AKPANKE AWHANGWU & ORS v. CHRISTOPHER ADIE AWHANGWU & ANOR (2016)

AKPANKE AWHANGWU & ORS v. CHRISTOPHER ADIE AWHANGWU & ANOR

(2016)LCN/8493(CA)

In The Court of Appeal of Nigeria

On Monday, the 18th day of April, 2016

CA/C/135/2013

RATIO

JUDGMENT: TEST FOR DETERMINING IF A DECISION IS A FINAL ONE OR INTERLOCUTORY
A final decision has been defined as an order which disposes of the entire controversy on the merits, leaving nothing but the enforcement of that which has been determined. An interlocutory order, on the other hand, is one issued during the course of proceedings, but which does not terminally determine the rights of the parties. So, if an order does not terminally determine the rights of the parties and it can be revisited or reversed by the same Court, then it is interlocutory. In Ifediora v. Ume (1998) LPELR-1434(SC), the Supreme Court, per Nnaemeka Agu, JSC said:
“…. the test as to whether a decision is final or interlocutory which has been preferred by authoritative decisions in this country has been consistently one which looks at the result, id est, which asks the question: “does the judgment or order, as made, finally dispose of the rights of the parties?”
His Lordship further said:
“On indisputable attribute of all final orders is that once made the judge making it becomes funtus officio, so that it can only be reversed on appeal. So, if a Court as in this case, before or during the course of the hearing of a case, orders something which he can review or reverse at anytime, such order cannot be final.” PER ONYEKACHI AJA OTISI, J.C.A.
COURT: DUTY OF COURT NOT TO MAKE CASES FOR PARTIES WITHOUT HEARING FROM THEM
It is trite that a Court of law cannot make a case for the parties, different from the one set up by the parties themselves, whether by their pleadings or affidavits, and proceed to give a decision thereon, without the input of both parties; Kano State Oil and Allied Products Ltd v. Kofa Trading Co. Ltd (1996) 3 NWLR (Pt. 436) 244; Fadlallah v. Arewa iles Ltd (1997) 8 NWLR (Pt. 518) 546, (1997) LPELR-1225(SC); Longe v. First Bank of Nig. Plc (2010) LPELR-1793(SC) (2010) 6 NWLR (Pt. 1159) 1 SC. Usually, a decision given in this circumstance falls short of the requirement of fair hearing and cannot be allowed to stand. However, it must be shown that the trial Court in deciding the case before it, relied solely on the case it improperly made out for the parties, thereby occasioning a miscarriage of justice. PER ONYEKACHI AJA OTISI, J.C.A.
JUDGMENT: ERROR IN JUDGMENT; CIRCUMSTANCES WHERE AN ERROR IN JUDGMENT WILL RESULT IN THE APPEAL BEING ALLOWED

It is well established that not every mistake or error in a judgment will result in the appeal being allowed; Nguma v. A.G., Imo State (2014) LPELR-22252(SC); Atungwu v. Ochekwu (2013) LPELR-20935(SC). An error in a judgment can only be a ground for allowing an appeal if and only if it is substantial in the sense that it would have affected the judgment of the lower Court one way or the other or it has occasioned a miscarriage of justice; Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65; Anyanwu v. Mbara (1992) 6 SCNJ 90; Nguma v. A.G. Imo State (supra). PER ONYEKACHI AJA OTISI, J.C.A.
COURT: MEANING OF JUDICIAL BIAS
The Supreme Court has defined judicial bias in a number of authorities.
“Bias in its ordinary meaning is opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Judge so influenced will be unable to hold an even scale.”
Per Ayoola, JSC Kenon v. Tekam (2001) 7 S.C. (Pt. 111) 49.
“When a judge appears to give more favour or consideration to one of the parties before him, either in his utterances, attention or actions, which is capable of perverting the cause of justice, or where fair hearing cannot be said to have taken place, all in favour of the party he supports covertly or overtly, then an allegation of bias against him can be grounded. That of course is a judicial bias.”
Per I. T. Muhammed, JSC in Womiloju v. Anibire (2010) 10 NWLR (Pt. 1203) 545.
In Womiloju v. Anibire (supra) other factors which could show real likelihood of bias were listed as:
1. Hostility of strong personal animosity towards a party.
2. Personal friendship, family or professional relationship.
But there must be a real likelihood of bias, which is not merely based on conjecture. The test is the impression created in the minds of right minded people. If right thinking persons would think that there is a real likelihood of bias or that the trial judge had not been impartial then his decision cannot stand, Womiloju v. Anibire (supra); Saliba v. Lababedi (1972) 72 S.C. 132. PER ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

1. AKPANKE AWHANGWU
2. GODWIN ADIGOR
3. JOHN AWHANFUNG ADIGOR
4. CHIEF PIUS AKPEKA UKAPI
(For themselves of Bebua-Abuobe’s Family Abonkib) Appellant(s)

AND

1. CHRISTOPHER ADIE AWHANGWU
2. REGISTRAR HIGH COURT OF JUSTICE BEKWARRA (DEPUTY SHERIFF) Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the leading Judgment): This Appeal is against the ruling of the High Court of Cross River State, sitting at Abuochiche, delivered on December 4, 2012 dismissing the application of the Appellants.

