3PLR – ALHAJI AYORINDE V. T.O.E. KUYE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALHAJI AYORINDE

V.

T.O.E. KUYE

IN THE COURT OF APPEAL

[LAGOS DIVISION]

CA/L/217/88

3PLR/2001/71  (CA)

OTHER CITATIONS

[2002] 24 WRN 37

BEFORE THEIR LORDSHIPS

GEORGE ADESOLA OGUNTADE, JCA (Presided)

OLULADE OLADAPO OBADINA, JCA

IFEYINWA CECILIA NZEAKO, JCA (Delivered the leading judgment)

 

REPRESENTATION

Alhaji M.A. Banuso for appellant/applicant.

E.O. Sofunde, SAN for the respondent.

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Grounds of appeal – classification of – guiding principles.

PRACTICE AND PROCEDURE – APPEAL – Grounds of appeal – grounds stating facts or mixed law and facts – need to obtain leave to appeal – when not obtained – whether appeal is competent.

PRACTICE AND PROCEDURE – APPEAL – Order 3 rule 3(1) of the Court of Appeal Rules – whether applicable to a notice of preliminary objection – when such notice should be supported by an affidavit.

PRACTICE AND PROCEDURE – APPEAL – Stay of execution pending appeal – application for same – whether can be considered where there is no competent appeal.

PRACTICE AND PROCEDURE – CONTEMPT – Contempt of court – rule that an applicant in contempt of the order of court does not merit the exercise of the court’s equitable jurisdiction – exceptions thereto – decisions in F.A.T.B. Ltd. v. Ezegbu (1993) 6 NWLR (Pt. 297) 1 and Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539 explained and followed.

PRACTICE AND PROCEDURE – Contempt of court – rule that an applicant in contempt of the order of court does not merit the exercise of the court’s equitable jurisdiction – exceptions thereto – decisions in F.A.T.B. Ltd. v. Ezegbu (1993) 6 NWLR (Pt. 297) 1 and Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539 explained and followed.

 

IFEYINWA CECILIA NZEAKO, JCA (Delivered the following judgment):

The applicant herein is the appellant in an appeal from the judgment of this court to the Supreme Court.

 

By a motion on notice dated 22nd March, 2001, he has applied to this court for an order to stay execution of the said judgment delivered by the court on 25th April, 1994, pending the determination of his said appeal to the Supreme Court.

 

The said applicant was the defendant in the suit appealed from, filed by the respondent in this application at the High Court, Lagos, claiming declaration of title, damages for trespass and injunction. The High Court, had on 13th March 1987 delivered judgment in favour of the respondent against the applicant, who being dissatisfied, appealed to the Court of Appeal.

 

The Court of Appeal duly heard the appeal and on 25th April, 1994 dismissed it, affirming the judgment of the High Court. The applicant who then appealed to the Supreme Court, has brought the present application. The applicant deposed to an affidavit in support, and a further affidavit, later. The affidavit in support, exhibited the judgment of the Court of Appeal dated 25/4/94 (exhibit ‘A’) and the notice of appeal to the Supreme Court, exhibit ‘B’.The respondent filed a counter-affidavit in opposition.

 

In relevant paragraphs of the applicant’s affidavit, he had deposed as follows:-

 

“(2)   That judgment in the above appeal was delivered on 25th April, 1994 dismissing my appeal therein.

 

(5)     That I have built on the land and (the subject-matter of this appeal) a three storey building which I commenced before this suit was instituted at the High Court of Lagos by the respondent and which I completed in 1981.

 

(6)     That I now occupy four of the six flats while my children occupy two flats in the building and the remaining three boy’s quarters are now occupied by my relations.

 

(7)     That in granting a stay of execution at the lower court on or about 1988 pending the outcome of the appeal to the Court of Appeal, the trial Judge ordered that the rents being collected from the tenants be paid into an account at Wema Bank of Nigeria Ltd., Mushin in the name of the Chief Registrar of the High Court of Lagos State.

 

(8)     That I have been complying with the said order of the trial Judge by opening account No. 21739 at the above-mentioned bank and paying the rents into the said account since July, 1988.

 

(9)     That soon after judgment by the Court of Appeal, the respondent pasted notices on the wall of my building (which is built on the disputed land) that all tenants should henceforth be paying their rents to the chambers of Sofunde, Osakwe, Ogundipe and Belgore and not to me again.

 

(10)   That consequent upon paragraph above, the tenants became impossible and refused to be paying their rents to me but the tenants finally vacated the flats they were occupying between September and November, 1998 after the said flats had been badly damaged.

 

(11)   That as I spent a huge amount of about three hundred thousand naira to renovate the flats vacated by the tenants, I decided to occupy same for my personal use.

 

(12)   That the original motion for a stay of execution was filed on 14th day of June, 1994.

 

(13)   That because of the movement of the Court of Appeal, Lagos from Ikoyi to the present location, our file could not be traced until the hearing notice dated 8/3/2001 was served on the chambers of my lawyer on 11/3/2001.

Photocopy of the hearing notice is hereby attached and marked exhibit “D”.

 

(14)   That on Monday, 19th of March, 2001 when the motion for stay of execution came before the Court of Appeal No. 1 at Lagos, I was present in court. When my lawyer told the court:

 

(15)   That sometime in 1998, his chamber was gutted with fire as a result of which he had to move his chamber to a new location at Abeokuta and that the file of the appellant/applicant was among the few files lost in the inferno.

 

(16)   That after the fire incident, my lawyer received a copy of the counter-affidavit by the respondent to the action of the appellant seeking a stay of execution to the judgment of the Court of Appeal. That the copy was shown to me.

 

(17)   That upon receipt of the said counter-affidavit, I in company of my lawyer, drove from Abeokuta to the Court of Appeal Registry, Lagos to find ways, and means of photocopying, all the papers filed by the appellant.

 

(18)   That surprisingly, the Court of Appeal Registry, Lagos could not also trace its own file. After spending a whole day, we could not get the file.

 

(19)   That my lawyer informed the court about the unfortunate incident enumerated in paragraphs 16 to 18 on 19/3/2001 before the court but the court said that it was not inclined to grant an adjournment in 1994 matter and so my counsel withdrew the motion of 1994. Photocopy of the proceedings of the court on 19/3/2001 in the above suit is hereby attached and marked exhibit “E”.

 

(20)   That in the meantime, my lawyer informed me and I verily believed him that the radical title in the land in dispute has been confirmed by the Supreme Court to be vested in Oshodi family as against Eyifunmi Odujaguda family from which the respondent derives her title.

