OGUEBIE v. BASSEY & ANOR CITATION: (2018) LPELR-46129(CA) In the Court of Appeal In the Calabar Judicial Division Holden at Calabar ON TUESDAY, 23RD OCTOBER, 2018 Suit No: CA/C/156/2011 Before Their Lordships: MOJEED ADEKUNLE OWOADE Justice, Court of Appeal OBANDE FESTUS OGBUINYA Justice, Court of Appeal YARGATA BYENCHIT NIMPAR Justice, Court of Appeal Between MRS. JULIE NDUBUISI OGUEBIE - Appellant(s) And 1. MR. EMMANUEL OKON BASSEY 2. MR. NDUBUISI OGUEBIE - Respondent(s) RATIO DECIDENDI (2018) LPELR-46129(CA)
43
Embed
(2018) LPELR-46129(CA)lawpavilionpersonal.com/ipad/books/46129.pdf · OBANDE FESTUS OGBUINYA Justice, Court of Appeal YARGATA BYENCHIT NIMPAR Justice, Court of Appeal Between MRS.
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
OGUEBIE v. BASSEY & ANOR
CITATION: (2018) LPELR-46129(CA)
In the Court of AppealIn the Calabar Judicial Division
Holden at Calabar
ON TUESDAY, 23RD OCTOBER, 2018Suit No: CA/C/156/2011
Before Their Lordships:
MOJEED ADEKUNLE OWOADE Justice, Court of AppealOBANDE FESTUS OGBUINYA Justice, Court of AppealYARGATA BYENCHIT NIMPAR Justice, Court of Appeal
BetweenMRS. JULIE NDUBUISI OGUEBIE - Appellant(s)
And1. MR. EMMANUEL OKON BASSEY2. MR. NDUBUISI OGUEBIE - Respondent(s)
RATIO DECIDENDI
(201
8) LP
ELR-46
129(
CA)
1. ACTION - PROPER/DESIRABLE/NECESSARY PARTY(IES): Effect of not bringing a properparty before the Court"Put clearly, the appellant was not a necessary party to the matter. In law, a necessaryparty to a proceeding, distinct from a desirable party, is a person whose presence andparticipation is essential for an effective and compete determination of claim before a Court,see Green v. Green (2001) FWLR (Pt. 76) 795; Babayeju v. Ashamu (1998) 9 NWLR (Pt. 567)546; Cotecna Int'l Ltd v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346; P.W.T (Nig)Ltd. v. J.B.O. Int'l (2010) 19 NWLR (Pt. 1226) 1; ADC v. Bello (2017) 1 NWLR (Pt. 1545) 112;G.W.V.S. (Nig.) Ltd. v. Nigeria LNG Ltd. (2017) 8 NWLR (Pt. 1568) 381.In so far as the Appellant was an improper party to the suit, the lower Court was drained ofthe requisite jurisdiction to entertain it as it affected her only. The consequence is farreaching. The order the lower Court made against the appellant is well-rooted in nullity. Inthe sight of the law, nullity denotes: "Nothing; no proceeding; an act or proceeding in a casewhich the opposite party may treat as though it had not taken place; or which hasabsolutely no legal force or effect", see Lasisi v. State (2013) 12 NWLR (Pt. 1367) 133 at146, per Ngwuta JSC, Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Mamman v. Hajo(2016) 8 NWLR (Pt. 1575) 411. Nullity possesses caustic consequences in law. If a decisionor proceeding is infested with nullity, it is void and taken as it was never given or made, seeOkoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC(2010) 8 NWLR (Pt. 1196) 343. Moreover, such a decision or proceeding, in the domain ofthe law, donates no enforceable right on its beneficiary party who possesses it nor does itimpose any obligations on its victim party, see Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998)628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The bounden duty of a Court isto set aside a null order ex debito justitiae in that it does not exist in law, see Mamman v.Hajo (supra); N.A.C.B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v.Owoeye (2017) 12 NWLR (Pt. 1580) 364.For the sake of completeness and clarity, having found, after due consultation with the law,that the appellant was an improper party to the suit, all the castigations which the appellantrained against the lower Court's evaluation of the affidavit evidence before it pale intoinsignificance. In the same vein, the appellant's allegation of erosion of her inviolable rightto fair hearing by the lower Court comes to naught and unworthy of consideration.As long as the lower Court's decision over the Appellant was hostile to the law, it must bemowed down by the unbiased judicial sword of this Court."Per OGBUINYA, J.C.A. (Pp. 29-31,Paras. A-B) - read in context
