A Customer Cannot Be Foreclosed From Suing To Recover Its Deposit With A Bank Where Such Bank Continues To Use Same For Business

FIRST BANK v. STANDARD POLYPLASTIC INDUSTRIES LTD (2018) LPELR-44081(CA) PRACTICE AREA: CONTRACT INTRODUCTION “It should be appreciated that, in the law relating to statute of limitation, time cannot run out in a situation of a continuous act of damage or injury, complained of. Where a bank is holding onto some deposit of a customer, and is profiting from the deposit, by using same for its business. I cannot see how time can run out for the customer to take out action to recover the said deposit and/or interest, thereon, to suggest foreclosing the customer from recovering the money from the bank, particularly where the bank has admitted custodying the funds of the customer, in whatever currency.” These were some of the words of MBABA, J.C.A. while delivering the leading judgment in this appeal. He went further to posit that “… where by Exhibit CM, Appellant admitted that the money (the naira deposit for the foreign exchange cover) was with it (Appellant), and represented the Appellant’s only liability in the transaction. The said acknowledgement, as per the Exhibit CM, had revived the right to recover the money (if at all that was necessary), as stated by the Respondent” Making sure that there is no grey area, the Honourable Justice clarified that: “It should also be added that, it would be immoral and legally offensive, in my opinion, for a party to seek to invoke the rule of statute bar, just to defeat a legitimate claim for refund of money and escape responsibility, after taking advantage of a contract and benefiting from the transaction for which he is called upon to account. He cannot hold on to the funds of Claimant and continue to trade with it and refuse to render account, alleging that the claimant is statutorily barred from taking action to recover his money, and for damages/interests.” FACTS The facts, as contained in this judgment are that the Respondent (as Claimant) filed a suit against the Appellant (who was the Defendant) at the Abia State High Court. The Respondent’s came was inter alia for an order for refund to the plaintiff of the unremitted USD 134,580 in respect of letters of credit (L/Cs) Nos. 330/83/11/1D (USD 129,150.00) and 330/83/21/ID (USD 5,430.00) which the Defendant procured from the Central Bank of Nigeria on behalf of the Claimant for remittance to claimant’s customer, Bramchas Trading Company London, for supply of goods to the Claimant, which The Defendant failed to remit to the said Bramchas Trading Company, London; the sum of USD 5,439,044.14 being interest from 30/5/83 to 31/8/13 on the said unremitted USD 134,580.00 which the Defendant failed to remit to the Claimant’s said customers as aforesaid but rather employed same in its banking transaction business and interest at the rate of 12% on the said USD 134,580.00 from September, 2013 till judgement was delivered. Parties exchanged pleadings and on 2/5/14, Appellant (as Defendant) filed a motion for the suit to be dismissed for being statute barred, and for lack of locus standi by the Respondent (as Claimant) to bring the suit. The Trial Court dismissed the objection on 27/10/14, saying that the Appellant’s letter of 13/9/2010 (Exhibit CM) had revived the cause of action. At the conclusion of the trial, the trial Court found for the claimant. Dissatisfied by the judgment, Appellant filed a Notice of Appeal at the Court of Appeal to initiate this extant appeal. ISSUES FOR DETERMINATION The six issues formulated by the Appellant for the determination of this appeal were re-couched into three broad heads by the Court and used to determine this appeal. The issues are as follows: (1) Whether the trial Court had jurisdiction to determine the Suit, considering the allegation that the claim was statute barred and that the Respondent had no locus standi to bring the Suit. (2) Whether the trial Court properly evaluated the evidence by the parties to reach its conclusion that Appellant was allocated foreign exchange by CBN, relying on the Exhibits CC, CD and others, which Appellant now says were not admissible? (3) Whether the trial Court was right to award the damages in dollars, and the interest elements, claimed by the Respondent and relying on Exhibit CA? HELD I resolve the Issues against the Appellant, except as earlier stated in respect of the double compensation. Thus, the interest accruing from the main claim of $134,580.00, from 30/5/83 to 31/8/2013 was US$5,304,464.14 (Five Million, Three Hundred and Four Thousand, Four Hundred and Sixty Four Dollars, Fourteen cents), instead of $5,439,044.14. The rest of the decision of the learned trial Court is hereby affirmed, as the appeal is dismissed. Appellant shall pay the cost of this appeal, assessed at Fifty Thousand Naira (N50, 000.00) only. RATIO DECIDENDI

• LIMITATION LAW – ACKNOWLEDGEMENT OF DEBT: When does time begin to run to enforce a contract where debt is acknowledged