The Appellants were defendants in Suit No. HD/15/2007, which action was filed in the Obudu Judicial Division of Cross River State by the 1st Respondent. Hearing had commenced before the trial Judge was transferred to the High Court of Justice, Abuochiche, Bekwarra Judicial Division of Cross River State. The new judge sitting in Obudu Judicial Division decided to transfer the pending suit to be concluded or determined in Abuochiche, Bekwarra Judicial Division. Upon the conclusion of hearing, the trial judge delivered judgment on 30/9/2010 in favour of the 1st Respondent. The Appellants lodged an appeal against the said judgment to this Court; but the appeal was dismissed, inter alia in the absence of Appellants and their counsel. The said judgment of 30/9/2010 was then executed, following which the moveable properties of Appellants, including a motor car and two motorcycles were attached. Upon the

said attachment, the Appellants filed a motion on notice in Suit No. HR/5/2012, praying for eight (8) reliefs. The application was heard and on 4/12/2012, the learned trial Judge delivered a ruling in which he dismissed the said application.

Aggrieved by the said ruling, the Appellants lodged the instant Notice of Appeal on 5/2/2013 upon eleven (11) grounds.

The Appellants and the 1st Respondent exchanged Briefs of Argument. The Appellants’ Brief of Argument, settled by Lazarus A. Izabi-Undie, Esq., was filed on 26/9/2014 but deemed properly filed and served on 11/5/2015. The Appellants’ Brief was deemed adopted on 27/1/2016 pursuant to Order 18 Rule 9 (4) of the Court of Appeal Rules, 2011. The 1st Respondent’s Brief, in which a Preliminary Objection was raised, was filed on 18/3/2015 but deemed on 11/5/2015. It was adopted by C. O. Ijom, Esq., holding the brief of B. Mohammad, Esq. The Appellant’s Reply Brief filed on 19/10/2015 was also deemed adopted.

As is customary, the merits of the preliminary objection shall first be considered; Efet v. INEC (2011) LPELR-8109(SC); First Bank of Nigeria Plc. v. T.S.A. Industries Ltd (2010)

LPELR-1283(SC). By the said Notice of preliminary objection, the 1st Respondent prayed as follows:
TAKE NOTICE that the 1st Respondent shall at the hearing of this appeal raise a preliminary objection based on the following grounds.
GROUNDS OF OBJECTION
1. Notice and grounds of appeal is fundamentally defective;
(a) Grounds 1 and 2 of the appeal are vague.
(b) Ground 3 is purely on the ground of fact which requires leave on appeal to the Court of Appeal.
(c) Ground 4 is purely an academic exercise and also of fact which requires leave of Court.
(d) Grounds 7 and 8 have no particulars of error and also academic in nature.
(e) A relief sought has nothing in connection with his appeal.
2. This Honourable Court lacks jurisdiction to grant the Appellant’s reliefs.
3. Issues formulated by the Appellants are bad in law and also not supported by the argument.

On the first ground of objection, learned counsel for the 1st Respondent submitted that an appellate Court cannot assume jurisdiction over defective notice and grounds of appeal; relying on Fortune International Bank Plc. v. City Express Bank Ltd (2013)

ALL FWLR (Pt. 679) 1124 at 1140-1141. A ground of appeal that is vague or discloses no reasonable ground of appeal is incompetent. Reliance was placed on Order 6 Rule 3 of Court of Appeal Rules, 2011; Nwuke v. Union Bank Nig. Plc. (2009) ALL FWLR (Pt. 449) 537 at 554. It was argued that Grounds 1 and 2 of the grounds of appeal are vague and do not disclose any reasonable ground. Ground 3 is purely on fact and requires leave of Court, which was not obtained and thus incompetent; relying on Akinyemi v. Odu’a Investment Co. Ltd (2012) ALL FWLR (Pt. 620) 1215 at 1229. It was contended that Ground 4 is also of fact for which leave of Court is required and is purely an academic exercise, which the Court cannot engage in; relying inter alia on Unity Bank Plc. v Bouari (2008) ALL FWLR (Pt. 416) 1825 at 1854. Grounds 7, 8 and 10, it was pointed out have no particulars and, by virtue of Order 6 Rule 2 of the Court of Appeal Rules cannot stand alone. The Court was urged to strike out Grounds1, 2, 3, 4, 7, 8 and 10 for being incompetent.

