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TOP SERVICES LTD & ANOR v. ARTEE INDUSTRIES LTD (2021)

TOP SERVICES LTD & ANOR v. ARTEE INDUSTRIES LTD

(2021)LCN/15642(CA)

In the Court of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, September 29, 2021

CA/IB/76/2013

Before Our Lordships:

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Abdul-Azeez Waziri Justice of the Court of Appeal

Between

1. TOP SERVICES LIMITED 2. RETAIL SUPERMARKET (NIG) LTD APPELANT(S)

And

ARTEE INDUSTRIES LIMITED RESPONDENT(S)

 

RATIO

WHETHER OR NOT A COUNSEL MUST INDICATE IN HIS BRIEF OF ARGUEMENT WHICH OF THE GROUND OR GROUNDS OF APPEAL ARE COVERED BY AN ISSUE

Now, there is nothing in the rules of this Court which specifically states that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue. Even though it is desirable for counsel to indicate from which ground or grounds of appeal an issue has been distilled, the failure to so state is a mere inelegance which will not be fatal provided that it is clearly discernible that the said issue emanated from valid grounds of appeal on record. See UBN LTD vs. ODUSOTE BOOK STORES LTD (1995) 9 NWLR (PT 421) 558 at 578, DIAMOND BANK vs. OPARA (2018) LPELR (43907) 1 at 8-9 and DADA vs. DOSUNMU (2006) 18 NWLR (PT 1010) 134 at 156.  PER OGAKWU, J.C.A.

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

Once again, it is rudimentary law that any issue for determination which is not rooted in the grounds of appeal is incompetent and should either be struck out or discountenanced: ABE vs. UNIVERSITY OF ILORIN (2013) 6 NWLR (PT 1319) 183 at 205 and HONIKA SAWMILL (NIG) LTD vs. OKOJIE (1994) 2 NWLR (PT 326) 252 at 262.  PER OGAKWU, J.C.A.

THE PURPOSE OF AN AFFIDAVIT OF SERVICE

 It is hornbook law that the purpose of an affidavit of service is to convince the Court that the person on whom a process is meant to be served had in fact been served. Generally, an affidavit of service is produced as evidence or proof of service. See SOCIETE GENERAL BANK (NIG) LTD vs. ADEWUNMI (2003) LPELR (3081) 1 at 14, MARTIN SCHRODER & CO. vs. MAJOR & CO (1989) 2 NWLR (PT 101) 1 at 11 and OKOYE vs. CENTRE POINT MERCHANT BANK LTD (2008) 14 NWLR (PT 1110) 335 at 352. See also Order 7 Rule 13 of the Rules of the lower Court which provides thus:
“13 (1) After serving any process, the Process Server shall promptly depose to and file an affidavit setting out the fact, date, time, place and mode of service, describing the process served and shall exhibit the acknowledgment of service.
(2) After service, the affidavit shall be prima facie proof of service.”
PER OGAKWU, J.C.A

THE JUDICIAL DISCRETION OF THE TRIAL COURT TO GRANT OR REFUSE AN APPLICATION FOR ADJOURNMENT

It is abecedarian law that a trial Court has the judicial discretion either to grant or refuse an application for adjournment. Like all judicial discretions, it is a discretion exercised judiciously and judicially. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 NWLR (PT 1) 143, EGBONG vs. REICON CO. LTD (1998) 4 NWLR (PT 547) 655 and AKPAN vs. EKPO (2001) 5 NWLR (PT 707) 50. The Court must balance its discretionary power to grant or refuse an adjournment in such a manner that the rights of any of the parties is not prejudiced by the grant or refusal of the adjournment. Where the trial Court errs in its balancing exercise, then an appellate Court is at liberty to interfere especially where the refusal of an adjournment will amount to a denial of fair hearing. See NTUKIDEM vs. OKO (1986) 5 NWLR (PT 45) 909, DEMUREN vs. ASUNI (1967) 1 ALL NLR 94 and AGBOLOHUN vs. BALOGUN (1990) 2 NWLR (PT 134) 576. PER OGAKWU, J.C.A

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): There was an agreement for lease of premises between the 1st Appellant and Respondent. The 1st Appellant later terminated the said Agreement for Lease. The Respondent, contending that the termination was a nullity activated the arbitration clause in the Agreement for Lease and served a Notice of Arbitration on the 1st Appellant.

