NWAMBA v. AJOBIEWE (2020)

NWAMBA v. AJOBIEWE

(2020)LCN/14401(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/L/305/2014

Before Our Lordships:

Jamilu Yammama Tukur Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

MR LINUS NWAMBA APPELANT(S)

And

EZEKIEL AJOBIEWE RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT MUST FIRST CONSIDER A PRELIMINARY OBJECTION BEFORE GOING TO THE MERIT OF THE CASE

The law is trite that once there is a preliminary objection, a Court must first consider the preliminary objection before going on to the merit of the appeal if need be. See A.G. Lagos State vs. A.G. Federation & Ors (2014) 4 SC (Pt. II) 1. This is because once the preliminary objection succeeds, it brings an end or terminates further consideration of the merit of the appeal. See Petgas Resources Ltd vs. Mbanefo (2017) LPELR-42760 (SC).
The success of a preliminary objection will make further consideration of the case a complete waste of time and resources. It only makes all effort put into the case a complete waste and uneventful. It is therefore reasonable and makes good sense to deal with the preliminary objection first. PER TOBI, J.C.A.

WHETHER OR NOT A PARTY IS ALLOWED TO RAISE PRELIMINARY OBJECTION IN HIS BRIEF WHEN NO NOTICE WAS FILED

The law allows a party to raise preliminary objection in his brief even when no notice was filed but before he can argue same it must be stated clearly as a preliminary objection before the appeal is heard, the Respondent must mention to the Court that he has a preliminary objection which he has argued in the brief, failure to do that implies that the preliminary objection has been abandoned. The Apex Court drove this point home in Lagga vs. Sarhuna (2008) 16 NWLR (Pt. 1114) 427 per Ogbuagu, JSC held:
“I note that the respondent did not file any notice of preliminary objection. Even in the said brief, it is not a notice of preliminary objection stating the grounds relied on for such objection pursuant to Order 2 Rule 9 of the Rules of this Court. Sub-rule 2 states that if a respondent fails to comply with this rule, the Court may refuse to entertain the objection or adjourn the hearing with costs or make such other order it thinks fit. In the respondent’s brief, it is just headed “3 or PRELIMINARY OBJECTION “. I am aware firstly, that in the case of Chief Agbaka & 3 Ors. v. Chief Amadi & Anor. (1998) 11 NWLR (Pt.572) 16 at 25; (1998) 7 SCNJ. 367 at 375, it was held that the notice given in the respondent’s brief, does not dispense with the need to file such notice, but that it does not deprive the Court of doing certain things like the Court drawing the attention of the appellant’s counsel to the incompetent ground of appeal. Secondly, I am also aware that the purpose of giving notice of preliminary objection, is to give the adversary, an opportunity of reacting to the objection and to avoid any element of surprise. See also Agbaka ‘s case (supra) and the case of Auto Import Export v. Adebayo & 2 Ors . (2002) 18 NWLR (Pt.799) 554; (2002) 12 SCNJ. 124 at 139; (2002) 103 LRCN 2397. PER TOBI, J.C.A.

THE BASIC REQUIRMENTS FOR WRITING A JUDGMENT

In spite of that however, there are some basic requirements of judgment writing. That is to say there are certain characteristics that a good judgment should contain. The Apex Court drove home this point in a cloud of cases. I will mention a case or two. In Mbanefo vs. Molokwu & Ors (2014) LPELR-22257 (SC) Peter-Odili, JSC at pages 44-45 held:
“It is trite that there is no hard and fast standard in the style or writing of a judgment. Every judge has the freedom to use the style or method suitable for his purpose, I dare say a peculiar style which enables him perform that duty of judgment writing without undue fuss or stress. In doing that however, it is necessary to remind himself that the components of a proper judgment must be present and equally show that the judgment was a fair, impassionate consideration of how the verdict came to be open from his evaluation of the materials put up by the parties. Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) 158 at 195; Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24; Ciroma v. Ali (1999) 2 NWLR (Pt. 590) 317; N.B.C. Plc v. Borgundu (1999) 2 NWLR (Pt. 591) 408; Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527.”
I find it difficult to resist what this Court said in the case of Duru vs. Nwosu (1989) 4 NWLR (Pt. 113) 24 at 55 per Nnaemeka-Agu, JSC:
“This is why I think it is not too late to say that there is no set standard or set approach to the writing of judgments. For over the years not only have definite parts of a good judgment emerged although they remain usually unnamed, but in particular, there is now only one method for evaluation of evidence in a civil case. Every good judgment begins with an introduction of the parties and the nature of the action, states the issues in controversy, summons up the evidence called by each party, resolves the issues in controversy, and, based upon such resolution of issues, reached a verdict and makes consequential Orders.”PER TOBI, J.C.A.

