PRINCE LOUIS MESEMBE ASIKPO & ANOR v. MR. SAMUEL GEORGE & ANOR (2013)

PRINCE LOUIS MESEMBE ASIKPO & ANOR v. MR. SAMUEL GEORGE & ANOR

(2013)LCN/6471(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of October, 2013

CA/C/32/2011

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1) PRINCE LOUIS MESEMBE ASIKPO (for himself and on behalf of the family of late Mr. Gregory Mesembe Asikpo)
2) CHIEF EKPENYONG ASUQUO HOGAN Appellant(s)

AND

1) MR. SAMUEL GEORGE
2) OBI ONYEKA Respondent(s)

RATIO

THE PRIMARY PURPOSE OF A PRELIMINARY OBJECTION

The primary purpose of the objection provided for in the provisions if successful, is to terminate or determine the hearing of an appeal in limine at the stage or time it was raised either partially or in toto. See Ogunmola v Kida (2002) FWLR (86) 559 at 568; NPASF v Fasel Services Ltd. (2002) FWLR (97) 719 at 734 – 5; Amgbare v Sylva (2008) ALL FWLR (419) 576 at 579; Okoi v Ibiang (2002) 10 NWLR (776) 455; Okonkwo v UBA (2011) 7 MJSC, 1 at 12. PER GARBA, J.C.A.

WHETHER OR NOT PRELIMINARY OBJECTIONS ARE ONLY FILED AGAINST THE HEARING OF AN APPEAL AND NOT AGAINST ONE OR MORE GROUNDS OF APPEAL

WHETHER OR NOT ISSUES FOR DETERMINATION MUST ARISE FROM GROUNDS OF THE APPEAL

The law in the appellate courts is now elementary that for an issue raised in an appeal to be competent for consideration in the determination of the appeal, it must arise from the grounds of the appeal. Where an issue is not shown to be related to, to have arisen from or be derivable from any of the valid grounds of an appeal, it becomes incompetent and liable to be struck out of the appeal for being irrelevant and of no moment in the determination of the appeal. See Reg. Trustees of the Apostolic Faith Mission v Umo Bassey James (1987) 7 SCNJ, 167; Modupe v The State (1988) 9 SCNJ, 1; Ogbuanyinya v Okudo (No. 2) (90) 21 NSCL (Pt. 3) 44; Aja v Okoro (1991) 7 NWLR (203) 260. PER GARBA, J.C.A.

