Matthew Okechukwu Enekwe V. International Merchant Bank Of Nigeria Ltd. & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

The appellant is the plaintiff. He is the registered owner of plot No.3, Julius Bala Crescent, Legislators Quarters, Jos. The Certificate of Occupancy bears No. BP 3785. The appellant is also the Chairman and Managing Director of Crystal Star Associates and Company Limited.

The plot was mortgaged to the 1st respondent as collateral for a loan advanced to Crystal Star Associates and Company Limited. Between 1987 and 1990 the 1st respondent, the mortgagee, made several attempts to realise their security. The first attempt was made between June and July 1987. The property was advertised for public auction because of the default on the part of the appellant to redeem the mortgage.

The 1st respondent decided to sell the property. Appellant quickly ran to court to stop the sale. That was in suit No. PLD/J 197/87. The suit was assigned to Soluade, J. It was dismissed for want of diligent prosecution.

On 16th February, 1988 the appellant filed two motions in suit No. PLD/J197M2/88. The first one was on notice for an injunction against 1st respondent from selling the property. The second one was ex parte for an interim injunction against 1st respondent from selling the property. The two motions came before Uloko, C.J., although the suit pending before Soluade, J., was neither reassigned nor withdrawn. On 23rd February, 1988, Uloko, C.J., granted the interim injunction ex parte. He made an order restraining the 1st respondent from selling the property. The Chief Judge did not give a date for the hearing of the motion on notice. And so, it was a one way affair, the affair of the appellant as the 1st respondent was shut out of the litigation. And so was it; badly so.

There seems to be a general agreement on the above facts although there could be infinitesimal areas of disagreement. There is, however, a very loud area of disagreement. Let me state it quickly. It is the case of the appellant that while the ex parte order of Uloko, C.J., was valid and subsisting, the 1st respondent sold the properly to the 3rd respondent who in turn resold it to the 2nd respondent. The 1st respondent has a different version of the matter. It is this, on 7th March, 1988, the motion No. PLD/J197M5/87 was struck out for want of diligent prosecution. Similarly, on 8th March 1988, the Court of Appeal dismissed the motion No. CA/J18M/88 also filed by the appellant to restrain the 1st respondent from selling the property pending on a purported appeal filed before the Court of Appeal as same was abandoned. With this development, 1st respondent sold the property to 3rd respondent who in turn sold it to the 2nd respondent on 7th September, 1989 when it appeared that “all the flurry of actions instituted by the appellant had abated.” In other words, the case of the 1st respondent is that there was no subsisting or pending order when the property was sold. And so they parted ways, materially too.

Aggrieved by the sale, the appellant filed an action. He asked for two declaratory reliefs as follows:

“(1) A declaration that the 1st defendant herein has no interest whatsoever in the property for the time being.

(2) A declaration that the purported sale of the property of the 1st defendant to the 2nd and 3rd defendants is/are unlawful, null and void and of no effect whatsoever.”

The 1st respondent counter-claimed for the sum of N102,109.5 being outstanding balance on the balance of Crystal Star Associates and Company Limited. The 2nd respondent counter-claimed for possession of the property.

The High Court dismissed the claim of the appellant and struck out the counter-claims and held that the suit was an abuse of the court process. On appeal, the Court of Appeal dismissed the appeal and cross-appeal.

The appellant has come to this court. Brief were filed and duly exchanged. The appellant formulated three issues for determination:-

“1. Whether the sale of the appellant’s property was valid during the pendency of a restraining order.

2. Whether the Court of Appeal was right in raising new (sic) suo motu.
3. Whether the Court of Appeal was right in dismissing the appeal.”

The respondents also formulated three issues for determination:-

“a. Whether going by the facts and law applicable in this case, whether the doctrine of ‘lis pendens’ is applicable.

b. Whether the reliefs sought by the appellant at the lower court were not declaratory in nature and whether the Court of Appeal was wrong in applying the principles of equity when it dismissed appellant’s case.

c. Whether the title of bona fide purchaser can be nullified merely on the fact that the sale was made during the pendency of a restraining order.”

