SIMEON NEBEIFE OBIDIKE VS THE STATE

LEGALPEDIA CITATION: LER [2014] SC. 395/2002

AREAS OF LAW:
CRIMINAL LAW- MURDER, LAW OF EVIDENCE- ASCRIPTION OF PROBATIVE VALUE TO EVIDENCE OF WITNESS

SUMMARY OF FACTS:
The Appellant and six other accused persons were arrested and charge at the High Court for murder contrary to section 274 (1) of the Criminal Code Cap. 36 Vol. 1, Laws of Anambra State of Nigeria 1986. The Appellant was the 4th accused. The trial court convicted and sentenced to death by hanging the Appellant and five of his co-accused while the 7th accused was given the benefit of the doubt on his defence of alibi and was accordingly discharged and acquitted. The Appellant being dissatisfied with the decision of the trial court, appealed to the Court of appeal which dismissed and affirmed the conviction and sentence imposed by the trial court. The Appellant has further appealed to this court.
HELD
Appeal Dismissed
ISSUES FOR DETERMINATION
Whether the prosecution proved it case beyond reasonable doubt, upon the community reading of section 132,135, 136 140 of the Evidence Act Law of the Federation of Nigeria 2011
Whether the court below was right in affirming the conviction of the appellant based on the evidence of the single eye witness; the P.w. 5
Whether the appellant can raise the issue of alibi without leave when the issue was abandoned at the trial court and was neither raised nor considered at the court below

RATIOS
APPELLATE COURT-WHETHER CAN SUBSTITUTE ITS VIEWS OF FACT FOR THOSE OF THE TRIAL COURT
“It is now settled that an appellant court should not ordinarily substitute its own views of fact for those of the trial court.” PER FABIYI JSC
FINDINGS OF FACT BY A TRIAL COURT-WHEN AN APPELLATE COURT WILL INTERFERE THEREWITH
“An appellate court will not interfere with findings of fact by a trial court except where wrongly applied to the circumstances of the case or the conclusion reached was perverse.”PER FABIYI JSC

ASCRIPTION OF PROBATIVE VALUE TO EVIDENCE OF WITNESSES-DUTY OF THE TRIAL COURT
“Certainly, ascription of probative value to the evidence of witnesses is pre-eminently the business of the trial court which saw and heard the witnesses, more especially, where the issue turns on the credibility of witnesses.” PER FABIYI JSC
CONCURRENT FINDINGS OF FACT-WHEN AN APPELLATE COURT CAN DISTURB SAME
“It is now well settled that in such a situation, as herein, this court will not ordinarily disturb such concurrent findings unless same is shown to be perverse or there is an error in procedure or substantive law which has occasioned miscarriage of justice.” PER FABIYI JSC
ADDRESSES- NATURE OF-WHETHER CAN SUBSTITUTE EVIDENCE
“Addresses are designed to assist the court. No amount of brilliance in a fine speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue. There is no need to make submission against the flow of evidence in a bid to procure underserved attention.” PER FABIYI JSC
WITNESSES- WHETHER THE DEFENSE IS PRECLUDED FROM CALLING ANY WITNESS
“The defence is not in any way prevented from calling any witness he desired in disproof of the threat on the life of the deceased. The appellant chose not to call any other witness on this point. The appellant has no right to dictate to the prosecution the witnesses to call or not to call”. PER FABIYI JSC
EVIDENCE OF A RELATION-WHEN CAN BE ACCEPTED-DUTY OF A COURT THERETO
“There is no law which precludes a blood relation of a deceased person from testifying for the prosecution.Evidence of a relation can be accepted if cogent enough to rule out element of falsehood and bias. What a court must consider as an abiding factor is truthfulness of the witness touching on his integrity, veracity and knowledge of the matter.” PER FABIYI JSC
WITNESSES-EVIDENCE OF A SINGLE WITNESS- WHETHER CAN SUSTAIN A CHARGE IN MURDER
“Evidence of a single witness, as herein, if believed by the court can sustain a charge even in a criminal matter relating to murder”. PER FABIYI JSC
CRIMINAL TRIAL-DUTY OF A PROSECUTION THERETO
“The duty of the prosecution in a criminal trial is to prove its case against the accused persons beyond reasonable doubt. In order to do so it must prove every ingredient of the offence beyond reasonable doubt”. PER KEKERE-EKUN, JSC
OFFENCES-MURDER-WHAT THE PROSECUTION MUST PROVE TO SECURE A CONVICTION THERETO
“To secure a conviction for murder, the prosecution must prove the following:
1. That the deceased died
2. That the death of the deceased resulted from the act of the accused person; and
3. That the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.” PER KEKERE-EKUN, JSC
WITNESSES- EVIDENCE OF A WITNESS WHO IS RELATED TO THE VICTIM OF A CRIME- WHETHER CONSTITUTES SUFFICIENT REASON FOR THE COURT TO DISREGARD HIS EVIDENCE
“The mere fact that a witness is related to the victim of a crime is not a sufficient reason, without more, for the court to disregard his evidence. There must be evidence that the witness has a purpose of his own to serve by giving such testimony. PER KEKERE-EKUN, JSC
CRIMINAL JUSTICE-PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON-DUTY ON THE PROSECUTION THERETO
“Under our system of criminal justice, an accused person is presumed innocent until he is proved guilty. There is therefore no question of an accused proving his innocence before a Law Court. It has to be noted that throughout the duration of a trial an accused person may not utter a word; he is not bound to say anything. The duty is on the prosecution to prove the charge against an accused person beyond reasonable doubt”. PER OKORO JSC

