THEODORE EMMANUEL CHARLES OWOO & ORS v. MRS. UMO ASUQUO EDET & ORS (2013)

THEODORE EMMANUEL CHARLES OWOO & ORS v. MRS. UMO ASUQUO EDET & ORS

(2013)LCN/6418(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of July, 2013

CA/C/199/2012

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. THEODORE EMMANUEL CHARLES OWOO (For himself and as Administrator of the Estate of Late Emmanuel Charles Dennett-Owoo)
2. ARCHIBONG EMMANUEL CHARLES OWOO
3. CHARLES EMMANUEL CHARLES OWOO
4. JOSEPH EMMANUEL CHARLES OWOO Appellant(s)

AND

1. MRS. UMO ASUQUO EDET
2. THE DEPUTY SHERIFF, HIGH COURT, CROSS RIVER STATE Respondent(s)

RATIO

THE ENFORCEMENT OF THE DECISIONS OF THE COURT OF APPEAL

With respect due to the High Court, even if it did not “know of rules excluding the Court of Appeal from enforcing its own judgment”, it is presumed to know and is legally bound by the provisions of section 287(2) of the Constitution of Federal Republic of Nigeria, 1999 (as altered) which provide thus:-
“287(2)- The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Court of Appeal.”
(underlining supplied for emphasis).
These provisions are plain, straightforward, unambiguous and “clear as crystal” and so require no interpolations in judicial interpretation. In brief, by the employment of the word “shall”, the provisions impose a mandatory duty, obligation and responsibility, thereby expressly excluding any notion of an option or discretion, on all authorities and persons in Nigeria, and in the underlined part, on courts with subordinate jurisdiction to the Court of Appeal, to enforce the decisions of the Court of Appeal.

In the judicial hierarchy of the courts established by the Constitution itself for Nigeria, the High Court of a State which is what the High Court of Cross River State is, is a court with subordinate jurisdiction to that of the Court of Appeal, to which the above provisions apply. Because by virtue of the express and unambiguous provisions of Section 287(2), a High Court has no constitutional discretion option or choice but enforce the decision of the Court of Appeal, the High Court of Cross River lacked the constitutional vires, power or authority, howsoever and whatsoever to refuse, fail, omit, neglect or decline in whatever manner to do so. See Ogboru v Ibori (2005) 15 NWLR (942) 319; Adigun v Attorney-General, Oyo State (No.2) (87) 2 NWLR (265) 275; Onuaguluchi v Ndu (2000) 11 NWLR (679).

WHETHER OR NOT THE PROPER ORDER OF A COURT IS TO STRIKE OUT A MATTER WHERE IT LACKS JURISDICTION TO ADJUDICATE ON IT

Generally, the law is that where a court makes a finding in a matter that it lacks the requisite jurisdiction for whatever reason, to adjudicate or entertain the matter, the appropriate and proper order to make, is one striking out the matter. In the case of NDIC v CBN (2002) 7 NWLR (706) at 300, it was held by the Supreme Court that where a court makes a finding upholding an objection that it has no jurisdiction to adjudicate or entertain a case, the proper order to make is one striking out the case. See also Okoye v N.C. & F.C. (1991) 6 NWLR (199) 501; CBN v Katto (1994) 4 NWLR (339) 446; Olorode v Oyebi (1984) 5 SC, 1; Tapo v Sunmonu (1987) 3 NWLR (58) 34; Fasakin Foods v Shosanya (2006) 10 NWLR (987) 126 at 149. In the case of Okeke v Modu (1996) 9 NWLR (470) 121 at 127,“striking out “was defined to mean” deposing of an action or application not on the merit.” The effect of striking out an action or application is to remove the action or application from the cause list albeit, temporarily and not finally, of the court. However, in respect of an order by a court striking out an action on the ground that it lacks the requisite jurisdiction to adjudicate or entertain it, is one which has the effect of finality, subject only to an appeal, as far as that court is concerned. Once a court rules or finds and holds that it lacks the jurisdiction to adjudicate over or entertain a case before it, then the only power and authority it retains in the matter is the inherent one to make the consequential order striking out the case from its cause list. Since it lacks the jurisdiction to adjudicate in the case, it cannot after so holding turn around under any pre, to purport to consider and determine the merit of the case for that in law, would be an exercise in futility, as such a step would be void abnitio on the ground of want of jurisdiction. See Attorney-General, Lagos State v Dosunumu (2009) 3 NWLR (111) 552; Ttza v Bigha (2005) 15 NWLR (949) 616.
There can be no hearing on the merit when a court rules that it lacks the jurisdiction to adjudicate or entertain a case. For the above, the High Court rightly made the order striking out the Appellants’ motion when it held that it lacked the jurisdiction to entertain it (although erroneously). PER GARBA, J.C.A.