WHETHER OR NOT AN APPELLANT CAN RAISE AND ARGUE FRESH ISSUES IN AN APPEAL

Since the issue is clearly not one challenging or raising question as to the jurisdiction of the High Court to entertain or adjudicate over the matter, the law is common knowledge that before an Appellant can validly raise and argue a fresh or new issue in an appeal which was not raised before and pronounced on by a lower court, the leave of the court must first be sought and obtained by him. In the absence of such prior leave as rightly submitted by the learned counsel for the Respondents, the new or fresh issue raised in the brief would be incompetent and liable to be struck out for being irrelevant having not arisen from the decision appealed against. See Bankole v Pelu (1991) 8 NWLR (211) 523; Okonkwo v Ogbogu (1996) 5 NWLR (449) 420; Koya v U.S.A. Ltd. (1997) 1 NWLR (481) 251; Owie v Ighiwi (2005) 1 SC (Pt.ii) 16, (05) 5 NWLR (917) 184; Akintaro v Elgungbohun (2007) 9 NWLR (1038) 103; Elugbe v Omokhafe (2004) 18 NWLR (905) 319. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Cross River State, sitting at Calabar in Suit No. HC/389/2004 contained in the judgment delivered on the 27/7/2010. Appellants as plaintiffs in the said suit, had claimed for declaration of title to land against the Respondents in the following terms:
a) A declaration that by virtue of the Deed of Lease between Chief Ekpenyong Asuquo Hogan as the administrator of the estate of late Obong Edem Ekpenyong Ephraim Adam II and Mr. Gregory Mesemberr Asikp the 1st plaintiff is the beneficial owner of all that piece/parcel of land lying and situate at Edem Ekpenyong Street, Calabar and more particularly described and delineated in Survey Plan No. TJ. CR931 and as such entitled to the grant of a certificate of occupancy thereon.
b) A declaration that by the virtue of the Enrolled Order of this Honourable Court made on the 21st day of February, 2001 recalling the probate granted, in favour of Chief Joseph Effiong Adam Ephraim on the basis of the FORGED WILL OF OBONG EDEM EKPENYONG EPHRAIM ADAM II, all transaction and agreements entered into by the said Chief Joseph Effiom Adam Ephraim including the lease Agreement of 1st January, 1978 in favour of one Mrs. Eyamba George, purportedly as administrator of the estate of Obong Edem Ekpenyong Ephraim Adam II are null and void and of no effect whatsoever.
c) An order setting aside the aforesaid Lease Agreement dated 1st January, 1978 between Chief Joseph Effiom Adam Ephraim and Mrs. Eyamba George, the same having been predicated on fraud and forgery.
d) An order of perpetual injunction restraining the defendants, by themselves, their agents, servants, hirelings and assigns from further trespassing on the plaintiff’s land aforesaid.
e) N5,000,000 damages against the defendants, jointly and severally for trespass to the land, the subject matter of this suit.
The Respondents denied the claims by the Appellants in their statement of defence and so the suit proceeded to trial at the end of which, the High Court in the aforementioned judgment, dismissed the claims by the Appellants. Not satisfied with the dismissal of their case, the Appellants caused a notice of appeal containing two (2) grounds to be filed against the decision, on the 15/9/2010. Due to their brevity and the notice of preliminary objection filed by the learned counsel for the Respondents on the issues raised in the Appellants’ brief, I can afford to set out the grounds as follows:
GROUNDS OF APPEAL
The trial court erred in law when it assumed jurisdiction to set aside the judgment in exhibit 3 tender (sic) in this case, when statutory condition precedent to such an event had not been fulfilled.
Particulars of Error
1) There was no formal application by the defendants i.e. by way of motion or by fresh suit or counter claim as required by the Cross River State Court Civil Procedure Rules of 2008.
