Mobil Oil Nigeria Plc. V. Kena Energy International Limited (2003)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

The applicant is praying for a stay of proceedings of the lower court. The application is on notice brought under Order 3 rule 3 (1) (3) of the Court of Appeal Rules and sections 16 and 18 of the Court of Appeal Act, Cap. 75 respectively. It is supported by a 24 paragraph affidavit and a further and better-affidavit of 5 paragraphs, both sworn to by one Mike Inyang, Esq; a counsel in the Chambers of learned Senior Advocate for the applicant.

The applicant is relying on their affidavits.

In arguing the motion, learned Senior Advocate submitted that to succeed in an application for stay of proceedings, applicant must not only show but exhibit the notice of appeal to show that there is infact, a valid appeal as the applicant has done. In support of this proposition. case of Caribbean Trading and Fidelity Corp. v. N.N.P.C. & Anor. (1991) 6 NWLR (Pt. 197) 352, 361-2) was referred to.
Learned Counsel further submitted that in addition to the existence of a valid appeal, they have also prayed for departure from the rules to indicate their desire to have the main appeal be heard since, according to counsel, if the appeal is not considered, the applicant/appellant will be prejudiced in the proceedings at the lower court.

That the applicant has also shown a special circumstance, that is, where by, a document not pleaded was admitted to warrant a stay of proceedings. The case of Okeke v. Yaroson & Anor. (1999) 11 NWLR (Pt.625) 106, was alluded to where it was held that a ground of appeal should show substantial arguable grounds. That in the case at hand, the applicant has shown in their grounds of appeal that a document not pleaded was wrongfully admitted into evidence; and this is a clear example of substantial arguable ground to warrant a stay.

Learned Counsel referred to case of Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156, 190 and further contended that Saraki v. Kotoye (supra) is still a good valid law and has not been overruled by the Supreme Court. Appellant/applicants counsel contended that the respondent’s counter-affidavit has not controverted or denied their assertions in their affidavits. That the counter-affidavit of 36 paragraphs dwelt on extraneous matters that are irrelevant to the prayers of the applicant. Learned Senior Advocate urged upon us to grant the prayer for stay of proceedings.

In reply, learned Counsel for the respondent relied on their 36 paragraphs counter-affidavit deposed to by one Patrick Oparah, Esq., a counsel in Chambers of respondents counsel and submitted that the grounds of appeal exhibited by the applicant are not substantial or argueable grounds, and that for the applicant to succeed, they must show that the applicant is likely to suffer more than the respondent if it is refused, and referred to case of Intro-Shipping Ltd. v. Logos Trading (2002) 14 NWLR (Pt.788) 570, 586.

Learned Counsel also urged, the court to look at the antecedent or history of the case and referred to paragraphs 4-14 of the counter-affidavit, which shows that the case at the lower court had to re-start de novo three times, and that the matter was also on appeal before this court in case of Mobil Oil (Nig.) v. Kena Energy (2001) 1 NWLR (Pt.695) 555 and contended that the court should look into the appropriateness of appealing in a matter that can convincingly be brought in a substantial appeal, rather than in an interlocutory matter and urged the court to hold that where such exist as done by the applicant, the grant for stay, should be refused, and referred to case of Lawal Osula v. U.B.A. Plc. (2003) 5 NWLR (Pt.813) 376 and Umenzekwe v. Azike (2003) 4 NWLR (Pt. 809) 66, 80 – 1, and Eze v. Okolonji (1997) 7 NWLR (Pt.513) 515, 529.

Learned Counsel urged the court to consider the order made by this court for accelerated hearing in the case of Mobil Oil (Nig.) v. Kena (2001) supra, and that the lower court had made an order on the applicant for bond of security, which has not been complied with and that the applicant is not consistent in that after the appeal was filed, the same appellant/applicant went down to the lower court and filed an application before the lower court seeking leave to cross-examine the plaintiff/respondent. That this shows that the applicant is prepared to continue with the case at the lower court, and contended that the application for stay of proceedings is made mala-fide and is intended to delay the hearing of the substantive matter in the court below. Case of Amadi v. N.N.P.C. (2000) 10 NWLR (Pt. 674) 76, 100, was referred to and, learned Counsel for respondent urged us to refuse the grant for stay of proceedings and dismiss the motion.

In reply on point of law, learned Senior Advocate contended that the respondent’s counsel had gone into the appeal proper, whereas it is an interlocutory application and he urged the court to disregard the appeal issues raised.

Learned Senior Advocate contended that the case Intra-Shipping (supra) is in-applicable to this case because 1, the case as presented was not initiated by the appellant/applicant, 2, that though the matter has come up 3 times, it was not caused by the applicant, and that therefore, the cases relied upon by the resp,ondents are not applicable to this case at hand because the cases cited by the respondent have nothing to do with interlocutory appeal on rejection or admission of evidence, and that moreover, the cases cited have not overruled Saraki v. Kotoye (supra). That as to security for costs, it is not a requirement for stay of proceedings. As to Amadi v. N.N.P.C. (supra) the Senior Advocate, submitted that a party cannot waive a constitutional right, and Amadi s case had not overruled Saraki v. Kotoye (supra) and he urged the court to grant the application.

As earlier stated, the application is for stay of proceedings in the lower court. The nature of stay of proceedings is not a light matter. It is such a serious, grave and fundamental disruption of the fight of the other party to have his case heard and disposed of within a reasonable time. In other words, a stay of proceeding is the antithesis to a speedy hearing of the case; and connotes a punitive element on the respondent, the hearing of whose claim will be delayed by the order of stay. It is therefore not to be granted until the cons and pros are properly weighed. See Okeke v. Yaroson (1999) 11 NWLR (Pt.625) 106, 120 -125;Akilu v. Fawehinmi (No 2) (1989) 2 NWLR (Pt.102) 122.

In the case of Eze v. Okoloji (1997) 7 NWLR (Pt.513) 515, 527-531, Tobi, (JCA) as he then was, listed a number of factors or principles, to be taken into consideration in applications for stay of proceedings. Of course, the factors so enumerated are inexhaustive, and not all of them are applicable to every case. Each case has its own peculiar principle.

Some of the principles to be considered in this application are as follows:
1. All courts of record have inherent power to grant or refuse application for stay of proceedings. The only court that cannot stay its own proceedings is the Supreme Court. But where there is pending before an appellate court, an application for leave to appeal, then the lower court cannot grant an application for stay of proceedings. In such a situation, such power enures when the appellate court so orders.

2. The first consideration in an application for stay of proceedings, is whether the applicant has a valid cause or right of action.

This is related to the jurisdiction of the court to entertain the cause or action brought to court. If the applicant has no right in the first place to bring the application for stay, the court itself has no jurisdiction to hear the application.

3. In order to consider an application for stay of proceeding, there should be a pending appeal and a valid one for that matter. If the applicant’s pending appeal is either incompetent or invalid, a court of record will not entertain the application. See cases of Olawunmi and Others v. Alhaji Mohammed and Others (1991) 4 NWLR (Pt.186) 516; The Provost, Alvan Ikoku College of Education Owerri and Others v. Amuneke (1999) 9 NWLR (Pt.213) 49; National Bank of Nigeria Ltd. v. NET (1986) 3 NWLR (Pt.31) 667.

4. To grant an application for stay of proceedings, the pending valid appeal must have and exhibit argueable ground or grounds of appeal. It does not mean however, that the argueable grounds must or will succeed. It is enough if the grounds are argueable in law, and there is a good chance of success. See Carribean Trading and Fidelity Corp. v. N.N.P.C. (1991) 6 NWLR (Pt.197) 352; The State v. Ajayi and Anor. (1996) 1 NWLR (Pt.423) 169.

But where the pending appeal is found to be frivolous, or unmeritorious, or oppressive and not arguable in law, the application for stay of proceedings will be refused. To come to such decision that an appeal is frivolous, it means the Judge has to look into the record of appeal which is normally annexed along with the application.

The Judge should as well look into the ruling of the lower court. But this however, should not extend to deciding the pending appeal, as it will be premature at this stage to do so. It is not for the Judge considering the application for stay to declare that the grounds of appeal are frivolous or not arguable. The court should keep that reason to itself and just refuse the application for stay. It is said that “here the court pretends, as it should pretend, for once and for good”. This is to avoid a situation where the court could be accused of descending into the arena even before the appeal is argued.

5. Another important factor to consider is the special and exceptional circumstance to be shown by the applicant to warrant the court to grant him a stay of proceedings. This is so as the application is not granted, as a matter of routine as it is not an automatic or mechanical relief slavishly followed after filing an appeal. In every matter or suit before a court of law, whether in its original or appellate stage of proceedings, the court will consider the competing rights of both parties including the applicant and the respondent to justice. Therefore, the court will take into consideration the equity and justice of the application.

6. Related to the factor No.5 above, is consideration of hardship. Stay of proceedings will not be granted if it will cause greater hardship, than if the application is refused. See Kigo v. Holman (1980) 5 – 7 SC 60; Arojoye v. U.B.A. and Ors. (1986) 2 NWLR (Pt.20) 101. Issue of hardship is a matter of fact that can be ascertained from the affidavit evidence of the parties.

7. Another important consideration in an application for stay of proceedings is the need to preserve the res or preservation of the subject-matter of litigation. The courts have an obligation to protect the res for the purpose of ensuring that the appeal, if successful will not be rendered nugatory. See Kigo v. Holman (supra); Shodeinde v. Ahmadiyya (1980) 1 – 2 SC 163. But where it is shown by affidavit evidence by say the respondent, that the res will not be destroyed, or there is infact no res, an application may not be granted. See Yinka Folawiyo and Sons Ltd. v. T.A. Hammand Project Ltd. 3 FRCR (1977) 373.

8. Also, where an action in the court below is an abuse of court process, an application for stay of proceedings will be granted.

9. Another principle that falls for consideration in an appeal against interlocutory order of a lower court is if that interlocutory order has finally disposed of the case. If the interlocutory order of the lower court on which an appeal is made does not dispose of the case between the parties, it will be wrong to stay proceedings because of the appeal lodged by an aggrieved party. See Arojoye v. U.B.A. and Another (supra) but where the interlocutory order appealed against will, if successful, dispose of the case, then stay of proceedings will be granted. See Obinyiriuka v. Aliche and Another (1991) 4 NWLR (Pt.183) 87.

10. Another issue in considering an application for stay of proceeding is when an action is an abuse of court process, then stay of proceedings will be granted. A typical example of abuse of court process is where a suit is duplicated or where a party employs improper and perverse procedure to obtain an advantage undeservedly.

11. In an interlocutory appeals, where the complaint of the applicant can be conveniently dealt with together in an appeal against the final decision of the court, thus, in the event that the case is determined in favour of the respondent, an application for stay of proceedings should be refused.

12. An applicant for stay of proceedings must come with clean hands because what he is asking is an equitable relief. Equity will not assist the unclean. That is why the court has to look into the antecedents of the parties.

13. It is important to stress that initiation of a suit in a court of law demands that the suit will be heard expeditiously and completed without any inhibition midway. That is part of the essence of the rule of fair hearing as enshrined in S. 36 of the 1999 Constitution of Nigeria. Therefore, where an application for stay of proceedings is intended to merely stop or suspend the proceedings, it will be refused. Because of the harm it will cause to the quick dispensation of justice in the judicial process, Judges have been advised to exercise their discretion in favour of an applicant most sparingly. The application is being turned of recent, to almost an abuse by parties who, on having the slightest disagreement with any ruling of a trial Judge will resort to the interlocutory remedy of stay of proceedings. Some applicants on seeing the weakness of their clients case would resort to application for stay and waste the time of the other party and the court. Courts are enjoined not to encourage such unwholesome practice.

It is instructive to be reminded of the Supreme Court decisions in Akilu v. Fawehinmi (No.2) (supra), where it was cautioned that “an action should not be stayed unless the applicant has established beyond doubt that the action ought not to go on”, See also the case of Okorodudu v. Okoromadu (1977) 3 SC 21, and the recent case of Amadi v. NNPC (2000) 10 NWLR (Pt.674) 76, 100, where Uwais, (CJN) graphically bemoaned the abuse to which some counsel misuse the right to appeal on interlocutory matters as follows:-
“The chequered history of this case once more, bring to light, the dilatory effect of interlocutory appeal on the substantive suit between parties.

The final judgment on the interlocutory appeal is delivered today by this court. It has thus, taken (13) thirteen years for the case to reach this stage. With the success of the plaintiff’s appeal before us, the case is to be sent back to the High Court to be determined, hopefully, on its merit after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on merit in the proceedings as the case may be.
I believe that counsel owe it as a duty, to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary preliminary objections as the one here; so that the adage justice delayed is justice denied may cease to apply to the proceedings in our courts” (Italics are mine for emphasis).

And that now takes me to the main reasons as to why the applicant brought this application for stay of proceedings. The reason, is that in the course of proceedings in the court below, the respondent who was the plaintiff, was giving evidence through P.W.1, and a document was sought to be tendered into evidence. The applicant’s counsel opposed and was overruled. The document was then admitted into evidence by the lower court, and hence, the interlocutory appeal. See paragraphs 8 of applicant’s affidavit in support of the application.

I have carefully considered the affidavit of the applicant as well as the further and better affidavit both deposed to by Mike Inyang, Esq. especially, paragraphs 8, 9, 10 and 16 (i)-(vii) of the affidavit that provide as follows;-
“8. That in the course of trial at the trial court on the 6/2/2003, the learned trial Court admitted an unpleaded document inspite of objection by the applicant’s counsel. A certified true copy of the proceedings of the 6/2/2003, containing the decision of the trial court is hereby, exhibited and referred to as exhibit A.

9. That the applicants were dissatisfied with the decision/ruling of the trial court, delivered on the 6/2/2003, hence, instructed my senior colleague in chambers to lodge a notice of appeal in the matter, A copy of the said notice of appeal is hereby exhibited and referred to as exhibit B.

10. That I am informed by my senior colleague in chambers, Dr. T.C. Osanakpo (SAN) and I verily believe him that the grounds of appeal in the notice of appeal deposed to in paragraph 9 here, are of only grounds of law.

16. That Dr. T.C. Osanakpo (SAN) informed me and I verily believe him in respect of the following facts namely:
(i) the applicants are seeking their constitutional rights to appeal in this matter;
(ii) the appeal is predicated on the admission or rejection of evidence that arose during the course of trial at the trial court;
(iii) the trial court allowed documentary evidence not pleaded by the plaintiff/respondent as exhibit R on the 6/2/2002;
(iv) that the learned trial Judge wrongly admitted an unpleaded document during the course of trial at the trial court on the 6/2/2003;
(v) the piece of unpleaded document admitted as evidence by the trial court on 6/2/2003, is crucially relevant to the case of the applicants that are seeking its rejections;
(vi) the notice of appeal deposed to in paragraph 9 hereof contain arguable points of law with reasonable prospects of success in favour of the applicants;
(vii) the application is to enable this Hon. court determine whether the documentary evidence sought to be tendered by the plaintiff/respondent on the 6/2/2003 is admissible”.

The further and better affidavit of the applicants is only intended to show the ruling of the lower court in which an application for stay of proceedings pending the appeal was refused by the trial court on 11/3/2003. The ruling is exhibit D.

Now, putting the affidavits of the applicants against the principles or factors to be considered in an application for stay of proceedings as enunciated in Eze v. Okolonji (supra) by Niki Tobi, (JCA) as he then was, it can be seen that in the first place, the applicants have a valid cause or right of action before the court. Applicants are valid defendants in suit No. FHC/CA/CS/C/98. Also, this court has taken judicial notice of the fact that the applicants have filed a valid pending appeal before this court. It is appeal No. CA/C/18M/2003, and the notice of appeal and grounds of appeal have all been exhibited as exhibit B in paragraph 9 of the affidavit of Mike Inyang, dated 18/2/2003 and filed same day. See Olawunmi and Others v. Alhaji Mohammed and Another (1991) 4 NWLR (Pt.186) 516.

Also, the grounds of appeal as shown in exhibit 7B of the affidavit of Mike Inyang in support of the application are based on grounds of law and are arguable grounds of appeal with a probable chance of success. The two grounds shorn of their particulars read thus:
“A. The learned trial Judge erred in law by wrongly admitting in evidence an unpleaded document.
B. The learned trial Judge erred in law by interfering that an un pleaded document is admissible in law”.

Therefore, the grounds being arguable with a good chance of success has satisfied one of the basis for grant of stay of proceedings. See General Oil Ltd. v. Oduntan and Anor. (1990) 7 NWLR (Pt.163) 423; Caribbean Trading and Fedility Corporation v. NNPC (supra) and The State v.Ajayi and Anor. (supra). The learned Senior Advocate for the applicants has argued that the special and exceptional circumstances in their application is that the document admitted into evidence by the trial court for which they sought its rejection is so vital to the case of the applicants. I have carefully considered the claim of the plaintiff/respondents before the lower court. See paragraphs a-f of the writ of summons of the plaintiff/respondent at pages 1-2 of the ruling of the trial court, dated 11/3/2003.

Paragraph (e) thereof is claiming N11,140,740.00 as accumulated interest and charges on bank facilities utilised in the contract. I am not satisfied that the document in question is crucial to the case of the applicant, though it is relevant.

In considering an application for stay of proceedings, the competing interest of the parties must be taken into consideration.

In the counter-affidavit of the respondent sworn to by Patrick Oparah, Esq. paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 are relevant.

Paragraphs 6-9 provide as follows:
6. That in the course of the hearing, the respondents sought for and obtained an order of the lower court that its barge, which was wrongly detained by the appellant be released and the lower court granted the same application.
7. That the appellants/applicants were stringely of the opinion that the said barge should not be released and appealed to this court against the order of the lower court as aforesaid. Furthermore, the appellants challenged the jurisdiction of the lower court to entertain the suit and their application was dismissed by the lower court and they subsequently filed another appeal.
8. That both appeals as aforesaid were consolidated, heard and both dismissed by this Honourable Court on Tuesday, 23rd May, 2000.
9. That in dismissing the appeals as aforesaid, this Honourable Court ordered that the substantive suit at the lower court, should be determined expeditiously by the lower court and which order is still subsisting”.
(Italics is mine)

It is pertinent to note that the applicants have not countered the strong assertions by a further further better affidavit. The assertions in paras. 6 – 9 of the counter-affidavit of the respondents are very serious. This clearly shows the flagrant abuse of the application for stay of proceedings. From 1998 to 2003 is a period of six years, and within this six years, the applicants have appealed to the Court of Appeal, three times on issues that could conveniently be heard and determined at the trial court, and in which any party that is dissatisfied could make it a ground of appeal in a substantive appeal rather than an appeal on an interlocutory matter.

This is a typical case of abuse as stated by the Supreme Court in the case of Okorodudu. v. Okoromadu (1977) 3 SC 21 and recently in Amadi v. N.N.P.C. (supra) where Uwais, (CJN) stated when it is desirable to take preliminary issues along with substantive case in order to save time for litigants and the court. His Lordship had this to say:-
“…Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on merit in the proceedings as the case might be. I believe that counsel owe it, as a duty, to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary objections as the one here”.

I hold the view that in considering the competing interests of the applicants and the respondent, if the application for stay of proceedings is granted, the respondent will suffer more than the applicants because the main reason why the applicants are seeking for stay is that, they want to test the admissibility of exhibit R into evidence, I have already held that the document is not so crucial to the case of the applicant, since it will not determine the substantial case between the parties at the lower court. If exhibit R is admitted or rejected in the lower court, any party aggrieved by its rejection or admission can conveniently appeal along with appeal on the substantive case. See Amadi v. NNPC (supra).

Moreover, grant of stay of proceedings is a discretionary exercise that must be exercised judicially and judiciously and taking into account, the antecedent of the case where it is established as shown by the counter-affidavit of the respondent, the applicants have regularly appealed on each and every over-ruling of their objections by the lower court.

The conduct of the applicant cannot lend support for stay of proceedings.

Stay of proceedings is an equitable remedy and will not be employed to assist a party that has not come with clean hands. The application for stay is therefore, refused.

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Other Citations: (2003)LCN/1450(CA)

Alhaji A.F. Alawiye V. Mrs E.A. Ogunsanya (2003)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A. 

This is an appeal against the decision of the High Court Ogun State of Nigeria, sitting in Ijebu Ode, presided over by Hon. Justice J. Mabogunje. The judgment was delivered on 10th October, 1995.
In that court, the plaintiff now respondent, sued the defendant now appellant for damages for (1) slander, and (2) libel. To wit that on 6th August, 1993, the defendant at the Central Mosque ,Ijebu Ode, uttered the following words concerning the plaintiff; and thereby, defamed the plaintiff in these words in Yoruba, saying the words (supplied) and for which the English translation is “my brothers in Islam, you should not believe what Alhaji Osikoya told you as the truth, because he is telling a lie to cover up the principal of the school. Both of them are lovers, Alhaji Osikoya is allowing his lust to over ride his religious duty.”

That on the 13th August, 1993, in and around the Ijebu Ode Central Mosque, the defendant caused to be published concerning the plaintiff words which defamed the plaintiff in a handbill titled “Ikede” which may mean notice or information. In the said Ikede, the following words were written in Yoruba; which words are supplied, and interpreted in English language thus, ”This is to inform all brothers in Islam of the outcome of the meeting held after last Friday between myself and Alhaji Fatai Osikoya (Fisko) together with some Muslim brothers and committee on the issue of the shortcomings of the principal of Moslem Comprehensive High School. It is clear to Fatai Osikoya that all the allegations I made are true. It is clear to Fatai Osikoya to investigate all the allegations I made, but he failed to do so because we have learnt that the principal is his mistress. “For each defamation in slander and libel, the plaintiff claimed the sum of N250 million, the total is N500 million naira”.

