IJOH & ANOR v. JOSEPH & ORS
(2022)LCN/16889(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Thursday, August 25, 2022
CA/MK/268/2018
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
1. STEPHEN IJOH 2. BARR. BENKI IORTYOM WOMBO APPELANT(S)
And
1. ORGA JOSEPH 2. MFANE SESUGH 3. STANLEY AKAAER 4. VIHIMGA LAWRENCE 5. SHOM JACOB 6. ERDOO IORYINA 7. FIDELITY BANK PLC 8. BENUE STATE UNIVERSITY (BSU) RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
There is no contesting as to the settled position of the law that jurisdiction is the life wire of a Court to entertain a matter and it cannot be negotiated by parties as it is ascribed by law, and where a Court is shown to lack same, it must refuse to entertain such a matter. See Madukolu v. Nkemdilim (1962) 1 All NLR 58 at page 595. PER HASSAN, J.C.A.
THE POSITION OF LAW ON THE DETERMINATION OF ISSUES PUT FORWARD BY PARTIES BEFORE IT
Counsel to Appellants on this issue is complaining that the failure of the trial Court to entertain all points made by the Appellants in their counter-affidavit is a violation of the Appellants’ fundamental rights to fair hearing. It is certainly the law that the Court must make her decision after a fair and impartial determination and resolution of all issues canvassed by parties after putting them on the imaginary scale to see which weights better as anything short is denial of fair hearing.
However, this must not be mistaken by counsel to mean that once issues canvassed are resolved against them, then the trial Court had not considered their case as counsel are always tempted to do in several appeals. PER HASSAN, J.C.A.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State High Court sitting at Makurdi delivered by Hon. Justice E. N. Kpojime in Suit No. MHC/559/2017, on the 2nd day of November, 2018, wherein the trial Court granted the Plaintiffs/Applicant’s reliefs contained on the face of her originating summons with respect to interpretation and construction of the Articles 16 (iv) and 21 of the Constitution of Benue State University Alumni Association (BSUAA) 2009.
The Appellants were the 1st and 2nd Defendants, while the 1st , 2nd and 3rd Respondents were the Plaintiffs, and the 4th to 8th Respondents were the 3rd, 4th, 5th, 13th and 14th Defendants at the trial Court respectively. The Appellants being aggrieved with the decision of the trial Court had appealed against same to this Court vide his Notice of Appeal dated the 2nd day of November, 2018 and filed on the same date. The Notice of Appeal was amended and the copy dated 21st of November, 2018, and filed on the same date which was equally deemed by this Court on the 14th of February, 2022, which challenged the decision of the trial Court on seven grounds is now the extant Notice of Appeal.
The Record of Appeal was compiled and transmitted to this Court on the 5th of December, 2018. The Appellants’ brief of argument is dated 10th of September, 2019, and filed on the 11th of September, 2019, but deemed properly filed on the 8th of March, 2021. The 1st to 6th Respondents’ brief of argument is dated the 14th of December, 2021, and filed on the 15th of December, 2021. The 7th to 8th Respondents in this appeal did not file any brief. The 1st to 6th Respondents filed their Respondents’ brief incorporating a Preliminary Objection, but same was withdrawn and struck out on the 14th of February, 2022, and so is the Appellants’ response to the Preliminary Objection. The Appellants’ reply brief of argument was dated 7th February, 2022, but filed on the 11th February, 2022.
At the hearing of the appeal, counsel to Appellants and 1st to 6th Respondents adopted their respective briefs upon which this Court reserved the Appeal for judgment.
This appeal was commenced by the Appellants vide an Originating Summons dated 7th day of December, 2017, and filed on the 8th day of December, 2017, which seeks the interpretation and construction of Article 16 (iv) and 21 of the Benue State University Alumni Association (BUSAA) 2009 on four questions and seeks following reliefs:
a. A DECLARATION that by virtue of Article 16 (iv) of the Benue State University Alumni Association (BUSAA) 2009 Constitution (as amended), the BSUAA congress can validly convene a meeting and decisions taken thereat binds the Association.
b. A DECLARATION that 69 members of the Benue State University Alumni Association (BSUAA), drawn from over five chapters/branches validly invoked the provisions of Article 16 (iv) of the Benue State University Alumni Association (BSUAA) 2009 Constitution as (Amended), when they convened BSUAA congress meeting on the 12th day of July, 2017, at Hayfield Hotel Makurdi, Benue State.
