JASE MOTORS (NIG) LTD v. ROSAKET GLOBAL VENTURES (NIG) LTD & ORS (2020)

JASE MOTORS (NIG) LTD v. ROSAKET GLOBAL VENTURES (NIG) LTD & ORS

(2020)LCN/14654(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Wednesday, October 28, 2020

CA/IL/96/2019

RATIO

APPEAL: DISCRETION OF THE APPELLATE COURT TO FORMULATE ITS OWN ISSUES

The law is trite, an appellate Court has a wide discretion in deciding which issue or issues for determination in briefs of argument are to be considered and resolved in the determination of an appeal. The appellate Court can either consider all the issues in all the briefs of argument or those contained in the appellant’s brief of argument or those contained in the respondents’ brief of argument. Furthermore, where desirable and necessary, having due regard to the issues contained in all the briefs of argument, the Court, if not satisfied that the resolution of same cannot determine the appeal justly and fairly, it can formulate its issues for determination differently from those contained in the parties’ briefs of argument, provided, the issues formulated by the Court are predicated on the grounds in the Notice of Appeal filed by the appellant. PER BDLIYA, J.C.A.

APPEAL: ATTRIBUTES OF ISSUES FOR DETERMINATION

Issues for determination in an appeal must be concise, precise, comprehensible and devoid of verbosity or arguments. PER BDLIYA, J.C.A.

APPEAL: MEANING OF FRESH ISSUES

There are litany of decided cases by the superior Courts where what is meant by fresh issue on appeal has been defined, examined, and considered so as to leave no one in doubt as to what it means. For instance, in Kano Textile Printers Plc. v. Gloede & Hoff Nig. Ltd (2002) 2 NWLR (Pt. 751) 420 at 448, this Court stated that:
“A fresh issue on appeal is an issue which was not canvassed at the trial and pronounced upon by the trial Court”.
A fresh issue or point of law is one which has not been raised by any of the parties at the trial of the case. See Director on PC Ltd vs. SOF Ltd (2011) 10 NWLR (Pt. 1256) P. 442 @ 454. The prerequisite to raising a fresh issue not canvassed at the lower Court on appeal is to apply for and obtain leave of Court. See Director on PC Ltd v. SOF Tech. Ltd (2011) 10 NWLR (Pt. 1256) P. 442 @ 454. PER BDLIYA, J.C.A.
APPEAL: CONDITIONS WHERE FRESH ISSUES CAN BE RAISED ON APPEAL

The conditions or circumstances under which an issue not specifically canvassed at the trial may be allowed to be raised on appeal for the first time are:
(a) The point of law raised must be substantial;
(b) No further evidence would be adduced which will affect the new point;
(c) The refusal to grant leave to argue the fresh point will occasion a miscarriage of justice. See Direct on Plc vs. SOF Ltd (2011) 10 NWLR (Pt. 1256) P. 442 @ 454.
The rationale for this principle of law is that it is not the business of an appellate Court to decide disputes by trying cases. That is an exclusive preserve of a trial Court. The duty of the appellate Court is to see whether a trial Court applied the correct law and procedure to arrive at the right decision. Since an appellate Court does not inquire into disputes, it is desirable for the Court to have the benefit of the opinion of the trial Court on every point taken on appeal. PER BDLIYA, J.C.A.

COURT: DUTY OF COURT TO CONSIDER ALL ISSUES RAISED BEFORE IT

On the principles of law, that a Court of law is duty bound to consider all issues raised before it before arriving at a final decision, I consider the postulation by Paul Nkemdilim Nwokedi JSC (of blessed memory) in Okonji vs Njokanma supra, to be apt in the determination of the extant case on appeal before us. His Lordship espoused thus as recorded on page 155 of the record of appeal:
“The Court of Appeal was under a duty to consider and determine all issues placed before it for determination.”
In Uka vs Irolo (1996) 4 NWLR Pt. 441 P.218 @ 236, the Court of Appeal, held that, it is the duty of a Court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. If the Court failed to do so without a valid reason, then it has certainly failed in its duty, for it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve such question. PER BDLIYA, J.C.A.