CASE MENTIONED:
Akinfe Vs The State (1988) 8 NWLR (Pt 85)
Alor v The State (1997) 4 NWLR (Pt. 501) 511
Balogun Vs Abboola (1974)1 ALL NLR (Pt 2) 66
Bamigboye Vs University of Ilorin & Ors (1999) 6SC (PT 11) 72
Ebba Vs Ogodo (1984) 1 SCNLR 372
Edwin Ogda Vs The State (1992) 2 NWLR (Pt 222)164 @ 198
Egonu Vs Egonu (1978) 11-12 SC 11
Ime David Idiok V The State (2008) 13 NWLR (Pt. 1104) 225
Kale Vs Coker (1982) 12 SC 252
Motunwase Vs Sorungbe (1988) 5 NWLR (Pt 92) 90
Niger Construction Ltd Vs Okugbeni (1987)3 NWLR (Pt 67)
Nkebisi v The State (2010) 5 NWLR (Pt.1188) 471 @ 497
Nneji Vs Chukwu (1996) 10 NWLR (Pt 378)265
Nwachukwu v The State (2002) FWLR (Pt. 123) 312;
Nweke v The State (2001) FWLR (Pt. 40) 1595
Nwosu Vs Board Of Customs and Excise (1988) 5 NWLR (Pt 93)
Ogbechie Vs Onochie (1998) 1 NWLR (Pt 479 370)
Okei Vs Attorney – General Bendel State (1986) 2 NWLR (Pt 24)648
Olanrewaju Vs Governor Of Oyo State & Ors (1992 )11-12 SCNJ 92
Onah Vs The State (1985) 3 NWLR (Pt 12)236 @ 537
Uwagboe v The State (2008) 12 NWLR (Pt. 1102) 621
Williams V The State (1992) 10 SCNJ 74
Yongo v C.O.P (1992) 8 NWLR (Pt. 257) 36;(1992) 4 SCNJ 113

STATUTES REFERRED TO:
Evidence Act 2011

CENTRAL BANK OF NIGERIA V HYDRO AIR PTY LIMITED

LEGALPEDIA CITATION: LER [2014] CA/L/235/2012
LEGALPEDIA CITATION: LER [2014] CA/L/235A/2012

AREA OF LAW:
RECOVERY OF JUDGEMENT DEBT, CROSS APPEAL, STARE DECISIS
SUMMARY OF FACTS
The Respondent obtained a judgment for the sum of USD 6,000,000:00 ly(Six Million United States Dollars) against the Nigerian Airspace Management Agency, (NAMA); the Nigerian Civil Aviation Authority, (NCAA) and the Attorney General of the Federation by virtue of an alleged compromise agreement. The Respondent thereafter obtained a garnishee order nisi against the Appellant and 12 commercial banks that the Garnishees should show cause why the garnishee nisi should not be made absolute. In response, the Appellant filed a memorandum of appearance and an affidavit to show cause stating that only NAMA had an account with it but had insufficient funds to meet the said judgment debt. Despite its objection, the court made the order absolute and ordered the appellant to pay the judgment sum into the NAMA account. Dissatisfied with this decision, the Appellant has appealed to this court. The Respondent by Notice of Cross Appeal dated 10th May 2012 filed a cross-appeal against the part of the decision of the trial Judge where he found that the Appellant is a public officer by virtue of the decision of the Supreme Court in Ibrahim v. Kaduna State (1998) 14 NWLR (pt.584) 1. Although the cross-appeal was given a different appeal number, that is CA/L/235A/2012
HELD
Appeal allowed, Cross appeal dismissed
ISSUES FOR DETERMINATION
Whether in the circumstances of this case, the trial judge was right to have attached the funds in the custody of the 1st Garnishee even after it found that section 84 of the Sheriffs and Civil Process Act was not complied with, and whether the court was right to have nullified section 84 of the Sheriffs and Civil Processes Act for being in conflict with section 287(3) of the 1999 Constitution
Whether the onus is on the Appellant (Central Bank of Nigeria) to prove that the BASA Account is not in its custody
Whether the trial Judge was right to come to the conclusion that the BASA account is with the Appellant and well funded when no evidence towards this end had been proffered before it.