In a bid to preserve the res of the contest and the sanctity of the arbitration process, the Respondent instituted proceedings before the High Court of Oyo State by an Originating Motion in SUIT NO. M/345/2012: ARTEE INDUSTRIES LIMITED vs. TOP SERVICES LIMITED & ANOR, wherein the following orders were sought:
​1. AN ORDER of injunction, pending the hearing and determination of the arbitration regarding the arbitral dispute between the Applicant and the 1st Respondent, restraining the 1st Respondent, its officers, servants, agents or howsoever from offering for lease or accepting any offer for lease from the 2nd Respondent or any other party in relation to the premises at the Proposed Cocoa Mall, Dugbe, Ibadan measuring approximately 4830 sq. metres (“the premises’) or any portion thereof which premises form the subject of the Agreement for a Lease duly executed between the Applicant and the 1st Respondent (“the Agreement”) or otherwise giving effect to its purported termination of the said Agreement or howsoever embarking upon or carrying out or further carrying out any step adverse to the interest of the Applicant in the said Agreement.
2. IN THE ALTERNATIVE AND/OR IN ADDITION TO THE ABOVE, AN ORDER of injunction, pending the hearing and determination of the arbitration regarding the arbitral dispute between the Applicant and the Respondent, restraining the 2nd Respondent, its officers, servants, agents or howsoever from taking possession of the premises or any portion thereof which premises form the subject of the Agreement (whether for its trading/business use or howsoever) or otherwise embarking on any step with respect to the said premises inconsistent with and adverse to the interest of the Applicant therein in pursuance of the aforesaid Agreement.
3. IN ADDTIION TO (2) ABOVE, AN ORDER of injunction, pending the hearing and determination of the arbitration regarding the arbitral dispute between the Applicant and the 1st Respondent, restraining the 1st Respondent, its officers, servants, agents or howsoever from carrying out or further carrying out developmental and or structural works on the said the premises or any portion thereof which premises form the subject of the Agreement, in a manner inconsistent with the agreed building drawings and specifications as agreed between the Applicant and the 1st Respondent pursuant to the aforesaid Agreement.

Quia timet, and in order not to frustrate the substantive Originating Motion, the Respondent filed an ex parte application wherein it sought the following orders:
1. AN ORDER of injunction, pending the hearing and determination of the Motion on Notice, restraining the 1st Respondent, its officers, servants, agents or howsoever from giving effect to its purported termination of the Agreement for a Lease executed between the Applicant and the 1st Respondent in relation to the premises at the Proposed Cocoa Mall, Dugbe, Ibadan measuring approximately 4830 sq. metres (“the premises”).
2. AN ORDER of injunction, pending the hearing and determination of the Motion on Notice, restraining the 2nd Respondent, its officers, servants, agents or howsoever from taking possession of the premises on the strength of any lease granted in its favour by the 1st Respondent or otherwise, howsoever.

The lower Court took the ex parte application and granted the orders sought on 17th September, 2012. The proceedings and ruling of the lower Court are at pages 140A-140B of the records, while the enrolled order of the Court is at pages 109-110 of the Records. In fulfilment of the condition for the grant of the said ex parte order, the Respondent filed an undertaking to pay damages on 17th September 2012. The said undertaking is at page 110A of the Records.

The Appellants, upon being served the Court processes, filed a notice of preliminary objection and two counter-affidavits in opposition to the originating motion. Thereafter, when the matter came up for hearing on 28th September, 2012, the Respondent filed a Notice of Discontinuance of the suit. The Appellants also filed an Affidavit in Support of Damages and they applied for an adjournment for them to bring evidence for the determination of the quantum of damages they sustained in order for the Respondents undertaking to pay damages to be made good. Without making a definite pronouncement on the application for adjournment, the lower Court proceeded to accede to the discontinuance of the action and consequently struck the same out. The lower Court further held on the Appellants’ claim for injury suffered, that since evidence had not been taken in the case, it could not at that stage decide whether or not the interim order of injunction ought not to have been granted. The proceedings of the lower Court is at pages 176-177 of the Records, while the scarified Ruling of the lower Court is at pages 177-179 of the Records.

The Appellants, peeved by the decision of the lower Court appealed against the same. The original Notice of Appeal which was filed on 28th September, 2012 is at pages 180-183 of the records. However, the extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 11th January, 2021, but deemed as properly filed on 18th March, 2021. The Records of Appeal was compiled and transmitted on 6th March, 2013 but deemed as properly transmitted on 8th November, 2018.

The parties filed and exchanged briefs of argument which learned counsel adopted and relied upon at the hearing of the appeal. The extant Appellants’ Brief is the Further Amended Appellants’ brief filed on 11th January, 2012 but deemed as properly filed on 18th March, 2021. The Appellants also filed a Reply Brief on 11th January, 2021, but deemed as properly filed on 13th July, 2021. The Respondent’s brief was filed on 19th March, 2021. In the Appellants’ brief two issues were formulated for determination, videlicet:
i. Whether the learned trial Judge was not in error when he failed to rule on the Appellants application for adjournment in order that issue of damages could be decided and failing to consider the issue of damages on the facts before it. GROUNDS I, II & III.
ii. Whether the incompetent Notice of Discontinuance ought to be entertained and even if entertained, whether the suit should not have been dismissed after settlement of issue of damages.

The Respondent equally distilled two issues for determination, scilicet:
Issue One
Whether the learned trial judge was right in refusing the Appellant’s application for adjournment for determination of damages payable as a result of the grant of interim orders of injunction. [Issue 1 distilled from grounds 1, 2 and 3]
Issue Two
Whether in the overall circumstance of the case, the lower Court was right to have entertained the Notice of Discontinuance and consequently struck out the suit. [Issue 2 distilled from ground 4]

The issues distilled by the parties even though differently worded are the same in their true essence and purport. Accordingly, I will presently review the submissions of learned counsel on their respective issues and thereafter seamlessly resolve the appeal en bloc.