Before Our Lordships:

Ahmad Olarewaju Belgore Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Between

JASE MOTORS (NIGERIA) LTD APPELANT(S)

And

1. ROSAKET GLOBAL VENTURES NIG LTD 2. ENGR. PHILIPS AMZAT BELLO 3. MRS. SUSAN MALOMO BELLO RESPONDENT(S)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): The appellant, JASE MOTORS (NIGERIA) LTD, previously known and called JIMKAH AUTOMOBILE SERVICES ENGINEERING (NIGERIA) LTD, a limited liability company established and registered under the Company and Allied Matters Act, was the owner and title holder of all that parcel of land situate and lying at Western Reservoir, Olorunsogo Area, Ilorin, Kwara State, covered by Certificate of Occupancy No 2995. The respondents claimed to have purchased the said property from the appellant at various dates. The 1st respondent (as claimant) instituted suit No: Kws/208/2012 against the 2nd and 3rd respondents, and later on joined the appellant (as the 3rd respondent) in the suit before the lower Court.

Pleadings were filed and exchanged by the parties. The suit proceeded to trial, whereat, evidence was taken and learned counsel addressed the Court. On the 6th of May, 2019, the learned judge of the lower Court delivered his judgment wherein all the reliefs sought by the 1st respondent were granted. The counter-claims by the appellant and the 2nd and 3rd respondents were

dismissed for being unmeritorious. The appellant, dissatisfied with the judgment of the lower Court, filed Notice of Appeal to this Court on the 15th of June, 2019, challenging the judgment on four (4) grounds of appeal. The four (4) grounds of appeal, are contained on pages 462 to 463 of the printed record of appeal, which are reproduced hereunder:
“GROUND ONE (1)
The learned Trial Judge erred in law in refusing to hold or determine the issue of the different name of the company which entered into the deed of assignment with the 1st Respondent, which is different from the name of the Appellant.
PARTICULARS
(i) The Appellant raised in paragraphs 4:22-4:25 the issue of its name being JASSE MOTORS (NIGERIA) LIMITED.
(ii) The Deed of Assignment of the 1st Respondent has the name of “JASSE MOTORS LIMITED”.
(iii) The statement of claim of the 1st Respondent stated in paragraphs 3, 6, 7, 8, 9, 11, 12, 13 that the land was sold to them by JASSE MOTORS LIMITED.
(iv) The 1st Respondent led evidence on JASSE MOTORS LIMITED.
GROUND TWO (2)
The Learned Trial Judge erred in law when he held that the Appellant

neither died nor ceased to exist on the striking off from the register of Companies, when it transacted the business of assigning part of its land to the 1st Respondent.
PARTICULARS
(i) The Appellant gave evidence of the striking off of the name of the Appellant by Corporate Affairs Commission as at the time part of its land was assigned and sold to the 1st, 2nd and 3rd Respondents.
(ii) The time when the Appellant was restored back to the register was also led in evidence.
(iii) The Company whose name has been struck off from the register of Companies ought not to have transacted business.
GROUND THREE (3)
The Learned Trial Judge erred in law when he held that the failure to hold meeting and evidence of resolution of the Company to sell its assets is an internal affair of the Appellant and not against the sale of its land in question.
PARTICULARS
(i) There is no evidence of meeting nor Company resolution before the sale of the land to 1st Respondent.
(ii) The Chairman Managing Director is different from the Company (Appellant).
GROUND FOUR (4)
The Judgment is against the weight of

Evidence.”

The appellant sought the following reliefs in the event of the appeal succeeding:
(i) An order declaring the Judgment delivered on the 6th day of May, 2019 by the Kwara High Court sitting in Ilorin and presided over by Hon. Justice M. Abdulgafar as null and void and that the judgment be set aside and the Appeal be allowed.
(ii) An order giving judgment to the Appellant in relation to its counter-claim.

In compliance with the Rules of Court, 2016, the parties filed briefs of argument. The appellant’s brief of argument was filed on the 4th of September, 2019. On page 3 thereof, three (3) Issues for determination of the appeal have been distilled from the four (4) grounds of appeal. The 1st respondent filed brief of argument on the 17th of January 2020, out of the prescribed period, which was deemed properly filed and served on the 9th of July 2020, by order of the Court. On page 2 thereof, two (2) Issues for determination have been culled out of the grounds of appeal. The 2nd and 3rd respondents did not file briefs of argument. The appellant, in response to the arguments canvassed in the 1st respondent’s brief of

argument filed a reply brief on the 13th day of July, 2020.

