KASMAL PROPERTIES LIMITED v. ADENIRAN ADEDOKUN VENTURES NIGERIA LIMITED & ORS
(2019)LCN/13330(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of May, 2019
CA/L/582/2014
RATIO
FUNCTUS OFFICIO: MEANING OF A COURT BEING FUNCTUS OFFICIO
Its imperative to understand what it means for a Court to be functus officio. This honourable Court in PRINCE BURUJI KASHAMU v ATTORNEY GENERAL OF THE FEDERAL REPUBLIC OF NIGERIA (2013) LPELR 22357 (CA) held thus; what is the meaning ofunctus officio When is a Court of law functus officio In Mohammed v Husseini (1998) 14 NWLR (PT.584) P. 108 at 163, the Supreme Court said of functus officio thus:The latin expression functus officio simply meantask performed.PER ABIMBOLA OSARUGUE OBSEKI-ADEJUMO, J.C.A.
WHEN IS A JUDGE FUNCTUS OFFICIO
In other words, once a judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter … a judge is functus officio if he gives judgment on the merits. In Ikpong v Udobong (2007) 2 NWLR (PT. 1017) P. 184 at 206 this Court per Omokri, JCA (of blessed memory) had this to say on the definition of the phrase: The phrasfunctus officio means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no force or authority. Also see Anyaegbunam v A.G Anambra State (2001) 6 NWLR (PT. 710) 532; Onyemobi v President O.C.C (1995) 3 NWLR (PT. 381) 50 and Ukachukwu v Uba (2005) 18 NWLR (PT. 956) 1 at 6
per ABOKI, JCA (PP. 49 50, PARAS. B A).PER V
WORDS AND MEANING: “SHALL”
The Apex Court in GENERAL MUHAMMADU BUHARI V INDEPENDENT NATIONAL ELECTORAL COMMISSION (2008) LPEL 814 (SC), it was held thus;When the wordshall is used in a statute it connotes the intendment of the legislator that what is contained therein must be done or complied with. It does not give room for manoeuvre of some sort, or evasiveness. Whatever the provision requires to be done must be done, and it is not at all negotiable..
per MUKHTAR, JSC (PP. 276 277, PARASD)
It was also held by this honourable Court in MR. UDAK ETIM OKON v MR EKAETTE UDAK OKON (2016) LPELR 42056 (CA);
It is a general rule the use of the word shall connotes and conveys a mandatory message in a statute. See Melaye v Tajudeen (2012) 15 NWLR (Pt. 1323) 315. Fidelity Bank Plc v Monye (2012) 10 NWLR (Pt. 1307) 1, Adeosun v Governor Ekiti State (2012) 4 NWLR (Pt. 1291) 581, Dantata v Mohammed (2012) 8 NWLR (Pt. 1302) 36
per OWOADE, JCA (P. 9, PARAS F).PER ABIMBOLA OSARUGUE OBSEKI-ADEJUMO, J.C.A.
THE RULES OF COURT MUST BE OBEYED
The rules of the Court must be obeyed, this has be over emphasised in a plethora of cases, in the recent case of ADELANI ADEPEGBA & ORS v DR. INNOCENT (2015) LPEL 40706 (CA), it was held thus by this Court;The law is now trite that rules of Court are not mere rules. Indeed, they are to be reckoned with as subsidiary legislations which by virtue of Section 18 (1) of the Interpretation Act have the force of law. See Akanbi vs Alao (1989) 3 NWLR (Pt.108) 118.PER ABIMBOLA OSARUGUE OBSEKI-ADEJUMO, J.C.A.
RULES OF COURT ARE BINDING ON PARTIES
Put differently, rules of Court are not only meant to be obeyed, they are also binding on the parties. See Bango vs Chado (1998) 9 NWLR (Pt. 564) 139, The Hon. Justice KaluAnyah vs African Newspapers of Nigeria Ltd (1992) 6 NWLR 1 (Pt. 247) 319.
per OREDOLA, JCA (PP 13 14, PARAS C- A).PER ABIMBOLA OSARUGUE OBSEKI-ADEJUMO, J.C.A.
