N.I.C & ANOR v. OCHEINECHI & ANOR (2020)

N.I.C & ANOR v. OCHEINECHI & ANOR

(2020)LCN/14411(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, July 29, 2020

CA/A/320/2018

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. NATIONAL INSURANCE COMMISSION 2. COMMISSIONER FOR INSURANCE APPELANT(S)

And

1. OHUGBOCHE ANNE OCHEINECHI 2. HONOURABLE MINISTER OF FINANCE RESPONDENT(S)

RATIO

WHETHER OR NOT GROUNDS AOF APPEAL ARE FORMULATED IN NUBIBUS

In the Supreme Court case of SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 261) 156 AT 184, per Karibi-Whyte, JSC observed thus:
“It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.” See also EGBE VS. ALHAJI (1990) 1 NWLR (PT. 128) 546 AT 590.

It has been held in plethora of cases that the grounds of appeal are not formulated in nubibus. They must be in firma terra, mainly arise from the judgment. However, meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. This is the precondition for the vesting of the judicial powers of the Constitution in the Courts. Parties are not at liberty to argue grounds not related to the judgment appealed against. In the case of THE MINISTER OF PETROLEUM & MINERAL RESOURCES VS. EXPO-SHIPPING LINE (NIG.) LTD (2010) LPELR-3159(SC), (2010) 12 NWLR (PT. 1208) 261 SC, the Supreme Court, per Adekeye, JSC said:
“The grounds of appeal are the reasons for considering a judgment or decision of a Court wrong. The purpose of the grounds is to isolate and accentuate, for attack, the basis of the reasoning of the decision being challenged. It is furthermore meant to give notice to the Respondent of the errors complained of. The grounds of appeal filed and argued should address themselves to and consider the facts of each particular case.” See also:Ikweki v. Ebele (2005) 7 MJSC 125; CCB Plc. v. Ekperi (2007) 4 MJSC 172.

Competent grounds of appeal must relate to the decision on appeal and should constitute a challenge to the ratio of the decision, thereby conforming to these basic principles. Issues formulated for determination in an appeal are meant to be distilled from a combination of the essential complaints of an Appellant in the grounds of appeal. Any issue distilled from an incompetent ground of appeal is itself incompetent and must be struck out, alongside any arguments based thereon. See the cases of ODEH VS. F.R.N. (2008) 13 NWLR (PT. 1103) 1 and A.I.B. LTD VS. INTEGRATED DIMENSIONAL SYSTEM LTD (2012) LPELR-9710(SC). PER IDRIS, J.C.A.

THE MEANING OF STARTING A TRIAL DE NOVO

What does it mean when a matter starts de novo? It has been elaborately explained in the case of NANA & ORS VS. NINGI & ORS (2018) LPELR-46399(CA) thus:
“By Wex Legal Dictionary, DE NOVO means “from the new”. When a Court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous Court to hear the case. The expression trial de novo means a “new trial” by a different tribunal. The Latin word means “afresh”, “a new”, “beginning again”. Trial de novo is a new trial on the entire case, that is, on both questions of facts and issues of law, conducted as if there had been no trial in the first instance. See: BLACK’S LAW DICTIONARY NINTH EDITION PAGES 1431 AND 1645; OMOSAYE V. THE STATE (2014) LPELR – 22059 (SC). In a trial de novo the case must be proved anew or rather re-proved de novo, and therefore, the evidence and verdict given as well as the Judge’s findings, at the first trial are inadmissible on the basis that prima facie they have been discarded or got rid of. This is the reason why it is a fundamental of the doctrine of res judicata that no finding of the Court or of a jury which has proved abortive, a new trial having been directed, will give rise to a valid plea of “estoppel”. GIPPS V. GIPPS & HUME (1864) 11 H.L.CAS 1: 1861 – 73 ALL E.R.REP.138; FADIORA & ANOR V. GBADEBO & ANOR (1978) LPELR – 1224 (SC); OSONDU & ANOR V. NDUKA & ORS (1978) LPELR – 2811 (SC). In ROE V. R.A. NAYLOR LTD. (1918) 87 L.J.K.B. 958, the Court of second trial refused to admit in evidence some findings made by the Court of first trial as it was of the view it was inadmissible and dealing with the point in the Court of Appeal, Swinfen Eady M.R. observed: “Counsel for the Appellants sought to rely upon some findings of the Judge in the first trial of the action. In my opinion he is not entitled to do that. This action was sent for a new trial, and the second trial superseded the first, and any finding in the first action was got rid of when the action was sent for new trial…” See: GRAY V. DALGETY & CO. LTD. (1916) 21 C.L.R. 509; VENN V. TEDESCO (1926) 2 K.B. 227. This position of the law is consistent with the paragraph dealing with the effect of an order for a new trial, the learned authors of PHIPSON ON EVIDENCE 12TH EDITION AT PAGE 706 ARTICLE 704 (last paragraph) stated: “In new trials, the case must be reproved de novo, and the evidence and verdict given, and the Judge’s findings at the first trial are inadmissible. “This meaning and purport of a de novo trial can by no means be thwarted. The issue here is whether the decisions of this Court in EYO V. EKPENYONG (2012) 11 NWLR (PT. 1311) 316; and; are in conflict and whether the decision in EYO V. EKPENYONG (supra) is applicable to the suit leading to this appeal. (Underlinings are mine)
In the case of U.I.T.H.M.B. VS. OLORUNTOLA (2007) ALL FWLR (PT 370) 1415 AT 1442 – 1443 PARAS. E – E (CA) it was held Per Ogunwumiju JCA that:
”What is a trial de novo? The latin maxim ‘de novo’ means ”new”, ”fresh”, a ”beginning”, a ”start”. In Black’s Law Dictionary, de novo trial means – ‘Trying a matter anew, the same as if it had not been heard before and as if no decision had been previously rendered. … new hearing or a hearing for the second time, contemplating an entire trial in same manner in which the matter was originally heard and a review of previous hearing. PER IDRIS, J.C.A.

THE ESSENCE OF AN OMNIBUS GROUND OF APPEAL

In the Supreme Court case of OSOLU VS. OSOLU (2003) 11 NWLR (PART 832) PAGE 608 it was held per Musdapher, JSC (as he then was) that:
“An omnibus ground also implies that there is no evidence which if accepted would support the finding of the trial Court.”
Also, in the case of AJIBONA VS. KOLAWOLE (1996) 10 NWLR (PART 476) PAGE 22, the Supreme Court further held per Ogwuegbu, JSC that:
“An omnibus ground of appeal is therefore designed to allow a complaint on evaluation of evidence and it encompasses complaint of improper evaluation of evidence. It further implies that there is no evidence which if accepted would support the findings of the trial judge.”
In the case of ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA VS. GOVERNOR OF BAYELSA STATE & ORS (2019) LPELR-47261(CA), it was held that:
“It is firmly settled that an appeal predicated on omnibus/general ground is not at large. It cannot be used to raise an issue or issues of law. Such issue of law must be raised as separate ground of appeal and not an adjunct to the omnibus general ground.” See Calabar East Co-op Thrift Credit Society Ltd & Ors V. Ikot (1999) LPELR 826. PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a Motion on Notice filed on the 15th of December, 2014, the 1st Respondent who was then Applicant sought for the following reliefs before the National Industrial Court, sitting in Abuja.
1. A DECLARATION that the Respondent being public body/public officers have a duty under the extant law of the Federal Republic of Nigeria and the Civil Service Rules thereat to obey by complying and carry out lawful directive of Federal Government of Nigeria directed to them such as contained in the letter/instrument of 11th June, 2009 with Reference No. BPSR/ADM/167/IV/223 enjoining them to re-instate the Applicant forthwith which they have failed/refused to do.
2. AN ORDER directing the Respondents to immediately comply with directives of the said letter/instrument of 11th June, 2009 by re-instating the Applicant to her position/office forthwith.
3. AND SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of the case.

The 1st Respondent was employed as a staff of the 1st Appellant, an agency of the Federal Government of Nigeria charged

with the responsibility of supervising, controlling and monitoring insurance business in Nigeria. However, the 1st Respondent claimed that despite her diligence and dedication to her job, her employment was abruptly terminated in 2008 based on a restructuring exercise and no reason was proffered.

The 1st Respondent also claimed that there was no such restructuring exercise as there was no authorization for same from the Federal government. When Former President Umar Yar’adua assumed office, he set up a review committee to examine the whole exercise and those affected by it.

By a letter dated the 11th of June, 2009, the Honourable Minister of Finance directed the Appellants to reinstate the 1st Respondent. The Appellants refused to obey this directive.

By a letter dated the 21st of November, 2011, the 1st Respondent caused her lawyers to write to the Appellants, urging them to obey the directive and reinstate the 1st Respondent.

Still refusing to reinstate the 1st Respondent, she filed and served a pre-action notice on the Appellants and instituted this action before the National Industrial Court.

The Appellants in response filed

a memorandum for conditional appearance and also a notice of preliminary objection, challenging the jurisdiction of the Court on the grounds that the issues in the instant suit had already been decided in another case decided by Honourable Justice Kolawole and also, the cause of action arose in 2008 and the 1st Respondent was just initiating the action in 2014. Thus, the suit was caught up by the principle of estoppel and the operation of the Public Officers Protection Act.

