CHIBROS AGENT STORES LTD & ANOR v. GTB & ANOR (2022)

CHIBROS AGENT STORES LTD & ANOR v. GTB & ANOR

(2022)LCN/16262(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Monday, May 16, 2022

CA/EK/94/2020

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Abdul-Azeez Waziri Justice of the Court of Appeal

Between

1. CHIBROS AGENT STORES LIMITED 2. CHUKWUEMEKA AGU APPELANT(S)

And

1. GUARANTY TRUST BANK PLC 2. RESORT SAVINGS AND LOANS PLC RESPONDENT(S)

RATIO:

WHAT CONSTITUTES AN ABUSE OF COURT PROCESSES

Counsel cited the cases of Mrs. F. M. Saraki & Anor. V. N. A. B. Kotoye (1992) LPELR-3016 (SC) and Okorodudu V. Okoromadu (1977) 3 SC 21, in aid of what constitutes an abuse of Court process, and argued that there is no basis for qualifying the matter before the lower Court as an abuse of Court process in the face of an earlier decision, as there is no evidence of the existence of any matter instituted against the Appellants and/or the 2nd Respondent for possession of the house, the subject matter of the action before the lower Court as to constitute multiplicity of suit. Counsel cited the case of Madukolu & Ors. v. Nkemdilim (1962) 2 NSCC 374, 379-380 and also reproduced a citation in Charles Ejike & Ors. v. Nwakwesi Ifeadire & Ors (1998) LPELR-1064(SC). ABDUL-AZEEZ WAZIRI, J.C.A.

UNCONTROVERTED FACTS SHOULD BE BELIEVED AND ACCORDED FULL EVIDENTIAL VALUE

Ground five (5) is Omnibus ground which complains of evaluation of evidence and putting same on an imaginary scale of justice. In this case subject of appeal, by the Appellants at the trial Court, it was affidavit evidence that was placed before the trial Court by way of Originating Summons to which the Defendant now 2nd Respondent did not file a Counter-affidavit which made the affidavit in support of the Originating Summons uncontroverted and the trial Court had no option than to grant possession to the Claimant. The trial Court had this to say “I have considered the uncontroverted affidavit evidence before this Court together with the exhibits attached. The law is trite that uncontroverted facts should be believed and accorded full evidential value. From the available facts in the instant case which I have no reason to doubt, I hold the Claimants case is meritorious and succeeds. ABDUL-AZEEZ WAZIRI, J.C.A.

CHALLENGING THE JURISDICTION OF THE COURT

Counsel submitted that the grounds of appeal in the instant case are a challenge to the jurisdiction of the Court simpliciter and may not necessarily be derived from the judgment as the Court must first satisfy itself of its jurisdiction before such pronouncement can even be made. Counsel cited in aid the case of NDIC v. CBN (2002) 7 NWLR (Pt. 766) 272, 292. Counsel further submitted that even though the issue of joinder was not raised before the Courts below, to the extent that it borders on the issue of jurisdiction, particularly on the fact that the case was not initiated by due process of law and upon fulfillment of condition precedent to the exercise by the Court of its jurisdiction, it can be raised in this Court for the first time without leave. Counsel cited APGA v. Oye & Ors (2018) LPELR-45196 (SC); Alhaji Tajudeen Babatunde Hamzat & Anor v. Alhaji Salui Ireyemi Sanni & Ors (2015) LPELR-24302 (SC). Counsel stated that proceedings, no matter how well conducted without jurisdiction will be null and void, such proceedings will not have the recognition in legal parlance. He cited the case of Olubunmi Oladipo Oni v. Cadbury Nig. Plc. (2016) LPELR-26061. ABDUL-AZEEZ WAZIRI, J.C.A.

ABDUL-AZEEZ WAZIRI, J.C.A. (Delivering the Leading Judgment): This is an appeal that emanated from the judgment of the High Court of Justice Ado Ekiti in Suit No. HAD/103/2017 delivered on the 2nd day of February, 2018, Coram Judice: C.I. Akintayo (J).

