KABURIYE & ANOR v. OKORONKWO & ORS (2020)

KABURIYE & ANOR v. OKORONKWO & ORS

(2020)LCN/14434(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, July 20, 2020

CA/YL/125/2019

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1) ALHAJI DAHIRU KABURIYE (Chairman Independent Petroleum Marketers Association, Yola Depot Unit) 2) CHIEF OBASI LAWASON APPELANT(S)

And

1) ELDER CHINEDU OKORONKWO 2) ALH. ABUBAKAR MAIGANI SHETIMA 3) ALH. DANLADI PASSALI 4) BOLA ADELEKE 5) CHIEF LEO MKAMEME 6) ALH. YAKUBU ALI DIMKA 7) CHIEF J. D. UBINI (JP) 8) ALH. DR. HAMMED ADEKUNLE FASHOLA 9) ALH. UMAR BABA KANO 10) CHIEF EZEKWESELI MADU AGWUNA 11) ALH. YAKUBU SULEMAN RESPONDENT(S)

RATIO

WHETHER OR NOT THE OUTCOME OF LITIGATION BY WAY OF JUDGEMENT BINDS ONLY THE PARTIES IN THAT CASE

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

In like manner, the lower Court also failed to pronounce on the issue of abuse of Court process raised, which was equally a threshold issue. See the case of: Obiuweubi v. CBN (2011) LPELR – 2185 (SC) PP 23 – 24 where the Supreme Court per Rhodes-Vivour, JSC, who delivered the lead judgment held as follows:
“Jurisdiction is a threshold matter. It is very fundamental as it goes to the competence of the Court to hear and determine a suit. Where a Court does not have jurisdiction to hear a matter, the entire proceedings no matter how well conducted and decided would amount to a nullity. It is thus mandatory that Courts decide the issue of jurisdiction before proceeding to consider any other matter. See Bronik Motors Ltd and Another v. Wema Bank Ltd. (1983) 1 SCNLR p. 296. …
Jurisdiction can be raised at any stage of the proceedings in the High Court, on appeal and even in the Supreme Court for the first time. … It can be raised by any of the parties or by the Court, and once raised the judge would do well to examine it and render a considered Ruling on it. In the task of determining if the Court has jurisdiction to hear and determine a case, the following principles must be considered diligently by the judge.
(a) Whether the subject matter of the case is within the Court’s jurisdiction
(b) Whether there is any feature in the case which prevents the Court from exercising jurisdiction and
(c) Whether the case before the Court was initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim (1962) 2 SCNLR P. 342, Ajao v. Popoola (1986) 5 NWLR Pt 45 P. 802”. PER BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): Following the decision of the Supreme Court in SC/15/2018 – Chief Lawson Obasi v. Elder Chinedu Okoronkwo & 10 Ors, upholding the Respondents’ Notice of Preliminary Objection and striking out the Appellants’ Appeal before it, the Respondents approached the High Court of Adamawa State for the enforcement of the Judgment of FCT High Court in Suit No. FCT/HC/CV/1479/2014 between Elder Chinedu Okoronkwo & 10 Ors. v. Chief Obasi Lawson which was the subject of Appeal in Appeal No. CA/A/397/2014 before the Court of Appeal, Abuja Division and ultimately the Supreme Court as stated above.

The High Court Adamawa (Presided over by Waziri J) enforced the said Judgment of the FCT High Court against the 1st Appellant. Dissatisfied with the Ruling of the lower Court, the Appellants filed their original Notice of Appeal on 25/06/2019, the amended Notice of Appeal was filed on 20/08/2019 but deemed properly filed and served on 9/10/2019. The Appellants’ Brief of argument was filed on 20/08/2019 but deemed properly filed and served on 9/10/2019. The Respondents Brief was

filed on 28/01/2020 but deemed as properly filed and served on 10/03/2020. The Appellants Reply Brief was filed on 3/06/2020 but deemed as properly filed and served on 4/06/2020. The Respondents filed a Notice of Preliminary objection on the hearing of the Appeal. The grounds for the objection are thus:
1) The Notice of Appeal and the entire Appeal as presently constituted is grossly incompetent.
2) The 1st Appellant is not a party in any of the proceedings giving rise to this Appeal.
3) Not being a party to any of the proceedings giving rise to this Appeal, the 1st Appellant cannot Appeal the decision of the lower Court as of right.
4) The 1st Appellant did not seek nor obtain leave of either the High Court or the Court of Appeal to file this Appeal.
5) The Appellants on filing this Appeal have changed, altered and restyled the parties on record who were the parties in the proceedings before the lower Court.
6) The Honourable Court lacks the jurisdiction to entertain this Appeal.

In arguing the Preliminary Objection at Page 7 of their Briefs, the Respondents formulated two issues for determination thus:

1) Whether the 1st Appellant is a party in the proceedings before the lower Court or any of the proceedings giving rise to this Appeal who can Appeal the decision of the lower Court as of right?
2) Whether the Notice of Appeal in this Appeal as presently constituted is competent as to activate the jurisdiction of this honourable Court.

On issue one, it was submitted that the parties on record before the FCT High Court up to the Supreme Court have been copiously reflected on the several processes as shown in the record of Appeal before this Court (Page 5 of the record in respect of FCT High Court enrolled order, Page 10 of the record in respect of the parties before the Abuja Division of the Court of Appeal and Page 63 in respect of the parties before the Supreme Court). According to Counsel, the name of all the parties in all the processes filed initiating the enforcement proceedings which gave rise to this Appeal are correctly and clearly reflected on record. That a look at all these processes revealed that the 1st Appellant in this Appeal was not a party in all the proceedings. That the 1st Appellant cannot Appeal the decision of the lower Court as of right but

with leave. Counsel referred to Section 243 (a) of the 1999 Constitution (as amended) and submitted that being a person interested the 1st Appellant must first seek leave to Appeal which he did not do. He cited the cases of Inter Ocean Oil Corp. Nig. Unlimited v. Fadeyi (2008) AFWLR (Pt. 403) 1381 at 1398 Paras. B-C (CA) and Paka v. Asieco & Ors. (2017) LPELR-43015 (CA) and submitted that failure to obtain leave where leave is required renders the Appeal is incompetent He urged the Court to resolve issue one in favour of the Respondent and strike out the Appeal.

As regards issue two, learned Counsel submitted that the Appellants made the 1st Appellant a party, whereas all the proceedings in this case has only the 2nd Appellant, Chief Lawson Obasi as a party. That by this, the Appellants have unilaterally altered and changed the parties on record. That the Notice of Appeal bearing this unilateral alteration becomes incurably bad and incompetent and should be struck out – Veralam Holdings Ltd. v. Galba Ltd & Anor. (2014) AELR 3505 (CA) and T.M. Lemin Nig. Ltd. v. SmartMark Ltd. (2018) LPELR-44827 (CA). He urged the Court to resolve the second

issue in favour of the Respondents and against the Appellants. In the Appellants response to the Preliminary Objection as reflected from Pages 6-14 of the Appellants Reply Brief, the Appellants adopted the twin issues formulated by the Respondents thus:-
i) Whether the 1st Appellant is a party in the proceedings before the lower Court or any of the proceedings giving rise to this Appeal, who can Appeal the decision of the lower Court as of right.
ii) Whether the Notice of Appeal as presently constituted is competent as to activate the jurisdiction of this Honourable Court to hear and determine same.