In the suit, the plaintiff filed a further amended statement of claim and the defendant also filed a further amended statement of defence, upon which the suit was considered and determined by the learned trial court on 10th October, 1995. In the judgment of the court are contained the following in the last paragraph; “After considering the evidence before the court, the fact that the slander and the libel were published on different days, the present inflationary trend and the sinking value of the naira, I award N1,000,000.00 (One million naira) for the slander and N2,000,000.00 for the libel.” The defendant was dissatisfied with the judgment, and has appealed to this court.

The record shows that the defendant first filed a notice of appeal dated 13th October, 1995 of two grounds; and filed another dated 4th December, 1995, of seven grounds. The grounds in the notice of appeal of 13th October, 1995, are contained in the latter notice of 4th December, 1995. The appellant filed his brief of argument in this court on 18th February, 1998. In the brief the appellant submitted the following four issues for determination of the appeal. They are:
(a) Was the evidence of the witnesses of the respondent in respect of the publication of the alleged slander credible enough as to be believed in proof of the case? The issue is distilled from ground 2 of the appeal.
(b) Did the lower court considering the issue as to whether the appellant uttered the alleged slanderous statement properly evaluate and ascribe probative value to the evidence proffered by both parties. Distilled from grounds 1, 3 and 7.
(c) Did the respondent prove the publication by the appellant of the alleged libel contained in the exhibit A? distilled from grounds 4 and 5.
(d) Whether in awarding cumulative damages of three million naira, the lower court took into consideration and applied. The settled principles of law which ought to guide the court in making such award.”

The respondent also formulated three issues, which he submitted are more appropriate for determination of the appeal. They are;
“(a) Whether the findings of fact pursuant to evaluation of evidence in this suit by the trial court are perverse on unsupportable by other evidence on record as to warrant a reversal?
(b) Was the learned trial Judge wrong in holding that the appellant published the libelous leaflets?
(c) Whether having regard to the extent of the coverage of the defamatory publication the status of the plaintiff; the attitude of the defendant, and grossly reduced value of the naira, the award of the sum of N3 million naira is not too low?”

In the cross appeal filed by the respondent. The respondent/cross-appellant adopted its issues (c) or 3 above, as the sole issue of the cross-appeal, to wit, whether having regard to the extent of coverage of the defamatory publication, the status of the plaintiff, the attitude of the defendant and the grossly reduced value of the naira, the award of the slim of N3 million is not too low.” Upon this issue, the cross appellant urged the court to exercise its jurisdiction under section 16 of the Court of Appeal Act; and review upwardly the order of damages awarded by the learned trial Judge.

The cross appellant urged the court to dismiss the appeal, and allow the cross appeal, because the learned trial court had not properly allowed the following considerations to affect her award; viz: the status of the plaintiff, as highly reputed school principal, a moral crusader, matron of all Catholic youths in Ijebu Ode Diocese, a married woman of substance, with two children one of who is a lawyer and the other a student of architecture, a doctorate degree holder, a role model to students and teacher;
(2) The fact that the publication took place on different days for the slander and libel on the one hand and libel: The geographical spread of the defamation in Ijebu Ode, Lagos, Benin, Ibadan, Lokoja, Ruhei Homerton and London. The absence of any retraction and apology and the lack of remorse by the defendant, before and during the trial. The continuing sinking value of the naira, and the acute inflation of the country.”

The appellant filed an appellant’s reply brief. Besides reiterating that the award made by the trial court in favour of the respondent was excessive as it was based on the principles of aggravated damages, which the respondent did not ask for, the appellant respondent in the appellant’s reply brief to the counter-claim contained in the respondent’s brief. In this connection the appellant adopted the arguments contained in his issue (d) or 4 and cited recent authorities in Basorun v. Ogunlewe (2000) 1 NWLR (Pt.640) 221 in which Aderemi, JCA, and Nzeako, JCA, both separately expressed the view, that the award of damages or quantum of it is not the primary factor in an action for defamation, but the vindication of the good character of the plaintiff. The appellant in response to the counter claim submitted that the award of cumulative sum of N3 million made by the court below is excessive and urged the court to reduce it, if the substance of the submission on appeal fails. He submits that the appeal should be allowed.

I will in this appeal consider together the set of issues formulated by both the appellant and the respondent where the itemized issue has the same theme; together with the issue formulated in the counter claim. The sole issue formulated in the counter-claim is on issue (d) or 4 of the appellant and on issue 3 or C of the respondent. There is a vital issue that, I must first direct attention to in this appeal, it is the legal requirement in an action in defamation, which says that the actual words in which the alleged defamatory words are uttered or published should be stated. The provision is contained in the Law of Defamation by Gatley in Gatley on Libel and Slander; see 7th edition, paragraph 987, it reads; “If the libel or slander is in a foreign language it must be set out in the same language and followed by a literal translation. It is not enough to set out the translation without stating the original word or vice versa.”

The rule was followed by Jibowu, C. J., of the Old Western Region High Court in Bakare v. Rasaki Ishola (1959) WRNLR 106 and by Ajuyah, J., in the unreported case in Bendel State in suit No/3A/811, delivered on January 11th, 1982, Ogun Imohimi v. Agbonlare Alukpe. In both cases, which were reported the language of the area was regarded as a foreign language, and treated as such and the English translation of the local language was required. The English language being the language of the court, the requirement has its technical meaning because it aids the proof of publication, and communication to the defendant of the alleged libelous material.

In the instant appeal, the words alleged to be libelous were spoken and allegedly written in the Yoruba language, I will now reproduce the words as allegedly stated. The plaintiffs now respondent claimed from the defendant now the appellant in the court below for saying of and concerning the respondent on 6th August, 1993 at the Ijebu Ode Central Mosque, the following words “Eyin Jamma Musulumi e ko gbodo gba ohun ti Alhaji Osikoya wi gbo gegebi otito nitori oun pa iro po lati fibo oga Ile Iwe naa. Awon mejeji n yan ara won ni ale. Alhaji Osikoya si nje ki ifekufe ti oni si ale ro bo ojuse re ninu esin? Which words when translated into the English language means. “My brothers in Islam, you should not believe what Alhaji Osikoya told you as the truth, because he is telling a lie to cover up the principal of the school. Both of them are lovers. Alhaji Osikoya is allowing his lust to override his religious duty.”

In the alleged slanderous words allegedly published against the plaintiff, she filed a claim for N250 million naira. In the claim for libel, the plaintiff alleged that the libelous words were published in a leaflet distributed inside and outside the Ijebu Ode Central Mosque, and to other diverse people in Nigeria and overseas; following words which are contained in leaflet titled “Ikede” on 13th August, 1993, in these words. “Eyi ni latifi to gbogbo Jamma Musulumi leti lori ipade to waye lehin Jimo ti o koja larine mi ati Alhaji Fatai Osikoya (Fisko) loju pe otito ni mo so. Gegebi oti ye o leto fun Fatai Osikoya (Fisko) lati se Iwadi lori oro timo so, sugbon okuna lat wadi otito nitori a gbo pe onfi Oga lie Iwe na se Aya.” Which in English translation mean “This is to inform all brothers in Islam of the outcome of the meeting held after last Friday between myself and Alhaji Fatai Osikoya Fisko together with some Muslim brothers and committee on the issue of the shortcoming of the principal of Moslem Comprehensive High School. It is clear to Fatai Osikoya to investigate all the allegations I made, but he failed to do so because we have learnt that the principal is his mistress.”

In the court below, the plaintiff tendered the evidence of eight witnesses to prove that the said words were uttered on 6/8/93 in the case of slander and that in the case of the claim for libel the defendant wrote the handbill a leaflet and caused the same to be distributed and published in the Ijebu Ode Central Mosque on the 13th August, 1993. The appellant in his issue (a) or 1 above has submitted that he did not utter the words alleged; on the 6th August, 1993, or at any time after; and that the five witnesses on whose evidence he relies to establish his defence suffice to prove his innocence of the accusation. The appellant submitted in his brief on the said issue that the witnesses for the plaintiffs were not sufficiently credible to establish the alleged uttering of the said words. In issue 6, on 2 and 1 the appellant submitted that the learned trial court failed to evaluate the evidence tendered in the court below, and did not ascribe to the said evidence the necessary probative value due to the evidence tendered by both parties.

In this appeal, I want to treat first the veracity of the words allegedly made by the defendant/appellant in defamation of the respondent/plaintiff. The words relevant in the alleged utterance are those allegedly made on 6th August, 1993, to the hearing of about six thousand worshippers in the Ijebu Ode Central Mosque. The words include, and aver that “Both of them are lovers. Alhaji Osikoya is allowing his lust to override his religious duty.”

The plaintiff who complained of the words is a married woman, a teacher, a principal of the Comprehensive High School, a practicing Catholic who holds the position of a matron to Catholic youths; the holder of a doctorate degree in English. In respect of such a person is the imputation allegedly made by the defendant/appellant defamatory in slander of the plaintiff? In the case of Sim v. Stretch (1936) 2 All ER 1237 the standard prescribed for a defamatory utterance as demonstrated by Lord Atkins in that case, has come to be accepted in Nigerian courts and applied in Mahtani v. Daswani (1942) 8 WACA 216; and Rotimi Williams: Akintola & Awolowo v. West African Pilot (1961) 1 All NLR 866; as the rule of proof of the utterance of slander.

The rule is applicable whether in libel or slander; it is this, “would the words used tend to lower the plaintiff in the opinion of or the estimation of right thinking members of the society?” It is said that the defendant said the words of and concerning the plaintiff a married woman, which aver that she and another are lovers who is not her husband.

How would right thinking members of the public view the plaintiff? That is the issue to be determined in this matter. In the court below, the plaintiff’s witnesses 1st, 2nd, 3rd, 4th and 5th, 6th, 7th and 8th witnesses testified that they thought less of the plaintiff; they said, they were shocked and could not believe that the plaintiff could do that. Another said “A married woman who is said to be having sex with another man is regarded as a harlot, a useless woman, a worthless woman who is shunned in the society.” “Everybody in the Jumat service heard the defendant say in conclusion, what I mean by befriend is that Osikoya is having inter sex with Ogunsanya.” Ogunsanya is the name of the plaintiff – the above is part of the testimony of the 1st plaintiff’s witness and by the 2nd plaintiff’s witness; “Mrs. Ogunsanya is married with children; I am about 60 years old; If a married woman is alleged to be having an adulterous association, if I were the husband, I will drive her out immediately, the community will regard her as useless. She becomes toilet roll. They would call her cheap woman. She also becomes a target for anyone who hears to approach her for sexual relationship. 6th plaintiff’s witness said “Mrs. Ogunsanya; is an upright married woman held in high esteem, the ministry is waiting for her to clear her name before we know what to do next. If the publication were true she will be summarily retired.”

The above witnesses have testified to their opinion of the plaintiff on hearing the words allegedly made of the plaintiff on the 6th August, 1993. Were the words true? The 1st to 7th witnesses of the plaintiff have deposed in their testimonies that the words cannot be true of the plaintiff, they know. If they are, then the plaintiff is unworthy of the respect she has, who uttered the words.

The plaintiff has sued the defendant as the person who uttered the words and the testimonies of the witnesses in the presence of the defendant in the Central Mosque where he is said to utter the words are as follows:
“On 6th August, 1993, at Jumat prayer, Alhaji Fatai Osikoya came to the Jumat service. He held the microphone and announced that what Alhaji Alawiye, (the defendant) said about Dr. Mrs. Ogunsanya was a lie, Alhaji Osikoya is the Chairman Board of Governors of Moslem Comprehensive High School where Dr. Mrs. Ogunsanya is principal. There were over one thousand people in the mosque on that day. All Ijebu Ode prayed there. After Alhaji Osikoya had spoken, the defendant moved forward to seize the microphone and said the words in Yoruba, now translated into English, “Ijebu Ode Muslim, you are sitting down here thatAlhaji Osikoya is befriending Mrs. Ogunsanya, and you want Osikoya and Ogunsanya to spoil muslim character in Ijebu Ode, etc.”

The above is the testimony of 1st plaintiff witness, the 2nd plaintiff witness was also in the mosque; he said: “On 6th August, the defendant was also present. Alhaji Osikoya got up to speak on what Alhaji Alawiye said. He said it was not the fact that he had made investigation. He and 6 prominent people, called on the principal without notice and challenged her on what the defendant said etc; when Alhaji Osikoya finished speaking the defendant got up, rushed towards Alhaji Osikoya. He was blocked from reaching Osikoya.

He then started shouting that Osikoya and the principal have girl friend, boy friend relationship. That he is telling lies; they want to destroy muslim religion. Alawiye was shouting, that Osikoya is a liar; that he is trying to cover up the principal. There were over 6,000 people in the mosque it was a large crowd. Everybody heard him. The committee was trying to cool him down.” The 3rd person who was clearly in the Ijebu Ode Central Mosque on 6th August was the PW7, who deposed that he is an engineer by profession.

He deposed further at hearing as follows, I know Mrs. Ogunsanya, the plaintiff; she is a Christian of the Catholic denomination. I know the defendant. He is Moslem. Dr. Mrs. Ogunsanya is the principal of Moslem Comprehensive High School, where I am Chairman of the Board of Governors, since 1990.” After worshipping in his own Mosque he said “I went to the Central Mosque for prayers immediately after prayers, I sought permission to speak to the congregation; on the allegation made the previous Friday by Alhaji Alawiye; the defendant.” Etc, I said, I was told of what Alhaji Alawiye said at the last Jumat service at the Central Mosque, that I have checked his statement and found it to be incorrect. Immediately I spoke, Alhaji Alawiye who was standing near the door inside the Mosque, flared up and said in Yoruba “Alhaji Osikoya ma bae, Konle o fe titori obo ta Musulumi. Mo mope principal Ale e ni.” Meaning Alhaji Osikoya I will finish you because of sex, you want to dash away the Muslim religion. I know that Mrs. Ogunsanya is your concubine or lover.” He then jumped forward in anger to meet me.”

Against the above testimonies, the defendant himself deposed that, he is a merchant. “On 6th August, 1993; immediately after prayers Alhaji Osikoya took the microphone and told the entire congregation in Yoruba thus: “Oniro ni Alawiye” meaning Alawiye, (defendant) is a liar. Osikoya said the congregation should not believe what I told them last week about children not going to school, and that I am a liar. I then raised my hand to talk. I capitalized on my previous appeal. I said the congregation and the parents should go back and investigate on the claim of the parents and students. That because Alhaji osikoya is the Chairrnan Board of Governors of the school he would not want the truth to prevail. The matter was resolved by management committee. I did not say anything against Osikoya, except that he was proved wrong.”

The testimony of 5th defence witness. I remember 6th August, 1993, after the Jumat service Alhaji Osikoya stood up, and said it is not true that school children were not allowed to say the Fatia or to pray (Ikirun). That the congregation should not believe what Alhaji Alawiye said. Alawiye then raised up his hand; He said that Alhaji Fisko spoke the way he did because he is chairman of the Board of Governor. I did not hear Alhaji Alawiye say anything defamatory about Alhaji Fisko and the principal of the school on the day.” It is pertinent to say that the testimony of Otunba Abbas 5th defence witness was given not in cross examination but as evidence in chief.

In cross examination, he said there were more than one thousand people in the mosque on the 6th August; Alawiye called him to give evidence; He said “we sit together in the mosque” we always exchange greetings at the Jumat I am a trader.” The DW1 was another witness for the defence who said he was in the mosque on 6th August, 1993. He said I was also in the mosque on 6th August, 1993. I heard Alhaji Osikoya say that Alawiye said, was not to be followed. Alawiye then raised his head that the congregation should go and do the enquiries. No more was said on 6th August, 1993.”

Faced with such complete denial of uttering the words on the 6th August, 1993, in which the schooled witnesses testified; the learned trial Judge had the burden, and responsibility to assess the totality of the evidence before him and weigh each testimony on an imaginary scale the court had to determine whose testimony to accept as true or false. For instance, even the defendant himself, admitted more than what the 1st witness for the defence said he did; yet the 1st defence witness said he was in Central Mosque on 6th August, 1993.

The court below, was entitled to believe and she believed the version of the plaintiff’s witnesses who said the defendant rushed forward when he heard Osikoya say he was telling lies, rather than believe the version of the respondent and his witnesses who in all cases testified that the defendant raised his hand before he spoke to the Jumat congregation, rather than rush forward in anger. It is clear that no self respecting person likes to be told publicly that he had told a lie, the predictable reaction of wanting to confront the speaker is not unusual. What is unusual is the calm action of raising of hand in order to be allowed to speak. Such a person who could justifiably be excited by being called a liar does not wait to be allowed to deny the averment made against him. Secondly, the direct evidence of what took place on the 6th August, 1993, given by the 7th PW is so credible and behavable. The court below believed it.

In fact, the truth of the scenario in which the appellant answered Alhaji Osikoya came out in the defendant’s evidence in chief, when the defendant said “On 6th August Osikoya came and took the microphone. He told the audience that there was no truth to all I said on the 30th July. I was of the view that Osikoya was lying, I was not happy that Osikoya said I was lying. I responded where I was standing without a microphone. I did not tell them that Osikoya was lying. I now say that I said Osikoya was lying. I also said he was deliberately covering the situation to protect his office etc.”
The testimony of the defendant is at variance with the evidence of his witnesses who said in each case, 1, 2 and 3, DW that the defendant on 6th August, 1993, raised his hand to ask for permission to speak.

Secondly, the testimony of PW7 as to where the defendant stood is correctly stated, when he said the defendant stood by the door inside the mosque; and shows that the defendant’s witness one spoke untruth when he said, the defendant sat with him on 6th August, 1993. The defendant himself said he “responded to Osikoya, where he stood.”

Consequently, it is within the competent of the court below having assessed the evidence of all the witnesses before the court and the trial Judge has pronounced that she does not believe the schooled or tutored testimony of the defendant and his witnesses as to the ineffectual denial of the appellant that he did not utter the words of, and concerning the plaintiff. It is our law that the uttering of words, which impute unchastity to a woman, is actionable without proof of damages. It is also actionable without proof of damages to utter words about the plaintiff; words which injure the plaintiff in her profession, trade or office. In this case, the learned trial Judge found that the defendant did utter the words quoted above concerning the married woman who is the plaintiff; and the statement have been shown to have injured the plaintiff in her trade, profession, office and calling. The defendant has been found liable for slander.

Having read with great care and considered as correct the way the trial court reviewed the evidence as to the words uttered, the person who spoke the words, and the occasion and circumstances and the law relating to the proof of slander of a married woman in her profession and trade. I am also of the view that, the words complained of referred to the plaintiff and it reduced the plaintiff in the opinion of right thinking members of the society. I also, have found that the conclusion reached by the learned trial Judge below flow from the evidence tendered in court and that the ascription of fault and evaluation of the evidence was properly made and they flow from the evidence, I am unable to agree with the appellant that there is an error in the findings and conclusion of the trial court, I do not agree that the conclusion is perverse. It is our law that the Judge hearing the facts of a case is the dominis litis, the master of the facts.

The Courts of Appeal will not unduly interfere in the findings of fact. This court will not so intervene, as there is no reason to do so. See Balogun v. Akanji (1988) 1 NWLR (Pt.70) at 301 per Oputa, JSC. (11) Bamgbade v. Balogun (1994) 1 NWLR (Pt.323) at 718.In the event I resolve issues (c) of both the appellant and the respondent against the appellant. On issue (c) of the appellant, and issue (b) also of the respondent, which is severally referred to by the appellant in their brief as issue one when in fact each of the party identified the issue as A in each case. Admittedly all that is written about the definition of a defamatory statement in issue B, above applies to the issue raised in issue (a) of both parties. However, the complaint herein is of libel. Libel is a genre of defamation and it is actionable because it is in a written or permanent form without a proof of damages.

The statement complained about in the plaintiff’s claim is as contained in exhibit A1 to A3 before the court. It is contained in the leaflet named “Ikede” allegedly made and published by the defendant. The words contained therein are written in Yoruba and have been translated to the English language it means “This is to inform all brothers in Islam of the outcome of the meeting held after last Friday between myself and Alhaji Fatai Osikoya (Fisko) together with some muslim brothers and committee, on the issue of the short comings of the principal of Moslem Comprehensive High School, it is clear to Fatai Osikoya that all allegations I made are true; it was the duty of Fatai Osikoya to investigate all the allegations I made, but he failed to do so because we have learnt that the principal is his mistress.”

The principal of the Moslem Comprehensive High School is the plaintiff in this claim. The plaintiff has complained that the words so published are untrue; and that the words in printed form are defamatory of her character, and disparaging of herself in her home, her profession and calling; “when the words published alleged that she being a married woman was a mistress to another man.”

The established principle of proof of defamatory words is as contained in the obiter dicta contained in judgment of Lord Atkin in Sim v. Stretch (supra). It is this would the words tend to lower the plaintiff in estimation of right thinking members of society generally.” I have quoted above in the earlier part of this judgment, the opinion expressed by witnesses to the plaintiff 1 – 6, in particular the evidence of PW5, who is the secretary to the progressive chapter of all Nigeria Conference of Principals, a conference that the respondent is a member of, she is the orator of the conference. The said witness PW5 deposed that he read the words contained in Ikede, exhibit A1 – A3 before the court.

He had collected the reply he had from some students, the witness said, at a meeting held by the conference of principals on 19th August, the issue of the publication of the exhibit was considered;” and since Dr. Ogunsanya the plaintiff was their member, and also as a principal and school administrative she is supposed to be a role model to both staff and students. To hold this position of leadership, her moral probity must be beyond reproach. That publication has assaulted the position the plaintiff is holding as principal and as an administrative.” The above testimony shows the extent of damage that the publication contained in exhibit A1 – A3 had done to the plaintiff. Clearly, this in the opinion of her colleagues, the plaintiff had sunk low.

