Set Success Enterprises & Co Ltd V. Ibeju-lekki Local Government Council & Anor (2021) LLJR-SC

Set Success Enterprises & Co Ltd V. Ibeju-lekki Local Government Council & Anor (2021)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

The present appeal is a natural reaction by the Appellant against the judgment of the Court of Appeal, Lagos Judicial Division, delivered on June 12, 2008 in appeal no. CA/L/489/2005. By the judgment in question, the Court below, coram Ogunbiyi, JCA (as then was), Mshelia and Nwodo, JJCA, dismissed the Appellant’s appeal against the Judgment of the trial High Court delivered on May 19, 2005 (LD/1037/2002), which dismissed in part the Appellant’s claim against the Respondent for outstanding balance of contract sum and damages for breach of contract.

BACKGROUND FACTS

The Appellant is a limited liability company having the registered office thereof at 20/22 Adedoyin Street, Ketu, Lagos Slate. On the other hand, the Respondent is a Local Government Council having its Administrative Secretariat al Akodo, Lagos State.

The genesis of the case leading the to instant appeal is traceable to May 27, 2002. Indeed, that was the day the Appellant instituted the case in the trial High Court, thereby seeking against the Respondent the total sum of N26.5 Million being special and general damages for a stabilization contract awarded to the Appellant In the Respondent.

By the statement of claim, filed along with the writ of summons thereof on the date in question, the Appellant claimed against the Respondent:

Particulars of special damages.

a. The sum of N20,007076.60 being the balance of the contract sum of N35,007076.60k due to the plaintiff in respect of the stabilization of a 16.5 kilometers laterite road from Ajegbenwa to Dongo in Ibeju-Lekki Local Government Area of Lagos State; and

b. The sum of N1,500,000.00 being retention fee.

General Damages:

The sum of N5,000,000.00 being general loss suffered by plaintiff as a result of the unquantified damages suffered by the failure of the Defendant to pay the whole contract sum as and when due.

Interest on the special damages at the rate of 36% per annum till the date of judgment and thereafter at the rate of 6% per annum until the judgment debt and necessary costs is fully paid by the Defendant.

The Respondent reacted by filing a statement of defence to the claim, to which the Appellant filed a reply. Pleadings having been filed and exchanged between the respective parties, the suit proceeded to trial. In the course of which, the Appellant called two witnesses and tendered thirteen (13) documentary evidence, which were admitted as exhibits by the trial Court.

Contrariwise, the Respondent called one witness who testified in chief but failed to show up for cross-examination by the Appellant’s counsel.

At the close of evidence, the trial Court deemed it expedient to order for written addresses. Consequent whereupon, the Appellant filed its written address. However, the Respondent, for reason best known thereto, failed to file any written address as ordered by the trial Court.

The trial Court, not unexpectedly, proceeded to deliver the judgment on the said 19/05/2005, to the conclusive effect:

I am satisfied on the evidence before me that the claimant has been able to prove on the balance of probabilities, his entitlement to N6 Million being the balance of the 60% first instalment as per Exhibit P 10. The law is trite that the Court can award less but not more than what is claimed if that is what is proved by the evidence

OWENA BANK PLC V. OLATUNJI (2002) 13 NWLR (PT. 781) 259 AT 349 citing EKPE V. FAGBEMI (1978)1 LRN 137 at 140. I cannot also on the basis of the evidence before me hold that the claimant is entitled to General damages as claimed as there appears to be outstanding issues between the parties in respect of the work done on the project. The 1st defendant does not even consider the project has been completed.

The claimant in this case has sued both the 1st Defendant and its chairman as the 2nd Defendant. The contract agreement here was between the claimant and the 1st Defendant only. I do not see why the 2nd Defendant had to be joined in this suit. He is not a proper party to this suit and I so hold.

For this reasons given in the body of this Judgment therefore, judgment is hereby awarded in favour of the claimant against the 1st Defendant only in the sum with interest at the rate of 10%per annum from today 19th May, 2005 until the Judgment debt is fully paid. The claims for general damages are hereby dismissed. This is the judgment off his Court.

N20,000 costs to the claimant.

Not unnaturally, the Appellant, being dissatisfied with the judgment of the trial Court aforementioned, appealed to the Court below.

As alluded to above, the Court below dutifully heard the appeal and delivered the vexed judgment on the said June 12, 2008, to the conclusive effect:

On the totality of the appeal before us, the issues are hereby resolved against the appellant and in favour of the respondent. The appeal in the circumstance is devoid of merit and accordingly dismissed. The judgment of the learned trial Judge of the High Court of Lagos State delivered on 19th day of May, 2005 is hereby affirmed. With costs following events, I would award the sum of N30,000 in favour of the respondents.

Appeal dismissed with N30,000.

On 21/09/21, when the appeal at long last came up before us for hearing, the learned counsel had the opportunity of addressing the Court and adopting their respective briefs of argument prior to reserving Judgment to today.

DETERMINATION OF THE RESPONDENT’S

PRELIMINARY OBJECTION

It’s trite, that the Respondent has had the liberty of raising in the brief thereof (pages 2-12 of the Respondent’s Amended Brief of Argument) a preliminary objection, thereby vehemently challenging the competence of the Appellant’s notice of appeal, to the effect that:

The three grounds of appeal contained in the notice of Appeal dated 11th of September, 2008 and the issues/arguments formulated thereon be struck out for being incompetent having not complied with Order 8 Rule 2 (3) (4) of the Supreme Court Rules and/or bad for falsity.

Each of the three grounds of the notice of appeal has been copiously reproduced along with their particulars at pages 4-7 of the Respondent’s brief, viz:

Ground 1 Error in Law

The learned Justices of Court of Appeal erred in law in their interpretation of clauses 4, 5.2, 5.3 and 12 of the Contract Agreement between the parties (Exhibit P5), and thereby arrived at the erroneous conclusion the there was no certification of completion of contract works and that the Appellant was not entitled to full payment of contract sum, notwithstanding the documentary evidence on the contrary.

Particulars of Error

(i) The contract agreement executed by the parties tendered as Exhibit P5 was very clear, plain and unambiguous in its provisions as to the mode and stages of payment, inspection and certification, and the issuance of payment/completion certificate, which provisions are binding on the parties, and effect ought to have been given accordingly to them by the Court below.

(ii) The Court below was wrong in relying on its own observation from examination of the documents to decide matters which did not the actual evidence on record.

(iii) It vas in evidence that the Appellant had performed and complied with all the duties crated on its part by the contract agreement, and there was no complaint whatsoever by the Respondents of any defect or dissatisfaction within the six-month window for release of final payment, being the third stage of payment, namely payment of the retention fee.

(iv) Pursuant to Clause 5.2 of the Contract Agreement, the Respondent’ designated agent and representative, the Local Government Engineer, had duly inspected the works, and issued a payment certificate, certifying satisfactory execution of the works, and thereby entitling the Appellant to payment of the second stage payment of 30% of the contract sum as provided for in Clause 4 of the Contract Agreement.

(v) Pursuant to Clause 12 of the Contract Agreement, the Local Government Engineer (as the duly designated agent and on behalf of the Respondents) had upon inspection and due satisfaction, issued a completion certificate to the Appellant, tendered as Exhibit P8 entitling the Appellant to payment of the final payment envisaged in clause of the contract agreement, being the third stage payment provided for by Clause 4 of the said contract agreement.

(vi) The certificate by the Local Government Engineer, being a document of the Respondents, (Exhibit P8) was very clear in its certificate of “value of works to date being the entire contract works.

(vii) The certificate (Exhibit P8) was unequivocal in stating that the amount due for payment to the Appellant was the sum of N18,006,369.00 which is the balance, less the retention fee.

(viii) The lower Court was therefore in error in failing to hold that Exhibit P8 was the payment certificate issued by the Respondents or their representative, but rather placed reliance on a letter dated 8th March 2002 (Exhibit P10) written outside the six months retention and warranty period provided by Clause 4 of the contract agreement.

(ix) There was no evidence of any complaint made by the Respondents in respect of the work executed by the Appellant within the six months window for observation of defects and for retention fee.

(x) Extrinsic evidence such as Exhibit P10 ought not be used to vary the contents of a written contract validly entered into by the parties.

(xi) The interpretation placed Exhibit P5 and P8 by the learned Justice of the Court of Appeal occasioned a miscarriage of justice.

Ground 2: Error in Law

The learned Justices of Court of Appeal erred in law when they held that the Appellant failed to prove its case on balance of probabilities that it had fully executed the contract awarded with the terms of contract with the terms of the contract and thus entitled to full payment under the said contract, having due regard to the unchallenged evidence on record

Particulars of Errors:

(i) The Appellant had testified and tendered 13 documentary Exhibit in support of its case, particularly the contract document (Exhibit P 5) and the Certificate of Completion from the Respondents (Exhibit P8)

(ii) The lower Court was in error in holding that the completion certificate pleaded by the Appellant in paragraph 7 of its Statement of Claim was not tendered as a careful perusal of the pleadings reveals that same was Exhibit P8.

(iii) The Respondents had abandoned their defence at the trial, and had equally failed to file a Respondent’s brief of argument at the Court below despite all opportunities afforded them so to do, as rightly found by the Court below.

(iv) The Appellant’s evidence in the absence of any challenge by the Respondents was substantial and overwhelming, and it was open to the Court to act on such unchallenged and uncontroverted evidence, which was neither inherently incredible nor offended any rational conclusion.

(v) The issuance of Exhibit P8 pursuant to Exhibit P5 by the Respondents is conclusive proof that the Appellant had completely and satisfactorily executed the contract works.

(vi) The duty imposed by Exhibit P5 on the Appellant is to complete the contract satisfactorily to be certified by the Respondents’ designated professional and expert, and having done so, the duty arose on the part of the Respondents to issue the final certificate and release the retention balance to the Appellant.

(vii) The Respondents having issued the completion certificate through their Council Engineer as provided for by the contract agreement are not free to resile therefrom or to disclaim the certificate.

(viii) The issue before the Court was a narrow one, namely whether on the evidence before the Court, the Appellate is entitled to payment in the terms of the contract agreement, having executed the contract, which the Appellant established.

(ix) The Appellant is entitled to succeed on the strength of its own case as established by it, which was on the preponderance of evidence.

Ground 3: Error in Law

The learned justices of Court of Appeal erred in law when they held that the Appellant was not entitled to an award of damages upon the interpretation outcome of the case.

Particulars of error

(i) The Appellant established that there was a breach of contract, even as the learned trial Judge had found that part of the first stage payment was still being owed the Appellant, that is, the sum of N6 million

(ii) The Appellant had also established that there was no mobilisation fee paid, and that it engaged bank facility to execute the project, with the attendant interests, occasioned by the default in payment by the Respondents.

(iii) The funds of the Appellant had been tied down since 2001 as a result of the default of the Respondent.

(iv) The Appellant is clearly entitled to damages and interests.

(v) Notwithstanding that costs follow event, the costs awarded in favour of the Respondents who refused to appear in Court at all and/or failed to file any process in Court, were unreasonable and amounted to rewarding intransigence.

Instructively, an appeal is a challenge against the decision of the trial Court or the Court below, as the case may be. Essentially, an appeal challenges the correctness of the decision being appealed against on three fundamental grounds: (i) on the grounds of law; (ii) mixed law and facts; (iii) or on facts simpliciter.

Thus, to justify the intervention of the appellate Court on any of the grounds of the notice of appeal before it, the appellant has an up-hill task of establishing that the decision of the Court below he seeks to be reversed or set aside was wrongly arrived at, or the opinion expressed therein is not supported by the pleadings and evidence on the record. See GUARDIAN NEWSPAPERS LTD VS. REV. PASTOR C.I. AJEH (2011) LPELR-1343 (SC) @ 27 paragraphs A-C and UOR VS. LOKO (1988) 2 NWLR (pt. 77) 430.

Where a decision of a Court is challenged on the ground that the trial Court failed to properly consider the appellant’s case, the appellate Court in the exercise of its primary judicial responsibility, ought to take into account certain fundamental factors:

(i) The nature of the evidence before the trial Court or the Court below.

(ii) Whether the Court below accepted or rejected any evidence upon the correct perception.

(iii) Whether the Court below used the imaginary scale of justice to weigh the evidence on either side of the divide, and

(iv) Whether the Court below appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof.

This trite fundamental doctrine has been reiterated in a plethora of formidable authorities. See EGONU VS. EGONU (1978) 11-12 SC 111, AGBONIFO VS. AIWEREOBA (1988) 14 NWLR (pt.70) 325, KIM VS. EMEFO (2001) 4 NWLR (pt. 102) 147, SALAWU VS. MAKINDE (2002) LPELR-12318. Jurisprudentially, a ground of (for) appeal denotes a trial Court’s (or of Court below) errors of procedural law that form a basis for asking (praying) an appellate Court to review a case. Equally termed, ground for review. See BLACK’S LAW DICTIONARY, edition, 2019 @ 848.

Invariably, the objective of issues for determination by the Court is primarily to enable the parties streamline the issues in the grounds of appeal, contained in the notice of appeal, thereby ensuring accuracy, brevity and clarity.

A critical albeit dispassionate consideration of ground I, copiously alluded to above, would confirm that it is vague, in the sense that it is actually not clear what the complaint is all about. As aptly argued by the Respondent, at first what the error complained about apparently relates to the interpretation of Clauses 4.5.2,5.3 and 12 of the Contract Agreement. However, it is rather obvious, the ground equally relates to evaluation of documentary evidence on record. Thus, the actual nature of the complaint in ground I is far from being unambiguous. The particulars are rather unhelpful in clearing the ambiguity inherent in ground 1.

Most especially, particulars (i) & (ii) are apparently argumentative, as they seem to complain about interpretation. Particulars (iii) to (x) are virtually argumentative, and narrative in nature, thereby complaining about evaluation of evidence on record.

What’s more, particular (x) is clearly irrelevant and extraneous to the decision of the Court below.

Ground 2 is equally vague, prolix and outrageously unwieldy. One is left in doubt as to whether ground 2 complains of burden of proof, when the evidence on record is unchallenged, or the evaluation of evidence by the Court below. Particulars (i), (ii), (v), (vi), (ix) are narrative and apparently dwell on evaluation of evidence. Particulars (vii) and (viii) are outrageously inconsistent with the ground in question. Particular (iii) is obviously unrelated 10 the ground. Likewise, particular (xiii) is bad for falsity, in the sense that the Court below has clearly decided on the question whether the Appellant was actually entitled to payment based on the contract. Particulars (ii) and (iii) apparently deal with the burden of proof, when evidence is actually unchallenged.

Lastly, but not the least, ground 3, which for all intent and purposes is apparently bad for falsity, as the Court below affirmed the award of damages by the trial Court. Damages were awarded on the N6 million proved in the course of the trial. The ground 3 in question does not appear to have evidently flowed from the vexed judgment of the Court below. The said ground 3 is to say the least, at large!

Most regrettably, issue 1 allegedly distilled from grounds 1 and 2 of the notice of appeal apparently dwells on interpretation. The said issue is extraneous to the grounds, as particulars of errors of interpretation have not been provided in the grounds. See ADAH VS. ADAH (2001) 5 NWLR (pt. 705) 1, ABAYOMI VS. AG ONDO STATE (2006) 8 NWLR (pt. 982) 211, MOMODU VS. MOMOH (1991) 2 SC1, MAGIT VS UNIVERSITY OF AGRICULTURE, MAKURDI (2005) 19 NWLR (pt. 959) 211.

Interestingly, the hallmark of the principles enunciated in the foregoing authorities is to the effect, that an issue for determination must be predicated upon or distilled from a competent ground of appeal. This is indeed so, whether or not the issue is raised by the Appellant or the Respondent. Thus, an issue for determination not distilled or derived from a competent ground of appeal, ought to be struck out along with the incompetent ground in question. The proposition of law is indeed trite, one cannot put something on nothing and expect it to stand. No, it would most assuredly crumble and fall just like the way the cookies crumble. See MACFOY VS. UAC (1961) AC per Lord Denning, MR.

The issue 2, distilled from ground 3 does not at all relate to the decision of the Court below, because the Court only affirmed the position of the trial Court that the Appellant was only entitled to N6 million at the interest rate of 10% per annum. There ought not to have been a complaint about damages that was not awarded.

Hence, against the backdrop of the foregoing postulations, the most inevitable conclusion that could be arrived at in the instant appeal, is to the effect that the Respondent’s preliminary objection is meritorious, thus ought to be granted by me.

CONSEQUENTIAL ORDERS

A preliminary objection as a veritable threshold, is pre-emptive in nature. It fundamentally aims at aborting (terminating) the appeal in limine (prematurely). An appellate Court is required to, first and foremost, determine the preliminary objection in the appeal. It does not matter whether such an objection is frivolous, it should not be disregarded. Thus, where the preliminary objection meritoriously succeeds, the Court has no option other than to grant same, and at that point strike out the appeal for being incompetent. See NWANWATA VS ESUMEI (1998) 8 NWLR (pt. 563) 650, TAMBCO LEATHER WORKS LTD VS. ABBEY (1998) 12 NWLR (pt. 579) 548, FIRST BANK OF NIGERIA PLC VS. TSA INDUSTRIES LTD (2010) 15 NWLR (pt. 1216) 247 SC. Indeed, the rationale of a preliminary objection is that where it succeeds, as in the instant appeal, there would be no need at all to proceed to determine the appeal on the merits; as doing so is tantamount to a futile, wasteful exercise. See NDIGWE VS. NWUDE (1999) 11 NWLR (pt. 626) 314, NEPA VS. ANGO (2001) 15 NWLR (pt. 737) 627.

Hence, having determined that the instant appeal is grossly incompetent, thereby upholding the Respondent’s preliminary objection, the appeal is accordingly hereby struck out by me.

There ought not to be any order in regards to costs.

SC.333/2008

Segun V. State (2021) LLJR-SC

Segun V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

On 16th May, 2018 the Court of Appeal, Ado-Ekiti Division (the lower Court) delivered judgment in the appeal of the Appellant in which the said lower Court affirmed the conviction of the Appellant, and death sentence imposed on him, for murder. The opinion of the lower Court prepared and delivered by AHMAD O. BELGORE, Presiding Justice, was unanimously concurred by FATIMA OMORO AKINBAMBI and PAUL OBI ELECHI, JJCA. This further appeal is against the said decision.

The uniqueness of the judgment appealed warrants my having to set it out, clearly, in its three active components. Firstly, at pages 204 – 207 of the Record, the Notice of Appeal against the decision of the trial Court containing 4 grounds of appeal, was set out verbatim thus:

It is against the decision of the High Court, that the appellant has appealed to this Court. Pursuant to the leave of this Court granted on the 16th day of October, 2017, on Amended Notice of Appeal contained four Grounds of Appeal was filed on the 26th day of October, 2017. The four grounds of appeal are –

GROUND 1 (ONE) ERROR IN LAW

The learned trial Judge erred in law when he relied on the evidence of Prosecution witnesses who are not eye witnesses to the commission of crime in convicting the Appellant of the offence of Murder.

PARTICULARS OF ERROR

The only eye witness was PW3 whose evidence was not corroborated by any other person.
The evidence of PW3 before the Court shows that PW3 is a tainted witness having alleged that she was almost killed by the Appellant who in any event did not assault, bear or done any harm to PW3.
There was no legally admissible evidence on which the Court could hinge the guilt of the accused person for which reason the Court did not consider the evidence before the Court but decided the guilt of the accused person hearsay evidence.

GROUND 2 (TWO)

The learned trial Judge erred in law when he convicted the Appellant of Murder despite the failure of the Prosecution in discharging the burden of proof beyond reasonable doubt as the evidence adduced is insufficient to ground or sustain the ingredient of a Murder charge.

PARTICULARS OF ERROR

It is evidence that the alleged crime for which the Appellant was convicted was not witnessed by any of the Prosecution witnesses, yet the Court convicted the Appellant on the evidence of PW3 without corroboration.
The Court held that failure of the Appellant’s witnesses to volunteer any statement to the Police discharges the Prosecution of Mandatory burden of proof beyond reasonable doubt in a criminal trial.
The evidence adduced by the Prosecution against the Appellant which the Court believed and based its decision no conclusion based on law.

GROUND 3 (THREE) ERROR IN LAW

The entire trial as it relates to the Appellant is a nullity, the trial having been conducted against the Appellant’s right to fair hearing.

PARTICULARS OF ERROR

The law is that the Court is bound to consider any defence offered by any accused person in a criminal trial, this the Court failed to do in this case.
The Court held that failure of the Appellant’s witnesses to volunteer any statement to the Police make their evidence not reliable and therefore liable to rejection in clear breach of law and judicial authorities that an accused person cannot be condemned unheard.

The second phase of the judgment of the lower Court has therein set out and reproduced the respective issues distilled from the 4 grounds of appeal at pages 207 – 208. That is –

ISSUE No. 1

Whether the Court was right in convicting the Appellant of Murder in the absence of any legally admissible evidence. This issue covers ground 1 (one) of the grounds of Appeal.

ISSUE No. 2

Whether the Prosecution discharged mandatory burden of proof imposed on it by law so as to justify the conviction of the Appellant for murder. This issue covers ground 2 (two) of the grounds of appeal.

ISSUE No. 3

Whether the trial and conviction of the Appellant is not a nullity, the Court having not considered the defence offered by the Appellant and evidence adduced by his witness. The issue cover ground 3 (three) of the grounds of appeal.

The Respondent distilled a sole issue for determination, viz –

Whether the Appellant was not properly convicted of the offence as charged by virtue of the evidence adduced and admitted at his trial before the lower Court? [ground 1]

Then comes the consideration and the brisk, albeit brief and foggy decision on the issues, as follows at pages 208 and 209. That is- Issue No. 1

The lower Court (sic – was) right in convicting the Appellant of murder, based on legally admissible evidence.

Issue No. 2

The prosecution discharged the mandatory burden of proof imposed on it by law and the conviction of the Appellant for murder is justified.

Issue No. 3

The learned trial Judge considered the evidence of the Appellant and his witness. He appraised same and came to right decision. I do not see any reason whatsoever to annul the trial and the convicting (sic) of the Appellant.

All the three issues formulated by the Appellant having been resolved against him, this appeal must fail and it is accordingly hereby dismissed. The decision of the lower Court in charge No. HOM/1C/2013 delivered on the 21st day of June, 2016 convicting and sentence the Appellant is hereby affirmed.

It is this brisk and brief judgment (in a style most unusual of a superior Court) that the complaints of the Appellant, in this further appeal, are directed. The Notice of Appeal has 4 grounds of appeal. In the Appellant’s Brief, Mr. Tunde Adeoye of the Appellant’s Counsel formulated three issues from grounds 1 – 3, abandoning ground 4 – the omnibus ground. I hereby adopt the 3 issues formulated by the Appellant’s Counsel. They read:

Whether the Court of Appeal was right in affirming the conviction of the Appellant for murder by the trial Court in the absence of any legally admissible evidence? This issue covers ground 1 (one) of the grounds of appeal.
Whether the Prosecution discharged (the) mandatory burden of proof imposed on it by law so as to justify the conviction of Appellant for murder? This issue covers ground 2 (two) of the grounds of appeal.
Whether the trial and conviction of the Appellant is not a nullity, the Court having not considered the defence offered by the Appellant and the evidence by his witness? This covers ground 3 (three) of the grounds of appeal.

