YAJI & ORS v. WOMBO
(2021)LCN/15884(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Tuesday, June 01, 2021
CA/MK/187/2018
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
1. T. J. YAJI, ESQ. 2. T. T. AMMATIMIN ESQ. (Practicing Under The Name Of Timothy Tertsegha Arnaatimin Esq.) 3. T. WUAZE ESQ. (Practicing Under The Name Of Terhemba Wuaze Esq.) 4. JOY NYIEMA ANUNDU APPELANT(S)
And
SOLOMON WOMBO RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURTS CAN AWARD COSTS AGAINT ERRING LITIGANTS AND THEIR COUNSELS
Now to answer the question whether or not the entire proceedings before the lower Court and the ruling in motion no. MHC/2276M/2017 are not a nullity for lack of fair hearing and obtained without jurisdiction, I need to state clearly that all Courts including the lower Court, owe it as a duty to itself to guard its integrity jealously. The Courts are endowed with unfettered powers to control its proceedings as well as prevent litigants and or their counsel from taking undue advantage of the Courts. In order to secure these powers, the Courts are armed with the inherent fiat to award costs against erring litigants and or their counsel. For an appeal against the exercise of such discretion to succeed, it must be shown by the appellant that there has been a wrongful exercise of the discretion in that the Court had acted under a mistake of law, or in disregard of principle, or under a misapprehension of the facts, or has taken into account irrelevant matters, or on the ground that injustice will arise. See Snig (Nig) Ltd. vs. Wema Bank Plc. (2019) All FWLR Pt. 981, pg. 817, 813-814, paras. G-F; Odutola vs. Kayode (1994) 2 NWLR Pt. 324, pg. 1; and Alhassan vs. F.G.N. (2010) LPELR-3707. PER JOMBO-OFO, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal is in respect of the ruling of the Benue State High Court (hereinafter referred to as the lower/trial Court), in Motion No. MHC/2276M/2017, per Hon. Justice M. A. Ikpambese, J., delivered 19th January, 2018.
BRIEF BACKGROUND FACTS TO THE APPEAL
The Writ of Summons that birthed this Motion No. MHC/2276M/2017 and a host of other motions before it, was taken out on 5th August, 2011. The Writ of Summons with No. MHC/249/2011 and its accompanying Statement of Claim had the following parties – John Kyuka and Terzungwe Raphael Kyuka as the two plaintiffs, against Joy Nyieyima Anundu, Francis Ikyaagba Kyuka and Solomon Wombo as the three defendants. On 8th March, 2013 and pursuant to the plaintiffs’ application, the names of Francis Ikyaagba kyuka was struck off the suit thus leaving Solomon Wombo to be the 2nd defendant. The 1st defendant (Joy Nyieyima Anundu) filed her Statement of Defence on 2nd September, 2011. The 2nd defendant on his part filed an Amended Statement of Defence and Counter-Claim pursuant to the leave of Court granted to him by the lower Court on 25th September, 2013. While the 2nd and 3rd defendants to the counter-claim filed a defence to the counter-claim, the 1st defendant to the counter-claim (Joy Nyieyima Anundu) failed to file any defence to the counter-claim. At the hearing the respective parties that deemed it necessary so to do, called witnesses and tendered exhibits.
In its considered judgment delivered 21st November, 2016, the learned trial Judge dismissed the plaintiffs’ claim against the defendants particularly the 2nd defendant counter-claimant, while judgment in the counter-claim was given in favour of the 2nd defendant/counter-claimant and against the 1st defendant/4th appellant and the two plaintiffs/2nd and 3rd defendants to the counter-claim.(See pages 6 – 14 of the record of appeal).
Piqued by the decision, the 1st defendant/4th appellant (now a judgment debtor), engaged the services of counsel including the 1st–3rd appellants to take necessary appellate steps including seeking a stay of execution of the judgment No. MHC/249/11 delivered 21st November, 2016. It is the said appellate steps that led to series of motions including motion no. MHC/2276M/2017 from which this appeal emanated. Upon the filing of the Notice of Appeal on 5th March, 2018, transmission of the record of appeal followed. Being that it was transmitted out of time to this Court on 10th September, 2018, the same was deemed properly transmitted on 14th September, 2020 pursuant to leave of this Court granted to the appellants. The 1st, 2nd and 3rd appellants sought for and were granted the leave of Court to appeal against the judgment as interested parties on same 14th September, 2020. The relevant Notice of Appeal is contained after page 202 of the record of appeal.