WHETHER OR NOT THE AWARD OF COST IS AT THE DISCRETION OF THE COURT

The award of cost is within the discretion of a Court and the appellate Court cannot interfere with the exercise of discretion by the lower Court except it is perverse. See G.K.F. Investment (Nig) Ltd vs. N.I.T.E.L. Plc (2009) LPELR-1294(SC). In Williams vs. State (1992) LPELR-3492 (SC), the Apex Court held in this wise:
“It is settled by a chain of authorities that an appellate Court will not disturb the findings of fact of a trial Court relating to credibility of witnesses and evaluation of evidence which are matters within the knowledge of the trial Judge who alone saw and heard the witnesses unless of course such findings are perverse and not justified by the evidence (See for example Okobi v. The State (Supra), Akinloye v. Eyiyola (Supra).”
Similarly, in FRN vs. Iweka (2011) LPELR-9350 (SC), the Supreme Court reiterating this principle held:
“An appellate Court which does not have that opportunity of hearing and watching the demenour of the witnesses should therefore be weary to interfere with a finding of a trial Court on the credibility of a witness. See ASANYA Vs STATE (1991) 3 NWLR (part 180) 422; POPOOLA vs ADEYEMO (1992) 8 NWLR (part 257) 1.” PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Hon. Justice S.O. Nwaka of the Lagos State High Court delivered on 10/2/2012 wherein the application of the Appellant brought under Order 7 Rule 7(2) of the Judgment Enforcement Rules Cap 56 Revised Law of the Federation 2004 and Order 2 Rule 12(b) of the Judgment Enforcement Rules Cap 56 LFN 2004 for the enforcement of and execution of an earlier judgment of the High Court of Lagos State was dismissed. The lower Court awarded N50,000 cost against the Appellant. Dissatisfied with the judgment, the Appellant filed this appeal on 5/3/2013 with 4 grounds contained on pages 1-4 of the additional record of appeal.

The Appellant counsel who settled the Appellant’s brief is Chief Aloy Ezenduka, the said brief filed on 11/5/2016 was deemed on 8/6/17. The Appellant raised two issues for determination thus:
1. Whether the trial Court was not in error in refusing to enforce the order of Court made by Coker J on the 23rd day of November, 2006 restraining the Defendants, their heirs, Agents, servants or privies from ejecting, removing or

disturbing the quiet and peaceful enjoyment or in any such other way, the property ( a bungalow) with appurtenance lying at No 7 Brambaifa Street, Ajegunle, Lagos State until the determination of this suit.
2. Whether the Trial Court was not in error when it awarded the cost of N50,000 against the Appellant and in favour of the Respondent.

In addressing issue 1, it is the submission of counsel that the lower Court did not address the issues for determination in the application before it but rather went into irrelevancies and matters in the substantive matter and therefore arrived at a perverse decision which occasioned a miscarriage of justice and therefore the decision should be set aside as it is not based on the facts before the Court. The lower Court, counsel submitted, failed in its duty to ensure that all issues raised in an application should be considered by a Court of law. Learned counsel referred to Udengwu vs. Uzuegbu (2003) 9 MJSC 70; Alhaji Muhammadu Maigafu Dingyadi & Anor vs. INEC 2 Ors (2010) 4-7 SC (Pt. 1) 76; Lahan vs. Aremu (1966) 4 NSCC 109; Bornu Holding Company Ltd vs. Bogoco (1971) 7 NSCC 321.

Learned counsel to the

Appellant submitted that the order which the lower Court ought to give enforcement to are the judgments of Coker J. and Oyebanji J. which are to the effect that the status quo should be maintained. The status quo according to counsel is allowing the Appellant to stay in the property and to avoid a situation where the action will be fait accompli and the decision of the Court untenable. The earlier decisions of the High Court of Lagos are valid since it has not been set aside. He referred to Akapo vs. Hakeem (1993) 9 NWLR (Pt. 315) 97; Sun Insurance (Nig) Plc vs. LMBS Ltd (unreported) Appeal NO. FCA/1/110/82 delivered on 24th August 1983; Rossek vs. ACB (1993) 8 NWLR (Pt. 312) 382; Ifekwe vs. Mgbaho (1990) 3 NWLR (Pt. 140) 588; SPDC Ltd vs. Edamkue & Ors (2009) 7 MJSC (Pt. 1) 194. It is the submission of counsel that what the lower Court did was like varying the decision of a Court of coordinate jurisdiction referring to Amanambu vs. Okafor (1966) 1 ANLR 205 at 207; Uku vs. Okumagba (1974) 1 ANLR (Pt. 1) 475; Wimpey (Nig) Ltd & Anor vs. Alhaji Balogun (1986) 3 NWLR (Pt. 28) 324; Kubor vs. Dickson (2013) 4 NWLR (Pt. 1345) 534.

