Assembly.

IV. Whether by virtue of the provisions of Section 66(1)(i) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the 2nd Defendant is disqualifies as the candidate of the 3rd Defendant to contest for the House of Assembly election in Ado-Ekiti Constituency 1 of Ekiti State in the 2015 State House of Assembly Election.

V. Whether the 4th Defendant who did not obtain any form to contest or participate in the primaries of the 3rd Defendant in Ado-Ekiti Constituency 1 of Ekiti State except being an agent of the 2nd Defendant at the primaries of the 3rd Defendant held on 29th November, 2014 in contravention of Sections 31 and 87 of the Electoral Act,

2010 (as amended) is not disqualified to contest for Ado-Ekiti Constituency 1 of the Ekiti State House of Assembly in 2015 House of Assembly Election.

VI. Whether the 2nd Defendant is eligible to contest election into the Ekiti State House of Assembly Election having supplied false information to the 1st Defendant in INEC form CF. 001 and/or affidavit in support of personal particulars deposed to by him and fake West African Examination Council result submitted by him to the 1st Defendant contrary to S. 31(2) and (5) of the Electoral Act 2010 (as amended).

VII. Whether pursuant to paragraph 32(d) of 3rd Defendants Electoral guidelines for primary elections 2014 and the provisions of Section 31(5) and (6) of the Electoral Act 2010 (as amended), the Plaintiff should not be declared the candidate of the 3rd Defendant to contest for the House of Assembly Elections being the sole candidate of the 3rd Defendant having polled the highest number of valid vote cast in the primary election conducted by the 3rd Defendant, in view of the provision of Section 87 of Electoral Act 2010 (as amended).

RELIEF SOUGHT

A declaration that the 2nd Defendant by virtue of the provisions of Section 31(5) & (6) of the Electoral Act 2010 (as amended), and the judgment in petition No: NSHA/EPT/REPT/07/2011 between Ojeh Daniel Donald & Anor v. Hassan Anthony Saleh & 4 Ors disqualified from putting himself forward as the candidate of the 3rd Defendant in the 2015 Ado-Ekiti Constituency 1, House of Assembly Election.

II. A declaration that the 2nd Defendant stands disqualified from presenting himself as the candidate of the 3rd Defendant in the 2015 Ado-Ekiti Constituency 1, House of Assembly election by virtue of the presentation of forged document to the 1st Defendant for the Ado-Ekiti Constituency 1, House of Assembly Election.

III. A declaration that the clearance given to the 2nd Defendant is null void and of no effect whatsoever in as much as it failed to comply with the Electoral guidelines of the PDP and the Constitution provision.

IV. A declaration that all votes cast in favour of the 2nd Defendant on the 29th of November, 2014 during the 3rd Defendant primaries held for the Ado-Ekiti constituency 1, of House of Assembly Ekiti State are all wasted votes.

A declaration that the 2nd Defendant is disqualified as the candidate of the 3rd Defendant to contest for the House of Assembly Election in Ado-Ekiti Constituency 1, of Ekiti State in the 2015 House of Assembly Election by virtue of the fact that the information contained in the affidavit deposed to by him in INEC form is false.

VI. A declaration that the Plaintiff is the winner of the primary election held on 29th of November, 2014 and the candidate of the 3rd Defendant to contest for the House of Assembly Election in Ado-Ekiti Constituency 1, of Ekiti State in the 2015 House of Assembly Election being the sole candidate of the 3rd Defendant having polled the highest number of valid vote cast in the primary election in view of the provisions of Section 31 and 87 of Electoral Act (as amended).

VII. An order directing the 1st Defendant to declare the Plaintiff as the duly nominated candidate of the 3rd Defendant in the primaries of 29th November, 2014 for the Ado-Ekiti Constituency 1, of Ekiti State having polled the highest number of valid vote and equally participated in all stages of the primaries.

VIII. An order disqualifying the 2nd Defendant as the

candidate of the 3rd Defendant to contest for the House of Assembly Election in Ado-Ekiti Constituency 1, of Ekiti State in the 2015 House of Assembly Election.

IX. A declaration that the 4th Defendant having failed, neglected and/or refused to obtain nomination form or participate in the primaries of the 3rd Defendant in Ado-Ekiti Constituency 1, of Ekiti State except being an agent of the 2nd Defendant at the primaries of the 3rd Defendant held on 29th November, 2014 in contravention of Section 31 and 87 of the Electoral Act, 2010 (as amended) and paragraph 32(d) of the electoral guidelines for primary elections 2014 of the Peoples Democratic Party and Section 66(1)(i) of the 1999 Constitution of the Federal Republic of Nigeria(as amended) is disqualified to contest for Ado-Ekiti constituency of the Ekiti State House of Assembly in 2015 House of Assembly Election.

X. An order setting aside the judgment in Suit NO: FHC/AD/CS/17/15 same HAVING BEEN PROCURED BY FRAUD.

XI. An order directing the 1st Defendant to remove the name of the 4th Defendant in its record as the candidate of the 3rd Defendant to contest for the House of Assembly Election in Ado-Ekiti Constituency 1,

of Ekiti State in the 2015 House of Assembly and replace same with the name of the Plaintiff.

XII. An order that the Plaintiff is the candidate of the 3rd Defendant in Ado-Ekiti Constituency 1, of Ekiti State in the 2015 House of Assembly Election.

XIII. An order directing the 1st Defendant to cancel the Certificate of Return issued to the 4th Defendant and issue a Certificate Return to the Plaintiff Obayemi Toyin forthwith as the Honourable member in the House of Assembly for Ado-Ekiti Constituency 1, of Ekiti State and be sworn in by the Speaker of the House.

In reaction to the Originating Summons, the Appellant, the 3rd and 4th Respondents raised preliminary objection and counter affidavits to the Originating Summons coupled with written addresses duly filed as enjoined by the rules of the trial Court to the suit wherein the jurisdiction of the trial Court was vehemently challenged.

The 1st Respondent filed further affidavit and joined issues with the Appellant.

1ST RESPONDENTS CASE ON AFFIDAVIT EVIDENCE

The casus belli of the 1st Respondents in the Originating Summons was that he contested

3rd Respondent in the primaries election conducted under the aegis cum political platform of the Appellant into the Ekiti State House of Assembly Election, Ado-Ekiti Constituency 1, in the 2015, he admitted that though lost the primaries election against the 3rd Respondent.

That the 3rd Respondent won the primaries by a margin of 34 votes to his own 1 vote refusing to recognize that the 4th Respondent equally contested in the primaries.

1st Respondent was embittered that the 4th Respondent who in his stand did not participate in the primaries was substituted for the 3rd Respondent by the Appellant rather than himself-1st Respondent who ought to be substituted and sponsored by the Appellant as its candidate at the election to the Ekiti State House of Assembly, 2015.

APPELLANTS CASE ON AFFIDAVIT EVIDENCE

The Appellant in its pleadings before the trial Court stated that 4th Respondent actively participated in the primary election, scored the majority of the vote declared at the primaries but presented the name of the 3rd Respondent as the candidate of the Appellant, the act and action which was subsequently reversed by

order of the Federal High Court, Abuja, Suit No: FHC/ABJ/CS/125/2015 upon being challenged by the 4th Respondent herein with the knowledge of the 1st Respondent at all the material time the matter till the matter was finally determined in favour of the 4th Respondent.

That the 3rd Respondent applied to set aside the decision handed down by the Federal High Court in Abuja, but failed as the 3rd Respondents application was dismissed.

DECISION OF THE LOWER COURT

1. The trial Court set aside the decision of the Federal High Court Abuja in Suit No: FHC/ABJ/CS/125/2015, on the ground that same was procured by fraud and that Appellant lacked locus standi to maintain the suit.
2. That the 1st Respondent is the candidate of the Appellant.
3. The trial Court nullified the election of the 3rd and 4th Respondent into the Ekiti State House of Assembly on the ground that he did not participate in the primary election.
4. That the 3rd Respondent haven being disqualified, the 1st Respondent became the sole candidate of the Appellant at the primary election.
5. That the 2nd Respondent shall issue a Certificate of

Return to the 1st Respondent.

6. That the 4th Respondent shall return to the Ekiti State House of Assemblys coffers, all monies received, salary, constituency allowance and so on.
7. The trial Court granted more than the reliefs prayed by the 1st Respondent in his application.
8. That the gratuitous reliefs not prayed but granted cannot of cause be granted as an ancillary relief.

ISSUES FOR DETERMINATION

1. Whether the trial Court has jurisdiction to entertain the action against the Appellant in the circumstance of this case.
2. Whether the trial Court has the vires to set aside the decision in Suit No: FHC/ABJ/CS/125/2015 on grounds of fraud, or otherwise, in the circumstance of this case.
3. Whether the failure of the trial Court to hear the Appellant on the issue of locus standi to maintain Suit No: FHC/ABJ/CS/125/2015 and resolution of the issue suo motu has not occasioned a miscarriage of justice.
4. Whether the trial Court was right when it granted all the reliefs of the 1st Respondent and nullified the election of the 4th Respondent in the circumstance of this case.
5. Whether the trial Court was right to foist a

candidate, the 1st Respondent on the Appellant in the circumstance of this suit.

MARRIAGE OF ISSUES TO THE GROUNDS OF APPEAL

Issue no 1 is covered by grounds 1 and 3, issue no 2 is covered by grounds 2, 4 and 5, issue no 3, 4, and 5 covered by grounds 5 and 6.

ARGUMENT ON ISSUES

This appeal stems from the judgment delivered by Honourable Justice Taiwo Obayomi Taiwo .J. in the Federal High Court, Ado-Ekiti on the 4th July, 2016.

The Appellant adopts the reasoning and arguments canvassed by the 4th Respondent/Appellant in CA/EK/76/2016 herein in his Appellant Brief of Argument dated and filled 30th April, 2017.

I have carefully perused the Appellants Brief of Argument and Respondents Brief of Argument.

I have decided this appeal by adopting my decision in Appeal No: CA/EK/76/2016.

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Other Citations: (2005)LCN/1781(CA)

Nkiru Joy Oduche V. Obiefuna Ndubuisi Oduche (2005)

LawGlobal-Hub Lead Judgment Report

OLADOBE RHODES-VIVOUR, J.C.A.

The Respondent commenced divorce proceedings against his wife, the appellant, before the High Court of the Federal Capital Territory, holden at Gwagwalada, Abuja. He petitioned the Court to dissolve his marriage with the appellant contracted on the 8th day of September, 1984. His ground for the petition was that the marriage had broken down irretrievably in that the appellant deserted him and committed adultery. The respondent further claimed for custody of the three children of the marriage, and an order directing the appellant to revert the new surnames given to the children by her in their various schools to their real surname – ODUCHE.

The appellant in her answer to the 2nd amended petition filed a further amended Answer and cross petition seeking a dissolution of the marriage on the ground of living apart for a continuous period of three years, immediately preceding the presentation of the petition. In addition the return of her personal properties or payment of current value for same, and custody of the three children of the marriage.

Both parties gave evidence and tendered forty-five Exhibits. The respondent called two witnesses in support of his case, while the appellant did not call any witness.

The learned trial Judge, A.A Kolojo J. In a considered Judgment delivered on the 14th of November, 2000, made the following orders:

(a) Custody of Echezona Afamefuna Ejike ODUCHE (MALE) to the Respondent.

(b) Custody of the other children, namely Ndidi Sochi ODUCHE (FEMALE) and Emmanuel ODUCHE (MALE) to the appellant.

(i) the respondent should be allowed by the appellant to have access to the latter two children during school holidays and weekends;

(ii) the respondent should also be allowed to have a say in the school the children attend.

c) The appellant is hereby directed to revert the new surname given by her to the children in their various schools to their real surname namely – ODUCHE.

(c) The appellant has failed to prove that she is entitled to the return of her personal properties or payment of current value for some. The appellant is not given the custody of Afam. She is given the custody of Sochi and Emmanuel, subject to the conditions adumbrated above.

Earlier on the 16th of July, 1998, the learned trial Judge pronounced a decree Nisi dissolving the marriage after the parties agreed that they had lived apart for a continuous period of three years, immediately preceding the presentation of the petition.

The appellant appealed to this Court on four grounds of appeal out of which learned Counsel for the appellant, C.I. Okoye Esq. in an Appellant’s brief of argument filed on 19/8/03 formulated four issues for the determination of the appeal. The issues are stated as follows:

“1. Whether the learned trial Judge erred in Law, when he held that the presumption under Section 148 of the Evidence Act was not rebutted in this trial.

2. Whether the trial learned Judge erred in Law, when he held that the respondent is entitled to the custody of Afam ODUCHE.
3. Whether the trial Judge erred in Law, when he ordered the Appellant to revert the new surname given by her to the Children in their various schools to their real name, namely- ODUCHE.
4. Whether the trial Judge erred in Law, when he held that the fact that the respondent did not go for medical test which the appellant underwent does not mean that the respondent is sexually impotent.”

On the other side of the fence learned Counsel for the respondent, F.J. Oniekoro Esq. in his brief of argument filed on 13/10/03 submitted three issues for the determination of the appeal. These are:

“1. Did the appellant prove her claim that the respondent is not the father of the children of the marriage?

2. Whether or not, in the circumstances of the case, the trial Judge was wrong in his order directing the appellant to revert from the new and strange surname (Kathiems) given to the children by her to their real and father’s name – ODUCHE.
3. Whether or not, in the circumstances of the case, the trial Judge was wrong in the order of custody to the children”.

Counsel adopted their respective briefs of argument on 16/5/05.

After an examination of the issues formulated for determination, the judgment of the trial Court and the briefs of argument filed in this appeal, I am of the firm view that the issues formulated by learned Counsel for the appellant are to be preferred as they cover the issues formulated by the respondent.

Before dealing with the submissions of learned Counsel on the issues in this appeal, a brief background of the facts before the trial Judge is necessary.

The parties got married at the Marriage Registry Suleja, Abuja on the 8th of September, 1984. They lived together and had three children, named Amamefuna Echezona ODUCHE (MALE) born on 16/11/86; Sachi Ndidi ODUCHE (FEMALE) born on 20/11/92, and Emmanuel ODUCHE (MALE) born on 4/8/94. The appellant gave birth to Emmanuel after she left the matrimonial home on 1/2/94. Thereafter, she changed the Surname of all the three children to KATHIEMS.

I shall now address the issues in this appeal seriatim.

ISSUE 1

Whether the learned trial Judge erred in Law, when he held that the presumption under Section 148 of the Evidence Act was not rebutted in this trial.

Learned Counsel for the appellant observed that the presumption in Section 148 of the Evidence Act was rebutted by strong and distinct evidence to the effect that:

(a) the respondent is impotent;

(b) the respondent had doubts about the paternity of the third child;

(c) there were no children of the marriage;

(d) Exhibits J and J1 show that the respondent is impotent;

(e) the respondent led no evidence to show there was intercourse between them.

Relying on OGBELE v. ONAH 1990 1 NWLR Pt. 126 p. 357 he submitted that the Honourable Court should answer issue NO.1 in the negative.

In reply, learned Counsel for the respondent observed that the evidence of both the appellant and the respondent established the fact that they lived together as husband and wife and none of the parties gave evidence of non-access or absence of sexual intercourse between them when they were together as husband and wife. He further observed that both parties confirmed that the first and second children were born while they were living together while the third child was born six months after the appellant had moved out of the matrimonial home.

He submitted that where a child is born in wedlock, intercourse is presumed between the husband and the wife and where a child is born during the continuance of a valid marriage or within 280 days after its dissolution, the Court shall presume the said child to be the legitimate son of the man if the mother remained unmarried.

Reliance was placed on –

EGWUNWOKE v. EGWUNWOKE 1966 All N.L.R. P. 301; OGBOLE v. ONAH 1990 1 NWLR Pt, 126 p. 357.

He urged the court to hold that the appellant did not prove that the respondent is not the father of the children and that respondent’s refusal to undergo medical examination could not amount to withholding evidence as envisaged under Section 149(d) of the Evidence Act.

Section 148 of the Evidence Act states that

“Without prejudice to Section 84 of the Matrimonial Causes Act where a person was born during the continuance of a valid marriage between his mother and any man or within 280 days after dissolution, the mother remaining unmarried the Court, shall presume that the person in question is the legitimate son of that man.”

While Section 84 of the Matrimonial Causes Act, 1990, provides:

“Notwithstanding any rule of Law, in proceedings under this Decree either party to a marriage may give evidence proving or tending to prove that the parties to the marriage did not have sexual relations with each other at any particular time but shall not be compellable to give such evidence if it would show or tend to show that a child born to the wife during the marriage was illegitimate.”

Indeed, Section 148 of the Evidence Act embodies the rule of Law that a child born while a marriage is valid or during two hundred and eighty days after its dissolution shall be conclusive proof that it is the legitimate child of the man unless it is proved by clear, and compelling evidence that the husband and wife did not or could not have sexual intercourse.

The evidence required to rebut the presumption in Section 148 of the Evidence Act must be strong, clear and conclusive as to lead to the irresistible conclusion that the child is not the offspring of the husband. The presumption cannot be displaced by mere balance of probabilities or by circumstances casting doubt. See- ELUMEZE v. ELUMEZE 1969 All N.L.R. p. 301; EGWUWOKE v. EGWUNWOKE NWADIKE & ORS. 1966 All N.L.R. p. 301;

WATSON v. WATSON 1933 2 All E.R. p. 1013.

The principle underlying the rule is obvious. It is most undesirable to enquire into the paternity of a child where parents have access to each other. The presumption of Legitimacy under Section 148 of the Evidence Act is a rebuttable presumption of Law which can only be displaced by showing that the parties to the marriage had no access to each other. Evidence must be strong, that is to say it must be proved that access was impossible on account of illness, impotence.

Furthermore, the appellant changed the surnames of the three children to “Kathiems”. The fact that she is living in notorious adultery is not sufficient to repel the presumption in Section 148 of the Evidence Act. See- R. v. MANSFIELD 1841 1 Q.B. p. 444; HOWES v. DRAEGER 1888 23 Ch.D p. 173.

