FELIX EJIOGU v. CHRISTIAN AMAJIOYI NWAUZOAGBA & ORS
(2018)LCN/12435(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of May, 2018
CA/PH/215/1999
RATIO
COURT AND PROCEDURE: WHETHER CAN INTERPRET WHAT IS PLAIN CLEAR AND OBVIOUS
“I do not think a Court can be called upon to interpret what is plain, clear and obvious. See Afribank Nig. Plc and Ors Vs Emori (2013) LPELR 21137 CA: the position Courts has always been that in the construction or interpretation of the Constitution, or a statute, where the words are plain, clear and unambiguous, effect would be given to them in their ordinary and natural meaning, except where to do so, will result in absurdity. See Lawal Vs G.B. Ollivant (1972) 3 SC 124 at 127; Toriola Vs Williams (1982) 7 SC 27; Sunmonu Vs Oladokun (1996) 8 NWLR (Pt. 467) 387; Nnonye Vs Anyichie (2005) 1 SCNJ 306
See also NNPC Vs Aminu (2013) LPELR 21396 CA; (2014) ALL FWLR (Pt. 726) 527: “I think the Court can only be called upon to interpret the content of a document, where there is conflict in the understanding of the Agreement by the parties on it.'” PER ITA GEORGE MBABA, J.C.A.
COURT AND PROCEDURE: WHETHER THE COURT CAN ENGAGE IN ACADEMIC PURSUIT
“That would be engaging in academic pursuit in my opinion. See the case of Dibiagwu Vs Uzonwanne & Ors (2017) LPELR 43074 CA, where this Court said: A Case or Appeal is said to be an academic exercise, when it would bring no benefit to any party, except, perhaps, the sensual/mental satisfaction to the party who brought it, where there is no live issue in the litigation/Claim; that is, where what is presented to the Court for a decision (and if decided) cannot affect the parties thereto in anyway, either because the fundamental nature of the reliefs sought has changed or there is a changed circumstance, since after the litigation, such that in the end, the case or the appeal has become academic at the time it is due for hearing. See Labour Party Vs Bello & Ors (2016) LPELR 40848 CA; Eric Uchegbu & Anor. Vs Pastor Mgbeahuroike & Ors (2017) LPELR 41683 CA; A.G. Federation Vs ANPP (2004) LRCN 2671; Odedo Vs INEC (2008) 17 NWLR (Pt.1117) 554.” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
FELIX EJIOGU Appellant(s)
AND
1. CHRISTIAN AMAJIOYI NWAUZOAGBA
2. GABRIEL AMAJIOYI NWAUZOAGBA
3. JOHN AMAJIOYI NWAUZOAGBA –
4. SYLVESTER ONYEJEKWE NWAUZOAGBA
5. PAUL NWACHUKWU NWAUZOAGBA Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of Imo State High Court in Suit No. HME/1/98, delivered on 4/6/98 by Hon. Justice Ngozi Opara, whereof the Plaintiff’s Application was dismissed with N1000.00 cost, for want of jurisdiction.
At the trial Court, the Plaintiff (now Appellant) by originating summons, sought answer to the following questions:
(a) Whether the Order of Hon. Justice I.C.K. Pats – Acholonu (as he then was) made on 22nd March, 1990 in Suit No. HME/37/83 between the parties in the following words ‘the case is hereby dismissed on the grounds that the action is misconceived and there is no lis inter parties’ awarded any res to the Defendants or created any status between the two sides, and if so what the res or status was.
(b) If the answer to (a) above is in the negative, whether this honorable Court would not be right to restrain the Defendants jointly or severally, from in anyway behaving towards the Plaintiff or the whole world, as if the said order awarded any res or judgment in the said Suit to them.? (See page 1 of the Records of Appeal).
The Respondent (as Defendants) had entered a conditional appearance in the Suit and filed a preliminary objection, stating that the trial Court had no jurisdiction to entertain the Suit, as the action and/or claim, as constituted, was incompetent.
Arguments were taken in respect of the preliminary objection at the end of which the preliminary objection was upheld and the Appellant’s Suit dismissed. The trial Court said:
‘If the Honourable Court has no jurisdiction to look into this instant matter, which is on dispute touching and concerning land in a rural area, and I hold, I do not possess the requisite jurisdiction, can I then turn around to venture into the interpretation of any order made therein.’ The answer, I am afraid is in the negative. The net result is that this preliminary objection is upheld. The original application by the Plaintiff/Applicant/Respondent is hereby dismissed with N1,000.00 costs.’ See page 20 of the Records.