Issues for determination in an appeal must be concise, precise, comprehensible and devoid of verbosity or arguments. Issues 1, 2, 3 contained in the appellant’s brief of argument, and the two issues in the 1st respondent’s

brief of argument are not dissimilar, they can hardly been differentiated like siamese twins. Therefore, the said issues referred to supra are hereunder amalgamated and compressed into 3 issues to be resolved in the determination of the appeal:
(i.) Whether the failure of the learned judge of the lower Court to determine the correct or proper name of the appellant is JASE MOTORS (NIGERIA) LIMITED or JASSE MOTORS LIMITED or JASE MOTORS NIGERIA LIMITED is fatal, which occasioned a miscarriage of justice to the appellant in the determination of the dispute in favour of the 1st respondent? (Ground 1)
(ii.) Whether the learned judge of the lower Court was right when he held that the appellant was neither dead nor in existence, when its name was struck out of the register of companies at the time the title to the disputed parcel of land was vested in the 1st respondent. (Ground 2)
(iii.) Whether the learned judge of the lower Court was right when he dismissed the counter-claim of the appellant (as counter-claimant), and arrived at the decision that the 1st respondent proved his claim on the preponderance of evidence, and granted same? (Grounds 3 and 4).

RESOLUTION OF ISSUES
ISSUE ONE (1)
Professor A. Amuda-Kannike, SAN, of learned senior counsel, who settled the appellant’s brief of argument, did contend that the lower Court ought to have resolved the issue of the proper name of the appellant which was raised before it. Learned senior counsel referred to the judgment of the lower Court wherein the issue as to the proper name of the appellant was alluded to and submitted that same was not resolved by the learned judge. It is learned senior counsel’s contention that had the issue of the proper name of the appellant been ascertained, the judgment of the Court would have been in its favour.

Submitting further, learned senior counsel pointed out that, any issue raised by the parties to a dispute must be resolved by the Court. That where a Court fails to consider an issue raised before it, an appellate Court has a duty to remit same to the lower Court as espoused in the cases of Okonji vs Njokanma (1991) 7 NWLR Pt. 202 P.131 @ 146; Uka vs Irolo (1996) 4 NWLR Pt. 441 P.218 @ 235 and Atanda vs Ajani (1989) 3 NWLR Pt.111 P.511.

Referring to the 1st respondent’s statement of

claim, learned counsel submitted that JASSE MOTORS LIMITED was stated to be the name of the appellant not JASE MOTORS (NIGERIA) LTD as could be gleaned in paragraphs 7 and 11 of the statement of claim on page 6 lines 16 to 19 and page 7 lines 10 to 12 of the record of appeal.

Again, learned senior counsel, did submit that the first witness to the 1st respondent in his witness statement on Oath, deposed that the person who sold the parcel of land to the 1st respondent was JASSE MOTORS LIMITED not JASE MOTORS (NIGERIA) LIMITED. It is learned senior counsel submission that even on the title documents, the name JASSE MOTORS LIMITED had been used instead of JASE MOTORS (NIGERIA) LTD, the proper legal name of the appellant. Concluding, learned senior counsel submitted on page 6 of the appellant’s brief of argument that, there is doubt as to who actually sold the parcel of land to the 1st respondent, which doubt has not been resolved or clarified in the judgment of the lower Court. This Court has been urged to resolve Issue 1 in favour of the appellant.

For the 1st respondent, B.R Gold Esq., of learned counsel who settled the brief of argument, did

submit that the issue of doubt created in the name of the appellant, whether it is JASSE MOTORS NIGERIA LTD or JASE MOTORS (NIGERIA) LTD was not raised before the lower Court.
Submitting further, learned counsel adumbrated that even if the name of the appellant is JASE MOTORS (NIGERIA) LTD instead of JASSE MOTORS LIMITED as contained in the Deed of Assignment, such is a misnomer, which is of no consequence or effect as espoused in the case of Obasi vs Mikson Establishment (Ind) Ltd (2005) All FWLR Pt. 250 P.164. Even if there was a mistake on the name of the appellant, it was contended that it is a mere technicality, which is of no consequence, rather, the Court should do substantial justice devoid of technicality as espoused in Alh Badamasi Kabir vs Action Congress & Ors (2012) All FWLR Pt. 647 P.674.

