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ACHALLA & ORS v. OKAFOR & ORS (2022)

ACHALLA & ORS v. OKAFOR & ORS

(2022)LCN/15980(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, April 28, 2022

CA/K/296/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. NGOZI ACHALLA 2. EUGENE OKAFOR 3. PATRICK OKAFOR 4. KELVIN OKAFOR 5. OSITA OKAFOR 6. MAUREEN OKAFOR 7. VERONICA OKAFOR 8. NWAMAKA OKAFOR 9. CHIKA OKAFOR APPELANT(S)

And

1. IFEOMA ROSEMARY OKAFOR 2. CHIDERA OKAFOR 3. MARYANN OKAFOR 4. CHUKWUEMEKA OKAFOR 5. CHISIMDI OKAFOR (2nd – 5th Respondents Suing By Their Next Of Friend, Ifeoma Rosemary Okafor) 6. PROBATE REGISTRAR, KADUNA STATE RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE COURT OF APPEAL IS EMPOWERED TO LOOK INTO THE CONTENTS OF A RECORD OF APPEAL

This Court is empowered to look into the contents of the record of appeal and make use of the documents and facts contained therein and draw inferences therefrom. See the cases of TEXACO PANAMA INC VS. SHELL PETROLEUM DEVELOPMENT CO. LTD (2002) 5 NWLR (PT. 759) 209 and CONGRESS FOR PROGRESSIVE CHANGE VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2011) 18 NWLR (PT. 1279) 493 AT 567 D – H. PER IDRIS, J.C.A.

WHETHER OR NOT THE COURT OF APPEAL IS EMPOWERED TO GRANT A CONSEQUENTIAL ORDER

A consequential order is not one merely incidental to a decision but one necessarily flowing directly and naturally from, and inevitably consequent upon it. See the case of AKINBOBOLA VS. PLISSON FISKO (1991) 1 NWLR (PT. 167) 270 at 288. Thus, a consequential order gives meaning and effect to a judgment without granting a fresh relief. It must be a product or by-product of the main suit and the evidence.

Hence, the law gives the Court the inherent power to grant consequential orders in deserving cases. See the cases of EAGLE SUPER PACK (NIG) LAD VS. ACB PLC (SUPRA), AKEEM VS. UNIVERSITY OF IBADAN (2003) 10 NWLR (PT. 829) 584, REGD. TRUSTEES, APOSTOLIC CHURCH VS. OLOWOLENI (1990) 6 NWLR (PT. 158) 514, AMAECHI VS. INEC (2008) 5 NWLR (PT. 1080) 227, UNITY BANK PLC VS. DENCLAG LTD (2012) 18 NWLR (PT. 1332) 293, EZE VS. GOV. ABIA STATE (SUPRA); OSUJI VS. EKEOCHA (SUPRA) (2009) 7 SCNJ 248, ISHOLA VS. FOLORUNSO (2010) 13 NWLR (PT. 1210) 169, OSIEC VS. AC (2010) 19 NWLR (PT. 1226), TINDAFAI VS. JARA (2016) 8 NWLR (PT. 1513) 19 and MAMMAN VS. HAJO (2016) 8 NWLR (PT. 1515) 411 respectively. PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a writ of summons dated the 9th day of April, 2018, the 1st – 5th Respondents as Plaintiffs at the Court below, claimed jointly and severally against the Appellants and the 6th Respondent as follows:
1. Declaration that the 1st Plaintiff is the lawful married wife and the 2nd to 5th Plaintiffs are the legitimate children of late Paul Abuchi Okafor (Deceased). Plaintiffs are entitled to the Estate of late Paul Abuchi Okafor (Deceased).
2. A Declaration that the first Plaintiff being the lawful wedded wife of the deceased is entitled to be granted the letter of administration to the estate of the deceased for herself and her next of friend.
3. An Order restraining the Defendants or their agents from tempering, meddling, taking possession of or disposing of the properties of late Paul Abuchi Okafor.