c. A DECLARATION that the 1st and 2nd Defendants were validly removed from the office by the congress on the 12th day of July, 2017, during the Benue State University Alumni Association (BSUAA) meeting held at Hayfield Hotel Makurdi, Benue State.
d. A DECLARATION that the purported subsequent meetings of Benue State University Alumni Association (BSUAA) convened by 1st Defendant after his removal from office at 72 Army Barracks Makurdi, Benue State whereat far reached decisions to wit: Amendment of BSUAA 2009, Constitution were taken is unconstitutional, illegal, unlawful, null and void and of no effect whatsoever.
e. A DECLARATION that the Purported and allegedly reviewed Constitution of Benue State University Alumni Association (BSUAA), 2017 and the Electoral Committee set up pursuant thereto is unconstitutional, illegal, unlawful, null and void and of no effect whatsoever.
f. AN ORDER of the Honorable Court directing all the Defendants to honor and give effect to the resolution and communiqué issued at the congress meeting of the Benue State University Alumni Association (BSUAA) validly held pursuant to Article 16 (iv) of the Benue State University Alumni Association (BSUAA) 2009 Constitution on the 12th day of July, 2017 at Hayfield Hotel, Makurdi, Benue State.
g. AN ORDER of perpetual injunction restraining the 1st and 2nd Defendant from parading, holding, acting and/or posing themselves as the National President and National Legal Adviser respectively of Benue State University Alumni Association (BSUAA) in whatsoever capacity haven been so removed from office by the congress of Benue State University Alumni Association (BSUAA) held pursuant to Article 16 (iv) of the Benue State University Alumni Association (BSUAA) 2009 Constitution on the 12th day of July, 2017 at Hayfield Hotel Makurdi, Benue State.
h. AN ORDER of perpetual injunction restraining the 11th and 12th Defendants from conducting the Benue State University Alumni Association (BSUAA) National Elections purportedly slated to hold at Army Barracks or any other venue on the 21st day of December, 2017 or any other date.
i. ANY OTHER ORDER(S) the Honorable Court may deem fit to make in the circumstances of this case. See pages 4 to 5 of the Record.
BRIEF STATEMENT OF FACTS
The case of the 1st and 2nd Respondents against the Appellants and the 3rd to the 8th Respondents at the trial Court by the affidavit evidence accompanying the originating summons was that the 1st Appellant is the National President of the Benue State Alumni Association (BSUAA) since 2014, and the 2nd Appellant is the Acting National legal Adviser, while the 3rd to 5th Defendants are members of constitutional review and or electoral committee set up by the 1st Appellant.
The case of the 1st and 2nd Respondents by way of originating summons was for the interpretation and construction of Section 16 (iv) and 21 of the Benue State Alumni Association Constitution which empowers its congress to remove its’ National president, and whether the removal of the National President in the person of 1st Appellant and the Acting Legal Adviser in the person of the 2nd Appellant by the congress on the 12/7/2017 is binding by virtue of the power of the congress under S. 16 (iv) and 21 of the BSUAA Constitution.
The case of the 1st and 2nd Respondent at the trial is that the Appellants having been so removed on the 12/7/2017 by the congress by virtue of S. 16 (iv) and 21 of the BSUAA Constitution, the Appellants had no power whatsoever to perform any official assignment on behalf of the Association particularly, the act of the Appellants on the constitution of the BSUAA constitutional review committee, the purported setting up of electoral committee for elections of Exco by meetings conducted by the Appellants after their removal.
The case of the 1st and 2nd Respondents against the Appellants stemmed from the fact that they are concerned members of the Benue State University Alumni Association who had observed that the Appellants as National President and Acting legal Adviser of the Association had conducted the affairs of the association with iron hands and had ran the administration of the association for their sole purpose since being elected in 2014 without carrying its members along.
The case of the 1st – 3rd Respondents is that the Appellants had managed and ran the Association in complete violation of the constitution and had conducted various acts in running the Association in breach of the Association constitution. These acts of complete violation of the BSUAA Constitution, particularly the non-calling of national meeting since 2014, was what necessitated the 1st and 2nd Respondents and 69 concerned members of the association to invoke S. 16 (iv) of the BSUAA Constitution to call a congress meeting which was held on the 12//7/2017 at Hayfield Hotel and at the meeting, the Appellants were indeed removed as national president and Acting legal adviser of the Association respectively and a transition committee set up to conduct new elections for the association.