THE MEANING OF WHEN A COURT IS SAID TO BE FUNCTUS OFFICIO

In the case of Dingyadi v INEC (2011) 4 MJSC, 1 at 47, the Supreme had stated when a court is in law said to be functus officio in a case. This was what the apex court said:-
“A court is said to be functus officio in respect of a matter if the court has fulfilled or accomplished its function in respect of that matter and therefore lack the potency to review, re-open or revisit the matter. Thus once a court delivers its judgment on a matter, it cannot revisit or review or set aside the said judgment except under certain conditions.”
In the premises of the above statement of the law by the apex court (the judicial oracle in Nigeria) a court is functus in respect of a case when it delivers it judgment therein and lacks the power to reopen, revisit or set aside any issue decided therein or any part of the judgment. PER GARBA, J.C.A.

INTERPRETATION OF SECTION 15 OF THE COURT OF APPEAL ACT CAP C36, LAWS OF THE FEDERATION OF NIGERIA

The learned counsel for the Appellants has invited us to invoke the provisions of section 15 of the Court of Appeal Act, Cap C36, Laws of the Federation of Nigeria (LFN) to- decide the motion filed on the 22nd November, 2011. The provisions of the section are as follows.
“15. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whore proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court or, in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction. “
The powers vested in the court by these provisions are in general and wide extent in the sense that they clothe the court with full jurisdiction of a trial or lower court over the proceedings subject of an appeal before it as if such proceedings had been instituted in the court as a court of first instance. In appropriate cases, therefore the court would have full jurisdiction to do what the court of 1st instance or lower court had the jurisdiction to do in proceedings from which an appeal emanated. However, the provisions are not to be routinely invoked as a matter of course simply because an invitation to do so was made by a party to an appeal. In the case of Ezeigwe v Nwawulu (2010) 4 NWLR (1183) 137 at 203 – 4, the Supreme Court per Onnoghen, JSC in the lead judgment had held that:-
“In interpreting the above provision, this court has, in the case of Obi v INEC (2007) 1 NWLR (Pt. 1046) 560; Amaechi v INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju v Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba v INEC (2008) 18 NWLR (P1.1119) 489 stated that for the provision to apply, the following conditions must exist, to wit:-
“a) that the lower or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it;
b) that the real issue raised by the claim of the appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal;
c) that all necessary materials must be available to the court for consideration
d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and
e) that the injustice or hardship that will follow if the case is remitted to the court below must be clearly manifest.”PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): On the 25/3/2011, this court had in appeal No. CA/C/39/2010 from the decision of the High Court of Cross River State, Calabar in Suit No. HC/54/2007, awarded damages of Three Million and Fifty Naira (N3,000,050.00) against the Appellants and in favour of the 1st Respondent. Pursuant to the said award of damages, the 1st Respondent applied for and a writ of fifae was issued by the High Court against the movable property of the Appellants on the 27/6/2011. Appellants’ property were attached on the 9/11/2011 in execution of the writ of fifae and in reaction, the Appellants filed a motion before the High Court on the 22/11/2011 praying that the execution levied, be set aside primarily on the grounds that they were not served with the writ of fifae before the execution and it was obtained by gross misrepresentation of facts. The 1st Respondent opposed the Appellants’ motion and also raised a preliminary objection on the jurisdiction of the High Court to entertain it, which was upheld in the ruling delivered on the 17/7/2012. This appeal is against that ruling by the High Court brought vide a Notice and grounds of appeal dated and filed on the 9/8/2012. The three (3) grounds set out on the notice of appeal are brief and as follows:

GROUND NO.1
The learned trial judge erred when she held that the High Court was functus officio when it came to enforcing the judgment of the Court of Appeal.

PARTICULARS OF ERROR
1. This ruling goes against Order 19 Rule 5 of the Court of Appeal Rules 2011 which lays down the procedure for the enforceability of the judgment of either the High Court or Court of Appeal.
2. The High Court, as a matter of practice, enforces the judgment of the Court of Appeal, as was done in the instant case.