By a judgment delivered by Justice E.N. Agbakoba on the 15th of December, 2017, it was held that the Appellants, being a public body/public officers had a duty under the extant laws of the Federal Republic of Nigeria and the civil service rules to obey by complying with the directives contained in the letter dated the 11th of June, 2009, directing the reinstatement of the 1st Respondent. The Court further ordered the Appellants to reinstate the 1st Respondent immediately and the trial judge also awarded the cost of N300,000 as cost of litigation.

Unhappy with the judgment of the trial Court, the Appellants filed their Notice of appeal dated the 15th of March, 2018, comprising of

five grounds of appeal.

The Appellants’ counsel filed their brief of argument on the 21st of May, 2018 and it was settled by Tairu Adebayo, Esq. Four issues for determination was distilled.
1. Considering the facts and circumstances of this case, whether the suit instituted before the lower Court cumulating into this appeal was not statute barred (Distilled from Grounds 1 and 2 of the Notice of Appeal).
2. Considering the burden of proof placed on the 1st Respondent (Applicant at the trial Court) before the lower Court, whether the lower court was right when it gave no evidential value to Exhibit AM-5, considering the fact that the Respondent had been paid her final entitlement by Exhibit OOC.2 (Distilled Ground 3 of the Notice of Appeal).
3. Whether the 1st Respondent placed sufficient materials before the lower Court to have entitled her to the grant of the order of mandamus in her favour (Ground 5 of the Notice of Appeal).
4. Whether the lower Court was right when it awarded the sum of N300,000.00 (Three Hundred Thousand Naira) in favour of the 1st Respondent against the Appellants as cost of the suit without any pleadings or

proof from the 1st Respondent to support same. (Distilled from Ground 4 of the Notice of appeal).

On issue one, the Appellants’ counsel has argued that considering the facts and circumstances of this case, this suit instituted before the lower Court by the 1st Respondent cumulating into this appeal was statute barred. It was argued that since the Appellants were public officers created by National Insurance Commission Act CAP N53, Laws of the Federation of Nigeria, 2004, they are covered by Section 2(a) of the Public Officers Protection Act.

It is the Appellants’ argument that the suit was statute barred as at the time it was instituted before the trial Court. In calculating the period of limitation, this Court was urged to look at the Originating process. Reference was made to OFILI VS. CIVIL SERVICE COMMISSSION (2008) ALL FWLR PART 434 PAGE 1260 @ 1634.

It was argued by Appellants’ counsel that from the affidavit in support of the originating motion filed by the 1st Respondent at the trial Court, the cause of action arose on the 4th of September, 2008 and 11th June, 2009 when she was disengaged and when the alleged directive

reinstating her was allegedly issued respectively.
It was further argued that the suit was clearly statute barred having been filed outside the three months notice allowed by Section 2(a) of Public Officer’s Protection Act. The Appellants’ counsel has argued that the defences raised by the 1st Respondent to this issue at the trial Court were; the refusal of the Appellants to obey the directive ordering the reinstatement of the 1st Respondent is a continuous injury of which a fresh cause of action arose each day, the suit was a continuation of Suit No. NICN/ABJ/23/14 between the 1st Respondent and 33 Ors against Dr. Okonjo Iweala, and lastly, that the Appellants acted in bad faith thus they cannot be covered by Section 2(a) of the Public Officers Protection Act.

It was submitted by Appellants counsel that the doctrine of continuous injury could not avail the 1st Respondent both in respect of the disengagement Exhibit OOC.2 and the purported letter directing her reinstatement because both letters were time bound. Thus, it was submitted by Appellants’ counsel that time started counting from the 8th of September, 2008 when the

1st Respondent’s disengagement took effect. Reliance was placed on OFFOBOCHE VS. OGOJA GOVERNMENT & ANOR (2001) ALL NLR VOL 6 PAGE 452 @ 464; OHAKIM VS. AGBASO (2010) 19 NWLR PART 1226 PAGE 174 @ 259.

On issue two, it was submitted by Appellants’ counsel that the trial Court erred in law when it held that Exhibit AM-5 has no nexus with the 1st Respondent’s case and thereby failed to give evidential value to it. It was argued that the 1st Respondent did not discharge the burden placed on her by law to get a declaratory relief from the court. Reference BUBA VS. BUKAR (2003) ALL FWLR PART 183 PAGE 38; NWAOGU VS. ATUMA (2013) ALL FWLR PART 693 PAGE 1893 @ 1912 PARAS E – G.

It was further argued that the trial Court was wrong when it held that there was no nexus between EXHIBIT AM-5 and the suit. It was submitted that the said exhibit is not a document that is inherently inadmissible and as such the trial Court ought to have considered same. The case of APC V B.S.I.E.C (2015) ALL FWLR PART 770 PAGE 1367 @ 1392 – 1393 was cited in support.

On issue three, the Appellants counsel has argued that the 1st Respondent failed to

sway the discretion of the trial Court to grant the order of mandamus sought by not providing sufficient facts in her originating process. Reliance was placed on AYIDA VS. TOWN PLANNING AUTHORITY (2013) NWLR PART 1362 PAGE 226 @ 259.

It was further argued by Appellants’ counsel that the 1st Respondent had no legal right as it had been extinguished by Exhibit AM4, AM5 and OOC.2 and had been paid all her entitlements.

The Appellants also stated that the trial Court raised the issue of the 1st Respondent’s nature of employment suo motu, argued the issue itself and reached a conclusion itself without affording parties the opportunity to address the Court. Reference was made to AIGORO VS. COMMISSIONER OF LANDS AND HOUSING, KWARA STATE (2011) LPELR-9112; UZOHO VS. N.C.P. (2007) ALL FWLR PART 394 PAGE 370 AT 387 PARA G.

On issue four, the Appellants’ counsel argued that the trial Court was wrong in awarding the sum of N300,000 as the cost of litigation in favour of the 1st Respondent because there was no basis for it. It was also argued that cost of litigation is not treated as general damages but as special damages which must

be strictly pleaded and proved. It was further argued that the 1st Respondent did not plead facts to warrant the grant of the cost. Reference was made to DIVINE IDEAS LTD VS. UMORU (2007) ALL FWLR PART 380 PAGE 1468 AT 1509.

The 1st Respondent’s counsel filed a Notice of Preliminary objection dated the 26th of June 2019 and same was argued in her brief of argument.

It was argued by the 1st Respondent’s counsel that the issue of statute bar and estoppel was never raised and decided by the trial judge who had held that the issues were already determined and he was functus officio to adjudicate over same. It was also stated that it was Justice Esowe that determined the issue of statute barred and Res judicata and his ruling was not appealed against by the Appellants.

It was argued that grounds of appeal and issues framed there from must relate to the judgment being appealed against. Reliance was placed on SARAKI VS. KOTOYE (1992) 3 NSCC 331. It was stated that from the Notice of Appeal, it was clearly stated that it was the judgment delivered by Justice Agbakoba on the 15th of December, 2017 that is being appealed against.

The 1st Respondent counsel then argued that the issue of statute bar and estoppel was never decided upon by Justice Agbakoba. Thus, it was submitted that grounds 1 and 2, having no link to the judgment being appealed against are incompetent and should be struck out. Reference was made to FRN VS. TAWAKALITU (2013) ALL FWLR PART 695 PAGE 327.

Also, it was stated that by virtue of Section 24(2) of the Court of Appeal Act Cap C36 LFN 2004, there is a period of 14days within which a party can appeal against an interlocutory decision.

It was further stated that the Appellants had not sought for leave for extension of time to appeal against the ruling or even appeal against the ruling. It was then submitted that when an interlocutory decision is the basis of a ground of appeal without such having been appealed against or if appealed against but out of time, such grounds of appeal are incompetent. Thus, it was submitted that grounds 1 and 2 are incompetent and must be set aside.

It was also argued by the 1st Respondent’s counsel that the Ground 4 of the Notice of Appeal which borders on the award of the sum of N300,000 as cost of litigation is against the

discretional exercise and power to award cost and as such, must pass the furnace of constitutionality as provided by Section 241(2)(c) of the Constitution of Federal Republic of Nigeria (as amended). Thus, the failure of the Appellants to seek leave to appeal in respect of the cost granted against them renders Ground 4 of the Notice of appeal incompetent.

The 1st Respondent’s counsel also argued that ground 3 of the Notice of Appeal is of mixed law and facts and as such, leave must be sought, failure of which renders the ground 3 incompetent. Reference was made to OPUIYO VS. OMONIWARI (2007) ALL FWLR 1093.

Finally, as regards ground 5, the 1st Respondent counsel has argued that it offended Order 7 Rule 2(2) of the Court of Appeal Rules which provides that where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated. Thus, failure of the Appellants to state the particulars renders the ground 5 incompetent.

This Court was urged to dismiss the appeal.

The 1st Respondent filed her brief of argument dated the 26th of June, 2019 and it was settled by

C.A Oshomegie, Esq. A sole issue for determination was distilled thus:
Whether the doctrine of statute barred cum estoppel was applicable to the suit herein and if not, whether the trial Court in the light of the evidence before it was not right in its decision to grant the Applicant’s application for an order of mandamus inclusive of the cost awarded as 1st Respondent.

