CLRN Direct

(2019) 9 CLRN SEPTEMBER 2019

Commercial
ISSN 0189-7535

Law Reports
Nigeria =N=2,500

CONTENTS COURT PAGES

ALH. ABUBAKAR ABDULKADIR V. ALH. TUKUR MOHAMMED Supreme Court 1 - 51
& 3 ORS.
MORTGAGE – Equity of Redemption – A mortgagor relying on the
equity to redeem must pay his debt in full before he can recover the
mortgaged property.

AIRTEL NETWORKS LTD. V. MUSICAL COPYRIGHT SOCIETY OF NIG. Court of Appeal 52 - 69

APPEAL – Notice – A respondent who intends to challenge the
grounds of appeal must do so by notice of motion and not by filing
a notice of preliminary objection.

BARNAX AIRLINES LTD. V. MOBIL OIL NIGERIA LTD. & ANOR. Court of Appeal 70 - 89
APPEAL – Ground of Appeal – In order to determine whether a
ground of appeal is purely law or mixed law and fact, the court
must scrutinize the ground of appeal and its particulars.

DOMAX ENGINEERING LTD. & ANOR. V. UNITY BANK PLC Court of Appeal 90 - 140
& ANOR.
COMMERCIAL LITIGATION – Counter Claim – is a response of a
defendant to a claim in which he incorporates in the same suit a
relief, claim or remedy against the claimant.

NICON TRUSTEES LTD. V. ALMA BEACH ESTATE LTD. Court of Appeal 141-157
WINDING UP – Locus Standi – A receiver only has locus to sue on
behalf of the company, persons whose actions or omissions may
affect the exercise of his powers but has no powers to sue the company
for which he was appointed a receiver.

GPAY INSTANT SOLUTIONS LTD. V. JULIE IDAHOSA & ANOR. N.I.C 158-168
JURISDICTION – Contract for Service – The National Industrial
Court does not have jurisdiction to hear and determine a claim
bordering on contract for service and consequently have no powers
to grant injunctions on such claim.
(2019) 9 CLRN

Commercial
Law Reports
Nigeria

Copyright (c) 2019 Commercial Law Reports Nigeria Limited

i
COMMERCIAL LAW REPORTS NIGERIA

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ISSN 0189-7535

Published by:
Commercial Law Reports Nigeria Limited.
E-mail: info@clrndirect.com
Website: www.clrndirect.com

Published September, 2019

ii
 CASES REPORTED

1. Alh. Abubakar Abdulkadir v. Alh. Tukur Mohammed & 3 Ors. (2019) 9 CLRN 1

2. Airtel Networks Ltd. v. Musical Copyright Society of Nig. (2019) 9 CLRN 52

3. Barnax Airlines Ltd. v. Mobil Oil Nigeria Ltd. & Anor. (2019) 9 CLRN 70

4. Domax Engineering Ltd. & Anor. v. Unity Bank Plc & Anor. (2019) 9 CLRN 90

5. NICON Trustees Ltd. v. Alma Beach Estate Ltd. (2019) 9 CLRN 141

6. GPAY Instant Solutions Ltd. v. Julie Idahosa & Anor. (2019) 9 CLRN 158

iii
 CONTENTS

1. TABLE OF CASES ....... .......... ...... ....... ...... ....... ....... ...... ....... ........ v - xxiv

2. DIGEST OF CASES REPORTED ...... ..... ...... ...... ...... ..... ..... ..... xxv - xxxi

3. REPORTED CASES .. .. .. .. .. ... 1 - 168

iv
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

A.C.B. Ltd & Ors v. lhekwoaba & Ors (2003) LPELR 203(SC), (2003) 16 NWLR
(Pt. 846) 249 - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED
& 3 ORS (2019) 9 CLRN 1

A.G. Akwa Ibom State v. Essein (2004) All FWLR (Pt. 233) 1730 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

A.G. Lagos State. v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

A.G. Rivers State v. Ude & Ors (2006) LPELR-626(SC), (2006) 17 NWLR (Pt.
1008) 436 - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3
ORS (2019) 9 CLRN 1

Abdulrahman v. Oduneye (2009) 17 NWLR (Pt. 1170) 220 - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Abubakar v. Bebeji Oil and Allied Products Ltd & Ors (2007) LPELR-55(SC) -
GPAY INSTANT SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN
158

Abuul v. Bensu (2003) 16 NWLR (Pt. 845) 59 - ALH. ABUBAKAR ABDULKADIR

v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Achiakpa v. Nduka (2001) 7 SCNJ 567 - BARNAX AIRLINES LTD. v. MOBIL OIL
NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Adebanjo v. Brown (1990) 2 NSCC 336 - DOMAX ENGINEERING LTD. & ANOR.
v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Adedeji v. National Bank of Nigeria (1989) 1 NWLR (Pt. 96) 212 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Adegbuyi v. APC & Ors (2014) LPELR – 24214 (SC); (2015) 2 NWLR (Pt. 1442) 1
- ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS
(2019) 9 CLRN 1

Adelekan v. Ecu-line NV (2006) 6 CLRN 54 - BARNAX AIRLINES LTD. v. MOBIL

OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Adeleke v. Asemota (1990) 3 NWLR (Pt.136) 94 - AIRTEL NETWORKS LTD. v.

MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Adeniran v. NEPA (2002) 14 NWLR (Pt. 786) 30 - AIRTEL NETWORKS LTD. v.

MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

v
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

Aderibigbe v. Abidoye (2009) MJSC (Pt.3) 77 - BARNAX AIRLINES LTD. v. MOBIL

OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Adesina v. Adeniran (2006) 18 NWLR (Pt. 1011) 359 - NICON TRUSTEES LTD. v.
ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Adesokan v. Adetunji (1991) 5 NWLR (Pt. 346) 540 - DOMAX ENGINEERING

LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Adetono v. Zenith Int’l Bank Plc (2011) 12 MJSC (Pt. 111) 75 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Adeyemi v. Opeyori (1976) 10 NSCC PASS 462 - GPAY INSTANT SOLUTIONS

LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Adigun v. Attorney General, Oyo State (1987) 1 NWLR (Pt. 678) 709 - AIRTEL
NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN
52

African Newspapers (Nig.) Ltd. v. FRN (1985) 2 NWLR (Pt. 6) 137 - GPAY INSTANT
SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Agbareh v. NIMRA (2008) 2 NWLR (Pt. 1071) 378 - NICON TRUSTEES LTD. v.
ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Agboola v. UBA Plc (2011) 11 NWLR (Pt. 1258) 375 - ALH. ABUBAKAR
ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Agwasim v. Ojichie (2004) 10 NWLR (Pt. 882) 613 - NICON TRUSTEES LTD. v.
ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Agwunedu v. Onwumere (1994) 1 NWLR (Pt. 321) 375 - DOMAX ENGINEERING

LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Akibu v. Opaleye & Anor (1974) 11 SC 189 - DOMAX ENGINEERING LTD. &
ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598 - DOMAX ENGINEERING LTD. &
ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Alhaji A.A. Sanyinna v. AIB & Anor (2001) 4 NWLR (Pt. 703) 355 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Alhaji Shuwa v. Chad Basin Development Authority (1991) 7 NWLR (Pt. 205) 550
CA - DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR.
(2019) 9 CLRN 90
vi
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

Allanah & Ors v. Kpolokwu & Ors (2016) LPELR- 40724(SC) - GPAY INSTANT
SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Alliance International Ltd v. Kolo International Enterprises Ltd (2010) LPELR-3749

(CA) 14 - DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR.
(2019) 9 CLRN 90

Amaefuna v. The State (1988) 2 NWLR (Pt.775) 156 - GPAY INSTANT

SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Andrew N. Okonkwo v. Co-operative & Commerce Bank Nig. Plc & Ors. (2003) 8
NWLR (Pt.822) 347 - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR
MOHAMMED & 3 ORS (2019) 9 CLRN 1

Anyah v. African Newspaper of Nig. Ltd (1992) NWLR (Pt. 247) 319; (1992) LPELR-
511 (SC) 20 - DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC &
ANOR. (2019) 9 CLRN 90

Anyanwu v. Ogunewe (2014) 8 NWLR (Pt. 1410) SC 437 - GPAY INSTANT

SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Arewa v. Olanrewaju (2007) LPELR - 8789 (CA) - NICON TRUSTEES LTD. v.

ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Arubo v. Aiyeleri (1993) 3 NWLR (Pt. 280) 126 - NICON TRUSTEES LTD. v.
ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Attah v. State (1993) 7 NWLR (Pt. 5) 257 - DOMAX ENGINEERING LTD. & ANOR.
v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Attorney General of Kaduna State & Ors v. Atta & Ors (1986) 4 NWLR (Pt. 38)
785 CA - DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR.
(2019) 9 CLRN 90

Attorney General, Rivers State v. Ude (2006) LPELR - 626 (SC) - AIRTEL NETWORKS
LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Attorney-General of Kwara State v. Olawale (1993) 3 NWLR (Pt. 281) 253 - GPAY
INSTANT SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Awojugbagbe Light Industries Ltd. v. Chinukwe & Anor. (1995) LPELR-650 (SC);
(1995) 4 NWLR (Pt. 390) 379 - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR
MOHAMMED & 3 ORS (2019) 9 CLRN 1

Awojugbage Light Ind. Ltd v. Chinukwe (2004) All FWLR (Pt. 229) 943 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

vii
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

Awoniyi & Ors v. The Registered Trustees of the Rosicrucian Order (2000) LPELR
- 655 (SC) - NICON TRUSTEES LTD. v. ALMA BEACH ESTATE LTD. (2019) 9
CLRN 141

Awoniyi v. The Registered Trustees of the Rosicrucian Order (AMORC) (2000) 4

SC (Pt. 1) 103 - AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY
OF NIG. (2019) 9 CLRN 52

Ayoola v. Baruwa & Ors (1999) 11 NWLR (Pt. 628) 595 - NICON TRUSTEES LTD.
v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Babatunde & Anor v. Bank of the North Ltd. & Ors. (2011) LPELR - 8249 (SC);
(2011) 18 NWLR (Pt.1279) 738 - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR
MOHAMMED & 3 ORS (2019) 9 CLRN 1

Babatunde Harding & Anor v. Administrator General and Public Trustee of Lagos
State & Anor (2016) LPELR - 40990 (CA) - NICON TRUSTEES LTD. v. ALMA
BEACH ESTATE LTD. (2019) 9 CLRN 141

Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 - AIRTEL NETWORKS
LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Bank of Baroda v. Iyalabani Ltd (1998) 2 NWLR (Pt. 539) 600 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Bank of Industry Limited v. Awojugbagbe Light Industries Limited (2018) LPELR

- 43812 (SC) - NICON TRUSTEES LTD. v. ALMA BEACH ESTATE LTD. (2019) 9
CLRN 141

Bank of the North Ltd v. Bello (2000) 7 NWLR (Pt. 664) 244 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Beloxxi & Company Limited & Anor v. South Trust Banks & Ors (2012) LPELR-
8021 (CA) 18 - DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC &
ANOR. (2019) 9 CLRN 90

Bexwell v. Christie (1776) 1. Compo 395; 98 ER 1150 - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Brawal Shipping (Nig.) Ltd. v. F.I. Onwadike Co. Ltd & Anor. (2000) LPELR - 802
(SC); (2000) 11 NWLR (Pt. 678) 387 - ALH. ABUBAKAR ABDULKADIR v. ALH.
TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Brawal Shipping Ltd v. F. I. Onwadike Co. Ltd (2000) 11 NWLR (Pt. 678) 387 -
AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019)
9 CLRN 52

viii
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

Bucknor-Mcleans v. Inlaks (1930) 8-11 SC 1 - DOMAX ENGINEERING LTD. &

ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 - ALH. ABUBAKAR ABDULKADIR
v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Cameroon Airlines v. Otutuizu (2011) 1 CLRN 1 - ALH. ABUBAKAR ABDULKADIR

v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Carew v. Oguntokun (2011) 5 NWLR (Pt. 1240) 405 - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

CBN v. Ahmed & Ors (2001) LPELR-837(SC) - GPAY INSTANT SOLUTIONS

LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

CBN v. Ahmed (2001) 5 SC (Pt. 11) 146 - GPAY INSTANT SOLUTIONS LTD. v.
JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Central Bank of Nigeria v. Saidu H. Ahmed & Ors (2001) 5 SC (Pt. 11) 146 -
NICON TRUSTEES LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Chief Charlie Amachree v. Chief (Prof) TJ Princewill & Ors (2007) LPELR-CA/PH/
182/2004; (2008) 12 NWLR (Pt. 1098) 345 - GPAY INSTANT SOLUTIONS LTD.
v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Chief Onwuka Kalu v. Chief Victor Odili & Ors (1992) 6 SCNJ 76 - BARNAX
AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

CITEC International Estate Ltd & Ors. v. Josiah O. Francis &.Ors. (2014) LPELR
– 22314 (SC) - AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY
OF NIG. (2019) 9 CLRN 52

Community Development Organization, Tudun-Maliki Quarters & Anor v. Ibrahim

Mohammed (2015) 9 NWLR (Pt. 1465) 585 @ 604; (2014) LPELR-23598 (CA) 20
- BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9
CLRN 70

Compagnie Generale De Geo Physique (Niglt) CGG Nig Ltd v. Moses Aminu (2016)
WRN 35 - NICON TRUSTEES LTD. v. ALMA BEACH ESTATE LTD. (2019) 9
CLRN 141

Coscharis Motors Limited v. Capital Oil & Gas Ltd (2016) Vol. 25 WRN 138 -
NICON TRUSTEES LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

CPC v. Ombugadu & Anor (2013) LPELR-21007 (SC) 63 - DOMAX ENGINEERING

LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90
ix
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

Cuckmere Brick Co. v. Mutual Finance (1971) 2 All ER - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Dada v. Dosunmu (2006) 12 MJSC (Pt. 115) 149 - DOMAX ENGINEERING LTD.
& ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Dagazzau v. Bokir Int’l Ltd (2011) 14 NWLR (Pt. 1267) 261 - NICON TRUSTEES
LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Dakolo v. Rewane-Dakolo (2011) 16 NWLR (Pt. 1271) 22 - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Dalfam (Nig.) Ltd v. Okaku International Ltd (2001) 12 NWLR (Pt.735) 203 -
BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN
70

Davies v. NDIC & Ors (2014) LPELR-23763 (CA) 33 - DOMAX ENGINEERING

LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Din v. Attorney General of the Federation (1986) 1 NWLR (Pt. 17) 417 - NICON
TRUSTEES LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Dingyadi v. Independent National Electoral Commission & Ors (No.2) (2010) 18

NWLR (Pt. 852) 346; (2003) 12 SCNJ 206 - AIRTEL NETWORKS LTD. v. MUSICAL
COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Dingyadi v. INEC (2001) 44 NSCQR 301 - GPAY INSTANT SOLUTIONS LTD. v.

JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Dingyadi v. INEC (2001) 44 NSCQR 301 - NICON TRUSTEES LTD. v. ALMA

BEACH ESTATE LTD. (2019) 9 CLRN 141

Divine Ideas Ltd v. Umoru (2007) All FW LR (Pt. 380) 1468 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Donbraye & Anor v. Preyor & Ors (2014) 25 WRN 44; (2014) LPELR-22286 (CA)
- AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019)
9 CLRN 52

Dongtoe C.S.C, Plateau State (2001) FWLR at 1663; (2001) 9 NWLR (Pt.717)
132 - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS
(2019) 9 CLRN 1

Eastern Breweries Plc & Anor v. Henry Nwokoro (2012) 14 NWLR (Pt. 1321) 488
- DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019)
9 CLRN 90

x
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

Ebba v. Ogodo (1984) 1 SCNLR 372 - AIRTEL NETWORKS LTD. v. MUSICAL

COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Edem v. Canon Balls Ltd. (2005) 6 SC (Pt. 11) 16, (2005) 12 NWLR (Pt. 938) 27 -
ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019)
9 CLRN 1

Edgerode v. Ikine (2001) SC (Pt. 11) 94 - NICON TRUSTEES LTD. v. ALMA

BEACH ESTATE LTD. (2019) 9 CLRN 141

Edolor v. Osayande (1992) NWLR (Pt. 249) 524; (1992) LPELR-5053 (SC) 43 -
DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9
CLRN 90

EFCC v. Ayodele Fayose & Anor (2018) LPELR 44 131 - NICON TRUSTEES LTD.
v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

EFCC v. Ekeocha (2009) All FWLR (Pt. 458) 310 - DOMAX ENGINEERING LTD.
& ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Effiong & Ors v. Ebong (2015) 63 NLLR (Pt. 223) 310 - GPAY INSTANT
SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Ehuwa v. O.S.I.E.C. (2006) 10 NWLR (Pt. 1012) 544 - NICON TRUSTEES LTD. v.
ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Ekaete v. Union Bank of Nigeria Plc (2014) LPELR- 23111 (CA) 66 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Ekaeteh v. Nigeria Housing Development Society Ltd. (1973) 6 S.C. 183 - ALH.
ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9
CLRN 1

Ekweghiariri v. Unachukwu & Ors (2013) LPELR- 22074 (CA) 20 - DOMAX

ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Elebanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76 - GPAY INSTANT SOLUTIONS

LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Elkali & Anor v. Fawaz 6 WACA 212 - DOMAX ENGINEERING LTD. & ANOR. v.
UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Emavworhe Etajata & 2 Ors v. Pete Igbini Plogboo & Anor (2007) 6 SC (Pt. 11) 24
- DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019)
9 CLRN 90

xi
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

Emenyonu v. Udoh (2000) 9 NWLR (Pt. 671) 25 - DOMAX ENGINEERING LTD. &
ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) 340 - NICON TRUSTEES LTD. v.
ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Eriobuna v. Obiorah (1999) 8 NWLR (Pt. 616) 622 - AIRTEL NETWORKS LTD. v.
MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) Pg. 554; (2007) LPELR-1171 (SC)
55 - DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR.
(2019) 9 CLRN 90

Eyo & Ors v. Okpa & Anor (2010) 6 NWLR (Pt. 1191) 611 - NICON TRUSTEES
LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Eze & Ors v. Obiejuna & Ors. (1995) LPELR-1191 (SC); (1995) 6 NWLR (Pt. 404)
639 - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS
(2019) 9 CLRN 1

Eze v. Okolonji (1997) 7 NWLR (513) 527 - AIRTEL NETWORKS LTD. v. MUSICAL
COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Ezeafulukwe v. John Holt Ltd (1996) 2 NWLR (Pt. 432) 511 SC - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 849) 617 - DOMAX ENGINEERING

LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Ezenu v. Aghezel (1991) 4 NWLR (Pt.187) 631 - BARNAX AIRLINES LTD. v.

MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Fagbule v. Rodrigues (2002) 7 NWLR (Pt. 765) 188 - AIRTEL NETWORKS LTD.
v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Fagunwa v. Adibi (2004) FWLR (Pt. 7.26) 340 - DOMAX ENGINEERING LTD. &
ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Faleye & Ors v. Dada & Ors (2016) LPELR-40297 (SC) 33 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Fasakin Foods Nig. Ltd v. Martins Babatunde Shosanya (2006) 10 NWLR (Pt.987)
126 - GPAY INSTANT SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9
CLRN 158

xii
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

Federal Mortgage Bank Ltd. v. IDK (1995) 6 NWLR (Pt. 400) 226 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

First Bank of Nig. Plc v. Okelewu & Anor (2013) LPELR-20155 (CA) 43 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

FMBN v. Babatunde (1999) 12 NWLR (Pt. 632) 683 - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Gabriel Ativie v. Kabelmetal (Nig.) Ltd (2008) LPELR-591 (SC); (2008) 10 NWLR
(Pt. 1095) 399; (2008) 5 - 6 SC (Pt. II) 47 - GPAY INSTANT SOLUTIONS LTD. v.
JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Gafar v. Govt. of Kwara State (2007) 4 NWLR (Pt.1024) 375 - GPAY INSTANT
SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Galadima v. Tambai (2000) 1 SC 1 (2000) 11 NWLR (Pt.677) 1 - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Gbadamosi v. Kabo Travels Ltd (2000) 8 NWLR (Pt. 668) 243 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

GFK Investment Ltd. v. Nitel Plc (2009) 2 CLRN 111 - DOMAX ENGINEERING
LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Green v. Green (1987) 2 N.S.C.C. 1115 - GPAY INSTANT SOLUTIONS LTD. v.

JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Hamidu v. Saha Ventures Ltd (2004) 7 NW LR (Pt. 813) 618 - DOMAX

ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Hensaw v. Effanga (2009) All FWLR (Pt. 466) 1901 - DOMAX ENGINEERING
LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Hon. Justice Theresa Uzoamaka Uzokwe v. Dr. Afam Uzokwe (2016) LPELR-
40945 (CA) - AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY
OF NIG. (2019) 9 CLRN 52

Hyson (Nigeria) Limited v. Augustina N. Ijeoma & Ors (2008) LPELR - 5159 (CA)
- NICON TRUSTEES LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Ibiyeye v. Fajule (2006) 3 NWLR (Pt. 968) 640 - ALH. ABUBAKAR ABDULKADIR
v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Idika & Ors v. Erisi & Ors (1988) 2 NWLR (Pt.78) 563 - BARNAX AIRLINES LTD.
v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70
xiii
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

Ifeajuna v. Ifeajuna (2000) 9 NWLR (Pt. 671) 107 - DOMAX ENGINEERING LTD.
& ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Ikenta Best Nig. Ltd v. A.G. Rivers State (2008) 22 WRN - BARNAX AIRLINES
LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Ikine v. Edjerode (2001) 12 SC (Pt. 11) 94 - GPAY INSTANT SOLUTIONS LTD.

v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Intercontractors v. National Provident Fund Management Board (1998) 2 NWLR

(Pt. 76) 280 - NICON TRUSTEES LTD. v. ALMA BEACH ESTATE LTD. (2019) 9
CLRN 141

Isistor v. Fakorede (2008) 1 NWLR (Pt. 1069) 602 - DOMAX ENGINEERING LTD.
& ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

James Odunayo v. The State (1972) LPELR - 15509 (SC) - ALH. ABUBAKAR
ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

JFS Investment Ltd v. Brawal Line Ltd & 2 Ors (2010) 4 CLRN 1 - NICON
TRUSTEES LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Jolasun v. Bamgboye (2011) 16 WRN 1 - DOMAX ENGINEERING LTD. & ANOR.

v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Kanu v. Asuzu & Anor (2015) LPELR-24376(CA) - GPAY INSTANT SOLUTIONS

LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Kashasadi v. Noma (2007) 13 NWLR (Pt.1052) 510 - BARNAX AIRLINES LTD. v.

MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Kegwuoha v. Ohawuchi (1996) 31 NWLR (Pt. 435) 146 - DOMAX ENGINEERING

LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Kennedy v. De Trafford (1987) AC 180 - ALH. ABUBAKAR ABDULKADIR v. ALH.

TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Kerian Ikpara Obasi v. Mikson Establishment Industries Ltd (2016) 16 NWLR

(Pt.1539) 335 - BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR.
(2019) 9 CLRN 70

Khaled Chami v. United Bank for Africa (2010) 1 SCNJ 23 - BARNAX AIRLINES
LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Klifco (Nig) Ltd v. N.S.I.T.F.M.B (2005) 6 NWLR (Pt. 922) 445 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90
xiv
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

L.S.D.P.C v. N.L. & S.F. Ltd (1992) 5 NWLR (Pt. 244) 653 - DOMAX ENGINEERING
LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

lbiyeye v. Fojule (2006) 3 NWLR (Pt. 968) 640 - ALH. ABUBAKAR ABDULKADIR
v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

ldowu v. Jaiyeola (1970) 1 ALR (Comm) 289 - ALH. ABUBAKAR ABDULKADIR

v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Long - John v. Black (1998) 6 NWLR (Pt. 555) 524 - BARNAX AIRLINES LTD. v.
MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Madukolu v. Nkemdilim (1962) 2 SCNLR 341 - GPAY INSTANT SOLUTIONS

LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555 - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) 443 - AIRTEL NETWORKS LTD. v.
MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Majekodunmi v. Co-op Bank (1997) 10 NWLR (Pt.524) 198 - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Mamuda v. State (2019) LPELR-46343 (SC) 15 - DOMAX ENGINEERING LTD. &

ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Matthew Ikpekpe v. Warri Refinery & Petrochemical Company Limited & Anor.
(2018) LPELR-44471 (SC) - GPAY INSTANT SOLUTIONS LTD. v. JULIE
IDAHOSA & ANOR. (2019) 9 CLRN 158

MBA v. MBA (2018) LPELR- 44295 (SC) 31 - DOMAX ENGINEERING LTD. &
ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Messrs N.V. Scheep & Anor v. The MV Araz & Anor (2016) 15 NWLR (Pt. 1691)
622 - GPAY INSTANT SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9
CLRN 158

Mills v. Renner 6 WACA 144 - DOMAX ENGINEERING LTD. & ANOR. v. UNITY
BANK PLC & ANOR. (2019) 9 CLRN 90

Ministry of Education, Anambra State & Ors v. Obong - Ifiok (Dr.) Anny Asikpo
(2013) LPELR- 21393 (CA) - BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA
PLC & ANOR. (2019) 9 CLRN 70

xv
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Mobil Production (Nigeria) Unltd v. Monokpo (2003) 18 NWLR (Pt. 852) 346; (2003)
12 S.C. (Pt. II) 50 - AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT
SOCIETY OF NIG. (2019) 9 CLRN 52

Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254 - AIRTEL NETWORKS

LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Mokwe v. Williams (1997) 11 NWLR (Pt 525) 309 - AIRTEL NETWORKS LTD. v.
MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Molade v. Molade (1953) SCNLR 26 - DOMAX ENGINEERING LTD. & ANOR. v.

UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Momoda Raji v. M. Williams & Ors. 16 NLR 149 - ALH. ABUBAKAR ABDULKADIR
v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Mr. Ibibiama Odom & Ors v. PDP & Ors (2015) LPELR - 24351 (SC) - NICON
TRUSTEES LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Mr. Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (2016) 14 NWLR
(Pt.1533) 458 - BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR.
(2019) 9 CLRN 70

Mufutau Olayiwola & 4 Ors v. FRN (2006) 8 WRN 109 - NICON TRUSTEES LTD.
v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

N.I.C. v. Aminu (2012) 8 NWLR (Pt. 1302) 330 - ALH. ABUBAKAR ABDULKADIR
v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

NALSA & Team Associated v. Nigerian National Petroleum Corporation (1991)

LPELR - 1935 (SC); (1991) 8 NWLR (Pt. 212) 652 - AIRTEL NETWORKS LTD. v.
MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

National Electric Power Authority v. Ango (2001) 15 NWLR (Pt. 737) 627 - AIRTEL
NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN
52

Ndakuba v. Kolomo (2008) 4 NWLR (Pt. 915) 431 - AIRTEL NETWORKS LTD. v.
MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

NDIC v. Odigie (2012) LPELR-9289 (CA) - GPAY INSTANT SOLUTIONS LTD. v.

JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314 - ALH. ABUBAKAR ABDULKADIR
v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

xvi
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627 - ALH. ABUBAKAR ABDULKADIR
v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Nicon v. Power & Industrial Engr Co. Ltd (1986) 1 SC 1 - DOMAX ENGINEERING
LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Nig. Advert Services Ltd. v. UBA PIc (1999) 8 NWLR (Pt.616) 546 - ALH.
ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9
CLRN 1

Nig. Housing Dev. Society Ltd & Anor v. Mumuni (1997) NSCC 65 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Niger Progress Ltd v. North East Line Corporation (1989) 3 NWLR (Pt. 107) 68 -
BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN
70

Nigerian Advertising Services Ltd v. UBA Ltd (2005) 14 NWLR (Pt. 945) 421 -
ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019)
9 CLRN 1

NLNG Ltd. v. Green & Ors. (2009) LPELR-4600(CA) - GPAY INSTANT

SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

NNPC and Anor v. Famfa Oil (2012) 5 CLRN 1 - ALH. ABUBAKAR ABDULKADIR
v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Nokoprise Int. Co Ltd v. Do Best Corpn. (1997) 9 NWLR (Pt. 570) 334 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

NUT Taraba State & ors v. Habu & Ors (2018) LPELR-44057 (SC); (2018) 15
NWLR (Pt.1642) 381 - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR
MOHAMMED & 3 ORS (2019) 9 CLRN 1

Nwadiaro & Ors v. SPDC (1990) 5 NWLR (Pt. 150) 322 - DOMAX ENGINEERING
LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Nwankwo v. Yar’adua (2010) 12 NWLR (Pt. 1209) 518 - GPAY INSTANT

SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Nwaolisah v. Nwabufoh (2011) LPELR- 2115 (SC) 26 - BARNAX AIRLINES LTD.

v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Nwaolisah v. Nwabufoh (2011) LPELR- 2115 (SC) 52 - AIRTEL NETWORKS LTD.

v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

xvii
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

O.K Contact Point Ltd. v. Progress Bank (1999) 5 NWLR (Pt. 604) 631 - GPAY
INSTANT SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Obianwu & Ors v. Obianwu & Ors (2017) LPELR-42676 (CA) 65 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Ode v. Balogun (1999) 10 NWLR (Pt. 622) 214 - GPAY INSTANT SOLUTIONS
LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Odetayo v. Bamidele (2007) 17 NWLR (Pt.1 062) 77 - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Odu’a Inv. Co. Ltd v. Talabi (1991)1 NWLR (Pt 170) 761 - NICON TRUSTEES
LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Odunukwe v. Ofomata (2010) 18 NWLR (1225) 404 - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166 - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Ogbechie & Ors v. Gabriel Onochie & Ors (1996) 3 S.C. 54 - BARNAX AIRLINES
LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Ogbimi v. Niger Construction Ltd (2006) All FWLR (Pt. 317) 390 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Ogbolosingba & Anor v. Bayelsa State Independent Electoral Commission (2016)

2 WRN 35 - NICON TRUSTEES LTD. v. ALMA BEACH ESTATE LTD. (2019) 9
CLRN 141

Ogolo v. Fubara (2003) 11 NWLR (Pt. 31) 231 - AIRTEL NETWORKS LTD. v.
MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Ogun v. Asemah (2002) 4 NWLR (Pt. 756) 208 - DOMAX ENGINEERING LTD. &
ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Ogunbadejo v. Owoyemi (1993) LPELR - 2321 (SC) - NICON TRUSTEES LTD. v.

ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Ogunsola v. National Insurance Corporation of Nigeria (NICON) (2010) 6 NMLR

363 - DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR.
(2019) 9 CLRN 90

Oheakilam v. Nwamara (2003) 12 NWLR (Pt. 835) 614 - NICON TRUSTEES LTD.
v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141
xviii
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Ojo v. Primate Adejobi (1978) 3 S.C. 65 - BARNAX AIRLINES LTD. v. MOBIL

OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Okafor v. U.B.N PIc. (2007) All FWLR (Pt. 347) 743 - BARNAX AIRLINES LTD. v.
MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Okarika & Ors v. Samuel & Ors (2013) LPELR-19935 (SC); (2013) 7 NWLR
(Pt.1352) 19 - BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR.
(2019) 9 CLRN 70

Okere v. State (2016) LPELR-26057 (SC) 30 - DOMAX ENGINEERING LTD. &

ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Okomu Oil Palm Co. v. Iserhienrhien (1996) 1 NWLR (Pt. 422) 94 - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Okonkwo v. Cooperative & Commerce Bank (Nig.) PIc & Ors (2003) LPELR-2484
(SC); (2003) 8 NWLR (Pt. 822) 347 - ALH. ABUBAKAR ABDULKADIR v. ALH.
TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Okoye v. Dumez Nig. Ltd (1985) NWLR (Pt. 4) 263; (1985) LPELR-2506 (SC) 14 -
DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9
CLRN 90

Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199)
501 - AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG.
(2019) 9 CLRN 52

Okunzua v. Amosu (1992) NWLR (Pt. 245) 416; (1992) LPELR-2531 (SC) 20 -
DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9
CLRN 90

Olagbaju v. Abass (2011) 16 NWLR (Pt. 1274) 453 - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Olagunju & Anor v. PHCN Plc (2011) LPELR - 2556 (SC) - NICON TRUSTEES
LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Olale v. Ekwelendu (1989) 4 NWLR (Pt. 115) 326 - DOMAX ENGINEERING LTD.
& ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Olatunbosun v. Texaco Nig. Plc (2012) LPELR-7805 (SC) 18 - DOMAX

ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Omega Bank (Nig.) Plc v. O.B.C. Ltd (2005) All FWLR (Pt. 249) 1964 - BARNAX
AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

xix
 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

Omo v. Judicial Service Commission Delta State (2000) 12 NWLR (Pt. 682) 444 -
AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019)
9 CLRN 52

Onafowokan v. Wema Bank (2011) Vol 48 WRN 1 - NICON TRUSTEES LTD. v.

ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514 - DOMAX ENGINEERING LTD. &
ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Onochie & Ors. v. Odogwu & Ors. (2006) LPELR-2689(SC); (2006) 6 NWLR (Pt.
975) 65 - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3
ORS (2019) 9 CLRN 1

Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65 - GPAY INSTANT SOLUTIONS

LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

OOMF Ltd & Anor v. NACB Ltd & Anor (2005) 12 NWLR (Pt. 1098) 412 - AIRTEL
NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN
52

Orianzi v. A.G. Rivers State & Ors (2017) LPELR-41137 (SC); (2017) 6 NWLR
(Pt.1561) 224 - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED
& 3 ORS (2019) 9 CLRN 1

Osareren v. FRN (2018) LPELR – 4383 (SC); (2018) 10 NWLR (Pt. 1627) 221 -
ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019)
9 CLRN 1

Ossai v. Wakwah (2006) 4 NWLR (Pt. 969) 208 - AIRTEL NETWORKS LTD. v.
MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Osuji Okoro Oforkire & Anor v. John Maduike & Ors (2003) 5 NWLR (Pt.812) 166
- ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS
(2019) 9 CLRN 1

Osun State Independent National Electoral Commission & Anor v. NCP (2013) 9
NWLR (Pt. 1360) 451 - NICON TRUSTEES LTD. v. ALMA BEACH ESTATE LTD.
(2019) 9 CLRN 141

Overseas Construction Ltd v. Creek Enterprises Ltd (1985) 3 NWLR (Pt.13) 407 -
AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019)
9 CLRN 52

Pam & Anor v. Mohammed & Anor (2008) 16 NWLR (Pt. 1112) 1 SC - DOMAX
ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

xx
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Pate & Ors v. Odeyemi (2015) LPELR - 40755 (CA) - NICON TRUSTEES LTD. v.
ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Paul Nwadike & Ors v. Cletus Ibekwe & Ors (1987) 12 S.C. 14 - BARNAX AIRLINES
LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

R v. Kent Justice L.R. 6 Q.B. 305 - BARNAX AIRLINES LTD. v. MOBIL OIL
NIGERIA PLC & ANOR. (2019) 9 CLRN 70

R.T. Briscoe (Nig.) Ltd v. Universal Insurance Limited (1996) 2 ALR COMM 263 -
DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9
CLRN 90

Rafukka v. Kurfi (1996) 6 NWLR (Pt. 453) 235 - ALH. ABUBAKAR ABDULKADIR
v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Registered Trustees of the Airline Operators of Nigeria in Nigerian Airspace

Management Agency (2014) 8 NWLR (Pt.1408) 1 - ALH. ABUBAKAR
ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

S & D Construction Co. Ltd v. Chief Bayo Ayoku & Anor (2011) 6 SCNJ (Pt. 1) 268
- AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019)
9 CLRN 52

Sa’ad v. Maifata (2009) All FWLR (Pt. 466) 1930 - DOMAX ENGINEERING LTD. &
ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23 - AIRTEL NETWORKS LTD. v.

MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Sanusi v. Daniel (1956) SCNL 288; (1956) 1 NSCC 85; (1959) 1 FSC 93 - ALH.
ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9
CLRN 1

Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 - NICON TRUSTEES LTD. v.
ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Savannah Bank Nig. Ltd v. S.O Corporation (2001) 1 NWLR (Pt 693) 194 - AIRTEL
NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN
52

Savannah Bank of Nig. Ltd v. Ajilo (1989) 1 NWLR (Pt. 97) 305 - ALH. ABUBAKAR
ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Securities And Exchange Commission v. Kasunmu (2003) 12 CMLR 133 - DOMAX

ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

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 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

Shell Petroleum Development Co Ltd v. Tigbara Edamkhue & Ors (2009) 7 SCNJ
124 - BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9
CLRN 70

Shema & Ors v. FRN (2018) LPELR-43723 (SC); (2018) 9 NWLR (Pt. 1624) 337 -
ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019)
9 CLRN 1

Skenconsult v. Ukey (1981) 1 SC 6 - GPAY INSTANT SOLUTIONS LTD. v.

JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Sogbamu v. Odunaiya (2013) All FWLR (Pt. 700) 1247 - NICON TRUSTEES LTD.
v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Solanke v. Abed (1962) 1 All NLR (1962) 1 SCNLR 371 - ALH. ABUBAKAR
ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Suberu v. A.I.S. & Ltd (2001) All FWLR (Pt. 380) 1512 - DOMAX ENGINEERING
LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Sunday Soreyeun & Ors v. Chief Augustine A. Ajuebor (2019) LPELR-16751 (CA)
- AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019)
9 CLRN 52

T.S.A. Industries Ltd. v. Kema Investments Ltd. (2006) LPELR-3129 (SC) -

BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Taiwo v. Adegboro (1997) 11 NWLR (Pt. 528) 224 - ALH. ABUBAKAR

ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Taylor v. Arthur 14 MACA 179 - DOMAX ENGINEERING LTD. & ANOR. v. UNITY
BANK PLC & ANOR. (2019) 9 CLRN 90

Temco Engineering and Co. Ltd v. Savannah Bank of Nigeria Ltd (1995) 5 NWLR
(Pt. 397) 607 - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED
& 3 ORS (2019) 9 CLRN 1

The Minister of Petroleum & Mineral Resources & Anor v. Expo-Shipping Line
(Nigeria) Ltd (2010) LPELR - 3189 (SC) - NICON TRUSTEES LTD. v. ALMA
BEACH ESTATE LTD. (2019) 9 CLRN 141

TSA Industries Ltd. v. FBN Plc. (2012) 124 NWLR (Pt. 1320) 345 A-C - GPAY
INSTANT SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Tsalibawa v. Habiba (1992) 2 NWLR (Pt.174) 461 - BARNAX AIRLINES LTD. v.

MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

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Tukur v. UBA & Ors (2012) LPELR-9337 (SC) 45 - DOMAX ENGINEERING LTD.
& ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Tunbi v. Obawole (2000) 1 S.C. 1; (2000) LPELR- 3274 (SC) 16 - AIRTEL

NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

U.B.A v. BTL Industries Ltd (2007) 1 CLRN 1 - DOMAX ENGINEERING LTD. &
ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

UBA Plc v. J. I. Efemini & Sons (2018) LPELR-44150 (CA) 19 - DOMAX

ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

UBA. Plc. v. JM & Co., (Nig.) Ltd. (2016) 5 NWLR (Pt. 1504) 171 - GPAY INSTANT
SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Udeh Kingsley Emeka v. The State (2014) LPELR- 23020 (SC) 34 - AIRTEL
NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Uma & Ors v. Effiom & Ors (2013) LPELR - 21407 (CA) - NICON TRUSTEES
LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Umannah v. Obong Victor Attah (2006) 17 NWLR (Pt. 1009) 503 - GPAY INSTANT
SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN 158

Umar v. Bailey & Ors (2018) LPELR-44285 (CA) 37 - DOMAX ENGINEERING

LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Unibiz (Nig.) Ltd v. Commercial Bank Credit Ltd (2003) 6 NWLR (Pt 816) 402 -
NICON TRUSTEES LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Universal Trust Bank v. Awanija Enterprises Ltd (1994) 1 NWLR (Pt. 346) 56 -
ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019)
9 CLRN 1

University of Ibadan v. Adetoro (1991) 4 NWLR (Pt. 185) 375 - DOMAX

ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Usman v. Duke (2004) 7 NWLR (Pt. 871) 116 - AIRTEL NETWORKS LTD. v.
MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN 52

Uzoma v. Asodike (2009) LPELR-8421 (CA) 19 - DOMAX ENGINEERING LTD. &

ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Veepee Ind. Ltd v. Cocoa Ind. Ltd (2008) 4 - 5 SC (Pt. 1) 116 - NICON TRUSTEES
LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

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 TABLE OF CASES REFERRED TO IN (2019) 9 CLRN

Viatonu v. Odutayo (1950) 19 NLR 119 - ALH. ABUBAKAR ABDULKADIR v.

ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

W.A.B. Ltd. v. Savannah Ventures Ltd. (2002) 10 NWLR (Pt. 775) 401 - ALH.
ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9
CLRN 1

Warner v. Jacob (1992) 20 Ch, D. 220 - ALH. ABUBAKAR ABDULKADIR v.

ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Wema Bank PIc v. Abiodun (2006) 9 NWLR (Pt. 984) 1 - ALH. ABUBAKAR
ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN 1

Wema Bank v. Owosho (2018) LPELR-43857(CA) - DOMAX ENGINEERING LTD.

& ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Williams & Anor v. Adebayo & Ors (2012) LPELR - 7940 (CA) - NICON TRUSTEES
LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN 141

Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 - BARNAX
AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

Xtoudos Service (Nig.) Ltd. v. Taisei W.A. Ltd (2006) WRN 46 at 37; (2006) 15
NWLR (Pt.1003) 533 - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR
MOHAMMED & 3 ORS (2019) 9 CLRN 1

Yaro v. AC Ltd (2007) 10 MJSC (Pt. 186) 203 - DOMAX ENGINEERING LTD. &
ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN 90

Yaro v. Arewa Construction Ltd. & Ors (2007) LPELR-3516(SC), (2007) 17 NWLR
(Pt. 1063) 333 - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED
& 3 ORS (2019) 9 CLRN 1

Zenith Bank Plc v. Rita Uzoamaka Ifeadi (2019) LPELR-46773) (CA) 45 - BARNAX
AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN 70

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 DIGEST OF CASES REPORTED IN (2019) 9 CLRN

APPEAL – Briefs of Argument – are meant to assist the court in determining

the real issues in controversy between the parties and reply briefs are
meant to address new issues. - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR
MOHAMMED & 3 ORS (2019) 9 CLRN - PAGE 23

APPEAL – Challenge – An issue challenging specific grounds of appeal

not properly laid before the court is incompetent and will be
discountenanced. - AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT
SOCIETY OF NIG. (2019) 9 CLRN - PAGE 62

APPEAL – Ground of Appeal – In order to determine whether a ground of

appeal is purely law or mixed law and fact, the court must scrutinize the
ground of appeal and its particulars. - BARNAX AIRLINES LTD. v. MOBIL OIL
NIGERIA PLC & ANOR. (2019) 9 CLRN - PAGES 81, 82, 83

APPEAL – Ground of Appeal – must flow from the judgment appealed

otherwise it is incompetent and liable to be struck out. - NICON TRUSTEES
LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN - PAGE 146

APPEAL – Interference – An appellate court will not interfere with the

right decision and exercise of discretion by a lower court. - BARNAX
AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN - PAGE 87

APPEAL – Issues – An appellate court being intermediate, must ensure to

make pronouncement on all issues submitted before it; court is required
to do substantial justice as against technical justice. - ALH. ABUBAKAR
ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN - PAGES
46, 47

APPEAL – Issues – Where the consideration and determination of an issue

will resolve an appeal, the court is not bound to consider all the issues
raised. - AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG.
(2019) 9 CLRN - PAGES 66, 67

APPEAL – Motion on Notice – A respondent who intends to challenge the

competence of some and not all the grounds of appeal is required to file a
motion on notice and not a preliminary objection. - ALH. ABUBAKAR
ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN - PAGES
26, 27, 46

APPEAL – Notice – A respondent who intends to challenge the grounds of

appeal must do so by notice of motion and not by filing a notice of
preliminary objection. - AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT
SOCIETY OF NIG. (2019) 9 CLRN - PAGES 61, 62

APPEAL – Preliminary Objection – Leave of court is required to move the

motion of preliminary objection and where no leave is sought and obtained,

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 DIGEST OF CASES REPORTED IN (2019) 9 CLRN

the objection is deemed abandoned. - ALH. ABUBAKAR ABDULKADIR v.

ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN - PAGE 26

APPEAL – Preliminary Objection – Purpose is to terminate the hearing of

an appeal. - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3
ORS (2019) 9 CLRN - PAGES 26, 45

APPEAL – Reply – is only necessary where new issues are raised in the
respondent’s brief and should be restricted to answering new points raised
by the respondent. - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR
MOHAMMED & 3 ORS (2019) 9 CLRN - PAGES 23, 24

APPEAL – Respondent’s Notice – A perverse judgment will not be affirmed

and varied on some other grounds other than the reasons given by the
trial court. - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3
ORS (2019) 9 CLRN - PAGE 31

APPEAL – Respondent’s Notice – Is meant to retain the judgment appealed

against while requesting the court to vary it. - ALH. ABUBAKAR
ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN - PAGES
30, 31

APPELLATE COURT – Interference – An appellate court will not interfere

but affirm the right decision of a lower court. - NICON TRUSTEES LTD. v.
ALMA BEACH ESTATE LTD. (2019) 9 CLRN - PAGE 154

COMMERCIAL LITIGATION – Counter Claim – is a response of a defendant

to a claim in which he incorporates in the same suit a relief, claim or
remedy against the claimant. - DOMAX ENGINEERING LTD. & ANOR. v. UNITY
BANK PLC & ANOR. (2019) 9 CLRN - PAGES 118, 119

GROUND OF APPEAL – Issue – A ground of appeal with no issue derived

therefrom is deemed abandoned. - BARNAX AIRLINES LTD. v. MOBIL OIL
NIGERIA PLC & ANOR. (2019) 9 CLRN - PAGE 83

GROUND OF APPEAL – Issue – Any issue raised and argument canvassed

therefrom must relate to and be derived from a ground of appeal otherwise
such issue and argument are incompetent and will be discountenanced. -
BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN -
PAGES 83, 84

INTERPRETATION – Statute – Any interpretation that defeats the intention

of the lawmaker will be abandoned in favour of that which would promote
the objective of the law. - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR
MOHAMMED & 3 ORS (2019) 9 CLRN - PAGES 41, 42

JUDICIAL DECISIONS – Interference – An appellate court will not interfere

with the decision of a trial court to evaluate evidence, except where the

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 DIGEST OF CASES REPORTED IN (2019) 9 CLRN

evidence is documentary and the trial court failed to properly evaluate it.
- DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR. (2019) 9
CLRN - PAGES 122, 128, 129

JURISDICTION – Contract for Service – The National Industrial Court does

not have jurisdiction to hear and determine a claim bordering on contract
for service and consequently have no powers to grant injunctions on such
claim. - GPAY INSTANT SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9
CLRN - PAGE 166

JUSTICE – Equity – follows the law but where strict adherence to law will
lead to injustice, equity will step in to provide substantial justice as equity
looks at the substance and not the form. - DOMAX ENGINEERING LTD. &
ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN - PAGE 130

LAND LAW – Registrable Instruments – Where a registrable instrument is

not registered, it cannot be admissible in evidence to prove ownership;
however, where such instrument is meant to prove payment of purchase
price and evidence of transaction, it will be admissible and where properly
proved, will confer equitable interest which, when combined with
possession, may result in legal interest. - DOMAX ENGINEERING LTD. &
ANOR. v. UNITY BANK PLC & ANOR. (2019) 9 CLRN - PAGES 135, 136

LIMITATION LAW – Debt Recovery – Formal demand for payment is a

condition precedent and time will start to run from the date a letter of
demand is sent to the debtor for payment as the cause of action accrued
on that date. - DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC &
ANOR. (2019) 9 CLRN - PAGES 132, 133

LIMITATION LAW – Debt Recovery – To be valid and admissible, letter of

demand must be sent to the debtor within the period allowed by the
limitation law for enforcing such right. - DOMAX ENGINEERING LTD. & ANOR.
v. UNITY BANK PLC & ANOR. (2019) 9 CLRN - PAGES 133, 134

LITIGATION – Abuse of Court Process – is the deliberate and improper use

of the rules, practice and procedure of the court in order to subvert the
course of justice. - GPAY INSTANT SOLUTIONS LTD. v. JULIE IDAHOSA &
ANOR. (2019) 9 CLRN - PAGES 166, 167

LITIGATION – Diligent Prosecution – A claimant must take necessary step

and act timeously in prosecuting his claim. - BARNAX AIRLINES LTD. v. MOBIL
OIL NIGERIA PLC & ANOR. (2019) 9 CLRN - PAGE 87

LITIGATION – Evaluation of Evidence – The privilege granted to the trial

court to evaluate evidence and ascribe probative value to it is borne out of
the vantage and unique position of the court to physically see and hear
witnesses give evidence. - DOMAX ENGINEERING LTD. & ANOR. v. UNITY
BANK PLC & ANOR. (2019) 9 CLRN - PAGE 121

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 DIGEST OF CASES REPORTED IN (2019) 9 CLRN

LITIGATION – Evaluation of Evidence – The trial Court has the discretion to

evaluate parties’ evidence and ascribe probative value and an appellate
court will not interfere with such exercise of discretion unless it is shown
that the court erred in its evaluation. - DOMAX ENGINEERING LTD. & ANOR.
v. UNITY BANK PLC & ANOR. (2019) 9 CLRN - PAGES 121, 122

LITIGATION – Fair Hearing – A party cannot allege breach of fair hearing

where he has been afforded the opportunity to be heard but failed to utilize
it. - AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019)
9 CLRN - PAGE 66

LITIGATION – Fair Hearing – Breach of fair hearing nullifies all proceedings

and renders them liable to be set aside by an appellate court. - AIRTEL
NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN -
PAGES 64, 65, 66

LITIGATION – Fair Hearing – Party alleging breach of fair hearing has the
onus to prove. - AIRTEL NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY
OF NIG. (2019) 9 CLRN - PAGE 66

LITIGATION – Fair Hearing – The attributes of fair hearing are that parties
must be given the opportunity to be heard on all material issues, equal
treatment, opportunity and consideration must be accorded parties,
proceedings must be heard in public with parties given adequate access
and justice must be manifestly seen and believed to be done. - AIRTEL
NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN -
PAGES 65, 66

LITIGATION – Issue – Court is at liberty to adopt or reformulate issues

formulated by the parties provided that where it decides to reformulate an
issue, the issue reformulated must capture the issues formulated by the
parties. - DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR.
(2019) 9 CLRN - PAGES 119, 120

LITIGATION – Jurisdiction – is determined by the claim. - GPAY INSTANT

SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN - PAGE 165

LITIGATION – Jurisdiction – is fundamental and once raised, must be

determined at the earliest stage of proceedings because no matter how
well conducted, court proceedings without jurisdiction are a nullity. - GPAY
INSTANT SOLUTIONS LTD. v. JULIE IDAHOSA & ANOR. (2019) 9 CLRN - PAGE
165

LITIGATION – Justice – A court of law should not sacrifice fairness and

justice on the ground of speedy dispensation of a matter. - AIRTEL
NETWORKS LTD. v. MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN -
PAGES 64, 65

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 DIGEST OF CASES REPORTED IN (2019) 9 CLRN
LITIGATION – Leave to File out of Time – The grant of leave to file a process
or motion out of time is not a grant of the reliefs sought in the process or
application. - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED &
3 ORS (2019) 9 CLRN - PAGE 29

LITIGATION – Locus Standi – is the capacity of a person to institute an

action and a person who is in imminent danger from the conduct of an
adverse party has locus. - DOMAX ENGINEERING LTD. & ANOR. v. UNITY
BANK PLC & ANOR. (2019) 9 CLRN - PAGE 119

LITIGATION – Misjoinder – Striking out is the proper order to make where

there is a misjoinder or non-joinder of parties. - NICON TRUSTEES LTD. v.
ALMA BEACH ESTATE LTD. (2019) 9 CLRN - PAGE 154

LITIGATION – Notice of Discontinuance – Once filed by a claimant, cannot

be revoked. - BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR.
(2019) 9 CLRN - PAGE 85

LITIGATION – Pending Application – A judge is obligated to hear and

determine all pending applications on a matter before delivering judgment
and failure to do so is a breach of fair hearing. - AIRTEL NETWORKS LTD. v.
MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN - PAGES 63, 64, 66

LITIGATION – Pending Application – Even where an application is filed

after preparation of judgment, the judge is bound to hear and determine
the application before delivering judgment. - AIRTEL NETWORKS LTD. v.
MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN - PAGE 64

LITIGATION – Relisting – In considering an application for relisting, the

court has absolute discretion to grant or refuse, provided such discretion
is exercised judicially and judiciously based on cogent and credible
evidence adduced by the applicant and whether the grant is prejudicial to
the other party. - BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR.
(2019) 9 CLRN - PAGES 84, 87

LITIGATION – Signature – The importance and reason for signing a

document is to authenticate and validate it as emanating from the person
who signed it. - BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR.
(2019) 9 CLRN - PAGE 86

LITIGATION – Signature – The importance and reason for signing a

document is to authenticate and validate it as emanating from the person
who signed it. - BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR.
(2019) 9 CLRN - PAGE 86

LITIGATION – Stay of Proceedings – A trial court is bound to suspend

proceedings in a matter where an application for stay of proceedings has
been filed to a higher court on the matter. - AIRTEL NETWORKS LTD. v.
MUSICAL COPYRIGHT SOCIETY OF NIG. (2019) 9 CLRN - PAGE 65
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 DIGEST OF CASES REPORTED IN (2019) 9 CLRN

LITIGATION – Unsigned Process – is worthless and of no probative value. -

BARNAX AIRLINES LTD. v. MOBIL OIL NIGERIA PLC & ANOR. (2019) 9 CLRN -
PAGE 86

MORTGAGE – Equity of Redemption – A mortgagor relying on the equity to

redeem must pay his debt in full before he can recover the mortgaged
property. - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3
ORS (2019) 9 CLRN - PAGE 35

MORTGAGE – Equity of Redemption – A purchaser of mortgaged property

will be free from the equity of redemption where the power of sale under
a mortgage has arisen and the debt remained unpaid. - ALH. ABUBAKAR
ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN - PAGES
35, 36

MORTGAGE – Governor’s Consent – Alteration of a right of occupancy

without the Governor’s consent is prohibited but does not vitiate any
agreement between parties to alienate land before the Governor’s consent.
- ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019)
9 CLRN - PAGE 39

MORTGAGE – Power of Sale – An allegation of fraud will not vitiate a

mortgagee’s power of sale except where it is shown that the sale was
done fraudulently or the property was grossly undervalued. - ALH.
ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN
- PAGES 35, 36, 39

MORTGAGE – Power of Sale – Sale of mortgaged property at gross

undervalue is invalid and the onus to prove undervalue lies with the
mortgagor who must also establish fraud; mortgagee can disprove the
allegation by showing that he sought and obtained expert advice on the
true value of the property. - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR
MOHAMMED & 3 ORS (2019) 9 CLRN - PAGES 43, 44

MORTGAGE – Right of Sale – The Auctioneer Law requiring 7 days’ notice

is meant to ensure adequate notice to the public or the purchaser and
non-compliance is only remediable in damages to the mortgagor and
cannot vitiate a valid sale to a purchaser who had no knowledge of the
irregularity. - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR MOHAMMED &
3 ORS (2019) 9 CLRN - PAGES 40, 41

PARTIES – Jurisdiction – The court lacks jurisdiction to hear and determine

a suit in which proper parties are not before the court. - NICON TRUSTEES
LTD. v. ALMA BEACH ESTATE LTD. (2019) 9 CLRN - PAGES 154, 155

PARTIES – Necessary Party – is a person whose presence is required in

order to properly resolve a dispute. - GPAY INSTANT SOLUTIONS LTD. v.
JULIE IDAHOSA & ANOR. (2019) 9 CLRN - PAGE 167

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 DIGEST OF CASES REPORTED IN (2019) 9 CLRN
RIGHT OF OCCUPANCY – Revocation – A Governor can only revoke the
right of occupancy of a land owner where the land is meant for public
purpose after given notice to the holder proposing the revocation and the
public purpose clearly spelt out in the notice and an opportunity to be
heard by the holder. - ALH. ABUBAKAR ABDULKADIR v. ALH. TUKUR
MOHAMMED & 3 ORS (2019) 9 CLRN - PAGES 37, 38, 39

STATUTE BAR – Limitation Law – The reason for limitation laws is to ensure
that a claimant files his suit timeously, when evidence is fresh and available
so as not to prejudice a defendant for lack of evidence or dearth of
witnesses. - DOMAX ENGINEERING LTD. & ANOR. v. UNITY BANK PLC & ANOR.
(2019) 9 CLRN - PAGE 134

SUPREME COURT – Decision – The Supreme Court can only depart from
its previous decision where it is shown that the earlier decision is erroneous
in law leading to a miscarriage of Justice. - ALH. ABUBAKAR ABDULKADIR
v. ALH. TUKUR MOHAMMED & 3 ORS (2019) 9 CLRN - PAGE 40

WINDING UP – Locus Standi – A receiver only has locus to sue on behalf of

the company, persons whose actions or omissions may affect the exercise
of his powers but has no powers to sue the company for which he was
appointed a receiver. - NICON TRUSTEES LTD. v. ALMA BEACH ESTATE LTD.
(2019) 9 CLRN - PAGE 153

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ALHAJI ABUBAKAR ABDULKADIR v. ALHAJI TUKUR MOHAMMED;

SAVANNAH BANK OF NIGERIA; ATTORNEY GENERAL OF KADUNA
STATE; DIRECTOR-GENERAL BUREAU FOR LANDS & SURVEY

5 SUPREME COURT OF NIGERIA

SC.50/2007
FRIDAY 3RD MAY, 2019

10 (RHODES-VIVOUR; NWEZE; AUGIE; EKO; GALUMJE; BAGE; ABBA-AJI, JJ.SC)

APPEAL – Briefs of Argument – are meant to assist the court in determining the
real issues in controversy between the parties and reply briefs are meant to address
new issues.
15
APPEAL – Reply – is only necessary where new issues are raised in the respondent’s
brief and should be restricted to answering new points raised by the respondent.

APPEAL – Preliminary Objection – Leave of court is required to move the motion

20 of preliminary objection and where no leave is sought and obtained, the objection
is deemed abandoned.

APPEAL – Preliminary Objection – Purpose is to terminate the hearing of an

appeal.
25
APPEAL – Motion on Notice – A respondent who intends to challenge the
competence of some and not all the grounds of appeal is required to file a motion on
notice and not a preliminary objection.

30 APPEAL – Respondent’s Notice – Is meant to retain the judgment appealed against

while requesting the court to vary it.

APPEAL – Respondent’s Notice – A perverse judgment will not be affirmed and

varied on some other grounds other than the reasons given by the trial court.
35
APPEAL – Issues – An appellate court being intermediate, must ensure to make
pronouncement on all issues submitted before it; court is required to do substantial
justice as against technical justice.

40 MORTGAGE – Equity of Redemption – A mortgagor relying on the equity to redeem

must pay his debt in full before he can recover the mortgaged property.

MORTGAGE – Equity of Redemption – A purchaser of mortgaged property will be

free from the equity of redemption where the power of sale under a mortgage has
45 arisen and the debt remained unpaid.

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MORTGAGE – Power of Sale – An allegation of fraud will not vitiate a mortgagee’s

power of sale except where it is shown that the sale was done fraudulently or the
property was grossly undervalued.