2) The failure to fulfill the above statutory conditions precedents robbed the trial court of jurisdiction to set aside the earlier judgment tender as Exhibit 3.
3) The court only has inherent jurisdiction to regard exhibit 3 as a nullity and to set it aside upon application.
Ground 2
The learned trial judge erred in law and fact when it held as follows:-
“Therefore can it be rightly said that the said Chief Joseph Effiom Adam power as an executor who sold the land to 1st defendant’s mother had ceased? I think not. ”
Particulars of Error
1. The 1st defendant did not tender any title document executed by Chief Joseph Effiom Adam in favour of his mother (late Mrs. Eyamba George throughout the trial.
2. A court of competent jurisdiction in Suit No. HC/MSC/228/2000 had set aside the power of the Chief Joseph Effiom Adam from acting as executor of the estate of late Obong Edem Ekpenyong Ephraim Adam II.
3. The 1st plaintiff tender a deed of conveyance made by a beneficiary owner of the estate of late Obong Edem Ekpenyong Ephrain Adam II with his late father Mr. Gregory Mesember Asikpo in respect of the plot of land lying and situate at Edem Ekpenyong Street, Calabar.
4. The parties claims was not about the validity or otherwise of letter of probate or letter of administration in respect of the estate of late Obong Edem Ekpenyong Ephraim Adam II.
In the Appellants’ brief, settled by Ukpong, Eba, Esq. and filed on 23/5/2012 but deemed on the 29/11/2012, the following issues were set out for determination in the appeal-:
1) Whether an executor of the estate of a deceased can transfer title in part of the estate without the concurrence of other co-executors of the estate.
2) Whether the trial judge can set aside a valid order or decision of a court of coordinate jurisdiction without formal application from parties to the proceedings.
The notice of preliminary objection filed by the learned counsel for the Respondents; Mr. Essien H. Andrew, Esq. and argued by him in the Respondent’s brief filed on the 8/1/2013 was premised on the following grounds:-
1) The appellants’ first issue for determination is incompetent because it does not arise from any of the appellants’ two grounds of appeal.
2) The appellants’ first issue for determination which seeks to raise a fresh issue for the first time in this appeal is incompetent because no prior leave was sought or obtained from this court to do so.
In reaction to the notice of preliminary objection and arguments thereon, the learned counsel for the Appellants filed a reply brief on the 12/3/2013.
The notice of preliminary objection was moved and the above briefs adopted by the learned counsel for the parties at the oral hearing of the appeal on the 17/9/2013 with each urging the court to uphold this submissions and decide the appeal in favour of his client.
In line with the requirements of judicial practice, I would consider and decide the preliminary objection first.
Before going into submissions by learned counsel on the merit of the objection, I would consider the provisions of Order 10 Rule 1 of the CAR, 2011 pursuant to which it was brought. The provisions are that:-
“10.1. A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file…” (underling mine for emphasis).
These provisions clearly and plainly provide for a preliminary objection to the hearing of an appeal and nothing else or less. They undoubtedly do not provide for or even envisage or contemplate an objection which does not relate to or challenge the hearing of an appeal, but only questions or challenges a ground of an appeal out of more or an issue raised out of such a ground, without which the appeal can still be heard. The objection provided for by these provision is one which questions or challenges the competence of an appeal and therefore its entire hearing on any recognised ground in law.

