HIS GRACE INTEGRATED DYNAMIC SYSTEM LTD & ANOR v. OGIEMWONYI & ANOR (2021)

HIS GRACE INTEGRATED DYNAMIC SYSTEM LTD & ANOR v. OGIEMWONYI & ANOR

(2021)LCN/15138(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 19, 2021

CA/B/194/2015

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

HIS GRACE INTEGRATED DYNAMIC SYSTEM LTD & ANOR APPELANT(S)

And

UHUNOMA OGIEMWONYI (Alias White) & Anor RESPONDENT(S)

RATIO

WHO CAN VALIDLY SIGN A COURT PROCESS

By the combined effect of the provisions of Section 2(1) and 24 of the Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 2004, only persons who have been called to the Nigerian Bar and whose names are on the Roll of Legal Practitioners in Nigeria can validly sign Court processes. See the cases of: Oyama v. Agibe (2016) All FWLR (Pt. 840) p. 1274 at p. 1284, paras. B-C and (2) Ewukoya v. Buari (2017) All FWLR (Pt. 881) p.1099 at p.1115, paras. D-G. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

POSITION OF THE LAW REGARDING WHERE IT CANNOT BE SAID WHO SIGNED A PROCESS

It is now a well settled principle of Law that where a Court process is required to be signed by a Legal Practitioner, such process should mandatorily be signed by the relevant Legal Practitioner. Failure to so do will therefore amount to a fundamental vice. See the case of: Weekly Insight & Communication Network Ltd. v. Peter (2019) LPELR-46847 (CA), where this Court reiterating the position of the Apex Court in the case of:SLB Consortium Ltd. v. NNPC (2011) All FWLR (Pt.583) p. 1902 is emphatic that, once it cannot be said who signed a process, the process is in Law substantially incurably bad, so much so that even where there is a rule of Court designed to provide a remedy for such an error, such rule of Court will be of no moment, as a procedural rule of Court cannot override the provisions of a substantive Law. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

ESSENCE OF AFFIXING ON A LEGAL DOCUMENT, A SEAL OR STAMP APPROVED BY THE NIGERIAN BAR ASSOCIATION.

… Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners Act, Cap. 20, Laws of the Federation 1990 provides that, a Lawyer acting in his capacity as a Legal Practitioner shall not sign or file a legal document unless there is affixed on the legal document, a seal or stamp approved by the Nigerian Bar Association. It therefore follows that, for a legal document to be valid, it must both be sealed with a valid Legal Practitioner’s seal and signed by a litigant or his Legal Practitioner. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

WHETHER LEAVE IS REQUIRED WHEN A COMPLAINT IS IN RESPECT OF INTERLOCUTORY DECISION IN WHICH THE GROUNDS OF APPEAL RAISE QUESTIONS OF MIXED LAW AND FACTS