2. APPEAL - GROUND(S) OF APPEAL: Nature and purpose of grounds of appeal"Indisputably, a ground of appeal is the focus of an appeal. It denotes the totality of thereasons why a decision complained of is considered wrong by an appealing party, seeEhinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357; Ugboaja v. Akintoye-Sowemimo (2008) 16NWLR (Pt. 113) 278; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Labour Party v. Bello(2017) 2 NWLR (Pt. 1548) 145; Ngere v. Okuruket 'XIV' (2017) 5 NWLR (Pt. 1559) 440;Ifaramoye v. State (2017) 8 NWLR (Pt. 1568) 457. It binds the Courts and parties, see Udomv. Umana (No. 1) 2016) 12 NWLR (Pt. 1526) 179. Its essence is to notify an opponent,usually a respondent, the nature of the adversary's, invariably an appellant's, complaintsagainst a decision, see Abe v. Unilorin (supra); Aderounmu v. Olowu (2000) 4 NWLR (Pt.652) 253; Lagos State v. Sarhuna (2009) All FWLR (Pt. 456) 1617; Ladoja v. Ajimobi (2016)10 NWLR (Pt. 1519) 87; Ogboru v. Okowa (2016) 11 NWLR (Pt. 1522) 84; Achonu v. Okuwobi(2017) 14 NWLR (Pt. 1584) 142; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; Kente v.Ishaku (2017) 15 NWLR (Pt. 1587) 94; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; GTBPlc. v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181; Nweke v. Unizik, Awka (2017) 18NWLR (Pt. 1598) 454; Atanda v. Comm., L & H., Kwara State (2018) 1 NWLR (Pt. 1599)32."Per OGBUINYA, J.C.A. (Pp. 8-9, Paras. B-C) - read in context
(201
8) LP
ELR-46
129(
CA)
3. APPEAL - GROUND(S) OF APPEAL: Whether a ground of appeal must be related to theratio decidendi of the judgment appealed against"It is trite, that a ground of appeal, which is the nucleus of every appeal, must attack anddisclose nexus with a decision that is the subject of appeal. In the sight of the law, a groundof appeal must be linked to and question a ratio decidendi, not an obiter dictum, of ajudgment. Any ground of appeal formulated in nubibus runs foul of this cardinal rule of lawand risks being struck out on account of incompetence, see Adelekan v. ECU-Line NV (2006)12 NWLR (Pt. 993) 333; Balonwu v. Governor of Anambra State (2008) 16 NWLR (Pt. 1113)236; Lawrence V. A.-G; Fed. (2008) 6 NWLR (Pt. 1084) 484; Okonobor V.D.E & S.T. Co. Ltd(2010) 17 NWLR (Pt. 1221) 181; Odunukwe v. Ofomata (supra); FBN Plc. v. TSA Ind. Ltd.(2010) 15 NWLR (Pt. 1216) 247; D.T.T. Ent. (Nig.) Co. Ltd v. Busari (2011) 8 NWLR (Pt. 1249)387; Garuba v. Omokhodion (2011) 15 NWLR (Pt. 1269) 145; Abe v. Unilorin (supra);Oleksandr v. Lonestar Drilling Co. Ltd. (2015) 9 NWLR (Pt. 1464) 337; Ngere v. Okuruket'XIV' (supra); Chiadi v. Aggo (2018) 2 NWLR (Pt. 1603) 175; Isaac v. Imasuen (2016) 7 NWLR(Pt. 1511) 250; Okafor v. Abumofuani (2016) 12 NWLR (Pt. 1525) 117; Udom v. Umana(No.1) (2016) 12 NWLR (Pt. 1526) 179."Per OGBUINYA, J.C.A. (Pp. 9-10, Paras. D-D) - read incontext
(201
8) LP
ELR-46
129(
CA)
4. APPEAL - GROUND(S) OF APPEAL: Whether where error(s) of law or misdirection is madea ground of appeal, the particulars of the error of law or misdirection must be given"That takes me to the settlement of the objector's second grouse, id est, that grounds ii andiii have no particulars. In this wise, the provision of Order 7 Rule 2(2) of the Court of AppealRules 2016 comes in handy for the consideration of the stubborn point. It reads:(2) Where a ground of appeal alleges misdirection or error in law, the particulars and thenature of the misdirection or error shall be clearly stated.In