5 MORTGAGE – Governor’s Consent – Alteration of a right of occupancy without

the Governor’s consent is prohibited but does not vitiate any agreement between
parties to alienate land before the Governor’s consent.

MORTGAGE – Right of Sale – The Auctioneer Law requiring 7 days’ notice is

10 meant to ensure adequate notice to the public or the purchaser and non-compliance
is only remediable in damages to the mortgagor and cannot vitiate a valid sale to
a purchaser who had no knowledge of the irregularity.

MORTGAGE – Power of Sale – Sale of mortgaged property at gross undervalue is

15 invalid and the onus to prove undervalue lies with the mortgagor who must also
establish fraud; mortgagee can disprove the allegation by showing that he sought
and obtained expert advice on the true value of the property.

SUPREME COURT – Decision – The Supreme Court can only depart from its
20 previous decision where it is shown that the earlier decision is erroneous in law
leading to a miscarriage of Justice.

RIGHT OF OCCUPANCY – Revocation – A Governor can only revoke the right of

occupancy of a land owner where the land is meant for public purpose after given
25 notice to the holder proposing the revocation and the public purpose clearly spelt
out in the notice and an opportunity to be heard by the holder.

INTERPRETATION – Statute – Any interpretation that defeats the intention of

the lawmaker will be abandoned in favour of that which would promote the objective
30 of the law.

LITIGATION – Leave to File out of Time – The grant of leave to file a process or
motion out of time is not a grant of the reliefs sought in the process or application.

35 Facts:

The 2nd respondent granted a facility to the appellant. The facility was secured by
a legal mortgage of property covered by a certificate of occupancy situated at No.
3 Kachia Road, Shopping Complex, Kaduna South, Kaduna State. The debt fell
40 due and the appellant could not repay the loan. An agreement was reached to
allow the appellant to sell the property in order to repay the loan. At the expiration
of the time given to the appellant to sell the land, a further extension of time was
granted him to the 30th April, 1992. However, the appellant was unable to sell the
land on the due date and the 1st respondent exercising its right of sale sold the
45 property to the 1st respondent after advertising the sale in a National Newspaper

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and a notice of sale pasted on the property. 5th of June, 1992 was fixed for the
public auction and on that date, the 2nd respondent sold the property for N3,700,000.
00 (Three Million, Seven Hundred Thousand Naira) after two days’ notice of the
auction, to the 1st respondent who was the highest bidder.
5
The 1st respondent applied for and was granted Governor’s consent in respect of
the land. Two years later, in 1994, the appellant wrote a petition to the then Military
Governor of Kaduna State in respect of the sale of the property. Consequently, the
Governor directed the 3rd respondent to suspend activities on the perfection of title
10 to the property until the resolution of the allegations of the appellant. The appellant
also filed a suit against the respondents at the High Court of Kaduna State seeking
an order of the court to set aside the sale on the ground that the sale did not
comply with the provisions of the Land Use Act and that consent was not sought
until after he had successfully repaid the debt. He further alleged that the consent
15 given by the Governor was revoked and that the property was not sold for its
market value because proper evaluation was not done in order to determine the
true value before sale was effected. The appellant also alleged that a licensed
auctioneer was not appointed to carry out the sale. The respondents filed their
defence wherein they denied the allegations and also incorporated a counter claim.
20
The matter went to trial and the parties adduced evidence. The appellant conceded
that the payment he made was insufficient to liquidate the debt. At the end of trial,
the court gave judgment in favour of the appellant and dissatisfied, the respondents
filed a notice of appeal at the Court of Appeal, Kaduna Division. In response to the
25 appeal, the appellant filed a respondent’s notice seeking to affirm the judgment of
the trial court on grounds other than that relied on by the court. The appellant also
raised a preliminary objection to some of the grounds of appeal. At the hearing of
the appeal, the appellant adopted his argument relating to the preliminary objection
but failed to seek and obtain the leave of the court to do so. The preliminary
30 objection was discountenanced by the Court of Appeal on the ground that having
not sought and obtained the leave of court to move it, same was considered
abandoned.

At the end of proceedings, the court allowed the appeal and held that from the
35 evidence available to the trial court, the appellant was unable to prove the allegations
concerning the sale of the property. The court further held that the decision of the
trial court was perverse and that a respondent’s notice cannot be used to affirm
and vary a perverse decision. The appellant was dissatisfied with the Court of
Appeal’s decision and filed a notice of appeal at the Supreme Court of Nigeria,
40 Abuja urging the court to set aside the decision of the Court of Appeal.

Held (Unanimously dismissing the appeal):

[1] Appeal – Briefs of Argument – are meant to assist the court in

45 determining the real issues in controversy between the parties and

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reply briefs are meant to address new issues.

Briefs of argument filed by parties to an appeal are to assist the court in

determining with precision and in a concise manner the real issues in
5 controversy between the parties and to marshall their arguments and
submissions in a way that makes it easy for the court to discharge this
function, whereas reply briefs are for new issues arising from the
respondent’s briefs and arguments. Thus, where there are no new issues
pumping up, a reply brief is not necessary.
10 (P. 23 lines 22 - 27)

[2] Appeal – Reply – is only necessary where new issues are raised in
the respondent’s brief and should be restricted to answering new
points raised by the respondent.
15
A reply brief is necessary and usually filed when an issue of law or argument
raised in the respondent’s brief calls for a reply. Where a reply brief is
necessary, it should be limited to answering new points arising from the
respondent’s brief. Although, an appellant’s reply brief is not mandatory,
20 where a respondent’s brief raises issues or points of law not covered in
the appellant’s brief, an appellant ought to file a reply brief. It is not proper
to use a reply brief to extend the scope of the appellant’s brief or raise
issues not dealt with in the respondent’s brief. A reply brief is only necessary
when an issue of law or argument in the respondent’s brief calls for a,
25 reply. See Per Rhodes-Vivour, JSC. Cameroon Airlines v. Otutuizu (2011)
LPELR-827 (SC). (2011) 4 NWLR (Pt. 1238) 512. The purpose of reply
brief is to tackle new issues or argument raised in the respondents’ brief
of argument and not dealt with in the appellant’s brief of argument otherwise
a reply brief would be tantamount to a repetition of the appellant’s main
30 brief. In other words, it should not serve as a forum for reopening the
appellant’s case over again, And where it is coterminous in every respect
with the appellant’s main brief, it should be discountenanced. See per
Christopher Mitchell Chukwuma-Eneh, J.S.C. in Yam Arewa Construction
Ltd. & Ors (2007) LPELR-3516 (SC), (2007) 17 NWLR (Pt.1063) 333.
35 Thus, this appeal shall’ therefore considered discountenancing the
appellants’ 2 reply briefs. (P. 23 lines 37 - 45; P. 24 lines 1 - 10)

[3] Appeal – Preliminary Objection – Leave of court is required to move

the motion of preliminary objection and where no leave is sought
40 and obtained, the objection is deemed abandoned.

Per Kekere-Ekun in Registered Trustees of the Airline Operators of Nig v.

N.A.MA. (2014) LPELR - 22372 (SC); (2014) 8 NWLR (Pt. 1408) 1, held
that the failure of learned counsel for the respondent to seek leave to
45 move the objection at the hearing of the appeal, the objection was deemed

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to have been abandoned. The effect or consequence of a respondent to

an appeal who has raised in his respondent’s brief, a preliminary objection
but who failed/neglected/refused to seek the leave of the court to move
the objection before the hearing of the substantive appeal, is that the said
5 preliminary objection, is deemed to have been abandoned and the court
will ignore or discountenance it. See Per Ogbuagu, JSC in A.G. Rivers
State v. Ude & Ors (2006) LPELR-626(SC), (2006) 17 NWLR (Pt. 1008)
436. (P. 26 lines 12 - 22)

10 [4] Appeal – Preliminary Objection – Purpose is to terminate the hearing

of an appeal.

Even if it was considered, it would not have disposed of the whole appeal
which is the purpose of preliminary objection, since other grounds of the
15 appeal would have saved and sustained the appeal. See NUT Taraba
State & ors v. Habu & Ors (2018) LPELR-44057 (SC), (2018) 15 NWLR
(Pt.1642) 381. (P. 26 lines 27 - 30)

Per EKO, JSC:

20
By its nature a preliminary objection is directed against “the hearing of
the appeal” and not against some specified grounds of appeal where other
valid grounds of appeal could sustain the appeal. In other words, the
purpose of a preliminary objection is the contention that the appeal is
25 incompetent or fundamentally defective; and if it succeeds, it puts an end
in limine to the appeal; NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627;
Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314.
(P. 45 lines 38 - 44)

30 [5] Appeal – Motion on Notice – A respondent who intends to challenge

the competence of some and not all the grounds of appeal is required
to file a motion on notice and not a preliminary objection.

The apposite step and procedure was a motion on notice and not
35 preliminary objection. Same scenario came up in the case of NNPC v.
Famfa Oil Ltd. (2012) 5-7 MJSC, 1 at 29; (2012) 17 NWLR (Pt. 1328) 148,
wherein the Supreme Court per Rhodes-Vivour, JSC, had stated that
preliminary objections are only filed against the hearing of an appeal and
not against one or more grounds of appeal. If I may add to the above
40 where as in this appeal the preliminary objection was filed against some
grounds of appeal and there are other grounds of appeal that can sustain
the appeal, a preliminary objection was inappropriate. The respondent
ought to have filed a motion on notice since the preliminary objection if
successful would not have terminated the hearing of the appeal as there
45 were other grounds of appeal to sustain the appeal.

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Per EKO, JSC:

A complaint that some of and not all, the grounds are defective is not a
preliminary objection to the hearing of the appeal. A respondent who intends,
5 to object to the competence of any ground of appeal must do so by motion
on notice, and not by notice of preliminary objection.
(P. 26 lines 39 - 45; P. 27 lines 1 - 5; P. 46 lines 1 - 4)

[6] Appeal – Respondent’s Notice – Is meant to retain the judgment

10 appealed against while requesting the court to vary it.

In a respondent’s notice, a party seeks to retain the judgment appealed

from but at the same time wants it varied. See Per Mohammed, J.S.C. in
Eze & Ors v. Obiejuna & Ors. (1995) LPELR-1191 (SC), (1995) 6 NWLR
15 (Pt. 404) 639. It is a means for fine-tuning a victory and not to destroy it.
A respondent’s notice is only available to vary and retain the judgment
and not to reverse same. (P. 30 lines 42 - 45; P. 31 line 1)

[7] Appeal – Respondent’s Notice – A perverse judgment will not be

20 affirmed and varied on some other grounds other than the reasons
given by the trial court.

Where in fact the judgment of a court is perverse, substantially and gravely

without merit as in the present case, where the trial court goofed in the
25 appreciation, comprehension and evaluation of the facts and the law to
affirm the judgment and vary it with some other grounds or reasons given
by the trial court will be antithetical and anachronistic to justice, for a
wrong and faulty foundation cannot give a sound and strong house.
Therefore, there cannot be merit in the respondent’s notice.
30 (P. 31 lines 11 - 16)

[8] Appeal – Issues – An appellate court being intermediate, must ensure

to make pronouncement on all issues submitted before it; court is
required to do substantial justice as against technical justice.
35
Per EKO, JSC:

For whatever the preliminary objection was worth the lower court, being
an intermediate court, ought to have considered the preliminary objection,
40 including its competence, even if it had come to the conclusion that it had
been abandoned as it was urged to do by the appellant’s counsel. By so
doing the apex court would be given an opportunity, in its supervisory
jurisdiction to decide whether or not its decision to discountenance or
strike it out for abandonment was correct or wrong. Doing so would have
45 been in accordance with the administrative view of Sowemimo, JSC in

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James Odunayo v. The State (1972) LPELR - 15509 (SC) at page 8 –

There must be, and there are a number of cases where it is most
desirable, especially in the case of intermediate Court of Appeal,
5 that the final Court of Appeal, which is the Supreme Court, should
have the benefit of the opinion of that court on points raised
before it, should it come up for further consideration by this Court.

Since this dictum subsequent dicta of the Supreme Court seem now to
10 have obligated the Court of Appeal, as an intermediate court, to “pronounce
on all issues” raised before it: Xtoudos Service (Nig.) Ltd. v. Taisei W.A.
Ltd (2006) WRN 46 at 37; (2006) 15 NWLR (Pt.1003) 533; Adegbuyi v.
APC & Ors (2014) LPELR – 24214 (SC) at 14 (2015) 2 NWLR (Pt. 1442)
1; Brawal Shipping (Nig.) Ltd. v. F.I. Onwadike Co. Ltd & Anor. (2000)
15 LPELR - 802 (SC (2000) 11 NWLR (Pt. 678) 387; Edem v. Canon Balls
Ltd. (2005) 6 SC (Pt. 11) 16, (2005) 12 NWLR (Pt. 938) 27; Osareren v.
FRN (2018) LPELR – 4383 (SC), etc. (2018) 10 NWLR (Pt. 1627) 221.

In Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555 this court seems to
20 have adopted a stance that once the respondent incorporated in his brief
preliminary objection and arguments thereon which brief at the hearing of
the appeal he adopted; the fact that he did not seek leave to move the
preliminary objection by adopting the arguments on it, as are contained
in his brief, will not derogate from the duty of the court to give consideration
25 to the preliminary objection on its merits, Achike, JSC spoke on this
pages 571 - 572 of the report thus –

Since the essence of a preliminary objection is to bring the

objection to the appellant’s notice before the appeal takes off,
30 once such notice of objection is incorporated in the respondent’s
brief the appellant cannot be heard to deny being aware of the
notice merely because it did not strictly conform with the specific
procedural Rule of Court. That will be taking refuge under technical
rule of procedure. Suffice to say courts for a long time have shifted
35 emphasis from undue reliance on technicalities to doing substantial
justice to the parties, having regard to the circumstances of the
case. (P. 46 lines 29 - 45; P. 47 lines 1 - 26)

[9] Mortgage – Equity of Redemption – A mortgagor relying on the equity

40 to redeem must pay his debt in full before he can recover the
mortgaged property.

It is the law that a mortgagor coming into equity to redeem must do

equity and pay the principal interest and cost before he can recover the
45 property which at law is not his. See Per Christopher Witchell Chukwuma-

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Eneh, J.S.C, in Yaro v. Arewa Construction Ltd. & Ors (2007) LPELR-
3516(SC), (2007) 17 NWLR (Pt. 1063) 333. He further strongly stated the
law thus:

5 “Relief (b) cannot be granted unless until the mortgage debt is

repaid to the last kobo; or the 2nd respondent (the mortgagee)
has consented to granting of such order. There is no such consent
here. The cases of Barclays Bank of Nig. v. Ashiru (supra) and
Bank of New South Wales v. O’Connor (supra) have held that
10 courts cannot compel mortgagee to part with his security unless
he has received his money which is the case in this matter. This
is so, even though, as general rule, the mortgagor and all persons
having an interests in the equity of redemption as the appellant
where are entitled to redeem the mortgage.”
15 (P. 35 lines 1 - 11)

[10] Mortgage – Equity of Redemption – A purchaser of mortgaged

property will be free from the equity of redemption where the power
of sale under a mortgage has arisen and the debt remained unpaid.
20
Again, there is the Notice of Sale of Immovable Property contained at
page 210 pasted at the premises of the mortgaged property, with the
Newspaper publication at page 211 of the record. This clearly shows that
the appellant was about to lose his equity of redemption and to invoke the
25 power of sale exercisable by the 1st respondent. Yet, the appellant did
nothing to redeem his property until after it was sold to the 1st respondent
that he started crying foul without any evidence to support it. The law here
is very handicapped to him and cannot come to his aid. He has nothing in
fact to do with the 1st respondent in this case. This was emphasized by
30 Per Adekeye, JSC, in Babatunde & Anor v. Bank of the North Ltd & Ors
(2011) LPELR-8249 (SC); (2011) 18 NWLR (Pt. 1279) 738, wherein he
held that:

“Before a mortgagee can pass a good title to a purchaser free

35 from the equity of redemption - the right to exercise the power of
sale under a mortgage must have arisen, the mortgage, debt
must have fallen due. Any purchaser who bought a property sold
by a legal mortgagee in exercise of his power of sale under a
mortgage upon a default in repayment of a loan by the mortgagor
40 is not a trespasser. Hence, once the precondition of notice of
sale is given to the mortgagee or his agent. preceded by a notice
of demand of repayment of money lent to the mortgagor and the
mortgagee proceeds to sell in good faith subsequent purchaser
in good faith gets a good title and a court will not intervene in the
45 sale only because the sale did not meet with the satisfaction of

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the mortgagor.”

It is clear and apparent that the property and title has passed into the
hands of the 1st respondent that the appellant is now gallivanting about for
5 legal backup. He ought to have protected his right before the sale of the
mortgaged property and not after it has gone into the hands of an innocent
purchaser for value without any notice or encumbrances, which in this
case there were none. This was similarly restated by per Adekeye J.S.C
in Babatunde & Anor v. Bank of the North Ltd & Ors (2011) LPELR-8249
10 (SC); (2011) 18 NWLR (Pt. 1279) 738, when he warned:

“The only obligation incumbent on a mortgagee in the exercise of

his power of sale is that he should act in go faith. Whether selling
under an express agreement as in this case in accordance with
15 Clause 3(b) of the Deed of Legal Mortgage made on 26/10/76 and
18/9/78 or statutory power he may generally, conduct the sale in
such manner as he may, think most conducive to his own benefit
unless the deed contains any restrictions as to the mode of
exercising the power, provided he acts bona fide and observes
20 reasonable precautions to obtain not the “best price” but “a proper
price”. Undervalue alone is not enough to vitiate the exercise of a
mortgagee’s power of sale, it must be shown that the sale was
made at a fraudulent or gross undervalue. A.C.B. Ltd. v. Ihekwoaba
(2003) 16 NWLR (Pt. 846) pg. 249, Ekaeteh v. Nigeria Housing
25 Development Society Ltd (1973) 6 SC 183; Rafukka v. Kurfi (1996)
6 NWLR (Pt. 453) pg. 235.”
(P. 35 lines 13 - 34; P. 36 lines 21 - 42)

[11] Mortgage – Power of Sale – An allegation of fraud will not vitiate a

30 mortgagee’s power of sale except where it is shown that the sale was
done fraudulently or the property was grossly undervalued.

The 2nd respondent’s power of sale having arisen the appellant can no
longer have the equity of redemption especially after the property has
35 been sold off to a 3rd party without collusion nor fraud. In fact, the 2nd
respondent is not a trustee or the appellant in respect of the power of sale
once that power has arisen and become exercisable. Thus, the allegation
of fraud or collusion will always not favour the complainant. This was
again observed by his Lordship. Adekeye, JSC in Babatunde & Anor v.
40 Bank of the North Ltd. & Ors (2011) LPELR-8249 (SC); (2011) 18 NWLR
(Pt. 1279) 438, thus:

“... Complaint of undervalue alone is not enough to vitiate the

exercise of a mortgagee’s power of sale. It must be shown that
45 the sale was made at a fraudulent or gross undervalue. If a

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mortgagee exercises his power of sale bona fide for the purpose
of realizing his debt and without collusion with the purchaser, the
court will not interfere even though the sale be very disadvantageous
to the mortgagor, unless the price is so low as in itself to be
5 evidence of fraud. The Court will always be on the lookout that
mortgagee acts bona fide and observes reasonable precautions
to obtain not the best price but a proper price. A.C.B. Ltd v.
Ihekwoaba (2003) 16 NWLR (Pt. 846) pg. 249. Ekaeteh v. Nigeria
Housing Development Society Ltd. (1973) 6 S.C. 183; Rafukko
10 v. Kurfi (1996) 6 NWLR (Pt. 453) 235.”

As to whether the non-compliance to the Auctioneers Law and the Land

Use Act vitiated the sale to the 1st respondent, the law is settled on this.
Moreover, the circumstances playing out in this case cannot by any stretch
15 of imagination favour the appellant. The appellant was not caught unawares
by the sale of his property after he could not redeem same. There were
correspondences and notices which he took for granted and to his
disadvantage. In what way can he say he was unfairly treated? He who
comes to equity must do equity. Having not paid and settled his debt, and
20 with all the entreaties and caresses of the 2nd respondent on him, how
was he shut out in the whole game and scenario? Although the sale was
effected 2 days after the 7 days’ notice, no injustice was wrought on him.
Thus except the sale is tainted with fraud and collusion, which is absent
herein, irregularity in an auction sale contrary to the provision of the
25 Auctioneers Law and Land Use Act cannot vitiate the sale. See Okonkwo
v. CCB. (Nig). PIc (2003) 8 NWLR (Pt. 822) 347; A.C. B Nig. Ltd v.
Ihekwoaba & Ors (2003) 16 NWLR (Pt. 846) at 249; Ibiyeye v. Fojule
(2006) 3 NWLR (Pt. 968) at 640. The lower court was therefore right to set
aside the judgment of the trial court since the respondent had validly
30 acquired bona fide title to the auctioned property without notice of any
fraud or collusion and to grant the relief sought by the respondents
especially the 1st respondent.
(P. 35 lines 36 - 45; P. 36 lines 1 - 10; P. 39 lines 26 - 44)

35 [12] Mortgage – Governor’s Consent – Alteration of a right of occupancy

without the Governor’s consent is prohibited but does not vitiate any
agreement between parties to alienate land before the Governor’s
consent.

40 Moreover, it is clear that the legal mortgage had been created between
the appellant and the 2nd respondent over the property and that the auction
sale was conducted which passed the title of the property to the 1 st
respondent as bona fide, purchaser for value without notice, can then
lack of consent or absence of it vitiate and invalidate the transaction?
45 This caused his Lordship. Per Anthony Ikechukwu Iguh, J.S.C in

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Awojugbagbe Light Industries Ltd. v. Chinukwe & Anor. (1995) LPELR-

650 (SC); (1995) 4 NWLR (Pt. 390) 379, to distil and clarify the matter
thus:
“I am therefore of the firm view that section 22(i) of the Land Use
5 Act prohibits the alteration of a right of occupancy without the
consent of the governor first had and obtained but does not prohibit
agreement to alienate or in respect of terms and conditions for
the purpose of effecting such alienation if and when the governor
gives his consent to the transaction in issue.”
10 (P. 39 lines 10 - 24)

[13] Mortgage – Right of Sale – The Auctioneer Law requiring 7 days’

notice is meant to ensure adequate notice to the public or the
purchaser and non-compliance is only remediable in damages to
15 the mortgagor and cannot vitiate a valid sale to a purchaser who had
no knowledge of the irregularity.

The right and privilege here is not to the Mortgagor or the appellant in the
instant appeal but to the purchasers or the public to have adequate time
20 to purchase the mortgaged property. The mortgagor herein (the appellant)
by the records and evidence had sufficient and adequate notice of the
auction sale, prior offer at N4m, even with extension of time but did not
utilize it. By the dictum of Uwaifo, JSC in Okonkwo v. Cooperative &
Commerce Bank (Nig.) PIc & Ors (2003) LPELR-2484 (SC); (2003) 8
25 NWLR (Pt. 822) 347, the auction sale was valid despite the non-compliance
with the Auctioneers Law or section 44 of the Land Use Act. It is an
irregularity remediable to the mortgagor/appellant in damages. Per Uwaifo,
JSC in Okonkwo v. Cooperative & Commerce Bank (Nig) PIc Ors (supra)
gave the rationale and intent behind the non­compliance with the
30 Auctioneers Law or section 44 of the Land Use Act. Furthermore, this will
go contrary to the provision in section 21(1) of the Conveyancing Act.
1988. Per Ogundare, JSC in A.C.B. Ltd & Ors v. lhekwoaba & Ors (2003)
LPELR 203(SC), (2003) 16 NWLR (Pt. 846) 249 expounded it thus:

35 “By virtue of section 21(1) of the Conveyancing Act 1881 (England)

a statute of general application applicable in Imo State at all time
relevant to this case, his title to the property cannot be defeated
by the irregularity in the auction sale of 3/6/87. Section 21 (1)
provides: “Where a conveyance is made in professed exercise of
40 the power of sale conferred by this Act the title of the purchaser
shall not be impeached on the ground that no case has arisen to
authorize the sale, of that due notice was not given or that the
power was otherwise improperly or irregularly exercised, but any
person damnified by an unauthorized or improper or irregular
45 exercise of the power shall have his remedy in damages against

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the person exercising the powers.” From the findings of the learned
trial Judge the 3rd appellant is obviously a bona fide purchaser for
value without notice of the irregularity of non-compliance of section
19 by the 2nd appellant. As the property in question has been duly
5 granted to the 3rd appellant following the auction sale and in
accordance with the provisions of the Land Use Act his title to
the property remains valid. See Sanusi v. Daniel (1956) SCNL
288 at 291; (1956) 1 NSCC 85 at 88; (1959) 1 FSC 93 at 95
where Jibowu Ag. FCJ as he then was, said: “The appellant’s
10 complaint is against an irregular exercise of the power of sale on
the ground that there was a contravention of section 19(1) of the
Sales by Auction Ordinance. It seems to me that the title of the
2nd respondent cannot be impeached since the property was
conveyed to him, and that the appellant’s remedy is in damages
15 against the 1st respondent as provided by section 21 (2) of the
Conveyancing Act. 1881.” Both the Supreme Court of Nigeria and
the West African Court of Appeal came to the same conclusion
in Momoda Raji v. M. Williams & Ors. 16 NLR 149 above referred
to, and with the views expressed in the case by their Lordships I
20 respectfully agree. See also Andrew N. Okonkwo v. Co-operative
& Commerce Bank Nig. Plc & Ors. SC 58 1998 delivered on 28/
2/2003, Report in (2003) 8 NWLR (Pt.822) 347) per Uwaifo, JSC:
(P. 40 lines 15 - 45; P. 41 lines 1 - 14)

25 [14] Mortgage – Power of Sale – Sale of mortgaged property at gross

undervalue is invalid and the onus to prove undervalue lies with the
mortgagor who must also establish fraud; mortgagee can disprove
the allegation by showing that he sought and obtained expert advice
on the true value of the property.
30
Per NWEZE, JSC:

As my Lord indicated in the leading judgment. compliant of undervalue

alone is not enough to vitiate the exercise of mortgagee’s power of sale,
35 citing Babatunde and Anor v. Bank of the North Ltd. & Ord. (2011) LPELR
- 8249 (SC), (2011) 18 NWLR (Pt.1279) 738. This is true.

In the Anglo-Nigerian Law of Mortgages, the requirement of proof of sale

of mortgaged property at an under value has, always, elicited insightful
40 responses from scholars and illustrative decisions from the superior courts.
See for example. Cootes on Mortgages, Vol. 2, 9th edition, page 927;
Fisher and Lightwood. The Law of Mortgages, (London: Sweet and Maxwell.
nd) Chapters 21 and 22; Skyes. The Law of Securities. (5th ed. 1993); P.
Butt, “The Mortgagee’s Duty of Sale.” in (1979) 53 ALJ 172; A. Berg,
45 “Duties of a Mortagee and a Receiver.” in (1993) JBL 213, cited in O.G.

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Amokaye “Duty of Mortgagee Exercising Power of Sale.” in (2003) Vol.

22 JPPL 96; I. O. Smith, Nigerian Law of Secured Credit (Lagos Ecowatch
Publications (Nig.) Ltd. 2001) 80-83.

5 Others include: E. Essien, Law of Credit and Security in Nigeria (Uyo:

Golden Educational publishers. 2000) 234; Warner v. Jacod (1992) 20
Ch, D. 220; Kennedy v. De Trafford (1987) AC 180, 185; Eka Ete v. NHDS
Ltd. (1973) 6 SC 183, 198; ACB Ltd. v. Ihekwoaba (2003) 16 NWLR (Pt.
846) 249, 269; ldowi v. Jaiyeola (1970) 1 ALR (Comm) 289; Taiwo v.
10 Adegboro (1997) 11 NWLR (Pt. 528) 224; Viatonu v. Odutayo (1950) 19
NLR 119, Temco Engineering and Co. Ltd v. Savannah Bank of Nigeria
Ltd (1995) 5 NWLR (Pt. 397) 607; W.A.B. Ltd. v. Savannah Ventures Ltd.
(2002) 10 NWLR (Pt. 775) 401, 432, 434.

15 The learned and erudite author, Professor I. O. Smith, SAN in his most
invaluable work, Nigerian Law of Secured Credit (supra) at page 81, dealt
with this issue with accustomed and admirable clarity of thought and
presentation. Listen to the distinguished and prolific author:

20 A sale by the mortgagee at an under value renders the sale invalid.

To establish sale at an under value, the mortgagor must prove
either under value coupled with impropriety or vice, or under value
that is gross and disadvantageous as to raise a presumptuous of
fraud (citing Idowu v. Jaiyeola (supra); Taiwo v. Adegboru (supra),
25 Once evidence is led by the mortgagor in this way, the onus is on
the mortgagee to show that he took reasonable precaution to
obtain the best price reasonably obtainable at the time of sale,
(citing Viatonu v. Oduntayo (supra). This onus may be discharged
by showing that the mortgagee sought and obtained independent
30 expert advice not only to ascertain the value of the property at the
time of the sale but also to decide on the best method of sale,
(Italics supplied emphasis)

I entertain no doubt that this opinion, correctly captures the law on this
35 point, both in England and Nigeria, Warner v. Jacob (supra); Eka Ete v.
NHDS Ltd. (supra); ACB Ltd. v. Ihekwoaba (supra). Indeed, in the latter
case (ACB Ltd. v. Ihekwoaba (supra). Ogundare, JSC approvingly,
endorsed the proposition in Eka Ete v. NHDS Ltd. (supra) at 198 that:

40
“…. Under value alone is not enough to vitiate the exercise of a
mortgagee’s power of sale. It must be shown that the sale was
made at a fraudulent or gross under value. Indeed, it is well
established that if a mortgagee exercises his power of sale bona
45 fide for the purpose of realizing his debt and without collusion

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with the purchaser, the court will not interfere even though the
sale be disadvantageous, unless the price is so low as in itself to
be evidence of fraud. (Italics supplied for emphasis).
(P. 43 lines 15 - 45; 44 lines 1 - 25)
5
[15] Supreme Court – Decision – The Supreme Court can only depart
from its previous decision where it is shown that the earlier decision
is erroneous in law leading to a miscarriage of Justice.

10 The call to depart from the decision in Ibiyeye v. Fojule (2006) 2 SCNJ 1,
(2006) 3 NWLR (Pt. 968) 640 will spell anarchy in judicial precedents and
the world of justice. It must be noted that all the decisions and case laws
in respect of sections 19, 20 and 21 of the Auctioneers Law concerning 7
days’ notice and section 44 of the Land Use Act are congruently congruous
15 and, mutually supportive and strongly advocate substantial justice. See
Okonkwo v. CCB. (Nig.) Plc (2003) 8 NWLR (Pt. 822) 347; A.C.B. Ltd v.
Ihekwoaba & Ors (2003) 16 NWLR (Pt.846) at 249; Ibiyeye v. Fajule
(2006) 3 NWLR (Pt. 968) at 640. Since there is no conflict there in them,
‘the call for departure cannot be made: The Supreme Court may depart
20 from its previous decisions where it is shown or demonstrated that the
earlier decisions are either erroneous in law; reached per incuriam or
occasioning a miscarriage of justice. See Per Bage, JSC in Shema & Ors
v. FRN (2018) LPELR-43723 (SC), (2018) 9 NWLR (Pt. 1624) 337.
(P. 40 lines 1 - 13)
25
[16] Right of Occupancy – Revocation – A Governor can only revoke the
right of occupancy of a land owner where the land is meant for public
purpose after given notice to the holder proposing the revocation
and the public purpose clearly spelt out in the notice and an
30 opportunity to be heard by the holder.

Per EKO, J.S.C in Orianzi v. A.G. Rivers State & Ors (2017) LPELR-
41137 (SC); (2017) 6 NWLR (Pt.1561) 224, laid down the conditions for a
valid revocation of Right of Occupancy infra:
35
The 1st respondent (as the 1st defendant) neither plead nor proved
the facts establishing the prerequisites for proper revocation of
the plaintiff/appellant’s title under sections 28 and 44 of the Land
Use Act. The relevant provisions of sections 28 and 44 of the
40 Land Use Act are herein below reproduced: that is - 28(1) It shall
be lawful for the governor to revoke a right of Occupancy for
overriding public interest. (1) Overriding public interest in, the case,
of a Statutory Right of Occupancy means - (a) - (b) the requirement
of the land by government of the State or by a Local Government
45 in the State, or the requirement of the land by government of the

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federation for public purposes. (c) - (14) The governor shall revoke
a right of occupancy in the event of the issue of a notice by or
behalf of president if such notice declares such land to be required
by the government for public purposes. (5) - (6). The revocation of
5 a right of occupancy shall be significant under the hand of a public
officers duly authorized in that behalf by the governor and notice
thereof shall given to the holder. 44. Any notice required by this
Act to be served on any person shall be effectively served on him
- (a) by delivering it to the person on whom is to be served: or (b)
10 by leaving it at the usual or last known place of abode of that
person: or (c) by sending it in a prepaid registered letter addressed
to that person his usual or last known place of abode ... The
issuance of the mandatory or statutory notices under section 28
and 44 of the Land Use Act being conditions precedent for proper
15 revocation of a Right of Occupancy in or over a landed property,
and the revocation of the Right of Occupancy are matters of fact,
which must be proved by the party asserting the revocation of a
right of occupancy. The 1st respondent herein, as the 1st defendant
at the trial, in his amended statement of defence, acknowledged
20 that the plaintiff/appellant had a right of occupancy over the
disputed property who was revoked. This fact is pleaded in
paragraph 6 of his amended statement of defence, copied at pages
46 - 49 of the records, thus - 6. Paragraph 15 of the statement of
claim is denied and in furtherance (sic) the 1st defendant shall
25 contend at the trial that, the plaintiff’s right of occupancy having
been revoked by the Military Governor. it was up to the plaintiff to
make claims for compensation … Revocation of the right of
occupancy or title to landed property is not just a mere executive
or administrative act that can be done in secret or in any
30 surreptitious manner and later conveyed in official government
gazette. The title holder is not only entitled to the notice of the
proposed revocation with the public purpose for the revocation
clearly spelt out therein, he is also entitled to be heard on the
proposed revocation of his title. My firm view, on this is that reading
35 sections 28 and 44 of the Land Use Act together with section
36(1) of the Constitution, the governor when it behoves him to
revoke any right of occupancy in or over any landed property has
a duty to act quasi-judicially and in transparent manner”. The
revocation of a right of occupancy shall be signified under the
40 hand of a public officer duly authorized in that behalf by the governor
and notice thereof shall be given to the holder …. According,
whoever relies on the fact of the revocation of the plaintiff/
appellant’s right of occupancy must not only plead that fact of
the revocation but must also lead evidence thereof to establish
45 that the purported revocation of the right of occupancy of the

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plaintiff/appellant was valid in law and existent in fact.

(P. 37 lines 42 - 44; P. 38 lines 1 - 45; P. 39 lines 1 - 5)

[17] Interpretation – Statute – Any interpretation that defeats the intention

5 of the lawmaker will be abandoned in favour of that which would
promote the objective of the law.

It is now firmly settled that, in the interpretation of a statute where its

interpretation will result in defeating its object, the court would not lend its
10 weight to such an interpretation. The language of the statute must not be
stretched to defeat the aim of the statute. In other words, the interpretation
which appears, to defeat, the intention of the legislature should be bye-
passed in favour of that which would further the object of the Act. See Per
Ogbuagu, J.S.C Onochie & Ors. v. Odogwu & Ors. (2006) LPELR-
15 2689(SC), (2006) 6 NWLR (Pt. 975) 65. This is the interpretation this
honourable court chose in Okonkwo v. C.C.B (Nig.) PIc (2003) 8 NWLR
(Pt. 822) 347; A.C.B. Ltd. v. Ihekwoubu & Ors. (2003) 16 NWLR (Pt.846)
at 249; Ibiyeye v. Fojule (2006) 3 NWLR (Pt. 968) at 540, in deference
sections 19, 20 and 21 of the Auctioneers Law and 44 of the Land Use
20 Act since they will be antithetical to justice and work injustice to a bona
fide purchaser for value without notice.

These were further considered by Per Samson Odewingie Uwaifo, JSC in

Okonkwo v. Cooperative & Commerce Bank (Nig.) Plc & Ors (supra),
25 when he justified it thus:

“The only serious issues to be considered in this appeal are: (1)

whether section 19 of the Auctioneers Law. Cap. 12. Laws, of
Eastern Nigeria. 1961 (applicable in Abia State) was waived by
30 the appellant by operation of clause B of exhibit B: (2) whether
such a statutory provision can be waived: (3) what is the effect of
non-compliance with the provision. The provision of section 19
reads thus: “No sale by auction of any land shall take place until
after at least seven days’ public notice thereof made at the principal
35 town of the district in which the land is situated and also at the
place of the intended sale. The notice shall be made not only by
printed or written documents, but also by beat of drum or such
other method intelligible to uneducated persons as may be
prescribed as the divisional officer of the district where such sale
40 is to take place may direct, and shall state the name and place
of residence of the seller.” Although some aspects of this provision
have become anachronistic owing to socio-political changes, it
cannot be denied that the purpose of the provision is for the
mortgagee to give adequate notice to the public of the proposed
45 sale. It is not a notice intended to be given to the mortgagor. This

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is to ensure that a true public auction, where everyone interested

in the property may have the opportunity to bid for it, is conducted
for a fair deal, devoid of unconscionable bargain through connivance
or collusion. This is not a notice which can be waived by the
5 mortgagor. Actually, it does not lie with him to do so as it is not
meant for him. The court below was therefore in error to have held
that the waiver contained in clause 8 of exhibit B extended to
section 19. There is absolutely rib connection between the two.
The former is a waiver of a private right of the mortgagor. The
10 latter is to ensure that the auction to borrow the words of Lord
Mansfield in Bexwell v. Christie (1776) 1. Compo 395 at 396; 98
ER 1150, is not “a fraud upon the sale and upon the public.”

Per Niki Jobi, J.S.C in the above case also justified the rationale behind
15 the interpretation given above thus:

“The law of sale by auction or auction sale protects the purchaser

and that is the basis of the principle of law that a mortgagors right
essentially is in damages. The law has an important qualification
20 and it is that the purchaser must have bought the mortgaged
property in good faith, that is bona fide and not in bad faith, that
is, mala fide. The sympathies of the law on the purchaser will
vanish the moment the court comes to the conclusion that the
purchaser bought the property in bad faith. Bad faith on the part
25 of the purchaser is a matter of fact to be deduced from the totality
of the purchasing or buying conduct of the purchaser. Bad faith
taints or better still, destroys a mortgage sale and therefore the
property in the sale. While I agree that the principle of law of
caveat emptor will apply in respect of sale of mortgage property
30 to a bona fide purchaser, the purchaser has a legal duty to prove
that he bought the property bona fide and without any element of
bad faith. Where the court finds evidence of bad faith then, it is
entitled to read mala fide into the transaction that will be against
the purchaser. There is yet another aspect. While I entirely agree
35 with the position of the law that irregularities arising from the sale
by way of lack of giving statutory notice to the plaintiff and sale of
the property at a lower price per se, may not vitiate sale of a
mortgaged property. I think, and I feel very strongly that in order
to enable the purchaser have the property for keeps, property
40 must pass in the sale from the mortgagee to the purchaser. In
other words, where in law property does not pass to the purchaser
what he has bought is a nullity ab initio. In such a situation or
circumstance, a purchaser cannot be heard to rest his defence, on
good faith on his pan. The defence of good faith in my humble opinion,
45 will arise only when property can in law pass to the purchaser”
(P. 41 lines 16 - 45; P. 42 lines 1 - 41)

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Abba Aji, JSC

[18] Litigation – Leave to File out of Time – The grant of leave to file a
process or motion out of time is not a grant of the reliefs sought in
the process or application.

5 It follows therefore that the fact that the application to file the 1st respondent’s
notice was discretionally granted the appellant at the lower court does
not arm him to seek for another mile’s walk from the lower court. This is
not always the case in law. This was reiterated by this court in Buhari v.
INEC (2008) 19 NWLR (Pt.1120) 246 at 382, E-H, wherein it was decided
10 amongst others that granting leave to file a process or motion out of time
does not translate to granting the reliefs sought.
(P. 29 lines 10 - 16)

ABBA AJI, JSC (Delivering the leading Judgment): The appellant as plaintiff
15 at the trial court, sued the respondents (the then defendants) sometime in 1994
and sought for the following declaratory and injunctive reliefs as follows:

1. A declaration that the purported sale of the plaintiffs property

situate at No. 3 Kachia Road Shopping Central Kaduna South
20 Kaduna, covered by Certificate of Occupancy No. 6500 carried
out sometimes in June 1992 without the knowledge or consent of
the plaintiff is unlawful, null and void, illegal contrary to existing
Federal Legislations and contrary to the Deed of Legal Mortgage
in that;
25
(a) The exercise of the power of sale is conditional upon
compliance with mandatory processes of the Land Use
Act.

30 (b) No consent was obtained until the 3rd of May, 1994 after
the plaintiff had liquidated the loan account which the
property was tied .

(c) Even the consent obtained had been reversed by the

35 Military Administrator of Kaduna State.

(d) Consequently at the time of the said transfer, the 1st

defendant no longer had any right or title over the said
property to transfer to the 2nd defendant.
40
2. A declaration that the said exercise of power of sale was vitiated
by overt acts of bad faith and or fraud in that:

(a) The property was not sold for its market price.
45

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(b) No proper valuation was carried out so as to ascertain

the true worth of the property.

(c) No licensed auctioneer was appointed as required under

5 the Auctioneers Law Cap (sic) to carry out the auction.

3. A declaration that the Deed of Legal mortgage was void on account

of the fact that at the inception of the transaction, there was no
deposit of the Certificate of Occupancy.
10
4. A declaration that with the payment of the principal loan in the
sum N1.8m vide a cheque of N3.6m on 4/2/94 the property
purportedly mortgaged stood released from the terms of the
mortgage deed and the balance which consists on only interest
15 elements can only be recovered through an action instituted in
court.

5. On account of declarations in 1, 2, 3 and 4 herein, an aside the

purported sale of the afore-described property.
20
6. A declaration that the 2nd defendant based on the foregoing and
on the maxim Nemo dat quad non habet did not and cannot
acquire any title to the plaintiffs aforesaid property on the ground
that steps leading, to the purported sale was vitiated by the
25 defendants breaches of statutory pre-conditions and the Deed of
Legal Mortgage covering the property.

7. A perpetual injunction restraining the Administrator of Kaduna

State from cancelling or purporting to cancel the plaintiffs certificate
30 of occupancy No. 6500 dated the 21st day of September 1978 or
granting or purporting to grant a right of occupancy in the name of
the 2nd defendant or in the name of any other person so long as
the basis of the purported transfer of title from 1st defendant to the
2nd defendant.
35
8. An order of injunction restraining the 4th respondent acting in the
name of the Administrator of Kaduna State from granting the 2nd
respondent or purporting to grant him a right of occupancy over
the said property and if already granted, an order setting aside
40 the said grant.

9. An order of injunction restraining the defendants particularly the

2nd defendant from taking possession of the afore described
property or from using any court or tribunal to secure the said
45 possession on ground that the 2nd defendant purported right is

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null and void in as much as it is based on any transaction between

him and the 1st defendant or on the Deed of Legal Mortgage.

The 1st and 2nd respondents in their joint statement of defence denied the claims
5 and counter-claimed as follows:

a. The sum of N3,734,180.76k being outstanding balance in the

plaintiff’s account with the 1st defendant as at 27/9/96.

10 b. Compound interest at the rate of 21% per annum from 27/9/96 to

date of judgment and thereafter, interest to accrue at the rate of
10% until liquidation of the entire judgment debt.

c. An order directing the plaintiff to return forthwith the original copy

15 of the Certificate of Occupancy No. 6500 to the 1st defendant.

The facts are that the appellant at the trial court, who was a customer of the then
Savannah Bank (The 2nd respondent herein) was granted credit facilities of N310,000
and tendered as security a C of O covering a landed property situate at No.3,
20 Kachia Road, Shopping complex, Kaduna South, Kaduna. Being unable to liquidate
the loan, the Bank advertised in a National Daily newspaper “The Reporter” the
sale of the mortgaged property by public auction fixed for 5/6/1992 and same was
auctioned to the 1st respondent for N3.7 Million after 2 days of the auction notice.
After the auction sale, the 1st respondent applied for consent of assignment of title
25 which was granted to him. However, in 1994, the appellant petitioned to the Military
Administrator of Kaduna State, in respect of the auction sale to the 1st respondent,
who directed the 3rd respondent to postpone further action on the perfection of the
assignment pending resolution. At the trial, the appellant called 2 witnesses to
prove his claim while the 1st respondent called 2 witnesses while the 3rd and 4th
30 respondents called a witness. The appellant got judgment at the trial court which
was appealed by the 1st respondent. The lower Court of Appeal allowed the appeal
and set aside the judgment of the trial court, hence the appeal to this court by the
appellant.

35 By a notice of appeal dated and filed on 5/2/2007, the appellant formulated 10

grounds of appeal for the determination of this appeal as contained at pages 550-
559 with their particulars. To argue the appeal, the appellant vide his learned
senior counsel filed the appellant’s brief dated 25/9/2012 and filed on 26/9/2012,
settled by I. B. Daudu, SAN, wherein at pages 15-16 of the brief, he formulated 5
40 issues for the determination of the appeal thus:

1. Whether the Court of Appeal was not in error when it failed to

consider and adjudicate on the appellant’s preliminary objection
against the 1st respondent’s ground of appeal in the court below
45 and if resolved in the appellant’s favour, whether the preliminary

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objection has merit? (Ground 2).

2. Whether the court below was not in error when it held that the 1st
respondent’s notice contending that the decision of the High Court
5 be affirmed on other grounds was not properly before it and by so
holding, whether the 1st respondent had not been denied of proper
hearing and if resolved in the appellant’s favour, whether there
was merit in the respondents notice? (Grounds 1, 7, 8 & 9).

10 3. Whether contrary to the decision of the court below, the plaintiff’s

equity of redemption was available and properly utilized since the
mortgagor’s title had not been extinguished, or destroyed by the
purported auction of the mortgaged property to the 1st respondent
herein? (Grounds 5 & 6).
15
4. Whether the court below was not in error when it held that the
failure, by the unpaid mortgagee to comply with all the conditions
precedent set out in both the Auctioneers Law and the Land Use
Act before purporting to sell off the disputed property did not vitiate
20 the entire exercise? (Grounds 3 & 4).

5. Whether the Court of Appeal was not in error when it failed to

dismiss the appellants appeal before it for lacking in merit?
(Ground 10).
25
On the other hand, the 1st respondent separately filed his brief of argument dated,
18/12/2013 and filed on 20/12/2013, settled by Yunus Ustaz Usman, SAN wherein
he formulated at page 7 of the brief, 3 issues for the determination of the appeal as
follows:
30 1. Whether the Court of Appeal was justified in declining to consider
the merit of the appellant’s preliminary objection to the competence
of the appeal having regard to the fact that the appellant neither
filed a formal separate notice of the preliminary objection nor
sought for the leave of the Court to orally argue same before the
35 hearing of the appeal? (Ground 2).

2. Whether the Court of Appeal gave adequate consideration to the

1st respondent’s notice to contend, containing two grounds in
spite of the opinion of the court that the said notice was defective?
40 (Grounds 1, 7, 8 and 9)

3. Whether the Court of Appeal was justified in coming to the

conclusion that the auction sale of the appellant mortgaged
property wherein the 1st respondent emerged as the highest bidder
45 was valid and proper in the light of the available evidence and the

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relevant provisions of the auctioneers Laws and the Land Use

Act? (Grounds 3, 4, 5, 6 and 10).

The 2nd respondent’s learned counsel also differently filed its brief of argument
5 dated 19/12/2013 and filed on 20/12/2013, settled by O.I. Habeeb, Esq. wherein
he formulated at page 9 of the brief, 4 issues for the determination of the appeal
thus:
1. Whether the decision of the Court of Appeal to regard the
appellant’s preliminary objection incorporated in the appellant’s
10 brief of argument having been abandoned for failure to file a formal
notice or seek the prior leave of the court to argue same at the
hearing of the appeal is justified? (Ground 2).

2. Whether the 1st respondent’s notice to contend containing two

15 grounds was not given adequate consideration by the court below
in spite of the stance of the court that same was not properly
before it? (Grounds 1, 7, 8 and 9)

3. Whether the decision of the court below to the effect that the
20 equity of redemption did not inure in favour of the appellant is
correct in the light of the available evidence? (Grounds 5 and 6).

4. Whether the decision of the court below to the effect that the
auction sale of the appellants mortgaged property was valid in
25 the light of the totality of evidence available and the provisions of
the extant laws such as the Auctioneers Laws and the Land Use
Act is justified? (Grounds 3, 4 and 10).

The 3rd and 4th respondents jointly filed their amended brief of argument dated 8/
30 12/2017 and deemed properly filed on 12/12/2017, settled by Abdullahi Yahya,
Esq, who at page 5 of his brief formulated 3 issues for the determination of the
appeal thus:

1. Whether the decision of the court below to regard the appellant’s

35 notice of preliminary objection which was argued in his brief of
argument as abandoned for failure to seek leave of the said court
to move the preliminary objection before the hearing of the appeal
was justified in law? (Ground 2)

40 2. W hether the court below adequately considered the 1 st

respondent/appellant’s notice to contend in its judgment.
(Grounds 1, 7, 8 and 9)

3. Whether the court below was right in its decision that the auction
45 sale of the mortgaged property by the 2nd respondent as unpaid

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mortgagee, to the 1st respondent was valid and proper, and the
appellant had lost his equity of redemption in the light of the
evidence led and the provisions of the extant laws. (Grounds 3, 4,
5, 6 and 10)
5
Consequently, the appellant’s learned senior counsel filed a reply brief dated 25/7/
2016 and filed on 26/7/2016 to the 1st and 2nd respondents’ briefs; and another
reply brief dated 28/9/2018 and deemed properly filed on 29/1/2019 to the 3rd and
4th respondents’ joint brief.
10
At the hearing of the appeal on 5/2/2019 before this honourable court, all parties
concerned adopted their respective briefs as argued and asked this honourable
court to resolve the issues in their favour.

15 Having read the record and the evidence in this appeal and for the
comprehensiveness and aptness of considering the issues as formulated by all
parties, the issues in this appeal, shall be considered together as captured by the
3rd and 4th respondents’ learned counsel in the 3 issues he has formulated for the
consideration of this appeal. The appellant’s issues 3, 4 and 5 shall be considered
20 under issue 3 under consideration.

Briefs of argument filed by parties to an appeal are to assist the court in determining
with precision and in a concise manner the real issues in controversy between the
parties and to marshall their arguments and submissions in a way that makes it
25 easy for the court to discharge this function, whereas reply briefs are for new
issues arising from the respondent’s briefs and arguments. Thus, where there are
no new issues pumping up, a reply brief is not necessary. This therefore is impelling
me to consider the reply brief as filed by the appellant to the all the respondents’
briefs having painstakingly read them through to discover that they are but
30 rigmaroles around the same circumference of all the respondents’ arguments
without fishing out new issues or points of law, The appellant’s learned senior,
counsel’s 19-page reply brief dated 25/7/2016 and filed on 26/7/2016 to the 1st and
2nd respondents’ briefs: and 15-page reply brief, dated 28/9/2018 and deemed
properly filed on 29/1/2019 to the 3rd and 4th respondents’ joint brief are unnecessarily
35 repetitive and verbose which is not the purpose of a reply brief.

A reply brief is necessary and usually filed when an issue of law or argument
raised in the respondent’s brief calls for a reply. Where a reply brief is necessary,
it should be limited to answering new points arising from the respondent’s brief.
40 Although, an appellant’s reply brief is not mandatory, where a respondent’s brief
raises issues or points of law not covered in the appellant’s brief, an appellant
ought to file a reply brief. It is not proper to use a reply brief to extend the scope of
the appellant’s brief or raise issues not dealt with in the respondent’s brief. A reply
brief is only necessary when an issue of law or argument in the respondent’s brief
45 calls for a, reply. See Per Rhodes-Vivour, JSC. Cameroon Airlines v. Otutuizu

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(2011) LPELR-827 (SC). (2011) 4 NWLR (Pt. 1238) 512. The purpose of reply brief
is to tackle new issues or argument raised in the respondents’ brief of argument
and not dealt with in the appellant’s brief of argument otherwise a reply brief would
be tantamount to a repetition of the appellant’s main brief. In other words, it should
5 not serve as a forum for reopening the appellant’s case over again, And where it is
coterminous in every respect with the appellant’s main brief, it should be
discountenanced. See per Christopher Mitchell Chukwuma-Eneh, J.S.C. in Yam
Arewa Construction Ltd. & Ors (2007) LPELR-3516 (SC), (2007) 17 NWLR (Pt.1063)
333. Thus, this appeal shall’ therefore considered discountenancing the appellants’
10 2 reply briefs.

Issue One:

Whether the decision of the court below to regard the appellant’s notice
15 of preliminary objection which was argued in his brief of argument as
abandoned for failure to seek leave of the said court to move preliminary
objection before the hearing of the appeal was justified in law? (Ground 2)

It is submitted by the learned counsel to the appellant that the appellant as the 1st
20 respondent in the court below took out preliminary objection against all the 6
grounds of appeal, argued and incorporated in his brief as opposed to formal
notice of preliminary objection, yet the court below held that failure to seek its
leave rendered it abandoned. That the court below was in error to hold that the
appellant conceded that he did not seek leave to argue it and that the procedure
25 adopted by the appellant was wrong because the appellant argued his preliminary
objection as seen at page 472. He therefore urged this court by section 22 of the
Supreme Court Act to consider, the preliminary objection and determine whether
there was proper appeal before the court below as the issue is jurisdictional as
decided in Galadima v. Tambai (2000) 1 SC 1 (2000) 11 NWLR (Pt.677) 1. He
30 prayed that this issue be resolved in his favour.

The learned senior counsel to the 1st respondent submitted that the appellant as
1st respondent in the Court of Appeal neither filed formal notice of preliminary
objection nor sought the leave of the court below to orally argue the preliminary
35 objection before the hearing of the appeal contrary to the decisions in Carew v.
Oguntokun (2011) 5 NWLR (Pt. 1240) at 405; Olagbaju v. Abass (2011) 16 NWLR
(Pt. 1274) 453 at 462. Furthermore, he submitted that the 6 grounds of appeal
filed by the 1st respondent herein as the appellant in the lower court were valid and
competent since it shows that the 1st respondent at the lower court was aware
40 and familiar with the issues involved and cannot be heard to challenge the
competence of the grounds of appeal as held in N.I.C. v. Aminu (2012) 8 NWLR
(Pt. 1302) 330 at 350; Dakolo v. Rewane-Dakolo (2011) 16 NWLR (Pt. 1271) 22 at
53. Similarly, he settled that since the grounds of the appeal can be sustained
even if some are bad, the appropriate approach is a motion on notice and not a
45 preliminary objection. He relied on Odunukwe v. Ofomata (2010) 18 NWLR (1225)

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404 at 423. He urged this issue to be resolved in the affirmative.

The learned counsel to the 2nd respondent has submitted that on 1/11/2006 when
the appeal came up for hearing, the appellant did not seek the prior leave of the
5 lower court to orally move the preliminary objection. He settled that the stance of
the lower court on the failure to seek the leave of the court to argue or move the
preliminary objection is unassailable as supported in Oforkire v. Maduike (2003) 5
NWLR (Pt. 812) 166 at 178; Olagbaju v. Abass (2011) 16 NWLR (Pt. 1274) 453 at
462. On the competence of ground of appeal, he settled that once they are
10 comprehensible and understandable, they are competent. He relied on Dakolo v.
Rewane-Dakolo (2011) 16 NWLR (Pt. 1272) 22 at 53. That the proper procedure
the appellant ought to have adopted was a motion on notice as held in NNPC v.
Famfa Oil Ltd. (2012) 17 NWLR (Pt.1328) 148 at 185. He urged the resolution of
this issue in the affirmative.
15
The learned counsel to the 3rd and 4th respondents maintained that while it is
conceded that on 1/11/2006 the appellant herein adopted his argument in respect
of his preliminary objection at the court below, nowhere did he apply for or was
granted leave to move preliminary objection. Thus, that the decision of the lower
20 court was in consonance with the decisions in Registered Trustees of The Airline
Operators of Nigeria v. Nigerian Airspace Management Agency (2014) 8 NWLR
(Pt.1408) 1 at 34; Osuji Okoro Oforkire & Anor v. John Maduike & Ors (2003) 5
NWLR (Pt.812) 166 at 178. He argued that the court below was right in its decision
and urged this issue to be resolved in their favour.
25
By the record of the proceedings at pages 471-472, it is clear and indisputable
that the following transpired at the lower Court of Appeal particularly in the 2nd
paragraph of page 472:

30 “Daudu: Pursuant to the leave granted by this court on 26/1/06 the 1st
respondent filed his brief of argument on the 7/2/06. We humbly adopt the
said brief. We have raised preliminary objection to the ground of appeal at
pages 12 and 12 of the respondents (sic) brief and we adopt the argument
and urged the court to strike out the ground of appeal.”
35
It is without doubt that the appellant herein argued and incorporated his preliminary
objection in his brief of argument and same was clearly adopted in the argument
and “urged the court to strike out the ground of appeal.” The procedure of
incorporating and arguing a preliminary objection in the respondent’s brief of
40 argument is now long settled, which is what the appellant’s learned counsel herein
had done at the lower court.

The simple issue nevertheless was whether he sought and obtained the leave of
the lower court before the preliminary objection was moved and argued? The record
45 is bereft of this and the learned counsel to all the respondents have seriously

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made this their issue. The lower Court of Appeal rightly also observed that the
appellant herein did not seek nor obtain the leave of the lower court to argue, and
move its preliminary objection which caused and restrained it from considering
the appellant’s notice of appeal or grounds of appeal to be incompetent. The
5 competence of the preliminary objection was thoroughly considered by the lower
Court of Appeal at pages 490-496. The synopsis of what transpired is abundantly
captured at page 496 of the last paragraph of the record of appeal. On 1/11/2006,
when the appeal ripened for hearing, the appellant (the then 1st respondent) who
incorporated the preliminary objection in his respondent’s brief did not apply or
10 seek the court’s leave to move and argue same. It is on record at page 471-472
that the appellant at the lower court argued the preliminary objection but the leave
of the lower court was not sought. Per Kekere-Ekun in Registered Trustees of the
Airline Operators of Nig v. N.A.MA. (2014) LPELR - 22372 (SC); (2014) 8 NWLR
(Pt. 1408) 1, held that the failure of learned counsel for the respondent to seek
15 leave to move the objection at the hearing of the appeal, the objection was deemed
to have been abandoned. The effect or consequence of a respondent to an appeal
who has raised in his respondent’s brief, a preliminary objection but who failed/
neglected/refused to seek the leave of the court to move the objection before the
hearing of the substantive appeal, is that the said preliminary objection, is deemed
20 to have been abandoned and the court will ignore or discountenance it. See Per
Ogbuagu, JSC in A.G. Rivers State v. Ude & Ors (2006) LPELR-626(SC), (2006)
17 NWLR (Pt. 1008) 436.

