Home » Nigerian Cases » Court of Appeal » Alhaji Aminu Maigari & Ors V. Yahaya Adama & Ors (2016) LLJR-CA

Alhaji Aminu Maigari & Ors V. Yahaya Adama & Ors (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

JOSEPH TINE TUR, J.C.A.

I have tagged this determination ?Decision? by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered because a ?decision? to mean, ?in relation to a Court, any determination of that Court and includes judgment, Decree, order, conviction, sentence or recommendation.? What the fathers of the Constitution omitted should not be inserted by trial and appellate Court Justices. In Davies vs. Powell (1737) Willes, 46, Willes, C.J. held at page 51 that, ?When the nature of things changes, the rules of law must change too.? R.W.M. Dias in Jurisprudence, 4th edition concurred at page 196 as follows:
?This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of change. The question under review is whether changed conditions may deprive a case of its law-quality
?The provisions of the Constitution are supreme and have binding force on every

person or authority in Nigeria. Any law, rule or judicial practice or precedent that is inconsistent with the provisions of the Constitution, to that extent, is void. See Section 1(1) and (3) of the Constitution (supra). I have the liberty to tag any determination an ?opinion? or ?decision? as provided under Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Any determination by a Justice of the Court of Appeal is a ?decision? or an ?opinion?.
In Deduwa & Anor. vs. Okorodudu & Ors. (1976) 1 NMLR Alexander, C.J.N. defined the word ?determination? at pages 243-244 as follows:
?We gave careful consideration to the argument of Chief Williams and Dr. Odje. First of all, in order that we should not find ourselves pursuing an academic exercise we had to satisfy ourselves as to whether or not the so-called ?ruling or determination? of the High Court was a judicial ?decision? or ?determination? within the meaning of Section 117(7) of the Constitution. This provision reads as follows:
?In

this Section ?decision? means, in relation to the High Court of a territory, any determination of that High Court and includes without prejudice to the generality of the foregoing provisions of this Subsection, a judgment, Decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation.?
More light is thrown on the meaning of the words ?decision? and ?determination? in the case of The Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, C.J.N. in giving the ruling of the Court said at page 432:
?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ?a bringing or coming to an end? or ?the mental action of coming to a decision,? or ?the resolving of a question.?
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ?determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme) Court, we send a matter back to the High Court for a

rehearing and determination; the word ?determination? therein meaning ?ending of the matter.
Section 294(2)-(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that:
?(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other justice who delivers a written opinion.
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was at the hearing.
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
(4) For the purpose of delivering its decision under this Section, the Supreme Court; or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sit for that purpose.?
Section 294(4) of the Constitution does not state that where the decision or opinion of the Court

is to be delivered, namely, in the Court or in any of Justices? Chambers. In Jarvis Motors (Harrow), Ltd. & Anor. vs. Carabott & Anor. (1964) 3 All E.R. 89 Ugoed-Thomas, J., (as he was) held at page 91 lines ?B?-?C? thus: what is not forbidden is permitted.?
?
The appellants have appealed against the decision of Hon. Justice Haruna Musa Kurya of the Federal High Court, Jos, Plateau State delivered on 8th April, 2016 in favour of the respondents. The Notice of Appeal was filed on 12th April, 2016. The appellant?s brief, settled by Festus Keyamo, Esq. of Counsel was filed on 10th May, 2016. The 1st and 2nd respondents? brief, settled by H.S. Ardzard, Esq. of learned Counsel was filed in this Court on 1st July, 2016. The 3rd respondent?s learned Counsel Olatigbe, Esq. ? Director in the Federal Ministry of Justice did not file any brief of argument hence was not granted audience when the appeal came up for hearing on 21st July, 2016. The appeal suffered some adjournments at the instance of learned Counsel for one reason or the other until briefs were adopted by the

appellants? Counsel on 21st July, 2016. Learned Counsel urged that the appeal be allowed. Page 6 of the brief set out the following issues for determination:
?1. Whether the learned trial Judge was right when he relisted a suit struck out for more than 14 months without cogent grounds? (This issue is distilled from Grounds 1 and 5 of the Notice of Appeal).
2. Whether the learned trial Judge was right when he restored the interim orders earlier made on 19th September, 2014 which had become spent and/or lapsed by effluxion of time? (This issue is distilled from Ground 2 of the Notice of Appeal).
3. Whether the learned trial Judge was right when he made an order restoring all orders including the order made on 23rd October, 2014 while relisting the suit struck out on 30th October, 2014? (This issue is distilled from Ground 3 of the Notice of Appeal).
4. Whether the learned trial Judge was right when he held that there was a proper prayer on the face of the motion paper to relist the suit? (This issue is distilled from Ground 4 of the Notice of Appeal).?
?
The learned Counsel to the 1st and 2nd respondents distilled the

following two issues for consideration at page 6 of the brief to wit:
?(i) Whether the learned trial Judge was right to have relisted for hearing and determination of suit No.FHC/J/CS/77/2014 which was earlier struck out by the Court. (Distilled from Grounds 1, 4 and 5).
(ii) Whether the learned trial Judge was wrong when he restored the interim order previously made in Suit No.FHC/J/CS/77/2014. (Distilled from Grounds 2 and 3).?

H.S. Ardzard, Esq. was not in Court to adopt the 1st and 2nd respondents? brief. However, Order 18 Rule 9(4) of the Court of Appeal Rules, 2011 is authority that ?When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.?

I wish to draw attention to Order 18 Rules 9(1) of the Rules (supra) which provides that ?Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing

in the briefs already filed in Court.?
It is within the province of the Court of Appeal Justices to allow oral argument at the hearing of an appeal if there is any thing to emphasize and clarify in the written argument appearing in the briefs already filed in Court. Where there is none, oral argument may not be allowed. The intention of the legislature is to determine appeals on the arguments in the briefs filed by the parties or their legal representatives.

Furthermore, Order 18 Rules 3(1)-(4) of the Court of Appeal Rules, 2011 provides as follows:
?3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory

instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and. wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.?
The parties or their legal representatives should assume that the Justices have read the briefs and considered all documents, law reports, and exhibits admitted in evidence during the proceedings in the Court below. This will obviate the necessity of summarizing in much detail the arguments of learned Counsel proffered in their respective briefs.

Order 18 Rule 3(1) of the Rules (supra) again provides as follows:
?3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds

of appeal.?

The duty of the respondents is provided in Order 18 Rule 4(1)-(2) to wit:
?4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.?
?The reason is simple: it is the appellants that are aggrieved with the decision of the Court below and have appealed to this Court. The issues formulated by the appellants relate or have arisen from the grounds of appeal. The duty of the respondent is to show why this appeal should be dismissed. For the above reasons, I shall confine my decision to the four issues formulated by the appellants for determination in the absence of a cross-appeal or a Respondent?s Notice as provided under Order 18 Rule 7

of the Rules (supra) which reads as follows:
?7. A respondent may, without leave, include arguments in respect of a cross-appeal or a respondent’s notice in his brief for the original appeal and the cross-appeal or respondent’s notice.?

I shall now consider the facts in dispute that led the respondents to institute the Originating Summons before the Court below against the appellants. In the determination of this appeal I shall review the arguments of Counsel only as it concerns the relevant matters in controversy. This practice was adopted by Lord UpJohn in Abudu Gbadamosi Ijale vs. B.A. Shonibare determined on 25th February, 1964, Privy Council Judgments (1841-1973) 1980 edition by Olisa Chukura (SAN), page 947 at 948 as follows:
?There were many issues of fact before the trial Judge but only one relevant to this appeal, namely, an important issue as to the existence of a ledger or produce book alleged to belong to the appellant which the respondent said, would contain entries relating to the transaction and would establish his case. The appellant denied the existence of any such book and the trial Judge decided this issue

in his favour. The Federal Supreme Court differed from the trial Judge fundamentally in holding that this ledger or produce book must be in existence. Therefore it followed, as the appellant had not produced it, that the inference must be drawn that its production would prove unfavourable to him. On this ground they allowed the appeal.
In these circumstances some review of the evidence by their Lordships is necessary but they propose only to review the pleadings and evidence relating to this question and in no wise to cover the many other matters which were in controversy before the trial Judge, but did not arise on the appeal before the Federal Supreme Court or JUSTICES.?