GROUND 2
The learned trial judge erred in law when she failed to take into consideration all the issues that were raised before her by the Applicants for determination.

PARTICULARS OF ERROR
1. The Applicants, in urging for the purported execution by the High Court to be set aside, placed before the learned trial judge a plethora of authorities in support of the application. None was considered or analysed
2. The learned trial judge is obliged to give rationes decidendi for either refusing or allowing an application that has been forcefully argued before her by both counsel.
3. The Applicants were thus denied a fair hearing.

GROUND 3
The learned trial judge erred in law and caused a miscarriage in justice when she failed to hear both the application and the preliminary objection.

PARTICULARS OF ERROR
1. It would have been prudent for the learned trial judge to hear both the application of the Applicants to set aside the unlawful execution of judgment and the preliminary objection.

In the Appellants’ brief settled by Charles E. Duke, Esq., of counsel for the Appellants filed on the 9/10/12, the following two (2) issues were listed for determination:-
“1. Whether the High Court is functus officio when it comes to the enforcement of the judgment of the Court of Appeal. Ground 1 of the Notice of Appeal.
2. Whether the learned trial judge considered the weighty submissions of the Appellants supporting the application to set aside the wrongful execution of judgment by the Respondents. Grounds 2 & 3 of the Notice and Ground of Appeal.”

On his part, Mr. Essien H. Andrew, Esq., learned counsel for the 1st Respondent, had submitted issues as follows for decision in the appeal:-
“1. Whether the trial court was right in striking out the appellants’ application for lack of jurisdiction on the ground that it was functus officio. (This issue is distilled from Ground 1 of the Notice and Grounds of Appeal).
2. Whether the learned trial judge was right not to consider the merits of the appellants’ application and if not whether there was any merit in the appellants’ application. (This issue is distilled from Grounds 2 and 3 of the Notice and Grounds of Appeal).”

There is no record that the 2nd Respondent though duly served with all the processes of the appeal, has filed or taken steps to file any process or participate in the appeal.

From the formulation of the issues by the learned counsel, it is clear that their respective Issue 1 is one and the same while Issue 2 of the Respondent appears to be germane and more precise for the – determination of the Appellants’ real grievance against the decision by the High Court than the Appellants’ Issue 2.

For the purpose of deciding the appeal, I intend to use the Appellants’ issue 1, and Respondent’s Issue 2 since both counsel have adequately made submissions on them in their respective briefs.

ISSUE 1
After citing and setting out the provisions of Order 19 Rule 5 of the Court of Appeal Rules, 2011, learned counsel for the Appellants had submitted that the High Court erred to have held that it was functus officio in enforcing the judgment of this court as the judgment had become its own and can enforce it. The cases of Oyefeso v Madam Tola (1968) NMLR, 317 and Anakwenze v Aneke (1985) 6 SC 41 were cited on the submission. According to learned counsel, the High Court ruling that it was functus officio to enforce the judgment of the court was based on technicality rather than substantial justice as enjoined in cases such as Fidelity Bank v Monye (2012) 10 NWLR (1307) 1 at 35 and Duke v Akpabuyo Local Government (2005) 19 NWLR (959) 130 at 144-5. We were urged by him to allow the appeal and hold that the High Court was not functus officio.

On Issue 2, it was submitted by the learned counsel for the Appellants, relying on inter alia Vogt v. Akin-Taylor (2012) 10 NWLR (1307) 76 at 86; S.C.C. Nig. Ltd. v Anya (2012) 9 NWLR (1305) 213 at 226 and UBA v Effiong (2011) 16 NWLR (1272) 84 at 109 – 10, that the High Court had a duty to consider all the issues placed before it by the parties and which it did not do in the Appellants’ motion. He said the failure by the High Court to consider the issues raised in the motion and addresses amounted to a breach the right to fair hearing which caused or occasioned miscarriage of justice to the Appellants. We were then urged by learned counsel to invoke the provisions of Section 15 of the Court of Appeal Act, 2004 and decide the Appellants’ motion since their case is that Order 5, Rule 4 and Order 1, Rule 12 of the Judgment (Enforcement) Rule 2004 were not complied with in the execution by the Respondent. Reliance was placed on among others, Salami v Adebanke (2010) (1185) 456 at 472 and Bayero v Crusader Insurance Co. Ltd. (1998) 6 NWLR (553) 214 at 224 – 6. In conclusion, he prayed that the appeal be allowed and the execution by the Respondent be set aside.