I am in some difficulty to understand Issue No.2 in appellant’s brief. It appears to me that there is some leakage in the sentence between the words “new” and “suo”. I do not know what that word is. Could it be “issue” That is likely to be the word. I lack the legal capacity to block the leakage with the word as I cannot speculate, as a Judge. I do not know what to do. I am helpless. Let me stop here hoping that my speculation, though a foul to rules of procedure, is correct. Fortunately or unfortunately, there is no Court beyond this to blow the whistle and award appropriate penalty.

Learned Counsel for the appellant Mr. Zik Obi, submitted on issue No.1 that the doctrine of lis pendens applies in the case as the 1st respondent sold the property during the pendency of the motion. He cited Osagie v. Oyeyinka (1987) 3 NWLR (Pt.59) 144; Bamgboye v. Olusoga (1996) 4 NWLR (Pt.444) 520; Ebueku v. Amola (1988) 2 NWLR (Pt.75) 128; Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561) 339 at 356-357; Ajuwon v. Akanni (1993) 9 NWLR (Pt.316) 182; Barclays Bank Nigeria Ltd. v. Alhaji Ashiru (1978) 6-7 SC. 99; Ogundaini v. Araba (1978) 6-7 SC. 55; Ikeanyi v. ACB Ltd. (1991) 7 NWLR (Pt.205) 626 and Combined Trade Ltd. v. ASTB Ltd. (1995) 6 NWLR (Pt.404) 709.

Taking issues 2 and 3 together, learned counsel submitted that a court of law can only adjudicate on issues raised or apparent in the pleadings of the parties or in their notice of appeal. He cited Kolawole v. Alberto (1989) 1 NWLR (Pt.98) 382; Okonji v. Njokanma (1991) 7 NWLR (Pt.202) 131. Also citing Lewis and Peat (Nig.) Ltd. v. Akhimien (1976) 7 SC. 157; Overseas Construction Company Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt.13) 407; George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71: (1963) 1 SCNLR 117 and Emegokwue v. Okadigbo (1973) 4 SC. 113, learned counsel submitted that the right sought was dubious and transitory, was never an issue before the court and none of the respondents raised the issue.

Learned Counsel pointed out that issues like malice, the origin of the right sought whether dubious or otherwise and the substantiality of the relief were never issues before the Court of Appeal. He reminded the Court that the relief claimed at the trial court is for two declarations in respect of the property. Learned Counsel attacked the dictum of the Court of Appeal to the effect that “his present appeal is so infinitesimally insubstantial, tenuous and limited duration that one would wonder if the appellant had not been pursuing the course maliciously. To Learned Counsel, the dictum is a total misconception of the appeal and the relief sought from the Court of Appeal. He also attacked the dictum of the Court of Appeal to the effect that “a declaratory relief is discretionary and the court must always exercise the greatest caution when called upon to make declaratory orders.” He particularly attacked the use of the expressions “dubious and transitory”, on the ground that the words never arose for determination. He accused the Court of Appeal of making a case which the parties by their pleadings did not make. Citing Aermacchi v. AIC Ltd. (1986) 2 NWLR (Pt.23) 443; Lewis and Peat (Nig.) Ltd. v. Akhimien (supra) and Overseas Construction Ltd. v. Creek Ent. Ltd. (1985) 3 NWLR (Pt.13) 407, learned counsel submitted that whether the right sought was dubious and transitory was never an issue before the court and none of the respondents raised it.

Learned counsel contended that as the Court of Appeal disagreed with the learned trial Judge that the appellant did not abuse the process of the court, it ought to have allowed Ground 3 and set aside the sale of the appellant’s property by invoking section 16 of the Court of Appeal Act and Order 3 rule 23 of the Court of Appeal Rules, 1981. He urged the court to allow the appeal.