The 1st Respondent herein was the Claimant at the trial Court while the 2nd Respondent was the defendant. The appellants herein sought for joinder at the trial Court and in considered ruling delivered, their application was dismissed and the originating summons was heard and determined on the 2nd day of February 2018. The judgment is contained on pages 136-137 of the records of appeal. The Appellants who could not appeal against the said non-joinder approached this Hon. Court to appeal against the said judgment as interested parties. In a considered ruling delivered by the Court of Appeal, Leave was accordingly granted to them. Consequent to this, the Appellants filed a Notice of Appeal dated and filed on the 6/12/2019 consisting five (5) grounds of appeal as herein under reproduced with their particulars of error in respect of Grounds 1-4 while the 5th ground of Appeal is the Omnibus ground.

The Five Grounds are herein reproduced below:
GROUND 1:
The learned trial Judge erred when he held that the defendant in further possession without the claimant’s license or consent hence should yield possession to the Respondent/Claimant.
PARTICULARS OF ERROR:
1. The Appellants in their application for joinder which was refused had informed the Court that it was the Appellant that put the defendant into the property.
2. The Appellants are the only ones that can vacate the defendants from the property and that the Appellants have had no cause to vacate the defendant.
3. The Appellants have argued in their motion for joinder that the Respondents are not entitled to the possession of the property as their claim of title is a subject of litigation in Suit No: HAD/112/2017.
4. The Judge ought to know that the Respondents cannot succeed just because the Defendant failed to defend the action but must prove their claim to possession which they have not done in this case having regard to the proceedings in suit No: HAD/112/2017 Between the Appellants and the Respondent which was already before the Court attached as Exhibits in the application joinder.
5. The refusal of the Court to critically evaluate affidavit evidence of the Respondent due to the fact that the defendant did not defend the action has resulted into a miscarriage of justice against the appellants.
GROUND 2:
The learned trial Judge erred in law when he refused to join the Appellants as co-defendants in the Suit No: HAD/103/2017 Between Guaranty Trust Bank Plc v. Resort Savings & Loans Plc. despite the fact that the Appellants established their interest in the property No. 72, Secretariat Road and that any decision the Court may give will affect their interest.
PARTICULARS OF ERROR:
1. A claimant ought to succeed on the strength of his case and not on the weakness or otherwise of the defence.
2. The Respondent/Claimant in the suit have not proved their title to the property to be entitled to possession particularly when the Appellants have deposed in their Affidavit in support of the application for joinder that the Respondent/Claimant are not entitled to possession of the property and this had been challenged in HAD/112/2017 between the Appellant and the Respondent but the learned trial Judge refused to join the Appellants and that this would result in Appellant application for proliferation of cases.
3. Even the stay of proceedings was refused by the Court and without allowing the Appellants to file a similar application at the Court of appeal in accordance with Order 6 Rule 3 the Court delivered its judgment thereby foreclosing the appellants from making similar application at the Court of appeal.
4. The decision of the Court to deliver judgment immediately after the refusal of the appellants/applicants’ application for stay of proceedings has denied the appellants of making a similar application to the Court of appeal which has resulted in denial of fair trial/hearing.
GROUND 3:
The trial Judge erred in law when he failed and refused to properly evaluate the affidavit evidence of the Respondent particularly Exhibit FS 5 which was a judgment obtained by the Appellant against the defendant in Suit No: HAD/103/2017 between Guaranty Trust Bank Plc. v. Resort and Savings & Loans Plc. hence agreed with the Respondents by giving vacant possession and this has resulted in a miscarriage of justice against the Appellant.

