CORAM
JUSTICE ADAMU HOBON – JUDGE FHC
PARTIES
KASMAL PROPERTIES LIMITED APPELLANTS
1. ADENIRAN ADEDOKUN VENTURES (NIG) LTD2. PENTAGON REAL ESTATE INVESTMENT LIMITED3. ARABA SHITTA DADA4. PASTOR SAMUEL5. ANOFI JINADU OGUNREMI6. GANIU LAWAL OGUNDARE 7. LATEEF KUSHORO8. YESIRO DISU TAIWO9. WASIU KAYODE SHODIPE10. ABIODUN AYUBA OGUNBO11. KABIRU JIMOH OGUNLEYE12. SGM PROPERTIES LIMITED13. ECOBANK NIGERIA PLC15. MAIN ONE CABLE CO. LTD RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondents commenced an action at the High Court of Lagos State, claiming the following reliefs; a declaration that the Claimant is the owner and the person entitled to the possession of all that piece or parcel of land at Ogombo Village Eti Osa local Government Area of Lagos state, shown on Plan No ASC/LA/146B/96 dated 9th July, 1996 drawn by F. A Ogunbadejo attached to the Deed of Assignment registered as No. 43/43/2200 of the land Registry of Lagos, a declaration that the Ogudu chieftaincy family having assigned all that piece or parcel of disputed land, the Ogudu Chieftaincy family have no land or any property to assign or transfer to any person out of the land already assigned to the Claimant and any purported assignment to any person is null and void by virtue of the doctrine of NEMO DAT QUOD NON HABET, an injunction restraining the Defendants whether by itself, its agents, servants, employees otherwise howsoever from remaining on or continuing in occupation of the said land and the sum of N 10 Million damages. The trial judge granted the 1st Respondent’s oral application for maintenance of status quo pending the determination of the matter, directing all parties to visit the disputed land in order to ascertain/verify state of developments on the disputed property. Dissatisfied with the ruling of the trial court, the Appellant has filed a notice of appeal. The 1st Respondent filed a notice to contend that the decision of the lower court be varied as follows; that it be set aside, that the matter be returned to the lower court to commence De Novo from Case Management Conference Stage at the Lagos Judicial Division of Lagos State High Court and re – assigned by the Admin Judge of the Lagos State High Court Judicial Division to another judge other than the trial judge Hon. Justice Bola Kikiolu – Ighile and for accelerated hearing. The grounds relied on by the 1st Respondent is that it is in the interest of justice and that of the 1st Respondent and other parties that the decision of the court below be varied to prevent further appeal to the Supreme Court in the case the Appeal is dismissed thereby preventing further delay among other grounds.
HELD
Appeal Allowed, Respondent’s Notice Dismissed
ISSUES
Whether in light of the decision of Learned trial Judge on 26/6/2013, granting accelerated hearing of the suit, in lieu of interlocutory injunction, Learned trial judge was functus officio and therefore estopped from granting the order for the maintenance of status quo pending the determination of the suit. Whether in light of the provisions of the High Court of Lagos state civil procedure rules, 2004 prescribing that all applications to the court must be by way of motion and supported by Affidavit evidence and a Written Address. Learned trial judge rightly or wrongly made the order dated 28/5/2014 for visit to the disputed land by parties and their Counsel and for maintenance of status quo pending the determination of the suit on the strength of 1st Respondent’s Counsel oral application/ submission.
RATIONES DECIDENDI
FUNCTUS OFFICIO – WHEN IS A COURT OF LAW FUNCTUS OFFICIO?