On issue one, it was submitted that bearing in mind that the subject matter of this Appeal is the enforcement proceedings of the Adamawa State High Court in Suit No. ADSY/RJ/2/2019, the Respondents’ counsel on his letter headed paper applied to the Deputy Chief Registrar of the lower Court for the “execution and possession in respect of the secretariat of IPMAN situate at No. 64, Atiku Abubakar Way, Jimeta-Yola, Adamawa State, IPMAN stand at the PPMC Yola Depot along Numan Road and all properties of IPMAN in Adamawa State”; Pursuant

to the provisions of Sections 104, 105 106, 107 and 108 of the Sheriffs and Civil Process Act Cap. 6, Laws of the Federation of Nigeria 2004 and Order IV, Rule 1 (1) of the Judgment (Enforcement) Rules. (See page 120 of the Record of Appeal).

That the trial Court issued and served a hearing notice on the 1st Appellant to appear at the enforcement proceedings, being that the 1st Appellant is the IPMAN Yola Chairman in charge and in possession of the IPMAN Yola Secretariat at the PPMC Yola Depot at No. 64, Atiku Abubakar Way, Jimeta-Yola, subject matter of the enforcement proceedings. According to Counsel, the hearing notice served on the 1st Appellant to appear at the lower Court for the enforcement proceedings against his secretariat, is forwarded to this Honourable Court as the additional Record of Appeal.

That the remedy of enforcement pursued by the Respondents was against the 1st Appellant. On the issue of who is a party to a proceeding, he referred to the case of Ndulue v. Ibezim & Anor. (2002) LPELR – 1980 (SC) p. 96 Paras D-G and 12 NWLR pt. 780 p. 139/(2002)5 SC (Pt. 11) 124 and submitted that upon being served with the hearing

notice the 1st Appellant challenged the affidavit for the enforcement proceedings by filing a counter affidavit, and a further affidavit. (Pages 262-398 of the Printed record and the further affidavit at Pages 255-261 of the Record of Appeal).

That in the Respondents’ affidavit for the enforcement proceedings at the trial Court, the Respondents relied on the Certificate of Judgment in FCT/HC/CV/1479/14 to seek the remedy of enforcement against the 1st Appellant, hence the service of the hearing notice on him. That the 1st Appellant did not stand by and watch. He engaged counsel to challenge the proceedings and all the objections raised by his counsel that there was no proper process of Court to commence the enforcement proceedings were discountenanced by the trial Court. That the Respondents immediately they got the enforcement order at the trial Court went immediately with the police and barred the 1st Appellant from accessing his secretariat.

According to Counsel, in the light of the foregoing facts and documents before the Court and the authorities cited, the Appellant was a party to the Enforcement proceedings at the Yola High Court, and as

such entitled by virtue of Section 243 (1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) to Appeal to this Court as of right for the determination of whether the execution levied against him and his office is proper in law or not, and he urged the Court to so hold. That the 1st Appellant would have been an interested party at the trial Court if the subject matter of the enforcement was No. 41, Gnassingbe Eyadema Street, Asokoro, Abuja and the Court did not serve a hearing notice on him to appear at the proceedings. Counsel further submitted that the commencement of the Enforcement proceedings against the 1st Appellant’s office (which was not in the Court order to be enforced) and serving the said 1st Appellant with a hearing notice to appear in Court properly brought him into the arena of the proceedings as a party, and the Respondents cannot wish to carry out Enforcement against him and his secretariat under the guise of the order of Court in FCT/HC/CV/1479/14 and yet wish that he be denied audience in the same Court. According to Counsel, that would amount to a travesty of justice. He urged the Court to resolve issue one

of this preliminary objection in the affirmative and in favour of the 1st Appellant. On issue two, Counsel canvassed all his arguments of issue number one and adopted same on this issue. That the 1st Appellant being a party who can Appeal against the Enforcement order against him as of right, can rightly be named in the Appeal as the 1st Appellant; and that the decision of the trial Court was obviously directly against him despite all his processes and objections raised at the trial Court.

On the contention that reflecting the 1st Appellant in the Notice of Appeal changed or redesigned the parties on record it was submitted that this contention underscores the argument of the Appellants under issue two in the main Appeal, that there was non-compliance with Order 2 Rule 10 of the Judgment Enforcement Rules in initiating the enforcement proceedings. That had Order 2 Rule 10 of the Judgment Enforcement Rules been complied with by the Respondents, there would have been a motion that would have clearly set out the parties in the Enforcement proceedings to include the 1st Appellant. That the Respondents cannot rope the 1st Appellant into the case and after

enforcing the judgment against him now turn around to deny that he was not party to the proceedings.

Learned Counsel submitted that the Respondents in bad faith chose not to reflect the 1st Appellant or his office in the affidavit they filed at the lower Court in the mistaken belief that screening his name out of their process would enable them have a field day at the trial Court but they failed to realize that the hearing notice served on the 1st Appellant and his subsequent participation in the proceedings properly imbued him with the locus to challenge the proceedings and indeed the decisions reached. That the Notice of Appeal as constituted is valid in view of the fact that the 1st Appellant against whom the enforcement was carried out in ADSY/RJ/2/2019 participated in the proceedings and challenged the enforcement at the trial though unsuccessfully. That the cases ofVeralam Holdings Ltd. v. Galba (Supra) and T. M. Lewin (Nig.) Ltd. v. Smartmark Ltd. (Supra) are distinguishable from this Appeal because in the instant case no party who participated at the proceedings at the trial Court was omitted in the Notice of Appeal. The Respondents’

contention in this case is that the 1st Appellant was only an interested party at the enforcement proceedings (the subject matter of this suit) and as such not entitled to appeal to this Court as of right without leave of Court. That in the cases cited, the issue was the exclusion in the Notice of Appeal of the names of the parties that participated in the proceedings at the trial Court, while in the instant case the 1st Appellant was summoned to the Enforcement proceedings and that he participated and in fact filed processes and as such was a party in the Enforcement proceedings entitled to challenge the decision of the trial Court in the Enforcement proceedings by way of Appeal, as of right. He urged the Court to resolve the issue in favour of the Respondents and against the Appellants.

The first issue for determination in the Preliminary objection is:
“Whether the 1st Appellant is a party in the proceedings before the lower Court or any of the proceedings giving rise to this Appeal who can Appeal the decision of the lower Court.”

It is important from the onset to know who is a party to a proceeding. In the case of Ndulue v. Ibezim & Anor.