The 1st and 2nd respondents alleged that they are the legitimate Members of the Executive Committee of the Nigerian Football Federation elected on 26th August, 2014. They claim that the appellants were the Defunct Members of the Executive Committee of Nigerian Football Association/Nigerian Football Federation whose tenure of office expired on 25th August, 2014? and that the Plateau State Football Association (3rd appellant) represents

all the 36 States of the Federal Republic of Nigeria and of the Federal Capital Territory.? The 3rd respondent is the Honourable Minister of the Federal Ministry of Sports in Nigeria. The 1st and 2nd respondents instituted the action by way of originating summons supported by affidavits and documentary exhibits on 19th September, 2014 seeking that the following questions be determined by the Lower Court to wit:
?1. Whether having regard to the provision of Article 33(6) of the Nigerian Football Federation Statutes, 2010 the 1st defendant and all other members for the defunct Executive of the Nigerian Football Federation (hereinafter called ?the NFF?) having been elected and sworn in for a term of office of 4 years on 26th August, 2010 can still remain the President and Executive Committee of the NFF and execute the functions of such offices after the expiration of their tenure of office on 25th day of August, 2014.
2. Whether having regards to the provision of Article 29(1) of the NFF Statutes, 2010 the 1st defendant and all other members of the defunct Executive Committee of the NFF whose tenure of office

terminated on the 25th day of August, 2014 by effluxion of time have the vires to convene an extra ordinary general assembly of the NFF.
3. The Executive Committee of the NFF having convened a general assembly of the federation which held on the 26th of August, 2014 whereat a new President and members of the Executive Committee of the NFF were elected and sworn in for a tenure of four years, whether having regard to the general provisions of the NFF Statutes, 2010, the 1st and 2nd defendants and other members of the defunct executive committee of the NFF can still convene another general assembly or extraordinary general assembly of the NFF for the purpose of electing a President and other members of the executive committee of the NFF either at all or before the expiration of the tenure of the said Executive Committee elected on 26th August, 2014.?

If the questions were favourably determined the 1st and 2nd respondents wanted the Lower Court to grant them the following reliefs:
?1. A declaration that the tenure of office of the 1st defendant and all other members of the Executive Committee of the NFF led by him expired on 25th

August, 2014.
2. A declaration that the Executive Committee of the NFF elected and sworn in or 26th August, 2014 is and remains the only recognized and legitimate Executive Committee of the NFF.
3. A declaration that the tenure of office of the 1st defendant as President of NFF and other members of the Executive Committee of the NFF led by him having expired on 25th August, 2014, the said 1st defendant and all other members of the defunct of executive committee of the NFF led by him by themselves or through their agents or servants lack the vires to convene a general assembly or extraordinary general assembly of the NFF.
4. AN ORDER of perpetual injunction restraining the 1st and 2nd defendants and all other members of the defunct Executive Committee of NFF jointly and severally by themselves or through their agents or servants from convening and/or holding a general assembly or extraordinary general assembly of the NFF and/or conducting or holding any election into the Executive Committee of the NFF.
5. AN ORDER of perpetual injunction restraining the 1st and 2nd defendants and all other members of the defunct Executive Committee of NFF

jointly and severally from further parading themselves as the legitimate President and members of the Executive Committee of the NFF.
6. AN ORDER of perpetual injunction restraining the 3rd defendant and the Football Associations of the other 35 States of the Federation and of the FCT from participating in any general assembly or extraordinary general assembly convened by the 1st and 2nd defendants and the defunct members of the Executive Committee of the NFF.
7. AN ORDER of perpetual injunction restraining the 4th defendant from further giving recognition to the 1st and 2nd defendants and all other members of the defunct Executive Committee of the NFF as the legitimate President, General Secretary and Executive Committee of the NFF.
8. AN ORDER of mandatory injunction compelling the 1st, 2nd, 3rd and 4th defendants jointly and severally to give recognition to the general assembly meeting of the NFF held on 26th August, 2014 and the election into the Executive Committee of the NFF conducted at that meeting.?
?
Grace Ajio (F), Litigation Secretary in the Chambers of H.S. Ardzard & Co. Solicitors to the respondents swore an affidavit

in support of the originating summons on 19th September, 2014. Accompanying the originating summons are Exhibits ?1? to ?3? and a written address by the learned Counsel representing the respondents. Grace Ajio again swore to an affidavit in support of a motion exparte followed by an affidavit of urgency. The respondents sought the following reliefs against the appellants in the motion exparte:
?1. AN ORDER for leave to issue and serve the 1st, 2nd and 4th defendants an originating summons outside the jurisdiction of this Honourable Court and to indorse same as such.
2. AN ORDER of interim injunction restraining the 1st and 2nd defendants and all other members of the defunct Executive Committee of NFF jointly and severally by themselves or through their agents or servants from convening and/or holding a general assembly or extra-ordinary general assembly of the NFF and/or conducting or holding any election into the Executive Committee of the NFF pending the hearing and determination of the motion on notice filed in this case.
3. AN ORDER of interim injunction restraining the 1st and 2nd defendants and all other

members of the defunct executive committee of NFF jointly and severally from further parading themselves as the President and members of the executive committee of the NFF pending the hearing and determination of the motion on notice filed in this case.
4. AN ORDER of interim injunction restraining 3rd defendant and the Football Associations of the other 35 States of the Federation and of the FCT from participating in any general assembly or extraordinary general assembly convened by the 1st and 2nd defendants and the defunct members of the executive committee of the NFF pending the hearing and determination of the motion on notice filed in this case.
5. AN ORDER of interim injunction restraining the 4th defendant from further giving recognition to the 1st and 2nd defendants and all other members of the defunct executive committee of the NFF as the legitimate President and executive committee of the NFF pending the hearing and determination of the motion on notice filed in this case.
6. AN ORDER of mandatory injunction in the interim compelling the 1st, 2nd 3rd and 4th defendants jointly and severally to give recognition to the general

assembly meeting of the NFF held on 26th August, 2014 and the election into the executive committee of the NFF conducted at that meeting pending the hearing and determination of the motion on notice filed in this case.
7. AN ORDER of interim injunction restraining all the defendants by themselves, their servants or agents from interfering with the plaintiff?s performance of their duties/execution of their offices as executive committee of the NFF pending the hearing and determination of the motion on notice filed in this case.
8. AN ORDER for leave to serve all the defendants with all the Court processes in this case by substitution by pasting same at their respective addresses indicated on the face of the originating summons and in the case of any order of the Court by also publishing same through the electronic or print media.
AND SUCH FURTHER ORDER(S) as the Court may deem fit to make in the circumstances.?

The affidavit of urgency read as follows:
?1. That I am a litigation Secretary in the firm of H.S. Ardzard & Co., Solicitors to the plaintiff by virtue of which I am familiar with facts deposed to

hereunder.
2. That I have the consent of both my employers and the plaintiff to depose to this affidavit.
3. That I am informed by the 1st plaintiff in chambers at No.5A Kashim Ibrahim Street on 17th September, 2014 at about 9:45am and I verily believe the information to be true and correct as follows:
a. That he is a member of the general assembly/congress of the Nigerian Football Federation (hereinafter called the NFF).
b. That together with 2nd plaintiff and others he was also elected as a member of the executive committee of the NFF at the election which held during the general assembly of the said NFF on 26th August, 2014.
c. That sometime on the 26th of August, 2010 the general assembly of the NFF held wherein the first defendant and other members of the executive committee of the NFF were elected.
d. That the tenure of office of the President and all other members of executive committee of the NFF is 4 (four) years from the date of their election. A copy of the NFF Statutes, 2010 is annexed hereto as Exhibit ?1?.
e. That on or about 28th November, 2013 another general assembly of the NFF held wherein it