In the instant case not a shred of evidence was led by the appellant that during the marriage she did not have sexual intercourse with the respondent, or that access was impossible. The learned trial Judge in my view was right when he held that –

“The appellant cannot be heard to say that the respondent is not the natural father of the children. It is scandalous and absurd on the part of the appellant to say the first two children are not the children of the respondent. By virtue of Section 148 of the Evidence Act the third child, Emmanuel who was born six months after the Respondent left the matrimonial home is the child of the respondent….

There is no evidence that the respondent could not have been the father of the children.”

The trial Judge continued –

“The fact that the respondent did not go for medical tests which the appellant underwent does not mean that the respondent is sexually impotent ”

The respondent’s refusal to undergo medical examination does not amount to withholding evidence as envisaged under Section 149 (d) of the Evidence Act. When a party does not call a witness who is available and is acquainted with the facts of the case, the presumption is that if the witness was called, the evidence he would have given would be unfavourable to the party at whose instance, he came to court to give evidence. It is thus, legitimate to draw an adverse inference if the witness abstains from coming to court to give evidence. See IWUCHUKWU v. ANYANWU 1993 3 NWLR Pt. 311 p. 318; In re: ADEWUMI & ORS. 1988 3 NWLR Pt. 83 p. 483; BAMGBOSE v. JIAZA 1991 3 NWLR Pt. 177 p. 64.

There is no burden on the respondent to call a witness to establish the fact that he is capable of pregnating his wife. The Law presumes that fact.

Indeed, when a child is born in a valid marriage the Law presumes that the married couple had sexual intercourse between themselves.

I am satisfied that the trial Judge was right in his findings that the three children are indeed the children of the respondent. The appellant being unable to rebut the presumption in Section 148 of the Evidence Act.

I must observe that judgments are based on facts of the case and not on our beliefs or our personal thoughts.

ISSUE 2

“Whether the trial learned Judge erred in Law, when he held that the respondent is entitled to the custody of Afam

ODUCHE”

Learned Counsel for the appellant observed that since the respondent is a cult member whose activities are secret, he is not a fit and proper person to have custody of the child. Relying on Registered Trustees of the Rosicrucian Order Armoc Nig. v. Awoniyi 1994 7 NWLR Pt. 355 p. 154; Williams v. Williams 1987 1 NSCC Vol. 18 p. 454; section 71(1) of the Matrimonial Causes Act 1990; he urged the Court to resolve issue 2 in the negative.

In reply, learned Counsel for the appellant observed that the Court took into consideration the circumstances of the case and rightly exercised his discretion judicially and judiciously in making the order of custody. Reliance was placed on- Otti v. Otti 1992 7 NWLR Pt. 252 p. 187; Nzelu v. Nzelu 19973 NWLR Pt. 494 p. 475.

He urged the Court to hold that the order of custody made by the trial Court in the circumstances of the case was not wrongful.

Section 71(1) of the Matrimonial Causes Act 1990 provides as follows:

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

When deciding the issue of custody, the trial Judge exercises a judicial discretion and in exercising that discretion he should take the following factors into consideration: These are the ages of the children, education, welfare and general upbringing, the arrangements made for their accommodation, the conduct of the parties to the marriage. Indeed the interest of the children at all times should be of paramount consideration.

An appellate Court will not interfere if the discretion has been judicially exercised but where it was exercised arbitrarily, or tainted with some illegality or irregularity, this Court has a duty to reverse or modify the trial court’s order as it deems fit. See- UNIVERSITY OF LAGOS v. AIGORO 1985 1 NWLR Pt. 143 p. 148; ANYAH v. A.N.N. LTD. 19926 NWLR Pt. 247 p. 319; NZERIBE v. DAVE ENGINEERING CO. LTD. 1994 8 NWLR Pt. 361 p. 124; R.G. (INFANTS) 1965 Sol JO p. 756.

The learned trial Judge granted custody of the eldest son who was then 14 years old to the respondent (the father) and the two other children aged 8 years and 6 years to the appellant (the mother). His lordship expressed his views on the matter as follows:

“Both parties have adequate accommodation for the children but the respondent (father) seems to have an edge on this and other amenities over the appellant (mother). In an application of this nature, the interest of the children should be the uppermost consideration. I think it is in the interest of the younger children, Sochi And Emmanuel to continue to stay with their mother. The respondent does not have any objection to this Provided he is given access to the children during School holidays or weekends.

This is a reasonable demand…”

His lordship continued-

“…In any case, Afam Oduche, the parties first child was born in 1986. He is now 14 years old and in Senior Secondary School. He should now be in a position to have a mind of his own. He should know the difference between what is good and what is bad. Afam is a big boy and I see nothing objectionable in awarding his custody to the respondent (father). But the boy, Afam Oduche, should be allowed to spend half of his school holidays with his mother, the appellant.”

I am satisfied that the trial Judge exercised his discretion properly. No extraneous matters were considered. His lordship saw and heard the parties. He watched their demeanour and quite rightly in my view exercised his discretion as he saw fit.

It is not for the Court of Appeal to reverse his orders on custody because it may have exercised its discretion differently. Once extraneous matters were not considered, His Lordship’s orders are correct.

DAVIES L.J. in Re O. (Infants) 1971 All ER p. 744 said as follows:

“There is no rule that little children should be with their mother any more than there is a rule that boys approaching adolescence should be with their father; it depends on what is proper in each individual case.”

See also WILLIAMS v. WILLIAMS 1987 2 NWLR Pt. 54 p. 66.

I feel it is right that a boy of 14 years old, other things being equal is better to be with his father.

Learned Counsel for the appellant made heavy weather of the fact that the respondent is a member of a Secret Society – AMORC and so not a fit and proper person to be saddled with the custody of the young teenager.

After reviewing evidence, the learned trial Judge found that in 1988, the respondent took oath that he would no longer be a member of AMORC. The trial Judge then ruled that the respondent is no longer a member of AMORC. In cross examination, it was established that the respondent was no longer a member of AMORC as from 1994 in view of the fact that there was no re-examination on that issue. At the time, judgment was delivered on 14/11/2000, the trial Judge was right to award custody of Afam to the respondent after satisfying himself that the respondent was no longer a member of a Secret Society.

I for one, am not aware of any law, policy or legal authority that bars members of secret societies from supervising the upbringing of children, after all, our country and indeed other countries abound with secret societies and the members have children, who are well brought up. The order of the trial Court on the award of custody of Afam to the respondent is correct.

ISSUE 3

“Whether the trial Judge erred in Law, when he ordered the appellant to revert the new surnames given by her to the children in their various schools to their real name, namely ODUCHE.”

Learned Counsel for the appellant observed that the trial Judge’s order directing the appellant to revert the new surname given by her to the children in their various schools to their real surname namely ODUCHE is a decision not based on reason and evidence. Referring to exhibits B-B14, D-03 learned Counsel further observed that they were contradictory regarding the surname of the children. Relying on KAMALU v. UMUNNA 1997 5 SCNJP. 201; SEISMOGRAPHS SERVICES NIG. LTD. v. EYUAGE 1976 9-10 SC p. 135

he urged the court to answer issue 3 in the negative.

Learned Counsel for the respondent observed that his children answered his name, Oduche prior to when the appellant left him. Reference was made to Exhibits D, D1, D3, G, G1-7.

He urged the court to hold that the trial court’s order that the new and strange surname given to the children by the appellant be reverted to their real surname was not wrong.

The trial Court held inter alia:

“The conduct of the Appellant (mother) in changing the surname of Afam Oduche and Sochi Oduche is most reprehensible and detestable. The children bore the surname of their father, while both the Petitioner (now respondent) and the Respondent (now appellant) lived together.

The first child, Afam, was born on 16/11/86 at the City Clinic and Maternity Suleja and Abuja. Exhibit D is his birth Certificate. His name therein is Echezona Afam E. ODUCHE. Exhibit D3 is his certificate of Baptism and his name again is Echezona A.E. ODUCHE.

With the passage of time, the appellant became very bitter. The marriage now a sham, she changed Afam’s surname to Okoye, See Exhibits B1, B6, B7, B9, B11, B14, C1, C7. Okoye is the appellant’s maiden name. She proceeded thereafter to change the children’s surname to Kathiems. See Exhibits A, A2.

These children in their short life so far were once called ODUCHE and then Okoye and now KATHIEMS. It is clear to my mind that the trial judge was right to order that their names should be changed back to ODUCHE.

The appellant is apparently unaware that these children are very likely to be traumatized for a long time to come.

Meanwhile, dark clouds of suspicion remain over the paternity of these unfortunate children.

This is a patrilineal and not a matrilineal society, and some features of family life are elemental. Children take their father’s name and not their mother’s name.

No evidence was led as to who KATHIEMS is. In any case, if he is a man, he never contested the paternity of the children. That issue is not worth considering since it was not even remotely considered at the trial Court.

On this issue, the trial Judge was right after examining documentary evidence to order that the surname of the children is ODUCHE. This reasoning is premised on the fact that documentary evidence makes oral evidence much more credible.

In KINDLY v. M.G. OF GONGOLA STATE 1988 2 NWLR Pt. 77 p. 473 It was held “that documentary evidence serves as a hanger from which to assess oral testimony.”

See OMOREGBE v. LAWANI 1980 3-4 SC p. 117; BURAIMOH v. ESA. 1990 2 NWLR (pt. 135) p. 406; OLOWOFOYEKU v. A.G. OYO STATE 1990 2 NWLR (Pt. 132) p. 369.

Once again, the trial Judge was right on issue 3 in view of the overwhelming documentary evidence.

ISSUE 4

“Whether the learned trial Judge erred in law, when he held that the fact that Petitioner (now respondent) did not go for medical tests, which the Respondent (now appellant) underwent does not mean that the respondent is sexually impotent”.

This issue was dealt with in a flawless manner by the learned trial Judge in a considered Ruling delivered on 13/5/99.

His lordship found that the court can only order medical inspection of the type required in a divorce matter where the proceeding is for a decree of nullity of a voidable or a void marriage.

His lordship relied on Order X1 rule 21(1) of the Matrimonial Causes Rules and rightly observed that relief sought in the substantive suit is for dissolution of marriage on grounds other than those to which Order X1 rules 21(1), 23 apply.

His lordship further found and quite rightly too, that by the provisions of Section 84 of the Matrimonial Causes Act, which I had cause to refer to earlier in this judgment that neither party shall be compellable to give evidence that would show or tend to show that a child born to the wife during the marriage was illegitimate. His lordship concluded by saying that from the provisions of Section 84 of the Matrimonial Causes Act and Section 148 of the 1990 Evidence Act, it would seem to me improper to order a medical inspection of the respondent in the circumstances of this case. I agree entirely with the trial Judge on issue 4.

Where the husband and wife have co-habited together and no impotency is proved to the satisfaction of the court, the child or children are conclusively presumed to be legitimate even though the wife is shown to have been, at the same time guilty of infidelity, and even where the parents are living apart a very strong presumption of legitimacy still arises, and it can only be rebutted by irresistible proof of non-access to sex.

Indeed, Section 84 of the Matrimonial Causes Act, Order X1 rules 21(1) and 23 of the Matrimonial Cause Rules and Section 148 of the Evidence Act ensures that on ground of public policy it is most undesirable to enquire into the paternity of a child whose parents have access to each other.

Medical test for the respondent is uncalled for in the circumstances of this case. Such a requirement or suggestion degrades the sanctity of marriage and is obviously contrary to public policy.

Again, the trial judge was right on issue 4.

There is no merit in this appeal.

The judgment and orders of the trial Court are hereby affirmed.

Appeal dismissed.

I award costs of N5,000 to the respondent.

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Other Citations: (2005)LCN/1780(CA)

Corporate Affairs Commission V. Mr. Taiwo Ayedun (2005)

LawGlobal-Hub Lead Judgment Report

MARY PETER-ODILI, J.C.A. 

This is an appeal against the Ruling of the Hon. Justice Stephen Jonah Adah of the Federal High Court, Abuja, delivered on May 22nd, 2003, granting an order of mandamus at the plaintiff’s/respondent’s instance against the appellant, directing the appellant to apply to court for directions on the issue of refusal to register the name Credit Registry Limited, which the plaintiff/respondent had presented for incorporation.

Briefly, the Facts

The plaintiff/respondent together with two other persons came to incorporate a company with the name Credit Registry Limited. The appellant Corporate Affairs Commission declined to register the name on the ground, that it will mislead the public into thinking that it is a public institution, such as Marriage Registry, Companies Registry, Deeds Registry, etc. This was purportedly communicated to the respondent in a letter dated 25th February, 2002, since respondent said they did not get the letter. The appellant was prepared to register and incorporate the objects of the memorandum of association of the company if the name chosen was changed to another acceptable name such as Credit Data Limited which the respondent had even suggested as an alternative name. The respondent insisted on using the rejected name, Credit Registry Limited and issued a notice to the Registrar General of the Corporate Affairs Commission purportedly under section 36(2) of the Companies and Allied Matters Act, 1990, requiring the Registrar General of the Corporate Affairs Commission to apply to the court within 21 days for directions in respect of the refusal to register the name. The refusal of the appellant to apply to court for directions as requested prompted the application for mandamus by the respondent which the lower court granted and which is the subject matter of this appeal.

The refusal of the appellant to apply to court for directions was based on the argument that section 36(2) of the Companies and Allied Matters Act is only applicable to registration of objects of a company in the memorandum of association and not to acceptance or rejection of names of companies for registration which is governed by section 30 of the said Companies and Allied Matters Act, 1990.

The appellant had in their notice and two grounds of appeal shown the foundation upon which this appeal is hinged. On the basis of those two grounds the appellant formulated two questions for determination which are:

1. Whether the provisions of section 36(2) of the Companies and Allied Matters Act, 1990, impose an obligation on the Corporate Affairs Commission (appellant) to apply to court for directions in respect of the appellant’s refusal to register the name Credit Registry Limited.
2. Whether the order of mandamus issued by the lower Court against the appellant requiring the appellant to apply to court for directions under section 36(2) of the Companies and Allied Matters Act was justifiable in law.

The respondent raised two issues for determination which are:

1. Whether or not, the learned trial Judge was right to have held as he did that section 36(1) to (6) of CAMA 1990 was the peak point of registration of companies and by virtue of section 36(1)( a) included matters under consideration relating to names in section 30(1) of the CAMA 1990 so as to enable the respondent come under the operation of section 36(2) of CAMA 1990.
2. Whether or not, the order of mandamus granted by the learned trial Judge was only to the effect that the respondent complies with the provisions of section 36(2) of the CAMA 1990 and did not compel the appellant to register the name Credit Registry Limited

Issue 1:

Learned Counsel for the appellant in arguing this point said section 30(1), (2) of the Companies and Allied Matters Act dealt with the registration or not of the name of a company while section 36 of the CAMA makes provisions on the registration of the memorandum and articles of association of a company seeking incorporation as a legal entity. He referred to and quoted the provisions of section 30(1), (2) of CAMA and section 36(1)(a) to (e), (2) of the same CAMA.

Learned Counsel said no provision requiring the commission to apply to court for directions exists in section 30, which deals with names of companies to be registered such as Credit Registry Limited. That since no dispute existed between the parties in respect of the registration of the memorandum and Articles of Association of the company proposed for incorporation, it is submitted that the lower court was in error to have invoked section 36(2) against the appellant. Learned Counsel further stated, that although there is no previous decision of the Court of Appeal or Supreme Court on the correct interpretation of section 36(2) of the Companies and Allied Matters Act, 1990, on the question of whether or not, section 36(2) also applies where the commission rejects a name for registration, it is submitted that the correct interpretation is that the same section 36(2) of CAMA applies to registration of memorandum and articles of association only and not to acceptance or refusal of names for a company proposed to be incorporated. He said this is because it is the registration of the memorandum and articles of association of a company that gives it the status of a legal personality and not the acceptance or rejection of its names. He referred to S. 36(5) of CAMA. That all a promoter seeking to incorporate a company needs to do if the name is rejected by the commission is choose another name. That where such a promoter insists on invoking the court’s jurisdictional power to force the commission to accept a particular name, nothing stops such a promoter from applying to court for a declaration that the name chosen passes the tests prescribed in section 30 of CAMA but not to invoke section 36(2) which relates to registration of the memorandum and articles of associations of a company proposed for incorporation.

Learned Counsel for the respondent submitted that by virtue of section 27(1) of CAMA, every memorandum of association submitted for registration shall state by provisions of section 27(1)(a); the name of the company, and by the provision of section 27(1)(c) the nature of the business or businesses which company is authorized to carry on, amongst other provisions. He referred to section 27(1)(6). He said that therefore no memorandum of association submitted for registration will therefore be considered if as a first step it does not bear a name.

Learned Counsel contended that by virtue of section 30 of CAMA, certain names are either prohibited or restricted, and that in consideration of the registration of the memorandum of association, names submitted on memorandum of association would have to pass the standard for acceptance of names prescribed under the provisions of that section.

Learned Counsel for respondent stated further that the test for the acceptability of names is stated clearly and succinctly under section 30(1) (a) – (d) and no further discretion outside what is prescribed therein is conferred on the appellant, such as an omnibus provision. That the difficulty faced by the appellant is in justifying by facts, the decision to refuse the name under any of these provisions. That to justify a decision under section 30(1)(c) of CAMA, there must have been a conflict between the stated objects of the proposed company as embedded in its memorandum of association and the proposed name submitted.

Learned Counsel said that the power to exercise the discretion under section 30 of CAMA is contained in section 36(1) (a) – (e) and it is stated clearly in section 36(1)(a) that the commission shall register the memorandum and article unless in its opinion they do not comply with the provisions of the Act, part of which provision is the requirement to scale prohibited or restricted names in section 30(1)(c), which the appellant has cited as reason for refusal. That having declined to register the memorandum of association under section 36(1)(a) as a result of their not complying with the provisions of section 30(1)(c) of the Act, the respondent was now within its right to exercise the right conferred by section 36(2) of the CAMA 1990, giving notice to the appellant to apply within 21 days to a court of competent jurisdiction asking for its directions.

Section 30(1) of the CAMA provides:-

“No company shall be registered under this Act by a name which;

(c) “In the opinion of the commission is capable of misleading as to the nature or extent of its activities or is undesirable, offensive or otherwise contrary to public policy.”

