OGUEBIE v. BASSEY & ANOR
CITATION: (2018) LPELR-46129(CA)
In the Court of AppealIn the Calabar Judicial Division
Holden at Calabar
ON TUESDAY, 23RD OCTOBER, 2018Suit No: CA/C/156/2011
Before Their Lordships:
MOJEED ADEKUNLE OWOADE Justice, Court of AppealOBANDE FESTUS OGBUINYA Justice, Court of AppealYARGATA BYENCHIT NIMPAR Justice, Court of Appeal
BetweenMRS. JULIE NDUBUISI OGUEBIE - Appellant(s)
And1. MR. EMMANUEL OKON BASSEY2. MR. NDUBUISI OGUEBIE - Respondent(s)
RATIO DECIDENDI
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1. ACTION - PROPER/DESIRABLE/NECESSARY PARTY(IES): Effect of not bringing a properparty before the Court"Put clearly, the appellant was not a necessary party to the matter. In law, a necessaryparty to a proceeding, distinct from a desirable party, is a person whose presence andparticipation is essential for an effective and compete determination of claim before a Court,see Green v. Green (2001) FWLR (Pt. 76) 795; Babayeju v. Ashamu (1998) 9 NWLR (Pt. 567)546; Cotecna Int'l Ltd v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346; P.W.T (Nig)Ltd. v. J.B.O. Int'l (2010) 19 NWLR (Pt. 1226) 1; ADC v. Bello (2017) 1 NWLR (Pt. 1545) 112;G.W.V.S. (Nig.) Ltd. v. Nigeria LNG Ltd. (2017) 8 NWLR (Pt. 1568) 381.In so far as the Appellant was an improper party to the suit, the lower Court was drained ofthe requisite jurisdiction to entertain it as it affected her only. The consequence is farreaching. The order the lower Court made against the appellant is well-rooted in nullity. Inthe sight of the law, nullity denotes: "Nothing; no proceeding; an act or proceeding in a casewhich the opposite party may treat as though it had not taken place; or which hasabsolutely no legal force or effect", see Lasisi v. State (2013) 12 NWLR (Pt. 1367) 133 at146, per Ngwuta JSC, Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Mamman v. Hajo(2016) 8 NWLR (Pt. 1575) 411. Nullity possesses caustic consequences in law. If a decisionor proceeding is infested with nullity, it is void and taken as it was never given or made, seeOkoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC(2010) 8 NWLR (Pt. 1196) 343. Moreover, such a decision or proceeding, in the domain ofthe law, donates no enforceable right on its beneficiary party who possesses it nor does itimpose any obligations on its victim party, see Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998)628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The bounden duty of a Court isto set aside a null order ex debito justitiae in that it does not exist in law, see Mamman v.Hajo (supra); N.A.C.B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v.Owoeye (2017) 12 NWLR (Pt. 1580) 364.For the sake of completeness and clarity, having found, after due consultation with the law,that the appellant was an improper party to the suit, all the castigations which the appellantrained against the lower Court's evaluation of the affidavit evidence before it pale intoinsignificance. In the same vein, the appellant's allegation of erosion of her inviolable rightto fair hearing by the lower Court comes to naught and unworthy of consideration.As long as the lower Court's decision over the Appellant was hostile to the law, it must bemowed down by the unbiased judicial sword of this Court."Per OGBUINYA, J.C.A. (Pp. 29-31,Paras. A-B) - read in context
2. APPEAL - GROUND(S) OF APPEAL: Nature and purpose of grounds of appeal"Indisputably, a ground of appeal is the focus of an appeal. It denotes the totality of thereasons why a decision complained of is considered wrong by an appealing party, seeEhinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357; Ugboaja v. Akintoye-Sowemimo (2008) 16NWLR (Pt. 113) 278; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Labour Party v. Bello(2017) 2 NWLR (Pt. 1548) 145; Ngere v. Okuruket 'XIV' (2017) 5 NWLR (Pt. 1559) 440;Ifaramoye v. State (2017) 8 NWLR (Pt. 1568) 457. It binds the Courts and parties, see Udomv. Umana (No. 1) 2016) 12 NWLR (Pt. 1526) 179. Its essence is to notify an opponent,usually a respondent, the nature of the adversary's, invariably an appellant's, complaintsagainst a decision, see Abe v. Unilorin (supra); Aderounmu v. Olowu (2000) 4 NWLR (Pt.652) 253; Lagos State v. Sarhuna (2009) All FWLR (Pt. 456) 1617; Ladoja v. Ajimobi (2016)10 NWLR (Pt. 1519) 87; Ogboru v. Okowa (2016) 11 NWLR (Pt. 1522) 84; Achonu v. Okuwobi(2017) 14 NWLR (Pt. 1584) 142; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; Kente v.Ishaku (2017) 15 NWLR (Pt. 1587) 94; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; GTBPlc. v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181; Nweke v. Unizik, Awka (2017) 18NWLR (Pt. 1598) 454; Atanda v. Comm., L & H., Kwara State (2018) 1 NWLR (Pt. 1599)32."Per OGBUINYA, J.C.A. (Pp. 8-9, Paras. B-C) - read in context
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3. APPEAL - GROUND(S) OF APPEAL: Whether a ground of appeal must be related to theratio decidendi of the judgment appealed against"It is trite, that a ground of appeal, which is the nucleus of every appeal, must attack anddisclose nexus with a decision that is the subject of appeal. In the sight of the law, a groundof appeal must be linked to and question a ratio decidendi, not an obiter dictum, of ajudgment. Any ground of appeal formulated in nubibus runs foul of this cardinal rule of lawand risks being struck out on account of incompetence, see Adelekan v. ECU-Line NV (2006)12 NWLR (Pt. 993) 333; Balonwu v. Governor of Anambra State (2008) 16 NWLR (Pt. 1113)236; Lawrence V. A.-G; Fed. (2008) 6 NWLR (Pt. 1084) 484; Okonobor V.D.E & S.T. Co. Ltd(2010) 17 NWLR (Pt. 1221) 181; Odunukwe v. Ofomata (supra); FBN Plc. v. TSA Ind. Ltd.(2010) 15 NWLR (Pt. 1216) 247; D.T.T. Ent. (Nig.) Co. Ltd v. Busari (2011) 8 NWLR (Pt. 1249)387; Garuba v. Omokhodion (2011) 15 NWLR (Pt. 1269) 145; Abe v. Unilorin (supra);Oleksandr v. Lonestar Drilling Co. Ltd. (2015) 9 NWLR (Pt. 1464) 337; Ngere v. Okuruket'XIV' (supra); Chiadi v. Aggo (2018) 2 NWLR (Pt. 1603) 175; Isaac v. Imasuen (2016) 7 NWLR(Pt. 1511) 250; Okafor v. Abumofuani (2016) 12 NWLR (Pt. 1525) 117; Udom v. Umana(No.1) (2016) 12 NWLR (Pt. 1526) 179."Per OGBUINYA, J.C.A. (Pp. 9-10, Paras. D-D) - read incontext
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4. APPEAL - GROUND(S) OF APPEAL: Whether where error(s) of law or misdirection is madea ground of appeal, the particulars of the error of law or misdirection must be given"That takes me to the settlement of the objector's second grouse, id est, that grounds ii andiii have no particulars. In this wise, the provision of Order 7 Rule 2(2) of the Court of AppealRules 2016 comes in handy for the consideration of the stubborn point. It reads:(2) Where a ground of appeal alleges misdirection or error in law, the particulars and thenature of the misdirection or error shall be clearly stated.In the eyes of the law, particulars of error are meant to throw light on the ground/complaintagainst the judgment under attack. In practice, they are set out independently after eachground of appeal. They can, also, be buried in the body of the ground without any injury tothe law. A ground of appeal does not require an army of particulars. One particular is potentenough to sustain an appeal. Indeed, they may be dispensed with once the grounds areclear, lucid and precise, see Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Osasona v. Ajayi(2004) 14 NWLR (Pt. 894) 537; UBA Ltd. v. Achoru (1990) 6 NWLR (Pt. 156) 154; Adekeye v.Adesina (2010) 18 NWLR (Pt. 1225) 449; Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (2011) 5 NWLR(Pt. 1239) 95; Abe v. Unilorin (supra); Oke v. Mimiko (No.2) (2014) 1 NWLR (Pt. 1388) 332.A clinical look at grounds ii, x-rayed earlier, reveals that it has no particularsattached/appurtenant to it. Put differently, it offends the provision of Order 7 Rule 2(2) ofthe Court of Appeal Rules, 2016.However, the case law has endorsed the point that not every contravention of the provisionwill render a ground incompetent. This is borne out of the Court's desire to crucifytechnicality on the altar of substantial justice. In this perspective, where sufficientparticulars can be gleaned from a ground of appeal and the adversary is not misled, it is notincompetent on the footing of want of particulars, see Best (Nig.) Ltd. v. B. H. (Nig.) Ltd.