The 1st Respondent’s counsel argued that the Appellants counsel did not avert his mind to whether Section 2(a) of Public Officers Protection Act Cap P41 LFN 2004 is applicable to this instant case before placing so much reliance on it. It was argued that the said section does not apply to contracts, contracts of service and employment and other circumstances listed as exceptions therein. Reference was made to NATIONAL REVENUE MOBILISATION ALLOCATION AND FISCAL COMMISSION VS. JOHNSON (2019) 2 NWLR PAGE 247.

It was further argued that even if the said section applies to contracts of service and employment, abuse of power/office divests a public officer of taking cover under the section, acting in bad faith strips a public officer of such protection where the injury is

continuous and when the public officer acts outside his statutory and constitutional duties.

The 1st Respondent’s counsel has argued that the doctrine of continuous injury keeps the cause of action alive until the cessation of the said injury. Also, it was argued that for a party to be stopped from litigation upon the doctrine of estoppel, certain facts must be in existence as held in the case of YANATY PETROCHEMICAL LIMITED VS. ECONOMIC AND FINANCIAL CRIMES (2018) ALL FWLR PART 118 PAGE 152 – 153.

Finally, it was argued that the trial Court was right by abiding with the decision of Justice Esowe.

Furthermore, the 1st Respondent’s counsel submitted that an issue framed in an appeal should not be fraudulent but be in accord with the facts as shown on the record. It is the argument of the 1st Respondent’s counsel that Exhibit OOC.2 is not evidence of payment of the 1st Respondent’s final entitlement but it was an expression of intention of the Appellants to pay it. The 1st Respondent had not been paid her final entitlements.

It was also argued that there was no burden of proof placed on the 1st Respondent by law for the

grant of an order for mandamus. Reliance was placed on GANI FAWEHINMI VS. IGP & 2 ORS (2002) 7 NWLR PART 767 PAGE 606.

The 1st Respondent’s counsel also argued that the issue of statutory flavor was raised by the Appellants when it submitted that it had every right to hire and fire any of its employees and the Court had no power to force an employee on an unwilling employer. Thus, the Appellants’ argument that it was the trial Court that raised the issue suo motu cannot carry water.

Finally, the 1st Respondent’s counsel has argued that every Court has the inherent power and discretion to award cost as cost follows event. The case of UNION BANK OF NIGERIA LTD & ANOR VS. NWAOKOLO (1995) 6 NWLR PART 400 PAGE 149 4 SCNJ 93 was cited in support. Thus, the Appellants’ counsel arguments that such cost ought to have been pleaded and proved cannot carry water. This Court was urged to affirm the judgment of the trial Court.

The Appellants’ counsel filed its Reply Brief on the 29th of April, 2020 and it was settled by Tairu Adebayo, Esq.

In response to the arguments raised in the Notice of Preliminary objection,

the Appellants’ counsel have argued that Grounds 1 and 2 of the Notice of appeal emanated from the facts contained at pages 328 – 335 which is the judgment being appealed against. It was further argued that the trial judge adopted the ruling of Justice Esowe on the issue of statute bar and limitation period as contained on pages 315 and 317 of the Record of Appeal.

It was then submitted that Grounds 1 and 2 of the Notice of Appeal are against the judgment of the lower Court however, assuming without conceding that grounds 1 and 2 are against the ruling of the lower Court delivered by Justice Esowe, the objection of the 1st Respondent would still fail as this Court has held in several cases and has incorporated in her practice directions that any appeal against an interlocutory ruling of the lower Court which is of the nature that cannot determine the issues between the parties in finality and which can await the final decision of the lower court should abate and be brought together with the appeal against the final decision of the lower Court. Reference was made to Paragraph 10(b) of the Court of Appeal Practice Direction 2013 and the case of

TUKUR VS. GOVERNMENT OF GONGOLA STATE (1988) 1 NWLR PART 68 PAGE 39 AT 45.

In response to the objection to Ground 4 of the Notice of Appeal, the Appellants’ counsel have argued that the award of cost is a jurisdictional issue which does not require the leave of Court to appeal against it and it also borders on the issue of fair hearing as the Appellants were not afforded the opportunity of responding to the issue of cost awarded to the 1st Respondent which the lower court raised unilaterally suo motu.

It was also submitted that Ground 4 is a ground of law which does not require the leave of court to appeal. Reference was made to AKINYEMI VS. ODU’A INVESTMENT CO. LTD (2012) 17 NWLR PART 1329 PAGE 209 AT 230 – 231.

In response to the objection to ground 5 of the Notice of Appeal, the Appellants’ counsel argued that it was the omnibus ground of appeal which without particulars or misdirection does not make it incompetent as it is clear and devoid of ambiguity. The case of AKINLAGUN VS. OSHOBOJA (2006) ALL FWLR PART 325 AT PAGES 75 – 76 was cited in support.

In response to the 1st Respondent’s brief of argument, the

Appellants’ counsel have argued that the case at the trial Court was not based on contract of service or unlawful termination but it was based on an Originating motion, seeking for an order for mandamus and this Court was urged to discountenance all arguments made by the 1st Respondent in this regard.

Also, as regards the argument made by the 1st Respondent on the issue of abuse of power, the Appellants’ counsel have argued that there is no pronouncement of the trial Court on this issue as it never raised by parties. This Court was urged to disregard it as it is trite law that submission of counsel cannot take the place of evidence. Reference was made to CHABASAYA VS. ANWASI (2010) ALL FWLR PART 528 PAGE 838 @861.

Also, the Appellants’ counsel have argued that the 1st Respondent had been paid all her entitlements based on Exhibit OOC.2, stating that the document speaks for itself.

In respect of the issue of cost, the Appellants’ counsel have argued that indeed cost is at the discretion of the Court but such discretion must be exercised judicially and judiciously. Reference was made to CITIBANK NIGERIA LIMITED VS.IKEDIASHI (2014) LPELR-22447.

It was then argued that the trial Court failed to state the basis for the grant of the cost, thus amounting to the discretion not being exercised judicially and judiciously. This Court was urged to allow this appeal and set aside the judgment of the lower Court.

DECISION ON THE PRELIMINARY OBJECTION FILED BY THE 1ST RESPONDENT
I have read the Grounds of Appeal contained in the Notice of Appeal and I have also seen the arguments made in support of the notice of the preliminary objection filed by the 1st Respondent.

The questions that must be answered are: what judgment were the Appellants appealing against? Was the issue of statute bar and estoppel determined by the trial judge, Justice Agbakoba?

In the case of GOVERNOR OF NASARAWA STATE & ORS VS. SHEWAZA & ORS (2017) LPELR-44032(CA) it was held that:
“There are settled principles that determine the competence of a ground of appeal. Foundationally, for a ground of appeal to be valid and competent, it must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal. The ground of appeal must

arise from and be based on the judgment on appeal, which is the matter in controversy between the parties.”

See also EGBE VS. ALHAJI (1990) 1 NWLR (PT. 128) 546 AT 590.

In the case of THE MINISTER OF PETROLEUM & MINERAL RESOURCES VS. EXPO-SHIPPING LINE (NIG.) LTD

(2010) LPELR-3159(SC), (2010) 12 NWLR (PT. 1208) 261 SC, the Supreme Court, per Adekeye, JSC said:
“The grounds of appeal are the reasons for considering a judgment or decision of a Court wrong. The purpose of the grounds is to isolate and accentuate, for attack, the basis of the reasoning of the decision being challenged. It is furthermore meant to give notice to the Respondent of the errors complained of. The grounds of appeal filed and argued should address themselves to and consider the facts of each particular case.” See also:Ikweki v. Ebele (2005) 7 MJSC 125; CCB Plc. v. Ekperi (2007) 4 MJSC 172.

(PT. 1103) 1 and A.I.B. LTD VS. INTEGRATED DIMENSIONAL SYSTEM LTD (2012) LPELR-9710(SC).

In this instant appeal, the 1st Respondent filed a preliminary objection and the first issue raised therein is that the Grounds 1 and 2 of the Notice of Appeal are incompetent simply because the issues therein were never decided upon by the trial judge and are not contained in the judgment being appealed against. In response, the Appellants’ counsel have argued that indeed, the issue of estoppel and statute bar were decided by Justice M.N. Esowe on the 16th of December, 2015 who was the judge before whom the case was initiated before it started de novo and Justice Agbakoba took over the matter.
The Appellants’ counsel have also argued in paragraph 2.8 of their reply brief of argument that the learned trial judge (Justice Agbakoba) had in his judgment delivered on the 15th of December, 2017 adopted the ruling of 16th December, 2015 as part of his judgment, making it part and parcel of the judgment being appealed against.
I have read the judgment of the trial Court contained on page 315 – 316 of the Records of appeal where it was stated thus:

“…that the issues of statute barred, estoppel and joinder of parties had already been dealt with and I find that this Court in a considered ruling delivered on the 16th December, 2015 by the Honourable Justice M.N.Esowe had made specific pronouncement on these issues. And in law; the position is that “when a trial is starting de novo, it does not mean that processes already filed would be filed afresh. De novo means starting the hearing afresh. All other processes filed remain valid. Orders can only be challenged on appeal to a higher Court i.e the Court of Appeal. Ndukwe-Anyanwu J.C.A EYO V EKPENYONG (2011) LPELR 4549 CA PG 7 PARAS B-D.”
Seeing as the orders made by the previous Court being a concurrent jurisdiction, are by law still subsisting, this Court is unable to address any argument as regards statute barred, estoppel or joinder of parties.” (Underlinings are mine)
From the above quotation, I do not see how the trial judge adopted the ruling delivered by Justice Esowe in his judgment. As clearly stated, the trial judge made it known that even if he had a contrary view and opinion on the ruling

delivered by Justice Esowe, he is unable and prevented by law to address issues decided. I am of the firm belief that the trial judge did not adopt the said ruling and thus, it does not form part of the judgment being appealed against.
The Appellants’ counsel had further stated that it is trite law that any appeal against the interlocutory ruling of the lower Court which is of the nature that cannot finally determine the issues can be merged with the appeal against the final judgment of the Court. In other words, when a ruling is delivered, the person against whom it is made can wait till final judgment and then appeal both together and such appeal will not fail even if the Appellant does not specifically mention that he is appealing against the interlocutory ruling.
In the case of ISHAKU & ANOR VS. KANTIOK & ORS (2011) LPELR-8944(CA), it was held that:
“Then, on the issue, ‘whether an Appellant can raise complaint against interlocutory order in an appeal against final judgment’, I must observe that there are divergent views on it, but, I tend to agree with the views expressed in the hereunder mentioned cases.

