BAKARI v. OGUNDIPE & ORS (2020)

BAKARI v. OGUNDIPE & ORS

(2020) LCN/4927(SC)

In The Supreme Court

On Friday, March 13, 2020

SC.514/2015

Before Our Lordships:

Olabode Rhodes-Vivour Justice of the Supreme Court of Nigeria

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Chima Centus Nweze Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Between

HAJIA YINUSA BAKARI APPELANT(S)

And

DEACONESS (MRS) FELICIA ARINOLA OGUNDIPE 2. THE MINISTER FEDERAL CAPITAL TERRITORY 3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 4. THE ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

RATIO

WHETHER OR NOT THE CLAIM OF A PLAINTIFF DETERMINES THE JURISDICTION OF THE TRIAL COURT

It is well settled that it is the claim of the Plaintiff that determines the jurisdiction of the trial Court. See Emeka v Okadigbo & 4 Ors (2012) 7 SC (Pt. 1) p.1, PDP v Sylva & 2 ors (2012) 4-5 SC p.36 In N.E.P.A. v Edegbero (2002) 18 NWLR (Pt. 798) p. 79, it has been held in decisions of this Court that by virtue of Section 251 (1) of the Constitution, once one of the parties is the Federal Government or any of its agencies, only the Federal High Court has jurisdiction to determine the suit. That is to say the Federal High Court has exclusive jurisdiction to entertain matters specified in Section 251 (1) (a) – (s) of the Constitution.
Indeed in Kakih v PDP (2014) 15 NWLR (Pt.1430) p.374, in support of N.E.P.A. v Edegbero supra. I said that:
“The claim of the party and the reliefs must be within Section 251 (1) of the Constitution before the Federal High Court can have jurisdiction. Furthermore, where an agency of Federal Government is a party, the principal reliefs must be directed against the Federal Government or any of its agencies before a Federal High Court can have jurisdiction.”
Now, the High Court of the Federal Capital Territory has jurisdiction to entertain suits when:
(a) Suits in which agencies of the Federal Government are not parties.

(b) Suits in which agents of the Federal Government are parties and agencies of the Federal Capital Territory. See Okoyode v FCDA (2006) ALL FWLR (Pt.198) p.1200. PER RHODES-VIVOUR, J.S.C.

DEFINTION OF THE TERM “WAIVER”

The law is very well settled that counsel may waive a defect in procedure which is procedural law.
What is waiver and what are the consequences when counsel waives his right?
Waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile and complain of what he has waived. Put in another way, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. See Ariori & Ors v Elemo & Ors (1983) 14 NSCC P.1; Chief John Eze v Dr. C.I. Okechukwu & 7 Ors (2002) 14 SCM p.105. PER RHODES-VIVOUR, J.S.C.

OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): The 1st Respondent/ Plaintiff served in the Federal Civil Service for thirty-five years. She ended her career as a Federal Civil Servant as the Director of Library Services of the Supreme Court. She retired on 15 January, 2004 after thirty-five 35 years unblemished service in the Federal Civil Service. While in service in the Supreme Court she was allocated a 3 bedroom duplex at Block D44, Flat 3, Zone F Extension Apo Abuja, as her official quarters. She lived in the property thereafter. On 1 October, 2003, the Federal Government commenced a monetization policy of fringe benefits in the Civil Service. The thrust of this policy among other things was the sale of Federal Government Houses (i.e. residential Houses, etc). By this policy, the 1st Respondent was entitled to be given the right of first refusal since she had been living in the house for over five years. The 1st Respondent was interested in acquiring the house, so she wrote a letter to the Head of Service of the Federation, through the Chief Registrar of the Supreme Court wherein she indicated her interest to purchase the House in line

with the monetization policy which took effect from 1 October, 2003.

The process for purchasing Houses took a different turn when the Federal Government transferred the purchase of Houses to the Respondents’. The Respondents’ proceeded to issue Sales guidelines and requested the 1st Respondent to fill and submit a Form for the expression of interest to purchase the said House, i.e. 3 bedroom duplex at Block D44, Flat 3. The 1st Respondent completed and submitted the Form. By a letter dated 8 August, 2005, the 2nd Respondent rejected the 1st Respondent’s application on the ground that she was not qualified to apply as a career civil servant since she retired on 15 January, 2004. The 1st Respondent protested to the 2nd Respondent. By a letter dated 8 August, 2005, the 2nd respondent invited the 1st Respondent to participate in a public bidding as a member of the general public. She participated, while still contesting the 2nd Respondent’s decision to deny her, her right of first refusal as a career civil servant. While awaiting the results of the public bid, the 1st Respondent travelled to England for urgent medical attention. It was while she was

recuperating in England that the 2nd Respondent announced that the apartment had been won by the 3rd Respondent. On her return to Nigeria, she made enquires as to what happened to her application. She was told at the 2nd Respondent’s office that her Form was misplaced. The 2nd Respondent realized their mistake, and to correct the error, she was given yet another FORM which she filled and submitted with a Bank draft. See Exhibit FAO 12 (1) and (2). She had to vacate the house when she received a quit Notice dated 21 April, 2006. When all efforts by the 1st respondent failed to redress her plight she filed an action in a High Court of the Federal Capital Territory. The appellant and 2nd, 3rd and 4th Respondents were the defendants.

The 1st Respondent as Plaintiff claimed the following reliefs on a Writ of Summons and Statement of Claim filed on 27 April 2006:-
1. A DECLARATION that the plaintiff is a beneficiary of the Monetization Policy of the Federal Government of Nigeria having been in active service as at the time the policy took effect.
2. A DECLARATION that the plaintiff has accrued right as a result of her being in active

service when the Monetization Policy began.
3. AN ORDER directing the 1st and 2nd Defendants to give the plaintiff the opportunity to exercise her right of first refusal in respect of Flat 3 Block D44, Zone D extension Apo Legislative Quarters, Abuja.
IN THE ALTERNATIVE
4. A DECLARATION that the plaintiff was entitled to be given fair consideration in the bidding exercise carried out by the 1st and 2nd Defendants in September and November 2005, the Plaintiff having submitted the expression of interest form in respect of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja for the said bidding exercise.
5. A DECLARATION that the non-consideration of the plaintiff in the said public bidding before awarding the said flat to the 3rd defendant is null and void.
6. A DECLARATION that the purported sale of flat 3, Block D44, Zone D extension Apo Legislative Quarters, Abuja to the 3rd defendant is null and void.
7. AN ORDER restraining the 1st, 2nd and 3rd Defendants, their privies, agents, servants, employees, or anybody deriving authority from them from distributing, ejecting, evicting, dispossessing,

quitting, forcefully removing, harassing and or intimidating the plaintiff from peaceful enjoyment of the said property until she so exercises her right.
8. And for such further order or other orders as the plaintiff may be entitled to under the law and constitution.

The Plaintiff filed a 39 paragraph statement of claim, while the 1st and 2nd Defendants filed a joint Statement of defence of 8 paragraph. The 3rd defendant filed a 16 paragraph statement of defence. The 4th Defendant did not file a statement of defence.

The Plaintiff gave evidence on 28 February, 2008 in support of her case and documents marked Exhibits 1-7, 8, 8A, 9, 10, 11, 11A, 12-16, 17 and 17A, 18, 19, 20 and 20A – D, 21 were admitted through her. Her case was closed thereafter on 14 May, 2008. After several adjournments at the instance of counsel for the defendants’ who had difficulty bringing their witnesses to Court. DW1 gave evidence on 29 April, 2009 for the 1st and 2nd Defendants.

Learned counsel for the 1st and 2nd Defendants closed their case after DW1 was cross-examined.

DW2 gave evidence for the 3rd Defendant. – Exhibits 22, 23-27 were admitted through him. Evidence from witnesses ended on 24 June, 2009. Thereafter written addresses were adopted by counsel.

In a considered judgment delivered on 18 November, 2009, the learned trial Judge, Talba J., reasoned as follows:
” ……. I come to the conclusion that the Plaintiff, having retired on 19 January, 2004 four months before the commencement of the sale of Federal Government Houses on 1 April, 2005. The Plaintiff was not entitled to exercise the option of first refusal on the property the subject matter of this suit. Hence she ceases to be a serving career public servant. In the same vein as at the time the Plaintiff bided for the property the subject matter of this suit. The property was bided and won by the 3rd Defendant who thereafter proceeded to make full payments. Therefore the sale of the said property by the 1st and 2nd Defendants to the 3rd Defendant is valid and subsisting.”

And with the above reasoning, the learned trial judge dismissed all the Plaintiff’s claims.

Dissatisfied with the judgment of the trial Court, learned counsel for the Plaintiff/1st Respondent, filed an appeal. It was heard by the Court of Appeal, (Abuja Division). That Court by a majority decision found the line of reasoning of the trial Court faulty and allowed the Appeal.

The Appellant’s main prayers in the lower Court were refused. However her alternative claims were granted as follows:
1. It is hereby declared that the Plaintiff/Applicant was entitled to be given fair consideration in the bidding exercise in respect of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.
2. It is hereby further declared that the purported sale of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja to the 3rd Defendant/Respondent is null and void.
3. An Order is hereby granted restraining the 1st, 2nd and 3rd Defendants, whether by themselves or by their privies, agents, servants, employees or anybody deriving authority from them from disturbing, ejecting, evicting, dispossessing, quitting, forcefully removing, harassing and or intimidating the Plaintiff from peaceful enjoyment of the said property.
4. The Plaintiff/Appellant is hereby declared or designated as the winning Bidder of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.