Ground 3 of the grounds of appeal, from whence issue 3 was allegedly distilled, does not have particulars of “any defence offered by” the Appellant at the trial which “the trial Court failed to do (consider) and the learned Justices of the Court of Appeal held that the right of the Appellant was not breached by the trial (Court)”. The Appellant’s counsel does not appear learned enough in this type of “jedi-jedi” advocacy. In the Appellant’s Ground 3, in the Amended Notice of Appeal at the lower Court, Mr. Tunde Adeoye of the appellant’s counsel made the bald statement of complaint that “the entire trial as it relates to the Appellant is a nullity, the trial having been conducted against right to fair hearing”. The said Ground 3 was without particulars, albeit insufficient, that would have put the Respondent on the notice of this alleged infraction of the Appellant’s right to fair trial by the trial Court.

The notice of the case a party is going to meet for him to plan adequately how to answer or defend it is the very essence of audi alteram partem principle in fair hearing or natural justice. As the prosecution has no right to deny the defence audi alteram partem so also the latter the former. Denial of a party of his right to audi alteram partem is, no doubt, an infringement of the other’s right to fair trial or hearing guaranteed by Section 36 of the 1999 Constitution, as amended. The Courts of law and justice frown at a party in litigation laying ambush on his adversary. It is jurisprudentially unwholesome.

On this note, I am of the firm view that the ground of appeal, from which issue 3 has been formulated for the determination of this appeal is, like the said issue 3, incompetent. Both the ground 3 and issue 3, shall be, and are hereby, struck out. No where in the judgments of the trial Court and the lower Court did this bogus issue of alibi and the defence evidence on it arise. In any case, the credible evidence of PW.1, PW.2, PW.3, PW.4 and PW.5 – eye witnesses, believed by the trial Court would not let any alibi being flaunted by the Appellant fly. The issue is a non-starter.

The remaining two issues come down to whether the guilt of the Appellant was established beyond reasonable doubt at the trial Court to warrant the lower Court affirming it. Clearly, the further appeal is against the concurrent findings of fact. The Appellant, in the circumstance, is enjoined to show that the concurrent decisions were perverse or unreasonable. The Apex Court will not, as a principle, lightly interfere with concurrent findings of fact: OMETA v. NUMA (1934) 11 NLR 18. In otherwords, in the absence of special reasons the Apex Court will not review concurrent findings of fact or the facts at the trial the third time:-ASSACHERE v. DADIASE (1945) 11 WACA 1. It is on this principle that a derivative principle evolved to the effect: that concurrent findings for facts of the Courts below prima facie entitle the respondent to an order dismissing the appeal against findings of fact: ADANSI v. BRENASE P. C. No. 23 of 1953; (1956) 1 W. A. L. R 6 (Ghana). Putting it rather bluntly: except where there are special circumstances, the Apex Court will not permit a question of fact to be re-opened where there had been concurrent findings of fact on it: DAWODU v. DANMOLE (1962) 1 ALL NLR 702.

This, instant appeal, however, is an appeal challenging the conviction of the Appellant for murder that the lower Court had affirmed. Section 233(2)(d) of the Constitution, as amended, offers constitutional exception to this general principle when it confers on the appellant the right to appeal as of right to this Court, the Apex Court, to challenge his conviction for capital offence and/or death sentence. I shall, therefore, do evaluation of some of the salient or material facts.

The summary of the five material witnesses called by the respondent is that the Appellant, as the 1st Accused, was fixed physically to both the scene, the locus criminis, and the alleged murder.

The PW.1, a Police Inspector, who was at the scene at the material time, testified, undiscredited, that the Appellant and the co-accused were among the lynch mob that invaded the Police Station to lynch the PW.4 and the two Fulani men.

The three had been rescued and put into the Police cell in a protective custody. The mob led by the Appellant and the co-accused, over powering the police personnel, broke into the cell. The PW.2, another Police officer, was categorical and undiscredited. He testified that the Appellant was at the scene of the mob attack at all material times.

The PW.5, the investigating Police officer, recorded the Appellant’s extra-judicial statement, Exhibit 3.02. It was a confessional statement admitted in evidence inspite of objection. The Ruling dismissing the objection, not appealed, remains unchallenged, extant, subsisting and binding on the Appellant, just as the confession Exhibit 3.02.

The PW.3, the mother of PW.4, rushed to the police station on hearing that the PW.4 was being attacked by the mob at the Police station. She saw the Appellant lead the lynch mob.

The PW.3 was categorical that the Appellant,

The 1st Accused hit the man with the white and black T-Shirt with the axe … The man with the White and Black T-Shirt was beaten to death by the 1st Accused and others.

She was not discredited under cross-examination nor by any other piece of evidence. The trial Court believed her, and the lower Court affirmed the finding of fact. The concurrent findings are not perverse or unreasonable. They are premised on credible legal evidence.

The PW.4 was conveying the two Fulani men (including the one wearing “white and black T. Shirt). The three were waylaid and thoroughly beaten. They were rescued and taken to the police station. He saw the 2nd Accused lead the lynch mob into the police station. The mob later brought out the two Fulani men from the cell. He saw the 2nd Accused personally smash the head of one of two Fulani men in the most, horribly, gory manner. The man died. The Appellant and the said 2nd Accused remained active in the criminal partnership throughout. The Appellant, in this further appeal, does not contest the fact that the two Fulani men were brutally killed. The fact of their death through some unlawful or illegal mob action is not in dispute.

The cumulative of the totality of the evidence of the PW.1, PW.2, PW.3, PW.4 and PW.5, together with the Appellant’s confessional statement, Exhibit 3.02, constitute the corpus of the legal evidence believed by the trial Court in the conviction of the Appellant for the gruesome murder of the two Fulani men alleged. The Appellant admitted to the PW.5 that he was at the scene of crime – that admission actively should discredit any unfounded alibi. The totality of the evidence established that the Appellant had the opportunity of committing the alleged crime, and he did actually commit it: UBANI v. THE STATE (2004) FWLR (Pt.191) 1533 at 1546.

I agree with the learned Attorney-General of Ekiti State, Mr. Fapohunda, that the proof of the guilt of an accused person can be sustained on the following evidence, jointly and/or severally, that is –

i. the confession of the accused;

ii. circumstantial evidence; and/or

iii. evidence of eye witnesses of the crime;

LORI v. THE STATE (1980) 8 – 11 SC 81 MAIGARI v. THE STATE (2010) FWLR (Pt. 546) 505.

I find neither perversity nor unreasonableness in the concurrent findings of fact this appeal is directed against. The Appellant has also not been able to show any miscarriage of justice occasioned by the concurrent findings of fact. His conviction for Murder affirmed by the lower Court in the unusually very foggy brisk, brief and scanty judgment is hereby further affirmed.

The appeal, lacking in substance, is hereby dismissed in its entirety.

Appeal dismissed.

SC.1138C/2018

Sansani V. State (2022) LLJR-SC

Sansani V. State (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, Kaduna Division or lower Court or Court below, Coram: Adewale O. Abiru, Oladotun A. Adefope-Okojie and Amina Audi Wambai JJCA on the 26th day of February, 2016 dismissing the Appellant’s appeal and affirming the conviction and sentence of the Appellant and his co-accused person per G.I. Kurada J.

FACTS BRIEFLY STATED

The appellant as the 1st accused was arraigned alongside two other accused persons before the trial Court on the 4th day of November, 2008, charged with criminal conspiracy and culpable homicide punishable with Sections 97 and 221 of the Penal Code Law respectively, to which he pleaded not guilty.

The Respondent in its efforts to prove its case against the Appellant and the other accused persons, called five (5) witnesses who testified as PW1 to PW5, and it tendered in evidence several documents which were admitted in evidence, amongst which are the extra-judicial confessional statements of the Appellant which were admitted and marked as Exhibits 3, 3A and 5. It is worthy to note, that the confessional statements of the Appellant Exhibit 3, 3A and 5 were admitted in evidence through PW4 and PW5 without objection from the Appellant or his counsel.

The Appellant testified as DW1 in his defence and called no other witness. After the close of the respective parties’ cases, their counsel addressed the Court, and in a considered judgment, the learned trial Court found and held, that the Respondent had proved beyond reasonable doubt that the Appellant was guilty of the said offences of criminal conspiracy and culpable homicide not punishable with death. It therefore convicted the Appellant of the said offences of criminal conspiracy and culpable homicide not punishable with death and sentenced him to one (1) year imprisonment on Count 1 dealing with criminal conspiracy and five (5) years for the offences of culpable homicide not punishable with death, both sentences to run concurrently.

The Appellant being dissatisfied with the judgment of the trial Court, appealed against the same to the Court below via his Notice of Appeal dated and filed on the 17th day of May, 2011, containing ten (10) grounds of appeal.

In accordance with the rules and practices of the Court below, the parties filed and exchanged their respective Briefs of Argument which they duly adopted at the hearing of the appeal on 26th January 2016.

The Court below dismissed the appeal and further dissatisfied Appellant has come before the Supreme Court upon a Notice of Appeal containing five (5) grounds.

On the 3/2/2022 date of hearing, learned counsel for the Appellant Paulyn O. Abhulimen Esq. adopted the further amended Appellant’s brief of argument filed on 16/6/2021 and deemed filed on 2/12/2021. In the brief, learned counsel raised two issues for determination, which are as follows:-

i. Whether there were sufficient, cogent and credible evidence of conspiracy and culpable homicide not punishable with death under Section 222(7) of the Penal Code law of Kaduna State which warranted a substitution of conviction for conspiracy and culpable homicide not punishable with death instead of an outright acquittal and discharge of the accused persons?’ (Grounds 1, 2, and 5)

ii. Whether the Court below was right when it affirmed the decision of the trial Court that the prosecution proved the offences preferred against the Appellant beyond reasonable doubt as required by law. (Grounds 3 & 4).

Learned counsel for the Respondent, Biola Oyebanji Esq adopted the amended Respondent’s brief of argument, filed on 25/11/2021 and deemed filed on 3/2/2022. In the brief was formulated a single issue, thus:

Whether or not from the totality of the facts and law, the lower Court was justified to have found the appellant culpable and thereby convicting him of a lesser offence than the one he was actually charged with (Distilled from all grounds of the Notice of Appeal)

The sole issue of the Respondent seems to me to cover the field and I shall make use of it in the determination of the appeal.

SOLE ISSUE

Whether or not from the totality of the facts and law, the lower Court was justified to have found the appellant culpable and thereby convicted him of a lesser offence than the one he was actually charged with.

Advancing arguments for the Appellant, learned counsel stated that the two Courts below failed to adequately consider whether the standard of proof for culpable homicide not punishable with death under Section 222 (7) of the Penal Code Law of Kaduna State was attained before convicting the Appellant. That there was no intention to kill the deceased and the conviction based on speculation, should fail. He cited Archibong v ITA (2004) 2 NWLR (pt.858) 590 at 597 etc.

He submitted further that from the available facts of this case, the scuffle leading to the death of the deceased was instigated by the deceased and the force applied by the Appellant on the deceased was not disproportionate to what the Appellant and his co-accused claimed the deceased did to them. That the defence of self defence or provocation availed the Appellant. He cited Uwaekweghinya v The State (2005) 9 NWLR (pt.930) 227 at 285.

For the Appellant, it was contended that the learned trial Judge raised a point suo motu that the evidence of the prosecution only revealed a case of a rash act by the 1st and 2nd accused and he did not give the Appellant the opportunity to be heard on that issue. The implication is that there was a lack of fair hearing. He cited Dickson Moses v The State (2006) All FWLR (pt.322) 143 at 1477.

It was submitted for the Appellant that before he could be convicted of a lesser offence as was the case in this instance, the Appellant ought to have been called to address the Court in that regard. She cited Okey Uzoho & 4 Ors v National Council on Privatisation & Anor (2007) All FWLR (pt.394) 370 at 387.

That the Court below failed to evaluate the facts and evidence as challenged by the Appellant and so fell into the same error as the trial Court. It was cited Action Congress of Nigeria v Lamido (2012) 8 NWLR (pt. 1303) 560; Dawodu & Ors v Ologundudu & 5 Ors (1986) 4 NWLR (pt.33)104 at 115-116.

Learned counsel for the Respondent submitted that the trial Court having found the Appellant guilty of the lesser offence of culpable homicide not punishable with death, went on to consider if the ingredients of the offence of conspiracy had been proved and it so found that by the confessional statement of the Appellant and his evidence the Respondent had proved the count of criminal conspiracy.

That the Appellant had not challenged the findings of the trial Court at the Court below and so those findings stood.

That the defence of self defence or provocation did not enure in favour of the Appellant and that the Respondent proved the offences charged beyond reasonable doubt.

RESOLUTION:

As a starter, I need to restate the often quoted principle that in all criminal trials, the onus of proving the guilt of any accused person over the commission of a crime lies on the prosecution and that duty gets to the prosecution establishing its case beyond reasonable doubt which is not akin to proof beyond all shadow of doubt. This requirement is achieved by ensuring that all necessary and vital essential elements of the charge are proved by evidence. See Okoro JSC in The State v James Gwangwan (2015) 13 NWLR (pt.1477) 600 at 621; Yongo v. Commissioner of Police (192) LPELR-3528 (SC), (1992) 4 SCNJ 113; (1992) 8 NWLR (Pt.257) 36; Ogundiyan v. State (1991) LPELR-2333 (SC); (1991) 3 NWLR (Pt.181) 519; Alonge v. IGP (1959) 4 FSC 203; (1959) SCNLR 516; Babuga v State (1996) LPELR-701 (SC); (1996) 7 NWLR (Pt.460) 279.

See also the case of MOHAMMED IBRAHIM vs THE STATE (2015) 11 NWLR (Pt.1469) 164 at 192.

The Appellant in the instant appeal was arraigned before the trial Court on charges of criminal conspiracy and culpable homicide punishable with death, contrary to Sections 97 and 221 of the Penal Code Law. The trial Court after taking evidence from the prosecution’s witnesses and the Appellant who testified in his own defence and the other accused persons, found the Appellant guilty of criminal conspiracy and the lesser offence of culpable homicide not punishable with death, pursuant to the powers granted to the Court under Section 218(2) of the Criminal Procedure Code Law, having held that the prosecution proved beyond reasonable doubt that the Appellant committed the said offences. The trial Court in its judgment held pertaining to culpable homicide punishable with death, with which the Appellant was charged in count 2 thus:

“The Accused simply acted rashly. I hold that the evidence of the prosecution has only revealed a case of a rash act by the 1st and 2nd accused. And by Section 218(2) of the Criminal Procedure Code;

(2) Where a person is charged with the offence and facts are proved which reduced it to a lesser offence, he may be convicted of the lesser offence although he is not charged with it ”

I accordingly find the 1st and 2nd Accused persons guilty of causing the death of Mallam Makama Adamu by a rash act and I hereby convict each of them for culpable homicide not punishable with death under Section 224 of the Penal Code.”

The trial Court stated further as follows:

“By Exhibit 3, 3A and 4 and 4A, the 1st and 2nd Accused decided to go to the deceased’s house to ask him why he burnt their farm. They went to the house. They asked the deceased and because the deceased said he was not going to answer them, the two of them jointly beat him. That they left their house together with a common purpose of going to ask the deceased cannot be said to be an agreement to go and beat the deceased. However, by jointly beating the deceased even when he tried to leave them and enter his house but they held and dragged him back and beat him, an agreement to beat the deceased can be and it is inferred therefrom by me. The 1st and 2nd accused’s at that point agreed to beat the deceased and their act was illegal. I hold that the prosecution has proved conspiracy or agreement by the 1st and 2nd Accused to beat the deceased and which act resulted in the death of the deceased. I find the 1st and 2nd Accused guilty of Count one of the charge and I accordingly convict each of them of criminal conspiracy to commit culpable homicide not punishable with death under Section 97 of the Penal Code.”

The guides as provided in a large number of decided cases that in all criminal trials, the guilt of an accused person for the commission of an offence can be established by any one or more of the following methods or ways:-

By eye witness evidence.
By a free and voluntary confessional statement of the accused person; and
By circumstantial evidence.

Reference is made to the following cases:

SUNDAY UDOR vs. STATE (2014) 12 NWLR (Pt.1422) 548 at 561 para B
AKEEM AGBOOLA vs THE STATE (2013) 11 NWLR (Pti366) 619 at 648 paras A-C
EMEKA vs STATE (2002) 14 NWLR (Pt.734) 666 at 683 pars G-H.

By virtue of the provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and that of Section 135 of the Evidence Act, the onus of proving the commission of the offences alleged against the Appellant, lies on the prosecution in this case represented by the Respondent, more so, the Appellant having pleaded not guilty to the two counts against him. It therefore clearly lies at the door of the Respondent to prove all the ingredients of the offences with which the Appellant was charged in respect to the counts of criminal conspiracy and culpable homicide punishable with death.

In the quest to prove the offences charged, the Respondent relied on the eye witness evidence of PW1, John Aruwa whose evidence and that of DW3 Amuenza Likita Micheal whose evidence in addition to the confessional statements of the Appellant which were admitted in evidence without objection and marked as Exhibits 3 and 3A.

As stated earlier, the extra-judicial confessional statements of the Appellant were admitted in evidence without objection and since the said statements are confessional in nature, they are relevant and having been voluntarily made, they are admissible and having been so admitted, the Court was entitled to accord them full weight and consideration in the determination of whether the Appellant is guilty of the offences he was charged with. The trial Court was therefore perfectly in order when it found the Appellant guilty of the lesser offence of culpable homicide not punishable with death pursuant to the provisions of Section 218(2) of the Criminal Procedure Code having found that there was no intention to kill the deceased, but that the Appellant acted rashly and his action led to the death of the deceased.

The trial Court having found the Appellant guilty of the lesser offence of culpable homicide not punishable with death, went on to consider if the ingredients for the offence of criminal conspiracy had been proved and it soundly found, that by the confessional statements of the Appellant and his evidence in Court in his defence, the Respondent had proven the count of criminal conspiracy.

The Court below in its judgment noted that the trial Court in its judgment dealt first with the substantive offence of which the Appellant was convicted which is culpable homicide not punishable with death, before going back to see if the offence of criminal conspiracy, was proved beyond reasonable doubt.

The Court below in making its decision put down the ingredients of the offence of culpable homicide not punishable with death as follows:-

i. That the deceased died;

ii. That the death of the deceased resulted from the voluntary acts of the defendant;

iii. That the act of the defendant resulting in the death of the deceased was unlawful, rash or negligent; and

iv. That in the circumstances of the case, the act of the defendant was not such to amount to culpable homicide punishable with death.

The lower Court stated that though the beating was an unlawful and rash act but could not amount to culpable homicide punishable with death. The Court below held that the Appellant did not challenge these findings of fact and therefore the law presumes him as having accepted those findings, and are thus bound by them. The Appellant still did not challenge the same firm holding in this appeal. As such by the failure of non-challenge to those findings of the Court below, and by several decisions of this Court, the Appellant is bound by those findings. I refer to the case of ALHAJI TSOHO AMALE VS SOKOTO LOCAL GOVT. & ORS (2012) 5 NWLR (Pt.1291) 181 at 197-198.

The submissions of the Appellant on rash action hold no water in that, inferable from all the submissions is that there was no preconceived position taken by the Appellant to kill, but however death still occurred by the beating of the deceased. This act of inflicting blows on the deceased by the two accused was found by the concurrent judgments to be rash acts. The challenge by the appellant that the decision was speculative was informed by the fact that the hospital was negligent by not administering proper medical care. This contention is more speculative than what the Appellant alludes to the Court in respect to the fact that no head scanning was undertaken to determine the justification of the finding by the Courts that the death was due to head injury.

For a fact, both at trial and appeal to the lower Court, the Appellant did not destroy the above finding nor did he, as he had the right to, call another contradictory testimony of another doctor to establish that the above finding was unproved, unjustified and medically impossible. All the suppositions of the deceased having a speculative high blood pressure, hemorrhagic disease were not established by the Appellant. In this instance, the facts before the Court being well established as to the cause of death resulting from running blows on the head of the deceased. That made the production of the medical report within the sphere of abundance of caution but not necessary.

The conclusion reached that the cause of death was as a result of bleeding from the orifice was not dislodged and remained sacrosanct. The onus shifted back to the Appellant to produce alternative medical evidence to contradict the documented one, in default of which the concurrent findings had not been contradicted to establish any doubt from which the Appellant could benefit. Medical report is not a sine qua non to establish the guilt of the Appellant when there was other evidence. Suffice to state that non-production of medical report or the absence of the medical personnel is not mandatory, in this appeal, when the cause of death is already known. It is not the law that a hard object must be proved to have been used to inflict the grievous bodily harm as contended by the appellant.

The Courts have severally held that, in order to prove a charge of culpable homicide not punishable with death or manslaughter, there is no need to prove that there was an intention to cause death or to kill the deceased person, for indeed, it is the very absence of the intention to kill or cause death, that reduced the offence from culpable homicide punishable with death to manslaughter.

Reference was made to the case of STATE vs BOKA (1982) 1 NCR 85 at page 93 where Karibi Whyte, JCA (as he then was) held thus:

“It would seem to me on the concepts of “rash” or “negligent” act used in Section 222(7) that the offence is committed where there is no intention to cause death and no knowledge that the act done would, in all probability, cause death. The act complained of must be done without any criminal intent, the relevant considerations being the “rashness” or “negligence” of the act, These, or one of them alone, being the essential ingredients of liability, it would seem sufficient if the act complained of is the direct cause of death.”

I am persuaded to rely on the case of EMMANUEL AYO vs. THE STATE (2015) 16 NWLR (Pt.1486) 531 at 546-547 the Court of Appeal per Abiriyi, JCA held thus:-

“The death must be caused by the unlawful act of the accused person. It must be proved not merely that act of the accused person could have caused the death of the deceased but that it did. See Apugo v. State (2006) 15 NWLR (pt.1002) 227, and R v. Oledinma (1940) 2 WACA 202.”

Sanni & Ors V. Oruku (2022) LLJR-SC

Sanni & Ors V. Oruku (2022)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The Respondents were the Plaintiffs, at the trial Court. At their suit, inter alia, for declaration of title; the trial Court (per S. A. Adebajo, J.) on 21st July, 2001 affirmed the title of the Respondents in and over the disputed land. The Appellants were the defendants at the said trial High Court of Lagos State holden at Ikeja. Notwithstanding the trial Court adjudging the Appellants as trespassers on the disputed land and its order of perpetual injunction restraining them jointly and/or severally from committing further acts of trespass on the land the subject matter of this appeal, the Appellants, as defendants, remain on the land defiantly, albeit contemptuously.