An objection which does not challenge the competence of an appeal but only one or some of the grounds or issues raised in the appeal, does not challenge the hearing of the appeal as provided by the provisions but only attacks or complaints about some grounds or issues which even if successful, does not terminate the proceedings or hearing of the appeal. Such an objection does not fall within the provisions of Order 10, Rule 1 above and so are not applicable to it. It is an objection a party (Respondent) is entitled to raise at the hearing in his brief of argument as a point of law to be considered in the determination of the appeal.
Recently in the case of NNPC v Fanfa Oil Ltd. (2012) 5-7 MJSC, 1 at 29, the Supreme Court per Rhodes-Vivour, JSC, had stated:-
“Preliminary objections are only filed against the hearing of an appeal and not against one or more grounds of appeal. If I may add to the above where as in this Appeal the Preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The respondent ought to have filed a Motion on Notice since the preliminary if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal”.
The provisions of Orders 10 Rule 1 above we in pari material with the provisions of the Supreme Court Rules considered by the apex court in the above case and so the principle applies to preliminary objections in appeals before this court. Since apart from the issue (1) being challenged by the Respondents’ preliminary objection, there is another unchallenged issue which is capable of being heard in the appeal, the hearing of the appeal would not have been terminated or settled even if it succeeded. It was therefore inappropriate in the circumstance as it was not envisaged by the provisions of Order 10, Rule 1 or at all by the Rules. However since the Appellants learned counsel has responded to it, I would consider its merit, a non.
The submissions by the learned counsel for the Respondents in the objection are to the effect that the Appellants’ issue (1) does not arise from any of the two (2) grounds on the notice of appeal and so is incompetent relying on Nya v Edem (2005) ALL FWLR (242) 576 and Omotosho v Ojo (2008) FWLR (408) 389. He said in addition, that the Appellants’ counsel is seeking to raise a fresh issue that Chief J.E.A. Ephraim was acting without the consent of his co-executors when he sold the land in dispute in 1978 which was never pleaded before nor considered by the High Court in the judgment appealed against.
Learned counsel submitted that since the appellants’ neither sought for nor obtained the leave of the court to raise the issue, it is legally incompetent, citing Oyeniyi v Adeleke (2009) AFWLR (476) 1902 and INEC v ADC (2009) FWLR (490) 668.
In the Appellants’ Reply brief, it was argued that the Appellants’ notice of preliminary objection did not comply with the provisions of Order 10, Rules 1 and 3 of the Court of Appeal Rules, 2011, which were set out as Order 10 (1)(3) in the brief, and pray that we discountenance it. This appears to be an objection to the preliminary objection of the Respondents. This court in the case of Manson v Halliburton Energy Service Ltd. (2002) 2 NWLR (1018) 21 I had stated that:-
“There is no preliminary objection to a preliminary objection.”
See also Arewa iles Plc v Abdullahi & Brothers Musawa Ltd (1998) 6 NWLR (554) 508; Mobil Prod. Nig. Unltd. v Monokpo (2003) 18 NWLR (852) 346.
In any case, I have adequately addressed the propriety of the Respondent’s objection under Order 10 Rule 1 earlier.
In further submissions in the Reply Brief, learned counsel did not specifically and directly respond to or answer to the point which is that the Issue (1) was not distilled from any of the two (2) grounds on the notice of appeal. He however stated in paragraph 1.7 at page 2 of Reply as follows:-
“1.7. It is our submission that the issue that are (sic) raised by the appellants are issues that ought to have been handled by the trial Judge. The law is clearly established that where a court or trial fails to make findings on material and important issues of fact by brushing them aside or approaches the evidence called by the parties wrongly (as it is in the instant case) the appellate court will have no alternative than to act accordingly as the circumstances dictate. See Joseph Samy & Sons Ltd. v Agbonlahor (2012) 25 WRN 61.”
This is a tacit admission by learned counsel that the issue (1) in particular, was not considered by the High Court in the judgment appealed against and says it is the duty of the court to do consider it now.
Now be that as it may, looking calmly at the two (2) grounds on the Appellants’ notice of appeal and reading the issue (1) raised by the learned counsel for the Appellants, it is prima facie that the issue is not derivable from any of the grounds of appeal. Learned counsel for the Respondent is right that the Appellants’ ground 1 is a complaint against the decision by the High Court to set aside the ex parte order in Exh. 3 while ground 2 complains against the finding by the High Court that the authority of Chief Ephraim’s authority as an executor was not affected by Exh. 3. Issue (1) as formulated by the learned counsel for the Appellants clearly has no connection to or relation with the complaints in the two grounds of appeal. The law in the appellate courts is now elementary that for an issue raised in an appeal to be competent for consideration in the determination of the appeal, it must arise from the grounds of the appeal. Where an issue is not shown to be related to, to have arisen from or be derivable from any of the valid grounds of an appeal, it becomes incompetent and liable to be struck out of the appeal for being irrelevant and of no moment in the determination of the appeal. See Reg. Trustees of the Apostolic Faith Mission v Umo Bassey James (1987) 7 SCNJ, 167; Modupe v The State (1988) 9 SCNJ, 1; Ogbuanyinya v Okudo (No. 2) (90) 21 NSCL (Pt. 3) 44; Aja v Okoro (1991) 7 NWLR (203) 260. For not arising from any of the two (2) grounds of appeal contained on the Appellants’ notice of appeal, the issue (2) formulated by the learned counsel for the Appellants’ above is incompetent and liable to be struck out accordingly.
Furthermore, as an issue which the learned counsel has tacitly admitted in paragraph 1.7 of the Appellants’ Reply brief as stated earlier, not to have been considered by the High Court, it is being raised for the first time here as a new or fresh issue in the appeal. Since the issue is clearly not one challenging or raising question as to the jurisdiction of the High Court to entertain or adjudicate over the matter, the law is common knowledge that before an Appellant can validly raise and argue a fresh or new issue in an appeal which was not raised before and pronounced on by a lower court, the leave of the court must first be sought and obtained by him. In the absence of such prior leave as rightly submitted by the learned counsel for the Respondents, the new or fresh issue raised in the brief would be incompetent and liable to be struck out for being irrelevant having not arisen from the decision appealed against. See Bankole v Pelu (1991) 8 NWLR (211) 523; Okonkwo v Ogbogu (1996) 5 NWLR (449) 420; Koya v U.S.A. Ltd. (1997) 1 NWLR (481) 251; Owie v Ighiwi (2005) 1 SC (Pt.ii) 16, (05) 5 NWLR (917) 184; Akintaro v Elgungbohun (2007) 9 NWLR (1038) 103; Elugbe v Omokhafe (2004) 18 NWLR (905) 319.