Section 30(2) of the same Act provides:

“Except with the consent of the commission, no company shall be registered by a name which;

(a) Includes the word “Federal”, “National”, “Regional”, “State”, Government”, or any other word which in the opinion of the commission suggests or is calculated to suggest that it enjoys the patronage of the Government of the Federation or the Government of a State in Nigeria as the case may be or any Ministry or Department of Government.”

On the other hand, section 36(1) provides that the commission shall register the memorandum and articles of association of a company unless any of the reasons listed in section 36(1)(a) – (e) applies.

Section 36(2) provides that any person aggrieved by the decision of the Commission in respect of the registration of the memorandum and articles of association may give notice to the Commission requiring it to apply to court for directions within 21 days of the receipt of such notice.

It is noted that no such provision requiring the Commission to apply to court for directions exist in section 30 which deals with names of companies to be registered such as Credit Registry Limited.

Those are the relevant provisions of the Companies and Allied Matters Act, 1990 for utilisation in decision making in this appeal.

It is a fundamental and cardinal principle of interpretation of statutes that where in its ordinary meaning a provision is clear and unambiguous, effect should be given to it without resorting to external aid. See A.-G., Federation v. A.-G., Abia State & Ors. (No.2) (2002) 6 NWLR (Pt. 764) 542 at 794 paras. B – C per Uwais CJN; A-G., Bendel State v. A.-G., Federation (1983) 1 SCNLR 239.

It is not difficult to find that the said provisions of CAMA that is S. 36 and its subsections are clear and state quite clearly and without a cloud what was intended in those provisions that is, that the matter of appellant asking for directions are within matters concerning the memorandum and articles of association which are different from the propriety or otherwise of the registrability of a name for incorporation.

Therefore, the learned trial Judge had no business importing into section 30 and its subsections the requirements asked for in section 36 which covered memorandum and articles of association.

I would here refer to the case of: Fawehinmi v. IGP & Ors. (2002) 7 NWLR (Pt. 767) 606 at 678 paras. B-D per Uwaifo, JSC.

The proper approach to the interpretation of clear words of a statute is to follow them in their simple, grammatical and ordinary meaning, rather than look further because that is what prima facie gives them their most reliable meaning. This is also generally true in the construction of statutory provisions if they are clear and unambiguous even when it is necessary to give them a liberal or broad interpretation (African Newspapers (Nig.) Ltd. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137; Salami v. Chairman LEDB (1989) 5 NWLR (Pt. 123) 539; Ogbonna v. A.-G., Imo State (1992) 1 NWLR (Pt. 220) 647 referred to).

From the foregoing, I have no difficulty in answering issue No.1 in the negative as I am satisfied that the provisions of sections 36(2) of the Companies and Allied Matters Act, 1990 did not impose an obligation on the Corporate Affairs Commission (appellant) to apply to court for directions in respect of the appellant’s refusal to register the name Credit Registry Limited.

Issue 2:

Learned Counsel for the appellant said the boundaries of the law on mandamus were restated and beaconed by the Supreme Court of Nigeria in the well known case of Fawehinmi v. IGP (2002) 7 NWLR (Pt.767) page 606. Where the Supreme Court made it clear that the prerogative order of mandamus cannot lie where other reliefs or legal remedies are available to the applicant. He referred to the Court of Appeal decision in Wemabod Estates Limited v. Joyland Ltd. (2001) 18 NWLR (Pt. 744) 22.

Learned Counsel for the appellant said from the case above cited that all the respondent needed to do was to choose another name and the appellant would have registered the company as an incorporated entity under the Companies and Allied Matters Act (CAMA) 1990. That it was therefore inappropriate in the circumstances for the lower Court to have issued an order of mandamus against the appellant. That the question that arises as to why the respondent insisted on the registration of the name Credit Registry Limited as a private limited liability company when the Commission (appellant herein) had pointed out that the name is capable of misleading the public into thinking that it is a public institution such as Marriage Registry, Companies Registry, Deeds Registry, etc.

Learned Counsel said the Supreme Court at page 653 of Fawehinmi v. IGP (supra) held that an order of mandamus will not be granted unless it is in the public interest to grant it. Learned Counsel submitted that it is not in the public interest for the lower Court to have granted an order of mandamus directing the appellant to apply for directions in respect of the appellant’s refusal to register a name that would definitely have led members of the Nigeria Public into believing that the company is a public institution. That the appeal ought to succeed and the order of mandamus granted by the lower court ought to be set aside.

The respondent through learned Counsel contended that once an applicant for registration under section 36 of CAMA 1990, gives notice of being aggrieved to the appellant, the appellant is bound to apply to court for direction within 21 days, a matter in which it can exercise no discretion whatsoever, and if it fails to do so, the proper remedy to seek for is an order of mandamus compelling it to do so, and the act envisaged under the law is to apply for directions.

Learned Counsel pointed out that the learned Judge did not in any way touch upon the propriety of the refusal to register the name Credit Registry Limited and the order was never to the effect that the name Credit Registry Limited should be registered. That the order of Court was that the appellant comply with section 36(2) of CAMA 1990.

That the argument that there existed an alternative remedy is untenable since what gives rise to the respondent’s right is his being aggrieved by refusal to register, and the offer of an alternative name is not an alternative remedy, since it does not offer an opportunity to test whether or not the respondent being aggrieved is justified. That there will be no reason for the respondent to come to court by way of declaration when the statute being considered contains specific provision dealing with the situation. That mandamus, as unpleasant as it is, has not been applied as a first line action. That it is the appellant’s own refusal to go by way of law that has exposed it to such an order.

Learned counsel said the appeal should be dismissed as lacking in merit on the consideration of the issues for determination and the arguments thereon for the respondent for the following:

1. The learned Judge was right to have held that section 36(5) and (6) of the CAMA 1990 was the peak point of company registration, and that by acting under section 30(1)(c) of the CAMA 1990, the appellant was exercising the powers by virtue of section 36(1)(a) of the CAMA 1990.
2. That the learned trial Judge in granting the order of mandamus did not in anyway overreach himself, as he clearly ordered that the appellant comply with section 36(2) of the CAMA of which the only act envisaged therein to be done is to apply to court for directions within 21 days. That the learned trial Judge did not have to weigh the facts on the ground of public interest, because the statute prescribed a duty for which there was no discretion. He cited the case of Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40 which counsel said was cited with approval in Fawehinmi v. IGP (2002) 7 NWLR (Pt. 767) page 606 at 672 paras. F – G.

It is needed at this point to refer to the motion on notice of 15/10/2002 in the Court below for the order of mandamus. It reads:

“… an order of mandamus against the respondents compelling them to (1) to comply with the provisions of section 36(2) of the Companies and Allied Matters Act, 1990 as requested by the applicant or (2) alternatively an order of mandamus against the respondents compelling them to register the company, the Company Credit Registry Limited in the absence of any issue of compliance.”

That was the prayer of the respondent to which the learned trial Judge considered favourably by stating in his ruling:-

I find that the 1st respondent has a duty under 21 days after the notice was served to apply to the Court for directions. This duty he refused to carry out and it is subject to the review of court by order of mandamus, The law is so clear. There is no alternative remedy created by the law. This therefore is a case to issue mandamus to compel the commission to apply to the court for direction. This I therefore order. I accordingly enter judgment for the applicant and I order that the commission shall within 21 days from today apply to court for direction under section 36(2) of CAMA.

That was the decision of the lower court which seems to be a wrong impression of what the Supreme Court must have envisaged in Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt. 45) 828 wherein that court held:-

“Whenever the court finds that a plaintiff has been wronged by a defendant especially where the defendant has breached a duty he owes to the plaintiff consequently causing a legal injury to the plaintiff, it is the duty of the court to provide a remedy for the plaintiff even if none had hitherto been prescribed in the statute books, for where there is a wrong, there must always be a remedy.”

That is definitely not the situation in the present case as the remedy provided in section 36 of CAMA are for specific situations while section 30 has given the appellant that is, Corporate Affairs the discretion in the registration or rejecting to register a name based upon certain criteria. It is only when those criteria are not adhered to or the discretion improperly exercised that a court can interfere. That certainly is not the case here as the appellant communicated to the respondent albeit orally by the admission of the respondent why the name was rejected. That situation falls squarely within the confines of section 30 of CAMA and I see nothing for which a departure from that section 30 would be encouraged. Furthermore, the lower Court had no business to expand the provisions of section 36 to include circumstances which were neither provided for within that section nor anticipated to be brought in by implication.

It is in keeping with the foregoing that I answer issue 2 in the negative. I hold therefore that the order of mandamus issued by the lower Court against the appellant requiring appellant to apply to Court for directives under section 36(2) of the Companies and Allied Matters Act was not justified in law.

I would like to add that in the exercise of judicial discretion the primary objective of the court must be to attain substantial justice. Acting judicially imports consideration of the interest of both parties and weighing them in order to arrive at a just and fair decision. See United Spinners Ltd. v. Chartered Bank Ltd. (2001) 14 NWLR (Pt. 732) 195 at 216.

An appellate Court in reviewing the exercise of a discretion by a lower Court should not substitute its own discretion for that of the lower Court, except where it is satisfied that the discretion was exercised arbitrarily or illegally or without due regard to all the necessary considerations having regard to the circumstances of the particular case. See United Spinners Ltd. v. Chattered Bank Ltd. (supra) at 219 – 220 paras. G-A; Nzeribe v. Dave Engr. Co. Ltd. (1994) 8 NWLR (Pt. 361) 124.

In conclusion, I do not hesitate in setting aside the decision and order of mandamus of the court below. I allow the appeal which is meritorious and I award N10,000.00 costs to the appellant to be paid by the respondent.

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Other Citations: (2005)LCN/1779(CA)

Ambassador Mike Gbasha V. Lovebet (Nig) Ltd. (2005)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LADAN TSAMIYA, J.C.A.

This is an appeal against the Ruling of the High Court of Benue State sitting in Makurdi Division in its original jurisdiction in suit No.: MHC/158/96 delivered on 20/3/1998.

The Plaintiff, (who is the Respondent herein) filed an action against the defendant (now Appellant herein) in the High Court (referred herein the trial court) claiming as follows:-

(a) N87,112.50 (Eighty Seven Thousand, One Hundred and Twelve Naira, Fifty Kobo) as unpaid accommodation fee for chalet No.: 205 at the rate of N250.00 (Two Hundred and Fifty Naira only) Hotel day/Night plus 15% Valued Added Tax (V.A.T.) from 14th August, 1995 to 15th July, 1996, the two dates inclusive.

(b) N250:00 (Two Hundred and Fifty Naira only) plus N37:00 (Thirty Seven Naira only) VAT, totaling N287:50 (Two Hundred and Eighty Seven Naira, Fifty kobo) per Hotel day/night from and including 16/7/96 till judgment is delivered and complied with.

(c) A Declaration on that the Appellant’s threat to take over possession of the premises in issue as above recited and his disruption/disturbance of the business threat are in breach of the Tenancy agreement of 2nd January, 1995 and is against equity and good conscience.

(d) N500,000.00 (Five hundred thousand Naira only) in general damages for breach of the Tenancy agreement of 2nd January, 1995.

(e) A perpetual injunction restraining the Appellant and his agents/privies, corn further harassing the Respondent’s Love-bet Hotel, Gboko or anywhere on the facts on issues herein concerned, pending the determination of the Tenancy agreement.

(f) A perpetual injunction restraining the Appellant and his agents/privies from further attempting to or actual taking over by force intrigue or conspiracy the possession of the premises, housing of Love-bet Hotel, Gboko or concerned in the Tenancy agreement of 2nd January, 1995.

The Writ of Summon regarding this suit was filed on 15th day of July, 1996; through Receipt No: BN 079058. while suit was pending before the trial Court, the Respondent, by Receipt No: BN 285044 filed Motion No: MHC/90m/98 seeking the following:-

(a) An Order compelling the Appellant to re-open No: 1, Jacob Damjor Street, G.R.A., Gboko and to allow the Respondent’s Hotel business to flow till the determination of the substantive suit.

(b) An Order compelling the Appellant and his agents/privies to cease his rampageous acts of molesting the staff and Guests, bringing business to a halt and sealing the premises of the respondent Gboko Love-bet Hotel at No: 1, Jacob Damjor street, Gboko, by the use of violence, thugs or any illegal and improper means until the determination of the substantive suit.

(c) An Order directing the Chief Bailiff or a representative of this (i.e. lower court) to witness the re-opening of the Respondent’s Hotel premises at No: 1, Jacob Damjor street G.R.A., Gboko, and the taking of inventory of property and equipment there at for the purpose of marking and ascertaining any damage or loss pending determination of the substantive suit.

(d) Leave to amend the Respondent’s Statement of Claim in the substantive suit No.: MHC/158/96.

(e) To deem the amended Statement of Claim filed herewith as properly filed and served, proper filing fees has been paid.

And for order/further orders this court may deem necessary to make in the interest of justice.

After hearing the motion the trial court, on pages 37 – 38 of the record of this appeal, made the following orders:-

1. The Appellant shall forth with re-open No: 1, Jacob Damjor street, G.R.A., Gboko, and allow the Respondent’s business to flow till the determination of the substantive suit.
2. The Appellant and his agents or privies are restrained from molesting the staff and guests of the Respondent’s Gboko Love-bet Hotel and I sealing up the premises of the said hotel or doing anything that will disrupt the business of the hotel pending the determination of the substantive suit.
3. Leave is granted to the Respondent to amend his Statement of Claim suit No: MHC/158/96. And
4. The Amended Statement of Claim annexed to the application deemed as properly filed served, the necessary fees having been paid.

It is against this ruling delivered on 20/3/98, that the appellant has brought this appeal to this court. The parties exchanged briefs in respect of the Rulings against the orders made.

The Appellant’s appeal was on four (4) grounds, with their particulars.

The grounds are as follows:

1. The learned trial Judge erred in law, when she assumed jurisdiction on in the case without allowing the matter to be first entertained by the arbitration penal before the Court could validly assume jurisdiction.

PARTICULARS OF ERROR IN LAW

(i) Before the determination of the motion No: MHC/90m/98, the Statement of Claim before the Court was the one dated the 15th day of July, 1996, which was annexed to the said Motion No: MHC/90m/98 and marked Exhibit ‘A’.

(ii) By paragraph 18 of the aid Statement of Claim, it was obvious that the tenancy agreement which was executed by the parties had an arbitration clause on page 4.

(iii) In his argument in support of the Motion before the trial High Court, the learned Counsel to the Plaintiff/Applicant conceded the fact that the tenancy agreement contained an arbitration clause.

(iv) The learned trial High Court was therefore in grave error, when she held that there was no evidence before her ousting her jurisdiction in the heating of the substantive matter and the Motion before her on the basis of the arbitration clause.

2. The learned trial Judge erred in law, when she made an order restraining the Respondent and his agents or privies from molesting the staff and guests of the Plaintiff/Applicant’s Gboko Love-bet Hotel and sealing up the premises of the said Hotel or doing anything that will disrupt the business of the Hotel pending the determination of the arbitration case.

PARTICULARS OF ERROR

(i) In relief (b) in the Plaintiff/Applicant’s motion paper. The Plaintiff/Applicant claimed as follows:-

“An order compelling the Defendant/Respondent and his agents/privies to cease his rampageous acts of molesting the staff and guests, bringing business to a halt and sealing the premises of the Plaintiff/Applicant’s Gboko Love-bet Hotel at No.1, Jacob Damjor street, Gboko by the use of evidence, thugs or any illegal improper means until the determination of the substantive suit.

(ii) That prayer was refused by the trial Court on the ground that as far as the evidence before the court showed, it was an event that had already occurred.

(iii) The said Relief (b) by all intents and purpose sought an order of the trial Court to restrain the Defendant/ Respondent from doing the acts complained therein till the final determination of the substantive suit.

(iv) After refusing to grant the said prayer (b) it was no longer the function of the trial High Court to build up a different case for the Plaintiff/Applicant and grant him the same order which had earlier being refused under the omnibus ground.

3. The learned trial Judge clearly erred in law, when she granted interlocutory reliefs to the Plaintiff/Applicant on insufficient material which did not establish any legal right in the said Plaintiff/Applicant which was capable of being protected.

PARTICULARS OF ERROR IN LAW

(i) Paragraph 5 of Exhibit ‘A’ as well as paragraph 5 of the Amended Statement of the Plaintiff/Applicant’s claim clearly showed that the Plaintiff/Applicant was a tenant of the Appellant on the property in issue by virtue of a Tenancy agreement dated 2nd January, 1995.

(ii) The claims of the Plaintiff/Applicant as can be found in paragraph 18 of Exhibit ‘A’ as well as paragraph 37 of the Amended Statement of Claim are all based on an alleged breach of the said Tenancy Agreement of 2nd January, 1995.

(iii) To be entitled to the reliefs which were granted to the Plaintiff/Applicant, they had a duty to proof before the trial Court their legal right to repair on the Appellant’s property which was capable of being protected till the final determination of their case.

(iv) To be able to do that, it was incumbent on the plaintiff/Applicant to present before the trial Court the said Tenancy Agreement which gave them the right to remain on the property and also to clearly establish the areas it was breached.

(v) The failure to do that was fatal as it only meant that the Plaintiff/Applicant did not establish any legal right to remain on the Appellant’s property which was capable of being protected.

4. The learned trial Judge erred in law, when she Granted interlocutory reliefs in respect of acts Which had already been done and completed.

(i) Paragraphs 9 and 10 of the affidavit in support of the Plaintiff/Applicant motion clearly showed that the taking over of the premises was done and completed on the 15th day of February, 1998.

(ii) Interlocutory injunction cannot be granted in respect of acts already completed. See COMMISSIONER FOR WORKS, BENUE STATE AND ANOR. VS. DEVCON DEVELOPMENT CONSULTANTS LTD. ABD ANOR (1988) 3 NWLR PT. 83 (407) AT (423).

From the four grounds of appeal, the learned Counsel for the Appellant formulated the following three (3) issues for determination. The issues are as follows:-

1. Whether the learned trial Judge was right to make a “restraint order” which was not asked for by the Plaintiff/ Applicant/Respondent.
2. Whether the learned trial Judge was right to grant an interlocutory relief in favour of a party who did not establish any triable issue at the time of his application.
3. Whether the learned trial Judge was right to grant an interlocutory injunctive reliefs in favour of the Plaintiff/ Applicant/Respondent in respect of Acts which had already been done and completed.