PARTICULARS OF ERROR:
1. The Appellant prior to the institution of Suit No. HAD/103/2017 between Guaranty Trust Bank Plc. v. Resort Savings & Loans Plc, the 2nd Appellant had instituted to recover possession of No. 72 Secretariat Road, Ado-Ekiti from Resort Savings & Loans Plc. in Suit No: HAD/99/2016 which the Court granted in a considered judgment.
2. However, the appellants and Resort Savings & Loans Plc. resolved their dispute after the judgment hence allowed Resort Savings & Loans Plc. to remain in the property.
3. The Respondent attached the said judgment in HAD/99/2016 as a ground for application for possession in its Originating summons stating that despite the judgment of the Court, the Resort Savings & Loans plc. failed and refused to vacate the property, that is the ground floor of the property No. 72, Secretariat Road, Ado-Ekiti.
4. In the Appellants application for joinder, the Appellants have deposed to the fact that it granted Report Savings and Loans Plc. to continue to occupy the property based on agreement subsequently agreed after the judgment.
5. If the Court had properly evaluated the evidence, the Court would have seen the Respondents’ craftiness in attaching the said judgment and would have seen that the Respondents did not establish their entitlement to possession.
GROUND 4:
The trial Judge erred in law when he assumed jurisdiction to determine and deliver judgment in this case as the suit is incompetent and an abuse of the Court’s process.
PARTICULARS OF ERROR
1. The appellants sued the Resort Savings & Loans Plc. for possession and got judgment in Suit No: HAD/99/2016 between Chukwuemeka Agu v. Savings and Loans.
2. The Respondent equally sued the Resort Savings & Loans Plc. for the same possession while the judgment in Suit No: HAD/99/2016 is still pending and yet to be executed.
3. The latter suit would definitely be an abuse as presently there are two (2) judgments of the same Court.
GROUND 5:
The judgment of the Court is against the weight of the pleadings and evidence.

The Record of Appeal was compiled and transmitted to this Honourable Court on 11/11/2020 and deemed properly compiled and transmitted on 23/3/2021. The Appellants’ Brief of Argument was duly settled by Perebo Pesta Monde, Esq dated and filed on the 28/1/2021, wherein he distilled two issues as arising for the determination of this appeal thus:
a) having regards to the circumstances of this case, whether the trial Court had jurisdiction to adjudicate on this matter for possession when possession had been already given to the 2nd Appellant by a Court of competent jurisdiction (grounds 4 & 5)
b) Having regards to the circumstances of this case, whether the issue of possession can be determined without joining the Appellants in this case and whether the non-joinder of the Appellants has not fundamentally affected the competence of this case (grounds 1, 2 and 3).

The 1st Respondent’s Brief of Argument was duly settled by Femi Sarumi Esq dated 30/9/2022 and deemed on the 15/2/2022, wherein he incorporated a preliminary objection and also crafted two issues as arising for the determination of this appeal thus:
1. Whether the lower Court properly evaluated the available Affidavit evidence placed before it by the parties in the case before granting possession to the Respondent (Grounds 1, 2, 3 and 5)
2. Whether the lower Court properly exercised jurisdiction in hearing and determining the matter (ground 4 of the grounds of Appeal)

ARGUMENTS ON THE PRELIMINARY OBJECTION:
Respondent Counsel opined that it is a well settled principle of law that Particulars of Error alleged in a Ground of Appeal are intended to highlight the complaint against the judgment on appeal and cited the case of Ogundare Osasona v. Oba Adetoyinbo Ajayi & Ors. (2004) LPELR-2790 (SC). Counsel submitted that when the competence of a ground is under attack as in this case, this Honourable Court is duty bound to see whether the ground of appeal reveals a misunderstanding by the lower Court of the law or a misapplication by it of the law to the facts already proved. Counsel cited in aid the case of Egwuoyibo Okoye v. Independent Electoral Commission (INEC) & Ors. (2010) LPELR-4728.

Counsel stated that the complaint in Ground 1 is the Particulars of Errors alleged therein, while Particulars 1 and 3 of the said Ground bothers on the Appellants’ application for joinder which was dismissed by the lower Court on 12th January, 2018, Particulars 2, 4 and 5 of the Particulars of Error bothers on SUIT: HAD/112/2017 between the Appellants and Resort Savings & Loans Plc. which did not arise from and does not have any nexus with the judgment of the lower Court.