The parties in compliance with the practice and rules of this Court filed and exchanged briefs of argument. The appellants’ brief of argument dated 16th September, 2020 and filed 17th September, 2020 and the appellant’s reply brief dated 3rd March, 2021, filed out of time 4th March, 2021 but deemed proper on 4th March, 2021, were both settled by T. Pusa, Esq. The respondent’s brief of argument dated and filed 10th February, 2021 and deemed properly filed also on 4th March, 2021 was settled by F. T. Unongo, Esq.
From the 4 grounds of appeal, the appellant distilled the following 4 issues for determination:
1. Whether or not the entire proceedings before the lower Court and the ruling in motion no. MHC/2276M/2017 are not a nullity for lack of fair hearing and obtained without jurisdiction. This issue is distilled from ground 1.
2. Whether or not the lower Court could effectively and legally award cost against the 1st – 3rd Appellants being counsel in the suit and not parties thereof. Distilled from ground 2.
3. Whether the ruling of the lower Court awarding cost against the Appellants was warranted, reasonable, supported by law and fact reached judicially and judiciously. Distilled from Ground 3.
4. Whether the lower Court was right to have held the existence of a pending application to be within the peculiar knowledge of counsel or whether it is the duty of the Appellants to bring the existence of the application to the attention of the Court. Distilled from ground 4.
The respondent on his part distilled the following lone issue for determination of the appeal:
Whether in view of the frivolous and vexatious applications filed by the 1st – 3rd Appellants for and on behalf of the 4th Appellant, the lower Court was right to have awarded cost against the Appellants. (Grounds 1, 2, 3 and 4).
Though the lone issue as formulated for determination by the respondent is quite encompassing, however, I feel the need to adopt the 4 (four) issues as developed by the appellants and they are so adopted for determination of the appeal.
ISSUES ONE AND TWO ARGUED TOGETHER
Whether or not the entire proceedings before the lower Court and the ruling in motion no. MHC/2276M/2017 are not a nullity for lack of fair hearing and obtained without jurisdiction;
AND
Whether or not the lower Court could effectively and legally award cost against the 1st – 3rd Appellants being counsel in the suit and not parties thereof.
The learned counsel for the appellants in arguing these issues together began by submitting that the entire proceedings and ruling of the lower court are vitiated by the lower Court’s breach of the principle of fair hearing and that the lower Court could not effectively and legally award cost against the 1st – 3rd appellants. Appellants contend that from the circumstances of the case, the lower Court erred in awarding cost against the 1st – 3rd appellants without affording them a chance to be heard and when they were dutifully performing their functions as counsel to the 4th appellant.
Learned counsel for the 4th appellant enumerated the following motions as filed by them on her behalf:
i. Motion No. MHC/683M/17, filed 31st March, 2017. (See pages 72 – 92 of the record of appeal);
ii. MHC/2276M/17, filed 11th November, 2017. (See pages 24 – 45 of the record of appeal);
iii. MHC/1084M/17, filed 11th May, 2017. (See pages173 – 185 of the record of appeal); and
iv. MHC/225M/17 which was filed by the Chambers of V. T. Uji & Co., on 8th February, 2017. (See pages 152 – 172 of the record of appeal).
Appellants went further to submit that at the resumed sitting of the lower Court on 30th March, 2017, the Court noted as follows:
T. T. Amatimin, Esq., has no pending process before this Court and it has been cross checked. He is a stranger to these proceedings hence he cannot be granted further audience. (See page 187 of the record of appeal). Appellants canvassed that the 2nd appellant was not a party to the proceedings and naturally unaware of them. They contended that there was no basis for the award of N20,000.00 costs as the same was punitive in nature and accessed unilaterally by the lower Court on its whims and caprices. Appellants referred to the ruling of the lower Court on 9th November, 2017 and submitted that the appellants had no notice of same. See Darma vs. Eco Bank Nig. Ltd. (2017) All FWLR Pt. 887, pg. 124 at 154 F-H, 155 B-F. Appellants contended that there was no proof of service of the hearing date, none is contained in the records and the Court is to hold that none exists. See Order 7 Rules 13 and 16 of the Benue State High Court Rules, which provides that proof is by affidavit of service duly filed by the bailiff of court.
