OCTS EDUCATIONAL SERVICES LTD V. PADSON INDUSTRIES LTD. & ANOR
(2012)LCN/5276(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of March, 2012
CA/IL/31/2009
RATIO
WORDS AND PHRASES: DEFINITION OF PROLIX, NARRATIVE AND ARGUMENTATIVE
”Prolix” means: ”Tediously wordy, long-winded, verbose”. ”Narrative” means: Description Of events, the act or art of narrating”. ”Argumentative” means: ”Excessively fond of arguing or raising objections”. For the meanings of these words, see The New Webster’s Dictionary of the English Language, International Edition, pages 800, 665 and 49 respectively. PER OBANDE OGBUINYA, J.C.A
WORDS AND PHRASES: MEANING OF VAGUE
The adjective, ”vague”, means: ”Not clearly grasped in the mind, not precise in expression, not firmly determined, not clearly perceived, not clearly formulating or expressing ideas”, see The New Webster’s Dictionary of the English Language, International Edition, page 1085. PER OBANDE OGBUINYA, J.C.A
JUDGMENT: IMPORT OF CONSENT JUDGMENT
The import of consent judgment is vividly captured in the case of Woluchem v. Wokoma (1974)3 SC 153 or (1974) 1 SC 115 at 128 (REPRINT) wherein Ibekwe, JSC, stated:
”The rule is that action may be settled by consent during trial, usually such settlement is a compromise and in order to have a binding effect on the parties, it is imperative that it should have the blessing of the court. Settlement between parties may be described as a contract whereby new rights are created between them in substitution for, and in consideration of, the abandonment of the claim or claims pending before the court. When the court moves and takes action as agreed upon by the parties, it becomes a consent judgment.”
See. also, R.A.S.C. Ltd v. Akib (2006) 13 NWLR (pt.997) 333; D.T.T. Ent (Nig) CO. Ltd v. Busari (supra); S.P.M. Ltd v. Adetunji (2009) 13 NWLR (pt.1159) 647.
It follows that a consent judgment, which is also agreed judgment, is a judgment based on the agreement of parties to an action and given a stamp of legality and efficacy by the court. In practice, the parties negotiate settlement out of the bowel of the court, reduce their terms of agreement into writing, sign and file same in court and request the court to make it judgment for the parties. Hence, consent or agreed judgment is predicated on the consensus ad idem of pasties. It is binding on the parties much the same way as judgment obtained after full-scale trial. It is only appealable with the leave of the court that handed it down to the parties. PER OBANDE OGBUINYA, J.C.A
JUDGMENT: REQUIREMENTS FOR SETTING ASIDE CONSENT JUDGMENT
In that case, Iguh JSC, stated:
”Where, however, purported consent judgment is vitiated by fraud, mistake, misconception or by any other vice which would afford a ground for setting aside the compromise agreement on which the order was based, no true consent judgment binding on the parties would have emerged. The result, in such a case is that the so called consent judgment can be set aside but by a fresh action. See Talabi v. Adeseye (1972) 8 – 9 SC 20.”
In the subsequent case of Afegbai v. A.G., Edo state (2001) SCNJ 418 at 456/(2001)14 NWLR (Pt.733) 425, Karibi-Whyte, JSC, opined:
”It is clear from the facts of the appeal before us that the consent judgment entered into by the parties is binding on the parties… When a consent judgment has been ordered it remains binding on the parties until it is set aside by a fresh action, if it can be established to have been obtained by fraude – see Talabi v. Adeseye (1972) 8 – 9 SC 20…”
It is clear from these authorities that a party, who is subsequently irked by a consent judgment, has the options to challenge it, if it is vitiated by fraud, mistake or any vice, by instituting a fresh action to ventilate his grievances. These modes are in addition in to the party’s accepted right of appeal against a consent judgment with the leave or permission of the court sought and obtained. PER OBANDE OGBUINYA, J.C.A
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria
Between
OCTS EDUCATIONAL SERVICES LTD Appellant(s)
AND
1. PADSON INDUSTRIES LTD.
2. MR. ADEDEJI Respondent(s)
OBANDE OGBUINYA, J.C.A (Delivering the Leading Judgment): This appeal is an offshoot of the judgment of the Kwara State High Court, coram Hon. Justice M. A. Folayan, delivered on 19/02/2008 wherein the respondents’ preliminary objection was upheld.
Flowing from the processes filed, the facts of that case, which led to this appeal, are far from being complicated. The appellant, as a claimant, sued the respondents, as defendants, in suit No.KWS/13/2007 claiming certain reliefs. The parties therein settled the matter out of court. The end product of that settlement was a 5 – paragraph terms of settlement, signed by the parties and their respective learned counsel and filed in court on 28/06/2007, which the lower court pronounced and made consent judgment for the parties on 02/07/2007.
Subsequently, precisely on 08/11/2007, the appellant, as a claimant, instituted another action against the respondents, as defendants in Suit No.KWS/131/2007 in the lower court. In that case, the appellant sought for, inter alia, an order to set aside the consent judgment in the earlier suit No.KWS/131/2007 in the lower court. The appellant followed up the action with two applications, motion ex-parte and motion on notice, in which it prayed for an order of injunction restraining the respondents from disposing its attached chattels.
In a swift reaction to that suit, the respondents filed a notice of preliminary objection wherein they prayed the lower court to strike out the appellant’s suit on grounds that:
”1. The claims sought by the claimant are substantially the same as in the Suit No.KWS/13/2007 already decided by the court.
2. The parties in the previous suit KWS/131/2007 are the same in the present suit.
3. The court lacks jurisdiction to entertain the suit having decided and given judgment thereupon in the previous suit.
4. The suit discloses no cause of action or no reasonable cause of action.
5. The suit is incompetent for not complying with the procedure for commencement of action
6. The court cannot set aside the consent judgment properly and duly entered and delivered.”
As required by law, the notice of preliminary objection was supported by a 21 paragraph affidavit with 12 annexures, exhibits A-L, attached thereto. Also, a written address was filed in support of it. On its part, the appellant filed a 16 paragraph counter-affidavit and a written address in stiff opposition to the preliminary objection.
The preliminary objection was duly heard and argued on 10/01/2008. Thereafter, the lower court delivered a considered ruling, on 19/02/2008, in which it ruled: ”There is merit in the preliminary objection raised by the defendants/objectors. The suit No.KWS/131/2007 as constituted is incompetent, the claimant is stopped from re-litigating the issues already decided in the suit No. KWS/13/07 and in whichever way the court looks at it, either as a judgment obtained by fraud, or the suit is seen as new suit based on earlier facts, or both considered together, the claimant is estopped and his remedy lies in appealing against the consent judgment.
Finally, I hold that this court lacks jurisdiction to entertain suit No. KWS/131/07 as it is constituted. The case is therefore struck out”
The appellant was aggrieved by that decision and it filed a notice of appeal hosting five grounds with their concomitant particulars therein. In keeping with the law, parties filed and exchanged their briefs of argument in the appeal. The appeal was heard on 20/02/2012. Prior to the adoption of briefs of argument by the respective parties, learned counsel for the respondents, Dr. J.O. Olatoke, drew the court’s notice to their notice of preliminary objection, filed on 20/04/2011, which they intended to rely on, with the arguments thereon encapsulated in their brief.
Thereafter, on that same 20/02/2012, the parties adopted their respective briefs of argument. Hence, learned counsel for the appellant, Chief P. A. O. Olorunnisola, SAN, adopted the appellant’s brief of argument and its reply brief of argument, filed on 20/04/09 and 15/02/2012 respectively, as representing his arguments in support of the appeal. He prayed the court to allow the appeal. Similarly, learned counsel for the respondents, Dr. J.O. Olatoke, adopted the respondents’ joint brief of argument, filed on 20/04/2011, but deemed filed on 02/02/2012, as being his arguments against the appeal. He drew the court’s attention to the list of additional authorities which the respondents filed on 20/02/2012. He intimated the court that case numbers 1 and 2, on the list, related to his arguments in paragraphs 4.01 – 4.08 of the respondents’ brief while case number 3 thereon touched on his submissions in paragraph 7.08 of the respondents’ brief. He referred to section 66 (3) and 70 of the Companies and Allied Matters Act in respect of his arguments in paragraph 7.08 of the respondents, brief of argument. He urged the court to uphold the respondents’ preliminary objection or, in the alternative, to dismiss the appeal.
The law mandates me to settle the preliminary objection first, particularly, as it seeks to terminate the appeal in limine on account of lack of jurisdiction. The essence of this is to determine the fortune of the substantive appeal, see Adelekan -vs- Elu-Line NV (2006) 12 NWLR (pt. 993) 33; Uwazurike v. A.G., Fed. (2007) 8 NWLR (pt. 1035) 1; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Odedo v. INEC (2008) 17 NWLR (Pt.1117) 554; B.A.S.F. (Nig) Ltd v. Faith Enterprises Ltd (2010) 4 NWLR (pt. 1183) 104; SPDCN Ltd Amadi (2011) 14 NWLR (Pt. 1266) 157; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; F.B.N. Plc v. T.S.A. Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247. In consonance with the law, I will deal with the preliminary objection first.
– The preliminary objection.
As already noted, the respondents raised a preliminary objection to the competence of the appellant’s appeal because the notice of appeal was void and grounds 1, 2, 5 and 7 were incompetent and urged the court to strike out and/or dismiss same. The preliminary objection was predicated on the following grounds to wit:
”(a) The Notice of Appeal is void and incompetent.
(b) Grounds 1, 2, 3, 4, 5, 6, and 7 are incompetent.
(c) Issues for determination touching them are consequently incompetent.
(d) The entire appeal is incompetent by reason of the far-reaching effect of the incompetent (sic) of the notice and relevant grounds, and issues raised thereon”
Arguments on the preliminary objection Learned counsel for the respondents submitted that the appellant’s notice of appeal, contained on pages 194-196 of the record, the only notice of appeal in the transmitted record of appeal, was not dated and it bore no signature of the maker and so incompetent, worthless and void; He cited the cases of Omega Bank (Nig) Plc v. O.B.C. Ltd. (2005) 8 NWLR (pt.607) 362 at 371; A. G. Abia state v. Agbaranya (1999) 6 NWLR (pt.607) 362 at 372; Tsalibawa vs. Habiba (1991) 2 NWLR (pt.174) 461 at 475-477 in support. He further submitted that the appellant’s notice of appeal was undated, hence void and no effect, citing the cases of Ogbahon vs. Reg. Trustees, CCC (2002) 1 NWLR (pt. 749); Amizu vs. Nzeribe (1989) 4 NWLR (pt. 118) 755 at 770; Hamid Ojo vs. Primate E, O. Adejobi & Ors. (1978) 3 SC 65 at 74-74 to support his submission ”He insisted that since the notice of appeal was the foundation of the appellant’s case, the court would not ignore a situation where the foundation of the claim was based on a worthless, unsigned and undated document to assume jurisdiction on the matter as same had robbed it of its jurisdiction and the only assistance it the court, could give the appellants was to strike out the appeal in limine. He referred to the cases of Drexel Enery v. Trans International Bank (2008) 18 NWLR (Pt.1119) 388 at 418 to support his submission. He urged the court to strike out the appeal.