Counsel further stated that in Ground 2, entire Particulars of Error bothers entirely on the Appellants application for joinder, which said application, by its dismissal, was no longer part of the consideration of the lower Court in the judgment of the subject matter of this appeal as the said Ground and its Particulars are not rooted in the judgment of the lower Court contrary to settled principles of law. On the issue of Grounds 3 and 4 and their Particulars of Error, counsel argued that the grounds are most incompetent, as the grounds and their Particulars are predicated essentially on SUIT: HAD/99/2016 between the Appellants and Resort Savings & Loans Plc. as the said matter and the judgment thereon were not raised before the trial Judge and not considered in the judgment the subject matter of this appeal.

Counsel submitted that a competent ground of appeal must be circumscribed by the issues in controversy arising from the judgment appealed against, as the grounds of appeal are the reasons why the decision is considered to be wrong by the aggrieved party and further submitted that where a ground of appeal arises from matters not touching on the real issues in controversy decided by the Court, or from the ratio of the decision appealed against, the ground is most incompetent and liable to be struck out. Counsel argued the Grounds of Appeal in contention in this appeal relates to the Joinder of the Appellants as Co-Respondents before the lower Court as opposed to possession which is the ratio for the decision, the subject matter of this appeal.

Counsel cited the case of Mercantile Bank of Nigeria Plc. & Anor. v. Linus Nwobodo (2005) 10/11 SCM, African Petroleum Plc. v. Adeniyi & Ors. (2011) LPELR-3642(CA), Bello v. Aruwa (1999) 8 NWLR (Pt. 615) 454, Metal Construction (WA) Ltd. v. Migliore (1990) 1 NWLR (Pt. 126) 299, Alhaji Sule Haruna Tahir & Anor v. Bank of the North Ltd. (2006) LPELR-11654(CA), Co-operative & Commerce Bank Plc. & Anor v. Jonah Dan Okoro Ekperi (2007) LPELR-876(SC).

Counsel submitted that the two issues formulated from the incompetent grounds of appeal are most incompetent and liable to be struck out; because when a ground of appeal is incompetent, any issue for determination based on the incompetent ground goes to no issue.

In response to this preliminary objection, the Appellants filed his Reply Brief on the 8th of March, 2022 deemed filed 15th March, 2022 settled by Perebo Pesta Monde Esq. argued that the Respondents’ objection is misconceived as it represents a gross misapprehension of the Appellants’ appeal, as Ground 1, 2, 3 and 4 are grounds challenging the judgment on the basis of non-joinder of a necessary party without whose presence the Court cannot effectively and comprehensively determine possession as at the time the Court was ceased of the matter, i.e. the 2nd Respondent in was no longer in possession based on the documents placed before the Court even by the 1st Respondent.

Counsel argued that the Court lacked jurisdiction to adjudicate on the case as it was constituted for lack of non-joinder of a vital and necessary party who was in law in possession. It is counsel’s submission that the Respondent sued the wrong person who no longer was in occupation based on the judgment in Suit No: HAD/99/2016 between Agu Chukwuemeka v. Resort Savings and Loans Plc. (the 2nd Respondent). Counsel cited Madukolu v. Nkemdilim (1962) 2 SCNLR 341. Counsel further argued that a non-joinder of a necessary party in a case amounts to lack of jurisdiction on the part of the Court or Tribunal to determine the suit. Counsel cited the cases of ADC v Bello (2017) All FWLR (Pt. 876) 108 AT 126, APC v. Uduji (2020) All FWLR (Pt. 1065) 1 AT 24, Garuba v. Akande (2020) All FWLR (Pt. 1046) 975 CA and Balogun v. APC (2020) All FWLR (1036) 626 CA.