It remains to decipher from the evidence tendered, the publisher of exhibit A1 -A3 called Ikede; and its contents. In the testimony of PW7 what occurred on 6th August, 1993, the following is shown; and the reference therein is to the defendant and Mr. Osikoya is the witness, he said “when the defendant saw me going to the 1st floor, he disengaged himself from the people holding him, he followed me to the 1st floor (in Ijebu Ode Central Mosque where the scenario occurred). People who saw him following me called on the Deputy Chief Imam and his lieutenants. They all came to the 1st floor where we were holding meeting of the management committee. The people appealed to both of us. After the appeal, the defendant then threatened that he will be printing a pamphlet and distribute it all over the Mosque and around the town to say that I have allowed a woman and sex to becloud my thinking.”

The defendant in his defence in chief denied that he published exhibit A1 – A3, but confirmed the testimony of the PW7 that a meeting with him and others took place upstairs on 6th August, 1993. He deposed as follows “After the argument the Muslim chieftain in the person of Alhaji Saliu Alejuleum and Alhaji Salaudeen and Aniyikaye called myself and Alhaji Osikoya upstairs with a few members of the management committee including the chairman appealed to me and told Alhaji Fisko that his claim was not correct.”

The threat to publish a pamphlet was not admitted by the defendant on 6th August, but on 13th August the following Friday, leaflet appeared in the Mosque premises bearing the name of the defendant/appellant. The content of the leaflet is what the PW7 said he was told it would contain. The PW1 and PW2, who the defendant deposed to that he, suspected are the authors of the leaflet were not reported to be present at the scene upstairs, where the PW7 said the statement was made to him by the defendant/appellant. The PW4 a reverend bishop of the Catholic faith deposed that when the plaintiff took exhibit A1 to him on 13/8/93, he went to the defendant, in the latter house, and eventually drove in the latter car to the Ijebu Ode Central Mosque, where he saw boys distributing the said exhibit; A2 – A3 the exhibit in his hand, the PW4 said, in the defendant’s house he confronted the defendant with the “Ikede”. And the defendant told him he “had his facts” the defendant did not deny the publication at that stage. While admitting that the witness was a frequent visitor to his house, the defendant denied a visit from the PW4 on the 13/8/93.

The plaintiff believed that the defendant is the publisher of exhibit A1 – A3, she deposed that the defendant had previously made overtures to her, when he said to her “Kilonta Mofera” in Yoruba, meaning what are you selling? (or offering in the circumstance). I want to buy; (I am interested) she deposed that the defendant offered to install and pay for telephone receiver in her residence; and she had refused the offer. The plaintiff’s testimony suggests that the defendant is nursing malice towards her for refusing his overtures; and that the defendant assumed falsely that someone else had access to the plaintiff; this was responsible for the malicious publication about the plaintiff by the defendant; the purpose of which is to drive the principal away from the school. The defendant denied the imputation made by the plaintiff of the amorous overtures, and explained the telephone issue to another situation.

Reading the records of proceeding, it is easy to read that throughout the proceedings, in the evidence of the defendant there is an expression of attempt at settlement of the dispute; and for the pacification of Mr. Osikoya by the elders as chieftain in the mosque to drop transaction against the defendant. There is the unexpressed purpose of plea to the plaintiff to drop the matter also, but the defendant was not so persuaded despite the promise made by the elders, who are named to persuade the defendant to withdraw the leaflets. As in the case of the PW4, the Bishop, the defendant said nobody spoke to him, but the defendant said, in his cross examination, I decided not to deny the content of the document, because I am not the author.”

It seems strange and unnatural that the defendant would find the need to persuade himself to deny the publication of the document, when no one spoke to him about the documents. A Judge used to sifting evidence, and ascribing value to the evidence tendered before him will have no difficulty in distinguishing a lie from the truth.

Admittedly, in the face of the denial by the defendant of the publication of the exhibit in issue, what the court had to act upon, and rely on is the circumstantial evidence. Such circumstantial evidence that are available as to the publisher of exhibit A1 – A3 point to the defendant; and lead irresistibly to the fact that the defendant/appellant is the maker of the document. For example, if the day before a child dies, a witch had threatened to cause the child’s death, the conclusion to be reached is obvious. The conclusion of the court below in identifying the publisher of the contents of the said Ikede is unimpeachable. The document written in Yoruba was intelligible to the people who read it and it is defamatory of the plaintiff. See Gidando v. Chief Imam of Ado Odo (1962) WNLR 122.

In his brief, the appellant has urged this court to exercise its power under section 16 of the Court of Appeal Act to reverse the decision of the court below. Having done so, I am of the view and so rule, that the conclusion of the court below is unassailable on the issues as to whether or not the words are defamatory and as to the defendant/appellant being the publisher of the offensive and defamatory contents of Ikede exhibits A1 – A3, which are libelous of the plaintiff/respondent. In the circumstances, I find that the conclusion and decision of the court below flow from the evidence; and that in the face of the denial of the defendant, as the publisher of Ikede, the circumstantial evidence before the court could lead any reasonable person to only one conclusion, that is, the said exhibits A1 – A3 were published by the defendant.

As written above, the trial Judge is the master of the court on the facts before the court, and the Court of Appeal will be reluctant to interfere with the judgment where there has been a proper evaluation of the evidence. See Popoola v. Adeyemo (1992) 8 NWLR (Pt.257) 1; (11) Karimu Olujinle v. Bello Adeagbo (1988) 2 NWLR (Pt.75) 238 at 255 paras. C & D. I therefore, resolve against the appellant issue B, of the appellant’s issue A, of the respondent’s appeal.

Issue C of the appellant is also the sole issue formulated as a counter-claim by the cross appellant; for a different relief. The appellant in his prayer seeks a reduction in the damages awarded by the court below, and in the cross-appeal, the respondent seeks an upward review of the damages awarded.

In his brief of argument, and in his reply of the appellant, the appellant submitted that the damages ordered by the court below are in the nature of aggravated damages which the respondent did not pray for. He submitted this by citing relevant legal authorities that the essence of success in a defamatory action is the vindication of the plaintiff’s claim, not a punishment of the defendant. The appellant urged the court to reduce the damages ordered, should his appeal not succeed, to the standard of general damages which is the claim of the plaintiff in the court below.

The respondent submitted on the sole issue in the counter claim that the learned trial court had been conservative in the award of damages against the appellant for the award of one million naira for slander and two million naira for libel. The respondent submitted that the learned trial court had not allowed certain issues stated below to affect her mind in the assessment of damages against the defendant/appellant. These issues are (1) the status of the plaintiff a highly reputed school principal, a moral crusader, a matron of all catholic youths in Ijebu Ode diocese, a married woman of substance (with two children one of whom is a lawyer; the other an architectural student; A doctorate degree holder and a role model to teachers. (2) The fact that the publication took place on different days for the slander and libel; and the geographical spread of the area where the expanded, defamation from Ijebu Ode, to Lagos, Benin, Ibadan, Lokoja, Hammonton and London. (3) The absence of any retraction and apology and the lack of remorse by the defendant before and during the trial. (4) The continuing sinking value of the naira and the acute inflation in the country. The appellant in furtherance of his submission on issue C, on quantum of damages submitted that a cumulative order of damages of N3 million naira smacks of order of aggravated damages and urges the court to reduce it.

The appellant cited the recent case of Basorun v. Ogunlewe (2000) 1 NWLR (Pt.640) 221, in which my learned brother, Aderemi, JCA, opined as follows, it must be remembered that the purpose of awarding damages for in a libel case to a successful plaintiff is just to vindicate the good character or reputation. It must not be punitive or aggravated.That may well be so; and the trend in modern times is to vindicate, the reputation of the plaintiff in consideration of the award of damages against the defendant. That trend however, fails to consider the feelings of the plaintiff whose reputation and good name are unjustifiably assaulted and damaged by the defendant.

Generally, the order made for damages for defamation is generally in the discretion of the trial court. The assessment made does not depend on the strict legal rules, but certain rules operate to guide the exercise of discretion of the court. See Bray v. Ford (1986) AC 44.50; Ntikudeun v. Oko (1986) 12 SC 126, (1998) 5 NWLR (Pt.45) 909; (11) University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143, (1985) 1 SC 265 at 271.

The discretion of the Judge are limited by usual caution of prudence and remoteness of damages in the award of damages. The award in libel; or even in slander is not limited to any specific pecuniary loss, but the damages resulting from an unjustifiable attack on the reputation of a victim may endure throughout the life of the victim. An appellate court would normally rehear the case of defamation in order to arrive at a just conclusion on the verdict of the court below; it is usually however not a reason to amend the award made by the trial court, however, the court is not precluded from reviewing the damages awardable, if there is an appeal on the issue of damages.

In this case; the appellant seeks a reduction in the award of damages awarded. In Ziks Press Ltd. v. Alvan Ikoku (1951) 13 WACA 188, 189, the principles are stated to guide an appellate court on the quantum of damages awarded, and cautioned the Court of Appeal to be reluctant in the exercise of its powers to reassess the damages awarded by the court below. In 1974, our Supreme Court in His Highness Uyo 1 v. Nigerian National Press Ltd. & 2 Ors. (1974) 6 SC 103 at 105, cited the principles in Ziks Press to review upwardly the damages awarded in the court below.

Fortified by the above, I have considered the issues raised by the cross appellant in his sole issue, that the respondent is a person of a high character, who has been unjustifiably assaulted; it is evident from the testimony of the defendant that he is unrepentant at the damage, he is adjudged to have caused to the respondent in his utterance in slander and has shown no remorse in the publication which assailed and caused pain to the respondent. It is evident that the court below disbelieved the denial of the defendant when the plaintiff testified that the defendant made overtures to the plaintiff, and offered in his utterance the words in Yoruba what do you have to sell, I want to buy; and the defendant offered to install telephone in the respondent’s room to “be able to speak to his concubine.”

The malice generated in the mind of the defendant which is manifested by his action for the refusal of the plaintiff to accommodate his amorous advances is the certain preamble to the defamation of the plaintiff when he concluded apparently wrongly that what he could not have, was being enjoyed by another. This is the reason for the incessant complaints against the plaintiff over the school. The evidence of the plaintiff showed that the defendant severally went into the Comprehensive High School with a desire to impress the principal of his wealth when he travelled to the school in different cars. The demonstration did not avail him. It is an unfortunate behaviour and attitude of men folk in these climes, that a woman exists merely to provide pleasure to the men folk.

This attitude must be corrected. The plaintiff is shown by the evidence in court to be highly educated person in letters and a married woman who is singularly devoted to her calling, which has been unjustifiably derided. Evidence exists that the plaintiff has remained unable to retain her position as principal in the said school directly owing to the slanderous assault on her reputation; and libelous insinuation and excessive effusions from the pen of the defendant, which is actuated by malice. I hold the view that the sum awarded as damages by the court below does not represent a sufficient compensation in vindication of the respondent’s loss in reputation and to assuage her pain. The naira has depreciated substantially; only the other day, another slide, in naira was announced owing to inflation.

In my view and I so rule, the sum of two million naira is appropriate damages for the slanderous words uttered by the appellant against the respondent; and three million naira for the libelous publication against the respondent by the appellant who published Ikede and its contents. In conclusion, the appeal fails in its entirety, the cross appeal succeeds, I review upwardly the damages against the appellant to N5 million naira cumulatively.

There will be cost of N250,000 against the appellant to this appeal.

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Other Citations: (2003)LCN/1445(CA)

Nigerian Agricultural Co-operative Bank Limited V. Johnbull Obadiah (2003)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

This is an appeal against the ruling and judgment of Essang J. of Akwa Ibom State High Court, Oron, delivered on 19th October, 1998 and 26th January, 1999 respectively, in Suit No. HOR/46/95.

The brief facts of the case are as follows:-
The respondent as plaintiff instituted an action by way of a writ of summons dated 24/7/1995, claiming from the appellant as defendant, the sum of N1, 500, 000.00 for general damages for detinue and for a declaration that the seizure by the appellant of 35 bundles of fishing nets, was illegal, null and void. But the statement of claim was not filed until 1st April, 1997, thus a period of 2 years. Still, the appellant was not served with the statement of claim of the respondents until 2/6/1997. The statement of defence and counter claim of the appellant was filed on 2/7/1997, thus within time by the rules of court.

The record shows that the appellant’s statement of defence and the counter-claim were served by the court’s bailiff on the respondent personally on 30/9/1997, but before the service on the respondent on that date, his learned counsel had on 17/9/1997 filed an application before the court for default judgment; and was heard and granted by the court on 15/10/1997. This clearly shows that the appellant’s statement of defence and the Counter-claim had earlier been served on the respondent before the court heard and granted the application for default judgment. Learned appellants counsel has however conceded to the fact that he (counsel) was not in court on the 15/10/1997 when the application was moved and granted.

He equally conceded that the appellant also did not file a Counter-affidavit to the application for default judgment which was on notice. It is curious that learned counsel for the appellant is deliberately silent as to whether the application for default judgment was served on appellant or not. But surprisingly, the same appellant and his counsel, who were not in court on the day the respondents application was moved and granted by the trial court, on that same day, filed an application to set aside the default judgment (see page 22 of the record).

The application to set aside the default judgment was opposed by the respondent, but was however granted by the trial court on 19/10/1998 (thus one year after) on the following terms:-
“The application therefore succeeds. But taking in consideration the age of the case-having been filed in 1995 and the seeming lack of applicant and its counsel’s zeal and determination to defend the suit contributing to delay and setting aside the Notice on motion for Judgment, the Defendant/Applicant shall pay costs to the Plaintiff/Respondent assessed and fixed at N100, 000.00 (One Hundred Thousand Naira).

The aforementioned costs to be paid before the Defendant/Applicant takes further steps to defend the case. As a warning to prevent further exercise in futility, the Defendant/Applicant is to file an undertaking to defend the suit with due care, diligence and determination, failure which, the judgment of 15th October, 1997 shall be restored. Above terms and conditions setting aside the judgment to be fully complied with by the applicant before return date”.

The appellant refused to pay the cost awarded, and the respondent applied to lower court to restore its Judgment of 15/10/1997 since the appellant had not complied with the conditionalities laid in the judgment. The learned trial judge in his ruling of 26/1/1999, restored the terms of his default judgment of 15/10/1997 as follows:-
“All the submissions of the plaintiff’s counsel J.J. Edem, Esq., are up held since the defendant has not complied with the terms and conditions of court’s order dated 19/10/98. That the case has not gone on appeal, the court order being sacrament must be obeyed. Accordingly, Judgment of the court dated 15/10/97 must be restored in favour of the plaintiff for sum of N1. Million”.

Dissatisfied with the former ruling in which appellant was asked to pay a cost of N100, 000.00, learned counsel obtained the leave of this court on 19th April, 1999 to appeal against the conditionalities and the cost. The final judgment of 26/1/1999 is also appealed against by the appellant and by leave of this court, granted on 19/2/2002, amended notice of appeal containing 9 grounds of appeal, the appellant formulated two issues that read as follows:-
“(i) Was there any legal justification or basis for the final judgment of the court delivered on January 26, 1999?
(ii) Did appellant have fair hearing in regard to the final judgment of the court delivered on January 26, 1999?”

I have to point out that right from the beginning of this appeal, the respondent has deemed it not necessary to appear or file briefs. So the appeal with leave of this court is determined solely on appellant brief only. This is in accordance with Order 6 rule 10 of the Court of Appeal Rules 2002.

In arguing issue No.1 which is based on grounds 1, 2, 3, 4, 5 and 7 of the grounds of appeal, learned counsel has copiously referred to the ancillary orders as well as the terms and conditions contained in the default judgment of 15/10/1997; setting aside ruling of 19/10/1998 and the final judgment of 26/1/1999 respectively, and submitted that the crux of this appeal is that there was no basis for the ancillary orders and conditionalities. Learned counsel gave seven reasons as to why reinstating the default judgment is wrong”.

The first reason according to learned counsel is that Order 27 rules 4 and 11 of the High Court (Civil Procedure) Rules 1989 of Akwa Ibom State under which the application for default judgment was made, has absolutely not provided that failure to pay cost awarded by a court, judgment would be entered against the party that failed to pay the cost.

In other words, the above stated rules, specifically allowed default judgment only where a party has failed to file his statement of defence within the frame time therein provided or by the Court. Counsel relied on cases of Akinnuli Vs Ayo – Odugbesan (1992) 8 NWLR (Part 258) 172, 189; Imo Broadcasting Corporation Vs Iwueke (1995) 1 NWLR, (part 372) 448, 502, Malgwi Vs Gadzama (2000) 11 NWLR (Part 678) 258.

The second reason according to learned counsel, is that, it is totally illogical for the trial court to restore a default judgment when the same court had earlier acknowledged in its ruling of 19/10/1998, that there was no basis in law for the judgment in the first place, since the respondent’s application, was based on the perceived default of pleadings by the appellant, whereas the appellant, had in fact, filed their pleadings including a counter claim within time.

The third reason according to learned counsel is that the reasons given by the trial court for the default judgment are quite different from the reasons given by the respondent in their affidavit evidence, when the application for default judgment was made. In other words, appellant is alleging that the trial court made up a different case for the respondent other than what respondent asked, which is legally not allowed. Counsel referred to Tyum Vs Atavti (1996) 8 NWLR (Part 469) 675, 684 – 6; Chugbo Chemists Ltd Vs Chugbo (1996) 5 NWLR (Part 447) 246-252-3; and IMNL Vs Oge (1996) 3 NWLR (part 437) 422, 433.

The fourth reason according to learned counsel is that the law has made provision for recovery of costs awarded by courts in Sheriffs and Civil Process Act Cap. 407, Laws of Nigeria 1990. That the respondent could have availed himself by recourse to recover the cost rather than for the trial court to restore a default judgment that had earlier been set aside. Counsel referred to Ojeme Vs Monodu 11 (1995) 6 NWLR (Part 403) 583, 604-5; Nigeria Army Vs Mowarin (1992) 4 NWLR (Part 235) 345; Akibu Vs Oduntan (1991) 2 NWLR (part 171) 1.

The fifth argument of appellant counsel is that the trial court displayed double standard when alluding to the reasons for setting aside the default judgment. The double standard according to counsel, is that the trial court blamed the appellant for unnecessary delay in hearing the case, but the court closed its eyes to the fact that the respondent, who as plaintiff filed the suit in 1995, but did not file the statement of claim until about 2 years later. That the court knew that the case could not proceed without the respondent first filing his statement of claim. Learned counsel referred to the various adjournment made by the lower court and the reasons for the adjournments as well as the appearance of parties and their counsel.

The sixth submission of counsel is on the maxim that “cost follows cause”. It is the contention of counsel that it was the respondent who wasted the time of the court by failing to file his statement of claim for 2 years, yet the trial court awarded unjustified cost of N100, 000.00 against the appellant on the wrong assumption that the appellant stalled the proceedings of the case by its lack of zeal and consistent absence from the court.

That on the contrary, there was nothing suffered by the respondent that would indemnify him by the exorbitant cost of N100, 000.00.

In concluding his argument on issue No.1, learned counsel, referred to the counter-affidavit of the respondent in apposing the application to set aside the default judgment. In paragraphs 4, 5 and 6 of the counter-affidavit deposed to by the respondent himself, he said that the appellant was yet to file their statement of defence, whereas, the statement of defence had been served personally on the respondent, but he failed to hand same to his solicitor. That this is clear perjury by the respondent in his affidavit, but the trial court made feeble excuse for the respondent and his counsel in his ruling. Learned counsel for the appellant regard this as another flagrant display of double standard by the trial court, and urged that there was no legal basis for the high cost awarded and the stringent conditions which latter culminated in the unwarranted restoration of the default judgment. Counsel urged this court to set aside the restoration order and remit the case to the lower court.

Now the position of the law where a party has applied to the trial court, to enter judgment in default of pleadings in accordance with Order 27 rules 4 and 11 of the High Court “(Civil Procedure) Rules 1989 of Akwa Ibom State or in accordance with similar Rules of Court, there is no other relevant considerations other than the failure to file pleadings. Any other considerations like default of appearance whether by a party or his counsel, or lack of zeal to defend or prosecute the suit, will be considered as irrelevant considerations.

There is no doubt that the decision to set aside a judgment obtained by default of pleadings is discretionary. The discretion however, must be exercise not only judicially, but also judiciously in accordance with statutory provisions of rules of court and settled legal principles on sufficient materials. The discretion should not be influenced by irrelevant considerations. See Akinnuli Vs Ayo- Odugbesan (1992) 8 NWLR (Part 258) 172,189-190.

Though in the case at hand, the learned trial judge set aside the default judgment as applied for by the appellant, yet the reasons enumerated by the learned trial judge can be classified into two categories, one lawful and the other unlawful and therefore irrelevant.

The lawful reason is that the trial court latter found out, that in fact, the appellant had filed its statement of defence within time and it was in the court’s file. The application for default judgment was based on a mistaken belief by the respondent’s counsel, that pleadings-statement of defence had not been filed. The trial court in fact found that it was the fault of the respondent himself on whom statement of defence was served by the court-bailiff, but the respondent failed to hand it over to her counsel.

The unlawful reason given by the trial court for setting aside the default judgment is found at pages 60-61 of the record where the learned trial judge said-
“But taking into account the age of the case having been filed in 1995 and the seeming lack of applicant and its counsel’s zeal and determination to defend the suit contributing to delay and setting aside the Notice on Motion for Judgment the Defendant/Applicant shall pay costs to the Plaintiff/Respondent assessed and fixed at N100, 000.00 (One Hundred thousand).
The afore-mentioned costs to be paid before the Defendant/Applicant takes further steps to defend the case. As a warning to prevent further exercise in futility, the Defendant/Applicant is to file an undertaking to defend the suit with due care, diligence and determination, failure (sic) which the judgment of 15th October, 1997 shall be restored. Above terms and conditions setting aside the judgment to be fully complied with by the applicant before return date”.
(Italics by the trial Court).

