HERITAGE BANK PLC v. OYEOKA & ANOR (2022)

HERITAGE BANK PLC v. OYEOKA & ANOR

(2022)LCN/16800(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Thursday, October 27, 2022

CA/AW/183/2014

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

HERITAGE BANK PLC APPELANT(S)

And

1. IFEANYI OYEOKA 2. EMEKA OYEOKA (For And On Behalf Of Ugoma Okolo Family Of Umuogbu Village, Awka) RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS EVERY IRREGULARITY THAT NULLIFIES AN ENTIRE PROCEEDING

What should perhaps, be stated at this stage, is that it is not every irregularity that automatically nullifies an entire proceeding, particularly where the irregularity did not in any way materially affect the merits of the case or occasion miscarriage of Justice especially where the effect of the irregularity is procedural. See the case of ODOM & ORS vs. THE PEOPLES DEMOCRATIC PARTY (2015) LPELR 24351 cited by learned Respondents’ Counsel. See the case of ODU’A INVESTIMENT CO. LTD vs. TALABI (1997) LPELR-2232 SC where the apex Court per OGUNDARE, JSC had this to say on the subject:
“Where, however, the defect does not affect the competence or jurisdiction of the Court, it is a mere irregularity which the Court may ex debito justitiae set aside. As Bairamian FJ put it in Madukolu: “If the Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial; in which case the Appeal Court may not think fit to set aside the judgment. A defect in procedure is not always fatal.” In Mac Foy, Lord Denning delivering the judgment of the Privy Council also said:”…But if an act is only voidable, then it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the Court setting it aside: and the Court has discretion whether to set it aside or not. It will do so if justice demands it but not otherwise. Meanwhile it remains good and a support for all that has been done under it. So will this statement of claim be a support for the judgment, if it was only voidable and not void.” PER OHO, J.C.A.

THE POSITION OF LAW ON THE PRIMARY OF THE TRIAL COURT

The settled position of the law is that it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, and ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse.
An Appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse. See the cases of NWANKPU vs. EWULU (1995) 7 NWLR (PT. 407) 269; AJIBULU vs. AJAYI (2014) 2 NWLR (PT. 1392) 483; IKUMONIHAN vs. STATE (2014) 2 NWLR (PT. 1392) 564. PER OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellant, who was the Defendant in the Court below against the decision of Anambra State High Court sitting at Awka and presided over by C. A. EMEMBOLU, J and delivered on the 17th day of June, 2013. The learned trial judge gave judgment in favour of the Plaintiffs, who are the Respondents before this Court and granted all the reliefs of the claim of the Plaintiffs. Dissatisfied with the Judgment of the trial Court, (hereinafter referred to as “the Court below”) the Appellant filed a notice of Appeal dated 14th July, 2013 but which he later amended.

At the Court below, the Plaintiffs took out a suit of summons claiming to be the children of one Ugboma Okolo who entered into two separate lease agreements over two parcels of land with ACB. During the currency of the lease, A.C.B was unable to pay the rent for the first lease with consent of Ugboma Okolo (The Lessor) who never complained. Ugboma Okolo later died. ACB after merging with other Banks gave birth to Spring Bank, which later became Enterprise Bank, who was the Defendant at the lower Court. As a result of the merger, Spring Bank took over all the assets of every other bank in the merger.

The Defendant (Spring Bank) commenced the reconstruction of the land in dispute, which was one of the properties of the Defendant as a result of the merger. The said building of the Defendant was eventually completed, but yet to be painted when the Plaintiffs secured an injunction and sealed-off the whole premises comprising both the 1st lease, which has expired and the 2nd lease, which expiration date was in 2014, a period of 5 years after the suit was filed.

The Plaintiffs, who were not part of the lease agreement and also did not present any letters of administration, but however, lay serious claim on the whole premises now in dispute. The Defendant made an offer to prevent damage to their completed building but the Plaintiffs refused the offer and asked for a pound of flesh claiming that the 1s tlease has expired and the defendant shall be treated as a trespasser.

By the time of the injunction, part of the compound which lease is still current was also sealed up. The 1st lease and the 2nd lease make up the same premises. The case of the Plaintiffs is that they have stepped into the shoes of late Ugboma Okolo and can go for forfeiture on behalf of the said Ogboma Okolo whom they claimed was their father. The case of the Appellant is that there was no forfeiture during the life time of Ugboma Okolo. It is also the Appellant’s case that there was no proper survivor of the late Ugboma Okolo who can receive on behalf of Ugboma Okolo the rent for the first lease as there was no Will or Letters of Administration presented to them.

ISSUES FOR DETERMINATION:
Learned Appellant’s Counsel nominated a record of ten (10) issues for the determination of this Appeal, thus:
1. WHETHER the learned trial judge was right in holding thus: “the documentary evidence Exhibit HE” before the Court in this issue shows that the defendant is in breach of paragraph 2 (iv) and paragraph 4”?
2. WHETHER the learned trial judge was right in holding that the plaintiffs are sons of the late Oyeoka Ugboma Okolo?
3. WHETHER the grant of all the reliefs and the alternative reliefs of the plaintiffs (Respondents) does not make the judgment of the Court vague and unenforceable?
4. WHETHER the learned trial judge was right in admitting in evidence Exhibit “A”?
5. WHETHER the trial Court was right in granting all the reliefs of the Respondents (plaintiffs) who are not privies to the lease agreement?
6. WHETHER the trial Court was right to assume jurisdiction in this case?
7. WHETHER the trial Court was right in dismissing the counter claim of the Appellant (Defendant)?
8. WHETHER the trial Court properly evaluated the evidence in this case placed before it before arriving at its conclusion?
9. WHETHER the trial Court was right to have assumed jurisdiction in a suit with a fundamentally defective writ of summons?
10. WHETHER the trial Court was right not to have given a considered ruling in a motion challenging the jurisdiction of the lower Court?