Whether the 1st Garnishee flouted the orders of the trial court by filing an affidavit to show cause in which (CBN) explained its inability to set aside the judgement sum from the BASA account and file the statement of account.
Whether by a combined reading of section 84(1) (2) & (3) (a) of the Sheriffs and Civil Process Act (Cap S6) Laws of the Federation of Nigeria 2004, the Learned trial Judge was right in holding that the Cross-Respondent bank was a public officer and consequently that the consent of the Attorney-General of the Federation was required to be obtained before the garnishee Order Nisi was made on 18/5/2011 to attach the funds in the account of the 1st Judgement Debtor domiciled in the Cross Respondent Bank

RATIOS
DECISION OF COURT-DUTY OF THE ATTORNEY-GENERAL THERETO
“It is the clear intention of the Constitution that the Attorney-General ensures that judgments of Courts of the land given against the Government and its departments are enforced. Thus by this provision, the Attorney-General has a role to play in seeing that the decisions of courts are obeyed and ensure that the execution of such judgments is not frustrated”. PER IYIZOBA JCA

STARE DECISIS-COURT OF APPEAL-WHEN CAN DEPART FROM ITS PREVIOUS DECISION
“Even this Court is bound by its previous decisions. It can only depart from same in the following circumstances:
(a) Where two decisions of the Court are in conflict and the Court must choose between them;
(b) Where the Court of Appeal comes to a conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court;
(c) Where the Court of Appeal comes to the conclusion that a previous decision was given per incuriam i.e. in ignorance of a statute or other binding authority, the court is not bound by it and
(d) Where the previous decision was decided without jurisdiction “PER IYIZOBA JCA

RULE OF INTERPRETATION-DUTY OF COURT TO GIVE A STATUTE IT’S LITERAL MEANING
“The Court is as usual bound to give the statute it’s literal ordinary meaning.” PER IYIZOBA JCA

CENTRAL BANK OF NIGERIA-COMPOSITION OF
“The Central Bank of Nigeria is an artificial entity and it is the officials of the body that control the money or funds in the coffers of the entity”. PER IYIZOBA JCA

GARNISHEE PROCEEDING-NATURE OF
“Garnishee proceeding is a unique procedure which provides a clear and fair procedure to be followed in resolution of disputed liability”. PER IYIZOBA JCA

CONTEMPT OF COURT-WHEN A PARTY WILL NOT BE HELD TO BE IN CONTEMPT
“It is trite that a party who avails himself of the procedure enacted in a statute of responding to an order of court will not be held to be in contempt”. PER IYIZOBA JCA

CASES MENTIONED
Adelakun v. Adelakun (1993) 7 NWLR (Pt.308) 746 at 762 B-E
Government of Akwa Ibom State v. Powercom Nig Ltd (2004)6 NWLR (Pt. 868) 20
Ibaku v. Ebini (2010) 17 NWLR (Pt.1222) 286 & 319 E-H
Jallo v. Military Governor of Kano State (1991) 5 NWLR (PL 194) 754
Mobil Oil Nig. Ltd v. Assan (1995) 8 NWLR (Pt.412) 129 & 150 D-E2
Nwakire v. C.O.P. (1992) NWLR (Pt. 241) 289
Ogembe v. Usman (2011) 17 NWLR (Pt 1277) 638 @ 656 F-G
Ogunsola v. NICON (2010) 13 NWLR (PL1211) 225 @236 G-H
Onfewu v. Kogi State Ministry of Commerce & Industry (2003) 10 NWLR (Pt. 827) 40
Purification Techniques Nig. Ltd v. Attorney-General Lagos State (2004) 9 NWLR (Pt.879) 665 (5) 681