The above unlawful reasons are irrelevant considerations applied by the trial court in exercising his discretion to set aside the default judgment. Its unreasonableness can be demonstrated as follows:-
(a) Accusation of stalling the proceedings by seeming lack of applicant and its counsel’s zeal.
(b) Uncalled and unjustified costs of N100, 000.00 against appellant.
(c) Full payment of costs before appellant takes further steps in subsequent proceedings.
(d) Warning to appellant and his counsel (which is tantamount to judgment or conviction).
(e) Filing in court of an undertaking by the appellant to defend the suit with due care, diligence and determination.
(f) Full compliance with a, b, c, d and e above cumulatively.
(g) Restoration of the default judgment of 15/10/1997 if a, b, c, d, e and f are not complied with.

There is no doubt in my mind, that the above ancillary orders and terms and conditions made by the learned trial judge, are outside the provisions of Order 27 rules 4 and 11 of the High Court (Civil Procedure) Rules 1989 of Akwa Ibom State, and to that extent are irrelevant and not based on judicial and judicious discretion. There is no legal principle on which such extraneous considerations are based.

Whereas in this case as analysed above, in the exercise of judicial discretion, a trial judge takes into consideration irrelevant issues, an Appellate Court will be justified in interfering by setting aside the discretion. See National Bank of Nigeria Ltd Vs NET (1986) 3 NWLR (Pt 31) Page 667.

I am satisfied that what the learned trial judge stated in his ruling on 19/10/1998 are irrelevant which led him into serious errors in the exercise of his discretion by restoring the default judgment which he had set aside on 15/10/1997. There was no basis for making the ancillary orders and the subsequent restoration of the default judgment. I set aside the irrelevant considerations and the subsequent order made on 26th January, 1999 in which the judgment was restored. Issue No.1 is resolved in favour of the appellant Bank.

The appellants issue No.2 is whether appellant had fair hearing when the final judgment was delivered on 26/1/1999. Learned counsel referred us to the record of proceedings and especially to the proceedings of 23/11/1998, 19th January, 1999, and 26/1/1999 respectively, counsel contended that the trial court did not issue out hearing notices to the appellant before the oral application was made by the respondent for restoration of the judgment.

I have carefully read the record of proceeding as from 23rd November, 1998 to 26th January, 1999. On 23/11/1998 the respondent’s counsel, J.J. Edem Esq. was in court, but the appellant’s counsel was absent. Also the appellant Bank was not represented. But appellant’s counsel, one C. Attah wrote to the court, seeking for an adjournment on the ground “that they want to meet their obligation”, what ever that means.

Respondent’s counsel said he had no objection and the court adjourned the matter to 19/1/99 for mention. There was no order that the appellant should be served hearing notice.

On 19/1/1999, the record shows that the plaintiff/respondent was in court but defendant now appellant was absent. No counsel for any party. It is stated that “Court could not sit due to public holiday and case adjourned to 26/1/99 for mention. It was signed by one E. E. Akadah – Principal Registrar. There is no order or directive that both parties were to be notified of the adjourned date. Surprisingly, however, on 26/1/1999, only the respondent was in court with his Counsel.

Appellant and her counsel were absent. Since there was no order on 19/1/1999 to inform parties of the adjournment to 26/1/1999, it was unfair on the part of the trial court to entertain the oral application of the respondent to restore the set judgment without putting them on notice. This has offended the rule of fair hearing and has occasioned a miscarriage of justice.

Trial Courts are enjoined to ensure that hearing notices are issued on parties before embarking on trial of any matter before them. Right to fair hearing is a constitutional right enshrined under section 33 of the 1979 constitution and now section 36 of the 1999 Constitution of the Federal Republic of Nigeria. See Agena Vs Katseen (1998) 3 NWLR (part 543) 560, 565-6 Mbadinuju Vs Ezuka (1994) 8 NWLR (part 364) 535 and Scott. E. Muakpor Vs Ukavbe (1975) 2 Sc. 41.

I am satisfied that on 19/1/1999, and 26/1/1999 when the respondent orally applied for judgment, the appellant and his counsel were not in court because there was no order for issuance and service of hearing notice or adjournment on them.

I therefore resolve issue No.2 in favour of appellant, namely, appellants fundamental right to fair hearing was breached.

On the whole, the appeal is meritorious and is hereby allowed. I set aside the order of cost of N100, 000.00 and all the other ancillary orders made by the learned trial judge on 19/10/1998 except the order setting aside the default judgment for want of pleadings. I also set aside the judgment of the learned trial judge delivered on 26/1/1999. In its place, I order that the case be sent back to Akwa-Ibom State Judiciary to be tried on its merit.

I make no order as to costs.

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Other Citations: (2003)LCN/1444(CA)

Papersack Nigeria Limited V. Alhaji J. A. Odutola & Anor (2003)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A.

By writ of summons filed on the 22nd July, 1993 in Lagos High Court Ikeja, the respondents commenced the suit against the appellant for arrears of rent, possession and mesne profit in respect of premises known as 44 Eric Moore Road, Iganmu Estate, Lagos.

Pleadings were exchanged and amended and the case proceeded to trial. At the end of the trial, the trial Judge entered judgment in favour of the respondents.

The appellant was dissatisfied with the decision of the lower court and appealed to this court. The learned counsel for the appellant filed a brief of argument on its behalf and formulated the following issues for determination:
“(a) Whether the lower court was right when it held that the defendant was a tenant-at-will.
(b) Whether the lower court was right when it held that the defendant’s tenancy was duly terminated by a valid notice to quit.
(c) Whether the lower court was right when it held that there was a valid assignment of the property the subject matter of the tenancy to the 2nd plaintiff thereby giving it status to issue the notice to quit which the court found to have been validly issued.
(d) Whether the lower court was right in its assessment of the sum if any, due to the plaintiff and interest thereon.
(e) Whether in the circumstances of this case wherein the tenancy had not been determined, the plaintiff is entitled to mesne profit over and above the agreed rent.”

The respondents also filed a brief and formulated five issues for determination as follows:
“(a) Is the lower court not right when it found that the defendant was a tenant-at-will?
(b) Is the lower court not right when it held the defendant’s tenancy was duly terminated by a valid notice to quit?
(c) Is the lower court not right when it held that there was a valid assignment of the property, the subject-matter of the tenancy to the 2nd plaintiff thereby giving it status to issue the notice to quit which the court found to have been validly issued?
(d) Is the lower court not right in its assessment of the sum if any, due to the plaintiffs and interest thereon?
(e) Where in the circumstances of this case the defendant’s tenancy has been determined, is the plaintiff not entitled to the mesne profit as found upon by the trial court?”

The two briefs have not set out the facts of the case by way of summary but have brought out the facts in the course of arguing the issues. From my reading of the pleadings and the record of appeal the facts of the case are not complicated.

The respondents’ case was that the appellant occupied the disputed property without any formal tenancy agreement in the year 1982 and started paying N200, 000.00rent annually.
The attempt to formalize the tenancy between the 1st respondent and the appellant in a lease did not work out but the appellant continued to occupy the property, as a tenant-at-will. Later the 1st respondent assigned the property to the 2nd respondent which eventually gave appellant notice to quit the property.

At the time of the suit the appellant was in arrears of rent and the respondents sued for the arrears as well as mesne profit because the appellant continued to occupy the property even after it had been given notice to quit.

The appellant’s case was that it indeed entered into the premises with the consent of the 1st respondent by an oral tenancy agreement, which commenced in June 1982. It was paying N200, 000.00 rent yearly to the 1st respondent as a yearly tenant. The 1st respondent tried to unilaterally increase the rent and the appellant resisted it.

The appellant claimed that it was not in arrears of rent but that the 1st respondent refused to claim rent from it. The appellant also claimed that its tenancy was not duly terminated by valid notice to quit.

On the first issue, the main complaint of the learned counsel for the appellant was that the evidence before the trial court could not sustain the finding that the appellant was a tenant-at-will. He referred to the admission of the 1st respondent that the appellant was a yearly tenant and the fact that the appellant was given six months notice to terminate the tenancy.

He said that the tenancy started on the 1st of June, 1982 and the annual rent was N200,000.00 which was being regularly paid by the appellant to the 1st respondent. There was therefore no justification for the court to hold that the appellant was a tenant-at-will.

He relied on the case of Pan Asian African Co. Ltd. v. National Insurance Corporation Nigeria Limited (1982) 9 SC 1, (1982) All NLR reprint 215.

The learned counsel for the respondents submitted that the court was right when it found that the appellant was a tenant-at-will from 1980 when Thorensen & Co. Ltd. ceased to be a tenant in the warehouse in the disputed property.

In paragraph 4 of the respondents’ amended statement of claim, the respondents averred that the appellant was simply an occupier of the warehouse and premises earlier let to Thorensen & Co. Nig. Ltd.

The impression created by the further amended statement of claim was that the appellant was not a tenant at all but he simply took over the property without the consent of the 1st respondent but in the appellant’s further amended statement of defence in paragraph 6 it averred as follows:
“In answer to paragraph 8 of the claim, the defendant avers that by consent of both parties, a new yearly tenancy was entered into with the anniversary year commencing from 1st June, 1982 to 31st May of the following year and each year, at an increased rent of N200,000.00 per annum in respect of the demised premises,”

By this averment, the appellant was contending that it was a yearly tenant of the 1st respondent. The 1st respondent under cross examination at page 155 of the record of appeal gave evidence as follows:
“As far as Blocks B & C are concerned, paper sack succeeded Thorensen as tenant. The defendants are one year tenant the N200, 000.00 per annum is not the current rent. I did not negotiate revision of rent.”

This admission supported the case of the appellant that it was a yearly tenant and it is reinforced by the fact that the respondent gave the appellant six months notice to quit. There was no doubt that the relationship between the appellant and 1st respondent as understood by both parties was a yearly tenancy. I therefore agree with the appellant that the trial court was wrong in holding that the appellant was a tenant at will.

On the second issue, the learned counsel for the appellant submitted that it was not disputed that the tenancy of the appellant runs from 1st June to 31st of May but the notice to quit exhibit E5 is dated the 23rd of July, 1992 and purported to terminate the tenancy on the 31st of January, 1993.

He submitted that notice to quit to be valid and effective to terminate a tenancy, must expire on the anniversary of the tenancy.

Notice to quit which purports to terminate the tenancy before the expiration of the term or in the middle of the current term is invalid.

He referred to the case of African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt.21O) 391 where the Supreme Court held that a  notice to quit in order to be effective ought to determine the tenancy at the end of the current term.

In reply, the learned counsel for the respondent submitted that the bottom line in the present appeal is “what is the current term of appellant’s tenancy? He said that the evidence showed clearly that the appellant was a tenant at will and there was no fixed time of the tenancy with the result that the notices given for the appellant to quit were valid.

Exhibit P6 written to the appellant by the respondents referred to the appellant as a yearly tenant. This implies that there was a definite time within the year when the tenancy started and ended. The 1st respondent also admitted in his evidence that Chief Aboderin persuaded him to allow the appellant to be in possession of the property and that the appellant would move in 1982.

The appellant testified that it started paying rent to the 1st respondent from the 1st of June, 1982 for a yearly tenancy, which ended on the 31st of May each year. Consequently, I am of the view that the notice to quit given to the appellant which did not end on the 31st of May was invalid.

On the third issue, the learned counsel for the appellant contended that the notice to quit, which was issued on behalf of the 2nd respondent, could not be valid because no deed of assignment was proved to show that the property had been transferred from the 1st respondent to the 2nd respondent.

In reply, the learned counsel for the respondent submitted that the receipt for payment of rent issued by the 2nd respondent to the appellant was enough to show that the property had been transferred to the 2nd respondent. In the respondents’ further amended statement of claim paragraph 2 they averred as follows:
“The 2nd plaintiff is the assignee of the unexpired term and interest in the property at 44, Eric Moore Road, Iganmu Industrial Estate Lagos State. The plaintiff shall rely on Deed of assignment at the trial.”

The respondents averred that they would rely on the deed of assignment but no such evidence was tendered before the trial court.

Receipt of payment of rent issued to the appellant by the 2nd respondent could not by any means amount to proof of assignment.

In any event, since I have found that the notice was not properly issued, it does not matter whether it was issued by the 1st respondent or the 2nd respondent.

However, it is my view that the 2nd respondent could not validly issue the appellant notice to quit since there was no proof before the trial court that it owns the property in dispute.

On the fourth issue, the learned counsel for the appellant complained that the computation of the rent as made by the trial court was wrong. He said that the appellant was not a tenant to the 1st respondent between 1977 to 1982 and would not be responsible for the arrears of rent incurred by the previous tenant Thorensen Nigeria Limited.

He also said that for the period from 1983 to 1996 while appellant claimed to pay N800, 000.00 for the four years, the respondent said that only the sum of N600, 000.00 was paid and that the sum of N200,000.00 was the outstanding for the period of 1st June, 1984 to the 31st of May, 1985.

The appellant submitted that the only suggestion that it did not pay came from the respondents’ exhibit P3 which is full of discrepancies and should not be taken as accurate. The counsel said that it was inconsistent that appellant would pay rent from 1st of June, 1982 to the 31st of May, 1990 and leave out only the period of 1st of June 1984 to 31st May, 1985 and yet there was no letter of demand from the respondents.

The respondents’ counsel submitted that the award of N68, 419.95k for the period of 1977 to 1982 was justified. He said that the appellant should have produced receipt of payment of rent from the year 1984 to 1985 if indeed it had paid the rent.

On the fifth issue, the learned counsel for the appellant submitted that since the tenancy was not properly determined, the trial court was wrong to award N808, 861.64k per annum until possession is given up. This is because a claim for mesne profit cannot be sustained where the tenancy is not properly terminated.

The respondents’ counsel submitted that the trial Judge was right in awarding mesne profit because the determination of the tenancy was valid.

I shall take issues 4 and 5 together. I have already found that the tenancy of the appellant was not properly determined. It therefore follows that there can be no question of awarding mesne profit to the respondent.

Since it was clear from the evidence that the appellant took over the property from 1st June, 1982 there was no basis for the trial court to have ordered it to pay the arrears of rent incurred by a previous tenant.

However, I am of the view that the appellant by its inability to produce receipt of payment for the year 1984 to 1985 cannot claim that it had paid the rent for that year. At page 263 of the record of appeal the trial Judge made the following awards to the respondents:
“I refer to my earlier findings and held that the total amount owed by the defendant for the use and occupation of the property is made up as follows:
1. 1977-1982 – N68,419.95
2. 1983-1986 – 200,000.00
3. 1987-1989 – NIL
4. 1989 -1992 – 1,089,000.00
5. 1992-1994 – 1,617,143.23
N2,975,143.23

The plaintiffs did not state when the interest would commence. Refer to N.G.S.C. v. N.PA. (1990) 1 NWLR (Pt.129) 741 relied upon by plaintiff’s counsel and to the submission of defence counsel of the principle that interest is payable where the plaintiff had been kept out of his money. The defendant became aware of increase in the agreed rent of N200, 000.00 per annum in 1989.

The interest will therefore commence not since 1979 but since 1989.

Plaintiffs third claim is for mesne profit at the rate of N808, 861.64 per annum until possession is given up.

In view of the validity of the determination of the defendant’s tenancy at will, the plaintiffs are entitled to mesne profits.”

For all I have said in this judgment, I allow the appeal and set aside the judgment of the trial court as it relates to the termination of the tenancy. I vary the award for arrears of rent made above by the trial court as follows:
1. The arrears of rent of N68, 419.95 for the period of 1977 – 1982 is set aside.
2. The appellant shall pay rent of N200, 000.00 for the period of 1st June, 1984 to 31st May, 1985.
3. The rent from 1989 to 1994 shall be at the rate of N200, 000.00 per annum as there was no proper increase of rent proved by the respondent.
4. The total arrears of rent due as at 31st May, 1994 is the sum of N1, 000, 000.00 (One million Naira) only.
5. The order for payment of mesne profit is set aside.

This shall be the judgment of the lower court. Save for this variation the appeal against the award of arrears of rent is dismissed.

The parties are to bear their own costs of this appeal.

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Other Citations: (2003)LCN/1443(CA)

John Asuquo Etim V. The Registered Trustees of the Presbyterian Church of Nigeria (2003)

LawGlobal-Hub Lead Judgment Report

RAPHAEL OLUFEMI ROWLAND, J.C.A.

This is an appeal against the order of Emilia Ibok, J. made on 19th day of December, 2000 at the High Court of the Cross River State of Nigeria holden at Calabar, wherein she granted an order of interlocutory injunction in favour of the plaintiff now respondent.

In the writ of summons filed on 8th day of December, 2000, the plaintiff/respondent prayed the court as follows:
“1. A declaration that plaintiff is entitled to the statutory right of occupancy grantable by the Governor of Cross River State over the piece or parcel of land lying and situate at Big Qua Town, Calabar formerly occupied by one Mr. Alfred O. Olaiya, on the permission of the plaintiff and referred to as No. 18 Big Qua Town Road, or any part thereof.

2. An order of perpetual injunction restraining the defendant, his workmen, agents, servants, assigns, or privies from erecting any structure or continuing with any construction work on the piece or parcel of land known as No. 18 Big Qua Town Road, or any part thereof.

3. The sum of N500, 000.00 (five hundred thousand naira) only being damages for trespass”.

The above writ of summons was also filed together, on the same day, with a motion on notice for interlocutory injunction to restrain the appellant from erecting anything on the disputed land pending the determination of the substantive suit. The said application for interlocutory injunction was slated for hearing on the 19th day of December, 2000.

As borne by the records, the defendant/appellant was not personally served with the aforementioned processes until the 14th day of December, 2000 almost seven days after filing. See page 28 of the record of proceedings. The days following the date of the personal service on the appellant were public holidays and a weekend and so, on the 1st day of December, 2000, the appellant’s solicitors filed a memorandum of appearance. See page 29 of the records. On the 19th day of December, 2000, when the motion on notice was fixed for hearing, the appellant’s counsel sent in a letter applying for the motion on notice to be adjourned due to previously scheduled matters. See page 30 of the record of proceedings.

As borne by the records the Registrar of the trial court duly acknowledged the receipt of the letter. Notwithstanding the said application for adjournment by the appellant’s counsel, the respondent’s counsel moved the lower court and the learned trial Judge, after bearing the argument on the respondent’s motion on notice for interlocutory injunction restraining the appellant even without hearing him in opposition. See pages 36 to 38 of the records.

Being dissatisfied with the order of the learned trial Judge in granting the said application for interlocutory injunction without having heard from him, the appellant has now appealed to this court as per the notice and grounds of appeal set out at pages 39 to 41 of the records.

From the grounds of appeal the appellant raised three issues for determination.

They are:
“1. Whether the appellant was accorded a fair hearing or hearing at all before the application of the respondent for the grant of interlocutory injunction was granted.
2. Whether in the circumstances of this case the learned trial Judge ought not to have considered and granted an adjournment to the appellant to file his counter affidavit to the respondents application for interlocutory injunction.
3. Whether the trial court can grant an interlocutory injunction on 19th December, 2000 when both the writ of summons and the application for interlocutory injunction served on the appellant on 14th December, 2000 required the appellant to enter appearance within 8 days.”

The respondent also formulated three issues for determination.

They are:
“(i) Whether the learned trial Judge gave the appellant an opportunity to be heard before hearing and determining the application for interlocutory injunction?
(ii) Whether in the circumstances of the case the learned trial Judge exercised her discretion properly in proceeding with the matter?
(iii) Whether an order of injunction can only be granted after the date limited in the writ of summons for entering appearance has expired?”

Apart from semantics, it goes without saying that the three issues formulated by the parties are one and the same thing.

On issue NO.1 in the appellant’s brief it was submitted for the appellant that on the 19th day of December, 2000 the learned trial Judge heard arguments solely from the respondent’s counsel and several legal authorities were cited before her in support of the application for interlocutory injunction. Reference was made to pages 36 to 37 of the records. It was submitted that the learned trial Judge having heard the respondent’s counsel on the application granted the interlocutory injunction. It is manifest from the ruling that the learned trial Judge anchored the ruling of the court on the allegation that the appellant had been served without more.

It was submitted that the absence of the appellant and his counsel was explained through a letter to the court. Section 36(1) of the 1999 Constitution was cited and relied upon. It was contended that the laws frowns on ex parte orders granted at the back of a party especially where the appellant will be kept in that position without being heard or without deciding the merit of the interlocutory injunction.

Learned counsel for the respondent argued issues Nos. 1 and 2 in the respondent’s brief together. It was submitted that issues Nos. 1 and 2 are related and therefore could be argued together and they relate to grounds 1 and 2 of the grounds of appeal. It was argued that the crux of the submission of learned counsel to the appellant is that the order of interlocutory injunction granted by the learned trial Judge on 19/12/2000 was granted ex parte, without giving the appellant an opportunity to be heard. He maintained that the trial court failed to consider the appellant’s case merely because he was absent. It submitted that counsel for the appellant relied heavily on the authority of Kotoye v. CBN (1989) 1 NWLR (pt. 98) 419, (1989) 1 N.S.C.C. 238; (1989)All NLR 76 in contending that the injunction was granted ex parte and should therefore be set aside for breach of the rule of fair hearing.

It is the contention of the learned counsel for the respondent that the authorities cited by counsel to the appellant are good law but none of them avails him as they are inapplicable to the present case. It was stated that the learned trial Judge was satisfied with the fact that appellant was duly served with the processes in the case including the motion on notice before entertaining it.

Reference was made to page 37 lines 25 – 28 of the records. It was submitted that the appellant was put on notice before the learned trial Judge granted the interlocutory injunction. It is therefore the contention of the respondent that opportunity was granted the appellant to be heard when he was put on notice but he refused to come to court to be heard.

It is manifest from the records that on the 19th day of December, 2000 the learned trial Judge heard arguments solely from the respondent’s counsel and several legal authorities were cited before the court in support of the application for interlocutory injunction.

See pages 36 to 37 of the records. The respondent’s application can be found at pages 16 to 27 of the records. The learned trial Judge having heard the respondent’s counsel on the application said:
“… and being convinced by virtue of the affidavit of service of 14/12/2000 filed by one Odo Ekpo Archibong, Chief Bailiff that the defendant was served with the processes in this case including the said motion on notice, I hereby order as follows:

“That an interlocutory injunction be and is hereby granted, restraining the defendant/respondent, his workman, agents, servants, assigns and privies from erecting any structure or continuing with any construction work on the piece of land formerly occupied by the late Mr. Alfred O. Olaiya known as No. 18 Big Qua Town Road, Calabar or any part there of pending the determination of the substantive suit”.

