Uzoho & Ors V. National Council Of Privatization & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The appellants, herein, commenced an action by way of Originating Summons at the Federal High Court, Abuja Judicial Division (hereinafter, simply, referred to as “the Trial Court”). They sought both declaratory and injunctive reliefs against the respondents with respect to the propriety on their advertisement on April 22nd, 2004 issue of THISDAY Newspaper.

The said advertisement was titled a “Request for expression of Interest.” It invited Legal Practitioners, amongst other professionals, with expertise in petroleum logistics in the Oil and Gas industry, to offer legal services to the respondents on the condition that lawyers subordinated themselves to non-lawyers, shared legal fees with non-lawyers and engaged in partnership relationships with non-lawyers.

The appellants, therefore, sought the following reliefs:

​1. A declaration that having regard to Rule 50 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which bars partnerships between lawyers and members of other professions or non-professional persons where any part of the partnership’s employment consists of the practice of law, it was improper for the defendants to invite ‘expressions of interest’ from Legal Practitioners in relation to the privatization of the Pipeline and Products Marketing Company on the condition that legal Practitioners participate in a partnership/consortium led by an investment bank;

2. A declaration, that having regard to Rule 45 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which bars legal practitioners from sharing legal fees with non-lawyers, it was improper for the defendants to invite ‘expressions of interest’ from legal practitioners in relation to the privatization of the Pipeline and Products Marketing Company on the condition that legal practitioners participate in partnership/consortium led by an investment bank;
3. A declaration that having regard to Rule 48 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which provides that a lawyer’s relation to his client should be personal and that the responsibility should be direct to the client, it was improper for the defendant to invite ‘expressions of interest’ from legal practitioners in relation to the privatization of the Pipeline and Products Marketing Company on the condition that legal practitioners participate in a Partnership/consortium led by an investment bank;
4. A declaration that having regard to Rule 50 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which bars partnerships between lawyers and members of other professions or non-professional persons where any part of the partnership’s employment consists of the practice of law, it is a violation of the aforesaid Rule 50 for Legal Practitioners, including the plaintiffs, to join a partnership/consortium with other professionals or non-professional persons to provide legal services in relation to the privatization of the Pipeline and Products Marketing Company;
5. A declaration that having regard to Rule 45 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which bars legal practitioners from sharing legal fees with non-lawyers, it is a violation of the aforesaid Rule 45 for Legal Practitioners, including the plaintiffs, to share legal fees with non-lawyers by their participant in a partnership/ consortium of professional in relation to the privatization of the Pipeline and Products Marketing Company;
6. A declaration that having regard to Rule 48 of the Rules of Professional Conduct binding on and applicable to legal practitioners in Nigeria which provides that a lawyer’s relation to his client should be personal and that the responsibility should be direct to the client, it is a violation of the aforesaid Rule 48 for Legal Practitioners, including the plaintiffs, to offer and/or provide legal services to the defendant by participating in a partnership/consortium of professional led by an investment bank in relation to the privatization of the Pipeline & Products Marketing company;
7. A declaration that having regard to the provisions of the Legal Practitioners Act, 1990, and the Public Enterprises (Privatization and Commercialization) Decree No.28 of 1999, the defendant cannot, in relation to the privatization of the Pipelines and Products Marketing Company, validly retain the professional services of lawyers who are not entitled to practice law in Nigeria;
8. A declaration that having regard to the defendants’ publication inviting Expressions of Interests for legal services in relation to the privatization of the Pipelines & Products Marketing Company and the qualifications therein contained, the defendants are indeed not acting in good faith with respect to the invitation of Expressions of Interests from legal practitioners in Nigeria;
9. An order restraining the defendants, their officers, employees, agents, assigns and/or representatives from enforcing the conditions stipulated in its April 22nd, 2004 Request for Expressions of Interest and violating the Rules of Professional Conduct applicable to the Nigerian legal profession with respect to the short-listing and/or hiring of applicants for the position of legal adviser for the privatization of the Pipelines and Products Marketing Company;
10. An order perpetually restraining the defendants, their officers, employees, agents, assigns and/or representatives from seeking Expressions of Interests from legal practitioners and/or hiring legal practitioners with respect to the Nigerian privatization programme on conditions that contravene the Rules of Professional Conduct applicable to the Nigerian legal profession;
11. An order for an interlocutory injunction restraining the defendants from closing the deadline for the submission of Expression of Interests by Nigerian legal practitioners with respect to the position of legal adviser on the privatization of the Pipelines & Products Marketing Company pending the hearing and determination of the substantive suit;
12. And for such further or other orders as the Honourable Court may deem fit under the prevailing circumstances.

The respondents filed a notice of Preliminary Objection challenging the jurisdiction of the trial Court, on the grounds that:

i) The appellants have no locus standi to institute the action; and

ii) The first respondent is not a juristic person.

By a ruling delivered on October 21st, 2004, the trial Court held that the suit is academic in nature. It, consequently, struck it out. The trial Court also struck out the name of the first respondent as being a non-juristic person.

​Dissatisfied with that ruling, the appellants then appealed to Court of Appeal, Abuja Judicial Division, (hereinafter, simply, called “the lower Court”) via a Notice of Appeal. By its judgment, delivered on January 15th, 2007, the lower Court dismissed the appeal in part, by holding that the trial Court was right to have struck out the substantive suit on the ground that it was academic. It reversed the holding of the trial Court that the first respondent was not a juristic personality.

Dissatisfied with the judgment of the lower Court, the appellants have now appealed to this Court via an Amended Notice of Appeal containing nine grounds.

​Now, distilled from the nine Grounds of Appeal, the appellants put forward the following four issues for the determination of this Court:

1. Whether the lower Court was right in not reversing the trial Court for prejudging the substantive suit by holding at an interlocutory stage that the respondent’s ‘Request for expression of interest [EOI]’ did not violate the Legal Practitioner’s Rules of Professional Conduct, notwithstanding that the appellant’s originating summons presented rules 45, 48 and 50 for interpretation with respect to the aforesaid publication?
2. Whether the lower Court was right in not reversing the trial Court’s ruling on the basis that the trial Court, suo motu, raised and considered the substantive suit as academic and on that basis struck out the same without affording the appellants the opportunity of being herd, and if so, whether the substantive suit was indeed academic?
3. Whether the lower Court was right to have dismissed the appeal on the basis of ‘non-justiciability and/or lack of locus standi’ notwithstanding that

a. The trial Court did not strike out the substantive suit on the basis of non-justiciability and/or lack of locus standi;

b. None of the Grounds of Appeal challenged the ruling on the basis of the justiciability of the substantive suit and/or lack of locus standi;

c. The issue of ‘non-justiciability and/or lack of locus standi’ did not arise in the appeal and could not have been distilled from any of the grounds of appeal.

​The respondents raised four issues for determination, in similar manner with the appellants, to wit:

1. Whether the lower Court was right in holding that the ruling of the trial Court did not prejudge the substantive action at the interlocutory stage as there was no substantive action by reason of the absence of a live issue before the trial Court?
2. Whether the lower Court was right when it held that ‘in my humble view; I do not think the advert is a sufficient catalyst to arouse any grouse against the respondents by the appellants or anyone at that. Furthermore, the respondents not being Legal Practitioners are not subscribers to the rules of professional conduct for Legal Practitioners; hence the rules have no bearing to and cannot be enforced against them.’
3. Whether the lower Court was right in not reversing the trial Court’s ruling on the basis that the trial Court acted suo motu and raised and considered the substantive suit as academic without affording the appellant’s the opportunity of being heard?
4. Whether the lower Court was right to have dismissed the appeal on the basis of ‘non-justiciability and/or lack of locus standi’ notwithstanding, that

a. The trial Court did not strike out the substantive suit on the basis of non- justiciability and/or lack of locus standi;

b. None of the Grounds of Appeal challenged the ruling on the basis of the justiciability of the substantive suit and/or lack of locus standi;

c. The issue of ‘non-justiciability and/or lack of locus standi’ did not arise in the appeal and could not have been distilled from any of the grounds of appeal.

I shall, in this judgment deal, with the appeal by reference to the issues as formulated by the appellants.

ISSUE 1

Whether the lower Court was right in not reversing the trial Court for prejudging the substantive suit by holding at an interlocutory stage that the respondent’s ‘Request for Expression of Interest [EOI]’ did not violate the Legal Practitioner’s Rules of Professional Conduct, notwithstanding that the appellants’ originating summons presented Rules 45, 48 and 50 for interpretation with respect to the aforesaid publication?

Under this issue, appellants contended that the trial Court prejudged the appellants’ suit at the interlocutory stage by determining the issue in the substantive suit. Consequently, the lower Court erred when it upheld the trial Court’s decision. Reliance was placed on the following casesMobil Oil Nig. Plc v Kena (2001) 1 NWLR (pt. 695) 555 (CA); Attorney-General, Federation v Attorney- General, Abia State [2001] 11 NWLR (pt. 725) 689; Abacha v State [2002] 11 NWLR (pt. 779) 437, 501-506.

He, further, contended that the interpretation of the rules at an interlocutory stage by the learned trial Judge is an infringement of the appellants’ right to fair hearing.

RESPONDENTS’ CONTENTION

The respondents, on the other hand, argued that it is fundamental that, when a Court is examining the issues submitted to it, and finds that it lacks the necessary vires to hear and determine the case, it has a duty to terminate the proceedings before it.

Learned counsel submitted that the law has progressed towards encouraging a Court to attempt to make pronouncement on all issues even when it lacks jurisdiction, to afford this Court the opportunity of examining the issues, if the lower Court is adjudged to be wrong, Itanyi and Anor v Bagudu and Ors (2018) LPELR-46984-(CA). He urged that the Court declines the invitation to interfere with the concurrent findings of the two lower Courts having not been demonstrated to be perverse. He, therefore, entreated the Court to resolve issue one in favour of the respondent.

RESOLUTION OF THE ISSUE

The question presented by issue one is: was the lower Court’s right in its response to the approach of the trial Court which decided a substantive issue at an interlocutory stage. An answer to this question would require a recourse to the ruling of the trial Court.

Now, at pages 33-34 of the record, the learned trial Judge held thus:

The plaintiffs in their originating summons are seeking interpretation of the Rules of Professional Conduct binding on applicable or Legal Practitioners in Nigeria vis-a-vis the publication annexed as exh. A to the affidavit in support of the originating summons. The plaintiffs who are legal practitioners are alleging that the condition for practicing in the exercise violates provisions of the Rules of Professional Conduct binding on them as lawyers. That because their interest to participating cannot be realized due to these conditions, their civil rights have been infringed thus foisting them with locus to challenge same.

I have read over several times the questions for determination and the reliefs sought. It may be true that it is exh. A that has triggered this action and the interpretation given to it by the plaintiffs but at the end of it. I find no live issue at hand. The reliefs sought have a blanket implication to them. The whole suit appears academic and the Court does not do academic exercises. If this were a live issue and the Court were to assume jurisdiction over it. I would Statutory easily come to the conclusion that the fear of the plaintiffs is misplaced. That Exh. A does not in any way imply what they have concluded and does not in any way violate the Rules of Professional Conduct. But as I have said, this is an academic exercise and the Court would not use its limited time in that.

My Lords, I am unable to agree that, from the above passage, the learned trial Judge had pre-judged the substantive suit. Of course, in determining whether a Court has jurisdiction over a suit, the Court is bound to make reference to the pleadings of the appellant, in this case, the Originating Summons, Madukolu v. Nkemdilim [1962] 2 SCNLR 341; Enwezor v Onyejekwe [1964] 1 All NLR 14; Adeyemi v Opeyori [1976] 9-10 SC 31; Tukur v. Government of Gongola State [1989] 4 NWLR (pt. 117) 517.

​From the questions for determination and the reliefs sought, what clearly emerges is that no issue was joined by the parties. The learned trial Judge is also expected to make a careful and proper appraisal of all the evidence before him in arriving at his conclusion. No matter how a question of jurisdiction is broached, the Court must deal with it as it is fundamental to the vires of the Court.

Where the question of jurisdiction succeeds, it results into a total negative operational effect. In other words, the totality of the suit becomes non-existent as it is with the situation at hand. For question of fair hearing to apply, there must be a valid and subsisting suit, not an academic or hypothetical suit, as in the instant case, Gbagbarigha v. Toruemi [2013] 6 NWLR (pt 1350) 289, 316.

​Now, at page 101 of the record of appeal, the lower Court held inter alia, thus:

“…The ruling is very clear; it does not amount to prejudging the alleged substantive action. Indeed, there is no substantive action, there being no live issue and dispute between the parties. The learned trial Judge was therefore right in declining jurisdiction to adjudicate upon the case of the appellants. To have done otherwise will be absurd as the resultant effect would be merely and totally speculative. My observation with due respect is, that the appellants are purely busybodies, interlopers, meddlers and rabble rousers who have no serious business in hand to grapple with and are merely seeking for cheap popularity.”

​I cannot agree more with the lower Court’s position on this issue. Requiring the trial Court to interpret Rules 45, 48 and 50 of the Rules of Professional Conduct for Legal Practitioners in Nigeria would have served no useful purpose. The Court would not have decided an existing lis between the parties who brought it. It would merely be expressing its view on a legal conundrum which the appellants hope to get decided in their favour. I, therefore, have no hesitation in holding that I resolve issue one in favour of the respondents.

ISSUE 2

Whether the lower Court was right in prejudging the substantive suit by holding in an interlocutory appeal that ‘in my humble view; I do not think the advert is a sufficient catalyst to arouse any grouse against the respondents by the appellants or anyone at that. Furthermore, the respondents not being legal practitioners are not subscribers to the rules of professional conduct for legal practitioners; hence the rules have no bearing to and cannot be enforced against them’?

It is the submission of the appellants that the lower Court prejudged the substantive suit at an interlocutory stage. Learned Counsel, further, posited that this Court has, repeatedly, held that a Court is not at liberty to prejudge a substantive suit at an interlocutory stage, Attorney-General, Federation v. Attorney-General, Abia State (supra); United Spinner Ltd v. CB Ltd [2001] 14 NWLR (pt. 723) 195, 212-213; University Press Ltd v. I.K. (Nig.) Ltd [2000] 4 NWLR (pt. 654) 584, 595. He urged the Court to resolve in favour of the appellants.

RESPONDENTS’ SUBMISSIONS

For the respondents, it was submitted that the lower Court was right in holding that the Rules of Professional Conduct [“RPC”] did not apply to the respondents who were not Legal Practitioners.

​It was, further, posited that a cursory look at the twelve reliefs sought by the appellants shows that they are all premised on the applicability of the Rules of Professional Conduct on the respondents. He pointed out that, exhibit A, the newspaper advert, read in conjunction with the relevant provisions of the Rules of Professional Conduct provided insufficient catalyst to arouse any grouse against the respondents.

Learned counsel, further, argued that the learned trial Judge, having come to the conclusion that there was no live issue, after examining the reliefs as set out by the appellants, did not stray outside the boundaries of the law. Thus, that the lower Court was of a similar mind when it came to the conclusion that exhibit A was not a sufficient catalyst to arouse any grouse against the respondents. To buttress these points, reliance was placed on the following cases Amalgamated Trustees Ltd v. Associated Discount House Ltd [2007] LPELR-454 (SC); Malle v. Maigari and Ors (2019) LPELR-47183 (CA).

He maintained that the appellants’ submissions are further weakened by the nature of case they set up at the trial Court. The appellants’ case, he explained, was brought by way of Originating Summons. Under that procedure, no witnesses are called or evidence led. As such, the case of the appellants was either academic or not. There was nothing to pre-judge.

​Finally, it was opined that the lower Court did not err by proceeding to give its views on the substantive suit. Heavy reliance was placed on the cases of Habeeb and Anor v Attorney-General, Federation and Ors [2012] LPELR-15515 (SC); Adah v N.Y.S.C [2004] 13 NWLR (pt. 891) 639, 643; Katto v C.B.N [1991] 9 NWLR (pt. 214) 126, 149. He urged the Court to resolve this issue in favour of the respondents.

RESOLUTION OF THE ISSUE

The appellants have raised a lot of dust on the fact that the lower Court’s pronouncements prejudged the substantive suit in an interlocutory appeal. I find it necessary to reproduce the relevant portions of the judgment of the lower Court in contention.

​At page 100 of the record, the lower Court found as follows:

“In my humble view, I do not think the advert is a sufficient catalyst to arouse any grouse against the respondents by the appellants or anyone at that. Furthermore, the respondents not being legal practitioners are not subscribers to the rules of professional conduct for legal practitioners; hence the rules have no bearing to and cannot be enforced against them. Indeed, if in the event of any Legal Practitioner responding to the respondents’ advert to render the required services, such legal practitioner would be seen to have willingly and by choice done so and in the absence of any fraud or unlikely coercion, there cannot be a cause of action against the respondents.”

​It is indeed the law that, in dealing with an interlocutory proceeding, the Court should avoid pre-judging the substantive suit, Odutola Holdings Ltd and Ors v. Ladejobi [2006] 12 NWLR (pt. 994) 321; Barigha v. PDP and 2 Ors [2012] 12 SC (pt. v) 1; Agwu and Ors v Julius Berger (Nig.) Plc [2019] LPELR-47625 (SC); CIL Risk and Asset Management Ltd v. Ekiti State Govt. and Ors [2020] LPELR-49565 (SC).

It is never proper for a Court to make pronouncements in the course of the interlocutory proceedings on issues capable of prejudging the substantive suit. However, should this rule apply where there is, indeed, no substantive suit? I think not.

​It is manifest that the case before the learned trial Judge had hardly taken off because a preliminary objection was made challenging the jurisdiction of the Court to entertain the matter. The respondents filed a notice of Preliminary Objection that the trial Court lacked the jurisdiction to hear and determine the action. The objection was predicated on the grounds that the appellants have no locus standi to institute the action and that the first respondent is not a juristic person.

Once the preliminary objection was determined by the trial Court, whatever error conceived to have been made as regard the decision ceased at that point to be an issue, that is, a live issue in respect of which the appellants can still feel aggrieved.

I agree with the submissions of learned counsel for the respondents that, where the lower Court declines jurisdiction on an appeal before it, it is better for that, not being the final Court, to hand down a decision on the substance of the case to enable this Court give consideration to the substance where it may wish to overrule the lower Court’s decision to decline jurisdiction, Stowe v Stowe [2012] 9 NWLR (pt. 1306) 450; Angadi v. P.D.P and Ors. [2018] LPELR-44375 (SC). There, mere consideration of the substance of a case does not automatically amount to pre-judging a purported substantive suit. Issue two is also resolved in favour of the respondents.

ISSUE 3

Whether the lower Court was right in not reversing the trial Court’s ruling on the basis that the trial Court acted suo motu and raised and considered the substantive suit as academic without affording the appellant’s the opportunity of being heard?

It was the position of the appellants that the trial Court was in error in basing its ruling on an issue which it raised suo motu and without affording the parties, particularly, the appellants, the opportunity of being heard. He added that the lower Court erred in law when it failed to reverse the trial Court’s ruling.

It was further submitted that the trial Court raised and considered the issue of the appellants’ suit being academic, suo motu, without giving the appellants an opportunity to be heard on those issues before its determination on same, adding that this was indeed the fulcrum upon which the trial Court reached its decision.

The appellants, further, pointed out that although the respondents neither grounded their preliminary objection on the “academic issue” nor argued same, the trial Court, nevertheless, struck out the suit on the ground that it was academic.

​Learned counsel, also, contended that contrary to what the two lower Courts had held, the suit embodies “live issues” that when decided, would affect the parties, vested rights and interests, particularly the appellants, Attorney-General, Federation v. A.N.P.P [2003] 18 NWLR (pt. 851) 182, 215. He urged the Court to resolve this issue in favour of the appellants.

RESPONDENTS’ ARGUMENTS

Learned counsel for the respondents, on his part, pointed out that this issue had been canvassed at the lower Court, which Court held, inter alia, that it failed to see how the learned trial Judge can be indicted for raising any issue suo motu.

It was further submitted that just as the lower Court held, the phrase “live issue” within the peculiar circumstances of the instant case was not an issue of law or innovation which should necessitate for the trial Court to call on counsel for special consideration of.

Learned counsel argued that, to hold otherwise, would be to open an un-closeable door of opportunism that will make every phrase used by the jurist, a potential ground of appeal and make writing judgments, a long walk on miry clay.

​It was further posited that where it is obvious that the Court lacked the competence and, by extension, the jurisdiction to entertain a case, the Court has the necessary vires to so hold. He urged the Court to resolve this issue in favour of the respondents.

RESOLUTION OF THE ISSUE

This issue reminds of the dictum of this Court in Sodipo v Lemminkainem OY and Anor[1986] 1 NWLR (pt. 15) 220, According to the Court:

“A Judge exists to determine disputes and examine with due care and microscopic senses all matters before him in his pursuit of justice.”

This dictum, to my mind, is a complete answer to the criticism by the appellants to the way and manner the learned trial Judge resolved the preliminary objection. In the first place, the question of no “live issue” found in the suit, was not raised by any of the parties in arguing the preliminary objection.

​A trial Judge, however, is within his rights to properly inform himself of a defect in a suit, either with or without external intervention, because it touches directly on the competence of the suit and hence the jurisdiction to entertain it as such. Thus, the established principle that the issue of jurisdiction can be raised at any stage of the proceedings, at the instance of either the parties or by the Court suo motu, Amale v. Sokoto Local Govt and Ors. [2012] 1 SC (pt. IV) 45; Odiase v. Agho [1972] 1 All NLR (pt.1) 170; Petrojessica Entreprises Ltd v. Leventis Technical Co. Ltd, [1992] 2 NWLR (pt. 244) 675.

Where however, the issue of jurisdiction is raised, it should be examined in all ramifications. It should not be compartmentalized and subjected to piecemeal examination and treatment, Oloba v Akereja [1988] 3 NWLR (pt. 84) 508.

The very many faces of jurisdiction should come under the searchlight and be pronounced upon, notwithstanding that it might not have been brought to the attention of the Court.

Once the Court finds that it lacks jurisdiction over the matter before it, it has a duty to put an end to the proceedings, Sken-consult (Nig.) Ltd v Ukey [1981] 1 SC 6, 25; Adesokan and Ors. v. Adetunji and Ors. [1994] LPELR-152 (SC); Metilelu v. Olowo-Opejo and Anor [2006] LPELR-11598 (SC).

Courts of law in this country assume jurisdiction only on live issues, Madukolu v. Nkemdilim (supra); Lado v C.P.C [2011] 18 NWLR (pt. 1279) 689; Dickson v. Sylva ​[2017] 10 NWLR (pt. 1573) 299; Attorney-General, Kwara State v Alao [2000] 9 NWLR (pt. 671) 84; Atake v Afejuku [1994] 9 NWLR (pt. 368) 379; UB.N Plc v Scpok (Nig.) Ltd [1998] 12 NWLR (pt. 578) 82; Attorney-General, Federation v A.N.P.P [2003] 18 NWLR (pt. 851) 182.

There cannot be said to be a live issue in a litigation if what is presented to the Court for a decision, when decided, cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started.

In the instant case, it would be, in my opinion, the pursuit of great injustice, if the learned trial Judge, discovering the absence of a live issue in the suit, had allowed sleeping dogs to lie.

As regards the appellants’ contention that the interpretation of the rules at an interlocutory stage by the learned trial Judge is an infringement of the appellants’ right to fair hearing, it is my view that this is a total misconception on the part of the appellants.

​The trial Court availed both parties the opportunity to address it on the preliminary objection. It was in the course of determining the preliminary objection, upon the consideration of reasons advanced by both counsel, that it became apparent to the learned trial Judge that the gravamen of the suit itself was devoid of justiciability.

The finding of the learned trial Judge cannot be faulted on this regard. The lower Court, also, in not reversing the ruling of the trial Court, was properly guided and, therefore, cannot be faulted.

ISSUE 4

Whether the lower Court was right to have dismissed the appeal on the basis of ‘non-justiciability and/or lack of locus standi’ notwithstanding, that:

a. The trial Court did not strike-out the substantive suit on the basis of non-justiciability and/or lack of locus standi;

b. None of the Grounds of Appeal challenged the ruling on the basis of the justiciability of the substantive suit and/or lack of locus standi;

c. The issue of ‘non-justiciability and/or lack of locus standi’ did not arise in the appeal and could not have been distilled from any of the grounds of appeal.

The appellants, in this issue, contended that an appellate Court is bound to limit its determination of a pending appeal on issues distilled from the underlying Grounds of Appeal legitimately challenging the decision of the subordinate Court, Ikweki v. Ebele [2005] 11 NWLR (pt. 936) 397 (SC); Iriri v. Erhurhobara [1991] 2 NWLR (pt. 172) 252 (SC); Edem v. Canon Balls Ltd [2005] 12 NWLR (pt. 938) 27 (SC); Usiobaifo v. Usiobaifo [2005] 3 NWLR (pt. 913) 665 (SC).

Learned counsel explained that the lower Court dismissed the appellants’ appeal on the basis of issues that were neither covered in the Grounds of Appeal nor distilled therefrom. In doing so, the lower Court considered the non-justiciability of the appellants’ substantive suit and their locus standi which were not even the anchor points upon which the trial Court struck out the substantive suit.

The appellants, further, submitted that what the lower Court did in this regard was improper and ipso facto an error, shouting for a reversal. He, therefore, urged the Court to resolve this issue in favour of the appellants.

RESPONDENTS’ SUBMISSIONS

Contrarily, learned counsel for the respondents submitted that the issue of justiciability of the action and locus standi were properly laid out before the lower Court.

Thus, the decision of the lower Court on them is, consequently, good in law.

It was further posited that the portion of the decision complained of is, at best, merely an obiter dictum and cannot overturn the fuller judgment of the Court, Ogbolonsingha and Anor v. Bayelsa State IEC and Ors [2015] LPELR-24353 (SC); Osuagwu v. Emezi and Ors (2013) LPELR-22030 (CA). He urged the Court to resolve this issue in favour of the respondents.

RESOLUTION OF THE ISSUE

It is my observation that, in this appeal, the appellants appear to be speaking from both sides of the mouth. In one breath, the appellants want this Court to fault the decision of the lower Court for not reversing the trial Court’s ruling on the basis that the said Court acted suo motu and raised and considered the substantive suit as “academic” without affording the appellants the opportunity of being heard.

​In other words, that the ruling of the trial Court was not decided based on the ground of objection that the appellants lacked the locus standi to institute the action, as raised by the respondents. in another breath, it is also urged on the Court to reverse the decision of the lower Court which dismissed the appellants’ appeal on the basis of non-justiciability and/or lack of locus standi.

Learned counsel must be reminded that a party cannot blow hot and cold or approbate and reprobate but must be consistent in his case, Ngige v. Obi [2006] 14 NWLR (pt. 999) 1; County and City Bricks Development Co. Ltd v. Hon, Minister of Environment Housing and Urban Development and Anor [2019] LPELR-46548 (SC); Attorney-General, Rivers State v. Attorney-General, Akwa-Ibom State [2011] LPELR-633 (SC). It is unacceptable in law.

To my mind, the appellants’ contention in this issue appears to be saying that were it to be that the trial Court had struck out their suit for want of locus standi and not for want of a live issue, the decision would have been correct. Again, it is ironic that the appellants still want to fault the lower Court for doing just what they criticize the trial Court for failing to do.

​In this appeal, the main action was commenced by way of Originating Summons. Under this procedure, pleadings are not filed nor witnesses called. It is, generally, heard on affidavit evidence deposed to in support and in opposition, with documents exhibited, Famfa Oil Ltd v. Attorney-General, Federation and Anor [2003] LPELR-1239 (SC); JEV and Anor v. Iyortyom and Ors[2014] LPELR-23000 (SC); Zakirai v. Muhammmad and Ors [2017] LPELR- 42349 (SC).

As earlier stated, in deciding an interlocutory application, a Court should endeavor to limit itself to the dispositions made in the affidavit evidence before it. Thus, having regard to the nature of the originating process, and there being nothing but documentary evidence placed before the lower Court, the lower Court was in a good position to examine the entire affidavit evidence and the other documents placed before the trial Court in determining whether the ruling of the trial Court with regards to the preliminary objection was correct, Chief Agbaisi and Ors v Ebikorefe and Ors [1997] 4 SCNJ 147, 160; Agbahomovo and Ors v. Eduyegbe and Ors. [1999] 3 NWLR (pt. 594) 170; Jikantoro and Ors, v. Dantoro and Ors. [2004] 5 SCNJ 152, 177; Agbareh and Anor v. Mimrah and Ors, [2008] LPELR-43211 (SC).

​It is apposite to state here that it has been established by sufficient authority that an appellate Court is only interested in the correctness of a judgment/ruling or conclusion reached and not with the correctness of the reason by which the Court arrived at its decision, unless it has occasioned a miscarriage of justice, Taiwo and Ors v Sowemimo [1982] 5 SC 60, 74-75; Ibuluya v Dikibo [2011] 3 WRN 1, 23; Agbeje v Ajibola [2002] 2 NWLR (pt. 750) 127; Hillary Farms Ltd. v MV Mahtra[2007] 14 NWLR (pt. 1054) 210. In the absence of this, as in the instant case, this Court need not interfere therewith.