The case of the 1st, 2nd and 3rd Respondents was that after the removal of the Appellants, they still conducted subsequent meetings on behalf of the Association, particularly the meeting held at Army Barrack and set up the electoral committee to conduct elections for the Association. It is on these circumstances that the 1st, 2nd and 3rd Respondents approached the trial Court for the interpretation and construction of S. 16 (iv) and 21 of the BSUAA Constitution and upon the interpretation, the Court should determine whether the Appellants had any power to act on behalf of the Association having been so removed by the congress. See pages 9 – 17 of the record.
The 4th to 6th Respondents herein as the 3rd to 5th Defendants at the trial Court filed their counter-affidavit to the originating summons and their case simplicita is that the Appellants were validly removed by the congress on the 12/7/2017, but the Constitution of the association has not been amended. And that the trial High Court has jurisdiction to entertain the originating summons. See pages 349 – 351 of the Records.
The 7th and 8th Respondents were the 13th and 14th Defendants at the trial Court and they did not file any counter to the 1st to 3rd Respondents’ application, neither had they filed any process before this Court.
ISSUES FOR DETERMINATION
The Appellants’ brief of argument distilled three issues for determination by this Court as follows:
1. Whether the lower Court was right to assume jurisdiction over the interpretation of an unsigned document, and whether such a defective documents robbed the Court of jurisdiction. (Culled from Ground 1).
2. Whether the Appellants’ right to fair hearing was breached by the lower Court for failure to consider all issues raised by the Appellants and accordingly pronounce judgment on all issues? (Culled from Ground 2, 4, 5 and 6).
3. Whether the lower Court properly evaluated the evidence adduced by parties at the trial and whether the lack of proper evaluation of the evidence of the Appellants has occasioned a gross miscarriage of justice against the Appellants? (Culled from Grounds 3 and 7).
The 1st to 6th Respondents herein in their brief of argument adopted the three issues formulated by the Appellants and made their submissions on them. The respondent also formulated a sole issue to be argued vis a viz issue one as follows:
Whether an uncertified photocopy of a document attached to an affidavit in a suit commenced by originating summons is admissible in law or not.
I have gone through the records and carefully examined the judgment of the lower Court, and the submissions of Counsel in their respective briefs. I shall adopt the three issues distilled in the Appellants’ brief as the proper issues arising for the just determination of this Appeal. On that note, I shall proceed to consider and resolve these issues serially commencing with issue one.
ISSUE ONE
Whether the lower Court was right to assume jurisdiction over the interpretation of an unsigned document, and whether such a defective documents robbed the Court of jurisdiction. (Culled from Ground 1).
APPELLANTS’ COUNSEL SUBMISSION
Appellant Counsel submitted that it is settled law that jurisdiction is the life wire of any litigation, including originating summons filed before the trial Court. Counsel referred to the case of Ikpeazu v. Ekeagbara & Ors (2015) LPELR 25004 CA where the Court held that even in originating summons where a Court finds it has no jurisdiction, it must decline to hear the case.
Counsel on this issue submitted that the 1st to 3rd Respondents’ originating summons had attached to it as EXH A, the Benue State Alumni Association Constitution, 2009, which is unsigned and 1st Appellant raised a preliminary objection to the originating summons on that note that the trial Court lack jurisdiction to interpreted and unsigned document. Counsel relied on the authority of Mbang v. Guardian Newspapers Ltd and Anor (2010) LPELR CA/C/100/2008 in submitting that an unsigned document is a worthless piece of paper.
Counsel contended that EXH A, the purported Constitution of Benue State University Alumni Association 2009 (as amended) having not been signed either by the leadership of the Association or the committee members that drafted same certifying it is inadmissible and had no evidential value, therefore, same completely robbed the Court of jurisdiction to entertain the originating summons.
Counsel submits that even though the Constitution is not a public document but a private document, the finding of the Court that since majority of parties are relying on the document, the Court will deal with it as document accepted by the parties, is erroneous and not borne out of law, as once issue of jurisdiction is raised, same must be dealt with before proceeding into the matter. See Okolo v. Union Bank of Nigeria Ltd (2004) 3 NWLR (Pt. 859) at 108 para D and Orhinmwon Local Government v. Ogieva (1993) 4 NWLR (Pt. 288) 469 CA cited by Appellants counsel.
