NIGERIAN BOTTLING COMPANY PLC v. MR. ABUBAKAR SADEEQ SULEIMAN (2019)

NIGERIAN BOTTLING COMPANY PLC v. MR. ABUBAKAR SADEEQ SULEIMAN

(2019)LCN/13703(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of July, 2019

CA/C/412/2014

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

NIGERIAN BOTTLING COMPANY PLC Appellant(s)

AND

MR. ABUBAKAR SADEEQ SULEIMAN Respondent(s)

RATIO

THE JURISDICTION OF THE COURT OF APPEAL TO ENTERTAIN APPEALS

The jurisdiction of the Court of Appeal to entertain appeals is statutory and guided by the Court of Appeal Rules. By virtue of Section 243 (1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by the Constitution shall be exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. Order 7 rule 2(1) of the Court of Appeal Rules 2016 prescribes that every appeal shall be initiated through a notice of appeal. Thus, a notice of appeal is the most important fundamental step in the building block in the appeal pyramid and any defect in it would render the appeal incompetent. See ANADI V. OKOLI (1977) 7SC 57, ADELEKAN V. ECULINE (NO I) (2006) 12 NWLR (pt 993) 33, OKOLO V. U.B.N. LTD (2004) 3 NWLR (pt 859 87 andIKWEKI V. EBELE (2005) 11 NWLR (pt 936) 397.
It was recently held in UMEZINNE V. F.R.N (2019) 3 NWLR (pt 1660) 532 at 547 ? 548 that a notice of appeal is an originating process as such any defect therein goes to the root of the appeal and robs an appellate Court of jurisdiction to hear the appeal. PER SHUAIBU, J.C.A.

THE PRINCIPLE OF ESTOPPEL BY CONDUCT

The principle of estoppel by conduct is a common law principle based on equity. The principle is that where one party has; by his words or conduct made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted upon accordingly, then once the other party had taken him at his word and acted on, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. Thus, he must accept their legal relations as modified by himself even though it is not supported in point of law by any consideration but only by his word or conduct. In other words, the party who made the representation would be precluded from contesting its truth. See UDE V. OSUJI (1998) 13 NWLR (pt 580)1 UNILORIN V. OBAYAN(2018) 13 NWLR (pt 1635) 72 and D.M.V. (NIG) LTD V. N.P.A (2019)1 NWLR (pt 1652) 163 at 183 ? 184.PER SHUAIBU, J.C.A.

WHETHER OR NOT A COURT CAN MAKE A CASE SUO MOTU

However, a Court of trial should keep itself within the bounds of what is available and not go into speculation akin to a different case being determined than what the parties had submitted to. See SODIPO V. LEMMINKAINEN OY (NO 1) (1985) 2 NWLR (pt 8) 547 and AJAYI V. TOTAL (NIG) PLC (2013) 15 NWLR (pt 1378) 423 at 452. Therefore, the Court is not competent to suo motu make a case for either or both of the parties and then proceed to give judgment in the case so formulated contrary to the case of the parties before it. See STATE V. OLADIMEJI (Supra). PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): The appellant herein was the defendant to the claim at the lower Court wherein the claimant now respondent at paragraph 26 of the statement of claim claimed against the said defendant as follows: –
?26 WHEREOF the claimant claims against the Defendant as follows: –
(1) The sum of Three Million, Six Hundred and Eleven Thousand, Eight Hundred and Eighty Naira (N3,611,880.00) only as special damages.
PARTICULARS OF SPECIAL DAMAGES
A. The sum of Two Million, Five Hundred and Forty-Four Thousand Naira (N2,544,000.00) only being and representing the appropriate basic salary of the claimant for the period of forty-Eight (48) months, that the claimant worked as Special Events Officer of the Defendant Company beginning from December, 2006 till November, 2010.
B. The sum of Nine Hundred and One Thousand Naira (N901,000.00) only being and representing ex-gratia payment for the period of Seventeen (17) months as per the terms of the mutual Agreement reached between the defendant company and the staff union of the defendant company.
?C. The sum of One

Hundred and Fifty-Two Thousand, Eight Hundred and Eighty Naira (N152,880.00) only being and representing the value of one Hundred and Fifty-Five (155) cases of 350 RGB (Liquid content only) owed to the claimant by the Defendant company as per paragraphs 20 and 27 above.
D. The sum of Fourteen Thousand Naira (14,000.00) only being and representing the balance of transport allowance to the 2010 sales and marketing convention held at Enugu State on February 13, 2010.
(2) The sum of Ten Million Naira (10,000,000.00)?