was decided that the next general assembly of the said NFF for the year 2014 will hold on the 26th August, 2014.
f. That at the said general assembly of the NFF held in 2013 it was agreed that one of the agenda for the 2014 general assembly of the said NFF would be an election of the President and other members of the executive committee of the NFF.
g. That the said general assembly of the NFF held in 2013 constituted an electoral committee headed by one Amino Biambo to organize and conduct the election of the President and other members of the executive committee of the NFF in 2014.
h. That the executive committee of the NFF led by the 1st defendant who was the President and the 2nd defendant who was the Secretary convened the general assembly of the NFF for the year 2014 to hold on the said 26th day of August, 2014 in Abuja.
i. That on the said 2nd day of August, 2014 the general assembly of the NFF held in Abuja. The minutes of the said general assembly is annexed hereto as Exhibit ?2?.
j. That one of the agenda of the said general assembly of the NFF was the election of the President and other members of the executive

committee of the NFF.
k. That at the said general assembly of the NFF held on 26th August, 2014 the electoral committee constituted by the general assembly of the NFF in 2013 conducted an election to elect the President and other members of the executive committee of the NFF.
l. That prior to the 26th day of August, 2014, the 1st defendant tendered his resignation as president of the NFF effective 25th day of August, 2014.
m. That consequent upon the deposition in sub paragraph (l) above, the then vice President of the NFF one Mr. Mike Umeh presided over the general assembly held on 26th August, 2014.
n. That the 2nd defendant also participated in the said general assembly in his position as general secretary of the NFF and he took the roll call of all the delegates present at the general assembly.
o. That after the roll call and accreditation of all the delegates at the general assembly on 26th August, 2014, the executive committee of the NFF elected on 26th August, 2010 was duly dissolved and the electoral committee constituted in 2013 was invited to conduct election to elect a new President and members of the executive committee

of the NFF.
p. That the said electoral committee conducted the said election and a new President and members of the executive committee of the NFF were duly elected and sworn in on that day. The report of the electoral committee is annexed hereto as Exhibit ?3?.
q. That however to the surprise and consternation of the football fraternity in Nigeria, after the said general assembly of the NFF held on 26th August, 2014, the 1st and 2nd defendants and other members of the executive committee of the NFF elected on 26th August, 2013 and dissolved on 26th August, 2014 continued to parade themselves as the President, Secretary and executive committee members respectively of the NFF.
r. That sometime on or about the month of September, 2014 the 1st and 2nd defendants and other members of the defunct executive committee of the NFF purportedly convened an extraordinary general assembly of the NFF to hold on or about 20th September, 2014, for the purpose of conducting another election of the President and other members of the executive committee of the NFF.
s. That the plaintiff came aware of the development deposed to sub paragraph (r)

above only sometime on or about the 17th September, 2014.
t. That the issues of election of the president and other executive committee members of the NFF and their tenure of office are guided by the provisions of the NFF Statute, 2010 i.e. Exhibit ?1?.
u. That already the 1st and 2nd defendants and all members of the defunct executive committee of the NFF have convened a purported general assembly of the NFF scheduled for 20th September, 2014.
v. That unless restrained the said 1st and 2nd defendants and members of the defunct EXCO of the NFF will hold the said general assembly on the said 20th September, 2014.
w. That the said 1st and 2nd defendant and other members of the defunct NFF intend to hold an election to elect a President and other members of the EXCO of the NFF.
x. If the 1st and 2nd defendants and members of the defunct EXCO of the NFF are allowed to conduct the said general assembly and election it will jeopardize the mandate of the plaintiffs and put Nigerian Football into serious confusion and crisis.
y. That if the mandate of the plaintiffs is allowed to be jeopardize, the plaintiffs will suffer

serious damages which cannot be adequately compensated in damages.
z. That if the said 1st and 2nd defendants and their defunct EXCO are allowed to conduct another election into the EXCO of the NFF, the damages that will be suffered by the plaintiffs would be irreversible and any judgment to be delivered by this honourable Court in the plaintiffs? favour would be rendered nugatory.
aa. That it will serve the interest of justice to preserve res pending the hearing and determination of the motion on notice filed by the applicant.
bb. That if the application is allowed and the motion on Notice fails the 1st and 2nd defendants and their defunct EXCO can go ahead and hold their congress and conduct their election but if the application is refused and the 1st and 2nd defendants and their EXCO hold their general assembly and election and the motion on notice succeeds the plaintiffs will be left to again fight against the new EXCO of the NFF that would have emerged which may take several years by which time their tenure may elapse and their case becomes an academic exercise.
cc. That the balance of convenience favours the grant of this

application.
dd. That the plaintiff gives an undertaking to compensate the defendants in damages if this application is granted and the motion on notice fails.
ee. That if the 1st and 2nd defendants are allowed to convene a general assembly of the NFF and to conduct election into the EXCO of the NFF it will result in a fait accompli thereby destroying the res of this litigation.
ff. That the action of the 1st and 2nd defendants is aimed at causing confusion in Nigerian Football.
gg. That the plaintiffs have a strong case which is likely to succeed.
hh. That serious urgency exists in this matter in view of the closeness of the date the 1st and 2nd defendants and their defunct EXCO scheduled their purported general assembly and election which is 20th September, 2014.
ii. That it will serve the interest of justice to serve the defendants with all the processes in this matter by substitution by pasting same at their respective addresses and to publish the order of this Court through the electronic or print media in view of the urgency of the matter and the limited period of time between now and the 20th day of September, 2014 when

the 1st and 2nd defendants intend to convene the purported general assembly of the NFF and the said election.
jj. That the 1st, 2nd and 4th defendants all reside or are located in Abuja the FCT which is outside the jurisdiction of this Honourable Court and that the leave of this Honourable Court is required to issue and serve them with the originating processes in this case.
4. I verily believe that it will serve the interest of justice to grant this application and that the defendants will not be prejudiced thereof.
5. I depose to this affidavit in good faith verily believing the content to be true and correct to the best of my knowledge, information, belief and in accordance with the Oaths Act.?

The respondents followed by filing a motion on notice supported by the sworn affidavit of Grace Ajio (F) on the same 19th September, 2014, pursuant to Order 28 Rule 1 of the Federal High Court (Civil Procedure) Rules and the inherent powers of the Court below. The respondents sought the following remedies:
?1. AN ORDER of interlocutory injunction restraining the 1st and 2nd defendants and all other members of the defunct

executive committee of NFF jointly and severally by themselves or through their agents or servants from convening and/or holding a general assembly or extraordinary general assembly of the NFF and/or conducting or holding any election into the executive committee of the NFF pending the hearing and determination of the substantive suit.
2. AN ORDER of interlocutory injunction restraining the 1st and 2nd defendants and all other members of the defunct executive committee of NFF jointly and severally from further parading themselves as the president and members of the executive committee of the NFF pending the hearing and determination of the substantive suit.
3. AN ORDER of interlocutory injunction restraining the 3rd defendant and the Football Associations of the other 35 States of the Federation and of the FCT from participating in any general assembly or extraordinary general assembly convened by the 1st and 2nd defendants and the defunct members of the executive committee of the NFF pending the hearing and determination of the substantive suit.
4. AN ORDER of interlocutory injunction restraining the 4th defendant from further giving

recognition to the 1st and 2nd defendants and all other members of the defunct executive committee of the NFF as the legitimate president and executive committee of the NFF pending the hearing and determination of the substantive suit.
5. AN ORDER of mandatory injunction in the interim compelling the 1st, 2nd, 3rd and 4th defendants jointly and severally to give recognition to the general assembly meeting of the NFF held on 26th August, 2014 and the election into the executive committee of the NFF conducted at that meeting pending the hearing and determination of the substantive suit.
6. AN ORDER of interlocutory injunction restraining all the defendants by themselves, their servants or agents from interfering with the plaintiff?s performance of their duties/execution of their offices as executive committee of the NFF pending the hearing and determination of the substantive case.
AND SUCH FURTHER ORDER(S) as the Court may deem fit to make in the circumstances.?

The reliefs sought in the motion on notice, if granted were to last pending the hearing and determination of the substantive suit? (See prayers 1-5)

or pending the hearing and determination of the substantive case.? (See prayer 6) on the motion on notice.