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that the lower Court was wrong when it failed to rule on the Appellants’ application for adjournment for the issue of damages suffered as a result of the interim injunction to be decided. It was stated that all applications must be heard and determined before the final decision in a case. The case of AKPAN vs. BOB (2010) 17 NWLR (PT. 1223) 421 at 465 was referred to. It was asserted that since the Appellants had filed an affidavit in support of damages, that it was a denial of fair hearing not to have granted an adjournment for the Appellants to file an application for an order awarding them damages, based on the Respondent’s undertaking for damages vide AILO (NIG) LTD vs. A. C. M. U. LTD (2004) ALL FWLR (PT 201) 1336.

It was further stated that the decision of the lower Court that the issue of injury suffered could not be taken at that stage of the proceedings was a breach of fair hearing as it was a decision on an application that had not been filed. The cases of GAMBO vs. IKECHUKWU (2011) 17 NWLR (PT 1277) 561 at 566 and OMIDIRAN vs. ETTEH (2011) 2 NWLR (PT 1232) 471 at 502 and 503 were relied upon. It was maintained that the proper time to consider the issue was before the case was struck out, so that the Court would not be functus officio. The case of F.B.N. PLC vs. T.S.A. IND LTD (2010) 15 NWLR (PT 1216) 247 at 296 was cited in support. The lower Court, it was stated, was to have determined, by affidavit or oral evidence, the quantum of damages and not to strike out the suit.

It is the further contention of the Appellants that they are entitled to be paid for the loss suffered due to the stoppage of construction works since the facts were before the lower Court and there was no need to call evidence before a decision could be taken, especially as the action was commenced by Originating Motion. It was opined that a party is not to be allowed to benefit from its own wrong and that the lower Court, even after striking out the case, still had the jurisdiction to determine the issue of damages suffered as a result of the order of interim injunction. The cases of ADEOGUN vs. FASHOGBON (2009) ALL FWLR (PT 449) 531 at 547-548 and THE VESSEL “SAINT ROWLAND” vs. OSINLOYE (1997) LPELR-3234 were called in aid. This Court was urged to exercise its powers under Section 15 of the Court of Appeal Act and rely on the Appellants’ affidavit in support of damages, which was not controverted and therefore deemed admitted, to award the damages claimed vide AZUH vs. U. B. N. PLC (2004) 14 NWLR (PT 893) 402 at 421 and BOSHALI vs. ALLIED COMMERCIAL LTD (1961) 1 ALL NLR 946 at 950.

The Appellants submission on their second issue is that the lower Court having held that by Order 23 of the High Court of Oyo State (Civil Procedure) Rules, 2000, the Respondent required leave to discontinue the action was wrong to strike out the action when the Respondent did not seek leave, on the ground that the Respondent could not be forced to continue with the case. It was stated that the procedure stated by law, id est, seeking leave to discontinue, must be followed. The cases of MAGAJI vs. BALAT (2004) ALL FWLR (PT 216) 462 at 493-494, EXCEL PLASTIC IND LTD vs. FBN PLC (2005) 11 NWLR (PT 933) 59 and STABILINI VISIONI (NIG) LTD vs. S. V. LTD (2011) 8 NWLR (PT 1249) 258 at 276 were referred to. It was conclusively submitted that the notice of discontinuance, being incompetent, ought not to have been considered, but that it was the issue of damages that ought to have been considered. Furthermore, that since issues had been joined on the Originating Motion by the affidavits filed and the written addresses of the parties, that the proper order to make upon discontinuance after issues had been joined was dismissal and not a striking out. The case of EGBUKOHIA vs. ONYEGBULE (2015) 8 NWLR (PT 1461) 377 at 393 was relied upon.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the grant of an adjournment is discretionary and that an appellate Court will not interfere unless the lower Court did not exercise its discretion judiciously and judicially vide GEORGE vs. GEORGE (2001) 1 NWLR (PT 694) 349, PRINCEWILL vs. USMAN (1990) 5 NWLR (PT 150) 27 and APGA vs. UMEH (2011) 8 NWLR (PT 1250) 544 at 573. It was posited that it is only where a Court makes an order that an injunction ought not to have been granted that the losing party would be called upon to make good an undertaking as to damages. The cases of SARAKI vs. KOTOYE (1990) 4 NWLR (PT 143) 144, OBEYA MEMORIAL HOSPITAL vs. A-G FEDERATION (1987) 3 NWLR (PT 60) 325 at 338 and GLOBE FISHING IND LTD vs. COKER (1990) 7 NWLR (PT 162) 265 at 295 were referred to. It was asserted that the lower Court took this principle into account when it held that it could not at that stage of proceedings decide whether or not the injunction ought not to have been granted.

It was pointed out that there was no pending application for damages as the Appellants only filed an affidavit in support of damages and only argued that the lower Court was wrong to strike out the action without considering the oral application for adjournment. It was stated that the lower Court having struck out the case and awarded costs in favour of the Appellants, presumably refused the application for adjournment. The case of CO-OPERATIVE AND COMMERCE BANK NIG PLC vs. OKPALA (1997) 8 NWLR (PT 518) 673 at 662 [sic] was relied upon. It was opined that the lower Court did not prejudge the Appellants’ claim for damages which had not been filed, since the lower Court did not hold that the Appellants were not entitled to damages, but only stated that the issue of damages could not be decided at that stage of the proceedings.