(2011) 5 NWLR (Pt. 1239) 95; Ameen v. Amao (2013) 9 NWLR (Pt. 1358) 159; Adejumo v.Olawaiye (2014) 12 NWLR (Pt. 1421) 252; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482)205, Waziri v. Geidam (2016) 11 NWLR (Pt. 1523) 230; Chiadi v. Aggo (supra). A microscopicexamination of ground ii, which is disobedient to ambiguity, discloses that the particularsare incorporated therein. Thus, the ground has conveyed, with sufficient notice andinformation to the objector and this Court, the crux of the appellant's complaints against thelower Court's decision. The reason, inter alia, for the appeal is encased in the ground ii.Thus, the enabling provisions of the Court of Appeal Rules have been fulfilled. The law doesnot compel the Courts to brand ground(s) of appeal incompetent on the slightest infractionof the rules of Courts. It is not the intent and spirit of the rules of Court, which are designedto ensure fairness to litigating parties, to shut out an appellant from ventilating hiscomplaints in an appeal, see Mil. Admin. Benue State v. Ulegede (2001) 17 NWLR (Pt. 731)194; Aderounmu v. Olowu (supra); Abe v. Unilorin (supra); The Minister of Petroleum & Min.Resources v. Expo Shipping Line (Nig.) Ltd. (2010) 12 NWLR (Pt. 1208) 261. The objector, inhis infinite wisdom, starved this Court on how he was misled by the ground ii on the footingof lack of particulars. On the premise of the foregoing, I dishonour the objector's incitinginvitation to expel ground ii from the appeal on the reason of absence of particulars andtransgression of the provision of Order 7 Rule 2(2) of the Court of Appeal Rules, 2016."PerOGBUINYA, J.C.A. (Pp. 11-14, Paras. E-E) - read in context
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5. APPEAL - OMNIBUS GROUND OF APPEAL: Import and effect of the omnibus ground ofappeal"It remains to settle ground iii. It had been displayed earlier in this judgment. It is a classicexemplification of an omnibus ground which is, usually, a ground employed against a trialCourt's appraisal of evidence, be it viva voca or documentary, and a nudge to reevaluatesame. See Osolu v. Osolu (2003) 11 NWLR (Pt. 832) 608. The law has given its imprimatur toan omnibus ground as a valid ground of appeal, see Atuyeye v. Ashamu (1997) 16 NWLR(Pt. 49) 267; Adeyeri v. Okobi (1997) 6 NWLR (Pt. 510) 534; Oteki v. A.-G., Bendel State(1986) 2 NWLR (Pt. 24) 648; Adelusola v. Akinde (2004) 12 NWLR (Pt. 887) 295/(2001) 5SCNJ 235/(2004) 5 SC (Pt. 11); Shehu v. State (2010) 8 NWLR (Pt. 1195) 112. It flows that anomnibus ground infuses life into a notice of appeal, an appeal, and it is viable to sustain anappeal. See Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1156) 529.The prescription of Order 7 Rule 2(3) of the Court of Appeal Rules, 2016 deals with vaguegrounds. The provision, which is comprehension - friendly, expels vague, generic andunseasonable grounds from the province of notice of appeal. See Doma v. INEC (2012) 13NWLR (Pt. 1317) 297; Abe v. Unilorin (supra); Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10NWLR (Pt. 1466) 124; Chiadi v. Aggo (supra). Nota bene, the selfsame provision saves "thegeneral ground that the judgment is against the weight of evidence," id est, the omnibusgrounds, see Abe v. Unilorin (supra); Akpamgbo-Okadigbo v. Chidi (No. 2) (supra). It means,that the provision excuses the omnibus ground from the stigma associated with vagueness,being general in terms and non-disclosure of reasonable grounds. Following the exemption,the objector's chastisement of ground iii, an omnibus ground, as characterised byvagueness is disabled and cannot fly. It is not infested with incompetence and does notdeserve the penalty of striking out as pontificated by the objector. In sum, I declare theground iii as valid ground of appeal."Per OGBUINYA, J.C.A. (Pp. 14-16, Paras. E-C) - read incontext
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6. APPEAL - FRESH POINT(S) ON APPEAL: Whether leave of Court must first be sought andobtained before fresh point can be raised on appeal and the exception(s) thereof"The kernel of the appellant's foremost complaint, after an indepth study of the issue, is thatshe ought not be a party to the suit on account of absence of privity of contract between herand the first respondent. In reaction, the first respondent registered a vehement objectionto the consideration of the point on the ground that it was not canvassed in the lower Court.The marrow of the protest is plain: that it is a fresh issue which must not be raised beforethis Court without leave of Court. A fresh issue is one which was not adjudicated andpronounced upon by a lower Court whence an appeal emanated, see Olalomi Ind. v. NIDB(2009) 16 NWLR (Pt. 1167) 577; C. G. G. (Nig.) Ltd. v. Aminu (2015) 7 NWLR (Pt. 1459) 577.An appellate Court is not clothed with the jurisdiction to entertain a fresh issue save with theleave of court sought and obtained, see Odom v. INEC (2015) 6 NWLR (Pt. 1456) 527;Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Yahaya v. Dankwambo (2016) 7 NWLR (Pt.1511) 284; Obasi v. Mikson Est. Ind. Ltd. (2016) 16 NWLR (Pt. 1539) 335. Leave, in thiscontext, connotes permission, see S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v.Ibekwe (1987) 4 NWLR (Pt. 67) 718 (1987) 2 NSCC Vol.18, 1219; Garuba v. Omokhodion(2011) 14 NWLR (Pt. 1269) 145; Otu v. ACB Int'l Ltd (2008) 3 NWLR (Pt. 1073) 179.However, this cardinal principle of law, that a fresh issue cannot be attended to by anappellate Court except with the leave of Court, is elastic. It admits of an exception. Its rideris well - founded in the wide domain of jurisdiction. If a new point borders on jurisdiction of aCourt, a party has the licence of the law to raise it on appeal without the leave of court, seeElugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Moses v. State (2006) 11 NWLR (Pt.992) 458; Owners M/V Gongola v. S. C. (Nig.) Ltd., (2007) 15 NWLR (Pt. 1056) 189; Opobiyiv. Muniru (2011) 18 NWLR (Pt. 1278) 387; C. G. G. (Nig.) Ltd. v. Aminu (supra); Agbule v. W.R. & R. Co. Ltd. (2013) 6 NWLR (Pt. 1350) 318; Dangote Gen. Text. Prod. Ltd. v. Hascon Ass.(Nig.) (2013) 16 NWLR (Pt. 1379) 60; NNPC v. Orhiowasele (2013) 13 NWLR (Pt. 1371) 211;Salisu v. Mobolaji (2014) 4 NWLR (Pt. 1396) 1; Unilorin v. Adesina (2014) 10 NWLR (Pt. 1414)159; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Sakati v. Bako (2015) 14 NWLR(Pt. 1480) 531; Wema Sec. & Fin. Plc. v. N.A.I.C (2015) 10 NWLR (Pt. 1484) 93.Unarguably, the plinth of the appellant's grouse is that she was not a proper party to bejoined in the action. It is now settled, beyond any peradventure of doubt, that an issue ofproper/improper parties touches and impinges on the jurisdiction of a Court to entertain amatter in limine. Indeed, "a person who asserts the right claimed or against whom the rightclaimed is exercisable must be present to give the Court the necessary jurisdiction", seeOlariede v. Oyebi (1984) 1 SCNLR 390 at 406, per Eso, JSC; Ekpere v. Aforiji (1972) 1 All NLR(Pt. 1) 220; Onwunalu v. Osademe (1971) 1 All NLR 14; Awoniyi v. Reg. Trustees of AMORC(2000) 10 NWLR (Pt. 676) 522; Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) 466; PlateauState v. A.-G., Fed. (2006) 3 NWLR (Pt. 967) 346; Faleke v. INEC (2016) 18 NWLR (Pt. 1543)61; G. & T. Investment Ltd. v. Witts & Bush Ltd. (2011) 8 NWLR (Pt. 1250) 500; Ogbebor v.INEC (2018) 6 NWLR (Pt. 1614) 1. The wisdom for such joinder of a party is to make himbound by the result of the suit, see Babayeju v. Ashamu (1998) 9 NWLR (Pt. 567) 546; RincoConst. Co. v. Veepee Ind. Ltd. (2005) 9 NWLR (Pt. 929) 85; Carrena v. Akinlase (2008) 14NWLR (Pt. 1107) 262; P.W.T. (Nig.) Ltd. v. J.B.O. Int'l (2010) 18 NWLR (Pt. 1226) 1; APC v.Karfi (2017) 16 NWLR (Pt. 1592) 457.Since the point falls, squarely, within the wide perimeter of jurisdiction, the law grants theappellant the unbridled latitude to raise it without leave of Court. It follows that theappellant has not defiled the law by raising the issue of the impropriety of joining her to thesuit. On this score, this Court is invested/equipped with ample vires to entertain the issue. Inthe end, the objection, erected by the first respondent to truncate the consideration of thepoint, is lame. Accordingly, I overrule and dismiss it. I will proceed to attend to the point onits merits."Per OGBUINYA, J.C.A. (Pp. 22-25, Paras. B-F) - read in context