STATUTES REFERRED TO
Sheriff and Civil Processes Act
Constitution of the Federal Republic of Nigeria
Public Officers Protection Law of Northern Nigeria
Interpretation Law of Northern Nigeria, 1963

ALH BAA & ANOR VS ALHAJA SIFAWA DANGANA

LEGALPEDIA CITATION: LER [2014] CA /IL/61/2013

AREA OF LAW:
APPEAL, NOTICE OF APPEAL

SUMMARY OF FACTS
The Plaintiff, now Respondent, filed an action at the upper Area Court claiming some reliefs against the Defendants, now Appellants, over a land dispute. The Appellants raised a preliminary objection challenging the Respondent’s locus- standi to institute the action. The preliminary objection was overruled and judgment was entered for the Plaintiff/Respondent. The lower Court heard the appeal and delivered its judgment wherein the appeal was dismissed. The Plaintiff now Appellants have appealed to this court.
HELD
Appeal Dismissed
ISSUES FOR DETERMINATION
The competence of the notice of appeal

RATIOS
NOTICE OF APPEAL-STATUTORY PERIOD FOR FILING SAME-FAILURE TO FILE WITHIN THE STATUTORY PERIOD-EFFECT OF
“Section 24(2) (a) of the Court of Appeal Act is very clear on the time line of 3 months for an intending appellant to file a notice of appeal from the decision of any court from which an appeal lies to this court. Failure to do so renders the purported notice of appeal incompetent and therefore void. Such notice of appeal is as good as never filed. Where a notice of appeal is incompetent, the record, the briefs and entire proceedings conducted will be null and void, meaning there is no pending appeal de jure. PER MUKHTAR JCA
NOTICE OF APPEAL-IMPORTANCE OF-DEFECTIVE NOTICE OF APPEAL-HOW TREATED
“The notice of appeal is the most crucial document in every appeal, being the initiation process. It is the very foundation of an appeal. It is a condition precedent to effectively appeal against any appealable decision. If therefore a notice of appeal is defective, then the Court of Appeal shall lack the legal competence to entertain the appeal. It will be left with no option than to strike out the “appeal.” PER MUKHTAR JCA

NOTICE OF APPEAL-NATURE OF
“A Notice of Appeal is the initiating process in an appeal and it constitutes the foundation on which the appeal itself can stand. Once the Notice of Appeal is defective, the whole appeal will have nothing to stand upon and will surely collapse. PER AKEJU JCA

NOTICE OF APPEAL –EFFECT OF AN INCOMPETENT NOTICE OF APPEAL
“Once found incompetent the jurisdiction of the appellate Court is eroded. There will be no appeal for the appellate Court to determine, the only power the appellate Court can exercise will be to make an order striking out the Appeal”. PER ONYEMENAM JCA
CASES MENTIONED
Aderibigbe vs. Abioye (2009) LPELR – 140 (SC)
Anadi V. Okoti (1972) 7 SC 57
C.B.N. V. Okojie (2004) 10 NWLR (Pt. 882) 488;
Ebokan vs. Ekwenibe & Sons Trading Co. Ltd (1999) 7 SCNJ 77
Ejiogu v Irona (2009) 4 NWLR (Pt.1132) 513 at 569
First Bank of Nigeria PLC V. T.S.A. Industries Ltd (2010) LPELR – 1283 (SC);
Oketie vs. Olugbor (1995) 5 SCNJ 217;
Thor Ltd vs. First City Monument Bank Ltd (2002) 2 SCNJ 85;
STATUTES REFERRED TO
Court of Appeal Act

