THE GOVERNOR OF IMO STATE & ORS v. CHIEF T. O. S. OPARAUGO & ORS
(2019)LCN/13000(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/OW/417/2017
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. THE GOVERNOR OF IMO STATE
2. THE ATTORNEY GENERAL OF IMO STATE
3. THE COMMISSIONER FOR LANDS, SURVEY AND URBAN PLANNING IMO STATE
4. IMO STATE GOVERNMENT Appellant(s)
AND
1. CHIEF T. O. S. OPARAUGO
2. CHIEF DENNIS DIKE
3. CHIEF HERBERT MERE
4. CHIEF IKEFUAKU ANOZIE EMETO
5. CHIEF CYRIL UKAEGBU
6. OHA BONIFACE ANUKAM
7. OHA SHEDRACK OBICHEOZO
8. MRS. IJEOMA ANOKWU
9. CHIEF P.C. NNAWUCHI
10. CHIEF JOHN MARK IGWE
11. MR. SAM OPRAKU
12. SIR ALFRED NGOKA
13. ELDER HENRY NKWOPARA
(For themselves and on behalf of Owerri Community) Respondent(s)
RATIO
WHETHER OR NOT PARTIES CAN AMEND THEIR PLEADINGS TO BRING IN NEW FACTS
The Pretrial information answer in my view, does not preclude the Court below from calling for further and better particulars. This is because the parties were at liberty to amend their respective pleadings to bring in new facts which do not prejudice the adverse party, and in order to do justice in the case. In DESTRA INVESTMENT LTD v. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR. 43883 S.C, it was held that Court?s decision was a discretionary one. It the lower Court was right in its decision that the trial has long been settled that any Grounds of Appeal which challenges an interlocutory decision of a Court (such as the present one) predicated on exercise of discretion, is at best a Ground of mixed law and fact. FBN PLC v. ABRAHAM (2008) 18 NWLR (PT. 1118) page 172; WILLIAMS v. MOKWE (2005) 14 NWLR (PT. 945 page 249. PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Imo State, Owerri Judicial Division delivered on the 19th of October 2017, in Suit No. HOW/380/2016.
FACTS RELEVANT TO THE APPEAL
At the High Court of Imo State, Owerri Judicial Division, the 1st, 2nd, 3rd and 4th Defendants were the Appellants in the present Appeal.
By writ of Summons, dated 30th of August 2016, the Respondents instituted an action against the Appellants claiming the ownership of the EKE UKWU OWERE MARKET situate at Owerri. They also sought a restraining order against the Appellants from demolishing, destroying, relocating, or interfering with the operation of the said market by the Respondents.
?On the 19th of October 2017 after pleadings were filed and exchanged, the Court below commenced pre-trial conference. At the proceedings the Respondents moved an application dated 15th March 2017, seeking an order of the Court below, directing the Appellants to give further and better particulars of matters pleaded in Paragraphs 7, 19 and 20 of the 1st, 3rd and 4th Defendants Statement of
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Defence and Paragraphs 6, 8 and 9 of the 2nd Defendants Statement of Defence.
The Appellants (Defendants in the Court below) filed a thirteen paragraphs counter affidavit with written address on the 16th of June 2017. (1st, 3rd and 4th Defendants), and a 4 paragraphs counter affidavit with written address on 6th of June 2017 (2nd Defendant) in opposition to the affidavit in support of the Application.
The Application was granted as prayed by the Court below. The Court below directed the Defendants to supply further and better particulars of matters pleaded in the Defendants? statement of Defence.
The Appellants, dissatisfied with this Ruling have appealed same.
The Appellants filed a Notice of Appeal on the 20th of October 2017.
They filed a brief of Argument on the 23rd of January 2018 and same was deemed filed on the 26th of March 2018. It is settled by I. I. AMADI, ESQ.
?The Respondents filed their Brief of Argument on the 18th of May 2018 but same was deemed filed on the 28th of June 2018. It is settled by L. A. NJEMANZE, ESQ.
The Appellants reply brief was filed on the 30th of November 2018, but deemed filed on the 3rd of December 2018.
