NIGERIAN SPANNISH ENG. CO. LTD. v. EZENDUKA(2001)

NIGERIAN SPANNISH ENG. CO. LTD. v. EZENDUKA

2001)LCN/0982(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of May, 2001

CA/K/19/99

JUSTICES

ISA AYO SALAMI Justice of The Court of Appeal of Nigeria

RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

Between

NIGERIAN SPANNISH ENG. CO. LTD. Appellant(s)

AND

EZENDUKA Respondent(s)

RATIO

WHETHER OR NOT A JUDGEMENT OBTAINED BY FRAUD CAN BE IMPEACHED BY MEANS OF AN ACTION WHICH CAN BE BROUGHT WITHOUT LEAVE OF COURT

The practice is clear and it is to the effect that where a judgment is final and on the merit but the party against whom it is given, contends that it was obtained by fraud the proper procedure to follow to upset the judgment is to file a fresh action to set it aside and not by going on appeal. In the unreported judgment of this court in appeal No. CA/K/117/2000 delivered on 12th day of April, 2001, Salami, J.C.A. stated as follows:
“There are plethora of decided cases both of this court and the Supreme Court in support of his submission. In the case of Olufunmise v. Falana (1990) 3 NWLR (Pt. 136) 1, 10, Obaseki, J.S.C. stated thus:
“A judgment, which has been obtained by fraud either on the court or of one of the parties, can be impeached by means of an action which can be brought without leave and is analoguous to the former chancery suit to set aside a decree obtained by fraud”, and in Anatogu v. Iweka (1995) 8 NWLR (Pt.415) 547, the Supreme Court relying on its former decision in Olufunmise v. Falana, (Supra) said that the proper manner of assailing a judgment alleged to have been obtained by fraud is a fresh action per Ogwuegbu JSC at 590 of the report:
“The claim is a new and independent action. Action of this nature does not invite the High Court to rehear the case upon the old material. Fresh facts are brought forward and the action is regarded as new …” PER SALAMI, J.C.A.

THE POSITION OF THE LAW ON JUDGEMENT BROUGHT UNDER AN UNDEFENDED LIST

I am strengthened in this view by the decision of the Supreme Court per Nnaemeka-Agu, J.S.C. in the case of U.T.C v. Pamotei (1989)2 NWLR (Pt. 103) 224 where it stated in respect of a judgment in an action brought under undefended list thus:
“Such a judgment is one on the merits which can be set aside only on appeal or by another action say in the case of fraud.” (Italics mine)
And this court in the case of Alhaji Abubakar Dan Azumi v. Pan African Bank Ltd (1996) 8 NWLR (Pt.467) 462, 477 stated per Mahmud Mohammed, J.C.A. thus:
“I am of the firm view that any judgment entered under rule 4 of Order 23 of the rules after hearing the case as an undefended suit, the judgment entered thereby is not a judgment in default but a judgment on merits which cannot be set aside on an application by motion. Such a judgment can only be set aside on filing a fresh action challenging it on ground such as fraud …”
See also Adegoke Motors Ltd. v. Dr. Adesanya & Another (1989) 3 NWLR (Pt. 109) 250, 266 and Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172, where the Supreme Court held that the appeal is rehearing or continuation of the original suit, rather than beginning of a fresh action, hence parties are confined to their case as pleaded in the court below and the matter is determined on the old material placed before the trial court. PER SALAMI, J.C.A.

WHETHER OR NOT A COURT HAS JURISDICTION TO SET ASIDE ITS OWN JUDGEMENT ON THE GROUND THAT IT WAS OBTAINED BY FRAUD

Where it is ordained by law that a court has jurisdiction to entertain an action to set aside its own earlier judgment on the ground that the judgment was obtained by fraud either on the court or on the plaintiff the issues of abuse of court process or res judicata could not have possibly arisen and determined in the same suit. It is, therefore, unnecessary for me to examine the submissions of both learned counsel on what constitutes res judicata and abuse of court process.
Since bringing a fresh action to set aside a judgment in a previous suit has basis in law, it cannot in any case, constitute an abuse of court process or res judicata. The respondent could not complain that he was wronged by an act of the law, that is, by an act the doing of which the law authorised or permitted: Keen v. Denny (1894) 3 Ch D 169, 175. PER SALAMI, J.C.A.