It is the claim of the 1st Respondent at the trial Court that she is the lawfully wedded wife of Late Paul Abuchi Okafor (Deceased) and the mother of the 2nd to the 5th Respondents who are the legitimate children of Late Paul Abuchi Okafor (Deceased) and that the 1st Appellant is the secretary and mistress of Late Paul Abuchi Okafor (Deceased) and the 2nd to the 9th Appellant are the siblings of the deceased.

It is also the claim of the 1st Respondent that she got married to the deceased in the year 1996 under the native law and custom of Igbukwu and under the Act and that her marriage with the deceased produced 4 (four) children ages 16, 14, 12 and 6 respectively, and that she acquired properties together with the deceased and that she is entitled to be issued with the letter of administration to the exclusion of all Defendants and that there is an underground plan by the Appellants to sell, dispose and share Paul Abuchi Okafor’s properties and money with the intention to disinherit the Respondents of their late husband and father’s possessions and properties.

The Appellants at the trial Court also filed a Statement of Defence and a Notice of Preliminary Objection challenging the competence of the suit and the jurisdiction of the Court to grant the reliefs sought therein.

Proceedings in the suit commenced on the 9th day of April, 2018 wherein the Court granted the 1st– 3rd prayers of the Respondents contained in their motion dated the 14th day of April, 2018 for an interim injunction. On the 19th day of April, 2018, the Respondents’ Counsel applied for the trial Court to make an interim order of inventory of the items of the deceased which application was granted by the Court. On the 3rd day of May, 2018, the Court further gave orders that the Registry shall comply with the order of inventory and also visit the relevant premises to ascertain the conditions in view of the arguments of Counsel to the parties made on the same day.

Dissatisfied with both rulings delivered on the 19th day of April, 2018 and 3rd of May, 2018 respectively, by the learned trial judge, Honourable Justice H. A. L. Balogun, in Suit No: KDH/KAD/334/2018, the Appellants filed a Notice of Appeal dated the 24th day of April, 2018 and the 11th day of May, 2018 to the respective rulings. Consequently, parties to the appeal filed their respective briefs of argument.

The Appellants’ brief of argument was filed on the 20th day of March, 2019 and settled by their Counsel Iroagalachi Anthony Auditz, Esq raising 5 (five) issues for determination of the appeal as follows:
1. Whether the Court was right when on 19th April, 2018, it went ahead to conduct proceedings including making the order for an inventory over the shop belonging to a limited liability company before fixing a date for the preliminary objection and without determining its jurisdiction first. (Distilled from ground one of the Notice of Appeal dated 24th April, 2018)
2. Whether the Court was right when it held that it made the order for inventory of the said shop before determining her jurisdiction because the Appellant Counsel did not object. (Distilled from ground two of the Notice of Appeal dated 24th April, 2018)
3. Whether the Court was right to have adjourned the suit to 03/05/2018, a date shorter than 24/05/2018 and to direct her registry on the said 3/5/2018 to comply with her order for inventory and visit to relevant premises made on 19/4/2018 without first hearing and determining the preliminary objection to her jurisdiction which it had earlier fixed for hearing on 24/5/2018. (Distilled from ground one of the Notice of Appeal dated 11th May, 2018)
4. Whether the Court was right when it ignored the motion for stay of execution pending and made an order re-newing the order for inventory of 3/5/2018. (Distilled from ground two of the Notice of Appeal dated 11th May, 2018)
5. Whether the oral application for inventory of items in the shop made by the Respondent and granted by the Court on 03/05/2018 upon which the order of inventory was made did not contravene Order 15 Rule 1 of the Kaduna State High Court Civil Procedure Rules, 2007 and the Sheriff and Civil Process Law, Laws of Kaduna State, 1991. (Distilled from ground three of the Notice of Appeal dated 11th May, 2018)

On issue one of their Brief of Argument, the Appellants’ Counsel submitted that there was no delay on the part of the Appellants to raise the issue of competence of the 1st – 5th Respondents’ suit at the trial Court’s jurisdiction and thus the Respondents had no choice than to respond to it and the Court, to pronounce on it first before proceeding with the suit. The Appellants’ Counsel also argued that the trial Court having failed to determine its jurisdiction first and immediately it became aware of it, and snobbishly adjourning it to a very long date at its pleasure and without reason was in gross error and thus the proceedings and order made on the 19th day of April, 2018 is void and therefore urged the Court to set them aside.