Dissatisfied with the above, Appellant filed Notice of this Appeal on 11/8/98 (pages 21 to 24 of the Records of Appeal).
He filed his Brief on 14/5/2002 and a Reply brief 3/7/2002. He distilled three (3) Issues for the determination of the Appeal as follows:
(1) Whether the High Court presided over by Hon. Justice Opara was right to hold that it had no jurisdiction to interpret the Order (Exhibit A) made by the same High Court, presided over by Hon. Justice L.C.K Pats – Acholonu J. (as he then was) in Suit No. HME/37/83, on the ground that the order concerned land in a rural area which was within the exclusive jurisdiction of the Customary Court as decided by the Supreme Court in Oyeniran Vs Egbetola (1997) 5 NWLR (Pt. 504) 112 at 124.
(2) Whether the Appellant’s originating summons possessed any inherent jurisdictional incapacity that could prevent the High Court from interpreting the said Order (Exhibit A) and making in favour of the Appellant the order of injunction prayed for against the Respondents.
(3) Whether an order striking out the Appellant?s originating summons was not the more appropriate order to have been made by the Court below rather than an order dismissing it, when it had held that it had no jurisdiction to entertain it.
The Respondents filed their brief on 25/6/2002 and distilled four (4) Issues for the determination of the Appeal, as follows:
(1) Whether the Appellant’s Suit HME/1/98 constitutes a flagrant abuse of the process of the Court from which this appeal emanates, vis a vis, his Suit HME/37/83.
(2) Whether the failure by Appellant to obey the lower Courts order to pay costs to the Respondents, assessed at N40 in HME/37/83 and to pay costs assessed at N1000.00 to the Respondents in HME/1/98, makes him a contemnor.
(3) Whether the Appellant has satisfied the conditions under which this Court can set aside the concurrent findings of two Lower Courts.
(4) Whether this appeal is a victim of procedural irregularity and improprieties.
Appellant did not relate the three issues to the grounds of the Appeal. But it can be seen that he formulated three grounds of appeal, and that, on the face of process, the Issue one related to the ground one, and Issue 3 to the ground 2. Appellant’s issue 2 did not relate to any ground as his 3rd ground of appeal was: ?the Court?s Order of N1000.00 cost against, Plaintiff was excessive in the circumstances.
The Respondents’ issues too had no bearing with the grounds of the appeal.
Parties are always advised to endeavor to relate their issues for determination of appeal to the grounds of appeal as failure to do so amounts to overloading the Court and can be injurious to the appeal, where the appellate Court is not supplied the necessary materials to work with, that is credible ground(s) of appeal and competent issue(s) for determination of the Appeal, distilled from the grounds, and duly related to and flowing from grounds. See the case of Diamond Bank Plc Vs HRH Eze (Dr.) Peter Opara & Ors (2018) LPELR 43907 (SC), where the Supreme held, adopting the position in UBN LTD VS ODUSOTE BOOK STORES LTD (1995) NWLR (Pt. 421) at 563:
‘While it is true that the rules as regards filing of brief of argument do not specifically state that Counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, it is highly desirable that that should be done. This will assist the appellate Court tremendously in relating arguments on the issues to the grounds of appeal they are related, thus serving the time of the Court and enhancing quick disposal of the appeal.’
From the above, it is crystal clear that the rules do not specifically state that Counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, therefore failure to do that is mere inelegance which cannot render the issue or issues void. See also Nigerian Ports Plc Vs BP PTE LTD (2012) 8 NWLR (Pt. 454) 480; Hanseatic International Ltd Vs Usang (2002) 13 NWLR (Pt. 784) 401 – 402.
We have also stated several times that the Respondent has no business formulating issues for determination of appeal, outside the grounds of appeal raised by the Appellant. See the case of Emesonye Vs The State (2016) LPELR 40550 (CA):
‘We have stated several times, that a Respondent has no room to raise an issue for determination of appeal, outside the grounds of appeal, formulated by the Appellant, except of course he (Respondent) has cross-appealed or raised a Respondent?s Notice, on the strange or fresh issue he proposed. See the case of Onuegbu & Ors Vs Gov. of Imo State & Ors (2015) 8 CAR 224 at 240; (2015) LPELR ? 25968 (CA); Anyalenkeya Vs Anya & Ors (2016) LPELR 40218 CA (page 20 thereof); Musa Vs State (2014) LPELR ? 22912 CA; (2014) 25 WRN 101.’