“The Respondent had relied on the Appellant’s letter (Exhibit CM) written on 13/9/2010 to the Respondent, on the lingering dispute about the refunds/remittance of the foreign exchange, made to the Respondent by the Central Bank of Nigeria (CBN), through Appellant. The said letter was a reply to Peak International Corporate Adjusters Ltd, retained by Respondent to demand for the refunds of the said remittance, by the Appellant. The Respondent had argued that the above letter (Exhibit CM) had revived the right of a action in the contract, and that the Appellant had even acknowledged same in paragraphs 3.16 to 3.18 of the Brief (Pages 7 and 8 thereof), and so Appellant cannot talk about the Suit being statute barred. At the trial, Appellant had said that the Respondent went into slumber, that it did not take the action, until after about twenty (20) years, the transaction having taken place in 1983; that Respondent did not take action to mitigate its damages. Of course, the trial Court ruled that Appellant misfired; that interestingly, by Exhibit CM, Appellant acknowledged being in possession of the money in Naira. The trial Court also observed that it had earlier ruled against the Appellant in the challenge of jurisdiction on the grounds of the action being statute barred and on grounds of locus standi, and that ruling was not challenged on appeal. (See pages 140 – 142 of the Records) As rightly argued by the Respondent, the Courts normally rely on the writ of summons and/or statement of claim (Claimant’s pleading) to determine whether or not a Suit is statute barred, and it does this by reference to when the cause of action arose (as pleaded by the Claimant) and the time the Claimant commenced action to claim his right. See Ogboru Vs Uduanghan (2012) 11 NWLR (Pt1311) 357; Odubeko Vs Fowler (1993) 7 NWLR (Pt.308) 637. In this case the Respondent had stated in the pleadings when the cause of action arose, and had relied on the Appellant’s letter of 13/9/10. Moreover, this case is for the refund of money, which Appellant admits holding the Naira deposit of the value of the foreign exchange claimed. In the case of FBN Plc Vs Ozokwere (2014) 3 NWLR (Pt.1395) 439 at 499, the Supreme Court said: “… It should be noted that the case of the Respondent is simply for refund of the sum of money $186,990.00 paid to the Appellant for the benefit of Goodfit Trading Co. Ltd, for a consideration that failed. Also to be noted is the fact that it is not the case of the Appellant that it paid the money over to Goodfit Trading Co. Ltd or the correspondent bank. In fact, evidence abounds on record that the money in question is still in the possession of Appellant. These are some of the facts that ground the cause of action of the Respondents and there is evidence on record to support them. It is clear from the record that the mention of statute of limitation in the judgment of the lower Court, which senior Counsel for Appellant considers to be speculative, has nothing whatsoever to do with the case of the parties as pleaded and canvassed before the Court.” I think the above agrees with the situation of the case, at hand, where by Exhibit CM, Appellant admitted that the money (the naira deposit for the foreign exchange cover) was with it (Appellant), and represented the Appellant’s only liability in the transaction. The said acknowledgement, as per the Exhibit CM, had revived the right to recover the money (if at all that was necessary), as stated by the Respondent – See Nigeria Social Insurance Trust Fund Management Boards Vs KLIFCO Nig. Ltd (2010) 13 NWLR (Pt.1211) 307, as Appellant in that letter (Exhibit CM) not only acknowledged liability in respect of the Naira deposit for the foreign exchange cover held by it in the Bank, but also further promised to conclude its review on the demand by the Respondent, upon Respondent forwarding more proof of its entitlement to the claims. Thus, having written on September 13th, 2010 admitting the transaction that brought about the claim, and acknowledging liability in the naira deposit for the foreign exchange cover, Appellant, in my view, cannot raise any issue of statute of limitation against the liability and the claims of the Respondent, even if the doctrine of statute of limitation could be invoked to stop recovery of debt accruing in a contractual transaction, as in this case. In the case of A.G. Adamawa State Vs A.G Federation (2014) 14 NWLR (Pt.1428) 515 at 566, the Supreme Court held: “As clearly shown in the statement of claim of the Plaintiff, their cause of action arose at the acceptance and acknowledgement of indebtedness by the Defendant in July 1983, and time therefore began to run effectively from then.” Per Ariwoola JSC. It was further held (at page 562 of the above case): “… based on the dictum reproduced above, the Plaintiff’s cause of action, the fact or the factual situation which gave them the right to seek judicial relief or remedy, is the letter No. SCB/MKT/XIII/53 which the Defendant wrote to them, acknowledging indebtedness to the Plaintiff.” It should be appreciated that, in the law relating to statute of limitation, time cannot run out in a situation of a continuous act of damage or injury, complained of. Where a bank is holding onto some deposit of a customer, and is profiting from the deposit, by using same for its business. I cannot see how time can run out for the customer to take out action to recover the said deposit and/or interest, thereon, to suggest foreclosing the customer from recovering the money from the bank, particularly where the bank has admitted custodying the funds of the customer, in whatever currency. In the case of NNPC Vs Zaria & Anor (2014) LPELR – 22362 CA, this Court held: “The law is that generally, where the injury complained of is a continuing one, time does not begin to run for the purpose of application of a limitation law, until the cessation of the event leading to the cause of action (Abiodun Vs Attorney General of the Federation (2007) 15 NWLR (Pt.1057) 35). Also where, the continuance of damage is such that gives rise to a fresh cause of action, everytime it occurs, limitation law will not apply to bar action on the fresh cause of action. See Shell Petroleum Development Company Nigeria Ltd Vs Amadi (2010) 13 NWLR (Pt.1210) 82…” It should also be added that, it would be immoral and legally offensive, in my opinion, for a party to seek to invoke the rule of statute bar, just to defeat a legitimate claim for refund of money and escape responsibility, after taking advantage of a contract and benefiting from the transaction for which he is called upon to account. He cannot hold on to the funds of Claimant and continue to trade with it and refuse to render account, alleging that the claimant is statutorily barred from taking action to recover his money, and for damages/interests. In the recent case of Emmanuel Mekaowulu Vs Ukwa West L.G.A: CA/OW/153/2009, delivered on 16th February, 2018, this Court held: “It is therefore inconceivable to say, let alone, hold that such valid contract, duly executed and for which the Respondent enjoyed the benefits, could be held to be statute barred, when it comes to payment for the whole job done, which the Respondent had taken benefit of. To enforce such contraption, as law, would in my opinion, amount to entrenching evil, encouraging a party to profit from his own wrong doing, by taking benefit of a contract but refuse to pay for the job and manipulating the situation for a while… and then plead statute bar, when the Plaintiff, finally, takes action in Court to recover the debt…” See also the case of PDP Vs Ezeonwuka & Anor. (2017) LPELR – 42563 (SC), where the Supreme Court said: “Equity, acting in personam, would not allow a party to benefit from his own iniquity. It insists that whoever comes to it or justice must do justice, and must not come to temple of justice with dirty hands.” And in Teriba Vs Adeyemo (2010) LPELR – 3143 (SC); (2010) 13 NWLR (Pt.1211) 242, it was held: “… the applicable equitable principle being that a person cannot benefit from his own wrong. It is adjudicatory functions; the Court has a duty to prevent injustice in any given circumstance, and avoid rendering a decision which enables a party to escape from his obligation under contract by his own wrongful act…” Ekawm Vs Akpan (1991) 8 NWLR (Pt.211) 616.”Per MBABA, J.C.A. (Pp. 33-44, Paras. F-A) OTHER JUDGMENTS FORM THE COURT EMBARGA v. STATE (2018) LPELR-44085(CA)