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7. CONTRACT - PRIVITY OF CONTRACT: General principles of privity of contract"By way of prefatory remarks, the ancient doctrine of privity of contract has been defined as"that connection or relationship which exists between two or more contracting parties", seeRebold Ind. Ltd. v. Magreola (2015) 8 NWLR (Pt. 1461) 201 at 231, per Fabiyi, JSC. Thedoctrine, which is part of our corpus juris, postulates, generally, that a contract cannotconfer/bestow rights, or impose obligations arising under it, on any person except parties toit. Put simply, a stranger to a contract cannot gain or be bound by it even if made for hisbenefit, see J. E. Oshevire Ltd v. Tripoli Motors (1997) 5 NWLR (Pt. 503) 1/(1997) 4 SCNJ 246;Owodunni v. Registered Trustees, CCC Worldwide (2000) 10 NWLR (Pt. 675) 315; Makwe v.Nwukor (2001) FWLR (Pt. 63)/(2001) 14 NWLR (Pt. 733) 356; Union Beverages Ltd v. PepsiCola Int. Ltd (1994) 3 NWLR (Pt. 330) 1; UBA v. Jargaba (2007) NWLR (Pt. 1045); Nwuba v.Ogbuehi (2007) NWLR (Pt. 1072); Osoh v. Unity Bank Plc (2013) 9 NWLR (Pt. 1358) 1;Idufueko v. Pfizer Products Ltd. (2014) 12 NWLR (Pt. 1420) 96; Rebold Ind. Ltd. v. Magreola(supra); Reichie v. N.B.C.I (2016) 8 NWLR (Pt. 1514) 274.I have visited the record, the spinal cord of the appeal, particularly in the residence of theprocesses filed by the contending parties which colonize pages 1-56 of the record. I haveperused them meticulously. Admirably, they rebel against ambiguity. The contract for thesale of the property in question, Plot 1 Ikot Mbo Layout, Calabar, is embodied in Exhibit Awhich is found at pages 5 and 6 and 33 and 34 of the record. The temporary sale agreementtherein was executed on 17th September, 2008, between the second respondent and thefirst respondent as the transferor and transferee of the property respectively. When theterms of that contract could not be enforced to conclusion, following its abortion by theappellant's interference, there was an agreement to refund the sum of N6m (Six MillionNaira) only paid to the second respondent by the first respondent as reflected in Exhibit A.The second agreement on the refund, executed on 1st July, 2009, tagged Exhibit C andlocated at pages 9 and 10 and 42 and 43 of the record, was between the second respondentand the first respondent as the seller and buyer of the property respectively. The appellantsigned as a witness. Thus, the appellant was not a party to the contract in Exhibit A whichled to the alienation of the property. Similarly, she was not a party to the refund agreement,showcased in Exhibit C, notwithstanding that she witnessed it. The fact that a party haswitnessed an agreement, oral or written, does not, de jure, translate him to a party to it.It is discernible from the foregoing, that the appellant was alien to the two contracts whichwere the casus belli of the action which metamorphosed into the appeal. Put the other wayround, there was no privity of contract between the appellant and the first respondent vis-a-vis the disposition of the landed property. For this reason, I will not hesitate to crown himwith the toga of a stranger to the contract. In the view of the law, a stranger to a contract isnot endowed with the locus standi to sue or be sued even when the contract is for hisprofit/advantage."Per OGBUINYA, J.C.A. (Pp. 26-28, Paras. B-F) - read in context
8. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Whether a preliminaryobjection raised on appeal must be resolved before hearing the substantive appeal"A preliminary objection is a specie of objection which, if sustained by a Court, will renderfurther proceedings in a matter unnecessary, see Abe v. Unilorin (2013) 16 NWLR (Pt. 1379)183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR(Pt. 1350) 225. For this reason, the law commands the Court to deal with a preliminaryobjection, when raised in any proceedings, first, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR(Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104;SPDCN Ltd v. Amadi (2011) 14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. Ind. Ltd (2010) 15NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC(Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt.1247) 423; Sa'eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR(Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v.NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256;Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment soas not to insult the law."Per OGBUINYA, J.C.A. (Pp. 6-7, Paras. A-A) - read in context
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9. P R A C T I C E A N D P R O C E D U R E - A C A D E M I C O R H Y P O T H E T I C A LQUESTION(S)/ISSUES/SUIT/EXERCISE: Whether Court can make pronouncements onacademic/hypothetical issues"At once, flowing from the outcome of issue one, the appellant's issue two falls within theconstricted four walls of academic issue. In Plateau State v. A-G., Fed (2006) 3 NWLR (Pt.967) 346 at 419, Tobi, JSC, incisively, explained the term, thus:A suit is academic where it is merely theoretical, makes empty sound, and of no practicalutilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if itis not related to practical situation of human nature and humanity.It is settled law, that a Court is divested of the necessary jurisdiction to adjudicate overacademic disputes. Such academic questions are divorced from live issues which engagethe adjudicative attention of the Courts. This is so even if their determination will enrich thejurisprudential content of the law, see A.-G., Anambra State v. A.-G., Fed. (2005) 9 NWLR(Pt. 931) 572; Ugba v. Suswan (2014) 14 NWLR (Pt. 1427) 264; Salik v. Idris (2014) 15 NWLR(Pt. 1429) 36; FRN v. Borishade (2015) 5 NWLR (Pt. 1451) 155; Danladi v. T.S.H.A. (2015) 2NWLR (Pt. 1442) 103; FRN v. Dairo (2015) 6 NWLR (Pt. 1452) 141; Daniel v. INEC (2015) 9NWLR (Pt. 1463) 113; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Dickson v. Sylva(2017) 10 NWLR (Pt. 1573) 299; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343.Having regard to this current inelastic position of the law, the appellant's issue two is, to allintents and purposes, rendered idle. The raison detre for its being spent is not far-fetched.Its consideration by this Court, even if found in favour of the appellant or the respondent,will be of no judicial utilitarian value to either of them premised on the result of issue one.Besides, it is trite that Courts are not clothed/cloaked with the jurisdiction to adjudicate overacademic suit/issues. In total fidelity to the law, I strike out issue two for want of legaljustification to treat it."Per OGBUINYA, J.C.A. (Pp. 31-33, Paras. C-A) - read in context
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OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the
Leading Judgment): This appeal probes into the
correctness of the decision of the High Court of Cross River
State, sitting in Calabar (hereinafter addressed as “the
lower Court”), coram judice: Obojor A. Ogar, J., in Suit No.