After the exchange of pleadings, issues having been joined, the matter went to trial. Witnesses testified and documents were admitted in evidence. Written addresses were filed and adopted. The learned trial judge of the lower Court delivered judgment in favour of the respondent.

?Dissatisfied with the judgment of the lower Court, the appellant filed this appeal on 14/7/2014 and the notice of appeal contains two grounds of appeal. The appellant filed her brief of argument on 31/10/2014. The respondent filed his brief of argument on 8/3/2018 incorporating the preliminary objection. Appellant?s reply brief was filed

on 12/3/2018. On 27/5/2019, the appeal came up for hearing whereat, learned counsel on both sides adopted their respective brief of argument.
The notice of preliminary objection was filed on 7/11/2017 and same is predicated on the following grounds.
1. That the Notice of Appeal was filed at the wrong judicial Division of the Court of Appeal and therefore incompetent.
2. That being a suit instituted at the National Industrial Court of Nigeria, Port Harcourt Judicial Division, any appeal flowing from the matter ought to be initiated and heard at the Court of Appeal Port Harcourt Judicial Division and not the Court of appeal, Calabar Judicial Division.
3. That the Court of Appeal Calabar Judicial Division lacks the jurisdiction to hear and determine the said appeal.

Learned counsel for the respondent Cosimir P. Oguguo, Esq. formulated two issues for the determination of the Notice of Preliminary Objection as follows: –
1. Whether in the light of the mandatory provisions of Order 6 Rule 10 and Order 7 Rule 2 of the Court of Appeal. Rules 2016, the Appellant?s Notice of Appeal dated and filed on the 14th day of July, 2014 in

this Appeal is competent before this Honourable Court?
2. Whether based on the appellant?s Notice of Appeal dated and filed on the 14th day of July, 2014 in this appeal, this Honourable Court (i.e. Calabar Judicial Division of the Court of Appeal) has the jurisdiction to hear and determine the instant appeal?

Proffering argument on the first issue above, learned counsel for the respondent contends that filing of a notice of appeal is a condition precedent to the hearing of an appeal and where same is found to be defective or incompetent, the Court of Appeal has the power to strike it out. He referred to Order 7 Rule 2 (1) of the Court of Appeal Rules 2011 in submitting that all appeals shall be filed in the registry of the Court below, otherwise such appeal is incompetent.

He further submitted that the suit giving rise to this appeal having been filed at the Port Harcourt Judicial division of the National Industrial Court wherein judgment was entered in favour of the respondent, the appropriate registry where the appellant should file her notice of appeal is the Port Harcourt Judicial Division of the National Industrial Court and not the

Calabar Judicial Division of that Court. It was thus submitted that where there is non-compliance with a statute that is shown to be mandatory, the suit will be a nullity however well conduced. He referred to MADUKOLU V. NKEMDILIM (1964) ALL NLR (pt 2) 589 and EIMSKIP LTD V. EXQUISITE IND. (NIG) LTD (2003) 1 SCNJ 317.

On the second issue, learned counsel for the respondent submitted that neither the Court nor the parties can foist or confer jurisdiction on this Court in respect of this appeal. And that since the appellant?s notice of appeal is defective and incompetent, the inevitable implication is that this Court lacks jurisdiction to hear and determine the appeal.

Responding to the preliminary objection, learned counsel for the appellant relied on Order 21 Rule 5 (1) 9 (2) of the Rules of this Court to contend that the objection is belated, same having not been filed within reasonable time. In further contention, learned counsel submitted that having responded to the appellant?s brief of argument and also taken further steps, the objection is caught up by principle of laches and acquiescence.

In the respondent?s reply on points of law to appellant?s reply to the preliminary objection, learned counsel for the respondent submitted that the issue of jurisdiction can be raised at any stage of the proceedings even for the first time on appeal before the Supreme Court relying on the authority of USMAN DAN FODIO UNIVERSITY V. KRAUS THOMPSON ORGANIZATION LTD (2001) 15 NWLR.

