IHUNWO v. AMAMEZE
(2022)LCN/16887(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, March 16, 2022
CA/PH/612M/2017(R)
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
IBEKA IHUNWO APPELANT(S)
And
SYLVESTER AMAMEZE RESPONDENT(S)
RATIO
WHETHER OR NOT A PERSON MUST DEMAND FOR A RELIEF IN A SUBSTANTIVE SUIT BEFORE THE JURISDICTION OF THE COURT IS ACTIVATED
There are repeated decisions of the Supreme Court of Nigeria led by the case of Ekpenyong v Nyong (1975) N.S.C.C. 28 at 32-33 that a party must ask or demand for a relief or prayer in a substantive action or suit or motion, respectively, before the jurisdiction of the Court will be activated to give or withhold the relief or prayer sought as the case may be. In other words, the Court should never award that which was never claimed or pleaded by either party on the footing that a Court of law renders unto everyone according to his proven claim as it is not a donor of charities or a Father Christmas which dishes out unsolicited reliefs or prayers. PER IKYEGH, J.CA.
WHETHER OR NOT LAND CASES ARE DECIDED ON A MERIT
The processes in the application indicate that the dispute is over a piece of land. The Supreme Court emphasized the case of Usikaro and Ors. V Itsekiri Communal Trustees and Ors (1991) 2 NWLR (Pt.171) 150 at 173 following the case of Chief Ntukidem and Ors V Chief Oko and Ors (1986) 5 NWLR (Pt.45) 909 that there is the need to decide land cases on the merit as land matters are very sensitive in most parts of Nigeria and that an uncanny decision in a land case can lead to a breakdown of law and order as the dismissal of a land case has the effect of shutting the door of justice for good for the party adversely affected, more so when the party had not been shown to be tardy in the prosecution of the case.
To quote the Supreme Court per Aniagolu J.S.C., in Ntukidem V Oko (supra) at 922-
“Any person who is acquainted with land dispute in this county and especially in the Eastern States, knows the level of tensions generated by land disputes and how easily the whole thing can degenerate into riots and inter-communal village wars in which, more than not, innocent lives are lost. This emphasises the utmost necessity of hearing those cases on their merits and satisfying the parties that the merits of their contentions have been gone into, critically analysed, and justly decided upon. Anything short of this is an invitation of trouble. But this is not to say that the Courts must shy away from firm and courageous determination of cases before them for fear of intimidatory violent reactions. What it all means is that every effort must painstakingly be made to do justice. A snappy short-cut decision, bereft of an examination of the merits of the case, often settles nothing but rather exacerbates the conflict,”
See also Chukwu V Nneji (1988) 3 NWLR (Pt.81) 184 at 201. PER IKYEGH, J.CA.
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The motion on notice seeks for these prayers-
“1. An ORDER of the Honourable Court for extension of time within which to bring the appeal in this case, the earlier appeal having been struck out by an Order dated 11/02/2013.
2. An ORDER of this Honourable Court setting aside the Order striking out Appeal No. CA/PH/198/2009.
3. An ORDER for the Restoration of Appeal No. CA/PH/198/2009 struck out on 11/02/2013 by the Court on grounds of insufficiency of fees paid in the Court below and thereby declared the appeal incompetent.
4. An ORDER of Interlocutory Injunction restraining the Respondent herein, his agents, privies, servants and any other person deriving authority from him, from selling, transferring title and/or further constructing on the land; subject matter of the appeal, pending the hearing and determination of the Applicant’s appeal.