In January, 2002 the learned trial Judge, S. A. Adebajo, J, finding that the defendants/Appellants were adjudged trespassers refused to grant an order staying the execution of his judgment in their favour. The application for stay of execution pending appeal was then dismissed. The purported appeal, on which the application for stay of execution pending the determination of the appeal, was premised on the Notice of Appeal filed on 10th August, 2001 containing only one ground; the omnibus ground complaining that “the judgment delivered on 27th day of July, 2001 is against the weight of evidence” as the only or sole ground of appeal. The Notice was settled by “TAIWO AJALA & Co”.

After Adebajo, J dismissed the application for stay of execution pending the determination of appeal; the lower Court on 28th October, 2002, upon further application of the Appellants, granted them a stay of execution for one year only to enable them expeditiously prosecute their appeal. The order for conditional stay had since November, 2003 lapsed. The Appellants later again, approached the Court of Appeal (the lower Court) to extend the said order. The lower Court, satisfied that the Appellants had “not shown seriousness to prosecute this appeal” and that (‘it is not in the interest of justice to extend the earlier grant” of conditional stay of execution, dismissed the application on 1st December, 2003. The Appellants continued to stay put on the land in dispute in defiance of the order of perpetual injunction slammed on them by the trial Court.

The Appellants would not pursue the diligent prosecution of their appeal. They had not, in 2008, transmitted Records for the hearing of the appeal. On 25th February, 2008 the lower Court, invoking Order 8 Rule 18 of the Court of Appeal Rules, 2007, dismissed the appeal for indiligent prosecution: the Record of Appeal for the hearing of appeal (notice of which was filed on 10th August, 2001) having not been transmitted 7 years after. The order dismissing the appeal remains extant; subsisting and binding on the parties just like the judgment and orders of the trial Court.

The Appellants, subsequently, resorted to filing multiple applications on 5th February, 2009, 14th April, 2009, 7th July, 2009, 30th September, 2009 etc; which motions were freely withdrawn, and accordingly they were struck out by the lower Court on 19th January, 2010. The two motions filed on 14th April, 2009 seeking leave to amend the Notice of Appeal and extension of time within which to compile and transmit Records were in the first place filed in pretension that the appeal had not been dismissed for indiligent prosecution.

Several motions were since filed by the Appellants at the lower Court. It is in respect of the motion filed on 26th September, 2012 that the lower Court’s ruling on it has become the subject of this appeal. The Appellants in the said motion sought the following reliefs:

“An order of this Honourable Court for extension of time within which the Applicants/Appellants may seek the leave of the Court to appeal against the decision delivered by Honourable Justice S. A. Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit No. ID/2595/92 between the above parties.
An order of this Honourable Court granting the Applicants/Appellants the leave of the Court to appeal against the decision delivered by Honourable Justice S. A. Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit No. ID/2595/92 between the above parties.
An order of this Honourable Court for extension of time within which the Applicants/Appellants may appeal against the decision delivered by Honourable Justice S. A. Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit No. ID/2595/92 between the above parties.
An order granting leave to this Honourable Court to the Applicants/Appellants to raise a fresh ground of appeal in the Notice of Appeal.

The lower Court delivered its decision on the said motion, filed on 26th September, 2012. C. E. Iyizoba, JCA expressing the unanimous opinion of the Court stated inter alia:

The reasons given by the applicants for the delay are simply too frivolous to be given any serious consideration. They compiled record of proceedings that were not legible and waited for the Court to say so before they went back to compile legible records; another motion for departure filed on the 15th March, 2005 was thrown out for the same reason that some pages of the record were not clear. As submitted by learned counsel for the respondent in his written address, the same reasons were adduced and totally rejected when the said Notice of Appeal originally filed was dismissed by this Court. Adamu JCA, OFR observed as follows:-

“After hearing the parties, we are of the view that the appellants in the present appeal (which is 2002 appeal) have not been diligent in the prosecution of the Appeal. The appellant counsel have admitted that this Court in refusing his application to extend our order for stay of execution in their favour had since 2002 directed them to be diligent in the prosecution of their appeal which up till now they have not complied with; the other reason for their delay in the compilation of record namely that they could not obtain a legible copy of the newspaper exhibits they annexed to the said proposed record is shallow excuse because as it is they do not need to make it as part of the record. If they want to refer to it, they can do so as an exhibit, the original of which is normally forwarded to the Court when the record have been compiled either through the registry or by a departure from the rules …”

The applicants were in possession of the disputed land and it suited them to be whiling away time in the pretext of a pending appeal while they continued selling the property already adjudged not to belong to them. I agree with the Respondent that granting this application for extension of time within which to apply for leave to appeal after the applicants had frittered away the 13 years available to them to pursue their appeal would be greatly prejudicial to the respondent. l am of the firm view that the applicants failed to show good and substantial reasons for failure to appeal within time.

Although a proposed Notice of Appeal was exhibited which on the face of it may satisfy the second condition, having failed to satisfy the Court on the first condition, I hold that this application lacks merit. It is hereby dismissed with N20,000.00 costs against the Applicants and in favour of the Respondent.

The decision was delivered on 18th November, 2014. Against the decision the Appellants appealed as of right on four (4) grounds of appeal. Out of these 4 grounds of appeal only Ground 3 complaining that the Appellants were denied fair hearing appears to be valid and competent for the purpose of invoking the jurisdiction of this Court by dint of Section 233(2)(c) of the Constitution – enabling an appellant complaining that his right guaranteed under Chapter IV of the Constitution has been violated to appeal as of right.

Grounds 1, 2 & 4 in the purported Notice of Appeal filed on 24th November, 2014, raising questions of pure facts, require leave first sought and obtained under Section 233(3) of the Constitution to be competent. The said grounds filed as of right, without the mandatory leave, are incompetent and accordingly struck out. Issues 1 and 2 formulated from the incompetent grounds 1, 2 & 4 are therefore incompetent and are hereby struck out.

My Lords, I had earlier in this judgment pointed out that on 25th February, 2008 the lower Court, invoking Order 8 Rule 18 of its extant 2007 Rules, had dismissed the appeal of the Appellants (filed on 10th August, 2001). The appeal dismissed was appeal No. CA/L/37/2002, notice of which was filed to challenge the decision of the trial Court delivered on 27th July 2001 in the suit No. ID/2595/1992. Notwithstanding the several numbers appearing on the Appellants’ processes; that is CA/L/37/2002; CA/L/619/2020, CA/L/619M/2002 and CA/L/704/2018 the fact remains that this appeal is the continuation of the suit No. ID/2595/1992 in respect of which the High Court of Lagos State, sitting at Ikeja (coram: S. A. Adebajo, J.), delivered its final judgment on 27th July, 2001. In its judgment, particularly at pages 759 & 760 of the Record, the lower Court was not in any doubt that its decision delivered on 18th November, 2014 was in relation to the judgment of the trial Court delivered on 27th July 2001 (in the suit No. ID/2595/1992).

The effect of the lower Court’s order dismissing the appeal No. CA/L/37/2002 on 25th February, 2008 is that the life of that appeal had been extinguished and terminated and that the said appeal had been removed from the cause list of the lower Court: KRAUS THOMPSON ORGANISATION v. NIPPS (2004) 17 NWLR (pt. 901) 44 (SC) at 59. Unless the order of dismissal was set aside or quashed by a Court of competent jurisdiction, no Court has jurisdiction to revive or resuscitate it: BABAYAGI v. BIDA (1998) 2 NWLR (pt. 538) 367; INEC & ORS v. PRINCE CHIJIOKE B. NNAJI & ANOR (2004) 16 NWLR (pt. 900) 473 at 482; ASALU v. DAKAN (2006) ALL FWLR (pt. 325) 90, KRAUS THOMPSON ORGANISATION v. NIPPS (SUPRA).

In the instant case the lower Court having become functus officio, by its earlier order dismissing the appeal; it lacked jurisdiction to deal with the matter vide of the Appellant’s subsequent application filed on 26th September, 2012 – the ruling on which is the subject of the instant appeal:OLOWU v. ABOLORE (1993) 5 NWLR (pt.293) 255 (SC) at 270; FBN PLC v. TSA IND. LTD (2010) LPELR – 1283 (SC).

In effect, the appeal having, on 25th February, 2008, been dismissed, and the dismissal order subsisting having not been set aside, there was no longer any lis pendens on which any interlocutory application may be predicated upon: YONWUREN v. MODERN SINGS (NIG) LTD (1985) LPELR -3529 (SC). It may be argued, though puerile in the circumstance, that the Appellants, by their motion filed on 26th September, 2012, seeking inter alia extension of time within which to appeal against the decision of trial Court delivered on 27th July, 2001 in the suit No. ID/2595/1992, were seeking leave to lodge fresh appeal. An appeal within an appeal is bad enough particularly both appeals are against a single final decision. The latter may be an abuse of process. It becomes worse when the latter appeal hangs on the earlier incompetent appeal. Like a coat on a hanger, once the hanger collapses the coat falls with it. It was held in ADERIBIGBE v. ABIDOYE (2009) LPELR – 140(SC) that once the notice of appeal is incurably defective or incompetent, no additional grounds of appeal can hang on it. A defective or incompetent notice of appeal cannot be remedied or redeemed since it is dead on arrival, that is void ab initio. The application filed on 26th September, 2012 was brought in the appeal that had since been dismissed and notionally removed from the cause list of live appeals. The Appellants naturally should expect a new sprouting wine to burst the old discarded wine skin bottle. The Appellants could not legitimately bring this application in or under the appeal that had since been dismissed, the lower Court having become functus officio by the fact that the same lower Court had on 25th February, 2008, dismissed the earlier appeal against the same decision involving the same parties. The dismissal order, remaining extant, subsisting and binding on the parties herein had foreclosed the steps being taken in the said application. By that fact the application was, itself, clearly an abuse of the process of the Court. The lower Court seemed to acknowledge the fact that the Appellants’ earlier appeal had been dismissed and there was no longer any pending appeal. It alluded, at page 770 of the Record in its ruling, to the fact that “the appeal originally filed was dismissed by this Court”. Commenting on the despicably reprehensible conduct of the Appellant, the lower Court continued –

The applicants were in possession of the disputed land and it suited them to be whiling away time in the pretext of a pending appeal.

The motion filed on 28th September, 2012 was filed in the appeal that had since been dismissed for want of prosecution. (i.e. failure to transmit Record for the hearing of the appeal). The Appellants did not avail themselves of Order 8 Rule 20 of the Court of Appeal Rules, 2007 for the appeal to be restored. The Appellants motion filed on 28th September, 2012 was brought in nicodemusly, or in surreptitious manner, to revive the dead appeal. In the circumstance the dismissal order remains final. They were thus placing something upon nothing and expecting it to stand. It will not.

The net summary of all I have been saying is that from the incompetent application (of 28th September, 2012) no competent decision arose therefrom to warrant the complaint of the Appellants that they were denied fair hearing (which even on the merits it does not lie in their mouth to so complain as the Records clearly show that the lower Court duly and fairly considered the affidavits and written addresses of the parties, respectively filed and exchanged, in its ruling the subject of this bogus appeal). The findings of fact by the lower Court, at pages 851 – 855 of the Record, that the application was frivolous, mischievous and that for 13 years after the judgment of the trial Court, the adjudged trespassers had engaged themselves in one frivolous application or the other which they repeatedly withdrew while at the same time or contemporaneously they were continuing their illegal occupation of the disputed land, parts of which they were illegally selling in the pretext of a pending appeal were not challenged in any viable ground of appeal.

Even if this appeal were competent; the Appellants did not establish, in any satisfactory manner, that they were denied fair hearing by the lower Court in the procedure, the application was filed on 28th September, 2012 and the decision on it was delivered on 18th November, 2012. It is incumbent on every appellant to establish the error of the Court below he complained of in his appeal; the burden being an extension of the principle of law placing the burden on whoever asserts the existence of facts he alleges to establish same in order to be entitled to judgment on the said assertion: Sections 131 and 132 of the Evidence Act, 2011. Every judgment, prima facie being correct on the presumption of regularity the burden of showing the contrary is on the appellant: BHOJSON PLC v. DANIEL – KALIO (2006) 2 SC (pt. II) 91 citing with approval WILLIAMS v. JOHNSON (1937) 2 WACA 248; KISOEDU & ORS v. DOMPREH & ORS (1935) 2 WACA 264; FOLORUNSHO v. ADEYEMI 1 NMLR 128. The Appellants throughout the whole gamut of their brief of argument failed to show or establish in what way(s) the decision complained of (if any) violated their right to fair hearing.

In view of all I have been saying; this appeal is a mere exercise in gross and frolic, some abuse of the Court’s process and accordingly it is hereby dismissed. The down right shenaniganism of the Appellants and their counsel, Chief Taiwo Ajala which smacks of outlawry has got to stop. Accordingly, the Appellants, their agents, privies and predecessors-in-title, in respect of or in relation to the land in dispute, shall forthwith vacate the land. Their counsel, Chief Taiwo Ajala shall within 21 days from today depose, under his hand, on affidavit verifying the Appellants’ compliance with the order directing them to forthwith vacate the disputed land and the affidavit, filed at the trial Court in the suit No. ID/2595/1992, shall be served on the Respondents through their counsel.

The Respondents are entitled to the needless costs they had been made to throw away defending this mischievous and malevolent appeal. Accordingly, costs assessed at N3,000,000.00 shall be, and are hereby, awarded against the Appellants, jointly and severally, in favour of the Respondents.

The appeal, a clear and gross abuse of Court’s process is dismissed in its entirety.

SC.227/2015

Rufus V. State (2021) LLJR-SC

Rufus V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

ABDU ABOKI, J.S.C.

This appeal is against the decision of the Court of Appeal sitting at Ado Ekiti, referred to as the lower Court, delivered on the 31st day of March 2014.

The Appellant was charged at the High Court of Ekiti State alongside one other, on a three count charge of conspiracy, armed robbery and willful damage to property under the Robbery and Fire Arms Act Cap 398 Vol XXII Laws of the Federation of Nigeria 1990 as amended. The Appellant pleaded not guilty to the charge, which are hereunder reproduced as follows:

COUNT 1

That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti within the jurisdiction of this honourable Court did conspire with each another to commit armed robbery and thereby committed an offence contrary to and punishable under Section 5b of the Robbery and Firearms Special Provisions Act Cap 398 vol XXII Laws of the Federation of Nigeria 1990 as amended.

COUNT 2

That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti within the jurisdiction of this honourable Court while armed with cutlasses and other dangerous weapon did rob one pastor Ajayi Olayinka 11,000 naira [eleven thousand naira] and one Nokia handset and thereby committed an offence punishable under Section one Section 2a of Robbery and Firearms Special Provision Act, Cap 398 vol XXII, Laws of the Federation of Nigeria 1990 as amended.

COUNT 3

That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti within the jurisdiction of this honourable Court while armed with cutlasses and in the process of robbing did willfully damage one Mazda 626 millennium with registration number LG49TUN property of Otun local government and thereby committed an offence contrary to and punishable under Section 481 of the Criminal Laws of Ondo State 1978 as applicable to Ekiti state.

As highlighted earlier, each of the two accused persons pleaded not guilty to the count and the matter proceeded to trial. The Respondent called in 6 witnesses and tendered 12 exhibits namely Exhibits A, B, C, C1, D, D1, E, E1, F, F1, G, and G1 in pages 66-68 of the Record. While the Respondent called in its 5th witness, the office of the Attorney General of Ekiti State substituted the charge with no objection from the accused persons. The substituted charge reads as follows:

COUNT 1

That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti, Ekiti State of Nigeria did conspire together to commit felony to wit; armed robbery and thereby committed an offence contrary to Section 6[b] of the Robbery and Firearms [Special Provisions] Act Cap R11, Laws of the Federation of Nigeria 2004.

COUNT 2

That you Adebayo Rufus and Bamidele Rasheed on or about 29th day of September, 2008 at Otun-Ekiti, Ekiti State of Nigeria while armed with offensive weapons to wit: cutlass and knife robbed one Mrs. Ajayi Kofoworola of the sum of One Thousand Five Hundred Naira [N1,500] and thereby committed on offence contrary to Section 1[2] [a] of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria 2004.

COUNT 3

That you Adebayo Rufus and Bamidele Rasheed on or about 29th day of September 2008 at Otun-Ekiti, Ekiti State of Nigeria did willfully damage one Mazda 626 millennium car with Registration Number LG 49 TUN, official car of one Honourable Ajayi Olayinka and thereby committed an offence contrary to Section 451 of the Criminal Code volume II Cap 30 Laws of Ondo State 1978 as applicable to Ekiti State.

Immediately after substitution, the trial continued and PW6 gave his evidence. See pages 65 to 69 of the Record. The Appellant and the other accused person each testified solely in his defense and called no other witness.

At the end of trial, the trial Court convicted the accused persons as charged and they were sentenced to life imprisonment and 6 months imprisonment.

At Page 97 of the Record, the trial Court, per ADEYEYE, J. held as follows:

“I therefore find each of the accused persons guilty of conspiracy, attempted robbery and unlawful damage. Each accused is accordingly convicted… Each of the accused persons is sentenced to life imprisonment in respect of the charge of conspiracy and attempted robbery. Each of the accused persons is sentenced to six months imprisonment in respect of Count 3 of the charge, the sentences shall run concurrently.”

Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court of Appeal Ado-Ekiti Division. The Court below, in a unanimous decision, dismissed the appeal. At pages 210 to 212, the Court of Appeal held inter alia thus:

I have painstakingly perused the record of appeal and the evidence contained therein and more particularly the testimonies of PW2, PW3 and PW5 coupled with the submission of both learned counsels for the parties thereon. In this vein, I have no doubt that the findings made by the learned trial Judge in this regard were borne out of pieces of evidence contained in the record of appeal Indeed I am unable to detect any segment or vestige of doubt from the evidence on the printed record placed before us. Accordingly, in the absence of compelling, showing, indicating and incorrect evaluation/erroneous appraisal of facts and wrong conclusions, I am thus obliged to show utmost restraint and refuse to accede to any invitation or succumb to any temptation towards interfering with duly considered findings as amply demonstrated above made by the learned trial Judge in the instant case. After the giving of exhaustive considerations to the evidence of requisite witnesses placed before him…in the premise of all that, I have stated above and having resolved all issues adopted for the termination in this appeal against the appellant, I have no valid reason to upturn or jettison the conviction of and sentence imposed on the appellant by the earned trial Judge in this case. The appeal is devoid of any positivity, it is accordingly dismissed by me, and the judgment of the trial Court is affirmed.

The Appellant, still dissatisfied, filed an appeal to this Court via a Notice of Appeal filed on the 6th day of June 2014. The said Notice of Appeal contains seven grounds.

In accordance with the practice and accepted procedures of the Supreme Court, parties filed and exchanged briefs. Counsel to the Appellant Chief R.O BALOGUN filed his brief on the 23rd day of March 2016 while counsel to the Respondent, the Honourable Attorney General of Ekiti State OLAWALE FAPOHUNDA Esq. settled the Respondent’s brief on the 25th day of November 2019.

In the Appellant’s brief of argument, the following three issues were distilled for this Court’s determination. They are:

Whether the Court of Appeal was right by affirming the decision of the trial Court that withdrawal of a charge and filing a new one after hearing has commenced is akin to an amendment and will not warrant trial de novo; placing reliance on the provisions of Section 162 and 163 of the Criminal Procedure Law of Ekiti State and the case of Nigeria Air Force V. ExWing Commander James.
Whether the Court of Appeal was not wrong when their Lordships held that the defence of aibi, promptly raised by the Appellant and not investigated by the Prosecution will not avail the Appellant, when the evidence of PW1 and PW4 that purportedly fixed the Appellant to the scene of the crime was not credible, cogent and convincing.
Whether the Court of Appeal was right by upholding the conviction and sentence of the Appellant for the offences of conspiracy, attempted robbery and wilful damage to Mazda 626 Car, in spite of the frail and unconvincing evidence of identification of the Appellant and when the totality of evidence led is not capable of establishing the offences beyond reasonable doubt.

For the Respondent, three issues were also formulated for determination. They read as follows:

Whether the Court of Appeal was right in upholding the decision of the trial Court in convicting and sentencing the Appellant for the offence of conspiracy, attempted armed robbery and wilful and unlawful damage based on the substituted charge No. HAD/29C/2012, filed on 23/7/2012 without commencing the trial de novo?
Whether the defence of alibi raised by the Appellant can exculpate him in the instant case?
Whether the identity of the Appellant as a robber was established by the Respondent and thus proved the case beyond reasonable doubt against him?

The three issues raised by Counsel on both sides are the same in purport, though differently couched. The issues as formulated by the Appellant are adopted in the determination of this appeal. Issues two and three are taken together.

ISSUE ONE

Whether the Court of Appeal was right by affirming the decision of the trial Court that withdrawal of a charge and filing a new one after hearing has commenced is akin to an amendment and will not warrant trial de novo; placing reliance on the provisions of Section 162 and 163 of the Criminal Procedure Law of Ekiti State and the case of Nigeria Air Force V. Ex-Wing Commander James.

It is submitted for the Appellant that the Respondent having substituted the original charge upon which the Appellant was arraigned and the charge struck out, the charge ceases to exist. According to learned counsel for the Appellant, the plea of the Appellant, having been taken and hearing commenced, substitution of the charge cannot be validly done.

It is his view that all five witnesses called before the charge was substituted should be discountenanced by this Court and the matter ought to have commenced de novo on the new charge.

Learned counsel for the Appellant invited this Court’s attention to pages 59-61 of the Record, which clearly captured what transpired on the 3rd day of October, 2012, when the Respondent made an oral application to withdraw the original charge and substituted it with the new charge.

It is his opinion that the trial Court did not make nor grant any order for amendment of the original charge, since the Respondent never prayed for such an order in accordance with Section 163 of the Criminal Procedure Law Cap C17 Laws of Ekiti State. According to him, the Respondent only made an oral application for the substitution of the original charge, with a new one.

Learned counsel for the Appellant posited that the provisions of Section 163 of the Criminal Procedure Law Cap C17 Laws of Ekiti State relied upon by the trial Court are not relevant and ought not to have been applied. His view is that Section 163 cannot be read in isolation, but must be read in concert with Sections 162,164 and 165 of the Criminal Procedure Law, supra. He relied on the case of PRINCE v. STATE (2002) 12 S.C (PT 1) 144-145

It is the view of learned counsel for the Appellant that the cases of F.R.N v. ADEWUNMI and NIGERIAN AIR FORCE v EX-WING COMMANDER L.D JAMES (2002) 18 NWLR (Pt 798) 295-332 relied upon by the trial Court, and affirmed by the Court below, are not apposite and are distinguishable from the instant case.

He urged this Court to hold that the evidence and testimonies of PW1-PW5, that were called on the basis of the original charge ought to be struck out and discountenanced; and resolve this issue in favour of the Appellant.

In response to the above, it is the submission of learned counsel for the Respondent that Section 163 of the Criminal Procedure Law of Ekiti State which is im pari materia with Sections 154 and 155 of the Ekiti State Administration of Criminal Justice Law, 2014, empowers the Court to alter, amend, or add any charge in any criminal proceedings before it. He argued that the amendment may be in the form of addition, deletion, or even complete substitution and placed reliance on these cases:

UKET v. FRN (2008) ALL FWLR (PT 411) 923;

NIGERIA AIR FORCE v. JAMES (2003) FWLR (PT 143) 257

STATE v OLATUNJI (2003) FWLR (Pt 155).