HC/14/2011, delivered on 27th May, 2011. Before the lower
Court, the first respondent was the claimant whilst the
second respondent and the appellant were the first and
second defendants respectively.
The facts of the case, which transformed into the appeal,
are submissive to brevity and easy appreciation. Sometime
in 2008, the second respondent, the appellant’s husband,
offered to sell the property situated at Plot 1 Ikot Mbo
Layout, Calabar, for the sum of N12,800,000 (Twelve
Million, Eight Hundred Thousand Naira) only to the first
respondent. The first respondent accepted the offer and
made a part payment of N6,000,000 (Six Million Naira) only
and to pay the balance in December, 2008. The contract
was reduced into writ ing on 17th September,
2008. Subsequently, the appellant wrote a letter to the first
Respondent which culminated in the
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cancellation of the contract. As a result, there was another
written contract, made on 1st September, 2009, for the
second respondent to refund the N6,000,000 (Six Million
Naira) only with a compensation fee/sum of N300,000
(Three Hundred Thousand Naira) only to the first
respondent. The refund was to be made on the second
respondent’s disposition of the property. On 17th May,
2010, the second respondent resold the property, but
refused to repay the first respondent, as agreed, despite
repeated demands. Sequel to that, the first respondent
beseeched the lower Court, via an undefended list
proceeding filed on 21st January, 2011, and tabled against
the second respondent and appellant, jointly and severally,
the following reliefs:
1. The sum of N6,300,000 (Six Million, Three
Hundred Thousand Naira) being money paid to the
defendants by the claimant without consideration.
2. 21% interest from 17th day of May, 2010 till
judgment.
3. 10% post judgment interest till the entire sum is
liquidated.
In an expected reaction, the second respondent and the
appellant joined issue with the first respondent and denied
liability by filing their respective notices of intention to
defend the suit.
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Following the denial of liability, the lower Court heard the
suit under an undefended list procedure. In a considered
judgment, delivered on 27th May, 2011, found at pages
80-83 of the record, the lower Court granted the first
respondent’s claim under the undefended list proceeding.
The appellant was dissatisfied with the decision. Hence, on
6th June, 2011, the appellant lodged a 3-ground notice of
appeal, seen at pages 84-86 of the printed record of appeal,
wherein she prayed as follows:
The Appellant seek (sic) the setting aside of the
ruling of the Honourable Tribunal and ordering that
the suit be transferred toi (sic) the general cause list
to be heard on the merit or alternatively the name of
the 2nd defendant/appellant be struck off the suit in
v i e w o f t h e a d m i s s i o n o f t h e 1 s t
defendant/respondent.
Thereafter, the parties filed and exchanged their briefs of
argument in line with the rules governing the hearing of
civil appeals in this Court. The appeal was heard on 20th
September, 2018.
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Preliminary objection:
The first respondent, at the threshold of his brief of
argument, greeted the appeal with a preliminary objection
on grounds that:
1.The Grounds of Appeal does not (sic) arise from the
judgment of the lower Court.
2. That Grounds 2, 3 and 4 have no particulars.
Submissions on the objection:
Learned counsel for the first respondent (the objector),
Patrick Offem, Esq., submitted that ground i of the
appellant’s ground of appeal did not arise from the
decision, as required by law, and so rendered incompetent
and should be struck out. He relied on Idris v. Abubakar
(2011) All FWLR (Pt. 557) 773; Ballantyne v. Ayi
(2010) All FWLR (Pt. 514) 176. He posited that grounds
ii and iii were vague and without accurate particulars
which rendered them incompetent and liable to be struck
out. He referred to Order 6 Rule 2(2) of the Court of
Appeal Rules, 2011, Khalil v. Yar’ Adua (2003) 16
NWLR (Pt. 847) 446; Order 3 Rule 2 of the Court of
Appeal Rules, 2011; Oge v. Ede (1995) 3 NWLR (Pt.
385) 564; Agbo v. Younan (1974) 3 WSC. 66; CBN v.
Okojie (2002) 8 NWLR (Pt. 768) 48; Brief Writing in the
Court of Appeal and the Supreme Court by Philip
Nnaemeka-Agu at pages 108 and 109.
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He added that issues distilled from incompetent grounds of
appeal were incompetent and liable to be struck out. He
cited Punch (Nig.) Ltd v. Jumsum Pt. 567 (sic).
For the appellant, learned counsel, E. E. Osim, Esq.,
contended that all the grounds originated from decision of
the lower Court. He noted that ground i bordered on the
lower Court’s failure to consider the appellant’s counter-
affidavit and thereby denied her of the constitutional right
to be heard on her process. He relied onAkpan v. Bob
(2010) 10 SCM 1. He explained the objects of grounds ii
and iii. He observed that they were not vague since they
did not confuse the first respondent. He referred to British
Airways v. Atoyebi (2011) 2 WRN 37. He reasoned that
the omnibus ground could not be struck out because an
issue was distilled from it. He relied on Dakolo v. Dakolo
(2011) 7 SCM 54. He asserted that failure to attach
particulars to clear and a succinct ground of appeal would
not be fatal to an appeal. He referred to (Best (Nig.) Ltd
v. Blackwood Hodge (2011) 2 SCM 48. He described the
objection as based on technicality and urged the Court to
strike it out.
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Resolution of the preliminary objection:
A preliminary objection is a specie of objection which, if
sustained by a Court, will render further proceedings in a
matter unnecessary, see Abe v. Unillorin (2013) 16
NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR
(Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6
NWLR (Pt. 1350) 225. For this reason, the law commands
the Court to deal with a preliminary objection, when raised
in any proceedings, first, see Uwazurike v. A.-G., Fed.
(2007) 8 NWLR (Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v.
Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104;
SPDCN Ltd v. Amadi (2011) 14 NWLR (Pt. 1266) 157;
FBN Plc v. T.S.A. Ind. Ltd (2010) 15 NWLR (Pt. 1216)
247; Okereke v. James (2012) 16 NWLR (Pt. 1326)
339; APC v. INEC (Supra); Ogboru v. Uduaghan
(2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7
NWLR (Pt. 1247) 423; Sa’eed v. Yakowa (2013) 7
NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR
(Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR
(Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt.
1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt.
1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt.
1533) 458;
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Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256;
Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I
will obey this legal commandment so as not to insult the
law. The objector’s objection seeks to terminate the
appellant’s appeal in limine on two vitriolic grounds.
The three grounds the objector seeks to impugn are
grounds i, ii and iii of the appellant’s notice of appeal.
Owing to their kingly position in the objection and the
appeal, it is imperative to pluck them out, ipsissima verba,
where they are domiciled in the notice of appeal occupying
pages 84-86 of the printed record. The three grounds of
appeal, derobed of their particulars, read:
Grounds of Appeal:
i. The Learned justice of the Honourable Court erred
in law when (sic) failed, refused and or neglected to
take into consideration the further affidavit of the
2nd Defendant/Appellant before him in his ruling
thereby denying the Appellant the right to fair
hearing.