Appellants canvassed that in the absence of endorsement as to service by the person upon whom the process was served, an affidavit of service, coupled with the continued absence of the appellant would have put the lower Court on edge as to whether or not the appellant was served. That having not convinced itself of that fact, it proceeded to make orders without notice on the appellant and that this has occasioned injustice. Appellants went on to submit that peradventure we hold that the information by the Clerk of Court amounts to good notice, then that a wrong date, which was a day later in time than that allegedly fixed by the lower Court, was communicated to the appellant and that vitiated any notice the appellants could have had of the said date. They submitted that it is the result from this that led to the striking out of motion no. MHC/638M/2017 and the filing of motion no. MHC/2276M/2/2017 on 10th November, 2017, which the lower Court considered and held that the 1st – 3rd appellants filed vexatious processes and consequently awarded cost against them.
Relying on Section 36(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the appellants submitted that failure of the lower Court to communicate the adjourned date of motion no. MHC/638M/2017 occasioned a violation of the appellants’ right to fair hearing. They urged that the appeal be allowed on this ground. See the cases of Ndukauba vs. Kolomo (2005) All FWLR Pt. 248, pg. 1602 at 1616 C-F; Garba vs. University of Maiduguri (1986) 1 NWLR Pt. 18, pg. 550; Menakaya vs. Menakaya (2001) 13 NWLR Pt. 730, pg. 403; Adigun vs. A.G., Oyo State (1987) 1 NWLR Pt. 53, pg. 687; Hart vs. Military Governor, River State Public Service Commission and Att-Gen. (1976) 11 SC. 211.
The appellants further contended that having not only awarded costs against the 4th appellant, who was party to the suit and on whose behalf the 1st – 3rd appellants acted, the cost awarded against the 1st – 3rd appellants is in the nature of a contemptuous behavior and depicts counsel as an unworthy minister in the Temple of Justice, one who cannot be an amicus curiae. They canvassed that being somewhat contemptuous, as a result of “reprehensible” conduct deserving of punishment, ill advising and wasting the time of the Court, the 1st – 3rd appellants ought to have been heard under the age long audi alteram partem principle enshrined under Section 36 of the Constitution. See Ceekay Traders Ltd. vs. Gen. Motors Co. Ltd. (1992) 2 NWLR Pt. 222, pg.132; University of Nig. Teaching Hospital Management Board vs. Nnoli (1994) 8 NWLR Pt. 363, pg. 376; and Muhammed vs. A.B.U., Zaria (2014) 7 NWLR Pt. 1407, pg. 500, 530, paras. F-F. Appellants finally urged on us to hold in the interest of justice that the procedure upon which the lower Court proceeded to award cost against the appellants was faulty and against the principles of fair hearing and therefore return issues 1 and 2 in favour of the appellants and allow the appeal.
ISSUE 3
Whether the ruling of the lower Court awarding cost against the Appellants was warranted, reasonable, supported by law and fact reached judicially and judiciously.
Under this issue, the learned counsel for the appellants submitted that the lower Court’s decision to award cost against them was unwarranted, unreasonable, unsupported by law and fact and was not reached judicially and judiciously. That a judicial discretion, as that awarding cost against the appellants, ought to be founded upon facts and circumstances presented to the Court, from which it must draw conclusion governed by law. That discretion must be exercised honestly and in the spirit of the law. See Eye vs. F.R.N. (2018) All FWLR Pt. 961, pg. 1469, paras. A-B (SC). Appellants argued that the exercise of the lower Court’s discretion was mala fide, whimsical, arbitrary, wrongful and not hinged upon any cogent, sufficient, correct and convincing reason. Appellants argued that motion nos. MHC/5047M/2016 and MHC/225M/2017 did not originate from the appellants and the wrongful inclusion of them with those filed by the appellants, led the lower Court to hold erroneously that the appellants’ conduct was reprehensible. Appellants urged on us to find favour in their case and return issue 3 in favour of the appellants.
ISSUE 4
Whether the lower Court was right to have held the existence of a pending application to be within the peculiar knowledge of counsel or whether it is the duty of the Appellants to bring the existence of the application to the attention of the Court.