Learned counsel for the Respondent posited that the Appellant was duly represented in Court when the original charge was substituted and he did not object to the substitution.

He posited that the trial of an accused person cannot be vitiated on grounds of irregularity, except it occasioned a miscarriage of justice, which was not the case, in the instant appeal. He commended this Court to the following cases:

AKPA V THE STATE (2008) ALL FWLR (PT 420) 644,

UDOSEN V THE STATE (2007) ALL FWLR (Pt 356) 669.

This Court is urged to discountenance the arguments proffered on behalf of the Appellant on this issue, and resolve same against him.

Perhaps it is apt to stress here that learned counsel on both sides are ad idem that the Respondent can amend, alter, or substitute a charge. What is in issue here is the effect of such alteration on the Appellant’s case.

It is settled that a Court has power, under Section 163 of the Criminal Procedure Act (which is im pari materia to Section 163 of the Criminal Procedure Law, applicable to Ekiti State) to alter or add to any charge before judgment is given and every such alteration or addition must be read and explained to the accused.

The procedure on alteration of a charge as prescribed by Section 164 of the Criminal Procedure Law of Ekiti State is set out under Subsections (1), (2) (3) and (4) thereof. The provisions of the Section are as follows:-

“(1) If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 163 the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.

(2) If the accused declares that he is not ready the Court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the accused in his defence or the prosecutor in his conduct of the case the Court may proceed with the trial as if the new or altered charge had been the original charge. (3) If the new or altered charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as the Court may consider necessary. (4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.”

Compliance by the Court strictly with the provisions of Section 164 of the Criminal Procedure Law, quoted above, is essential. Therefore, failure to request the accused to plead to the amended charge will result in the whole proceedings being declared null and void. See: AMAKO v. STATE (1995) LPELR 451 SC.

Relating the above quoted authorities to the case at hand, the contention of the Appellant herein is that the Respondent, having withdrawn the original charge upon which the Appellant was arraigned and the original charge struck out, the charge against the Appellant ceases to exist and the trial of the Appellant ought to be started de novo, based on the new charge, and the evidence of the five witnesses taken and evidence given prior to the substitution ought to be struck out alongside the original charge.

I must straight away state that this position taken by learned counsel for the Appellant, does not represent the law, as quoted above.

In the case of NIGERIAN AIR FORCE v. EX WING COMMANDER LD JAMES (SUPRA) this Court had this to say;

Therefore substitution will have the same meaning and effect with alteration and according to Section 164 of the said act, where a charge or count is altered, all that is required to be done is to read the new charge to the accused and record his/her plea there too. The proceedings are deemed to be continued and not disturbed as a result of the alteration.

In OGUDO v. THE STATE (2011) LPELR 860 SC, this Court gave the procedure to be taken when a charge is amended or substituted as follows:

The proper procedure to take when a charge is amended is for the Court to read and explain to the accused every allegation or addition to the charge and to call upon the accused to make a fresh plea and to say whether he was ready to be tried on the amended charge and/or to recall all witnesses who may have given evidence and to ask the prosecution and accused if they wish to examine or cross-examine them.

I have carefully read the proceedings of the trial Court on the 3rd day of October 2012. The plea of the Appellant was made after the substituted charge had been read and explained to him (Appellant) in English and Yoruba. It was not the case of the Appellant that he did not understand Yoruba or that the substituted charge was not read and explained to him in Yoruba and English. Above all, the Appellant was represented by a learned counsel who appeared for him at the material time. Counsel for the Appellant C.O. Omokhafe appeared on behalf of the Appellant and raised no objection to the substitution of the charge. The substituted charge was read to the Appellant who pleaded not guilty. The learned trial Judge gave direction for the matter to proceed. The Appellant did not make any application either by himself or his counsel to recall any of the prosecution’s witness. The appropriate action to be taken at the trial Court was for the matter to proceed which the learned trial Judge did.

It must be noted that the real purpose of the provisions of Sections 162, 163, 164, 165 and any other Sections of the Criminal Procedure Act/Law relating to taking of plea of an accused on a charge or amended/substituted charge is to enable the accused to understand the nature of the charge or amended or substituted charge preferred against him. That was the fundamental or essential requirement or thing. If there is no miscarriage of justice, there is a presumption that the trial of the Appellant was regular.

It should be noted, in the present connection, that while Sections 164 and 165 of the Criminal Procedure Law are designed to afford an accused person adequate safeguards in the event of an amendment under Sections 162 and 163, it is clearly never the intention of the Act/Law that these Sections should provide an accused with a gratuitous escape route to freedom in the face of overwhelming evidence.

In view of the foregoing, I find no merit in the Appellant’s submission on this issue and same resolved against him.

ISSUE TWO

Whether the Court of Appeal was not wrong when their Lordships held that the defence of alibi, promptly raised by the Appellant and not investigated by the Prosecution will not avail the Appellant, when the evidence of PW1 and PW4 that purportedly fixed the Appellant to the scene of the crime was not credible, cogent and convincing.

ISSUE THREE

Whether the Court of Appeal was right by upholding the conviction and sentence of the Appellant for the offences of conspiracy, attempted robbery and wilful damage to Mazda 626 Car, in spite of the frail and unconvincing evidence of identification of the Appellant and when the totality of evidence led is not capable of establishing the offences beyond reasonable doubt.

It is the argument of learned counsel for the Appellant that the Appellant promptly raised the defence of alibi upon his arrest, in his extra-judicial statement. He invited this Court’s attention to Exhibit A, at page 66 of the Record, and submitted that the Appellant’s evidence that he was at his house on the 29th of September 2008, the date of the incident, was not discredited under cross-examination.

Learned counsel for the Appellant opined that the decision of the two lower Courts, that there was overwhelming evidence which fixed the Appellant to the scene of the crime, and therefore there was no need to investigate the alibi, occasioned a miscarriage of justice.

He contended that the evidence of PW1 and PW4 did not sufficiently pin the Appellant to the scene of the offence. According to him, having regard to the time the incident occurred, coupled with the fact that there was no light, (the incident having purportedly occurred at about 1.00 a.m. – 2.00 a.m.), it is absolutely impossible for the witness to recognise the Appellant by mere flashing his torchlight outside.

Finally he submitted that in the absence of any credible evidence adduced to discredit the alibi, the Appellant would inadvertently be exonerated of the charge, and the lower Court erred in affirming the decision of the trial Court, that the Respondent had successfully established all the ingredients of the offence charged.

He relied on this Court’s decision of AYAN V THE STATE (2013) LPELR 20932 SC and urged this Court to resolve these issues in favour of the Appellant.

Arguing in opposition to the above, it is submitted for the Respondent that the learned trial Judge painstakingly evaluated the evidence of PW1 and PW4 which effectively pinned the Appellant to the scene of the crime.

Learned counsel for the Respondent stated that by the evidence of PW1 and PW4, the Appellant was clearly identified by his voice and visual identification during the commission of the crime, which according to him, were some of the established ways of linking a person with the commission of the crime. He relied on the case of EMENEGOR v. STATE (2010) ALL FWLR (PT 511) 884.

He continued by arguing that it is not in all matters that once the defense of alibi is raised, an accused person is completely exculpated from the crime. According to him, if the prosecution can adduce succinct evidence, pinning the accused to the scene of the crime, the defense of alibi will automatically fail. He called in aid, these cases:

ATTAH V THE STATE (2010) VOL 30 WRN P1

NWABUEZE AND ORS V THE STATE (1988) 7 SCNJ (PT11) PG248.

He submitted in conclusion that the Court below properly evaluated all the evidence adduced before coming to the conclusion that the trial Court rightly convicted the Appellant for the offences charged.

This Court is urged to so hold, and resolve these issues against the Appellant.

I have carefully looked at the evidence of PW1 at pages 35 to 37 of the record. Part of the said evidence reproduced reads as follows:

“I picked up my torchlight and flashed outside, I saw the first accused person, I then shouted obosco you are the one doing this to me, the first accused person then replied that I should forget about that and open the door for them”… when I entered the room, I saw the face of the second accused person through the window, I started shouting his name again that kokorowa this is not good oo. The accused person went to where I parked my car and damaged all the glasses and windscreen.”

PW4 also stated as follows:

I know the first accused person and obosco and the second accused person as kokorowa. I know them in the town and they are my customers and as such, I can identify them anywhere… they shouted open the door but my husband insisted he will not open the door. They broke the glass of the window and called the name of my husband super open the door”

Looking at the above pieces of evidence, to my understanding, PW1 and PW4 both have a clear understanding as to the identity of the accused persons. What more could be tagged as identity of someone other than his name? At pages 70 and 72 of the Record, the accused persons admitted under cross-examination that they are being called Obosco and Kokoro Ewa respectively. See:

UGWU V THE STATE (2020) LPELR-49375 SC,

IDIOK V THE STATE (2008) FWLR (PT 421) 797.

In rejecting the defence of alibi, the Court below observed as follows, at pages 201 to 202 of the Record:

“In a situation such as in this case, where an accused is fixed at the scene of crime, the fact that the police/prosecution did not investigate the claim of alibi is very irrelevant as such an investigation would be a complete waste of time, a worthless exercise, which can be likened to a wild goose chase. It follows therefore, that where an accused is fixed at the scene of crime, which evidence is believed by the learned trial Judge, no reasonable doubt is created for the benefit of the accused if the police failed and/or neglected to investigate a claim of an alleged alibi put up by the defence/accused person. On the issue of identification…it is clear that both PW1 and PW4 recognised and further identified the Appellant as one of the robbers that invaded their residence. I think it is worth restating, that when an accused person is fixed at the scene of the commission of the crime, the plea of alibi fails and fizzles out as a candle in the wind……..in the case at hand, where the Appellant was duly identified, recognized and fixed at the commission and the locus of the crime by PW1 and PW4, who knew him before the incident, there was no burden to verify the plea of alibi…”

I find this decision of the Court below to be infallible and have no reason to hold otherwise.

An appellant insinuating that he was not at the scene of the crime has the burden to also lead in credible evidence to discredit the prosecution’s case in proving his defense of alibi. The Appellant at page 70 of the record stated that he was at his house at the time of the commission of the offence. There is nothing in the record that supports the Appellant’s alibi or discredits the Prosecution’s firm evidence against him.

This Court in the case of IDIOK v THE STATE (supra) had this to say:

Once an accused person is fixed at the scene of the crime, his defense of alibi must fail.

The conclusion to which I have come is that I must resolve these two issues against the Appellant,

The concomitant effect of the above is that this appeal is wholly unmeritorious and worthy of dismissal. Same is accordingly dismissed by me.

The decision of the Court of Appeal, Ado Ekiti Division, delivered on the 31st of March 2014 is hereby affirmed.

SC.557/2014

Reg. Trustees Of Apostolic Church Of Christ V. Reg. Trustees Of Grace Church Of Christ (2021) LLJR-SC

Reg. Trustees Of Apostolic Church Of Christ V. Reg. Trustees Of Grace Church Of Christ (2021)

LAWGLOBAL HUB Lead Judgment Report

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

This appeal is against the judgment of the Court of Appeal, Lagos Judicial Division delivered on 4th February, 2011, setting aside the judgment of the High Court of Lagos State Coram M.O. Obadina, J delivered on 10th June, 2005.

The facts of the case are as follows: The appellant is a Christian religious organisation which was registered in 1963. It had several branches, which included the Mushin Branch, which eventually broke away from the main organisation and was registered in 1996 as The Registered Trustees of Grace Church of Christ, the respondent in this appeal. In 1976, while he was still a pastor in the employment of the Appellant Church, the promoter of the respondent, one Pastor Igbeare, purportedly purchased a parcel of land at 23/25 Fayemi Street, Ejigbo Town near Mushin from the Agbeke Family. The purchase receipt was in Pastor Igbeare’s custody. The respondent applied for Land Information in respect of the land which yielded the information that the land had been acquired by the Lagos State Government as far back as 1972, vide Official Gazette No. 60 of 7/12/72 Volume 59. Realising that as at 1976 when the Agbeke family sold the land, it had been divested of title thereto, the respondent applied in its own name to the Lagos State Government for ratification of the sale. The respondent was consequently issued a formal letter of allocation of State Land. Upon the payment of the necessary fees, the respondent was issued with a Certificate of Occupancy on 24/8/97 in respect thereof.

It was the respondent’s contention that each branch of the church generated its own funds and that the branches were co-ordinate with and not subordinate to the headquarters. It was also its contention that it had deposited materials at 23/25 Fayemi Street, Ejigbo, preparatory to the construction of a permanent site for its church, which got lost. It was also contended that rather than take steps to object to the issuance of Certificate of Occupancy in its favour, the appellant proceeded to issue a notice of Revival Service scheduled to take place on the disputed land.

Warning letters were written to the appellant to no avail, hence the institution of suit NO. ID/I/31/9 before the High Court of Lagos State, Ikeja Judicial Division vide Written Summons and Statement of Claim filed on 14/5/98.

By their Further Amended Statement of Claim filed on 15/10/2003, the respondent, as plaintiff, sought the following reliefs against the appellant, as defendant:

A declaration that the plaintiffs are the persons or body of persons entitled to the Right of Occupancy of all that piece or parcel of land situate, lying and being at No. 23/25 Fayemi Street, Ejigbo Town near Isolo in Mushin Area of Lagos State of Nigeria, which piece of land is more particularly shown and delineated “RED” on Survey Plan No. MAF/5318/84L and covered by Certificate of Occupancy No. 68 at page 68 in Volume 1997N.
An order of perpetual injunction restraining the defendants by themselves, their privies, servants, agents and/or assigns from trespassing and/or further trespassing on the said land, subject matter of this suit.

3(a) Specific damages of N413,820.00 (Four Hundred and Thirteen Thousand Eight Hundred and Twenty Naira) only being the cost of the plaintiff’s fence on the land demolished by the defendant and building materials carried away by the defendant.

(b) General Damages N1,000,000.00 (One Million Naira only).

The Appellant filed an Amended Statement of Defence and Counter Claim on 9/5/2002.

It was the appellant’s contention that all the branches of the Apostolic Church of Christ (Spiritual Movement), including its Mushin Branch were under the control and authority of the parent body. It was averred that Pastor Igbeare was trained by the Church and posted to the Mushin Branch where he served with one Pastor Johnson Oyedipe and their salaries were paid by the parent body. It was also averred that the land in dispute was purchased with funds belonging to the parent body and in its name.

It was averred that after the purchase of the property, the purchase receipt was kept in Pastor Igbeare’s custody, being the Vice President of the Church. That after it was discovered that the land was State land, efforts were made by the appellant to seek a release of the land from government acquisition. That Pastor Igbeare got wind of the application and surreptitiously pursued it on his own without the knowledge of the Headquarters and took advantage of the fact that the purchase receipt was in his possession to secure the release in favour of the respondent. It maintained that the property belonged to the Appellant’s church. It counter-claimed as follows:

The defendant adopts all the averments in the Statement of Defence from paragraphs 1-26.
The Defendant claims against the plaintiff for a declaration that the defendant is the only person legally entitled to the Certificate of Occupancy in respect of a piece or parcel of land situate, lying and being at 23/25, Fayemi Street, Ejigbo.
Declaration that the Certificate of Occupancy registered as No. 68 at page 68 in Volume 1997 issued to the plaintiff is null and void.
N500,000.00 being damages for trespass committed by the plaintiff on the said land at 23/25 Fayemi Street, Ejigbo, Lagos, which is in dispute.
Perpetual injunction restraining the Plaintiff, agents, servants and privies and/or assigns from committing further acts of trespass on the land in dispute.

The plaintiff/respondent filed a reply to the Amended Statement of Defence and Defence to counter-claim on 6/9/2002.

At the trial, both parties led evidence and tendered documents in support of their respective positions. In a considered judgment delivered on 10th June, 2005, the plaintiff’s claims were dismissed. The defendant’s counter claim was granted in its entirety. The Court field that the land in dispute belonged to the defendant and that the plaintiff had no right to apply for ratification in respect thereof. The letters of ratification, Exhibits P3 and P4 and the Certificate of Occupancy, Exhibit P2, were declared null and void and of no effect.

The plaintiff (now respondent) was aggrieved by the decision and filed an appeal at the Court below. In its judgment delivered on 4/2/2011, the appeal was allowed and the judgment of the trial Court was set aside. The Court held that the Agbeke family, having been divested of its title to the land by the Government acquisition, Exhibit P14, had nothing to convey to the present appellant. It held that the respondent had proved a better title to the land. The judgment of the trial Court was set aside and all the plaintiff’s reliefs were granted.

The appellant is dissatisfied with the judgment and has appealed to this Court vide its Notice of Appeal filed on 9/3/2011 and 2 additional grounds of appeal filed on 15/2/2012. Altogether it filed 7 grounds of appeal.

At the hearing of the appeal on 16/2/2021, A.M. MAKINDE, SAN adopted and relied on the Appellant’s Amended Brief of Argument filed on 6/11/2012 but deemed filed on 21/2/2018 along with a list of additional authorities filed on 15/2/2021, in urging the Court to allow the appeal. M.P. ANAUKYAA, ESQ. adopted and relied on the respondent’s brief filed on 29/10/2012 in urging the Court to dismiss the appeal.

The appellant distilled 7 issues for determination as follows:

Whether from the totality of the evidence available to the Court below from the record the Court below was in error to have set aside the judgment of the Learned Trial Judge?
Whether the Court below was in error when it held that Exhibit P3 ratifies the occupation of the Plaintiff/Appellant in respect of government land which was said to have been acquired privately while at the same time stated that the Agbeke Family had nothing to convey to the Respondent now Appellant?
Whether the evidence before the Court below from the record of appeal established that the respondent had possession or the possession it had was in the name of the appellant and whether the certificate of occupancy can confer title on the respondent in the absence of the subsequent acquisition under the Land Use Act by the Governor?
Whether the Court below was in error when it granted all the reliefs of the Plaintiff/Respondent particularly its claims for special and general damages which were never proved by credible evidence?
Whether the Court below was in error when it held that there was no evidence from the record to show any admission as alleged?
Whether the Court below set up a case different from the one presented by the parties themselves in their pleadings and evidence?
Whether the Court below misapprehended and misapplied the facts of this case by its reference to a non-existent cross-appeal purportedly filed by the appellant made at the Court below at page 423 of the record which is part of its leading judgment stated inter alia ‘A’ careful scrutiny of the evidence reveals that the plaintiff/appellant had established his case on the preponderance of evidence while the respondent fails as it is hinged on the success or failure of the main appeals as the issues are virtually the same?

The respondent also formulated 7 issues thus:

(1) Whether having regard to the evidence before it the Court below was not justified in setting aside the judgment of the trial Court.

(2) Whether the Court below was in error to have held that Exhibit P3 ratified the occupation of the respondent in respect of the Land in dispute being State land, which the Agbeke family had been divested of title at the time of ratification.

(3) Whether evidence of possession of the land in dispute preponderates in favour of the respondent which is the only body that has valid title documents from the Lagos State Government.

(4) Whether the respondent was not entitled to the reliefs granted in its favour at the lower Court having regard to the evidence on record before it.

(5) Whether from the records there was any admission that is material in law to justify the grant of any relief(s) to the appellant by the trial Court.

(6) Whether the Court below set up a case different from the one set up the parties in their pleadings and evidence.

(7) Whether the lower Court’s reference to a cross appeal in the judgment occasioned a miscarriage of justice to the appellant.

From the facts and circumstances of this case, I am of the view that formulating 7 issues from the 7 grounds of appeal amounts to proliferation of issues. The appellant’s issues 1, 2, 3 and 5 can be collapsed into a single issue, to wit:

Whether from the totality of the evidence before it, the lower Court was justified in setting aside the judgment of the trial Court.

Issues 4, 6 and 7 can then be taken serially as issues 2, 3, and 4.

ISSUE 1

Learned counsel for the appellant submitted that in civil cases, the burden of proof has two meanings.

(a) The burden of proof as a matter of law and pleadings.

(b) The burden of proof in relation to additional credible evidence or the evidential burden.

See: Odukwe vs Ogunbiyi (1998) 6 SC 72.

He submitted that while the burden of proof in the first sense is always stable, the burden in the second sense may shift from one side to the other depending on where the scale tilts. See Osawaru Vs Ezeruka (1978) 6—7 SC 135. He contended that the preponderance of evidence tilted in the appellant’s favour. He submitted that the respondent’s evidence collapsed under cross- examination in relation to the following:

The owner of the receipt used for the ratification of the subject matter before the issuance of Exhibit P2.
The fact that the respondent was not in existence when the appellant’s receipt was used and therefore it was legally incapable of owning the subject matter.
The fact that PW1, the promoter of the respondent was an employee of the appellant until 1995 and his admission that he purchased the land for the appellant. He referred to pages 19-20 of the record.

Learned counsel submitted that the learned trial Judge meticulously evaluated the evidence before him before reaching the conclusion that the appellant was entitled to its counter-claim. He contended that the Court below failed to advert its mind to the fact that what the Lagos State Government did was to ratify the existing purchase or holding from the Agbeke family.

Learned counsel submitted, referring to the pleadings of the parties, that contrary to the finding of the lower Court, both parties pleaded acquisition from the Agbeke family. He referred to the evidence of PW1 and DW1 who both pleaded that the Agbeke family was the original owner of the land prior to its acquisition. He submitted that the evidence showed that it was the appellant that purchased the land from the said family. He submitted that Exhibit P14, the Official Gazette, is sufficient evidence of the acquisition from the Agbeke family.

He referred to Exhibit P3, the Letter of Allocation to the respondent and submitted that the use of the word “ratification” therein acknowledged the existence of an existing right, which could only belong to the successors- in-title of the Agbeke family, i.e. the appellant. He noted further that the evidence before the Court shows that it was the Appellant who bought the land from the Agbeke family and this explains why the ratification refers to “previous private acquisition.”

Learned counsel submitted that the basis for the validation of the Certificate of Occupancy in the respondent’s favour by the lower Court, was its finding that the respondent was in possession before it applied to the Lagos State Government for the allocation of the land, contrary to the evidence on record. He maintained that the respondent was not in existence at the time the land was purchased from the Agbeke family. He also referred to the evidence-in-chief of PW1 where he testified that the respondent was a branch of the appellant but not subordinate to it but testified under cross-examination, that the land belongs to the appellant and that he was with the appellant up till 1995 as its Vice President.

Learned counsel argued that whatever possession the respondent had prior to its incorporation was that of the appellant and could not have been ratified by the appellant having regard to the fact that the respondent became a different legal entity upon its incorporation in 1996. He submitted that there was no evidence from which the lower Court could have inferred that the Lagos State Government subsequently re-acquired the land. He referred to Exhibit P3 and P4, which showed that the Government ratified the earlier private acquisition. He referred to Section 21 of the Public Land Acquisition Act Cap. 167 LFN 1958 and submitted that by that provision, the party in possession before the acquisition is the deemed holder of the title along with persons claiming under him, such as the appellant herein. He submitted that in the absence of evidence of a subsequent revocation and in the face of the fraudulent misrepresentation of facts by the respondent, the Court has powers to set aside the Certificate of Occupancy and declare the appellant the deemed holder of the Statutory Right of Occupancy. He submitted that the appellant pleaded and led evidence to prove fraudulent misrepresentation by the respondent.