The right to appeal against a decision of a lower Court, whether interlocutory or final is governed by the provisions of relevant statutes, that is, the Law which created the trial and appellate Courts. The procedure for the exercise of the right of appeal is equally regulated by Law, that is, the rules of procedure of the relevant Courts. The right of appeal from decisions of the various High Courts to this Court is provided for in Sections 241(1), 242(2) and 243 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended). The provisions of the Constitution relevant in the determination of the above-posed question are those of Sections 241 (1) (a) – (b) and 242(1). Section 241(1) (a) – (b) and 242(1) provide as follows: “241 – (1) An Appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases- (a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance; (b) where the ground of appeal involves questions of Law alone, decisions in any civil or criminal proceedings; 242 – (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.” The unambiguous interpretation of the above reproduced provisions is that, there is a right of appeal to the Court of Appeal when a complaint is in respect of a final decision in any civil or criminal proceedings before the Federal High Court or the High Court of the Federal Capital Territory or the High Court of a State sitting at first instance and in respect of interlocutory decision where the grounds of appeal involves questions of Law alone in the civil or criminal proceedings. However, when a complaint is in respect of interlocutory decision in which the grounds of appeal raise questions of mixed Law and facts, prior leave of the trial Court or this Court is required for the relevant appeal to be competent. It is therefore trite that where leave is required before an appeal could be filed, failure to obtain the leave prior to filing the appeal would not only render the appeal incompetent but also rob this Court of its jurisdiction to adjudicate upon the appeal. To put this in another way, leave of Court where it is required is a condition precedent to the exercise of the right to appeal. Failure to obtain leave where it is required will render the appeal nugatory as no jurisdiction can be conferred on the appellate Court. Hence, an interlocutory appeal from the High Court to the Court of Appeal on grounds other than of Law alone, that is on mixed Law and facts, is incompetent and invalid unless leave of either the High Court or the Court of Appeal is first sought and obtained – see amongst an army of judicial decisions, the cases of: (1) Nalsa Team Associates v. N.N.P.C (1991) 8 NWLR (Pt. 212) p.652; (2) S.P.D.C. (Nig.) Ltd. v. Katad (Nig.) Ltd. (2006) 1 NWLR (Pt. 960) p…; (3) Nwaolisah v. Nwabufoh (2011) 14 NWLR (Pt.1268) p. 600; (4) Global West Vessel Specialist (Nig.) Ltd. v. Nigeria NLG Ltd. & Anor. (2017) LPELR-41987 (SC) and (5) Fasuyi & Ors. v. PDP & Ors. (2017) LPELR-43462 (SC). Further to the above constitutional provisions on appeals from interlocutory orders and decisions of the High Court are the provisions of Section 14(1) and (2) of the Court of Appeal Act, 2004. Section 14 provides as follows: “14. (1) Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, with the leave of that Court or of the Court Appeal, lie to the Court of Appeal, but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs. (2) Nothing in subsection (1) of this section, shall be construed so as to authorise an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.” By the plain interpretation of Section 14 reproduced above, the leave of the High Court of a State or Federal High Court sitting in its original jurisdiction must first be sought from that High Court prior to filing an appeal to this Court from its interlocutory order or decision in the course of any suit or matter, except on an order made “ex parte” or by content of parties or relating only to costs. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

MEANING OF THE PHRASE “INTERLOCUTORY DECISION.”

The phrase simply means, an order made in the interim or temporarily, that is, not constituting a final resolution of the entire controversy between parties in an action before the Court. An interlocutory decision is thus an order that relates to some intermediate matter in a case, it is an order other than a final order- see Black’s Law Dictionary, 7th Edition, pages 819 and 1123 and the cases of: (1) Alor & Anor. v. Ngene & Ors. (2007) 17 NWLR (Pt. 1062) p.163 and (2) Abacha v. Kurastic Nig. Ltd. (2014) LPELR-22703 (CA). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

WHAT AN APPELLATE COURT WILL TAKE INTO CONSIDERATION IN DETERMINING WHETHER THE LOWER COURT EXERCISED THE DISCRETION JUDICIOUSLY ,JUDICIALLY OR ARBITRARILY

Discretion is exercised by a Court in the context of certain circumstances placed before that Court. Hence, if the exercise of that discretion is challenged before an appellate Court, the appellate Court is bound to look at the surrounding circumstances to determine whether the lower Court exercised the discretion judiciously or judicially or arbitrarily. That is why such a challenge of the exercise of discretion raises questions of mixed Law and facts. For, to examine the manner in which the trial Court exercised its discretion, the appellate Court has to look at the facts and circumstances of the matter. It is against that background that the appellate Court will determine whether the right principles of Law have been applied to the prevailing set of facts and circumstances- see the cases of: (1) Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) p.84; (2) Metal Construction (W.A.) Ltd. v. Migliore (1990)1 NWLR (Pt. 126) p. 299; (3) CBN & Anor. v. Okojie & Ors. (2002) 8 NWLR (Pt. 768) p.48; (4) FBN v. Abraham (2008) 18 NWLR (Pt. 1118) p. 172 at p.189; (5) Garuba v. Omokhodion (2011) All FWLR (Pt. 596) p.4040 at p.431 and (6) Obasi v. Mikson Establishment Industries Ltd. (2016) LPELR-40704 (SC). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Edo State, Abudu Judicial Division Coram, A.N. Erhabor, J. (hereinafter referred to as “the trial Court”) delivered on the 22nd day of October, 2014 in Suit No. HAB/17/2014.