SALAMI, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice of Kano State of Nigeria, in the Kano Judicial Division and sitting in Kano, the respondent herein brought an action against the appellant in an earlier suit No. K/700/96, as follows:
“(1) an order on the defendant to produce copies of its audited accounts showing its profits from September, 1986 to date.
(2) an order on the defendant to produce its books of account, invoices, delivery notes etc showing the value of purchases made by the plaintiff from the defendant from September 1986 to date.
(3) 25% of the profits duly shown as per paragraph 15.1 above.
(4) 7% as rebate of the plaintiff’s purchases duly adjudged from 1986 to date.
(5) Refund of sum advanced to the defendant …N600,000.00
(6) Refund of sum paid for goods but not
Supplied                  N1,050,000.00
sub-total                 N1,650,000.00
(7) General damages         N10,000,000.00
TOTAL                            N11,650,00.00
(8) Interest and costs at court’s rate.”

Pleadings were filed and exchanged. Evidence were adduced by both parties and counsel addressed the court. In a reserved and considered judgment, the learned trial Judge acceded to the respondent’s claim after rejecting the appellant’s defence.

The appellant did not appeal that decision ordering it to refund N1,020,000.00 to the respondent on 21st December, 1998, rather three days after this judgment, viz on 24th December, 1998, it took out a fresh or a new writ of summons in suit No. K/811/98. It is claiming inter alia for the following reliefs:
“1. Declaration that the judgment dated 21/12/98 and delivered on 21/12/98 awarding the sum of N1,020,000 to the defendant was vitiated by fraud and false misrepresentation and therefore void and of no effect.
(2) An order setting aside the said judgment of Hon. Justice Abdullahi Haliru delivered on 21/12/98 in suit No. K/ 700/96 as it relates to the award of the sum of N1,020,000 to the defendant herein for being vitiated by fraud and/or misrepresentation or non disclosure.
3. An order referring the defendant to the police for investigation and possible prosecution for fraud.
4. Injunction restraining the defendant whether by himself, servants, agents and otherwise, howsoever from enforcing the said judgment.” (Italics mine)

The appellant also filed a motion on notice asking for an interlocutory injunction restraining the respondent from enforcing the judgment delivered in suit No. K/700/96, pending the determination of the substantive suit, namely K/811/98. The motion was supported by affidavit and two further affidavits and a counter affidavit in opposition. There was no application before the court challenging the competence of the suit and therefore, the jurisdiction of the trial court to entertain the suit was not impugned.

In the counter affidavit deposed to, it was however averred that the application and the suit No. K/811/98 were surreptitious “attempt to reopen hearing and to relitigate issues which had been laid to rest in suit K/700/96; the matters were therefore res judicata and the new suit an abuse of court process”.

At the hearing of the application, respondent’s counsel, in his address in reply to the submissions of the learned counsel for appellant, on the motion for injunction, reiterated the issues of abuse of court process and res judicata averred to in the affidavit against the motion on notice. The learned trial Judge in his ruling, on the appellant’s application for interlocutory application, dismissed the application for interlocutory injunction and struck out the appellant’s suit on the ground that the court lacks jurisdiction to entertain the same. It was the view of the learned trial Judge that the appellant should have appealed against the judgment and then led evidence of the fraud during the hearing of the appeal.

The appellant was unhappy with the turn of events and had appealed to this court on 6 original and 3 additional grounds of appeal. The two parties, in accordance with the provisions of Order 6 of the Court of Appeal Rules, Cap. 62 of the Laws of the Federation of Nigeria 1990, filed and exchanged briefs of argument which were settled at amended appellant’s and respondent’s briefs of argument in which issues were formulated. The issues framed in the appellant’s brief of argument read as follows:
“(1) Was the learned trial Judge right in determining the issue of the lower court’s jurisdiction to entertain the appellant’s suit in his ruling on the appellant’s motion for interlocutory injunction without hearing the appellant on the issue of jurisdiction? This issue is covered by Grounds 1 and 6.
(2) Was the learned trial Judge right in his holding that the trial court lacks jurisdiction to entertain the appellant’s suit on the ground that the suit is caught by the doctrine of res judicata and therefore constitutes abuse of the process of the court? This issue is covered by Grounds 7,8 and 9.
(3) Whether or not the learned trial Judge was right in making pronouncements on the substantive suit at the time he was delivering his ruling on the appellant’s motion for interlocutory injunction? This issue is covered by Grounds 2 and 3.
(4) Whether the learned trial Judge was right in refusing the appellant’s motion for interlocutory injunction? This issue is covered by grounds 4 and 5.
The respondent did not formulate his own set of issues rather he merely adopted appellant’s formulations subject, of courses to objection he took against some of the grounds of appeal.