the eyes of the law, particulars of error are meant to throw light on the ground/complaintagainst the judgment under attack. In practice, they are set out independently after eachground of appeal. They can, also, be buried in the body of the ground without any injury tothe law. A ground of appeal does not require an army of particulars. One particular is potentenough to sustain an appeal. Indeed, they may be dispensed with once the grounds areclear, lucid and precise, see Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Osasona v. Ajayi(2004) 14 NWLR (Pt. 894) 537; UBA Ltd. v. Achoru (1990) 6 NWLR (Pt. 156) 154; Adekeye v.Adesina (2010) 18 NWLR (Pt. 1225) 449; Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (2011) 5 NWLR(Pt. 1239) 95; Abe v. Unilorin (supra); Oke v. Mimiko (No.2) (2014) 1 NWLR (Pt. 1388) 332.A clinical look at grounds ii, x-rayed earlier, reveals that it has no particularsattached/appurtenant to it. Put differently, it offends the provision of Order 7 Rule 2(2) ofthe Court of Appeal Rules, 2016.However, the case law has endorsed the point that not every contravention of the provisionwill render a ground incompetent. This is borne out of the Court's desire to crucifytechnicality on the altar of substantial justice. In this perspective, where sufficientparticulars can be gleaned from a ground of appeal and the adversary is not misled, it is notincompetent on the footing of want of particulars, see Best (Nig.) Ltd. v. B. H. (Nig.) Ltd.(2011) 5 NWLR (Pt. 1239) 95; Ameen v. Amao (2013) 9 NWLR (Pt. 1358) 159; Adejumo v.Olawaiye (2014) 12 NWLR (Pt. 1421) 252; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482)205, Waziri v. Geidam (2016) 11 NWLR (Pt. 1523) 230; Chiadi v. Aggo (supra). A microscopicexamination of ground ii, which is disobedient to ambiguity, discloses that the particularsare incorporated therein. Thus, the ground has conveyed, with sufficient notice andinformation to the objector and this Court, the crux of the appellant's complaints against thelower Court's decision. The reason, inter alia, for the appeal is encased in the ground ii.Thus, the enabling provisions of the Court of Appeal Rules have been fulfilled. The law doesnot compel the Courts to brand ground(s) of appeal incompetent on the slightest infractionof the rules of Courts. It is not the intent and spirit of the rules of Court, which are designedto ensure fairness to litigating parties, to shut out an appellant from ventilating hiscomplaints in an appeal, see Mil. Admin. Benue State v. Ulegede (2001) 17 NWLR (Pt. 731)194; Aderounmu v. Olowu (supra); Abe v. Unilorin (supra); The Minister of Petroleum & Min.Resources v. Expo Shipping Line (Nig.) Ltd. (2010) 12 NWLR (Pt. 1208) 261. The objector, inhis infinite wisdom, starved this Court on how he was misled by the ground ii on the footingof lack of particulars. On the premise of the foregoing, I dishonour the objector's incitinginvitation to expel ground ii from the appeal on the reason of absence of particulars andtransgression of the provision of Order 7 Rule 2(2) of the Court of Appeal Rules, 2016."PerOGBUINYA, J.C.A. (Pp. 11-14, Paras. E-E) - read in context
(201
8) LP
ELR-46
129(
CA)
5. APPEAL - OMNIBUS GROUND OF APPEAL: Import and effect of the omnibus ground ofappeal"It remains to settle ground iii. It had been displayed earlier in this judgment. It is a classicexemplification of an omnibus ground which is, usually, a ground employed against a trialCourt's appraisal of evidence, be it viva voca or documentary, and a nudge to reevaluatesame. See Osolu v. Osolu (2003) 11 NWLR (Pt. 832) 608. The law has given its imprimatur toan omnibus ground as a valid ground of appeal, see Atuyeye v. Ashamu (1997) 16 NWLR(Pt. 49) 267; Adeyeri v. Okobi (1997) 6 NWLR (Pt. 510) 534; Oteki v. A.