(Supra) his lordship Iguh, JSC had this to say:
“In this regard, the term “parties” has been defined to include not only those named in the record of proceedings but also those who had direct interest in the subject matter of the dispute and had an opportunity to attend the proceedings and to join as a party in the suit but chose not to do so but were content to stand-by and see the battle in which their interest is directly in issue fought by somebody else or let witnesses testify as to their title to or interest in the subject matter of the action. See Olowo Okukuje v. Odejenima Akwido (2001) 3 NWLR (Pt.700) 261, Odua Esiaka and others v. Vincent Obiasogwu and others (1952) 14 WACA 178 at 180, Re Lart Wilkinson v. Blades (1896) 2 Ch. 788”.

A careful look at Page 120 of the Printed record shows that the Respondents’ counsel on his letter headed paper applied to the Deputy Chief Registrar of the lower Court for the “execution and possession in respect of the secretariat of IPMAN situate at No. 64, Atiku Abubakar Way, Jimeta-Yola, Adamawa State, IPMAN stand at the PPMC Yola Depot along Numan Road and all properties

of IPMAN in Adamawa State”. That the application was brought pursuant to the provisions of Sections 104, 105 106, 107 and 108 of the Sheriffs and Civil Process Act Cap. 6, Laws of the Federation of Nigeria 2004 and Order IV, Rule 1 (1) of the Judgment (Enforcement) Rules. It was upon the said application being received by the trial Court, that the trial Court issued and served a hearing notice on the 1st Appellant to appear at the Enforcement proceedings, being that the 1st Appellant is the IPMAN Yola Chairman in charge and in possession of the IPMAN Yola Secretariat at the PPMC Yola Depot at No. 64, Atiku Abubakar Way, Jimeta-Yola, subject matter of the enforcement proceedings. It is observed that the remedy of Enforcement pursued by the Respondents was against the 1st Appellant and the said 1st Appellant was therefore a party to the Enforcement proceedings. The first issue is therefore resolved in favour of the Appellants and against the Respondents.

Issue two is:
“Whether the Notice of Appeal in this Appeal as presently constituted is competent as to activate the jurisdiction of the Court”

As I earlier stated in this

Judgment the Respondents served the 1st Appellant with a hearing notice to be in Court for the Enforcement of Judgment against him. The law is settled that they cannot put the 1st Appellant into the case and after enforcing the Judgment against him now turn round to deny him the locus to challenge the proceedings and the ruling of the lower Court on Appeal. The 1st Appellant being a party who can appeal against the Enforcement order against him as of right, can rightly be named in the Appeal as the 1st Appellant. The decision of the trial Court was obviously directly against him. The Notice of Appeal as constituted is valid in view of the fact that the 1st Appellant against whom the Enforcement was carried out in ADSY/RJ/2/2019 participated in the proceedings and challenged the Enforcement at the trial though unsuccessfully. The second issue is therefore resolved in favour of the Appellants and against the Respondents. The Preliminary Objection is unmeritorious and is accordingly dismissed. In the main Appeal the Appellants formulated three issues for determination thus:
(i) Whether the orders of the FCT High Court in FCT/HC/CV/1479/2014 as contained in

the certificate of judgment registered at the High Court Yola as ADSY/RJ/2/2019 by the Respondents can be enforced against the 1st Appellant who is the Yola Depot Unit Chairman of IPMAN and the Yola Depot Unit Secretariat of IPMAN. (This issue relates to ground of Appeal Number One).
(ii) Whether the lower Court was right when it totally discountenanced the processes filed and submissions made by the Appellants in Court and failed to consider and pronounce on the competence of the enforcement proceedings and same being an abuse of Court process as contended by their counsel. (This issue relates to grounds Two and Three of the Appeal).
(iii) Whether the orders of the FCT High Court in FCT/HC/CV/1479/2014 was still extant and enforceable by the High Court of justice Yola in view of the decisions of the Supreme Court in SC/15/2018, Federal High Court Calabar in FHC/CA/CS/3/2019 and the orders of FCT High Court in FCT/HC/M/2212/2019. (This issue relates to ground of Appeal Number Four).

On issue one, it was submitted that the outcome of litigation by way of judgment, binds only the parties in that case, and to that extent, any order or orders of

Court in a judgment can only be enforced against parties in the said case or judgment -A-G Federation v. ANPP &Ors. (2003) LPELR – 630 (SC), Usung & Ors v. Nyong & Ors (2009) LPELR – 3933 (CA)

That in the instant case, the judgment of the FCT High Court in FCT/HC/CV/1479/2014 was between the Respondents herein as plaintiffs in the suit and the 2nd Appellant herein as the sole defendant in the said suit. That said sole defendant was never sued in a representative capacity neither was the 1st Appellant a member of the National Executive Committee of IPMAN which the 2nd Appellant conducted their election after assuming office as National President pursuant to the Orders of the Federal High Court Port Harcourt in FHC/PH/CS/12/201. According to Counsel, the suit at the FCT High Court was clearly a dispute as to the National Leadership of IPMAN between Elder Chinedu Okoronkwo (2nd Respondent) and his executive members who were elected on the 10th of May, 2014 based on an election conducted by the previous executive of the IPMAN in defiance of the Orders of the Federal High Court Port Harcourt (because they filed an Appeal and a Motion

for Stay of Execution against same), and the 2nd Appellant who became president and elected his executives by virtue of the judgment and orders in the said suit appealed against.

That the issues considered and resolved in Suit No. FCT/HC/CV/1479/2014 at the FCT High Court were whether the said previous leadership of IPMAN being a judgment debtor in FHC/PH/CS/12/2014 (Port Harcourt judgment) can conduct an election to fill the positions in the Association in view of their Appeal and motion for stay of execution that was pending at that time against the Port Harcourt judgment and whether the said election conducted by the said previous administration on the 10th of May, 2014 (where the Respondents herein were elected) was valid. It was also an issue whether the defendant in the case (Chief Obasi Lawson who is 2nd Appellant herein) was not bound to recognize and accept the plaintiffs in the case (Respondents herein) as the National Executive/Officials of Independent Petroleum Marketers of Nigeria (IPMAN). That the FCT High Court upon consideration of the facts placed before it made the following declarations, before it granted the said orders. The said

declarations were that:
“1. Chief Obasi Lawson, the defendant hereof, by claiming to have assumed office as the National President of IPMAN despite his having notice of a motion for stay of execution or injunction restraining him from assuming office as national president of IPMAN, pending an appeal to the Court of Appeal against the judgment and orders of Hon. Justice Lambo Akanbi of the Federal High Court Port Harcourt Division in Suit No. FHC/PH/CS/12/14 whereof he was appointed the National President of IPMAN, has acted in breach of the law as laid down by superior Courts in several cases, including but not limited to Ojukwu v. Gov. of Lagos State (1985) 2 NWLR (pt 10) 806 and Abbi v. Princewill & Ors (2011) LPELR – 3952 (CA);
2. Chief Obasi Lawson, the defendant hereof by purporting to have conducted elections into and constituted a new National Executive of IPMAN in clear disregard of the motion on notice for an order of stay of execution or injunction pending appeal to the Court of Appeal, against the judgment and order of Hon. Justice Lambo Akanbi of the Federal High Court Port Harcourt Division, in Suit No. FHC/PH/CS/12/14

whereof he was granted power to conduct election into and constitute a new National Executive of IPMAN has acted in violation of the law stated in No.1 above;
3. Prior to 10th of May, 2014 a stalemate had been created in the IPMAN national leadership, arising from the outcome of the aforesaid judgments in Suit No. FHC/PH/CS/12/14, delivered on 20th March, 2014, whereby it became difficult to determine who, between the judgment debtor and the judgment creditor possessed the legitimate and lawful capacity to take action, having regard to the notice of Appeal against the said judgment and the motion on notice for stay of execution/injunction pending appeal;
4. The election of the plaintiffs into various offices to constitute a National Executive Committee of IPMAN, on the 10th of May, 2014 is in the circumstance lawful, valid, legitimate and subsisting.’