The Plaintiff/Appellant is hereby ordered to pay the bid amount N10, 100, 000.00 (Ten Million, One Hundred Thousand Naira) and other legal charges in respect of the said Flat within 90 days from today.This appeal is against that judgment. Briefs were filed and exchanged by counsel.
An amended Appellants brief was filed by E. Jegede SAN on 8 November, 2017 but deemed duly filed and served on 26 June 2018. A. Awomolo SAN filed the 1st Respondents brief on 28 June, 2018
P.E. Ediale Esq., filed a joint brief for the 2nd and 3rd Respondents on 13 November, 2019.
The 4th Respondent did not file a brief.

Learned counsel for the Appellant, E. Jegede SAN formulated seven issues for determination:
1. Whether the Court of Appeal had jurisdiction to entertain the appeal before it given the parties and the claim of Plaintiff/1st Respondent before the High Court of Federal Capital Territory?
2. Whether the provisions of Public Officers Protection Act will not render the Plaintiff/1st Respondents claim before the High Court of Federal Capital Territory incompetent and in turn rob the Court of Appeal of jurisdiction to entertain the appeal and deliver judgment in favour of Plaintiff/1st Respondent?

Whether the Court of Appeal had jurisdiction to entertain the appeal before it having regard to the incompetent originating process, i.e. the statement of claim filed before the Trial Court and signed by an unknown person for Plaintiffs counsel?
4. Whether the Court of Appeal had the jurisdiction in the circumstance to grant reliefs that are contrary to the claim of Plaintiff/1st Respondent and/or reliefs not sought in the statement of claim.
5. Whether the conclusion and decision of the lower Court of Appeal that Plaintiff/1st Respondent bid is the only public bid and that the bid of the Appellant was a sham is not contrary to the Plaintiff/1st Respondent pleadings before the Court?
6. Whether having regard to the pleading of the parties, the learned justices of the Court of Appeal did not wrongly raise the issue of proof and the burden of proof as it relates to the bid of the Appellant?
7. Whether the Court of Appeal was not wrong in giving judgment for the Plaintiff/1st Respondent after a reopening, and reappraisal of the evidence?

On his part, learned counsel for the 1st Respondent, A. Awomolo SAN formulated five issues for determination.
1. Whether the Court of Appeal, had jurisdiction to entertain the Appeal of the 1st Respondent, based on the claims of the 1st Respondent at the High Court of the Federal Capital Territory, one of the parties (The Minister, Federal Capital Territory) and the Hon. Attorney General of the Federation being Federal Government.
2. Whether the Appeal heard and determined by the Court of Appeal, was statute barred vis a vis the provision of Section 2A of the Public Officers Protection Act LFN 2004.
3. Whether the Statement of claims allegedly signed on behalf of Chief Adeboyega Awomolo SAN, a legal practitioner duly called to the bar and also a Senior Advocate of Nigeria with his name, boldly inscribed on it denied the Court of Appeal jurisdiction to adjudicate over the Appeal, same having NOT been raised and determined by the lower Court.
4. Whether the Court of Appeal was right in law in declaring the 1st Respondent the winning bid based on the evaluated facts and evidence before it and the claims of the 1st Respondent on the record before the trial Court.

Whether having regard to the pleadings and evidence of parties, the learned Justices of the Court of Appeal were right to consider the issue of proof and burden of proof with regards to the pleadings and evidence of the parties.Learned counsel for the 2nd and 3rd Respondents P.E. Ediale Esq., filed a brief, but I shall not reproduce issues formulated by him for reasons I shall disclose very soon in this judgment.
I earlier said that the 4th Respondent did not file a brief.

At the hearing of the Appeal on 16 December, 2019 the Appellant was absent and unrepresented.
His brief was taken as adopted.

D. Anieh Esq., now appeared for the 2nd and 3rd Respondents. He conceded that his brief was irregular.

Learned counsel for the 3rd Respondent, now E. Fatogun Esq., adopted the 1st Respondent’s brief filed on 28 June, 2018. He urged the Court to strike out the joint brief of the 2nd and 3rd Respondents since the argument in the brief does not support the judgment of the trial Court. He further urged the Court to Appeal.

A Respondent’s role in an Appeal is to defend the judgment on Appeal, and not attack it.
On the other hand, it is duty of the Appellant to attack the judgment. After all he filed the Appeal because he believes it is wrong. If a Respondent is not satisfied with the judgment on Appeal he should file a Cross Appeal or Respondents Notice. See New Nig Bank PLC v Egun (2001) 7 NWLR (Pt. 711) p.1 and Ibe v Onuorah (1999) 14 NWLR (Pt. 638) p. 340.
It must be noted, though that a Cross Appeal and a Respondents Notice cannot co-exist.
When this Appeal was heard on 16 December, 2019, learned counsel for the 2nd and 3rd Respondents, D. Ameh informed the Court that his brief was irregular. He did not say how his brief was irregular. Rather than defend the judgment of the Court of Appeal, the 2nd and 3rd Respondents filed a joint brief attacking the judgment.
In their conclusion they pray this Court to set aside the judgment of the Court of Appeal and in its place restore the judgment of the trial Court dismissing the claims of the 1st Respondent.

Their role is fundamentally wrong. Their prayer ought to be for this Court to dismiss the Appeal. Since the 2nd and 3rd Respondents abandoned their role as Respondents’, their joint brief would not be considered. It is hereby struck out.

I have examined issues formulated by counsel for the appellant and the first Respondent and I am satisfied that the following issues shall be considered in this Appeal. The Appellant’s issues 1, 2 and 3, since they are on jurisdiction. The Appellant’s issue 4 and the 1st Respondent’s issue 5 which goes to the root of the action.

ISSUE 1
Whether the Court of Appeal had jurisdiction to entertain the Appeal before it given the parties and the claim of the Plaintiff/1st Respondent before the High Court of the Federal Capital Territory?

Learned counsel for the Appellant observed that given the parties and the claim, the High Court of the Federal Capital Territory and the Court of Appeal are without jurisdiction to entertain the claim/Appeal since the Plaintiff’s claim primarily and principally challenged the Administrative action and decisions of the 2nd and 3rd Respondents. Reference was made to Sections 257 (1) and 251 (1)(p) and (r) of the Constitution.

He submitted that the Statement of claim reveals the entitlement of the Plaintiff as a beneficiary of the monetization policy, her accrued rights and how the 2nd and 3rd Respondents by their actions and decisions denied the Plaintiff those rights by excluding her from enjoying her right of first refusal and from the bidding process.

He further submitted that since the claim of the Plaintiff constitutes a challenge to the Administrative and Executive decisions of the 2nd and 3rd Respondents with respect to the Administrative guidelines published by the Federal Government of Nigeria on the subject of monetization policy then it is to Federal High Court and not the High Court of the Federal Capital Territory that has jurisdiction to determine the Plaintiff’s claim. Reliance was placed on:
Kakih v PDP (2014) 15 NWLR (Pt. 1430) p. 374.
PDP v Sylva (2012) 13 NWLR (Pt. 1316) p. 85.

Concluding, he urged this Court to hold that only the Federal High Court is vested with jurisdiction to adjudicate on the Plaintiff’s claim.

Responding, learned counsel for the 1st Respondent observed that the principal parties in this suit are the Appellant and the 2nd and 3rd Respondents.

He submitted that the 2nd and 3rd Respondents whose actions are being challenged are not agents of the Federal Government, but agents of the Federal Capital Territory which has the status of a State.
Reliance was placed on Section 299 of the Constitution.
Okoyode v FCDA (2006) ALL FWLR (Pt.298) p. 1200.

He observed that the monetization policy was of the Federal Government but implemented by the Federal Capital Territory Administration which is not an agent of the Federal Government, contending that it is not an act or decision of the Federal Government or its agencies. Concluding he observed that none of the claims sought were against the Federal Government or its agencies but against the Appellant (a private citizen) and agencies of the Federal Capital Territory Administration and the Minister.

He urged this Court to hold that the claims of the Plaintiff can only be heard in a State High Court which in this case is the Federal Capital Territory High Court.

It is very important to decide the status of Abuja and whether the 2nd and 3rd Respondents are Agencies of the Federal Government of Nigeria.

A decision would lay to rest once and for all time proper Court to hear the Plaintiff’s claim Section 299 of the Constitution states that:
299. The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation; and accordingly-
(a) all the Legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the Courts of a State shall respectively, vest in the National Assembly, the President of the Federation and in the Courts which by virtue of the foregoing provisions are Courts established for the Federal Capital Territory, Abuja;
(b) all the powers referred to in paragraph (a) of this Section shall be exercised in accordance with the provisions of this Constitution; and
(c) the provisions of this Constitution pertaining to the matters aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of this Section.
By virtue of the provisions of Section 299 of the Constitution, it is so clear that Abuja,

the Federal Capital of Nigeria has the status of a State. It is as if it is one of the States of the Federation.
An Agency is an executive or regulatory body of a state, such as state Offices, Departments, Divisions, Bureaus, Boards and Commissions.
The 2nd Respondent, i.e. the Minister of the Federal Capital Territory, though a Minister of the Federal Government occupies a similar position of Governor of a State, since Abuja is classified as a State by Section 299 of the Constitution. The 2nd Respondent is thus the Chief Executive of the Federal Capital Abuja.
The Federal Capital Development Authority i.e. the 3rd Respondent is established by Section 3 of the Federal Capital Territory Act. It is a Governmental Agency of the Federal Territory, Abuja.
It is the actions of the 2nd and 3rd Respondents that are challenged. They are both agents of the Federal Capital Territory, Abuja, which has the status of a State. They are not agencies of the Federal Government of Nigeria.