It was further submitted that the Respondent’s suit did not fail on the merits and that a Court will not order an inquiry as to damages if the damages are trifling or remote or likely to be fruitless, or where there has been a great delay in making the application. The cases of MCDONALDS HAMBURGERS LTD vs. BURGER-KING U. K. LTD (1987) FSR 112, SMITH vs. DAY (1882) 21 CH. 421 and ANIKE vs. EMEHELU (1991) 1 NWLR (PT 128) 603 at 611 were cited in support. It was stated that the Appellants had delayed when they merely filed an affidavit in support of damages. It was further contended that when a notice of discontinuance has been filed, the matter is dead and at an end and that the Appellants were wrong to argue that the lower Court possesses jurisdiction after striking out the action to consider the issue of damages. The cases of THE VESSEL “SAINT ROWLAND” vs. OSINLOYE (1997) LPELR-3234 at 19, OYELESE vs. INEC – CA/I/M.36/2011, OGUNKUNLE vs. ETERNAL SACRED ORDER, C & S (2001) 12 NWLR (PT 727) 359 and IMPERIAL HOMES MORTGAGE BANK LTD vs. MOUNT GILGAL INVESTMENTS LTD (2017) LPELR – 42711 (CA) were called in aid. It was equally contended that this Court cannot exercise its powers under Section 15 of the Court of Appeal Act in order to revive a suit which is already dead since the suit had become lis est sopita and there was nothing left for a Court to consider. The Appellants’ affidavit in support of damages, it was maintained, was therefore inconsequential vide OYELESE vs. INEC (supra), OGUNKUNLE vs. ETERNAL SACRED ORDER, C & S (supra) and ARCHIANGA vs. A-G AKWA IBOM STATE (2015) 6 NWLR (PT 71) [sic].

The Respondent urged the Court to discountenance the Appellants’ second issue, since the Appellants failed to state the grounds from which the issue was distilled, in consequence of which the arguments on the issue are threadbare, hopeless and should be disregarded by the Court. The cases of C.S.S. BOOKSHOPS LTD vs. THE REGD TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE(2006) 11 NWLR (PT. 992) 530 at 563 and VINZ INTERNATIONAL NIG LTD vs. MOROHUNDIYA (2009) 11 NWLR (PT 1153) 562 at 575 were referred to.

On the substance of the second issue it distilled, the Respondent submits that the discontinuance of an action is governed by Order 23 of the Rules of the lower Court and that where defence has not been filed, a notice of discontinuance is effective once filed, and that where leave is required and a notice of discontinuance has been filed, that the discontinuance may be effected by oral or formal application and leave is granted at the discretion of the Court. The cases of THE VESSEL “SAINT ROWLAND” vs. OSINLOYE (1997) 4 NWLR (PT 500) 387 at 411 and AGHADIUNO vs. ONUBOGU (1998) 5 NWLR (PT 548) 16 at 37-38 were relied upon. This Court was urged to hold that the Respondent sought leave orally and that the leave was obtained when the lower Court, having gone into the issue of costs to be awarded, struck out the suit and awarded costs in favour of the Appellants.

It was posited that a trial judge has the discretion to allow discontinuance on terms or disallow discontinuance. The cases of OLAOGUN vs. OSINAIKE (2018) LPELR – 44743, ERONINI vs. IHEUKO (1989) 2 NWLR (PT 101) 46 at 60, DALFAM NIG LTD vs. OKAKU INTERNATIONAL LTD (2001) 15 NWLR (PT 733) 203 at 252 and APGA vs. UMEH (supra) were cited in support. It was opined that where litis contestatio has been reached the proper order is dismissal, but where as in the instant case litis contestatio had not been reached, the proper order was a striking out vide THE YOUNG SHALL GROW MOTORS LTD vs. OKONKWO (2002) 38 WRN 98 and SOETAN vs. TOTAL NIGERIA LTD (1972) NSCC 9 at 11. It was maintained that the lower Court in allowing the discontinuance and striking out the suit exercised its discretion judiciously and judicially, such that an appellate Court will not interfere. The cases of ROYAL EXCHANGE ASSURANCE NIG LTD vs. ASWANI TEXTILE INDUSTRIES LTD (1992) 3 NWLR (PT 227) 1 and ILOABUCHI vs. EBIGBO (2000) 8 NWLR (PT 668) 197 were called in aid. It was conclusively submitted that since the Appellants had asked for costs and the lower Court in exercise of discretion awarded costs in their favour, that they can no longer be heard to complain about the exercise of discretion by the lower Court to strike out the suit instead of dismissing it.

APPELLANTS’ REPLY ON LAW
In the reply brief, the Appellants state that the grouse is that the lower Court failed to take a decision on their application for adjournment and not that it refused the application. The Respondent’s issue number one was therefore said to be incompetent as it did not to flow from the grounds of appeal and deserved to be struck out vide FUTO vs. AMCON (2019) LPELR-47327 (CA) at 8-9. The case of CO-OPERATIVE AND COMMERCE BANK NIG PLC vs. OKPALA (supra) relied on by the Respondent was said to have been cited out of context as the Court had held that the presumed refusal of adjournment will not be allowed to stand. Furthermore, that the decision in ANIKE vs. EMEHELU (supra) is that an undertaking can be realised once an injunction is dissolved, not necessarily when the case is decided on the merits, and that the interim injunction obtained by the Respondent was dissolved by operation of law based on the provisions of Order 39 Rule 3 (3) of the Rules of the lower Court, which stipulates that an ex parte order of injunction shall abate after seven (7) days.