From the above, it is patently clear that the learned trial Judge anchored the ruling of the court strictly and merely on the fact that the appellant had been served without more. It seems to me that the learned trial Judge jettisoned all the known principles of law governing the grant of interlocutory injunctions which is that the other side must be given the opportunity to be heard in opposition to the said application. Hearing to my mind cannot be deemed to be fair if a court, as was done in this case, decides a case on the evidence of one of the parties alone while ignoring the evidence of the other side.

In the case of Gever v. China (1993) 9 NWLR (Pt. 315) 97 at 106 Katsina-Alu, J.CA. (as he then was) held as follows:
… A situation where a party’s case is not considered on the ground that he was absent in court, in the circumstances of this case, is totally unwarranted.”

The above statement of Honourable Justice Katsina-Alu holds good for this case. It must be mentioned at this point in time that the absence of both the appellant and his counsel was explained in a letter written to the court as borne by the records. It must also be pointed out that a mere absence of the appellant from the court on the day fixed for hearing of the respondent’s application for interlocutory injunction did not mean that he had no defence to offer.

It seems to me therefore that the learned trial Judge was in error both in law and equity in granting an interlocutory injunction behind the back of the appellant without even setting down the said application for hearing and determination. The act of the learned trial Judge to my mind goes contrary to the laid down principles of fair hearing. Section 36(1) of the 1999 Constitution clearly provides that whenever the need arises for the determination of the civil rights and obligation of every Nigerian, the person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law.

Thus fair hearing in the con of section 36(1) of the 1999 Constitution encompasses fair hearing in the narrow technical sense of the twin pillar of justice, that is, audi alteram partem and nemo judex in causa sua, as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so. In the instant case, the interlocutory application of the respondent could only have been granted once the appellant was also heard.

Doing otherwise runs counter to the letter and spirit of section 36 of the 1999 Constitution because the order by its very nature depends on the resolution of the contentious issues raised. Under Order 33 rule 1(1) and (2) of the Cross River State High Court Procedure Rules, 1987, there is no provision whatsoever for the lower court to grant an interlocutory injunction ex parte except in cases of extreme urgency. There was no extreme urgency in this matter. It seems to me that an interlocutory injunction strictly means an injunction granted after due contest between the parties and to last until the final determination of the main suit and such applications are properly made on notice to the other party to keep matters in status quo until the determination of the suit. This is distinct from an interim injunction which is to preserve the status quo until a named date or until a further order, or until an application on notice can be heard, and they are for cases of real urgency.

The law frowns on ex parte orders granted at the back of a party especially where the appellant will be kept in that position without being heard or without deciding the merit of the interlocutory injunction. Thus, in Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419; (1989) 1 N.S.C.C. 238 at 252 Nnaemeka-Agu, J.S.C. held:
“This is the way I see the dicta of Griffith, C. J. in Thomas Edison Ltd. v. Bullock (1912) 1 SCLR 679 at p. 681 which Chief Williams has cited in argument. The learned C. J. said:
“There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence …”

I entirely agree with him. But there is nothing in the above dicta or in the case itself to warrant the hearing of an interlocutory application for injunction ex parte, indeed this court sounded much the same caveat per Ibekwe, J.S.C. (as he then was) when he stated in Woluchem v. Wokoma (1974) 1 All NLR (Pt. 1) 605 at 607.
“An interlocutory injunction has a binding effect until it is discharged. Failure to comply with it could lead to disastrous consequences, such as having to commit the offending party to prison for contempt. It is a well settled rule of practice in civil proceedings that the party to be affected by the order sought should normally be put on notice.”

In view of section 36(1) of the 1999 Constitution the lower court could not have deliberated on the contentious issues and come to conclusions on ex parte hearing or without hearing the appellant.
See Adigun v. Attorney-General, Oyo State (1987) 1 NWLR (Pt. 53) 678 at 709; Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628, (1996) 2 SCNJ 172 at 184.

I now move on to issue No.2 in the appellant’s brief which is one and the same thing as issue No.2 in the respondent’s brief.

It was submitted for the appellant that on the day the said application for interlocutory injunction was fixed for argument before the learned trial Judge, the learned counsel for the appellant wrote a letter dated 19th December, 2000 asking for an adjournment to enable him react on behalf of the appellant, to the application for interlocutory injunction. See page 28 of the records.

It was contended that the trial court ignored the letter and proceeded to hear the motion in the absence of the appellant’s counsel and the appellant himself. The court was duly informed of the application for adjournment but refused same, and went on to hear the motion behind the appellant. It was argued that the refusal to grant an adjournment was injudicious. It was submitted that the appellant was denied hearing altogether in circumstances that led to miscarriage of justice.

For the respondent, it was conceded that the right to fair hearing is entrenched in section 36(1) of the 1999 Constitution, breach of which completely vitiates the entire trial. Reference was made to the case of Adigun v. A-G., Oyo State (1987) 1 NWLR (Pt. 53) 678 at 709. It was conceded also that it is a cardinal principle of law that where a party is entitled to be heard before a decision is given in a case before the court, that party should be given an opportunity to be heard and present his case before the court. The case of NEPA v.  Eze (2001) 3 NWLR (Pt. 701) 606 at 618 – 619 was cited and relied upon.

But it was argued that the rule of fair hearing is not a technical doctrine, it is one of substance. Therefore, where there is a cry of the breach of fair hearing as in the instant case, it is the duty of the court to examine the proceedings to ascertain whether there is a breach.

Reference was made to the case of Kotoye v. CBN (supra). It was contended that the appellant was given the opportunity to be heard when he was put on notice. It was stated that the appellant was served with all the processes but he refused to come to court to be heard, therefore he cannot injustice and fairness complain of a denial of fair hearing.

I hold the view that it is the law that while an application for adjournment is made to a court, the court should bear in mind the requirement that justice should be done to both parties and that it is in the interest of justice that the hearing of the case should not be unduly delayed. It should grant it, if the refusal of the application is not likely to defeat the right of a party or be an injustice to one or the  other, unless there is a good or sufficient cause for the refusal. In Yisi (Nig.) Ltd. v. Trade Bank Plc. (1999) 1 NWLR (pt. 588) 646, this Honourable Court sitting at the Kaduna Division, held, in a similar case where the lower court refused the application of a counsel for adjournment, that such a refusal amounted to a denial of fair hearing and an injudicious exercise of judicial power. The lower court, when confronted by an application for an adjournment as was the case here, ought to have exercised its discretion judiciously and judicially.

Notwithstanding the application before the court for an adjournment, the learned trial Judge refused to acknowledge the existence of such an application. It seems to me that this refusal is not only untenable but also manifestly unsupportable.

This court also held in Owena Bank (Nig.) Plc. v. Muhammed (1998) 1 NWLR (Pt. 533) 301 at 307 – 308 per Ogebe, J.C.A. that:
“It is a well known principle of law that the question of an adjournment of a matter is entirely within the discretion of a trial court … The question of whether or not a matter should be adjourned or continued must always be decided judicially and judiciously, the exercise must not be capricious or made in such a way that injustice would result to either party”. In the circumstances of this case, I hold the strong view that the learned trial Judge could have even adjourned the matter without a formal application from the appellant for adjournment in the interest of justice. As the matter as borne by the records was coming up before the learned trial Judge for the first time, there really was no hurry to hear it especially taking into consideration the fact that she had earlier refused the respondent’s application ex parte.

It seems to me that refusing to adjourn the matter and granting the respondent’s application for interlocutory injunction was arbitrary and a denial of a fair hearing to the appellant.

In Bamawo v. Garrick (1995) 6 NWLR (Pt. 401) 356 at 367 368, this Honourable Court also held that where an adjournment is sought by a party to a case, the application must first be resolved before a decision is reached as to whether or not to proceed with hearing of the matter.

Doing otherwise would mean violating the principle of fair hearing as enshrined in section 36(1) of the 1999 Constitution without giving the patry seeking for adjournment the opportunity of stating his own case. Order 8 rule 6 of the High Court (Civil Procedure) Rules, 1987 provides as follows:
“The hearing of any motion may from time to time be adjourned upon such terms as the court may think fit.”

From the above authorities, I have no doubt in my mind that the appellant’s constitutional right to a fair heating was violated by a refusal by the learned trial Judge to first consider the application for adjournment before proceeding to hearing the respondent’s application.

The final issue for determination in this appeal is issue No.3 reproduced supra. It was submitted by learned counsel for the appellant that the appellant was served with the writ of summons together with the motion on notice on 14th December, 2000. See page 28 of the records. It was further submitted that the writ of summons directed that appearance be entered within eight days after service. It was stated that the appellant’s counsel entered appearance on 18th December, 2000, that is the fifth day after service. Reference was made to page 29 of the records. It was contended that the respondent’s motion on notice came up for hearing on the 19th December, 2000, that is the sixth day after appellant was served, wherein the learned trial Judge heard arguments in support of the application for and granted an order of interlocutory injunction against the appellant.

Issue No.3 in the respondent’s brief is similar to issue No.3 in the appellant’s brief which relates to ground 3 of the appellant’s grounds of appeal. For the respondent on issue No.3, it was submitted that the appellant agreed that he was served with the writ of summons together with the motion on notice on 14th December, 2000.

Reference was made to page 28 of the records. He entered appearance 5 days thereafter on 18th December, 2000. It was contended that the motion was fixed for hearing on the 6th day of the service of the processes on him, that is, 19th December, 2000. According to the appellant, it was submitted, he still had two days that is, up to 21st December, 2000 to come to court to contest the motion on notice since the writ of summons allows him 8 days to enter appearance. It is the contention of the respondent that learned counsel for the appellant contended on behalf of the appellant that the interlocutory injunction granted by the trial court before the 8 days limited in the writ of summons for entering appearance was granted without jurisdiction and thus null and void.

In respect to issue No.3 in both briefs, it is my view that the answer to the problem of jurisdiction posed is contained in the case of Ita v. Nyong (1994) 1NWLR (pt. 318) S6 at page 72 where Uwaifo, J.C.A. (as he then was) had this to say:
“I think it was sufficient that the defendant had been served with the writ of summons and the application for interlocutory injunction. The fact that he defaulted in entering an appearance by filing a memorandum of appearance cannot deprive the court of jurisdiction to entertain the application. The memorandum of appearance is simply to indicate that the suit will be contested. But the application for an interlocutory injunction following the service of the writ of summons is another court process which will succeed or fail on its merit and not on whether a memorandum of appearance has not been entered even though it is undisputed that the defendant has been served both processes.”

See Dike v. Union Bank Ltd. (1987) 4 NWLR (Pt. 67) 958.

From the above authority, I do not agree with the learned counsel for the appellant that the lower court had no jurisdiction to make the order it made until the expiration of the eight days stated in the writ of summons. In the final analysis, this appeal is meritorious and it is therefore allowed. I discharge the order of interlocutory injunction granted by the lower court on 19th December, 2000. I award 5,000.00 costs in favour of the appellant against the respondent.

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Other Citations: (2003)LCN/1442(CA)

Eyo Okon Eyo V. Chief Akinwunmi Ricketts (2003)

LawGlobal-Hub Lead Judgment Report

RAPHAEL OLUFEMI ROWLAND, J.C.A.

This is an appeal against the Ruling of Eneji, J. of the Cross River High Court sitting in Calabar Judicial Division delivered on 9th day of August, 2001. The Court granted an interlocutory order of injunction restraining the Appellants from trespassing or continuing to trespass and to stop committing any other acts of trespass in any other form on the land pending the determination of the suit.

The facts of the case as borne by the records run thus:

The 1st Appellant applied for a plot of land from 2nd Appellant in 1992. The 2nd Appellant after processing the 1st Appellant’s application offered him a lease of the land in dispute on the 17th September, 1993, the offer was accepted by the 1st Appellant by making payment.

On the part of the Respondent, he also claimed to have been given a provisional offer of lease of the same plot by the 2nd Appellant in 1997 four years after the 1st Appellant claimed that he was allocated the plot. The 2nd Appellant stated that the plot was provisionally offered to the Respondent in error.

The Respondent then applied for interlocutory injunction restraining the Appellants from trespassing into the Land. The learned trial Judge granted the application in toto. The 1st Appellant and the respondent derive their title from the 2nd Appellant but the 2nd Appellant stated that it made the offer to the Respondent in error and that the 1st Appellant had been in an undisturbed possession. The 1st Appellant is said to have built a three building on the land. The Respondent also claimed to have built a fence on the land. As I have adumbrated above the Court below granted an interlocutory injunction in favour of the respondent. Dissatisfied with the decision of the lower court the appellants have brought this appeal to this Court on a number of grounds of appeal.

From the grounds of appeal the appellants raised three issues for determination.
They read:
“1. Whether the learned trial Judge in his ruling did not decide the main issue in the substantive suit without hearing and said the status quo be maintained.
2. Whether the learned trial Judge was right in holding that monetary compensation will not be adequate and then grant interlocutory injunction when pecuniary damages is claimed in the main suit.
3. Whether the learned trial Judge judiciously and judicially exercised his discretion in holding that the balance of convenience this in favour of the respondent and also failing to undertake to pay damages.”

The respondent formulated one lone issue for determination as follows:
“1. Whether the learned trial Judge upon the evidence before him exercised his discretion judicially and judiciously based on the relevant principles and considerations for the grant or refusal of interlocutory injunction.”

On the 1st issue for determination, the learned Counsel for the appellants in their counter affidavit stated that the 1st appellant has been in undisturbed possession of the land in dispute from 1993 as evidenced in his allocation letter. According to Counsel for the 1st appellant the 1st appellant built the fence and he is therefore not a trespasser. It was contended that the ruling of the learned trial Judge has decided the issue in the substantive suit without any clear cut evidence.

Learned Counsel for the appellant also submitted that the prayer for the interlocutory order is similar to the one in the substantive suit. That is the more reason why the court ought not to have granted the application rather should have ordered accelerated hearing as requested by the appellants it was submitted.

It is the contention of the appellants that the respondent in his affidavit admitted that the appellant was in possession of the land and building on the land. It was contended that in spite of this clear admission of fact the learned trial Judge still restrained the appellants in order that the status quo ante be preserved.

The respondent’s brief did not answer issue No.1 in the appellant’s brief. The only issue formulated by the respondent is akin to issue No.3 in the appellants’ brief. I have read carefully the ruling of the learned trial Judge and I am convinced that the said ruling has decided the issue in the substantive suit without any clear cut evidence. The ruling adjudged the appellants trespassers and found that the respondent is the owner of the land in dispute without clear cut evidence before him. It seems to me therefore that the decision of the lower court was not judicious. See the case of Okpokiri v. Okpokiri (2000) 3 N.W.L.R. (pt 649) 461 at 472 per Edozie J.C.A. (as he then was).

He said:
“A court should be wary not to decide the main question or issue in the substantive suit while dealing with an interlocutory application for injunction or any other interlocutory application otherwise the court would be acting in violation of the right of fair hearing, that is, audi alterem pert em principle of natural justice. In the instant case, the substantive issue between the parties is the ownership of the property in dispute and this issue calls for determination only after due trial.

The learned trial Judge in his ruling on the respondent’s application for injunction however held that the respondent was the owner of the property in dispute. In the circumstances, the trial Judge had determined the main issue in the suit without a hearing and in breach of Appellant’s fundamental and constitutional right to fair hearing and the entire proceedings including the ruling of the trial Judge is a nullity.” See Nigerian Civil Service Union v. Essien (1985) 3 N.W.L.R. (pt 12) 306.

It seems to me that it is immaterial that the prayer for the interlocutory Order is similar to the one in the substantive suit that is the more reason why the Court ought not to have granted the application rather should have ordered accelerated hearing as requested by the appellants. See Ogbonnaya v. Adapalm (Nig) Ltd. (1993) 5 N.WL.R. (pt 292) 147; F.A.T.B. v. Ezegbu (1993) 6 N.WL.R. (Pt 297) 1; Onwuegbu v. Ibrahim (1997) 3 N.W.L.R. (pt 491) 110.

In Okpokiri v. Okpokiri (supra) Edozie J.C.A. (as he then was) said further:
“If a motion seeks an Interlocutory Relief which is substantially the same as the relief in the substantive matter, the best course for the trial court is to adjourn the Interlocutory application and accelerate the hearing of the substantive suit.”

The Respondent in his Affidavit admitted that the Appellant was in possession of the land and building on the land. In spite of this clear admission of fact the learned trial Judge still restrained the appellants in order that the status quo ante is preserved.

I am of the view that maintaining the status quo means keeping the situation of things as they were as at the time. The 1st Appellant embarked upon the activities sought to be restrained. Further, the granting of an interlocutory injunction as a result of which possession would be transferred from the 1st appellant to the respondent will be contrary to the principles of maintaining status quo in the case until the determination of the suit. See Queen v. Adaroh (1999) 1 N.WL.R. (pt. 586) 330; Oduntan v. General Oil Ltd. (1995) 4 N.W.L.R. (pt 387) 1; Ayorinde v. Attorney-General Oyo State (1996) 3 N.W.L.R. (pt 434) 20.

In the case in hand the overland of the respondent and the 1st Appellant confirmed the possession status of the 1st appellant and yet the learned trial Judge ordered that status quo ante be preserved and restrained the 1st appellant who has been in possession of the land for four years before the respondent claimed that the land had been allotted to him.

I now move on to the second issue for determination. The learned Counsel for the appellants said that the respondent in his submission to the lower court claimed that he will suffer irreparable damage if the order of interlocutory injunction is not given and that monetary compensation will be inadequate. This in spite of a claim for pecuniary damage of N50, 000,00 (Fifty Million Naira).

It was submitted for the appellants that where pecuniary damage is claimed in the main, interlocutory order of injunction should not be granted. It was submitted that the reason for this is that one of the main conditions for the grant or refusal of interlocutory injunction is that damages cannot be adequate compensation for the damages or injury if he succeeds at the end of the day.

I must point out that the respondent did not formulate any issue in the respondent’s brief akin to issue NO.2 in the appellant’s brief. I must say that it is manifest from the records that in the case in hand the respondent made a whooping claim of special and general damages of Fifty Million Naira (N50, 000,000.00). In the circumstances, the lower court to my mind, ought not to have granted the respondent the interlocutory order of injunction as this matter is a clear case where damages is claimed which invariably means damages can compensate the respondent if the need arises.

The last issue for consideration in this case is issue No.3, which is, whether the learned trial Judge judiciously and judicially exercised his discretion in holding that the balance of convenience is in favour of the respondent and also failing to undertake to pay damages.

It was submitted that the 1st appellant in his counter affidavit, statement of defence and the respondent in his affidavit and statement of claim all state that the 1st appellant has put up a structure on the land and therefore in the circumstances of this case an interlocutory injunction will work hardship on the 1st appellant.

As I have said above, the respondent in his brief framed only one issue for determination in this appeal. It is whether the learned trial Judge upon the evidence before him exercised his discretion judicially and judiciously based on the relevant principles and considerations for the grant or refusal of interlocutory injunction. This issue of the respondent is one and the something with issue NO.3 in the appellants’ brief. The respondent contends that the trial Court weighed the competing interest of the appellants and the respondent and in time with the relevant principles for the grant of interlocutory injunction found as a fact that this case is one deserving of the grant of an order of interlocutory injunction. It was submitted for the respondent that an appellate court cannot interfere with the exercise of the right of discretion of a trial court except when it is perverse.

It was contended that the principles upon which the trial Court granted the application for the injunction are well settled in the following cases: Obeya Memorial Hospital v. A.G. Federation (1987) 3 N.W.L.R. (pt 60) 325; Saraki v. Kotoye (1990) 4 N.W.L.R. (pt 143) page 44, Ita v. Nyong (1994) 1 N.W.L.R. page 318. It seems to me that under the modern practice it suffices to say that there are only three questions, which the Court can ask in a matter of interlocutory injunction.

These are:
(1) Is there a serious question to be tried?
(2) If so, will damages be adequate compensation for the temporary inconvenience?
(3) If damages will be inadequate compensation, in whose favour is the balance of convenience?
See American Cynamid Co. v. Ethicon Ltd. (1975) A.C. 396; Obeya Memorial Hospital v. A.G. Federation (1987) 3 N.W.L.R. (pt 60) 325 at 337; Kotoye v. Central Bank of Nigeria (1989) 1 N.W.L.R. (pt 98) 419 at 441.

As I have said above, I have no doubt in my mind that the ruling has decided the issue in the substantive suit before him without any clear cut evidence, this is because he has adjudged the appellants trespassers and found that the respondent is the owner of the land as clearly shown in his ruling restraining the appellants from “continuing further acts of trespassing on the plaintiff’s piece or parcel of land.”

See also the case of Okpokiri v. Okpokiri (supra). It must be said also that a ruling on an interlocutory matter should not render nugatory the substantive suit. See Egbe v. Onogun (1972) 1 All N.I.R. 95 at 98 or (1972) 2 S.C. 146.

I also do not agree with the learned trial Judge in his holding that monetary compensation will not be adequate and then granted interlocutory injunction when pecuniary damages is claimed in the main suit. See pages 37-38 of the records. Although the matter before the lower court has to do with exercise of discretion but this court can interfere if the discretion was not judiciously and judicially exercised. It is manifest from the records that the learned trial Judge did not judiciously and judicially exercise his discretion in holding that the balance of convenience is in favour of the respondent and also failing to undertake to pay damages.

It must be mentioned also that an Appeal Court will normally not disturb findings of facts of a trial court unless such findings are shown to be perverse; See Incar Nigeria Ltd. v. Adegboye (1985) 2 N.W.L.R. (pt 8) 453; M. O. Obasanya v. Ebenezer Nwoko & Anor (1974) 1 All N.L.R. (pt 1) 420 at 428.