Upon careful perusal of the two issues formulated for determining the preliminary objection, same can conveniently be condensed into one that is, whether the extant notice of appeal is valid and this Court has the requisite jurisdiction to hear and determine the appeal.

practice and procedure of the Court of Appeal. Order 7 rule 2(1) of the Court of Appeal Rules 2016 prescribes that every appeal shall be initiated through a notice of appeal. Thus, a notice of appeal is the most important fundamental step in the building block in the appeal pyramid and any defect in it would render the appeal incompetent. See ANADI V. OKOLI (1977) 7SC 57, ADELEKAN V. ECULINE (NO I) (2006) 12 NWLR (pt 993) 33, OKOLO V. U.B.N. LTD (2004) 3 NWLR (pt 859 87 andIKWEKI V. EBELE (2005) 11 NWLR (pt 936) 397.
It was recently held in UMEZINNE V. F.R.N (2019) 3 NWLR (pt 1660) 532 at 547 ? 548 that a notice of appeal is an originating process as such any defect therein goes to the root of the appeal and robs an appellate Court of jurisdiction to hear the appeal. Thus, appeal can be likened to a virus which invariably taints the entire appeal and thereby rendering it incompetent.
The question here is, what is the virus that infected the extant notice of appeal which invariably corrodes or taints the entire appeal? The grouse of the 1st respondent is that the notice ought not

have been filed in the Calabar Division of the lower Court since the suit was filed and trial conducted in Port Harcourt. Thus, the objection is strictly on the venue of hearing the appeal.
The Provision of Order 7 Rule 2 (1) provides that the notice of appeal shall be filed in the registry of the Court below and the Court below presupposes the Court whose decision is the subject of the appeal. A careful perusal of the record of appeal reveals that the complaint/suit though filed in the Port Harcourt judicial division of the lower Court, the proceedings of the Court from 8/7/2013 to the 10/7/2014 when the judgment was delivered, everything took place in the Calabar division of the Court. In other words, the lower Court sat both in Port Harcourt and Calabar for the hearing and determination of the matter which is now on appeal. See pages 162 ? 179 of the record of appeal.
The respondent?s main contention is that the appellant is engaged on what he described as forum shopping which is seriously decried by the superior Courts of the land. See DALHATU V. TURAKI (2003) 15 NWLR (pt 843) 310 and PALI V. ABDU (2019) 5

NWLR (pt 1665) 320. Regrettably, the record proved otherwise. The Court is bound by the record as much as the parties themselves. And also by virtue of Section 168 (1) of the Evidence Act 2011 there is a presumption of regularity in favour of the record of proceedings of the lower Court. In effect, the objection of the respondent is not on any foundational process that triggers off an appeal as such there is no any virus that is capable of tainting the appeal.

In the circumstance, the preliminary objection is bereft of any substance and it is hereby overruled.

Having overruled the preliminary objections, I will now proceed to determine the substantive appeal.

Learned counsel for the appellant, Chigozie A. Anujulu Esq. formulated two issues for the determination of the appeal as follows: –
1. Whether an estoppel by conduct can in law operate to overrule or circumvent positive rules of law or corporate policy of a company.
2. Whether it was competent for the lower Court to suo motu raise the issue of estoppel which was never specifically pleaded by the claimant in this matter.

?On his part, learned counsel for the respondent

Cosimir P. Oguguo formulated a lone issue thus:-
Whether in the circumstances of this case, the learned trial judge was right to have invoked and applied the doctrine of estoppel by conduct?

Learned appellant?s counsel in arguing issue No.1 referred to the averments in paragraph 4 of the Defendant?s statement of defence vis–vis paragraph 1 of the claimant?s reply to contend that having agreed that the Defendant has an established corporate policy on procedure to follow whenever any of its employee is to be considered for promotion or change of job title, an estoppel by conduct cannot operate to override or circumvent that corporate policy of the company. He thus submitted that no fact need to be proved in any civil proceedings which the parties to the proceedings or their agents have admitted relying on Section 123 of the Evidence Act and the case of USMAN DAN FODIO UNIVERSITY V. KRAUS ORGANIZATION (Supra).

On the issue No.2, learned counsel contended that the issue of estoppel by conduct was never raised by the claimant in the matter and the Court cannot ex proprio motu hold that any party is estopped

without the issue being pleaded and parties being afforded an opportunity to be heard on it. He submits that the Court is not competent to suo motu make a case for either or both of the parties and then proceed to give judgment in the case so formulated contrary to the case of the parties before it. He referred to DEDEKE V. WILLIAMS (1944) 10 WACA 164 and STATE V. OLADIMEJI (2003) 14 NWLR (pt 839) 57 ?m 65.