Further, the preliminary objection was predicated on the fact that “some of the
25 grounds have no relationship to the issue under which they have been argued.”
See page 12 of the 1st respondent’s brief of paragraph 5 of page 420 of the record.
Even if it was considered, it would not have disposed of the whole appeal which is
the purpose of preliminary objection, since other grounds of the appeal would have
saved and sustained the appeal. See NUT Taraba State & ors v. Habu & Ors
30 (2018) LPELR-44057 (SC), (2018) 15 NWLR (Pt.1642) 381. In the instant appeal,
the appellant in his brief, particularly at paragraph 37 of page 20, reiterated that
“some of the grounds have no relationship to the issue under which they have
been argued.” Although he was able to chronicle the errors from ground 1 to 6, he
nonetheless concluded at page 21 paragraph 38 of the brief that “From the foregoing,
35 it is submitted that only grounds 3 and 4 are in order and by extension issue 3
formulated therefrom. Your lordships are respectfully urged to strike out the other
offending grounds and disregard arguments on issue Nos. 1 and 2 to which the
said bad grounds are inescapably linked.” It is thus true that some grounds of the
appeal would have saved the appeal from being struck out in limine. The apposite
40 step and procedure was a motion on notice and not preliminary objection. Same
scenario came up in the case of NNPC v. Famfa Oil Ltd. (2012) 5-7 MJSC, 1 at
29; (2012) 17 NWLR (Pt. 1328) 148, wherein the Supreme Court per Rhodes-
Vivour, JSC, had stated that preliminary objections are only filed against the hearing
of an appeal and not against one or more grounds of appeal. If I may add to the
45 above where as in this appeal the preliminary objection was filed against some

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grounds of appeal and there are other grounds of appeal that can sustain the
appeal, a preliminary objection was inappropriate. The respondent ought to have
filed a motion on notice since the preliminary objection if successful would not
have terminated the hearing of the appeal as there were other grounds of appeal to
5 sustain the appeal.

The preliminary objection therefore has no merit at all but manifestly frivolous.
This issue is resolved against the appellant.

10 Issue Two:

Whether the court below adequately considered the 1 st respondent/

appellant’s notice to contend in its judgment. (Grounds 1, 7, 8 and 9).

15 It is submitted by the learned counsel to the appellant that the lower court’s failure
and omission to consider the 1st respondent’s notice prejudiced the present appellant
extensively since it is trite that a court must consider all issues for determination,
otherwise it tantamounts to denial of justice as decided in Odetayo v. Bamidele
(2007) 17 NWLR (Pt.1 062) 77 at 91. Similarly, that the lower court ruled on the 1st
20 respondent’s notice before he considered it on its merit. He summarized that
what the 1st respondent filed the notice to contend for was that the mortgagee did
not carry out the sale bona fide and was riddled with fraud and collusion. He relied
on Cuckmere Brick Co. v. Mutual Finance (1971) 2 All ER at 653; Nig. Advert
Services Ltd. v. UBA PIc (1999) 8 NWLR (Pt.616) 546 0 at 557. He conceded that
25 although the lower court considered the issue of the sale of the property at a gross
undervalue price, it did not consider the arguments put forward especially exhibit
26, the valuation certificate. Also on the 2nd ground of the respondent’s notice, he
argued that the lower court did not consider the ground and all submissions made
thereunder entirely which is to the effect that the judgment of the trial court be
30 affirmed on the basis that the purported sale was a breach of a fundamental covenant
of the mortgage agreement in exhibit 1 that the sum of money claimed upon which
the property was sold was false and a misrepresentation of the indebtedness of
the 1st respondent’s debt. That the total debt portfolio as N1.8m, hence the sale of
the property was based on unproved debt. He urged this court to invoke section 22
35 of the Supreme Court Act and resolve the injustice occasioned by the failure of the
lower court to consider the notice to contend and to resolve this issue in his
favour.

The learned senior counsel to the 1st respondent responded that there was no
40 conflicting decisions of the Court of Appeal in relation to the propriety or otherwise
of notice to contend but what transpired on 21/11/2005 was whether the appellant
made out a case for grant of extension of time to fiIe the respondent’s notice.
Thus, that granting leave to file the respondent’s notice to the appellant did not
translate to granting the reliefs sought as decided in Buhari v. INEC (2008) 19
45 NWLR (Pt. 1120) 246 at 382. It is submitted that the 1st leg of the notice was dealt

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with by the lower court at pages 531-534 while the 2nd leg was tackled at pages
534-542. On the 1st leg, he argued that the evidence of DW2 who tendered exhibit
29 was relevant as he was the maker and it does not matter how it was obtained.
He cited in support Abuul v. Bensu (2003) 16 NWLR (Pt. 845) 59 at 80. Thus, that
5 the lower court considered the probative value of exhibit 29 vis-a-vis exhibit 26 to
show that exhibit 29, is preferable as supportable in Universal Trust Bank v. Awanija
Enterprises Ltd (1994) 1 NWLR (Pt. 346) 56 at 77. On the 2nd leg of the notice to
contend, he settled that the lower court considered it at pages 534-542 to show
the indebtedness of the 1st respondent by admission especially in the 2nd paragraph
10 at page 538. He therefore prayed this court to resolve this issue in the affirmative.

The submission of the learned counsel to the 2nd respondent is that the stance
taken by the appellant that the lower court gave conflicting decisions with respect
to the validity or otherwise of the respondent’s notice to contend is factually incorrect
15 in the light of what transpired in the lower court. That the consideration of the merit
of the respondent’s notice did not come up at all in the ruling of 26/1/2006, which
was for application for extension of time. He contended that the appellant’s
respondent’s notice contained 2 grounds: 1. The allegation that the property was
sold at gross undervalue price, 2. The allegation of alleged breach of fundamental
20 covenant contained in the mortgage agreement, exhibit 1 in relation to the
indebtedness of the appellant, which were adequately considered by the lower
court. He maintained that there is no basis for the complaint of the appellant that
the lower Court did not give due consideration to the grounds of the respondent’s
notice and urged that the issue be resolved in favour of the 2nd respondent.
25
The learned counsel to the 3rd and 4th respondents rejoined that by the ruling of the
court below at pages 379-395, the issues that came up for consideration in the
motion filed on 3/6/2005 was whether the appellant herein made out a case for the
grant of the prayers sought for extension of time to file respondent’s notice. He
30 also submitted that on the 2 grounds of the notice to contend, the lower court in
its judgment considered them adequately and came to the right decision that the
notice was devoid of merit. He therefore urged that this issue be resolved in the
affirmative and in favour of the 3rd and 4th respondents.

35 Having curiously and carefully read the briefs, and the records on this particular
issue, I must frown at the manner the appellant’s learned senior counsel presented
this matter before this honourable court. In truth, there are two different scenarios
involved on this issue of the appellant’s respondent’s notice at the lower court.

40 Apparently on the record, there was the consideration of the motion/application to

file the respondent’s notice out of time which is always grantable at the discretion
of the court. This application was dated 3/6/2005 contained at pages 379-390.
Although she delved and combed into the reason for filing a respondent’s notice,
it was a ruling like any other application for extension of time that reasons must
45 be manifestly given why the discretion of the court must be exercised in favour of

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the applicant for coming out of the stipulated time for filing his motion. Indeed, the
proceedings of 21/11/2005 was for a consideration of whether the appellant as 1st
respondent made out a case for the grant of extension of time to file the respondent’s
notice and had nothing to do with the merit and competence of a respondent’s
5 notice. In fact, this was the dictum of the lower court at page 388 lines 5-15 of the
record. I must wonder therefore why the appellant’s learned counsel has belaboured
the obvious at page 23 of his brief in paragraph 41 that “the same division of the
Court of Appeal has given conflicting positions in the same matter by way of
considered decisions.” This is a misleading brouhaha. A counsel must not pull the
10 wool in the eyes of the court at all cost in order to get judgment in his favour. It
follows therefore that the fact that the application to file the 1st respondent’s notice
was discretionally granted the appellant at the lower court does not arm him to
seek for another mile’s walk from the lower court. This is not always the case in
law. This was reiterated by this court in Buhari v. INEC (2008) 19 NWLR (Pt.1120)
15 246 at 382, E-H, wherein it was decided amongst others that granting leave to file
a process or motion out of time does not translate to granting the reliefs sought.

This then leads me to the consideration of the merit and competence of the 1st
respondent’s notice (the appellant herein) at the lower court. At pages 374-375 of
20 the record, the appellant as the 1st respondent filed his respondent’s “Notice of
Intention to Contend that judgment should be affirmed on grounds other than those
relied on by the Court of Appeal,” wherein he relied on these grounds as follows:

(a) The purported sale of the property in issue by the 2nd respondent
25 to 1st respondent was from the totality of the evidence available to
the court a gross undervalue of the true worth of the property so
as to be evidence itself of fraud and collusion between the parties.
(Relief No.2 of the amended statement of claim)

30 (b) That the purported sale of the property itself was a breach of the
fundamental covenants of the mortgage agreement exhibit ‘1’ in
that the sum of money claimed upon which the property was
purportedly sold was false and a misrepresentation of the
indebtedness of the 1st respondents debt. (Reliefs 1 and 4 of the
35 amended statement of claim).

It must be noted that the gravamen of the appellant under this issue is “Whether
the court below adequately considered the 1st respondent/appellant’s notice to
contend in its judgment.” I must again reiterate that a counsel must not think that
40 every process he files must be accepted gullibly and sheepishly by the court.

On the ground of gross undervalue of the sale of the auctioned property, the lower
Court of Appeal at pages 486-488, particularly from the 3rd paragraph and pages
531-534 thoroughly considered that ground of the notice to contend. In giving
45 preference to exhibit 29 as against exhibit 26, the lower Court of Appeal at pages

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531- 541 elaborately sifted and strained the points why there was no such element
of gross undervalue in the auction of the disputed property to the 1st respondent at
the price of N3.7m. In fact, prior offers made to the appellant were within the range
of the auctioned price. Furthermore, the appellant was given the leverage and
5 liberty to look for buyers himself and ample choices with regard to the liquidation
of his indebtedness but failed to utilize them. How then can he complain to contend
the judgment of the trial court on other grounds other than what the trial court
came out with?

10 On the 2 leg of the ground of notice to contend based on the purported sale of the
property itself as a breach of the fundamental covenants of the mortgage agreement
exhibit ‘l’ in that the sum of money claimed upon which the property was purportedly
sold was false and a misrepresentation of the indebtedness of the 1st respondent’s
debt, the appellant also Contended that it should be affirmed on other grounds
15 other than that given or affirmed by the trial Court. This ground was also profoundly
dilated on by the lower court at pages 534-538 of the record.

Thus, there was abundant evidence and facts to prove that the debt, either the
principal or interest was admitted by the various acts and, dealings of the appellant
20 with the 2nd respondent. May I borrow the abstract of the lower court to demonstrate
this when in the 2nd paragraph of page 538 from line 7 of the record, it highlighted
thus;
“It is pertinent to note that in all these exchanges of correspondences,
there was no time the 1st respondent protested to the amount Outstanding
25 against him which covered both the principal loan and the accrued (sic)
interest, he being an experienced and professional banker, DW1, in his
testimony in court stated at that time up to February, 1991, he did not
repay the loan while interests Continued to accrue on the principal sum
to the tune of N5,075,345.14”
30
This clearly shows that the appellant was only economical with the truth and facts
of the case and would want another reason or ground other than what was factual
to be affirmed or varied, which cannot be so in law. This was the observation and
consideration of the lower court at pages 484-488, 531-543 of the record. The
35 appellant as the 1st respondent wanted the lower court to consider other grounds
in addition, to the reasons and grounds advanced by the trial court for its judgment,
which was rejected by the lower court. Notice to Contend is not an opportunity or
forum of eating your cake and at the same time having it! You cannot seek to
maintain the grounds and reasons of the trial court and still want other grounds
40 and reasons for the judgment to be retained.

In a respondent’s notice, a party seeks to retain the judgment appealed from but
at the same time wants it varied. See Per Mohammed, J.S.C. in Eze & Ors v.
Obiejuna & Ors. (1995) LPELR-1191 (SC), (1995) 6 NWLR (Pt. 404) 639. It is a
45 means for fine-tuning a victory and not to destroy it. A respondent’s notice is only

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available to vary and retain the judgment and not to reverse same. The appellant
was only trying to reverse the judgment of the trial court by a misrepresentation of
fact and circumstances. The lower court was right and I affirm same when it held
at page 542 in the 2nd paragraph thus:
5
“... for the reasons I gave above, have not seen any valid and cogent
reasons given in the notice as would enable me affirm the decision of
lower court “other than those given by it” I refuse to act on the notice for it
is devoid of any merit ... “
10
Where in fact the judgment of a court is perverse, substantially and gravely without
merit as in the present case, where the trial court goofed in the appreciation,
comprehension and evaluation of the facts and the law to affirm the judgment and
vary it with some other grounds or reasons given by the trial court will be antithetical
15 and anachronistic to justice, for a wrong and faulty foundation cannot give a sound
and strong house. Therefore, there cannot be merit in the respondent’s notice.
This issue does not favour the appellant and is most unmeritorious and vexatious.

Issue Three:
20
Whether the court below was right in its decision that the auction sale of
the mortgaged property by the 2nd respondent as unpaid mortgagee, to
the 1st respondent was valid and proper, and the appellant had lost his
equity of redemption in the light of the evidence led and the provisions of
25 the extant laws. (Grounds 3, 4, 5, 6 and 10).

The appellant’s learned Counsel made his submission herein under issues 3, 4
and 5. On whether contrary to the decision of the court below, the plaintiff’s equity
of redemption was available and properly utilized since the mortgagor’s title had
30 not been extinguished or destroyed by the purported auction of the mortgaged
property to the 1st respondent (Grounds 5 & 6), he submitted that it was erroneous
for the lower Court to hold that the equity of redemption was unavailable to the 1st
respondent after the auction sale of June 1992 in view of the presence of fraud and
collusion in the sale, payments made to reduce the mortgage debt, indebtedness
35 of the appellant not ascertained and absence of Governor’s consent or withholding
of same. He relied on Savannah Bank of Nig. Ltd v. Ajilo (1989) 1 NWLR (Pt. 97)
305; FMBN v. Babatunde (1999) 12 NWLR (Pt. 632) 683 at 691; Majekodunmi v.
Co-op Bank (1997) 10 NWLR (Pt.524) 198 at 215. Thus, he maintained that the
equity of redemption is inseparable and continues until the mortgagor’s title is
40 extinguished as decided in Nigerian Advertising Services Ltd v. UBA Ltd (2005)
14 NWLR (Pt. 945) 421 at 438.

In arguing issues 3 and 5 together, his grouse is whether the court below was not
in error when it held that failure by the unpaid mortgagee to comply with all the
45 conditions precedent set out in both the Auctioneers Law and the Land Use Act

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before purporting to sell off the disputed property did not vitiate the entire exercise
and whether the lower court was not in error not to dismiss the appellant’s appeal
before it for lack of merit. He conceded that case law relied upon by the lower
court is good but that the sale was tainted with fraud and collusion, the buyer did
5 not buy in good faith and was aware of the irregular circumstances surrounding
the sale. That it was wrong for the lower court relying on the case of Ibiyeye v.
Fojule (2006) 2 SCNJ (2006) 3 NWLR (Pt.968) 640 to hold that a breach of the
Auctioneers Law was not fatal.

10 THE NEED FOR THE SUPREME COURT TO DEPART FROM ITS DECISION in
Ibiyeye v. Fojule (2006) 2 SCNJ 1. He advocated this honourable court to depart
from its decision in above case because the Auctioneers Law like the Public Land
Acquisition Law is designed to protect the public from illegal sale of their property,
thus sections 18 and 19 of the Auctioneers Law must be construed positively to
15 achieve this objective.

That in keeping with his constitutionally guaranteed right to property, any

requirements of the enabling law must be complied with. Similarly, that where
there is a breach of statute preconditions, such transaction or event must be
20 judicially set aside. He relied on Dongtoe C.S.C, Plateau State (2001) FWLR at
1663; (2001) 9 NWLR (Pt.717) 132 followed in SC/71/12 and SC/178/2008 NNPC
and Anor v. Famfa Oil Delivered on 12/5/2012 Per Rhodes-Vivour, JSC; (Reported
in (2012) 17 NWLR (Pt. 1328) 148. He prayed this court to resolve this issue in his
favour and allow the appeal.
25
The learned senior counsel to the 1st respondent argued issue from grounds 3, 4,
5, 6 and 10 of the grounds of appeal. It is his submission and as conceded by the
appellant also, that irregularities from the auction sale by shortness of statutory
notice or sale at low price may not vitiate the sale of the mortgaged property. He
30 cited in support the cases of Ibiyeye v. Fojule (2006) NWLR (Pt.968) 640 at 661;
Okonkwo v. CCB (Nig.) Plc (2003) 8 NWLR (Pt. 822) 347 at 388; A.C.B. Ltd v.
Ihekwouba (2003) 16 NWLR (Pt. 846) 249 at 265. He settled that there was no
proof on issue of fraud or collusion. He reiterated that the mortgagee is powered to
protect the mortgaged debt as held in Agboola v. UBA Plc (2011) 11 NWLR (Pt.
35 1258) 375 at 412. He contended that the appeal and call by the appellant for this
honourable court to reverse its decision in Ibiyeye v. Fojuole (supra) cannot be
done as the conditions for that have not manifested. Similarly, section 44 of the
1999 Constitution (as amended) applies to compulsory acquisition of land and not
in cases of this nature. Which according to him are taken care of in section 44,
40 2(C) of the 1999 Constitution (as amended). He maintained that the appellant’s
equity of redemption was unavailable since as at 5/6/1992, when the mortgage
properly auctioned to the 1st respondent, the appellant was still indebted to the 2nd
respondent. He similarly submitted that the consent of the Military Administrator
was already issued vide the letter referenced NCL/3371/64 dated 3/5/94 with a
45 confirmation of same at page 289. That even if the consent was absent, the

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transaction cannot be null and void as decided in Solanke v. Abed (1962) 1 All
NLR (1962) 1 SCNLR 371. He urged this issue to be resolved against the appellant
and to dismiss the appeal.

5 The learned counsel to the 2nd respondent in arguing this issue under his issues 3
and 4 submitted that in the instant appeal, the equity of redemption available to
the appellant was extinguished by the auction sale conducted on 5/6/92 occasioned
by his failure to liquidate his indebtedness to the 2nd respondent and the attempt
to effect payment of N1.2m after the auction sale cannot restore the equity of
10 redemption. On the absence of the governors consent, it is submitted that the
consent issued is not in dispute as same is contained at page 285 of the record
with a confirmation of the grant at page 289 of the record.

On the validity of the auction sale, he contended that short notice preceding the
15 auction sale after 2 days provided in the Auctioneers Law is no longer a ground for
setting aside an auction sale but an irregularity remediable in damages. He cited
in support Okonkwo v. CCB Nig. PIc (2003) 8 NWLR (Pt. 822) 347 at 388-389;
A.C.B. Ltd v. Ihekwoaba (2003) 16 NWLR (Pt. 846) 249 at 265; Wema Bank PIc
v. Abiodun (2006) 9 NWLR (Pt. 984) 1 at 141; Ibiyeye v. Fojule (2006) 3 NWLR
20 (Pt. 968) 640 at 660; Abdulrahman v. Oduneye (2009) 17 NWLR (Pt. 1170) 220 at
234. He settled that the issue of fraud and collusion are allegations of crime that
must be specifically pleaded and particularized. He stated that there is no basis
for the invocation of section 44 of 1999 Constitution in relation to the instant appeal
which border on contractual agreement. He concluded that a case for the departure
25 of this honourable court in the case of Ibiyeye v. Fojule (supra) not been made out
and that this court should decline it. He pray that this issue be resolved in favour
of the 2nd respondent and dismiss the appeal.

The learned counsel to the 3rd and 4th respondents riposted that the 2nd respondent
30 was well within its right to have the mortgaged property to the 1st respondent on 5/
6/19 when the mortgage money had become due and the power of sale had arisen.
He also relied on section 126(1) of the Kaduna State Law of Property Edict. He
submitted that by the cases of Okonkwo v. CCB Nig. PIc (2003) 8 NWLR (Pt.
822) 347; A.C.B. Ltd. v. Ihekwoba & Ors. (2003) 16 NWLR (Pt.846) 249; lbiyeye
35 v. Fojule (2006) 3 NWLR (Pt. 968) 640, non-compliance to the 7 days’ notice in
the Auctioneers Law and Land Use Act cannot vitiate the auction sale. On the
invitation of the appellant for court to depart from its decision in Ibiyeye v. Fojule
(supra) similar with the case of Babatunde v. Bank of the North Ltd. (2011) LPELR
8249 (SC); (2011) 18 NWLR (Pt. 1279) 738, he submitted that it will occasion
40 grave injustice to 3rd party purchasers of mortgaged properties, who are innocent
purchasers for value without notice of any irregularity in the exercise of the power
of sale. In the same light, he countered that whereas consent was granted as at 3/
5/1994, the letter of 11/5/1994 cannot mean that consent was withheld and that
by the cases of Awojugbagbe Light Industries Ltd. v. Chinukwe (1993) 1 NWLR
45 (Pt.270) 485 at 609 and Solanke v. Abed (1962) 1 SCNLR 371, it would be

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inequitable to deprive a purchaser for value without knowledge of his right to a

property simply for want of consent to assign. He thus prayed this court to resolve
this issue in their favour and dismiss this appeal.

5 It will be interesting to recap the circumstances that led to the auction sale of the
disputed property. The appellant, who was a customer of Savannah Bank, the 2nd
respondent, was granted credit facilities of N310.000 and subsequently increased
to N1.8 million and tendered as security a C of O covering a landed property
situate at No.3. Kachia Road, shopping complex, Kaduna South, Kaduna. Being
10 unable to liquidate the loan, the Bank advertised in a National Daily newspaper
“The Reporter” the sale of the mortgaged property by public auction fixed for 5/6/
1992 and same was auctioned to the 1st respondent for N3.7 Million after 2 days of
the auction notice. After the auction sale the 1st respondent applied for consent of
assignment of title which was granted to him. However, in 1994, the appellant
15 petitioned to the Military Administrator of Kaduna State in respect of the auction
sale to the 1st respondent who directed the 2nd respondent to postpone further
action on the perfection of the assignment pending resolution. By the pleadings
and evidence before me, it is true that before the auction sale, there were several
correspondences between the appellant and the 2nd respondent before the auction
20 of the disputed property to the 1st respondent in order to reach an amicable
settlement. By exhibit 12, the appellant implored for extension of time for the sale
of the mortgaged property to the end of March, 1992 and the 2nd respondent acceded
to the request even up to the 30/4/1992 vide a letter admitted as exhibit 15. See
pages 203 and 206 respectively of the record. At page 203 of exhibit 12, the
25 appellant offered that “I want to retain my building in whatever way I can, hence my
decision to sell off all my shares elsewhere and pay off …... I will therefore, find a
buyer with a much more serious offer instantly. This is my other alternative.” In
reminding the appellant that the repayment of the loan took about 10 years, the
2nd respondent agreed to the request of the appellant and extended time for him. It
30 is further in evidence that by exhibits 2, 8, 10, 11, 12, 13, 14, 15, 19 and 20,
abundant and sufficient correspondences were exchanged between the parties
with respect to the settlement of the indebtedness of the appellant.

Also, by exhibits 11 and 14 at pages 262 and 205 respectively, there was the
35 notice by the 2nd respondent to the appellant of selling off the property if the loan
was not liquidated by 29/2/1992, which was duly acknowledged and appreciated
by the appellant. All these prior notices and awareness to foreclose the equity of
redemption of the appellant are clear and speak volumes against him. Additionally,
the appellant himself admitted in evidence at page 42 line 14 of the record that “as
40 at December 1992, the payment I made was not sufficient to liquidate debt”.

It is the law that a mortgagor coming into equity to redeem must do equity and
pay the principal interest and cost before he can recover the property which at law
is not his. See Per Christopher Witchell Chukwuma-Eneh, J.S.C, in Yaro v. Arewa
45 Construction Ltd. & Ors (2007) LPELR-3516(SC), (2007) 17 NWLR (Pt. 1063)

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333. He further strongly stated the law thus:

“Relief (b) cannot be granted unless until the mortgage debt is repaid to
the last kobo; or the 2nd respondent (the mortgagee) has consented to
5 granting of such order. There is no such consent here. The cases of
Barclays Bank of Nig. v. Ashiru (supra) and Bank of New South Wales v.
O’Connor (supra) have held that courts cannot compel mortgagee to part
with his security unless he has received his money which is the case in
this matter. This is so, even though, as general rule, the mortgagor and
10 all persons having an interests in the equity of redemption as the appellant
where are entitled to redeem the mortgage.”

Again, there is the Notice of Sale of Immovable Property contained at page 210
pasted at the premises of the mortgaged property, with the Newspaper publication
15 at page 211 of the record. This clearly shows that the appellant was about to lose
his equity of redemption and to invoke the power of sale exercisable by the 1st
respondent. Yet, the appellant did nothing to redeem his property until after it was
sold to the 1st respondent that he started crying foul without any evidence to
support it. The law here is very handicapped to him and cannot come to his aid.
20 He has nothing in fact to do with the 1 st respondent in this case. This was
emphasized by Per Adekeye, JSC, in Babatunde & Anor v. Bank of the North Ltd
& Ors (2011) LPELR-8249 (SC); (2011) 18 NWLR (Pt. 1279) 738, wherein he held
that:
“Before a mortgagee can pass a good title to a purchaser free from the
25 equity of redemption - the right to exercise the power of sale under a
mortgage must have arisen, the mortgage, debt must have fallen due.
Any purchaser who bought a property sold by a legal mortgagee in exercise
of his power of sale under a mortgage upon a default in repayment of a
loan by the mortgagor is not a trespasser. Hence, once the precondition
30 of notice of sale is given to the mortgagee or his agent. preceded by a
notice of demand of repayment of money lent to the mortgagor and the
mortgagee proceeds to sell in good faith subsequent purchaser in good
faith gets a good title and a court will not intervene in the sale only because
the sale did not meet with the satisfaction of the mortgagor.”
35
The 2nd respondent’s power of sale having arisen the appellant can no longer have
the equity of redemption especially after the property has been sold off to a 3rd
party without collusion nor fraud. In fact, the 2nd respondent is not a trustee or the
appellant in respect of the power of sale once that power has arisen and become
40 exercisable. Thus, the allegation of fraud or collusion will always not favour the
complainant. This was again observed by his Lordship. Adekeye, JSC in Babatunde
& Anor v. Bank of the North Ltd. & Ors (2011) LPELR-8249 (SC); (2011) 18 NWLR
(Pt. 1279) 438, thus:

45 “... Complaint of undervalue alone is not enough to vitiate the exercise of

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a mortgagee’s power of sale. It must be shown that the sale was made at
a fraudulent or gross undervalue. If a mortgagee exercises his power of
sale bona fide for the purpose of realizing his debt and without collusion
with the purchaser, the court will not interfere even though the sale be
5 very disadvantageous to the mortgagor, unless the price is so low as in
itself to be evidence of fraud. The Court will always be on the lookout that
mortgagee acts bona fide and observes reasonable precautions to obtain
not the best price but a proper price. A.C.B. Ltd v. Ihekwoaba (2003) 16
NWLR (Pt. 846) pg. 249. Ekaeteh v. Nigeria Housing Development Society
10 Ltd. (1973) 6 S.C. 183; Rafukko v. Kurfi (1996) 6 NWLR (Pt. 453) 235.”

It is in evidence, proved and pleaded by the respondents especially the 2 nd

respondent that the sale was done in good faith and without collusion. In fact, the
allegation of fraud or collusion and under value price was never proved against the
15 2nd respondent.

In the 4th paragraph of page 42 from line 12 of the record. PW1 during his cross-
examination revealed inter alia that “... the property had been sold. The property
sold to 2nd defendant. I made effort to get in touch of (sic) 2nd defendant. I made
20 effort to get in touch of (sic) the 2nd defendant through one Ahmed Tijjani Abdulkadir.
As at December 1992, the payment I made was not sufficient to liquidate debt.” It
is clear and apparent that the property and title has passed into the hands of the
1st respondent that the appellant is now gallivanting about for legal backup. He
ought to have protected his right before the sale of the mortgaged property and not
25 after it has gone into the hands of an innocent purchaser for value without any
notice or encumbrances, which in this case there were none. This was similarly
restated by per Adekeye J.S.C in Babatunde & Anor v. Bank of the North Ltd &
Ors (2011) LPELR-8249 (SC); (2011) 18 NWLR (Pt. 1279) 738, when he warned:

30 “The only obligation incumbent on a mortgagee in the exercise of his

power of sale is that he should act in go faith. Whether selling under an
express agreement as in this case in accordance with Clause 3(b) of the
Deed of Legal Mortgage made on 26/10/76 and 18/9/78 or statutory power
he may generally, conduct the sale in such manner as he may, think
35 most conducive to his own benefit unless the deed contains any restrictions
as to the mode of exercising the power, provided he acts bona fide and
observes reasonable precautions to obtain not the “best price” but “a proper
price”. Undervalue alone is not enough to vitiate the exercise of a
mortgagee’s power of sale, it must be shown that the sale was made at a
40 fraudulent or gross undervalue. A.C.B. Ltd. v. Ihekwoaba (2003) 16 NWLR
(Pt. 846) pg. 249, Ekaeteh v. Nigeria Housing Development Society Ltd
(1973) 6 SC 183; Rafukka v. Kurfi (1996) 6 NWLR (Pt. 453) pg. 235.”

As at 5/6/1992 when the mortgaged property was auctioned, the appellant remained
45 indebted to the Bank and therefore lost the equity of redemption in the property

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immediately it was sold to the 1st respondent. Having held that the purported
auction sale was not invalid, the appellant cannot and would not have retained any
equity of redemption after the auction sale. Even if the governor’s consent was not
obtained, there was ample evidence that the mortgage deed was executed between
5 the parties. See Awojugbagbe Light Industries Ltd v. Chinukwe (1993) 1 NWLR
(Pt. 270) 485 at 609. Besides, by the pleadings of the 3rd and 4th respondents at
the trial court particularly in page 21 in paragraph 8(d) of their joint statement of
defence, they affirmed and averred that:

10 (d) The 4th defendant relying on the application and upon fulfillment of
both the 1st and 2nd defendant of its condition for transfer gave its
consent for the assignment per its letter to the 2nd defendant No.
NCL/3371/64 of 3/5/94, which the Military Administration
subsequently order to be suspended pending the resolution of all
15 the issues raised in the plaintiffs letter of protest.

Expressly and by implication, there was therefore consent given by the Military
Administration for the transfer of title in the mortgaged property in favour of the 1st
respondent at page 285 of the record, the letter of approval for consent reads:
20 APPROVAL OF MORTGAGE ASSIGNMENT OF RIGHT OF OCCUPANCY NO.
6500 ….. TO THE ALHAJI MUH. TUKUR ….. The appellant shot himself at the
foot when in admission to this averred at page 6 of the record in paragraph 24(d) of
its amended statement of claim that:

25 (e) It is averred that the Military Administrator of Kaduna State (who

is the appropriate authority to grant and issue consent under the
Land Use Act except when he delegates) by a letter dated the
11th of May 1994 directed the 4th defendant to withhold the grant
of consent in this matter, which act has the following implications...
30
This then means that, consent was given but is only being withheld. Also at page
8 paragraph 31(1)(c), he admitted that the consent was obtained and given but
later reversed thus:

35 (c) Even the consent obtained had been reversed by the Military
Administrator of Kaduna State.

In the above excerpt, it is clear that the approval given and issued at page 285 of
the record was not revoked nor cancelled, thus the grant of the said consent
40 subsists and is valid. Assuming the said letter dated 11/5/1994 amounted to
revocation of the Right of Occupancy inuring in favour of the appellant and against
the 1st respondent, can it be said to be valid in law? Per EKO, J.S.C in Orianzi v.
A.G. Rivers State & Ors (2017) LPELR-41137 (SC); (2017) 6 NWLR (Pt.1561)
224, laid down the conditions for a valid revocation of Right of Occupancy infra:
45

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The 1st respondent (as the 1st defendant) neither plead nor proved the
facts establishing the prerequisites for proper revocation of the plaintiff/
appellant’s title under sections 28 and 44 of the Land Use Act. The relevant
provisions of sections 28 and 44 of the Land Use Act are herein below
5 reproduced: that is - 28(1) It shall be lawful for the governor to revoke a
right of Occupancy for overriding public interest. (1) Overriding public interest
in, the case, of a Statutory Right of Occupancy means - (a) - (b) the
requirement of the land by government of the State or by a Local Government
in the State, or the requirement of the land by government of the federation
10 for public purposes. (c) - (14) The governor shall revoke a right of occupancy
in the event of the issue of a notice by or behalf of president if such notice
declares such land to be required by the government for public purposes.
(5) - (6). The revocation of a right of occupancy shall be significant under
the hand of a public officers duly authorized in that behalf by the governor
15 and notice thereof shall given to the holder. 44. Any notice required by
this Act to be served on any person shall be effectively served on him - (a)
by delivering it to the person on whom is to be served: or (b) by leaving it
at the usual or last known place of abode of that person: or (c) by sending
it in a prepaid registered letter addressed to that person his usual or last
20 known place of abode ... The issuance of the mandatory or statutory
notices under section 28 and 44 of the Land Use Act being conditions
precedent for proper revocation of a Right of Occupancy in or over a landed
property, and the revocation of the Right of Occupancy are matters of
fact, which must be proved by the party asserting the revocation of a right
25 of occupancy. The 1st respondent herein, as the 1st defendant at the trial,
in his amended statement of defence, acknowledged that the plaintiff/
appellant had a right of occupancy over the disputed property who was
revoked. This fact is pleaded in paragraph 6 of his amended statement of
defence, copied at pages 46 - 49 of the records, thus - 6. Paragraph 15 of
30 the statement of claim is denied and in furtherance (sic) the 1st defendant
shall contend at the trial that, the plaintiff’s right of occupancy having
been revoked by the Military Governor. it was up to the plaintiff to make
claims for compensation … Revocation of the right of occupancy or title
to landed property is not just a mere executive or administrative act that
35 can be done in secret or in any surreptitious manner and later conveyed
in official government gazette. The title holder is not only entitled to the
notice of the proposed revocation with the public purpose for the revocation
clearly spelt out therein, he is also entitled to be heard on the proposed
revocation of his title. My firm view, on this is that reading sections 28 and
40 44 of the Land Use Act together with section 36(1) of the Constitution, the
governor when it behoves him to revoke any right of occupancy in or over
any landed property has a duty to act quasi-judicially and in transparent
manner”. The revocation of a right of occupancy shall be signified under
the hand of a public officer duly authorized in that behalf by the governor
45 and notice thereof shall be given to the holder …. According, whoever

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relies on the fact of the revocation of the plaintiff/appellant’s right of

occupancy must not only plead that fact of the revocation but must also
lead evidence thereof to establish that the purported revocation of the
right of occupancy of the plaintiff/appellant was valid in law and existent in
5 fact.

Furthermore, the 4th respondent, through the surveyor general issued a memo at
page 289 of the record invalidating the old certificate of occupancy formally in the
name of the appellant and re-issuance of a new certificate occupancy in favour of
10 the 1st respondent. Moreover, it is clear that the legal mortgage had been created
between the appellant and the 2nd respondent over the property and that the auction
sale was conducted which passed the title of the property to the 1st respondent as
bona fide, purchaser for value without notice, can then lack of consent or absence
of it vitiate and invalidate the transaction? This caused his Lordship. Per Anthony
15 Ikechukwu Iguh, J.S.C in Awojugbagbe Light Industries Ltd. v. Chinukwe & Anor.
(1995) LPELR-650 (SC); (1995) 4 NWLR (Pt. 390) 379, to distil and clarify the
matter thus:

“I am therefore of the firm view that section 22(i) of the Land Use Act
20 prohibits the alteration of a right of occupancy without the consent of the
governor first had and obtained but does not prohibit agreement to alienate
or in respect of terms and conditions for the purpose of effecting such
alienation if and when the governor gives his consent to the transaction in
issue.”
25
As to whether the non-compliance to the Auctioneers Law and the Land Use Act
vitiated the sale to the 1st respondent, the law is settled on this. Moreover, the
circumstances playing out in this case cannot by any stretch of imagination favour
the appellant. The appellant was not caught unawares by the sale of his property
30 after he could not redeem same. There were correspondences and notices which
he took for granted and to his disadvantage. In what way can he say he was
unfairly treated? He who comes to equity must do equity. Having not paid and
settled his debt, and with all the entreaties and caresses of the 2nd respondent on
him, how was he shut out in the whole game and scenario? Although the sale was
35 effected 2 days after the 7 days’ notice, no injustice was wrought on him. Thus
except the sale is tainted with fraud and collusion, which is absent herein, irregularity
in an auction sale contrary to the provision of the Auctioneers Law and Land Use
Act cannot vitiate the sale. See Okonkwo v. CCB. (Nig). PIc (2003) 8 NWLR (Pt.
822) 347; A.C. B Nig. Ltd v. Ihekwoaba & Ors (2003) 16 NWLR (Pt. 846) at 249;
40 Ibiyeye v. Fojule (2006) 3 NWLR (Pt. 968) at 640. The lower court was therefore
right to set aside the judgment of the trial court since the respondent had validly
acquired bona fide title to the auctioned property without notice of any fraud or
collusion and to grant the relief sought by the respondents especially the 1st
respondent.
45

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The call to depart from the decision in Ibiyeye v. Fojule (2006) 2 SCNJ 1, (2006) 3
NWLR (Pt. 968) 640 will spell anarchy in judicial precedents and the world of
justice. It must be noted that all the decisions and case laws in respect of sections
19, 20 and 21 of the Auctioneers Law concerning 7 days’ notice and section 44 of
5 the Land Use Act are congruently congruous and, mutually supportive and strongly
advocate substantial justice. See Okonkwo v. CCB. (Nig.) Plc (2003) 8 NWLR
(Pt. 822) 347; A.C.B. Ltd v. Ihekwoaba & Ors (2003) 16 NWLR (Pt.846) at 249;
Ibiyeye v. Fajule (2006) 3 NWLR (Pt. 968) at 640. Since there is no conflict there
in them, ‘the call for departure cannot be made: The Supreme Court may depart
10 from its previous decisions where it is shown or demonstrated that the earlier
decisions are either erroneous in law; reached per incuriam or occasioning a
miscarriage of justice. See Per Bage, JSC in Shema & Ors v. FRN (2018) LPELR-
43723 (SC), (2018) 9 NWLR (Pt. 1624) 337.

15 The right and privilege here is not to the Mortgagor or the appellant in the instant
appeal but to the purchasers or the public to have adequate time to purchase the
mortgaged property. The mortgagor herein (the appellant) by the records and
evidence had sufficient and adequate notice of the auction sale, prior offer at N4m,
even with extension of time but did not utilize it. By the dictum of Uwaifo, JSC in
20 Okonkwo v. Cooperative & Commerce Bank (Nig.) PIc & Ors (2003) LPELR-2484
(SC); (2003) 8 NWLR (Pt. 822) 347, the auction sale was valid despite the non-
compliance with the Auctioneers Law or section 44 of the Land Use Act. It is an
irregularity remediable to the mortgagor/appellant in damages. Per Uwaifo, JSC in
Okonkwo v. Cooperative & Commerce Bank (Nig) PIc Ors (supra) gave the rationale
25 and intent behind the non­compliance with the Auctioneers Law or section 44 of
the Land Use Act. Furthermore, this will go contrary to the provision in section
21(1) of the Conveyancing Act. 1988. Per Ogundare, JSC in A.C.B. Ltd & Ors v.
lhekwoaba & Ors (2003) LPELR 203(SC), (2003) 16 NWLR (Pt. 846) 249
expounded it thus:
30
“By virtue of section 21(1) of the Conveyancing Act 1881 (England) a
statute of general application applicable in Imo State at all time relevant
to this case, his title to the property cannot be defeated by the irregularity
in the auction sale of 3/6/87. Section 21 (1) provides: “Where a conveyance
35 is made in professed exercise of the power of sale conferred by this Act
the title of the purchaser shall not be impeached on the ground that no
case has arisen to authorize the sale, of that due notice was not given or
that the power was otherwise improperly or irregularly exercised, but any
person damnified by an unauthorized or improper or irregular exercise of
40 the power shall have his remedy in damages against the person exercising
the powers.” From the findings of the learned trial Judge the 3rd appellant
is obviously a bona fide purchaser for value without notice of the irregularity
of non-compliance of section 19 by the 2nd appellant. As the property in
question has been duly granted to the 3rd appellant following the auction
45 sale and in accordance with the provisions of the Land Use Act his title to

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the property remains valid. See Sanusi v. Daniel (1956) SCNL 288 at 291;
(1956) 1 NSCC 85 at 88; (1959) 1 FSC 93 at 95 where Jibowu Ag. FCJ as
he then was, said: “The appellant’s complaint is against an irregular
exercise of the power of sale on the ground that there was a contravention
5 of section 19(1) of the Sales by Auction Ordinance. It seems to me that
the title of the 2nd respondent cannot be impeached since the property
was conveyed to him, and that the appellant’s remedy is in damages
against the 1st respondent as provided by section 21 (2) of the Conveyancing
Act. 1881.” Both the Supreme Court of Nigeria and the West African Court
10 of Appeal came to the same conclusion in Momoda Raji v. M. Williams &
Ors. 16 NLR 149 above referred to, and with the views expressed in the
case by their Lordships I respectfully agree. See also Andrew N. Okonkwo
v. Co-operative & Commerce Bank Nig. Plc & Ors. SC 58 1998 delivered
on 28/2/2003, Report in (2003) 8 NWLR (Pt.822) 347) per Uwaifo, JSC:
15
It is now firmly settled that, in the interpretation of a statute where its interpretation
will result in defeating its object, the court would not lend its weight to such an
interpretation. The language of the statute must not be stretched to defeat the aim
of the statute. In other words, the interpretation which appears, to defeat, the
20 intention of the legislature should be bye-passed in favour of that which would
further the object of the Act. See Per Ogbuagu, J.S.C Onochie & Ors. v. Odogwu
& Ors. (2006) LPELR-2689(SC), (2006) 6 NWLR (Pt. 975) 65. This is the
interpretation this honourable court chose in Okonkwo v. C.C.B (Nig.) PIc (2003)
8 NWLR (Pt. 822) 347; A.C.B. Ltd. v. Ihekwoubu & Ors. (2003) 16 NWLR (Pt.846)
25 at 249; Ibiyeye v. Fojule (2006) 3 NWLR (Pt. 968) at 540, in deference sections
19, 20 and 21 of the Auctioneers Law and 44 of the Land Use Act since they will
be antithetical to justice and work injustice to a bona fide purchaser for value
without notice. These were further considered by Per Samson Odewingie Uwaifo,
JSC in Okonkwo v. Cooperative & Commerce Bank (Nig.) Plc & Ors (supra),
30 when he justified it thus:

“The only serious issues to be considered in this appeal are: (1) whether section
19 of the Auctioneers Law. Cap. 12. Laws, of Eastern Nigeria. 1961 (applicable in
Abia State) was waived by the appellant by operation of clause B of exhibit B: (2)
35 whether such a statutory provision can be waived: (3) what is the effect of non-
compliance with the provision. The provision of section 19 reads thus: “No sale by
auction of any land shall take place until after at least seven days’ public notice
thereof made at the principal town of the district in which the land is situated and
also at the place of the intended sale. The notice shall be made not only by
40 printed or written documents, but also by beat of drum or such other method
intelligible to uneducated persons as may be prescribed as the divisional officer of
the district where such sale is to take place may direct, and shall state the name
and place of residence of the seller.” Although some aspects of this provision have
become anachronistic owing to socio-political changes, it cannot be denied that
45 the purpose of the provision is for the mortgagee to give adequate notice to the

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public of the proposed sale. It is not a notice intended to be given to the mortgagor.
This is to ensure that a true public auction, where everyone interested in the
property may have the opportunity to bid for it, is conducted for a fair deal, devoid
of unconscionable bargain through connivance or collusion. This is not a notice
5 which can be waived by the mortgagor. Actually, it does not lie with him to do so
as it is not meant for him. The court below was therefore in error to have held that
the waiver contained in clause 8 of exhibit B extended to section 19. There is
absolutely rib connection between the two. The former is a waiver of a private right
of the mortgagor. The latter is to ensure that the auction to borrow the words of
10 Lord Mansfield in Bexwell v. Christie (1776) 1. Compo 395 at 396; 98 ER 1150, is
not “a fraud upon the sale and upon the public.”

Per Niki Jobi, J.S.C in the above case also justified the rationale behind the
interpretation given above thus:
15
“The law of sale by auction or auction sale protects the purchaser and
that is the basis of the principle of law that a mortgagors right essentially
is in damages. The law has an important qualification and it is that the
purchaser must have bought the mortgaged property in good faith, that is
20 bona fide and not in bad faith, that is, mala fide. The sympathies of the
law on the purchaser will vanish the moment the court comes to the
conclusion that the purchaser bought the property in bad faith. Bad faith
on the part of the purchaser is a matter of fact to be deduced from the
totality of the purchasing or buying conduct of the purchaser. Bad faith
25 taints or better still, destroys a mortgage sale and therefore the property
in the sale. While I agree that the principle of law of caveat emptor will
apply in respect of sale of mortgage property to a bona fide purchaser,
the purchaser has a legal duty to prove that he bought the property bona
fide and without any element of bad faith. Where the court finds evidence
30 of bad faith then, it is entitled to read mala fide into the transaction that
will be against the purchaser. There is yet another aspect. While I entirely
agree with the position of the law that irregularities arising from the sale
by way of lack of giving statutory notice to the plaintiff and sale of the
property at a lower price per se, may not vitiate sale of a mortgaged
35 property. I think, and I feel very strongly that in order to enable the purchaser
have the property for keeps, property must pass in the sale from the
mortgagee to the purchaser. In other words, where in law property does
not pass to the purchaser what he has bought is a nullity ab initio. In
such a situation or circumstance, a purchaser cannot be heard to rest his
40 defence, on good faith on his pan. The defence of good faith in my humble
opinion, will arise only when property can in law pass to the purchaser”

There is absolutely no merit in this appeal and it is most unmeritorious. The

judgment of the lower Court of Appeal delivered n 30/1/2007 is affirmed. This appeal
45 therefore, is dismissed and costs must follow events. The appellant has added in

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Abba Aji; Rhodes-Vivour; Nweze, JJ.SC

vain the work load of this court, wasted the resources, and time of the respondents
and delayed the 1st and 2nd respondents from enjoying the fruit of their judgment. I
therefore order the costs of N500,000 against the appellant.

5 RHODES-VIVOUR, JSC: I had the advantage of reading a draft copy of the leading
judgment delivered by my learned brother. Abba Aji. JSC. I am in complete agreement
with the reasoning and conclusion that the appeal be dismissed.

The appeal is also dismissed by me.

10
NWEZE, JSC: I had the advantage of reading the draft of the leading judgment
which my lord. Abba Aji, JSC, delivered now. I agree with His Lordship that this
appeal, being unmeritorious, should be dismissed.

15 As my Lord indicated in the leading judgment. compliant of undervalue alone is

not enough to vitiate the exercise of mortgagee’s power of sale, citing Babatunde
and Anor v. Bank of the North Ltd. & Ord. (2011) LPELR - 8249 (SC), (2011) 18
NWLR (Pt.1279) 738. This is true.

20 In the Anglo-Nigerian Law of Mortgages, the requirement of proof of sale of mortgaged

property at an under value has, always, elicited insightful responses from scholars
and illustrative decisions from the superior courts. See for example. Cootes on
Mortgages, Vol. 2, 9th edition, page 927; Fisher and Lightwood. The Law of
Mortgages, (London: Sweet and Maxwell. nd) Chapters 21 and 22; Skyes. The
25 Law of Securities. (5th ed. 1993); P. Butt, “The Mortgagee’s Duty of Sale.” in (1979)
53 ALJ 172; A. Berg, “Duties of a Mortagee and a Receiver.” in (1993) JBL 213,
cited in O.G. Amokaye “Duty of Mortgagee Exercising Power of Sale.” in (2003)
Vol. 22 JPPL 96; I. O. Smith, Nigerian Law of Secured Credit (Lagos Ecowatch
Publications (Nig.) Ltd. 2001) 80-83.
30
Others include: E. Essien, Law of Credit and Security in Nigeria (Uyo: Golden
Educational publishers. 2000) 234; Warner v. Jacod (1992) 20 Ch, D. 220; Kennedy
v. De Trafford (1987) AC 180, 185; Eka Ete v. NHDS Ltd. (1973) 6 SC 183, 198;
ACB Ltd. v. Ihekwoaba (2003) 16 NWLR (Pt. 846) 249, 269; ldowi v. Jaiyeola
35 (1970) 1 ALR (Comm) 289; Taiwo v. Adegboro (1997) 11 NWLR (Pt. 528) 224;
Viatonu v. Odutayo (1950) 19 NLR 119, Temco Engineering and Co. Ltd v. Savannah
Bank of Nigeria Ltd (1995) 5 NWLR (Pt. 397) 607; W.A.B. Ltd. v. Savannah Ventures
Ltd. (2002) 10 NWLR (Pt. 775) 401, 432, 434.

40 The learned and erudite author, Professor I. O. Smith, SAN in his most invaluable
work, Nigerian Law of Secured Credit (supra) at page 81, dealt with this issue with
accustomed and admirable clarity of thought and presentation. Listen to the
distinguished and prolific author:

45 A sale by the mortgagee at an under value renders the sale invalid. To

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Nweze; Augie; Galumje, JJ.SC

establish sale at an under value, the mortgagor must prove either under
value coupled with impropriety or vice, or under value that is gross and
disadvantageous as to raise a presumptuous of fraud (citing Idowu v.
Jaiyeola (supra); Taiwo v. Adegboru (supra), Once evidence is led by the
5 mortgagor in this way, the onus is on the mortgagee to show that he took
reasonable precaution to obtain the best price reasonably obtainable at
the time of sale, (citing Viatonu v. Oduntayo (supra). This onus may be
discharged by showing that the mortgagee sought and obtained
independent expert advice not only to ascertain the value of the property
10 at the time of the sale but also to decide on the best method of sale,
(Italics supplied emphasis)

I entertain no doubt that this opinion, correctly captures the law on this point, both
in England and Nigeria, Warner v. Jacob (supra); Eka Ete v. NHDS Ltd. (supra);
15 ACB Ltd. v. Ihekwoaba (supra). Indeed, in the latter case (ACB Ltd. v. Ihekwoaba
(supra). Ogundare, JSC approvingly, endorsed the proposition in Eka Ete v. NHDS
Ltd. (supra) at 198 that:

“…. Under value alone is not enough to vitiate the exercise of a mortgagee’s
20 power of sale. It must be shown that the sale was made at a fraudulent or
gross under value. Indeed, it is well established that if a mortgagee
exercises his power of sale bona fide for the purpose of realizing his debt
and without collusion with the purchaser, the court will not interfere even
though the sale be disadvantageous, unless the price is so low as in itself
25 to be evidence of fraud. (Italics supplied for emphasis).

In the instant case, the respondents, especially, the second respondent, proved
that the sale was done in good faith and without collusion.

30 It is for these and the more elaborate, reasons in the leading judgment that I too,
shall entertain order dismissing this appeal. I abide by the consequential orders in
the leading judgment.

AUGIE, JSC: I read in draft the lead judgment just delivered by my learned brother,
35 Abba Aji, JSC, and I agree with him that this appeal totally lacks merit.

He addressed the issues raised in this appeal painstakingly and definitively, and
anything I may say or add would not amount to much. I will simply adopt his
reasoning as mine, and I also dismiss the appeal. I abide by the order as to costs
40 in the lead judgment.

GALUMJE, JSC: I have had the privilege of reading in draft the judgment just
delivered by my learned brother, Uwani Musa Abba Aji, JSC and I agree with the
reasoning contained therein and the conclusion arrived thereat. The appellant who
45 was unable to liquidate the facilities extended to him by the 2nd respondent,

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Galumje; Bage; Eko. JJ.SC

suggested the sale of the mortgaged property as a viable option for the repayment
of the facility. He was given an option to sell the property and pay his indebtedness
to the 2nd respondent within a specified period. By a letter dated 16th April 1992
and admitted as exhibit 15, the 2nd respondent acceded to the request of the
5 appellant for extension of time for the sale of the mortgaged property and the time
to do so was extended to 30th April. 1992. After the expiration of the dead line, with
no payment, the 2nd respondent rightly advertised the mortgaged property for sale.
The mortgaged property was sold to the highest bidder. Appellant can therefore
not be heard to complain that the mortgaged property was undervalued. From the
10 facts of this case, the lower court was not in error when it allowed the 1st respondent’s
appeal. My learned brother, Abba Aji, JSC has adequately resolved all the issues
submitted for determination of this appeal in such a way that I have nothing useful
to add. For the same reasoning ably marshalled in the lead judgment, this appeal
shall be and it is hereby dismissed.
15
I endorse all the consequential orders made in the lead judgment including order
as to costs.

BAGE, JSC: I have had the benefit of reading in draft the lead judgment of my
20 learned brother, Uwani Musa Abba Aji. JSC, just delivered. I agree entirely with the
reasoning and conclusion reached. The appeal is unmeritorious and it is accordingly
dismissed.

EKO, JSC: I had a preview of the judgment just delivered by my learned brother,
25 Uwani Musa Abba Aji. JSC, I hereby endorse it, as it represents my views in the
appeal.

I will however add a few comments. The appellant, as the 1st respondent at the
lower court, raised objection to 4 out of the grounds of appeal in the notice of
30 appeal at the lower court in his brief of argument. At pages 420 and 421 of the
record the purported preliminary objection was argued. It is clear from the
submissions at pages 420 and 421 of the record that the appellant, as the 1st
respondent at the lower court, conceded that grounds 3 & 4 in the said notice of
appeal were valid grounds of appeal, which could sustain and indeed sustained
35 the appeal.

The objection argued at pages 420 & 421 was directed only against grounds 1, 2,
5 & 6 of the grounds of appeal. By its nature a preliminary objection is directed
against “the hearing of the appeal” and not against some specified grounds of
40 appeal where other valid grounds of appeal could sustain the appeal. In other
words, the purpose of a preliminary objection is the contention that the appeal is
incompetent or fundamentally defective; and if it succeeds, it puts an end in limine
to the appeal; NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627; Ndigwe v. Nwude
(1999) 11 NWLR (Pt. 626) 314.
45

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Eko, JSC

A complaint that some of and not all, the grounds are defective is not a preliminary
objection to the hearing of the appeal. A respondent who intends, to object to the
competence of any ground of appeal must do so by motion on notice, and not by
notice of preliminary objection. The procedure the appellant adopted at pages 420
5 of the records whereby he attacked the competence of grounds 1, 2, 5 & 6,
without filing motion on notice to specifically challenge those specific 4 grounds of
appeal was unavailing.

The lower court at pages 495 – 496 of the record the lower court discountenanced
10 the preliminary objection on the ground that the learned counsel for the 1 st
respondent (now the appellant), did not apply or seek leave of this court to move
his preliminary objection which he merely incorporated in his brief of argument,
before the hearing of the appeal. It was on this ground that the lower court took the
stance that his failure to do so would tantamount to (the) court deeming his
15 preliminary objection to have been abandoned.

At the lower court the appellant, as the 1st respondent, incorporated his purported
preliminary objection in his brief of argument. The said brief was adopted by J. B.
Daudu, SAN of counsel to the 1st respondent page 472 in the following terms. That
20 is –
Pursuant to the leave granted by this court on 26/1/2006, the 1st respondent
filed his brief of argument on 7/2/2006. We humbly adopt the brief I have
raised preliminary objection to the ground of appeal at pages 12 and (13)
of the respondent’s brief and we adopt the argument and urge the court to
25 strike out the grounds of appeal.”

I should think that the approach of the lower court as recorded at pages 495 - 496
of the record was rather too technical, as opposed to the current trend of doing
substantial justice. For whatever the preliminary objection was worth the lower
30 court, being an intermediate court, ought to have considered the preliminary
objection, including its competence, even if it had come to the conclusion that it
had been abandoned as it was urged to do by the appellant’s counsel. By so
doing the apex court would be given an opportunity, in its supervisory jurisdiction
to decide whether or not its decision to discountenance or strike it out for
35 abandonment was correct or wrong. Doing so would have been in accordance with
the administrative view of Sowemimo, JSC in James Odunayo v. The State (1972)
LPELR - 15509 (SC) at page 8 –

There must be, and there are a number of cases where it is most desirable,
40 especially in the case of intermediate Court of Appeal, that the final Court
of Appeal, which is the Supreme Court, should have the benefit of the
opinion of that court on points raised before it, should it come up for
further consideration by this Court.

45 Since this dictum subsequent dicta of the Supreme Court seem now to have

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Eko, JSC

obligated the Court of Appeal, as an intermediate court, to “pronounce on all issues”

raised before it: Xtoudos Service (Nig.) Ltd. v. Taisei W.A. Ltd (2006) WRN 46 at
37; (2006) 15 NWLR (Pt.1003) 533; Adegbuyi v. APC & Ors (2014) LPELR –
24214 (SC) at 14 (2015) 2 NWLR (Pt. 1442) 1; Brawal Shipping (Nig.) Ltd. v. F.I.
5 Onwadike Co. Ltd & Anor. (2000) LPELR - 802 (SC (2000) 11 NWLR (Pt. 678)
387; Edem v. Canon Balls Ltd. (2005) 6 SC (Pt. 11) 16, (2005) 12 NWLR (Pt. 938)
27; Osareren v. FRN (2018) LPELR – 4383 (SC), etc. (2018) 10 NWLR (Pt. 1627)
221.

10 In Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555 this court seems to have
adopted a stance that once the respondent incorporated in his brief preliminary
objection and arguments thereon which brief at the hearing of the appeal he adopted;
the fact that he did not seek leave to move the preliminary objection by adopting
the arguments on it, as are contained in his brief, will not derogate from the duty
15 of the court to give consideration to the preliminary objection on its merits, Achike,
JSC spoke on this pages 571 - 572 of the report thus –

Since the essence of a preliminary objection is to bring the objection to

the appellant’s notice before the appeal takes off, once such notice of
20 objection is incorporated in the respondent’s brief the appellant cannot
be heard to deny being aware of the notice merely because it did not
strictly conform with the specific procedural Rule of Court. That will be
taking refuge under technical rule of procedure. Suffice to say courts for
a long time have shifted emphasis from undue reliance on technicalities
25 to doing substantial justice to the parties, having regard to the
circumstances of the case.

The learned jurist then added that the “respondent’s failure to comply with the
procedural provisions under (the Rules) will not derogate from the duty of (the)
30 court to give consideration to the preliminary on its merit”. Ejiwunmi, JSC at page
570 of the report had earlier spoken in the same refrain. I am therefore emboldened
to say that the lower court, at pages 495 - 496 of the record, was in error when it
declared that the appellant, as the 1st respondent, had abandoned his preliminary
objection, notwithstanding that his senior counsel had at 472 of the record, in
35 adopting the 1st respondent’s brief, drew attention to the preliminary objection
therein and had urged “the court to strike out the (offensive) grounds of appeal.”

I had earlier stated that the preliminary objection argued by the appellant, as the
1st respondent, was unavailing, since the 4 grounds of appeal challenged could
40 not have terminated the appeal in limine. The objection thereto should not have
been brought by way of notice of preliminary objection but by way of motion on
notice. Upon my perusal of the appellant’s brief, it is my considered view that the
appellant has failed to show in this appeal in what manner he suffered any
miscarriage of justice by the failure of the lower court to consider his preliminary
45 objection.