Concluding, learned counsel submitted that the issue of the correct name of the appellant was not an issue before the lower Court, therefore, no miscarriage of justice was occasioned to the appellant, even if same was not considered and resolved at the trial before the lower Court. This Court has been urged to resolve Issue 1 against the appellant.

Responding to the arguments canvassed in the 1st respondent’s brief of argument, learned senior counsel did contend that the principle of law espoused in the cases of Obasi vs Mikson Establishment (Ind) Ltd and Alh Badamasi Kabir vs Action Congress & Ors relied on by the learned counsel to the 1st respondent are not applicable to the extant case on appeal, and did urge same be discountenanced in the determination of this appeal. That the application of the name of the appellant as JASSE MOTORS NIGERIA LTD, instead of JASE MOTORS (NIGERIA) LTD, cannot be a mere technicality being a legal document, same be taken as it is without any additional or further inferences by the parties as urged by the learned counsel to the 1st respondent.

Now, the contention of the learned counsel to the 1st respondent is that the issue of whether the name of the appellant is “JASE MOTORS (NIGERIA) LIMITED, not JASSE MOTORS LIMITED” was not raised at the trial before the lower Court. Therefore, same cannot be raised before this Court on appeal, without first seeking and obtaining leave of Court to do so. There are litany of decided cases by

the superior Courts where what is meant by fresh issue on appeal has been defined, examined, and considered so as to leave no one in doubt as to what it means. For instance, in Kano Textile Printers Plc. v. Gloede & Hoff Nig. Ltd (2002) 2 NWLR (Pt. 751) 420 at 448, this Court stated that:
“A fresh issue on appeal is an issue which was not canvassed at the trial and pronounced upon by the trial Court”.
A fresh issue or point of law is one which has not been raised by any of the parties at the trial of the case. See Director on PC Ltd vs. SOF Ltd (2011) 10 NWLR (Pt. 1256) P. 442 @ 454. The prerequisite to raising a fresh issue not canvassed at the lower Court on appeal is to apply for and obtain leave of Court. See Director on PC Ltd v. SOF Tech. Ltd (2011) 10 NWLR (Pt. 1256) P. 442 @ 454.
The conditions or circumstances under which an issue not specifically canvassed at the trial may be allowed to be raised on appeal for the first time are:
(a) The point of law raised must be substantial;
(b) No further evidence would be adduced which will affect the new point;
(c) The refusal to grant leave to argue the fresh point

will occasion a miscarriage of justice. See Direct on Plc vs. SOF Ltd (2011) 10 NWLR (Pt. 1256) P. 442 @ 454.
The rationale for this principle of law is that it is not the business of an appellate Court to decide disputes by trying cases. That is an exclusive preserve of a trial Court. The duty of the appellate Court is to see whether a trial Court applied the correct law and procedure to arrive at the right decision. Since an appellate Court does not inquire into disputes, it is desirable for the Court to have the benefit of the opinion of the trial Court on every point taken on appeal.

Was the issue of the name of the appellant who allegedly sold the parcel of land in dispute to the 1st respondent not raised before the lower Court? A recourse to the Court processes and the proceedings of the lower Court in conducting the hearing of the dispute is pertinent at this juncture. In paragraphs 3, 6, 7, 8, 9, 11, 12, 13 and 14 of the statement of claim, the 1st respondent averred as follows:
“(3) The Claimant avers that sometime in April, 2009, one Barrister Gambari Abubakar approached the claimant through one Alhaja Ramatu Ojuolape Yusuf who is