Allagoa, F.J., heard oral argument on the motion exparte and granted the reliefs sought by the respondents. The enrolled order is at page 148-152 of the printed record. The motion on notice was adjourned for hearing to 8th October, 2014. On 30th October, 2014 the following entries appear in the record of proceedings at page 401 lines 9 to page 402 lines 1-12 of the printed record:
?Parties are absent.
H.S. Ardzard appearing with S.D. Ekara for the plaintiff respondents.
D.N. Dashe appearing with D.I. Gwaza, Onoja Joshua and N. Yusuf for the 1st to 3rd defendants.
Mr. Ardzard: Since yesterday after the sitting of the Court so many well-meaning Nigerians have intervened in this matter and appended to the plaintiffs to give greater consideration to national interest in this suit. The plaintiff therefore decided that in the National interest they will discontinue with this matter. To that effect we have filed a notice of discontinuance dated 30th October, 2014. We therefore apply to withdraw this matter.

Mr. Dashe: Ordinarily this is not one notice that we intend to contest. However, filing this motion has the effect of arresting the ruling of the Court. We however pray this Honourable Court to discharge the previous orders made by this Honourable Court.
Court: This matter was slated for ruling today and having come for the ruling I am faced with a notice of discountenance dated and filed this morning the 30th October, 2014. Therefore pursuant to Order 50 Rule 2 of the Federal High Court Rules, 2009, the plaintiff having withdrawn this suit all the orders made previously including the dissolution of the Executive Committee/Board of the Nigerian Football Federation vide the order of this Honourable Court dated 23rd October, 2014 seizes to have life and this matter stands struck out.
No orders as to cost.?

The enrolled order at page 403 lines 27 to page 404 lines 1-15 of the printed record is as follows:
?ORDER
Upon this suit coming up today for ruling H.S. Ardzard of Counsel fro the plaintiffs with S.D. Ekara informed the Court that they want to withdraw the matter in the national interest to that effect, they have

filed a notice of discontinuance dated the 30th day of October, 2014. D.N. Dashe appearing with D.T. Gwaza, Onoja Joshua and N. Yusuf of Counsel for the 1st to 3rd defendants not opposing.
IT IS HEREBY ORDERED AS FOLLOWS:
1. That pursuant to Order 50 Rule 2 of the Federal High Court Rules, 2009, the plaintiff having withdrawn this suit, all the orders made previously including the dissolution of the executive committee/Board of the Nigerian Football Federation vide the order of this Honourable Court dated 23rd day of October, 2014 seizes to have life and this matter stands struck out.
2. That no order as to cost.?

Upon granting the above orders on 30th October, 2014 nothing happened till H.M. Kurya, F.J., (See page 405 lines 6-7 of the printed record) became the resident Federal Judge in the Federal High Court having taken over from Allagoa, F.J. On 10th March, 2016 Kurya, F.J., heard an application on notice dated 29th January, 2016 but filed on 3rd February, 2016 which adjourned to render a decision on 8th April, 2016. I have used ?decision? rather than ?ruling? since any determination by every Court

established under this Constitution is ?decision?. The word ?ruling? is omitted from Section 318(1) of the Constitution (supra).

On 8th April, 2016 Kurya, F.J., commenced his decision at page 414 lines 13 to page 415 lines 1-11 of the printed record as follows:
?RULING
This ruling is sequel to the plaintiff/applicants? motion on notice dated 29th January and filed 3rd February, 2016.
The motion is for three orders to wit:
(i) For extension of time to re-list
(ii) Order to re-list.
(iii) Restoration of all order made brought pursuant to Order 19 Rule 4(3), Order 50 Rule 4 and Order 26 of the Federal High Court (Civil Procedure) Rules, 2009 and under the inherent powers of this Honourable Court. It?s supported by a 5 paragraphs affidavit deposed to by one Mr. Ekara, a Counsel in the law firm of solicitors to the applicant.
The motion is supported by an accompanying written address. While the learned Counsel placed reliance on all the averments he adopted the written address as their argument before this Court and prayed the Court to grant all the three prayers.
The learned

Counsel proceeded to draw the attention of the Court to the 1st ? 4th respondents? counter-affidavit dated 10th February, 2016 and pointed that they have further responded by filing a reply on points of law dated 12th February, 2016 which he adopted as their further argument.?

Having summarized the facts in controversy, the learned Federal Judge considered the affidavit evidence and submissions of learned Counsel before holding at pages 425 lines 3 to page 427 lines 1-8 of the printed record as follows:
?I have considered the respondents defence as are contained under their paragraphs 2(j)-(o) and am of the view that each paragraph either lacks merit or has been rise premature been defences which can be rise during trial by oral evidence.
They are hereby refused. So also do I find with his oral argument as to the application being against public policy. The plaintiff/applicant application is for his personal right to be heard before a Court of law, it is a right yet to be determined. This Court is under a legal duty under the 1999 Federal Constitution to hear him and not to shot him out. For the length of time taken to

bring this application which is been explained anyway, has not and does not foreclose that right.
I have stated above that this is only a ruling in an interlocutory application. I am of the firm view that the plaintiff/applicant?s application be and is hereby granted and the respondents? defence or objection overrule.
Consequently, an order is hereby made:
(i) For extension of time within which to apply for re-list for hearing and determination of suit No.FHC/J/CS/77/2014 together with all the motions pending which were discontinued and struck out by this Honourable Court on the 30th October, 2014.
Consequently, all process filed in furtherance to the hearing of this suit are hereby deemed to have been properly filed and served.
(ii) An order is hereby made relisting for hearing and determination of this suit No.FHC/J/CS/77/2014 together with all the motion pending which were discontinued and struck out by this Honourable Court on the 30th October, 2014.
(iii) An order is hereby made restoring all the orders made by this Honourable Court in the suit No.FHC/J/CS/77/2014 when the suit was struck out on 30th October,

2014.
No order is made as to cost.
The case shall be adjourned for hearing on its merit.?

The learned Federal Judge went on to state at page 413 lines 16 of the printed record that, ?As agreed upon the case is hereby adjourned till the 30th May, 2016 for trial.? The appellants were aggrieved hence this appeal now under consideration. Though the learned Counsel to the appellants raised four issues for determination I am of the humble opinion that the issues do overlap. Formulated issues that overlap may be merged so as to avoid a proliferation of issues and arguments. See Anie vs. Uzorka (1993) 8 NWLR (Pt.309) 1 at 16 and 17. The Supreme Court deprecates proliferation of issues for determination. See Ononuju vs. State (2014) 8 NWLR (Pt.1409) 345 at 378; Omega Bank Nig. Plc vs. O.B.C. Ltd. (2005) 8 NWLR (Pt.928) 547; Mozie vs. Mbamalu (2006) 15 NWLR (Pt.1003) 466 and Odoemena Nwaigwe & Ors. vs. Okere (2008) All FWLR (Pt.431) 843 at 858.
?
The simple issue is whether the learned Federal Judge should have granted the reliefs sought by the respondents having taken over from Allagoa, F.J that was discontinued, withdrawn and

struck out by Allagoa, F.J., on 30th October, 2014. The Originating Summons was filed on 19th September, 2014. By that time the Federal High Court Civil Procedure Rules, 2009 was in operation or in force from 30th day of April, 2009. The answer to the four questions raised by the learned Counsel to the appellants for determination lies in the construction or interpretation of the provisions of Order 28 Rules 1, 2 of the Federal High Court Civil Procedure Rules, 2009. The learned Federal Judge relied on Order 50 Rule 1 of the Rules (supra) to grant the remedies now subject of this appeal.
?
In my humble opinion, Allagoa, F.J., was satisfied with the affidavit of urgency before making or granting the exparte orders filed on 19th September, 2014 pending the hearing and determination of the motion on notice. There was no challenge to the exparte orders by way of an appeal to the Court of Appeal. Furthermore, it was by consensus that Allagoa, F.J., pursuant to Order 50 Rule 2 of the Federal High Court Rules, 2009, granted leave for the respondents to discontinue and withdraw the suit which was struck out without any conditionalities. The order made on 30th

October, 2015 was, for emphasis and clarity, applicable to ?1. ?All the orders made previously including the dissolution of the Executive Committee/Board of the Nigerian Football Federation vide the order this Honourable Court dated 23rd day of October, 2014 seizes to have life and this matter stands struck out (2). That no order as to cost.?

