ASHAMA & ANOR v. AFUWAGBOYE & ANOR (2020)

ASHAMA & ANOR v. AFUWAGBOYE & ANOR

(2020)LCN/14691(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Monday, October 05, 2020

CA/AK/28/2017

RATIO

SIGNATURE: WHETHER A COURT IS PERMITTED TO GO ON DISCOVERY TO DETERMINE THE OWNER OF A SIGNATURE

The law is trite that a Court is not permitted to go on a voyage of discovery to determine the owner of a signature on a process before it, as was held in the case of: Tanimu v. Rabiu (2017) All FWLR (Pt. 900) p. 391 at p. 410, paras. G-H. PER OMOLEYE, J.C.A.

COURT PROCESS: EFFECT OF FAILURE OF LITIGANTS OR COUNSEL TO SIGN A COURT PROCESS

The law is established that failure of litigants or their Counsel to sign a Court process is not a mere irregularity that can be overlooked, rather it is a fundamental error. PER OMOLEYE, J.C.A.

COURT PROCESS: EFFECT OF A COURT PROCESS NOT SIGNED BY A LEGAL PRACTITIONER WHERE IT IS REQUIRED

It is now a well settled principle of law that where a Court process is required to be signed by a Legal Practitioner, such process should be signed by such Legal Practitioner. Failure to so do is a fundamental vice. See the case of: WEEKLY INSIGHT & COMMUNICATION NETWORK LTD. V. PETER (2019) LPELR- 46847 (CA), where this Court while reiterating the position of the Supreme Court in the case of: SLB CONSORTIUM LTD. V NNPC (2011) ALL FWLR (Pt. 583) p. 1902 at p. 1904 was emphatic that once it cannot be said who signed a process, the process is substantially incurably bad in law, so much so that any rule of Court that may be designed to provide a remedy will be of no moment, as a procedural rule of Court cannot override the provision of a substantive law.
Furthermore, Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners Act, Cap. 20, Laws of the Federation, 1990, provides that, a lawyer acting in his capacity as a Legal Practitioner shall not sign or file a legal document unless there is affixed on such a document or legal document, a seal and stamp approved by the Nigerian Bar Association. What this means is that, albeit the affixing of the seal satisfies the requirement of the provisions of the said Rule 10(1) (Supra), it does not remove the requirement as to the need to append the signature of either the litigant or his counsel in order to make the legal document valid. What is more, by the clear wordings of Rule 10(1) (Supra), for a legal document to be valid, it must not only be stamped or sealed, it must equally be signed by a Litigant or his Legal Practitioner. PER OMOLEYE, J.C.A.
APPEAL: IMPLICATION OF AN APPEAL WHERE A RESPONDENT DID NOT FILE A BRIEF OF ARGUMENT

Although, generally in an appeal where a respondent did not file a brief of argument, such a respondent would be deemed to have conceded to the issues raised and submissions contained in an appellant’s brief of argument, this is immaterial and of no moment, for failure to file the respondent’s brief in no way puts the appellant at an advantage, since the judgment of the Court below is in favour of the respondent. An appellant therefore still has to show that the judgment of the Court below was wrong. That is, an appellant has to succeed on the merit of the issues argued in his brief of argument. Hence, this Court still owes a duty to consider and determine whether or not the relevant appeal is sustainable – See the cases of: (1) Akinbami v. Alategbe (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) p. 125; (2) Fatokun v. Somade (2002) 1 NWLR (Pt. 802) p. 431; (3) John Holt Ltd. v. Oputa (1996) 9 NWLR (Pt. 470) p. 101; (4) Sofolahan v. Folakan (1999) 10 NWLR (Pt. 621) p. 86; (5) Okelola v. Adeleke (2004) LPELR-2438 (SC); (6) Echere & Ors. v. Ezirike & Ors. (2006) LPELR-1000 (SC) and (7) Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) p. 512. PER OMOLEYE, J.C.A.