JURISDICTION
It is well settled that it is the claim of the Plaintiff that determines the jurisdiction of the trial Court.

See Emeka v Okadigbo & 4 Ors (2012) 7 SC (Pt. 1) p.1, PDP v Sylva & 2 ors (2012) 4-5 SC p.36 In N.E.P.A. v Edegbero (2002) 18 NWLR (Pt. 798) p. 79, it has been held in decisions of this Court that by virtue of Section 251 (1) of the Constitution, once one of the parties is the Federal Government or any of its agencies, only the Federal High Court has jurisdiction to determine the suit. That is to say the Federal High Court has exclusive jurisdiction to entertain matters specified in Section 251 (1) (a) – (s) of the Constitution.
Indeed in Kakih v PDP (2014) 15 NWLR (Pt.1430) p.374, in support of N.E.P.A. v Edegbero supra. I said that:
“The claim of the party and the reliefs must be within Section 251 (1) of the Constitution before the Federal High Court can have jurisdiction. Furthermore, where an agency of Federal Government is a party, the principal reliefs must be directed against the Federal Government or any of its agencies before a Federal High Court can have jurisdiction.”
Now, the High Court of the Federal Capital Territory has jurisdiction to entertain suits when:
(a) Suits in which agencies of the Federal Government are not parties.

(b) Suits in which agents of the Federal Government are parties and agencies of the Federal Capital Territory. See Okoyode v FCDA (2006) ALL FWLR (Pt.198) p.1200.
The claim of the Plaintiff is all about land, and whether the monetization policy of the Federal Government implemented by the Federal Capital Territory Authority, was properly implemented. The monetization policy was implemented by the Federal Capital Territory Authority, which is not an agent of the Federal Government. The claim of the Plaintiff which is against the Appellant and the 2nd and 3rd Respondents is not within any of the causes of action, or claims in Section 251 (1) (a) – (s) of the Constitution.
Furthermore none of the claims sought is against the Federal Government or any of its agencies. The 1st Respondent/Plaintiff’s claim can only be heard in a State High Court, and in this case, the Federal Capital Territory High Court. That Court had jurisdiction to hear and determine the 1st Respondent/ Plaintiffs claims.
In view of the fact that the 2nd and 3rd Respondents are agencies of the Federal Capital Territory, which is a State, by virtue of the

provisions of Section 299 of the Constitution, the High Court of Federal Capital Territory has jurisdiction to hear the 1st Respondent’s/Plaintiff’s claim, and the Court of Appeal has jurisdiction to entertain the Appeal.

ISSUE 2
Whether the provisions of the Public Officers Protection Act will not render the Plaintiff/1st Respondent’s claim before the High Court of Federal Capital Territory incompetent and in turn rob the Court of Appeal of jurisdiction to entertain the appeal and deliver judgment in favour of Plaintiff/1st Respondent.

Learned counsel for the Appellant observed that the Plaintiff’s action challenged the administrative and executive decisions of the 2nd and 3rd Respondents, both public institutions and Offices, contending that the Plaintiff’s cause of action occurred on September/November 2005, when the Plaintiff was excluded from the bidding exercise under the monetization policy of the 2nd and 3rd Respondents, submitting that the action was instituted on 27 April, 2006, contrary to Section 2(a) of the Public Officers Protection Act which stipulates that action against public officers must be brought within three months after the act

complained of. Relying on Egbe v Adefarasin (1987) 1 NWLR (Pt. 47) p. 1 and Ibrahim v Lawal (2015) 17 NWLR (Pt. 1489) p. 490.

He urged this Court to resolve this issue in favour of the Appellant.

Learned counsel for the 1st Respondent observed that what the Court considers is the core issue in the claim contending that the core or primary issue is in respect of land/property built on land and sale of the property thereof. Reliance was placed on Osun State Government v Dalami Nig Ltd (2007) ALL FWLR (Pt. 365) p. 438. He submitted that claims for recovery of land, breaches of contract, claims for work and labour done are excluded from the ambit of the provisions of Section 2 (a) of the Public Officers (Protection) Act 2004.
He referred to Salako v L.E.D.B. & Anor 20 NLR p. 169; NPA v Construzioni Generali F.C.S. & Anor (1974-1975) 9 NSCC p.622.
He urged this Court to hold that the suit was not statute barred.

It is without dispute that this in an action for recovery of land/House occupied by the 1st Respondent from which she was thrown out. She wants her house back and for her house to be given to her in

accordance with the monetization policy.
It is now settled that Section 2 of the Public Officers (Protection) Act does not apply to cases of recovery of land. See Salako v LEDB 20 NLR p.169. The submission of learned counsel for the 1st Respondent was therefore well taken. This suit is not statute barred, since Section 2 of the Public Officers (Protection) Act does not apply to it.

ISSUE 3
Whether the Court of Appeal had jurisdiction to entertain the appeal before it having regard to the incompetent Originating process, i.e. the Statement of Claim filed before the Trial Court and signed by an unknown person for Plaintiff’s counsel?

Learned counsel for the Appellant submitted that the Court of Appeal had no jurisdiction to hear the appeal because the Originating process which was signed for Chief A.S. Awomolo SAN by an unknown person is invalid and incompetent, contending that for an Originating process to be valid, it must be signed by a legal Practitioner. Reliance was placed on Adeneye v Yaro (2013) NWLR (Pt. 1342) p. 625; Okafor v Nweke (2007) 10 NWLR (Pt. 1043) p.521; FBN v Maiwada (2013) 5 NWLR (Pt. 1348) p. 44

Concluding, he submitted that since the Statement of claim was signed for A. Awomolo SAN by an unknown person, it is invalid and incurably so.

He urged this Court to resolve this issue against the 1st Respondent.

Responding, learned counsel for the 1st Respondent observed that the jurisdiction of the Court is activated by the Originating process, i.e. the Writ of Summons and not the Statement of Claim. Reference was made to Order 4 Rule 1, 2 and 3 of the High Court of Federal Capital Territory (Civil Procedure) Rules, 2004 contending that the Statement of claim was based on a validly made Writ. off Summons in accordance with the Rules of Court.

Concluding his submissions, he observed that the Appellant having filed a defence on the pleading being complained about, led evidence on same, filed written address and obtained judgment, having defended the said judgment in the Court of Appeal and these issues were not raised, it is too late to complain as he has waived his right. Reliance was placed on Korum Ltd v International Trust Bank PLC (2010) LPELR – 4408

He argued that no serious attention should be

accorded the submissions of learned counsel for the Appellant, and that this Court should proceed to do substantial justice.

It is important I set out the facts on this issue. The 1st Respondent, as Plaintiff had at the trial Court filed a Statement of claim on 27 April, 2006 signed by someone, but it cannot be said who signed the process.
The Appellant did not raise any objection on this defect at the trial Court nor at the Court of Appeal but raised it as an issue of jurisdiction at the Supreme Court for the first time.
The Appellant participated in the proceedings and evidence from the statement of claim was called after the Statement of defence joining issues with the defective Statement of claim. The trial Court gave judgment upon the evidence and even at the Court of Appeal no issue was made of the alleged defective Statement of Claim.
In SLB Consortium Ltd v NNPC (2011) 4 SC (Pt.1) p.86, I explained how processes filed in Court are to be signed. I said:
First, the signature of counsel, which may be any contraption.
Secondly, the name of counsel clearly written.
Thirdly, who counsel represents.

Fourthly, name and address of legal Firm.
It is clear from the facts above that the Statement of Claim was signed, but there was no name of counsel. So the process is irregular.
If the trial judge raised this issue Suo Motu and called on counsel to address him on it, the suit would have been struck out. This would also be the outcome, if learned counsel for the defendant raised objection.
Why was the suit not struck out?
In A.G. Kwara State & Anor v Saka Adeyemo & Ors (2016) 7 SC (Pt.II) p. 149.
I said that:
Jurisdiction is a question of law.
There are two types of jurisdiction.
1. Jurisdiction as a matter of procedural law.
2. Jurisdiction as a matter of substantive law. A litigant may waive the former.
Again in Appeal No: SC.175/2005 Heritage Bank Ltd v Bentworth Finance (Nigeria) Ltd decided by this Court on 23 February, 2018 Eko J.S.C. explained the distinction between substantive jurisdiction and procedural jurisdiction.
The law is very well settled that counsel may waive a defect in procedure which is procedural law.
What is waiver and what are the

consequences when counsel waives his right?
Waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile and complain of what he has waived. Put in another way, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. See Ariori & Ors v Elemo & Ors (1983) 14 NSCC P.1; Chief John Eze v Dr. C.I. Okechukwu & 7 Ors (2002) 14 SCM p.105
After the Writ of Summons and Statement of Claim filed by the 1st Respondent/ Plaintiff were served on the Appellant, he did not raise any objection to the defect in the Statement of Claim at the trial Court instead, he filed a Statement of defence and participated in trial and judgment was delivered in his favour. Not objecting to the signature on the Statement of claim amounts to a waiver. It is only when objection is made at the earliest opportunity can it be said that the right

was not waived. I shall give special consideration to these cases relied on by learned counsel for the Appellant.
In Adeneye v Yaro (2013) NWLR (Pt. 1342) p. 625, the Notice of Appeal was signed by an unnamed person. The Court raised the issue suo motu and invited counsel to address it on the competence of the appeal.
In Okafor v Nweke (2007) 10 NWLR (Pt. 1043) p.521, a motion on Notice signed by J.H.C. Okolo, SAN & Co for extension of time within which to apply for leave to cross appeal etc. was filed in the Supreme Court. The Notice of Appeal was also signed by J.H.C. Okolo SAN & Co. Counsel for the 1st – 3rd Respondents raised the issue of competence of the Appellants motion.
In F.B.N. PLC v Maiwada (2013) 5 NWLR (Pt. 1348) p.44, Appellants appealed to Court of Appeal by Notice of Appeal dated 30 May, 2000, signed by David M. Maido & Co.
Respondents raised Preliminary Objection challenging the competence of the appeal on the ground that the Notice of Appeal was neither signed by the Appellants’ nor by a legal practitioner acting on their behalf. The Court of Appeal upheld the Preliminary

