IN THE COURT OF APPEAL OF NIGERIA
On Friday, the 6th day of February, 2015
JOE BEST ESTATE DEVELOPMENT & PROPERTIES LIMITED - Appellant
1. MRS GRACE A. NZEGWU
2. MRS NKIRU AMOBI (AKA NKIRU C. NZEGWU) ................. Respondents
3. REGISTRAR OF TITLE LAGOS STATE
4. PRIMLAKS FINANCIERS CONSULTANTS LTD
5. PRIMLAKS NIGERIA LTD
SHOLA LAMID ESQ. For Appellant
ANTHONY EZENDUKA ESQ.
E.T. OLATUNJI (MRS.) For Respondent
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the order of Bode Rhodes-Vivour J of the Lagos High Court made on the 26th day of February 2003 in suit No LD/3652/99 staying the execution of the consent judgment of Shitta-Bay J in LD/2220/99 on the ground that the consent judgment was obtained by fraudulent misrepresentation. The facts leading to the making of the order are as follows:
The property known as and called Plot 13034 Akin Adesola Street Victoria Island Lagos State, the subject matter of the suit was registered in the name of Late Engr. Theophilus Ifeanyi Nzegwu under Title No. LO. 7816 of the Register of Deeds kept at Lagos State Lands Registry Alausa Ikeja, Lagos State. The 1st respondent is the wife of Late Engr. Theophilus Ifeanyi Nzegwu and was in actual possession of the property in dispute.
Parts of the property were let out to the 4th and 5th respondents. The 2nd respondent claimed that by virtue of a Deed of Assignment dated 29/7/96 the said late Engr. Nzegwu assigned the said property to her. The 2nd Respondent was a party to two separate pending suits in which her interest in the property was being disputed. During the pendency of these suits she purportedly sold the property to the appellant. The appellant and the 2nd respondent procured the entry of judgment in suit LD/2220/99 by obtaining a consent judgment vesting the property in the appellant and in the pretext that the 2nd respondent was in possession of the property, a writ of possession was issued against the 2nd Respondent for the delivery up of possession of the premises to the appellant. Upon the execution of the said consent judgment by the appellant against 1st, 4th and 5th respondents who were in actual possession of the property, the said 1st, 3rd and 4th Respondents become aware of the consent judgment. The 4th Respondent filed a motion ex-parte in suit no LD/2220/99 seeking the following orders.
"1. An order joining Primlaks Financier Consultants Ltd, as an interested party in this suit No LD/2220 /99 pending the hearing of the Motion on Notice.
2. An interim order arresting/staying execution of the judgment in Suit No LD/2220/99 pending the hearing of the Motion on Notice.
3. An interim order reinstating the occupants of the entire premises at Plot 1303A Akin Adesola Street, Victoria Island, Lagos State, Victoria Island, Particularly Primlaks Financiers Consultant Ltd into possession of the property unimpeded or unmolested pending the hearing of Motion on Notice.
The learned trial judge (Shitta - Bey J.) heard and granted the said motion ex parte as prayed on 3/12/99 and the 1st-3rd and 4th Respondents were immediately put back in occupation of the premises. On 9/12/99 they filed a fresh suit LD/3652/99 claiming as follows:
(1) An order setting aside the sale of plot 13034 Akin Adesola Street, Victoria Island, Lagos State, Victoria Island by the second Defendant to first Defendant
(2) An order setting aside the consent judgment entered in No. LD/2220/99 by the Lagos High Court on September 20, 1999.
(3) An order setting aside the Writ of Possession issued in No LD/2220/99 out of the Lagos High Court Registry on November 11, 1999, which writ was sought to be executed on Friday December 1999.
(4) Aggravated and/or exemplary damages in such sum as may be assessed by the court for the damage caused to the Plaintiff and her goods and chattels as a result of the attempted execution by the first Defendant of the writ of possession issued out of the Lagos High Registry on November 11, 1999.
(5) Cost upon a full indemnity basis.
In the course of trial of the suit, Rhodes-Vivour J made the order that "No party shall levy execution on the premises in furtherance of suit No LD/2220/99 pending the hearing and determination of this case which is going on from day to day."