(ii) The Learned Trial Judge erred in Law when in the
determination of the Affidavit evidence of the parties
before him failed to consider the all important/vital
issue raised by the Appellant that the
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Appellants original copy of Certificate of Occupancy is
deposited at Bank PHB by the Claimant/Respondent
for a loan of Fifteen Million Naira (N15,000,000.00).
(iii) The ruling of the Honourable Trial Court is
against the weight of evidence before it.
Indisputably, a ground of appeal is the focus of an
appeal. It denotes the totality of the reasons why a decision
complained of is considered wrong by an appealing party,
see Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357;
Ugboaja v. Akintoye-Sowemimo (2008) 16 NWLR (Pt.
113) 278; Akpan v. Bob (2010) 17 NWLR (Pt. 1223)
421; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548)
145; Ngere v. Okuruket ‘XIV’ (2017) 5 NWLR (Pt.
1559) 440; Ifaramoye v. State (2017) 8 NWLR (Pt.
1568) 457. It binds the Courts and parties, see Udom v.
Umana (No. 1) 2016) 12 NWLR (Pt. 1526) 179. Its
essence is to notify an opponent, usually a respondent, the
nature of the adversary’s, invariably an appellant’s,
complaints against a decision, see Abe v. Unilorin
(supra); Aderounmu v. Olowu (2000) 4 NWLR (Pt.
652) 253; Lagos State v. Sarhuna (2009) All FWLR
(Pt. 456) 1617;
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Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87;
Ogboru v. Okowa (2016) 11 NWLR (Pt. 1522) 84;
Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142;
PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; Kente
v. Ishaku (2017) 15 NWLR (Pt. 1587) 94; PDP v.
Sheriff (2017) 15 NWLR (Pt. 1588) 219; GTB Plc. v.
Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181;
Nweke v. Unizik, Awka (2017) 18 NWLR (Pt. 1598)
454; Atanda v. Comm., L & H., Kwara State (2018) 1
NWLR (Pt. 1599) 32.
Now, one of the objector’s chief grievances, which is
targeted against ground i, is that it does not flow from the
decision of the lower Court sought to be upturned.
It is trite, that a ground of appeal, which is the nucleus of
every appeal, must attack and disclose nexus with a
decision that is the subject of appeal. In the sight of the
law, a ground of appeal must be linked to and question a
ratio decidendi, not an obiter dictum, of a judgment. Any
ground of appeal formulated in nubibus runs foul of this
cardinal rule of law and risks being struck out on account
of incompetence, see Adelekan v. ECU-Line NV (2006)
12 NWLR (Pt. 993) 333; Balonwu v. Governor of
Anambra State (2008) 16
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NWLR (Pt. 1113) 236; Lawrence V. A.-G; Fed. (2008) 6
NWLR (Pt. 1084) 484; Okonobor V.D.E & S.T. Co. Ltd
(2010) 17 NWLR (Pt. 1221) 181; Odunukwe v.
Ofomata (supra); FBN Plc. v. TSA Ind. Ltd. (2010) 15
NWLR (Pt. 1216) 247; D.T.T. Ent. (Nig.) Co. Ltd v.
Busari (2011) 8 NWLR (Pt. 1249) 387; Garuba v.
Omokhodion (2011) 15 NWLR (Pt. 1269) 145; Abe v.
Unilorin (supra); Oleksandr v. Lonestar Drilling Co.
Ltd. (2015) 9 NWLR (Pt. 1464) 337; Ngere v.
Okuruket ‘XIV’ (supra); Chiadi v. Aggo (2018) 2
NWLR (Pt. 1603) 175; Isaac v. Imasuen (2016) 7
NWLR (Pt. 1511) 250; Okafor v. Abumofuani (2016)
12 NWLR (Pt. 1525) 117; Udom v. Umana (No.1)
(2016) 12 NWLR (Pt. 1526) 179.
The 4-page terse judgment of the lower Court, which is
wrapped between pages 80-83 of the record, is obedient to
clarity. The ratio decidendi of the decision is located at
page 83, lines 6-8, of the record. It is weaved on the lower
Court’s opinion “… that a holistic consideration of the
affidavits of the 1st and 2nd defendants reveal their
admission of the claimant’s claim rather than a defence
thereto”. The ground i quarrels with the lower
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Court’s failure to consider one of the appellant’s affidavits
in the determination of the case. In other words, the
ground tries to puncture the lower Court’s viewpoint on its
complete examination of the affidavits filed by the feuding
parties in the case. Put simply, the complaint in the ground
strikes at the heart of the ratio decidendi of the judgment.
In essence, the ground i is a direct attack on the decision,
the subject of this appeal, and, clearly, germinated from it.
It flows, that the ground is not, in the least, guilty of the
objector’s allegation of want of connection/correlation with
the decision. In effect, it has not fractured the law to
warrant its ostracisation from the appeal. I rather welcome
it for consideration in the appeal. In the end, the first
ground of objection fails and falls flat.
That takes me to the settlement of the objector’s second
grouse, id est, that grounds ii and iii have no particulars. In
this wise, the provision of Order 7 Rule 2(2) of the Court of
Appeal Rules 2016 comes in handy for the consideration of
the stubborn point. It reads:
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(2) Where a ground of appeal alleges misdirection or
error in law, the particulars and the nature of the
misdirection or error shall be clearly stated.
In the eyes of the law, particulars of error are meant to
throw light on the ground/complaint against the judgment
under attack. In practice, they are set out independently
after each ground of appeal. They can, also, be buried in
the body of the ground without any injury to the law. A
ground of appeal does not require an army of particulars.
One part icular is potent enough to sustain an
appeal. Indeed, they may be dispensed with once the
grounds are clear, lucid and precise, see Nsirim v. Nsirim
(1990) 3 NWLR (Pt. 138) 285; Osasona v. Ajayi (2004)
14 NWLR (Pt. 894) 537; UBA Ltd. v. Achoru (1990) 6
NWLR (Pt. 156) 154; Adekeye v. Adesina (2010) 18
NWLR (Pt. 1225) 449; Best (Nig.) Ltd. v. B. H. (Nig.)
Ltd. (2011) 5 NWLR (Pt. 1239) 95; Abe v. Unilorin
(supra); Oke v. Mimiko (No.2) (2014) 1 NWLR (Pt.
1388) 332.
A clinical look at grounds ii, x-rayed earlier, reveals that it
has no particulars attached/appurtenant to it. Put
differently, it offends the provision of Order 7 Rule 2(2) of
the Court of Appeal Rules, 2016.
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However, the case law has endorsed the point that not
every contravention of the provision will render a ground
incompetent. This is borne out of the Court’s desire to
crucify technicality on the altar of substantial justice. In
this perspective, where sufficient particulars can be
gleaned from a ground of appeal and the adversary is not
misled, it is not incompetent on the footing of want of
particulars, see Best (Nig.) Ltd. v. B. H. (Nig.) Ltd.
(2011) 5 NWLR (Pt. 1239) 95; Ameen v. Amao (2013)
9 NWLR (Pt. 1358) 159; Adejumo v. Olawaiye (2014)
12 NWLR (Pt. 1421) 252; Omisore v. Aregbesola
(2015) 15 NWLR (Pt. 1482) 205, Waziri v. Geidam
(2016) 11 NWLR (Pt. 1523) 230; Chiadi v. Aggo
(supra).
A microscopic examination of ground ii, which is
disobedient to ambiguity, discloses that the particulars are
incorporated therein. Thus, the ground has conveyed, with
sufficient notice and information to the objector and this
Court, the crux of the appellant’s complaints against the
lower Court’s decision. The reason, inter alia, for the
appeal is encased in the ground ii. Thus, the enabling
provisions of the Court of Appeal Rules have been fulfilled.