ORDER: PRINCIPLES GUIDING THE STRIKING OUT ORDER ON CASES

It is a general principle of law that a case which has been withdrawn and subsequently struck out or dismissed when the point of “litis contestatio” has been reached cannot be relisted for another bite at the apple – See the cases of: (1) Eronini v. Iheuko (1989) 20 NSCC (Pt.1) p. 503; (2) The Young Shall Grow Motors Ltd. V. Okonkwo (2010) 3 SCNJ p. 396 and (3) Alhaji Isiyaku Yakubu Ent. Ltd. V. Tarfa & Anor. (2014) LPELR-24223 (CA). However, a decision striking out a plaintiff’s action not heard on its merits certainly does not finally determine the respective rights of the parties in the action, nor does it adjudicate the ultimate rights of the parties in the disputations submitted to the trial Court for determination. Where therefore the rights of the parties have not been examined by the trial Court and appropriate findings made thereon, the claims effectively remain pending and can indeed be revived by any of the parties in any other Court of concurrent jurisdiction or even in the same Court that handed down the striking out order, for relisting. Most rules of trial Courts make provisions for the relisting of such matters on such terms as may be granted on the application of any of the parties. Although an order striking out an action may have much the same effect as an order dismissing it, where a matter is simply struck out for reasons like non-compliance with a provision of law, rule or practice or where a point of objection is raised, which point can be complied with thereafter or where a process is technically bad for a reason which can be rectified later, the initiator of the matter is at liberty to re-file that process after same has been brought in compliance with the correct position of the facts, law, rule or practice as may be required. To put it in other words, a striking out order of an action not being a decision on the merits in some situations does not preclude a subsequent decision on the merits, if the action can be reopened by an appropriate procedure. The Apex Court per Wali JSC (of blessed memory) in the case of: Nigeria Airways Ltd. V. Lapite (1990) LPELR-1998 pointedly held that:
“Where the pleading by the plaintiff is struck out, and if the justice of the case demands, the Court may order a mere striking out of the case in order to afford the plaintiff an opportunity of filing a fresh action on the same facts, if he so desires. See Shell B-P. Petroleum Development Co. of Nig. Ltd. v. M. S. Onasanya (1976) 6 SC 89. In Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) 257 (1988) 1 NSCC 1184, Karibi Whyte, J.S.C., in his dictum at p. 1197 opined thus – The Court in exercise of its powers may on the application of either of the parties before it, strike out the statement of claim or defence, either as a whole, or part of it.”
Also in the case of: Nigeria National Supply Co. Ltd. V. Establishment Sima of Vaduz (1990) LPELR – 2004 (SC), the Supreme Court per Belgore, J.S.C. (as he then was, now CJN Rtd.) on the consideration for relisting a matter that has been struck out, had the following to say:
“Thus in deciding whether to relist a matter struck out, the Court looks at the affidavit to see if there was justified delay, whether it is in the interest of justice to hear the substantive case and do justice by hearing both sides. In short, where a Court is called upon by a party to the proceedings to exercise its discretion, it looks at the matter through its own peculiar circumstances by what are the facts disclosed in the affidavit to arrive at its discretion. This is essentially a matter of facts. It is therefore inappropriate to address such matter of discretion as a matter of law; the facts leading to the consideration of the discretion are mere facts, even though law will be applied to those facts.”
See also the cases of: (1) Alor & Anor. V. Ngene & Ors. (2007) 17 NWLR (Pt. 1062) p. 163; (2) Owoh & Ors. V. Asuk & Anor. (2008) 16 NWLR (Pt. 1112) p. 113; (3) Panalpina World Transport (Nig.) Ltd. V. J. B. Olandeen International & Ors. (2010) 19 NWLR (Pt. 1226) p. 1; (4) Lafferi (Nig.) Ltd. & Anor. V. Nal Merchant Bank Plc & Anor. (2015) LPELR- 24726 (SC) and (5) In re: Apeh & Ors. (2017) LPELR- 42035 (SC). PER OMOLEYE, J.C.A.

JUDICIAL DISCRETION: HOW SHOULD THE COURT EXERCISE JUDICIAL DISCRETIONS

As rightly canvassed by the Appellants’ counsel, the law is settled generally that, in any suit, the costs of every proceeding is at the discretion of the Court which hosted the proceeding. It is also an established principle of law that all judicial discretions vested in a Court of law is required to be exercised judicially and judiciously. The terms “judicially” and “judiciously” were defined by the Apex Court in the case of:Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) p.46 at pgs. 60 – 61 as follows:
“Acting judicially imports the consideration of the interest of both sides weighing them in order to arrive at a just or fair decision. Judicious means: (a) proceeding from or showing sound judgment; (b) having or exercising sound judgment; (c) marked by discretion, wisdom and good sense.”
Once therefore a trial Court in the assessment and award of costs took into account the interest of both sides and exercised sound, discrete and wise judgment thereon, the exercise of discretion would be both judicial and judicious and thus sustainable in law. PER OMOLEYE, J.C.A.

COST: PRINCIPLES GUIDING THE AWARD OF COSTS

Generally, costs follow events and a successful party is entitled to costs unless there is a special reason for depriving him of the entitlement. However, costs are not awarded capriciously or as punitive means and are not designed to be a bonus to the other party. Costs are awarded to indemnify the other party for good reasons. In the case of: Olusanya v. Osinleye (2013) 12 NWLR (Pt. 1367) p. 148, Alagoa, J.S.C. [as he then was, now J.S.C.(Rtd.)] had the following to say:
“Costs awarded are supposed to be compensatory to a successful party without being punitive to an unsuccessful party and costs that are awarded to serve as a deterrent to an unsuccessful party to prevent him from filing future claims of a particular kind are punitive and a Court that awards such costs cannot be said to be exercising its discretion judiciously and judicially. The power to vary such an order on costs wrongly exercised by the High Court is vested in the Court of Appeal by Section 16 of the Court of Appeal Act and the Court of Appeal Rules. See Emavworhe Etajata & Ors. V. Peter Ologbo & Anor. (2007) 16 NWLR (Pt. 1061) 554.”

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

BABATUNDE SAMSON ASHAMA 2. MRS IGE SAMUEL (NEE ASHAMA) (For Themselves And On Behalf Of All The Surviving Children Of Late Samson Daradoye Olotu Ashama And The Surviving Children Of His Late Younger Brother, Godwin Ashama) APPELANT(S)

And

1. CHIEF ADEYAJU AYO ALAGO AFUWAGBOYE 2. MR. OLOGUN MATTHEW RESPONDENT(S)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Ondo State sitting in Owo per N. S. Adeyanju, J. (hereinafter referred to as “the trial Court”) in Suit No. HOW/7/2016, delivered on the 22nd day of November, 2016.