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The Appellants proffered Four (4) issues for determination from the Notice and Grounds of Appeal. They are:-
1. WHETHER the learned trial judge was right to have ordered the Appellants herein to supply the Respondents with further and better particulars of matters pleaded in paragraphs 17, 19 and 20 of the statement of defence of the 1st, 3rd and 4th Appellants and paragraphs 6, 8 and 9 of the statement of defence of the 2nd Appellant, which are facts of the revocation and acquisition of the land/market/subject matter of the suit before the lower Court, and indeed before this appellate Court, in spite of the existence of Imo State Official Gazette No. 16 of 15th June, 2016, pleaded in paragraph 7 of the Appellants? statement of defence. (Ground 1).
2. WHETHER by virtue of Sections 122 and 124 of the Evidence Act, 2011, the Imo State Official Gazette No. 16 of 15th June, 2016, does not constitute general notice to the whole world or simple put a notice in rem within the ambit of the Land Use Act, 1978, which contents ordinarily are taken to be of common knowledge, which admit of no further proof, and which authority
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cannot be reasonably questioned. (Ground 2).
3. WHETHER the refusal of the learned trial judge to uphold the objection of the Appellants and apply the provisions of Sections 122 and 124 of the Evidence Act, 2011, (which workings are clear enough to be given their literal and ordinary grammatical interpretation and meaning) to the Imo State Official Gazette No. 16 of 15th June, 2016, did not occasion a miscarriage of justice to the Appellants. (Ground 3).
4. WHETHER the learned trial judge was right, in spite of the answers given in Form 17 filed by the Respondents to have held in his Ruling as follows:-
?This feature in my view should not and cannot prevent them from asking for such particulars if they feel otherwise. To so hamstring them will not be in accord with substantial and practical justice. The fact that the application has been filed, I am obliged to consider same and it will inequitable to so refuse to consider the application at this stage. I am obliged by the rules of Order 25 (2) (1) to make the necessary orders with respect to further and better particulars. Thus, this application shall be countenanced despite the
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stipulations in their Pre-trial conference Form 17.” (Grounds 5, 6 and 7).
The Respondents on their part proffered two issues for determination in paragraph E of their brief of argument. They are:-
1. WHETHER THE LOWER COURT WAS RIGHT IN GRANTING THE RESPONDENT?S APPLICATION FOR FURTHER AND BETTER PARTICULARS (GROUNDS 1, 2, 3, 6 AND 7)
2. WHETHER THE RESPONDENTS? RESPONSE TO THE QUESTIONS ON THE PRE-TRIAL SHEET (FORM 17) PRECLUDES THE RESPONDENTS FROM APPLYING FOR FURTHER AND BETTER PARTICULARS (GROUND 5)
On the 4th day of March, 2019 the parties adopted their respective briefs of argument.
The Respondent had in paragraph C. I. of their brief of argument raised a preliminary objection that the appeal is incompetent and that this Honourable Court lacks jurisdiction to entertain same. The Grounds for the objection are these:-
1. The Appeal is against interlocutory decision of the lower Court.
2. The interlocutory Appeal is against the exercise of the lower Court discretion under Order 15 Rule 4 of the Imo State High Court (Civil Procedure) Rules 2017.
3. The Grounds of Appeal involve questions of mixed
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law and facts.
4. The Appellants did not seek leave of Court to Appeal on mixed law and facts.
5. The Appeal is a nullity and the Honourable Court lacks jurisdiction to entertain same.
6. Ground 4 does not arise from the decision of the lower Court appealed against.
7. Ground 4 has been abandoned by the Appellants.
I deem it pertinent to consider the preliminary objection before I go into the merits of the Appeal, if necessary.
The first question to consider is whether the Grounds of Appeal has to do with mixed law and facts that would necessitate the obtaining of leave of Court to prosecute this appeal.
It is not in doubt that the suit, the subject matter of this appeal has to do with an interlocutory matter.