In Umana vs. Attah(2004) 7 NWLR Part 871 p.63 at 87, where the case of Aondoakaa vs. Ajo (1999) 5 NWLR Part 602 p. 206 at 226 was referred to, it was held that a ground of appeal from a final judgment in an election petition incorporating a complaint against an interlocutory decision given in the course of a trial is competent. Further, in Okobia vs. Ajanya (1998) 6 NWLR Part 554 p. 348 Ogundare, J.S.C., said thus: “On the issue that the Court below should not have considered the issue of Exhibit M raised by the Defendants before it as there was no application to appeal out of time against the trial Court’s ruling on Exhibit ‘M’, my simple answer (in addition to what my brother Mohammed, J.S.C. said on the issue) lies in Order 3 Rule 22 of the Court of Appeal Rules which provides: “22. No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just”. The Court below was, therefore, not precluded from considering the validity or otherwise of Exhibit ‘M’ notwithstanding that the Defendants did not appeal against the trial Court’s ruling on the document. By

virtue of Order 3 Rule 22, they could still raise the issue on appeal as they, in fact, did in the Court below. It is not necessary for them to seek extension of time to appeal against the interlocutory decision of the trial Court”. This principle was recapitulated by the Supreme Court in Iweka vs. S.C.O.A. (2000) 7 NWLR Part 664 p. 325, again, per Ogundare, JSC, thus: “The Plaintiff has argued that the Court below was in error since he complained about the trial Judge’s order in his appeal against the final judgment of Iguh, J. (as he then was) and cited NIPOL Ltd. vs. Bioku Investment Property Co. Ltd. (1992) 3 NWLR Part 232 p. 727 at 753 in support. I think the Court below was wrong in the reason given by it for refusing the first motion. Order 3 Rule 22 of the Rules of the Court of Appeal provides: “22. No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just”. Under this rule a party who is dissatisfied with a judgment and who appeals against it may raise complaint against any interlocutory order made by trial Court even though he has

not appealed against that interlocutory order when it was made. See Okobia vs. Ajanya & Anor. (1998) 6 NWLR Part 554 p. 348 at 364 – 365. At this juncture, it is imperative to turn to the provisions of Order 18 Rule 10 of the 2007 Rules of this Court which is in pari materia with Order 3 Rule 22 of the 2002 Court of Appeal Rules which stipulates: “No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just.” By the above provision and the elucidation of the principles by the Supreme Court in the aforestated cases, it would be pointless overstretching this issue of whether an Appellant can in the main appeal raise complaint against interlocutory order not appealed against, because of the plain and unambiguous wordings of Order 18 Rule 10 of the 2007 Rules, meaning, therefore, that one can complain in a final appeal about an interlocutory order against which he, previously, did not file any appeal. “Per Orji-Abadua, JCA (Pp. 47 – 49, paras. A – D) What does it mean when a matter starts de novo? It has been elaborately

explained in the case of NANA & ORS VS. NINGI & ORS (2018) LPELR-46399(CA) thus:
“By Wex Legal Dictionary, DE NOVO means “from the new”. When a Court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous Court to hear the case. The expression trial de novo means a “new trial” by a different tribunal. The Latin word means “afresh”, “a new”, “beginning again”. Trial de novo is a new trial on the entire case, that is, on both questions of facts and issues of law, conducted as if there had been no trial in the first instance. See: BLACK’S LAW DICTIONARY NINTH EDITION PAGES 1431 AND 1645; OMOSAYE V. THE STATE (2014) LPELR – 22059 (SC). In a trial de novo the case must be proved anew or rather re-proved de novo, and therefore, the evidence and verdict given as well as the Judge’s findings, at the first trial are inadmissible on the basis that prima facie they have been discarded or got rid of. This is the reason why it is a fundamental of the doctrine of res judicata that no finding of the Court or of a jury which has proved abortive, a new trial having been directed, will

give rise to a valid plea of “estoppel”. GIPPS V. GIPPS & HUME (1864) 11 H.L.CAS 1: 1861 – 73 ALL E.R.REP.138; FADIORA & ANOR V. GBADEBO & ANOR (1978) LPELR – 1224 (SC); OSONDU & ANOR V. NDUKA & ORS (1978) LPELR – 2811 (SC). In ROE V. R.A. NAYLOR LTD. (1918) 87 L.J.K.B. 958, the Court of second trial refused to admit in evidence some findings made by the Court of first trial as it was of the view it was inadmissible and dealing with the point in the Court of Appeal, Swinfen Eady M.R. observed: “Counsel for the Appellants sought to rely upon some findings of the Judge in the first trial of the action. In my opinion he is not entitled to do that. This action was sent for a new trial, and the second trial superseded the first, and any finding in the first action was got rid of when the action was sent for new trial…” See: GRAY V. DALGETY & CO. LTD. (1916) 21 C.L.R. 509; VENN V. TEDESCO (1926) 2 K.B. 227. This position of the law is consistent with the paragraph dealing with the effect of an order for a new trial, the learned authors of PHIPSON ON EVIDENCE 12TH EDITION AT PAGE 706 ARTICLE 704 (last paragraph) stated: “In new trials, the

case must be reproved de novo, and the evidence and verdict given, and the Judge’s findings at the first trial are inadmissible. “This meaning and purport of a de novo trial can by no means be thwarted. The issue here is whether the decisions of this Court in EYO V. EKPENYONG (2012) 11 NWLR (PT. 1311) 316; and; are in conflict and whether the decision in EYO V. EKPENYONG (supra) is applicable to the suit leading to this appeal. (Underlinings are mine)
In the case of U.I.T.H.M.B. VS. OLORUNTOLA (2007) ALL FWLR (PT 370) 1415 AT 1442 – 1443 PARAS. E – E (CA) it was held Per Ogunwumiju JCA that:
”What is a trial de novo? The latin maxim ‘de novo’ means ”new”, ”fresh”, a ”beginning”, a ”start”. In Black’s Law Dictionary, de novo trial means – ‘Trying a matter anew, the same as if it had not been heard before and as if no decision had been previously rendered. … new hearing or a hearing for the second time, contemplating an entire trial in same manner in which the matter was originally heard and a review of previous hearing. On hearing ‘de novo’, Court hears matter as Court of original and not appellate jurisdiction. … An order for a retrial de novo

or a venire de novo is an order that the whole case should be retried or trial de novo or trial anew as if no trial had been in the first instance.’ Mohammed JCA in Biri v. Mairuwa (supra) at page 433 opined as follows – ‘I feel inclined to agree more with the submission of learned counsel for the Respondents on this issue that a trial de novo could mean nothing more than a new trial. This further means that the Plaintiff is given another chance to relitigate the same matter, or rather, in a more general sense, the parties are at liberty, once more, to reframe their case and restructure it as each may deem it appropriate.’ Thus, when one talks about a ”trial” commencing de novo, one is referring to a fresh start of the proceedings in which the slates have been wiped clean ready for new writing. Where as in this case, there was no previous trial but the continuous existence of a suit, cause or matter before the High Court in which certain orders might or might not have been made, the issue of trial de novo strictusensu does not arise. In Biri v. Mairuwa (supra), the Court of Appeal had sent back a case to the Upper Area Court for retrial. The word

‘proceeding’ is defined in the Black’s Law Dictionary 6th edition at page 1204 as follows – ‘… Regular and orderly progress in form of law including all possible steps in action from its commencement to the execution of judgment …’ The word ‘proceeding’ may be used synonymously with ‘action’ or ‘suit’ to describe the entire course of an action in law or suit in equity from the issuance of the writ or filing of the complaint until entry of final judgment. I agree with learned Respondent’s counsel that the suit before the lower court was still a work in progress, there had been no conclusion or break in the chain and what was transferred from Akoja J. to Ajayi J., was still the same transaction in respect of the same suit. In that event, the argument that the trial starting ‘de novo’ before Ajayi J. makes a difference to the ‘birthday’ – the date the writ of summons was first filed is with the greatest respect, fallacious.”
In the Supreme Court case of BABATUNDE VS. P.A.S. & T. A. LIMITED (2007) 13 NWLR (PT. 1050) 113, it was held:
“De novo” is that the hearing or trial of a case is to commence afresh. that a trial de novo

could mean nothing more than a new trial. This further means, that the Plaintiff is given another chance to relitigate the same matter or rather, in a more general sense, in a trial de novo, parties are at liberty to reframe their cases and restructure them as each may deem it appropriate. Parties therefore have the discretion to reframe and restructure their respective cases as they may deem appropriate, to include new facts, claims and reliefs or new facts and defences to the case against them, as the case may be, in a case to be tried de novo. They are not restricted or limited to the initial facts, claims or reliefs or defences made in the case before the order for trial de novo and so are at liberty to put up fresh or new cases which they deem appropriate at the trial of the case denovo, front loading procedure notwithstanding. In such a situation, none of the parties can legitimately and reasonably claim that an amendment to the other party’s pleadings would overreach him or occasion a miscarriage of justice to him since he has the unfettered right and discretion to react to and answer the amendments at the trial de novo.”