?In reply to the preliminary objection, the Appellant submitted that the Preliminary Objection was raised without a separate

notice as prescribed in Order 10 Rule 1 of the Rules and therefore incompetent. Reliance was placed inter alia on Famurewa v. Onigbogi (2011) 5 WRN 148 at 152. It was also contended that a preliminary objection cannot challenge only some of the grounds of appeal. The 1st Respondent ought to have filed a motion on notice since the preliminary objection if successful, would not have terminated the hearing of the appeal. Reliance was placed on NNPC v Famfa Oil Ltd (2012) 5-7 MJSC (Pt. 1) 1 at 29. The Court was urged to strike out the preliminary objection.

In the alternative, it was argued that Grounds 1 and 2 of the grounds of appeal as well as their particulars were drawn from the decision on appeal. The grounds cannot be described as vague and disclosing no reasonable ground. It was argued that ground 3 bordered on facts which were introduced into the records and thereon challenge the jurisdiction of the trial Court to make a case for a party. The trial Court had introduced facts not raised by either of the parties and relied on same in the judgment and to dismiss the Appellant’s jurisdiction. The trial Court applied law to non-existing facts, which it

was contended, is a ground of law.

Learned Counsel for the Appellant further argued that ground 4 is not academic but is also a challenge to the jurisdiction of the trial Court. On the objection in respect of grounds 7, 8 and 10, it was submitted that these grounds relate to miscarriage of justice and do not require particulars to be supplied. Learned Counsel in Paragraph 5.14 ? 5.16 of the Appellants’ Reply Brief invited the Court to consider that the constitutional requirement for leave to appeal did not apply to final decisions; relying on Section 241(1) of the 1999 Constitution, as amended. It was submitted that the decision on appeal was a final decision for which no leave of Court to appeal was required. The Court was finally urged to discountenance the preliminary objection.

In dismissing the objection raised by the Appellant that the preliminary objection be dismissed as being incompetent because the 1st Respondent failed to file a separate Notice of Preliminary Objection but merely argued the objection in the 1st Respondent’s brief, I will simply rely on the decision of the Supreme Court in Okereke v. James (2012) LPELR-9347(SC)

wherein the Supreme Court, per Rhodes-Vivour, JSC said:
“The respondent argued a Preliminary Objection in his brief. This is now accepted practice as that procedure obviates the need to file a separate Notice of Preliminary objection.”

In Minister of Works & Housing v. Shittu (2007) 16 NWLR (Pt. 1060) 351, (2007) LPELR-8751(CA), this Court, per Ariwoola, JCA (as he then was) said:
“… it is now settled law that whenever a Respondent does not file a separate notice of preliminary objection to the hearing of an appeal giving three clear days notice thereof before the hearing but merely incorporates the preliminary objection in the Respondent’s brief of argument, it is imperative on the respondent to move the Court to take the preliminary objection first before proceedings to the main appeal… But where the Respondent does not apply for or seek leave of Court before the hearing of an appeal, to move his preliminary objection to the Appellant’s grounds of appeal, the preliminary objection automatically becomes and shall be deemed abandoned…”
See also Order 10 Rule 3 of the Court of Appeal Rules, 2004. The preliminary objection

can therefore rightly be considered, not being abandoned.

As rightly argued by the Appellants, there is no requirement to file a Preliminary Objection where the competence of the entire appeal is not in contention. A preliminary objection is filed against the hearing of the appeal. Where a respondent’s objection if successful would not terminate the hearing of the appeal, a Motion on Notice should be filed; NNPC v. Famfa (supra); Okereke v. James (supra).
However, a preliminary objection is not rendered incompetent simply because it is filed, as in present circumstance, where the competence of the entire appeal is not in contention.

The Appellants as judgment debtors/applicants had sought orders, inter alia, to join the 2nd Respondent herein as a party; to suspend further execution of the judgment delivered by the trial Court on 30/9/2010; and to set aside the said execution. The application was duly argued and the learned trial Judge, in a considered Ruling delivered on 4/12/2012, dismissed the application as being without merit and an abuse of Court process. The instant appeal is against the said ruling of 4/12/2012. The right of

appeal is constitutionally conferred and guaranteed. Section 241 (1) (a) and (b) of the 1999 Constitution, as amended, provides that:
(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;
Section 242(1) Provides:
(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.
These provisions have been judicially interpreted. An Appellant’s right of appeal from the final decision of a trial Court sitting at first instance, by virtue of Section 241 (1)(a) of the 1999 Constitution, as amended, lies as of right to this Court. Where the ground of appeal involves questions of law alone, as provided for under Section

241(1) (b) an Appellant’s appeal would also be as of right. Other appeals from the decision of the trial High Court shall be by leave of either the trial or appellate Court. This provision covers interlocutory decisions.