Proffering argument on his lone issue, learned counsel for the respondent concedes that for a party to avail himself of the plea of estoppel, he should have pleaded it expressly or specifically. The said general rule according to the learned counsel admits some exceptions and one of such is where the constituent element of estoppel by conduct are apparent or established in the suit under consideration. He referred to ALAKIJA V. ABDULAI (1998) 5 SCNJ 1 and OBA ALAO V. V.C. UNIVERSITY OF ILORIN (2008)1 NWLR (pt 1069) 421.
?
In further contention, learned counsel argued that the facts of the respondent?s appointment as Special Events Officer of the appellant was apparent in both

Exhibits C4 ? C9 as well as paragraphs 5 and 6 of the claimant?s statement on oath. Also when cross-examined, DW1 has admitted that the claimant was appointed special events officer by the company and that he served in that capacity from 2005 ? 2010 but without an upward review of his salary, benefits and or entitlements. He thus submitted that a person cannot ratify the beneficial part of another?s unauthorized act and repudiate the onerous part. And the learned trial judge was right to have invoked and applied the doctrine of estoppel by conduct to the effect that the appellant herein is estopped from disclaiming her acts and conduct.

I have carefully considered the argument of counsel on both sides in relation to the above formulations. The two set of issues are interrelated and interwoven. However, the lone issue formulated by the respondent is apt and quite apposite for the just determination of the appeal. I shall therefore determine this appeal in the light of the respondent?s lone issue. For the sake of clarity, the said lone issue is reproduced hereunder as follows: –
Whether in the circumstances of this case

the learned trial judge was right to have invoked and applied the doctrine of estoppel by conduct?

Before proceeding to consider the appeal, it is pertinent to albeit briefly state the facts of the case as discerned from the record of appeal. On 2/9/2004 the respondent was employed by the appellant as sales assistant which appointment was confirmed on 2/3/2005. On 7/11/2005, the respondent was converted to the position of driver/salesman as evidenced in exhibit 1, 2, and 3. On 8/12/2006 vide an email memo to Ayirioitse by Arike of the sales service office, Port Harcourt exhibit 4, he was informed that henceforth the respondent would be responsible for ?Special event activations and ice distribution?. However, on November 5, 2010, the respondent was issued with a letter titled ?Re-organization? and informed that his services was no longer required and his terminal benefits were stated in the letter, which was paid to him as stated.

?Respondent?s complaint was that for over five years he performed the functions of special events officer which is a senior staff position in the appellant?s company; he was not paid

salary commensurate to that position and thus his terminal benefit was calculated with his former position as junior staff in the appellant. It was premised on the above that the respondent commenced an action at the lower Court for which it held that by describing respondent severally as special event officer and also allowing him to act in that position for about five years, the appellant has made him to believe that he was already promoted to the post of special event officer.

The appellant attacks the judgment of the lower Court on the grounds that estoppel by conduct cannot in law operate to override its corporate policy of promotion and change of cadre. And that the issue of estoppel by conduct was neither raised nor canvassed by the parties in their respective pleadings.
?
The principle of estoppel by conduct is a common law principle based on equity. The principle is that where one party has; by his words or conduct made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted upon accordingly, then once the other party had taken him at his word and acted on, the one who gave the promise

or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. Thus, he must accept their legal relations as modified by himself even though it is not supported in point of law by any consideration but only by his word or conduct. In other words, the party who made the representation would be precluded from contesting its truth. See UDE V. OSUJI (1998) 13 NWLR (pt 580)1 UNILORIN V. OBAYAN(2018) 13 NWLR (pt 1635) 72 and D.M.V. (NIG) LTD V. N.P.A (2019)1 NWLR (pt 1652) 163 at 183 ? 184.

it. See STATE V. OLADIMEJI (Supra).