The Respondent through his counsel filed his Respondent’s brief and formulated four (4) issues from the four grounds of appeal filed by the Appellant. The issues are as follows:-

1. Whether or not, the Defendant/Appellant’s resort to self help by forcefully sealing the Plaintiff/Respondent Hotel during the pendency of the substantive suit in which possession of the Hotel premises was an Issue was proper.
2. Whether or not, there is triable issue in a Motion which alleges resort to self help by a party who seals up his opponent’s Hotel and commanders property worth Five million Naira during the

pendency of a substantive suit in which possession of the premises is in issue.

3. Whether or not, an order to re-open a sealed-up premises is an injunction against an accomplished act.
4. Whether or not, the grant of an ancillary (injunctive) relief by the trial Court following grant of a main relief is not proper where there is an omnibus prayer on the Motion paper.

This appeal came up for hearing on 16/5/2005, but both parties and their counsel were absent without any excuse being brought to the notice of this court. Non appearance in court may be excused upon proper application and for good and sufficient reason. See OKOIKO vs. ESEDALVE (1974) 3 SC 15. From our record, it has been shown that parties’ counsel have been served with the Hearing Notices, but absent.

By the rules of this Court (Order 6 Rule 9), if Briefs have been filed but at the hearing no party or any legal practitioner appearing for him, appears to present oral argument, the appeal will be deemed as having been argued and will be considered as such. Therefore, Briefs of Arguments having been filed by the respective parties but at the hearing of this appeal, no party or any legal practitioner appearing for him to present oral argument, this appeal will be treated, as, having been argued and will be considered as such. See SANDA vs. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR 379.

There is one main important and most serious issue which needs to be considered first. This issue, is the competence of this appeal before this court. I saw a Notice of Preliminary Objection on this ground filed by the Respondent on 5/7/2000, but due to his absence it was not argued and is not in-co-operated in his Brief of Argument.

On issue No: 1, the Appellant’s contended that the trial Judge was wrong when he made a “restraint order” which was not asked for by the Respondent. On the Brief of Appellant Argument, the learned Counsel for the Appellant submitted that the grant of such an order in the circumstance occasioned a grave mis-carriage of justice. In granting this order, the trial Judge stated that:-

“Although, the Applicant has not asked this order for an order restraining the Respondent, either by himself or other person(s) acting on his behalf, from further molesting the staff, guests and losing-up the Hotel the circumstance of this case warrant the making of such an order…”

The Appellant’s Counsel submitted further that the learned trial Judge justified his decision by placing reliance on the case of Fabunmi vs. Agbe (1985) 16 NSCC (Pt. 1) 322 at 342 and, on Section 32 of the High Court Law Cap 49 Laws of Northern Nigeria, 1963, which enjoins the Court to finally and completely determine all matters in controversy between the parties so that “multiplicity of legal proceedings concerning any of those matters” may be avoided. The learned Counsel, also contended that the proceeding in which the order was made was an interlocutory proceeding and not a final proceeding where issues will be finally and completely decided. And the main aim, according to his submission, of an interlocutory proceeding in the nature of the one before the trial Judge is to maintain the status-quo pending the determination of, the issues submitted for adjudication by the Court. He further contended that, it is an equitable jurisdiction which the Court is called upon to exercise in the light of the particular facts before the Court. In order to enable the Court exercise its equitable jurisdiction, he said, the Applicant must present convincing facts which in themselves vindicate the well laid down guiding principles for granting the injunction. The injunction order, the counsel contended, is not granted to compensate a Plaintiff/Applicant in the interim for merely initiating an action in a Court of Law. The learned Counsel cited the case of African Continental Bank Ltd. & 1 Or. vs. A. O. Awogboro & 1 Or. (1991) 2 NWLR (Pt.176) p.711 at 718, to support this contention.

The Appellant’s counsel further contended that Section 32 of the High Court Law (supra) as well as the case of Fabunmi (supra) relied upon by the learned Trial Judge are subject to the principles of law, that a Court of Law is not a charitable institution which liberally gives to parties what they have neither claimed nor proved. In support of this contention, he cited the case of Ekpenyong vs. Nyong (1975) 2 S.C. p.71 at 80-81 where IBEKWE J.S.C. (as he then was) stated:-

“…We think that, as the reliefs granted by the learned trial Judge were not those sought by the Applicants, he went beyond his jurisdiction when he purported to grant such reliefs. It is trite law that the Court is without the power to award to a claimant that which he did not claim. This principle of law has, time and again, been stated and restated by this Court that it seems to us that th6re is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law but good sense. A Court of law may award less, and not more than what the parties have claimed. A fortiori, the Court should never award that which was never claimed, or pleaded by either party. It should always be born in mind that a Court of law is not charitable institution, its duty, in civil cases, is to render unto everyone according to his proved claim.”

Not only that, in the case of M. A. ENIGBOKAN V. AMERICAN INTERNATIONAL INSURANCE COMPANY (NIG) LTD. (1994) 18B. L.R.C.N. 285 AT 315 The Supreme Court held:-

“…And the principle is also well established in law that a Court must not grant to a party a relief which he has not sought or which is more than he has sought or which is more than he has sought…”

The Counsel urges this court to allow this ground in favour of the Appellant.

Based on the forgoing, the counsel urges the Court to resolve issue No.1 in favour of the Appellant.

On issue No: 2, the Appellant’s contention is that it was wrong for the trial Judge to grant an interlocutory relief (in Prayer No (b) on the Motion paper) in favour of the party who did not establish any triable issue at the time of his application. The counsel on behalf of the Appellant, contended that in an application for interlocutory injunction, the Court must consider:-

(a) Whether the Applicant has a legal right, which he seeks to protect and that he has a good chance of success in the reliefs he is seeking for. The counsel ordered that it is necessary for such Applicant to satisfy the Court that there is a serious issue to be tried.

The learned Counsel cited the following cases to buttress the contention:

1. Obeya Memorial Specialist Hospital vs. A.G. of the Federation & Anor. (1987) 3 NWLR (Pt. 60) 325.
2. Kotoye vs. Central Bank of Nigeria (1989) 1 NWLR (Pt. 89) 419.
3. Oyeyemi vs. Irewole Local Govt. (1993) 1 NWLR (Pt.270) 462.

(b) Whether the balance of convenient will be in favour of the Applicant if the application is granted, i.e. Whether the Applicant will suffer more inconvenience if not granted. On this, the learned Counsel cited the cases of Missin & Ors. vs. Balogun & Anor. (1968) 1 All NLR 318; Kanno vs. Kanno & Ors. (1986) 5 NWLR (Pt. 40) 138 and Ikechukwu vs. Iwugo (1989) 2 NWLR (Pt.101) 99.

(c) Whether damages will be adequate compensation for the Applicant at the end of the litigation. He cited the cases of Abdullahi vs. Gov. of Lagos State (1989) 1 NWLR (Pt.97) 356; Nwanganha & Ors. vs. Military Gov. of Imo State & Ors. (1987) 3 NWLR (Pt.59) 185.

The learned Counsel contended that, at the time of the grant of interlocutory relief order, (directing the Appellant to re-open the Hotel to run the business) there was no any triable issue before the learned trial Judge. For the right of the Respondent to remain as Tenant on the Appellant property have thus, been extinguished bi lapse of time as the contract for Tenancy was entered and commenced on 2/1/95 and was to last for 3 years. The life of the Tenancy expired on 1/1/98. Then the counsel argued that the motion was brought 2 months outside the life span of the Tenancy Agreement having been brought on 4/3/98. The learned Counsel stated that since the Tenancy Agreement which conferred the legal right on the Respondent to remain on the Appellant property have expired at the time the Motion was brought, then there was no serious triable issue before the trial Judge for which the trial Judge could order the Appellant to re-open forth with No: 1, Jacob Damjor street G.R.A., Gboko for the Respondent to run the Hotel business, till the determination on their main suit. The counsel also urge this Court to resolve the Issue No: 2, in favour of the Appellant.

On Issue No: 3, the contention is that the learned trial Judge was wrong to grant interlocutory injunctive relief against acts which had already been done and completed. The counsel submitted that on 15/2/98, the Appellant re-possessed the premises. (The subject property.) Therefore, the act of taking over the premises was done completed on 15/2/98. That on 5/3/98, the Respondent filed an application to the trial Court seeking the Court’s order compelling the Appellant to re-open the premises to enable the Respondent to continue carrying out the Hotel business. The learned Counsel for the Appellant contended that even if the taking over of the premises after expiration of the tenancy by the Appellant was wrong (without conceding), there was no basis for granting such an order, consequently, the grant was wrong since there was a basis for awarding damages to the Respondent at learned of trial. The grant of that order, therefore is not justifiable. He further stated that the Supreme Court has in many cases viewed that, an interlocutory injunction cannot be granted for acts already done. In support of this, he cited… The cases of Comm. For Works, Benue State & Anor. vs. Devcon Development Consultants Ltd. & Anor. (1988) 3 NWLR (Pt.83) 407 at 923; Okafor vs. A.G. (1992) 2 SCNJ (Pt.11) 219 at 235 and Orji vs. Zion Ind. Ltd. (1992) 1 SCNJ 29 at 40-44 as well as Akpa vs. Hameen Habib (1992) 7 SCNJ (Pt.1) 119 at 137, which means a Court in that circumstances cannot restore the status-quo. The counsel, finally urges this Court to resolve all the issues in favour of the Appellant, allow the appeal, and the ruling appealed against be set aside, and dismissed the Motion No: MHC/90m/98.

For the Respondent, it was argued on his own formulated Issues Nos: 1 and 2, (which is Appellant’s Issue No:2) that, what the learned trial Judge did was right due to Appellant’s wrong act in taking law into his own hands by resorting self-help, wherefore the Appellant used thugs to beat and bail out both the staff and guests and sealed-up the Hotel on the Appellant unilateral, subjective, sadistic and erroneous assumption that the life span of the Tenancy Agreement between the Appellant and the Respondent expired. He contended that the suit brought was brought within Tenancy period. He argued that already another head of claim existed in the same suit against the Appellant for unpaid accommodation in respect of chalet No: 205 hired from Respondent by the Appellant and which chalet remained in control of the Appellant up to the time of sealing the Hotel by the Appellant. He defended the trial Court on the ground that the trial Court took the line of action in order to protect the modesty and dignity of the tenant and to prevent Landlord from his might, whims, and caprices to evict the tenant through self-help. That Judiciary always stands against self-help to subdue anarchy and rancor, in society generally. The Respondent argued that, the conduct of the Appellant complained of in Motion No.: MHC/90m/98 in the trial Court was most offensive and amounts to contempt of Court as the conduct was exhibited during pendency of the substantive suit. He further submitted that the Supreme Court has had the cause to condemn the use of self-help by Landlord against Tenant in a number of cases including the recently decided cases, of:

(1) Calabar East Co-operative vs. Ikot (1999) 12 SCNJ 321 at 336.

(2) Ojukwu vs. Govt. of Lagos State (1985) 2 I NWLR (Pt.10) 822.

(3) Sule vs. Nigerian Cotton Board (1985) 2 NWLR (Pt.5) 17.

The learned Counsel for the Respondent submitted that since the Appellant refused to comply with the trial Court order and refuse to re-open the premises Lovebet Hotel, Gboko, but instead, impounded and converted the furniture’s and other properties therein, and continue using them up to date, the Appellant is now neck-deep in contempt and shows the act of no respect for the Judicial process, he cannot, therefore enjoy this appellate Court sympathy. The counsel cited to support this contention the cases of Gov. of Lagos State vs. Ojukwu (1980) 1 NWLR (Pt.18) 621 and Military Gov. of Lagos State vs. Afolabi (1991) 6 NWLR (Pt.196) 221 C.A.

The Counsel’s defended the trial Court’s order on the grounds that the Appellant’s resort to self-help was improper, barbaric and contemptuous of the Trial Court, and as such the trial court was right in ordering the re-opening of the Respondent’s Hotel sealing up by such a barbaric act. He submitted that the issue of forceful sealing up the Respondent Hotel, taking over Respondent’s property worth several millions of Naira, and creating hardship to a peaceful and law ablding tenant, all during the pendency of a suit on the matter, raises triable issue which the Court determined in Motion No: MHC/90m/98. He urges this appeal to be dismissed and uphold the ruling of the trial Court on this issues.

On Issue No: 3, which is Appellant’s Issue No: 3, the learned Counsel for the Respondent submitted that, the Appellant misconceived/misconstrues the order. The order was a positive order to re-open but not an injunctive order, to prevent the sealing of what has already been completely sealed. The Respondent’s counsel added that both in common sense and in law reopening of a sealed-up premises cannot attract injunctive conduct but only attract a positive act of re-opening: what has, in the view of the trial Court, been wrongfully sealed-up. The argument of the Appellant on his issue No: 3, said the learned Counsel, be discountenanced having been misconstrues the order.

In respond to the Appellant’s argument, that the Respondent should allow the Hotel remain sealed up and the business thereof in operative, the Respondent’s counsel countered that such a submission is/was made malified as every litigant is required to mitigate his own damages and to be prudent and vigilant in his conduct whiich is the basis of maxim that. “Equity helps the vigilant”. The counsel brought Motion No:MHC/90m/98 to re-open the Hotel business and therefore mitigates his loss, and the trial Court rightly, in his view, up held that attempt to mitigate damages by ordering the Appellant to re-open the said Hotel forthwith. On the Appellant contention that the Respondent would have remained positive, without seeking to have the Hotel re-opened, supply because the trial Court may have in the end compensated him in damages he claimed, the Respondent’s Counsel argued that, the Appellant already had a pending suit No: GHC/108/96 before a Gboko High Court and did not wait lawfully to reap compensation for damages through the reliefs he claimed therein, but went out of his way to use barbaric means of that help. The Respondent’s Counsel submitted that the authorities against granting of an injunction order on accomplished acts cited by the Appellant are not applicable in this case because according to him, the facts in this, case do not show the grant of an injunction on an accomplished act, but instead, a grant of a mandatory order requiring one to positively act; i.e. to re-open a sealed up Hotel. He urges this Court, therefore, to discountenanced the Appellant’s Arguments on this issue and dismiss the appeal, for being devoid of merit.

On Issue No: 4, which is Appellant Issue No: 1, the Respondent’s Counsel submitted that since the Respondent’s Motion before the trial Court contains an omnibus Prayer, the trial Court could under the law make and infact did make the consequential and ancillary order No: 2, on the ruling. He contended also that the order against the Appellant to forth-with “re-open Lovebet Hotel for the business of the Respondent to flow till the determination of the substantive suit,” was/is a substantive relief whose probable consequential order will be to prevent a re-occurrence of deprecated conduct if and after the main order is complied with. The trial Court, he said, was right in manning the second order as a consequential one to give effect, to main order of forth-with re-opening the said Hotel and allow business to flow, and the trial Court is well covered by the omnibus Prayer on the Motion paper, in making such a consequential order. He submitted that the exercise of judicial discretion by the trial Court to grant the said consequential order(s) is also supported by Section 32 of the High Court Law (supra) applicable to Benue State as well as the Supreme Court’s view in Fabunmi vs. Agbe case (supra).

The Respondent’s Counsel on behalf of the Respondent, urges this appeal to be dismissed in its entirety for want of merit and that the Orders of the trial Court in Motion No: MHC/90m/98 be affirmed.

It is common ground that what is being criticized, or challenged, and the subject matter of appeal in this case, is the exercise of the discretionary power of the learned trial Judge, exercised in favour of granting orders, by granting the reliefs in the ruling appeal against delivered in respect of the Hotel in Gboko, known as Lovebet Hotel situated at No: 1, Jacob Damjor street, G.R.A., which the Respondent had been operating since 1985 after a tenancy Agreement between the two parties. The Notice of Appeal with four (4) grounds was filed on 28th day of October, 1998, against the ruling delivered on 28th March, 1998 in respect of Motion No: MHC/90m/98. The Notice of Appeal was not filed timously, and no leave of either the trial Court or this Court of Appeal was obtained, which is a condition precedent to the filing of the appeal out of time. This is deemed to be imperative as the entire appeal is against the exercise of the discretion of the trial Court.

The right to appeal is not discretionary or a product of common law, but statutory. It is indeed constitutional.

The relevant provisions relating to appeals and leave to appeal is Order 3 Rule 2 of the Court of Appeal Rules, 1981.

Generally speaking, an appeal to the Court of Appeal is either as of right or with the leave of Court, according to Section 239 or 240 of the 1979 Constitution. Section 240 (1) states that:-

“Subject to the provisions of Section 239 of the constitution, an appeal shall lie from decisions of the High Court to the Court of Appeal with leave of that High Court or the Court of Appeal.”

Section 239(1)(a) and (b) states that:-

“An appeal shall lie from decisions of the High court to the Court of Appeal as of right in the following cases:

(a) Final decision in any civil or Criminal Proceedings before the High Court sitting at first instance,

(b) Where the ground of appeal involves question of law alone, decision in any civil or Criminal Proceedings.

See:

(1) F.B.N. Plc. Vs. Fasher (2000) 6 NWLR (Pt.662) 573;

(2) Tecno Mech. (Nig) Ltd. vs. Ogunbayo (2000) 14 NWLR (Pt. 639) 150;

(3) Total Intern. Ltd. vs. Awogboro (1994) 4 NWLR (Pt.337) 147;

(4) Adamu vs. A.G. Borno State (1996) 8 NWLR (Pt.465) 203;

(5) Elendo vs. Ekwoaba (1995) 3 NWLR (Pt.386) 704.

Similarly, where the grounds of appeal in a Notice of Appeal against an interlocutory decision of the High Court raises question of law, there is no need for leave of Court to be s6ught or obtained before Notice of Appeal is filed, see Adetoma vs. Edet (2001) 3 NWLR (Pt. 699) 186; and Nwabueze vs. Nwora (2005) 8 NWLR (Pt. 926) 1 at 18.

It should be noted that an appeal against an interlocutory decision must be one with leave of the Court, where the ground of appeal are based on mixed law and facts or facts alone. Then, what is the distinction between a final decision and an interlocutory decision? It is well settled that in considering whether a decision is interlocutory or a final one the determining factor is whether the judgment or order has finally disposed of the rights of the parties. If it does, then the order is final order. If it does not, then it is interlocutory. See Akinsanya vs. U.B.A. Ltd. (1986) 4 NWLR (Pt.35) 273; and Universal Trust Bank Plc. & Ors. vs. Odofin (2001) 8 NWLR (Pt. 715) 296 at 301.

