MIRAGE HOTELS LTD v. EMY HOLDING (NIG) LTD
(2022)LCN/17117(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Monday, September 19, 2022
CA/E/340/2019
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Between
MIRAGE HOTELS LIMITED APPELANT(S)
And
EMY HOLDING (NIGERIA) LIMITED RESPONDENT(S)
RATIO
THE EFFECT OF NON-COMPLIANCE WITH THE PROVISIONS OF A STATUTE
Order 5 thereof with the title Effect of Non-Compliance.
“EFFECT OF NON – COMPLIANCE
1. Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
2. The Court may on the ground that there has been such a failure as mentioned in Rule 1, and on such terms as to costs or otherwise as it, thinks just, set aside either wholly or in part, the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may make an order to rectify or regularize the proceedings, and may allow such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit.
3. An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceedings after becoming aware of the irregularity.” PER WILLIAMS-DAWODU, J.C.A.
THE POSITION OF LAW ON SUBSTANTIAL JUSTICE
Nowadays, the Courts have charted a new path aimed at consolidating substantial justice between the parties and would sparingly accord mere technicality, just for its own sake, any pride of place except in very well deserving cases. Thus, in the legal jurisprudence in Nigeria today, substantial justice is king and I choose to join my learned brother in the leading judgment to do substantial justice in this appeal to parties. Decided authorities on this position of the law are legion and are replete in the law Reports, but suffice to refer to the following authorities, most of which decisions are my own decisions, since charity should begin at home. See Ganiyu V. Oshoakpemhe & Ors (2021) LPELR – 53222 (CA) AT Pp. 111 – 113, per Sir Biobele Abraham Georgewill JCA; Ikoya Properties V. Sowemimo & Ors (2016) LPELR-42238 (CA) pp. 35 – 37, per Sir Biobele Abraham JCA; Union Bank (Nig) Plc V. Koleoso (2017) LPELR – 42723 (CA) (g) pp. 26 – 27, per Sir Biobele Abraham Georgewill JCA; African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 AT p. 365 – 366, per Sir Biobele Abraham Georgewill JCA; Andrew Ize Iyamu V. Oshoakpemhe & Ors (2021) LPELR – 53228 (CA) pp. 119 – 121, per Sir Biobele Abraham Georgewill JCA. PER WILLIAMS-DAWODU, J.C.A.
ELFRIEDA OLUWAYMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Enugu State High Court, Enugu, delivered by Hon. Justice C. O. Ajah on April 9th, 2019 wherein the Court found in favour of the Respondent (the Plaintiff at the Court below) and granted all the reliefs sought against the Appellant (the Defendant at the Court below).
Being dissatisfied with the decision of the Court, the Appellant has approached this Court with its Notice and Six (6) Grounds of Appeal as amended dated and filed July 15th, 2020 and deemed as properly filed and served on January 12th, 2022.
At the Court below the following were the reliefs sought by the Respondent:
“a. Declaration that the document executed between the Plaintiff and the Defendant over sub plot 479A, First Avenue Independence Layout Enugu and whatsoever grant, rights and interests thereby assigned or transferred by the Plaintiff to the Defendant is void.
b. DECLARATION that the grant made by the Plaintiff to the Defendant by virtue of the document executed between the Plaintiff and the Defendant over Plot was voided by the letter by the Plaintiff to the Defendant Dated 1/7/2013 voiding same.
c. DECLARATION that the Defendant is enjoined by law to observe all the town planning regulations of Enugu North Local Government and Enugu State Building Regulations over Plot 479A, First Avenue Independence Layout Enugu including not erecting any structure or building therein or on any part thereof except for residential purposes and not for hotel or industrial or commercial purposes.
d. DECLARATION that the redesign, construction, reconstruction and work done by the Defendant on Plot 479A, First Avenue Independence Layout Enugu, is not in conformity with the tenor of the Document executed between the Plaintiff and the Defendant over Plot 479A, First Avenue Independence Layout Enugu.
e. DECLARATION that the Plaintiff is entitled to the forfeiture of Plot 479A, First Avenue Independence Layout Enugu, to the plaintiff by the defendant.
f. AN ORDER of forfeiture of Plot 479A, First Avenue Independence Layout Enugu by the defendant to the plaintiff.