To ?discontinue this matter, in the national interest? by filing ?a notice of discountenance? (See page 401 lines 13-18) were the reasons given by learned Counsel to the 1st and 2nd respondents on 30th October, 2014. Generally speaking, to ?discontinue? or ?discontinuance? is defined in Black?s Law Dictionary, 9th edition, page 532 to mean ?1. The termination of a lawsuit by the plaintiff; a voluntary dismissal? See DISMISSAL; NON SUIT (1); judgment of discontinuance under JUDGMENT
A ?judgment of discontinuance? means ?1. A judgment dismissing a plaintiff?s action based on interruption in the proceedings occasioned by the plaintiff?s failure to continue the suit at the appointed

time or times? often shortened to discontinuance The discontinuance of the suit arrested the delivery of the decision of Allagoa, F.J., in respect of the preliminary objection argued against the motion dated 8th October, 2014, and adjourned for a decision on 23rd October, 2014. On 29th October, 2014 Dashe, Esq. observed at page 398 lines 13 to page 400 lines 1-10 of the printed record as follows:
?Mr. Dashe: Ordinarily today would have been a date for hearing of the motion for leave to appeal the ruling of this Honourable Court delivered on the 23rd October, 2014. However, given certain development after the said application had been filed. We urged my Lord to take the preliminary objection same having been served.
Mr. Ardzard: We have no objection to the taking of the preliminary objection. Limine.
Mr. Ardzard: We have filed a counter-affidavit to the preliminary objection and we have filed a written address. We wish to correct a typographical error. In paragraph 3.4.1 of our address anywhere Section 33(1) of the Constitution appears to correct same to read Section 36(1) of the Constitution.
Mr. Dashe: We do not

oppose that application.
Court: Yes Mr. Dashe moves the preliminary objection.
Mr. Dashe: Before this Court is a Notice of Preliminary Objection dated the 22nd October, 2014 and filed on the 23rd October, 2014. The Notice of preliminary objection is supported by 5 paragraph affidavit, one annexure marked Exhibit ?A?. The Notice of preliminary objection is linked on two grounds as endorsed on the face of the notice as well as 4 particulars in support of the said ground. The notice prays the Court for striking out this suit No.FHC/J/CS/77/2014. In compliance with the Rules of this Court, the applicant filed a written address which we adopt, we urge the Court to hold that, this Honourable Court has no jurisdiction to entertain this matter, particularly so in vies of Exhibit ?A?. The plaintiff filed a counter-affidavit and formulated about 4 issues for determination especially as it relates to the affidavit.
Mr. Ardzard: In opposition to the notice of preliminary objection on behalf of the plaintiffs we have filed an affidavit of 5 paragraphs we place reliance on all the said counter-affidavit. We have filed a written

address. We adopt same capturing as our argument.
We don?t have any disagreement. The defendants ought to have sought internal dispute resolution mechanism on the Nigerian Football Federation Statutes. We won an election and have sworn in they are the ones who are not dissatisfied, they ought to seek internal mechanism for settlement of their grievance. I urge this Honourable Court to dismiss the objection and let this matter be determined on its merit.
Court: Having heard the parties argue this preliminary objection, the ruling will be given on the 30th October, 2014.?

That is to say, following the 1st and 2nd respondents, undertaking the appellants did not pursue their application seeking leave to appeal to the Court of Appeal against the decision of Allagoa, F.J., delivered on 23rd October, 2014. The Federal High Court Civil Procedure Rules, 2009 have no provision for arresting any decision or determination of the Federal High Court. Nevertheless Allagoa, F.J., did, contrary to the decision of the Supreme Court in Newswatch Communication Ltd. vs. Atta (2006) All FWLR (Pt.318) 580 at 606-609 paragraphs

?H?-?A? citing Bob-Manvel vs. Briggs (1995) 7 NWLR (Pt.409) 537. In the words of Ardzard, Esq. of learned Counsel to the 1st and 2nd respondents at page 401 lines 13-15 of the printed record the discontinuance and withdrawal of the Originating Summons and pending motions was to give greater consideration to national interest in this suit.? That is why ?the plaintiff therefore decided that in the national interest they will discontinue this matter See page 401 lines 15 to 17 of the printed record.

In Ogbechie vs. Onochie (1988) 2 SCNJ (Pt.1) 170, Oputa, JSC enumerated circumstances when a suit should be dismissed, struck out or an order of non-suit should be made at pages 194 as follows:
?Secondly, an order of dismissal puts an end to the claim, while an order for a non-suit or an order striking out, keeps the claim alive. Interest rei publicae ut sit finis litium (Co. Litt. 303). (It is in the interest of all that there should be an end to litigation)?.?
?
Even if Allagoa, F.J., had merely struck out the substantive suit and an application for time to be extended

to relist same had been brought by the 1st and 2nd respondents because an order striking out a suit keeps the claims alive, the learned Federal Judge, Kurya, J., should have taken into consideration that it is not permissible for parties or Counsel to jump in and jump out of the temple of justice whenever they like. Secondly, that the Latin maxim ?Interest rei publicae ut sit finis litium? meaning ?it is in the interest of all that there shall be an end to litigation? should have guided his decision.
?
Learned Counsel to the 1st and 2nd respondents informed Allagoa, F.J., on 30th October, 2014 why it became necessary to withdraw or discontinue the substantive suit. See page 401 lines 13 to 22 of the printed record. If the discontinuance and withdrawal of the suit on 30th October, 2014 was in the interest of this nation, why is it necessary almost two years thereafter to have this suit relisted by filing this application on 3rd February, 2016? Is it in the interest of the nation and the appellants to have the suit and all applications pending relisted? Between 30th October, 2014 and 3rd February, 2016 when this application was filed

and the Court delivered a decision on 8th April, 2016, a period of more than two years has lapsed. At no time did the 1st and 2nd respondents explain why it was no longer in the interest of this nation for the 1st and 2nd respondents not to have abided by their undertaking to discontinue and withdraw the suit in the interest of this nation. To ?withdraw? is ?1? To take back (something presented, granted, enjoyed, possessed, or allowed? 2. to retract (one?s words)? 3. to refrain from prosecuting or proceeding with (an action) ?Withdrawal? is ?1. The act of taking back or away; removing? 2. The act of retreating from a place, position or situation See Black?s Law Dictionary, 9th edition, page 1739. To ?strike out? means inter alia 3. To expunge, as from a record See page 1559 of the Black?s Law Dictionary (supra). The word ?expunge? is also defined at page 662 of Black?s Law Dictionary (supra) as follows:?Expunge: 1. To erase or destroy (the trustee wrongfully expunged the

creditor?s claim against the debtor). 2. Parliamentary law. To declare (a vote or other action) null and outside the record, so that it is noted in the original record as expunged, and redacted from all future copies. Also termed rescind and expunge; rescind and expunge from the minutes; rescind and expunge from the record. ? expungement, expunction.
?Where it is desired not only to rescind an action but to express very strong disapproval, legislative bodies have voted to rescind the objectionable action and expunge it from the record. When a record has been expunged, the chief legislative officer should cross out the words or draw a line around them in the original minutes and write across them the words, ?Expunged by order of the senate (or house),? giving the date of the order. This statement should be signed by the chief legislative officer. The word ?expunged? must not be so blotted as not to be readable, as otherwise it would be impossible to determine whether more was expunged than ordered. When the minutes are printed or published, the expunged portion is omitted.? National Conference of State