The decision of the trial Court following the Motion No: MHC/90m/98 is an interlocutory decision made pending determination of the substantive suit. Appeal against such interlocutory matter therefore can only be important if leave is sought and obtained from either the trial Court or the Court of Appeal. An interlocutory orders made following the said Motion are orders made between the commencement of an action, in this case, suit No: MHC/158/96, and its final determination hence the rights of the parties, therefore, have not finally been disposed of. The order shall be discharged when the main suit is determined.

In this appeal, it is the exercise of the discretion of the trial Court in favour of the Respondent (in granting the orders), that is the subject of complaint, and the grounds of appeal emanating therefore cannot be based on law alone no matter how it is drafted or couched to make it appear like a ground of law. The grounds have to be considered with the particulars to decided whether it is a ground of law or fact or mixed law and fact. See Ogbechie vs. Onochie (1986) 2 NWLR (Pt. 23) 484.

However, where there is an exercise of a Court’s discretion, the impression would be that the principles, and the way and manner in which a Court will exercise its discretion in a particular case is a question of fact, and whether or not, the Judge exercised the discretion judicially or judiciously is a question of mixed law and fact. The latter becomes applicable in this case to the way and manner the learned trial Judge exercised his discretion in granting the Motion.

Where the appeal here is of a mixed of law and fact, leave of Court must be sought and obtained from the trial Court or the Court of Appeal in accordance with the constitutional provision since it is against an interlocutory order of the lower Court. See Acqua Ltd. vs. Ondo State Sport Council (1988) 4 NWLR 622. In this case, the Supreme Court decided that Section 242(1) of the constitution 1999 which creates rights of appeal to Court of Appeal is meant to cover appeal in interlocutory decision of the High Court. Failure of the Appellant to take this step could render the appeal incompetent and must be struck out.

It is settled law also that where any proceedings are begun other than as provided by the rules such proceedings are incompetent. See Saleh vs. Monguno (2003) 1 NWLR (Pt.801) at 221.

I have carefully gone through all the grounds of appeal formulated in the appeal against the orders made by the trial Court and in my view though they were drafted as grounds of law, these grounds are the grounds that depict an error in law and in fact, i.e. a mixture of law and fact. Ground 1 is of fact though tagged error in law, but what is quoted from judgment makes it a mixture of error of law and fact. Ground 2 is referred as error in law, but is purely of fact, while the particulars, some are conclusion and some are argumentative. Ground 3 is like ground 2. Ground 4 is also like grounds 2 and 3. Therefore I cannot and, I find it difficult to single out a ground of appeal which does not include a mixture of law and fact. They are affected by default of not obtaining leave which have therefore rendered them incompetent. By virtue of the provisions of Order 3 Rule 2(7) of the Court of Appeal Rules (supra) I strike out all grounds of appeal as incompetent.

As stated earlier, this appeal is against an interlocutory decision made on 28/3/98. The appeal against the decision was filed 28/10/98. Computing the period of delivering the interlocutory decision which is 28/3/98 and the time the appeal was filed which is 28/10/98, it seems that the appeal was filed over 6 months after the ruling appealed against was delivered by the trial Court.

Section 25 (2)(a) of the Court of Appeal Act 1976 (as amended) prescribed the period for bringing an appeal, i.e. giving Notice of Appeal or Notice of Application for leave to appeal in civil cause and matters. It provides the period within which appeal could be made as follows:-

(i) Fourteen days where the appeal is against an interlocutory decision; and

(ii) Three months, where the appeal is against a final decision.

In any of the two situations mentioned above, a person wishing to appeal outside the stated statutory periods must first seek and obtain leave. It is a condition precedent to the validity of such appeal.

Having filed the appeal over six months after the expiration of the statutory period, the Appellant obviously needs leave of this Court before filing his appeal. This is a condition precedent to the validity of this appeal.

The Appellant in his Brief of Argument filed on 7/2/2000 on page 2 paragraph 1.06 made mentioned that he sought leave of the trial Court which leave was granted to him on 26/9/98. Neither the record of the lower Court submitted to this Court nor the record of this Court did contain any evidence that leave was granted to him to this Court. However, I have however spotted on Motion appealed dated 10th July, 2001 and filed in this court on 24/7/2001 in which the Appellant prayed for the following orders:-

(i) For extension of time within which to apply for leave to appeal against the ruling of the Hon. Justice E. N. Kpojime of Benue State High Court in suit No: MHC/90m/98 delivered on 20/3/98.

(ii) Leave to appeal against the ruling.

(iii) Extension of time to appeal against the ruling.

(iv) An Order that the record of appeal in Appeal No: CA/J/14/2000 already submitted to this Court and now before this Court, Appellant’s Brief of Argument filed on his behalf on 7/3/2000 and the Respondent’s Brief of Argument filed on 24/3/2000 all before this Hon. Court, to be claimed properly filed.

Records of this Court however showed that the Motion was struck out on 27/5/2005 for lack of diligent prosecution. By the provisions of Order 4 Rule 2 (supra) when time is so extended a copy of the order granting such extension of time shall he annexed to the Notice of Appeal. Subsequently to other Motion was filed and moved seeking for similar reliefs by the Appellant. The conclusion I reach at this stage is that the instant appeal was filed out of time without leave of this Court sought and obtained. In this circumstances this appeal is incompetent and I accordingly so hold. It is accordingly struck out under Order 3 Rule 2 (7) of the Court of Appeal Rules 1981.

It is the admonition of the Supreme Court that in a situation like the one under consideration, this lower Court is obliged to consider the case on its merit in the event that the Supreme Court finds fault with reasoning and conclusion of this Court. But I must point out that in this particular instance, that exercise, as observed by ODUYEMI J.C.A in National Assembly vs. President (2003) 9 NWLR (Pt. 824) 104 at 143, would amount to making a case for the Appellant which he did not make for itself.

In final conclusion, the appeal having been adjudged incompetent due to absence of leave, it must be struck out and it is hereby so struck out. Cost assessed at N10,000.00 is hereby awarded against the Appellant and in favour of the Respondent.

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Other Citations: (2005)LCN/1778(CA)

Mrs. Comfort Olufunmilayo Asaboro & Anor V. Pan Ocean Oil Corporation (Nig) Ltd & Anor (2005)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

This appeal is against the judgment of Umukoro J. of the Delta State High Court, then of Oghara Judicial Division.

The appellants were the Plaintiffs and the Respondents the Defendants in the Court below.

Endorsed on the Writ of Summons dated 7th July, 1994, are the following claims:

“(1) A declaration that the Plaintiffs are entitled to the Certificate of Occupancy/Customary right of Occupancy over those pieces or parcels of land lying and situate at Oghara along Benin/Sapele Road, Ethiope West Local Government Area within the Jurisdiction of this Honourable Court, the dimension and abuttal of which are more particularly described and delineated in Pink in the Survey Plan to be filed in this action.

(2) The sum of N200,000,000.00 (Two Hundred Million Naira) damages and/or compensation for trespass, destruction of Plaintiffs rubber trees in the Plantation on the said land and extensive damage of the land by oil spillage arising from Defendants’ drilling operations on the said land.

(3) Perpetual injunction restraining the Defendants their servants, agents and/or privies from further entering into the said land or doing anything thereon which is inconsistence (sic) with the plaintiffs’ exclusive right to the land.”

Pleadings were duly filed and exchanged. The operative pleadings on which the matter was tried were the further amended Statement of claim and the amended Statement of Defence.

Concluding its reserved judgment dated 20/8/98, the Court below held, inter alia:

“Accordingly, this suit instituted by Writ of Summons on 7/7/94 and amplified by further amended Statement of Claim on 20/1/97 and deemed properly filed and served on 24/1/97 by order of Court against the defendants jointly and severally shall stand dismissed.”

Aggrieved by the judgment, the Plaintiff now appellant, appealed against same on five grounds.

In view of the issues supposedly distilled from them, I deem it appropriate to reproduce the grounds of appeal, though without particulars where applicable.

“GROUNDS OF APPEAL

1. The learned trial Judge misdirected himself in law, in holding that the period for bringing action to claim for fair and adequate compensation for damage of surface rights under the Petroleum Act Cap 350 Laws of the Federation, 1990 is twelve years as provided under the Limitation Laws of Delta State.
2. The Learned trial Judge erred in holding that the action is statute barred when the injury complained of is a continuous one.
3. The learned trial Judge erred in Law, in dismissing the action after holding that the Plaintiffs/Appellants have no locus to institute the action.
4. The learned trial Judge erred in rejecting the Valuation Report (Exhibit D) as sufficient proof of the amount stated therein as loss sustained by the Plaintiffs.
5. The judgment is against the weight of evidence.”

In compliance with the Rules of the Court, the parties by their respective Counsel, filed and exchanged briefs of argument with the appellants filing an appellant’s Reply Brief.

In their briefs, the appellants framed five issues for determination but in substance and even in form the said issues are mere reproduction of the fire grounds of appeal. They are hereunder reproduced:

“(a) Whether the learned trial Judge was right to hold that the period for bringing an action to claim for fair and adequate compensation for damages to surface rights under the Petroleum Act Cap 350 Laws of the Federation, 1990 is twelve years as provided under the Limitation Laws applicable in Delta State.

(b) Whether the learned trial Judge was right in holding that the action is statute barred when the injury complained about was a continuous one.

(c) Whether the learned trial Judge was right in holding that the Plaintiffs/ Appellants in this case lacked the Locus standi to prosecute the action.

(d) Whether the learned trial Judge was right in rejecting the valuation Report (Exhibit D) as insufficient proof of the amount stated therein as loss sustained by the Plaintiffs.

(e) Whether the judgment is not against the weight of evidence.”

In the Respondents’ brief, the following three issues were raised for the Court to resolve:

“ISSUE 1:

Whether the learned trial Judge was right in holding that the action is statute barred having been commenced after twelve years as required by Law Ground 1 & 2.

ISSUE II:

Whether the learned trial Judge was right in holding that the appellants in this case lacked the requisite locus standi to prosecute this action.

GROUNDS 3.

ISSUE III

Whether the learned trial Judge was right in rejecting the Valuation Report

(i.e. Exhibit ‘D’).

GROUNDS 4.

At the hearing of the appeal, learned Counsel for the appellant adopted and relied on the appellant’s brief dated 14/4/03 and deemed filed on 1/7/03 as well as the reply brief dated 12/1/05 and deemed filed on 18/05/05. Learned Counsel highlighted some issues in his briefs and based on the argument therein contained, he urged us to allow the appeal.

Learned Counsel for the Respondents adopted the Respondent’s Brief dated 27/2/04 and deemed filed on 22/9/04. After emphasizing some points in the brief, he urged us to dismiss the appeal based on the argument in his brief.

In his brief of argument, learned Counsel for the appellant, dealing with issues 1 and 2 together, conceded that the findings of the lower Court with regards to the date of entry into the land by the Respondent and the date of institution of the action are based on the evidence before the Court. He however impugned the lower Court’s conclusion that the suit is statute – barred and said the conclusion was reached without consideration of the main claim before the trial Court. He contended that the appellants did not seek to recover land and submitted that the limitation law did not apply.

It was submitted that the conclusion that the suit was statute -barred based on section 4, 5 and 12 of the Limitation Law was erroneous as none of the said provisions of the Law deals with claims for compensation especially if such compensation is payable by virtue of mandatory provision of a statute. Counsel referred to Shell Petroleum Development Company v. Farah & 7 Ors (1995) 3 NWLR (Pt.382) 148 at 186, and argued that in the absence of such provision it was wrong for the Court below to import a period of limitation into the provision of the Petroleum Act or regulation there under made. It was further argued for the appellant that while the date of initial entry was not in dispute pleadings and evidence indicate a gradual and systematic periodic expansion by the Respondents into areas not previously affected by the initial entry.

Learned Counsel argued that even if the limitation Law is applicable, it could not be applicable to the acts of the respondent committed in 1994.

According to learned Counsel, the claim is for mandatory compensation based on damage to the surface right of the land and not for entry to the land, which is synonymous with trespass. It was contended for the appellant that the acts complained of by the appellants were continuous and that until there had been entry, the subsequent damage and a refusal to pay fair and adequate compensation the cause of action did not accrue and that the cause of action in respect of the 1994 license did not accrue until after April, 1994 and the action commenced in July, 1994 can not be said to be statute-barred.

On a determination of whether or not an action is statute-barred, Counsel referred us to the following cases:

Julius Berger (Nig) Plc & Anor v. Omogui (2001) 15 NWLR (Pt.736) 401 art (sic) 417-9.

Mohammed v. Military Admin. Of Plateau State (2001) 16 NWLR (Pt.740) 524 at 545.16 (sic).

Learned Counsel urged us to resolve issues 1 & 2 in favour of the appellants.

In issue 3 on Locus standi, it was submitted for the appellant that the case has nothing to do with the administration of the estate of Late Joseph Asaboro and that the Writ of Summons was not specially endorsed to the effect that the 1st appellant was prosecuting the case as an administratrix of the said estate.

It was argued that regardless of pleadings the 1st appellant instituted and conducted the case in her personal capacity, as also is the case with the 2nd appellant.

Counsel argued that the case of Jeddo v. Imiko (1972) 1 All NLR 260 relied on by the trial Court is inapplicable as the 1st appellant did not endorse the Writ as administratrix. He relied on Stebbings v. Hoist And Co. Ltd (1953) 1 WLR 603 where a widow endorsed the Writ as “Widow and administratrix” when she had not obtained letters of administration and the Court held the Writ valid as the endorsement described only the Plaintiff’s personal status and not the capacity in which she bought the action. He relied on Bowler v. John Mowlem & Co (1954) 1 WLR 1445.

Learned Counsel referred to paragraphs 8 and 9 of his pleading and argued that the claim that the 1st appellant was appointed as administratrix of the estate of her late husband and that she would rely on the letter of administration is not the sole ground on which she instituted the action as she also pleaded that she is a widow of late Joseph Asaboro. Counsel cited Alao v. Kure & Anor (2000) 9 NWLR (Pt.672) 523 and said that averment on which no evidence is led is deemed abandoned or in the alternative and as held by the Court below the 1st appellant failed to prove her claimed status by not tendering the letters of administration.

Counsel however, argued that the case did not rest on the abandoned averments in the pleading, and that the conclusion of the trial Court that the case would fail for lack of evidence on that averment is perverse. He submitted that the 1st appellant, as a widow of a man who died intestate, can maintain an action in her capacity as a widow to protect the estate of her deceased husband.

He relied on Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 740 for a liberal interpretation of the expression “locus standi”. Counsel referred to Lawal v. Sulami & Anor (2002) NWLR (Pt.752) 687 at 713 to buttress his contention that all a litigant has to do to establish locus standi is to show that he has sufficient legal interest in seeking redress in Court and with reference to Ovie- Whysky v. Olawoyin (1983) 6 NWLR 156 at 171 – he stated that sufficiency of interest is a matter to be determined on the facts and circumstances of each case. The cases of T. Sufanu & Sons v. Animashilan & 3 Ors (2000) 14 NWLR (Pt.688) 650 at 664 and United Nigeria Company Limited v. Nahaman & 3 Ors (2000) 9 NWLR (Pt.611) 177 at 189 were relied on for the submissions that a member of the land owing family can bring an action to protect the property from waste and that an individual who has a vested interest in a property can institute an action to preserve the property.

Ogbuchi v. governor of Imo State (1995) 9 NWLR (Pt. 417) 53 at 82-84- 89 and Guda & 2 Ors v. Kitta (1999) 12 NWLR (Pt.629) 21 at 47 were cited as authorities for the distinction between two Judicially recognized classes of right – primary right and secondary rights, the latter existing to protect the former. Still on the issue of locus standi, Counsel argued that the 2nd appellant being the owner in possession of the rubber trees on the area affected by the operation of the Respondents has sufficient standing to initiate this action for even squatters and trespassers in possession can successfully maintain action in trespass. He relied on the case of Oyakonghan v. Amadi (2000) 5 NWLR (Pt.658) 625. It was further argued for the appellants that the 2nd appellants never acted or claimed to act as executor or administrator of the estate, and if the 1st appellant and Chief Owolabi are regarded as executors de son tort for failure to produce the letters of administration the contract between them and the 2nd appellant would not be adversely affected unless the same is tainted in illegality as was decided in Bank of West Africa v. Rickett (1959) NRNLR 125 at 132- 134, nor does one who knowingly receives a chattel from an executor de son tort become one, for which he relied on Paul v. Simpson (1846) 9 QB 365. Counsel urged the Court to resolve the issue of locus standi in favour of the appellants.

In issue 4, learned Counsel referred to the finding of the trial Court that the loss of profit for 22 years and the loss for unexpired term calculated to be N39,319.35, was not proved and contended that the Court should have awarded the sum of N49, 296,022.00 which was established in evidence of PW4.

He relied on NBC Plc v. Borgundu (1999) 2 NWLR (Pt.591) 408 at 430. On the claim for N300,000,000.00 damages in the pleading and the sum of N44.4 as per the summary of the appellants’ claims at page 9 of exhibit D. He said the PW5 gave evidence that the compensation payable as at 6/1/95 was N49,296,022. He referred to NBC Plc v. Borgundu (supra) and Akanni v. Makanju (1978) 11 & 12 SC 1 for the contention that a Court may award less but not more than what is claimed as damages claimed were at large.

On the sum of N4,481,450.00 claimed as the valuer’s professional fees, Counsel submitted the fees are payable as damages because they arose from avoidable acts of the Respondents. He urged the Court to assess and award damages in favour of the appellant.

Issue 5 is said to encompass ground 1-5 and in respect of the issue, Counsel adopted and relied on his argument in support of issues Nos 1 & 2, 3 and 4. Learned Counsel referred to the evidence of DW, and said the contradiction as to the existence of rubber plantation on the land was enough for the Court to award punitive damages against the Respondents. He urged the Court to resolve issue 5 in favour of the appellant. He urged the Court to allow the appeal.