Similarly, in the case of OMISORE VS. STATE (2005) 12 NWLR (940) 591 @ 606, it was held by this Court that:
“The effect of starting a case de novo before another judge is to render null all pending proceedings including orders made.” See also Odi vs. Osafile (1987) 2 NWLR (2005) 1510 @ 512, Bamaiyi vs. State (2006) 12 NWLR (994) 221 @ 240, FRN vs. Bulama (2005) 16 NWLR (951), Fadiora v. Gbadebo (supra). By these authorities, the trial and hearing of the case before the judge of the lower Court to who it was transferred for trial de novo, was to commence afresh or start from the beginning again.”
Enough said, from these authorities, I make bold to say that the orders made by Justice Esowe before the matter commenced afresh before Justice Agbakoba had become extinguished and no longer existing. The trial judge was very wrong in holding that the ruling made by Justice Esowe could only be set aside on appeal and he could not address or interfere with same. Immediately the matter started de novo before Justice Agbakoba, the trial judge had an obligation under law to address the issue of estoppel, statute bar and joinder of parties when it was brought before him by the

Appellants.
I do not see any ground of appeal, appealing against the refusal of the trial judge to address the issue of statute bar, estoppel and joinder of parties. Grounds 1 and 2 of the Notice of appeal are not against the ratio decidendi of the judgment of the trial Court. They are infact based on a non existing ruling. Grounds 1 and 2 are hereby incompetent and are hereby struck out. In the Supreme Court case of CO-OPERATIVE & COMMERCE BANK PLC & ANOR VS. EKPERI(2007) LPELR-876(SC), it was held Per Onnoghen, JSC (Pp. 16 – 17, paras. G – C)that:
“It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal. It is still good law that where a ground of appeal as formulated does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against as is evident in the instant appeal, the same becomes incompetent and liable to be struck out. The ground of appeal does not arise from the judgment of the court below neither can it be said

that issue (a) as formulated is derivable from the said sole ground of appeal.”
Grounds 1 and 2 are incompetent, thus, they are hereby struck out.

The 1st Respondent’s counsel has also raised an issue against Ground 4 of the Notice of Appeal, stating that the Appellants ought to have sought for leave to appeal as the said ground of appeal was against the award of cost by the trial judge. The 1st Respondent placed reliance on the provisions of Section 241(2)(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria and sub-section (2)(c) thereof provides thus:-
“Nothing in this section shall confer any right of appeal – (c) without the leave of the Federal High Court or High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
In resolving this issue, the question is, what is the purport of Section 241(2)(c) of the Constitution of the Federal Republic of Nigeria? Does it apply when the only ground of appeal is as to cost or will it apply when

there are multiple grounds of appeal and cost is one of the grounds of appeal?
In the case of GTB VS. ALEOGENA (2019) LPELR-46922(CA) it was held per Ebiowei, JCA that:
“The first thing to address here is the preliminary objection raised by the Respondent to the appeal which was filed on 5/10/16 wherein ground 9 was challenged on the premise that the Appellant should have sought leave as it is an appeal dealing with mixed law and facts. Ground 9 deals with the award of N100,000 as cost against the Appellant. The Appellant is not happy with this award and therefore in ground 9 appeals against this cost. The Respondent is of the view that the Appellant based on the provision of Section 241 (2) (c) of the 1999 Constitution of Nigeria and Section 14 (1) of the Court of Appeal Act, 2004 should have sought for leave. The combine reading of the above provision does not seem to agree with the submission of the Respondent. The provision of Section 241(2)(c) provides that leave will be required if the only ground of appeal is on cost. The Supreme Court has confirmed this position in Joseph Ayanboye & Ors vs. Muritala Oladipo Balogun NSCQR (1990)

In Enwezor vs. Enwezor & Anor (2012) LPELR – 8544 (CA) per Muktar, JCA, this Court held at pages 24 – 25 as follows: “Moreover, it is only when an Appellant appeals solely on costs that he may require leave. Appeal on costs and other issues, not requiring leave, will not require the appealing party to seek for leave. In Anyaso Vs Anyaso (supra) Salami JCA (as he then was) observed thus: “When a party appeals to the Court of Appeal against the decision of a High Court solely as to costs there is no right of appeal except with the leave of the High Court or the Court of Appeal by virtue of Section 220 (2) (c) of the 1979 Constitution. However, the appeal on costs would be as of right if, in addition to appeal as to cost, there is appeal on other issue or issues. In the instant case ground 7 of the grounds of appeal is competent in view of the six other grounds of appeal raising other issues other than issue of costs.” The appeal by the Appellant filed on 17/3/16 which is the notice of appeal upon which this appeal is predicated contains 10 grounds of appeal. The only ground of appeal dealing with cost is ground 9. The other 9 grounds out of

the 10 grounds have nothing to do with cost. They are grounds which are fundamental to the decision of the lower Court vis a vis the real issues before the Court. The real issue before the Court is whether the Appellant can be held liable for the failure of the ATM Machine in London to dispense cash to the Respondent after the amount has been debited to her account she has with the Appellant? This is the main, real and life issue in this appeal. For this issue, it is clear that the Appellant does not need leave of Court. The issue of cost apparently is not the only issue or ground of appeal and since there are other valid grounds of appeal, the said ground 9 cannot be held to be incompetent and indeed the appeal cannot be said to be incompetent. Even if I hold otherwise that ground 9 is incompetent, of what use will that be in affecting the appeal of the Appellant. Certainly none. That in my opinion is why the Constitution of the Federal Republic of Nigeria 1999 and the Courts have made provision and held that the issue of leave becomes important, if cost is the only ground of appeal. As mentioned above, that is not the situation here. In the circumstance, the

notice of preliminary objection fails and the objection is dismissed.” (Pp. 13 – 16, Paras. B – A)
As decided in the cases referred to above, it is the position of law which I firmly agree with that when the sole ground of appeal is on the issue of cost, the Appellants must seek leave to appeal. This is clearly stated in Section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria and sub-section (2) (c) which clearly states that leave must be sought when the ground of appeal is as to costs only. It is ridiculous for the 1st Respondent or anyone to argue that once the issue of cost is a ground of appeal when there are two or other grounds of appeal, leave must be sought. It is a wrong position which is at complete variance with the provisions of the Constitution.
Thus, the argument raised by the 1st Respondent as regards ground 4 of the Notice of Appeal is misconceived and hereby disregarded by this Court.

The 1st Respondent’s counsel has also complained against ground 3 of the Notice of Appeal, stating that the Appellants’ counsel should have sought for leave as the ground is of mixed law and facts. This Court was

urged to declare it incompetent.
In the Supreme Court case of ALLANAH & ORS VS. KPOLOKWU & ORS (2016) LPELR-40724(SC), the Apex Court held per Sanusi, JSC that:
“It is settled law, that failure to seek and obtain leave in respect of a ground of appeal of mixed law and facts render such ground incompetent and in this instant case, where it is the only ground of appeal, the entire appeal is rendered incompetent. That being so, this Court lacks jurisdiction to hear and determine the appeal, in view of the provision of Section 233 of the 1999 Constitution.” (P. 29, Paras. B – D)
Needless to belabor this issue, the law is that when the only ground of appeal or all the grounds of appeal are of mixed law and facts in respect of an interlocutory appeal that is when leave of Court must be sought. However, where there are grounds of appeal that are of law and then some on mixed law and facts, there is no need to seek leave. In any event, where the judgment appealed against, is the final judgment of the lower Court, an appeal will lie as of right. See AQUA LTD VS. ONDO STATE SPORTS COUNCIL (1988) 10 – 11 SCNJ 26,

FHA VS. KALEJAIYE (2011) ALL FWLR (PT 562) 1633. In the case of the National Industrial Court, except in respect of those appeals dealt with under Sections 243 and 254C (5) and (6) of the 1999 Constitution (as amended), once leave to appeal against a final judgment in civil matters has been obtained from the Court of Appeal, no other leave of the appellate Court is required. See SKYE BANK VS. IWU (2017) 16 NWLR (PT1590) 24. Thus, ground 3 of the Notice of appeal is valid and competent.