Counsel contended that the lower Court was wrong as jurisdiction cannot be waived by parties as the document sought to be relied upon is inadmissible, therefore, the Court has no jurisdiction. Counsel submitted that if EXH A is yanked off the case, it will fall with the originating summons thereby making it bereft of flesh upon which the Court can oxygenate the case of the 1st to 3rd Respondents. On the ground, counsel wants this Court to hold that the originating summons does not disclose a cause of action and the trial Court lacks jurisdiction to entertain same. 1ST – 6TH RESPONDENTS’ COUNSEL SUBMISSION
Counsel in his response to this issue submitted that the trial Court was right to rely on the unsigned BSUAA Constitution as the document is a private document that does not require signature or certification in the first place. Secondly, that the document is admissible because it was tendered through affidavit evidence where unlike suit commenced by writ is attached to parties affidavit evidence and does not require oral evidence.
Counsel submitted that the Appellant’s submission that the Constitution ought to be certified is erroneous as the Constitution by Article 21 (ii) was ratified and certified by the convention special delegates on the 27/06/2009, and this ratification has same effect with certification and asking for another certification as the Appellants are doing by their argument herein is overstretching the boundaries of justice to the corridors of technicalities.
That the BSUAA Constitution being a private document was validly placed before the Court by the originating summon and the Court rightly relied on same. Counsel relied on the authority of Irimagha v. Brown & Ors (2018) LPELR 44623 to say that documents attached to affidavits in originating summons become evidence themselves. See also British American Tobacco Nig. Ltd v. International Tobacco Plc (2013).
Counsel submits further that once a document just as the BSUAA Constitution annexed to the originating summons as EXH A, is attached to an affidavit evidence, the issue of its admissibility does not arise. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 608, 735, and Boko v. Nungwa & Ors (2018) LPELR 45890 where the Court held that once a document is attached to affidavit evidence, it is proper before the Court to be used, once the Court is satisfied that it is credible.
Therefore, the document being proper before the Court, the requirement of certification for its admissibility has been dispensed with. That once documents are attached to an affidavit evidence, they are being tendered legally speaking. See Registered Trustees of Tipping Trailer Owners Union v. N.U.M.W (2012) All FWLR (Pt. 627) 764 at 733.
RESOLUTION OF ISSUE ONE
The main gross of the Appellants by this issue is that the trial Court had no jurisdiction in the first place to hear the originating summons and pronounce on same wherein the Benue State University Alumni Association Constitution, 2009 (as amended) (BSUAA) which the Applicants seeks its interpretation was not signed.
There is no contesting as to the settled position of the law that jurisdiction is the life wire of a Court to entertain a matter and it cannot be negotiated by parties as it is ascribed by law, and where a Court is shown to lack same, it must refuse to entertain such a matter. See Madukolu v. Nkemdilim (1962) 1 All NLR 58 at page 595.
I have looked at the BSUAA Constitution sought to be interpreted before the trial Court, and I have perused same on the record of this Court which is found at 21 to 34 of the record and marked as EXH A and indeed same bears no portion for signing or signature of whatsoever designation.
There is no gain saying that it is the law that an unsigned document is a worthless piece of paper, however, the said BSUAA Constitution was annexed as an exhibit to the 1st to 3rd Respondents’ originating summons for determine of Article 16 (iv) and 21 of the Constitution.
As a document as I observed earlier, there is no space provided on the said document annexed for signing by any officer as designated or certification. Even if the argument of the Appellants is to hold water, the non-signing of the BSUAA Constitution only affects the BSUAA constitution as a document which may exclude the trial Court from referring to it, it does not rob the Court of jurisdiction to entertain the entire originating summons as the affidavit evidence of parties forms legal evidence before the Court and the Court may rely on same.
The Appellants in their counter-affidavit did not deny the existence of the BSUAA Constitution, they did not provide the accurate BSUAA Constitution which was signed and neither did they deny that the association is guided by the Constitution attached by the 1st to 3rd Respondents, but they are contending simplicita that the document was not signed.
Like I said, the BSUAA Constitution attached to the affidavit evidence to the originating summons does not provide space for signing, therefore, the Appellants’ contention about the non-signing of the document is a non-starter.
I equally agree with the trial judge that since majority of the parties are relying on the said constitution in making their respective cases, it is clear that the Court can rely on same in determining the issues raised for determination since the Appellants themselves did not deny the existence of the Constitution, neither did they provide a superior one since in the first place the question before the Court was as to the constitutionality or otherwise of the actions of the Appellants which they have no answer to whatsoever in their counter-affidavit.