Or alternatively
g. PERPETUAL INJUNCTION against the defendant, his heirs, agents, workmen, assigns, servants and successors-in-title restraining them from acts of trespass on Plot 479A, First Avenue Independence Layout Enugu.
h. An Order that the Defendant removes the illegal structures built on the Plot 479A, or pay for the removal of the structures.”
The brief gist of what culminated into the case of the Respondent against the Appellant is that the Respondent assigned to the Appellant its property the unexpired interest in plot 479A, First Avenue Independence Layout Enugu in the sum of N46 Million on the condition that the Enugu State Government would approve the sublease. The property by the Appellant is said to be 80% completed as at the time of assignment and was agreed to be used only as residential which was one of the terms of the agreement between the parties. It is the position of the Respondent that the Appellant breached the term of the agreement as there was no requisite government approval before it commenced massive alteration and reconstruction of the uncompleted structures on the property. The Appellant denied any breach by the structures it was erecting. That the structures were not hotel or industrial buildings, but it was merely completing the uncompleted structures by the Respondent with minor and negligible modifications for which it had Enugu State Government’s approval.
The Respondent’s position is that the property would be devalued, it would deface and degrade the entire area and therefore sought to set aside the transfer of its interest therein to the Appellant vide its Suit at the Court below.
As required by the rules of this Court, parties filed and exchanged their briefs of argument. The Appellant’s is dated and filed on July 15th 2020, deemed as properly filed and served on January 12th, 2022 and its Reply brief dated and filed on June 21st, 2022, which were both settled by M. V. C. Ozioko Esq., who urged that the appeal be allowed. The Respondent’s dated February 17th, 2022, filed May 25th, 2022 was deemed properly filed and served on June 23rd 2022 and was settled by O. N. Enechionyia Esq., who urged that the appeal be dismissed.
ISSUES SUBMITTED BY PARTIES FOR DETERMINATION
APPELLANT’S FOUR (4) ISSUES
“i. Whether the non-signing of the writ of summons by the Plaintiff/Respondent or its legal practitioner rendered the instant suit incompetent and deprived the trial Court of jurisdiction to entertain same (Ground IV).
ii. Whether the trial Court was right in holding that the written agreement between the Appellant and the Respondent for the transfer of interest over Plot 479A, First Avenue Independence Layout Enugu (Exhibit 3) was void for lack of Governor’s consent to the transaction (Ground 1).
iii. Whether the trial Court was right in holding that the Appellant was in breach of the express covenant in Clause 7 of the written agreement between it and the Respondent over Plot 479A, First Avenue Independence Layout Enugu (Exhibit 3) (Grounds II, III, V and VI).
iv. Whether the trial Court was right in granting in favour of the Respondent mutually inconsistent reliefs and/or reliefs claimed in the alternative (Ground VI).”
RESPONDENT’S FOUR (4) ISSUES
“1. Failure to sign a Writ of Summons effect where raised on appeal at the first instance.
2. Breach of contract/agreement by a party to the said agreement THE EFFECT THEREOF.
3. On whom does the duty lie to evaluate evidence and/or to determine what credible evidence is?
4. Where a trial Court grants all reliefs sought even though some reliefs were sought in the alternative, THE EFFECT THEREOF.”
I have carefully considered the two (2) sets of issues by the parties and having so done, I adopt the Appellant’s issues for the just and fair determination of this appeal.