the Managing Director of the claimant, that there was a piece of land belonging to one Messr Jasse Motors Limited, for sale if the claimant would have interest in its purchase.
(6) The Claimant avers that upon enquires and searches, it was discovered that Jasse Motors Limited was the owner of a vast area of land at along Western Reservoir Road, Olorunshogo area, Ilorin, Kwara State and that the part sought to be sold by Jasse Motors Limited was part of the said vast area of Land.
(7) The Claimant avers that it was also discovered that the entire land of Jasse Motors Limited was covered by a Certificate of Occupancy No. KW.2995 issued by the Kwara State Government in favour of Jesse Motors Limited.
(8) The Claimant avers that the Claimant through its Managing Director, (Alhaja Ramatu Ojuolape Yusuf), Barrister Gambari Abubakar and the agents of the said Jasse Motors Limited then met the Managing Director of Jasse Motors Limited, one Alhaji Kolawole Jimoh, to confirm the willingness of Jasse Motors Limited to sell the land aforesaid.
(9) The Claimant avers that the said Alhaji Kolawole Jimoh confirmed the willingness to sell the part of Jasse Motors

Limited’s land shown to the claimant for a sum of N3,500,000:00 (Three Million, Five Hundred Thousand Naira) only.
(11) The Claimant avers that the land measuring 2499.798 sqm out of the vast area of land belonging to Jasse Motors Limited was then sold by Jasse Motors Limited to the claimant.
(12) The Claimant avers that subsequent upon the sale, a deed of assignment dated the 24th day of April, 2009 was then executed between Jasse Motors Limited and the claimant. A certified True Copy of the deed is hereby pleaded.
(13) The Claimant avers that apart from the deed of assignment executed between Jasse Motors Limited and the claimant, there was also a video recording of the collection of the sum of N3,500,000.00 only, from the claimant by Alhaji Kolawole Jimoh, the Managing Director of Jasse Motors Limited and of the execution of the deed of assignment by the respective parties in the deed of assignment. The video recording is hereby pleaded. The Claimant shall rely on same at trial.
(14) The Claimant aver that in compliance with the requirement of the Land Use Act, on 5th January, 2010, Jasse Motors Limited applied to the Kwara State

Bureau of Lands, Ilorin for the approval of the assignment of the part of its land covered by Certificate of Occupancy No. KW.2995 in favour of the claimant. The Claimant pleads a certified true copy of the application.”

Paragraphs 4, 7, 8, 9, 10, 12 and 13 of the written statement on Oath of the Alhaja Ramatu Ojuolape Yusuf who deposed to the facts contained therein, in support of the averments contained in the statement of claim are as follows:
“(4) Sometime in April, 2009, one Barrister Gambari Abubakar approached me and informed me that there was a piece of land belonging to one Messr Jasse Motors Limited, for sale if the claimant would have interest in purchasing the same.
(7) Upon enquires and searches, it was discovered that Jasse Motors Limited was the owner of a vast area of land at along Western Reservouir Road, Olorunshogo area, Ilorin, Kwara State and that the part sought to be sold by Jasse Motors Limited was part of the said vast area of Land.
(8) It was also discovered that the entire land of Jasse Motors Limited was covered by a Certificate of Occupancy No. KW.2995 issued by the Kwara State Government in favour of

Jasse Motors Limited.
(9) Barrister Gambari Abubakar, myself and the agents of the said Jasse Motors Limited then met the Managing Director of Jasse Motors Limited one Alhaji Kolawole Jimoh to confirm the willingness of Jasse Motors Limited to sell the land aforesaid.
(10) The said Alhaji Kolawole Jimoh confirmed the willingness to sell that part of Jasse Motors Limited’s land shown to me for a sum of N3,500,000.00 (Three Million, Five Hundred Thousand Naira) only.
(12) The land measuring 2499.798 sqm out of the vast area of land belonging to Jasse Motors Limited was then sold by Jasse Motors Limited to the claimant.
(13) Subsequent upon the sale, a deed of assignment dated the 24th day of April, 2009 was then executed between Jasse Motors Limited and the claimant. I can identify the certified True copy of the deed if shown to me. I seek to tender it in evidence.”