Counsel stated that the 2nd Appellant was in possession dejure and defacto by the judgment in Suit No: HAD/99/2016 between Mr. Agu Chukwuemeka v. Resort Savings and Loans Plc, and at the time, the 1st Respondent took out a summons for possession, the 2nd Respondent was no longer in possession, as, the judgment had already been executed and repossessed by the 2nd Appellant hence non-joinder of the 2nd Appellant had rendered the Suit No: HAD/103/2017 between the 1st Respondent and the 2nd Respondent incompetent ab initio and the Court lacked the jurisdiction to adjudicate on the case without jurisdiction for failure to join a necessary party.

He stated that the 1st Respondent was not even entitled to possession as its exercise of power of sale has been challenged in Suit No: HAD/112/2017 between Chibros Agent Stores Ltd v. Guaranty Trust Bank Pic, which was pending as at the time the 1st Respondent was pushing for possession to their knowledge, as it was on this basis that this Honourable Court granted the Appellants leave to appeal as interested parties in Appeal No: CA/EK/29M/2019 between Chibros Agent Stores Ltd & Anor v. Guaranty Trust Bank Plc & Anor (unreported) delivered on 3rd day of December, 2019. Counsel noted that the ownership of the property had not changed hands as the 1st Respondent wrongly and illegally exercised its purported right of sale without regards to the fact that there was no debt due to the 1st Respondent and this was being challenged with an interlocutory injunction already granted against the 1st Respondent by the High Court of Ekiti State which the 1st Respondent did not appeal till date. Counsel submitted that it was a shrewd and deceptive tactics of the 1st Respondent to gain undue advantage over the Appellants by taking the wrong person to Court who had already been dispossessed and had left the jurisdiction of the Court to Lagos by pasting the Court’s processes on the property and displaying a null and void judgment to gain undue advantage when the Appellants are already challenging the illegality perpetrated by the 1st Respondent in Suit No: HAD/112/2017 between the Appellants and the 1st Respondent over the account and the mortgage.

(Assuming the Grounds of Appeal are competent and the preliminary objection struck out, the issues for determination of the appeal are discussed below);
The Appellants’ brief of argument was settled by Perebo Pesta Monde, Esq dated and filed 28th January; 2021 deemed filed 23rd March, 2021. The Appellants filed his Reply Brief on the 8th of March, 2022 deemed filed 15th March, 2022. The Appellants in his brief identified two issues for the determination of this appeal thus:
1. Having regards to the circumstances of this case whether the trial Court had Jurisdiction to adjudicate on this matter for possession when possession had been already given to the 2nd Appellant by a Court of competent jurisdiction. (GROUND 4 & 5).
2. Having regards to the circumstances of this case whether the issue of possession can be determined without joining the Appellants in this case and whether the non-joining of the Appellants has not fundamentally affected the competence of this case. (GROUND 1, 2 & 3).

APPELLANTS’ ARGUMENTS ON ISSUE ONE
In arguing the Appellants’ issue one, Counsel submitted that it was settled that jurisdiction is the life wire of a suit and once a Court lacks jurisdiction to hear a matter, no matter how well conducted such a case, any decision emanating from such a case will amount to a nullity. He cited C.B.N & Ors v. Okojie (2015) 6 MJSC (Pt. 1) 1 AT 18. Counsel stated that 1st Respondent sued the 2nd Respondent at the trial Court in order to recover possession of the ground floor of the property belonging to the 2nd Appellant, the 2nd Respondent was a tenant of the 2nd Appellant in the said property and when the 2nd Respondent defaulted in payment of her rent to the 2nd Appellant, the 2nd Appellant sued the 2nd Respondent at the Ekiti State High Court in Suit No: HAD/99/2016 Wherein in a considered judgment the 2nd Respondent was ordered to pay her outstanding rent and vacate the Appellants’ property and submitted that a trial Court of the same co-ordinate jurisdiction cannot re-litigate on the same subject matter as it will amount to an abuse of Court processes. Counsel further submitted that possession had already been given to the 2nd Appellant and suing the 2nd Respondent by the 1st Respondent for possession was suing the wrong party as the 2nd Respondent was never in possession again neither was he the bonafide owner of the property he was sued in respect of, as he had already been disposed by virtue of the judgment in suit No: HAD/99/2016.