Learned counsel for the respondents, Mr. Bankole Falode, submitted on issue No.1 that the ex parte order made by Uloko, C.J., was not pending at the time the property was sold to the 2nd and 3rd respondents on 9th July, 1989. Even if the suit was pending at the time the sale was made, Learned Counsel submitted that the suit under which the order was made did not qualify or entitle the appellant to the defence of lis pendens. He enumerated five conditions at page 4 of the respondents” brief when the doctrine of lis pendens can apply. Citing Ikeanyi v. ACB Ltd. (1991) 7 NWLR (Pt.205) 626, learned Counsel submitted that all the five conditions must co-exist for the doctrine to apply.

Learned Counsel contended that the doctrine does not admit of spurious claim or litigation which is merely fabricated and ostensibly to prevent or suspend the legal right of an opponent, particularly in a claim which is dubious and invented to prevent the realisation of the loan granted the appellant by the 1st respondent. Citing Barclays Bank of Nigeria Ltd. v. Ashiru (1978) 6-7 SC. 99, counsel submitted that the doctrine of lis pendens cannot be applied to a bogus suit. He also submitted that the relief of declaration sought by the appellant in the suit does not qualify to grant the application of the doctrine of lis pendens because the suit was not an action as to dispute over the property.

On issue No.2, learned counsel submitted that as the reliefs sought by the appellant were declaratory in nature, the Court of Appeal was right in applying the principles of equity in dismissing the appeal of the appellant. He cited Barclays Bank of Nigeria Limited v. Ashiru (1978) 6-7 SC. 99; Bello v. Eweka (1981) 1 SC. 101 and Fasesin v. Oyerinde (1997) 11 NWLR (Pt.530) 552. Learned counsel unnecessarily repeated his arguments on this issue, almost to an annoying point; repeating the principles of equity required in a declaratory relief. I got thoroughly fed up in his arguments on the issue.

On issue No.3, learned counsel submitted that the title of a bona fide purchaser cannot be nullified merely on the fact that the sale was made during the pendency of a restraining order. He argued that as the 2nd and 3rd respondents paid for the property and their actions were not fraudulent but bona fide, both equity and law are in their favour. He urged the court to dismiss the appeal.

Let me take the cross-appeal. The following two issues are formulated for determination:

“1. Whether or not the dismissal of the action on 15/12/87 was a final judgment in which case there was no need for leave of Court of Appeal.

2. Whether the ex-parte interim order of injunction granted on 23rd February, 1998 was subsisting as at the time the property was sold to 2nd and 3rd cross-appellants on 7th September, 1989.”

The cross-respondent formulated the following issue for determination:

“Whether or not the sale of the appellant’s property on the 7/9/89 was carried out during the pendency of ex parte order made on the 23/2/88 notwithstanding the dismissal of Suit No. PLD/11/97/87.”

Learned counsel for the cross-appellant, Mr. Bankole Falade, argued the two issues together. He submitted that the dismissal of the action on 15th December, 1987 was not a final order but an interlocutory order. He cited Solomon v. Warner (1981) 1 QB 734; Blakey v. Latham (1989) 43 Ch. D 23; Afuwape v. Shodipe (1957) SCNLR 265 and rules of the High Court of Plateau State. Being an interlocutory order, before the appellant/cross-respondent could validly appeal against the order, he needed to seek leave of the High Court by virtue of section 221(1) of the 1979 Constitution of the Federal Republic of Nigeria, Counsel argued.

He submitted that as the appeal in interlocutory judgment was not filed within fourteen days but was filed after sixty-days, the appeal was incompetent. He cited Alaye of Effon v. Fasani (1958) SCNLR 171; Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924 and Macfoy v. UAC (1961) 3 All ER 1169; (1962) AC 152.