In issue one on the statute of limitation, learned Counsel for the Respondents referred to sections 4, 6 and 12 of the Limitation Law, Cap 89 vol. IV Laws of Bendel State 1976 as applicable in Delta State and argued that the action is statute-barred as the cause of action accrued in 1971 and the action was commenced 23 years later (on 7/7/94). On the authority of Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1 he said the Court should look at the writ of summons and the statement of claim to determine the period of limitation. He referred to Eboigbe vs. NNPC for his argument that time started to run for the appellants when the cause of action accrued in 1971; and cited Odedekun Vs. Hassan (1997) 12 NWLR (Pt.531) 56 and submitted that any right that accrued to the Appellants were completely extinguished at the expiration of 12 years from the accrual of such rights. Counsel submitted that the period of limitation is designed to avoid a situation where a plaintiff can commence an action long after human memory had faded. He relied on National Universities Commission Vs. Olapade Olatunji Oluwo & 5 Ors (2001) 3 NWLR (Pt.699) 90 at 108. He urged the Court to resolve the issue in favour of the Respondents.

In issue II on the locus standi, Counsel said that a statement of claim supercedes the writ of summons. He referred to the further amended statement of claim and said the capacity in which the 1st appellant prosecuted the case was endorsed thereon as “Mrs. Comfort Olafunmilayo Asaboro (sole surviving Administratrix of the estate of Late Joseph Asaboro)”. He referred to Jeddo v. Imiko (1972) 1 All NLR 260 and argued that the 1st Appellant who had no letters of administration lacked the capacity to institute the action.

In reference to Adeyemi v. Olajunmi (1994) 2 NWLR (Pt.327) 500. Counsel said the 1st appellant has not proved her claimed source of right to sue.

Counsel referred to the appellants counsel’s argument that a widow can institute an action to protect the property of her deceased husband, but submitted that a party must be consistent in his case before the lower Court and in appeal, both in the pleadings and evidence.

He relied on Oredoyin v. Arowolo (1984) 4 NWLR (Pt.114) 172, Edebiri v. Edebiri (1997) 4 NWLR (Pt.498) 165 at 174. Learned contended that the 1st appellant fought the case not in her personal capacity nor as a family representative but as the Administratrix of the estate of Late Joseph Asaboro and as the lower Court held “on averment in pleading is not tantamount to evidence and cannot be so construed as such. It has to be proved or established by evidence subject, however, to any admission made by the other party in his own pleadings in respect thereof”. It was submitted on behalf of the Respondents that having lost the motion in this Court to admit further evidence consisting of letter of Administration granted in 9/5/74 and Document dated 1/7/99 with reference No PDT/163/98 issued by the probate Registrar High Court of Justice, Asaba, Delta State, the appellants cannot now reopen the issue. The case of John Andoy Sons & Co. Ltd v. NCR 1 (1997) 3 NWLR (Pt.491) 1 in which the Supreme Court per Wali JSC held “Once an issue or issues have been raised and determined by the Court between the litigating parties, the Court becomes functus officio to either direct or allow the parties to reopen the same issue before it for re-litigation” was cited and relied on by counsel for the Respondents.

Based on the above, it was contended for the Respondent that findings of the learned trial Judge to the effect that the 1st Appellant’s reliance on the said Letters of Administration has not been proved and that failure to prove same was fatal cannot be faulted.

In issue III on the rejection of the Valuation Report exhibit “D” counsel for the Respondents submitted that the alleged expert evidence of PW4 is not in support of the Appellants’ case as same was at variance with it. Though unchallenged and uncontroverted the evidence of PW4 does not became inevitably acceptable merely because it is an expert evidence, which has not been controverted or challenged. Counsel relied on A-G of Oyo State Vs. Fairlakes Hotels (1989) 5 NWLR (Pt.121) 255 and said the expert evidence could be rejected if there is reason to do so. Counsel relied also on Ogiale Vs. Shell Petroleum Development Company Nigerian Limited (1979) 1 NWLR (Pt.430) 148 on opinion evidence by an expert. Counsel referred to the finding of the Court below that the 22 years in Exhibit D had no relation to any specific period from which it was determined, and said the Court was right when it held that the loss of profit for 22 years and loss of profit for unexpired term calculated to be N39,319,351.00 was not proved.

It was further argued for the Respondent that exhibit D was based on a survey plan, which was not tendered before the trial Court.

The plan before the Court exhibits A was, as found by the trial Court, produced on 18/9/93 whereas the valuation report was produced on 6/1/95. It was further argued that there is a variation between the survey plan tendered by the Plaintiff and the survey plan shown to the PW4. The cases of Rotimi Vs. Maguire (1974) 11 SC 133 at 152 and Oseyimo Vs. Benin Rubber Production Market (1997) 7 SCNJ 365 at 381 lines 20-30 were relied on and the Court urged to hold that exh. D has no probative value in the case. We were urged to dismiss the appeal on the grounds that the trial Court held that the Appellants’ case had no merit that the action was statute barred, that the Appellants’ had no locus standi to prosecute the case and that Exh. D was fraught with defects and was rightly rejected.

In the Appellants’ Reply Brief deemed filed on 18/5/05, it was contended that the claim is not limited to 1971, but covers the period between 1971 and the date of issue of the writ of summons, as the entry and occupation of the Appellants’ land by the Respondents occurred at different times from 1971 to 1997. Counsel referred to paragraph 20 (d) of the further amended statement of claim and said the claim in paragraph 20 (d) was for entry and occupation. The N300m claimed in paragraph 20 (b) and (c) was compensation for damages to or destruction of rubber trees.

He referred to paragraph 20 of the Respondents extant pleadings and the evidence of PW5 and DW1 (See pages 4 and 5 of the Appellants’ brief) and said the destruction of the rubber trees was not predicated on the date of entry and that the destruction occurred at various times between 1994 and 1997.

On the capacity in which the 1st Appellant commenced and prosecuted the case counsel argued that the unauthorized insertion of the endorsement tending to show that the 1st Appellant was suing as an administratrix on some of the processes filed cannot validly change her status as shown on the writ of summons which was never amended. He argued that Jeddo v. Imiko (supra) is not applicable. On the issue of estoppel, it was contended that since no appeal was filed against the ruling of the Court rejecting the letters of administration and the issues for determination did not relate to letters of administration, there was no valid reason to include the issue relating to letters of administration in the Respondents’ brief. Counsel argued that the finding of the lower Court that the 1st Appellant sued as an administratrix is argued that the finding of the lower Court that the 1st Appellant sued as an administratrix is in conflict with the finding that the cause of the Plaintiffs’ action is for monetary compensation.

Counsel argued that the argument of a party at the trial Court need not necessarily be the same with the argument on appeal as was held in Jadesimi v. Okotie-Eboh & Ors (19996) 2 NWLR (Pt.429) 128 at 144; Ogunsola v NICON (1996) 1 NWLR (Pt.423) 126 at 138. It was argued for the appellants that proffering new argument on issues that had been raised in the lower Court is permissible and did not require leave and does not amount to raising new issues on appeal.

On Exhs D and A, learned Counsel said the survey plan referred to in the Valuation Report Exh. D was tendered on the application of Counsel for the Respondents and marked Exh. E. On the other hand, Exh. A is the litigation survey plan made and filed along with the appellants’ pleading. It is not the same as Exh. E dated 13/12/94. He said Exh. A was dated 18/9/95 and not 18/9/93. He said the Court never made a finding that Exh A was produced on 18/9/93. The Court found that Exh. A was produced on 18/9/95 whereas the Valuation Report was produced on 6/1/95. Counsel argued that the Court did not appreciate that Exh. E prepared on 13/2/94 was the plan mentioned in Exh. D and the Valuation Report prepared on 6/1/95. He argued that there is no conflict between the Valuation Report and the survey plan mentioned therein. He urged us to hold that the arguments in the Respondents’ brief lack merit and to allow the appeal.

Grounds of appeal are not the same as issues arising there from for determination. In an appeal, the issues to be determined are not the same as the grounds of Appeal. Whereas the grounds of appeal accentuate the defects in the judgment sought to be set aside, the issues for determination accentuate the crux of the reasons encompassing one or more ground of appeal. See Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514 at 516.

Learned Counsel for the appellants filed five grounds of appeal. The five grounds are in form of statements. In formulating his five issues for determination, learned Counsel simply repeated his five grounds of appeal though not as statements, but as questions.

For instance in ground one, the complaint is that “the learned trial Judge misdirected himself in law in holding that the period for bringing action to claim for fair and adequate compensation for damages to surface rights under the Petroleum Act Cap 350 Laws of the Federation, 1990 is twelve years as provided under the Limitation Law of Delta State.”

Issue I supposedly framed from ground 1 above questions “whether the learned trial Judge was right to hold that the period for bringing an action to claim for fair and adequate compensation for damages to surface right under the Petroluem Act Cap 350 Laws of the Federation 1990 is twelve years as provided under the Limitation Laws applicable in delta State.” In ground 5 the appellant complained that “the judgment is against the weight of evidence.” In issue 5 distilled from the above ground the appellant queried “whether the judgment is not against the weight of evidence.” In humble view, the grounds of appeal and the issues framed therefrom are the same notwithstanding the fact that one are in form of statements and the other in form of questions. An issue for determination is a short question raised against one or more grounds of appeal and are meant to be a guide to the arguments and submissions to be advanced in support of the grounds of appeal.

See Angyu & Anor v. Alhaji Malami & Anor (1992) 9 NWLR (Pt.264) 240; Chief Imonikhe & Anor Vs. A-G Bendel State & Ors (1992) 6 NWLR (Pt.248) 396; Adejumo & Ors Vs. Ayantegbe (1989) 3 NWLR (Pt.110) 417.

The issues as formulated, being merely a re-cast of the grounds of appeal cannot be a guide to the arguments and submission to be advanced in support of the grounds of appeal, for the grounds of appeal per se cannot support themselves. They stand or full on the argument and submission on issues raised from them. Issue 5 said to arise from grounds 1 – 5 constitutes a proliferation of issues as issues had been frame of each of those grounds.

In effect the appellant framed no issues and his argument is directed at his grounds of appeal, which should never be the case.

I have considered the three issues distilled by the Respondents from the grounds of appeal. It is my view that issues 1 & 2 can dispose of the appeal and I will rely on them to determine this appeal.

With regards to issue 1 on whether or not the statute of limitation applies to the appellants’ claim I have scrutinized the further amended statement of claim. Paragraph 12 thereof offers a guide as to when the cause of action accrued. It states “12 sometime in 1971, the 1st defendant and without the consent and authority of the 1st Plaintiff and in total disregard of the terms upon which an oil company may enter private land under an oil Mining lease or license, unlawfully entered the Plaintiff’s rubber estate, feeling, bulldozing and clearing the plaintiffs’ rubber trees in the estate.

…Subsequently, the 2nd Defendant was engaged by the 1st Defendant to come upon the land and together they carried on drilling operation therein also without the authority and consent of the plaintiffs and also without paying and or tendering any compensation to plaintiff.”

The claims in paragraph 20 (c) (d) and (e) of the further amended statement of claim arose, without doubt, from the Respondents alleged unlawful entry “sometime in 1971” Though the N200M in paragraph 20 (d) relates to the defendants refusal to comply with the mandatory requirements of the Petroleum Drilling and Production Regulations “from 1971 to date,” the right to the claim accrued in 1971 and this is not affected by the Respondents’ alleged refusal to pay compensation from 1971 to date.

A cause of action is a fact or set of facts which gives a person a right to judicial relief. It consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. See Adogom Vs. Aina (1964) 1 All ULR 127, Adimora Vs. Ajufo (1988) 3 NWLR (Pt.8) 1; Thomas Vs. Olufosoye (1996) 5 NWLR (Pt.18) 669. From the further amended pleading the alleged unlawful entry and the consequent destruction for which the respondents refused to pay fair and adequate compensation occurred in 1971. In other words, the appellants right to institute the action accrued in 1971.

There can be no dispute as to the date the appellant commenced the action. The Writ of Summons on page 1 of the Records of Appeal is dated 7th July, 1994, so the action was commenced on 7/7/94 whereas the cause of action accrued “sometime in 1971” a period of 23 years before the action was instituted.

Against the above back ground the appellants argued with heat that their claim was one made and persecuted under the common law or for the recovery of a specific sum fixed by statute. It was emphasized that the appellants did not seek to recover any land from the respondents. It was argued that none of sections 4, 5, 6 and 12 of the limitation Law Cap 89 Vol. IV Laws of Bendel State 1976 as applicable in Delta State prescribing a period of 12 for an acting relating to land is applicable to the appellants case.

The question is what is the basis of the appellants claim? Is it not a claim relating to land? There was an alleged unlawful entry into the estate of the appellants and the estate can be no place other than land. The entery was into the land and the destruction or damage was done to the rubber plantation in the estate on the land. I hold the view that claim of the appellants for compensation and damages for destruction of their rubber plants as a result of the respondents unlawful entry into their estate is an action relating to land.

For the appellant it was argued that “Neither the Petroleum Act nor the Regulation made thereunder prescribed any period within which a claimant may commence an action against the holder of an Oil Mining Lease claiming fair and reasonable compensation. In the absence of such an express provision in the law, it will be erroneous for such to be presumed or imported unto the appellants case.”

With due respect to learned Counsel, if it is intended to exclude claims arising from the Petroleum Act and the Regulation made thereunder there would have been express provision to that effect either in the Act or in the Regulation made pursuant to same. It cannot be correct or the intention of the law that a claimant, as learned Counsel’s argument would imply, could wait for an indefinite period of time after the accrual of his right to seek redress. See the reasons for the statutes of limitation in National Universities Commission Vs. Olapade Olatunji Oluwo and 5 Ors. (2001) 3 NWLR (Pt.699) 90 at 109. Cited by the respondents. For the purposes of limitation law time begins to run when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. See Jallco Ltd Vs. Owoniboys Technical Service Ltd (1995) 4 NWLR (Pt.391) 534. On the facts before the court below, there was in existence a person who could sue in 1971 and there was a person who could be sued and the unlawful entry and the consequent destruction for which the respondent refused to pay compensation and the refusal to pay compensation had also occurred sometime in 1971. The 1st appellant testified that “it was in 1971 that I met the 1st defendant first in the rubber estate. Ever since 1971, the 1st defendant has refused to pay us compensation” See page 192 of the records.

Appellant should have commenced the action within 12 years from the accrual of the cause of action in 1971. The action commenced in 1994, 23 years after the accrual of right to action is statute-barred. I resolve issue 1 in favour of the respondents.

Issue 2 is the question whether or not, the appellants have the requisite locus standi to commence and prosecute the action. I agree with learned Counsel for the appellants that the Writ of Summons was not amended and that it was not specially endorsed to the effect that the case was being prosecuted by the 1st appellant in her capacity as an administratrix of the estate of late Joseph Asaboro. Further more, any such endorsement where required will be on the Writs of Summons and not endorsed on the statement of claim. Be that as it may the appellant pleaded in paragraph 8 of the further amended statement of claim “Joseph Asaboro died on 2nd January, 1968, and his widow (the 1st plaintiff herein) and one Chief Sale Owolabi, the Elemo of Ikare were appointed the administratrix and administrator respectively of the estates of the deceased. The plaintiffs should found and rely upon the letters of administration issued to the 1st plaintiff and Chief Sale Owolabi.” In paragraph 10, the appellants averred that “the plaintiffs aver that in 1985, the administrators of the Estate of late Joseph Oritseyiosor Asaboro leased the said rubber estate to the 2nd plaintiff … ” By term “administrators” I believe the appellants mean the 1st appellant as an administratrix and Chief Sule Owolabi as an administrator of the estate of the deceased. Also, in the heading of the further amended statement of claim the 1st appellant was described as “sole surviving administratrix of the estate of late Joseph Asaboro. Though in appropriate cases endorsement of the status of the plaintiff should appear on the Writ of Summons, not on the statement of claim the above description of the 1st appellant and paragraphs 8 and 10 of the further amended statement of claim leaves little doubt as to the capacity in which the 1st appellant commenced and prosecuted the case. The averments as to the status of the 1st appellant having been denied by the respondent the burden of proof of same was cast on the appellants. It should be noted that to endorsement on the Writ of Summons is not the same as averment in the pleading, which also requires proof. Did the appellants or either of them discharge the burden of proving the averments relating to the capacity of the 1st appellant? The nearest the 1st appellant came to proving her claimed capacity was her testimony that” In reaction, I came with Chief Sule Owolabi a co-administrator to see the rubber plantation” Nor-was the letters of administration pleaded produced or tendered at the trial. Their being no evidence on the issue, the status claimed by the 1st appellant in the pleadings was not proved or was abandoned. What is the effect of the abandonment of the status claimed by the 1st appellant in the pleadings?

Learned Counsel for the appellant argued that the failure to prove the averred status of the 1st appellant was immaterial as the said status was not the sole ground on which the suit was initiated. He argued that the 1st appellant as the widow of the deceased has sufficient legal interest in ensuring that the estate of her deceased husband is protected. On the other hand, the respondents would hold the 1st appellant to the status or capacity attributed to her in the pleadings and argued that failure to prove some is fatal to the appellant’s case.

I have considered the pleadings, the evidence led and the judgment of the trial Court and well as the argument of learned Counsel for the parties on this point. It is my view that the averment that the 1st appellant was appointed administratrix of her husband estate is material and this was the capacity in which she prosecuted the suit and in which she dealt with the 2nd appellant over her husband’s estate in 1985. I agree that a widow can sue in respect of her late husband’s estate, but a widow per se has not the same right over the estate of her husband as a widow who has been appointed an administratrix of the estate. The latter can administer the estate, but the former cannot do so. The 1st appellant’s claimed status as an administratrix of her late husband’s estate is the legal capacity in which she instituted the proceedings and if that foundation is abandoned it collapses and the case goes down with it.

See Owodunni v. Reg. Trustees of C.C.C. (2000) 6 SC (Pt.111) 60.

The 1st appellant and Chief Owolabi contracted with the 2nd appellant in relation to the estate of Joseph Asaboro in their alleged capacities as administratrix and administrator respectively of the estate. In view of the fact that the capacity in which the appellant and Chief Owolabi contracted with 2nd appellant was pleaded but not proved, it fellows that any transaction entered into in that capacity is null and void as the capacity which is the basis of the transaction was not proved.