That it was upon the foregoing declarations that the Court made the following orders:
“1. The defendant, whether by himself, his servants or agents by whatever name called and however described is hereby restrained from further interfering with or doing anything directly or

indirectly, which is capable of impeding the smooth administration, management and control of the affairs of IPMAN nationwide by the plaintiffs hereof, as its national executive officers; and the plaintiffs shall forthwith take possession of and have unimpeded access to the offices of the National Secretariat of the IPMAN, located at No. 41 Gnassingbe Eyadema Street, Asokoro, within jurisdiction.
2. The defendant is hereby restrained from taking any step or doing anything that is capable of prejudicing the hearing and determination of the pending motion on notice at the Federal High Court Port Harcourt Division in Suit No. FHC/HC/CV/12/14, in particular, the defendant is hereby restrained from organizing or conducting any election into any national executive office of IPMAN in clear disregard of the aforesaid pending motion on notice for an order of stay of execution or injunction pending appeal, as stated in No. 1 and 2 above.
3. The purported swearing in of the defendant on 20th March, 2014 as well as the election by him into a purported national executive committee on the 10th of May, 2014 are hereby nullified as being products of illegality

arising from the defendant’s contemptuous disregard of the motion on notice for a restraining order against the conduct of the said election as aforesaid.
I make no order as to cost.” (See Pages 5 – 9 of the Record of Appeal)

Counsel further submitted that it is manifest and undisputable from the above that the 1st Appellant and/or the Yola Depot Unit Executives of IPMAN were never parties to the suit and that what was in issue in the suit was the National leadership of IPMAN and the control of the National Structure of the Association. That the Court granted the National Leadership to the Plaintiffs and further granted them possession of the National Secretariat of the IPMAN at No. 41, Gnassingbe Eyadema Street, Asokoro, Abuja. That the unit leadership of IPMAN in Yola, Adamawa State was never in dispute in the suit. That the 1st Appellant and/or his unit executives was/were never part of the suit neither was any order made, for possession of the Yola Depot Unit Secretariat of IPMAN at No. 64 Atiku Abubakar Way Jimeta-Yola or any other place in Yola or any properties of IPMAN Yola Unit in Yola. According to Counsel, the lower Court

read into the order what was not contained therein, or totally glossed over the contents of the said order and could not see that the order of possession was made in respect of No. 41, Gnassingbe Eyadema Street, Asokoro, Abuja while the application for enforcement made to it was for the possession of No. 64, Atiku Abubakar Way Jimeta-Yola (which is the Yola Depot Unit Secretariat of IPMAN) and other properties of IPMAN in Yola.

Counsel referred to the case of Igbokoyi & Ors v. Lawal (2013) LPELR – 22006 (CA) and submitted that the instant case, the 1st Appellant and his unit executives which the lower Court enforced judgment against were never parties to the proceedings neither did they participate in the said proceedings that culminated into the said orders. He urged the Court to resolve the first issue in favour of the Appellants. As to issue two, Counsel submitted that in commencing the Enforcement proceedings at the High Court Yola, Respondents Counsel wrote a letter to the Deputy Chief Registrar (Litigation), High Court of Justice, Yola, Adamawa State applying pursuant to Sections 104, 105, 106, 107 and 108 of Sheriffs and Civil Process Act

and Order IV, Rule 1 of the Judgment (Enforcement) Rules for issuance of Writ of Possession in respect of the Secretariat of IPMAN situate at No. 64 Atiku Abubakar Way Jimeta-Yola, and all properties of IPMAN in Adamawa State. That Counsel attached an affidavit to this letter and attached to the affidavit was inter alia the certificate of judgment sought to be enforced. That hearing notice was then issued and served on the 1st Appellant against whom the Respondents wanted to enforce the judgment to appear in Court for the enforcement proceedings. That on the 20th of May, 2019, the Appellants’ Counsel appeared in Court and informed the Court that the process of the Court that was served on the Appellants was only the hearing notice served on the 1st Appellant and that the counter affidavit he filed that morning was filed on behalf of the Appellants without recourse to any affidavit filed by the Respondents. That the 1st Appellant was entitled to be served with the processes filed in the Court for the Enforcement proceedings. According to Counsel, the Court adjourned to the 17th of June, 2019 to enable the said processes to be served on counsel to the

Appellants. That the Counsel to the Appellants, upon being served with the Respondents’ application and its attachments as referred to above (Pages 120 – 239 of the Printed record) filed a further affidavit in opposition to the Respondents affidavit for enforcement in addition to the counter affidavit earlier filed.

That the trial Court in its ruling did not consider or pronounce on the competence of the proceedings with regard to the provisions of Order 2 Rule 10 of the Judgment Enforcement Rules argued by both counsel in Court, nor on the abuse of judicial process, rather it discountenanced all submissions and processes filed by the Appellants counsel on the ground that by Section 109 of the Sheriffs and Civil Process Act, the Appellants counsel failed to apply for a stay of proceedings as prescribed therein and the Court enforced the judgment against the 1st Appellant. (Page 404 of the printed Record).

That the lower Court was wrong when it read into or interpret the provisions of Section 109 of the Sheriffs and Civil Process Act, to the effect that an application for a stay of proceedings is mandatorily required to be made by a

judgment debtor who intends to oppose the enforcement on any ground. That Section 109 of the Act did not impose the filing of an application for stay of proceedings on a judgment debtor, nor the grant of same on the Court. That the section did not preclude the judgment debtor from filing a counter affidavit in the enforcement proceedings or challenging the enforcement on any ground tenable in law. According to Counsel, the contention of the Appellants before the lower Court was on the merit of the proceedings to the effect that the judgment was not enforceable against the 1st Appellant and his executives because they were not parties to the suit and there was no order in the judgment against them. That the judgment of the Supreme Court in SC/15/2018 effectively determined and terminated the right of the 2nd Appellant as the National President and that a new leadership had emerged in accordance with the 1997 Constitution and as such, the enforcement proceedings was an abuse of judicial process. The Appellants also contended that the proceedings was incompetent having not been properly commenced as mandatorily stipulated in Order 2 Rule 10 of the Judgment Enforcement Rules.

(See pp. 255 – 398 of the Record of Appeal).