On the part of the Respondent, learned Counsel for the Respondent adopted the issues of the Appellant and replied to the arguments of the Appellant for the consideration of this Court. It is in respect of these issues that learned Counsel for the parties addressed this Court extensively.

SUBMISSIONS OF COUNSEL FOR THE PARTIES:
APPELLANT:
ISSUE ONE:
Whether the learned trial judge was right in holding thus: “The documentary evidence exhibit ‘B’ before the Court in this issue shows that the defendant is in breach of paragraph 2(iv) and paragraph 4”?

In arguing this issue, learned Appellant’s Counsel referred this Court to page 286 of the Court’s record, containing the lower Court’s judgment where the Court below held that the “documentary evidence Exhibit B before the Court in this issue shows that the Defendant is in breach of paragraph 2(iv) and paragraph 4…”. The contention of Counsel is that the Court arrived at this decision erroneously because the Court’s reasoning was “beclouded with sentiments”; and that the Court further decided at page 287 of the records at paragraphs 11 and 12 that the Defendant admitted that he is in breach of the provisions of the lease agreement.

Based on the foregoing, Counsel submitted that the findings of the Court do not represent either the averments in the pleadings of Defendant or the written deposition and/other evidence of the Defendant. Counsel contended that the trial Court did not look at the pleadings and evidence of the Defendant, but determined the matter on sentiments and imagination.

As far as Counsel was concerned, there was no where the Defendant admitted that he was in breach of the lease agreement between the parties as there was nowhere either in the pleadings of the Defendant or in his written deposition or any other evidence (cross-examination) where the Defendant admitted that he was in breach of the agreement. For this reason, Counsel referred to paragraph 8 of the statement of Defence at page 124 of the records and also paragraph 36 of the written deposition of PW1 (Kanayo Nwafor) at page 131 of the records.

Against the backdrop of the foregoing, learned Counsel submitted that the Defendant was not in breach of the lease agreement. However, Counsel in assuming, but without conceding there was a breach; he argued that the Lessor condoned the breach and did not go for forfeiture throughout his lifetime. Again, Counsel argued that the Respondents who claimed to be the survivors of the Lessor allowed the Appellant to commence development/renovation of the property until the Appellant as Defendant completed the reconstruction of the building in the premises.

In evaluating the whole circumstances surrounding the lease agreement or agreements entered into by parties (Lessor and the Lessee) Counsel argued that the 1st lease agreement Exhibit “B”, which provision was purportedly breached had tenure of 99 years and had no review clause. Counsel also contended that the 2nd lease agreement (Exhibit “E”) which tenure is for 80 years has no review clause also, but was to expire in 2015 (See pages 24 – 25 last line and first line of the records).

Counsel also contended that when the problem that confronted the then A.C.B., which later transformed into the Appellant, is considered, which problem the Lessor very well understood and patiently condoned, Counsel asked, whether in spite of that, it could be said that the Appellant was in breach of the lease agreement?

Again, Counsel contended that in view of the fact that the rent for the 2nd agreement was still subsisting/current and has not expired could it be said that the Appellant is in breach of the lease agreement, considering the fact that both agreements are over the same premises and make up the said premises without any demarcation on the premises on the ground?

Arising from the foregoing, the submission of Counsel therefore, is that since the rent for the 2nd lease, over the same premises with the 1st lease, is still current, it automatically enlivens the tenure of the 1st lease which, rent has expired. Counsel further submitted finally on this issue that the Appellant is not in breach of the lease agreement, in addition to the fact that there was no evidence that the A.C.B. ever parted with the premises or sublet the premises to any other person.

ISSUE TWO:
Whether the learned trial judge was right in holding that the Respondents are the sons of the late Oyeoka Ugboma Okolo?

The submission of learned Counsel here is that the foregoing finding by the Court below does not reflect the true position of this case as there was no where the Respondents as Plaintiffs showed any document that proved that they are the children of the original Lessor. In assuming but without conceding that such document was tendered, there were no letters of administration reflecting the status of the Respondents that will warrant them to be entitled to the rents accruing from the lease agreement other than the production of letters of administration in accordance with the laws of the state. Counsel referred this Court to Section 81 Administration and Succession (Estate of Deceased Persons) Law part 3 Cap. 4 at page 87 of Laws of Anambra State 1991 states thus:
“where a person dies intestate his personal estate until letters of administration is granted in respect thereof shall vest in the Court who shall have and exercise such power in relation to the estate as may be required for the realization, preservation or prevention of waste of the estate”.

The contention of Counsel is that the Appellant as Defendant in paragraph 1 of its Statement of Defence specifically pleaded that the Respondents do not have letters of administration. Counsel referred to page 123 of the records and also to THE ADMINISTRATORS/EXECUTORS OF GENERAL SANI ABACHA (DECEASED) vs. SAMUEL DAVID EKE – SPIFF & 3 ORS 37 NSCQR- 365 at pages 393 – 394 para C – D where it was held thus:
“… I go further to say that a person does not have the locus standi, indeed he lacks the competence to bring an action in a representative capacity as an administrator of the estate of a deceased person until he has been granted the letters of administration. If he brought the actions before the grant, such grant has no retroactive validity… “

The submission of Counsel here is that the Respondents as Plaintiffs did not prove that they are the children of Oyeoka Ugboma. Counsel urged this Court to set aside the decision of the Court below.

ISSUE THREE:
Whether the grant of all the reliefs and the alternative reliefs of the Plaintiffs (Respondents) does not make the judgment of the Court vague and unenforceable?

The submission of Counsel is that the grant of all the reliefs of the Appellants makes the judgment of the Court vague and thereby unenforceable. The contention of Counsel is that, at page 288 of the records, the learned trial judge made orders for specific performance against the Appellants to review and/or re-negotiate the lease agreement with the Respondents and to pay the arrears of rent on a re-negotiated/reviewed rent. In addition, that the Court below made orders of reversion of the said property back to the Respondents as Plaintiffs and finally an order of injunction, restraining the Appellant by himself, assigns, representatives, privies for or through her from further demolishing, reconstruction, removal and moving/parting with the said property without the consent of the Respondents being sought.