The brief background facts of this matter from the Appellants’ perspective are that, the Appellants as claimants at the trial Court instituted an action against the Respondents as defendants vide their Writ of Summons and Statement of Claim dated and filed on the 15th day of February, 2016 and sought a host of declaratory reliefs, perpetual injunction, special and general damages against the Respondents. The Appellants specifically sought an order that the 1st Appellant, rather than the 1st Respondent, is the rightful person to assume the position of “Alahere” (Camp Owner) of the Ugbojoko Oloturogo Farmland Camp. Upon service of the Writ of Summons and Statement of Claim on the Respondents, the Respondents filed their Statement of Defence and Counter-Claim on the 5th day of April, 2016. Subsequently, the Appellants were desirous of making

very extensive and far-reaching amendments to their pleadings, the learned trial Judge then advised the Appellants to withdraw the action to make way for them to file a fresh action to accommodate the intended amendments. The Respondents were not opposed to the idea and indeed agreed to equally withdraw their Counter-Claim accordingly. The Appellants therefore on 1st of August, 2016 filed an application to withdraw their said action and the action was consequently struck out. The Respondents however rather than withdraw their Counter-Claim, manifested an intention to proceed with prosecution of same and the trial Court gave them the green light, hence the Counter-Claim went into a full-blown trial and remains part-heard pending the determination of this appeal. The Appellants had no choice but to file their defence to the Counter-Claim. Meanwhile, on the 3rd of August, 2016, the 1st Appellant in conjugation with three fresh persons as plaintiffs filed another action, Suit No. HOW/24/16, against the present Respondents along with two additional persons as defendants, in place of the action earlier on struck out. The Appellants thereafter filed an application

for the consolidation of their new action, Suit No. HOW/24/2016 with the Counter-Claim of the Respondents, but the trial Court dismissed the application. Frustrated, the Appellants then filed an application to relist the original Suit No. HOW/7/2016 that was struck out on the 1st of August, 2016. That application was again dismissed. Dissatisfied with the decision of the trial Court dismissing the application for relisting, the Appellants filed this appeal against it to this Court.

The Appellants’ Notice of Appeal of five grounds of appeal is dated 23rd of December, 2016 and was filed on the same date. For clarity and ease of reference, the five grounds of appeal with their particulars are hereunder reproduced as follows:
“GROUND ONE
The learned trial Judge erred in law when he dismissed the application of the Appellants for the re-listing of their substantive claims in Suit No. HOW/7/16.
Particulars of Error
(a) It is the constitutional right of the Appellants to approach the Court of law unfettered and proceed against person or persons who may have infringed on their legal rights.
(b) Their present legal status-

Defendants to the counter claim of the Respondent – makes it legally impossible for them to have the forum to make the Respondents legally accountable for the obvious legal misdeeds against them (the Appellants).
(c) The Appellants’ substantive claims were initially withdrawn for good reasons, especially because of the oral undertaking in the open Court by counsel to the Respondents to withdraw their counter claims, if the Appellants withdraw their substantive suit preparatory to the filing of a new and fresh suit and the suit was only struck out thereafter and not dismissed.
(d) Counter claims, by its legal nature, is a distinct suit from the main claim of an action and their being heard together is only for convenience.
(e) Courts of law exist to balance the cause of justice between or among parties before them and none of such parties should be placed on an undue advantage over the other.
GROUND TWO
The learned trial Judge misdirected himself in law and in facts when he held that the Appellants cannot “approbate and reprobate” at the same time.
Particulars of Misdirection
(a) In appropriate cases,

such as the Appellants’ instant case, Court processes withdrawn and consequently struck out can be brought to life by the leave of Court.
(b) Circumstances that gave rise to the withdrawn substantive claims of the Appellants were no longer in existence when they sought to resuscitate them by the leave of the Court.
GROUND THREE
The learned trial Judge erred in law and in facts when he failed or neglected to call for oral evidence to settle the material and apparent contradictions between paragraphs 6, 7 and 8 of the Supporting Affidavit of the Appellants’ Motion on Notice filed and argued before the lower Court on 15/11/16 and 22/11/16 respectively and Paragraph 4(d) of the Respondents’ Counter Affidavit to same.
Particulars of Error
(a) The Appellants, in the affidavit in support of their Motion on Notice filed and argued before the lower Court on 15/11/16 and 22/11/16 respectively, deposed as follows:
“6. That I also know additionally and as a fact that the Counter Claimants herein did promise to withdraw their Counter Claims upon the withdrawal of the substantive suit by the Claimants, so as to pave way

for the new suit.”
“7. That our Solicitor, J. O. Adewumi, Esq., told me in the premises of this Hon. Court after the Court’s sitting on 1/8/16 (and I verily believed him that he subsequently withdrew both our substantive claims against the Counter Claimants herein in suit No. HOW/7/16 and the said application to amend it based on the Court’s hint and especially the Counter Claimants’ Solicitor’s promise to withdraw their Counter Claims; and both processes were consequently struck out by this Hon. Court on the same day of 1/8/16.”
“8. That I know as a fact that shortly after our said Solicitor formerly withdrew the said processes on the said day and costs awarded against us, the Counter Claimants’ Solicitor reneged on his earlier promise and insisted on pursuing the Counter Claims.”
(b) The Respondents, in Paragraph 4(d) of their Counter affidavit state as follows:
“That after the withdrawal of their substantive suit, they filed defence to the withdrawal of their substantive suit, they filed defence to the counter-claims and there was no time either the Respondents or their