It is now well settled that leave of Court, where it is required, is a condition precedent to the exercise of the right of appeal. Therefore, failure to obtain leave where it is required renders any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court; Mohammed v. Olawunmi (1990) 4 S.C. 40; Ekulo Farms Ltd v. U.B.N Plc. (2006) 4 S.C. (Pt. 11) 1. Thus, if the decision of the lower Court is a final decision, there would be no requirement for leave of Court.

A final decision has been defined as an order which disposes of the entire controversy on the merits, leaving nothing but the enforcement of that which has been determined. An interlocutory order, on the other hand, is one issued during the course of proceedings, but which does not terminally determine the rights of the parties. So, if an order does not terminally determine the rights of the parties and it can be revisited or reversed by the same Court,

then it is interlocutory. In Ifediora v. Ume (1998) LPELR-1434(SC), the Supreme Court, per Nnaemeka Agu, JSC said:
“…. the test as to whether a decision is final or interlocutory which has been preferred by authoritative decisions in this country has been consistently one which looks at the result, id est, which asks the question: “does the judgment or order, as made, finally dispose of the rights of the parties?”
His Lordship further said:
“On indisputable attribute of all final orders is that once made the judge making it becomes funtus officio, so that it can only be reversed on appeal. So, if a Court as in this case, before or during the course of the hearing of a case, orders something which he can review or reverse at anytime, such order cannot be final.”

The trial Judge, having considered the application of the Appellant and ruled thereon, became functus officio. He lacked the necessary vires to review, reverse or revisit the matter. His decision therein was a final decision. By virtue of the provisions of Section 241 (1) (a) of the 1999 Constitution, as amended, reproduced above, there was therefore no requirement for

leave of Court before an appeal could be filed in respect of a complaint over the said final decision. The grounds of appeal are not incompetent.

On ground 2 of the Preliminary Objection, the 1st Respondent submitted that the reliefs sought upon the resolution of the issues formulated for determination by the Appellants are purely theoretical and of no utilitarian value to the Appellants’ case. That the reliefs have nothing in connection with this appeal. The judgment delivered by the lower Court in suit No. HR/5/2010 on 30/9/2010, which the Appellants seek to have set aside is not on appeal. An appeal against the said judgment was dismissed by this Court. It was submitted that the prayers of the Appellants at the lower Court do not indicate that they are challenging the judgment in Suit No. HR/5/2010. This Court cannot nullify any judgment not properly placed before it on appeal. The Court was urged to strike out the entire grounds of appeal.

In reply, the Appellants submitted that one of the prayers sought at the lower Court was an order for the interpretation of the said judgment of 30/9/2012. The judgment in issue and all the relevant

materials to enable determination of the capacity of the parties and the validity of the judgment which were before the trial Court is part of the Record of Appeal. It was submitted in this appeal, the Appellants seek to set aside the judgment as well as the ruling refusing to set aside the judgment at the trial Court.

It is well settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal. The Supreme Court in Saraki v. Kotoye (1992) 9 NWLR (Pt. 261) 156 at 184, per Karibi Whyte, JSC observed thus:
“It is a well settled proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision – See Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546 at 590. Grounds of appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. However, meritorious the ground of appeal, based either on points of critical constitutional importance or general public

interest, it must be connected with a controversy between parties. This is the precondition for the vesting of the judicial powers of the Constitution in the Courts… parties… are not at liberty to argue grounds not related to the judgment appealed against.”
See also: Ikweli v. Ebele (2005) 7 MJSC 125; CCB Plc. v. Ekperi (2007) 4 MJSC 172. The ground of appeal must therefore arise from and be based on the decision on appeal, which is the matter in controversy between the parties.

The Notice of Appeal set out at page 111 of the Record of Appeal states that it is an appeal against the ruling of the Hon. Justice Elias O. Abua sitting at the High Court of Justice, Cross River State, in Abuochiche Judicial Division Bekwarra delivered on the 4th day of December 2012. The reliefs sought are as follows:
1. An Order declaring that the claimant is also a Defendant in the same suit and this robs the Court of jurisdiction and the judgment is thus a nullity.
2. An Order setting aside the ruling of this Honourable Court delivered on 4/12/2012 and to uphold the application of the Appellants that the said judgment of 30/9/2010 was a nullity and

setting aside the said judgment.

The application upon which the ruling on appeal was predicated sought inter alia an order that the judgment of 30/9/2010 be declared a nullity and set aside. In effect, the competence of the said judgment was also in issue before the trial Court and application for its being set aside refused. The order of the trial Court dismissing the application has given rise to this appeal. The reliefs sought in this Court cannot therefore be described as merely academic.