-G., Bendel State(1986) 2 NWLR (Pt. 24) 648; Adelusola v. Akinde (2004) 12 NWLR (Pt. 887) 295/(2001) 5SCNJ 235/(2004) 5 SC (Pt. 11); Shehu v. State (2010) 8 NWLR (Pt. 1195) 112. It flows that anomnibus ground infuses life into a notice of appeal, an appeal, and it is viable to sustain anappeal. See Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1156) 529.The prescription of Order 7 Rule 2(3) of the Court of Appeal Rules, 2016 deals with vaguegrounds. The provision, which is comprehension - friendly, expels vague, generic andunseasonable grounds from the province of notice of appeal. See Doma v. INEC (2012) 13NWLR (Pt. 1317) 297; Abe v. Unilorin (supra); Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10NWLR (Pt. 1466) 124; Chiadi v. Aggo (supra). Nota bene, the selfsame provision saves "thegeneral ground that the judgment is against the weight of evidence," id est, the omnibusgrounds, see Abe v. Unilorin (supra); Akpamgbo-Okadigbo v. Chidi (No. 2) (supra). It means,that the provision excuses the omnibus ground from the stigma associated with vagueness,being general in terms and non-disclosure of reasonable grounds. Following the exemption,the objector's chastisement of ground iii, an omnibus ground, as characterised byvagueness is disabled and cannot fly. It is not infested with incompetence and does notdeserve the penalty of striking out as pontificated by the objector. In sum, I declare theground iii as valid ground of appeal."Per OGBUINYA, J.C.A. (Pp. 14-16, Paras. E-C) - read incontext
(201
8) LP
ELR-46
129(
CA)
6. APPEAL - FRESH POINT(S) ON APPEAL: Whether leave of Court must first be sought andobtained before fresh point can be raised on appeal and the exception(s) thereof"The kernel of the appellant's foremost complaint, after an indepth study of the issue, is thatshe ought not be a party to the suit on account of absence of privity of contract between herand the first respondent. In reaction, the first respondent registered a vehement objectionto the consideration of the point on the ground that it was not canvassed in the lower Court.The marrow of the protest is plain: that it is a fresh issue which must not be raised beforethis Court without leave of Court. A fresh issue is one which was not adjudicated andpronounced upon by a lower Court whence an appeal emanated, see Olalomi Ind. v. NIDB(2009) 16 NWLR (Pt. 1167) 577; C. G. G. (Nig.) Ltd. v. Aminu (2015) 7 NWLR (Pt. 1459) 577.An appellate Court is not clothed with the jurisdiction to entertain a fresh issue save with theleave of court sought and obtained, see Odom v. INEC (2015) 6 NWLR (Pt. 1456) 527;Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Yahaya v. Dankwambo (2016) 7 NWLR (Pt.1511) 284; Obasi v. Mikson Est. Ind. Ltd. (2016) 16 NWLR (Pt. 1539) 335. Leave, in thiscontext, connotes permission, see S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v.Ibekwe (1987) 4 NWLR (Pt. 67) 718 (1987) 2 NSCC Vol.18, 1219; Garuba v. Omokhodion(2011) 14 NWLR (Pt. 1269) 145; Otu v. ACB Int'l Ltd (2008) 3 NWLR (Pt. 1073) 179.However, this cardinal principle of law, that a fresh issue cannot be attended to by anappellate Court except with the leave of Court, is elastic. It admits of an exception. Its rideris well - founded in the wide domain of jurisdiction. If a new point borders on jurisdiction of aCourt, a party has the licence of the law to raise it on appeal without the leave of court, seeElugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Moses v. State (2006) 11 NWLR (Pt.992) 458; Owners M/V Gongola v. S. C. (Nig.) Ltd., (2007) 15 NWLR (Pt. 1056) 189; Opobiyiv. Muniru (2011) 18 NWLR (Pt. 1278) 387; C. G. G. (Nig.) Ltd. v. Aminu (supra); Agbule v. W.R. & R. Co. Ltd. (2013) 6 NWLR (Pt. 1350) 318; Dangote Gen. Text. Prod. Ltd. v. Hascon Ass.