Counsel agreed with the Applicants’ counsel that if the applicants withdraw their substantive suit that the Counter claims would be withdrawn.”
(c) The conflict between (a) and (b) above is that whilst the Appellants’ are saying that the Respondents or their Counsel, gave a promise to withdraw their counter claims after the Appellants must have withdrawn their substantive suit, the Respondents are saying that they did not give such a promise.
(d) Where and when there is material contradiction in Affidavit Evidence, a trial Court is obliged to call for oral evidence to resolve the conflict.
GROUND FOUR
The learned trial Judge erred in law in awarding various punitive costs against the Appellants over their interlocutory applications and/or over their genuine request for adjournment.
Particulars of Error
(a) Everyone of the various awarded costs was/is outrageous and punitive.
(b) No admissible evidence was adduced nor reason supplied to justify the outrageous various sums awarded as costs against the Appellants at different times.
(c) The awarded costs were arbitrary and capriciously done to drive fears

into the Appellants and thus dissuade them from diligent prosecution of their case.
(d) The various awarded costs did/do not manifest a judicial and judicious exercise of the discretion available to the learned trial Judge in awarding the costs.
(e) Costs are not meant to be punitive.
GROUND FIVE
The ruling of the learned trial Judge is completely against the weight of evidence and perverse.”

In obedience to the rules of practice in this Court, the learned counsel for the parties filed and exchanged briefs of argument. The Appellants’ counsel, Mr. J. O. Adewunmi of the law firm of Messrs Omodele Adewunmi & Co., settled the briefs of the Appellants. In the Appellants’ Brief of Argument dated the 26th day of March, 2017, filed on the 27th day of March, 2017, the three issues distilled from the grounds of appeal and donated for determination state as follows:
“ISSUE ONE:
Whether, by the peculiar circumstances of the Appellants’ case, the Hon. Trial Judge was not wrong to have dismissed the application to relist their substantive Suit No. HOW/07/16 between Babatunde Samson Ashama & Anor. Vs.

Chief Adeyanju, Ayo Alago Afuwagboye & Anor. (Grounds One, Two and Five).
ISSUES TWO:
Whether the failure or neglect of the Hon. Trial Judge to call for oral evidence to resolve the material and apparent contradiction between the contents of the Appellants’ Supporting and the Respondents’ Counter Affidavits dated and filed on 15/11/16 and 21/11/16 respectively did not occasion miscarriage of justice to the Appellants. (Ground Three).
ISSUES THREE:
Whether the Hon. Trial Judge exercised his discretion judicially and judiciously, in the context of this case, when he awarded against the Appellants the costs of N25,000.00 each on 26/10/16 and 22/11/16 and N20,000.00 on 13/02/17 respectively. (Ground Four)”

The Respondents’ counsel, Mr. Wumi Fabuluje of the law firm of Fabuluje & Fabuluje settled the Respondents’ Brief of Argument dated the 6th day of June, 2017 filed on the 7th day of June, 2017. In it, the three issues donated for determination in the Appellants’ brief were adopted by the Respondents’ counsel. The three issues have been set out in the preceding paragraph.

In response to the Respondents’ brief of argument, the Appellants’ counsel also filed the Appellants’ Reply Brief dated and filed on the 30th day of June, 2020. The Appellants’ counsel equally filed an Appellants’ List of Cited Authorities dated and filed on the 30th day of June, 2020.

At the hearing of the appeal by this Court on the 8th day of July, 2020, Mr. O. S. Adedeko, learned counsel for the Appellants identified, adopted and relied on both the Appellants’ Brief of Argument, Appellants’ Reply Brief and List of Authorities in urging upon this Court to allow the appeal, set aside the decision of the trial Court, grant the Appellants’ application to relist Suit No. HOW/7/2016 and restore their claims against the Respondents.

On the other part, Mr. Wumi Fabuluje, learned counsel for the Respondents adopted and relied on the Respondents’ Brief of Argument, urged this Court to dismiss the appeal, affirm the decision of the trial Court and remit the case to the trial Court for the completion of the Respondents’ Counter-Claim.

I will pause here before proceeding farther in the resolution of the

appeal, as it is apposite to consider the competence of the Respondents’ Brief of Argument as challenged in the first segment of the Appellants’ Reply Brief. The Appellants’ counsel submitted that by the combined effect of Sections 2(1) and 24 of the Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 2004, only persons who have been called to the Nigerian Bar and whose names are on the Roll of Legal Practitioners in Nigeria can validly sign Court processes, including the Respondents’ Brief in the instant case. He referred to the cases of: (1) Oyama v. Agibe (2016) All FWLR (Pt. 840) p. 1274 at p. 1284, paras. B-C and (2) Ewukoya v. Buari (2017) All FWLR (Pt. 881) p. 1099 at p. 1115, paras. D-G. The principle includes where a Court process is purportedly signed and the Court can not decipher the Legal Practitioner who purportedly signed the process, as in the instant case. Thus, in the situation, such Court process is classified as not having been signed by a qualified Legal Practitioner. In the instant case, the names of four purported Legal Practitioners were listed beneath a signature, but there is no indication