Objection and struck out the Notice of Appeal.
In these cases, counsel on the other side quickly complained about the incompetence of the Originating process. He did not waive his right to object. The process was struck out accordingly. I do not see in what way these cases could assist learned counsel for the Appellant on the point under consideration.
The appellant accepted the statement of claim as if it was very much in order. He participated in the proceedings, filed a statement of defence and called evidence. Judgment of the trial Court was given, dismissing the 1st Respondent’s claim. The Appellant was happy. He did not complain. The 1st Respondent/Plaintiff filed an appeal. On Appeal, the Appellant defended the judgment and never made the defective Statement of Claim an issue.
When the Appellant lost in the Court of Appeal he appealed to the Supreme Court, and made the issue of the competence of the Statement of Claim an issue for the first time. It is clear he waived his right to object to the defective process. The right of the Appellant to object to the defective statement of claim is a waivable right, being procedural jurisdiction. A private right.

It would be most inequitable and unjust to the 1st Respondent/Plaintiff for the Appellant after waiving his right to complain about the Plaintiff’s incompetent process, to be allowed to complain on Appeal. Waiver is inferred or implied after examining the conduct of the Appellant.
No Court would allow the Appellant to renege from his acquiescence.
This issue is resolved against the Appellant.

ISSUE 4
Whether the Court of Appeal has the jurisdiction in the circumstances to grant reliefs that are contrary to the claim of Plaintiff/1st Respondent and/or reliefs not sought in the Statement of Claim.

Learned counsel for the Appellant observed that the Plaintiff/1st Respondent never sought relief that she was the highest bidder, or that she should be declared the highest bidder, or that she be ….. respect of the Flat. He argued that notwithstanding the above, the Court of Appeal actually declared the Plaintiff/1st Respondent as the “winner bidder” and proceeded to order her to pay N10,100,000 (Ten Million, One Hundred Thousand Naira), when no such claim was sought before the trial Court.

He submitted that the Court may grant less but not more than is claimed by the litigant. Reliance was placed on:
Ekpenyong v Nyong (1975) 9 NSCC p.28
Okoya v Santilli (1994) 4 NWLR (Pt. 338) p.256.

Concluding, he observed that the Court of Appeal granted unsolicited and unclaimed reliefs to wit:
“4. The Plaintiff/Appellant is hereby declared or designated as the winning bidder of Flat 3, Block D44 Zone D Extension, Apo Legislative Quarters Abuja.
5. The Plaintiff/Appellant is hereby ordered to pay the bid amount of N10,100,000 (Ten Million, One hundred Thousand Naira) and other legal charges in respect of the said Flat within 90 days from today.
He urged this Court to resolve this issue in favour of the Appellant.

Learned for the Plaintiff/1st Respondent submitted that the Orders granted were consequential Orders flowing from the reliefs sought. Reliance was placed on:
Inakoju v Adeleke 2007 4 NWLR (Pt. 1025) p. 427.
Reg Trustees of Apostolic Church v Olowoleni (1990) 6 NWLR (Pt. 158) p. 514.

Further submitting that it was a lawful consequential order which flowed and emanated from the facts of the Appeal.

He urged this Court to resolve this issue against the Appellant.

The 1st Respondent as Plaintiff’s claim was for:
1. A DECLARATION that the plaintiff is a beneficiary of the Monetization Policy of the Federal Government of Nigeria having been in active service as at the time the policy took effect.
2. A DECLARATION that the plaintiff has an accrued right as a result of her being in active service when the Monetization Policy began.
3. AN ORDER directing the 1st and 2nd Defendants to give the plaintiff the opportunity to exercise her right of first refusal in respect of Flat 3 Block D44, Zone D extension Apo Legislative Quarters, Abuja.
IN THE ALTERNATIVE
4. A DECLARATION that the plaintiff was entitled to be given fair consideration in the bidding exercise carried out by the 1st and 2nd Defendants in September and November 2005, the Plaintiff having submitted the expression of interest form in respect of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja for the said bidding exercise.
5. A DECLARATION that the non-consideration of the plaintiff in the said public bidding before

awarding the said flat to the 3rd defendant is null and void.
6. A DECLARATION that the purported sale of flat 3, Block D44, Zone D extension Apo Legislative Quarters, Abuja to the 3rd defendant is null and void.
7. AN ORDER restraining the 1st, 2nd and 3rd Defendants, their privies, agents, servants, employees, or anybody deriving authority from them from distributing, ejecting, evicting, dispossessing, quitting, forcefully removing, harassing and or intimidating the plaintiff from peaceful enjoyment of the said property until she so exercises her right.
8. And for such further order or other orders as the plaintiff may be entitled to under the law and constitution.

The Court of Appeal granted the Plaintiff/1st Respondent’s claim as follows:
1. It is hereby declared that the Plaintiff/Appellant was entitled to be given fair consideration in the bidding exercise in respect of Flat 3, Block D44, Zone D Extension, Apo, Legislative Quarters, Abuja.
2. It is hereby further declared that the purported sale of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja to the 3rd Defendant/Respondent is null and void.

An Order is hereby granted restraining the 1st, 2nd and 3rd Defendants, whether by themselves or by their privies, agents, servants, employees or anybody deriving authority from them from disturbing, ejecting, evicting, dispossessing, quitting, forcefully removing, harassing and or intimidating the Plaintiff from peaceful enjoyment of the said property.
4. The Plaintiff/Appellant is hereby declared or designated as the winning Bidder of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.
5. The Plaintiff/Appellant is hereby ordered to pay the bid amount N10,100,000.00 (Ten Million, One Hundred Thousand Naira) and other legal charges in respect of the said Flat within 90 days from today.

When a party as in this case, the Plaintiff/1st Respondent made claims the in alternative, she is saying that she wants either of her reliefs. So any of the claims granted suffices for the purpose of satisfying her claim. When a Court grants the main claim, the alternative claim would no longer be considered. When the main claim fails, the alternative claim must be considered, and if found proved the Court should

grant it as the Court of Appeal did in this Appeal.

A Court has no jurisdiction to grant a relief not claimed or more than the claimant can prove, but can grant less than is claimed. See Ogunyade v Oshunkeye (2007) 7 SCNJ p. 170; Ezeonwu v Onyechi (1996) 2 SCNJ P…; AG. Cross River State v AG of the Federation (2005) ALL NLR p. 44.

A Court on the other hand has jurisdiction to give consequential orders where necessary. See Usiobaifo & Anor v Usiobaifo & Anor(2005) 1 SCM p. 193; Akinbobola v Plisson Fisko Nig Ltd & 2 Ors (1991) 1 NWLR (Pt. 67) p.286.
A consequential order is an order which gives effect to the judgment. It must flow from the judgment.

After the Court of Appeal examined relevant exhibits to wit: Exhibits 24, 25, 26 and 27, the Court found that the 3rd Respondent/Appellant failed to prove that she ever bid for the Flat and that there was no evidence that no bid by the Appellant was accompanied by a bid bond by way of bank draft equal to 10% of bid value regarded as non-refundable 10% deposit.

This is what the Court of Appeal had to say:
“From the available facts of this

case, the only public bid for the purchase of the Flat in dispute was the one submitted by the appellant and, in the absence of any other higher legal bid for the said Flat, there was no basis for the purported sale of the Flat to the 3rd Respondent whose bid clearly appears to be a sham. The appellant’s bid was even higher and earlier than the 3rd Respondent’s sham bid and the appellant’s bid ought t0 have been designated by the 1st, 2nd and 4th Respondents as the winning bid and the appellant designated as the Winning Bidder.”

It follows naturally that the order by the Court of Appeal that the 1st Respondent/Plaintiff pay the bid amount and other legal charges arises from the fact that the 1st Respondent/ Plaintiff won the bid. The natural sequence is for her to pay up. Hence the order by the Court of Appeal, the consequential order is correct.

ISSUE 5
Whether having regards to the pleading of the parties, the learned Justices’ of the Court of Appeal did not wrongly raise the issue of proof and the burden of proof as it relates to the bid of the Appellant?

Learned counsel for the Appellant submitted that the case of the

Plaintiff/1st Respondent was that she was denied the right of first refusal as a staff and was also denied a right to participate in the bidding exercise. He observed that the conclusion reached by the Court of Appeal that the Appellant did not prove that she ever bid for the house as required by Public Notice No. 2 and that the bid was not accompanied by a bid bond will not find comfort with the case of the Plaintiff/1st Respondent since it was not pleaded.

He submitted that the Court of Appeal was wrong to conclude that the Plaintiff/1st Respondent’s bid was the only Public bid and that the Appellant’s bid was a sham. In further submissions, he submitted that the burden of proof lies on he who asserts and in this case, it is on the Plaintiff/1st Respondent and not on the Appellant. Reliance was placed on Sections 131 (1) and (2) and 132 of the Evidence Act. See Bello v Eweka (1981) 12 NSCC p. 48; Umeojiako v Ezenamuo (1990) 1 NWLR (Pt. 126) p. 253.
He urged this Court to resolve this issue against the Plaintiff/1st Respondent.