 

(21)   That consequent upon the fact stated in paragraph 20 above, my lawyer shows me the case reported in Oshodi v. Eyifunmi (2000) 11 WRN 86; (2000) FWLR (Pt. 8) 1271 and that he will make use of this at the hearing of the motion for a stay of execution.

 

(22)   That the respondent is already threatening to levy execution at all costs by ensuring that I and the entire members of my family, together with our personal effects, are thrown out from the building on the disputed land before the appeal is heard by the Supreme Court.

 

(23)   That I over-heard the respondent telling a lawyer at the premises of the Court of Appeal, Lagos on 19/3/2001 that she has decided to turn the whole building mentioned in paragraph 22 above into a church.

 

(24)   That I have no other alternative accommodation into which I can now move the entire members of my family.

 

(25)   That it is in the interest of justice to both sides that a stay of execution is granted pending the determination of the appeal.

 

(26)   That I am informed by Alhaji M.A. Banuso of counsel and I verily believed him that my appeal stands a very good chance of success, more so that the ownership of the parcel of land at Oshodi including the one in dispute is vested in Oshodi family as confirmed by the Supreme Court of Nigeria.”

 

The respondent’s counter-affidavit deposed in relevant paragraphs as follows:

 

“(2)   The appellant was, on the 30th day of November 1987, granted by the lower court a conditional stay of execution of the judgment of the High Court of Lagos State delivered on the 13th day of March 1987 pending appeal to this honourable court. The said judgment is at pages 108 to 124 of the record of appeal before this honourable court. I crave leave of this honourable court to refer to the said record.

 

(3)     Now shown to me annexed herewith and marked exhibit A is a true copy of pages 108 to 124 of the record for ease of reference.

 

(4)     The condition of the stay of execution granted was that all rents accruing on the property in dispute were to be paid into an interest yielding bank account at Wema Bank Plc., Mushin, Lagos State and the successful party on appeal being at liberty to take the money and the accruing interest.

 

(5)     Now shown to me annexed herewith and marked exhibit B is a true-copy of the drawn up order granting a stay of execution.

 

(6)     The said condition was offered by the appellant both through his counsel while the application was being moved on his behalf and personally in an affidavit sworn by him in support of the application on the 8th day of May 1987. I crave the indulgence of this honourable court to refer to page 20-21 and paragraph 9 of the affidavit at page 138 of the record.

 

(7)     Now shown to me annexed herewith and marked exhibits C and D respectively are a true copy each of pages 133 and 138 of the record.

 

(8)     I verily believe that since the order was made the appellant has not complied with the condition for the grant of the stay of execution.

 

(9)     I verily believe that between the time the order was made and October 1994 the appellant only made a payment of N2000.00 of NI,000.00 each on the 6th of July 1988 and 17th of July 1970 respectively into bank account No. 21739 at Wema Bank Plc., Mushin, Lagos State operated by him for this purpose.

 

(10)   Now shown to me annexed herewith and marked exhibits E, E1, F and F1 respectively are a true copy each of a covering letter from Wema Bank Plc dated the 5th day of November 1992, an attached statement of account from the 6th day of July 1988 to October 1992, a covering letter from Wema Bank Plc dated the 26th day of October 1994 and an attached statement of account from the 15th day of February 1994 to the 15th day of October 1994.

 

(11)   After the judgment delivered by this honourable court on the 25th day of April 1994 dismissing the appellant’s appeal both the respondent and our chambers found it difficult to get necessary information from Wema Bank Plc., Mushin where the appellant opened the account.

 

(12)   After a series of letters requesting for information as to the payments of rents by the appellant into the account the bank was compelled to issue a letter that the account as at 29th January, 1999 has a credit account of N4,541.99 only (Four thousand, five hundred and forty-one naira, ninety-nine kobo).

 

(13)   Now shown to me annexed herewith and marked exhibit G is a true copy of the said letter.

 

(14)   The property in dispute comprises 9 flats (6) 3 bedroom flats and (3) 2-bedroom flats.

 

(15)   When the application by the appellant for a stay of execution was brought the respondent engaged the services of an estate surveyor to make a valuation report to show how much the appellant must have collected without paying the rent into court since 1987 until 1994.

 

(16)   Now shown to be annexed herewith and marked exhibit H is a true, copy of the valuation report which shows the accumulated rents to be N738,000 and interest on it is N169,560.00.

 

(17)   In paragraph 8 of the affidavit of the appellant referred to in paragraph 6 foregoing the appellant stated that rents then accruing from the property in dispute amounted to N9,600.00 per annum. I crave the court’s indulgence to refer to page 138 of the record of appeal.

 

(18)   I verily believe in view of exhibit H and the averment in paragraph 17 foregoing that since 1994 the appellant must have collected more rents without paying a kobo into the account as ordered by the court.

 

(19)   Since 1987 the appellant has been living rent-free on the respondent’s adjudged property and also collecting rents from 8 flats to the respondent’s detriment.”

 

In a further affidavit, the applicant deposed that:

 

“(2)   Consequent to the affidavit referred to in paragraph I hereof, the respondent’s counsel filed a counter-affidavit dated 7th June, 2001 on behalf of the respondent.

 

(3)     There is now an urgent need to file this further affidavit in view of the recent development in respect of the subject matter of this suit arising from the facts stated in paragraphs 20 and 21 of the affidavit in support of the application for stay of execution hereinbefore referred to in paragraph 1.

 

(4)     Sometime on or around 20th October, 2000, the head of Oshodi chieftaincy family of Lagos, Alhaji Chief Musa Esugbayi Oshodi, caused a public notice to be posted on the premises of No. 5, Yinusa Street, Oshodi, the subject-matter of this suit, which in effect formally informed me of the Supreme Court judgment No. SC/53/95 delivered on Friday 14th July, 2000 in favour of the said Oshodi chieftaincy family (Oshodi family). Attached herewith and marked as exhibit A is a copy of the said public notice.

 

(5)     Oshodi family made available a copy of the judgment they claimed vested the land in dispute to me and therefore instructed the applicant to deal with them (Oshodi family) henceforth and not either with the respondent or the Eyifunmi Odujaguda family from whom the respondent and the applicant claimed to have purchased the disputed land. Attached and marked as exhibit B is a copy of the said Supreme Court judgment (the judgment).