“It’s imperative to understand what it means for a court to be functus officio. This honourable court in Prince Buruji Kashamu v Attorney General of the Federal Republic of Nigeria (2013) LPELR – 22357 (CA) held thus;
“what is the meaning of “functus officio”? When is a court of law functus officio? In Mohammed v Husseini (1998) 14 NWLR (PT.584) P. 108 at 163, the Supreme Court said of functus officio thus: “The latin expression functus officio simply means “task performed”. Therefore, applying it to the judiciary, it means that a judge cannot give a decision or make an order on a matter twice. In other words, once a judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter … a judge is functus officio if he gives judgment on the merits…” In kpong v Udobong (2002) 2 NWLR (PT. 1017) P. 184 at 206 this court per Omokri, JCA (of blessed memory) had this to say on the definition of the phrase: “The phrase ‘functus officio” means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no force or authority. Also see Anyaegbunam v A.G Anambra State (2001) 6 NWLR (PT. 710) 532; Onyemobi v President O.C.C (1995) 3 NWLR (PT. 381) 50 and Ukachukwu v Uba (2005) 18 NWLR (PT. 956) 1 at 60”per ABOKI, JCA (PP. 49 – 50, PARAS. B – A)
FUNCTUS OFFICIO – MEANING OF FUNCTUS OFFICIO
“In Alhaji Hassan Khalid v Al – Nasim Travels & Tours Limited & Anor (2014) LPELR – 22331, this court held thus;
“…the phrase functus officio means task performed; having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. This means in practice that idea that the specific duties and functions that an officer was legally empowered and charged to perform have been wholly accomplished and, thus, the officer has no further authority or legal competence based on the original commission. This is because the thing which originally had life becomes dead or moribund after the performance of the connection with a court, it means that once a court has decided a matter before it, that Court has no further force or authority over the matter and it lacks competence or jurisdiction to review or revisit its decision and/or to re-open the said matter for further deliberations. It cannot assume appellate status over its decision…”per ABIRU, JCA (PP. 28 -29, PARA D)
ABUSE OF JUDICIAL PROCESS – DETERMINATION OF ABUSE OF JUDICIAL PROCESS
“In determining abuse of judicial process, the court in Ashley Agwasin & Anor V David Ojichie & Anor (2004) LPELR – 256(SC) held thus;
“In the determination of abuse of the judicial process, the court will consider the content of the first process vis – a – vis the second one to see whether they are aimed at achieving the same purpose”
“SHALL” – INTERPRETATION OF “SHALL” IN ORDER 39 RULES 1 (1) AND (2) THE HIGH COURT OF LAGOS STATE (CIVIL PROCEDURES) RULES, 2004
“The use of “shall” in Order 39 Rules 1 (1) and (2) the High Court of Lagos state (civil procedures) Rules, 2004 by the draftsmen is meant to make the provision mandatory. The Apex court in General Muhammadu Buhari v Independent National Electoral Commission (2008) LPELR – 814 (SC), it was held thus;
“When the word “shall” is used in a statute it connotes the intendment of the legislator that what is contained therein must be done or complied with. It does not give room for manoeuvre of some sort, or evasiveness. Whatever the provision requires to be done must be done, and it is not at all negotiable…”
per MUKHTAR, JSC (PP. 276 – 277, PARAS. E –D)
It was also held by this honourable court in Mr. Udak Etim Okon v Mr Ekaette Udak Okon (2016) LPELR – 42056 (CA);
“As a general rule the use of the word “shall” connotes and conveys a mandatory message in a statute. See Melaye v Tajudeen (2012) 15 NWLR (Pt. 1323) 315. Fidelity Bank Plc v Monye (2012) 10 NWLR (Pt. 1307) 1, Adeosun v Governor Ekiti State (2012) 4 NWLR (Pt. 1291) 581, Dantata v Mohammed (2012) 8 NWLR (Pt. 1302) 366”per OWOADE, JCA (P. 9, PARAS D – F)
RULES OF COURT – ESSENCE OF RULES OF COURT
“The Rules of the court are provided to give guidance, avoidance of surprises and preservation of parties right to fair hearing and it’s not meant to be treated with levity or at the will and whims of any one.”