5. AND for such FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstance of this case.”
The grounds upon which the motion is brought are set out in the body of the motion paper thus-
“i. On 19th Dec., 2008, the High Court of Rivers State, Port Harcourt (“the lower Court”) in Suit No. PHC/445/2003 coram Honourable Justice A.I. Iyayi-Lamikanra delivered its judgment against the Applicant.
ii. Dissatisfied with the decision, the Applicant filed a Notice of Appeal dated 15th Jan., 2009 at the Registry of the lower Court and diligently liaised with the Registry of the lower Court for the transmission and service of the Record of Appeal on the Respondent. The Appeal was entered as Appeal No. CA/PH/198/2009 – Mr. Sunday C. Ihunwo v Sylvester Anameze. Briefs of arguments have also been exchanged inter-parties.
iii. On Tuesday 11th Feb. 2014, the Applicant Appeal No. CA/PH/198/2009 – Mr. Sunday C. Ihunwo v Sylvester Anameze was struck out because the Notice of Appeal in respect of the said Appeal was improperly assessed by the Registrar.
iv. That the time within which the Applicant should appeal has now expired.
v. This Honourable Court is the only Court vested with statutory powers to grant the instant application per the prayers being sought by the Applicant in this application.”
Paragraphs 1-4 of the affidavit in support of the motion deposed thus-
“1. That I am counsel in the chambers of N.W. Nworgu & Col Legal Practitioners duly briefed to prosecute this case.
2. That by virtue of the aforesaid, I am fully seised of the facts of this case.
3. That I have the instruction of my boss, Chief N.W. Nworgu, Esq. and the appellant/applicant to depose to this affidavit.
4. That I was informed by my boss Chief N.W. Nworgu, Esq. counsel to the applicant and the appellant/applicant on 24/10/2017 at about 12.00pm and I believed them to be true.
a. That the appellant/applicant being dissatisfied with the judgment of Rivers State High Court presided over by Hon. Justice Iyayi-Lamikanra delivered on 19/12/2008, filed their Notice and Grounds of Appeal dated 15/01/2009.
b. That the record of appeal was long compiled and transmitted to the Court of Appeal.
c. That both parties to this appeal filed their various briefs of argument as can be gleaned from the file.
d. That on 11/04/2011 the appellant/applicant filed a motion asking for leave of this Honourable Court to amend the Appellant’s Brief of Argument filed on 28/5/2009 and which said motion was granted.
e. That on 11/02/2013 when the Appeal with Appeal No. CA/PH/198/2009 – Mr. Sunday C. Ihunwo V Sylvester Amameze came up for argument the Court of Appeal made an order striking out the appeal of the Appellant/Applicant on the grounds of insufficiency of filing fees contained in the Notice and grounds of Appeal dated and filed on 15/01/2009.
f. That the Appellant/Applicant paid the fees as assessed at the Court below before bringing the Appeal.
g. That the appellant/applicant immediately filed a trinity application on 31/03/2014 and while the motion was pending the appellant (Mr. Sunday Ihunwo) died on 19/08/2014.
h. That on 11/05/2015 the Court granted leave to the applicant to substitute late Sunday Ihunwo being the named appellant in Appeal No. CA/PH/198/2009 with Ibeka Ihunwo – the appellant/applicant.
i. That the appellant/applicant is out of time following the order striking out the appeal on 11/02/2013. The Order striking out the appeal is attached herewith and marked as ANN 1.
j. That the appellant/applicant is also asking the Court to set aside the order striking out the appeal and to restore the said appeal. Amended Briefs of argument having been filed.
k. That the appellant’s/applicant’s Proposed Notice of Appeal and Grounds of appeal is annexed herewith and marked ANN 2 as well as the judgment of the lower Court appealed against if aforesaid and marked as ANN 3.
i. That the purpose of this application is to enable the appellant’s/applicant to exercise his constitutional right of appeal.
m. That the appellant/applicant is ready, willing and able to conduct this matter to the logical end hence this application.
n. That the respondent will not be prejudiced by this application.”