Although the impression is given in the brief that issues 1 and 2 are argued together, learned counsel only argued Issue 1. He did not take issue 2. Learned counsel for the cross-appellant raised a preliminary objection in his brief. The objection is on grounds 1 and 2 of the grounds of appeal and issue 1 of the cross-respondent’s brief. He relied on Order 8 rule 2(2) and (4) of the Supreme Court Rules, 1985 as amended and the following cases: Shanu Ltd. v. Afribank Nigeria Plc. (2002) 17 NWLR (Pt.795) 185 at 216; Akimvale v. BON (2001) 4 NWLR (Pt.704) 448 at 455; SO Mai Sonka Co. (Nig.) Ltd. v. Adzege (2001) 9 NWLR (Pt.718) 312 at 320; Orakosim v. Menkiti (2001) 9 NWLR (pt.719) 529 at 539; Mbakwe v. RMS Africa (2001) 4 NWLR (Pt.704) 575; Chime v. Chime (2001) 3 NWLR (Pt.701) 527 at 550; Adeniran v. Alao (2001) 18 NWLR (Pt.745) 361 at 381: Bereyin v. Gbobo (1989) 1 NWLR (Pt.97) 372 and FBN v. Njoku (1995) 3 NWLR (Pt.84) 457 at 474-475.

Taking the only issue for determination, learned counsel argued that since the two courts below agreed that the property of the appellant was sold while the ex parte order was in force, this court should not interfere with the concurrent findings of the courts, as they are not perverse. He cited Texaco Overseas (Nig.) Unlimited v. Pedmar (Nig.) Limited (2002) 13 NWLR (Pt.785) 526 at 545 and Egesimba v. Onuzuruike (2002) 15 NWLR (Pt.791) 466 at 508. He urged the Court to resolve the issue against the cross-appellant.

I do not think there is any argument or there should be any argument that the sale of the property was made when the ex parte order of interim injunction was subsisting. It is clear from the facts of the case that Uloko, C.J., made the ex parte order of interim injunction on 23rd February, 1988 and the sale was carried out on 7th September, 1989. Accordingly, the learned trial Judge, Azaki, J., was correct when he said at page 54 of the record:

“From the materials before me it is obvious that the sale was carried out while the interim injunction was still subsisting.”

The Court of Appeal held the same view when that court said at page 129 of the record:

‘The lower Court was therefore correct when it held that the interim ex parte order was still subsisting when the sale of appellant’s property was carried out.”

I do realise that both parties have formulated issues that will serve their purpose. While this should be so, a court of law, the mediator so to say, has a duty to examine the facts properly and take issues that will resolve the matter before it once and for all. I see that the appellant, with the greatest respect, has cunningly phrased his issues 1 and 2 to achieve a technical purpose but this Court has moved beyond the terrain of technicalities to the domain of doing substantial justice. After all, the terminal aim and result of any legal system is justice personified and wearing a human face. And so when the appellant formulated the first issue on the validity of the sale of the property during the subsistence of the restraining order, and argued it without considering the peculiar circumstances of the case in its factual milieu, I sensed some trick. I will, however, not go into the trick but rather take the issue along with Issue 1 of the respondents brief which addresses specifically and squarely, the relief sought by the appellant in this matter.

The crux of the matter centres on the doctrine of lis pendens. I describe the doctrine as the crux of this appeal because after the appellant has chased the shadow in Issue 1 in his brief, one will finally arrive at the substance in Issue 1 of the respondents brief. And so, why not chase or pursue the substance rather than the shadow A shadow is more like a mirage to the eyes and a substance the material; the real thing. Chasing or pursuing a shadow looks so much like a caricature and caricatures are not for the court but they are for the streets and the market place; but realities are. Courts of law do not therefore chase or pursue shadows; they chase or pursue the material or real thing in the litigation. They look at the res and give decision on it. And that is what I will do here, the Judge that I am. I will therefore take the first issues formulated by the parties together. By that, I will finally end up with the substance, my ultimate goal.