In this connection, learned Counsel stated the mandatory requirements of Order 3 rule 2(2)(3) and (4) of the Court of Appeal Rules as follows:
“(i) allegation of misdirection or error of law;
(ii) quotation of the passage where the misdirection or error is alleged to have occurred;
(iii) the nature of the misdirection or error must be specified; and
(iv) full and substantial particulars of the alleged error or misdirection must be given.”
He cited the cases Silencer & Exhaust Pipes Co. v. Farah (1998) 12 NWLR (Pt.579) 624, 634 – 635 and 638, Babba v. Tafashiya (1999) 5 NWLR (Pt.603) 468,.474. He submitted that a ground of appeal and issue thereon must relate to the ratio decidendi of the decision appealed against. An issue which does not arise properly from the decision appealed against is incompetent and should be struck out: U.B.N. Plc v. C.F.A.O. (Nig.) Ltd. (1997) NWLR (Pt. 527) 118, 130. Learned Counsel submitted further that grounds of appeal should not be vague, argumentative or narrative: Honika Sawmill Nig. Ltd. v. Mary Hoff (1994) 2 NWLR (Pt.326) 252, 267; Okudo v. I.G.P. (1998) 1 NWLR (Pt.533) 335, 340; and Military Governor Ondo State v. Ajayi (1993) 3 NWLR (Pt. 540) 27, 44. Learned Counsel then read grounds 3 ,4 and 5 of the grounds of appeal and respectfully submitted that all the grounds do not meet the requirements of law for valid grounds of appeal for these reasons-
“(i) They are vague and did not quote or refer to any portions in the ruling where the alleged error in law occurred – Babba Tafashiya (supra).
(ii) All the particulars amount to legal arguments and conclusions or narrative Honika Sawmill (Nig.) Ltd. v. Mary Hoff ( supra) Globe Fishing Industry Ltd. v. Coker (1990) 7 NWLR (Pt.162) 265.
(iii) The said grounds of appeal do not relate to the ratio decidendi of the ruling appealed against – UBN Plc v. CFAO Nig. Ltd. (supra). We submit that the ratio of the ruling of 22/04/99 is that, having given a final decision on the issue in K/700/96 the matter was res-judicata, and the trial Judge had no jurisdiction to conduct a hearing on it; the trial Judge therefore refused the application and struck out the substantive suit in K/811/98.”
He contended that grounds 4 and 5 betray a misconception of the said ratio when they alleged that the motion was struck out without being considered. On the contrary, the application, according to counsel, was considered and held to fail. He referred to page 8 of the record of the appeal and read as follows:-
“In the light of the foregoing, I am satisfied that the application ought to fail. Its failure will affect the substantive case …”
There is no substance in this objection. The grounds of appeal are neither vague, narrative nor argumentative. The contention of the learned Counsel for respondent that they should state the principles and materials before the trial Court which it failed to consider would have turned them to be narrative or verbose. A notice of appeal shall set forth concisely the grounds of appeal. The three grounds of appeal read as follows:
“3. The learned trial Judge erred in law in prejudging the substantive action at the interlocutory state.
PARTICULARS
(i) A court of law should not in an interlocutory application make a pronouncement amounting to a prejudgment on issues which are to be tried [2002] 1 NWLR N. S. Eng. Co. Ltd. v. Ezenduka (Salami, J.CA.) 487 in the substantive suit.
(ii) The pronouncements made by the judge at the interlocutory stage in this case constitute a pre-judgment of the substantive action.
4. The learned trial Judge erred in law in failing to consider the principles for the granting of the application for injunction.
PARTICULARS
(i) The learned trial Judge’s failure to consider the principles for the grant of the application for injunction led to the refusal of the application.
5. The learned trial Judge erred in law in failing to grant the application for injunction.
PARTICULARS
(i) The learned trial Judge had enough materials upon which to grant the application.
The learned trial Judge’s failure to consider the materials before the court led the striking out of the motion for injunction.”
The purpose of a ground of appeal is, to give notice of the appellant’s complaint or complaints against the judgment appealed. It should be concise and precise and should not be argumentative nor narrative or verbose, but states clearly what it is complaining about with particulars and quote extract of the judgment where necessary.

It is not always, in a ground of appeal, that a quotation of portion of the judgment required. Indeed, it is not a mandatory requirement of the relevant rules of this court that where a ground of appeal complains of misdirection and error in law quotation of extract of the judgment is a sine qua non .Order 3 rule 2(2)(3) and (4) of the Court of Appeal Rules Cap 62 provides thus-
“(2) If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court too of its own motion or on application by the respondent.”