On issue 2 after stating

the purpose of awarding cost which according to counsel is to compensate the other party and not to be punitive to the losing party, counsel submitted that the cost of N50,000 was given in error. He referred to Akinbobola vs. Plisson Fisko (Nig) Ltd (1991) 1 NWLR (Pt. 167) 270.

Learned counsel finally urged the Court to allow the appeal, set aside the order of the lower Court and grant the reliefs sought in the appeal.

The Respondent’s counsel, H.O. Ogungbamilia Esq. settled the brief of the Respondent who was 4th Defendant in the lower Court. The brief was filed on 24/11/2016 and deemed on 8/6/17. Counsel raised two issues for determination, these are:
1. The Respondent hereby raises by way of preliminary objection an issue whether there is a competent Notice of Appeal in this matter.
2. In unlikely event of this Court finding otherwise the Respondent raise an issue whether the trial Court was justified in his ruling in this matter.

The Learned Counsel submitted that the notice of appeal is incompetent and therefore it should be struck out. The notice of appeal according to counsel was filed out of time and since no leave was

obtained before filing the notice of appeal, the notice should be struck out. He referred to Muhammed vs. Kayode (1997) 11 NWLR (Pt. 530) 584; NNPC vs. Odidere Enterprises Nig. Ltd (2008) 8 NWLR (Pt. 1090) 583. The notice of appeal filed before the leave is granted will not be competent, counsel submitted relying on Oshiannie vs. Erhumwanse (1993) 3 NWLR (Pt. 283) 609. It is counsel’s submission that this Court has no jurisdiction to entertain this appeal.

On issue 2, it is the submission of counsel that the Respondent has carried out the order of the Hon. Justice A.A. Coker in that the counsel to the Appellant (Claimant in the lower Court) had sent a letter and the cost awarded by the Court to Appellant to return to the house and occupy same. In the circumstance, counsel submitted that there is no pending order that the lower Court needed to enforce. He finally urged this Court to dismiss the appeal.

The Appellant did not file any reply brief. The facts that culminated in this appeal is that the Appellant, as Claimant in the lower Court filed an action against the 1st – 3rd Respondents for reliefs ranging from declaration to monetary sum. The

Respondent was joined as 4th Defendant in the substantive suit filed as LD/48/05. This suit was before Justice Coker. The motion filed on 22/7/2005 along with the writ was for an injunction. The Hon. Justice Coker made the following order on 23/11/2005 found on page 145 of Vol. 1 of the record of appeal:
“IT IS HEREBY ORDERED:
1. Prayer 1 is struck out as overtaken.
2. An order restraining the Defendants, their Heirs, Agents, Servants or privies from ejecting, removing or disturbing the quiet and peaceful enjoyment or in any such other way, the property ( a bungalow) with appurtenance lying at No. 7, Brambaifa Street, Ajegunle, Lagos State until the determination of this suit.”

This order appeared not to have been obeyed which subsequently led to the Respondent being sent to prison for 10 months for contempt of Court. On 23/5/2011, the Appellant brought a motion before Hon. Justice Oyebanji seeking for an order similar to the prayer sought in the motion whose ruling is on appeal in this Court. The motion basically is seeking for an order to enforce the order of Hon. Justice Coker of the Lagos High Court made on 23/11/2005. Hon.

Justice Oyebanji held thus after listening to counsel on pages 4-5 of the ruling (pages 473-474 of the records):
“From the records of the Court, the contemnor was convicted on 14th March, 2007. The contemnor has paid to the Claimant the N10,000 costs awarded by the Court, also vacated the rooms and sent a letter to the Claimant’s counsel inviting the Claimant to return to the rooms, the Claimant’s counsel has not denied that the conditions imposed by the Court have been complied with…..
However, the contemnor having served more than the term imposed by law, the Court has decided not to order that he be again remanded in prison. The Court is however in agreement with the learned Counsel for the Claimant that status quo as at the date of the order of interlocutory injunction should be maintained.
Accordingly, the Court hereby orders that status quo as at 23rd day of November, 2006 when the order of injunction was made be maintained until the determination of this suit.”

The warrant of possession was presented to Hon. Justice Oyebanji who refused to sign same hence the application before Justice Nwaka was filed.