That had the lower Court considered the processes filed and submissions made on behalf of the Appellants, it could have seen clearly that the judgment orders it enforced did not relate to the 1st Appellant’s office and properties in Yola, nor was the 1st Appellant party to the suit it enforced against him. That the lower Court failed to consider and pronounce on the competence of the suit due to noncompliance with Order 2 Rule 10 of the Judgment Enforcement Rules. That the proceedings having not been commenced by motion as provided by Order 2 Rule 10 is incompetent and the lower Court had no jurisdiction to proceed into hearing of the said matter; and the lower Court ought to have considered this and struck out the matter in limine. Having not done that, Counsel further submitted, this Court is urged to strike out the said proceedings having been conducted without jurisdiction. On issue three it was submitted that the orders of the FCT High Court in FCT/HC/CV/1479/2014 was no longer extant and enforceable in view of the decisions of the Supreme Court in SC/15/2018, the Federal

High Court Calabar in FHC/CA/CS/3/2019 and the Order of the FCT High Court in FCT/HC/M/2212/2019, which were all placed before the lower Court. That the said judgment of the FCT High Court, was not enforceable against the 1st Appellant and its Yola Depot unit Secretariat and properties in Yola, Adamawa State, the 1st Appellant having not been party to the suit and the said orders having not been directed against the properties therein.

Learned Counsel adopted Paragraphs 1, 2 and 3 of their Brief of argument as their submissions in restating the facts that led to the filing of Suit No. FCT/HC/CV/1479/2014 which went all the way to the Supreme Court. According to Counsel, the Supreme Court in the course of deciding Appeal No. SC/15/2018 that came before it made far reaching pronouncements that laid the IPMAN dispute to rest as follows:
a) That Order No. 4 made on the 20th March, 2014 by the Federal High Court, Port Harcourt in Suit No. FHC/PH/CS/12/2014 has not been validly set aside by a Court superior to the Federal High Court(Pages 335 – 336 of the Printed Record).
b) That the 3 year period the Appellant (Chief Obasi Lawson) would hold office

by virtue of that order commenced in March 2014 and ended in March 2017(Pages 335 – 336 of the Printed record).
c) That there are no valid terms of settlement in CA/PH/275/2014 that compromised the order of the Federal High Court Port Harcourt. (Pages 320 and 335 – 336 of the Printed Record).
d) That the Appellant (Chief Obasi Lawson) was in office as IPMAN president discharging the functions of the office for over 3 years. (Page 330 of the Printed Record).
e) That the Appeal became academic and incompetent in view of the lapse of tenure of the Appellant Chief Obasi Lawson. (Pages 336 – 337 of the Printed Record).

That the Supreme Court decided the Appeal based on a preliminary objection raised by the Respondents in the case, who are also Respondents in the present Appeal. That the Respondents contended at the Supreme Court that the tenure of Chief Obasi Lawson as president of IPMAN commenced in March 2014 and ended in March 2017 and as such he no longer had any right to sustain the Appeal which he filed before the Supreme Court in 2018. The Respondents also contended that the claim of Chief Obasi Lawson that terms of settlement

was filed at the Court of Appeal Port Harcourt, compromising the judgment of the Federal High Court Port Harcourt to elongate his tenure from 3 years to 5 years under the 2009 IPMAN constitution was not true as they were never part of the purported terms of settlement. That it was on the premises of these facts put forward via affidavit evidence in support of their preliminary objection against their appeal that the Supreme Court upon considering the whole issues resolved same as set out above.

Counsel further submitted that one fundamental thing to be noted at this juncture is that the Respondents got Appeal No. SC/15/2018 struck out on the strength of their preliminary objection. That this admission by the Respondents was an admission against their own interest in the Suit No. FCT/HC/CV/1479/2014 to the effect that the 1st Respondent became the president of IPMAN in 2014; as such the Respondents are estopped from asserting the contrary and cannot now pretend the non-existence of their evidence before the Supreme Court and want to claim the contrary under the orders of the FCT High Court through enforcement – Pina v. Mai-Angwa (2018) LPELR-44498 (SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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According to Counsel, the orders of Court in FCT/HC/CV/1479/2014 was overtaken by the events of the Supreme Court’s decision on appeal against it, and as such is no longer extant and enforceable, whether against the Appellants, or any other person. That an order of the FCT High Court per Bello CJ, while enforcing the judgment of the Supreme Court in SC/15/2018 specifically restrained the Respondents herein, from parading themselves as the National Executive of the Independent National Petroleum Marketers Association (IPMAN). (Pages 369 and 370 of the Printed Record). According to Counsel, the foregoing notwithstanding, the Respondents still went ahead, relying on their initial order of the FCT High Court in FCT/HC/CV/1479/2014 (the terms of which have been overtaken by the events of the subsequent judgment and orders of the Supreme Court in SC/15/2018 and other Orders set out above) to circumvent the orders of the Supreme Court made upon their own admission. That the Respondents cannot resurrect any right conferred on them by the judgment orders of the FCT High Court in FCTHC/CV/1479/2014 because when same went on Appeal to the Supreme Court they

compromised same by asserting the leadership of Chief Obasi Lawson between 2014 and 2017 in order to defeat his Appeal i.e. SC/15/2018. That by that singular act, the orders of the FCT High Court in FCT/HC/CV/1479/2014 can no longer be enforced by them.

That the 1st Respondent via this enforcement proceedings wants to revive his contention to that office of the presidency of the Association and this ought not to be so -Pan Atlantic Shipping and Transport Agencies Ltd V. Babatunde (2007) LPELR-4826 (CA).

He urged the Court to resolve third issue in favour of the Appellants, allow this Appeal and grant the reliefs sought upon invoking of the powers of this Court under Section 15 of the Court of Appeal Act. In the Respondents Briefs they adopted the three issues formulated by the Appellants. On issue one learned Counsel referred to the orders of the FCT High Court in FCT/HC/CV/1279/2014 as well as the terms in which the orders were enforced by the High Court Yola and queried whether it can be said it enforced the judgment against the 1st Appellant. According to Counsel, for the risk of repetition, the orders of the FCT High Court under reference are as

follows:
“1. The defendant, whether by himself, his servants or agents by whatever name called and however described is hereby restrained from further interfering with or doing anything directly or indirectly, which is capable of impeding the smooth administration, management and control of the affairs of IPMAN nationwide by the plaintiffs hereof, as its national executive officers; and the plaintiffs shall forthwith take possession of and have unimpeded access to the offices of the National Secretariat of the IPMAN, located at No. 41 Gnassingbe Eyadema Street, Asokoro, within jurisdiction.
2. The defendant is hereby restrained from taking any step or doing anything that is capable of prejudicing the hearing and determination of the pending motion on notice at the Federal High Court Port Harcourt Division in Suit No. FHC/HC/CV/12/14, in particular, the defendant is hereby restrained from organizing or conducting any election into any national executive office of IPMAN in clear disregard of the aforesaid pending motion on notice for an order of stay of execution or injunction pending appeal, as stated in No. 1 and 2 above.
3. The purported

swearing in of the defendant on 20th March, 2014 as well as the election by him into a purported national executive committee on the 10th of May, 2014 are hereby nullified as being products of illegality arising from the defendant’s contemptuous disregard of the motion on notice for a restraining order against the conduct of the said election as aforesaid.
I make no order as to cost.”