The Deed of Assignment of the title in respect of the disputed parcel of land to the 1st respondent is on page 33 of the record of appeal. The said legal document stated as follows:
“This AGREEMENT is made this ……. day of

……… 2009.
BETWEEN: JASSE MOTORS LIMITED of Along Western Reservoir Road, Olorunshogo Area, Ilorin, Kwara State of Nigeria (hereinafter called “THE ASSIGNOR” which expression shall where the context so admits include her heirs, assigns, executors, administrators, personal representatives and successors-in-title) of the first part.
AND: ROSAKET GLOBAL VENTURES NIG. LTD. of No. 208, Umaru Saro Road, Opposite Geri Alimi Hospital, Ilorin, Kwara State of Nigeria (hereinafter called “THE ASSIGNEE” which expression shall where the context so admits include her helps, assign, executors, administrators, personal representatives and successors-in title) of the other part.” (Underlining for emphasis)

The appellant (as the 3rd defendant) at the lower Court filed statement of defence and counter-claimed against the 1st respondent and averred in paragraph 2 thereof thus:
“The 3rd defendant was previously known and called JIMKAH AUTOMOBILE SERVICE ENGINEERING (NIGERIA) LIMITED which named was changed by special Resolution changing its name to JASE MOTORS (NIGERIA) LIMITED, it applied through

“STACOM NOMINEES LIMITED on behalf of the 3rd defendant and same was approved by Federal Ministry of Trade, commercial Law Division, Companies Registry, via the letter dated 10th November, 1975. The copies of the letters dated 1st July, 1974 and 10th November, 1975 and Certificate of incorporation of the company are hereby pleaded.” (Underlining for emphasis)

The appellant (as the 3rd defendant) at the lower Court filed a Reply to the defence to the counter-claim and in paragraph 8 and 9 thereof averred as follows as recorded on page 257 of the record of appeal:
“(8) The 3rd Defendant avers that JASE MOTORS (NIGERIA) LIMITED with registration Number RC10953 is not the same as JASE MOTORS LIMITED. The property in dispute belongs to JASE MOTORS (NIGERIA) LIMITED (the 3rd Defendant). (Underlining for emphasis)
(9) The 3rd Defendant avers that there was no time it sold, alienated or assigned any part of its land to the claimant and no letter was written on its behalf in 2010 to that effect.”

The learned senior counsel to the appellant (then 3rd defendant) filed a final written address before the lower Court and in

paragraphs 4:22, 4:23 and 4:24 contended as follows, which can be located on page 318 of the record of appeal:
“ON THE REAL NAME OF THE 3RD DEFENDANT
4:22 My Lord, the real name of the 3rd Defendant as can be found in its registration certificate and here before my Lord is;
“JASE MOTORS (NIGERIA) LIMITED”
4:23 My Lord, a cursory look at the Deed of Assignment of the claimant revealed they entered into a Deed of Assignment with;
“JASSE MOTORS LIMITED”
4:24 My Lord, from the above analysis, the two companies are not one and the same and no amount of speculation can make them to be same my Lord.”

The learned judge of the lower Court when considering the issue of the incorrect name of the appellant (then 3rd defendant) as raised by the pleadings, evidence and address of counsel had this to say as recorded on page 450 of the record of appeal:
“Arguing issue 1, the learned SAN contends that the claimant’s attempt to prove ownership of the land in dispute as regards who sold to him has failed because JASSE MOTORS LIMITED who sold the land to him is not the 3rd

defendant.
The point is made that the correct name of the 3rd defendant as evidenced by its certificate of incorporation is JASSE MOTORS (NIGERIA) LTD. The Court is urged to hold that the claimant bought the land from a different and non-existing entity different from the 3rd defendant. See A.C.B. PLC. V. EMOSTRADE LTD (2002) FWLR (PT. 104) 540.”

In view of the foregoing elucidation, can it be said that the issue of the incorrect or otherwise true name or identity of the appellant (as 3rd respondent) was not raised before the lower Court as contended by the learned counsel to the 1st respondent? I do not think so. The averments contained in paragraphs 3, 6, 7, 8, 9, 11, 12, 13 and 14 of the statement of claim of the 1st respondent (as claimant); The depositions in paragraphs 3, 7, 8, 9, 10, 12 and 13 of the written statement on Oath of Alhaja Ramatu Ojuolape Yusuf; the first paragraph of the Deed of Assignment; Paragraphs 8 and 9 of the appellant’s (as 3rd respondent and counter claimant) Reply to the defence and counter claim of the 1st and 2nd respondents; the arguments canvassed by learned senior counsel to the appellant in the

written final address and the adumbration by the learned judge of the lower Court on the submissions made by the learned SAN on the uncertainty of the correct name of the appellant, are sufficient to establish that the issue of the correctness or otherwise of the appellant was raised before the lower Court.