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Eko, JSC

The complaint under issue 2 revolves round the 1st respondent/appellant’s notice
to contend at the lower court that the judgment of the trial court be affirmed on
grounds other than the grounds the judgment was predicated on. The lower court
notwithstanding its reasoning that the notice was improper still considered it on
5 the merits and thereafter dismissed it. By this, the issue is no longer that the
appellant, on the notice to contend, was denied fair hearing. He was not.

On the foregoing I hereby endorse the judgment just delivered by my learned

brother, Uwani Musa Abba Aji. JSC. I also endorse all the consequential orders
10 made therein.

Cases cited in the Judgment

A.C.B. Ltd & Ors v. lhekwoaba & Ors (2003) LPELR 203(SC), (2003) 16 NWLR
(Pt. 846) 249
15 A.G. Rivers State v. Ude & Ors (2006) LPELR-626(SC), (2006) 17 NWLR (Pt.
1008) 436
Abdulrahman v. Oduneye (2009) 17 NWLR (Pt. 1170) 220
Abuul v. Bensu (2003) 16 NWLR (Pt. 845) 59
Adegbuyi v. APC & Ors (2014) LPELR – 24214 (SC); (2015) 2 NWLR (Pt. 1442) 1
20 Agboola v. UBA Plc (2011) 11 NWLR (Pt. 1258) 375
Andrew N. Okonkwo v. Co-operative & Commerce Bank Nig. Plc & Ors. (2003) 8
NWLR (Pt.822) 347
Awojugbagbe Light Industries Ltd. v. Chinukwe & Anor. (1995) LPELR-650 (SC);
(1995) 4 NWLR (Pt. 390) 379
25 Babatunde & Anor v. Bank of the North Ltd. & Ors. (2011) LPELR - 8249 (SC);
(2011) 18 NWLR (Pt.1279) 738
Brawal Shipping (Nig.) Ltd. v. F.I. Onwadike Co. Ltd & Anor. (2000) LPELR - 802
(SC); (2000) 11 NWLR (Pt. 678) 387
Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246
30 Cameroon Airlines v. Otutuizu (2011) 1 CLRN 1
Carew v. Oguntokun (2011) 5 NWLR (Pt. 1240) 405
Dakolo v. Rewane-Dakolo (2011) 16 NWLR (Pt. 1271) 22
Dongtoe C.S.C, Plateau State (2001) FWLR at 1663; (2001) 9 NWLR (Pt.717) 132
Edem v. Canon Balls Ltd. (2005) 6 SC (Pt. 11) 16, (2005) 12 NWLR (Pt. 938) 27
35 Ekaeteh v. Nigeria Housing Development Society Ltd. (1973) 6 S.C. 183
Eze & Ors v. Obiejuna & Ors. (1995) LPELR-1191 (SC); (1995) 6 NWLR (Pt. 404) 639
FMBN v. Babatunde (1999) 12 NWLR (Pt. 632) 683
Galadima v. Tambai (2000) 1 SC 1 (2000) 11 NWLR (Pt.677) 1
Ibiyeye v. Fajule (2006) 3 NWLR (Pt. 968) 640
40 James Odunayo v. The State (1972) LPELR - 15509 (SC)
lbiyeye v. Fojule (2006) 3 NWLR (Pt. 968) 640
ldowu v. Jaiyeola (1970) 1 ALR (Comm) 289
Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555
Majekodunmi v. Co-op Bank (1997) 10 NWLR (Pt.524) 198
45 Momoda Raji v. M. Williams & Ors. 16 NLR 149

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N.I.C. v. Aminu (2012) 8 NWLR (Pt. 1302) 330

Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314
NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627
Nig. Advert Services Ltd. v. UBA PIc (1999) 8 NWLR (Pt.616) 546
5 Nigerian Advertising Services Ltd v. UBA Ltd (2005) 14 NWLR (Pt. 945) 421
NNPC and Anor v. Famfa Oil (2012) 5 CLRN 1
NUT Taraba State & ors v. Habu & Ors (2018) LPELR-44057 (SC); (2018) 15
NWLR (Pt.1642) 381
Odetayo v. Bamidele (2007) 17 NWLR (Pt.1 062) 77
10 Odunukwe v. Ofomata (2010) 18 NWLR (1225) 404
Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166
Okonkwo v. Cooperative & Commerce Bank (Nig.) PIc & Ors (2003) LPELR-2484
(SC); (2003) 8 NWLR (Pt. 822) 347
Olagbaju v. Abass (2011) 16 NWLR (Pt. 1274) 453
15 Onochie & Ors. v. Odogwu & Ors. (2006) LPELR-2689(SC); (2006) 6 NWLR (Pt.
975) 65
Orianzi v. A.G. Rivers State & Ors (2017) LPELR-41137 (SC); (2017) 6 NWLR
(Pt.1561) 224
Osareren v. FRN (2018) LPELR – 4383 (SC); (2018) 10 NWLR (Pt. 1627) 221
20 Osuji Okoro Oforkire & Anor v. John Maduike & Ors (2003) 5 NWLR (Pt.812) 166
Rafukka v. Kurfi (1996) 6 NWLR (Pt. 453) 235
Registered Trustees of the Airline Operators of Nigeria in Nigerian Airspace
Management Agency (2014) 8 NWLR (Pt.1408) 1
Sanusi v. Daniel (1956) SCNL 288; (1956) 1 NSCC 85; (1959) 1 FSC 93
25 Savannah Bank of Nig. Ltd v. Ajilo (1989) 1 NWLR (Pt. 97) 305
Shema & Ors v. FRN (2018) LPELR-43723 (SC); (2018) 9 NWLR (Pt. 1624) 337
Solanke v. Abed (1962) 1 All NLR (1962) 1 SCNLR 371
Taiwo v. Adegboro (1997) 11 NWLR (Pt. 528) 224
Temco Engineering and Co. Ltd v. Savannah Bank of Nigeria Ltd (1995) 5 NWLR
30 (Pt. 397) 607
Universal Trust Bank v. Awanija Enterprises Ltd (1994) 1 NWLR (Pt. 346) 56
Viatonu v. Odutayo (1950) 19 NLR 119
W.A.B. Ltd. v. Savannah Ventures Ltd. (2002) 10 NWLR (Pt. 775) 401
Wema Bank PIc v. Abiodun (2006) 9 NWLR (Pt. 984) 1
35 Xtoudos Service (Nig.) Ltd. v. Taisei W.A. Ltd (2006) WRN 46 at 37; (2006) 15
NWLR (Pt.1003) 533
Yaro v. Arewa Construction Ltd. & Ors (2007) LPELR-3516(SC), (2007) 17 NWLR
(Pt. 1063) 333

40 Foreign cases cited in the Judgment

Bexwell v. Christie (1776) 1. Compo 395; 98 ER 1150
Cuckmere Brick Co. v. Mutual Finance (1971) 2 All ER
Kennedy v. De Trafford (1987) AC 180
Warner v. Jacob (1992) 20 Ch, D. 220
45

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Statutes cited in the Judgment

Section 19 of the Auctioneers Law Cap. 12 Laws of Eastern Nigeria 1961
Section 19(1) of the Sales by Auction Ordinance
Sections 19, 20 and 21 of the Auctioneers Law
5 Section 21(1) of the Conveyancing Act 1881
Section 22 of the Supreme Court Act 2004
Section 22(i), 28 & 44 of the Land Use Act 1978
Section 36(1) & 44(2) (c) of the Constitution of the Federal Republic of Nigeria 1999
Section 126(1) of the Kaduna State Law of Property Edict
10
Books referred to in the Judgment
A. Berg, “Duties of a Mortagee and a Receiver” (1993) JBL 213
Cootes on Mortgages, Vol. 2, 9th edition, page 927
E. Essien, Law of Credit and Security in Nigeria (Uyo: Golden Educational
15 publishers. 2000) 234
Fisher and Lightwood. The Law of Mortgages, (London: Sweet and Maxwell)
Chapters 21 and 22
I. O. Smith, Nigerian Law of Secured Credit (Lagos Ecowatch Publications (Nig.)
Ltd. 2001) 80-83
20 O.G. Amokaye “Duty of Mortgagee Exercising Power of Sale”. (2003) Vol. 22
JPPL 96
P. Butt, “The Mortgagee’s Duty of Sale.” in (1979) 53 ALJ 172
Skyes “The Law of Securities” (5th ed. 1993)

25 History:

HIGH COURT
Federal High Court (Kaduna Division)
Adamu, J
30
COURT OF APPEAL (Kaduna Division)

SUPREME COURT OF NIGERIA

Olabode Rhodes-Vivour, JSC (Presided)
35 Chima Centus Nweze, JSC
Amina Adamu Augie, JSC
Ejembi Eko, JSC
Paul Adamu Galumje, JSC
Sidi Dauda Bage, JSC
40 Uwani Musa Abba Aji, JJ.SC (Read the lead Judgment)

Counsel:
P. B. Daudu, SAN with A. M. Isah, Esq., T. E. Iyoha-Asagie, Esq. and J.S. Ajileye,
Esq. for the Appellant
45 Yinus Ustaz Usman SAN with Zainab Atuba, Esq., Dr. Aisha Maikudi and J. Z.

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Malleks. Esq. for the 1st Respondent

O. I. Habeeb, Esq. with Y. Ajibola, Esq. for the 2nd Respondent
Abdullahi Yahya, Esq. for the 3rd Respondent

10

15

20

25

30

35

40

45

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AIRTEL NETWORKS LTD v. MUSICAL COPYRIGHT SOCIETY OF NIG.

COURT OF APPEAL
(LAGOS DIVISION)
5
CA/L/467/2009
MONDAY 8TH JULY, 2019

(YAKUBU; ABUBAKAR; TOBI, JJ.CA)

10
APPEAL – Notice – A respondent who intends to challenge the grounds of appeal
must do so by notice of motion and not by filing a notice of preliminary objection.

APPEAL – Challenge – An issue challenging specific grounds of appeal not properly

15 laid before the court is incompetent and will be discountenanced.

APPEAL – Issues – Where the consideration and determination of an issue will

resolve an appeal, the court is not bound to consider all the issues raised.

20 LITIGATION – Pending Application – A judge is obligated to hear and determine

all pending applications on a matter before delivering judgment and failure to do so
is a breach of fair hearing.

LITIGATION – Fair Hearing – Breach of fair hearing nullifies all proceedings and
25 render them liable to be set aside by an appellate court.

LITIGATION – Pending Application – Even where an application is filed after

preparation of judgment, the judge is bound to hear and determine the application
before delivering judgment.
30
LITIGATION – Justice – A court of law should not sacrifice fairness and justice on
the ground of speedy dispensation of a matter.

LITIGATION – Stay of Proceedings – A trial court is bound to suspend proceedings

35 in a matter where an application for stay of proceedings has been filed to a higher
court on the matter.

LITIGATION – Fair Hearing – The attributes of fair hearing are that parties must
be given the opportunity to be heard on all material issues, equal treatment,
40 opportunity and consideration must be accorded parties, proceedings must be heard
in public with parties given adequate access and justice must be manifestly seen
and believed to be done.

LITIGATION – Fair Hearing – Party alleging breach of fair hearing has the onus to
45 prove.

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LITIGATION – Fair Hearing – A party cannot allege breach of fair hearing where
he has been afforded the opportunity to be heard but failed to utilize it.

Facts:
5
The appellant is a company engaged in the business of telecommunications and
in order to advance its business operations, engaged the services of Messrs Centre-
Spread FCB, to carry out advertisement services for it. The respondent was
contacted by Messrs. Centre-Spread FCB for permission to use the musical work
10 “Everything I do, I do for you”. The respondent claimed that the appellant was
already in breach of their copyright and when the parties could not amicably resolve
the issue, the respondent filed a suit against the appellant at the Federal High
Court, Lagos Division. The respondent claimed declarative and perpetual reliefs in
addition to general and specific damages. The appellant filed its statement of
15 defence and the matter proceeded to trial. After the conclusion of evidence, the
appellant filed an application seeking the leave of court to amend its statement of
defence. The application was refused and the appellant filed an appeal at the
Court of Appeal, Lagos Division. It also filed a stay of proceedings at the trial
court. The trial court heard the application but refused to grant it. Same application
20 was filed at the Court of Appeal.

The trial court continued with the matter and on close to delivering its judgment on
the suit when the appellant filed another application before the court for further
stay of proceedings. The court refused to hear the application and without waiting
25 for the Court of Appeal to hear and determine the appellant’s application for stay of
proceedings, delivered its judgment and awarded the sum of N100,000.000.00
(One Hundred Million Naira) in favour of the respondent as special and general
damages for the infringement of its copyright by the appellant. The appellant was
dissatisfied with the judgment of the trial court and as a result filed a notice of
30 appeal at the Court of Appeal, Lagos Division urging it to reverse the trial court.

One of the issues for determination is whether the judgment of the trial court is not
liable to be set aside on the ground that the trial judge disregarded pending
applications before him and the application for stay of proceedings filed at the
35 Court of Appeal which were duly brought to his notice before delivering the judgment.

Held (Unanimously allowing the appeal):

[1] Appeal – Notice – A respondent who intends to challenge the grounds

40 of appeal must do so by notice of motion and not by filing a notice
of preliminary objection.

The law has been well settled to the effect that if a Respondent intends to
challenge the competence of one or two of an Appellant’s grounds of
45 appeal and not against all the grounds of appeal, the proper mode placing

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such an application before the Appellate Court, is by filing a Notice of

Motion against such grounds of appeal only and not by filing a notice of
preliminary objection thereto Nwaolisah v. Nwabufoh (2011) LPELR- 2115
(SC) @ 52; National Electric Power Authority v. Ango (2001) 15 NWLR
5 (Pt. 737) 627. (P. 61 lines 44 - 45; P. 62 lines 1 - 6)

[2] Appeal – Challenge – An issue challenging specific grounds of appeal

not properly laid before the court is incompetent and will be
discountenanced.
10
In the instant case, since the ostensible challenge to grounds 1 and 2 of
the Appellant’s Notice of Appeal, has not been properly laid before the
Court vide the Respondent’s issue a, the same is hereby discountenanced
and not worthy of consideration, because the Court is not obliged to
15 consider any issue that has not been properly placed before it for its
consideration and determination. Ebba v. Ogodo (1984) 1 SCNLR 372 @
385; Overseas Construction Ltd v. Creek Enterprises Ltd (1985) 3 NWLR
(Pt.13) 407; Adeleke v. Asemota (1990) 3 NWLR (Pt.136) 94 @ 12; Hon.
Justice Theresa Uzuoamaka Uzokwe v. Dr. Afam Uzokwe (2016) LPELR-
20 40945 (CA) @ pp.23-24, paras. E-A. (P. 62 lines 6 - 14)

[3] Appeal – Issues – Where the consideration and determination of an

issue will resolve an appeal, the court is not bound to consider all
the issues raised.
25
My Lords, I am not unmindful of the admonition by the Supreme Court in
Brawal Shipping Ltd v. F. I. Onwadike Co. Ltd (2000) 11 NWLR (Pt. 678)
387 @ 403-404, per His Lordship, Uwaifo, J.S.C., to the effect that as a
general principle, this Court, not being the final, but the penultimate Court,
30 should consider and determine all issues which have been properly placed
and canvassed before it, so as not to risk its decision taken on only one
or two issues in the appeal, being overturned by the Apex Court, which
could be counterproductive, except where the issue pronounced upon by
this Court is with respect to the question of denial of fair hearing. In the
35 instant case, I am of the considered and firm opinion that the question of
the denial of fair hearing to the Appellant infirmed the decision of the court
below and rendered it a nullity. And since the case has to be remitted to
the court below for a retrial, it seems to me, to be improper, for us to
proceed further and consider the remaining issues in the appeal, in
40 advance, when the same suit shall be sent back to the court below, for a
trial de novo, by another judge of that court. I am satisfied that the
determination of Appellant’s issue i is sufficient to dispose of the appeal.
Tunbi v. Obawole (2000) 1 S.C. 1; (2000) LPELR- 3274 (SC) @ p.16,
paras. A-C; Udeh Kingsley Emeka v. The State (2014) LPELR- 23020
45 (SC) @ p.34, paras. D-E; Donbraye & Anor v. Preyor & Ors (2014) 25

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WRN 44; (2014) LPELR-22286 (CA).

(P. 66 lines 37 - 45; P. 67 lines 1 - 10)

[4] Litigation – Pending Application – A judge is obligated to hear and

5 determine all pending applications on a matter before delivering
judgment and failure to do so is a breach of fair hearing.

Indeed, the Appellant, having filed an appeal against the refusal of its first
application for a stay of further proceedings, by the learned trial judge,
10 had also applied to this Court, vide its application dated 17th March, 2009
at page 312 of the record of appeal, for a stay of further proceedings of the
case at the Court below, pending the outcome of the appeal in this Court.
Yet again, the Appellant filed another application at the Court below for a
stay of further proceedings on 22nd April, 2009 at pages 329 - 329 of the
15 record of appeal. This was the application that was pending as at the time
that the learned trial judge delivered his judgment on the case on 4th June,
2009, without hearing and determining it. That application can be said to
be a “booby-trap”. And it indeed caught the learned trial judge. He was
under a judicial obligation to have heard and come to a decision on it, one
20 way or another. This Court in Eriobuna v. Obiorah (1999) 8 NWLR (Pt.
616) 622 @ p.642, the cerebral jurist, Niki Tobi, JCA., (as then was) had
admonished thus:

“A court of law has a legal duty on our adjectival law to hear any
25 court process, including a motion before it. The process may be
downright stupid, unmeritorious or even an abuse of court process.
The court must hear the party or parties and rule one way or the
other. A judge, whether of a court of law or tribunal, has no
jurisdiction to come to a conclusion by resorting to his own wisdom
30 outside established due process, that a motion cannot be heard
because it has no merit.

That does not lie in the mouth of a Judge in our adversary system
of adjudication. The failure on the part of the learned tribunal to
35 hear the motion of the 1st appellant filed on 1st May, 1999, is
against the provisions of section 33(1) of the 1979 constitution on
fair hearing, and particularly the natural justice rule of Audi Alterem
Partem.”

40 It follows therefore that the law has remained well settled to the effect that
where any application whether by way of a motion on notice or vide a
preliminary objection, which had been properly placed before the court,
the same must be considered and determined by the court. Therefore,
the court, in its adjudicatory role, must consider and determine such a
45 matter duly placed before it by due process of law, whether it is foolish or

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childish and a failure to consider and determine such a matter, is tantamount

to a denial of fair hearing to the party who made the application and is
consequently and adversely affected by the court’s judgment. Dingyadi v.
Independent National Electoral Commission & Ors (No.2) (2010) 18 NWLR
5 (pt. 852) 346; (2003) 12 SCNJ 206 @ 238; NALSA & Team Associated v.
Nigerian National Petroleum Corporation (1991) LPELR - 1935 (SC); (1991)
8 NWLR (Pt. 212) 652 @ 676. (P. 63 lines 13 - 45; P. 64 lines 26 - 31)

The bottom line of the resolution of the sole issue in this appeal, is that
10 the learned trial judge was in error for refusing to consider the Appellant’s
second application for stay of further proceedings and that refusal was
clearly tantamount to a denial of the Appellant’s right to fair hearing, which
is constitutionally guaranteed by virtue of Section 36(1) of the 1999
Constitution of the Federal Republic of Nigeria, as amended.
15 (P. 66 lines 26 - 31)

[5] Litigation – Fair Hearing – Breach of fair hearing nullifies all

proceedings and renders them liable to be set aside by an appellate
court.
20
The consequences of a breach of fair hearing to a party, is that the
proceedings where it occurred will be declared a nullity and set aside by
the appellate court. Attorney General, Rivers State v. Ude (2006) LPELR
- 626 (SC); CITEC International Estate Ltd & Ors. v. Josiah O. Francis &
25 Ors. (2014) LPELR - 22 314 (SC); Salu v. Egeibon (1994) S.C.N.J. 223;
Adigun v. Attorney General, Oyo State (1987) 1 NWLR (Pt. 53) 678.

My Lords, fair hearing is the touchstone of justice hence, “the right to fair
hearing, being a fundamental constitutional right guaranteed by the
30 Constitution, the breach of it in any trial, investigation or inquiry and any
action taken on it is also a nullity.” - per the Learned Law Lord, Obaseki ,
J.S.C. in Adigun v. Attorney General, Oyo State (1987) 1 NWLR (Pt. 678)
@ 709. (P. 64 lines 9 - 14; P. 65 lines 25 - 29)

35 The resultant effect of any proceedings whereat, a party was denied his
right to fair hearing, is the nullification of such proceedings. Salu v. Egeibon
(1994) 6 NWLR (Pt.348) 23 @ 44; Ndakuba v. Kolomo (2008) 4 NWLR
(Pt. 915) 431; CITEC International Estate Ltd & Ors v. Francis & Ors
(2014) LPELR-22314 (SC). (P. 66 lines 32 - 35)
40
[6] Litigation – Pending Application – Even where an application is filed
after preparation of judgment, the judge is bound to hear and
determine the application before delivering judgment.

45 In the instant case, the learned trial judge, had felt that the Appellant was

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causing a delay to the hearing of the case on its merits by filing a second
application for a stay of further proceedings when his Lordship’s mind
was set on delivering his judgment on the case. That may well be so,
nevertheless, he ought to have heard and come to a decision on the
5 Appellant’s second application first before rendering his decision on the
merits of the case. This much was the admonition of his Lordship, Uwaifo,
JSC, in Mobil Production (Nigeria) UNLTD v. Monokpo (2003) 12 SC (Pt.
ii) 50 @ p.59, that:

10 “The prevailing view is that even when a Judgment has been

prepared, but before it is delivered, a motion is brought which
may be relevant to the substance of that judgment, the motion
should be considered and determined before the judgment may
or may not thereafter be delivered: see Mokwe v. Williams (1997)
15 11 NWLR (Pt 525) 309 at 321; Savannah Bank Nig. Ltd v. S.O
Corporation (2001) 1 NWLR (Pt 693)194 at 208.”
(P. 64 lines 16 - 30)

[7] Litigation – Justice – A court of law should not sacrifice fairness and
20 justice on the ground of speedy dispensation of a matter.

Of course, the learned trial judge was conscious of the fact that the case
needed to be concluded timeously, but that notwithstanding, fairness and
attainment of justice in any particular matter in court, cannot be sacrificed
25 on the altar of speed. The Apex Court in OOMF Ltd & Anor v. NACB Ltd &
Anor (2005) 12 NWLR (Pt. 1098) 412 @ 432, per His Lordship, WSN
Onnoghen, JSC. (as he then was) had cautioned that:

“Even though it is the desire of all involved in the administration of

30 justice to uphold the principle which states that justice delayed
is justice denied, it is equally unacceptable to encourage or do
injustice in an attempt at speedy dispensation of justice.

Justice may be slow sometimes but it will surely arrive at its

35 destination. In the instant case, the attempt at speedy trial· has
resulted in grave injustice to both parties particularly the Appellants
whose right to fair hearing had thereby been compromised by the
court. A little patience and care by the learned trial judge would
have saved time, energy and money if the court had but adjourned
40 the purported counter- claim…”
(P. 64 lines 32 - 45; P. 65 lines 1 - 4)

[8] Litigation – Stay of Proceedings – A trial court is bound to suspend

proceedings in a matter where an application for stay of proceedings
45 has been filed to a higher court on the matter.

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I think that since the attention of the learned trial judge was drawn to the
fact that the Appellant’s application for a stay of further proceedings, was
pending in this Court, it was incumbent on his Lordship, to have awaited
our decision on that application before taking any further step on the case
5 before him. Again, the Apex Court in Mohammed v. Olawunmi (1993) 4
NWLR (Pt. 287) 254 @ 278-279, per the Learned Law Lord, Olatawura,
JSC., counseled thus:

“Where there is an application before the Court of Appeal for a

10 stay of proceedings in the High Court, a decision by the High
Court which will render the result of the application nugatory should
be avoided. This means that the High Court should not engage
itself in speculation by concluding or assuming that that
application before the Court of Appeal is bound to fail.
15
This is because an appeal against a judgment or ruling is a complaint
against the decision, and the lower court should not therefore by any
means silence the complainant or force a party to abandon or renounce
his right to complain.” (P. 65 lines 6 - 23)
20
[9] Litigation – Fair Hearing – The attributes of fair hearing are that
parties must be given the opportunity to be heard on all material
issues, equal treatment, opportunity and consideration must be
accorded parties, proceedings must be heard in public with parties
25 given adequate access and justice must be manifestly seen and
believed to be done.

The Supreme Court, more recently in S & D Construction Co. Ltd v. Chief
Bayo Ayoku & Anor (2011) 6 SCNJ (Pt. 1) 268 at 291 - 292; reiterated the
30 essential attributes of fair hearing to the effect that: “The right to fair hearing
is a constitutional right enshrined in Section 36 of the 1999 Constitution.
The right to fair hearing is a very essential right for a person to secure
justice. The basic attributes of fair hearing include:

35 (a) That the Court shall hear both sides not only in the case
but also on all material issues in the case before reaching
decision which may be prejudiced to any party in the
case,

40 (b) That the Court or Tribunal gives equal treatment,

opportunity and consideration to all concerned,

(c) That the proceedings be heard in public and all concerned

shall be informed of and have access to such place of
45 hearing,

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Yakubu, JCA

(d) That having regard to all circumstances in every material

decision in the case, justice must not only be done but
must manifestly and undoubtedly be seen to have been
done.
5
Usman v. Duke (2004) 7 NWLR (Pt. 871) pg. 116; Fagbule v. Rodrigues
(2002) 7 NWLR (Pt. 765) pg. 188; Adeniran v. NEPA (2002) 14 NWLR (Pt.
786) pg. 30; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622)
pg. 290; Awoniyi v. The Registered Trustees of the Rosicrucian Order
10 (AMORC) (2000) 4 SC (Pt. 1) 103.
(P. 65 lines 31 - 45; P. 66 lines 1 - 10)

[10] Litigation – Fair Hearing – Party alleging breach of fair hearing has
the onus to prove.
15
The burden is on the party alleging breach of fair hearing in a case to
prove the breach and he must do so in the light of the facts of the case.
Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) pg. 443.
(P. 66 lines 12 - 14)
20
[11] Litigation – Fair Hearing – A party cannot allege breach of fair hearing
where he has been afforded the opportunity to be heard but failed to
utilize it.

25 The appellant cannot complain of breach of fair hearing where it was afforded
the opportunity to present its case and to also defend the counter claim,
but failed to avail itself of the opportunity. The appellant cannot blame the
Trial Court for failure to prosecute its case. Okoye v. Nigerian Construction
And Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) pg. 501; Omo v. Judicial
30 Service Commission Delta State (2000) 12 NWLR (Pt. 682) pg. 444; Ogolo
v. Fubara (2003) 11 NWLR (Pt. 31) pg, 231; Ossai v. Wakwah (2006) 4
NWLR (Pt. 969) pg, 208".

Further see: Sunday Soreyeun & Ors v. Chief Augustine A. Ajuebor (2019)
35 LPELR-16751 (CA) @ pp. 17-18, paras. B-E.
(P. 66 lines 14 - 24)

YAKUBU, JCA (Delivering the lead Judgment): The Appellant is involved in the
business of telecommunications and in the course of its business, it had to engage
40 the services of Messrs Centre-Spread FCB, to produce and carry out advertisement
for its operations. Messrs Centre-Spread FCB then approached the Performing
and Musical Right Society (PMRS) for a license to use the musical work -
‘Everything I do, I do for you’. The Respondent had claimed that the Appellant was
using the aforesaid musical work without its permission, consentIauthority and
45 that it constituted an infringement on its rights. The matter could not be resolved

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amicably between the parties. Hence the Respondent commenced an action at

the Federal High Court, holden at Lagos Division. It claimed a declaratory and a
perpetual reliefs, along with general and special damages against the Appellant,
who resisted the claim. The matter went on to trial. After the conclusion of evidence,
5 the Appellant filed an application dated 20th November, 2008 to enable it amend its
Statement of Defence. The application was refused by the learned trial judge. The
Appellant then appealed against that decision to this Court. It then filed an application
for stay of proceedings at the Court below. That application was refused. Thereafter,
the Appellant filed a similar application before this Court to the effect that the
10 action at the Court below be stayed, pending the hearing and determination of its
appeal against the decision of the learned trial judge, that had refused its application
to amend its pleadings. The Appellant, again filed another application at the Court
below, praying for a further stay of proceedings in respect of the Respondent’s
action. The Court below, in its consideration of the pending applications, delivered
15 its judgment on the main action in favour of the Respondent. It is against the
backdrop of the following that the Appellant, appealed against the judgment of the
Court below which was rendered on 4th June, 2009.

In order to facilitate the prosecution of the appeal, the Appellant’s brief of argument,
20 dated 19th October, 2012 was filed on 22 nd October, 2012. On its part, the
Respondent’s brief of argument, dated 7th October, 2016 and filed on 26th April,
2017 with the Appellant’s Reply brief dated 28th November, 2016 and filed on 29th
November, 2016, were both deemed by this Court as properly filed on 26th April,
2017.
25
Abiodun Olaleru, Esq., who prepared the Appellant’s brief of argument, identified
three issues therein, for the determination of the appeal, to wit:

(i) Whether the judgment of the lower court delivered on the 4th of
30 June, 2009 is not liable to be set aside on account of the decision
of the learned trial judge to totally disregard the pending
application before him for stay of proceedings and also disregard
a similar application before this Honourable Court which were
brought to his notice.
35
(ii) Whether the learned trial judge was right in refusing to uphold the
issue of illegality raised by the Appellant in the suit.

(iii) Whether the learned trial judge was right in awarding both special
40 and general damages on N100,000.000.00 (One Hundred Million
Naira) against the Appellant without any particulars of special
damages and any proof thereof.

On his part, the Respondent’s learned Senior Counsel Norrison I. Quakers, SAN.,
45 Oloruntobi Adebola (Miss), Onyeka Ofoegbu Esq., Bobo Ajuda Esq., Olatokunbo

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Fatai Esq., Onyinye Okonkwo (Miss) and Michael Ogunjobi, Esq. who settled the
Respondent’s brief of argument, also nominated three issues for the resolution of
the appeal, thus:

5 a. Whether the refusal of the lower Court to grant the Appellant’s

application for stay of proceedings has occasioned miscarriage
of justice to warrant the judgment of the lower Court being set
aside.

10 b. Whether the finding of fact by the lower Court that the Appellant
infringed on the right of the Respondent was perverse and therefore
the decision ought to be set aside.

c. Whether the award of N100,000,000.00 (One Hundred Million

15 Naira only) by the lower Court as general and special damages is
perverse and ought to be set aside by the Honourable Court.

Upon my perusal of the record of appeal wherein the Appellant’s applications in

this matter both at the Court below and in this Court; the judgment of Court below
20 dated 4th June, 2009; the Appellant’s grounds of appeal are contained, vis - a -vis
the three issues apiece, nominated by the respective counsel herein, I am satisfied
that the three issues suggested by the Appellant’s learned counsel, for the
determination of the appeal, are apt. I adopt them accordingly.

25 I have read the briefs of argument in respect of the appeal, which were duly adopted
by learned counsel to the respective parties at the hearing of the appeal on 27th
May, 2019. On my perusal of paragraphs 5.14 - 5.20 @ pages 11 to 13 of the
Respondent’s brief of argument, it appears that the learned Respondent’s counsel
raises an objection to Grounds 1 and 2 of the Appellant’s Notice of Appeal, on the
30 grounds that the aforesaid grounds of appeal are of mixed law and facts. Therefore,
according to him, the Appellant needed to have obtained the leave of the Court
below or of this Court before raising those grounds of appeal, by virtue of Sections
241(1)( b) & 242(1) of the 1999 Constitution of the Federal Republic of Nigeria, as
amended. And that the aforesaid grounds of appeal, without the leave of Court,
35 having been sought and obtained by the Appellant, before they were filed, were
incompetent and should be struck out.

The Appellant’s learned counsel, responding to the objection by the Respondent

to grounds 1 and 2 of its Notice of Appeal, submitted at paragraph 2.3 of the
40 Appellant’s Reply brief to the effect that the objection raised by the Respondent
ought to have been by a Notice of Motion, supported with an affidavit and not vide
the procedure adopted by the Respondent’s learned senior counsel.

It is expedient to dispose of this preliminary issue first. The law has been well
45 settled to the effect that if a Respondent intends to challenge the competence of

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one or two of an Appellant’s grounds of appeal and not against all the grounds of
appeal, the proper mode placing such an application before the Appellate Court, is
by filing a Notice of Motion against such grounds of appeal only and not by filing a
notice of preliminary objection thereto Nwaolisah v. Nwabufoh (2011) LPELR- 2115
5 (SC) @ 52; National Electric Power Authority v. Ango (2001) 15 NWLR (Pt. 737)
627. In the instant case, since the ostensible challenge to grounds 1 and 2 of the
Appellant’s Notice of Appeal, has not been properly laid before the Court vide the
Respondent’s issue a, the same is hereby discountenanced and not worthy of
consideration, because the Court is not obliged to consider any issue that has not
10 been properly placed before it for its consideration and determination. Ebba v.
Ogodo (1984) 1 SCNLR 372 @ 385; Overseas Construction Ltd v. Creek Enterprises
Ltd (1985) 3 NWLR (Pt.13) 407; Adeleke v. Asemota (1990) 3 NWLR (Pt.136) 94
@ 12; Hon. Justice Theresa Uzuoamaka Uzokwe v. Dr. Afam Uzokwe (2016)
LPELR- 40945 (CA) @ pp.23-24, paras. E-A.
15
In my consideration and determination of this appeal, I adopt the three issues
which the Appellant’s learned counsel, nominated for the resolution of the appeal.
Let us begin with issue (i). It is the same as the Respondent’s issue a. The grouse
of the Appellant is that after it was refused its application to amend its statement
20 of defence, it appealed against that decision to this Court. Thereafter, it had first
applied to the Court below for a stay of further proceedings in the case, but the
application was refused. Then it applied to this Court for a stay of proceedings of
the case at the Court below, pending the outcome of its appeal by this Court.
However, it again filed another application at the Court below for a stay of further
25 proceedings of the case, on the ground that a date had already been fixed for the
hearing of its motion for a stay of further proceedings in this Court. The Appellant’s
learned counsel contended that it is the second application that it filed at the
Court below for a stay of further proceedings of the case, that the learned trial
judge, refused to hear and consider before the judgment on the case was rendered
30 by the Court below. He referred to several decisions of the Supreme Court and this
Court, to the effect that a court of law, must hear and determine all pending
applications before it, prior to its judgment on the matter. Some of such authorities
are: Mobil Production (Nigeria) UnLtd v. Monokpo (2003) 18 NWLR (Pt. 852) 346;
(2003) 12 S.C. (Pt. II) 50 @ 86-88; Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616)
35 622 @ 642; Mokwe v. Williams (1997) 11 NWLR (Pt. 528) 309 @ 321.

The learned senior counsel to the Respondent, in his responses to the Appellant’s
contentions, submitted to the effect that since the learned trial judge had earlier
heard and determined a similar application at the Appellant’s instance, for a stay
40 of further proceedings in the case, and the Appellant’s appeal against that decision
was already pending in this Court, the learned trial judge had no power to hear any
other application for a stay of further proceedings at the Appellant’s instance. He
referred to Eze v. Okolonji (1997) 7 NWLR (513) 527. He therefore, insisted that
the learned trial judge, rightly declined to hear and determine the Appellant’s second
45 application for a stay of further proceedings in the case, hence according to him,

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there was no miscarriage of justice, against the Appellant.

Resolution of issue (i):

5 I have perused the relevant pages of the record of appeal, pertaining to this issue
and the submissions of learned counsel to the parties. Undeniably, the learned
trial judge did hear and determined the Appellant’s first application for a stay of
further proceedings of the case that was filed on 13th March, 2009. This was
considered and determined at pages 294 - 303 of the record of appeal. His Lordship
10 made a reference to the same Appellant’s application, in his judgment at page
408 of the record of appeal.

Indeed, the Appellant, having filed an appeal against the refusal of its first application
for a stay of further proceedings, by the learned trial judge, had also applied to this
15 Court, vide its application dated 17th March, 2009 at page 312 of the record of
appeal, for a stay of further proceedings of the case at the Court below, pending
the outcome of the appeal in this Court. Yet again, the Appellant filed another
application at the Court below for a stay of further proceedings on 22nd April, 2009
at pages 329 - 329 of the record of appeal. This was the application that was
20 pending as at the time that the learned trial judge delivered his judgment on the
case on 4th June, 2009, without hearing and determining it. That application can
be said to be a “booby-trap”. And it indeed caught the learned trial judge. He was
under a judicial obligation to have heard and come to a decision on it, one way or
another. This Court in Eriobuna v. Obiorah (1999) 8 NWLR (Pt. 616) 622 @ p.642,
25 the cerebral jurist, Niki Tobi, JCA., (as then was) had admonished thus:

“A court of law has a legal duty on our adjectival law to hear any court
process, including a motion before it. The process may be downright
stupid, unmeritorious or even an abuse of court process. The court must
30 hear the party or parties and rule one way or the other. A judge, whether of
a court of law or tribunal, has no jurisdiction to come to a conclusion by
resorting to his own wisdom outside established due process, that a
motion cannot be heard because it has no merit.

35 That does not lie in the mouth of a Judge in our adversary system of
adjudication. The failure on the part of the learned tribunal to hear the
motion of the 1st appellant filed on 1st May, 1999, is against the provisions
of section 33(1) of the 1979 constitution on fair hearing, and particularly
the natural justice rule of Audi Alterem Partem.”
40
It follows therefore that the law has remained well settled to the effect that where
any application whether by way of a motion on notice or vide a preliminary objection,
which had been properly placed before the court, the same must be considered
and determined by the court. Therefore, the court, in its adjudicatory role, must
45 consider and determine such a matter duly placed before it by due process of law,

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whether it is foolish or childish and a failure to consider and determine such a

matter, is tantamount to a denial of fair hearing to the party who made the application
and is consequently and adversely affected by the court’s judgment. Dingyadi v.
Independent National Electoral Commission & Ors (No.2) (2010) 18 NWLR (Pt.
5 852) 346; (2003) 12 SCNJ 206 @ 238; NALSA & Team Associated v. Nigerian
National Petroleum Corporation (1991) LPELR - 1935 (SC); (1991) 8 NWLR (Pt.
212) 652 @ 676.

The consequences of a breach of fair hearing to a party, is that the proceedings

10 where it occurred will be declared a nullity and set aside by the appellate court.
Attorney General, Rivers State v. Ude (2006) LPELR - 626 (SC); CITEC International
Estate Ltd & Ors. v. Josiah O. Francis & Ors. (2014) LPELR - 22 314 (SC); Salu
v. Egeibon (1994) S.C.N.J. 223; Adigun v. Attorney General, Oyo State (1987) 1
NWLR (Pt. 53) 678.
15
In the instant case, the learned trial judge, had felt that the Appellant was causing
a delay to the hearing of the case on its merits by filing a second application for a
stay of further proceedings when his Lordship’s mind was set on delivering his
judgment on the case. That may well be so, nevertheless, he ought to have heard
20 and come to a decision on the Appellant’s second application first before rendering
his decision on the merits of the case. This much was the admonition of his
Lordship, Uwaifo, JSC, in Mobil Production (Nigeria) UNLTD v. Monokpo (2003)
12 SC (Pt. ii) 50 @ p.59, that:

25 “The prevailing view is that even when a Judgment has been prepared, but
before it is delivered, a motion is brought which may be relevant to the
substance of that judgment, the motion should be considered and
determined before the judgment may or may not thereafter be delivered:
see Mokwe v. Williams (1997) 11 NWLR (Pt 525) 309 at 321; Savannah
30 Bank Nig. Ltd v. S.O Corporation (2001) 1 NWLR (Pt 693)194 at 208.”

Of course, the learned trial judge was conscious of the fact that the case needed
to be concluded timeously, but that notwithstanding, fairness and attainment of
justice in any particular matter in court, cannot be sacrificed on the altar of speed.
35 The Apex Court in OOMF Ltd & Anor v. NACB Ltd & Anor (2005) 12 NWLR (Pt.
1098) 412 @ 432, per His Lordship, WSN Onnoghen, JSC. (as he then was) had
cautioned that:

“Even though it is the desire of all involved in the administration of justice

40 to uphold the principle which states that justice delayed is justice denied,
it is equally unacceptable to encourage or do injustice in an attempt at
speedy dispensation of justice.

Justice may be slow sometimes but it will surely arrive at its destination.
45 In the instant case, the attempt at speedy trial· has resulted in grave

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injustice to both parties particularly the Appellants whose right to fair

hearing had thereby been compromised by the court. A little patience and
care by the learned trial judge would have saved time, energy and money
if the court had but adjourned the purported counter- claim…”
5
I think that since the attention of the learned trial judge was drawn to the fact that
the Appellant’s application for a stay of further proceedings, was pending in this
Court, it was incumbent on his Lordship, to have awaited our decision on that
application before taking any further step on the case before him. Again, the Apex
10 Court in Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254 @ 278-279, per
the Learned Law Lord, Olatawura, JSC., counseled thus:

“Where there is an application before the Court of Appeal for a stay of

proceedings in the High Court, a decision by the High Court which will
15 render the result of the application nugatory should be avoided. This means
that the High Court should not engage itself in speculation by concluding
or assuming that that application before the Court of Appeal is bound to
fail.

20 This is because an appeal against a judgment or ruling is a complaint

against the decision, and the lower court should not therefore by any
means silence the complainant or force a party to abandon or renounce
his right to complain.”

25 My Lords, fair hearing is the touchstone of justice hence, “the right to fair hearing,
being a fundamental constitutional right guaranteed by the Constitution, the breach
of it in any trial, investigation or inquiry and any action taken on it is also a nullity.”
- per the Learned Law Lord, Obaseki , J.S.C. in Adigun v. Attorney General, Oyo
State (1987) 1 NWLR (Pt. 678) @ 709.
30
The Supreme Court, more recently in S & D Construction Co. Ltd v. Chief Bayo
Ayoku & Anor (2011) 6 SCNJ (Pt. 1) 268 at 291 - 292; reiterated the essential
attributes of fair hearing to the effect that: “The right to fair hearing is a constitutional
right enshrined in Section 36 of the 1999 Constitution. The right to fair hearing is a
35 very essential right for a person to secure justice. The basic attributes of fair
hearing include:

(a) That the Court shall hear both sides not only in the case but also
on all material issues in the case before reaching decision which
40 may be prejudiced to any party in the case,

(b) That the Court or Tribunal gives equal treatment, opportunity and
consideration to all concerned,

45 (c) That the proceedings be heard in public and all concerned shall

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be informed of and have access to such place of hearing,

(d) That having regard to all circumstances in every material decision

in the case, justice must not only be done but must manifestly
5 and undoubtedly be seen to have been done.

Usman v. Duke (2004) 7 NWLR (Pt. 871) pg. 116; Fagbule v. Rodrigues (2002) 7
NWLR (Pt. 765) pg. 188; Adeniran v. NEPA (2002) 14 NWLR (Pt. 786) pg. 30;
Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) pg. 290; Awoniyi v. The
10 Registered Trustees of the Rosicrucian Order (AMORC) (2000) 4 SC (Pt. 1) 103.

The burden is on the party alleging breach of fair hearing in a case to prove the
breach and he must do so in the light of the facts of the case. Maikyo v. Itodo
(2007) 7 NWLR (Pt. 1034) pg. 443. The appellant cannot complain of breach of fair
15 hearing where it was afforded the opportunity to present its case and to also
defend the counter claim, but failed to avail itself of the opportunity. The appellant
cannot blame the Trial Court for failure to prosecute its case. Okoye v. Nigerian
Construction And Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) pg. 501; Omo v.
Judicial Service Commission Delta State (2000) 12 NWLR (Pt. 682) pg. 444;
20 Ogolo v. Fubara (2003) 11 NWLR (Pt. 31) pg, 231; Ossai v. Wakwah (2006) 4
NWLR (Pt. 969) pg, 208".

Further see: Sunday Soreyeun & Ors v. Chief Augustine A. Ajuebor (2019) LPELR-
16751 (CA) @ pp. 17-18, paras. B-E.
25
The bottom line of the resolution of the sole issue in this appeal, is that the
learned trial judge was in error for refusing to consider the Appellant’s second
application for stay of further proceedings and that refusal was clearly tantamount
to a denial of the Appellant’s right to fair hearing, which is constitutionally guaranteed
30 by virtue of Section 36(1) of the 1999 Constitution of the Federal Republic of
Nigeria, as amended. Therefore, issue (i) in the appeal is resolved in favour of the
Appellant. The resultant effect of any proceedings whereat, a party was denied his
right to fair hearing, is the nullification of such proceedings. Salu v. Egeibon (1994)
6 NWLR (Pt.348) 23 @ 44; Ndakuba v. Kolomo (2008) 4 NWLR (Pt. 915) 431;
35 CITEC International Estate Ltd & Ors v. Francis & Ors (2014) LPELR-22314 (SC).

My Lords, I am not unmindful of the admonition by the Supreme Court in Brawal

Shipping Ltd v. F. I. Onwadike Co. Ltd (2000) 11 NWLR (Pt. 678) 387 @ 403-404,
per His Lordship, Uwaifo, J.S.C., to the effect that as a general principle, this
40 Court, not being the final, but the penultimate Court, should consider and determine
all issues which have been properly placed and canvassed before it, so as not to
risk its decision taken on only one or two issues in the appeal, being overturned
by the Apex Court, which could be counterproductive, except where the issue
pronounced upon by this Court is with respect to the question of denial of fair
45 hearing. In the instant case, I am of the considered and firm opinion that the

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question of the denial of fair hearing to the Appellant infirmed the decision of the
court below and rendered it a nullity. And since the case has to be remitted to the
court below for a retrial, it seems to me, to be improper, for us to proceed further
and consider the remaining issues in the appeal, in advance, when the same suit
5 shall be sent back to the court below, for a trial de novo, by another judge of that
court. I am satisfied that the determination of Appellant’s issue i is sufficient to
dispose of the appeal. Tunbi v. Obawole (2000) 1 S.C. 1; (2000) LPELR- 3274
(SC) @ p.16, paras. A-C; Udeh Kingsley Emeka v. The State (2014) LPELR-
23020 (SC) @ p.34, paras. D-E; Donbraye & Anor v. Preyor & Ors (2014) 25 WRN
10 44; (2014) LPELR-22286 (CA).

In the final result, the appeal is hereby allowed. The judgment delivered at the
Federal High Court, Lagos Division, delivered by Auta J, on 4th June, 2009 is
hereby set aside.
15
The aforesaid suit, is accordingly remitted to Chief Judge of the Federal High
Court, and shall be reassigned to another Judge of that court, for it to be retried.

Each side shall bear its costs of the appeal.

20
ABUBAKAR, JCA: My learned brother TOM SHAIBU YAKUBU, JCA granted me
the privilege of having a preview of the leading Judgment just rendered in this
appeal. I am in complete agreement with the reasoning and conclusion and therefore
adopt the Judgment as my own. I have nothing extra to add.
25
TOBI, JCA: I have had the privilege of going through, in details in draft the lead
judgment of my learned brother, TOM SHAIBU YAKUBU, JCA. I do not find any
reason to disagree with the logical conclusion reached by his lordship. I stand by
his judgment and accordingly, this appeal is hereby allowed and the decision of
30 the lower court set aside. I abide by the consequential order made therein.

Cases cited in the Judgment

Adeleke v. Asemota (1990) 3 NWLR (Pt.136) 94
Adeniran v. NEPA (2002) 14 NWLR (Pt. 786) 30
35 Adigun v. Attorney General, Oyo State (1987) 1 NWLR (Pt. 678) 709
Attorney General, Rivers State v. Ude (2006) LPELR - 626 (SC)
Awoniyi v. The Registered Trustees of the Rosicrucian Order (AMORC) (2000) 4
SC (Pt. 1) 103
Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290
40 Brawal Shipping Ltd v. F. I. Onwadike Co. Ltd (2000) 11 NWLR (Pt. 678) 387
CITEC International Estate Ltd & Ors. v. Josiah O. Francis &.Ors. (2014) LPELR
– 22314 (SC)
Dingyadi v. Independent National Electoral Commission & Ors (No.2) (2010) 18
NWLR (Pt. 852) 346; (2003) 12 SCNJ 206
45 Donbraye & Anor v. Preyor & Ors (2014) 25 WRN 44; (2014) LPELR-22286 (CA)

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Ebba v. Ogodo (1984) 1 SCNLR 372

Eriobuna v. Obiorah (1999) 8 NWLR (Pt. 616) 622
Eze v. Okolonji (1997) 7 NWLR (513) 527
Fagbule v. Rodrigues (2002) 7 NWLR (Pt. 765) 188
5 Hon. Justice Theresa Uzoamaka Uzokwe v. Dr. Afam Uzokwe (2016) LPELR-
40945 (CA)
Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) 443
Mobil Production (Nigeria) Unltd v. Monokpo (2003) 18 NWLR (Pt. 852) 346; (2003)
12 S.C. (Pt. II) 50
10 Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254
Mokwe v. Williams (1997) 11 NWLR (Pt 525) 309
NALSA & Team Associated v. Nigerian National Petroleum Corporation (1991)
LPELR - 1935 (SC); (1991) 8 NWLR (Pt. 212) 652
National Electric Power Authority v. Ango (2001) 15 NWLR (Pt. 737) 627
15 Ndakuba v. Kolomo (2008) 4 NWLR (Pt. 915) 431
Nwaolisah v. Nwabufoh (2011) LPELR- 2115 (SC) 52
Ogolo v. Fubara (2003) 11 NWLR (Pt. 31) 231
Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501
Omo v. Judicial Service Commission Delta State (2000) 12 NWLR (Pt. 682) 444
20 OOMF Ltd & Anor v. NACB Ltd & Anor (2005) 12 NWLR (Pt. 1098) 412
Ossai v. Wakwah (2006) 4 NWLR (Pt. 969) 208
Overseas Construction Ltd v. Creek Enterprises Ltd (1985) 3 NWLR (Pt.13) 407
S & D Construction Co. Ltd v. Chief Bayo Ayoku & Anor (2011) 6 SCNJ (Pt. 1) 268
Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23
25 Savannah Bank Nig. Ltd v. S.O Corporation (2001) 1 NWLR (Pt 693) 194
Sunday Soreyeun & Ors v. Chief Augustine A. Ajuebor (2019) LPELR-16751 (CA)
Tunbi v. Obawole (2000) 1 S.C. 1; (2000) LPELR- 3274 (SC) 16
Udeh Kingsley Emeka v. The State (2014) LPELR- 23020 (SC) 34
Usman v. Duke (2004) 7 NWLR (Pt. 871) 116
30
Statutes cited in the Judgment
Sections 36(1). 241(1)(b) & 242(1) of the Constitution of the Federal Republic of
Nigeria 1999
Section 33(1) of the Constitution of the Federal Republic of Nigeria 1979
35
History:

HIGH COURT
Federal High Court (Lagos Division)
40 Auta, J

COURT OF APPEAL (Lagos Division)

Tom Shaibu Yakubu, JCA (Presided & Read the lead Judgment)
Tijjani Abubakar, JCA
45 Ebiowei Tobi, JCA

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Counsel:
A. Olaleru, Esq. with O. Sunmola, Esq. and I. M. Kumute Esq. for the Appellant
O. Ogungbe Esq. with C. Ikefuna, Esq. and M.O Abu, Esq. for the Respondent.

10

15

20

25

30

35

40

45

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BARNAX AIRLINES LTD v. MOBIL OIL NIGERIA PLC; THE LION OF

AFRICAN INSURANCE COMPANY LIMITED

COURT OF APPEAL
5 (LAGOS DIVISION)

CA/L/432/2005
WEDNESDAY 3RD JULY, 2019

10 (YAKUBU; OGAKWU; EBIOWEI, JJ.CA)

APPEAL – Ground of Appeal – In order to determine whether a ground of appeal is

purely law or mixed law and fact, the court must scrutinize the ground of appeal
and its particulars.
15
APPEAL – Interference – An appellate court will not interfere with the right decision
and exercise of discretion by a lower court.

GROUND OF APPEAL – Issue – A ground of appeal with no issue derived therefrom

20 is deemed abandoned.

GROUND OF APPEAL – Issue – Any issue raised and argument canvassed

therefrom must relate to and be derived from a ground of appeal otherwise such
issue and argument are incompetent and will be discountenanced.
25
LITIGATION – Relisting – In considering an application for relisting, the court
has absolute discretion to grant or refuse, provided such discretion is exercised
judicially and judiciously based on cogent and credible evidence adduced by the
applicant and whether the grant is prejudicial to the other party.
30
LITIGATION – Notice of Discontinuance – Once filed by a claimant, cannot be
revoked.

LITIGATION – Unsigned Process – is worthless and of no probative value.

35
LITIGATION – Signature – The importance and reason for signing a document is
to authenticate and validate it as emanating from the person who signed it.

LITIGATION – Diligent Prosecution – A claimant must take necessary step and

40 act timeously in prosecuting his claim.

Facts:

The appellant’s Boeing 737 Aircraft with serial No. 19549 and registered as 5N-
45 D10 which was parked at the Port Harcourt International Airport was damaged by

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the 1st respondent’s mobile fuel browser with registration No. PHA/1 thereby
rendering it unusable. In January, 1992 in a bid to resolve the issue of liability
arising from the damage, all the parties involved met and agreed that the damaged
aircraft would be replaced at the cost of $5,550,000 (Five Million, Five Hundred
5 and Fifty Thousand United States Dollars) by February 1992 under certain
conditions: evidence of last mechanical check and verification of the documents
relating to the cost of the aircraft. It was also agreed that loss of revenue as a
result of the damage will cease by the last day of January, 1992 provided a lump
sum of N5,489,624.00 (Five Million, Four Hundred and Eighty Nine Thousand, Six
10 Hundred and Twenty Four Naira) was paid to the appellant on or before the 15th
day of February, 1992. The respondents defaulted in payment and the appellant
filed a suit against the respondents at the Federal High Court, Port Harcourt Division.

The appellant claimed the reliefs stated in the agreement or in the alternative,
15 $5,580,400 (Five Million, Five Hundred and Eighty Thousand, Four Hundred United
States Dollars) being the estimated cost for the repair of the aircraft; N26,986,000
(Twenty - Six Million, Nine Hundred and Eighty Six Thousand Naira) for loss of use
of aircraft for the period between 2nd January 1992 to 12th May 1992; N10,000,000.00
(Ten Million Naira) being loss of business reputation and any other reliefs the court
20 deems fit to grant. The respondents filed their defence and preliminary applications.
The suit was transferred to Lagos Division of the Federal High Court for hearing de
novo.

After several adjournments, the matter eventually came up for mention in Lagos
25 on the 2nd day of March, 1994 but counsel for the appellant was absent in court as
he was said to have died before the date and his chambers locked up by his
family. The matter was adjourned for mention and on the due date, there was no
representation for the appellant. The court struck out the suit on the application of
counsel for the respondents.
30
In 2004, about ten years later, the appellant filed a motion on notice to relist the
suit. The application was challenged by the respondents. On the 27th of July, 2004
the date on which the ruling was to be delivered, the appellant filed another
application wherein it sought an order to arrest and suspend any ruling on its
35 earlier application to be delivered by the court. The application was challenged by
the respondents. The court heard the parties on the new application and on the
19th day of October, 2004 delivered its ruling wherein it dismissed all the appellant’s
applications. The appellant was dissatisfied with the ruling and consequently filed
a notice of appeal at the Court of Appeal, Lagos Division.
40
One of the issues for determination is whether the learned trial judge was right to
have refused to grant the appellant’s application to relist the suit in light of the
provisions of the Federal High Court Civil Procedure Rules.

45 Held (Unanimously dismissing the appeal):

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[1] Appeal – Ground of Appeal – In order to determine whether a ground

of appeal is purely law or mixed law and fact, the court must scrutinize
the ground of appeal and its particulars.

5 The law has been well settled that in order to decipher whether or not a
ground of appeal is of law or mixed law and facts or purely law, it is
incumbent on the appellate court to interrogate and scrutinize the grounds
of appeal with their respective particulars before it determines whether
any particular ground of appeal is of facts, mixed law and facts or purely
10 law. The decided authorities on this principle are a basketful. So, just a
few of them will suffice. Paul Nwadike & Ors v. Cletus Ibekwe & Ors
(1987) 12 S.C. 14; Ogbechie & Ors v. Gabriel Onochie & Ors (1996) 3
S.C. 54; Kashasadi v. Noma (2007) 13 NWLR (Pt.1052) 510; Nwaolisah
v. Nwabufoh (2011) LPELR- 2115 (SC) @ 26-27, para, D-B; Kerian Ikpara
15 Obasi v. Mikson Establishment Industries Ltd (2016) 16 NWLR (Pt.1539)
335 @ 382-383. The Supreme Court in allaying doubts on the determination
of a ground of appeal whichever is of facts, mixed law and facts or purely
law had to set out the guiding principles in the determination of such
grounds of appeal in some of its decisions, such as Mr. Ime Umanah Jnr.
20 v. Nigeria Deposit Insurance Corporation (2016) 14 NWLR (Pt.1533) 458
@ 477-478, per Rhodes - Vivour , J.S.C., thus:

“In Ogbechie & Ors v. Onochie & Ors (supra) this court adopted
the explanation and, the way to identify grounds of appeal by the
25 authors of the Law Quarterly Review Vol. 100 of October, 1984.
The author said:

i. If the tribunal purports to find that particular events

occurred although it is seised of no admissible evidence
30 that the events did not in fact occur, it is a question of
law. But where admissible evidence has been led, its
assessment is entirely for the tribunal, in other words, it
is a question of fact.

35 ii. If the tribunal approached the construction of a legal term

of art in a statute on the erroneous basis that the
statutory wording bears it’s ordinary meaning, it is a
question of law.

40 iii. If the tribunal approaches the construction of a statutory

word or phrase bearing an ordinary meaning on the
erroneous basis that it is a legal term of art, it is a question
of law.

45 iv. If the tribunal, though correctly treating a statutory word

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or phrase as a legal term of art, errs in elucidation of the

word or phrase, it is a question of law.

v. If the tribunal errs in its conclusion (that is, in applying

5 the law to the facts) in a case where this process requires
the skill of a trained lawyer, it is error of law.

vi. If in a case where a conclusion can as well be drawn by

a layman (properly instructed on law) as by a lawyer, the
10 tribunal reaches a conclusion which cannot reasonably
be drawn from the facts found, in that event, the superior
court has no option but to assume that there has been a
misconception of the law. But the issue may admit of
more than one possible resolution.
15
The inferior tribunal’s conclusion may be one of the possible
resolutions; yet it may be a conclusion which the superior court
(had it been seised of the issue) would not have reached.
Nevertheless, the inferior tribunal does not err in law. The matter
20 is one of degree, and a superior court with jurisdiction to correct
only errors of law will not intervene.