The applicant submitted in the written address filed in support of the application on 15.11.2017 that the appeal had been filed within time and given appeal No. CA/PH/198/2009, but was struck out on 11.02.2014, on grounds of insufficiency and/or deficiency in the payment of the filing fees; upon which the original appellant immediately filed a motion on 31.03.2014, for the trinity prayers; while the motion was pending, the original appellant died on 19.08.2014; the present applicant brought a motion to replace the original appellant which was granted by the Court and that as the said order of substitution was not appealed against, it subsists and that based on the affidavit evidence which is in substantial compliance with Section 113 of the Evidence Act, 2011 (Evidence Act), the application should be granted.
The respondent opposed the motion with a counter affidavit filed on 01.12.2021, and a written address filed on 22.01.2021. The counter affidavit deposed thus-
“1. That I am the person named as the Respondent in this application and by virtue of my position I am conversant with the facts herein deposed to.
2. That I have seen the affidavit of Miss Chika Ugwa, a legal practitioner, deposed on the instructions of the Appellant/Applicant and I deny each and every paragraph of the affidavit.
3. That I was informed by Benjamin Obiora Esq. of counsel at No. 16 Ohiamini Crescent, Rumuola, Port Harcourt on the 30/11/2020 at about 4.00pm and I verily believe him that:
(a) The deponent, Miss Chika Ugwa, a legal practitioner did not show any form of authorization from the Applicant to depose to this contentious affidavit on behalf of the Applicant
(b) By paragraph 3 of the affidavit in support of the motion the deponent, Miss Chika Ugwa, a legal practitioner, only stated that she made the deposition on the instructions of the Applicant, when the application is not filed by a group of persons or a corporate entity and did not show the basis on which the Applicant passed the instructions to her.
4. That paragraphs 1-4 of the affidavit of the Applicant are hereby denied.
5. That I was further informed by Benjamin Obiora Esq. of counsel at No. 16 Ohiamini Crescent, Rumuola, Port Harcourt on the 30/11/2020 at about 4.00pm and I verily believe him that:
(a) This Application is incompetent and constitutes an abuse of Court process for the reason that;
i. The Applicant, IBEKA IHUNWO, was not a party to the judgment sought to be appealed on. See Exhibit ANN 3 attached to the application.
ii. The Applicant described himself in the said motion as the Appellant/Applicant when he knew that he has never had an appeal on this matter before this Court.
iii. By paragraph 4(e) of the affidavit in support of the application, the Applicant admitted that the original appeal filed by Mr. Sunday G. Ihunwo was struck out on his own application on 11/02/2013. This is corroborated by Exhibit ANN 1 in support of the application.
iv. By paragraph 4(g) of the affidavit in support of the application, the Applicant admitted that the Appellant, Mr. Sunday Ihunwo died on 19/08/2014, while his motion to restore his appeal was still pending.
v. By paragraph 4(h) of the affidavit in support of the application, the Applicant stated that on 11/05/2015, the Applicant was purportedly granted leave to be substituted for the late Sunday Ihunwo being the named Appellant in the Appeal No. CA/PH/198/2009.
vi. The said order for substitution granted on 11/05/2015 in respect of Appeal No. CA/PH/198/2009 was NULL and VOID AB INITIO as there was no Appeal No. CA/PH/198/2009 in existence as at the date of the said order for substitution, the said appeal having been struck out on 11/02/2013 and the Appellant therein having died on 19/08/2014.
vii. The order for the substitution must have been granted in error as the Court had no jurisdiction to grant an order for substitution when there was no extant or live appeal before the Court.
viii. The Applicant knew this or ought to know hence in this application, the proposed Notice of Appeal, which is Exhibit ANN 2, attached to the application, the deceased Appellant, Mr. Sunday C. Ihunwo is still stated as the Appellant.
(b) That the prayers or reliefs sought by the Applicant in this Motion cannot be granted by the Court because:
i. The Applicant was not a party to the suit/judgment for which he seeks to appeal on.
ii. The applicant was not a party to the proceedings in which the Appeal No. CA/PH/198/2009 was struck out and lacks locus standi to apply to set same aside
iii. The Applicant was not a party to Appeal No. CA/PH/198/2009 and lacks the capacity to apply to restore same.
iv. The Applicant was not a party in the judgment of Suit No. PHC/445/2003 and lacks the capacity to apply for an injunction to restrain any beneficiary of the judgment.