In view of the foregoing, I have no hesitation in dismissing this appeal for lacking in merit. The judgment of the lower Court delivered January 15th, 2007, is hereby affirmed. Appeal dismissed; no order as to costs.

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SC.141/2007

Usman V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM MUHAMMED MUSA SAULAWA, J.S.C. 

The present appeal is against the judgment of the Court of Appeal, Akure Judicial Division delivered on December 6, 2018 in appeal no. CA/AW282C/2016. By the judgment in question, the Court below coram Danjuma, Abdullahi and Mahmoud, JJCA, dismissed the Appellant’s appeal and affirmed the judgment of the Ondo State High Court, thereby convicting and sentencing the Appellant to death for the offences of conspiracy and armed robbery, contrary to Sections 1(2) (a) and 6(b) of the Robbery and Firearms (Special Provisions) Act, CAP. R 11, volume 14, Laws of the Federation of Nigeria, 2004.

BACKGROUND FACTS

It was on January 15, 2014 when the Appellant was arraigned before the trial High Court of Ondo State upon a two count charge of conspiracy to commit armed robbery and armed robbery, to wit:

COUNT 1

ARMED ROBBERY, Contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11, Vol. 14, Laws of the Federation of Nigeria, 2004.

COUNT II

​ARMED ROBBERY: Contrary to and punishable under Section 1 (Special Provisions) Act, Cap R. 11 Vol. 14, Laws of the Federation of Nigeria, 2004.

Not unnaturally, the Appellant pleaded not guilty to both counts of the charge. The trial proceeded in earnest. At the conclusion of the said trial, the learned counsel addressed the Court, thereby resulting in adjourning the case for judgment.

On 30/4/2016, the trial Court delivered the vexed judgment to the conclusive effect:

The concomitance of my conclusion is that the prosecution proved the charges of conspiracy to commit armed robbery and armed robbery leveled against the defendant is that it is incumbent on me to pronounce the defendant is guilty as charged and therefore hold that the defendant, Abdurahim Usman is guilty of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special provisions) Act and for armed robbery contrary to Section 1(2) (a) of the same Robbery and Firearms (special provisions) Act. He is therefore convicted as charged.

See pages 36-50 of the Record of Appeal.

On 20/7/2016, the Appellant filed a notice of appeal, thereby challenging the conviction thereof by the trial Court. On 06/12/2016, the Court below delivered its judgment to the conclusive effect:

I find no reason in the circumstances to disturb the judgment of the trial Court. This appeal lacks merit and it fails. I accordingly dismiss it. Consequently, I affirm the judgment of the trial Court delivered on the 28th day of April, 2016.

See pages .124-141 Record.

The Appellant’s notice of appeal, filed in the Court below on 18/12/2018, is predicated upon two grounds, thereby urging this Court to allow the appeal and in consequence thereof, grant the following two reliefs:

(i) An order setting aside the judgment delivered by the lower Court on 6th December, 2018 and conviction of the Appellant.

(ii) An order discharging and acquitting the Appellant of the offences of robbery and conspiracy to commit armed robbery.

See pages 152 – 154 of the Record.

On February 24, when this appeal came up for hearing, the learned counsel had the opportunity of addressing the Court and adopting the argument contained in the respective briefs thereof, thereby warranting this Court to reserve Judgment to today.

The extant Appellant’s brief of argument was settled by OA Ojo Esq., on 10/7/2020, albeit deemed properly filed and served on 17/02/2021.

At pages 5 -6 of that brief, three issues have been couched for determination:

(i) Whether the lower Court was right to ascribe probative value to Exhibits C and D and affirm the Appellant’s conviction on the basis that both were confessional statements, by which the Appellant admitted committing the offences charged (Ground 4 of Amended Notice of Appeal).

(ii) whether the lower Court was right to regard the discrepancy in the date of the alleged commission of the offences and that of the Appellant’s arrest as a mere mistake. (Grounds 1, 2, 3 and 5 of the Amended Notice of Appeal)

(iii) Whether there was any justification upon which the lower Court could infer that the Appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery (Ground 6 of the Amended Notice of Appeal).

The issue 1 is canvassed at pages 6-9 of the brief, to the effect that the reasoning of the trial Court at page 47 of the record regarding Exhibits C & D is wrong. That it’s of no moment that the Appellant denied making the statement, or that it is a fact to be resolved by the Court. See R. VS. IGWE (1960) 5 FSC.

It was submitted, that the Appellant was resolute that he did not make Exhibits C & D.

The Court is urged to resolve issue 1 in favour of the Appellant, as reliance on 1D 1 and 1D2(Exhibits C& D) by the two Courts below, was legally wrong.

The issue no. 2 was canvassed upon at pages 9-14 of the brief. In a nutshell, it is submitted that it was not the responsibility of the two Courts below to propound or offer any justification for the discrepancy in the testimonies of the witnesses, as demonstrated by the Court below at page 137 of the record. Secondly, that the reasoning and conclusion of the Court below was founded on extraneous consideration. See ELIAS VS. OMO-BARE (1982) 13 NSCC 92, et al.

The Court is urged to so hold, and resolve the issue no. 2 in favour of the Appellant.

The issue no. 3 is argued at pages 14-16 of the brief, to the effect that the circumstances of this case do not, in any way, justify a conviction for the offences of armed robbery, let alone conspiracy to commit armed robbery. Exhibits 1D1 and 1D2 were clearly inadmissible to convict the Appellant; there was no positive identification of the Appellant as the alleged offender. Therefore, the prosecution has failed to prove its case beyond reasonable doubt against the Appellant.

The Court is urged to so hold, and resolve the issue 3 in favour of the Appellant.

On the whole, the Court is urged to allow the appeal.

On the other hand, the Respondent’s brief was settled by Shehu Wada Abdullahi Esq. on 19/11/2020, albeit deemed properly filed on 17/02/2021. It spans a total of 14 pages. At page 4 thereof, a sole issue has been couched for determination:

3.1 Whether there is any exceptional reason to set aside the decision of the trial Court and the concurrent decision of the lower Court of Appeal on the conviction and sentencing of the Appellant.

It is submitted in the main, that it is clearly shown on the records, that there are no good reasons for this Court to disturb the concurrent decision of the lower Court. See IDAM VS. FRN (2020) LPELR-49564 (SC) @ 10 paragraphs C-E, KURE VS. COP (2020) LPELR-49378(SC) @ 29-31 paragraphs F-A.

Further submitted, that other than Exhibits C and D, the quantum of the evidence before the trial Court was substantial to sustain the conviction of the Appellant. And that the prosecution through the PWI, PW2, PW3 and PW4 and Exhibits A and A1 established that the Appellant was the offender.

The Court is thus urged upon to hold, that the trial Court and the Court below were right to hold that the Appellant was guilty of conspiracy as charged.

Conclusively, the Court is urged to dismiss the appeal and affirm the concurrent decision of the Court below convicting and sentencing the Appellant.

Having accorded an ample regard upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-avis the record of appeal, as a whole, I am appreciative of the fact that the Appellant’s three issues are very much germaine to the notice of appeal. I accordingly adopt them, mutatis mutandis, for the determination of the appeal, anon.

ISSUE NO. 1

The first issue, as copiously alluded, hereto above, raises the question of whether the Court below was right to ascribe probative value to Exhibits C and D, thereby affirming the Appellant’s conviction on the basis that both exhibits were confessional statements by which the Appellant admitted committing the offences as charged. The issue is distilled from ground 4 of the Amended Notice of Appeal.

As alluded heretofore, the Appellant’s grouse under issue I, in the main, is to effect that Exhibits C and D (Appellant’s confessional statements) were only tendered for identification purpose and marked as 1D1 and 1D2, respectively.

Indeed, the circumstances surrounding the tendering of the Appellant’s two confessional statements in question and the admission thereof as Exhibits E and D, are not far-fetched. It is obvious on the record, that the Appellant was arraigned before the trial Court on 15/01/2014. Consequent upon the plea of not guilty thereof, the trial commenced in earnest, without much ado. Two witnesses called by the prosecution testified as PW 1 (Fatima Yusuf) and PW 2 (Isiaka Jammiu). Both witnesses were not cross-examined by the prosecution.

​

However, the third prosecution witness (PW3) Police, Corporal Amas Dunbaiji Nimighan (erroneously tagged “PW4”) did not have a ‘smooth sail’ like the PW 1 and PW2 who testified before him.

In the course of his examination-in-Chief, Corporal Nimighan testified that he was made the IPO in the case. He said he recorded what the Defendant (Appellant) told him. The Appellant signed and he too counter-signed that statement.

Consequent upon the identification of the Appellant’s statement in-question, the prosecution counsel, Mrs. Adeyemi Tuki, sought to tender it. However, the Defence counsel vehemently objected thus:

Mr. Abdulkadir:

We are objecting on the ground that the statement was not given voluntarily.

The following scenario then registered itself:

Court:- A trial-within-trial will be conducted.

Mrs. Adeyemi- Tuki:- No. objection.

Court:- The trial-within-trial is adjourned to 27th May, 2014.

However, from 16/4/2014 when the case was adjourned for trial-within-trial, it was only on 18/02/2016 that it came up for TWT. On the said date, the PW 1 (Amos Dunbaiju Nimighani, now a Police sergeant) testified but was not cross-examined by the Defence counsel, Bamisele Esq.

Contrariwise, the Appellant equally testified as DW1. However, in the course of his testimony, under the T W T, the Appellant (DW1) stated:

PW1 and two other Police officers started to beat me. I was wounded. I was then taken to the statement room. PW 1 said I should sign a statement I asked him to read to me. He beat me. I asked him that I should be allowed to write my statement as I did at Owo. They refused. I later signed the document after the beating. The document shown to me was not the one I was forced to sign did not sign the document.

It was consequent upon the Appellant’s evidence under the TWT aforementioned, that the trial Court made a u-turn and thereby held:

“Court – The stand taken by the defendant when he said the statement shown to him was not made by him and that he did not sign it makes the trial-within-trial untenable, although he claimed initially that he was forced to make the statement which necessitated the trial-within-trial. His change of mind which he has the right to do has made the trial-within-trial untenable. The question whether he made the statement and signed it is a question of fact. This will be determined at the judgment stage. The document meanwhile should be marked 1D2. It will be marked as exhibit or rejected as the case may be, later while writing the judgment. The main trial will now resume.”

See pages 14-16 of the Record.

The trial Court accordingly proceeded with the trial, and at the conclusion of which delivered the vexed judgment on the 28/4/2016 in-question. Most specifically, at page 47 of the Record the trial Court held, inter alia:

“PW3 said that he took the statement of the defendant which he signed and PW3 then counter-signed. The statement was tendered as an exhibit.

The defendant objected on the ground that he did not make any statement to the defendant (sic). I then said that the document should be marked 1DI and that I will determine at the judgment stage whether he made the statement or not. I think I should have admitted the document straight because on the authority, the defendant is merely claiming that he knew nothing about the document which is a question of fact to be resolved by the Court. See R. V. IGWE (1960) 5 ESC. 55; THE STATE V. SALAWU (2011) 8NWLR (pt. 1279) 580 @ 625 B-D. In view of this, the document is to be marked Exhibit C. The same scenario played out when the statement of the defendant which PW4 claimed to have recorded from him was tendered. He claimed not to have signed the document which was brought to Court.

… I should have straight away marked the document as an exhibit in the circumstances but unfortunately I said it should be marked ID2. The document marked ID2 should be marked Exhibit D.”

​

On its part, the Court below in the judgment thereof (pages 124-150, especially @ 144 of the printed record) held:

“When Exhibits C&D were being sought to be tendered, the appellant only said he did not make it He did not make any direct allegation of lack of voluntariness that he was tortured, threatened, induced etc. Yet the trial judge conducted a trial within trial (another surplusage) and admitted the statements in evidence as Exhibits C and D. The learned counsel made heavy weather about the fact the appellant retracted his confessional, statement. A confessional statement does not become inadmissible because the accused retracted the confession on Oath. Nor can it be regarded as unreliable just because of a retraction. The proper consideration always is that the denial or retraction is taken into consideration in deciding the weight to be attached to it. See DIBIE VS. STATE (2007) 9 NWLR (pt. 1038, 30.”

​

The law is well settled, beyond per adventure, that where (as in the instant case) the defendant makes an out right denial of the statement sought to be tendered in evidence by the prosecution, the denial (objection) is tantamount to a retraction of the statement. Thus, such a statement is admissible and reliable without the need of resorting to a trial-within-trial, as its voluntariness is not in issue. See IBEME VS. THE STATE (2013) 10 NWLR (pt. 1362) 333.

In the circumstances, the first issue ought to be, and it is hereby resolved against the Appellant.

ISSUE NO. 2

The second issue raises the question of whether or not the Court below was right to regard the discrepancy in the date of the alleged commission of the offences, and that of the Appellant’s arrest as a mere mistake. The second issue is distilled from grounds 1,2,3 and 5 of the Amended Notice of Appeal.

At page 46 of the record, the trial Court made some findings, thereby alluding to the discrepancy in the date the offences were allegedly committed and on which the Appellant was supposedly arrested. Allegedly, the trial Court dismissed the discrepancy as mere mistake. According to the trial Court:

There is no doubt that the discrepancy is nothing but a mistake and should not affect the case of the prosecution in any significant way. PW1, PW2 and PW3 all talked about one robbery in which the defendant was a participant.

It is not possible for the defendant to be in the Police station at 3am of 18th June, 2013 when PW1 and PW3 had not caught him and when he was not caught until I am on the 19th June, 2013.

On the part thereof, the Court below made a finding on the issue of the discrepancy in question at page 137 of the record:

“I am unable to see any contradiction in the evidences of PW1 and PW2 as to the date or in any other particular… If one looks closely at the two dates, there is technically, really no discrepancy. From the testimony of PW1 and PW2, this incident happened around 1.3am on the 19th of June. This is English culture that any past 12 midnight is the next day. In most African cultures that would still be explained as the night of the 18th.

Therefore 3.20am of 18th is actually the same thing as the early hours of the 19th since it is past midnight… I do not agree with the appellant’s learned counsel that it was wrong for the trial judge to explain this minor discrepancy in the way he did, that perhaps PW3 made a mistake. This is especially is so insignificant that it does not affect the prosecution’s case or indeed the opinion of the trial judge.”

​

In my considered view, by virtue of the circumstances surrounding the case vis-a-vis the evidence on record, the Court below was justified and correct in upholding the very apt findings of the trial Court in regards to the discrepancy as to the date on which the offences were allegedly Committed, and the date on which the Appellant was arrested.

Indeed, it is evident on the face of the record, that the Appellant was arrested at the scene of the crime. Both the PW 1 and PW2 had the misfortune of being victims of the armed robbery in-question. They were both present at the scene of crime at the very material time the Appellant was apprehended. Neither the PW1 nor the PW2 was shaken when giving evidence about the identity of the Appellant as the very culprit apprehended at the scene of crime, and date the offence was committed. The PW1, most especially, testified under oath at the trial Court on 15/01/2014, inter alia, thus:

“I am Fatima Yusuf. I live at 11, Ojo Ikoko, Owo. I am a trader. I know the defendant. I remember 19th June, 2013. I live in a room and parlour at the address stated above. At night while I was asleep I heard a voice that said lie down lie down. This was around 1.30am. I left the room where I was. My son Jamiu slept in the parlour where I came to the parlour I saw three men on my son. There was electricity that night. The defendant was one of the three men that was on my son. He was the one that pointed a gun at my son, Jamiu. I told them to calm down as I had money to give them. I told them not to hurt my son. The two of the robbers came with me to the room. The defendant was still with my son. The two had face mask on. I did not see their face(sic).”

In continuation of the testimony thereof, the PW1 stated that the Appellant was actually apprehended at the scene of crime:

“As the commotion was going on in my apartment my neighbour who was living at the upstairs of my apartment heard what was going on. She raised alarm that thieves were in my apartment. This caused the neighbours to move towards my apartment. The two who were with me were the first to leave my apartment. The defendant backed as and then pointed his gun toward the direction where the neighbours were coming from. I summoned courage and I grabbed the defendant from the back. I held unto him until help came and we were able to suppress the defendant. The defendant was bound with rope and the Police was called.”

Under cross-examination by the defence counsel, the PW 1 had this, inter alia, to say:

“I did not know the defendant before the day I caught him in my house…when I grabbed the defendant and we both fell down, I saw that the defendant had hand glove and there was a long scarf beside him. I would not know whether he used the scarf as a disguise during the robbery.”

See pages 8-9 of the Record.

The PW2 under Oath equally testified narrating his direct encounter with the Appellant, thereby corroborating the evidence of the PW 1 regarding the date of the commission of the armed robbery and the resultant apprehension of the Appellant at the scene of the crime. According to the PW 2:

“I know the defendant. I remember 19th June, 2013 around 1.30am. I was sleeping in my mother’s parlour when the door to the apartment was broken. I look up and I saw three men with me. They said they will kill me, the defendant pointed gun at me.”

The PW3 also testified corroborating the evidence of both the PW1 and PW2 regarding the Appellant’s arrest at the scene of crime on 19th June, 2013.

The Court below in the vexed judgment resolved the alleged discrepancy regarding the date on which the armed robbery was commissioned, and when the Appellant was apprehended at the scene of crime on 1-9/6/2013, in favour of the prosecution.

I am unable to appreciate, let alone uphold the Appellant’s preposterous submission, to the effect that the inconsistencies and discrepancies highlighted cast doubt in the prosecution’s case, that the Appellant was the one arrested at the scene of crime on 19/6/2013 and time (1.30am) in-question.

In the circumstances, the second issue is hereby resolved against the Appellant.

ISSUE NO. 3

The third issue raises the question of whether there was any justification upon which the Court below could infer that the Appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery.

In the instant case, the evidence of the PW1 and PW2, who were the unfortunate victims and indeed eye witnesses of the said armed robbery, was direct and unequivocal that the Appellant in company of other persons (still at large) broke into their apartment and robbed them on 19/06/2013. The trial Court in its judgment found as a matter of fact that:

“The evidence before the Court is that the defendant in company of two others went to the house of PW1 in the early hours of 18th June, 2013, and they robbed PW1. The fact that three of them went to the place to rob is evident of conspiracy. They must have agreed to act the way they acted. The agreement is conspiratorial. The defendant being part of it is guilty of conspiracy as charged.”

On its part, the Court below at page 141 of the record upheld the foregoing findings of the trial Court, thus:

“I am in agreement with the trial judge that he properly made his finding from the evidence before the Court which supports his inference of conspiracy. I agree with the evidence of PW1 and PW2 who were eye witnesses, who caught and held the appellant down until the Police patrol team which was summoned armed and took him away in such a quality that without doubt in the words of Achike as quoted by Kekere-Ekun, JSC in the case of YAKUBU V. STATE (2014) 8 NWLR (pt. 1408, III: Irresistibly compels the Court to make an inference s to the guilt of the accused.”

I think, I cannot agree more with the foregoing concurrent finding of the Court below, which said finding is cogent, unassailable and duly supported by the circumstances surrounding the case vis-vis-vis the evidence an record.

In the circumstances, the third issue equally ought to be, and same is hereby resolved against the Appellant.

​

My Lords, it’s indeed settled, that if a Court came to a decision which no reasonable Court or tribunal applying its mind to proper considerations and giving itself proper directions can come, then an appeal Court having jurisdictional competence to entertain an appeal from such a decision only on a point of law, would reverse such a decision. The reason being that, the position is exactly the same as if the Court had to come to a decision of fact that no evidence whatsoever supports, which must be considered erroneous in law, and equally perverse. See NAFIU RABIU VS. KANO STATE (1980) LPELR-2936 (SC) per Idigbe, JSC @ 57 paragraphs A-E.

In the case of BRACEGIRDLE VS. OXLEY (1947) 1 ALLER 126 (a decision of the Court of 5 justices, cited with approval by this in NAFIU RABIU VS. KANO STATE, supra), it was aptly held:

“In this Court, we only sit to review the justices’ decision on points of law, being bound by the fact which they find, provided always that there is evidence on which the justices can come to the conclusions of fact at which they arrive.”

Hence, having effectively resolved all the three issues raised by the Appellant against him, there is no gain-saying the fact that the instant appeal fails, and it is hereby dismissed by me.

The concurrent judgment of the Court of Appeal, Akure Judicial Division, delivered on 06/12/2018, in appeal no. CA/AW282C/2016, is hereby affirmed by me.

---

SC.61C/2019

Universal Properties Ltd V. Pinnacle Commercial Bank & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal Lagos Division delivered on 14th of April, 2008 wherein the lower Court dismissed in limine the appeal filed by the Appellant which was pending before the said Court for want of diligent prosecution. The Appellant’s brief was not before the Court although the Court had granted the Appellant extension of time to file the said brief. A summary of the facts leading to this appeal are as stated hereunder.

​The 1st Respondent (now under liquidation by the Nigeria deposit Insurance Corporation) as plaintiff on 14th July, 1992 commenced an action at the High Court of Lagos State against the 2nd and 3rd Respondents as 1st and 2nd Defendants respectively by a special endorsed Writ of Summons claiming the sum of N5,417,746.43 (Five million four hundred and seventeen thousand, seven hundred and forty-six naira, forty-three kobo only), interest on the said sum at 34% until judgment and thereafter until satisfied, resulting from a credit facility which it extended to the 1st Defendant and was guaranteed by the 2nd Defendant. Judgment was given in favour of the 1st Respondent but was not satisfied. The 1st Respondent, because of the inability of the 1st and 2nd Defendants (now 2nd and 3rd Respondents) to satisfy their indebtedness, applied and sold the immovable properties of the 3rd Respondent known as 12A and 12B Ladipo Oluwole Street, Lagos, titled number No. 0646.

The Appellant and 4th Respondent, upon becoming aware of the existence of the judgment including steps taken by the 1st Respondent to levy execution upon the properties of the 3rd Respondent, applied and were joined as parties to the suit. The 4th Respondent claimed it had an interest and mortgage over the property.

​Subsequent upon being joined, the Appellant applied to the trial Court for extension of time to apply to set aside the sale of their alleged properties by the 1st Respondent in the execution of the judgment against the 2nd and 3rd Respondents, an order setting aside the sale of the said properties and certificate of sale issued pursuant to the sale. The aforestated application was refused and dismissed by the learned trial Judge on 6th October, 2000. The Appellant being dissatisfied with the aforesaid ruling of the trial Court, appealed against the said decision to the Court of Appeal, Lagos Division.

At the Court of Appeal, the Appellant filed a motion on notice dated 5th June, 2002 for leave to file additional grounds of appeal, extension of time to bring in a supplementary record of appeal, an order deeming the supplementary record of appeal already compiled and served as duly filed and served, extension of time to file the Appellant’s brief of argument and an order deeming these processes as duly filed and served.

The Court of Appeal on 18th January, 2005 heard the Appellant’s motion dated 5th June, 2002 and extended the time allowed the Appellant to bring in the supplementary record, leave to file additional grounds of appeal which notice should be filed within fourteen (14) days from the date of Court order together with the Appellant’s brief of argument.

​On 25th May, 2006, the Appellant filed a motion on notice dated 22nd May, 2006 praying the lower Court for extension of time to comply with the orders made in favour of the Appellant on 18th January, 2005. When this motion on notice came up for hearing on 3rd July, 2006 the lower Court observed that the 2nd and 3rd Respondents thereat had not been served. The learned counsel for the Appellant applied to withdraw the motion which was granted by the Court below.

On 30th January, 2007, the 5th Respondent filed a motion on notice dated 25th January, 2007 urging the Court to dismiss the appeal for lack of diligent prosecution by the Appellant. The learned counsel for the Appellant filed a counter affidavit to oppose the said motion.

On 25th September, 2007, the Appellant filed an application dated 24th September, 2007 praying the Court to further extend the time within which to file additional grounds of appeal, Appellant’s brief of argument and to deem the processes filed as properly filed. The Appellant also sought to substitute the 1st Respondent with its liquidator – the Nigeria Deposit Insurance Corporation (NDIC) and also Spring Bank Plc for the 4th Respondent respectively. This motion was however not served on the 2nd 3rd and 4th respondents and was adjourned to 16th October, 2007 for hearing.

​At the hearing of the motion on 14th April, 2008, the Appellant again, applied to withdraw its motion dated 24th September, 2007, and filed on 25th September, 2007. The other parties did not object to the Appellant’s application to withdraw the said motion. The said prayer was granted by the lower Court and the motion for further extension of time was struck out.

Thereafter, the learned counsel for the 5th Respondent applied to the Court to be allowed to move the pending motion to dismiss the appeal for lack of diligent prosecution. The said motion was brought pursuant to Order 17 Rule 10 of the Court of Appeal Rules 2007. The lower Court acceded to the application of the learned counsel for the 5th Respondent. After the motion was successfully moved, the Court below granted the prayer by invoking the provision of Order 17 Rule 10 of the Court of Appeal for want of diligent prosecution.

Dissatisfied with the decision of the Court below, the Appellant filed Notice of Appeal on 12th May, 2008. The said Notice of Appeal has three grounds out of which the Appellant has distilled two issues for determination to wit:-

1. Whether in the circumstances of the appeal, the decision contained in the ruling of the Court of Appeal dismissing the appeal for want of prosecution was properly made under Order 17 Rule 10 of the Court of Appeal Rules, 2007,
2. Whether in the circumstances of the appeal, the dismissal of the appeal in limine by the Court of Appeal did not amount to denial of fair hearing to the Appellant.

For the 1st Respondent, its learned counsel, Ogechi Ogbonna Esq, who settled its brief, distilled two similar issues but couched differently as follows:-

1. Whether the Honourable Court of Appeal was right to dismiss the appeal filed by the Appellant for lack of diligent prosecution,
2. Whether the Appellant was granted an opportunity to be fairly heard by the Court of Appeal in the determination of Appeal No. CA/C/394/2011 filed by the Appellant.

The 2nd Respondent’s counsel, Lawrence C. Ohineme, Esq also distilled two issues thus:-

1. Whether the dismissal of the Appellant’s appeal by the Court below on ground of indolent based on Order 17 Rule 10 of the Court of Appeal Rules, 2007 was proper.
2. Whether the Court below denied the Appellant fair hearing in the dismissal of its appeal,

​Mr. Godson C. Ugochukwu, learned counsel for 3rd Respondent also formulated two issues to wit:-

1. Whether the lower Court was right to dismiss the Appellant’s appeal for want of diligent prosecution in line with Order 17 Rule 10 of the Court of Appeal Rules, 2007.
2. Whether the Appellant was not afforded fair hearing by the lower Court before the appeal was dismissed.

Learned counsel for the 4th Respondent, Chinasa Unaegbunam Esq, married the two issues and rendered them as follows:-

“Whether the Court below was right in its decision to dismiss the Appellant’s appeal based on Order 17 Rule 10 of the Court of Appeal Rules, 2007 was proper (sic) given the circumstances of the case including the Appellant’s right to fair hearing.”

In respect of the 5th Respondent, his counsel, Dr. George O. A. Ogunyomi, who settled the brief, adopted Appellant’s first issue and added his own version of issue two as follows:-

“Whether the Court of Appeal in dismissing the appellant’s appeal after the Appellant withdrew its pending application for regularization of its brief of argument and in the absence of any appellant’s brief of argument, did not accord the parties fair hearing.”

​Before taking a closer look at the issues submitted for the determination of this appeal, I propose to entertain the preliminary objection raised by the 1st Respondent against the hearing of this appeal. Notice of preliminary objection was filed on 4th January, 2022 and same is argued on pages 5-8 of the 1st Respondent’s brief filed on 30th October, 2020 but deemed properly filed on 17th November, 2020.

Learned counsel for the Appellant C. O. Ekezie, Esq has filed argument in opposition to the 1st Respondent’s preliminary objection. It was filed on 17th November, 2020. And upon receipt of Appellant’s reply brief, the 1st Respondent filed reply on points of law (on the preliminary objection) on 19th November, 2020.

PRELIMINARY OBJECTION:-

The kernel of the 1st Respondent’s objection to the hearing of this appeal, is that this Court lacks the jurisdiction to hear this appeal commenced by a Notice of Appeal dated 12th May, 2008 and filed same date. The objection, according to learned counsel for the 1st Respondent is based upon the failure of the Appellant to seek for and obtain leave of the Court in line with extant provisions of Section 417 of the Companies and Allied Matters Act, 1990 before filing the appeal against the decision of the Court of Appeal delivered on 14th April, 2008 to dismiss the appeal filed by the Appellant to the Court below. That the said Companies and Allied Matters Act, 1990 was the operative law at the time this appeal was filed.

Learned counsel submitted that the Notice of Appeal filed to commence this appeal is incompetent, being a process filed to commence action against a company undergoing liquidation at the material time but without the leave of this Court first sought and obtained.

