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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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.

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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.

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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.

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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.

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) 15 NWLR (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) 4 NWLR (Pt.

1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt.

1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt.

1533) 458;

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Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256;

Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I

will obey this legal commandment so as not to insult the

law. The objector’s objection seeks to terminate the

appellant’s appeal in limine on two vitriolic grounds.

The three grounds the objector seeks to impugn are

grounds i, ii and iii of the appellant’s notice of appeal.

Owing to their kingly position in the objection and the

appeal, it is imperative to pluck them out, ipsissima verba,

where they are domiciled in the notice of appeal occupying

pages 84-86 of the printed record. The three grounds of

appeal, derobed of their particulars, read:

Grounds of Appeal:

i. The Learned justice of the Honourable Court erred

in law when (sic) failed, refused and or neglected to

take into consideration the further affidavit of the

2nd Defendant/Appellant before him in his ruling

thereby denying the Appellant the right to fair

hearing.

(ii) The Learned Trial Judge erred in Law when in the

determination of the Affidavit evidence of the parties

before him failed to consider the all important/vital

issue raised by the Appellant that the

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Appellants original copy of Certificate of Occupancy is

deposited at Bank PHB by the Claimant/Respondent

for a loan of Fifteen Million Naira (N15,000,000.00).

(iii) The ruling of the Honourable Trial Court is

against the weight of evidence before it.

Indisputably, a ground of appeal is the focus of an

appeal. It denotes the totality of the reasons why a decision

complained of is considered wrong by an appealing party,

see Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357;

Ugboaja v. Akintoye-Sowemimo (2008) 16 NWLR (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 Udom v.

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,

complaints against 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;

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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; GTB Plc. v.

Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181;

Nweke v. Unizik, Awka (2017) 18 NWLR (Pt. 1598)

454; Atanda v. Comm., L & H., Kwara State (2018) 1

NWLR (Pt. 1599) 32.

Now, one of the objector’s chief grievances, which is

targeted against ground i, is that it does not flow from the

decision of the lower Court sought to be upturned.

It is trite, that a ground of appeal, which is the nucleus of

every appeal, must attack and disclose nexus with a

decision that is the subject of appeal. In the sight of the

law, a ground of appeal must be linked to and question a

ratio decidendi, not an obiter dictum, of a judgment. Any

ground of appeal formulated in nubibus runs foul of this

cardinal rule of law and 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

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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.

The 4-page terse judgment of the lower Court, which is

wrapped between pages 80-83 of the record, is obedient to

clarity. The ratio decidendi of the decision is located at

page 83, lines 6-8, of the record. It is weaved on the lower

Court’s opinion “… that a holistic consideration of the

affidavits of the 1st and 2nd defendants reveal their

admission of the claimant’s claim rather than a defence

thereto”. The ground i quarrels with the lower

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Court’s failure to consider one of the appellant’s affidavits

in the determination of the case. In other words, the

ground tries to puncture the lower Court’s viewpoint on its

complete examination of the affidavits filed by the feuding

parties in the case. Put simply, the complaint in the ground

strikes at the heart of the ratio decidendi of the judgment.

In essence, the ground i is a direct attack on the decision,

the subject of this appeal, and, clearly, germinated from it.

It flows, that the ground is not, in the least, guilty of the

objector’s allegation of want of connection/correlation with

the decision. In effect, it has not fractured the law to

warrant its ostracisation from the appeal. I rather welcome

it for consideration in the appeal. In the end, the first

ground of objection fails and falls flat.

That takes me to the settlement of the objector’s second

grouse, id est, that grounds ii and iii have no particulars. In

this wise, the provision of Order 7 Rule 2(2) of the Court of

Appeal Rules 2016 comes in handy for the consideration of

the stubborn point. It reads:

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(2) Where a ground of appeal alleges misdirection or

error in law, the particulars and the nature 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/complaint against the judgment

under attack. In practice, they are set out independently

after each ground of appeal. They can, also, be buried in

the body of the ground without any injury to the law. A

ground of appeal does not require an army of particulars.

One part icular is potent enough to sustain an

appeal. Indeed, they may be dispensed with once the

grounds are clear, 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 particulars attached/appurtenant to it. Put

differently, it offends the provision of Order 7 Rule 2(2) of

the Court of Appeal Rules, 2016.

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However, the case law has endorsed the point that not

every contravention of the provision will render a ground

incompetent. This is borne out of the Court’s desire to

crucify technicality on the altar of substantial justice. In

this perspective, where sufficient particulars can be

gleaned from a ground of appeal and the adversary is not

misled, it is not incompetent 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 microscopic examination of ground ii, which is

disobedient to ambiguity, discloses that the particulars are

incorporated therein. Thus, the ground has conveyed, with

sufficient notice and information to the objector and this

Court, the crux of the appellant’s complaints against the

lower 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.