Learned counsel reproduced verbatim the provision of Order 6 rules 1 and 2 of the Court of Appeal Rules, 2007 and noted that it specifically mandated an appellant to state the exact nature of the relief being sought at the Court of Appeal. He, then, contended that the appellant failed to comply with that provision by its failure to state the reliefs being sought before the court, hence it, the court, lacked the jurisdiction to entertain the appeal. He placed reliance on the cases of Fayemi vs. Oni (2010) 17 NWLR (Pt.1222) 326 at 404-405; Uzoukwu vs. Ezeonu (1991) 6 NWLR (pt. 200) 708 at 784-785, He added that in the latter case, the court dismissed the appellant’s seven reliefs which were not specific, precise or concise let alone the appellant’s notice of appeal which had no relief. He noted that the proper order to make was to strike out and/or dismiss the appeal on the ground which bordered on the jurisdiction of the court.
Learned counsel reproduced in extenso the provision of Order 6 rules 2 and 3 of the Court of Appeal Rules, 2007 on the parameters for validity of grounds of appeal- that they should not be argumentative or narrative and any that was vague or general, except the one to the effect that the judgment was against the weight of evidence, might be struck out by the court.
He noted that the authorities were settled that a ground of appeal which did not conform with those parameters were incompetent and liable to be struck out. He relied on the cases of Uwazurike v. A – G; Fed (2007) All FWLR (pt. 367) 834 at 843; Ikweki vs. Ebele (2005 All FWLR (Pt.257) 140 at 1432; Saraki vs. Kotoye (1992) 11 – 12 SCNJ 2 at 42.
He quoted ground 2 of the notice of appeal and contended that there was no where in the record where
the lower court carme to such decision let one being erred. He persisted that the ground did not emanate from the ruling of the lower court as it merely considered the issue of estoppel as one of the reasons to dismiss the appellant’s application and not the facts of both case as being contended by the appellant. He tagged the ground incompetent and urged that same be struck-out. He referred to the case of Iloabachie v. Iloabachie (2005) 5 NWLR (pt. 626) 194 at 203. He further contended that since the ground (2) was defective its particulars were irrelevant since something could not be put on nothing and be expected to stand. He urged the court to strike out the ground with its particulars, relying on the cases of Akpeme vs. Barhays Bank of Nigeria (1977) 1 SC 30 at 38; Lawason vs. Manuel (2006) 10 NWLR (pt. 989) 583.
He reproduced ground 3 of the notice of appeal and argued that there was no where in the ruling of the lower court where it considered any application brought by the appellant in suit No.KWS/131/2008. He observed that the only application it considered was the respondents’ preliminary objection in suit No.KWS/131/2008 which it sustained. He insisted that the ground was not a product of the ruling of the rower court and so incompetent, citing the case of Iloabachie v. Iloabachie (supra) in support.
Learned counsel took the view that ground 4 of the appellant’s notice of appeal was narrative and prolix and its particulars argumentative and so incompetent and ought to be struck out. He placed reliance on the case of Khaliz vs. Yar’adua (2004) All FWLR (pt. 225) 11 at 87 – 138.
He reasoned that ground 5 contained two complaints and, therefore, vague and incompetent. He added that the first and second particulars of that ground did not flow from it because while the ground related to estoppel, the particulars related to consensus ad idem in an agreement or contract. He placed reliance on the cases of Stirling Civil Engineering Nig. Ltd, vs. Tahyah (2002) FWLR (pt.114) 552 at 561; Yelwa Umar (2005) All FWLR (Pt.291) 1670 at 1683-1684. He persisted that the third particular was not a particular, but another complaint and so argumentative and incompetent. He prayed the court to strike out the first – third particulars of ground 5 of the notice of appeal. He submitted that the effect of striking out defective particulars was that the remaining particulars would be rendered otiose, placing reliance on the cases of Honik Kachia vs. Yazid (2001) 17 NWLR (pt.742) 431 at 448 461; Sawmil Nig. Ltd. vs. Mary Okogie Holt (1994) 2 NWLR (Pt.326) 252.
Learned counsel took the view that grounds 6 and 7 were narrative and argumentative and their particulars did not flow from them and both rendered incompetent. He relied on the cases of Kalu vs. Uzor (2006) 8 NWLR (pt. 981) 66 at 99-100; Jimoh v. Starco Nigeria Ltd. (1998) 7 NWLR (pt.558) 523 at 531; Ezomo vs. New Nigeria Bank plc. at 641-642; Ezewusim vs. Okoro (1993) 5 NWLR (pt.294) 478 at 493.
He submitted that the consequence of incompetent grounds of appeal was dire to the appeal as any issues formulated from incompetent grounds would be struck out, citing the cases of Gambari vs. Ilori (2002) 14 NWLR (pt. 786) 87 at 93; Agbaka vs. Amadi (1998) 7 SC (Pt. 111) 8 at 22. He maintained that once an issue encapsulated more than one ground of appeal out of which one or more was incompetent (as in the instant case) the entire issue was bound to be discountenanced as it was not for the court to undertake a surgical operation on the issue with a view to excising what was valid from that which was not in the argument. He referred to the case of Gwandu v. Gwandu, without citation. He prayed the court to strike out the incompetent grounds with all the arguments thereunder.
Learned counsel argued that the striking out of the grounds and the relevant issues had nothing to do with the issue of fair hearing. He placed reliance on the case of Sosanya v. Onadeko (without citation); Willongby vs. International Mechant Bank Nig. Ltd. (1987) 1 NSCC 41 at 66. In the light of the foregoing submissions, learned counsel concluded that the appeal was liable to be dismissed preemptorily.
On behalf of the appellant, its learned counsel submitted that signing of a document was to authenticate it especially where there might be doubt. He noted that in the case in law, it was not doubted who the appellant’s lawyer was or that the appellant filed an appeal. He observed that there was no provision in the Court of Appeal Act, 2004 prescribing signature of the appellant or its counsel. He cited and reproduced the provisions of section 24 of the Court of Appeal Act and Order 6 Rule 2 of the Court of Appeal Rules, 2007. He insisted that filing of appeal was in accordance with the law or rule of Court – the Court of Appeal Rules, 2007. He added that in furtherance of the above rule, Form 3 was designed which form prescribed the name and address of counsel. He referred to the First Schedule to the Court of Appeal Rules. According to learned counsel, by section 30 of the Court of Appeal Act, 2004, an appellant ”includes a legal practitioner representing such a person in that behalf”. He maintained that signing of notice of appeal might be conventional or traditional, but not prescribed by the relevant rule of the Court of Appeal. He took the view that the expression unius excluisio atterius, that is, what was not included was excluded applied. He persisted that the authorities cited and strenuously expounded by the respondents’ counsel were not relevant to filing of notice of appeal which prescribed no signature.
Learned counsel contended that the rule of court never prescribed the dating of the notice of appeal;
adding that only date of payment of filing fees that was mandatory. He reasoned that a counsel might prepare his document, date it and file it many days or weeks after. He insisted that counsel’s date was not to the court. He relied on Order 6 rule 7. He maintained that non-dating of notice by counsel was immaterial and that the authorities, cited by the respondents, were not relevant. He posited that the case of Ogbahon v. Reg trustees, CCC (2002) 1 NWLR (pt. 749) 675 at 704 – dealing with effective date of a constitution had no bearing on a notice of appeal where only the endorsement of date of payment of firing fees by the registrar was the binding date. He, forcefully, submitted that the objection on ground of date should be discountenanced.
Learned counsel conceded that the appellant failed to state the relief sought and took the view that it was inadvertence of the appellant’s counsel. He insisted that the provision was only directory and relied on the case of Katto vs. CBN (1991) 9 NWLR (pt. 214) 126 at 147.
He posited that the complaint in the appeal appeared simple and straight forward. He took the view that the lower court did not hear the case, but peremptorily struck out the case and the only possible relief if the appeal succeeded would be for another court to hear the complaint. He called the courts attention to the appellant’s brief of argument which concluded that:
”This court is urged to allow the Appeal and order another judge to hear the case”.
Regarding the objections to the grounds appeal, learned of counsel contended that it was wrong for the respondents to state that the lower court did not state anything that was complained of in ground one. He took the stand that the arguments of the respondents were more appropriate for argument of the appeal than preliminary. He noted that at page 15 of the ‘respondents’ brief, they quoted extensively not only ground 1, but other excerpts which justified the appellant’s complaint. He urged the court to ignore the objection as being frivolous.
He further contended that the complaint of the respondents in ground 3 were more proper for arguments of brief than preliminary objection. He noted that whether the lower court stated as the appellant complained of was for the brief of argument and there should be no short circuiting. He referred to the lower court’s ruling, on page 182 of the record, and the respondents’ objection and insisted that there was no suit No.KWS/131/2008 before the court, but suit No.KWS/131/2007 and the former must be error of typing.
Learned counsel submitted that ground 4 of the notice of appeal was not narrative, but a proper complaint. He added that ground 5 of the notice of appeal was not vague, but clear and that the respondents had argued the ground in their issue 1 in their brief of argument. He posited that grounds 6 and 7 and their particulars were proper.
It was the view of learned counsel that the respondents’ counsel had spent more space on the preliminary objection than on the brief. He submitted that all the objections learned counsel for the respondents raised demonstrated that he understood the ground as he argued all of them very well. He further submitted that the respondents knew very well the complaint of the appellant and had ably replied and argued the grounds. He reasoned that the purpose of a ground of appeal – giving sufficient notice and information to the respondents of the precise nature of the appellant’s complaint against the judgment appealed against – had been satisfied. He maintained that the respondents were not misled by the contents of the grounds and every other thing was technicality citing the cases of Lagga v. Sarhuna (2009) All FWLR (pt.455) 16 17 at 1639; Military Administrator v. Ulegede (2001) 10 SCNJ 43 in support of his submission. He argued that having understood the appeal, the respondents had taken irreversible steps which pointed to their waiver of any irregularity that might have occurred in the notice of appeal. He urged the court to overrule the preliminary objections.