At the trial Court, on the 28th day of April, 2014, the claims of the Appellants as Claimants per their Writ of Summons and Statement of Claim against the Respondents as Defendants are hereunder reproduced verbatim as follows:
“a. An order of perpetual injunction restraining the Defendants by themselves, servants, agents, workmen and assigns from further disturbing the Claimants, their workmen, servants and agents occupation, possession, usage and peaceable enjoyment over all that parcel of land measuring 1000 feet by 1000 feet bounded in front by Azagba/Ikhuen-Obo Boundary Road, on the two sides by thick forest and at the back by Okhuahe River and the access road to the said land situate, lying and being at Ikhuen-Obo Village Area, Uhumwonde Local Government Area of Edo State as a burrow pit for excavation of sand during the period o

the lease.
b. A declaration that the Claimants are the persons entitled to the exclusive possession, occupation and usage of the said parcel of land measuring 1000 feet by 1000 feet during the 10 (ten) years lease granted to Claimants.
c. An order of perpetual injunction restraining the Defendants by themselves, servants, agents, workmen and assigns from further disturbing the Claimants, their workmen, servants and agents occupation, possession, usage and peaceable enjoyment over all that parcel of land measuring 1000 feet by 1000 feet bounded in front by Azagba/Ikhuen Obo Boundary Road, on the two sides by thick forest and at the back by Okhuahe River and the access road to the said land situate, lying and being at Ikhuen-Obo Village Area, Uhunmwonde Local Government Area of Edo State as a burrow pit for excavation of sand during the period of the Lease.”

The Appellants filed along with their Statement of Claim, a motion on notice for the trial Court’s order of interlocutory injunction against the Respondents, in the following terms:
“An order of interlocutory injunction restraining the Defendants/Respondents by

themselves, agents, workmen, servant, assigns, thugs and/or by whatever named called from entering, interfering, disturbing, dispossessing in any manner whatsoever or stopping the Claimants/Applicants possession, occupation, use, peaceable enjoyment, activities, works and excavation of sand from the land leased to Claimants as burrow pit situate at Ikhuen Obo Village Area, Uhunmwonde Local Government Area of Edo State measuring 1000 feet by 1000 feet and bounded in front by Azagba ikhuen Obo Boundary Road, at the sides by thick forest and at the back by Okhuahe River and the access Road to the land pending the hearing and determination of in this suit.”

The motion on notice was supported with an affidavit of twenty three paragraphs and some annexures – see pages 17 to 34 of the Record of Appeal. The Appellants equally filed a further affidavit of twenty-nine paragraphs with some annexures– see pages 35 to 62 of the Record of Appeal.

After entering appearance in the suit, the Respondents did not file their statement of defence, rather, they filed a counter-affidavit of thirty-five paragraphs, with some annexures in opposition to

the motion of the Appellants – see pages 72 to 87A of the Record of Appeal.

The Appellants’ application was heard by the trial Court on the 25th of June, 2014 and in its considered sweeping ruling thereon delivered on the 22nd of October, 2014, the trial Court made an order of interlocutory injunction restraining both parties from entering the perimeter of the land, the subject-matter of the action.