Dissatisfied with the order, the Appellant immediately appealed by Notice of Appeal dated and filed on 6/3/03 at page 79 - 82 of the Record which was subsequently amended severally. Out of the four grounds of appeal in the further amended Notice of Appeal dated 8/7/11 and filed on 13/7/11, the appellant in his brief of argument dated 18/3/04 and filed on 19/3/04 formulated the following three issues:
1. Whether the learned trial judge was right or had the jurisdiction in Suit No. LD/3652/99 to, suo motu, stay the execution of the judgment of a Court of Coordination jurisdiction in another Suit No LD/2220/99 after the said judgment had been executed and after the court which delivered the judgment had, in a considered ruling, refused on application for stay of execution of the said judgment.
2. Whether in all circumstances of this case the learned trial judge in LD/3652/99 had not become functus officio at the time of making the order of 26/2/2003 suo motu, staying execution of the judgment in LD/2220/99.
3. Whether the learned trial judge was or rightly exercised his discretion when he, in Suit No. LD/3652/99 stayed the judgment in another suit No LD/2220/99 without hearing the parties and when there was no fact, evidence or application before him to warrant such an order.
The 1st Respondent filed a Notice of Preliminary objection on the ground that the appeal is an academic exercise or in the alternative an abuse of court process which was argued in the amended brief of argument dated 18/3/11 and filed on 21/3/11. The following two issues were formulated for determination:
(A) Whether the lower court was right when it directed that parties should take no steps to execute the judgment sought to be set aside.
(B) Whether it is academic and an abuse of court process for the appellant to appeal against an order of the lower court which has been disobeyed by the appellant.
In their brief, the 4th and 5th Respondents formulated one question for determination as follows:
Whether the trial Judge rightly exercised his discretion by ordering that no party shall levy execution on the premises in furtherance of Suit No LD/2220/99 pending the hearing and determination of this case which is going on from day to day.
I shall be guided in this judgment by the 1st Respondent's issues. I shall begin by considering the preliminary objection raised by the 1st Respondent in her amended brief of argument argued as issue B; and then issue A if necessary. In the 1st Respondent's brief, the learned counsel contended as follows:
"On September 30, 1999, the appellant and the 2nd Respondent procured the entry of a consent judgment before Justice Shitta - Bey in Suit No. LD/2220/99 in respect of Plot 130A, Akin Adesola Street, Victoria Island, Lagos and sought pursuant thereto to evict the 1st Respondent from the said property on December 3, 1999. The said consent judgment is at page 8 of the records.
On 9th December 1999, the 1st respondent instituted an action against the appellant and the 2nd respondent before Honourable Justice Rhodes - vivour in Suit No. LD/3652/99 at the Lagos High Court, seeking to set aside the said consent judgment. The writ of summons and Statement of claim is at pages 49 - 53 of the records.
On 13th December 1999, the Honourable Justice Rhodes - Vivour, upon the 1st Respondent's application in Suit No. LD/3652/99, issued an interim ex-parte order restraining the first defendant from disturbing the Applicant's possession of Plot 130A, Akin Adesola Street, Victoria Island, Lagos pending the hearing and determination of a motion on notice filed along with the writ of summons and Statement of claim. The said restraining order is at pages 36 to 37 of the records.
On the 26th day of February 2003, the Honourable Justice Rhodes - Vivour in Suit No. LD/3652/99 made a further order herein, directing that "no party shall levy execution on the premises in furtherance of Suit LD/2220/99 pending the hearing and determination of this case which is going on from day to day."
The said order is at page 78 of the records.
The said order was made in open court and in the presence of one Shola Lamid, counsel to the Appellant. In the circumstances, the Appellant is aware of the order.
In breach of the said order, and in order to perpetrate a fraud on the 1st Respondent, on this Honourable Court and on the administration of Justice in Nigeria, the Appellant proceeded before Honourable Justice Shitta - Bey in Suit No. LD/2220/99 on 17th June 2003, by the deliberate misrepresentation and suppression of facts, to obtain an ex-parte order directing the Deputy Sheriff of the High Court of Lagos State to enter the 1st respondent's property at Plot 1304 Akin Adesola Street, Victoria Island, Lagos by force in order to obtain possession thereof, and thereby levy execution of the fraudulent Consent
Judgment entered on September 20 1999 in Suit No. LD/2220/99.