 

(6)     When I read the judgment, I discovered that the respondent in this suit was the counsel on record for the Odujaguda family that lost at the Supreme Court in respect of the land in dispute and indeed in respect of various other lands within and around Oshodi area in the present Oshodi/Isolo Local Government Area of Lagos State. The building erected on the land in dispute is presently being occupied mainly by my family members.

 

(7)     I am informed by my new solicitor, Mr. Kamar Raji, and I verily believe him as follows:

 

(a)     Having regard to the new development, there exist special circumstances upon which this honourable court could grant its discretionary power of stay of execution in respect of this case.

 

(b)     The balance of convenience in this matter is in my favour since I do not have an alternative accommodation where I could move my family into if this honourable court refuses my application for stay and the respondent also decides to eject me and my family from the premises in dispute before the pending appeal to the Supreme Court is determined one way or the other.

 

(8)     The Oshodi family has assured me that they are willing and are also ready to appeal to the Supreme Court, as interested party, in respect of this suit with a view to clearing the air, once and for all, which family, between the Oshodi family and Eyifunmi Odujaguda, the radical title in the land in dispute is vested.

 

(9)     It is necessary for this honourable court to grant the stay of execution in this suit so as to enable the Supreme Court determine between the respondent and the Oshodi family the party that is entitled to the land in dispute.”

 

The respondent had also filed a notice of preliminary objection to the motion to the hearing and determination of the application. The grounds of the objection state:

 

“The application is incompetent in as far as it is predicated on an incompetent appeal.”

 

At the hearing of the motion, learned counsel for the applicant Mr. Raji announced an objection to the notice of preliminary objection. His grounds were that no affidavit was filed in support of the respondent’s notice of preliminary objection.

 

Moving the applicant’s motion, relying on the applicant’s affidavit, counsel referred particularly to paragraphs 9 – 10.

 

This was intended to show that the act of the respondent caused his failure to pay the rents into the bank. For, a notice pasted by the respondent on the property in dispute after the judgment of the High Court in her favour, which required the tenants to pay their rents to her counsel’s Messrs Sofunde AND Co.’s Chambers, was responsible for the tenants refusing to pay their rents to him. He said the respondent cannot complain of his failure to obey the court’s order.

 

Learned counsel for the applicant then attacked exhibit H of the respondent (referred to in paragraphs 15 and 16 of her counter-affidavit and said it was irrelevant. Exhibit H is a valuation report procured by the respondent to show what rent could have accrued on the property in dispute since the judgment in 1994 by the High Court. Counsel referred to the applicant’s further affidavit and its exhibit A by which he purported to show that Oshodi family was claiming ownership of the land in dispute following a judgment of the Supreme Court given on the 14th of July, 2000.

 

Counsel contended that there was need to look into the claim to determine the rightful owner of the property in dispute in this matter. The issue of balance of convenience between the parties was then addressed. Mr. Raji submitted that the applicant is in possession of the property in dispute and the balance of convenience weighs more to his side. E.O. Sofunde Esq, SAN, learned counsel for the respondent replied to the submission of the applicant’s counsel. He first addressed his notice of preliminary objection. He addressed the grounds of the objection, namely that the applicant’s application was predicated on an incompetent appeal. He contended that the grounds of appeal were all grounds of fact or of mixed law and fact which must be filed with leave of this court or the Supreme Court but no leave was obtained. He relied on the case of A.C.B v. Obmiami Brick AND Stone (1993) 5 NWLR (Pt. 294) 399 at 416 paragraph A. The senior counsel then referred to the respondent’s counter-affidavit. He stated that in the event that his preliminary objection fails, he would rely on the said counter-affidavit (supra). He reacted to Mr. Raji’s submission on the issue of balance of convenience to the effect that the applicant is in occupation of the land in dispute and had built on it since 1981. The learned senior counsel pointed out that the lower court and this court had made concurrent findings of fact that the applicant was warned by the respondent not to build, yet he proceeded to do so. He pointed out another finding of fact that it was the respondent who was in possession of the land since 1970 before the applicant trespassed therein. He referred to the judgment of the High Court, exhibit A (of the applicant) paragraph 3 of page 10 showing that this court affirmed the finding. He contended that the appellant cannot now run away from these findings. He cited Military Governor of Lagos State v. Ojukwu (2001) 39 WRN 155; (1986) All NLR (Reprint) 233. Counsel contended that the inference from all these is that the applicant is not entitled to any equity. He cited Ajomale v. Yaduat (No.1) (1991) 5 NWLR (Pt.191) 257 at 288 C-G. The learned Senior

 

Advocate further submitted that the applicant had introduced an irrelevant matter about the interest of a 3rd party. He pointed out that the appellant did not trace his root of title to Oshodi family, but rather both parties traced to Odujaguda family. He referred to page 5 of the judgment of the lower court, exhibit A paragraph 3, and page 6 paragraph 1. He affirmed that exhibit B, the applicant’s notice of appeal to the Supreme Court does not complain of failure to consider Oshodi family. He asserted that in land law, it is the relative strength of the case of the parties that is relied on, citing Braimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 352 at 363 A-E.

 

On the reason given by the applicant for failure to comply with the order of the High Court to pay the rents into an interest yielding account, counsel referred to paragraphs 4-6 of the respondent’s counter-affidavit and exhibits C and D. He pointed out that it was upon the request of the applicant that the court below ordered the rent to be paid into Wema Bank. He referred to paragraphs 2 and 4 and exhibit B, paragraphs 8 and 9 and exhibits E and E1 which show that only N2000 was paid in by the applicant since the judgment of the High Court in April, 1994 and no more. The Senior Advocate also pointed out that it was on the showing of the applicant that N9,200 was the annual rent of 4 of the flats in the 9 flat premises, yet as deposed in paragraph 12 of the respondent’s counter-affidavit, with interest, the only sum in the account opened by the applicant in Wema Bank is N4,112.37. He submitted that it is not the practice of the court to exercise its discretion on a party who has disobeyed its orders and cited Lawal-Osula v. Lawal -Osula (1995) 3 NWLR (Pt. 382) 128. The learned senior counsel concluded his argument by pointing out that the applicant has lived in the property rent-free when he is not entitled so to do, and that his application is incompetent.

