‘Court cannot grant a claim not sought’

This is an appeal against the decision of the Court of Appeal Lagos Division delivered on 18/3/2004. The Appellant who was the plaintiff at the trial Federal High Court in her statement of claim dated 11/12/99 claimed the following reliefs:- a.     A declaration that plaintiff is entitled to the Bill of Lading in possession of […]

This is an appeal against the decision of the Court of Appeal Lagos Division delivered on 18/3/2004. The Appellant who was the plaintiff at the trial Federal High Court in her statement of claim dated 11/12/99 claimed the following reliefs:-
 a.     A declaration that plaintiff is entitled to the Bill of Lading in possession of the defendants and or their agents.
b. A declaration that she has effected total payment of money due on the contract and that further payment of additional money to the first and second defendants is unjustified, unwarranted, oppressive, illegal, null and void.
c. An order for the release to the plaintiff of her goods and Bill of Lading immediately without payment of any demurrage charges.
d. An order for specific performance of the contract by causing the first and second defendants to fulfill and honour same by delivery to the plaintiff of all goods and household effects now in the custody of fourth defendant immediately.
e. An order of perpetual injunction restraining the first, second, third and fourth defendants and their agents, servants and or privies from withholding or continue to withhold the Bill of Lading; the goods and household effects of the plaintiff now in their custody.
f. An order for the payment of N5,000.000.00 (Five Million Naira) to the plaintiff by the defendants jointly and severally as general damages for loss of use of the goods and household effects in their custody since last year.
The plaintiff’s statement of claim was later amended, and the amended statement of claim was dated 4/4/2000. On 26/1/2000 on the application of the plaintiff, the trial court presided over by Okeke J, ordered that the goods in dispute be released to the plaintiff upon the production of a bank guarantee for the sum of $5,405.94, which shall be renewable pending the determination of the case. The matter was re-assigned to another court presided by Gumel J, (as he then was) and on 16/11/2000 when the case came up, the appellant applied for a date to hear her two pending applications, the trial court however proceeded to make an order that the goods be released to the plaintiff upon the execution a bond in the sum of $8,000.00 with two sureties.
He further proceeded to set aside the earlier order made by Okeke J, for the production of bulk guarantee on the ground that it was made without jurisdiction.
Dissatisfied with this order, the 3rd defendant, UCCAS Resources Nigeria Limited, had appealed to the Court of Appeal, having sought and obtained the leave of that court. In spite of the pendency of the appeal, the plaintiff again filed another application praying the court for an order for delivery of the goods in question against the 3rd defendant. The trial court on 11/2/2002 granted the application. The 3rd defendant was again dissatisfied by the order and appealed to the lower court. The two appeals were then consolidated.
After hearing the parties, the lower court allowed the appeal. The two orders made by Gumel J were set aside by the lower court.
On the order made on the 16/11/2000 the lower court inter alia, held as follows:-
“It is trite law that if a case is set down for mention no substantive matter should be taken on such day. See Mbadinuju V. Ezuka (1994) 8 NWLR (pt.364) 535. It is equally trite that since Gumel J was coming into the matter for the first time after the previous Judge Okeke J was transferred; all parties to the case must be put on notice to appear before him. It appears that these steps were not taken before the hearing of 16/11/2000. The record has been reproduced earlier in this judgment. The trial court without any application from any of the parties made the order being appealed against. It is the duty of a trial court to adjudicate on the matter placed before it and not for it to make gratuitous orders Suo Motu”.
On the order of Gumel J made on 14/3/2000, the lower court held thus:-
“It is a trite law that a trial court hearing an interlocutory matter should avoid deciding at that stage a relief that calls for resolution in the substantive case. See W.A.A.E. Co., Ltd v. Akinsete (1999) 13 NWLR (pt.636) 600. It is beyond dispute that relief for the release of 1st Respondent’s goods in the custody of the appellant is the main relief in the substantive case. The order of the trial court made on 11/2/2002 certainly prejudge that relief. Furthermore since that order was sequel to the earlier order made on the 16/11/2000 which I have already set aside cannot stand on its own.”
The plaintiff was dissatisfied with the decision of the lower court and appealed to this Hon. Court on a Notice of Appeal containing two grounds of appeal, they are hereunder without their respective particulars, reproduced:-
1. Their lordships erred in law when in deciding the appeal they held that the order of the trial court, that is the Federal High court, of 16/11/2000, was a nullity being a gratuitous order made suo motu.
“It is trite law that if a case is set down for mention no substantive matter should be taken on such day. See Mbadinuju v. Ezuka (1994) 8 NWLR (pt.364) 535. It is equally trite that since Gumel J was coming into the matter for the first time after the previous Judge Okeke J was transferred, all parties to the case must be put on notice to appear before him. It appears that these steps were not taken before the hearing of 16/11/2000. The record has been reproduced earlier in the judgment. The trial court without any application from any of the parties made the order appealed against. It is the duty of a trial court to adjudicate on matters placed before it and not for it to make gratuitous order suo motu. There was no application before the trial court to set aside the earlier order of Okeke J for want of jurisdiction. I agree with the submission of the learned counsel for the appellant that the order of the trial court made on 16/11/200 is a nullity.”
b. The case of Mbadinuju v. Ezuka relied upon by their lordships was decided in 1994, a substantial period before the introduction of the Federal High Court (Civil Procedure Rules) 2000 and in any event the case does not have any bearing on the scope, effect, interpretation and application of Order 54 r.1, Federal High Court (Civil Procedure) Rules, 2000.
2. Their lordships erred in law when in allowing the appeal, they held that the order of the trial court, that is, the Federal High court, of 11/2/2002 amounted to pre-judging one of the main reliefs in the substantive claim.
“It is beyond dispute that the relief for the release of the 1st respondent’s goods in the custody of the appellant is the main relief sought in the substantive case. The order of the trial court made 11/2/2002 certainly prejudged that relief. Furthermore, since that order was sequel to the earlier order made on the 16/11/2000 which I have already set aside it cannot stand on its own.”
Both parties filed and exchanged their respective briefs of argument. The 1st respondent filed a cross-appeal which he supported with cross-appellant’s brief of argument. The appellant equally filed an appellant’s rely brief of argument. The two issues for determination which are similar in nature were distilled as follows:-
1. “Whether the learned justices of the Court of Appeal were right in deciding that the order of the trial court, that is Federal High Court of 16/11/2000 was a nullity “having been made suo motu.
2. Whether the learned justices of the Court of Appeal were right in deciding that the order of the trial court, that is, the Federal High court of 11/2/2002 amounted to pre-judging the reliefs in the substantive claim”.
My lords, I have carefully examined the proceedings of 16/11/2000, and the following faults are not in dispute.
i.    Gumel J. was sitting on the case for the first time, thus the case was for mention.
ii.    The counsel to the 3rd defendant was not served with hearing notice against that date.
iii.    There was application made by either of the parties on that day, and
iv.    The order made by the trial court was made gratuitously and suo motu.
 Considering the undisputed facts listed above I have no reason to tamper with the holding of the lower court that the order made was a nullity.

To be continued