Resolution of the Preliminary Objection:
In attending to the preliminary objection, I will take the grounds upon it was argued seriatim, in their numerical sequence. To his end, it is the first turn of the ground complaint touching on the non-signing of the appellant’s notice of appeal.
However, before an indepth consideration of this complaint, it will be recalled that the respondents chastised all the segments of the notice and grounds of appeal. For this reason, it is imperative to extract from pages 194-196 of the record, the lampooned facets of the notice and grounds, verbatim ac litteratim, for ease of reference and appreciation, thus:
”2. part of the decision of the lower court complained of: Whole.
3. Grounds of Appeal.
1. The decision is against the weight of affidavit evidence before the court.
2. The trial court erred in law in holding that the facts of the suit KWS/131/2007 is the same as in KWS/13/2007 and therefore can be set aside on ground of want of jurisdiction.
Particulars
1. Facts may be the same but legal implications are different,
2. By the nature of the application the court has jurisdiction.
3. The issue of money laundering was not considered by the trial court in KWS/13/2007.
3. The trial court erred in law when it ruled that the application brought by suit KWS/131/2008 is not proper.
Particulars
The law is that a consent judgment can be set aside by motion or by a new suit.
4. The trial court erred in law in holding that because the evidence on oath of one of the named witnesses was not yet filed, it renders the suit incompetent.
Particulars
1. The Rules of Kwara State High Court does not stipulate how many witnesses are required to sustain claim.
2. Failure to include statement on oath of one of the named witnesses does not render a suit void; it can only prevent such witness from testifying.
3. The High Court Rules makes provision for additional witness and evidence even at the time of hearing.
5. The High Court erred in holding that estoppel applies and that the appellants case cannot be considered.
Particulars
1. Estoppel does not apply in a judgment fraudulently and illegally obtained.
2. The trial court did not consider the involuntariness of “the consent” when the only option for the Appellants to get their office opened is by signing “the agreement”.
3. The trial court did not allow oral evidence on the allegation of substitution of a page of “the agreement” leading to consent judgment.
6. The trial court erred in law by striking out the suit at the preliminary objection without affording the appellants the opportunity to prove their allegations.
Particulars
7. The court failed to consider the issue of Dr. Yemi Ajayi and OCTS Educational Service Ltd. as being two different and separate entities and the effect of this on the claim of the respondents.
Particulars
1. The acts of the company (i.e. OCTS Educational Services) are different from that of Dr. Yemi Ajayi.
2. The ultra vires acts of an officer of a company if not ratified by the company are not binding on the company as such the acts of Dr. Yemi cannot be imputed on OCTS Educational Services Ltd.
3. Dr Yemi Ajayi is the person who had deal of money with the 2nd Defendant.
8. Other grounds of appeal shall be filed on the receipt of record of proceedings.
Persons directly affected by the Appeal:
Names:
1. Padson Industries Ltd. – Address for service.
2. Mr. Adediji – C/o their counsel,
Ronke Adeyemi Esq.
26, Sulu Gambari Road.
G.R.A. Ilorin,
3. OCTS Educational Services Ltd,
C/o NIIT Building
5, Unity Road, Ilorin.
Counsel to the Apellant
Chief P.A.O. Olorunnisola, SAN
P.A.O. Olorunnisola & Co.
177 University Road, Ilorin.”
I now reverse to the first ground of the preliminary objection, id est, that the notice of appeal is incompetent. The appellant’s response to this vitriolic attack or ground is that signing of a notice of appeal is a conventional practice and not a requirement of the Court of Appeal Rules.
I have my doubts if the appellant’s reply to this terminal point finds solace or favour with the law. In the first place, it overlooks the sacred prescription of order 6 rule 2(4) of the court of Appeal Rules, 2011 that
”(4) The notice of Appeal shall be signed by the Appellant or his legal representative” Curiously, the appellant quoted the provision of order 6 rule 2(1) in extenso, but could not travel down to rule 2(4), perhaps, to hoodwink the court. The provision is there for all purposes and the appellant’s ignorance of same is of no moment to its existence and efficacy. The provision, a sacrosanct one, takes the appellants submission on this crucial point to the cleaners.
In the second place, it is trite law that unsigned document commands no value in legal proceedings, see Omega bank (Nig.) Plc v. O.B.C. Ltd (supra).
The effect of signing of a notice of appeal is better appreciated in the domain of case law authorities. In this regard, I will take parties through the recent decided cases on this critical point. In the case of Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521, the supreme court, per Onnoghen JSC declared a notice of cross-appeal signed by a firm of legal practitioners, J. H. C. Okolo, SAN & Co., as incompetent on the ground that it failed to conform to the provision of section 2 (1) and 24 of the Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 1990. Again, the later case of Oketade v. Adewunmi (2010) 8 NWLR (pt.1195) 63, the supreme court, per Tobi, JSC, declared the appellant’s notice of appeal incompetent because it was signed by a firm of legal practitioners, Olujimi and Akeredolu, contrary to the provision of the same 2(1)and 24 of the Legal Practitioners Act. Recently, in the case of SLB Consortuim Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) 317, whose facts were in pari materia with the cases of Okafor v. Nweke (supra) and Oketade v. Adewunmi (supra), the apex court consolidated its stance on the incompetence of a notice of appeal signed by a firm of legal practitioners which is unknown to Legal Practitioners Act. In the case of Uwazurike v. A.G., Fed. (supra) the Supreme Court discountenanced a notice of appeal because it was not signed by the appellants themselves, but by their legal representatives.
In first three ex cathedra cases dissected above, the Supreme Court branded their notices of appeal incompetent and invalid on account of signatures of firm of legal practitioners, a fortiori notice of appeal that is totally devoid of any signature. The appellant’s notice of appeal, to all intents and purposes, presents a more serious and damaging defect in the sense that it is not signed at all. The omission to endorse the notice of appeal, tacitly conceded by the appellant, is a costly failure which makes it, seriously, reek of incompetence.
The apparent lack of appellant’s signature or that of its legal practitioner on the notice of appeal vitiates its validity and viability. In the common legal cliche, the appellant’s notice of appeal, for want of signature, is not worth the paper it is written even as it impinges on the jurisdiction of this court to utilize it. Even if one is to go by the contention of the appellant, that signing of a notice of appeal is traditional, which is not conceded, I make bold to observe that the convention has acquired the status of law given the provision of Order 6 rule 2 (4) of the Court of Appeal Rules, 2011. I further draw on the backdrop of the law that an unsigned document, including process filed in court, is worthless and drained of any efficacy. In the end, I hold that the appellant’s failure or neglect, either intentionally or inadvertently, to sign its notice of appeal is a desecration of the mandatory provision of Order 6 rule 2 (4) of the Court of Appeal Rules, 2011 and same is rendered wholly incompetent.
The respondents took a swipe against the notice of appeal on the ground that it was not dated. This castigation, to my mind, has no backing of the law. By law, the material date is the date of filing a process of court, not the date a Party or legal practitioner appended on it, see Eke v. Ogbonda (2006) 18 NWLR (Pt.1012) 506. A party or a lawyer may date a document months before it is filed in court. A court process that is undated, but duly filed with the date of payment filing fees, has satisfied the requirement of the provision of order 6 rule 7 of the Court of Appeal Rules, 2011. In the result, this attack is not potent enough to vitiate the appellant’s notice of appeal.
A third onslaught the respondent lauched against the appellant’s notice of appeal is that it is without reliefs. Here the provision of order 6 rule 2 (1) of the court of Appeal Rule, 2011 comes in handy. It provides:
”2 – (1) All appeals shall be by way of rehearing and shall be brought by notice (hereafter called ”the notice of appeal”) to be filed in the registry of the court below which shall set forth he grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service” It can be gleaned from this provision that one of the major components of a notice of appeal is that it must showcase the reliefs being claimed by an appellant. In legal practice, such claims for reliefs usually come towards the tail end of any notice of appeal, conceding the rear position to the names and address of parties directly affected by the appeal. I have given a calm and meticulous examination to the appellant’s notice of appeal reproduced above.
There is no place, throughout the length and breadth of the notice of the appeal, where the appellant stated the remedies it is soliciting from this court. On this score, it is axiomatic that the notice of appeal runs foul of the inviolable provision of Order 6 rule 2 (1) of the Court of Appeal, 2011 which has employed the mandatory word ”shall” a vis-a-vis the disclosure of reliefs. A court of law, invariably manned by human beings, is not a clairvoyant to know, without clear supplication, the claims relevant to the appellant’s appeal. In the same vein, a court of law is not a santa claus or a philanthropic institution that manifests its magnanimity in unsolicited claims. These are why it is imperative that the appellant would have complied with the provision of Order 6 rule 2 (1) of the Rules as it concerns remedies. I am afraid, the appellant’s failure to factor its necessary reliefs into its notice of appeal constitutes a serious blight or blot on its competence. In the absence of reliefs, this court will be labouring in vain in the consideration of the appeal.
There is no gainsaying the fact that unclaimed relief impinges on the jurisdiction of the court to entertain a matter, whether at first instance or at the appellate level. In the case of Agu v. Odofin (1992) 3 SCNJ 161 at 173, Karibi-Whyte, JSC, stated:
”Our adjudicatory system has severely circumscribed and restricted the awards to be made by the court within the scope of the claims made and reliefs sought by the parties before the court. The view of this court is that it is without power to award to a claimant or grant a relief that which he did not claim… A court of law may award less, and not more than what the parties have claimed…. A fortiori the court should never award that which was not claimed or pleaded by either party”.
see, also, Fayemi v. Oni (supra); Uzoukwu v. Ezeonu (supra); Agbi v. Ogbe (2006) 11 NWLR (pt.990) 65; Eagle Super Pack (Nig.) Ltd. v. ACB Plc (2006) 19 NWLR (pt.1031) 20; Veepee Ind. Ltd. v. Cocoa Ind. Ltd (2008) 13 NWLR (pt.1105) 486;
This current state of the law, x-rayed above, makes mince-meat of the feeble defence erected by the appellant to the effect that the inclusion of reliefs in its notice of appeal is an inadvertence of counsel. In my view, the omission has disrobed the court of its jurisdiction over the entire appeal so that it is beyond redemption by mistake of counsel. By the same token, the appellant’s omnibus prayer, to allow the appeal and order another judge to hear the case, sandwiched between conclusion and list of authorities at the twilight of its brief of argument does not, in my view, satisfy the requirement of the provision of Order 6 rule 2 (1) of the Rules which specifically mandates the appellant to disclose its claim in the notice of appeal. I must add, pronto, that the appellant’s failure to conform to the provision of order 6 rule 2 (1) and (4) of the court of Appeal Rules, 2011, bordering on disclosure of reliefs and signing of the notice of appeal respectively, constitutes two instance where noncompliance with the rules smack of incurably irregularity as they negatively affect the very foundation of the appeal and the jurisdiction of this court o hear same. In the light of the foregoing analyses, I am persuaded by the submission of the respondents on this killer point that the appellant’s notice of appeal is incompetent. In same, I declare the notice of appeal is plagued by or tainted with incompetence on account of lack of reliefs therein.