What is it that constitutes a Ground of mixed law and facts? In NWADIKE v. IBEKWE (1987) 4 NWLR (PT. 67) 718, it was held inter alia that to determine whether a Ground of Appeal is one of law or facts or of mixed law and facts, is not a straightforward matter as it stretches the ability of the Court to its Limits. Generally, it is an error in law if the adjudicating tribunal took into account some wrong
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criteria in reaching its conclusion, or applied some wrong standard of proof, or when applying the correct criteria, it gave wrong weight to one or more of the relevant factors. Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases, and inference drawn therefrom are grounds of law. Where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground framed on it is a ground of law provided it is limited to admitted or proved and accepted facts. Inference to be drawn from a set of proved or undisputed facts, as distinct from primary facts are matter upon which an appellate Court is as competent as the Court of trial. Also, where a Tribunal states the law on a point wrongly, it commit an error in law. Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based, it is regarded as a ground of law on the premise that in a jury trial, there would have been no evidence to go to the jury.
In the Ruling of the Court below, it observed thus inter alia:-
?The 1st submission is that by the provisions of
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Order 15 3(1) of the Rules, this application is ruled out and cannot be taken. The provisions of Order 15 3(1) of the rules shall be reproduced for clarity. ?In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence and in all other cases in which particulars may be necessary, particulars (with dates and items where applicable) shall be stated in the pleadings.? My simple answer to this is that the inclusion of the words ?and in all other cases clearly allows such application in other cases not bothering on the cases mentioned therein. Thus, this application is clearly allowed by the Civil Procedure Rules of this Court. The 2nd ground is that the Plaintiff in their pre-trial Conference Form 17 stated in the answer thereto that they will have no need for any further and better particulars by the pleadings. This feature in my view should not and cannot prevent them from asking for such particulars if they feel otherwise. To so hamstring them will not be in accord with substantial and practical justice. The fact that the application has been filed, I am obliged to consider
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same and it will inequitable to so refuse to consider the application at this stage. I am obliged by the rules of Order 25 (2) (1) to make the necessary orders with respect to further and better particulars. Thus this application shall be countenanced despite the stipulation in their Pretrial Conference Form 17.?
The fulcrum of the Preliminary objection is that the Court exercised its discretion pursuant to the provisions of Order 15 (4) of the Imo State High Court (Civil Procedure) Rules 2017.
The Pretrial information answer in my view, does not preclude the Court below from calling for further and better particulars. This is because the parties were at liberty to amend their respective pleadings to bring in new facts which do not prejudice the adverse party, and in order to do justice in the case. In DESTRA INVESTMENT LTD v. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR. 43883 S.C, it was held that Court?s decision was a discretionary one. It the lower Court was right in its decision that the trial has long been settled that any Grounds of Appeal which challenges an interlocutory decision of a Court (such as the present one) predicated on
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exercise of discretion, is at best a Ground of mixed law and fact. FBN PLC v. ABRAHAM (2008) 18 NWLR (PT. 1118) page 172; WILLIAMS v. MOKWE (2005) 14 NWLR (PT. 945 page 249. Such a Ground, no doubt requires leave; hence failure to obtain leave in such circumstances render such appeal incompetent. The Appeal would therefore be liable to be struck out.
Akaahs J. S. C. further had this to say inter alia ?The lower Court was right when it found that the decision of the trial Court is a discretionary one. And an appeal questioning an interlocutory decision in exercise of discretion, must be by leave which was not sought before it was filed, notwithstanding the fact that it took the point suo motu, without inviting counsel to address it on the point. No miscarriage of justice was occasioned by resolving that issue suo motu.?
It is my view that the appeal from the Court below, being based on an interlocutory decision of the Court below on its discretionary power, it was incumbent on the Appellant to have sought the leave of Court to prosecute their Appeal and this was not done. The Preliminary objection is hereby upheld.
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This renders this Appeal incompetent and I so hold.
Same is struck out.
N50,000 costs to the Respondents.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
IBRAHIM ALl ANDENYANGTSO, J.C.A.: I have been privileged to have read in advance, the lead judgment just delivered by my learned brother, Hon. Justice Rita Nosakhare Pemu, JCA. I agree with the reasons and conclusion given therein which said reasons left nothing meaningful for me to add.
?I also strike out the appeal and abide by the order made In the said lead judgment with regard to costs.
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Appearances:
I. I. Amadi, Esq.For Appellant(s)
L. A. Njemanze, Esq.For Respondent(s)
Appearances
I. I. Amadi, Esq.For Appellant
AND
L. A. Njemanze, Esq.For Respondent