APPELLANT’S SUBMISSION
The learned Counsel for the Appellant Dr. M. V. C. Ozioko submitted that the Respondent’s Suit was incompetent as the Writ of Summons therein was not signed by the Respondent’s legal Practitioner as required by Order 6 Rule 2 (1), (2) and (3) of the Rules of the High Court of Enugu State 2006. That the incompetence robbed the Court below of its jurisdiction. In support, he cited the cases of BRAITHWAITE V. SKYE BANK PLC. 2013 5 NWLR PT. 1346 1, KIDA V. OGUNMOLA 2006 13 NWLR PT. 997 337, MADUKOLU V. NKEMDILIM 1962 2 NSCC 374 and MACFOY V. UAC CO. LTD. 1962 AC 152. For that reason, he submitted that the entire proceedings culminating in the judgment of the Court was nullified and should be set aside and cited in support the cases of ADEFARASIN V. DAYEKH 2007 11 NWLR PT. 1044 89, SLB CONSORTIUM LTD. V. NNPC 2011 19 NWLR 317 and SAKA BURAIMOH V. TUNDE ALEJO 2014 LPELR 23203 CA.
He submitted that the Respondent failed to specifically plead the ground that the contract between the parties was void as prescribed by Order 15 Rule 7 (2) of the Rules of the Court and therefore the Court was wrong to have concluded that it did. In support, he cited the cases of AJAYI V. ADEBIYI 2012 ALL FWLR PT. 634 1 and ADIGUN V. AYINDE 1993 8 NWLR PT. 313 576. He contended that the agreement was in anticipation that the Governor’s consent thereto would be obtained and so the agreement could not be void particularly as the consent of the Governor was never applied for by the Respondent and denied. That even when the Suit was filed in 2013, by 2015 the Respondent was still making effort to secure the consent or approval of the Government. He argued that by the provision of Section 22 (2) of the Land Use Act there must exist some form of agreement before the Governor’s consent can be sought in that regard and cited the case of AWOJUGBAGBE LIGHT INDUSTRIES LTD. V. CHINUKWE & ANOR. 1995 4 NWLR PT. 390 379. That the worst scenario is that the document between the parties was inchoate until consent is obtained or denied and cited the cases of AWOJUGBAGBE LIGHT INDUSTRIES LTD. V. CHINUKWE supra, OKONKWO V. CCB NIG. PLC 1997 6 NWLR PT. 507 408 and DOHERTY V. IGHODARO 1997 11 NWLR PT. 530. Further that by virtue of Section 169 of the Evidence Act, the Respondent was estopped from contending that Exhibit 3, the agreement between the parties was void as it behoved it to apply and obtain the Governor’s consent and cited in support the cases of ADEDEJI V. NATIONAL BANK OF NIGERIA 1989 1 NWLR PT. 96 212 and UGOCHUKWU V. CCB NIG. LTD. 1996 6 NWLR PT.456 524. Therefore, the Court was wrong to have held that the transaction in Exhibit 3, was void.
It was also argued for the Appellant that there was no breach of the Covenant in Clause 7 as it was merely completing the uncompleted structure built by the Respondent with minor and negligible amendments for which it secured approval of the relevant government authority as contained in Exhibits 5A and 5. And that the finding to the contrary by the Court was perverse. He argued that for the Court to have gone ahead to find occurrence of breach after having held that Exhibit 3 was void is a clear case of approbation and reprobation. He urged that the verdict of the Court be set aside as it is absurd. He asserted that there was no admission by the Appellant in paragraphs 8 and 12 of its amended Statement of Defence that it was turning the property into a hotel. Consequently, the Court’s conclusion is totally extraneous and out of speculation, without evidence in support. He submitted that the terms of Exhibit 3, the agreement, required that the property be used for residential purposes and there is nothing therein that restricted size or number of rooms or provision of other facilities on the property. Further that there was no evidence to the effect that the government’s approval to the Appellant for the reconstruction was wrongful or invalid.
The learned Counsel argued that the two (2) sets of the Respondent’s claims are in the alternative and therefore the grant of one completely excludes the other. Further that, given the inconsistent findings and holdings of the Court, all the reliefs granted by the Court cannot stand and should be set aside. In conclusion, he urged in consequence that this appeal be allowed and the judgment at the Court below set aside.