Displeased by the said ruling of the trial Court, the Appellants filed an appeal to this Court against it vide their original Notice of Appeal, of two grounds of appeal, dated the 28th of October, 2014 filed on the 30th of October, 2014 – see pages 97 to 98 of the Record of Appeal. Sequel to the order of this Court made on the 5th of May, 2016, the said original Notice of Appeal was amended by the Appellants. Hence, the Amended Notice of Appeal, also of two grounds of appeal, dated the 6th day of May, 2016 was filed within time on the same day. For good grasp and easy referencing, the two grounds of appeal contained in the Amended Notice of Appeal, are hereunder reproduced verbatim as follows:
1. The trial Court erred in Law when the

Court made an order of interlocutory injunction restraining the Claimants and Defendants from trespassing, and interfering with the land measuring 1000 feet by 1000 feet situate at Ikhuen Obo Village, Ehor, Uhunmwonde pending the hearing and determination of the substantive suit”.
Particulars of error of Law
a. There was no application whatsoever before the Honourable trial Court to restrain the Claimants and the Defendant as was made by the trial Court.
b. The trial Court cannot grant a relief not sought by a party in a case, particularly, the Claimants in this case.
c. The application of the Claimants before the trial Court was for an order of interlocutory injunction restraining the Defendants only.
d. There was affidavit evidence before the trial Court that the 1st and 2nd Claimants were in possession.
2. That the ruling is against the weight of the affidavit evidence before the Court.”

It must be emphasised that the two sets of grounds of appeal in both the original Notice of Appeal and the Amended Notice of Appeal are very similar in their cognitive content.

In deference to the rules of this

Court, briefs of argument were settled for the parties by their respective Counsel.

The Appellants’ Brief of Argument dated and filed on the 15th day of September, 2015 was settled by Martin O. Ighekpe, Esq. of the Law firm of Nosa Obaizamonwan & Co., the Appellants’ Counsel. In the said brief, the two issues submitted for the determination of the appeal read as follows:
“(a) Whether the lower Court was right in making an order of interlocutory injunction restraining both the Appellants and the Respondents from entering the land in dispute in this case?
(b) Whether from the facts as disclosed by the affidavit evidence in this case the Appellants are entitled to the grant of an order of interlocutory injunction restraining the Respondents from entering the land in dispute?”

On the other part, the Respondents’ Brief of Argument dated and purportedly filed on the 15th of October, 2015 was settled by the Law firm of Festus Imafu & Co. In the said brief, the Respondents raised a preliminary objection to the competence of the Appellants’ appeal on the ground that, the notice of appeal having

disclosed complainant of error of mixed Law and facts, the Appellants ought to have first sought and obtained the leave of the trial Court or this Court before filing their said notice of appeal. The arguments submitted in support of the point of preliminary objection are contained in paragraph 2.01(a) at page 3 through to paragraph 2.01(d) at page 7 of the Respondents’ brief of argument. In the alternative, the Respondents’ Counsel impliedly adopted the two issues contained in the Appellants’ brief of argument for the resolution of the appeal. The submissions buttressing the two issues are contained in paragraphs 3.01 to 4.05 at pages 7 to 18 of the Respondents’ Brief of Argument.

It is pertinent to note that the Appellants did not file any Reply Brief of Argument to the Respondents’ Brief of Argument.

The appeal was heard by this Court on the 24th of February, 2021. At the said hearing, the Appellants and their Counsel were present. However, the Respondents as well as their Counsel were absent, albeit this Court was satisfied that hearing notice was duly served on the Respondents’ Counsel on the 18th of

February, 2021.

At the hearing of the appeal, the Appellants’ Counsel, Mr. A.O. Osemwegie adopted the Appellants’ Brief of Argument in urging upon this Court to allow the appeal and set aside the decision of the trial Court.

In the circumstances and in the eyes of the Law, the preliminary objection of the Respondents’ Counsel was deemed abandoned. However, the portion of the Respondents’ Brief of Argument in response to the Appellants’ appeal in the main was deemed duly adopted in pursuance of the provisions of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.