Against the backdrop of the foregoing, Counsel contended that the findings of the Court are vague, unclear and unenforceable. Counsel argued that Relief No. 1 of the Respondents as Plaintiffs requires that the parties should renegotiate the terms of the lease agreement and that going by the tenor of this arm of the judgment, it means that the relationship of the parties as lessor and lessee is still subsisting under the lease agreement, but that the terms should be renegotiate. Although this falls in line with the evidence of the PW1, Counsel however, queried what parameters there are for the renegotiation.

The argument of Counsel is that the Respondents who said that there is need for rent review did not in any way suggest any amount to be paid as rent by the Appellant, despite the fact that the Appellant in paragraph 5 of her pleadings averred copiously their proposal for the rent review, which would have been a guide for renegotiation. Counsel referred to page 124 of the records and also the written deposition of the Respondent on page 129 of the record. He further argued that since the Respondents refused to present or furnish a reasonable rent as is pleaded by the Appellant. See paragraph 9, 9a, and 11 (d) of the statement of Defence. Refer page 124 -125 of the records, it would have behoved the Court to resolve the dispute of parties by creating a realistic way of resolving the dispute.

Counsel further contended that the Appellants made an offer but the Respondents refused to make an offer and tried to use that trick to ensure that the dispute is sustained and yet the lower Court was unable to observe and understand this. Counsel said that the offer of the Appellants in their counter claim would have been considered by the Court as the parameter to guide the Court in fixing a reasonable rent for the parties so that this case may be decided one way or the other.

On account of the 2nd relief of the Respondents is for reversion of the said property back to the Respondents, while the 3rd relief is for an order restraining the Appellant from further demolishing, reconstructing, removal and moving/parting with the said property without the consent of the Respondents being sought. The contention of Counsel is that from the foregoing 3rd relief granted the Respondents, it means that the Appellant cannot part with the said property.

The further contention of Counsel is that the said judgment of the Court in Relief 1-3 of the Respondents granted together, it means that the parties are still at status quo ante and that this means that “the basis for coming to the Court is defeated”. He argued that from the judgment of the Court, the property is not fully in the hands of the Respondents or fully in the hands of the Appellants, but rather hanging in between, leaving another arbiter to assist in fixing the rent of the parties as parties could-not arrive at an agreeable rent as averred by the Appellant who made an offer but the Respondents were silent on making an offer or accepting the offer made by the Appellant.

ISSUE FOUR:
Whether the Court was right in admitting in evidence Exhibit A?

The submission of learned Counsel under this issue is that the Court below was wrong to have admitted in evidence Exhibit “A” as the said document was not in anywhere contained in the written deposition of PW1 who sought to tender same, but was objected to by the Appellant’s Counsel and admitted by the Court. See page 264 of the Records. The contention of Counsel is that pleading does not constitute evidence and that the said document was not properly frontloaded in accordance with the Rules of Court. Counsel referred this Court to Order 32 Rule 1(3) of the Anambra State High Court Civil Procedure Rules 2006.

ISSUE FIVE:
Whether the trial Court was right in granting the reliefs of the plaintiffs who are not parties to the suit?

The submission of Counsel is that the Court below was wrong in granting the reliefs of the plaintiffs. Counsel contended that from the pleadings of parties and evidence of parties it is clear that the Respondents as Plaintiffs are not parties to the lease agreement between Oyeoka Ugboma Okolo and the ACB. Counsel further contended that is it is not stated anywhere that the Respondents have tendered any legally acceptable document particularly the letters of administration, which would have given them authority to legally represent the Lessor.

According to Counsel it is trite that it is only privies to a contract that can maintain an action over the contract. Counsel cited the case of In SAVANNAH BANK PLC vs. IBRAHIM (2000) FWLR (PT. 25) 1626 AT 1645 PARAGRAPH C – D where it was held: “that a stranger to a contract though a beneficiary, cannot enforce the said contract”. Counsel urged this Court to resolve this issue in favour of the Appellant.

ISSUES SIX & NINE:
Whether the trial Court was right to assume jurisdiction in this case?

Whether the trial Court was right to have assumed jurisdiction in a suit with a fundamentally defective writ of summons?

In arguing these two issues together, learned Counsel submitted that the Court below lacked the jurisdiction to entertain the suit in the first place due to the fundamental defect in the writ of summons which originated the suit. Counsel, by so saying identified the fact that there was no claim in the writ of summons pursuant to Order 3 Rule 3 and also that there is there is no address of service in the writ of summons pursuant to Order 4 Rule 6(2). Another defect is that there is no name and signature of the legal practitioner who originated the suit pursuant to Order 6 Rule 2(3) of the High Court (Civil Procedure) Rules 2006 of Anambra State. As far as Counsel is concerned, from the clear provisions of Form 1 of the High Court Rules the writ of summons is defective (See pages 2 and 3 of the Records).

The contention of Counsel is that these omissions offend Order 5 Rule 2 of the High Court Rules of Anambra State and Civil Procedure Rules 2006. See AKINTUNDE vs. OJO (2002) FWLR (PT. 99) 1154 AT 1173 PARAGRAPHS G – H where it was held that “where there is precondition for the commencement of an action and that the condition must be fulfilled”. See also KIDA vs. OGUNMOLA (2006) ALL FWLR (PT. 327) 402 AT 412 – 413 PARAGRAPH H – A where it was held that “failure to commence proceedings with a valid writ goes to the root of the case and any order emanating from the proceedings must be set aside.”