​It was further contended that the health status of the 1st Respondent including the fact that the 1st Respondent is under liquidation was fully known to the Appellant, which, prior to the dismissal of the appeal by the Court below, had admitted that the 1st Respondent was since under liquidation in paragraph 3(a) of the affidavit in support of the motion on notice dated 24th September, 2007 and filed on 25th September, 2007 seeking for leave of the Court below to substitute the 1st Respondent with its liquidator, the Nigeria Deposit Insurance Corporation, referring to page 412 of the record of appeal. He submits that Section 650 of CAMA defines Court to include Court of Appeal and the Supreme Court. It is his view that the Appellant ought not to have commenced this appeal without leave first sought and obtained, relying on Onwuchekwa v NDIC (2002) 5 NWLR (pt. 760) 371.

In conclusion, learned counsel submitted that the Appellant failed to commence this appeal by due process of law and failed to fulfill a mandatory statutory condition precedent before filing this appeal. Referring to the case of Madukolu v Nkemdilim (1962) 2 SCNLR 341, he submitted that this Court lacks the jurisdiction to entertain this appeal and that it should be struck out.

​Responding, the learned counsel for the Appellant in their reply brief submitted that the preliminary objection is misconceived and unmeritorious as the said provision of CAMA under which the 1st Respondent brought this objection is inapplicable to the facts of this appeal. He submitted that as shown in paragraph 2 of the 1st Respondent’s brief of argument under “facts of the matter”, it was the 1st Respondent that commenced the proceedings that gave rise to this appeal and secondly, the matter was commenced at the High Court of Lagos State and not the Federal High Court. He relies on the case of Onwuchekwa v NDIC (supra) also relied upon by the 1st Respondent and the case of Agro Allied Development Ent. Ltd v Northern Reefer & 2 Ors (2009) 5 – 6 SC (pt.1) 110 at 123.

Learned counsel further submitted that Section 417 of CAMA relevant to this issue applies only to matters commenced before the Federal High Court, as “the Court” referred to in that provision is the Federal High Court, not a State High Court.

He contended further that the fact that the Appellant filed Notice of Appeal against the decision of the lower Court in the matter commenced at the trial Court by the 1st Respondent, has not detracted from the fact that this suit was commenced by the 1st Respondent since an appeal is a continuation of an action and not the commencement of a fresh action.

Learned counsel for 1st Respondent filed a reply on points of law. Firstly, he submitted that by Section 650 of CAMA, the Court of Appeal and Supreme Court are part of the Courts envisaged in Section 417 of the Act. Secondly, that an appeal being a continuation of hearing does not remove the duty and burden imposed upon the Appellant by law to comply with mandatory requirements of obtaining leave where the concerned company goes into liquidation as stipulated in Section 417 of CAMA. He urged the Court to hold that part of the judgment of Onnoghen, JSC (as he then was) in Agro Allied Development Ent Ltd v Northern Reefer & 2 Ors (supra) was at most obiter dicta which does not change the position of this Court inOnwuchekwa v NDIC (supra). He urged the Court to uphold the preliminary objection.

It is not in doubt that a notice of appeal, being an originating process in an appeal process, is a very important document. It is the foundation of an appeal. If it is defective, the appellate Court has no choice than to strike it out on the ground that it is incompetent. I need to emphasis that the question of whether or not a proper notice of appeal has been filed in Court is a question which touches on the jurisdiction of the appellate Court. If no proper Notice has been filed, then there is no appeal for the Court to entertain. See FBN PLC v TSA Industries Ltd (2011) 15 NWLR (pt.1216) 247, Anadi v Okoti (1972) 7 SC page 57, Central Bank of Nigeria v Okojie (2004) 10 NWLR (pt.882) 488, Olanrewaju v BON Ltd (1994) 8 NWLR (pt.364) 622, Abubakar v Waziri (2008) 14 NWLR (pt.1108) 507.

In the instant appeal, the contention of the 1st Respondent is that the Notice of Appeal dated and filed by the Appellant on 12th May, 2008 is incompetent, being a process filed to commence action against a company undergoing liquidation at the material time but without the leave of this Court being first sought and obtained vide Section 417 of the Companies and Allied Matters Act (CAMA) 1990 being the Act in force at the time of filing this appeal. Let me quickly state that Section 417 of Companies and Allied Matters Act, 1990 is in all fours with Section 580 of Companies and Allied Matters Act, 2020.

Now Section 417 of Companies and Allied Matters Act, 1990 provides:-

“…if a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company except by leave of the Court.”

​The above provision is very clear and unambiguous. It means clearly that if a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company undergoing liquidation. The intendment of the said provision is not to stop an aggrieved party from proceeding against the company which has been issued a winding up order or which a provisional liquidator has been appointed, but that leave of Court must be sought and obtained before commencing the action or proceedings.

As was pointed out by the learned counsel for the 1st Respondent, the health status of the 1st Respondent including the fact that the 1st Respondent was under liquidation was fully known to the Appellant, which prior to the dismissal of the appeal by the Court below had admitted that the 1st Respondent was since under liquidation in paragraph 3(a) of the affidavit in support of the Motion on Notice dated 24th September, 2007 and filed on 25th September, 2007 seeking for leave to substitute the 1st Respondent with its liquidator – the Nigeria Deposit Insurance Corporation as found in page 412 of the record which states:-

“3(a) The 1st Respondent, Pinnacle Commercial Bank Limited has since been under liquidation by the Nigerian Deposit Insurance corporation whose head office is at Mamman Kontagora House, 23A Marina Lagos. Further, that all the assets and liabilities of the said 1st Respondent have been taken over by the said NDIC ”

The above position has not been denied by the Appellant. And in any case, the record of this Court and/or any other Court is binding on the Court and the parties. It is trite that a crucial fact which is admitted does not require further proof as no person would admit a fact which could work against his interest unless it is true. See Sapo v Sunmonu (2010) 11 NWLR (pt.1205) 374, Adeusi v Adebayo (2012) 3 NWLR (pt,1288) 534 at 558 paragraph B, INEC v Oshiomole (2009) 4 NWLR (pt.132) 607 at 662. It is my well considered view that as at the time the Appellant filed its notice of appeal in this case, it knew that the 1st Respondent was under liquidation and that a liquidator i.e. NDIC had been appointed.

My Lords, the Appellant does not say it did not know that the 1st Respondent had fallen into liquidation and that a liquidator had been appointed. All it is saying is that the Supreme Court is not one of the Courts referred to in Section 417 of the CAMA, 1990. This, with due respect, is not correct. Section 650 of CAMA, 1990 which is retained in Section 868 of CAMA, 2020, defines “Court” or “the Court” as used in relation to a company under liquidation as ‘the Federal High Court, and to the extent to which application may be made to it as a Court includes the Court of Appeal and the Supreme Court of Nigeria.” Thus the argument of learned counsel for the Appellant that “Court” as used in Section 417 of CAMA, 1990 does not include the Court of Appeal and the Supreme Court, does not fly at all. It is my well considered opinion that the requirement of obtaining leave stipulated by Section 417 of CAMA, 1990 includes obtaining leave of the appropriate appellate Court to appeal against any decision made in any suit in which a company under liquidation is a party since Section 650 of CAMA defines Courts to include the Court of Appeal and the Supreme Court.

Luckily for us, this is not the first time this Section of CAMA is to be considered by this Court. In Alex O. Onwuchekwa v Nigeria Deposit Insurance Corporation (Liquidator of Co-operative and Commerce Bank Nig. Ltd) (2002) 5 NWLR (pt760) 317, this Court held that by virtue of the provision of Section 417 of the Companies and Allied Matters Act, 1990, if a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company except by leave of the Court. It added that what that section prohibits is action against the company without leave of Court and not the company proceeding against another person. This decision demolishes the Appellant’s argument that after all, it was the 1st Respondent that commenced the proceedings that gave rise to this appeal. See also Agro Allied Development Ent. Ltd v Northern Reefer & 2 ors (2009) 5-6 SC (pt.1) 110.

Learned counsel for the Appellant argued that because an appeal is a continuation of hearing of a case and as such, there was no need to obtain leave. This is, with respect, not tenable. It is my view that an appeal being a continuation of hearing does not remove the duty and burden imposed on the Appellant by law to comply with mandatory requirement of obtaining leave where the concerned company goes into liquidation as stipulated in Section 417 of CAMA, 1990.

​On the whole, I agree entirely with the learned counsel for the 1st Respondent that liquidation is a special circumstance which affects the concerned company and triggers the provision of Section 417 of CAMA, 1990, now Section 580 of CAMA, 2020 which makes it mandatory (by the use of the word “shall”) for leave of either the Court of Appeal or this Court to be sought and obtained by the Appellant for there to be a valid appeal. It is trite that where the law has stipulated in a mandatory provision applicable in specified circumstances, same must be given effect to. It is usually referred to as a condition precedent. This Court has properly elucidated the expression “condition precedent” in J. S Atolagbe & Ors v Alhaji Muhammadu Awuni & Ors (1997) 9 NWLR (pt.522) 537 at 565 per Uwais CJN thus:-

“Condition is a provision which makes the existence of a right dependent on the happening of an event; the right is then additional as opposed to an absolute right A true condition where the event on which the existence of the right depends is in the future uncertain, A “Condition Precedent” is one that delays the vesting of a right until the happening of an event”

​By the same token in this case in hand, the seeking and obtaining of leave is the condition precedent that would first take place before the vesting of the right to approach this Court. The condition must be met before the Appellant’s right to ventilate in this Court would inure. See Attorney General of Kwara State & Anor v Alhaji Saka Adeyemo & Ors (2016) LPELR-41147 (SC), Drexel Energy & Natural Resources Ltd & Ors v Trans International Bank Ltd & Ors (2008) 18 NWLR (pt,1119) 388, Capt, Amadi v NNPC (2000) 10 NWLR (pt,674) 76, Niger care Development Company Limited v Adamawa State Water Board & Ors (2008) 8 NWLR (pt.1093) 498.

Finally, the Appellant, having failed to obtain leave as prescribed in Section 417 of the CAMA, 1990 before filing this appeal, the said notice of appeal is incompetent and liable to be struck out. Once the law has stipulated the procedure for achieving an end, same has to be complied with. A litigant who fails to observe such provision cannot activate the jurisdiction of this Court as you cannot put something on nothing and expect it to stand. It will certainly and surely collapse. SeeMacfoy v U.A.C. (1961) 3 All ER 1169, Madukolu v Nkemdilim (1962) 2 SCNLR 341. This appeal commenced without the leave of this Court is null and void. The preliminary objection to the hearing of this appeal is thus upheld. Accordingly, this appeal is hereby struck out.

I make no order as to costs.

Appeal struck out.

---

SC.332/2008

Umeano & Ors V. Anaekwe & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. 

The appellants were plaintiffs at the trial Customary Court (CC) Akwuzu, Anambra State in Suit No. CCA/2/92: Alexander Umeano & Ors Vs Albert Anaekwe & Anor wherein they sought the following reliefs:

(a) Defendant to remove the Iyi-Oji Juju, which was planted by the defendants’ great-great-grandfathers on Obinuno Land of the Plaintiffs.

(b) Defendants to release the ownership of Obinuno Land of the Plaintiffs.

(c) An order of Court restraining the Defendants, their servants, privies and agents from further trespass into the said land of Obinuno situate at Ifite Village, Akwuzu.

​Before the trial commenced, the respondents raised an objection to the participation of the president of the Court in the proceedings on grounds of bias. The objection was overruled and the Court proceeded to hear and determine the case. Judgment was entered in the appellants’ favour in terms of reliefs (b) and (c). Relief (a) was refused. Despite the order restraining them from further trespass on the land, the respondents again trespassed into the land in dispute. The appellants therefore brought contempt proceedings against them before the same Customary Court. Notwithstanding, the earlier objection seeking the President’s disqualification from the panel, he presided over the contempt proceedings. The application seeking the respondents’ committal for contempt was refused. In the course of ruling on the contempt proceedings, the president made certain orders that materially altered the judgment it had earlier given. In its ruling, the Court held that the respondents were prohibited from entering Iyi-Oji Juju bush to harvest any trees with the exception of the juju priest. The Court further held that “the applicants (appellants herein) may enter the juju bush, which is on their land to take anything but with the consultation of the juju priest – Court did not give anybody authority to enter and clear the Iyi-Oji bush.” This was clearly an about-turn from the refusal of relief (a) in the original judgment.

​Being seriously aggrieved by the decision of the Customary Court, the appellants applied to the High Court of Anambra State, sitting at Otuocha for an order of certiorari to remove into the Court for the purpose of being quashed, the judgment, orders and all subsequent post judgment proceedings in respect of Suit No. CCA/2/92, on the ground of bias and/or real likelihood of bias.

The High Court found that the allegation of bias or likelihood of bias as regards the judgment of the Customary Court delivered on 17/3/92 was unfounded and therefore declined the invitation to tamper with it. However, the Court held that the contempt proceedings and the ruling delivered therein on 6/5/92 were null and void and of no effect. The said proceedings and ruling were accordingly quashed.

The present respondents were dissatisfied with the order of certiorari granted by the High Court and appealed to the lower Court. On 21/7/97, the Court allowed the appeal and set aside the judgment of the High Court on the grounds, inter alia, of breach of the rules of fair hearing in that the respondents were not heard before the judgment was entered. The Court did not make any consequential order.

​The appellants therefore, applied to the Court to make a consequential order, to wit, that the application for an order of certiorari be re-heard by the High Court. The appellants were granted leave to bring a fresh application for certiorari. The respondents raised a preliminary objection challenging the fresh certiorari proceedings on the ground that the proceedings were incompetent, having been filed out of time, contrary to the provisions of Order 37 Rule 4 (2) of the 1988 High Court Rules of Anambra State. The preliminary objection was dismissed. The application for an order of certiorari was granted in part, to the effect that the Customary Court exceeded its jurisdiction when it purported to vary or review its earlier final judgment.

The respondents were again dissatisfied with the decision of the High Court and appealed against it to the Court below. Both parties formulated three issues for determination. The first issue on either side was whether the High Court had jurisdiction to entertain an application for an order of certiorari after the six-month limitation period provided for in Order 37 Rule 4 (2) of the High Court Rules Cap. 66 Laws of Anambra State, 1988, had lapsed.

​The Court, in a considered judgment, delivered on 22/4/2008, resolved the appeal in the respondents’ favour on issue 1. The Court held that Order 37 Rule 4 (2) provides for a limitation period of six months within which to apply for an order of certiorari and that the appellants’ fresh application having been filed outside the six-month period was incompetent and could not confer jurisdiction on the High Court. The appeal was allowed. The ruling of the High Court in Suit No. OT/MISC/4/97 delivered on 23/6/2004 was set aside.

The appellants are aggrieved by this decision and have appealed to this Court in a bid to finally lay this matter to rest vide their notice of appeal filed on 22/9/2008 containing two grounds of appeal. The extant notice of appeal is the Amended Notice of Appeal filed on 29/10/21 and deemed filed on 2/11/21, the day the appeal was heard. It also contains two grounds of appeal.

At the hearing of the appeal, G.B. Obi Esq., adopted and relied on the appellants’ brief filed on 16/12/2009 and Reply Brief filed on 9/6/2017 in urging the Court to allow the appeal. Sir Ejike Ezenwa, SAN, adopted and relied on the Respondents’ Amended Brief of Argument filed on 27/2/2016 in urging the Court to dismiss the appeal.

​The appellants identified a single issue for determination thus:

“Whether the Court of Appeal was right when it held that in view of the provisions of Order 37 Rule 4 (2) of the High Court Rules 1988 of Anambra State, the High Court lacked the jurisdictional competence to have granted the application for leave for certiorari which was filed after six months from the date of the proceedings of the Customary Court, Akwuzu.”

Interestingly, the respondents have formulated four issues from the two grounds of appeal contained in the Amended Notice of Appeal. As far back as 1990, this Court in Egbe vs Alhaji & Ors (1990) 3 SC (Pt. III) 63 @ 109, per Karibi-Whyte, JSC stated what is required when formulating issues for determination. His Lordship stated, inter alia:

“I think it is now well understood in the appellate Courts that the formulation of issues for determination in the appeal must be consistent and fall within the scope of the grounds of appeal filed. The issues cannot be formulated to be wider than the grounds of appeal from which they derive their existence.”(Emphasis mine)

In Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig) Ltd. (1993) 1 NWLR (Pt. 269) 334 @ 347 A – C it was held thus:

“The essence of formulation of issues is to narrow the relevant points in issue. Since the issues must arise from grounds of appeal, they are meant to encompass all the grounds of appeal, thus a single issue should contain the points raised in one or more grounds of appeal. In other words, it is the grounds of appeal that should be contracted to form the issues for determination. The rule is that a number of grounds may raise a single issue and not the reverse.”

The appellant’s lone issue is distilled from the two grounds of appeal in the Amended Notice of Appeal. The respondents’ Issue (a) is in pari materia with the appellants’ issue, also distilled from the two grounds of appeal. In the absence of a cross appeal, the respondents’ issues (b), (c) and (d), not having been derived from any ground of appeal, are incompetent and hereby struck out. The appeal shall therefore be determined on the appellants’ lone issue.

Appellants’ Submissions

It is argued on behalf of the appellants that the lower Court in construing the effect of Order 37 Rule 4 (2) of the High Court Rules, read the provision in isolation without considering the provisions of Rule 4 (1). It is contended that, had the Court read the two Rules together, it would have reached a different conclusion. The provisions of Order 37 Rule 4(1) and (2) were set out in full in paragraph 4.03 at page 9 of the Appellants’ brief. Learned counsel submitted that upon a literal reading of the provisions of Order 37 Rule 4 (2), it is clear that the six months period prescribed therein is directly related to and complementary to the provisions of Rule 4 (1). He submitted that the six months period in the words of Sub-rule 4 (2) is “for the purpose of Rule 1” i.e. Sub-rule 4(1). He submitted further that both sub-rules must be read together to determine whether the six-month period provided for in Sub-rule 4(2) was intended to be a statutory limitation of the time for bringing an application.

He submitted that in the interpretation of statutes, the Court is concerned with the intendment of the lawmaker. He argued that a piecemeal approach to the interpretation of a statute is bound to lead to absurdity, therefore, the provisions must be considered as a whole and broadly, in order to ascertain the object it was intended to serve and in order not to defeat that intention. He referred to Mobil Oil Nig. Plc Vs IAL 36 INC. (2000) 6 NWLR (Pt. 659) 146 @ 168 D – E. He submitted that upon a composite reading of both sub-rules, Sub-rule (2) does not provide for a limitation of time for bringing an application for judicial review. He submitted that upon a literal interpretation of Sub-rule (1), rather than prohibiting the making of an application for judicial review, it gives the Court the discretion to refuse to grant the application, where there is undue delay, depending on the facts and circumstances of the particular case. He argued that the provision merely imposes an additional burden on the applicant to satisfy the Court why its discretion should be exercised in its favour. He submitted that in the instant case, the appellants duly explained the reason for the delay in paragraphs 20 – 26 of the affidavit in support of the application for leave at pages 2 – 6 of the record. He submitted that if the lawmakers intended the provision to have a limiting effect, it would have been so stated in clear terms. He argued that the use of the word “may” in Sub-rule 4 (1) shows that the intention is to give the Court a discretion where the period stated in Sub-rule 4 (2) has elapsed. On the interpretation of the word “may,” he referred to Edewor Vs Uwegba & Ors (1987) 2 SC 49 @ 102 – 103.

On the need to construe statutory provisions broadly, he referred to: Minister of Internal Affairs Vs Shugaba (1982) 2 NCLR 915 @ 972. He submitted that a strict interpretation as that given by the Court below would have the effect of depriving or restricting a citizen’s access to Court. He referred to: Utih vs Onoyivwe (1991) 1 SCNJ 25 @ 63. On the principles to guide the Court in the interpretation of statutes and avoiding a narrow or strict interpretation, he referred to Nwosu Vs Imo State Environmental Sanitation Authority & Ors (1990) 4 SCNJ 97 @ 120 – 121, per Nnaemeka-Agu, JSC. He urged the Court to allow the appeal.

Respondents’ Submissions

The respondents’ submissions in respect of the sole issue for determination in this appeal can be found in paragraphs 4.01 to paragraph 4.19 at Pages 6 – 12 of the Amended Respondents’ Brief. In view of my earlier finding that issues (b), (c) and (d) do not arise from the Amended Notice of Appeal, the submissions in respect thereof in paragraphs 4.20 to 4.39 at Pages 12 – 21 of the briefs are discountenanced.

Learned counsel submitted that Order 37 Rule 4 (2) provides for a six-month limitation period, after which any application for leave to appeal for judicial review would be incompetent and the Court would lack jurisdiction to entertain it. He argued that the Court ought to have considered the competence of the Court to assume jurisdiction as a preliminary issue before delving into the merit of the application. He submitted that the issue of jurisdiction was raised before the trial High Court. He contended further that there is no provision for extension of time within which to commence certiorari proceedings outside the six-month statutory period and that it is immaterial whether or not the appellants mentioned the cause of the delay in their affidavit in support of the application for leave.

​He interpreted the provision of Order 37 Rule 4 (1) of the High Court Rules to mean that, leave to commence certiorari proceedings will not be granted outside the stipulated time, as it would cause substantial hardship. In other words, that the Court has no discretion to exercise once the prescribed period has lapsed. He also argued that the trial Court ought to have declined jurisdiction, having become aware that the matter had been determined by the Court of Appeal.

Relying on Okafor Vs Ukadike (2009) 1 NWLR (Pt. 1122) 259, he submitted that in the absence of jurisdiction, there was a defect in the Court’s competence to adjudicate and that in the circumstances, the proceedings are a nullity, no matter how well conducted.

Appellants’ Reply on Points of Law

In their reply on points of law, it is argued on behalf of the appellants that effect of the judgment of the Court of Appeal setting aside the first application for an order of certiorari on the ground that there was a breach of the appellants’ right to fair hearing, is that the entire proceedings and the judgment of the High Court thereon, is a nullity, and therefore, as if it never existed. Learned Counsel referred to Omoniyi Vs Alabi (2015) 4 NWLR (Pt. 1456) 572 @ 593 – 595. It is further argued that in the circumstances, the proceedings and ruling in respect of the application for certiorari arising from Suit No. CCA/2/92, which is the subject of this appeal is the only application, properly so called. It is also submitted that there was no earlier decision on the merits, thus the trial Court could not be said to have sat on appeal over a decision of the Court of Appeal.

Resolution

I deem it appropriate to commence by considering the contention of learned counsel for the appellants that the trial Court sat on appeal over the decision of the Court of Appeal. There can be nothing further from the truth. I had earlier in this judgment summarised the salient facts that gave rise to the instant appeal. The ruling of the learned trial Judge in respect of the contempt proceedings delivered on 6/5/92, was set aside by the lower Court on 21/7/97 for breach of the rules of fair hearing.

There is a plethora of authorities of this Court on the effect of a breach of the right to fair hearing. It is fundamental. It is a breach of one of the twin pillars of natural justice, “audi alteram partem,” meaning, “let the other side be heard”, the other being “nemo judex in causa sua” meaning “a person should not be a judge in his own cause.” A denial of fair hearing renders the affected proceedings and any order, ruling or judgment therein, null and void. See: Adigun Vs A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Salu Vs Egeibon (1994) 6 NWLR (Pt. 348) 23 @ 44; Bamgboye Vs Unilorin (1999) 10 NWLR (Pt. 622) 290 @ 333; NUT, Taraba State & Ors Vs Habu & Ors (2018) LPELR – 44057 (SC) @ 13 – 14 D – A; Zenith Plastics Industries Ltd. Vs Samotech Ltd. (2018) LPELR 44056(SC) @ 13 – 14 D – F.

On the legal effect of an act being declared null and void, it was held in Ladoja Vs INEC (2007) 12 NWLR (Pt. 1047) 115; (2007) LPELR – 1738 (SC) @ 39 F -G:

“Much consideration was given by the trial Judge to the fact that the 1st defendant/appellant “occupied the throne of Odofin of Ilishan-Remo de facto from March 1981 up to 7 December 1989.” With profound respect to the learned trial Judge, I think he was, without realizing it, swimming in a deep sea. When an appointment is declared null and void, all it means is that the appointment was never made and all acts of the purported appointee when he de facto held the appointment are unlawful, null and void and of no effect. “The result of a decree of nullity of marriage is that not only are the parties not now married but they never were.” – per Russel, J in Re Wombwell’s Settlement (1922) 2 CD 298 at P. 305…”

In effect, what I am trying to say, is that the appellant’s learned counsel was quite correct when he argued that the issue of the trial Court sitting on appeal over a decision of the Court of Appeal, or that it ought to have declined jurisdiction upon becoming aware that the Court of Appeal had given a decision in the matter, did not arise. The proceedings and decision having been declared null and void, there was no subsisting judgment on the merit in respect of the matter.

I now proceed to consider the merit of the appeal. The issue in contention is the correct interpretation of Order 37 Rule 4 (1) & (2) of the High Court Rules of Anambra State, 1988.

​There are certain settled principles that guide the Court in the interpretation of statutes. Generally, statutory provisions must be interpreted in the context of the whole statute and not in isolation. They must be interpreted in a manner that is most harmonious with its scheme and general purpose. Furthermore, where the subject matter being construed relates to other sections (or subsections) of the same statute, they must be read, considered and construed together as forming a composite whole. See: General Cotton Mill Ltd. Vs Travellers Palace Hotel (2018) 12 SC (Pt. II) 106 @ 130 lines 14 -35; 168 lines 20 – 31. See also: Obi Vs INEC (2007) 7 SC 268; Akpamgbo-Okadigbo & Ors. Vs Chidi & Ors. (2015) 3 – 4 SC (Pt. III) 25; Nobis-Elendu Vs INEC (2015) 6 – 7 SC (Pt. IV) 1.

Specifically, there are three main rules of statutory interpretation:

(a) the Literal Rule: where the words are plain and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity. The plain words used by the legislature provide the best guide to their intention. See:Adewumi & Anor. Vs A.G. Ekiti State (2002) 2 NWLR (Pt.751) 474; A.G. Lagos State Vs Eko Hotels & Anor. (2006) 18 NWLR (Pt.1011) 378; Ojokolobo Vs Alamu (1987) 3 NWLR (Pt.61) 377; Sani Vs The President FRN & Anor (2020) LPELR – 50990 (SC) @ 22 – 23 D -A.

(b) The Golden Rule: Where the use of the Literal Rule would lead to absurdity, repugnance or inconsistency with the rest of the statute, the ordinary sense of the words may be modified so as to avoid the absurdity or inconsistency, but no further. See: General Cotton Mill Ltd. Vs Travellers Palace Hotel (supra); Grey Vs Pearson (1857) 6 HLC 61 @ 106; PDP & Anor Vs INEC (1999) 7 SC (Pt. II) 30; Saraki Vs FRN (2016) 1 – 2 SC (Pt. V) 59.

(c) The Mischief Rule: Formulated and laid down in Heydon’s Case 3 Co. Rep. 7a @ 7b as follows:

(i) “What was the common law before the making of the Act?

(ji) What was the mischief and defect for which the common law did not provide?

(iii) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth? and

(iv) The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy …”

The issue in contention is the proper interpretation of Order 37 Rules 4 (1) and (2) of the High Court Rules, which provide:

“4 (1) Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Rule 2 applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant-

(a) leave for the making of the application or

(b) any relief sought on the application, if in the opinion of the Court the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of any application for an order of certiorari to remove any judgment, order, conviction or other proceedings for the purpose of granting it, the relevant period for the purpose of Rule 1 is six months after the date of the proceedings.” (Emphasis mine).

The appellants’ contention is that the above provisions provide for a limitation period after which no application for judicial review can be made or granted. The effect of a statute limiting the period within which certain actions can be brought to Court is that failure to bring the action within the time stipulated by the statute renders the action invalid and the Court without jurisdiction to hear the action or claim. An action or application filed outside the prescribed period is said to be statute-barred. See: Abubakar Vs Michelin Motor Services Ltd. (2020) LPELR-50837 (SC) @ 6 E – G; Egbe Vs Adefarasin (1987) 1 NWLR (Pt.47) 1; Hassan Vs Aliyu (2010) 17 NWLR (Pt.1223) 547.

I adopt the literal rule in interpreting the provisions. The first part of Sub-rule 1 above, provides for two scenarios in which the Court MAY refuse to grant leave to make the application for judicial review or any relief on the application: (a) where the Court considers that there has been undue delay in making the application; and (b) in a case to which Rule 2 applies, where the application is made after the relevant period has expired. The relevant period referred to is six months.

Whether or not the use of the word “may” in a statute should be construed as being mandatory or discretionary depends on the context in which it is used. It was held in: Adesola Vs Abidoye (1999) 14 NWLR (Pt.637) 28 @ 56 C – E, per Karibi-Whyte, JSC:

“The construction of the word “may” in provisions of statutes has always raised difficulties … because the word “may” assumes a technical meaning depending on the intendment of the statutory provision in which it is used. Although the etymological meaning of “may” is permissive and facultative, and seldom can be “must” and imperative, where there is anything in the provision that makes it [a] duty on the person whom it is given to exercise it, then it is imperative.”

Having carefully examined the provisions of Rule 4 (1) above, I am of the considered view that the use of the word “may” therein gives the Court the discretion to grant or refuse an application for leave to apply for judicial review or to grant any relief sought on the application. The basis for my reasoning is that Rule 4 (1) (b) provides that where the application is made after the expiration of the stipulated period, the Court, in deciding whether or not to grant leave or any relief sought, must consider whether granting the relief would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration.