From all that I have said hereinbefore in this judgment, it is my conclusion that this appeal is meritorious and it is therefore allowed. I set aside the order of interim injunction restraining the appellants from trespassing on the land which is the subject matter of this appeal. For the avoidance of doubt, I set aside the ruling of Eneji, J. of the Cross River State High Court sitting in Calabar Judicial Division delivered on the 9th day of August, 2001.
I award N5, 000.00 costs in favour of the Appellants against the Respondent.

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Other Citations: (2003)LCN/1441(CA)

Abubakar a. Bagudu V. The Federal Republic of Nigeria & Ors. (2003)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A.

The appellant as plaintiff took out a writ against the respondents being defendants at the court below. This was on 15th November, 2001. And what was the writ for? It was for the following claims:

1.A declaration that the decision of the 1st and 2nd defendants to bring and the bring of criminal proceedings against the plaintiff are contrary to the provisions and effect of the Forfeiture Of Assets, Etc. (Certain Persons) Decree No.53 of 1999 and are therefore unlawful, illegal, null and void.

2.A declaration that all the counts in the criminal charges CR/21/2000, CR/22/2000, CA/23/200, and relating to the plaintiff are null and void in so far as they are contrary to the provisions and effect of the Forfeiture Of Assets, (Certain Persons) Decree No.53 of 1999.

3. A declaration that by virtue of the Forfeiture Of Assets, Etc. (Certain Persons) Decree No.53 of 1999 and in the circumstances which have happened, no criminal or civil proceedings can be commenced or continued in Nigeria or abroad against the plaintiff in connection with security votes, all monies returned by him and Mohammed Abacha to the 1st defendant, and all sums of monies specific in Part II of the Schedule to the said Decree.

4. An order for perpetual injunction restraining each of the defendants jointly and severally, whether acting by themselves, their servants or agents, from commencing, causing to be commenced, continuing, causing to be continued, or assisting with in any way whatsoever any criminal or civil proceedings in any other jurisdiction in the world against the plaintiff in connection with security votes, all monies returned by him and Mohammed Abacha to the 1st defendant, and all sums of specified in Part II of the Schedule to the Forfeiture Of Assets, Etc. (Certain Persons) Decree No. 53 of 1999.”

Parties shall from now on be called appellant and respondents respectively.

Respondents filed their statement of defence to the allegations made by the appellant in his statement of claim. Thereafter, respondents filed a preliminary objection as to the competence of appellant’s action. By extension, the jurisdiction of the trial court was thereby challenged. Arguments of counsel were heard. The court below upheld the objection of the respondents in its considered ruling of 28th May, 2002.

Appellant is aggrieved by the ruling. He has appealed to this court on seven grounds.
Both parties in the instant appeal have filed and exchanged

The appellant has formulated seven issues for our consideration in determining the appeal. These are:-
“1. Whether the respondents’ preliminary objection dated 13th February, 2002 and filed on the 14th February, 2002 was the proper application for arguments before the court on the 17th of April, 2002 or the so-called points of law raised in paragraph 7 of their statement of defence dated 4th January, 2002.
2. Whether the issue of exercise of power by the Attorney-General was an issue before the court for which the appellant ought to have responded.
3. Whether the grounds and affidavit in support before the court support the reliefs sought by the respondents.
4. Whether the basis of adjudication is the anticipation of issues raised or an application before the court.
5. Whether on the claims in this suit, the reliefs sought is strictly the issue of perceived illegality of the Attorney-General’s criminal proceedings before the High Court of Justice, Abuja for which the appellant could be said to have abused the process of the court by the filing of the suit.
6. Whether a court of co-ordinate jurisdiction can be said to lack jurisdiction in all suits before another and or the same court where the subject-matter or parties bear some similarities.
7. Whether there is any issue before the court on the cleanliness or otherwise of the appellant before the court to necessitate the aspersions cast by the learned trial Judge.”

The two issues formulated by the respondents are:-
“(1) Whether the learned trial Judge was right in law when he declined jurisdiction and struck-out the plaintiff/appellant’s suit on the basis of the defendants/respondents’ notice of preliminary objection.
(2) Whether the respondents’ filing of the notice of preliminary objection pursuant to the preliminary point of law raised on their statement of defence was right in law and/or at law.”

At the hearing of the appeal, parties adopted their briefs. They sought also to address this court in further stressing the points contained in the briefs. I find their address repetitive of the positions canvassed in the briefs.

Let me summarise the arguments canvassed by the appellant in urging us to allow the appeal.
Firstly, appellant’s counsel contends that the preliminary objection as to the competence of his suit was never before the court below on 17th April, 2002 when it was purported to be heard. It is argued that the respondents’ motion dated 4th January, 2002 as filed sought two reliefs from the court. Respondents prayed for enlargement of time to enable them file their statement of defence outside the time prescribed by rules of court. They also prayed that the statement of defence that had been so filed and served be deemed properly filed and served. Respondents’ third prayer, appellant submits, is for the point of law raised in paragraph seven of the respondents statement of defence to be set down for hearing. These requests came up for the court’s consideration on 27th February, 2002.

The court, appellant further contends, made the following two orders:-
(i) “Motion dated and filed on 4th January, 2002 asking for enlargement of time to file defendants’ statement of defence and deeming same as properly filed and served is hereby granted as prayed” and
(ii) “Motion is granted as prayed and the point of law set down for hearing on 11th April, 2002.”
Appellant has surmised that from the foregoing orders of the court, what was adjourned to 11th April, 2002 and eventually taken on 27th April, 2002 was the point of law contained in paragraph seven of the respondents’ statement of defence and not their preliminary objection that was filed on 14th February, 2002. The appellant in consequence submits that the objection considered and decided by the court inspite of content of paragraph 7 of respondents’ pleading was a resort to a procedure unknown to law. The procedure was to the detriment of the appellant. The lack of co-ordination and certainty in the conduct of proceedings by the court below had prejudiced the appellant’s cause.

The proceedings, appellant contends, should be declared void. Appellant has relied upon Ajayi v. Ajomo (2000) 14 NWLR (Pt.688) 447 at 449 and Arinze v. Nwoafia (2000) 4 NWLR (Pt.653) 464.
Secondly, appellant contends that even where the objection raised by respondents is conceded to be properly before the court, the objection never was to the effect that the appellant by his writ was challenging the exercise of power of the Federal Attorney-General.

The court’s scathing remarks on appellant’s counsel for failing to address such an issue was accordingly unfair. Counsel and indeed the court could only address issues that were in fact and properly raised. Appellant has referred and relied on Awoniyi v. Registered Trustees of Amorc (2000) 10 NWLR (Pt.676) 522 and Ademola v. Sodipo (1992) 7 NWLR (Pt.253) 251.

Thirdly, appellant argues that grounds upon which respondents based their objection to the competence of his suit as well as the affidavit in support of the objection did not support the reliefs sought by the respondents. Applications not supported by affidavits or based on grounds which do not support the reliefs sought stand in breach of Order 9 rule 2(1) and 3 of Federal High Court (Civil Procedure) Rules, 2000. Such applications being incompetent must be struck out. Appellant here commends the decision in Magnusson v. Koiki (1993) 9 NWLR (Pt.317) 287 at 291.

Appellant argues further that his pleadings and in particular the reliefs he sought from the court below were asked in the light of Decree 53 of 1999. The Decree, it is asserted, offered appellant protection. The reliefs sought of the court were declaratory which, by S. 251 (1)(v) of the 1999 Constitution, the court had powers to grant. Invocation of the powers of the trial court to make orders it could legitimately make cannot constitute an abuse of the process of such a court. The parties and subject-matter in the suit before the court below were not the same as those before the Abuja High Court to sustain a case of abuse of process of court. The court’s findings as to abuse of its process by the principle evolved in Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 196, is accordingly unfounded.

Appellant has also contended that the trial court is wrong in declining jurisdiction on the basis that it is a court of co-ordinate jurisdiction with the Abuja High Court. Appellant’s case as pleaded is that the Abuja High Court had no jurisdiction to try him because of the protection granted him by Decree 53 of 1999. The court, on the authority of Okoye v. Nigeria Construction and Furniture Company Ltd. (1991) 6 NWLR (Pt.199) 501, was competent to issue all the declarations asked of it.

Finally, appellant submits that the court’s negative and nasty comments on the appellant and his counsel were unfair. The comments have depicted the Judge’s hatred and animosity against the appellant. They had also fatally eroded the court’s decision.

Appellant relies on Hayes v. Hayes (2000)3 NWLR (Pt.648) 276.

Respondents chose to argue the instant appeal within the con of the issues they formulated. Given what transpired at the court below and the complaints appellant appears to have made against the decision of that court, the issues formulated by the respondents seem most direct and apt. They readily provide for a just resolution of the complaints raised by both sides to the appeal. The issues are more down to earth. Consideration of arguments advanced by parties to the appeal is better done in the light of these issues. That would be done eventually.

Now, what are the arguments advanced by the respondents?

Their arguments are summarised immediately.

Respondents have referred to the claim of the appellant against the background of S. 174(1) (a)(b) and (c) of the 1999 Constitution and submit that appellant’s suit had sought to challenge the powers of the Attorney-General as spelt out. The appellant was arraigned before an Abuja High Court in respect of criminal charges.

Appellant’s case at the court below is that he had been protected from prosecution. Respondents have cited the Supreme Court’s decision in The State v. Ilori & Ors. (1983) 1 SCNLR 94, (1983) All NLR 84 at 92 in submitting that appellant could not have maintained his action Decree 53 of 1999 not withstanding.

Respondents also contend that both the Abuja High Court where – at the appellant was being tried and the court below whereat appellant chose to challenge the exercise by the Attorney-General of his statutorily conferred powers, are courts of co-ordinate jurisdictions. By the combined operation of S. 6(3) and (5) and S.251 of the 1999 Constitution, the court below was in no position to declare the criminal proceedings pending in a court of equal status illegal. It is also respondents contention that since the reliefs sought from the court below were equitable ones, having absconded from his trial at the Abuja High Court, appellant cannot with such unclean hands press for such reliefs.

Respondents have insisted that appellant’s suit at the lower court was an abuse of court process and the court below was right to have struck same out. Respondents have asked us here to invoke the principle evolved in Ikhine v. Edjerode (2001) 18 NWLR (Pt.745) 446; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 and C.B.N. v. Ahmed (2001) 11 NWLR (Pt.724) 369

Finally, respondents submit that their statement of defence, paragraph 7 thereto, had raised a preliminary point of law pursuant to which their notice of preliminary objection was filed. They have been in complete compliance with Order 25 (2)(1) & (2) and Order 26(2) (2) of the Federal High Court (Civil Procedure) Rules, 2000.

The lower court was, accordingly, right to have set down their objection for hearing before the commencement of trial. Appellant cannot be heard to say that the preliminary objection eventually heard was different in content from the preliminary point raised in respondents’ pleading. The two are the same and very clear as to what they set out to achieve. Having regard to the decision in A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552, respondents submit, appellant’s issues i, ii, iii, iv & v must be adjudged wrongly premised and rejected.

Respondents have asked in conclusion for the dismissal of this appeal.

The issues formulated for the determination of this appeal revolve principally on the appellant’s right to challenge the exercise by the 2nd respondent, the Attorney-General of the Federation, of the powers conferred on him by section 174 of the 1999 Constitution.

There are two subsidiary questions which yearn for answers as well.

The question, whether or not the lower court had considered a matter not before it needs to be resolved and if it did the effect such would have on the decision appealed against. Lastly, answers must be found as to whether the comments of the court below on the appellant and his counsel were so prejudicial as to warrant us up-turn the court’s decision.

Certain facts are common to both sides and therefore not in dispute. These include the fact that appellant was arraigned before an Abuja High Court over certain criminal allegations. That appellant had absconded trial is implied from the facts deposed to by both sides. The claim of the appellant before the court below earlier reproduced in this judgment is not in controversy as well.

Appellant’s prayers at the court below were all for declaratory reliefs. The predominant judicial approach is that grant of such reliefs, being discretionary, has always been one that dictates great caution before it is made. They are reliefs that are never lightly granted. The power to grant such reliefs has always been sparingly put to use and with the utmost caution. Courts have been admonished that this discretionary power “should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making.” That is what the Supreme Court said in Abase v. Agorae (1970) 1 All NLR 21 at 26.

It has accordingly become the practice over the years to refuse the grant of declaratory reliefs if a grant would be “unlawful or unconstitutional or inequitable or contrary to accepted principles upon which the court exercises jurisdiction. See Guaranty Trust Company of New York v. Hanna and Company (1915) 2 KB 536 at 572; Ekwuno v. Ifejuka (1960) SCNLR 320, (1960) 5 FSC 156 and Ibeneweka v. Egbuna (1964) 1 WLR 219. This very court in the unreported appeal No. CA/15/M/2003 per Oguntade, JCA has emphatically restated the foregoing stance. The position is sensible.

These decisions bind this court and the court below as well. The principle they evolve provides the tangent for the resolution of the principle issue in the instant appeal.

Appellant by his claim was praying the court below to declare that by virtue of Decree 53 of 1999, the exercise by the 2nd respondent of the power spelt out in section 174 of the 1999 Constitution was unlawful. Appellant was protected from being touched by the powers. He could not be prosecuted for the offences for which he was arraigned before the Abuja High Court. Would such a declaration be lawful, constitutional or even equitable to make in the circumstance? One thinks not.

I must agree with the respondents’ counsel and more so with the court below that it would have been illegal to oblige the appellant his reliefs.

Firstly, it must be realised that Decree No. 53 of 1999 by virtue of S.315 of the 1999 Constitution is at best an existing legislation, which is, in term of hierarchy, below the Constitution. Such legislations where they stand in conflict with the Constitution, a more superior legislation, are negative to the extent of such  inconsistency. See Ifegwu v. Federal Republic of Nigeria (2001) 13 NWLR (Pt.729) 103 CA and Ikine v. Edjerode (2001) 18 NWLR (Pt.745) 446 SC.

In any event, my examination of Decree No. 53 1999, now an Act, does not reveal the purported immunity appellant seems to be claiming thereunder. No where has the Decree provided that the powers of the 2nd respondent under section 174 of the Constitution should not be exercised against the appellant. If it were so stated, it remains my firm view that the concept of hierarchy of legislations, that very provision would still remain inoperative. 2nd respondent cannot be stopped from exercising those powers conferred on him by the Constitution.

What are the powers and what did the 2nd respondent do in relation to them vis-a-vis the appellant.
Section 174 provides:-
“(1) The Attorney-General of the Federation shall have power:-
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court martial, in respect of any offence created by or under any Act of the National Assembly.
(a) Not applicable
(c) Not applicable
(2) The powers conferred upon the Attorney-General of the Federation under subsection(1) of this section may be exercised by him in person or through officers of his department.
(3) In exercising his power under this section, the Attorney- General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process”. (Italics supplied).

The foregoing provisions of the Constitution are as plain and ordinary as they possibly can be. By ascribing to the words which constitute the provisions their ordinary meaning, even a lay person can understand their import. Put starkly as we must, the 2nd respondent contrary to what the appellant wanted the court below to declare, has the power to and therefore lawfully commenced proceedings against the appellant. See Misc Offences Tribunal v. Okoroafor (2001) 18 NWLR (Pt.745) 295 SC and Madu v. N.U.P. (2001) 16 NWLR (Pt.739) 346. Even on the face of this constitutional provision alone, assuming without conceding that appellant could challenge exercise of such powers it would still be impossible given the facts of the instant case for the court below to declare that 2nd respondent was not acting in “the public interest, interest of justice and the need to prevent abuse of legal process.” Courts must not act in vain!

Appellant has asked us to consider the effect of the statement of the court below at page 757 of Volume 2 of the record of appeal on the court’s eventual decision. He says the statement is so prejudicial to his cause that it should negative the decision he appeals against. The court’s statement that “appellant’s hands are not clean and cannot seek redress from this Honourable Court with his dirty hands” may be a little too hard and off-handish. Most certainly, the appellant’s hands remain clean until proved otherwise.

It is the law that the dirt which the court has ascribed to them was only apparent with the trial commenced by 2nd respondent against the appellant yet to be concluded. Inspite of this position of the law, the lower court was in the lawful position to note, in the exercise of its discretion, the fact that appellant had chosen to flee from prosecution.

Innocent men do not run away from the law. Facts are sacred. 2nd respondent no matter how pervading his powers are was in no position to manufacture them where they never existed! One is of the firm view that the court below would have arrived at the same conclusion it did even without the comments on the absence of appellant from trial. One insists that section 174 of the 1999 Constitution cannot be compromised.

Now, respondents have tenaciously held unto the Supreme Court’s decision in The State v. Ilori & Ors. (1983) 1 SCNLR 94, (1983) All NLR 84 at 92. They should. Respondents cannot be denied their right of employing a decisively correct weapon. Again they know, and it is so, that the decision binds this court as well as the court below. See Odugbo v. Abu (2001) 14 NWLR (Pt.732) 45 SC and Anaedobe v. Ofodile (2001) 5 NWLR (Pt.706) 365. Beyond the doctrine of stare decisis, it must be pointed out that in the light of the facts of the instant case, the decision in Ilori v. The State supra is a just and well enunciated principle of law.

The lower court is right in holding that the 2nd respondent in the exercise of his powers of instituting proceeding against the appellant is on a “preeminent” and “incontestable” position, a “master” “Lord” unto himself with powers that cannot be reviewed by any court! One recognises this fact as courts have always done even before the decision in Ilori Supra. See Shittu Layiwola v. Queen (1959) SCNLR 279; (1959) 4 FSC 109; R. v. Adedoyin (1959) SCNLR 484; (1959) 4 FSC 185; R. v. Sey (1950) 13 WACA 128 and State v. Chukwurah (1964) NMLR 64. The principle relied upon by the trial court is of antiquity. It is hereby affirmed as well.

Appellant has contended that the preliminary objection ruled upon by the court below was never before the court for same to be considered. If it were so, what application did both sides argue and did the said application raise the very same issue addressed by the court? It is desirable to restate the facts relevant to this issue.

The motion filed by the respondents on 4th January, 2002 at the court below had prayed the court for enlargement of time to enable respondents file their statement of defence out of time, deeming the said statement that had already been filed along with the application as properly filed and served and, finally, for a 3rd relief “setting down for hearing the point of law raised in paragraph 7 of the statement of defence.”

Paragraph 7 of respondents’ statement of defence that was eventually set down for hearing following the grant on 27th February, 2002 of all the reliefs asked of the court reads:-
“7. The defendants shall also at the trial of this suit raise preliminary points of law that the statement of claim and the reliefs sought in law discloses no cause of action against them and or in the alternative that the reliefs sought cannot be granted by this honourable court as constituted and conceived by the plaintiff.”

The court in granting the three reliefs set down the point of law as raised above for hearing against 11th April, 2002. It is significant to note that even as at the time the court was making this order, respondents had a further notice of preliminary objection challenging the competence of the appellant’s action before that court. It was filed on 13th February, 2002. It was this notice of preliminary objection that respondent drew the attention of the court below to on resumption of business on 17th April, 2002. Indeed it was, from the record, the process that was taken by the court on this fateful day.

Appellant has argued that the preliminary objection that was considered by the court below had not been provided for by the Order 25 rules 1, 2, 3 and 4 of the Federal High Court (Civil Procedure) Rules, 2002. It might well be so. However, appellant’s attention needs to be drawn to Order 3 rules 1(1) and (2)(1) of the rules of the court below.

Appellant’s bid to set aside the decision of the court below because of the court’s seeming non compliance with Order 25 rules 1 – 4 is too late in the day. That apart, on discovery of the slip, appellant had participated fully in the proceedings that has given rise to the instant appeal. This is no era of technicalities in adjudication. Because appellant has not suffered any injustice following the non compliance, the slip has become an irregularity incapable of up-turning an otherwise sound decision.

Undoubtedly, the notice of preliminary objection is based on grounds which are on all fours with the preliminary point of law contained in paragraph 7 of the respondent’s statement of claim that should have been taken on the fateful day. Appellant was not misled as to why the competence of his action at the court below was challenged by the respondents. If anything, respondents by filing and moving their notice of preliminary objection were only being abundantly cautious!

Appellant, one must agree with the respondents, has failed to cross one other hurdle which he must before he obtains the reliefs he seeks. Appellant asked the court below to declare the action commenced by 2nd respondent at the Abuja High Court incompetent.

The two courts are of co-ordinate jurisdictions. Generally, because the two courts are of equal status, the court he approached is not competent to grant the reliefs appellant has asked.

It was for the appellant to convince the court below that his reliefs had fallen within the exceptions to the general rule to enable the court review the decision of such other court of equal jurisdiction.
The appellant did not. In his particular circumstance all that appellant needed to do where 2nd respondent had decided to exercise his pervading powers against the former was to show that the Abuja High Court had no jurisdiction to proceed with the trial. He did not.

The other conditions under which the court below could have granted appellant’s relief as enunciated in Okoye v. Nigerian Cons. & Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 at 547 do not seem to be applicable to the case at hand. Most certainly appellant cannot now be heard to be saying he was being prosecuted in his absence!

Nothing stopped him from attending his trial. Appellant’s argument that Decree 53 of 1999 had protected him such as to render his trial a nullity, it has already been said, does not hold water at all.

The decree did not.

The lower court has held appellant’s resort to it as an abuse of its process. Appellant has contested this finding. He asserts that the subject matter in the suit before the Abuja High Court and the court below are not the same to justify the position taken by the court.

The phrase “abuse of court or judicial process” is more than what the appellant posits it connotes. Where the court as in the instant case finds the suit commenced by a party to be “vexatious” and if one may add “false” it would be perfectly in order if it concludes that its process is being abused. In consequence, it declines jurisdiction over such a cause. See Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156.

The foregoing effort should resolve the germane issues identified in this appeal.
The said issues are all resolved against the appellant.
As a whole, the appeal has no merit. It is accordingly dismissed.