The court can only have the requisite jurisdiction to consider and decide an issue not raised before and pronounced upon by a trial lower court, when such new or fresh issue was properly placed before it by due process of the law requiring the prior leave of the court to raise same in an appeal. Parties are not at liberty, according to their whims, to ignore or disregard the requirements of the law in the conduct of their cases in any court of law. The conduct of matters before or in all the superior courts of record are guided by their Rules of practice and procedure as well as established principles of law in judicial practice. Diligence requires that the parties shall at times ensure compliance with such Rules and established principles of law in all processes they file over which they desire the court to assume jurisdiction to adjudicate.
For the above reasons, the Appellants’ issue (1) for not arising from any of the grounds of appeal and absence of the prior leave of the court to raise it as a new or fresh issue, is incompetent and liable to be struck out. It is stuck out along with the submissions by the learned counsel on it as contained in the Appellants’ brief.
The Appellants’ issue (2) which the learned counsel for the Appellants did not relate or indicate from which of the grounds it was distilled, in his formulation, clearly arises from the ground (1) on the notice of appeal. It is therefore a valid and incompetent issue for consideration in the appeal.
The learned counsel for the Respondents had formulated his own issue which like his learned friend for the Appellants, he did not indicate from which of the grounds of the appeal it was distilled as required by diligent practice of brief writing. It is as follows:
‘WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO DISMISS THE APPELLANTS’ CLAIMS GIVEN THE TOTALITY OF THE EVIDENCE ADDUCED AT THE TRIAL.
Let me point out that the grounds of the Appellants’ notice of appeal complain about and attack or challenge specific findings in law and law and facts made by the High Court while the tenor of the Respondents’ issue is omnibus and so cannot be said to have derived from them specifically and precisely. For that reason, I intend to determine the appeal on the Appellants’ issue (2) since the Respondents’ counsel has addressed it in the argument of his own issue.
The submissions by the learned counsel for the Appellants on the issue are that the High Court had no power to reverse, vary or alter the order or decision of another court of co-ordinate jurisdiction except on the issue of jurisdiction, relying on SPDC Ltd. v Edamkue (2009) 7 MJSC (Pt.1) 213 at 214; Akporue v Okei (1973) 12 SC, 137 and Orewere v Abiagbu (1973) 3 ECSLR, 1164 at 1167. He said Exh. 3 was an enrolled order of the High Court dated the 21/2/2001 in Suit No. HC/MC/228/2000 which was served on the parties therein and which recalled the probate granted Chief Adam. It was his contention that the said order can only be set aside by a court of co-ordinate jurisdiction if provided for by a statute or an appellate court on appeal. The cases of Wempay Nig. Ltd. v Balogun (1986) 3 NWLR (28) 324 at 339 and Okotodudu v Ajuetami (1987) NWLR, 282 were cited and it was further argued by counsel that since there was no formal application to set aside the decision in Exh. 3 or a fresh suit to set it aside on ground of fraud, the High Court was wrong in law to have set it aside thereby affecting the decision as to who between the Appellants and the Respondents had valid title to the land in dispute. He urged the court to set aside the decision by the High Court on Exh. 3 and rely on it to confirm that the Appellant had valid title transferred to him by the holder of the letter of administration of the estate of the late Obong Adam Ephraim. Reliance was placed on Mufutau v Mudeen (2009) 3 WRN, 155 at 167 to further submit that it is settled law that where a court of co-ordinate jurisdiction has stated the law in relation to an issue in dispute by way of decision or order, the decision will bind not only lower courts but other co-ordinate courts.