It was submitted that both the affidavit in support of damages and the notice of discontinuance were filed on the same day, and as such the Appellants did not know that the action would be discontinued for it to be said that they had delayed. It was opined that the provisions of the Federal High Court Rules interpreted in the case of THE VESSEL “SAINT ROWLAND” vs. OSINLOYE (supra) is differently worded from Order 23 of the Rules of the lower Court which is in issue in this case, and that once the Appellants filed their counter affidavit to the Originating Motion, the suit could only be discontinued with leave of Court, more so, when the Respondent had taken many steps after filing the suit. It was asserted that where leave is required before doing an act, the failure to obtain leave renders the act incompetent. The cases of OGWUCHE vs. MBA (1994) 4 NWLR (PT 336) 75 at 86, DAHUWA vs. ADENIRAN (1986) 4 NWLR (PT 34) 264 at 271 and IFEDIORAH vs. UME (1988) 2 NWLR (PT 74) 5 at 16 were referred to.

The Appellants reply on the Respondent’s second issue is that the case of AGHADIUNO vs. ONUBOGU (supra) relied on by the Respondent is inapplicable as the Respondent did not orally or by formal application seek leave to discontinue the suit. It was posited that Rules of Court must be obeyed and so the Respondent was bound to seek leave to discontinue the suit. The case of WILLIAMS vs. HOPE RISING VOLUNTARY FUNDS (1982) 2 SC 145 was relied upon. It was conclusively submitted that justice must not only be done, but must be seen to have been done, and that no justice is done where the lower Court which stopped the construction of a shopping mall by an order of interim injunction, refused to consider the issue of damages occasioned when it is confronted with evidence of the losses sustained.

RESOLUTION
The Appellants grouch in this appeal are variously on whether the lower Court rightly countenanced the Respondent’s notice of discontinuance, whether its failure to consider the Appellants’ application for adjournment and declining to consider the issue or damages sustained by the Appellants in order for the Respondent to make good its undertaking as to damages did not violate the Appellants’ right to a fair hearing. Before I proceed to resolve these matters, let me brevi manu, deal with some of the peripheral issues raised in the submissions of learned counsel.

The Respondent contended that the Appellants’ issue number two and the submissions thereon were incompetent because the Appellants did not state the ground of appeal from which the issue was distilled. The cases of CSS BOOKSHOPS LTD vs. THE REGD TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE (supra) and VINZ INTERNATIONAL NIG. LTD vs. MOROHUNDIYA (supra) which were relied on by the Respondent do not support the Respondent’s contention. The said cases are authorities for the settled legal position that arguments in support of an issue must be traced to the ground of appeal from which the issue was distilled and where argument is not presented in support of issues deriving from a competent ground of appeal, then such an argument would be ignored for going to no issue. The ratio decidendi in the said cases is a far cry from the Respondent’s contention which is that it is fatal where the ground of appeal from which an issue was distilled has not been stated. It is instructive that the Respondent has not contended that the Appellants’ issue number two cannot be traced to any of the grounds of appeal, the contention is simply that the ground of appeal from which the issue was distilled was not stated.
Now, there is nothing in the rules of this Court which specifically states that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue. Even though it is desirable for counsel to indicate from which ground or grounds of appeal an issue has been distilled, the failure to so state is a mere inelegance which will not be fatal provided that it is clearly discernible that the said issue emanated from valid grounds of appeal on record. See UBN LTD vs. ODUSOTE BOOK STORES LTD (1995) 9 NWLR (PT 421) 558 at 578, DIAMOND BANK vs. OPARA (2018) LPELR (43907) 1 at 8-9 and DADA vs. DOSUNMU (2006) 18 NWLR (PT 1010) 134 at 156. 

As already stated, the Respondent did not contend that the said issue number two cannot be traced to any ground of appeal, accordingly, the inelegance of the Appellants not having stated the ground(s) from which the issue was formulated is not fatal. I have insightfully considered the grounds of appeal in the Amended Notice of Appeal and I am satisfied that the Appellants’ issue number two is grounded in grounds iv and v of the Amended Notice of Appeal. Therefore, the said issue number two is not incompetent.

In a seeming tit for tat, the Appellants argue in their reply brief that the Respondent’s issue number one was incompetent as it did not flow from the grounds of appeal. Once again, it is rudimentary law that any issue for determination which is not rooted in the grounds of appeal is incompetent and should either be struck out or discountenanced: ABE vs. UNIVERSITY OF ILORIN (2013) 6 NWLR (PT 1319) 183 at 205 and HONIKA SAWMILL (NIG) LTD vs. OKOJIE (1994) 2 NWLR (PT 326) 252 at 262. I have apposed the Respondent’s issue number one with grounds I, II and III of the Amended Notice of Appeal from which the issue was said to have been distilled, and it is as clear as crystal that the said issue is firmly rooted in the said grounds of appeal. I am therefore unable to accede to the Appellants’ contention that the Respondent’s issue number one is incompetent.