Justices
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEIJustice of The Court of Appeal of Nigeria
Between
KASMAL PROPERTIES LIMITEDAppellant(s)
AND
1. ADENIRAN ADEDOKUN VENTURES (NIG) LTD
2. PENTAGON REAL ESTATE INVESTMENT LIMITED
3. ARABA SHITTA DADA
4. PASTOR SAMUEL
5. ANOFI JINADU OGUNREMI
6. GANIU LAWAL OGUNDARE
7. LATEEF KUSHORO
8. YESIRO DISU TAIWO
9. WASIU KAYODE SHODIPE
10. ABIODUN AYUBA OGUNBO
11. KABIRU JIMOH OGUNLEYE
12. SGM PROPERTIES LIMITED
13. ECOBANK NIGERIA PLC
15. MAIN ONE CABLE CO. LTDRespondent(s)
ABIMBOLA OSARUGUE OBSEKI-ADEJUMO, J.C.A.(Delivering the Leading Judgment): This appeal is against the order of the High Court of Lagos State made by Honourable Justice Okikiol Ighile on the 28th of May, 2014 in Suit No: LD/771/2008, wherein the Respondents on 1/7/2008 commenced an action against the Appellants claiming the following reliefs:
1. A declaration that the claimant is the owner and the person entitled to the possession of all that piece or parcel of land at Ogombo Village Eti Osa local Government Area of Lagos State shown on Plan No ASC/LA/146B/96 dated 9th July, 1996 drawn by F. A Ogunbadejo attached to the Deed of Assignment registered as No. 43/43/2200 of the land Registry of Lagos.
2. A declaration that the Ogudu chieftaincy family having assigned all that piece or parcel of land at Ogombo Village Eti Osa Local Government Area of Lagos state shown on Plan No. ASC/LA/146B/96 dated 9th July, 1996 drawn by F. A Ogunbadejo which said plan is attached to the Deed of Assignment registered as No. 43/43/2200 of the land Registry of Lagos, the Ogudu Chieftaincy family have no land or any property to assign or
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transfer to any person out of the land already assigned to the claimant and any purported assignment to any person is null and void by virtue of the doctrine of NEMO DAT QUOD NON HABET.
3. An Injunction restrain the Defendants whether by itself, its agents, servants, employees otherwise howsoever from remaining on or continuing in occupation of the said land at Ogombo Village Eti Osa Local Government Area of Lagos State which land is more particularly described and delineated on Plan No. ASC/LA/146B/96 dated 9th July, 1996 drawn by F. A Ogunbadejo.
4. N10 MILLION Damages.
This appeal is however against the ruling of the trial Court, wherein the trial judge granted the 1st Respondens oral application on 28/5/2014, who orally sought an order for maintenance of status quo, directing all parties to visit the disputed land in Order to ascertain/verify state of developments on the disputed property, (page 1860c, lines 5 of the Record of Appeal). The ruling of the Court below readsa. it shall be and it hereby ordered that all parties herein shall maintain status quo pending the determination of this matter.<br< p=””>
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b. It is also ordered that representatives of each party with the ACR (Litigation) and the Registrar of this Court shall visit the land in issue in particular regarding the 11th Defendant (Appellant/Applicant) after registering visit as the nearest police station.
c. A photographic evidence of state of the property and report in respect of same shall be recorded by the ACR (Litigation) in the Court fil
(Page 1860 F Record of Appeal).
The Appellant dissatisfied with the ruling filed its Amended Notice of Appeal dated 13/7/17 and deemed 24/9/18. It is against this ruling that an appeal lies before this Court.