Did the learned judge of the lower Court consider and resolve the conflicting names of the appellant raised by both learned counsel to the appellant and the 1st and 3rd respondents in their respective briefs of argument? The learned judge of the lower Court in considering the issue raised on the correct name of the appellant stated as follows as recorded on page 450 of the printed record of appeal:
“Arguing issue 1, the learned SAN contends that the claimant’s attempt to prove ownership of the land in dispute as regards who sold to him has failed because JASSE MOTORS LIMITED who sold the land to him is not the 3rd defendant.
The point is made that the correct name of the 3rd defendant as evidenced by its certificate of incorporation is JASSE MOTORS (NIGERIA) LTD. The Court is urged to hold that the claimant bought the land from a different

and non-existing entity different from the 3rd defendant. See A.C.B. PLC. V. EMOSTRADE LTD (2002) FWLR (PT. 104) 540.”

The summation of the argument canvassed by the learned counsel to the appellant by the learned judge of the lower Court reproduced supra, cannot be the consideration and taking a decision on the issue raised as envisaged by the law as postulated in the case of Okonji vs Njokanma (1991) 7 NWLR Pt. 202 P.131 @ 146, wherein M.L Uwais Ag. CJN (as he was then) enunciated that:
“As it was held in EBBA V. OGODO AND ANOR (1984) 1 SCNLR 372, (1984) NSCC (VOl.15) 255, that a Court of appeal should not deal with issues not before it; so also when a party submits an issue to the Court for determination the Court must make a pronouncement on that issue except where the issue is subsumed in another issue.”
On the principles of law, that a Court of law is duty bound to consider all issues raised before it before arriving at a final decision, I consider the postulation by Paul Nkemdilim Nwokedi JSC (of blessed memory) in Okonji vs Njokanma supra, to be apt in the determination of the extant case on appeal before us. His

Lordship espoused thus as recorded on page 155 of the record of appeal:
“The Court of Appeal was under a duty to consider and determine all issues placed before it for determination.”
In Uka vs Irolo (1996) 4 NWLR Pt. 441 P.218 @ 236, the Court of Appeal, held that, it is the duty of a Court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. If the Court failed to do so without a valid reason, then it has certainly failed in its duty, for it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve such question.
The learned judge of the lower Court did not consider and resolve the issues raised by the learned senior counsel as to whether the appellant’s name at the material time the land was sold to the 1st respondent was JASSE MOTORS LIMITED or JASE MOTORS (NIGERIA) LIMITED before arriving at the decision that the 1st respondent proved its case on the preponderance of evidence and granted all the reliefs sought in the statement of claim. The position of the law is settled as

enunciated in the case of Okonji vs Njokanma supra at page 151 that:
“Where a Court failed to consider an issue properly submitted to it, the proper order will be one remitting the case back to the Court for a proper consideration of all the issues raised. (Ezeoke v. Nwagbo (1988) 1 NWLR (Pt. 72) 616 at 627).”
On page 150 of Okonji vs Njokanma supra, Uwais Ag. CJN (as he then was) reinforced the position of the law regarding the failure of a Court of law to consider and take a decision on a matter or issue raised before it in these words:
“In the present case the Court of Appeal failed to consider the issue on the admissibility of Exhibit D on the wrong premise that there was neither a ground of appeal nor argument properly advanced in support of the issue. As already shown, this finding is certainly perverse. In a situation, such as the present, the proper order to be made by this Court is for the case to be remitted to the Court of Appeal, so that all the issues raised by the parties may be properly considered – See Ezeoke& Ors. v. Nwagbo & Ors., (1988) 1 N.S.C.C. 414 at p. 424; (1988) 1 N.W.L.R. (Pt. 72) 616 at