I have perused page 34 of the record and I had seen that the Constitution was ratified at the special delegate Convention which held on Saturday, 27th June, 2009, and upon same, the constitution took effect from the said 2009, therefore I agree with the 1st to 6th Respondents’ counsel that the document having been so ratified is acceptable by the association and is binding, therefore, the contention of the Appellants that the trial Court lacks jurisdiction to entertain the originating summons is clearly misconceived and lacking in merit.
I therefore resolve issue one against the Appellants and in favor of the Respondents.
ISSUE TWO
Whether the Appellants’ right to fair hearing was breached by the lower Court for failure to consider all issues raised by the Appellants and accordingly pronounce judgment on all issues? (Culled from Ground 2, 4, 5 and 6).
APPELLANTS’ COUNSEL SUBMISSION
On this issue, Counsel submitted that Appellants who were 1st and 2nd Defendants at the trial Court were not given fair hearing by way of hearing all their arguments and considering or pronouncing judgment on same. This according to counsel is against fair trial as guarantee by S. 36 of the Constitution FRN. See Eze v. FRN (2018) All FWLR Pt. 923, p. 162 – 163.
Counsel also referred to the authority of Chief J.L.E Duke v. Government of Cross River State & Ors (Supra) and contended that the shutting off of the 1st Defendant’s (1st Appellant) submissions and argument on the effect of an unsigned document amounts to lack of fair hearing. And also, the disregarding of the 2nd, 11th and 12th Defendants’ argument that EXH E and F attached to the originating summons did not meet the requirement of Article 17 of the BSUAA Constitution 2009 (as amended) on the lack of validity of membership of some members who converged at the emergency extraordinary National Congress was oppressive and unfair to the Appellants.
That the Court ignoring the receipt number requirement and that 54 out of the person that attended the meeting Hayfield Hotel are not financially up to date is unfair. The Court also ignored issue four raised by the 2nd, 11th, and 12th Defendants which contends that the meeting held at Hayfield Hotel is unknown to the BSUAA Constitution and this is unfair to the Appellants. The Court shut down the 2nd, 11th and 12th Defendants on the procedure of voting provided in Article 13 (ii), 6 – 8 and 17 (a) and (b) and this is unfair.
That the failure of the trial Court to rely on EXH 2 – 15 on the grounds that the signatories are not competent persons amounts to denying the 2nd, 11th, and 12 Defendants fair hearing as the Court look at the attendance list of persons that attended the Hayfield Hotel meeting but refused to look at EXH 2 – 15 to determine whether the people that attended the meeting were financially up to date. Counsel cited the authority of Adewunmi v. Nigeria Eagle Flour Mills (2014) 14 WLR (1428) 443, 458.
Counsel rounded up by submitted that the 1999 Constitution placed a duty to resolve all issues and give equal treatment to all parties, and the 1st, 2nd, 11th and 12th Defendants were not accorded fair hearing at the trial Court.
1ST – 6TH RESPONDENTS’ COUNSEL SUBMISSIONS
Counsel submitted that on the contrary, the Appellants were accorded fair hearing and that all issues contended by Appellants were dealt with adequately as Appellants contention about the unsigned BSUAA Constitution was adequately dealt with by the Court and the matter determined on the merit because Courts had moved away from technical justice.
Counsel submitted that the trial Court also dealt with the issue of financial position of the members that removed the Appellants at the meeting at Hayfield Hotel, and the issue of EXH E and F. That the law is settled that appellate Courts do not embark on evaluation of evidence in order to use it to interfere with the findings of the trial Court, except where such findings are perverse.
Counsel contended that the requirement of 100 receipts for 50 members to convey a congress as contended by Appellants is not true because to become a member of BSUAA, one had to make a one-time registration of N2,300 or N3,200 as the case may be. This registration is once in a life time, and what is subsequently required is annual subscription by payment of dues yearly at the respective branches or chapter that is required to proof membership. Therefore, proof of membership is by payment of registration fee by fresh members and by payment of annual dues by old members as rightly determined by the trial Court.
Counsel contend that Appellant submission that the meeting held at Hayfield Hotel is unknown to the BSUAA Constitution is unfounded because same is provided for in Article 10 B (iii) which is recognized by Article 16 (iv) and Article 13 of the BSUAA Constitution.