 

In reply to the preliminary objection of the respondent, Mr. Raji for the applicant submitted that the notice of preliminary objection was not supported by any affidavit and is in breach of order 3 rule 3(1) of the Rules of the Court of Appeal that every application must be supported by affidavit. He relied on the cases of In Re: Ozobia (1999) 3 NWLR (Pt. 634) 279. He cited Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539 at 554 paragraph C to support the view that an application of this nature cannot foreclose the application for stay of execution, as that would be denial of “fair hearing”. He urged the court to discountenance the notice of objection. He submitted that ground 6 of the grounds of appeal is a ground of law which can sustain the appeal, citing, Shanu v. Afribank (2000) 18 WRN1; (2000) 13 NWLR (Pt. 684) 392 per Ayoola JSC. C.B.N v. Nwanyanwu AND Sons Ltd. (2000) 5 NWLR (Pt. 657) 460 paragraphs F-H. Counsel further stated that the respondent did not refute the fact that the applicant built on the land before the suit commenced. He further contended that it is not in all cases that the court refuses to grant a contemnor a stay, if there are other collateral issues. He relied on CBN v. Nwayanwu (supra) and Doma v. Ogiri (1997) 1 NWLR (Pt. 481) 322.

He said the applicant has not been found to have totally disobeyed the court’s order. In reply to point of law raised by Mr. Raji, Mr. Sofunde SAN submitted that a notice of objection is not a motion requiring an affidavit, contending that the substance of the objection could be considered as it goes to the merit of the application.

 

So far for the case and contention of the parties. Facts which are not now in controversy are that following the judgment of the High Court on 25/4/84 against the applicant who was the defendant in the suit, he appealed to this court. Thereafter, he obtained an order of stay of execution pending appeal. The order of the High Court for stay, made on 30/11/87 set out in exhibit B of the respondent’s counter-affidavit, was conditional. It required the applicant to pay “all the rents accruing from the property in dispute from the date of judgment” into a special bank deposit account with interest in the name of the Chief Registrar, High Court of Lagos State. The account was to be at Wema Bank Ltd., Mushin Branch.

 

The appellant had asked for the conditions upon which the order in exhibit B was made. Exhibits E1, F1 and G of the respondent are from Wema Bank, Mushin Branch, Lagos. They show as deposed to by the respondent that since the order in exhibit B was made by Agoro J., at High Court, on 27/4/87, the applicant paid only N1000.00 into the account on 6/7/88, and N1000.00 on 17/7/90, making a total of N2000.00. Nothing has been paid into the account till date.

 

The property in dispute is, said to comprise of 9 flats of six (6) 3 bed-room flats and 3 two (2) bed-room flats. On the applicant’s own deposition in his affidavit in support of his motion for stay at the High Court, the rents accruing on the property from 4 of the 9 flats was N9600 per annum. (See paragraph 8 of exhibit D of the respondent’s counter-affidavit (supra). With accruing interest, all that is in the Wema Bank Account is N4,112.99 (See exhibit G of respondent). At the time of the order of the lower court in exhibit B, the applicant said his family was occupying two of the flats. While the order for stay operated, the Court of Appeal heard and dismissed the defendant/appellant/applicant’s appeal before it, affirming the decision of the High Court. Ownership of the property in dispute was declared vested in the respondent.

 

Against the background of the application before us, the notice of preliminary objection, the affidavit evidence of the parties, the undisputed facts and the contention of both parties now before us, we are first of all confronted with determining whether the application for stay of execution pending appeal, is competent, having regard to the grounds of appeal filed, and if competent, whether to grant or refuse it. In the process, we will have to determine collateral issues raised by the parties during argument, including whether a notice of preliminary objection, must be supported by affidavit; whether an applicant in contempt of the order of the court merits the exercise of the court’s equitable discretion; whether the interest of the third party raised by the applicant ought to affect the determination of this application for stay and the issue of balance of convenience.

 

The applicant has raised an objection to the notice of preliminary objection filed and served by the respondent. The grounds are that it ought to be supported by an affidavit, but was not and is therefore incompetent. He relies on order 3 rule 3(1) of the Court of Appeal Rules.

 

The rule reads thus:

 

“Every application to the court shall be by notice of motion supported by affidavit ……”

 

The words of the above rule are clear and unambiguous. It is trite principles of interpretation of the provisions of a statute or rules of court made pursuant to a statute or the Constitution, that where the words are plain and clear, they must be so interpreted and, it is not necessary nor permissible to read other meanings into them. See Nabhan v. Nabhan (1967) 1 All NLR 47. Complete Home Ent. Ltd. v. Henry Stephens Engr. Co. (1993) 9 NWLR (Pt. 316) 208 at 221. Ogunmade v. Fadayiro (1972) 8-9 S.C 1.

 

We are not prepared to stretch the meaning of the words in this rule of the court. The rule, no doubt, applies to motions. It provides the method by which an application to the Court of Appeal must be made, by motion and it is the motion which must be supported by affidavit. Rule 3(1) does not apply to notice of preliminary objection. Such a notice is not a motion. If however preliminary objection is raised by motion by which application is made to the court seeking orders, I have no doubt that order 3 rule 3(1) (supra) would apply and an applicant, in such a case, is obliged to support the application with affidavit, in accordance with the rule. The respondent did not apply by motion. He gave a notice.

 

Also, in an appropriate case where the notice of preliminary objection is based on grounds dependent on facts or evidence, not before the court, the notice of preliminary objection ought to be accompanied by an affidavit. For unless this is so, the court will have no material placed before it upon which to rely to come to a decision.

 

Order 3 rule 3(1) quite obviously does not apply to notices, such as notice of preliminary objection the grounds of which are purely on points of law where there is no reliance on facts. This is the case with the notice of preliminary objection filed by the respondent. Learned counsel for the applicant had cited the case of Re: Ozobia (1999) 13 NWLR (Pt. 634) 279 at 284 in support of his contention.

 

With respect to the learned counsel, that case does not illustrate a situation where a point of law was raised by the notice of preliminary objection such as is raised by the respondent herein. The case deals with notice of preliminary objection in which evidence is required for the purpose of enabling the court to determine the matter in issue. The matter in that case for determination was whether or not the applicant had been commanded to appear in court on a particular date and he had failed to do so. It was an issue of fact raised in the grounds of the objection. It required to be proved, and affidavit evidence either in support of the notice of preliminary objection or to be gathered from some other materials of evidential nature already before the Court. In the case, as no such evidence was provided by the respondent, his preliminary objection was over-ruled. The case of Re: Ozobia (supra) is therefore or no authority that an affidavit must accompany every notice of preliminary objection. It is only authority that where the ground of objection depends on a state of facts requiring to be established by evidence, an affidavit ought to accompany the notice unless there are materials of evidential nature relied on already before the court to establish the fact.