Finally, the 1st Respondent’s counsel has argued that Ground 5 of the Notice of Appeal is incompetent as it offends Order 7 Rule 2(2) of the Court of Appeal Rules which states that:
“where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
The Appellants’ counsel had argued that this ground is the omnibus ground of appeal of which there is no need for particulars to be stated.
The said Ground 5 of the Notice of Appeal is reproduced for ease of reference:
“The judgment of the trial Court is as unwarranted as it is perverse; and unless reversed, would perpetuate a miscarrage of justice”

The question is: Does this ground 5 qualify as an omnibus ground of appeal?
In the Supreme Court case of OSOLU VS. OSOLU (2003) 11 NWLR (PART 832) PAGE 608 it was held per Musdapher, JSC (as he then was) that:
“An omnibus ground also implies that there is no evidence which if accepted would support the finding of the trial Court.”
Also, in the case of AJIBONA VS. KOLAWOLE (1996) 10 NWLR (PART 476) PAGE 22, the Supreme Court further held per Ogwuegbu, JSC that:
“An omnibus ground of appeal is therefore designed to allow a complaint on evaluation of evidence and it encompasses complaint of improper evaluation of evidence. It further implies that there is no evidence which if accepted would support the findings of the trial judge.”
In the case of ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA VS. GOVERNOR OF BAYELSA STATE & ORS (2019) LPELR-47261(CA), it was held that:
“It is firmly settled that an appeal predicated on omnibus/general ground is not at large. It cannot be used to raise an issue or issues of law. Such issue of law must be raised

as separate ground of appeal and not an adjunct to the omnibus general ground.” See Calabar East Co-op Thrift Credit Society Ltd & Ors V. Ikot (1999) LPELR 826. Now, having raised the issue of using an incompetent process in the course of hearing the preliminary objection culminating in the ruling giving rise to this appeal, I think the Appellant’s counsel has gone at large. He ought to have raised that issue of law as a separate ground and having tied it with the omnibus ground has the effect of corrupting the said ground. This is so because an omnibus ground can stand alone without any particulars, it is complete in itself. See Saraki V. Kotoye (1990) 4 NWLR (Pt 143) 144. The ground also alleges that the decision of the trial Court is perverse. A decision is said to be perverse when inter alia it failed to appreciate or refused to follow a principle of law or procedure which is binding on the Court. See Emmanuel V. Umanah (2016) LPELR 40037. The Appellant ought to have framed the omnibus ground challenging the weight of evidence simpliciter. This is so because by its nature, the omnibus ground is a general ground of fact complaining against the totality

of evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot also be used to raise any issue of law or error of law as was done in this appeal. A perverse finding is an issue of law which ought to attract a separate ground of appeal. See Ihebie V. Nwoba (2013) LPELR 21950. Ground 7 is also incompetent and struck out.” Per Lamido, JCA (Pp. 25 – 28, Paras. C – D)
Clearly, an omnibus ground of appeal is simply directed at the evaluation of evidence. It simply states that there is insufficient evidence to support the findings of the Court. It is true that parties are at liberty to couch their words as they please as they need to rigidly write in a particular way, however, they must wary to avoid writing in a manner that would convey a totally different thing.
In this instant case, the Ground 5 of the Notice of Appeal referred to the perverse nature of the judgment. In the case of NNAJIOFOR VS. PEOPLE OF LAGOS STATE (2015) LPELR-24666(CA), it was held:
“A judgment can be said to be perverse in the following circumstances: (i) It is speculative and not based on any evidence;

or (ii) The Court took into account matters which it ought not to have taken into account; or (iii) The Court shut its eyes to the obvious See the case of OSUJI V. EKEOCHA (2009) 16 NWLR (Pt.1166) 81; SALISU V AMUSAN (2010) LPELR-9013 (CA); NOMSAL MARKETING AND SUPPLIES LTD V JOASY PEN ENTERPRISES LTD (2005) LPELR – 5981 (CA) and ARCHIBONG V STATE (2004) NWLR (Pt. 855) 488 at 498. Where the decision of the Court is not based on the evidence before it, the judgment is perverse.”
Based on this, it is my decision that Ground 5 is incompetent, as it cannot be termed to be an omnibus ground of appeal. It is not directed at the evaluation of evidence and the findings of the Court. It is challenging the principles of law followed by the trial judge and thus, the Appellants should have supported it with particulars. Ground 5 is hereby declared incompetent and struck out.

The preliminary objection therefore only succeeds in part. I shall now proceed and deal with the merits of the appeal.

JUDGMENT ON THE MAIN APPEAL
Having struck out Grounds 1 and 2 of the Notice of Appeal for the reasons stated above, issue 1 of the Appellants’ brief of argument

must suffer the same fate having been distilled there from. However, assuming that I am wrong, I will proceed to determine issue 1 distilled from Grounds 1 and 2 because it bothers on statute bar which is an issue of jurisdiction. However, issue 3 distilled from ground 5 is incompetent and struck out. I will proceed to determine the remaining issues raised by the Appellants.

ISSUES FOR DETERMINATION
1. Considering the facts and circumstances of this case, whether the suit instituted before the lower Court cumulating into this appeal was not statute barred.
2. Considering the burden of proof placed on the 1st Respondent (Applicant at the trial Court) before the lower Court, whether the lower Court was right when it gave no evidential value to Exhibit AM-5, considering the fact that the Respondent had been paid her final entitlement by Exhibit OOC.2.
3. Whether the lower Court was right when it awarded the sum of N300,000.00 (Three Hundred Thousand Naira) in favour of the 1st Respondent against the Appellants as cost of the suit without any pleadings or proof from the 1st Respondent to support same.

ISSUE ONE
Considering the facts and circumstances of this case, whether the suit instituted before the lower Court cumulating into this appeal was not statute barred.

In the Supreme Court case of EGHAREVBA VS. ERIBO & ORS (2010) 9 NWLR (PT. 1199) 411, it was held per Adekeye, JSC that:
“Jurisdiction is a term of comprehensive import embracing every kind of judicial action. It is the power of a Court to decide a matter in controversy and presupposes the existence of a duly constituted Court, with control over the subject matter and the parties. Jurisdiction also defines the power of the Court to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which judges exercise their authority. Jurisdiction is equally to Court what a door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue, because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remains a nullity however well-conducted and brilliantly decided they might have been. A defect in competence is

not intrinsic but rather extrinsic to adjudication.”
In the case of NURTW & ORS VS. FIRST CONTINENTAL INSURANCE CO. LTD (2019) LPELR-48005(CA), Garba, JCA had this to say about the issue of jurisdiction and limitation period:
“The principles of law, generally, on the application of a limitation law to an action filed or brought in a Court of law, are now firmly established in our superior Courts of record in Nigeria such that they are common knowledge. They include: – (i) Limitation laws/statutes impose and limit the period of time within which named claims for the enforcement of legal rights or obligations by use of the instrumentality of the processes of a Court of law in a legal action, shall be initiated or commenced; (ii) That any legal action initiated or commenced after the expiration or outside the period stipulated, prescribed or limited by a limitation law/statute for the initiation or commencement of such an action, is barred by the relevant statute and so becomes legally invalid and judicially incompetent; (iii) That the time limited by law/statute for the purpose of the initiation or commencement of a legal action, starts to

run from the date the cause of the action arose and accrued to the Claimant. (iv) That the cause of an action is the fact or combination of such facts which if proved in a Court of law, would entitle a Claimant to a judicial remedy against another party; (v) That ordinarily, the relevant and material documents or processes to be looked at and considered for the determination of the question whether an action was statute barred or barred by the provisions of a particular limitation law/statute, are the originating processes used or filed to commence or initiate the action which are usually, the writ of summons and Statement of Claim as well as originating summons, as the case may be; (vi) That the date on which the cause of action is shown or indicated to have arisen and accrued to the claimant from the facts set out in the processes and the date on which the processes were filed to initiate or commence the action, would be carefully compared by a Court; (vii) That where the date on the initiating processes is found to be after the expiration of or outside the period of time stipulated and limited for the initiation or commencement of such an action, from the

date the cause of action arose and accrued to the claimant, the action becomes barred by the law/statute and incompetent; (viii) That the law/statute of limitation takes away from a Claimant, not the cause of action, but the right to enforce it by the judicial process of a Court of law; (ix) That the application of limitation law/statute to an action deprives and rob a Court of law, the requisite jurisdiction and competence to adjudicate over the action on the ground that it is barred by the law/statute.”
Does the issue of statute bar affect the jurisdiction of the Court to entertain a matter? Yes it does. The Appellants in this case have raised this, stating that the trial Court lacked the jurisdiction to entertain the matter because the suit was filed long after the 3months limitation period provided for under Section 2 of the Public Officers Protection Act had lapsed.
It is the Appellants’ case that the cause of action arose on the 4th of September, 2008 when the 1st Respondent’s contract of employment was terminated. Also, it was argued that another cause of action arose on the 11th of June, 2009 when the directive ordering

the reinstatement of the 1st Respondent was issued. However, the 1st Respondent instituted the action December, 2014.
It is the principle of law that in the determination of what the cause of action is in a suit, the Court must look only at the statement of claim. In the case of BELLO VS. ATTORNEY GENERAL OF OYO STATE (1986) 5 NWLR PART 45 PAGE 828, it was held that:
“the law is settled that a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving a Plaintiff a substantive right to make the claim against the relief or remedy being sought. In other words, the factual situation on which the Plaintiff rely to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. That is to say, the factual situation relied upon must constitute the essential ingredients of an enforceable right.”
In the case of AKILU V FAWEHINMI (1989) 2 NWLR PART 102 PAGE 122, it was held that:
“concisely stated, an act on the part of the Defendant which gives to the Plaintiff his cause of complaint is a cause of action”