Keeping in view the build up to the lower Court’s ruling on cost, the appellants submit that the lower Court ought to have considered the implication of granting a Writ of Possession when Motion No. MHC/5047M/2016 seeking stay was still pending. Appellants argued that the lower Court would have utilised the avenue offered by the motion to set aside the wrongful partial execution.
See Ibezim vs. Ibezim, per Agube, J.C.A., at page 1820 as well as the findings of the lower Court as contained at pages 195 – 197 of the record of appeal.
Appellants contended that as at 19th January, 2018 when the lower Court awarded costs against them for ‘frustrating the judgment and filing vexatious processes,’ it had come to the realization that Motion No. MHC/5047M/2016 was actually in existence and pending. The partial execution was therefore wrongful and an application to set same aside could not have been aimed at ‘frustrating the judgment and filing of vexatious processes’ or impinging the decorum of our profession, but aimed at attaining the ends of justice.
Appellants once again urged on us to return issue 4 in favour of the appellant and allow the appeal.
On the converse, the respondent submitted that the 4th appellant as the 1st defendant at the lower Court remained a judgment creditor contrary to being a judgment debtor, which status she gave to herself on her own volition.
Respondent submitted that aside from the motions filed earlier by the appellants seeking similar reliefs and in abuse of Court process, one R. A. Adekwagh also filed motion no. MHC/225M/2017 on behalf of the 1st and 2nd judgment debtors, wherein the respondent joined issues with the appellants canvassing to their knowledge that the judgment sought to be stayed was already fully executed on 12th January, 2017. (See Exhibits “A” and “B” and pages 144 – 145 of the record of appeal).
The respondent canvassed that all Courts in Nigeria are vested with powers of control in all proceedings and as a measure of such control can impose cost against either a party or counsel. Respondent recalled the authority of Ogboro vs. R.T.L.P.C. (2016) All FWLR Pt. 835, pg. 370, 388, paras. E-F, on the issue of fair hearing. Respondent submitted finally that the 1st – 3rd appellants cannot turn around to allege fair hearing when it is on record that they were represented by T. Wuaze, Esq. Respondent concluded that the trial Court rightly, effectively, legally, reasonably and judicially and judiciously awarded punitive cost against the appellant for engaging themselves in the acts of abuse of Court processes.
Respondent urged on us to dismiss the appeal for lacking in merit. The appellants in their reply brief are of the contention that the lone issue formulated by the respondent and arguments proffered thereunder have no bearing either on the issues raised by the appellants or arise from any of the grounds of appeal and as such the respondent’s brief of argument is bereft of legal value and is incurably defective and ought to be discountenanced. I think that the contention of the appellants regarding the lone issue as raised by the respondent is unsupportable in law. The issue distilled by the respondent is a composite and encompassing issue that conveniently has its root and precursor in the 4 grounds of the appeal. The lone issue is therefore afforded a legal platform to stand on. Appellants’ argument in this regard is therefore discountenanced.
Besides the foregoing point of law, I think that the rest of the issues donated and argued in the appellants’ reply brief are more or less a rehash of their main brief. I shall however draw from it, only salient points of law where and when I deem it necessary.
RESOLUTION OF ISSUES I (ONE) AND II (TWO) TOGETHER
Whether or not the entire proceedings before the Lower court and the ruling in motion No. MHC/2276M/2017 are not a nullity for lack of fair hearing and obtained without jurisdiction.
AND
Whether or not the lower Court could effectively and legally award cost against the 1st – 3rd Appellants being counsel in the suit and not parties thereof.
In determining these merged issues 1 and 2, I deem it necessary to begin by tracing chronologically the relevant proceedings that led to the vexed ruling in motion no. MHC/2276M/17.
Judgment in the suit no. MHC/249/2011 was delivered in favour of the 2nd defendant/counter-claimant and against the 1st defendant/4th appellant and two others (1st and 2nd plaintiffs). She the 1st defendant/4th appellant (who for ease of reference I would occasionally refer to simply as the 4th appellant) briefed counsel, including the 1st – 3rd appellants to appeal against the judgment.