In paragraphs 5 ? 10 of the statement of claim at pages 7 ? 8 of the record of appeal, respondent succinctly put his case thus: –
7. The claimant also served in an acting capacity as the Defendant?s Sales Services Manager between 2005/2006 without any corresponding/commensurate upward salary review, financial entitlement and or monetary compensation.
8. As far back as sometime in 2008 the claimant started agitating, albeit unsuccessfully, for a corresponding/commensurate upward salary review. The claimant hereby pleads and shall at the trail of this suit rely on the letters (via E-mail) dated October 17, 2008 and September 3, 2009 written by the claimant to the defendant on the issue of his agitation for salary review.
9. Sometimes in October, 2010 the defendant?s Mrs. Arike Okunowo having found merit in the claimant?s case lent her voice, albeit unsuccessfully, to the claimant?s agitation for a salary review. This fact is evident in Mrs. Arike Okunowo?s letters (via E-mail) dated October 14, 2010.
?10. On or about November 5, 2010 the

claimant was however retrenched by the defendant but was paid terminal benefits commensurate with the position of salesman/driver instead of the position of special events officer which the claimant occupied until he was retrenched. The claimant hereby pleads and shall at the trail of this suit rely on the defendant?s letter to the claimant dated November 5, 2010 captioned Re-Organization together with a breakdown of the claimant?s purported final entitlement.

The appellant vehemently denied the above claim in paragraph 4 ? 7 of the statement of defence at pages 63 ? 64 of the record of appeal as follows:
4. Paragraphs 5, 6 and 7 are false. The defendant shall put the claimant to the strictest proof of the averments therein contained. The defendant avers that there is no formal documentation confirming the claimant as a special event officer or sales services manager or at all. The defendant further aver that before an employee is promoted to a new job title/cadre, such an employee would usually undergo a promotion interview which interview would be conducted by a well constituted panel made up of other functional heads.

The outcome of the said interview would be forwarded to the Head Office and a promotion/success letter is subsequently addressed to such an employee from the Head Office confirming the promotion of such an employee.
5. The defendant however avers that the position of a special event officer is akin to that of a driver/salesman. While the driver/salesman is assigned to routes for products delivery to dealers and customers, the special event officer delivers fridge, ice-blocks, chairs and tables at an occasion/event in which payments have been made to the company. The responsibility of a special event officer is usually assigned to a driver/salesman such as the claimant. Such assignment/responsibility does not change their salary scale and/or job cadre. A special event officer the same with a driver/salesman is junior staff. The grading of employees and their positions within the appropriate scales are entirely at the discretion of the defendant.
?6. Paragraphs 8 and 9 are false. The claimant by his letters respectively dated the 17th day of October, 2008 and 3rd September, 2009 sought the assistance of Anike Okunowo his immediate boss at the time

to assist him to change his ?job title? and ?description?. Pursuant to the claimant?s said letter, the said Mrs. Anike Okunowo on the 17th day of October, 2008 mailed the then Human Resources Manager Mrs. Amaka Bifom to confirm if there was a provision for the position of a Supervisor or Special event officer in the approved commercial manning. The defendant jettisoned the claimant?s said letters asking for increase in his salary as there was absolutely no basis for the claimant to make such request/agitation.
7. Paragraphs 10 and 11 are admitted only to the extent that the defendant by a letter dated the 5th day of November, 2010 terminated the claimant?s appointment with the defendant. All other averments therein contained are accordingly denied. The defendant further avers that subsequent to the termination of the claimant?s appointment, the claimant was paid all his entitlements/benefits which sum amounted to N423,258.80 (Four Hundred and Twenty-Three thousand, Two Hundred and Fifty-Eight Naira Eighty Kobo). The defendant further avers that there was no error in the computation of the

claimant?s entitlement. The defendant never admitted any error where none existed.

Finally, in paragraphs A, B, C & D of the reply to statement of defence, respondent averred: –
A. The position of a special event officer is not akin to the position of a Driver/Salesman in the defendant company as alleged or at all.
The two positions are distinct and different.
The former is superior or higher than the later. Whereas the former is a Senior/Managerial staff position regulated by the defendant?s senior staff Handbook, the later is a junior/
Non-managerial staff position regulated by the defendant?s junior staff handbook.
B. The defendant?s ?job description form? for the Position of special event officer which form was issued to the claimant on or about the 8th day of April, 2013 as well as the defendant?s ?intermediate/junior staff promotion form? issued to the claimant by the defendant on or about 14th day of April, 2013 both clearly show that the position of a special event officer is distinct and different from the position of a driver/salesman in many areas such as

job title, job description, job purpose, duties and responsibilities, educational qualifications, job experience, salary grade, key performance indicators, competencies, etc.
C. The Special Events Officer, unlike a Driver/Salesman, is not a driver of the defendant?s sales truck through designated or assigned routes for purposes of delivery and sales of the defendant?s products to dealers or customers of the defendant as alleged or at all. Rather, the special events officer deputizes the sales services manager (SM) who is the functional head of the sales services office. The sales services office is a sub-section of the commercial Department headed by the commercial manager. Whereas the special event officer reports to the sales services manager, the sales services manager in turn reports to the commercial manager.
?D. It is pertinent to note that the defendant?s ?job description form? for the position of special events officer was firs issued by the defendant to her employers occupying the said position on the 10th day of July, 2006. This fact is clearly so stated on the face of the said form. However, the