I award costs of N7,500 against the appellant in favour of the respondents.

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Other Citations: (2003)LCN/1440(CA)

Minister of Internal Affairs & Ors V. Edmund Okoro & Ors (2003)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A.

This appeal is against the ruling of Ajakaiye, J. of the Federal High Court, Enugu delivered on 23-1-2001. The ruling was on a motion on notice filed by the respondents in this appeal as applicants seeking the following relief:-
“An order of mandamus against the 1st respondent directing him to give effect to presidential amnesty granted to death row inmates, which include the applicants, by the President of Federal Republic of Nigeria on the 4th of January, 2000”.

The application was supported by the statement of the applicants and a 13 paragraph affidavit. The respondents who opposed the application filed a 6 paragraph counter affidavit while the applicants on being served with the counter affidavit filed a further 7 paragraph affidavit in support of their application. Thereafter, learned counsel on both sides filed written addresses containing their arguments in support of and in opposing the application. After considering the facts and the submissions of learned counsel, the learned trial Judge delivered his ruling on 23-1-2001 granting the application in the following terms:
“As I have said earlier, the applicants are entitled to have their period of detention calculated from the date of detention and not of conviction. There is no evidence of the dates before me. Because of this, I am handicapped in making specific orders relating to their release or commutation. However, the respondents are hereby ordered to make their computation to be in accordance with my finding in this ruling and take action accordingly with respect to each of the applicants. For the avoidance of doubt and for the purpose of emphasis, each of the 70 applicants (sic) are to have been in prison custody from the date they were first detained there and they shall be dealt with accordingly”.

The respondents to the application who are now the appellants in this appeal, were not happy with this ruling of the court below and have therefore decided to appeal against it. The two original grounds of appeal without their particulars as contained in the notice of appeal dated 23-2-2001 are:-

1. The learned trial Judge erred in law when he interpreted the presidential instrument of pardon which states inter alia that, ‘Deathrow inmates who served 20 years and above in prison custody to be released unconditionally from prison, custody’ to mean that prisoners on Deathrow who have spent 20 years inclusive of awaiting trial period and above in prison custody should be released immediately.

2. The learned trial Judge erred in law when he ordered the respondents and not the applicants to make their computation to start from the date of detention and not of conviction”.

On the application of the appellants before this court dated 23-8-2002, this court granted leave to the appellants to file and argue one additional ground of appeal which reads:-
“The learned trial Judge of the Federal High Court erred in law in assuming jurisdiction to entertain the application before him for an order of mandamus without proof of breach of legal right that can only be remedied by order of mandamus.

Particulars of Error
a. Most of the applicants were convicted for offences created by section 319 of the State Criminal Code and may only be granted pardon by the Governor of State under section 212 of the 1999 Constitution, while Mr. President may only grant pardon for offences created by an Act of the National Assembly under section 175 of the 1999 Constitution.
b.    It is settled law that on the application for a writ of mandamus the court must be satisfied first that the respondent has a duty of a public nature to perform.
c.    An order of mandamus is not an appropriate and adequate remedy in the instant case as the respondent has the other lawful and effective remedy under Order 2 rule 2 of the Federal High Court (Civil Procedure) Rules, 2000.

Thus, based on the 3 grounds of appeal filed by the appellants, the appellants’ brief of argument and the respondents’ brief of argument were duly filed and served in compliance with the rules of this court.

In the appellants brief of argument, the following 4 issues were distilled for the determination of the appeal.
“1. Whether an application for an order of mandamus can lie where there is no legal right.
2. Whether the 20 years and above should be calculated from the date of 1st detention in custody or date of conviction.
3. Whether having rejected the calculation based on the date of conviction in the instrument of pardon, the court was competent to make the ruling of 23-1-2001 without any evidence supporting the ruling.
4. Whether the burden of proof of the date of 1st admission in prison custody lies with the appellants/respondents or the respondents.”

In the respondents’ brief of argument however 2 issues for the determination of the appeal were formulated from the grounds of appeal filed by the appellants. The 2 issues are:-
“1. Whether the term in ‘prison custody’ should take effect from the date of 1st admission or date of conviction in determining whether the respondents are entitled to the presidential amnesty.
2. Whether there exist distinction between Federal prisoners and State prisoners having regard to the Constitution of the Federal Republic of Nigeria which confines prison to the Exclusive List of the Federal Government.”

The brief facts of this case are that on 4-1-2000 the President of the Federal Republic of Nigeria, His Excellency, Chief Olusegun Obasanjo in exercise of his powers under section 175 of the 1999 Constitution was said to have granted presidential amnesty or pardon of unconditional release to all prisoners who have spent 20 years and above on death roll, while the death sentence of condemned convicts who have spent a minimum of 10 years but not up to 20 years in prison custody was commuted to life imprisonment.

The said instrument of pardon which the respondents exhibited to their affidavit in support of their application as exhibit O.K.2 is in the form of a written telephone message dated 3-4-2000 from the Comptroller General of Prisons, Abuja to the Comptroller of Prisons, Enugu containing the said terms and beneficiaries of the presidential amnesty or order for implementation. The 2nd appellant in his capacity as the Comptroller of Prisons, Enugu, implemented the terms of the said pardon as directed in the message.

However, the respondents who claimed to be beneficiaries of the said presidential amnesty or pardon of 4-1-2000 but who were yet to reap its benefits, went to the Federal High Court, Enugu and sought for an order of mandamus against the respondents praying the court to direct the calculation of “CC on death roll who have spent 20 years and above in prison custody” to start from date of 1st detention in prison custody. In spite of the apparent difficulties faced by the learned trial Judge in finding evidence to support his orders, all the same he proceeded and granted the respondents’ relief.

Before proceeding to consider the issues for determination in this appeal, I deem it necessary to observe that the second issue formulated in the respondents’ brief of argument does not arise from any of the 3 grounds of appeal filed by the appellants. That issue is accordingly hereby struck out. See Ogunbiyi v. Ishola (1996) 6 NWLR (Pt.452) 12 at 20. Furthermore, it is observed that from the 3 grounds of appeal filed by the appellants, 4 issues for determination were formulated thereby resulting in proliferation of issues which ought to be discouraged if the purpose of issues for determination in our rules, namely, to enable parties narrow issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity, is to be given full effect. See Ogbuanyinya v. Okudo (No.2) (1990) 4 NWLR (Pt.146) 551 and Nwobosi v. A.C.B. Ltd. (1995) 6 NWLR (Pt.404) 658 at 672.

Having regard to the facts and circumstances of this case, I am of the view that the only issue arising for determination in this appeal is whether having regard to the evidence averred by the respondents in their affidavits in support of their application, the ruling of the court below can stand.

The appellants have pointed out in their brief of argument that the respondents’ application was for an order of mandamus and that for that action to lie, the applicants must convince the trial court that they have been unlawfully deprived of their legal rights by the respondents who have a public duty to perform. That having regard to the additional record upon which this appeal was argued, it is very clear that most of the applicants in the court below were convicted for murder under section 319 of the State Criminal Code and as such the said presidential amnesty or pardon does not affect such applicants by virtue of section 175 of the Constitution of the Federal Republic of Nigeria, 1999 which limited the beneficiaries of such pardon to persons convicted of offences created by an Act of the National Assembly.

That the duty to grant such convicts pardon lies with the State Governor under section 212 of the 1999 Constitution. As for the interpretation of the said instrument of pardon, it was argued for the appellants that the whole document should be taken into consideration rather than isolating the words in prison custody. That global look at the instrument of pardon, shows that from the categorisation, the calculation was from the date of conviction.

On the question of evidence in support of the ruling of the trial court directing the implementation of the pardon from the date of detention in prison custody and not from the date of conviction, learned counsel to the appellants observed that even the trial court had clearly stated that there was no such evidence. That in the absence of evidence to support the ruling, counsel argued that the ruling was void on the authority of Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203; (2001) 9 SCNJ 5.

That by virtue of section 135 of the Evidence Act, the respondents were bound to supply the court with the bare facts in support of their application including the dates of their first detention and having failed to do so, their application should have been dismissed.

For the respondents however, their learned counsel maintained that the lower court was right in construing the term in prison custody in the said instrument of pardon to be inclusive of the date of 1st admission as opposed to date of conviction. That, that is why the court below in its ruling also included all awaiting trials inmates in line with the interpretation of section 3(1) of the Prisons Act, Cap. 366 of the Laws of the Federation of Nigeria, 1990.

Learned counsel further argued that by virtue of Regulation 2 to section 15 of the Prisons Act, a person can be admitted into prison custody as a prisoner by the execution of a warrant of arrest or warrant order of detention and as such the applicants are entitled to benefit from the president amnesty/order from their respective dates of detention in prison custody and not from the dates of their conviction.

It is quite clear from the record of this appeal that the proceedings for the order of mandamus that took place before the court below, the Federal High Court, Enugu, were predicated on the presidential order of amnesty to all prisoners on death row who the respondents in this appeal are claiming to be among. It is the terms of this presidential order which was said to have been issued on 4-1-2000, that came up for interpretation before the court below in order to determine the mode of computation of the period spent in prison custody in determining the beneficiaries of the order.

This presidential order had been described by the learned trial Judge in his ruling at page 43 of the record as an ‘Instrument’ or ‘legislation’ affecting citizens liberty where he said:-
“This is because the said presidential order specifically states that the time of computation is from the time the prisoner came to be in prison custody. That has to be given the meaning ascribed to it in the Prisons Act and its regulation already referred to. It must be remembered that we are dealing with the liberty of citizens. In my view, any legislation or instrument dealing with a citizen has to be interpreted in such a way that is more positive to the citizens liberty. It is trite that any legislation or instrument that intends to curtail a citizens liberty must be clearly seen to be so. It must not admit of any ambiguity. I therefore hold that as regards the presidential amnesty granted to the applicants as evidenced by exhibit O.K.2, the effective date is the date of detention in prison custody and not the date of conviction and sentence. However, in this case the applicants have failed to show in their affidavit and further affidavit the actual date of detention. The only dates disclosed in this case are those exhibited by the respondents, that is exhibits A to H attached to their counter affidavit.”

Exhibit O.K.2 described as the presidential order speaks for itself at page 13 of the record of this appeal. It reads:-

“Confidential
Telephone Message
From CGP Abuja
To C/P Enugu
Date 3rd April, 2000
Presidential Order on Condemned
Convicts on Death Roll

I am directed to instruct you to release/commute the sentence of condemned convicts on the death row in your State command under the following categories as ordered by the President Chief O. Obasanjo President of the Federal Republic of Nigeria.
Category ‘A’
CC on death roll who have spent 20 years and above in prison custody.
Category ‘B’

Commuted to life imprisonment the death sentence of convicts who have spent a minimum of 10 years but not up to 20 years in prison custody.

The release/commutation of sentence is with immediate effect.

The list of convicts concerned is attached for ease of reference.

SOD.
(O.U.Kalau) (DCG OPS)
for Comptroller General of Prisons

No category ‘A’ in Enugu State Command under category ‘B’
1. James Chiokwe     …    15 years
2. Edugwu Idenyi      …    15
3. Anthony Ejinna      …    15

4. EmmanuelOkoro      …    15
5. Basil Ediegbunam      …    15
6. Mgboyibo Osai (F)      ….    11
7. Mary Chukwu (F)     …    11

RK put the name of any person who is qualified by this month and send the list before Friday”.
Therefore, the above document which is clearly a confidential telephone message from the office of the Comptroller-General of Prisons, Abuja to the Comptroller of Prisons of Enugu State, Enugu, is not a presidential order, a piece of legislation or legal instrument conveying the decision of the President of the Federal Republic of Nigeria to exercise his power under section 175 of the 1999 Constitution to grant amnesty to the category of prisoners on death roll in prison custody.

While the contents of this telephone message might have been lifted directly from such presidential order or instrument in possession of the officer who signed the message, the message itself in its present form as placed before the trial court cannot qualify as such presidential order or instrument justifying its being relied upon in support of the respondents’ application for the order sought.

In other words, the truth of the matter is that there was no presidential order or instrument before the lower court calling for any interpretation of the terms of such order or instrument by the court.

The learned trial Judge should have realised this vacuum when he found himself in trouble in his ruling as to what order to make in the absence of evidence on the dates of detention in prison custody of the product of the exercise of constitutional power of the President of the Federal Republic of Nigeria, the court below ought to have satisfied itself that the power had been properly exercised before embarking on finding of who were entitled to benefit from the terms of the order.

The absence of the presidential order before the trial court is indeed fatal to the case of the respondents who in any case had failed to prove their claim on the evidence of the affidavits deposed on their behalf. Therefore, the learned trial Judge having clearly found that there was no evidence to support the appropriate order being sought by the application, the learned trial Judge should have there and then dismissed the application.

To proceed to grant the application as he did in the absence of any evidence to support it constitutes a serious misdirection in law justifying the setting aside of the ruling. See Shodeinde v. Registered Trustees, Ahmadiyya Movement-in-Islam (1983) 2 SCNLR 284 and Menakaya v. Menakaya (2001) 16 NWLR 9 (Pt.738) 203 at 237-239.

In any case as the counter-affidavit of the appellant before the court below at pages 19-21 of the record of this appeal had clearly shown that the said amnesty had already been implemented by the appellants in relation to 54 out of the 70 applicants now respondents, there was no basis whatsoever for the order of the lower court on the appellants to implement the amnesty in accordance with the interpretation of the court on all the 70 applicants now respondents.

Although the appellants have also raised a serious question of law as to whether the presidential order should apply to prisoners convicted for the offence of murder under section 319 of the Criminal Code of Enugu State, which is a State law and not an Act of the National Assembly as stipulated under section 175 of the 1999 Constitution, in the absence of the presidential order, it would amount to pure speculation to embark on the exercise. To do so will definitely result into this court falling into the same trap as did the trial court in interpreting the terms of the order that was not placed before it.

In the result, this appeal succeeds and the same is hereby allowed.

The ruling of the trial court of 23-1-2001 containing order on the appellants to comply with the order of the trial court is hereby set aside. In place of that order there shall be an order dismissing the applicants’ application. No order on costs.

---

Other Citations: (2003)LCN/1439(CA)

Olatunbosun Odejide V. Madam Olaide Fagbo (2003)

LawGlobal-Hub Lead Judgment Report

MURITALA AREMU OKUNOLA, J.C.A.

This is an appeal by the defendant/appellant against the judgment of Oye Iyanda, J., sitting at the High Court of Osun State, Ile-Ife in suit No. HIF/171/92 which was delivered on the 4th of December, 1996. The facts of this case briefly put were as follows:

The plaintiff/respondent’s claim against the defendant/appellant was for N122,940.00 special damages for alleged conversion of her building materials to wit: sands, gravels and blocks (see pages 11-12 of the record of proceedings hereinafter referred to as the record).

The plaintiff claimed that the said building materials were deposited on her land between 1981-1984. She claimed further that the land measuring 120 ft x 100 ft was bought in 1976 from her vendor, one Kamoru Ayoade. She claimed further that she lost her title to this land via the Ile-Ife High Court judgment, (exhibit D2), in 1986 in which her vendor, Kamoru Ayoade was the defendant and one Oba Famodun, the Owa of Igbajo was the plaintiff in which judgment her vendor lost his title to the land. The defendant/appellant, in 1988, bought six plots of land from Oba Famodun, the Owa of 1gbajo.

The latter gave him exhibit D2, a copy of the Ile-Ife High Court judgment in his favour as evidence of ownership and exhibit D1, as purchase receipt (see pages 24-25 and 43-63 of the record). The defendant/appellant denied ever converting the plaintiff/respondent’s building materials and that he bought all the materials he used to erect his fence on the land. Issues were thus joined by the parties. Plaintiff/respondent called 3 witnesses and gave evidence (see pages 30, 31, 32, 33, 35 and 36 of the record). The defendant did not call any witness but gave evidence for himself (see pages 36-38 of the record). Judgment was entered for the plaintiff/respondent in the sum of N59,000 being the current market value of her blocks and N1,000 cost was awarded in her favour.

Dissatisfied with this judgment, the defendant/appellant filed two different notices of appeal dated 12/12/96 and 6/1/97 respectively (vide pages 64 and 66-68 of the records) to this Honourable Court.
From pages 66-68 of the records, the defendant/appellant (hereinafter referred to as the appellant) filed 3 grounds of appeal.

From the grounds of appeal the appellant herein formulated the following five issues for determination in this appeal, viz:
“1. Whether the award of N59,000 special damages against the defendant for conversion is supported by evidence on the record.
2. Whether there are material contradictions in evidence adduced by the plaintiff and her witnesses, and if yes, whether they rendered the evidence unreliable.
3. Whether the learned trial Judge wrongfully received in evidence, exhibits P2, P3, P4 and P5 which are purchase receipts of some blocks when the same were not specifically pleaded.
4. Whether the learned trial Judge wrongfully rejected purchase receipt of certain building materials dated 4/8/99, 28/8/88 and 30/8/88 as exhibits, and if yes, whether the refusal materially influenced the judgment against the plaintiff.
5. Whether the plaintiff/respondent has discharged the burden of proof from the totality of the evidence adduced by her and her witnesses.”

The respondent’s counsel also formulated three issues from the grounds of appeal which but for framing and the language used boil down to the five issues raised by the appellant in the appellant’s brief.

These are:
“1. Whether it was a fact that the plaintiff/respondent deposited some building materials on the site as found by the learned trial Judge.
2. Whether the trial Judge properly evaluated the evidence in support of the plaintiff/respondent’s claim.
3. Whether the exhibits tendered by either side were properly received in law and or properly rejected in law.”

For purposes of this judgment, I shall use the appellant’s five issues which have incorporated the three issues in the plaintiff/respondent’s (hereinafter referred to as the respondent) brief. Be that as it may, both learned counsel to the parties have filed their briefs of argument on behalf of their respective clients. On 14/4/03, when this appeal came before us for hearing, learned counsel to the appellant, Mr. A. L. Akintola informed the court that the case was slated for that day and the respondent’s counsel, who had filed herein the respondent’s brief, had been duly served with the hearing notice for that date, is absent. He urged the court to invoke the provision of Order 6 rule 9(5) of the Court of Appeal Rules to hear the appeal.

Learned counsel thereafter adopted and relied on the appellant’s brief filed herein on 23/12/97. He urged the court to allow the appeal and set aside the judgment of the lower court. After his submission, the court observed that the respondent’s counsel was personally served on 4/3/03 with the hearing notice to appear in court on that day (i.e. 14/4/03) and he was absent. Having filed the respondent’s brief, the court invoked the provision of Order 6 rule 9(5) of the Court of Appeal Rules to hold that the said respondent’s brief filed herein on 10/3/98 be deemed as having been adopted and the appeal deemed as having been duly argued.

I have considered the submissions of both learned counsel to the parties in this appeal as contained in their respective briefs of argument vis-a-vis the records and the prevailing law. I shall now give my views on them. In this regard, I shall take issues 1 & 3 together to be followed by issues 2 & 5 and conclude with issue 4 as contained in the appellant’s brief. On issues 1 & 3, which centre on whether the award of N59,000 special damages against the defendant for conversion is supported by evidence on the record and whether the trial Judge wrongfully received in evidence exhibits P2, P3, P4 & P5 which were purchase receipts of some blocks, when the same were not specifically pleaded, both learned counsel to the parties addressed us copiously in their respective briefs. Learned counsel to the appellant on issues 1 & 3 submitted by way of summary on paragraph 5.0 on page 12 of the appellant’s brief and urged the court to hold that the award of N59,000.00 could not be supported by evidence. The available evidence exhibits P2, P3, P4 & P5 are not direct and not specifically pleaded.

Learned counsel urged the court to expunge them from the records as they had failed to prove the actual number of blocks that were allegedly converted by the appellant. Learned counsel urged the court to set aside the award of N59,000.00 special damages and N1,000.00 cost awarded against the appellant.

By way of reply, learned counsel to the respondent by way of summary on page 7 of the respondent’s brief on the admissibility of exhibits P2, P3, P4 & P5 submitted that the learned trial Judge was right when he stated at page 59 of the record that:
“But what I accept as proof of the number of blocks on the land is the total number of blocks written in the four receipts of purchase of blocks exhibits P2-P5 tendered by the plaintiff in her evidence on oath before this court at page 60, lines 4-5 of the record of the proceedings in this appeal, the trial Judge stated that but I must stress that although the plaintiff claim for blocks, sands and gravel, she tendered receipts for blocks only and this is what I can act upon.”

The pertinent question to consider here is whether the learned trial court was right to have received in evidence and acted upon exhibits P2-P5 as he has indicated in his judgment supra. From the state of pleadings reviewed supra, the plaintiff/respondent had not specifically pleaded exhibits P2-P5.

The poser here is ‘whether the award of N59,000.00 special damages could stand in the absence of any evidence save exhibits P2-P5 supra which was not specifically pleaded.

This poser had come for consideration and determination by the apex court in this country to the effect that special damages must be specifically proved. Since parties are bound by their pleadings, evidence given on matters not pleaded goes to no issue. The law is that, a plaintiff must call evidence to support his pleadings, and evidence which is in fact adduced to be contrary to his pleadings should never be admitted. See National Investment & Properties Co. Ltd. v. Thompson Organisations Ltd. (1969) 1 NMLR 99 p.104; See also Emegokwue v. Okadigbo (1973) 4 SC 113; Shell BP Ltd. v. Abedi & 4 Ors. (1974) 1 All NLR 1, 13 & 16; Enang v. Adu (1981) 11-12 SC 25; Ibanga v. Usanga (1982) 5 SC 103; Amobi v. Amobi (1996) 8 NWLR (Pt. 469) 638, (1996) 9-10 SCNJ 207, 224-225.