The Appellant filed its brief of Argument on 13/7/17 and deemed 24/9/18 settled by Prof. Taiwo Osipitan, SAN; Oluwatosin I. Adisa, Esq; Oluwatosin Daodu (Mrs) of Bayo Osipitan & Co, wherein he formulated 2 issues for determination, wit;
1. Whether in light of the decision of Learned trial Judge on 26/6/2013, granting accelerated hearing of the suit, in lieu of interlocutory injunction, learned trial judge was functus officio and therefore estopped from granting the order for the maintenance of status quo pending the
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determination of the suit. (Ground 1 & 2)
2. Whether in light of the provisions of the High Court of Lagos State Civil Procedure Rules, 2004 prescribing that all applications to the Court must be by way of motion and supported by Affidavit evidence and a Written Address. Learned trial judge rightly or wrongly made the order dated 28/5/2014 for visit to the disputed land by parties and their Counsel and for maintenance of status quo pending the determination of the suit on the strenght of 1st Respondens Counsel oral application/submission. (Grounds 3 & 4)
The 1st Respondent filed a notice dated 11/4/19 settled by Taiwo Ojo, Esq; Afeez Olabisi, Esq; Chukwuebuka Anyiam, Esq of Olalekan Ojo & Co, to contend that the decision of the lower Court on the 28th of May, 2014 be varied as follows:
1. That decision of the Court below dated 28th May, 2014 be set aside;
2. That the matter be returned to the lower Court to commence De Novo from Case Management Conference Stage at the Lagos Judicial Division of Lagos State High Court and r assigned by the Admin Judge of the Lagos State High Court Judicial Division to another
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judge other than the trial judge Hon. Justice Bola Kikiolu Ighile.
3. An order directing the Court below to accelerate the hearing of the suit.
The grounds for which the 1st Respondent intends to rely on shall be reproduced as follows;
1. That the order made on the 28th May 2018 by the lower Court due to this Appeal.
2. That the matter has since 28th May 2014 being stayed at the lower Court due to this appeal
3. That this Appeal has hindered the progress of suit at the lower Court as the matter commenced in 2008 is still at the case management conference stage till date (11 years)
4. This Appeal does not dispose off the right of the parties in the substantive suit below in any manner.
5. The 1st Respondent is more interested in the substantive suit being heard and disposed of timeously.
6. That it is in the interest of justice and that of the 1st Respondent and other parties that the decision of the Court below be varied to prevent further appeal to the Supreme Court in the case the Appeal is dismissed thereby preventing further delay.
7. The lapse of time replete with hazards and unexpected events.
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At the hearing of this appeal, on the 15th April 2019, the 4th, 5th and 14th respondents who were represented by counsel informed the Court that they conceded to the appeal and asked that the appeal be allowed. The 1st respondent counsel stated that he filed forms 9 under the Court of Appeal Act which is the Respondes notice to vary the judgement. None of the respondents filed brief.
Therefore, this appeal shall only be heard on the Appellant brief of argument. However, notwithstanding the 1st Respondens notice, it does not automatically make it an admitted appeal it would still be determined on its merit.
SUBMISSION OF COUNSEL
The Appellans counsel on the issue 1 submitted that the order made on the 28/5/2014 was not made on the basis of a written motion/Application but by way of an oral application made by the claimant/1st Respondens senior counsel and supported by some other defence counsel including the counsel to the 12th Respondent. He also stated the fact that prior to the Order of 28/5/2014, the trial Court ruled on the 12th Defendans application for interlocutory injunction, refusing the
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application for Interlocutory injunction and instead granted accelerated hearing of the suit in lieu of the interlocutory Injunction sought. At page 1873 of the Records, the reason for trial judgs holding was stated;From the reliefs sought in the statement of claim, the affidavit in support of the Application and the reaction of the Respondents and facts contained herein as they are presented it will involve this Court delving into the substantive matter on merit at this interlocutory stage
In light of the above, the Appellas counsel submitted that the trial Court having refused to grant interlocutory injunction in favour of the 12th Defendant and having granted accelerated hearing of the suit, in lieu of injunction is functus officio with respect to injunction and preservation orders in the suit pending the final determination of the suit.
He further submitted that, no appeal was filed against that decision of the Court refusing the interlocutory injunction and the granting of accelerated hearing of the suit, all parties as well as the Court are estopped from acting contrary to the decision of the Court. He
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relied on BABATUNDE v OLATUNJI (2000) 2 NWLR (PT. 646) 557 at 568 G; ODU v JOLAOSO (2005) 16 NWLR (PT.950) 178 at 195 PARA A; NIKAGBATSE v OPUYE (2010) 14 NWLR (PT. 1213) 50 at 81 PARA H; SHUGABA v UBN PLC (1999) 11 NWLR (PT. 627) 459.