as to which of them owns the signature. That is, there is no ticking or marking beside any of the purported four Legal Practitioners whose names are listed beneath the signature, so as to allow this Court determine the exact owner of the signature. The law is trite that a Court is not permitted to go on a voyage of discovery to determine the owner of a signature on a process before it, as was held in the case of: Tanimu v. Rabiu (2017) All FWLR (Pt. 900) p. 391 at p. 410, paras. G-H. In the situation, the process will be taken to have been signed by an unknown person and thus rendered incompetent. Furthermore, although in line with the requirement under the provisions of Section 10(1), (2) and (3) of the Rules of Professional Conduct for Legal Practitioners in Nigeria, 2007, the seal of Adewumi W. Fabuluje is affixed to the instant Respondents’ brief, the mere presence of the seal on the brief is not enough, as the signature on it cannot be ascribed to the owner of the seal or indeed any of the other three names listed beneath the signature. The Respondents herein or their Counsel are deemed to have failed to sign the brief of argument. The law is

established that failure of litigants or their Counsel to sign a Court process is not a mere irregularity that can be overlooked, rather it is a fundamental error. The Respondents herein can not also benefit from the legal principle that a Court should not visit the sin of a Counsel on a litigant that employed him because the legal principle is not applicable where a Counsel fails to sign Court processes. He relied on the case of: Okpe v. Fan Milk Plc. (2017) All FWLR (Pt. 887) p. 157 at pgs. 196 – 197, paras. G-A. In sum, since in the instant case, the Respondents’ Brief of Argument is unsigned either by the Respondents or their counsel as required by law, the said Respondents’ Brief of Argument is incurably incompetent. The resultant effect is that, the Respondents have not filed any valid brief to controvert any of the issues formulated and argued in the Appellants’ brief of argument.
It is now a well settled principle of law that where a Court process is required to be signed by a Legal Practitioner, such process should be signed by such Legal Practitioner. Failure to so do is a fundamental vice. See the case of:

WEEKLY INSIGHT & COMMUNICATION NETWORK LTD. V. PETER (2019) LPELR- 46847 (CA), where this Court while reiterating the position of the Supreme Court in the case of: SLB CONSORTIUM LTD. V NNPC (2011) ALL FWLR (Pt. 583) p. 1902 at p. 1904 was emphatic that once it cannot be said who signed a process, the process is substantially incurably bad in law, so much so that any rule of Court that may be designed to provide a remedy will be of no moment, as a procedural rule of Court cannot override the provision of a substantive law.
Furthermore, Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners Act, Cap. 20, Laws of the Federation, 1990, provides that, a lawyer acting in his capacity as a Legal Practitioner shall not sign or file a legal document unless there is affixed on such a document or legal document, a seal and stamp approved by the Nigerian Bar Association. What this means is that, albeit the affixing of the seal satisfies the requirement of the provisions of the said Rule 10(1) (Supra), it does not remove the requirement as to the need to append the signature of either the litigant or his counsel in order to make the legal document valid. What is

more, by the clear wordings of Rule 10(1) (Supra), for a legal document to be valid, it must not only be stamped or sealed, it must equally be signed by a Litigant or his Legal Practitioner.
In sum, I therefore agree with the Appellants’ counsel and hold that the Respondents’ Brief of Argument dated the 6th day of June, 2017 purportedly filed on the 19th day of June, 2017, having been signed by an unknown person, is incompetent and accordingly struck out by me. This means that the instant appeal is undefended.

owes a duty to consider and determine whether or not the relevant appeal is sustainable – See the cases of: (1) Akinbami v. Alategbe (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) p. 125; (2) Fatokun v. Somade (2002) 1 NWLR (Pt. 802) p. 431; (3) John Holt Ltd. v. Oputa (1996) 9 NWLR (Pt. 470) p. 101; (4) Sofolahan v. Folakan (1999) 10 NWLR (Pt. 621) p. 86; (5) Okelola v. Adeleke (2004) LPELR-2438 (SC); (6) Echere & Ors. v. Ezirike & Ors. (2006) LPELR-1000 (SC) and (7) Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) p. 512. It is thus legally incumbent on this Court to still proceed to the determination of the instant appeal on the merit based on the processes filed by the Appellants herein.

I have perused the three issues crafted for determination in the Appellants’ brief and found that, issues one and two are collapsible. Indeed, I believe that the purport of the posers under both is really: whether the Appellants are precluded from litigating their grievances against the Respondents having regard to the withdrawal of the Appellants’ action in Suit No. HOW/7/2016 and the order of the trial Court striking out the suit on the 1st day of

August, 2016? In resolving this appeal therefore, I will be adopting the identified poser as issue one and thereafter consider issue three in the Appellants’ brief re-numbering same as issue two.

ISSUE ONE
“Whether the Appellants are precluded from litigating their grievances against the Respondents having regard to the withdrawal of Suit No. HOW/7/2016 and the order of the trial Court striking out the suit on the 1st day of August, 2016?”