On the issue as to whether there was any admission by the respondent that the land was purchased for the plaintiff, he referred to pages 20 and 24 of the record where PW1, Pastor Igbeare stated under cross- examination inter alia:

“The land was bought for Christ Apostolic Church, Mushin Branch. Mushin Branch was not registered then.”

and further:

“I agree that all the branches are under the Headquarters.

In 1976, the property in dispute belonged to Mushin Branch of the Apostolic Church of Christ, not the Grace Church of Christ.”

He also referred the respondent’s reply to the Statement of Defence and Defence to the counter-claim. He submitted that the averments therein and the respondent’s evidence reproduced above, were rightly acted upon by the learned trial Judge as supporting the appellant’s case. He referred to Lambe Vs Olayemi (2002) 12 NWLR (Pt. 748) 383.

He submitted that the issue of PW1’s use of the appellant’s receipt to apply for Certificate of Occupancy being ratified by the Mushin Branch where he was the Senior Pastor did not arise from the submissions of the respondent in its brief of argument under issue 2. He submitted that the issue was raised suo motu by the Court below, as opposed to the findings of the trial Court, which were supported by cogent and credible evidence. On this ground, he submitted that the appellant is entitled to a declaration in its favour. Relying on Egharevba Vs Osagie (2009) 12 SC (Pt 3) 123, he submitted that the lower Court has no right to interfere with the findings of the trial Court where such findings are well supported by evidence. He submitted that the Court, had made out a case different from what was presented by the parties, thereby occasioning a miscarriage of justice. See: Okwejiminor vs Gbakeji (2008) 1 SC (Pt. 3) 63: N.B.C.I. vs. Int. I Gas (2005) SC (Pt. 1) 63.

In response, learned counsel for the respondent argued that the issue before the lower Court was that the sale by the Agbeke family in 1976 was null and void, as they had been divested of their title by the 1972 Public Acquisition, which enured to the Lagos State Government by virtue of Section 1 of the Land Use Act, 1978. He submitted that it was the Agbeke family receipt that was used for the ratification. That the respondent applied for ratification vide Exhibit P3 and was granted approval in Exhibit P4. Consequently, Exhibit P2 was issued to the respondent. He submitted that as at the time Exhibit P2 was issued, the respondent had been duly registered as a corporate body.

He submitted that appellant failed to discharge the burden placed on it in an action for declaration of title, as laid down in Idundun Vs Okumagba (1975) 9–10 SC 22. He submitted that any purported title traceable to the Agbeke family by either of the parties is null and void. He contended that it is the party who can trace his root of title to the Lagos State Government that can succeed in a claim for declaration of title over the land in dispute. He observed that at the time of the ratification, PW1 was no longer an employee of the Appellant. He argued that there was no proof before the Court that the land was purchased for the Appellant. He submitted that the lower Court was right to have set aside the judgment of the trial Court, which the nullified the Certificate of Occupancy.

Learned counsel submitted, with reference to Exhibit P3, that the lower Court was right when it held that where there has been an acquisition for public purpose as shown in Exhibit P14, all prior interest thereon, whether standing to the benefit of the respondent or the Agbeke family stands extinguished. He submitted that the private acquisition referred to by the lower Court is the void sale made by the Agbeke family in 1976, when it no longer had title to pass by virtue of the 1972 Public Acquisition.

On the issue of possession, learned counsel submitted that the respondent was in possession by virtue of the title granted to it by the Lagos State Government and was therefore in lawful possession of the land. He maintained that the 1976 sale was a non-existing transaction.

He submitted that the evidence on record is that the land was acquired in 1997 vide Exhibit P14. He submitted that by virtue of the Land Use Act, 1978, all lands within a state vests in the Governor of that State. He contended that there was therefore no need for a subsequent acquisition of the land by Lagos State Government and therefore Exhibit P3 conferred valid title on the respondent. He submitted that the learned trial Judge had no authority to set aside the Certificate of Occupancy or declare the appellant as the deemed holder of a Statutory Right of Occupancy.

Learned counsel submitted that whether or not there was an admission is of no moment, as the acquisition of the land prior to the sale renders the purported sale null and void. He referred to Akerele Vs Atunrase (1969) 1 ALL NLR 201; Ajuwon vs Akanni (1993) 9 NWLR (Pt. 316) 182 @ 207.

In an action for declaration of title, the claimant may rely on any of the following methods to establish his case:

By traditional evidence.
By production of documents of title duly authenticated and executed.
By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership.
By acts of long possession and enjoyment.
By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.

See: Idundun Vs Okumagba (1976) 9-10 SC 227 @ 246: Nkado VS Obiano (1997) 5 SCNJ 33 @ 47: Owhonda vs Ekpechi (2003) 9—11 SCJ 1 @ 6; Arije vs Arije (2018) LPELR-4419 SC @ 34 B—G.

The onus is on the claimant to establish his title upon a preponderance of evidence or on the balance of probability. He must succeed on the strength of his own case and not on the weakness of the defence, if any, except where the defendant’s case supports his case. See: Arije Vs Arije (Supra): Kodilinye Vs Odu 2 WACA 336 @ 337: Onwugbufor Vs Okoye (1996) 1 NWLR (Pt. 424) 252: Nruamah vs Ebuzoeme (2013) 1 SC 31 @ 55—56.

In proof of its case, at the trial Court, the respondent relied on documentary evidence, to wit:

Exhibit P1: Certificate of Registration of The Grace Church of Christ dated 5th June 1996.
Exhibit P2: Certificate of Occupancy registered as No. 68 at page 68 in Volume 1997N at the Lagos State Land Registry dated 24/8/97.
Exhibit P3: Application for – Ratification of Occupation of Government Land dated 11/4/97.
Exhibit P4: Allocation of State Land through ratification dated 29/4/97.

It also relied on several receipts, showing payment of processing fees and taxes to the Lagos State Government.

As stated earlier in the review of the facts, it was the respondent’s contention that since the Lagos State Government had acquired the land in dispute in 1972, the sale of the land to either party by the Agbeke family in 1976 was null and void under the doctrine of nemo dat quod non habet. They had nothing to convey at the time. It was their contention that the respondent had every right to approach the Lagos State Government in 1997 for allocation of the land to it. On the other hand, it was also the respondent’s contention that as at 1976 when the land was purchased, it was purchased by the Mushin Branch of the Church in its own capacity and independent of the appellant.

The appellant, on its part contends that the land was purchased for and on behalf of the parent organisation, by the pastor in charge of the Mushin Branch of the Church, who was also, at the time, the Vice President of the Church. It is significant to note that both parties claim to have purchased the land from the Agbeke family in 1976 but later discovered that at the time of the sale, it had already been under Government acquisition since 1972.

The land was acquired by the Lagos State Government under the Public Lands Acquisition Law Cap. 176 of 1958 before the promulgation of the Land Use Act, 1978. Sections 1 and 2(1) (a) of the Land Use Act, 1978 provide:

“1. Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation are hereby vested on the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provision of this Act.

2(1) As from the commencement of this Act-

(a) all land in Urban areas shall be under the control and management of the Governor of each State;”

It follows therefore that with effect from 27th March, 1978, the land in dispute became vested in the Governor of Lagos State. It is equally trite that whoever purportedly purchased the land from the Agbeke family in 1976 had a defective title.

Section 5(1)(a) and 2 of the Act provide:

“5(1) It shall be lawful for the Governor in respect of land, whether or not in an urban area-

(a) to grant statutory right of occupancy to any person for all purposes;

(2) upon the grant of a statutory right of occupancy under the provisions of Subsection (1) of this Section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.”

The issue in contention here is, having discovered the defect in title, who had the right to apply to the Lagos State Government for ratification?

The Court below made the following findings at page 418 to 419 of the record:

“In an action for declaration of title, the plaintiff must not only establish the identity but must prove how he acquired the right to the said land. In this case, the identity of the land is not in dispute. However, there is no evidence of the acquisition from the Agbeke family as claimed. From the evidence led and exhibits tendered, I note in particular that Exhibit P3 ratifies the occupation of the plaintiff/appellant in respect of government land, which was said to have been the Appellant.

From the promulgation of the Land Use Act, 1978 Section 1 thereof, all lands are held in trust by the Government for the people. Where there has been acquired for Public purpose as shown by Exhibit P14, all prior interest thereron, standing to the benefit of the respondent or the Agbeke family, stand extinguished. Such a right may be transferred and re-conferred for overriding public purpose but certainly not for a private purpose.

The allocation to the Appellant who was said to be in possession of said land and who had applied for the title, is within the exercise of the power of the Lagos State Government.

It is a public purpose to allocate land for a place of worships. Exhibits P3 – the application for ratification of occupation of government land and allocation of same culminating into Exhibit P4, allocation through ratification and Exhibits P7, P8 and P9 (payment receipts and taxes) and Certificate of Occupancy (Exhibit P2) confers better title on the Appellant than that claimed by the Respondent who, though in occupation between 1990-1995 has been shown to be living on a piece of land in respect of which title to individual or family land had been extinguished. The transfer and issuance of Exhibit P2 to the Appellant is valid.”

(Underling mine).

Having regard to the facts of this case, it is pertinent to consider the basis upon which the respondent made its application to the Lagos State Government. Exhibit P3, dated 11th April, 1997, written on behalf of the Lagos State Government, reads as follows:

“The Grace Church of Christ

22, Araromi Street

Off Layi Oyekanmi

Ilasamaja

Mushin

Ref: Application for Ratification of Occupation of Government Land.

I am directed to inform you that the Military Administrator of Lagos State, Col. Mohammed Buba Marwa has approved your application for the ratification of your holding at Ejigbo covering an area of 1332.820 square metres delineated on Survey Plan No. MAF/5318/84L of 2/7/84 in Oshodi/Isolo Local Government Area of Lagos State.

You are please advised to contact the Executive Secretary of the Land Use and Allocation Directorate for further processing of your Certificate of Occupancy.
Thanks for your cooperation.

Signed:

Alhaji E.A. Fabolude

For: Chairman Ratification

(Underlining mine).

Exhibit P4 dated 29/4/97, also written on behalf of the Lagos State Government, states in part:

“The Grace Church of Christ

22, Araromi Street

Off Layi Oyekanmi

Ilasamaja

Dear Sir,

Formal Allcation of State Land Through Ratification.

Please refer to your application for allocation of parcel of land situate at Ejigbo, Mushin and described on Survey Plan No. MAF/5318/84L dated 2nd July, 1984. Although, the land was acquired privately, it was found to fall within Muritala Mohammed Airport Acquisition (adjacent to) – residential zone while processing your application.

I am pleased to inform you that after due consideration of your application, the Military Administrator of Lagos State has approved that the land be allocated to you in accordance with the Land Policy of the present administration under the following terms and conditions: –

i. Size of Land: – 1332.820 sq. metres

ii. Type of Use – Residential

iii.

iv.

vi.

vii.

viii.

ix.

…

Yours faithfully,

Signed

Adesegun Ogunlewe

Executive Secretary.

(Underling mine)

It is evident from these two exhibits that what the respondent applied for was the ratification of its holding, which had been acquired privately.

Black’s Law Dictionary, 8th Edition defines “ratification” as follows:

“Confirmation and acceptance of a previous act, thereby making the act valid from the moment it was done.”

The effect of ratification therefore, is to put the parties in the same position as they would have been had the act ratified been previously authorised. See: Vulcan Gases Ltd Vs Gesellschaft Fur Ind. Gasverwertung, A.G. (2001) 9 NWLR (Pt. 719) 610; Carlen (Nig) Ltd. vs Uni Jos (1994) 1 NWLR (Pt. 323) 631; Ogunseye Vs Registered Trustees of World Mission Agency Incorporated & Ors. (2017) LPELR-42767 (CA) @ 17-19 C-A.

The act sought to be ratified was the invalid sale made by the Agbeke family. It was not an open application requesting for the allocation of any parcel of land within the Mushin Area. It was an application in respect of a specific parcel of land. Both parties relied on the acquisition from the Agbeke family, which was found to be defective. It would therefore not be correct, as stated by the lower Court to say that there was no evidence of acquisition from the Agbeke family. Both parties were ad idem on this issue. Also, from Exhibit P4 reproduced earlier, the property was not allocated to the respondent for a public purpose or for a place of worship. It was allocated for residential purpose. Where there are competing titles, which trace their root to the same source, the one who can show a better title prevails. See:Omiyale Vs Macaulay (2009) FWLR (Pt. 479) 399: Otukpo vs John (2013) ALL FWLR (Pt: 661) 1509; (2012) LPELR–25053 (SC).

It is also trite that a Certificate of Occupancy is only prima facie evidence of title or possession, but it is not conclusive proof of title to the land to which it relates. See: Registered Trustees Mission vs Olowoleni (1990) 6 NWLR (Pt. 158) 514: Otukpo Vs John (Supra): Adole Vs Gwar (2008) 11 NWLR (Pt. 1099) 562: (2008) LPELR-189 (SC) @ 17 D-E.

A timeline of events will give a clearer picture of what transpired in this case:

1963 – Incorporation of the Registered Trustees of Apostolic Church of Christ (Spiritual Movement).

1972 – Acquisition of Land in dispute by the Federal Government under the Public Lands Acquisition Act Cap. 167 of 1958.

1976 – Purported sale of the land in dispute by the Agbeke family.

1978 – Promulgation of the Land Use Act 1978.

1984 – Survey Plan No. MAF/5318/84L prepared.

11/11/87 – Pastor Igbeare (PW1’s) title changed from Prophet to Pastor and appointment as Vice President of Apostolic Church of Christ vide Exhibit D1.

5/6/1996 – Incorporation of Grace Church.

11/4/1997 – Application for ratification approved.

29/4/1997 – Formal Allocation to Grace Church.

24/8/1997 – Certificate of Occupancy issued to Grace Church.

It is quite evident from the timeline above, that at the time of the transaction with the Agbeke family, which the respondent relied upon in its application for ratification, the Registered Trustees of Grace Church of Christ were not in existence. It is equally evident that many years later, in 1987, PW1, the promoter of the respondent, was still receiving instructions from the appellant in his capacity as the Pastor of the Mushin branch.

The learned trial Judge made some findings of fact as follows:

“PW1 admitted during cross-examination that as at 1976, the Plaintiff was not in existence. The Church at 14 Palm Avenue Street was a branch of the Defendant. The evidence of PW1 under cross-examination confirmed the testimony of DW1 that the Mushin Branch was under the Headquarters. The Pastor of the branch, PW1, was appointed by the Defendant vide Exhibit D1. As Pastor of Mushin Branch, PW1 was obliged to attend meetings at the Headquarters. On one occasion that he could not attend, he wrote a letter of apology, Exhibit D2.

Therefore, contrary to the assertion of PW1 that Mushin Branch was independent and was not subordinate to the Headquarters, the evidence before the Court showed otherwise. PW1 did not have power to ordain ministers at the Mushin Branch. They were presented by him to the Headquarters for ordination. The Ordination was done on 26th September, 2003, (sic: 1993) Exhibit D3. From 1976 when the land was purchased up until PW1 left Defendant Church to establish his own church, he never challenged the authority of the Defendant.

By PW1’s own admission in his pleading, contrary to his evidence in Court, it was the defendant’s church that commissioned him, DW1 and others to negotiate for and buy the land for the Mushin branch. In his words, “the land was bought for Christ Apostolic Church Mushin Branch”.

…

What PW1 did was to use his position as Vice President of the Defendant and his custody of the purchase receipt to surreptitiously apply for the certificate of occupancy for his church using the Defendant’s purchase receipt.”

The above finding of the learned trial Judge is fully supported by the evidence on record. Exhibit D2 written by PW1, Pastor Igbeare on 22nd April, 1994 was signed by him in his capacity as the Vice President of the Apostolic Church of Christ. In the programme for the Headquarters’ Ordination Ceremony held on 26th 1993, PW1 is referred to as representing the Mushin Branch of the Church.

Furthermore, as pointed out by the learned trial Judge, PW1 admitted under cross-examination that all the branches of the Church were under the Headquarters and that in 1976, the property in dispute belonged to the Mushin Branch of the Apostolic Church. It could not have been otherwise because, the respondent did not come into existence until 1996. It debunks respondent’s contention that the Mushin branch was co-ordinate and not subordinate to the Headquarters. I agree with the learned trial Judge that PW1, being the Vice President of the Church, who had custody of the receipt issued by the Agbeke family, took advantage of his position and knowledge of the defect in title, and used the receipt to apply for ratification of the sale by the Agbeke family. In other words, Exhibits P2, P3 and P4 were obtained on the basis of fraudulent misrepresentation. Exhibit P2 could not confer a valid title on the respondent.

Having discovered that there was a defect in the title obtained from the vendors, the appellant was the party entitled to apply to the Lagos State Government for ratification of same and for the grant of a Statutory Right of Occupation in respect thereof. The learned trial Judge meticulously evaluated the evidence before him. His findings ought not to have been disturbed.

This issue is accordingly resolved in the appellant’s favour.

ISSUE 2

Whether the Court below was in error when it granted all the reliefs of the Plaintiff/Respondent, particularly its claims for special and general damages which were never proved by credible evidence.

Having regard to my finding on issue 1, the respondent is not entitled to general damages for trespass. I have considered the arguments of learned counsel on either side on the claim for special damages. While it is contended on behalf of the appellant that the respondent gave no evidence in support of the claim for N413,820.00, being the costs of its fence destroyed and building materials allegedly carted away by the appellant, it is the appellant’s contention that no evidence was led in proof of the claim.

The respondent’s pleading with regard to the special damages can be found in paragraphs 19 and 20 of the Further Amended Statement of Claim at page 176 of the record:

“19. That the plaintiffs proposed to use the land, subject matter of this suit as a permanent site to conduct their services.

That the plaintiff later deposited building materials on the site of 23/25 Fayemi Street Ejigbo Lagos, subject matter of this suit as stated hereunder.

(The items were listed in sub-paragraphs (i)-(v))”

In support of its pleadings, PW1 testified for the respondent, inter alia:

“We bought building materials after we had fenced the land. The building materials got lost.”

There was no pleading that the building materials were removed by the appellant, its servants or agents. The respondents did not establish any nexus between the appellant and the loss sustained. The law is that special damages must be strictly proved by the person who claims to be entitled to them. The nature of the proof required depends on the facts and circumstances of the case. The evidence must however be credible. See: Oshinjirin Vs. Elias (1970) ALL NLR 151 @ 156: B.B. Apugo & Sons Ltd. Vs OHMB (2016) 13 NWLR (Pt. 1529) 206. British Airways vs Atoyebi (2014) 13 NWLR (Pt. 1424) 253. The receipts tendered by the respondent show that materials were bought. There was however, no evidence to establish the assertion that they were destroyed by the appellant.

In any event, having resolved issue 1 in the appellant’s favour, this issue is resolved against the respondent.

ISSUE 3

Whether the Court below set up a case different from the one presented by the parties themselves in their pleadings and evidence?

Learned counsel for the appellant submitted that the respondent did not plead or rely on the fact that Exhibit P2 was granted to it on the ground of overriding public interest for a place of worship. He argued that the Court is bound to confine itself to the issues raised by the parties before it, and where it raises an issue suo motu, the parties must be invited to address it before it reaches its decision. See: Shasi & Anor. Vs Smith Ors. (2009) 12 SC. (Pt.3) 1: A.G. Leventis vs Akpu (2007) 6 SC (Pt. 1) 239.

Learned counsel for the respondent submitted that the respondent pleaded in paragraph 19 of its 2nd Amended Statement of Claim that the land was required for a place of worship, which pleading was supported by the oral evidence of PW1.

In light of the pleading and evidence on record, I do not agree with the appellant that the lower Court made out a case for the parties by raising the purpose for which the Certificate of Occupancy was granted. In the course of resolving issue 1, I noted that the Court below was wrong when it held that the Certificate of Occupancy was granted for overriding public purpose or as a place of worship. Exhibit P2 clearly states that the Certificate of Occupancy was granted for residential purpose. The appellant has not shown that it has suffered any miscarriage of justice in this regard. This issue is resolved against it.

ISSUE 4

Whether the lower Court’s reference to a cross-appeal in the judgment occasioned a miscarriage of justice to the appellant.

Learned counsel for the appellant noted that in concluding part of its judgment, the lower Court held thus:

“A careful scrutiny of the evidence reveals that the plaintiff/appellant had established his case on the preponderance of evidence while the respondent fails as it is hinged on the success or failure of the main appeal, as the issues are virtually the same.

…

For the foregoing, it is my decision that this appeal has merit. It succeeds and, in the corollary, the cross-appeal fails and is dismissed.”

He referred to the record and observed that there was no cross-appeal filed at the Court below. He submitted that while a cross-appeal may fail where the main appeal succeeds, the situation is different where there is a counter-claim, as a counter-claim, in the eyes of the law is a separate action, which may depend on different facts and circumstances. He submitted that reliance on a non-existent cross-appeal is tantamount to reliance on an issue not connected with the real question placed before the Court for adjudication. He referred to:Ejowhomu Vs Edok- Eter Mandilas Ltd. (1986) 2 NSCC 1184.

In response, Learned counsel for the respondent submitted that it is settled law that it is not every slip or mistake made by a Court that would lead to the decision being overturned. He referred to:Onyemaizu Vs Ojiako (2010) 23 WRN 1 @ 11—12. He submitted that the appellant failed to show how the error or slip affected or influenced the decision of the lower Court or occasioned a miscarriage of justice. He referred to: Onifade vs Olayiwola (1990) 21 NSCC (Pt. III) 412 @ 432.

In resolving this issue, I am at one with the respondent. The reference by the lower Court to a cross-appeal is clearly an error or a slip as there was no attempt, in the course of the judgment, to determine a cross-appeal. The appellant has not shown what damage it has suffered by the error. As rightly submitted by learned counsel for the respondent, it is not every error or slip made by a Court that will result in the reversal of the decision. In addition to Onifade Ys Olayiwola (Supra), see also: Ikumonihan vs The State (2018) LPELR- 44362 (SC) @ 28-29 E-A: Abdulmumini vs FRN (2017) 12 SC (Pt. 1) 37: Owhonda Vs Ekpechi (2003) SCNJ 1: Kraus Thompson Organization Ltd. Vs. University of Calabar (2004) 4 SC. (Pt 1) 65: (2004) LPELR-1715 (SC) @ 18-19 E-A.

On the above authorities, the error must be fundamental and must have a crucial effect on the decision, thus occasioning a miscarriage of justice. The appellant has not satisfied this requirement in the instant case. This issue is therefore resolved against the appellant.

In conclusion, notwithstanding the resolution of issues 3 and 4 against the appellant, there is merit in the appeal. It is hereby allowed. The judgment of the lower Court delivered on 4/2/2011 is hereby set aside. The judgment of the High Court of Lagos State delivered on 10/6/2005 is affirmed.

Costs of N500,000.00 is awarded against the respondent in favour of the appellant.