Learned counsel for the Plaintiff/1st Respondent argued that with the uncontroverted and admitted evidence

in support of the Statement of Claim, the burden of proof had been discharged. He observed that as at 8 August, 2005 when the Plaintiff/1st Respondent was invited to apply for the House, the house was still available for sale and had not been bidded for or sold. Reference was made to Exhibit 15, dated 8 August, 2005.

He submitted that Exhibit 23 shows that the 2nd and 3rd Respondents acknowledged the bid allegedly submitted by the Plaintiff/1st Respondent, but that the Appellant never tendered any evidence that she actually submitted a bid. He submitted that the burden of proof had shifted to the Appellant to prove that she actually bidded for the house in September 2005.

He submitted that the only evidence of bid for the property was the bid tendered by the 1st Respondent.
He submitted that the bid documents were deliberately kept away because the Appellant never bidded.
Reliance was placed on Section149 (d) of the Evidence Act and George v State (2009) 1 NWLR (Pt. 1122) p.345.

He urged this Court to hold that the Court properly held that the burden of proof has shifted and the Appellant never discharged the burden of

proof, and resolve this, and all the issues in favour of the Plaintiff/1st Respondent.

The question for determination is who had the winning bid for the house. Was it the Appellant or the Plaintiff/1st Respondent? It is well settled that if pleadings are to be of any use, the parties must be held to be bound by them.

The burden is on the Plaintiff to prove his assertions vide Section 131 of the Evidence Act. When the Plaintiff/1st Respondent proves that she bidded for the property and had the higher bid, the burden shifts to the Appellant to prove the contrary that her bid was better. See Section 132 (supra). Akande v Adisa & Anor (2012) 5 SC (Pt. 1) p.; Apena & Anor v Aileru & Anor (2014) 6-7 SC (Pt. III) p. 58; Mbanefo v Molokwu & 6 Ors (2014) 12 SC (Pt. II) p. 137; Aminu & Ors v Hassan & 2 Ors (2014) 1 SC (Pt. 1) p. 1.

The Plaintiff/1st Respondent submitted a bid. See Paragraph 31(d) of the statement of claim. The 2nd and 3rd Respondents in their joint brief averred in paragraph 8(b)(ii) as follows:
“8(b)(ii) That the bid bond of the Plaintiff of N1,010,000.00 was not in accordance with

paragraph 9 of the Public Notice No. 2. That required 10% bid bond of the bid value.”

Whether the Plaintiff/1st Respondent’s bid was valid is not the issue. The issue is whether she submitted a bid and the 2nd and 3rd Respondents who received bids concede to the fact that she bidded for the house. The fact that the Plaintiff/1st Respondent bidded for the house is pleaded.

Exhibit 15 dated 15 August, 2005 written by the 2nd and 3rd Respondents to the Plaintiff/1st Respondent reads in part:
”3. Pursuant to the requirements vis-ä vis career public servants in legitimate occupation of non essential FGN houses in Abuja and your inability to meet said requirements (based on your submitted particulars thereof) we regret to inform you that we cannot accept an expression of interest submission from you in respect of the housing unit referenced in your form.
“4. You are accordingly invited to please bid for this or any available property (as a member of the general public without the benefit of first right of refusal) via an open Auction system in due course.”

The Court of Appeal evaluated evidence and examined exhibits,

particularly Exhibits 22, 23, 24, 25, 26 and 27 and had this to say:
“…. The 3rd Respondent tendered in evidence Exhibits 22, 23, 24, 25, 26 and 27 to prove the Respondents’ allegation that the Flat was duly sold to the 3rd Respondent. I have carefully examined these exhibits ….
It is rather very curious that the bid allegedly submitted by the 3rd Respondent was not put in evidence by any of the Respondents.

The Court of Appeal quite rightly in my view refused to speculate on whether or not the 3rd Respondent (i.e. the Appellant) submitted any bid. I am also satisfied that she neither proved that she bidded for the disputed Flat.

In arriving at the conclusion that the 3rd Respondent’s bid and its date have not been proved, the Court of Appeal reasoned as follows:
” …. The 1st and 2nd Respondents claimed that the 3rd Respondent’s bid for the disputed Flat was N10,000,000.00 (Ten Million Naira) and that it was the winning bid. I have examined the receipts tendered by the 3rd Respondent as Exhibits 24, 25, 26 and 27. Exhibits 24 is a receipt dated 29/10/05 for the sum of N2,000,000.00; Exhibit 26 is dated 12/1/06 and it

is for the sum of N2,000,000.00 and finally Exhibit 27 dated 9/2/06 is for the sum N5,000,000.00. The total amount of money indicated in all the receipts (Exhibits 24, 25, 26 and 27) is N10,000,000.00 which is the total price allegedly offered by the 3rd Respondent.
The payment is Exhibits 24 indicated as non-refundable deposit was paid on 29/10/05 about one month after the 3rd Respondent’s bid was allegedly opened on 30 September, 2005 ……”
The Court then concluded:-
“It is clear therefore, that the non refundable deposit allegedly paid by the 3rd Respondent did not accompany the 3rd Respondent alleged bid. As stated earlier, the 3rd Respondent bid and its date has not been proved in this case …..”
From the available facts …… the only public bid for the purchase of the Flat in dispute was the one submitted by the Appellant (i.e. the Plaintiff/1st Respondent) and, in the absence of any other higher legal bid for the said Flat, there was no basis for the purported sale of the Flat to the 3rd Respondent whose ‘bid’ clearly appears to be a sham.

In the majority judgment delivered by the Court of Appeal, a thorough evaluation

of evidence was done. The conclusion after that exercise was that the only public bid for the purchase of the Flat in dispute was the one submitted by the Plaintiff/1st Respondent and so the sale of the Flat to the 3rd Respondent was wrong, cannot be justified. Accordingly, the final orders made by the Court of Appeal are correct.

Finally I must observe that the Plaintiff/1st Respondent retired from the Civil Service on 15 January, 2004. On 1 November, 2005, while she was still in service, the Federal Government commenced a monetization policy of fringe benefits for civil servants. The policy included the sale of Federal Government houses to those who occupied them, if they so desired. The Plaintiff/1st Respondent signified her intention to purchase the house. The Respondents refused claiming that she was no longer qualified since she had retired from Service. After a while, the Respondents changed their stance and invited the Plaintiff/1st Respondent to bid for the house or any available property (see Exhibit 15 dated 8/8/2005).

The Plaintiff/ 1st Respondent bid was received before the Appellants bid and it was for a higher sum. On the other hand

the Appellant’s bid had serious flaws. It was declared a sham by the Court of Appeal, and I agree with that finding.

I find no merit in this Appeal, it is hereby dismissed. For the avoidance of doubt, I hereby reproduce the declarations and orders of the Court of Appeal which is affirmed by this Court:
1. It is hereby declared that the purported sale of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja to the Appellant is null and void.
2. The Plaintiff/1st Respondent is hereby declared or designated as the Winning Bidder of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.
3. The 2nd and 3rd Respondent are hereby ordered to restore possession of Flat 3 Block D44, Zone D Extension, Apo Legislative Quarters Abuja to the Plaintiff/1st Respondent and ensure that she is not harassed or intimidated and she enjoys peaceful enjoyment of the said property.
4. The Plaintiff/1st Respondent is hereby ordered to pay the bid amount of N10,100,000.00 (Ten Million, One Hundred Thousand Naira) and other legal charges in respect of the said Flat within 90 days from today.
No order on costs.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Olabode Rhodes-Vivour JSC and to register the support I have in the reasonings from which the decision came about, I shall make some remarks.

This is an appeal against the majority decision of the Court of Appeal, Abuja Division, Coram: Abubakar Dattj Yahaya, Moore A. Adumein and Joseph Tine Tur J.C.A. which judgment was delivered.

The Gazette which was published on 14th March, 2005 (See Exhibit FA08) by the admission of the plaintiff/1st respondent, has the implementation date of September 2005 for the “monetization policy” while plaintiff retired on 15th January, 2005.

Plaintiff’s claim before the trial Court was that she was entitled to a right of first refusal under the “monetization policy” but that the 2nd and 3rd respondents wrongly decided that she was not qualified to exercise that right, as she was no longer a career civil servant but a retiree.

It was equally the complaint of the plaintiff/1st respondent that she was not given a fair consideration by the 2nd and 3rd respondents in the bid that took

place in September and November 2005 and that the bidding exercise conducted by 2nd and 3rd respondents was in violation of the approved guidelines of the Federal Government monetization policy.

The Plaintiff/1st Respondent claimed the following:-
“1. A declaration that the plaintiff is a beneficiary of the monetization policy of the Federal Government of Nigeria having been in service as at the time the policy took effect.
2. A declaration that the plaintiff has an accrued right as a result of her being in active service when the monetization policy began.
3. An order directing the 1st and 2nd defendants to give the plaintiff the opportunity to exercise her right of first refusal in respect of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.
IN THE ALTERNATIVE
4. A declaration that the plaintiff was entitled to be given fair consideration in the bidding exercise carried out by the 1st and 2nd defendants in September and November 2005, the plaintiff having submitted the expression form in respect of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja for the said bidding exercise.