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The law does not compel the Courts to brand ground(s) of

appeal incompetent on the slightest infraction of the rules

of Courts. It is not the intent and spirit of the rules of

Court, which are designed to ensure fairness to litigating

parties, to shut out an appellant from ventilating his

complaints 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, in his infinite wisdom, starved this Court on how

he was misled by the ground ii on the footing of lack of

particulars. On the premise of the foregoing, I dishonour

the objector’s inciting invitation to expel ground ii from the

appeal on the reason of absence of particulars and

transgression of the provision of Order 7 Rule 2(2) of the

Court of Appeal Rules, 2016.

It remains to settle ground iii. It had been displayed earlier

in this judgment. It is a classic exemplification of an

omnibus ground which is, usually, a ground employed

against a trial Court’s appraisal of

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evidence, be it viva voca or documentary, and a nudge to

reevaluate same. See Osolu v. Osolu (2003) 11 NWLR

(Pt. 832) 608. The law has given its imprimatur to an

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) 5

SCNJ 235/(2004) 5 SC (Pt. 11); Shehu v. State (2010)

8 NWLR (Pt. 1195) 112. It flows that an omnibus ground

infuses life into a notice of appeal, an appeal, and it is

viable to sustain an appeal. 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 vague grounds. The provision, which

is comprehension - friendly, expels vague, generic and

unseasonable grounds from the province of notice of

appeal. See Doma v. INEC (2012) 13 NWLR (Pt. 1317)

297; Abe v. Unilorin (supra); Akpamgbo-Okadigbo v.

Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124; Chiadi

v. Aggo (supra). Nota bene, the selfsame provision saves

“the general ground that the judgment is

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against the weight of evidence,” id est, the omnibus

grounds, 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 by vagueness is disabled and

cannot fly. It is not infested with incompetence and does

not deserve the penalty of striking out as pontificated by

the objector. In sum, I declare the ground iii as valid

ground of appeal. In all, the objector’s second ground of

objection, like the first, fails.

In the light of this legal anatomy, the preliminary objection,

invented by the objector to snuff life out of the appeal at its

infancy, is, totally, unfounded in law. Accordingly, I

overrule and dismiss the preliminary objection. I will

proceed to consider the appeal on its merits.

Consideration of the appeal:

During the hearing of the appeal, on 20th September, 2018,

learned counsel for the appellant, O. K. Elias, Esq.,

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adopted the appellant’s brief of argument, filed on 11th

May, 2012 but deemed properly filed on 7th February,

2013, and the appellant’s reply brief, filed on 17th

September, 2014 but deemed properly filed on 6th

February, 2017, both settled by E. E. Osim, Esq., as

representing his arguments for the appeal. He urged the

Court to allow it. The first respondent’s brief of argument

was filed on 15th May, 2013, but deemed properly filed on

11th February, 2014. The first respondent was, duly,

served in respect of the proceedings of 20th September,

2018, but was not represented. As a result, this Court

treated the appeal/brief as duly argued/adopted pursuant to

the provision of Order 19 Rule 9(4) of the Court of Appeal

Rules, 2016. The second respondent, who was duly served,

filed no brief of argument in the appeal.

In the Appellant’s brief of argument, learned counsel

distilled two issues for determination to wit:

1. Whether the appellant’s right to fair hearing was

not impaired and or breached by the Trial Court not

deciding on the facts in the appellant’s further

Affidavit and other facts

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contained in the appellant’s Affidavit of intention to

defend?

2. Whether upon all the available evidence, this is not

case to be transferred to the general cause list?

The first respondent’s learned counsel, in his brief of

argument, crafted two issues for determination viz:

1.Whether the Learned trial judge granted fair

hearing to the parties herein before delivering

judgment on the 27th day of May, 2011.

2. Whether the trial Court transferring the matter to

the general cause list exercises his discretion

judiciously and judiciary (sic).

A close look at the two sets of issues shows that they are

identical in substance. Indeed, the first respondent’s issues

can be, conveniently, subsumed under the appellant’s. For

this reason of sameness, I will decide the appeal on the

basis of the issues formulated by the appellant: the

undoubted owner of the appeal.

Arguments on the issues

Issue one:

Learned counsel for the appellant submitted that the

appellant, on the principle of privity of contract, ought not

to be a party to the suit at the lower Court because she was

not a party to the

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transactions/contract between the second respondent and

the first respondent. He posited that the lower Court’s

failure to consider the appellant’s affidavit of intention to

defend amounted to a breach of her right to fair hearing.