Meanwhile, 14 days after the judgment which was 5th December, 2016, the learned trial Judge, working within the ambit of the law, signed the Writ of Possession (Form 17 or Exhibit “A”). (See page 54 of the record of appeal). Consequent upon being briefed by the 4th appellant to pursue an appeal against the judgment/ruling, Mr. George L. Usongo (JP), on 14th December, 2016 filed a Motion on Notice (No. MHC/5047M/16) seeking Stay of Execution of the judgment No. MHC/249/2011 delivered on 21st November, 2016. The judgment sought to be stayed was annexed as Exhibit “A” to the affidavit in support of the motion. Also annexed as Exhibit “B” to the affidavit is a Notice of Appeal filed 13th December, 2016 by George L. Usongo of counsel. (See pages 1 – 23 of the record of appeal).
Meanwhile on 12th January, 2017, while motion no. MHC/5047M/2016 was still pending, the bailiffs of the lower Court went into the premises and carried out an execution of judgment no. MHC/249/2011 by putting the 4th appellant out of a part of the premises in quo. It seems to me and I so hold that the filing or pendency of an application to stay execution does not in law translate to a stay of execution of the judgment sought to be stayed. The notion of the appellants that the pendency of motion no. MHC/5047M/2016 was enough for the lower Court to withhold the grant of a Writ of Possession, to say the least is jaundiced and thwarted. An application for stay can only operate and bring about the stay, only when it has been granted by a Court of competent jurisdiction. Withholding the grant of a Writ of Possession at the mere sight of an application to stay execution, tantamount to denying a successful litigant of the fruit of his judgment, and thus injustice to him.
Be that as it may, while motion no. MHC/5047M/2016 was pending, the 3rd appellant, being one of the counsel in the chambers of the 1st appellant proceeded to file another motion with No. MHC/1084M/2017 on 11th May, 2017 seeking similar reliefs on behalf of the 2nd and 3rd judgment debtors/applicants to wit – John Kyuka and Terzungwe Kyuka. The reliefs are reproduced hereunder thus:
1. An order of Court setting aside the partial execution of the judgment of Honourable Court carried out on 12th January, 2017.
2. An order staying the execution of the judgment of this Honourable Court pending the determination of the appeal filed by the Applicants. (See pages 173 – 185 of the record of appeal).
The 2nd appellant later withdrew MHC/1084M/17 and same was struck out 16th June, 2017. (See pages 190 – 191 of the record of appeal).
On the other side, on 31st March, 2017, counsel for the 4th appellant and irrespective of the still pending motion no. MHC/5047M/16, filed another motion no MHC/683M/2017 with similar reliefs therein. The pending motion or motions was/were adjourned to 20th July, 2017 for hearing. For some reasons, hearing did not go on the said 20th July, 2017 hence the adjournment off record to 9th November, 2017. Part of what transpired at the lower Court read as follows:
A. I. Wombo, Esq… The applicant’s counsel is not in Court. The applicant herself is not in Court.
Applicant’s counsel is aware of this date because he suggested this date when oral adjournment was granted.
G. A. Tar (CC): I did record the appearances of counsel and adjourned for today. T. T. Amatimin appeared for the applicants.
A. I. Wombo, Esq.: No reason has been given for absence of counsel or applicants himself (sic). It clearly shows the applicant is not interested in prosecuting this matter. I urge the Court to strike it out for want of prosecution.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Court: This date was taken with the knowledge of T. T. Amaatimin, Esq., on 13/10/2017 who was in Court. The Judge went for medical checkup. The records of Clerk, G. A. Tar (CC), shows that applicant herself was absent on 13/10/2017. Since T. T. Amaatimin, Esq., is aware of today’s date and has not written to Court to explain his absence, it is deemed that the application is abandoned. Applicant herself does not bother to attend to this application.
I agree with the remarks made by A. I. Wombo, Esq., and strike out this application for want of diligent prosecution. (See pages 190 – 192 of the record of appeal).
From the foregoing excerpts, I am satisfied that A. A. Amaatimin of counsel for the 4th appellant was present in Court on 13th October, 2017 when the pending motion was adjourned off record by the clerk of the lower Court to 9th November, 2017. It was thus out of his own volition that the said 2nd appellant (A. A. Amaatimin, Esq.), chose to stay away from Court on 9th November, 2017. The learned trial Judge was therefore justified when he struck out the Motion No. MHC/683M/17 for lack of diligent prosecution. The highest Court of the land has had cause to caution in several instances that the Legal Profession is serious business meant for honest lawyers. See the apex Court’s most recent decision this wise in the authority of Passco Int’l Ltd. vs. Unity Bank Plc. (2021) 7 NWLR Pt. 1775, pg. 224(SC), where Saulawa, J.S.C., at pages 261-262 had this message for all and sundry:
The legal practice is a very serious business exclusively undertaken by responsible, honourable and serious-minded practitioners…. A legal practitioner must at all times consider himself as a minister in the hallowed temple of justice, who has a duty not only to his client but to the Court and the nation at large. He should be patriotic, honest and avoid any temptation to be swayed by momentary consideration or selfish interest.