In arguing the first of the two issues, Counsel contented that the Respondents the Respondents as Plaintiffs who did not tender or produce any letters of administration, who ordinarily did not have any business with the Court were allowed by the Court to prove their case despite the fact that the trial Court lacked jurisdiction to handle the case. Counsel referred this Court to Section 81 of Administration and succession (Estate of Deceased) law Part 3 Cap 4 at page 67 of Laws and Anambra State, 199; THE ADMINISTRATORS OF EXECUTORS OF GENERAL SANI ABACHA (DECEASED) vs. SAMUEL DAVID EKE SPIFF & 3 -ORS 37 NSCQR P. 365 AT PAGES 393 – 394 -PARA C – D. Counsel argued that with the forgoing provisions of the Rules of Court and law, it is clear that the Court below had no jurisdiction to entertain the suit. Finally, on these issues we urge the Court to resolve these issues in favour of the Applicant.

ISSUE SEVEN:
Whether the trial Court was right in dismissing the counter claim of the Appellant?

The contention of learned Counsel here is that the trial Court, by not adverting his minds to the counter claim of the Appellant, indirectly dismissed same and as a result was in error to have done so. Counsel stated that the counter claim of the Appellant was clearly averred in the pleadings of the Appellant and also given in evidence in the evidence in Chief of PW1. See pages 123 (statement of Defence) and page 128 (written Deposition) of the Records. Counsel further said that the counter claim clearly stated the rents proffered by the Appellant (defendant) at lower Court which would have acted as a yardstick in resolving the issues between parties but the Court refused to pronounce on it.

Counsel further stated that the omission and /or failure of the lower Court to consider and make pronouncement on the counter claim of the Defendant (Appellant) at the lower Court is a serious omission and he urged this Court to resolve this issue in favour of the Appellant.

ISSUE EIGHT:
Whether the trial Court properly evaluated the evidence of parties in this suit placed before it before arriving at its conclusion?

The submission of Counsel in arguing this issue is that the learned trial judge did not properly evaluate the evidence before him in this suit, and also did not make proper findings of fact. The further submission of Counsel is that the trial Court failed to discharge its obligation in this matter by doing what was required in the evaluation of evidence before deciding a matter one way or the other especially when it failed to evaluate the evidence of witnesses in this case in the prescribed manner.

The learned Counsel contended that the Appellant through their PW1 tendered Exhibit “D” which is a letter asking the Appellants to pay the rents owed by ACB. Refer page 266 of the Records. Refer also page 41 of the records. He argued that by writing to the Appellant to pay the arrears of rent, the Respondents have admitted that the Appellant is not a stranger to the lease agreement. The Appellant in paragraph 6 of their statement of Defence admitted receiving letter of 13th May, 2008 (Exhibit “D”) refer page 124 of the records also in paragraph 10 of their statement of Defence the Appellant averred that they merged with ACB and acquired their assets, refer page 124 of the records.

Counsel added that in paragraph 10 of the pleadings of the Appellant they averred that the Respondents knew that they are not strangers and that is why they wrote to them asking for arrears of rent, refer page 125 of the records. In addition, Counsel contended that the Appellant clearly pleaded that there was a merger and also gave that in evidence and the said evidence in paragraph 39 written deposition was unchallenged, yet the Court refused to evaluate the said evidence of DW1 (Kanayo Nwafor) refer page 132 of the records.

Again, that in paragraph 17 of the written deposition the Appellant agreed to pay the arrears of rent but that the Respondents did not furnish them with any legal document qualifying them to receive the money as administrators of the Estate. Refer page 129 of the records. Counsel argued that had the lower Court considered the above pieces of evidence the Court would not have arrived at the decision it arrived.

ISSUE TEN:
Whether the trial Court was right not to have given a considered ruling in a motion challenging the jurisdiction of the lower Court?

In arguing this issue learned Counsel submitted that the Court erred in law it refused to give a considered ruling on a motion filed by the Appellant challenging the jurisdiction of the Court. According to Counsel, Defendant filed motion No: A/860M/09 dated 3rd November 2009 and filed on 4th November 2009 refer page 139 of the records. The said motion was argued by counsel but the Court in its ruling refused to give a considered ruling on the motion which was duly moved by Defendant (Appellant) Refer page 258 – 260 of the records.

Counsel argued that there was no time the issue of the defective writ of summons was raised in the suit except in the Motion No: A/860M/09 and as that a result the Court would have considered same by either granting or refusing same. See AILO (NIG. LTD vs. A.C.C.M.U LTD (2004) ALL FWLR (PT. 201) 1350 – 1351 PARAGRAPHS C – G; IN ILOBI vs. UZOEGWU (2005) ALL FWLR (PT. 285) 595 AT 617 PARAGRAPH F where it was held that all pending motions must be determined before a trial judge enters judgment. Counsel further added that the trial Court did not deliver a ruling in this suit one way or the other on a very important matter that affects the jurisdiction of the Court.

RESPONDENTS:
Having adopted the ten (10) issues nominated by the Appellant for the determination of this Appeal, as theirs, learned Counsel for the Respondent thereafter addressed Court extensively citing a number of decided cases in the process.

ISSUE 1
Whether the learned trial judge was right in holding thus; “the documentary evidence Exhibit “B” before the Court in this issue shows that the defendant is in breach of paragraph 2(iv) and paragraph 4 …? “

The contention of Counsel in arguing this issue is that it is issue based on fact and not law. He argued that in evaluating the record, recourse must be made to what the trial learned High Court Judge said (from page 286 of the Record particularly line 29 to page 287 line 12). The contention of Counsel is that in this case, the Court found that the Appellant admitted to being in contravention with the said Exhibit B. Counsel referred this Court to page 286 lines 26 to 28 of the record, for the observations of the Court on the issue. Counsel submitted that the Respondents aligned their submission with that of the Court while admitting Exhibit B in evidence and states further that a document is best proof of the content therein.

The further contention of learned Respondents’ Counsel is that in paragraph 10, the Appellant was described as admitting to have merged with some other banks over time and that this resulted to assigning or under letting and not bringing it to the knowledge of the Respondent. Counsel also stated that the Appellants were described as admitting that both parties made series of attempts to renew the lease agreement (Exhibit B) thereby acknowledging that the Respondents are the children of late Oyeoka Ugboma Okolo. Counsel contended that the Appellant admitting that they were owing the Respondent rents as the Respondent attempted to renew the rent and the Appellant turned it down.