A ground of appeal which complains of a misunderstanding by

the lower court or a misapplication of the law to the facts already
25 proved or admitted is a ground of law.”
(P. 81 lines 37 - 45; P. 82 lines 1 - 45; P. 83 lines 1 - 3)

[2] Appeal – Interference – An appellate court will not interfere with the
right decision and exercise of discretion by a lower court.
30
Per TOBI, JCA:

It is also settled law that the appellate court will not be too hasty to upturn
or interfere with the decision of the lower court where the lower court
35 rightly and properly applied its discretion. See T.S.A. Industries Ltd. v.
Kema Investments Ltd. (2006) LPELR-3129 (SC).
(P. 87 lines 28 - 31)

[3] Ground of Appeal – Issue – A ground of appeal with no issue derived

40 therefrom is deemed abandoned.

The law has remained well settled to the effect that issues must be
generated from each ground of appeal’ and that any ground of appeal,
from which no issue is generated, is deemed to have been abandoned.
45 Adelekan v. Ecu-line NV (2006) 8 MJSC 142; Aderibigbe v. Abidoye (2009)

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MJSC (Pt.3) 77; Ministry of Education, Anambra State & Ors v. Obong -
Ifiok (Dr.) Anny Asikpo (2013) LPELR- 21393 (CA).
(P. 83 lines 28 - 33)

5 [4] Ground of Appeal – Issue – Any issue raised and argument canvassed
therefrom must relate to and be derived from a ground of appeal
otherwise such issue and argument are incompetent and will be
discountenanced.

10 The law has remained very well established to the effect that every issue
formulated for the determination of an appeal, must arise from and be
covered by a ground of appeal and if otherwise, such an issue with the
arguments canvassed on it shall be not be considered but discountenanced
by the appellate court. Therefore, no issue for determination can be raised
15 from the blues and nubibus. Idika & Ors v. Erisi & Ors (1988) 2 NWLR
(Pt.78) 563; Niger Progress Ltd v. North East Line Corporation (1989) 3
NWLR (Pt. 107) 68; Chief Onwuka Kalu v. Chief Victor Odili & Ors (1992)
6 SCNJ 76; Achiakpa v. Nduka (2001) 7 SCNJ 567; Khaled Chami v.
United Bank for Africa (2010) 1 SCNJ 23 @ 36; Shell Petroleum
20 Development Co Ltd v. Tigbara Edamkhue & Ors (2009) 7 SCNJ 124.
(P. 83 lines 39 - 45; P. 84 lines 1 - 4)

[5] Litigation – Relisting – In considering an application for relisting,

the court has absolute discretion to grant or refuse, provided such
25 discretion is exercised judicially and judiciously based on cogent
and credible evidence adduced by the applicant and whether the
grant is prejudicial to the other party.

The grant or otherwise of the application was entirely at the discretion of

30 his Lordship, which had to be exercised not only judicially but also
judiciously. In exercising such discretion, the factors that would guide the
judex, are whether the Applicant has good reason for his absence from
court at the hearing of the matter, on the date that it was struck out and
whether the delay in making the application, was prejudicial to the other
35 party, the Respondents. Williams v. Hope Rising Voluntary Funds Society
(1982) 1-2 SC 145; Long - John v. Black (1998) 6 NWLR (Pt. 555) 524.

Per TOBI, JCA:

40 The law is settled that before the court can grant the application of an
applicant, such an applicant must present before the court cogent, credible
and compelling reasons for his delay. See Ikenta Best Nig. Ltd v. A.G.
Rivers State (2008) 22 WRN on the Supreme Court’s definition of what
good and substantial reason is. The court also considers whether the
45 delay in bringing the application will be prejudicial to the other party before

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applying its discretion on whether or not to grant same. See Okafor v.

U.B.N PIc. (supra). (P. 84 lines 24 - 32; P. 87 lines 20 - 26)

[6] Litigation – Notice of Discontinuance – Once filed by a claimant,

5 cannot be revoked.

The said Notice of Discontinuance was ably canvased and ventilated upon
by the respective learned counsel at the court below and the learned trial
judge at pages 210-211 of the record of appeal, dwelt on it and came to
10 the conclusion that the effective date of the Notice of Discontinuance was
the date it was filed and not the date that the suit was struck out by the
court. Ezenu v. Aghezel (1991) 4 NWLR (Pt. 187) 631 @ 643. The law
has been well established that once a notice of discontinuance of a pending
suit has been filed by a plaintiff, he can no longer resile from it by coming
15 round to revoke it. Dalfam (Nig.) Ltd v. Okaku International Ltd (2001) 12
NWLR (Pt.735) 203 @ 256. In the instant case, I am in agreement with
the learned trial judge in his conclusion at page 211 of the record of appeal,
where his Lordship stated thus:

20 “Most importantly, the notice was filed after the Suit was struck
out, it then means that the Suit was in coma before, and after the
notice was served it died a natural death, this is a double calamity
on the Suit and I hold that at this time it cannot be resurrected by
re-listing but by a fresh action.”
25
I agree with the learned trial judge and hereby resolve issue 2 against the
Appellant. (P. 85 lines 19 - 37)

[7] Litigation – Unsigned Process – is worthless and of no probative

30 value.

The elementary law which has been well established, is that an unsigned
document, is a worthless piece of paper. It has no probative value. Ojo v.
Primate Adejobi (1978) 3 S.C. 65; Omega Bank (Nig.) Plc v. O.B.C. Ltd
35 (2005) All FWLR (Pt. 249) 1964 @ 1993-1994; Okarika & Ors v. Samuel
& Ors (2013) LPELR-19935 (SC); (2013) 7 NWLR (Pt.1352) 19; Community
Development Organization, Tudun-Maliki Quarters & Ano v. Ibrahim
Mohammed (2015) 9 NWLR (Pt. 1465) 585 @ 604; (2014) LPELR-23598
(CA) @ p.20; Zenith Bank Plc v. Rita Uzoamaka Ifeadi (2019) LPELR-
40 46773) (CA) @ p.45, paras, B-A. (P. 86 lines 5 - 13)

[8] Litigation – Signature – The importance and reason for signing a

document is to authenticate and validate it as emanating from the
person who signed it.
45

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The reason for the above position of the law is not farfetched. Hence, the
essence of a signature on a document, was espoused by Muri Okunola,
JCA., in Tsalibawa v. Habiba (1992) 2 NWLR (Pt.174) 461, thus:

5 “The importance of signature as a mark of authenticating a

document as being that of the writer was judicially explained in
page 2547 of volume 3 of Stroud’s Judicial Dictionary, 4th Edition
as follows:

10 ‘Speaking generally, a signature is the writing or otherwise affixing

a person’s name or mark to represent his name by himself or by
his authority (R v. Kent Justice L.R. 6 Q.B. 305) with the intention
of authenticating a document as being that of, or binding on, the
person whose name or mark is so written or affixed.”
15 (P. 86 lines 13 - 26)

[9] Litigation – Diligent Prosecution – A claimant must take necessary

step and act timeously in prosecuting his claim.

20 Per TOBI, JCA:

I have carefully looked into the argument of the Appellant and I cannot see
my way clear to agree with the Appellant, as 10 years is too long a time
and it has often times been sounded in our legal jurisprudence that time
25 is of the essence in taking necessary steps in the course of any
proceedings before court. See the decision of this court in the case of
Okafor v. U.B.N PIc. (2007) All FWLR (Pt. 347) 743 @ 757 paras E-G
(CA). (P. 87 lines 11 - 16)

30 YAKUBU, JCA (Delivering the lead Judgment): This appeal has a chequered
history. It is sequel to the decision of the Federal High Court, holden at Lagos
Division, Lagos, rendered on 10th November, 2004.

By a writ of Summons issued at the Port Harcourt Division of the Federal High
35 Court on the 18th May, 1992 and Statement of Claim dated 20th July, 1992, the
Appellant had claimed against the Respondents, jointly and severally thus:

i. A declaration that as a consequence of the 1 st Defendant’s

negligence and/or wrongful act the Plaintiff’s B737 Aircraft serial
40 No. 19549 registered as 5 N-D10 which was lawfully parked in a
parking position at the Port Harcourt International Airport was
extensively damaged by the 1st Defendant’s mobile Fuel browser’
registration No. PHA/1, thereby rendering it completely
unairworthy.
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ii. A declaration that a meeting held on the 27th and 28th day of January
1992 at the Board Room of the Plaintiff company at Port Harcourt
attended by persons who signed for the following parties to wit: -

5 PARTIES REPRESENTATIVE

A: BARNAX AIRLINES LTD

1. NZE D.LO IWUAGWU EXECUTIVE CHAIRMAN BARNAX

10 AIRLINES LTD.

2. CHIEF ENGINEER TARIYE SUBI

3. CAPTAIN E. AKOSIM
15
B: INTERNATIONAL AIR LEASERS

1. TOM MONAGHAN 361 INC

20 2. JIM LYNCH

C: MOBIL OIL NIGERIA PLC

1. BRUME OPUTU ESQ

25
D: AIRCLAIMS INSURANCE

1. HUGH STEWART SERVICE LTD

30 2. CHRIS SHEPARD

E: COLAD (COPORATE LOSS ADJUSTERS UNLIMITED)

1. AK. HASSAN
35
2. OLATUNBOSUN

IT WAS AGREED AS FOLLOWS:

40 i.) That the Aircraft will be replaced at the cost of US Dollars

5,550,000 (Five Million Five Hundred and Fifty Thousand) USD
as at February 1992.

ii) The said replacement is subject to two conditions.

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a) Evidence of the last check

b) Subject to verification from relevant Lloyds documents in

Lagos for guidance on the costing of the used aircraft.
5
iii) Lost of use was agreed to stop on 31st day of January 1992 on the
understanding that a lump sum of N5,489,624.00 (Five Million,
Four Hundred and Eighty - Nine Thousand Six Hundred and Twenty
Four Naira) Only will be paid.
10
iv) Payment to be effected on or before 15th day of February 1992.

v) International Air leases 361 INC. and Barnax Airlines Ltd insisted
that payment for Aircraft must be in US Dollars.
15
OR IN THE ALTERNATIVE

a) U.S Dollars 5,588,400 (Five Million, Five Hundred and

Eighty - Eight Thousand, Four Hundred United States
20 Dollars being estimated charges for the repair of the said
aircraft as at February 1992.

b) N26,986,000 (Twenty - Six Million, Nine Hundred and

Eighty Six Thousand Naira) for loss of use of aircraft for
25 the period 2nd January 1992 to 12th May 1992 at the rate
of N206,000 per charter flight.

c) Claim to be reassessed in the light of the depreciation of

Naira.
30
4. Ten Million Naira (N10,000,000.00) Only for loss of business
reputation.

5. Any other relief or relief’s as this Honourable Court may grant the
35 Plaintiff in the circumstances of his case.

All these are as contained in the particulars of claim dated the 15th day of May
1992.

40 The Defendants however filed a Statement of Defence dated the 25th day of August
1992 and filed the 2nd day of September 1992.

The matter continued in Port Harcourt High Court presided over by learned Justice
S. O. Ojutalayo who heard all the preliminaries including various amendments in
45 Statement of Claim and Defence until the 18th day of May 1993 when the matter

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was transferred to Lagos Judicial Division for hearing de novo by Learned Justice
B. Belgore the Chief Judge of the Federal High Court (as he then was).

Learned Justice S. O. Ojutalayo complied with the directive of the Chief Judge on
5 the 7th day of June 1993 by transferring the suit to Lagos Judicial Division and to be
heard de Novo. All this while, the Chairman/Managing director of the Plaintiff’s
company Nze D. I. Iwuagwu was hospitalized abroad as a result of the shock he
had from the damage of the Aircraft by the Respondents; He was going from one
hospital in Nigeria, United Kingdom to the ones in the United States of America.
10 When the matter came up in Lagos Federal High Court, Coram: Learned Justice
M. Kolo (as he then was) for the first time on the 28th day of June 1993, one lawyer
N. U. Obiagwu Ikedionu from Chief G. C. M. Onyiuke’s Chambers appeared for the
Plaintiff/Applicant, but there was no appearance for the Defendants/Respondents.
The suit was however adjourned to 20th day of July 1993 for the Defendants/
15 Respondents who filed a Motion for Discoveries to argue their Motion. On the 20th
day of July 1993, the Defendants were also not in court, the court did not sit in the
month of August because of the long vacation. In September, 1993, the court did
not also sit. The matter however came up on the 13th day of October, 1993 for
motion and adjourned to the 24th day of November for mention. On the 24th day of
20 November 1993 both Parties were represented by counsel who accepted to file
fresh Pleadings, the matter was therefore adjourned to the 2nd day of March 1994
for mention. But before the matter could come up on the 2nd day of March, 1994 for
mention Chief G. C. M Oyiuke, the counsel representing the Plaintiff/Appellant
died and his chambers was locked up by his family. So when the matter came up
25 for mention on the 2nd day of March 1994, the Plaintiff/Applicant was not represented
by any counsel.

The learned senior advocate for the Defendants/Respondents urged the court to
strike out the matter. The matter was struck out by the learned Justice M. Kolo
30 because of non-appearance of the Plaintiff/Appellant’s Counsel on the day the
suit was adjourned for mention.

Thereafter, the Appellant on 16th February, 2004, filed a motion on notice wherein
it sought that its suit that was struck out on 2nd March, 1994 be re-Iisted. The
35 application was resisted by the Respondents who filed a Counter Affidavit against
it. The Appellant in its reaction, filed a Further and Better Affidavit and attached
thereto, an “Affidavit of Authentic Facts”, deposed to by its Managing Director. The
application was heard on 5th July, 2004 and adjourned for ruling on 27th July, 2004.

40 On the aforesaid adjourned date for the ruling, the Appellant’s counsel, filed a
motion seeking an order to arrest and suspend whatsoever was the ruling of the
court. The new application for the arrest and suspension of the court’s ruling was
adjourned for hearing on a later date. The Respondents filed a Counter Affidavit
against it. The court heard arguments on the new application on 19th October,
45 2004 and ruling was delivered on it on 10th November, 2004. The application was

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dismissed. On the same date, the court below delivered its ruling with respect to
the application to re-list the Suit that was struck out on 2nd March, 1994 which
was also dismissed. This appeal is against the decisions of the court below rendered
on 10th November, 2004. It is anchored on eight grounds.
5
The Appellant, in actualizing the prosecution of the appeal, filed the Appellant’s
brief of argument on 27th June, 2008 and the same was deemed by this Court as
properly filed on 6th November, 2018. The Respondents’ brief of argument, dated
and filed on 14th December, 2009 was also deemed filed on 6th November, 2018.
10 Thereafter, the Appellant’s Reply brief was filed on 8th November, 2018.

In the Appellant’s brief of argument, prepared by Osunwa A.U. Esq., four issues
were nominated for the determination of the appeal, namely:

15 1. Whether the learned trial judge is justified to have refused the

Plaintiff/Appellant’s application to re-list in light of the specific
provisions of the Federal High Court Rules at Order 23 Rule 4(1)?

2. Whether the learned trial judge was right in holding that the notice
20 of discontinuance dated the 19th day of July 1995 was properly
filed?

3. Whether learned trial judge was right in refusing to admit the

notarized document made by the managing director of the plaintiff
25 and annexed as Exhibit to an affidavit as being alien to Nigerian
Law.

4. Whether the learned trial judge was right in holding that an

application to arrest the ruling of an honourable court is not relevant
30 in this matter.

The Respondents’ learned counsel - L. Fubara Anga, who prepared the

Respondents’ brief of argument, also suggested four issues therein, for the
resolution of the appeal, to wit:
35
1. Whether the lower court was right when it refused to grant the
Appellant’s motion to arrest the ruling of the lower court.

2. Whether the lower court was right in deciding to reject the “Affidavit
40 of Authentic Fact” purportedly from the Managing Director of the
Appellant.

3. Whether the lower court followed the Federal High Court (Civil
Procedure) Rules, 2000 in the determination of the motion dated
45 16th February, 2004.

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4. Whether the lower court was wrong for refusing to order a re-list
of Suit No. FHC/PH/17/92 that was struck out in March 1994 and
for which a Notice of Discontinuance was filed by the Appellant
on 20 July 1995.
5
It is noteworthy that in the Respondents’ brief of argument, a Notice of Intention to
Rely upon a Preliminary Objection, was indicated, inter alia:

TAKE NOTICE that the Respondents herein named intend, at the hearing of this
10 appeal, to rely upon the following preliminary objection, notice whereof is hereby
given to you, and in consequence pray that the Appellant’s Notice of Appeal be
struck out.

AND TAKE NOTICE that the grounds of the said objection are that:
15
1. Leave was not sought to file the Notice and Grounds of Appeal
dated 3 February 2005 out of time.

2. Leave of the court was not sought to appeal against the lower
20 court’s discretionary decision.

3. No issue is formulated from grounds 2, 4, 5 and 6 of the Notice

and Grounds of Appeal dated 3 February 2005 and filed on 7
February 2005.
25
4. A sole Notice of Appeal has been filed for two different rulings of
the lower court with imprecise grounds.

The Respondents’ arguments on the Preliminary Objection are contained at

30 paragraphs 1-12 of the Respondents’ brief of argument. The Appellant’s responses
to the Preliminary Objection are contained at paragraphs 3.1.1 - 3.4.4 of the Reply
brief. I have considered the trenchant submissions of the learned counsel to the
parties.

35 My Lords, upon my perusal of all the Grounds of the Appellant’s Notice of Appeal,
it is glaringly clear to me that they are grounds of law and not of mixed law and
facts. The law has been well settled that in order to decipher whether or not a
ground of appeal is of law or mixed law and facts or purely law, it is incumbent on
the appellate court to interrogate and scrutinize the grounds of appeal with their
40 respective particulars before it determines whether any particular ground of appeal
is of facts, mixed law and facts or purely law. The decided authorities on this
principle are a basketful. So, just a few of them will suffice. Paul Nwadike & Ors v.
Cletus Ibekwe & Ors (1987) 12 S.C. 14; Ogbechie & Ors v. Gabriel Onochie &
Ors (1996) 3 S.C. 54; Kashasadi v. Noma (2007) 13 NWLR (Pt.1052) 510; Nwaolisah
45 v. Nwabufoh (2011) LPELR- 2115 (SC) @ 26-27, para, D-B; Kerian Ikpara Obasi v.

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Mikson Establishment Industries Ltd (2016) 16 NWLR (Pt.1539) 335 @ 382-383.

The Supreme Court in allaying doubts on the determination of a ground of appeal
whichever is of facts, mixed law and facts or purely law had to set out the guiding
principles in the determination of such grounds of appeal in some of its decisions,
5 such as Mr. Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (2016) 14
NWLR (Pt.1533) 458 @ 477-478, per Rhodes - Vivour, J.S.C., thus:

“In Ogbechie & Ors v. Onochie & Ors (supra) this court adopted the
explanation and, the way to identify grounds of appeal by the authors of
10 the Law Quarterly Review Vol. 100 of October, 1984. The author said:

i. If the tribunal purports to find that particular events occurred

although it is seised of no admissible evidence that the events
did not in fact occur, it is a question of law. But where admissible
15 evidence has been led, its assessment is entirely for the tribunal,
in other words, it is a question of fact.

ii. If the tribunal approached the construction of a legal term of art in

a statute on the erroneous basis that the statutory wording bears
20 it’s ordinary meaning, it is a question of law.

iii. If the tribunal approaches the construction of a statutory word or

phrase bearing an ordinary meaning on the erroneous basis that
it is a legal term of art, it is a question of law.
25
iv. If the tribunal, though correctly treating a statutory word or phrase
as a legal term of art, errs in elucidation of the word or phrase, it
is a question of law.

30 v. If the tribunal errs in its conclusion (that is, in applying the law to
the facts) in a case where this process requires the skill of a
trained lawyer, it is error of law.

vi. If in a case where a conclusion can as well be drawn by a layman

35 (properly instructed on law) as by a lawyer, the tribunal reaches a
conclusion which cannot reasonably be drawn from the facts found,
in that event, the superior court has no option but to assume that
there has been a misconception of the law. But the issue may
admit of more than one possible resolution.
40
The inferior tribunal’s conclusion may be one of the possible resolutions;
yet it may be a conclusion which the superior court (had it been seised of
the issue) would not have reached. Nevertheless, the inferior tribunal does
not err in law. The matter is one of degree, and a superior court with
45 jurisdiction to correct only errors of law will not intervene.

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A ground of appeal which complains of a misunderstanding by the lower

court or a misapplication of the law to the facts already proved or admitted
is a ground of law.”

5 I am of the considered and firm opinion that since all the Appellant’s grounds of
appeal are of law and not of mixed law and facts, the Appellant needed no leave of
the court below nor of this Court, to have raised them in his notice of appeal.
Hence, there was no violation of Sections 241 and 242 of Constitution of the
Federal Republic of Nigeria, 1999 as amended. The Appellant’s grounds of appeal,
10 are not incompetent.

I have also considered the Respondents’ contention to the effect that grounds 2,
4, 5 and 6 of the Notice of Appeal are incompetent because according to the
learned counsel to the Respondents, no issue for determination was formulated
15 from any of them. The learned Appellant’s counsel did not respond to the contentions
of the Respondents’ learned counsel in respect of the incompetence of the
aforementioned grounds of appeal. I have myself perused each of them. Ground 2
complains about the error of the learned trial judge in not considering the provisions
of a Limitation Act; Ground 4 complains about the non consideration by the learned
20 trial judge of the fact that the case file in this matter got missing at the court below
between 1993 and 2002 and its effect on the Appellant’s application to re-list its
Suit; Ground 5 complains about the transfer of the Suit by the Chief Judge from
the jurisdiction where the Suit was filed to another jurisdiction for its hearing and
determination whilst Ground 6’s complaint borders on the question of the insolvency
25 of the Appellant allegedly caused by the Respondents and its negative impact on
the delay by the Appellant to apply for the re-listing of its Suit that was struck out
by the court below. Undeniably, the Appellant’s learned counsel did not formulate
any issue from Grounds 2, 4, 5 and 6 of the Notice of Appeal. The law has remained
well settled to the effect that issues must be generated from each ground of
30 appeal’ and that any ground of appeal, from which no issue is generated, is deemed
to have been abandoned. Adelekan v. Ecu-line NV (2006) 8 MJSC 142; Aderibigbe
v. Abidoye (2009) MJSC (Pt.3) 77; Ministry of Education, Anambra State & Ors v.
Obong - Ifiok (Dr.) Anny Asikpo (2013) LPELR- 21393 (CA). Flowing from the
above, since no issue for the determination of the appeal was formulated from
35 Grounds 2, 4, 5 and 6 of the Appellant’s Notice of Appeal, I am in agreement with
the Respondents’ learned counsel that the said grounds of appeal, are deemed to
be abandoned by the Appellant. Furthermore, I have noticed that issue 4 nominated
by the Appellant which is the same as the Respondents’ issue 1, are not covered
by any ground of appeal. The law has remained very well established to the effect
40 that every issue formulated for the determination of an appeal, must arise from
and be covered by a ground of appeal and if otherwise, such an issue with the
arguments canvassed on it shall be not be considered but discountenanced by
the appellate court. Therefore, no issue for determination can be raised from the
blues and nubibus. Idika & Ors v. Erisi & Ors (1988) 2 NWLR (Pt.78) 563; Niger
45 Progress Ltd v. North East Line Corporation (1989) 3 NWLR (Pt. 107) 68; Chief

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Onwuka Kalu v. Chief Victor Odili & Ors (1992) 6 SCNJ 76; Achiakpa v. Nduka
(2001) 7 SCNJ 567; Khaled Chami v. United Bank for Africa (2010) 1 SCNJ 23 @
36; Shell Petroleum Development Co Ltd v. Tigbara Edamkhue & Ors (2009) 7
SCNJ 124. In the circumstances, Appellant’s issue 4 and the Respondents’ issue
5 1, with the arguments proffered by the respective learned counsel thereon are
hereby discountenanced by me.

I shall now proceed to consider the appeal on grounds 1, 3, 7 and 8 of the Notice
of Appeal. In so doing, I adopt issues 1, 2 and 3 nominated by the Appellant’s
10 learned counsel for the resolution of the appeal. It is glaringly clear to me that the
Appellant’s issue 1 is the same as the Respondents’ issue 4; and the Appellant’s
issue 3 is the same as the Respondents’ issue 2 whilst the Appellant’s issue 2
covers issue 4 of the Respondents. I have perused and considered the trenchant
submissions of both learned counsel herein. I do not intend to rehash the said
15 submissions, but as the occasion demands, they shall be alluded to in my
resolution of the issues in the appeal.

Resolution:

20 The learned trial judge at pages 207 - 210 of the record of appeal, in considering
the Appellant’s application to re-list its suit that was struck out on 2nd March, 1994
had carefully and meticulously perused the affidavit evidence placed before him by
both parties. He found that the reasons proffered by the Appellant for the delay in
bringing the application were not good enough. I agree with him. The grant or
25 otherwise of the application was entirely at the discretion of his Lordship, which
had to be exercised not only judicially but also judiciously. In exercising such
discretion, the factors that would guide the judex, are whether the Applicant has
good reason for his absence from court at the hearing of the matter, on the date
that it was struck out and whether the delay in making the application, was
30 prejudicial to the other party, the Respondents. Williams v. Hope Rising Voluntary
Funds Society (1982) 1-2 SC 145; Long - John v. Black (1998) 6 NWLR (Pt. 555)
524. Upon my perusal of the depositions in paragraphs 8, 9 and 10 of the affidavit
in support of the application, it is clear to me that if the Managing Director of the
Appellant was hospitalized, it cannot be said that in his absence, no other person
35 or staff of the Appellant could come to court and offer an explanation for the court
to be apprised of the status of the case. And what was worse, there was no
explanation from the Appellant’s counsel to the court for his absence from court,
when the case was called up for hearing. Yes, Chief G.C.M. Onyuike, could be ill
for him not to attend the court on 2nd March, 1994. Perhaps, if the Appellant had
40 deposed to a fact that Chief G.C.M. Onyuike was the only Legal Practitioner in his
law firm, the story could have been more plausible. However, it appears that, that
was not the situation. It then means that the Appellant had not provided the court
below with sufficient and credible evidence to aid him in the exercise of his discretion
in the consideration of the application. Furthermore, the other requirement to be
45 considered in application to re-list a suit that had been struck out is whether or

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not the grant of the application would prejudice the other party. It is unarguable to
state the obvious that in a matter that was struck out in March,1994 and was
prayed to be re-listed in November, 2004, that was almost ten years between the
two dates, that the Respondents would not be prejudiced if such an application
5 was granted. Of course, it was demonstrated by the Respondents vide paragraphs
22, 23-27 of their Counter Affidavit against the application vis- a- vis paragraphs 9,
11 and 14 of the Further Affidavit of the Appellant/Applicant that the latter had
taken some steps after the suit was struck out, which adversely affected the
Respondents’ interests and the interests of third parties, as rightly found by the
10 learned trial judge in his ruling at pages 212-213 of the record of appeal. I do not
have any difficulty in agreeing with his Lordship that the Appellant failed to convince
him that the application to re-list its suit that was struck out on 2nd March, 1994,
was meritorious and grantable. It was not. Issue 1 is therefore resolved against
the Appellant.
15
With respect to issue 2, which borders on the Notice of Discontinuance, the first
impression created vide Ground 3 of the Notice of Appeal, is as if the said Notice
of Discontinuance was never moved and pronounced upon by the learned trial
judge. Alas, nothing can be farther from the truth. The said Notice of Discontinuance
20 was ably canvased and ventilated upon by the respective learned counsel at the
court below and the learned trial judge at pages 210-211 of the record of appeal,
dwelt on it and came to the conclusion that the effective date of the Notice of
Discontinuance was the date it was filed and not the date that the suit was struck
out by the court. Ezenu v. Aghezel (1991) 4 NWLR (Pt. 187) 631 @ 643. The law
25 has been well established that once a notice of discontinuance of a pending suit
has been filed by a plaintiff, he can no longer resile from it by coming round to
revoke it. Dalfam (Nig.) Ltd v. Okaku International Ltd (2001) 12 NWLR (Pt.735)
203 @ 256. In the instant case, I am in agreement with the learned trial judge in
his conclusion at page 211 of the record of appeal, where his Lordship stated
30 thus:
“Most importantly, the notice was filed after the Suit was struck out, it
then means that the Suit was in coma before, and after the notice was
served it died a natural death, this is a double calamity on the Suit and I
hold that at this time it cannot be resurrected by re-listing but by a fresh
35 action.”

I agree with the learned trial judge and hereby resolve issue 2 against the Appellant.

Issue 3 is with respect to the Notarized “Affidavit of Authentic Facts”. The learned
40 Appellant’s counsel contended that the learned trial judge ought to have admitted
it into evidence, since it was not strictly speaking, an affidavit on its own, but an
exhibit attached to the Appellant’s Further and Better Affidavit. The learned trial
judge on having seen and perused the aforesaid document, found that apart from
the fact that it was not signed by the deponent nor sworn to before a Commissioner
45 for Oaths, the deponent averred that he lives in Abuja, Nigeria but that he was in

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Yakubu; Ogakwu, JJ.CA

United States of America and that the said document marked as Exhibit A1, was
notarized in Texas U.S.A. The question to be asked is if the deponent resided in
Abuja, Nigeria where and when he deposed to Exhibit A1, what was the need of
having’ it “notarized” in Texas, U.S.A.? Furthermore, if the said Exhibit A1 was
5 unsigned by the deponent, of what use was it to be admitted into evidence? The
elementary law which has been well established, is that an unsigned document,
is a worthless piece of paper. It has no probative value. Ojo v. Primate Adejobi
(1978) 3 S.C. 65; Omega Bank (Nig.) Plc v. O.B.C. Ltd (2005) All FWLR (Pt. 249)
1964 @ 1993-1994; Okarika & Ors v. Samuel & Ors (2013) LPELR-19935 (SC);
10 (2013) 7 NWLR (Pt.1352) 19; Community Development Organization, Tudun-Maliki
Quarters & Ano v. Ibrahim Mohammed (2015) 9 NWLR (Pt. 1465) 585 @ 604;
(2014) LPELR-23598 (CA) @ p.20; Zenith Bank Plc v. Rita Uzoamaka Ifeadi
(2019) LPELR-46773) (CA) @ p.45, paras, B-A. The reason for the above position
of the law is not farfetched. Hence, the essence of a signature on a document,
15 was espoused by Muri Okunola, JCA., in Tsalibawa v. Habiba (1992) 2 NWLR
(Pt.174) 461, thus:

“The importance of signature as a mark of authenticating a document as

being that of the writer was judicially explained in page 2547 of volume 3
20 of Stroud’s Judicial Dictionary, 4th Edition as follows:

‘Speaking generally, a signature is the writing or otherwise affixing a

person’s name or mark to represent his name by himself or by his authority
(R v. Kent Justice L.R. 6 Q.B. 305) with the intention of authenticating a
25 document as being that of, or binding on, the person whose name or
mark is so written or affixed.”

I do not think that there is any need of splitting hairs, further on this issue. It is as
clear as crystal that Exhibit A1, having not been signed by the maker or writer,
30 has not authenticated anything. It is a worthless piece of paper. The learned trial
judge was eminently justified for not admitting it in evidence and apportioning any
probative value to it. In sum, issue 3 is resolved against the Appellant.

In the end, having resolved the three issues in the appeal against the Appellant, it
35 follows that the appeal, is fluffy and merits a dismissal. I dismiss it, accordingly.

The ruling rendered by Abimbola O. Ogie, J., in re-Suit NO: FHC/PH/17/1992 at

the Federal High Court, Lagos Division, on 10th November, 2004, is hereby affirmed.

40 The costs of the appeal is assessed at N200,000.00 in favour of the Respondents,

against the Appellant.

OGAKWU, JCA: My learned brother, Tom Shaibu Yakubu, JCA, made available
to me the draft of the leading judgment which has just been delivered.
45

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Ogakwu; Tobi, JJ.CA

Having also read the Records of Appeal and the briefs of argument filed and
exchanged by the parties, I am allegiant to the reasoning and conclusion in the
leading judgment that the appeal is devoid of merit.

5 I adopt the reasoning and conclusion as mine and equally join in dismissing the
appeal on the same terms as set out in the leading judgment. The decision of the
lower court, Coram Judice: Abimbola O. Ogie, J. (now JCA), delivered on 10th
November 2004 is affirmed.

10 TOBI, JCA: I was afforded in advance a draft copy of the lead judgment of my
learned brother, TOM SHAIBU YAKUBU, JCA. I have carefully looked into the
argument of the Appellant and I cannot see my way clear to agree with the Appellant,
as 10 years is too long a time and it has often times been sounded in our legal
jurisprudence that time is of the essence in taking necessary steps in the course
15 of any proceedings before court. See the decision of this court in the case of
Okafor v. U.B.N PIc. (2007) All FWLR (Pt. 347) 743 @ 757 paras E-G (CA).

The Appellant has not been able to present or place before this court concrete,
cogent and sufficient reason for the court to grant his application as he is guilty of
20 delay. The law is settled that before the court can grant the application of an
applicant, such an applicant must present before the court cogent, credible and
compelling reasons for his delay. See Ikenta Best Nig. Ltd v. A.G. Rivers State
(2008) 22 WRN on the Supreme Court’s definition of what good and substantial
reason is. The court also considers whether the delay in bringing the application
25 will be prejudicial to the other party before applying its discretion on whether or
not to grant same. See Okafor v. U.B.N PIc. (supra).

It is also settled law that the appellate court will not be too hasty to upturn or
interfere with the decision of the lower court where the lower court rightly and
30 properly applied its discretion. See T.S.A. Industries Ltd. v. Kema Investments
Ltd. (2006) LPELR-3129 (SC).

In the light of the foregoing, I do not see how the application of the Appellant will
not prejudiced the Respondents herein, coupled with the delays involved. I hereby
35 hold that there is no merit in the argument of the Appellant and as such same is
hereby dismissed and the ruling of the lower court is hereby affirmed.

I abide by the order for cost.

40 Cases cited in the Judgment

Achiakpa v. Nduka (2001) 7 SCNJ 567
Adelekan v. Ecu-line NV (2006) 6 CLRN 54
Aderibigbe v. Abidoye (2009) MJSC (Pt.3) 77
Chief Onwuka Kalu v. Chief Victor Odili & Ors (1992) 6 SCNJ 76
45 Community Development Organization, Tudun-Maliki Quarters & Anor v. Ibrahim

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Mohammed (2015) 9 NWLR (Pt. 1465) 585 @ 604; (2014) LPELR-23598 (CA) 20
Dalfam (Nig.) Ltd v. Okaku International Ltd (2001) 12 NWLR (Pt.735) 203
Ezenu v. Aghezel (1991) 4 NWLR (Pt.187) 631
Idika & Ors v. Erisi & Ors (1988) 2 NWLR (Pt.78) 563
5 Ikenta Best Nig. Ltd v. A.G. Rivers State (2008) 22 WRN
Kashasadi v. Noma (2007) 13 NWLR (Pt.1052) 510
Kerian Ikpara Obasi v. Mikson Establishment Industries Ltd (2016) 16 NWLR
(Pt.1539) 335
Khaled Chami v. United Bank for Africa (2010) 1 SCNJ 23
10 Ministry of Education, Anambra State & Ors v. Obong - Ifiok (Dr.) Anny Asikpo
(2013) LPELR- 21393 (CA)
Mr. Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (2016) 14 NWLR
(Pt.1533) 458
Niger Progress Ltd v. North East Line Corporation (1989) 3 NWLR (Pt. 107) 68
15 Nwaolisah v. Nwabufoh (2011) LPELR- 2115 (SC) 26
Ogbechie & Ors v. Gabriel Onochie & Ors (1996) 3 S.C. 54
Ojo v. Primate Adejobi (1978) 3 S.C. 65
Okafor v. U.B.N PIc. (2007) All FWLR (Pt. 347) 743
Okarika & Ors v. Samuel & Ors (2013) LPELR-19935 (SC); (2013) 7 NWLR
20 (Pt.1352) 19
Omega Bank (Nig.) Plc v. O.B.C. Ltd (2005) All FWLR (Pt. 249) 1964
Paul Nwadike & Ors v. Cletus Ibekwe & Ors (1987) 12 S.C. 14
Shell Petroleum Development Co Ltd v. Tigbara Edamkhue & Ors (2009) 7 SCNJ
124
25 T.S.A. Industries Ltd. v. Kema Investments Ltd. (2006) LPELR-3129 (SC)
Tsalibawa v. Habiba (1992) 2 NWLR (Pt.174) 461
Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145
Zenith Bank Plc v. Rita Uzoamaka Ifeadi (2019) LPELR-46773) (CA) 45

30 Foreign cases cited in the Judgment

Long - John v. Black (1998) 6 NWLR (Pt. 555) 524
R v. Kent Justice L.R. 6 Q.B. 305

Statutes cited in the Judgment

35 Sections 241 and 242 of Constitution of the Federal Republic of Nigeria 1999 (as
amended)

Rules of Court cited in the Judgment

Order 23 Rule 4(1) of the Federal High Court (Civil Procedure) Rules 2000
40
Books referred to in the Judgment
Stroud’s Judicial Dictionary, 4th Edition
Law Quarterly Review Vol. 100 of October, 1984

45 History:

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HIGH COURT
Federal High Court (Lagos Division)
Ogie, J

5 COURT OF APPEAL (Lagos Division)

Tom Shaibu Yakubu, JCA (Presided & Read the lead Judgment)
Ugochukwu Anthony Ogakwu, JCA
Ebiowei Tobi, JCA

10 Counsel:
N. I John Esq. with M. Okpanachi Esq. for the appellant.
L. F. Anga Esq. with Beremibara Esq. for the respondent.

15

20

25

30

35

40

45

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DOMAX ENGINEERING LIMITED; TEMCO ENGINEERING & COMPANY

LTD v. UNITY BANK PLC; LADY MARY ANEGBODE

COURT OF APPEAL
5 (LAGOS DIVISION)

CA/L/394/2009
FRIDAY 5TH JULY, 2019

10 (ABUBAKAR; OBASEKI-ADEJUMO; EBIOWEI, JJ.CA)

COMMERCIAL LITIGATION – Counter Claim – is a response of a defendant to a

claim in which he incorporates in the same suit a relief, claim or remedy against the
claimant.
15
LIMITATION LAW – Debt Recovery – Formal demand for payment is a condition
precedent and time will start to run from the date a letter of demand is sent to the
debtor for payment as the cause of action accrued on that date.

20 LIMITATION LAW – Debt Recovery – To be valid and admissible, letter of demand

must be sent to the debtor within the period allowed by the limitation law for
enforcing such right.

LAND LAW – Registrable Instruments – Where a registrable instrument is not

25 registered, it cannot be admissible in evidence to prove ownership; however, where
such instrument is meant to prove payment of purchase price and evidence of
transaction, it will be admissible and where properly proved, will confer equitable
interest which, when combined with possession, may result in legal interest.

30 STATUTE BAR – Limitation Law – The reason for limitation laws is to ensure that
a claimant files his suit timeously, when evidence is fresh and available so as not
to prejudice a defendant for lack of evidence or dearth of witnesses.

LITIGATION – Locus Standi – is the capacity of a person to institute an action and

35 a person who is in imminent danger from the conduct of an adverse party has locus.

LITIGATION – Issue – Court is at liberty to adopt or reformulate issues formulated

by the parties provided that where it decides to reformulate an issue, the issue
reformulated must capture the issues formulated by the parties.
40
LITIGATION – Evaluation of Evidence – The trial Court has the discretion to
evaluate parties’ evidence and ascribe probative value and an appellate court will
not interfere with such exercise of discretion unless it is shown that the court erred
in its evaluation.
45

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LITIGATION – Evaluation of Evidence – The privilege granted to the trial court to

evaluate evidence and ascribe probative value to it is borne out of the vantage and
unique position of the court to physically see and hear witnesses give evidence.

5 JUSTICE – Equity – follows the law but where strict adherence to law will lead to
injustice, equity will step in to provide substantial justice as equity looks at the
substance and not the form.

JUDICIAL DECISIONS – Interference – An appellate court will not interfere with

10 the decision of a trial court to evaluate evidence, except where the evidence is
documentary and the trial court failed to properly evaluate it.

Facts:

15 The appellants were customers of the 1st respondent. The 1st respondent advanced
several facilities to the appellants. These facilities were secured with landed
properties belonging to the 2nd appellant. In 1987, there was a release arrangement
between the parties in which the debts were settled and the properties were returned
to the appellants. Within the same period that the properties were returned to the
20 appellants, the 1st respondent advanced two facilities of N500,000.00 (Five Hundred
Thousand Naira) and N100,000.00 (One Hundred Thousand Naira) to the appellants.
These facilities were secured with the same properties earlier released to the
appellants. Unknown to the 1st respondent, the 2nd appellant sold three plots of the
land to the deceased husband of the 2nd respondent, who was substituted by the
25 2nd respondent at the High Court. The sale was done within the period the properties
were released to the appellants and when the new facilities were advanced to the
appellants. The land described as plot 1-3 was sold for N117,000.00 (One Hundred
and Seventeen Thousand Naira) which was duly paid and the 2nd appellant had
assured the 2nd respondent that the properties had been released and free from
30 any encumbrance.

The facilities were unpaid and on the 26th of June, 1996 the 1st respondent sent
demand letters to the appellants requesting payment of the debt and accrued
interest. The appellants refused to pay the debt on the ground that it was statute
35 barred. In 2000, the appellants filed a suit at the High Court of Lagos State against
the respondents. The contentions of the appellants were that the sale to the 2nd
respondent was forceful and should be declared void and that the debt owed the
1st respondent was statute barred and unenforceable. After being served with the
originating process, the respondents filed their defence and incorporated
40 counterclaims against the appellants.

The matter went to trial and at the end of proceedings, the trial court dismissed
the claims of the appellants and granted the counterclaims of the respondents.
The court held that the 2nd respondent was entitled to the properties sold to him by
45 the 2nd appellant since the transaction was carried out when the properties were

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released to the appellants and free from encumbrance, and purchase price duly
paid for them. The court further held that the debt was not statute barred and that
the 1st respondent could enforce same against the appellants. The appellants
were dissatisfied with the decision of the trial court and filed a notice of appeal at
5 the Court of Appeal, Lagos Division urging the court to reverse the trial court.

One of the issues for determination is whether the trial court was right in rejecting
the contention of the appellants that the claim arising out of the facilities granted
by the 1st respondent to the appellant was statute barred.
10
Held (Unanimously allowing the appeal in part):

[1] Commercial Litigation – Counter Claim – is a response of a defendant

to a claim in which he incorporates in the same suit a relief, claim or
15 remedy against the claimant.

It is trite that where a Plaintiff makes a Claim against a Defendant, the

Defendant in addition to filing a Defence to the Plaintiff’s claim can also
file a Counter-Claim against the Plaintiff. The 2nd Appellant’s locus standi
20 to file a Counter-Claim is predicated on the fact that the Appellants as
Claimants made claims against the 2nd Respondent. In Beloxxi & Company
Limited & Anor v. South Trust Banks & Ors (2012) LPELR-8021 (CA) Pg.
18-19, Paras. A - F, this Court explained the general nature of Counter-
Claim in the following words:
25
“A counterclaim is a claim by a defendant against a plaintiff
made after the plaintiff has filed and served the defendant
with the statement of claim which is typically concerning
and resolved within the same action. The defendant reverses
30 the law suit on the plaintiff claiming damages in the same
action...

From the legal stand point, it is clear that whatever happens

to the claim of the plaintiff does not affect the counterclaim.
35 The counter claim is an entirely different suit altogether and
is not dependent on the plaintiffs claim or the main claim...”

See also Obianwu & Ors v. Obianwu & Ors (2017) LPELR-42676 (CA)
Pg. 65-66, paras. A - C where this Court held that: “What then is a counter-
40 claim and it’s a purpose? A “counter-claim” is defined in Osborn’s Concise
Law Dictionary, 9th edition, page 109 “a response by the defendant to a
claim who alleges in his defence a claim, relief or remedy against the
Claimant, instead of bringing a separate action. A counter-claim may
also be made against any other person who is liable to him together with
45 the Claimant in respect of the counter-claim or the original subject matter

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of the action ...” (P. 118 lines 19 - 45; P. 119 line 1)

[2] Limitation Law – Debt Recovery – Formal demand for payment is a

condition precedent and time will start to run from the date a letter
5 of demand is sent to the debtor for payment as the cause of action
accrued on that date.

The issue of the Limitation Law with respect to debts was succinctly
considered by this Court in Wema Bank v. Owosho (2018) LPELR-
10 43857(CA). I shall rely on same as; it applies to this instant case; at Pg.
12-14, Paras. D - A, in that decision my Lord, GARBA, JCA held that:

“However, as a condition precedent for the exercise of the

right of action in respect of that cause of action to recover
15 the alleged debt from the Respondent, the law requires and
imposes a legal duty on the Appellant to make a formal
demand for the payment of the debt by the Respondent which
was to activate the right of enforcement of the cause of action,
through the judicial processes of a Court of law… the
20 activation of the right for it to accrue to the Appellant to
enforce the cause of an action depended on a letter of demand
for the payment of the debt from the Appellant and refusal or
failure by the Respondent to pay. The letter of demand was
to have been written by the Appellant before the legal action
25 by way of the counter claim was filed and within the time
prescribed by the limitation law of Lagos State. This is because
the accrual of the right to enforce the cause of action by use
of judicial process of a Court of law was/is not in perpetuity
to be exercised at the whims or pleasure of the Appellant.
30 Although the cause of action arose in 1999, the accrual of
the right to enforce it by way of judicial process of a Court of
law was to have arisen or been activated when and by the
letter of demand for the payment of the debt from the
Appellant....”
35
It was further held by my lord, GARBA, JCA at Pg. 17-12, Paras. E - A
that:
“…it is the letter of demand from a Bank to its customer for
the payment of a debt owed in his account that gives rise to
40 the accrual of the right of action for the purpose the recovery
of the debt by means of the judicial process of a Court of
law. As stated in the authorities, until such a letter of demand
was issued, no right of action would arise and accrue to the
bank to enable it commence a legal action in a Court of law
45 for the recovery of the debt in question. As a result, since the

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Appellant did not write and issue a letter of demand to the

Respondent for the recovery of the debt allegedly owed by
her as per Exhibit ‘D8’, which debt was also claimed in the
counter-claim, the right of action in respect of the said debt
5 did not accrue at the time the Appellant filed the
counter­claim for the debt. It may be recalled that the law is
that for the purpose of the application of a limitation law,
time would start to run from the date/time a cause and right
of action arises and accrues to a party…”
10 (P. 132 lines 18 - 45; P. 133 lines 1 - 14)

[3] Limitation Law – Debt Recovery – To be valid and admissible, letter

of demand must be sent to the debtor within the period allowed by
the limitation law for enforcing such right.
15
In the instant case, there were two letters of demand, as found by the
learned trial Judge at page 691 of the Records of Appeal - Exhibits P51
and P26 were made on the 26th of February and 21st of June, 1996
respectively and that since the counter-claim by the Respondents was
20 filed in October, 2000, it was not affected by the limitation law. However,
while the calculation between the date of the letters of demand - Exhibit
P51 and P26 and the time the counter-claim is correct; the real dispute
by the Appellant herein is whether Exhibits P51 and P26 both made in
1996 were made within the time permissible by law; in other words, since
25 the transaction that gave rise to the instant case came about pursuant to
Exhibits P4 and P5 made on 21st and 22nd of April, 1988 respectively; the
right of action in respect of the N500,000.00 overdraft accrued since 21/
10/88 and by the Limitation Law, would elapse on 20/10/94; while the
right of action in respect of the N100,000.00 accrued since 22/9/88 and
30 by the Limitation Law, would elapse on 21/9/94. Considering this issue,
the decision in Wema Bank v. Owosho (Supra) still applies. In that case
it was held -further that the Respondent - Bank, who counter-claimed as
in the instant case had a duty to make the demand within the time
prescribed by the limitation law. This Court held that the Respondent:
35
“… had the duty to have formally demanded for the payment
of the disputed debt from the Respondent within the time
prescribed by the limitation law if it indeed to use the judicial
processes of a Court to recover the debt. The duty of the
40 Appellate to comply with the provisions of the limitation law
in making the demand for the payment of the debt allegedly
owed by the Respondent was not left at its whims and pleasure
since it is a judicial condition precedent for the exercise of
the right to claim the payment by use of the judicial process
45 of a Court of law.

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... a formal demand for the payment of the debt from the
Appellant to the Respondent had to be made within the
period of time stipulated by the limitation law of Lagos State
for actions to recover such debts between the Appellant and
5 its customer; the Respondent. Limitation Statutes or Laws
being substantive and not merely procedural and technical
have to be complied with in the action by the Appellant to
recover the alleged debt from the Respondent…”
(P. 133 lines 16 - 45; P. 134 lines 1 - 5)
10
[4] Land Law – Registrable Instruments – Where a registrable instrument
is not registered, it cannot be admissible in evidence to prove
ownership; however, where such instrument is meant to prove
payment of purchase price and evidence of transaction, it will be
15 admissible and where properly proved, will confer equitable interest
which, when combined with possession, may result in legal interest.

I agree that Exhibits P39 and P66 are registrable instruments which must
be registered to be admissible as proof of title/ownership of land; this
20 settled position of the law was affirmed by this Court in Umar v. Bailey &
Ors (2018) LPELR-44285 (CA) Pg. 37 - 45, Paras. E - B while considering
the legal effect of such an unregistered registrable instrument wherein it
was held that:

25 “The legal effect is that where an instrument is required to

be registered but is not registered, it cannot he pleaded and
is therefore inadmissible in evidence. In other words any
registrable instrument which is not registered cannot be
pleaded nor tendered in evidence. Where it has been pleaded
30 and tendered, it will be inadmissible in any event. Such an
unregistered instrument may however be pleaded and
admitted to prove payment of purchase price, or as evidence
of the transaction between the parties, if properly proved and
admitted is proof of equitable interest which if coupled with
35 possession is capable of ripening into a legal interest.

The Supreme Court of Nigeria in Okoye v. Dumez Nig. Ltd (1985) NWLR
(Pt. 4) Pg. 263; (1985) LPELR-2506 (SC) Pg. 14, Paras B - E per BELLO,
JSC (of blessed memory) held that “A registrable instrument which
40 has not been registered is admissible to prove such equitable interest
and to prove payment of purchase money or rent…” See also Etajata
v. Ologbo (2007) 16 NWLR (Pt. 1061) Pg. 554; (2007) LPELR-1171 (SC)
Pg. 55-56, Paras. F - B; and First Bank of Nig. Plc v. Okelewu & Anor
(2013) LPELR-20155 (CA) Pg. 43-44, Paras. G - C where it was held by
45 this Court that: “.... an unregistered registrable instrument, though,

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is not admissible to prove title, is admissible to prove payment of

money and coupled with possession of land by the purchaser it may
give rise to an equitable interest ...”
(P. 135 lines 23 - 45; P. 136 lines 1 - 5)
5
[5] Statute Bar – Limitation Law – The reason for limitation laws is to
ensure that a claimant files his suit timeously, when evidence is fresh
and available so as not to prejudice a defendant for lack of evidence
or dearth of witnesses.
10
Also, I consider apt by the words of my lord and learned brother,
GEORGEWILL, JCA in Wema Bank v. Owosho (Supra) at Pg. 25-28,
Paras. C - B where my lord held as follows:

15 “Now, the law on limitation of action is simply a rule of law,

codified in most jurisdictions into statutes of limitation, which
prohibits the commencement of stale claims. In its operation,
it extinguishes the right to action but not the cause of action
itself, which is rendered bare and unenforceable in a Court
20 of law. The rationale for limitation of time for the
commencement of action would seem to be that due to the
length of time that must have elapsed, a Defendant, on being
confronted with a stale claim, may have lost or due to
unavailability of materials evidence or death or unavailability
25 of vital key witnesses, due to no fault of his, necessary for his
defense which would have otherwise been available if the
claims were commenced timely within the period as allowed
under the relevant applicable limitation law. … However, in
law it has been well settled that the statute of limitation is an
30 equitable relief and thus must he pleaded before a Defendant
can rely on it… However, the issue of limitation of action has
evolved over the years to a jurisdictional issue and thus even
where it was not duly pleaded by a party so contending or
even suo motu by the Court ...”
35 (P. 134 lines 7 - 28)

[6] Litigation – Locus Standi – is the capacity of a person to institute an

action and a person who is in imminent danger from the conduct of
an adverse party has locus.
40
Locus Standi simply connotes the legal capacity of a party to institute an
action. A party who is in imminent danger of any conduct of the adverse
party has the locus standi to commence an action, see: Pam & Anor v.
Mohammed & Anor (2008) 16 NWLR (Pt. 1112) 1 SC; I am of the view that
45 the 2nd Respondent as 3rd Defendant against whom reliefs were sought

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had the locus standi to institute a Counter-claim against the Appellants

(Claimants) and the lower Court was perfectly in order to have entertained
and considered the said Counter-claim. (P. 119 lines 9 - 16)

5 [7] Litigation – Issue – Court is at liberty to adopt or reformulate issues

formulated by the parties provided that where it decides to reformulate
an issue, the issue reformulated must capture the issues formulated
by the parties.

10 However, I need to state just in brief that the law is trite that the trial Court
is not bound to adopt the issues nominated for determination by the
Claimants verbatim in the determination of the matter presented before it,
the Court is endowed with the discretion to reformulate the issues presented
by the parties before it, provided in so doing, it captures all the issues
15 raised by all the parties. The trial Court may elect to use or adopt the
issues formulated by either of the parties, or reformulate the issues;
however, such issues framed, reframed or formulated by the trial Judge
must be such that will adequately encapsulate all the issues raised by
the litigating parties and aid the Court in the just and fair determination of
20 the matter before it. In Okere v. State (2016) LPELR-26057 (SC) Pg. 30-
31, Paras. E - The Supreme Court of Nigeria per PETER-ODILI, JSC held
as follows:

“Again, to be highlighted is the fact that a respondent has

25 the right to formulate issues and the Court is at liberty to
choose either those identified by the appellant or those framed
by the respondent: or re­organized by the Court to simplify
its journey in the consideration of the appeal.”

30 See also Ekweghiariri v. Unachukwu & Ors (2013) LPELR- 22074 (CA)
Pg. 20-21, Paras. F - A; Alliance International Ltd v. Kolo International
Enterprises Ltd (2010) LPELR-3749 (CA) Pg. 14-15, Paras, F - D where
this Court held that: “It is settled position of the law; that a Court has
the power to adopt, modify or reframe the issues formulated for
35 determination by the parties. The guiding principle is that issues
formulated must lead to a proper determination of the dispute or
grievance between the parties ... In the course of reframing issues, a
trial court should be careful not to make out a case for a party, different
from the party’s case ...”
40 (P. 119 lines 26 - 45; P. 120 lines 1 - 7)

[8] Litigation – Evaluation of Evidence – The trial Court has the discretion
to evaluate parties’ evidence and ascribe probative value and an
appellate court will not interfere with such exercise of discretion
45 unless it is shown that the court erred in its evaluation.

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It is pertinent at this point to state the settled position of the law that the
admission and evaluation of evidence, the duty to discredit or disbelief
same and/or to attribute probative value to the evidence so admitted are
within the discretion of the Trial Court or the Tribunal (as the case may
5 be); and an Appellate Court will ordinarily not interfere with that discretion
unless it is established that the trial Court erred or committed a blunder in
its evaluation of the evidence presented before it. See Edolor v. Osayande
(1992) NWLR (Pt. 249) 524; (1992) LPELR-5053 (SC), Pg. 43-44, Paras.
G - A; Okunzua v. Amosu (1992) NWLR (Pt. 245) 416; (1992) LPELR-
10 2531 (SC), Pg. 20, Paras. D - E; Tukur v. UBA & Ors (2012) LPELR-9337
(SC), g. 45, Paras. B - E where ARIWOOLA, JSC held that: “Generally,
and it is settled law that the evaluation of evidence adduced and
ascription of probative value or weight to such evidence is the primary
duty of the trial judge who saw and heard the witnesses...” See also
15 UBA Plc v. J. I. Efemini & Sons (2018) LPELR-44150 (CA), Pg. 19-20,
Paras C - C. The Supreme Court in Mamuda v. State (2019) LPELR-
46343 (SC), Pg. 15-16, Paras. F - S, per MUHAMMAD, JSC held that:
“…The task of evaluating evidence and ascribing probative value to
it is the primary duty of the trial Court. The lower Court and indeed
20 this Court, unlike the trial Court, are handicapped when evaluation
of evidence, as in this case, is made an issue...”

In Anyah v. African Newspaper of Nig. Ltd (1992) NWLR (Pt. 247) Pg.
319; (1992) LPELR-511 (SC) Pg. 20-21, Paras. G - A, the Supreme Court
25 held that: “It is not in all cases that an appeal court will interfere with
the exercise of discretion by a trial Judge, simply because it: did not
favour one of the parties litigating before him. The Court will not
interfere with the exercise of discretion in the absence of proof that it
was wrongly exercised. You cannot lay down hard and fast rules as
30 to the exercise of judicial discretion by a court, for the moment you
do that, the discretion is fettered”

Also applicable to this point is the Supreme Court decision in Olatunbosun

v. Texaco Nig. Plc (2012) LPELR-7805 (SC) Pg. 18, Paras. C - D where
35 the Supreme Court held that: “…an appellate court like ours will not
interfere with the exercise of discretion of the court below merely
because this court would have acted differently…. this court will only
interfere where the discretion exercised is manifestly wrong, arbitrary,
reckless and injudicious.” As rightly held by my Lord, MUHAMMED,
40 JSC in Faleye & Ors v. Dada & Ors (2016) LPELR-40297 (SC) Pg. 33-34,
Paras. E - C: “… This Court has stated it times without number that it
is none of its functions or indeed that of an appellate Court to
substitute its own views of the evidence for those of the trial Court
that is better placed to deal with those matters. The appellate High
45 Court could only have interfered with findings of facts of the trial

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Customary Court when the findings are perverse and/or consequent

upon improper exercise of judicial discretion further resulting in
miscarriage of justice...”
(P. 121 lines 6 - 45; P. 122 lines 1 - 10)
5
[9] Litigation – Evaluation of Evidence – The privilege granted to the
trial court to evaluate evidence and ascribe probative value to it is
borne out of the vantage and unique position of the court to physically
see and hear witnesses give evidence.
10
For the purpose of clarity and avoidance of doubt on why the trial Court is
allowed such discretion with respect to the evaluation of evidence and
ascription of probative value to such evidence so tendered; the reason is
simply that the trial Judge is the only one who had the rare privilege of
15 seeing and hearing the parties before him; an opportunity which an
Appellate Court does not enjoy; as such an Appellate Court cannot interfere
with that discretion of the trial Judge except in special or exceptional
circumstances. (P. 121 lines 26 - 32)

20 [10] Justice – Equity – follows the law but where strict adherence to law
will lead to injustice, equity will step in to provide substantial justice
as equity looks at the substance and not the form.

As rightly held by the learned trial Judge, equity will not allow the law to be
25 used as an engine to defraud. As stated by this Court Per EKO, JCA (as
he then was; later JSC) in Uzoma v. Asodike (2009) LPELR-8421 (CA)
Pg. 19, Paras. A - B: “Equity, it is said follows the law. Accordingly, where
rigid or strict adherence to the letters of the statute will result in absurdity,
unfairness or injustice the courts in their interpretative and equitable
30 jurisdiction will yield to overriding interest of justice and allow substantial
justice to prevail. One of the readily available tools in this regard is the
principle of equity that looks at and upholds the substance and not the
form.”