The Appellas counsel submitted that the learned trial judge ruled against the interlocutory injunction against the backdrop of the fact that the issues raised in the motion will touch on the substantive issues is bound by her decision. He stated further that the decision of learned trial judge on the maintenance of status quo pending the determination of the substantive suit amounts to a reversal of the decision of the same trial Court of 26/6/2013 refusing an injunctive Order, he relied onADEDAYO v BABALOLA (1995) 7 NWLR (PT. 408) PG 383 at 401, PARAS E F; OSHOBOJA v AMIDA (2009) 18 NWLR (PT. 1172) 188 PG 209, PARA E H; OGBOGU v NDIRIBE (1992) 6 NWLR (PT. 245) 40 at 6 69, PARAS D.
Lastly, on issue 1, the Appellans counsel submitted that it was abuse of Court process for the claimant/1st Respondent whose motion for interlocutory injunction was still pending
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in the Court to apply orally for preservative orders for the maintenance of status quo. The 12th Defendant whose motion for interlocutory injunction was refused, to subsequently support the claimans oral application amounted to abuse Court process. He relied AGWASIM v OJICHIE (2004) 10 NWLR (PT. 882) 613 at 624 PARAS E; CHINDO v ISAH (2011) 4 NWLR (PT. 1236) PG 27 at 36 PARA A; ANYADUBA v NRTC CO.LTD (1990) 1 NWLR (PT. 127) 397; SARAKI v KOTOYE (1992) 9 NWLR (PT. 264) 158.
On issue 2, the Appellants counsel submitted that the trial judge acted contrary to the letters and spirit of Order 38 Rule 1 (1) & (2) and Order 39 Rule (1) of the High Court of Lagos State Civil Procedure Rules, 2004 since the Orders of 28/05/2014 was based on the oral application of claimans senior counsel. He relied on KALIEL v ALIERO (1999) 4 NWLR (PT. 439) PG 139 at 154 PARA. C; ABIMBOLA v ADEROJU (1999) 5 NWLR (PT. 601) 100 at 111 PARA F G; KATTO v CBN (1991) 9 NWLR (PT. 214) PG 126 at 147 PARA A; ACHINEKU v ISHAGBA (1988) 4 NWLR (PT. 89) 411 in submitting that it was mandatory for the claimant/1st Respondent
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to file a formal written application in order to enable the court exercise jurisdiction over his application. He concluded that the Order on the strength of the oral application of the claimant/ 1st Respondents was made without jurisdiction and consequently void, reliance was placed on GOVERNMENT CRS v ASSAM (2008) 5 NWLR (PT. 1081) 658 at 671 PARA C; OFIA v EJEM (2006) 11 NWLR (PT. 992) 652 at 663 PARAS D.
RESOLUTION
On issue 1 of the Appellans brief of Argument, for clarity purposes I will reproduce here under;Whether in light of the decision of Learned trial Judge on 26/6/2013, granting accelerated hearing of the suit, in lieu of interlocutory injunction, learned trial judge was functus officio and therefore estopped from granting the order for the maintenance of status quo pending the determination of the suit. (Ground 1 & 2
Its imperative to understand what it means for a Court to be functus officio. This honourable Court in PRINCE BURUJI KASHAMU v ATTORNEY GENERAL OF THE FEDERAL REPUBLIC OF NIGERIA (2013) LPELR 22357 (CA) held thus;
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what is the meaning ofunctus officio? When is a Court of law functus officio? In Mohammed v Husseini (1998) 14 NWLR (PT.584) P. 108 at 163, the Supreme Court said of functus officio thus:The latin expression functus officio simply meantask performed. Therefore, applying it to the judiciary, it means that a judge cannot give a decision or make an order on a matter twice. In other words, once a judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter … a judge is functus officio if he gives judgment on the merits. In Ikpong v Udobong (2007) 2 NWLR (PT. 1017) P. 184 at 206 this Court per Omokri, JCA (of blessed memory) had this to say on the definition of the phrase: The phrasfunctus officio means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no force or authority. Also see Anyaegbunam v A.G Anambra State (2001) 6 NWLR (PT. 710) 532; Onyemobi v President O.C.C (1995) 3 NWLR (PT. 381) 50 and Ukachukwu v Uba (2005) 18 NWLR (PT. 956) 1 at 6
per ABOKI, JCA (PP. 49 50, PARAS. B A).