In conclusion, we were urged to allow the appeal, set aside judgment of the High Court and grant all the prayers of the Appellant “as per its writ of summons and statement of claim filed on 2/12/2004 in the lower court”
For the Respondents, the submissions on the issue are that the High Court did not set aside Exh. 3 but merely said in its judgment that the order was made without jurisdiction and it was right to do so because any court before which a previous judgment or order was tendered is entitled to determine whether the judgment or order was made by a court of competent jurisdiction before acting on it. He relied on Ajao v Alao (1986) 5 NWLR (45) 802 at 820 and submitted that the Respondents had pleaded and gave particulars of jurisdiction by the court that made the ex parte order in Exh. 3, in their paragraph 11 of the statement of defence and led evidence to support it. It was argued that the High Court was entitled to consider and determine the validity of Exh. 3, as an order made by a court of competent jurisdiction. According to learned counsel, the High Court was right in its conclusion that Exhibit 3 is ex facie incompetent because it had no named applicant or respondent since the “Estate of Edem Ekpenyong Ephraim Adam II’ named as the applicant in the order is not a legal persona who can sue or be sued. That only an administrator or executor of an estate can sue or be sued on behalf of the estate as the estate itself has no legal persona and cannot sue or be sued, relying on the Administrator of the Estate of Sani Abacha v Eke-Spiff (2009) ALL FWLR (467) 1. In further argument, learned counsel said that in the absence of an applicant known to law, the High Court had no jurisdiction to grant the ex part order in Exhibit 3 to a non juristic person, citing Maersk Line v Addide Invest Ltd. (2002) FWLR (125) 608. In addition, that Exh. 3 was perpetual since no time was limited therein and the law is settled that courts do not have jurisdiction to make final perpetual orders by way of ex parte applications on the authority of Omon v Omon (2005) ALL FWLR (242) 535. Furthermore, that since Exh. 3 was made against the executors who were not made parties or given the opportunity to be heard particularly in respect of Charge No. C/26c/84, Exh. 2, which had been set aside vide Exh. 6, it violated the principle of fair hearing. Green v Green (2001) FWLR (76) 795 and Ogbonda v Nkanginieme (2010) ALL FWLR (502) 1034.
In the alternative, it was submitted by counsel that even if it was not set aside, Exh. 3 took effect from the date it was made in line with Section 50(1) and (2)(c) of the Evidence Act, 1990, applicable to it, did not have retrospective effect to vitiate actions taken by the executors such as the conveyance of the land in dispute in 1978 by Chief Ephraim as an executor, to the 1st Respondent’s mother. In conclusion, he urged us to dismiss the appeal and affirm the decision of the High Court.
The learned counsel is right that ordinarily, a court has no jurisdiction to sit on appeal over the decision or judgment of another court of co-ordinate jurisdiction and in the process, set it aside in the absence of express statutory provisions vesting it with the power to do so. See Okoye v. N.C. & F Co. Ltd. (1990) 6 NWLR (199) 501; SPDC Ltd. v Edamkue (supra).
Exhibit 3 about which the Appellants complain in the issue is at page 189 of the record of appeal. It is a copy of “ENROLMENT OF ORDER” in suit No. HC/MSC/228/2000 before the High Court of Cross River State, sitting at Calabar, certified on the 12/5/04. The date the order was made was the 21/2/2001.
It is expedient to set out the contents of the order in full:
IT IS HEREBY ORDERED AS FOLLOWS:
That the Application RECALLING THE PROBATE granted in favour of the Executors as appointed upon the last will of EDEM EKPENYONG EPHRAIM ADAM II same being IPSO JURE invalidated by the judgment in Charge No. C/26c/84 SHALL BE AND IS HEREBY GRANTED as prayed.