(Nig.) (2013) 16 NWLR (Pt. 1379) 60; NNPC v. Orhiowasele (2013) 13 NWLR (Pt. 1371) 211;Salisu v. Mobolaji (2014) 4 NWLR (Pt. 1396) 1; Unilorin v. Adesina (2014) 10 NWLR (Pt. 1414)159; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Sakati v. Bako (2015) 14 NWLR(Pt. 1480) 531; Wema Sec. & Fin. Plc. v. N.A.I.C (2015) 10 NWLR (Pt. 1484) 93.Unarguably, the plinth of the appellant's grouse is that she was not a proper party to bejoined in the action. It is now settled, beyond any peradventure of doubt, that an issue ofproper/improper parties touches and impinges on the jurisdiction of a Court to entertain amatter in limine. Indeed, "a person who asserts the right claimed or against whom the rightclaimed is exercisable must be present to give the Court the necessary jurisdiction", seeOlariede v. Oyebi (1984) 1 SCNLR 390 at 406, per Eso, JSC; Ekpere v. Aforiji (1972) 1 All NLR(Pt. 1) 220; Onwunalu v. Osademe (1971) 1 All NLR 14; Awoniyi v. Reg. Trustees of AMORC(2000) 10 NWLR (Pt. 676) 522; Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) 466; PlateauState v. A.-G., Fed. (2006) 3 NWLR (Pt. 967) 346; Faleke v. INEC (2016) 18 NWLR (Pt. 1543)61; G. & T. Investment Ltd. v. Witts & Bush Ltd. (2011) 8 NWLR (Pt. 1250) 500; Ogbebor v.INEC (2018) 6 NWLR (Pt. 1614) 1. The wisdom for such joinder of a party is to make himbound by the result of the suit, see Babayeju v. Ashamu (1998) 9 NWLR (Pt. 567) 546; RincoConst. Co. v. Veepee Ind. Ltd. (2005) 9 NWLR (Pt. 929) 85; Carrena v. Akinlase (2008) 14NWLR (Pt. 1107) 262; P.W.T. (Nig.) Ltd. v. J.B.O. Int'l (2010) 18 NWLR (Pt. 1226) 1; APC v.Karfi (2017) 16 NWLR (Pt. 1592) 457.Since the point falls, squarely, within the wide perimeter of jurisdiction, the law grants theappellant the unbridled latitude to raise it without leave of Court. It follows that theappellant has not defiled the law by raising the issue of the impropriety of joining her to thesuit. On this score, this Court is invested/equipped with ample vires to entertain the issue. Inthe end, the objection, erected by the first respondent to truncate the consideration of thepoint, is lame. Accordingly, I overrule and dismiss it. I will proceed to attend to the point onits merits."Per OGBUINYA, J.C.A. (Pp. 22-25, Paras. B-F) - read in context
(201
8) LP
ELR-46
129(
CA)
7. CONTRACT - PRIVITY OF CONTRACT: General principles of privity of contract"By way of prefatory remarks, the ancient doctrine of privity of contract has been defined as"that connection or relationship which exists between two or more contracting parties", seeRebold Ind. Ltd. v. Magreola (2015) 8 NWLR (Pt. 1461) 201 at 231, per Fabiyi, JSC. Thedoctrine, which is part of our corpus juris, postulates, generally, that a contract cannotconfer/bestow rights, or impose obligations arising under it, on any person except parties toit. Put simply, a stranger to a contract cannot gain or be bound by it even if made for hisbenefit, see J. E. Oshevire Ltd v. Tripoli Motors (1997) 5 NWLR (Pt. 503) 1/(1997) 4 SCNJ 246;Owodunni v. Registered Trustees, CCC Worldwide (2000) 10 NWLR (Pt. 675) 315; Makwe v.Nwukor (2001) FWLR (Pt. 63)/(2001) 14 NWLR (Pt. 733) 356; Union Beverages Ltd v. PepsiCola Int. Ltd (1994) 3 NWLR (Pt. 330) 1; UBA v. Jargaba (2007) NWLR (Pt. 1045); Nwuba v.Ogbuehi (2007) NWLR (Pt. 1072); Osoh v. Unity Bank Plc (2013) 9 NWLR (Pt. 1358) 1;Idufueko v. Pfizer Products Ltd. (2014) 12 NWLR (Pt. 1420) 96; Rebold Ind. Ltd. v. Magreola(supra); Reichie v. N.B.C.I (2016) 8 NWLR (Pt. 1514) 274.I have visited the record, the spinal cord of the appeal, particularly in the residence of theprocesses filed by the contending parties which colonize pages 1-56 of the record. I haveperused them meticulously. Admirably, they rebel against ambiguity. The contract for thesale of the