PASTOR ISAAC OMOLEHIN & ANOR VS GREAT AJIBAIYE INDUSTRIES LTD

LEGALPEDIA CITATION: LER [2014] CA/IL/101/2013

AREA OF LAW
LIMITATION OF ACTION

SUMMARY OF FACTS
The Claimant took out a writ of summons and also filed a statement of claim against the Defendants seeking for declaratory and injunctive reliefs with respect to a parcel of land. The Claimant sought a declaration that he was the beneficial owner of the parcel of land by virtue of the certificate of occupancy No. kw 5876, an order of perpetual injunction restraining the Defendants, agent or servant from further acts of trespass and N 500,000.00k (Five Hundred Thousand Naira Only) as general damages for act of trespass committed by the Defendant on the land. The Defendants admitted having no original title in respect of the land, that it was originally allocated to late Major General Babatunde Idiagbon under certificate of occupancy No Kw 3736, that after Major Babatunde Idiagbon was given the initial allocation, the Defendants applied for an extension and was given a certificate of occupancy and that he was in possession of the land without any disturbance. The Defendants also stated that the family of Major Babatunde Idiagbon later assigned the said land to Dr Ademola Idowu by a deed of assignment and the latter subsequently put the 2nd Defendant in possession. At the end of the trial the learned trial judge entered judgment in favour of the Claimant. Aggrieved with the judgment of the trial court, the Defendants now Appellants have appealed to this Court on the grounds that the trial judge lacked jurisdiction to entertain the Claimant/Respondent’s claim in view of the Limitation Law of Kwara State.
HELD
Appeal Allowed
ISSUES FOR DETERMINATION
Whether the respondent’s action is statute barred.

Whether, considering the state of pleadings and evidence before it, the trial court was duty bound to pronounce on the validity of exhibit 7 as against exhibit Dl.

Whether, without the joinder of Major General Tunde Idiagbon and Kwara State Ministry of Land, the Respondent’s suit against the appellants was properly constituted.

Whether, considering the state of pleadings and evidence before it, the trial court was not right in holding that the respondent established a better title and a case of trespass against the appellant

RATIOS:
STATUTE OF LIMITATION-WHEN AN ACTION IS STATUTE BARRED –ON WHO LIES THE BURDEN OF PROOF
“It is the law that it is the defendant who should plead and prove that the action instituted against him by the plaintiff is statute barred. Thus, the onus is on the defendant who relies on such a defence of limitation of action to establish when the cause of action accrued to the plaintiff.” PER MUKHTAR JCA

LIMITATION OF ACTION – WHEN TIME BEGIN TO RUN
“Time begins to run in limitation of actions when all the facts which constitute the plaintiff’s cause of action have happened”. PER MUKHTAR JCA
DOCTRINE OF STATUTE BAR-PURPORT OF
The jurisprudence of the doctrine of statute bar as encapsulated in the various limitation laws is that no matter how creditable or meritorious a claim is, when it is not brought timeously, it abates and no relief can validly be sought to enforce a stale claim. Persons with reasonable cause of action should pursue them with reasonable diligence.” PER MUKHTAR JCA
LIMITATION STATUTE – APPLICATION AND SCOPE OF
“A limitation statute in its application must be read in retroactive, that is; it is effective from a particular date in the past. In other words a limitation law extends its scope to conditions that existed or originated in the past.” PER ONYEMENAM JCA
CASES MENTIONED
Chigbu V. Tonimas Nigeria Ltd & Anr. (2006) LPELR – 846 (SC)
Elabanjo v. Dawodu (2006) 6 SCNJ 204; (2006) 15 NWLR (Pt. 1001) 76
NPA. V. Abu Airadion Ajobi (2006) 7 SCNJ 168; (2006) 13 N WLR (Pt. 998) 477
Oba Aremo II v. S.F. Adekanye (2004) 7 SCNJ 218; (2004) 13 NWLR (Pt. 891) 572

STATUTE REFERRED TO
The Kwara State Limitation Law Cap K30 No.4 of 2006,

NABORE PROPERTIES LIMITED VS. PEACE-CO VER NIGERIA LIMITED & ORS

LEGALPEDIA CITATION: LER [2014] CA/L/145/2009

AREAS OF LAW:
JURISDICTION OF THE FEDERAL HIGH COURT, DECLARATORY RELIEFS
SUMMARY OF FACTS:
The Plaintiff/1st Respondent filed a Writ of Summons and Statement of Claim at the Federal High Court, Lagos, seeking a declaration that his alleged claim to right of way in Lekki Inland Foreshore (Ebute Imoba) of Lagos State Lagoon measuring 32529.296 Square Meters on Survey Plan No SOSA/LA/211/2001 dated 27/12/01 was purportedly granted to the 1st Respondent by the 2nd Respondent, National Inland Waterways Authority and further sought for reliefs and Injunctions against the other Defendants/Respondents. The 3rd-5th Respondents filed a notice of preliminary objection contending that the trial Court lacked jurisdiction to entertain the suit because it was a purely land matter. The trial Court overruled the said notice of preliminary objection on the ground that the act being challenged by the 3rd-5th Respondents was an administrative act of the 2nd Respondent, an Agent of the Federal Government of Nigeria. Aggrieved by the trial Court’s judgment, the Appellant who was not a party to the suit applied to be joined as a party and with the leave of the Court, it appealed against the ruling of the trial Court to the Court of Appeal.
HELD:
Appeal Succeeds Partially.
ISSUES FOR DETERMINATION:
Whether having regard to the Writ of Summons and Statement of Claim, the Federal High Court has the requisite jurisdiction to entertain this Suit.
Whether the Trial Court pronounced on substantive issues at the Interlocutory stage of proceedings; and if so, whether such pronouncement resulted in miscarriage of justice to any of the parties.