​Sub-rule (2) provides that in an application for an order of certiorari to remove any judgment, order, conviction or other proceeding into the Court for the purpose of quashing it, the relevant period for the purpose of Rule 1 is six months. In other words, as rightly submitted by learned counsel for the appellants, where an application is brought after six months, the Court has the discretion to grant or refuse the application, taking the factors in Rule 4 (1) (b) into consideration.

At page 147 of the record, the Court below considered Sub-rule (2) in isolation and held, inter alia:

“The effect of this provision is that leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceedings for the purpose of it being quashed, unless the application for leave is made not later than six months after the date of proceedings or such later period …

It could be seen that the application leading to this appeal was no doubt made well outside the six months period allowed by the Rules for applying [for] such relief. The relief was nonetheless granted by the lower Court. The respondents did not seek extension of time. The lower Court, in view of Order 37 Rule 4 (2) above, could not therefore grant the prayer. Failure on the part of the applicants to show that the granting of the leave has caused substantial hardship to them or in any way prejudiced their rights, could not confer on the lower Court a power which was no longer its to invoke.”

Contrary to the finding of the lower Court above, Order 37 Rule 4 is not expressed in absolute terms as found in most limitation statutes. In keeping with the general object of statutory interpretation, both subsections of the Rule must be read together to ascertain the intention of the legislature. It is quite evident that their Lordships read Rule 4 (2) in isolation without considering it alongside Sub-rule 1 and particularly, Sub-rule 1 (b). Had they done so, I have no doubt that they would have come to a different conclusion. Having regard to the peculiar circumstances of this case, in which the earlier proceedings were declared a nullity, it was within the trial Court’s discretion to grant the application. Furthermore, as rightly pointed out by the appellants at the Court below, the respondents failed to show that the Court’s discretion was wrongly exercised.

​In conclusion, I resolve the sole issue in this appeal in the appellants’ favour. The appeal is meritorious and it is hereby allowed.

The judgment of the lower Court delivered on 2nd July 2008 is hereby set aside. The judgment of the High Court of Anambra State, sitting at Otuocha delivered on 23/6/04 in Suit No. OT/MISC.4/97, quashing the proceedings, ruling and order of the Akwuzu Customary Court in respect of the motion dated 13/4/92 in suit no. CCA/2/92: Alexander Umeano & 2 Ors. Vs Albert Anaekwe & Anor., is hereby affirmed.

The parties shall bear their respective costs in this appeal.

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SC.323/2008

Uba V. Ozigbo & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal Awka Judicial Division, holden at Enugu and delivered on 3rd September, 2021 wherein the Court below set aside the judgment of O. A. Nwabunike, J of the High Court of Anambra State in suit No. A/230/2021 between Senator Ugochukwu Uba (Appellant herein) v INEC & 2 Ors. By virtue of the judgment delivered by Nwabunike, J aforementioned on 19th July, 2021, the 1st Respondent herein filed an appeal at the lower Court which culminated in the judgment of the lower Court delivered on 3rd September, 2021 allowing the appeal and setting aside the said judgment of Anambra State High Court. A summary of the facts of the case giving birth to this appeal as captured by the Court below may be stated as hereunder.

​By an originating summons dated the 5th day of July, 2021 and filed same date, the Appellant herein contended that his faction of the Peoples Democratic Party conducted a primary election on the 26th of June, 2021 at Paul University, Awka, Anambra State, pursuant to the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on the 9th of June, 2021 by Honourable Justice O. A. Adeniyi in suit No. HC/CV/774/2021 between SAMUEL ANYAKORAH (for himself and on behalf of all Local Government Area Chairmen and ward Executives who emerged from the Anambra P.D.P. congresses conducted on the 24th of November, 2017 and 1st December 2017, under the supervision of Sir Chukwudi Umeaba (Acting State Caretaker Committee) v PEOPLES DEMOCRATIC PARTY (P.D.P.) & 2 Ors. That the Appellant contended that the primary election by that faction of Peoples Democratic Party produced him as the winner of the primary election.

That the Appellant further contended that the Governorship primary election conducted by the National Executive Committee of the Peoples Democratic Party (3rd Respondent) at the Professor Dora Akunyili Women Development Centre, Awka on the 26th of June, 2021 under the Chairmanship of Comrade Philip Shuaibu (Deputy Governor of Edo State) in which the Appellant won the majority of lawful votes cast and was duly nominated and elected as the candidate of the 3rd Respondent (P.D.P.) and the flag bearer for the forthcoming governorship election scheduled for the 6th of November, 2021 by the 2nd Respondent (INEC) was conducted in disobedience to the judgment of the High Court of the Federal Capital Territory, Abuja, delivered by Honourable Justice O. A. Adeniyi on 9th of June, 2021 in suit No. HC/CV/774/2021 between SAMUEL ANYAKORAH (for himself and on behalf of all Local Government Area Chairmen and ward Executives who emerged from the Anambra P.D.P. congresses conducted on the 28th of November, 2017 and 1st December, 2017, under the supervision of Sir Chukwudi Umeaba as acting Chairman, State Caretaker Committee) v PEOPLES DEMOCRATIC PARTY (P.D.P.) & 2 Ors.

​That the primary election conducted by the National Executive Committee of the 3rd Respondent in which the Appellant was elected the candidate of the party was conducted in substantial compliance with the 1999 Constitution (as amended), the Electoral Act 2010 (as amended), as well as the Constitution of the 3rd Respondent. The 2nd Respondent (INEC) monitored the exercise and duly issued a report affirming the due conduct of the primary. It is this primary election that was conducted by the National Executive Committee of the 3rd Respondent under the Chairmanship of Comrade Philip Shuaibu (Deputy Governor of Edo State) that the learned trial Judge in his judgment, held as being in disobedience to the order of O. A. Adeniyi J, of the High Court of the Federal Capital Territory, Abuja.

That based on the foregoing, the Appellant sought the determination of the questions on the originating summons and prayed the High Court as follows:-

“i. A declaration that the Governorship Primary Election conducted by the Peoples Democratic Party on 26th June, 2021 at Paul University, Awka, Anambra State, pursuant to:

a. Judgment of High Court of the Federal Capital Territory, Abuja, delivered by Honourable Justice O. A Adeniyi on 9th of June, 2021 in suit No. HC/CV/774/2021 between SAMUEL ANYAKORAH (for himself and on behalf of all Local Government Area Chairmen and ward executives who emerged from the Anambra P.D.P. Congresses conducted on the 28th of November, 2017 and 1st December, 2017, under the supervision of Sir Chukwudi Umeaba as acting chairman, State caretaker Committee) v PEOPLES DEMOCRATIC PARTY (P.D.P.) & 2 Ors.

b. The Ruling delivered on 23rd June, 2021 in the same suit.

c. The 1st Defendant’s letter dated 22nd June, 2021 (with reference number INEC/LEG/LM/04/T/131) signed by the secretary to the 1st defendant.

d. Section 87(7) of the Electoral Act 2010 (as amended).

e. And Section 50(1) of the PDP Constitution (as amended), which produced the plaintiff as the winner of the election is valid, lawful, proper and binding on all the defendants and other members of the 2nd defendant’s party.

ii. A Declaration that the alleged Governorship Primary election of the 2nd defendant purportedly held on the 26th of June, 2021 at the Professor Dora Akunyili Women Development Centre, Awka, which was held

a. In disobedience to judgment of the High Court of the Federal Capital Territory, Abuja, delivered by Honourable Justice O. A. Adeniyi on 9th of June 2021 in suit No, HC/CV/774/2021 between SAMUEL ANYAKORAH (for himself and on behalf of all Local Government Area chairmen and ward executives who emerged from the Anambra PDP congresses conducted on the 28th of November, 2017 and 1st December, 2017, under the supervision of Sir Chukwudi Umeaba as acting chairman, State caretaker Committee) v PEOPLES DEMOCRATIC PARTY (PDP) & 2 Ors.

b. In disobedience to the Ruling delivered on 23rd June, 2021 in the same suit.

c. In disregard to the 1st defendant’s letter dated 22nd June, 2021 (with reference number (INEC/LEG/LM/04/131) signed by the secretary to the 1st defendant.

d. In violation of Section 87(7) of the Electoral Act 2010 (as amended).

e. And Sections 25 & 50(1) of the PDP Constitution (as amended),

unlawful, invalid, improper and a violation of Section 87 (7) of the Electoral Act, 2010 (as amended) and Sections 25 and 50(1) of the PDP Constitution 2017 (as amended).

iii. A Declaration that it is unlawful and illegal for the 3rd defendant, whether by himself, agents and or proxies to parade and or continue to parade himself or allow himself to be paraded as the Governorship candidate of the 2nd defendant for the purpose of the Governorship election fixed to hold on 6th November, 2021 in Anambra State, to elect the Governor of Anambra State.

iv. A Declaration that any certificate of return issued by the 2nd defendant to the 3rd defendant as the Governorship candidate of the 2nd defendant, for the purpose of contesting the Governorship election to elect the Governor of Anambra State fixed to hold on 6th November, 2021 is null and void and of no effect whatsoever.

v. An Order compelling the 2nd defendant to forward, send or present the name of the plaintiff to the 1st defendant as the rightful person elected at its Governorship primary election, which was held on 26th June, 2021 at Paul University, Awka, Anambra State, as the Governorship candidate of the 2nd defendant, for the Governorship election fixed to hold in Anambra State on 6th November, 2021, to elect the Governor of Anambra State.

vi. An Order compelling the 1st defendant to recognize, accept, adopt, receive and put the name of the plaintiff as the Governorship candidate of the 2nd defendant’s party in the list of candidates of political parties eligible to contest the Governorship election slated to hold on 6th November, 2021, to elect the Governor of Anambra State.

vii. An Order of perpetual injunction, restraining the defendants jointly and severally whether by themselves, cronies, allies or representatives from parading, holding out or representing the 3rd defendant or any person whatsoever other than Senator Ugochukwu Uba, as the Gubernatorial candidate of the 2nd defendant in the Anambra State Governorship election slated for 6th November, 2021.

viii. Cost of this action in the sum of Fifty Million Naira (N50,000,000.00) only.

That the Appellant raised a preliminary objection to the jurisdiction of the learned trial Judge, Nwabunike (J) over the matter and the locus standi of the plaintiff to institute the action. The learned trial Court dismissed all preliminary issues raised and held as follows:-

i. That the Honourable Court is imbued with jurisdiction by virtue of Section 87(9) of the Electoral Act 2010 (as amended);

ii. That the 1st Respondent is an Aspirant under the extant provisions of Section 56 of the Electoral Act 2010 (as amended);

iii. That the 1st Respondent has the requisite locus standi to initiate this action before the trial Court;

iv. The suit of the 1st Respondent was properly commenced under the originating summons;

v. That the Primary election conducted at Paul University by the State chapter of the People’s Democratic Party in which the 1st Respondent emerged winner was authentic and valid simply because it was conducted in obedience to a Court order;

vi. The learned trial Judge granted all the reliefs sought by the Appellant in the originating summons and consequently ordered the Independent National Electoral Commission to list the 1st Respondent as the candidate of the People’s Democratic Party (3rd Respondent) in the forthcoming Anambra State Governorship election scheduled for the 6th of November, 2021.

vii. The learned trial Court awarded the cost of N10,000,000.00 (Ten Million Naira only) against the Respondent.”

Irked by the said judgment of the learned trial Judge, the 1st Respondent appealed against same to the Court of Appeal. The Court below allowed the appeal and set aside the judgment of the trial Court; validated the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka and certified the 1st Respondent as the validly nominated candidate of the 3rd Respondent, the People’s Democratic Party for the governorship election slated for Anambra State on 6th November, 2021.

​Dissatisfied with the judgment of the lower Court, the Appellant filed notice of appeal on 15/9/2021 which said notice contains 21 grounds of appeal out of which appellant has distilled six issues for the determination of this appeal. The six issues are reproduced as follows:-

1. Whether the lower Court was right to have set aside the decision of the trial Court, which struck out the 1st Respondent’s preliminary objection and proceeded to uphold the same preliminary objection in its judgment.
2. Whether the decision of the lower Court is not contradictory, erroneous, presumptuous, perverse, speculative and against the record.
3. Whether the lower Court erred in law and acted without jurisdiction when their Lordships failed to abide by the Supreme Court’s decision in SKENCONSULT NIGERIA LIMITED & ANOR V GODWIN SEKONDY UKEY (1981) LPELR – 3072 (SC) page 19 – 20 paragraphs E – A, which requires them to strike out the 1st Respondent’s Notices of Preliminary Objection filed at the trial High Court, for non compliance with the mandatory provisions of Sections 95 and 97 of the Sheriffs and Civil Process Act, 2004.
4. Whether the lower Court ought to have set aside the judgment of the trial Court, endorsed Respondent’s disobedience, reprimand the Appellant and trial Court’s respect for the then valid and subsisting judgments/orders of the FCT High Court in suit No, FCT/HC/CV/774/2021 – Samuel Anyakorah v Peoples Democratic Party and 2 Ors (coram: Adeniyi, J) merely because the said judgment was subsequently set aside by the lower Court.
5. Whether the lower Court erred in law and thereby occasioned a miscarriage of justice, when the Court denied the Appellant’s locus standi to commence the suit.
6. Whether the lower Court was right to have suo motu, and without any counter claim before it, granted declaratory reliefs and positive orders validating the primary election held at the Professor Dora Akunyili Women Development Centre and awarded exemplary damages of N10,000,000 against the appellant.

In the brief of argument settled by Alex Ejesieme, SAN on behalf of the 1st Respondent, two issues are formulated for determination. I shall reproduce them here as follows:-

1. Whether the learned Justices of the Court of Appeal were correct in holding that the appellant lacks the locus standi to incept this action ab initio.
2. Whether the learned Justices of the Court of Appeal were correct in setting aside the judgment of the trial Court.

The second respondent’s brief was filed by Oluwole Osaze Uzzi, Esq on 18th October, 2021 in which three issues have been crafted thus:-

1. Whether the Court of Appeal was right to have set aside the decision of the trial Court which held that the 1st respondent’s Preliminary Objection was a writ and accordingly struck it out for non compliance with Sections 95 and 97 of the Sheriffs and Civil Process Act, 2004.
2. Whether the lower Court erred when it held that the Appellant had no locus standi to institute this action and that the Court does not have jurisdiction to entertain same.
3. Whether the lower Court was right in making the consequential order validating the Governorship primary election conducted by the 1st Respondent (sic) and which produced the 1st Respondent (Ozigbo) as the winner and its candidate at the Anambra Governorship election 2021.

For the 3rd Respondent, Emmanuel Enoidem, Esq., settled its brief of argument. In the said brief filed on 18th October, 2021, learned counsel donated four issues for determination. They are:-

1. Whether the lower Court was not right in holding that the Appellant who did not participate in the governorship primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka on June 26, 2021, did not have the locus standi to challenge the said primary election.
2. Whether the lower Court was not right in setting aside the judgment of the trial Court which dismissed the 3rd Respondent’s preliminary objection on the ground that same was a writ of summons within the meaning of Sections 95 and 97 of the Sheriffs and Civil Process Act, 2004.
3. Whether the lower Court was not right in setting aside the judgment of the trial Court for being holistically predicated on the judgment of His Lordship, Adeniji J in suit No. FCT/HC/CV/774/2021: Anyakorah v PDP & Ors and for being delivered in violation of the hallowed doctrine of stare decisis based on the established facts of this case as borne out by the record in this appeal.
4. Whether the Appellant has made any case against the judgment of the lower Court as being “contradictory, erroneous, presumptuous, perverse, speculative and against the record” in any way and whether such defect(s), if any, is capable, in the circumstances of this case, of invalidating the said judgment.

My Lords, after a careful perusal of the judgment of the Court below, particularly the facts of this case and the case law on the issue of party primaries as espoused by this Court in several cases, and having carefully considered all the issues placed before this Court by all counsel, it is my well considered opinion that this appeal can safely and conclusively be determined based on the two issues as crafted and donated by the learned senior counsel for the 1st Respondent. I propose, in the circumstance to determine this appeal on the said two issues. Having already reproduced them earlier in this judgment, I do not intend to repeat the exercise except as I may refer to specific aspects in the course of this judgment.

ISSUE ONE:-

For clarity, the question in this issue is whether the Court below was right in holding that the appellant lacked the locus standi to incept this action ab initio. This is also Appellant’s issue number five in his brief of argument.

​In his argument, the learned counsel for the Appellant, Adewole Adebayo, Esq, as directed by Assam Assam, SAN, submitted that their Lordships of the lower Court erred in law and thereby occasioned a miscarriage of justice, by upsetting the findings of the trial Court that the Appellant possessed the requisite locus standi to commence the suit. That the Court below ignored the peculiar facts and circumstances of this case, including the totality of material facts/documentary evidence placed before it, to arrive at the wrong conclusion that the Appellant lacked the locus standi to commence this suit.

​The learned counsel further submitted that the issue of locus standi was considered at an interlocutory stage, and that the Appellant did not at any time rely on the counter affidavit of the 1st Respondent to establish his locus standi, but in opposing the 1st Respondent’s notices of Preliminary Objection to point out the irreconcilable evidence in support of the 1st Respondent’s preliminary objection which shows that Appellant was an aspirant who participated in the said primary election. It was not a case of changing the case of the appellant made as plaintiff before the trial Court. He opined that the lower Court therefore occasioned a miscarriage of justice when it wrongly concluded that the Appellant changed his case mid-way and relied on the weakness of the defence to prove his case.

The learned counsel for the Appellant submitted further that there is ample affidavit and documentary evidence supporting the Originating Summons that the Appellant complied with the judgment of Adeniyi, J and relevant provisions of the Electoral Act and PDP constitution, in participating in the primary election whereof he emerged winner. That there is no evidence before the trial Court as presented in the defence of respective Respondents to the Originating Summons that they complied with the judgment of Adeniyi J, or the relevant provisions of the Electoral Act and PDP constitution in participating in the primary election conducted at Professor Dora Akunyili Women Development Centre. Also that the admissions by the PDP of claims in the originating summons only corroborated the sufficiently led evidence by the Appellant that he successfully emerged as candidate of the PDP for the imminent election.

​Learned counsel then urged this Court to resolve this issue in favour of the Appellant and hold that the lower Court ought not to have set aside the judgment of the trial Court which held that plaintiff has established his locus standi as an aspirant.

​In response to this issue, the learned Senior counsel for the first Respondent, Alex Ejesieme, SAN, submitted that from the 30 paragraphs affidavit of the Appellant herein in support of his Originating Summons which incepted this action at the trial Court, it is crystal clear that the Appellant did not participate in the primary election conducted by the National Executive Committee of the PDP and as a result, he cannot be classified as an “Aspirant” imbued with locus standi to challenge the primary election in which he did not participate. That Section 87 (9) of the Electoral Act, 2010 (as amended) gives a very narrow compass only to an aspirant who participated in the primary election organized by the National Executive Committee of the party. He stressed that it is the act of participation that gives an aggrieved party the right to challenge the outcome of the primary election and that without evidence of participation; the purported aspirant is a total stranger without the requisite locus standi to challenge the primary election, relying onEze v PDP (2019) 1 NWLR (pt 1652) 23, PDP v Sylva (2012) 13 NWLR (pt 1316) 85, Lado v CPC (2011) 18 NWLR (pt 1279) 689, Shinkafi v Yari (2016) 7 NWLR (pt 1511) 340, Emenike v PDP & Ors (2012) 12 NWLR (pt 1315) 556.

​The learned Silk contended that the argument canvassed by the Appellant to the effect that he participated in the primary election conducted at the Professor Dora Akunyili Women Development Centre on the 26th of June, 2021 does not fly. That appellant’s reliance on the result of the primary election conducted by the 3rd Respondent at the said Women Development Centre which was exhibited by the 1st and 3rd Respondents in their respective affidavits is of no moment. That the claim was made simply because his name appeared on the said result sheet and based on this, that the appellant has the requisite locus standi to incept this action as an “Aspirant” under Section 87 (9) of the Electoral Act, 2010 (as amended). It is his argument that the appellant made these conscious but futile efforts to change the template of his case at the appellate level especially after the Court of Appeal, Abuja Division in Appeal No. CA/A/359/2021 delivered on the 29th of July, 2021 set aside the forum shopped judgment of Adeniyi J of the FCT High Court, Abuja which was the stanchion upon which the judgment of the trial Court in this instant appeal was predicated. He submitted that a party is not permitted on appeal to change the case he made at the trial Court since an appeal is simply the continuation of the case he put forward in the Court of first instance, citing and relying on I.M.N.L. v Pegofor Nig. Ltd. (2005) 15 NWLR (pt 947), Oriorio v Osain (2012) 16 NWLR (pt 1327) 560.

Furthermore, that the Respondents did not admit that the Appellant was an aspirant in the vexed primary election. That for an admission to be valid, it must be clear, precise and unambiguous, referring to CAPPA D’ALBERTO v Akintilo (2003) 9 NWLR (pt 824) 68 – 69.

​Again, he contended that bearing in mind that the principal relief sought by the Appellant before the trial Court was a declaratory relief, the Appellant has an onerous duty leading positive evidence to establish his case and not to rely on the weakness of the opponent’s case, citing Bello v Ayoola (1984) 11 SC 72 at 14, Oduah v Okadigbo (2019) 3 NWLR (pt 1660) 460.

Referring to several paragraphs of the Appellant’s affidavit in support of the Originating Summons and the counter affidavit of the 1st Respondent, the learned Silk concluded that the Appellant failed to show that he had locus standi to incept this action, He urged this Court to so hold and resolve this issue against the Appellant.

The second respondent, through her counsel, Oluwole Osaze-Uzzi, Esq, submitted in tandem with the 1st Respondent that the Appellant herein lacked the locus standi to incept this matter at the trial Court and that the Court below was right to set aside the judgment of the trial Court in the circumstance. Relying on Emenike v PDP (2012) 12 NWLR (pt 1315) 556, Emeka v Okadigbo (2012) 18 NWLR (pt 1331) 51 and Odedo v PDP (2015) LPELR – 24738 (SC), learned counsel stressed that these cases arose out of PDP primaries in Anambra State and wondered why the Appellant has not learnt the simple political lesson that only a primary election conducted by the National Executive Committee of a political party is cognizable by law. He urged the Court to hold that the Court below was right in holding that the Appellant, having not taken part in the said primary election, lacks the locus standi to institute the action vide Section 87 (9) of the Electoral Act, 2010 (as amended). He also urged this Court to resolve this issue against the Appellant.

For the third Respondent, her counsel, Emmanuel Enoidem Esq, submitted, in the main, that in the determination of the question whether or not a party has locus standi, it is the originating process, as in the instant case, the originating summons and the supporting affidavit that must be interrogated. That throughout the entire gamut of his case as encapsulated in his originating summons and the 30 paragraph affidavit, the Appellant never claimed to have taken part in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka. Learned counsel relied on the cases of Odimegwa & Ors v Ibezim & Ors (2019) LPELR – 46939 (SC), Dopah v Registered Trustees UMCN (2019) 4 NWLR (pt 1663) 520, Nyesom Wike v Peterside & Ors (2016) 1 – 2 SC (pt 1) 37, Eze v PDP (2018) LPELR – 44907 (SC) at page 22 – 23 F-B.

Referring to certain paragraphs of the affidavit in support of the originating summons, learned counsel submitted that contrary to his case at the trial Court, the Appellant through his brief embarked on a summersault and claimed that he took part in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka. It is his contention that a party must be consistent in stating his case. That Courts will not allow a party to approbate and reprobate, relying on Comptroller General of Customs & Ors v Comptroller Abdullahi B. Gusau (2017) LPELR – 42081 (SC); Emeka v IGP (2021) 10 NWLR (pt 1785) 489 at 508 paragraphs A – E.

Learned counsel contended that the appellant, having not taken part in the recognized primary election of the 3rd Respondent, he lacks the locus standi to approach the Court for redress vide Section 87 (9) of the Electoral Act (as amended). He urged the Court to resolve this issue against the Appellant.

RESOLUTION

The fulcrum of this appeal, particularly, this issue, as can be gleaned from the Originating Summons which gave birth to this action, is the dispute as to the authenticity of the two primary elections of the Peoples Democratic Party conducted on 26th June, 2021. The Appellant herein obtained a judgment by Adeniyi J of the High Court of the Federal Capital Territory delivered on 9th June, 2021. Armed with that judgment, the appellant proceeded to conduct an illegal and factional primary election at Saint Paul’s University, Awka on the date aforementioned. The Appellant claimed he won the said primary election which did not have the blessing of the National Working Committee of the 3rd Respondent. It also did not have the supervisory coverage of INEC, the 2nd Respondent herein.

​Contrariwise, even the appellant acknowledged that the 1st Respondent participated in the primary election conducted at the Professor Dora Akunyili Women Development Centre, Awka on the same date in which the 1st Respondent emerged winner. The 1st Respondent and the evidence show a consistency that it was the National Executive Committee of the PDP (3rd Respondent) that organized the governorship primary election in which the 1st Respondent emerged victorious and was duly nominated and returned as the governorship candidate of the PDP for the forthcoming Anambra State Governorship election scheduled for 6th November, 2021. However, the Appellant had contended that this primary election organized at the instance of the National Executive Committee of the 3rd Respondent (PDP), was conducted in disobedience to the judgment of the High Court of the Federal Capital Territory, Abuja.

My Lords, I note that from the affidavit of 30 paragraphs in support of the Appellant’s originating summons, at the trial Court, the Appellant did not in any way whatsoever state that he participated in the primary election conducted at the instance of the National Executive Committee of the 3rd Respondent on 26th June, 2021 held at Professor Dora Akunyili Women Development Centre Awka. In fact he described the said primary election as “illegal” and “unlawful”.

​At the lower Court, the Appellant, contrary to his case at the trial Court decided to use his brief of argument to embark on a summersault by claiming that he took part in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka. Having regard to the circumstances of this case, can it be said that the Appellant took part in the 3rd Respondent’s primary election held on 26th June, 2021 at Professor Dora Akunyili Women Development Centre, Awka, so as to imbue him with locus standi to challenge the said election as prescribed in Section 87 (9) of the Electoral Act, 2010 (as amended)? To this, the Court below, at pages 123 – 125 of the record made the following far reaching findings and conclusion:-

“It is no wonder that the 1st Respondent, in full recognition of the impact of the judgment of the Court of Appeal on his position in this case as stated in the Originating Summons before the trial Court has in paragraphs 4.2.7 to 4.2.12 of his Brief of argument tried to embellish the facts averred in the affidavit in support of his originating summons and change the narrative by advancing new facts not contained therein nor in his further affidavit. Now relying on the result of the primary election conducted by the 3rd Respondent (PDP) at Professor Dora Akunyili Women Development Centre, which was exhibited by the 3rd Respondent to his counter affidavit, he contended for the very first time that in addition to taking part in the primary election at the Paul University, Awka, he also participated in the said Governorship primary election simultaneously held at Professor Dora Akunyili Women Development Centre, Awka, where the Appellant emerged as winner and candidate for the Governorship election of Anambra State. It is significant that this is the same election which the 1st Respondent had strongly degraded before the trial Court as well as before this Court, contending that it was conducted in flagrant “disobedience” to the judgment of the Federal Capital Territory High Court in Exhibits C1 and C2; and so he had prayed the trial Court to declare it as invalid, improper and a violation of Section 87(9) of the Electoral Act and Sections 25 and 50(1) of the PDP Constitution 2017 (as amended) a prayer which the trial Court acceded to … Thus, the judgment of Adeniyi J, of the Federal Capital Territory High Court having been declared null and void, the 1st Respondent quickly jumped ship to claim that he was actually a contestant who participated in the primary election conducted by the 3rd Respondent (PDP) at the Professor Dora Akunyili Women Development Centre. This new advocacy is however not borne out by the originating summons and the affidavit in support, which are the only documents that can be examined to determine the locus standi of a party. He is not allowed to rely on the processes of the defendants to the action to establish his locus standi, to approach the trial Court. Thus, the 1st Respondent’s reliance on the result sheet of the primary election exhibited to the counter affidavit of the 3rd Respondent cannot assist him, because by law, it does not avail him in establishing locus standi.”

In agreeing with the Court below as reproduced above, it is my view that the findings are unassailable. Section 87 (9) of the Electoral Act, 2010 (as amended) is very clear and states thus:-

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

The above provision of the Electoral Act is very clear and unambiguous. It is not the business of any Court to select or nominate candidates for any political party for election. The nomination of a candidate to contest an election is the sole responsibility of the political party concerned. The Courts do not have jurisdiction to decide who should be sponsored by a political party as a candidate in an election. See Onuoha v Okafor (1983) 2 SCNLR 244, Dalhatu v Turaki (2003) 15 NWLR (pt 843) 310, Shinkafi & Anor v Yari & Ors (2016) LPELR – 26050 (SC) page 57 paragraphs A – D, Olofu & Ors v Itodo & Anor (2010) 18 NWLR (pt 1225) 545. The above position has been the law and has not changed because issue of selection and/or nomination of a candidate for an election is strictly within the domestic jurisdiction or power of political parties.