35 See also Ekaete v. Union Bank of Nigeria Plc (2014) LPELR- 23111 (CA)
Pg. 66-61, Paras. F - B: where this Court held that “No Court
administering law and equity will allow technical arguments to defeat
the course of justice...” In MBA v. MBA (2018) LPELR- 44295 (SC) at
Pg. 31, Paras. A - C, my lord, AKA’AHS, JSC aptly stated that: “Where
40 facts and circumstances are presented to the Court from which the
Court exercises its discretion, it should be guided by law, justice and
common sense.” In the circumstance, the contention of the Appellant
that there was no proof or that it was not established that the outstanding
debt was ever paid in 1987 despite Exhibit P10 and the subsequent Exhibit
45 P39 and P66 already considered in this Judgment is nothing but an

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invitation to this Court to allow technicality defeat substantial justice.

(P. 130 lines 17 - 37)

[11] Judicial Decisions – Interference – An appellate court will not interfere

5 with the decision of a trial court to evaluate evidence, except where
the evidence is documentary and the trial court failed to properly
evaluate it.

However, there are exceptions to the settled issue on non­interference by

10 an Appellate Court with respect to evaluation of evidence which includes
circumstances where the evidence in question is documentary evidence;
in such circumstances, an appellate Court is at liberty to embark on
evaluation of evidence where the evaluation so done by the trial Court is
shown to be perverse. This Court, in Davies v. NDIC & Ors (2014) LPELR-
15 23763 (CA) Pg. 33, Paras. G - G held that: “...However, where the bone of
contention as to evaluation of evidence has to do with evaluation of
documentary evidence, this court is in a vantage position as the trial
court to examine and evaluate documentary evidence...” See also the
decision of the Supreme Court in CPC v. Ombugadu & Anor (2013) LPELR-
20 21007 (SC) Pg. 63-64, Paras. G - B where NGWUTA, JSC held that: “An
appellate Court enjoys the same position of the trial Court in
evaluation of documentary evidence as in this case where the
controversy is limited to the interpretation of documents. Where the
findings of the trial Judge on documentary evidence is perverse an
25 appellate Court will employ its appellate power to correct the
perversity...” (Underlined by me) (P. 122 lines 12 - 27)

Without more, the decision of the Supreme Court in Anyah v. African

Newspaper of Nig. Ltd (Supra) contains the most appropriate note on
30 which to conclude this issue: the Supreme Court aptly held that: “It is
not in all cases that an Appeal Court will interfere with the exercise
of discretion by a trial Judge, simply because it did not favour one
of the parties litigating before him. The Court will not interfere with
the exercise of discretion in the absence of proof that it was wrongly
35 exercised. The fact that the decision of the learned trial Judge did not
favour the Appellant is not enough ground to interfere or disturb the decision;
the Appellants must show that the decision appealed against is, as held
by the Supreme. Court in Olatubosun v. Texaco Nig. Plc (Supra); manifestly
wrong, arbitrary, reckless and injudicious or that the decision and findings
40 of the learned trial Judge are perverse and/or consequent upon improper
exercise of judicial discretion further resulting in miscarriage of justice as
held in Faleye & Ors v. Dada & Ors (Supra).
(P. 128 lines 39 - 45; P. 129 lines 1 - 7)

45 ABUBAKAR, JCA (Delivering the lead Judgment): This appeal is against the

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Judgment of the High Court of Lagos State, sitting in the Lagos Judicial Division,
delivered by L.A. OKUNNU, J. on the 28th day of January, 2008 in Suit No. 10/146/
98, the Judgment subject matter of this appeal is found at pages 674 - 693 of the
Records of Appeal, in the said Judgment the learned trial Judge found that the
5 Claimants (now Appellants in this appeal) did not succeed in proving their claim,
The Appellants as claimants at the Court below instituted action against the 1st
Respondent (1st Defendant), 2nd Defendant and 2nd Respondent who is a substitute
for 3rd Defendant. The parties amended their pleadings several times during the
course of trial; and tendered several Exhibits; while the Defendants (Respondents)
10 filed separate Counter-claims against the Claimants (Appellants). The 3rd Further
Amended Statement of Claim is contained at pages 382 - 398 of the Records of
Appeal; the 2nd Amended Statement of Defence of the 1st and 2nd Defendants is
contained at pages 425 - 428 of the Records of Appeal; the Appellants filed a
Reply to the 2nd Amended Statement of Defence as contained at pages 403 - 424
15 of the Records of Appeal.

The 2nd Respondent (3rd Defendant) equally filed a Statement of Defence and
Counter-claim; the Written Address filed in support of her Counter-Claim and against
the Claimant’s claim as contained at pages 524 - 533 of the Records of Appeal;
20 the Written Address of the 1st and 2nd Defendants in support of their Counter-Claim
and against the Claimant’s claim is contained at 534 - 544 of the Records of
Appeal; the Appellants (Claimants) Written Address in support of their Claim and
in Defence of the 1st and 2nd Defendant’s Counter­ Claim is contained at pages 545
- 591 of the Records of Appeal; while the Appellants (Claimants) filed another
25 Written Address in support of their Claim and a Defence to the Counter-Claim of
the 3rd Defendant (2nd Appellant) as contained at 592 - 617 of the Records of
Appeal. The 3rd Defendant (2nd Appellant) filed a Reply to the Written Address in
support of the 1st and 2nd Claimants (Appellants) Claim and the Defence to their
(3rd Defendant’s) Counter-Claim - this is contained at pages 627 - 633 of the
30 Records of Appeal.

The summary of the case is that the 1st and 2nd Appellants were customers of the
1st Respondent, took some loans which was said to have been settled by a
“Release” arrangement made sometimes in 1987; before the Appellants took
35 another set of loans from the 1st respondent purportedly using the same parcels of
land as used in the earlier loans that were said to have been settled by the “Release”.
In between the time of the release, and the new loans acquired by the Appellants
in 1988, the Appellants had sold to the 3rd Defendant Plots 1 - 3 of the parcels of
land, unknown to the 1st Respondent. The 3rd Respondent is claiming equitable
40 ownership of those lands claiming he bought for value and took possession on the
assurance by the Appellants that the Plots 1 - 3 have been released and free from
encumbrance. The Appellants contention inter alia is that the sale to the 3rd
Defendant was forceful and should be declared void; and that the loans due to
Claimants were statute-barred. After considering the case of all the parties; the
45 trial Court found against that Appellants and in favour of the 1st and 2nd Respondents.

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Nettled by the Judgment of the lower Court the Appellants filed a Notice of Appeal
containing nine grounds of appeal on the 29th day of April, 2008 as contained at
pages 694 - 701 of the Records of Appeal. The Appellants’ Brief of Argument was
filed by learned Counsel Oladisun Delano Esq on the 23rd day of February, 2015.
5 The 1st Respondent on the other hand filed its Brief of argument through learned
Counsel Martin Akpaka Esq. on the 1st day of July, 2015; it was deemed as properly
filed and served on the 26th day of October, 2018. The Appellants’ filed a Reply
Brief through Elvis Asia Esq. on the 18th day December, 2018 deemed as properly
filed and served on the 10th day of April, 2019. The 2nd Respondent did not file any
10 Brief in this Appeal. Learned counsel for the Appellants crafted 6 (six) issues for
determination as follows:

1. Whether there was privity of contract between the 1 st

Respondent and the 2 nd Respondent such that the 2 nd
15 Respondent had the locus standi to clothe the trial Court
with the jurisdiction to hear and/or determine 2 nd
Respondent’s Counter-claim against the 1st Respondent. (Issue
based on grounds one and two).

20 2. Whether it was proper for the Court below to ignore,

circumvent/sidetrack the relevant issues raised by the
Appellants and raise issues suo motu and determine the case
before it without hearing the Appellants on those issues.
(Ground 3).
25
3. Whether the judgment of the trial Court was not perverse
considering the pleadings, Exhibits P2, P7, P8, P9 and P28
which were unchallenged, uncontroverted, unrebutted and
not, disproved which the learned trial Judge ignored whilst
30 picking and choosing from Exhibit P10.

4. Whether the 2nd Appellant paid up the outstanding debt in

1987 (Issue base on ground five)

35 5. Whether it was lawful for the learned trial judge to give

judgment against a provision of a statute relevant to an issue
before him and which statute was brought to his notice or
attention. (Issue is based on ground six).

40 6. Whether the learned trial Judge was right in admitting Exhibit

P66 an unregistered registrable instrument as establishing
ownership of Plots 1 - 3 by the 2nd Respondent. (Issue is based
on ground seven)

45 The learned Counsel for the 1st Respondent on the other hand crafted 5 (five)

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issues for determination as follows:

1. Whether the trial Court directed itself to the materials placed

before it and properly evaluated the evidence adduced by
5 the parties in reaching its decision. (Issue based on ground 3
of the Notice of Appeal).

2. Whether the 1st Respondent was right in refusing to concur

with the 2nd Appellant in its bid to sell Plots 1, 2 and 3 of the
10 mortgaged property to a 3rd party having realized that the
property was already sold by the 2nd Appellant to the 2nd
Respondent as evidenced in Exh. P39 and Exh. P66. (Issue
based on ground 4 of the Notice).

15 3. Whether by the 1st Respondent’s refusal to concur in the sale

of the property to a 3rd party under the circumstances, the 2nd
Appellant had suffered any legally tenable damages as
claimed.

20 4. Whether EXHS. P39 (i.e. the Agreement for sale of Plots 1-3
to the 2nd Respondent and the Deed of Assignment thereon)
were rightly admitted by the learned trial court as evidence
of the transaction between the 2 nd Appellant and the 2nd
Respondent. (Issue based on ground 7 of the Notice).
25
5. Whether the trial Court was right in rejecting the Appellants
contention that the loan granted by the 1st Respondent to the
1st Appellant and the interest thereon were statute barred.
(Issue based on ground 6 of the Notice).
30
SUBMISSIONS OF COUNSEL FOR THE APPELLANTS

ISSUE ONE

35 Learned counsel for the Appellants referred to Exhibits P10 written by the 1st
Respondent to the Appellants; counsel argued that the said Exhibit P10 which
was heavily relied upon by the 2nd Respondent did not come out of the blues but
emanated from series of negotiations and correspondences between the Appellants
and the 2nd Respondent to with Exhibits P2 - P63. Counsel cited Attorney General
40 of Kaduna State & Ors v. Atta & Ors (1986) 4 NWLR (Pt. 38) Pg. 785 CA and
Alhaji Shuwa v. Chad Basin Development Authority (1991) 7 NWLR (Pt. 205) Pg.
550 CA and submitted that the Exhibits P2 - P63 must be construed together and
that the 2nd Respondent or any other third party was not in contemplation at the
time of making Exhibits P2 - P63; nor was any benefit or interest conferred on the
45 2nd Respondent; and that being a complete stranger to the contract between the

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Appellants and the 1st Respondent, the 2nd Respondent cannot base any claim on
the said contracts. Learned counsel further referred to the testimonies of DW2
506 & 509 of the Records of Appeal; paragraphs 5(i) and (ii) of the Respondent’s
Statement of Defence and Counter-claim at pages 64 - 65 of the Records of Appeal;
5 the findings of the learned trial Judge at page 686 of the Records of Appeal; and
the testimony of DW1 at pages 493 of the Records of Appeal to submit that it is
clear that there was no nexus between the 1st Respondent and 2nd Respondent.

Learned counsel for the Appellant contended that the 1st Respondent would not
10 have complained of not being aware of the sale of plots 1 - 3 if indeed the said
plots were released to the Appellants by virtue of Exhibit P10 as argued by the 1st
Respondent who was not privy to the relationship between the Appellants and the
2nd Respondent. Counsel submitted that the trial Court admitted inadmissible
evidence to arrive at the conclusion that there was evidence of payment of interest;
15 and that the trial Court failed to give adequate consideration to most of the Exhibits
tendered by the Appellants and wrongly found on the principle of equity. Counsel
further submitted that the testimony of DW3 at page 521 of the Records of Appeal
as well as that of DW2 corroborated the testimony of the Appellants at paragraphs
39(a) & (b), 40 and 42 of the Appellants’ Amended Statement of Claim at pages
20 382 - 389 of the Records of Appeal and the evidence in support thereof at pages
461 - 465 of the Records of Appeal. Learned counsel contended that the relationship
between the Appellant and the 2nd Respondent is regulated by Exhibits P39 - P66
and that the 1st Respondent was neither a party to nor was any benefit conferred
on the 2nd Respondent by any of these Exhibits.
25
Learned counsel further referred to the testimony of CW1 at page 444 of the
Records of Appeal; paragraph 4(f) of the Appellant’s Reply at page 132 of the
Records of Appeal; and the uncontroverted averment at paragraph 42 of the Amended
Statement of Claim at pages 382 - 398 of the Records of Appeal to submit that the
30 1st Respondent was not a party to the transaction between the Appellants and the
2nd Respondent and that the 1st Respondent did not give any undertaking to pass
good title. Counsel also referred to paragraph 2 of the Appellant’s Defence at page
139 of the Records of Appeal to submit that the Appellants specifically averred
that the 2nd Respondent lacked the locus standi to sue the 1st Respondent as
35 there was no privity of contract between them. Learned counsel further submitted
that there is nothing in the evidence led by the Appellants to suggest that even if
by inference that the 2nd Respondent or her agent was a party to Exhibits P61 -
P63; and that no obligation arising therefrom can be enforced by the 2nd Respondent
against either or both of the Appellants and the 1st Respondent. Counsel cited
40 R.T. Briscoe (Nig.) Ltd v. Universal Insurance Limited (1996) 2 ALR COMM 263
and “Jus Quasitum” as defined in the Black’s Law Dictionary, 7th Ed. Pg. 867 to
submit that only a person who is a party to a contract can sue on it in law does not
know anything like jus quasitum tertia arising by way of contract.

45 Learned counsel argued that the 1st Respondent acted in collusion with the 2nd

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Respondent, hence its failure to challenge the claims of the 2nd Respondent; and
that the 1st Respondent had reaped so much out of the transaction it had with the
Appellants in which 1st Respondent acquired the 2nd Appellant’s property at Maryland
and sold some of the 1st Appellant’s plots at Opebi all under the same mortgage
5 transaction as shown by Exhibits P40 - P43 by which the 1st Respondent sold the
plots of land it claimed to have released to the 1st Appellant by Exhibit P10. Counsels
urge this Court to note that Exhibits P40 - P43 are all dated subsequent to Exhibit
P10 which precedes the relationship between the 2 nd Appellant and the 2nd
Respondent represented by Exhibits P39 and P66. Learned counsel submitted
10 that the 1st Respondent was not a party to the transaction between the 2nd Appellant
and the 1st Respondent; and that the 2nd Respondent was equally not a party to
the Relationship between the Appellants and the 1st Respondent; and that there
was no nexus or legal ties linking one of them to the various agreements between
the Appellants and any one of them. Counsel referred to Federal Mortgage Bank
15 Ltd. v. IDK (1995) 6 NWLR (Pt. 400) 226 and Bank of Baroda v. Iyalabani Ltd
(1998) 2 NWLR (Pt. 539) 600 to contend that where a party lacks the locus standi
to bring such an action, the Court will be incompetent or lack jurisdiction to entertain
the action.

20 Learned counsel reiterated that in the instant case, the 2nd Respondent who is not
a party to Exhibit P2 has no locus standi to seek any relief against the 1 st
Respondent based on the relationship between the Appellants and the 1 st
Respondents; nor can the 2nd Respondent pray the Court to compel the 1st
Respondent to execute a Deed of Release for Plots 1 - 3 when there is no privity
25 of contract between them and when the 1st Respondent never undertook to pass
good title to the 2nd Respondent as was the case in Exhibits P8 and P9. Counsel
referred to Adesokan v. Adetunji (1991) 5 NWLR (Pt. 346) Pg. 540 to submit that
where a Plaintiff is found to lack the locus standi to maintain an action, the proper
order to be made by the Court is to strike out the action and not to dismiss it.
30 Counsel relied on EFCC v. Ekeocha (2009) All FWLR (Pt. 458) Pg. 310; A.G.
Lagos State. v. Dosunmu (1989) 3 NWLR (Pt. 111) Pg. 552 Ratio 6; Nokoprise
Int. Co Ltd v. Do Best Corpn. (1997) 9 NWLR (Pt. 570) g. 334 Ratio 2 and Dada v.
Dosunmu (2006) 12 MJSC (Pt. 115) Pg. 149 - 150, Para. G to urge this Court to
hold that the 2nd Respondent has no locus standi to counter claim against the 1st
35 Respondent; and that the lower Court was obliged to first consider the issue of
competence of the 2nd Respondent’s Counter­Claim and the jurisdiction of the
lower Court to entertain same which was raised by the Appellants before delving
into other issues. Citing Ezeafulukwe v. John Holt Ltd (1996) 2 NWLR (Pt. 432)
Pg. 511 SC, the Appellants’ counsel submitted that the 2nd Respondent failed to
40 establish that he is competent to sue as he did. Learned counsel relied on Sa’ad
v. Maifata (2009) All FWLR (Pt. 466) Pg. 1930 at 1948, Paras. E - G to submit that
where a Court lacks jurisdiction, the question of doing substantial justice is not
relevant.

45 ISSUE TWO

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In the Appellants brief of argument, learned Counsel for the Appellants just
reproduced the issue for determination and submitted no argument. There is
therefore nothing to reproduce under issue for determination number two.

5 ISSUE THREE

Learned counsel for the Appellants relied on Gbadamosi v. Kabo Travels Ltd (2000)
8 NWLR (Pt. 668) Pg. 243 Ratio 36 and referred to paragraph 2 of the Respondents’
Statement of Defence at page 425 of the Records of Appeal to submit that the
10 Respondents admitted paragraphs 1, 3 - 8, 13, 14, 21 - 23 and 25 of the Appellants’
3rd Further Amended Statement of Claim at pages 382 - 398 of the Records of
Appeal and that as such the said averments of the Appellants should be taken as
established between the Appellants and the 1st and 2nd Respondents. Counsel
further submitted that in addition to the admitted paragraphs, the case presented
15 before the trial Court as it pertains to plots 1 - 3 and Exhibit 10 comprises of
pleadings, oral and documentary evidence. Learned counsel referred to paragraphs
6(a) - (f) and 7(a) - (h) of the Appellants’ Reply at pages 405 - 406 of the Records
of Appeal and submitted that the 2nd Respondent is deemed to have admitted
paragraphs 32, 34, 36(a) & (b), 33(a) - (d), 39(a) & (b), 40, 41, 42 and 44 of the
20 Appellants’ 3rd Further Amended Statement of Claim at pages 382 - 398 of the
Records of Appeal. Counsel cited Okomu Oil Palm Co. v. Iserhienrhien (1996) 1
NWLR (Pt. 422) Pg. 94 Ratio 9 to submit that the Appellants amended their
Statement of Claim, the 1st Respondent also amended its Statement of Defence
but the 2nd Respondent failed to amend her Statement of Defence.
25
Learned counsel further referred to testimony of the Appellants’ Witness at page
445 of the Records of Appeal and argued that the questions of resale and repudiation
of the sale of plots 1 - 3 did not arise because the 1st Defendant in whom the legal
estate in the property is vested has not sold. Counsel contended that the sale of
30 plots 1 - 3 to the 3rd Defendant was contingent upon the discharge of the property
and was therefore not fraudulent, Counsel referred to pages 461- 42 of the Records
of Appeal and Exhibits P10, P55 and PS6 to submit that no property/debt swap
agreement subsists between the 2nd Appellant and the 1st Defendant; but that the
1st Defendant coerced the 2nd Appellant into executing two mutually exclusive
35 Deeds of Assignment in its favour. Learned counsel referred to paragraph 5(iii) of
the 3rd Defendant’s Statement of Defence at page 65 of the Records and paragraph
ii of the s” Defendant’s Reply to the Appellant’s Defence to the Counter-Claim to
submit that the 3rd Defendants case was that the 2nd Appellant’s loan for which the
2nd Appellant’s to the 1st Defendant had been discharged in an approved settlement
40 deal between the 1st Defendant and the 2nd Appellant land was mortgaged.

Learned counsel also referred to the testimony of DW1 under cross-examination

and the testimony of DW2 - the 2nd Respondent under examination in chief and
cross examination to submit that the trial Court failed to evaluate the oral evidence
45 adduced by the parties especially as it relates to Exhibit 10; counsel referred to

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Divine Ideas Ltd v. Umoru (2007) All FWLR (Pt. 380) Pg. 1468 Ratio 12 and
Fagunwa v. Adibi (2004) FWLR (Pt. 7.26) Pg. 340 Ratio 7 to submit that other
documentary evidence admitted in evidence with respect to the Plots 1- 3 or
Exhibit P1 includes Exhibits P2, P4, P7 - P9 and P28 which were also ignored by
5 the learned trial Judge. Counsel further argued that the trial Court construed Exhibit
10 as a document of title and that case of the 1st and 2nd Respondents was based
on this Exhibits. Counsel referred to Exhibits P40 - P43, P65, P8, P9 and P28;
and then relied on Fagunwa v. Adibi (Supra) at Pg. 358, Paras E-H and U.B.A v.
BTL Industries Ltd (2007) All FWLR (Pt. 352) PG. 1615 Ratio 23 to submit that
10 the learned trial Judge in the instant case failed to consider all the documentary
evidence pleaded, tendered and admitted in evidence on which the Appellants
placed heavy reliance.

Learned counsel relied on Suberu v. A.I.S. & Ltd (2001) All FWLR (Pt. 380) Pg.
15 1512 Ratio 5 to submit that the provisions of Clauses 2 and 3 of Exhibit P2 overrides
Exhibit P10 which is a mere letter of offer which was not accepted; and that
Exhibit P59 shows that there was no agreement on the figures contained in Exhibit
P10 ipso facto there was no agreement on the acquisition price which was
unilaterally fixed by the 1st Defendant who assumed and exercised the power of
20 acquisition which it did not possess as an unpaid Mortgagee who is a party to a
Deed of Legal Mortgage. Citing Adebanjo v. Brown (1990) 2 NSCC 336 Ratio 6
learned counsel for the Appellants submitted that the learned trial Judge erred in
ignoring Exhibits P2, P4, P7 - pg and P28 which were unchallenged and
uncontroverted; that the learned trial Judge and the parties are bound by the Ruling
25 of the learned trial Judge delivered on the 6th of July, 2004 contained at pages 313
- 323 of the Records of Appeal; and that by picking and choosing in the interpretation
of Exhibit P10, the learned trial Judge did grave injustice to the 2nd Appellant
whose testimony at page 486 of the Records of Appeal was unchallenged. Counsel
submitted that if the learned trial Judge had not shut his eyes to the pleadings and
30 Exhibits tendered by the Appellants his findings would have been different and it
would have reflected the correct inference to be drawn from the pleadings and
Exhibits.

Learned counsel referred to the findings of the learned trial Judge at page 682 of
35 the Records of Appeal and submitted that it is not evident what bundle of documents
the learned trial Judge was referring to; but that the learned trial Judge clearly
based his finding on Exhibit P10. counsel referred to the testimony of DW1 at
page 461 of the Records of Appeal and also referred to page 405 of the Records of
Appeal to argue that if the trial Judge had considered all the pleadings and evaluated
40 all the Exhibits tendered by the Appellants it would have found that Exhibit P55
was replied by Exhibit P57 and that Exhibit P56 was replied by Exhibit P58.
Counsel cited Hensaw v. Effanga (2009) All FWLR (Pt. 466) 1901 at 1915, Paras.
G - H and urged this Court to critically evaluate Exhibits P1, P2, P7 – P10, P28,
P37, P38 and P40- P43 and draw the necessary inference therefrom.
45

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ISSUE FOUR

Learned counsel for the Appellant referred to paragraph 6 of the 2nd Respondent’s
Statement of Defence at page 66 of the Records of Appeal; paragraph 6 of the 2nd
5 Further Amended Statement of Defence at page 425 of the Records of Appeal;
paragraph 6(a) - (f) of the Appellant’s Reply to the 2nd Further Amended Statement
of Defence at pages 405 - 406 of the Records of Appeal; and paragraph 10 of the
Reply to the 3rd Defendant’s Statement of Defence at page 135 of the Records of
Appeal to submit that the outstanding debt was never paid in 1987; that the
10 Appellant’s raised this as an issue before the lower Court at pages 563 - 564 of
the Records of Appeal but the lower Court failed to consider this issue. counsel
further submitted that CW1 in his testimony at page 241 of the Records of Appeal
denied the discharge of any debt by the Appellants as at 10th December, 1987;
and that CW1 referred to Exhibits 46A – C5 and at page 463 of the Records of
15 Appeal, CW1 testified that the mortgage transaction is proof that the 2nd Appellant
was indebted to the 1st Defendant/Mortgagee and that as at 16th December, 1987
the balance outstanding against the 2nd Appellant was N5,837,031.83.

Learned counsel further referred to the testimony of DW1 at page 492 and 496 -
20 497 of the Records of Appeal; and then argued that by Paragraph 2 of its 2nd
Amended Statement of Defence at page 426 of the Records of Appeal, the 1st
Respondent admitted paragraphs 4 and 5 of the 3rd Further Amended Statement of
Claim at pages 382- 398 of the Records of Appeal at pages 492 - 499 of the
Records of Appeal. Counsel further submitted that the testimony of CW1 supports
25 the pleadings of the Appellants at pages 403 - 424 of the Records of Appeal in
paragraphs 6(b) - 6(f) and 11 of the Reply to the 2nd Amended Statement of Defence
of the 1st Respondent contained at pages 333 - 348 of the Records of Appeal.
Learned counsel relied on Ogun v. Asemah (2002) 4 NWLR (Pt. 756) g. 208 and
Akibu v. Opaleye & Anor (1974) 11 SC Pg. 189 to submit that all the pleadings
30 and evidence referred to above were neither challenged nor contradicted and ought
to be accepted. Counsel further submitted that no evidence was led by the 1st
Respondent of any payment by the 1st Appellant; that DW1 who earlier testified as
to payment at page 492 of the Records of appeal contradicted himself under
cross-examination at page 496 - 497 of the Records of Appeal when Exhibit P10
35 was shown to him. Learned counsel relied on Ezemba v. Ibeneme (2004) 14
NWLR (Pt. 849) Pg. 617 to submit that DW1 cannot be treated as a witness of
truth and his testimony cannot be regarded as credible.

ISSUE FIVE
40
Learned counsel for the Appellants referred to paragraph 45 of the 3rd Further
Amended Statement of Claim at page 393 of the Records of Appeal; Exhibit P4;
paragraph 24(c) of the Defence to Counter­Claim at page 465 of the Records of
Appeal; and Exhibit P5 to contend that the date of accrual of the interests and the
45 date the right to recover the sum had become statute barred by virtue of Section

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30(1) of the Limitation Law of Lagos State, Cap 70, Laws of Lagos State, 1973
(which is applicable to the instant transaction). Counsel further submitted that the
actions for the recovery of arrears of interest in respect of the N500,000.00 overdraft
ought to have been instituted between 21/10/88 and 20/10/94 while that of the
5 N100,000.00 overdraft ought to have been instituted between 22/9/88 and 21/9/94.
Learned counsel submitted that the learned trial Judge was wrong in holding at
page 691 of the Records of Appeal that interest on the total sum of N600,000.00
overdrafts was not statute barred upon reliance on Exhibits P51 and P26 written
on the 26th of February, 1996 and 21st of June, 1996 respectively.
10
Learned counsel argued that a fresh cause of action cannot arise with each demand
simpliciter that is made without an acknowledgment as stipulated in Sections 37
- 44 of the Limitation law and that Section 45(1) specifically provided that every
acknowledgment shall be in writing and signed by the person making the
15 acknowledgment. Counsel referred to Ifeajuna v. Ifeajuna (2000) 9 NWLR (Pt.
671) Pg, 107 at 114, Para. H to submit that for a demand to revive the Limitation
Period, such a demand must be made within the period of limitation and not after;
and that any demand made after the expiration of the limitation period cannot
revive the limitation. Learned counsel relied on Mills v. Renner 6 WACA Pg. 144 at
20 146 to submit that the period within which the interests on the N500,000.00 and
N100,000.00 facilities could have been recovered had expired since 1994 and as
such Exhibits P51 and P26 written in 1996 were inapplicable. Counsel further
submitted that a demand must be express; that there is nothing like implied
demand or constructive notice as used by the learned trial Judge at pages 691 -
25 692 of the Records of Appeal; and that at paragraph 2 of the 2nd Amended Statement
of Defence, the 1st Respondent admitted paragraphs 5 and 7 of the 3rd Further
Amended Statement of Claim.

ISSUE SIX
30
Learned counsel referred to paragraphs 5(iii) - (vii) of the 2nd Respondent’s Statement
of Defence and Counter-Claim at pages 65 - 66 of the Records of Appeal; the
testimony of DW1 under cross­ examination at pages 500 and 503 of the Records
of Appeal; the testimony in-chief of DW2 at page 507 of the Records of Appeal and
35 under cross-examination at page 510 of the Records of Appeal. Counsel then
cited Divine Ideas Ltd v. Umoru (2007) All FWLR (Pt. 380) Pg. 1468 at 1505, Para.
B and Emenyonu v. Udoh (2000) 9 NWLR (Pt. 671) Pg. 25 at 40-41, Paras. H - A
to submit that in an action for declaration of title to land, where the Plaintiff fails to
discharge the ‘burden of proving his root of title to land, he is not entitled to the
40 declaration sought; and he cannot also fall back on long possession and acts of
ownership.

Learned counsel submitted that while the legal adviser to the 2nd Respondent
obtained certified true copies of Exhibits P64, P40, and P65 from the Lands Registry,
45 he failed to formally write the legal department of the 1st Respondent to ask for an

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undertaking that the 1st Respondent as the Mortgagee would pass good title to the
2nd Respondent; while the Solicitors to the 2nd Defendant were able to confirm from
the Land Registry that Plots 1 - 3 and 7 - 10 were still mortgaged as at 6th of
September, 1996 as per Exhibit P28 which DW1 confirmed was not objected to.
5 Counsel referred to the reliefs claimed by the 2nd Respondent at page 67 of the
Records of Appeal and submitted that at pages 684 - 686 of the Records of Appeal,
the learned trial Judge relied on Exhibits P66 to find title to plots 1 - 3 in favour of
the 2nd Respondent. Learned counsel argued that by granting the reliefs claimed
by the 2nd Respondent, the learned trial Judge had thereby ordered specific
10 performance against the 1st and 2nd Defendants who were not privy to the agreement
and also against the 2nd Appellant from whom the legal estate in the land has
passed.

Learned counsel further submitted that the order for specific performance and the
15 declaration of title in favour of the 2nd Respondent were grounded on Exhibit P66
which is an unregistered registrable instrument. Counsel referred to Section 15 of
the Land Instrument Registration law of Lagos State; Ogbimi v. Niger Construction
Ltd (2006) All FWLR (Pt. 317) Pg. 390 at 400-402, Paras. H - C; Adedeji v. NBN
Ltd (1989) 1 NWLR (Pt. 96) Pg, 5 and Akintola v. Solano (1986) 2 NWLR (Pt. 24)
20 Pg. 598 279 to submit that no instrument shall be pleaded or given in evidence in
any Court as affecting any land unless the same shall have been registered.
Learned counsel further referred to Ogunsola v. National Insurance Corporation of
Nigeria (NICON) (2010) 6 NMLR Pg. 363 at 369, Paras. 18 and Klifco (Nig) Ltd v.
N.S.I.T.F.M.B (2005) 6 NWLR (Pt. 922) Pg. 445 at 456, Paras C - F to submit that
25 the trial Court simply shut its eyes to the issues and authorities placed before it.
Counsel referred to Exhibits P1, P2, P4, P10, P40 - P43, P65, P55 - P58 and
P28; and then cited Jolasun v. Bamgboye (2011) 16 WRN Pg. 1 at 20, Paras. 15
- 20 & Pg. 24, Lines 15-20 and Yaro v. AC Ltd (2007) 10 MJSC (Pt. 186) Pg. 203,
Para. G to submit that having found that no Deed of Release was executed in
30 respect of Plots 1 - 3, the trial Court relied on the recitals as well as tenor of
Exhibit P66 to raise the issue of estoppel, equity and unconscionable behavior
against the Appellants. Learned counsel also referred to Exhibits P46 and P50,
paragraphs 38 (a) - (c) of the 3rd Further Amended Statement of Defence at page
392 of the Records of Appeal; the testimony of CW1 at page 444 of the Records of
35 Appeal and the findings of the learned trial Judge at pages 689 and 685 of the
Records of Appeal.

Learned counsel cited Olale v. Ekwelendu (1989) 4 NWLR (Pt. 115) Pg, 326 at
360-361, Para H - A; Bank of the North Ltd v. Bello (2000) 7 NWLR (Pt. 664) Pg.
40 244 at 257, Paras. C - E; Adetono v. Zenith Int’l Bank Plc (2011) 12 MJSC (Pt.
111) Pg. 75 at 91, Para. A - E; Molade v. Molade (1953) SCNLR Pg. 206 to submit
that legal estate in a mortgaged property passes to the Mortgagee if it is a legal
mortgage. Counsel referred to L.S.D.P.C v. N.L. & S.F. Ltd (1992) 5 NWLR (Pt.
244) Pg. 653 at. 669-670, Para F - B; Elkali & Anor v. Fawaz 6 WACA Pg. 212;
45 Taylor v. Arthur 14 MACA Pg. 179; Nig. Housing Dev. Society Ltd & Anor v. Mumuni

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(1997) NSCC Pg .. 65 at 75, Paras. 30-35 and Awojugbage Light Ind. Ltd v.
Chinukwe (2004) All FWLR (Pt. 229) Pg. 943 at 914, Para E - G to submit that by
virtue of the fact that Exhibit Pi was mortgaged and by virtue of Exhibit P46, the 2nd
Respondent was aware that the right of possession was vested in the 1 st
5 Respondent. Learned counsel urged this Court to uphold this appeal and set
aside the judgment of the lower Court and grant the reliefs claimed by the Appellants
in their 3rd Further Amended Statement of Claim.

SUBMISSIONS OF COUNSEL FOR THE 1ST RESPONDENT

10
ISSUE ONE

Learned Counsel for the 1st Respondent referred to pages 674 - 682 of the Records
of Appeal to submit that the trial Court reviewed all the evidence and pleadings
15 adduced by the parities before it; and thereafter formulated 7 (seven) issues for
determination of all the issues between the parties. Counsel relied on Kegwuoha
v. Ohawuchi (1996) 31 NWLR (Pt. 435) Pg. 146 at 161 and Emavworhe Etajata &
2 Ors v. Pete Igbini Plogboo & Anor (2007) 6 SC (Pt. 11) Pg. 24 & 26 to submit
that the approach adopted by the learned trial Judge was in order and unassailable.
20 Learned counsel further submitted that having painstakingly reviewed the pleadings
and analyzed the evidence adduced by the parties, and having considered the
addresses of counsel, the trial Court reached its decision covering the real
questions in controversy and all issues raised. Counsel submitted that there is
nothing on record showing a modicum of perversion or denial of fair hearing in the
25 judgment; and that the duty of the Court as an umpire is to do a substantial justice
to the parties in the matter before it. Learned counsel urged this Court to resolve
this issue in favor of the Respondent against the Appellants.

ISSUE TWO
30
Learned counsel argued that one of the principal claims of the Appellants against
the 1st Respondent was that it refused to confirm that Plots 1 - 3 were still mortgaged
to the 1st Respondent even after the settlement deal articulated in Exhibit 10.
Counsel referred to paragraph 47(1) of the Appellants’ 3rd Amended Statement of
35 Claim to submit that several of the reliefs sought by the Appellants centered on
their claim that plots 1 - 3 constituted part of the subsisting mortgaged property
and its main object was to keep hold on those plots together with the rest of the
plots constituted in the deed of charge registered as 93/93/1671 of 9/1/78 and
with the sole purpose of voiding the sale transaction between the 2nd Appellant and
40 2nd Respondent. Learned counsel submitted that the 1st Respondent denied that
the said Plots 1-3 were still mortgaged to it because it was clearly understood
that Exhibits P4 and P5 were to be secured with plots 7 - 10 only; that by virtue of
Exhibit 24, Plots 1 - 3 had already been legitimately and effectively sold to the 2nd
Respondent after it had been released to the 2nd Appellant through Exhibit P10;
45 and that it would be unconscionable for the 1st Respondent to join the 2nd Appellant

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in fostering injustice on the 2nd Respondent.

Learned counsel for the 1st Respondent further submitted that after the settlement
in Exhibit P10 which was made on the 12th of November, 1987, the 1st Respondent
5 ceased to lay any claim or exercise any hold on Plots 1 - 3; and that the Appellants’
sale of Plots 1- 3 to the 2nd Respondent was made on the 16th of December, 1987
- way before the Appellants requested for fresh facility and the re­encumbrance
transaction. Counsel submitted that Exhibits 39 and 66 show that the transaction
was an unconditional one with the 2nd Appellant unequivocally representing that
10 the previous mortgage had been discharged; and it also declared that it was
transacting as a beneficial owner. Counsel further submitted that no responsible
banker would have ignored these facts at the pain of unnecessary litigation. Learned
counsel further submitted that it was not part of the agreement that the loan
granted to the Appellants was to be repaid from the sale of the mortgaged property.
15 Counsel submitted that the 1st Respondent’s duty was to release the property
upon liquidation of the loan or to exercise its right of sale; and that it was the 2nd
Appellant’s duty to source for money and repay the loan.

Learned counsel contended that it was only when the debt would have been settled
20 and the 1st Respondent refused to issue a release that the issue of depriving the
2nd Appellant of the income would have made from the sale to a subsequent buyer
would have arisen. Learned counsel argued that it was despicable for the Appellants
who have benefitted from an agreement with the 2nd Respondent to turn around by
some subterfuge and seek to void it. Counsel referred to Adedeji v. National Bank
25 of Nigeria (1989) 1 NWLR (Pt. 96) Pg. 212 at 226-221 and submitted that the 1st
Respondent was right in refusing to concur with the 2nd Appellant in its bid to sell
plots 1-3 of the Opebi Road Property to a third party. Learned counsel argued that
there was no obligation or duty under the agreement on 1st Respondent to join
hands with the Appellant in raising money for repayment of the loan; and that the
30 claim based on the purported loss of profit as a result of the 1st Respondent’s
refusal to issue a release for the sale of Plots 1 - 3 to a third party has no legal
basis and must therefore fail. Counsel urged this Court to resolve this issue in
favour of the Respondent.

35 ISSUE THREE

Learned counsel for the 1st Respondent submitted that the essence of the
Appellants’ claims on the basis of the 1st Respondent’s refusal to confirm the sale
of Plots 1 - 3 of the Opebi Road Property is to surreptitiously implant a claim for
40 special damages against the 1st Respondent. Counsel relied on Eastern Breweries
Plc & Anor v. Henry Nwokoro (2012) 14 NWLR (Pt. 1321) Pg. 488 and GFK
Investment Ltd. v. Nitel Plc (2009) 15 NWLR (Pt. 1164) Pg. 344 to submit that a
claim for damages could only arise if there is a breach of legal duty; and where the
damages recoverable against the party in breach are such loss that is within the
45 reasonable contemplation of the parties when they were entering into the contract;

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and the aim will be to restore the Claimant monetarily as far as practicable to the
position he would have been but for the breach; and such claim must be specifically
proved. Learned counsel argued that a claim for loss of profit to the Appellants
was never within the reasonable contemplation of the parties at the time they
5 entered into the agreement; referring to Exhibit P2 - the Deed of Legal Mortgage,
counsel submitted that there is no provision requiring the 1st Respondent to comply
with the Appellant’s direction on the sale of the mortgaged property.

Learned counsel further submitted that there was no duty on the 1st Respondent
10 to assist or cooperate with the Appellants in finding buyers for the property; and it
was not part of the agreement that the repayment of the loan granted pursuant to
Exhibits P4 and P5 was to be sourced from the sale of the property. Counsel
contended that it was the duty of the Appellants to Source for money any how to
repay the loan and thereafter the 1st Respondent would be bound to execute a
15 Deed of Release in favour of the 2nd Appellant; or, alternatively for the 1st Respondent
to exercise its right of sale of the property as an unpaid mortgage. Learned counsel
referred to Professor I. O. Smith, Practical Approach to Law of Real Property in
Nigeria, 1999, Pg. 236 to submit that the essence of providing security by way of
legal mortgage is to hedge against the borrower’s default in the payment of the
20 debt so secured; and that by its nature, a legal or equitable conveyance of title as
security for the payment of debt or discharge of some other obligation for which it
is given is subject to a condition that the title shall be re-conveyed if the mortgaged
debt is liquidated,

25 Learned counsel further argued that the obligation of the 1st Respondent was not
to sell the property but to re-convey after the 2nd Appellant’s liquidation of the debt;
and that the 1st Respondent’s cooperation with the Appellants in the sale of the
property for settlement of the debt was only an indulgence and not a duty.

30 Counsel contended that the Agreement empowered the 1st Respondent to exercise
its right of sale as unpaid mortgagee; and that the Appellants’ attempt at extracting
damages from the 1st Respondent, even if it was responsible for the Appellants’
collection of lower premium from the sale, is totally unwarranted and a condemnable
attempt at gold digging. Learned counsel for the 1st Respondent urged this Court
35 to resolve this issue against the Appellants because the Appellants have suffered
no loss or damages attributable to the act or omission of the 1st Respondent.

ISSUE FOUR

40 Learned counsel for the 1st Respondent referred to paragraphs 47(iv) - (vii) & (ix) at
pages 393 - 394; and also to pages 438 - 465 of the Records of Appeal to submit
that the Appellants pleaded Exhibit P39 and admitted that the documents were
executed by the 2nd Appellant and the 2nd Respondent; and that Exhibit P66 was
pleaded by the 2nd Respondent. Counsel argued that both parties led evidence to
45 the effect that those documents articulated the transaction between them relating

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to the property; and that there was no dispute at all between them as to the sales
transaction. Learned counsel submitted that the trial Court was therefore bound to
admit the documents - Exhibits P39 and P66 at least as evidence of the transactions
between the parties as it would have been inappropriate for the Court not to have
5 admitted them since they were pleaded by the Appellants and mentioned in the
Appellants’ oral testimonies before the trial Court.

Learned counsel referred to Hamidu v. Saha Ventures Ltd (2004) 7 NWLR (Pt.
813) Pg. 618 at 649; Isistor v. Fakorede (2008) 1 NWLR (Pt. 1069) Pg. 602 at
10 615-626; Okoye v. Dumez Nig. Ltd (1985) 1 NWLR (Pt. 4) Pg. 783 at 790; Bucknor-
Mcleans v. Inlaks (1930) 8-11 SC, PG 1 and Agwunedu v. Onwumere (1994) 1
NWLR (Pt. 321) Pg. 375 to submit that an unregistered registrable instrument is
admissible to prove equitable interest and payment of consideration or purchase
price. Counsel further submitted that there is no controversy as to the fact that
15 Exhibits P39 and P66 were made by the 2nd Appellant and the husband of the 2nd
Respondent with respect Plots 1 - 3; but that the dispute is that while the 2nd
Respondent firmly asserted that they were made on the 16th of December, 1987
as shown on the said documents; the 2nd Appellant is contending that they were
not made on the said date without producing any proof or contrary document to
20 show or prove that they were made on a different date.

Learned counsel cited Alhaji A.A. Sanyinna v. AIB & Anor (2001) 4 NWLR (Pt.
703) Pg. 355 and Nicon v. Power & Industrial Engr Co. Ltd (1986) 1 SC Pg. 1 at 52
to submit that the learned trial Judge was right in believing that Exhibits P39 and
25 P66 were made on the 16th of December, 1987; and that it would have been a slap
on equity for the lower Court to refuse to admit the documents. Counsel further
argued that even if the documents were’ not admitted in evidence, the decision of
the trial Court would still not have been materially different in the light of the fact
that both the Appellants and the 2nd Respondent admitted making the documents.
30 Learned counsel urged this Court to resolve this issue in favour of the Respondents;
i.e. that the documents were rightly admitted in proof of the transactions between
the 2nd Appellant and the 2nd Respondent and that the facts stated herein were the
true reflection of the parties’ agreements.

35 ISSUE FIVE

Learned counsel for the 1st Respondent contended that the transaction that gave
rise to the instant case came about pursuant to Exhibit P4 and P5 made on 21st
and 22nd of April, 1988 respectively, wherein the 1st Respondent granted the 1st
40 Appellant a total loan of N600,000.00 which was secured by the equitable mortgage
of the 2nd Appellants property named as Plots 7 - 10 of the property at Opebi Link,
Road. Counsel submitted that the Appellant had consistently acknowledged their
indebtedness to the 1st Respondent; and never denied the debt but only raised the
issue of Statement of Account and that the interest on the loan had become
45 statute barred in 1994. Learned counsel argued that the learned trial Judge at

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page 691 of the Records of Appeal rightly rejected the Appellants’ claim and noted
that the 1st Respondent had consistently demanded for the payment of the loan
and interest and that a fresh cause of action arises with each demand that is
made.
5
Learned counsel further referred to Exhibits P12, P13, P14, P15, P16, P18, P22,
P24, P27, P30, P33, P34 and P35 at pages 243 - 244 and 247 – 251 of the
Records of Appeal to submit that before the 1st Respondent filed its Counter-Claim
in October, 2000, it had maintained consistent demand on the Appellants to settle
10 the debt; and that the Appellants had consistently admitted and acknowledged
the transaction and their indebtedness to the 1st Respondent, directly or impliedly.
Counsel referred to Section 38(1) & (2) of the Limitation Law of Lagos State, Cap
L68; University of Ibadan v. Adetoro (1991) 4 NWLR (Pt. 185) Pg. 375 at 385 - 386
and Nwadiaro & Ors v. SPDC (1990) 5 NWLR (Pt. 150) Pg. 322 at 338 - 339 to
15 submit that right of action accrues afresh upon acknowledgment. Learned counsel
further referred to Exhibit P52 to submit that the Appellants who had consistently
admitted their indebtedness to the 1st Respondent directly and impliedly even by
their Writ of Summons, Pleadings and Evidence led at the trial ironically turned
around to contend that the debt was time barred which amounts to blowing hot
20 and cold at the same time.

Learned counsel urged this Court to resolve this issue in the affirmative and hold
that the Appellants’ claim that the loan or the interest thereon had become statute
barred is preposterous and an inglorious attempt to deny it liability which this
25 Court must reject. Counsel further submitted that this appeal is lacking in merit
and that there is no real basis for appealing against the decision of the trial Court.
Learned counsel urged this Court to reject the submissions of the Appellants
totally; affirm the decision of the trial Court and dismiss this appeal because it is
unmeritorious and baseless.
30
APPELLANT’S REPLY

Learned counsel for the Appellants in the Reply Brief referred to issue No.3 of the
1st Respondent’s Brief and argued that the said issue as formulated was not indicated
35 to have been formulated from any of the Grounds of Appeal; and that the Appellants
did not raise any issue relating to damages in the Appellants’ Brief; and that the
submissions made by the 1st Respondent therefore goes to no issue. With respect
to issues No.2 and 4 of the 1st Respondent’s Brief, learned counsel for the Appellants
referred to A.G., Akwa Ibom State v. Essein (2004) All FWLR (Pt. 233) Pg. 1730
40 to contended that the 1st Respondent who has not filed a cross appeal is bound by
and limited to the grounds of appeal filed by the Appellants and cannot raise
issues outside the Appellants’ Grounds of Appeal; and if it does, the Court will
have to discountenance and strike out the issues. Counsel further submitted that
the 1st Respondent in the instant case cannot formulate its own issue and cannot
45 introduce Exhibit P39 which is not contained in the Grounds of Appeal filed by the

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Appellants.

Learned counsel further referred to Oniah v. Onyia (1989) 1 NWLR (Pt. 99) Pg. 514
Ratio 2 to further submit that the entire issue No.2 in the 1st Respondent’s Brief is
5 not an issue determined in the Judgment appealed against; and that it is not
encompassed by the Ground No.4 of the Notice of Appeal it is said to predicated
on. Counsel argued that issue No.4 is also not within the parameters and context
of Ground No. 7 of the Notice of Appeal. Learned counsel referred to Securities
And Exchange Commission v. Kasunmu (2003) 12 CMLR Pg. 133 & 153, Paras.
10 A - C to submit that it is difficult to separate Exhibit P39 introduced by the 1st
Respondent which is not contained in Ground No.7 of the Notice of Appeal from
Exhibit P66 which is contained in the said Ground No.7 of the Notice of Appeal
without doing harm. Counsel referred to the findings of the learned trial Judge at
pages 681 and 692 of the Records of Appeal and submitted that by its issue No.4,
15 the 1st Respondent who did not file a cross-appeal is urging this Court to vary the
Judgment of the trial Court to the effect that Exhibits P39 and P66 were rightly
admitted as evidence of transaction between the 2nd Appellant and 2nd Respondent.
Learned counsel referred to Attah v. State (1993) 7 NWLR (Pt. 5) Pg. 257 at 279
to submit that the 1st Respondent who did not file a cross appeal cannot seek to
20 vary the Judgment of the trial Court; Counsel urged this Court to allow this appeal.

RESOLUTION

ISSUE ONE
25
I read the Judgment of the lower Court which is the subject of this appeal as
contained at pages 764 - 684 of the Records of Appeal. The first issue nominated
for discourse by the Appellants is “Whether there was privity of contract between
the 1st Respondent and the 2nd Respondent such that the 2nd Respondent had the
30 locus standi to clothe the trial Court with the jurisdiction to hear and/or determine
2nd Respondent’s Counter-claim against the 1st Respondent.” The fulcrum of the
Appellants’ contention under this issue is that the 2nd Respondent had no locus
standi to seek for any relief against the 1st Respondent when there is no privity of
contract between them and in the face of the fact that the 1st Respondent never
35 undertook to pass good title to the 2nd Respondent; and since the 2nd Respondent
was neither a party to Exhibit P2. In its issue No: 1 which is “Whether the trial
Court directed itself to the materials placed before it and properly evaluated the
evidence adduced by the parties in reaching its decision. The 1st Respondent
argued that the learned trial Judge reviewed all the evidence and pleadings adduced
40 by the parities before it; and thereafter formulated 7 (seven) issues for determination
of all the issues between the parties; that having reviewed the pleadings and
analyzed the evidence adduced by the parties, and having considered the
addresses of counsel, the trial Court reached its decision covering the real
questions in controversy and all issues raised; that there is nothing on record
45 showing a modicum of perversion or denial of fair hearing in the judgment; and that

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the duty of the Court as an umpire is to do substantial justice to the parties in the
matter before it.

In its Judgment from pages 674 - 681 of the Records of Appeal, the learned trial
5 Judge, in my view comprehensively summarized the case presented before the
lower Court; at pages 675 - 677 of the Records of Appeal, the learned trial Judge
found that:

“The Claimants averred, and Mr. Harrison testified, that upon the
10 agreement to release all of the thirteen plots within the Airport Road
Property, the 2nd Claimant had gone ahead the month after that, and
in December 1987, to agree with a certain person, Sir Tony Anegbode
to the sale to him of Plots 1 to 3 thereof at a price of N117,000.00k
(Sir Anegbode, who was joined as the 3rd Defendant herein, died in
15 the course of the proceedings, and was substituted with his wife,
Lady Mary Anegbode). The Claimants testified that it was the
understanding between the 2nd Claimant and Sir Anegbode that the
sale of Plots 1 to 3 was contingent upon the release by the Bank of
the affected plots to the 2nd Claimant”. They testified further that the
20 sale agreement was forced on them by Sir Anegbode, who had initially
demanded one plot and then two more, as reward for the “service”
rendered by him to the 2nd Claimant in using his connections with
the military to free the Airport Road property from its intended
compulsory acquisition by the Lagos State Government. The
25 Claimants went on to say that as Plots 1 to 3 were never released
from the mortgage after all, the intended and purported sale of them
to Sir Anegbode could no longer go ahead and ownership of the
affected plots remained vested in the 1st Defendant as the mortgagee
thereof ...
30
The Claimants now claim from the 1st Defendant special damages for
the latter’s alleged frustration of the sale of Plots 1 to 3 on the said
two occasions, They also seek court declarations that those plot’s,
together with Plots 7 to 10, remain encumbered by the 1st Defendant
35 as security for the loan it granted the 1 st Claimant, and other
declarations rendering invalid any purported sale of Plots 1 to 3 to
the 3rd Defendant...”

At pages 679 - 680 of the Records of Appeal, the learned trial Judge further found
40 as follows:

“The case of the 3rd Defendant, as presented in her Defence and

Counter-Claim of the 9th of February, 1999 was that her late husband,
Sir Anegbode, had bought Plots 1 to 3 from the 2nd Claimant, after
45 which both parties executed a Deed of Assignment on the 16 th of

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December, 1987. She identified two documents executed by the 2nd

Claimant and her husband both of which had already been adduced
in evidence through Mr. Harrison. They were an agreement to sell
Plots 1 to 3 to “Mr. Tony Anegbode”, and a Deed of Assignment to
5 him of those same pieces of property. They are Exhibits P39 and P66
respectively. She stated that at that point in time when the transaction
took place, the 2nd Claimant was no longer indebted to the 1 st
Defendant and that Plots 1 to 3 which her husband purchased had
been released to the 2nd Claimant, thus giving room to the latter to
10 sell them. It is also her case (as averred and in her testimony], that at
that time of execution of Exhibit P66, the Deed of Assignment, Mr.
Harrison had told Sir Anegbode that the plots had, indeed, been
released, and had promised to hand over a copy of the Deed of release
once he received if from the 1st Defendant ...”
15
From the foregoing therefore, the Appellants’ contention that the 2nd Respondent
who was the 3rd Defendant against whom the Appellants themselves made claims
has no locus standi is not only baseless, unfounded and illogical, but also an
attempt at pulling trigger of technicalities at the decision of the trial Court. It is trite
20 that where a Plaintiff makes a Claim against a Defendant, the Defendant in addition
to filing a Defence to the Plaintiff’s claim can also file a Counter-Claim against the
Plaintiff. The 2nd Appellant’s locus standi to file a Counter-Claim is predicated on
the fact that the Appellants as Claimants made claims against the 2nd Respondent.
In Beloxxi & Company Limited & Anor v. South Trust Banks & Ors (2012) LPELR-
25 8021 (CA) Pg. 18-19, Paras. A - F, this Court explained the general nature of
Counter-Claim in the following words:

“A counterclaim is a claim by a defendant against a plaintiff made

after the plaintiff has filed and served the defendant with the statement
30 of claim which is typically concerning and resolved within the same
action. The defendant reverses the law suit on the plaintiff claiming
damages in the same action...

From the legal stand point, it is clear that whatever happens to the
35 claim of the plaintiff does not affect the counterclaim. The counter
claim is an entirely different suit altogether and is not dependent on
the plaintiffs claim or the main claim...”

See also Obianwu & Ors v. Obianwu & Ors (2017) LPELR-42676 (CA) Pg. 65-66,
40 paras. A - C where this Court held that: “What then is a counter-claim and it’s a
purpose? A “counter-claim” is defined in Osborn’s Concise Law Dictionary, 9th
edition, page 109 “a response by the defendant to a claim who alleges in his
defence a claim, relief or remedy against the Claimant, instead of bringing a
separate action. A counter-claim may also be made against any other person who
45 is liable to him together with the Claimant in respect of the counter-claim or the

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original subject matter of the action ...”

In the circumstance, where the Appellants as Claimants in their 3rd Further Amended
Statement of Claim contained at pages 382 - 398 of the Records of Appeal made
5 claims and sought reliefs against the 2nd Respondent in respect of Plots 1 - 3
which is the subject of Exhibits P39 and P66; and the 2 nd Respondent (3rd
Respondents) in response counter-claimed against the Appellants in respect of
the same Plots 1 - 3 relying on the same Exhibits P39 and P66; the Appellants
cannot raise the issue of the 2nd Respondent lacking locus standi. Locus Standi
10 simply connotes the legal capacity of a party to institute an action. A party who is
in imminent danger of any conduct of the adverse party has the locus standi to
commence an action, see: Pam & Anor v. Mohammed & Anor (2008) 16 NWLR
(Pt. 1112) 1 SC; I am of the view that the 2nd Respondent as 3rd Defendant against
whom reliefs were sought had the locus standi to institute a Counter-claim against
15 the Appellants (Claimants) and the lower Court was perfectly in order to have
entertained and considered the said Counter-claim. Issue No. 1 is therefore resolved
against the Appellants, and in favour of the Respondent.

ISSUE TWO
20
The second issue nominated for determination by the Appellants is “Whether it
was proper for the Court below to ignore, circumvent/sidetrack the relevant issues
raised by the Appellants and raise issues suo motu and determine the case
before it without hearing the Appellants on those issues” The Appellants made no
25 specific submissions on this issue, there is therefore nothing to consider on the
said issue. However, I need to state just in brief that the law is trite that the trial
Court is not bound to adopt the issues nominated for determination by the Claimants
verbatim in the determination of the matter presented before it, the Court is endowed
with the discretion to reformulate the issues presented by the parties before it,
30 provided in so doing, it captures all the issues raised by all the parties. The trial
Court may elect to use or adopt the issues formulated by either of the parties, or
reformulate the issues; however, such issues framed, reframed or formulated by
the trial Judge must be such that will adequately encapsulate all the issues raised
by the litigating parties and aid the Court in the just and fair determination of the
35 matter before it. In Okere v. State (2016) LPELR-26057 (SC) Pg. 30-31, Paras. E
- The Supreme Court of Nigeria per PETER-ODILI, JSC held as follows:

“Again, to be highlighted is the fact that a respondent has the right

to formulate issues and the Court is at liberty to choose either those
40 identified by the appellant or those framed by the respondent: or
re­organized by the Court to simplify its journey in the consideration
of the appeal.”

See also Ekweghiariri v. Unachukwu & Ors (2013) LPELR- 22074 (CA) Pg. 20-21,
45 Paras. F - A; Alliance International Ltd v. Kolo International Enterprises Ltd (2010)

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LPELR-3749 (CA) Pg. 14-15, Paras, F - D where this Court held that: “It is settled
position of the law; that a Court has the power to adopt, modify or reframe
the issues formulated for determination by the parties. The guiding principle
is that issues formulated must lead to a proper determination of the dispute
5 or grievance between the parties ... In the course of reframing issues, a trial
court should be careful not to make out a case for a party, different from the
party’s case ...”

The 1st Respondent submitted that, the learned trial Judge reviewed all the evidence
10 and pleadings adduced by the parities before it; and painstakingly reviewed the
pleadings and analyzed the evidence adduced by the parties, and having considered
the addresses of counsel and the issues nominated by the contending parties.
The trial Court reached its decision focusing on the real questions in controversy
between the contending parties; and that there is nothing on record evidencing
15 perversion of justice or denial of fair hearing in the judgment. Since the Appellants
made no submissions on this issue, it is taken that the issue is abandoned by the
Appellants and there is no necessity discussing the issue any further.

ISSUE THREE
20
The third issue formulated for discourse by the Appellant is: “Whether the judgment
of the trial Court was not perverse considering the pleadings, Exhibits P2, P7, P8,
P9 and P28 which were unchallenged, uncontroverted, unrebutted and not disproved
which the learned trial Judge ignored whilst picking and choosing from Exhibit
25 P10.” The contention of the Appellants is that there were other documentary
evidence admitted in evidence with respect to Plots 1- 3 or Exhibit P1 which
includes Exhibits P2, P4, P7 - P9 and P28 which were also ignored by the learned
trial Judge; that the case of the 1st and 2nd Respondents was based on this Exhibit
P10 which the trial Court construed as a document of title; that the provisions
30 Clauses 2 and 3 of Exhibit P2 overrides Exhibit P10 which is a mere letter of offer
which was not accepted as offered; and that Exhibit P59 shows that there was no
agreement on the figures contained in Exhibit P10 as a matter of fact therefore
there was no agreement on the acquisition price which was unilaterally fixed by
the 1st Defendant who assumed and exercised the power of acquisition which it did
35 not possess as an unpaid Mortgagee who is a party to a Deed of Legal Mortgage.