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In this instant case, the trial Court in page 1873 of Records ruled against an interlocutory Injunction brought by the 12th Defendant in the suit, who sought the Court for the following claims in page 1871 of recordsAn Order of Interlocutory injunction restraining the claimant, 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th Defendants and other persons unknown whether by their agents, privies, servants or representatives or otherwise however from entering, occupying, using, selling, alienating, transferring or dealing by whatever means with the parcel of land subject matter of this suit pending the determination of this suit
AND FOR SUCH FURTHER ORDERS as this Honourable Court may deem fit to make in the circumstances
The learned trial judge on 26/6/2013 refused the application of the 12th Defendant and rather granted accelerated hearing in lieu of the Interlocutory injunction. He reasoned and held thus in pages 1873 – 1874;
From the reliefs sought in the statement of claim, the Affidavit evidence in support of the application and the reaction
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of the Respondents and the facts contained therein as they are presented it will involve the Court delving into the substantive matter on merit at this interlocutory stage.
I find that facts cannot be resolved without attempt at opening up the merits of the case. I therefore find it imperative not to go into the factual issues now as this will amount to hearing the matter twice and no Court has time to hear a matter twice.
It is in this state of the law that the caution that a trial judge should not to give a decision on the merits at an interlocutory stage is related. No interlocutory injunction should be granted no matter how strong the Applicants case may appear to be at the stage where the substantive and interlocutory reliefs are substantially the same
…This application is hereby struck out to make room for accelerated hearing in this suit
The reasoning of the trial Court from the above ruling clearly shows that in refusing to grant the 12th Defendants application, it was trying to avoid the hearing of the matter twice as that what a grant of the application would amount to. Therefore, does the trial Court decision on
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the 28/5/2014 amounts to the trial Court assuming appellate jurisdiction/status over its decision? The decision of the trial Court on the 28/5/2014 shall be reproduced again for emphasis sake;1. IT SHALL BE AND IT IS HEREBY ORDERED that all parties herein shall maintain STATUS QUO pending the determination of this matter.
2. IT IS ALSO ORDERED that representatives of each party with the ACR (LITIGATION) and the Registrar of this Court shall visit the land in issue in particular regarding the 11th Defendant after registering visit at the nearest police station.
3. A PHOTOGRAPHIC EVIDENCE of the state of the property and report in respect of same shall be recorded by the ACR (LITIGATION) and exhibited in the Cous file.
4. Cost of N50, 000 (fifty thousand naira) is awarded in favour of the claimant and N30, 000 (thirty thousand naira) in favour of 12th Defendant against the 2nd 10th Defendants.
5. ALL COST AWARDED shall be paid before the next adjourned date.
In ALHAJI HASSAN KHALID v ALNASIM TRAVELS & TOURS LIMITED & ANOR (2014) LPELR 22331, this Court held thus;
14…the phrase functus officio means task performed; having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. This means in practice that idea that the specific duties and functions that an officer was legally empowered and charged to perform have been wholly accomplished and, thus, the officer has no further authority or legal competence based on the original commission. This is because the thing which originally had life becomes dead or moribund after the performance of the connection with a Court, it means that once a Court has decided a matter before it, that Court has no further force or authority over the matter and it lacks competence or jurisdiction to review or revisit its decision and/or to re-open the said matter for further deliberations. It cannot assume appellate status over its decision…
per ABIRU, JCA (PP. 28 -29, PARA D).
It is pertinent to note that, there was no application to set aside the Cours decision of 26/6/2013 and it was still valid and subsisting when the decision on maintenance of Status Quo pending the determination of the substantive suit
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amounts to a reversal of the early decision of 26/6/2013.