In the scenario at hand, the appellants not yet done with their agenda to frustrate and rattle the lower Court, again filed another Motion No. MHC/2276M/2017 on the same 10th of November, 2017 seeking the same reliefs to wit:
a. An order of Court setting aside the partial execution of the judgment of the Honourable Court in this suit delivered on 21/11/2016.
b. An order staying the further execution of the judgment of the Honourable Court in this suit delivered on the “231”/11/2016 pending the determination of the appeal filed by the Applicant.
The motion was moved on 15th January, 2018 by the 1st appellant (J. T. Yaji, Esq.) and counsel for the respondents were heard also on the motion. The learned trial Judge in a very well-considered ruling delivered 19th January, 2018, dismissed the application for lacking merit. The learned trial Judge went further to award cost of N300,000.00 against the Chambers of T. J. Yaji and Co. made up of T. J. Yaji, Esq., T. T. Amaatimin, Esq., and T. Wuaze, Esq., for their reprehensible and contemptuous act while handling their client’s case. The 4th appellant was also ordered to pay cost of N200,000.00 in favour of the judgment creditor. (See pages 194 – 202 of the record of appeal).
Now to answer the question whether or not the entire proceedings before the lower Court and the ruling in motion no. MHC/2276M/2017 are not a nullity for lack of fair hearing and obtained without jurisdiction, I need to state clearly that all Courts including the lower Court, owe it as a duty to itself to guard its integrity jealously. The Courts are endowed with unfettered powers to control its proceedings as well as prevent litigants and or their counsel from taking undue advantage of the Courts. In order to secure these powers, the Courts are armed with the inherent fiat to award costs against erring litigants and or their counsel. For an appeal against the exercise of such discretion to succeed, it must be shown by the appellant that there has been a wrongful exercise of the discretion in that the Court had acted under a mistake of law, or in disregard of principle, or under a misapprehension of the facts, or has taken into account irrelevant matters, or on the ground that injustice will arise. See Snig (Nig) Ltd. vs. Wema Bank Plc. (2019) All FWLR Pt. 981, pg. 817, 813-814, paras. G-F; Odutola vs. Kayode (1994) 2 NWLR Pt. 324, pg. 1; and Alhassan vs. F.G.N. (2010) LPELR-3707.
It is clear from the records of the Court that the appellants vide the 2nd appellant, were in Court on 30th March, 2017 when the trial Court ruled on motion no. MHC/225M/2017 wherein the 1st and 2nd plaintiffs/applicants were seeking stay of the execution of the judgment of the trial Court in MHC/249/2011 delivered 21st November, 2016. The motion was dismissed. Part of the salient reasons why the motion was dismissed by the learned trial Judge include the fact that Exhibit ‘X’ which is the judgment of the lower Court sought to be stayed, has its suit number as MHC/249/2011 which is in tandem with the records of the Court. However, Exhibit ‘Y’ which is the Notice of Appeal purportedly filed by the applicants before the Court of appeal, Makurdi on 7th February, 2017 is in respect of suit no. MHC/249/2016. This is to say that their Notice of Appeal (Exhibit ‘Y’) is in respect of a different suit with the No. MHC/249/2016 or even a non-existent suit, as opposed to suit No. MHC/249/2011 duly determined by the lower Court.
Above all being a public document, Exhibit ‘Y’ was not certified to be a true copy as required by the provisions of Sections 102, read communally with Sections 104 and 105 of the Evidence Act, 2011, thereby impugning the integrity of the document. Now, annexed to the counter-affidavit of the judgment creditor/respondent are Exhibits ‘A’ and ‘B’ being certified true copies of the Writ of Possession and Report of Execution respectively. Both Exhibits show clearly that judgment in suit no. MHC/249/2011 was duly executed on 12th January, 2017 to the knowledge of the judgment debtors and yet they brought their frivolous application no. MHC/225M/17 amongst others. It is trite that an order of stay of execution cannot be granted where the judgment has already been executed.