Legislatures, Mason?s Manual of Legislative Procedure, paragraph 444, at pages 296-97 (2000).
Expungement of record (1966) ? The removal of a conviction (especially for a first offense) from a person?s criminal record. ? Also termed expunction of record; erasure of record
The pending motion on notice and the exparte orders made were in respect of the Originating Summons. Whatever processes had been filed in the Court below were dependent on the Originating Summons. When Allagoa, F.J., granted the 1st and 2nd respondents leave to discontinue the originating summons and withdraw the suit on 30th October, 2014, that included all other processes founded on the suit discontinued and withdrawn, example, the decision already rendered on the exparte application by the learned Federal Judge and any pending motion on notice. All were expunged from the records of the Court below. The learned Federal Judge held that all the orders previously made seizes to have life and this matter stands struck out.? See page 404 lines 1-15 of the printed record.
?The withdrawal of the Originating Summons and its

striking out under the circumstances amounted to the restoration of the parties to the status quo prior to the institution of the main suit on 19th September, 2014 thereby paving the way for the appellants to continue in office as if no dispute or controversy existed between the parties. Generally, speaking a suit may be struck out with or without conditionalities but subsequently relisted. When relisted it is not a new suit; it is the old suit struck out that was relisted on the cause list. See Kassim vs. Ebert (1966) NNLR 75 or (1966) NSCC 44.
In Ogbechie & Ors. vs. Onochie & Ors. (supra) Oputa, JSC held at page 195 thus:
?Fourthly, an order of striking out, or of a non-suit, is usually made in the interest of justice. Now justice in civil proceedings is not a one way traffic. It is not justice for the plaintiffs/appellants alone. No. It is also justice for the defendants/respondents. Striking out the claim for a declaration will be of immense advantage to the losing plaintiffs (who can thereafter proceed afresh) without any corresponding advantage to the winning defendants/respondents in the Court of Appeal. Justice that is not even

handed is not justice. It may be injustice. The Court of Appeal showed some sympathy for the plaintiffs but as I observed in Willoughby vs. International Merchant Bank (1987) 1 NWLR 105 at page 132, justice should do far better without the bandage of prejudice or sympathy around her eyes

In Akunnia vs. Attorney-General of Anambra State (1977) 1 All NLR 118, Aniagolu, JSC held at page 128 thus:
The end result of an action, whatever its nature and no matter how framed, is that the party who approaches the Court obtains an order he seeks; the order he seeks may be declaratory or executory

The learned Counsel to the 1st and 2nd respondents filed a notice to discontinue the suit and withdraw same. The learned Counsel was invariably asking for the voluntary dismissal of the suit and the restoration of the status quo ante, a Latin maxim or phrase meaning, ?restore the situation that existed before something else (being discussed) occurred.? See Black?s Law Dictionary (supra) page 1542.
In Akapo vs. Habeeb (1992) 7 SCNJ 119, Karibi-Whyte, JSC held at page 140 that the phrase

meant:
the restoration of the parties to the position they were before April, 1985, when the respondents with force took over the management and control of the offices and property of the Ojora Chieftaincy family, hitherto under the control and management of appellant and the family Council
In Hanbury and Maudsley Modern Equity, 10th edition by Harold Greville Hanbury, pages 78-79 the learned author wrote concerning the issuance of interlocutory injunctions by Courts as follows:
The jurisdiction is related not to the most just method of protecting established rights, but to the most convenient method of preserving the status quo while rights are established. Interlocutory injunctions may be prohibitory, mandatory, or quia timet. Normally such an injunction remains in force until the trial of the action, but an interim injunction may be granted, which endures for some shorter specified period. If the parties consent, the interlocutory hearing may be treated as a final trial if the dispute is of law. But this will not be possible if the dispute is of fact, as affidavit evidence is unsuitable for such

issues.?
See Erinford Properties Ltd. vs. Cheshire County Council (1974) Ch. 261. At page 79 to 80 the author of Hanbury and Maudsley Modern Equity (supra) again wrote as follows:
Discontinuance of interlocutory injunctions ? If an interlocutory injunction is granted, the plaintiff has no right to its continuance if it becomes apparent that it was based on a wrong view of the law. Thus, in Regent Oil Co. Ltd. vs. J.T. Leavesley (Lichfield) Ltd., an interlocutory injunction granted to restrain the breach of a seven and a half year solus agreement was discharged when it appeared from subsequent decisions of the Court of Appeal that the agreement was void as an unreasonable restraint of trade.
As we have seen, failure to seek an interlocutory injunction to restrain the commission of a wrongful act will not necessarily preclude the plaintiff from later obtaining a final mandatory injunction to compel the defendant to undo the act.?
See (1966) 1 WLR 1210; Petrofina (Gt. Britain) Ltd. vs. Martin (1966) Ch. 146; Esso Petroleum Co. Ltd. vs. Harper?s Garage (Stourport) Ltd. (1968) A.C. 269 and Wrotham Park

Estate vs. Parkside Homes Ltd. (1974) 1 WLR 798.
The learned Counsel to the 1st and 2nd respondents filed a notice of discontinuance and withdrawal of the Originating Summons. This was akin to an undertaking, namely, ?1. A promise, pledge, or disengagement.? To ?undertake? is ?1. To take on an obligation or task? 2. To give a formal promise; guarantee etc, example, not to continue with the originating summons hence its withdrawal. See Black?s Law Dictionary (supra) page 1665. This appeal is of national interest. There is no sport Nigerians love like football. The crisis between the appellants and the 1st and 2nd respondents does not augur well for the administration of the Nigerian Football Association and Nigeria in general. The crisis does not portray Nigeria?s good image in the eyes of the international community or comity of nations. The Latin phrase is ?comitas gentium? or ?corrtoisie internationale.? In Magnus Smith vs. The Justice of Sierra Leone (1841) 13 E.R. 147 reported at page 1-4 of the Privy Council Judgments (supra) the Recorder?s Court in Sierra

Leone struck off the name of the appellant from the Rolls of a Legal Practitioner of that Court for contumelious conduct before that Court and also imposed certain fines on him. Learned Counsel was committed to prison for some days until the fine was paid. I shall reproduce the argument of the learned Counsel that represented the appellant and the respondents when the appeal came up for hearing before the Privy Council and the decision of Lord Brougham at pages 3-4 as follows:
Sir William Follet, Q.C., and Mr. Edmund F. Moore, for the Appellant, contended that the course taken by the appellant in objecting to the evidence given at the trial of the cause of Harper vs. Hillier, and moving the Court of the Recorder for a new trial, on the grounds stated in his notice of motion, was in strict accordance with the law and practice of her majestys Courts, as administered in this country and in the colony of Sierra Leone; and cited Dixon vs. Yates (7 Barn. and Add. 313), and Tatham vs. Wright (2 Russ. and Myl. 145), and after examining the proceedings and evidence, and commenting on the affidavits, they insisted that the treatment of the appellant

by the Court, in finding, imprisoning, and imposing upon him the payment of costs, and subsequently striking him off the roll of practitioners of the Court, was unjust, illegal, and oppressive, wholly unwarranted by the circumstances of the case, and not only entailing a grievous and irreparable injury upon him, but calculated to impair and bring into disrepute the due administration of justice in the colony.
Mr. Hoggins, for the respondents, insisted that the orders and proceedings against the Petitioner, were legal and proper, and ought not to be rescinded: and, on behalf of the respondent Lewis, he contended that having taken no part in the previous proceedings complained of, though present, and constituting part of the Court, at the time the order was made for striking the Petitioner off the rolls of the practitioners, he was improperly implicated and named in the appellants Petition: and he contended that the same ought to be dismissed, with costs. He cited Ex p. Elsam (3 Barn. and Cress. 597).
LORD BROUGHAM:- Their Lordships have fully considered the whole of the evidence before them in this case, and have attended also to everything

that has been urged by Counsel on both sides with great anxiety, in consideration of the nature and circumstances of the case. They are clearly of opinion that the order for striking out Mr. Smith off the rolls was without any foundation whatever, ought not to have been made, and must be rescinded. They are however of opinion that they can make no order respecting the fine imposed by the Court below upon Mr. Smith, but their Lordships are clearly of opinion, upon the whole of the evidence in this cause, that there is nothing whatever to affect, in any respect, the character of Mr. Smith. Upon the costs here they can make no order.
Mr. Moore Your Lordships judgment will reinstate Mr. Smith in his practice in Sierra Leone, with an unimpeached character, which is all we are anxious for.
I have alluded to this authority to show that a Court of law and equity should insist and ensure that Counsel move application strictly in accordance with the substantive law or Rules of and practice and procedure applicable in that Court. The remedies granted should be in conformity with the law or the Rules of practice and procedure. Thirdly, the

remedies granted are not, in the words of Sir Williams Follett, Q.C. leading Mr. Edmund F. Moore, for the appellant in the Privy Council was that the decision of the Recorder was ?unjust, illegal, and oppressive, wholly unwarranted by the circumstances of the case, and not only entailing a grievous and irreparable injury but calculated to impair and bring into disrepute the due administration of justice