6. That it will be in the interest of justice to dismiss this application.
7. That I make this affidavit in good faith conscientiously believing its content to be true and correct in accordance with the Oath Act, Cap 01 2004.”
The respondent stated in the written address that the original appellant’s appeal was struck out on 11.02.2013, on the appellant’s own oral application; while the appellant’s appeal was yet to be restored, the appellant died on 19.08.2014; the Court granted the present applicant’s motion for substitution of the deceased appellant, his brother; the present applicant then filed a motion to restore the appeal which was withdrawn and struck out at the instance of the applicant on 09.02.2017; hence the present motion.
The respondent submitted that as at the date the applicant was granted an order of Court on 11.05.2015, for substitution, there was no appeal before the Court and the order granted was obviously in error; that as the present application is predicated on the order of substitution granted to the applicant for a non-existent appeal, the order is a nullity and the Court can set it aside when it discovered that it was given per incuriam or granted without jurisdiction and that the question of the Court being functus officio does not arise vide the case of Central Bank of Nigeria V Hydro Air Property Ltd (2015) ALL FWLR (Pt.765) 227, Abang V Eki (2019) ALL FWLR (Pt.990) 1504, Iyang V Chukwazor (2007) ALL FWLR (Pt.344) 165 AT 184-185, Gyunka V Chane (2019) ALL FWLR (Pt.1014) 22 at 45, PDP V Ezeonwuka (2019) ALL FWLR (Pt.987) 747 at 775.
The respondent submitted that as the order of substitution upon which the present application is predicated is null and nothing can be placed on it, there is no need to apply to have it set aside and that it is better to ignore it vide the cases Adeyemi-Bero V Lagos State Development Property Corporation (2013) ALL FWLR (P.701) P.1447 AT 1508-1509; Unity Bank Plc. V Zango (2013) ALL FWLR (part 658) 912 at 940; International Beer and Beverages Industrial Ltd V Mutunci Company Nig. Ltd (2013) ALL FWLR page 670 page 1253 at 1289; Okoro V State (2012) ALL FWLR part 621 page 1471 at 1494.
The respondent submitted that the applicant was not a party to the proceedings in Appeal No. CA/PH/198/2009 and lacks the capacity to apply to restore the appeal that was struck out on the application of the original appellant, now deceased; neither was the applicant a party to the judgment in suit No. PHC/445/2003 and lacks the capacity to apply for an injunction to restrain any beneficiary of the judgment, so urged the respondent.
The respondent submitted that the present application stands on nothing and constitutes an abuse of Court process; and; that the order of substitution made on 11.05.2015, having been made by inadvertence and in error, should be set aside and the application dismissed for being an abuse of the process of the Court.
There are repeated decisions of the Supreme Court of Nigeria led by the case of Ekpenyong v Nyong (1975) N.S.C.C. 28 at 32-33 that a party must ask or demand for a relief or prayer in a substantive action or suit or motion, respectively, before the jurisdiction of the Court will be activated to give or withhold the relief or prayer sought as the case may be. In other words, the Court should never award that which was never claimed or pleaded by either party on the footing that a Court of law renders unto everyone according to his proven claim as it is not a donor of charities or a Father Christmas which dishes out unsolicited reliefs or prayers.
It is clear in this case that the respondent did not file any motion or action to have the order for substitution set aside. Whatever death-wounds the said order for substitution bears can only be got rid of by either an appeal to the Supreme Court or a motion to have it set aside by the Court. Consequently, the said order for substitution is extant and nothing further need be said about it in the present proceedings, in my modest view.