Again, Counsel argued that in none of the paragraphs in the statement of defence did the Appellant aver that she paid rent to the Respondent or that she informed the Respondent of the said merger prior to it and afterwards. Rather, Counsel said that it was very clear that the Appellant constantly proved that she had contravened the provision of paragraph 2(vi) and paragraph 4 of Exhibit B as pleaded in paragraph 10 of the statement of defence at page 124 to 125 of the Record.

As far Counsel is concerned, the Court below, in coming to the decisions made, the learned trial Judge properly applied the law to the facts he found and thereby came to the conclusion that the Appellant breached paragraph 2(vi) and paragraph 4 of the documentary evidence Exhibit ‘B’. Counsel urged this Court dismiss issue 1 and rule in our favour.

ISSUE 2:
Whether the Learned High Court judge was right in holding that the plaintiffs are sons of the late Oyeoka Ugboma Okolo?

In arguing issue 2, Counsel posed the question of who a proper and desirable and/or necessary party to a suit is. Counsel in answer to this question posed, referred this Court to the case of JADESIMI vs. OKOTIE-EBOH; IN RE LESSEY (1989) 4 NWLR (PT. 113) 113 to the effect that desirable parties are those parties who have an interest in or who may be affected by the result of the action, whereas necessary parties are those who are not only interested in the subject matter of the proceeding but also who in their absence the proceedings could not be fairly dealt with. Counsel also cited the cases of UKU vs. OKUMAGBA (1974) 1 ALL NLR (PT. 1) 475; PEENOK INVESTMENT LTD vs. HOTEL PRESIDENTIAL LTD (1982) 12 S.C. 1; GREEN vs. GREEN (1987) 2 NWLR (PT. 61) 480; UGORJI vs. ONWU (1991)3 NWLR (PT. 178) 177.

The contention of Counsel is that there is no law that states that letter of administration is a mode of identification or proving that one is the child or an estate of a deceased man. Besides this, Counsel argued that at law, a member of the family can protect his family interest over a family property, or that any member of a family can protect his family property with or without letters of administration. Counsel cited the case of ANUSORO vs. OBILOR (1997) 11 NWLR (PT. 530) 661 in support of this contention and urged this Court to resolve this issue in favour of the Respondents.

ISSUE 3:
Whether the grant of all the reliefs and the alternative reliefs of the plaintiffs (Respondents) does not make the judgment of the Court vague and unenforceable?

The submission of Counsel is that the reliefs sought by the Respondents as Plaintiffs were alternative reliefs and that their grant does not make them vague, but rather enforceable. The contention of Counsel is that the 1st and 2nd reliefs of the Respondents have been enforced after the Judgement was delivered, which automatically leaves the other reliefs unenforceable. Counsel argued that the lease agreement has been renegotiated by both parties and a rent agreed upon by both parties, but that the Appellant have blatantly neglected or refused to withdraw this Appeal and that this presents the attitude of the Appellant to be utterly contradictory.

Counsel further contended that the enforcement of reliefs 1 and 2 by both parties is an admission of the Respondents’ claim by the Appellant; as the enforcement of reliefs 1 and 2 leaves the other reliefs unenforceable.

ISSUE 4:
Whether the learned trial Judge was right in admitting in evidence Exhibit “A”?

In arguing this issue, Counsel submitted that there are three (3) main conditions, which govern the admissibility of documentary evidence which, are;
1) the document must be pleaded;
2) the document must be relevant to the facts before the Court and;
3) the document must be admissible.

Counsel cited the case of OKONJI & 3 ORS vs. GEORGE NJOKANMA & ANOR (1999) 12 SCNJ 254 AT 273. Counsel further submitted that in the circumstance of this case, Exhibit ‘A’ the letter of authority was pleaded in paragraph 1 of the statement of claim which can be found in page 6 of the Record. Again, he said that the document was relevant to the facts of the case and the document was properly frontloaded, which can be shown in page 15 of the record and it makes the document admissible.

ISSUE 5:
Whether the trial Court was right in granting the reliefs of the Plaintiffs who are not parties to the suit?

The argument of Counsel here is that the Respondents/plaintiffs are parties to the suit and Counsel repeated all of paragraphs 3.2 and sub-paragraphs contained herein in the Respondent’s brief of argument.

ISSUES 6, 9 AND 10:
Whether the trial Court was right to assume jurisdiction in this case?

Whether the trial Court was right to have assumed jurisdiction in a suit with a fundamentally defective writ of summons?

Whether the trial Court was right not to have given a considered ruling in a motion challenging the jurisdiction of the lower Court?

In arguing these issues Counsel referred this Court to page 4 of the record which has the Respondents’/plaintiffs’ claim; the name and signature of the legal practitioner representing the Respondents/Plaintiffs and the address of service of the Appellant/Defendant. Learned Counsel also referred this Court to the provision of law governing the High Court of Anambra State, particularly Order 5 Rule 1 (1 and 2) of the High Court of Anambra State (Civil Procedure) Rules 2006 which provides thus;
“1. Where in beginning or purporting to begin any proceeding there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure shall nullify the proceedings.
2. Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to TIME, PLACE, MANNER or FORM, the failure shall be treated as an irregularity and may NOT NULLIFY such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularize such steps.”

Against the backdrop of the foregoing, Counsel contended that the in the circumstance of this case, the form or manner in which the writ of summons is drafted shall be treated as an irregularity and may not nullify any step taken in the proceedings let alone rob the Court of Jurisdiction.

The argument of Counsel is that it is not every irregularity that automatically nullifies an entire proceeding, particularly where the irregularity did not in any way materially affect the merits of the case or occasion miscarriage of Justice. He argued that where the effect of the irregularity is procedural, it cannot affect the judgment. Counsel cited the case of ODOM & ORS vs. THE PEOPLES DEMOCRATIC PARTY (2015) LPELR 24351.