The present three grounds of appeal, already set out in this judgment, notwithstanding the repetition of the ground of appeal in the particulars, had set forth clearly and concisely the ground it intends to rely upon and those grounds are neither ambiguous nor general in terms. They have all given notice to both the court and the respondent the nature of the complaint and in the result the issue or issues arising from the appeal. All the grounds of appeal respectfully are within the contemplation of Order 3 rule 2(2), (3) and (4) of the Court of Appeal Rules Cap 62 and are therefore, not liable to being struck out: Aderounmu & Another v. Olowu (2000) 2 SCNJ 130, (2000) 4 NWLR (Pt. 652) 253 cited with approval in Hambe & Another v. Hueze & Others (200l) 2 SC26, (2001) 4 NWLR (Pt.703) 372,385 – 6. Some of what he considers to be ratio decidendi qualify more as his answer to the issues arising therefrom.

Learned Counsel took objection to the formulation of grounds 7, 8 and 9 and contended that the first paragraph of the particulars supplied, in each of these grounds of appeal, is a mere narrative of the nature of the appellant’s suit in the trial Court. The rest of the particulars are all legal arguments and conclusion which were respectfully set out as examples:
“1. Para iii, of the particulars to ground 7:
“The process or otherwise of such an action will be determined at the trial and not in limine.
(2) Para ii of the particulars to ground 8:
“A suit seeking to set aside an earlier judgment for having been obtained by fraud is not a rehearing of the earlier suit.”
3. Para ii of the particulars to ground 9:
“The party against whom judgment has been entered is permitted in law to institute a fresh action to have the judgment set aside on the ground that the judgment was fraudulently obtained by the plaintiff in the earlier suit”.
He then argued that the above and the other particulars merely set out legal opinion and should be struck out for being conclusions and arguments. Learned counsel cited the cases of Honika Sawmill v. Mary Hoff ( supra) and Okudo v. IGP (supra).

I have examined the grounds of appeal and I’m unable to agree with learned counsel for respondent that the grounds and the particulars thereof are argumentative, conclusion and legal opinions. The argument of the learned Counsel for respondent might have been largely influenced by the provisions of the Evidence Act prohibiting averments which are legal conclusions, argument or opinion. I look in vain for a provision in Order 3 rule 2(2)(3) and (4) of the Court of Appeal Rules, Cap. 62, dealing with the contents of a ground of appeal, forbidding a ground of appeal from being a conclusion or legal opinion. Grounds of appeal 7, 8 and 9 were framed to attack the judgment on the basis that an action seeking to set aside judgment alleged to be obtained by fraud on the court or a party need not be by way of rehearing namely appeal but by a fresh action specially pleading and strictly proving fraud. These grounds simply give notice to the respondent that the nature of the ground, which is of error in law the particulars have to be of law and not otherwise. The grounds have amply demonstrated to the respondent the grouse of the appellant against the judgment. Once a ground succeeds in satisfying that condition unless it is illegal it has to be sustained. The grounds are neither verbose, narrative nor ambiguous. They are neither vague nor in general terms and in so far as they clearly set forth the appellants complaint against the judgment the grounds have to be accepted as the tendency today is towards substance and not mere shadow or forms.
Having disposed of the objection against some of the grounds of appeal, I turn from preliminary matters to the consideration of the substantive appeal. In this regard, the main issue for determination is the competence of the trial Court to entertain the appellant’s suit praying for setting aside of its earlier judgment on the ground that it was obtained by fraud on the court or the other party. In this connection, learned counsel submitted that the refusal of the learned trial Judge to entertain the appellant’s new suit was untenable. He further submitted respectfully that the learned trial Judge betrays misapprehension of the nature of the appellant’s suit.