RESPONDENT’S SUBMISSION
The learned Counsel for the Respondent, Mr. O. N. Enechionyia Esq., submitted that the Courts have moved away from the position that a suit is rendered nugatory because the legal practitioner failed to sign the writ as was held under BRAITHWAITE V. SKYE BANK PLC supra and rather now posits the contrary as held by the apex Court in the case of AJIBODE & ORS V. GBADAMOSI 2021 LPELR-53089 SC. Therefore the Appellant can no longer raise the issue at this appellate stage having acquiesced to the proceedings all through the trial at the Court below, he added.
It was argued that the agreement between the parties, Exhibit 3, the Deed of Assignment which was entered before the consent of the Governor was obtained, is not unknown to law and in support cited the case of AWOJUGBAGBE LIGHT INDUSTRIES LTD. V. CHINUKWE & ANOR. supra. He asserted that from the evidence before the Court, the Governor’s consent was sought but refused as contained in the testimony of the PW1 under cross-examination because the Appellant was in violation of the purpose Clause. In support, he cited the cases of MINAJ HOLDINGS LTD. V. AMCON 2015 LPELR-24650 CA, OLADEJO V. NIGERIAN BREWERIES PLC 2007 LPELR160 and WEST AFRICAN PORTLAND CEMENT PLC. V. ODUNTAN & ANOR 2007 LPELR 9046. The purpose Clause as contained on page 4, paragraph 7 of Exhibit 3, the Deed of Assignment is that breach of covenant/contract is a ground for forfeiture and cited in support the case of UDE V. NWARA 1993 2 SCNJ 47. The Court was therefore correct when it held that the transfer of interest to the Appellant was void for lack of the consent of the Governor.
The learned Counsel asserted that the Court carefully evaluated the evidence presented before reaching its conclusion. Therefore, the Court did not err in its duty neither did it reach a perverse judgment and cited in support the case UMAR V. BAYERO UNIVERSITY 1988 4 NWLR PT. 86 85.
With regard to the grant of all the reliefs in favour of the Respondent including those in the alternative, it was argued that the reliefs were not and could not be mutually inconsistent in any manner as the Court found the agreement between the parties void. He argued further that the Appellant failed to show that he suffered any wrong by the Court’s conclusion and in support cited the case of OGAR V. IGBE 2019 9 NWLR PT. 1678 543.
In conclusion, he urged that the appeal be dismissed as without merit.
THE POSITION OF THE COURT
I shall now proceed to consider the Appellant’s Issues already adopted in the determination of this appeal having very carefully gone through all the processes as well as the Record, before this Court. The issues which will be considered together are hereunder reproduced for ease of reference as follows:
“i. Whether the non-signing of the writ of summons by the Plaintiff/Respondent or its legal practitioner rendered the instant suit incompetent and deprived the trial Court of jurisdiction to entertain same.
ii. Whether the trial Court was right in holding that the written agreement between the Appellant and the Respondent for the transfer of interest over Plot 479A, First Avenue Independence Layout Enugu (Exhibit 3) was void for lack of Governor’s consent to the transaction.
iii. Whether the trial Court was right in holding that the Appellant was in breach of the express covenant in Clause 7 of the written agreement between it and the Respondent over Plot 479A, First Avenue Independence Layout Enugu (Exhibit 3).
iv. Whether the trial Court was right in granting in favour of the Respondent mutually inconsistent reliefs and/or reliefs claimed in the alternative.”
The Appellant before this Court has raised the issue of non-signing of the Respondent’s Writ of Summons either by the Respondent who was the Plaintiff at the Court below or a legal practitioner according to Order 6 Rule 2(1)(2) and (3) of the Civil Procedure Rules of Enugu State of 2006. He therefore submitted that the writ was incompetent and the Court was thereby robbed of its jurisdiction. Consequently, the Respondent’s Suit was incompetent, the entire proceedings nullified and the judgment should be set aside he added.
In considering this issue, it is pertinent to refer to relevant provisions of the Enugu State High Court Civil Procedure Rules 2006. Order 5 on Non-compliance is relevant. I shall hereunder reproduce Orders 6 and 5 of the Rules thus:
Order 6 Rule 2(1), (2) and (3) state as follows:
“ISSUE OF ORIGINATING PROCESS
2. 1) The Registrar shall seal every originating process, whereupon it shall be deemed to be issued.