Appeal allowed.

SC.270/2011

Rahamaniya United (Nig) Ltd V. Minister Of Fct & Ors (2021) LLJR-SC

Rahamaniya United (Nig) Ltd V. Minister Of Fct & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C.

The Appellant was allocated plots of land measuring about 8000m2 delineated as Plots 216, 217, 218, 219, 225, 226, 227, 228, Wuye District, Abuja, vide a letter of offer of Terms of Grant/Conveyance of approval dated 4/1/1995 as shown at page 8 of the record. The acceptance was made after 36 days by the Appellant and submitted same to the 1st-3rd Respondents. See pages 8 and 9 of the record. The design of the building was carried out by the Appellant’s architect but the development of the land was stalled because infrastructures were yet to be in place and the Certificate of Occupancy was not yet issued. In the interim, the Appellant on 18/10/2000 noticed that some unknown persons herein referred to as the 4th Respondent, took possession of the land and dug foundation to commence development thereon. Inquiries made at the office of the 2nd and 3rd Respondents to ascertain the identity of the 4th Respondent failed. Besides, the Appellant could not also locate its file with them. This consequently caused the Appellant to file an action before the Federal High Court, Abuja, on 22/3/2004, seeking for the reliefs contained at page 7 of the record.

The 1st to 3rd Respondents without filing statement of defence challenged the jurisdiction of the trial Court to entertain the suit vide a preliminary objection on the ground that it is statute barred by virtue of Section 2(a) of the Public Officers Protection Act, 1990. The trial Court upheld the preliminary objection and dismissed the suit. The Appellant lost when it appealed to the lower Court, hence this appeal. The Appellant has distilled 3 issues for the determination of this appeal thus:

Whether the Justices of the Court of Appeal considered the justice of the appeal before them when they ignored and failed to determine the nature of relationship subsisting between the parties canvassed by the Appellant.
Were the Justices of the Court of Appeal right when they held that the 1st, 2nd and 3rd Respondents were entitled to protection offered by the Public Officers Protection Act.
Was the Court below right in affirming the decision of the trial Court when it failed to avert its mind to the fact that the trial Court has no jurisdiction in entertaining the preliminary objection of the Respondents?

The 1st to 3rd Respondents contrarily formulated 2 issues for determination thus:

Whether Section 2(a) of the Public Officers Protection Act, Cap 379, Laws of the Federation of Nigeria, 1990, can be applicable in the circumstances of this matter?
Whether the Court of Appeal correctly considered the cardinal issues arising from this case?

I shall summate the issues distilled by both the Appellant and the 1st-3rd Respondents into one as follows:

Whether the lower Court was right to dismiss the case of the Appellant on the preliminary objection filed that the Appellant’s case was caught up by Section 2(a) of the Public Officers Protection Act?

SUBMISSIONS OF COUNSEL:

The Appellant’s submission is that the fresh issue of law which the lower Court granted leave to the Appellant to argue was not considered by the lower Court, thereby denying fair hearing and occasioning miscarriage of justice to the Appellant. He relied on LARMIE V. D.P.M. S. LIMITED (2005) 18 NWLR (PT.958) AT 463.

It was further submitted that the protection accorded by Section 2(a) of the Public Officers Protection Act does not avail where there is an abuse of office with no semblance of legal justification, or to cases of contract. He cited in support the cases of OFFOBOCHE V. OGOJA LOCAL GOVERNMENT (2001) 16 NWLR (PT.739) AT 457 and F.G.N. V. ZEBRA ENERGY LIMITED (2002) 18 NWLR (PT. 798) AT 175 respectively.

The Appellant’s learned Counsel’s submission herein is that the lower Court did not have jurisdiction to have entertained the preliminary objection when it was not accompanied with a statement of defence as provided by Order 26 Rule 2(1) of the Federal High Court (Civil Procedure) Rules, 2000. He equally cited in support the case of IBRAHIM V. APC (NO.1) (2019) 16 NWLR (PT. 1699) AT 460. He prayed for the resolution of this issue in favour of the Appellant and that the appeal be allowed.

The 1st to the 3rd Respondents on the other hand argued that once an act complained of was done by a public officer, it is immaterial whether it is contractual or recovery of land. He cited in support F.O. OBAYIUWANA V. MINISTER OF FEDERAL CAPITAL TERRITORY, CA/A/152/06 DELIVERED ON 15/1/2009.

It is further submitted that the lower Court determined all the issues submitted for consideration by the Appellant. Besides, that the lower Court did not err in failing to pronounce specifically on the issue of the nature of relationship between the Appellant and the 1st-3rd Respondents, neither did the failure occasion a miscarriage of justice. He relied on AKPAN V. FRN (2012) 1 NWLR (PT. 1281) 421. He therefore urged that this issue be resolved in their favour and to dismiss the appeal.

Without the repetition of the facts in this appeal, the Appellant and the 1st-3rd Respondents entered into a contract in respect of the allocation and conveyance of Plots 216, 217, 218, 219, 225, 226, 227, 228, Wuye District, Abuja, vide a letter of offer of Terms of Grant/Conveyance of approval dated 4/1/1995. Nevertheless, the 1st-3rd Respondents re-allocated same to unknown persons, who ought to have been joined in the suit. This amounted to revocation of the Appellant’s interest in the land without communicating same to the Appellant contrary to Section 28 (6)(7) of the Land Use Act, 1990.

I must not dispute the fact that the 1st-3rd Respondents are entitled to protection and privileges contained in Section 2(a) of the Public Officers Protection Act before an action is instituted against them. This however, is not a general rule.

Although the 2nd Respondent has the statutory right to allocate land in the Federal Capital Territory pursuant to Section 5 of the Land Use Act, the exercise is subject to Section 28 of the same Act. Plots 216, 217, 218, 219, 225, 226, 227, 228, Wuye District, Abuja, have been allocated by the 2nd Respondent to the Appellant and the Appellant’s interest in same has not been revoked by the 2nd Respondent, which went ahead to re-allocate same to unknown persons, that their identity has remained a mystery to me.

There is nothing to describe this act but like beating a child and forcing it not to cry. This indeed is oppression and injustice. The statute provides in its protection of the Public Officer only “ANY ACT DONE IN PURSUANCE OR EXECUTION OR INTENDED EXECUTION OF ANY LAW OR OF ANY PUBLIC DUTY”. The question that readily comes to mind is whether any public officer has any public duty or authority to break the laws of the realm? No such duty or right inheres in the Public Officer to break the law. As law breaking or insubordination to the letters and spirit of the law is not a function delegated to the public officer by law, therefore a public officer who breaks the law with impunity cannot be said to be executing the law or intending to execute the law by his malfeasant act of breaking the letters and spirit of the law or statute that he is entrusted to execute. See Per EKO, JSC, in AWOLOLA V. GOVERNOR OF EKITI STATE & ORS (2018) LPELR – 46346(SC) (PP. 47-50, PARAS. B-E). There is absolutely no justification for the act of the 1st-3rd Respondents or protection under Section 2(a) of the Public Officers Protection Act in this regard.

We are not unaware of the shoddy and shady dealings that agents of the 3rd Respondent carry out in the FCT to their self enrichment and aggrandizement. The Act is therefore a double-edged sword, not only for the protection of the public officers but also of the innocent and oppressed. This was re-enforced in A.G, RIVERS STATE V. A.G., BAYELSA STATE (2013) 3 NWLR (PT. 1340) AT 148, wherein this Court held that the Act is intended as much as within the limits of the law to protect public officers from detraction and unnecessary litigation, but never intended to deprive a party of legal capacity to ventilate his grievance in the face of stark injustice. Per PETER-ODILI, JSC, in AG ADAMAWA STATE & ORS v. AG FEDERATION (2014) LPELR-23221(SC) (Pp. 32-33, paras, C-A), relying on per Onnoghen, JSC, in Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 591 posited that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act.

Similarly, by the statement of claim with the reliefs of the Appellant contained at pages 4-7, it is without disputation that it is a suit founded on recovery of land that has been re-allocated to the 4th Respondent. What then is the position of the law? A strikingly similar scenario came up last year before this Court.

In CIL RISK & ASSET MANAGEMENT LTD V. EKITI STATE GOVT. & ORS (2020) LPELR-49565(SC), sometime in 2007, the Appellant was granted title to a parcel of land for the purpose of building a five star hotel. A Certificate of Occupancy was issued to the Appellant in 2008. Subsequently, the certificate was withdrawn and another one was issued in its place in 2011, but registered in 2012. Both certificates contained terms and conditions including that the Appellant must erect and complete the building on the land in line with Government approved building plans within 2 years of the issuance of the Certificate of Occupancy. The Appellant failed to comply with the terms of the grant, consequent upon which the 1st Respondent revoked the Appellant’s right of occupancy and subsequently awarded the said parcel of land to the 4th Respondent. In October 2016, the Notice of Revocation was published in a newspaper. Aggrieved that the notice of revocation was served or made known to it through the dailies, the Appellant commenced an action at the High Court, challenging the said revocation.

The 1st-3rd Respondents filed a preliminary objection challenging the competence of the action on the grounds inter alia, that the action was statute barred, and that the suit disclosed no reasonable cause of action. The trial Judge upheld the Respondents’ objection that the action was statute barred, after finding as a fact that the Appellant was served with the notice of revocation in December 2014. Dissatisfied with the ruling of the Court, the Appellant appealed against same to the Court of Appeal, albeit unsuccessfully. Appellant appealed further to the Supreme Court. In conclusion, the Supreme Court allowed the appeal.

Per EKO, JSC, in CIL RISK & ASSET MANAGEMENT LTD V. EKITI STATE GOVT. & ORS(2020) LPELR- 49565(SC) (PP. 6-9, PARAS. E-C) settled this issue thus:

This Court… held that “the protection afforded public officers under the Public Officers Protection Act does not apply in cases of recovery of land. The second limb of the Appellant’s submission on the scope of Section 2(a) of the Public Officers Protection Act is that the provision does not apply to cases founded on contract, or breach of contract. OSUN STATE GOVERNMENT V. DALAMI (NIG) LTD (2007) 9 NWLR (pt. 1038) 66 is a case founded on breach of lease agreement. The respondent sued the Osun State Government seeking a declaration that the latter’s purported termination of the Management Lease Agreement was wrongful. The respondent sought a further order nullifying or setting aside the purported termination, and an order for specific performance. Osun State Government pleaded limitation afforded by the Public Officers Protection Act. This Court unanimously rejected the plea and held that Section 2 of the Public Officers Protection Act does not apply in cases for recovery of land or breach of contract…

Per MARY UKAEGO PETER-ODILI, JSC (P. 55, paras. A-E) in the same case above held that the protection afforded public officers under the Public Officers (Protection) Act does not apply in cases of recovery of land. Same with the dictum of Per CHIMA CENTUS NWEZE, JSC (Pp. 88-89, paras. B-A) in the same case above that the scope of the Public Officers Protection Act does not extend to actions founded on breach of contract.

Per GALUMJE, JSC, in ROE LTD V. UNN (2018) LPELR-43855(SC) (PP. 21-22, PARAS. D-A) pointedly declared that:

The Public Officer Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done.

In the instant appeal, the 1st-3rd Respondents filed the said preliminary objection without filing any statement of defence, which the trial Court used to dismiss the case of the Appellant and affirmed by the lower Court. It is the Appellant’s contention that the lower Court erred to have affirmed the trial Court’s decision since it lacked the jurisdiction to entertain the said preliminary objection unaccompanied by the statement of defence, contrary to Order 26 Rule 2(1) of the Federal High Court (Civil Procedure) Rules, 2000.

Although objection to jurisdiction could be taken on the basis of the statement of claim, on the evidence received or by a motion on notice supported by affidavit giving the facts upon which reliance is placed. In fact, it could be taken even on the face of the writ of summons before filing statement of claim. See Per MOHAMMED, JSC in ELABANJO & ANOR V. DAWODU (2006) LPELR- 1106(SC) (PP. 18-19, PARAS. C-E). It is however advisable and desirable to file a statement of defence to it before the objection is raised, whether it borders on the Court’s jurisdiction or not, since demurrer has been abolished.

The 1st-3rd Respondents chose not to respond to or argue this issue and same is deemed admitted. I do not need to dissipate energy anymore or walk the extra miles again to conclude on this appeal. The 1st-3rd Respondents did not join issue with the Appellant on issue 3, hence it is deemed admitted and succeeds.

I must hastily state here that a Counsel must understand the import of judicial precedents and the hierarchy of Courts as regards the application of decided cases. The 1st-3rd Respondents’ learned Counsel has copiously cited and relied on decided authorities of the Court of Appeal to persuade this Court to decide this appeal in their favour. This ought not to be so. There is plethora of Supreme Court cases on these issues, which the Respondents’ Counsel ought to have relied upon to cause this Court to bind itself by them. Most of the relevant cases cited by the learned Counsel to the 1st-3rd Respondents are decided cases of Court of Appeal and I have not been swayed or persuaded by them.

The Appellant’s interest in plots 216, 217, 218, 219, 225, 226, 227, 228, Wuye District, Abuja, vide a letter of offer of Terms of Grant/Conveyance of approval dated 4/1/1995 is still vested in it and subsists since it has not been validly revoked. Besides, the unknown persons have not been made parties adverse to the interest in the said plots. Thus, I make bold to say that this Court cannot decide on parties who lay claim to plots 216, 217, 218, 219, 225, 226, 227, 228, Wuye District, Abuja, that have not been identified or made parties in this appeal. Furthermore, if they have interest in the said plots, they ought to have been joined or sought to be joined. The failure to join themselves is against them.

This issue is decided in favour of the Appellant. The appeal succeeds and is allowed. The matter should be remitted to another judge of the trial Court for expeditious hearing. Parties are to bear their own costs.

SC.164/2009

Al-masmoon Security Ltd V. Pipelines & Marketing Products Co. Ltd (2022) LLJR-SC

Al-masmoon Security Ltd V. Pipelines & Marketing Products Co. Ltd (2022)

LAWGLOBAL HUB Lead Judgment Report

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

The appellant and the respondent herein, entered into a contract on 1/10/2007 wherein the appellant was contracted to provide security for the respondent’s headquarters at NNPC Towers Abuja, Kaduna Depot, Zaria Depot and Zaria Pump stations respectively. The respondent however terminated the contract on 31/01/2014. The appellant was aggrieved and instituted an action before the High Court of the Federal Capital Territory (FCT) seeking the following reliefs:

“1. An order directing the defendant not to terminate the security agreement unless in accordance to the terms of agreement dated 1st day of October, 2007.

A perpetual order restraining the defendant from acting on its letter of termination of the security contract for the plaintiff to provide security guards at the defendant’s Kaduna Depot and Zaria Pumping station.
An order that the purported letter of termination of contract of security between the parties amounts to a breach of contract.
The plaintiff claims the sum of Twenty Million Naira (N20,000,000.00) from the defendant for breach of contract.
The cost of this suit.”

The respondent, upon receipt of the Writ of Summons, Statement of Claim and accompanying documents, filed a notice of preliminary objection challenging the competence of the suit for failure of the appellant to serve one month’s pre-action notice, contrary to Section 12(2) of the Nigerian National Petroleum Corporation (NNPC) Act Cap. N.23, Laws of the Federation of Nigeria (LFN) 2004. In a considered ruling delivered on 5/3/2014, the preliminary objection was overruled on the ground that the Pipelines and Products Marketing Co. Ltd. is not a wholly owned subsidiary of NNPC and therefore does not fall within the purview of Section 12(2) of the NNPC Act requiring pre-action notice. Consequently, the Court assumed jurisdiction.

The respondent, being dissatisfied with the ruling appealed to the Court below. Allowing the appeal, the Court held, inter alia:

Having regard to the fact that the appellant is a corporate subsidiary of NNPC, as can be discerned by the respondent’s Statement of Claim, the respondent’s witness statement on oath, the agreement between the parties and the respondent and the affidavit in support of the appellant’s notice of preliminary objection, the appellant is entitled to be served a pre-action notice as provided for by Section 12(2) of the NNPC Act. By the failure of the respondent to serve the appellant the prescribed pre-action notice before filing its suit, a pre-condition to the competence of the action has not been complied with. The respondent’s action is therefore premature and it is liable to be struck out …Consequent, the respondent’s action with suit No, FCT/HC/CV/160/2014 is hereby struck out for lack of jurisdiction.”

It is the appellant who is now aggrieved. Its notice of appeal filed on 31/10/2015 can be found at page 160-163 of the record. It contains 4 grounds of appeal.

At the hearing of the appeal on 2nd November 2021, E.J. ESENE ESQ adopted and relied on the Appellant’s brief filed on 23/12/2015 and its Reply brief filed on 4/8/2016, both deemed filed on 2/11/2021, in urging the Court to allow the appeal. M.E. ORU ESQ. drew the Court’s attention to Notice of Preliminary Objection filed on 2/3/2016 and deemed filed on 8/2/2017, which is also incorporated in the Respondent’s brief filed on 29/2/2016 and deemed filed on 8/2/2017. He adopted and relied on the preliminary objection in urging the Court to strike out the appeal, or alternatively, to dismiss the appeal on the merits based on the arguments therein against the appeal.

The Preliminary objection challenges the hearing of the entire appeal. It must therefore be considered and resolved before delving into the merit of the appeal, should the need arise. The reason is not far-fetched. In the event that the objection has merit, the appeal will be terminated in limine.

The grounds of the objection are as follows:

The Notice of Appeal filed on 31st August, 2015 was not signed by any of the solicitors named therein but signed for the solicitor by a person who neither indicated his name and designation nor known to be a legal practitioner contrary to the provisions of Sections 2(1) and 24 of the Legal Practitioner’s Act, Cap. L11 LFN 2004.
The Notice of Appeal as shown at pages 160-163 of the Record is not stamped and sealed with the stamp of the Legal Practitioner who signed it contrary to Rule 10(1) of the Rules of Professional Conduct, 2007 made pursuant to the Legal Practitioners Act Cap. L11 LFN 2004.
All the grounds of appeal are grounds of mixed law and facts and leave of Court was not sought and obtained before filing, thus rendering the grounds null and void.

On the first ground of objection, learned counsel for the respondent observed that the Notice of Appeal was not signed by any of the counsel stated at page 163 of the record. He noted further that there is a signature above the name Emmanuel Esene Esq. with the letters “PP” written beside the name, signifying that someone signed on behalf of Emmanuel Esene. He submitted that there is nothing to show that the person who signed for Emmanuel Esene Esq. is himself a legal practitioner as provided for in Sections 2(1) and 24 of the Legal Practitioners Act. He submitted that the letters “PP” stand for “per procurationem” meaning “by authority” or “representing” in Latin.

He submitted that all legal processes must be signed by identifiable legal practitioners whose names are on the roll of Legal Practitioners at the Supreme Court. He submitted further that being the foundation or substratum of an appeal, any defect in the Notice of Appeal will render the appeal incompetent and the Court would lack the requisite jurisdiction to entertain it. He referred to: Uwazurike Vs A.G. Federation (2007) ALL FWLR (Pt.367) 834 @ 846; Shellim Vs Gobang (2009) ALL FWLR (Pt.496) 1866 @ 1880- 1881; Tukur Vs Government of Gongola State (1988), NWLR (Pt. 68) 39; Okafor Vs Nweke (2007) ALL FWLR (Pt.368) 1016 @ 1025-1027; (2007) 1 NWLR (Pt.1043) 521.

On the importance of it being clear who signed a process and the identity of such person as a Legal Practitioner whose name is on the roll of Legal Practitioners in Nigeria, he referred to Ministry of Works & Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt.1351) 481; (2013) ALL FWLR (Pt.694) 23 @ 36 F-H; SLB Consortium vs NNPC (2011) 9 NWLR (Pt.1252) 317 @ 337 – 338, and a host of other authorities.

On the second ground of objection, learned counsel submitted that there was non-compliance with Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007, in that the person who prepared the Notice of Appeal did not affix his stamp and seal thereto. He submitted that the provision is mandatory and therefore legal practitioners are not afforded any discretion in the matter. On the effect of the word “shall” when used in a statute, he referred to Okereke Vs Yar’adua (2008) 12 NWLR (Pt.1100) 95 @ 127 F – G; Ugwu Vs Ararume (2007) ALL FWLR (Pt.377) 807 @ 857 C – F. He argued further that where the law prescribes the procedure for doing a particular thing, the prescribed procedure must be complied with. He referred to: Dongtoe Vs CSC Plateau State (2001) ALL FWLR (Pt.50) 1637 @ 1663A; Amaechi vs INEC (2008) ALL FWLR (Pt.407) 1 @ 98 C – D. On the need for a legal practitioner to comply with the directives of the Nigerian Bar Association (NBA), he referred to: Chinwo Vs Owhonda (2006) 2 NWLR (Pt.1074) 341.

On the third ground of objection, learned counsel submitted that the grounds of appeal before this Court question the evaluation of facts established before the trial Court and are therefore grounds of mixed law and fact, for which prior leave of this Court or the Court below ought to have been sought or obtained, in accordance with Section 233(3) of the 1999 Constitution, as amended. He referred to: Opuiyo Vs Omoniwari (2007) ALL FWLR (Pt.378) 1093; Oluwole Vs LSDPC (1983) SC 1; Adejumo Vs The State (1983) 5 SC 24; Ogbechie Vs Onochie (1986) 1 NWLR (Pt.23) 484 @ 491. He submitted that having failed to obtain leave, the grounds of appeal are liable to be struck out. He cited several authorities, including Njemanze Vs Njemanze (2013) 203 MJSC (Pt. II) 30 @ 59 – 60; Oforkire Vs Maduike (2003) 5 NWLR (Pt.812) 166; Oluwole Vs LSPDC (supra). He urged the Court to uphold the objection and strike out the appeal.

In response, learned counsel for the appellant reiterated the well settled principle that only a person whose name appears on the roll of Legal Practitioners at the Supreme Court and who is eligible to practice law as a barrister and solicitor, can sign a Court process. He submitted that in the instant case, the “PP” appearing beside the name Emmanuel Esene, Esq. at page 163 of the record, means “principal partner” and not “per procurationem” in Latin, as asserted by learned counsel for the respondent. He submitted that the process was signed by Emmanuel Esene, Esq., who is the principal partner in the law firm of Emmanuel Esene & Co.

He urged the Court to compare the signature with the one appearing at particular pages of the record, which he argues, are the same. On the manner in which a process should be signed by a legal practitioner, he referred to: Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt.1348) 570. He submitted that the appellant’s counsel fully complied with the requirements. He referred to Nigerian Army Vs Samuel (2013) 14 NWLR (Pt.1375) 460; FBN Plc Vs Maiwada (2013) 5 NWLR (Pt.1348) 444; Okafor Vs Nweke (supra); SLB Consortium Vs NNPC (supra) and urged the Court to hold that the notice of appeal is competent.

On the failure to affix learned counsel’s stamp and seal to the notice of appeal, he submitted that the said notice of appeal, dated 27/7/2015 was filed on 31/8/2015 prior to the decision of this Court in SC.22/2015: Yaki & Anor Vs Bagudu, delivered on 13/11/2015, where it was held that the affixing of their stamp and seal on legal processes by Legal Practitioners is mandatory. He submitted that prior to the decision, compliance was not strictly enforced. On this issue, he urged the Court to lean in favour of substance and not technicalities.