On issue two, the Appellant’s Counsel argued that once there is a preliminary objection against a Court’s jurisdiction over a suit, it must be determined first as consent and acquiescence of parties cannot substitute jurisdiction as the trial Court implied in its rulings and orders and thus urged the Court to discountenance with the record as same is null and void.

On issue three, the Appellants’ Counsel argued that the attitude of the Court, as well as its proceedings and order of 3rd of May, 2018, which is similar to the first one dated the 19th day of April, 2018, conducted after the Court became aware of the pending preliminary objection to her jurisdiction and had in fact adjourned it to a very far date i.e. the 24th day of May, 2018 in the same sitting, and without determining the said preliminary objection one way or the other, amounts to a nullity and cannot stand in law and thus urged the Court to set it aside.

On issue four, the Appellant’s Counsel argued that the failure of the trial Court to hear the Appellant’s motion for stay of execution dated the 2nd day of May, 2018 before ordering the Registrar of the Court to proceed to the premises of Mark Paul Enterprises Nigeria Limited to execute the order of 19th April, 2018 amounted to a denial of fair hearing to the Appellants and rendered the said order a nullity.

On issue five, the Appellants’ Counsel submitted that oral application is prohibited by the High Court of Kaduna State (Civil Procedure Rules), 2007 by its Order 15 Rule 1 and thus the trial Court was in gross error when on the 19th day of April, 2018 and the 3rd day of May, 2018, it allowed the 1st – 5th Respondents to seek the said oral application which the Court granted, was never brought by motion or summons.

In conclusion, the Appellants’ Counsel urged the Court to allow the appeal, set aside the ruling of the lower Court dismissing the Appellants’ preliminary objection over the jurisdiction of the Court, and to strike out the suit for lack of jurisdiction.

On the other hand, the 1st – 5th Respondents filed a Respondents’ Brief of Argument on the 3rd day of December, 2020 and the said brief which was settled by their counsel Chinyere Josephine Nnaji Esq., raised a preliminary point against the grounds of appeal filed by the Appellants and also formulated a sole issue for determination as follows:
Whether the preservation order of the lower Court made on 19/4/2018 which was consented to by both parties was made without jurisdiction.

In the Respondents’ Brief of Argument, the learned Respondents’ Counsel argued a preliminary point drawing the attention of this Court to the Ground of Appeal filed before this Court by the Appellants and urged the Court to strike out issues 1, 2, 3 and 4 for being a breach of principle of formulation of issues and therefore amount to a proliferation of issues which is not acceptable.

While arguing the lone issue for determination, the learned Respondents’ Counsel submitted that it is obvious from the record before the Court that the interim injunction granted on the 9th day of April, 2018 was before the preliminary objection filed by the Appellants. The Respondents’ Counsel further argued that the order to take inventory of the items was a consequential order and that a consequential order is one which flows directly and naturally from the decision or order of Court made on issues on litigation and inevitable consequence upon it, and that the power to make such orders is inherent and the Court does not hesitate to invoke such powers whenever there is a need to do so in the interest of justice and thus making the principal order effective and effectual or which follow necessarily as being incidental to the principal order in the matter. On this point, counsel cited the case of DR. CHIGBO SAN ELIGWE VS. OKPOKIRI NWANAKA OKPOKIRI & ORS (2015) 2 NWLR (PT. 1443) PAGE 348 AT 372 – 373 PARAS H – C in support.

The Respondents’ Counsel contended that the Appellants neither objected to the ground of the order of inventory of the items nor did they insist on hearing the preliminary objection before the order was made.