And that takes me to the examination of whether the doctrine of lis pendens applies in this case. The expression is made up of two Latin words. The first is lis. The second is pendens. The word lis means a piece of litigation, a controversy. The word pendens conveys the connotation of pending. The two words put and read together generally mean a pending law suit. The expression is a useful latinism that has given its name to a notice required in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit must be subject to the outcome of the litigation. Traditionally, this notice was called the notice of lis pendens, but 20th century American Lawyers have shortened the phrase to merely lis pendens. See Bryan Garner, A Dictionary of Modem Legal Usage, Second Edition, page 350. This reflects and confirms the traditional racing colloquial language of the Americas and the Americans.

The doctrine which is embedded in the common law gives notice to persons by way of warning that a particular property is the res of a litigation and that a person who acquires any interest in it must know well ahead that the interest will be subject to the decision of the court on the property. This reminds me of the fuller Latin expression, pendent elite nihil innovetur, which means, during litigation nothing new should be introduced. A person who buys real property in the course and pendency of a litigation has bought litigation for himself and should be prepared to face the litigation. In other words, the fortunes or gains of persons in respect of the property will be dictated or determined by the result or outcome of the litigation. Such is the strong caveat placed on the property. Although the doctrine is not the same as caveat emptor in strict legal content, it has some loose or vague affinity with it, as it relates to a person buying or purchasing a property in a market overt.

Nigeria, as a common law country, applies the doctrine in appropriate cases. Is this an appropriate case for the application of the doctrine That is the question. The case law will answer the question. In Barclays Bank of Nigeria Ltd. v. Alhaji Ashiru (1978) 6-7 SC. 99, this court said at page 128:

“… We think that it should be mentioned that the doctrine of lis pendens does not apply to every suit. It applies to a suit in which the object is to recover or assert title to a specific property; the property however, must be real property for the doctrine has no application to personal property.”

In order for the doctrine of lis pendens to apply, the party relying on it must prove the following:

1. The object of the suit must be to recover or assert title to specific property.
2. The property must be real property.
3. At the time of the sale of the property the suit in question was pending.

All the above conditions must exist in the case. In other words, a matter based on the doctrine of lis pendens will fail if any of the conditions is not satisfied. See generally Barclays Bank of Nigeria Ltd. v. Alhaji Ashiru, supra; Ogunsola v. National Insurance Corporation of Nigeria (1991) 4 NWLR (Pt.188) 762; Chief Ikeanyi v. African Continental Bank Ltd. (1991) 7 NWLR (Pt.205) 626; Chief Nsirim v. Nsirim (1995) 9 NWLR (Pt.418) 144 and Dr. Alakija v. Alhaji Abdulai (1998) 6 NWLR (Pt.552) 1.

The appellant, as plaintiff, asked for two declaratory reliefs. The first one is that the 1st defendant has no interest in the property. The second one is that the purported sale of the property to the 2nd and 3rd defendants is unlawful, null and void and of no effect whatsoever. Can it be said that the reliefs of declaration have the objective of recovering or asserting title to Plot No.3 Julius Bala Crescent, Jos I think not.

A declaratory relief, as the name clearly implies, is declaratory of a named matter or thing or situation. A declaratory relief, in the con of the appellant’s action, ends at the declaration by the court. It does not go further to tie the property to the ownership of the plaintiff. That is not the case of the appellant and the court will not go beyond the relief to order title or order recovery of the property. That will be giving the appellant what he did not claim. The law says I cannot do that. And so I bow to the law.

On declaratory reliefs, the Court of Appeal said at page 133:

“In any case, the appellant had sought from the lower court reliefs which are declaratory in nature. A declaratory relief is discretionary and the court must always exercise the greatest caution when called upon to make declaratory orders.”

In the light of the reliefs sought by the appellant, I expected the Court of Appeal to take the issue of declaratory relief in the con of lis pendens. That should have made more meaning to the matter rather than exploring the discretionary nature of declaratory relief. In whatever way one looks at the matter, a declaratory relief cannot justify the application or applicability of the doctrine of lis pendens, and I so hold. This is because property will not pass to the plaintiff.