Counsel stated that the 2nd Appellant had earlier sued the 1st Respondent in Suit No. HAD/112/2017 between Chibros Agent Stores Ltd & Anor v. Guaranty Trust Bank Plc. claiming several declarative and injunctive reliefs including general and aggravated damages and for the preservation of the properties used as securities as well as to secure their financial future, as the said suit is still pending and the pendency of this suit was brought to the notice of the trial Court. Counsel argued that the trial Court should have joined the Appellants and consolidated both suits but the trial Court refused the application for joinder and determined the suit without jurisdiction for effective and complete adjudication of all issues. Counsel argued that the judgment is a nullity based on the fact that the proper party was not before the Court based on the judgment in Suit No: HAD/99/2016 between Chukwuemeka Agu v. Resort Savings & Loans Plc which had terminated the tenancy and had given possession to the 2nd Appellant.

1ST RESPONDENT’S ARGUMENTS ON ISSUE ONE
In response to this argument 1st Respondent’s Counsel argued that the lower Court entered judgment in favour of the 1st Respondent based on the uncontroverted evidence placed before it. Counsel cited the case of Owunari Long-John & Ors. v. Chief Crawford N. Blakk (1998) LPELR-1791 (SC), and stated that in the absence of a Counter-Affidavit duly deposed to by the Defendant in the matter the lower Court rightly granted possession to the 1st Respondent.

Counsel submitted that the exercise of discretion to join the Appellants or otherwise is not meant for this appeal, as once the lower Court had exercised its discretion in dismissing the application for joinder, the proper forum for ventilating their grievances against the order is by filing an appeal against the order of dismissal, and the Appellants, having failed to take the proper step, cannot be heard to raise issues as to their joinder or the documents they filed in presenting their application for joinder. Counsel argued that the Affidavit filed by the Appellants in support of their application for joinder to the effect that the 2nd Respondent in this appeal was their former tenant is of no moment as the main application has been dismissed and the Appellants having argued that they are the owners of the property, the subject matter in contention and possession of same is only a function of the redemption of their equity under the Legal Mortgage they created in favour of the 1st Respondent, having failed to redeem their equity and the 1st Respondent having exercised its power of sale inherent in the Legal Mortgage, the Appellants have no right and possession over the property.

APPELLANTS’ ARGUMENTS ON ISSUE TWO
Counsel submitted that the Appellants placed sufficient and credible material before the trial Court to enable them to be joined as co-defendants in the trial Court, as it is trite that a party with an application for joinder must show that he is a necessary party and that the subject matter of the suit cannot be effectively and effectually decided without making him a party. Counsel cited the case of C.B.N V. Interstella Communications Ltd (2018) All FWLR (Pt.930) 442 AT 548.

Counsel stated that the Appellants who are the owners of the property had sued the 1st Respondent in Suit No: HAD/112/2017 between Chibros Agent Stores Ltd & Anor v. Guaranty Trust Bank Plc to preserve and protect their interest, that the said suit is still pending, only for the Appellants to see Court processes of the 1st Respondent suing the 2nd Respondent pasted on the gate of the property. The Appellants had no other choice than to bring an application for joinder in order to protect their property as the 2nd Respondent was no longer in possession of the property. Counsel argued that the Appellants being the bonafide owners of the property which is the subject matter of the suit at the trial Court are necessary, aggrieved and interested parties and the trial Court was in total error not to have joined them to the suit. Counsel cited the case of Okadigbo v. Chidi (2015) All FWLR (Pt. 972) 1650 AT 1674-1975 para G-B and itemized the necessary orders with regards joinder as/of a party and further argued that the trial Court did not consider any of the stated principles before refusing to join the Appellants as co-defendants at the trial Court. Counsel also cited in aid the cases of Ngige v. Obi (2006) All FWLR (Pt. 330) 1043 AT 1078 para A-B, A.G Federation v. A. G Abia (2001) 11 NWLR (Pt. 725) 689 AT 745, Ijebu Ode L.G.C v. Segun (2005) All FWLR (Pt. 253) 635 AT 65.