 

The respondent’s notice of objection raises an issue of law with respect to the grounds of appeal which are before this court. It requires no affidavit. I overrule the objection of the applicant to the respondent’s notice of preliminary objection.

 

I now come to the respondent’s preliminary objection to the applicant’s application which is predicated on the grounds of appeal of the applicant to the Supreme Court. Are the respondent’s contention that they are grounds of fact or mixed law and fact correct? Our courts have over time evolved and enunciated the principles for identifying whether a ground of appeal is a ground of law, or a ground of fact or a ground of mixed law and fact. The first thing is to examine the grounds and their particulars. For, it does not follow that a ground of appeal is one of law or of fact or otherwise, simply because the appellant terms or “christens” it so. See Ojemen v. Momodu II (1983) 1 SCNLR 188; (1983) 3 S.C 173 at 177. Tilbury Constr. Ltd. v. Ogunniyi (1988) 2 NWLR (Pt. 74) 64.

 

As a rule, the ground must be thoroughly examined to determine whether it is a ground of law or fact. Inspite of the difficulty of distinguishing between the grounds, the guiding principles applied, help to determine the status of the ground. If a ground of appeal manifests a misunderstanding by the lower court of the law it is a ground of law. Also it is a ground of law if there is a misapplication of the law to undisputed facts or facts already proved or admitted by the parties Ogbechie v. Onochie AND Ors. (1986) 2 NWLR (Pt. 23) 484.

 

A ground of appeal which questions or involves the evaluation of facts before the lower court ‘s application of the law, is said to amount to a question of mixed law and fact – per Eso JSC in Ogbechie v. Onochie (supra); A.C.B. Plc. v. Obmiami Bricks and Stones Ltd. (1993) 5 NWLR (Pt. 294) 399 in the case of Metal Construction (W.A.) Ltd. v. Migliore (1990) 2 SCNJ 20; (1990) 1 NWLR (Pt.126) 299 at 313 Karibi-Whyte JSC provided a guide for identifying a ground of act when he stated that when perception and evaluation of primary findings result in the conclusions ………. it is a matter of fact. Put in another way, matters of fact are capable of proof. They are subject of evidence adduced for the purpose of proof in order to ascertain the truth, or otherwise of the matter. (See also Salmon on Jurisprudence 10th edition 691. It is therefore more forward to identify a ground of fact. In ACB Plc. v. Obmiami Bricks AND Stones Ltd. (supra) at page 418 Karibi-Whyte JSC succinctly restated the principles guiding classification of grounds of appeal. He said,

 

“It is now generally accepted that where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed facts, it is a ground of law.

 

Where on the other hand the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and fact. This is because in this later case, it is a conclusion of law coupled with the exercise of discretion.

 

It is accepted that all questions of law are supported by inferences of facts. The distinction as I have pointed out above is that whereas the facts in questions of law are accepted and undisputed, in questions of mixed law and facts, the facts are disputed and have to be determined on the exercise of discretion before the conclusion of law is drawn.”

 

I will set out the grounds of appeal upon which the objection is predicated. This of course includes their particulars:-

 

Ground 1: The judgment of the learned Judges of appeal court is against the weight of evidence.

 

Ground 2: The learned Judges of appeal court misdirected themselves in law and in fact when they held that Jimoh Odunlami was the rightful head of Odujaguda family from whom the respondent bought the land in 1970.

 

PARTICULARS OF ERROR

 

(i)      DW1 did not confirm that Jimoh Odunlami was then the proper head of Odujaguda family as was found by the Judges of the appeal court.

 

(ii)     DW1 categorically denied that Jimoh Odunlami was ever appointed head of family.

 

(iii)    DW1’s unchallenged evidence was that Jimoh Odunlami was his junior relation and he died many years ago.

 

(iv)    DW1 further unchallenged evidence was that Buraimoh Isiba was the former head of family.

 

(v)     Evidence was to the effect that Buraimoh Isiba was the head of family at the time Jimoh Odunlami sold the land in dispute to the respondent.

 

(vi)    There is no evidence on record that Jimoh Odunlami was appointed the head of Odujaguda family in preference to his senior in the family.

 

Ground 3: The learned Judges of the appeal court misdirected themselves in law and in fact when they hold as follows without properly considering the evidence of defence put forward on this issue:-

 

“In this appeal, there is evidence that in 1970 when the respondent bought the land in dispute, one Jimoh Odunlami was the head of the Odunjaguda family, and this evidence stood unchallenged throughout the case at the trial. It appears to me therefore, that since there was evidence that the respondent has paid the purchase price of N1,000.00 (which was not disputed) and was put in possession and remained in possession until 1976. Respondent must be the valid purchaser of the land in dispute from the Odujaguda family.”

 

“There is no doubt that from the evidence on record at the trial, the evidence adduced by the respondent on the purchase of the land in dispute showed that the sale transaction with the appellant was first in time (1970) and therefore more probable. This is not all. The evidence also proved that while the respondent bought the land from Jimoh Odunlami who was then the proper head of the Odujaguda family (this was confirmed by DW1 himself) the learned trial Judge found in his judgment (pages 122 – 123 of record) that DW1 was never head of Odujaguda family at the material time and so could not validly have sold the family land in dispute to the appellant.”

 

PARTICULARS OF ERROR

 

(i)      The evidence of PW1, PW2 and PW3 on the position of Jimoh Odunlami as head of Odujaguda family was seriously contested by DW1.

 

(ii)     DW1’s evidence was to the effect that Buraimoh Isiba was the head of family at the time Jimoh Odunlami sold the land in dispute to the respondent.

 

(iii)    PW1 and PW3 who claimed, and were accepted, to have witnessed the sale and delivery of possession of the land are not independent witnesses.

 

(iv)    DW1 did not confirm that Jimoh Odunlami was then the proper head of Odujaguda family. (See page 76, lines 20 to 28 of the record).

 

Ground 4: The learned trial Judge erred in law in holding that Yisa Eyifunmi was appointed head of Odujaguda family when such meeting was irregularly held without the eldest and important member of the family i.e. Muniru Orisayemi in attendance.

 

PARTICULARS OF ERROR

 

(i)      (Sic) claimed that Yisa Eyifunmi was unanimously appointed Odujaguda family in their pleading. See page 44, paragraph 2, lines 20 to 24 of the record.