The learned counsel for the 1st Respondent had submitted on Issue 1 that because by the time the Appellants’ motion was filed before the High Court the suit No. HC/54/2007 was no longer pending in that court, it had become functus officio and lacked the jurisdiction to entertain any motion in the case. He relied on statement by Karibi-Whyte, JSC in the case of Mobil Oil Ltd. v Agaduigho (1998) 2 NWLR (77) 383 and argued that the ruling of the High Court was not that it was functus officio in enforcing the judgment of this court, but that it had no jurisdiction to hear and determine the motion by the Appellants in suit No. HC/54/2007 after it had been entered as appeal No. CA/C/39/2010. It was his contention that the comment by the High Court that it was functus officio and that it was more convenient for this court to enforce its own judgment, was obiter dicta. He said that the law is trite that an appellate court is only concerned with whether the decision of lower court was right and not whether the reason given is correct, citing Allied Bank v Akubueze (1997) 6 SCNJ 116 at 141 and Odukwe v Ogunbiyi (1998) 6 SCNJ, 102 at 113. It was further argument of counsel that though the High Court can enforce the judgment of this court, it does not have the jurisdiction to entertain a motion in a matter in respect of which an appeal had been entered in the court. According to him, the complaint in the Appellants’ motion was in fact a new cause of action which should have carried a new suit number and it was incompetent in a suit that had been disposed of by that court. The High Court was said to be right in striking out the motion for being incompetent and we were urged to so hold.

On his Issue 2, it was submitted by learned counsel that since the High Court did not have jurisdiction to entertain the Appellants’ motion in suit No. HC/54/2007 and appeal No. CA/39/2010, it was right not to have considered the merit of the motion because it had no competence to do so. He cited among other cases, Ansa v Reg. Trustees of P.C.N. (2008) ALL FWLR (405) 1681 at 1704 and Abu v Kuyabana (2001) FWLR (70) 1520 at 1526 on the submission.

In the alternative, we were urged to dismiss the motion because the execution levied by the High Court was lawfully done in full compliance with the relevant laws and rules of court if we found that the High Court was wrong in the failure to determine the merit of the motion. After reference to and settling out the provisions of Order 5, Rule 4 of the Judgment (Enforcement) Rules, it was contended that what is required is that Form 41 be served or left at the place where the attachment is effected by the person doing the attachment and it is not served before the attachment as contended by the Appellants. According to counsel, the Appellants were served with Form 41 as required by law showing the inventory and date of the attachment. Further, that the Appellants did not prove non-compliance with Order 1, Rule 12 of the Rules since they did not show when the writ of attachment was received by the Sheriff.

In any event, it was argued that the validity of the writ of attachment does not depend on issuance of monthly notices by the Sheriff as was made clear by Order IV Rule 10 of the Rules. It was finally submitted that the writ in question was executed within one (1) year from the date it was issued and so it was validly and lawfully executed. Learned counsel urged us to dismiss the appeal for lacking in merit with substantial cost.

It may be recalled that the complaint by the Appellants in issue 1, is that the High Court was wrong to have held that it was functus officio to enforce the decision of this court in appeal No. CA/C/39/2010. Because the ruling by the High Court, the subject of the appeal, is a one (1) page decision, I can afford to set it in full for proper appreciation of the complaints by the Appellants. The Ruling of the High Court which is at page 78 of the record of the appeal, is as follows:-

“RULING
The issue before me is on a ruling on the Preliminary Objection raised by counsel to the Judgment/Creditor/Respondent filed in this Court on the 5th December, 2011. His ground for the objection is that this Court has no jurisdiction to entertain any motion in Suit No. HC.54/2007 after it has been entered in the Court of Appeal as Appeal No. CA/C/39/2010 and judgment given. In this argument, Respondents counsel contended that this court is functus officio.

Applicant’s Counsel on his part in his reply filed on 2nd May 2012, opined that as a general rule, a judgment may be enforced in the court which gave judgment and no other court.

I disagree with the above contention. By the Court of Appeal Judgment, the judgment of Ita E. E. Judge and the Orders were varied. I tend to agree with Respondent’s counsel’s objection that this court is functus officio. I know of no rules excluding the Court of Appeal from enforcing its own judgment.

In the circumstance, I am of the opinion that it is more expedient for the court of Appeal to enforce its own judgment.