On Friday 20th June 2003, the Appellant proceeded to take possession of the 1st respondent's property, acting upon the fraudulently obtained order in suit No. LD/2220/99 of 17th June 2003, and in direct contravention of the order of Honourable Justice Rhodes - Vivour made in Suit No. LD/3652/99 herein on the 26th day of February 2003.
A court will not adjudicate on a matter which is an academic exercise because the court deals with live issues and steer clear of those that are academic. This was decided in OGBONNA v PRESIDENT FEDERAL REPUBLIC OF NIGERIA (1997) 5 NWLR (PT. 504) 281 @ 287F.
The court is not interested in determining academic questions, because a resolution of the same in favour of either party to an appeal does not have any effect on the decision of a lower court. This was stated in the case of MAMMAN v SALAUDEEN (2005) 18 NWLR (pt. 958) 478 @ 500B - C & 515B - D.
The order of 26th February 2003 by Honourable Justice Rhodes - Vivour in Suit No. LD/3652/99 which is the main issue being challenged in this appeal, has been flouted on 20th June 2003 by ejecting the 1st respondent from the said property.
The appellant has not shown how it is going to affect it if the present appeal is given in its favour.
Furthermore, there is no dispute as to the facts that order of Honourable Justice Rhodes - Vivour was made on 26th February 2003 to maintain the status quo in Suit No. LD/2220/99, pending the full determination of Suit No. LD/3652 /99 of which the appellant and the 2nd respondent are defendants and there is also no doubt as to the facts that the appellant thereafter the said order of Honourable Justice Rhodes - Vivour, proceeded to disobey this subsisting order on 20th June 2003 by ejecting the 1st respondent from the said property acting upon the fraudulently obtained order in Suit No. LD/2220/99 of 17th June, 2003.
Success of the appellant in this appeal will not affect the issue of contempt at the lower court which the appellant apparently is trying to run away from as the appellant will still be held for contempt of the lower court because it disobeyed the said order at the material time the order was in force and it does not matter that the said order was eventually nullified by a superior court.
This is so because an order of a court remains valid until it is set aside. See the case of BRAWAL SHIPPINC (NIG.) LTD V APHRODITE LTD (2004) 9 NWLR (PT. 879) 462 @ 480B - G. In other words, a party who disobeyed a court order at the material time the order was in force will not be relieved of contempt proceedings against it in the event that the said order was eventually nullified by a superior court.
A party who is in contempt of a subsisting order is not entitled to be granted court's discretion to enable him continue with the breach as long as the party continues in his contempt of disobeying the orders contained in the ruling of the court. See the case of GLOBESTAR ENG. (NIG.) LTD V. MALLE HOLDINGS LTD (1999) 10 NWLR (pt. 622) 270 @ 284B.
The essence of this appeal is defeated and it becomes academic as any pronouncement on this present appeal in favour of either of the party would not affect the proceedings in the lower court particularly contempt proceedings in which may be proceeded against the appellant.
In the alternative, the appeal is an abuse of the process of court. The Supreme Court has said that issuance of a writ of execution and levying of execution when a stay is properly in place is an abuse of court process. See the case of AKINYEMI v. SOYANWO (2006) 13 NWLR (PT. 998) 496 @ 514 F-G.
In the instant case, the application for the issuance of the writ of execution granted on 17th June 2003 in Suit No. LD/2220/99 and executed on 20th June 2003 when the order of Justice Rhodes - Vivour in Suit No. LD/3652/99 made in the presence of one Shola Lamid, (counsel to the appellant) still subsists was an act of absolute bad faith and abuse of court process.
Categories of situations and conditions that ground abuse of process are not closed. In other words, the list is inexhaustive as each incident of abuse of court process has to be established from the circumstances of each particular case. See the case of UMEH V IWU (2008) 8 NWLR (PT 1089) 225 @ 243B-C.