On the third ground of Objection regarding the competence of the issues formulated for determination, the 1st Respondent contended that issues formulated by the Appellants for determination, which must be formulated from the grounds of appeal, fail this yardstick and are on this basis incompetent; relying on Oyebode v. Gabriel (2013) ALL FWLR (Pt. 559) 1043 at 1066. This argument was refuted by the Appellants.

It is well settled that a Respondent may formulate issues for determination arising from the grounds of appeal; APGA v. Umeh (2011) LPELR-426(SC). Where a Respondent does not expressly adopt the issues formulated by the appellant and fails to

submit alternate issues for determination, he will be deemed to have adopted the issues or issue raised by the appellant; Agbai v. Okagbue (1991) 7 NWLR (Pt. 204) 391; Shibkau v. A.G. Zamfara State (2010) LPELR-4756(CA). I agree with the Appellant that what the 1st Respondent ought to do, in the event that they disagree with the issues as formulated by the Appellants is to formulate their own issues for determination as distilled from the grounds of appeal. In this case, the 1st Respondent did distill a sole issue for determination. This ground of the objection cannot be sustained.

The preliminary Objection therefore fails on all grounds. The issues distilled for determination by the parties shall now be considered.

The Appellants formulated five issues for determination, as follows:
(1) Whether it was the case of the Respondents that Appellants had abandoned prayers 1 and 2 in the motion paper and where the answer is in the negative, was the trial Court right when she raised the said issue suo motu and struck out the said prayers 1 and 2 in the said motion. (Grounds I & II).
(2) Whether Appellants’ case was fairly considered by

the Honourable Trial Judge when he came to a conclusion that the issues raised before the Court by Appellants at the trial Court were well contested at the Court of Appeal and determined on the merit and where the answer is in the negative, was the trial Court right in making a case for the Respondents and relying on same to dismiss Appellants’ case. (Grounds III & XI).
(3) Whether the Learned trial Judge was right in holding that the Court was functus officio to consider whether 1st Respondent both Defendant and Claimant in the same suit, and where the answer is in the negative, what is the effect of a judgment where a party is both Defendant and Claimant in the same suit. (Grounds IV & VII).
(4) Whether the distinguished trial Judge was right when he held that the 2nd Respondent had jurisdiction to execute judgment in the entire state by virtue of Section 270 of the Constitution of Federal Republic of Nigeria 1999 (as amended) and where the answer is in the negative, what is the effect of execution of judgment outside the venue of the Court without service of notice of attachment on Appellants prior to the execution of the said judgment.

(Grounds V and VI).
(5) Whether the Trial Judge was right in refusing the invitation to expunge Respondent’s written address for being a contradiction in term and expunging Appellants Paragraphs 19-21 of their affidavit in support of their motion on notice and where the answer is in the negative, whether bias could be inferred therefrom. (Grounds IX and X).
The sole issue distilled by the 1st Respondent is as follows:
Whether the execution of judgment carried out by the 2nd Respondent (Registrar of High Court of Justice Bekwarra) outside its judicial division (Obudu) is void having regards to S. 34 of Sherriff and Civil Process Law of Cross River State, 2004.

As rightly pointed out by learned Counsel for the Appellants, the sole issue distilled by the 1st Respondent was not tied to any ground of appeal. Issues formulated for determination by a respondent who has not filed a cross appeal or a respondent’s notice, must arise from the grounds of appeal filed by the Appellant; APGA v. Umeh (supra); Nwankwo v. F.R.N. (2002) 4 NWLR (Pt. 809) 1. The respondent ought to state which of grounds of appeal that the issues raised are tied to.

Where such issues raised by the respondent do not arise from the grounds of appeal, it shall be deemed irrelevant or disregarded in the determination of the appeal or struck out; Onyekwelu v. Elf Petroleum Nigeria Ltd (2009) LPELR-2733(SC). Having stated the position of the law, I note that the sole issue distilled by the 1st Respondent is related in content to Issue No. 4 as formulated by the Appellant. I shall therefore consider the sole Issue distilled by the 1st Respondent with the 4th Issue formulated by the Appellant.

On Issue No 1, the Appellant conceded that an applicant who brought a motion on notice supported by an affidavit ought to sustain it with oral argument, but submitted that where a particular averment in the affidavit is not countered, it is deemed admitted. Reliance was placed on Udo v. CSNC (2001) 14 NWLR (Pt. 732) 116; Asafa Foods Ltd v. Alraine (Nig.) Ltd (2002) 52 WRN 1 at 4. The 1st Respondent in reply submitted that this issue did not arise from grounds 1 and 2 and thus incompetent.