The Appellas counsel submitted in page 10, paragraph 4.11 of the Appellants brief of argument that, it is an abuse of Court processes for the claimant/1st Respondent whose motion for interlocutory injunction is still pending in the Court below to apply orally for preservatives orders for the maintenance of status quo. It further submitted that it was also an abuse of Court process for the 12th Defendant, whose motion for Interlocutory injunction was rejected to subsequently obtain the order by supporting the claimans oral application.
In determining abuse of judicial process, the Court inASHLEY AGWASIM & ANOR V DAVID OJICHIE 256(SC) held thus;
In the determination of abuse of the judicial process, the Court will consider the content of the first process vis a vis the second one to see whether they are aimed at achieving the same purpos
The claimant/1st Respondent filed a motion for interlocutory injunction dated 16th November, 2011 and in page 811 of the records, which is still pending before
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the Court. Its oral application for preservative orders for the maintenance of Status quo was aimed at achieving the same purpose as the motion filed 16th of November. This amounts to an abuse of Court processes.
Issue one is therefore resolved in favour of the Appellant.
On issue 2, which deals with the correctness or otherwise of the decision of the learned trial judge in entertaining and granting the claimant/1st respondes oral application, despite the earlier decision on 26/6/2013 and the grant of an accelerated hearing of the suit in lieu of Interlocutory injunction.
The Appellas counsel submitted in its brief of argument, page 12, paragraph 5.02 5.04, which shall be reproduced hereunder;
Which is supported from facts in the record of proceedings at page?
5.02 When the case came up for continuation of Case management Conference on 28/5/2014, Claimant/1st Respondens Senior counsel orally informed the Court that his client had discovered more than a month ago that developments were ongoing on the disputed land and the Appellant had stationed OPC members on the land to offer protection to
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developers.
5.03 The claimans counsel who had indicated his preparedness to file necessary papers to back up the allegation suddenly turned around and orally requested for an Order for the maintenance of Status quo pending the determination of the suit and Order for parties to inspect the property, with liberty to report back to Court on the alleged ongoing developments on the property. (Page 1860c of the Record of Appeal)
5.04 The 12th Defendans counsel whose application for interlocutory injunction was refused by the Court on 26/6/2013 also supported the oral Application. In view of the oral nature of the Application the Appellants counsel was taken by surprise and was only able to deny knowledge of such development. Appellants representative who could confirm or deny the allegation was not in Court. (Page 1860c of the Record of Appeal) (UNDERLINING MINE)
The Appellas counsel furthered submitted that Court actions in granting the Claimans application was against Order 39 Rules 1 (1) and (2) of the High Court of Lagos State (Civil Procedures) Rules, 2004of the Court which was in force.Order 39 Rules 1
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(1)and (2) the High Court of Lagos State (civil procedures) Rules, 2004provides as follows;
1. Where by these rules any application is authorized to be made to a Judge, such application shall be made by motion which may be supported by affidavit and shall state under what rule of Court or Law the application is brought. Every motion shall be served within five days of filing.
2. Every such application shall be accompanied by a written address in support of relief sought. (UNDERLINING MINE)
The above excerpt from the Appellans brief of argument (emphasis on the underlined words) shows that the Appellans counsel was surprised and unprepared for the application and coult give a proper response to the claimant/1st respondens application. The oral application made by the Claimant/1st Respondents is against the provisions of Order 39 Rules 1 (1) and (2) the High Court of Lagos State (Civil Procedures) Rules, 2004.
The use ofshall in Order 39 Rules 1 (1) and (2) the High Court of Lagos State (Civil Procedures) Rules, 2004by the draftsmen is meant to make the provision mandatory. The
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Apex Court in GENERAL MUHAMMADU BUHARI V INDEPENDENT NATIONAL ELECTORAL COMMISSION (2008) LPEL 814 (SC), it was held thus;When the wordshall is used in a statute it connotes the intendment of the legislator that what is contained therein must be done or complied with. It does not give room for manoeuvre of some sort, or evasiveness. Whatever the provision requires to be done must be done, and it is not at all negotiable..
per MUKHTAR, JSC (PP. 276 277, PARASD)
It was also held by this honourable Court in MR. UDAK ETIM OKON v MR EKAETTE UDAK OKON (2016) LPELR 42056 (CA);
s a general rule the use of the wordsha connotes and conveys a mandatory message in a statute. See Melaye v Tajudeen (2012) 15 NWLR (Pt. 1323) 315. Fidelity Bank Plc v Monye (2012) 10 NWLR (Pt. 1307) 1, Adeosun v Governor Ekiti State (2012) 4 NWLR (Pt. 1291) 581, Dantata v Mohammed (2012) 8 NWLR (Pt. 1302) 36
per OWOADE, JCA (P. 9, PARAS F)
The Rules of the Court are provided to give guidance, avoidance of surprises and preservation of parties right to fair
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hearing and its not meant to be treated with levity or at the will and whims of any one.