2) A Plaintiff or his Legal Practitioner shall, on presenting any originating process for sealing, leave with the Registrar as many copies of the processes as there are defendants to be served plus extra copies for the Court and registry use.
3) Each copy shall be signed by the Legal Practitioner or by a plaintiff where, if a natural person, he sues in person, and shall be certified after verification by the registrar, as being a true copy of the original process filed.”
Order 5 thereof with the title Effect of Non-Compliance.
“EFFECT OF NON – COMPLIANCE
1. Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
2. The Court may on the ground that there has been such a failure as mentioned in Rule 1, and on such terms as to costs or otherwise as it, thinks just, set aside either wholly or in part, the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may make an order to rectify or regularize the proceedings, and may allow such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit.
3. An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceedings after becoming aware of the irregularity.”
It is on record that the Appellant filed its statement of defence in response to the Respondent’s claim, participated throughout to address stage and thereafter to the time judgment was delivered therein. The Appellant did not raise any issue against the proceedings but went ahead with the trial and took “fresh step in the proceedings after becoming aware of the irregularity” only for it to now complain for the first time on appeal, after judgment was given in favour of the Respondent. In my considered view and humbly, based on aforestated provisions of Order 5, particularly Subrule (3) in pursuit of substantial justice, notwithstanding the non-signing of the Respondent’s process, the Appellant had bound itself to the proceedings having gone ahead with it. It is now rather too late in the day for the Appellant to seek to nullify all that transpired at the Court below. One is instructed and fortified in this position given the firm and settled stance of the Courts, always demonstrated by the apex Court that, Courts pursue to do substantial justice and not technical justice. It is for the forgoing reasons that one finds against the Appellant on the first Issue which is consequently resolved in favour of the Respondent.
In the evaluation of the evidence presented, the Court below made the following findings along with which I shall consider Issues ii, and iii.
It is pertinent to note that from the Record, both parties accepted that Exhibit 3, the Deed of Assignment was binding on them, the contract as it were between both parties. Contained in Exhibit 3, is Clause 7 which is referred to as the purpose clause and it provides thus:
Clause 7
“The Assignee covenants that all that development on the property shall be for residential only and any violation of this purpose clause shall render this deed void.”
The foregoing was agreed by both parties when they entered into the agreement. The Respondent’s Suit was hinged on the allegation or complaint that there was breach of the aforestated covenant by the Appellant. The Appellant denied any breach and claimed that it was only carrying out or effecting minor and negligible alterations to the 80% uncompleted structures on the property in question. The Court found contrary to the position of the Appellant from paragraphs 8 and 12 of the amended statement of defence and Exhibits 5 and 5A the building plan approved for the Appellant by the Enugu Capital Territory Development Authority. It stated thus on page 255 of the Record:
“The Court cannot be deceived by the captioning of Exhibit ‘5A’ as PROPOSED AMENDMENT SCHEME OF AN APPROVED RESIDENTIAL SERVICE APARTMENT.”
From the record and as contained in Exhibit 5A, the Court found that the existing structure by the Respondent showed the ground floor with a verandah, car port, entrance lobby, one large living room, a private lounge, a bar and lounge, a dinning room, a kitchen, two guest rooms and two toilets/bathrooms, the first floor has four 4 bedrooms, one master bedroom, upper sitting room, one study room and terrace with four balconies and three toilets/bathrooms attached to the rooms. The amendment or alteration shows the “ground floor has a big hall, many rooms, many parlours, verandah, foyer, offices, reception, nooks etc. The first floor of the renovated edifice will have more than 30 rooms named differently and each room is ensuite, so many suites of a bedroom and a parlour with toilets and baths etc. …the second floor plan also with rooms and other facilities.” See page 256 of the Record.
According to the Court as stated on page 256 of the Record: “Such alterations cannot be “minor and very negligible” as stated by the defendant. The alterations are monumental and massive. It cannot be for residential purpose. It is meant for hotel or commercial purposes.”