That upon the application of the Respondents as Judgment Creditors, the High Court Yola enforced the judgment in the following terms:
“In the final analysis, the Judgment of the High Court of Justice in FCT Abuja in Suit No. FCT/HC/CV/1479/14 Between ELDER CHINEDU OKORONKWO & ORS v. CHIEF OBASI LAWSON duly registered in this Court which had the blessing of the COURT OF Appeal and the Apex Court is accordingly enforced. In the light of the above, all parties therein are ordered to abide by the enforced judgment. Failure to do so would render the defaulting party for contempt of Court. Judgment enforced”.

According to Counsel, with the above pronouncement, it cannot be said that the High Court, Yola enforced the FCT High Court

Judgment against the 1st Appellant. That throughout the length and breadth of the ruling of the Yola High Court in enforcing the FCT High Court Judgment, there is nothing to show or suggest that the said judgment was enforced against the 1st Appellant. That the proceedings before the Yola High Court were not about the Yola Depot Unit Chairmanship of IPMAN, which the 1st Appellant claimed to be, and which, on the Record before the Honourable Court is a disputed issue – Counter Affidavit of the Respondents at Page 262 of the Printed Record where the 1st Appellant claimed to be the Yola Depot Unit Chairman of the IPMAN and the Further and Better Affidavit of the Applicants at Pages 242-245 of the Printed Record. According to Counsel, the contention by the Appellants that the judgment was enforced against the 1st Appellant as the Yola Depot Unit Chairman of IPMAN was a deliberate and intentional misrepresentation of the terms of the ruling giving rise to this appeal, which is crafted by the Appellants to mislead this honourable Court.

He urged the Court to resolve issue one in favour of the Respondents and dismiss this Appeal. As to issue two, reference was

made to the ruling enforcing the judgment of the FCT High Court in FCT/HC/CV/I479/2014 when the trial Court held thus: “I have dutifully considered the Judgment Creditors/Applicants as well as the Counter Affidavit of the Judgment Debtor/Respondent and I am of the view that this Honourable Court’s task in the circumstance of this application is only to enforce the judgment of the Federal Capital Territory High Court which was registered in the Register Book of Nigerian Judgment sought to be enforced.” (Page 407 of the Printed record). According to Counsel before making the above pronouncement, the trial Judge analysed the processes filed by both parties as well as the submissions of Counsel – Pages 404–406 of the Printed record – F.M.C Ido Ekiti & Ors v. Olajide (2011) LPELR -4150 (CA). He urged the Court to resolve issue two in favour of the Respondents.

On issue three, it was submitted that contrary to the submissions of the Appellants on this issue, what is important in resolving this issue is for the Court to identify what was decided in SC/15/2018 by the Supreme Court vis a vis the decisions of the Federal High Court Calabar in

FHC/CA/CV/3/2019 and orders of the FCT High Court in FCT/HC/M/2212/2019, as against the FCT High Court judgment in FCT/HC/CV/1279/2014, the substantive judgment enforced by the High Court of Justice, Yola, which enforcement proceedings gave rise to this Appeal. First, my Lord, it is without doubt that the FCT nullified the election of Chief Obasi Lawson as the president of IPMAN. That the judgment went on Appeal at the instance of the Defendant (now 2nd Appellant in this Appeal) to the Court of Appeal, which heard the Appeal on the merits and dismissed same. That from the Court of Appeal, the Appellant (now 2nd Appellant) went to the Supreme Court. The Supreme Court struck out the Appeal as being an academic exercise. According to Counsel, it is clear that with the dismissal of the Appeal by the Court of Appeal and striking out by the Supreme Court, the judgment of the FCT High Court in FCT/HC/CV/1279/2014 and all the orders made therein remain valid subsisting and enforceable. That the Supreme Court struck out the Appeal based on a preliminary objection; hence, it is misleading to argue that the Supreme Court made any pronouncements on issues joined and

canvassed in the substantive Appeal. That it is well settled, that where a Court upholds a preliminary objection to an Appeal on a point that disposes of the whole Appeal, the Court does consider the case on its merits- Uzoho v. Asugha (2017) LPELR-42073 (CA). That the Supreme Court did not decide the Appeal before it on its merits, much less pronounce on any issue in the Appeal touching on which of the 2 constitutions of IPMAN is the authentic and valid Constitution. That if any thing at all, the decision of the Supreme Court in striking out the Appeal can only be said to have countenanced and indeed validated the election of the Respondents as per the FCT High Court judgment, in FCT/HC/CV/1479/2014. That with the Supreme Court, striking out the Appeal, the FCT High Court judgment in FCT/HC/CV/1479/2014 becomes enforceable.

According to Counsel, the Appellants have referred to the judgment of the Federal High Court Calabar in FHC/CA/CS/3/2019 and FCT High Court in FCT/HC/M/2212/2019 and argued that because of these Judgments, the FCT High Court judgment in FCT/HC/CV/1479/2014 which remains sustained by the Supreme Court in SC/15/2018, cannot be enforced.

Counsel submitted that the Supreme Court is the Highest Court in the land and indeed the final Court of Appeal. That how can a judgment that has gone up to the Supreme Court unscathed and becomes enforceable thereby, be rendered unenforceable by the order of a High Court or Federal High Court? That the submissions of the Appellants in that regard is misleading, aimed at inviting the Court to sit in review of the judgment of the Supreme Court and thus arrive at a different conclusion favorable to the Appellants. That the 1st Appellant, having realized the full import of the Supreme Court judgment in SC/15/2018 had earlier on filed an application for a review of the judgment, but the Supreme Court struck out the application (Pages 248-249 of the Printed Record). He urged the Court to dismiss the Appeal.

In the Reply Brief it was submitted that in the course of the argument on issue one adopted by the Respondents, Respondents’ counsel submitted that the judgment of the FCT High Court was never enforced by the trial Court against the 1st Appellant and contended that the Appellants’ counsel’s submission that the judgment was enforced against

the 1st Appellant was an intentional misrepresentation of the terms of the ruling, and cited the cases of Iloabachie v. Iloabachie (2000) LPELR – 6939 (CA); and FMC Ado Ekiti & Ors v. Olajide (2011) LPELR – 4150 (CA) to contend that because of the alleged misrepresentation, the whole Appeal is vitiated.