The Straud’s Judicial Dictionary 4th Edition defined cause of action as “the entire set of facts that gives rise to an enforceable claim.” In the case of OGBIMI VS. OLOLO (1993) 7 NWLR PART 304 PAGE 128 at 136, it was held that:
“A cause of action, is in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the Defendant which gives the Plaintiff his cause of complaints and the consequent damage.”
Also, in the case of OBIKA VS. OBIKA (2018) LPELR-43965, it was defined as:
“a cause of action generally refers to every fact which is necessary for the Plaintiff to prove in order to support his right or entitlement to judgment. Put differently, it is constituted by the bundle or aggregate of facts which the law recognizes as giving the Plaintiff a substantive and recognized right to make the claim against the relief or remedy being sought. Thus, the verifiable factual situation on which the Plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right, capable of being

claimed or enforced against the Defendant. In other words, the eventual factual situation relied upon by the Plaintiff must engender the essential factors or ingredients of an enforceable right or claim. Thus, concisely stated, an act on the part of the Defendant that gives to the Plaintiff his cause of complaints is a cause of action.”
Now the question that must be answered is: what is the cause of action in this instant suit? I have read through the Originating motion and one thing is clear, the growls of the 1st Respondent is not the unlawful termination of her employment. It is the perpetual and consistent refusal of the Appellants to obey the directives given by the Federal Government of Nigeria through the Minister of Finance.
The 1st Respondent had sought for an order for mandamus, compelling the Appellants to obey the directives given by the Federal Government and they had refused to obey same.
Is the willful refusal of the Appellants to obey the directives given by the Minister also covered by Section 2 of the Public Officers Protection Act? I make bold to say that it is not. The filing of this suit cannot be said to be statute barred

as argued by the Appellants because the 1st Respondent is simply asking for an order of mandamus to compel the Appellants to obey the directives of the Federal Government. The fact that the period of two weeks was stated in Exhibit OOC.3 as the time within which the 1st Respondent must be reinstated, it does not mean that an action must be filed within the two weeks stated.
The Supreme Court in a number of cases has expounded and propounded a number of exceptions to the protection provided for “public offices” and “public officers” under the Public Officer (Protection) Law. The following are some of such exceptions:
a) Cases of Continuance of Damage or Injury.
b) A situation where the person relying on it acted outside the colour of his office or outside his Statutory or Constitutional duty.
c) Cases of recovery of land.
d) Breaches of contract.
e) Claims for work and labour done.
f) Good faith.
In the IBRAHIM VS. JSC (1998) 14 NWLR PART 584, Iguh, JSC stated at page 32 the circumstances in which Public Officers or authorities are covered by the limitation laws thus:
“It can therefore be said that

Section 2(a) of the Public Officers (Protection) Law 1963 gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment, or outside their statutory or constitutional duty, they automatically lose protection of that law. Thus where a public officer acts outside his public duty or outside the colour of his office, a person who has been affected by an act of such a public officer may institute an action in that regard even after the expiration of the limitation period.
In the case of ATTORNEY-GENERAL OF RIVERS STATE VS. ATTORNEY-GENERAL OF BAYELSA STATE (2012) 6 – 7 MJSC (PT. 111) 149, the Supreme Court stated at pages 181 – 182 that:
“the Public officers (Protection) Act is never intended to deprive a party of legal capacity to ventilate his grievance on the face of stark injustice as a result of which the Act has prescribed two “most important exceptions” as follows: “First, in case of

continuance of damage or injury, the Act permits action to be brought on the expiration thereof outside three months. The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty as claimed by the Plaintiff in this suit.
I have gone ahead to read the provisions of the National Insurance Commission Act 1997 and by virtue of Section 62 of the Act, the Appellants have a statutory duty to obey the directives given to them by the Federal Government through the Ministry of Finance.
Section 62 of the National Insurance Commission Act states:
“The Minister may give to the Commission directives of a general nature or relating generally to matters of policy with regard to the performance by the Commission of its functions under this Decree and it shall be the duty of the Commission to comply with those directives.”
It is clearly stated in the Act regulating the conducts of the Appellants that they have a statutory duty to obey the directives given by the Minister. Thus, it can

be said that the Appellants cannot be covered by the Section 2 of the Public Officers Protection Act as they fall under the second exception stated in the case of ATTORNEY-GENERAL OF RIVERS STATE VS. ATTORNEY-GENERAL OF BAYELSA STATE (SUPRA) as they have defaulted in their statutory obligation. Thus, the suit is not statute barred.

Issue one is hereby resolved against the Appellants.

ISSUE TWO
Considering the burden of proof placed on the 1st Respondent (Applicant at the trial Court) before the lower Court, whether the lower Court was right when it gave no evidential value to Exhibit AM-5, considering the fact that the Respondent had been paid her final entitlement by Exhibit OOC.2.

In the case of ABARIOWEI & ORS VS. WEIWEI & ORS (2018) LPELR-44183(CA), it was held that a declaratory relief is that which is sought from the Court stating the nature and existence of a legal state of affairs which contains no decree to be enforced against any person. See ADIGUN VS. ATTORNEY-GENERAL, OYO STATE (1987) 1 NWLR (PT. 53) 678.
In P.D.P. & ANOR VS. PHILIPS & ANOR (2010) LPELR-8980 (CA) this Court held, per Bada, JCA

on page 9 paragraphs B – C thus:-
“Indeed a declaratory relief merely declares the rights of the parties and is dormant, beyond that it has no force of execution. See WAEC V OSHIONEBO (2006) 12 NWLR Part 994 Pg. 264 at 274 paragraphs F – G.”
Being a judicial exercise of discretion, it is trite that the exercise of discretion should be done judicially and judiciously. In CHIEF JEREMIAH OLAITAN ODUYOYE & ORS VS. ALHAJI ADEBISI LAWAL (BAALE OF IMODI) & ORS (2002) LPELR-5473 (CA) this Court held per Onalaja, JCA as follows:
“The power to make binding declarations of right is discretionary and wide, so it is to be liberally exercised judicially and judiciously depending on the facts and circumstances of each case.” (Pp. 33 – 34, Paras. F – F).

The Appellants’ counsel has argued that the trial Court was wrong in holding that Exhibit AM 5 had no nexus with the 1st Respondent. The Appellants have stated that Exhibit AM 1 – 5 are letters from the Bureau of Public Services Reform signed by the Permanent Secretary upholding the severance of the 1st Respondent from the 1st Appellant’s

employment.
I have looked at the Exhibit AM1 – 5 and they were issued by the Bureau of Public Service Reforms. I agree with the judgment of the trial Court stated on page 325 of the Records of appeal where he held that:
“The Defendants had argued in their affidavit of 18th April, 2015 that the Applicant was notified in a letter dated 13th December, 2010 that her severance from the Respondent was upheld and went on to frontload Exhibit AM5 and three other letters two of which bore the headings “Severance of officers from parastatal” dated December 13, 2010 and 23rd December, 2010. None of these letters were certified and the third letter purporting to be addressed to the Applicant dated 30th December, 2010 with the heading “Re: Disengagement from service” was bereft of any indication of service. See NLEWEDIM V UDUMA (1995) 6 NWLR PART 402 AT PAGE 383, 394 PARAS B followed in AGBAJE V FASHOLA (2008) 6 NWLR PART 1082 where it was held that (a) dispatch book indicating the receipt or (b) evidence of dispatch by registered post or evidence of witnesses are all credible evidence of service of a letter and in the absence of

any such markings, the letter, I find, is only evidence of something written by the maker but communicated to none, and has no nexus to the Applicant notwithstanding it bears the applicant’s name.”
I agree with the trial judge that the Exhibits AM1 – 5 were not certified. Thus, they are inadmissible and no evidential burden can be attached to it.
The Appellants’ counsel has cited cases that copies of public documents attached to an affidavit as exhibits need not be certified true copies because the documents already form part of the evidence adduced before the Court.
This is not the position of the law if the matter is commenced by originating summons or originating motion as in this case. This is because the affidavits in these instances are the evidence themselves.
In the case of KANO STATE HOUSE OF ASSEMBLY & ORS VS. UMAR (2014) LPELR 36251(CA) it was held per Wambai, JCA that:
“the law is that documents attached to affidavits and especially to originating summons where no oral evidence is taken must fully comply with the requirement of the Evidence law to be acted upon by the Court. It makes no

difference that same are only attached to the motion or originating summons, in so far as they are intended to be acted upon by the Court to determine any matter, they must meet the requirements of admissibility. Where such documents, as in the instant case, are by their nature public documents, they must certified to be admissible in evidence and or be relied upon. (pg 39 paras C-F).”
In conclusion on this, Exhibits AM1 – 5 is inadmissible.

The Appellants have argued that the 1st Respondent has not proved sufficient evidence to be entitled to the grant of an order for mandamus. The question is: what does the 1st Respondent need to prove to be granted an order for mandamus?
In the case of AKPUCHUKWU VS. NYSC & ANOR (2018) LPELR-44619(CA) it was held per Pemu, JCA that:
“In establishing the prerogative writ of mandamus, the Applicant must show that a distinct demand for the performance of a duty has been made and that the demand has deliberately not been complied with. – R. V. WITTS & BERKS CANAL CO. 1835 3 AD & EC 477. R. V. STOKE – ON – TRENT TOWN CLERK 1912 12 KB. 518.