I now move into the specific attacks the respondent unleashed against grounds 2, 3, 4, 5 6 and 7 of the appellant’s seven-grounds of appeal. The respondent carpeted ground 2 of the grounds of appeal on the reason that it did not flow from the decision of the lower court. In treating this point, I will take the respondents to page 182 line 5-9 of the printed record, whereat the lower court found:
”Having carefully perused the reliefs sought in the new suit No KWS/131/07 one will come to the conclusion that they are the same reliefs sought in suit No. KWS/13/07 but recoined in another words.
The claimant is indirectly seeking the permission to reopen the case, so as to enable him provide evidence in the case”.
This finding puts paid to the respondents argument that the ground did not flow from the decision of the lower. At the same time, it vindicates the appellant that the ground is a product of the finding of the lower court. With the finding, it is crystal clear ‘that the appellant’s ground 2 is not a stranger or alien to the decision of the lower court so as to make it incompatible with the law. In a word, the respondents’ attack against this ground (2) is, completely, unsubstantiated and I will not hesitate to discountenance the objection to it. At once, since the ground is cognizable in law, the respondents’ contention that its particulars are defective, because something cannot be put on nothing, pales into insignificance. It is a non sequitur.
The appellant picked holes in the appellant’s ground 3 on the reason that there was no suit NO. KWS/131/2008, but KWS/131/07. I decline the respondent’s invitation to excise this ground from the appeal. I, totally, fall in with the appellant’s contention that it was an error of typing.” It is a printer’s devil. This has to do with the fallibility of every human being.
Perfection is an ideal that can only be achieved by God, the Creator. To demonstrate that what goes around comes around, the respondents still referred to the nonexistent suit No KWS/131/08 in paragraph 4.14 line 6 on page 10 of their brief of argument. I take it as a typographic error and I will not count it against the appellant. In this connection, I take both parties to be in pari delicto, see, Nwaolisah v. Nabufoh (2011) 14 NWLR (pt. 1268) 600. I take judicial notice of the fact that it was suit No. KWS/131/07, not suit No, KWS/131/08, that was before the lower court and the origin of this appeal.
In all, there is no merit in the respondents’ objection to this ground.
Also, the appellant’s ground 4 was not left out under the respondents’ sledgehammer of criticisms.
The respondents excoriated the ground as being narrative and prolix and its particulars as argumentative contrary to the provision of order 6 rule 2(1) of the Rules. ”Prolix” means: ”Tediously wordy, long-winded, verbose”. ”Narrative” means: Description Of events, the act or art of narrating”. ”Argumentative” means: ”Excessively fond of arguing or raising objections”. For the meanings of these words, see The New Webster’s Dictionary of the English Language, International Edition, pages 800, 665 and 49 respectively.
I have married ground 4 with the above meanings of narrative and prolix and I cannot see my way clear to brand it as being long-winded or description of an event. The ground exhibits the very feature or hallmark of a ground of appeal. It is a concise statement of the head of complaint of the appellant.
The particulars of the ground are far from being argumentative too. On the contrary, they have performed their assigned function to shed light on the complaint against the lower court’s judgment sought to be impugned, see Nsirim v. Nsirm (1990) 3 NWLR (Pt.138) 285; Osasona v. Ajayi (2004) 14 NWLR (Pt. 894) 527.
In all, I hold the view that ground 4 and its concomitant particulars are well rooted in law. In the circumstance, the respondents’ objection to their legality flies in the face of the law. Accordingly, the objection to the validity of this ground fails.
The respondents’ quarrel with the appellant’s ground 5 is that it is vague. The adjective, ”vague”, means: ”Not clearly grasped in the mind, not precise in expression, not firmly determined, not clearly perceived, not clearly formulating or expressing ideas”, see The New Webster’s Dictionary of the English Language, International Edition, page 1085.
I have juxtaposed the ground with the above meaning of vague. I beg to differ with the respondents that the ground comes within the meaning of vagueness. The ground is miles away from being woolly and nebulous to warrant being mowed down and weeded out of the appeal since it has not, in any way, offended the stipulation in Order 6 rule 3 of the Rules.
Similarly, the particulars to the ground do not in the least deserve the strictures the respondents have passed on them. Like those particulars to ground 4, they have performed their duty of throwing light on the complaint against the lower court’s the judgment sought to be decimated, see Nsirim v. Nsirim (supra); Osasona v. Ajayi (supra), In view of the above, the respondents’ objection to this ground appears feeble and unwarranted. I will, therefore, ignore it.
The respondents attacked the appellant’s grounds 6 and 7 jointly as being narrative and argumentative. I have taken the two grounds” to the meanings of narrative and argumentative aforestated. The two grounds, to my mind, are not plagued by any of the vitiating elements in those words. In other words, the two grounds have not violated the provision of Order 6 rule 2 (3) of the Rules by being narrative and argumentative. If anything, they are concise statements of the heads of complaints of the appellant.
Interestingly, too, the particulars are the direct offshoots of the two grounds. I decline to honour the tempting invitation of the respondents to jettison them from this appeal. This twig of objection, like the others, stands on a quicksand and it is a non-starter.
In the aggregate, on the respondents’ oppositions to the appellant’s grounds of appeal, I hold the view that the grounds are firmly rooted and quite in keeping with the law. I have no cause whatsoever to disturb them with their accompanying particulars. I rather welcome them to this appeal.
Overall, I had reached a solemn finding, based on lack of signature and reliefs, that the appellant’s notice of appeal is incompetent. I have no reason to tinker with the finding, not even the latter finding, that the grounds of appeal are competent, is potent enough to upset it. This is because, an appeal is duly commenced and constituted by dint of a notice of appeal. A notice of appeal is, in the eyes of the law, an initiating process that forms the nucleus, fulcrum, rinchpin and spinal cord of any appeal. Due to the fundamental nature of a notice of appeal, an appeal is rendered impotent and non-existing where it is incompetent and vice versa. As matter of hard law, where any segment of a notice of appeal is, for whatever reason, incurably defective, it contaminates other innocent sections of the notice and, de jure, the entire appeal it is supposed to breath life into.
Against the backdrop of the above reasons, the appellants’ incompetent notice of appeal, on account of want of signature and reliefs, infects the entire appeal, including the grounds, and renders same wholly incompetent. It is settled law that once notice of appeal is marooned in the miasma of incompetence, a court of law will be disrobed of the jurisdiction to entertain the appeal. This hallowed and agelong principle of law has received the blessing of the Supreme Court in a galaxy of decided authorities, see Agu v. Odofin (supra); Adelekan v. ECU-Line NV (2006) 12 NWLR (pt. 993) 33, Okolo v. UBN Ltd. (2004) 3 NWLR (pt.859) 87; Ikweki v. Ebele (2005) 11 NWLR (pt. 936) 397 Uwazurike V. A-G., Fed (2007) 13 NWLR (pt. 1035) 1; Akpan v. Bab (2010) 17 NWLR (pt. 1224) 421; General Electric Co. v. Akande (2010) 18 NWLR (pt. 1225) 596. Agbaka v. Amadi (Supra).
The point must be drummed home that the fact that the grounds of the appeal are competent does not make the entire appeal competent. The reason is simple, I have adjudged the notice of appeal, the foundation, substratum and bedrock of the appeal, as incompetent. The competent grounds cannot rejuvenate the invalid notice otherwise it will be akin to putting something on nothing which will ultimately come to naught. In the case of Aderibigbe v. Abidoye (2009) NWLR (Pt. 1150) 592 at 597, Tobi, JSC, captured the vanity and futility of such exercise when he opined.
”… One can only add to an existing thing. One cannot add to a non-existing thing. It is both a legal and factual impossibility…
This is because one can only add something to something. One cannot add something to nothing. In the latter case, as there is nothing to hold or support the something, it will fall or crumble.
That is the away see the situation here”
Ditto for the case in hand – that is the way I, too, see the situation in this appeal. The entire appeal crumbles owing to the contagious nature of the incompetent notice of appeal.
Before handing down my verdict in this preliminary Objection, it is imperative to recall, for guidance of counsel, the admonition of Onnoghen, JSC, in the case of Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 at 532 – 5313, when a similar scenario played out. He intoned:
”In arriving at the above conclusion, which is very obvious having regard to the law, I have taken into
consideration the issue of substantial justice which is balanced on the other side of the scale of justice with the need to arrest the current embarrassing trend in legal practice where authentication or franking of legal documents particularly processes for filing in the courts have not been receiving the serious attention they deserve from some legal practitioners. Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country. The law exist as a guide for actions needed for the practice of the law, not to be twisted and turned to serve whatever purpose, legitimate or otherwise which can only but result in embarrassing the profession if encouraged. It is rather unfortunate that the offending processes originated from the hallowed chambers of a learned senior advocate of Nigeria who did not even see them as improper and unacceptable…
On the other side of the judicial scale in the balancing act, is the issue of substantial justice which I said had been adequately taken into consideration in this ruling. The conclusion that must be reached in this matter is that the documents are incompetent and are struck out leaving the applicants with the opportunity to present a proper application for consideration by this court. The effect of the ruling is not to shut out the applicants but to put the house of the legal profession in order by sending the necessary and right message to members that the urge to do substantial justice does not include illegality or encouragement of the attitude of ‘anything goes’.”