RESOLUTION OF ISSUE TWO
Counsel to Appellants on this issue is complaining that the failure of the trial Court to entertain all points made by the Appellants in their counter-affidavit is a violation of the Appellants’ fundamental rights to fair hearing. It is certainly the law that the Court must make her decision after a fair and impartial determination and resolution of all issues canvassed by parties after putting them on the imaginary scale to see which weights better as anything short is denial of fair hearing.
However, this must not be mistaken by counsel to mean that once issues canvassed are resolved against them, then the trial Court had not considered their case as counsel are always tempted to do in several appeals.
Counsel first gross of lack of fair hearing by the trial Court is that the Court did not consider his contention on the issue of the unsigned BSUAA Constitution. However, a perusal of the judgment of the trial Court at page 1035 of the record clearly shows that the Court dealt with the issue of the unsigned document and decided it. I have equally resolved in issue one above that the contention of counsel that the trial Court is robbed of jurisdiction because the BSUAA Constitution attached to the originating summons was unsigned is lacking in merit.
On the issue of whether the members who attended the meeting at Hayfield Hotel on the 12th of June, 2017, which led to the removal of the Appellants from office, were financially up to date, I had perused the judgment of the trial Court at page 1038 and the trial Court instantly considered the issue of the financial status of the members that attended the meeting at Hayfield Hotel considering the Appellants’ contention.
The Appellants as rightly stated by the counsel to the 1st to the 6th Respondents did not challenge the members who attended the meeting in EXH E and F on the 12th of August, 2017, but the members in EXH D which attended the meeting on the 12th of June, 2017. The Court in her consideration of the issue adequately considered the Appellants EXH BSUAA 2 – 15 which Appellants contended is the proper list of financial up to date members of the association and EXH F7 which the 1st to 3rd Respondents filed with their further affidavit containing receipts of members that attended the meeting of 12/06/2017.
On the issue of financial up to date, I have equally looked at the provisions of Article 8 and 6 and 17 (a) as quoted by the Appellants. The provisions of the Constitution quoted are clear and unambiguous. The constitution clearly provided for a one-time non-refundable registration fee and annual subscription by paying of annual dues. The trial Court indeed clarified that issue that receipts of members attached EXH F7 contained only three persons whose receipt is not there, which still leave above 66 eligible persons on the list.
When the Article of the constitution of the association quoted by Appellants is looked at, it is clear that the registration fee is not meant to be paid every year, but the annual dues, therefore, the trial Court in consideration of the contention of counsel clear held that she is satisfied that the persons who conducted the meeting of 12/06/2017 was legal members by the receipts in EXH F7. I agree with 1st to 6th Respondents’ counsel that EXH E and F was never in contention at the trial Court, hence, the trial Court couldn’t had pronounced on same.
I do not see any breach in the right to fair hearing occasioned the Appellants as contended by counsel herein, this issue has no merit and is accordingly dismissed.
ISSUE THREE
Whether the lower Court properly evaluated the evidence adduced by parties at the trial and whether the lack of proper evaluation of the evidence of the Appellants has occasioned a gross miscarriage of justice against the Appellants? (Culled from Ground 3 and 7).
APPELLANTS’ COUNSEL SUBMISSIONS
Counsel on this issue contended that the trial Court failed to properly evaluate the evidence of the 2nd, 11th, and 12th Defendants particularly the submission of the 1st Defendant on the tenor of an unsigned document, that the BSUAA Constitution. That the Court did not consider the submission on the lack of membership of the Plaintiffs as they are not financially up to date.
Counsel submitted that there was no document before the trial Court convening the emergency meeting of the members, but the Court used the attendance list as the convening document. That the requisite notice of meeting was not given, and the convening notice was not met up with as their must a convening document signed by 50 persons before the issue of meeting attendance will arise. Counsel also contend that the Court did not evaluate the case of the Appellants on whether the receipts of the members tendered complied with the requirement of Article 17 of the BSUAA Constitution to entitle them to convene a meeting. That the Court also failed to evaluate EXH 2 – 15 which was submitted as the list of financially up to date members, being the requirement to hold any meeting by Articles 5, 6, 8, 16 and 17 of the BSUAA Constitution.
That the trial Court did not consider it submission that the number of receipts required to convey a congress must be 100 and not 50 because all members by Article 8 of BSUAA Constitution must possess branch receipt and annual due receipt. That EXH 2 – 15 contained list of eligible members of the association and the persons that attended the meeting at Hayfield Hotel are mostly not her members or are not financially up to date to qualify as members.