The learned trial Judge was indubitably right in his observation and finding sin MHC/225M/17 thus:
There is no merit in the facts presented by the applicants to warrant this Court to exercise its discretion in their favour. The conduct of the applicants is despicable as commented on in the judgment and even now in the application at hand.
The applicants to say the least are unconscionable. The applicants cannot eat their cake and have it. In towing the path of justice and protecting the sanctity of the institution of the Court, no reasonable Tribunal will grant application brought by the appellants for stay. In all, the application lacks merit. It is refused and dismissed. [Underlining mine for emphasis]. (See pages 98 – 99 of the record of appeal).
In spite of the appellants’ awareness of the foregoing decision, wherein the 2nd appellant and by extension the 1st appellant, were in Court and representing the 1st judgment debtor/applicant at the delivery of the ruling, they still went a day after the ruling to file motion no. MHC/683M/2017 seeking an order to set aside the partial execution of the judgment of the Honourable Court. The motion which was filed 31st March, 2017 by the 3rd appellant was subsequently struck out as I earlier noted in this judgment. (See pages 72 – 92, 192 of the record of appeal). Appellants did not end here rather they went on to file more frivolous and annoying applications bordering on the same subject matter and having same parties. A true example of what can constitute an abuse of Court process. In the case of Otoko vs. Aderia (2018) All FWLR Pt. 937, pg. 1662 at 1667-1668, paras. G-B, where this Court per Garba, J.C.A. (as he then was now J.S.C.) had this to say:
I should also say that the learned counsel for the parties, who are the professionals and officers of the Court who represented the parties in the earlier and the later cases, bear the full responsibilities for the ugly and egregious situation involved in the abuse of the processes of the Court, Counsel should realize that it is their primary duty to protect and promote the integrity of the Courts in the discharge of their briefs from clients and that they are equally affected and infected with the embarrassment that results from the deliberate misuse, improper use or abuse of the processes of the Court to prevent the cause of justice in case they are filed before the Courts.
With the execution of the judgment in suit No. MHC/249/2011 on 12th January, 2017, the lower Court became functus officio on the subject matter. See Ihedioha vs. Okorocha (2018) All FWLR Pt. 960, pg. 1257, 1279, paras. A-B. In opposing Motion No. MHC/2276M/17. The appellants cannot in the face of their manifest reckless abuse of Court process, come up with the fickle and puerile defence of denial of fair hearing. The 1st – 3rd appellants tried to gain undue advantage of the Court by their persistent filing of frivolous application, even when it had become obvious to them that the lower Court was functus officio the judgment sought to be stayed or set aside as the case may be. In the circumstances of this case where the 1st – 3rd appellants tried to play hide and seek with the trial Court, they cannot be allowed to take cover under the defence of denial of fair hearing. The appellants had argued that the denial of the existence of the motion no. MHC/5047M/2016 (EXHIBIT “A”) was a deliberate prelude to the award of cost by the lower Court as the duty of an applicant ends upon filing of a process at the registry of the Court as he is not in control of what happens to the process or whether it is in the Court’s file which he has no access to. I say no to this line of argument employed by the appellants, reason being that both counsel and the Court are Ministers in the Temple of Justice. Counsel and the registry while working for the realization of justice in matters filed before the Courts, cooperate in ensuring that processes filed are intact and in the Court’s file.
I have at the end of the day seen nothing that sways me to hold that the entire proceedings before the lower Court and the ruling in motion no. MHC/2276M/2017 are a nullity for lack of fair hearing and obtained without jurisdiction. This is because the 1st, 2nd and 3rd appellants were at all material times, present and or represented in Court throughout the proceedings and up until the motion no. MHC/2276M/2017. Even on 19th January, 2018 when the vexed cost of N300,000.00 was awarded against the 1st – 3rd appellants on the one hand and N200,000.00 against the 4th appellant on the other hand, T. Wuaze, Esq., (3rd appellant) appeared for the judgment debtor/applicant id est the 4th appellant. Indeed when he was called upon by the learned trial Judge to address him on the issue of cost, he said thus:
T. Wuaze, Esq.: ……. As regards cost not (sic) humbly do not concede to same. We honestly believe to be reasonably pursuing/prosecuting the motions. As regards the motion the Court has just ruled upon, we brought it due to the fact of partial execution. We plead with Court to tamper justice with mercy.