The 1st appellant has no legal right to administer the estate of Joseph Asaboro and any dealing with the estate, as an administratrix is void. The 2nd appellant who claims through the 1st appellant cannot fare better than the 1st appellant. I hold therefore that the appellants had no locus to commence or prosecute the action.

In conclusion, I hold that the appeal is devoid of merit and accordingly it is hereby dismissed. I make no order as to costs.

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Other Citations: (2005)LCN/1777(CA)

Emmanuel Omozeghian V. Chief J. J. Adjarho & Anor (2005)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

The appellant, a retired driver with the Edo State Civil Service is the owner of a house situated at and known as No. 18 Good Samaritan Road, Uselu, Benin City, where he lives with his family and some rent paying tenants. He entered into a hire purchase agreement for the purchase of a vehicle in April 1994, and when he could not pay accumulated monthly installments of N30,000.00 (thirty thousand Naira) the hire purchase company seized the vehicle from him. To assist the appellant, the 2nd respondent took him to the 1st respondent on the 5th of September, 1995 to secure a loan. According to the appellant, the 1st respondent agreed to lend him the sum of N150,000.00 (One hundred and fifty thousand Naira) at an interest rate of 35% repayable by the 5th of September, 1996 but the 1st respondent’s lawyer in collusion with the 1st respondent prepared a sale agreement for his house, which was read over to the illiterate appellant as a loan agreement, which he signed.

The appellant claimed that he discovered the fraud the following year when he went to the 1st respondent to plead for more time to repay the loan and was told that the agreement he signed was for the sale of his house and this was followed with a letter dated 26th August, 1996 and headed “Reminder of Sales Agreement of 5/9/95” telling the appellant to vacate the house for the 1st respondent on or before the 4th day of September, 1996. It was on the receipt of this letter that the appellant brought out the agreement for someone to read to him and was shocked to be told that the document said that he had sold his house to the 1st respondent for N780,000.00 (seven hundred and eighty thousand Naira). The 1st respondent thereafter caused a “Not for Sale” sign and his name to be painted on the appellant’s house.

Alarmed at this development, the appellant instituted an action against the respondents at the High Court of Justice, Benin City before Hon. Justice G. E. Edokpayi, wherein he sued the respondents for the following reliefs:-

1. A declaration that the agreement made between the plaintiff and the 1st defendant on the 5th of September, 1995 in as much as it purports to be a Sales Agreement, is fraudulent, illegal, null and void and of no effect.

Particulars of Fraud

When the document in question was read to the plaintiff, who is an illiterate, the aspect relating to sale of the property as well as the sum of N780,000.00 was cleverly concealed from him.

What was read to the plaintiff was that a loan of N150,000.00 had been granted by the 1st defendant to the plaintiff with an interest rate of 35% repayable by the 5th of September, 1996.

Particulars of Illegality

(i) By virtue of S. 34 of the Land Use Decree 1978 the plaintiff is deemed to hold a statutory right of occupancy in respect of the land in question, consequently, S. 22 of the land Use Decree makes it unlawful to alienate such land without the consent of the Military Governor First and obtained.

(ii) S. 6 of the Lands Instruments Registration Law requires such document to be reg1stered before it can be used. S. 8 provides that no such document can be registered unless the illiterate executing it does so in the presence of a Magistrate or other approved Judicial Officer with such officer verifying such execution.

2. A declaration that the 1st defendant’s conduct in invading the plaintiff’s premises, painting his name on the plaintiffs building situate at No, 18 Good Samaritan Road, Uselu, Benin City and threatening to evict the plaintiff therefrom is an act of trespass.
3. N50,000.00 damages for the defendant’s acts of trespass.
4. An order that the 1st defendant return to the plaintiff, the title documents to the land used by the plaintiff to secure a loan of N150,000.00 obtained from the 1st defendant, viz:-

(a) The two Oba’s approvals.

(b) The building plan of the house erected on the land.

5. An order of perpetual injunction restraining the defendants, their agents, servants or privies from further trespassing on the plaintiff’s said property.

At the trial that ensued, the appellant testified for himself, while the 1st respondent and another witness testified for the respondents. After hearing addresses from counsel, the learned trial Judge, Edokpayi, J., delivered his judgment on the 14th of July, 2000, wherein he held as follows-

“I have not and I do not believe the evidence of the plaintiff. I believe the 1st defendant and the defence witness, Aghojah, Esq., whose evidence have been amply supported by the contents of exhibit D which the plaintiff and his witness in that document willingly and intentionally executed as the written agreement of the transaction between the plaintiff and the 1st defendant. Weighing the evidence adduced by the plaintiff in support of his claims and placed side by side the evidence of the defence on the imaginary scale of justice of this case; I prefer the case of the defence to that of the plaintiff. I finally come to the conclusion that the plaintiff has not established his case or any of his claims on the preponderance of evidence. Consequently, the plaintiff’s claims and action which lack merit are dismissed”.

Aggrieved by the above decision, the appellant filed a notice of appeal with six grounds of appeal in this court, and in line with the Rules of this court, briefs of arguments were duly filed and exchanged. In the appellant’s brief prepared by O. V. Omoijahe, Esq., the following issues for determination were formulated as calling for determination in this appeal:-

1. From the evidence before the court and the surrounding circumstances of the case, was the learned trial Judge right in believing the evidence of the defence that the transaction was a sale rather than a loan secured by depositing title documents?

2.(i) Was the learned trial Judge right in failing to advert his mind to the provisions of the Land Use Act particularly sections 34, 22 & 26 thereof, and section 8 of the Land Instruments Registrations Law, Vol. IV, Cap. 81, Laws of the former Bendel State of Nigeria applicable in Edo State and holding that the house has been sold to the 1st defendant who thereby became the owner?

(ii) Has the 1st defendant, in as much as he is claiming to have bought and taken possession of the house in question, discharged the onus of establishing that all the statutory conditions precedent to the vesting of title in him had been satisfied?

(iii) If the answer to the above is in the negative, was the learned trial Judge right in holding that the plaintiff had not established his claim as contained in reliefs 1,2,3, and 5 of his amended statement of claim on the preponderance of evidence?

3. Was the learned trial Judge justified in invoking section 151 of the Evidence Act against the plaintiff in respect of exhibit D, a document made by the 1st defendant?
4. Was the learned trial Judge correct in holding that the plaintiff gave no evidence in support of his claim in paragraph 41 of his amended statement of claim and holding that the said paragraph had been abandoned?

It was however submitted in the respondent’s brief settled by S. O. Agwinede, Esq., the issues calling for determination lie within a narrow compass, and the following issues numbered (5) to (7) were formulated as so arising:-

5. Whether a party who is charged with the responsibility of obtaining consent under the Land Use Act, 1978 to a Deed of Transfer but failed to do so can turn round to challenge the validity of the Deed to evade his obligation thereunder, on the ground that the required consent of the Governor was not obtained thereto?
6. Whether from the quality and quantity of the evidence adduced before the lower court, the learned trial Judge was justified in holding that the appellant has not proved his case as required by law and consequently dismissing same?
7. Whether the learned trial Judge properly reviewed, evaluated and appraised the evidence adduced before him before arriving at his conclusion and final judgment?

I agree with the respondents that the issues as formulated by the appellant are more wide-ranging than are necessary in the determination of this appeal. In addition, the appellant split his issue 2 into (i), (ii), & (iii) which is absolutely unacceptable. Authorities abound which state that it is clearly unacceptable for an issue to raise in it, other issues. It is well settled that most appeals are won on a few cogent and substantial issues, well framed, researched and presented than on numerous trifling slips. See Iloabuchi v. Ebigbo (2000) 8 NWLR (Pt. 668) 197; & Ehikhamwen v. Iluobe (2002) 2 NWLR (Pt.750) 151 where the court also held that the practice of splitting issues is likely to confuse consideration of principal issues with subsidiary issues.

In my view, the issues formulated by the respondents are more to the point and capture in a nutshell, the essence of the complaints in the grounds of appeal, and I will adopt them in dealing with this appeal. Before addressing the issue of Governor’s consent however, I consider it best to first of all resolve the issue of whether the learned trial Judge was justified in holding that the appellant has not proved his case as required by law.

It is the appellant’s submission that in arriving at the conclusion that the appellant could not have entered an agreement to repay N780,000.00 in a year when he was unable to pay a monthly installment on N10,000.00 to the hire purchase company, the learned trial Judge did not advert his mind to the fact that the loan was to have been used to reclaim the appellant’s vehicle, with the attendant hope of beginning afresh and on a sounder foundation based on the extra fund that would be available from the loan. Furthermore, that the learned trial Judge also failed to advert his mind to the fact that borrowers are usually necessitous men who sign agreements almost always in desperation or ignorance of the legal jargons inserted by the draftsmen, or more still, because of not having the advantage of legal advice. Consequently, that the appellant was a victim of undue influence who had a most unreasonable and unconscionable bargain foisted on him, citing Pan Bisbilder (Nig.) Ltd. v. First Bank (2000) 74 LRCN 127 (2000) 1 NWLR (Pt.642) 684.

It was further argued that there was ample evidence before the learned trial Judge that DW1-C. Aghojah Esq., and the respondents are all Urhobos by tribe, and they took advantage of the fact that the appellant was the only stranger in their midst to introduce obnoxious terms into the agreement to the disadvantage of the appellant, an illiterate who could neither read nor write and who had no independent legal advice or representation. Citing Pinnock v. G. B. Ollivant Ltd. (1934) 2 WACA 164, & Multi Service Book Binding Ltd. v. Marden (1979) 1 Ch. 84, it was further submitted that the court shave been more than willing to bend over backwards to ensure that borrowers of the appellant’s calibre are not taken advantage of.

It is the respondents’ contention however, that the quality and quantity of the evidence adduced by the appellant in the lower court were grossly inadequate, unconvincing and totally lacking in probative value, and that the learned trial Judge painstakingly and meticulously reviewed the facts of the appellant’s case vis-a-vis that of the 1st respondent to dispassionately determine in whose favour the imaginary scale of justice tilted. Furthermore, that the feeble attempt by the appellant to resile from the agreement voluntarily by resorting to falsehood and lying against exhibit D – the loan agreement, was completely thwarted and destroyed by the evidence of DW1 which he gave with characterlstic candour, and which evidence the learned trial Judge had not the least hesitation in believing. It was further submitted that the learned trial Judge finally disbelieved his evidence and believed that of DW1 and the 1st respondent; that it is trite law that the evaluation of the evidence of witnesses is within the exclusive jurisdiction of the trial Judge who has seen and heard the witnesses when they testified in the witness box; and that an appellate court cannot interfere with such evaluation except in exceptionally rare cases and do so only when the justice of the case demands such interference, citing I. O. Ojosife & Ors. v. Adekunle Odunsi (1979) 2 FNR 9; Paul Omoregbe v. Ehigiator Edo SC 142/69; Bakare v. Folontnso V. I. A. Adeyemi (1975) 1 NMLR 128.

The respondents are right. The duty of ascribing probative value to evidence is primarily that of the trial court. This duty is based on the fact that the trial court, unlike the appellate court, has the advantage of seeing and observing the witnesses’ demeanor, candour or partisanship as the case may be, their integrity, manners and comportment, and assessing the background from which the witnesses testify while testifying and drawing necessary inferences – see Agbi v. Ogbeh (2005) 8 NWLR (Pt. 926) 40; Awudu v. Daniel (2005) 2 NWLR (Pt. 909) 199. In other words, a trial court is entitled to determine after listening to witnesses and watching their demeanor in the witness box, which witness to believe and which one not to believe. In this case, the learned trial Judge simply did not believe the appellant.

In his judgment at pages 106 – 107 of the record, he stated as follows:-

“I believe the 1st defendant’s evidence and I believe the evidence of Aghojah, Esq., I do not believe that the plaintiff used the house at No. 18A, Good Samaritan Road, behind Uselu Motor Park, Benin City, as a security against any loan secured from the 1st defendant. I believe that the plaintiff sold the house to the 1st defendant as stated in exhibit D, which is jointly executed by the plaintiff, the 1st defendant and their witnesses. The plaintiff who wants this court to believe him has not explained why he had to finally take the loan of N150,000.00 at the high interest rate of 35% per month when the loan which he actually wanted and which the 2nd defendant promised to help him to secure and which he himself and the 2nd defendant set out for the house of the 1st defendant to secure for him (the plaintiff) was only N30,000.00, more so, when on 5/9/95 when he was receiving the money which he called loan, it was made clear to him by the 1st defendant that a year from that date, he (the plaintiff) will be owing N780,000.000 instead of N30,000.00 which compelled him to seek and secure that money which he called loan. The plaintiff testified that as soon as he secured the loan on 5/9/95, he went to pay what he was owing on his hire purchase agreement. The plaintiff and his witness in exhibit D, having voluntarily secured the money by execution of that document as it is, the plaintiff will not be allowed to resile from that agreement. I believe Aghojah, Esq., when he testified that the issue of interpretation of any word or expression in exhibit D did not arise when he read out the contents of exhibit D to the plaintiff and the defendants. I believe him when he testified that the plaintiff did not request for any interpretation of the document to him. The plaintiff having failed to prove any pleaded fraud, he is estopped from saying that exhibit D, which he and his witness in that document voluntarily signed, and on the basis of which document, he collected money from the 1st defendant is not a sales agreement and/or meant by the parties to that agreement to be a sales agreement, which it is. The reason is that section 151 of the Evidence Act provides as follows-

‘When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person s representative in interest, to deny the truth of that thing’.

The plaintiff intentionally executed exhibit D and he thereby caused the 1st defendant to believe and act on it as a Sales Agreement upon which the 1st defendant parted with his money to the plaintiff who received and used same. The words and expressions used in exhibit D, the agreement, are clear and unambiguous. In Union Bank v. Ozigi (1994) 3 NACR 1; (1994) 3 NWLR (Pt.333) 385 – The agreement, exhibit D, expressly and clearly stated that it is a sale agreement. It is not now for this court to alter that express and clear statement of fact made in exhibit D”.

In arguing that the learned trial Judge was wrong to have invoked section 151 of the Evidence Act against the appellant over exhibit D made by the 1st respondent, the appellant submitted that in arriving at his conclusion, the learned trial Judge totally ignored the appellant’s evidence of the circumstances surrounding the preparation of exhibit D; that it was not the intentional execution of exhibit D that gave rise to the dispute but the intentional misrepresentation of the content of the agreement by the 1st respondent and his lawyer to the illiterate appellant, and if the learned trial Judge had adverted his mind to the above circumstances, he would have found that it was the 1st respondent and his lawyer that intentionally caused the appellant to believe that exhibit D was a loan agreement as opposed to a sales agreement which it turned out to be. Furthermore, that if the learned trial Judge had considered the protestation of illiteracy by the appellant, he would have found that it was the 1st respondent that intentionally caused the appellant to act on exhibit D as a loan agreement, since illegality, fraud and want of execution were raised by the appellant in paragraph 41 of his amended statement of claim, and extensively canvassed by his counsel during his address. Sanyinna v. A. I. B. (2000) 6 WRN 23 cited. It was also argued that the lower court was wrong to hold that the appellant did not give any evidence to support his claim in paragraph 41 of the amended statement of claim, as there was sufficient evidence adduced to support the said claim.

The respondents however argued that after making very detailed and elaborate findings of fact, the learned trial Judge came to the logical and irres1stible conclusion that the appellant by his actions and conduct made the 1st respondent part with his N780,000.00 after executing exhibit D voluntarily and handing over his title deeds of his house to the 1st respondent, and that the appellant did not make any attempt to report the alleged fraud to the Police and could not establish same by any credible evidence, therefore the learned trial Judge was right to invoke the provisions of section 151 of the Evidence Act and to hold that the evidence adduced were not sufficient to sustain the claims on the said paragraph 41.

It was further submitted that assuming without conceding that the appellant is an illiterate, the appellant is still bound by the contents of exhibit D, prepared by a legal practitioner, citing Edokpolo & Co. Ltd. v. Samson Ohenhen & Anor. (1994) 7 NWLR (Pt. 358) 511, & section 5 of the Illiterates Protection Law, Cap. 70, Laws of Bendel State now applicable to Edo State, which it was submitted exempts documents prepared by a legal practitioner from the protection provided by law for illiterates, and that the learned trial Judge having heard the testimony of DW1, the legal practitioner who prepared exhibit D in the normal course of his business was perfectly entitled to believe him and disbelieve the appellant as he rightly did.

Now, the key issue that would determine this appeal is whether the appellant is an illiterate as he claimed or not. Unfortunately, even though the learned trial Judge did not believe the appellant’s evidence in its entirety, he did not make a specific finding on the issue. Fortunately, however, all is not lost, as this court is in as good a position as the trial Court in making its own findings, where such findings are not based on the demeanor of witnesses or are inferences from other findings properly made – see Oyedeji v. Akinyele (2002) 3 NWLR (Pt. 755) 586; Sokwo v. Kpongbo (2003) 2 NWLR (Pt. 803) 111, & Jiwul v. Dimlong (2003) 9 NWLR (Pt. 824) 154. An “illiterate” within the meaning of the Illiterates Protection Law is a person who is unable to read with understanding and to express his thoughts by writing in the language used in the document made or prepared on his behalf; that is a person who is totally illiterate. A person who is unable to read or write the language in which a particular document is written but who can read or write in some other language, is not an illiterate within the meaning of the Illiterates Protection Act – see Girgiri v. Elf Marketing (Nig.) Ltd. (1997) 2 NWLR (Pt. 487) 368; Mainagge v. Gwamna (1997) 11 NWLR (Pt. 528) 191 & Otitoju v. Gov., Ondo State (1994) 4 NWLR (Pt. 340) 518, where the Supreme Court held that the question whether a person is literate or illiterate cannot be presumed by the court but must be established by evidence, and that the burden of proof of illiteracy is on the party who raises it.

In this case, appellant averred in paragraph 36 of his amended statement of claim that – “he cannot read or write and so did not know what was written in the agreement paper, and as such was merely relying on the bona-fide of the defendants and their lawyer”.