Counsel submitted that the Appellants had a right and interest in the trial and deserved to be joined and heard and cited the cases of Dahiru v. A.P.C (2017) All FWLR (Pt. 872) 1407 AT 1437 para C, and reproduced citations in A.D.C v. Bello (2017) All FWLR (Pt. 876) 108 AT 125- 126. Counsels further submitted that this Court rightly observed and held in Appeal Number CA/EK/29M/2019 between Chibros Agent Stores Ltd & Anor v. Guaranty Trust Bank Plc & Anor (unreported) ruling delivered on 3rd day of December, 2019 recognizing the interest of the Appellants. Counsel therefore submitted that necessary parties were not before the Court to effectively and completely determine the issues of possession sought for by the 1st Respondent at the trial Court and urged this Court to allow this appeal, set aside the judgment of the lower Court and dismiss/strike out the suit in its entirety for lack of jurisdiction or in its alternative join the Appellants as defendants in the suit and order a retrial.

RESPONDENTS’ ARGUMENTS ON ISSUE TWO
In response to this issue of jurisdiction, Counsel argued that the lower Court properly exercised jurisdiction in the hearing and determination of the matter before it, as it is on record that suit: HAD/99/2016: MR. AGU CHUKWUEMEKA v. RESORT SAVINGS AND LOANS PLC. was taken out by Mr. Agu Chukwuemeka against Resort Savings & Loans Plc, in his personal capacity as the owner of the property prior to the exercise of the Respondent’s power of sale, and as neither the 1st Appellant nor the Respondent is a party to the suit they could not have been bound by the judgment in the said case.

Counsel therefore urged this Court to resolve this issue in favour of the 1st Respondent by holding that the lower Court had jurisdiction to hear the matter and that the matter was not an abuse of process and to further dismiss this appeal and affirm the judgment of the lower Court.

Having set out the issues and arguments canvassed by the respective learned Counsel to the parties in this appeal, I am of the firm view that the issues crafted for determination by the Respondents would serve as my guide in the resolution of this appeal one way or the other.

Before I proceed to consider the issues for determination, should the need arise, it is pertinent to look at the objection to the competence of the five grounds of appeal filed by the Appellants. The 1st Respondent in his Notice of Preliminary Objection dated 7/6/22, but filed on the 8/2/22 incorporated at paragraph 2.00 page 5 of the brief of argument wherein it complained that the five grounds of appeal contained in the Notice of Appeal did not arise from the decision appealed against. This the Appellants have maintained otherwise. I have earlier on before now set out the five grounds of appeal in the course of this judgment which I do not intend to reproduce, but in the event it becomes necessary I should refer to the said grounds of appeal. It is hornbook law that grounds of appeal are not formulated in nubibus, but they must arise from the decision appealed against.

I have carefully scrutinized the five grounds of appeal filed by the Appellants in this appeal. Ground one (1) particulars 1 and 3 of the said ground bothers on the Appellants application for joinder which the trial Court dismissed on the 12th January, 2018, while particulars of error bother on Suit No. HAD/112/2017 between the Appellants herein and Resort Savings & Loans Plc now 2nd Respondent which has no semblance with the judgment, subject of this appeal. I am on one with the submission of learned Counsel to the 1st Respondent that Ground one (1) is not noted in the judgment of the trial Court as alluded by the Appellants with regards to ground two (2) and the entire particulars of error bothers entirely on Appellants’ application for joinder which the trial Court refused so it cannot part of the judgment subject of this appeal.

On grounds 3 and 4 and their particulars, they are essentially or substantially on Suit No. HAD/99[2016 and not suit No. HAD/103/2017. This was not raised before the trial Court and duly considered in this appeal.