The appellants were clearly offered the same level playing ground with the respondent. What they made of the chance is what has played out in the unassailable decision of the learned trial Court. The learned trial Court therefore rightly, effectively, legally, reasonably, judicially and judiciously awarded punitive costs against the 1st, 2nd and 3rd appellants for being abusive of the Court’s process. Issues (i) one and (ii) are hereby returned in favour of the respondent and against the appellants.
RESOLUTION OF ISSUE iii (THREE)
Whether the ruling of the lower Court awarding cost against the Appellants was warranted, reasonable, supported by law and fact reached judicially and judiciously.
Notwithstanding the fact that issue iii as it were has been determined in the preceding issues one and two, but I just need to address the contention of the appellant as contained in paragraph 3.2.5 at page 14 of their brief to the effect that when judgment was delivered in the suit that they were not in it and that the first ruling pertained to an application that was neither filed nor argued by the appellants.
Now a counsel need not be the one that handled a matter at the trial stage nor be present at the delivery of the ruling/decision on appeal, for him to assume representation at the appellate level. There is no questioning the fact that the appellants came into the matter at the appellate stage, be that as it may, the record of proceedings at the trial Court together with the judgment appealed against are there for use by a diligent and serious minded counsel in pursuit of his appeal. Above all, a counsel does not file an application for stay of execution of a judgment without a pending appeal. As I stated earlier in this judgment, the appellants vide the 2nd appellant, were in Court on 30th March, 2017 when the trial Court ruled on motion no. MHC/225M/2017. Their appearance on that day was for the 1st judgment debtor/applicant wherein they were seeking stay of the execution of the judgment of the trial Court in MHC/249/2011 delivered 21st November, 2016. The appellants’ perseverance on filing frivolous motions upon motions was simply aimed at wasting the time of the lower Court. Appellants also made an input on the issue of cost before the same was rightly awarded against them. Issue iii (three) without much ado is resolved in favour of the respondent and against the appellants.
RESOLUTION OF ISSUE IV (FOUR)
Whether the lower Court was right to have held the existence of a pending application to be within the peculiar knowledge of counsel or whether it is the duty of the Appellants to bring the existence of the application to the attention of the Court.
I need not expend time on this issue. I just want to state that it does not add value to the substance of the appeal. More so as the particulars of the ground of appeal only stated the obvious which is that, the duty of the appellants and indeed that of any applicant who has filed a motion for determination is not expected by law or otherwise to extend to filing of the process in the Court’s file. The learned trial Court did not need motion no. MHC/5047M/2016 to award cost against the appellants. Its existence had no probative effect on the order for cost as made by the lower Court against the appellants. The issue is thus resolved in favour of the respondent and against the appellants.
As it is and as all the four issues distilled for determination are resolved in favour of the respondent and against the appellants, it follows that the appeal is devoid of merit. The appeal is therefore dismissed. To this end, the judgment of the High Court of Benue State per Hon. Justice M. A. Ikpambese, J., in suit no. MHC/249/2011, and especially in motion no. MHC/2276M/2017 delivered 19th January, 2018, is hereby affirmed.
Cost assessed and fixed at N80,000.00 is awarded in favour of the respondent and against all the appellants.
Appeal is dismissed.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in draft, the lead judgment just delivered by my noble brother, Hon. Justice C. I. Jombo-Ofo, JCA and I am in total agreement with his reasoning and conclusion that the appeal is unmeritorious and same is hereby dismissed. The judgment of the High Court of Benue State delivered by Hon. Justice M. A. Ikpambese on the 19th January, 2018 is hereby affirmed.
I abide by the order as to costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, C. IFEOMA JOMBO-OFO, JCA and I am in total agreement with the reasoning and conclusion arrived at. My Lord in succinct and concise manner resolved the issues donated for resolution in the appeal. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
My Lord in very elaborate and exhaustive manner dealt with the four issues raised by parties, there is no room for any further elucidation. I therefore adopt the judgment as mine and also dismissed the appeal and abide by the orders made therein.
Appearances:
T. Pusa, Esq. For Appellant(s)
F. T. Anongo, Esq. with him, Vershima Akaangee, Esq. For Respondent(s)