The Court therefore found and correctly in my humble view thus on page 259 of the Record:
“I am therefore satisfied that the defendant is in breach of the express covenant contained in Clause 7 at page 4 of Exhibit ‘3’. Exhibit ‘3’ is the Deed binding the parties to this suit. The trite law is that parties are bound by the terms of their agreement so long as it is not fraudulent or as a result of misrepresentation as to material fact.”
Having found that the Appellant was in breach of Clause 7, the Court further found thus and correctly in my view with regard to Exhibit 3, the Deed of Assignment between the parties on page 260 of the Record:
“…That being the case, Exhibit ‘3’ has become dead instantly. It has been rendered void on the agreement of the parties by the conduct of defendant, and the Court has no option but to pronounce so. Exhibit ‘3’ is hereby declared void and of no effect whatsoever.”
The finding of the Court accords with the terms of the agreement with which both the Appellant and the Respondent had bound themselves with respect to the purpose Clause which states that “any violation shall render this deed void”. Therefore, what the Court held in that regard was not outside the contractual terms of the parties.
It was clear and not in doubt from the record herein that as between the parties, what was assigned to the Appellant was the unexpired residue of the Respondent’s interest in the property in issue, plot 479A First Avenue Independence Layout, Enugu. In my view and humbly from both sides there is no doubt that they were both aware of the fact that perfection of the Assignment was conditional and dependent on the consent of Enugu State Governor and that it was the responsibility of the Respondent to pursue and obtain it.
The relevant Sections of the Land Use Act are Sections 22 (1) and 26 in respect of the parties agreement, liabilities and entitlement. Section 22 (1) states as follows:
“22 (1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Government to alienate his right of occupancy or any part thereof by assignment, mortgage transfer of possession, sublease or otherwise however, without the consent of the Governor first had and obtained.”
“Section 26 Any transaction or any instrument which purports to confer or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.”
The Respondent was rightly referred to as the holder of the statutory right of occupancy over plot 479A. The Court found that the Respondent’s alienation of same without the consent was illegal as it was unlawful under the above quoted Section 22 (1) of the Land Use Act. It is necessary to state that the Court’s analysis and evaluation was correct to the effect that Exhibit 3, the Deed of Assignment can be taken to meet the provision of Section 22 (2) of the Land Use Act, which allows the holder of statutory right of occupancy to enter into some form of negotiation, which may end with a written agreement for presentation to the Governor for his necessary consent, but such agreement as Exhibit 3 would not become effective, until the consent of the Governor was obtained. Whereas herein, the Court found that there was no Governor’s consent in respect of the Assignment to the Appellant of plot 479A, it therefore correctly held as follows on pages 267-269 of the Record:
“In the circumstance of the instant case, in the absence of the consent of the Governor of Enugu State being given to the plaintiff to assign the land in dispute, that is, plot 479A First Avenue, Independence Layout, to the defendant, I hold that the assignment vide Exhibit ‘3’ is invalid, null and void and did not transfer any title to the defendant. The title to the land still resides in the plaintiff.”
It therefore concluded correctly thus:
“The combined effect of these two situations is that no matter how one looks at it, the Exhibit ‘3’ is null and void. It is either null and void by virtue of the operation of Clause 7 at page 4 of Exhibit ‘3’ in that the defendant has breached that of provision or that Exhibit ‘3’ is null and void under Sections 22 (1) and 26 of the Land Use Act 1978 because the Governor’s consent have (sic) not been obtained.
Since this is the situation, the Court is satisfied that the plaintiff have (sic) proved her (sic) case and is entitled to judgment.
On the whole, I hold that the plaintiff have (sic) proved his case and is entitled to the reliefs it is claiming in this suit …”
See pages 269-270 of the Record.
It is important to note that the finding of the Court on page 262 of the Record where it held thus:
“I therefore hold that the fact of lack of Governor’s consent was sufficiently pleaded by the Plaintiff and sufficiently admitted by the defendant, and so was properly raised and canvassed by the Plaintiff.”
is supported by the pleadings of both parties as contained in the Record.