RATIOS:
JURISDICTION OF COURT-WHETHER A COURT CAN ADJUDICATE ON ANCILLARY RELIEFS WHERE IT HAS NO JURISDICTION TO ENTERTAIN THE MAIN CLAIM
“The law is that a court cannot adjudicate on ancillary reliefs where it has no jurisdiction to entertain the main claim especially where the determination of the ancillary claim must necessarily involve consideration of the main claim”. PER IYIZOBA, JCA
DECLARATORY RELIEF- NATURE OF CLAIM FOR
“A claim for a declaratory relief is an invitation to the court to make a pronouncement as to the legal position of a state of affairs” .PER IYIZOBA, JCA
DECLARATORY RELIEF-DUTY OF COURT IN GRANTING SAME
“Courts have in fact been advised not to grant declaratory reliefs lightly, but sparingly. This Court has in the past observed that a declaratory relief should be granted with “a display of high sense of responsibility and a full realization that judicial pronouncements are not to be made unless there are circumstances that dictate their making”. PER IYIZOBA, JCA
JURISDICTION OF THE FEDERAL HIGH COURT-WHETHER EVERY ACTION AGAINST AN AGENCY OF THE FEDERAL GOVERNMENT IS MAINTAINABLE BEFORE A FEDERAL HIGH COURT
Suffice it to say that one of the principal attributes of jurisdiction as laid down by the Supreme Court in Nkemdilim v Madukolu (1962) 2 SCNLR 341 is that the subject matter of the case must be within the jurisdiction of the court. Thus the fact that an action is against the Federal Government or an Agency of the Federal Government does not ipso facto bring the case within the jurisdiction of the Federal High Court. Section 251 (1) of the 1999 Constitution as amended does not contain a blanket provision that any suit against the Federal Government or any of her agencies must be heard only by the Federal High Court regardless of the subject matter”. PER IYIZOBA, JCA

ISSUE OF JURISDICTION-WHAT THE COURT SHOULD CONSIDER IN DETERMINING SAME
“The position of the law is that both the parties and the subject matter of the litigation are to be considered in the determination of the issue of the jurisdiction of the Federal High Court”. PER IYIZOBA, JCA
JURISDICTION OF COURT-DETERMINANT OF
“It is the Plaintiff’s statement of claim which determines the jurisdiction of the Court”. PER IYIZOBA, JCA
INTERLOCUTORY APPLICATIONS-DETERMINATION OF –DUTY OF COURTS THERETO
“The law is trite and supported by a long line of judicial authorities that in the determination of interlocutory applications, courts must refrain from making pronouncements on issues to be decided in the substantive suit”. PER IYIZOBA, JCA

COURTS-DUTY NOT TO DETERMINE SUBSTANTIVE MATTERS AT INTERLOCUTORY STAGE
“Trial courts as well as intermediate appellate courts should desist from making positive pronouncements touching on the substantive suit while they are only engaged in the determination of interlocutory matters before them because such practice is unacceptable in the administration of justice given the fact that it prejudices the real matter in controversy even before evidence is led and arguments are marshaled by parties in the substantive suit”. PER OSEJI JCA