The respondent cited some cases (supra) tending to suggest that a null order of a superior Court of record, such as the Court, can be ignored without moving the Court to set it aside. The cases (supra) said so in respect of an order of the Court that affected nobody. To extend the ambit of the said decision beyond what it held or stated would be unacceptable. Because as held by the Supreme Court in the case of Aladegbemi v Fasanmade (1988) 3 NWLR (Pt.81) 129 at 155, which I feel obliged to copy below-
“If that Court never had jurisdiction in the matter, then its decision is, without jurisdiction, void, but then should a Court of law not even decide the point? That is, the Court without jurisdiction decided without jurisdiction? Should the decision just be ignored? Surely it would not make for peace and finality which a decision of a Court seeks to attain. It would at least be against public policy for persons, without the backing of the Court, to pronounce a Court decision a nullity, act in breach of the decision whereas others may set out to obey it. In my respectful view, it is not only desirable but necessary to have such decisions set aside first by another Court before any act is built upon it despite the colourful dictum of the law Lord in U.A.C. V MacFoy supra…
The issue here is the manner of application to set aside such decisions.
It is one thing to come to a Court of law and seek the order of that Court to pronounce that an earlier decision of that Court or any other Court is void and should not be built upon and another thing to decide on one’s own that the decision is void and so would not be obeyed. In the long run, it is a Court that will decide the validity vel non of the decision for even in cases where such flagrant disobedience ensues and the person disobeying is brought on contempt charges for disobeying the order of the Court, and his pleas is that the order he is accused of disobeying is void and so he could not be held in contempt of a void order, the second Court still has to decide on the voidity vel non of the earlier order. For this reason, I cannot, with respect limit reaction to such order, as one that is desirable to be set aside. I think it is necessary still that it be set aside.”
The Supreme Court further held per the lead judgment prepared by Agbaje, J.S.C., in Aladegbemi v Fasanmade (supra) at 146-147 placing reliance on the English case of Skinner V Carter (1948) 1 Ch. 387 that an order made by a Court of competent jurisdiction even in ignorance of some essential fact which went to the validity of the order was not void or a nullity and the order stood and could not be ignored until it was set aside.
The facts are not in dispute and are accordingly established that the original appellant filed the appeal within time in accordance with the assessment of filing fees by the registry staff of the lower Court. It was discovered that there was a shortfall of N3,000 filing fees. The learned counsel to the appellant drew the attention of the Court to it at the time the appeal was called for hearing and urged that the appeal be struck out. The respondent did not oppose the application. The appeal was then struck out.
In the interim, the original appellant died. The present applicant sought for and obtained the leave of the Court to replace him. Upon replacement, the applicant filed the present application. These facts established that the applicant and his late brother were not tardy in respect of the prosecution of the case. The grounds of appeal attached to the application appear on the surface to be arguable. Both conditions are therefore met for the present application to succeed on prayer 1 of the motion paper (supra).
The processes in the application indicate that the dispute is over a piece of land. The Supreme Court emphasized the case of Usikaro and Ors. V Itsekiri Communal Trustees and Ors (1991) 2 NWLR (Pt.171) 150 at 173 following the case of Chief Ntukidem and Ors V Chief Oko and Ors (1986) 5 NWLR (Pt.45) 909 that there is the need to decide land cases on the merit as land matters are very sensitive in most parts of Nigeria and that an uncanny decision in a land case can lead to a breakdown of law and order as the dismissal of a land case has the effect of shutting the door of justice for good for the party adversely affected, more so when the party had not been shown to be tardy in the prosecution of the case.
To quote the Supreme Court per Aniagolu J.S.C., in Ntukidem V Oko (supra) at 922-
“Any person who is acquainted with land dispute in this county and especially in the Eastern States, knows the level of tensions generated by land disputes and how easily the whole thing can degenerate into riots and inter-communal village wars in which, more than not, innocent lives are lost. This emphasises the utmost necessity of hearing those cases on their merits and satisfying the parties that the merits of their contentions have been gone into, critically analysed, and justly decided upon. Anything short of this is an invitation of trouble. But this is not to say that the Courts must shy away from firm and courageous determination of cases before them for fear of intimidatory violent reactions. What it all means is that every effort must painstakingly be made to do justice. A snappy short-cut decision, bereft of an examination of the merits of the case, often settles nothing but rather exacerbates the conflict,”
See also Chukwu V Nneji (1988) 3 NWLR (Pt.81) 184 at 201.