property in question, Plot 1 Ikot Mbo Layout, Calabar, is embodied in Exhibit Awhich is found at pages 5 and 6 and 33 and 34 of the record. The temporary sale agreementtherein was executed on 17th September, 2008, between the second respondent and thefirst respondent as the transferor and transferee of the property respectively. When theterms of that contract could not be enforced to conclusion, following its abortion by theappellant's interference, there was an agreement to refund the sum of N6m (Six MillionNaira) only paid to the second respondent by the first respondent as reflected in Exhibit A.The second agreement on the refund, executed on 1st July, 2009, tagged Exhibit C andlocated at pages 9 and 10 and 42 and 43 of the record, was between the second respondentand the first respondent as the seller and buyer of the property respectively. The appellantsigned as a witness. Thus, the appellant was not a party to the contract in Exhibit A whichled to the alienation of the property. Similarly, she was not a party to the refund agreement,showcased in Exhibit C, notwithstanding that she witnessed it. The fact that a party haswitnessed an agreement, oral or written, does not, de jure, translate him to a party to it.It is discernible from the foregoing, that the appellant was alien to the two contracts whichwere the casus belli of the action which metamorphosed into the appeal. Put the other wayround, there was no privity of contract between the appellant and the first respondent vis-a-vis the disposition of the landed property. For this reason, I will not hesitate to crown himwith the toga of a stranger to the contract. In the view of the law, a stranger to a contract isnot endowed with the locus standi to sue or be sued even when the contract is for hisprofit/advantage."Per OGBUINYA, J.C.A. (Pp. 26-28, Paras. B-F) - read in context
8. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Whether a preliminaryobjection raised on appeal must be resolved before hearing the substantive appeal"A preliminary objection is a specie of objection which, if sustained by a Court, will renderfurther proceedings in a matter unnecessary, see Abe v. Unilorin (2013) 16 NWLR (Pt. 1379)183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR(Pt. 1350) 225. For this reason, the law commands the Court to deal with a preliminaryobjection, when raised in any proceedings, first, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR(Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104;SPDCN Ltd v. Amadi (2011) 14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. Ind. Ltd (2010) 15NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC(Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt.1247) 423; Sa'eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR(Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v.NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256;Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment soas not to insult the law."Per OGBUINYA, J.C.A. (Pp. 6-7, Paras. A-A) - read in context
(201
8) LP
ELR-46
129(
CA)
9. P R A C T I C E A N D P R O C E D U R E - A C A D E M I C O R H Y P O T H E T I C A LQUESTION(S)/ISSUES/SUIT/EXERCISE: Whether Court can make pronouncements onacademic/hypothetical issues"At once, flowing from the outcome of issue one, the appellant's issue two falls within theconstricted four walls of academic issue. In Plateau State v. A-G., Fed (2006) 3 NWLR (Pt.967) 346 at 419, Tobi, JSC, incisively, explained the term, thus:A suit is academic where it is merely theoretical, makes empty sound, and of no practicalutilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if itis not related to practical situation of human nature and humanity.It is settled law, that a Court is divested of the necessary jurisdiction to adjudicate overacademic disputes. Such academic questions are divorced from live issues which engagethe adjudicative attention of the Courts. This is so even if their determination will enrich thejurisprudential content of the law, see A.