There is merit in these submissions. The learned trial Judge held that he lacks jurisdiction to entertain the appellant’s suit on the grounds that it offends against the principles of res judicata and abuse of process of court. The appellant’s suit struck out by the lower court was for setting aside of its judgment in suit No. K/700/96 on the ground it was obtained by fraud or misrepresentation. The decision of the learned trial Judge to strike it out on the grounds of res judicata and abuse of court process, with the greatest respect to him, betrays profound misconception of the procedure and practice. The misapprehension of the nature of the suit into which he was probably goaded by learned counsel for respondent is equally reflected in the respondent’s brief particularly argument in issue 2. The question of fraud is a very serious crime and in civil matters, it must be specially pleaded with particulars and proved strictly: Fabunmi v. Agbe (1985) 1 NWLR (Pt.2) 299 SC.; (1985) 1 SC 229, 319 hence the inherent power given to court to hear it as a fresh suit and not as a rehearing on appeal. In the substantive new suit, there will be opportunity to plead the particulars of the fraud specifically and adduce evidence there on strictly. An appeal being a rehearing of the earlier suit the appellate court is confined to the material before the trial Court. The learned Counsel for the appellant took appropriate step when he filed a fresh action to set aside the judgment in the earlier suit. The practice is clear and it is to the effect that where a judgment is final and on the merit but the party against whom it is given, contends that it was obtained by fraud the proper procedure to follow to upset the judgment is to file a fresh action to set it aside and not by going on appeal. In the unreported judgment of this court in appeal No. CA/K/117/2000 delivered on 12th day of April, 2001, Salami, J.C.A. stated as follows:
“There are plethora of decided cases both of this court and the Supreme Court in support of his submission. In the case of Olufunmise v. Falana (1990) 3 NWLR (Pt. 136) 1, 10, Obaseki, J.S.C. stated thus:
“A judgment, which has been obtained by fraud either on the court or of one of the parties, can be impeached by means of an action which can be brought without leave and is analoguous to the former chancery suit to set aside a decree obtained by fraud”, and in Anatogu v. Iweka (1995) 8 NWLR (Pt.415) 547, the Supreme Court relying on its former decision in Olufunmise v. Falana, (Supra) said that the proper manner of assailing a judgment alleged to have been obtained by fraud is a fresh action per Ogwuegbu JSC at 590 of the report:
“The claim is a new and independent action. Action of this nature does not invite the High Court to rehear the case upon the old material. Fresh facts are brought forward and the action is regarded as new …”

This principle, I agree with the learned counsel for respondent, is as applicable to a judgment obtained in any action under undefended list as it is to any other judgment of the High Court, party cannot seek rehearing of his case on appeal if his ground for rehearing is that the judgment was obtained by fraud be the judgment obtained under undefended or general cause list. His remedy lies in bringing a fresh action raising the allegation of fraud. He may appeal if the issue or issues to be contested on appeal are that judgment was wrongly entered in favour of the respondent when he filed a notice of intention to defend with the affidavit in support of the notice “disclosing a defence on the merit” or that the plaintiffs claim is not made out in the affidavit in support of the writ or challenging the competence of the suit. I am strengthened in this view by the decision of the Supreme Court per Nnaemeka-Agu, J.S.C. in the case of U.T.C v. Pamotei (1989)2 NWLR (Pt. 103) 224 where it stated in respect of a judgment in an action brought under undefended list thus:
“Such a judgment is one on the merits which can be set aside only on appeal or by another action say in the case of fraud.” (Italics mine)
And this court in the case of Alhaji Abubakar Dan Azumi v. Pan African Bank Ltd (1996) 8 NWLR (Pt.467) 462, 477 stated per Mahmud Mohammed, J.C.A. thus:
“I am of the firm view that any judgment entered under rule 4 of Order 23 of the rules after hearing the case as an undefended suit, the judgment entered thereby is not a judgment in default but a judgment on merits which cannot be set aside on an application by motion. Such a judgment can only be set aside on filing a fresh action challenging it on ground such as fraud …”
See also Adegoke Motors Ltd. v. Dr. Adesanya & Another (1989) 3 NWLR (Pt. 109) 250, 266 and Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172, where the Supreme Court held that the appeal is rehearing or continuation of the original suit, rather than beginning of a fresh action, hence parties are confined to their case as pleaded in the court below and the matter is determined on the old material placed before the trial court.

In this connection, Supreme Court, in the case of Anatogu v. Iweka (supra) laid down the procedure to be followed when a party claims that a judgment had been obtained against him by fraud. At pages 573 and 574 of the report, Uwais, J.S.C. (as he then was) stated the practice and procedure as follows:
“I think the dicta of James, L.J. in  Flower v. Lloyd (No. 1) (1877) 6 Ch D 297 at p.301 describes succinctly the course to be followed in a review case when he said of a review for fraud:
“I agree with what has been said by the Master of the Rolls that in the case of a decree (or judgment as we call it now) being obtained by fraud there always was power, and there still is power, in the courts of law in this country to give adequate relief. But that must be done by a proceeding putting in issue that fraud, and that fraud only.
You cannot go to your adversary and say, ‘You obtained the judgment by fraud, and I will have a rehearing of the whole case’ until that fraud is established. The thing must be tried as a distinct and positive issue; ‘You’ the defendant or ‘you’ the plaintiff obtained that judgment or decree in your favour by fraud; you bribed the witnesses, you bribed my counsel, you committed some fraud of kind, and I ask to have the judgment set aside, on the ground of fraud.’ That would be tried like anything else by evidence properly taken directed to that issue, and wholly free from and unembarrassed by any of the matters originally tried.’
From all the foregoing, the learned trial Judge was right in his ruling that no proper foundation had been laid to enable him admit the document sought to be put in evidence. However, he was wrong in holding that his refusal to admit the documents was based on the nature of the case being a review case. Also, for the reason aforementioned, the Court of Appeal was wrong to have held that the documents were admissible at the stage they were tendered.”
A party complaining that a judgment obtained was tainted with fraud cannot proceed on appeal since all appeals by virtue of Order 3 rule 2(1) of the Court of Appeal Rules, Cap 62 of the Laws of the Federation of Nigeria, 1990 are required to be heard by way of rehearing. Such a party can only seek for the judgment to be set aside by bringing another action and putting the question of fraud directly in issue and leading  evidence in support thereof. It must be the only issue in contention in that suit.”
See also the cases lweka II v. Anatogu (1991) 4 NWLR (Pt.185) 305; Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275; Shahimi v. Akinola (1993) 5 NWLR (Pt. 294) 434; ACB Plc v. Losada Nig Ltd. (1995) 7 NWLR (Pt. 405) 26 and Edem v. Akamkpa L.G. (2000) 4 NWLR (Pt.651) 70, 81 cited in the appellant’s brief of argument. The Supreme Court in ACB Plc v. Losada (Nig.) Ltd. (supra) at page 45 Kutigi, J.S.C. said ..
“It is indisputable that a court of law is competent to set  aside its own judgment in a number of circumstances. And the present circumstance, when the judgment obtained was a nullity, is one of such circumstances.”