Similarly, it is a punishment to deny a deserving party a right to contest his case on appeal as the appellate system of justice is put in place to ensure that whenever feasible and appropriate errors committed in the course of an appealable decision should be put right by an appellate Court. See in particular the Supreme Court case of Stanbic IBTC PLC V LGC Ltd. (2017) 18 NWLR (Pt.1598) 431 at 449 to the effect that denial of extension of time to appeal may constitute a “big punishment” for a potential appellant as the applicant would have lost the chance of exercising his important constitutional right of appeal to have the appeal heard on the merits.
On the whole, I find substance in the application and hereby grant it in terms of prayer 1 of the motion paper (supra) only.
The applicant is entitled to file the proposed notice of appeal attached to the motion paper at the registry of the Court since the record of the appeal had earlier been compiled and transmitted to the Court before the said appeal was struck out and which record of appeal, to save time and cost, should be used in prosecuting the present appeal with a new appeal number assigned by the registry of the Court to the appeal vide Shell Petroleum Development Company of Nigeria Ltd (SPDCN Ltd.) v Agbara (2016) 2 NWLR (Pt.1496) 353 at 412 to the effect that where leave is granted to an applicant to file his notice of appeal, and/or, where the appeal has already been entered at the appellate Court (by the compilation and transmission of the record of appeal to the registry of the appellate Court) the appellant shall file his notice of appeal at the registry of the appellate Court. See also the case of Poroye V Makarfi (2018) 1 NWLR (Pt.1599) 91 at 146-147.
Accordingly, the notice of appeal attached to the motion paper shall be filed at the registry of the Court within 14 days from today.
Since the appeal that was struck out cannot be restored because of the vice of the shortfall of the filing fees that afflicted it is still attached to it, the prayer for the restoration of the appeal with respect to the appeal which still bears the name of the deceased appellant who had been substituted and is as such not in the name of the applicant, will be incongruous.
Prayer 4 of the motion paper states at the tail-piece thereof that the prayer for interlocutory injunction should operate pending the determination of the appeal. The prayer is presumptuous. There is no pending appeal. Until the notice of appeal is filed before a prayer pending the determination of the appeal will inure. It is upon the filing of an appeal or giving an undertaking to file notice of appeal that such prayers may become viable to be canvassed and granted, in appropriate cases, pending the determination of the appeal vide Intercontractors Nig. Ltd. V U.A.C. (1988) 2 NWLR (Pt.76) 303.
I think following the case of Bashorun V Chief of Army Staff (1989) 5 NWLR (Pt.123) 590 at 596, whether a prayer is for a stay of execution or a stay of proceedings or an injunction pending appeal, same has similar effect of suspension of any proceedings in relation to the matter and cannot precede the filing of an appeal. Prayers 2, 3 and 4 of the motion paper are, accordingly, incompetent and are hereby struck out. Parties shall bear their costs.
PAUL OBI ELECHI, J.C.A.: My learned brother Joseph Shagbaor Ikyegh, JCA afforded me the opportunity of reading the draft copy of the ruling just delivered.
I agree with his reasoning and conclusion contained therein in which I adopt as mine in holding that prayers 2, 3 and 4 of the motion paper are incompetent and are hereby struck out.
I abide by the order as to no cost.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I read the draft of the ruling delivered by my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA.
I agree with the reasoning and order stated in the ruling, which I hereby adopt as mine.
Appearances:
Chief N.W. Nworgu For Appellant(s)
Mr. B. Obiora For Respondent(s)