A declaration that the non-consideration of the plaintiff in the said public bidding before awarding the said flat to the 3rd defendant is null and void.
6. A declaration that the purported sale of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja to the 3rd defendant is null and void.
7. An order restraining the 1st, 2nd and 3rd defendants, their privies, agents, servants, employees or anybody deriving authority from them from disturbing, ejecting, evicting, dispossessing, quitting, forcefully revolving, harassing and or intimidating the plaintiff from peacefully enjoyment of the said property until she so exercises her rights.
8. And for such further order or other orders as the plaintiff may be entitled to under the law and constitution.”

The originating process that initiated the entire claim of the plaintiff in this case, the statement of claim was signed “for Chief A.S. Awomolo SAN” of AWOMOLO, OTARU & CO. by an unknown person.

At the close of the trial, the learned trial judge dismissed the plaintiffs claim for lack of merit and aggrieved the plaintiff/1st respondent

appealed to the Court below which allowed the appeal on a majority decision and the appellant dissatisfied has approached the Supreme Court on appeal.

On the 16th day of December, 2019, date of hearing, learned counsel for the appellant and appellant being absent, the amended brief of argument filed on 18/11/17 and deemed filed on 26/6/18 was taken as argued by the Court since there was proof of service.

In the brief were distilled seven (7) issues for determination which are thus:-
ISSUES FOR DETERMINATION:
1. Whether the Court of Appeal had jurisdiction to entertain the appeal before it given the parties and the claim of plaintiff/1st respondent before the High Court of the Federal Capital Territory? (Ground 1).
2. Whether the provisions of Public Officers Protection Act will not render the plaintiff/1st respondent’s claim before the High Court of Federal Capital Territory incompetent and in turn rob the Court of Appeal of jurisdiction to entertain the appeal and deliver judgment in favour of plaintiff/1st respondent? (Ground 2).
3. Whether the Court of Appeal had jurisdiction to entertain the appeal before it

having regard to the incompetent originating process i.e. the statement of claim, filed before the trial Court and signed by an unknown person for plaintiffs’ counsel? (Ground 3).
4. Whether the Court of Appeal had the jurisdiction in the circumstance to grant reliefs that are contrary to the claim of plaintiff/1st respondent and/or reliefs not sought in the statement of claim? (Ground 4).
5. Whether the conclusion and decision of the Lower Court of Appeal that plaintiff/1st respondent’s bid is the only public bid and that the bid of the appellant was a sham is not contrary to the plaintiff/1st respondent’s pleadings before the Court? (Ground 5).
6. Whether having regard to the pleading of the parties, the learned justices of the Court of Appeal did not wrongly raise the issue of proof and the burden of proof as it relates to the bid of the appellant? (Ground 6)
7. Whether the Court of Appeal was not wrong in giving judgment for the plaintiff/1st respondent after a reopening and reappraisal of the evidence? (Grounds 7, 8, 9, 10 and 11).

Learned counsel for the 1st respondent, Eyitayo Fatogun Esq., adopted the amended brief

of the 1st respondent filed on 7/4/17 and deemed filed on 10/4/17 and in it formulated a single issue, viz:-
Whether the Court below correctly exercised its duty and powers to review and evaluate the evidence of parties in arriving at its decision.

Learned counsel for the 2nd and 3rd respondents, Eyitayo Anieh adopted the brief of argument settled by P. E. Ediale Esq., filed on 13/12/19 and deemed filed on 16/12/19. In the brief were raised two issues for determination which are thus:-
1. Whether the irregularity in not stating the name of the legal practitioner who settled the 1st respondent’s statement of claim for A. S. Awomolo SAN renders the said statement of claim invalid and incompetent.
2. Whether the majority judgment of the Court of Appeal was right when it held that the 1st appellant’s bid was a sham and that the 1st respondent’s bid was preferable to that of the appellant.

I shall make use of the sole issue as crafted by the 1st respondent as it is apt and all embracing.

SOLE ISSUE:
Whether the Court below correctly exercised its duty and powers to review and evaluate the evidence of parties in arriving at its decision?

Learned counsel for the appellant contended that from the parties and the claim before the Court of trial, the High Court of the Federal Capital Territory had no jurisdiction to adjudicate over the claim of the plaintiff and so the lower Court was also without jurisdiction to entertain the appeal before it. He cited Tukur v Government of Gongola State (2) (1989) 4 NWLR (Pt. 117) 517; Ohakim v Agbaso (2010) 19 NWLR (Pt. 1226) 172 at 217, Section 251 (1) (p) and (r) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) etc.

That Section 2 (a) of the Public Officers Protection Act applied to render the action statute barred as the action should have been instituted by February 2006 and not thereafter and so when plaintiff/1st respondent commenced the action on 27th April, 2006, the plaintiff had already lost her right of action. He relied on Egbe v Adefarasin (1987) 1 NWLR (Pt. 47) 1; Ibrahim v Lawal (2015) 17 NWLR (Pt. 1489) 490 at 522.

It was stated further for the appellant that the originating summons was incompetent as it was signed by ran unknown person. He relied on Ohakim v Agbaso (2010)

19 NWLR (pt. 1226) 172 at 216 etc.

That the Court went outside the reliefs sought by the plaintiff in the grant of reliefs in its judgment which the law does not allow. He cited Adetoun Oladeji (Nig.) Ltd. v N.B. Plc (2007) 5 NWLR (Pt. 1027) 415 at 438 – 439; Okoya v Santilli (1994) 4 NWLR (Pt.338) 256 at 303.

Learned counsel for the appellant said the plaintiff had not discharged the onus of proof of establishing her claim and so the case remained not proved. He cited Umeojiako v Ezenamuo (1990) 1 NWLR (Pt. 126) 253 at 267 etc.

That the Court of Appeal went outside the confines of the complaint contained in the Ground of Appeal to review the evidence led. He cited Chief Ebba v Chief Ogodo & Anor. (1984) 4 SC 84 at 122.

Learned counsel for the 1st respondent contended that where the evaluation of evidence by the lower Court is limited to the consideration of the content of documents and did not include ascription of probative value to evidence or the demeanour of the witnesses, which is a matter for the trial judge who saw and heard those witnesses giving evidence, such evaluation is lawful and warranted by appellate

Court. He cited Bunge v Governor of Rivers State (2004) 12 NWLR (Pt. 995) 573.

That the Court below was not permitted to close its eyes to the miscarriage of justice caused by the error of the trial Court who had neglected to examine the documentary evidence of parties equally. He cited Salako v Dosunmu (1997) 8 NWLR (Pt. 517) 394.

Learned counsel for the 2nd and 3rd respondents contended that the statement of claim is caught by the ratio decidendi espoused in the case of Oliyide & Sons Ltd. v Obafemi Awolowo University (2019) All FWLR (Pt. 975) 746 at 760 – 766. That it was not A.S. Awomolo SAN who signed the statement of claim. That the signature without the name of the maker is incurably defective. He relied on SLB Consortium Ltd. v NNPC (2011) 9 NWLR (Pt. 1252) 317; Ewukoya v Buari & 2 Ors. (2017) All FWLR (Pt. 881) 1099 at 1114 – 1115.

That the Court should set aside the judgment of the Court below and restore that of the trial Court. The posture of the 2nd and 3rd respondent is strange in the light of the absence of a cross-appeal by them and so goes to no issue.

The learned trial Judge concluded his Judgment in these words:
“To this end, the plaintiffs reliance on Exhibit 10, which is the 1st and 2nd defendants letter to the plaintiff dated 29th October, 2005, as being a letter of Offer to the Plaintiff on the said property cannot hold water. As at 29th October, 2005, when the letter was written, the property was already bidded for and won by the 3rd defendant …… And the 3rd defendant paid for the property as reflected on Exhibits 24, 25, 26 and 27 which are receipts of payment in the sum of N1m, N3m, N2m, and N5m respectively please see page 405 …….
In the same vein, as at the time the plaintiff bidded for the property, the subject matter of this suit, the property was bidded and won by the 3rd defendant who thereafter proceeded to make full payment. Therefore, the sale of the said property by the 1st and 2nd defendants to the 1st defendant is valid and subsisting.”
On appeal, the Court below stated as follows:-
“The evidence in this case is substantially documentary. The importance of documentary evidence cannot be over-emphasized as documentary evidence can easily be used as a hanger to resolve on issue on which parties have tendered conflicting evidence. ”

The Court of Appeal also found that:
“a thorough reading of the said judgment reveals that the evaluation carried out by the trial Court was rather scanty and not based on the totality of the evidence before the Court. The evaluation also appears to have completely ignored evidence on the appellants claims 1 and 2 of the monetization police of the Federal Government of Nigeria and her alternative claims numbers 4, 5, 6, 7 and 8.”
The Court below also found as a fact that:
“the trial Court did not evaluate the evidence based on all the issues or claims before it. The lower Court erroneously confined its evaluation to the issue of claim relating to Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja in the issue of vested right only, and even in doing so, the evaluation did not take into consideration all the facts, circumstances and documentary evidence of the case.”