I now go to Issue No.2. I do hope I am right in adding the word “new” and “suo”. And that gives me the fuller expression of “raising new issue suo motu”. It is the position of the law that an appellate court is bound by the record of appeal. It cannot go outside the record and raise issue suo motu. If the court raises an issue suo motu, parties must be invited to address the court on the issue. See Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314; Usman v. Garke (1999) 1 NWLR (Pt.587) 466; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt.684) 298; Araka v. Ejeagwu (2000) 15 NWLR (Pt.692) 684; Alli v. Alesinloye (2000) 6 NWLR (Pt.660) 177.

On issue No.2, the appellant relied on what the Court of Appeal said at pages 132 and 133 of the record:

“The opinion I hold is that the relief to be obtained by the appellant through his present appeal is so infinitesimally insubstantial tenuous and of limited duration that one would wonder if the appellant had not been pursuing the course maliciously… In the instant case, the original of the right which the appellant sought a declaratory order upon is dubious and transitory in nature.”

Learned counsel heavily descended on the expressions: “infinitesimally insubstantial tenuous, maliciously dubious and transitory in nature.” To learned counsel, the expressions are tantamount to raising new issues suo motu by the Court of Appeal. While I agree that counsel is free and at liberty to attack dictum or dicta in a judgment, he has a duty to read the entire judgment very carefully before he embarks on a tirade on words used by the Judge.

A Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu. A Judge can only be accused of raising issue suo motu if the issue was never raised by any of the parties in the litigation. A Judge cannot be accused of raising issue suo motu if the issue was raised by both parties or by any of the parties in the proceedings. In other words, the Court of Appeal cannot be accused of raising issue suo motu if the issue was canvassed at the trial or on appeal.

Learned Counsel in his attack submitted that the word, “malice”, was never raised by any of the parties, so also the substantiality of the order setting aside the sale was erroneously labelled “of limited duration”. He also submitted that “the right sought was dubious and transitory” was never an issue before the court and none of the respondents raised the issue.

With the greatest respect to Counsel, I do not see anything wrong with the expressions used by the Court of Appeal as they reflect the position the court took in its assessment of the evidence before the trial Court. The court could be wrong. The court could be right. Both are different matters. For our purpose, appellate court have very wide powers in the evaluation of trial evidence and let no counsel reduce the powers in the guise of introducing matters suo motu when that is not true. There was nothing of the son in the judgment of the court. The issue of “malice, infinitesimally insubstantial, dubious and transitory” are the Judge’s opinion based on his evaluation of the evidence before the court. And Judges are entitled in our law to hold opinions. Why deny them Accordingly, the Judge should be spared the sledge-hammer of the appellant. He has not done anything wrong.

Judges have no forum to defend themselves in the judicial process for positions they take in their judgments. They cannot speak one more word outside their judgments in defence of the positions they have taken. Let parties be slow in pouring venom on them. It is a serious attack on a Judge to say that he introduced in the case, new matters which were not before the court. So much is involved as so much could be read into or out of the allegation. I will stop here, hoping that counsel will have some sympathy for Judges, their partners in the smooth and successful administration of justice. It is only when Judges and Counsel are in some form of “romance” that their joint partnership in the crusade for building the best justice system will be achieved in our legal system. Issue No.2 has not the slightest merit. I do not want to say it is bogus but I can say that it fails.

And that takes me to issue No.3, which is dismissing the appeal. I am in some difficulty to appreciate the need for this issue, particularly when issue No.2 in the Court of Appeal is not before this court. The two issues before the Court of Appeal are as follows:

“(1) Whether the sale or the purported sale of the appellant’s property by the 1st respondent was valid and effective in view of the interim injunction granted on the 23/2/88.