• CRIMINAL LAW AND PROCEDURE – CONVICTION AND SENTENCE: Effect of a conviction and sentence based on evidence unsupported by facts disclosed in a charge

“The Court below undoubtedly did palm tree justice in the case before it. The Chambers Dictionary defines palm tree justice as justice without litigation and legal processes. It is said to be an old Arabic or Jewish idea of a wise man dispensing justice under a palm tree. In the instant case, the prosecution charged the Appellant for a robbery in which not a single witness was called even though the prosecution had the names and addresses of five victims of the robbery who made statements that are attached to the proof of evidence. All five victims come from one village Donga. No police officer from Donga Police Station where the robbery was first reported testified. Inspite of all these the Court below pronounced the Appellant guilty of the offence charged. The Appellant did not confess to the offence for which he was pronounced guilty. This was a travesty of justice. Trial Courts should not do palm tree justice because the idea of a wise man dispensing justice under a palm tree is unknown to our law. There was no basis for convicting the Appellant for the offence charged when the prosecution refused to prosecute the Appellant for the offences for which he was charged. It was equally a travesty of justice to rely on the uncorroborated purported statement of the Appellant to convict him of a purported offence for which he was not charged. The constitutional rights of the Appellant under Section 36(5) and (6) of the 1999 Constitution were thereby violated.”Per ABIRIYI, J.C.A. (Pp. 19-20, Paras. A-B)