ISSUED AT CALABAR UNDER THE SEAL OF COURT AND THE HAND OF PRESIDING JUDGE. THIS WEDNESDAY THE 21ST DAY OF FEBRUARY, 2001.

SGD:
(OBO E. ARCHTBONG)
PRINCIPAL REGISTRAR.

Briefly, the order recalled the probate granted the executors of the last will of Edem Ekpenyong Ephraim Adam II for being invalidated by the judgment in Charge No. C/26c/84. The judgment in Charge No. C/26c/84 was Exh. 2 at the trial and is at page 171 – 179 again, at pp 180 – 188 of the record of the appeal with The State v Joseph Effiom Adam Ephraim as parties therein
The question that arises now is whether the High Court in the judgment appealed against had set aside Exh. 3 as stated by the learned counsel for the Appellants. The judgment of the High Court is at pages 144 – 165 of the record of appeal. The finding which relates to Exhibit 3 is at page 163 – 164 as follows:
‘The plaintiff’s counsel had submitted that the said Chief Joseph Effiom Adam was convicted for forging exhibit 8, but the said conviction was set aside on appeal by the course of appeal vide exhibit 6, where at page 7 , the Court of Appeal held inter alia………….
There is no independent evidence on record that the appellant forged the testators signature in exhibit 1. As a matter of fact there is no evidence that the testators signature was a forgery.”
Therefore can it be rightly said that the said Chief Joseph Effiom Adam’s power as an executor who sold the land to 1st defendant’s mother had ceased? I think not.
There is also the issue of exhibit 3, canvassed by the plaintiff’s counsel i.e. that the probate granted Chief Joseph Effiom Adam II was recalled leased on the judgment that convicted the said Chief for forgery of the will, i.e. exhibit 8, but the said judgment having been set aside, can exhibit 3 still stand? I have my doubts. Counsel had rightly submitted that a court of coordinate jurisdiction cannot set aside a judgment or order of another court of the same jurisdiction which principle had been modified by the Supreme Court in the recent case of SHELL V EDAMKUE (2009) 39 MSCOR 597 at 604 H.6, held-
“……I am aware and concede and this is also settled, that no judge, can or is entitled to reverse, vary or alter the order or decision of and the judge of coordinate jurisdiction except on issue of jurisdiction.”
Defendants counsel had also canvassed several reasons why exhibit ‘3’, should not stand, and I agree with him.”
Can it seriously be argued that the above statement by the High Court amounted to an order setting aside Exhibit 3? The phrase “set aside” in relation to a judgment, decision or order of a court was defined by this court in the case of Emenike v Orji (2008) LPELR, 4103,to mean, “to annul or vacate judgment or order.” This is the Black’s Law Dictionary, 8th Edition definition stated by the court.
In Oxford Advanced Learners Dictionary of Current English, 5th Edition, the words “set aside” in respect of an order, decision or a judgment by a court of law were defined as “to state that a decision, sentence, etc, is not legally valid.”
Clearly, by the above findings, the High Court did not annul or vacate the order in Exh. 3 but only stated the indisputable legal and judicial effect of the judgment of this court quashing the conviction in the charge No. C/26c/84 on which it was based or premised. The decision by this court quashing the conviction in the Charge was evidence before the High Court as Exh. 6 at pages 199 – 207 of the record of appeal, which it was not only entitled to, but had a duty to consider and pronounce on in the determination of the case presented by the parties before it. The pronouncement above on the effect of Exh. 6 on Exh. 3 in the determination of the claims by the Appellants did not amount to an order annulling or vacating the said Exhibit, but rather that the Exhibit was overtaken by Exh. 6 by operation of the law. The High Court was entitled and has the right and power to do so. Adamu v State (1991) 4 NWLR (187) 530; M.T.A & Sons Ltd. v F.H.A. (1991) 8 NWLR (209) 295; Anzaku v Gov. Nasarawa State (2006) ALL FWLR (303) 308.
I am therefore in agreement with the learned counsel for the Respondents that the High Court did not set aside the order in Exh. 3 but simply assessed it as part of the evidence adduced by the parties in the case and made a pronouncement on its probative worth or value in the claims made by the Appellants.
In the result, I find no merit in the Appellants submissions on the issue which is resolved against them accordingly. On the whole, the appeal lacks merit and is dismissed by me.
There shall be N50,000.00 costs in favour of the Respondents to be paid by the Appellants.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba. I am in total agreement with his reasoning and conclusions contained therein. I agree that the appeal is unmeritorious and ought to be dismissed. I dismiss it and abide by all the consequential orders in the lead judgment.

ONYEKACHI A. OTISI, J.C.A.: I read in advance the Judgment just delivered by my learned Brother, Mohammed Lawal Garba JCA. The issues raised in this appeal have been completely addressed by my learned brother. I am in agreement with his reasoning and conclusion; and, also dismiss the appeal.
I abide by the Orders made in the lead Judgment.

Appearances

Ukpong Eba with E. DavidFor Appellant

AND

Respnodents counsel absentFor Respondent