The postulation of the learned trial Judge that further evidence could be taken by virtue of the provisions of Order 1 rule 20(3) of the Court of Appeal Rules Cap 62 in this court, on appeal, is another instance of the misapprehension of the law by the learned trial Judge.
The matter in respect of which a stay of execution was sought is a new action which he has declined jurisdiction to hear nevertheless he counsels appellant to proceed on appeal to the Court of Appeal where he could call evidence. It is not appeal that is required, in the circumstance of this case, where further evidence could be taken rather the new substantive suit should he heard and adjudicated upon.
If the learned trial Judge is satisfied that he was misled, he has power to give judgment to the plaintiff by setting aside his own earlier decision otherwise he refuses the appellant’s claim in his new suit and dismisses the same.

The submission of the learned counsel for respondent, in the respondent’s brief that the issue in the two actions are the same is preposterous. The subject matter of the first suit, viz K/700/96 was for a claim or refund of the sum of N1,020,000.00 for money had and received whereas the subject of the present appeal namely suit No. K/811/98 is to set aside that judgment for being fraudulently obtained.
Surely, the issue of fraud and money had and received cannot be said to be one and the same thing. It follows that even if the doctrine of res judicata were relevant all the four elements to sustain the principle are not present: Agbasi v. Obi (1998) 2 NWLR (Pt. 536) 1, 10 – 11 cited in the respondent’s brief.
The appellant’s issue 2 is answered in the negative and the grounds of appeal related thereto viz grounds 7,8 and 9 succeeds and are allowed. The appeal succeeds and it is allowed. The decision of the trial court is hereby set aside and Suit No. K/811/98 is remitted to the trial court to be assigned to another Judge by Chief Judge of Kano State.
The learned Counsel for appellant canvassed in his issue 4 correctness or otherwise of the refusal by the learned trial Judge of the appellant’s application for an interlocutory injunction. The learned trial Judge, in refusing the application, was influenced more by the competence of the suit rather than consideration of the principles for granting interlocutory injunction. Since this court is a court exercising appellate jurisdiction and not that of first instance it will be improper to proceed to consider the application as if it were a court of first instance.

The appeal having succeeded and the suit remitted to the trial Court for hearing it will be necessary to preserve the res. It will serve no useful purpose if the judgment in Suit No. K/700/96 is executed before the action in suit K/811/98 is disposed of. In the circumstance, I am respectfully of the view that this is a proper case to exercise our power under section 16 of the Court of Appeal Act, Cap. 75 of the Laws of the Federation of Nigeria, 1990. I therefore stay execution of the judgment obtained in Suit K/700/96, pending the determination of the Suit K/811/98 in view of our order remitting the latter suit to the trial Court for hearing with the direction that the stay shall not be removed until Suit No. K/811/98 has been determined. See the Supreme Court decision in T. O. Oyegbola v. Esso West Africa Inc. (1966) 1 All NLR 170, 171 and Okorodudu & Another v. Okoromadu & Another (1977) 3 Sc. 21, 32.

Appeal succeeds and it is allowed. Suit No. K/811198 is remitted to the court below for hearing by a Judge of Kano State High Court of Justice other than M.H. Abdullahi, J. There is order as to costs which is assessed at N4,000.00 in favour of the appellant.