RESOLUTION OF THE ISSUES
Having summarized the arguments of the learned counsel to the parties herein, I shall now proceed to determine the issues that have arisen in this appeal and in doing so, I shall adopt the issues for determination raised by the Appellants herein in their Brief of Argument for the determination of this appeal. The issues are again reproduced hereunder as follows:
1. Whether the Court was right when on 19th April, 2018, it went ahead to conduct proceedings including making the order for an inventory over the shop belonging to a limited liability company before fixing a date for the preliminary objection and without determining its jurisdiction first.
2. Whether the Court was right when it held that it made the order for inventory of the said shop before determining her jurisdiction because the Appellant Counsel did not object.
3. Whether the Court was right to have adjourned the suit to 03/05/2018, a date shorter than 24/05/2018 and to direct her registry on the said 3/5/2018 to comply with her order for inventory and visit to relevant premises made on 19/4/2018 without first hearing and determining the Preliminary Objection to her jurisdiction which it had earlier fixed for hearing on 24/5/2018.
4. Whether the Court was right when it ignored the motion for stay of execution pending and made an order re-newing the order for inventory of 3/5/2018.
5. Whether the oral application for inventory of items in the shop made by the Respondent and granted by the Court on 03/05/2018 upon which the order of inventory was made did not contravene Order 15 Rule 1 of the Kaduna State High Court Civil Procedure Rules, 2007 and the Sheriff and Civil Process Law, Laws of Kaduna State, 1991.

Before I proceed with the determination of the issues which I will want to take together, it is important I address the preliminary point raised by the Respondents’ Counsel wherein he argued that the Appellants formulated 5 (five) issues from a mere 3 (three) grounds and that issues one and three were distilled from ground 1, issues 2 and 4 were distilled from issue 2 while issue 5 was distilled from ground 3 and thus amounts to proliferation of issues which is not acceptable as two or more issues cannot be formulated from one ground of appeal.

RESOLUTION OF THE PRELIMINARY POINT
This Court is empowered to look into the contents of the record of appeal and make use of the documents and facts contained therein and draw inferences therefrom. See the cases of TEXACO PANAMA INC VS. SHELL PETROLEUM DEVELOPMENT CO. LTD (2002) 5 NWLR (PT. 759) 209 and CONGRESS FOR PROGRESSIVE CHANGE VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2011) 18 NWLR (PT. 1279) 493 AT 567 D – H. In doing so, it is clear that the Appellants filed two different Notices of Appeal dated the 24th day of April, 2018 and the 11th day of May, 2018 respectively against two rulings of the trial Court made on the 19th day of April, 2018 and 3rd day of May, 2018 respectively. Thus the Appellants clearly distilled issue one and two from grounds one and two of the Notice of Appeal dated the 24th day of April, 2018 while issues three, four and five were distilled from grounds 1, 2 and 3 of the Notice of Appeal dated the 11th day of May, 2018. Therefore, there was no proliferation of issues as argued by the Respondents, and I so hold. The argument on the preliminary point has no merit and it is accordingly dismissed.

RESOLUTION OF THE MAIN APPEAL
I will now consider the issues for determination raised by the Appellants herein, which I have adopted and will now proceed to determine.

ISSUES ONE AND TWO
Looking at the record of appeal, it is clear that on the 9th day of April, 2018, the Respondents’ Counsel moved the Respondents’ motion ex-parte for an interim injunction and the prayers therein was granted by the Court pending the hearing of the motion on notice and then adjourned to the 19th day of April, 2018 for the hearing of the Motion on Notice. As at this time, the Appellants has not filed their Notice of Preliminary Objection which was filed on the 17th day of April, 2018.

On the 19th day of April, 2018, the following occurred as contained in page 162 of the Record of Appeal thus:
“Plaintiff present in Court
C. J. NNAJI ESQ. for the Plaintiff
U. N. KUSO ESQ. with Abdulrahman Elkurso Esq. For the 1st to 9th Defendants.
NNAJI ESQ. The order served on the defendants was not obeyed. I apply that the Court make an interim order of inventory of the items of the deceased.
KUSO ESQ. Actually, the 1st Plaintiff has been separated from the deceased and she has not been in the house since 2011. The Defendants are just selling items in the shop. I have no objection to an inventory being taken as long as the items for sale in the shops can be sold.
COURT: In the circumstance, I order that the inventory of the assets of the deceased within the jurisdiction of this Court shall be taken by the Registry in the presence of parties and or their counsel.
Items that are in the shops for sale can be sold but the records and accounts must be carefully kept.”