It is effulgent from the facts of this matter that at the pith of the contestation is the interpretation of Order 23 of the Rules of the lower Court and when leave of Court will be required in order for a suit to be validly discontinued. In this wise the stipulations of Order 23 Rule 1 (1) and (3) of the said Rules are relevant. They read:
“ORDER 23
1 (1) The claimant may at any time before receipt of the defence or after the receipt thereof, before taking any other proceeding in the action by notice in writing duly filed and served, wholly discontinue his claim against all or any of the defendants or withdraw any part or parts of his claim. He shall thereupon pay such defendant’s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.
(3) Where a defence has been filed, the claimant may with the leave of a Judge discontinue the proceedings or any part thereof on such terms and conditions as the Judge may order.”
The above provide for discontinuance of a suit without leave of Court and with leave of Court. Order 23 Rule 1 (1) seems to provide for when an action can be discontinued without leave of the Court. It provides two instances, id est, before the claimant has received the defence of the defendant and secondly, after the receipt of the defence, provided that the claimant has not taken any other step in the proceeding after receiving the defence. Let me hasten to state that receipt of defence by a claimant would only happen after the defence has been filed; so prima facie, it would seem that there is a conflict or contradiction between the stipulations of Order 23 Rule 1 (1) on discontinuing an action after receipt of defence and Order 23 Rule 1 (3) which provides that discontinuance of an action after defence has been filed may be with the leave of a Judge. However, an integral construction of both provisions would elucidate that there is no conflict or contradiction. Order 23 Rule 1 (1) would govern a situation where a defence has been filed by the defendant and received by the claimant and the claimant thereafter took no other steps in the proceeding, in which case he would not require leave to discontinue the action while Order 23 Rule 1 (3) would govern the situation where after the defence has been filed by the defendant and received by the claimant, the claimant took further steps in the proceeding and would therefore require leave of the Judge or Court to discontinue the action.

It is against this background of the interpretation of Order 23 Rule 1 (1) and (3) that the relevant facts of this matter have to be contextualized in order to ascertain if the Respondent required leave of the Court to discontinue the action. In this regard, it is clear from the records that the Appellants filed their defence on 21st September, 2012. The Records further show that on 24th September, 2012, the Respondent filed an ex parte application and moved the lower Court for an extension of the lifespan of the ex parte order of injunction, which order of extension the lower Court refused to make. Furthermore, the records show that on 28th September, 2012 the Respondent filed a Notice of Discontinuance, on which date the lower Court also struck out the action. By all odds, the things done by the Respondent on 24th September, 2012 is “taking any other proceeding in the action” within the intendment of Order 23 Rule 1 (1); the effect of this and whether it would now portend that leave to discontinue the action would be required under Order 23 Rule 1 (3) would depend on if the Appellants’ defence had been received by the Respondent. I have gone through the Records of Appeal with the finery of a judicial toothcomb and I was unable to see any affidavit of service showing when the Appellants’ defence was served on and received by the Respondent. It is hornbook law that the purpose of an affidavit of service is to convince the Court that the person on whom a process is meant to be served had in fact been served. Generally, an affidavit of service is produced as evidence or proof of service. See SOCIETE GENERAL BANK (NIG) LTD vs. ADEWUNMI (2003) LPELR (3081) 1 at 14, MARTIN SCHRODER & CO. vs. MAJOR & CO (1989) 2 NWLR (PT 101) 1 at 11 and OKOYE vs. CENTRE POINT MERCHANT BANK LTD (2008) 14 NWLR (PT 1110) 335 at 352. See also Order 7 Rule 13 of the Rules of the lower Court which provides thus:
“13 (1) After serving any process, the Process Server shall promptly depose to and file an affidavit setting out the fact, date, time, place and mode of service, describing the process served and shall exhibit the acknowledgment of service.
(2) After service, the affidavit shall be prima facie proof of service.”

In the absence of an affidavit of service, I cannot begin to speculate if the defence had been received by the Respondent such that its notice of discontinuance would be taken outside the purview of Order 23 Rule 1 (1) to come within the ambit of Order 23 Rule 1 (3). In the circumstances, I make bold to hold that in the diacritical circumstances of this matter, the Respondent did not require leave of the Court to discontinue the action and that the lower Court in making the order striking out the action acted within the terms of Order 23 Rule 1 (1) when in striking out the action, it made an order for costs in favour of the Appellants. There is therefore no basis for an appellate Court to interfere.

The Appellants made a foofaraw on the lower Court not having made a decision on their application for an adjournment before it struck out the action. It is effulgent from the records that the Appellants applied for an adjournment to enable them file their claim for damages and bring their evidence of damages. See pages 176-177 of the records. Without a doubt, in the ruling of the lower Court at pages 177-179 of the records, the lower Court was silent on the application for adjournment. In CO-OPERATIVE AND COMMERCE BANK NIG PLC vs. OKPALA (supra) at 696; Achike, JCA (as he then was and of blessed memory) asseverated:
“Now since no express or positive consideration whatsoever was given to the application for adjournment, the presumption in law is that the application was refused. That cannot be the end of the matter because the trial Court having abdicated his responsibility to decide on whether the procedure adopted … by openly refusing to carry out his legal duty should be overlooked, particularly where such conduct prejudices the legal rights of any of the parties.”
The Respondent is correct in its submission that the failure of the lower Court to pronounce on the application for adjournment results in a presumption that the application for adjournment was refused. In the same vein, the Appellants are correct in their submission that such presumed refusal of an adjournment is not without its consequences. As clearly stated in the dictum redacted above, consequences attach where the presumed refusal of adjournment “prejudices the legal rights of any of the parties.”