On the question of the Court’s jurisdiction, Counsel submitted that the choice of counsel who drafted a separate claim and included his name, signature, address and the Appellant’s address of service does not rob the Court of its Jurisdiction, which would have eventually resulted to the dismissal or striking out of the suit, but rather the law considers it a mere irregularity which shall not nullify the entire suit.

It was further submitted that a litigant should not be made to suffer from the mistake of his counsel. Counsel cited the case of HON. FATIMA RASAKI & ANOR vs. OLAYEMI LATEEF AJIJOLA & ANOR (2018) ALL FWLR (P. 578, PARA E). Counsel finally submitted that the Court did not assume Jurisdiction, rather, the Court ordinarily had the Jurisdiction which was conferred on it by the constitution to adjudicate the suit and indeed adjudicated the suit. Counsel urged this Court to hold that the Court below had the jurisdiction to entertain the matter.

ISSUE 7:
Whether the trial Court was right in dismissing the counter’ claim of the Appellant (Defendant)?

The contention of Counsel here is that the case of the Plaintiffs/Respondents when proved automatically displaced the counter-claim of the Defendant/Appellant. He argued that it is only where the Plaintiffs failed to prove their case that the Defendant/Appellant can step in to prove his counter-claim. He added that in the circumstance of this case, the Plaintiff succinctly proved his case and the Appellant failed to prove his case on preponderance of evidence.

ISSUE 8:
Whether the trial Court properly evaluated the evidence in this case placed before it before arriving at its conclusion?

Counsel referred this Court Pages 133 and 272 of the record and contended that it is clear from the records that Appellant only tendered one document as evidence to show the processes of the merging of the banks. He added that these pieces of evidence does not confer title of ownership of the property in dispute and that a look at pages 284 to 288 of the record shows the lower Court in evaluating the evidence presented by both parties and drawing conclusion on them.

The contention of Counsel is that it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, and ascribe probative value to the evidence and then come up with a decision. He said that the law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse.

As far as Counsel is concerned, an Appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse. Counsel cited the cases of NWANKPU vs. EWULU (1995) 7 NWLR (PT. 407) 269; AJIBULU vs. AJAYI (2014) 2 NWLR (PT. 1392) 483; IKUMONIHAN vs. STATE (2014) 2 NWLR (PT. 1392) 564.

RESOLUTION OF APPEAL

The Plaintiffs, who are the Respondents herein and sons of Late Oyeoka Ugboma Okolo of Umuogbu Village, Awka, Anambra State instituted this action at the High Court of Anambra State, Awka Judicial Division and in a representative capacity. The subject matter of the case is No: 80 Nnamdi Azikiwe Avenue, Awka which Late Oyeoka Ugborna Okolo leased to the African Continental Bank. It was in 1973 that Late Oyeoka Ugboma Okolo entered into an agreement with African Continental Bank to lease part of his property (No. 80 Nnamdi Azikiwe Avenue, Awka) to A.C.B.

The first issues nominated by the Appellant for the determination of this Appeal deals with the question of whether the learned trial judge was right in holding that the documentary evidence in Exhibit ‘B’ before the Court shows that the Defendant, who is the Appellant herein breached paragraphs 2(iv) and 4 of the said Exhibit. The contention of the Appellant herein is that no such breach was done and that the Appellant did not admit to any such breach and that in essence the Court arrived at this decision erroneously because the Court’s reasoning was “beclouded with sentiments”. However, in assuming, but without conceding there was a breach; the Appellant was of the view that the Lessor condoned the breach and did not go for forfeiture throughout his lifetime. Again, that the Respondents who claimed to be the survivors of the Lessor allowed the Appellant to commence development/renovation of the property until the Appellant as Defendant completed the reconstruction of the building in the premises.

This Court unfortunately, has a different view on the issue. In agreement with learned Respondents’ Counsel the issue herein is one that is based on fact and also largely commonsensical. However, recourse must be had to what the Court below said (from page 286 of the Record particularly line 29 to page 287 line 12 in the course of conducting its evaluation of the evidence adduced by the parties). It is instructive to note that the Court below found that the Appellant admitted to being in contravention with the said Exhibit B. See page 286 lines 26 to 28 of the printed record, for the observations of the Court on the issue. Here was situation in which the Appellants in paragraph 10, was described as admitting to have merged with some other banks over time and that this resulted to assigning or under letting and not bringing it to the knowledge of the Respondent; here was a situation in which the Appellants also admitted making a series of attempts to renew the lease agreement (Exhibit B) thereby acknowledging that the Respondents are the children of late Oyeoka Ugboma Okolo.

Again, the Appellant admitted that they owed the Respondent rents as the Respondent attempted to renew the rent and the Appellant turned it down. The Appellants as Defendants did not in any of their paragraphs in their statement of defence aver that they paid rents to the Respondent or that they informed the Respondent of the said merger prior to it and afterwards. Rather, the Appellant constantly showed that they are in contravened the provisions of paragraph 2(vi) and paragraph 4 of Exhibit B as pleaded in paragraph 10 of the statement of defence at page 124 to 125 of the Record. Little wonder therefore, the Court below came to the unavoidable conclusion that the Appellant had been in breach of paragraph 2(vi) and paragraph 4 of the documentary evidence Exhibit ‘B’. This issue is resolved in favour of the Respondents.

The issue number two (2) deals with the question of whether the learned trial judge was right in holding that the Respondents are the sons of the late Oyeoka Ugboma Okolo. The contention of the Appellant on this issue was that the finding of the Court below does not reflect the true position of this case as there was no where the Respondents as Plaintiffs showed any document that proved that they are the children of the original Lessor. As far as Appellant was concerned, no such documentation such as letters of administration reflecting the status of the Respondents was tendered to warrant them to be entitled to the rents accruing from the lease agreement in accordance with the laws of the State. The Respondents referred to Section 81 Administration and Succession (Estate of Deceased Persons) Law Part 3 CAP. 4 at page 87 of Laws of Anambra State, 1991 in support of their argument.