The above proceeding in my opinion clearly shows that the Respondents were making a report to the Court that its orders for interim injunction was not obeyed by the Appellants and sought for the Court’s intervention. The Appellants’ Counsel did not deny the allegation but agreed to the intervention sought for by the Respondents and asked the Court to allow the items for sale in the shops to be sold. That notwithstanding, I will agree with the argument of the Respondents’ Counsel that the order of intervention made by the Court was a consequential order because it is consequent upon the order for interim injunction made by the Court on the 9th day of April, 2018.

A consequential order is not one merely incidental to a decision but one necessarily flowing directly and naturally from, and inevitably consequent upon it. See the case of AKINBOBOLA VS. PLISSON FISKO (1991) 1 NWLR (PT. 167) 270 AT 288. Thus, a consequential order gives meaning and effect to a judgment without granting a fresh relief. It must be a product or by-product of the main suit and the evidence.

Hence, the law gives the Court the inherent power to grant consequential orders in deserving cases. See the cases of EAGLE SUPER PACK (NIG) LAD VS. ACB PLC (SUPRA), AKEEM VS. UNIVERSITY OF IBADAN (2003) 10 NWLR (PT. 829) 584, REGD. TRUSTEES, APOSTOLIC CHURCH VS. OLOWOLENI (1990) 6 NWLR (PT. 158) 514, AMAECHI VS. INEC (2008) 5 NWLR (PT. 1080) 227, UNITY BANK PLC VS. DENCLAG LTD (2012) 18 NWLR (PT. 1332) 293, EZE VS. GOV. ABIA STATE (SUPRA); OSUJI VS. EKEOCHA (SUPRA) (2009) 7 SCNJ 248, ISHOLA VS. FOLORUNSO (2010) 13 NWLR (PT. 1210) 169, OSIEC VS. AC (2010) 19 NWLR (PT. 1226), TINDAFAI VS. JARA (2016) 8 NWLR (PT. 1513) 19 and MAMMAN VS. HAJO (2016) 8 NWLR (PT. 1515) 411 respectively.

The order the Court made on the 19th day of April, 2018 was obviously intended to give effect to the meaning and/or intention of the Court by the appropriate consequential order. On the other hand, the Appellants’ Counsel’s argument on issue two is totally misconceived as the parties were only afforded fair hearing according to the tenets of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 and not solely as a result of the objection made by the Appellants’ Counsel, and as I have already said, the consequential order made by the trial Court was made consequent upon an order already given on the 9th day of April, 2018 before the filing of the Notice of Preliminary Objection by the Appellants on the 17th day of April, 2018. It is thus my opinion on both issues one and two that the Court was right when on the 19th day of April, 2018, it went ahead to conduct proceedings including making the order for an inventory before fixing a date for the preliminary objection, and that the Court never made the order for inventory because the Appellants’ Counsel did not object, and I so hold.

Issues one and two are thus resolved against the Appellants in favour of the Respondents, and I so hold.

ISSUES THREE AND FOUR
I will also go ahead to consider issues three and four together. Again, from the Record of Appeal, it is clear that the trial Court as at the 19th day of April, 2018 became aware of the Notice of Preliminary Objection filed by the Appellants on the 17th day of April, 2018 and adjourned same to the 24th day of May, 2018 for hearing. It is also clear from the record of appeal that the Court again sat on the 3rd day of May, 2018 even though there was nothing on record to explain why so and the Court again adjourned to the 24th day of May, 2018 which was the initial date on record for hearing of the Notice of Preliminary Objection. On this date i.e. the 3rd day of May, 2018, the Appellants’ Counsel brought to the notice of the Court that they have an application dated the 24th day of April, 2018 and the 2nd day of May, 2018 and sought to withdraw the one dated the 24th day of April, 2018 and move the one dated the 2nd day of May, 2018.

The Respondents’ Counsel stated as contained in page 163 of the Record of Appeal thus:
“… we object as we are ready for the motion of 24/4 since they are not ready for that motion I urge the Court to hold that the Court’s order be obeyed.”