The Court below was not hesitant in having some reservations on the evaluation of the trial Court of the evidence before it and that there had been lapses thereat which ought to be corrected at the appellate state. At this point,

one is guided by the fact that as much as the appellate Court seised of all the evidence in the record is to review what had been done at the Court of first instance but needs be guided especially as it cannot compete with the trial Court when the issue of credibility of the witnesses is to be considered since that exclusive position resides with the trial Court alone as the trial judge is the only judex with the opportunity of seeing the witnesses and so in the position to assess the demeanour. However, some ground rules have been laid down by this Court on the way forward on appeal.
In the case of Bunge v Governor, Rivers State (2006) 12 NWLR (Pt. 995) 573, the Apex Court stated the law succinctly thus:
“The need to ensure that justice is not miscarried should always dominate the attitude and thinking of appellate Courts when dealing with appeals arising from questions of fact …. It will be completely invidious to suggest that a Court of Appeal should not intervene and do what justice requires but should abdicate its own responsibility and rubberstamp an error however glaring. Thus, in a case where there is no question of the credibility of any

witness and in cases where the point in dispute is the proper inference from proven facts, an appeal Court is generally in a good position to evaluate the evidence as the trial Court and ought not to shrink from that task, though it ought to give weigh to it.”
This Court in Salako v Dosunmu (1997) 8 NWLR (Pt. 517) restated the law as guide to all lower Courts in these words:
“the trial Court must endeavour to appraise and evaluate evidence adduced before it both oral and documentary in the determination of any dispute. Where the trial Court fails to do so, the appellate Court has a duty to do so, and where as a result of such exercise it finds that the findings of the trial Court are perverse resulting from drawing wrong conclusions from the accepted evidence or proved facts or due to a wrong approach in the determination of these facts in a manner in which these facts cannot and do not support, it would reassess and evaluate the evidence in the order to come out with a just decision, even if it is different from that of the trial Court.”

As I said earlier, the Courts in the determination of issues in controversy between the contending parties

must look at and consider all evidence placed before the Court both oral and documentary and the Court would then match its findings with evidence tying each to credible evidence. What can be seen from what the Court of Appeal did is that on examining the totality of the evidence before it stated its findings to be as follows:-
1. That the Public Notice No. 2, contained in the Federal Republic of Nigeria Official Gazette No. 82, Vol. 92 and paragraph 9 in particular, that the flat or house in dispute was not covered by the public notice.
2. The Court found from Exhibits 24 and 27 indicated that the alleged non-refundable deposit, allegedly paid by appellant on 29/10/2005 a date, one month after the alleged opening of her bid, when the guideline required that a valid bit must be accompanied by proof of the payment of the non refundable deposed. This was falsehood and deception promoted by all the defendants including the appellant.
3. That none of the defendants including the appellant proved by any shred of evidence throughout the trial that she bidded for the property in dispute as required by the official Gazette No. 82, Vol. 92.

That facts contained in a document cannot be proved by oral evidence. The bid document being a public document cannot be proved by oral evidence and was therefore not proved at the trial.
5. The Court found as a fact that the only public bid for the purchase of the flat in dispute was the one submitted by the 1st respondent, in response to the 2nd and 3rd respondent letter dated 29/10/2005 Exhibit 10.
6. That there was no basis for the holding as valid the purported sale through bid on the flat to the appellant.
7. That the 1st respondent, from the documentary evidence before the trial judge proved her case on the balance of probabilities as the person who made valid bit for the property in dispute.

The learned Justices of the Court below held that:
“the trial judge failed to adequately evaluate the evidence tendered by the parties and he failed to arrive at the right conclusion based on the evidence before him.”

The Court below had gone on in its judgment to hold thus:- “It is hereby declared that the plaintiff/appellant was entitled to be given fair consideration in the bidding exercise in respect of Flat

3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja. On the ground that the 1st respondent was not a public officer at the relevant time, in that the property in dispute had been sold at public auction on the 30th day of September, 2005. No valid contract.”

The appellant took umbrage on that declaration by the Court of Appeal stating that the Court below erred. This stance by the appellant is difficult to go along with since there was no support for the stance from either the pleading or the evidence adduced by the appellant. Rather it is the documents referenced and tendered by the respondents that were available and supportive of the case of the 1st respondent.

In this regard, I agree with learned counsel for the 1st respondent that reference to Exhibit 17, is unfounded by reason of the 2nd and 3rd respondents letter to the 1st respondent that even, as at 29th day of October, 2015, the flat in dispute was still available for purchase and the 1st respondent was given option of bidding for the same through Exhibit 10. (Underlining for emphasis).

The letter showed that the claim that the property had been sold since

September 2005 was false. Exhibit 24 receipt for payment of N1,000,000 was dated 28/10/2005, Exhibit 25 was dated 28/11/2005, Exhibit 26 was dated 12/1/2006, Exhibit 27 was dated 09/02/2006, all of which show that the defence of the appellant, 2nd and 3rd respondents were falsehood and exposed by the Court of Appeal because the learned trial judge overlooked it, perhaps inadvertently.

With respect, the Court below made another profound finding i.e. that “from the available facts of this case, the only public bid for the purchase of the flat in dispute was the one submitted by the appellant (1st respondent) and in the absence of any other higher legal bid on the fore said flat, there was no basis for the purported sale of the flat to the 3rd respondent bid clearly appearing to be a sham and the appellant’s bid was even higher and earlier than the 3rd respondent’s sham bid…”

Again, to be noted is that the appellant in the Amended brief of argument referred to Exhibit 15 to the effect that the 1st respondent applied for the property as a ‘public servant’ and not as a political office holder nor a member of the general public. Interestingly, this

aspect put up in the appellant’s brief was neither raised at the lower Court nor at the judgment and so cannot be brought in here being a fresh issue that cannot be herein entertained without prior leave of Court. It therefore comes within the sphere of hot air and no more. See Alhaji Martins v COP (2012) 12 SC Pt. 1; Co-operative & Commerce Bank Plc & Anor v Ekperi (2007) 1 SC (pt. 11).

Also that posture of the appellant going to no issue is seen when considered with the letter written by the 2nd and 3rd respondents of 8th August 2005 thus:-
‘3. Pursuant to the requirements vis-a-vis career public servants in legitimate occupation of non-essential FGN houses in Abuja and your inability to meet said requirements (based on your submitted particulars thereof) we regret to inform you that we cannot accept an expression of interest submission from you in respect of the housing unit referenced in your form.
4. You are accordingly invited to please bid for this or any available property (as a member of the general public without the benefit of first right of refusal) via an open auction system in due course.’

Indeed, the best form of evidence is documentary evidence and a document which is tendered in Court is the best proof of the contents of such document. We refer to Igeke v Joy Emordi (2010) 11 NWLR (Pt. 1202) at 1, particularly at 35 – 36., A.G., Bendel State v UBA Ltd. (1986) 4 NWLR (Pt. 27) at 547. The said letter dated 8th August, 2005, categorically stated that the house was available as at the 8th of August, 2005 and had not been sold.

Also from the letter, the 1st respondent was invited to bid for the property as there was no encumbrance on the property as at the 8th of August, 2005.

From the content of the letter dated 8th August, 2005, there was no valid bid on the property.

Again to note is that there was no letter withdrawing the letter of 8th August, 2005 which held out the house by the landlord as being free. The appellant sought to project the 1st respondent as being aware of the purported sale to the appellant by letter dated 31st October, 2005 (Exhibit 20), in Exhibit 23, the 2nd and 3rd respondents appear to acknowledge the bid allegedly submitted by the appellant and which bid was allegedly opened on the 30th of September, 2005. However,

the appellant never tendered any evidence that she actually submitted a bid despite the fact that it would cleared some points in dispute.

This calls to question my Lords, the certainty or accuracy of whether the appellant actually bidding in the first place or the date which was never pleaded. The Court of Appeal was very eloquent and categorical in the judgment on this issue.
“It seems to me from the first sentence of paragraph 9 of public notice No. 2, that the paragraph governs ‘house occupied by political office holders’ and not the house or flat in dispute which was occupied by a career public servant. In any case, the purported ‘winner’ of the house in dispute the 3rd respondent has not proved that she ever bid for the house as required by paragraph 9 of public notice No. 2. Apart from failing to prove that, she ever bid for the flat there is no evidence that ‘any purported bid by the 3rd respondent was accompanied ‘by a bid bond by way of bank draft … equal to ten percent of bid value regarded as non-refundable 10 percent deposit.”

What I see as what the appellant is pushing out is for this Court to utilise some speculatory

angles in her favour as the documents appellant was referring to were not brought before Court leading to the conclusion that that was deliberately kept away or actually that appellant did not bid as claimed. I refer to the following cases relevant to the case in hand. See The People of Lagos State v Umaru (2014) LPELR-22466 (SC), this Court held thus:-
“I shall now consider Section 149 (d) of the Evidence Act, that is, on withholding of evidence. I have already set out the provision of this paragraph earlier. What paragraph (d) of Section 149 of the Evidence Act stipulates is that where a party claims to have evidence that goes to show the existence of a document in proof of his case, the document should be tendered. Where such evidence could be produced but it is not produced, it is presumed to be against the interest o the party withholding it.”
Also, in George v The State (2009) 1 NWLR (Pt. 1122) at 345 where the Court held thus:-
“By virtue of Section 149 (d) of the Evidence Act, where there is any evidence which is available but not produced in Court, it is presumed in law that the evidence, if produced, would be against the party that has failed to produce it.”

Finally to Aremu v Adetoro (2007) 16 NWLR (Pt. 1060) at 261 where this Court held as follows:
“A Court of law can invoke Section 149 (d) of the Evidence Act that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it.”

The appellant had urged the Court to strike out the appeal as the action instituted by the plaintiff/1st respondent was statute barred having been commenced beyond the three months stipulated in the Public Officers Protection Act for the inception of action from the date of accrual of the cause of action. Indeed, the plaintiff by his admission, averred that the cause of action, the exclusion of her name was done between September and November of 2005 and she instituted the action on 27th April, 2006.

If the Court were to go with this argument of the appellant, it would lead to the decision that the Court of trial acted without jurisdiction when it entertained and determined the action so instituted by the 1st respondent who came before it as an aggrieved plaintiff.