Accordingly, I agree that this Court is functus officio to entertain the prayers asked for in the motion filed on the 22nd November, 2011.
Having so held, I uphold the preliminary objection and hereby strike out the Applicant’s Motion filed on 22nd Nov., 2011 as lacking merit.”
It is apparent from the above ruling that the High Court held that it was functus officio to entertain the Appellants’ motion because or on the ground that “I know of no rules excluding the Court of Appeal from enforcing its own judgment. In the circumstance, I am of the opinion that it is more expedient for the court of Appeal to enforce its own judgment.”

In addition, the provisions of Section 7(2) of the Court of Appeal Act, 2004 which the High Court is also presumed to know and bound to apply, provide thus:-
“7.(2) Any judgment of the Court of Appeal shall have full force and effect throughout the Federation and shall be enforceable by all courts and authorities in any part of the Federation in like manner as if it were a judgment of the High Court of that part of Nigeria.”
Once again, like the constitutional provisions, the above section imposes a judicial duty and legal obligation on the High Court to enforce the judgment in appeal No. CA/C/39/2010 as if it were a judgment of that court. The provisions of the section clearly vest the High Court with the statutory jurisdiction to enforce the judgment of this court whenever an application was made to it to that effect.
For the purpose of enforcing the judgment of this court, the High Court was to consider it as if it were its own judgment. Apparently, it was in the exercise of the jurisdiction vested on it by both the Constitution and the Court of Appeal Act, that the High Court issued out the writ of attachment as a step in the enforcement of the judgment in appeal No. CA/C/39/2010 as if it were its own judgment. So indisputably, the High Court had the requisite jurisdiction in the enforcement process of the judgment in question until it was fully and effectively concluded by complete and final execution of the order contained therein. It was therefore a misconception of the law to say that the High Court has no jurisdiction to entertain a motion arising from the process of enforcing the judgment of this court on the ground that it had disposed of the case from which the appeal was decided by judgment, no matter the outcome. It was a grave error of law on the part of the High Court to have agreed with such a misconception and to further hold that it was “functus officio to entertain the prayers asked for in the motion filed on the 22nd November, 2011.”

This position is quite different from the motion filed by the Appellants before the High Court in respect of the judgment of this Court which was from the High Court case No. HC/54/2007. The Appellants’ motion did not invite or pray the High Court to reopen, revisit or set aside the decision or judgment of the court, but to inter alia, set aside the writ of attachment and execution levied by the Sheriff of that court in the process of enforcing the judgment. The reliefs sought in the Appellants’ motion did not seek to reopen or review any of the issues determined or decided by this court in the judgment and so the principle that the High Court was functus officio does not apply. See Mohammed v Hassein (1998) 14 NWLR (584) 108 at 163 – 4; Anyaegbunam v Attorney-General, Anambra State (2001) 6 NWLR (710) 532; Ukachukwu v Uba (2005) 18 NWLR (956) 1; Duke v Ephraim; Ubong v Usua (2006) 12 NWLR (1994) 244.

The above apart, the motion filed by the Appellants before the High Court did not pray or seek for orders to enforce the judgment in the appeal No. CA/C/39/2010, but sought for order to set aside a step taken in the execution of that court’s process duly issued by it in the discharge of the constitutional duty and obligation to enforce a decision of the Court of Appeal. The writ of attachment issued by the High Court was a process of the enforcement of the judgment of the Court of Appeal and for that court to hold that it was functus officio of an application challenging the mode or way of executing the writ is a decision which defies judicious reasoning and discernment. Being a process of that court, it was one over which the High Court had the requisite jurisdiction to determine whether or not it was issued and/or executed in accordance with the law and Rules pursuant to which it was issued. As stated above, the High Court was not functus officio to determine the reliefs sought by the Appellants in the motion filed on the 22nd November, 2011 and so I resolve the issue in Appellants’ favour.

On the issue 2, from the ruling by the High Court set out earlier, it is clear that because the High Court agreed that it lacks the jurisdiction to entertain the Appellants’ motion and held that it was functus officio, it struck out the motion and so did not consider the merit of the motion.
Generally, the law is that where a court makes a finding in a matter that it lacks the requisite jurisdiction for whatever reason, to adjudicate or entertain the matter, the appropriate and proper order to make, is one striking out the matter. In the case of NDIC v CBN (2002) 7 NWLR (706) at 300, it was held by the Supreme Court that where a court makes a finding upholding an objection that it has no jurisdiction to adjudicate or entertain a case, the proper order to make is one striking out the case. See also Okoye v N.C. & F.C. (1991) 6 NWLR (199) 501; CBN v Katto (1994) 4 NWLR (339) 446; Olorode v Oyebi (1984) 5 SC, 1; Tapo v Sunmonu (1987) 3 NWLR (58) 34; Fasakin Foods v Shosanya (2006) 10 NWLR (987) 126 at 149. In the case of Okeke v Modu (1996) 9 NWLR (470) 121 at 127,

“striking out “was defined to mean” deposing of an action or application not on the merit.” The effect of striking out an action or application is to remove the action or application from the cause list albeit, temporarily and not finally, of the court.