From the above, this Court can safely presume that the matter was so slated for the Appellants’ motion but seeing that the Appellants had withdrawn the application and sought to rely on the newly filed motion, the Respondents then utilized the opportunity to remind the Court to ensure that its order is obeyed as the Respondents’ Counsel stated that the Appellants are packing things out of the shop to the 5th Defendant’s shop. This is clearly a reminder for the Court to ensure that the order it made on the 9th day of April, 2018 which the Court re-hatched on the 19th day of April, 2018 is adhered to as the Respondents still claimed that the orders are still been flouted, thus, the Court re-stating its order again on the 3rd day of May, 2018. In my own opinion, the status quo of the Court was been maintained and the Court did not as against the argument of the Appellant, make any other order while the Notice of Preliminary Objection was still pending, and I so hold. On this note, I hold that the trial Court was not wrong to have adjourned the suit to 3rd day of May, 2018, and to direct its Registry on the said 3rd of May, 2018 to comply with its order for inventory and visit to relevant premises made on the 19th day of April, 2018 without first hearing and determining the preliminary objection to its jurisdiction which it had earlier fixed for hearing on 24th of May, 2018.

On the other hand, it is again clear from the record of appeal that on the 3rd day of May, 2018, the Appellant informed the Court of their applications dated the 24th day of April, 2018 and the 2nd day of May, 2018 respectively, and sought to withdraw the one dated the 24th day of April, 2018 – an application which the trial Court granted. The Respondents’ Counsel informed the Court that the subsisting motion dated the 2nd day of May, 2018 was served on the 3rd day of May, 2018 which is a date after it was filed and the motion not being ripe for hearing, the Appellants’ Counsel sought for another date within which the Court will hear the application. Flowing therefrom, the Appellants’ Counsel cannot be arguing as he has done under issue four of the Appellants’ Brief of Argument that by bringing its application filed on the 2nd day of May, 2018 before the Court, it was wrong for the Court to neglect to hear the application pending in its file before ordering the Registrar of the Court to proceed to execute the order of 19th April, 2018 and thus amounted to a denial of fair hearing and rendered the said order a nullity. It is thus the decision of this Court on this issue, that the trial Court was right when it ignored the motion for stay of execution pending and made an order for inventory of the 3rd day of May, 2018.

Issues three and four are therefore resolved against the Appellants in favour of the Respondents.

ISSUE FIVE
As I had earlier stated in my findings on issue one, I will state again that the orders made by the trial Court both on the 19th day of April, 2018 and the 3rd day of May, 2018 were one made as a consequential order to the interim order made by the Court on the 9th day of April, 2018 and thus the oral application of the Respondents’ Counsel to give effect to its order was not out of place. Even Order 15 Rule 1 of the High Court of Kaduna State (Civil Procedure Rules), 2007 which provides as follows: “…Where by these Rules any application is authorized to be made to a judge, such application may be made by motion or summons which shall be supported by affidavit and shall state under what rule of Court or law, the application is brought…” is indicative of the fact that the Court has the discretion to entertain any oral application made to it as it deems fit and to my mind, the proceedings leading to the respective orders being made by the Court below was consequent upon the report made by the Respondents on the status of compliance to the order of the Court made on the 9th day of April, 2018 by the Appellants. It is therefore my firm view that the oral application for inventory of items in the shop made by the Respondents and granted by the Court on the 3rd day of May, 2018 upon which the order of inventory was made did not contravene Order 15 Rule 1 of the Kaduna State High Court Civil Procedure Rules, 2007 and the Sheriff and Civil Process Law, Laws of Kaduna State, 1991.

In the circumstances, this appeal has no merit and it is therefore hereby dismissed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother, Mohammed Baba Idris, JCA. I agree with the reasoning and conclusion reached in the lead judgment. I also agree that the appeal lacks merit and deserves to be dismissed.

BITRUS GYARAZAMA SANGA, J.C.A.: I have read in draft, the judgment just delivered by my learned brother Idris, JCA. I agree with and adopt as mine the finding and conclusion reached by my learned brother in the lead judgment that this interlocutory appeal lacks merit. I also dismiss same.

Appearances:

A. A. Iroagalachi, Esq. For Appellant(s)

C. J. Nwaji, Esq. For Respondent(s)