I have read very carefully the submissions of the Appellants’ counsel on their grouse about the decision of the trial Court dismissing the application to relist Suit No. HOW/7/2016 earlier on struck out by that Court. The germane circumstances leading to the withdrawal of the said suit have equally been reiterated by me under the summary of the facts of the matter at the debut of this judgment. There is no question in my mind as canvassed by the Appellants’ counsel that the said suit was withdrawn by him because of the patent deficiencies thereon, in order to pave way for him to rectify those deficiencies and file a fresh suit. Although this fact might not have been reflected in

the proceedings of the trial Court, this is rather curious, the conclusion can readily be deciphered from the ruling of the trial Court, the subject of this appeal. The trial Court “inter alia” found as follows:
“The substantive suit in this case was struck out on the application of the Claimants’ counsel when he found same as not capable of amendment.” (See lines 4 to 6 at page 1031 of the Record of Appeal).

What is more, patently displayed on the printed record of appeal is the application of the Appellants for the withdrawal of the said Suit No. HOW/7/2016. The application was predicated on the following grounds:
(1) New facts have emerged, which show that all necessary parties are not yet before this Hon. Court and there is the need to bring them before the Court.
(2) The need to bring, consequentially, the contents of the Claimants’/Applicants’ processes in line with the facts of the case.
(3) Some material clerical or human errors or mistakes have been discovered in the Claimants’/Applicants’ processes already filed in this Court and there is the need to straighten them so that

this Hon. Court can be seized with the true facts of the suit.
(4) All the foregoing cannot be effected through amendment to the Claimant’s case, as the issues would be muddled up.”

The relevant paragraphs of the affidavit in support of the application are paragraphs 4 and 5, same are hereunder reproduced for good understanding thus:
“4. That my Boss J. O. Adewumi, Esq., informed me at our Chambers at Ado Ekiti on Saturday 25/07/16 at about 12:30p.m. and during the review of this case and I verily believe him, as follows:
(A) That in the course of reviewing the case of the Claimants, he discovered that:
(a) Whilst the 1st Defendant said that he was only allegedly appointed as a Deputy Alahere (he supplied the name of the purported Alahere as one Chief Olatunde Olanipekun) and not the ‘Alahere’ of the Oloturogo Ugbojoko Farmland Camp, the 2nd Defendant allegedly denied being the owner (he also supplied the names of the alleged seller and buyer as Chief Aladeyo and Mr. Jalesanmi Ologun respectively) of the portion of the 1st Claimant’s/Applicant’s land he is trespassing on.
(b) Some human

typographical errors or mistakes, omissions and lumping up of issues were made by the Computer Operator/Secretary in the Chambers in the course of typing the processes and also myself in the course of putting together the case of the Claimants’/Applicants’ as they narrated them to me when I took down their briefs.
(c) Such human errors observed, include, but not limited to, the following ones such as: “Grandfather” instead of ‘Great Grandfather’, “Father” instead of ‘Grandfather’; implying that “Late Pa Samson Daradoye Olotu Oloturogo Ashama” was the same person instead of two different and distinct persons.
(d) The said Chiefs Olatunde Olanipekun, Aladeyo and Mr. Jalesanmi Ologun are not yet made Defendants in this case.
(e) The 2nd Claimant told him in our Chambers on 23/7/16 at about and that he verily believe her, that she would no longer be available to prosecute this case as she has decided to go and join her husband who has just been transferred to Kaduna State.
(f) The Claimants got some additional vital information from Messrs Ojo Ashama, Taiye Ashama and Mario

Godwin Ashama (they were not available when this suit was originally filed and thus could not sign their Witness Statement on Oath) that would assist the Court to get to the truth of the issues involved in this case and that it would be necessary to make them Claimants in this case.
(g) Although, that it would be unwieldy and confusing if all the foregoing are to be introduced into Claimant’s case through amendment.
(h) Consequently, that it would be tidal to discontinue this suit and file a fresh suit in its place.
(i) The leave of this Court will be necessary to discontinue this present suit before any other one can be filed, so as not to amount to abuse of Court process.
5. That this case is still at the preliminary stage as Pre-Trial conference has not been held.”

It is pertinent to note that the application was not opposed by the Respondents who were also Counter-Claimants in the said suit. Also to be emphasized is the fact that, the order which disposed of the Appellants’ original Suit No. HOW/7/2016 is that of striking out. In the instant case, the Rules of the trial Court make provision for the withdrawal or

discontinuance of suits before it. It is a general principle of law that a case which has been withdrawn and subsequently struck out or dismissed when the point of “litis contestatio” has been reached cannot be relisted for another bite at the apple – See the cases of: (1) Eronini v. Iheuko (1989) 20 NSCC (Pt.1) p. 503; (2) The Young Shall Grow Motors Ltd. V. Okonkwo (2010) 3 SCNJ p. 396 and (3) Alhaji Isiyaku Yakubu Ent. Ltd. V. Tarfa & Anor. (2014) LPELR-24223 (CA). However, a decision striking out a plaintiff’s action not heard on its merits certainly does not finally determine the respective rights of the parties in the action, nor does it adjudicate the ultimate rights of the parties in the disputations submitted to the trial Court for determination. Where therefore the rights of the parties have not been examined by the trial Court and appropriate findings made thereon, the claims effectively remain pending and can indeed be revived by any of the parties in any other Court of concurrent jurisdiction or even in the same Court that handed down the striking out order, for relisting. Most rules of trial Courts make provisions for the