In his evidence in chief, he testified as follows:

“I told the 1st defendant that I wanted to borrow from him the sum of N150,000.00. When we got to the office of the lawyer, the lawyer brought out the agreement, which he had already prepared. I could not read the contents of the agreement and so the lawyer read out the contents of the agreement to me in the presence of 1st and 2nd defendants. We were the only four persons present when the lawyer read the agreement and so the lawyer read out the contents of the agreement to me in his chambers. What the lawyer read to my heating was that I borrowed from the 1st defendant the sum of N150,000.00 with interest of 35%. The lawyer calculated the whole amount I was to pay in a year, both capital and interest, and it came up to N780,000.00. When he read the agreement to me, the lawyer did not read to me that I sold the house to the 1st defendant. After the lawyer had read the agreement to me, I signed it and the 2nd defendant who took me to borrow the money from the 1st defendant then signed the agreement as my witness. I was then given my own copy of the agreement. The loan of N150,000.00 was then given to me by the 1st defendant.”

DW1, Chris Aghojah, Esq., who prepared exhibit D testified as follows:-

“Based on the information which the plaintiff and the 1st defendant gave to me, I then prepared an agreement in triplicate for them. After the preparation of the agreement, I gave a copy each to the plaintiff and the 1st defendant while I had my own copy. As the plaintiff and 1st defendant were reading their own copies silently to themselves, I preferred to read my own copy aloud for everyone of them to hear. Both the plaintiff and the 1st defendant agreed that the contents of the agreement represent the instructions given to me by them. At that stage, the 1st defendant instructed his driver to go to the back of his car to bring a bag containing money. When the bag was brought, and the money was given to the plaintiff, the plaintiff and his friend he came with counted the money which was about seven hundred and something thousand naira and they said the money was Correct. I cannot remember the exact amount now. After the plaintiff and his friend had confirmed that the money was correct, they then executed the agreement. This is a copy of the agreement, which I drafted and which the plaintiff and the 1st defendant executed in my chambers. It is exhibit D in this suit. The document having been executed I gave a copy to the plaintiff. I also gave the original copy together with the title before the execution of exhibit D, the plaintiff never told me that he could not read or write and he did not ask me to interprete any word or expression in the agreement to him. The issue of interpretation never arose.”

It is evident from the foregoing that apart from his say-so, the appellant did not adduce any evidence at all to substantiate his claim that he was an illiterate person. In fact, his evidence in court points to the contrary; that he must be literate. In his evidence in chief, the appellant testified that he was a retired civil servant from the Governor’s office, and that he retired as a motor driver. During cross-examination, he replied that he was in the civil service for thirty years and seven months until he reached retiring age, and that he served 14 Commissioners in the State when he was in service. I find it incredible and therefore hard to believe that the appellant is illiterate – not a civil servant in the Governor’s office who, as he claimed, drove 14 Commissioners during his thirty years and seven months in service. From his own account of what transpired that day, I find it hard to also believe that he was a victim of undue influence, who had a “most unreasonable and unconscionable bargain foisted on him” as he wanted the court to believe.

Fraud is a matter with the implication of criminality and it is trite law that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt – see section 138 of the Evidence Act & U.T.C (Nig.) Plc. v. M.I.A. Ltd. (2003) 13 NWLR (Pt. 837) 291. In this case, the appellant claimed as follows in paragraph 41 (1) of his amended statement of claim-

“A declaration that the agreement made between the plaintiff and the 1st defendant on the 5th of September, 1995 in as much as it purports to be a Sales Agreement, is fraudulent, illegal, null and void and of no effect.

Particulars of Fraud

When the document in question was read to the plaintiff, who is an illiterate, the aspect relating to sale of the property as well as the sum of N780, 000. 00 was cleverly concealed from him.”

As to this claim, the learned trial Judge held as follows-

“The evidence of the plaintiff to the effect that the transaction between him and the 1st defendant, and which transaction is recorded in exhibit D, was a loan transaction and not a sales transaction and that what C. Aghojah, Esq., read out from exhibit D, before it was signed by the parties and their witnesses was that the 1st defendant loaned the money to the plaintiff and not that the plaintiff sold the house to the 1st defendant impress me as tissues of lies.” (Italics mine)

In my view, the learned trial Judge is absolutely light. The appellant did not adduce any evidence to prove his allegation that the agreement he signed that day was executed in a fraudulent manner. On the appellant’s argument that the learned trial Judge did not advert his mind to the fact that borrowers are usually “necessitous men who sign agreements almost always in desperation or in ignorance of the legal jargons inserted by the draftsman, or more still, because of not having the advantage of legal advice”, and that the respondents were both Urhobos, who took advantage of the appellant who is not Urhobo “to introduce obnoxious terms into the agreement”, I must say that these are asinine arguments that have no place in a legal brief, and can only be described as the futile grasp of straw by a drowning man.

Sentiments command no place in judicial deliberations – see Ezeago v. Ohaneyere (1978) 6 – 7 SC 171, & Kanno v. Kanno (1986) 5 NWLR (Pt. 40) 138. Besides, ignorance of the law as opposed to ignorance of the facts has never afforded any body an excuse; for everybody is supposed to know the law; the maxim is Ignorantia juris quod quisque scire tenetur excusat [Ignorance of the law which everybody is supposed to know does not excuse] – see U.D.U v. Kraus Thompson Orgs. Ltd. (2001) 15 NWLR (Pt. 736) 305. In my view, a counsel worth his salt should not be seen or heard whipping up tribal sentiments on behalf of his client. It will not and does not speak well of his practice and appellation as a learned gentleman. Be that as it may, the appellant also contended that the learned trial Judge erred in his use of section 151 of the Evidence in this case. The provisions of section 151 of the Evidence Act are to the effect that:

(i) If a man by his words or conduct willfully endeavors to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such statement did not exist at the time;

(ii) If a man either in express terms or by conduct makes a representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of affairs;

(iii) If a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that the latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented. See Iga v. Amakiri (1976) 11 SC 1 at 12 relied on in Omoniyi v. U.B.A. Ltd. (2001) 5 NWLR (Pt.706) 240.

A careful look at the above situations in comparison to the circumstances of this case shows that the appellant is right, but only in the sense that section 151 of the Evidence Act has no relevance to this case, and should not have been applied to this case. But this error on the part of the learned trial Judge does not count for much; it had no effect at all on the decision of the learned trial Judge not to believe the appellant, which is the key factor in this appeal. It is trite law that it is not every error in a judgment that will lead automatically to its reversal; the error must be substantial, and must occasion a miscarriage of justice before an Appellate Court is bound to interfere – Osolu v. Osolu (2003) 11 NWLR (Pt. 832) 608 SC; Ohiwerei v. Okosun (2003) 11 NWLR (Pt. 832) 463 CA. In this case, the learned trial Judge just did not believe PW1, and he cannot be faulted for that.

It is the prerogative of the trial court to believe or disbelieve a witness, and evidence, which is credible and is effectively uncontradicted by any other evidence, is the kind of evidence a trial court usually accepts and acts upon, not evidence, which is found not credible or has no probative value. Credible evidence is evidence worthy of belief, and for evidence to be worthy of credit, it must not only proceed from a credible source but must be “credible” in itself, in the sense that it should so natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe it – see Agbi v. Ogbeh (supra). In this case, the learned trial Judge was right, in my view, not to believe the appellant. As he queried –

“The plaintiff who could not pay N120,000 a year or N10,000.00a month was to pay N780,000.00a year or N65,000.00 monthly when there is no evidence that within that one year between 5/9/95 and 5/9/96, the plaintiff had or entertained any hope of getting any money from any other source apart from his pension as a retired driver”.

Be that as it may, the appellant also argued that the learned trial Judge having believed that the appellant sold the house to the 1st Respondent, and having found also that the 1st respondent had been exercising a right of ownership, ought to have proceeded to inquire whether or not the sale complied the necessary statutory provisions that confers such right of ownership on the 1st respondent, which is the second issue for determination in this appeal, involving sections 22, 26 & 34 of the Land Use Act, 1978. Section 34(1) & (2) of the Land Use Act provides as follows –

(1) The following provisions of this section shall have effect in respect of land in an urban area vested in any person before the commencement of this Act.

(2) Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act.

Section 22 of the same Act provides as follows:-

“It shall not be lawful for the holder of a statutory right of occupancy granted by a Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained”.

And section 26 thereof reads as follows –

“Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void”.

The appellant submitted that the above provisions of the Land Use Act are mandatory and must be strictly complied with, citing Iragunima v. Uchendu (1996) 2 NWLR (Pt. 428) 30 at 52; Savannah Bank v. Ajilo (1989) 1 NWLR (Pt. 97) 305; & Union Bank v. Dare (2000) 9 WRN 110 at 109-110; (2000) 11 NWLR (Pt.679) 644. Furthermore, that the onus is on the 1st respondent who claimed to have bought and taken possession of the property to establish that all the statutory conditions precedent to having title/ownership vested in him have been satisfied, as opposed to the appellant who maintained that he did not sell his house, and that there was no iota of evidence before the trial court that the necessary Governor’s consent had been obtained before the purported transfer, which is fatal to the whole transaction.

On their own part, the respondents argued that learned trial Judge was not unmindful of the various provisions of the Land Use Act, when he held that all Statutory conditions precedent to the vesting of title of the house and premises in the 1st respondent had been satisfied, and that the case of Savannah Bank v. Ajilo (supra) is d1stinguishable from this case, since in that case, the Supreme Court was not invited to determine whether a person who has statutory duty to seek Governor’s mandatory consent who failed or refused to do so can rely on his own default to declare that the transaction was invalid and evade his obligation under the said transaction.

Furthermore, that lower courts have been enjoined not to consider pronouncements of higher courts cited to them in isolation from the facts and circumstances of the case before them, citing Dr. C C v. C.I. Ude & Anor. (2002) 37 WRN 101; Adedeji v. National Bank & Anor. (1989) 1NWLR (Pt. 96) 212; & Ayo Solanke v. Abraham Abed & Anor. (1962) 1 ANLR 230; (1962) 1 SCNLR 371.

It was further submitted that there is no penalty specified in any of the provisions of the Land Use Act relied on by the appellant for his submission that the transaction between the appellant and 1st respondent is void; that when an enactment makes a contract void but does nor specify any penalty, such contract is not illegal, as the word ‘void’ can in the circumstances be interpreted to mean ‘voidable; and that it is voidable at the election of the person or persons for whose protection the specific provision in the enactment is made. It was further argued that such person or persons must, however, be capable of protecting themselves; that the provisions in sections 22 & 26 of the Land Use Act are made for the protection of the Governor of a State, and the Governor in the appropriate cases can protect himself by revoking any allocation like assignment, lease, mortgage or transfer of possession of any land over which statutory right of occupancy is granted or deemed granted; and that the word ‘void’ used in section 26 of the Land Use Act should therefore be interpreted as “voidable” at the instance of the Governor and not at the instance of any party to the said contract of assignment, lease, mortgage, etc., citing Solanke v. Abraham Abed & Anor. (Supra).

The respondent further submitted that the appellate courts have always frowned seriously at the morally despicable conduct of a party who after deriving benefits from a contract will turn around to say that he cannot fulfill his own obligations under the contract because it is void or invalid, and have always refused to declare such contracts void or invalid, citing Henrison Okechukwu v. Humphrey C. Onuorah (2000) 82 LRCN 3300; (2000) 15 NWLR (Pt.691) 597 & Adedeji v. National Bank & Anor. (supra). In the respondent’s view, the learned trial Judge was perfectly right when he held that the Deed of Transfer – exhibit D executed by the appellant and the 1st respondent is not invalid, null and void because the consent of the Governor was not obtained by the appellant before the said transfer of his house to the 1st respondent.

I have gone through the judgment of the lower court and contrary to the latter submission of the respondents, I find no reference therein to any of the provisions of the Land Use Act relied on in this appeal, and must point out that the learned trial Judge did not address the issue or make any finding on the issue of Governor’s consent, etc. In this regard, the appellant argued that the failure of the learned trial Judge to consider the relevant statutory provisions in relation to the transaction occasioned grave miscarriage of justice as his decision would not have been the same had he considered the relevant provisions and the decided cases referred to before him. This court was therefore urged to hold that all the relevant statutory provisions necessary to transfer the property – No. 18, Good Samaritan Road, Uselu, Benin City – to the 1st respondent have not been complied with, therefore the purported sale and transfer of the said property to the 1st respondent is null, void and of no effect, and the 1st respondent had no right to exercise acts of ownership in the manner he admitted to have done in respect of the property.

Now, this issue is easily resolved. The learned trial Judge found as a fact that the appellant did not use the said property as a security against any loan secured from the 1st respondent, but rather that he sold the house to the 1st respondent as stated in exhibit D, which they jointly executed.

I cannot and will not disturb that finding, as it is not my place to so do. What the law says, however, is that it is the overall intention of parties who executed an agreement and what that agreement is meant to be that is of paramount importance in circumstances such as these. Hence, the relationship of the parties is determined by law on a consideration of all the relevant provisions of the agreement see Hamidu v. Sahar Ventures Ltd. (2004) 7 NWLR (Pt. 873) 618. In this case, exhibit D reads as follows:-

“Now this agreement witnesseth as follows:

That in pursuance of this agreement and in consideration of the sum of N780,000.00 (Seven hundred and eighty thousand naira) purchase price paid by the purchaser to the Vendor the said sum of which the vendor acknowledges receipt, the vendor as beneficial owner hereby transfers his entire interest on the said parcel of land measuring 100-ft by 150-ft demarcated by – more particularly described in the application for change of name and re-approval dated 10/6/69 and approved on 12/7/69 by the Oba of Benin together with the building and appurtenance situated thereto to the Purchaser absolutely and free from any incumbrances.

The vendor covenants with the purchaser as follows:

(1) That he is the owner of the land and building herein conveyed that he has a good title to same and shall indemnify the purchaser for any loss suffered by the purchaser as a result of any defect to his title to the land and building herein conveyed or any part thereof.

(2) That he will/has delivered the following documents in respect of the said land and building to the purchaser:

(a) Oba’s approval dated 27/7/63 in the name of David Eghianruwa the vendor’s predecessor in title.

(b) Oba’s re-approval dated 12/7/69 in the name of the vedor herein.

(c) Building plan No. BDPA/Bc 8088 prepared by USSO & Sons and approved on 8/9/70.

(3) That he will obtain the Governor’s consent and make a proper Deed of Assignment in favour of the purchaser herein whenever he is called upon to do so by the purchaser.

(4) That he will put the purchaser into possession of the land herein conveyed on or before 4th of September, 1996”. (Italics mine)

Now, by virtue of section 22 of the Land Use Act, the holder of a right of occupancy alienating or transferring his right of occupancy must obtain the consent of the Governor to make the transaction valid. If he fails to obtain such consent, then the transaction is null and void under section 26 of the same Act – see Hamidu v. Sahar Ventures Ltd. (supra).

In other words, it is the person who seeks to alienate his property who has the duty to seek and obtain the consent of the Governor to the transaction – see Sosan v. H.F.P. Eng. (Nig.) Ltd. (2004) 3 NWLR (Pt. 861) 546; Amadi v. Nsirim (2004) 17 NWLR (Pt. 901) 111. The law is also clear that an agreement to sell land entered into before the securing of the Governor’s consent is not prohibited within the meaning of sections 22 and 26 of the Land Use Act 1978, and cannot therefore be null and void because the Land Use Act does not prohibit a written agreement to transfer and alienate land so long as such a written agreement is understood and entered into subject to the consent of the Governor – see Mainagge v. Gwamna (supra), & Agbabiaka v. Okojie (2004) 15 NWLR (Pt. 897) 503.

What this means is that exhibit D in this case, wherein the appellant covenanted to “obtain the Governor’s consent and make a proper Deed of Assignment in favour of” the 1st respondent “whenever he is called upon to do so” is valid even though executed before the Governor’s consent was obtained. More importantly, as the respondents rightly submitted, the appellant cannot take advantage of the fact that the said Governor’s consent had not been obtained and attempt to defeat a valid deal as this one he entered into – see Mainagge v. Gwamna (supra); Agbabiaka v. Okojie (supra); Hamidu v. Sahar Ventures Ltd. (supra). See also Amadi v. Nsirim (supra) where this court per Akaahs, JCA, stated as follows:-

There is no better way of describing the defendant’s conduct in this case than to say that it is fraudulent and unconscionable. Either as a weapon of offence or as a shield of defence, any plea by the defendant in seeking to nullify a transaction for lack of Governor’s consent is reprehensible when the responsibility of obtaining the consent rests with the defendant especially when consideration has passed. The party in delict should not be allowed to profit from his fraud.” (Italics mine) The end all and be all of the foregoing is that the appellant cannot be heard to complain that the Governor’s consent was not obtained before exhibit D was executed. Simply stated, it does not lie in his mouth to say that the transfer of the property in question was not properly perfected.

The appellant had sold his interest in the land to the 1st respondent and the effect of that sale is that all the rights the appellant had in the property have been transferred to the 1st respondent. Even though the learned trial Judge did not address this issue in his judgment, it is obvious from the foregoing that contrary to the argument proffered by the appellant, failure to so do has not in any way occasioned a miscarriage of justice, as his decision would have remained the same, with or without considering the above quoted sections of the Land Use Act relating to the transaction. On the last issue, I agree with the respondents that the learned trial Judge properly appraised and evaluated the evidence led in proof of the pleadings exchanged by the parties before him. This case was hinged on the credibility or otherwise of the appellant, and the credibility of a witness is a matter for a trial Judge, not an appellate Judge. The witness is seen by the trial Judge, while an appellate Judge reads the evidence of a witness from the record and is certainly not in a position to determine the credibility of a witness, because it did not have the opportunity of observing the demeanor of the witness, which is one vital way of assessing credibility – see Sanni v. Ademiluyi (2003) 3 NWLR (Pt. 807) 381 SC, Seven-Up Bottling Co. Ltd. v. Adewale (2004) 4 NWLR (Pt. 862) 183. To attack the findings of fact by a trial court, the appellant must therefore show that the views expressed is wrong or perverse, or that the trial court failed to use or palpably misused its advantage of seeing the witnesses – see Awudu v. Daniel (supra). In this case, it is my firm view that the lower court made good use of its opportunity of seeing and healing the witnesses during the trial and did justice in this case and I so hold. This appeal lacks merit and is hereby dismissed. I make no order as to costs.

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Other Citations: (2005)LCN/1776(CA)