defendant did not issue the claimant with the said ?job description form? until on or about the 8th day of April, 2010 that is a period of about four (4) years after the said form came into existence in the defendant?s company. This is so notwithstanding the fact that the claimant has since on or about the 18th day of December, 2006 occupied the position of special events officer having been so appointed by the defendant. The said form which was signed or counter-signed by Mrs. Arike Okunowo clearly shows that the position or special event officer exists in the defendant?s company distinct or different from and high or superior to the position of a driver/salesman.

?What can therefore be gleaned from the position of the appellant is that the respondent was neither confirmed nor made to believed that he is being promoted to the position of special events officer. The policy of the appellant is that before an employee is promoted to a new job title/cadre, such an employee must undergo a promotion interview which interview would be conducted by a well constituted panel. The respondent neither contest nor present a contrary position

from what basically is the corporate policy of the appellant?s company. Even though the position of special events officer exists in the appellant?s company since 2006, the job description form for that position was not issued to him until on or about 8th April 2010, barely six months to his disengagement.

The learned trial judge was therefore wrong to have invoked and or applied the doctrine of estoppel by conduct on the strength of the corporate policy of the appellant on promotion and without the respondent being made to believe that he was promoted to the position of special event officer. It is only when one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, such party would be prevented from approbating and reprobating at the same time. The facts and circumstances of this case is clearly distinguishable with that of UNILORIN V. OBAYAN (supra) in the sense that the appellant has remained consistent all through as regards to its corporate policy on promotion to a higher grade.
?
It is also glaringly clear that

throughout the proceedings before the lower Court the issue of estoppel by conduct was neither raised nor canvassed by any of the parties. Thus, the issue was raised suo motu by the trial Court. I have restated the already settled position that when an issue is not placed before a Court, such Court has no business to deal with it as decisions of a Court of law must not be founded on any ground in respect of which neither received argument from or on behalf of the parties before it nor even raised by or for the parties or either of them. See SAUDE V. ABDULAHI (1989) 4 NWLR (pt 116) 389.
The foregoing notwithstanding, Courts of law have power to raise suo motu relevant issue or issues which are not before the Court for determination of the case. In exercising this power, however, the Court must adhere strictly to the principles of natural justice and in particular, to the audi alteram partem rule. In TINUBU V. I.M.B. SECURITIES (2001) 9 ? 10 SC 49 at 58 ? 59 it was held that when Court raises point suo motu, the parties must be given an opportunity to be heard on the point, particularly the party that may suffer

prejudice as a result of the point raised suo muto. Accordingly on no account should Court raise a point suo motu no matter how clear it may be and proceed to resolve it one way or the other without giving parties an opportunity to be heard. And if it does so, it will be in breach of the parties? right to fair hearing.
In the instant case, the lower Court erred in raising the issue of estoppel by conduct suo motu without giving parties therein, an opportunity to be heard on the point so raised thereby breaches their rights to fair hearing.

In conclusion, the appeal succeeds and it is hereby allowed. The decision of the lower Court is accordingly set aside. Parties shall bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Muhammed Lawal Shuaibu, JCA. I agree with the lead judgment that the preliminary objection by the Respondent “is bereft of merit” and accordingly overruled.

I also agree with my learned brother that the trial Court was in error by raising the issue of estoppel by conduct suo motu without giving the

parties the opportunity to address it on same before relying on the said issue in its judgment.
I also say that the appeal is meritorious and it is allowed.
I abide with the consequential order and the order as to costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in advance, the erudite leading judgment delivered by my learned brother: Muhammed Lawal Shuaibu, JCA. I endorse, in toto, the reasoning and conclusion in it. I, too, allow the appeal. I set aside the decision of the lower Court which mothered the appeal. I abide by the consequential orders decreed in the leading judgment.

Appearances:

C. Anujulu, Esq. with him, O.O. Omini)For Appellant(s)

J.C. Amadi, Esq.For Respondent(s)

Appearances

C. Anujulu, Esq. with him, O.O. Omini)For Appellant

AND

J.C. Amadi, Esq.For Respondent