In the ruling delivered on 10/2/2012 the lower Court in dismissing the application held:
“I have listened to counsel on both sides and have critically gone through the rulings of my sister Judge more so the conditions as set down by Hon. Justice Coker for the contemnor who happens to be the 4th Defendant in this substantive suit and Respondent in this motion to be released from custody. The ruling of Hon. Justices A.A. Oyebanji of 12th March 2010 is confirmed the fact that the condition imposed on the Respondent had been complied with as there was no denial as to such.
This is a case instituted in January 2005 which is yet to see the light of day because of the application filed for one reason or the other. I find this present motion as unnecessary and a sheer waste (sic) time of this Honourable Court. I am of the (sic) that the substantive case should and ought to be heard without much ado.
In view of the above observation (sic) motion on notice dated 20th May 2011 is hereby dismissed with a cost of N50,000 in favour of the 4th Defendant? Respondent. I so rule.”

This is the decision the Appellant is appealing against. The

grounds of appeal as contained on pages 1-4 of the additional record of appeal are as follows:
GROUND 1: ERROR IN LAW
The learned trial Judge erred in law when he failed to consider the issues for determination brought before him for consideration by the parties in his ruling dated 10th February, 2012 and thereby arrived at a perverse decision.
GROUND 2: MISDIRECTION IN LAW
The learned trial Judge misdirected himself in law, when in dismissing the Applicant/Appellant’s application held that “The ruling of Hon. Justice A.A. Oyebanji dated 12th March, 2010 confirmed the fact that the condition imposed on the Respondents had been complied with…” without considering the concluding part of Hon. Justice A.A. Oyebanji’s ruling that says “Accordingly, the court hereby orders that status quo as at 23rd day of November, 2006 when the order of injunction was made be maintained until the determination of this suit” and thus failed in totality to interpret the purport of the interlocutory order of Coker J. sought to be enforced by the application before the Court.
GROUND 3: ERROR IN LAW
The learned

trial Judge erred in law when he awarded a cost of N50,000 in favour of the Respondent against the Applicant.
GROUND 4: PERVERSITY OF THE ENTIRE RULING
That the entire ruling of the learned trial Judge, is perverse and against the weight affidavit evidence before it and the issue distilled for determination by the parties were never considered in any way.

Before I look at the issues formulated for determination, I will need to look at the preliminary issue raised for determination by the Respondent as it relates to the competence of the Notice of Appeal. The law is trite that once there is a preliminary objection, a Court must first consider the preliminary objection before going on to the merit of the appeal if need be. See A.G. Lagos State vs. A.G. Federation & Ors (2014) 4 SC (Pt. II) 1. This is because once the preliminary objection succeeds, it brings an end or terminates further consideration of the merit of the appeal. See Petgas Resources Ltd vs. Mbanefo (2017) LPELR-42760 (SC).
The success of a preliminary objection will make further consideration of the case a complete waste of time and resources. It only makes all effort put

into the case a complete waste and uneventful. It is therefore reasonable and makes good sense to deal with the preliminary objection first.

The first thing I wish to consider is the competence of the preliminary objection itself. The law has stated how preliminary objection can be raised in a suit. The term preliminary objection means as the name depicts, it is an objection raised that deals with issues before the actual trial or before considering the merit of the appeal. The party raising the preliminary objection has the duty not to take the other party by surprise but rather give the other sufficient notice to respond to the preliminary objection. Order 10 Rule 1 of the Court of Appeal Rules 2016 makes provision for how a preliminary objection is raised in the Court of Appeal. The section provides thus;
“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
By the above provision,

the way to raise the preliminary objection usually is by a notice of preliminary objection. The rule provides that the notification of the preliminary objection must be communicated to the Appellant within three days before the appeal is heard. The objection must set out the grounds of the objection. If this procedure is not followed the Court may decide not to hear the preliminary objection. See Bobai vs. Achi & Anor (2015) LPELR-25901 (CA); Uwazurike & Ors vs. AG Federation (2007) LPELR-3448 (SC).
The implication of this is that even if a preliminary objection is improperly raised, a Court can still hear same provided the other party had opportunity to respond to the objection. The Apex Court made this point in Odedo vs. INEC & Ors (2008) 17 NWLR (Pt. 1117) 554, the Apex Court held:
“A preliminary objection cannot be raised in that subtle and uneventful way. Learned Senior Advocate for the appellant is correct when she submitted in her Reply Brief that the preliminary objection was improperly raised. The practice, and the accepted practice for that matter, is that preliminary objection in a Brief is raised in a conspicuous title