• EVIDENCE – CONFESSIONAL STATEMENT: Whether a court can convict solely on the confessional statement of an accused person

“The Respondent has however argued in their brief of argument based on this or similar question (issue) raised by them in their brief that, an accused person standing trial can be convicted on his own Confessional Statement. That too I agree and there are a plethora of authorities on this point See: Odua V. Federal Republic of Nigeria (2000) 5 NWLR (Pt. 261) 615, 637; Akpan V. State (1992) 7 SCNJ 22; Egboghonome V State (1993) 7 NWLR (Pt. 306) 383, 411-412; Ishaya V. The State (2013) LPELR – 22202(CA); In the State Vs. Shontu (2014) LPELR – 24206(CA) this Court held that:- “It has been settled in a long line of decided authorities that, in appropriate cases, an accused person can be properly convicted on his or her Confessional Statement alone. See Ojegele V. State (1988) 1 NSCC 276. However it is always desirable to have some evidence outside the confession in further proof of the offence. Since confession must be direct, positive, true and unequivocal of facts that satisfy the ingredients of the offence the accused person confesses to have committed.”Per HUSSAINI, J.C.A. (Pp. 7-8, Paras. E-E) NWABUEZE v. THE PEOPLE OF LAGOS STATE (2018) LPELR-44113(SC)

• APPEAL – ISSUE(S) FOR DETERMINATION: Whether an appellate court can suo motu formulate or adopt and reframe issue(s) for determination

“Ordinarily, it is best to resolve the issues the appellant requires that his appeal be determined upon. After all, the appellant is the party aggrieved by the decision being appealed against. The Court however may, where the justice of the case demands, proceed to determine an appeal on the basis of the issues distilled by the respondent or still, those the Court formulated and preferred in determining the real questions in controversy between the parties. See; Musa Sha (Jnr) & Anor V. Da Ray Kwan & 4 Ors (2000) 8 NWLR (Pt. 620) 685 and African International Bank Ltd v. Integrated Dimensional System Ltd & Ors (2012) LPELR-9710 (SC).”Per MUHAMMAD, J.S.C. (Pp. 4-5, Paras. FB)

• APPEAL – UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s) of court

“…It must be noted that there is no appeal against the foregoing finding of the lower Court. The Court’s pronouncement that the issue of the defence available to the appellant which was never raised and determined at the trial Court and in respect of which leave was not obtained is incompetent remains valid, subsisting and binding on the parties. The incompetent issue cannot, given the circumstance, be raised even in this Court. Being incompetent, appellant’s 3rd issue is accordingly hereby struck out. See Ozurumba Nsirim v. Dr. Samuel Amadi (2016) LPELR-26053 (SC) Chief Ogunyade V. Oshunkeye & Anor (2007) 15 NWLR (Pt 1057) 218 at 257 and SPDC Nig Ltd v. Chief Tigbara Edamkue & Ors (2009) LPELR-3048 (SC).”Per MUHAMMAD, J.S.C. (Pp. 24-25, Paras. E-C)

• APPEAL – UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s) of court

“…Somewhat, most curiously, the appellant did not even challenge the above findings of the lower Court. As such, they (the said findings) subsist, Leventis Technical v. Petrojessica [1999] 6 NWLR (pt. 605) 45; (1999) 4 SCNJ 121, 127; Iseru v. Catholic Bishop (1997) 3 NWLR (pt. 495) 517; (1997) 4 SCNJ 10, 115; Dabo v. Abdullahi (2005) LPELR – 903 (SC) 24; D- G.”Per NWEZE, J.S.C. (P. 34, Paras. B-D)

• CASE LAW – STARE DECISIS: What the doctrine of stare decisis entails

“Firstly, cases are authorities for what they decided. The doctrine of stare-decisis learned appellant’s counsel asserts the lower Court has violated is about past decisions of Courts binding them in subsequent occasions where the facts and legislations applicable to the settled facts are same or similar to those the Courts earlier pronounced upon. Our case law has remained consistent on this principle. It is therefore settled that a Court lower in the judicial ladder is bound by its own or the ratio decidendi of a higher Court in an earlier case, if the issues of fact and the legislation the Court considers subsequently are same or similar. See Dr. Umar Ardo V. Admiral Murtala Nyako & Ors. (2014) LPELR-22878 (SC) and Nigeria Agip Oil Company Ltd V. Chief Gift Nkweke (2016) LPELR-26060 (SC). Where the lower Court, as in the instant case, holds itself bound by the decision of this Court on same or similar facts, appellant’s grudge against the lower Court’s decision cannot therefore, be taken seriously. See Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310 and Nobis-Elendu V. INEC & Ors (2015) LPELR-25127 (SC).”Per MUHAMMAD, J.S.C. (Pp.26-27, Paras. D-C) OLUDE v. STATE (2018) LPELR-44070(SC)

• APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Instances where the Supreme Court will not interfere with concurrent findings of fact(s) made by Lower Courts

“Either on the basis of appellant’s own direct and positive confession as  contained in exhibits P1 – P4 or on its being corroborated by the evidence of PW1 – PW5 as being probably true, the concurrent judgments of the two Courts cannot be said not have been founded on the evidence on record. They remain unassailable. SeeR V Sykes 1913 8 CR APP 233, Bello Shurumo V. The State (2010) LPELR-3069 (SC) and Lekan Shodiya V. The State (2013) LPELR-20717 (SC). The appeal is against the concurrent findings of appellant’s guilt by the two Courts below which the Court is very slow to interfere with except they are shown to be perverse. Having demonstrated, contrary to what the appellant contends, that the judgments are founded on the evidence on record, the appeal has accordingly failed.”Per MUHAMMAD, J.S.C. (Pp. 32-33, Paras. E-C)

• CRIMINAL LAW AND PROCEDURE – OFFENCE OF MURDER: Essential ingredients that must be proved by the prosecution to ground a conviction for murder

“the appellant was charged with the offence of murder: an offence whose ingredients have been so frequently, commented upon that both the Prosecution and defence ought to be familiar withthe decisions at the tip of their fingers. For instance, in Tajudeen Iliyasu v The State [2015] LPELR – 24403 (SC) 25; B -G, this Court [per Nweze, JSC] held that: Under the said section, the prosecution is obliged to prove: (1) that the deceased died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. These ingredients … have witnessed consistent espousal in many jurisdictions, for example, by English Courts, R v Hopwood(1913) 8 Cr. App. R. 143; Hyan v DPP (1974) 2 All ER 41; Woolmington v DPP (1935) AC 462; by Nigerian Courts, Madu v State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v State [2000] 15 NWLR (pt 691) 467; Idemudia v State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607 and by Courts in other Commonwealth jurisdictions, see for example, R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R. v. Tralka (1965) Qd, R. 225, (Queensland, Australia).”Per NWEZE, J.S.C. (Pp. 10-11, Paras. F-F)

• EVIDENCE – UNCHALLENGED/UNCONTROVERTED EVIDENCE: Effect of an unchallenged/uncontroverted evidence

“It is well-known that where evidence of a witness is uncontradicted or unchallenged, the Court would relate it to the applicable law, State v Oka (1975) 9 -11 SC 17; Aigbadion v State [2000] 7 NWLR (pt 666) 686; Pius v State (2015) LPELR – 24446 (SC) 1s -16; G -A; Ayeni v State (2016) LPELR-40105 (SC).”Per NWEZE, J.S.C. (P. 16, Paras. C-E) (2018) LPELR-44070(SC)

• EVIDENCE – CONFESSIONAL STATEMENT: Effect of resiling from an extra judicial confessional statement

“Now, at pages 203 – 204 of the record, the learned trial Judge, Oyewole, J (as he then was), with reference to the appellant’s extra-judicial confessions, proceeded thus: In each of the said statements, the defendant [now, appellant] supposedly gave various accounts of how the deceased [person] met his death and in exhibit P4 exonerated the various individuals to which (sic) he ascribed roles in the earlier statements. In the said exhibit P4, the defendant allegedly made direct confession to (sic) the crime and gave an account of how he murdered the deceased [person]. [page 203 of the record; italics supplied for emphasis] The trial Court, then turned to the legal effect of the appellant’s resiling from exhibit P4. The Court correctly, stated the position of the law thus: Having resiled from this statement, the position of the law is that the said statement, exhibit P4, will be considered and evaluated alongside other available evidence in reaching a decision notwithstanding that the defendant has resiled therefrom in his testimony in open Court, Egbohonome v State [1993] 7 NWLR (pt 306) 383; Ibina v State [1989] 5 NWLR (pt 120) 238, 248 and Nwosu v State [1998] 8 NWLR (pt 562) 433, 442.”Per NWEZE, J.S.C. (Pp.11-12, Paras. F-F)