relisting of such matters on such terms as may be granted on the application of any of the parties. Although an order striking out an action may have much the same effect as an order dismissing it, where a matter is simply struck out for reasons like non-compliance with a provision of law, rule or practice or where a point of objection is raised, which point can be complied with thereafter or where a process is technically bad for a reason which can be rectified later, the initiator of the matter is at liberty to re-file that process after same has been brought in compliance with the correct position of the facts, law, rule or practice as may be required. To put it in other words, a striking out order of an action not being a decision on the merits in some situations does not preclude a subsequent decision on the merits, if the action can be reopened by an appropriate procedure. The Apex Court per Wali JSC (of blessed memory) in the case of: Nigeria Airways Ltd. V. Lapite (1990) LPELR-1998 pointedly held that:
“Where the pleading by the plaintiff is struck out, and if the justice of the case demands, the Court may order a mere striking out of the

case in order to afford the plaintiff an opportunity of filing a fresh action on the same facts, if he so desires. See Shell B-P. Petroleum Development Co. of Nig. Ltd. v. M. S. Onasanya (1976) 6 SC 89. In Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) 257 (1988) 1 NSCC 1184, Karibi Whyte, J.S.C., in his dictum at p. 1197 opined thus – The Court in exercise of its powers may on the application of either of the parties before it, strike out the statement of claim or defence, either as a whole, or part of it.”
Also in the case of: Nigeria National Supply Co. Ltd. V. Establishment Sima of Vaduz (1990) LPELR – 2004 (SC), the Supreme Court per Belgore, J.S.C. (as he then was, now CJN Rtd.) on the consideration for relisting a matter that has been struck out, had the following to say:
“Thus in deciding whether to relist a matter struck out, the Court looks at the affidavit to see if there was justified delay, whether it is in the interest of justice to hear the substantive case and do justice by hearing both sides. In short, where a Court is called upon by a party to the proceedings to exercise its discretion, it looks at the matter through its own

peculiar circumstances by what are the facts disclosed in the affidavit to arrive at its discretion. This is essentially a matter of facts. It is therefore inappropriate to address such matter of discretion as a matter of law; the facts leading to the consideration of the discretion are mere facts, even though law will be applied to those facts.”
See also the cases of: (1) Alor & Anor. V. Ngene & Ors. (2007) 17 NWLR (Pt. 1062) p. 163; (2) Owoh & Ors. V. Asuk & Anor. (2008) 16 NWLR (Pt. 1112) p. 113; (3) Panalpina World Transport (Nig.) Ltd. V. J. B. Olandeen International & Ors. (2010) 19 NWLR (Pt. 1226) p. 1; (4) Lafferi (Nig.) Ltd. & Anor. V. Nal Merchant Bank Plc & Anor. (2015) LPELR- 24726 (SC) and (5) In re: Apeh & Ors. (2017) LPELR- 42035 (SC). From the peculiar circumstances of the instant matter as can be gleaned from the record of appeal particularly the grounds upon which the application of the Appellants to withdraw Suit No. HOW/7/2016 was predicated and the evidence disclosed in the affidavit in support thereof, I have reproduced these earlier on above in this judgment, it is crystal clear that, the said

withdrawal was precipitated by the need to rectify the factual and secretarial technical errors in their pleadings. The trial Court acknowledged this state of things in its ruling under review and I have hereinbefore reproduced the relevant portion of the ruling. The Appellants did not mean and definitely did not give either the trial Court and the adverse party the notion to have the suit terminated, their ultimate rights and those of the Respondents in the disputes presented to the trial Court in the suit not having been determined. The said suit remains intact and can be revived. What is more, the Counter-Claim of the Respondents, an offshoot of the Appellants’ claim, is very much alive and its trial ongoing and part-heard at the trial Court. It is my very firm view and I hold that, the Appellants are at liberty to re-file their action either by the procedure of relisting or filing a fresh action in compliance with the correct and required position of the facts, law, rule or practice.
In the instant case, it is in the interest of justice to hear not just the Counter-Claim of the Respondents but also the substantive case of the Appellants.

Both sides must be heard in order for substantial justice to be seen to have been done in this matter.
Consequent upon the foregoing illumination, issue one succeeds and is accordingly resolved in favour of the Appellants and against the Respondents.

ISSUE TWO
“Whether the Hon. Trial Judge exercised his discretion judicially and judiciously, in the context of this case, when he awarded against the Appellants the costs of N25,000.00 each on 26/10/16 and 22/11/16 and N20,000.000 on 13/02/17 respectively? (Ground Four)”

The learned counsel cataloging the circumstances surrounding the awards of the three sets of costs against the Appellants by the trial Court contended that, the quantum of the said costs was excessive and meant to be punitive. He stated in support of the contention that, on the 26th of October, 2016, costs of twenty-five thousand naira (N25,000.00) was awarded against the Appellants because their counsel made an oral application for adjournment to enable them file a reply on points of law to the Respondents’ Counter-Affidavit served on them at 3:45pm on the day before the day their motion was to be argued.