In clear agreement with Respondents, they are indeed persons with interests in the disputed property and cannot be denigrated or disparaged for having taken steps protect their family properties. As necessary parties whose interests will be affected by the result of the action, their absence from the proceedings could be utterly inimical to their family property. Learned Respondents’ Counsel cited a number of decided cases, some of which are JADESIMI vs. OKOTIE-EBOH; IN RE LESSEY (1989) 4 NWLR (PT. 113) 113; UKU vs. OKUMAGBA (1974) 1 ALL NLR (PT. 1) 475; PEENOK INVESTMENT LTD vs. HOTEL PRESIDENTIAL LTD (1982) 12 S.C. 1; GREEN vs. GREEN (1987) 2 NWLR (PT. 61) 480; UGORJI vs. ONWU (1991) 3 NWLR (PT. 178) 177.
Apart from the foregoing, the settled position of the law is that a member of a family has capacity to sue to protect family property. Indeed, any member of the family whose interest is threatened by the wrongful alienation or wrongful interference with the family property can sue to protect his interest. If the Appellant did not recognize the Respondents as the Children of the original claimant, why did they get involved in holding meeting and negotiating fresh terms as evidence tends to have shown in this case? This fact as far as this Court is concerned, has shown sufficient interest on the part of the Respondents.
The fact that the Appellants did not tender Letters of Administration does not detract from the fact that they have sufficient interest to protect the family property. Consequently, its jurisdictional remedy of Locus Standi does not avail Appellants in the instant case so long as a member of a family has capacity to sue to protect family property. Indeed, any member of the family whose interest is threatened by the wrongful alienation or wrongful interference with the family property can sue to protect his interest, whether with the consent or without the consent of the other members of the family. For if he does not act he may find himself being held to be standing by when his rights were being taken away. See MOZIE vs. MBAMALU (2006) 15 NWLR (PT. 1003) 466; EZEKUDE vs. ODOGWU (2002) 8 NWLR (PT. 784) 366. See the case of ODIMEGWA & ORS vs. IBEZIM & ORS (2019) LPELR-46939 SC, where the apex Court per OKORO, JSC had this to say on the subject:
“With respect to family property as in the instant case, the law is that a member of a family has the capacity to sue to protect family property. Any member of a family whose interest is threatened by wrongful interference with the family property can sue to protect his interest. He can commence the action with or without the consent of other members of the family. If he does not act, he may find himself being held to be standing by when his rights were being taken away. See Dadi v. Garba (1995) 8 NWLR (Pt. 411) 12; Babayeju v. Chief Ashamu (1998) 9 NWLR (Pt.567) 546: In the case of Mozie v. Mbamalu (2006) 15 NWLR (Pt.1003) 466 at 493 this Court, per Tobi, JSC held that “it is good law that members of a family can sue in respect of family property. This was the position of the two Courts below and they are right.”
This is issue is resolved in favour of the Respondents.

The third issue deals with the question of whether the grant of all the reliefs and the alternative reliefs of the Plaintiffs (Respondents) by the Court below does not make the judgment of the Court vague and unenforceable. The position of Appellant is that at page 288 of the records, the learned trial judge made orders for specific performance against the Appellants to review and/or renegotiate the lease agreement with the Respondents and to pay the arrears of rent on a renegotiated/Reviewed rent. In addition, that the Court below made orders of reversion of the said property back to the Respondents as Plaintiffs and finally an order of injunction, restraining the Appellant by himself, assigns, representatives, privies for or through her from further demolishing, reconstruction, removal and moving/parting with the said property without the consent of the Respondents being sought.

The response of the Respondent in regard to this issue is that the 1st and 2nd reliefs of the Respondents have been enforced after the Judgment was delivered and that automatically leaves the other reliefs unenforceable. In addition, that the lease agreement has been re-negotiated by both parties and a rent agreed upon between the parties, but that the Appellant has blatantly, neglected or refused to withdraw this Appeal and that this presents the attitude of the Appellant to be utterly contradictory. As far as this Court is concerned, the enforcement of reliefs 1 and 2 by both parties, having been accomplished, is a clear admission of the Respondents’ claim by the Appellant; as the enforcement of reliefs 1 and 2 leaves the other reliefs unenforceable. This Court has no business with resolving issues which have become either stale or academic. This issue is also resolved in favour of the Respondents.

The fourth issue deals with the question of whether the Court was right in admitting in evidence Exhibit “A” into evidence. The grouse of the Appellant here is that the Court below was wrong to have admitted in evidence Exhibit “A” as the said document was not in anywhere contained in the written deposition of PW1 who sought to tender same, but was objected to by the Appellant’s Counsel and admitted by the Court. Counsel referred this Court to page 264 of the Records on this issue. As far as the Appellant is concerned, pleading does not constitute evidence and that the said document was not properly frontloaded in accordance with the Rules of Court specifically Order 32 Rule 1(3) of the Anambra State High Court Civil Procedure Rules 2006.

Perhaps, in addressing this issue, Court may have to pose a few questions at this stage; the first of which is: whether the document, the said Exhibit “A” was pleaded? The second is whether the said Exhibit “A” is relevant to the facts before the Court and the third is whether the document is ordinarily admissible in evidence? See the case of OKONJI & 3 ORS vs. GEORGE NJOKANMA & ANOR (1999) 12 SCNJ 254 AT 273 cited by learned Respondents’ Counsel. The said Exhibit “A”, is a letter of authority and was pleaded in paragraph 1 of the Statement of Claim, which can be found in page 6 of the Record. The said document having therefore been shown to be relevant to the proceedings before the Court below was therefore properly admitted into evidence as far as this Court concerned. In addition the document has also been shown to have been properly frontloaded, which can be seen in page 15 of the record and it makes the document admissible. This issue is therefore misconceived as it is frivolous. This issue is once again resolved in favour of the Respondents.