in the name and style of “preliminary objection”. Thereafter the grounds and the arguments of or for the objection are stated and argued in the Brief……..Although counsel did not properly raise the preliminary objection, I shall not ignore it in the way I have ignored the case in view of the fact that I know the content of the objection. It is that the ground of appeal did not arise from the judgment of the High Court.”
The Respondent here did not file a notice of preliminary objection but argued the preliminary objection in his brief. The law allows a party to raise preliminary objection in his brief even when no notice was filed but before he can argue same it must be stated clearly as a preliminary objection before the appeal is heard, the Respondent must mention to the Court that he has a preliminary objection which he has argued in the brief, failure to do that implies that the preliminary objection has been abandoned. The Apex Court drove this point home in Lagga vs. Sarhuna (2008) 16 NWLR (Pt. 1114) 427 per Ogbuagu, JSC held:
“I note that the respondent did not file any notice of preliminary objection. Even in the said

brief, it is not a notice of preliminary objection stating the grounds relied on for such objection pursuant to Order 2 Rule 9 of the Rules of this Court. Sub-rule 2 states that if a respondent fails to comply with this rule, the Court may refuse to entertain the objection or adjourn the hearing with costs or make such other order it thinks fit. In the respondent’s brief, it is just headed “3 or PRELIMINARY OBJECTION “. I am aware firstly, that in the case of Chief Agbaka & 3 Ors. v. Chief Amadi & Anor. (1998) 11 NWLR (Pt.572) 16 at 25; (1998) 7 SCNJ. 367 at 375, it was held that the notice given in the respondent’s brief, does not dispense with the need to file such notice, but that it does not deprive the Court of doing certain things like the Court drawing the attention of the appellant’s counsel to the incompetent ground of appeal. Secondly, I am also aware that the purpose of giving notice of preliminary objection, is to give the adversary, an opportunity of reacting to the objection and to avoid any element of surprise. See also Agbaka ‘s case (supra) and the case of Auto Import Export v. Adebayo & 2 Ors . (2002) 18 NWLR (Pt.799) 554; (2002)

12 SCNJ. 124 at 139; (2002) 103 LRCN 2397. Thirdly, I am also aware as this is settled, that the failure to bring the Notice in accordance with the above Order, does not render such notice ineffective. This underscores the fact that it is a Notice that must be filed or raised in a respondent’s brief. See the case of Alhaji Maigoro v. AIhaji Garba (1999) 7 SCNJ. 270 at 282. Fourthly, a notice. of preliminary objection, can be given in the Respondent’s brief. But a party filing it in the brief, must ask the Court for leave to move the notice, before the oral hearing of the appeal commences otherwise, it will be deemed to have been waived and therefore, abandoned – See the case of Oforkire & Anor v. Maduike & Ors (2003) 5 NWLR (Pt. 812) 166 at 178 – 179; (2003) 1 SCNJ. 440, 448.”
The Respondent in the brief did not raise the incompetence in the notice as a preliminary objection in the brief. There is no heading of preliminary objection in the brief and before the hearing of the appeal, counsel did not notify the Court he had a preliminary objection to argue. That apart, the Respondent raised it as an issue for determination

when there was no ground of appeal in the notice that the issue could be formulated from. The law is that an issue not arising from a ground of appeal is incompetent. See Lalapu vs. C.O.P (2019) LPELR-47814 (SC).
The defect in the preliminary object is such that this Court cannot ignore. The preliminary objection is not competent it is therefore struck out. A party who is challenging the competence of a process or procedure should also ensure that he adheres strictly to the procedure.

Having disposed of the preliminary objection, I will now look at the merit of the appeal. I will in so doing adopt the issues formulated by the Appellant. For completeness, I will reproduce the issues which I had earlier mentioned above. The issues for determination in this appeal are therefore:
1. Whether the trial Court was not in error in refusing to enforce the order of Court made by Coker J on the 23rd day of November, 2006 restraining the Defendants, their heirs, Agents, servants or privies from ejecting removing or disturbing the quiet and peaceful enjoyment or in any such other way, the property ( a bungalow) with appurtenance lying at No 7 Brambaifa

Street, Ajegunle, Lagos State until the determination of this suit.
2. Whether the Trial Court was not in error when it awarded the cost of N50,000 against the Appellant and in favour of the Respondent.

I will now address issue 1. The order that the lower Court was called upon to enforce was the order made by Coker, J. on 23/11/2005 and the subsequent order made by Oyebanji, J. For the avoidance of doubt I will reproduce the orders again. The order of Coker, J. reads as follows:
“IT IS HEREBY ORDERED:
1. Prayer 1 is struck out as overtaken.
2. An order restraining the Defendants, their Heirs, Agents, Servants or privies from ejecting, removing or disturbing the quiet and peaceful enjoyment or in any such other way, the property ( a bungalow) with appurtenance lying at No. 7, Brambaifa Street, Ajegunle, Lagos State until the determination of this suit.”