R. D. MUHAMMAD, J .C.A.: I have read the judgment just delivered by my learned brother, Salami, J.C.A., and I am entirely in agreement with the reasoning contained therein and the conclusion arrived thereat.

For the same reasoning and conclusion which adopt as mine, I also allow the appeal and set aside the decision of the trial Court. I abide by all the consequential orders including the order as to costs proposed in the lead judgment of my learned brother, Salami, J.C.A.

OMAGE, J.C.A.: In a motion on notice dated 24/12/98, the appellant as the applicant in the Kano High Court in Suit No. K/811/98, sought from the court an order to restrain the defendants, and its agent now respondent from enforcing the judgment it received from the court, Coram A. Haliru J. in suit No. K/700/96, until the determination of the suit in number K/811/98. In that suit No. K/811/98, the appellant/applicant, plaintiff in the said suit sought a declaration that the judgment dated 21/12/98, in suit No. K/700/96, be set aside for alleged misrepresentation of fact and fraud, and for other reliefs of prosecution by the Police against the defendant, judgment creditor, now respondent to the appeal before this court. After receiving arguments on the application, the court Coram Haliru Abubakar J. of Kano State ruled as follows:-
“I am clear in my mind that the proper form for the plaintiff/applicant is the court of appeal… I am satisfied that this application ought to fail.”
The application was refused, and the court further ruled as follows:
“As I stated earlier this in a proper case to invoke section 32 High Court Law and strike out the whole writ.”

It is against the said ruling of the court which not only refused the application, and also struck out the writ of summons in Suit No. K/811/98, that the appellant has appealed. He filed five grounds of appeal and amended same to include 4 more after substituting grounds 2 &3 with other grounds. He formulated four issues from the new grounds, they are:
(1) Was the learned trial Judge right in determining the issue of the lower courts jurisdiction to entertain the appellants suit in his ruling in the appellants motion interlocutory injunction without hearing the appellant on the issue of jurisdiction covered by grounds 1 & 6?
(2) Was the learned trial Judge right in holding that the trial court lacks jurisdiction to entertain the appellant’s suit on the ground that the suit is caught by the doctrine of res judicata and therefore constitutes abuse of the process of the court “covered by grounds 7, 8 & 9” ?
(3) Whether or not the learned trial Judge was right in making pronouncements, on the substantive suit at the time he was delivering his ruling on the appellants motion for interlocutory injunction “covered by grounds 2 & 3.?”
(4) Whether the learned trial Judge was right in refusing the appellants motion for interlocutory injunction “covered by grounds 4 & 5.?”
The above issues are contained in the “amended appellants brief of arguments” filed in this court on 20/6/00 and it is undated except that it shows the year 2000. The appellant also submits that a determination of the subsequent issues 2-4, will not be necessary once issue one is resolved. Infact, looking at the subsequent issues 2-4., they would appear not to have arisen from the proceedings.