Since my jurisdiction to adjudicate over the appeal is denuded on account of incompetent notice of appeal, the order to be made is not a moot point. It is an order striking out the appeal, see Okolo v.UBN Ltd. (Supra); Dairo v. UBN Plc (2007) 16 NWLR (Pt.1059); Tsokwa Motors (Nig.) Ltd. v. UBA Plc (2008) 15 NWLR (Pt. 110) 335. In due obeisance to the law, I uphold the respondents’ preliminary objection. Consequently, I strike out the appellant’s appeal for want of jurisdiction arising from the incompetence of the notice of appeal.
Ordinarily, having upheld the respondents’ preliminary objection, with its concomitant harmful result of striking out the appeal, I ought not to proceed further in this appeal. Nevertheless, the law compels me to do otherwise, being the second to the last court on the judicial ladder in this country. It is on the premise of this penultimate position, in the judicial hierarchy, that the law insists that I should consider the main appeal per adventure the Supreme Court, on appeal to it, does not agree with my reasoning on the preliminary objection. Where it differs with my view on the preliminary objection, it will have the benefit of my stance thereby obviating the necessity of sending the matter back for want of consideration. This is aimed at saving judicial time and costs for the parties and the courts alike and ensuring that parties are not denied their inviolate right to fair hearing as entrenched in section 36(1) of the 1999 constitution, as amended. This current position of the law has received the imprimatur of the Supreme Court, see Tanko v. UBA Plc. (2010) 17 NWLR (pt1221) 80 at 92; Ada v. NYSC (2004) 13 NWLR (PT. 891) 6119, Obiuweubi v. CBN (2011) 7 NWLR (Pt. 1247) 465. Following this present state of the law, I move on to resolve, the issues in the appeal.
CONSIDERATION OF THE APPEAL
In its brief of argument, the appellant crafted five issues for determination of the appeal viz:
”3.01. Whether the facts of case KWS/13/2007 are the same as in KWS/131/2007 as to justify the holding of estoppels – this relates to grounds 2 and 5.
3.02. Whether the Appellant was right in bringing a fresh suit in Order to set aside the consent judgment Ground 3.
3.03. Whether the trial court was right in terminating the case at the preliminary stage – Ground 6.
3.04.Whether the court was right in striking out a suit on account that the evidence on oath of one of the two witnesses were not filed-Ground 4
3.05. The decision of the trial court is perverse – Grounds 1 and 7.”
On the other hand, the respondents, in their brief of argument, framed two issues for determination of
the appeal to wit:
”(i) Whether suit No. KWS/131/2007 is caught by doctrine of estoppel and ipso facto constitutes an abuse of judicial process. (grounds 1, 2, 5 and 7)
(ii) Whether the trial court can strike out in limine an incompetent suit which aimed at relitigating suit No. KWS/31/07 wherein consent judgment has been delivered (Grounds 3, 4, 6)”
I have situated the appellant’s issues for determination with those of the respondents’. It seems to me that the respondents’ issues for determination can be properly subsumed under the appellant’s all-encompassing issues for determination of the appeal.
To this end, I will consider the appeal on the footing of the appellant’s issues for determination which are more comprehensive.
Arguments on the issues on issues one, learned counsel for the appellant intimidated the court that the lower court in considering those issues, on pages 176 – 177 of the record, said that the parties in the two suits were the same and concluded that estoppel applied. He, then, submitted that an application to set aside a consent judgment had to be same parties and facts and the fresh action need to state the grounds for such application. He noted that judgment in KWS/13/07 overlooked the serious legal issues that emanated from the facts by virtue of the affidavit evidence before the lower court. He stated that a court would not close its eyes to illegally nor allow parties to compromise illegairity apparent before it, placing reliance on the case of Sodipo vs. LemninKainen (1986) 1 NWLR (Pt. 15) 220; Ajaokuta Steel Co. Nig. V. corporate Insurers Ltd. (2004) All FWLR 189 at 206. He added that the consent judgment failed to take into consideration the evidence before it protesting that it was Dr. Adeyemi Ajayi and not the appellant that was liable and that the former was not authorized to deal with such transaction which was ultra vires the appellant. He referred to the appellant’s Memorandum and Articles of Association on pages 101-120 of the record:
Learned counsel noted that the claim in KWS/13/07, on pages 59 – 64 of the record, related to possession of the premises of No. 5 Unity Road, Ilorin between the appellant and the first respondent but the respondents counter-claimed for foreign exchange between Dr. Yemi Ajayi and the first respondent – an exercise of money laundering. He referred to their counter-claim, on pages 65-70 of the record, wherein they pleaded fraud’ breach of trust and misappropriation of their fund. He insisted
that the appellant’s claim, on page 36 of the record, in suit No. KWS/131/07 could not be stretched out to be the same as that in suit No. KWS/13/07 on page 64 of the record. He noted that the appellant, in Suit No. KWS/13/2007, filed a defence to counter-claim, on pages 71-80 of the record, wherein it declared Dr. Adeyemi Ajayi to be on his own in the transaction of foreign exchange.
He restated the law that a statement of claim determined the jurisdiction of the court. He urged the court to hold that the lower court was wrong to have held that there was an estoppel of the case. He noted that the lower court went into the merit of the case at the preliminary stage contrary to all principles of law forbidding such act. He cited the case of Vulcane Gases v. G. F. Ind. A. G. (2001) 5 SCNJ 55. He concluded that the question of estoppel did not arise in a fresh action to set aside consent judgment.
On behalf of the respondents, their learned counsel submitted that suit No. KWS/131/07, which led to the appeal, was an abuse of judicial process having been caught by the doctrine of estoppels. He stated that the lower court came to the conclusion that the issues and reliefs in the two suits, KWS/13/07 and KWS/131/07, were the- same and caught by estoppel. He referred to the holdings on pages 182- 183 of the record. He narrated the submission of the appellant to the contrary before the lower court. He cited the cases of Njoku v. Eme (1993) 5 SC 211 at 220 and Halbury’s Law of England, 4th Edition, paragraph 977 and maintained that the contention of the appellant that because it did not raise the issue of money laundering in suit No KWS/131/07 it could not be caught by the doctrine of estoppel was unfounded as it was merely contending that the object of the second action was different from the first action.
He further submitted that the doctrine of estoppels applied not only to the point upon which the court was actually required by the parties to form an opinion and pronounce judgment, but applied to every point which properly belonged to the subject matter of litigation which the parties exercising reasonable diligence might have brought forward at the time. He explained that that meant that a Party was not at liberty to take his reliefs or defence in piece meal and sue the defendant as many times as he would wish interest ripublicae ut sit finiis litium. He relied on the case of Akinseye v. Safa Splints Ltd. (1992) 7 NWLR (Pt. 252) 24 at 248 249; Afolabi v. Military Governor of Osun State (1995) 8 NWLR (Pt. 561) 261 at 281; Cardoso v. Daniel (1986) 2 NWLR (Pt.20) 1; Fadiana v. Gbadebo (1978) 3 5C 219. He reasoned, based on those authorities, that suit No. KWS/131/07 was caught by estoppel regardless of the issue of money laundry which the respondents had opportunity to raise in suit No. KWS/31/07, but failed, omitted and or neglected to do so. He justified the conclusion of the lower court, on page 182 of the record, that it had no jurisdiction to hear suit No. KWS/131/07.
Learned counsel contended that the appellant’s argument that since the new suit contained other reliefs, estoppel should not apply was grossly misconceived, relying on the case of Min. for works v. Tomas (Nig) Ltd. (2002) 2 NWLR (Pt.752) 74 at 780. He posited that the appellants contention on compromised illegality, based on its Memorandum and Articles of Associations, showed the confusing state of its mind because those documents were not put before the court in suit No. KWS/13/07, but it brought them in suit No. KWS/131/2007 attached to its affidavits in support of motion to file documents. He referred to the provisions of sections 66 (3) and 70 of the Companies Allied Matters Act to support his postulation.
He referred to the appellant’s contention that estoppels would not apply to judgment fraudulently and illegally obtained and argued that that submission was strange in the circumstance of that case where the parties and their counsel consented to the terms of judgment after an out of court settlement. He added that the issue of involuntariness of consent was not canvassed before the lower court. He noted that the only issue of alleged substitution of a page of the terms of settlement was considered by the lower court and it came to the conclusion that it was not proved and there was no ground against that specific finding. He took the view that the cases of Afegbai v. A. -G., Edo State (2001) 7 SCNJ 438 at 456 and vulcan Gases v. G. F. Ind. A.G (2001) 5 SCNJ. 58 at 83 -84 were different from the case in hand where parties agreed to consent judgment unlike in those cases where the court was misled into entering consent judgments. He insisted that those two cases supported the respondents’ case.
On issue two, learned counsel for the appellant contended that a consent judgments could be set aside.
He referred to the cases of Afegbai v. A-G., Edo State (2001) 7 SCNJ 438 at 456 and Vulcano Gases v. G. F. Ind. A.G. (2001) 5 SCNJ 55 at 83-84 where the court set aside consent judgment based on fresh actions filed by one of the parties to the consent judgments without discussing their facts before hearing. He stated that the appellant filed a fresh action and the lower court went into the substantive issue in an interlocutory application and ruled that the appellant should not have come by way of a new suit, but could only appeal. He insisted that the appellant was ready to prove that the consent judgment ought not to be against it who protested throughout that it never authorized Dr. Adeyemi Ajayi to collect N14M or N15M from the respondents. He added that under the grave pressure of refusal to give the appellant possession of its school back the consent judgment was extorted. He noted that the respondent failed to state that Dr. Adeyemi Ajayi was different from the appellant and their counsel treated him as the alter ego of the appellant. He insisted that the consent judgment was obtained by blackmailing, sign the document and your school would be given to you.
Learned counsel further contended that the fresh action initated by the appellant after the consent judgment was proper. He observed that the lower court intended that the appellant should prove fraud or any vitiating ground in the interlocutory application and referred to its ruling on page 177 of the record. He persisted that the ruling showed that the lower court did not appreciate that the fresh suit ought to set out the grounds upon which the consent judgment should be set aside. He asked ”…if the trial court believed that the fresh action contains other reliefs why should the court say that the case is an estoppel?” He took the view that the case had to be the same before allegation of vitiating ground could be made. He repeated the point that the lower court did not take evidence, but on a preliminary objection struck the case. He posited that the statement of the lower court, on pages 181-182 of the record, on whether the new suit was right or that if the case KWS/13/07 was set aside only the appellate court could resuscitate the application before it was a misconception of law. He urged the court to allow the appeal on that ground.