SUBSTANTIVE MATTERS WHERE DECIDED AT INTERLOCUTORY STAGE-DUTY OF THE COURT
“Where a court errs and decides the substantive matter at the interlocutory stage of the proceedings, as in the instant case, the proper thing is to set aside the purported determination and remit the matter to the lower court for proper hearing and determination on the merit by another judge. PER OSEJI JCA
CASES MENTIONED
A.G. Anambra State V. Okeke (2002) 12 NWLR (PT 782) 575
Ahmed v Ahmed (2013) LPELR-21143
Hashim V. Minister FCT (2002) 15 NWLR (pt 789) 159,
Madubuike V. Madubuike (2001) 9 NWLR (pt719) 698,
Mudashiru v Persons Unknown (2004) LPELR-7412(CA)
Nkemdiiim v Madukolu (1962) 2 SCNLR 341
North-South Petroleum Nig. Ltd. V. FGN (2002) 17 NWLR(pt 797) 639
Odutola & Anor V. First Bank & Anor (2000) 4 NWLR (pt 653) 341
Ogunsola V. Usman (2002) 14NWLR (pt.788) 636,
Ojukwu V. Yar’adua (2009) 12 NWLR (PL 1154) 50
Olaniyi V. Aroyehun(1991) 5 NWLR PT 194) 652. Also in
S.B.N. Plc v Crown Star & Co Ltd (2003) 6 NWLR Pt 8151 @ 19 A-B
Tukur v Govt of Gongola State (1989) 4 NWLR (Pt 117) 517;
University Press Ltd V. Lk. Martins (Nig) Ltd I Sc 125

STATUTES REFERRED TO:
Land Title Vesting Act
The 1999 Constitution of the Federal Republic of Nigeria
National Inland Waterways Authority Act

NABORE PROPERTIES LTD VS PEACE-COVER NIGERIA LTD & 4 ORS

LEGALPEDIA CITATION: LER [2014] CA/L/1249/2010

AREAS OF LAW
CIVIL LITIGATION-PRELIMINARY OBJECTION-DATE FOR MENTION, INTERPRETATION OF STATUTES
SUMMARY OF FACTS
By a Writ of Summons and Statement of Claim dated 9/11/04 and filed on the same day, the 1st Respondent as Claimant sought against the other Respondents in this Appeal as well as the Appellant as the 8th Defendant certain Declaratory reliefs, Orders and Injunctions with respect to an alleged interest in Lekki Inland Foreshore (Ebute Imoba) of Lagos State Lagoon. The Appellant filed a Notice of Preliminary Objection challenging the jurisdiction of the Court. On 22/10/08, the Notice of Preliminary Objection was struck out due to failure of the Appellant to file a Written Address in support of the Preliminary Objection. The Appellant thereafter filed another Notice of Preliminary Objection on 23/10/08. Written Addresses were duly exchanged by the Appellant and the 1st Respondent. After the Appellant had filed and served his Reply on points of Law to the 1st Respondent’s Written Address, the said 1st Respondent brought a Motion on Notice dated 13/2/09 for leave to file a fresh Written Address in opposition to the Appellant’s Notice of Preliminary Objection. The trial court granted the 1st Respondent leave to file the said written address in opposition to the Appellant’s preliminary objection. The Appellant, dissatisfied with the Ruling of the trial Judge, appealed to this court.
HELD
Appeal disallowed.
ISSUES FOR DETERMINATION
Whether the Trial Court was in breach of Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000 by going ahead to hear and determine the said application dated 13th February 2009.
Whether the Appellant’s right to fair hearing was violated by the Trial Court in hearing and determining the application dated 13th February 2009.
Whether the application dated 13th February 2009 was an abuse of court process and a calculated attempt to over reach the Appellant.

RATIOS
INTERPRETATION OF STATUTES – RULE GOVERNING SAME
“The general rule governing interpretation of statutes is that where the language of the statute is clear and unambiguous, the Court should give the words their literal meaning.” PER IYIZOBA, JCA
RULES OF COURT-NATURE OF
“Rules of Court are not mere rules but are backed by the full force of the law.” PER IYIZOBA, JCA

MOTION-WHEN CAN BE HEARD
“When the motion is ripe for hearing, it may be heard at any time while the court is sitting.” PER IYIZOBA, JCA

ABUSE OF COURT PROCESS- WHAT AMOUNTS TO
Abuse of Court Process has severally been described as a ‘frivolous’, vexatious’, ‘annoying’, or ‘oppressive’ misuse of the process of Court”. PER IYIZOBA, JCA

DISCRETION OF COURT-HOW EXERCISED
“There is no doubt that a Trial Judge has the power to exercise his discretion to ensure that the aim of justice is satisfied by abridging time when necessary if a proper application is made to that effect, but a Judge does not have the power to rely on one rule to jettison the provision of other sections of the Court’s Rules of Procedure.” PER IYIZOBA, JCA