Notwithstanding that the point of objection of the Respondents’ Counsel contained in the Respondents’ brief of argument has been discountenanced, this Court still has the legally bounded duty to consider and determine the competence or otherwise of the original Notice of Appeal of the Appellant same being the initiating process of the appeal. However, before proceeding with that exercise, it is equally incumbent on me to look into whether or not there is a valid Respondents’ brief of argument before this Court in this matter.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

“Ex facie” the Respondents’ Brief of Argument, it can be observed that, although a signature has been appended thereon, the said signature cannot be ascribed to any of the three persons whose names are listed as being from the Chambers of the Respondents’ Counsel who had purportedly filed the said brief of argument for the Respondents. Again, albeit the seal of one Imafu Evbaunegbe Festus, names similar to the names of the first listed person, there is no indication that the signature belongs to this person. By the combined effect of the provisions of Section 2(1) and 24 of the Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 2004, only persons who have been called to the Nigerian Bar and whose names are on the Roll of Legal Practitioners in Nigeria can validly sign Court processes. See the cases of: Oyama v. Agibe (2016) All FWLR (Pt. 840) p. 1274 at p. 1284, paras. B-C and (2) Ewukoya v. Buari (2017) All FWLR (Pt. 881) p.1099 at p.1115, paras. D-G. It is now a well settled principle of Law that where a Court process is required to be signed by a Legal Practitioner, such process should mandatorily be signed by the

relevant Legal Practitioner. Failure to so do will therefore amount to a fundamental vice. See the case of: Weekly Insight & Communication Network Ltd. v. Peter (2019) LPELR-46847 (CA), where this Court reiterating the position of the Apex Court in the case of:SLB Consortium Ltd. v. NNPC (2011) All FWLR (Pt.583) p. 1902 is emphatic that, once it cannot be said who signed a process, the process is in Law substantially incurably bad, so much so that even where there is a rule of Court designed to provide a remedy for such an error, such rule of Court will be of no moment, as a procedural rule of Court cannot override the provisions of a substantive Law.

Furthermore, Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners Act, Cap. 20, Laws of the Federation 1990 provides that, a Lawyer acting in his capacity as a Legal Practitioner shall not sign or file a legal document unless there is affixed on the legal document, a seal or stamp approved by the Nigerian Bar Association. It therefore follows that, for a legal document to be valid, it must both be sealed with a valid Legal Practitioner’s seal and signed by a litigant or his Legal

Practitioner.

Consequent upon the foregoing, I hold that the Respondents’ Brief of Argument in this matter dated the 15th of October, 2015 purportedly filed on the same date having been signed by an unknown person is incompetent, and liable to be struck out.

I will now proceed to the consideration of the question: whether or not the initiating process in this appeal, that is, the original Notice of Appeal of the Appellant dated the 28th of October, 2014 purportedly filed on the 30th of October, 2014 is competent? The right to appeal against a decision of a lower Court, whether interlocutory or final is governed by the provisions of relevant statutes, that is, the Law which created the trial and appellate Courts. The procedure for the exercise of the right of appeal is equally regulated by Law, that is, the rules of procedure of the relevant Courts. The right of appeal from decisions of the various High Courts to this Court is provided for in Sections 241(1), 242(2) and 243 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended). The provisions of the Constitution relevant in the determination of the above-posed question are

those of Sections 241 (1) (a) – (b) and 242(1). Section 241(1) (a) – (b) and 242(1) provide as follows:
“241 – (1) An Appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of Law alone, decisions in any civil or criminal proceedings;
242 – (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
The unambiguous interpretation of the above reproduced provisions is that, there is a right of appeal to the Court of Appeal when a complaint is in respect of a final decision in any civil or criminal proceedings before the Federal High Court or the High Court of the Federal Capital Territory or the High Court of a State sitting at first instance and in respect of

interlocutory decision where the grounds of appeal involves questions of Law alone in the civil or criminal proceedings.