On the issue two, learned counsel for the respondents argued per contra that the lower court was right when it held that suit No. KWS/131/07 was a ploy to re-open and relitigate suit No. KWS/13/07 consequent upon which the former was struck out. He noted that parties could apply to set aside consent judgment, but there must be grounds upon which such judgment should be set aside. He referred to the case of Ononaku v. Akubue (2009) 15 NWLR (pt. 1165) 539 at 558 where those grounds were enumerated. He submitted that none of those grounds or circumstances had been shown or established to warrant the lower court to set aside the consent judgment signed by parties and made its judgment. He took the stand that it was too late for the appellant to condemn the consent judgment which it voluntarily signed in the presence of his counsel and re-litigate the very issue which had been determined.
On issue three, learned counsel for the appellant argued that it was unfortunate that the lower court struck out the appellant’s case. He submitted that the statement of the lower court, on pages 181 – 182, on whether the new claim was right or that if the case KWS/13/07 was set aside only the appellate court could resuscitate the application before it was a misconception of the law.
Contrariwise, learned counsel for the respondents contended that where a suit was incompetent, frivolous and vexatious, the court had the inherent power to strike it out and or dismiss same in limine. He placed reliance on the case of Bagudu v. FRN (2004) NWLR (pt. 853) 182 at 204; Offor v. Leaders & Co. (2007) 7 NWIR (Pt. 1032) 1 at 24. He reasoned that the claims of the appellant in the lower court constituted an abuse of judicial process and it was justified to strike same out in limine.
Regarding issue four, learned counsel for the appellant drew the court’s attention to page 182 of the trial record where Order 2 rule 2 (2) of the Kwara State High Court (Civil Procedure) Rules, 2005 was set out. He noted that in compliance with that rule, the appellant listed two witnesses, but gave evidence on oath of one of them. He referred the court to lower court’s holding on page 183 of the record, that the appellant’s action was defective and incompetent and it lack the jurisdiction to entertain it. He described the holding of the lower court as wrong since the rule did not state what penalty awaits its non-compliance and it was merely directory, citing the case of Katto v. CBN (1991) 9 NWLR (Pt. 214) 126 at 147. He maintained that since there was evidence on oath of one of the two witnesses that could sustain the case and since the appellant was not bound to call a host of witnesses, the lower court ought not to have shut it out from proving its case with one witness. He posited that the lower court did not avert its mind to the provision of Order 4 rule (1) of the Kwara State High Court (Civil procedure) Rules, 2005 on the effect of non-compliance and it, unfortunately, did what the provision forbid it to do. He persisted that the ruling was based on technicality to the detriment of substantive justice contrary to the Supreme Court injunctions in the case of Opia v. Ibru (1992) 3 NWLR (pt.231) 658 at 690. He urged the court to set right the wrong done to the appellant by allowing the appeal.
For the respondents, learned counsel argued that judicial process of court was being abused where there was no iota of law in support of the procedure for the commencement of the action, citing, in support, the case of Saraki v. Kotoye (1992) 9 NWLR (pt.264) 156 at 169. He further argued that order 2 rule (1) and (2) of the Kwara state High Court (Civil Procedure) Rules, 2005. which he reproduced, was against the appellants given the interpretation given a similar provision in the Federal High court (Civil Procedure) Rules, 2000 in the Case of Okonkwo v. INEC (2004) 1 NWLR (pt.854) 242 at 256. He added that where a legislation prescribed a procedure for doing an act, only that procedure could be followed to make the act competent and lawful. He relied in the case of Nuhu Sanni Ibrahim v. INEC (1999) 8 NWLR (pt. 614) 334 at 352. He persisted that failure to comply with the provision of Order 2 rule 2 (2) of the High Rules, with the omission to attach the statement on oath of all the witnesses listed, was fatal to the commencement of the suit of the appellant at the trial court and same robbed the lower court of its jurisdiction as it rightly held. He cited the case of Drexel & Energy v. Trans International Bank Ltd. (2008), 8 NWLR (Pt. 1119) 388 at 416. He concluded that the appellant conceded to the failure to comply with the provision of order 2 rule 2 (2) of the High court Rules and the lower court was justified to have held that the appellant’s case was defective and declined jurisdiction.
With regard to issue five, learned counsel for the appellant submitted that the case was tried by affidavit evidence. He noted that the appellant attached only one evidence on oath of only one witness while the respondents swore to affidavit evidence through their witness. He referred to the writ of summons in KWS/131/07, on page 32 of the record. He highlighted the appellant’s reliefs F3 and further submitted that those complaints made out in its statement of claim, on page 34 of the record, and backed up by the evidence on oath of Favour Ekpo on page 37 of the record, and reasoned that those complaints that would nullify a contract were the prima facie case that the appellant made out. He restated the law that it was the claim of the appellant that should be considered in determining jurisdiction- He asked the rhetorical questions: ”can a person who has no authority bind its principal in contract, can an agent transact a business it has not been given power to transact, can parties compromise to commit illegality, can parties compromise and pervert government policy. Is it not an act of fraud to equate the personality of company with its alter ego under company law?” He, then, urged the court to hold that the evidence before the lower court did not justify the holdings and the judgment was perverse. He placed reliance on the case of Vulcan Gases v. G. F. Ind. A. G. (2001) 5 SCNJ 55 at 35. He referred to paragraphs 13, 14, 15, 16, 17, 18, 19, on pages 34-36, 44-48, 50, 130, 132, and 137 of the record, which showed that prima facie the transaction was between Dr. Adeyemi Ajayi and not the appellant and for the lower court to hold otherwise was a perverse holding. Finally he urged the court to allow the appeal.
On the contrary, learned counsel for the respondent, in response to the appellant’s contention in paragraphs 7.02-7.11 on the issue of cooperate Personality, submitted that the lower court considered the issue, on pages 179-181 of the record, and concluded that the execution of the terms of settlement which included the refund of the said sum and the subsequent act of the appellant to have issued post-dated cheque for payment and infact commenced payment had estopped the appellant from raising the issue.
Resolution of the issues in the appeal:
In resolving the issues in this appeal, I will attend to them in their numerical sequence, one after the other. In this regard, I will kick off with issue one-whether the facts of case suit No. KWS/13/2007 are the same as those No. in KWS/131/2007 as to justify the holding of estoppel.
Expectedly, parties were seriously at odds on this all-important issue. While the appellant took the view that the facts of the two cases were different and divergent without the need for estoppel, the respondents tenaciously justified the lower court’s decision that their facts were the same. It goes without saying that if, on proper comparison, the facts of the two case are identical, subject to the availability of other conditions, the latter case, suit No. KWS/131/2007 would be caught by the doctrine of estoppel rem judicatam, res judicata for short in this appeal.
The simple meaning of res judicata and conditions for its applications were lucidly captured by Tobi, JSC, in the case of Abubakar v. B.O. & A.P Ltd (2007) 18 NWLR (Pt. 1066) 319 at 373 in these illuminating words.
”The expression, res judicata means ”a thing adjudicated.” It came out from the original expression, res adjudicata. The aim of the principle is to put to an end, a matter that was previously litigated by a competent court of law. It is to avoid duplicity or multiplicity of litigation. The principle is designed to save much litigation time. The essence of the principle is that a previous judgment or a judgment previously handed down will constitute a bar to a present action it certain conditions are satisfied.
The conditions are as follows:
(1) the parties in the previous action and the present or current action must be the same;
(2) the subject matter must be the same;
(3) the issues must be same;
(4) the court that decided the previous action must be a court of competent jurisdiction.”
See, also, Bwacha v. Ikenya (2011) 3 NWLR (Pt.1235) 61o; Ayuya v. Yorin (2011) 10 NWLR (Pt.1254) 135; Dakolo v. Rewane – Dakolo (2011) 16 NWLR (Pt.1272) D.T.T. Ent. (Nig) Co. Ltd v. Busari NWLR (Pt.1249) 387; Okposim v. Assam (2005) 14 NWLR (Pt. 945) 495.
The whole essence of res judicata is interest encapsulated in two legal maxims – interest reipublicaeut sit finis litium it is in interest of the state that there be a limit to litigation and nemo debet bis vexari pro una eadem causa no man should be troubled twice for one and the same cause, See Igwego v. Ezeugo (1992) 6 NWLR (pt.249) 561; Alapo v. Agbokare (2010) 9 NWLR (pt.1198) 30; Yusuf v. Adegoke (2007) 11 NWLR (pt.1045) 332, Akinseye v. Safa Splints Ltd. (supra); Cardoso v. Daniel (Supra); Fadiana v. Gbadebo (supra).
Indubitably, the law is trite that where a plea of res judicata, usually deployed as a shield not as a sword, is successful, a court of law is divested of the requisite jurisdiction to hear the matter under contest. The converse is, also, true, that is, where the defence fails the court will be inbued with the jurisdiction to adjudicate over the matter in question, see Ajibola v. Ishola (2006) 13 NWLR (pt.998) 628; Adigun v. Gov. Osun State (1995) 2 SCNJ 1.
With the above background knowledge on the purport and features of res judicata, I will now marry the conditions for its application with the facts and circumstances of the two actions, suit Nos. KWS/13/2007 and KWS/131/2007, with a view to ascertaining whether the latter was entrapped by res judicata. In other words, whether the respondent satisfied the conditions to justify the lower court’s application of estoppel in their favour.
In this wise, I have burrowed into the 196 page record of appeal to ensure even-handed justice on the issue.
Now, on page 59 of the record, the parties in Suit No. KWS/13/2007 were: Octs Education Services, as plaintiff, and 1. Mr. Adediji 2. Padson Industries Ltd. 3. Commissioner of police, Kwara State Command, as defendants. In suit No. KWS/131/2007 the parties thereto, as shown on page 34 of the record, were Octs Educational Services Ltd, as claimant and 1. Padson industries Ltd. 2. Mr Adebiyi, as defendants. A comparison of the parties in the two actions shows that the first Suit No. KWS/13/2007 had three defendants with the Commissioner of Police, Kwara State Command being the third defendant while in the latter Suit No. KWS/131/2007, there were two defendants because the third defendant in the first one was dropped. In the light of the above, I am of the humble view that the parties in the two suit were not the same, In a word, the respondents did not prove the first ingredient for the application of res judicata.