On the competence of the grounds of appeal, he submitted that they are grounds of law alone and not grounds of mixed law and fact, as contended by the respondent’s counsel. He submitted that all the grounds of appeal are seeking the interpretation of Sections 12(2) and 22(1) of the NNPC Act and therefore do not require leave. On how to determine whether a ground of appeal is a ground of law alone or one of mixed law and facts, he referred to Ekunola Vs C.B.N. (2013) 15 NWLR (Pt.1377) 244; Jim-Jaja Vs C.O.P. Rivers State (2013) 6 NWLR (Pt. 1350) 225 B – C; NNPC Vs Famfa Oil Ltd. (2012) 17 NWLR (Pt.1328) 148 and several other cases in urging the Court to dismiss the preliminary objection.

Resolution of the Preliminary Objection

Sections 2(1) and 24 of the Legal Practitioners Act provides as follows:

(1) Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.
In this Act, unless the context otherwise requires, “legal practitioner” means a person entitled to practice as a barrister or solicitor, either generally or for the purposes of any particular office or proceeding.”

These provisions have been interpreted in a plethora of decisions of this Court to the conclusive effect that only a legal practitioner whose name is on the roll of legal practitioners at the Supreme Court, is competent to sign legal processes. See: Okafor Vs Nweke (2007) All FWLR (Pt.368) 1016; (2007) 1 NWLR (Pt.1043) 521; SLB Consortium Ltd. Vs NNPC (2011) 9 NWLR (Pt.1252) 317; (2011) 4 SC 86; FBN Plc vs Maiwada (2013) 5 NWLR (Pt.1348) 444; SPDC vs Sam Royal Hotel Nig. Ltd. (2016) 8 NWLR (Pt.1514) 318, to name just a few.

In SLB Consortium Ltd. Vs NNPC (supra), His Lordship, Rhodes-Vivour, JSC, held, inter alia:

“What then is so important about the way counsel chooses to sign processes? Once it cannot be said who signed a process, it is incurably bad and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioners Act). All processes filed in Court are to be signed as follows:

First, the signature of counsel, which may be any contraption.

Secondly, the name of counsel clearly written.

Thirdly, who counsel represents.

Fourthly, name and address of legal firm.

In this case, there is signature of counsel but no name of counsel. A signature without a name is incurably bad.” (Underlining mine)

The notice of appeal in the instant appeal can be found at pages 160 – 163 of the record. At the top of page 163 there is a contraption above the name Emmanuel Esene Esq. The letters “pp” are handwritten beside the name Emmanuel Esene Esq. Beneath Emmanuel Esene Esq., is another name, Peace Ojemen (Miss). The next line states Emmanuel Esene & Co., followed by “Counsel to the Appellant” and the address of Emmanuel Esene & Co. The bone of contention is “who signed the process?” The contraption above Emmanuel Esene & Co. is indecipherable. One must therefore move to the next line to determine the owner of the signature and to ascertain that it belongs to a legal practitioner whose name is on the roll as required by the Legal Practitioners Act.

The letters “pp” when placed before a name on a document, are an abbreviation of the Latin term “per procurationem” or “per pro.” It is universally known to be used when signing a letter or document on someone else’s behalf. Black’s Law Dictionary, 8th Edition page 1177 defines “per procurationem”, “per pro” or “pp” to mean “By Proxy.” Osborne’s Concise Law Dictionary, 8th Edition at page 246 defines it to mean “as an agent”, “on behalf of another.”

“pp Emmanuel Esene Esq.” means the contraption or signature above that name belongs to an unidentified person who signed the document on Emmanuel Esene’s behalf. For the process to be competent, it must be shown that the person who appended his signature on behalf of Emmanuel Esene Esq. is himself a person who is entitled to practice as a legal practitioner in Nigeria and whose name is on the roll in compliance with Sections 2 (1) and 24 of the Legal Practitioners Act. There is no such indication on the process.

Learned counsel for the appellant has ingeniously argued that “pp” means Principal Partner. I say ingeniously because, if indeed that were the case, the words would have been written in full and would have appeared immediately beneath the name of the said principal partner. On the face of the process as it stands, the notice of appeal was signed by an unknown person on behalf of Emmanuel Esene Esq. It is incurably defective. In R.A. Oliyide & Sons Ltd. Vs Obafemi Awolowo University, Ile-Ife (2018) 8 NWLR (Pt.1622) 549; (2018) LPELR-43711 (SC) @ 30 – 31 D – F, this Court per Sanusi, JSC, held:

“It seems to me that the issue at hand relates to the non-signing of a process by a legal practitioner, which is purely a jurisdictional issue, because no appeal can properly be placed on an invalid or incompetent process. The respondent’s learned counsel’s stance is that the non-signing of the brief is merely a breach of the rules of Court, which can be waived as a mere irregularity. I do not share that view of his. This is because the Legal Practitioners Act provides that all processes filed in Court must be signed by a known and named legal practitioner as opposed to an unknown proxy who is obviously not a legal practitioner known to law.”

A notice of appeal is an originating process. It is the foundation/substratum of any appeal. Any defect therein deprives the Court of jurisdiction and vitiates the appeal. See: Madukolu vs Nkemdilim (1962) 2 NSCC 374; Nigerian Army Vs Samuel & Ors. (2013) 14 NWLR (Pt.1375) 466; (2013) LPELR-20931 (SC) @ 17 – 18 F – C; Uwazurike & Ors. Vs A.G. Federation (2007) LPELR-3448 (SC) @ 14 D – F; Ikuepenikan Vs The State (2015) 9 NWLR (Pt.1465) 518; (2015) LPELR-24611 @ 48 A- D.

The first ground of objection is resolved in the appellant’s favour. Having held that there is nothing to show that the person who signed the notice of appeal per pro Emmanuel Esene Esq. is an identifiable legal practitioner and that the notice is accordingly incompetent, the issue of affixing the unknown legal practitioner’s stamp and seal to the process in compliance with Rule 10 of the Rules of Professional Conduct for Legal Practitioners, becomes otiose.

The final ground of objection is the competence or otherwise of the grounds of appeal. While the respondent contends that all the grounds of appeal raise questions of mixed law and fact, for which leave is required pursuant to Section 233 (3) of the 1999 Constitution, as amended, learned counsel for the appellant asserts, relying on Section 233 (2) of the Constitution, that the grounds are grounds of law alone for which no leave is required.

Section 233 (2) (a) and (3) of the 1999 Constitution, as amended, provides:

233 (2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases –

(a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.

(3) Subject to the provisions of Subsection (2) of this section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.”

In the case of: Ogbechie Vs Onochie (1986) LPELR – 2278 (SC) @ 8 C – E, His Lordship, Eso, JSC, provided a guideline for determining whether a ground of appeal is one of law alone or of mixed law and fact, to wit:

“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”

In Chrome Air Services Ltd. & Ors. Vs Fidelity Bank (2017) LPELR-43470 (SC) @ 23 – 24, His Lordship, Nweze, JSC referred to an earlier decision of this Court in ACB Plc. Vs Obmiami Brick & Stone Nig. Ltd. (1993) LPELR – 206 (SC) @ 27 E – F, to wit:

“It is now generally accepted that where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed facts, it is a ground of law. Where, on the other hand, the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and fact. This is because in this latter case, it is a conclusion of law coupled with the exercise of discretion.”

See also: The State Vs Omoyele (2017) 1 NWLR (Pt.1547) 341; Global West Vessel Specialist Nig. Ltd. vs NNLG Ltd. & Anor. (2017) 1 – 2 SC (Pt. II) 39; (2017) LPELR-41987 (SC) @ 27 – 28 F – D; Fasuyi & Ors. Vs PDP & Ors. (2017) LPELR-43462 (SC) 32 B – D.

It is also trite that the mere labeling of a ground of appeal as a ground of law does not make it so. The Court must examine the grounds along with their particulars in order to make a proper determination of the issue. See: Nwadike & Ors. Vs Ibekwe & Ors. (1987) 12 SC 14; Brittania-U Nig. Ltd. vs Seplat Petroleum Devt. Co. Ltd. & Ors (2016) LPELR – 40007 (SC) @ 52 – 54 E – A; Briggs Vs C.L.O.R.S.N. & Ors. (2005) 4 SC 89; (2005) LPELR-805 (SC) @ 10 C- F.

The four grounds of appeal contained in the Notice of Appeal filed on 31/8/2015 are as follows:

Ground One

The lower Court erred in law when it held that the Respondent is a corporate subsidiary of the Nigerian National Petroleum Corporation which falls under Section 22 (1) of the NNPC Act 2004

Particulars of Error

The respondent failed to prove that he is a wholly owned subsidiary of the Nigerian National Petroleum Corporation.

Ground Two

The lower Court erred in law when they held that Section 12 (2) of the Nigerian National Petroleum Corporation Act applies to the Respondent and as such they are entitled to be issued a pre-action notice before instituting the suit against the respondent and failure to do so has made the appellant’s suit premature and liable to be struck out.

Particulars of Error

The respondent is a private limited liability company incorporated under Part A of the Companies and Allied Matters Act and not a statutory body as well as not a wholly owned subsidiary of the Nigerian National Petroleum Corporation as claimed by the respondent, without proving same by way of evidence.

Ground Three

The lower Court erred in law when he held that the appellant’s action with Suit No. FCT/HC/CV/160/2014 was struck out for lack of jurisdiction.

Particulars of Error

It is trite that one cannot put something on nothing and expect it to stand. The respondent did not adduce any material evidence to show or prove that he is a wholly owned subsidiary of the Nigerian National Petroleum Corporation for Section 12 (2) of the Nigerian National Petroleum Corporation Act to be applicable.

Ground Four

The lower Court erred in law when he held that the Nigerian National Petroleum Corporation is itself a corporation it (sic: its) subsidiary corporation is a subsidiary corporation and the use of the word wholly owned subsidiary in Section 22 (1) of the Nigerian National Petroleum Corporation Act is a misnomer and a mere tautology.

Particulars of Error

That in accordance to (sic) Section 22 (1) of the Nigerian National Petroleum Corporation Act, before the respondent can be a subsidiary of the NNPC it must be wholly owned. (Underlining Mine)

A careful perusal of the grounds of appeal and their particulars shows clearly that they raise issues of mixed law and facts, as the alleged error of law complained of is founded on disputed facts calling into question the correctness of the facts determined. The facts are in contention to the extent that the appellant is inviting the Court to determine whether the respondent established by evidence that it is a wholly owned subsidiary of NNPC to bring it within the purview of Section 22 (1) of the NNPC Act. Having failed to obtain the requisite leave of this Court or the Court below before filing the appeal, the notice of appeal filed in breach of Section 233 (3) of the 1999 Constitution, as amended, is incompetent, null and void. It is accordingly hereby struck out.

In light of my several findings above, I find merit in the preliminary objection raised by the respondent. It is hereby sustained. The appeal is hereby struck out for incompetence.

Costs of N1 million are awarded against the appellant in favour of the respondent.

SC.755/2015

All Purpose Shelters Ltd V. Dennis & Ors (2022) LLJR-SC

All Purpose Shelters Ltd V. Dennis & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C.

This is a motion on notice filed on the 11th day of November, 2020, brought pursuant to Order 2 Rules 28 and 29, Order 3 Rules 14 and 15 of the Supreme Court Rules and the inherent jurisdiction of this Court. In the application, the Appellant/applicant is seeking for the following orders:

An order striking out the 3rd and 425 others Respondent’s brief of argument filed 29th January, 2020 and the 1st and 279th others respondent’s brief of argument filed on the 29th day of January, 2020, and the 1st and 279th Respondents brief of argument filed on the 3rd day of March, 2020 for being an abuse of Court process of this Court.

Alternatively;

An order of this Court directing the 1st and 279th other Respondents and the 3rd and 425th other Respondents to retain one counsel in this appeal.

The application is supported by 18-paragraph affidavit sworn to by Chisom Laura Ikeudeoba, Esq legal practitioner in the law firm of J.S Okutepa SAN. Counsel for the Appellant/Applicant.

The grounds upon which the application is premised are as follows:

The 1st and 279th other Respondents and the 3rd and 425th other Respondents were part of the 1st -707th claimants before the trial Court who jointly sought and obtained the leave of the trial Court to file suit No. CV/440/2012/ Abah Dennis and 707th Ors. (suing for themselves and also representing all persons allocated with shops and /or open spaces by the Honourable Minister of the Federal Capital Territory and Federal Capital Development Authority and who are also disputing the imposition of additional money as purchase price for the said shops and/open spaces lying and situate in Wuye Ultra- Modern Market/ Wuye, Abuja) V. Honourable Minister Federal Capital Territory & 3 Ors.
The suit No. CV/440/2012/ Abah Dennis and 707th Ors. (suing for themselves and also representing all persons allocated with shops and/or open spaces by the Honourable Minister of the Federal Capital Territory and Federal Capital Development Authority and who are also disputing the imposition of additional money as purchases prices for the said shops and/open spaces lying and situate in Wuye Ultra-Modern Market, Wuye, Abuja) V. Honourable Minister Federal Capital Territory & 3 Ors, was filed in a representative capacity.
The trial Court delivered its judgment in suit No. CV/440/2012 on the 29th day of April 2015, in favour of the 1st-707th claimants in a representative capacity.
The Appellant highly dissatisfied with the decision of the high Court of the Federal Capital Territory delivered on the 29th April, 2015, in suit No. CV/440.2012, appealed to the Court below and the 1st- 707th respondents defended the appeal in a representative capacity.
The Court below, after hearing the appeal of the Appellant/ delivered its judgment on the 16/12/2016 wherein it dismissed the appeal of the Appellant for being an abuse of Court process without considering the merit of the appeal.
The Appellant being highly dissatisfied with the judgment of the Court below, appealed to this Hon Court via a notice and grounds of appeal filed on 23rd January, 2017 and filed the Appellants brief of Argument on 27th March , 2018.
The 1st and 279th other Respondents and the 3rd and 425th other Respondents who are part of the 1st -707th Respondents have elected to split themselves before this Honourable Court and to file two separate briefs of arguments for the 1st set of Respondents before this Honourable Court.
The 1st and 279th other Respondents and the 3rd and 425th other Respondents who are part of the 1st to -707th respondents that jointly sought and obtained leave of the trial Court to file the instant action in a representative capacity and maintained one counsel at the trial Court and at the Court below cannot split themselves and file two separate Respondent’s briefs of argument in this Honourable Court.
An appeal is the continuation of the case filed in the trial Court and since the 1st and 279th Respondents and the 3rd and 425th other Respondents cannot be allowed to file more than one written address at the trial Court, the 1st and 279th Respondents and the 3rd and 425th other Respondents cannot be allowed to file more than one brief of argument before this Honourable Court.

On the 2nd day of November, 2021 when the application was heard, learned Senior counsel for the applicant J.S Okutepa, SAN, referred to the application, the affidavit in support of the motion, exhibits and the written address filed by the applicant pursuant to the order of this Court made on the 2nd day of March, 2021. Learned Counsel also filed reply. In the written address filed in support of the application, learned senior Counsel for the Applicants submitted that the 1st -707th Respondents in this appeal filed an amended writ of summons and an amended statement of claim before the trial Court in which they jointly sought for and obtained the leave of the trial Court to file suit No. CV/440/2012, suing for themselves and representing all persons allocated with shops and/or spaces by the Honourable Minister of the Federal Capital Territory and Federal Capital Development Authority. Counsel submitted that suit No. CV/440/2012 was filed in a representative capacity in which the plaintiffs at the trial Court sued for themselves and also representing other occupants of the shops located in the market. Learned senior Counsel submitted that in both the trial Court and the lower Court, the 1st-707th Respondents retained one counsel, S.C Peters Esq who filed single process in defence of the interest of the 1st- 707th Respondents.

Learned Counsel submitted that ordinarily, the Respondents are entitled to retain separate counsel, but having filed one process in a representative capacity at the trial Court, they cannot and have no right to split themselves before this Court. Counsel further contended that allowing them to do so, will amount to an abuse of Court process, learned Counsel further submitted that the right to retain Counsel even though ordinarily available to a Respondent, becomes restrictive and exercisable within some bounds, that the right is also subject to other rights, he submitted that there must be sanity in the exercise by a party of its Constitutional right. Counsel cited and relied on the decisions in LADOJA V. AJIMOBI (2016) 10 NWLR (pt. 1519) 87 at 129. PDP V. PETERSIDE (2016) 7 NWLR (Pt. 1512) 574 at 584 and BUKOYE V. ADEYEMO (2017) NWLR (Pt. 1546) 173 AT 193 in support of his submissions. It was also the contention of learned Counsel that the submissions of the Respondents on the rights of the Respondents to retain Counsel of their choice cannot be right because if that is allowed it will encroach on other rights.

Learned Counsel further submitted that an appeal is a continuation of the case as constituted at the trial Court that since the 1st -707th Respondents could not have been allowed to use two or more counsel to file different processes for them at the trial Court, having filed a representative action, they cannot and have no right to file two or more briefs before this Court, he relied on PDP V. SYLVA (2017) 5 NWLR (pt. 1557) 74 at 93, OREDOYIN V, AROWOLO (1989)4 NWLR (pt. 174) 172 at 211 and ADEGOKE MOTORS LTD. V. ADESANYA (1989) 3 NWLR (pt. 109) 250.

Learned Counsel also submitted that there cannot be more than one dominus litis in a matter, and the dominus litis in this matter being Abah Dennis, whatever action is taken by him is final and binding, including but not limited to choice of counsel and legal argument in support of their joint interest. Counsel submitted that the 1st -707th Respondents instituted the action at the trial Court as one in Representative capacity. They also filed one brief of argument at the lower Court, but decided to file multiple briefs in this Court. Counsel contended that having filed one originating process at the trial and lower Courts in representative capacity as instructed by their dominus litis they are bound to continue in the same manner because that is the law, he said there cannot be two dominus litis in one action, and urged this Court to so hold, he referred to the decision of this Court in OKONJI & ORS V. NJOKANMA & ORS (1989) LPELR-2478 (SC), and RE: APEH & ORS (2017) LPELR-42035 (SC).

Learned Counsel then submitted that the daunting question in this application is whether a party who argued his case in a singular manner before the trial and lower Courts could be allowed to proliferate his case by filing more than one brief of argument in this Court, the answer as proffered by the learned Senior Counsel is in the negative because so doing will constitute an abuse of Court process. Learned counsel finally urge this Court to hold that the 1st -707th Respondents cannot split themselves before this Court, and grant the application as prayed.

In opposing the motion on behalf of the 1st and 279 other Respondents, Learned Senior Counsel A.O. Maduabuchi SAN said he filed a counter affidavit and written address on the 5th day of October, 2021. In the written address filed on behalf of the 1st and 279 other Respondents, learned senior Counsel submitted that the 1st to 707th Respondents who had been acting in a representative capacity had disagreement amongst themselves, and could not agree on the Counsel who will represent them. Counsel further submitted that the disagreement was affecting the flow of the matter and on the 11th December, 2018 this Court directed S.C Peters Esq to submit the list of the Respondents he was representing, and the remaining would be assumed to be represented by Solo Akunma SAN, learned Counsel submitted that it was in compliance with the directives that S.C Peters Esq submitted the list of 1st and 276 others as the Respondents he represents, while the rest of the Respondents will be represented by Akunma SAN.

Counsel further submitted that since the order has not been set aside, it remains extant and must be obeyed by both parties, learned counsel relied on the decision in LADOJA V. AJIMOBI (2016) 10 NWLR (pt.1519) 87 to support his contention. Counsel said nothing can be more irritating than relitigating an issue that had been effectively decided, he maintained that the issue had been laid to rest at the time this Court made the order directing S.C Peters to submit the list of the Respondents he represents, he finally urged that this application be dismissed.

Learned senior Counsel for the 3rd and 425 other Respondents, Chief Solo Akuma SAN, filed Counter Affidavit and written address on the 24th day of February, 2021 and 16th March, 2021 respectively.

In the written address, learned senior Counsel formulated a sole issue for determination on behalf of the 3rd and 425 other Respondents, the issue is as follows;

“whether the exercise of the right of 1st-707 respondents who have engage two distinct counsel to represent them and have filed two separate briefs of argument on their behalf constitute as abuse of Court process and has the appellant any right to determine the counsel to represent any set of respondents amongst 1st – 707th respondent in this appeal.”

Counsel submitted that the right to choose Counsel is solely that of a party in any legal proceedings, he cited and relied on the decision in FESTUS V. AFRICAN ACTION CONGRESS & ORS (2020) 4 NWLR (pt. 1713) Pg. 105, to argue that parties are entitled to counsel of their choice without interference from the Court or any other party, he further submitted that a litigant is always entitled to brief a Counsel of his choice to handle his case. Counsel said in deciding the case of FESTUS V. AFRICAN ACTION CONGRESS (Supra), the Court relied on its decision in PDP V. EZEONWUKA (2018) 3 NWLR (Pt. 1606) Pg. 187 at 255. Learned senior counsel further submitted that the first set of Respondents have the right to choose separate Counsel to represent them in this appeal, and having chosen to separate Counsel to represent them, they have not infringed upon any law or rules of this Court, he therefore urged this Court to so hold.

Learned senior counsel submitted that the cases of LADOJA V. AJIMOBI, PDP V. PETERSIDE, and BUKOYE V. ADEYEMI (Supra) relied on by the applicant in support of his submissions are not applicable in the instant application. Learned Counsel also contended that Abah Dennis is not the only dominus litis in the instant case as claimed by the applicant. The 1st-707th Respondents who are named parties representing all persons allocated with shops and open space are dominus litis and they are not bound by the choice of Counsel by Abah Dennis.

Learned Counsel finally submitted that the application is frivolous, misconceived and designed to truncate the expeditious hearing and determination of the appeal, he further submitted that the application is an abuse of process, he therefore urged this Court to hold that the application lacks merit and dismiss it.

RESOLUTION

The argument of the Applicant in this application is that, where a party initiates an action in representative capacity at the trial Court and briefs single Counsel to prosecute the action, the party cannot subsequently break and engage different counsel to handle the same action on appeal, the party must continue to act through the same single Counsel. The Respondents on the other hand contended that a party may split and engage different Counsel in the same action whenever the need for so doing arises.

By the provisions of Section 36 of the Constitution of Nigeria, 1999 (as amended) in the determination of his civil rights and obligations, a citizen has the fundamental right to a Counsel of his own choice. In MARCEL NNAKWE v. THE STATE (2013) LPELR-20941(SC) this Court held as follows:

“with reference to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, the law is well settled that every party to a case has an unfettered right of representation by counsel of his choice. See Nwambe v. The State (1995) 3 NWLR (Pt. 384) 358.”