​Notwithstanding the position stated above, Section 87 (9) of the Electoral Act, 2010 (as amended) has created a narrow compass of sort for an aggrieved candidate who took part in a primary election to select a candidate for an election. Under the said provision, where a political party nominates a candidate for an election contrary to its own constitution, rules and guidelines, a dissatisfied candidate who actually participated in the primaries is empowered to approach the Courts enumerated therein for redress. In such situation, the Courts have jurisdiction to examine and interpret relevant legislations to see if the political party fully complied with relevant laws and guidelines governing the nomination of its candidates.

But before a candidate for the primaries can invoke Section 87 (9) of the Electoral Act, 2010 (as amended), and thus be imbued with locus standi or the ground to sue, he must have been screened and cleared by his political party and actually participated in the said primaries. Where a candidate who bought nomination form, was screened and cleared to participate in the primaries but failed to actually participate, such a candidate has lost the right to be heard in a Court of law under Section 87 (9) of the Electoral Act (supra). See Emenike v PDP & Ors (2012) 12 NWLR (pt 1315) 556, Alahassan v Ishaku & Ors (2016) LPELR – 40083 (SC), Emeka v Okadigbo (2012) 18 NWLR (pt 1316) 553, Shinkafi v Yari (supra), Jev & Anor v Iyortyom & Ors (2014) 14 NWLR (pt 1428) 575, Emenike v PDP & Ors (2012) 12 NWLR (pt 1315) 556, Eyiboh v Abia & Ors(2012) 16 NWLR (pt 1325) 51, Odedo v PDP & Ors (2015) LPELR – 24738 (SC), Lado v CPC (2011) 18 NWLR (pt 1279) 689, PDP v Sylva & Ors (2012) 13 NWLR (pt 1316) 85.

Let me state emphatically that for a candidate’s complaint to come within the narrow compass of Section 87 (9) of the Electoral Act (supra), the aspirant must show to the Court that the National Executive Committee of the political party conducted the primary election he is challenging and that he was an aspirant not by mouth but that he took part or participated in the vexed primary election. An aspirant who, though he was cleared to participate in the primary election decides to stage a factional primary election, does so at his peril as he is on a frolic of his own. See Daniel v INEC (2015) 9 NWLR (pt 1463) 152.

In the instant case, the Appellant herein clearly stated in the affidavit in support of his originating summons that he took part in the primary election held at St. Paul University, Awka in obedience to the judgment of Adeniyi J of the Federal Capital Territory High Court and that the said election was conducted by Sir Chukwudi Umeaba who authored and signed the alleged result of the primary election. He is said to be the leader of the State Executive of the 3rd Respondent. That Appellant emerged winner of that contraption he called party primary election. But from the authorities of this Court cited above, that assemblage at St. Paul University was nothing other than an illegal and an unlawful gathering of party delinquents. The outcome therefore was a sham and a farce. See Emenike v PDP (supra). Not having been conducted by the National Executive Committee 3rd Respondent, the primary election held at St. Paul University on 26th June, 2021 which the Appellant took part is unknown to law and is a nullity. The law is very clear that a State executive of a political party has no vires to conduct party primaries. It is only the National Executive Committee of the party that is recognized as the proper organ of the party saddled with the responsibility of conducting party primaries.

​The appellant at the Court below made “a very unprofessional somersault and an ignoble acrobatic”, according to learned counsel for the 3rd Respondent, Emmanuel Enoidem Esq, by claiming that he took part in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka. The Court below made far reaching findings in this matter and concluded that the appellant did not take part in the primary election conducted at Professor Dora Akunyili Women Development Centre, Awka. The law is settled beyond any controversy that a party must be consistent in stating his case at the trial Court up to the appellate Court. A party is not allowed to present different cases before each hierarchy of Court as he likes. Put differently, a party is not allowed in the presentation of his case before the Court to approbate and reprobate. See Intercontinental Bank Ltd vs Brifina Ltd (2012) All FWLR (pt 639) 1192, Asaboro & Anor v Pan Ocean Oil Corporation (2017) LPELR – 41558 (SC), Comptroller General of Customs & Ors v Comptroller Gusau (2017) LPELR – 42081 (SC), Akaninwo v Nsirim (2008) All FWLR (pt 410) 610, Oliyide & Sons Ltd v Obafemi Awolowo University (2018) LPELR 43711 (SC).

As was observed by the Court below, the fact of the appellant participating in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka, surfaced for the first time in the Appellant’s brief at the lower Court and in this appeal before this Court. As was pointed out by the three counsel for the Respondents, this is another inappropriate introduction by the learned counsel for the Appellant. The law prohibits counsel from introducing evidence that a party did not offer at the trial. The law is trite that counsel cannot use his address to the Court to introduce evidence which was not adduced by the party during the trial. Such evidence in counsel’s address shall not be used for the resolution of issue in the appeal. Even where such evidence was available but not adduced at the trial of the suit, counsel does not have the province or latitude to introduce it by any stretch of ingenuity in his address. See Emeka v IGP (2021) 10 NWLR (pt 1785) 489 at 508, Agi v PDP (2017) 17 NWLR (pt 1595) 386.

From all I have endeavoured to say above, it is crystal clear that the Court below was right in holding that the appellant was not an Aspirant in the 3rd Respondent’s primary election held at Professor Dora Akunyili Women Development Centre, Awka and therefore lacked the locus standi to invoke Section 87 (9) of the Electoral Act, 2010 (as amended). I note that most of the authorities cited in this issue emanated from primary elections held by the 3rd Respondent in Anambra State. One would have thought that members of the 3rd Respondent especially those in Anambra State chapter would have learnt this political lesson. Party primaries are conducted by the National Executive Committee of political parties. Definitely, not by the State executive of the party. The Appellant lacked the locus standi to incept the suit giving birth to this appeal. Counsel ought to advise their clients when requested to file such frivolous suits in Court. Also, trial Courts should not close their eyes to the well established precedents bordering on the Apex Court’s interpretation of Section 87 (9) of the Electoral Act (supra). Although the learned counsel for the Appellant had termed the judgment of the Court below as being “contradictory”, “erroneous”, presumptuous”, “perverse”, “speculative” and ‘”against the record”, nothing was shown in the brief of argument to that effect. This issue is accordingly resolved against the Appellant.

Having agreed with the Court below that the appellant lacked the locus standi to institute this action at the trial Court; the simple deduction is that the trial Court had no jurisdiction to have entertained the suit. The Court below made this point very clear in its judgment. Thus, at this stage it becomes academic and a waste of the precious time of this Court to consider any other issue. The judgment and orders of the trial Court having been set aside by the Court below, there remains nothing more to be said in this appeal. It is my view that this appeal lacks merit and is hereby dismissed. The judgment of the Court below, delivered on 3rd September, 2021, is hereby affirmed. Five Million Naira (N5m) costs for the 1st Respondent only, to be paid by the Appellant.

Appeal Dismissed.

As agreed by all parties to this appeal at the hearing of same that appeal No. SC.CV/773/2021 shall abide the outcome of the instant appeal, it is hereby ordered that the said appeal No.SC.CV/773/2021 be and is hereby dismissed also.

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SC.CV/772/2021

Uba Plc V. Mabogunje (2022)

LAWGLOBAL HUB Lead Judgment Report

ADAMU JAURO, J.S.C.

This appeal is against the judgment of the Court of Appeal, Lagos Judicial Division, which dismissed the Appellant’s appeal against the judgment of the High Court of Lagos State delivered on 4th March, 2014. The Court below affirmed the declaratory reliefs amongst other reliefs made in favour of the Respondent in respect of a property known as No.5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos.

BRIEF STATEMENT OF FACTS

The property, the subject matter of the suit, then known as Plot 15, Fashola Layout, Idi-Iroko Village, Lagos was owned by one Late Brigadier General Sunday Ajibade Adenihun (Rtd) who acquired title to the property in 1975 by virtue of a Deed of Conveyance dated 29th May, 1975 and registered as No. 83 at Page 83 in Vol. 1503 at the Lands Registry, Ikeja, Lagos. The said Late Brigadier Adenihun subsequently developed the property into two detached houses.

​In the year 1998, the Appellant, then known as Standard Trust Bank granted a loan facility to Late Brigadier Adenihun (Rtd) for which he pledged the property as security. The Deed of Legal Mortgage is dated 10th November, 2000 and registered on December, 2000 as No.59 at Page 59 in Vol. 2049 of the Register of Deeds kept at the Lagos State Lands Registry, Ikeja, Lagos. Consequent upon the failure of the Late Brigadier Adenihun (Rtd) to repay the loan facility granted to him, the Appellant auctioned a part of the property containing one of the detached houses. However, when the proceeds were not enough to liquidate the lingering indebtedness, the Appellant sought to auction the other portion of the property which at that material time was occupied by the Respondent.

The attempt to auction the said property was resisted by Respondent who claimed that the property sought to be auctioned had been sold to his principals by Late Brigadier Adenihun (Rtd.) via a Deed of Assignment dated 18th November, 1992 and which a Lagos State Certificate of Occupancy No 48/48/1996AH dated 10th July, 1996 was issued to them. The Respondent claimed that his principals have enjoyed undisturbed possession of the property in dispute exercising direct act of ownership with regards to same since 1992, till dispute arose between the parties.

​In a bid to restrain the Appellant from auctioning the disputed property now known as No.5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos, the Respondent suing as attorney of his disclosed principals, took out a Writ of Summons and Statement of Claim against the Appellant seeking the following reliefs:

i. “A declaration that late Brigadier General Sunday Ajibade Adenihun (Rtd) sold the property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos to Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya in 1992.

ii. A declaration that as at 1998, the late Brigadier General Sunday Ajibade Adenihun (Rtd) had no legal or equitable interest in the property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos which he could mortgage to the defendant.

iii. A declaration that any purported mortgage of the property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos by Brigadier General Sunday Ajibade Adenihun (Rtd) to the defendant vide deed of mortgage dated 10th of November, 2000 registered as No. 59 at Page 59 in Volume 2049 at the Lands Registry, Ikeja, Lagos is null and void and of no effect whatsoever.

iv. A declaration that the defendant has no legal or equitable interest in the property known as No. 5, Fashola Street, Idi Iroko Village, Off Ikorodu Road, Lagos to transfer, sell or assign to a third party.

v. N5,000,000 (Five Million Naira) as general damages against the Defendant for trespass to the Claimant’s property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos since 2007 till date.

vi. An order of perpetual injunction restraining the Defendant, its servants, agents and privies from committing further acts of trespass on the property known as No. 5, Fashola Street, Idi Iroko Village, Off Ikorodu Road, Lagos.

vii. An order of perpetual injunction restraining the Defendant, its servants, agents and privies from selling, assigning or otherwise transferring the legal interest in the property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos to a third party.”

At trial, the Respondent as Claimant called two witnesses and tendered 17 exhibits, while the Appellant as Defendant called a lone witness and tendered seven exhibits.

​Upon the conclusion of trial and the addresses of counsel, the trial Court delivered a considered judgment wherein it granted the Respondent’s claims against the Appellant. Dissatisfied, the Appellant appealed before the lower Court which dismissed the appeal for lacking in merit.

Still disgruntled and in a bid to exhaust its constitutionally guaranteed right of appeal, the Appellant has appealed to this Court via a Notice of Appeal dated and filed on May, 2017.

MATTHEW ESONANJOR ESQ. settled both the Appellant’s Brief of Argument and the Reply Brief. The Appellant’s brief is dated and filed on 14th November, 2017 while the Reply brief is dated and filed 13th July, 2017.

​For the determination of the appeal, the Appellant’s counsel formulated three issues as follows:

i. “Whether the lower Court was right when it held that the issue of locus standi was academic and on the basis of which grounds 4 and 5 of the Appellant’s grounds of appeal and its issue 3 were struck out. (Distilled from Ground 1 of the Notice of Appeal).

ii. Whether the Appellant was obligated to challenge before the lower Court the findings of facts made by the trial Court in favour of persons who are not parties to the suit as constituted before it. (Distilled from Ground 2 of the Notice of Appeal).

iii. Whether the lower Court was right when it failed or neglected to resolve the two competent issues formulated by the Appellant and the one competent issue distilled by the Respondent for the determination of the appeal in the judgment appealed against. (Distilled from Ground 3 of the Notice of Appeal).”

On issue 1, it was submitted that the issue of locus standi is a threshold issue that borders on jurisdiction and must be resolved one way or the other before a Court can have jurisdiction to adjudicate on a matter. That where a claimant lacks locus standi to ventilate a claim in Court, the Court would lack the jurisdictional competence to adjudicate on the claim presented by that party. Reliance was placed on the cases of DADA & ORS V. OGUNSANYA & ANOR (1992) LPELR-908 (SC); AWUSE V. ODILI & ORS (2003) LPELR-666 (SC); AFRICAN NEWSPAPERS OF NIGER & ORS V. FRN (1985) LPELR-211 (SC); DREXEL ENERGY & NATURAL RESOURCES LTD & ORS V. TRANS INTERNATIONAL BANK LTD & ORS (2008) LPELR-962 (SC).

Counsel for the Appellant submitted that the issue of the capacity of the Respondent to institute the suit at the trial Court was adequately raised in the Appellant’s pleading before the trial Court and in the written deposition of its sole witness. That assuming the issue of locus standi was not formally raised by the Appellant at the trial Court, the issue, being jurisdictional in nature, was properly raised before the Court below. Counsel therefore submitted that the lower Court having acknowledged that the issue of locus standi is jurisdictional, erred by holding that the issue was academic. Reliance was placed on LADOJA V. INEC (2007) LPELR-1738 (SC); OKOYE & ANOR. V. CENTRE POINT MERCHANT BANK LTD (2008) LPELR-2505 (SC) OUR LINE LTD V. SCC (NIG) LTD & ORS (2009) LPELR-2833 (SC); OWIE V. IGHIWI (2005) LPELR-2846 (SC).

In the final analysis, he urged this Court to set aside the decision of the lower Court to the effect that the issue of locus standi raised by the Appellant was academic. He further urged the Court to nullify the proceedings and judgment of the Courts below for lack of jurisdiction.

​Arguing issue 2, counsel submitted that the Appellant had no duty to appeal against the findings of facts made by the trial Court as they were made in favour of the Claimant, Engineer Olabisi Mabogunje who had no locus to initiate the suit. Relying on NIGER CONSTRUCTION LTD V. OKUGBENI (1987) LPELR-1993 (SC), counsel submitted that a finding of fact reached in a judgment can only be in respect of a party before the Court. That challenging a finding of fact made in favour of a non-party to a suit by a trial Court is academic as such finding of facts and conclusions do not affect the case contested between the parties. He urged the Court to resolve this issue in favour of the Appellant.

On issue 3, counsel submitted that the lower Court, having found that the Appellant formulated two competent issues for determination and that the Respondent formulated one competent issue, was bound to pronounce on the merits of the issues one way or the other in its judgment. Reference was made to the cases of GOODWILL & TRUST INVESTMENT LTD & ANOR V. WITT & BUSH LTD (2011) LPELR-1333 (SC) EGHAREVBA V. FRN & ORS (2016) LPELR-40045 (SC); OKAFOR V. ABUMOFUANI (2016) LPELR- 40299 (SC); BRAWAL SHIPPING (NIGERIA) LIMITED V. F. I. ONWADIKE COMPANY LIMITED & ANOR (2000) LPELR-802 (SC) (2010); ONWE V. STATE (2017) LPELR-42589 (SC); GARBA V. MOHAMMED & ORS (2016) LPELR-40612 (SC); OKONJI & ORS V. NJOKANMA & ORS (1991) LPELR-2476 (SC).

It was further submitted that the failure of the Court below to resolve the competent issues raised by both parties before it, occasioned a miscarriage of justice against the Appellant. He submitted that this Court is empowered in such a situation to consider and resolve those issues without remitting the issues back to the lower Court for consideration and resolution provided that there is no need to re-examine witnesses. The cases of TITILOYE & ORS V. OLUPO & ORS (1991) LPELR-3250 (SC); KOTOYE V. SARAKI & ANOR, (1994) LPELR-1708 (SC) were relied on. He urged the Court to resolve this issue in favour of the Appellant.

Counsel finally urged this Court to allow the appeal, set aside the judgment of the lower Court and dismiss the Respondent’s suit at the trial Court.

MORENIKE OBI-FARINDE (MRS) settled the Respondent’s brief of argument dated 20th June, 2018 and filed on 26th June, 2018. The Respondent’s counsel formulated the following three issues for the determination of the appeal as follows:

i. “Whether the Court of Appeal was right in striking out Grounds 4 and 5 of the Notice of Appeal and the third issue formulated from the grounds. (Ground 1 of the Notice of Appeal)

ii. Whether the Court of Appeal came to the right decision when it held that the Appellant having failed to challenge the finding of facts made by the trial Court could not challenge the decision of the Court. (Ground 2 of the Notice of Appeal)

iii. Whether the Court of Appeal resolved all the issues in the appeal. (Ground 3 of the Notice of Appeal)”

​On issue 1, learned counsel submitted that the Respondent having tendered Exhibit EOM 10, the Power of Attorney appointing him as attorney of Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya without any objection, the issue of capacity of Engineer Olabisi Mabogunje became otiose. That the trial Court did not pronounce on same, hence the grounds of appeal relating thereto in the Notice of Appeal before the lower Court did not emanate from the judgment of the trial Court. It was further submitted that the originating processes and the evidence led at trial made it clear that the Respondent was suing in his capacity as the attorney for disclosed principals. The case of VULCAN GASES LTD V. G.F. IND. A.G (2001) 9 NWLR (PT. 719) PAGE 610 was referred to.

Counsel submitted that having demonstrated that he commenced the suit as attorney of disclosed principals, the lower Court was right in holding that the issue of locus standi was academic as the Appellants were not misled by the description of the Claimant. Counsel submitted that the lower Court considered the overriding need to do substantial justice rather than adhere to technicalities.

​On issue 2, learned counsel submitted that the lower Court was right to have affirmed the findings of the trial Court as they were based on the evidence on record. That having failed to appeal against the findings of fact made by the trial Court, it was not open to the Appellant to raise any issue in respect of that decision and the lower Court was right to hold that the Appellant could not challenge the decision of the trial Court anchored on those findings. Reliance was placed on IBERO V. UME-OHANA (1993) 2 NWLR (PT. 277) 510; PURIFICATION TECHNIQUE (NIG.) LTD V. JUBRIL (2012) 18 NWLR (PT. 1331) 109.

He further submitted that the Appellant cannot before this Court, seek to challenge the findings made by the trial Court that were not challenged in the Court below as to do so would be seeking to confer on this Court a jurisdiction not conferred on it by the Constitution or by statute. Reliance was placed on HARRIMAN V. HARRIMAN (1987) 2 NSCC 930; ELIGWE V. OKPOKIRI (2015) 2 NWLR (PT. 1443) 348. It was further submitted that the Appellant’s contention to the effect that the findings of facts made by the trial Court were made in favour of non-parties to the suit is misconceived because an action by an attorney is akin to a representative action and that where an action is instituted in a representative capacity, the action is by and against those represented by the named parties. He referred to the case of OKONJI v. NJOKANMA (1989) 4 NWLR (PT. 114) 161.

​On issue 3, learned counsel submitted that an appellate Court is bound to consider and make pronouncements on all issues formulated by parties for the determination of the appeal distilled from competent grounds of appeal. The cases of GOODWILL & TRUST INVESTMENT LTD & ANOR V. WITT & BUSH LTD (2011); OKAFOR v. ABUMOFUANI (2016) 12 NWLR (PT. 1525) 117 were referred to. It was also submitted that an appellate Court is not bound to accept the issues formulated by the parties as it is within the competence of the Court to identify what it views as the real issues raised by the grounds of appeal and resolve them. Reference was made to TITILOYE & ORS V. OLUPO & ORS (1991) 7 NWLR (PT. 205) 519. That the lower Court considered submissions of counsel for the parties and affirmed the decision of the trial Court after it found no merit in the submissions of the Appellant’s counsel who refused to challenge the findings of facts made by the trial Court.

Counsel finally urged this Court to affirm the decision of the Court below and to dismiss this appeal for lacking in merit.

​The 10 pages Reply brief filed by the Appellant is a mere rehash of the submissions and arguments contained in the Appellant’s Brief of Argument. The essence of a reply brief is to respond to new issues raised in the Respondent’s brief and not to re-argue issues contained in the Appellant’s Brief. Where a Respondent has not raised any such new issue, it is of no use for the Appellant to file a reply brief. See DOGO V. STATE (2013) LPELR-20175 (SC); A.B.C. (TRANSPORT CO.) LTD V. OMOTOYE (2019) LPELR-47829 (SC); CAMEROON AIRLINES V. OTUTUIZU (2011) LPELR-827 (SC); AHMED V. AHMED & CO (2013) LPELR-21143 (SC); GODSGIFT V. STATE (2016) LPELR-40540 (SC).

On the basis of the foregoing, I hereby discountenance the Appellant’s reply brief. I shall therefore proceed with the determination of the issues raised in this appeal.

RESOLUTION

I have considered the issues distilled by counsel for the parties. The issues, although differently couched to strengthen their diverse postures, are similar in substance. In the light of this, I shall adopt the issues distilled by the Appellant for the resolution of the appeal. For ease of reference, the said issues are hereunder reproduced as follows:

i. “Whether the lower Court was right when it held that the issue of locus standi was academic and on the basis of which grounds 4 and 5 of the Appellant’s grounds of appeal and its issue 3 were struck out. (Distilled from Ground 1 of the Notice of Appeal).

ii. Whether the Appellant was obligated to challenge before the lower Court the findings of facts made by the trial Court in favour of persons who are not parties to the suit as constituted before it. (Distilled from Ground 2 of the Notice of Appeal).

iii. Whether the Lower Court was right when it failed or neglected to resolve the two competent issues formulated by the Appellant and the one competent issue distilled by the Respondent for the determination of the appeal in the judgment appealed against, (Distilled from Ground 3 of the Notice of Appeal).”

I shall proceed to resolve issues one and two together. Issue no. 1 is predicated on the locus standi of the Respondent to initiate the suit and the decision of the Court below to the effect that the said issue is academic. The position of the Court below that the issue, being jurisdictional in nature, is academic, is what the Appellant is disgruntled about.

​The legal concept of standing or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Claimant has a remote, hypothetical or no interest. In the absence of this legal standing, the Court has no jurisdiction to entertain the claim brought before it. See DANIEL V. INEC & ORS (2015) LPELR-24566 (SC); BASINCO MOTORS LTD V. WOERMANN-LINE & ANOR (2009) LPELR-756 (SC); OKWU & ANOR V. UMEH & ORS (2016) LPELR-26042 (SC); ITEOGU V. LPDC (2009) LPELR-1559 (SC).

According to the Appellant, Engineer Olabisi Mabogunje who initiated the suit which is the subject of the instant appeal as attorney of Professor Oluwatope Mabogunje and Professor Christiana Adesanya had no interest in the property in dispute, hence any relief granted to him was made without jurisdiction.

Now the poser at this point is whether the Respondent has any interest in the subject matter of this appeal clothing the two lower Courts with jurisdiction to entertain and grant his claims as contained in the statement of claim?

​In the determination of this issue, recourse must be made to decision of Court below with the view of ascertaining the validity of the Appellant’s complaint. At the Court below, the Respondent raised an objection to the competence of the Appellant’s grounds four and five which were said not to have arisen from the judgment of trial Court. Grounds 4 and 5 of the Appellant’s notice of appeal to the Court below were to the effect that the said Engineer Olabisi Mabogunje who initiated the suit had no locus standi to do so because he had no interest to protect in the property in dispute.

The Court below in its adherence to the principle of law was circumspect in treating those grounds as jurisdictional grounds which could be raised at any time in the proceedings, even for the first on appeal. In its judgment at pages 317-318 of the record of appeal as follows:

“Locus standi is a threshold issue. A party must have the locus standi to institute or commence a suit. Where a party had no locus standi to institute an action, the Court would have no jurisdiction to adjudicate on the matter brought before it; …

The Appellant therefore did not require the leave of Court to raise the issue of locus standi on appeal. Ground 2 of the Preliminary Objection is resolved against the Respondent.”

​The Appellant’s counsel at paragraph 4.1.12 of the Appellant’s brief submitted that since the issue of the locus standi of the Respondent to initiate the suit was raised before the Court below, the Court below therefore had a duty to examine same.

The question at this juncture is whether the Court below considered the Respondent’s locus to initiate the suit when raised by the Appellant or the Court only dismissed the objection challenging locus with the wave of a hand on the ground that the said challenge was academic?

The record bears witness that the Court below held at pages 317-320 of the record as follows:

“Although there was no specific complaint regarding the locus standi of Respondent taken at the lower Court, the further question is this: would its consideration at this stage amount to merely an academic exercise, as has been contended by the Respondent. The Statement of Claim at pages 4-9 of the Record of Appeal avers as follows:

1. The Claimant is an Attorney of Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya, the joint owners of the property known as No. 5, Fashola Street, Idi-Iroko Village, off Ikorodu Road, Lagos. The Claimant shall rely on the Power of Attorney dated 18th of March, 2010.

In the depositions of the Respondent’s witness at pages 11-15 of the Record of Appeal, Professor Oluwatope Mabogunje, stated thus:

“Engineer Olabisi Mabogunje is my brother and he is suing as my Attorney as well as Attorney of Professor Christiana Oluremi Adesanya. Both myself and Professor Christiana Oluremi Adesanya gave my brother a Power of attorney dated 18th of March, 2010 with regards to our property known as No. 5 Fashola Street, Idi-Iroko Village, off Ikorodu Road, Lagos.”

The said Power of Attorney dated 18/3/2010, reproduced at page 17 of the Record of Appeal, was admitted in evidence as Exhibit EOM 10.

The writ of summons, the Statement of Claim, which are the originating processes made clear the capacity in which the claimant brought the suit. The evidence adduced before the trial Court also made plain the capacity of the Respondent. In other words, ab initio, there was no mistaking the capacity in which the Respondent brought the action. The Respondent demonstrated his interest in commencing the suit as attorney of named principals.

In United Nigeria Company Ltd v Nahman & Ors ​ (2000) LPELR 10460(CA), the 1st Respondent as plaintiff in the lower Court by virtue of a Power of Attorney, had sued as: (Attorney for Jamil Abdallah).

The locus standi or capacity of the 1st Respondent therein to institute the action in his name was attacked. This Court, per Sanusi, JCA (as he then was) deliberating on agency through a power of attorney, relied on the views of the learned authors of the Halsbury’s Laws of England, 4th Edition clause 4 page 447 paragraph 774 and the terms of the Power of Attorney in issue therein to conclude as follows:

“Thus, from the foregoing the said Joseph Nahman the donee of the power of attorney is authorized to act on behalf of his principal or the donor of the power. Any act he did in his name is effective as if it was done by the donor.”

See also C.N Ekwuogor Investment (Nig) Ltd v Asco Investment Ltd (2011) LPELR-3899(CA).

The description of the claimant in the suit now on appeal therefore misled no one. The substance of a matter is always the pointer and not the description or mis-description as to form. I would, for this reason, agree with the Respondent that the issue at this stage is really academic. Ground 3 of the Preliminary Objection succeeds, grounds four and five of the grounds of appeal are accordingly”

Flowing from the hills of the above, it is safe to conclude that the Court below made an elaborate consideration of the capacity of the Respondent to initiate the suit and only arrived at the conclusion that the issue is academic because, the Respondent, having stated that he was suing as attorney of disclosed principals, had the capacity to initiate the suit. The Court below was of the view that since the Appellant was not misled as to capacity of the Respondent to initiate the suit, then credence would be given to the intent over form and also to substantial justice over technicalities.

​The finding of the Court below elaborately reproduced in the preceding paragraph, is a ratio decidendi. It therefore becomes vitally significant for the Appellant to appeal against it. The law is settled that the ratio decidendi of a case is the principle of law upon which the case was decided. It is this principle that is binding on the parties and capable of being the subject of an appeal. The ratio decidendi constitutes the authority on which the case stands. See: N.A.B. LTD. V. B. ENG. (NIG.) LTD. (1995) 8 NWLR (PT.413) 257 AT 289 H; ABACHA V. FAWEHINMI (2000) 6 NWLR (PT.660) 228; ODUGBO V. ABU (2001) 14 NWLR (PT.732) 45.

However, in the instant appeal, the Appellant only appealed against the conclusion of the Court below that the issue of locus was academic without appealing against the reasons for the conclusion. This is more like chasing a mirage. It is obscure that a counsel will labour on conclusions of a Court in an appellate exercise rather than the reasons leading to the conclusion.

The ratio decidendi of a case is the reason for the decision, the principle of the decisions. Having not appealed against the specific findings of the Court below regarding the capacity of the Respondent to initiate the suit, the consequence thereof is that the Appellant accepts the said findings as binding and conclusive on it and this Court will not in the slightest of ways distort such findings. Furthermore, the Respondent having tendered his power of attorney has disclosed his locus to institute the action.

​Having held that the Respondent has locus to the action which is the subject of the instant appeal, the Appellant was obligated to challenge the finding of facts made by the Court below in favour of Respondent.