The facts surrounding the need to have the 2nd Respondent joined as a party in the application before the lower Court were stated in

Paragraphs 17 and 18 of the affidavit in support of the application, found at page 7 of the Record of Appeal. These depositions were not at all countered by the 1st Respondent. See specifically Paragraphs 2 and 3 of the Counter Affidavit reproduced at pages 50-51 of the Record of Appeal. In this circumstance, there was no controversy or challenge to the joinder of the person of the 2nd Respondent. The only attack by the 1st Respondent in the rejoinder to the Appellants’ address in support of the motion was that the name of the proposed 2nd Respondent ought to have been supplied as the 2nd Respondent on record was not a juristic person. This issue was not addressed at all by the learned trial Judge.

Although the prayers to join the 2nd Respondent were not specifically addressed by the Appellants, the prayers cannot be deemed to have been abandoned, there having been no challenge to their grant. I would therefore resolve Issue No. 1 in favour of the Appellant.

There was an appeal lodged over the judgment delivered on 30/9/2010. The Appellants in address before the lower Court stated as follows:
”’We also admit that because of the absence of

Appellants’ Counsel in Court of Appeal the said appeal was dismissed. The order dismissing the appeal may likely be set aside because the Appellants’ Counsel or the Appellants where (sic) never served any hearing notice. The said dismissal was a nullity’
See page 42 of the Record of Appeal. The 1st Respondent did not at all respond to this assertion in challenge.

The learned trial Judge however in his judgment, at page 102 of the Record of Appeal said:
“From the above excerpt, it is seen that this Court cannot review its decision given earlier on, but could where there is sufficient facts, re-open the case and set aside its judgment given in default of appearance and defence but not on the issues now raised by the applicants here well after they have lost their appeal over these issues, at the Court of Appeal and after they had hotly contested the case on the merit and lost…. Where have they been all this while? What issues did they canvass at the Court of Appeal before their appeal was dismissed thereat?”

I must observe that it does appear that the learned trial Judge was either referring to some other matter or was

downright speculating, which he is not permitted to do. From the Record of Appeal, there is no indication that the appeal lodged in this Court regarding the judgment delivered on 30/9/2010 was ever heard on the merits and dismissed thereafter. Neither the Appellants nor the 1st Respondent made any such assertion. It is trite that a Court of law cannot make a case for the parties, different from the one set up by the parties themselves, whether by their pleadings or affidavits, and proceed to give a decision thereon, without the input of both parties; Kano State Oil and Allied Products Ltd v. Kofa Trading Co. Ltd (1996) 3 NWLR (Pt. 436) 244; Fadlallah v. Arewa iles Ltd (1997) 8 NWLR (Pt. 518) 546, (1997) LPELR-1225(SC); Longe v. First Bank of Nig. Plc (2010) LPELR-1793(SC) (2010) 6 NWLR (Pt. 1159) 1 SC. Usually, a decision given in this circumstance falls short of the requirement of fair hearing and cannot be allowed to stand. However, it must be shown that the trial Court in deciding the case before it, relied solely on the case it improperly made out for the parties, thereby occasioning a miscarriage of justice.

?In determining whether or not the

learned trial Judge premised his decision solely on the appeal alleged to have been dismissed by this Court on the merits, it is instructive to reproduce and examine his conclusion on this issue:
“From the above excerpt, it is seen that this Court cannot review its decision given earlier on, but could where there is sufficient facts, re-open the case and set aside its judgment given in default of appearance and defence but not on the issues now raised by the applicants here well after they have lost their appeal over these issues, at the Court of Appeal and after that had hotly contested the case on the merit and lost.”

Aside from the facts allegedly surrounding the dismissed appeal, the learned trial Judge mainly considered the fact that there were insufficient facts put before the trial Court by the Appellants to ground the setting aside of the judgment of 30/9/2010, more so when the case before the trial Court had been hotly contested on the merit and lost. His decision to refuse the application to set aside the judgment of 30/9/2010 can be sustained in the light of this fact, and that decision does not occasion a miscarriage of

justice.

On Issue No. 3, a Court is said to be functus officio when, simply put, it has disposed of the cause or matter before it on the merits with

a final order. It cannot reopen the cause or matter. It ceases have jurisdiction in respect of the cause or matter; Sanusi v. Ayoola (1992) 11/12 SCNJ 142; Dingyadi v. INEC (2010) 18 NWLR (Pt. 1224) 1; Associated Discount House Ltd v. Hon. Minister of the Federal Capital Territory (2013) LPELR-20088(SC). The only option open to a party aggrieved by the decision is to appeal. A judge does not, however, become functus officio in respect of a judgment given in default and the rights or claims of the parties have not been determined; Mohammed v. Husseini (1998) 11-12 SCNJ 136; Alor v. Ngene (2007) 2 S.C. 1.