The Claimant is hereby ordered to recover possession of the ground floor of the property situate, lying and being and known as 72, Secretariat Road, Ado-Ekiti, Ekiti State of Nigeria on the ground that it is entitled to possession and that the Defendant is in further possession without the Claimant’s license or consent.”

On the whole, the preliminary objection has merit and ought to be sustained. The appeal is accordingly struck out.

With striking out of the appeal, this Court would have ended up the consideration of the two conflated issues but being an intermediate Court, it is necessary for me to consider the merit of the appeal based on the two issues crafted.

ON ISSUE ONE (1)
Learned Counsel for the Appellants attacked the jurisdiction of the trial Court in conducting and determining the case now subject of appeal and to that extent everything done is/was a nullity. He called in aid judicial authorities to buttress his argument. He contended that the trial Court ought to have made the Appellants as parties to the suit subject of this appeal.

This submission had been countered by the 1st Respondent’s Counsel contending that there was uncontroverted evidence placed before the trial Court. He further posited that the issue of joinder had already been determined by the trial Court which the Appellants herein did not appeal against.

I have carefully considered the arguments canvassed as well as the authorities being relied upon by the line of divide. I am of the humble stand that the Appellants herein cannot raise the issue of non-joinder before this Hon. Court as same issue had been determined by the trial Court to which the Appellants did not deem it necessary to appeal after the ruling delivered against them. I am in total agreement with the argument of learned Counsel for the 1st Respondent, this Court is not a proper Court to ventilate the issue of non-joinder as the judgment subject of this appeal is in respect of possession of the property under Mortgage of which the 1st Respondent had the authority and power of sale. Consequently, issue one stands resolved against the Appellants and in favour of the 1st Respondent.

ON ISSUE TWO (2)
It is the contention of the Appellants and credible material before the Hon. Court to entitle them to be joined as co-defendants in the trial Court. He called in aid numerous judicial authorities in support of his submissions. He further argued on the need for the Appellants to be made parties at the trial Court. In contrawise, the 1st Respondent submitted that the trial Court was on a right track citing relevant judicial authorities in support of his submission.

I have carefully considered the two sides of the coin and I am of the humble view that the trial Court properly exercised its jurisdiction in the hearing and determination of the matter before it. In Suit No. HAD/99/2016, it was between Mr. Agu Chukwuemeka vs. Resort Savings and Loans Plc. was instituted by Agu Chukwuemeka against Resort Savings and Loans Plc. in his personal capacity as the owner of the property prior to the exercise of the Respondents’ power of sale and that neither the 1st Appellant nor the Respondent was a party to the suit as such they could not have been bound by the judgment subject of this appeal. Accordingly, this issue also fails and is resolved against the Appellants and in favour of the 1st Respondent.

On the whole, this appeal is devoid of any merit and ought to be dismissed. Accordingly, this case is hereby dismissed.

THERESA NGOLIKA ORJI ABADUA, J.C.A.: I agree.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, ABDUL-AZEEZ WAZIRI (JCA).

I am in full agreement with the exquisite reasoning and the conclusion therein which I find unassailable.
I agree there is merit in the preliminary objection raised by the 1st Respondent and that the appeal should be struck out. Grounds of appeal must flow from the ratio of the judgment appealed against. See OLONADE & ANOR. V. SOWEMIMO (2014) LPELR-22914(SC).
The grounds of appeal are therefore incompetent having not been drawn from the ratio of the judgment appealed against. They are liable to be struck out. There being no competent notice of appeal surviving the appeal itself it should justifiably be struck out.

I also agree with the beautiful resolution of the issues done in the leading judgment in the alternative as an intermediate Court.

I abide by the consequential orders in the leading judgment in the final analysis.

Appearances:

P.P. Monde, Esq., with him, O.S. Uzochukwu, Esq. For Appellant(s)

Femi Sarumi, Esq. – for 1st Respondents
2nd Respondent not represented. For Respondent(s)