He explained that the first Respondent admitted using the

appellant’s Certificate of Occupancy to secure loan which

was an admission against interest. He added that admitted

facts needed no proof. He relied on Ajagbe v. Idowu

(2011) 7 SCM 29; Asika v. Atuanya (2008) All FWLR

(Pt. 433) 1293; Fagunwa v. Adibi (2004) 19 NSCQR

415. He insisted that the lower Court’s failure to use those

facts made its decision perverse and denial of appellant’s

right to fair hearing. He cited Stabilini Vision (Nig.) Ltd.

v. Sanderton Ventures Ltd (2011) All FWLR (Pt. 602)

1735; Tanko v. UBA (2010) 11 SCM 119. He stated that

all Courts, except the Supreme Court, must consider all

issues before them. He referred to Tanko v. UBA (supra).

He maintained that the lower Court did not consider all the

issues before it which affected the appellant’s right to fair

hearing and its decision a nullity.

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On behalf of the first respondent, learned counsel

highlighted the proceedings leading to the judgment in the

suit. He noted that the appellant belatedly filed her further

affidavit, which she claimed was not considered, on the day

of the judgment, 27th May, 2011, and same was not before

the lower court. He reasoned that the parties were given

equal opportunity, but the appellant waived hers and

s h o u l d n o t c o m p l a i n . H e c i t e d Newswatch

Communications Ltd v. Atta (2006) All FWLR (Pt.

318) 380.

Learned counsel contended, per contra, that the appellant

was involved in the contract and was a proper and

desirable party. He relied on Ogbonda v. Nkanginieme

(2010) All FWLR (Pt. 502) 1034. He described the issue

of privity of contract as a novel one as it was not canvassed

in the lower Court and should be discountenanced. He cited

UBA v. Abacha Foundation for Peace and Unity (2003)

FWLR (Pt. 178) 978.

On points of law, learned counsel for the appellant asserted

that the issue of privity of contract affected the competence

of the lower Court to make binding decision on her and so a

jurisdictional issue which could be raised any time even

on appeal.

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Issue two

Learned counsel for the appellant submitted that based on

the available affidavit evidence, the lower Court ought to

have transferred the case to the general cause list for

determination on its merits. He took the view that the first

respondent admitted that the appellant was not a party to

the contract and that privity of contract denied it of the

jurisdiction over the appellant. He postulated that

evaluation of evidence was the duty of the lower Court. He

added that an appellate Court would interfere with

improper evaluation as happened in the lower Court. He

relied on Ayuya v. Yonrin (2011) 46 NSCQR 471. He

urged the Court to transfer the suit to the general cause list

for determination.

For the first respondent, learned counsel argued that

transferring the case to general cause list was at the

discretion of the lower Court. He described it as a matter of

fact not law. He relied on Obi v. Okeke (2010) All FWLR

(Pt. 531) 1565. He posited that an appellate would not

interfere with a discretion exercised judicially and

judiciously as happened in the lower Court. He referred to

Eno v. Nigeria Copyright Commission

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(2010) All FWLR (Pt. 547) 604. He pointed out that

refusal to transfer a suit to a general cause list was not

appealable. He cited Section 241 (2) of the Constitution, as

amended.

Resolution of the issues

The kernel of the appellant’s foremost complaint, after an

indepth study of the issue, is that she ought not be a party

to the suit on account of absence of privity of contract

between her and the first respondent. In reaction, the first

respondent registered a vehement objection to 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 before this Court without leave of

Court. A fresh issue is one which was not adjudicated and

pronounced 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 the

leave of court sought and obtained, see Odom v. INEC

(2015) 6 NWLR (Pt. 1456) 527;

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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 this context, 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 an appellate Court except with

the leave of Court, is elastic. It admits of an exception. Its

rider is well – founded in the wide domain of jurisdiction. If

a new point borders on jurisdiction of a Court, a party has

the licence of the law to raise it on appeal without the leave

of court, see Elugbe 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; Opobiyi v. 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)

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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 be joined in the action. It is now

settled, beyond any peradventure of doubt, that an issue of

proper/improper parties touches and impinges on the

jurisdiction of a Court to entertain a matter in limine.

Indeed, “a person who asserts the right claimed or against

whom the right claimed is exercisable must be present to

give the Court the necessary jurisdiction”, see Olariede 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; Plateau State v. A.-G., Fed. (2006) 3 NWLR (Pt.

967) 346;

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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

him bound by the result of the suit, see Babayeju v.

Ashamu (1998) 9 NWLR (Pt. 567) 546; Rinco Const.

Co. v. Veepee Ind. Ltd. (2005) 9 NWLR (Pt. 929) 85;

Carrena v. Akinlase (2008) 14 NWLR (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 the appellant the unbridled

latitude to raise it without leave of Court. It follows that the

appellant has not defiled the law by raising the issue of the

impropriety of joining her to the suit. On this score, this

Court is invested/equipped with ample vires to entertain

the issue. In the end, the objection, erected by the first

respondent to truncate the consideration of the point, is

lame. Accordingly, I overrule and dismiss it. I will proceed

to attend to the point on its merits.