RULES OF COURT – RULES OF COURT MUST BE OBEYED
“The rules of the court must be obeyed, this has be over – emphasised in a plethora of cases, in the recent case of Adelani Adepegba & Ors v Dr. Innocent (2015) LPELR – 40706 (CA), it was held thus by this court;
“The law is now trite that rules of court are not mere rules. Indeed, they are to be reckoned with as subsidiary legislations which by virtue of Section 18 (1) of the Interpretation Act have the force of law. See Akanbi vs Alao (1989) 3 NWLR (Pt.108) 118. Hence, the dire need for compliance therewith. It is thus further settled, that when there brazen non- compliance with mandatory rules of Court, the Court should remain passive and toothless. It should bark and bite. Thus, there must be sanction, otherwise the purpose aimed at, when the rules were enacted will be defeated and there will be no certainty or predictability with regard to application of the law. Put differently, rules of court are not only meant to be obeyed, they are also binding on the parties. See Bango vs Chado (1993) 9 NWLR (Pt. 554) 139, The Hon. Justice Kalu –Anyah vs African Newspapers of Nigeria Ltd (1992) 6 NWLR 1 (Pt. 247) 319. per OREDOLA, JCA (PP 13 – 14, PARAS C- A).
RESPONDENT’S NOTICE – IMPORT OF ORDER 9 RULE 1 OF THE COURT OF APPEAL RULES 2016, ON A RESPONDENT’S NOTICE
“It is imperative to set out the provision of Order 9 Rule 1 of the Court of Appeal Rules, 2016, which provides as follows;
“A Respondent who not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or not to make in the event, as the case may be”
RESPONDENT’S NOTICE – ESSENCE OF A RESPONDENT’S NOTICE
“The Apex Court had time to state the essence of a respondent’s notice in Ogunleye v Adeleye (1992) LPER 2340 SC and when a respondent can file a cross-appeal;
“… a respondent’s notice is only available to vary and retain the judgment and not to reverse same, so that where a complete reversal of the decision of the lower court is sought by a respondent what he has to do is to file a cross-appeal instead of a respondent’s notice vide Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214 (217): Sunmonu v. Ashorota (1975) 1 NMLR 16.”per OMO, J.S.C (P. 17, PARAS. B-C).
RESPONDENT’S NOTICE OF CONTENTION – WHEN IS A RESPONDENT’S NOTICE OF CONTENTION RESORTED TO?
“This court put it clearly in Sorungbe & Ors v Lagos Sate Urban Renewal Board & Ors (2017) LPELR – 43378 (CA) thus;
“The Respondent’s Notice of Contention is resorted to where the position of the respondent is that the judgment is correct but that the judgment was based on wrong grounds or premise; and that there is enough evidence on record which can sustain the judgment on other grounds other than those relied upon by the trial Court. The Respondent’s Notice of Contention postulates the correctness of the judgment. See American Cyanamid Company vs. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (PT 171) 15 or (1991) LPELR (461) 1 at 23-24, Sumonu vs. Ashorota (1975) 1 NMLR 16 and Lagos City Council vs. Ajayi (1970) 1 ALL NLR 291. It goes without saying that a Respondent’s Notice that postulates the correctness of the judgment appealed against cannot complain about error in law in the judgment. Where a Respondent contends that the judgment was the product of an error in law, then it presupposes dissatisfaction with the judgment and the logically appropriate procedure will be to file a cross appeal to correct the error in law and not a Respondent’s Notice: African Continental Seaways Ltd vs. Nigerian Dredging Roads And General Works Ltd (1977) 5 SC 235, Eliochin Nig. Ltd vs. Mbadiwe (1986) 1 NWLR (PT 14) 47 and Oro vs. Falade (1995) 5 NWLR (PT 396) 385.”per OGAKWU, J.C.A (PP. 6-7, PARA. E)
CASES CITED
None
STATUTES REFERRED TO
High Court of Lagos State (Civil Procedures) Rules, 2004|
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