In the instant case, the appeal is an abuse of court process as the appellant who had disobeyed the court order in the lower court is now running to this Honourable court for protection to the irritation of the 1st respondent. It is conceded that the appellant has the right to this interlocutory appeal after seeking and obtaining leave to appeal, however, this is done to annoy and irritate the 1st respondent and this amount to abuse of court process as the appeal is based on order of the lower court which the appellant had already disobeyed".
In his amended reply brief, learned counsel for the Appellant in response argued thus:
"The argument of the learned counsel for the 1st Respondent on issue 11 of the Amended Brief of argument lack merit and should be discountenanced. The issue raised by the 1st Respondent is outside the scope of this appeal and there is no ground of appeal that support the issue. Beside the 1st (sic Respondent) did not file Respondent Notice that the judgment be affirmed on other ground. The submission of the learned counsel on the preliminary objection is therefore incompetent and should be struck out.
The Correct Statement are as set out in Brief Statement of facts in paragraphs 1.1 to 1.13 of the Appellant's brief of argument.
The 1st Respondent earlier filed application for stay of execution of the judgment on LD/2220/99 (Page 33 of the record).
The Appellant filed preliminary objection against the said application. The Preliminary Objection was predicated on the fact that earlier the 4th and 5th Respondent and on behalf of the 1st Respondent has earlier upon ex parte application obtained from the court an order of stay of execution which was set aside through the Appellant's appeal constituted as CA/L/79/2000 (Page 23 of the record).
The court upheld our preliminary objection and the 1st Respondent's application was struck out on ground of jurisdiction and locus of the 1st Respondent and struck out the said Application for stay of execution.
The court in LD/2220/99 restores the Appellant to possession on 20/6/2003 upon the refusal of the 1st Respondent application for stay of execution and pursuant to the said Court of Appeal judgment which found that the judgment in LD/2220/99 had been executed on 3/12/99. The court made this following finding at Page 7 of the said Court of Appeal judgment (page 29 of the record).
The order of 17/6/2003 was not an order for possession as wrongly alleged on paragraph 21.6 of Amended Respondent Brief the 1st Respondent but an order to force open the said premises in dispute.
Besides the 1st Respondent cannot complain about this order on this appeal because no appeal was filed against the said order.
The submission of the Appellant is that the court in LD/3652/99 is functus officio and cannot proceed to make the order of 26/2/2003, the same order having been refused by the court in LD/2220/99 to which there is no appeal filed by the 1st Respondent.
Besides the court has no jurisdiction to make order suo motu without hearing the parties particularly the Appellant, see the case of Pavex International Co (Nig) Ltd v. Afribank 2004 SC Pt 11 196 at 216 Per A.O Ejiwunmi JSC supra.
There is clear misconception in the argument of the counsel to the 1st Respondent that execution was levied on 20/6/2003 in flagrant disobedience to order of 26/2/2003. Thus submission is far from the truth.
The Appellant was only restored to possession upon the Court of Appeal setting aside the earlier order of 3/12/99 restoring the 4th, 5th and 1st Respondent possession.
The 1st Respondent admitted this in paragraph 5 of the Statement of claim and page 52.
The Court of Appeal on CA/L/79/2000 had found that the judgment in LD/2220/99 has been executed.
It is submitted that the consequence of setting aside the said order of 3/12/99 is that the parties were left in the position they were on 3/12/99 which means that the Appellant had received possession. See Pavex vs. Afribank Supra.
The issue of alleged disobedience to order of court was raised by the learned counsel for the 1st Respondent in LD/2220/99 under and by virtue of her application dated 23/6/2003.
The 1st Respondent brought application for committal and sequestration of the Appellant and its counsel (not the counsel in this suit) see Exhibit 1K 4 of the Counter Affidavit. The application was dismissed on 20/6/2003. The 1st Respondent did not file appeal on the said order of 20/6/2003. See Exhibit 1K 5 of the counter affidavit to the preliminary objection.
It is submitted that upon the dismissal of the said application on alleged disobedience to order of 26/2/2003, the 1st Respondent is barred at all times from bringing up the issue [again] save on appeal.