627.”
A Court of law must always give full and dispassionate consideration to all issues raised or canvassed before it. Where a Court failed to consider an issue properly submitted before it, the proper order to make will be one remitting the case back to the trial Court for a proper consideration of issues raised. See the cases of Okonji vs Njokanma (1991) 7 NWLR Pt. 202 P. 131 @ 146; Uka vs Irolo (1996) 4 NWLR Pt. 441 P.218 @ 235 and Atanda vs Ajani (1989) 3 NWLR Pt. 111 P.511.
The failure of the learned judge of the lower Court to consider and take a decision on the conflicting names of the appellant as contained in the statement of claim; the written statement on Oath of the witnesses; the Deed of Assignment and the averments contained in the Reply to the defence and the counter claim of the appellant to the claim of the 1st respondent, tantamount to a denial of fair hearing to the appellant, because a party to a dispute before a Court of law is entitled to be heard in respect of his complaint which he has put before the Court. The foregoing postulations have been reinforced by Babalakin J.S.C in the case of Okonji vs Njokanma supra, on

page 152, where the learned Justice adumbrated thus:
“Be that as it may, it is obvious that the Court of Appeal which heard the appeal failed to consider this important ground of appeal and issues for determination framed thereon as they should.
In my view this engenders a miscarriage of justice in the circumstances of this case. A party is entitled to be heard in respect of complaints validly brought by him or her on appeal and before any Court for that matter-See Ebamawo v. Fadiyo (1973) 1 All N.L.R. (Pt. II) 134.”
Based on the foregoing principles of law, failure of the learned judge to consider and resolve the issue raised on the real or correct name of the appellant occasioned miscarriage of justice to the appellant.

In the final analysis, I resolve issue 1 in favour of the appellant. The appeal succeeds. As earlier alluded to in this judgment, where a Court of law failed to consider an issue properly submitted to it, the proper order to make is remitting the case to the trial Court for a proper consideration of all issues raised by any of the parties. See Ezeoke vs Nwagbo (1988) 1 NWLR Pt. 72 P. 616 @ 607. I consider

it otiose and purely academic to delve into the remaining two issues in view of the resolution of issue 1 in favour of the appellant. The judgment of the lower Court delivered on the 6th of May 2019 in suit No : Kws/208/2012 is hereby set aside. Consequently, I make an order remitting the said suit No :Kws/208/2012 to the Hon. Chief Judge of the lower Court for retrial “de novo” by a judge of the Kwara State High Court of Justice, other than Justice M Abdulgafar. No order as to costs.

AHMAD OLAREWAJU BELGORE, J.C.A.: I have had a privilege of reading in draft, the judgment just delivered by my learned brother, IBRAHIM SHATA BDLIYA, JCA. I agree with his reasoning and conclusion that the learned trial judge ought to have given consideration to all issues placed before him by parties.
I allow this appeal and remit the case SUIT NO: KWS/208/2012 to the Honourable Chief Judge of Kwara State to reassign the suit to a Judge of Kwara state High Court, other than Honourable Justice M. Abdulgafar, for a trial de novo.

UCHECHUKWU ONYEMENAM, J.C.A.: I have read before now the

leading Judgment just delivered by my learned brother, IBRAHIM SHATA BDLIYA, JCA.
I agree with my learned brother that arguments canvassed by the learned senior counsel for the Appellant in the final written address and the analysis of the learned trial Judge on the submission made by the Appellant on the correctness or otherwise of the name of the Appellant, are sufficient to establish that same issue was raised at the trial Court.

Equally, I adopt the holding of my learned BROTHER that where a Court of law failed to consider an issue properly submitted to it, the proper order to make is remitting the case to the trial Court for a proper consideration of all issues raised by the parties.

Therefore, I also set aside the Judgment of the trial Court delivered on 6th May, 2019 in suit No: KWS/208/2012. I abide by the consequential order and order as to costs.

Appearances:

Professor A. Amuda-Kannike (SAN) with him, A.O. Yusuf Esq., M. S Arikewuyo Esq. and AbdulRasaq A. Daibu Esq. For Appellant(s)

B.R Gold Esq with him, R.O Muhammed Esq and Oyindamola Olanrewaju Esq. for the 1st Respondent.
Stella Adeyemi Esq. for the 2nd and 3rd Respondents For Respondent(s)

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