However, in respect of an order by a court striking out an action on the ground that it lacks the requisite jurisdiction to adjudicate or entertain it, is one which has the effect of finality, subject only to an appeal, as far as that court is concerned. Once a court rules or finds and holds that it lacks the jurisdiction to adjudicate over or entertain a case before it, then the only power and authority it retains in the matter is the inherent one to make the consequential order striking out the case from its cause list. Since it lacks the jurisdiction to adjudicate in the case, it cannot after so holding turn around under any pre, to purport to consider and determine the merit of the case for that in law, would be an exercise in futility, as such a step would be void abnitio on the ground of want of jurisdiction. See Attorney-General, Lagos State v Dosunumu (2009) 3 NWLR (111) 552; Ttza v Bigha (2005) 15 NWLR (949) 616.
There can be no hearing on the merit when a court rules that it lacks the jurisdiction to adjudicate or entertain a case. For the above, the High Court rightly made the order striking out the Appellants’ motion when it held that it lacked the jurisdiction to entertain it (although erroneously).

In the case of Ezeigwe v Nwawulu (2010) 4 NWLR (1183) 137 at 203 – 4, the Supreme Court per Onnoghen, JSC in the lead judgment had held that:-
“In interpreting the above provision, this court has, in the case of Obi v INEC (2007) 1 NWLR (Pt. 1046) 560; Amaechi v INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju v Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba v INEC (2008) 18 NWLR (P1.1119) 489 stated that for the provision to apply, the following conditions must exist, to wit:-
“a) that the lower or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it;
b) that the real issue raised by the claim of the appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal;
c) that all necessary materials must be available to the court for consideration
d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and
e) that the injustice or hardship that will follow if the case is remitted to the court below must be clearly manifest.”
It should be noted that before the court can properly invoke the provisions of section 15, it must satisfy itself that all the above factors or conditions are met in an appeal by the party seeking the court to do so. It is not enough for a party to merely invite or urge the court to assume the position of a trial or first instance court in the determination of issues which were submitted to a lower court but which were not pronounced upon by that court, by the invocation of section 15. Otherwise this court would be made to always assume a position, which ill befits it in its primary position of appellate court which shall deal with complaints against decisions or pronouncements of lower courts on issues in dispute between the parties who go before them for resolution. Section 15 is only to be invoked in special circumstances and deserving appeals and not at every invitation by a party to an appeal.

In the present appeal, the learned counsel did not apart from the invitation to the court to invoke section 15, even attempt to show that the factors enumerated above by the apex court are present in the present appeal to be deserving of the invocation of section 15 by the court, If anything, the invocation of the section would be an unnecessary interference with a process initiated in and being conducted by the High Court in enforcement of the judgment of the court as provided by the Constitution and the Court of Appeal Act.

I find no reason to honour the invitation by the learned Appellants’ counsel to invoke the provisions of section 15 in respect of the motion he filed on the 22nd November, 2011.
In the result, I find merit in the appeal and allow it for the reasons given under Issue 1. Consequently, the ruling of the High Court striking out the said motion of the Appellants is hereby set aside. The motion is restored on the cause list of the High Court and ordered to be assigned to another Judge thereof, for determination. Each party to bear their respective costs of prosecuting the appeal.

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, JCA. I agree with his reasoning and final conclusions. I abide by all the consequential orders contained in the lead judgment and adopt them as mine.

ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft form, the Judgment delivered by my learned Brother, Mohammed Lawal Garba JCA. The issues raised in this appeal have been fully addressed by my learned brother. The appeal is meritorious. I am in complete agreement with his reasoning and conclusion; and have nothing further to add.
I abide by the Orders made in the lead Judgment.

Appearances

Charles E. DukeFor Appellant

AND

Essien H. Andrew for the 1st Respondent
2nd Respondent not representedFor Respondent