However, when a complaint is in respect of interlocutory decision in which the grounds of appeal raise questions of mixed Law and facts, prior leave of the trial Court or this Court is required for the relevant appeal to be competent. It is therefore trite that where leave is required before an appeal could be filed, failure to obtain the leave prior to filing the appeal would not only render the appeal incompetent but also rob this Court of its jurisdiction to adjudicate upon the appeal. To put this in another way, leave of Court where it is required is a condition precedent to the exercise of the right to appeal. Failure to obtain leave where it is required will render the appeal nugatory as no jurisdiction can be conferred on the appellate Court. Hence, an interlocutory appeal from the High Court to the Court of Appeal on grounds other than of Law alone, that is on mixed Law and facts, is incompetent and invalid unless leave of either the High Court or the Court of Appeal is first sought and obtained – see amongst an army of

judicial decisions, the cases of: (1) Nalsa Team Associates v. N.N.P.C (1991) 8 NWLR (Pt. 212) p.652; (2) S.P.D.C. (Nig.) Ltd. v. Katad (Nig.) Ltd. (2006) 1 NWLR (Pt. 960) p…; (3) Nwaolisah v. Nwabufoh (2011) 14 NWLR (Pt.1268) p. 600; (4) Global West Vessel Specialist (Nig.) Ltd. v. Nigeria NLG Ltd. & Anor. (2017) LPELR-41987 (SC) and (5) Fasuyi & Ors. v. PDP & Ors. (2017) LPELR-43462 (SC).
Further to the above constitutional provisions on appeals from interlocutory orders and decisions of the High Court are the provisions of Section 14(1) and (2) of the Court of Appeal Act, 2004. Section 14 provides as follows:
“14. (1) Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, with the leave of that Court or of the Court Appeal, lie to the Court of Appeal, but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.
(2) Nothing in subsection (1) of this section, shall be construed so as to

authorise an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.”
By the plain interpretation of Section 14 reproduced above, the leave of the High Court of a State or Federal High Court sitting in its original jurisdiction must first be sought from that High Court prior to filing an appeal to this Court from its interlocutory order or decision in the course of any suit or matter, except on an order made “ex parte” or by content of parties or relating only to costs.

I will pause here to quickly reiterate the definition of the phrase, “interlocutory decision.” The phrase simply means, an order made in the interim or temporarily, that is, not constituting a final resolution of the entire controversy between parties in an action before the Court. An interlocutory decision is thus an order that relates to some intermediate matter in a case, it is an order other than a final order- see Black’s Law Dictionary, 7th Edition, pages 819 and 1123 and the

cases of: (1) Alor & Anor. v. Ngene & Ors. (2007) 17 NWLR (Pt. 1062) p.163 and (2) Abacha v. Kurastic Nig. Ltd. (2014) LPELR-22703 (CA). There is no question that the instant matter is an appeal arising from an interlocutory decision of the trial Court. As stated earlier at the debut of this judgment, the Appellants, sequel to their Writ of Summons and Statement of Claim in an action for declaration of title to land, filed a motion for an interlocutory injunction against the Respondents pending the determination of the main action. This appeal is therefore against the Ruling of the trial Court on the interlocutory injunction in the interim, as the main controversy between the parties was yet to even commence and be resolved in the main. For clarity and easy referencing, the two grounds of appeal with their particulars as contained in the original Notice of Appeal are hereunder reproduced verbatim as follows:
“1. The trial Court erred in Law when the Court made an order of interlocutory injunction restraining the Claimants and Defendants from trespassing, and interfering with the peaceful possession of the Claimants in the land measuring

1000ft by 1000ft situated at Ikhuen Obo Village, Ehor, Uhunmwonde pending the hearing and determination of the substantive suit.
Particulars of error of Law:
a. There was no application whatsoever before the Honourable trial Court to restrain the Claimants and the Defendants as was made by the trial Court.
b. The trial Court cannot grant a relief not sought by a party, in a case, particularly, the Claimants in this case.
c. The application of the Claimants before the trial Court was for an order of interlocutory injunction restraining the Defendants only.
d. There was affidavit evidence before the trial Court that the 1st and 3rd Defendants were in possession.
2. That the ruling is against the weight of the affidavit evidence before the trial Court.”