The fact in Re A. Solicitor: Exp. Hales (1904-7) All E.R. Rep. 1050 stated by Darling, J., from pages 1051 to 1052 and A.T. Lawrence, J., from pages 1052 to 1053 were as follows:
?DARLING, J.:- I think this appeal should be allowed. It appears that the appellant had a claim against Fournet for work done for Fournet as a solicitor. Fournet was an undischarged bankrupt. He desired to tax the appellant?s bill of costs. To this the appellant objected on the ground that Fournet was an undischarged bankrupt, and had no intention of paying the costs. Upon that objection being made, Fournet said in effect: ?True, I am an undischarged bankrupt, but I have money, and I will put it in the hands of my solicitors, in order

that you may be safe.? He did pay more than sufficient to pay the bill into the hands of the respondent, who then wrote the letter of Dec. 11 to the appellant. In that letter he said:-
?Having regard to the statements made by your clerk to the master on our client?s application to tax your bill of costs, Mr. Fournet has today placed in our hands the full amount of your bills, so that? ? and this is important ? ?on the completion of the taxation we shall be in a position to pay you the amount certified by the master due to you.?
To my mind that is a definite statement by the respondent that on the completion of the taxation he would be in a position to pay the money. That means that the money will still remain in the respondent?s hands allocated to the payment of the taxed costs. I think it is important to notice that the word used is ?shall? and not ?should?. I understand the word ?shall? to mean that ?in consequence of what Fournet has done, I shall, on the completion of the taxation, be in a position to pay the money due to you.? This is another

way of saying, ?In consequence of what Fournet has done, on the completion of the taxation the money will still remains in my hands for the purpose of being paid to you.? In his affidavit the appellant said:
?On the faith of the said undertaking, and knowing that the money to meet my claim when ascertained by taxation was earmarked, I did not take any steps to enforce a prompt and due carriage of the order for reference, nor for the same reasons did I institute proceedings against Mr. Fournet which I otherwise should have done.?
Fournet died on the day that the summons with which we have to deal was issued. The respondent now declines to pay over the money necessary to discharge Fournet?s debt to the appellant, and gives as a reason that he himself is making a claim against Fournet?s estate for 77, and that he intends to hold this money in order to pay himself. Thereupon the appellant takes out this summons, and invokes the jurisdiction of this Court over one of its own officers.
Counsel for the respondent admits that we might make the order we intend to make, in certain circumstances, but he says this

letter is merely an undertaking given on behalf of his client by the respondent, and not a personal guarantee by him, and that the Court will, therefore, not make the order asked for. I do not think it is a personal guarantee in the sense that the respondent personally guarantee the payment of Fournet?s debt out of his own money, so that he would be out of pocket by paying the appellant. But I think it is a personal gurantee in the sense that it is a statement that Fournet having put funds into the respondent?s hands for the purpose of paying the appellant upon a certain event happening, that upon the happening of that event he will pay the money. His position is very much that of a stakeholder. I think a personal undertaking in that sense is quite sufficient to enable us to exercise the jurisdiction of the Court. Let us see whether the case comes within the rules laid down as to the circumstances in which the jurisdiction will be exercised. I prefer to take the definition given by Bowen, L.J., in Re Grey (1). The statement there is very accurate, and I think it is wide enough to cover this case. He says (1892) 2 Q.B. at page 447):
?The

solicitor in this case is in a situation which presents two aspects involving a double responsibility. He was a debtor of justice whose officer he was, to pay over the money which belonged to his client, and of which he had possession through the confidence placed in him in his professional capacity, and as an officer of the Court. There are in such a case two wholly distinct rights, the right of the client at law to be paid his debt, and his right to apply to the Court as a person whose confidence has been abused by a person who is an officer of the Court, and whom he would not have trusted unless he had been such an officer.?
It is perfectly plain to my mind that where there is no remedy by action for debt there may be this remedy because Bowen, L.J., says there are two wholly distinct rights. What happened? The appellant would not have trusted Fournet if Fournet had written a letter and said: ?I have got money enough to pay your bill.? Nor would he have altered his position on the respondent?s assurance that Fournet had money enough to pay the bill. Why he altered his position and thus brought himself within the rules was

because his confidence had been abused by an officer of the Court. He trusted the respondent where he would not have trusted Fournet. He trusted him because the latter said I have enough money to meet your bill, and it has been given to me so that on the completion of the taxation I shall be in a position to pay you the amount certified due to you by the master.
It seems to me that where a solicitor still has money in his possession confided to him by his client for a particular purpose to be paid over on the happening of circumstances which have since happened, it would be dishonorable for that officer to retain the money and doubtless do that which he desires to do ? namely, pay himself the sum which he himself claims against his client. It was laid down by Lord Esher, M.R., in Re Grey (1) (ibid. at page 443) that this jurisdiction which is now invoked exists for the purpose of ?enforcing honourable conduct on the part of the Court?s own officers.? Although there may be no case in which it has been said that the Court will use this power to prevent the commission of a breach of trust, my own opinion is that the Court should and

would make use of it if there is a declaration of trust. I think in this case the letter constitutes a declaration of trust whether it is a guarantee in another sense or not. I think this was a declaration of trust by the respondent, and one that made the appellant alter his position, and that being so, I think that the appellant, although not a client of the respondent, has the right to come to this Court and ask it to prevent this dishonourable conduct on the part of a solicitor, that dishonourable conduct being the commission of a breach of trust against the appellant, who has altered his legal rights in consequence of the declaration of trust. For these reasons I think the appeal must be allowed.
A.T. LAWRENCE, J.:- I am of the same opinion. I agree with the contention of Counsel for the respondent that mere dishonourable conduct does not give the Court jurisdiction to apply this summary remedy. The dishonourable conduct which gives the Court jurisdiction in such cases is dishonourable conduct to the applicant in the course of legal proceedings, and if the applicant can show that there has been dishonourable conduct to him prejudicing his position it

is then that he can come to the Court and say: ?I ask for the interposition of the Court by way of this summary remedy.? What was the position in this case? The client was an undischarged bankrupt. He owed a bill of costs to his late solicitor, and he wanted to have that bill taxed, as he had a right to do. The solicitor, when the matter came before the master, said this was a mere vexatious proceeding by an undischarged bankrupt to put him to the costs of going through a long taxation, and when it is done he would get nothing. I can easily imagine, upon that being stated to the master, the clerk on the other side saying: ?This is not a vexatious proceeding, and the client is not an undischarged bankrupt, and the bill will be duly paid.? The master accordingly made the order for taxation. When the clerk goes back the respondent, on being informed of what had taken place, communicated with Fournet, who was really undischarged bankrupt. That fact placed him in an awkward position, because he might be proceeding with a matter which might be extremely vexatious to the appellant. He communicated with his client and told him the position, and

Fournet replied: ?I have the money, and I will hand it over to you now,? and he did. The respondent thereupon wrote the letter of Dec. 11. What does that letter mean? It means, ?I am holding this sum of money to furnish the amount of your costs. I am not proceeding vexatiously, but bona fide to tax the bill of costs, and when the amount is due we? (i.e. the respondent) ?shall be in a position to pay you the amount certified due to you by the master.? How can litigation or legal proceedings be conducted justly or honourably if a statement of that sort is not to be taken as true? I think that the statement in the letter was not a personal undertaking in the sense that the respondent undertook to pay the money out of his own pocket, but was personal in the sense that he said: ?We? (meaning the name of the firm under which the practiced) ?have this fund which we hold appropriated to this purpose, and from which we will pay you any amount to which you establish your right.?
That was the position created by the letter between the parties. The taxation proceeds, and a sum of 80 10s.7d is found to

be due to the appellant. In the meanwhile, a long time having been allowed to elapse by the appellant on the faith of that letter, the respondent says: ?The position between myself and my client has altered. Costs are owing to me from him, and therefore, I propose to appropriate this sum to my own purposes.? I think that is one of the cases in which the Court should interpose and say: ?No; if you write letters of this kind and make these statements, which are acted upon by other persons, you cannot afterwards turn round and appropriate the money merely because your position had changed.? That would be, in the sense in which the Court uses the term, dishonourable conduct. I do not say that the respondent does not think that he has the right to protect his own interests, but I am of opinion that he is not right in so thinking. I quite agree that Re Grey (1) was a case in which the Court was dealing with a case arising between a solicitor and his client, and in that respect, no doubt, Counsel for the respondent was right in drawing the distinction between that case and this, and is right perhaps in saying that this letter was not a

personal guarantee. But it is a personal undertaking to apply that fund to a particular purpose, and I think therefore that the respondent is bound to pay over this money.?