It is abecedarian law that a trial Court has the judicial discretion either to grant or refuse an application for adjournment. Like all judicial discretions, it is a discretion exercised judiciously and judicially. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 NWLR (PT 1) 143, EGBONG vs. REICON CO. LTD (1998) 4 NWLR (PT 547) 655 and AKPAN vs. EKPO (2001) 5 NWLR (PT 707) 50. The Court must balance its discretionary power to grant or refuse an adjournment in such a manner that the rights of any of the parties is not prejudiced by the grant or refusal of the adjournment. Where the trial Court errs in its balancing exercise, then an appellate Court is at liberty to interfere especially where the refusal of an adjournment will amount to a denial of fair hearing. See NTUKIDEM vs. OKO (1986) 5 NWLR (PT 45) 909, DEMUREN vs. ASUNI (1967) 1 ALL NLR 94 and AGBOLOHUN vs. BALOGUN (1990) 2 NWLR (PT 134) 576.

The Appellants are piqued by the fact that the lower Court proceeded to strike out the Respondent’s action rather than grant the adjournment sought to enable them ventilate and prove the damages they sustained as a result of the ex parte order of interim injunction. For good measure, the Appellants submit that in consequence they been denied their right of fair hearing. Undoubtedly, it is trite law that if it turns out that an ex parte order of injunction had been improperly granted, the party affected by the injunction is entitled to apply to the Court for indemnity in damages occasioned by the injunction. This is done by applying to Court for an enquiry as to damages, which can be done at the trial or before trial. However, it is not the law that the application for an inquiry as to damages cannot be made after the action had been disposed of, whether by discontinuance or otherwise: C. N. EKWUOGOR INVESTMENT LTD vs. ASCO INVESTMENT LTD (2019) LPELR (50196) 1 at 22-25. The Appellants after referring to the case of THE VESSEL “SAINT ROWLAND” vs.OSINLOYE correctly stated the law as follows in paragraph 4.11 of the Further Amended Appellants Briefs:
“In effect, even where the trial Court decided to strike out the suit, he still possessed the jurisdiction to determine the issue of damages, being a right already acquired consequent upon the interim injunction earlier granted.”

This submission is further underscored in paragraph 1.27 of the Appellants’ Reply Brief. So, on the Appellants own showing, their right to ventilate their grouse on the losses sustained as a result of the ex parte order of injunction remained intact even after the presumed refusal of the application for adjournment and the striking out of the action. Their right to fair hearing was in consequence not impaired and their legal rights were not prejudiced in any manner to require the intervention of a Court on appeal: CO-OPERATIVE AND COMMERCE BANK vs. OKPALA (supra).

As I begin to wrap up this judgment, let me consider the Appellants invitation for the Court to invoke its powers under Section 15 of the Court of Appeal Act and rely on the Affidavit in Support of Damages to award the amount stated therein in favour of the Appellants. It bears iterating that the basis on which the Appellants sought an adjournment at the lower Court is to enable them file their claim for damages and bring the evidence of damages. See pages 176 and 177 of the records. This in my respectful view is an admission that the affidavit in support of damages is not sufficient to ground the grant of the damages claimed by the Appellants. The Appellants however contend that this Court should act on the same as no counter-affidavit was filed as a result of which the contents of the affidavit are deemed admitted. It is no doubt the law that unchallenged and uncontroverted facts deemed admitted in an affidavit must be capable of proving and supporting a case, however, the affidavit evidence must be cogent and strong enough to sustain the case. See OGOEJEOFO vs. OGOEJEOFO (2006) LPELR (2308) 1 at 14, EGBUNA vs. EGBUNA (1989) 2 NWLR (PT 106) 773 at 777 and INEGBEDION vs. SELO-OJEMEN (2013) LPELR (19769) 1 at 33.

The damages which the Appellants claim they sustained as a result of the injunction is in the nature of special damages. The law is that for special damages to be awarded, it must be specifically pleaded and strictly proved since without such proof, no award can be made: OSUJI vs. ISIOCHA (1989) 3 NWLR (PT 111) 623 at 633 and 636, SHELL B. P. vs. COLE (1978) 3 SC 183 and IMANA vs. ROBINSON (1979) 3-4 SC 1 at 23. Without going into whether this is a good case for the exercise of the Court’s powers under Section 15 of the Court of Appeal Act, the Appellants by their own showing in asking for an adjournment at the lower Court to bring evidence of damages clearly concede that the affidavit in support of damages does not strictly prove the damages claimed. I will further demonstrate.

The affidavit in support of damages is at pages 172-175 of the Records. It is deposed as follows in paragraph 4 iii, vi – ix and xi thereof:
iii. That the 1st Defendant obtained loans from the bank to finance these constructions and interests mount on the loan every day.
vi. That upon receipt of the said order, the Defendants stopped work but the fees and bank interest kept running.
vii. That on a monthly basis, valuation of works executed on the Cocoa Mall under construction varies between N30 Million and N68 Million.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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viii. That adopting the minimum from 19th-24th September, the redundancy claim which is a loss to the Defendants is N5 Million.
ix. That interest on bank Loan from 19th–24th September is N1,818,803.31.
xi. That the total loss suffered by the Defendants due to the said injunction is N11,818,803.31 (Eleven Million Eight Hundred and Eighteen Thousand, Eight Hundred and Three Naira, Thirty One Kobo).