The Appellants further referred to Exhibits P40 - P43, P65, P8, P9 and P28 to
submit that the learned trial Judge in the instant case failed to consider all the
documentary evidence pleaded, tendered and admitted in evidence on which the
40 Appellants placed heavy reliance; that the learned trial Judge erred in ignoring
Exhibits P2, P4, P7 - P9 and P28 which were unchallenged and uncontroverted;
that by picking and choosing in the interpretation of Exhibit P10, the learned trial
Judge did grave injustice to the 2nd, Appellant whose testimony at page 486 of the
Records of Appeal was unchallenged; that if the trial Judge had not shut his eyes
45 to the pleadings and Exhibits tendered by the Appellants his findings would have

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been different and it would have reflected the correct inference to be drawn from
the pleadings and Exhibits. The Appellants urged this Court to critically evaluate
Exhibits P1, P2, P7 – P10, P28, P37, P38 and P40 - P43 and draw the necessary
inference therefrom.
5
It is pertinent at this point to state the settled position of the law that the admission
and evaluation of evidence, the duty to discredit or disbelief same and/or to attribute
probative value to the evidence so admitted are within the discretion of the Trial
Court or the Tribunal (as the case may be); and an Appellate Court will ordinarily
10 not interfere with that discretion unless it is established that the trial Court erred
or committed a blunder in its evaluation of the evidence presented before it. See
Edolor v. Osayande (1992) NWLR (Pt. 249) 524; (1992) LPELR-5053 (SC), Pg.
43-44, Paras. G - A; Okunzua v. Amosu (1992) NWLR (Pt. 245) 416; (1992)
LPELR-2531 (SC), Pg. 20, Paras. D - E; Tukur v. UBA & Ors (2012) LPELR-9337
15 (SC), g. 45, Paras. B - E where ARIWOOLA, JSC held that: “Generally, and it is
settled law that the evaluation of evidence adduced and ascription of probative
value or weight to such evidence is the primary duty of the trial judge who
saw and heard the witnesses...” See also UBA Plc v. J. I. Efemini & Sons
(2018) LPELR-44150 (CA), Pg. 19-20, Paras C - C. The Supreme Court in Mamuda
20 v. State (2019) LPELR-46343 (SC), Pg. 15-16, Paras. F - S, per MUHAMMAD,
JSC held that: “…The task of evaluating evidence and ascribing probative
value to it is the primary duty of the trial Court. The lower Court and indeed
this Court, unlike the trial Court, are handicapped when evaluation of
evidence, as in this case, is made an issue...”
25
For the purpose of clarity and avoidance of doubt on why the trial Court is allowed
such discretion with respect to the evaluation of evidence and ascription of probative
value to such evidence so tendered; the reason is simply that the trial Judge is the
only one who had the rare privilege of seeing and hearing the parties before him;
30 an opportunity which an Appellate Court does not enjoy; as such an Appellate
Court cannot interfere with that discretion of the trial Judge except in special or
exceptional circumstances. In Anyah v. African Newspaper of Nig. Ltd (1992)
NWLR (Pt. 247) Pg. 319; (1992) LPELR-511 (SC) Pg. 20-21, Paras. G - A, the
Supreme Court held that: “It is not in all cases that an appeal court will interfere
35 with the exercise of discretion by a trial Judge, simply because it: did not
favour one of the parties litigating before him. The Court will not interfere
with the exercise of discretion in the absence of proof that it was wrongly
exercised. You cannot lay down hard and fast rules as to the exercise of
judicial discretion by a court, for the moment you do that, the discretion is
40 fettered”

Also applicable to this point is the Supreme Court decision in Olatunbosun v.

Texaco Nig. Plc (2012) LPELR-7805 (SC) Pg. 18, Paras. C - D where the Supreme
Court held that: “…an appellate court like ours will not interfere with the
45 exercise of discretion of the court below merely because this court would

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have acted differently…. this court will only interfere where the discretion
exercised is manifestly wrong, arbitrary, reckless and injudicious.” As rightly
held by my Lord, MUHAMMED, JSC in Faleye & Ors v. Dada & Ors (2016) LPELR-
40297 (SC) Pg. 33-34, Paras. E - C: “… This Court has stated it times without
5 number that it is none of its functions or indeed that of an appellate Court to
substitute its own views of the evidence for those of the trial Court that is
better placed to deal with those matters. The appellate High Court could
only have interfered with findings of facts of the trial Customary Court when
the findings are perverse and/or consequent upon improper exercise of
10 judicial discretion further resulting in miscarriage of justice...”

However, there are exceptions to the settled issue on non­ interference by an

Appellate Court with respect to evaluation of evidence which includes circumstances
where the evidence in question is documentary evidence; in such circumstances,
15 an appellate Court is at liberty to embark on evaluation of evidence where the
evaluation so done by the trial Court is shown to be perverse. This Court, in Davies
v. NDIC & Ors (2014) LPELR-23763 (CA) Pg. 33, Paras. G - G held that: “...However,
where the bone of contention as to evaluation of evidence has to do with evaluation
of documentary evidence, this court is in a vantage position as the trial court to
20 examine and evaluate documentary evidence...” See also the decision of the
Supreme Court in CPC v. Ombugadu & Anor (2013) LPELR-21007 (SC) Pg. 63-
64, Paras. G - B where NGWUTA, JSC held that: “An appellate Court enjoys
the same position of the trial Court in evaluation of documentary evidence
as in this case where the controversy is limited to the interpretation of
25 documents. Where the findings of the trial Judge on documentary evidence
is perverse an appellate Court will employ its appellate power to correct the
perversity...” (Underlined by me)

Since the case of the Appellants is that the trial Court wrongly evaluated Exhibit
30 P10 and failed to consider several other documents which the Appellants relied
upon which includes Exhibits P1, P2, P4, P7 – P10, P28, P37 - P38, P40 - P43,
P59 and P65; it is therefore apparent that the Appellants are inviting this Court to
embark on a re-evaluation of the evidence presented for evaluation before the
lower Court. The question that must then be asked is whether the Appellants have
35 shown the perversity in the decision of the trial Court which will be the ground
upon which this Court can embark on the evaluation of evidence. It becomes
necessary to consider the Judgment of the lower Court to ascertain if, the trial
Court erred in its evaluation of the evidence so presented before it. I have earlier
expressed my opinion on the learned trial Judge’s diligence in summarizing the
40 case presented and the claims made by the respective parties before the lower
Court at pages 674 - 681 of the Records of Appeal, which I described as
comprehensive; and I must say that the Appellants have not contended that the
lower Court misapprehended the facts presented before it. I already referred to
and reproduced part of the findings of the learned trial Judge particularly with
45 respect to the Appellants case/claims at pages 675- 677 of the Records of Appeal;

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and with respect to the case/counter­ claim of the 2nd Respondent at page 679 -
680 of the Records of Appeal. The 1st Respondent’s case as summarized by the
learned trial Judge at pages 677 - 678 of the Records of Appeal is that:

5 “By the case made out on their part, the 1st and 2nd Defendants state that all
thirteen plots of the Airport Road property were released to the 2nd Claimant
as evidenced by the 1st Defendant’s letter of November 1987, Exhibit P10.
They agree that sometime after that, it was agreed with the 2nd Claimant
that all those plots would be re-encumbered to secure the fresh loan of
10 N600,000.00k granted the 1st Claimant. However, their case (as revealed
by their amended Statement of Defence and Counter Claim of the 23rd of
March 2005, and in the testimony of their witness, an employee of the Bank
whose name is Mr. Paul Ojemeh), is that the 2nd Claimant went behind the
back of the 1st Defendant to sell Plots 1 to 3 to Sir Anegbode at a point in
15 time before this new mortgage arrangement involving the 1st Claimant had
been made, so that the affected plots (1 to 3) did not, in reality, serve as
security for the loan granted the 1st Claimant after all.

The 1st and 2nd Defendants deny the assertion that the Bank had deliberately
20 frustrated the two attempts to sell Plots 1 to 3. They stated that it was,
indeed, at that point in time - late 1995 to early 1996 - that they came to
know that Plots 1 to 3 had already been sold to Sir Anegbode as far back
as 1987. They averred inter alia as follows:

25 22. ….... the 1st and 2nd Defendants aver that the Claimants have
by their conduct aforementioned made plots 1, 2 & 3 impossible
to resell, having earlier sold [the] same to the 3rd Defendant and
concealing the fact from the 1st Defendant.

30 Indeed, Mr. Ojemeh led evidence in proof of these averments.

He testified that because of this dispute between the Claimant
and Sir Anegbode, the Bank was unable to give its consent to
the 2nd Claimant’s proposed sale of the affected plots.

35 The witness also stated as follows after looking at Exhibits P3

and P4, the exchange of correspondence, in April 1988, between
the 2nd Claimant and the 1st Defendant regarding the security to
be created in respect of the 1st Claimant’s fresh loan:

40 We specifically mentioned plots 7 to 10. We did not execute any

further charge in respect of the credit facility granted the 1 st
Claimant because it was agreed initially that the plots of land
would be re-encumbered in respect of the new facility. We gave
the 2nd Claimant an open mandate to sell plots 7 to 10. The
45 Claimants have not sold the properties - they are still charged to

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the 1st Defendant.

I have read through the records of the trial Court particularly from pages 437 - 445;
460 - 513 and 520 -523; as well as pages 643 - 660. The learned trial Judge
5 referred to the Cross-examination of the Appellants’ Witness and in fact found at
pages 678 - 679 of the Records of Appeal as follows:

“Under cross-examination by Counsel for the 3 rd Defendant, the

following ensued:
10
Question: Plots 1 to 10 had been released as at the 16th of November
1987 when the 2nd Claimant sold Plots 1 to 3 to the 3rd
Defendant; there was no mortgage over Plots 1 to 3?

15 Answer: That’s correct – it was not encumbered then, though no

formal deed of release had been prepared.

Question: Look at Exhibit P4. It is what was intended when the

overdraft of the 1st Claimant was approved?
20
Answer: Yes - subject to the stated conditions.

Question: By clause 2, it says “discharge of existing legal charge”

25 Answer: Yes

Question: It means in essence that by the approval, whatever charge

that previously existed over the property no longer existed.

30 Answer: Yes.

Question: You agree that by Exhibit P4, a new mortgage is supposed

to come into existence between the two Claimants and
the 1st Defendant. The grant of the overdraft was contingent
35 on the creation of a new mortgage.

Answer: A new tri-partite deed of mortgage was to be created.

Question: Equally, By Exhibit P4, [the] only plots [that were the]
40 subject of the charge on this new facility [were] - Plots 7 to
10.

Answer: That correct.”

45 From the assertions, claims and counter claims made by the parties before the

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lower Court; I am in total agreement with the findings of the learned trial Judge
with respect to the issues for consideration: at pages 681 - 682 of the Records of
Appeal, the learned trial Judge held as follows and I quote:

5 “I have carefully read through all of the pleadings before me. I have
given due consideration to the evidence led in proof of the facts
averred by the parties, and which evidence, of course, includes the
documents that were admitted by the court. Again, I have taken into
consideration the submissions of learned Counsel as made by them
10 in their respective final addresses.

I think that the issues for consideration by this court are well defined,
never mind the expansive nature of some of the pleadings and number
of documents adduced in evidence. Those issues are these:
15
i. Whether Plots 1 to 3 were, in November 1987, released from
the charge secured by the 1st Defendant in 1978;

ii. If so, whether those particular plots were ever re­ encumbered
20 in April 1988 to secure the loan granted the 1st Claimant;

iii. Whether there was a legally binding sale of Plots 1 to 3 by

the 2 nd Claimant to Sir (or “Mr.”) Tony Anegbode in
December, 1987;
25
iv. ….

v. ….

30 vi. ….

vii. ….

The foregoing coupled with the introductory paragraph of the Judgment at pages
35 674 – 675 of the Records of Appeal in my opinion clearly define the real issues in
controversy between the contending parties, and as rightly found by the trial Court
at page 682 - 684 of the records, the learned trial Judge held as follows:

“I have not included the matter of the remaining Plots 7 to 10 in this

40 formulation of the issues in dispute as I find, from the pleadings, that
the parties - specifically the Claimants and the 1st and 2nd Defendants
- did not join issues regarding the 1st Defendant’s propriety interest
in them. It is clear that there is no controversy on the matter of them
remaining mortgaged to the 1st Defendant up till this day. Indeed,
45 the, Claimants themselves seek declaratory relief to that effect. In the

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event, I reach the Summary conclusion that the 1st Defendant’s

counter-claim in respect of the said Plots 7 to 10 will succeed.

Going back to the disputed and highly contentious case concerning

5 Plots 1 to 3, the issue arises as to whether they were released from
the mortgage agreement made on the 9 th of January 1978 and
registered as No. 93 at Page 93 in Volume 1671 of the Register of
Deeds, which document was admitted as Exhibit P2. Whilst the
Claimants insist that they were not, because no Deed of Release was
10 executed in respect of them at the material point in time, the
Defendants, particularly the 3rd Defendant, say that they were. The
“material point in time” that I speak of is, of course, the period
between are 12th of November 1987 when Exhibit P10 was written,
and April 1988 when the 1st Claimant’s loan/mortgage agreement
15 was made. By Exhibit P10, quoted above, the 2nd Claimant had been
informed of the 1st Defendant’s decision to release the entire parcel
of land at Airport Road “on compassionate ground[s]”.

I have no doubt in my mind, that from the bundle of documents

20 before me, that the 2nd Claimant and the 1st Defendant had agreed, as
at November 1987, that those plots, together with the others on Airport
Road, would be released to the 2nd Claimant. Exhibit P10 is proof of
this. Also showing this to be so are Exhibits P39 and P66, the
Agreement of Sale and the Deed of Assignment between the 2 nd
25 Claimant and the Sir Anegbode. By Recital No.3 of Exhibit P39, it is
stated thus:

The Vendor [that is, the 2nd Claimant] has obtained from the New
Nigerian Bank Limited the Release of the aforesaid charged property
30 and agreed for the sale of Plots 1, 2 and 3 forming [a] portion of the
said property ... to the purchaser in fee simple absolute and free
from any encumbrance.

And by Recital No. 3 of Exhibit P66, the Deed of Assignment, it is

35 recited thus:

The Assignor [the 2nd Claimant] has obtained the New Nigerian Bank
Limited a release of the charged property [the] subject matter of this
Assignment. (The emphasis, in both instances, mine)
40
Both documents, as I stated earlier, were mode on the 16 th of
December, 1987. I accept this to be true not only because those dates
were stated on them, and not just because DW2 and DW3 gave clear
evidence that they knew, personally, that they were executed on that
45 very day. I also accept it as true because the 2nd Claimant has not

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come back with evidence contradicting this fact beyond its mere
say-so. By reason of operation of section 137(2) of the Evidence Act,
the burden of proof had shifted onto it to show that the documents
were not executed on that day. However, it failed to discharge that
5 burden as the mere statement of its witness denying ever having
executed the two agreements on the date shown on them, cannot be
accepted, without more, as concrete proof to the contrary bearing in
mind the first-hand evidence on the other side... I am therefore
convinced that those documents were made and executed on the
10 date shown on them – the 16th of December, 1987.

It is again the position of the law that documentary evidence is like a

hangar by which the court is enabled to assess the value and probative
worth of oral testimony… According to Claimants witness, Mr.
15 Harrison, the sale of Plots 1 to 3 to Sir Anegbode was made contingent
upon the release of those plots by the Bank. He also said that this
condition was made expressly clear, and was agreed to by the parties.
However, the two recitals I quoted above show contrary. They serve
to prove to me that there was no such conditional sale of the property,
20 as it was stated - expressly - to be a fact that the parcel of land in
question had, indeed, already been released to the vendor (the 2nd
Claimant) as at the point in time that the agreements were made. I
am fortified in this belief by the corroborating value of Exhibit P10 -
the letter which shows that the Bank had released the property to the
25 2nd Claimant a month before the latter agreed to sell the plots - and
did sell them - to sir Anegbode .....”

The learned trial Judge then went further at pages 655 - 690 of the records of
appeal to conclude as follows:
30
“What the Claimants are holding on to, in insisting that Plots 1 to 3
were never ever released; is the fact that - the undeniable fact - that
no Deed of Release was executed in respect of them. I find, however,
that a court of equity will step in at this stage to prevent such a fraud
35 on equity from being upheld by a court of law! “Equity” as we say,
“regards as done that which ought to have been done
……………………..”

It was the decision of the Bank to release the plots, and it went on
40 ahead, by Exhibit P10, to state that it was in the process of preparing
the necessary documentation to that effect. The statement to this
effect in Exhibit P10 was a statement of intent - not a suggestion, left
open to 2nd Claimant’ to ponder over and give a feedback upon.
Indeed, the word that has been used by the Claimants in the
45 subsequent mortgage arrangement concerning the 1st Claimant’s loan

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is the word “re-encumber”. In other words, they all understood that

the entire parcel of land had, at first, been released. The Claimants
in the circumstances, cannot, in good conscience, rely on the non-
execution of the intended Deed of Release (a mere formality), as proof
5 that Plots 1 to 3 were never released. A court of equity will not allow
them to take undue and unwholesome advantage of the delay by the
Bank in preparing the necessary documentation when the 2 nd
Claimant, acting on the basis of this very release as communicated
to it via Exhibit P10, had immediately (a month after) gone ahead to
10 sell the plots to a third party.....”

I have reproduced substantial part of the decision of the lower Court just to
demonstrate the absence of any perversity in the manner the learned trial Judge
evaluated the evidence placed before the lower Court; and that the exercise of the
15 learned trial Judge’s discretion to discredit or disbelief some of the evidence and
to attribute probative value/weight to some other did not result in a miscarriage of
justice. And having done so, it is my view that the issue of “Whether the judgment
of the trial Court was not perverse considering the pleadings, Exhibits P2,
P7, P8, P9 and P28 which were unchallenged, uncontroverted, unrebutted
20 and not disproved which the learned trial Judge ignored whilst picking and
choosing from Exhibit P10.” must be resolved against the Appellants. The
Appellants have failed to show evidence of remotest perversity as alleged, the
decision of the lower Court, part of which has been reproduced in this Judgment
clearly shows that there is no perversity in the Judgment of the lower Court and I
25 am in absolute agreement with the reasoning and conclusion of the learned trial
Judge with respect to Exhibit P10.

It will be needless to embark on any further re-evaluation of the evidence tendered

at the trial Court because, in my opinion, the learned trial Judge has done a
30 commendable and unimpeachable job of proper evaluation; and the Appellants
have not been able to fault the decision of the lower Court. The absence of a formal
Deed of Release can simply not be held unto by the Appellants as grounds for
contending that Exhibit P10 is not a conclusive release of Plots 1-3, (and the
other plots referred to in Exhibit P10) one incontestable fact is that, the Appellants
35 had shortly after that letter proceeded to sell plots 1 - 3 to the late Sir Anegbode
wherein the recital in both Exhibits P39 and P66 confirm and represented that the
Plots had been released.

Without more, the decision of the Supreme Court in Anyah v. African Newspaper
40 of Nig. Ltd (Supra) contains the most appropriate note on which to conclude this
issue: the Supreme Court aptly held that: “It is not in all cases that an Appeal
Court will interfere with the exercise of discretion by a trial Judge, simply
because it did not favour one of the parties litigating before him. The Court
will not interfere with the exercise of discretion in the absence of proof that
45 it was wrongly exercised. The fact that the decision of the learned trial Judge did

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not favour the Appellant is not enough ground to interfere or disturb the decision;
the Appellants must show that the decision appealed against is, as held by the
Supreme. Court in Olatubosun v. Texaco Nig. Plc (Supra); manifestly wrong,
arbitrary, reckless and injudicious or that the decision and findings of the learned
5 trial Judge are perverse and/or consequent upon improper exercise of judicial
discretion further resulting in miscarriage of justice as held in Faleye & Ors v.
Dada & Ors (Supra).

In conclusion therefore, issue No. 3 is hereby resolved against the Appellants and
10 in favour of the Respondents;

ISSUE FOUR

The fourth issue formulated by the Appellant is: “Whether the 2nd Appellant
15 paid up the outstanding debt in 1987”. The summary of the Appellants contention
is that the outstanding debt was never paid in 1987; that the Appellant’s raised
this as an issue before the lower Court at pages 563 - 564 of the Records of
Appeal but the lower Court failed to consider this issue; that CW1 in his testimony
denied the discharge of any debt by the Appellants as at 10th December, 1987 and
20 that the mortgage transaction is proof that the 2nd Appellant was indebted to the 1st
Respondent and that as at 16th December, 1987 the balance outstanding against
the 2nd Appellant was N5,837,031.83. The Appellants further argued that no evidence
was led by the 1st Respondent of any payment by the 1st Appellant; and that DW1
cannot be treated as a witness of truth and his testimony cannot be regarded as
25 credible.

In my opinion, this issue and the contention thereunder is a further attempt to fault
the Judgment of the lower Court by all means. It is rather preposterous that the
Appellants will be contending that the outstanding debt was never paid in 1987.
30 This issue in my opinion is unsustainable, because, the 1st respondent to whom
the debt is due, or supposed to have been due, have not made a claim or any
issue with respect to the previous loan. The loans, which are in contention, are
apparently the N500,000.00 and N100,000.00 facilities granted to the Appellants
after Exhibit P10 was made in 1987. The idea behind the Appellant’s contention
35 that the outstanding debt was never paid in 1987 is clearly to attempt to establish
that Exhibit P10 is not sustainable. However, Exhibit P10 and its evaluation by the
learned trial Judge have been adequately considered under Issue NO.3. By the
said Exhibit P10, the 1st Respondent stated that what was contained therein is
the “settlement package” in respect of the Appellant’s debt.
40
The Appellants acted on Exhibit P10 by proceeding to sell Plots 1 - 3 as shown
and established by Exhibits P39 and P66. The Appellants have earlier argued that
Exhibit P10 would be inconclusive without a formal Deed of Release; this argument
was clearly dealt with by the findings of the lower Court where the learned trial
45 Judge concluded at pages 655 - 656 that: “What the Claimants are holding on

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to, in insisting that Plots 1 to 3 were never ever released, is the fact that - the
undeniable fact – that no Deed of Release was executed in respect of them. I
find, however, that a court of equity will step in at this stage to prevent such
a fraud on equity from being upheld by a court of law! “Equity” as we say,
5 “regards as done that which ought to have been done” ... Equity also looks
at the intent rather the form, and will impute an intention to fulfill an
obligation. And “equity will not allow the law to be used as an engine to
defraud”. It will not allow a travesty of justice by means of the manipulation
of the cols letters of the law.....”
10
From the foregoing findings of the learned trial Judge, this issue needs not be over
flogged; the 1st Respondent has by its intent as exhibited by Exhibit P10 shown
that whatever was owned by the Appellants was deemed as settled and paid up;
the Appellants themselves acted on this and executed Exhibits P39 and P66. The
15 Appellants seem to expect that the trial Court should have shut its eyes to and
give no probative value to Exhibit P10 simply because no formal Deed of Release
was executed. As rightly held by the learned trial Judge, equity will not allow the
law to be used as an engine to defraud. As stated by this Court Per EKO, JCA (as
he then was; later JSC) in Uzoma v. Asodike (2009) LPELR-8421 (CA) Pg. 19,
20 Paras. A - B: “Equity, it is said follows the law. Accordingly, where rigid or strict
adherence to the letters of the statute will result in absurdity, unfairness or injustice
the courts in their interpretative and equitable jurisdiction will yield to overriding
interest of justice and allow substantial justice to prevail. One of the readily available
tools in this regard is the principle of equity that looks at and upholds the substance
25 and not the form.”

See also Ekaete v. Union Bank of Nigeria Plc (2014) LPELR- 23111 (CA) Pg. 66-
61, Paras. F - B: where this Court held that “No Court administering law and
equity will allow technical arguments to defeat the course of justice...” In
30 MBA v. MBA (2018) LPELR- 44295 (SC) at Pg. 31, Paras. A - C, my lord, AKA’AHS,
JSC aptly stated that: “Where facts and circumstances are presented to the
Court from which the Court exercises its discretion, it should be guided by
law, justice and common sense.” In the circumstance, the contention of the
Appellant that there was no proof or that it was not established that the outstanding
35 debt was ever paid in 1987 despite Exhibit P10 and the subsequent Exhibit P39
and P66 already considered in this Judgment is nothing but an invitation to this
Court to allow technicality defeat substantial justice. I must resist this unfair
invitation; it is hereby resisted. Consequently, issue No.4 is also resolved against
the Appellants.
40
ISSUE FIVE

The fifth issue distilled by the Appellants is: “Whether it was lawful for the
learned trial judge to give judgment against a provision of a statute relevant
45 to an issue before him and which statute was brought to his notice or

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attention.” The contention of the Appellants herein is that the date of accrual of
the interests and the date the right to recover the sum had become statute barred
by virtue of Section 30(1) of the Limitation Law of Lagos State, Cap 70, Laws of
Lagos State, 1973 (which is applicable to the instant transaction); that the actions
5 for the recovery of arrears of interest in respect of the N500,000.00 overdraft ought
to have been instituted between 21/10/88 and 20/10/94 while that of the
N100,000.00 overdraft ought to have been instituted between 22/9/88 and 21/9/94;
that the learned trial Judge was wrong in holding that interest on the total sum of
N600,000.00 overdrafts was not statute barred upon reliance on Exhibits P51 and
10 P26 written on the 26th of February, 1996 and 21st of June, 1996 respectively.

The Appellants further argued that a fresh cause of action cannot arise with each
demand simpliciter that is made without an acknowledgment as stipulated in
Sections 37 - 44 of the Limitation Law; that Section 45(1) specifically provided
15 that every acknowledgment shall be in writing and signed by the person making
the acknowledgment; that for a demand to revive the Limitation Period, such a
demand must be made within the period of limitation and not after; and that any
demand made after the expiration of the limitation period cannot revive the limitation;
that the period within which the interests on the N500,000.00 and N100.000.00
20 facilities could have been recovered had expired since 1994 and as such Exhibits
P51 and P26 written in 1996 were inapplicable; and that a demand must be express
and that there is nothing like implied demand or constructive notice as used by
the learned trial Judge.

25 The 1st Respondent’s issue No. 5 corresponds with the foregoing issue and
contentions of the Appellants. The issue as formulated by the 1st Respondent is:
“Whether the trial Court was right in rejecting the Appellants contention that the
loan granted by the 1st Respondent to the 1st Appellant and the interest thereon
were statute barred.” The 1st Respondent’s contention is that the transaction that
30 gave rise to the instant case came about pursuant to Exhibit P4 and P5 made on
21st and 22nd of April, 1988 respectively, wherein the 1st Respondent granted the 1st
Appellant a total loan of N600,000.00 which was secured by the equitable mortgage
of the 2nd Appellants property named as Plots 7 - 10 of the property at Opebi Link
Road; that the Appellant had consistently acknowledged their indebtedness to
35 the 1st Respondent and never denied the debt but only raised the issue of Statement
of Account and that the interest on the loan had become statute barred in 1994.

The 1st Respondent further argued that the learned trial Judge rightly rejected the
Appellants’ claim and noted that the 1st Respondent had consistently demanded
40 for the payment of the loan and interest and that a fresh cause of action arises
with each demand that is made; that before the 1st Respondent filed its Counter-
Claim in October, 2000, it had maintained consistent demand on the Appellants to
settle the debt; and that the Appellants had consistently admitted and
acknowledged the transaction and their indebtedness to the 1st Respondent, directly
45 or impliedly. 1st Respondent referred to Section 38(1) & (2) of the Limitation Law of

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Lagos State, Cap L68 to submit that right of action accrues afresh upon
acknowledgement; that the Appellants who had consistently admitted their
indebtedness to the 1st Respondent directly and impliedly even by their Writ of
Summons, Pleadings and Evidence led at the trial ironically turned around to
5 contend that the debt was time barred which amounts to blowing hot and cold at
the same time.

The findings of the learned trial Judge on this issue is at pages 691 - 692 of the
Records of Appeal. I have carefully considered the arguments of the Appellants
10 and the 1st Respondent as well as the conclusion reached by the learned trial
Judge on this issue. There appears to be no dispute as to the contention by the
Appellant that the date the actions for the recovery of arrears of interest in respect
of the N500,000.00 overdraft ought to have been instituted between 21/10/88 and
20/10/94 while that of the N100.000.00 overdraft ought to have been instituted
15 between 22/9/88 and 21/9/94; while the contention of the 1st Respondent was that
demand for the debt was made; the trial Court relied on Exhibits P51 and P26
both written in 1996 as evidence of demand and that as such the action which was
filed in the year 2000 was not statute barred. The issue of the Limitation Law with
respect to debts was succinctly considered by this Court in Wema Bank v. Owosho
20 (2018) LPELR-43857(CA). I shall rely on same as; it applies to this instant case;
at Pg. 12-14, Paras. D - A, in that decision my Lord, GARBA, JCA held that:

“However, as a condition precedent for the exercise of the right of

action in respect of that cause of action to recover the alleged debt
25 from the Respondent, the law requires and imposes a legal duty on
the Appellant to make a formal demand for the payment of the debt
by the Respondent which was to activate the right of enforcement of
the cause of action, through the judicial processes of a Court of law…
the activation of the right for it to accrue to the Appellant to enforce
30 the cause of an action depended on a letter of demand for the payment
of the debt from the Appellant and refusal or failure by the Respondent
to pay. The letter of demand was to have been written by the Appellant
before the legal action by way of the counter claim was filed and
within the time prescribed by the limitation law of Lagos State. This
35 is because the accrual of the right to enforce the cause of action by
use of judicial process of a Court of law was/is not in perpetuity to be
exercised at the whims or pleasure of the Appellant. Although the
cause of action arose in 1999, the accrual of the right to enforce it by
way of judicial process of a Court of law was to have arisen or been
40 activated when and by the letter of demand for the payment of the
debt from the Appellant....”

It was further held by my lord, GARBA, JCA at Pg. 17-12, Paras. E - A that:

45 “…it is the letter of demand from a Bank to its customer for the

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payment of a debt owed in his account that gives rise to the accrual
of the right of action for the purpose the recovery of the debt by
means of the judicial process of a Court of law. As stated in the
authorities, until such a letter of demand was issued, no right of
5 action would arise and accrue to the bank to enable it commence a
legal action in a Court of law for the recovery of the debt in question.
As a result, since the Appellant did not write and issue a letter of
demand to the Respondent for the recovery of the debt allegedly
owed by her as per Exhibit ‘D8’, which debt was also claimed in the
10 counter-claim, the right of action in respect of the said debt did not
accrue at the time the Appellant filed the counter­claim for the debt.
It may be recalled that the law is that for the purpose of the application
of a limitation law, time would start to run from the date/time a cause
and right of action arises and accrues to a party…”
15
In the instant case, there were two letters of demand, as found by the learned trial
Judge at page 691 of the Records of Appeal - Exhibits P51 and P26 were made on
the 26th of February and 21st of June, 1996 respectively and that since the counter-
claim by the Respondents was filed in October, 2000, it was not affected by the
20 limitation law. However, while the calculation between the date of the letters of
demand - Exhibit P51 and P26 and the time the counter-claim is correct; the real
dispute by the Appellant herein is whether Exhibits P51 and P26 both made in
1996 were made within the time permissible by law; in other words, since the
transaction that gave rise to the instant case came about pursuant to Exhibits P4
25 and P5 made on 21st and 22nd of April, 1988 respectively; the right of action in
respect of the N500,000.00 overdraft accrued since 21/10/88 and by the Limitation
Law, would elapse on 20/10/94; while the right of action in respect of the
N100,000.00 accrued since 22/9/88 and by the Limitation Law, would elapse on
21/9/94. Considering this issue, the decision in Wema Bank v. Owosho (Supra)
30 still applies. In that case it was held -further that the Respondent - Bank, who
counter-claimed as in the instant case had a duty to make the demand within the
time prescribed by the limitation law. This Court held that the Respondent:

“… had the duty to have formally demanded for the payment of the
35 disputed debt from the Respondent within the time prescribed by
the limitation law if it indeed to use the judicial processes of a Court
to recover the debt. The duty of the Appellate to comply with the
provisions of the limitation law in making the demand for the payment
of the debt allegedly owed by the Respondent was not left at its whims
40 and pleasure since it is a judicial condition precedent for the exercise
of the right to claim the payment by use of the judicial process of a
Court of law.

... a formal demand for the payment of the debt from the Appellant
45 to the Respondent had to be made within the period of time stipulated

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by the limitation law of Lagos State for actions to recover such debts
between the Appellant and its customer; the Respondent. Limitation
Statutes or Laws being substantive and not merely procedural and
technical have to be complied with in the action by the Appellant to
5 recover the alleged debt from the Respondent…”

Also, I consider apt by the words of my lord and learned brother, GEORGEWILL,
JCA in Wema Bank v. Owosho (Supra) at Pg. 25-28, Paras. C - B where my lord
held as follows:
10
“Now, the law on limitation of action is simply a rule of law, codified
in most jurisdictions into statutes of limitation, which prohibits the
commencement of stale claims. In its operation, it extinguishes the
right to action but not the cause of action itself, which is rendered
15 bare and unenforceable in a Court of law. The rationale for limitation
of time for the commencement of action would seem to be that due
to the length of time that must have elapsed, a Defendant, on being
confronted with a stale claim, may have lost or due to unavailability
of materials evidence or death or unavailability of vital key witnesses,
20 due to no fault of his, necessary for his defense which would have
otherwise been available if the claims were commenced timely within
the period as allowed under the relevant applicable limitation law.
… However, in law it has been well settled that the statute of limitation
is an equitable relief and thus must he pleaded before a Defendant
25 can rely on it… However, the issue of limitation of action has evolved
over the years to a jurisdictional issue and thus even where it was
not duly pleaded by a party so contending or even suo motu by the
Court ...”

30 From the foregoing findings of this Court in Wema Bank v. Owosho (Supra) Exhibits
P51 and P26 written in 1996 came after the limitation period had elapsed from the
time the debt had accrued. I therefore agree with the submissions of learned
Counsel for the Appellants. I am of the opinion that the conclusion reached by the
learned trial Judge on this issue was wrong; I accept the contentions of the
35 Appellants on this issue and consequently, issue No. 5 is resolved in favor of the
Appellants and against the 1st Respondent.

ISSUE SIX

40 This is the last issue formulated by the Appellants “Whether the learned trial
Judge was right in admitting Exhibit P66 on unregistered registrable
instrument as establishing ownership of Plots 1 - 3 by the 2nd Respondent”
The argument here is that in an action for declaration of title to land, where the
Plaintiff fails to discharge the burden of proving his root of title to land, he is not
45 entitled to the declaration sought; and he cannot also fall back on long possession

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and acts of ownership; that while the legal adviser to the 2nd Respondent obtained
certified true copies of Exhibits P64, P40, and P65 from the Lands Registry, he
failed to formally write the legal department of the 1st Respondent to ask for an
undertaking that the 1st Respondent as the Mortgagee would pass good title to the
5 2nd Respondent; that by granting the reliefs claimed by the 2nd Respondent, the
learned trial Judge had thereby ordered specific performance against the 1st and
2nd Defendants (now 1st Respondent) who were not privy to the agreement and
also against the 2nd Appellant from whom the legal estate in the land has passed.

10 The Appellants further submitted that the order for specific performance and the
declaration of title in favour of the 2nd Respondent were grounded on Exhibit P66
which is an unregistered registrable instrument; that no instrument shall be pleaded
or given in evidence in any Court as affecting any land unless the same shall have
been registered; that the trial Court simply shut its eyes to the issues and authorities
15 placed before it; that having found that no Deed of Release was executed in respect
of Plots 1 - 3, the trial Court was wrong to have relied on the recitals as well as
tenor of Exhibit P66 to raise the issue of estoppel, equity and unconscionable
behavior against the Appellants.

20 This issue is not unconnected with issue NO.3 herein above which I have considered
and determined against the Appellant; the only point worthy of consideration now
is whether Exhibits P39 and P66 are admissible being registrable instruments
that were not registered. I agree that Exhibits P39 and P66 are registrable
instruments which must be registered to be admissible as proof of title/ownership
25 of land; this settled position of the law was affirmed by this Court in Umar v. Bailey
& Ors (2018) LPELR-44285 (CA) Pg. 37 - 45, Paras. E - B while considering the
legal effect of such an unregistered registrable instrument wherein it was held
that:
“The legal effect is that where an instrument is required to be
30 registered but is not registered, it cannot he pleaded and is therefore
inadmissible in evidence. In other words any registrable instrument
which is not registered cannot be pleaded nor tendered in evidence.
Where it has been pleaded and tendered, it will be inadmissible in
any event. Such an unregistered instrument may however be pleaded
35 and admitted to prove payment of purchase price, or as evidence of
the transaction between the parties, if properly proved and admitted
is proof of equitable interest which if coupled with possession is
capable of ripening into a legal interest.

40 The Supreme Court of Nigeria in Okoye v. Dumez Nig. Ltd (1985) NWLR (Pt. 4)
Pg. 263; (1985) LPELR-2506 (SC) Pg. 14, Paras B - E per BELLO, JSC (of blessed
memory) held that “A registrable instrument which has not been registered is
admissible to prove such equitable interest and to prove payment of purchase
money or rent…” See also Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) Pg.
45 554; (2007) LPELR-1171 (SC) Pg. 55-56, Paras. F - B; and First Bank of Nig. Plc

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v. Okelewu & Anor (2013) LPELR-20155 (CA) Pg. 43-44, Paras. G - C where it
was held by this Court that: “.... an unregistered registrable instrument, though,
is not admissible to prove title, is admissible to prove payment of money
and coupled with possession of land by the purchaser it may give rise to an
5 equitable interest ...”

On the strength of the foregoing judicial authorities on the legal effect of an

unregistered registrable instruments: and taking into consideration the case of
the 2nd Respondent its Written Address at page 524 of the Records of Appeal
10 wherein the 2nd Respondent counter-claimed for declaration of title on the said
Plots 1 - 3 on the ground that he (Sir Anegbode) is a purchaser for value and that
he has “equitable title”; and the 2nd Respondent’s Reply to the Appellants at page
628 of the Records of Appeal, the 2nd Respondent made it clear that his claim was
premised on equitable title arising from the sale of Plots 1 - 3 to him (Sir Anegbode)
15 and on the payment of the purchase price of N117,000 and being given, and having
been in possession of the said plots 1 - 3: it is my view that the 2nd Respondent’s
case falls under the exception to the general rule that where the unregistered
registrable instrument sought to be relied upon as proof of payment or proof of the
existence of a transaction, is admissible and if coupled with act of possession,
20 may result in an equitable interest which may be equated to a legal interest. In
conclusion therefore, and in the light of the circumstances of the instant case, the
non-registration of Exhibits P39 and P66 does not negate or impeach the conclusion
reached by the learned trial Judge thereon. This issue is therefore resolved against
the Appellants in favor of the Respondents.
25
In resolving issue number five, I held the view that the debt in this appeal is statute
barred. I must make it clear that what becomes statute barred in the circumstance
is the right of the 1st Respondent to recover the debt through judicial process. The
fact that the debt is not disputed by the Appellants remains unimpeached. It
30 therefore remain established that there is a debt, this also goes to confirm that
plots 7-10 remain mortgaged to the 1st Respondent, the fact that the debt is statute
barred cannot in my view defeat the equitable interest created in favor of the 1st
Respondent in respect of the said plots 7-10. More so at page 677 of the Records
of Appeal, the learned trial Judge found and held as follows:
35
“The Claimants now claim from the 1st Defendant special damages
for the latter’s alleged frustration of the sale of Plots 1 to 3 on the
said two occasions. They also seek court declarations that those plots,
together with Plots 7 to 10, remain encumbered by security for the
40 loan it granted the 1st Claimant, and other declarations rendering
invalid any purported sale of Plots 1 to 3 to the 3rd Defendant…”

And as rightly found by the learned trial Judge at page 682 - 684 of the records of
appeal, the Court held as follows:
45

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“I have not included the matter of the remaining Plots 7 to 10 in this

formulation of the issues in dispute as I find, from the pleadings, that
the parties – specifically the claimants and the 1st and 2nd Defendants
– did not join issues regarding the 1st Defendant’s propriety interest
5 in them. It is clear that there is no controversy on the matter of them
remaining mortgaged to the 1st Defendant up till this day. Indeed,
the Claimants themselves seek declaratory relief to that effect. In the
event; I reach the Summary conclusion that the 1st Defendant’s
counter-claim in respect of the said Plots 7 to 10 will succeed.
10
Furthermore, the Appellant has not raised any issue in respect of those issues
neither has the Appellant challenged the finding of the learned trial Judge in respect
of the said issues 7 - 10. On this grounds, the decision of the learned trial Judge
in respect of Plot’s 7 - 10 is hereby affirmed.
15
This appeal succeeds in part all issue 5, having resolved issue number 5 in favor
of the Appellants, reliefs 1 and 2 dealing with the indebtedness of the Appellants in
the Judgment of the lower Court delivered on the 28th day of January 2008 are
hereby set aside.
20
With regards to Reliefs 3, 4, 5, 6 and 7, Appellants appeal lacks merit and same
is accordingly dismissed, the Judgment delivered by Okunnu J on the 28th day of
January 2008 in suit No. ID/146/98 is affirmed as per reliefs 3, 4, 5, 6 and 7.

25 Parties shall bear their respective costs.

OBASEKI-ADEJUMO, JCA: My learned -brother, TIJJANI ABUBAKAR, JCA had

afforded me in advance the opportunity of reading the judgment just delivered by me.

30 I also hold that the appeal succeeds in part with regards to reliefs 1 and 2 dealing
with the indebtedness of the Appellants but with regards to reliefs 3, 4, 5, 6 and 7,
the Appellants appeal lacks merit and is hereby dismissed.

The judgment of the High court of Lagos State per L. A. OKUNNU, J on the 28th of
35 January, 2008 is hereby affirmed.

I abide by all consequential orders.

TOBI, JCA: I have had course to read in draft the lead judgment of my learned
40 brother TIJJANI ABUBAKAR, JCA. His lordship has succinctly done justice to all
the issues presented in this appeal. I agree in entirety with his reasoning and the
conclusions reached and I have nothing more to add.

Cases cited in the Judgment

45 A.G. Lagos State. v. Dosunmu (1989) 3 NWLR (Pt. 111) 552

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A.G. Akwa Ibom State v. Essein (2004) All FWLR (Pt. 233) 1730
Adebanjo v. Brown (1990) 2 NSCC 336
Adedeji v. National Bank of Nigeria (1989) 1 NWLR (Pt. 96) 212
Adesokan v. Adetunji (1991) 5 NWLR (Pt. 346) 540
5 Adetono v. Zenith Int’l Bank Plc (2011) 12 MJSC (Pt. 111) 75
Agwunedu v. Onwumere (1994) 1 NWLR (Pt. 321) 375
Akibu v. Opaleye & Anor (1974) 11 SC 189
Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598
Alhaji A.A. Sanyinna v. AIB & Anor (2001) 4 NWLR (Pt. 703) 355
10 Alliance International Ltd v. Kolo International Enterprises Ltd (2010) LPELR-3749
(CA) 14
Anyah v. African Newspaper of Nig. Ltd (1992) NWLR (Pt. 247) 319; (1992) LPELR-
511 (SC) 20
Attah v. State (1993) 7 NWLR (Pt. 5) 257
15 Attorney General of Kaduna State & Ors v. Atta & Ors (1986) 4 NWLR (Pt. 38)
785 CA Alhaji Shuwa v. Chad Basin Development Authority (1991) 7 NWLR (Pt.
205) 550 CA
Awojugbage Light Ind. Ltd v. Chinukwe (2004) All FWLR (Pt. 229) 943
Bank of Baroda v. Iyalabani Ltd (1998) 2 NWLR (Pt. 539) 600
20 Bank of the North Ltd v. Bello (2000) 7 NWLR (Pt. 664) 244
Beloxxi & Company Limited & Anor v. South Trust Banks & Ors (2012) LPELR-
8021 (CA) 18
Bucknor-Mcleans v. Inlaks (1930) 8-11 SC 1
CPC v. Ombugadu & Anor (2013) LPELR-21007 (SC) 63
25 Dada v. Dosunmu (2006) 12 MJSC (Pt. 115) 149
Davies v. NDIC & Ors (2014) LPELR-23763 (CA) 33
Divine Ideas Ltd v. Umoru (2007) All FWLR (Pt. 380) 1468
Eastern Breweries Plc & Anor v. Henry Nwokoro (2012) 14 NWLR (Pt. 1321) 488
Edolor v. Osayande (1992) NWLR (Pt. 249) 524; (1992) LPELR-5053 (SC) 43
30 EFCC v. Ekeocha (2009) All FWLR (Pt. 458) 310
Ekaete v. Union Bank of Nigeria Plc (2014) LPELR- 23111 (CA) 66
Ekweghiariri v. Unachukwu & Ors (2013) LPELR- 22074 (CA) 20
Emavworhe Etajata & 2 Ors v. Pete Igbini Plogboo & Anor (2007) 6 SC (Pt. 11) 24
Emenyonu v. Udoh (2000) 9 NWLR (Pt. 671) 25
35 Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) Pg. 554; (2007) LPELR-1171 (SC) 55
Ezeafulukwe v. John Holt Ltd (1996) 2 NWLR (Pt. 432) 511 SC
Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 849) 617
Fagunwa v. Adibi (2004) FWLR (Pt. 7.26) 340
Faleye & Ors v. Dada & Ors (2016) LPELR-40297 (SC) 33
40 Federal Mortgage Bank Ltd. v. IDK (1995) 6 NWLR (Pt. 400) 226
First Bank of Nig. Plc v. Okelewu & Anor (2013) LPELR-20155 (CA) 43
Gbadamosi v. Kabo Travels Ltd (2000) 8 NWLR (Pt. 668) 243
GFK Investment Ltd. v. Nitel Plc (2009) 2 CLRN 111
Hamidu v. Saha Ventures Ltd (2004) 7 NWLR (Pt. 813) 618
45 Hensaw v. Effanga (2009) All FWLR (Pt. 466) 1901

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Ifeajuna v. Ifeajuna (2000) 9 NWLR (Pt. 671) 107

Isistor v. Fakorede (2008) 1 NWLR (Pt. 1069) 602
Jolasun v. Bamgboye (2011) 16 WRN 1
Kegwuoha v. Ohawuchi (1996) 31 NWLR (Pt. 435) 146
5 Klifco (Nig) Ltd v. N.S.I.T.F.M.B (2005) 6 NWLR (Pt. 922) 445
L.S.D.P.C v. N.L. & S.F. Ltd (1992) 5 NWLR (Pt. 244) 653
Mamuda v. State (2019) LPELR-46343 (SC) 15
MBA v. MBA (2018) LPELR- 44295 (SC) 31
Molade v. Molade (1953) SCNLR 26
10 Nicon v. Power & Industrial Engr Co. Ltd (1986) 1 SC 1
Nig. Housing Dev. Society Ltd & Anor v. Mumuni (1997) NSCC 65
Nokoprise Int. Co Ltd v. Do Best Corpn. (1997) 9 NWLR (Pt. 570) 334
Nwadiaro & Ors v. SPDC (1990) 5 NWLR (Pt. 150) 322
Obianwu & Ors v. Obianwu & Ors (2017) LPELR-42676 (CA) 65
15 Ogbimi v. Niger Construction Ltd (2006) All FWLR (Pt. 317) 390
Ogun v. Asemah (2002) 4 NWLR (Pt. 756) 208
Ogunsola v. National Insurance Corporation of Nigeria (NICON) (2010) 6 NMLR 363
Okere v. State (2016) LPELR-26057 (SC) 30
Okomu Oil Palm Co. v. Iserhienrhien (1996) 1 NWLR (Pt. 422) 94
20 Okoye v. Dumez Nig. Ltd (1985) NWLR (Pt. 4) 263; (1985) LPELR-2506 (SC) 14
Okunzua v. Amosu (1992) NWLR (Pt. 245) 416; (1992) LPELR-2531 (SC) 20
Olale v. Ekwelendu (1989) 4 NWLR (Pt. 115) 326
Olatunbosun v. Texaco Nig. Plc (2012) LPELR-7805 (SC) 18
Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514
25 Pam & Anor v. Mohammed & Anor (2008) 16 NWLR (Pt. 1112) 1 SC
R.T. Briscoe (Nig.) Ltd v. Universal Insurance Limited (1996) 2 ALR COMM 263
Sa’ad v. Maifata (2009) All FWLR (Pt. 466) 1930
Securities And Exchange Commission v. Kasunmu (2003) 12 CMLR 133
Suberu v. A.I.S. & Ltd (2001) All FWLR (Pt. 380) 1512
30 Tukur v. UBA & Ors (2012) LPELR-9337 (SC) 45
U.B.A v. BTL Industries Ltd (2007) 1 CLRN 1
UBA Plc v. J. I. Efemini & Sons (2018) LPELR-44150 (CA) 19
Umar v. Bailey & Ors (2018) LPELR-44285 (CA) 37
University of Ibadan v. Adetoro (1991) 4 NWLR (Pt. 185) 375
35 Uzoma v. Asodike (2009) LPELR-8421 (CA) 19
Wema Bank v. Owosho (2018) LPELR-43857(CA)
Yaro v. AC Ltd (2007) 10 MJSC (Pt. 186) 203

Foreign cases cited in the Judgment

40 Elkali & Anor v. Fawaz 6 WACA 212
Mills v. Renner 6 WACA 144
Taylor v. Arthur 14 MACA 179

Statutes cited in the Judgment

45 Section 15 of the Land Instrument Registration Law of Lagos State

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Sections 30(1), 37-44 & 45 (1) of the Limitation Law of Lagos State, Cap 70, Laws
of Lagos State, 1973

Book referred to in the Judgment

5 Black’s Law Dictionary, 7th Ed.

History:

HIGH COURT
10 High Court of Lagos State
Okunnu, J

COURT OF APPEAL (Lagos Division)

Tijjani Abubakar, JCA (Presided & Read the lead Judgment)
15 Abimbola O. Obaseki-Adejumo, JCA
Tobi Ebiowei, JCA

Counsel:
E. E. Asia for the Appellant.
20

25

30

35

40

45

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NICON TRUSTEES LIMITED v. ALMA BEACH ESTATE LIMITED (IN

RECEIVERSHIP)

COURT OF APPEAL
5 (LAGOS DIVISION)

CA/L/999/2018
THURSDAY 18TH APRIL, 2019

10 (ABUBAKAR; OGAKWU; TOBI, JJ.CA)

WINDING UP – Locus Standi – A receiver only has locus to sue on behalf of the
company, persons whose actions or omissions may affect the exercise of his powers
but has no powers to sue the company for which he was appointed a receiver.
15
APPEAL – Ground of Appeal – must flow from the judgment appealed otherwise it
is incompetent and liable to be struck out.

APPELLATE COURT – Interference – An appellate court will not interfere but

20 affirm the right decision of a lower court.

LITIGATION – Misjoinder – Striking out is the proper order to make where there
is a misjoinder or non-joinder of parties.

25 PARTIES – Jurisdiction – The court lacks jurisdiction to hear and determine a suit
in which proper parties are not before the court.

Facts:

30 Following the winding up of the respondent, the appellant appointed a receiver to

take over and administer the assets and liabilities of the respondent. In a bid to
effectively carry out his mandate, the receiver filed an originating summons, in the
name of the appellant, against the respondent and her directors, agents and assigns
at the Federal High Court, Lagos Division seeking an order to restrain them from
35 obstructing, hindering or interfering with the powers of the receiver.

After hearing the parties on the application, the trial court dismissed the suit on
the ground that the proper parties were not before the court. The court further held
that the appellant is an agent of the respondent for the purpose of the winding up
40 and that the suit should have been against persons whose acts or omissions may
hinder the exercise of the receiver’s mandate. The court also held that it is only
the board of directors that can hinder the work of the receiver and that by the
provisions of the applicable law, once a receiver is appointed, the powers of the
board are suspended but that the appellant did not sue the board instead sued its
45 principal, the respondent.

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Dissatisfied with the ruling of the trial court, the appellant filed a notice of appeal
at the Court of Appeal, Lagos Division urging the court to set aside the decision of
the trial court. The parties filed their briefs of argument and the respondent
incorporated a preliminary objection in its brief wherein it challenged the
5 competence of some grounds of the appeal as incompetent, having not emanated
from the decision appealed.

One of the issues for determination is whether dismissal of a suit is the proper
order to make where a court finds that the proper parties are not before it in the
10 suit.

Held (Unanimously allowing the appeal in part and dismissing the preliminary
objection):

15 [1] Winding Up – Locus Standi – A receiver only has locus to sue on

behalf of the company, persons whose actions or omissions may
affect the exercise of his powers but has no powers to sue the company
for which he was appointed a receiver.

20 Although section 391 of CAMA is instructive on the position that a Receiver/

Manager appointed out of court, (including under a Trust Deed) may apply
to the court for direction in relation to any particularly matter arising in
connection with the performance of his function, the decision in Unibiz
(Nig) Ltd v. N.P.F.M.B. (supra) clearly supports the view that the Appellant
25 as the appointor/principal of the Receiver/Manager pursuant to the
Debenture Trust Deed can rightly take action for and on behalf of the
Receiver/Manager, its agent, however, it is expedient to observe that where
an action is brought by the Appellant in its capacity as principal of the
Receiver/Manager, particularly where the reliefs sought by the Appellant
30 as in the instant case are essentially for the benefit of the Receiver/
Manager, it will be improper to proceed against the Respondent, a company
in respect of whom the Appellant had already appointed the said Receiver/
Manager, as the Appellant cannot act as Plaintiff and Defendant in the
same case. Without any scintilla of doubt, any action commenced for the
35 benefit of the Receiver/Manager must be directed against the persons
whose conduct, acts or omissions are sought to be restrained and not
the entity in whose favour or benefit the action was commenced in the
first place. This is what the Appellant has done in the instant case, and
certainly this will not be allowed to stand. The interest of the Appellant
40 and the Receiver/Manager are aligned; the Appellant cannot therefore
proceed against the Respondent in the manner as done herein.
(P. 153 lines 15 - 34)

[2] Appeal – Ground of Appeal – must flow from the judgment appealed
45 otherwise it is incompetent and liable to be struck out.

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Abubakar, JCA

The arguments canvassed by the learned Senior Counsel for the

Respondent is to the effect that the grounds of appeal contained in the
Notice of Appeal do not relate to the judgment of the lower court, the law
is well settled that grounds of appeal must flow from the decision of the
5 lower court complained of and any ground of appeal which does not arise
or flow from the judgment, complained of, will be deemed incompetent
and therefore be struck-out. See Mr. Ibibiama Odom & Ors v. PDP & Ors
(2015) LPELR - 24351 (SC); Veepee Ind. Ltd v. Cocoa Ind. Ltd (2008) 4 -
5 SC (Pt. 1) 116. (P. 146 lines 23 - 31)
10
[3] Appellate Court – Interference – An appellate court will not interfere
but affirm the right decision of a lower court.

In Pate & Ors v. Odeyemi (2015) LPELR - 40755 (CA), this Court held that
15 where a trial court carries out its assignment satisfactorily, an Appeal
Court shall be left with no option than to affirm such a decision.
(P. 154 lines 5 - 7)

[4] Litigation – Misjoinder – Striking out is the proper order to make

20 where there is a misjoinder or non-joinder of parties.

For the avoidance of doubt, failure to proceed against a proper party cannot
result in the dismissal of a suit, the appropriate order that ought to be
made is one of striking out the suit. The law is well settled, as rightly
25 argued by the learned Counsel for the Appellant that, non- joinder or
misjoinder of parties will at best result in an order striking out the suit so
as to enable the Plaintiff relist same and commence against the proper
party. See: Awoniyi & Ors v. The Registered Trustees of the Rosicrucian
Order (2000) LPELR - 655 (SC); Hyson (Nigeria) Limited v. Augustina N.
30 Ijeoma & Ors (2008) LPELR - 5159 (CA). (P. 154 lines 30 - 37)

[5] Parties – Jurisdiction – The court lacks jurisdiction to hear and

determine a suit in which proper parties are not before the court.

35 In Ayoola v. Baruwa & Ors (1999) 11 NWLR (Pt. 628) 595 AT 615, it was
held that, where proper parties are not brought before the Court as laid
down in our jurisprudence there is lack of jurisdiction and locus standi as
the action will be incompetent. (P. 154 lines 42 - 45; P. 155 line 1)

40 ABUBAKAR, JCA (Delivering the lead Judgment): The Federal High Court of
Nigeria, Lagos Division, presided over by FAJI, J., delivered a Ruling on the 22nd
day of June, 2018, dismissing the Appellant’s suit on ground that proper parties
were not sued before the Court. Dissatisfied with the said Ruling, the Appellant
filed Notice of Appeal dated the 26th day of June, 2018 containing eight grounds of
45 appeal.

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Learned Counsel Ejeta Otuoniyo filed the Appellant’s brief of argument on the 3rd
day of September, 2018, same learned Counsel filed the Appellants reply brief on
the 5th day of November, 2018. In the Appellant’s Brief of Argument, learned Counsel
identified four issues for determination, the issues are reproduced as follows:
5
1. Whether in the face of the Court of Appeal decision in Appeal
No. CA/L/365/2004, which held the debtor company as lacking
locus standi to sue or deal with the charged assets and the
consequential Ruling of the trial Court, coram Obiozor J.
10 made on the 9th of January which determined the debtor
company and its privies rights and participation in the current
suit, the same court had any jurisdiction, howsoever left to
have entertained and accommodated the debtor company
and its counsel to resume participation in the same suit and
15 proffer written argument to defeat the discretionary
proceedings filed by the Appellant against the Respondent
to seek judicial protection for its appointed Receiver?

2. Whether there was any judicial evidence, processes or facts,

20 latent or patent before the trial judge for him to come to the
‘over riding’ conclusion that the current suit was commenced
by the Appellant on behalf of the appointed Receiver against
the Company in Receivership?

25 3. Whether the process of determining the question of

interpretation of Schedule 11 of The Companies and Allied
Matters Act, 1990 on who is entitled to appoint a Solicitor for
a company in Receivership can dovetail into dismissing an
action on arguments canvassed by a non-party and without
30 any judicial process before the court?

4. Whether a finding on improper joinder or misjoinder of

parties, especially of parties barred from participating in a
proceeding, should rest in a peremptory dismissal of an action
35 commenced discretionally by the Appellant to seek judicial
protection for its appointed Receiver?

Learned Senior Counsel for the Respondent Oyetola Oshobi SAN filed the
Respondents brief of argument on the 8th day of October 2018, wherein he
40 nominated the following sole issue for determination:

“In the light of Section 391 of the Companies and Allied Matters Act
and the Appellant’s contention before the lower court that it was the
receiver/manager that had the competence to instruct counsel to
45 represent the Respondent, whether the lower court was right to have

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dismissed the Appellant’s Originating Summons for being a gross

abuse of the judicial process on the ground that the said Originating
Summons was effectively a case of a plaintiff suing itself as a
defendant?
5
Meanwhile a Notice of Preliminary Objection dated 8th of October, 2018 was filed
by the Respondent on the grounds that:

Ground 1, 2, 3, 4, 5, 6, 7 and 8 of the Notice of Appeal from which Issues 1 - 4 in

10 the Appellant’s brief of arguments are raised are incompetent for the reason that
they do not arise from the ruling appealed against.