Therefore, the application for maintenance of status quo by the Claimant/1st Respondent should have by a motion and supported by a written address as provided in Order 39 Rule 1 (1) & (2) of the High Court of Lagos state (civil procedures) Rules, 2004. The rules of the Court must be obeyed, this has be ove emphasised in a plethora of cases, in the recent case of ADELANI ADEPEGBA & ORS v DR. INNOCENT (2015) LPEL 40706 (CA), it was held thus by this Court;The law is now trite that rules of Court are not mere rules. Indeed, they are to be reckoned with as subsidiary legislations which by virtue of Section 18 (1) of the Interpretation Act have the force of law. See Akanbi vs Alao (1989) 3 NWLR (Pt.108) 118. Hence, the dire need for compliance therewith. It is thus further settled, that when there brazen non- compliance with mandatory rules of Court, the Court should remain passive and toothless. It should bark and bite. Thus, there must be sanction, otherwise the purpose aimed at, when the rules were enacted will be defeated
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and there will be no certainty or predictability with regard to application of the law. Put differently, rules of Court are not only meant to be obeyed, they are also binding on the parties. See Bango vs Chado (1998) 9 NWLR (Pt. 564) 139, The Hon. Justice KaluAnyah vs African Newspapers of Nigeria Ltd (1992) 6 NWLR 1 (Pt. 247) 319.
per OREDOLA, JCA (PP 13 14, PARAS C- A).
Issue 2 is resolved in favour of the Appellant.
In the light of the resolution of all issues in favour of the Appellant, the appeal succeeds and is allowed. The ruling of High Court of Lagos delivered on 28th May, 2014 Coram BOLA OKIKIOLU-IGHILE, J is set aside.
The case file is hereby sent back to the Chief Judge of Lagos State for commencement de-novo by an accelerated order. Parties are to bear their costs respectively.
RESPONDENS NOTICE
The 1st Respondent filed a notice dated 11/4/19 settled by Taiwo Ojo, Esq., Afeez Olabisi, Esq., Chukwuebuka Anyiam, Esq of Olalekan Ojo & Co., to contend that the decision of the lower Court on the 28th of May, 2014 be varied as follows
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a. That decision of the Court below dated 28th May, 2014 be set aside;
b. That the matter be returned to the lower Court to commence De Novo from Case Management Conference Stage at the Lagos Judicial Division of Lagos State High Court and r assigned by the Admin Judge of the Lagos State High Court Judicial Division to another judge other than the trial judge Hon. Justice Bola Kikiolu Ighile.
c. An order directing the Court below to accelerate the hearing of the suit.
The grounds for which the 1st Respondent intends to rely on shall be reproduced as follows;
1. That the order of the lower Court Appealed against by the Appellants was made on the application of the 1st and 2nd Respondent.
2. That the matter has since 28th May, 2014 being stayed at the lower Court due to this appeal.
3. That this Appeal has hindered the progress of suit at the lower Court as the matter commenced in 2008 is still at the case management conference stage till date (11 years).
4. This Appeal does not dispose off the right of the parties in the substantive suit below in any manner.
5. The 1st and 2nd Respondents are more interested in the substantive suit being heard and disposed of
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timeously.
6. That it is in the interest of justice and that of the 1st and 2nd Respondents and other parties that the decision of the Court below be varied to prevent further appeal to the supreme Court in the case the Appeal is dismissed thereby preventing further delay.