I move on to the second condition-oneness of the subject matter. As can be discerned from the statement of claim and reliefs in suit No. KWS/13/2007, located from pages 59 – 64 of the record, the subject matter of that action is the plaintiff’s (the appellant here) vested tenancy right over No 5 Unity Road, Ilorin vis-a-vis its unlawful eviction by the three defendants therein. Whereas, in suit No. KWS/131/2007, the main res is to set aside the consent judgment, obtained in the first suit No. KWS/13/200, on ground of some unlawful monetary dealings between Dr. Yemi Ajayi, an executive director of the appellant, and the respondents. When the subject matter in the two suits are placed side by side, it seems clear to me that they are poles away from being the same. On account of res differentials, I hold that the respondent failed to establish the second element res judicata.
For the third condition, the issues, inter alia in Suit No. KWS/131/2007 were the appellant’s (the plaintiff therein) right of possession to No. 5 Unity Road, Ilorin and the propriety or otherwise of its unlawful ejection out of the premises by forceful closure of same without an order of court. On the contrary, the issues in suit No. KWS/131/2007 were whether illegal monetary transactions were enforceable order of court by dint of consent judgment and setting aside the consent judgment entered into by the parties in suit No.KWS/13/2007. Simply put, the main issue in the later case was the legality or otherwise of the consent judgment in the first case-suit No. KWS/13/2007. Besides, the claims in suit No. KWS/13/2007 are distinct from those of suit No.KWS/131/2007.
Flowing from these, it is not in doubt that the issues in the two matters are without parallel. For want of Same issues, I hold that the respondent did not discharge the burden of proving the third ingredient of res judicata for the lower court’s invocation of same in their favour.
Regarding the fourth condition, the court that decided suit No. KWS/13/2007 via consent judgment was the same lower court from whence the latter suit No. KWS/131/2007 germinated. Indisputably, the lower court that handed down the consent judgment in the first action, suit No. KWS/13/2007, was a court clothed with the jurisdiction to make the terms of settlement, made by the parties therein, the judgment of the court.
Needless to say that the respondents duly fulfilled the fourth condition for the application of res judicata.
It can be garnered, from the foregoing analyses, that the only condition for the application of res judicata was the competency of the lower court that gave consent judgment in the previous matter suit No. KWS/13/2007. The other three conditions, oneness of parties, subject matter and issues between the two suits, No. KWS/13/2007 and No KWS/131/2007 were not met by the respondents. In law, the four conditions must co-exist and must be satisfied communally before a plea of res judicata will be available to a party who has erected it as a shield in any proceeding. The respondents, who raked up the defence, ran short of meeting its standard of proof. The lower court was therefore, in palpable error when it employed the doctrine of res judicata or estoppel in favour of the respondent, in their preliminary objection to suit No. KWS/131/2007, when the pre-conditions for an invocation of same were glaringly absent. In the end, I resolve issue one in favour of the appellant.
That brings one to a consideration of issue two, whether the appellant was right in bringing a fresh action to set aside a consent judgment. The issue is within a very narrow compass. However, before I delve into the meat of it, it is germane to appreciate the purport of consent judgment. It is not in dispute that parties obtained consent judgment in suit No. KWS/13/2007. The import of consent judgment is vividly captured in the case of Woluchem v. Wokoma (1974)3 SC 153 or (1974) 1 SC 115 at 128 (REPRINT) wherein Ibekwe, JSC, stated:
”The rule is that action may be settled by consent during trial, usually such settlement is a compromise and in order to have a binding effect on the parties, it is imperative that it should have the blessing of the court. Settlement between parties may be described as a contract whereby new rights are created between them in substitution for, and in consideration of, the abandonment of the claim or claims pending before the court. When the court moves and takes action as agreed upon by the parties, it becomes a consent judgment.”
See. also, R.A.S.C. Ltd v. Akib (2006) 13 NWLR (pt.997) 333; D.T.T. Ent (Nig) CO. Ltd v. Busari (supra); S.P.M. Ltd v. Adetunji (2009) 13 NWLR (pt.1159) 647.
It follows that a consent judgment, which is also agreed judgment, is a judgment based on the agreement of parties to an action and given a stamp of legality and efficacy by the court. In practice, the parties negotiate settlement out of the bowel of the court, reduce their terms of agreement into writing, sign and file same in court and request the court to make it judgment for the parties. Hence, consent or agreed judgment is predicated on the consensus ad idem of pasties. It is binding on the parties much the same way as judgment obtained after full-scale trial. It is only appealable with the leave of the court that handed it down to the parties.
Having brought out the meaning and hallmarks of consent judgment to the fore, the nagging question, begging for an answer, is: was the appellant right in bringing a fresh suit to set aside the consent judgment delivered in suit No. KWS/13/2007? In this regard, I seek in aid the case of Vulcan Gases Ltd v. G. F. Ind. A.G.(supra)/(2001) 9 NWLR (Pt 719) 610 at 646, on which both parties placed high premium on in this appeal. In that case, Iguh JSC, stated:
”Where, however, purported consent judgment is vitiated by fraud, mistake, misconception or by any other vice which would afford a ground for setting aside the compromise agreement on which the order was based, no true consent judgment binding on the parties would have emerged. The result, in such a case is that the so called consent judgment can be set aside but by a fresh action. See Talabi v. Adeseye (1972) 8 – 9 SC 20.”
In the subsequent case of Afegbai v. A.G., Edo state (2001) SCNJ 418 at 456/(2001)14 NWLR (Pt.733) 425, Karibi-Whyte, JSC, opined:
”It is clear from the facts of the appeal before us that the consent judgment entered into by the parties is binding on the parties… When a consent judgment has been ordered it remains binding on the parties until it is set aside by a fresh action, if it can be established to have been obtained by fraude – see Talabi v. Adeseye (1972) 8 – 9 SC 20…”
It is clear from these authorities that a party, who is subsequently irked by a consent judgment, has the options to challenge it, if it is vitiated by fraud, mistake or any vice, by instituting a fresh action to ventilate his grievances. These modes are in addition in to the party’s accepted right of appeal against a consent judgment with the leave or permission of the court sought and obtained. Going by these accepted methods of challenging or protesting against consent judgments, I am in a firm footing to return a positive answer to the earlier poser, that is to say, the appellant was at home with the law when it filed a fresh action, suit No. KWS/131/2007, in the lower court to have the consent judgment entered in suit No. KWS/131/2007 set aside. Given the above, the lower court goofed when it ruled that the appellant’s right of protest against the consent judgment must be by dint of appeal. The lower court, with the greatest deference to it, was wrong in law to have circumscribed or limited the appellant to appeal method in challenging the consent judgment. The finding of the lower court was an affront to the other available method, filing of fresh action, preserved and established by judicial authorities.
The finding cannot stand in the face of the law. In sum, issue two is resolved in favour of the appellant.
Now, it is the turn of the tertiary issue. The Appellant’s grouse here is that the lower court ought not to have terminated its case at the preliminary stage. The issue, like the last issue, evinces a very slim scope. As a matter of fact, the fate of this issue, heavily, turns on the outcome of the two issues already determined. I had, while considering issue ore, arrived at the conclusion that since the two actions, suit Nos. KWS/13/2007 and KWS/13/2007, did not exhibit symmetrical features, the lower court was wrong to have invited the doctrine of res judicata to assist the respondents. Again, while examining the second issue, I reached the conclusion that the appellant never offended the law when it filed a new suit to set aside the consent judgment obtained in suit No. KWS/13/2007. For the avoidance of doubt, I still stand firm on those conclusions.
Having regard to these conclusions, it stands to reason that the lower court, had it rightly ruled on those issues, would not have terminated the appellant’s action, suit No. KWS/131/2007, inlimine, using the respondents’ preliminary objection. As already noted, the lower court, with all due respect, wrongly invoked the doctrine of estoppel against the appellant’s action.
The appellant adopted the correct legal modus in challenging the consent judgment. It follows that the
lower court, with all due reverence to it, was not right when it nipped the appellant’s case in the bud. To my mind, the facts and circumstances of that case did not warrant its early termination. The lower court should have heard the appellant out. The mere fact that the appellant took to the method of challenging consent judgment cognizable in law takes its action outside the four walls of frivolity and abuse of judicial process canvassed by the respondents. In all, I resolve the issue (three) against the respondents.
I will proceed to thrash out issue four. The learned of the appellant’s complaint on the issue is that its
failure to file a statement on oath of one of the listed witnesses was not fatal to its action. This issue, squarely, revolves around the interpretation of the provision of Order 2 rule 2 (2) of the Kwara State High Court (Civil Procedure), Rules, 20005 (hereinafter abridged to ”the High Court Rules”). By virtue of that provision, every writ of summons, except where order 23, dealing with undefended list procedure, applies, shall be accompanied by: ”(a) statement of claim; (b) list of witnesses to be called at the trial; (c) written statement on oath of the witnesses; and (d)copies of every document to be relied on at the trial”.
The appellant listed two witnesses to be called at the trial, Favour Ekpo and Dr. Yemi Ajayi, on page 33 of the record. However, it only filed the written statement on oath of Favour Ekpo found on pages 37-38 of the record while that of Dr. Yemi Ajayi was not filed. The parties locked horns on this point. The appellant maintained that the failure to file a written statement on oath of Dr. Yemi Ajayi was a curable irregularity. The respondents stuck to the viewpoint of the lower court which was to the contrary.
It is not in contest that provisions of rules of court, inclusive of the provision of Order 2 rule 2 (2) of the High Court Rules, are meant to be obeyed. Indeed, that is they are made in order to achieve their main aim of fast tracking and smoothing the terrain of dispensation of justice the courts, see ASTC v. Querum (2009) 10 NWLR (Pt.1145) FBN Plc v. T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt.1216) 247; Dingyadi v. INEC (No.2) 18 NWLR (Pt.1224) 154.
Be that as it may, non-compliances with rules of court may be treated as curable or incurable irregularity, depending on the facts and circumstances of a matter.
Where non-conformity with rules of court affects the props of any case or the jurisdiction of any court, it cannot be treated as redeemable irregularity. The reverse is true. That is to say, where non-compliance with the rules do not go to the foundation of a matter or the competence of a court to adjudicate over a matter, it is taken as irremediable or irredeemable irregularity that is capable of nullifying and ruining the entire proceedings, see Mobil Prod, (Nig.) United v. Monokpo (2003) 18 NWLR (Pt. 552) 347, Anyanwoko v. Okoye (2001) 5 NWLR (pt.1188) 497.