See also; SEBASTIAN ADIGWE v. FEDERAL REPUBLIC OF NIGERIA (2015) LPELR-24694 (SC). It is the law, that a party in litigation has the right and freedom to engage Counsel of his Choice without interference or hindrance at any stage of the matter, this Court in ISIAKA & ORS V. OGUNDIMU & ORS (2006) LPELR-1552 (SC) per KUTIGI JSC (CJN) (of blessed memory) held as follows:

“A litigant is free to engage counsel of his choice at any time and may equally terminate such engagement at any time.”

From the foregoing therefore, it is well settled that a litigant is free and at liberty to change his counsel, and where parties agree to engage one Counsel and along the line some irreconcilable or other differences occur, any party that is not satisfied is at liberty to pull out of any prior arrangement and engage Counsel of his choice, a party may decide to change Counsel at any time for any reason or without reason at all, the Court cannot participate in the choice of Counsel for a litigant. A party desirous of changing Counsel can do so personally in Court by announcing it or through any counsel of his choice. The Court cannot intervene in any form under the guise of exercising its discretion, the entire decision is that of the party. The Court has no discretion to grant or refuse leave to a litigant to change his counsel. If such discretion were to exist, it would also imply that the Court could refuse such leave and that would be odious in the extreme, both to the litigant and the legal profession. May this day never come.

The right to represent a party in a matter before a Court of law involves the right to brief and instruct any counsel or a number of counsel a litigant may wish to engage, this Court cannot validly exercise any discretion to curtail this fundamental right as provided under Section 36 of the Constitution of the Federal Republic of Nigeria (1999) (as amended). In this application, what the applicant is requesting this Court to do, that is compelling some Respondents to retain a particular Counsel is in clear contravention of the Constitution and the right of the parties to engage Counsel of their choice.

This Court in its recent decision in FESTUS V. A.A.C & ORS – SC. (2020) 4 NWLR (Pt. 1713) 105 re-stated the settled position of the law, when the Court held as follows:

“Parties are entitled to counsel of their choice without interference from the Court or any other party. A party having exercised such right cannot be gauged or questioned for any reason. Thus the 1st respondent in the instant case having debriefed the firm of Tawo E. Tawo SAN & Co and appointed H. A Bello Esq to represent it in Court, had the right to do so and the appellant had no right to interfere with the choice of counsel representing the 1st respondent. PDP V. Ezeonwuka (2018) 3 NWLR (pt. 1606) 187 referred to.”

Finally, the position of this Court on this matter has always been the same, it has not changed and it will not be changed by this application, the position of this Court is therefore that the Appellant in this appeal has no right to question and or interfere with the choice of Counsel to represent the Respondents. It is proper to say that a party coming to Court with such an application must ensure that it is not founded on trifles. The application lacks merit and therefore deserves to be and is hereby dismissed. It is hereby ordered that, parties march to hearing of this appeal on the merit without delay.

Application is dismissed.

Parties shall bear their respective costs.

SC.1028/2016(R)

Aliyu V. Apc & Ors (2022) LLJR-SC

Aliyu V. Apc & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C.

This is an appeal against the judgment of the Court of appeal sitting in Makurdi delivered on the 15th day of December, 2021. The judgment of the Court affirmed the ruling delivered by the High Court of Justice Nasarawa State on the 8th day of October, 20211 wherein the trial Court struck out the action filed by the Plaintiff/Appellant for want of jurisdiction.

Just by way of summary of facts grounding this appeal, the Appellant commenced action against the 1st to 4th Respondents (as 1st- 4th Defendants) by originating summons challenging the primary elections conducted by the 1st Respondent on the 26th day of July, 2021 for the position of chairman Nasarawa Eggon Local Government of Nasarawa State. The Appellant felt aggrieved by the way the primaries were conducted because he satisfied all the requirements for participation in the primary elections to contest for the office of the Chairman Nasarawa Eggon Local Government but to his utter surprise and chagrin the Primary elections were conducted behind him through some manoeuvres and intrigues, he was side-lined, the primary elections produced the 3rd Respondent as the successful candidate of the 1st Respondent, the name of the 3rd Respondent was therefore submitted to the 4th Respondent as the successful candidate of the 1st Respondent.

The Plaintiff /Appellant took out originating summons on the 9th day of August, 2021 at the High Court of Justice, Nasarawa State, asking for some declarations and questions to be determined by the trial Court, the declarations and questions are therefore reproduced as follows:

A DECLARATION that the Primary Election organized and conducted by the 1st and 2nd Defendants in Nasarawa Eggon Local Government Council is null, void and of no effect whatsoever arising from an illegal structure of the party.
A DECLARATION that the 3rd Defendant is not validly nominated for Local Government General Elections scheduled for 6th October, 2021, as such any certificate issued to him by the 1st Defendants is null, invalid and of no effect whatsoever.

AN ORDER directing the 1st and 2nd Defendants to immediately withdraw the nomination of 3rd Defendant as candidate for Nasarawa Eggon L.G.C. in the proposed Local Government elections.

AN ORDER OF INJUNCTION restraining the 1st and 4th Defendant from dealing with, recognizing or continuing to recognize in any manner howsoever, acting on the name of the 3rd Defendant or holding out the 3rd Defendant as the candidate of the 1st Defendant for chairmanship of Nasarawa Eggon – Local Government Area for 6th October, 2021, Local Government, Elections.
AN ORDER restraining the 3rd Defendant from holding out or parading himself as the candidate of the 1st Defendant for Nasarawa Eggon Local Government Council for the Local Government Council General Elections scheduled for 6th October, 2021.
A DECLARATION that Caretaker Committees of Local Government Area and wards are not legally and democratically elected executives of the 1st Defendant, as such they cannot elect candidate for any election, therefore the exercise conducted by them is illegal, unconstitutional, null, void and has no effect whatsoever.
AND FOR SUCH FURTHER ORDER(s) as this Honorable Court may deem fit to make in the circumstance.

The Plaintiff then asked for the determination of the following three questions:

i. Whether having regard to the provision of Article 20(iv) (a) of the APC Constitution, the Caretaker Committee of the Local Government Area and wards constitute the electoral college of delegates democratically elected by members of the party for the purpose of nominating a candidate for an election.

ii. Whether there was at any time voting at the ward congresses to elect the members of the Electoral College to empowers them to participate at the nomination of candidate for election into the Local Government Council in compliance with Article 20(iv) (c & d).

iii. Whether by virtue of Article 20(iii) of the APC Constitution, the nomination of candidate for Local Government Council Elections can be done by consensus and not direct primary given the circumstance of the party at the moment.

At the trial, the 1st and 2nd Respondents filed notice of preliminary objection seeking to strike out the suit on four grounds. The grounds of objection at the trial were that, the Plaintiff had no locus standi to institute the action, that the suit was filed outside the 14 days period required, the action was therefore statute barred, that the plaintiff failed to include his National Identification Number in the originating summons thereby rendering the processes filed invalid, and that the Plaintiff had not exhausted the internal remedies for dispute resolution in line with the party Constitution. The 4th Respondent also filed notice of preliminary objection contending that there was no cause of action against it.

The matter was heard by the trial Court, the trial Court held that it had no jurisdiction to entertain the appeal, it was accordingly struck out. The Appellant became nettled by the decision of the trial Court and appealed to the lower Court, the Court of Appeal Makurdi Division. On the 15th day of December, 2021, the lower Court rendered a decision holding that it had no jurisdiction to entertain the appeal, the appeal was therefore accordingly struck out. The Appellant again became aggrieved and further appealed to this Court against the concurrent findings of the trial and lower Court. The appeal to this Court premised on three grounds of appeal was filed on the 22nd day of December, 2021.

The brief of argument of the Appellant was filed by learned Counsel M.M. Hirse, Esq., on the 25th day of January, 2022. In the Appellants brief of argument, learned Counsel nominated and argued three issues for determination, the issues are:

a. Whether the Court of Appeal was right in holding that it did not have the Jurisdiction to hear and determine an appeal challenging the primary election of the All Progressive Congress to the position of the Chairman of Nasarawa Eggon Local Government of Nasarawa State.

b. Whether having regards to the reliefs endorsed on the Originating Summons and the facts in the affidavit in support thereof, the Court of Appeal was right in striking out the Appeal against judgment of the trial Court on the ground that the Court of Appeal did not possess jurisdiction without hearing the parties and entering a decision on the Appeal before it.

c. Whether a dissatisfied contestant to a primary election can approach the Court for redress (Distilled from Ground 3).

The 1st and 2nd Respondents’ brief of argument was filed by learned Counsel Usman on the 8th day of February, 2022. In the brief of argument, Counsel argued the 1st and 2nd Respondents’ preliminary objection and adopted the issues submitted for determination by the Appellant as their issues for determination, I am sure it is needless reproducing the issues again, it is sufficient to mention that the 1st and 2nd Respondents adopted Appellants issues for determination in arguing this appeal.

Learned Counsel Nalaraba filed the 3rd Respondent’s brief of argument on the 8th day of February, 2022 and nominated sole issue for discourse in the determination of this appeal, the sole issue is also reproduced:

Whether the Court of Appeal was right in holding that it does not have jurisdiction to hear and determine appeal of the Appellant as filed before it (distilled from grounds 1 and 2).

Learned senior Counsel Hassan Liman SAN filed the 4th Respondent’s brief of argument on the 7th day of February, 2022, in the brief of argument Counsel incorporated argument on the preliminary objection of the 4th Respondent. The fulcrum of the 4th Respondent’s preliminary objection is that this Court lacks the requisite Jurisdiction to hear and determine this appeal. Learned Counsel also reacted to the substantive appeal by crafting sole issue for determination, the issue reads as follows:

Whether in view of the provision of Section 285 (14) (a) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No. 21) Act, 2017 and the settled position of the law, the Court of Appeal was right to have struck out the Appellant’s appeal for lack of jurisdiction.

From the processes filed in this appeal, it is clear that the 1st, 2nd and 4th Respondents filed preliminary objections to the hearing and determination of the appeal. The law is well settled on a chain of seemingly endless decisions of this Court that, where a preliminary objection to the hearing of an appeal is raised, the Court must deal with it before proceeding to hear and determine the substantive appeal if so doing is eventually found to be necessary, where preliminary objection to the hearing of an appeal is sustained, the necessity to hear and determine the substantive appeal becomes obviated, in other words, the appeal comes to the end, where the objection is held to be without merit it will be discountenanced, the Court will then proceed to the hearing and determination of the appeal on the merit. See the decision of this Court in UDENWA & ANOR V. UZODINMA & ANOR (2012) LPELR-22283 (SC), where my law lord and brother ARIWOOLA, JSC held as follows:

“Preliminary objection in a case is an objection that, if upheld would render further proceedings before the Court impossible or unnecessary. An objection to the Court’s jurisdiction is an example of a preliminary objection. See Black’s Law Dictionary 9th Edition page 1299. Generally, the Rules of this Court allow a respondent to rely on a preliminary objection to the hearing of the appeal. The purpose of this is to bring the appeal to an end having been discovered to be incompetent and or fundamentally defective. It will therefore be unnecessary to continue with an appeal once an objection is raised without disposing of same. In other words, the Court is expected to deal with and dispose of a preliminary objection once raised by a respondent before taking any further step in the appeal. See General Electric Company V. Harry Ayoade Akande & Ors (2010) 12 (Pt.2) SCM 96 and Lamidi Rabiu V. Tola Adebajo (2012) 6 SCM 201.”

In absolute obedience to the settled position of the law therefore, will tackle the preliminary objections first before delving into the substantive appeal if so doing turns out to be necessary.

THE PRELIMINARY OBJECTION

The 1st and 2nd Respondents filed notice of preliminary objection on the 8th day of February, 2022, in the notice of preliminary objection, the Respondents contend that:

“The Court lacks jurisdiction to entertain this appeal.
The suit was filed outside the required period of 14 days as provided by Section 285(9) of the 1999 Constitution (as amended) and same is statute barred.”

The 4th Respondent also gave notice of preliminary objection contending that the Court lacks the requisite jurisdiction to entertain the appeal.

The contention of the 1st and 2nd Respondents is that the suit was filed at the trial Court outside the 14 days provided for in Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999, 4th Alteration Act. Learned Counsel submitted that once a statute provides for the way a particular act shall be done, it must be done in such manner, that Section 285 (9) of the Constitution provides that every pre-election matter SHALL be filed not less than 14 days from the date of the occurrence of the event, decision or action complained of in the suit. Learned Counsel relied on the decisions in ACN V. INEC (2013) NWLR (Pt. 1370) Pg. 161, INEC V. ONOWAKPOKO (2018) 2 NWLR (Pt. 1602) pg. 134, YAKI V. BAGUDU (2015) 18 NWLR (Pt. 1491) pg. 288, and CBN V. HARRIS (2017) 11 NWLR (Pt. 1575) Pg. 541 to submit that the provisions of Section 285 (9) limited the rights of the Plaintiff to file any action once he did not meet up with the requirement of the 1999 Constitution (4th Alteration) Act.

Learned Counsel then submitted that suit no. NSD/LF55/2021 was filed on the 9th day of August, 2021 and the cause of action arose on the 26th day of July, 2021, that between 26th July, 2021 to 9th August, 2021 is 15 days, from this computation therefore Counsel said the suit was filed outside the 14 days limited by the provisions of Section 285 (9) of the Constitution of Nigeria 1999 (4th Alteration) Act, the action is therefore statute barred. Counsel therefore urged that the suit be struck out for want of jurisdiction.

The learned Counsel for the 4th Respondent referred to the decision of this Court in UDENWA & ANOR V. UZODINMA & ANOR (2012) LPELR-22283 (SC) to submit that appeals coming from the Court of appeal that border on Local Government Elections are not among the items listed under Section 233 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) he therefore urged this Court to hold that it lacks jurisdiction to hear and determine this appeal.

In the reply brief filed by the Appellant on the 11th day of February, 22, Counsel submitted that the Appellant has consistently, constantly and persistently challenged the conduct of the primary elections held by the All Progressive Congress at Nasarawa Eggon Local Government on the 26th of July, 2021, so doing Counsel said falls within the rights of the Appellant under Section 87 (9) of the Electoral Act. Learned Counsel urged this Court to discountenance the objections.

RESOLUTION

In resolving the objection to the competence of this appeal, it is necessary to examine the basis of striking out the suit at the trial Court and the lower Court, since the grievance of the Appellant is that he was unlawfully excluded from participation in the primary elections to contest for the office of the Chairman of Nasarawa Eggon Local Government, the Appellant in reaction to the contention of the Respondents as set out in the Appellants reply filed on the 26th of July, 2021, sought refuge under Section 87(9) of the Electoral Act. What does the section of the Electoral act say? Let me reproduce the provisions of Section 87 (9) of the Electoral act 2010 (as amended) the section provides as follows:

“87(9) Notwithstanding the provisions of this Act or Rules of a Political Party, an aspirant who complains that any 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 or the High Court of a State or FCT, for redress.”

From the above provision of the law, Appellant brought himself under the provisions of the Electoral Act and insisted that he came to the trial Court pursuant to the provisions of Section 87(9) of the Electoral Act to ventilate his grievance by so doing, he subjected his claim to the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria (4th Alteration) Act, thereby making his suit incompetent having been filed outside the 14 days provided by law.

A litigant cannot choose to impose himself on any provisions of the law, rather, it is the facts and circumstances of his case that will determine the law applicable to his case, this is in accord with the settled position of the law that parties cannot confer jurisdiction on the Court.

Again a point of want of jurisdiction being fundamental to the process of adjudication can be raised by the Court suo motu even where the parties fail to do. See IJEBU-ODE L. G. V. BALOGUN & CO LTD (1991) SC. In the instant case, from the onset, the Respondents consistently challenged the jurisdiction of the Court from the trial up to and including this Court, in effect therefore point of jurisdiction has been central to the determination of the case between the contending parties in this appeal.

Before coming to determination of the infantry of objections lined UP by the Respondents, let me find out why the trial Court held the view that Appellant’s action at the Court was incompetent. At page 331 of the records of appeal in the judgment of the trial Court, the learned trial Judge held as follows:

“The Court will not allow a political party to act arbitrarily or as it likes, a political party must obey its own constitution. A corollary of the foregoing is that Courts are confined by the four walls of the agreement entered into by parties. Once same is voluntary, the Courts cannot rewrite it for the parties.

The Plaintiff is a voluntary member of the APC and as such is bound by the Constitution of the APC. It is on record that the plaintiff did not exhaust the procedure laid down by the constitution of his party the APC in seeking redress for any received wrongdoings against him by the party. Jurisdiction is not conferred on Courts by ingenious arguments or semantics. It is either Court has jurisdiction or not.

From the originating summons of the plaintiff before me, and orders he seeks from Court, can be grantable, only if I have the jurisdiction to adjudicate. The plaintiff not having exhausted the procedure laid down by the constitution of his party the APC robs me of the jurisdiction to entertain the main suit. The Plaintiff should seek redress under his political party constitution, and if that fails, then he can approach the Court. But for now, I decline jurisdiction and refuse the prayers of the Plaintiff, the suit is hereby struck out.”

The trial Court held the view that since the Plaintiff Appellant failed to exhaust the internal dispute resolution mechanism of his political party, his action was adjudged incompetent having failed to satisfy condition precedent to commence an action in Court. The Appellant became aggrieved by the decision of the trial Court and therefore rushed to the lower Court at page 416 of the records of appeal containing the judgment of the lower Court, the Court held as follows:

“Similar issues as in contention here in this appeal had cropped up before the Court for determination and upon consideration of Sections 240, 241, 242 and 243 of the 1999 Constitution (As Amended); it was held beyond any iota of doubt that this Court is not endowed with Appellate jurisdiction to entertain Appeals bothering on decisions of the lower Court on the Election of Chairman, and/or Councilors of Local Governments… the Apex Court held that there is no such right of appeal on decisions bothering on Local Government Elections from a Court to the Court of Appeal. By virtue of Section 285(14) (a).”

Further in the judgment of the lower Court at page 4171, the lower Court again held as follows and I quote:

“our jurisdiction is limited to pre-election matters regulated by the Electoral Act or any Act of the National Assembly as the Local Government Electoral Law of Nasarawa State or any other State except that of the Federal Capital Territory cannot confer jurisdiction on this Court. See the case of Chief (Mrs.). Olufunke Victoria Ehuwa vs. Ondo State Independent Electoral Commissioner & Ors. (2006) 10 NWLR (Pt.1012) 544 at 576 para, G; where the Legal Sage and Emeritus Law Lord of the Apex Court Onnoghen, JSC (later CJN) at pages 589 para. H to 591 para. A; aptly posited on the vexed issue of the jurisdiction of the Court of Appeal in appeal from the High Court on Local Government Elections thus: “It is settled law that jurisdiction is creation of statute or that jurisdiction is always donated by the Constitution or Statute and is never inferred or implied. Looking closely at the relevant constitutional provisions; I have no hesitation in holding that no Section of the 1999 Constitution expressly conferred on the Court of appeal jurisdiction to hear Appeals Court of from appeals from the High Court emanating from decisions of that Court on appeal from Local Government Tribunals …”

Both Courts clearly distanced themselves from the case of the Appellant, while the trial Court was of the view that the Plaintiff/Appellant was hasty in packaging his claim to the Court having omitted to address condition precedent, the lower Court held very clearly that it had no jurisdiction to hear and determine the appeal.

It is very clear that jurisdiction is donated to this Court and all other Courts by statutes, why must the Court deliberately open flood gate to endless frivolous litigations? Does the Constitution talk about Local Government elections? Does the Electoral Act talk about Local Government elections? To address this issue in support of the position taken by the lower Court, I must embark on navigation into the Electoral Act to unveil where the Appellant thought he could find solace in clothing himself with the right to approach the Court of Appeal in his bid to contest for the office of Chairman in a Local Government.

I will refer to part VI of the Electoral Act in particular Sections 103 (1) of the Electoral Act which provides for election into Local Governments as follows:

“103(1) The conduct of elections into the offices of Chairman, Vice-Chairman and a member of an Area Council and the recall of a member of an Area Council shall be under the direction and supervision of the Commission in accordance with this Act.

(2) The register of voters compiled and the polling units established by the Commission and other regulations, guidelines, rules or manual issued or made by the Commission shall be used for elections into the Area Council or recall of a member.”

From the provisions of Section 103 of the Act, it is very clear to me that the case of the Plaintiff/Appellant is wholly and exclusively regulated by the Nasarawa State Electoral Law, the National Electoral Commission or the Electoral Act have no place in the election, the elections contemplated by the Electoral Act, are elections into local area Councils as defined under Section 156 of the Electoral Act. Section 156 of the Act defines area Councils as:

“Area Council” means Area Councils recognized and existing by virtue of Section 3 (6) of the Constitution and as set out in Part II of the First Schedule thereof and any additional Area Council provided by an Act of the National Assembly in accordance with Section 8 (5) of the Constitution.”

Section 3(6) of the Constitution provides for 778 Local Governments and six area Councils as set out in the I and II Schedules to the Constitution of the Federal Republic of Nigeria (1999) (as amended), the Appellant in the instant appeal falls within the 778 Local Governments, (Nasarawa Eggon Local Government) he does not come within the schedule to the Constitution where the Electoral Act applies, in other words, he does not belong to a local area council. For the avoidance of doubt, the II schedule to the Constitution where Area Councils are provided is also reproduced as follows:

FEDERAL CAPITAL TERRITORY, ABUJA

Area Councils

Area Council Headquarters

Abaji Abaji

Abuja Municipal Garki

Bwari Bwari

Gwagwalada Gwagwalada

Kuje Kuje

Kwali Kwali

From the provisions of Section 103 of the Electoral Act, it is very clear to me that elections into Local Government offices conducted under State Laws cannot find their way to the Court of Appeal or Supreme Court under any guise, this is therefore so as rightly found by the lower Court. Politicians operating under the State Electoral laws must begin and end their squabbles and skirmishes within the State, such wrangling must not extend to this Court. The Appellant has no business whatsoever taking his grievance before the lower Court. It is necessary to sound a note of counsel to politicians to learn to respect their Constitution so doing will enrich internal democracy and promote the culture of voluntary compliance, not every irritating claim is deserving of judicial time and attention. Politicians must begin to have faith in their own internal dispute resolution mechanism, they must graduate into managing their internal domestic affairs without running for judicial intervention at all times.

I must just go by the settled position of the law, that this Court cannot exercise jurisdiction once the trial Court or the lower Court is without jurisdiction. An Appellate Court can only exercise its appellate jurisdiction to correct errors of the lower Court. Having decided that the lower Court had no jurisdiction to tinker with the decision of the trial Court, it follows automatically therefore that this Court has no jurisdiction of its own to exercise. See AKINBOBOLA V. PLISSON FISKO NIG LTD & 2 ORS (1991) 1 NWLR (Pt. 167) 270 AT 285.

The Jurisdiction of the lower Court as rightly found by the Court is limited to matters regulated by the Electoral Act or any Act of the National Assembly. The Local Government Electoral Law of Nasarawa State or any other State except that of the Federal Capital Territory as it relates to area Councils cannot confer jurisdiction on the lower Court or this Court.

On the whole therefore, the preliminary objection is meritorious and is accordingly sustained, this Court has no jurisdiction to entertain Appellant’s appeal, it is therefore struck out.

Parties shall bear their respective costs.

SC.CV/24/2022