The judgment delivered on 30/9/2010 was a final decision. The Appellants contend it was a null decision in that the 1st Respondent, who was the claimant therein, was also a defendant. The trial Court had found and held that the 1st Respondent, as claimant, was also a member of the Bebua-Abuobe family of Akonkib, Obudu. The Appellants had been sued and defended the suit for themselves and as representatives of the Bebua-Abuobe family of Akonkib, Obudu. Their contention is that the Appellants and the 1st Respondent being members of the same family, the

1st Respondent cannot maintain the suit as claimant and be a defendant.

For an action to lie in a representative capacity, there must be: a common interest, a common grievance and the relief must be beneficial to all; Idise v. Williams International Ltd (1995) 1 SCNJ 120; Ofia v. Ejem (2006) 11 NWLR (Pt. 992) 652. A fortiori, an action being defended in a representative capacity must be by persons who have a common interest, against whom there lies a common grievance and the relief sought must be such for which the persons sued can all be held liable, jointly and severally. An essential condition for a person to be deemed part of a particular litigating side is that he has a common interest with the other persons on the same side; Alafia v. Gbode Ventures Nigeria Ltd. (2016) LPELR-26065(SC).

An examination of the Writ of Summons in Suit No. HD/15/2007 leading to the judgment delivered on 30/9/2010, as well as the judgment itself, will reveal that the parties did not have a common interest at all. The 1st Respondent as claimant in the Writ of Summons, found at pages 11-12 of the Record of proceedings, sought the following reliefs against the

Appellants, jointly and severally:
a. Seven hundred and fifty-six thousand, two hundred Naira being special damages for the looting and sale of plaintiff’s property.
b. Five Hundred Million Naira being general damages for trespass.
c. An Order of perpetual injunction restraining the Defendants, their Agents and or Privies from further acts of trespass into the Plaintiff’s compound and farmlands.

In the judgment, the learned trial Judge at page 13 of the Record of Appeal stated the gravamen of the 1st Respondent’s case thus:
“The main thrust of the case of the claimant which is in trespass is that on or about the 18th day of July, 2006, the defendants led a group of young men armed with clubs, knives and shot guns to his house and chased him and his children out on allegations that he is a wizard.”

The learned trial Judge had found that the 1st Respondent was adopted into the family of Bebua-Abuobe by Awhangwu Ikobo, the father of the Appellants. He went on to hold at page 26 of the Record of Appeal:
“The claimant having not left his home voluntarily, his full rights as a son of Awhangwu Ikobo cannot be

extinguished by the acts of the defendants.”
At page 31, the learned trial Judge further held:
“Even as an adopted son in the Bebua-Abuobe family, if 9(sic) indeed he was an adopted son of Awhangwu, he is a bonafide member of the said family. He is as such a co-owner in the estate of the family in which he has been adopted… the defendants cannot erode the acquired rights of the claimant in the estate of Awuhangwu Ikobo for as long as the claimant sees himself as such member… In so far as the other members of the Bebbua-Abuobe family including the defendants did not contribute any money towards the redemption of the said land expended by the claimant, their entry into the said land is in trespass and I so hold.”

The facts as evidenced in the said judgment undoubtedly reveal that although the Appellants, defendants therein and the 1st Respondent, claimant therein, belong to one larger family, they did not by any margin enjoyed a common interest in the issues in controversy submitted to the trial Court for adjudication. For purposes of the issues in contest between the parties in the said Suit No. HR/5/2010, the 1st Respondent cannot

therefore be described as being a defendant as well as a claimant.

The issues submitted for adjudication were pronounced upon by the learned trial Judge in Suit No. HR/5/2010. Thereafter, the trial Court became functus officio. The judgment was pronounced upon consideration on the merits. It is valid and subsisting. It has not been shown to be a nullity. Issue No. 3 is therefore resolved against the Appellants.

The Appellants’ Issue No. 4 is akin to the sole Issue formulated by the 1st Respondent. The complaint of the Appellants is that the 2nd Respondent, who is the Registrar of the High Court of Cross River State, Bekwarra Judicial Division went to execute the judgment delivered on 30/9/2010 in Obudu Judicial Division by attaching the moveable assets of the Appellants.

Section 270 of the 1999 Constitution, as amended provides that there shall be a High Court for each State of the Federation. The learned trial Judge rightly stated that there is only one High Court in Cross River State. It is relevant to note that suit No. HR/15/2007 originated in Obudu Judicial Division but was only transferred to Bekwarra Judicial Division as a part

heard matter when the presiding Judge before whom it was pending was transferred to Bekwarra Judicial Division. The transfer from one judicial division to another was predicated and grounded on the fact that there is only one High Court of Cross River State. Judicial Divisions are only created for administrative purposes.