The effect of the failure of the parties to appeal against these specific findings of fact by a Court is that the findings of fact are taken to be acceptable to them and the findings remain binding and are conclusively established between the said parties. See ALAKIJA v. ABDULAI (1998) 6 NWLR (Pt.552) 1 at 4; NDIWE v. OKOCHA (1992) 7 NWLR (Pt.252) 129 at 139-140; OPARA v. DOWEL SCHLUMBERGER (2006) 7 SC. (pt.111) 56: (2006) 15 NWLR (pt.2002) 342; STANDARD ENGINEERING CO. LTD. v. NIGERIA BANK FOR COMMERCE & INDUSTRY (2006) 13 LRCN 1330 at 1346 and ORJI v. ORJI (2011) 7 NWLR (pt.1275) 113 at 135.

Without further ado, issues 1 and 2 are hereby resolved in favour of the Respondent and against the Appellant.

​On issue no.3, the Appellant contended that the Court below failed to resolve two competent issues formulated by the Appellant and one competent issue distilled by the Respondent for the determination of the appeal. According to the Appellant’s counsel, the said issues which the Court abdicated its judicial dudes in respect of are:

1. Whether the trial Court was right when it held that Late Brigadier General S.A Adenihun (Rtd) had no legal or equitable interest in the property known as No. 5 Fashola Street, Idi-Iroko Village Off Ikorodu Road Lagos which he could mortgage to the defendant (appellant herein).
2. Whether the lower Court was right when it held that Adenihun having divested himself of his title to Professor Mabogunje and Professor Adesanya, he has divested himself of his title in respect of No. 5 and has nothing to convey to the defendant (appellant herein).
3. Whether the learned trial Judge was right in holding that late Brigadier General Sunday Ajibade Adenihun (Rtd) having divested his title to the property known as No 5 Fashola Street, Idi-Iroko Village, Off Ikorodu Road Lagos to Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya had no legal or equitable interest in the property to mortgage to the Appellant?”

​The law is well settled that a Court of law, whether of first instance or in its appellate jurisdiction like the lower Court which is penultimate in the hierarchy, has a duty to consider and resolve all issues submitted to it for adjudication except in the clearest cases. It would amount to a denial of fair hearing where the issues submitted by the parties have not been determined. See A.G. LEVENTIS NIG. PLC. V. AKPU (2007) 17 NWLR (PT. 1063) 416: ODETAYO V. BAMIDELE (2007) 17 NWLR (PT. 1062) 77; KOTOYE V. CBN (1989) 1 NWLR (98) 419.

The crux of the three issues which according to the Appellant were not considered by the Court below centre on who was entitled to the declaratory relief on the property lying, situate and being at No.5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos.

The Court below summarized the submissions of the Appellant and Respondent on the said issues at pages 323 to 332 of the record of appeal and in its resolution of the issues, the Court below held at page 333 of the record of appeal that failure of the Appellant to appeal against some specific findings of the trial Court regarding the ownership of the property in dispute means the said findings remain valid, binding, subsisting and presumed acceptable to or as between the parties.

​The Court below at pages 333-334 of the record of appeal held that:

“The learned trial Judge at page 215 of the Record of Appeal found and held as follows:

“The Claimants’ exhibit EOM 11 constitutes conclusive proof that the property No 5, Fashola Street, formally known as plot 15 Madam Fashola layout was sold by Brigadier General Adenihun to both Professor Mabogunje and Professor Adesanya on 18/11/92 and were put in possession exhibits EOM 12 & 13.

Furthermore, if the purpose of tendering a document as in this case, exhibit EOM 11 is to show that there was a transaction between the parties and the original owner, such document is admissible to establish the fact that indeed there was a purchase, such registrable instrument proves an equitable interest and payment of consideration or purchase price. There was purchase from Brigadier General Sunday Ajibade Adenihun (Rtd) by the Claimant in this case.”

The conclusion of the trial Judge, following the above finding, was to the effect that:

“Both parties are claiming their interest from a common grantor, Late Adenihun, it is my view that Adenihun having divested himself of his title to Professor Mabogunje and Professor Adesanya, he has divested himself of his title in respect of No 5 and has nothing left to convey. to the Defendant.” (Underlining mine for emphasis).

The Appellant in ground two of the Notice of Appeal had contended that this conclusion was an error of law. The above finding of fact by the trial Court was not at all attacked by the Appellant. In other words, as at 18/11/1992, Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya purchased No 5, Fashola Street from late Brigadier General Adenihun. This finding of fact is deemed admitted and cannot be interfered with by this Court. Having failed to attack the finding of fact upon which the conclusion was based, I do not see how the conclusion reached by the trial Court can be disturbed.” (Underlining mine).

Flowing from the hills of the above, can it be said that the Court below abdicated its duty by not considering the issues submitted by the parties on the ownership of the property in dispute? My answer is in the negative.

​From the presentation of the Appellant’s case right from the Court below to this Court makes it evident that the Appellant’s counsel is not conversant with appellate practice. The Appellant’s counsel failed to challenge specific findings touching on the substratum of the issues in dispute. In the absence of such appeal on specific findings, it is not the duty of an appellate Court to substitute its views in place of the findings not appealed against.

On the whole, I hold that this appeal is unmeritorious, same is hereby dismissed. The decision of the Court below which affirmed the declaratory reliefs and other reliefs granted to the Respondent by the trial Court is hereby further affirmed. The cost of N1,000,000 (One Million Naira) is hereby awarded in favour of the Respondent and against the Appellant.

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SC.854/2017

U.t.c. (Nig) Plc V. Peters (2022)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Port Harcourt division of the Court of Appeal, delivered on Thursday 19th February, 2009 – Coram: Kudirat M. O. Kekere-Ekun, Ibrahim M. M. Saulawa, Ejembi Eko, JJCA (as they then were) all now Justices of the Supreme Court.

The respondent herein, was the Plaintiff at the trial Court. By his amended statement of claim dated 28th November, 1995, the Plaintiff claimed in paragraph 15 as follows:

(a) A declaration that the purported summary dismissal of the Plaintiff by letter dated 30th April, 1984 is wrongful and unlawful and against the laid down conditions of service and the practice in the Defendant’s company.

(b) That the Plaintiff is therefore entitled to full benefits of all his entitlements in the UTC pension fund, the National Provident Fund Contributions.

(c) An injunction to restrain the defendant from tampering with the status quo of the parties vis-a-vis entitlement prior to the date of summary dismissal letter dated 30th April, 1984.

And or in the Alternative:

​(d) The Plaintiff claims N750,000.00 as damages for the unlawful and wrongful dismissal of the Plaintiff by letter dated 30th April, 1984.

The trial Court in its considered judgment delivered on 17th November, 2000 gave judgment in favour of the respondent against the appellant.

Dissatisfied with the decision of the trial Court led to an appeal by the appellant herein to the Court below. In its judgment delivered on Thursday 19th February, 2009, the appeal succeeded in part. The judgment of the trial Court which declared the dismissal of the respondent by letter dated 30th April, 1984 wrongful was affirmed. The award of N750,000.00 as general damages in favour of the respondent was set aside. The Court below then held that the respondent was entitled to his relief (b) above in paragraph 15 of the amended Statement of Claim. However, prayer (c) of the appellant’s counter-claim succeeded and the appellant was awarded general damages in the sum of N75,000.00 for the wrongful detention of its vehicle by the respondent.

​Further dissatisfaction led to the instant appeal by the appellant on three grounds filed on 10th March, 2009 at the Court below. Pursuant to the rules of this Court, briefs of argument were filed and duly exchanged by parties. Appellant’s brief of argument was filed on 25/1/2010. Respondent’s brief of argument was filed out of time on 29/3/2010 but deemed properly filed and served on 9/11/2021, the day the appeal was heard.

In the appellant’s brief of argument, the following issues were distilled for determination of the appeal.

Issues for Determination

1. Whether or not in a master and servant relationship, declaratory reliefs are grantable for wrongful dismissal.
2. Whether or not the learned Justices of the Court of Appeal were right in dismissing the appellant’s counter-claim when the respondent did not join issues with the appellant on the claims made against the respondent in the counter-claim.

In his own brief of argument settled by Akuro R. George Esq., the respondent formulated two issues from the three grounds of appeal filed by the appellant. The said two issues are couched in the following words:

1. Whether a declaratory relief can be granted in a master and servant relationship.
2. Whether the Court of Appeal was wrong in refusing to grant the appellant the amount claimed as special damages and the relief for restitution.

As can be seen clearly, the two respective issues of both parties are saying the same thing though differently couched.

In arguing the appeal, learned counsel for the appellant linked issue 1 to grounds 1 and 2 of the Notice of Appeal. He referred to the testimony of DW1 – one Michael Itsibor to the effect that the relationship between the parties was that of master and servant. He referred to pages 26-27 of the record. He contended that throughout his cross-examination he was not contradicted on the nature of the relationship between the parties as pleaded by the appellant and supported by the evidence of DW1. He referred to Exhibit ‘C’ which provides for the determination of the relationship or contract of employment by either party giving the necessary notice or salary in lieu of notice. He contended that the remedy available for wrongful dismissal is what is anticipated by the parties in a master-servant relationship, which is salary in lieu of notice. Learned counsel submitted that the Court below erred in law when it failed to follow the decision in Akinfosile Vs. Mobil Oil (Nig) Ltd (1969) 6 NSCC 376 at 380. He contended that damages for wrongful dismissal are not at large. And that the quantum of damages is dependent on the required length of notice. That it was the duty of the respondent to furnish the Court with materials needed for the assessment of damages. But in the absence of those materials, the claims for damages and or declaratory reliefs ought to fail. He relied on Morohunfola Vs. Kwara State College of Technology (1990) 4 NWLR (Pt.145) 506 at 519; Amodu vs. Amode & Anor (1990) 5 NLR (Pt.250) 356 at 373.

Learned counsel contended that the Court below ought not to have upheld the relief sought by the respondent in paragraph 15(b) of the amended statement of claim which was in the nature of a declaratory relief. He submitted that declaratory reliefs are not proper in a claim for wrongful dismissal in a master-servant relationship.

He urged the Court to hold that the relationship between the parties being that of master-servant, the only available remedy to the respondent was damages for wrongful dismissal. And having failed to provide the trial Court with a specific claim and the basis for the assessment of the quantum of damages, the Court below ought to have dismissed the entire claims.

In arguing issue no. 1, learned counsel to the respondent contended that it is discernible from the grounds of appeal filed by the appellant that its grouse is based on the decision of the Court below as it relates to the respondent’s relief for his entitlements under the UTC Pension Fund and National Provident Fund. Learned counsel further contended that the relief for entitlement due to the respondent is predicated on the declaration made with respect to the unlawfulness of the summary dismissal. He opined that the relief by itself is not a declaratory relief but a consequential one. He submitted that a consequential order is one giving effect to a judgment or order to which it is consequential. It is directly traceable to or flowing from that judgment or order duly prayed for and made. He relied on Dantsoho Vs. Mohammed (2003) 6 NWLR (Pt.817) 457 at 489, Agu Vs. Odofin (1992) 3 NWLR (Pt.229) 350, (1992) 3 SCNJ 161 and Akinbobola Vs. Plisson Fisko Nigeria Ltd (1991) 1 NWLR (Pt. 167) 270.

Admitting without conceding that the part of the judgment appealed against is declaratory, learned counsel submitted that the Courts are not in any way precluded by law from making declarations in respect of master and servant relationships. He further submitted that a declaratory relief by its inherent nature is a remedy for the determination of a justifiable controversy where the plaintiff is in doubt as to his legal rights. He relied on Oduyoye Vs. Lawal (2002) 3 NWLR (Pt.807) 432 at 497.

Learned counsel contended that the determination of whether or not an employment has been lawfully determined is by its very nature a declaratory relief. It is for this reason that the Courts have on several occasions granted declaratory reliefs in cases bothering on master and servant relationship. He relied on Chukwumah Vs. Shell Petroleum Development Company (1993) 4 NWLR (Pt.289) 527.

Learned counsel further contended that the fact that the relationship between the disputing parties, in this case, relates to master and servant relationship was never in contention and indeed was of common ground to the parties.

In the final analysis, learned counsel submitted that declaratory reliefs are available and can be granted by the Court in Master and Servant relationship. He urged the Court to resolve the issue against the appellant.

From the available evidence, certain facts are not in dispute between parties, hence they are deemed admitted. They include the following:

– The respondent was at all material times an employee of the appellant – UTC Nigeria Ltd having joined the company’s employment on 2/10/1962 as a Secretary/Typist and rose to the rank of Departmental Store Manager (Executive) on April, 1982.

– The respondent spent 22 years in the employment of the appellant.

– The relationship that existed between parties was that of Master-Servant.

– The respondent was summarily dismissed in writing with effect from 30th April, 1984.

– Condition of Service of the appellant is contained in Exhibit C.

– The respondent’s summary dismissal by the appellant was declared by the trial Court as wrongful and unlawful and against the laid down conditions of service and the practice in the appellant’s company.

The first issue being contested by the appellant is whether or not in the Master-Servant relationship that existed between parties declaratory reliefs are grantable for wrongful dismissal.

Generally speaking, master-servant relationship is the association between one in authority and a subordinate – especially between an employer and an employee. And employer-employee relationship is the association between a person employed to perform services in the affairs of another who in turn has the right to control the person’s physical conduct in the course of that service. See Black’s Law Dictionary 9th edition page 1402.

It is clear from the record that the respondent had sought, before the trial Court, for declaration that his purported summary dismissal by the appellant in April 1984 was wrongful and unlawful among other things.

Declaratory claims are said to be invitations to the Court to make pronouncement on the legal position of a state of affairs and it is by itself not enforceable in law. Declaratory judgment therefore is a remedy for determination of a justifiable controversy where the plaintiff is in doubt as to his legal rights. It is granted as a judicial discretion only in circumstances in which the Court is of the opinion that the party seeking it is entitled, when all facts are taken into account.

As earlier stated, the respondent was a servant of the appellant as the Master. He served the appellant for twenty-two (22) years prior to his said summary dismissal. He considered his dismissal as wrongful and unlawful but wanted the Court to so declare putting all the required and relevant facts before the Court. A wrongful act is characterized by unfairness or injustice. Contrary to law.

In the judgment of the trial Court, it was found as follows on page 49T of the records:

“In the suit before me, the plaintiff was employed by the Defendant and the conditions of service are as stated in Exhibit “C” – this is the document that binds the relationship between the parties. The Exhibit “C” is a mere condition of service drawn up by the Defendant to guide the employment terms and conditions. My attention has not been drawn to any statute under which the plaintiff is employed. I have not been shown either that the relationship has any statutory flavor. I have no doubt in my mind including that the relationship between the plaintiff and the defendant does not go beyond mere Master/Servant relationship.”

The Court later found and held that the dismissal of the respondent as defendant was wrongful and unlawful. In other words, the trial Court granted the declaratory relief sought in paragraph 15(a) of the amended Statement of Claim. That is, the respondent’s summary dismissal by the appellant was declared wrongful and unlawful. Generally, it is the practice that a declaratory relief will be granted where the plaintiff is entitled to relief in the fullest meaning of the word. See Guaranty Trust Co. Vs. Hamay (1951) 2 KB at 572, Chukwumah Vs. Shell Petroleum (Nig) Ltd (1993) LPELR 864 (SC). There is no doubt that the trial Court was right in granting the declaratory relief sought by the respondent on the wrongful act of his summary dismissal. The Court below was therefore correct in affirming the grant of the declaratory relief sought by the respondent on his summary dismissal. In the circumstance, issue no.1 is resolved against the appellant.

Issue no.2 of the appellant is whether or not the learned Justices of the Court of Appeal were right in dismissing the appellant’s counter-claim which the respondent did not join issues with the appellant on the claims made against the respondent in the counter-claim.

It is clear on record that in paragraph 21 of the appellant’s counter-claim at page 11 of the record of appeal, the appellant indeed counter-claimed as follows:

(a) N1,500,000.00 being the current value of Peugeot 504 GR with Registration No.RV6922PD;

(b) N41,087.67 from its store for which the respondent was the Store Manager;

(c) N100,000.00 being general damages for wrongful detention of the car.

The total amount of special damages claimed was N1,641,087.00.

In the alternative to paragraph 21 (a) the appellant sought an order for the delivery of the vehicle in a perfect mechanical state.

There is no doubt that the Court below did not outrightly dismiss the appellant’s counter-claim as alleged.

Ordinarily, the law is clear that special damages must not only be specifically pleaded, they must be strictly proved by credible evidence of particular losses. See Luke N. Onyiorah Vs. Bendict C. Onyiorah & Anor (2019) LPELR 49096 (SC); Okafor & Ors Vs. Obiwo & Anor (1978) LPELR – 2413 (SC).

The Court below truly found that the failure of the respondent to file a defence to the counter-claim, in the circumstances of this case would not relieve the counter claimant of the burden to establish his claims. The Court below had found as follows in the counter-claim:

“The only witness for the appellant was DW1 – the Accounts Supervisor. In proof of paragraph 21(b) he tendered Exhibit L, the Stock taking report prepared by one J. O. Onakunle, who did not testify. On this document, the learned trial Judge held thus at pages 49-49w of the record:

It is to be noted that the plaintiff has contended that he was not invited when the stocktaking was made but all keys were taken away from him. Unfortunately this J. O. Onakunle was not called to clear this serious allegation. In the face of this serious doubt, can we say there was indeed a loss in the Departmental Store at Port Harcourt. Can we say that Exhibit L is credible documentary evidence without subjecting it to a proper test through the maker? It is my view therefore that no special damages based on Exhibit L has been proved against the plaintiff.”

Where a trial Court has satisfactorily performed its function evaluating evidence and ascribing probative value thereto, an appellate Court would not interfere with its findings on such evidence.

​

Still on the counter-claim by the appellant, the Court below found that there was no iota of evidence whatsoever in proof of the special damages claimed for the value of the Peugeot 504 GR. But the fact that the said vehicle was still in possession of the respondent was not in dispute.

Upon review of the pleadings and the findings of fact from the available evidence, the Court below found that the appellant had established the wrongful detention of the vehicle – Peugeot 504, GR by the respondent.

Even though the Court below had found that the appellant failed to prove the special damages in its reliefs (a) and (b), the appellant was found to have proved relief (c) – general damages for wrongful retention of the vehicle. The trial Court was therefore rightly adjudged to be in error in dismissing the counter-claim in its entirety. The Court below then granted the appellant the counter-claim for wrongful detention of its Peugeot 504 GR which was in possession of the respondent. Hence the appeal succeeded in part at the Court below. The appellant was therefore wrong to generally say that the counter-claim was dismissed by the Court below. There was misconception of the judgment of the Court of Appeal. The second issue is also resolved against the appellant.

In the result, the two issues for the determination of this appeal are resolved against the appellant. The appeal therefore fails and is liable to dismissal.

Accordingly, the appeal is dismissed. The judgment of the Court below stands and it is affirmed.

Appeal dismissed.

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SC.17/2010

The Incorporated Trustees Of Ladies Of Saint Mulumba, Nigeria V. Ekhator (2022)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Applicant as Claimant, filed a suit against the Respondent at the Edo State High Court, involving “a piece or parcel of land situate and known as Ward 40/B Aduwawa Area, Benin City”. At the trial Court, the Parties pleaded and tendered separate Certificates of Occupancy issued by the Edo State Government, and the Issue boiled down to whether the Claimant established the identity of the land in dispute. In its judgment delivered on 31/1/2017, the trial Court held that —

A Claimant who fails to prove the exact location or identity of the land it claims, cannot be said to have proved his title to land. After due consideration of the entire evidence adduced, I hold that Claimants have failed woefully to prove their case on the balance of probability as required by law. Accordingly, I hereby dismiss the Claimants’ Suit in its entirety as lacking in merit.

The Applicant appealed and, in its judgment delivered on 4/12/2019 the Court of Appeal compressed the Issues presented by both Parties as well as their arguments into one Issue for Determination; that is:

Whether the Appellant had by preponderance of evidence established the identity of the land, subject matter of the suit, and if not, whether the lower Court was right to dismiss the suit.

It resolved the Issue against the Applicant, and concluded as follows:

It is not necessary to call the Surveyor, who made the survey plan. In any case, the Claimant instead of pointing fingers at the speck of wood in the Defendant’s eyes, should have taken care of the log of wood in its own eyes by filing a composite plan to prove the identity of the land. The strong contention of the Defendant that there was a previous litigation on the said land further complicated issues for the Claimant. The Defendant also tendered litigation survey plan with No. 150/ED/151/2013 in respect of the earlier Suit No. B/6/07. The Defendant in his Statement on Oath deposed thus … In the face of all the above, the need to file a Composite Plan by the Appellant should have stared it in the face. It was a glaring need. Yet, it was not filed. I have no hesitation in resolving the sole issue in favour of the Respondent. This Appeal lacks merit. It is hereby dismissed. The judgment of Edo State High Court in Suit No. B/486/2012 delivered on 31/1/2017 is accordingly affirmed.

The Applicant failed to appeal against the said judgment within time, and it has now filed this Application on 6/5/2020, praying this Court for an extension of time to seek leave to appeal; leave to appeal; and an extension of time to file the Notice of Appeal against the judgment of the Court of Appeal. The Grounds for this Application are that –

i. The Grounds in the proposed Notice of Appeal contain substantial issues of fact and law that require the consideration of this Honourable Court.

ii. The Grounds in the proposed Notice of Appeal evoke serious issues as to the correctness of the judgment of the Court of Appeal.

iii. The failure of the Applicant to seek leave to appeal against the judgment of the Court of Appeal within the time stipulated in the Supreme Court Act Cap S. 15, LFN 2004 was due to inadvertence of Applicant’s Counsel; and that –

iv. The inadvertence of Counsel cannot be visited against the Applicant that is seeking to exercise its constitutional right to appeal against the judgment of the Court of Appeal.

The Application is supported by a 20-paragraph Affidavit with three annexures, and it also filed a Brief in Support of Motion on Notice For Leave to Appeal. The Respondent filed a 15-paragraph Counter-Affidavit to which he attached a judgment in another Suit No. B/6/2007 as Exhibit EK, and he also filed a Written Address in Support of Counter-Affidavit. In response, the Applicant filed a Reply Affidavit to the Respondent’s Counter-Affidavit and a Reply Brief.

In its Brief, the Applicant submitted that the sole issue, which arises for determination of this Application is, “whether the Applicant has satisfied the legal requirements to sustain the reliefs sought before this Honourable Court”.

The Respondent, however, submitted that the sole Issue for Determination is:

Whether the Applicant has shown good and substantial reason for failure to appeal within the prescribed period, and whether the proposed Grounds of Appeal show good cause while (sic) the appeal should be heard to enable this apex Court exercise its discretion in favour of granting the Application.

​The Issue formulated by the Respondent is a bit of a mouthful and I will adopt the Issue formulated by the Applicant, which is concise and straight to the point. Besides, the Applicant is mindful of its circumstances because it cited the case of Malari & Ors v. Leigh (2018) LPELR-43823 (SC), wherein this Court held:

For the grant of an application for enlargement/extension of time within which to appeal or within which (where necessary) to seek leave to appeal and its (the latter’s) other concomitant/complimentary reliefs i.e., for leave to appeal and for extension of time within which to appeal, the Courts especially this Court, have/has made it abundantly clear that the Applicant must comply with the requirements of the law, Rules of Court and practice –

– a) Where a person who intends to appeal has not, for some reasons, filed his appeal within the time prescribed by law/Rules of Court then he has to seek for extension of time to comply with stipulations of those Laws/Rules b) Where an appeal is by the constitutional provision, to be initiated by leave of Court and the time within which to seek for that leave has lapsed, then a person has to apply for: i. Extension of time within which to seek leave to appeal; ii. leave to appeal and; iii. extension of time within which to appeal/file a Notice of appeal. Reliefs (i) – (iii) are what are generally referred to as “the three-legged prayers”, “or” “trinity prayers”.

The Applicant submitted that it satisfied these principles, and apart from the Trinity Prayers outlined, an Applicant must also satisfy two conditions, namely:

i. Good and substantial reasons for failure to appeal within the prescribed period; and

ii. Grounds of appeal which prima facie show good cause why the appeal should be heard -FHA V. Kalejaiye (Nig) Ltd (2010) 19 NWLR (R. 1226) 147 and Malari & Ors V. Leigh (supra) cited.

Furthermore; that these conditions must co-exist for an application to succeed, citing FHA V. Kalejaiye (Nig) Ltd (supra), therefore the questions now are –

(a) Has the Applicant satisfied the requirements of good and substantial reason for failure to appeal or seek leave to appeal within the time prescribed by law; and

(b) Whether the Applicant’s proposed Notice of Appeal discloses Grounds of Appeal, which prima facie show good cause why the appeal should be heard.

It further submitted that mistake or inadvertence of Counsel that necessitates a delay in appealing within time is a special circumstance to warrant an order for extension of time to appeal, citing Akinpelu V. Adegbore (2008) 10 NWLR (Pt. 1096) 531, and then it referred to the following paragraphs of its Affidavit:

7. The Applicant was dissatisfied with the judgment of the Court below and thereby instructed its Lead Counsel, Dr. T. C. Osanakpo, SAN to appeal against it to this Court.
8. The Lead Counsel promptly prepared the Notice of Appeal and directed me to prepare a Motion on Notice to seek leave to appeal against the judgment of the Court of Appeal dated 4/12/2019 which is deposed to in paragraph 6 of this Affidavit.
9. I inadvertently failed to comply with the instructions of my Learned Senior in Chambers – Dr. T. C. Osanakpo, SAN, the Lead Counsel of the Applicant.
10. It was on 9/3/2020 when Dr. T. C. Osanakpo, SAN was reviewing the matters assigned to me to work on that I became seized of the fact that the time to seek leave to appeal against the judgment of the Court of Appeal expired on 3/3/2020.
11. The failure to take appropriate steps to seek leave to appeal within time against the judgment of the Court of Appeal dated 4/12/2019 was entirely due to my inadvertence.
12. It was also on 9/3/2020 in the course of review of the Applicant’s matter with Dr. T. C. Osanakpo, SAN, I realized that the proposed Notice of Appeal of the Applicant contains grounds of mixed law and fact. (Proposed Notice of Appeal attached as Exhibit Cl.
13. On 9/3/2020 when I was involved in the review of the facts, I realized that the time to seek leave to appeal against the judgment of the Court below expired on 3/3/2020.
14. On 9/3/2020 during the review of the case of the Applicant – Dr. T. C. Osanakpo, SAN, informed me in the conference room of our office at Louis Chambers, 350 Aba Road, Port Harcourt at about 4pm and I verily believed him that the extant Application of the Applicant needs to contain the following reliefs (Trinity Prayers listed).

​It also submitted that the proposed Notice of Appeal (Exhibit C) shows good grounds why the appeal should be heard as discernible in paragraphs 12 and 18 of the Affidavit in support of this Application, wherein it was averred that –

I was informed by Dr. T. C. Osanakpo, SAN also on 9/3/2020 in our conference room and I verily believed him in respect of the following facts namely –

(i) That the grounds in the Notice of Appeal exhibited herein as Exhibit C raise substantial issues of fact and law that require the consideration of this Court.

(ii) The Grounds in Exhibit C are substantial and cannot be dismissed with a wave of the hand or ascribed to be totally lacking substance.

(iii) The Grounds in Exhibit C evoke serious debate as to the correctness of the decision or judgment of the Court below

(iv) The Applicant’s Grounds of Appeal are to evoke the intellect and reasoning faculties of the Honourable Justices of the Supreme Court.

(v) The Applicant’s Grounds of Appeal are not frivolous.

Respondent cited Elias V. Ecobank (2019) 4 NWLR (Pt. 1663) 381, on discretionary power of this Court, which must be exercised judicially and judiciously, and cited the following cases on the legal requirements:

– NNPC V. Samfadek & Son Ltd. (2018) 7 NWLR (Pt. 1617) 1 at 8

– Ikenta Best (Nig.) Ltd. A.G Rivers State ​

– (2008) 6 NWLR (Pt. 1084) 612

– FHA V. Kalejaiye (supra)

– Chime V. Onwuegbu (2010) 14 NWLR (Pt. 1373) 58

– Imegwu V. Okolocha (2013) 9 NWLR (Pt. 1359) 347

– Itsueli V. SEC (2016) 6 NWLR (Pt. 1507) 160

– Oloko V. Ube (2001) 13 NWLR (Pt. 729) 161

– In Re: Alase (2002) 10 NWLR (Pt. 776) 563

– Bank of Baroda v Mercantile Bank (1987) 3 NWLR (Pt. 60) 23

He argued that facts deposed to by the Applicant do not disclose any good and substantial reason for its failure to appeal within time, and are only “a disclosure of counsel’s ineptitude, tardiness and ignorance of law erroneously or inadvertently labeled as “Inadvertence of Counsel”; and that when this Court was not bogged down by excessive workload, this could be granted if predicated on counsel’s inadvertence as the cause of the delay or failure to appeal within time, but that those liberal days appear to have gone by and may never return to this Court again.