That also on the 22nd of November, 2016, costs of Twenty-five Thousand Naira (N25,000.00) was awarded against the Appellants after the trial Court dismissed their counsel’s application to re-list their substantive suit, the decision in the application is the subject of this appeal. Further on the 13th February, 2017, costs of Twenty Thousand naira (N20,000.00) was awarded against the Appellants after the dismissal of their application requesting the trial Court to stay further proceedings in the trial of the Respondents’ Counter-Claim pending the determination of the instant appeal. The learned counsel conceded that costs and the quantum of such costs are matters of discretion of the Court to be exercised judicially and judiciously. However in the instant matter, according to counsel, the trial Court did not exercise its discretion judicially and judiciously, hence, the awards should be set aside by this Court. He referred to the cases of: (1) Abacha v. Fawehinmi (2000) FWLR (Pt. 4) p. 542 at p. 629, para. D; (2) Iliyasu v. Ahmadu (2011) All FWLR (Pt. 571) p. 1588 at p. 1609, paras. G – F and (3) Ozigbu Engr. Co. Ltd. v. Iwuamadi (2011) All

FWLR (Pt. 553) p. 1975 at p. 2001, paras. D – E.

follow events and a successful party is entitled to costs unless there is a special reason for depriving him of the entitlement. However, costs are not awarded capriciously or as punitive means and are not designed to be a bonus to the other party. Costs are awarded to indemnify the other party for good reasons. In the case of: Olusanya v. Osinleye (2013) 12 NWLR (Pt. 1367) p. 148, Alagoa, J.S.C. [as he then was, now J.S.C.(Rtd.)] had the following to say:
“Costs awarded are supposed to be compensatory to a successful party without being punitive to an unsuccessful party and costs that are awarded to serve as a deterrent to an unsuccessful party to prevent him from filing future claims of a particular kind are punitive and a Court that awards such costs cannot be said to be exercising its discretion judiciously and judicially. The power to vary such an order on costs wrongly exercised by the High Court is vested in the Court of Appeal by Section 16 of the Court of Appeal Act and the Court of Appeal Rules. See Emavworhe Etajata & Ors. V. Peter Ologbo & Anor. (2007) 16 NWLR (Pt. 1061) 554.”

See also the cases of: (1) Ladega v. Akinliyi (1969) LPELR – 15500 (SC); (2) Layinka v. Makinde (2002) 10 NWLR (Pt. 775) p. 358 and (3) G.K.F. Investment (Nig.) Ltd. v. Nigeria Telecommunications Plc (2009) 15 NWLR (Pt. 1164) p. 344. In the instant matter, the awards of the three sets of costs against the Appellants under the above stated circumstances were not only capriciously made by the trial Court, they were obviously meant to be punitive. The three sets of costs awarded were meant to deter the Appellants from making and filing future applications similar to those made and filed by them in the circumstances. Whereas, the Appellants only sought to exercise their rights under the law and rules of the trial Court in the circumstances leading to the said awards of costs against them. It is my firm opinion and I hold that, the trial Court in its assessments and awards of the three sets of costs did not only fail to take into account the equal interests of both parties, the trial Court also did not exercise sound, discrete and wise judgment thereon. Consequently, the trial Court’s discretion cannot be said to have been exercised judicially and judiciously in the circumstances. The said

awards are not sustainable in law. This issue is equally resolved in favour of the Appellants.

The issues for determination having been resolved in favour of the Appellants and against the Respondents, this appeal is obviously imbued with success.
The appeal is thus allowed.
The ruling of the trial Court in Suit No. HOW/7/2016 delivered on the 22nd day of November, 2016 is accordingly set aside.

The application of the Appellants filed on the 15th of November, 2016 for the relisting of Suit No. HOW/7/2016 is hereby granted as prayed. The said Suit is accordingly restored to the Cause List of the trial Court.

Furthermore, the orders made by the trial Court on the 26th of October, 2016, 22nd of November, 2016 and 13th of February, 2017 awarding the sums of Twenty-five Thousand Naira, Twenty-five Thousand Naira and Twenty Thousand Naira respectively as costs against the Appellants are hereby set aside.

The case file in this matter is accordingly remitted to the Chief Judge of the High Court, Ondo State for reassignment to a Judge of that Court other than Hon. Justice N.S. Adeyanju for expeditious trial “de novo”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Oyebisi Folayemi Omoleye, JCA and very much convinced with the treatment of the three (3) issues distilled by the Appellant from the five (5) Grounds of Appeal in the Notice of Appeal.

I am in full agreement with the reasoning and conclusion of my learned brother as contained in the lead judgment with nothing useful to add thereto.

The issues for determination having been resolved in favour of the Appellants, the Appeal succeeds and therefore allowed as in the lead judgment.

The case file in this matter is accordingly remitted to the Chief Judge of Ondo State for reassignment to a Judge of the Court other than the Hon. Justice N. S. Adeyanju for expeditious trial “de novo”.

PATRICIA AJUMA MAHMOUD, J.C.A.: I was privileged to read in advance the lead judgment of my learned brother, OYEBISI F. OMOLEYE, JCA. I agree entirely with the succinct reasoning and conclusions reached thereat which I adopt as mine. I allow appeal and abide by all the consequential orders made in the lead judgment.
I make no order as to costs in this appeal.

Appearances:

S. Adedeko, with him, Ibrahim Ahmad holding the brief of Joseph Adewunmi For Appellant(s)

Wumi Fabuluje For Respondent(s)