See the case of Ume vs. Nigeria Renowned Trading Co. Ltd (1991) 8 NWLR (Pt. 516) Pg 344 at 354 paragraph C-D
"Dismissal of an action by a court in the context of final disposal of the matter is the most punitive measure against a Plaintiff or applicant. This is because he is barred at all times and forever from instituting or commencing the action."
"There is procedural distinction between dismissal of matter and striking out. If a matter is dismissed on its merit, it cannot be [resuscitated]: it finally dies and the pleas of res judicata (if a civil matter) or autrefois acquit or autrefois convict (if a criminal matter) will avail the other party. On the other hand, a matter struck out could be revived by the party.
This he could do either by repeating the same court process or by an amended form in either case, returning the process in its original or amended content to the cause list." (Page 353 -354 Para D, Paragraphs H-A).
The 1st Respondent preliminary objection is therefore an abuse of the processes of court. It is clear from the foregoing submission that it is not the Appellant who has abused the processes of the court but the 1st Respondent.
It is submitted that from the issue joined by both parties this appeal is not academic exercise because the order of 26/2/2003 is still subsisting and ought to be set aside.
We urge my lords to answer issue II of the 1st Respondent brief of argument in the negative".
This appeal is an interesting case in which Mr. Shola Lamid, learned counsel for the Appellant is with due respect, labouring under a very serious misconception of the law or he is perhaps deliberately presenting his case in such a manner as to confuse everyone as to the real substance of his appeal.
This is why I found it expedient to set down the arguments of both counsel in full. First, Mr. Lamid argued that there is no ground of appeal to support the contention of the 1st Respondent on the preliminary objection; and that no respondent's notice to affirm the appeal on other grounds was filed. A preliminary objection does not need a ground of appeal or a respondent's notice to support it. The purpose of a preliminary objection is to contend that the appeal is defective or incompetent and if sustained the appeal would no longer be heard. A successful preliminary objection terminates the hearing of the appeal. The fundamental requirement is that the preliminary objection must be filed and served on the Appellant three days before the hearing of the appeal thereby removing the element of surprise and giving the appellant enough time to respond. Order 10 Court of Appeal Rules 2011; Contract Resource Nigeria Ltd & Anor v. UBA Plc (2011) LPELR-8137(SC).The preliminary objection meets the requirement of the law and is quite in order.
The contention of the 1st Respondent is that while this appeal was pending, and during the subsistence of the order of Rhodes Vivour J, the appellant without taking any steps to have the order discharged and under the cover of certain alleged judgments of other courts contemptuously flouted the order of Rhodes-Vivour J in respect of which it had appealed. Contempt proceedings were on against it for disobedience of the court order. Having taken laws into its hands, the way it did, what then is the essence of continuing this appeal? 1st Respondent argued that it is mere academic exercise and an abuse of the process for the court to continue to hear the appeal.
In the case of Agbakoba v. INEC (2008) 18 NWLP (Pt. 1119) 489 @ 546 - 547 D-G the Supreme Court held that:
"An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. When an issue in an appeal has become defunct it does not require to be answered or controvert about and leads to making of bare legal postulations which the court should not indulge in......"
I do not think this appeal is hypothetical in the sense that it raises a mere academic point because whether the lower court had the jurisdiction to make the order or not is still a live issue. I do not however intend to go into the history of the various proceedings in the various courts which the appellant claimed restored him into possession and thereby enabled him retake possession without breaching the subsisting orders of Rhodes Vivour J. Suffice it to say that even if the claims of the appellant were true (which is not the case) it should not have flouted the court order. An order of a court whether right or wrong must be obeyed unless set aside. The judgment and order he relied on did not empower him to flout the orders. The appellant should have proceeded to court to have the order discharged. It did not do so. Rather it flagrantly disobeyed the order and re-took possession of the premises. How then can the order be subsisting as argued by the appellant to justify the continuation of this appeal? It is disrespectful on this court for the appellant to have brought an appeal before us and while the appeal was pending to have gone ahead to take laws into its hands and to flout the order he was appealing against. It is an abuse of the process of this court and this court ought to deny it any further hearing. In the case of Abeke v. Odunsi (2013) LPELP-20640(SC) the Supreme Court per Ariwoola JSC on whether a party who is in contempt of court can be heard observed:
"....generally, the common law principle which precludes persons in disobedience of the order of the court from being heard in respect of matters in which they stand in disobedience has been settled. In Hadkinson vs. Hadkinson (1952) 2 All EP 567 at 573: Denning L.J opined thus:
'I need hardly say that it is very rare for this court to refuse to hear counsel for an appellant. No matter how badly a litigant has behaved, nevertheless, generally speaking, if he has a right of appeal, he has a right to be heard, for the simple reason that, if he is not heard, his right of appeal is valueless....the fact that a party to a cause has disobeyed an order of the court is not itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the cause of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.