On the grant of all the reliefs sought including those in the alternative by the Respondent, issue iv, one is unable to agree with the position of the Court in that regard. The Respondent sought reliefs a-f in the main and in the alternative, reliefs g and h. The law is trite that where the main claim of a party succeeds and is granted by the Court, there is no need to consider any alternative claim thereto. See the case of XTOUDOS SERVICES NIG. LTD & ANOR V. TAISEI WA LTD & ANOR. 2006 LPELR 3504 SC. In consequence, only the main reliefs granted shall stand, the Court was wrong to have gone ahead to grant the alternative reliefs.
In the light of the foregoing, issues i, ii and iii are resolved against the Appellant save Issue iv in his favour. In the result, this appeal succeeds in part as only the main reliefs a, b, c, d, e and f granted to the Respondent are affirmed. Reliefs g and h in the alternative are set aside as they should not have been granted.
The judgment of the Enugu State High Court delivered by Hon. Justice C. O. Ajah on April 9th, 2019 is hereby affirmed save reliefs g and h which are hereby set aside.
HARUNA SIMON TSAMMANI, J.C.A.: I read in draft the judgment delivered by my learned brother, E. O. Williams-Dawodu, JCA.
Having carefully studied the evidence on record and the submissions of learned counsel on this appeal, I agree that this appeal be allowed in part. On that note, I hereby affirm the judgment of the Enugu State High Court of Justice delivered on the 9th day of April, 2019.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance the draft copy of the leading judgment just delivered by Lord, Elfrieda Oluwayemisi Williams-Dawodu, JCA. I have gone through the reasoning and the conclusions reached therein to the effect that the appeal succeeds in part, and ought therefore, ought to be allowed in part. I agree!
My Lords, I shall by way or contributing to the analysis in the leading judgment just say a word or two. I am aware that in law competence is fundamental to adjudication by a Court of law. However, a Court of law must at all times and in all cases prefer and administer substantial justice over and far above mere technicality. Nevertheless, I have no doubts in my mind that adherence to technical justice may still have its adherents and apostles, but still the era of technical justice riding roughshod over and above substantial justice is long gone in our Courts.
Nowadays, the Courts have charted a new path aimed at consolidating substantial justice between the parties and would sparingly accord mere technicality, just for its own sake, any pride of place except in very well deserving cases. Thus, in the legal jurisprudence in Nigeria today, substantial justice is king and I choose to join my learned brother in the leading judgment to do substantial justice in this appeal to parties. Decided authorities on this position of the law are legion and are replete in the law Reports, but suffice to refer to the following authorities, most of which decisions are my own decisions, since charity should begin at home. See Ganiyu V. Oshoakpemhe & Ors (2021) LPELR – 53222 (CA) AT Pp. 111 – 113, per Sir Biobele Abraham Georgewill JCA; Ikoya Properties V. Sowemimo & Ors (2016) LPELR-42238 (CA) pp. 35 – 37, per Sir Biobele Abraham JCA; Union Bank (Nig) Plc V. Koleoso (2017) LPELR – 42723 (CA) (g) pp. 26 – 27, per Sir Biobele Abraham Georgewill JCA; African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 AT p. 365 – 366, per Sir Biobele Abraham Georgewill JCA; Andrew Ize Iyamu V. Oshoakpemhe & Ors (2021) LPELR – 53228 (CA) pp. 119 – 121, per Sir Biobele Abraham Georgewill JCA.
It is for the above comments of mine and for the fuller reasons set out in the leading judgment that, I too hold that the appeal succeeds in part and therefore, ought to be allowed in part. I therefore, join my learned brother in the leading judgment to allow the appeal in part. I shall abide by the consequential orders made in the leading judgment, including the order as no cost.
Appearances:
Dr. M. V. C. Ozioko, Esq. For Appellant(s)
Chukwuma l. Enehiowyia, Esq. For Respondent(s)