​Furthermore, that the Court is no longer ready to accept that reason hook, line and sinker, as it has developed a fine tooth-comb to scrutinize any alleged inadvertence to discover whether it actually qualifies as such or it is being used as smokescreen to hide counsel’s ineptitude, tardiness, malfeasance or ignorance of the law, and he quoted what I said in GTB V. Est Master Constr. Ltd. (2018) 8 NWLR (Pt. 1622) 483, as follows –

“Inadvertence of counsel is a familiar refrain heard by this Court in Applications of this nature. It is true that inadvertence of counsel or counsel’s error in judgment, if reasonable, is an acceptable explanation for delay in applying for leave to appeal. As this Court pointed out in Shanu V. Afribank (Nig.) Plc. (2000) 13 NWLR (Pt. 684) 392/403 –

“In Akinyede V. The Appraiser (1971) A All NLR 162 counsel’s carelessness was held by this Court to be good reason for failure to appeal within time, provided such carelessness is pardonable. In Doherty v. Doherty (1964) 1 AII NLR 299 and Bowaje V. Adediwura (1976) 6 SC 143 pardonable inadvertence of counsel was accepted as good and substantial reason for the delay. In Alagbe V. His Highness, S. Abimbola & Ors (1978) NSCC 84; (1978) 2 SC 39 where delay was partly due to counsel and his clerk, the delay was held to be satisfactorily explained”.

However, it is not yet uhuru, so to speak, because Nnaemeka-Agu, JSC, warned counsel in Iroegbu V. Okwordu (1990) 6 NWLR (Pt. 159) 643 that notwithstanding the decisions of this Court on the said subject in Akinyede V. The Appraiser (supra), Doherty V. Doherty (supra), and the case of Ahmadu V. Salawu (1971) 1 All NLR (Pt. 2) 318 –

“The Courts will not regard this as universal talisman, the waiver of which will act as panacea in all cases. Courts must be satisfied that the allegation of the fault of counsel is true and genuine, but also that it is availing having regard to circumstances of the particular case”.

The 1990 warning of Nnaemeka, JSC, in Iroegbu V. Okwordu (supra) remained unheeded and because of the frequency of attributing almost all non-compliance with the Law and Rules of Court on the “mistake” or “inadvertence” of counsel, the current trend in judicial practice is to distinguish inadvertence of counsel from the ineptitude of counsel — see a recent judgment of this Court in Appeal No. SC. 113/2013 – Malari & Ors V. Leigh (unreported) (Malari & Ors V. Leigh (2019) NWLR (Pt. 1659) 341 delivered on 12/1/2018 where a similar Application was refused; l. T. Muhammad, JSC, stated as follows –

“This, I believe is one of the few instances where a Party must take a quick, effective and spontaneous decision in relation to the way and manner counsel handles his case. Otherwise, he must bear the consequence of the ineptitude, negligence or any act of God befalling his chosen counsel, mistake, inadvertence and sickness of counsel can always be distinguished from ineptitude, complete ignorance or malfeasance exhibited by counsel”.

Thus, the rule that a litigant should not be punished for the mistake or inadvertence of counsel does not extend to a situation where his counsel has exhibited tardiness and incompetence. The question in this case is whether inadvertence of counsel is within limits or has crossed the line to sheer ineptitude on the part of the Applicant’s counsel in this matter.”

He contends that Applicant’s Affidavit reveals a trinity of ineptitude, tardiness, and ignorance of the law advanced for its failure to appeal within the prescribed period of appeal (three months), and further argued.

(i) Paragraphs 7-9: Neither the Applicant nor the learned senior or lead counsel followed up on the alleged instruction to appeal or seek leave to appeal within the time prescribed. In Agbabiaka V. FBN (2020) 6 NWLR (Pt. 1719) 77, Eko, JSC, cautioned that Rule 16 of the Rules of Professional Conduct for Legal Practitioners 2007, enjoins a lawyer to competently represent his client and not neglect a legal matter entrusted to him. NNPC V. Samfadek & Sons Ltd (supra) and Adigwe V FRN (2015 18 NWLR (Pt 1490) 105, also cited.

(ii) Paragraphs 10 & 11: A demonstration of recklessness and ignorance of the law requiring that leave to appeal must be sought and obtained and the appeal itself must be filed within the statutory three months period as provided in Section 27(1) and (2) (a) of the Supreme Court Act.

(iii) Paragraphs 12-15: These depositions contradict the earlier deposition in paragraph 8 that he was given the file and directed to prepare a Motion on Notice for leave to appeal before time to appeal expired on 3/3/2020 and they also evince inexcusable ignorance of the law. This is doublespeak because from the averment in paragraph 8, it could not be true that it was upon the review of the file on 9/3/2020 that he discovered that leave is needed to appeal on grounds of mixed law and fact. Stanbic IBTC Bank V L.G.C. Ltd (2018) 10 NWLR (Pt. 1626) 96 cited. The Applicant’s inconsistency confirms the deposition in paragraphs 4, 5 and 7 of its Counter-Affidavit that the Applicant never intended to appeal against the said decision until this motion was filed alter the statutory time to appeal has lapsed. The trinity of ineptitude, tardiness and ignorance of the law is inexcusable.

He referred to Order 2 Rule 32 of the Supreme Court Rules, which says:

Where, in an appeal to the Court from the Court below, the Court below has affirmed the findings of fact of the Court of first instance, any application to the Court in pursuance of its jurisdiction under Section 233 (3) of the Constitution for leave to appeal shall be granted only in exceptional circumstances.

He also cited Calabar Central Co-op. Thrift & Credit Society Ltd. V. Ekpo (2008) 6 NWLR (Pt. 1083) 362, GTB V. Est Master Constr. Ltd. (supra), Ani V. Otu (2017) 12 NWLR (Pt. 1578) 30, and referring to the trial Court’s Judgment, Court of Appeal’s judgment and proposed Grounds of Appeal, attached to the Applicant’s Affidavit as Exhibits A, B and C respectively, he submitted that the proposed appeal is one against concurrent findings of fact by the two lower Courts, and the Applicant will only be entitled to leave to appeal by demonstrating exceptional circumstances warranting the appeal but that there is nothing “unusual’ or “much greater than usual”, in this Application, and the supporting Affidavit to warrant granting same.

He cited Obikoya V. Wema Bank (1989) 1 NWLR (Pt. 96) 157, Malari V. Leigh (supra), and Imegwu V. Okolocha (2013) 9 NWLR (Pt. 1359) 347, and after analyzing the proposed Grounds of Appeal vis-a-vis the decision appealed against, he argued that the Applicant has not shown any good and exceptional circumstances and Grounds of Appeal that prima facie show good cause why the appeal should be heard. He cited Ziregbe V. Eyikpimi (2020) 9 NWLR (Pt. 1279) 327, Alex V. FRN (2018) 17 NWLR (Pt. 1618) 228, Tsokwa V. Ibi (2007) 10 NWLR (Pt. 1574) 343, Elias V. Ecobank (supra), Midland Galvanising Ltd. V. O.S.I.R (2015) 8 NWLR (Pt. 1460) 26, ANPP V. Albishir (2010) 8 NWLR (Pt. 1198) 118, Akinpelu V. Adegbore (supra), and urged this Court to dismiss the said Application.

In the Applicant’s Reply to the Respondent’s Written Address, it pointed out that the three planks of the Respondent’s opposition are essentially that –

i. Inadvertence of counsel does not avail the Applicant;

ii. The Application does not disclose exceptional circumstances; and

iii. That the proposed Grounds of Appeal are not substantial.

On the first plank, it countered that it is inferable from his argument that the Respondent does not dispute that inadvertence of counsel is a good ground to premise an application for extension of time, which is not surprising, as the law has not changed that inadvertence of counsel can sustain an application for extension of time, citing Iyalabani Co. Ltd v. Bank of Baroda (1995) LPELR-1572(SC); that GTB V. Est Master Constr. Ltd. (supra), which he had cited, does not say that inadvertence of counsel would not avail such an Applicant; that although the Respondent had filed a Counter Affidavit, he does not directly contradict facts in its supporting Affidavit constituting the reason for the delay; and that there is no material inconsistency of any kind in its supporting Affidavit.

On the contention that the decision in Akinpelu V. Adegbore (supra) that it cited no longer represents the law on the inadvertence of counsel, it argued that the said decision has not been overturned, and none of the cases cited by the Respondent decided that inadvertence of counsel is no longer a ground to grant extension of time; that the decisions cited by the Respondent only sought to separate conducts of counsel, which are inadvertence, from conducts that do not qualify as inadvertence; and that as recent as June last year this Court, in Ogunpehin v. Nucleus Venture (2019) LPELR-48772(SC), held as follows:

“It is correct and indeed trite in law that Parties are not visited with punishment arising from the mistake or inadvertence or negligence of counsel when the mistake or inadvertence of counsel is in respect of procedural matters in which case, the Court would interest and lean towards accommodating the Parties’ determination of the case on the merits.”

​

As to the second plank, the Applicant conceded that the Respondent correctly stated the law that leave to appeal against concurrent findings of the two lower Courts will only be granted in exceptional circumstances but argued that he wrongly applied the law to this Application; that the reproduced portion of the judgment in Obikoya v Wema Bank (supra), cited by the Respondent, omits an important consideration in determining whether a ground of appeal is substantial, which is that the Court will not in the process determine the appeal, citing E.F.P. Ltd V. NDIC (2007) 9 NWLR (Pt. 1039) 239, wherein it was held.

“The duty of an appellate Court in the consideration of grounds of appeal proposed by an Appellant and filed in support of an application for leave to appeal is limited to seeing whether the grounds of appeal are substantial and reveal arguable grounds. It is not the duty of the Court at that stage to decide the merits of such grounds in support of the application, for to do so would amount to deciding the substantive matter in an interlocutory application.

It said it will not fall into the error committed by the Respondent in arguing the proposed grounds of appeal, but it submitted that the grounds raise substantial issues of both law and facts, which cannot be dismissed with a wave of hand.

Now, as the Parties rightly submitted, there are two conditions spelt out by the law that must be satisfied before an Application of this nature is granted — see Order 2 Rule 31 of the Rules of this Court, which provides as follows –

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

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

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

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

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

​Thus, where the time within which to appeal has expired, it is crucial that the Applicant files what this Court referred to in Malari V. & Ors V. Leigh (supra), as “the Three-Legged Prayers”, “Tripod Prayers” or “the Trinity Prayers” for:

(a) Extension of time to seek leave to appeal;

(b) Leave to appeal; and

(c) Extension of time to appeal.

For there to be a valid appeal, the three reliefs must be granted by the Court – Odofin V. Agu (1992) 3 NWLR (Pt. 229) 350. The Applicant must convince this Court that the delay is neither wilful nor inordinate and that there are good and substantial reasons for the failure to appeal within the prescribed period; and the grounds of appeal must prima facie show good cause why the appeal should be heard at all. The two conditions are conjunctive and not disjunctive, so they must co-exist – Nwora V. Nwabueze (2011) 15 NWLR (Pt. 1271) 467.

​In this case, the essence of the Applicant’s Application is that the delay in filing the said Application was due to inadvertence of counsel because after the lead counsel instructed the deponent, a Legal Practitioner in his Chambers, to prepare a Motion on Notice to seek leave to appeal, the Legal Practitioner did not comply with the instruction, and this oversight was not discovered until 9/3/2020, by which date, time to file the Application had expired on 3/3/2020.

The Respondent made an issue of this reason, inadvertence of counsel, given by the Applicant, and he even argued as follows in his Written Address:

“What is even more worrisome about the Application is the attempt by the Applicant and its Counsel to artificially bifurcate responsibility for the delay as the act of the Deponent of the Affidavit in support of the Application, and absolve the Principal in the Chambers. It is one law firm… and the default by any one counsel in the Chambers is the default of all the counsel for which the head must take responsibility as his own act. We (therefore) urge (this Court) to find that the apparent ineptitude of counsel that seemly resulted in the default to file the appeal within the prescribed time, by their own showing, is not the exclusive act of the Deponent but the default of all the counsel in Chambers and that of the Applicant.”

​

The Applicant countered that this submission does not advance the argument of the Respondent and is made solely to disrespect the Applicant’s counsel; that the law does not make a distinction between inadvertence of a junior and senior counsel; that all counsel in Chambers were inadvertent, as he argued, “is a more cogent reason than if only the junior counsel was inadvertent, not to visit the inadvertence on the litigant, but to grant the Application instead”.

As it is, the hue and cry over this issue is nothing but a storm in a teacup because, as far as this issue is concerned, the Applicant is right on all counts. First off, it is true that the position of the law that inadvertence of counsel can sustain an application for extension of time has not changed. The Respondent quoted what I said in GTB V. Est Master Constr. Ltd. (supra), but did not add that in that case, I concluded as follows on the issue of inadvertence of counsel:

“The question is whether inadvertence of counsel is within limits or has crossed the line to sheer ineptitude on the part of Applicant’s counsel in this matter. In paragraphs 18 & 19 of its supporting Affidavit, it was averred that… The way I see it, this first condition is not a drawback to the Application as the Applicant had filed an initial Application within time before the error in not including the first prayer to extend the time was discovered. Its counsel ought to have been more diligent, but in such circumstances, I do not think that the said error suggests ineptitude on counsel’s part.”

In this case, Respondent argued that Applicant’s Affidavit “reveals a trinity of ineptitude, tardiness and ignorance of the law”, but as the Applicant submitted, he filed a Counter-Affidavit but did not contradict the facts in its Affidavit. It is an elementary principle that affidavit evidence constitutes evidence, therefore, any deposition that is not challenged is deemed admitted – Owuru V. Adigwu (2018) 1 NWLR (Pt. 1599) 1. Apart from casting aspersions on the Applicant and its counsel, which is totally uncalled for, the Respondent did not challenge the facts in the Applicant’s Affidavit, and he is deemed to have admitted them. So, the reason for the delay in filing the Application is undisputed and accepted.

​Then again, the second condition, which goes hand in hand with the first, is that the Applicant must also show that there are grounds which prima facie show good cause why the appeal should be heard. But, as this Court said in Nwora V. Nwabueze (supra), this is not the time to enquire into the merit or otherwise of the case because that would certainly amount to deciding the substantive matter in an interlocutory application, which the law frowns upon. See also Obikoya V. Wema Bank (supra), wherein Obaseki, JSC, explained:

“The grounds of appeal required to be exhibited are only to show why the appeal should be heard. The Rule does not require the grounds to show why the appeal should be allowed. Although in both cases, the grounds of appeal should be substantial, the certainty required in the latter case does not necessarily need to be present in the former case. A ground showing good cause why an appeal should be heard is a ground, which raises substantial issues of fact or law for the consideration of the Court. It is a ground, which cannot be dismissed with a wave of the hand or totally lacking in substance. It is a ground, which evokes a serious debate as to the correctness of the decision of the Court below. It is a ground, which taxes the intellect and reasoning faculties of appeal Judges. It is a ground, which is not frivolous.”

​In this case, the proposed grounds of appeal without particulars, are as follows:

GROUND 1: The Court below erred in law by the application of wrong criteria to rely on Exhibit H to dismiss the Appeal of the Appellant.

GROUND 2: The Court of Appeal erred in law by failure to duly consider and pronounce on all the issues raised by the Appellant before dismissing the appeal.

GROUND 3: The learned Justices of Court of Appeal erred in law by the application of wrong criteria to take into consideration Suit No. B/6/07 to dismiss the appeal.

GROUND 4: The Court of Appeal erred in law by failure to exercise its judicial duty judicially and judiciously in dismissing the appeal of the Appellant.

GROUND 5: The Court of Appeal erred in law by the inference that Exhibit H is a composite plan in spite of the fact that it was not made by the Respondent’s Witness (i.e., DW2), who was not the maker of the document.

GROUND 6: The Court of Appeal erred in law by application of wrong criteria to adjudge that the Appellant failed to prove the identity of the land in the absence of composite plan evidenced in Exhibit H.

GROUND 7: The Court of Appeal erred in law by the failure of the Justices of the Court to pronounce on all the issues raised by the Appellant at the Appeal.

GROUND 8: The Court of Appeal erred in law on the inference that Exhibit H is a composite plan legally admissible by virtue of Section 53 of the Evidence Act and accorded evidential value to Exhibit H based on Section 53 of the Evidence Act.

The Respondent has argued vehemently that the Applicant has not adduced good and substantial reason for its failure to appeal within the prescribed time. He cited Order 2 rule 32 of the Supreme Court Rules and quoted what I said in GTB V. Est Master Constr. Ltd. (supra), on this particular point, as follows:

“As the Respondent rightly submitted, leave to appeal in this case where the Court of Appeal affirmed the findings of fact of the trial Court can only be granted in exceptional circumstances. This is clearly spelt out in Order 2 Rule 32 of the Rules of this Court, which provides that –

Where, in an appeal to the Court from the Court below, the Court below has affirmed the findings of fact of the Court of first instance, any application to the Court in pursuance of its jurisdiction under Section 233(3) of the Constitution for leave to appeal shall be granted only in exceptional circumstances.

The definition of the word “exceptional” is “much greater than usual” – see Cambridge English Dictionary. In other words, in this case where the Court of Appeal has affirmed the findings of fact of the trial Court, the Applicant has to jump through an extra hoop to convince this Court to grant this Application; how has it fared? Not very good, I must say. There is nothing exceptional about the circumstances of this case to sway this Court to grant this Application in favour of the Applicant.”

​The point made by the Respondent is well taken The Rules of this Court speak of grounds of appeal, which prima facie, show good cause why the appeal should be heard. Prima facie means “on the face of it, on first appearance but subject to further evidence or information”- see Black’s Law Dictionary, 9th Ed. The proposed eight Grounds of Appeal must show, on the face of it, “good cause” why the appeal should be heard before this Application can be granted. As l. T. Muhammad, JSC (as he then was) observed in Malari V. Leigh (supra):

“Even the ordinary man on the street knows what is good. In ordinary usage, it connotes a high standard or quality, which is opposite to bad or poor. Anything good in law is something, which is valid, sufficient, effectual, unobjectionable, sound and/or responsible. Thus, an Application for extension of time within which to seek leave to appeal is not granted as a matter of cause.”

An Application for extension of time within which to seek leave to appeal is not granted as a matter of cause, and where the Applicant is praying this Court for extension of time within which to seek leave to appeal against the concurrent findings of fact by the two lower Courts, it goes without saying that it is faced with a herculean task because it is only in exceptional circumstances that this Court will grant leave to appeal against such concurrent findings — see Tilbury Constr. Co. V. Ogunniyi (1988) 2 NWLR (Pt. 72) 64, wherein this Court said:

“Exceptional circumstances could be wide and could include misapplication of the facts in evidence, if the evidence available in Court is at variance with the findings or if the findings are patently perverse.”

​In this case, I have examined the Record of Appeal and without mincing words, I will say that there is nothing that could amount to exceptional circumstances to necessitate indulging the Applicant by granting this Application in its favour.

I have also scrutinized the proposed eight Grounds of Appeal vis-a-vis the evidence adduced by the Parties and the concurrent findings of fact by the trial Court and the Court of Appeal, and being a Justice of the Supreme Court, I cannot point to one ground that will tax my intellect and reasoning faculty – see Obikoya V. Wema Bank (supra). The second condition is found wanting.

The result is that this Application lacks merit and it is hereby dismissed. The Applicant shall pay the Respondent costs assessed at N1 Million Naira.

---

SC.220/2020(R)

Taiwo V. Frn (2022)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Lagos Division or lower Court or Court below, Coram: Nimpar, Ogakwu and Obaseki-Adejumo JJCA delivered on the 13th April, 2018 in which the appellant’s conviction and sentence by the trial Court per Ofili-Ajumogobia J. was affirmed by the Court below.

BACKGROUND FACTS

The appellant was charged on a one-count charge of dealing in 2.0 kilograms of Cannabis Sativa (otherwise know as marijuana). The appellant pleaded guilty to the charge. The prosecution tendered a confessional statement from Pidgin English language by one Oligbo Okey, an officer/agent of the NDLEA.

On this basis, the trial Court in its judgment delivered on 2nd March 2016 convicted the appellant of the Charge and sentenced him to 25 years imprisonment with hard labour.

​The prosecution called no witness but its Counsel tendered some documents from the Bar which were admitted in evidence as EXHIBITS PD1-PD9. The alleged confessional statement written in the Pidgin English was admitted as EXHIBIT PD3A while the English translation of same was admitted as EXHIBIT PD3B.

Prosecution’s counsel further urged the Court to convict the appellant ” …in accordance with Section 356 (2) of the Administration of Criminal Justice Act 2015″. The trial Court then adjourned to 2nd March, 2016 for judgment and same was delivered on that day.

​SUMMARY OF EVIDENCE

The appellant was alleged to have dealt in 2.0 kilogrammes of Cannabis Sative (Marijuana) The evidence upon which other exhibits rested was the alleged confessional statement of the appellant. The story therein painted a graphic picture of how the appellant sold Cannabis Sativa at Tipper Garage Ojodu Berger.

The alleged confession which was transcribed from ‘Pidgin English’ to English language showed that the appellant is an illiterate. The confession was written by one Oligbo Okey who works for the NDLEA, in the absence of the appellant’s counsel. Exhibits PDI, PD2, PD4, PD5, PD6, PD7, PD8 and PD9 which emanated from NDLEA and tried to establish the Charge against the appellant are all evidentially premised on his alleged confession.

​The alleged confession further represented that he, appellant was taken to the NDLEA office where the substance allegedly recovered was found to be Cannabis Sativa. Armed with the purported confessional statement it obtained from the appellant coupled with the guilty plea of the appellant, the Prosecution urged the Court to convict him in line with Section 356 (2) of the Administration of Criminal Justice Act 2015.

In his judgment dated 2nd March 2016, the Learned Trial Judge convicted the appellant of dealing in Cannabis Sativa and sentenced him to 25 years imprisonment with hard labour- Aggrieved by the conviction and sentence, the appellant appealed to the Court below on five (5) grounds of appeal and on the 13th April, 2018, the Court below dismissed the appeal and affirmed the conviction and sentencing of the appellant to 25 years imprisonment.

Again, dissatisfied the appellant has come before the Apex Court on a five grounds of appeal.

On the 3/2/2022 date of hearing, respondent and counsel were absent though served on 31/1/2022 and the appeal was heard on appellant’s brief alone by order made on 14/1/2022.

​Learned Senior Advocate, C.O.P. Emeka adopted the brief of argument of the appellant filed on 27/12/2018 in which he distilled three issues for determination, viz:

(1) Whether the Court below was right to uphold the appellant’s conviction on the strength of Exhibits PD3A and PD3B having misconceived the issue of its legal validity under Section 17(2) of the Administration of Criminal Justice Act 2015 with the issue of admissibility under the Evidence

(2) Whether the Court below was right to have affirmed the appellant’s conviction based on his plea of guilty when the mandatory provisions of the Administration of Criminal Justice Act, 2015 were not complied with?

(3) Whether the prosecution discharged the burden of proof against the Appellant beyond reasonable doubt notwithstanding his purported plea of guilty?

​Learned counsel for the appellant submitted that the Court below erred in law when it misconstrued the appellant’s complaint on Exhibits PD3A and PD3B, the alleged confessional statements. That those exhibits having been admitted much weight ought not to be laid on them in the light of Section 17 (1) (2) of the Administration of Criminal Justice Act (ACJA). He cited Madubigwe Awelle v The People of Lagos State (2016) LPELR-41395 CA; Mkpa v Mkpa (2010) 14 NWLR (pt.1214) 612 at 647 etc.

It was further contended for the appellant that the Court below wrongly affirmed the appellant’s conviction based on his purported plea of guilty when the learned trial Judge failed to comply with the mandatory provisions of the ACJA

Learned counsel for the appellant submitted that there was nothing on record to show that the charge was read and explained to the appellant in Pidgin English that he understood and so the conviction should fail. He cited State v Gwonto (1983) 1 SCNLR 142.

That the non-compliance with the statutory provisions on arraignment amounted to denying the appellant of his rights and that led to a miscarriage of justice. He cited Udofia v State (1988) 3 NWLR (pt.84) 533.

For the appellant, it was submitted that the prosecution failed to prove the essential elements of the charge beyond reasonable doubt. He cited Udosen v Sate (2007) 4 NWLR (pt.1023) 125 at 161 etc.

RESOLUTION

The appellant was represented by counsel at the stage of arraignment and after the reading and explanation of the charge to the accused/appellant by the Court. The appellant pleaded guilty to the one count charge and the prosecution tendered the substance and other relevant materials as exhibits among which was the confessional statement made by the appellant.

The stance taken by the appellant is that Section 17 (2) of the Administration of Criminal Justice Act, 2015 was not complied with and so the conviction a nullity. To fully appreciate the statutory provision I shall quote the stipulation thus:-

Section 17(2) of the Administration of Criminal Justice Act 2015 states thus:

“Such statement may be taken in the presence of a legal practitioner of his choice; or where he has no legal practitioner of his choice, in the presence of an officer of a Civil Society Organisation or justice of the peace or any other person of his choice. Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a Legal Practitioner.”

​The appellant contended that the Court below erred in law when it misconstrued the appellant’s complaint on Exhibits PD3A and PD3B, the confessional statements.

That Court had stated thus:

“This furthermore makes the word ‘way’ a permissive word and not a mandatory word as used in the section. Admissibility of a confessional statement is not dependent on the presence of counsel or relation at the time of making the confession, Section 29 (1) of the Evidence Act must be satisfied. The said Section 17 (2) of the ACJCA cannot override the clear provision of the Evidence Act”.

In a statute, when ‘may’ is used it is generally accepted that it is permissive but exceptions exist when ‘may’ could be mandatory. I shall refer to the case of EDEWOR V UWEGBA & ORS (1987) LPELR-1009 (SC) where the apex Court gave this explanation, it said:

“Generally the word ‘may’ always means ‘may’. It has long been settled that may is a permissive or enabling expression. In Messy v Council of the Municipality of Yass (1922) 22 S.R.N.S.W 494 per Cullen, CJ at pp 497, 498 it held that the use of the word ‘may’ prima facie conveys that the authority which has the power to do such an act has an option either to or not to do it. See also Cotton, L.I. in Re Daker, Michell v Baker ​(1800) 44 CH.D 282 But it has been conceded that the word may acquires mandatory meaning from the context in which it is used. See Johnson’s Tyre Foundary Pty Ltd v Shire of Maffra (1949) A.L.R, 8& The word may also acquires a mandatory meaning from the circumstances in which it is used, Most of the cases in which the word ‘may’ has a mandatory meaning relate to cases in which they are used in penal statutes conferring powers to Courts. In Baker (supra) Cotton L.I. said think great misconception is caused by saying that in some cases “may” means must, It can never mean (must) so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases where a Judge has a power given him by ‘may’, it becomes his duty to exercise it”. In Over v Felton (1966) A.LR. 1088 Jenkyn J, said that “it lies upon those who contend that an obligation exists to exercise that power to show in the circumstances of the case something which according to the above principles, creates that obligation. ” Per NNAMANI, JSC.

​The Court below stated the several options in implementation of Section 17 (2) ACJA and stated that the word ‘may’ used therein cannot by any stretch of the imagination be interpreted to mean mandatoriness, ‘May’ can be interpreted as compulsory in penal provisions and not otherwise, particularly in criminal procedure legislations.

Indeed, the said Section 17(2) of the ACJA is not a penalty section and in any event the issue of evidence is under a substantive law of Evidence and the Evidence Act provides for how to test the voluntariness of a confessional statement. The question may now arise as to whether the Administration of Criminal Justice Act being a Procedural Law can take precedence over the Evidence Act. It is a procedural breach which in most cases would not vitiate the trial. See Emedo v The State (2002) 15 NWLR (pt.789) 196 wherein the Supreme Court held that an irregularity is not a factor that would justify the setting aside of a verdict or decision unless a miscarriage of justice is established as propelling that decision of the Court.

​The question of whether an extra statement is confessional or not depends on the facts surrounding a given case since the test of voluntariness of a confession must be carried out before its admissibility. That is what informs the necessity of a trial within trial once the voluntariness of the statement is challenged by the accused that makes the word ‘may’ in Section 17(2) of the ACJA permission and not a mandatory word.

​With respect to the posture of the learned counsel for the appellant that the appellant did not understand the language used in the Court. This point seems to be of no moment since in the realm of criminal justice, it is a cardinal principle of our criminal jurisprudence that the accused or his counsel is duty bound to bring to the notice of the Court the fact that he does not understand the language in which the trial is being conducted, failure to do so will bring about the presumption that he has no cause for complaint. To buttress the point, is that the fact that the accused does not understand the language in which the trial is being conducted is within the knowledge of the accused and it is for him or his counsel to take the initiative to cry out and bring to the notice of the Court at the earliest opportunity or so soon as the situation has arisen. If he lets go of that claim of his right to complain at the appropriate time, he loses the right to complain thereafter. See Francis Durwode v The State (2000) LPELR-972; Ibrahim v The State (2013) LPELR-21883 (SC); Madu v The State (1997) 1 NWLR (pt.482) 386.

The point has to be brought out that the appellant was represented by counsel who did not raise the issue of the appellant not understanding the English language which is the language of the Court. Again to be said is that appellant gave his answers on arraignment in English language and so the current grouse of the appellant’s counsel is strange in the conflicting instance of an accused/appellant answering questions in English language and now turning around to claim a lack of understanding of the Court proceedings.