The Appellants did not exhibit any documents in the affidavit to establish that a loan was in fact obtained, the rate of interest on the loan and most of the facts which make the calculation on which the amount of N11.8million claimed as the loss suffered was arrived at. See IMANA vs. ROBINSON (supra). The matter does not end there. In paragraph 4x of the Affidavit in support of damages, the Appellants claim the legal fees which it paid/agreed to pay its legal practitioners for the conduct of the discontinued action. They exhibited to the affidavit, a receipt for part payment of professional fees issued by their legal practitioner.

Now, the claim for legal fees as made clear in the receipt, Exhibit A to the affidavit, is a claim for the professional fees of the Appellants’ counsel for services rendered or to be rendered in the discontinued action. In MICHAEL vs. ACCESS BANK (2017) LPELR (41981) 1 at 48 – 49, I was privileged to state at follows:
“… it seems to me that a claim for Solicitors fees which does not form part of the cause of action is not one that can be granted. A relief which a claimant in an action is entitled to, if established by the evidence, are those reliefs which form part of the claimant’s cause of action. From the Respondent’s pleadings, its cause of action is the alleged defamation of its corporate name by the Appellant. The claim for Solicitors fees for defending the Appellant’s action and for prosecuting its counter-claim in respect of its said cause of action does not form part of the Respondent’s cause of action. In GUINNESS NIGERIA PLC vs. NWOKE(PT 689) 135 at 159, this Court held that a claim for Solicitors fees is outlandish and should not be allowed as it did not arise as a result of damage suffered in the course of any transaction between the parties. Similarly, in NWANJI vs. COASTAL SERVICES LTD(2004) 36 WRN 1 at 14-15, it was held that it was improper, unethical and an affront to public policy, to have a litigant pass the burden of costs of an action including his Solicitors fees to his opponent in the suit. Therefore, I think that on the current state of the law, a claim for Solicitors fees, which does not form part of the claimant’s cause of action is not one that can be granted.”
This remains the legal position as I know it. See also IBE vs. BONUM NIGERIA LTD (2019) LPELR (46452) 1 at 37-39.

In a coda, there is no way this Court can, even if it is disposed to invoke its powers under Section 15 of the Court of Appeal Act, enter judgment for the Appellants on the strength of their Affidavit in Support of Damages, as the said Affidavit does not prove the basic proposition which it is meant to establish.

The concatenation and conflating of the foregoing is that the issues for determination must perforce be resolved against the Appellants. The appeal is bereft of any merit whatsoever, it accordingly fails and it is hereby dismissed. The parties are to bear their respective costs of this appeal.

FOLASADE AYODEII  OJO, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I agree entirely with the reasoning and conclusion reached therein.

In this appeal, learned Counsel to the Appellants urged us to rely on the affidavit of the Appellants in support of damages to award damages pursuant to our powers under Section 15 of the Court of Appeal Act. Section 15 of the Court of Appeal Act, 2004 provides as follows: 
“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 fun jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purposes 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 reheard by a Court of competent jurisdiction.”
The foregoing statutory provision has been subjected to interpretation by the Courts in a long line of authorities including the cases of EZEIGWE VS. NWAWULU (2010) 4 NWLR (PT. 1183) 159, INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423, ATTORNEY-GENERAL, KWARA STATE ANOR VS. LAWAL ORS (2017) LPELR-42347(SC). It is therefore settled that Section 15 of the Court of Appeal Act, 2004will be applied where the following conditions exist: 
(a) the lower Court or trial Court has the legal power to adjudicate in the matter;
(b) the real issue raised by the claim of the Appellant at the lower Court or trial Court is distillable from the grounds of appeal;
(c) necessary materials is available to the Court for consideration 
(d) the need for expeditious disposal of the case to meet the ends of justice is apparent on the face of the materials presented and, 
(e) the injustice or hardship that will follow if the case is remitted to the Court below is clearly manifest.

The question now is whether the instant appeal is an appropriate case for this Court to exercise the powers vested in it by Section 15 of the Court of Appeal Act? The answer is not farfetched. The affidavit in support of damages is not supported by documentary evidence. To my mind, the Appellants need to present documentary evidence to establish the quantum of damages to be awarded. There is nothing like that on record. The inadequacy of evidence to support the award is manifest on the face of the record. The Appellants have failed to place sufficient materials before this Court to warrant invocation of our powers under Section 15 of the Act (supra).

It is for the foregoing reason and the fuller reasons in the lead judgment that I find this appeal to be devoid of merit. It is also dismissed by me.

ABDUL-AZEEZ WAZIRI, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA just delivered.

He adroitly marshalled all the issues nominated in this appeal. I adopt his reasoning and conclusion as mine. The appeal as it is, is irredeemable and I shall join him in dismissing same. I equally abide by the consequential order made that each of the parties to bear the costs for the Appeal. 
Appeal dismissed.

Appearances:

Michael F. Lana, Esq. with him, Kehinde Owoade, Esq. For Appellant(s)

Mrs. Omoyemi Olusunmade For Respondent(s)