Counsel relied on the authorities of Crown Flour Mills Ltd v. Olokun (2007) All FWLR (Pt. 393) 54, Mrs. Lois Chituru Ukeje & Anor v. Mrs. Gladys Ada Ukeje (2014) LPELR 22724 (SC) and a host of authorities to submit that Court must pronounce and vividly consider all issues canvassed upon by parties in a case, and the non-consideration and proper evaluation of the evidence proffer by the Appellants by the lower Court has occasioned Appellants miscarriage of justice.
1ST – 6TH RESPONDENTS’ COUNSEL SUBMISSION
Counsel submitted on this issue that the trial Court properly evaluated the evidence before it as no miscarriage of justice was occasioned any party as Appellants’ contention on EXH A not being signed does not hold water because the said Exhibit is attached to an affidavit evidence in an originating summons, therefore the trial Court is bound to pronounce on same.
On the issue of convening document, counsel responded that there is no provisions in the BSUAA Constitution for a convening document before a meeting could be held. On the issue of EXH 2 – 15 and the fact that the 1st to 3rd Respondents herein are not members of BSUAA, Counsel maintained that Appellants submission is misconceived as the membership card of the 1st – 3rd Respondents were provided and attached to the application.
Counsel contends that the issue that the signature of Lawrence Vihimga found on pages 387 and 391 of the record on receipt for various local government was never raised at the trial Court and this according to counsel is setting up a new case different from the one made at the trial Court which is not allowed.
Counsel submits that assuming but not conceding that the trial Court did not consider some issue, same did not occasioned miscarriage of justice as it is not every point not resolve by Court that occasioned miscarriage of justice, which in any circumstance, the Appellant had not shown by this Appeal, the injustice they suffered. On the whole, Counsel urged this Court to resolve this issue against the appellants.
RESOLUTION OF ISSUE THREE
The Appellants on this issue are complaining that the trial Court did not properly evaluate the evidence adduced by them before reaching her conclusion on same and agreeing with the 1st to 3rd Respondent. At this stage, having decided issues one and two which contains similar argument against the Appellants, I think the issue of evaluation of evidence contended by the Appellants is spent.
There is no gain saying that Appellant is just arguing the same point in these three issues couched differently. I therefore say that the submission of counsel on this issue suffers the same fate as in issues one and two, having seen that the argument of counsel revolves around the same unsigning of EXH A, the financial standings of the persons in EXH E and F which this judgment has adequately dealt with already.
On the whole, I see no merit in this appeal. The Appellants rather than attend to the issues and facts surrounding the case of the 1st to 3rd Respondents by the originating summons, had practically made one case that the members that attended the meeting of 12/06/2017 which removed them from office had no financial standing and that the BSUAA constitution was unsigned, while carefully in their thought evaded answering the real issues in contention, whether they had violated the Constitution they swore to uphold, consequently, their removal on the 12/06/2017, was valid.
The era of technicality in law has passed, if the Appellants are still living in that world of practice, let them wake up.
In conclusion, having resolved issues 1-3 against the Appellant, this appeal fails and it is hereby dismissed. The judgment of the learned trial Judge, Hon. Justice E.N. Kpojime J., sitting at Makurdi division of the Benue State High Court delivered on 2nd day of November, 2018 in Suit No. MHC/559/2017 is HEREBY AFFIRMED.
Cost of Fifty Thousand Naira (N50,000.00) is awarded against the Appellant in favour of the Respondent.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA, and I am in complete agreement with the reasoning and conclusion of my Lord in his lead judgment on all the issues raised.
Having resolved the issues 1-3 in this appeal against the Appellant, this appeal fails and it is hereby dismissed.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA. My learned brother has elaborately dealt with all the issues relevant for the determination of the appeal. I agree with him that the appeal is lacking in merit and should be dismissed.
Accordingly, I also affirm the judgment of the High Court of justice, sitting in Makurdi, Benue State in Suit No. MHC/559/2017 delivered by Hon. Justice E. N. Kpojime and dated 2nd day of November, 2018.
I further abide by the award of costs of N50,000.00 (Fifty Thousand Naira) against the appellants and in favour of the respondents.
Appearances:
J.O. EWUREJE, Esq. For Appellant(s)
B.C. ABEE, Esq. For Respondent(s)