To clarify what is on ground, I shall refer to a summary of the complaint of

plaintiff/1st respondent captured in paragraphs 40 (a), (b), (c) and (d) and the main reliefs against the Federal Government and its agencies thus:-
i. The first relief is declaratory, the subject is the monetization policy of the Federal Government and its applicability to plaintiff. No doubt it is the 1st and 2nd defendants that decided against plaintiff.
ii. Relief 2 is about “accrued right” under the monetization policy. No doubt it was the 1st and 2nd defendants agencies of Federal Government that decided against the plaintiff.
iii. Relief 3 is clearly an order against the 1st and 2nd defendants (both agencies of Federal Government in respect of refusal to allow plaintiff opportunity to exercise “right of first refusal” in respect of flat 3 block D44 Zone D Extension, Apo Legislative Quarters, Abuja.

Reliefs 4, 5, 6, 7, and 8 are by the plaintiffs own admission ALTERNATIVE RELIEFS. They are not therefore principal or main reliefs. However, despite this admission –
iv. Relief 4 is a complaint against refusal by 1st and 2nd defendants to give plaintiff “fair consideration” in the bidding exercise (a clear administrative

and executive action by Federal Government). It was a relief targeted against Agencies of Federal Government.
v. Relief 5 is a direct challenge of the decision of 1st and 2nd defendants “before” awarding the said flat to 3rd defendant.
vi. Relief 6 is a challenge to the sale carried out by the 1st and 2nd defendants and consequential and/or ancillary to the grant of the Principal and Main reliefs.
vii. Relief 7 is also consequential and ancillary relief against all defendants.

It follows that the appellant has anchored his grouse and perceived advantage on the operation of Section 2 (a) of the Public Officers Protection Act.
Now the provision of Section 2 (a) of the Public Officers Protection Act reads:
“Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any act or law or any public duty or default in the execution of any act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any of such act, law, duty or authority, the following provisions shall have effect:

(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in case of a continuance of damage or injury within three months after the ceasing thereof.”
If the submissions of the appellant are to hold sway to persuading the Court to take the decision that the action is statute barred having been commenced clearly beyond the happening of the event that brought about the grouse of the plaintiff. In this, the Supreme Court had made a lot of pronouncement some of which I shall quote as follows:-
In Egbe v Adefarasin (1987) 1 NWLR (Pt. 47) p. 1 was followed in the case of Ibrahim v Lawal (2015) 17 NWLR (Pt. 1489) p. 490 at 522, Para G, per Okoro J.S.C.:
“Let me add that in order to determine the period of limitation, one has to look at the writ of summons and the statement of claim to see when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. This in my view can be done without taking oral evidence from witnesses. If the time on the writ is beyond the

period allowed by the limitation law, then the action is statute barred. See Egbe v Adefarasin & Anor (supra).”
My learned brother, Okoro J.S.C. had gone further in Ibrahim v Lawal (supra) at page 523 to state as follows:- “The effect of the Public Officers Protection Act like any other statutes of limitation is to deprive the Court of jurisdiction to entertain an action filed outside the time limit prescribed in the statute ………. Let me state again for the umpteenth time that where a law prescribed a period for instituting an action, proceedings cannot be instituted after that period. Also where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period laid down by the limitation law for instituting such an action has elapsed and the right to commence the action would have been extinguished by law.”
His Lordship relied on the cases of Ekeogu v Aliri (Pt. 90) 1 NWLR (Pt. 126) 345; Ajayi v Adebiyi (2012) 11 NWLR (Pt. 1310) 137 at 172, Emiator v Nigerian Army (1999) 12 NWLR (Pt. 631) 362, Ibrahim v J.S.C. Kaduna (1998) 15 NWLR

(Pt. 854) 1, Egbe v Adefarasin (1987) 1 NWLR (pt. 47) 1.
Rhodes-Vivour J.S.C. in Ibrahim v Lawal (supra) puts it thus:
“The plaintiff must seek prompt action for breach of his rights within the stipulated time. If he fails to bring his action within three months, he has a cause of action but one that cannot be heard by the Courts anymore as the Courts would have no jurisdiction over such claim after three months has elapsed. See Olagunju & Anor. v PHCN (2011) J.S.C. (pt.1) pg. 152, (2011) 10 NWLR (Pt. 1254) 113.”
However, the principles which my learned brothers has restated are for other matters, certainly not for the current one which has to do with transaction on recovery or premises and title to land and breach of contract which are exceptions to the operation of the Public Officers Protection Act when the officers operate within their administrative competence. Therefore, the proposition for the action to be statute barred with the attendant ousting of the jurisdiction of the trial Court does not apply.

Indeed, from the foregoing, I am at one with the findings and conclusion in the majority decision of the Court of Appeal which are

summarised thus:-
1) The 1st Respondent was entitled to be given fair consideration in the bidding exercise in respect of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.
2) The only public bid for the purchase of the flat in dispute to wit: Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja, was the one submitted by the 1st respondent and since there was no higher bid, there was no basis for the prompted sale of the flat to the appellant.
3) The Court of appeal was right in arriving at the conclusion that the evaluation of facts and evidence before the learned trial Judge was rather scanty and not based on the totality of the evidence before the Court.
4) There was no basis for holding as valid the purported sale of the flat in dispute to wit: Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja since the 1st respondent had validly bidded and won the bid.

In conclusion from the foregoing, this appeal lacks merit and I dismiss it.
I abide by the consequential orders made.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading before now the

draft of the leading judgment which my Lord, Rhodes-Vivour, J.S.C., just delivered. I agree with His Lordship that this appeal, being unmeritorious, deserves to be dismissed.
Appeal dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had read the lead judgment just delivered by my learned brother, Bode Rhodes-Vivour, J.S.C.. He dealt with all the issues raised decisively, and I will simply adopt his reasoning as mine and hereby dismiss the Appeal.

EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered by my learned brother, OLABODE RHODES-VIVOUR, JSC and I am in agreement with him on all the issues resolved therein.

I need only to make a few comments in support. A Statement of Claim is not an originating process. It is a process filed subsequent to the Writ of Summons. In the Statement of Claim, the claimant or plaintiff articulates the allegations of facts for the defendant to answer. Without the Statement of Claim, there would be no allegation of facts for the defendant to answer. Thus, issues cannot be joined on any matters and therefore nothing for the Court to try: Fidelis Nwadialo: Civil Procedure in Nigeria, 2nd Ed. Page 442.

A defect in the Statement of Claim results not in the striking out of the suit for being a nullity. Rather, it is only the offensive Statement of Claim, as a process or the part or portion thereof of the process that the defendant timeously takes steps to strike out. A defect in the settlement of the Statement of Claim or the Statement of Claim itself is generally regarded as a mere irregularity. The authors of the Supreme Court Practice 1979 [The White Book 1979 – English] opined in paragraph 18/9/1 at page 311 thereof and I agree “that every pleading which offend the rules will be struck out. The applicant must show that he is in some way prejudiced by the Irregularity”.
They further opined in paragraph 18/9/2 ibid –
Where the Statement of Claim is being attacked, the application may be made before the defence is served [A – G of DUCHY OF LANCASTER V.L. and N.W.L.R. (1892) 2 Ch. 274].
In other words, the objection must be made timeously before the defence is served; otherwise, the objection is deemed to have been waived or compromised.
In the instant case, the point of the Statement of

Claim being defective, having been settled by an unknown proxy of Chief A.S. Awomolo, SAN, is being raised for the first time in this second tier appeal. The Appellant, on this issue, is caught by the doctrine of estoppel by conduct, which in Section 169 of the Evidence Act, 2011 is provided thus –
When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.
I should think it is now inequitable and unjust to the plaintiff/1st Respondent for this Court to accede to this belated objection; the Appellant having waived his right of timeous objection to the irregular Statement of Claim. Delay defeats equity.
All the defendants; including the Appellant, at pages 245 – 249 and 262 – 265 of the Record filed their respective Statements of Defence wherein they joined issues on the

substance of the dispute with the plaintiff/1st Respondent. Evidence at the trial was called on the pleadings. The trial Court delivered judgment on the evidence based on the pleadings. The Appellant finding no cause to challenge the statement of Claim remained mute both at the trial Court and the lower Court. He has clearly waived his right of objection to the irregular process. As I stated in HERITAGE BANK LTD v. BENWORTH FINANCE (NIG) LTD – SC 175/2015; the Appellant having waived his right of objection cannot now be heard to belatedly raise the objection at the apex Court. Equity helps the vigilante and not the indolent. Delay, I repeat, defeats equity. It is now unconscionable to allow the Appellant succeed on this issue; the Appellant having slept too long on his right to timeously object to the irregular Statement of Claim. Doing so now will be pandering to undue arcane technicality at the expense of substantial justice which in turn will inflict grave injustice to the plaintiff/1st Respondent. This is a Court of justice. It does justice evenly to the parties before it, and will not allow a party dole out injustice to the other.

The appeal, as I adopt the judgment just delivered by my learned brother, OLABODE RHODES-VIVOUR, J.S.C., including all orders made therein, is hereby dismissed in its entirety.
Appeal dismissed.

Appearances:

No Appearance for the Appellant. For Appellant(s)

Eyitayo Fatogun, Esq., with him, Loyd I. Ekweremadu, Esq., for the 1st Respondent.

Dickson Anieh, Esq., with him, U. J. Enweazu, Esq., for the 2nd and 3rd Respondents.

4th Respondent is absent.For Respondent(s)