Another area needing be brought into the fray is the fact that the confessional statement was tendered and admitted without objection. The follow-up result of all these presentations is that it is too late in the day to challenge the document tendered without objection at the trial but now a matter to be brought in as a challenging factor on appeal. I refer to the case of Nwachukwu v The State (2002) 12 NWLR 508 at 542.

The circumstances which prevailed at the trial Court belie the posture of the appellant as accused person pleaded guilty to the charge on arraignment, the burden on the prosecution to prove the offence beyond reasonable doubt is lifted. Therefore, the practice of tendering the items recovered during investigation upon that plea of guilt is in fulfilment of the abundance of caution to support the plea of guilty and adds nothing to the requirement upon arraignment and plea of guilty. When there was no objection on any part of the proceedings at that point it is too late to do so later. See Adeleke v State (2013) LPELR-20971 SC.

It is now trite law that when an accused person pleads guilty he can be convicted solely on the plea of guilty as long as the offence is not punishable with death. See Nwachukwu v FRN (2007) 6 NWLR (pt.1029) 1; Nkie v FRN (2014) LPELR-22877.

​In reiteration, there is no duty on the prosecution to prove beyond reasonable doubt when the accused person pleads guilty. Therefore, a plea of guilty is valid if it made in an unambiguous and unequivocal way and the same is received by the trial Court not disturbing itself under the misapprehension of what the law is. See Emma Amanchukwu v FRN (2009) 2 SCM, (2009) 8 NWLR (pt.144) 475; Adeyemi v The state (2013) 14 NWLR (pt.1373) 129.

The difference in procedure comes in when capital offences are at play whereat an accused person shall not be convicted on a guilty plea. In such a case a “not guilty” plea is stipulated by law to be entered for the accused person.

In the instance, where the accused is not represented by counsel, the Court is expected to inquire more and be assured that the accused knows what he is doing. If he is represented by counsel, that indulgence is not granted. I rely on Omokuwajo v FRN (2013) LPELR-20184 (SC).

In further clarification, I shall cite and quote some guidelines prescribed by the Appellate and Supreme Courts thus:-

See Ibrahim v FRN (2016) LPELR-40059 (CA) as follows:-

“The law therefore provides for conviction upon a guilty plea without any further formality. A plea of guilty can earn a conviction when certain conditions are evident as held in the case of SUMANYA ISSAH TORRI V THE NATIONAL PARK SERVICE OF NIGERIA (2008) LPELR-8475 (CA) where the Court held:

“The requirement of the law before there could be a conviction on a plea of guilty are that: i. The Court must be satisfied that the accused understands the charge against him; ii. The Court must be seized of the facts alleged by the prosecution as constituting the offence charged; iii. The Court must ask the accused if he admits all the facts alleged by the prosecution; iv. The Court must be satisfied that the accused intends to admit the commission of the offence charged; v. The facts stated by the prosecution and admitted by the accused must be able to sustain the charge against the accused.

The apex Court on the consequences of a guilty plea held thus:

“It is established law that after a plea of guilty by the accused before the Court exercising jurisdiction in respect of criminal offences, the Court must formally proceed to conviction without calling on the accuser to prove the commission of the offence by establishing the burden of proof by law.” see DONGTOE V CIVIL SERVICE COMMISSION, PLATEAU STATE (2001) 4 S.C. (Pt.II) 43. See also NKIE V. FRN (2014) LPELR-22877 (SC).

​Generally, a plea of guilty that is unequivocal and a conscious act of the accused who has understood the charge explained can qualify for conviction without more.

Clearly, the Court of trial convicted the appellant properly upon the guilty plea and the other factors mentioned were surplusage and cannot be used as foundation to set aside the judgment. With the trial Judge being satisfied that the plea of guilty was done consciously, the Judge being satisfied, was right to proceed to conviction. The matter of his satisfaction, not being so recorded would not detract from the fact of the appropriateness of the procedure and that is not open to challenge the issue of satisfaction. Therefore, the burden of proof having been obviated by the plea of guilty as the Court below found and stated, there was no burden on the prosecution to prove the allegation. The case of Ochiba v State (2011) 17 NWLR (pta1277) 663 at 694 does not apply to the case in hand, the scenario existing thereby distinct from the one currently under discourse.

​In conclusion and the foregoing, this appeal definitely lacks merit and I do not hesitate in dismissing it. I affirm the decision of the Court of Appeal which in turn affirmed the judgment, conviction and sentence of the trial Court.

Appeal dismissed.

---

SC.980C/2018

Subaya Metalware (Nig) Ltd V. Toyota Motor Corp. & Anor (2021)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C. 

The Applicant, who is the first Respondent in the substantive Appeal, is praying the Court for leave to adduce additional evidence on appeal. The Appellant/Respondent (hereafter referred to as the Respondent), was the plaintiff at the Federal High Court wherein it claimed inter alia:

A Declaration that by virtue of a Certificate of Trademark Registration issued to the Plaintiff in Class 9 – and in Class 11 – respectively and particularly the registration since 1996, the Plaintiff is entitled to the exclusive use of the Trademark “LEXUS” in Classes 9 and 11.

The Applicant, as the first Defendant at the trial Court, denied the allegations, and also claimed that it is the registered proprietor and owner of the Trademark LEXUS in Nigeria with respect to vehicles and spare parts in Class 12 of the Fourth Schedule of the Trademarks Act.

But the Applicant failed to tender any proof of registration of its LEXUS trademark registration in the said Class 12, and in his judgment delivered on 21/6/2016, the learned trial Judge, Buba, J., held that –

The failure of the 1st Defendant to tender any proof of registration of its purported LEXUS trademark in any Class whether valid or not – shows clearly that the 1st Defendant lacks any legal right whatsoever to properly defend this Suit and should have simply admitted all the averments of the plaintiff in its Statement of Claim – The Court can only adjudicate this matter based on the preponderance of evidence before [it] as proffered by the Parties and same cannot be assumed or inferred.

The trial Court found in favour of the Respondent, and the Applicant appealed to the Court of Appeal. Although its Appeal was successful, the Court of Appeal also observed in its judgment of 29/12/2017 that:

Exhibit P4 is a detached car stereo System labelled “LEXUS Premium System”. This fact is undisputed by the parties herein. However, the Appellant argued that it does not fall within the categories of goods in respect of which the 1st Respondent owns a registered Trademark within Classes 9 and 11 under the Fourth Schedule of the Trademarks Act. That Exhibit P4 is a component part/apparatus of a vehicle in Class 12. Appellant’s Counsel submitted that the Appellant had shown ownership and proprietorship of the Trademark LEXUS for goods in Class 12. This assertion is, however, not borne by the records or traceable to the evidence generated at the trial. As submitted and rightly too in my view, by learned counsel for the 1st Respondent, there is no evidence on record, particularly Certificate of Registration, to show the existence of any LEXUS Trademark in Class 12, the Appellant did not lead any credible evidence to prove the fact that it is the registered owner or proprietor of the Trademark LEXUS for goods in covers Class 12. Class 12 covers Vehicles; apparatus for locomotion by land, air, or water – Argument of counsel contained in the Brief of Argument cannot take the place of evidence.

At the end of the day, the Court of Appeal found that Exhibit P4 was not used by the Applicant in relation to goods in respect of which the Respondent has a registered Trademark and held that the trial Court erred in concluding that it infringed on the said registered Trademark.

​

The Respondent is the aggrieved Party in the substantive Appeal, but the Applicant is praying this Court for leave to adduce additional evidence on appeal by tendering the following documents as Exhibits:

– Certificate of Registration dated 14/1/1997 – for LEXUS & DEVICE in Class 12

– Certificate of Renewal dated 10/1/1997 – for LEXUS & Device in Class 12

– Certificate of Renewal dated 6/12/2010 – for LEXUS & Device in Class 12.

The Grounds upon which the Application is brought are as follows:

a) The Registration and Renewal Certificates sought to be tendered would have an important effect on the appeal pending before the Supreme Court, as it would establish the Applicant/Respondent’s statutory rights to the LEXUS & Device Trademark in Class 12. This fact was admitted by the Respondent/Appellant in its Reply to the Statement of Defence.

b) The Applicant had previously pleaded the above-mentioned Registration and Renewal Certificates in its Statement of Defence and had intended to tender same during proceedings at the Trial Court.

c) The Applicant was, however, unable to tender the Registration and Renewal Certificate during trial, as they were missing from [its] Solicitors’ records. Applicant conducted a painstaking search in its office at No. 3 Sinari Daranijo Street, Victoria Island, Lagos to locate the Registration and Renewal Certificates all to no avail. The Certificate could not be located.

d) The Applicant’s Solicitors attempted with all reasonable diligence to obtain certified copies of the Trademark registration and renewals from the Trademark Registry. This was however abortive, as the provision of missing copies of the Registration/ Renewal Certificates were a necessary precondition to obtain certified copies from the Trademarks Registry.

e) The Applicant’s Solicitors eventually obtained copies of the Registration and Renewal Certificates in 2017 during the pendency of the appeal at the Court of Appeal. The said copies were obtained from the Applicant, who had also checked its records and only located the said Certificates during the appeal at the Court of Appeal, when the matter was already ripe for hearing. The Applicant located the certificates from its archive/database and sent same to its Solicitors. [Attached as Exhibits TMC1 to TMC3 are Certified Copies of Certificates for LEXUS & Device in Class 12 registered as of 22/1/1990, and dated 24/1/1997, 10/7/1997 and 6/12/2010]

f) The Registration and Renewal Certificates sought to be tendered are credible evidence, which are unlikely to be uncontroverted, as they are Certified True Copies issued by the Trademarks Registry. The Respondent had previously admitted the existence of this Trademark registration and renewals in its Reply to the Statement of Defence.

g) The evidence sought to be tendered would not change the character of the case from what existed at the trial Court and Court of Appeal, as the fact of [its] Trademark registration was pleaded in its Statement of Defence.

h) The additional evidence sought to be adduced is weighty and material to the determination of the Applicant’s Statutory rights in the Trademark LEXUS & Device for goods in Class 12.

i) The evidence sought to be tendered would have influenced the decision of the trial Judge in the Applicant’s favour, in view of the statutory rights and protection afforded by the trademark registration and renewal for LEXUS & Device trademark in Class 12.

j) It would be in the interest of justice and fair hearing to grant this Application.

​In addition to the 16-paragraph Affidavit in support of the Application, 9-paragraph Counter-Affidavit in opposition, and 15-paragraph Reply to the said Counter-Affidavit, the said Parties filed and adopted their respective Written Addresses, and in the Applicant’s Written Address, it was submitted that the two Issues for Determination are as follows:

1. Whether this Honourable Court has the requisite power to grant an Application of this nature; and
2. Whether the circumstances of the instant case are such as this Honourable Court should exercise its discretion in favour of the grant of the Application, in accordance with established principles of law.

The Respondent formulated the following Issues for Determination –

1. Whether the circumstances of the instant Application are such that this Honourable Court ought to exercise its discretion in favour of the 1st Respondent/Applicant.
2. Whether this Honourable Court should grant the instant Application, which seeks to challenge the concurrent findings of the lower Courts when the Applicant has not filed a Cross-Appeal.

​

First off, the question of whether this Court has the power to grant this Application or not cannot be an issue, as it is brought pursuant to Order 2 Rule 12(1) & (2) of the Supreme Court Rules, which says that:

(1) A Party, who wishes the Court to receive the evidence of witnesses (whether they were or were not called at the trial) or to order the production of any document, exhibit or other thing connected with any proceedings in accordance with the provisions of Section 33 of the Act, shall apply for leave on notice of motion prior to the date set down for the hearing of the appeal.

(2) The Application shall be supported by affidavit of the facts on which the Party relies for making it and of the nature of the evidence or the document concerned.

​Thus, this Court has the power to entertain applications of this nature and grant same in appropriate circumstances, which are well laid out.

What’s more, the Respondent’s contention that the Applicant has not filed a cross-appeal, therefore, this Court cannot grant the Application does not require any in-depth analysis. There is no provision of law or rule of practice that says a Respondent must file a Cross-Appeal before he brings an application under the said Order 2 Rule 12(1) of the Rules. So, the Respondent’s argument that the Applicant seeks to set aside concurrent findings of the lower Courts without filing a Cross-Appeal, is of no moment since this Court is not dealing with the main Appeal.

The position of the law, as decided in a long line of cases, is that this Court is vested with discretion to grant applications of this nature, therefore, the issue that calls for determination is simply whether in the circumstances of this case, this Court should exercise its discretion in favour of the Applicant and grant the said Application as prayed.

The Parties, in their Written Addresses, set out guiding principles or conditions that must be satisfied, and which must co-exist, before an application of this nature is granted. The Applicant cited Asaboro v. Aruwaji & Anor (1974) 1 All NLR (Pt. 1) 140, while the Respondent cited Owata v. Anyigor (1993) NWLR (Pt. 276) 390, Enekebe v. Enekebe (1964) 1 All NLR 42, Asaboro v. Aruwaji (supra) and Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 364, wherein this Court held that –

(a) The fresh evidence sought to be adduced, must be such that could not have with reasonable diligence, been obtained for use at the trial.

(b) The fresh evidence is such that if admitted would have an important, although not necessarily a crucial effect on the case.

(c) The fresh evidence must be such as is apparently credible in the sense that is capable of being believed and it need not be incontrovertible.

(d) The additional evidence could have influenced the judgment of the trial Court had it been made available and tendered at the trial Court.

(e) The fresh or additional evidence sought to be introduced must be material and weighty, although not conclusive.

On (a), the Applicant referred to paragraphs 7 & 8 of its Affidavit and argued that the documents could not with reasonable diligence, have been obtained for use at the trial, and as evidence of its clean hands, “it is on record that it pleaded the (said) documents at the trial Court”.

On (b), it submitted that it would have a fundamental effect on the justice of the case; and when juxtaposed with Respondent’s case that the use of a car stereo in a LEXUS branded car is an infringement of its LEXUS trademark registration in Class 9, this Court will find that the contention cannot stand in the face of the existence of a prior and competing legal right for car fittings, etc., which includes car stereo.

It also contends that the said Certificates are ex facie regular and credible pieces of evidence; that no oral evidence is required as the documents speak for themselves and corroborate and complement the existing evidence in the Record of Appeal; and that if received, they “will have an important, crucial and pivotal effect on the Appeal”.

In response to the Respondent’s contention that the Certificates were not missing, and could have been obtained, it cited Hakair Ltd. v. Sterling Bank (2019) LPELR-47638(CA), in which the Court of Appeal followed the decision of this Court in General & Aviation Serv. Ltd. v. Thahal (2004) 10 NWLR (Pt. 880) 50, and argued that the averments in the Counter-Affidavit are all hearsay evidence and so, incompetent, as the Respondent does not have personal knowledge of its Records.

As to whether the evidence would have influenced the decision of the lower Court, it referred to the trial Court’s statement regarding its failure to tender “any proof of registration”, and argued that if the said pieces of evidence were available at the trial Court, it would have influenced the trial Court’s judgment; that the evidence is weighty and material as the Certificates sought to be adduced in this Court formed “the kernel of the dispute at the trial Court”; that even the dictum of the trial Judge emphasized the importance of the Certificate; and that:

The materiality of the evidence sought to be adduced is clearly demonstrated in the statement of the trial Judge – and that this Application is not designed to overreach the [Respondent] or spring a surprise when the Appeal is heard. If it were so, the Applicant would not have pleaded the Registration and Renewal Certificates at the trial Court.

The Respondent, however, urged the Court to dismiss the Application, as the Applicant has not made out any case to warrant the exercise of the Court’s discretion in its favour. It cited Obasi v. Onwuka (supra) and UBA Plc. v. BTL Ind. Ltd. (2005) LPELR-8065 (SC) and submitted that appellate Courts lean against receiving fresh evidence on appeal, and this Court exercises its discretion in exceptional circumstances.

Furthermore, that the Applicant did not include the Certificate of Registration of its alleged “LEXUS & Device” trademark in Class 12, in the List and Copies of Documents to be relied upon at the trial and did not include it in the Additional List and Copies of Documents, thus, it never intended to tender the Exhibits at the trial, and its decision to seek leave to tender them now in this Court is just an after-thought.

It also contends that the Exhibits do not qualify as fresh evidence and citing Anatogu & Ors v. Iweka II & Ors. (1995) LPELR-484(SC) and Willoughby v. IMB (1987) LPELR-3495(SC) on what is fresh evidence, it argued that the Exhibits do not qualify as fresh evidence because:

– Exhibit TMC1 is the Certification of Registration dated 24/1/1997.

– Exhibit TMC2 is the Certificate of Registration dated 10/7/1997.

– Exhibit TMC3 is the Certificate of Registration dated 6/12/2010.

– These documents were in existence prior to the trial of this matter.

– The Writ of Summons commencing this Suit was filed on 12/12/2014.

– Exhibits TMC1 – TMC3 do not relate to something that has happened after the trial of this case, and they did not come to the knowledge of the Applicant after the trial of the matter at the Federal High Court.

– The Exhibits did not become newly available and obtainable.

– The Exhibits have at all material times been in the Applicant’s custody prior to the trial, during the trial, and after the trial of this matter.

– The Exhibits were at all material times in the archives/database of the Applicant, who deposed in Paragraph 9 of the Affidavit in support of the Motion on Notice for leave to adduce fresh evidence that the Certificates were located from its archives/database.

– The Applicant could have easily obtained certified true copies of the Exhibits from the 2nd Respondent.

– There is no evidence that the Applicant ever applied for the certified true copies of the Exhibits during the trial of this case.

– The 2nd Respondent is the statutory custodian of the Exhibits, which the Applicant seeks to tender, and the documents have been available to the members of the public at all material times.

– The Applicant never tendered to rely on Exhibits TMC1 – TMC3 at the trial of this case as shown in Exhibits P1-P2.

– The Exhibits sought to be tendered ought to have been adduced to establish pleaded facts at the trial of this case before the trial Court.

– The Applicant had the opportunity to tender Exhibits TMC1-TMC3 at the trial High Court but deliberately refused, neglected, and failed to do so.

It argued, citing Statoil Ltd. v. Inducon Ltd (2018) LPELR-44387 (SC) that Parties are required to adduce the evidence they need at the trial, and where any of them fails to utilize such opportunity, such evidence will hardly find its way into the body of evidence on appeal; and that the Exhibits are not new and were available for use by the Applicant, who failed to utilize the opportunity that it had at the lower Courts.

It further submitted that strangely, the Applicant never searched its archives/database when the matter was at the Court of Appeal, and suddenly discovers the documents after the hearing of the Appeal and now seeks to tender them at this Court as additional/fresh evidence; that it failed to meet the level of reasonable diligence expected from an Applicant; and that it never intended to tender them because they were controversial, and were not included in the Lists of Documents.

Furthermore, that it could easily have obtained them from the 2nd Respondent, who is the statutory custodian of Register of Trademarks in Nigeria, in line with Section 2 of the Trademarks Act; and that the Applicant ought to have done any of the following to establish that it in fact exercised reasonable diligence to obtain the said documents:

– Apply for and obtain the Certified Copies of Exhibits TMC1-TM3 from the 2nd Respondent during the trial of this case.

– Apply to the 2nd Respondent for an extract of the Register of Trademarks relating to the entries on the registration of the “LEXUS & DEVICE” which it claimed it had in Class 12.

– Subpoena the Registrar of Trademarks, who was a party to the Suit, to produce the Certification of Registration.

​

It argued that the Applicant never did any of the above, which shows that this Application is an after-thought designed to repair the bad case that it presented at the lower Courts; and that the procedure for admitting further evidence is not at the disposal of an indolent litigant, and cannot be used for the repair of a bad case at the end of the trial.

It also contends that the admission of those Exhibits in this Court will not have an important effect on this case because the description of goods in respect of which it, the Respondent, registered “LEXUS” trademarks in Classes 9 and 11 is different from the goods in Class 12 and Applicant’s use of “LEXUS” for goods in Class 9 will still constitute an infringement of its own registered “LEXUS” trademarks in Class 9, thus, the admission or otherwise of the Exhibits in evidence will not have any effect on the outcome of the Appeal, and there is nothing to show that they will assist this Court in resolving issues in the Appeal.

It argued that the Exhibits are not credible as the description of goods for which Exhibit TMC1 was purportedly registered particularly “parts of and fittings, accessories and components for all the aforesaid goods” is extraneous and goes far beyond the description of goods in Class 12 as contained in the Trademarks Act and Nice Convention of 1987, and this discrepancy has impugned the credibility of the Exhibit.

​

It submitted that if it had been tendered at the trial, it would have cross-examined the Applicant’s witness, as well as the 2nd Respondent, on the credibility, validity and compliance of the said document with extant laws, citing Abu v. Ahmed (2016) LPELR-41327. Furthermore, that the Exhibits would not have influenced the trial Court’s judgment because they were not material and never formed part of the crux of the issues at the lower Courts; and assuming without conceding that the Applicant has a valid registration of “LEXUS & Device” in Class 12, it can still infringe and violate its own LEXUS trademarks in Class 9.

Its contention is that this Application was designed to overreach it, as the Applicant had the opportunity to tender the Exhibits at the trial, where it could have cross-examined its witness, but it failed to tender the documents because of indolence; that the impact of the Exhibits on the case is insignificant; that the credibility of the Exhibits is in issue and will open room for cross-examination before this Court; and that admission of the Exhibits without affording it the opportunity to cross- examine the Applicant’s witness on the credibility of the documents, will violate the principles of fair hearing enshrined in the Constitution.

The Applicant argued in its Reply on Points of Law that the relevant date is not the date of registration and renewal of the Certificates, but the date the Certified True Copies of the said Certificates were issued; that in line with the decision in Dike-Ogu & Ors v. Amadi & Ors (2019) LPELR-47847(SC), Copies of the Certificates were located during the appeal at the Court of Appeal and certified copies were issued in 2018, when the appeal was pending in this Court; that the said Exhibits are therefore fresh evidence to the extent that they were only obtained after the judgment of the Court of Appeal was issued in its favour in 2018.

It also cited the Court of Appeal’s decision Ombugadu v. CPC & Ors (2012) LPELR-8602(CA) that was affirmed by this Court in CPC & Anor v. Ombugadu & Anor (2013) LPELR-21007(SC), and submitted that the person with custody of the documents was the 2nd Respondent, who declined to issue a certified copy until a photocopy of the document is presented. Therefore, there was no way that it could by reasonable diligence produce the copies of the certificates that were missing from its records; that it continued with its search until it located the copies from its archives, whereupon, it filed this Application in this Court.

Furthermore, that the evidence would have influenced the decision of the Court of Appeal, which went ahead to hold that the purported evidence of infringement was a good in Class 12 and not a product in Classes 9 & 11; and the implication of that finding is that it would have reinforced a case of non-infringement, citing Hip Foon Hong v. Neotia & Co. (1918) AC 888 that was endorsed in Ombugadu v. CPC (supra).

On whether the documents are credible, it argued that all that the Respondent has done is “to prematurely controvert the documents”, which are credible and believable, being certified true copies of public documents that can be tendered from the bar, and 2nd Respondent, who issued them has not challenged the documents in any manner; and its puerile attempt to controvert facts in the document is not only premature, but an attempt to waste the precious time of this Court.

​In response to the Respondent’s argument on description of goods, it submitted that Class 12 description of goods clearly covers “Parts of and fittings, accessories and components for all the aforesaid goods” with respect to vehicles, which would include a car stereo, and is the evidence that the Respondent is trying with all its strength to endorse, when neither Class 9 nor Class 11 description of goods refers in any way to a car stereo as a good; that a car stereo is an integral part of the apparatus for a vehicle and readily fits into Class 12, and that goods in Classes 9 & 11 does not include vehicles spare parts like a car stereo, therefore, the reference to “parts of and fittings, accessories and components for all the aforesaid goods” in the certified true copies of the said trade mark registrations and renewal is credible and in order.

As to the Respondent’s argument on fair hearing, it submitted that the said Exhibits are certified copies of public documents, which can be tendered from the bar, without cross-examination, citing Kawu v. Minister, FCT (2016) LPELR-41142(CA), Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144 & Okiki II v. Jagun (2000) 5 NWLR (Pt. 655) 19.

​I have considered the pros and cons of granting this Application and a major factor that weighs heavily in the Applicant’s favour is that the documents sought to be tendered were pleaded, and the Respondent admitted in its Reply to the Applicant’s Statement of Defence that the Applicant had “registered the Trademark to LEXUS (word) in Class 12”. This is a crucial factor in the scheme of things because the Application would not stand a chance, if this were not the case – see Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94, wherein Karibi-Whyte, JSC, said:

Where evidence is available and could with reasonable care and diligence be made available to the Applicant at the time of the trial, the Court of Appeal will refuse to exercise its discretion to receive such evidence. However, if [he] referred to the document in his pleadings or evidence but did not tender it, the appellate Court can admit it.

It is trite law that the Court must always consider whether there are exceptional circumstances to warrant granting the Application and, whether this would be in furtherance of the justice of the case – see Owata v. Anyigor (supra), wherein Karibi-Whyte, JSC, also observed:

It is in the interest of justice, the efficient and effective administration of justice, and to minimize prolongation of litigation, to ensure that evidence, which ought to be admitted at the trial, but was not because diligent search did not lead to its recovery, is received in evidence on appeal When subsequently discovered, and is sought to be admitted. The maxim rei publicae ut sit finis litium is not only a statement of public policy, it is a principle of justice of undoubted relevance in all cases. It will not be justice to refuse to receive relevant and material evidence relied upon by Parties.

In this case, the first question that rears its head relates to “reasonable diligence,” which is an alternate term for due diligence, and it means “the care and attention that is ordinarily exercised by a reasonable and prudent person under the circumstances” – definitions.uslegal.com.

The Applicant averred in paragraphs 7 & 8 of its Affidavit that it’s Solicitors were unable to tender the said Certificates at the trial Court, as they were missing from its records, and though they “conducted a painstaking search in its office”, the Certificates could not be located; and they attempted “with all reasonable diligence” to obtain certified copies from the second Respondent, but did not succeed in doing so, because provision of the missing copies of the said Certificates were a necessary pre-condition to obtain certified copies from the Registry.

The Respondent argued that it could have applied and obtained the certified true copies from the second Respondent or subpoena the Registrar to produce them. But the point being made is that Applicant found itself in a Catch-22 situation, which is described as an impossible situation because you cannot do one thing until you do another thing, but you cannot do the second thing until you do the very first thing.

What is the point of the subpoena if second Respondent had to see copies of the missing Certificates before issuing certified copies? As it is, the Applicant’s assertion that it attempted with “all reasonable diligence” to obtain certified copies of the Certificates is not disputed.

The Respondent also raised a hue and cry over the dates on the said Certificates, but as the Applicant submitted, it is the date that the certified true copies were issued that matters, and they were issued in 2018 when the Appeal was pending in this Court – see Dike-Ogu v. Amadi (supra), cited by the Applicant, wherein this Court admitted the certified true copy of a 1928-1931 Report issued after the trial in 2010.

Of course, the said additional evidence, if admitted, would have an important effect on the case. For starters, it would put the records straight because the two lower Courts commented on the fact that the Applicant did not show the existence of a Lexus Trademark in Class 12.

The trial Court went as far as to say that since it failed to tender any proof of the said registration, the Applicant “should have simply admitted all the averments of the Plaintiff in its Statement of Claim”, and even as the Court of Appeal found in its favour, it observed that:

There is no evidence on record, particularly Certificate of Registration, to show the existence of any LEXUS Trademark in Class 12, Appellant did not lead any credible evidence to prove the fact that it is the registered owner or proprietor of the Trademark LEXUS for goods in Class 12.

More importantly, the fact that the Respondent admitted in its Reply to the Applicant’s Statement of Defence that Applicant registered the “Trademark to LEXUS (word) in Class 12”, makes it imperative that the documents, which are “apparently credible” in the sense that they are, thereby, capable of being believable, must be admitted in evidence.

There is no question from the comments of the lower Courts that the said additional evidence, which are indeed material and weighty, could have influenced the judgment of the trial Court, and would paint a better picture of the Court of Appeal’s Judgment in the main Appeal.

Overall, I am not swayed by any of the Respondent’s arguments against the Application. The Application is not an afterthought and far from being used for the repair of a bad case after the trial of the case; it will provide a level playing field for a proper adjudication of this case.

It is, therefore, in the interest of justice that this Application be granted as prayed and it is so granted. The Applicant is granted leave to adduce additional evidence by tendering the following as Exhibits:

(a) Certificate of Registration dated 14/1/1997, and numbered RTM 53395 for LEXUS & DEVICE in Class 12.

(b) Certificate of Renewal dated 10/7/1997, and numbered RTM 53395 for LEXUS & Device in Class 12.

(c) Certificate of Renewal dated 6/12/2010, and numbered RTM 53395 for LEXUS & Device in class 12.

The said Certificates of Registration/Renewal are hereby admitted as additional evidence for the determination of the substantive Appeal.

Application granted as prayed. There will be no Order as to costs.

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SC.561/2018(R)