-G., Anambra State v. A.-G., Fed. (2005) 9 NWLR(Pt. 931) 572; Ugba v. Suswan (2014) 14 NWLR (Pt. 1427) 264; Salik v. Idris (2014) 15 NWLR(Pt. 1429) 36; FRN v. Borishade (2015) 5 NWLR (Pt. 1451) 155; Danladi v. T.S.H.A. (2015) 2NWLR (Pt. 1442) 103; FRN v. Dairo (2015) 6 NWLR (Pt. 1452) 141; Daniel v. INEC (2015) 9NWLR (Pt. 1463) 113; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Dickson v. Sylva(2017) 10 NWLR (Pt. 1573) 299; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343.Having regard to this current inelastic position of the law, the appellant's issue two is, to allintents and purposes, rendered idle. The raison detre for its being spent is not far-fetched.Its consideration by this Court, even if found in favour of the appellant or the respondent,will be of no judicial utilitarian value to either of them premised on the result of issue one.Besides, it is trite that Courts are not clothed/cloaked with the jurisdiction to adjudicate overacademic suit/issues. In total fidelity to the law, I strike out issue two for want of legaljustification to treat it."Per OGBUINYA, J.C.A. (Pp. 31-33, Paras. C-A) - read in context
(201
8) LP
ELR-46
129(
CA)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the
Leading Judgment): This appeal probes into the
correctness of the decision of the High Court of Cross River
State, sitting in Calabar (hereinafter addressed as “the
lower Court”), coram judice: Obojor A. Ogar, J., in Suit No.
HC/14/2011, delivered on 27th May, 2011. Before the lower
Court, the first respondent was the claimant whilst the
second respondent and the appellant were the first and
second defendants respectively.
The facts of the case, which transformed into the appeal,
are submissive to brevity and easy appreciation. Sometime
in 2008, the second respondent, the appellant’s husband,
offered to sell the property situated at Plot 1 Ikot Mbo
Layout, Calabar, for the sum of N12,800,000 (Twelve
Million, Eight Hundred Thousand Naira) only to the first
respondent. The first respondent accepted the offer and
made a part payment of N6,000,000 (Six Million Naira) only
and to pay the balance in December, 2008. The contract
was reduced into writ ing on 17th September,
2008. Subsequently, the appellant wrote a letter to the first
Respondent which culminated in the
1
(201
8) LP
ELR-46
129(
CA)
cancellation of the contract. As a result, there was another
written contract, made on 1st September, 2009, for the
second respondent to refund the N6,000,000 (Six Million
Naira) only with a compensation fee/sum of N300,000
(Three Hundred Thousand Naira) only to the first
respondent. The refund was to be made on the second
respondent’s disposition of the property. On 17th May,
2010, the second respondent resold the property, but
refused to repay the first respondent, as agreed, despite
repeated demands. Sequel to that, the first respondent
beseeched the lower Court, via an undefended list
proceeding filed on 21st January, 2011, and tabled against
the second respondent and appellant, jointly and severally,
the following reliefs:
1. The sum of N6,300,000 (Six Million, Three
Hundred Thousand Naira) being money paid to the
defendants by the claimant without consideration.
2. 21% interest from 17th day of May, 2010 till
judgment.
3. 10% post judgment interest till the entire sum is
liquidated.
In an expected reaction, the second respondent and the
appellant joined issue with the first respondent and denied
liability by filing their respective notices of intention to
defend the suit.