Counsel submitted that there is no misrepresentation of any sort by Appellants’ counsel in this Appeal. That the Respondents argument under issue one wherein he stated that the trial Court did not enforce the judgment against the 1st Appellant amounts to making or presenting a case different from the one he presented at the trial Court. According to Counsel, the Respondents’ counsel wrote a letter or made an application at the trial Court for execution and possession of the Yola Depot Secretariat of IPMAN at No. 64, Atiku Abubakar Way, Jimeta, Yola. That in the said letter counsel stated clearly that the order to be enforced was order of Court in FCT/HC/CV/1479/14 and in fact attached both the judgment and the certificate of judgment in the suit. (Pages 120, 122, 124 and 126 of the Printed Record). That in the Respondents’

further affidavit for execution of judgment filed at the trial Court, the Respondents stated that the 1st Appellant (Alhaji Dahiru Buba Kaburiye) is a factional leader of the IPMAN and that the conduct of the said 1st Appellant violated the judgment he was seeking to enforce. (Pages 240 – 241 of the Printed Record). That the Respondents caused a hearing notice to attend the enforcement proceedings to be served on the 1st Appellant. (See additional Record of Appeal). Furthermore, during the hearing at the trial Court, the same counsel moved the Court to find merit in his application and to enforce the judgment of the FCT High Court. (See pages 401 – 403 of the Record of Appeal). The trial Court in its ruling gave an order that the judgment is enforced and the Respondents immediately proceeded and served the 1st Appellant with the said order thereby preventing him from exercising his functions in the secretariat.

According to Counsel, it is indeed curious for the same Respondents’ Counsel to turn around now to make a case that the trial Court never enforced the judgment against the 1st Appellant. That the Respondents’ Counsel cannot

in law be allowed to prevaricate or change his case here on Appeal as that will certainly overreach or prejudice the Appeal that is already structured or built on the cases made out by parties at the trial Court. See the case – Okoro & Ors v. Egbuoh & Ors (2006) LPELR – 2491(SC).

That under issue 2, the Respondents’ Counsel argued that the trial Court made pronouncements on the threshold issue of competence of the proceedings raised by the Appellants’ counsel. According to Counsel, dictum of the trial Court does not amount to pronouncement or decision on the competence of the proceedings raised which is a threshold issue that ought to be first determined by the trial Court -Ikechukwu v. FRN & Ors (2015) LPELR – 24445 (SC) and Emordi v. Igeke & Ors (2011) LPELR – 1136 (SC). That the trial judge failed to consider and reach any decision or make any pronouncement on the competence of the proceedings as he is duty bound to do before enforcing the judgment. -APC v. INEC & Ors (2014) LPELR – 24036 (SC).

Counsel further submitted that on issue 3, the Respondents contended in respect of SC/15/2018 that the

Appeal was struck out by the Supreme Court upon a preliminary objection raised by the Respondents in the appeal; as such there was no order of the Supreme Court that set aside the orders of the lower Courts in the case. Counsel replied that SC/15/2018 was struck out on the basis of the preliminary objection raised by the Respondents in the Appeal and the Supreme Court in SC/15/2018 considered the issues raised by the affidavit evidence of the parties and made pronouncements on those issues and it was based on those issues that the Supreme Court decided that the Appellant no longer had locus standi to sustain the Appeal. That the Appeal was not just struck out. It was struck out on the basis and facts put forward before the Supreme Court which the Supreme Court considered and decided on before striking out the Appeal. That parties are bound by those issues they put forward to the Supreme Court and also bound by the pronouncement of the Supreme Court on the said issues. That the order striking out the Appeal cannot be taken in isolation of the decisions reached in the course of striking the Appeal out. Parties are in fact bound by the said decisions reached on

those points and are precluded from asserting the contrary. That in the instant case, it can no longer be disputed that Chief Obasi Lawson (the 2nd Appellant in the Appeal) held office as National President of IPMAN by virtue of the Federal High Court order of 20th March, 2014 in accordance with the 1997 Constitution and that his tenure had lapsed at the time of his Appeal in SC/15/2018 to the Supreme Court. That this was the decision of the Supreme Court upon which the Appeal was struck out on the basis of lapse of tenure of Chief Obasi Lawson. That all parties in the Appeal are bound by that decision on that issue. See the lead judgment of the Supreme Court at pages 312 to 338 of the Record of Appeal, more particularly pages 335 to 337. That the case of Uzoho v. Asugha (Supra) cited by the Respondents is not on all fours with the instant case because issue estoppel has to operate to preclude the assertion of anything to the contrary – case of Ogbogu & Ors v. Ndiribe & Ors (1992) LPELR – 2283 (SC). Two issues in my humble view call for determination in this Appeal.
1) “Whether the orders of the FCT High Court in FCT/HC/CV/1479/2014 as

contained in the certificate of judgment registered at the High Court Yola as DSY/RJ/2/2019 by the Respondents can be enforced against the 1st Appellant who is the Yola Depot Unit Chairman of IPMAN and the Yola Depot Unit Secretariat of IPMAN.”
2) “Whether the lower Court was right when it discountenanced the processes filed and submissions made by the Appellants in Court and failed to consider and pronounce on the competence of the enforcement proceedings as same being an abuse of Court process.”

The general principle of law is that the outcome of litigation by way of judgment binds only the parties in that case, and to that extent, any order or orders of Court in a judgment can only be enforced against the parties in that case. See A.G Federation v. A.N.P.P. & Ors. (Supra) and Usung & Ors. v. Nyong & Ors. (Supra). A careful look at the case before the FCT High Court in Suit No. FCT/HC/CV/1479 shows that it was between the 2nd Appellant and the Respondents. The 1st Appellant and/or Yola Depot Unit executives of IPMAN were not made parties in that Suit. Upon consideration of the facts placed before it the FCT High Court

made the following orders:
“1. The defendant, whether by himself, his servants or agents by whatever name called and however described is hereby restrained from further interfering with or doing anything directly or indirectly, which is capable of impeding the smooth administration, management and control of the affairs of IPMAN nationwide by the plaintiffs hereof, as its national executive officers; and the plaintiffs shall forthwith take possession of and have unimpeded access to the offices of the National Secretariat of the IPMAN, located at No. 41 Gnassingbe Eyadema Street, Asokoro, within jurisdiction.
2. The defendant is hereby restrained from taking any step or doing anything that is capable of prejudicing the hearing and determination of the pending motion on notice at the Federal High Court Port Harcourt Division in Suit No. FHC/HC/CV/12/14, in particular, the defendant is hereby restrained from organizing or conducting any election into any national executive office of IPMAN in clear disregard of the aforesaid pending motion on notice for an order of stay of execution or injunction pending appeal, as stated in No. 1 and 2 above.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The purported swearing in of the defendant on 20th March, 2014 as well as the election by him into a purported national executive committee on the 10th of May, 2014 are hereby nullified as being products of illegality arising from the defendant’s contemptuous disregard of the motion on notice for a restraining order against the conduct of the said election as aforesaid.
I make no order as to cost.”