The purport and intent of the orders are clear and not open to double interpretation. The order restrains the Defendants (Respondents in this appeal) and their assigns which by necessary interpretation include the Respondent from “ejecting, removing or disturbing

the quiet and peaceful enjoyment of the subject property. This order will not be violated if the Respondent did not eject or remove the Appellant from the property. The order did not say anything about putting the Appellant (Claimant in the lower Court) on the property or removal of the Respondent on the property except if the Respondent’s stay on the property will affect the peaceful enjoyment of the Appellant on the property.

The above order was revalidated by Oyebanji, J. on 27/3/2009 when his lordship held:
“Accordingly, the Court hereby orders that status quo as at 23rd day of November, 2006 when the order of injunction was made be maintained until the determination of this suit.”

The order again is clear and it is that the status quo as at 23/11/2006 should be maintained. The Appellant went to Oyebanji, J. to sign the writ of possession, the refusal of his lordship to sign the writ of possession necessitated the motion which Nwaka, J. ruled on which is on appeal. The motion is found on pages 466-468 of the records. The affidavit in support of the motion and the annexures therein are found on pages 467-474 of the records.

The Respondent filed a counter-affidavit found on pages 479-483 of the records. The main issue in the affidavit evidence before the Court was to decide whether the Appellant was entitled to the reliefs sought. For clarity, the reliefs reads:
“The Appellant hereby seeks the following reliefs:
a. That the Court of Appeal do allow the appeal.
b. That the Court of Appeal do set aside the ruling and orders of the learned trial Judge S.O. Nwaka (Mrs.) made on the 10th of February, 2012.
c. That the Court of Appeal do set aside the cost of N50,000.00k made against the Appellant and in favour of the Respondent.
d. That the Court of Appeal do make an order against the Respondent enforcing the order of status quo made by the Hon. Justice A. J. Coker (Mrs.) on the 23rd day of November, 2005 by Writ of Possession, which order is still subsisting and a further order directing the deputy Sheriff of the High Court of Lagos State to deliver the entire bungalow at No. 7 Brambaifa Street, Ajegunle, Lagos State to the Appellant forthwith.
e. That the Court of Appeal should enter default judgment against the Defendant/Respondent for failing to

fulfill the interlocutory order of lower Court made by A. Coker dated the 23rd day of November, 2005.
f. That the suit be remitted back to the Chief Judge of Lagos State for definite and accelerated hearing.”

The Appellant’s case at the lower Court was that he is entitled to the reliefs in the motion because the Court has decided the case in his favour and therefore the reliefs should be granted. On the other hand, the Respondent’s case is that the Appellant is not entitled to the reliefs since there is no order that has been violated by the Respondent. The violated order he has been punished for and therefore there is nothing to decide here.

The Appellant’s case in this appeal is that the lower Court has not addressed the issues that were placed before it for determination. I agree entirely with the Appellant’s counsel. While I agree, I must state that the style a Judge uses to write a judgment is exclusive to the Judge and no appellate Court has a right to condemn the style any Judge uses in writing his judgment. I will not challenge the style of his lordship Hon. Justice S.O. Nwaka. That I would have written the

judgment with a different style and more robust in addressing the issue does not make the style of his lordship wrong. See Oloruntoba vs. GTB (2020) LPELR-49586 (CA); Ajiboye vs. FRN (2018) LPELR-44468 (SC).
In spite of that however, there are some basic requirements of judgment writing. That is to say there are certain characteristics that a good judgment should contain. The Apex Court drove home this point in a cloud of cases. I will mention a case or two. In Mbanefo vs. Molokwu & Ors (2014) LPELR-22257 (SC) Peter-Odili, JSC at pages 44-45 held:
“It is trite that there is no hard and fast standard in the style or writing of a judgment. Every judge has the freedom to use the style or method suitable for his purpose, I dare say a peculiar style which enables him perform that duty of judgment writing without undue fuss or stress. In doing that however, it is necessary to remind himself that the components of a proper judgment must be present and equally show that the judgment was a fair, impassionate consideration of how the verdict came to be open from his evaluation of the materials put up by the parties. Trade Bank Plc v. Chami (2003) 13