(2) Whether the applicant’s claim is an abuse of court process.”

I think I have taken issue 1 above in this judgment. It is issue 2 that I am yet to take.

Learned counsel for the appellant argued that the Court of Appeal disagreed with the trial court on the issue of abuse of the process of the court. He called in aid the judgment of the court at pages 131 and 132 of the record:

“Looked out from the angle, it is arguable that the appellant had not set out to abuse the process of court.”

Is it correct for learned counsel to come to a dogmatic conclusion that the above dictum is to the effect that the Court of Appeal held the view that there was no abuse of the process of Court With respect, I do not agree with learned counsel. What the Court of Appeal said is that the point is arguable and an arguable point does not necessarily mean, in the con, that there was no abuse of the process of court. And this can be gathered from the arguments that the court gave thereafter from page 132 of the record. I must concede that the Court, with respect, did not come up stably or dogmatically on the issue, as it was in and out on the matter. The final order dismissing the appeal says it all. In view of the fact that the dismissal of the appeal by the Court of Appeal included issue 2 on abuse of process of the court, the argument advanced by learned counsel for the appellant that the Court of Appeal ought to have allowed ground 3 of the grounds of appeal before it, based on its earlier conclusion on the issue, is not valid. And what is more, what difference could it have made to allow a ground 3 In the Court of Appeal and in this court, an appeal could be allowed on an issue; certainly not on a ground since arguments are based on issues not ground. See Madumere v. Okafor (1996) 4 NWLR (Pt.445) 637.

Learned Counsel for the appellant called for the application of section 16 of the Court of Appeal Act and Order 3 rule 23 of the Court of Appeal Rules in respect of ground 3 of the grounds of appeal to set aside the sale of the property. The provisions, which allow the Court of Appeal to act as if it is the trial court in certain situations, are not invoked merely for the asking. The conditions for the invocation of the provisions are by now settled in law. See generally Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 264; Chief Ejowhomu v. Edok-Eler Mandilas Limited (1986) 5 NWLR (Pt.39) 1; Nneji v. Chief Chukwu (1988) 3 NWLR (Pt.81) 184; Chief Igiehon v. Omoregie (1993) 2 NWLR (Pt.276) 398; Adeagbo v. Alhaji Yusuf (1993) 6 NWLR (Pt.301) 623.

The provisions can only be invoked for a purpose. The provisions cannot be invoked to show appellate power. Before the Court of Appeal can invoke the power, the party must show that there is a real question in controversy for the court to determine and that it is a good case for a rehearing. After all, the Court of Appeal is not an avant-garde with powers of review of cases decided at the High Court, like an ombudsman going about raking up suo motu, decisions of that court, and looking for mistakes, supposedly made by that court with or without applications made to it by a complainant. See Chief Ejowhomu v. Edok-Eter Mandilas Limited, supra. Section 16 of the Court of Appeal Act is not in the statute to instigate competition in jurisdiction between the Court of Appeal and the High Court. The section lacks the legal capacity to wipe out the original jurisdiction of the High Court. The section, in my humble view, is there to assist in the speedy hearing of appeals. It is not a substitute for trial procedure in the High Court. I ask therefore, why section 16 or the sister, Order 3 rule 23

In sum, I am of the view that no useful purpose should have been served by invoking the provisions in this matter, as the Court of Appeal had no jurisdiction to allow a ground of appeal. As I said earlier, the Court of Appeal deals with issues in the briefs and not grounds of appeal in notice of appeal. The argument of Counsel therefore fails.

I have carefully examined the cross-appeal and I do not think it will serve any useful purpose to go into it, in the light of the conclusion I have reached in the main appeal. I will therefore not go into cross-appeal, including the preliminary objection.

In sum, the appeal fails and it is dismissed. The cross-appeal is of no moment, as it is overtaken by the event of dismissing the appeal. It is struck out. I award N10,000.00 costs against the appellant in favour of the respondents.

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SC.82/1999