When the Appeal was heard on 17/4/98, the parties and Counsel were absent despite service of hearing notices, and the Briefs were deemed duly argued.
Arguing the Appeal, as per the brief settled by C.O. Emeagi Esq., Appellant submitted that the Lower Court had jurisdiction to interpret the words of the order on Exhibit A, notwithstanding that the order was made in a suit about land in a rural area; that this is because Section 22(2) of the High Court Law Cap. 16 Laws of Eastern Nigeria applicable in Imo State, gives the High Court jurisdiction to hear and determine any civil cause or matter (other than for specific performance or breach of contract as stated in Section 22(1) in which the Defendant or one of the Defendants resides or carries on business within the jurisdiction of the Court. Counsel also relied on Section 19(1) of the Constitution of the Federal Republic of Nigeria 1999, which he said gives the High Court of the State jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal interest or claim is in issue.?
Counsel said the interest or claim in issue, in Suit No. HME/1/98, was the interpretation of the words of the order in Exhibit A; that the interest or claim of the Appellant was to know the meaning of the words in the Order; that this required an interpretation and that originating summons was the proper process to seek the interpretation.
Counsel said the argument in paragraph 5.01 of the brief was not presented fully in the Court below in that form with its supporting statutory authorities. He sought leave of this Court to present the argument as stated in the paragraph 5.01 of the brief.
Counsel said that for the Respondents, Suit No. HME/37/83 was lost by the Appellant and his co-plaintiff, together with the land named in the Suit, because the order made therein (which terminated the Suit) used the sentence ?the case is hereby dismissed; that for Appellant, the reason for dismissing the Suit on the application of their Counsel was because the action was misconceived and there was no lis inter parties.
Thus, the need for a judicial interpretation of the words of that Order became compelling. He argued that, as the Court below failed to perform this function, to interpret the order on Exhibit A, after it appreciated that it could conveniently do so, this Court should step in to perform that function, under Section 16 of the Court of Appeal Act, 1976, and hold that Exhibit A awarded no res to the Respondents; that we should consider some fresh submissions by Counsel on the point, namely as to the fact that:
(1) The meaning of Lis A Suit or action where there is an issue between parties in dispute;
(2) The dismissal order was not an order made after an ordinary hearing of the facts of the case from both parties.
(3) The order of ‘dismissal’ was made on the application of the Appellant’s Counsel to withdraw the Suit for reasons given by him which are more explicitly outlined in the unopposed Affidavit in support of the originating summons.
(4) The word ‘dismissed’ in the order was qualified by the reason given for making it, that is to say, that ?the action is misconceived and there is no lis inter parties.
(5) The word ‘dismissed’ would only act to prevent the misconceived action without a lis inter parties from being relisted, should the Plaintiffs want to do so, if the action were merely struck out as was asked for by their Counsel.
(6) As the Court ruled that the action was misconceived and there was no lis inter parties in their originating position before the action was filed, there is nothing the Respondent can enforce in that order, except the award of N40.00 cost to them that appears on Exhibit A ? See Awoniyi & Ors Vs Reg. Trustees of AMORC (Nig) (2000) 79 LRCN 1796.
(7) If the above submissions are accepted, that Respondents be restrained from acting towards Appellant and the whole world as if that order awarded a res or any land to them in the Suit. He relied on Section 16 of the Court of Appeal Act, 1976.
Counsel added that the Respondents’ argument at the Court below, that asking for that interpretation of the order would amount to asking that Court to set on appeal over its earlier decision, was not ruled upon by the Court below, and so that argument did not form part of the subject matter of this appeal, he said that the plank on which the dismissed of the originating summons was made was that the Court had no jurisdiction to entertain it, because the Order sought to be interpreted was an Order made in a case affecting land in a rural area!