NWLR (Pt. 836) 158 at 195; Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24; Ciroma v. Ali (1999) 2 NWLR (Pt. 590) 317; N.B.C. Plc v. Borgundu (1999) 2 NWLR (Pt. 591) 408; Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527.”
I find it difficult to resist what this Court said in the case of Duru vs. Nwosu (1989) 4 NWLR (Pt. 113) 24 at 55 per Nnaemeka-Agu, JSC:
“This is why I think it is not too late to say that there is no set standard or set approach to the writing of judgments. For over the years not only have definite parts of a good judgment emerged although they remain usually unnamed, but in particular, there is now only one method for evaluation of evidence in a civil case. Every good judgment begins with an introduction of the parties and the nature of the action, states the issues in controversy, summons up the evidence called by each party, resolves the issues in controversy, and, based upon such resolution of issues, reached a verdict and makes consequential Orders.”
One more case will not be out of place. This is the case of Ogolo & Ors vs Ogolo & Ors (2003) 12 S.C (pt I) 56; Katsina- Alu, JSC (as he then was held):<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“It is no longer in doubt that writing a judgment is an art and as such each Judge is entitled to and free to follow his own style in achieving the end result. However, there are certain essential components which a good judgment must incorporate inter alia, set out the nature of the action before the Court; the issues in controversy; a review of the case for the parties; a consideration of the relevant law raised and applicable to the case; specific findings of the fact, and conclusions. The reasons for arriving at the conclusions must also be stated. As there should be no fixed or right form of embarking on the process of achieving the end result stated above, what is, however, most essential is that the Judge should show a clear understanding of the facts and issues raised in the case, the law applicable; and from all these, he should be able to arrive at a conclusion deciding all the issues in controversy in the case before him. See Onuoha v. The State (1988) 2 S.C. (Pt. II) 115; (1988) 3 NWLR 9 (Pt. 83) 460; Igwe v. Alvan Ikoku College of Education, Owerri (1994) 8 NWLR (Pt. 363) 459 at 480-481; Adeyemo v. Arokopo (1988) 2 NWLR (Pt. 79) 703;

Imogiemhe v. Alokwe (1995) 7 NWLR (Pt. 409) 581 at 593; and Akinfolarin v. Ademola (1994) 3 NWLR (Pt. 335) 659.”
With respect to his lordship, the 2-page ruling did not take into consideration the essential components of a good judgment. Let me hasten to say that, this does not make the Judge a bad Judge but the lower Court being a superior Court of record, the Judge would have done a better job.
This may just be the appropriate place to address an issue of some great importance to our profession, howbeit obiter. I feel a sense of obligation to comment on the language that counsel to the Appellant used in describing the judgment which in my opinion attacked the character of the Judge. It is a mark of bad practice for a lawyer to describe a Judge in his brief as lazy. This is unacceptable and cannot be encouraged by any Court. Legal practitioners are to understand that disrespect to a Court or Judge is disrespect to the institution that the Judge represents. This kind of practice is condemned. A lawyer does not score a point by bringing down a Judge or a Court. This is bad practice. A legal practitioner should be mindful of the language used in

Court and concerning a Judge. See Magna Maritime Services Ltd & Anor vs. Oteju & Anor (2005) LPELR-1817 (SC).
The language Appellant’s counsel used on page 8 of the Appellant brief is not appropriate. To say the lack of appreciation of the principle of law by a Court “shows laziness and nonchalant attitude” is to say the least most disrespectful. I condemn that and hope that counsel will learn to be more civil in his language not only to the Court but to his colleagues and generally in life. The right to appeal does not give counsel the right to insult, degrade and attack a Judge. A lawyer does not score a point in his appeal by insulting a Judge or indeed criticizing the Judge. To criticize a Judge is not one of the duties of a counsel on appeal, the duty of counsel is to argue his appeal by convincing the appellate Court to overturn the judgment using the law. This is not a blank cheque to lawyers to insult judicial officers. This is most uncultured and unnecessary. On appeal, one criticizes the judgment of the lower Court and not the Judge.

Having said that, I must admit that his lordship should have done a better job of the ruling as clearly his lordship did not in the ruling follow the principle of a good judgment. The lower Court did not even address the motion and the affidavit evidence before it. In the circumstance, I have the power under Section 15 of the Court of Appeal Act to consider whether the application should have succeeded. The question in this appeal is, what is the order that must be enforced and whether the order is yet to be enforced. I had reproduced the two orders above, that is, that of Coker, J. and Oyebanji, J., there is effectively one order which is to be enforced, that is the order of Coker, J. as the order of Oyebanji, J. only reinforces the order of Coker, J. I had mentioned above the purport and the implication of the order. For the avoidance of doubt, I state again, the order only states that the Respondent should not eject, remove, or interfere with the peaceful enjoyment of the property by the Appellant. Is this order subsisting which need to be enforced? I cannot seem to hold that view as the affidavit evidence showed that the Appellant had since been

informed that he can move back to the property. The Respondent at paragraphs 15 & 16 of the counter affidavit to the application before the lower Court had deposed to compliance with the order. This is on page 480 of the records. The letter is on page 486 of the records. The Appellant did not deny this fact. In the circumstance what order is the Appellant seeking to be enforced. I agree with the lower Court when his lordship said on page 2 of the judgment (page 580 of the records) that the motion is unnecessary. His lordship held thus:
“I find this present motion as unnecessary and a sheer waste (sic) time of this Honourable Court.”