In the light of the above exposition of non-compliance with rules of court, was the appellant’s failure to file a written statement on oath of Dr. Yemi Ajayi an incurable irregularity? I have my doubts. To begin with, the appellant did not, in my view, flout, completely, the provision of Order 2 rule 2 (2) (c) of the High Court Rules. I hold this viewpoint in the sense that it filed the written statement on oath of one witness, Favour Ekpo, but failed to front-load that of Dr, Yemi Ajayi. That qualifies as substantial compliance with that provision, not total violation of it. I am fortified in my view by the provision of order 39 rule 12(1) and (2) of the selfsame High Court Rules which gives the appellant the latitude or licence to still call Dr. Yemi Ajayi as a witness with the leave of court and filing of his deposition on court. Besides, it is the appellant’s funeral if it fails to call Dr. Yemi Ajayi as a witness in that its case will fail. The appellant’s failure to front-load Dr. Yemi Ajayi’s deposition on oath has not, by any stretch of imagination, inflicted any injustice on the respondents.
For a good measure, the provision of Order 4 rule 1 (1) of the High Court Rules was on hand to the appellant.
The saving provision states:
”(1) Where in beginning or purporting to begin any proceedings, or at any state in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treaded, will not nullify the proceedings, or any document, judgment or order therein”
Incontestably, this all-encompassing saving provision bestowns on the lower court the discretionary power to treat a wide range of failure to conform to the High Court Rules curable irregularity, see Famfa Oil Ltd. v. A. G., Fed. (2003) 18 NWLR (Pt.852) 453.
Startlingly, the lower court, with all due regard, treated the provision, laden with justice, with the ignominy it does not deserve at all. It even put the operation of the provision in abeyance waiting to be activated by a formal application. The lower court, perhaps, forgot that it is a provision of a subsidiary legislation- which is in the breash of a judex to be utilized it any time the need arises. In my view, what the lower court did is a quintessence of technical justice, not substantial justice. Technicality, with its offspring technical justice, had been annihilated and buried in the Nigerian legal system. I will not be one of those rooting for its resurrection.
At any rate, the law is that where obedience to rules of court is diametrically opposed to the interest of justice, a court of law is enjoined to lean towards the latter in order to avoid the inviting temptation of worshiping the former in sheepish manner. In this wise, I drum up support from the case of Duke v. Akpabuyo L.G. (2005) 19 NWLR (Pt 959) 130 at 142-143, wherein Pats-Acholonu, JSC, of the blessed memory, stated:
”It is important to understand the nature of rules of the court. Our courts have held that rules of the court are meant to be obeyed. They provide supports in the administration of justice, but it must be understood that being rules or regulations to assist the court in its effort to determine issues or controversies before the court, care must be exercised in not elevating them to the status of a statute as they are subsidiary instruments. They are to be used by the court to discover justice and not to choke, throttle or asphyxiate justice. They are not sine qua non in the just determination of a case and therefore not immutable”.
See, also, U.T.C. (Nig.) Ltd v. Pamotei (1989) 2 NWLR (Pt.103) 244; Katto v. CBN (Supra); Opia v. Ibru (Supra).
It is on account of the foregoing, that I am very loath to endorse the finding of the lower court, on page 183 line 11-13 of the record, that ”…the writ with such omissions and non compliance as the one at hand is defective and it is incompetent and the court lacks the jurisdiction to entertain an (sic) it.” The finding is replete with technical justice. It is out of tune with the law on substantial justice even as the omission does not erode its jurisdiction to adjudicate over the appellant’s action. All in all, I resolve the issue (four) in favor of
Lastly, I will deal with issue five. The gravamen or thrust of the issue is that the decision of the lower court was perverse. A decision of a court is perverse when: it runs counter to the evidence and pleadings before it, a court takes into account matters which ought not to be taken into consideration, a court shuts its eyes to the evidence or the decision has occasioned a miscarriage of justice, see Onyekwelu v. Elf Pet. (Nig.) Ltd. (2009) 5 NWLR (Pt.1133) 181; Osuji v. Ekeocha (2009) 16 NWLR (Pt.1166) 81; Ekeagwu v. Nigerian Army (2010) 16 NWLR (Pt.1270) 217; Joseph v. State (2011) 16 NWLR (Pt.1273) 226.
I have juxtaposed the decision of the lower court with these all-embracing connotations of Perversion. Taking into account my findings and conclusions in the other four issues just resolved, it seems clear to me that the judgment of the lower court is mired in one or two of the vices of perverse decision aforementioned. The lower court, with utmost respect, took into account extraneous matters which snowballed into precipitating miscarriage of justice to the appellant. I dare say, the judgment is a perverse decision par excellence, In short, I resolve the issue (five) in favour of the appellant.
All in all, the above analyses represent my viewpoints on the five issues for determination of the appeal in satisfaction of the cardinal principle of law that I must resolve all the issues in any appeal being a court lower than the Supreme Court. They are for the benefit of the apex court in the event of appeal to it.
On the whole, I must place on record, pronto, that even though I resolved all the five issues in favour of the appellant, alas, it has, nonetheless, merely scored a pyrrhic victory in this appeal. The reason is not farfetched. I had, at the dawn of this judgment, under the resolution of the preliminary objection, found and declared the entire appeal incompetent for want of signature and reliefs in the notice of appeal. By those finding and declaration, which firmly stand for lack of extenuating circumstances, my jurisdiction to entertain the appeal is denuded. In consequence, the appellant’s appeal, for the avoidance of doubt, is hereby struck out.
The parties shall bear their respective costs of prosecuting and defending the ill-fated appeal.
IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance the illuminating judgment of my learned brother, Ogbuinya JCA, and am Appellant’s appeal is incompetent same having been afflicted with the virus of their Notice of Appeal not being signed either by the Appellant or his legal representative and by the Appellant not claiming any relief; contrary to Order 6 Rule 2(4) and 2(1) of the Court of Appeal Rules 2011.
The authorities of Omega Bank (Nigeria) Plc vs. O.B.C. Ltd (2005) 8 NWLR (Pt.607) 362 at 371; A.G. Abia State v. Agbarariya (1999) 6 NWLR (Pt.607) 262 at 371. Tsalibawa v. Habiba (1991) 2 NWLR (Pt.174) 461 at 475 – 477; ably cited by the Learned Counsel for the respondents have settled the current position of the Law beyond peradventure that an unsigned document is worthless and in this case; the Appellant’s notice of Appeal could not have invoked the jurisdiction of this court to entertain his grouse against the judgment of the lower court.
I agree also with my Lord that the scenario herein is even worse that those in Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521 and Oketade v. Adewunmi (2010) 8 NWLR (Pt.1195) 63 per Onnoghen and Niki Tobi JJSC; who declared Notices of Appeal signed in the names of the firms of the respective Appellants’ solicitors as incompetent for breaching section 2(1) and 24 of the Legal Practitioners Act; in that neither the Appellant nor his legal representative or even the firm of his solicitors signed his Notice of Appeal. Having taken the current state of our law into consideration, I also endorse the conclusion of my Lord Ogbuinya JCA, that this court lacks the jurisdiction to entertain the Appeal more particularly as there is no relief upon which appeal is predicated. In line with the dictum of Karibi-Whyte, JSC in Agu v. Odofin (1992) 3 SCNJ 161 at 173 and other authorities like Fayemi v. Oni (supra); Uzoukwu v. Ezeonu (supra); Agbi v. Ogbe (2006) 11 NWLR (Pt.990) 65, Eagle Super Pack (Nigeria) Ltd vs. ACB Plc (2006) 19 NWLR (Pt. 1013) 20 and Veepee Industries Ltd vs. Cocoa Industries Ltd (2008) 13 NWLR (Pt. 1105) 486; the non-inclusion of any relief(s) in the Notice of Appeal is a fundamental vice which went to the substratum of the appeal.
By these omission or commission of not signing the Notice of Appeal and including the relief(s) sought, the bottom of the Appeal is knocked off and the Notice of Appeal is like an empty bag that cannot stand.
It is for the above reasons and the fuller reasons articulated in the judgment of my noble brother that I also, shall sustain the preliminary objection and make an order striking out the appeal. Just like the penultimate court that we are, my lord was minded to delve into the substantive appeal perchance we are eventually overruled by the apex court on further appeal on the incompetence of the Appeal.
On Issue One; I am tandem with my Lord that the essential ingredients for the invocation of the shield of the legal doctrine of Res judicata in favour of the Respondent were not complete for the law is trite as settled by authorities ancient and modern that, for the doctrine to apply, there must be contemporaneous and concomitant existence of same parties, issues and subject matter in the case upon which the plea is predicated and the issues and subject matter in the previous suit must have been finally determined by a court of competent jurisdiction. See Alase & Ors vs. Ulu & Ors (1965) NWLR 66 S.C.; Yoye vs.Olubode (1974) 10 S.C. 209; Kuusu vs. Udoni (1990) 1 NWLR 421; Odua v. Nwanze (1934) 2 WACA 98; Chiekwe vs. Obiora (1960) ESC 258; Abogunde vs. Lanlokun (1958) W.R.N.L.R. 69 see also Alapo vs. Agbokere (2010) 1 NWLR (Pt. 1198) 30.
I agree therefore that the only ingredient that was shown by the respondent was that the previous suit was decided by a court of competent jurisdiction.
As for the other issues which were resolved in favour of Appellants, I have no hesitation in agreeing with the conclusions reached by my learned brother and I have nothing more to add.
I am minded however not to go into details with the hind side of the reality of the situation that the Appellant has merely scored an empty victory which is like a tale told by an idiot full of sound and fury but signifying nothing; in view of the incompetence of the Notice of Appeal, which is the fulcrum and jugular vein of the appeal herein.
I also shall strike out same and abide by the orders as to costs.
ITA G. MBABA, J.C.A.: I have had the advantage of taking part in the hearing of this Appeal and being privy to the decision just pronounced by my learned brother OBANDE OGBUINYA JCA. I agree with the reasoning and conclusions in the lead judgment, that the preliminary objection is meritorious. Accordingly, the same is upheld, as the Appeal is incompetent and bound to be struck out, and is hereby struck out.
Parties to bear their respective costs.
Appearances
Chief P.A.O. Olorunnisola, SAN (with him, I. R. Odunuga, Esq.)For Appellant
AND
Dr. J. O. Olatoke (with him, O. W. Akanbi, Esq., John Dada, Esq., A. K. Uzamot, Esq., and O.O Aweda, Esq.)For Respondent