1. Leave of court was not obtained to raise the fresh issue of

misjoinder of parties.
15
2. Issues 1, 2, 3 and 4 are incompetent as they are formulated
from incompetent grounds of appeal.

Arguments in respect of the preliminary objection are incorporated in the

20 Respondent’s brief. Since the preliminary objection seeks to terminate in limine
the appeal before this court, I will first consider its merit before proceeding, if
necessary, to consider the merits of the substantive appeal filed by the Appellant.

PRELIMINARY OBJECTION
25
Learned Senior Counsel for the Respondent referred to the decision in Saraki v.
Kotoye (1992) 9 NWLR (Pt. 264) 156 at 184, paras E to F, to submit that grounds
of appeal must arise from the decision of the lower court. It is also the submission
of learned counsel that eight grounds of appeal contained in the Notice of Appeal
30 have no bearing with the judgment of the lower court. Learned counsel analysed
the said grounds of appeal before reaching the conclusion that they do not flow
from the judgment of the lower Court, relying on The Minister of Petroleum &
Mineral Resources & Anor v. Expo-Shipping Line (Nigeria) Ltd (2010) LPELR -
3189 (SC); Eyo & Ors v. Okpa & Anor (2010) 6 NWLR (Pt. 1191) 611; Ogunbadejo
35 v. Owoyemi (1993) LPELR - 2321 (SC); Olagunju & Anor v. PHCN Plc (2011)
LPELR - 2556 (SC).

Submitting on the effect of such incompetent grounds which are liable to be struck
out, counsel relied on Williams & Anor v. Adebayo & Ors (2012) LPELR - 7940
40 (CA). He further relied on Adesina v. Adeniran (2006) 18 NWLR (Pt. 1011) 359 to
submit that the issues formulated by the Appellant from the incompetent grounds
are incompetent as well. It is also the submission of learned counsel, relying on
Arewa v. Olanrewaju (2007) LPELR - 8789 (CA); Bank of Industry Limited v.
Awojugbagbe Light Industries Limited (2018) LPELR - 43812 (SC); Ehuwa v.
45 O.S.I.E.C. (2006) 10 NWLR (Pt. 1012) 544 that this court has no jurisdiction to

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entertain the present appeal having regard to the fact that all the grounds of appeal
and issues formulated therefrom are incompetent.

In the Appellant’s Reply Brief, learned Senior Counsel for the Respondent contended
5 that the Appellant’s grounds of appeal arose from the issues joined by the parties
and from the decisions of the lower Court, relying on Coscharis Motors Limited v.
Capital Oil & Gas Ltd (2016) Vol. 25 WRN 138 at 158; Ogbolosingba & Anor v.
Bayelsa State Independent Electoral Commission (2016) 2 WRN 35 at 59;
Onafowokan v. Wema Bank (2011) Vol 48 WRN 1; Compagnie Generale De Geo
10 Physique (Niglt) CGG Nig Ltd v. Moses Aminu (2016) WRN 35 at 51. He argued
that grounds 1, 7 and 8 are grounds on the jurisdiction of the trial Judge in the face
of clear and unambiguous decision, of this court in Appeal CA/L/365/2004 and the
extant provisions of the Companies and Allied Matters Act, (CAMA).

15 Counsel referred to the relevant portion of the Ruling of the Lower court to buttress
the point that all the grounds contained in the Notice of Appeal flow from the
Ruling of the lower court.

RESOLUTION OF RESPONDENT’S PRELIMINARY OBJECTION

20
I have carefully gone through the grounds of objection contained in the Respondent’s
Notice of Preliminary Objection as well as the arguments canvassed in respect
therefore, I must say at once that I see no merit in the objection. The arguments
canvassed by the learned Senior Counsel for the Respondent is to the effect that
25 the grounds of appeal contained in the Notice of Appeal do not relate to the judgment
of the lower court, the law is well settled that grounds of appeal must flow from the
decision of the lower court complained of and any ground of appeal which does
not arise or flow from the judgment, complained of, will be deemed incompetent
and therefore be struck-out. See Mr. Ibibiama Odom & Ors v. PDP & Ors (2015)
30 LPELR - 24351 (SC); Veepee Ind. Ltd v. Cocoa Ind. Ltd (2008) 4 - 5 SC (Pt. 1)
116. I have read carefully, the Ruling of the lower court delivered on 22nd June,
2018 and juxtaposed same with the eight grounds of appeal contained in the
Appellant’s Notice of Appeal, and I have no hesitation in reaching the conclusion
that the said grounds emanate from the Ruling of the lower court.
35
The eight grounds of appeal cover the Appellant’s complaint that the trial judge
erred in law when he disregarded the decision of this Court in Appeal No. CA/L/
365/2004 which declared the debtor company as lacking locus standi, thereby
granting the debtor company the standing to challenge a suit brought by the
40 Appellant as creditor, who exercised its power to appoint a receiver over the debtor
company. It is therefore out of place for the Respondent to argue that the said
grounds, do not emanate from the decision of the lower court. To this extent
therefore, the Respondents’ Preliminary Objection lacks merit and same is hereby
dismissed by me.
45

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Having dealt with the preliminary objection, I will proceed to consider the arguments
canvassed by counsel on the substantive appeal before this court.

SUBMISSIONS OF COUNSEL FOR THE APPELLANT ISSUE ONE

5
Appellant’s counsel referred to the provisions of a Debenture Trust Deed dated
20th February, 1991 and registered as No. 75 at page 75 in volume 1949 of the land
Registry, Lagos, Clause 26.01 thereof, to submit that by the exercise of the rights
in the debenture trust deed, the Appellant appointed a Receiver/Manager – Mr.
10 Mogbeyi Sagay, SAN in 2003, whereupon the debtor company attempted to obtain
injunctions against the Appellant and its Receiver resulting in the suit leading to
the Appeal in CA/L/365/2004, wherein this court relying on the Supreme Court
decision in Emezi v. Osuagwu (supra) held that the debtor company lacks the
locus standi to sue or deal with the assets after the appointment of the receiver.
15 Counsel referred to the Ruling of Obiozor, J wherein an order to re-enter and preserve
the assets was granted before narrating the proceedings before Obiozor, J., on
the basis upon which he submitted that the trial court became functus officio as
regards the debtor company and its privies participation in the instant suit, because
it was robbed of jurisdiction, learned Counsel relied on the decision in Emezi v.
20 Osuagwu (2005) 12 NWLR (Pt. 939) 340; Din v. Attorney General Of The Federation
(1986) 1 NWLR (Pt. 17) 417.

Relying on the decision in EFCC v. Ayodele Fayose & Anor (2018) LPELR 44 131,
counsel argued that the law forbids a lower court from reviewing the decision of a
25 higher court, no matter how strong it feels about it, counsel further submitted that
the decision of the lower Court per Faji J, was an assault on the judgment of this
Court in Appeal No CA/L/365/2004, learned Counsel gave reasons why the decision
constitutes an assault, ranging from the order of 26th October 2017 granting
protection, and the Ruling of Obiozor J, of 9th January 2018, all set out in the
30 Appellant’s brief of argument.

ISSUE TWO

Learned Counsel for the Appellant submitted that it is an established principle of

35 law that where the terms of a contract are clear and unambiguous, the courts are
bound to give effect to such terms. Counsel relied on the case of JFS Investment
Ltd v. Brawal Line Ltd & 2 Ors (2011) 17 WRN 1 AT 43. On the above premise
counsel opined that it is curious that the lower Court per Faji, J., chose to re-write
the contract when without any prompting it began to question the position of the
40 appointment of the Receiver and went into discovery of facts not properly placed
before it.

Counsel submitted that the findings of the lower Court, are perverse as there is
nothing before the Court suggesting or giving an inkling that it was the Receiver
45 that sued the Company in Receivership. Counsel relied on the decision in Unibiz

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(Nig.) Ltd v. Commercial Bank Credit Ltd (2003) 6 NWLR (Pt 816) 402. Counsel
further argued that there is no legal basis for the findings made by the learned
judge. Counsel relied on the decisions in Mufutau Olayiwola & 4 Ors v. FRN (2006)
8 WRN 109, 148-149 and Odu’a Inv. Co. Ltd v. Talabi (1991)1 NWLR (Pt 170) 761.
5
Counsel submitted that the confusing and confused findings not canvased before
the court and not supported by law was an attempt to re-write the debenture, read
into the court processes as substitution of the parties on record, convert the
discretionary proceedings for protective orders as full dressed trial of the terms of
10 the debenture by the Honourable Judge Faji which lacked jurisdiction to do.

ISSUE THREE

Appellant’s counsel relying on Sections 393(3) and (4) of the Companies and
15 Allied Matters Act; Dagazzau v. Bokir Int’l Ltd (2011) 14 NWLR (Pt. 1267) 261
supported the Receiver appointed solicitor’s position that as the sole administrator
of the company in receivership, he alone can appoint a solicitor to represent the
company in receivership. The Appellant also argued that the debtor company had
no legal process or standing before the court to challenge the competence of the
20 suit as the only process it had was determined and struck out in the Ruling of 9th
January 2018.

Learned counsel for the Appellant submitted that the trial judge had no legal basis
to dismiss an action at the instance of a party who had no process before it.
25 Counsel relied on the decision in Agbareh v. NIMRA (2008) 2 NWLR (Pt. 1071)
378. Counsel argued that there was no process before the court praying the court
to dismiss the action, hence the learned trial Judge therefore chose to give what
the Court was not requested to give. Learned Counsel relied on the decision in
Adeolu Adeleke & 2 Ors v. Rashidi Ladoja (Citation Not Provided) to submit that
30 since the Court admitted that the merits of the case were not heard and determined,
an order of dismissal was punitive, he therefore urged this court to hold the order
of dismissal is null, void and therefore given without jurisdiction.

ISSUE FOUR
35
Arguing the fourth issue for determination, learned Counsel for the Appellant said
the issue of joinder or misjoinder was never canvassed before the learned trial
Judge. Counsel argued further that the action of the learned trial judge in dismissing
a suit on the basis that a wrong defendant was sued constituted an abuse of court
40 process, and that it is not the settled position of the law, and on that ground
submitted that a trial judge is not expected to dismiss a suit on grounds of non-
joinder or misjoinder of parties. Counsel relied of the decision in Babatunde Harding
& Anor v. Administrator General And Public Trustee of Lagos State & Anor (2016)
LPELR - 40990 (CA); Sogbamu v. Odunaiya (2013) All FWLR (Pt. 700) 1247 at
45 1307, and Order 9 Rule 6 of the Federal High Court Civil Procedure Rules, 2009 to

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urge that failure to join a party or commencing an action in the name of the wrong
defendant will not lead to the dismissal of the suit, as the court may upon application
order a substitution or addition of any person as Defendant or correction of any
such name, or otherwise strike out the said suit, he so urged this Court.
5
SUBMISSIONS OF COUNSEL FOR THE RESPONDENT

On the sole issue formulated for determination, learned Counsel for the Respondent
referred to the reliefs sought by the Appellant as per its Originating Summons
10 dated 10th August, 2017, before submitting that it is clear that the Appellant brought
the claims against Alma Beach, its agents, servants, or privies and therefore the
party that was sued is the very company over which the Appellant purports to have
appointed a receiver. Referring to section 36(1) of the 1999 Constitution; Uma &
Ors v. Effiom & Ors (2013) LPELR - 21407 (CA), counsel argued that having
15 sought orders against Alma Beach, the latter has the constitutional backing to
come before the lower court and be heard in the said action.

Learned Counsel submitted that, in law a company does not cease to exist or
lose its legal personality on the appointment of a receiver, counsel relied on
20 Intercontractors v. National Provident Fund Management Board (1998) 2 NWLR
(Pt. 76) 280 at 292, to submit that the board of directors of a company retains its
powers in respect of assets that are not subject to receivership; that in this case,
it is established that Alma Beach continues to function as a going concern. He
noted that given the provisions of the Companies and Allied Matters Act and the
25 contentions of the Appellant that it is the receiver/manager (Abah Onah, Esq.)
that was sued and ought to appoint counsel to defend the suit at the lower court,
the suit at the lower court amounts to an abuse of court process. He referred to
sections 388, 389, 390 and 391 of CAMA on the mode of appointment of receiver/
manager and its status as agent as creditor-company, Citing Unibiz (Nig.) Ltd v.
30 C.B.C.L. Ltd (supra).

It is therefore the Respondent’s argument that the trial judge was correct in
concluding that the action in the lower court was filed by the Appellant solely on
behalf of the Receiver/Manager purportedly appointed by it, referring to the Affidavit
35 of facts dated 20th February, 2018 filed by the Appellant and deposed to by the said
receiver appointed by it. Learned Senior Counsel for the Respondent argued that
the suit at the court below was a ploy by both parties to obtain judicial orders
against Alma Beach, without the participation of Alma Beach, all in the guise of
appointment of a receiver over the property of Alma Beach. It is the contention of
40 learned counsel that based on the prayer sought by the Appellant as per the
Originating Summons, particularly prayer (d), the Appellant is seeking an order
restraining the defendant and the receiver, who is an agent of the defendant, from
interfering with the performance of the duties of the receiver. Noting that this
arrangement defies reason and that the proper conclusion to reach is that there is
45 no proper defendant before the court, Counsel submitted that a person cannot be

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the plaintiff and the defendant in the same suit, citing Oheakilam v. Nwamara
(2003) 12 NWLR (Pt. 835) 614, para E and H.

It was also submitted on behalf of the Respondent that by suing “Alma beach
5 Estates Limited (In Receivership)”, which implies suing the Receiver/Manager, on
behalf of the Receiver/Manager, the intention of the Appellant was to be both
Plaintiff and Defendant. Therefore, the lower court was right to have dismissed the
suit for being an abuse of court process in terms of parties before the court. He
referred to the decisions in Central Bank of Nigeria v. Saidu H. Ahmed & Ors
10 (2001) 5 SC (Pt. 11) 146; Edgerode v. Ikine (2001) SC (Pt. 11) 94; Arubo v.
Aiyeleri (1993) 3 NWLR (Pt. 280) 126; Agwasim v. Ojichie (2004) 10 NWLR (Pt.
882) 613 at 624 to 625 (SC); Dinyadi v. INEC (2001) 44 NSCQR 301 at 340 on
what amounts to abuse of court process. He concluded on the authorities of
T.S.A. Industries Limited v. First Bank of Nigeria Plc (Supra); Osun State
15 Independent National Electric Commission & Anor v. NCP (2013) 9 NWLR (Pt.
1360) 451 at 466, para H that once it is found as in the instant case that the suit
amounts to an abuse of court process, the appropriate order to be made by the
court, will be an order of dismissal. He urged that the Ruling of the lower court be
affirmed on this ground.
20
APPELLANT’S REPLY

It is the contention of the Appellant’s counsel in the Reply Brief that the transaction
giving rise to the proceedings before the lower court is a contract inter partes,
25 reduced into writing with covenants, (the Debenture Trust Deed) which the courts
will not ordinarily interfere with. He noted that an artificial person only speaks
through its organs i.e. directors, General meeting etc. and the in the event of a
receivership or voluntary winding up, these organs get replaced with a Receiver or
the liquidator. He argued that the debtor company is not shut out or denied fair
30 hearing as the right may only apply to natural persons and not artificial corporations
who can only speak through organs of the company.

It was further submitted by learned Counsel for the Appellant that the suit giving
rise to this appeal was a discretionary one on the need to seek judicial and security
35 protections (directions) for the Receiver to do his work. He further noted that though
a company in receivership does not lose its legal personality, but that the law
however curtails its right to sue and deal on the assets when a Receiver is
appointed, citing Alhaji Tljani Dagazau & Anor v. Bokir Int’l Company Limited &
Anor (Supra).
40
RESOLUTION

Having carefully gone through the submissions of counsel on the issues nominated
for determination in this appeal and the Ruling of the lower court, I am of the view
45 that the thin issue central to the determination of this appeal is whether the learned

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trial judge was right when he dismissed the Appellant’s suit as constituted in Suit
No. 1242/2017?

At pages 844 to 845 of Volume II of the records of appeal, the learned trial judge
5 held as follows:

“There is also the issue of res judicata based on the decision of the
Court of Appeal in CA/L/365/2004 and the Ruling of Obiozor, J. of
09/1/18. What did the Court of Appeal decide? I refer to page 129 of
10 the law report by Nimpar JCA as follow:

The Receiver/Manager as agreed by all in this suit is an agent of the

debtor company. He was appointed by the creditor company, making
him also an agent of the creditor. The issues herein seem to be whether
15 or not the Receiver/Manager as agent of the creditor can, as agent of
the debtor appoint counsel to the debtor (Defendant) in a suit by the
creditor for orders that will enure to the benefit of the Receiver/
Manager. If the Plaintiff contends that this issue was resolved in the
Court of Appeal decision in CA/L/365/2006, then it would seem that
20 the reverse situation to that referred to at page 129 supra would apply
to wit: the agent of the debtor company i.e. Receiver/Manager cannot
sue a debtor company”

I must pause here to briefly address the argument canvassed by the learned
25 Counsel for the’ Appellant that the learned trial judge disregarded the decision of
the Court of Appeal in CA/L/365/2006, which I find to be unfounded. It is clear from
the above portion of the Ruling of the lower court that the learned trial judge aptly
considered the said judgment and came to the above reproduced conclusion,
which in my view, is unassailable.
30
Still on the records of the lower Court, at pages 846 of the records of appeal, the
learned trial judge further held as follows:

“The creditor (Plaintiff herein) can sue on behalf of the Receiver/

35 Manager. See UNIBIZ VS CBCLN - The Receiver/Manager can sue or
defend on behalf of Debtor Company. See Wema Bank v. Onafowokan
and Section 391 CAMA. Please note that the word is OR not AND.

The Receiver/Manager therefore has power to bring or defend any

40 action or other legal proceedings in the name and on behalf of the
company. See schedule 11 of CAMA and section 393 CAMA...

It is instructive that as stated by Plaintiffs’ counsel, this suit to get

cloaking orders in favour of the Receiver/Manager appointed by
45 Plaintiff who is agent of the debtor - the Defendant.....

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The purport of the suit is to make sure the Defendant or its members,
directors, shareholders, and employees do not hinder the Receiver/
Manager from carrying out its functions. Indeed, the directors are
not to do in view of Section 393(4) CAMA (Supra).
5
It is agreed that the Receiver/Manager is an agent of the debtor
company in so far at the property charged is concerned. Relief (d) is
instructive....

10 It is instructive that the relief is against Alma Beach Estates Ltd

simpliciter and not Alma Beach Estates Ltd in receivership or the
named Defendant. The consequences loom but since that point was
not argued, I will go no further.

15 That the suit was filed on behalf of the Receiver/Manager is also

clear from the affidavit of facts sworn to by the Receiver/Manager on
22/2/18. The powers of the Board are suspended upon the
appointment of the Receiver/Manager. Only the Board can therefore
hinder the Receiver/Manager from carrying out its functions since
20 the Receiver/Manager is agent of the company. The Board was
however not sued and the Receiver/Manager in essence has sued his
principal, seeking relief against his principal when they are all
supposed to be on the same side.

25 Indeed he is seeking reliefs that will enure for his own benefits against
his principal in whose interest he is supposed to act in so for as the
subject-matter of the charged is concerned.…..

In the circumstances, it would seem that the interest of the Receiver/

30 Manager, the Plaintiff and the debtor- company are intertwined and
cannot be separated. The only people who are outside this group is
the Board of Directors of the debtor-company who alone can put
forward an interest adverse to the Plaintiff, the Receiver/Manager
and the debtor-company as regards the charge. The Receiver/Manager
35 is clearly the Plaintiff and Defendant herein. That is not allowed. If
the Receiver/Manager cannot be Plaintiff and Defendant at the same
time, then he cannot instruct counsel for the Defendant.”

As I have earlier stated, the Appellant commenced the action leading to the instant
40 appeal by Originating Summons dated 10th August, 2017 seeking sundry reliefs
which were geared towards ensuring the effective and proper exercise by, ABAH
ONAH, Esq., of his powers as the Receiver/Manager of the Respondent. As the
learned trial judge rightly observed, the purport of the suit before the lower court
leading to this appeal is to ensure that the members, officers, directors and
45 employees of Alma Beach Estate Limited from hindering the Receiver/Manager

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from interfering with the exercise of the power of the Receiver/Manager. In the
instant case, rather than commence the preservative action, commenced at best
on behalf of the Receiver/Manager, against the Board of Directors, members, or
employees of the Company, the Appellant and the Receiver/Manager, who
5 countenanced the present action, has proceeded against its own principal in whose
interest he is supposed to act in relation to the charged assets. A careful look at
both the Affidavit in support of the Originating Summons at pages 9 to 13 of the
records of appeal and the Affidavit of facts filed by the Receiver/Manager, it shows
quite clearly that the action at the lower court seeks to restrain the Alma Beach
10 Estate Limited and her directors, agents and assigns from obstructing, hindering
or interfering with the powers of the Receiver/Manager. See paragraph 18 of the
Affidavit in support and paragraphs 7 to 13 of the Affidavit of Facts filed by the
Receiver/Manager.

15 Although section 391 of CAMA is instructive on the position that a Receiver/Manager

appointed out of court, (including under a Trust Deed) may apply to the court for
direction in relation to any particularly matter arising in connection with the
performance of his function, the decision in Unibiz (Nig) Ltd v. N.P.F.M.B. (supra)
clearly supports the view that the Appellant as the appointor/principal of the
20 Receiver/Manager pursuant to the Debenture Trust Deed can rightly take action
for and on behalf of the Receiver/Manager, its agent, however, it is expedient to
observe that where an action is brought by the Appellant in its capacity as principal
of the Receiver/Manager, particularly where the reliefs sought by the Appellant as
in the instant case are essentially for the benefit of the Receiver/Manager, it will
25 be improper to proceed against the Respondent, a company in respect of whom
the Appellant had already appointed the said Receiver/Manager, as the Appellant
cannot act as Plaintiff and Defendant in the same case. Without any scintilla of
doubt, any action commenced for the benefit of the Receiver/Manager must be
directed against the persons whose conduct, acts or omissions are sought to be
30 restrained and not the entity in whose favour or benefit the action was commenced
in the first place. This is what the Appellant has done in the instant case, and
certainly this will not be allowed to stand. The interest of the Appellant and the
Receiver/Manager are aligned; the Appellant cannot therefore proceed against the
Respondent in the manner as done herein.
35
Appellant’s counsel made heavy weather on the point that there is nothing before
the lower court suggesting that it was the Receiver that sued the Company in
Receivership. Nothing can be farther from the truth. In the first place, the decision
of the Supreme Court in Unibiz (Nig) Ltd v. CBC Ltd (Supra) relied upon by the
40 Appellant is clearly an authority on the point that the Creditor can sue on behalf of
the Receiver/Manager, and as the learned trial judge rightly observed, the fact that
the suit was filed on behalf of the Receiver/Manager is obvious from the affidavit of
facts sworn to by the Receiver/Manager on 20th February, 2018 which was presented
at the lower court by the Appellant. The facts deposed to in the said affidavit found
45 at pages 692 to 694 of the record of appeal leave me in no doubt that the Appellant

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and the Receiver/Manager are acting in concert, particularly when those facts are
juxtaposed with those contained in the Affidavit filed in support of the Originating
Summons by the Appellant.

5 In Pate & Ors v. Odeyemi (2015) LPELR - 40755 (CA), this Court held that where
a trial court carries out its assignment satisfactorily, an Appeal Court shall be left
with no option than to affirm such a decision.

To do otherwise will be to institutionalize what the appellate court is complaining

10 of, that is miscarriage of justice. In this case, the learned trial judge when he held
that considering the peculiar circumstances of the present case, it would seem
that the interest of the Receiver/Manager, the Appellant and the Respondent
Company in receivership are intertwined and cannot be separated, so that the
Appellant ought to have proceeded against any other person(s) whose interests
15 are adverse to those of the Appellant, the Receiver/Manager and the Respondent.
To my mind, the proper parties have not been brought before the court, this therefore
means there is a misjoinder and/or non-joinder of parties.

The question to be considered then is, whether having regard to the conclusion
20 that the proper parties have not been sued by the Appellant, the appropriate order
to make is the order dismissing the Appellant’s suit?

While I agree that the learned trial court rightly held that the proper parties were
not sued by the Appellant, and the Appellant cannot proceed against the Receiver/
25 Manager in the manner it did in the proceedings before the lower court, I do not
however agree that having found that the proper parties were not sued by the
Appellant or receiver manager, the appropriate order to make in the circumstance
is an order of dismissal.

30 For the avoidance of doubt, failure to proceed against a proper party cannot result
in the dismissal of a suit, the appropriate order that ought to be made is one of
striking out the suit. The law is well settled, as rightly argued by the learned
Counsel for the Appellant that, non- joinder or misjoinder of parties will at best
result in an order striking out the suit so as to enable the Plaintiff relist same and
35 commence against the proper party. See: Awoniyi & Ors v. The Registered Trustees
of the Rosicrucian Order (2000) LPELR - 655 (SC); Hyson (Nigeria) Limited v.
Augustina N. Ijeoma & Ors (2008) LPELR - 5159 (CA). In the instant case, the
learned trial judge aptly observed that the merit of the case has not been considered,
this ought to have agitated his mind as to the proper order to make in the
40 circumstances, to say that failure to sue the proper party amounts to an abuse of
court is in my view not the correct position of the law, the conclusion reached by
the learned trial Judge is not in accord with the well settled position of the law. In
Ayoola v. Baruwa & Ors (1999) 11 NWLR (Pt. 628) 595 AT 615, it was held that,
where proper parties are not brought before the Court as laid down in our
45 jurisprudence there is lack of jurisdiction and locus standi as the action will be

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incompetent. It is plain from the records of the Court below that proper parties
were not sued, it clearly therefore follows that the lower Court lacked jurisdiction,
and the suit must be billed for striking out. The lower Court was therefore in grave
error when it dismissed the suit of the Appellant in place of making an order for
5 striking out.

In the result, the appellant’s appeal succeeds in part. The Ruling of Faji, J., of the
Federal High Court, Lagos Division delivered on 22nd of June, 2018, wherein he
dismissed the suit is set aside, the order of dismissal of the suit is therefore
10 substituted. Suit No FHC/L/CS/1242/2017 is instead struck out.

There is no order as to cost.

OGAKWU, JCA: I was privileged to have read in draft the leading judgment of my
15 learned brother, Tijjani Abubakar, JCA, which has just been delivered.

Having also read the Records of Appeal and briefs of argument filed and exchanged
by the parties, I find that the manner of resolution of the Respondent’s preliminary
objection and the substantive issues in the appeal are in accord with my views.
20
Accordingly, it is for the same reasons elaborately enunciated in the leading
judgment that I equally allow the appeal in part and on the same terms as contained
in the leading judgment.

25 I abide by the order as to costs.

TOBI, JCA: I had the privilege of reading in draft the judgment just delivered by my
learned brother, TIIJANI ABUBAKAR, JCA. I agree with the judgment and I have
nothing to add.
30
Cases cited in the Judgment
Adesina v. Adeniran (2006) 18 NWLR (Pt. 1011) 359
Agbareh v. NIMRA (2008) 2 NWLR (Pt. 1071) 378
Agwasim v. Ojichie (2004) 10 NWLR (Pt. 882) 613
35 Arewa v. Olanrewaju (2007) LPELR - 8789 (CA)
Arubo v. Aiyeleri (1993) 3 NWLR (Pt. 280) 126
Awoniyi & Ors v. The Registered Trustees of the Rosicrucian Order (2000) LPELR
- 655 (SC)
Ayoola v. Baruwa & Ors (1999) 11 NWLR (Pt. 628) 595
40 Babatunde Harding & Anor v. Administrator General and Public Trustee of Lagos
State & Anor (2016) LPELR - 40990 (CA)
Bank of Industry Limited v. Awojugbagbe Light Industries Limited (2018) LPELR
- 43812 (SC)
Central Bank of Nigeria v. Saidu H. Ahmed & Ors (2001) 5 SC (Pt. 11) 146
45 Compagnie Generale De Geo Physique (Niglt) CGG Nig Ltd v. Moses Aminu (2016)

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WRN 35
Coscharis Motors Limited v. Capital Oil & Gas Ltd (2016) Vol. 25 WRN 138
Dagazzau v. Bokir Int’l Ltd (2011) 14 NWLR (Pt. 1267) 261
Din v. Attorney General of the Federation (1986) 1 NWLR (Pt. 17) 417
5 Dingyadi v. INEC (2001) 44 NSCQR 301
Edgerode v. Ikine (2001) SC (Pt. 11) 94
EFCC v. Ayodele Fayose & Anor (2018) LPELR 44 131
Ehuwa v. O.S.I.E.C. (2006) 10 NWLR (Pt. 1012) 544
Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) 340
10 Eyo & Ors v. Okpa & Anor (2010) 6 NWLR (Pt. 1191) 611
Hyson (Nigeria) Limited v. Augustina N. Ijeoma & Ors (2008) LPELR - 5159 (CA)
Intercontractors v. National Provident Fund Management Board (1998) 2 NWLR
(Pt. 76) 280
JFS Investment Ltd v. Brawal Line Ltd & 2 Ors (2010) 4 CLRN 1
15 Mr. Ibibiama Odom & Ors v. PDP & Ors (2015) LPELR - 24351 (SC)
Mufutau Olayiwola & 4 Ors v. FRN (2006) 8 WRN 109
Odu’a Inv. Co. Ltd v. Talabi (1991)1 NWLR (Pt 170) 761
Ogbolosingba & Anor v. Bayelsa State Independent Electoral Commission (2016)
2 WRN 35
20 Ogunbadejo v. Owoyemi (1993) LPELR - 2321 (SC)
Oheakilam v. Nwamara (2003) 12 NWLR (Pt. 835) 614
Olagunju & Anor v. PHCN Plc (2011) LPELR - 2556 (SC)
Onafowokan v. Wema Bank (2011) Vol 48 WRN 1
Osun State Independent National Electoral Commission & Anor v. NCP (2013) 9
25 NWLR (Pt. 1360) 451
Pate & Ors v. Odeyemi (2015) LPELR - 40755 (CA)
Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156
Sogbamu v. Odunaiya (2013) All FWLR (Pt. 700) 1247
The Minister of Petroleum & Mineral Resources & Anor v. Expo-Shipping Line
30 (Nigeria) Ltd (2010) LPELR - 3189 (SC)
Uma & Ors v. Effiom & Ors (2013) LPELR - 21407 (CA)
Unibiz (Nig.) Ltd v. Commercial Bank Credit Ltd (2003) 6 NWLR (Pt 816) 402
Veepee Ind. Ltd v. Cocoa Ind. Ltd (2008) 4 - 5 SC (Pt. 1) 116
Williams & Anor v. Adebayo & Ors (2012) LPELR - 7940 (CA)
35
Statutes cited in the Judgment
Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria 1999
Sections 11, 388, 389, 390, 391 and 393(3) and (4) of the Companies and Allied
Matters Act 1990
40
Rules of Court cited in the Judgment
Order 9 Rule 6 of the Federal High Court Civil Procedure Rules 2009

History:
45

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HIGH COURT
Federal High Court (Lagos Division)
Faji, J

5 COURT OF APPEAL (Lagos Division)

Tijjani Abubakar, JCA (Presided & Read the lead Judgment)
Ugochukwu Anthony Ogakwu, JCA
Ebiowei Tobi, JCA

10 Counsel:
Ejeta Otuoniyo for the Appellant
Oyetola Oshobi SAN with C. Adigun and A.Opara for the Respondents

15

20

25

30

35

40

45

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GPAY INSTANT SOLUTIONS LIMITED v. MRS. JULIE IDAHOSA; PORT

HARCOURT ELECTRICITY DISTRIBUTION COMPANY

NATIONAL INDUSTRIAL COURT

5 (PORT HARCOURT DIVISION)
THURSDAY JUNE 20TH, 2019
SUIT NO: NICN/PHC/119/2018

(F. I. KOLA-OLALERE, J)
10
JURISDICTION – Contract for Service – The National Industrial Court does not
have jurisdiction to hear and determine a claim bordering on contract for service
and consequently have no powers to grant injunctions on such claim.

15 PARTIES – Necessary Party – is a person whose presence is required in order to

properly resolve a dispute.

LITIGATION – Jurisdiction – is fundamental and once raised, must be determined

at the earliest stage of proceedings because no matter how well conducted, court
20 proceedings without jurisdiction are a nullity.

LITIGATION – Jurisdiction – is determined by the claim.

LITIGATION – Abuse of Court Process – is the deliberate and improper use of the
25 rules, practice and procedure of the court in order to subvert the course of justice.

Facts:

The 1st defendant is a former employee of the claimant. The claimant filed a suit
30 against her and the 2nd defendant at the National Industrial Court, Port Harcourt
Division. The claim against the 1st defendant centred around certain clauses of the
contract of employment between the parties bordering on confidentiality, non-
solicitation and non-recruitment. The claimant sought the court’s declarations
that those clauses are still valid and binding on the 1st defendant and that she was
35 in breach of those clauses by soliciting the 2nd defendant. The claimant also sought
orders of the court to restrain the 1st defendant from disclosing its confidential,
proprietary and trade secrets to the 2nd defendant, from soliciting its client in
whatever form, from advising or providing information belonging to the claimant to
the 2nd defendant or any other client or third parties and an order to bar the 1st
40 defendant from recruiting any of its staff. Furthermore, the claimant sought an
order to restrain the 2nd defendant from dealing with the 1st defendant in any manner
whatsoever concerning cash collection.

The claimant was a cash collecting agent of the 2nd defendant and an agreement
45 was executed between the parties before the 1st defendant left the employment of

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the claimant. Part of the reliefs sought against the 2nd defendant is that it should
not engage with the 1st defendant in any business relating to cash collection. The
1st defendant entered appearance and filed her defence. The 2nd defendant also
filed its defence and a preliminary objection. The issues raised in the objection
5 border on jurisdiction and an allegation of abuse of court process. On the issue of
jurisdiction, the 2nd defendant argued that the court lacks jurisdiction to adjudicate
between the claimant and the 2nd defendant on the ground that the issue involving
the parties is one of contract for service in which the 2nd defendant contracted the
claimant for cash collection and that its joinder in the suit was an abuse of court
10 process. The claimant filed a counter affidavit.

After hearing the parties on the application, the court ruled in favour of the 2nd
defendant holding that it was not a necessary party in the suit.

15 Held (Allowing the application of the 2nd defendant):

[1] Jurisdiction – Contract for Service – The National Industrial Court

does not have jurisdiction to hear and determine a claim bordering
on contract for service and consequently have no powers to grant
20 injunctions on such claim.

In essence; therefore, the contract between the claimant and the 2nd
defendant is the contract for service as opposed to contract of service or
contract of employment that this Court has jurisdiction to handle by virtue
25 of the provisions of section 254C (1) of the Constitution of the FRN, 1999
(As Amended). Conversely, I find that this Court does not have jurisdiction
to adjudicate on this contract for service between the claimant and the 2nd
defendant termed “the Agreement” and I so hold. Therefore, I further hold
that this Court does not have jurisdiction to interpret “the Agreement” in
30 question between the claimant and the 2nd defendant in this case. I again
hold that this Court has no power to make any order of perpetual injunction
against the 2nd defendant under the said agreement as claimed in reliefs
vii & viii; endorsed on the claimant’s complaint. Additionally, I hold that
there is no employment relationship between the claimant and the 2nd
35 defendant so as to make the 2nd defendant a proper party in this case and
before this Court. (P. 166 lines 13 - 29)

[2] Parties – Necessary Party – is a person whose presence is required in

order to properly resolve a dispute.
40
In the same vein, it is my finding and holding that the 2nd defendant is not
a necessary party in this case as contemplated by law because, the
case between the claimant and the 1st defendant can be fairly dealt with
and the question therein properly settled in its absence; just like the
45 other staff of the claimant that the 1st defendant is alleged to be recruiting,

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see the case of O.K Contact Point Ltd. v. Progress Bank (1999) 5 NWLR
(Pt. 604) 631 CA at page 634 para A-B. (P. 167 lines 8 - 14)

[3] Litigation – Jurisdiction – is fundamental and once raised, must be

5 determined at the earliest stage of proceedings because no matter
how well conducted, court proceedings without jurisdiction are a
nullity.

The law is that, Jurisdiction of a Court on a matter is a very fundamental

10 issue. As a threshold issue, it should be determined at the earliest stage
of the proceedings as soon as it is raised. This is because, if a Court has
no jurisdiction to hear and determine a case, its proceedings on that
case remain a nullity ab initio, no matter how well conducted and decided.
The reason being that, a defect in competence is not only intrinsic but
15 extrinsic to the entire process of adjudication; see the cases of Anyanwu
v. Ogunewe (2014) 8 NWLR (Pt. 1410) SC 437 at 476 paragraph G-H;
UBA. Plc. v. JM & Co., (Nig.) Ltd. (2016) 5 NWLR (Pt. 1504) 171 at 180
paragraph A and Effiong & Ors v. Ebong (2015) 63 NLLR (Pt. 223) 310 at
340, Per Okri JCA. (P. 165 lines 10 - 19)
20
[4] Litigation – Jurisdiction – is determined by the claim.

As the Supreme Court puts it in the case of Gabriel Ativie v. Kabelmetal

(Nig.) Ltd (2008) LPELR-591 (SC); (2008) 10 NWLR (Pt. 1095) 399; (2008)
25 5 - 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed. In
other words, the Court’s jurisdiction is determined from the claimant’s
reliefs. (P. 165 lines 19 - 22)

[5] Litigation – Abuse of Court Process – is the deliberate and improper

30 use of the rules, practice and procedure of the court in order to subvert
the course of justice.

Abuse of Court process has many definitions; therefore, the peculiarities

of the circumstances in a particular case would determine whether the
35 Court process has been abused or not. However, a common feature of all
the existing definitions is that the term or phrase ‘abuse of court process’
applies to proceedings, which are wanting in bona fide. Such cases are
frivolous, vexatious and they involve improper use of the rules of practice
and procedures of the Court with intent to harass or embarrass, intimidate,
40 irritate and or annoy a party. This involves some deliberateness on the
part of the claimant to misuse or pervert the smooth orderly and expeditious
hearing and determination of matters as provided in the rules of court. It
also involves instituting multiplicity of actions, on a frolic act of forum
shopping, i.e. seeking for a favourable court to entertain a matter. See its
45 definition by the Supreme Court in Allanah & Ors v. Kpolokwu & Ors

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(2016) LPELR- 40724(SC); Dingyadi v. INEC (2001) 44 NSCQR 301 at

340; Chief Charlie Amachree v. Chief (Prof) TJ Princewill & Ors (2007)
LPELR-CA/PH/182/2004; (2008) 12 NWLR (Pt. 1098) Pg. 345. See also
Ikine v. Edjerode (2001) 12 SC (Pt. 11) 94; CBN v. Ahmed (2001) 5 SC
5 (Pt. 11) 146; Ode v. Balogun (1999) 10 NWLR (Pt. 622) 214 and Amaefuna
v. The State (1988) 2 NWLR (Pt.775) 156.
(P. 166 lines 33 - 45; P. 167 lines 1 - 4)

RULING (Delivered by KOLA-OLALERE, J): 1. On October 22, 2018 the

10 claimant sued the defendants for the following reliefs:

i. A Declaration that Clause 11 (a) on Confidentiality, Clause 11(b)

on Non­Solicitation Agreement and Clause 11(c) on Non-Recruit
Agreement as stated in the Contract of Employment between
15 the Claimant and 1st Defendant dated 22 May 2017 are still valid
and binding on the 1st Defendant.

ii. A Declaration that the actions of the 1st Defendant including directly
or indirectly, soliciting in any manner whatsoever the 2nd Defendant
20 constitutes a breach of Clause 11 (b) on Non-Solicitation
Agreement and/or Clause 11(c) on Non-Recruit Agreement of the
Contract of Employment between the Claimant and 1st Defendant
dated 22 May 2017.

25 iii. A Declaration that the actions of the 1st Defendant including directly
or indirectly advising, recruiting and/or disclosing confidential and
proprietary information as well as trade secrets of the Claimant
to the 2nd Defendant constitutes a breach of Clause 11(b) on Non-
Solicitation Agreement and/or Clause 11(c) on Non-Recruit
30 Agreement of the Contract of Employment between the Claimant
and 1st Defendant dated 22 May 2017.

iv. An Order of Perpetual Injunction restraining the 1st Defendant from

directly or indirectly soliciting the Clients of the claimant in any
35 manner whatsoever, including the 2nd Defendant.

v. An Order of Perpetual Injunction restraining the 1st Defendant from

advising and/or providing information of the Claimant (whether of
a confidential or proprietary nature or not) to any Customer or
40 Client of the Claimant including the 2nd Defendant.

vi. An Order of perpetual Injunction restraining the 1st Defendant from

directly or indirectly recruiting any staff of the Claimant.

45 vii. An Order of perpetual Injunction restraining the 2nd Defendant, its

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officers, agents, employees or any other person natural or artificial

whomsoever claiming or acting through the 2nd Defendant from
discussing, dealing, talking, meeting, liaising conversing with the
1st Defendant especially as it relates to the business between
5 the Claimant and the 2 nd Defendant as covered by the
AGREEMENT.

viii. An Order of perpetual Injunction restraining the 2nd Defendant, its

officers, agents, employees or any other person natural or artificial
10 whomsoever claiming or acting through the 2nd Defendant from
giving the 1st Defendant the cash collection business as covered
by the AGREEMENT.

The claimant also filed all other initiating processes together with this complaint
15 in line with the Rules of this Court. In response, the defendants entered appearance
and filed their defence processes in line with the Rules of this Court. On December
3, 2018 counsel to the 2nd defendant filed a notice of Preliminary Objection brought
pursuant to Order 17 & Order 18 of the National Industrial Court of Nigeria (Civil
Procedure) Rules, 2017 and Sections 254C & 272(1) of the Constitution of the
20 Federal Republic of Nigeria, 1999 as amended, praying for the following orders:

i. An Order of this Honourable Court striking out this suit, as against

the 2nd Defendant/Applicant for want of jurisdiction.

25 ii. An Order of this Honourable Court dismissing this suit, with costs
in favour of the 2nd Defendant/Applicant, for being an abuse of
court process.

The notice of Preliminary Objection is based on seven (7) grounds and it is supported
30 with a 5 paragraphed affidavit, deposed to by one Ademide Ademola, a legal
Practitioner in the law firm of Ukiri & Lijadu. The notice is also supported with a
written address wherein counsel to the 2nd defendant formulated the issue for
determination as:

35 Whether this Honourable Court ought to grant this application as

prayed.

Arguing the said issue, counsel submitted that it is the law that before the Court
can hear or determine any matter, the Court must have the required jurisdiction to
40 handle same. He went on that jurisdiction is determined by the nature of a claimant’s
claim, referring the Court to the cases of Madukolu v. Nkemdilim (1962) 2 SCNLR
341; Nwankwo v. Yar’adua (2010) 12 NWLR (Pt. 1209) p. 518, at pg. 560, paragraphs
E-H; Skenconsult v. Ukey (1981) 1 SC pg. 6; Matthew Ikpekpe v. Warri Refinery
& Petrochemical Company Limited & Anor. (2018) LPELR-44471 (SC); Adeyemi
45 v. Opeyori (1976) 10 NSCC PASS at 462 line 41 and Attorney-General of Kwara

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State v. Olawale (1993) 3 NWLR (Pt. 281) pg. 253 at 262 paragraph A.

Counsel submitted that by the statement of facts and the reliefs sought by the
claimant in this case, the claimant merely seeks to indirectly enforce the terms of
5 its payment collection services Agreement with the 2nd Defendant as opposed to
the Contract of Employment with the 1st Defendant, which had been terminated
over a year ago as pleaded in its processes before the Court. Counsel further
submitted that the claims against the 2nd Defendant cannot be maintained before
this Court, considering the provisions of sections 254C & 272 of the Constitution
10 of the Federal Republic of Nigeria 1999 as Amended. Counsel went on that by the
provisions of the said Constitution, the subject matter of this suit against the 2nd
Defendant/Applicant is firmly reserved for the High Court of a State and not this
Court; citing Gafar v. Govt. of Kwara State (2007) 4 NWLR (Pt.1024) 375 & Elebanjo
v. Dawodu (2006) 15 NWLR (Pt. 1001) pg. 76.
15
Counsel continued that once the Court determines that it has no jurisdiction on
this suit, it need not proceed further to consider any other issue in the case since
the Court no longer has power to do so. He submitted that the proper course of
action is to strike out the suit, citing Umannah v. Obong Victor Attah (2006) 17
20 NWLR (Pt. 1009) page 503 at 525 paragraphs D-F and Fasakin Foods Nig. Ltd v.
Martins Babatunde Shosanya (2006) 10 NWLR (Pt.987) 126.

In addition, counsel submitted that the manner of suing the 2nd Defendant/Applicant
in this case clearly is an abuse of Court process. He went on that the improper
25 steps taken by the Claimant in this suit constitute a gross abuse of process
deserving of a dismissal of this matter in limine and afortiori, a grant of the present
application as prayed; citing TSA Industries Ltd. v. FBN Plc. (No.1) (2012) 124
NWLR (Pt. 1320) page 345 A-C and Messrs N. V. Scheep & Anor v. The MV Araz
& Anor (2016) 15 NWLR (Pt. 1691) 622 page 644 paragraph A-D.
30
Responding to this application, counsel to the claimant filed a 6 paragraphed
counter affidavit deposed to by one Osaze Jesuorobo together with a written address
wherein counsel formulated issues for determination as:

35 a. Whether based on the facts disclosed and the claims stated in

the Claimant/Respondent’s Originating Processes dated 22
October, 2018 this Honourable Court has jurisdiction to adjudicate
this Suit.

40 b. Whether the Originating Processes dated 22 October, 2018 is an

abuse of Court process.

Arguing issue one, counsel submitted that by the provisions of section 254C of
the Constitution of the FRN, 1999 (As Amended), the National Industrial Court has
45 exclusive jurisdiction over civil causes and matters relating to or connected with

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any employment matter and matters incidental thereto or connected with, citing
the case of African Newspapers (Nig.) Ltd. v. FRN (1985) 2 NWLR (Pt. 6) 137 at
159 - 160; Kanu v. Asuzu & Anor (2015) LPELR-24376(CA) and NLNG Ltd. v.
Green & Ors. (2009) LPELR- 4600(CA) pgs. 16 - 17 Paragraphs B - A and NDIC v.
5 Odigie (2012) LPELR-9289 (CA).

Counsel submitted that it is the combination of facts and the claims as stated in
the Claimant/Respondent’s Originating Processes of October 22, 2018 that the
Court must review and consider to see if the matters canvassed therein are matters
10 relating to, connected with or incidental thereto employment. He went on that the
2nd Defendant/Applicant admitted that this Court has jurisdiction as it relates to
the 1st Defendant/Respondent as clearly stated in paragraphs 3.18 of its Written
Address of December 3, 2018. To counsel, the averments in paragraphs 1 to 10 of
the claimant’s statement of facts are matters “relating to” or “connected with” the
15 employment of the 1st Defendant/Respondent and matters “incidental thereto” or
“connected with”. He submitted that a cumulative reading of the reliefs sought
particularly against the 2nd Defendant/Applicant reveal that they are matters “relating
to”, “connected with” or “incidental thereto” the employment of the 1st Defendant/
Respondent. He maintained that the injunctions sought are simply an enforcement
20 of the rights of the Claimant/Respondent under the 1st Defendant/Respondent’s
contract of employment.

Furthermore, counsel submitted that the 2nd Defendant/Applicant is a necessary

party and that this suit cannot be decided without it being a party to it. He continued
25 that the 2nd Defendant/Applicant has a very cogent question to answer in this suit
with respect to establishing the allegation of solicitation and divulging of confidential
information on the part of the 1st Defendant/Respondent, which would bring about
the conclusive adjudication of this suit; citing Green v. Green (1987) 2 N.S.C.C. at
page 1115 at 1123; Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) page 65 at 89
30 paragraph B. Finally on this issue, counsel submitted that this Court does not
have the power to strike out this suit since the mere allegation is that it should
have been instituted at the High Court, but to transfer the case to the appropriate
Court, relying on Section 24 (2) of the National Industrial Court Act, 2006.

35 Arguing issue 2, counsel submitted that while abuse of court process “involves
circumstances and situations of infinite variety, this Suit is by no stretch of
imagination an abuse of court process, citing CBN v. Ahmed & Ors (2001) LPELR-
837(SC) at page 62-63; Abubakar v. Bebeji Oil and Allied Products Ltd & Ors
(2007) LPELR-55(SC) at page 62 - 63 Paragraphs E - D and urged the Court to so
40 hold.

COURT’S DECISION

I have gone through the facts of this case as endorsed on the complaint and as
45 pleaded in the statement of facts. I have also read the issues as raised in the

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preliminary objection and its counter; from all of this, I am of the considered view
that the questions to resolve in this preliminary objection are as follows:

i. Whether or not the Court can strike out this suit against the 2nd
5 Defendant/Applicant for want of jurisdiction.

ii. Whether or not the Originating Processes is an abuse of Court

process.

10 The law is that, Jurisdiction of a Court on a matter is a very fundamental issue. As

a threshold issue, it should be determined at the earliest stage of the proceedings
as soon as it is raised. This is because, if a Court has no jurisdiction to hear and
determine a case, its proceedings on that case remain a nullity ab initio, no
matter how well conducted and decided. The reason being that, a defect in
15 competence is not only intrinsic but extrinsic to the entire process of adjudication;
see the cases of Anyanwu v. Ogunewe (2014) 8 NWLR (Pt. 1410) SC 437 at 476
paragraph G-H; UBA. Plc. v. JM & Co., (Nig.) Ltd. (2016) 5 NWLR (Pt. 1504) 171
at 180 paragraph A and Effiong & Ors v. Ebong (2015) 63 NLLR (Pt. 223) 310 at
340, Per Okri JCA. As the Supreme Court puts it in the case of Gabriel Ativie v.
20 Kabelmetal (Nig.) Ltd (2008) LPELR-591 (SC); (2008) 10 NWLR (Pt. 1095) 399;
(2008) 5 - 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed. In other
words, the Court’s jurisdiction is determined from the claimant’s reliefs.

On whether this Court has jurisdiction on the claimant’s case against

25 the 2nd defendant

As endorsed in paragraphs vii & viii of the complaint and as pleaded by

the claimant in paragraphs 29 g. & h. of the statement of facts; the claimant
is seeking against the 2nd defendant:
30
vii. An Order of perpetual Injunction restraining the 2nd Defendant, its
officers, agents, employees or any other person natural or artificial
whomsoever claiming or acting through the 2nd Defendant from
discussing, dealing, talking, meeting, liaising and conversing with
35 the 1st Defendant especially as it relates to the business between
the Claimant and the 2 nd Defendant as covered by ‘the
AGREEMENT’.

viii. An Order of perpetual Injunction restraining the 2nd Defendant, its

40 officers, agents, employees or any other person natural or artificial
whomsoever claiming or acting through the 2nd Defendant from
giving the 1st Defendant the cash collection business as covered
by ‘the AGREEMENT’.

45 In paragraph 18 of the Statement of Facts, the claimant pleaded concerning the

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Agreement between it and the 2nd defendant this way:

The Claimant avers that while the 1st Defendant was in the employ of the Claimant;
the Claimant finalized a contract with the 2nd Defendant. Thus, via the Agreement
5 between the Claimant and the 2nd Defendant executed on 14 August, 2015 (“the
AGREEMENT”), the 2nd Defendant outsourced its collection services including
cash offices & services in Rivers State, Bayelsa State, Akwa-Ibom State and
Cross River State (for 7 years from the date of execution) to the Claimant. Pursuant
to the terms of the said Agreement, the Claimant undertook the operations of all
10 the 2nd Defendant’s cash offices and performed bill payment collection services for
the 2nd Defendant.

In essence; therefore, the contract between the claimant and the 2nd defendant is
the contract for service as opposed to contract of service or contract of employment
15 that this Court has jurisdiction to handle by virtue of the provisions of section 254C
(1) of the Constitution of the FRN, 1999 (As Amended). Conversely, I find that this
Court does not have jurisdiction to adjudicate on this contract for service between
the claimant and the 2nd defendant termed “the Agreement” and I so hold. Therefore,
I further hold that this Court does not have jurisdiction to interpret “the Agreement”
20 in question between the claimant and the 2nd defendant in this case. I again hold
that this Court has no power to make any order of perpetual injunction against the
2nd defendant under the said agreement as claimed in reliefs vii & viii; endorsed on
the claimant’s complaint. Additionally, I hold that there is no employment
relationship between the claimant and the 2nd defendant so as to make the 2nd
25 defendant a proper party in this case and before this Court. Consequently, the vii
& viii reliefs of the claimant against the 2nd defendant are accordingly struck out for
lack of jurisdiction. Likewise, the name of the 2nd defendant, Port Harcourt Electricity
Distribution Company is struck out as a party in this case for absence of enforceable
cause of action against it from the claimant before this Court.
30
On whether the Originating Processes are abuse of Court process

Abuse of Court process has many definitions; therefore, the peculiarities of the
circumstances in a particular case would determine whether the Court process
35 has been abused or not. However, a common feature of all the existing definitions
is that the term or phrase ‘abuse of court process’ applies to proceedings, which
are wanting in bona fide. Such cases are frivolous, vexatious and they involve
improper use of the rules of practice and procedures of the Court with intent to
harass or embarrass, intimidate, irritate and or annoy a party. This involves some
40 deliberateness on the part of the claimant to misuse or pervert the smooth orderly
and expeditious hearing and determination of matters as provided in the rules of
court. It also involves instituting multiplicity of actions, on a frolic act of forum
shopping, i.e. seeking for a favourable court to entertain a matter. See its definition
by the Supreme Court in Allanah & Ors v. Kpolokwu & Ors (2016) LPELR-
45 40724(SC); Dingyadi v. INEC (2001) 44 NSCQR 301 at 340; Chief Charlie Amachree

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v. Chief (Prof) TJ Princewill & Ors (2007) LPELR-CA/PH/182/2004; (2008) 12

NWLR (Pt. 1098) Pg. 345. See also Ikine v. Edjerode (2001) 12 SC (Pt. 11) 94;
CBN v. Ahmed (2001) 5 SC (Pt. 11) 146; Ode v. Balogun (1999) 10 NWLR (Pt.
622) 214 and Amaefuna v. The State (1988) 2 NWLR (Pt.775) 156.
5
It is worthy of note that from the 5 paragraphed affidavit in support of this notice of
preliminary objection, the 2nd defendant did not show any evidence to buttress its
assertion that this case is an abuse of Court process. In the same vein, it is my
finding and holding that the 2nd defendant is not a necessary party in this case as
10 contemplated by law because, the case between the claimant and the 1st defendant
can be fairly dealt with and the question therein properly settled in its absence;
just like the other staff of the claimant that the 1st defendant is alleged to be
recruiting, see the case of O.K Contact Point Ltd. v. Progress Bank (1999) 5
NWLR (Pt. 604) 631 CA at page 634 para A-B. In the circumstance, I hold that the
15 filing of this case is not an abuse of Court process; neither is the 2nd defendant a
necessary party to this case. This 2nd prayer on the Preliminary Objection fails for
lack of proof and it is accordingly dismissed. Ruling is entered accordingly. The
claimant is to pay N60,000.00 cost to the 2nd defendant.

20 Cases cited in the Judgment

Abubakar v. Bebeji Oil and Allied Products Ltd & Ors (2007) LPELR-55(SC)
Adeyemi v. Opeyori (1976) 10 NSCC PASS 462
African Newspapers (Nig.) Ltd. v. FRN (1985) 2 NWLR (Pt. 6) 137
Allanah & Ors v. Kpolokwu & Ors (2016) LPELR- 40724(SC)
25 Anyanwu v. Ogunewe (2014) 8 NWLR (Pt. 1410) SC 437
Attorney-General of Kwara State v. Olawale (1993) 3 NWLR (Pt. 281) 253
CBN v. Ahmed & Ors (2001) LPELR-837(SC)
Chief Charlie Amachree v. Chief (Prof) TJ Princewill & Ors (2007) LPELR-CA/PH/
182/2004; (2008) 12 NWLR (Pt. 1098) 345
30 Dingyadi v. INEC (2001) 44 NSCQR 301
Effiong & Ors v. Ebong (2015) 63 NLLR (Pt. 223) 310
Elebanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76
Fasakin Foods Nig. Ltd v. Martins Babatunde Shosanya (2006) 10 NWLR (Pt.987)
126
35 Gabriel Ativie v. Kabelmetal (Nig.) Ltd (2008) LPELR-591 (SC); (2008) 10 NWLR
(Pt. 1095) 399; (2008) 5 - 6 SC (Pt. II) 47
Gafar v. Govt. of Kwara State (2007) 4 NWLR (Pt.1024) 375
Green v. Green (1987) 2 N.S.C.C. 1115
Kanu v. Asuzu & Anor (2015) LPELR-24376(CA)
40 Madukolu v. Nkemdilim (1962) 2 SCNLR 341
Matthew Ikpekpe v. Warri Refinery & Petrochemical Company Limited & Anor.
(2018) LPELR-44471 (SC)
Messrs N.V. Scheep & Anor v. The MV Araz & Anor (2016) 15 NWLR (Pt. 1691)
622
45 NDIC v. Odigie (2012) LPELR-9289 (CA)

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NLNG Ltd. v. Green & Ors. (2009) LPELR-4600(CA)

Nwankwo v. Yar’adua (2010) 12 NWLR (Pt. 1209) 518
Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65
Skenconsult v. Ukey (1981) 1 SC 6
5 TSA Industries Ltd. v. FBN Plc. (2012) 124 NWLR (Pt. 1320) 345 A-C
UBA. Plc. v. JM & Co., (Nig.) Ltd. (2016) 5 NWLR (Pt. 1504) 171
Umannah v. Obong Victor Attah (2006) 17 NWLR (Pt. 1009) 503
Ikine v. Edjerode (2001) 12 SC (Pt. 11) 94
CBN v. Ahmed (2001) 5 SC (Pt. 11) 146
10 Ode v. Balogun (1999) 10 NWLR (Pt. 622) 214
Amaefuna v. The State (1988) 2 NWLR (Pt.775) 156
O.K Contact Point Ltd. v. Progress Bank (1999) 5 NWLR (Pt. 604) 631

Statutes cited in the Judgment

15 Sections 254C (1) & 272(1) of the Constitution of the Federal Republic of Nigeria
1999
Section 24 (2) of the National Industrial Court Act 2006

Rules of Court cited in the Judgment

20 Orders 17 & 18 of the National Industrial Court of Nigeria (Civil Procedure) Rules
2017

History:

25 NATIONAL INDUSTRIAL COURT OF NIGERIA (Port Harcourt Division)

Kola-Olalere, J

Counsel:
Mr. O. Wali (SAN) with A.A. William-Chukwu (Miss) for the Claimant/Respondent.
30 A.S. Akomas for the 1st Defendant.
Harry Ukaejiofor for the 2nd Defendant/Applicant.

35

40

45

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