Rules 30 and 31(1) and (3) of the Rules of Professional Conduct for Legal Practitioners, 2007 commencement date being 2nd January, 2007 provides as follows:
?30. A lawyer is an officer of the Court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice.
31(1) A lawyer shall always treat the Court with respect, dignity and honour.
xxxxxxxx
(3) A lawyer who fails to comply with any undertaking given by him either personally or on behalf of his client to a Court is prima facie guilty of professional misconduct.?

H.S. Ardzard, Esq. is an officer of this Court. Rule 55(1)-(2) of the Rules (supra) provides as follows:
?55(1) If a lawyer acts in contravention of any of the Rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall be guilty of a professional misconduct and liable to punishment as provided in Legal

Practitioners Act, 1975.
(2) It is the duty of every lawyer to report any breach of any of these Rules that comes to his knowledge to the appropriate authorities for necessary disciplinary action.?

Having voluntarily discontinued and withdrawn the Originating Summons and all other processes in order to restore the parties to the status quo bellum ante, where it was intended to revive or resuscitate the summons, the remedy lies in the provisions of Order 50 Rules 3-5 of the Federal High Court (Civil Procedure) Rules, 2009 which provides as follows:
?3(1) Except as provided by Rule 2 of this Order, a party may not discontinue any action or counter-claim, or withdraw any particular claim made by him therein without leave of the Court, and the Court hearing an application for the grant of the leave may order the action or counter claim to be discontinued or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.
(2) An application for the grant of leave under this Rule may

be made by summons or motion on notice.
4. Subject to any terms imposed by the Court in granting leave under Rule 3 of this Order, the fact that a party has discontinued an action or counter-claim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same cause of action.
5. Where a party has discontinued an action or counter-claim or withdrawn any particular claim made by him therein, and he is liable to pay costs to any other party of the action or counter-claim or the costs occasioned to any other party by the claim withdrawn, then if, before payment of those costs, he subsequently brings an action for the same or substantially the same cause of action, the Court may order the proceedings in that action to be stayed until those costs are paid.?
The 1st and 2nd respondents remedy is by filing a ?subsequent action? and no more. Even then in Agbeyegbe vs. Ikomi & Anor. (1953) 12 WACA 383 the suit was struck out on 7th July, 1938. The learned trial Judge relisted the suit on 15th September, 1947 on the application of the plaintiff after a lapse

of about nine years. Lord Oaksey, sitting in the Privy Council held at pages 385-387 as follows:
?Mr. Justice Rhodes in giving judgment did not comment upon the nine years delay which had elapsed between the sale and the application to have the case relisted or upon the reasons given by the appellant to excuse the delay, but found that owing to the fact that only two notices of the sale had been given the sale was irregular and null and stated that he was satisfied from the evidence that the appellant had sustained substantial injury by reason of the irregularity.
On appeal by the respondent to the West African Court of Appeal the appeal was allowed, the Court (Sir John Verity, C.J., Sir Henry Blackall, P., and Lewey, J.A.), being of opinion that in the exercise of his discretion the trial Judge did not appear to have taken into consideration all the relevant circumstances including such questions as to the extent of the delay in making the application to re-list the case, the reasons for the delay, the nature of the claim and the effect of granting leave upon the rights of the respondent.
Their Lordships are in agreement with the West

African Court of Appeal in thinking that the learned trial Judge did not exercise his discretion judicially on these matters.
A number of technical points have been argued on both sides JUSTICES. It has been argued for the appellant that the respondent ought to have appealed against the order to re-list and that the laches was not taken as a formal point at the earliest possible moment. The parties, however, were not legally represented at the hearing to re-list, no note was taken of their arguments at that stage, the question of delay was put in the forefront of the cross-examination of the respondent at the hearing and Counsel for the appellant JUSTICES recognized that the delay which had occurred was the real difficulty which he had to face.
In cases of laches the law was stated by Lord Blackburn in Erlanger vs. New Sombrero Phosphate Company (1), at page 1279:-
?In Lindsay Petroleum Company vs. Hurd (2) it is said: ?The doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct

done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. The two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy? I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required,

and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it. The determination of such a question must largely depend on the turn of the mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.?
The length of the delay and the nature of the acts done during the interval in the present case in their Lordships? opinion cause a balance of justice in favour of the respondent who had been in possession of the land for nine years at the time of the trial.
Reliance was placed on behalf of the appellant upon the cases of Weld vs. Petre (3) and Clifford vs. Clifford (4) but in their Lordships? view these cases are not in point in the present case.
Weld vs. Petre (3) was a case of a mortgage and it was expressly stated by Lord Russell of Killowen that delay in exercising the rights of a mortgagee stood upon an entirely different footing from delays in cases such as the present where the Court is asked to re-open a matter which has been already decided. Clifford vs. Clifford

(4) was a case of nullity of marriage and in such a case it is obvious that there may be circumstances which induce the delay which have no resemblance to the facts of the present case. In no other case to which their Lordships? attention has been drawn has there been anything like a delay of nine years and having regard to the length of the delay, the inadequacy of the explanation of the delay and the consequences of setting aside the sale of land as against a bona fide purchaser for value who had been in occupation of the land during the whole period and had apparently altered the buildings thereon, their Lordships are of opinion that the case ought not to have been re-listed and having been re-listed ought to have been dismissed.
Their Lordships will therefore humbly advice Her Majesty that this appeal ought to be dismissed. The appellant must pay the costs of the appeal.?
Sections 169 and 173 of the Evidence Act, 2011 reads as follows:
?169. When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to

believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person?s representative in interest, to deny the truth of that thing.
xxxxxxxxx
173. Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.?
See Oyeyemi vs. Commissioner for Local Government, Kwara State (1992) 2 SCNJ (Pt.2) 266; Joe Iga & Ors. vs. Ezekiel Amakiri & Ors. (1976) 11 SC at 12-13; Rowrafric & Far Eastern Ltd. vs. Arbenake & Ors. (1958) WRNLR 92; Ukaegbu vs. Ugoji (1991) 6 NWLR (Pt.196) 127 at 143-144; Ehidimhen vs. Musa (2000) 4 SC (Pt.2) 157 at 175-176 and Osirinde vs. Ajamogun (1992) 6 NWLR (Pt.246) 156.
?
The justifiable remedy is to allow this appeal, set aside the decision of the Lower Court and dismiss

the application of the 1st and 2nd respondents upon which these offensive remedies were anchored. This appeal is allowed. The decision of the Court below is set aside. The application by the 1st and 2nd respondents seeking to relist the originating summons previously struck out by Allagoa, F.J., is hereby dismissed. The 1st and 2nd respondents are to jointly and severally pay N50,000.00 cost to each appellant.

Other Citations: (2016)LCN/8959(CA)

Alhaji Aminu Maigari & Ors V. Yahaya Adama & Ors (2016) LLJR-CA

Related Posts:

More Posts

The Things You Must Do to Prove Negligence in a Personal Injury Case

Safeguarding Your Online World: What CVE Vulnerabilities Mean to You

Section 870 Companies and Allied Matters Act (CAMA) 2020

Section 869 Companies and Allied Matters Act (CAMA) 2020

Leave a Reply Cancel reply