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The law does not compel the Courts to brand ground(s) of
appeal incompetent on the slightest infraction of the rules
of Courts. It is not the intent and spirit of the rules of
Court, which are designed to ensure fairness to litigating
parties, to shut out an appellant from ventilating his
complaints in an appeal, see Mil. Admin. Benue State v.
Ulegede (2001) 17 NWLR (Pt. 731) 194; Aderounmu v.
Olowu (supra); Abe v. Unilorin (supra); The Minister
of Petroleum & Min. Resources v. Expo Shipping Line
(Nig.) Ltd. (2010) 12 NWLR (Pt. 1208) 261. The
objector, in his infinite wisdom, starved this Court on how
he was misled by the ground ii on the footing of lack of
particulars. On the premise of the foregoing, I dishonour
the objector’s inciting invitation to expel ground ii from the
appeal on the reason of absence of particulars and
transgression of the provision of Order 7 Rule 2(2) of the
Court of Appeal Rules, 2016.
It remains to settle ground iii. It had been displayed earlier
in this judgment. It is a classic exemplification of an
omnibus ground which is, usually, a ground employed
against a trial Court’s appraisal of
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evidence, be it viva voca or documentary, and a nudge to
reevaluate same. See Osolu v. Osolu (2003) 11 NWLR
(Pt. 832) 608. The law has given its imprimatur to an
omnibus ground as a valid ground of appeal, see Atuyeye
v. Ashamu (1997) 16 NWLR (Pt. 49) 267; Adeyeri v.
Okobi (1997) 6 NWLR (Pt. 510) 534; Oteki v. A.-G.,
Bendel State (1986) 2 NWLR (Pt. 24) 648; Adelusola
v. Akinde (2004) 12 NWLR (Pt. 887) 295/(2001) 5
SCNJ 235/(2004) 5 SC (Pt. 11); Shehu v. State (2010)
8 NWLR (Pt. 1195) 112. It flows that an omnibus ground
infuses life into a notice of appeal, an appeal, and it is
viable to sustain an appeal. See Aderibigbe v. Abidoye
(2009) 10 NWLR (Pt. 1156) 529.
The prescription of Order 7 Rule 2(3) of the Court of Appeal
Rules, 2016 deals with vague grounds. The provision, which
is comprehension - friendly, expels vague, generic and
unseasonable grounds from the province of notice of
appeal. See Doma v. INEC (2012) 13 NWLR (Pt. 1317)
297; Abe v. Unilorin (supra); Akpamgbo-Okadigbo v.
Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124; Chiadi
v. Aggo (supra). Nota bene, the selfsame provision saves
“the general ground that the judgment is
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against the weight of evidence,” id est, the omnibus
grounds, see Abe v. Unilorin (supra); Akpamgbo-
Okadigbo v. Chidi (No. 2) (supra). It means, that the
provision excuses the omnibus ground from the stigma
associated with vagueness, being general in terms and non-
disclosure of reasonable grounds. Following the exemption,
the objector’s chastisement of ground iii, an omnibus
ground, as characterised by vagueness is disabled and
cannot fly. It is not infested with incompetence and does
not deserve the penalty of striking out as pontificated by
the objector. In sum, I declare the ground iii as valid
ground of appeal. In all, the objector’s second ground of
objection, like the first, fails.
In the light of this legal anatomy, the preliminary objection,
invented by the objector to snuff life out of the appeal at its
infancy, is, totally, unfounded in law. Accordingly, I
overrule and dismiss the preliminary objection. I will
proceed to consider the appeal on its merits.
Consideration of the appeal:
During the hearing of the appeal, on 20th September, 2018,
learned counsel for the appellant, O. K. Elias, Esq.,
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adopted the appellant’s brief of argument, filed on 11th
May, 2012 but deemed properly filed on 7th February,
2013, and the appellant’s reply brief, filed on 17th
September, 2014 but deemed properly filed on 6th
February, 2017, both settled by E. E. Osim, Esq., as
representing his arguments for the appeal. He urged the
Court to allow it. The first respondent’s brief of argument
was filed on 15th May, 2013, but deemed properly filed on
11th February, 2014. The first respondent was, duly,
served in respect of the proceedings of 20th September,
2018, but was not represented. As a result, this Court
treated the appeal/brief as duly argued/adopted pursuant to
the provision of Order 19 Rule 9(4) of the Court of Appeal
Rules, 2016. The second respondent, who was duly served,
filed no brief of argument in the appeal.
In the Appellant’s brief of argument, learned counsel
distilled two issues for determination to wit:
1. Whether the appellant’s right to fair hearing was
not impaired and or breached by the Trial Court not
deciding on the facts in the appellant’s further
Affidavit and other facts
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contained in the appellant’s Affidavit of intention to
defend?
2. Whether upon all the available evidence, this is not
case to be transferred to the general cause list?
The first respondent’s learned counsel, in his brief of
argument, crafted two issues for determination viz:
1.Whether the Learned trial judge granted fair
hearing to the parties herein before delivering
judgment on the 27th day of May, 2011.
2. Whether the trial Court transferring the matter to
the general cause list exercises his discretion
judiciously and judiciary (sic).
A close look at the two sets of issues shows that they are
identical in substance. Indeed, the first respondent’s issues
can be, conveniently, subsumed under the appellant’s. For
this reason of sameness, I will decide the appeal on the
basis of the issues formulated by the appellant: the
undoubted owner of the appeal.
Arguments on the issues
Issue one:
Learned counsel for the appellant submitted that the
appellant, on the principle of privity of contract, ought not
to be a party to the suit at the lower Court because she was
not a party to the
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transactions/contract between the second respondent and
the first respondent. He posited that the lower Court’s
failure to consider the appellant’s affidavit of intention to
defend amounted to a breach of her right to fair hearing.
He explained that the first Respondent admitted using the
appellant’s Certificate of Occupancy to secure loan which
was an admission against interest. He added that admitted
facts needed no proof. He relied on Ajagbe v. Idowu
(2011) 7 SCM 29; Asika v. Atuanya (2008) All FWLR
(Pt. 433) 1293; Fagunwa v. Adibi (2004) 19 NSCQR
415. He insisted that the lower Court’s failure to use those
facts made its decision perverse and denial of appellant’s
right to fair hearing. He cited Stabilini Vision (Nig.) Ltd.
v. Sanderton Ventures Ltd (2011) All FWLR (Pt. 602)
1735; Tanko v. UBA (2010) 11 SCM 119. He stated that
all Courts, except the Supreme Court, must consider all
issues before them. He referred to Tanko v. UBA (supra).
He maintained that the lower Court did not consider all the
issues before it which affected the appellant’s right to fair
hearing and its decision a nullity.
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On behalf of the first respondent, learned counsel
highlighted the proceedings leading to the judgment in the
suit. He noted that the appellant belatedly filed her further
affidavit, which she claimed was not considered, on the day
of the judgment, 27th May, 2011, and same was not before
the lower court. He reasoned that the parties were given
equal opportunity, but the appellant waived hers and
s h o u l d n o t c o m p l a i n . H e c i t e d Newswatch
Communications Ltd v. Atta (2006) All FWLR (Pt.
318) 380.
Learned counsel contended, per contra, that the appellant
was involved in the contract and was a proper and
desirable party. He relied on Ogbonda v. Nkanginieme
(2010) All FWLR (Pt. 502) 1034. He described the issue
of privity of contract as a novel one as it was not canvassed
in the lower Court and should be discountenanced. He cited
UBA v. Abacha Foundation for Peace and Unity (2003)
FWLR (Pt. 178) 978.
On points of law, learned counsel for the appellant asserted
that the issue of privity of contract affected the competence
of the lower Court to make binding decision on her and so a
jurisdictional issue which could be raised any time even
on appeal.