 

(ii)     Yisa Eyifunmi admitted in evidence under cross-examination that Muniru Odujaguda was not invited to the meeting where he (Eyifunmi) was purportedly elected unanimously as the head of Odujaguda family. See page: 68, lines 29 to 31 and page 60 lines

 

Ground 5: The learned Judges of appeal court misdirected themselves in law when they held that the respondent had been in undisturbed possession from 1970 when she bought the land in dispute to 1976 when her possession was disturbed.

 

PARTICULARS OF ERROR

 

(i)      The courts below accepted evidence of possession of the land in dispute through respondent’s caretaker one Saku Eyifunmi who was not called as a witness.

 

(ii)     Appellant claimed in his evidence that the land in dispute was a bush land and there was nobody on it at the time he moved in.

 

(iii)    The learned Judges of the appeal court endorsed the reliance of the trial Judge placed on ipse dixit of the plaintiff.

 

Ground 6: The learned Judges of the appeal court erred in law by failing to consider the balance of equity between the parties and thereby harshly granting injunction in favour of the respondent.

 

PARTICULARS OF ERROR

 

(i)      The learned Judges of the appeal court held that there is evidence undisputed that the appellant built a 4-storey building on the land in dispute.

 

(ii)     There is evidence undisputed that DW1 who sold the land to the appellant was introduced to him as the head of Odujaguda family.

 

(iii)    There is evidence that the respondent paid N1,000.00 for the land and the respondent has not put up any structure on the said land.

 

(iv)    The learned Judges did not consider whether the ends of justice would be properly met by granting an injunction or awarding damages in lieu of injunction.

 

Applying the principles earlier set out, I have carefully examined the grounds of appeal and their particulars. My decision, is that ground 1, the omnibus ground, is a ground of fact.

 

Ground 2 which complains about evaluation of evidence of disputed facts by the Court of Appeal is not raising a question of law. At best it is a ground of mixed law and fact.

 

Ground 3, read with its particulars also complains of evaluation of evidence, is not a ground of law. Leave ought to be obtained.

 

Ground 4 is not complaining against the judgment of the Court of Appeal but against the judgment of the High Court. This the appeal to the Supreme Court ought not to be. The ground is incompetent.

 

Ground 5 is not a ground of law although so christened. It questions the adopting of the finding of facts made by the trial Judge by the Court of Appeal. It could at best be a question of mixed law and fact.

 

Ground 6 which is stated to be error in law from its particulars seems to attack the Court of Appeal ‘s failure to exercise its judicial discretion in the light of the evidence which he claimed on his side. It is a question of mixed law and fact.

See: In Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (Pt. 126) 299; (1990) 2 SCNJ 20. In his oral submission, learned counsel for the applicant urges that at least ground 6 is a ground of law, and would sustain the appeal.

With respect, the particulars of that ground show that the complaint of the appellant/applicant is against failure to exercise the judicial discretionary powers of the Court of Appeal, having regard to the facts of the case. The ground cannot be considered without reference to the facts and the law. It does not matter that the applicant refers to it as a ground of law, it is not. For it is not what an appellant chooses to christen a ground of appeal that determines its classification as an issue of law, or of fact or of mixed law and fact. Rather, it is what the ground actually conveys, having regard to its tenor and its particulars. Tilbury Constr. Co. Ltd. v. Ogunniyi (1988) 2 NWLR (Pt. 74) 64; Metal Constr. (W.A) Ltd. v. Migliore (supra). Ground 6 conveys an issue of mixed law and fact, not one of law simpliciter, (supra).

 

In each of grounds 2, 3, 5 and 6, the error of the law complained of, calls into question, the correctness of the facts determined by the court. This is manifest from the particulars in each ground. What is the effect of the above decision in respect of all the 6 grounds of appeal? None is a ground of law.

 

It is indeed trite law that appeals on grounds of facts or mixed law and facts must be by leave of the Court of Appeal or the Supreme Court, otherwise the appeal is incompetent. See section 233 of the 1999 Constitution of the Federal Republic of Nigeria. There is also a plethora of authorities of our highest courts including Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Erisi v. Idika (No.1) (1987) 4 NWLR (Pt. 66) 503; (1987) 9-11 S.C 170; Akwiwu Motors v. Sangonuga (1984) 5 S.C 184; Ojemen v. Momodu II (1983) 1 SCNLR 188; (1983) 3 S.C 173. The appellant /applicant has failed to obtain leave and with respect to ground 1 on facts, grounds 2, 3,5 and 6 of mixed law and facts. They are incompetent. I have already decided that ground 4 which is not against the decision on of the Court of Appeal but against the decision of the High Court is incompetent.

 

Where it can be shown that there is no valid appeal before the appeal court the basis for considering an applicant for stay of execution pending appeal does not exist – A.C.B Plc. v. Obmiami Bricks AND Stone Ltd. (1993) 5 NWLR (Pt. 294) 399.

 

The objection of Sofunde SAN that the grounds of appeal are incompetent and therefore the motion for stay of execution pending appeal predicated on it is also incompetent is sustained. This by itself disposes of this matter. I have however decided to go one step further. I now come to the issue whether the applicant has disobeyed the order of the High Court and therefore in contempt of the court and if so would not merit the exercise of the discretion of this court.

 

On the affidavit evidence of the parties (supra) and the submission of counsel for the parties, it seems to me that the applicant has blatantly failed to comply with the orders of the High Court to pay the rents from the property in dispute into the bank from the date of the judgment in the High Court. The applicant has no qualms about that. His defence is that after the High Court gave judgment in favour of the plaintiff, the respondent herein, put up a notice on the property asking the tenants to pay their rents to Mr. Sofunde’s chambers. For that reason, he stated, the tenants became impossible and refused to pay to him. (See paragraphs 9 and 10) of the appellant’s affidavit in support (supra).

 

How did the appellant raise the only sum, being N2000.00 which he paid into the bank account (N1,000.00 in July 1988 over one year after the judgment and N1,000.00 two years later in July 1990…)?

 

If there was a notice to pay to Sofunde’s chamber’s shortly after the judgment, that is what it ought to be. After all, the respondent was, the successful party.