The respondents brief is dated 4th August, 2000 and filed on 4/8/00. In the brief, the respondent recorded what he called “preliminary matters” and described as incompetent the grounds of appeal of the appellant in the amended notice of appeal. The respondent wrote as follows:
“The respondent by way of preliminary objection shall contend at the hearing of the appeal that grounds 3,4,5, 7,8 and 9, of the notice of appeal are incompetent and should be struck out. The said grounds of appeal violate  Order 3, rule 2(2) 3 &4 of the Court of Appeal rules and or are not related to the ratio decidendi of the case and are therefore irrelevant.”
The respondent proceeded in the brief to submit arguments on the objection to the grounds stated above against the appellants ground of appeal. The respondent there after in the brief submitted arguments on the issues formulated by the appellant in the alternative to the objection raised in the grounds of appeal in the respondents brief.
I have seen nowhere therein where the respondent complied with the provisions of Order 3 rule 15(3) of the Court of Appeal Rules. Order 15 rule 3 subscribes that an objection by the respondent may not be entertained if the respondent failed to comply with the provisions of Order 15 rule 1 which provides as follows:
“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing setting out the grounds of objection and shall file such notice together with seven copies thereof with the registrar within the same time.” I have not seen any such notice filed in this appeal. I must and do comply with the provision of the rules of this court which disallow the entertainment of a preliminary  objection which is made outside the rules. The preliminary objection in the respondent brief is hereby struck out.
I proceed now to consider the submissions of the appellant on the 4 issues filed by him, and where convenient intend to treat to together with it the alternative submission of the respondent on the  issues.
Subject to the preliminary objection raised by the respondent which I have already dealt with above, the respondent advanced argument on what he described as issues one and two, they read viz:
“Fair hearing on the issue of jurisdiction.” issue two “On the  correctness of declining jurisdiction for res judicata and abuse of court process.” The two issues are said by the respondent to be formulated from grounds one and six and grounds 7, 8 and 9 of the amended grounds of appeal in the amended notice of appeal granted by order of court on 20/6/00. The so called two issues formulated by  the respondents are not presented in cursive and elegant manner, though they are distilled from the said amended grounds of appeal. The two issues are couched as though an inexperienced carpenter or tailor was working on unprocessed wood or tailor on a calic for an urchin. Issue one of the appellant does indeed relate to complaint of lack of jurisdiction only to the extent of saying that the court below should have been given the opportunity of making its ruling on the matter of jurisdiction. Before such a ruling could have been made by the court below, the court should indeed have heard the submission of the plaintiff/applicant for appellant. The appellant submitted that because the appellant now was not heard in the court below, before the said court struck out the substantive suit while hearing the motion to stay the execution of judgment in Suit No. K/700/96, there has occurred a denial of a right of fair hearing to the appellant. The appellant submitted further that any proceedings in which a party is denied fair hearing is a nullity and he urged the court to set aside the order striking the Suit No. K/8 11/98, and allow the prayer sought in the interlocutory application. The respondent did not deny the issue raised by the appellant that the court below struck out the appellants writ of summons in the court below. The respondent did not also deny that the court below did not enable the appellant to address the court on the issue of jurisdiction before suit No.K/811/98 was struck out, respondent averred in his brief that it was infact the appellant who first raised the issue of jurisdiction, before the -counsel to the defendant/respondent in the court below responded to the issue of jurisdiction. Respondent submitted that the appellant was given an opportunity to address the court below on the issue of jurisdiction. Once therefore a party is allowed an opportunity to be heard in court, he cannot he heard to complain of lack of fair hearing he said. He cited Abiola v. Federal Republic of Nigeria (1995) 3 NWLR (Pt. 382) 203.

On the issue of striking out of the appellant’s writ of summons in suit No. K/811/98, which was not pending before his Lordship Abubakar J. in the court in Kano State, when the learned court was considering a motion to stay the enforcement or execution of judgment in Suit No. K/700/96.

I find myself in agreement with the submission by the appellant. It is settled law, that a party involved in a litigation in court is entitled to be informed in advance of the day when his matter will be determined in court and being present in court is entitled to be heard on the matter he has in court before the issue is determined.

In the instant appeal, the facts show that the issue before the court below was whether or not to stay the enforcement of the order of judgment in Suit No. K/811/96. The application was filed in the court below because, the appellant alleged that the judgment in Suit No. K/700/96 was obtained by fraudulent means. It shows in the printed record that the prayers sought by interlocutory application is in Suit No. K/811/98, it seems to me that the prayers may be determined one way or the other without determining the validity of the Suit No. K/811/98.

In my view, the appellant was denied a right to contest the validity of the writ in Suit No. K/811/98 not slated for hearing at the time it was struck out by the court. The equitable rule of audi alteram partem (hear the other side) has grown to a statutory obligation, which has culminated in our provisions on fundamental human right, also now enshrined in our 1999 Constitution of Nigeria. The records show that the appellant whose writ was to be struck out was not given an opportunity to address the court before his writ of summons was struck out. See on the issue of denial of a right of fair hearing. See Eco-Consult Ltd. v. Pancho Villa Ltd. (2000) 3 NWLR (Pt.647) 141 at p. 148-149. It is an aphorism to say that the issue of lack of jurisdiction of a court may be raised at any time, and in any manner at the hearing of the motion see Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR at 395 (11); Ejike v. Ifeadi (1990) 4 NWLR (Pt .142) 89 (111); Tukur v. Gov., Gongola State (1989) 4 NWLR (Pt. 117) 560-561 but it is often omitted in that sweeping aphorism above, that the issue of jurisdiction can only be raised when the matter on which objection of jurisdiction is made is before the court. See Alhaji Latifa Ajuwon & Ors. v. Madam Alimotu Adeoti (1990) 2 NWLR (Pt. 132) 291 at 283.

I am in agreement with the submission of the appellant that the order of the court below which struck out the writ in Suit No. K/811/98 is made without jurisdiction and it is a nullity. The said suit is remitted to the court below for hearing. I hereby resolve issue one against the respondent in favour of the appellant. The appeal succeeds. I abide by the consequential order as to costs of N4,000.00 in favour of the appellant.

Appeal allowed.

Appearances

Olaseni Okunloye, Esq.For Appellant

AND

Nelson Uzuegbu, Esq.For Respondent