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Issue two
Learned counsel for the appellant submitted that based on
the available affidavit evidence, the lower Court ought to
have transferred the case to the general cause list for
determination on its merits. He took the view that the first
respondent admitted that the appellant was not a party to
the contract and that privity of contract denied it of the
jurisdiction over the appellant. He postulated that
evaluation of evidence was the duty of the lower Court. He
added that an appellate Court would interfere with
improper evaluation as happened in the lower Court. He
relied on Ayuya v. Yonrin (2011) 46 NSCQR 471. He
urged the Court to transfer the suit to the general cause list
for determination.
For the first respondent, learned counsel argued that
transferring the case to general cause list was at the
discretion of the lower Court. He described it as a matter of
fact not law. He relied on Obi v. Okeke (2010) All FWLR
(Pt. 531) 1565. He posited that an appellate would not
interfere with a discretion exercised judicially and
judiciously as happened in the lower Court. He referred to
Eno v. Nigeria Copyright Commission
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(2010) All FWLR (Pt. 547) 604. He pointed out that
refusal to transfer a suit to a general cause list was not
appealable. He cited Section 241 (2) of the Constitution, as
amended.
Resolution of the issues
The kernel of the appellant’s foremost complaint, after an
indepth study of the issue, is that she ought not be a party
to the suit on account of absence of privity of contract
between her and the first respondent. In reaction, the first
respondent registered a vehement objection to the
consideration of the point on the ground that it was not
canvassed in the lower Court.
The marrow of the protest is plain: that it is a fresh issue
which must not be raised before this Court without leave of
Court. A fresh issue is one which was not adjudicated and
pronounced upon by a lower Court whence an appeal
emanated, see Olalomi Ind. v. NIDB (2009) 16 NWLR
(Pt. 1167) 577; C. G. G. (Nig.) Ltd. v. Aminu (2015) 7
NWLR (Pt. 1459) 577. An appellate Court is not clothed
with the jurisdiction to entertain a fresh issue save with the
leave of court sought and obtained, see Odom v. INEC
(2015) 6 NWLR (Pt. 1456) 527;
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Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Yahaya
v. Dankwambo (2016) 7 NWLR (Pt. 1511) 284; Obasi
v. Mikson Est. Ind. Ltd. (2016) 16 NWLR (Pt. 1539)
335. Leave, in this context, connotes permission, see S.U.
Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v.
Ibekwe (1987) 4 NWLR (Pt. 67) 718 (1987) 2 NSCC
Vol.18, 1219; Garuba v. Omokhodion (2011) 14 NWLR
(Pt. 1269) 145; Otu v. ACB Int’l Ltd (2008) 3 NWLR
(Pt. 1073) 179.
However, this cardinal principle of law, that a fresh issue
cannot be attended to by an appellate Court except with
the leave of Court, is elastic. It admits of an exception. Its
rider is well – founded in the wide domain of jurisdiction. If
a new point borders on jurisdiction of a Court, a party has
the licence of the law to raise it on appeal without the leave
of court, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt.
905) 319; Moses v. State (2006) 11 NWLR (Pt. 992)
458; Owners M/V Gongola v. S. C. (Nig.) Ltd., (2007)
15 NWLR (Pt. 1056) 189; Opobiyi v. Muniru (2011) 18
NWLR (Pt. 1278) 387; C. G. G. (Nig.) Ltd. v. Aminu
(supra); Agbule v. W. R. & R. Co. Ltd. (2013) 6 NWLR
(Pt. 1350)
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CA)
318; Dangote Gen. Text. Prod. Ltd. v. Hascon Ass.
(Nig.) (2013) 16 NWLR (Pt. 1379) 60; NNPC v.
Orhiowasele (2013) 13 NWLR (Pt. 1371) 211; Salisu v.
Mobolaji (2014) 4 NWLR (Pt. 1396) 1; Unilorin v.
Adesina (2014) 10 NWLR (Pt. 1414) 159; Oni v.
Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80;
Sakati v. Bako (2015) 14 NWLR (Pt. 1480) 531; Wema
Sec. & Fin. Plc. v. N.A.I.C (2015) 10 NWLR (Pt. 1484)
93.
Unarguably, the plinth of the appellant’s grouse is that she
was not a proper party to be joined in the action. It is now
settled, beyond any peradventure of doubt, that an issue of
proper/improper parties touches and impinges on the
jurisdiction of a Court to entertain a matter in limine.
Indeed, “a person who asserts the right claimed or against
whom the right claimed is exercisable must be present to
give the Court the necessary jurisdiction”, see Olariede v.
Oyebi (1984) 1 SCNLR 390 at 406, per Eso, JSC;
Ekpere v. Aforiji (1972) 1 All NLR (Pt. 1) 220;
Onwunalu v. Osademe (1971) 1 All NLR 14; Awoniyi v.
Reg. Trustees of AMORC (2000) 10 NWLR (Pt. 676)
522; Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003)
466; Plateau State v. A.-G., Fed. (2006) 3 NWLR (Pt.
967) 346;
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Faleke v. INEC (2016) 18 NWLR (Pt. 1543) 61; G. & T.
Investment Ltd. v. Witts & Bush Ltd. (2011) 8 NWLR
(Pt. 1250) 500; Ogbebor v. INEC (2018) 6 NWLR (Pt.
1614) 1. The wisdom for such joinder of a party is to make
him bound by the result of the suit, see Babayeju v.
Ashamu (1998) 9 NWLR (Pt. 567) 546; Rinco Const.
Co. v. Veepee Ind. Ltd. (2005) 9 NWLR (Pt. 929) 85;
Carrena v. Akinlase (2008) 14 NWLR (Pt. 1107) 262;
P.W.T. (Nig.) Ltd. v. J.B.O. Int’l (2010) 18 NWLR (Pt.
1226) 1; APC v. Karfi (2017) 16 NWLR (Pt. 1592) 457.
Since the point falls, squarely, within the wide perimeter of
jurisdiction, the law grants the appellant the unbridled
latitude to raise it without leave of Court. It follows that the
appellant has not defiled the law by raising the issue of the
impropriety of joining her to the suit. On this score, this
Court is invested/equipped with ample vires to entertain
the issue. In the end, the objection, erected by the first
respondent to truncate the consideration of the point, is
lame. Accordingly, I overrule and dismiss it. I will proceed
to attend to the point on its merits.
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As already noted earlier, the meat of the appellant’s
complaint is that she was an improper party in the action.
She anchored/pegged her viewpoint on the absence of
privity of contract between her and the first Respondent.
By way of prefatory remarks, the ancient doctrine of privity
of contract has been defined as “that connection or
relationship which exists between two or more contracting
parties”, see Rebold Ind. Ltd. v. Magreola (2015) 8
NWLR (Pt. 1461) 201 at 231, per Fabiyi, JSC. The
doctrine, which is part of our corpus juris, postulates,
generally, that a contract cannot confer/bestow rights, or
impose obligations arising under it, on any person except
parties to it. Put simply, a stranger to a contract cannot
gain or be bound by it even if made for his benefit, see J. E.
Oshevire Ltd v. Tripoli Motors (1997) 5 NWLR (Pt.
503) 1/(1997) 4 SCNJ 246; Owodunni v. Registered
Trustees, CCC Worldwide (2000) 10 NWLR (Pt. 675)
315; Makwe v. Nwukor (2001) FWLR (Pt. 63)/(2001)
14 NWLR (Pt. 733) 356; Union Beverages Ltd v. Pepsi
Cola Int. Ltd (1994) 3 NWLR (Pt. 330) 1; UBA v.
Jargaba (2007) NWLR (Pt. 1045); Nwuba v. Ogbuehi
(2007) NWLR (Pt. 1072); Osoh v. Unity Bank Plc
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(2013) 9 NWLR (Pt. 1358) 1; Idufueko v. Pfizer
Products Ltd. (2014) 12 NWLR (Pt. 1420) 96; Rebold
Ind. Ltd. v. Magreola (supra); Reichie v. N.B.C.I
(2016) 8 NWLR (Pt. 1514) 274.