The Respondents’ only valid issue was, whether Appellant has satisfied the conditions under which the Court can set aside the concurrent finding of two of two Lower Courts. They urged us to ignore this appeal to set aside the order of the Lower Court saying that the condition required to disturb the ruling of the lower Court, did not exist; that the Suit No. HME/37/83 suffered dismissal in the High Court, Etiti, in 1983 and HME/1/98 was also dismissed in the High Court Mbano on grounds of incompetence. They added that the findings of these Courts were not perverse, erroneous and did not occasion miscarriage of justice. He urged us to apply the principle of stare decisis and dismiss the appeal, relying on Okulate Vs Awosanya (2000) 1 SC 107 and Nicholas Apurosein & Ors Vs Chief Daniel B. Igba & Ors (1999) 6 SC (Pt.1) 114.
RESOLUTION OF ISSUE
I think this is another example of a Suit or appeal that can be described as the proverbial ‘storm in a tea cup’ or ‘fumes and fury over nothing.’
In Suit No. HME/37/83, between the parties (Exhibit A), the trial Judge Hon. Justice I.C.K. Pats – Acholonu J. (as he then was and later JSC), had, following application of Appellant’s Counsel, to withdraw the Suit, ordered the Suit dismissed (instead of striking it out), saying ‘the action is misconceived and there is no lis inter parties’. See page 8 of the Records of appeal, where the reason for withdrawing the Suit HME/37/83 was also disclosed).
Probably for fear of encountering problems or difficulties in filing a fresh action, in the place of the withdrawn Suit (HME/37/98) that is fearing that Respondent will raise an objection to such new Suit on the ground that the case (HME/37/83) was ‘dismissed’ and cannot be re-litigated upon, Appellant filed this Suit HME/1/98, seeking the Lower Court’s interpretation:
Whether the Order of Hon. Justice Pats-Acholonu, made on 22/3/1990 in the Suit No. HME/37/83 on the said grounds as worded:
‘The case is hereby dismissed on the grounds that the action is misconceived and there is no lis inter parties’, awarded any res to the Defendants or created any status between the two sides and if so what the res or status was.’
Appellant also wanted the Lower Court to restrain the Respondents from behaving in any way towards the Appellant or the whole world, as if the said Order awarded any res or judgment in the said Suit, that is, if the Lower Court in HME/1/98, agreed with him (Appellant) that the order did not award anything to Respondent, apart from the N40.00, cost made to Respondent!
The paragraph 5.05 (a) (b) (c) (d) (e) and (f) of the Appellant’s Brief (wherein Appellant argued, and urge us to invoke Section 16 of the Court of Appeal Act, 1976 (Section 15 of the 2004 Act) to grant the reliefs sought in Suit No. HME/1/98, shows the real reason for this entire case. Appellant had argued:
(a) Whether the Order of Hon. Justice I.C.K. Pats – Acholonu (as he then was) made on 22nd March, 1990 in Suit No. HME/37/83 between the parties in the following words ‘the case is hereby dismissed on the grounds that the action is misconceived and there is no lis inter parties’ awarded any res to the Defendants or created any status between the two sides, and if so what the res or status was.
(b) If the answer to (a) above is in the negative, whether this honorable Court would not be right to restrain the Defendants jointly or severally, from in anyway behaving towards the Plaintiff or the whole world, as if the said order awarded any res or judgment in the said Suit to them.? (See page 1 of the Records of Appeal).
Unfortunately, the trial Court did not consider the case (HME/1/98) on the merits as it was distracted by the preliminary objection, which stated that the lower Court lacked jurisdiction to re-open a Suit (the subject matter of which is land, situate in rural area), and dismissed it on the 22/3/90; the preliminary objection had also argued that the Lower Court cannot sit on appeal over its said decision (or judgment of a fellow judge of coordinate jurisdiction); that because the subject matter of the Suit HME/37/83 was land in the rural area, the High Court had no jurisdiction over it, being an issue for the Customary Court.
The trial Court in HME/1/98 had upheld the preliminary objection, holding that it lacked power to interpret the order made by another High Court (of same jurisdiction with it) touching and concerning land in a rural area.
While agreeing with the learned trial Court that it had no powers to entertain the Suit in the circumstances, I differ with the reason given for the decision. I think the order should have been granted for reason that there was really no unclear or obscure Order made by the Court in Exhibit A, that needed interpretation. I therefore disagree with the Lower Court for the reasons it gave for upholding the preliminary objection, and dismissing the Appellants? Suit (HME/1/98), instead of striking it out for the purpose.