But judgment was delivered on 13/3/87 then, from 27/4/87 the applicant was armed with the order of the same High Court for stay and payment into the bank of the rents, which he procured on his own steam. To what use did he put the order? When did he collect the two sums and from which tenants or flat? These are some questions which the applicant ought to but failed to provide answers. His answers constitute important material which would enable the court determine his intention to obey and his good faith. The tone of his affidavit showed a gloss over the material fact that only 3 months after the notice which he complained was posted by the respondent, he had an order of the same court as gave the judgment, relieving him of execution of the judgment on terms set out therein. This would have enable him counter the notice. Did he have the will and make effort to obey the order of the court by using it? The applicant has not deposed to the facts to help this court. It is not the duty of the court to speculate. Rather there is a duty on an applicant who comes to court to seek a discretionary order to provide the court with material that will enable it do justice. In the absence of this, the conclusion one is bound to reach is that he has exhibited no will and effort to obey the order of the court. In fact, on his own deposition, in his paragraph 10 the tenants vacated the premises between September and November 1998. That means that from the date of the judgment (13/3/87) to the above date over eleven years, the applicant enjoyed the benefit of order of stay and made no effort to bear the liability being the condition for the stay. He has exhibited no intention to obey the order of the court for eleven whole years.

To compound it all, apart from the 2 flats occupied by his family at the time the order of the High Court was made on 27/4/87, in his defiance of the court and further disobedience, he deposed that he took possession of all the other flats for his use and the use of his relations. It is in the face of the foregoing he now wants this court of justice to grant him a stay of execution of its own judgment which had affirmed the decision of the High Court whose orders he had quite blatantly disobeyed. One reason he says we must grant him a stay is because he is in possession. Is that what the High Court ordered in April 1987? Surely not. On his own admission, 4 of the flats fetch N9,200 per annum. From 1987 when judgment was given and he got an order of stay, till 1998 when he said the tenants moved out, he paid in N1000 in 1988 and N1000.00 in 1990. Now he occupies the 9 flats with his relations all against the court’s orders. I have decided in the light of the foregoing that the applicant has been in disobedience of the order of the High Court. The respondent persuades us that being a contemnor, this applicant does not merit the consideration of this court. The highest courts of this land have had to consider more, in recent times, what policy the courts must apply when called upon to exercise their discretion in favour of a person, such as the applicant herein, who has remained in continuing disobedience of subsisting orders of a court in respect of the same matter in which the contempt was committed. The policy has been clearly spelt out in a number of recent cases by the Supreme Court – Military Governor of Lagos State v. Ojukwu (2001) 39 WRN 155; (1986) 2 S.C 277 (1986) 1 NWLR (Pt. 18) 621; Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539; First African Trust Bank Ltd. v. Ezegbu (1992) 9 NWLR (Pt. 264) 132; A.C.B v. Obimiami Brick AND Stone – Ltd. (1993) 5 NWLR (Pt. 294) 399.

 

The policy is that a litigant who is in contempt and remained in continuing disobedience of orders of the court is not allowed to take any step of his own or seek the court’s discretion in his favour in the action in which the contempt has been committed. For no court is prepared to allow its processes to be treated with contempt. In the First African Trust Bank’s case (supra), Wali JSC who read the leading judgment said,

 

“As long as the plaintiffs remain in their contempt of disobeying the Court of Appeal orders, this court will not afford them hearing on prayers objected to in their application Odogwu v. Odogwu and the Military Governor of Lagos State AND 2 Ors. v. Ojukwu.” (See page 147 D-E).

 

Karibi-Whyte JSC in the same case succinctly linked the origins of the policy with our Constitution when he said (at page 150 F-G):-

 

“The right to be heard in our courts of law or tribunals is fundamental and guaranteed under our Constitution. At the same time, the Constitution vests in the courts all the inherent powers and sanctions of a court of law. See section 6(6)(a) Constitution 1979. These unspecified common law powers enable the courts to enforce their decisions and to do justice according to law between litigants coming before them

 

The common law principle precluding persons in disobedience of the orders of the court from being heard in respect of the matters in which they stand in disobedience is well settled. See Hadkinson v. Hadkinson (1952) 2 All ER 567.”

 

In the same case of First African Trust Bank’s case, the Supreme Court upheld a preliminary objection such as was raised in this matter and refused to hear the applicant’s application to the Supreme Court. This court is bound to given effect to this high policy now firmly established.

 

The essence of this as I see it is that no party in litigation is allowed to set the judicial process against itself and thus to undermine due administration of justice. I am unable to subscribe to permitting or aiding the applicant to reap the favour of this court’s discretion while undermining the dignity of the court which he has done for over a decade, and continuing to undermine. To emphasise one other point, I would respectfully borrow the words of Mohammed JSC in First African Trust Bank (supra) where he stated that a person against whom an order has been made by a court of competent jurisdiction has an unqualified duty to obey that order until the order is discharged. The order of the High Court which applicant obtained was not for him to occupy the 9 flats as he has done but to pay rents therefrom into the bank. Having failed to respect that order and perform the duty, he is bound to bear the brunt of his action.

 

I am unable to understand how the passage from the case of Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539 at 554 cited and relied on by Mr. Raji learned counsel or the applicant, supports the answer to Mr. Sofunde’s submission that being a contemnor, the applicant was not entitled to the exercise of the court’s discretion.

 

The passage referred to at page 554 paragraphs F-G of the report, from the leading judgment of Karibi-Whyte JSC spoke of exceptions to the rule precluding persons in disobedience of the orders of the court against them, from being heard in respect of the matters which they respect of the matters which they stand in disobedience of. These include “where the order disobeyed was made without jurisdiction or where the party in disobedience is challenging the validity of the order…..”

 

Nothing whatsoever was raised or presented either in the affidavit of the applicant or in his counsel’s submission about any issue of jurisdiction of the High Court which made the order disobeyed or challenging the said order. The exception does not arise or apply to his case. If anything Odogwu’s case supports the case of the respondent herein. This is so very clear from what the learned Justice of the Supreme Court, Karibi-Whyte JSC stated at pages 555-557 of the report. It is so illuminating. Inspite of the risk of repetition and too lengthy a reproduction, I dare to set out the whole dictum from page 555 paragraphs G-H and pages 556-557 A-H. He said:-

 

“It seems to me that learned counsel in this application have glossed over the crucial issue. We have before us, an application for a stay of execution pending the determination of the appeal against the decision of this court on the stay of execution granted by the Court of Appeal to the respondent.

 

The stay of execution granted by the Court of Appeal to the respondent which is the subject matter of appeal to this court was granted by the Court of Appeal against the judgment of the High Court granting custody of the children to the applicant. The stay granted is pending the determination of the appeal. Respondent to this application has appealed to the Court of Appeal against the judgment. The appeal is still pending in that court.