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As already noted earlier, the meat of the appellant’s

complaint is that she was an improper party in the action.

She anchored/pegged her viewpoint on the absence of

privity of contract between her and the first Respondent.

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”, see Rebold Ind. Ltd. v. Magreola (2015) 8

NWLR (Pt. 1461) 201 at 231, per Fabiyi, JSC. The

doctrine, which is part of our corpus juris, postulates,

generally, that a contract cannot confer/bestow rights, or

impose obligations arising under it, on any person except

parties to it. Put simply, a stranger to a contract cannot

gain or be bound by it even if made for his benefit, 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. Pepsi

Cola 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

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(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 the processes filed by the

contending parties which colonize pages 1-56 of the record.

I have perused them meticulously. Admirably, they rebel

against ambiguity. The contract for the sale of the property

in question, Plot 1 Ikot Mbo Layout, Calabar, is embodied

in Exhibit A which is found at pages 5 and 6 and 33 and 34

of the record. The temporary sale agreement therein was

executed on 17th September, 2008, between the second

respondent and the first respondent as the transferor and

transferee of the property respectively. When the terms of

that contract could not be enforced to conclusion, following

its abortion by the appellant’s interference, there was an

agreement to refund the sum of N6m (Six Million Naira)

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 and

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located at pages 9 and 10 and 42 and 43 of the record, was

between the second respondent and the first respondent as

the seller and buyer of the property respectively. The

appellant signed as a witness. Thus, the appellant was not a

party to the contract in Exhibit A which led 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

has witnessed 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 which were the casus belli of the

action which metamorphosed into the appeal. Put the other

way round, 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 him with the toga of a stranger to the contract. In

the view of the law, a stranger to a contract is not endowed

with the locus standi to sue or be sued even when the

contract is for his profit/advantage.

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Put clearly, the appellant was not a necessary party to the

matter. In law, a necessary party to a proceeding, distinct

from a desirable party, is a person whose presence and

participation 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 of the requisite jurisdiction to

entertain it as it affected her only. The consequence is far

reaching. The order the lower Court made against the

appellant is well-rooted in nullity. In the sight of the law,

nullity denotes: “Nothing; no proceeding; an act or

proceeding in a case which the opposite party may treat as

though it had not taken place; or which has absolutely no

legal force or effect”, see Lasisi v. State (2013) 12

NWLR (Pt. 1367) 133 at 146, per Ngwuta JSC,

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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

decision or proceeding is infested with nullity, it is void and

taken as it was never given or made, see Okoye 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 of the law, donates no enforceable right on its

beneficiary party who possesses it nor does it impose 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 is to 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

appellant rained against the lower Court’s

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evaluation of the affidavit evidence before it pale into

insignificance. In the same vein, the appellant’s allegation

of erosion of her inviolable right to 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 be mowed down by the

unbiased judicial sword of this Court. In the end, I have no

option than to resolve the issue one in favour of the

appellant and against the respondents.

At once, flowing from the outcome of issue one, the

appellant’s issue two falls within the constricted 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 practical utilitarian

value to the plaintiff even if judgment is given in his

favour. A suit is academic if it is 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 over academic disputes.

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Such academic questions are divorced from live issues

which engage the adjudicative attention of the Courts. This

is so even if their determination will enrich the

jurisprudential 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) 2 NWLR (Pt. 1442) 103; FRN v. Dairo

(2015) 6 NWLR (Pt. 1452) 141; Daniel v. INEC (2015)

9 NWLR (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 all intents 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

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over academic suit/issues. In total fidelity to the law, I

strike out issue two for want of legal justification to treat it.

On the whole, having resolved the solitary issue in favour of

the appellant, the fortune of the appeal is obvious. It is

partly meritorious and succeeds partially. Consequently, I

allow the appeal in part. Accordingly, the name of the

appellant, Mrs. Julie Ndubisi Oguebie, is struck out of

the first respondents suit: Suit No. HCJ14/2011. For the

avoidance of doubt, the other portions of the decision of the

lower Court stand. The parties shall bear the respective

costs they incurred in the prosecution and defence of the

appeal.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the

privilege of reading in draft the judgment delivered by my

learned brother, Obande Festus Ogbuinya, JCA. I agree

with the reasoning and conclusion. I also allow the appeal

in part. I abide with the consequential Orders and the

Order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the

privilege of reading in draft the judgment just delivered by

my learned brother, OBANDE F. OGBUINYA, JCA.

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My learned brother meticulously resolved all the issues

raised in the appeal. I agree with the reasoning and

conclusion arrived at. I have nothing to add.

I allow the appeal in part and abide by the orders made

therein.

 

 

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Appearances:

O. K. Elias, Esq. For Appellant(s)

No representation for the first respondent.

No representation for the second respondent.For Respondent(s)

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