From the foregoing authorities, I hold that since exhibits P2, P3, P4 & P5 were not pleaded they should be expunged from the records and I so hold. Apart from the fact that they were not pleaded, there was no evidence on the record to show that they represent the value of the blocks at the time of conversion and yet the learned trial Judge held:
“But I must stress that although the plaintiff claim for blocks sands and gravel, she tendered receipts for blocks only (i.e. exhs. P2-P5) and this is what I can act upon.” (Italics mine for emphasis)

The above listed authorities show that the learned trial Judge was in error to have acted upon exhs. P2-P5 for the award of N59,000.00 special damages. What is more P2-P5 did not sufficiently prove the number of the alleged converted blocks. For instance, the number of 9 inch blocks deposited on the land was 7,500 (see pages 11-12 of the record). But exhibits P2-P3 only showed 3,500 9 inch blocks. Exhibit P4 shows 2,000 4 inch blocks, whereas it was 4,000 that were pleaded. Similarly, exhibit P5 shows 3,000 6 inch blocks while 6,000 were pleaded.

Furthermore, there was no evidence on the record either from the plaintiff or any of her three witnesses as to the whereabouts of the purchase receipts for the remaining blocks which were not covered by exhibits P2-P5. It is also interesting to note that the award of N59 ,000.00 special damages was not claimed by the plaintiff/respondent. What the plaintiff claimed via her pleading and evidence as per the blocks was the current market value of N121,200.00. The respondent however could not prove this.

The learned trial Judge at that stage ought to have dismissed her claim instead of awarding N59,000.00. I submit it is trite that a trial court cannot grant to a plaintiff a remedy which has not been claimed by the plaintiff because it has no power to do so. See Olurotimi v. Ige 1993) 8 NWLR (Pt. 311) 257, (1993) 1 SCNJ 1 at 13 from paragraphs 24-27. See also Ekpeyong & 4 Ors. v. Nyong & 4 Ors, (1975) 2 SC 71 at 81-82; Kalio & Ors. v. Daniel-Kalio (1975) 2 SC 15 at pages 17-19; Nigerian Housing Development Society Ltd. & Anor. v. Mumuni (1977) 2 SC 57 at page 81; University of Lagos & 2 Ors. v. Dada (1971) U.I.L.R. (Pt. 3) 344.

In the light of the foregoing authorities, I resolve issues 1 & 3 in favour of the appellant.

On issues two and five which relate to whether there are material contradictions in the evidence of the plaintiff/respondent and whether the plaintiff/respondent has discharged the onus of proof on her by the evidence adduced, both learned counsel to the parties made copious submissions in their respective briefs. Learned counsel to the appellant by way of summary on pages 13-15 of the appellant’s brief submitted that there are contradictions in the evidence adduced by the plaintiff and her witnesses which contradictions are material and go to the weight to be attached to them.

According to counsel, the respondent’s case is predicated on the conversion of certain building materials. It is therefore a claim for special damages for certain particular and identifiable items. These items are listed on pages 11-12 of the record.

Learned counsel observed that in the evidence of PW1 at (pages 30-31) of the record, he said as to the number of the blocks:
“I think the blocks were about 2,000 in number” (paragraphs 9-10). While the plaintiff herself gave evidence (at page 32 paragraphs 1-5 of the record) as to the number of the blocks as 17,400.

Furthermore, PW4 states (at page 35, paragraphs 11-13) of the record as follows:
“I noticed some cement blocks were packed on the land. The blocks must be between three thousand and five thousand…”

Learned counsel therefore submitted that the learned trial Judge faced with these contradictions ought not to have relied on either of them but to hold that the plaintiff/respondent had failed to prove her case.

On the admission by the defendant/appellant that he met some blocks on the disputed land, learned counsel to the appellant submitted that after saying that he met some blocks on the land, appellant said further that they were not the plaintiff’s. Learned counsel submitted that that is no admission of the plaintiff/respondent’s specific claim of 17,400 blocks of various specifications.

Learned counsel referred to S. 20 of the Evidence Act which stipulates that for oral evidence to qualify as an admission, same must be clear and unambiguous. Learned counsel submitted that since the appellant admitted that he met some blocks on the land but did not say the actual number, not that they belonged to the respondent, when in fact he denied that he ever used the respondent’s blocks.

Learned counsel submitted that such admission is of no evidential value and would not relieve the respondent of her responsibility to prove her case being a mere acknowledgment. In the circumstance, learned counsel submitted that the evidence relied upon by the plaintiff is mainly contradictory and hence, she has failed to discharge the burden of proof imposed on her by S. 137 of the Evidence Act.

By way of reply, learned counsel to the respondent by way of summary on page 5 of the respondent’s brief observed that the defendant/appellant in paragraph 5 of his statement of defence avers that he did not use the materials of the plaintiff deposited on the land and gave evidence towards this line.

Learned counsel submitted that from the printed records, the appellant admits that the respondent deposited materials on the land but did not use them. Learned counsel further submitted that the learned trial Judge was right when at page 46 line 24-25 he said ‘the parties joined issues only on the building materials which the plaintiff deposited on the land before the case started between 1981-1984’. He also submitted that at page 58, line 26-30, the findings of the learned trial Judge confirmed that the building materials were on the land. The Judge held ‘suffice it to say that I believe the evidence of the plaintiff and her witnesses Nos. 1 and 4 that blocks were on the land which the defendant built upon’ (see also page 59 lines 15-20).

Learned counsel submitted that this fact is supported by evidence and should not be disturbed. See Ariche v. The State (1993) 6 NWLR (Pt. 302) 752, (1993) 7 SCNJ 457 at 467. The Supreme Court per Belgore, J.S.C. stated that ‘unless a finding of fact is not supported by evidence or is perverse or based on evidence not legally admissible, the finding will not be disturbed by the appellate court’. See also Fashanu v. Adekoya (1974) 6 SC 83, 91; Yassin v. Barclays Bank D.C.O. Ltd. (1968) 1 All NLR 171. In the light of the court’s finding from pages 59 – 60 of the judgment in the proceedings, I urge the court not to disturb the findings thereon.

I have considered the submissions of both learned counsel to the parties on these issues two and five vis-a-vis the records and the prevailing law. From the submission of learned counsel to the appellant, the material contradictions alleged by the appellant in the evidence given by the plaintiff/respondent in the court below relates to the estimate given by the witnesses of the number of blocks on the land now in possession of the appellant. The judgment of the lower court is not predicated on the estimates given in evidence by the plaintiff’s witnesses, rather the lower court recognized that none of the witnesses placed the blocks on the land, consequently, the evidence was treated at best as an opinion. The court below showed that he relied on the number of blocks stated in exhibits P2-P5 tendered before the court. The alleged contradiction on the number of blocks on the land given by the witnesses does not go to the root of the main issue to be considered, which the court below considered, which is, were there blocks on the land which were subsequently possessed by the defendant? And did the said blocks belong to the plaintiff? From the evidence on the printed records, the answer in both questions is in the positive.

The prevailing law is that for a contradiction to be material and upturn a judgment, it must be such and that it can be said could lead to a wrong or perverse conclusion to warrant the interference of an appellate court. See Arase v. Arase (1981) 5 SC at page 33. The record shows that despite the initial denial of the defendant/appellant, the plaintiff successfully proved and established her ownership of identifiable chattels of blocks, sand and gravel which she deposited on the parcel of land on which she intended to build a house when she lost the land to the vendor of the defendant.

The respondent after admitting her loss, sought to remove her chattel which she alleged that the appellant had used and denied its use. The court below after reviewing the evidence has ruled that he believed that the plaintiffs chattel were on the land of the defendant at the time that the defendant took possession of the said land and that the said defendant/appellant used the said chattels to make a fence and refused to admit to return same or pay for the market value. It is trite that an appellate court does not intervene to reverse the findings of fact of the court below, even if the court would have held a different view. See Wahabi Aigbosho Olanrewaju v. Governor of Oyo State (1992) 11-12 SCNJ at pp. 105-6, (1992) 9 NWLR (Pt. 265) 335.

I agree with the above judgment of the Supreme Court. In the circumstance, I resolve issues 2 and 5 against the appellant and I hold that the plaintiff in the court below proved his claim against the defendant/appellant on a balance of probabilities.

On issue 4 which relates to whether the learned trial Judge wrongfully rejected purchase receipts dated 4/8/88, 28/8/88 and 30/8/88, both learned counsel to the parties have addressed us copiously in their respective briefs of argument. I have considered the submissions vis-a-vis  the records and the prevailing law. Learned counsel to the appellant submitted at pages 16-18 of the appellant’s brief by way of summary that though the purchase receipts dated 4/8/88, 28/8/88 and 30/8/88 are not issued in the name of the appellant, they are issued in the name of his hospital. Since he stated that he was a private medical practitioner, he must have a clinic or hospital from where he operates, hence, counsel contended, the court ought to take judicial notice that the receipts were issued in the name of his hospital.

Learned counsel further referred to page 37 paragraphs 6-7 of the record where the appellant said:
“I paid for the materials I used to fence the land. I now tender the three receipts.”

To buttress the fact that proper foundation had been for the tendering of the purchase receipts. On the whole learned counsel submitted that since the receipts are relevant and admissible, they should be admitted in evidence notwithstanding that they are not from proper custody.

By way of reply, learned counsel to the respondent by way of summary justified the rejection of the purchase receipts of the lower court on the ground that a party who said he made payment and tendered receipts which showed the name of another has not shown relevance of his name to the receipt. I have considered the submissions of both learned counsel to the parties on this issue. I seem to agree with the learned counsel to the respondent that since the purchase receipts showed the name of another person, he has not shown relevance of his name to the receipts. What is more, the receipts are not self-explanatory and since no foundation has been laid for their admissibility, I hold that the court was in order when it rejected the receipts. It is clear from the record that the statement made subsequently by the defendant that a medical doctor must have a hospital where he works is an averment made after the court had ruled that he failed to see the relevance of the receipts to the witness.

As reiterated supra, the court rightly rejected those exhibits. In the circumstance, I resolve issue No.4 against the appellant and in favour of the respondent.

Before concluding this judgment, I need to point out that although the issues formulated by the appellant are contrary to the authorities more than the grounds, but since the issues were consolidated into three, they were in fact taken as three issues and deemed as such. Be that as it may, the appeal is dismissed on the last issue – issue 4. The appeal however succeeds on issues 1 & 3 and same is dismissed on issues 2, 4 & 5.

In sum, the appeal is allowed in part with substantial part of the judgment of the lower court affirmed. Costs of N5,000.00 is awarded in favour of the appellant.

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Other Citations: (2003)LCN/1438(CA)

Chief F. A. Matanmi & Ors. V. The Governor of Ogun State & Ors. (2003)

LawGlobal-Hub Lead Judgment Report

MURITALA AREMU OKUNOLA, J.C.A.

This is an appeal against the ruling of B. O. Ogunade J. sitting at High Court No. 1, Otta, Ogun State delivered on the 27th day of January, 2001.

The facts of this case briefly put were as follows:

The appellants herein were the plaintiffs in the court below, said the defendants (Respondents herein) claiming the following reliefs:
1. Declaration that by tradition the people of the villages and areas in Ilogbo ward of Otta District and Ojodu Abiodun Administrative Area namely: (4) Olowo (5) Oke Oji (6) Agasa Adewale (7) Idiroko (8) Ogunwade (9) Ilugboro (10) Fagbayi (11) Ajegunle (12) Igbusi (13) Abule Oke and the people of the villages and areas around Ijoko/Otta in Otta ward II of Otta namely: (1) Agoro (2) Ijokolemode (3) Itoki (4) Oko (5) Rabiyan-Igboju (6) Mosafejo (7) Ikeja (8) Ajageoju (9) Ntabo (10) Okanran (11) Ijegemo belong to Ado-Odo/Otta Local Government.

2. Declaration that the area of the land situate lying and being at the villages mentioned in claim 1 (one) above and delineated in a plan to be filed later, form part and are components of Ado-Odo/Otta Local Government.

3. Declaration that the 5th defendant is not a competent and proper person to participate or Chairman the 6th Respondent set up by the 2nd and 3rd Respondents to adjudicate on the boundary dispute between the plaintiff and the 4th respondent

4. An order directing the 4th defendant to pay over to the Ado-Odo/Otta Local Government all monies collected by way of levies and taxes from the affected areas to the Ado-Odo/Otta Local Government.

5. Injunction restraining the 5th and 6th defendants by themselves, their agents, servants, their privies or otherwise howsoever from adjudicating on the said boundary dispute between Ado-Odo/Otta Local Government and Ifo Local Government.

6. Injunction restraining the 4th defendant by itself, its agents, its servants, or its privies or otherwise howsoever from administering the affected areas stated in reliefs 1 and 2 above.

7. Injunction restraining all the defendants from treating and or administering the affected areas stated in Relief 1 (one) above as part of Ifo Local Government.

The gravamen of the Appellants’ objection as argued in the lower court was that the court, subject to Ogun State Boundary Commission Edict No.5 1991 which set up the Ogun State Boundary Commission, whose action the appellants complained about has jurisdiction to hear and determine the matter. The appellants files their writ of summons and statement of claim which was amended on the 10th of May 1999 and upon service of same on the Respondents, they filed their statement of defence.

After filing and arguing some applications, the respondents filed a motion on Notice dated 13th day of October 1999 contending that by virtue of Local Government and Community Boundary Settlement law Cap. 64, 1978 Law or Ogun State, the court below lacks jurisdiction to entertain this matter. The argument proffered on behalf of the appellants as can be found on pages 68 to 69 of the records was that the Ogun State Boundary Commission whose action the appellants are challenging in the court below was created by virtue of Ogun State Boundary Commission Edict NO.5 of 1991, while the Local Government in question was contained in Cap. 64, Law of the Federation 1990, Furthermore, that the Edict No. 5 by section 1 (one) had superseded the Local Government and Community Boundaries Settlement Law 1978. The learned trial judge delivered his ruling on the 27th day of August over-ruling the argument of the appellant and ruled that the Local Government and Community Boundaries Settlement law 1978 is applicable and therefore he had no jurisdiction.

Dissatisfied with this ruling, the appellants filed their Notice of Appeal dated 8th February 2001 containing two grounds of appeal.

From the two grounds of appeal the appellants formulated the issues that call for determination in this appeal thus:
“1. Whether the learned trial judge correctly interpreted S.1 of Ogun State Boundary Commission Edict No. 5 of 1991.
2. Whether the provision of S.1 Ogun State Boundary Commission Edict No, 5 1991 Cap. 64 of Laws of Ogun State shall still be operational.
3. Whether the learned trial Judge was right in applying Cap. 64, Laws of Ogun State 1975 in resolving the issue of jurisdiction in a matter that arose from the action of a body or commission created by Ogun State Boundary Commission Edict NO.5 of 1991 and
4. Whether the learned trial Judge was correct when he held that the plaintiff’s cause of action arose in 1989.

The Respondents from the grounds of appeal also filed two issues which but for framing and the language used boil down to the two merged issues formulated by the appellants. These are:
“(1) Whether the learned trial judge was right when he held that the plaintiffs’ cause of action arose in 1989.”
If the 1st issue is resolved in the affirmative, then:
(2) Whether the learned trial Judge correctly interpreted the provisions of the Local Government and Community Boundaries Settlement Law Cap. 64, Laws or Ogun State, 1978 in declining jurisdiction to entertain the plaintiffs’ suits.”

Both learned counsel to the parties filed their briefs of argument on behalf of their respective clients. On 28/4/03 when this appeal came up before us, learned counsel to the appellants, Mr. Uche Ameyo adopted and relied on the Appellants’ brief filed herein on 5/2/03 and the appellants’ reply brief filed herein on 15/4/03, By way of reply learned counsel to the Respondents, Chief O. Oyebolu, Attorney-General and Chief Justice Ogun State adopted and relief on the Respondents’ brief filed herein on 2/8/03. I have considered the submissions of both learned counsel to the parties vis-a-vis the records and the prevailing law.

In my view their arguments boil down to the two issues formulated supra by the Respondents which I recopy below:
“(1) Whether the learned trial judge was right when he held that the plaintiffs’ cause of action arose in 1989.
If the 1st issue is resolved in the affirmative, then:
(2) Whether the learned trial Judge correctly interpreted the provisions of the Local Government and Community Boundaries Settlement Law Cap. 64 Laws of Ogun State, 1978 in declining jurisdiction to entertain the plaintiffs’ suits.”

I shall now consider the arguments of both learned counsel to the parties on the two principal issues. On the two principal issues which border on whether the learned trial judge was right when he held that the plaintiffs cause of action arose in 1989 and whether or not the lower court had jurisdiction in the matter, both learned counsel to the parties addressed us copiously, orally and in their respective brief. Learned counsel to the appellants by way of summary on paragraph 6.01(1) of the appellants’ brief submitted on both issues that:
“(1) The learned trial judge misconstrued the case of the plaintiffs when he held that the plaintiffs’ case accrued in 1989 while the plaintiffs clearly in the claim are complaining about the act of the Ogun State Boundary Commission created by Edict No. 5 1991.
(2) The learned Trial judge also misconstrued and misinterpreted the provisions of section 1 of the Edict NO.5 of 1991 which states that notwithstanding the provisions of the Local Government and Community Boundary/Boundaries Settlement Law 1978, when he went ahead to apply the 1978 law in this matter that arose in 1991 and denied himself jurisdiction.
(3) The learned trial judge ought to have applied the law existing at the time the cause of action accrued in 1991 which then was the Ogun State Boundary Commission Edict No.5 of 1991 which created the 4th respondent in the case whose action gave rise to the appellants’ case.”

By way of conclusion learned counsel to the appellants urged this court to allow the appeal, set aside the ruling or the lower court and hold that the lower court has jurisdiction to hear and determine this matter.

By way of reply learned counsel on both issues to the 1st-4th Respondents submitted by way of summary on page 9 paragraph 6.1 of the Respondents’ brief that:
“(1) The right sought to be protected by the plaintiffs relate to the delineation of the boundary between Ado-Oda/Otta Local Government and the composition of each.
(2) Both the Appellants and the Respondents agreed in their pleadings that Ado-Odo/Otta Local Government was created in 1989.
(3) Since the right sought to be protected by the Appellant arose sequel to the creation of Ado-Odo/Otta Local Government in 1989, the plaintiffs/appellants cause of action arose in 1989.
(4) The law on Local Government Boundary Settlement at the time the Ado-Odo/Otta Local Government was created was the Local Government and Community Boundaries Settlement law Cap.64 Laws of Ogun State, 1978.
(5) The Ogun State Boundary commission Edict NO.5 of 1991 is inapplicable as it has its commencement date as 6/5/91.
(6) The Local Government and Community Boundaries Settlement Law Cap. 64 Law of Ogun State 1978 is an existing law in that it was not revoked by any subsequent laws enacted on Local Government Boundary Settlement.
(7) Since the Plaintiffs/Appellants agreed that Ado-Odo/Otta Local Government was created in 1989, then the right sought to be protected accrued and crystallized in 1989 as Ogun State Boundary Commission Edict No.5 of 1991 which commencement date was 6/5/91 was later in time.
(8) The provisions of Local Government and Community Boundaries Settlement Law Cap. 64, Laws of Ogun State 1978 oust the jurisdiction of the trial court.”

Learned counsel to the 1st-4th Respondents urged this Honourable Court to hold that this appeal lacks merit and that same be dismissed with substantial costs.

I have considered the submissions of both learned counsel to the parties vis-a-vis the records and the prevailing law. The arguments of both learned counsel to the party boil down to when the cause of action really accrued. Learned Counsel to the Respondents said it accrued at the creation of Ado-Odo/Otta Local Government while learned counsel to the appellants said it accrued in 1991. I have considered the evidence of witnesses and the addresses by learned counsel all the printed records and the respective briefs of the parties.

In my view the creation of Ado-Odo/Otta Local Government did not give any cause of action to the appellants to complain hence the cause of action did not arise in 1989. The cause of action however arose in 1991 when the Government ‘team’ came to draw a boundary different from the pronouncement of the Ogun State Government in 1989. This gave the appellants cause to complain and go to court. In this regard the cause of action accrued in 1991.

Consequently I agree with the submissions of learned counsel to the appellants that the learned trial judge misconstrued and misinterpreted the provision of section I of the Edict No.5 of 1991 which states that notwithstanding the provisions of the Local Government and Community Boundary/Boundaries Settlement law 1978 when he went ahead to apply the 1978 law in this matter that arose in 1991 and denied himself jurisdiction.

In my view and in line with the prevailing law the learned trial judge ought to have applied the law existing at the time when the cause of action accrued in 1991 which then was the Ogun State Boundary Commission Edict No. 5 of 1991 which created the 4th respondent in the case whose action gave rise to the appellants ease and not the law existing when the jurisdiction of court was invoked. See JULIUS BERGER NIG. PLC V. R.I.O. OMOGUI (2001) 15 NWLR (Pt.736) 401, 2001 NSC QLR VOL. 6, PART 2 1062-1076; UDOH v. ABERE & ANOR (2001) 11NWLR (Pt. 723) 114, 2011 6 NSC QLR PART 1 579 P.614; ODUNTAN V. AKIBU (2000) 13 NWLR (Pt. 685) 446, (2000) 7 SC (PT. 11) 106; CHIEF MICHAEL OMODELE ALESE V. CHIEF JULIUS ALADETUYI (1995) 6 NWLR (Pt. 403) 527 7 SCNJ 40; GOVERNOR OF OYO STATE & OTHERS V. OBA OLOLADE FOLAYAN (1995) 8 NWLR (Pt. 413) 292 (1995) 9 SCNJ 50; JESSICA TRADING CO. LTD. V. BENDEL INSURANCE CO. LTD. (1996) 12 SCNJ 286; OBA OYEBADE LIPEDE & ORS V. CHIEF ADIO SONEKAN & ORS (1995) 1 NWLR (Pt. 374) 668 (1995) 1 SCNJ 184.

In the light of foregoing authorities, this appeal is meritorious and same is allowed. The ruling of the lower court made on 27/1/00 is hereby set aside as the lower court has jurisdiction to hear and determine the matter. There will be no order as to costs.

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Other Citations: (2003)LCN/1437(CA)