 

It is of critical importance to identify the subject matter of the stay of execution. It seems to be assumed that the res involved in this application are the children of the marriage, custody of which is being disputed by the parties. The res in this application is the order for stay of execution by the Court of Appeal. Be that as it may, and as important as it is, the issue before us is one of high judicial policy and constitutional importance. The right to be heard is fundamental. But this does not preclude the control of the exercise of discretion in favour of or against an offending party. The high judicial policy involved in this application is whether our courts ought to exercise their discretion in favour of a person who has remained in continuing disobedience of their orders and has sworn to remain so defiant without showing that the court has no jurisdiction to make the orders so disobeyed.

 

Throughout the submission of learned counsel to the applicant, there has been no allegation that the Court of Appeal lacked jurisdiction to make the order for stay of execution as in Gordon v. Gordon (1904) page 163. The submissions have been on the validity of the exercise of discretion on the consideration of the interest of the children, subject matter of the orders challenged. The contention is that the Court of Appeal has failed to exercise its discretion in the interest of the children. We are therefore being invited to exercise our discretion in favour of the applicant by granting the stay of execution of the orders of the Court of Appeal.

 

I have referred in this judgment to the right of the applicant to be heard, and in compliance with our constitutional provision that his application ought to be heard on its merits notwithstanding his continuing disobedience of the order of the court below. Learned counsel to the applicant’s main contention is that he is entitled in the exercise of the right of appeal to remain in disobedience of the order of the Court of Appeal.

 

I do not think this proposition represents the correct view of the law. Learned counsel is very familiar with the well settled principle that the exercise of a right of appeal per se does not operate as a stay of execution. Accordingly where a valid order for stay of execution has been made, a disobedience of such order amounts to contempt. In this case it is clear and undisputed that the act constituting contempt that is, the forcible removal of the children, was made before the order of the Court of Appeal was made. The disobedience consists in the refusal to comply with the order after it was made.

 

The common law principle applied in our courts is that applicant cannot, whilst continuing in contempt, be heard to be seeking the favour of the court. See Barnado v. Ford (1892) A.C 326; Chuck v. Cremer (1846) 1 Coop. 205; 49 All ER 820.

 

In Barker v. Dawson (1836) 1 Coop. 207, Lord Cottenham drew a distinction in those cases where the order alleged to be irregular was obtained before or subsequently. In the former case the contempt must be purged before the party could make any application to the court, but not the latter. The facts of this case falls within the first category.

 

The judicial powers constitutionally vested in our courts includes all the inherent powers and sanctions of courts of law. This involves the powers to regulate its proceedings, punish for contempt and regulate the exercise of its discretion. The court in the regulation of its proceedings, protection of its dignity and the effective administration of impartial justice is entitled to and indeed obliged to say that it will not allow a process issuing out of the court to be treated with indifference, levity and disdain.”

 

In the light of the foregoing there is nothing more to add, except to conclude that the applicant is not entitled to the favour of this court’s discretion being a contemnor of the order of the High Court in relation to the same matter before this court. Mr. Sofunde SAN was correct after all. His submission is upheld.

 

The two issues raised by the respondent, viz that the grounds of appeal being incompetent are not able to sustain the appellant/applicant’s motion for stay of execution pending appeal and that the appellant/applicant being a contemnor, is not entitled to the benefit of the court’s discretion, have succeeded. They are sufficient to dispose of this application. I see no useful purpose in considering the other issues raised by the parties in their submissions. I decline to do so.

 

In the premises, I would dismiss the application and the same is hereby dismissed with N5,000.00 costs to the respondent.

 

GEORGE ADESOLA OGUNTADE, JCA:I read before now a copy of the lead ruling by my learned brother Nzeako, JCA. I agree with her reasoning and conclusion. I would also dismiss the application.

 

OLUDADE OLADIPO OBADINA, JCA: I have read in advance the lead ruling of my learned brother, Nzeako, JCA, just delivered. I am in complete agreement with the reasoning and conclusion reached that the application lacks merit and should be dismissed. The grounds of appeal is very incompetent and the applicant does not deserve the discretion of the court. I also therefore dismiss the application.

 

Cases referred to in the judgment

A.C.B. v. Obmiami Brick AND Stone Ltd. (1993) 5 NWLR (Pt.294) 399.

Ajomale v. Yaduat (No.1) (1991) 5 NWLR (Pt.191) 257.

Akwiwu Motors v. Songonuga (1984) 5 S.C 184.

Barker v. Dawson (1836) 1 Coop. 207.

Barnado v. Ford (1892) A.C 326.

Braimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 352.

C.B.N v. Nwanyanwu AND Sons Ltd. (2000) 5 NWLR (Pt. 657) 460.

Chuck v. Cremer (1846) 1 Coop. 205; 49 All ER 820.

Complete Home Ent. Ltd. v. Stephens Engr. Co. (1993) 9 NWLR (Pt 316) 208.

Doma v. Ogiri (1997) 1 NWLR (Pt. 481) 322.

Erisi v. Idika (No.1) (1987) 4 NWLR (Pt. 66) 503; (1987) 9-11 S.C 170.

F.A.T.B. Ltd. v. Ezegbu (1992) 9 NWLR (Pt. 264) 132.

Hadkinson v. Hadkinson (1952) 2 All ER 567.

Lawal-Osula v. Lawal-Osula (1995) 3 NWLR (Pt. 382) 128.

Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (Pt.126) 299; (1990) 2 SCNJ 20.

Military Gov. Lagos State v. Ojukwu (2001) 39 WRN 155; (1986) All NLR (Reprint) 233; (1986) 2 S.C 777; (1986) 1 NWLR (Pt. 18) 621.

Nabhan v. Nabhan (1967) 1 All NLR 47.

Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.

Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539.

Ogbechie v. Onochie (No.1) (1986) 2 NWLR (Pt. 23) 484.

Ogunmade v. Fadayiro (1972) 8-9 S.C 1.

Ojemen v. Momodu II (1983) 1 SCNLR 188; (1983) 3 S.C 173.

Oshodi v. Eyifunmi (2000) 11 WRN 86; (2000) FWLR (Pt. 8) 1271.

Re: Ozobia (1999) 13 NWLR (Pt. 634) 279.

Shanu v. Afribank (2000) 18 WRN 1; (2000) 13 NWLR (Pt. 684) 392.

Tilbury Constr. Co. Ltd. v. Ogunniyi (1988) 2 NWLR (Pt. 74) 64.

Statutes referred to in the judgment

Constitution of the Federal Republic of Nigeria, 1999 s. 233.

Constitution of the Federal Republic of Nigeria, 1979 s. 6(6)(a).

Rules of court referred to in the judgment.

Court of Appeal Rules or. 3 r.3(1).

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