AFFIDAVIT EVIDENCE-NON-FILING OF COUNTER AFFIDAVIT-EFFECT OF
“The Principle as correctly submitted by the Appellant is that even where a Counter Affidavit was not filed in opposition to a Motion, that omission does not render the depositions in the Supporting Affidavit incontrovertible.” PER C.E. IYIZOBA, JCA

COUNTER AFFIDAVIT TO MOTION-INGREDIENT OF
“The practice is that where only an Applicant filed an affidavit in support of an application in a motion on notice, his affidavit must be cogent, compelling and unchallenged in order to entitle the applicant to a favourable ruling. Ruling in such a situation will not be entered for the Applicant as a matter of course.” PER C.E. IYIZOBA, JCA

ERRORS IN PROCESS-REMEDY OF
“The law is that a Party may remedy errors in his process even after a Preliminary Objection has been filed. The fact that a Preliminary Objection has been filed showing errors in a process does not prevent the applicant from making an application for correcting those errors or starting the process afresh on a more appropriate footing.” PER C.E. IYIZOBA, JCA

COURT PROCESS-WHETHER A PARTY IS ENTITLED TO WITHDRAW A PROCESS FILED IN COURT
“It is trite that a party is entitled to withdraw a Process he filed in court in order to correct a defect and to re-file same.” PER IYIZOBA, JCA

COURT PROCESS-WHEN WITHDRAWN FROM THE COURT-HOW TREATED
“The Rules of Procedure allow a Party to withdraw a Court process from the Court. Once a Process has been withdrawn from the court, the resultant position is that the same is treated as if it had never been filed and the issues raised in the withdrawn process become lifeless issues, which the Court will not consider in the resolution of the real issues before it.” PER C.E. IYIZOBA, JCA

CASES MENTIONED
A.S. T.C. v Quorum Consortium Ltd. (2009) 9 NWLR (Pt 1145) 1 @ 21 F-H
Agbakoba v INEC C2008) 18 NWLR (Pt 1119) 489 @ 537¬538 H-A,
African Reinsurance Corporation v DP Construction (Nig.) Ltd (2003) 13 NWLR (Pt 838) 609 at 635 F-G
Afro-Continental Nig. Ltd. v Co-operative Assoc. of Professionals Inc. (2003) 5 NWLR 303 & 317-318, F-B
Ajudahun v Ajudahun (2000) 4 NWLR Pt 654 605 at 615, Para E
Akuneziri Vs Okenwa (2000) 15 NWLR (Part 691) @ 533
Akwuaka v Lyam (2008) 2 NWLR (Pt 1072) 464 paras G-H
Amaechi v INEC (2008) 5 NWLR (Pt 1080) 227 & 449 C-D
F.C.E. v Okene Ogbonna (2006) 7 NWLR Pt 979 282 Ratio 6
Hungwa V. Uwuokwu (2011) LPELR-3754(CA);
Lawal-Osula v UBA Plc (2003) 5NWLR (Pt 813) 376 & 389 G-H
Momodu & Ors v Momoh & Anor (1991) 1 NWLR (Pt.169) 608
Okomu Oil Palm Ltd v Okpame (20071 3 NWLR (PL1020) 71 Nipol Limited v Bioku Investment &Property Co. Limited (1992) 4 NCLR 94 & 10 or (1992) 3 NWLR (Pt 232) 727
Odusote V. Odusote (1971) NMLR 228
Ogundoyin V. Adeyemi (2001) FWLR (PT. 71) 1741
Okafor v A-G., Anambra State (1991) 6 NWLR (Pt 200) 659
Otu v ACB Intl’ Bank Plc (2008) 3 NWLR Pt 1073 197¬198 paragraphs H-B
Owners of the MV ‘Arabella’ v Nigerian Agricultural Insurance Corporation (2008) 11 NWLR (Pt 182) 1097 @ 205-206 G-C
SCC Nig. Ltd v Elemadu (2005) 7 NWLR (Pt 923) 28 & 59 F-G
Shanu v Afribank (Nig.) Plc (2000) 13 NWLR (Pt 684) 392 & 404 F-G,
Tsokwa Oil Marketing Co. V Bank of the North (2002) 11 NWLR (Pt 777) 163
UBN Plc V. Astra Builders (2010) 41 NSCOR 1016 (a), 1038-1039

STATUTES REFERRED TO
Federal High Court (Civil Procedure) Rules 2000