• EVIDENCE – EVALUATION OF EVIDENCE: Duty of the trial Court as regards perception, evaluation and findings of fact; the duty of an appellate court therein in a case of failure

“It is trite that it is the trial Court’s primary duty to review the evidence adduced by either side and from the probative value it assigns to the evidence, makes its findings of fact. Thus, the Court prefers the case of one side to the other where, because of the quality, admissibility, relevance and probative value, on being put on the imaginary scale, the evidence of the side weighs more. SeeMogaji V. Odofin (1974) 4-5 SC 91, Mogaji V. Cadbury (Nig) Ltd (1985) 2 NWLR (pt 7) 393 and Karibo v. Grend (199213 NWLR (pt 230) 426. An appellate Court intervenes only where the trial Court fails in discharging this primary duty and where credibility of the witnesses who testified is not in issue. See Onwuka V. Ediala (1989) 1 NWLR (Pt 96) 18 and Woluchem V. Gudi (1981) SC 291.”Per MUHAMMAD, J.S.C. (Pp. 28-29, Paras. C-A) ARULOGUN & ORS v. ABOLOYINJO & ANOR (2018) LPELR-44076(CA)

• APPEAL – REPLY BRIEF: Effect of re-arguing an issue already argued in a reply brief

“Other arguments and submissions of learned Appellant’s Counsel in his reply brief amounted to rearguing the Appellant’s brief already adopted. What Appellant’s Counsel failed to appreciate is that a reply brief is not a forum to either engage in arguments at large or reargue his Appellant’s brief. See OJO V. OKITIPUPA OIL PALM PLC (2001) 9 NWLR (PT. 719) 679 AT 693, OGBORU V. IBORI (2005) 13 NWLR (PT. 942) 319 where the Court exhaustively dealt with the function and essence of a reply brief. In the case of Cameroon Airlines v. Mike Otutuizu (2005) 9 NWLR (Pt. 929) 202 where the Court held that a nature of a reply should be limited to answering only new points arising from the Respondents brief and therefore should not be used to profer further argument to those already made and contained in the Appellants brief. The effect of non compliance is that the Court will discountenance such argument. See ONUAGULUCHI V. NDU (2000) 11 NWLR (PT 590) 204 and A.C.B. LTD V. APUGO (1995) 6 NWLR (PT. 399) 65. On the basis of the above set of authorities, I hereby discountenance a greater part of the arguments Reply Brief as amounting to re-arguing the brief.”Per ELECHI, J.C.A. (Pp. 43-44, Paras. E-E)

• CHIEFTAINCY MATTERS – CHIEFTAINCY DISPUTES: Procedure for resolving dispute as to whether a person has been appointed in accordance with customary law

“Learned Appellant had argued in his brief of argument that the grievances of the Appellant started from the 14th day of January 2013 when the 2nd Respondent without recourse to both the written and oral representations made to him by the Appellant and the deliberate refusal of the 2nd Respondent to determine or take decision on the said representations though not controverted in the pleadings, the 2nd respondent on the 14th January 2013 personally and unilaterally nominated, selected and installed the 1st respondent to fill the vacant stool of Olodooye of Odo-oye, contrary to Section 13(1) (2) (3) (4) and (5) of the Chiefs Law of Ekiti State Cap. C5 2012. In protest, what the appellant did upon the appointment and installation of the 1st Respondent as the Olodooye was to write to the Governor of Ekiti State on the 23rd January 2013, a period nine days after the said installation. There was also another letter of protest by the Appellant to the 2nd Respondent which is about 81 days from 5th Dec 2013 to 24th February 2014. The law and procedure guiding aggrieved parties in a Chieftaincy dispute are provided for under Section 13(4) and (5) of the Chiefs Law of Ekiti State which provides as follows; (i) Where there is a dispute as to whether a person has been appointed in accordance with customary law to a minor Chieftaincy, the prescribed authority shall determine the dispute and the person concerned shall be notified of the decision. (ii) Any person who is not satisfied with the decision of the prescribed authority may within twenty-one days from the receipt of the notification, make representations to such member of the Executive council to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and he may, after considering the representations confirm or set aside the decision.”Per ELECHI, J.C.A. (Pp. 48-50, Paras. D-A)

• PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION: Purpose and effect of a preliminary Objection

“The fundamental objective of a preliminary objection is to essentially contend that the appeal (or ground of appeal as in this case) is incompetent and fundamentally defective and should thus be discountenanced by the Court.”Per ELECHI, J.C.A. (Pp. 44-45, Paras. E-A) Culled from [LawPavilion]]>