It is clear from the orders of the FCT High Court as reproduced above that the Court granted the National leadership of IPMAN to the Plaintiffs (the respondents in this Appeal). The Court further granted them possession of the National Secretariat of IPMAN at No. 41 Gnassingbe Eyadema Street, Asokoro Abuja. The Court did not make any order for possession of the Yola Depot Depot Unit Secretariat of IPMAN at No. 64 Atiku Abubakar Way Jimeta-Yola or properties of IPMAN Yola Unit. Despite the fact that the 1st Appellant was not a party to the proceedings before the FCT High Court, Counsel to the Respondents in commencing the enforcement proceedings before the lower Court wrote a letter to the Deputy Chief Registrar (Litigation) High Court of

Justice, Yola applying pursuant to Sections 104, 105, 106, 107 and 108 of the Sheriffs and Civil Process Act and Order IV Rule 1 of the Judgment (Enforcement) Rules for issuance of Writ of possession in respect of the Secretariat of IPMAN situated at No. 64 Atiku Abubakar Way Jimeta-Yola and all properties of IPMAN in Adamawa State as shown at Page 120 of the Printed record. Hearing notice was then served on the 1st Appellant to appear at the enforcement proceedings. The hearing Notice is forwarded to this Court as an additional record of Appeal. It therefore follows that as a party to the enforcement proceedings whatever orders the lower Court make will affect the 1st Appellant. In the case of Ndulue v. Ibezim & Anor (Supra) the Supreme Court held that:
“In this regard, the term “parties” has been defined to include not only those named in the record of proceedings but also those who had direct interest in the subject matter of the dispute and had the opportunity to attend the proceedings and to join as a party in the suit but chose not to do so but were content to stand-by and see the battle in which their interest is directly in issue fought

by somebody else or let witnesses testify as to their title to or interest in the subject matter of the action. See Olowo Okukuje v. Odejenima Akwido (2001) 3 NWLR (Pt.700) 261, Odua Esiaka and others v. Vincent Obiasogwu and others (1952) 14 WACA 178 at 180, Re Lart Wilkinson v. Blades (1896) 2 Ch. 788.

The printed record at Pages 265-398 shows that the 1st Appellant on being served with the hearing notice challenged the affidavit for the enforcement proceedings by filing a counter affidavit and a further affidavit. A careful look at the application for the issuance of the Writ of Possession made by the Counsel for the issue of a Writ of possession in respect of the Secretariat of IPMAN situated at No. 64, Atiku Abubakar Way, Jimeta Yola, and all the properties of IPMAN in Adamawa State in favour of the Respondents; the issue of hearing notice in respect of the enforcement proceedings to the 1st Appellant and the subsequent ruling of the lower Court granting the application, goes to show that the lower Court enforced the Judgment of the FCT High Court against the 1st Appellant, which goes contrary to the orders of the FCT High Court in Suit No.

FCT/HC/CV/1479/2014 (earlier reproduced in this judgment). It therefore follows that the lower Court was in error when it read into the FCT High Court order what was not contained in the said order. In the case of Igbokoyi & Ors. v Lawal (2013) LPELR – 22006 (CA) this Court held thus:
“It is trite that an order for the enforcement of a valid judgment of a Court of law must address exactly what the judgment being enforced decided. The exact terms of the judgment cannot be varied and must be enforced in exactly the same tenor as was determined.”

The first issue for determination is therefore resolved in favour of the Appellants and against the Respondents.
The second issue is:
“Whether the lower Court was right when it discountenanced the processes filed and submissions made by the Appellants in Court and failed to consider and pronounce on the competence of the enforcement proceedings and same being an abuse of Court process.”

Counsel to the Appellants, upon being served with the Respondents’ application and its attachments filed a further affidavit in opposition to the Respondents affidavit for

enforcement, in addition to the counter affidavit earlier filed. At the hearing of the enforcement proceedings, the Appellants’ counsel contended that the enforcement proceedings was an abuse of judicial process in view of the judgment of the Supreme Court and Federal High Court Calabar, and that same was unenforceable against the 1st Appellant, and same was also incompetent having not been commenced by motion as prescribed by Order 2 Rule 10 of the Judgment Enforcement Rules which provided for its commencement by way of motion. (Pages 399 – 403 of the Printed Record).

The trial Court in its ruling did not consider or pronounce on the competence of the proceedings with regard to the provisions of Order 2 Rule 10 of the Judgment Enforcement Rules argued by both counsel in Court, nor on the abuse of judicial process, rather it discountenanced all submissions and processes filed by the Appellants counsel. Had the lower Court considered the processes filed and submissions made on behalf of the Appellants, it could have seen clearly that the judgment orders of FCT High Court it enforced did not relate to the 1st Appellant’s office and

properties in Yola, nor was the 1st Appellant party to the suit it enforced against him. The Court was bound to firstly consider and rule on the competence of the proceedings one way or the other in its ruling before delving into the merits of the application. The Court failed to do this. In like manner, the lower Court also failed to pronounce on the issue of abuse of Court process raised, which was equally a threshold issue. See the case of: Obiuweubi v. CBN (2011) LPELR – 2185 (SC) PP 23 – 24 where the Supreme Court per Rhodes-Vivour, JSC, who delivered the lead judgment held as follows:
“Jurisdiction is a threshold matter. It is very fundamental as it goes to the competence of the Court to hear and determine a suit. Where a Court does not have jurisdiction to hear a matter, the entire proceedings no matter how well conducted and decided would amount to a nullity. It is thus mandatory that Courts decide the issue of jurisdiction before proceeding to consider any other matter. See Bronik Motors Ltd and Another v. Wema Bank Ltd. (1983) 1 SCNLR p. 296. …
Jurisdiction can be raised at any stage of the proceedings in the High

Court, on appeal and even in the Supreme Court for the first time. … It can be raised by any of the parties or by the Court, and once raised the judge would do well to examine it and render a considered Ruling on it. In the task of determining if the Court has jurisdiction to hear and determine a case, the following principles must be considered diligently by the judge.
(a) Whether the subject matter of the case is within the Court’s jurisdiction
(b) Whether there is any feature in the case which prevents the Court from exercising jurisdiction and
(c) Whether the case before the Court was initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim (1962) 2 SCNLR P. 342, Ajao v. Popoola (1986) 5 NWLR Pt 45 P. 802”.

The second issue is resolved in favour of the Appellants and against the Respondents. The Appeal is meritorious and is hereby allowed. The Ruling of the lower Court delivered on 25/06/2019 is hereby set aside. One Hundred Thousand Naira (N100,000.00) cost is awarded in favour of the Appellants and against the Respondents.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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CHIDI NWAOMA UWA, J.C.A.: I agree.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft, the judgment just delivered by my learned brother Abdullahi Mahmud Bayero JCA.

The 1st Appellant having been served and participated in the enforcement proceedings in the Court below before the enforcement order was made against him as Chairman of Independent Petroleum Marketers Association Yola Depot Unit, he did not need the leave of Court to appeal against the enforcement proceedings. My learned brother rightly dismissed the preliminary objection of the Respondents to the appeal.
I too overrule the Preliminary objection.

The judgment of the FCT, High Court sought to be enforced was very clear. The order made by that Court was for the possession of the National Secretariat of IPMAN.

The Court below erred when it refused to consider and rule on the competence of the proceedings before it one way or the other before rushing to enforce the judgment against the 1st Appellant. This should be deprecated.

For the reasons more elaborated stated in the lead judgment of my learned brother, I too resolve the two issues in favour of the 1st

Appellant and against the Respondents.

I allow the appeal and set aside the ruling of the Court below. I abide by all other orders including the order as to costs.

Appearances:

O. Odo, Esq. For Appellant(s)

Elijah, Esq., with him, H.O. Isa Esq. For Respondent(s)