7. The lapse of time replete with hazards and unexpected events.
It is imperative to set out the provision of Order 9 Rule 1 of the Court of Appeal Rules, 2016, which provides as followsA Respondent who not having appealed from the decision of the Court below, desires to contend on the appeal that the decision of that Court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make, or not to make in the event, as the case may be.”
The Respondent at the hearing stated that it was not opposing the Appeal, the Respondent did not file any Respondes brief nor cross appeal.
The question is when is a respondens notice filed? The Apex Court
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had time to state the essence of a respondens notice in OGUNLADE v ADELEYE (1992) LPELR 2340 SC and when a respondent can file a cross-appeal;
“… a respondent’s notice is only available to vary and retain the judgment and not to reverse same, so that where a complete reversal of the decision of the lower Court is sought by a respondent what he has to do is to file a cross-appeal instead of a respondent’s notice vide Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214 (217): Sunmonu v. Ashorota (1975) 1 NMLR 16.” per OMO, J.S.C (P. 17, PARAS. B-C).
The duty of a Respondent is to defend the judgement, in this case the respondents have not said that the judgement is wrong and by filing the respondents notice on the ground that the judgement be set aside, they have disowned the judgement.
Such a notice cannot disown the judgement but can vary it in other areas; therefore, the respondent is wrong in law in filing on this ground.
Secondly, the grounds for the setting aside the said judgement are not grounds known to law for a respondent notice. This Court put it clearly in SORUNGBE & ORS v LAGOS SATE URBAN RENEWAL BOARD & ORS
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(2017) LPELR – 43378 (CA) thus;
“The Respondent’s Notice of Contention is resorted to where the position of the respondent is that the judgment is correct but that the judgment was based on wrong grounds or premise; and that there is enough evidence on record which can sustain the judgment on other grounds other than those relied upon by the trial Court. The Respondent’s Notice of Contention postulates the correctness of the judgment. See AMERICAN CYANAMID COMPANY vs. VITALITY PHARMACEUTICALS LTD (1991) 2 NWLR (PT 171) 15 or (1991) LPELR (461) 1 at 23-24, SUMONU vs. ASHOROTA (1975) 1 NMLR 16 and LAGOS CITY COUNCIL vs. AJAYI (1970) 1 ALL NLR 291. It goes without saying that a Respondent’s Notice that postulates the correctness of the judgment appealed against cannot complain about error in law in the judgment. Where a Respondent contends that the judgment was the product of an error in law, then it presupposes dissatisfaction with the judgment and the logically appropriate procedure will be to file a cross appeal to correct the error in law and not a Respondent’s Notice: AFRICAN CONTINENTAL SEAWAYS LTD vs. NIGERIAN DREDGING ROADS AND GENERAL WORKS LTD
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(1977) 5 SC 235, ELIOCHIN NIG. LTD vs. MBADIWE (1986) 1 NWLR (PT. 14) 47 and ORO vs. FALADE (1995) 5 NWLR (PT 396) 385.”
per OGAKWU, J.C.A (PP. 6-7, PARA. E)
In line with the above judgement, the Respondents here have not taken the proper step to actualize their desire and the grounds set out are not grounds for a respondents notice, it contradicts the essence.
On the whole, this respondents notice fails and is dismissed.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I am in entire agreement with, and do not desire to add to the reasoning and conclusions reached by my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA, in the judgment just delivered. For those same reasons, I concur in holding that the appeal has merit and ought to be allowed. I also hold that the Respondents’ Notice which seeks to set aside the decision of the lower Court is incompetent.
I therefore join in allowing the appeal on the same terms as set out in the lead judgment.
TOBI EBIOWEI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA. I
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agree with the judgment and I have nothing to add.
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Appearances:
Ayodeji Awobiyide
For Appellant(s)
Adebayo Adedokun for 1st Respondent.
Mobolaji Akintunde for 3rd-11th Respondents.
Modupe Amire for 12th Respondent.
A.N. Salau for 14th RespondentFor Respondent(s)
>
Appearances
Ayodeji AwobiyideFor Appellant
AND
Adebayo Adedokun for 1st Respondent.
Mobolaji Akintunde for 3rd-11th Respondents.
Modupe Amire for 12th Respondent.
A.N. Salau for 14th RespondentFor Respondent