The Appellant’s issue five deals with the question of whether the trial Court was right in granting the reliefs of the Plaintiffs who are not parties to the lease agreement. The grouse of the Appellant is that the Respondents are not parties to the lease agreement between Oyeoka Ugboma Okolo and the ACB. The Appellant further contended Respondents never tendered any legally acceptable document particularly the letters of administration, which would have given them authority to legally represent the Lessor. In essence, therefore the Appellant argued that the Respondents are indeed strangers to the said lease agreement and therefore not privy to the said agreement. For the umpteenth time, all that the Respondents have done in this case is to take steps to protect their interests in their family property and this Court cannot fault the Court below for acceding to the requests to so do. The Respondents are entitled to protect their interests in their family property and that does not equate with having to enforce any lease agreements, under which the Appellant has made admissions to having been in violation of.

In issues six and nine argued together, the grouse of the Appellant is anchored on the question of the lower Court’s jurisdiction and whether the trial Court was right to have assumed jurisdiction in a suit with a fundamentally defective writ of summons. The contention of the Appellant here is that there was no claim in the writ of summons pursuant to Order 3 Rule 3 and also that there is no address of service in the writ of summons pursuant toOrder 4 Rule 6(2) of the Rules of Court. The grouse of the Appellant was further anchored on the claim that there is no name and signature of the legal practitioner who originated the suit pursuant to Order 6 Rule 2(3) of the High Court (Civil Procedure) Rules 2006 of Anambra State. It was contended that from the clear provisions of Form 1 of the High Court Rules the writ of summons is defective (See pages 2 and 3 of the Records).

Upon a careful and calm perusal of the records, specifically at page 4, containing the Respondents’/Plaintiffs’ claim, the name and signature of the legal practitioner representing the Respondents/Plaintiffs and the address of service of the Appellant/Defendant can be seen. Apart from this, Order 5 Rule 1 (1 and 2) of the High Court of Anambra State (Civil Procedure) Rules, 2006 makes any non-compliance at the time of the commencement of a suit, where the issue of non-compliance is as to a question of form or manner in which the writ of summons is drafted. The provision is to the effect that every such non-compliance, shall be treated as an irregularity and may not nullify any step taken in the proceedings let alone rob the Court of its Jurisdiction.
What should perhaps, be stated at this stage, is that it is not every irregularity that automatically nullifies an entire proceeding, particularly where the irregularity did not in any way materially affect the merits of the case or occasion miscarriage of Justice especially where the effect of the irregularity is procedural. See the case of ODOM & ORS vs. THE PEOPLES DEMOCRATIC PARTY (2015) LPELR 24351 cited by learned Respondents’ Counsel. See the case of ODU’A INVESTIMENT CO. LTD vs. TALABI (1997) LPELR-2232 SC where the apex Court per OGUNDARE, JSC had this to say on the subject:
“Where, however, the defect does not affect the competence or jurisdiction of the Court, it is a mere irregularity which the Court may ex debito justitiae set aside. As Bairamian FJ put it in Madukolu: “If the Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial; in which case the Appeal Court may not think fit to set aside the judgment. A defect in procedure is not always fatal.” In Mac Foy, Lord Denning delivering the judgment of the Privy Council also said:”…But if an act is only voidable, then it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the Court setting it aside: and the Court has discretion whether to set it aside or not. It will do so if justice demands it but not otherwise. Meanwhile it remains good and a support for all that has been done under it. So will this statement of claim be a support for the judgment, if it was only voidable and not void.”

The issue seven (7) dealing with the question of whether the trial Court was right in dismissing the counter claim of the Appellant, the Appellant contended that the Court below, by not adverting his minds to the counter claim of the Appellant, resulted in indirectly dismissing same and as a result was in error to have done so. The contention of the Appellant was that the counter claim was clearly averred in the pleadings of the Appellant and also given in evidence in the evidence in Chief of PW1. See pages 123 (statement of Defence) and page 128 (written Deposition) of the Records.

The position is, the Respondents as Plaintiffs having established their case, the Court below had no business wasting valuable judicial time in considering a counter claim, which the counter claimant had failed to establish. Having successfully proved the case of the Plaintiffs/Respondents, that automatically displaced the counter-claim of the Defendant/Appellant. The Court below, would have been obliged to consider the counter claim of the Appellants as Defendant-counter claimant only where the Plaintiffs had failed to prove their case. That would have been when it would have been incumbent upon the Defendant/Appellant to step in to prove his counter-claim. The Respondents having proved their case and the Appellant failed to prove his case on preponderance of evidence, it would have been needless waste of time for the Court below consider the counter claim.

The Appellant in their issue nine, complained about the lower Court’s evaluation of the evidence adduced before the Court. A careful perusal of the records clearly shows that the Appellant as Defendant tendered only one document. See pages 133 and 272 of the printed records. The document only shows the merging of the Banks. A further look at pages 284 to 288 of the record shows the lower Court’s evaluation of the evidence presented by both parties and drawing conclusion on them.

The settled position of the law is that it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, and ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse.
An Appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse. See the cases of NWANKPU vs. EWULU (1995) 7 NWLR (PT. 407) 269; AJIBULU vs. AJAYI (2014) 2 NWLR (PT. 1392) 483; IKUMONIHAN vs. STATE (2014) 2 NWLR (PT. 1392) 564.

In the final analysis, this Appeal fails as it is lacking in merit and it is accordingly dismissed. Consequently, the judgment of the Court below, delivered on the 17th day of June, 2013 is hereby affirmed. There shall be cost of N300,000.00 against the Appellant and in favour of the Respondents.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother F. O. OHO, JCA. I agree with his reasoning and conclusion. With fuller reasons give by my learned brother in the leading judgment, I agree that the Appeal be dismissed. I adopt the consequential orders made in the leading judgment as mine.

PATRICIA AJUMA MAHMOUD, J.C.A.: I had the advantage of reading before now the judgment of my learned brother, FREDERICK OZIAKPONO OHO, JCA, in appeal NO. CA/AW/183/2014.
I agree with his Lordship that this appeal lacks merit and should be dismissed. I also dismiss the appeal. I abide with the order made as to costs.