2
(201
8) LP
ELR-46
129(
CA)
Following the denial of liability, the lower Court heard the
suit under an undefended list procedure. In a considered
judgment, delivered on 27th May, 2011, found at pages
80-83 of the record, the lower Court granted the first
respondent’s claim under the undefended list proceeding.
The appellant was dissatisfied with the decision. Hence, on
6th June, 2011, the appellant lodged a 3-ground notice of
appeal, seen at pages 84-86 of the printed record of appeal,
wherein she prayed as follows:
The Appellant seek (sic) the setting aside of the
ruling of the Honourable Tribunal and ordering that
the suit be transferred toi (sic) the general cause list
to be heard on the merit or alternatively the name of
the 2nd defendant/appellant be struck off the suit in
v i e w o f t h e a d m i s s i o n o f t h e 1 s t
defendant/respondent.
Thereafter, the parties filed and exchanged their briefs of
argument in line with the rules governing the hearing of
civil appeals in this Court. The appeal was heard on 20th
September, 2018.
3
(201
8) LP
ELR-46
129(
CA)
Preliminary objection:
The first respondent, at the threshold of his brief of
argument, greeted the appeal with a preliminary objection
on grounds that:
1.The Grounds of Appeal does not (sic) arise from the
judgment of the lower Court.
2. That Grounds 2, 3 and 4 have no particulars.
Submissions on the objection:
Learned counsel for the first respondent (the objector),
Patrick Offem, Esq., submitted that ground i of the
appellant’s ground of appeal did not arise from the
decision, as required by law, and so rendered incompetent
and should be struck out. He relied on Idris v. Abubakar
(2011) All FWLR (Pt. 557) 773; Ballantyne v. Ayi
(2010) All FWLR (Pt. 514) 176. He posited that grounds
ii and iii were vague and without accurate particulars
which rendered them incompetent and liable to be struck
out. He referred to Order 6 Rule 2(2) of the Court of
Appeal Rules, 2011, Khalil v. Yar’ Adua (2003) 16
NWLR (Pt. 847) 446; Order 3 Rule 2 of the Court of
Appeal Rules, 2011; Oge v. Ede (1995) 3 NWLR (Pt.
385) 564; Agbo v. Younan (1974) 3 WSC. 66; CBN v.
Okojie (2002) 8 NWLR (Pt. 768) 48; Brief Writing in the
Court of Appeal and the Supreme Court by Philip
Nnaemeka-Agu at pages 108 and 109.
4
(201
8) LP
ELR-46
129(
CA)
He added that issues distilled from incompetent grounds of
appeal were incompetent and liable to be struck out. He
cited Punch (Nig.) Ltd v. Jumsum Pt. 567 (sic).
For the appellant, learned counsel, E. E. Osim, Esq.,
contended that all the grounds originated from decision of
the lower Court. He noted that ground i bordered on the
lower Court’s failure to consider the appellant’s counter-
affidavit and thereby denied her of the constitutional right
to be heard on her process. He relied onAkpan v. Bob
(2010) 10 SCM 1. He explained the objects of grounds ii
and iii. He observed that they were not vague since they
did not confuse the first respondent. He referred to British
Airways v. Atoyebi (2011) 2 WRN 37. He reasoned that
the omnibus ground could not be struck out because an
issue was distilled from it. He relied on Dakolo v. Dakolo
(2011) 7 SCM 54. He asserted that failure to attach
particulars to clear and a succinct ground of appeal would
not be fatal to an appeal. He referred to (Best (Nig.) Ltd
v. Blackwood Hodge (2011) 2 SCM 48. He described the
objection as based on technicality and urged the Court to
strike it out.
5
(201
8) LP
ELR-46
129(
CA)
Resolution of the preliminary objection:
A preliminary objection is a specie of objection which, if
sustained by a Court, will render further proceedings in a
matter unnecessary, see Abe v. Unillorin (2013) 16
NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR
(Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6
NWLR (Pt. 1350) 225. For this reason, the law commands
the Court to deal with a preliminary objection, when raised
in any proceedings, first, see Uwazurike v. A.-G., Fed.
(2007) 8 NWLR (Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v.