The Lower Court had inferred that it did not have jurisdiction to entertain the Suit, as the earlier dispute touched on and concerned land in a rural area, whereof it (the Lower Court) would not have jurisdiction to venture into any interpretation of the Order made in respect of such a Suit!
I rather think there was no need or cause for any such interpretation, as the Order of Court in Exhibit A (HME/37//83) was plain, clear and unambiguous, when it stated that the Suit be ‘dismissed’, on the application of Counsel to withdraw it, and the Suit was ‘dismissed on the grounds that the action is misconceived and there is no lis inter parties.’
I do not think a Court can be called upon to interpret what is plain, clear and obvious. See Afribank Nig. Plc and Ors Vs Emori (2013) LPELR 21137 CA:
the position Courts has always been that in the construction or interpretation of the Constitution, or a statute, where the words are plain, clear and unambiguous, effect would be given to them in their ordinary and natural meaning, except where to do so, will result in absurdity. See Lawal Vs G.B. Ollivant (1972) 3 SC 124 at 127; Toriola Vs Williams (1982) 7 SC 27; Sunmonu Vs Oladokun (1996) 8 NWLR (Pt. 467) 387; Nnonye Vs Anyichie (2005) 1 SCNJ 306
See also NNPC Vs Aminu (2013) LPELR 21396 CA; (2014) ALL FWLR (Pt. 726) 527: “I think the Court can only be called upon to interpret the content of a document, where there is conflict in the understanding of the Agreement by the parties on it.”
It should be seen and understood that a case that has not been heard (on the merits, or at all) and is withdrawn, for which a Court makes an order of dismissal, because the action is misconceived and there is no lis inter parties, amounts to striking out of the matter, especially where there is no issue in conflict between parties in order words, no cause of action. And where there is no controversy about a given Order of Court, warranting the need to interpret what effect to be given to the Order, I think it will amount to exhibition of mental fatigue, or mere self indulgence and speculation/gamble for a party to go to the very Court that made the Order, or another Court of coordinate jurisdiction to ask it to interpret (what had already been written in clear language) whether the Order awards any res that can enure benefit to any person or against any person, and/or the whole world, when there is no dispute or cause to do so, and the matter is not on appeal.
That would be engaging in academic pursuit in my opinion. See the case of Dibiagwu Vs Uzonwanne & Ors (2017) LPELR 43074 CA, where this Court said:
“A Case or Appeal is said to be an academic exercise, when it would bring no benefit to any party, except, perhaps, the sensual/mental satisfaction to the party who brought it, where there is no live issue in the litigation/Claim; that is, where what is presented to the Court for a decision (and if decided) cannot affect the parties thereto in anyway, either because the fundamental nature of the reliefs sought has changed or there is a changed circumstance, since after the litigation, such that in the end, the case or the appeal has become academic at the time it is due for hearing. See Labour Party Vs Bello & Ors (2016) LPELR ? 40848 CA; Eric Uchegbu & Anor. Vs Pastor Mgbeahuroike & Ors (2017) LPELR 41683 CA; A.G. Federation Vs ANPP (2004) LRCN 2671; Odedo Vs INEC (2008) 17 NWLR (Pt.1117) 554.
I do not see any merit in this appeal, apart from the contention that the Lower Court should have struck out the Suits ‘HME/37/83 and HME/1/98’ instead of dismissing them. The appeal is therefore dismissed, except the point that the Lower Courts dismissed the application/suit, rather than striking them out.
I think it is proper to correct the Order of the trial Court dismissing the Suits No. HME/37/83 and HME/1/98 and replace same with Order of striking out of the Suits. Application as the matters were never heard on the merits!
Parties shall bear their respective cost.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother, MBABA, JCA. This is to state that I cannot agree more that the instant appeal is clearly ‘fumes and fury over nothing’. I have nothing useful to add by way of contribution to the judgment.
Accordingly, I too find the appeal to be unmeritorious and dismiss it, in the manner it has been done in the leading judgment and I also abide by the order made in the leading judgment in relation to costs.
Appearances:
C.O. EMEAGI ESQ.For Appellant(s)
Not stated but E.C. MARAIZU ESQ (as disclosed in the process-Records of Appeal)For Respondent(s)