Ground one reproduced above clearly is a challenge of the exercise of discretion of the trial Court. Discretion is exercised by a Court in the context of certain circumstances placed before that Court. Hence, if the exercise of that discretion is challenged before an appellate Court, the appellate Court is bound to look at the surrounding circumstances to determine

whether the lower Court exercised the discretion judiciously or judicially or arbitrarily. That is why such a challenge of the exercise of discretion raises questions of mixed Law and facts. For, to examine the manner in which the trial Court exercised its discretion, the appellate Court has to look at the facts and circumstances of the matter. It is against that background that the appellate Court will determine whether the right principles of Law have been applied to the prevailing set of facts and circumstances- see the cases of: (1) Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) p.84; (2) Metal Construction (W.A.) Ltd. v. Migliore (1990)1 NWLR (Pt. 126) p. 299; (3) CBN & Anor. v. Okojie & Ors. (2002) 8 NWLR (Pt. 768) p.48; (4) FBN v. Abraham (2008) 18 NWLR (Pt. 1118) p. 172 at p.189; (5) Garuba v. Omokhodion (2011) All FWLR (Pt. 596) p.4040 at p.431 and (6) Obasi v. Mikson Establishment Industries Ltd. (2016) LPELR-40704 (SC).

With regard to ground two which is specifically questioning the evaluation of the affidavit evidence of the parties by the trial Court, this equally amounts to a question of mixed Law and facts. The ground complains that the

Ruling of the trial Court is against the weight of the parties’ affidavit evidence, a question of pure facts, however, this will no doubt require this Court to further evaluate the affidavit evidence before the application of the relevant Laws thereto – see the cases of: (1) Anoghalu & Ors. v. Oraelosi & Anor. (1999) LPELR-496 (SC); (2) Ogbechie v. Onochie (Supra) and (3) Fasuyi & Ors. v. PDP & Ors. (Supra). The instant appeal therefore being an interlocutory one on questions of mixed Law and facts, the leave of either the trial Court or this Court is a condition precedent to the filing of Appellants’ Notice of Appeal. I have perused the entire printed Record of Appeal and am unable to locate any such leave sought and obtained by the Appellants prior to the filing of their original Notice of Appeal. Hence, the Notice of Appeal is invalid and concomitantly the Amended Notice of Appeal filed on the 6th of May, 2016 is inconsequential, the latter having been based on nothing. This Court thence is devoid of jurisdiction to entertain the Appellants’ appeal as the condition for the activation of this Court’s adjudicatory

power had not been fulfilled. In other words, this appeal was not initiated by due process of Law as the condition precedent to the exercise of this Court’s jurisdiction was not fulfilled – see the “locus classicus” case of:Madukolu v. Nkemdilim (1962) 2 SCNJ p. 341and also amongst an army of judicial authorities, the cases of: (1) Skenconsult (Nig.) Ltd. & Anor. v. Ukey (1981) LPELR-3072 (SC); (2) Nwaigwe v. Okere (2008) 5 SCNJ p. 256 at p. 274; (3) MPPP v INEC & Ors. (2015) LPELR-25706 (SC); (4) Mailantarki v. Tongo & Ors. (2017) LPELR-42467 (SC) and (5) Okwuosa v. Gomwalk & Ors. (2017) LPELR-41736 (SC).

In sum, this appeal is incompetent, liable to be and is accordingly struck out for the aforestated reasons.
The parties are hereby ordered to bear their respective costs in the bid to prosecute and defend the ill-fated purported appeal.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My lord, Oyebisi Folayemi Omoleye PJCA had afforded me in advance a copy of the lead judgment just delivered, and I am completely in agreement with the reasoning and conclusions reached therein. I adopt it as mine. I have

nothing more useful to add to the comprehensive lead judgment. I shall abide by the consequential orders made in the lead judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, Oyebisi Folayemi Omoleye, JCA and I am in complete agreement with the reasoning and conclusions in the lead judgment. I subscribe to the consequential orders made thereto.

Appearances:

Mr. A.O. Osemwegie
For Appellant(s)

The Respondent was not represented by Counsel. For Respondent(s)