I have visited the record, the spinal cord of the appeal,
particularly in the residence of the processes filed by the
contending parties which colonize pages 1-56 of the record.
I have perused them meticulously. Admirably, they rebel
against ambiguity. The contract for the sale of the property
in question, Plot 1 Ikot Mbo Layout, Calabar, is embodied
in Exhibit A which is found at pages 5 and 6 and 33 and 34
of the record. The temporary sale agreement therein was
executed on 17th September, 2008, between the second
respondent and the first respondent as the transferor and
transferee of the property respectively. When the terms of
that contract could not be enforced to conclusion, following
its abortion by the appellant’s interference, there was an
agreement to refund the sum of N6m (Six Million Naira)
only paid to the second respondent by the first respondent
as reflected in Exhibit A. The second agreement on the
refund, executed on 1st July, 2009, tagged Exhibit C and
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located at pages 9 and 10 and 42 and 43 of the record, was
between the second respondent and the first respondent as
the seller and buyer of the property respectively. The
appellant signed as a witness. Thus, the appellant was not a
party to the contract in Exhibit A which led to the
alienation of the property. Similarly, she was not a party to
the refund agreement, showcased in Exhibit C,
notwithstanding that she witnessed it. The fact that a party
has witnessed an agreement, oral or written, does not, de
jure, translate him to a party to it.
It is discernible from the foregoing, that the appellant was
alien to the two contracts which were the casus belli of the
action which metamorphosed into the appeal. Put the other
way round, there was no privity of contract between the
appellant and the first respondent vis-a-vis the disposition
of the landed property. For this reason, I will not hesitate to
crown him with the toga of a stranger to the contract. In
the view of the law, a stranger to a contract is not endowed
with the locus standi to sue or be sued even when the
contract is for his profit/advantage.
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Put clearly, the appellant was not a necessary party to the
matter. In law, a necessary party to a proceeding, distinct
from a desirable party, is a person whose presence and
participation is essential for an effective and compete
determination of claim before a Court, see Green v. Green
(2001) FWLR (Pt. 76) 795; Babayeju v. Ashamu (1998)
9 NWLR (Pt. 567) 546; Cotecna Int’l Ltd v.
Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225)
346; P.W.T (Nig) Ltd. v. J.B.O Int’l (2010) 19 NWLR
(Pt. 1226) 1; ADC v. Bello (2017) 1 NWLR (Pt. 1545)
112; G.W.V.S. (Nig.) Ltd. v. Nigeria LNG Ltd. (2017) 8
NWLR (Pt. 1568) 381.
In so far as the Appellant was an improper party to the suit,
the lower Court was drained of the requisite jurisdiction to
entertain it as it affected her only. The consequence is far
reaching. The order the lower Court made against the
appellant is well-rooted in nullity. In the sight of the law,
nullity denotes: “Nothing; no proceeding; an act or
proceeding in a case which the opposite party may treat as
though it had not taken place; or which has absolutely no
legal force or effect”, see Lasisi v. State (2013) 12
NWLR (Pt. 1367) 133 at 146, per Ngwuta JSC,
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Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485;
Mamman v. Hajo (2016) 8 NWLR (Pt. 1575)
411. Nullity possesses caustic consequences in law. If a
decision or proceeding is infested with nullity, it is void and
taken as it was never given or made, see Okoye v. Nigeria
Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199)
501; Bello v. INEC (2010) 8 NWLR (Pt. 1196)
343. Moreover, such a decision or proceeding, in the
domain of the law, donates no enforceable right on its
beneficiary party who possesses it nor does it impose any
obligations on its victim party, see Ajiboye v. Ishola
(2006) 13 NWLR (Pt. 998) 628; Oyeneyin v.
Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The
bounden duty of a Court is to set aside a null order ex
debito justitiae in that it does not exist in law, see
Mamman v. Hajo (supra); N.A.C.B. Ltd. v. Ozoemelam
(2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye
(2017) 12 NWLR (Pt. 1580) 364.
For the sake of completeness and clarity, having found,
after due consultation with the law, that the appellant was
an improper party to the suit, all the castigations which the
appellant rained against the lower Court’s
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evaluation of the affidavit evidence before it pale into
insignificance. In the same vein, the appellant’s allegation
of erosion of her inviolable right to fair hearing by the
lower Court comes to naught and unworthy of
consideration.
As long as the lower Court’s decision over the Appellant
was hostile to the law, it must be mowed down by the
unbiased judicial sword of this Court. In the end, I have no
option than to resolve the issue one in favour of the
appellant and against the respondents.
At once, flowing from the outcome of issue one, the
appellant’s issue two falls within the constricted four walls
of academic issue. In Plateau State v. A-G., Fed (2006) 3
NWLR (Pt. 967) 346 at 419, Tobi, JSC, incisively,
explained the term, thus:
A suit is academic where it is merely theoretical,
makes empty sound, and of no practical utilitarian
value to the plaintiff even if judgment is given in his
favour. A suit is academic if it is not related to
practical situation of human nature and humanity.
It is settled law, that a Court is divested of the necessary
jurisdiction to adjudicate over academic disputes.
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Such academic questions are divorced from live issues
which engage the adjudicative attention of the Courts. This
is so even if their determination will enrich the
jurisprudential content of the law, see A.-G., Anambra
State v. A.-G., Fed. (2005) 9 NWLR (Pt. 931) 572;
Ugba v. Suswan (2014) 14 NWLR (Pt. 1427) 264; Salik
v. Idris (2014) 15 NWLR (Pt. 1429) 36; FRN v.
Borishade (2015) 5 NWLR (Pt. 1451) 155; Danladi v.
T.S.H.A. (2015) 2 NWLR (Pt. 1442) 103; FRN v. Dairo
(2015) 6 NWLR (Pt. 1452) 141; Daniel v. INEC (2015)
9 NWLR (Pt. 1463) 113; Odedo v. Oguebego (2015) 13
NWLR (Pt. 1476) 229; Dickson v. Sylva (2017) 10
NWLR (Pt. 1573) 299; Olowu v. Building Stock Ltd.
(2018) 1 NWLR (Pt. 1601) 343.
Having regard to this current inelastic position of the law,
the appellant’s issue two is, to all intents and purposes,
rendered idle. The raison detre for its being spent is not
far-fetched. Its consideration by this Court, even if found in
favour of the appellant or the respondent, will be of no
judicial utilitarian value to either of them premised on the
result of issue one. Besides, it is trite that Courts are not
clothed/cloaked with the jurisdiction to adjudicate
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over academic suit/issues. In total fidelity to the law, I
strike out issue two for want of legal justification to treat it.
On the whole, having resolved the solitary issue in favour of
the appellant, the fortune of the appeal is obvious. It is
partly meritorious and succeeds partially. Consequently, I
allow the appeal in part. Accordingly, the name of the
appellant, Mrs. Julie Ndubisi Oguebie, is struck out of
the first respondents suit: Suit No. HCJ14/2011. For the
avoidance of doubt, the other portions of the decision of the
lower Court stand. The parties shall bear the respective
costs they incurred in the prosecution and defence of the
appeal.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the
privilege of reading in draft the judgment delivered by my
learned brother, Obande Festus Ogbuinya, JCA. I agree
with the reasoning and conclusion. I also allow the appeal
in part. I abide with the consequential Orders and the
Order as to costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the
privilege of reading in draft the judgment just delivered by
my learned brother, OBANDE F. OGBUINYA, JCA.
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My learned brother meticulously resolved all the issues
raised in the appeal. I agree with the reasoning and
conclusion arrived at. I have nothing to add.
I allow the appeal in part and abide by the orders made
therein.
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Appearances:
O. K. Elias, Esq. For Appellant(s)
No representation for the first respondent.
No representation for the second respondent.For Respondent(s)
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