There are however a few exceptions to the general rule. The principle does not apply to applications by an alleged contemnor challenging the order on the ground of lack of jurisdiction by the court. There is a clear distinction between the right to be heard in defence of the order made and the right to enforce yet an order whilst in disobedience. The right to be heard is clearly different from the right to enforce a right whilst still in disobedience. See First African Trust Bank Limited & anor V. Basil Ezegbu & anor (1992) NWLR (PT. 264) 132, (1993) 6 SCNJ 122 (1992) LPELR 1278."
The relief sought by the appellant in this appeal is an order setting aside the order of Rhodes Vivour J in suit no LD/3652/99 on the ground inter alia of lack of jurisdiction to make the order. The order was that "No party shall levy execution on the premises in furtherance of suit No LD/2220/99 pending the hearing and determination of this case..." The appellant disobeyed the order and went and levied execution on the premises. There is nothing left for this court to set aside. It is indeed surprising that the appellant did not on his own discontinue the appeal. Did it expect this court to put a stamp of approval on its total disregard, disdain and disrespect of the court and due administration of justice? This court has the discretion to refuse to hear the appellant while in disobedience of the order of Rhodes-Vivour J. In the exercise of that discretion, this appeal is hereby struck out with N50, 000.00 in favour of the 1st, 3rd and 4th Respondents.
SIDI DAUDA BAGE, J.C.A.:
Having read in draft the lead Judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA, JCA.
I agree with the reasoning and conclusion reached therein and have nothing extra to add.
In conclusion, I too join my learned brother in holding that, the court has a discretion to refuse to hear the Appellant while in disobedience of the order of Rhodes - Vivour J. In the exercise or that discretion, this Appeal is also hereby struck out with N50,000.00 in favour of the 1st, 3rd and 4th Respondents.
ABIMBOLA OSARUGUE OBASEKI - ADEJUMO, J.C.A.:
I had the privilege of reading in draft the judgment just delivered by my learned brother, CHINWE EUGENIA IYIZOBA, JCA and I agree with him that this appeal lacks merit and should be struck out. The lead judgment adequately covered the law as applicable and dealt with extensively with the issue at stake in this appeal.
I do not have anything different to add except to reiterate the point he made on the action of the appellant vis-a-vis the order of the trial court.
It is contempt of court to refuse to do an act required by a judgment or order of court within the time specified therein or to disobey a judgment or an order restraining a person from doing a specified act. The dignity and honour of the court cannot be maintained if its orders are treated disdainfully and scornfully without due respect. See OKO-OSI v AKINDELE (2013) LPELR - 20353 (CA); ABBASS v SOLOMON (2001) 15 NWLR (PT 735) 144.
In the instant case, the Appellant clearly disobeyed the order of Bode Rhodes- Vivour J. made on 26th of February 2003 that "no party shall levy execution on the premises in furtherance of suit No LD/2220/99 pending the hearing and determination of this case which is going from day to day". The act of the Appellant is undoubtedly unconscionable.
Was the Appellant expecting this court to validate an otherwise invalid act of disrespecting and disobeying the preservative order of the trial court? I think not.
For the above reason and those expressed in by my learned brother in the lead judgment, I too strike out the appeal and abide by the consequential orders made in the lead judgment.