There is no outstanding order that is left to be enforced. That apart, asking for writ of possession is completely out of place as granting a prayer for writ of possession is not anticipated in the order of the Court of 23/11/2005. Issue 1 as raised by the Appellant therefore cannot be resolved in favour of the Appellant. It is resolved in favour of the Respondent.

The second issue is whether the lower Court was wrong in awarding N50,000 cost against the Appellant in favour of the Respondent. The

award of cost is within the discretion of a Court and the appellate Court cannot interfere with the exercise of discretion by the lower Court except it is perverse. See G.K.F. Investment (Nig) Ltd vs. N.I.T.E.L. Plc (2009) LPELR-1294(SC). In Williams vs. State (1992) LPELR-3492 (SC), the Apex Court held in this wise:
“It is settled by a chain of authorities that an appellate Court will not disturb the findings of fact of a trial Court relating to credibility of witnesses and evaluation of evidence which are matters within the knowledge of the trial Judge who alone saw and heard the witnesses unless of course such findings are perverse and not justified by the evidence (See for example Okobi v. The State (Supra), Akinloye v. Eyiyola (Supra).”
Similarly, in FRN vs. Iweka (2011) LPELR-9350 (SC), the Supreme Court reiterating this principle held:
“An appellate Court which does not have that opportunity of hearing and watching the demenour of the witnesses should therefore be weary to interfere with a finding of a trial Court on the credibility of a witness. See ASANYA Vs STATE (1991) 3 NWLR (part 180) 422; POPOOLA vs ADEYEMO (1992)

8 NWLR (part 257) 1.”
I agree with the submission of Appellant’s counsel that cost awarded is not supposed to be punitive but rather to compensate the other party for the expenses he incurred for being brought to Court. See Ladega vs. Akinliyi (1969) ANLR 341. In Layinka & Anor vs. Makinde & Ors (2002) 10 NWLR (Pt. 775) 358, Uwaifo, JSC held:
“It is however well settled that costs follows the event which means that a successful party is entitled to costs unless there is any disenabling circumstance to deprive him of that entitlement: See Adenaiya v. Governor-in-Council (1962) 1 SCNLR 442; Obayagbona v. Obazee (1972) 5 SC 247. Costs are not awarded as a punitive measure against the losing party but for the purpose of meeting the legitimate expenses of the Court may seem fit: See Akinbobola v. Plisson Fisko Nigeria Ltd. (1991) 1 NWLR (Pt. 167) 270.
When costs are awarded on that basis, i.e. judicially and reasonably to compensate a successful party, an appellate Court will be quite wary to interfere with the discretion of the Court as to the amount of costs: See Rewane v. Okotie-Eboh (1960) SCNLR 461. On the other hand, if

the award is made against established principles, it will be set aside by an appellate Court: See Agidigbi v. Agidigbi (1996) 6 NWLR (Pt. 454) 300.”

The Respondent is therefore entitled to cost when the lower Court held that the motion of the Appellant was unnecessary. This is not an issue that requires so much talking. The Respondent rest was disturbed by the Appellant and he was made to file processes in Court, spent time and resources to prepare the processes, and came to Court to argue the application, the Respondent was therefore entitled to cost. The Appellant was just mentioning the amount used to file the process forgetting that someone needed to prepare the process and this entails research and involving the services of the secretary and other staff. It involves transportation to file and mobilizing bailiff to serve the processes. On the day the motion is to be argued, the many hours spent in Court before arguing the motion and then to return to Court for the ruling. All these in my opinion show that the Appellant need to compensate the Respondent as the Appellant made the Respondent to go through all these. N50,000 is therefore not too

much. I also resolve issue 2 in favour of the Respondent.

This appeal fails and it is dismissed. I award N200,000.00 (Two Hundred Thousand Naira) in favour of the Respondent.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my learned brother EBIOWEI TOBI JCA. I agree with the reasoning and Conclusion arrived at with nothing useful to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: MY learned brother, EBIOWEI TOBI, JCA graciously obliged me with a preview of the draft of the lead judgment just delivered wherein he found the instant appeal as lacking in merit and has dismissed it.

I do not have anything to add than to express my acceptance of the analysis of the two (2) issues argued and of the decisions reached on them as well as the preliminary objection that was dismissed.

The appeal is dismissed by me too, and I abide with the orders made as to costs. Appeal is dismissed.

Appearances:

ALOY EZE NDUKA ESQ. For Appellant(s)

H.O. OGUNGBAMILA ESQ. For Respondent(s)