In the same vein, for purposes of execution under the Sheriff and Civil Process Law, Vol. 6, Laws of Cross River State, 2004, the High Court of the State is one. Section 34 of the Act provides that:
(1) Where a writ of execution has been issued from a Court, hereafter in this Section referred to as a “home Court”, against the property for any person and the property or any of it is out of the local division or district of that Court, the registrar of that Court may send the writ of execution to the registrar of any other Court within the jurisdiction of which the property is or is believed to be with a warrant thereon indorsed or thereto annexed requiring execution of the original writ.
(2) On the receipt of the warrant, the registrar of the other Court shall act in all respects as if the original writ of execution had

been issued by the Court of which he is registrar and shall within the prescribed time –
(a) Report to the registrar of the home Court what he has done in the execution of the writ; and
(b) Pay over all moneys received in pursuance of the writ.
By these provisions, the registrar of a Court in a judicial division from which the writ of execution is issued in respect of properly domiciled in another division may send it to the registrar of the Court in the division for execution. Where the registrar decides to do that, the other registrar shall then give the report and act as provided. As rightly submitted by learned counsel for the 1st Respondent, having regard to the words ‘may’ and ‘shall’ respectively used in these provisions, the competence of an execution is not affected by the fact that a registrar of the ‘home Court’ did not involve the registrar of the division where the properly to be attached is domiciled. It is not the involvement but the obligation on the registrar of the other Court to render the report and pay over of all money received in pursuance of the writ that is mandatory.
?”The word shall when used in a statutory

provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as intended to denote obligation.”
Per Adekeye, JSC in Nwankwo v. Yar’adua (2010) LPELR-2109(SC), (2010) 12 NWLR (Pt. 1209) 518 (SC). See also Emordi v. Igbeke (2011) LPELR-1136(SC).

I would therefore resolve Issue No. 4 in favour of the 1st Respondent and against the Appellants.

The Supreme Court has defined judicial bias in a number of authorities.
“Bias in its ordinary meaning is opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Judge so influenced will be unable to hold an even scale.”
Per Ayoola, JSC Kenon v. Tekam (2001) 7 S.C. (Pt. 111) 49.
?”When a judge appears to give more favour or consideration to one of the parties before him, either in his utterances, attention or actions, which is capable of perverting the cause of justice, or where fair hearing cannot be said to have taken place, all in favour of the party he supports

covertly or overtly, then an allegation of bias against him can be grounded. That of course is a judicial bias.”
Per I. T. Muhammed, JSC in Womiloju v. Anibire (2010) 10 NWLR (Pt. 1203) 545.
In Womiloju v. Anibire (supra) other factors which could show real likelihood of bias were listed as:
1. Hostility of strong personal animosity towards a party.
2. Personal friendship, family or professional relationship.
But there must be a real likelihood of bias, which is not merely based on conjecture. The test is the impression created in the minds of right minded people. If right thinking persons would think that there is a real likelihood of bias or that the trial judge had not been impartial then his decision cannot stand, Womiloju v. Anibire (supra); Saliba v. Lababedi (1972) 72 S.C. 132. In my considered opinion, no evidence of bias by the learned trial Judge is revealed in the Record of Appeal against the Appellants. Issue No. 5 is also resolved against the Appellants.

In the final analysis, all issues having been considered, this appeal fails and is hereby dismissed. The ruling of the High Court of Cross River State,

sitting at Abuochiche, delivered on December 4, 2012, dismissing the application of the Appellant in Suit No. HR/15/2007 is hereby affirmed.
The Appellants shall pay costs of N50,000.00 to the 1st Respondent.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.:My Learned brother, O. A. OTISI, JCA, afforded me the opportunity of reading before now the judgment just delivered. His Lordship has meticulously considered and resolved the issues before us. I am in agreement with his reasoning and conclusion that the circumstances of this appeal justify a dismissal of the appeal for being unmeritorious.

Having resolved all the issues in favour of the Respondents, I agree that the appeal is bereft of merit and should be dismissed. I also dismiss same.

The Ruling of the High Court of Cross River State, sitting at Abuochichi, delivered on December 4, 2012, in Suit No. HR/15/2007 is affirmed.
I abide by the order as to costs made by OTISI, JCA, in the lead judgment.

PAUL OBI ELECHI, J.C.A.: I read before now the judgment just delivered by my learned brother Onyekachi Aja Otisi, JCA. I

am in full agreement with the reasoning and conclusion reached in the judgment.

?Accordingly, I also hereby dismiss the appeal as being unmeritorious. I affirm the Ruling of the Lower Court delivered on December 4, 2012 dismissing the Application in suit No. HR/12/2012.

Appearances

.For Appellant

AND

C. O. Ijom, Esq., holding the brief of B. Mohammad, Esq.For Respondent