In the case of FAWEHINMI VS. I.G.P. (2002) 7 NWLR (PT. 767) 606 it was held by the Supreme Court that:
“Mandamus is a high prerogative writ which lies to secure the performance of a public duty, in the performance of which the Applicant therefore has sufficient legal interest. It gives a command that a duty or function of a public nature, which normally, though not necessarily, is imposed by statute but is neglected or refused to be done after due demand be done. P. 674 para. D per Uwaifo, JSC. 2. Mandamus is issued from the High Court and directed to any person, corporation, or inferior Court, requiring them to do some particular thing which pertains to their office and duty. In its application, it may be considered as confined to cases where relief is required in respect of the infringement of some public right or duty and where no effective relief can be obtained in the ordinary course of action. P. 694 paras. F – H per Mohammed, JSC. 3. The prerogative writ of mandamus is issued or ordered by the Courts to secure or enforce the performance of a public duty. It is pre-eminently a discretionary power and the Court will decline to award it if other legal remedies are

available and effective. An Applicant for the grant of the order must show that he has sufficient legal interest to protect and that he has demanded the performance of the public duty from those obliged to do so and was refused (pp. 697 – 698 paras. H – A). per Kalgo, JSC. 4. A mandamus is a prerogative writ, to the aid of which the subject is entitled, upon a proper case previously shown, to the satisfaction of the Court. And for there to be a proper case previously shown, an essential ingredient forming the background to the facts and circumstances imposing a public duty upon a person alleged to have failed to perform that duty, must be supported by evidence. The Court will not order mandamus unless it is in the public interest p. 686 per Uwaifo, JSC. Having stated my views on the remedy of mandamus which the Appellant had unwittingly brought in without due process I shall refer to the case of Kankara v. COP (2002) 13 NWLR (Pt.785) 596. It was held that the rules of Court must prima facie be obeyed and the Courts have inherent jurisdiction to ensure compliance with rules by litigants. The Court can strike out any process not filed in accordance or in

compliance with the relevant rules. In the instant case, the trial Court was right in striking out the Appellant’s case after realising that it ought not to have been brought by way of originating summons. Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130. UBN Plc. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558 referred to. The cases above cited are apt to the present situation and I would not hesitate in holding that the remedy of mandamus sought through this strange formula is thereby incompetent for non-compliance with the necessary rules of Court.”
The Appellants’ counsel have argued that for the 1st Respondent to be entitled to the grant of an order for mandamus, the 1st Respondent must show the following:
(1) That the Applicant has a legal right.
(2) That the Respondent is a public body/officer.
(3) That the Respondent hold a duty of public nature to do the act in question.
(4) There is no better alternative remedy.
Does the 1st Respondent have a legal right despite the fact the Appellants allege that she had been paid and had received all her entitlement? I will like to determine whether the employment of the

1st Respondent had statutory flavor. To determine this, recourse must be made the National Insurance Commission Act, the Act regulating the Appellants.
Section 14 and 15 of the National Insurance Commission Act provides:
Subject to Sections 10 and 11 of this Decree, the Board
shall, from time to time, appoint for the Commission such number of Directors and other employees as may appear
to it expedient and necessary for the proper and efficient performance of the functions conferred on the
Commission under this Decree.
2. The Commission shall pay its employees such remuneration and allowances, pensions and gratuities and other benefits as it may, with the approval of the Minister, determine.
(15)(1)
The Commission may, with the approval of the Minister, make rules relating generally to the conditions of service of employees of the Commission, and without prejudice to the generality of the foregoing, the rules may provide for
a) the appointment and disciplinary control of all employees of the Commission; and
b) appeals by the employees against dismissal or other disciplinary measures.

Rules made under subsection (1) of this section need not be published in the Gazette but the Commission shall cause them to be brought to the notice of all affected persons in such manner as it may, from time to time, determine.
From the above cited provisions, the employment of the 1st Respondent is clothed with statutory flavor as the condition for service for staff is regulated by the Commission. Thus, whether she received full payments of her entitlements does not matter as far as this case is concerned.
As earlier said, by virtue of Section 62 of the National Insurance Commission Act 1997, the Appellants has a statutory duty under law to obey the directives given to them by the Minister.
I am of the firm belief that all the 1st Respondent needs to show for the grant of the order of mandamus is that the Minister has given a directive to the Appellants to reinstate her and the Appellants have refused and neglected to obey the said directives. Payment of entitlement to the 1st Respondent does not excuse the Appellants from obeying the said directives.
Issue two is hereby resolved against the Appellants.

ISSUE THREE
Whether the lower Court was right when it awarded the sum of #300,000.00 (Three Hundred Thousand Naira) in favour of the 1st Respondent against the Appellants as cost of the suit without any pleadings or proof from the 1st Respondent to support same.

Needless to belabor this issue, the trial Court awarded the sum of #300,000 as cost of the suit in favour of the 1st Respondent. First and foremost, it was never pleaded by the 1st Respondent. I have read through the Originating motion and it was not stated anywhere as a relief sought.
In the case of NNAJI VS. LUKA MADAKI & ANOR (2012) LPELR-20097(CA), it was held per Ogunbiyi thus:
“The law is trite that a Court cannot award to any party what he did not ask for. In other words, the Court is not a Father Christmas by awarding indiscriminately. See Stowe v. Stowe (2001) 5 NWLR (Pt.706) 395 at 404. The determinant guiding factor by the Court is dependent upon issues which are before it and properly so made out by the parties themselves. See the case of Ayologu v. Agfu (2002) 3 NWLR (Pt.753) 168 at 184.” (P 20, Paras E – G)
In the Supreme Court case of EMAVWORHE ETAJATA & ORS VS. PETER IGBINI OLOGBO & ANOR (2007) LPELR-1171(SC)

it was held per Muhammad, JSC that:
“It is wrong for a Court to make an order which no party has asked for. The Court is not a Father Christmas as it does not award what a party has not claimed. Reliefs granted by a Court must not be inconsistent with a party’s case and claim. Yusuf v. Oyetunde (1998) 10 SCNJ; Union Bank of Nigeria Ltd. v. Ogboh (1995) 2 SCNJ 1; Olaopa v. Obafemi Awolowo University, Ile-Ife (1997) 6 SCNJ 46; Ugochukwu v. C.C.B. Nigeria Ltd. (1996) 7 SCNJ 22; Edebiri v. Edebiri (1997) 4 SCNJ 177.”
From the above cited cases, it is my decision that the learned trial judge was wrong in awarding the sum of N300,000 as cost of litigation in favour of the 1st Respondent when it was not pleaded and sought for by the 1st Respondent.

Secondly, a claim for cost of the action is in the nature of special damages and therefore, can only be granted upon strict proof by the Appellant since a claim for special damages is never granted as a matter of course. It must be specifically pleaded, itemized with its particulars and strictly proved by credible and cogent evidence at the trial as it denotes pecuniary losses

that have crystallized in terms of cash and value at the time of the commencement of the action. See OHADUGHA VS. GARBA (2000) 14 NWLR (PT. 687) 226 @ P. 244. SEE ALSO NIGERIAN DYNAMIC LTD VS. AGUOCHA (2002) FWLR (PT. 104) 630 @ P. 658.
The Apex Court held in the case of OBASUYI VS. BUSINESS VENTURES LTD (2000) LPELR-2155(SC) that:
“It is elementary that special damages are such that the law will not presume to flow or infer from the nature of the act or breach of duty complained of by the Plaintiff as a matter of course. They are exceptional in their character and connote specific items of loss which the Plaintiff alleges are the result of the Defendant’s act of breach of duty complained of.” Per Iguh, JSC (P.32, Paras.C – E)

Enough said, I hereby set aside the cost of N300,000 awarded in favour of 1st Respondent by the trial Court.

Issue three is resolved in favour of the Appellants.

The appeal therefore only succeeds in part. The judgment of the trial Court is affirmed except on the issue of the award of cost of litigation. No further order as to cost.

ABDU ABOKI, J.C.A.: I had the privilege of reading before now, a draft of the lead judgment just delivered by my Learned Brother MOHAMMED BABA IDRIS, JCA. His Lordship has prudently and diligently dealt with the issues that arose for determination.

I agree with his reasoning and conclusion that the appeal is meritorious, and ought to be allowed, except for the issue of the award of cost, which I also find to have been awarded without recourse to the elementary principle of law that it is wrong for a Court to make an order which no party has asked for. These findings and conclusions flowed from the evidence adduced at the trial.

It is on account of this that I find this appeal to be meritorious in part and ought also to be allowed in part. I accordingly allow same in part.

I abide by the Orders contained in the lead judgment.

STEPHEN JONAH ADAH J.C.A.: I read in draft the judgment just delivered in Court by my learned brother, Mohammed Baba Idris, JCA.

I agree with the reasoning and the conclusion therein that this appeal succeeds in part. I also do allow the appeal in part by setting aside the cost of N300,000, and affirming the rest judgment of the trial Court as ordered in the

lead judgment.

Appearances:

Adebayo Esq For Appellant(s)

Oshomegie Esq with E. Ezeifedikwa Esq for the 1st Respondent For Respondent(s)